Jose J. Loera, Jr. v. United States , 714 F.3d 1025 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3223
JOSE J. L OERA, JR.,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:10-cv-00453-PPS—Philip P. Simon, Chief Judge.
A RGUED JANUARY 15, 2013—D ECIDED M AY 7, 2013
Before P OSNER, W OOD , and T INDER, Circuit Judges.
P OSNER, Circuit Judge. The petitioner, Jose Loera, asks
us to set aside his conviction on the ground that his trial
lawyer had been ineffective. See 28 U.S.C. § 2255. Loera
had been indicted back in 2005 on drug charges. In re-
sponse to a motion to suppress, the judge had forbid-
den the government to offer evidence of what the peti-
tioner had told DEA agents after he allegedly asked for
a lawyer. After repeated continuances the judge dis-
2 No. 11-3223
missed the indictment (though without prejudice), on
the ground that the delay resulting from the continu-
ances had violated the Speedy Trial Act, 18 U.S.C. §§ 3161et seq. Loera was reindicted and again sought to sup-
press his statements to the agents. But this time the
judge—the same judge—denied the motion on the
ground that actually Loera had not told the DEA agents
he wanted a lawyer. So the statements were admitted
into evidence. The jury convicted Loera and the judge
sentenced him to 240 months in prison. We affirmed
the conviction and sentence. 565 F.3d 406 (7th Cir. 2009).
Loera faults his lawyer first for having failed to argue
to the district judge that the denial of the motion to sup-
press in the first round of the criminal proceeding
should be binding in the second round—the trial—by
virtue of the doctrine of collateral estoppel; and second
for having failed to argue in that first round that the
delay in the proceeding had violated not only the
Speedy Trial Act but also the speedy trial clause of the
Sixth Amendment; if so, the dismissal of that pro-
ceeding should have been with prejudice, Strunk v.
United States, 412 U.S. 434, 439-40 (1973); 3B Charles
Alan Wright & Peter J. Henning, Federal Practice & Proce-
dure § 803, p. 358 (4th ed. 2013), in which event Loera
could not be tried subsequently for the same offense.
Loera had been a passenger in a car that police
officers stopped because of traffic violations. The driver
consented to a search of the car and the police
searched and found cocaine in a hidden compartment.
Arrested, and questioned by DEA agents in an interview
No. 11-3223 3
room at the county jail, Loera told them he knew
nothing about the cocaine; he had simply been asked to
deliver the car to someone. He also said that he’d been
visiting family in Atlanta and that the driver of the car
had driven down and picked him up there. When
the agents told him he would remain in jail and would
probably be charged with cocaine trafficking in violation
of federal law, he said, according to one of the agents,
that he wanted “to help himself out if he can” by making
a controlled delivery of the car to assist the agents
in apprehending the intended recipient of the drugs.
The agent added: “he just continued to ask what can
I do to help myself out of the situation.”
Loera was indicted. His lawyer moved to suppress
the statements that he had made to the agents. They had
read him his Miranda rights and he had refused to sign
a waiver of them. The motion alleged that he had asked
for a lawyer but that the agents had not stopped ques-
tioning him. When the government told the judge, in
response to the motion to suppress, that it “was not
concerned with the statements,” the judge without
further ado suppressed “any statements [Loera] made
after his request for counsel.” But he did not suppress
all of Loera’s post-arrest statements, as the motion had
requested. Nor did he rule that Loera had actually
asked for a lawyer—in light of the government’s lack
of interest in the statements he had no need to decide
whether Loera had a legal right to their suppression.
It’s like when a party moves in limine to exclude some
piece of evidence and the other party replies that it
4 No. 11-3223
has no objection and so the judge grants the motion
without bothering to resolve the factual disputes that
would have arisen had the party that offered the evi-
dence objected.
Months passed without the case going to trial, owing
to repeated requests for continuances—which the judge
granted—made by the government, by Loera’s lawyer,
and by the lawyer for Loera’s co-defendant. In Novem-
ber 2006—19 months after the indictment had been
issued—Loera moved to dismiss it on the ground of
excessive delay, citing constitutional and statutory
grounds for dismissal. But in support of the motion his
lawyer argued only the statutory ground.
The following month the judge granted the motion
and dismissed the indictment without prejudice, a permis-
sible sanction for violation of the Speedy Trial Act. 18
U.S.C. § 3162(a)(2); Zedner v. United States, 547 U.S. 489,
499 (2006); United States v. Sykes, 614 F.3d 303, 309-10
(7th Cir. 2010). Two months later Loera was reindicted.
The case went to trial two months after that.
In the resumed proceeding the lawyer again filed a
motion to suppress all the statements his client had
made to the DEA agents after his arrest. The judge con-
ducted an evidentiary hearing. A DEA agent who had
questioned Loera testified that Loera had not asked for
a lawyer or sought to stop the questioning. Loera
testified to the contrary. The judge decided that the
agent was telling the truth and so ruled that Loera
had never asked for a lawyer and so the statements
should not be suppressed. The judge thus ruled on the
No. 11-3223 5
merits of the motion; for Loera’s lawyer had failed to
argue that the motion to suppress should be granted
regardless of its merit, by force of the doctrine of
collateral estoppel.
It is doubtful that the refusal to suppress the post-
arrest statements to the DEA agents, if it was an error,
was a harmful one. On the one hand the other evidence
of Loera’s guilt was powerful. The jury heard testi-
mony from the informant who had linked Loera to
the drug ring and had told the agents where and when
he would be traveling. And during the traffic stop Loera
and the driver had made inconsistent statements about
the purpose of their trip and Loera had been unable to
tell the police where his relatives in Atlanta lived,
even approximately and even though he said he’d been
staying with them. And on the other hand the state-
ments he made to the DEA agents, rather than
amounting to a confession, were consistent with his
position at trial; for he had denied to the agents knowing
there was cocaine in the car. It’s true that his offer to
“help himself out” by making a controlled delivery
of the cocaine suggested, at the least, a suspicious fam-
iliarity with the drug scene. But since he didn’t testify
at the trial, his denial to the DEA agents that he’d
known there was cocaine in the car at least got before
the jury a denial of guilt by the defendant. And even if
he was mixed up in some way in the illegal
drug scene, that didn’t mean he was involved in drug
dealing when the car in which he was a passenger
was pulled over.
6 No. 11-3223
But we needn’t rely on the doctrine of harmless error
in concluding that the admission of the statements is not
a basis for reversing Loera’s conviction.
The doctrine of collateral estoppel, an offshoot of res
judicata, teaches that a judge’s ruling on an issue of law
or fact in one proceeding binds in a subsequent pro-
ceeding the party against whom the judge had ruled,
provided that the ruling could have been (or was, but
unsuccessfully) challenged on appeal, or if not that at
least it was solid, reliable, and final rather than “intended
to be tentative.” Lummus Co. v. Commonwealth Oil
Refinery Co., 297 F.2d 80, 89 (2d Cir. 1961). And provided
also that the ruling was necessary to the validity of the
final judgment in the case, as otherwise there would be
little incentive to challenge it on appeal, and that it had
been made only after the party later complaining about
it had had an opportunity for a full and fair hearing
(not necessarily oral, however). Taylor v. Sturgell, 553
U.S. 880, 892 (2008); Dexia Crédit Local v. Rogan, 629 F.3d
612, 628-29 (7th Cir. 2010); Harris Trust & Savings Bank
v. Ellis, 810 F.2d 700, 705 (7th Cir. 1987); Restatement
(Second) of Judgments § 27 (1982).
The government rightly acknowledges the doctrine’s
applicability to criminal cases. Ashe v. Swenson, 397 U.S.
436, 443 (1970); United States v. Oppenheimer, 242 U.S. 85,
87 (1916); United States v. Salerno, 108 F.3d 730, 741 (7th
Cir. 1997); United States v. Harvey, 900 F.2d 1253, 1257
(8th Cir. 1990). So applied, it operates much like the
rule against double jeopardy—and indeed has been held
to be a component of the constitutional protection
No. 11-3223 7
against double jeopardy. Dowling v. United States, 493
U.S. 342, 347 (1990); Ashe v. Swenson, supra, 397 U.S. at 445-
46. But it is also a common law principle: “res judicata
[including collateral estoppel] is very much a common
law subject.” 18 Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice & Procedure § 4403,
p. 35 (2d ed. 2002) (footnote omitted). Criminal law is
suffused with such principles. Think of attempt, conspir-
acy, aiding and abetting, malice aforethought, reckless-
ness, entrapment, self-defense, and duress—all being
common law principles (often renamed) adapted to
fleshing out terse criminal statutes. Cf. Dixon v. United
States, 548 U.S. 1, 13-14 (2006); Morissette v. United States,
342 U.S. 246, 250-52 (1952). And so collateral estoppel is
applicable in a criminal proceeding without reference to
the double jeopardy clause, though of course in a federal
prosecution the applicable version of collateral estoppel
is the federal. See Semtek Int’l, Inc. v. Lockheed Martin
Corp., 531 U.S. 497, 507 (2001); Note, “The Due Process
Roots of Criminal Collateral Estoppel,” 109 Harv. L. Rev.
1729, 1742 (1996).
The significance for this case of the distinction
between common law collateral estoppel and collateral
estoppel as a component of the double jeopardy clause
is that Loera can invoke the common law doctrine
even though the dismissal of the first indictment—the
order that he says precluded revisiting in the second
criminal proceeding the admissibility of his post-arrest
statements—occurred before jeopardy attached. Jeopardy
doesn’t attach until the jury is sworn or, in a bench
trial, evidence is introduced. But jeopardy is not a condi-
tion of collateral estoppel.
8 No. 11-3223
Still, there must be a final judgment (in some
sense—a critical qualification, as we’re about to see); and
it can be argued that the dismissal of the first indictment,
following the ruling suppressing Loera’s statements,
wasn’t really a final judgment. It was without prejudice,
so that the trial following his re-indictment was really
just the continuation of the aborted first proceeding. But
Judge Friendly had pointed out the paradoxical effects
of being picky about the finality of the judgment sought
to be used as collateral estoppel. See United States ex rel.
DiGiangiemo v. Regan, 528 F.2d 1262, 1265-66 (2d Cir. 1975).
Imagine successive criminal proceedings against the
same person involving different crimes but a common
issue dependent on the same evidence of guilt. In the
first proceeding the judge rules at trial that the evidence
should be suppressed, and as a result the defendant
is acquitted. Although the trial ruling would not be
appealable (nor of course the acquittal), assume that
the ruling is rock solid and therefore, though unap-
pealable, entitled to collateral estoppel effect. Now
suppose the same scenario but the judge makes the
ruling pretrial, and rather than appeal the ruling, as it
could, 18 U.S.C. § 3731, the government, doubtful in
light of the ruling that it can win a conviction without
the evidence that the judge has suppressed, withdraws
the charges it had lodged against the defendant and
later files a new indictment, hoping for a favorable
ruling on the defendant’s motion to suppress the
evidence in this second round of litigation. The dif-
ference in the stage of the proceeding at which the
judge ruled shouldn’t affect whether the issue can be
No. 11-3223 9
revisited in the second proceeding. For these purposes,
then, the dismissal of the first indictment should be
treated as if it were a final judgment and the evidentiary
ruling that the judge made in that first proceeding
should be given collateral estoppel effect.
Nevertheless the doctrine of collateral estoppel was not
applicable in this case, and so Loera’s lawyer can’t be
faulted for not having invoked it. Not every ruling has
collateral estoppel effect in a subsequent proceeding in
which the issue resolved by the ruling pops up again.
Considering the number of rulings that a judge is apt
to make in a case, whether civil or criminal, we worry
that to give every ruling collateral estoppel effect would
make the doctrine proliferate excessively. As in this
case, many trial rulings are made casually, with little
attention to the merits of the issue ruled on and in this
case probably no attention, since the nonmoving party
had not opposed the motion that precipitated the ruling.
The government had not opposed the motion not
because it conceded that the agents had elicited state-
ments from the defendant after he asked for a lawyer,
but rather, so far as appears, because it wasn’t (at the
time) interested in using the statements at trial. So natu-
rally the judge granted the motion. That was a judicial
action, but it was not the resolution of a dispute (namely
over whether Loera had asked for a lawyer before an-
swering the agents’ questions). See United States v. Bruce,
109 F.3d 323, 327 (7th Cir. 1997); Truck Ins. Exchange v.
Ashland Oil, Inc., 951 F.2d 787, 792-93 (7th Cir. 1992). And
finally the grant of the motion to suppress had played
10 No. 11-3223
no role in the dismissal of the first indictment. The
only ground for that dismissal had been violation of
the Speedy Trial Act, a ground to which the motion
was irrelevant.
Let collateral estoppel be applicable to a case such as
this and the government will have an enhanced incentive
to take an interlocutory appeal from pretrial evidentiary
rulings in criminal cases, as it is permitted to do, 18
U.S.C. § 3731, but rarely does. Interlocutory appeals are
a burden to appellate courts and delay the finality of
litigation; they are not to be encouraged.
For completeness we mention a doctrine related to
collateral estoppel though the parties have not men-
tioned it: the doctrine of law of the case. Even if a ruling
is not made after opportunity for a full and fair hearing,
it is not to be lightly ignored in a later stage of the
same proceeding, Christianson v. Colt Industries Operating
Corp., 486 U.S. 800, 817 (1988); Tice v. American Airlines,
373 F.3d 851, 853-54 (7th Cir. 2004)—and “same proceed-
ing” is the practical description of a proceeding and of
its resumption following a dismissal without prejudice
before the same judge and involving the identical issues
and evidence. The reason we gave earlier for treating
the interim dismissal as “final” for collateral estoppel
purposes—that the stage at which a ruling is made is
not decisive on whether to give the ruling collateral
estoppel effect—is not applicable to law of the case.
But still the judge has to have addressed an issue for
his resolution of it to be treated as the law of the case.
FMS, Inc. v. Volvo Construction Equipment North America,
Inc., 557 F.3d 758, 762-63 (7th Cir. 2009); Universal Guarantee
No. 11-3223 11
Life Ins. Co. v. Coughlin, 481 F.3d 458, 462 (7th Cir.
2007); Feesers, Inc. v. Michael Foods, Inc., 591 F.3d 191, 208
(3d Cir. 2010); 18B Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice & Procedure § 4478,
pp. 649-64 (3d ed. 2005). And, as we have said, the judge
in this case in granting the motion to suppress in the
first proceeding had not decided whether the state-
ments should have been suppressed.
So there was no procedural violation relating to the
statements, and we turn to the second issue, concerning
the failure of Loera’s lawyer to have argued that his
client’s constitutional right to a speedy trial had been
violated, in which event Loera could not have been tried.
Like much of the Bill of Rights, the speedy trial clause
is cryptic. All it says is that a criminal defendant has a
right to a speedy trial. The critical question is how
“speedy.” To give some form to the question courts
focus on four considerations. They are the length of the
delay between indictment and trial, the reason for it,
whether the defendant complained about it, and whether
he was “prejudiced” by it. Doggett v. United States, 505
U.S. 647, 651 (1992); United States v. Wanigasinghe, 545
F.3d 595, 597 (7th Cir. 2008). “Prejudice” in turn can be
a lesser chance of an acquittal, the indignity and
discomfort of being jailed for a long period of time await-
ing trial, or the psychological or financial consequences
of finding oneself stuck between indictment and trial in
a limbo of anxiety and uncertainty. The first of these
three prejudice subfactors is the most important, Barker v.
Wingo, 407 U.S. 514, 532-33 (1972); West v. Symdon, 689
12 No. 11-3223
F.3d 749, 752-53 (7th Cir. 2012), because it protects against
the conviction of the innocent. The other two factors
are really just aspects of the length of delay, and thus
underscore the primacy of that, the first, factor in the four-
factor test. But realism requires recognition that given
the government’s heavy burden of proof in criminal
cases, delay in bringing a case to trial often works in
the defendant’s favor: if both prosecution and defense
witnesses, or a fortiori only prosecution witnesses,
suffer from fading memories, delay will reduce the like-
lihood of a conviction.
As we noted recently in Teed v. Thomas & Betts
Power Solutions, L.L.C., No. 12-2440, 2013 WL 1197861, at *3
(7th Cir. Mar. 26, 2013), “judges tend to be partial to
multifactor tests, which they believe discipline judicial
decisionmaking, providing objectivity and predictability.
But this depends on whether the factors making up
the test are clear, whether they are valid, whether each
is weighted so that the test can be applied objectively even
if the factors don’t all line up on one side of the issue in
every case . . ., and whether the factors are exhaustive
or illustrative—if the latter, the test is open-ended,
hence indefinite.” A model multifactor test—one not
subject to the criticisms suggested in the Teed case—is
Judge Learned Hand’s famous three-factor test (the
“Hand Formula”) for negligence: B < PL. B is the burden
of taking a precaution that would have avoided the
accident that injured the plaintiff, P is the probability of
the accident if the precaution wasn’t taken, and L is
the expected loss to the victim if an accident occurred
No. 11-3223 13
because the precaution had not been taken. United States
v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
Alas, the four-factor test (six-factor, if the fourth is
replaced by its three subfactors) for a violation of the
constitutional right to a speedy trial lacks the crispness
of the Hand Formula. But a usable compressed version
is “the longer the delay and the more vigorous the de-
fendant’s demand to be tried speedily, the more reason
the state must show for the delay and the less harm (of
whatever type) to himself the defendant need show.”
United States ex rel. Mitchell v. Fairman, 750 F.2d 806, 808
(7th Cir. 1984). The 19-month delay after Loera’s first
indictment was long, but there is no indication that
it impaired his defense at trial—no suggestion that evi-
dence favorable to his defense had become stale. As
for psychological or other harm from incarceration, the
relevant period is not 19 but 9 months, because Loera
was out on bond for 10 of those months; and 9 months
is not an unusual period of pretrial detention.
He didn’t complain about the delay, moreover, and
there is no indication that he was impatient for a trial—not
all defendants are, as we noted, and especially when
they’re not in jail. Seven months of the 19-month delay
were attributable to requests for continuances by Loera’s
lawyer or his co-defendant’s lawyer. Loera’s lawyer
objected to none of the government’s requests for con-
tinuances (and to none of the co-defendant’s requests
for continuances either) until he moved to dismiss
the indictment. Loera doesn’t argue that his lawyer ren-
dered him ineffective assistance in asking for or failing
to object to continuances.
14 No. 11-3223
With no prejudice from delay within the meaning
given “prejudice” by Doggett and other cases (no preju-
dice in part because of the defendant’s acquiescence
in the delay, see Doggett v. United States, supra, 505 U.S.
at 658), and no indication of any invidious or otherwise
improper ground of or motive for protracted detention,
there is no justification for vacating a conviction on con-
stitutional speedy trial grounds, which has the effect of
acquittal. The Speedy Trial Act, it is true, imposes
much tighter (though still porous) deadlines. But it
offsets them by allowing the judge to impose for their
violation only the mild sanction of dismissal without
prejudice, thus permitting retrial. Given the availability
of the Act, there shouldn’t be many cases in which
federal defendants successfully invoke the speedy trial
clause. The constitutional clause plays a greater role
in state prosecutions, to which the Act is inapplicable.
Loera has not shown that his lawyer was ineffective.
The denial of his section 2255 motion is therefore
A FFIRMED.
5-7-13