Insufficient Evidence in a Gun Case; Third-Party Consents

United States v. Daniel Groves, Sr., No. 05-2902 (November 22, 2006): This case raises two issues that are related only in the sense that they arose in the same case.

Mr. Groves was charged with being a felon in possession of a gun. No gun was ever recovered, but the government called an expert who stated that Indiana (the place of the alleged crime) is not the home to any "major" manufacturers of shotguns. The expert never expanded on what he considered to be a "major" manufacturer.

On appeal, it was argued that there was insufficient proof that the gun had traveled in interstate commerce, an argument that was not developed at trial in the Rule 29 motion. Considering this argument on a plain error basis, the Seventh Circuit found it persuasive, while noting that it rarely reverses for insufficiency of the evidence. The Court concluded that it would be pure speculation to say that this gun was manufactured outside Indiana, when the only evidence was that Indiana had no "major" manufacturers. There could be enough "minor" manufacturers in Indiana to make it more likely than not that the gun was manufactured in the state. In response to the government argument that its prosecutions would be stymied whenever the gun was not recovered, the Court suggested that testimony from the witnesses describing the gun could often provide a basis for identifying it as an out-of-state weapon. The Court also offered the possibility that if an expert gives percentages as to how many shotguns are manufactured out of state, then the record might make it "highly likely" that the gun was not locally manufactured.

The government also argued that even if the gun had not traveled from out of state, its possession could "affect" interstate commerce. In this regard, it offered imaginary scenarios of the effects of gun possession. These fanciful arguments foundered on United States v. Lopez, 514 U.S. 549 (1995).

Mr. Groves was also charged with unlawful possession of ammunition, an increasingly popular tactic in weak gun cases. For this offense, the government had the actual ammunition, which it seized from his apartment after a claimed consent from Mr. Groves’ girlfriend. The Court reversed and remanded on the suppression issues, since the district court did not make findings of fact sufficiently detailed to permit meaningful appellate review. This part of the opinion contains a brief discussion of the Supreme Court’s recent decision in Georgia v. Randolph, 126 S. Ct. 1515 (2006), which concerns denial of consent by one tenant and grant by another.

Habeas Petitions: The Importance of the Oath

Saidi Kafo v. United States, No. 05-3034 (November 3, 2006): Mr. Kafo submitted a petition to set aside his conviction under 28 U.S.C. sec. 2255. He alleged that his attorney had not filed a notice of appeal even though he had requested the attorney to do so. The petition was not signed under penalty of perjury, and the district court dismissed, reasoning that he had no evidence to support his claim.

Reversing, the Seventh Circuit ruled that had he signed the petition under penalty of perjury, as required by Rule 2 of the special rules for 2255 cases, he would have presented sufficient evidence to require an evidentiary hearing on this question. The district court erred in not giving him a chance to attach a sworn affirmation to his allegations. Although his petition was deficient, the advisory notes suggest that the proper course is to give leave to amend.

In the district court, Mr. Kafo was pressing his petition on a pro se basis. Sometimes 2255 petitioners start the proceedings with a pleading prepared by counsel. It is a common understanding that a petition signed by counsel does not require the signature of the client under penalty of perjury. After this decision, the better practice would be for counsel to obtain the client’s affirmation. If the one-year statute of limitations is a problem, counsel should be able to file an affirmation after the initial pleading has been filed.

Booker Cert Grants

By now probably everyone knows that the Supreme Court has granted certiorari in two Booker cases, one in which the sentence was within the guidelines and one in which the sentence was below the guidelines and the reviewing court reversed. Mario Claiborne v. United States (06-5618) and Victor A. Rita v. United States (06-5754). What the Supreme Court will do with these two cases and what dicta it will create is beyond accurate prediction.

But the grant of cert should provide a powerful reminder that the current Seventh Circuit case law on Booker is just that—current. If the Supreme Court should create a more defendant-friendly landscape, we can be certain that those who did not keep these issues alive will have a tough time reaping the benefits of a new test.

United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005) and similar cases have been cited so often that by now it may seem hopeless to appeal sentences within the guidelines, and of course right now it is often hopeless (but not always—think United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005)). But filing a hopeless appeal is the only way to keep these issues alive for our clients.