Recently in Criminal Law Category

In a prosecution for bank fraud and tax evasion, district court's exclusion of defense evidence on the ground that defendant failed to comply with the reciprocal discovery requirement of Fed. R. Crim. P. 16(c) is affirmed as the district court did not err in excluding the evidence, but even if the court did err, it was harmless error because the excluded evidence would not have created reasonable doubt.     

Read US v. Hardy, No. 08-5421

Appellate Information

Argued: October 13, 2009

Decided and Filed: November 20, 2009

Judges

Opinion by Senior District Judge Hood

Counsel

For Appellant:   David W. Camp, Law Offices of David W. Camp

For Appellee:  R. Leigh Grinalds, Assistant US Attorney

Defendant's sentence to 28 months' imprisonment for possession with intent to distribute cocaine base is affirmed as the district court properly attributed six criminal history points to defendant's prior convictions and two additional points under U.S.S.G. section 4A1.1(e) because the instant offense occurred less than two years after his release from his juvenile confinement, for a total of eight criminal history points and a sentencing guidelines range of 24 to 30 months.    

Read US v. Thompson, No. 08-3760

Appellate Information

Argued: October 13, 2009

Decided and Filed: November 20, 2009

Judges

Opinion by Senior District Judge Hood

Counsel

For Appellant:   Mark R. DeVan, Berkman, Gordon, Murray & DeVan

For Appellee:   Laura McMullen Ford, Assistant US Attorney

District court's grant of petition for habeas relief on the ground that the trial court violated the Double Jeopardy Clause by convicting defendant for both the felon in possession statute and the felony firearm statute is reversed as current jurisprudence allows for multiple punishment for the same offense provided the legislature has clearly indicated its intent to so provide and recognizes no exception for necessarily included or overlapping offenses.     

Read White v. Howes, No. 08-1458

Appellate Information

Argued: June 19, 2009

Decided and Filed: November 20, 2009

Judges

Opinion by Circuit Judge White

Counsel

For Appellant:   Brad H. Beaver, Office of the Michigan Attorney General

For Appellee:   C. Mark Pickrell, Waller Lansden Dortch & Davis, LLP

In a second degree murder case, district court's denial of defendant's petition for habeas relief is vacated and remanded for an evidentiary proceeding to determine whether: 1) the trial closure during the testimony of three prosecution witnesses was justifiable; 2) trial counsel was constitutionally ineffective for failing to object to the closure; and 3) the cause and prejudice components of defendant's public trial claim can be satisfied.     

Read Johnson v. Sherry, No. 08-1322

Appellate Information

Argued: August 7, 2009

Decided and Filed: November 13, 2009

Judges

Opinion by Circuit Judge Clay

Counsel

For Appellant:  Elizabeth L. Jacobs, Law Office, Detroit, Michigan

For Appellee:   Andrew I. Shirvell, Office of the Michigan Attorney General, Lansing, Michigan

District court's orders releasing defendant from prison and barring his reprosecution on the ground that the State took too long to conduct a second trial are reversed and remanded with instructions to dismiss the petition for lack of jurisdiction as no federal power authorized the district court to release the defendant from pretrial detention on a legitimate state charge, or to bar his reprosecution.      

Read Eddleman v. McKee, No. 08-1093

Appellate Information

Argued: June 10, 2009

Decided and Filed: November 12, 2009

Judges

Opinion by Circuit Judge Kethledge

Counsel

For Appellant:  B. Eric Restuccia, Office of the Michigan Attorney General, Lansing, Michigan

For Appellee:  Andrew N. Wise, Federal Defender Office, Detroit, Michigan

District court's denial of defendant's motion to dismiss his indictment for conspiracy to commit computer fraud is affirmed where: 1) defendant did not properly preserve his factual specificity of the indictment argument; 2) defendant failed to establish that the face of the indictment failed to charge the elements of a federal offense; 3) no violation of the statute of limitations occurred as the indictment was returned within five years of the last act in furtherance of the conspiracy; 4) defendant failed to demonstrate that he was actually prejudiced by a pre-indictment delay; and 5) the district court committed no error in denying defendant's motion to dismiss based upon entrapment as a matter of law.   

Read US v. Schaffer, No. 09-3053

Appellate Information

Argued: July 29, 2009

Decided and Filed: November 12, 2009

Judges

Opinion by District Judge Vantatenhove

Counsel

For Appellant:  Richard G. Lillie, Lillie & Holderman, Cleveland, Ohio

For Appellee:  Daniel R. Ranke, Assistant US Attorney, Cleveland, Ohio

In habeas proceedings arising following the imposition of a 40-year maximum sentence and a 225-month minimum for first-degree criminal sexual conduct involving a person under the age of thirteen and various other offenses, denial of the petition is affirmed where: 1) there was no jury-trial right violation because judge-found facts did not increase defendant's sentence beyond the statutory maximum for Apprendi purposes; and 2) the district court properly rejected defendant's claim that the trial court violated his Fifth and Sixth Amendment rights by sentencing him more harshly for insisting on going to trial and for not explicitly admitting his guilt. 

Read Chontos v. Berghuis, No. 08-1031

Appellate Information

Argued: June 11, 2009

Decided and Filed: November 10, 2009

Judges

Opinion by Circuit Judge Cook

Counsel

For Appellant:  Rosemary Gordon Panuco, Law Office, Tucson, Arizona

For Appellee:  Janet A. Van Cleve, Michigan Attorney General's Office, Lansing, Michigan

An Iraqi petitioner's request for review of BIA's denial of his application for asylum and related relief is vacated and remanded as the immigration judge never made a finding of fact regarding the length of time that petitioner actually served in prison for his assault conviction, and should he be found to have served less than one year in prison, he should be held not to be an aggravated felon and not removable.     

Read Shaya v. Holder, No. 08-4619

Appellate Information

Argued: October 6, 2009

Decided and Filed: November 9, 2009

Judges

Opinion by Circuit Judge Martin

Counsel

For Appellant:  John W. Blakeley, United States Department of Justice, Washington, DC.

For Appellee:  Mark Jacob Thomas, Mark Jacob Thomas & Associates, Chicago, Illinois.

In a capital habeas case involving a petitioner convicted of aggravated murder of his son and sentenced to death, denial of the petition is affirmed where: 1) defendant's Brady claim is rejected as there is no reasonable probability that, had a certain police report been disclosed, the outcome would have been different; 2) defendant's ex post facto and due process violation claims are rejected; 3) defendant's ineffective assistance of counsel during the penalty phase claim is rejected; 4) defendant's Fifth Amendment violation claim based on prosecution's comment on his failure to testify is rejected; and 5) district court did not err in concluding that defendant procedurally defaulted two of his ineffective assistance of counsel claims. 

Read Webb v. Mitchell, No. 06-4606

Appellate Information

Argued: June 10, 2009

Decided and Filed: November 5, 2009

Judges

Opinion by Circuit Judge Sutton

Counsel

For Appellant:  Keith A. Yeazel, Law Office, Columbus, Ohio

For Appellee:  Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio

District court's conviction of defendant for aggravated robbery and aggravated murder and sentence of death is affirmed in part as to the conviction, but reversed in part as to the sentence where petitioner's trial attorney did not provide his client with effective assistance of counsel during the penalty phase of a second trial, specifically, by failing to meaningfully investigate and to present any mitigation evidence. 

Read Johnson v. Mitchell, No. 00-3350

Appellate Information

Argued: December 6, 2007

Decided and Filed: November 4, 2009

Judges

Opinion by Circuit Judge Daughtrey

Counsel

For Appellant:  Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, Ohio

For Appellee:  Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio