Weekly Case Digests June 22, 2020 June 26, 2020.

• Date: 26 June 2020

Byline: Rick Benedict

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Eugene Falls

Case No.: 19-3050

Officials: FLAUM, HAMILTON and ST. EVE, Circuit Judges.

Focus: Sentencing Supervised Release

Eugene Falls appeals the revocation of his supervised release. He argues that the district court erred during his revocation hearing by not conducting an explicit "interest of justice" analysis under Federal Rule of Criminal Procedure 32.1(b)(2)(C) before admitting an audio recording of an interview during which he confessed to the violation in question.

We held in United States v. Jordan that when a district court is deciding whether to admit hearsay at a revocation hearing, it must explicitly conduct an interest-of-justice analysis under Rule 32.1(b)(2)(C) by balancing the defendant's interest in confrontation against the government's stated reasons for not making the declarant available for cross-examination. 742 F.3d 276, 280 (7th Cir. 2014). Jordan does not apply here, however, because the probative statements in the audio recording were Falls's own non-hearsay statements.

Falls suggests that we should nevertheless extend Jordan to require an explicit application of Rule 32.1(b)(2)(C)'s interest-of-justice balancing test given his interest in questioning his interviewing officer about the nature and circumstances of his interview. Falls has not shown, however, that his interviewing officer was an "adverse witness" that Rule 32.1(b)(2)(C) entitled him to question subject to an interest-of justice determination. Accordingly, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Warren N. Barr, III

Case No.: 19-1238

Officials: MANION, KANNE, and BARRETT, Circuit Judges.

Focus: Plea & Sentencing Plea Withdrawal

In 2014, the federal government charged Warren Barr with federal crimes for his role in a fraudulent real-estate-selling scheme in Chicago. But when law-enforcement officers went to arrest Barr, they discovered he was living in Saudi Arabia. For months, FBI agents attempted to extradite Barr to the United States. Despite this effort, and before the agents could get to Barr, Saudi Arabian officials detained him for unrelated conduct.

Thereafter, Barr spent several months in a Saudi Arabian prisonand once he was released, federal agents brought him back to the United States to face the federal charges against him. Barr pled guilty to making false statements to a financial institution, and he then filed a variety of motions: he asked the district court to allow more time for newly retained counsel to obtain government clearance and review classified materials; to dismiss the indictment; and to withdraw his guilty plea. The district court denied these motions and entered an order finding Barr guilty.

At his sentencing hearing, Barr tried to argue that his time in Saudi Arabia should be a mitigating factor. The district court disagreed and prevented Barr from advancing this argument at the hearing. Frustrated with this result, Barr sought the judge's recusal. The judge denied the recusal motion and sentenced Barr to 87 months' imprisonment.

Now Barr challenges his sentence and the district court's orders denying his motions for additional time, the dismissal of the indictment, the withdrawal of his guilty plea, and the judge's recusal. Because we find no error in any of these rulings, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Maurice A. Withers

Case No.: 17-3448

Officials: EASTERBROOK, KANNE, and BRENNAN, Circuit Judges.

Focus: Jury Instructions

Maurice Withers made a living trafficking women and girls for sex. After months of abuse, numerous victims were identified by law enforcement. Withers was arrested and charged with nine counts of sex trafficking.

As the case proceeded to trial, the government proposed jury instructions on four of those counts that would have allowed Withers to be found guilty if he either knew or recklessly disregarded that force, threats of force, or coercion would be used to cause the women to engage in commercial sex acts. The "recklessly disregarded" mens rea element was absent, however, from the superseding indictment against Withers. The district court ruled, and the parties agreed, that the jury instructions would not include that phrase. Yet at trial the court's instructions included this phrase, and neither the court nor the parties recognized the error. A jury found Withers guilty on all counts.

On appeal Withers challenges the four convictions that included the inaccurate instructions, arguing the jury was improperly allowed to consider a lesser mental state. While we agree those instructions were plainly wrong, we conclude that the error did not affect Withers' substantial rights or otherwise prejudice his trial, so we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Haiyan Chen v. William P. Barr

Case No.: 19-2375

Officials: EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

Focus: Immigration Removal Order

Haiyan Chen, a citizen of China, entered the United States without inspection (that is, by stealth) in 2004. She was detected in 2010, and immigration officials opened removal proceedings. The charging document is called a "Notice to Appear," and a form with that caption was dated April 27, 2010. The form did not meet the statutory requirements for a Notice to Appear, however, because it omitted the time and place for a hearing. See 8 U.S.C. 1229(a)(1)(G)(i); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Immigration officials sent Chen a separate document, dated July 29, 2010, with that information. Chen appeared as ordered, and many other hearings followed. She asked for asylum, which an immigration judge denied on the ground that 8 U.S.C. 1158(a)(2)(B) gives aliens only one year after entering the United States to request that relief. The Board of Immigration Appeals dismissed her appeal on March 28, 2017, and we denied a petition for review. Chen v. Sessions, No. 17-1797 (7th Cir. Jan. 4, 2018) (nonprecedential).

In September 2018 Chen filed a motion asking the Board to reopen her case so that she could seek cancellation of removal, a remedy available to some aliens who have lived in the United States for a decade. She recognized that the motion was untimelya statute allows only 90 days after the Board's original decision, see 8 U.S.C. 1229a(c)(7)(C)(i)but asked for the benefit of equitable tolling. She also recognized that she had not sought cancellation of removal during the original proceedings, even though they continued past the tenth anniversary of her arrival. She contended that, until the Supreme Court issued Pereira in June 2018, neither she nor her lawyers...