United States v. Marcus O. Evans, Samuel Tidwell, Gregory Fort, & Helen L. Fort, 92 F.3d 540 (7th Cir. 1996). · Go Syfert
United States v. Marcus O. Evans, Samuel Tidwell, Gregory Fort, & Helen L. Fort, 92 F.3d 540 (7th Cir. 1996). Cases Citing This Book View Copy Cite
“we cannot think of any reason for distinguishing between an owner and a tenant, or for that matter between an owner or tenant on the one hand and a sublessee or intermittent occupant . . . on the other.”
77 citation events (44 in the last 25 years) across 19 distinct courts.
Strongest positive: Brian E. Hardin v. State of Indiana (ind, 2020-06-23)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Brian E. Hardin v. State of Indiana (2×) also: Cited "see, e.g."
Ind. · 2020 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
we cannot think of any reason for distinguishing between an owner and a tenant, or for that matter between an owner or tenant on the one hand and a sublessee or intermittent occupant . . . on the other.
discussed Cited as authority (rule) David Perez v. United States of America
N.D. Ill. · 2025 · confidence medium
“Criminal defense lawyers, like other lawyers, do not have an ethical duty to make groundless arguments; indeed, they have an ethical duty not to make such arguments.” United States v. Evans, 92 F.3d 540, 544 (7th Cir. 1996).
discussed Cited as authority (rule) Armour v. United States
N.D. Ind. · 2024 · confidence medium
“When an attorney has made a reasonable, informed, professional judgment that an objection lacks merit; despite being bound to act in their client’s best interests—which includes making arguments that the attorney believes may be unsuccessful—that attorney has an ethical duty not to raise the meritless objection.” See United States v. Evans, 92 F.3d 540, 544 (7th Cir. 1996) (“Criminal defense lawyers, like other lawyers, do not have an ethical duty to make groundless arguments; indeed, they have an ethical duty not to make such arguments.
cited Cited as authority (rule) Elion v. United States
S.D. Ill. · 2024 · confidence medium
United States v. Evans, 92 F.3d 540, 544 (7th Cir. 1996).
examined Cited as authority (rule) Peacock v. State (4×) also: Cited "see", Cited "see, e.g."
Ga. · 2022 · confidence medium
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.10 (c) Vehicles on or near described premises (6th ed.) (explaining that “[i]t has often been held that a search warrant authorizing the search of certain premises covers automobiles found on those premises, provided of course that the place searched in the vehicle could contain one of the items described in the search warrant,” and collecting cases). 17 States v. Evans, 92 F3d 540, 543-544 (7th Cir. 1996); Massey v. Com., 305 SW2d 755, 756 (Ky. 1957).
discussed Cited as authority (rule) Haldane v. Saul
N.D. Ill. · 2022 · confidence medium
See, e.g., Prill, 23 F.4th at 751 3 The Seventh Circuit has frequently criticized this type of presentation, see Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 513 (7th Cir. 2011); United States v. Pearson, 340 F.3d 459, 464 (7th Cir. 2003); United States v. Evans, 92 F.3d 540, 546 (7th Cir. 1996), calling it, variously, “the equivalent of a laser light show of claims [that] may be so distracting as to disturb our vision and confound our analysis.” United States v. Lathrop, 634 F.3d 931, 936 (7th Cir. 2011) (collecting cases); a “scattergun approach [that] generally does not serve …
discussed Cited as authority (rule) Art Akiane LLC v. Art & SoulWorks LLC
N.D. Ill. · 2021 · confidence medium
The Seventh Circuit has repeatedly criticized this type of presentation, see Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 513 (7th Cir. 2011); United States v. Pearson, 340 F.3d 459, 464 (7th Cir. 2003); United States v. Evans, 92 F.3d 540, 546 (7th Cir. 1996), calling it, variously, “the equivalent of a laser light show of claims may be so distracting as to disturb our vision and confound our analysis.” United States v. Lathrop, 634 F.3d 931, 936 (7th Cir. 2011) (collecting cases); a “scattergun approach [that] generally does not serve [clients] well,” Cole v. Comm'r, 637 F.3d…
discussed Cited as authority (rule) Kelly v. Saul
N.D. Ill. · 2021 · confidence medium
What the plaintiff seems to be going for here is a remand by a “thousand [paper] cuts.” The Seventh Circuit has frequently criticized this type of presentation, see Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 513 (7th Cir. 2011); United States v. Pearson, 340 F.3d 459, 464 (7th Cir. 2003); United States v. Evans, 92 F.3d 540, 546 (7th Cir. 1996), calling it, variously, “the equivalent of a laser light show of claims may be so distracting as to disturb our vision and confound our analysis.” United States v. Lathrop, 634 F.3d 931, 936 (7th Cir. 2011) (collecting cases); a “sca…
discussed Cited as authority (rule) Barnett v. Saul
N.D. Ill. · 2021 · confidence medium
The Seventh Circuit has frequently criticized this type of brief-writing, see Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 513 (7th Cir. 2011); United States v. Pearson, 340 F.3d 459, 464 (7th Cir. 2003); United States v. Evans, 92 F.3d 540, 546 (7th Cir. 1996) calling it, variously, “the equivalent of a laser light show of claims may be so distracting as to disturb our vision and confound our analysis.” United States v. Lathrop, 634 F.3d 931, 936 (7th Cir.2011) (collecting cases); a “scattergun approach [that] generally does not serve [clients] well, Cole v. Comm'r, 637 F.3d 767…
discussed Cited as authority (rule) Cloney, Jr v. Saul
N.D. Ill. · 2020 · confidence medium
The Seventh Circuit has frequently criticized this type of brief-writing, see Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 513 (7th Cir. 2011); United States v. Pearson, 340 F.3d 459, 464 (7th Cir. 2003); United States v. Evans, 92 F.3d 540, 546 (7th Cir. 1996) calling it, variously, “the equivalent of a laser light show of claims may be so distracting as to disturb our vision and confound our analysis.” United States v. Lathrop, 634 F.3d 931, 936 (7th Cir.2011) (collecting cases); a “scattergun approach [that] generally does not serve [clients] well, Cole v. Comm'r, 637 F.3d 767…
discussed Cited as authority (rule) Wieringa v. Saul
N.D. Ill. · 2020 · confidence medium
The Seventh Circuit has frequently criticized this type of brief-writing, see Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 513 (7th Cir. 2011); United States v. Pearson, 340 F.3d 459, 464 (7th Cir. 2003); United States v. Evans, 92 F.3d 540, 546 (7th Cir. 1996) calling it, variously, “the equivalent of a laser light show of claims may be so distracting as to disturb our vision and confound our analysis.” United States v. Lathrop, 634 F.3d 931, 936 (7th Cir.2011) (collecting cases); a “scattergun approach [that] generally does not serve [clients] well, Cole v. Comm'r, 637 F.3d 767…
discussed Cited as authority (rule) United States v. $9,171.00 UNITED STATES CURRENCY
S.D. Ind. · 2020 · confidence medium
See United States v. Percival, 756 F.2d 600, 612 (7th Cir. 1985); United States v. Evans, 92 F.3d 540, 543 (7th Cir. 1996) (stating this rule “is not tied to ownership” of the premises); see United States v. Asselin, 775 F.2d 445, 446-47 (1st Cir. 1985) (warrant for search of premises authorized search of disabled vehicle parked adjacent to attached carport); United States v. Napoli, 530 F.2d 1198, 1200 (5th Cir. 1976) (warrant for search of premises authorized search of camper parked in the driveway); United States v. Reivich, 793 F.2d 957, 963 (8th Cir. 1986) (“[A] vehicle found on a p…
discussed Cited as authority (rule) Brian E. Hardin v. State of Indiana
Ind. Ct. App. · 2019 · confidence medium
Id. (citing United State v. Evans, 92 F.3d 540, 543 (7th Cir. 1996) (search of trunk of vehicle in attached garage pursuant to warrant for house “with detached garage”), cert. denied 519 U.S. 1020 , 117 S. Ct. 537 (1996); United States v. Rivera, 738 F. Supp. 1208, 1218 (N.D.
discussed Cited as authority (rule) Eugene Downs v. United States
6th Cir. · 2018 · confidence medium
Thus, “[t]he term ‘sentencing1 in legal as in ordinary language refers to the pronouncing of sentence by the judge in open court, rather than to the subsequent recording of the sentence on a docket sheet.” United States v. Evans, 92 F.3d 540, 544 (7th Cir. 1996).
discussed Cited as authority (rule) State v. Hidalgo
Neb. · 2017 · confidence medium
LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 4.10(c) (5th ed. 2012) (citing cases). 19 Id. 20 U.S. v. Evans, 92 F.3d 540, 543 (7th Cir. 1996). 21 2 LaFave, supra note 18. - 922 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STATE v. HIDALGO Cite as 296 Neb. 912 We agree with Hidalgo that the warrant did not explicitly provide that vehicles found on the property could be searched.
discussed Cited as authority (rule) Alva Oliver Funk v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2016 · confidence medium
If they Court of Appeals of Indiana | Memorandum Decision 27A02-1601-CR-170 | December 29, 2016 Page 15 of 26 are searching for cocaine, they can search a container large enough to hold a gram, or perhaps less.” United States v. Evans, 92 F.3d 540, 543 (7th Cir. 1996) (citations omitted).
discussed Cited as authority (rule) People v. Herrera (2×)
Colo. · 2015 · confidence medium
When a searching officer executes a valid warrant, he "may search closed containers [found within the authorized space] so long as the containers are of the type within which the items ... might reasonably be found." People in Interest of D.F.L., 931 P.2d 448, 452 (Colo.1997). ¶ 41 To meet this requirement, the container must be (1) "large enough to contain the contraband or evidence" that is the subject of the warrant and (2) a place where that evidence "might reasonably [have been] expected to be secreted." Id. (alteration in original) (quoting United States v. Evans, 92 F.3d 540, 543 (7th …
cited Cited as authority (rule) United States v. Zachary Kruse
8th Cir. · 2015 · confidence medium
If they are looking for an adolescent hippopotamus, they can search the living room or garage but not the microwave oven.” United States v. Evans, 92 F.3d 540, 543 (7th Cir.1996).
discussed Cited as authority (rule) United States v. Michael Borostowski
7th Cir. · 2014 · confidence medium
In United States v. Evans, 92 F.3d 540, 543 (7th Cir.1996), we concluded that “a car parked in a garage is just another interior container, like a closet or a desk.” When the police possessed a warrant to search a garage for drugs, we noted that the ownership of a car within the garage did not play into the lawfulness of the search of the car “unless it obviously belonged to someone wholly uninvolved in the criminal activities going on in the house.” Evans, 92 F.3d at 543-44 .
discussed Cited as authority (rule) State v. Smith
La. · 2002 · confidence medium
United States v. Evans, 92 F.3d 540, 543 (7th Cir.1996); United States v. Singer, 970 F.2d 1414, 1418 (5th Cir.1992); United States v. Percival, 756 F.2d 600, 612 (7th Cir.1985); United States v. Napoli, 530 F.2d 1198, 1200-01 (5th Cir.1976); see also 2 Wayne R.
discussed Cited as authority (rule) United States v. Wisch, Kenneth
7th Cir. · 2001 · confidence medium
By applying the "Entry of Judgment Rule" consistently with the tolling requirements of Rule 4(b) of the Federal Rules of Appellate Procedure, we minimize any confusion about the appellate statute of limitations that might lead to the forfeiture of direct appeals due to untimely filings./2 See United States v. Evans, 92 F.3d 540, 545 (7th Cir. 1996).
discussed Cited as authority (rule) United States v. Kenneth A. Wisch
7th Cir. · 2001 · confidence medium
By applying the “Entry of Judgment Rule” consistently with the tolling requirements of Rule 4(b) of the Federal Rules of Appellate Procedure, we minimize any confusion about the appellate statute of limitations that might lead to the forfeiture of direct appeals due to untimely filings. 2 See United States v. Evans, 92 F.3d 540, 545 (7th Cir.1996).
discussed Cited as authority (rule) Tourus Records, Inc. v. Drug Enforcement Administration (2×)
D.C. Cir. · 2001 · confidence medium
See Arango, 115 F.3d at 929 (“The indigency exception ... is an important means of affording equal access to [judicial forfeiture] hearings and the right to proceed as an indigent must not be arbitrarily denied.”); United States v. Evans, 92 F.3d 540, 542 (7th Cir.1996) (“The waiver of the bond is mandatory if the claimant is in fact a pauper.”).
cited Cited as authority (rule) Platteville Area Apartment Association v. City of Platteville
7th Cir. · 1999 · confidence medium
United States v. Evans, 92 F.3d 540, 543 (7th Cir.1996); United States v. Eschweiler, 745 F.2d 435, 439 (7th Cir.1984); United States v. Jackson, 825 F.2d 853, 865 (5th Cir.1987) (en banc).
discussed Cited as authority (rule) United States v. Robert Kamoga
7th Cir. · 1999 · confidence medium
“That does not mean that others must have played marionette to the defendant’s puppeteer,” Mustread, 42 F.3d at 1104 , and “[t]he fact that fewer than five [of the other participants] actually reported to [the defendant] is immaterial.” United States v. Evans, 92 F.3d 540, 545 (7th Cir.1996).
cited Cited as authority (rule) United States v. Jesse Webster, Also Known as Lee Noble, Also Known as La Noble, Also Known as Lee Watts
7th Cir. · 1998 · confidence medium
United States v. Evans, 92 F.3d 540, 545 (7th Cir.1994), certiorari denied, 117 U.S. 404 ; United States v. Bailey, 97 F.3d 982, 985 (7th Cir.1996).
discussed Cited as authority (rule) United States v. Samuel K. Tidwell
7th Cir. · 1998 · confidence medium
Following the denial of his direct appeal, United States v. Evans, 92 F.3d 540, 541 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 537 , 136 L.Ed.2d 422 (1996), Tidwell sought resentencing based on the retroactive application of Amendment 505 of the sentencing guidelines, which lowered the maximum base offense level dictated by the Drug Quantity Table in U.S.S.G. § 2D1.1 from level 42 to level 38.
discussed Cited as authority (rule) United States v. Ceferino Cruz (2×)
1st Cir. · 1997 · confidence medium
See, e.g., United States v. Catlett, 97 F.3d 565, 569-70 (D.C.Cir.1996); United States v. Evans, 92 F.3d 540, 541-42 (7th Cir.), cert. denied, - U.S. -, 117 S.Ct. 537 , 136 L.Ed.2d 422 (1996).
discussed Cited as authority (rule) Burgos v. United States
N.D. Ill. · 1997 · confidence medium
United States v. Evans, 92 F.3d 540, 544 (7th Cir.) (counsel’s refusal to make frivolous argument “can never be a ground for arguing ineffective assistance of counsel”), cert. denied, — U.S. ---, 117 S.Ct. 537 , 136 L.Ed.2d 422 (1996).
discussed Cited as authority (rule) Lester W. Gilbert v. United States
7th Cir. · 1997 · confidence medium
"The question whether a civil forfeiture proceeding is punishment within the meaning of the Eighth Amendment has now been answered 'no' by the Supreme Court." United States v. Evans, 92 F.3d 540, 542 (7th Cir.), cert. denied, 117 S.Ct. 537 (1996) (citing United States v. Ursery, 116 S.Ct. 2135, 2146-47 (1996)).
discussed Cited as authority (rule) John K. Lanter v. United States
7th Cir. · 1997 · confidence medium
United States v. Evans, 92 F.3d 540, 542 (7th Cir.1996) ("claim was frivolous from the start because while there was a seizure, ripening into an administrative forfeiture, there was no judicial forfeiture"; a judicial forfeiture occurs only when the person "takes the proper steps to get [his property] returned yet fails, so that he loses the property as the result of a judgment"; when the person fails to take such steps, "no judgment is entered (so no jeopardy attaches) and the property is treated as abandoned"); United States v. Senn, 102 F.3d 327 , 333 & n. 8 (7th Cir.1996) ("jeopardy attach…
discussed Cited as authority (rule) James C. Segars v. United States
7th Cir. · 1997 · confidence medium
Cf. United States v. Robinson, 96 F.3d 246, 250-51 (7th Cir.1996) (remand where court "cannot be sure that the jury did not base its verdict completely on 'mere possession' evidence," which therefore "leave[s] open the possibility that jury's guilt verdict rested on a basis now soundly rejected by the Supreme Court"); United States v. Evans, 92 F.3d 540, 542 (7th Cir.1996) (absence of evidence that defendant made any "active use" of firearms is "irrelevant" because there was "plenty of evidence that [he] 'carried' guns within the meaning of the statute, even if he didn't 'use' them"); United S…
discussed Cited as authority (rule) Gibson Nwafor v. United States (2×) also: Cited "see"
7th Cir. · 1997 · confidence medium
Because the indictment was not defective, his counsel's failure to challenge it does not constitute deficient performance, see United States v. Evans, 92 F.3d 540, 544 (7th Cir.), cert. denied, 117 S.Ct. 537 (1996) (noting that it does not constitute deficient performance to raise a meritless claim), and thus cannot constitute "cause" for Nwafor's procedural default. 1 4 Nwafor's § 2255 motion also alleges a separate Sixth Amendment violation as a ground for vacating his conviction and sentence.
cited Cited as authority (rule) State v. Rosendahl
Mo. Ct. App. · 1997 · confidence medium
Before jeopardy could attach there must be a “judicial forfeiture” wherein a party “lose[s] the property as a result of a judgment.” United States v. Evans, 92 F.3d 540, 542-43 (7th Cir.1996).
discussed Cited as authority (rule) In the Interest of Dfl
Colo. · 1997 · confidence medium
Based in part on Ross , federal courts have consistently applied the general proposition that a container found within a dwelling or residence that is subject to a validly issued warrant may be searched by law enforcement officers if it “is large enough to contain the contraband or evidence that [the officers] are looking for.” United States v. Evans, 92 F.3d 540, 543 (7th Cir.1996); see also United States v. Rutkowski, 877 F.2d 139, 141 (1st Cir.1989)(“Any container situated within residential premises which are the subject of a validly-issued warrant may be searched if it *452 is reaso…
cited Cited as authority (rule) United States v. Darin Senn
7th Cir. · 1996 · confidence medium
See United States v. $87,118.00, 95 F.3d 511, 515 (7th Cir.1996); United States v. Evans, 92 F.3d 540, 542 (7th Cir.), cert. denied, — U.S. -, 117 S.Ct. 404 , 136 L.Ed.2d 318 (1996).
discussed Cited as authority (rule) United States v. Richard Bailey
7th Cir. · 1996 · confidence medium
A majority of the full court recently declined to examine this very question, see United States v. Rodriguez, 73 F.3d 161, 162 (7th Cir.1996), and as in United States v. Evans, 92 F.3d 540, 545 (7th Cir.1996), it would be inappropriate for this panel to attempt to reopen the issue.
discussed Cited "see" United States v. Arthur Miles
7th Cir. · 2023 · signal: see · confidence high
See United States v. Evans, 92 F.3d 540 , 543–44 (7th Cir. 1996) (per- mitting the police to search any car parked in a garage “unless it is apparent that the [car] does not belong to anyone con- nected with the illegal activity—a condition that will rarely be satisfied” even when the officers know the identity a of home’s owner).
discussed Cited "see" Sandoval v. United States
C.D. Ill. · 2022 · signal: see · confidence high
See United States v. Evans, 92 F.3d 540, 544 (7th Cir. 1996) (counsel's refusal to make frivolous argument “can never be a ground for arguing ineffective assistance of counsel”); Carpenter v. United States, 492 F. Supp. 2d 912, 922 (N.D.
cited Cited "see" United States v. Helen Fort
7th Cir. · 2013 · signal: see · confidence high
See United States v. Evans, 92 F.3d 540 (7th Cir. 1996).
cited Cited "see" United States v. Fort
7th Cir. · 2013 · signal: see · confidence high
See United States v. Evans, 92 F.3d 540 (7th Cir.1996).
discussed Cited "see" United States v. Michael Gerald Gamboa
8th Cir. · 2006 · signal: accord · confidence high
See United States v. Hughes, 940 F.2d 1125, 1127 (8th Cir.) (“A lawful search extends to all areas and containers in which the object of the search may be found.”), cert. denied, 502 U.S. 896 , 112 S.Ct. 267 , 116 L.Ed.2d 220 (1991); accord United States v. Evans, 92 F.3d 540, 543 (7th Cir.) (“If they are looking for a canary’s corpse, they can search a cupboard, but not a locket.
discussed Cited "see" United States v. Michael Gamboa
8th Cir. · 2006 · signal: accord · confidence high
See United States v. Hughes, 940 F.2d 1125, 1127 (8th Cir.) ("A lawful search extends to all areas and containers in which the object of the search may be found."), cert. denied, 502 U.S. 896 (1991); accord United States v. Evans, 92 F.3d 540, 543 (7th Cir.) ("If they are looking for a canary's corpse, they can search a cupboard, but not a locket.
discussed Cited "see" Howell, Robert N. v. Bezy, Mark A.
7th Cir. · 2006 · signal: see · confidence high
See United States v. Evans, 92 F.3d 540, 542 (7th Cir.1996) (jeopardy does not attach unless judgment is entered); United States v. Branham, 97 F.3d 835, 843 (6th Cir.1996) (collecting cases); see also Howell, 354 F.3d at 695 (Howell’s automobile was seized pursuant to an administrative proceeding, which did “not confer in rem jurisdiction on any court, because it bypasse[d] the judicial system”).
cited Cited "see" United States of America, Plaintiff-Appellee/cross-Appellant v. Michael D. Andreas and Terrance S. Wilson, Defendants-Appellants/cross-Appellees
7th Cir. · 2000 · signal: see · confidence high
See United States v. Evans, 92 F.3d 540, 545 (7th Cir.1996) (recognizing possibility of collective leadership fulfilling § 3B1.1); United States v. Barnes, 993 F.2d 680, 685 (9th Cir.1993).
cited Cited "see" United States v. Andreas, Michael D.
7th Cir. · 2000 · signal: see · confidence high
See United States v. Evans, 92 F.3d 540, 545 (7th Cir. 1996) (recognizing possibility of collective leadership fulfilling sec. 3B1.1); United States v. Barnes, 993 F.2d 680, 685 (9th Cir. 1993).
cited Cited "see" United States v. Stephen Golden
7th Cir. · 1996 · signal: see · confidence high
See United States v. Evans, 92 F.3d 540, 542 (7th Cir.1996) (citations omitted).
discussed Cited "see, e.g." State of Indiana v. Lawrence Lucas
Ind. Ct. App. · 2018 · signal: see, e.g. · confidence low
See e.g. , United State v. Evans , 92 F.3d 540 , 543 (7th Cir. 1996) (search of trunk of vehicle in attached garage pursuant to warrant for house "with detached garage"), cert. denied 519 U.S. 1020 , 117 S.Ct. 537 , 136 L.Ed.2d 422 (1996) ; see also United States v. Rivera , 738 F.Supp. 1208 , 1218 (N.D.
discussed Cited "see, e.g." United States v. Carletos E. Hardamon, Also Known as Cj
7th Cir. · 1999 · signal: see also · confidence medium
As we have stated before “ ‘[s]ection 3B1.1 does not require that [a defendant] knew of or exercised control over all of the participants.’ ” United States v. Kamoga, 177 F.3d 617, 621 (7th Cir.1999) (quoting United States v. Dota, 33 F.3d 1179, 1189 (9th Cir.1994)); see also United States v. Evans, 92 F.3d 540, 545 (7th Cir.1996) *852 (“[t]he fact that fewer than five [of the other participants] actually reported to [the defendant] is immaterial.”)- Instead, § 3B1.1 is designed to assess relative responsibility for the crime.
discussed Cited "see, e.g." Arango v. United States Department of the Treasury
11th Cir. · 1997 · signal: see also · confidence medium
See also United States v. Evans, 92 F.3d 540, 542 (7th Cir.), cert. denied, - U.S. -, 117 S.Ct. 404, 136 L.Ed.2d 318 (1996) ("If pauper status is denied, the claimant can ... challenge the denial by filing an action in federal district court to set aside the denial as ‘arbitrary’ or 'capricious' within the meaning of the Administrative Procedure Act.”); Toure v. United States, 24 F.3d 444, 445-46 (2d Cir. 1994) (recognizing "jurisdiction to review the procedure by which the forfeiture was effected”); United States v. Woodall, 12 F.3d 791, 793 (8th Cir.1993) ("federal courts have univer…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Marcus O. EVANS, Samuel Tidwell, Gregory Fort, and Helen L. Fort, Defendants-Appellants
94-3633, 94-3690, 94-3691, 94-3727 and 95-3112.
Court of Appeals for the Seventh Circuit.
Sep 19, 1996.
92 F.3d 540
Barry Rand Elden, Chief of Appeals, Office of the U.S. Atty., Crim. Appellate Div., Chicago, IL, John G. McKenzie, Keith C. Syfert, Office of the U.S. Atty., Rockford, IL, Elizabeth Collery (argued), Dept, of Justice, Crim. Div., Washington, DC, for the U.S. in No. 94-3633., Barry Rand Elden, Chief of Appeals, Office of the U.S. Atty., Crim. Appellate Div., Chicago, IL, Elizabeth Collery (argued), Dept, of Justice, Crim. Div., Washington, DC, for the U.S. in Nos. 94-3690, 94-3691, 94-3727 and 95-3112., Gary Seeling (argued), Waukesha, WI, for Marcus Evans., Howard B. Levy (argued), Chicago, IL, for Samuel Tidwell in Nos. 94-3690, 95-3112., Douglass C. Hochstetler (argued), Marshall, O’Toole, Gerstein, Murray & Borun, Chicago, IL, for Greg Fort., Mark A Byrd (argued), Byrd & Taylor, Rockford, IL, for Helen L. Fort.
Posner, Cummings, Wood.
Cited by 89 opinions  |  Published
POSNER, Chief Judge.

The four defendants who are the appellants in this court were tried together before a jury for offenses relating to the sale of powder and crack cocaine and were convicted. Three were sentenced to life imprisonment without possibility of parole and the fourth (Helen Fort) to 26 years. We count 29 separate issues and 390 pages of briefs in these appeals, but most of the issues have too little merit to warrant discussion.

The appellants were members of a 19-person drug ring active between 1989 and 1993 in Rockford, Illinois. Seven, including all four appellants, constituted a core group that called itself the “Mob.” The core group bought powder cocaine in kilogram quantities and, with the aid of the peripheral members, resold the cocaine, at a rate of approximately two or three kilograms a month, in smaller quantities, often after “cooking” it into crack. Most of the crack was sold in “dime bags,” which generally sell for $10 apiece, at crack houses operated by the ring. The peripheral members either worked at the crack houses (“workers”) or carried drugs to, and the proceeds of the sales of the drugs from, the crack houses (“runners”). The core group met roughly once a week, made decisions by[*542] majority vote, and divided the profits of the ring among the members of the group equally. The group supervised the workers, runners, crack cookers, and other peripheral members of the conspiracy, as well as procuring the kilogram quantities of drugs, repacking them in the dime bags, managing the ring’s money, and performing other tasks, including some performed regularly by workers and runners.

The core members tended to go about heavily armed—and not only with the bottle of Dom Perignon that they broke over the head of one of their runners in a dispute about money. They had pistols and assault rifles galore along with bulletproof vests, and they shot and were shot, though no fatalities are mentioned. A search of defendant Tid-well’s residence turned up four loaded.guns, and he was convicted, along with drug trafficking, of using or carrying a firearm during and in relation to a drug offense, in violation of 18 U.S.C. § 924(c). There was no evidence that he “used” any of his guns in the new sense of “use” that the Supreme Court impressed upon the statute in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). That is, there is no evidence that he made any active use of these guns; they may, so far as the evidence shows, have been purely for protection. All this is irrelevant. There is no objection to the instruction, which did not attempt to define the terms “use” or “carry,” and plenty of evidence that Tidwell “carried” guns within the meaning of the statute, even if he didn’t “use” them within that meaning. If a jury is directed to convict if it finds either x or y (here, either use or carriage), and there is no evidence of * but plenty of y, and it convicts, the conviction will stand despite the absence of evidence of x. Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 474, 116 L.Ed.2d 371 (1991); United States v. Briscoe, 65 F.3d 576, 584 n. 9 (7th Cir.1995). The jury is assumed to have found the facts in accordance with the evidence. Tidwell is therefore not entitled to a new trial on the charge that he violated section 924(c).

The issue pressed hardest by defendant Helen Fort is whether she was placed in double jeopardy by the forfeiture of some $28,000 in personal property (weapons, jewelry, and a bank account) that the FBI seized when she was arrested. The question whether a civil forfeiture proceeding is punishment within the meaning of the Eighth Amendment has now been answered “no” by the Supreme Court. United States v. Ursery, — U.S. -, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). But the claim was frivolous from the start because while there was a seizure, ripening into an administrative forfeiture, there was no judicial forfeiture. United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.1994); United States v. Idowu, 74 F.3d 387, 394-96 (2d Cir.1996). A seizure turns into a judicial forfeiture when the person whose property has been seized takes the proper steps to get it returned yet fails, so that he loses the property as the result of a judgment. If he fails to take these steps, no judgment is entered (so no jeopardy attaches) and the property is treated as abandoned; this is administrative forfeiture.

Concretely, when a federal law enforcement agency seizes property that the person it is seized from would like to get back, the person must file a claim with the agency, in this case the FBI, and either post a bond (normally 10 percent of the value of the property seized) to cover the agency’s costs of storage and maintenance of the property or persuade the agency to allow the claimant to proceed in forma pauperis, without having to post a bond. 19 U.S.C. § 1608; 21 U.S.C. § 881(d); 19 C.F.R. § 162.47(e); Linarez v. U.S. Dept. of Justice, 2 F.3d 208, 210 (7th Cir.1993). If pauper status is denied, the claimant can either post the bond or challenge the denial by filing an action in federal district court to set aside the denial ás “arbitrary” or “capricious” within the meaning of the Administrative Procedure Act. 5 U.S.C. §§ 704, 706(2)(a); see Jones v. DEA 801 F.Supp. 15, 24 (M.D.Tenn.1992); Application of Williams, 628 F.Supp. 171, 173 (E.D.N.Y.1986). The waiver of the bond is mandatory if the claimant is in fact a pauper, 19 C.F.R. § 162.47(e), and it would be anomalous if the government could pauperize you by seizing all your property and then prevent you from challenging the seizure by denying you pauper status, thus requiring you to post a bond[*543] with money that you don’t have. Once the bond is posted or pauper’s status granted, the administrative claim is perfected and if the agency wants to keep the property it must seek a court order of forfeiture. 19 U.S.C. § 1608; 21 C.F.R. § 1316.78; Linarez v. U.S. Dept. of Justice, supra, 2 F.3d at 210. That is judicial forfeiture. No order was sought here because Helen Fort was denied pauper status, did not challenge the denial though represented by counsel, and did not post a bond. She thus abandoned the property — or perhaps had never had any interest in it.

Gregory Fort complains about the seizure of drugs from the trunk of his car. One of the gang’s crack houses was a two-family house at 1433 Mulberry Street in Rockford. Upon an ample showing of probable cause to believe that it was indeed a crack house and that Gregory Fort resided there, at least intermittently, the police obtained a warrant to search the house “with detached garage.” When they executed the warrant the police found a car parked in the garage, searched it, and found several packages of powder and crack cocaine in the trunk. The car belonged to Gregory Fort, who argues that the police should have gotten another warrant before searching the car. Our review of this issue has been hampered by the absence of the warrant from the record. All we have are some excerpts submitted by the prosecutor. The appellant did not include the warrant in the appellate record, so is deemed to acknowledge the accuracy and representativeness of the excerpts.

United States v. Percival, 756 F.2d 600, 612-13 (7th Cir.1985), holds that a warrant to search a residence and attached garage authorizes the search of a car found in the garage. We do not understand Fort to be challenging the soundness of that decision or to be making anything of the difference between an attached and a detached garage. But he points out that Percival was (or at least so our opinion assumed) the owner of the house and garage searched there, and he urges us to confine the holding of the Percival case to owners. We cannot think of any reason for distinguishing between an owner and a tenant, or for that matter between an owner or tenant on the one hand and a sublessee or intermittent occupant — either of which terms may be a more apt description of Fort’s position at 1433 Mulberry Street— on the other hand. The police knew it was a crack house that Fort, whom they had reason to believe was involved in the drug trade, frequented and in which he sometimes resided. It was reasonable for them to suppose that his use of the property might extend to the garage, since he had been seen driving in the vicinity of 1433 Mulberry Street, and that either the house or the garage might contain contraband or evidence of crime.

A warrant to search a house or other building authorizes the police to search any closet, container, or other closed compartment in the building that is large enough to contain the contraband or evidence that they are looking for. Id. at 612; United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 2170-71, 72 L.Ed.2d 572 (1982); United States v. Griffin, 827 F.2d 1108, 1114-15 (7th Cir.1987); United States v. Gray, 814 F.2d 49, 51 (1st Cir.1987). If they are looking for a canary’s corpse, they can search a cupboard, but not a locket. If they are looking for an adolescent hippopotamus, they can search the living room or garage but not the microwave oven. If they are searching for cocaine, they can search a container large enough to hold a gram, or perhaps less.

It seems to us that a car parked in a garage is just another interior container, like a closet or a desk. If, as in this case, the trunk or glove compartment is not too small to hold what the search warrant authorizes the police to look for, they can search the trunk and the glove compartment. That, we think, is the holding of Percival; it is not tied to ownership. Decisions of the other circuits are in accord. United States v. Vaandering, 50 F.3d 696, 701 (9th Cir.1995); United States v. Sturmoski, 971 F.2d 452, 458 (10th Cir.1992); United States v. Singer, 970 F.2d 1414, 1417-18 (5th Cir.1992).

Although the police happened to know, that the car they were searching was Fort’s, it does not matter whose it is unless it obviously belonged to someone wholly uninvolved in the criminal activities going on in[*544] the house. If an innocent guest leaves a trunk in his host’s house and the police obtain a search warrant to search the house for something small enough to fit in the trunk, then, unless it is apparent that the trunk does not belong to anyone connected with the illegal activity—a condition that will rarely be satisfied—the police can search the trunk and if it happens to contain evidence that the guest is a criminal after all, albeit innocent of any involvement in the criminal activities of his host, he is out of luck. We thus agree with United States v. Giwa, 831 F.2d 538, 543-45 (5th Cir.1987), which rejected an automatic defense for “casual visitors.”

The ease is no different if the trunk is the trunk of an automobile that an overnight guest has parked in his host’s garage. United States v. Motz, 936 F.2d 1021, 1025 (9th Cir.1991). It is relatively uncommon, however, for someone to park his car in a garage attached to or associated with a private residence, as opposed to a public garage or a garage in an apartment house. The rule of Percival does not extend to these other garages. Having a warrant to search a person’s apartment “and garage” does not entitle the police to search every car in the garage of the apartment house. United States v. Stanley, 597 F.2d 866, 870 (4th Cir.1979); see 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.10(c), pp. 668-69 (3d ed. 1996).

We turn to the sentencing issues, which also mainly involve Gregory Fort. A very curious issue is the date on which he was sentenced. Amendments to the federal sentencing guidelines that went into effect on November 1, 1993, lowered the base offense level for offenses involving crack; and had the amendments applied to defendants Tid-well and Gregory Fort their sentences might have been shorter. The judge pronounced sentence on them on October 27 (Fort) and 28 (Tidwell), and he based these sentences on the guidelines in effect on those days. But the judgments were not entered by the clerk of the district court on the docket sheet until November 4. Fort argues that the sentence was not imposed until the judgment was entered, and Tidwell that his lawyer was guilty of ineffective assistance in failing to ask the judge to delay the sentencing beyond November 1. Tidwell’s argument gives us little pause, as he does not suggest any ground that his lawyer might have had for asking the judge for a delay. If the shoe were on the other foot, and delay in sentencing would result in a higher sentence, we do not think that Tidwell would acknowledge the right of the prosecutor to move for a delay in sentencing without any better ground than wanting to have a different sentence. Criminal defense lawyers, like other lawyers, do not have an ethical duty to make groundless arguments; indeed, they have an ethical duty not to make such arguments. United States v. Gomez, 24 F.3d 924, 926 (7th Cir.1994); United States v. Sanchez-Estrada, 62 F.3d 981, 986 n. 11 (7th Cir.1995); United States v. Rivera, 68 F.3d 5, 8 (1st Cir.1995). The refusal to act unethically by making a groundless argument can never be a ground for arguing ineffective assistance of counsel.

As for Fort’s argument, the statute requires the judge to apply (to the extent the ex post facto clause permits) the sentencing guidelines “that are in effect on the date the defendant is sentenced.” 18 U.S.C. § 3553(a)(4)(A). The term “sentencing” in legal as in ordinary language refers to the pronouncing of sentence by the judge in open court, rather than to the subsequent recording of the sentence on a docket sheet. This understanding is confirmed by the federal sentencing statute, which requires the district court, “at the time of sentencing,” to state in open court the reasons for “its imposition of the particular sentence.” 18 U.S.C. § 3553(c). If Fort and Tidwell were right, the required statement of reasons would come before, rather than at the time of, sentencing, contrary to the statute. More important, the judge, when pronouncing sentence shortly before the effective date of a change in the guidelines, would not be certain which guidelines to proceed under because he would not know exactly when the clerk would enter the judgment on the docket sheet.

It is true that for purposes of appeals and corrections of sentence the critical date is the date of the entry of judgment rather than the[*545] date on which the sentence is pronounced. United States v. Clay, 37 F.3d 338, 340 (7th Cir.1994). Fed. R.App. P. 4(b) is explicit that the time for taking a criminal appeal runs from the date of “the entry either of the judgment or order appealed from.” And while Rule 35(e) (correction of sentence by sentencing judge) is inexplicit (“7 days after the imposition of sentence”), the court in Clay thought that the practice under Rule 35(c) should be conformed to the practice in taking an appeal because correcting a sentence serves a similar purpose, that of revising the judgment. A Rule 35(e) correction tolls the time for appealing. United States v. Turner, 998 F.2d 534, 536 (7th Cir.1993); United States v. Morillo, 8 F.3d 864, 868-69 (1st Cir.1993). It would be pretty confusing if the time for making the correction ran from the time of the pronouncing of sentence even though the time for appealing did not start to run until the entry of the judgment. No such confusion results from interpreting “the date the defendant is sentenced” in 18 U.S.C. § 3553(a)(4)(A) as the date on which sentence is pronounced in open court.

The district judge found that at least half the cocaine sold by the defendants in the final period of the conspiracy was crack. This finding had a big impact on the defendants’ sentences, because the sale of crack is punished much more heavily than the sale of powder cocaine. U.S.S.G. § 2Dl.l(c). The judge based his finding on testimony by a turncoat member of the core group that during the relevant period the “majority” of the cocaine sold by the conspiracy was in the form of crack. The testimony was believable and believed, and was corroborated by a variety of other evidence. At argument Gregory Fort’s lawyer conceded that the judge’s finding was supported by a preponderance of the evidence but urged us to lay down a rule that quantity findings that have a large impact on sentence must be supported by clear and convincing evidence. It is doubtful that the rule would make a difference in this case, because the judge pronounced himself confident that during the relevant period the conspiracy sold at least half its cocaine in crack form. But in any event a majority of the full court declined recently to examine the issue, United States v. Rodriguez, 73 F.3d 161 (7th Cir.1996), and it would be inappropriate for this panel to attempt to reopen it.

The last issue we need discuss is whether Gregory Fort’s sentence was rightly enhanced on the ground that he was a “leader” of the conspiracy. A leader of a criminal activity or enterprise that has five or more participants receives a four-level bump-up in sentence. U.S.S.G. § 3Bl.l(a). Fort argues that as a latecomer to the “Mob” (the core group of the conspiracy, remember), he could not be regarded as the leader, and also that he was not shown to have supervised at least five members of the peripheral group of conspirators that consisted of workers, runners, crack cookers, and security guards.

The guideline does not exclude the concept of collective leadership. The Rockford drug ring was managed by a seven-member “board of directors” that included Gregory Fort. The commitment of this board to majority vote gave each member, including Fort, a position of authority tantamount to leadership, as is further shown by the fact that the members split the profits of the conspiracy equally among themselves. The fact that fewer than five members of the peripheral group actually reported to Fort is immaterial. United States v. McGuire, 957 F.2d 310, 316-17 (7th Cir.1992). Individual employees of a corporation generally do not report to individual members of the board of directors; nevertheless the board is the corporation’s collective leadership.

The judge had an alternative ground for sticking Fort with the four-level enhancement for leadership. Section 3Bl.l(a) applies to defendants who are leaders of a criminal enterprise or activity that has five or more participants or is “otherwise extensive.” The judge thought that even if Fort did not “lead” five or more participants in the conspiracy, the conspiracy had so many more than five participants (19, remember) that it must have been otherwise extensive. The word “otherwise” suggests, however, as do the cases, United States v. Randy, 81 F.3d 65, 68-69 (7th Cir.1996); United States v. Briscoe, supra, 65 F.3d at 590 and n. 17, that the reference to “extensive” activity is to an[*546] activity that is extensive even though it has fewer than five participants, or at least fewer than five criminally liable participants. So a Fagan-type gang, which employs children too young to be charged with crime, or a small gang that operates through persons who are mere unknowing instruments, or perhaps a gang that while small uses modern computer and communications technology to extend its tentacles worldwide, could be thought “otherwise extensive.” This is a matter that the Sentencing Commission would be well advised to clarify, but it does not affect the sentences of these defendants, since it was merely an alternative ground.

The other issues require no discussion. By filing separate briefs, even though there is no conflict among the defendants’ positions, and by briefing every conceivable issue plus the kitchen sink, the defendants’ lawyers both enabled the government to play divide-and-conquer in its brief and argument (both superb) and deprived their appeals of focus. Nevertheless we have tried conscientiously to examine all the issues and to discuss all those — few—that have at least arguable merit. We find no error, with the possible but irrelevant exception of the district judge’s interpretation of “otherwise extensive.”

Affirmed.