Federal Public Defender - Southern District of Ohio


Newsletter: Directions: (Click office name for mapquest directions) Columbus Office (Headquarters) 10 W. Broad St. Suite 1020 Columbus, OH 43215 P: 614-469-2999 F: 614-469-5999 Cincinnati Office 36 East 7th St. Suite 2000 Cincinnati, OH 45202 P: 513-929-4834 F: 513-929-4842 Dayton Office 1 South Main St. Suite 490 Dayton, OH 45402 P: 937-225-7687 F: 937-225-7688 7	Our Mission Members of our organization provide our clients with legal services of the highest quality. We zealously represent the human worth, dignity and interest of our clients with courage, devotion and uncompromised advocacy. We uphold the rights of our clients while dealing ethically with the court system, representatives of the criminal justice system and our clients. Sixth Circuit News Adam Walsh Memo - SORNA AND THE SEX OFFENDER'S DUTY TO REGISTER Below are summaries of recent, notable Supreme Court and/or Sixth Circuit cases. For a more comprehensive review of cases, “click” on the link for Precedential Value, our office’s periodic newsletter. • 404(b) - Absence of Mistake/Intent U.S. v. Bell, 06-6248 (2/14/08) Defendant was charged with possession of large amounts of marijuana and crack with intent to distribute based upon narcotics that were found in his girlfriend's residence. During the trial, defendant denied knowing the drugs were there or that they were his. The district court permitted the government to introduced four prior state drug distribution convictions in order to show absence of mistake or accident, and intent. Upon his conviction, defendant appealed. Holding: The court held that the prior convictions were not properly admitted to show either absence of mistake, or intent. Regarding absence of mistake, the court held that defendant had raised that defense at trial. To the contrary, his defense was that he did not know the drugs were there and they were not his. Thus, absence of mistake or accident was not at issue in the case. Regarding intent, although the issue of intent was an element that the government was required to prove, the prior convictions were not sufficiently similar temporally or in terms of modus operandi in order to support their admissibility. Therefore, the convictions were not admissible to prove intent. The court further held that the probative value of the evidence was substantially outweighed by its prejudicial effect under FRE 403, and that the admission of the evidence was not harmless. Accordingly, defendant's conviction was reversed. • Fed. R. Crim. P. 16(a)(1)(G) - Discovery U.S. v. Davis, 06-5883 (1/30/08) Defendant was charged with two counts of drug trafficking and the government notified defendant that it intended to introduce expert chemist testimony to establish the weight of the drug, and that the drug was crack cocaine. Defendant specifically requested, pursuant to Rule 16(a)(1)(G), reports and results showing the tests and examinations conducted by the expert. Prior to trial, the government provided a letter to defendant which stated only that the chemist's testimony would be based upon his training, experience and numerous tests conducted. At trial, defendant objected to the expert testimony upon the basis that the government did not comply with Rule 16. At that time, the government obtained from the expert the notes which reflected the tests conducted and turned them over to defendant. Defendant moved to exclude the expert, and declined the district court's invitation for a continuance to prepare. The district court denied defendant's motion, defendant was convicted, and he appealed. Holding: The court first held that the government violated Fed. R. Crim. P. 16(a)(1)(G) by failing to obtain and produce the "bases and reasons" for the expert opinions prior to trial. Second, the court held that a district court must consider several factors in determining whether to suppress evidence as the result of a discovery violation: (1) the reasons for the delay in production and whether the government acted intentionally or in bad faith; (2) the degree of prejudice to defendant; and (3) whether the prejudice could be cured by granting a continuance, or some other less severe sanction. The court found that defendant's act of declining a continuance was tantamount to an agreement that the verdict would not have been different had the government timely complied with Rule 16. Further, the court noted that defendant offered no other reasonable alternative to suppression of the evidence. Thus, the conviction was affirmed. • Due Process - Right to Indictment U.S. v. Thompson, 06-6233 (2/11/08) Defendant pled guilty to drug trafficking and carrying a firearm in relation to drug trafficking. While defendant's indictment charged him only with "carrying and using" the firearm, the codefendant was charged in a separate count with carrying and discharging a different firearm. At sentencing, the district court imposed the 10 year mandatory minimum sentence to defendant for the codefendant's discharge of the other firearm. Defendant appealed. Holding: The court held that the district court's application of the 10 year mandatory sentence to defendant violated defendant's due process rights to be indicted by the grand jury and his Sixth Amendment right to fair notice of the charge against him. Specifically, because the codefendant was charged with discharging a gun, and defendant was charged only with carrying and using a separate gun, the indictment failed to put defendant on notice that he could be held liable for the codefendant's gun, or that he could be responsible for the discharge of the firearm. The court emphasized that the government could simply have indicted both defendants with a general charge under 18 § 924(c) in both counts, without reference to a specific gun or a discharge. But because the indictment did make such references, defendant's rights to fair notice were deprived and his sentence was vacated. • Booker - Dismissed Conduct U.S. v. Conway, 06-4083 (1/23/08) Defendant was charged with possession of a sawed-off shotgun, felon in possession of a firearm, and felon in possession of ammunition. Pursuant to a plea agreement, defendant pled guilty to the possession of ammunition charge in return for dismissal of the two charges related to the sawed-off shotgun. At sentencing, the district court imposed a 12 level enhancement for defendant's possession of the sawed-off shotgun. Defendant argued on appeal that the Sixth Amendment right to jury trial prohibits the district court's consideration of dismissed conduct at sentencing. Holding: The court held that the central premise of plea agreements is that they waive a defendant's Sixth Amendment right to a jury trial. Consistent with that premise, the court found that defendant's plea agreement made it clear that the district court would determine defendant's sentence and whether he possessed the shotgun or not. The court emphasized that the plea agreement (1) acknowledged Booker and the non-mandatory nature of the guidelines, (2) indicated defendant's awareness the he could receive up to the statutory maximum, and (3) acknowledged that defendant contested that he possessed the shotgun. These provisions indicated that defendant knew that the plea agreement placed the issue of the shotgun possession squarely within the district court's discretion at sentencing. Thus, the sentence was affirmed. • Batson U.S. v. Odeneal, 06-5885 (2/22/08) Defendant was charged with conspiracy to distribute narcotics and during his trial, the prosecutor used peremptory strikes to remove two of the three remaining African-Americans in the venire. Defendant challenged one of the strikes under Batson, and the government indicated that it struck the juror because she sat on an earlier jury and voted for acquittal, and because she was recently divorced. Defendant countered that a white juror on the panel sat on the same earlier jury, voted for acquittal, and was not removed by the prosecutor. Further, the questionnaire indicating the juror's divorce was over a year old, and the prosecutor did not ask the juror about the divorce during voir dire. The district court found no purposeful discrimination and denied defendant's Batson challenge. Upon his conviction, defendant appealed. Holding: A three-step analysis is utilized in evaluating a Batson challenge: (1) the opponent of the strike must make out a prima facie showing of racial discrimination; (2) the burden then shifts to the proponent to come forward with a race-neutral explanation; and (3) the court must decide whether the opponent has proven purposeful racial discrimination considering the totality of the evidence. In the case, the court found that defendant made a prima facie showing and that the prosecutor offered a race-neutral explanation. The court concluded, however, that the strike of the challenged black juror was a pretext for discrimination. Defendant's explanation showed that the prosecution failed to strike a similarly situated white juror who also voted for acquittal in the prior trial. Further, the prosecutor's concern about the divorce was belied by the failure to inquire about the divorce during voir dire. Accordingly, the court found that the striking of the black juror by the government was purposeful discrimination, the conviction was reversed, and the case remanded for a new trial. • Reasonableness of Sentence U.S. v. Vonner, 05-5295 (2/7/08) Defendant was convicted of drug trafficking and at sentencing the district court determined that the applicable guideline range was 108-135 months. Defendant requested a downward variance from the range based upon his neglected and abusive childhood, his 14-month presentence confinement, his assistance to the government, and the mitigating circumstances surrounding his cocaine sales. The district court denied the request without much explanation, and sentenced defendant to 117 months. Before adjourning, the court asked defendant's counsel if he had any objection to the sentence pronounced, and counsel replied in the negative. Defendant appealed. The original Sixth Circuit panel found that the sentence was procedurally unreasonable because the district court failed to adequately respond to defendant's requests for a downward variance. Upon the government's request, the court agreed to rehear the case en banc. Holding: Relying on the court's prior ruling in United States v. Bostic, the en banc court held that defendant's failure to object to the district court's refusal to consider his arguments for a downward variance, when afforded the opportunity to do so by the district court, subjected defendant's appeal to plain error review. Applying plain error review, the court held that, although the district court's sentencing findings were not "ideal," the court committed no plain error in its determinations. The court found that the district court did not specifically address each of defendant's requests for a downward variance, but it did mention the factors under 18 USC § 3553(a) generally and showed that it "understood" defendant's arguments. As such, the district court's sentencing procedure did not constitute plain error requiring reversal of the sentence. Additionally, because the sentence fell within a correctly computed guideline range, the court applied the presumption of reasonableness and concluded that defendant's sentence was not unreasonably long. The court found that the record offered ample reasons to establish that defendant's case was a "typical" one and thus deserving the sentence imposed by the district court. Therefore, the original panel ruling was vacated, and defendant's sentence was affirmed. The Office of the Federal Public Defender, Southern District of Ohio, operates under authority of the Criminal Justice Act of 1964 (as amended), 18 U.S.C. § 3006A (CJA). We provide defense services to individuals who are financially unable to obtain adequate representation in Federal criminal cases, appeals, and habeas corpus matters. A person’s eligibility for defender services is determined by the federal court. Attorneys of this office may not represent individuals without an appointment from the court, nor may they engage in the private practice of law.
Contact Us \| ©2005 Federal Public Defender of Southern Ohio

Directions:
(Click office name for mapquest directions)

Columbus Office
(Headquarters)
10 W. Broad St.
Suite 1020
Columbus, OH 43215
P: 614-469-2999
F: 614-469-5999

Cincinnati Office
36 East 7th St.
Suite 2000
Cincinnati, OH 45202
P: 513-929-4834
F: 513-929-4842

Dayton Office
1 South Main St.
Suite 490
Dayton, OH 45402
P: 937-225-7687
F: 937-225-7688

Members of our organization provide our clients with legal services of the highest quality. We zealously represent the human worth, dignity and interest of our clients with courage, devotion and uncompromised advocacy. We uphold the rights of our clients while dealing ethically with the court system, representatives of the criminal justice system and our clients.

Adam Walsh Memo - SORNA AND THE SEX OFFENDER'S DUTY TO REGISTER

Below are summaries of recent, notable Supreme Court and/or Sixth Circuit cases. For a more comprehensive review of cases, “click” on the link for Precedential Value, our office’s periodic newsletter.

• 404(b) - Absence of Mistake/Intent

U.S. v. Bell, 06-6248 (2/14/08)

Defendant was charged with possession of large amounts of marijuana and crack with intent to distribute based upon narcotics that were found in his girlfriend's residence. During the trial, defendant denied knowing the drugs were there or that they were his. The district court permitted the government to introduced four prior state drug distribution convictions in order to show absence of mistake or accident, and intent. Upon his conviction, defendant appealed.

Holding: The court held that the prior convictions were not properly admitted to show either absence of mistake, or intent. Regarding absence of mistake, the court held that defendant had raised that defense at trial. To the contrary, his defense was that he did not know the drugs were there and they were not his. Thus, absence of mistake or accident was not at issue in the case. Regarding intent, although the issue of intent was an element that the government was required to prove, the prior convictions were not sufficiently similar temporally or in terms of modus operandi in order to support their admissibility. Therefore, the convictions were not admissible to prove intent. The court further held that the probative value of the evidence was substantially outweighed by its prejudicial effect under FRE 403, and that the admission of the evidence was not harmless. Accordingly, defendant's conviction was reversed.

• Fed. R. Crim. P. 16(a)(1)(G) - Discovery

U.S. v. Davis, 06-5883 (1/30/08)

Defendant was charged with two counts of drug trafficking and the government notified defendant that it intended to introduce expert chemist testimony to establish the weight of the drug, and that the drug was crack cocaine. Defendant specifically requested, pursuant to Rule 16(a)(1)(G), reports and results showing the tests and examinations conducted by the expert. Prior to trial, the government provided a letter to defendant which stated only that the chemist's testimony would be based upon his training, experience and numerous tests conducted. At trial, defendant objected to the expert testimony upon the basis that the government did not comply with Rule 16. At that time, the government obtained from the expert the notes which reflected the tests conducted and turned them over to defendant. Defendant moved to exclude the expert, and declined the district court's invitation for a continuance to prepare. The district court denied defendant's motion, defendant was convicted, and he appealed.

Holding: The court first held that the government violated Fed. R. Crim. P. 16(a)(1)(G) by failing to obtain and produce the "bases and reasons" for the expert opinions prior to trial. Second, the court held that a district court must consider several factors in determining whether to suppress evidence as the result of a discovery violation: (1) the reasons for the delay in production and whether the government acted intentionally or in bad faith; (2) the degree of prejudice to defendant; and (3) whether the prejudice could be cured by granting a continuance, or some other less severe sanction. The court found that defendant's act of declining a continuance was tantamount to an agreement that the verdict would not have been different had the government timely complied with Rule 16. Further, the court noted that defendant offered no other reasonable alternative to suppression of the evidence. Thus, the conviction was affirmed.

• Due Process - Right to Indictment

U.S. v. Thompson, 06-6233 (2/11/08)

Defendant pled guilty to drug trafficking and carrying a firearm in relation to drug trafficking. While defendant's indictment charged him only with "carrying and using" the firearm, the codefendant was charged in a separate count with carrying and discharging a different firearm. At sentencing, the district court imposed the 10 year mandatory minimum sentence to defendant for the codefendant's discharge of the other firearm. Defendant appealed.

Holding: The court held that the district court's application of the 10 year mandatory sentence to defendant violated defendant's due process rights to be indicted by the grand jury and his Sixth Amendment right to fair notice of the charge against him. Specifically, because the codefendant was charged with discharging a gun, and defendant was charged only with carrying and using a separate gun, the indictment failed to put defendant on notice that he could be held liable for the codefendant's gun, or that he could be responsible for the discharge of the firearm. The court emphasized that the government could simply have indicted both defendants with a general charge under 18 § 924(c) in both counts, without reference to a specific gun or a discharge. But because the indictment did make such references, defendant's rights to fair notice were deprived and his sentence was vacated.

• Booker - Dismissed Conduct

U.S. v. Conway, 06-4083 (1/23/08)

Defendant was charged with possession of a sawed-off shotgun, felon in possession of a firearm, and felon in possession of ammunition. Pursuant to a plea agreement, defendant pled guilty to the possession of ammunition charge in return for dismissal of the two charges related to the sawed-off shotgun. At sentencing, the district court imposed a 12 level enhancement for defendant's possession of the sawed-off shotgun. Defendant argued on appeal that the Sixth Amendment right to jury trial prohibits the district court's consideration of dismissed conduct at sentencing.

Holding: The court held that the central premise of plea agreements is that they waive a defendant's Sixth Amendment right to a jury trial. Consistent with that premise, the court found that defendant's plea agreement made it clear that the district court would determine defendant's sentence and whether he possessed the shotgun or not. The court emphasized that the plea agreement (1) acknowledged Booker and the non-mandatory nature of the guidelines, (2) indicated defendant's awareness the he could receive up to the statutory maximum, and (3) acknowledged that defendant contested that he possessed the shotgun. These provisions indicated that defendant knew that the plea agreement placed the issue of the shotgun possession squarely within the district court's discretion at sentencing. Thus, the sentence was affirmed.

• Batson

U.S. v. Odeneal, 06-5885 (2/22/08)

Defendant was charged with conspiracy to distribute narcotics and during his trial, the prosecutor used peremptory strikes to remove two of the three remaining African-Americans in the venire. Defendant challenged one of the strikes under Batson, and the government indicated that it struck the juror because she sat on an earlier jury and voted for acquittal, and because she was recently divorced. Defendant countered that a white juror on the panel sat on the same earlier jury, voted for acquittal, and was not removed by the prosecutor. Further, the questionnaire indicating the juror's divorce was over a year old, and the prosecutor did not ask the juror about the divorce during voir dire. The district court found no purposeful discrimination and denied defendant's Batson challenge. Upon his conviction, defendant appealed.

Holding: A three-step analysis is utilized in evaluating a Batson challenge: (1) the opponent of the strike must make out a prima facie showing of racial discrimination; (2) the burden then shifts to the proponent to come forward with a race-neutral explanation; and (3) the court must decide whether the opponent has proven purposeful racial discrimination considering the totality of the evidence. In the case, the court found that defendant made a prima facie showing and that the prosecutor offered a race-neutral explanation. The court concluded, however, that the strike of the challenged black juror was a pretext for discrimination. Defendant's explanation showed that the prosecution failed to strike a similarly situated white juror who also voted for acquittal in the prior trial. Further, the prosecutor's concern about the divorce was belied by the failure to inquire about the divorce during voir dire. Accordingly, the court found that the striking of the black juror by the government was purposeful discrimination, the conviction was reversed, and the case remanded for a new trial.

• Reasonableness of Sentence

U.S. v. Vonner, 05-5295 (2/7/08)

Defendant was convicted of drug trafficking and at sentencing the district court determined that the applicable guideline range was 108-135 months. Defendant requested a downward variance from the range based upon his neglected and abusive childhood, his 14-month presentence confinement, his assistance to the government, and the mitigating circumstances surrounding his cocaine sales. The district court denied the request without much explanation, and sentenced defendant to 117 months. Before adjourning, the court asked defendant's counsel if he had any objection to the sentence pronounced, and counsel replied in the negative. Defendant appealed. The original Sixth Circuit panel found that the sentence was procedurally unreasonable because the district court failed to adequately respond to defendant's requests for a downward variance. Upon the government's request, the court agreed to rehear the case en banc.

Holding: Relying on the court's prior ruling in United States v. Bostic, the en banc court held that defendant's failure to object to the district court's refusal to consider his arguments for a downward variance, when afforded the opportunity to do so by the district court, subjected defendant's appeal to plain error review. Applying plain error review, the court held that, although the district court's sentencing findings were not "ideal," the court committed no plain error in its determinations. The court found that the district court did not specifically address each of defendant's requests for a downward variance, but it did mention the factors under 18 USC § 3553(a) generally and showed that it "understood" defendant's arguments. As such, the district court's sentencing procedure did not constitute plain error requiring reversal of the sentence.

Additionally, because the sentence fell within a correctly computed guideline range, the court applied the presumption of reasonableness and concluded that defendant's sentence was not unreasonably long. The court found that the record offered ample reasons to establish that defendant's case was a "typical" one and thus deserving the sentence imposed by the district court. Therefore, the original panel ruling was vacated, and defendant's sentence was affirmed.

The Office of the Federal Public Defender, Southern District of Ohio, operates under authority of the Criminal Justice Act of 1964 (as amended), 18 U.S.C. § 3006A (CJA). We provide defense services to individuals who are financially unable to obtain adequate representation in Federal criminal cases, appeals, and habeas corpus matters. A person’s eligibility for defender services is determined by the federal court. Attorneys of this office may not represent individuals without an appointment from the court, nor may they engage in the private practice of law.

Directions: (Click office name for mapquest directions)

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