Friday, May 21, 2010

Summaries: May 13 to 17 and Medicaid Fraud, Evidentiary Issues

Our AFPDs offer these summaries for May 13 to 17.


Direct Appeal


Defendant appealed the denial of his motion to suppress and the sentence he received. The Court affirmed the suppression decision and denied any sentencing appeal as having been waived by the plea agreement.

The Circuit Court found the affidavit for the warrant weak but sufficient on the issue of probable cause. The majority opinion spends much time refuting the contrary conclusion of the dissent.

There is an interesting sidebar flowing throughout the opinion about the Defendant’s failure to ask for a Frank’s hearing but continuously arguing that Frank’s should apply. One is left with some impression that had there been a request for a remand on the Frank’s issue it might have been granted.

Court finally relies on the Leon ‘good faith’ exception in any event.

As to the sentencing appeal, the Court found that the Defendant had waived his right to appeal the denial of safety valve treatment by the Court. (The Court seems to have found the appellant’s brief wanting on the issue of waiver.)

As noted, there was a very vigorous dissent on the probable-cause issue and the good-faith-exception issue.



State Habeas


Petitioner–appellant was convicted in Ohio of aggravated murder and aggravated robbery and sentenced to death. Petitioner appealed the district court’s denial of his petition for a writ of habeas corpus, challenging the state court’s failure to conduct a competency hearing, trial counsel’s effectiveness in developing mitigation evidence, and the trial panel’s consideration of mitigation proof. Circuit Court affirmed the district court’s decision and dismissed the petition.


Petitioner’s counsel rendered ineffective assistance by failing to adequately investigate and prepare mitigating evidence for the penalty phase of trial. Dissent would vacate the sentence and remand.

Because counsel’s investigation into mitigating evidence was deficient and there was a reasonable probability that, absent the insufficient investigation, the sentencer would have concluded that Petitioner should not have been sentenced to death, dissent would vacate the sentence and remand. But dissent would leave Petitioner’s conviction undisturbed.

Case is relatively fact specific.



Direct Appeal


Defendant was convicted by a jury of possession with the intent to distribute a quantity of cocaine, and with the possession of firearms in furtherance of a drug trafficking offense. In order to have counsel appointed, Defendant filed a financial affidavit.

On redirect examination, government moved to admit this financial affidavit to provide some evidence of guilt. The district court admitted the affidavit. Circuit Court concluded that the district court erred in admitting the affidavit, but the error was not plain. So, the Court affirmed the convictions.

Plain error was the problem. Failure to specifically object to the admission of the financial affidavit allowed the Court to affirm the conviction despite the erroneous evidentiary decision below.

Court found that the district court did not make a ruling because defense counsel failed to object. Plain error applied. Defendant argued the failure to object could be excused. Court found, however, that, while defense counsel encountered a difficult situation, the situation did not excuse the failure to object.

In light of the other evidence, Court concluded the error did not affect the outcome of the district court proceedings.



State Habeas (two cases were consolidated)


In first case, number 05--6925, petitioner filed a motion for equitable relief, contending that the prosecution engaged in misconduct by not revealing to defense that it had granted a key witness, Ronnie McCoy, a deal in exchange for his testimony. Petitioner argued that by allowing McCoy to testify that he had not received special consideration the prosecution had knowingly offered perjured testimony at trial and perpetrated fraud on the district court during the subsequent habeas corpus proceedings (government submitted affidavits from McCoy and the prosecutor denying the existence of a deal).

In the second case, number 06--6330, petitioner filed a motion, alleging that the prosecutor improperly vouched for McCoy during closing argument.

The Circuit Court denied the petitions filed subsequent to his original habeas case (which he had lost) as barred procedurally. This conclusion came despite the fact that it appears there was at least arguably perjured testimony offered by the prosecution and perhaps a fraud upon the court.

The dissent vigorously explained that, in essence, the majority ignored the facts of the situation, ignoring seemingly compelling circumstantial evidence of perjury. Dissent felt petitioner should at least receive an evidentiary hearing on the issue.

To the dissent, remand for an evidentiary hearing would be preferable. Dissent felt majority's position made it so that, if the parties to an undisclosed deal continue to assert that no deal exists, it would be impossible for a petitioner even to get the chance to test their assertions by cross-examination. Dissent asserted that a rule that declares that a prosecutor may hide (and a defendant must seek) is not tenable in a system constitutionally bound to accord defendants due process. Without a chance to cross-examine McCoy, the prosecutor, and possibly other witnesses, the petitioner could never prove the existence of a deal.

To the dissent, even though there may have been a deal between McCoy and the prosecutor, as was likely, there was no quantum of evidence (circumstantial or otherwise) that could convince the majority that an evidentiary hearing was warranted. But because the record before the Court indicated a very real possibility that McCoy and the prosecution had reached a mutual understanding that McCoy would not be prosecuted, the dissent felt an evidentiary hearing should have been held to determine whether the affidavits submitted in the initial habeas proceeding constituted a fraud on the court.

Otherwise, the Court could not be assured that due process had been afforded, that justice was done, and that the Court had avoided the consequences of a mistake---especially in the context of a death penalty case. Dissent noted that "death is special."



Direct Appeal


Defendant raised four issues. First, that there was insufficient evidence for the jury to convict her of falsely pretending to be a government agent while demanding money. Second, that evidence introduced at trial established two conspiracies, which created a variance and resulted in prejudice to her. Third, that there was insufficient evidence for the jury to convict her of conspiring to defraud the United States. Finally, that the district court erred when it denied her motion for a mistrial.

Opinion is lengthy. The Circuit Court affirmed the convictions. Evidence presented at trial was sufficient to support both of Defendant’s convictions. Defendant did not established that the evidence presented at trial could reasonably be construed only as supporting a finding of multiple conspiracies, so Defendant did not show that the evidence created a variance. Neither did Defendant establish any error in the admission of the prior convictions of one of her witnesses or the district court’s decision to deny her motion for a mistrial.



Direct Appeal


Case involved Medicaid fraud on a relatively large scale. The Defendant went to trial and lost on all counts. On appeal, she raised numerous procedural and evidentiary arguments against the District Court’s rulings. In a lengthy opinion describing what appears to be more than sufficient evidence, the Circuit Court ruled against the defendant on every issue, including that a low end, within-guidelines sentence was reasonable. The convictions and sentence of 97 months were affirmed. 

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