Catching Up

I was at a conference last week and have some great info to post regarding discovery and other hot topics. But let me try to catch up with our AFPDs' posts. They kept right on summarizing while I was gone.

Feb. 19:

LORD SHAWN RUSSELL

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0046p-06.pdf

The Court affirmed the Defendant’s conviction and the sentence of 684 months (57 years!). Seven claimed errors in the district court proceedings:

(1) Defendant was denied an unbiased jury by the district court’s failure to excuse juror number four for cause;

(2) the jury instructions on the § 856(a)(1) charges for maintaining a drug-involved premises were improper in their definition of "purpose";

(3) his conviction for maintaining the Nagold home (count 6) was based on insufficient evidence;

(4) because count 6 was based on insufficient evidence, count 7, possession of a firearm in furtherance of maintaining the drug house at Nagold, must also be reversed;

(5) the jury instructions on the § 856(a)(1) counts constituted a constructive amendment to the indictment because they included more possible activities than "maintaining" the property;

(6) his conviction for possession of crack cocaine with intent to distribute was based on insufficient evidence; and

(7) the district court abused its discretion by converting the $11,375 in cash to cocaine base to determine the applicable base offense level.

After a lengthy discussion of all the issues, the Court affirmed the conviction and sentence.

*******

ARTEMIA STEWART

Published

Habeas

http://www.ca6.uscourts.gov/opinions.pdf/10a0047p-06.pdf

Artemia Stewart was convicted of second-degree murder, armed robbery, and felony firearm. Stewart was sentenced to concurrent terms of 39 to 60 years of imprisonment on the murder and robbery convictions and two years on the firearm charge. After the Michigan appellate courts denied Stewart all post-conviction relief, Stewart filed a petition for federal habeas corpus relief.

Holding that there was insufficient evidence to convict Stewart of second-degree murder, the district court granted his petition. The Court reversed the judgment of the district court and remanded the case with instructions to deny the petition for a writ of habeas corpus.

ISSUE:

Sufficiency of the evidence to convict Stewart as an aider and abetter. Court found that it was not fundamentally unfair to imply malice to aider and abetter.

*******

JAMES C. HARDISON

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0110n-06.pdf

James Hardison challenged his 81-month sentence for conspiring to defraud mortgage lenders and for identity theft. The Court affirmed.

Procedural reasonableness.

A district court must consider the applicable sentencing guideline range and the factors listed in 18 U.S.C. § 3553(a), accurately calculate the sentence, and adequately explain it. The district court fell short on this front, the Defendant charged, because it did not allow him to introduce evidence showing that "he did not intend . . . to cause a loss in the amount of the loans sought."

Clearly erroneous review applied to the district court’s loss calculation, and fresh review applied to its legal interpretations.

Problem one with the argument was that the Defendant never asked for an opportunity to present this evidence or, for that matter, any other evidence in support of his sentencing-mitigation arguments. Soon after the proceeding started, the district court asked the Defendant whether he wanted to object to the PSIR, which recommended that the intended loss amount should be $1,005,967. The Defendant claimed that the PSIR’s figure "was not supported by the evidence at trial," as he personally received only about $10,000 and because he allegedly "took affirmative steps to renounce . . . his participation" in two of the loans. The Defendant never asked the sentencing court for leave to introduce additional evidence regarding the "intended loss." Instead, he chose to rely solely on the evidence that already had been introduced at trial. Any complaint that the sentencing court refused to let the Defendant introduce evidence in support of his sentencing arguments thus misstate what happened at sentencing.

Problem two with the argument is that it merely represented another way of attacking the district court’s calculation, not the evidence permitted to be introduced in support of it.

Problem three with the argument was that no authority supported it. The one case on which the Defendant relied was United States v. Confredo, 528 F.3d 143 (2d Cir. 2008), and did not help him.

Problem four with the argument was that the district court’s ultimate sentence accounted for most, if not all, of the Defendant's concerns.

And the variance eliminated any prejudice from the court’s initial "intended loss" calculation and the Defendant’s arguments on appeal.

*******

JERRY WOOD

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0111n-06.pdf

Defendant Jerry Wood argued that he received ineffective assistance of counsel when his lawyer advised him to plead guilty rather than pursue a long-shot defense at trial. The Court rejected this argument and affirmed.

When deciding the issue of the ineffective assistance of counsel claim on direct appeal, the court basically rejected a good faith belief that one is not a felon as a defense to a Sec. 922(g) charge.

The court said:

Wood now argues that "he would have been acquitted" if his counsel had only presented a defense based on his "good faith belief that his 1978 conviction had been expunged." By failing to present that defense, the Defendant says, his counsel rendered ineffective assistance.

This argument, however, is predicated on an unrealistic view of the case law.