Founder
A recent opinion from the U.S. Court of Appeals for the Seventh Circuit illustrates the perils of the “argument by incorporation” strategy. In United States v. Scott, Case No. 24-1903, the Defendant was convicted following a bench trial of unlawful possession of a firearm by a felon, along with possession with intent to distribute narcotics. The Defendant appealed the denial of his motion to suppress evidence and challenged the sufficiency of the evidence. He also attempted to argue the possession of a firearm statute, 18 U.S.C. § 922(g)(1), was unconstitutional. The Seventh Circuit Court of Appeals affirmed on all issues. But of note was its take on the constitutional challenge. Regarding the attempt to attack the § 922(g)(1) conviction, the Defendant merely adopted the arguments he made in the district court on the issue. The Court of Appeals remarked, “a litigant’s attempt to incorporate by reference arguments on issues made to the district court is unacceptable and cannot serve as a valid presentation of the argument on appeal.” The Court determined this issue had thus been waived. While incorporating arguments made by co-Defendants in an appeal is usually acceptable, doing so with arguments made in another court, even in the same case, is a strategy doomed to fail.