01-3784 Pannell v. McBride

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“Counterman and Cassidy might have aided Pannell’s defense. He wanted both to testify that they observed Elofson break the security seal during the October 14 search, testimony that would have corroborated his statement that he never opened the television and was unaware of its contents. Indiana counters that there is no indication from the record that either officer had personal knowledge-a patently frivolous assertion given that both were present at the search. And we do not know from this record when the security seal was placed on the television, if Pannell was authorized to have another inmate’s television in his cell, whether the security seal can be broken and reapplied, or if possession of a deadly weapon is a strict liability offense. Consequently, we cannot conclude that testimony from Counterman and Cassidy would have been irrelevant because it might have buttressed a potentially valid defense that he was unaware of the television’s contents.”

Vacated and remanded.

Appeal from the United States District Court for the Northern District of Indiana, Sharp, J., Per Curiam.