02-2044 Ducato v. U.S.

By: dmc-admin//December 23, 2002//

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“The district judge who denied the section 2255 motion with the relatives’ affidavits before her was the same judge who had found that the defendant had possessed a gun during the commission of the offense, a finding that implied that the defendant knew the gun was in the glove compartment, since unknowing possession would not have justified an increase in punishment. United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir. 2001); United States v. Myers, 150 F.3d 459, 465 (5th Cir. 1998). The affidavits didn’t cause her to change her mind and so it is extremely unlikely that live testimony tracking the affidavits would have done so. Kavanagh v. Berge, 73 F.3d 733, 737 (7th Cir. 1996); In re Grand Jury Matter, 906 F.2d 78, 85-86 (3d Cir. 1990). The failure to present the evidence at the sentencing hearing was therefore not prejudicial.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Manning, J., Posner, J.

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