Thursday, May 31, 2012

Tennessee Supreme Court to revisit "constructive possession" in State v. Robinson

by Jay Perry

It’s not an uncommon situation: late at night a car full of people is pulled over by police.  Inside the car the police find some illicit drugs, but no one claims them.  Who do the drugs belong to?  This is a key question because here in Tennessee it unlawful to manufacture, sell, deliver or possess a controlled substance.  It is not a crime to be in the presence of a controlled substance.  Often in situations like these, where the owner is unknown, the police officer will charge everyone inside the car with possession of the drugs.     

Tennessee law recognizes two kinds of possession: actual and constructive.  Actual possession is simple- everyone understands that if you have something in your hands or on your person you are in actual possession of it.  Constructive possession is trickier, however, and the courts have defined it in different ways.  Commonly, constructive possession requires that the person knowingly have the power and intention to exercise dominion and control over an object.  Simply put, “constructive possession is the ability to reduce an object to actual possession.”  United States v. Martinez, 588 F.2d 495 (5th Cir. 1979).  To illustrate this concept, consider your household possessions.  While at work you are not in actual possession of any of the things at your home.  However, you are in constructive possession because you have both the power and ability to actually and legitimately possess these things.  Going one step further, while watching football at the home of a friend, are you in constructive possession of their television?  Clearly not.  Even though you are in the presence of the television, you do not have the power to take it into actual possession. 

The definition of constructive possession and its application in actual trials remains slippery and difficult for juries to apply.  The Tennessee Supreme Court recently agreed to explore the issue by granting certiorari to hear the defendant’s appeal in the case of Tennessee v. Bobby Lee Robinson.  In the case the defendant was convicted of the possession of more than 300 grams of cocaine with the intent to sell, a Class A felony.  The cocaine had been found in the center console and the floor of a car in which the defendant was a passenger.  However, nothing was directly found on Mr. Robinson, and there was considerable evidence from a search of the co-defendant’s house that the co-defendant had been running a drug selling operation. 

It is likely that the Tennessee Supreme Court agreed to hear the case, a conviction based on constructive possession, to shed some light on this difficult legal concept.  While appellate courts are typically loathe to overturn a jury verdict, such a reversal may be what they are contemplating.  It will be interesting to see what they have to say.  After all, “freedom is a possession of inestimable value.”  

On Extraordinary Appeal, the Tennessee Supreme Court Opines on the Grant of New Trials in the First-Degree Murders of Channon Christian and Christopher Newsom

by Stevie Phillips

On May 24, the Tennessee Supreme Court entered a Rule10 Order addressing the question of whether Judge Jon Kerry Blackwood erred by granting the defendants’ motions for new trials in the first-degree murders of Channon Christian and Christopher Newsom. 

Judge Richard Baumgartner presided over the defendants’ trials but retired after pleading guilty to official misconduct and before ruling on the motions for new trials.  In granting the motions, successor Judge Blackwood found that 1) Judge Baumgartner’s misconduct amounted to structural error and that 2) credibility issues concerning Judge Baumgartner prevented Judge Blackwood from acting as a thirteenth juror. 

As a preliminary matter, Tenn. R. App. P. 10 sets out a narrow avenue for interlocutory review called an extraordinary appeal.  Such appeal may be sought “(1) if the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review, or (2) if necessary for complete determination of the action on appeal.”  The procedure for applying for a Rule 9 interlocutory appeal and a Rule 10 extraordinary appeal is basically the same except that Rule 10 requires only the permission of the appellate court.  On review, Rule 36 permits the appellate court to grant whatever relief is appropriate. 

In discussing the issue of structural error, the Court emphasized that Judge Baumgartner’s misconduct outside the courtroom was a clear violation of the Code of Judicial Conduct and that such behavior undermines public confidence in the judiciary.  Nonetheless, the defendants had not met their burden of demonstrating that his misconduct “fundamentally compromise[d] the trials” as required for a finding of structural error.  Indeed, the Court quoted Judge Blackwood during earlier hearings in which he stated that nothing in the trial transcripts indicated that Judge Baumgartner was impaired.

The Court further opined that under Tenn. R. Crim. P. 25(b)(2), which addresses the authority of a successor judge, Judge Blackwood rightly considered whether he could perform thirteenth-juror review.  The Court determined, however, that he applied an incorrect legal standard by focusing on Judge Baumgartner’s credibility rather than the credibility of the witnesses at trial.  Under the correct standard, which is set out in State v. Brown, 53 S.W.3d 264, 275 (Tenn. Crim. App. 2000), Judge Blackwood may perform thirteenth-juror review so long as witness credibility is not an “overriding issue.”

Ultimately, the Court vacated Judge Blackwood’s finding of structural error and instructed him to apply the correct legal standard when determining on remand whether he can perform thirteenth-juror review.  In sum, the door for new trials is still open. 

Monday, May 28, 2012

Chattanooga National Cemetery-Memorial Day 2012

By 1870, more than 12,800 interments were complete

Yesterday after bike ridding and enjoying some ice cream in the sun, I took my two youngest kids to the Chattanooga National Cemetery to reflect on the meaning of Memorial Day. It was late afternoon and the hallowed grounds were nearly empty except for a handful of visitors.  Boy Scouts had been out earlier planting an American flag at the headstones for each of the thousands of service men and women from America's conflicts--from the Revolutionary War to the present. There are vast rows of graves from the Civil War alone that cover hillsides. As we moved through the columns, I appreciated the solemnity that my children absorbed from this place and the sentiments I believe they will share with another generation. Our shared appreciation for those who serve and those who have served will guide their future.  

The Department of Veteran's Affairs has a historical description of the Chattanooga National Cemetery. Below it is posted in part.
"On Dec. 25, 1863, Maj. Gen. George H. Thomas, “The Rock of Chickamauga," issued General Orders No. 296 creating a national cemetery in commemoration of the Battles of Chattanooga, Nov. 23-27, 1863. Gen. Thomas selected the cemetery site during the assault of his troops that carried Missionary Ridge and brought the campaign to an end. 

The site Thomas selected was approximately 75 acres of a round hill rising with a uniform slope to a height of 100 feet; it faced Missionary Ridge on one side and Lookout Mountain on the other. Gen. Grant established his headquarters on the summit of the hill during the early phase of the four-day battle for Lookout Mountain.

Chaplain Thomas B. Van Horne was placed in charge of the cemetery’s development. In a report of May 14, 1866, the chaplain indicated that one-third of the cemetery site could not be used for burials due to large rock outcroppings. As a result, he suggested a design dictated by the rocky terrain. Much was accomplished during Van Horne’s tenure at the cemetery. Flowering shrubs, evergreens and other trees were planted to replace a portion of the dense forest of oak trees that had been cut down as a part of the battleground. Each interment section consisted of a central site for a monument surrounded by plots for officers with the graves of enlisted personnel arranged in concentric circles around them. In 1867, it was designated Chattanooga National Cemetery.

Matthew Davis, 12,  visits Chattanooga National Cemetery
By 1870, more than 12,800 interments were complete: 8,685 known and 4,189 unknown. The dead included men who fell at the battles of Chickamauga, Missionary Ridge and Lookout Mountain. There were also a number of reinterments from the surrounding area, including Athens, Charleston and locations along the line of Gen. Sherman’s march to Atlanta. A large number of men—1,798 remains—who died at the Battle of Chickamauga were relegated to unknowns during the reinterment process.

In addition to Civil War veterans, there are 78 German prisoners of war buried here. Pursuant to provisions included in the peace treaty between the United States and Germany at the end of World War I, the German government sought the location and status of the gravesites of Germans who died while detained in the United States. An investigation conducted by the War Department found that the largest number of German POWs was interred at Chattanooga National Cemetery. For a short time, thought was given to removing all other German interments to Chattanooga. In the end, however, the German government decided that only 23 remains from Hot Springs National Cemetery should be reinterred here. The German government assumed the cost of disinterment and transportation to Chattanooga, and erected a monument to commemorate the POWs."


Sunday, May 27, 2012

Tennessee Court of Criminal Appeals Affirms Positive Drug Test Means Incarceration

Terry Thomas appeals the revocation of his community corrections sentence in a recent case before the Tennessee Court of Criminal Appeals, claiming that the trial court erred by ordering him back to confinement for a twenty year sentence after a failed drug test. The Court here found no issue with the trial court’s ruling and affirmed it. 

Thomas was charged with possession of more than .5 grams of cocaine in a school zone, intent to sell, possession of drug paraphernalia, carrying a knife with a blade longer than four inches and driving on a suspended license. He pled guilty and was given a 20-year sentence to be served on community corrections. 

In April 2011 a violation warrant was issued for Thomas after he tested positive for additional cocaine use. At the revocation hearing the community corrections officer, April Story, discussed how Thomas tested positive during a drug screen earlier that month. Thomas never asked for a second, confirmation test and Ms. Story admitted that besides the one positive test and occasional spotty attendance at drug treatment classes, Thomas had been in compliance with the rest of the terms of his sentence. 

Thomas claims to have been shocked by the positive test, denying he used cocaine. He said he had been working as an apprentice for an electrician and attended HVAC classes at night. He said friends had used the drug at his home recently but he had not shared in the experience. Thomas did admit to not living with his father as he had said he would and to not attending Bible college as promised. He further admitted to spotty drug treatment attendance but blamed his rigorous work schedule. 

The trial court considered the matter carefully and ultimately decided to revoke his community corrections placement, ordering that he serve the balance of his time in confinement. The court deemed the defendant’s testimony at the revocation hearing “not credible” and said it had to act to protect the health and safety of the citizens of Tennessee. 

The defendant believes the lower court abused its discretion by ordering him back to confinement and turned to the Court of Criminal Appeals for help. The Court mentioned that despite Thomas’ shock at his positive test he never took the next step of asking for a retest or even contesting the result. The Court held that the record supports the trial court’s decision and, as Thomas had been shown plenty of leniency by the judicial system, the Court was not inclined to give Thomas relief. 

To read the full opinion, click here.

Saturday, May 26, 2012

by Lee Davis

Judge Kerry Blackwood
The Tennessee Supreme Court in a rather unusual move has ruled that Judge Baumgartner's terrible misconduct outside the courtroom does not mean that a new trial is absolutely required in the first degree murders of Channon Christian and Christopher Newsome. 

The case will now go back to Knox County trial court and Judge Kerry Blackwood will have to decide if a retrial is necessary following the legal guidelines set forth below by the TN Supreme Court.  Judge Blackwood made it quite clear during the earlier hearing that egregious conduct of Judge Baumgartner during trial required a retrial.


Friday, May 25, 2012

Tennessee’s New Expungement Statute Goes into Effect July 1

By Stevie Phillips

A record of a criminal conviction can have wide-ranging consequences from difficulty securing employment to the loss of the right to vote or own a firearm.  When a conviction is expunged, the record of the conviction is no longer available to the public, and the person receiving the expungement may deny involvement in the underlying offense. 

Currently, under Tennessee Code Annotated section 40-32-101, a person can petition the court for expungement of public records involving a criminal offense, but the record will be expunged only if the charge was dismissed, no true bill was returned by the grand jury, or the person was arrested and released without being charged.  Pursuant to an amendment to this statute that will go into effect on July 1, a person may petition the court for expungement of an actual conviction

The person seeking the expungement must meet certain requirements, and not all offenses are eligible.  A person may not seek expungement if she has been convicted of any other offense at any time.  In addition, at least five years must have elapsed since the person seeking expungement fulfilled the requirements of her sentence.  Finally, the conviction is not eligible for expungement if the sentence imposed was a term of more than three years imprisonment. 

The amendment sets out separate but similar standards for convictions based on offenses committed before and after November 1, 1989.  For post-1989 offenses, there is a list of eligible Class E felonies, including but not limited to theft; fraudulent use of a credit or debit card; worthless checks; car burglary; vandalism; and some drug offenses.

Misdemeanors are also eligible for expungement subject to a long list of exceptions.  Offenses related to domestic violence are, notably, not eligible, including domestic assault, violation of a protective order, and possession of a firearm while a protective order is in effect.  Also excluded are a variety of offenses that involve minor victims, including child abuse, neglect, or endangerment.  Finally, a conviction for (DUI) driving under the influence of an intoxicant is also not eligible for expungement. 

Generally, convictions committed before November 1, 1989, are eligible.  Exceptions exist, however, for inerently dangerous offenses or those that require registration as a sex offender, involve intoxicants and a motor vehicle, involve the sale or distribution of some classes of drugs, or that result in serious bodily injury, harm to a minor, or damages in excess of $25,000. 

The legislature has directed the district attorneys general conference to create a simple form that lay people can use to petition for expungement.  A $350 filing fee is also required.  If the petition is granted, the conviction is deemed to have never occurred, and a copy of the expungement “shall be sufficient proof that the person named in the order is no longer under any disability, disqualification or other adverse consequence resulting from the expunged conviction.”  If the petition is denied, the petitioner may file again after two years. 

A summary of the bill can be found here.

Davis & Hoss attorneys practice criminal law in all courts of Tennessee.

Tennessee Court of Criminal Appeals says stops based on dirty license plates constitutional

Eric Martin was stopped by a police officer for violation of a the law requiring that a car license plate be maintained free from foreign materials and in a clearly legible condition. Martin’s plate was covered in oil or dirt and was illegible. The officer soon discovered that Martin was driving on a revoked license and arrested him.
Martin struck a plea deal with prosecutors and pled guilty to driving on a revoked license, fifth offense. He was sentenced to 11 months and 29 days but the trial court suspended all of the sentence but for the 29 days and placed Martin on probation. Martin has now appealed the section of Tennessee Code dealing with the condition of license plates. The Court of Criminal Appeals held that no question of law was raised by the appeal and it was dismissed.
Martin claims that T.C.A. Section 55-4-110(b) is unconstitutionally vague and overbroad in that fails to establish sufficient guidelines for determining that a tag is free from foreign materials and clearly legible. Martin claims the law as written permits police officers with far too much discretion. The statute specifically states:

Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so to prevent the plate from swinging and at a height of not less than twelve inches (12) from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible. No tinted materials may be placed over a license plate even if the information upon the license plate is not concealed.

The Court held that the officer in this case executed a traffic stop due to an equipment violation, something that the Tennessee Supreme Court has found to be a valid reason to stop a vehicle. As a result, the traffic stop was constitutional. After a brief investigation the officer determined that Martin was driving on a revoked license. The question that Martin now wants reviewed does not concern the revoked license, but the license plate. The Court found that the license plate issue was not dispositive to the case at trial. 

Even if the issue were dispositive the Court stated that both Tennessee state courts and the U.S. Court of Appeals for the Sixth Circuit have found that traffic stops made pursuant to T.C.A. Section 55-4-110(b) are valid and constitutional.  The bottom line is that police can pull over a vehicle if the license is illegible--that is a valid reason to base a police stop.

To read the full opinion, click here.


Tuesday, May 22, 2012

Tennessee Court of Criminal Appeals Says that Post-Conviction Petitions Must Contain Specific Facts, Defendants Can’t Simply Check Boxes

The Petitioner in this case, Michael Deshay Peoples, Jr., was indicted for first-degree felony murder, especially aggravated robbery and one count of aggravated kidnapping. A jury found Peoples guilty as charged and sentenced him to life in prison for felony murder. Other charges were given varying sentences determined at a sentencing hearing. Petitioner filed for post-conviction relief. 

Post conviction is little known outside of criminal law circles, this is the process by which a defendant challenges a conviction.  A defendant may challenge the validity of a conviction on constitutional or the effectiveness of his trial counsel--two common challenges. Post conviction challenges are made after exhausting the well known direct appeals process and may be made sometimes several years after the original conviction. Here the Court of Criminal Appeals found no error and affirmed the dismissal of Peoples’ petition. The discussion below concerns Peoples' post conviction challenge.

Peoples filed his petition for post-conviction relief and alleged, merely by checking boxes on a form--not by specifically detailing facts--that his convictions were based on evidence gained by an unconstitutional search and seizure and that he was denied effective assistance of counsel. The form required that he attach a separate sheet of paper containing facts support his petition, Peoples failed to attach such a document and gave no facts in support of the grounds he alleged.  It is not uncommon for individuals to start with this form an the courts allow it as many petitioners are incarcerated and are proceeding without counsel (pro se) at this late stage in their case.

This petition for post-conviction relief was dismissed because it failed to present a full disclosure of factual grounds in which relief would be appropriate. Tennessee law allows for the dismissal of such complaints when the necessary facts have not been specifically alleged. That’s precisely what took place in this case.

People’s claims he should have been allowed to amend his petition to bring it into compliance. The Court of Criminal Appeals said that Peoples made no attempt to comply with the statutory requirements for his post-conviction relief petition. Merely checking the boxes contained on the form does not comply with the requirement that specific facts be alleged in support of a petitioner’s claims. The Court of Appeals concluded that while lower courts should be more lenient in construing pro se filings, no courts should be required to ignore a failure to provide factual support for claims raised. 

To read the full opinion, click here.

Monday, May 21, 2012

Tennessee Court of Criminal Appeals Affirms Revocation of Probation for Weapons Possession

Nicholas Clower pled guilty to two counts of sale and delivery of less than 0.5 grams of cocaine. Clower was sentenced to six years’ probation for each count, to be served concurrently. Clower was rearrested and his probation revoked and ordered to spend the rest of his sentence in prison. He appealed, arguing that the trial court erred in determining that he possessed a weapon in violation of his probation. The Court of Criminal Appeals agreed with the trial court and affirmed the revocation of probation. 

A probation violation occurred in 2010 and Clower was accused of the manufacture, sale and delivery of cocaine, possession of paraphernalia, unlawful weapon possession, aggravated assault and domestic assault. Quite a long list of misbehavior for a parolee. 

Defendant claimed he wasn’t actually in possession of the gun, that it was merely in his possession. At his revocation hearing the Court held that defendant violated the terms of his probation by failing to report and moving without permission. The other issues include a weapon and that was found in close proximity to Clower and had his fingerprints on it.  The Court decided that this was sufficient for a preponderance of the evidence to find that possession of a handgun occurred, sufficient for a violation. 

The defendant asserted that the trial court erred by saying that he possessed a handgun. The Court of Criminal Appeals said that the State must only prove a violation by a preponderance of the evidence. Assuming there’s been no abuse of discretion the trial court’s decision will not be disturbed. 

The Appeals Court found that Clower was in close proximity to the weapon, his fingerprints were on the weapon and he initially admitted to holding the weapon. This was deemed sufficient information on which to base a decision, thus the trial court did not abuse its discretion. Furthermore, the other violations that were found to have occurred and would permit revocation regardless of the weapon possession issue.

To read the full opinion, click here

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Saturday, May 19, 2012

Sixth Circuit Court of Appeals: Is Evading Arrest a Violent Felony?

This case concerns whether a defendant’s prior conviction for evading arrest is a “violent felony” for purposes of the Armed Career Criminal Act (ACCA). If it is the consequences for a subsequent federal conviction are large. Despite having previously ruled that evading arrest is a violent felony and then having the Supreme Court vacate the Sixth Circuit’s judgment, the Court ruled again that under Tennessee law it is a violent felony.

In this case, defendant David Earl Doyle was found by police in 2007 parked behind a church sleeping in a running vehicle. Deputies saw a pistol in the driver’s side door and a shotgun lying between the driver and his sleeping female companion. The officers removed the weapons before arresting the two on various charges. A few weeks later a federal grand jury indicted Doyle and charged him as a felon in possession of a firearm, alterations to the barrel of a firearm (sawing off a shotgun), and possession of an unregistered firearm. Doyle pled guilty.

At sentencing the district court ruled Doyle was an armed career criminal (ACCA) under the guidelines because of his three prior convictions that qualified him for an enhanced sentence: aggravated assault, burglary and a Class E felony of evading arrest. The district court sentenced Doyle to 180 months on count one and 120 months for counts two and three, to run concurrently. 

Doyle agrees that his previous convictions for aggravated assault and burglary qualify as violent felonies under the ACCA. The issue is whether evading arrest qualifies as a violent felony. 

Under the ACCA a violent felony is “any crime punishable by imprisonment for a term exceeding one year” that has as an element the use of physical force against another  “or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Class E felony evading arrest can only be considered a violent felony under this catchall provision. 

The Sixth Circuit previously address just such a question in U.S. v. Rogers, holding that in Tennessee a Class E felony evading arrest is a “crime of violence” under the guidelines.  While Doyle claims Rogers was wrongly decided he does not attempt to distinguish a case that is otherwise identical to the fact pattern present here. Though Rogers was remanded by the Supreme Court no new opinion has been issued on the case and therefore the Supreme Court’s ruling has an undetermined impact.
The Court’s majority founds that the portion of the ACCA discussing “serious potential risk of physical injury to another” applies in this case. The Court says such potential risks to officers are always present in vehicular-flight cases. Such risk is inherent in such situations as flight is in defiance of police instructions and the vehicles can be used in a way to cause serious potential risks of injury to others. 

Despite what the Supreme Court wrote in Rogers, the Sixth Circuit has decided that nothing should cause a reconsideration of their holding in Rogers and that Class E felony evading arrest under Tennessee law is a violent felony under the ACCA.

To read the full opinion, click here.
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Friday, May 18, 2012

Tennessee Court of Criminal Appeals: Probation Revocation Fine if Not Done Arbitrarily

by Lee Davis

Judge Rebecca Stern
(Times-Free Press Photo)
Defendant, Garry Lee Nance appealed a revocation of his probation and order that he serve the remainder of his time in prison. The State disagreed, asking that Nance be kept in prison. The Tennessee Court of Criminal Appeals sided with the State and affirmed Judge Rebecca Stern's ruling.

In May of 2008, the defendant pled guilty to aggravated burglary, vandalism and theft of property in Criminal Court in Hamilton County. Defendant received a four-year sentence with 11 months and 29 days to be served in confinement and the rest on probation.

In August 2011, a probation violation was found to have occurred after Nance was arrested in Roane County, Tennessee for theft and possession of drug paraphernalia. Moreover, he was found to have failed to work at a lawful occupation, failed to inform his probation officer about a change of residence, failed to pay court costs and restitution and was generally uncooperative once released from prison. 

A hearing was held to determine whether defendant’s probation would be revoked. Nance’s probation officer, Mindy White, testified that Nance had been as difficult as described. His employment was “spotty at best” and she had a very hard time keeping track of him, having had three instances where she went to check in on Nance only to find out he had moved. 

For his part, Nance admitted to a recent pill addiction but claimed always to have kept Ms. White informed as to his whereabouts. As far as his late or nonexistent payments Nance claims he paid what he could pay when he could pay it. 

The Court was unconvinced and revoked Nance’s probation and sentenced him to serve the remainder of his time in custody. Nance now contends that this decision was in error because the court did not consider the principles of sentencing. Nance further argues the court erred by not considering other options besides revocation.

The Court of Criminal Appeals stated that a trial court may revoke probation upon finding by a preponderance of the evidence that the defendant violated the terms of his release. A trial court doesn’t need proof beyond a reasonable doubt, only evidence showing that a conscientious judgment was made. 

Nance himself admitted to having been convicted of new crimes and to engaging in illegal drug use. He admitted to failing to pay restitution and to committing a number of technical violations regarding his probation. The trial court had no obligation to consider the principles of sentencing or other options before making its decision to revoke probation.

The Court of Criminal Appeals held that because there was no evidence that the trial court decided the matter arbitrarily, the revocation order should stand.

To read the full opinion, click here

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Thursday, May 17, 2012

Sixth Circuit Court of Appeals: Sentence can be revisited if ‘based on’ revised crack cocaine guidelines

by Lee Davis
FSA: challenges powder v. crack

This appeal arises from the conviction of Michael Jackson after pleading guilty in June 2009 to one count of intent to distribute more than five grams of cocaine. Jackson was found to be a Career Offender. The district court delayed his sentencing for more than a year, anticipating Congress was about to pass a new law regarding crack cocaine sentencing guidelines. The court felt it could not wait any longer and sentenced Jackson on July 16, 2010.

Jackson filed a timely notice of appeal. The Fair Sentencing Act was passed almost immediately thereafter, on August 3, 2010. At Jackson’s sentencing, the district court discussed at length the terrible disparity between the crack and powder cocaine sentencing guidelines. The district court clearly wanted Jackson to have a more fair sentence but felt its hands were tied. The district court ultimately decided to grant a 38-month downward variance from the Career Offender guideline.

Jackson seeks a remand to the district court for re-sentencing in light of the recent reduction in crack cocaine sentences. The government contends no reduction should be allowed given that his sentence was based on the Career Offender guidelines and not the crack cocaine guidelines. The Sixth Circuit recognized that Jackson’s criminal history meant that the Career Offender guidelines had to be considered but held that the district court should have the opportunity to revisit the sentence in light of new crack cocaine sentencing guidelines.

What appears to have happened is that the district court varied downward from the Career Offender guideline to a sentence more in lie with the what it believed was reasonable given the crack versus powder cocaine disparity. The Sixth Circuit says it believes had the revised guidelines been in place, it is clear the district court would have sentenced Jackson to a reduced sentence. Because the district court found Jackson to be a Career Offender and then sentenced him below the range for Career Offenders, noting a disagreement with crack guidelines, it is clear to the Sixth Circuit that the sentence was “based on” the crack guidelines as much as the Career Offender guidelines.

The Court further discussed the instruction in Freeman v. United States to:

… isolate whatever marginal effect the since-rejected Guideline had on the defendant’s sentence. Working backwards from this purpose, §3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence.

The majority held that the crack cocaine guidelines were clearly a relevant part of the analytic framework used by the district court to determine Jackson’s sentence. The Sixth Circuit was clear to take no position regarding whether Jackson’s sentence should be changed, but remanded the decision to the district court to consider the retroactive crack cocaine guidelines. 

To read the full opinion, click here.

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Federal Judge Grants Class-Action Certification in NYC 4th Amendment Violation Suit

New York City
by Jay A. Perry

A Federal Judge in New York recently granted class-action status to potentially thousands of plaintiffs in a suit involving alleged 4th Amendment violations by the New York City Police Department.  The suit claims that the New York City Police engaged in a policy of committing rampant unlawful “Terry stops” or short stops and frisks of people on the streets of the city. 
The Fourth Amendment prohibits “unreasonable searches and seizures” and in Terry v. Ohio, the Supreme Court ruled that the prohibition is not violated when the police stop a suspect on the street and frisk them without probable cause to arrest.  However, the Court said that before making such a stop the police need “reasonable suspicion” that the suspect is committing (or is about to commit) a crime.  Furthermore, the police need reasonable suspicion that the suspect is armed or dangerous to take the further step of frisking for weapons.  Reasonable suspicion is more than just a “hunch” and needs to be based on “specific and articulable facts”.
The Plaintiffs claim that the police department of New York City disproportionately stop and frisk minority people and have not reformed their policies as required by a settlement in 2003 of a similar suit.  The Court in granting the class certification noted that between 2004 and 2009 there were over 2.8 million Terry stops.  Over half of those stops were of Black people and thirty percent were of Latinos.  Only ten percent of the stops were of Whites.  The Court also recognized the important societal interest in the case and noted that the plaintiffs are not seeking monetary damages but only a declarative judgment and injunction. 
It will be interesting to follow this case and see how many plaintiffs come forward to take part.  In over 2.8 million stops there must be thousands (if not hundreds of thousands) of people involved.  If the Plaintiffs allegations are true then a good number of those people had their constitutional rights violated.  While a “stop and frisk” does not take a long time it surely has consequence to the person detained and frisked without good cause.  As the Supreme Court in Terry noted, being stop and frisked “must surely be an annoying, frightening, and perhaps humiliating experience.”
For more on the alleged abuses by the New York City Police Department, see This American Life #414 “Right to Remain Silent”.  The episode contains the story of a NYC police officer who secretly recorded himself and fellow officers for 17 months capturing evidence of the type of abuses alleged by the Plaintiffs in the suit.           

Wednesday, May 16, 2012

Judge Baumgartner Saga Continues

Richard Baumgartner leaves Federal Court
by Lee Davis

As we’ve discussed in previous posts here and here, the case of former Knox County Criminal Court Judge Richard Baumgartner is a sad saga.  The decline of the former judge continued Tuesday as Baumgartner walked into a federal courtroom in shackles, standing accused of covering up the drug crimes of his former mistress while presiding over the Drug Court he helped create.

Baumgartner said little during his appearance before U.S. Magistrate Judge Clifford Shirley. The seven-count indictment included allegations that he helped conceal the crimes of Deena Castleman, his one time mistress, starting as early as June 2009. While popping pills supplied to him by Castleman, Baumgartner presided over one of the most high-profile Knoxville criminal cases in recent memory – the slayings of Channon Christian and Christopher Newsom.

As discussed previously, the convictions of those involved in the gruesome case have since been overturned due to Baumgartner’s bad behavior. So far convictions in four other cases have also been overturned.

In the recent indictment, Assistant U.S. Attorney David Lewen argues that Baumgartner committed crimes of misprision of a felony when he intervened on Castleman’s behalf to cover up her involvement in a prescription drug ring. Baumgartner did so by vouching for Castleman before an Anderson County judge, pleading in her case for leniency. Baumgartner further lobbied Knox County General Sessions Court Judge Andrew Jackson VI and an assistant district attorney after a series of failed drug tests, all in an attempt to get a reprieve for Castleman.

In a later episode in the fall of 2009, Baumgartner lied to the staff at a local hospital to gain entry to Castleman’s room, claiming he was her attorney when he was actually there to do drugs and have sex with the woman. Each of the seven counts carries a maximum three year prison sentence and will likely result in the loss of Baumgartner’s state pension.

At the hearing this week Lewen claimed that Baumgartner is still using prescription drugs, citing prescriptions registered with various pharmacies in Knoxville as recently as March. Baumgartner’s attorney, Don Bosch, countered by claiming that the judge had a lung biopsy and that the drugs were legally prescribed.

The Court released Baumgartner pending a July trial on the condition that he undergoes a drug and alcohol assessment. Though many are eager to see Baumgartner punished for his tragic misbehavior, it will likely be summer or later until we find out how this growing mess resolves itself.

Read: “Former Judge Richard Baumgartner faces 7 federal counts of failing to report felonious activity,” by Jamie Satterfield, published at

Shocking Allegations Concerning Behavior of Knoxville Judge in Christian/Newsom Slaying
Retrial for Christian/Newsom Slayings Prompts Outcry to TN Supreme Court

Lee Davis represents clients in federal criminal cases across the country.

Monday, May 14, 2012

Tennessee Court of Criminal Appeals Refuses to Overturn Murder Conviction Based on Self-Defense

In State of Tennessee v. Nicholas Short, a Nashville man was convicted of one count of premeditated  first-degree murder and one count of second-degree murder--both convictions stem from a single homicide committed during an aggravated robbery. The trial court merged the convictions and sentenced Short to life imprisonment. The sole issue on appeal is whether the evidence presented is sufficient to overturn the convictions based on Short's claim of self-defense. The Court of Criminal Appeals denied Short's claim.

Short was convicted from charges in conjunction with an especially aggravated robbery. Both murder counts arose from the death of Tyrone Davis, the victim. Short admitted to shooting and killing Davis, but insisted that it was done in self-defense. Davis supposedly rushed at Short and, in an attempt to resist, Short began shooting wildly in the air. Three witnesses testified to Short shooting Davis in the back, refuting his claim. 

Doctor Sandra Thomas, a doctor in the Davidson County Medical Examiner’s Office testified that she reviewed the report and body diagram after the autopsy was performed. According to Thomas, one of the gunshot wounds was consistent with a victim being shot while on his knees by a person standing behind him. There were further abrasions on the victims’ body, his forehead, the side of his nose and the heel of his right hand that indicated the victim had fallen on the ground. There were also raw abrasions on both knees, consistent with crawling. 

Short argues the evidence presented in insufficient to support a verdict of guilt beyond a reasonable doubt. The Court disagreed. The Court said that when viewing the evidence in light most favorable to the State, the result clearly demonstrated premeditation and intent, the necessary components for a first-degree murder conviction. 

The victim appeared to be attempting to escape when he was shot in the back by Short. Telephone calls from prison revealed that the killing was the result of a prior arrangement with other criminal friends. Finally, Short admitted that the victim did not have a weapon. The Court held that by convicting Short of first-degree murder the jury clearly rejected his version of events. The Court refused to second-guess the jury’s decision and said that the facts surrounding the event were sufficient to infer that the killing was premeditated and intentional. 

Foe the full opinion, click here.

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Friday, May 11, 2012

Tennessee Court of Criminal Appeals upholds Conviction for DUI: no requirement for police to give blood or breath test.

In State of Tennessee v. Gail Lynn Padgett, a Knox County woman was convicted of driving under the influence of an intoxicant (her fourth conviction), driving on a revoked license and two counts of disorderly conduct. The trial court sentenced Padgett to one year in jail with 150 days served in conferment and the rest on probation. Her license was revoked for five years and she was required to attend DUI school. 

Padgett has appealed, arguing that the evidence is insufficient to sustain a conviction, the trial court erred in denying her Motion to Dismiss for the State’s failure to preserve evidence and for denying her Motion to Suppress evidence of her actions to police due to lack of the probable cause necessary to have arrested her in the first place. The State Court of Criminal Appeals rejected Padgett’s claims and affirmed the ruling of the trial court.

Padgett first filed a Motion to Suppress arguing that video evidence attained by the arresting officer’s police car should be suppressed due to the lack of probable cause in arresting her. The facts showed the following: At a little after 8 in the morning on May 28, 2008, Officer James Wilson got a call about an accident. He arrived and testified that before exiting his vehicle he turned on the microphone and video recorder in his police cruiser. 

While speaking to those at the scene, Wilson hit a car passing by her driveway. Padgett started yelling that she was not in the wrong. Wilson allegedly observed Padgett stumbling and detected a very strong odor of alcohol on her breath. Based on this behavior he placed her under arrest. Because of Padgett’s erratic behavior he was unable to perform any field sobriety tests. Wilson later swore out a warrant for her arrest noting her slurred speech, glassy bloodshot eyes and her unsteadiness while walking. Wilson admits to not listing the smell of alcohol and explained that he must have just forgotten to write it down. The trial court agreed that Officer Wilson had probable cause to arrest Padgett for disorderly conduct, not DUI, and denied Padgett’s Motion to Suppress.

Padgett then filed a Motion to Dismiss due to lack of evidence. No blood alcohol test was ever performed nor was a Breathalyzer test administered. Wilson claims this was because of Padgett’s wild behavior following her arrest. The trial court again denied Padgett’s Motion and decided to proceed. 

At trial much the same evidence was discussed. The video and audio recordings were also admitted into evidence and seemed to support much of what Officer Wilson had testified to. 

On appeal, Padgett contends that because no field sobriety tests were performed there can be no evidence to support a DUI conviction. The State counters by saying that other evidence supports such a conviction. The Court of Criminal Appeals agreed with the state, citing the three witnesses who testified to Padgett’s appearance and behavior that day. Such evidence is adequate for a reasonable trier of fact to conclude that she was under the influence and a field sobriety test is not required to support a DUI conviction.

With regard to Padgett’s Motion to Dismiss, the Court of Criminal Appeals says that there is no duty by an officer to administer a blood alcohol test. The only requirement is that if such a test is not administered, then that failure shall be “admissible in evidence in a criminal proceeding.” T.C.A. Section 55-10-407(b). Here that hurdle was cleared as the jury was fully informed during both direct and cross-examination that Wilson did not request that Padgett submit to a blood alcohol test. 

Turning to the Motion to Suppress, the Court says that Wilson had sufficient probable cause to justify an arrest for disorderly conduct and that Wilson did not have to explain to Padgett that she was being arrested for such a charge in order to make the arrest valid. The Court went further in saying that Wilson did have probable cause to arrest Padgett for DUI. Under T.C.A. Section 40-7-103(a)(6), Wilson personally observed Padgett’s behavior and actions and believed she was intoxicated, thus granting him the probable cause necessary to arrest Padgett for DUI.

For the full opinion, click here.


Sunday, May 6, 2012

Fen-phen scamming attorneys get no relief from the 6th Circuit

A federal appeals court has affirmed the convictions of lawyers William Gallion and Shirley Cunningham Jr. for running a “massive scheme to defraud their clients” in a major Kentucky fen-phen case. The two prominent plaintiff's lawyers were convicted of wire fraud for stealing the bulk of a 2001 settlement from 440 clients, who ended up receiving only about 37% of the $200 million that the manufacturer of fen-phen, American Home Products, agreed to pay for their injuries. The once popular diet drug was shown to cause heart valve damage and was the subject of many lawsuits following its having been pulled from the market.

The 6th Circuit Court of Appeals held while there were minor flaws in their 2009 trial, all were harmless given the extent of their crimes. The attorneys were convicted of scamming clients by taking nearly two-thirds of a $200 million settlement. 

The Court refused to believe that the two attorneys were simply in over their heads, deciding instead that they had actively lied to clients and the court, engaged in destruction of documents and shifted money between a multitude of accounts all to avoid detection. 

The panel affirmed an order that required the two lawyers pay $127.6 million to their victims as restitution. 

One of the defendant’s lawyer claimed that while he’s disappointed with the ultimate ruling he’s not done fighting for his client. He said he would now be asking the full court to reconsider the ruling and if that fails, ask that the US Supreme Court hear the case. 

Kerry Harvey, the U.S. attorney for the Eastern District of Kentucky, who was responsible for prosecuting the two said the ruling was gratifying because “it brings us one step closer to securing justice for the many victims.” Harvey said the government had been collecting assets but was legally not permitted to distribute them while the case was on appeal. Angela Ford, an attorney representing most of the victims of Gallion’s and Cunningham’s fraud, said, “It has been a long fight, and this is a tremendous milestone.”

Gallion, 61, who is serving 25 years at a federal prison camp in Oakdale, La., is not eligible for release until Dec. 8, 2029, while Cunningham, 57, who is serving 20 years at a camp in Yazoo, Miss., has a release date of Aug. 15, 2025.


Thursday, May 3, 2012

RICO gang legislation passes Tennessee House

Rep. Vince Dean (East Ridge, TN)
by Lee Davis

Some believe the recently passed gang legislation is a substantive bill and the bill’s sponsor, Representative Vince Dean (R-East Ridge), puts it this way: “It’s kind of like going from a screwdriver to an electric drill.” 

Others question the wisdom of attacking street crime with a complicated statute that has had limited success in the federal criminal justice system. It is hard enough to get a violent gang related case to trial now, with jury trial dates routinely more than a year after the crime.  Adding this legislation will slow the system down. RICO cases are labor intensive, expensive and require significantly more resources to investigate, prosecute and ultimately defend in court. That is the opinion of several veteran trial attorneys--including former prosecutors and defense attorneys. 

Other critics of the legislation point out that there are already laws on the books for every violent crime that the new law purports to target. And lastly, the US Attorney's office has the resources, the experience and the joint cooperation of federal and local law enforcement to prosecute RICO cases with existing federal laws. 

Some law enforcement officers believe that Tennessee’s version of the federal RICO (Racketeer-Influenced-Corrupt-Organizations) Act could make a dent in gang activity by defining the gangs themselves as criminal enterprises, and making membership a crime in itself.

Chattanooga law enforcement is divided according to a report in the Times-Free Press, Chattanooga Police Sgt. Todd Royval oversees the Crime Suppression Unit, which tracks gang activity. He said he’s not sure a state RICO statute is needed to address the gang problem in the city.
Federal RICO laws should be enough, he said. “A RICO case is a very labor intensive and expensive case to investigate, and we would have to involve other state and federal agencies for assistance,” Royval said. “It would be easier and more cost effective to use the current federal statute for RICO. A good RICO case would probably include defendants from outside of Hamilton County and possibly into other states, so I would be inclined to start a federal RICO case instead of a state RICO case.” 
Chattanooga Police Capt. Edwin McPherson oversees the special investigations unit, which includes Royval’s group. He said the law is needed. “I think that it will work for us in certain situations for people deserving of a stiffer penalty for the crimes they are committing,” he said. “I really think that it is something we can use as leverage on gang bangers who want to go out here and commit crimes as a group or organization.”
The new bill would permit police and prosecutors to charge anyone found to be a gang member or gang leader. This is given a very broad definition and includes anyone who commits, coerces, conspires with or hires somebody else to commit violent crimes such as murder, rape and assault; or profits from the proceeds of burglaries, drug sales, or gun sales.

“Without RICO, certain felony convictions would draw prison sentences of eight to 12 years,” says Boyd Patterson, a former-prosecutor turned gangs initiative co-czar in Chattanooga. “With RICO, the penalty jumps to 12 to 20 years,” a substantial difference if you’re on the wrong end of the new sentencing structure.

Federal RICO cases often take three to five years to make and to prosecute and can be very expensive and laborious processes. Patterson says that “We may have two or three cases against two or three folks. If our goal is a dozen gang members, it’s gonna take that much longer.” The new legislation will mean that when the police do bring charges they can level them against the entire gang, rather than putting people away piecemeal.

Co-sponsor Senator Bo Watson (R-Hixson) says legislators objected to toughening penalties for repeat offenders. “It’s a matter of cost,” he says. “A greater cost of incarceration, and that draws the fiscal note up to where that really wasn’t a piece of legislation we could move this year.”

Supporters have estimated that the cost of longer sentences will already add $109,000 to the yearly corrections budget. Had the backers pushed for even more stringent penalties Senator Watson says the total cost of incarceration could have increased by $1.4 million.

Governor Haslam is expected to sign the bill; and, it will become law on July 1.

-“Police Chief: ‘There’s a lot more bite to this law’,” by Gordon Boyd, published at

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