Criminal Law News - U.S. Eighth Circuit
U.S. Eighth Circuit - The FindLaw 8th Circuit Court of Appeals Opinion Summaries Blog

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"When I took my oath of office as a federal district judge in 1992, I knew that someday I might condemn an innocent man to die. I willingly accepted that risk when I took that oath, and I willingly accept that risk now. I will have to live with my knowing choice if such a horror comes to pass. I will have no one to blame but myself."

Early this month, a death row inmate was exonerated, thanks to a little DNA that was recently uncovered and tested. This was not particularly remarkable -- there have been many DNA-based exonerations over the last couple of decades. But the case drew attention because of a passing reference to the crime by Justice Antonin Scalia, who mocked the inmate's appeal while discussing Justice Blackmun's famous "tinker with the machinery of death" dissent.

At the time, we noted that both Justice Scalia and Justice Blackmun were assuming that the defendant was guilty -- Blackmun later argued for leniency because of the inmate's IQ, not factual innocence. But because Justice Scalia has a way with words, he himself was mocked by the press, including a particularly harsh take by "Digby," a blogger writing for Salon. U.S. District Court Judge Richard Kopf, a trial judge for the District of Nebraska who imposes the death penalty, penned an equally harsh (and hilarious) response in his usual, frank style.

And then, in a follow-up, he wrote something even greater: insight into what it is like to be a judge who imposes the death penalty, sometimes, maybe, on innocent defendants.

"Has the Eighth Circuit gone nuts?" It's a fair question, one posed by the venerable U.S. District Court Judge Richard Kopf after the Eighth Circuit affirmed a downward departure of between 135 and 168 months Abby Rae Cole.

The trial court, which sentenced Cole to three years of probation, noted that she was part of "one of the largest corporate frauds in Minnesota history" (a $33 million rip-off of Best Buy) and "was also a significant tax fraud" (she dodged $3 million in taxes).

Nonetheless, both the district court and the appeals court felt that she deserved leniency. Why?

Raphael L. Donnell was convicted of conspiring to distribute ecstasy. His career offender sentence enhancement was upheld on appeal to the Eighth Circuit, but while the appeal was pending, King v. United States was decided by the same circuit court. King would have nixed the sentence enhancement, but his attorney didn't notice the opinion because it was handed down after briefing in Donnell's case, but before his sentence was affirmed.

King holds that when two concurrent and equal sentences are handed down, and one of them doesn't qualify for criminal history points, there's no way to determine whether either can qualify as a predicate for career offender status. In these rare instances, the benefit of the doubt lands in the defendant's favor thanks to the Rule of Lenity. King is now on shaky ground, rejected by the neighboring Sixth Circuit, and treated to a multi-page dicta rant here.

Is King dead? And was Donnell's counsel ineffective for not reading our blog and studying every opinion that came out of the Eighth Circuit while his client's case was pending?

When is a bank liable for a customer's Ponzi scheme? Tom Petters started a company called Petters Capital, which he claimed purchased excess merchandise and sold it to companies like Sam's Club. Sounds great -- except he never did that. He faked purchase orders and paid old investors with the money he received from new investors. You know, like you do in a Ponzi scheme.

Petters defrauded a lot of big banks and investors in his $3.65 billion scheme. Palm Beach Funds, a private equity firm, lost $700 million, and it sure wasn't going to get it from Petters. Instead, it sued the bank where the money was kept in escrow before Petters transferred it to Palm Beach, on the theory that US Bank breached its fiduciary duties and committed all the kinds of negligence. The Eighth Circuit disagreed.

Missouri doesn't use the two-drug protocol that left a man in Ohio gasping and convulsing during his execution, and stretched an Arizona man's execution to nearly two hours. And it doesn't use propofol, the drug that killed Michael Jackson, though it tried. (The drug manufacturer threatened to stop selling it stateside before Missouri backed down.)

Since October, the Show-Me State uses only one drug, pentobarbital, which it obtains from a compound pharmacy at $11,000 a hit. And so far, it works: seven executions this year so far, which according to Time, is a record-setting pace for the state.

In 2012, M.A., an 11 -year-old girl in Nebraska, began to receive unsolicited sexually explicit messages on Facebook from a fictional individual named Bob Shepard. Local law enforcement investigated and soon discovered that Bob Shepard was actually Jeffrey Anderson.

Anderson is M.A.'s half-brother.

An officer took control over M.A.'s Facebook account and, sure enough, Anderson continued with his dark, incestuous fantasizing by sending a sexually explicit image to M.A.'s account. The image, which originally depicted two adults engaged in consensual fornication, had Anderson's half-sister's face superimposed on the adult female's body. The image was captioned: "This is what we will do."

Needless to say, he was arrested, convicted, and given a very long sentence of 120 months. He now argues that his conduct was protected speech under the First Amendment.

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The controversy stirred up by the botched execution of Clayton D. Lockett in Oklahoma has left states asking -- in my humble opinion -- the wrong question. Rather than reexamining the moral implications of a society that allows the death penalty to exist as a legal means of punishment, states are trying to figure out how to kill people.

Some states are going back to the electric chair, while others ponder the firing squad, reports The Associated Press. So Missouri Attorney General Chris Koster is proposing something new -- something akin to a very popular show on AMC about a chemistry teacher who becomes a drug dealer, which will remain nameless.

Russell Bucklew was on death row and his execution was scheduled for Wednesday, but because of last minute legal maneuvers, was put off.

After a stay was granted, lifted and put back into place, a full Supreme Court decided to grant a stay pending further appeals. Here's a detailed look at the situation.

The 4th Amendment: Still Alive and Kicking in the 8th

The 8th Circuit Court of Appeals breathed a bit of life into our republic on April 19 as it decided in a divided opinion, of course that the Fourth Amendment protection against unreasonable search and seizure is still with us despite the imminent threat of ... money?

In 2010, Carlos Martins was driving his pickup just west of Omaha, Nebraska when Deputy David Wintle pulled him over because his license plate was "obstructed" in violation of Nebraska Revised Statute 60-399(2). And by "obstructed," Wintle means that he had to get within 100 feet of it to be able to read the very bottom, where it said "Utah." It's undisputed that the rest of the license plate was completely clear.

Martha Shoffner Seeks Post-Conviction Acquittal

Lawyers for Arkansas treasurer Martha Shoffner argued before U.S. District Judge Leon Holmes that Shoffner should be acquitted on 14 bribery and extortion charges.

Holmes withheld judgment on Shoffner's earlier request to be ordered free on grounds that prosecutors didn't prove that any federal laws were broken. But Holmes opted to entertain the argument only if the jury returned any guilty verdicts, The Associated Press reports.

A jury convicted Shoffner last week, clearing the way for both sides to present written arguments to Holmes on why she should or should not be acquitted.