I.I. Specific Offenses >>

II. Sentencing Guidelines

III. Evidence

IV. Fourth Amendment

V. Fifth Amendment

VI. Sixth Amendment

VII. Other Constitutional Rulings

VIII. Defenses

IX. Plea & Sentencing Hearings

X. Jury Issues

XI. Probation & Supervised Release

XII. Appeal

XIII. Post-Conviction Remedies

I. Specific Offenses

Supreme Court Decisions

  Sixth Circuit Decisions

I. Specific Offenses

    • 8 U.S.C. § 1324(a) - Transporting Aliens

 U.S. v. Stonefish, 03-2538 (3/30/05)

    > Defendant was observed late at night by INS agents pulling into a parking lot at the Canadian border on multiple occasions and flashing his headlights. Later, the agents observed Chinese nationals get off of a boat, and wait in the shadows until defendant again returned and picked them up in his car. Defendant then took a “circuitous “ route to the freeway, where he was stopped by the agents. Defendant was indicted for transporting illegal aliens, and was convicted after trial. Defendant’s defense at trial, and later on appeal, was that he did not know the passengers were illegal, but that he was just being a humanitarian.

    * Holding: In discerning a defendant’s intent in transporting aliens, courts may consider whether the defendant was compensated, what efforts defendant took to conceal or harbor the aliens, and whether the aliens were friends, co-workers or companions, or merely human cargo. Under the circumstances, the court held that there was sufficient evidence to infer that defendant knew the aliens were illegal, and affirmed the jury’s verdict.



   • 8 U.S.C. § 1326 - Illegal Reentry

 U.S. v. Palacios-Suarez, 04-4187 (7/22/05)

    > Defendant was convicted of illegal reentry after deportation, and at sentencing the district court determined that defendant had two prior convictions on his record that qualified as aggravated felonies under § 1326, thus increasing defendant’s statutory maximum from 10 to 20 years. The two prior convictions were state felony drug possession offenses that would not have been felonies under federal law. On appeal, defendant argued that the prior drug possession offenses should not qualify as aggravated felonies.

    * Holding: The court held that a prior state conviction for felony drug possession only qualifies as an “aggravated felony” under § 1326(b)(2) (and U.S.S.G. § 2L1.2(b)(1)(C)) if the prior offense could have been charged as a felony under the federal Controlled Substances Act (CSA). Because defendant’s prior state offenses would not have been felonies under the CSA, and because they did not involve drug trafficking, the court ruled that the offenses did not qualify as aggravated felonies, and the case was remanded for resentencing.



    • 8 USC § 1326(b)(2) - Illegal Reentry

 U.S. v. Zuniga-Guerrera, 05-6457 (8/23/06)

    > In 1995, Defendant committed a drug conspiracy offense, and in September of 1996 he pled guilty to using a telephone to facilitate the offense. In April of 1996, between the commission of the offense and defendant’s guilty plea, the law on deportation of aliens changed with the passage of the AEDPA such that aliens were no longer eligible for discretionary waiver of deportation if they had been convicted of an aggravated felony. As a result, defendant was subsequently deported, but he returned to the U.S. in 2004. He was then arrested and convicted of illegal reentry under § 1326. On appeal, defendant claimed that the AEDPA should not have been applied retroactively to permit his prior deportation and that the use of a telephone to commit a drug offense should not qualify as an aggravated felony.

    * Holding: In INS v. St. Cyr, the Supreme Court held that it was improper to apply a law (in that case the IIRIRA) that diminished a defendant’s rights to contest deportation based upon a conviction, where the defendant had already pled guilty to the offense before passage of the law. In this case, the court refused to extend the St. Cyr holding where defendant did not enter his plea of guilty to the offense until after the new deportation law (the AEDPA) had gone into force. Thus, the AEDPA was properly applied to defendant’s prior deportation.

            Further, the court held that use of a telephone to commit a drug offense does qualify as an aggravated felony under the AEDPA. Accordingly, defendant’s sentence for illegal entry was affirmed.



   • 15 USC § 78/18 USC § 371-Insider Trading

 U.S. v. Hughes, 06-3024 (10/26/07)

    > Defendants were a husband and wife who received an insider tip about the buyout of a small company. Shortly before the buyout occurred, defendants purchased a large amount of stock in the company, and then sold it at a substantial profit immediately after the buyout. Defendants were charged, among other offenses, with insider trading under 15 USC § 78 and conspiracy under 18 USC § 371. At trial, defendants and the tipster all testified that no insider information was shared with defendants. The government introduced circumstantial evidence which showed that defendants met with the tipster prior to the buyout, and that they bought and sold large amounts of stock surrounding the buyout. Defendants were convicted and appealed, challenging the sufficiency of the evidence.

    * Holding: In order to prove conspiracy, the government must show (1) the existence of an agreement to violate the law, (2) knowledge and intent; and (3) an overt act. To prove insider trading, the government must prove (1) a scheme to defraud in connection with the purchase or sale of stock, (2) intent to defraud, and (3) use of a means of interstate commerce in connection with the purchase or sale. Additionally, in regard to defendants who are tippees, the government must show that they (1) received material, confidential information (2) knowledge that the tipster violated a fiduciary duty, and (3) knowing and wilful purchase of stock based on the information. In the case, the court found that the circumstantial evidence was sufficient to show that defendants participated in the conspiracy and that they committed insider trading. Accordingly, the conviction was affirmed.



    • 18 USC § 241 - Conspiracy - Civil Rights

 U.S. v. Conaster, 06-5694 (2/4/08)

    > Defendant was a jail guard who was charged with conspiracy to violate the rights of detainess and prisoners of the county jail. At trial, the government proved defendant’s involvement largely through the testimony of three cooperating defendants. Upon his conviction, defendant appealed and challenged the sufficiency of the evidence that he participated in the conspiracy.

    * Holding: In order to establish a conspiracy, no proof of a formal agreement is required; a “tacit or mutual understanding” is all that is necessary. The court found ample evidence that defendant participated in the conspiracy. The codefendants testified that defendant was present during inmate beatings, falsified incident reports, and participated in conversations with others about inmate beatings. Defendant’s argument that the cooperating-defendant testimony was not believable was not a proper challenge to the sufficiency of the evidence, but instead an attack on the credibility of the witnesses. Further, the court held that defendant’s acquittal on substantive counts did not require reversal of his conviction for conspiracy. In a § 241 conspiracy case, the government need not prove that defendant himself committed any of the overt acts, only that some member of the conspiracy committed the overt acts. Thus, defendant’s conviction was affirmed.



    • 18 USC § 242 - Excessive Force

 U.S. v. Budd, 05-4098 (8/13/07)

    > Defendant was a county sheriff who was charged with multiple counts of using excessive force against pretrial detainees and sentenced inmates in violation of the prisoners’ Fourteenth and Eighth Amendments rights. After being convicted at trial, defendant appealed and argued that the evidence was insufficient to sustain the verdicts.

    * Holding: In order to sustain a conviction for a § 242 violation, the government must show excessive force against a prisoner that amounts to punishment, in violation of the Fourteenth Amendment for pretrial detainees, or in violation of the Eighth Amendment in regard to sentenced inmates. In the absence of an “expressed intent to punish,” the issue of defendant’s guilt turns on whether the practice is “reasonably related to a legitimate government objective.” Further, a prisoner’s injuries must be more than de minimis in order to support a constitutional violation. In regard to the two counts at issue, the court found that credible evidence supported the facts that defendant had slammed a prisoner’s head into doors, a table, and a wall. Further, defendant slammed a prisoner into a steel window frame and stood on his back. Both inmates suffered scratching and bruising. The court found these circumstances sufficient to support the jury verdicts, and accordingly defendant’s convictions were affirmed.



    • 18 USC § 371 - Conspiracy

 U.S. v. Blackwell, 05-4588 (8/29/06)

    > Defendant was charged with one count of conspiracy to commit insider trading and one count of conspiracy to obstruct justice, both under § 371. Defendant was convicted on both counts and argued on appeal that the evidence was insufficient in both instances to show the existence of an agreement.

    * Holding: To prove conspiracy, the government must show (1) the existence of an agreement to violate the law, (2) knowledge and intent to join the conspiracy, and (3) an overt act constituting actual participation in the conspiracy. Regarding the insider trading conspiracy, the court found sufficient evidence of an agreement because defendant had agreed with his wife to encourage others to buy stock in his company and gave, or loaned, money to such individuals to buy the stock. Regarding the obstruction conspiracy, the court ruled that sufficient evidence established that defendant and his wife agreed to lie to the SEC and to delete names from documents before turning them over. Accordingly, the convictions were affirmed.



    • 18 USC § 371 - Conspiracy

 U.S. v. Hunt, 06-6300 (4/11/08)

    > Defendant was a doctor who was charged with conspiracy to commit health care fraud. For defendant’s part in the conspiracy, he misrepresented that he had seen patients and determined that carotid artery ultrasound testing was medically necessary. The codefendant would then perform the testing and bill the insurance company or medicare for the services. Defendant was convicted at trial and he appealed.

    * Holding: In order to establish a conspiracy under § 371, the government must prove an agreement between two or more people to act together in committing an offense, and the commission of an overt act in furtherance of the offense. The agreement may be “a tacit or mutual understanding among the parties.” In the case, the court found that, although there was no formal agreement, sufficient evidence supported a tacit agreement between defendant and the codefendant to defraud medicare and private insurance. Defendant knew that the misrepresentations that he made were being used by the codefendant to submit for insurance benefits. Defendant often signed the orders for treatment after the tests had already been performed, and he was paid by the codefendant for each order he signed. Accordingly, defendant’s conviction was affirmed.



    • 18 U.S.C. § 513(a) - Counterfeit Securities

 U.S. v. Blood, 04-5101 (1/24/06)

    > Defendants were convicted for possession of counterfeit securities with intent to deceive another, pursuant to § 513(a). The statute provides: “Whoever . . . possesses a counterfeited security of a State or political subdivision thereof or of an organization . . . with intent to deceive another person, organization, or government” shall be punished as stated. Defendants argued on appeal that, because the government had proven only that defendants intended to deceive the entities that purportedly issued the counterfeit securities, the government had not proven that defendants had intended to deceive “another.”

    *Holding: Deciding an open question in the Sixth Circuit, the court held that the “intent to deceive another” element of § 513(a) includes the intent to deceive the purported issuer of the counterfeit securities. Thus, defendant’s possession of a counterfeit security from Union Bank, with the intent to deceive Union Bank, was sufficient for conviction. The court further held that proof of an “intent to deceive” requires only that the government prove that a defendant intended to mislead another into believing something that was not true. The court distinguished “intent to deceive” from “intent to defraud,” which requires proof of the intent to “deprive of some right, interest or property by deceit.” Accordingly, the court affirmed the conviction.



    • 18 USC § 371 - Conspiracy to Defraud

 U.S. v. White, 05-3403 (6/11/07)

    > Defendant was charged in a conspiracy to defraud the government regarding medicare benefits. Upon his conviction, defendant appealed and argued that the evidence was insufficient to establish the existence of an agreement, that overt acts were committed, and that he intended to defraud the government.

    * Holding: The elements of conspiracy to defraud the government are (1) an agreement to commit a crime against the U.S., (2) one or more overt acts in furtherance of the agreement, and (3) intent to commit the substantive offense. The agreement may be tacit, and it may be proven by circumstantial evidence. In the case, the court held that the conspirators’ conduct established at least a tacit agreement between defendant and others to defraud medicare. Further, the court ruled that defendant committed overt acts based upon his prominent managerial role in several of the companies involved. Finally, the court found that defendant’s specific intent to defraud was sufficiently established. Thus, the conviction was affirmed.



    • 18 USC § 666 - Theft by Official

 U.S. v. Hynes, 05-2036 (11/7/06)

    > Defendant was charged with stealing narcotics from the Detroit Police Department property room while he was employed as a police officer. A charge under § 666 requires proof that the property stolen has a value of more than $5,000. During the trial, the district court instructed the jury that it could consider the market value of the property stolen, even if it was illegal to sell. Defendant was convicted and argued on appeal that the district court should not have instructed the jury that it could consider the “thieves’ market” value of the drugs.

    * Holding: Interpreting the term “value” consistently with the use of the term in other federal theft statutes, the court held that “value” in § 666 could mean the value in the “thieves’ market.” Accordingly, the conviction was affirmed.



    • 18 USC § 666-Defraud Government Entity

  U.S. v. Hudson, 05-2656 (6/26/07)

    > Defendant entered into contracts with the school district, as an independent contractor, to help a school develop a television station. As a result of defendant’s activities during the course of his performance of the contract, he was charged with defrauding a government entity that received federal funding under § 666. At the close of the case, defendant moved for judgment of acquittal upon the grounds that the government had not established his agency relationship with the school as required by the statute. The district court denied the motion, defendant was convicted, and he appealed.

    * Holding: The elements of a § 666 violation are as follows: (1) defendant must be an agent of the entity receiving the federal funding; (2) defendant must embezzle or steal property; (3) the property must be worth $5,000 or more; (4) the entity must own or control the property; and (5) the entity must receive more than $10,000 in federal funding. Regarding the agency element, the court held that the wording of the contract, i.e., independent contractor, is not necessarily dispositive of the entity question. Instead, the court must look to the substance of the relationship to determine if the accused is authorized to act on behalf of the agency. In the case, the court found that defendant was an agent of the school based upon his authority to enter purchase orders on behalf of the school, set up a television station at the school, train students and district employees, be the contact person for purchases of studio equipment, and negotiate prices for equipment. Further, defendant had an office at school, business cards, and a master key to the school and the district’s gym. Accordingly, under the circumstances the court ruled that defendant was properly considered an agent, and the court affirmed defendant’s conviction.



    • 18 U.S.C. § 844(i) - Arson

 Logan v. U.S., 04-5325 (1/19/06)

    > Defendant was convicted of conspiracy and arson of a hotel. At sentencing the district court increased the statutory maximum to life under § 844(i) because four people died in the fire. The district court then sentenced defendant to life. Defendant did not challenge the judicial fact finding either in the trial court or on direct appeal. Defendant then filed a habeas petition arguing that the issue of whether death resulted should have been submitted to the jury and proven beyond a reasonable doubt. The district court found that defendant had procedurally defaulted the argument by not raising it during the trial or direct appeal. Defendant appealed.

    * Holding: Relying on the Supreme Court’s decision in Jones v. U.S., the court held that the issue of whether death resulted from arson – thus triggering an increase in the maximum penalty to life – is an element of the offense and must be submitted to the jury at trial. The court ruled, however, that because defendant had failed to preserve the issue at trial or on direct appeal, the issue was waived. Accordingly, the court affirmed the district court’s ruling denying the petition.



    • 18 USC § 844 - Arson

  U.S. v. McAuliffe, 06-3016 (6/22/07)

    > Defendant was convicted of using fire to commit another felony, namely mail fraud, under § 844(h)(1). Defendant argued on appeal that he had not “used” fire “to commit mail fraud” under the statutory meaning of the term “used.”

    * Holding: The court held that the ordinary meaning of the word “use” is to “employ” or to avail oneself of something. Under the circumstances, defendant had clearly employed a fire in order to commit mail fraud in so much as he burned down his own house in order to falsely claim insurance proceeds. Accordingly, the conviction was affirmed.



    • 18 USC § 844(i) - Arson

 U.S. v. Rayborn, 05-6894 (7/26/07)

    > Defendant was a pastor who was charged with arson for burning down his own church. The evidence at trial was entirely circumstantial. Two ATF experts testified that, based upon the existence of gasoline and diesel fuel pour patterns found on the floors of multiple rooms, they believed that the fire was intentionally set. Defendant’s experts did not dispel this conclusion. Further, defendant told the investigators that he was the only person in the church within the relevant time period, and that all of the doors were locked. Finally, evidence was adduced that the church was insured and defendant filed a claim on behalf of the church for $800,000. Defendant had access to and control over such funds. Defendant was convicted after jury trial and he appealed, challenging the sufficiency of the evidence.

    * Holding: The court held that the government was required to prove that defendant maliciously damaged or destroyed the church and that the church was used in interstate commerce. The only element at issue was whether defendant caused fire. The court ruled that circumstantial evidence may be sufficient to support a jury verdict if the evidence is substantial and competent. The court found that the evidence was sufficient to support the verdict because an accelerant was used, defendant was the sole person with access to the church at the time, and he had motive to collect the insurance proceeds. Accordingly, the conviction was affirmed.




    • 18 USC § 844(i) - Arson - Personal Injury

 U.S. v. Gibney, 06-5909 (3/7/08)

    > Defendant pled guilty to committing an arson that caused personal injury to a public safety officer, pursuant to § 844(i). At sentencing, defendant argued that no personal injury occurred because the phrase “personal injury” in the statute should be construed to require some serious or significant injury. The district court ruled against defendant and he appealed.

    * Holding: The court first ruled that defendant waived the right to argue no personal injury through his guilty plea to the offense. (See infra, IX. Plea & Sentencing Hearings). Alternatively, the court held that § 844(i), under a plain reading of the statute, contained no requirement that a “personal injury” be serious or significant. Accordingly, defendant’s sentence was affirmed.



    •18 USC § 921(a)(24)-Possession of Silencer

 U.S. v. Carter, 04-4304 (10/17/06)

    > Defendant was indicted for possession of an unregistered silencer. At trial, the government established that the device defendant possessed was intended to be used as a silencer, but did not show that it was operable. Defendant was convicted and appealed.

    * Holding: The court held that, under § 921(a)(24), the government need not prove that a silencer is operable, only that the device is intended for the purpose of silencing a weapon. Thus, the conviction was affirmed.



    • 18 U.S.C. § 922(g) - Felon in Possession

 U.S. v. Hadley, 03-5838 (12/6/05)

    > Police officers arrived at defendant’s home pursuant to a 911 call and defendant’s wife came out of the house yelling that defendant had threatened her with a gun. Based upon information from the wife, the officers eventually found a handgun in a dresser in defendant’s and his wife’s bedroom. While the case was pending, the government obtained a tape recording from the jail wherein defendant told his wife to claim that he didn’t have a gun. During the trial, the wife’s hearsay statements about defendant threatening her with the gun were admitted into evidence, and defendant was convicted. Defendant appealed.

    * Holding: The court found that defendant had at least constructively possessed the firearm. Defendant challenged on appeal that his rights under the Confrontation Clause were violated when his wife’s hearsay statements were admitted, but a two-judge majority avoided the constitutional issue by concluding that, even without the wife’s statements, the jury had sufficient evidence to convict defendant of constructive possession. In order to prove constructive possession of a firearm, the government must show that the defendant has power and intention to exercise dominion and control over the gun, either directly or through others. In the case, based upon the location of the gun and the statements that defendant made to his wife on the phone from the jail, the court concluded that constructive possession of the firearm was proven. Thus, the conviction was affirmed.



    • 18 U.S.C. § 922(g) - Felon in Possession

 U.S. v. Coffee, 04-1758 (1/20/06)

    > Firearms were found in a house that defendant rented, inside the pockets of shirts that bore defendant’s name. Although others had sporadic access to the house, defendant’s name was on the lease and some evidence was introduced to show that defendant lived at the house. Defendant was charged with being a felon in possession of a firearm and was convicted after trial. Defendant appealed.

    * Holding: Constructive possession of a firearm may be proven by showing that a defendant has dominion over the premises where a firearm is located. The government need not remove every reasonable hypothesis except that of guilt. In the case, the court found that the evidence established that defendant exercised dominion over the residence and that the jury could reasonably have concluded that he constructively possessed the firearms based upon where they were found. Accordingly, the court affirmed the conviction.



    • 18 U.S.C. § 922(g) - Felon in Possession

 U.S. v. Newsom, 05-5030 (6/29/06)

    > Defendant was pulled over by police for running a stop sign and he bent over as if putting something under the seat. The police found a gun under the seat, with bullets in plain view on the floor. Defendant made two separate statements suggesting that the gun was his. After his conviction, defendant challenged the sufficiency of the evidence on appeal.

    * Holding: To prove constructive possession of a firearm, the government must show that the defendant had the power and the intention at a given time to exercise dominion and control over it, either directly or through others. In the case, the court found sufficient evidence, both from defendant’s actions and statements, to conclude that he had constructively possessed the gun. Accordingly, the conviction was affirmed.



    • 18 USC § 922(g) - Felon in Possession

 U.S. v. Coleman, 04-4393 (8/10/06)

    > Defendant was charged with being a felon in possession of a firearm. The predicate felony was a state drug trafficking conviction for which a federal district court had granted a conditional writ of habeas corpus. The writ went into force in 90 days unless the state retried defendant within that time period. The state appealed the grant of the conditional writ and the district court accordingly stayed the issuance of the writ pending appeal. During this stay, defendant was arrested with a firearm and charged with being a felon in possession of a firearm. At the close of the trial, defendant made a Rule 29 motion requesting dismissal because the predicate felony was the subject of the writ. The district court denied the motion and defendant appealed.

    * Holding: The court first held that the law is settled that the subsequent nullification of a predicate felony conviction does not invalidate an already entered conviction for being a felon in possession of a firearm. Second, the court ruled that a conditional writ of habeas corpus does not have the effect of nullifying a conviction unless and until the writ “springs into effect.” Because the execution of the writ was stayed at the time of defendant’s arrest with the firearm, the predicate drug trafficking conviction was still in full effect. Thus, defendant’s conviction for being a felon in possession of a firearm was valid and the district court ruling was affirmed.



    • 18 USC § 922(g) - Felon in Possession

 U.S. v. Arnold, 04-5384 (5/18/07)

    > A witness called 911 and indicated that defendant threatened her with a gun. When police arrived, the witness reiterated the same story, and while police were there, defendant arrived in a car with his mother. The police found a gun underneath defendant’s seat. The witness failed to appear for trial, but her statements to the police were admitted into evidence. Defendant was convicted of being a felon in possession of a firearm, and he appealed. The original panel found the evidence insufficient to support the verdict and reversed defendant’s conviction. The court granted en banc review.

    * Holding: The en banc court held that the evidence was sufficient to support the verdict. Specifically, the court ruled that the evidence provided by the witness about defendant possessing the gun, combined with the fact that the gun was found under the seat in which defendant was sitting and that the gun generally matched the generic description provided by the witness, afforded an adequate basis to affirm the conviction.




    • 18 USC § 922(g) - Aiding and Abetting

 U.S. v. Gardner, 05-6272 (5/25/07)

    > Defendant was convicted at trial of, among other offenses, aiding and abetting a codefendant’s possession of a firearm having been convicted of a felony. Defendant argued on appeal that the evidence was insufficient to support the verdict.

    * Holding: In order to convict a defendant of aiding and abetting in regard to a felon-in-possession charge, the government must prove that defendant (1) committed an act that contributed to the commission of the crime, and (2) intended to aid in the commission of the crime. Regarding the first element, the court found that defendant committed an act that contributed to the commission of the crime by transporting the firearm that the codefendant possessed. Regarding the second element, and answering an open question in the Sixth Circuit, the court held that the government must prove that the defendant knew or had cause to know that the codefendant/principal was a convicted felon. The court held that the evidence was insufficient on this point, and accordingly reversed defendant’s conviction.



    • 18 USC § 922(g) - Felon in Possession

  U.S. v. Crowell, 06-5902 (6/26/07)

    > Defendant was charged with being a felon in possession of a firearm after he was observed by two officers fleeing from a car, and dropping a gun in the bushes. Defendant was convicted after jury trial and challenged the sufficiency of the evidence on appeal.

    * Holding: The court found the evidence sufficient to support the conviction. Specifically, the court credited the “unwavering” testimony of the two officers who saw defendant drop the gun, and well as one officer’s testimony that defendant indicated after his arrest that the gun was a “nice nine millimeter.” The court discounted defendant’s testimony that he did not have the gun and a witness’ statements that another person, not defendant, dropped the gun. Accordingly, the conviction was affirmed.



    • 18 USC § 922(g) - Constructive Possession

 U.S. v. Grubbs, 04-5403 (10/17/07)

    > Defendant was visiting his mother’s home when agents executed a search warrant regarding stolen cars. During the search, officers found various firearms and ammunition, including a handgun under the pillow in a bedroom. Defendant’s brother admitted that the gun was his, and evidence showed that, when defendant visited his mother, he slept on the couch in the living room. Defendant was charged with multiple offenses regarding stolen cars and firearms. Defendant pled guilty to the stolen vehicle charges, but proceeded to trial on the firearm offenses. At trial, a neighbor testified that he saw defendant with a gun very similar to the handgun found under the pillow. Defendant was convicted for the handgun, but acquitted of the remaining firearm charges. Defendant appealed and argued that the evidence was insufficient to support the government’s constructive possession theory.

    * Holding: The court held that constructive possession is proven where a defendant has both the “power and the intention at a given time” to exercise control or dominion over a gun. Presence near a gun, in and of itself, is not sufficient. In the case, the court held that the government failed to establish that defendant constructively possessed the gun. Defendant did not live in the house, and no evidence tied him to the bedroom where the gun was found. Further, the court found unpersuasive the witness’ testimony about seeing defendant previously with a similar gun. The court found that the witness’ description of the gun was too generic to make the necessary link to prove that it was same gun. Accordingly, defendant’s conviction was reversed.





     • 18 USC § 922(g) - Felon in Possession

 U.S. v. Martin, 06-5605 (3/31/08)

    > Defendant was charged with being a felon in possession of a firearm and various drug trafficking offenses. Defendant was convicted after trial and challenged the sufficiency of the evidence for the firearm charge on appeal.

    * Holding: The court ruled that the evidence was sufficient to support the verdict where the firearm was found beside the bed in the master bedroom of defendant’s girlfriend’s apartment, men’s clothing was in the bedroom closet, and a pill bottle and phone bill in defendant’s name were in the apartment. The court was unpersuaded by the facts that defendant’s fingerprints were not found on the gun, and defendant’s girlfriend testified that she owned the gun. Accordingly, the conviction was affirmed.



   • Constructive Possession of a Firearm

 Parker v. Renico, 06-2419 (10/17/07)

    > Defendant was charged in Michigan state court with conspiracy to commit murder, assault, and two counts involving the possession of a firearm. The charges were based upon a drive-up shooting incident where defendant was a back seat passenger in the get-away car. The police apprehended the occupants of the car after a high speed chase and accident, and a gun was found in close proximity to where defendant was sitting in the back seat. At trial, the jury acquitted defendant of all but the possession of firearm charges. Defendant lost his state court appeals, and then filed a federal habeas petition wherein he argued that no reasonable juror could have found beyond a reasonable doubt that he constructively possessed the firearm. The district court agreed and granted defendant’s petition. The state appealed.

    * Holding: Under both Michigan and federal law, constructive possession of a firearm may not be proven by mere proximity to the firearm. The prosecution must also prove indicia of control on the part of the defendant, which means that defendant must have both the “power” and “intention” to exercise control over the gun. In the case, the court found that, although the gun was within defendant’s view and in close proximity to him, the circumstances provided no indicia of control on defendant’s part. Thus, the conviction was reversed.



    • 18 U.S.C. § 924(c) - Firearm Enhancement

  U.S. v. Frederick, 03-1895 (5/5/05)

    > Defendant was charged with possessing a firearm in relation to drug trafficking under § 924(c), and the district court instructed the jury that defendant could be convicted if it found that he bought the gun in exchange for drugs. Defendant argued on appeal that purchasing a gun for drugs did not support a § 924(c) conviction.

    * Holding: The court ruled that the acquisition of a firearm in return for drugs established a sufficient specific nexus between the firearm and the drugs to support a conviction under § 924(c). Specifically, the court indicated that, under the circumstances, the possession of the firearm was “in furtherance” of the drug sale as required by the statute. Thus, the conviction was affirmed.



    • 18 U.S.C. § 924(c) - Firearm Enhancement

 U.S. v. Whitehead, 04-1831 (7/20/05)

    > Defendant was found in a dilapidated house sitting at a table on the first floor. When officers approached, defendant ran. The officers found a shotgun nearby and, upon defendant’s arrest, found 37 separate bags of crack cocaine on his person and $67 in small bills. Defendant was charged, among other things, with possessing a firearm in furtherance of a drug trafficking crime pursuant to § 924(c). Defendant was convicted at trial and appealed based upon the sufficiency of the evidence.

    * Holding: The court held that a defendant may be convicted under § 924(c) if the firearm is strategically located so that it is quickly accessible for use in a drug transaction. The court may also consider whether the gun is loaded, the type of gun, the legality of its possession, the type of drug activity, and the time and circumstances under which the firearm was found. Under the facts of the case, the court found sufficient evidence to convict defendant of possessing the firearm in furtherance of his drug trafficking activities.



    • 18 U.S.C. § 924(c) - Firearm Enhancement

 U.S. v. Savoires, 04-2140 (11/30/05)

    > Defendant was charged with drug trafficking and a violation of § 924(c). In regard to the § 924(c) charge, the indictment stated that defendant had carried, “used and possessed a firearm during and in relation to and in furtherance of a drug trafficking crime.” Defendant argued on appeal that the indictment was duplicitous.

    * Holding: The court held that § 924(c) contains two distinct offenses: (1) using or carrying a firearm during and in relation to a crime of violence or drug trafficking; and (2) possession of a firearm in furtherance of a crime of violence or drug trafficking. The court found that the indictment in the case was duplicitous because it unlawfully charged both of the distinct § 924(c) offenses in one count of the indictment. Further, the court held that the error in the indictment was not cured by the instructions given to the jury which also improperly combined the elements of the two distinct offenses. Accordingly, the conviction was reversed.



    • 18 U.S.C. § 924(c) - Firearm Enhancement

 U.S. v. Perry, 04-4506 (2/24/06)

    > Defendant was charged with bank robbery and a § 924(c) count. The indictment charged defendant under § 924(c)(1)(A)(ii), which carries a 7 year mandatory consecutive sentence for brandishing a firearm. By the time of sentencing, defendant had been convicted and sentenced for a separate bank robbery and § 924(c) charge. Thus, the district court imposed a 25 year consecutive sentence pursuant to § 924(c)(1)(c). Defendant challenged on appeal the application of the 25 year mandatory consecutive sentence because it had not been charged in the indictment.

    * Holding: The court found that application of the 25 year consecutive sentence was proper. Because the enhancement from 7 years to 25 years was based upon defendant’s prior conviction, Apprendi permitted the enhancement without the necessity of it being charged in the indictment. Thus, the 25 year enhancement was proper. Further, even though the court remanded the case, pursuant to Booker, for resentencing on the bank robbery conviction, the court specifically held that resentencing was not appropriate regarding the 25 year term because it was a mandatory statutory penalty.



    • 18 USC § 924(c) - Firearm Enhancement

 U.S. v. Van Hoosier, 04-6297 (4/5/06)

    > Defendant was charged with narcotics offenses and a firearm enhancement under § 924(c). The indictment charged defendant with aiding and abetting a codefendant’s possession of an assault rifle, a gun that triggered the ten year consecutive sentence under § 924(c)(1)(B)(I). The indictment indicated the type of gun that was possessed, but did not specifically reference the statutory subsection that contained the 10 year enhancement. Defendant pled guilty to the 10 year § 924(c) charge and at sentencing argued that the 10 year mandatory penalty should not apply to him because the codefendant was not convicted of possession of the firearm in question. The district court agreed with defendant, and sentenced him below the ten year mandatory minimum. The government appealed.

    * Holding: The court first reaffirmed circuit precedent that the enhancement provisions of § 924(c) pertaining to the type of firearm are elements of the offense rather than sentencing enhancements. Thus, a defendant may not be sentenced based upon such an enhancement unless the type of firearm is admitted by the defendant or charged in the indictment and proven beyond a reasonable doubt. The court held that because the type of gun was charged in the indictment and defendant had admitted to the type of gun during the plea hearing, the mandatory ten year sentence of § 924(c)(1)(B)(I) applied. The court further found no error in the government’s decision to convict defendant of the ten year offense on an aiding and abetting theory where the codefendant, who actually possessed the gun, was not convicted of such offense. Accordingly, the district court ruling was reversed and the case remanded for imposition of the ten year mandatory sentence.



    • 18 USC § 924(c) - Firearm Enhancement

 U.S. v. Lloyd, 04-4014 (9/1/06)

    > Defendant was charged with bank robbery and a § 924(c) count. For the § 924(c) charge, the indictment listed that defendant carried the firearm in relation to a crime of violence and that he possessed the firearm in furtherance of a crime of violence. Defendant proceeded to jury trial and the district court instructed the jury that it could convict defendant for either the carrying or the possession offense, but it did not indicate that the jury must unanimously pick only one theory. Defendant did not challenge the indictment’s duplicity in the trial court, but raised it for the first time on appeal.

    * Holding: An indictment is impermissibly duplicitous if it charges more than one offense in a single count, but the error may be cured by proper jury instructions. In the case, the court held that the indictment was duplicitous because it charged two separate § 924(c) offenses in one count. Further, the court held that the jury instructions did not cure the error because, although the district court properly explained the alternative theories of guilt, it did not require that the jury reach unanimity on one offense. Nonetheless, because defendant did not raise the issue of duplicity in the district court, the court applied the plain error standard and found that defendant’s substantial rights had not been affected. Accordingly, the conviction was affirmed.



    • 18 USC § 924(c) - Firearm enhancement

 U.S. v. Bailey, 06-5576 (1/9/08)

    > Defendant was charged with drug trafficking and possession of a firearm in furtherance of drug trafficking. The narcotics in question were found in defendant’s pocket and the firearm was found underneath his car seat. Defendant was convicted after trial on both charges and appealed the sufficiency of the evidence for the firearm charge.

    * Holding: The court held that in order for a firearm to be possessed in furtherance of a drug trafficking offense, it must be “strategically located so that it is quickly and easily available for use.” In making this determination, the court must consider the following: (1) whether the gun was loaded; (2) the type of gun; (3) the drug activity conducted; and (4) the circumstances under which the gun was found. In the case the court found that defendant had a loaded .357 magnum under the seat, it was quickly and easily accessible, the vehicle in which it was found was stolen, and defendant’s girlfriend testified that defendant put the gun under the seat. Based upon these facts, the court ruled that the evidence was sufficient to support the verdict.



    • 18 U.S.C. § 924(e) - ACCA

 U.S. v. Sanders, 04-3181 (4/20/05)

    > Defendant was convicted of being a felon in possession of a firearm, and was sentenced by the district court pursuant to § 924(e) (ACCA). The district court indicated on the record that the ACCA status was based upon three prior violent felonies on defendant’s record, two for robbery and one for burglary. The district court did not indicate on the record the basis for its conclusion that the offenses qualified defendant for the ACCA enhancement. Likewise, the PSR was unclear as to the exact nature of the prior offenses. Defendant did not object at sentencing to the ACCA enhancement. During the pendency of the appeal, the Supreme Court rendered its decision in Shepard v. U.S. (see supra).

    * Holding: Based upon Shepard, the court concluded that the district court had not properly developed the record as to the propriety of the ACCA enhancement. The court directed the district court on remand to either explain its reasons for concluding that the prior convictions qualified defendant for the ACCA enhancement, or to resentence defendant anew.



    • 18 U.S.C. § 924(e) - ACCA

 U.S. v. Sawyers, 02-5835 (6/13/05)

    > Defendant was convicted of being a felon in possession of a firearm, and at sentencing the district court determined that defendant qualified for the ACCA enhancement. On appeal, among other issues, defendant argued that two of the prior convictions - facilitation of an aggravated burglary and statutory rape - were not properly considered predicate offenses for the ACCA.

    * Holding: Regarding the facilitation of an aggravated burglary, the court held that such a prior offense was a violent felony for ACCA purposes under the definitional section that includes “conduct that presents a serious potential risk of physical injury to another,” known as the “otherwise clause.” The court ruled that, under the otherwise clause, no mens rea element was required, just that defendant was responsible for the conduct that caused the risk of injury. Thus, even though facilitation of an aggravated burglary did not require any specific intent on the part of defendant, because it did require proof that the aggravated burglary actually occurred, it could properly be considered a violent felony for ACCA purposes.

            Regarding the statutory rape, the court concluded that the case had to be remanded. The court held that statutory rape statutes that include more mature victims, and do not contain statutory aggravating factors, do not necessarily automatically fall into the “otherwise clause.” Thus, the court remanded the case for the district court to consider, pursuant to Shepard, whether the offense could be deemed violent considering the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”



     • 18 U.S.C. § 924(e) - ACCA

 U.S. v. Hargrove, 04-3338 (7/19/05)

    > Defendant was indicted for being a felon in possession of a firearm, and an armed career criminal pursuant to § 924(e) (ACCA). The government contended that defendant’s three prior convictions under Ohio law for sexual battery qualified as violent offenses for ACCA purposes. The district court held that the prior offenses were violent under the ACCA, and accordingly enhanced defendant’s sentence. Defendant appealed.

    * Holding: The court found that the offenses were not violent felonies under the ACCA and vacated defendant’s sentence. Relying on the Supreme Court decision in Taylor, the court held that a district court, in determining whether an offense is a violent felony under the ACCA, may consider the language of the statute, the indictment, and any jury instructions from the prior trial. The Ohio sexual battery convictions at issue prohibited a step-parent from having sex with a step-child. Neither the Ohio statute nor the indictment required proof of lack of consent, or proof that the step-child was a minor. Accordingly, the court held that the sexual battery offenses were not a violent felonies under the ACCA, and reversed the district court ruling.



    • 18 USC § 924(e) - ACCA

 U.S. v. Hill, 04-6206 (3/1/06)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court concluded that defendant’s record contained three prior violent offenses. Accordingly, the district court applied the ACCA enhancement (§ 924(e)). Two of defendant’s prior convictions were for burglaries that occurred on the same day. In the burglaries, defendant had first entered an abandoned business and stolen bolt cutters, then went across the street to another property and used the bolt cutters to steal a boat motor. At the second location, defendant also stole a weed eater and fishing equipment, for which he did not use the bolt cutter. Defendant appealed application of the ACCA enhancement upon two grounds: (1) the two burglaries should count only as one offense, and (2) the ACCA could not be applied because it was not charged in the indictment.

    * Holding: Prior convictions are counted separately for purposes of the ACCA if they were “committed on occasions different from one another.” After conducting a careful analysis of the precedent in the Sixth Circuit, the court articulated three indicators as to when offenses should be counted separately under the ACCA. First, offenses may be separate if it is possible to discern the point at which the first offense is completed and a subsequent point at which the second offense began. Second, offenses may be separate if the offender could have ceased her criminal conduct after the first offense, and withdrew without committing the second. Third, offenses may be separate if they occurred in different residences or business locations. In the case, the court found that all three indicia suggested that the two burglaries were separate. Therefore, the district court ruling was affirmed.

            Additionally, the court held, pursuant to Apprendi, that the ACCA provision need not be charged in the indictment in order to be applicable. The court noted that Justice Thomas opined in Shepard that the Supreme Court might, if the issue were raised in the appropriate context, decide that the Sixth Amendment requires that the ACCA enhancement be pled in the indictment and proven to the jury. (See P.V., Issue #1). The court held that it would not make such a finding, however, without a more definitive ruling from the Supreme Court. Thus, the ACCA enhancement was affirmed.



    • 18 USC § 924(e) - ACCA

 U.S. v. Beasley, 04-6468 (4/3/06)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that defendant qualified as an ACCA. One of the prior convictions supporting the ACCA enhancement was a state court conviction for “CA:M2.” Based upon the fact that the underlying state indictment was for “Criminal Attempt, First Degree Murder,” the district court concluded that “CA:M2" meant a conviction for “Criminal Attempt, Second Degree Murder,” which would be a violent offense under the ACCA. Defendant appealed.

    * Holding: In the Taylor and Shepard decisions, the Supreme Court held that courts are bound to follow a categorical approach to determining whether a prior conviction is violent for ACCA purposes. (See P.V., Issue #1). In this case, the court first held that the categorical approach does not apply to a determination of what state court offense was actually committed, but only to whether such offense was violent. In determining what the offense actually is, the court may consider any evidence having a “minimal indicia of reliability.” Therefore, the district court was not constrained by Taylor and Shepard in its determination that defendant was in fact convicted of criminal attempt, second degree murder. Second, the court held that, even if the categorical approach did apply to such a determination, the district court had not erred. The district court analyzed only the indictment and the judgment entry, both of which are permissible considerations under Taylor/Shepard. Accordingly, the ACCA determination was affirmed.



    • 18 USC § 924(e) - ACCA

 U.S. v. Mahon, 04-4317 (4/21/06)

    > Defendant was convicted of being a felon in possession of a firearm and with making false statements on a firearm application. At sentencing, the district court determined that defendant had four qualifying convictions and sentenced him under the ACCA. On appeal, defendant argued that two prior burglaries on his record were not violent felonies under the ACCA.

    * Holding: Applying Taylor and Shepard, the court held that the two prior burglaries were violent offenses under the ACCA. The court ruled that the district court had properly reviewed the indictments from the underlying burglary charges and ascertained that, even though the indictments did not specifically list the subsection of the burglary statute, the language in the indictments tracked the language of the Ohio statute ORC § 2911.13(A). The court had previously held in U.S. v. Bentley that § 2911.13(A) described a generic burglary, which constitutes a violent offense. The court found that the Bentley analysis was consistent with the Supreme Court’s categorical approach applied in Shepard. Thus, application of the ACCA was affirmed, but the case was nonetheless remanded for resentencing consistent with Booker. Judge Merritt stated in concurrence that he found a “serious due process” problem with the application of the ACCA’s mandatory minimum sentence to such an undeserving defendant, and that the court was sanctioning a “gross injustice.” Because no due process issued was raised, however, Judge Merritt reluctantly concurred in the decision.



    • 18 USC § 924(e) - ACCA

 United States v. Jones, 05-5739 (7/20/06)

    > Defendant was convicted of being a felon in possession of a firearm and the district court sentenced defendant as an armed career criminal under § 924(e). The ACCA finding was based upon three prior convictions for armed robberies that occurred on the same day, within two hours of each other. In making the determination, the district court relied on “affidavits of complaint” that were filed pre-indictment in the prior cases that indicated that the offenses involved different victims and separate locations. Defendant appealed the ACCA determination.

    * Holding: First, the court held that the district court’s consideration of the “affidavits of complaint” was proper under the Supreme Court’s decisions in Taylor and Shepard. Second, the court ruled that the three prior convictions were properly considered as separate offenses, even though they occurred in close proximity, because they involved different victims and happened at separate locations. Third, the court noted that the Sixth Circuit has never decided whether the Taylor/Shepard requirements actually apply to a determination by the district court as to whether prior offenses occurred on different occasions under the ACCA. The court did not directly answer this question because it found that the Taylor/Shepard requirements had been met in the case. Therefore, the sentence was affirmed.



    • 18 USC § 924(e) - ACCA

 U.S. v. Caruthers, 05-5307 (8/11/06)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that defendant qualified as an armed career criminal based upon three prior state burglary convictions from Tennessee. Defendant argued on appeal that the burglary convictions were not violent felonies under the ACCA.

    * Holding: Relying on the Supreme Court decision in Taylor, the court held that a state burglary conviction only qualifies as a violent felony under the ACCA if it meets the generic definition of burglary. In making the assessment, the court noted that it may consider the state statute under which the defendant was convicted, as well as the charging document, plea agreement, and plea colloquy. In the case, the court found that the Tennessee burglary convictions did qualify as generic burglaries pursuant to Taylor and affirmed the sentence.



    • 18 USC § 924(e) - ACCA

 U.S. v. Sanders, 05-4238 (12/15/06)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he was an armed career criminal pursuant to § 924(e). Defendant challenged two of the underlying convictions for the ACCA determination, an aggravated robbery and a robbery conviction. The district court overruled defendant’s objections and he appealed.

    * Holding: A prior conviction is a violent felony under the ACCA if it involves force, is one of several enumerated offenses, or otherwise involves “conduct that presents a serious potential risk of physical injury to another.” First, the court held that a conviction under Ohio’s aggravated robbery statute always constitutes conduct that presents a serious risk of injury. This was true even though the offense could be accomplished merely by committing a theft while carrying a firearm. Accordingly, defendant’s Ohio aggravated robbery was a violent felony under the ACCA.

            Second, the court held that the district court properly determined that defendant also had a robbery conviction on his record. The state court indictment and guilty plea in the prior case referenced robbery, but the journal entry mentioned burglary. The court ruled that the district court did not err in reaching the conclusion that the offense was, in fact, a robbery, and accordingly, a violent felony under the ACCA. Further, the court noted that the categorical approach mandated by the Supreme Court decisions in Taylor and Shepard does not apply to the initial factual question of determining the particular prior offense of which a defendant was convicted. This comment was arguably dicta, however, because the court found that the district court did not actually rely on any documents prohibited by Taylor/Shepard. Finally, the court opined that, in applying the categorical approach, a district court should not rely on abstracts of a prior judgment that are signed by the clerk and not the court. Accordingly, the sentence was affirmed.



    • 18 USC § 924(e) - ACCA

 U.S. v. Wells, 05-6263 (1/9/07)

    > Defendant was convicted of being a felon in possession of a firearm and the government argued at sentencing that defendant should qualify as an armed career criminal. At issue was the question of whether either of two prior juvenile convictions (attempted robbery or aggravated assault) qualified as violent felonies under the ACCA. The district court held that neither of the two juvenile convictions were violent felonies and accordingly refused to apply the enhancement for the ACCA. The government appealed.

    * Holding: Under the ACCA, a prior juvenile conviction may qualify as a violent felony if the offense meets the definition of a violent felony for an adult offense and it involved the use or carrying of a firearm, knife, or destructive device. Answering an open question in the Sixth Circuit, the court held that the Taylor/Shepard categorical approach applies to the determination of whether a juvenile conviction counts as a violent felony. Applying the categorical approach to the case, the court first found that the attempted robbery was not a violent felony because, although the petition referenced a gun, defendant was not convicted of the offense charged in the petition (aggravated robbery), but was instead convicted of the lesser offense of attempted robbery. The offense of attempted robbery did not necessarily involve a gun under the statute. Thus, the district court was correct that the attempted robbery did not qualify under the ACCA.

            Second, the court held that the aggravated assault was likewise not a violent felony. The petition charging the offenses stated that defendant “did intentionally attempt to strike officer C.J. Sramek of the K.P.D. with the vehicle he was driving during a robbery and a shooting.” The court found that the conviction for the aggravated assault did not necessarily involve the “robbery” and “shooting” that were also mentioned in the petition. The court emphasized that defendant did not enter a plea to the alleged robbery and shooting that preceded the aggravated assault, and thus, under the categorical approach, the offense did not necessarily involve a firearm. Accordingly, the district court’s ruling was affirmed.



    • 18 USC § 924(e) - ACCA

 U.S. v. Flores, 06-1152 (2/23/07)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the government argued that defendant should be sentenced under the ACCA. Defendant had a prior conviction for carrying a concealed weapon (CCW) from Michigan and the government argued that it should count as a prior “violent felony” under the ACCA. The district court disagreed and refused to sentence defendant as an armed career criminal. The government appealed.

    * Holding: For the first time in a published opinion, the court held that a prior state conviction for CCW is not properly considered a “violent felony” under the ACCA. Accordingly, the district court ruling was affirmed.



    • 18 USC § 924(e) - ACCA

 U.S. v. Nance, 05-6036 (4/6/07)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that defendant qualified for the armed career criminal enhancement under the ACCA. This determination was based, in part, upon one prior Tennessee conviction for aggravated burglary and one prior Tennessee conviction for facilitation of armed robbery. Defendant appealed.

    * Holding: First, the court held that the Tennessee aggravated burglary statute defined a “generic burglary” pursuant to the Supreme Court decision in Crawford, and that it accordingly was a violent felony under the ACCA. Second, the court held that facilitation of armed robbery was a violent felony under the ACCA because Tennessee courts require that the government prove, as an element of the facilitation offense, that the underlying felony actually occurred. Thus, the sentence was affirmed.



    • 18 USC § 924(e) - ACCA

  U.S. v. Crowell, 06-5902 (6/26/07)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he qualified as an armed career criminal. One of the qualifying offenses for the ACCA enhancement was a juvenile conviction for aggravated robbery. Defendant argued on appeal that the evidence was insufficient to support the existence of the conviction and that applying the ACCA enhancement to a juvenile conviction violated his due process rights.

    * Holding: First, the court held that the evidence was sufficient to support the existence of the prior juvenile conviction. At the sentencing hearing, the government introduced the juvenile court complaint that was signed by defendant, a decree note regarding his juvenile court hearing, and a juvenile court order reflecting that defendant pled guilty and was adjudicated delinquent. Further, defendant’s fingerprints were matched up with his prints from the arrest on the juvenile case. Thus, even though defendant introduced into evidence a juvenile court computer-generated document that showed that he had no juvenile convictions, the court found sufficient evidence to support the existence of the conviction.

            Second, the court held, deciding an open question in the Sixth Circuit, that a juvenile court adjudication may serve as a basis for the ACCA enhancement, consistent with the Due Process Clause, as long as it is procedurally sound. Thus, where the state courts protect a juvenile’s right to notice, right to counsel, privilege against self incrimination, right to confront and cross examine witnesses, and right to a finding of guilt beyond a reasonable doubt, a defendant’s due process rights are sufficiently protected. This is true even though juvenile defendants are not ordinarily afforded the right to a jury trial. Accordingly, the ACCA enhancement was affirmed.



    • 18 USC § 924(e) - ACCA

 U.S. v. Collier, 06-1395 (7/12/07)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court found that he qualified as an armed career criminal. One of the predicate offenses for the ACCA enhancement was a prior Michigan conviction for escape. On appeal, defendant argued that the escape conviction was not a “violent felony” for ACCA purposes.

    * Holding: Under the ACCA, an offense qualifies as a “violent felony” if it is an enumerated crime, involves the use or attempted use of force, or “otherwise involves conduct that presents a serious potential risk of physical injury to another.” In the case, the court held that escape is not an enumerated offense, nor does it contain an element involving the use or attempted use of force. Further, defendant’s escape conviction did not qualify as a violent felony under the “otherwise clause” for two reasons. First, the Michigan escape statute included not only breaking out of jail, but also escape from custody while outside the confines of the jail. Second, Michigan law did not define escape as a continuing offense. Thus, any risk of injury in the subsequent apprehension of a defendant was not, under Michigan law, a part of the offense of escape. The court found insignificant the fact that the PSR indicated that defendant fled and possessed a firearm when he was eventually apprehended for the escape. Thus, the district court ruling was reversed and the case remanded for resentencing.



    • 18 USC § 924(e) - ACCA

 U.S. v. Amos, 06-5032 (8/9/07)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the government argued that defendant qualified for the armed career criminal enhancement. One of the predicate offenses that the government claimed supported the enhancement was a prior Tennessee conviction for possession of a sawed-off shotgun. The district court held that the prior shotgun possession did not constitute a “violent felony” under the ACCA, and accordingly declined to impose the enhancement. The government appealed.

    * Holding: Deciding an open question in the Sixth Circuit, the court held that the mere possession of a sawed-off shotgun does not constitute a “violent felony” under the ACCA. The court reasoned that simply possessing such a firearm was not conduct that presented a “serious potential risk of physical injury to another.” Accordingly, the district court ruling was affirmed.



    • 18 USC § 924(e) - ACCA

 U.S. v. Lancaster, 06-5668 (8/31/07)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court found that he qualified as an armed career criminal. One of the predicate offenses for the ACCA enhancement was a prior Kentucky conviction for second-degree escape. On appeal, defendant argued that the escape conviction was not a “violent felony” for ACCA purposes.

    * Holding: Distinguishing the court’s recent decision in Collier (see supra), the court held that Kentucky’s second-degree escape provision qualified as a “violent felony” for ACCA purposes. Similar to the Michigan statute in Collier, the Kentucky escape statute encompassed conduct that constituted “walk away escapes” from non-jail settings. Unlike the Michigan state courts in Collier, however, Kentucky state courts had consistently defined escape as a continuing offense. This distinction between Michigan and Kentucky law was sufficient for the court to distinguish the case from Collier and find that the Kentucky escape provision constituted a “violent felony.” This conclusion was based on the risk of physical harm inherent in recapturing an escapee. Accordingly, defendant’s sentence was affirmed.



    • 18 USC § 924(e) - ACCA

 U.S. v. Vanhook, 06-6497 (12/14/07)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he qualified for the sentencing enhancement under the ACCA. This conclusion was based, in part, on a prior Tennessee conviction for facilitation of a burglary. Defendant appealed and argued that the facilitation of a burglary conviction did not qualify as a prior violent felony for ACCA purposes.

    * Holding: The court first held that facilitation of a burglary was not the same thing as “burglary,” an enumerated offense under the definition of a violent felony in the ACCA. Facilitation of a burglary does not require proof of intent to commit the underlying burglary; thus, facilitation of a burglary does not meet the generic definition of “burglary,” pursuant to the Supreme Court’s decision in Taylor. Second, the court held that facilitation of a burglary was an offense that caused a serious potential risk of injury to another under the “otherwise clause” of the ACCA. In this regard, the court held that it was irrelevant whether the burglary was in relation to a business or a dwelling. The court ruled that either type of burglary presents a serious potential risk of injury to another, and thus the offense of facilitation of a burglary under Tennessee law is always a violent felony for ACCA purposes. Therefore, the sentence was affirmed.



    • 18 USC § 924(e) - ACCA

 U.S. v. Goodman, 06-5513 (3/17/08)

    > Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that he qualified for the armed career criminal enhancement. One of the predicate offenses was an escape conviction from Tennessee. Defendant argued that the escape should not qualify as a violent felony because defendant “escaped” from house arrest, and Tennessee courts would no longer consider a violation of house arrest to be an offense under the escape statute. The district court disagreed, and defendant appealed.

    * Holding: Relying on prior Sixth Circuit precedent, the court held that escape under the Tennessee statute is categorically a violent felony for ACCA purposes. Further, the court held that a defendant may not mount a collateral attack to a prior state conviction at sentencing before the district court. Defendant’s only remedy would be to seek to set aside the conviction in Tennessee state court. Accordingly, the district court ruling was affirmed.



   • 18 U.S.C. § 1001(a) - Falsify Material Fact

 U.S.v. Gibson, 03-6592 (5/24/05)

    > Defendants operated a coal mine and were indicted for concealing material facts from federal mine safety inspectors in violation of § 1001. The material facts concealed were the existence of mine safety violations in the mine. Defendants concealed the violations by alerting mine personnel prior to the inspectors arrival, thus allowing the cover up of the safety violations. After a jury convicted defendants, the district court arrested judgment on the charge, finding that the indictment did not charge an offense. The government appealed.

    * Holding: The court affirmed the district court’s ruling and held that § 1001 is only violated in this context where a defendant has a legal duty to disclose the existence of the material fact that is concealed. The federal law on mine safety does not require mine operators to disclose the existence of safety violations. It does, however, require the disclosure of “hazardous conditions” in the mine. Because the indictment charged defendants only in terms of failing to disclose the existence of safety violations, which defendants had no affirmative duty to disclose, the court agreed that the count of the indictment did not charge an offense.



     • 18 USC § 1001 - False Statements

 U.S. v. Ahmed, 05-2319 (11/29/06)

    > During defendant’s tenure in the Air Force, he began to make statements that were decidedly pro-terrorist and anti-U.S. After the September 11 attacks, he made additional comments displaying satisfaction at the results. Accordingly, the Air Force terminated defendant’s access to classified information and, shortly thereafter, agreed with defendant to an early honorable discharge. Defendant subsequently applied for a position with the Transportation Security Administration to screen bags at the Detroit airport. On defendant’s security questionnaire, he reported that he never left a job under “unfavorable circumstances” and that he never had a clearance suspended or revoked. Defendant was subsequently prosecuted for two counts of false statements under § 1001. Defendant was convicted at trial and appealed.

    * Holding: Generally, a § 1001 false statement prosecution may not be premised on a statement “which on its face is not false.” The court held, however, that defendant did not demonstrate that his statements were facially true. Specifically, the court found no merit to defendant’s arguments that (1) an honorable discharge could not be considered “unfavorable circumstances” and that (2) an “administrative downgrade” in security clearance could not be considered a suspension or revocation. Thus, the conviction was affirmed.



    •18 USC § 1028(b)(1)(D) - Identity Fraud

 U.S. v. Tudeme, 05-6258 (8/9/06)

    > Defendant was convicted of using another person’s identity to commit a felony offense and at sentencing the district court determined that the statutory maximum for the offense was 15 years, pursuant to § 1028(b)(1)(D). Based upon this determination, the eligible term of supervised release was increased from 2 to 3 years. Defendant objected upon the grounds that § 1028(b)(1)(D) only permits a 15 year maximum sentence where a defendant “obtains anything of value” whose aggregate sum is $1000 or more. The conduct involved defendant’s attempted purchase of a television with a fraudulent check, but he was caught before he actually obtained the television. The district court overruled defendant’s objection, and he appealed.

    * Holding: The court held that, although the language of § 1028(b)(1)(D) indicates that a defendant must “obtain” something valued at over $1000, § 1028(f) provides that the same penalties apply to attempts or conspiracies. Thus, the district court ruling was affirmed.



    • 18 USC §§ 1341 and 1346 - Mail Fraud

 U.S. v. Turner, 05-6326 (8/31/06)

    > Defendant engaged in a pattern of vote buying and deceptive campaign donation practices on behalf of a judicial candidate in a Kentucky state election. The government prosecuted defendant in multiple mail fraud counts under both § 1341 and § 1346. The § 1341 prosecution utilized the theory that defendant’s actions were meant to deprive Kentuckians of the salary that was paid to the elected judge, and the § 1346 prosecution alleged that defendant deprived the citizenry of the honest services of a judicial candidate. Defendant was convicted and he appealed.

    * Holding: First, the court held that the § 1341 prosecution was improper. This mail fraud section prohibits fraud by use of the mails that is intended to “deprive a victim of money or property.” The court held that vote buying for a candidate, even if successful, did not deprive the citizenry of money because the salary would be paid to whichever elected official obtained the position. The right to decide who is paid the salary is a political, intangible one that cannot be enforced under § 1341.

            Second, the court held that the § 1346 prosecution was likewise improper. This mail fraud section prohibits a scheme to defraud a victim of the “intangible right to honest services.” The court found that, because the candidate that defendant promoted was not in a political office at the time, he had no fiduciary duty that he owed to the public. Thus, the public was not deprived of any “honest services” as that phrase is defined under controlling precedent. Therefore, the convictions on the mail fraud counts were reversed.



    • 18 U.S.C. § 1344 - Bank Fraud

 U.S. v. Abboud, 04-3942 (2/17/06)

    > Defendant was charged in a bank fraud scheme and in the indictment the government charged each illegal transaction as a separate count. Defendant argued on appeal that the indictment was multiplicitous.

    * Holding: The court held, for the first time in a published opinion, that § 1344 permits the government to charge each execution or attempted execution of bank fraud as a separate count. Thus, in a check kiting scheme, each check may be charged as a separate count in the indictment. Defendant’s conviction was accordingly affirmed. The court’s opinion is arguably dicta because the court first found that defendant had waived the multiplicity argument by not properly preserving it in the district court. (See infra, VIII. Defenses.)



    • 18 USC § 1344 - Bank Fraud

 U.S. v. Winkle, 04-4196 (2/21/07)

    > Defendant was a car dealer who was involved in a scheme with another dealer to kite checks between their bank accounts by conducting fake vehicle trades between the dealerships. Defendant was charged with bank fraud for the check kiting activity and argued at trial that he did not have the intent to defraud, but instead that he was duped by the other dealer and that he was merely in an overdraft situation. Defendant was convicted and he argued on appeal that the evidence was insufficient to support the verdict.

    * Holding: Intent to defraud may be proven entirely by circumstantial evidence and such evidence need not remove every reasonable hypothesis other than guilt. The defendant’s intent may be inferred from examining the scheme itself if it was reasonably calculated to deceive persons of ordinary prudence. In the case, the court found that defendant’s statements that he knew that certain checks he wrote would not clear his bank, in addition to the circumstances of the fake vehicle trades, provided a sufficient basis to show his intent to defraud. Thus, the conviction was affirmed.



    • 18 USC § 1344 - Bank Fraud

 U.S. v. Ross, 05-4469 (9/21/07)

    > Defendant was charged with bank fraud based upon counterfeit checks that were deposited into his bank account. Defendant argued at trial that he did not know that the checks were counterfeit at the time they were deposited. Defendant was convicted and argued on appeal that the evidence was insufficient to support the verdict.

    * Holding: The court found sufficient evidence to believe that defendant knew that the checks were counterfeit. Defendant’s knowledge could be inferred from the fact that he previously received checks from the same source that turned out to be counterfeit. Based on these prior checks, defendant did research on “Nigerian check schemes” and had decided not to accept any more checks from this source. Additionally, defendant was in dire financial trouble and had filed personal bankruptcy, thus demonstrating his desperate need for the money. Although the court called it a close case, the court found that the evidence supported defendant’s knowledge and sustained the verdict.



    • 18 USC § 1347 - Medicare Fraud

 U.S. v. White, 05-3403 (6/11/07)

    > Defendant was charged with executing a scheme to defraud medicare by submitting inflated contracts to medicare and failing to disclose the related nature of defendant’s various companies. Defendant was convicted and argued on appeal that the evidence was insufficient to support his intent and his knowledge that his companies were “related parties” under the medicare rules.

    * Holding: In order to establish medicare fraud, the government must prove that defendant (1) knowingly devised a scheme to defraud medicare in relation to the payment of benefits, (2) executed the scheme, and (3) acted with specific intent to deceive or defraud. In the case, the court held that a reasonable jury could have concluded, based on the evidence, that defendant intended to deceive medicare and that he knew that the medicare “related party” rule applied to the transactions between the companies that he controlled. Thus, defendant’s conviction was affirmed.



    • 18 USC § 1347 - Medicare Fraud

  U.S. v. Davis, 06-5073 (6/22/07)

    > Defendant was charged with medicare fraud for falsifying claim forms for medicare benefits for mine workers obtaining oxygen equipment to combat black lung disease. At trial, the district court excluded certain defense evidence which showed that, even though the claim forms may have been falsified, the mine workers actually had the medical need for the oxygen equipment. Upon her conviction, defendant appealed.

    * Holding: Medicare fraud under § 1347 may be committed through two different means. First, § 1347(1) defines the offense as a scheme to defraud any health care benefit program. Second, § 1347(2) defines the offense as a scheme to obtain health care program monies by means of “false or fraudulent pretenses, representations or promises.” In the case, the court held that the second section does not require that the materiality of the false statements be established in order for criminal liability to attach. It is enough under the second section that false statements are made in an effort to obtain benefits. The court emphasized that to hold otherwise would essentially write § 1347(2) out of the statute. Accordingly, the court ruled that the exclusion of the medical- need evidence was proper and the conviction was affirmed.



    • 18 USC § 1347 - Health Care Fraud

 U.S. v. Hunt, 06-6300 (4/11/08)



    > Defendant was a doctor who participated in a scheme to commit health care fraud. For defendant’s part, he misrepresented that he had seen patients and determined that a carotid artery ultrasound test was medically necessary. The misrepresentations were then used to obtain insurance and medicaid benefits for the testing. Defendant was convicted after jury trial and he argued on appeal that the evidence was insufficient to support the verdict.

    * Holding: Pursuant to § 1347, the government must prove the following to sustain a conviction for health care fraud: (1) defendant knowingly devised a scheme or artifice to defraud a health care program in connection with the delivery of health benefits; (2) execution or attempted execution of the scheme or artifice; and (3) defendant’s intent to defraud. In the case, the court found ample evidence to believe that defendant knowingly submitted false statements claiming that he had “consultations” with patients. Further, the court ruled that there was sufficient evidence to establish that defendant did not mistakenly believe that a nurse, allegedly hired by a codefendant, was seeing the patients in defendant’s stead. Accordingly, defendant’s conviction was affirmed.



    • 18 USC § 1623 - False Declaration

 U.S. v. Hynes, 05-2036 (11/7/06)

    > Defendant was charged with making a false declaration before the grand jury. At trial, the government introduced evidence to show that defendant had falsely responded to a question regarding his knowledge about a check used to purchase a barber shop. Defendant was convicted and, on appeal, he argued that the evidence was insufficient to show that he knew the answer he gave was false, because the question was ambiguous.

    * Holding: A question that is truly ambiguous or misleading can never be the basis for a finding of perjury. In assessing whether a defendant understood a question, the court may consider the language of the question itself and the context in which it is made. The court held that the question itself to the defendant was not ambiguous and that the context in which it was made clearly indicated that it was a question about the source of the check. Accordingly, the conviction was affirmed.



    • 18 USC § 1951 - Hobbs Act Conspiracy

 U.S. v. Kelley, 05-1361 (8/31/06)

    > Defendant was a high ranking public official for Wayne County, Michigan. Defendant and his wife were charged under the Hobbs Act for extorting home repairs, money, and various other financial benefits from a contractor to whom defendant awarded significant and continuing contracts with the county. Defendant was convicted at trial and filed an appeal challenging the sufficiency of the evidence.

    * Holding: To prove a conspiracy to commit a Hobbs Act extortion, two available means are the “color of official right” and “fear of economic harm” theories. Under the first theory, the official obtains payments to which he is not entitled in return for official acts. A private citizen may be convicted under this theory for aiding and abetting the public official. Under the second theory, a public official receives payment because the victim believes that the defendant can exercise his power to the victim’s economic detriment. A private citizen can also be convicted under this theory. In the case, the court found that the government had established sufficient evidence to convict defendants under both theories, and accordingly, the conviction was affirmed.



    • 18 USC § 1951 - Hobbs Act Conspiracy

 U.S. v. Brock, 05-6621 (9/6/07)

    > Defendant was convicted of conspiracy to commit extortion under the Hobbs Act. At trial, the government proved that defendant’s bail bonding business repeatedly bribed an employee of the clerk of court to remove bond forfeiture hearings from the state court’s docket. Defendant argued on appeal that a § 1951 conspiracy could not be applied to the facts of his case.

    * Holding: The court held that defendant could be guilty of the § 1951 violation only if he conspired to obtain property from “another,” with that person’s consent, under “color of official right.” The court found that the statute would only have applied in the circumstances of defendant’s case if the clerk of court had extorted money from defendant. Instead, defendant bribed the clerk to remove cases from the docket. Thus, there was no property obtained from “another.” The only money that changed hands was defendant’s money, and he could not be guilty of conspiring to obtain his own money. The court accordingly ruled that the Hobbs Act simply did not fit the circumstances of the case. Further, the court held that, to the extent that the statute was ambiguous, the rule of lenity required that it be construed in defendant’s favor. Finally, the court noted that the principle of federalism supported its ruling. Congress specifically chose not to punish the giving of bribes to state officials, but instead left that matter to the states. Thus, the court found no reason to construe the Hobbs Act to cover such conduct. Accordingly, defendant’s conviction was reversed.



    • 18 USC § 1951 - Hobbs Act Conspiracy

 U.S. v. Gray, 05-4482 (4/2/08)

    > Defendant was charged with multiple counts of Hobbs Act conspiracy for his role in obtaining government contracts from city officials for his corporate clients. The indictment alleged that defendant conspired to extort money under color of right. Defendant was convicted after a jury trial. On appeal, defendant argued that the Hobbs Act did not apply to his conduct.

    * Holding: Relying on the Sixth Circuit’s ruling in U.S. v. Brock (See P.V., Issue #7), the court held that in order for a private individual to be convicted in a conspiracy to extort money “from another with his consent” under a color of right, pursuant to the Hobbs Act, the individual must conspire with or assist a public official in extorting money from a third party. In reviewing defendant’s various convictions in the case, the court held that only those convictions could stand in which the public official was paid money that was obtained from a third party, not from defendant. Thus, in situations where defendant merely bribed a public official to provide government contracts to defendant’s clients, the conviction was reversed. However, where the money paid to the public official was traceable to defendant’s client, and thus defendant and the official worked together to obtain the money from the third party, the conspiracy conviction was affirmed. Accordingly, defendant’s convictions were reversed in part, and affirmed in part.



    • 18 USC § 1956 & 57 - Money Laundering

  U.S. v. Jamieson, 02-3403 (10/28/05)

    > Defendant defrauded numerous investors by selling fraudulent insurance policies and making misrepresentations regarding escrow accounts. Defendant was charged with numerous federal offenses, including multiple counts of money laundering under both § 1956 and § 1957. After jury trial and sentence, defendant appealed challenging the sufficiency of the evidence to support the convictions because the laundered money could not be traced to specific unlawful activity.

    * Holding: The court held that, in proving § 1956 money laundering charges, the government was not required to trace the origin of all funds to determine which funds came from which investor transaction. It was sufficient in the case for the government to prove that defen