Friday, February 19, 2010

Super-Sized Summary

Our AFPDs once again offer the following fare!

February 16, 17, 18 at the Circuit. Lots to cover, so only quick summaries.

Almost two dozen criminal (or criminally related) cases decided.

Sixteen direct appeals, four habeas, one forfeiture, and one civil v. the Michigan Parole Board.

James Rowland

Forfeiture case


Late filing of contest by respondent excused.



Habeas case. Felony murder.

Writ properly denied.

Bizarre facts involving the Super Bowl, arm wrestling, and a shotgun.


The rest of this section are unpublished cases unless noted.


Affirmed denial of modification under crack amendment.

Defendant wanted to re-litigate his original sentence.



Reversed sentence of 35 years where the mandatory minimum of 32 years seemed reasonable to the Court. Defendant recanted testimony regarding another person’s involvement. Not deemed to be sufficient by itself under 3553(a).



Sentence of 30 months affirmed for fraud convictions. Sad, odd facts.

Lower end of guidelines for ‘naive yet sophisticated’ scheme reasonable.



In the ‘so you thought you won’ category. Affirmed consecutive sentences of 12 months each for jury-tried convictions of misdemeanor tax evasion. (Defendant not guilty of the felony counts.) Also $25,000 fine.



Sentence of 300 months for meth conspiracy affirmed.

Issues: cross reference to murder guideline struck, but not references to the defendant’s involvement per informant. Also appellate waiver enforced in part.




Denial of Habeas for ineffective assistance of counsel for failure to file appeal.

Strong dissent.

MORAL: Get it in writing.



Affirmed 200 month sentence as procedurally and substantively reasonable.

Issue was calculation of base offense level (drug quantity).



Interesting case. Issue: Suppression of Stop and Frisk search.

Affirmed denial of motion over strong dissent by Judge Moore.

Case seems to say stopping in a no-stop zone and smell of marijuana means defendant may be armed and dangerous, justifying pat down that produced gun and drugs.

Also since the original state court charges were dismissed before agents spoke to defendant (he confessed), no 6th amendment right attached.

Dissent relies on Arizona v. Johnson, 129 S. Ct. 781 (2009).



Affirmed judgment and conviction of two k-porn counts.

Issues defendant raised: lack of jurisdiction on Count 2, limit on cross-examination, jury instruction on venue.

130-month sentence.




Affirmed denial of writ as to various sufficiency-of-the-evidence issues.



Affirmed sentence of 188 months on career-offender enhancement. It was a reasonable exercise of discretion. Defendant did raise a policy-based objection to CO guideline.



Affirmed denial of motion to suppress in warrant case on good-faith exception despite the issues with the warrant. It was a close question. ‘The good-faith exception applies where 'some modicum of evidence, however slight, . . . connect[s] the criminal activity described in the affidavit to the place to be searched.'' United States v. Laughton, 409 F.3d 744, 749 (6th Cir. 2005)




Very short opinion adopts district court’s decision.


Affirmed 60-month sentence on a guideline range of 87 to 108 months.

Issue was dangerous weapon enhancement.



Civil Action

Court reversed district court’s grant of SJ to plaintiffs regarding parole board's alleged ex post facto treatment of amendments to parole statute. Relates to Michigan’s parolable lifer law.




Career offender denied crack reduction. Looks to Perdue. And looked to United States v. Ra, No. 08-4527 (6th Cir. Dec. 17, 2009), which determined that the offense-level reductions in a case do not render a defendant’s career-offender designation inapplicable.


Another unpublished cases affirming denial of crack-amendment modifications where defendant was classified as career offender.



Affirmed 180-month sentence.

Issue: No right to appeal government’s failure to move for dnwd departure for substantial assistance absent improper constitutional factors.

Also ACCA not cruel and unusual.




No basis to appeal where defendant has been paroled. No injury to address.

Issue also related to the earlier mentioned civil case v. the Michigan parole board.

Tuesday, February 16, 2010

Quick Summary---Delivered Fresh for You

Here's our office's quick summary of Feb. 12 cases:



The Court affirmed the defendant’s conviction, finding that the government had proven ‘possession.’ But also finds that:

* The government’s proofs in this case were pretty spare. There was no evidence as to who owned the vehicle in which the gun was found. There was no evidence as to who the passenger was. There were no fingerprints on the gun. And there was no proof that Morrison owned the gun, although in these cases there almost never is.

* But the evidence is viewed "in the light most favorable to the prosecution." So viewed, the evidence established two critical facts. The first is that the gun was in plain view for Morrison as he drove the vehicle. The second is that the gun was "less than inches" away from Morrison, and "probably was rubbing his side." Taken together, these facts support an inference that Morrison knew the gun was there and that it was within his immediate control. This arrangement—with the gun next to Morrison’s hip, and his knowledge that it was there—was functionally equivalent to Morrison carrying it in a holster. Congress surely meant to proscribe this sort of thing when it enacted the felon-in-possession law.

* Court distinguishes this case from a ‘mere proximity’ case or a ‘constructive possession’ case.

* Court also found imperfect, but adequate, the jury instructions as to actual possession.




The Court affirmed the defendant’s convictions for running an illegal gambling business and sponsoring animal fighting. The defendant was allegedly running a cockfighting operation.

* The defendant only challenged the gambling conviction on appeal. The argument was that he gained no economic benefit from the gambling. The Court found that he derived an economic benefit from the fact that gambling was available and this fact encouraged people to attend the fights and therefore pay the entrance fee. Encouraging gambling benefited the defendant.

* The Court also looked at the fact that the defense did not renew the Motion for Acquittal after the close of the government's proofs. This failure significantly raised the standard of review on appeal.

* Defendant did not renew his Motion for Judgment of Acquittal, under Rule 29 of the Federal Rules of Criminal Procedure, at the close of all evidence, which is necessary to preserve the motion for appeal. Therefore, the Court had to review the district court’s denial of the motion for a "manifest miscarriage of justice."

* Such a miscarriage of justice exists only when the record is devoid of evidence pointing to guilt.


State Court Habeas Appeal



The Court granted the writ based upon a finding of an actual conflict where one attorney represented co-defendants in one murder trial. 

* The district court, having denied relief with respect to all of the petitioner’s claims, granted a certificate of appealability (COA) with respect to the petitioner’s claim that his "counsel labored under an impermissible conflict of interest" that manifested itself in counsel’s decision to pursue a joint defense and counsel’s failures in the pursuit of and advice regarding a possible guilty plea.

* The COA was expanded to include the claim that the defendant--petitioner had been denied effective assistance of counsel because his attorney failed to properly advise him concerning the Commonwealth’s five-year plea offer.

* After reviewing the record and considering the arguments presented on appeal, the Court concluded that counsel’s joint or dual representation resulted in an actual conflict that affected the petitioner’s representation in violation of his Sixth Amendment rights. The Court reversed the district court’s denial of the writ on this basis and remanded with instructions to conditionally grant the writ.

Friday, February 12, 2010

404(b) Whee!!!!!

OK, corny title, but good result here.

United States v. Jenkins, No. 08–5203 (6th Cir. Feb. 9, 2010) (published). Judges Griffin, Kethledge, and Carr (N.D. Ohio).

"Sometimes the prosecution should be careful what it asks for." The panel begins with a bang in this appeal of a drugs-and-guns trial. Issues revolved around constructive possession of the guns and drugs and admission of certain evidence, including evidence of a prior conviction. Jury found defendant guilty. He was sentenced to 180 months.

Possession-of-Guns Issue:

The defendant was present at the home on the day the drugs and guns were found. He had unlimited access to the residence: he lived there part time; he repeatedly restored electrical service there; his parents testified that he stored personal property there; and a gun, scales, and baggies of marijuana were found with his drivers license and other personal papers in the home’s only bedroom. This evidence permitted the jury to find that the defendant had the power and intention to exercise control over the guns and drugs in the house.

Evidentiary Issues:

1) The defendant argued that the district court erred in allowing a special agent to testify as an expert about drug-dealer customs without first obtaining specific information regarding his basis for knowledge. The agent, however, testified that he had surveilled drug transactions 300 to 400 times, participated in the execution of search warrants in 50 to 100 drug cases, and been involved in the arrests of several hundred suspected drug dealers. This testimony described an ample basis of knowledge for the opinions offered, so the Court rejected the defendant’s argument.

2) The defendant argued that the trial court should not have admitted 404(b) evidence of his 1998 drug conviction. That conviction was for possession with intent to distribute marijuana. It arose from an incident in front of the same residence as was involved in the instant offense. The government argued that the 1998 conviction was relevant to the defendant’s "knowledge and intent," both of which were elements of the drug offenses. The government argued that the defendant’s possession of marijuana with intent to distribute at the residence in 1998 tended to show that he knowingly possessed marijuana, crack cocaine, and powder cocaine at the same address with the same intent in 2006 (for the instant offense). The defense argued that the evidence merely showed propensity. The trial court admitted the evidence.

* But the issue of knowledge was not at issue in any meaningful sense. Whoever possessed the drugs—laying in plain view throughout the house—did not do so inadvertently. As a practical matter, the issue of knowledge was subsumed by the issue of possession—knowledge did not stand on its own as an issue in the trial. Therefore, the admission of his prior conviction could not be supported on that ground.

* The same is true of intent. The possessor of the drugs likely intended to sell them. Was the prior conviction probative of intent? Court points out conflict in prior case law. Court decides it need not resolve conflict because the evidence was too prejudicial. The other evidence in the case was available to prove this element, so admission of the prior was just piling on. And the prejudicial effect was very great.

* Not harmless error to admit the evidence of the prior conviction. Convictions and sentence vacated. Case remanded for new trial.

Thursday, February 11, 2010

Quick Summary of Day

AFPDs in our office are going to try to offer regular summaries of a day's opinions. We encourage everyone to check the opinions out---these summaries are really short and limited and do not cover all of the key points. They are offered only as a quick overview of recent decisions. We encourage you to post comments regarding these summaries, your review of the cases, opinion content, etc.

Here is yesterday's summary:



Defendant in a fraud case struck a plea agreement to pay $1 million restitution by a date certain.

Defendant failed to pay anything. Government moved to re-sentence the defendant, who had originally received a 25-month sentence and no joint and several liability for millions more, for wilful failure to pay.

Following an evidentiary hearing, the court sentenced the defendant to 51 months in prison and joint and several liability for $6.6 Million. This was all pursuant to 18 U.S.C. § 3614 (allows resentencing upon failure to pay restitution and/or a fine).

The Circuit Court affirmed, finding the evidence supported the ‘wilfulness’ determination.




Crack re-sentencing.

District court declined to reduce the defendant’s sentence below the 75 months the defendant received at a post-Booker re-sentence (from another court).

The Circuit Court affirmed, saying that the district court recognized its discretion to lower the sentence, but was not required to do so, and although the opinion declining to exercise the discretion was curt, it was enough.

It should be noted that the SMR by probation recommended against a further reduction.




The Court affirmed a denial of a motion to suppress even though the affidavit contained erroneous information because a de novo review of what was left after redaction was sufficient.

Wednesday, February 10, 2010

Beautiful Day for Us in Michigan

If you are in Michigan, be happy. Yes, we're covered in snow, but running from the police while handcuffed is NOT a crime of violence!!!
In United States v. Love, No. 08--2164 (6th Cir. Feb. 10, 2010), Judges Ryan, Cole, and Clay continued the Mosley reasoning from 2009. In Mosley, the 6th Cir. said that Resisting and Obstructing a Police Officer under Michigan law is not categorically a crime of violence. Left open the Shepard-documents door. In Love, the Court considered the Shepard documents and found that running from the police while handcuffed and evading arrest for two months is not a crime of violence. This behavior qualifies as failing to obey a lawful command, and so it's not a crime of violence under Section 4B1.2(a)(2).
The obliteration/alteration of the serial number analysis is not so good. Court looks to United States v. Carter, 421 F.3d 909 (9th Cir. 2005). Enhancement applies when number is materially changed such that accurate information is less accessible. Scratched digits satisfy this test.

Judge Cole concurred to note that:

1) The Court has not determined whether "the use or threatened use of physical interference or force" qualifies (or does not qualify) as a crime of violence under the R and O statute.

2) The Shepard inquiry applies in a broader context than just analysis under the "otherwise clause" of Section 4B1.2(a)(2).