Friday, March 29, 2013

Sixth Circuit Vacates Sentencing Enhancement Based On Defendant False Identification

This recent Sixth Circuit case has it roots in a 1999 conviction of Kwame Williams, a Trinidadian who was arrested in New York on a gun charge and deported. Williams eventually reentered the country illegally and, in 2002, was arrested for kidnapping, robbery and assault but failed to appear for any court proceedings.

At that point, Williams moved to Nashville and changed his name to Arnold Fordham. The DEA began investigating Williams for distributing oxycodone, but believed he was Fordham. Eventually they searched Williams’ house and found 1,000 oxycodone pills along with other illegal drugs. Williams told the agents that his name was Fordham and admitted to dealing drugs and to possessing a weapon.

It took two moths after his initial court appearance for Williams to reveal his real name. At that point he pleaded guilty to possession with intent to distribute oxycodone and prosecutors argued that he should be sentenced with a two-level enhancement for obstructing justice by lying about his identity. The court applied the sentencing enhancement and ordered Williams to 87 months in prison.

The Sixth Circuit heard the case and pointed out that the law says that a defendant’s offense level must be increased by two points if the defendant “willfully obstructed or impeded… the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” An example contained in the rule included providing materially false information to a judge, the basis used to enhance the sentence in this case.

The lower court argued that a defendant’s identity is always material to a criminal proceeding and thus an enhancement was appropriate. The Sixth Circuit had to decide whether it was actually material to any of the issues decided by the judge. There were two issues decided on by the judge: whether to appoint counsel for Williams based on his financial affidavit and whether to decide the DEA agents had probable cause to arrest Williams for possessing oxycodone.

The Sixth Circuit said that with regard to the first issue, the government never proved that any of Williams’ financial information was false and that for all purposes, Fordham was just as indigent as Williams. The lie about identity cannot then be shown to have affected the judge’s decision with regard to appointing counsel for Williams. The same thing with regard to the second issue which was based on testimony by DEA agents and had nothing to do with Williams’ identification as Fordham.

As result, the Sixth Circuit reversed the district court’s sentencing enhancement, vacated Williams’ sentence and remanded the case for resentencing.

To read the full opinion, click here.

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Sunday, March 24, 2013

Tennessee Supreme Court Excuses Prisoner's Failure to Meet Post-Conviction Deadline

By Stevie Phillips

In 2003, prisoner Artis Whitehead tried to rob BB King's Blues Club on Beale Street in downtown Memphis.  He was convicted of a variety of offenses surrounding the incident.  The TN appellate courts affirmed his convictions, and the US Supreme Court declined to hear his case.  Up to that point, he had an attorney.

Afterwards and without a lawyer, Mr. Whitehead filed a petition for post-conviction relief in the trial court.  That court dismissed the petition because it was filed late.  The Court of Criminal Appeals remanded the case for a hearing, but the trial court again declined to excuse Mr. Whitehead's late filing.  This time on appeal, the TN Supreme Court issued a divided opinion.

Both the majority and dissent analyzed this case under Holland v. Florida, 130 S. Ct. 2549 (2010) and Maples v. Thomas, 132 S. Ct. 912 (2012), two US Supreme Court cases holding, essentially, that a prisoner's late filing should be excused if 1) he was diligently pursing his rights and some extraordinary circumstance prevented him from filing his petition on time and 2) the prisoner’s attorney abandoned the prisoner or acted against the prisoner’s interests.

J. Koch, writing for the majority, held that Mr. Whitehead's attorney effectively abandoned him, which created an exceptional circumstance that prevented him from filing his petition on time. Specifically, Mr. Whitehead's lawyer delayed in informing him that the US Supreme Court had declined to hear his case and in forwarding his case files and also gave Mr. Whitehead an incorrect filing deadline.

J. Holder authored a dissent in which she distinguished these facts from Holland and Maples:
"The petitioners in Holland and Maples were not only the victims of attorney mistakes and communication failures, but each petitioner also erroneously believed his attorney was pursuing his legal matter on his behalf."  In J. Holder's view, the evidence did not preponderate against the trial court's finding that "Mr. Whitehead never operated under the misconception that the pursuit of post-conviction relief was not his responsibility or that his former appellate attorney was pursuing his post-conviction claim." 

Read J. Koch's majority opinion and J. Holder's dissent.

Friday, March 22, 2013

Sixth Circuit Hears Ineffective Assistance of Counsel Appeal From Lillelid Murderer

The recently decided Sixth Circuit case of Howell v. Hodge began in 1997 when Karen Howell and five of her friends set off from Pikeville, Kentucky to New Orleans. At the time, Howell was only 17-years-old, another of the group was 14 and the rest were over 18. The group of friends brought two guns with them on their journey and discussed forcibly trading in their broken down car for a newer one along the way.

While stopped in Greeneville, Tennessee, an opportunity to steal a better car presented itself. A Jehovah’s Witness, Vidar Lillelid, came up to Howell and her friends and began to share his religious views. One of Howell’s compatriots brandished a gun and walked Lillelid back to his family’s van despite Mr. Lillelid’s offer of his wallet and his keys. The group ended up ordering Lillelid to pull over on a secluded stretch of road, at which point, all four members of the family were shot multiple times. The only person to survive was the Lillelid’s two-year-old son who lost an eye in the attack.

Howell and her group attempted to flee to Mexico but were caught in Arizona after failing to cross the border. Howell and her friends still had several of the Lillelid’s possessions when they were apprehended.

Prosecutors in Tennessee then filed charges and initially sought the death penalty. In exchange for dropping the death penalty charges, the group pled guilty to the crime, with Howell and the other minor pleading guilty in adult court. Howell was eventually sentenced to three life sentences to be served consecutively without the possibility of parole.

Howell then filed a petition for relief, claiming that she received ineffective assistance of counsel. She said that her attorney at the time should have insisted that she take a psychological evaluation to determine if her mental state required that she be committed to a psychiatric institution, which would have prevented her being transferred to adult court. The case made its way to the Tennessee Supreme Court, which found that although the attorney had indeed been deficient, Howell was not able to show prejudice.

The Sixth Circuit agreed to hear the case and laid out that for an ineffective assistance of counsel claim to succeed under the Sixth and Fourteenth Amendments, a claimant must show that deficient performance resulted in prejudice. The Sixth Circuit agreed with lower courts that there were reasonable grounds to believe Howell was not “committable” at the time of her trial. Thus, her attorney’s lack of action to get her a psychological evaluation does not prove prejudice. Moreover, the Sixth Circuit says that for a claimant to make such an ineffective assistance claim, he or she must establish that, but for their counsel’s ineffectiveness, he or she would not have pled guilty and would instead have gone to trial. Howell never says that, just that she might have been committed to an institution for a brief period of time for evaluation.

The Sixth Circuit ultimately affirmed the conviction and the ruling of the Tennessee Supreme Court. The Court found that the test for ineffective assistance of counsel is a demanding one that requires claimants prove that the likelihood of a different result is substantial, not just conceivable.

To read the full opinion, click here.

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By Lee Davis

Monday, March 18, 2013

Trial Begins in NYC as Plaintiffs Attack Police Stop-and-Frisk Practices

 By Jay Perry

            The trial of a class action suit challenging the “stop and frisk” procedures of the New York Police Department began today in a New York District Court. The case, Floyd v. City of New York, was discussed here earlier when the Court ruled that the case could proceed as a class action suit, noting that the alleged stops could demonstrate a “deeply troubling apathy toward New Yorkers’ most fundamental constitutional rights.”
             The plaintiffs are possibly going to call up to 100 witnesses, some to provide first-hand accounts of being frisked and questioned without reasonable suspicion. The lead plaintiff, a medical student, testified today about two stops, both of which left him “frustrated, humiliated.” After the second one, which took place outside his residence he stated that, “I felt that I was being told I shouldn’t leave my home.” The plaintiffs claim that the stops are based on race and not bona fide suspicion of actual crime taking place.  Attorneys for the city today disputed that claim, noting that most crime victims are racial minorities and that “crime drives where police officers go, not race.” The city also claims that the decrease in crime has been a direct result of this more active police presence on the streets. It seems undisputed that more stops and frisks have been taking place. The New York Civil Liberties Union states that such stops rose from 97,296 in 2002 to 533,042 in 2012. From the stops last year, approximately 89 percent resulted in no arrest or ticket. 

         This trial bears attention because it highlights the increased use in many cities of direct police interventions in noncriminal behavior. The question remains whether this type of police work is truly beneficial to public safety and moreover whether society is willing to pay the cost of a decrease in liberty.

Sixth Circuit Overules Judge For 99% Sentencing Reduction

Michael Peppel, a former CEO of MCSi Inc., who pleaded guilty to a scheme that ultimately led to the bankruptcy of his company, was facing 10 years in prison for his criminal activity. The trial court decided that seven days was long enough-- the Sixth Circuit vehemently disagreed.

The Sixth Circuit Court of Appeals ordered that Peppel be resentenced for his guilty plea to conspiracy to commit fraud, false certification of a financial report and money laundering. The Sixth Circuit said that a district judge in Cincinnati abused her discretion by handing down an “unreasonably low” sentence of seven days.

Peppel had been accused of working with his CFO to inflate the results of some sham transactions with a fake company to pump up the company’s numbers. During the same time Peppel was accused of unloading company stock and making millions in profits as share prices rose due to the financial trickery. Not long after he launched his scheme, Peppel’s company went bankrupt and 1,300 people were out of work.

Prosecutors pushed for severe punishment as a deterrent to others and asked that he be given between 97 and 121 months in prison. According to federal guidelines this length was recommended, though not technically required.

The judge who heard the cases said that the years since the indictment had been punishing enough for Peppel and that she felt sorry for him because he had a family to support and a brother with multiple sclerosis. The judge continued saying that she believed Peppel was a “remarkably good man” and that his mistakes should not define him. The judge concluded that it would be a waste of taxpayers’ money to incarcerate someone who has the ability to add so much to the country’s economy. He was sentenced to a week in jail, a $5 million fine and three years of supervised release.

The Sixth Circuit concluded that the district court judge was wrong to rely on unremarkable aspects of Peppel’s life to justify a 99% reduction in the recommended prison sentence. The Sixth Circuit opinion said that nothing in the record showed that Peppel had any more extraordinary support or family obligations than any other defendant who faces a possible criminal sentence. The case was remanded for resentencing.

To read the full opinion, click here.

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Saturday, March 16, 2013

Sixth Circuit Rules On Case About Calculating Child Pornography Restitution

At the end of last month, the Sixth Circuit Court of Appeals ruled on two unrelated child pornography cases, U.S. v. Gamble and U.S. v. Crawford. In both cases the lower courts ordered the defendants to pay $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed. The issue here was whether the defendants were personally responsible for causing that much in damages to Vicky.

Previously the Sixth Circuit dealt with the issue of restitution in child pornography cases and said that the government was required to demonstrate that losses to a victim had been proximately caused by the actions of the defendant.

The district courts said that this rule is different in extreme cases where defendants viewed images because of the humiliation suffered by the victim, knowing that her mistreatment was being viewed by others. The district courts said that in such cases each defendant is jointly and severally liable for the entire amount of restitution owed to the victim. The district courts based this on 18 U.S.C. Section 2259 which says that restitution is required in child exploitation cases for “the full amount of the victim’s losses.”

The Sixth Circuit disagreed with this assessment and instead decided that the harm should be divided among the perpetrators. One solution that the Sixth Circuit came up with was to determine a victim’s total losses and then divided those losses by the number of defendants convicted of possessing the victim’s image. The Court noted that in such cases it’s possible that defendants could argue about the existence of a larger pool of responsible parties. If that happens, the Sixth Circuit said that different divisors may be reasonable. This means that defendants might estimate the number of un-convicted possessors of the victim’s image, thus lowering their individual restitution amount. The Sixth Circuit said that rather than Gamble and Crawford each being responsible for paying the victim $1,000,000, if it was found that 1,000 people possessed Vicky’s image then each would be responsible for paying $1,000 in restitution.

The Sixth Circuit ultimately remanded the cases because the district courts did not require any showing of a link between the losses suffered by the victim and the defendants’ offenses. The Sixth Circuit ordered that the district courts reconsider their decisions and decide damages based on how much responsibility for Vicky’s injuries they share with hundreds of other child pornography viewers.

To read the full opinion, click here.

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Gov. Haslam Signs Guns in Parking Lot into Law

Gov. Bill Haslam has signed a bill that would allow people with handgun carry permits to store firearms in their vehicles no matter where they are parked.

The signing comes despite questions about whether the legislation affects employment law in Tennessee.

Senate Speaker Ron Ramsey of Blountville and four fellow Republican co-sponsors on Thursday submitted a letter for inclusion into the Senate Journal elaborating on their legislative intent for the measure.

While the letter states the bill does not seek to alter the state's "employment-at-will doctrine," it notes that businesses could run into trouble if they seek to enforce a gun ban on their property.

The legislation was approved 28-5 in the Senate, and 72-22 in the House last month. It's scheduled to take effect July 1.

Reported by the Associated Press.

Monday, March 11, 2013

Supreme Court Refuses To Apply Immigrant Deportation Case Retroactively

In an important decision regarding immigrant criminal defendants, the U.S. Supreme Court issued an opinion, Chaidez v. U.S., late last month refusing to block the deportation of a woman from Illinois, as well as thousands of other immigrants, who pleaded guilty to serious crimes but were never warned by their attorneys that such a plea deal could target them for deportation.

The current law says that those immigrants and lawful residents who have an “aggravated felony” on their record will be deported. The term “aggravated felony” can be used to describe a host of state and federal offenses. The mandatory nature of the law highlights the stiff penalties suffered by noncitizens who plead guilty to criminal wrongdoing.

Immigration attorneys have argued that tens of thousands of immigrants plead guilty to crimes each year that could then lead them to be deported, something many do not realize when the agree to the plea deal. In an attempt to remedy this problem, the Supreme Court ruled a few years ago that attorneys had a duty to warn noncitizens of the chance that a guilty plea could lead to deportation. The recent case was meant to clarify that the earlier ruling would not apply retroactively to those immigrants who pleaded guilty to criminal offenses prior to 2010.

The case at issue involved Roselva Chaidez, an Illinois woman originally from Mexico. She lived in Chicago for decades and had been a legal permanent resident since 1977. She also had several children and grandchildren living in the area. She admitted back in 1998 to receiving $1,2000 from an insurance company for a fraudulent auto accident claim scheme run by her son and others.

Chaidez pleaded guilty to two counts of mail fraud, was sentenced to probation and required to repay more than $20,000 (the amount she and her son collectively profited). Chaidez followed the rules and completed her probation and paid restitution by 2004.

A few years later, Chaidez applied to become a naturalized citizen but was denied because she had been convicted of a crime. It was then that she learned that pleading guilty to mail fraud for more than $10,000 meant that she was subject to deportation. She filed a petition asking that her convicted be overturned due to her attorney’s failure to warn her of the consequences of her guilty plea.

A district court judge in Chicago ruled in favor of Chaidez and set aside her conviction. The case then moved on to the 7th Circuit which disagreed with the lower court and said Chaidez was not able to take advantage of  a recent Supreme Court case, Padilla v. Kentucky, to challenge her conviction. The Supreme Court agreed with the 7th Circuit and refused to retroactively apply its earlier decision in Padilla v. Kentucky to help those who plead guilty without proper counsel prior to the 2010 ruling. Justice Kagan, who wrote for the majority, said that the 2010 ruling amounted to a major legal change and that the Court does not apply such changes retroactively to old cases.

To read the full opinion, click here.

Source:U.S. Supreme Court won't block Chicago woman's deportation,” by David Savage, published at

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Tuesday, March 5, 2013

Sixth Circuit Excludes Evidence After Officers Search Wrong House

The Sixth Circuit Court of Appeals recently heard an interesting case out of Tennessee involving evidence that was uncovered during the search of a house that occurred after executing an arrest warrant at the wrong address.

The case, U.S. v. Shaw, began when Memphis police officers were dispatched to to arrest Phyllis Brown at her home. The problem was that the woman’s address, 3171 Hendricks Avenue, did not appear to exist. When the officers arrived on the street they discovered that there were two houses across from one another that both listed their address as 3170 Hendricks Avenue. Instead of clarifying the problem through investigation, the police chose to simply approach one of the two houses--the one that appeared to be occupied.

The police knocked on the door and were greeted by a woman. Rather than asking about Phyllis Brown or checking about the confused addresses, they only told the woman that they had a warrant for the address. It turns out the house they had selected was actually 3170.

Unfortunately for the woman at home, she never bothered to question the officers or demand to see the warrant. Instead, she let them in the house where they discovered a substantial amount of cocaine and no Phyllis Brown.

Rather than admit the misidentification with the adress, the government claimed that it had several really good reasons why the officers’ entry into the house was reasonable. They claimed that because it was occupied, a woman answered the door, the officers saw scales inside the house and finally, and because the odds were 50/50 that they had the right house, the execution of the warrant should be deemed reasonable. 

The Sixth Circuit disagreed with the government’s rationale, deciding that none of the justifications were sufficient. Instead, the Court said that the police lacked any reasonable basis for entering the house and that the evidence gathered would be suppressed.

The Sixth Circuit took special care to address the false statements made by the officers to gain entrance to the house. Not only did the officers lie once, saying that they had a warrant to search “this address,” but they continued their lie once inside, saying that they were there looking for the house located at 3170 Hendricks. The officers said their goal in misleading the woman was to then force her to admit that she was actually in 3171 Hendricks. Regardless, the Court said the officers behaved inappropriately and that all evidence derived from searches based on false pretenses will be excluded at trial. 

To read the full opinion, click here.

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Sunday, March 3, 2013

Corrections Corporation of America's legal settlements are subject to TN Open Records law.

NASHVILLE, Tenn. (AP) — The Tennessee Court of Appeals has ruled that Corrections Corporation of America's legal settlements are subject to the state Open Records law (opinion).

In a ruling filed on Feb. 28, the court said it disagreed with CCAs assertion that the company shouldn't have to turn over settlement-related records because they aren't part of the "official business" of running a prison.
The request for settlement agreements from CCA was part of a public records request made in 2007 by Alex Friedmann, the editor of Prison Legal News.

The company turned over some documents after a 2009 Appeals Court ruling that CCA is subject to the state's Open Records law, but the legal settlements weren't included.

CCA argued that the settlements didn't fall under the statute's definition of a public record and that because they were created for litigation — not the running of the prison — they weren't subject to the law.

The court rejected both arguments. Here is the full opinion.

Friday, March 1, 2013

Supreme Court Declines To Hear FISA Case Due To Lack Of Standing

The Supreme Court issued an important ruling on Tuesday, voting 5-4 against hearing a challenge to a law that worked to increase the government’s power to listen in on international phone calls and emails. Given the ruling, it likely means the Court will never actually decide on the constitutionality of the 2008 Foreign Intelligence Surveillance Act (FISA).

Experts said the decision was important in that it showed how hard it has become for civil rights groups and private citizens to challenge the government’s counterterrorism policies. The reason being that the majority of the Court said that the journalists and human rights groups who challenged the law were not able to show how they had been harmed by it and thus lacked the standing necessary to bring such a challenge.

The groups that brought the suit argued that they had standing because they feared that in the future they might be the victims of such government surveillance. The majority of the Court decided this possible future threat was too tangential to provide standing. Another tactic taken by the plaintiffs was to argue that they had incurred considerable expenses to avoid potential surveillance by the government, for instance, some journalists paid to fly to meet sources in person rather than risk talking over the phone. Alito, writing for the majority, said that the plaintiffs could not manufacture standing by purposely incurring costs.

The plaintiffs further argued that they should be allowed to bring the case given that only the government, the defendant in the case, knows whether the plaintiffs were surveilled and thus whether they were damaged. The Court rejected this idea too, saying that it is the plaintiffs’ responsibility to prove standing, not the defendant’s job to disprove it.

The case revolved around the FISA legislation which Congress initially passed in the wake of 9/11 and later amended in 2008. The Act gave broad powers to the executive branch to conduct surveillance of individuals overseas without going through the process of getting a warrant. The plaintiffs brought suit saying the Act violated their rights under the Fourth Amendment by allowing the government to intercept emails and telephone calls without a warrant.

The majority said it was satisfied that the wiretapping program was subject to safeguards including supervision by the Foreign Intelligence Surveillance Court which meets in secret and is supposed to review actions taken under FISA. Alito wrote that it was possible that some day someone might have standing to challenge the law. The example he gave was if the government decided to use information gathered under the program in a criminal prosecution then it might allow the victim of that surveillance to bring a claim with sufficient standing. Alito appeared to not be concerned that the realistic chance of such a situation happening was slim to none.

Read:Justices Turn Back Challenge to Broader U.S. Eavesdropping,” by Adam Liptak, published at

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