USA v. Marvin Smith, 04-3581.  In 1990, Smith was found guilty at trial of conspiracy to distribute in excess of 5 kilos of cocaine.  After trial, Smith was on bond and did not show up for sentencing for 14 years.  Smith appeals his 30 year sentence.  7th Circuit affirms Smith’s conviction but remands for re sentencing.

In a fact intensive appeal, Smith appeals the limitation of his lawyer’s cross examination of a key witness.  In short, the AUSA objects to the cross-examination by invoking the witnesses attorney/client privilege.  The 7th Circuit states that this is not a valid reason for the district court to limit cross examination as the privilege belongs to the witness not the government.  The question then becomes were Smith’s 6th Amendment Rights violated? 

Since this is a "core value" 6th amendment question, the 7th Circuit reviews de novo.  The 7th Circuit decides that the "core values" (to determine a witnesses motive to lie) of cross examination were allowed in Smith’s case. 

The 7th Circuit then addresses whether the "peripheral values" (the ability fro the lawyer to drive the point home to the jury) of cross examination were honored.  This is reviewed for abuse of discretion.  Since the district court’s ruling allowing the government to limit cross-examination for attorney/client purposes is incorrect, the district court abused it’s discretion here. 

The 7th Circuit then employs harmless error analysis to deny Smith’s claim.  In short, the 7th Circuit asks but for the limitation of cross examination would the outcome of the case have been different?  Here, the answer is no as the barred cross-examination was merely cumulative.  As such Smith’s conviction is affirmed. 

Smith gets a re sentencing because the district court did not do guideline analysis at the time of sentencing.

USA v. Paulino Juarez, 05-2435Juarez was sentenced to 20 years for possessing a firearm by a felon. Juarez appeals his denial by the district court of an evidentiary hearing on his motion to suppress evidence.  The 7th Circuit reviews this claim for abuse of discretion.

Here, Juarez submits an affidavit with his motion to suppress.  To get an evidentiary hearing, a defendant must provide sufficient information to the court for it determine that  a substantial claim is is presented on disputed issues of material fact, and these facts will determine the outcome of the motion. 

The 7th Circuit finds that Juarez’s affidavit did not conflict with the officer’s version of the events. Juarez points out the differences, but the 7th Circuit states that they are not material unless resolution of the disputed facts will change the outcome of the motion.  Here, Juarez concedes at oral argument that the facts in his affidavit gave the officer’s   reasonable suspicion for a Terry stop.  Thus, the district court did not abuse it’s discretion.

USA v. Lemuel Tyra, 05-2734.  Tyra appeals his 108 month crack possession because the district court did not use the magic words "sufficient but not greater than necessary" to meet the goals of 3553 at the time of sentencing.  Tyra did not contest his guidelines calculation.

The 7th Circuit holds that no magic words are necessary to be used by the district court to ensure that the correct sentencing standard was used.  All that must be shown is that the district court gave meaningful consideration to the sentencing factors in determining the sentence.  Here, the district court did and the sentence is affirmed.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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