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« Shocker: Spitzer Doing Whores For Six or Seven Years, Maybe Even Ten, and Feds Can Prove It | Main | Mary Anne Busted for Mary Jane »
March 11, 2008
Non Spitzer Breaking News: Adm Fallon, Commander of Central Command Resigns
Resigns, pushed. Tomato, tomahto.
WASHINGTON Admiral William Fallon, the head of U.S. Central Command, which leads U.S. operations in Iraq and Afghanistan is stepping down, Defense Secretary Robert Gates announced Tuesday.
Apparently this had a lot to do with an article in Esquire where the Admiral voices disagreement with the administrations thoughts on Iran.
The article credits Fallon with "brazenly challenging his commander in chief" over a possible war with Iran, which Fallon called an "ill-advised action," and implies Fallon would resign rather than go to war against Iran.
Fallon took command of CentCom (the command responsible for both Iraq and Afghanistan) a few days less than a year ago.
Expect Democrats to have a field day with this.
Also, I am not familiar with the author, Thomas Barnett, but he throws around the term neocon a little too much for my liking. Absent an actual definition, it seems to be nothing more than a taunt for people he doesnt like.
Admiral Fallon was not pleased with the results of the article, calling it, "poison pen stuff" and "really disrespectful and ugly."
Not everyone thinks this move is about policy differences. Blackfive says it may be part a plan for General Petraeus to take over Central Command.
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New to trek literature please help - where to begin
View Single Post
March 15 2013, 01:33 PM
Re: New to trek literature please help - where to begin
King Daniel wrote:
The version of George Kirk seen in the last movie was based on the one in Diane Carey's novels
Final Frontier
(a casualty of
Star Trek: Enterprise
continuity-wise, but a fantastic read nonetheless) and
Best Destiny
A couple of problems with that statement. One, only the
George for Kirk's father was really following the books' lead; Carey's George Kirk was a redheaded security chief with a rather different personality from the character in the movie. And in Carey's version, Jim Kirk had a strained relationship with his father, while the movie established that Prime-universe Kirk had gotten along quite well with his.
And two, it was actually Vonda N. McIntyre in
Enterprise: The First Adventure
who originally coined the names George and Winona for Kirk's parents, a precedent Carey subsequently followed; so McIntyre, not Carey, is the one you should credit.
And yes, I know the screenwriters have
in interviews that they read and liked Carey's novels. But the fact is that the George Kirk in the movie has nothing specific in common with Carey's version of the character besides the name and the fact that he was in Starfleet. Just because they read the books doesn't mean they copied them.
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subset: commoncrawl


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Author has written 32 stories for Naruto, Inuyasha, Vampire Knight, Transformers, and Aliens/Predator.
Dear fan-fiction members,
If you read my stories, and you find something wrong it's because I have no Bata reader so if you're interested please send me an email. I have gone through all of my stories I have improved them to the best of my abilities as of 11/26/2013 please let me know if I used the wrong file on a story I will fix it. I am a passive writer so be forewarned that my stories do contain a bit of passive content.
Suggestions on how to improve a story is always welcomed but bashing it when you have written none yourself isn't very helpful. If you say my character is too Mary sue, and don't give me an example on how she could be better how am I to learn? I do often borrow Name's from other Anime's but none of my stories are cross overs. The stories involving Naruto are the oldest the newer stories are considerably longer. Guest reviews that trash a story are immediately deleted and ignored.
Don't expect answers to anonymous reviews you must have an account for me to be able to respond to any questions. All anonymous questions will be deleted but I do accept anonymous reviews.
08/2014 After completion of current unfinished story I will be taking a break life has become busy I am working on writing a romance to be published if it's good enough to make it. I will post new stories on occasion but only once I am close to completion.


text:
Basketball: Bulldogs smash South
Published: Saturday, December 13, 2003 at 9:14 a.m.
Last Modified: Saturday, December 13, 2003 at 12:00 a.m.
The Thomasville boys and girls teams had an easy time of it Friday, posting a pair of lopsided Yadkin Valley Conference wins over South Davidson in Thomasville.
In the boys' game the Bulldogs posted an 89-52 win. Brent Lemay scored 16 points to pace the home team, Jeremy Graves had 14, Bryan Shore 13 and Josh Sweitzer 10. Thomasville, now 1-1 in the YVC, 2-2 overall, took control early, outscoring the Wildcats 31-13 in the first quarter.
Patrick Hogan scored 18 for South, now 0-3 in the league, 1-7 overall.
The Thomasville girls continued their winning ways with a 61-22 victory over South. A 20-4 third-quarter spurt did in the Wildcats, who stayed relatively close with the two-time defending 1-A state champs. Erin Crowder led a balanced Thomasville attack with 12 points. The Bulldogs improved to 2-0 in the YVC, 5-0 overall.
South dipped to 2-1 in the conference, 3-5 overall.
Thomasville travels to Lexington Wednesday while South is off until the LSB Christmas Classic, which begins Dec. 26 at Ledford.
Reader comments posted to this article may be published in our print edition. All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.
Comments are currently unavailable on this article


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text:
Wyndham Philadelphia Historic District
- Free WiFi
Liberty Bell: 3 blocks
The hotel is in the center of the city's historic neighborhood, a few blocks from the Liberty Bell and the Betsy Ross House. Also within 2 blocks are several bus stops and the 5th Street subway station, so it's easy to get around the rest of the city.
U.S. Mint and bus tours
Wyndham Philadelphia Historic District is 2 blocks from the United States Mint, where you can take a tour. To see more of the city, hop-on, hop-off bus tours stop near the hotel, and you'll be able to visit sites like the Philadelphia Art Museum and Rodin Museum.
Philly cheesesteak dinner
You can try a Philly cheesesteak and other classic American dishes at Coin's Restaurant and Pub, and you can go for a swim in the outdoor rooftop pool, open from Memorial Day to Labor Day. To stay in shape, there's a fitness center, and the hotel has its own covered garage.
Free WiFi, room service
You can order room service and settle in with free WiFi or a program on the large, flat-screen HDTV with satellite channels and on-demand movies. The 368 guestrooms also come with a coffeemaker, and some have a compact refrigerator and microwave.
Main amenities
- 364 guestrooms
- Restaurant and bar/lounge
- Breakfast available
- Seasonal outdoor pool
- Health club
- Self parking
- Business center
- Airport shuttle
- 24-hour front desk
- Air conditioning
- Front desk safe
- ATM/banking services
What's around
- In Old City, Philadelphia
- Liberty Bell Center (0.3 mi / 0.6 km)
- Independence Hall (0.3 mi / 0.6 km)
- Reading Terminal Market (0.7 mi / 1.2 km)
- Ben Franklin National Memorial (1.5 mi / 2.4 km)
- Temple University (2.6 mi / 4.2 km)
Beds were SO comfy! Room was immaculate and perfect. Front desk service was outstanding.…
I had Gift cards stolen out of my room when an unauthorized employee entered my room with…
Enter dates to check prices
Hotel Info: 866-539-8117from $144
- Two Double Beds, Non-Smoking
- One King Bed, Non-Smoking
- One Queen Bed, Non-Smoking
- One Queen Bed, Non-Smoking, Accessible
- One King Bed, Non-Smoking
- One Queen Bed, Non-Smoking, Roll In Shower
- Two Double Beds, Non-Smoking
- Deluxe, One Queen Bed, Accessible
- Standard, Non-Smoking
- One Queen Bed, Non-Smoking, Accessible
- Executive, One King Bed
- Premium Room, 2 Queen Beds (Renovated)
- One Queen Bed, Non-Smoking, Accessible
- Executive, Two Double Beds
- Standard Room, 1 Queen Bed
- Premium Room, 1 King Bed
- Deluxe Room, 1 King Bed (Renovated)
- Group Room
- Premium Room, 1 King Bed (Renovated)
- Deluxe Room, 2 Queen Beds (Renovated)
Also popular with travelers from the USA
At a glance
Key facts
Hotel size
- This hotel has 364 rooms
- This hotel is arranged over 8 floors
- Check-in time starts at 4 PM
- Check-out time is 11 AM
- Express check-in
Required at check in
- Credit card or cash deposit required
- Government-issued photo ID required
- Minimum check-in age is 21
Travelling with others
- Pets not allowed
- Free WiFi in public areas
- Free WiFi in rooms
- Airport shuttle *
- Self parking *
- Accessible parking
In the hotel
- Breakfast daily (surcharge)
- Restaurant
- Bar/lounge
- Room service (during limited hours)
- Outdoor seasonal pool
- Health club
- Business center
- Conference space size (feet) - 0
- Conference space size (meters) - 0
- One meeting room
- 24-hour front desk
- Concierge services
- Dry cleaning/laundry service
- Laundry facilities
- Free newspapers in lobby
- Luggage storage
- Elevator/lift
- ATM/banking
- Safe-deposit box at front desk
- Designated smoking areas
- Disabled parking
- Accessible path of travel
- Braille or raised signage
- Accessibility equipment for the deaf
- Accessible bathroom
- In-room accessibility
- Roll-in shower
In the room
- Climate control
- Air conditioning
- Coffee/tea maker
- Iron/ironing board
- Hair dryer
- Pay movies
- Cable TV channels
- Video-game console
- Desk
- Free newspaper
- Free WiFi
Special features
DiningCoins Restaurant and Pub - This restaurant specializes in American cuisine and serves breakfast, dinner, and light fare. Guests can enjoy drinks at the bar.
Awards and affiliations
Green / Sustainable Property
This property participates in Green Key Eco-Rating Program, a program that measures the property's impact on one or more of the following: environment, community, cultural-heritage, the local economy.
Wyndham Philadelphia Historic District's small print
Also known as
- Philadelphia Wyndham Historic
- Wyndham Philadelphia Historic District
- Holiday Inn Philadelphia Historic District
- Philadelphia Holiday Inn
- Philadelphia Wyndham Historic District
- Wyndham Historic
- Wyndham Historic District
- Wyndham Historic District Hotel
- Wyndham Historic District Hotel Philadelphia
- Wyndham Historic District Philadelphia
- Wyndham Historic Philadelphia
- Wyndham Philadelphia Historic
For transfers, guests must contact the property before arrival at the number on the booking confirmation.
Optional extras
Self parking costs USD 36.75 per day
Airport shuttle service is offered for an extra charge
We have included all charges provided to us by this hotel. However, charges can vary, for example, based on length of stay or the room you book.


text:
Release Date:
February 1, 2010
Date Published:
February 1, 2010
Although Jeff and Tad, encouraged by a new friend, Lindsey, make a deal to help one another overcome aftereffects of their cancer treatments in preparation for eighth-grade graduation, Jeff still craves advice from his older brother Stephen, who is studying drums in Africa.
In this sequel to DRUMS, GIRLS, AND DANGEROUS PIE, Steve's little brother, Jeffrey, is the narrator. In remission from cancer, Jeffrey still finds life challenging, not only because of his history, but the drama of being in eighth grade. Steve has gone off to Africa to find himself, and Jeffrey's best friend, Tad, is incredibly preoccupied. Feeling like he has no one to turn to, Jeffrey is even more confused when a pretty girl in his class seems to like him. Relationships, growing up, and surviving cancer create a compelling story. A 2011 Schneider Family Book Award recipient in the Middle School category.
- Genre: Juvenile Fiction
- Subgenre: Social Issues / Adolescence, School + Education, Family / General, Health + Daily Living / Diseases
- Age: Teen
- Language: English
- Author: Jordan Sonnenblick
other Info.
- Online Item #: 11921366
- Store Item Number (DPCI): 247-02-8810
- Item can be gift wrapped.
- Made in the USA or Imported


text:
The National Bank of Greece (NBG), which owns Finansbank in Turkey, bought a 40-story office tower in central Istanbul for $303 million, daily Hürriyet has reported March 18.
The 170-meters high Crystal Tower was sold by Koru Property Investments, a subsidiary of Soyak Group in Turkey. The building, located in Istanbul's Levent district, has a 60,000 m2 area of usage.
The deal is reported to be one of the largest transactions in the Turkish commercial property market in recent years. The NBG is expected to use the tower as the new head office of Finansbank.
The operations in Greece yield 50 percent of the NBG's pretax pre-provision profits are, complemented by 35 percent from Turkey and 15 percent from Southeastern Europe, according to figures released by the Greek company.
The total assets of Soyak Group, which operates in the real estate, energy, cement and casting sectors in Turkey, stood at $1.578 million in 2012.
Assuming this is true, I'm interested in opinions as to what having, or being able to purchase, a property of this magnitude indicates about NBGs capital position and/or outlook.
"It is expected that the National Bank of Greece, will use the "Crystal Tower" as the new headquarters for its subsidiary in Turkey, Finansbank." Sounds like NBG is planning to keep Finansbank, or at least may only sell a portion of it, if any. Otherwise, why would they make a 3 million purchase for new headquarters? Therefore they must have other means to raise capital, and it will be nice when the news comes out.
Another poster mentioned that NBG may be planning the sale of bonds.


text:
GorillaTorch Blade
Christen Costa
Grew up back East, got sick of the cold and headed West. Since I was small I have been pushing buttons - both electronic and human. With an insatiable need for tech I thought "why not start a blog focusing on technology, and use my dislikes and likes to post on gadgets."
Sponsored Content
Homepage » GorillaTorch Blade Tactical Flashlight » GorillaTorch Blade


text:
Kavli Institute of Nanoscience
|This article needs additional citations for verification. (March 2015)
The Kavli Institute of Nanoscience Delft was established in 2004 at the Department of NanoScience, Faculty of Applied Sciences, Delft University of Technology through a grant by the US-based The Kavli Foundation.
The Kavli Institute of Nanoscience at Delft University of Technology consists of two departments, Department of Quantum Nanoscience and Department of Bionanoscience, which were created after the Department of NanoScience was split, and a nanofabrication cleanroom facility. With a staff of 25 professors and over 80 PhD and postdoctoral students, the Institute studies new physics and exploits novel principles in nanostructured devices with a new functionality. The nanostructures vary from superconductors to biopolymers and are obtained from nature or fabricated with bottom-up methods (starting with atoms or molecules) or top-down techniques (such as electron-beam lithography).
An article in de Volkskrant, a Dutch national newspaper in 2012, claimed that four of the ten most cited scientists in the Netherlands belong to the institute.[1]
- ^ van Calmthout, Martijn (October 27, 2012). "Topwetenschapper is natuurkundige of arts". de Volkskrant (in Dutch): 9.
External links[edit]
|This Netherlands-related article is a stub. You can help Wikipedia by expanding it.


text: The popular Jewish music entertainer Aharon Razel has launched his seventh original album in Tel-Aviv. His brother Yonatan, and cousin Nitzan-Chen joined the celebration. Check it out here.Tags: Inside IsraelMade in IsraelRelated StoriesFight Continues for Gilo FamiliesSingle Mother Wins the LotteryWanted: Jews with a Sense of MissionSiblings Seek Status for Secret Palestinian MotherAward for Veteran Hareidi SoldierShas Council's First Meeting without Rabbi YosefWhat Rabbi Yosef Left BehindFather of 8 Wins NIS 26 MillionIsrael Jumps to 13th in Math OlympicsJewish 'Hermit' from Herzliya Speaks


text:
My sessions and downloadable scripts from MQTC 2.0.15 are now up on the Links page.
Notify me!
Recent Posts
- MQTC Sessions and downloads posted
- Meet the Bat-O-Meter!
- Time for MQ to get serious about instrumentation and admin. Again.
- First inaugural Bats of a Feather
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- Zero to SSL in under 5 Minutes
- Spring Cleaning a Windows MQ Installation
- IBM MQ Security Requirements Questionnaire
Where in the world is T.Rob?
Stack Exchange MQ Q&A
- STRMQM fails with AMQ7047 – stackoverflow.com
- Multiple MQ listeners not working – stackoverflow.com
- Small messages are not received immediately with WebSphere MQ MQGMO_BROWSE – stackoverflow.com
- How to connect and send data to MQ with java – stackoverflow.com
- Queue Manager User ID initialization failed – stackoverflow.com
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A bill designed to shrink the number of Juvenile Court judges in New Orleans advanced today at the state capitol over the arguments of two judges who tried to lobby for their jobs.
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Click any word in a definition or example to find the entry for that word
90% of the time, speakers of English use just 7,500 words in speech and writing. These words appear in red, and are graded with stars. One-star words are frequent, two-star words are more frequent, and three-star words are the most frequent.
Given how studiedly manscaped he is these days, it wouldn't be the most enormous stretch if trash-talking dandy Shane Warne simply swept into the Ashes commentary box on the first day of the series, adjusted his monocle, and declared that to be tired of sledging is to be tired of cricket.
in an online conversation, repeatedly asking a person questions which suggest that you are interested in what they are talking about, but are actually intended to annoy themBuzzWord Article
Open Dictionary
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text:
New single Heroine released today (5th Oct.), USA shows and new Helsinki date added to European tour. Continue reading
Category Archives: News
23:23 To Die On A Faraway Island With You EP out now
The new four track EP from 23:23 is released today, 2nd October. Continue reading
Introducing Puunhalaaja. Listen/download first single, Härkä ja paimen
Soliti welcomes Puunhalaaja to the family. Debut album released on the 20th November.
23:23 announce new EP, share new single Letters
TO DIE ON A FARAWAY ISLAND WITH YOU EP (Soliti 045) to be released 2nd October 2015.
LOVE SPORT 'Almost Doesn't Mean You Made It' out now
LOVE SPORT's 2nd EP release is out today (04.09.2015), available as digital stream/download and on ltd edition cassette.
Cats Of Transnistria Thunder Comes single out now
Happy Release day to Cats Of Transnistria, new single Thunder Comes b/w Ishtar/Astaroth is out today (28.08.15)
LOVE SPORT announce new EP, share free download for single Genius
LOVE SPORT return with a new EP, Almost Doesn't Mean You Made It, which sees a worldwide release through Soliti on the 4th Sept.2015.
Brand new Cats Of Transnistria: listen to Thunder Comes
Much has happened for Cats Of Transnistria in the last year.


text:
VeriShip will add jobs, expand OP headquarters Read full article
Objective decisions require objective data, and with VeriShip, that's where it all starts. Our proven cloud-based software connects to your parcel accounts in minutes, importing your electronic invoices from your carrier, identifying savings opportunities, and requesting refunds to recoup those costs.
Data is good, but ongoing analysis is better. Likewise, diagnosis analyzes new data on a continuous basis to uncover shipping cost trends to improve your overall "parcel health." Through diagnosis, we make use of critical parcel data gained from our more than 3,000 clients to change overall outcomes that affect your bottom line.
It's one thing to recover parcel dollars lost. It's another thing entirely to uncover new opportunities to save money. Our data scientists can use real-time benchmarking and business intelligence gained from 10 years of data and more than 3,000 clients to design prescriptive solutions to your unique parcel environment.
Data-driven decisions save money. And this data doesn't lie.
VeriShip clients
average setup
average savings
How much can you save?
After our meeting today and reviewing everything, I really cannot think of a reason to not do this.
I did some digging comparing our rate of success in getting credits from FedEx through our internal audit process vs. the VeriShip audit process. We were blown away. Our success rate was pretty dismal. We are delighted with the results for the VeriShip audit service.
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text:
tag:blogger.com,1999:blog-94195662015-10-09T13:11:19.785-04:00Sixth Circuit BlogSummarizing opinions in selected criminal cases from the Sixth Circuit Court of AppealsKevin Schad appellate division SDOHhttp://email@example.com:blogger.com,1999:blog-9419566.post-87772711082321502272015-09-24T13:42:00.000-04:002015-09-24T13:42:07.565-04:00Pre- and post-Miranda confessions take center stageIt's been another busy (and, at times, discouraging) week for published criminal-law opinions in the Sixth Circuit. The court dipped into legal esoterica in the Olive opinion, addressing at length whether one of two money-laundering counts should have merged in light of United States v. Santos, 553 U.S. 507 (2008). (The court concluded that there was a "merger problem," but that, under Santos, the consequences were not "markedly increased" by virtue of the error, so no harm no foul.) The court also reversed the grant of sentencing-phase ineffective-assistance-of-counsel relief in a death-penalty case in Morris, once again demonstrating that it believes that AEDPA all but precludes relief even for objectively egregious IAC claims.

Perhaps most relevant to the defense bar is the opinion in United States v. Ray, in which the court took a hard look at the relationship between pre- and post-Miranda confessions, wading into a circuit split on the subject.

Based on a (later-contested) search warrant, officers discovered marijuana and firearms in Mr. Ray's home. According to Ray, the officers threatened to arrest Ray's live-in girlfriend --- the mother of his 14-year-old son --- and make his child a ward of the state if he did not talk to them. Prior to receiving Miranda warnings, Ray took responsibility for all of the contraband in the house. An hour and a half later, Ray made statements at the police station that were consistent with his pre-Miranda statements, but the district court refused to suppress those statements. The district court did not consider the Supreme Court's opinion in Missouri v. Seibert, 542 U.S. 600 (2004), which addressed such questions. This failure alone was enough to warrant reversal, but the Sixth Circuit had to address what test to apply from Seibert's sorely divided opinion. Despite contrary precedent from other circuits, the court determined that because the plurality and dissent each received four votes, none of the opinions in Seibert "announce[d] a binding rule of law." Instead, the Sixth Circuit would have to formulate its own test. In doing so, it adopted the multi-factor test announced by the Seibert plurality, under which the admissibility of such statements "hinges on whether a 'reasonable person in the suspect's shoes could have seen the station house questioning as a new and distinct experience, [and whether] the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.'" The court further detailed the factors to be considered in that analysis.

The opinion is also highly citable with respect to what evidence provides proof that a firearm was possessed "in furtherance of a drug trafficking crime" under 18 U.S.C. 924(c). Ray had three firearms, and the court held that two of them would not support such a conviction despite close proximity to drugs. One was an unloaded shotgun propped behind a door in the same room where drugs were found (with shotgun shells found in the same room), and another was a rifle in a room with no drugs. The court held that neither was "strategically located so that it is quickly and easily available for use." Unfortunately for Ray, a third weapon did suffice to meet the "in furtherance of" test, but this case may provide ammunition (pun intended) for defendants in future cases.anbrandonhttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-62436866589469936332015-09-15T11:20:00.003-04:002015-09-15T11:20:15.655-04:00Week of September 8-11Based on last week's rulings, I have three cases to detail:

1) In United States v. Callahan et. al, Case No. 14-3771, the Sixth Circuit affirmed the conviction and sentences for a case relating to forced labor allegations. The defendants went to trial, were convicted, and filed post-conviction motions. The first issue related to a jurisdictional and statutory interpretation issue. Specifically, the appellants sought relief under Bond v. United States, a recent Supreme Court case regarding the reach of federal statutes. Last year, in United States v. Toviave, the Sixth Circuit extended Bond's holding in a forced labor case, holding Toviave's conduct was not the type of conduct Congress meant to regulate and criminalize. In the instant case, the Sixth Circuit distinguished Toviave, finding the appellants conduct was more consistent with the aims of the statute (18 USC 1589). The Court concluded "a rational trier of fact could conclude that S.E. provided labor or services." p. 12. The Court's conclusion makes it seem that the appellate claim was on a weight of the evidence, or sufficiency claim, but Bond/Toviave go directly to the reach of the statute in a more jurisdictional and federalism standpoint. So, the Court's conclusion leaves us wondering.
There are also some interesting jury instruction issues regarding the kidnapping instruction and the quantum of proof required by the instructions.

2) United States v. Brown, No. 13-1761. This case presents an interesting set of circumstances, as law enforcement used an informant to set up a drug buy from the appellant. This led to Appellant being arrested during a traffic stop. Warrants were subsequently obtained for his house and cell phones, leading to additional evidence. On appeal, Brown challenged the denial of his motions to suppress. The Court discussed the requirement that a search warrant must have a nexus to the evidence sought and the place searched. p. 8. The Court looked at the fact that the affidavit to search the home contained no evidence that Brown sold drugs from the home or used the residence for storing drugs. The court stated it was a "close question" as to whether this met the demands of Fourth Amendment, but because the affidavit contained enough of a connection. The Court relied entirely on the fact Brown's car was registered to his home, and therefore there was a fair probability his home would contain evidence of the crime. p. 12. The court's analysis of the facts is pretty short considering the legal analysis that precedes it; the court's awareness that this is a "close question" should give us some solace (but not Mr. Brown), but it really seems like a case of the tail wagging the dog. Judge Clay writes a dissent on this issue detailing the lack of evidence supporting a just affidavit.
If you want to bone up on your evidence caselaw regarding authentication, there is also a discussion on whether a "drug ledger" was properly admitted. The court held its contents were not hearsay, and an agent involved in the search could testify to authenticate it.

3) McCarley v. Kelly, No. 12-3825. This is a 2254 habeas case. The petitioner was convicted in state court of aggravated murder. McCarley's girlfriend was killed in 1992, and police claimed her 3 year old son identified McCarley. The child was taken to a child psychologist to elicit similar statements days later. Twelve years later, McCarley was indicated. He was found guilty, but an error vacated the jury's first verdict. In 2007, a second jury found him guilty and he was sentenced to life. He proceeded with habeas, which was initially denied by the district court. The Sixth Circuit reversed and ordered a conditional writ. In June, the Supreme Court vacated that opinion based on David v. Ayala. On remand, the district court again denied relief. In the instant appeal, the Sixth Circuit reversed and remanded, again ordering a conditional writ.
Now that all the procedural history is out of the way, here's the merits. The Court held that the admission of the child psychologist's testimony was an unreasonable application of clearly established federal law. Specifically, the testimony violated the confrontation clause and Crawford v. Washington. At trial, one of the lieutenants was permitted to read letters between himself and the psychologist detailing the results of the evaluation of the child. The Court found this was "testimonial" evidence, under Crawford and Davis v. Washington. The Court declared the child psychologist was acting more as a police interrogator than a private counselor, and thus an agent of law enforcement. p. 13. The Court relied on the trial testimony in which law enforcement stated the psychologist's "main reason" for the sessions with the child were to "get information" police could not get from the child to identify the suspect for the investigation. p. 14. The court held this was classic testimonial evidence and therefore the state court unreasonable applied Crawford/Davis. The Court then provided a detailed analysis of the remaining testimony, showing "the importance" of the testimony of the psychologist both in the case-in-chief and closing argument. Because the psychologist's testimony was the "keystone" of the state's case, admission of the admission was not harmless error and therefore required relief.
This case provides a very thorough analysis if you have a habeas issue regarding confrontation.

Jeff firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-83012948194670513162015-09-01T14:44:00.000-04:002015-09-01T14:44:35.790-04:00Objections to facts in the PSR: this is not just a child porn caseBottom line for child porn offenses:

United States v. Cover, 14-3641 holds that the depiction of an 11- or 12-year-old child penetrated orally by an adult penis is not per se a depiction of sadistic or masochistic conduct. There was no evidence in the record that the image was violent or depicted the infliction of physical or psychological pain. The Sixth ruled this holding was not in conflict with United States v. Groenendal, 557 F.3d 419 (6th Cir. 2009) ("penetration of a pre-pubescent child by an adult male constitutes inherently sadistic conduct") because an 11- or 12-year-old child is not necessarily pre-pubescent. The Court also noted, "As sad as it is, there is no denying that many eighth-graders these days voluntarily engage in oral sex, presumably without experiencing pain."

IMPORTANT discussion for anyone filing Shepard-based objections to Presentence Reports regarding ACCA, Career Offender, 2K2.1, etc. etc. etc.:

Remember, a "district court is allowed to accept as true all factual allegations in a presentence report to which the defendant does not object." United States v. Bondurant, 146 F. App'x 762, 763 (6th Cir. 2005) (quoting United States v. Levy, 250 F.3d 1015, 1018 (6th Cir. 2001). In Cover, the Sixth reminds us the district court can rely on facts in the PSR unless there is a "dispute." "To create a factual dispute, a defendant 'must produce some evidence that calls the reliability or correctness of the alleged facts into question' - a burden of production that requires 'more than bare denial.'" Cover at *2(citing United States v. Lang, 333 F.3d 678, 681 (6th Cir. 2003).

It would be insufficient for prosecution or defense to file an objection that merely stated, "defendant/government objects to the information contained in paragraph 30" or "objects... because it is not true." For instance, in the context of information that might ultimately be used in a Shepard analysis, the objection should contain a discussion about how the probation officer preparing the report is allowed to glean information from non-Shepard sources and those have not been deemed reliable enough for a Shepard analysis, as well as an offense-specific discussion of what the Shepard documents do show about a particular offense.Laura Davis, AFPD, FDSEThttp://email@example.com:blogger.com,1999:blog-9419566.post-55520747135101746412015-09-01T14:08:00.000-04:002015-09-01T14:08:02.772-04:00State restoration of rights does NOT restore federal gun rightsIn a lengthy opinion today, the Sixth Circuit ruled that even though a FEDERAL felon had their Tennessee state civil rights fully restored - including specifically his right to have a firearm - his federal right to firearms had not been restored. The majority in Walker v. United States, 14-5703 applied the test set out in United States v. Cassidy, 899 F.2d 543, 550 (6th Cir. 1990): in determining whether a person's civil rights were restored, the court should look at the right to vote, the right to sit on a jury, and the right to seek and hold public office.

Mr. Walker's right to seek and hold public office was never lost - even felons can run - so it was never restored. You cannot restore that which you have not lost in the first place.

Mr. Walker's right to sit on a federal jury was assumed for the sake of argument to have been lost and then restored, but one restoration is not enough.

Mr. Walker's right to vote was not restored in any way that directly addressed his personal felony conviction, or the status of all felons, and so does not "count" under this analysis.

So, no restoration and restoration without proper consideration are problematic.

Judge Clay filed a dissent.

The case is very dense and a good read to see just how detailed a statutory interpretation the Sixth is willing to go through.Laura Davis, AFPD, FDSEThttp://email@example.com:blogger.com,1999:blog-9419566.post-63732664429809374722015-08-31T11:29:00.002-04:002015-08-31T11:29:39.914-04:00Evading arrest not a predicate for ACCAVery quick, unpublished opinion today in United States v. Odell Holder, 14-5666. Case was remanded by the Supreme Court for evaluation under Johnson. Sixth held that evading arrest is not a predicate offense.Laura Davis, AFPD, FDSEThttp://email@example.com:blogger.com,1999:blog-9419566.post-50525289946647850012015-08-21T10:19:00.002-04:002015-08-21T10:37:12.765-04:00Summons Is Not "Intervening Arrest" for Career-Offender PurposesIn United States v. Powell, No. 14-3932 (Aug. 19, 2015), the Sixth Circuit clarified application of the career-offender provision under the Sentencing Guidelines.

Powell argued that the district court erred in classifying him as a career offender because the court mistakenly counted two of his prior convictions separately.

The Guidelines explain that "prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest." U.S.S.G. § 4A1.2(a)(2). "If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence." Id.

The district court relied on pair of assault convictions to sentence Powell as a career offender. But Powell merely received a summons for the first of these charges before being arrested two months later on the second charge, and he was sentenced for both crimes on the same day. The Sixth Circuit sided with an en banc Ninth Circuit decision, and dicta from other circuits, to decide that an intervening summons or citation does not constitute "an intervening arrest" under § 4A1.2(a)(2). The Sixth Circuit declined to follow a contrary decision from the Seventh Circuit.

On another important note, Powell had waived most of his appellate rights as part of his plea agreement, but preserved his ability to challenge the determination of his criminal-history category. This exception, the Sixth Circuit decided, allowed an appellate challenge to the career-offender determination, even though it affected both Powell's criminal history and offense level. Even more interesting, the court's holding ultimately did not change Powell's criminal history category: his score dropped from 20 to 15, leaving him in category VI. But the Sixth Circuit nonetheless remanded because of the change in offense level.Benton Martin, E.D. Mich.http://email@example.com:blogger.com,1999:blog-9419566.post-46534757414491798932015-08-11T11:39:00.000-04:002015-08-11T11:42:13.963-04:00"Legal Mail" to Correctional Facility Includes Mail From Prospective AttorneyToday's sole published opinion, ACLU Fund of Michigan v. County of Livingston is not a criminal case. But it seemed appropriate to blog about it here because of the interest it may hold for criminal practitioners in the Sixth Circuit.

Here are the facts: the Livingston County (MI) jail has a very restrictive mail policy. Anything that's not legal mail has to be on a postcard. The jail administrator in charge of determining what constitutes legal mail thinks that only mail from a court and mail from an attorney to a current client constitutes legal mail. So the ACLU sent several letters to Livingston County inmates offering to help them challenge the county's policy. The letters were in enveloped marked "legal mail" and were signed by an attorney. But since Livingston County didn't consider them to be "legal mail," they were never delivered. The ACLU filed suit, seeking injunctive relief. The district court granted a preliminary injunction, and the defendants sought interlocutory review.

In its opinion, the court (Judges Moore, Siler, and Stranch comprised the panel, with Judge Moore writing) held that the jail's overly restrictive policy likely constituted violations of both the First and Fourteenth Amendments. The court's discussion at the bottom of page 10 of the opinion is particularly instructive: the court notes that legal services organizations like the ACLU must be able to send confidential communication prior to initiating legal action, and that both the inmate and the attorney have a strong interest in keeping communications confidential during the investigate stages of a legal matter. That should be particularly helpful for attorneys considering taking on postconviction or habeas matters on behalf of an inmate.

the A
Donald Caster, Ohio Innocence Projecthttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-29460226941562508692015-08-09T22:33:00.000-04:002015-08-09T22:33:12.547-04:00Crimes of Violence Determined Under Shepard
The Sixth Circuit determined that Tennessee's aggravated burglary statute is divisible and, further, may constitute a "crime of violence." In United States v. Ozier, the Court used the modified categorical approach to determine whether the defendant committed a breed of aggravated burglary that constitutes a crime of violence under Section 4B1.2(a)(2) of the United States Sentencing Guidelines. The decision demonstrates the continued viability of Descamps and Shepard when determining career offender status (and potentially the ACCA) following Johnsonv. United States. <o:p></o:p>

In Ozier, the District Court concluded that Ozier had committed one of the enumerated offenses (burglary of a dwelling) in Section 4B1.2(a)(2). In conducting its analysis, the Sixth Circuit first determined (under Descamps) that Tennessee's aggravated burglary statute is divisible. Having established that the statute is divisible, the Court then analyzed the plea colloquy underlying the state conviction (under Shepard), which confirmed the District Court's conclusion. Because the underlying crime fell within the enumerated offenses, the Court declined to consider whether Johnson invalidated an analysis under the residual clause.<o:p></o:p>

The case is United States v. Ozier, 14-6439 (6th Cir. August 5, 2015).<o:p></o:p>
Robert Dietrickhttps://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-68667020854069345312015-08-06T23:05:00.000-04:002015-08-06T23:05:26.824-04:00Insufficient Evidence: Failing to Connect the Defendant with the Crime
The Sixth Circuit reversed a child pornography conviction because the Government failed to present sufficient evidence. In United States v. Lowe, police officers found child pornography on a computer at the defendant's (James Lowe's) home. But three people lived at the residence before the police search and the Court found that the Government failed to adduce evidence sufficient for any rational juror to conclude that it was the defendant, and not one of the other residents, who knowingly possessed the illegal computer files.<o:p></o:p>

After developing probable cause that child pornography existed on a computer at the defendant's residence, the police searched the residence and found three computers: a laptop with the username "Stacy;" a desktop computer; and a laptop with the username "Jamie." It was on this third computer that the child pornography was located. The police found a form with James's name, social security number, and date of birth in the office with the third computer.<o:p></o:p>

But the Court noted that none of the computers required passwords. And the peer-to-peer file sharing program apparently involved with the child pornography had to be opened in order to potentially realize that the computer had child pornography (although there were some files that potentially could have contained illegal material in the recycling bin). <o:p></o:p>

According to the Court, the Government failed because its evidence only demonstrated that the defendant owned and occasionally used the laptop, not that he was aware of the illegal material. To meet its burden, the Court suggested that the Government needed to show (if such evidence existed) that use of the illegal material occurred at or near the time the computer was used for some other purpose that identified the individual using the computer as the defendant. On the record before the Court, it concluded that "the evidence did not suggest that someone using the laptop for innocent purposes would know about the ongoing child-pornography downloads."

The Court rarely finds cases in which the Government has failed to submit sufficient evidence--even when the Government relies only on circumstantial evidence (as it did in Lowe). Hence, this case is instructive with respect to when the Court may find that the Government's intended inferences amount to nothing more than speculation.<o:p></o:p>
Robert Dietrickhttps://email@example.com:blogger.com,1999:blog-9419566.post-83766735191894262962015-08-06T22:45:00.000-04:002015-08-06T22:45:03.180-04:00Rule 12 Claims Now Reviewable for Plain Error
Failure to raise Rule 12 motions before appeal will result in a forfeiture (not a waiver) of the claim on appeal. In United States v. Soto (a multi-defendant appeal), one defendant failed to raise a severance claim until appeal. Under Circuit precedent, such a claim would have been waived. See, e.g., United States v. Walden, 625 F.3d 961, 967 (6th Cir. 2010). But that precedent relied on a previous version of the Federal Rules of Criminal Procedure. After analyzing the text of the 2014 Rule and the history of the Advisory Committee's consideration of the new text, the Sixth Circuit held that the defendant had merely forfeited his severance motion, not waived it. The panel then decided to apply plain error review to the claim. Unfortunately, the defendant could not overcome the plain error standard. But the Soto case opens forfeited Rule 12 claims to appellate review.

The case above is United States v. Soto, 13-2300 (6th July 24, 2015).<o:p></o:p>
Robert Dietrickhttps://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-29965600186789747872015-07-27T18:12:00.001-04:002015-07-27T18:12:41.523-04:00A bumper crop of opinionsSome days -- and even weeks -- you have to dig pretty hard to find a case that addresses an interesting issue in criminal law in the Sixth Circuit. Other days, such as last Friday, the corn is as high as an elephant's eye. And while everything did not go the way of the defendants of the world, some of the opinions were pretty good. With apologies for the rather cursory discussion, here's what you missed if you took a long weekend:

United States v. Detloff -- A nice win out of the FPD's office in Ohio on a supervised release issue. The Sixth Circuit found itself reminding district courts (and the government, and the appellant's original counsel) that Michigan's resisting arrest statute (Section 750.81d(1)) is not categorically a violent offense. The opinion also helpfully reminded the district court that the guidelines are not mandatory and do not require the supervised-release sentence to run consecutively to his other sentence.

United States v. Randolph -- Practitioners trying to raise arguments about juries' "inconsistent verdicts" run into a whole host of troubles, but not here. The jury found Mr. Randolph guilty of a conspiracy to manufacture or distribute drugs. But when the jury-form required the jury to indicate the quantity of the drugs that were involved in the conspiracy, the jury checked the box for "none" beside each illegal substance, thus suggesting that there were no drugs involved in the conspiracy. The Sixth Circuit ruled that this was not merely an "inconsistent" verdict between multiple counts, as the court has previously addressed. Rather, it was a mutually exclusive verdict within the same count that "reveal[ed] that the government failed to prove an essential element of the charged drug conspiracy," which was a matter of first impression for the court. The court also refused to remand for a new trial, instead remanding for entry of a judgment of acquittal. It explained that to do otherwise would subject the defendant to double jeopardy.

United States v. Bah -- "This case addresses whether an individual has a reasonable expectation of privacy in the magnetic strips on credit cards." (Somehow when an opinion from Judge Rogers, McKeague, and Sargus starts this way, you get the creeping feeling that the answer is going to be "no.") In answering that question in the negative, the court reasoned that the Supreme Court's recent opinion in Riley v. California is not applicable because credit cards do not contain as much information as cellphones. It also held that there was nothing wrong with the traffic stop that led to the search of the credit card. This part of the opinion offers the frustrating reminders that (1) Arizona v. Gant can be pretty toothless if officers just mumble the words "inventory search" at some time during the proceedings, and (2) Rodriguez v. United States doesn't get you very far in challenging prolonged stops (but then, we already knew that).

And finally, United States v. Soto presents a whole host of issues, most of which remind us that it is bad to be on the receiving end of federal charges alleging drugs, kidnapping, and firearms. Perhaps most interestingly, there is a long discussion of whether an appellant can raise a district court's failure to sever claims for the first time on appeal (yes, absent an "intentional relinquishment of the right") and under what standard of review (plain error). anbrandonhttp://email@example.com:blogger.com,1999:blog-9419566.post-46304732135734840052015-07-16T10:07:00.003-04:002015-07-16T10:07:51.854-04:00No reasonable suspicion BUT consent saved the day!!

In United States v. Lee, the Sixth Circuit held that a tip that there were possible weapons at a parolee's house was insufficient to provide reasonable suspicion to allow a search of the residence. Under the Court's "parolee search" precedent, officers may search a parolee's home without a warrant if they have reasonable suspicion of criminal activity. Here, the Court found that the tip that weapons were present in Lee's home was from an unknown source, passed through multiple layers of hearsay, and therefore could not provide a basis for the search.

However, the Court found that the defendant's own actions saved the otherwise impermissible search. When officers arrived at the apartment, they asked Lee whether there was anything in the apartment that Lee should not be possessing. Lee responded with "No go ahead and look"; which the Court found provided all the basis required for the search. Kevin Schad appellate division SDOHhttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-7483881542968080112015-07-12T17:23:00.000-04:002015-07-12T17:23:00.779-04:00Intent to Threaten? An Update
The Sixth Circuit, in an opinion written (perhaps coincidentally) by Judge Sutton, reversed a conviction for transmitting threats in interstate commerce (18 U.S.C. § 875(c)) because the judge instructed the jury that it needed only to find negligence and not that the defendant had some level of intent or awareness of wrongdoing. As discussed in the June 2 post, the Supreme Court (citing issues previously raised by Judge Sutton) found that negligence is insufficient to establish culpability. In United States v. Houston, No. 14-5295 (6th Cir. July 9, 2015), Judge Sutton noted that the defendant's "recorded diatribe . . . could plausibly [cause the listener to] think one of two ways about it. One possibility is that he meant just what he said, creating liability no matter what the standard is. The other possibility is that the recording caught him in a fit of rage in a prison cell (where he was in no position to act on his thoughts and where he did not necessarily know anyone other than his girlfriend was listening)." Under such circumstances, a jury instruction permitting a conviction for negligence led to reversible error (even under the plain error standard).<o:p></o:p>

The Sixth Circuit did not determine the appropriate mens rea standard in the Houston decision. Notably, however, the Government proposed a recklessness standard—which the Sixth Circuit avoided addressing in the first instance as part of its harmless error analysis.<o:p></o:p>

In reversing the conviction, the Sixth Circuit rejected Houston's challenge to the sufficiency of the evidence—that the Government offered insufficient evidence to establish Houston's mental state. The Court held that it would be unfair to require the Government to introduce evidence of an element not included in the jury instructions. In other words, the Court judged Houston's sufficiency challenge not on the legal elements of the charge, but on the elements of the charge as instructed to the jury. It remains to be seen whether the charging instrument is sufficient to support a criminal conviction.<o:p></o:p>
Robert Dietrickhttps://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-56874259202383712282015-07-08T23:30:00.000-04:002015-07-08T23:30:01.958-04:00Residual Clause of Career Offender Enhancement Void for Vagueness
Building on the Supreme Court's decision that the residual clause of the ACCA is void for vagueness, the Sixth Circuit struck down the residual clause of the career offender enhancement. In a per curiam decision, the Court recognized that it had "previously interpreted both residual clauses identically." And it noted that the Supreme Court vacated sentences involving the career offender enhancement after deciding Johnson. Only enumerated offenses may now be used to apply either the ACCA or the career offender enhancement.

Following Johnson, Congress and the Sentencing Commission will need to decide whether to substitute a more extensive list of qualifying offenses rather than rely on amorphous descriptions of possible candidate offenses. But if such a list yet requires any judicial factfinding, then that list may be subject to Sixth Amendment concerns (as reiterated by Justice Thomas in his concurring opinion).<o:p></o:p>
Robert Dietrickhttps://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-61686319627381214232015-06-21T16:28:00.000-04:002015-06-21T16:28:10.098-04:00Using Access Devices: the Sentencing Challenge
The Sixth Circuit has twice rejected challenges to the Government's proof of usability of an unauthorized access device at sentencing (determined under U.S.S.G. § 2B1.1). In both cases, defendants, relying on United States v. Onyesoh, 674 F.3d 1157 (9th Cir. 2013), argued that the Government must establish the "usability" of an access device when calculating loss. In Onyesoh, the Ninth Circuit held that the usability of some access devices may not be readily apparent. There, the Government conceded that "credit card numbers that had expired 35 years ago and were useless . . . would not be covered under the statute." Id. at 1160. Given that concession and after searching the record, the Ninth Circuit found no evidence to support the usability of certain credit card numbers that "had been expired for some three years" and "no showing Defendant ever took steps or attempted to use the expired numbers." Id.<o:p></o:p>

In United States v. Vysniauskas, 11-2503 (6th Cir. January 7, 2015), the Sixth Circuit nominally assumed without deciding that the Government must establish usability consistent with Onyesoh. Like Onyesoh, Vysniauskas challenged only the addition of certain access devices in the computation of his sentence. But unlike Onyesoh, the Sixth Circuit did not require any evidence of the usability of the challenged access devices. Instead, the Sixth Circuit relied on the district court's finding that the challenged access devices were associated with the overall fraudulent scheme because "they helped provide a cover of ordinary activity that lowered the banks' suspicions of the fraudulent withdrawals." Vysniauskas at 16. The Sixth Circuit held that such evidence justified the inclusion of those access devices when determining the appropriate loss calculation.<o:p></o:p>

In United States v.Beuns, 14-3326 (6th Cir. June 8, 2015), the Sixth Circuit again assumed without deciding the validity of Onyesoh. In Beuns' sentencing memorandum, he conceded that he had "embossed and encoded [the contested numbers] on plastic cards," then "attempted to purchase merchandise with the counterfeit cards." Beuns at 5. That concession was fatal to Beun's argument even under Onyesoh. <o:p></o:p>

In Beuns, the panel also expressed some reservation about the validity of Onyesoh by noting that the Ninth Circuit subsequently upheld a sentence (in an unpublished decision) on apparently less evidence than Onyesoh would require. See UnitedStates v. Tien Troung Nguyen, 543 F. App'x. 715 (9th Cir. Cal. 2013). But there is no evidence from the Nguyendecision that the Ninth Circuit considered Onyesoh. Just as the Beuns panel did not cite Vysniauskas, the Nguyen did not cite Onyesoh.<o:p></o:p>

The Onyesohdecision invites a fact-specific challenge to the calculation of unusable access devices when calculating loss at sentencing. Counsel should consider whether the Government has evidence of usability (or actual use) when presenting sentencing arguments and subsequently on appeal.<o:p></o:p>
Robert Dietrickhttps://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-27139483683854211012015-06-05T12:01:00.001-04:002015-06-05T12:01:41.727-04:00The plea agreement that wasn'tLet's say you committed a crime. Maybe it involved a fraud related to "antioxidant-rich whole food puree," or maybe it involved apocryphal gold bars supposedly buried by the Japanese during World War II, or maybe it involved both -- we're just spit-balling here. The government has you dead-to-rights, more or less, so you're going to plead guilty. They make you this offer: if you plead guilty (thereby relieving the government of its need to do more work on your bizarre case), they will agree to recommend to the court that you should receive a three-year sentence. If you hold up your end of the bargain and plead guilty, you would have reason to believe that the government would, in fact, make a good-faith effort to recommend a three-year sentence, right?

No. You would not. At least that's the Sixth Circuit's conclusion in the Reed opinion, published today. Rather than uphold the deal it had entered into, the government in this case told the district court how much of a liar Mr. Reed was and how many people he had injured. At the end of the sentencing hearing, just before the court was about to pronounce its sentence, the court stated that "the government has agreed pursuant to the plea agreement to recommend a three-year term of custody." Mr. Reed objected to the obvious: the government never actually had recommended a three-year term of custody. On cue, the government stated that it "recommended a three-year sentence," and Mr. Reed objected that this was too late. The district court rejected Mr. Reed's argument, stating that the prosecutor (who had just demonstrably failed to uphold his end of the bargain) was "unimpeachable" and noting that the plea agreement itself constituted a recommendation. You heard that right: an agreement to do something actually means you did that thing. The court sentenced Mr. Reed to seven years' custody. Seven years, which is more than three.

In a published opinion, the Sixth Circuit denied relief. Thankfully, it rejected the district court's reasoning that an agreement to pay $10,000 for a car is the same thing as actually paying $10,000 for a car, noting that "[t]his might be a different story if the government had failed to make any recommendation outside the plea agreement itself." The opinion concludes that "[t]he prosecutor was obligated to fulfill his promise -- which he eventually did." The opinion further notes that "[t]he government never advocated for a sentence over three years," so Mr. Reed can take some consolation in that for the next seven years.

I will say what the Sixth Circuit did not say here: regardless of whether Mr. Reed's sentence should be upheld, the prosecutor should not have done this. The prosecutor's promise was as false as the Japanese gold bars from World War II, and prosecutors should be held to a higher standard than fraudsters.
anbrandonhttp://email@example.com:blogger.com,1999:blog-9419566.post-73787469928782911342015-06-02T23:16:00.002-04:002015-06-03T06:57:33.397-04:00Internet Threats—A Time Machine Reflection
To be convicted of threatening people, a defendant must intend to be threatening. Harkening to doubts expressed by Judge Sutton in his United States v. Jefferies dubitante opinion (covered by this blog in August 2012), the Supreme Court agreed that "[h]aving liability turn on whether a 'reasonable person' regards the communication as a threat—regardless of what the defendant thinks—'reduces culpability on the all-important element of the crime to negligence.'" Elonis v. United States, No. 13-983, Slip Op. at 8 (June 1, 2015). Rejecting a negligence standard (and reversing the conviction), the Court left open the question of whether some degree of recklessness could meet the requisite scienter for conviction and did not address potential First Amendment arguments. Id. at 16-17.

 Both cases involved the liberal use of creative lyrics on social media accounts. The lyrics are included in the respective opinions (Judge Sutton describes Jefferies' efforts as "part country, part rap, sometimes on key, and surely therapeutic") and are worth review—particularly to lend insight on what can happen in a time of increasing use of social media and mobile access. Notably, "friends" or "followers" of the both defendants took the posts to law enforcement. Since the context of such posts will likely be instrumental in determining the mental state of future defendants, attorneys will need to understand content and access restrictions (if any) when addressing future cases.

<o:p></o:p>
Robert Dietrickhttps://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-30809087215820841772015-06-02T13:25:00.000-04:002015-06-02T13:25:51.365-04:00And thus began the limiting of Rodriguez v. United StatesIt was only a little more than a month ago that the Supreme Court issued its opinion in Rodriguez v. United States, 135 S. Ct. 1609 (2015), holding that it is unlawful for officers to prolong a traffic stop beyond the time reasonably required to complete the purpose of the stop. But anyone expecting Rodriguez to dramatically reshape the caselaw landscape for suppression litigation was bound to be disappointed. Today's Zuniga opinion --- apparently the first in the Sixth Circuit to cite Rodriguez --- suggests that the Sixth Circuit is unlikely to use Rodriguez to justify suppression in many more traffic stops than it had previously.

Mr. Zuniga was driving a truck that passed a police car and then allegedly spent too much time between lanes while merging back. This was enough to constitute an "improper or unsafe lane change" and an "improper or unsafe lane usage," which are, evidently, crimes. Perhaps unsurprisingly, the traffic stop lasted longer than is normally required to issue a citation for an improper lane change. Indeed, it took thirty minutes, and it involved a dog, a drill, and a fiber-optic scope to view inside the vehicle's fuel tank. (Did we mention that Mr. Zuniga was Hispanic and driving a vehicle with out-of-state plates?) If you think this sounds a lot like the facts of Rodriguez, you're not that far off. But the Zuniga opinion's preferred method of sidestepping Rodriguez is to find that the officer was perfectly reasonable in prolonging stop because Mr. Zuniga (1) admitted to not being an undocumented immigrant, (2) took too long in pulling over, (3) acted "nervously" in speaking with officers, (4) gave inconsistent responses regarding his travel plans, and, most damningly, (5) the FBI had received some information that a vehicle matching the description of Mr. Zuniga's truck was involved in drug activity. Thus, the officer "had reasonable suspicion to extend the stop for further investigation."

This result is not entirely surprising under the facts of this case, but it suggests that the circuit courts will take a limited view Rodriguez's holding, and it certainly hints at where Rodriguez litigation will focus in the district courts.

anbrandonhttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-29116052673989009062015-05-21T09:45:00.002-04:002015-05-21T09:49:50.184-04:00Limiting the "Private Search Doctrine" for Computers
Yesterday, the Sixth Circuit reigned in the "private search doctrine" as applied to computer searches. United States v. Lichtenberger, No. 14-3540. According to Orin Kerr at The Volokh Conspiracy, the opinion creates a circuit split and "may be the next computer search issue to make it to the Supreme Court."<o:p></o:p>

Under the private search doctrine, if a private party conducts a search, without the participation or encouragement of law enforcement, then the private party may show police what was found during the private search. See United States v. Jacobsen, 466 U.S. 109 (1984). Police may not, however, exceed the scope of the private party's initial search without first obtaining a warrant. In fact, an officer must have a "virtual certainty" that the officer's inspection will not reveal more than the private party's search.<o:p></o:p>

In this case, the defendant's girlfriend searched his personal computer and found child pornography. She then contacted police and showed an officer some of the images on the computer. Critically, the girlfriend testified at a suppression hearing that she was not sure whether she showed the officer the same images she saw during her initial search.<o:p></o:p>

As Kerr explains, before Lichtenberger, the Fifth Circuit held that, when a private party views even a single file on a computer disk, the police may inspect all content on the disk without a warrant. The Seventh Circuit followed the same course. <o:p></o:p>

Relying on Riley v. California, however, the Sixth Circuit noted that courts must balance the government's interest in a search against the defendant's privacy interest, and that "the nature of the electronic device greatly increases the potential privacy interests at stake, adding weight to one side of the scale while the other remains the same." This change, the court decided, "manifests in Jacobsen's 'virtual certainty' requirement." The court then held that the officer lacked the necessary certainty here since neither he nor the girlfriend could confirm if he viewed the same files from the initial search. The court thus upheld the suppression of evidence from the search.<o:p></o:p>

The opinion maintains that the Sixth Circuit's approach is consistent with that of the Fifth and Seventh Circuits. Kerr argues that this isn't the case because, although the courts applied the same test, they used "different units" to measure the scope of the search: the whole device, versus a file- or data-based approach. There is a current petition for certiorari from an Eleventh Circuit decision raising this issue.<o:p></o:p>
Benton Martin, E.D. Mich.http://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-64806502253012456392015-05-06T11:48:00.002-04:002015-05-06T11:48:57.333-04:00The Right to Parent and Restrictions on Associating with MinorsIn United States v. Widmer, No. 13-6283, the Sixth Circuit considered special conditions of supervised release that prevent a defendant from associating with minors without first receiving written permission from his or her probation officer. Mr. Widmer was convicted of possessing child pornography and given a special condition that required him to seek his probation officer's written permission if he wanted to associate with anyone under eighteen. Because Mr. Widmer is the parent of a minor daughter, he challenged the restrict - in part - by arguing it was a constitutional deprivation of his fundamental right to parent and associate with his family. He also argued that the condition did not advance a rehabilitation or safety interest and was either not merited by the record or not supported by a sufficient explanation from the judge.

The Widmer Court noted the right to family life is protected by the Fourteenth Amendment but is not absolute. Rather, special conditions of supervised release that implicate parental rights require explicit consideration by the sentencing court, as they are more intrusive to the individual. The sentencing judge below explicitly addressed the association restriction and its application to Widmer's minor daughter. In reviewing the district court's reasoning, the Widmer court held, "Although Widmer asserts that the association restriction is not narrowly tailored because it affects his association with his own child, it is clear that the restriction is tailored for the precise purpose of protecting Widmer's daughter."

Although Widmer asserted his crime of possessing child pornography was passive, the Sixth Circuit stated that Widmer's disregard for the welfare of the children depicted suggested otherwise. In sum, the Widmer court found that the district court was in its discretion to impose the special condition. The decision also provided a standard procedural reasonableness analysis of the district court's explanation at sentencing.Claire Curtis, Research + Writing Attorney, FPDNDOHhttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-87161638503536573202015-04-29T16:13:00.000-04:002015-04-30T08:36:57.349-04:00Cell Phone Search Warrants

The Sixth Circuit agreed this week to publish United States v. Bass, No. 14-1387, originally issued as an unpublished decision. In the decision, the court affirms the denial of a motion to suppress a cell phone search. The government urged publication on the basis that "case law applying the contours of Fourth Amendment search and seizure law to cell phones in this circuit is scant."

The government charged Bass with masterminding an identity-theft ring using credit-card account takeovers. Before Bass's arrest, law enforcement uncovered "that phone numbers linked to Bass had been used in several account takeovers." Police then seized Bass's phone when they arrested him at his mother's residence. Before gaining entry to the home, police observed him typing on the phone, and when Bass eventually opened the door, he "was arrested with his burgundy Kyocera Torino cell phone still in hand."

The officers obtained a warrant before searching the phone. The affidavit stated that police suspected Bass of crimes in which "cell phones were frequently used by conspirators to text or call each other during the times that the fraudulent activity was taking place," and that Bass had used the phone at his arrest, "possibly attempting to alert other conspirators of [his] arrest." The search warrant "authorized the search for any records of communication, indicia or use, ownership, or possession, including electronic calendars, address books, e-mails, and chat logs." During the search, an officer turned on the phone and obtained its number, which matched with one used during account takeovers.

Bass argued that the search affidavit (1) lacked probable cause, (2) failed to show that his particular phone contained evidence, and (3) was overbroad.

The Sixth Circuit concluded that the affidavit showed a fair probability that the cell phone contained co-conspirator contacts and had sufficient detail to tie this phone to Bass's offense, particularly since it identified the phone as obtained at his arrest. As for the overbreadth argument, the court decided that, even though the officers could not have known where within the phone, or in what format, the evidence would be, the scope of the warrant was reasonable given that criminals using modern electronic devices often seek to conceal evidence of their criminal activity. For support, the court primarily relied on United States v. Richard, 659 F.3d 527(6th Cir. 2011), which addressed computer searches.

The court also denied Bass a new trial based on the recantation of a witness's testimony and rejected his challenge to his statutory maximum prison sentence of 264 months.
Benton Martin, E.D. Mich.http://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-70582310549402785272015-04-21T11:14:00.001-04:002015-04-21T11:14:58.512-04:00Duplicity and Unanimity InstructionsUnited States v. Eaton, decided on April 20, 2015, is an appeal from the conviction of former Barren County (KY) Sheriff Christopher Eaton. The case stems from the arrest and beating of Billy Stinnett in 2010. Eaton and three sheriff's deputies were charged with excessive force; Eaton was also charged with witness tampering and obstruction of justice. Eaton was convicted only of two counts of witness tampering.

The most interesting issue raised on appeal regards whether the trial court erred in failing to give a unanimity instructions as to one of the witness tampering counts. Eaton argues that the proof at trial left the jury with the ability to find that Eaton had committed witness tampering in one of two ways (lying about excessive force or lying about whether Stinnett had a weapon). Eaton's trial counsel didn't request such an instruction, so on appeal, Eaton was stuck with plain error review.

The court's decision suggests that even had the error been preserved, Eaton would have lost the review. The panel reiterated the distinction between jurors being unanimous as to elements and jurors being unanimous as to facts. Citing Richardson v. United States, the court holds that Eaton's case implicates only the "brute facts" underlying the statutory elements; thus, a unanimity instruction was not required.Donald Caster, Ohio Innocence Projecthttp://email@example.com:blogger.com,1999:blog-9419566.post-78579034566269637612015-04-18T18:37:00.000-04:002015-04-18T18:37:25.632-04:00Determining Competency

A recent pair of Sixth Circuit cases elucidate the procedure for determining competency—particularly when a defendant seeks to represent himself. In such circumstance, there are two questions: (1) whether the defendant is competent to stand trial and (2) whether the defendant is competent to represent himself. Under Indiana v. Edwards, 554 U.S. 164 (2008), a district court may appoint trial counsel to a defendant incompetent to conduct a trial even if the defendant is competent to stand trial. A defendant may not represent himself in regard to the first question, but apparently may represent himself in regard to the second.

In United States v.Martin, the Sixth Circuit reversed a conviction because "there [was] nothing in the record to suggest that counsel represented [the defendant] at the [competence] hearing or participated in any way in the determination of [the defendant's] competency." The Court held that when "a criminal defendant's competency to stand trial has been challenged, the validity of the defendant's waiver of counsel is suspended until the issue of his or her competency is resolved." The participation of standby counsel may be "sufficient only when standby counsel conducts an adequate investigation of the defendant's competency and subjects the evidence . . . to meaningful adversarial testing." (As an aside, the Court applied de novoreview to the denial of counsel claim).

In United States v.Stafford, the Sixth Circuit upheld a determination that the defendant was both competent to stand trial and to represent himself. During the hearing to determine competency to stand trial, counsel represented Stafford. But at a subsequent hearing to further inquire into Stafford's competency to represent himself, the district court noted that standby counsel was "not required to speak" (though it should be noted that standby counsel did speak and opined that Stafford was competent to represent himself). The appellate court emphasized the extensive record built by the district court in reaching its determination and the district court's superior position to make determinations regarding competency.

These cases demonstrate the avenues and necessity for zealous advocacy even when a defendant seeks to proceed pro se.

The cases cited above are United States v. Martin, 11-6544 (6th Cir. April 15, 2015), and United States v. Stafford, 13-4188 (6th Cir. April 10, 2015).

Robert Dietrickhttps://email@example.com:blogger.com,1999:blog-9419566.post-3369034594863872292015-04-07T12:00:00.000-04:002015-04-07T12:00:42.901-04:00Too white to strike? Reverse-Batson rears its headToday's unpublished Strong opinion shows the Sixth Circuit wrestling with the always-problematic reverse-Batson claim, made especially problematic here in light of some, shall we say, unusual comments made by the district judge during voir dire.

In a case with two African-American defendants, defense counsel exercised peremptory strikes against three white members of the jury pool. After the government raised a reverse-Batson challenge, the court determined that the defense had presented racially-neutral reasons for two of the strikes, but found that the last one was "poorly supported" and "pretextual." Defense counsel offered several explanations for striking the juror, including that he appeared to have worked for another potential juror and that he had stared at one of the defendants during voir dire. The court believed that both of those explanations were factually unsupported. But the court did not stop there. Instead, it unfortunately implied that the third juror was somehow just too white to strike:

"[T]he reason it appears to have been [pretextual] is that [the juror], who of all of our jurors, is actually remarkably white. He's just plain pale. He makes [defense counsel] and me look like we're rosy complected. That probably sounds bad, but he's just very pale, so, unfortunately, I don't know that that had anything to do with it."

Indeed, it did sound bad. Although the Sixth Circuit ultimately upheld the reverse-Batson determination, the panel "strongly disapprove[d] of the statements regarding relative skin tones that the district court made, and believe[d] that it could have addressed the government's Batson claim in any number of different (and more appropriate) ways."anbrandonhttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-25227931538794052772015-03-23T14:28:00.001-04:002015-03-23T14:28:14.314-04:00If the government doesn't like a ruling by the district court, they need to appealAfter his supervised release was revoked, Mr. Burch filed a notice of appeal. He was a few weeks past the 14-day deadline for filing, so he also filed request for an extension of time.* The district court granted the request. The government did not appeal this ruling, or file a cross appeal. Instead, it challenged the order via a motion to dismiss the appeal as untimely, arguing the district court abused its discretion in granting the extension.

There is actually a circuit split on this issue. The Third Circuit rejects the motion to dismiss approach and holds a party must "appeal from the order granting the extension of time to appeal." The Tenth Circuit had a rather convoluted theory that a cross-appeal is only for instances where an appellee wants "more than it obtained by the lower-court judgment" and since the appellee was not seeking alteration of the judgment, they need not file a cross-appeal.

In United States v. Burch, 14-6232, the Sixth Circuit agreed with the Third Circuit and provided some clearer guidance: "litigants dissatisfied with a district court's judgment or order normally must file an appeal challenging the decision." "[A] party dissatisfied with a district court's order is well-served to file [an appeal], whether labeled an appeal or cross-appeal, within the relevant timelines." There is nothing about a time-extension order that suggests any different rule should apply to them.

The Sixth went on to describe instances where a motion to dismiss would be appropriate: where the court lacked jurisdiction; to enforce a valid appeal waiver in a plea agreement; or when a criminal defendant filed an untimely appeal without district court authorization.**

The government's motion to dismiss the appeal was denied. It appears Mr. Burch has until his release on April 28, 2015, to appeal his revocation and/or sentence, as he received jail time with no supervision to follow.

* Practice tip #1: if you must file your notice of appeal late, for whatever reason, file the notice AND a request for an extension of time. If you only file the notice, the Sixth Circuit will docket the case and then tell you in a rather public way that you need to move the district court to allow you to file out of time. Since you will have to do it anyway, go ahead and do it in the first place.

** Practice tip #2: When a defendant files a pro se notice of appeal, the Sixth Circuit will docket the case and notify trial counsel. DO NOT IGNORE THEIR MESSAGE. Even court-appointed counsel are considered appeal counsel unless and until they are relieved. Respond to the message. Put your appearance in. If the defendant has filed out of time, the Sixth will issue a Rule to Show Cause, basically asking trial counsel to figure out what's going on, get the district court's permission to file late, and get in touch with the client. When in doubt, do not do nothing. Laura Davis, AFPD, FDSEThttp://email@example.com


text: Stories in the Stones on Mt. Talbert July 25, 2015 - 10:00am to 01:00pmJoin naturalist Dan Daly and explore the rugged beauty of this unique lava dome as you wander through a white oak woodland in summer. Mount Talbert is part of a series of cinder cones and shield volcanoes that began bubbling up almost 3 million years ago... Read more about Stories in the Stones on Mt. Talbert


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Through rain, sun and horrendous wind, high school cross-country skiers still put on the Kenai Peninsula Borough ski championships Friday and Saturday at the Tsalteshi Trails behind Skyview High School.
Kenai Central's Travis Cooper and Soldotna's Colton Diehl traded victories through both days, with Cooper coming out on top of the combined weekend results to win the boys championship.
Soldotna's Sadie Fox had an easier time in the girls varsity division, cruising to victory both days to defend her borough girls championship.
It seems like every gym Chuck Boerger visits these days, it's the last time he'll be there as a basketball coach.
In his final year of a long coaching career, Boerger visited the Kenai Central High School gym one last time, and his Grace Christian boys hoops team beat the Kardinals 50-38 Friday night in a nonconference matchup. The Grace boys also notched a victory over Soldotna on Saturday, but details were not available as the Clarion went to press.
In his final year of a long coaching career, Boerger visited the Kenai Central High School gym one last time, and his Grace Christian boys hoops team beat the Kardinals 50-38 Friday night in a non-conference matchup.
"It's not going to be done until we're finally eliminated, but I just enjoy every game as best as I can," Boerger said. "I take joy in my players, and I've enjoyed every team I've ever coached, and this is a special group of players."
After winning a pair of Northern Lights Conference wrestling titles on Saturday, Ellery and Paul Steffensen will now attempt to become one of the only pairs of brothers to win a state championship on the same day.
The tournament begins today at Bartlett High School in Anchorage with the qualifying rounds, consisting of preliminaries and championship quarterfinals, from 10 a.m. to 4 p.m. The meet continues with semifinal rounds at 6 p.m.
The championship rounds for each weight class begin at 5 p.m. Saturday.
The thrill of competition never gets old for many athletes, and for Soldotna's Andy Liebner, the push to prove himself against some of the world's best cross-country skiers has been a lifelong objective.
But for now, he will be facing the challenges of being a coach, rather than an athlete.
The 2001 Soldotna High School graduate is currently in Sochi, Russia, where he is preparing to execute his duties as head coach of the Peruvian cross-country ski team for the Winter Olympics.
After losing a three-goal lead late in the going against the Austin (Minn.) Bruins, the Kenai River Brown Bears escaped with a 4-3 victory Thursday night at the Soldotna Regional Sports Complex.
Nathan Colwell chipped in the game-winner with 1 minute, 59 seconds, left in regulation after getting an assist from behind the net.
Heading into Saturday, the Kenai Central and Soldotna high school hockey teams were locked in a tie for third in the North Star Conference standings with equal 5-4 records, putting greater emphasis on what is already a must-see matchup between the two schools.
In what turned out to be a classic, Soldotna prevailed in overtime 4-3 and beat Kenai for the third playoff spot at the Soldotna Regional Sports Complex.
The Cook Inlet Academy hoops teams continued to roll through the Peninsula Conference with a sweep of Lumen Christi, Friday at CIA.
The CIA boys took an early lead against the Archangels and never looked back, cruising to a 53-20 victory that helped establish their position in the conference standings with a 7-0 record (8-1 overall).
"We want the number one seed, we want a bye," said CIA coach Justin Franchino. "If that means being undefeated in conference, so be it."
When the Class 4A high school wrestling season began back in November, hardly anyone saw the freshman phenom that was about to be released out of Kenai Central high school.
For Kenai coach Stan Steffensen, he was just watching another one of his children take the mat on the Alaska wrestling scene. He knew what was coming.
"Some people didn't realize it, some have wrestlers in middle school that knew," Steffensen said. "The ones that do that get involved in it ... they've kind of known it. They knew. They're the guys in the same group."
The Wenatchee (Wash.) Wild prevailed in a wild game over the Kenai River Brown Bears on Thursday night at the Soldotna Regional Sports Complex, coming away with a 4-3 win after getting a tying goal late in regulation and scoring twice in the shootout.
Peninsula Clarion ©2015. All Rights Reserved.


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