Recently in Criminal Law Category

Bryan St. Patrick Gallimore was arrested and convicted of second degree burglary with a sentence of no more than ten years. Gallimore was consequently facing criminal deportation as an alien convicted of an aggravated felony.

Gallimore sought to stay in the U.S. by seeking deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). However, he was denied because of the criminal alien bar under 8 U.S.C. Section 1227.

It was business as usual for Adam Winarske back on June 29, 2011. He was meeting a man named Fergel to sell him a handgun at the parking lot of a shopping mall. Little did he know that Fergel was a police informant; a reliable one at that.

The Eighth Circuit Court of Appeals has ruled that a new informant can be a reliable enough source for police to believe there is probable cause of a criminal activity occurring.

Officer Anton Mark was involved in a de minimis incident with Plaintiff Miles LaCross in 2006. Officer Mark suspected that LaCross, who appeared to be a minor, and who had a female companion, may have been consuming alcohol. The parties discussed the matter, and at some point, LaCross ended up in the back of the squad car.

That’s the civilized version. What really happened was probably a bit more … confrontational. LaCross was zapped with a Taser while handcuffed in the back of a the squad car. LaCross says that it was unprovoked. Officer Mark says that LaCross kicked at the car’s windows, spat, and attempted to bite him.

The court also noted, in a footnote, that while the Taser was used three times. “LaCross challenges only the Taser application that occurred while he was handcuffed and seated in the squad car.”

Man sells heroin to a drug addict. He goes a wee bit overboard and mixes the Big H with a few other opiates. He dies, the path leads back to "Lil C", the alias of Marcus Burrage. The feds charge Burrage with distributing a controlled substance and distributing a controlled substance leading to death.

The problem here is obvious, isn't it? When a man takes a cocktail of drugs, how can you blame one drug more than the others? The experts sure couldn't. They couldn't differentiate between the amounts of the various opiates, nor could anyone definitively state that the heroin was either a "but for" or "proximate" cause of the man's death. The best they could say was that it was likely a "contributing cause."

In 1997, Michael and Cindy Seibel fostered, and then adopted three children, females S.S. and P.S. and a male M.S. The children entered the system after their biological father was convicted of sexually abusing their three older siblings. Though abuse of S.S. and P.S. was also suspected, and noted on the children's South Dakota Medicaid applications, Cindy maintained that they were not sexually abused and they were never provided counseling related to any such abuse.

Sexual abuse reared its ugly head again in 2008, when P.S. and S.S. both disclosed that they had been physically and sexually abused by their adopted father, the defendant Michael Seibel.

Even as an experienced attorney (hah - I blog), once in a while, I run across a case synopsis and think - can they do that? This was one of those times.

Douglas Suing isn't suing. He's actually appealing, though many would say that a man convicted of manufacturing and possessing child porn isn't exactly appealing. (Sorry. I'll stop.)

The right to confront adverse witnesses? "I don't think that applies here, Your Honor."

Ricky Lee Johnson was on supervised release after serving a 15-month sentence for conspiracy to possess stolen mail. Unfortunately for him, he was later arrested for second-degree forgery and theft of property. He also failed a drug test and skipped out on rehab.

It should've been a simple revocation hearing, but alas, the government's attorney failed to subpoena any witnesses or produce evidence, other than a police report. Instead, with the court's permission, the probation officer read the police report. The defense attorney objected:

Travis Folkerts is a mentally impaired man with an IQ of 50. In 2008, he was living on his own, with supervision during most waking hours. In May of that year, a neighbor reported that Travis had engaged in inappropriate sexual conduct with her underage son.

The initial responding officer, knowing of Travis’ limitations, read him his Miranda rights and asked him a few questions, resulting in an “Information Only” report to Officer Schneider, who followed up one day later.

Schneider again read Travis his rights and more fully explained them. Though he was aware of Travis’ impairment, he was not aware of its full extent and believed that Travis understood him. The two then headed to the police station, where Travis was interrogated in a conference room instead of the traditional, more intimidating interview room.

Some people would be flattered by Kim Hutterer's affection. Wait, who are we kidding? This lady is a bit nuts.

Back in the early 1990s, she was investigated by Agent Dean Scheidler of the FBI in connection to threats against a commercial airliner. While awaiting trial, she carved "death to Scheidler" on the seat in her cell. While in prison for that offense, she assaulted and threatened to kill a prison guard. When she was released, she continued to harass the prison guard though personal letters and calls to his work and home.

She ended up in custody again for unrelated terroristic threats in 2010. During that stint, as well as after her release, she sent sexually-explicit, threatening, and harassing letters, telephone calls, and text messages to Agent Scheidler's work and home. Some letters included a picture of a bloody knife with his name on it while others described her plans to "kill [him], sleep with him, and commit other grotesque acts."

Douglas Wayne Tarnow was convicted of aggravated sexual assault and sentenced to 480 months in prison. He’s a wee bit miffed, as most people destined to spend 40 years in prison would be. Then again, he deserves it.

His conviction stems from a violent sexual assault upon his girlfriend. He beat her in a jealous rage, forcibly sexually assaulted her, and then beat her again, splitting open her chin and causing her to bleed from her vagina. She escaped his clutches when the couple went to get STD tests and ran into a pair of police officers.

Tarnow challenges his conviction by challenging the sufficiency of the evidence, arguing that propensity evidence was wrongly admitted, and that a jury instruction on simple assault should have been provided to the jurors.