Sixth Circuit Discusses What Makes A Jail Escape A “Crime of Violence”

The case of  U.S. v. Benji Antonio Stout, involved one man’s escape from prison and how that escape should be classified with regard to a subsequent criminal prosecution. The man, Benji Antonio Stout, was charged with knowingly possessing body armor after having previously been convicted of a crime of violence. The previous crime of violence conviction was Stout’s earlier charge of second-degree escape, a conviction he earned from escaping a county jail. During the escape, Stout climbed a wall in the recreation area of the jail and then crawled through a hole in the top of the fence.

Stout and his attorneys argued that the prior conviction did not involve a crime of violence and asked the lower court for a hearing on the matter. The lower court concluded that his escape was a crime of violence given that his escape was purposeful and aggressive and that it created a substantial risk that he would need to use physical force against either guards or members of the public who encountered him during the escape. The fact that he never used such physical force was immaterial.

Stout then appealed the case, claiming essentially the same thing. The Sixth Circuit agreed with the decision of the lower court, holding that the escape amounted to a crime of violence. In its ruling, the Court walked through Kentucky’s statutes dealing with the subject of second-degree escape and determined that the type of escape at issue in this case involved “an escape by leaving custody in a secured setting.” This variety of escape involves a purposeful act and requires stealth and presents the possibility of both detection and ensuing confrontation.

The Sixth Circuit said that 18 U.S.C. Section 16(b) makes clear that a crime of violence includes any that involves a substantial risk that physical force may be used in the course of committing the offense. Under this definition, the Court says it is clear that the Stout’s escape meets the standard and should be properly deemed a crime of violence. As a result, his conviction and sentence were upheld.

In an interesting dissent, Judge Bernice Donald argued that unlike the famous prison escapes mentioned in The Count of Monte Cristo or The Shawshank Redemption, which Donald agrees would qualify as crimes of violence, Stout’s escape was achieved by merely climbing over a wall and crawling through a hole that he was not responsible for creating. Given that Stout never harmed anyone or any property in his escape, Judge Donald believes it is clear that his escape should not be labeled a crime of violence.

To read the full opinion, click here.

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Sentencing Friday For Amish Beard Cutting Case Then To Sixth Circuit

Sixth Circuit Says For Sentencing Purposes “Relevant Conduct” Must Be Criminal Conduct

Sentencing Friday For Amish Beard Cutting Case Then To Sixth Circuit

Friday a federal judge in Ohio will sentence an Amish sect leader and his followers for cutting the hair and beards of other fellow Amish.  Despite the lack of finality at the trial court, attorneys have already said the case will be appealed to the Sixth Circuit Court of Appeals. This criminal case involves a federal hate crime law and the extent of power Congress has to regulate interstate commerce. Lawyers for the Amish sect leader Samuel Mullet Sr. challenge the constitutionality of part of the Hate Crimes Prevention Act that was used to charge nearly a dozen of Mullet’s followers after a series of forced beard cuttings that took place in 2011 in rural Ohio.

Mullet, as well as many of his followers, pleaded not guilty to charges involving attacks on fellow Amish men and women who allegedly disagreed with Mullet. The group was ultimately found guilty of federal hate crimes and conspiracy charges.  They are to be sentenced Friday in U.S. District Court. The government has asked for a sentence of life imprisonment for Mullet in court documents filed this week.

Prosecutors argued that the defendants targeted their victims because of the spiritual importance of their hair and beards. In the Amish faith, men growing their beards and women growing their hair has a special significance. Amish men let their beards grow once they are married, believing the Bible views cutting the hair as degrading or humiliating.

The defendants have already announced that they are appealing their convictions to the Sixth Circuit Court of Appeals regardless of Friday's sentencing, arguing that the Court should overturn their convictions. Attorneys for the Amish defendants claim the federal hate crime law that the charges were based on was passed by Congress with only a weak link to interstate commerce. This link allowed federal prosecutors to pursue cases, like this one, that would ordinarily be left to local authorities. The defense will cite how prosecutors used the fact that the attackers hired drivers to travel to various locations to cut the men’s beard as a tie to interstate commerce. Also, prosecutors relied on the fact that the scissors used to cut the beards were originally manufactured in New York.

The defendants have made clear that they will argue that the Hate Crimes Prevention Act exceeds Congress’s power under the Commerce Clause because the activity regulated does not have a substantial effect on interstate commerce. This case concerning forced beard cutting hardly will present the Sixth Circuit with a chance to grapple with the scope of Congress’ power under the commerce clause.

Read: “High-Profile Lawsuits Headed To The Sixth Circuit In 2013,” by Steve Delchin

Sixth Circuit Says For Sentencing Purposes “Relevant Conduct” Must Be Criminal Conduct

The Sixth Circuit issued a ruling recently in U.S. v. Ernest Catchings. The Court held that for an act to be viewed as “relevant conduct” for calculating federal sentencing guidelines, the act must have been an offense that could have resulted in incarceration for the defendant.

The case came about after Ernest Catchings was arrested and charged with using his former clients’ personal information to obtain credit cards in their names. Catchings pleaded guilty to identity theft and it then became necessary to calculate the total amount of loss Catchings’ actions resulted in. The district court, while calculating the figure, included in its total money lost as the result of credit cards that were in the name of a company Catchings started with a friend. These losses worked to push Catchings into a higher loss bracket. Catchings claims that these cards were not obtained by fraudulent means and therefore the losses should never have been included in his guidelines range.

The matter of the business cards was a complicated one given that Catchings’ former business partner admitted they had opened the credit account together, for the business. However, he said the cards were not to be used for personal expenses. The prosecutor revealed that money had been charged to the cards, but never clearly showed that the charges were personal and not business related. Though the charges may have been unfortunate, there was no proof that they were illegal.

The Sixth Circuit ultimately agreed with Catchings. The Court said that in order for conduct to be relevant for loss calculation, it must also be criminal conduct. The Court felt that Catchings likely took advantage of his former friend and business partner, but that it is not clear based on the evidence presented during sentencing that his conduct was criminal.

Catchings also appealed on a second issue, claiming that his guilty plea was not entered into knowingly or voluntarily and that the lower court made a mistake when it denied his motion to withdraw his guilty plea. The Sixth Circuit disagreed with Catchings in this case. The Court held that following an analysis of the seven factors judges must consider when hearing a motion to withdraw a guilty plea, laid out in U.S. v. Bashara, Catching’s motion was properly denied. The only possible claim Catchings had was one of ineffective assistance of counsel, however, he destroyed that as a basis after it was revealed he reinstated his counsel after first making his claim of incompetence.

The different outcomes on the two appealed issues means that the conviction was affirmed as was the lower court’s denial of his motion to withdraw his guilty plea. However, Catchings’ sentence was vacated and remanded for resentencing in accordance with a new loss calculation.

To read the full opinion, click here. 

Sixth Circuit Rules that Park Ranger Was Right to Detain Man Carrying AK-47

In Embody v. Ward the Sixth Circuit Court of Appeals recently ruled that a park ranger did not violate the rights of a man who wore camouflage and carried an AK-47-style pistol across his chest with a loaded 30-round clip in a Nashville park.

The gun toting man from Brentwood, Leonard Embody, sued park ranger Steve Ward for detaining him at the Radnor Lake State Natural area back in December 2009. Ward held Embody while he investigated whether the gun was legal and whether Embody had a permit to lawfully carry it. The investigation revealed that Tennessee law allows guns with barrels of less than 12 inches in state parks. Luckily for Embody, his gun just squeaked by, with his barrel a half-inch under the limit. The stupidity of the Tennessee legislature to pass such a law allowing a man to bring a AK-47 into a state park was not at issue.

Embody also painted the  tip of his gun orange, an attempt to make the gun look like a toy. The Sixth Circuit said that given this, “An officer could fairly suspect that Embody had used the paint to disguise an illegal weapon.”

The Court also mentioned the concern raised by other park-goers: evidently one person raised his hands in the air when he ran across Embody while two other park visitors came to Ward to say they were “very concerned” about the man. Later an elderly couple reported that a man was wandering through the park with an assault rifle. All of this was further evidence, according to the Court, that Ward behaved reasonably when detaining Embody.

The Sixth Circuit said that Embody’s detention was predictable and that Embody himself suspected it might happen which is why he carried an audio-recording device on his person. The Court clearly felt little sympathy for Embody, saying that having worked hard to appear suspicious, Embody cannot later complain because park rangers took the bait.

Full opinion can be found here.