Sixth Circuit Upholds Conviction for 51 counts of fraud, money laundering and conspiracy to commit fraud against Nashville Mortgage Broker

• US v. HAROLD STAFFORD

In this well written opinion, Judge Sutton summed up the activity of Mr. Stafford of Nashville:  "Harold Stafford set out to make money from a quaint phenomenon once known as rising home prices.  The first premise of his plan was legitimate but mistaken—that residential real estate would continue to appreciate in value. The second premise of his plan was illegitimate and equally mistaken—that he could get away with filing a series of fraudulent loan applications to purchase the properties.  When the predictable happened, a jury convicted him for violating several white-collar criminal laws, and a judge sentenced him to 96 months in prison."


On appeal to the Sixth Circuit, Stafford raises three issues; the most serious of which is enhancement at his sentencing.  The Sixth Circuit affirmed the District Court on all grounds. 


Regarding an enhancement for obstruction of justice, the Court noted, Stafford told a straw buyer of a home that, if he faced questioning, “we can’t say anything, we have got to stick together.” Because Stafford impeded an ensuing investigation of the mortgages in question, it sufficed as an enhancement for obstruction.

Sophisticated Means was satisfied as an enhancement when Stafford instructed others to submit applications for owner-occupied loans; told straw buyers to purchase all of their houses in the same month before the purchases appeared on their credit reports; directed others to apply for loans from different lenders; supplied people with falsified tax returns; and otherwise misused his specialized knowledge of the mortgage industry to create and sustain this conspiracy.  


Lastly, the Court found he was an organizer or leader because he recruited many straw buyers, enlisted builders to sell nearly two dozen homes and brought others in on the scheme. He gave direction and oversight at all levels of the scheme the Sixth Circuit found.

Failure to use turn signal not a basis for stop, crossing double yellow line is in this DUI

• STATE OF TENNESSEE v. CARLIE D. SCHOENTHAL

In this Chattanooga DUI Officer David Allen began following a woman who was in the vicinity of a local bar.  He followed her for some distance noting that she failed to use a turn signal to indicate a turn and that she crossed the double yellow line of Chestnut Street.

Ms. Schoenthal pleaded guilty to DUI and took a certified question to the Court of Criminal Appeals on whether this was a lawful traffic stop by Officer Allen.  The appeals court found no problem with Ms. Schoenthal's turning without a turn signal since the road was virtually empty and it did not affect traffic (Judge Steelman made no findings against her on this basis either).  However, the court did have a problem with her crossing the center line and on that basis upheld the trial court's denial of the motion to suppress the traffic stop.

The Court of Criminal Appeals has previously stated that “we do not think that a momentary drift out of a lane constitutes driving a vehicle outside of a single lane.” Unfortunately for Ms. Schoenthal, the video here shows that she did more than momentarily and slightly weave out of her lane. Instead, the video reflects that the she crossed the double yellow line and, for a brief period of time, was traveling on the wrong side of the road before drifting back into her lane. The court found her crossing of the double yellow lines and briefly driving on the wrong side of the road amounted to more than simply poor driving and this supported Officer Allen's stop.

As this court has previously held, “a turn signal is only required by law when another vehicle may be affected by the turn.” 
State v. Gonzalez.

Tennessee Statute for DUI covers Alcohol for Any Intoxicant

• STATE OF TENNESSEE v. JESSICA LEE CLARK

Ms. Clark appeals her conviction of DUI and essentially asks the Court of Criminal Appeals to determine whether the term “any intoxicant” as used in Tennessee Code Annotated section 55-10-401(a)(1) includes alcohol.  It does.


In this case, the indictment originally varied from the exact language of the statute.  The indictment specifically referenced alcohol and Ms. Clark objected to that term.  After the trial court agreed with the objection, and redacted the word alcohol from the indictment, Ms. Clark believed that the state could only present other than alcohol proof at trial in support of this DUI prosecution.  The state contended that any intoxicant included, by definition, alcohol.  That difference is the basis of this appeal.


In reasoning that alcohol is within the meaning of intoxicant, the court noted that previous TN Supreme Court decisions have said “It is our opinion that the Legislature, in making it a crime to be in physical control of an automobile while under the influence of an intoxicant, intended to enable the drunken driver to be apprehended before he strikes."

Based upon the ordinary meaning of the word intoxicant in Webster's Dictionary, the use of the word intoxicant in the Tennessee Code, and prior case law, the legislature intended the term intoxicant to include alcohol.

Defendants Have No Entitlement to Second Grant of Probation, says Court of Criminal Appeals

• STATE OF TENNESSEE v. ROBERT LYNN HUNT, JR.

The Court of Criminal Appeals has stated in this opinion that in revoking probation, a trial court had the authority to order Mr. Hunt to serve his original four year sentence in confinement. As authority for this action the court looks to both the Tennessee Code (Tenn. Code Ann. §§ 40-35-310 and -311(e)) and case law, State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).

In a language that cannot be mistaken for anything less than a directive to defendants and counsel, the court wrote: "This court has repeatedly cautioned that an accused, already on probation, is not entitled to a second grant of probation or another form of alternative sentencing.  Therefore, the trial court did not err by ordering the appellant to serve his original sentence in confinement."

Here, Mr. Hunt was on probation for child neglect and abuse of his infant son.  His probation officer filed a probation violation report, alleging that Hunt had violated his probation by failing to obey laws, failing to report to his probation officer, and using marijuana. Hunts' four year sentence was revoked by the trial court based on these violations. This action by the trial court is affirmed.

Evolution Bill Put On Ice For Now

History does have a way of reappearing, and in the Tennessee legislature an act introduced by Senator Watson is reminiscent of a legislative act from eighty-six years ago. It was in 1925 that a high school biology teacher, John Scopes, was accused of violating Tennessee's Butler Act that made it unlawful to teach evolution.

This year Senator Watson has introduced another bill that will fuel the debate between science and intelligent design.  See, Senate Bill 893.

Here is an excerpt from the Bill:  

The teaching of some scientific subjects, including, but not limited to, biological evolution, the chemical origins of life, global warming, and human cloning, can cause controversy. Some teachers may be unsure of the expectations concerning how they should present information on such subjects 

Toward this end, teachers shall be permitted to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught.   

Neither the state board of education, nor any public elementary or secondary school governing authority, director of schools, school system administrator, or any public elementary or secondary school principal or administrator shall prohibit any teacher in a public school system of this state from helping students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught.

I was unaware that we needed new laws to help students understand science.  I assumed that science teachers already had their days filled with enough direction from elected politicians on how to run their classrooms.  But it appears I am mistaken as Senator Watson believes that it is important state business to introduce this bill.  From reading it, you can see that it really does not say anything, but it implies that new direction in science in the form of his crafted help is on the way to Tennessee classrooms.


The "help permitted by teachers" is what is causing the controversy in Nashville and across the state. It seems that Senator Watson sees controversy in, among other things, evolution, and he feels compelled to give the students of Tennessee the opportunity to be reeducated on this point.


Senator Watson has announced that he will pull the bill for now in various statements to the media.  But the bill is not gone for good, Senator Watson says:


 “I think it’s a good bill, I like the bill. But I’m trying to work with all parties to get it in it’s best form, that I can, so I anticipate it’ll probably be back next year.”

If this bill does go through, then eventually expect a challenge of a kind similar to the one that resulted in a jury trial that Clarence Darrow and William Jennings Bryan participated in at Rhea County Court during the summer of 1925. That is where the legislation contemplated by Senator Watson is headed.

seven scientists who testified for the defense

John Scopes

Clarence Darrow questions William Jennings Bryan  
outdoor proceedings during the trial

Vehicular Homicide Convictions Ordered to Run Concurrently By Court of Criminal Appeals.

• STATE OF TENNESSEE v. MICHAEL W. KEMP

Michael W. Kemp, was convicted by a Smith County Criminal Court jury of three counts of reckless vehicular homicide and three counts of reckless endangerment with a deadly weapon. The Court of Criminal Appeals concludes that the trial court erroneously sentenced the defendant to consecutive sentences.


The trial court made the following findings to support consecutive sentences. The defendant was involved in a chase that led to a collision in the middle of downtown Carthage and then ultimately led to a major collision resulting in the victims’ deaths showed that the defendant’s behavior indicated little or no regard for human life and no hesitation about committing a crime in which the risk to human life was high.  The court found that the defendant  took the  law into his  own hands  and committed this series  of events, indicating that consecutive  sentencing was  necessary to protect the public from the defendant.


In reversing the trial court, the Court of Criminal Appeals states that:

the defendant’s conduct certainly led to devastating results – the deaths of three individuals.  However, there is simply no support in the record for a finding that consecutive sentences were necessary to protect the public from further criminal acts of the defendant. 

Here, the Court found that Kemp is a forty-seven-year-old man with no prior criminal record. Witnesses testified that Kemp was remorseful for the loss of the victims’ lives, and numerous letters were submitted informing the court of the Kemp’s highly-regarded character. Although the incident was clearly tragic, the Court wrote, the crime was not committed in an extraordinarily wanton or violent manner nor did it appear that he would break the law again.

Sixth Circuit Allows Privacy Act Case To Go Forward On Some Counts Where A Muslim Mother and Daughter Were Held, Searched, and Car Damaged Without Cause

• SHEARSON V. UNITED STATES DEPARTMENT OF HOMELAND

Shearson, a US citizen, and her four-year-old daughter, both Muslims, returned by car from Canada in January 2006, via the Peace Bridge in the Buffalo, New York/Fort Erie area. On scanning their United States passports, the computer flashed “ARMED AND DANGEROUS,” and agents asked Shearson to turn over her car keys and step out of the car. Shearson was handcuffed, and, after several hours of questioning in the terminal, she and her daughter were released without explanation. As they left, Shearson asked whether her car had been searched and she was told no search had been conducted. This was a lie. Shearson’s vehicle had been searched and it was damaged in the course of the search.

The Sixth Circuit held that "We VACATE the dismissal of Shearson’s claims under §§ 552a(b) and (e)(7) because Defendants could not properly exempt the TECS and ATS from civil liability for violating these sections. We REMAND these claims for further proceedings consistent with this opinion."

This is a civil action to seek records to account for the problems that Shearson and her daughter encountered.  The governing authority is THE PRIVACY ACT OF 1974.

Supreme Court Holds State's Do Not Waive Sovereign Immunity For Inmate Claim Under the Religious Land Use and Institutionalized Persons Act




• SOSSAMON v. TEXAS

Sossamon, a Texas prisoner, sued Texas and prison officials, seeking injunctive and money damages under the Religious Land Use and Institutionalized Persons Act for Texas prison policies that prevented inmates from attending religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship for these same disciplinary reasons.

The Supreme Court today rejected Sossamon's claim by affirming a lower court decision to allow summary judgement.

The Supreme Court held that in accepting federal funding, neither Texas nor any state consents to waive a state's sovereign immunity to private suits for money damages under the Religious Land Use and Institutionalized Persons Act.

CCA Affirms Second Degree Murder Conviction

• STATE OF TENNESSEE v. MICHAEL DESHAWN SMITH

Michael Deshawn Smith, pleaded guilty to second degree murder and was sentenced to twenty-three years’ in prison. On appeal, he contends that the trial court imposed an excessive sentence. The Court of Criminal Appeals at Jackson affirms.  This is another case where counsel for the defendant did not make the guilty plea transcript part of the record on appeal.  Governing authority is T.R.A.P. 24(b) and State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993).  Without the transcript, the court will not conduct a de novo hearing but presumes the trial court got it right.

"This court considers the guilty plea hearing transcript to be vital to a de novo review and potential resentencing by this court as required by law."

The court points out that where a defendant fails to provide the court with a complete record on appeal, the defendant should file a motion to supplement the record. See T.R.A.P. 24(e).

Sixth Circuit Reverses and Finds "facilitation of the burglary of a building under Tennessee law is not categorically a Violent Felony"

• US v. CHARLES VANHOOK

The Sixth Circuit today reversed the District Court, Western District of Tennessee for a sentencing issue under the Armed Career Criminal Act (ACCA).

The background is that the defendant, Vanhook, pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).  For sentencing purposes, the probation office wrote a presentence report (PSR) and concluded that Vanhook qualified as an "armed career criminal” as a result of having committed three violent  felonies. One of these predicate felonies was a state conviction for facilitation of the burglary of a building.  Because of his status as an armed career criminal, Vanhook was sentenced to 15 years imprisonment.  Vanhook appealed this sentencing determination but was unsuccessful in his initial trip to the Sixth Circuit.

Since the initial appeal, the Supreme Court issued its decisions in United States v. Begay, and United States v. Chambers, which substantially altered the legal test courts must use when determining whether a prior state court conviction constitutes a violent felony for armed career criminal purposes. In light of its decisions in Begay and Chambers, the Supreme Court vacated Vanhook’s sentence and remanded the case back to the Sixth Circuit. 

The Sixth Circuit remanded the case back to the Western District Court TN which found that his burglary conviction again qualified him as an armed career criminal for ACCA purposes.  This sentencing determination was appealed to the Sixth Circuit for determination of the District Court's findings.

Generally, "[a] panel of [the Sixth Circuit] Court cannot overrule the decision of another panel." Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001)). However, “this case presents the unique situation in which an inconsistent decision of the United States Supreme Court requires modification of the [prior]decision." 

This panel of the Sixth Circuit today vacates the District Court's findings and finds that facilitation of a burglary of a building under Tennessee law is not categorically a violent felony for armed career criminal purposes.

The Sixth Circuit writes that "this is one of the rare cases in which a statute criminalizing “knowing” conduct does not describe conduct sufficiently purposeful to qualify as a violent felony.  We do not hold that ‘knowingly’ always suffices under (Supreme Court precedent) for perhaps there are some offenses that, while committed ‘knowingly,’ do not typically involve purposeful, violent, and aggressive conduct.

The Court observes: this case "presents the novel question of whether an individual commits a purposeful crime when he acts with the knowledge that another intends to commit a crime, but without the intent to commit or assist in the commission of the crime itself."

The District Court's classification of Vanhook as an armed career is vacated and his case is again remanded back to the Western District Court of TN.

The Prosecution Rests, but I Can’t. By John Thompson

Earlier we posted about John Thompson and how his civil jury award of 14 million dollars was overturned by the Supreme Court.  Below is Mr. Thompson's open letter published in the New York Times.  We found it compelling and have reproduced it below.

• John Thompson NYT

I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.

(...Continued...)

John Thompson is the director of Resurrection After Exoneration, a support group for exonerated inmates.

Failure to Include Guilty Plea Transcript is Critical Error on Appeal

• STATE OF TENNESSEE v. JOHN M. BAILEY

Bailey appeals his ten year sentence after a guilty plea for aggravated assault and claims the court misapplied the enhancement factors.  He submitted the record on appeal but did not include the transcript of the actual guilty plea.  In that step his attorney made a critical error.

The Court of Criminal Appeals considers the guilty plea hearing transcript to be vital to a de novo review and potential resentencing by this court as required by law.  See, T.C.A. §40-35-401 (2010). The “‘failure to include the transcript of the guilty plea hearing in the record prohibits the court’s conducting a full de novo review of the sentence.  No matter how developed a record may appear, the court of criminal appeals cannot know its full extent unless the guilty plea transcript is included. “In the absence of an adequate record on appeal, this court must presume that the trial court’s rulings were supported by sufficient evidence."  Appeal denied.

Sixth Circuit Reverses TN Senator John Ford's Convictions for Wire Fraud and Concealing a Material Fact to The Feds.

• US v. JOHN FORD

This case is the second federal prosecution of State Senator John Ford and involves his failure to disclose his financial interests in certain organizations working with TennCare.  A jury convicted Ford of “honest services” wire fraud and of concealing a material fact, that is failing to disclose his relationships with Omnicare and another company that paid him and who also who did business with TennCare.

The Sixth Circuit found that Ford did not owe TennCare a contractual duty to report his financial interests with Omnicare. The only reporting duties owed by Ford here were owed to the senate and election registry.  Therefore, reasoned the court, failing to disclose those business relationships to TennCare was not a violation of federal law. We see from the result that Ford engaged in obviously poor ethics and perhaps violations of state election law but his actions did not amount to a federal crime.

Senator Ford argues too that in light of the Supreme Court's holding in the recent Skilling case (Enron prosecution) his wire fraud conviction should be set aside.  The Supreme Court in Skilling held that the honest services wire fraud statute “covers only bribery and kickback schemes.”  Senator Ford's convictions were for his failure to disclose his financial interests, not bribes or kickbacks.  It was on this ground that the Sixth Circuit vacated and reversed his wire fraud convictions.

• John Ford photos from the Commercial Appeal

D&H TN Law Blog Featured In Solicitors World Wide Blog Today

• Link to Solicitors Blog

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Judge Shopping Case Returns to Criminal Court in Hamilton County, TN

• STATE OF TENNESSEE v. GARY WAYNE MCCULLOUGH

This is the Hamilton County TN Wildlife Resource Authority case that has drawn considerable attention for its allegations of judge shopping.  Today, the Court of Criminal Appeals reversed the trial court and returned the case back to criminal court on an indictment.  In short, the defendant once again faces charges of boating under the influence and possession of marjiuana.

The court found that because the proof from the hearing does not support the trial court’s ruling that the defendant, who was prosecuted pursuant to an arrest warrant (as opposed to a citation), suffered a Constitutional violation of due process by the TWRA’s practice of judge-shopping in citation cases, the order of the trial court is reversed.

State prosecutors and the attorney for McCullough both agree that the TWRA engaged in a repeated pattern of judge-shopping when setting citation cases for hearing in the Hamilton County General Sessions Court. The trial court ruled that this pattern of judge shopping deprived the defendant of his due process rights under both the Fourteenth Amendment of the United States Constitution and article I, section 8 of the Tennessee Constitution.

On appeal, the defendant contends that the trial court correctly ruled that the defendant’s due process rights were violated by TWRA officers’ judge-shopping but that the trial court erred by not dismissing the indictment. The state disagrees and claims instead that the trial court got it wrong by dismissing the indictment and remanding the case to general sessions court because “the defendant has failed to prove not only that his case was improperly assigned but also that he was prejudiced by the assignment.” Also, the state contends that the indictment by the grand jury cured any defect that may have occurred in general sessions court.

Siginificant to the court of appeals, the defendant in this case was prosecuted pursuant to an arrest warrant, not a citation. The parties stipulated that no evidence would show that the defendant’s random computerized case assignment had been manipulated or changed. Regardless of any findings

the trial court made relative to TWRA officers’ choosing particular judges to hear citation cases, the record is clear that the defendant was prosecuted pursuant to an arrest and that his case assignment was not manipulated. The court wrote that because proof is absent in the case that this case was assigned to Judge Moon’s court via judge-shopping by the TWRA, the defendant’s due process allegation must fail.

Upon remand, the trial court is directed to reinstate the indictment.

Death Penalty? What aggravating circumstances under Tennessee law are present in Jesse Matthews’ case?

Jesse Matthews is currently in the Hamilton County Jail charged with felony murder after the murder of Sgt. Tim Chapin with the Chattanooga Police Department.

What aggravating circumstances are present in his case which makes him eligible for the death penalty? After a felony murder conviction, you can expect the State of Tennessee to introduce proof of a whopping six (6) aggravating circumstances to support their argument for the death penalty. Tennessee code lists sixteen (16) different aggravating circumstances. By my count, at least six (6) apply. They are as follows: -The defendant was previously convicted of one (1) or more felonies who elements include the use of violence to the person; -The defendant knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder; -The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; -The murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, any robbery; -The murder was committed by the defendant…during the defendant's escape from lawful custody or from a place of lawful confinement; -The murder was committed against any law enforcement officer who was engaged in the performance of official duties, and the defendant knew or reasonably should have known that the victim was a law enforcement officer engaged in the performance of official duties.

A death penalty jury will weigh these aggravating circumstances and compare them with nine (9) mitigating circumstances. The jury must unanimously agree that the State has proven at least one or several aggravating circumstances beyond a reasonable doubt and that the aggravating circumstances outweigh any mitigating circumstances beyond a reasonable doubt before the death penalty will be valid.

• Chattanoogan.com article on Jesse Matthews
• timesfreepress.com article on medical examiner's report
• wrcbtv.com update of Jesse Mathews w/ video

TN Supreme Court Holds That Raw IQ Scores Are Not Alone The Limiting Factor In Death Penalty Cases For Intellectual Disability

• MICHAEL ANGELO COLEMAN v. STATE OF TENNESSEE

The Tennessee Supreme Court finds in the case of death penalty inmate Coleman that Tenn.Code Ann. §39-13-203(a)(1) does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score is artificially inflated or deflated.


The underlying facts to Coleman's case are that the victim, Leon Watson, left his home on the morning of May 2, 1979 to go to a nearby grocery store. On the way, he was confronted by Michael Coleman and another.  Coleman robbed and killed Watson, Coleman fired the fatal shot. Coleman also looked through Watson’s wallet and stole a pistol and citizens’ band radio from Watson’s car. A short time later, officers arrested Coleman on another charge. After being advised of his Miranda rights, Coleman confessed that he had shot and robbed Watson.  After a jury trial, Coleman was convicted of robbery and murder and given the death penalty--in part due to his prior violent history including convitions for felonies.  Mitigation evidence on the issue of intellectual disability was limited to raw IQ test scores.

On this appeal from death row, considering the issue of intellectual disability as a possible mitigating factor, the Tennessee Supreme Court observed: "our review of all the cases involving the application of Tenn. Code Ann. § 39-13-203 reflect that the parties and the courts have not been limiting their consideration of whether a criminal defendant has a functional intelligence quotient of seventy (70) or below to the defendant’s raw I.Q. test scores. Even though the state is asserting here that raw I.Q. test scores are the sine qua non for determinations under Tenn. Code Ann. § 39-13-203(a)(1), it has not been hesitant in other cases to present evidence challenging the accuracy of I.Q. test scores that are not favorable to its position."


Accordingly, Coleman's case is remanded to the trial court where Coleman and the state are free to present additional evidence regarding whether Coleman meets the definition of intellectual disability under Tenn. Code Ann. § 39-13-203(a).

District Court Abused Its Discretion Regarding Non Frivolous Arguments For Leniency, says Sixth Circuit

• US v. ROBERT M. PIZZINO,

This case is from the Eastern District of Michigan.  In 2009, Robert Michael Pizzino pleaded guilty to distributing child pornography and received a 180-month sentence. He appealed his sentence in part based upon the district court's not fully addressing his sentencing memorandum and arguments at sentencing based upon the memorandum.

The Sixth Circuit in Pizzino held that the district court abused its discretion in failing to consider Pizzino’s non frivolous arguments for leniency, the court vacated his sentence and remanded for a resentencing that addresses them.

In his presentencing memorandum, Pizzino's lawyer presented several arguments for a lower sentence, including his limited criminal history, his low risk of recidivism, and the alternate sentences available. Pizzino's lawyer supplemented the memo with a statement from his therapist, as well as the

therapist’s notes from Pizzino’s sessions, all of which highlighted his progress and low risk of recidivism. Pizzino’s lawyer further emphasized these factors at the sentencing hearing.

The Sixth Circuit found that a district court’s acknowledgement that it received and understood a defendant’s sentencing memorandum does not fulfill its duty to respond to the defendant’s non frivolous arguments, as such a conclusive statement leaves the Sixth Circuit unsure as to whether the district court adequately considered and rejected Pizzino's arguments regarding proper application of the § 3553(a) factors or whether it misconstrued, ignored,or forgot them.

Tennessee Sex Offender Act Applies to Other State Convictions Prior to Act's Passage

• JOHN DOE, alias a Citizen and resident of Hamilton County, Tennessee, v. MARK GWYN, TBI

The Tennessee Court of Appeals held that the TN Sex Offender Act applies to people living in TN convicted of crimes from other jurisdictions prior to the Act's existence.  At issue here is the civil declaratory action taken by one such affected individual.  A John Doe plaintiff filed suit seeking to show that the act was unconstitutional.  Of particular force was the argument that of the crimes that Mr. Doe pleaded guilty to, he was not required to register as a sex offender in his home state at the time, nor would he have been required to register in TN then, as the law then did not require registration.  The law changed in 2004 and now Tennessee law requires registration not only for current sex offenders but also for people from other states now living in TN and from earlier convictions as listed in the act.


The Court of Appeals affirmed the ruling of Chancellor Frank Brown, Hamilton County on essentially five major points.  They are as follows: 1. Courts have overwhelmingly viewed sexual offender registry statutes as nonpunitive. 2. Mr. Doe has failed to articulate how the registration requirements would uniquely impose disability or restraint on him, as he must to sustain an “as applied” challenge. 3. The court agrees that the Act was enacted to protect the welfare of the people of Tennessee and not to further punish the offenders who are required to register. 4.  The court concludes that there is a clear and rational non-punitive interest in the State of Tennessee’s desire to inform the public of Mr.Doe’s history of sexual offense. 5.  Here, Mr. Doe has not stated any reasons why requiring him to register would be more excessive than for any of the other thousands of sexual offenders registered in Tennessee.

Appeals Court Reverses Homicide Conviction: Case Dismissed

• STATE v. LARRY WARD

In this Memphis case a jury convicted Larry Ward in the negligent homicide of his wife.  The issue at trial was homicide vs. suicide.  The state indicted on first degree murder and the jury returned a verdict on the lesser included charge of negligent homicide.

The proof showed that the victim died as a result of a close contact gunshot wound to the head. However, the evidence presented could not establish that the victim died as a result of a homicide as opposed to suicide. The state--says the court-- simply failed to put forth sufficient evidence that any rational trier of fact could have found the essential elements of criminally negligent homicide beyond a reasonable doubt. The evidence in this case is inconclusive. The court went further to say, that even if the evidence at trial was sufficient to prove homicide, rather than suicide, the evidence was not sufficient to establish the defendant as being the person responsible for the victim’s death. The court concluded that the evidence was insufficient to convict the defendant of criminally negligent homicide.

The Court of Criminal Appeals reversed the judgment of the trial court, vacated the conviction, and dismissed the charge against Larry Ward.

Sixth Circuit Finds No Error In Knoxville Accessory to Carjacking Case

• US. v. ERIC DEWAYNE BOYD

In this Sixth Circuit case from the Eastern District of Tennessee,  Eric Boyd appeals his jury conviction of being an accessory after the fact to a carjacking and misprision of a carjacking. (Misprision of a felony occurs when a person, “having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to a judge or other authority.) 


This case relates to Boyd's part in the help he rendered to Lamaricus Davidson. Davidson was one of the principal defendants convicted in the brutal rape and murder in Knoxville of Christopher Newsom and his girlfriend, Channon Christian. Boyd was not charged with actually committing the crime of carjacking which resulted in the death and serious bodily injury to another person.  Instead, he was charged with helping someone else try to avoid being arrested, prosecuted or punished for that crime.


Statements made between Davidson and Boyd were introduced at Boyd's trial and are among the things he chiefly complains about on appeal. Prior to his trial, Boyd moved to exclude the portions of his videotaped interview in which he discussed the things Davidson told him about the carjacking, rapes, and murders.  Boyd argued that Davidson’s statements were inadmissible hearsay and violated the Confrontation Clause. Boyd’s recounting of Davidson’s statements presents a double hearsay issue, because it constitutes a statement within a statement.  There is no dispute that Boyd’s statements to police were admissible under the admission by a party-opponent exception. The issue is Davidson's statements.


The Sixth Circuit held that Davidson’s statements to Boyd were properly admitted as non-hearsay offered to prove Boyd’s knowledge of the carjacking and murders.  Both charges against Boyd required the Government to prove that he had knowledge of a crime.  And the Court found that as his state of mind is an element of the offense, this evidence is relevant.

Boyd also argues that the admission of Davidson’s statements violated the Sixth Amendment Confrontation Clause because he had no opportunity to confront the witness Davidson. Here, the Court held that the statements are  non-testimonial.  Davidson made the statements to a companion, and a reasonable person in Davidson’s position would not have anticipated the use of the statements in a criminal proceeding like a trial. Lastly, the statements do not trigger the Confrontation Clause because they were offered as non-hearsay.  Sixth Circuit affirms his convictions of 180 months accessory after the fact to a carjacking and 36 months for misprision of a carjacking .

Direct Observation of Drug Test Not a Violation of Fourteenth Amendment, says Sixth Circuit

• NORRIS v. PREMIER INTEGRITY SOLUTIONS,

Norris asserts that conditions of his pretrial release amount to an unreasonable search in violation of the Fourth Amendment when a drug testing company, Premier, required him to provide a urine sample while directly facing a Premier employee. Premier used this “direct observation” method for monitoring the provision of the sample because of the ease with which persons giving a sample could otherwise evade the requirement of supplying a valid one. The district court held that Premier’s method of obtaining the urine sample did not constitute an unreasonable search inviolation of the Fourth Amendment. The Sixth Circuit Affirms.

The dissent notes, "the possibility of cheating should not justify every precaution that the state deems efficacious. By reaching the opposite conclusion, the majority unravels Fourth Amendment protections for pretrial releasees."

Justice Thomas Opinion is a Rebuke to the Ninth Circuit and District Court in this Death Penalty Case

• CULLEN, ACTING WARDEN v. PINHOLSTER

This Justice Thomas opinion is a rebuke to the Ninth Circuit and District Court grant of post conviction relief to a California Death Penalty inmate Scott Pinholster. The Supreme Court essentially found that the California state court process was not flawed enough to be in violation of federal law.


The short facts: In 1982 Scott Pinholster and two others broke into a house at night and brutally beat and stabbed to death two men who interrupted the burglary.  A jury convicted Pinholster of first-degree mur­der, and he was sentenced to death. After the California Supreme Court twice denied Pinholster habeas relief,  a Federal District  Court held an evidentiary hearing and granted Pinholster ha­beas relief  under 28 U. S. C. §2254. The  District Court concluded that Pinholster’s trial counsel had been consti­tutionally ineffective at the penalty phase of trial. The Court of  Appeals for the Ninth Circuit af­firmed.  Consid­ering the new evidence adduced in the District  Court hearing, the Court of Appeals held that  the California Supreme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law.”  §2254(d)(1). The Supreme Court granted certiorari and reversed.


Lack of mitigation evidence presented is the substantial claim behind these ineffective assistance of counsel appeals.  At the penalty phase, counsel did not call a psychiatrist, though they had consulted Dr. John Stalberg at least six  weeks earlier.  Dr. Stalberg noted Pinholster’s “psychopathic personality traits,” diagnosed him with antisocial personality disorder, and concluded that he “was not under the influence of extreme mental or emotional disturbance” at the time of the murders. 


This is a lengthy opinion with several justices sharing in parts but not all of the decision but the majority says that: "Even if the Court  of Appeals might have reached a different conclusion as an initial matter, it was  not an unreasonable application of our precedent for the California Supreme Court to con­clude that Pinholster did not establish prejudice." The Court said that reviewing federal courts are limited to the record of what was raised in and by the state courts under 28 U. S. C. §2254. The Ninth Circuit is Reversed.

Anyone Arrested For A Felony Must Give DNA Sample, Propsed TN Bill

• SENATE BILL 257

This Bill from the Tennessee Senate requires all persons arrested on or after January 1, 2012, for the commission of any felony to have a biological specimen taken for the purpose of DNA analysis. Requires the bureau to destroy the sample and all records of the sample if the charge for which the sample was taken is dismissed or the defendant is acquitted at trial. (S: Ramsey R.; H: Lundberg)


In short, all felony arrests to offer biological specimen for DNA analysis and that is a condition of bond and release: "After the person is arrested, but prior to the person's release from custody on bail or otherwise, the arresting authority shall take the sample using a buccal swab collection kit for DNA testing." How will that impact the time it takes to make bond?

Illegal Vote Gets TN Man 15 Days in Jail, Sentence Upheld by CCA

• STATE v. GREGORY D. ROBERTS

Gregory D. Roberts, was convicted by a Fayette County, TN jury of illegal voting, a felony, for having intentionally voted in a November 2008 election knowing that he was ineligible to vote due to his felony convictions. He was sentenced by the trial court to four years in the Department of Correction, with the sentence suspended to fifteen days in the county jail with the remainder of the time on supervised probation.


The State’s main witness was, the Deputy Administrator of the Election Commission, who identified the following items:a copy of the defendant’s signed voter registration card, dated May 21, 2004; a page from the “voter signature list” from the November 2004 general election, which contained the defendant’s signature and preprinted address and social security number; an application to vote from the November 2008 general election, which contained the defendant’s hand-printed name, address, and signature; and a page from the voter signature list from the November 2008 general election, which contained the defendant’s signature and preprinted address and social security number.


The defendant chose alibi and lost.  Roberts will serve 15 days active jail time and be on supervised probation for 4 years for his illegal vote. His sentence was upheld on appeal in an opinion published March 30, 2011.

No Error Found In Denying Defendant's Request To Show Scar To Jury At Close Range, CCA Says.

• STATE v. NAPOLEON STEPHAN MEREDIT

In this appeal to the CCA Napolean Meredit asks whether the trial court erred in failing to allow the appellant to be viewed from a close distance by the jury and in doing so whether that error forced him to relinquish his Fifth Amendment right not to testify. The Court found no error on appeal.


This was a robbery trial and identity was an issue.  At trial, defense counsel asked that Meredit be allowed to stand “a foot or two” in front of the jury so they could see that he had a distinctive scar on his forehead which was never mentioned by the victims, calling their identification of Meredit as the perpetrator into question. After the trial court denied the request, counselasked that the jury be allowed to come to the front table to see Meredit. When that request was also denied, counsel asked that the Meredit’s face be displayed on a projection screen for the jury. The court refused, stating that the court did not possess the necessary equipment. Finally, counsel asked that the photographs he took of Meredit the previous afternoon be admitted but stated that he might have to testify in order to get the photographs admitted as an exhibit. The court advised that Meredit could put on the desired proof in other ways, such as by standing “in the well”; by having a witness, such as a friend or family member, testify regarding the scar; or by having Meredit testify about his scar. Meredit ultimately chose to testify. On appeal, Meredit argues that the trial court erred by refusing to allow him to get close to the jury, thereby infringing upon his right to present a defense, and that the error forced him to relinquish his right not to testify, violating his Fifth Amendment rights.


In upholding the trial Court's decision, the court followed existing precedent:  “[t]he determination to allow the display of body parts and physical traits to the jury is within the sound discretion of the trial court.” State v. David Lee Richards, No. 03C01-9207-CR-230, 1993 WL 80536, at *3 (Tenn. Crim.
App. at Knoxville, Mar. 23, 1993). 


No Fifth Amendment protections are implicated here where Meredit felt compelled to testify by a previous court ruling. His choice was still free and voluntary.