The rules remain the same–while we won’t bore our readers with the vagaries of federal sentencing procedure, we will try to bring your attention to persuasive authorities you might find useful or interesting. December featured a few such cases, including the rare defense loss that is still a must-read because it affirms the fundamental sanity of frequently abused and/or gaslit defense attorneys facing judicial intemperance including, as in this case, threats to impose contempt sanctions as punishment for zealous advocacy.
- United States of America v. Jamison L. Krahenbuhl, No. 22-3264: A Wisconsin-originating case, this appeal focuses on two disorderly conduct convictions stemming from Krahenbuhl’s conduct at a VA clinic in Green Bay. Krahenbuhl shouted profanity at an employee of the clinic during a sleep apnea appointment, cursed out VA police who tried to question him as he stormed out of the clinic, and only chilled out (somewhat) after a can of pepper spray was brandished by one of the officers. Although he “calmed down” and ultimately left the scene, this did not dissuade the government from pursuing this prosecution. The Court concludes that Krahenbuhl’s conduct was not protected under the First Amendment and was prosecutable under the relevant enabling statute. Lesson of the day: Contrary to what you may have believed during your teenage punk phase, the First Amendment may not universally protect your “right” to tell police to f–k off.
- United States of America v. Michael Angelo Tovar, No. 22-3024: Tovar pleaded guilty to possessing a firearm in furtherance of a drug conspiracy. However, he then moved to withdraw that plea pre-sentencing, arguing that he was legally innocent because he was justified in possessing the firearm for self-protection; as a result, he alleged that his lawyer was ineffective in counseling him about the elements and defenses of the offense. The district court accepted the allegations in the motion as true, but denied a hearing and did not permit plea withdrawal. A simple assertion of innocence is not a fair and just reason to permit plea withdrawal, the colloquy was otherwise sufficient, and Tovar’s claims of legal innocence failed to satisfy the requirements for a necessity defense, so the district court did not err in denying the motion.
- United States of America v. Henry Underwood, No. 23-1303: Underwood was charged with being a felon in possession of a firearm. Shortly before trial, a disagreement with counsel led Underwood to pursue self-representation. This obviously did not work out, and Underwood now argues that the lower court failed to conduct a proper colloquy before permitting him to proceed pro se. Although the Seventh Circuit believes the colloquy was “not as thorough as it might have been,” it believes the court’s colloquy was minimally sufficient under the circumstances (while also encouraging courts to aspire to the higher standard outlined in the relevant benchbook). The Seventh Circuit also upholds Underwood’s contempt conviction which resulted when he refused to “snitch” on the person he alleged to be the “real” culprit in this case after waiving his Fifth Amendment right and testifying in his own defense. In other words, if you plan on going pro se, don’t get all your legal advice from the Chappelle show. (It’s dubious whether we can directly link that reference here; we’ll just hope we aren’t dating ourselves too badly).
- Timothy Bell v. Kwame Raoul and Glenn J. Alexander, No. 23-1757 (per curiam): Holding that the SCOTUS’ decision in Heck v. Humphrey does not permit a person subject to an involuntary civil commitment imposed by a state to challenge that commitment in federal court in a § 1983 action.
- United States of America v. Daryl G. McGhee, No. 22-3306: At his trial alleging unlawful possession of cocaine and a firearm, the State presented evidence that law enforcement was originally dispatched for a domestic violence call and that McGhee battered his wife. When McGhee prepared to take the stand, the court issued a sua sponte directive forbidding him from responding to the DV allegations in his testimony. Defense counsel was surprised by the ruling and pushed back. In response, the court threatened to take both McGhee and his lawyer into custody if they violated its order. Although defense counsel justifiably complained about the “chilling” effect this threat would have on his ability to zealously represent McGhee, the court was unpersuaded–even after the government conceded that the court’s ruling was overbroad. Despite agreeing that the district court erred, McGhee’s appeal fails because he cannot show this evidentiary error harmed him. However, he does earn a couple paragraphs reminding the district court that “words matter” and admonishing the district court for its conduct. A small victory, perhaps, but a useful reminder that judicial intemperance does not go universally unchecked.
