Tuesday, February 16, 2010

Quick Summary---Delivered Fresh for You


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

JERRY MORRISON


PUBLISHED

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.


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KENNETH FRAZIER

http://www.ca6.uscourts.gov/opinions.pdf/10a0036p-06.pdf

PUBLISHED

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.


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State Court Habeas Appeal

TREON MCELRATH

http://www.ca6.uscourts.gov/opinions.pdf/10a0039p-06.pdf

PUBLISHED

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.

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