Sixth Circuit Permits Warrantless Search In Tennessee Case

The case, U.S. v. Kevin Patrick Daws, involves sheriff’s deputies in Henderson County, Tennessee who conducted a warrantless search of Kevin Daws’ home based on a public safety issue. The question was whether the threat posed by Daws justified the search of the house, something the Sixth Circuit Court of Appeals ultimately decided it did.

The incident began after a home invasion in 2010. Daws had smashed through a window of an acquaintance’s house, shoving a shotgun in the man’s face while demanding cash. Before leaving, Daws told the victim that if he ever called the police Daws would kill him. Later that same night Daws invaded the home of yet another acquaintance and demanded that the man store his shotgun and money, yet again insisting that if the victim informed police of Daws’ actions that Daws would return and kill the man.

Unsurprisingly, both men called the police that night and reported the incidents. One of the responding officers had previously worked as a correctional officer at a prison where Daws served time for aggravated burglary and remembered hearing how Daws had fired a weapon in his front yard and held up a gas station attendant at gunpoint. Based on the two incidents that had occurred earlier that evening and the background knowledge of the officer, the deputies decided it was best to arrest Daws as soon as possible and to do so carefully, calling for backup and to put on body armor.

After arriving at the house, the officers noticed an accomplice on the front porch crying, talking on the phone about how he and Daws had done something bad and would be going to jail as a result. The officers arrested the man who informed them that Daws was inside and asleep. The officers then took this as an opportunity to move in without possible armed resistance, and entered through an open back door and found Daws asleep in the living room. After detaining Daws, a sweep of the house turned up the shotgun used in the earlier home invasions.

Daws was charged with possession of a firearm by a convicted felon, ultimately pleading guilty and being sentenced to 210 months in prison. Daws decided to appeal the district court’ decision, arguing the evidence found in the house should have been suppressed due to the lack of a warrant.

The Sixth Circuit, however, was not convinced. Instead, the Court walked through all the reasons why the officers were justified in entering Daws’ home immediately, without the delay of seeking a warrant. Given Daws’ behavior that evening, his prior instances of violence, threats to others and his ability to escape into the wilderness around his house, the Sixth Circuit decided that the situation presented a case where there was potential for injury to the officers and thus there was a need for swift action. The Court agreed that waiting to get a warrant would have heightened the risk that Daws would act on the threats or, at the very least, escape.

The Sixth Circuit found that the Fourth Amendment does not require that police ignore real risks of a shootout or of a suspect’s escape and can instead take action if there is a reason to do so. In this case, Daws’ own behavior justified quick action on the part of the officers and thus no warrant was necessary before entering Daws’ home.

To read the full opinion, click here.

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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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Sixth Circuit Hears Criminal Trade Secrets Case Concerning Giant Tires

By Lee Davis

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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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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Sixth Circuit Hears Criminal Trade Secrets Case Concerning Giant Tires

You might not think a case about giant tires would have much to do with criminal law, but a recent case before the Sixth Circuit Court of Appeals concerning criminal trade secrets involved just that. The case, U.S. v. Howley, involves a trade secrets prosecution under 18 U.S.C. Section 1832(a). The two men at the center of the case, Sean Edward Howley and Clark Alan Roberts, were convicted of stealing trade secrets and engaging in wire fraud.

The case involved engineers who worked for Wyko, an American company that provides parts to tire manufacturers like Goodyear. Apparently the story began when a government owned Chinese company wanted to get in on the giant tire building business. Tires for huge earthmovers and giant bulldozers are incredibly expensive, complicated items that are only produced by a handful of companies around the world.

While servicing some of the Goodyear machines, Howley and Roberts (who had already signed confidentiality agreements with Goodyear) snuck some pictures. This information was combined with sketches Wyko already obtained from a former Goodyear employee of the machines used to make the tires. This was enough to allow Wyko to start working on a machine of their own for the Chinese company.

In a curious twist, Howley and Roberts claimed that they never stole trade secrets, despite clear evidence of their photographs. The two argued that a trade secret was only a trade secret when the person who owns it has taken measures to secure the information and if the supposedly secret information has value because it is not widely known. The Sixth Circuit flatly rejected the defendants’ arguments, saying that the information was securely kept, pointing out that both had been required to sign a confidentiality agreement and to specifically agree not to take any pictures during their visit to the plant. Moreover, the secret was economically valuable given the lengths Wyko and the Chinese company went to obtain it.

More bad news for the defendants came when the government cross-appealed their sentence, originally a four-month period of home confinement. According to prosecutors, the issue was that the sentence did not match the value of the criminal act. There were three estimates of damage provided by the government: the contract price between the Chinese firm and Wyko - $305,000; the price of Goodyear to make the equipment - $520,000; and finally, Goodyear’s annual sales of the giant tires - $20 million.

The lower court never fully grappled with the estimates given by prosecutors, saying they had failed to prove any economic loss, and decided to simply give Howley and Roberts the minimum sentence allowed. The Sixth Circuit disagreed with the lower court, saying that while it may be difficult to fix the value of a trade secret, the lower court should have at least tried. Even the lowest estimate provided by the prosecution would have resulted in a 37 to 46 month prison sentence. The Court then decided to remand the case for resentencing.

To read the full opinion, click here.

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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 Says 911 Call Justifies Police Entry Into House

In Stricker v. Township of Cambridge the Sixth Circuit issued a ruling concerning police and their ability to enter a private residence. The case began when members of the Stricker family placed an emergency call to 911 to ask for help for their son who appeared to be overdosing. The 911 operator asked what substance the son had consumed but the mother, Susan Stricker, said she did not know.

Paramedics arrived soon after the call was placed but followed their stated policy of not entering a house until the police had arrived to secure the scene. A police office who heard the house involved in the call radioed the police dispatcher to let the department know he had previously been to the same address and made several arrests for occupants of the home who were heroin addicts.

When the police finally arrived, the Stricker family told them to leave their property. EMS and the police at the scene pressed the family to allow them inside to treat the ill son, the family insisted that the police had to go but the EMS were allowed to stay.

The brief appearance of the ill son in the front window, unsteady and obviously in distress, as well as a consultation with an assistant district attorney, was all the officers on the scene needed to force their way inside the house. The parents were handcuffed and the son was treated by EMS. The son was later found to have taken Xanax and heroin and required hospitalization.

While the police were securing the home they did a standard security sweep and uncovered some illegal substances. The parents were ultimately charged with resisting an officer and the son was arrested for substance abuse. The family then filed a suit against the police department, claiming that the officers who pushed their way into the house broke the law by engaging in an unreasonable search and seizure. They further claimed the officers used excessive force and that the district attorney’s office was working in conjunction with the police in a conspiracy to violate the Fourth Amendment.

The Sixth Circuit appeared not to hold much concern for the arguments of the Stricker family. The panel found that 911 calls represent a textbook example of an exigent circumstance. Such emergency situations are prime examples of when it can be necessary for police officers to enter a home without a warrant. The Sixth Circuit said even hang-up calls to 911 could be justification for such police entries. The 911 call, the previous police interaction with residents of the house and the brief encounter with the ill son in the window all served as sufficient justification for police action given that it was reasonable to assume the man needed immediately medical attention.

The Court went on to call the search of the house justifiable, though a close issue. The panel wrote that because the mother was unable to explain what substance her son had ingested the police were justified in searching for more information to help treat the son.


To read the full opinion, click here.

U.S. Supreme Court to consider "late" actual innocence proof

An issue before the U.S. Supreme Court involves the late appearance of evidence that may demonstrate a criminal defendant’s innocence. Though many people assume that if evidence were to arise showing that someone was clearly innocent of the crime they were accused of committing, no matter how late, then it would be considered by the court. Perhaps it may come as a surprise to some, this is not always the case. Here is the petition for certiorari granted by the Supreme Court on this issue filed by Floyd Perkins.

The actual issue presented states: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) contains a one-year statute of limitations for filing a habeas petition. In Holland v. Florida, 130 S. Ct. 2549, 2562 (2010), the Supreme Court affirmed that a habeas petitioner is entitled to equitable tolling of that one-year period “only if he shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

Floyd Perkins' petition presents two recurring questions of jurisprudential significance involving equitable tolling under AEDPA that have divided the circuits:
1. Whether there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition.
2. If so, whether there is an additional actual- innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.

As Justice Antonin Scalia wrote in 2009, the Supreme Court has never held that “the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

The Supreme Court now has agreed to hear a case that demonstrates exactly why the issue can be a tricky one. The case involves a Michigan man, Floyd Perkins, who is serving a life sentence for murder. New evidence was uncovered and a long time passed before it was presented. The issue now is whether it can be raised or whether Perkins should spend the rest of his life in prison for a crime he says he did not commit.

The details of the incident begin with a house party in 1993. Perkins was in attendance and left with two other men, one of whom was later found dead in the woods, having been stabbed in the head. The third man, Jones, testified that Perkins murdered him. Perkins said he parted ways with the other two and later ran across his accuser under a streetlight covered in blood. The jury ultimately believed the accuser, voting to convict Perkins.
After his conviction Perkins worked to collect evidence demonstrating his innocence. There was an affidavit from his sister that said she heard secondhand that Jones had bragged about the killing and had taken bloody clothes to a drycleaner. This is hearsay and it is from a relative, both facts undermined the value of the testimony. A few years later Perkins got a second sworn statement from an acquaintance of Jones’ who said Jones confessed to the killing and confirmed the story about the dry cleaning. Then, a few years after that an employee of the dry cleaning store said that a man who looked like Jones had indeed come in to drop off bloody pants to be cleaned.

Finally, with this information gathered, Perkins asked a federal court to throw out his conviction in 2008. Magistrate Judge Timothy P. Greeley of the Federal District Court in Marquette, Michigan recommended that his request be denied because it was filed too late. Perkins appealed but to no avail. Then the Sixth Circuit Court of Appeals reversed the ruling. It ordered Judge Bell of the Federal District Court in Grand Rapids to consider whether the new evidence was credible enough to justify consideration.

After the Sixth Circuit decision, Michigan appealed to the Supreme Court, and with the support of 10 other states, argued that deadlines are important procedural rules and ought to be enforced as written. They say the legal requirement is that such claims be pursued diligently.

However, Perkins argues that’s exactly what he did. He filed a note with the lower court before the deadline passed explaining that many of his documents and property had been destroyed by prison personnel following a skirmish. He was subsequently denied access to the law library and placed in solitary confinement for nearly five years, making further work on his case all but impossible.

Though the evidence is suggestive, it’s not factually conclusive for Perkins. Had it been presented at trial it may have made a difference, or maybe not. The question is whether there is enough reason to justify Perkins presenting it to a court for consideration now.

Read: “Case Asks When New Evidence Means a New Trial,” by Adam Liptak, published at NYTimes.com.

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.

Sixth Circuit says cell phone GPS data can be used to track criminals

by Lee Davis

• United States v. Melvin Skinner

The Sixth Circuit recently ruled that using GPS data to track the owner of a pay-as-you-go cell phone is constitutional and much the same as using dogs to hunt for a fugitive.

In the case of U.S. v. Skinner, the defendant used a pre-paid cell phone obtained by providing false identity information (also known as a “burner“) to communicate with co-conspirators as he brought a motor home filled with marijuana from Arizona from Tennessee.

Agents discovered the cell phone number that the defendant was using and obtained a court order requiring the cell phone company to disclose location information of the phone to the agents. The government used the location information to track the car for three days, eventually catching up to the car at a rest stop in Texas. Local police then brought out a dog to sniff for marijuana which resulted in the dog finding 1,100 pounds of pot.

Skinner was ultimately arrested and charged with various drug-related crimes, including possession with the intent to distribute and conspiracy to commit money laundering. He was convicted on all counts and sentenced to more than 19 years in prison. Skinner appealed, claiming law enforcement’s use of GPS data from his cell phone was a warrantless search in violation of his Fourth Amendment rights.

The Sixth Circuit disagreed, upholding the conviction of Skinner, saying, “The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools.” Judge John Rogers wrote, “Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent.”

Rogers noted that criminals often use pay-as-you-go phones, presumably because they are more difficult to trace. "When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them,” Rogers wrote. The majority opinion concluded by saying that the defendant did not have a reasonable expectation of privacy regarding the location broadcast by his cell phone.  

To read the full opinion, click here.

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Lying to Probation Officer is a Federal Crime

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Lying to Probation Officer is a Federal Crime

By Lee Davis
United States v. Vreeland

Everyone knows that a person has the right to remain silent when faced with questioning by police and most people understand that you have the right to have an attorney present during questioning. Perhaps fewer people know that it is a crime to lie to federal agents.

In Vreeland, the court was faced with these issues in the context of a man who lied to his probation officer during his monthly probation meeting. Vreeland denied knowing a man involved in a crime. He too was a suspect in this crime. His probation officer pressed on these facts. Vreeland's statements are what formed the basis of both a probation violation and the substantive new crime of lying to the PO--a federal agent. This is a novel issue in the Sixth Circuit.

In Vreeland the Court was face with two questions: whether his false statements to a probation officer during the course of a monthly supervisory meeting are protected by the Fifth Amendment privilege against self-incrimination, and whether such statements fall within the “judicial function exception” to prosecution set forth in 18 U.S.C. § 1001(b). The answer to both questions is no.

The Court reasoned that:
We have held that “the Fifth Amendment privilege against self-incrimination is not self-executing in the context of a meeting with a probation officer.” United States v. Miller, 910 F.2d 1321, 1326 (6th Cir. 1990) (holding that the defendant’s voluntary revelation to his probation officer during a presentence meeting that he regularly purchased cocaine to support his habit, resulting in the probation officer’s recalculation of the defendant’s base offense level and sentencing range for his drug offense, was not a compelled incrimination); see also United States v. Humphrey, 34 F.3d 551, 555 (7th Cir. 1994) (“[U]nless a state overtly threatens to revoke probation in retaliation for the legitimate exercise of the self-incrimination privilege, there is no reasonable basis for a probationer to believe that his Fifth Amendment rights are in jeopardy.”) (citing Murphy, 465 U.S. at 438).

As to the notion that these are protected communications that are not subject to prosecution, the Court rejected that idea.
A meeting between a probation officer and a defendant under supervision is not a “judicial proceeding” protected by § 1001(b) because it serves an administrative, not an adjudicative, function.

Vreeland received a two year sentence for lying to his PO and an additional two years for his probation violation.

The full opinion can be found here.

Supreme Court Overrules Sixth Circuit and Reinstates Murder Convictions

by Lee Davis

• Parker v. Matthews

Earlier this week the U.S. Supreme Court restored murder convictions against a Kentucky man who broke into his estranged wife’s home and killed his mother-in-law before raping and killing his wife. 

A three-judge panel from the Sixth Circuit decided to overturn the nearly 30-year-old convictions which the Supreme Court was a decision “based on the flimsiest of rationales.”

David Matthews had a stormy marriage with his late wife, Mary Marlene Matthews and the two fought and reconnected many times. Just weeks before the murders, Matthews spent time in jail on charges that he sexually abused his wife’s 6-year-old daughter. In June of 1981, Matthews bought a gun and broke into the home he shared with his wife, entering the room where her mother was sleeping and shooting her at point-blank range. He then spent several hours having sex with his wife before shooting her too. When he was arrested later that day he had already started the process of destroying evidence, cleaning clothes and burying guns in the backyard. 

A jury convicted Matthews of first-degree murder, and sentenced him to death. This was over his objections that the crimes occurred due to an extreme emotional disturbance on his part. The Sixth Circuit granted him relief after a series of appeals but the Supreme Court struck down the ruling, saying it was based on invalid grounds. The Court said that there is no evidence that the lower courts improperly shifted the burden of proving extreme emotional distress onto Matthews. The high court further stated that the jury had an appropriate basis to find Matthews did not suffer from an extreme emotional disturbance. 

The Court wrote, “As the Kentucky Supreme Court observed, Matthews’ claim of extreme emotional disturbance was belied by ‘the circumstances of the crime’ - including the facts that he borrowed money to purchase the murder weapon the day of the murders, that he waited several hours after buying the gun before starting for his wife’s home, and that he delayed several hours between shooting his mother-in-law and killing his wife.” Furthermore, “The claim was also belied by his behavior after the murders, including his ‘[taking] steps to hide the gun and clean his clothes.’”
      

Despite the testimony during the trial by Matthews’ psychiatrist who attempted to show the disturbance the defendant was under at the time of the murders, the Court ruled that the jury was entitled to consider the doctor’s testimony along with their own “common-sense understanding of emotional disturbance.” The Court held that the Sixth Circuit went astray by resolving the matter in favor of the physiatrist’s testimony which was an act overstepping its authority. 

To read the full opinion, click here. 

Read: “Double Homicide Verdict Restored by High Court,” by Barbara Leonard, published at CourthouseNews.com.

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Sixth Circuit Court of Appeals: No recovery for man released from prison 17 years too late

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

Sixth Circuit Court of Appeals: No recovery for man released from prison 17 years too late

by Lee Davis

• Heyerman v. County of Calhoun

On Tuesday the Sixth Circuit U.S. Court of Appeals refused to reinstate the lawsuit of a man, Buxton Craig Heyerman, who blames prosecutors for leaving him in prison for 17 years after his conviction was overturned. Heyerman filed a civil rights action alleging the defendants violated his Sixth Amendment speedy-trial rights through his lengthy detention. 

There seems to be no dispute that a court order overturning Buxton Heyerman’s conviction and ordering a new trial apparently fell through the cracks in 1989. In January of 1988, after initially being found guilty of one count of first-degree criminal sexual conduct, he was sentenced to a prison term of 20-40 years. The next year the Michigan Court of Appeals reversed the conviction and remanded the matter back to the trial court. But instead of getting a new trial, he stayed in prison.

The Sixth Circuit said there’s no evidence that his extended stay in prison was due to a prosecutor's bad policy or a failure to supervise staff, key points in his civil rights lawsuit. The system in place at the time was to notify the parties and schedule a status conference once a case was remanded or reconsideration. For reasons unknown, the procedure was not followed in this case. 


The Sixth Circuit wrote that: 

“The judicial system - to say nothing of the criminal defense system - has not functioned as it should when a criminal defendant remains imprisoned for 17 years after his or her conviction has been reversed and no further action has been taken. Liability, however, does not necessarily attach to any entity and/or individual as a result of this breakdown.”

Heyerman’s attorney at the time was evidently aware of the decision but told his client to keep quiet and stay locked up for a few more years until the statute of limitations on the charge ran out. Calhoun County authorities said they became aware of the case only in 2007, when Heyerman filed a lawsuit demanding his release.

A judge that year dismissed charges, saying Heyerman's right to a speedy trial was violated. Heyerman’s former attorney paid $95,000 to settle a malpractice claim and was suspended from the practice of law for three years.

The judges of the Sixth Circuit summed the trial up aptly, calling it a “remarkable saga.”“It is not often that an inmate seeks refuge from the prosecutorial arm of the state by laying low for 17 years in prison in order to avoid the risk of a new trial that, if all goes badly, will lead to incarceration. And it is not often that a state abets this strategy by failing to realize that it is housing an individual whose conviction has been reversed.

To read the full opinion, click here. 

Earlier:

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

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

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

by Lee Davis

• US v. Doyle

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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Lee Davis practices federal criminal law in federal courts in Tennessee and across the country.

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

by Lee Davis

• US v. MICHAEL D. JACKSON

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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Lee Davis practices law in federal court in the sixth circuit representing people in federal cases.

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

SHIRLEY A. CUNNINGHAM , JR.

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 6^th 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.

USA. v. SHIRLEY A. CUNNINGHAM , JR. Read: “Fen-Phen lawyers' convictions upheld for defrauding clients,” by Andrew Wolfson, published at Courier-Journal.com.

Earlier:

Lawyers convicted of scamming millions from fen-phen suit get unsympathetic hearing at 6th Circuit 

Federal sentencing discretion under attack

6th Circuit Appeals Court Upholds Child Pornographer’s Life Sentence

by Lee Davis

• UNITED STATES v. STEPHEN LYNN HAMMONDS

The U.S. Court of Appeals for the Sixth Circuit upheld the life sentence of a Jackson, Tennessee man who pleaded guilty to the sexual exploitation of minors and in trafficking child pornography. Stephen Lynn Hammonds, 45, argued on appeal that his 2010 sentence by U.S. District Court Judge Bernice Donald of Memphis was unreasonable and excessive.

Hammonds argued that mandatory guidelines imposed a sentence that was too harsh for the crime that was committed. Hammonds was originally arrested as part of a larger sting operation in 2009 by the Memphis office of the FBI. 

According to court records, Hammonds told FBI agents (posing as children) that he wanted to meet and have sex with them and that he had done so in the past on multiple occasions with his own teenage stepdaughter. Agents with a warrant searched his home and found dozens of files containing child pornography. He then pled guilty to federal charges six months later. 

This wasn’t Hammonds’ first time in trouble with the law. In 1998 he was arrested on charges of statutory rape and incest with a young girl between the ages of 13 and 15. This previous convicted served to enhance the guidelines for his federal punishment and led to his life imprisonment. 

In his appeal he pointed to a psychologist’s report saying that he was only a medium-low risk of reoffending and he had accepted responsibility for his actions and even helped agents find and convict another child pornographer. 

The government argued that Hammonds had bragged about his earlier conviction for incest and used it while looking for new targets of abuse. Judge Donald declared Hammonds to be “particularly dangerous” and deemed him beyond the point of rehabilitation. She said that he needed to be permanently separated from society and the children he might place at risk.

Writing for a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, Judge Julia Gibbons said Judge Donald did not abuse her discretion in doling out the tough sentence. “The district court did consider the mitigating factors in the case,” Gibbons said, “but found, appropriately and within its discretion, that concerns about the seriousness of the crime and the need to protect the public were paramount.”


Here is the full opinion of the court: United States v. Stephen Hammonds.

Read: “Federal appeals court upholds Tennessee child porn trafficker’s life sentence,” by Lawrence Buser, published at CommercialAppeal.com.

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Lawyers convicted of scamming millions from fen-phen suit get unsympathetic hearing at 6th Circuit

Judge Ronnie Lee Gilman of the 6^th Circuit Court of Appeals told two attorneys that while their trial judge may have made an error, their scamming of millions from a 2001 fen-phen settlement just “looks wrong.”

The attorneys, 60-year-old William Gallion and 57-year-old Shirley Cunningham Jr., are currently serving prison time for taking more than $94.6 million out of a $200 million settlement. Judge Gilman criticized the attorneys for having taken the bulk of the settlement for themselves; initially distributing only $40 million to clients. Gilman said that lawyers getting 75% of the settlement while clients are left with 25% is fundamentally unfair. 

Gallion and Cunningham were convicted of scamming more than 400 clients out of millions they had won against American Home Products, maker of fen-phen. The drug was pulled off the shelves after users complained of heart problems related to the drug. Prosecutors say the attorneys illegally kept the bulk of the settlement, but later made more money available to their clients only after the federal government began a criminal investigation.

Cunningham’s attorney, Clifton Harviel, told the Court of Appeals judges that U.S. District Judge Danny C. Reeves made multiple errors during the trial, depriving the attorneys of a free and fair trial. Gallion’s attorney, Louis Sirkin, pointed out that Reeves allowed jurors to see 22 findings made by the Kentucky Supreme Court against Gallion and Cunningham, even though the high court never held a hearing. “It changed the whole dynamic,” Sirkin said. “It made these people look like bad guys.”

Judge Eric Clay of the 6^th Circuit wasn’t too impressed with the argument and said as much. “You go on and on, but we’re not hearing any legal authorities.” Sirkin replied: “We’re doing the best we can.” 

Prosecutors rehashed some of the evidence of the case, including how Gallion and Cunningham instructed employees not to tell clients the full details of the settlement and offer them less than they were initially allocated. Cunningham initially moved $153 million into the attorneys’ financial accounts, only to reverse court later and put $59 million back into the settlement after the federal government issued subpoenas as part of their criminal investigation.

Prosecutors pointed out that jurors only saw a few of the findings by the Kentucky Supreme Court and were later instructed to disregard what they had been shown, saying “The full list of allegations was never shown to the jury.”

The case has resulted in the downfall of many prominent legal careers. Beyond Gallion and Cunningham, formerly prominent attorneys in Lexington, another attorney, Melbourne Mills, was acquitted at trial but later disbarred for his role in the case. The Kentucky Supreme Court also disbarred former state judge Joseph P. Bamberger, who oversaw the settlement and was found to have profited from it, as well as David Helmers, a former legal associate of Gallion. The Kentucky Supreme Court is still deciding the fate of Stanley Chesley, a class-action specialist from Ohio. Chesley managed to avoid criminal prosecution, but faces multiple ethics charges that could result in disbarment.

Gallion and Cunningham are fighting battles on multiple fronts as they are also being sued by their former clients in civil court. A judge recently awarded the former clients $42 million, but the Kentucky Court of Appeals overturned the decision and the case is now pending before the Kentucky Supreme Court.

The 6^th Circuit Panel has taken the case under advisement and has not yet issued an opinion.  Reversal or either conviction is seen as highly unlikely. Gallion is not scheduled to be released from federal prison until 2029 and Cunningham's release date is not until 2025.

Read: “Federal appeals court hears Ky. diet drug pair,” by Brett Barrouquere, published at CBSNews.com.

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