U. S. v. HILLS, et al., LEXIS 17186 (7th Cir. 2010)
After a joint trial, a jury found the first and second defendants guilty of conspiracy to impede the authority of the IRS in violation of 18 U.S.C. Section 371 and the second and third defendants guilty of filing false tax returns in violation of 26 U.S.C. Section 7206(1). Defendant appealed various aspects of their trial in the United States District Court for the Central District of Illinois and sentencing.
On a Speedy Trial Act, 18 U.S.C. Section 3161 claim the district court's automatic exclusion of 16 days was proper because the government did not need to prove a causal relationship between the filing of a pretrial motion for a bill of particulars and the delay in bringing defendants to trial. The argument that time excluded due to the first defendant's counsel filing a motion of continuance should not be counted because the first defendant had a personal right to a speedy trial that his counsel could not override was rejected. The court articulated adequate reasons for its decision to grant the continuance, including the complexity of the case and the necessity to allow counsel adequate preparation.
Defendants not standing trial until two years after their indictments were handed down created a presumption of prejudice to their Sixth Amendment right to a speedy trial. However, as defendants were responsible for most of the delay in their trial date, and as they failed to show that they suffered any prejudice, they also failed to show a constitutional speedy trial violation. It was error for the prosecution to comment on invoking Fifth Amendment rights.
The Court found that in order to ensure the viability of the Fifth Amendment by . protecting a defendant's right to be free from compelled self-incrimination, courts must not allow the prosecution to cast a defendant's invocation of the Fifth Amendment in a negative light, as this serves only to penalize her for exercising that right In determining whether an error affected a defendant's substantial rights, an appellate court applies the same factors used in a harmless error analysis; however, the burden shifts to the defendant. The court therefore looks to (1) the intensity and frequency of the references, (2) which party elected to pursue the line of questioning, (3) the use to which the prosecution put the silence, (4) the trial judge's opportunity to grant a motion for a mistrial or to give a curative instruction, and (5) the quantum of other evidence indicative of guilt.
The first and third defendants' convictions were affirmed. The second defendant's conviction was vacated and the case was remanded for further proceedings.
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