United States v. Carl Leibowitz (1988)

However, where an indictment alleges that an offense occurred “on or about” a certain date, “the defendant is deemed to be on notice that the charge is not limited to a specific date” and “cannot make the requisite showing of prejudice based simply on the fact that the government has failed to prove a specific date.” Id. at 391 (quoting United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.1988)).

However, where an indictment alleges that an offense occurred “on or about” a certain date, “the defendant is deemed to be on notice that the charge is not limited to a specific date” and “cannot make the requisite showing of prejudice based simply on the fact that the government has failed to prove a specific date.” Id. at 391 (quoting United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988)).

Where, as here, the date is not an essential or material element of the charged offense, “it is generally sufficient to prove that the offense was committed on any day before the indictment and within the statute of limitations.” United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.1988).

Further, where the charge is worded so broadly as to state “ ‘on or about’ a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date.” United States v. Folks, 236 F.3d 384, 391 (7th Cir.2001) (citing United States v. Lei-bowitz, 857 F.2d 373, 379 (7th Cir.1988)).

Further, where the charge is worded so broadly as to state “ ‘on or about’ a certain date, the defen- dant is deemed to be on notice that the charge is not limited to a specific date.” United States v. Folks, 236 F.3d 384, 391 (7th Cir. 2001) (citing United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988)).

United States v. Leibowitz, 857 F.2d 373, 378-79 (7th Cir.1988).

“Where the indictment alleges that an offense allegedly occurred ‘on or about’ a certain date, the de- fendant is deemed to be on notice that the charge is not lim- ited to a specific date.” United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988).

“Where the indictment alleges that an offense allegedly occurred ‘on or about’ a certain date, the de- fendant is deemed to be on notice that the charge is not lim- ited to a specific date.” United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988).

Id. at 774-75 , citing United States v. Hinton, 222 F.3d 664, 672-73 (9th Cir. 2000) (while a few weeks of variance is allowable, seven months of variance “between the facts proved and the dates alleged in the indictment” is “prejudicial”); United States v. Casterline, 103 F.3d 76, 77-78 (9th Cir. 1996) (firearm possession seven months earlier insufficient to establish felon-in-possession conviction reasonably near indictment date); cf. United States v. Blanchard, 542 F.3d 1…

Where, as here, a specific date does not form a crucial component of the offense, a variance in the dates charged in the indictment and those proved at trial will generally be harmless if the government “prove[s] that the offense was committed on any day before the indictment and within the statute of limitations.” United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.1988).

See id.; Folks, 236 F.3d at 391 , United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.1988).

See United States v. Ross, 412 F.3d 771, 774 (7th Cir.2005); United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.1988) (“[W]hen the indictment uses the ‘on or about’ designation, proof of a date reasonably near to the specified date is sufficient.”).

United States v. Spaeni, 60 F.3d 313, 315 (7th Cir.1995); United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.1988).

United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir. 1988).

United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.1988).

Although dicta can be quoted to that effect, e.g., Ledbetter v. United States, 170 U.S. 606, 612-13 , 18 S.Ct. 774 , 42 L.Ed. 1162 (1898); United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.1988); United States v. Krepper, 159 F.2d 958, 964 (3rd Cir.1946), we’ve found no cases that hold that a huge discrepancy, like 4 years here, is permissible.

Although dicta can be quoted to that effect, e.g., Ledbetter v. United States, 170 U.S. 606, 612-13 (1898); United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir. 1988); United States v. Krepper, 159 F.2d 958, 964 (3rd Cir. 1946), we’ve found no cases that hold that a huge dis- crepancy, like 4 years here, is permissible.

"Unless the particular date is an important element of the charged offense,” "a formal change to the date specified in the indictment (or proof or instructions that the charged crime was committed on a different date than the indictment alleges) will not impermissibly amend the indictment — so long, in general, as the evidence shows that the offense was the one charged and that it was committed on a date before the indictment and within the statute of limitations.” Leichtnam…

Cf. United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.1988) (holding that “[u]nless the particular date is an element of the alleged offense, it is generally sufficient to prove that the offense was committed on any day before the indictment and within the statute of limitations.”) We thus concur with counsel that an appeal challenging any of these rulings would be frivolous.

United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988) (citations omitted).

United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.1988) (citations omitted).

United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988) (citations omitted).

Therefore, “[ujnless the particular date is an element of the alleged offense, it is generally sufficient to prove that the offense was committed on any day before the indictment and within the statute of limitations.” United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.1988), cert. denied, 489 U.S. 1088 , 109 S.Ct. 1552 , 103 L.Ed.2d 855 (1989).

The only issue Dunkel discusses that was raised in his post-sentence motion and that has been preserved for appeal is his claim that he is entitled to a new trial based upon newly discovered evidence of judicial bias. 1 3 To obtain a new trial based on the ground of newly discovered evidence, a defendant must show that the evidence in question: 4 1) came to the defendant's knowledge only after trial; 2) could not have been discovered sooner through the exercise of due dilige…

United States v. Leibowitz, 857 F.2d 373, 380 (7th Cir.1988), cert. denied, 489 U.S. 1088 (1989). 29 Under this standard the record contains ample evidence against both appellants.

United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.1988); United States v. Alexander, 850 F.2d 1500, 1504 (11th Cir.1988), vacated and remanded on other grounds, 492 U.S. 915 , 109 S.Ct. 3236 , 106 L.Ed.2d 584 reinstated, 888 F.2d 777 (11th Cir.1989), ce rt. denied, — U.S. —, 110 S.Ct. 2623 , 110 L.Ed.2d 643 (1990).

See also United States v. Reed, 887 F.2d 1398, 1403 (11th Cir.1989) (use of “on or about” puts defendant on notice that charge not limited to date in indictment; proof of date reasonably near sufficient), cert. denied, — U.S. -, 110 S.Ct. 1136 , 107 L.Ed.2d 1041 (1990); United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.1988) (same), cert. denied, 489 U.S. 1088 , 109 S.Ct. 1552 , 103 L.Ed.2d 855 (1989); United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir.) (same), ce…

United States v. Leibowitz, 857 F.2d 373, 380 (7th Cir.1988), cert. denied, 489 U.S. 1088 , 109 S.Ct. 1552 , 103 L.Ed.2d 855 (1989) (quoting United States v. Goodwin, 770 F.2d 631, 639 (7th Cir.1985), cert. denied, 474 U.S. 1084 , 106 S.Ct. 858 , 88 L.Ed.2d 897 (1986)).

“Unless the particular date is an element of the alleged offense, it is generally sufficient to prove that the offense was committed on any day before the indictment and within the statute of limitations.” United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.1988).

Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979); see also United States v. Field, 875 F.2d 130, 137 (7th Cir.1989); United States v. Muskovsky, 863 F.2d 1319, 1322 (7th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1345 , 103 *1345 L.Ed.2d 813 (1989); United States v. Spivey, 859 F.2d 461, 463 (7th Cir.1988); United States v. Leibowitz, 857 F.2d 373, 380 (7th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1552 , 103 L.Ed.2d 855 (1989).

Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979); see also United States v. Muskovsky, 863 F.2d 1319, 1322 (7th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1345 , 103 L.Ed.2d 813 (1989); United States v. Spivey, 859 F.2d 461, 463 (7th Cir.1988); United States v. Leibowitz, 857 F.2d 373, 380 (7th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1552 , 103 L.Ed.2d 855 (1989).

Cases that hold that “when the indictment uses the ‘on or about’ designation, proof of a date reasonably near to the specified date is sufficient,” United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.1988), are legion, and “on or about” is treated the same.

When presented with a claim of insufficient evidence we will “affirm the verdict if the evidence, when viewed in the light most favorable to the government, establishes that any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” United States v. Leibowitz, 857 F.2d 373, 380 (7th Cir.1988); United States v. D’Antonio, 801 F.2d 979, 981 (7th Cir.1986).

See United States v. Champion, 813 F.2d 1154, 1168 (11th Cir. 1987); United States v. Grapp, 653 F.2d 189, 195 (5th Cir. 1981).” United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988), cert. denied, 489 U.S. 1088 , 109 S. Ct. 1552 , 103 L.

Finite Date "Unless the particular date is an element of the alleged offense, it is generally sufficient to prove that the offense was committed on any day before the indictment and within the statute of limitations." United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir. 1988).

United States v. Mata, 491 F.3d 237, 243 (5th Cir.2007) (quoting United States v. Valdez, 453 F.3d 252, 260 (5th Cir.2006)); see also Real v. Shannon, 600 F.3d 302, 308 (3d Cir.2010); United States v. Benson, 591 F.3d 491, 497 (6th Cir.2010); United States v. Hinton, 222 F.3d 664, 672-73 (9th Cir.2000); United States v. Castillo, 140 F.3d 874, 885 (10th Cir.1998); United States v. Reed, 887 F.2d 1398, 1403 (11th Cir.1989); United States v. Leibowitz, 857 F.2d 373, 379 (7th C…

Further, other courts have held, “ ‘Where the [information] alleges that an offense allegedly occurred “on or about” a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date.’ ” State v. Bergin, 214 Conn. 657 , 574 A.2d 164, 173 (1990) (alteration in original) (quoting United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988)); see also United States v. Mitov, 460 F.3d 901, 907 (7th Cir. 2006). ¶[39 While Mr. Larson stress…

Further, other courts have held, “ ‘Where the [information] alleges that an offense allegedly occurred “on or about” a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date.’ ” State v. Bergin, 214 Conn. 657 , 574 A.2d 164, 173 (1990) (alteration in original) (quoting United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988)); see also United States v. Mitov, 460 F.3d 901, 907 (7th Cir. 2006).

Further, other courts have held, “ ‘Where the [information] alleges that an offense allegedly occurred “on or about” a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date.’ ” State v. Bergin, 214 Conn. 657 , 574 A.2d 164, 173 (1990) (alteration in original) (quoting United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988)); see also United States v. Mitov, 460 F.3d 901, 907 (7th Cir. 2006).

Because “[t]his call also must have appeared in [White’s] own phone records[,]” United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.1988), White has not met his burden on this requirement either. 2.

United States v. Mata, 491 F.3d 237, 243 (5th Cir. 2007) (quoting United States v. Valdez, 453 F.3d 252, 260 (5th Cir. 2006)); see also Real v. Shannon, 600 F.3d 302, 308 (3d Cir. 2010); United States v. Benson, 591 F.3d 491, 497 (6th Cir. 2010); United States v. Hinton, 222 F.3d 664, 672-73 (9th Cir. 2000); United States v. Castillo, 140 F.3d 874, 885 (10th Cir. 1998); United States v. Reed, 887 F.2d 1398, 1403 (11th Cir. 1989); United States v. Leibowitz, 857 F.2d 373, 379…

On this issue, the government maintains that “ ‘newly discovered evidence’ is evidence that ‘came to the defendant’s knowledge only after trial.’ ” Id. (quoting United States v. Leibowitz, 857 F.2d 373, 380 (7th Cir.1988)).

United States v. Leibowitz, 857 F.2d 373, 380 (7th Cir.1988), cert. denied, 489 U.S. 1088 , 109 S.Ct. 1552 , 108 L.Ed.2d 855 (1989); United States v. Poppers, 635 F.Supp. 1034, 1038 (N.D.Ill.1986).

The information stated that B.B.’s rape occurred “on or about December 1996.” “Where ‘on or about’ language is used, the government is not required to prove the exact dates, if a date reasonably near is established.” United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir.1987); accord United States v. Benson, 591 F.3d 491, 497 (6th Cir.2010); United States v. Mata, 491 F.3d 237, 243 (5th Cir.2007); United States v. Reed, 887 F.2d 1398, 1403 (11th Cir.1989); United States v.…

See United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988); see also United States v. Young, 862 F.2d 815, 818-19 (10th Cir. 1989).

See United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.1988) (where the indictment alleged that an offense took place “on or about” a certain date, the defendant is deemed to be on notice, for purpose of alibi defense, that the charge is not limited to a specific date).

See United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.1988) (where the indictment alleged that an offense took place "on or about" a certain date, the defendant is deemed to be on notice, for purpose of alibi defense, that the charge is not limited to a specific date). 99 Moreover, it is far from clear that there was any prejudice.

See United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.1988), cert. denied, 489 U.S. 1088 , 109 S.Ct. 1552 , 103 L.Ed.2d 855 (1989).

See United States v. Leibowitz, 857 F.2d 373, 375-76 (7th Cir.1988). .

See United States v. Leibowitz, 857 F.2d 373, 375-76 (7th Cir.1988). [2] It is Bureau of Prisons policy that inmates who testify against one another are designated as "separatees" and are not placed in the same institution.