On December 14, 2009, in the matter of United States v. R.H. (E.D. Wisc. 2009) Sheppard and Associates obtained relief for a defendant in a Relevant-Conduct Sentencing Hearing in United States District Court in Milwaukee, Wisconsin.  The case involved a Conspiracy to Distribute more than 1,000 Kilograms of Marijuana.  Cannabis had been transported from Northern California to Milwaukee, Indiana, and into Chicago.   Our defendant was charged as a distributor in the Chicago area.  The goverment had argued that, in addition to the amount of cannabis which the defendant personally transacted, he was responsible for 250 pounds of cannabis contained in duffel bags that were stored inside his vacation residence in Gary, Indiana by another individual.   That 250 pounds would have added six points to the defendant’s advisory Sentencing Guideline range and substantially increased his sentence.  Following an adversarial hearing on the matter, the District Court judge ruled that there was insufficient evidence that the quantity of cannabis in the duffel bags was reasonably forseeable to the defendant and, therefore, did not hold the defendant responsible for the additional 250 pounds.

Other successes in this case came in the forfeiture arena.  The defendan’t car, RV, plane, certain monies, and his vacation home were the subject of forfetiture provisions in the indictment but these properites were saved from forfeiture.  Litigation over the car was particulary noteworthy because, pursuant to our motion, the court held that the government’s Motion to Maintain Custody over the vehicle was untimely (a rare holding in forfeiture litigation).

In the DUI jury trial of People of the State of Illinois v. C.F. (case no. TP 131513) which proceeded to trial earlier this month at the Daley Center, Sheppard & Associates successfully barred the prosecution from entering the results of breathalyzer test into evidence. The matter had been set for jury trial pursuant to a Speedy Trial Demand and the prosecution only had nine days left in which to afford the defendant a speedy trial (it was the 151st day of the 160 day term). The prosecution answered ready for trial but they did not have the sergeant in court who certified the breathalyzer as accurate subsequent to the defendant’s breathalyzer test (the breathalyzer technician who actually administered the breath test to the defendant was in court). The prosecution attempted to introduce the breathalyzer log books into evidence which demonstrated that the breathalyzer was certified as accurate. The prosecution argued that the log  book were admissible as a business record.   Attorney Adam Sheppard argued that admitting the log books into evidence in this case violated the defendant’s Sixth Amendment right to confront the witnesses against her because the officer who certified the breathalyzer as accurate was not present in court and therefore was not subject to cross-examination.  Sheppard  pointed to the recent Supreme Court deicision of Melendez-Diaz v. Massachusetts as authority for their position.

In Melendez-Diaz (decided on June 25, 2009), the Supreme Court held that the admission into evidence of state lab certificates which certified that a substance seized by the police contained cocaine violated the defendant’s right to confront witnesses against him under Crawford v. Washington where the lab analysts were not present in court and available for cross-examination.  In Melendez-Diaz, Justice Scalia had also opined that a similar result might be warranted in cases involving breathalyzer reports.

The case in which Sheppard used Melendiaz-Diazto succesffuly bar the results of a breathalyzer test was one of the first of its kind in Cook County.