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United States v. Smith

United States Court of Appeals, Seventh Circuit

November 18, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
KERRY L. SMITH, Defendant-Appellant

Appeal fro the United States District Court for the Southern District of Illinois. No. 4:07-cr-40038-jpg-1 -- J. Phil Gilbert, Judge.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Amanda A. Robertson, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Benton, IL.

For KERRY L. SMITH, Defendant - Appellant: Heather L. Winslow, Attorney, Chicago, IL.

Before POSNER, RIPPLE and KANNE, Circuit Judges.

OPINION

Page 1046

On Motion to Recall Opinion of the Court

Per Curiam.

This matter is before us on the motion of newly appointed counsel for appellant Kerry Smith, asking that we recall the opinion in which we decided the merits of this appeal. We deny the motion but give counsel thirty days in which to file a petition for rehearing if she deems it advisable.

A.

On October 1, 2014, we issued an order granting Attorney Beau Brindley's motion to withdraw as appointed counsel for Mr. Smith. Mr. Brindley explained that he was the subject of a federal criminal investigation and wanted to avoid any potential conflict of interest in this matter. Mr. Brindley further explained that there was no conflict of interest or potential conflict of interest during his representation of Mr. Smith because the appeal was fully briefed and argued prior to July 2014, when the Government initially notified him that he was a target of a federal investigation. (The district court had made the same findings when we remanded the matter to permit that court to look into the possibility of a conflict of interest caused by Mr. Brindley's situation.) Mr. Brindley concluded, nevertheless, that it was best for him to withdraw " to prevent any conflict of interest issue from having an impact." App. R.47 at 2.

On October 8, 2014, we appointed Heather Winslow to represent Mr. Smith. See United States v. Shaaban, 514 F.3d 697, 698-99 (7th Cir. 2008) (Ripple, J., in chambers) (appointing counsel to consider filing petition for rehearing). Ms. Winslow now asks that we recall our opinion, issued on October 24, 2014, that decided this appeal. She seeks additional time to review the record on appeal and to determine whether there are meritorious issues that Mr. Brindley did not raise. If she finds such meritorious issues, she would seek leave to supplement the appellate briefs. Ms. Winslow suggests that, during the remand proceedings, the district court failed to address the issue of whether Mr. Brindley intentionally failed to pursue meritorious issues in the appeal because he knew that he was under criminal investigation. She notes that the conduct charged in the indictment dates back to August 2009, and she represents that Mr. Smith has related to her that he told Mr. Brindley of two potentially meritorious issues that he wished to raise on appeal but which were not addressed in the brief filed by Mr. Brindley. According to the motion before us, " Mr. Smith believes that Mr. Brindley may have declined to raise these issues in order to curry favor with the government or the Court." App. R.52 at 3.

B.

We cannot accept the suggestion that the district court failed to address the issue of whether Mr. Brindley failed to pursue issues because he knew there was a criminal investigation pending. The court explicitly found that no potential conflict existed until July of 2014. This finding is compatible with Mr. Brindley's representation in his motion to withdraw that he was unaware of the criminal investigation until on or about July 15, 2014. This information is, moreover, consistent with the Government's filings dated July 17, 2014, in other appeals ...


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