In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3223

JOSE J. LOERA, JR.,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

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.

ARGUED JANUARY 15, 2013—DECIDED MAY 7, 2013

Before POSNER, WOOD, and TINDER, Circuit Judges.

POSNER, 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 response to a motion to suppress, the judge had forbidden the government to offer evidence of what the petitioner 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 continuances had violated the Speedy Trial Act, 18 U.S.C. §§ 3161

et seq. Loera was reindicted and again sought to suppress 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 suppress 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 proceeding 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 & Procedure § 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 questioning 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 evidence 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 November 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 permissible 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 conducted 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 postarrest 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 testimony 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 statements 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 familiarity 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 proceeding 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, conspiracy, aiding and abetting, malice aforethought, recklessness, 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 condition 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 unappealable, 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 difference 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 statements 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 naturally 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 answering 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 mentioned 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 proceeding” 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 statements 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 awaiting 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 fourfactor 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 likelihood 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 defendant’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 evidence 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 continuances (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 rendered 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 prejudice 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 constitutional 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

AFFIRMED.

5-7-13