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Burgess v. United States, 11th Cir., filed 11/6/17, Court Vacates §2255 Denial When Judge Sua Sponte Raises Procedural Bar

November 16th, 2017
Elizabeth Franklin-Best

The 11th Circuit holds that Court cannot invoke a procedural bar, on its own accord, to deny a petitioner's claim in a federal post-conviction action. The petitioner here pleaded guilty to wire fraud and money laundering.  As part of this plea agreement, he did what every other defendant is unfairly forced to do-- he waived his right to appeal, which also included his right to collaterally challenge his conviction (except as

United States v. Walton, 7th Cir., filed 11/3/17: Honest Services Fraud, and Enhancements for Sensitive Position and Vulnerable Victims

November 7th, 2017
Elizabeth Franklin-Best

This appeal arises from the conviction of two men who were part of a larger scheme to sell properties owned by the Indianapolis Land Bank to selected non-profits at incredibly low rates, and then resold to private purchasers for profit. Kickbacks ensued. Walton was the manager of the Land Bank, a public agency that was authorized to acquire distressed properties.  Walton’s position gave him the authority to buy and sell the property, with litt

United States v. Palin, 4th Cir., filed 10/30/17: A Case Addressing Materiality in Light of United Health Services, Inc.

October 31st, 2017
Elizabeth Franklin-Best

The Fourth Circuit rejects claim that Universal Health establishes a "new standard of materiality" but finds that even if it did, appellants here lose.   The appellants here, a married couple, Ms. Palin and Mr. Webb, were convicted after a 2-week bench trial of heath care fraud and conspiracy to engage in health care fraud, in violation of 18 USC §§1347 and 1349.  Their central claim on appeal is that the district c

Sawyer v. United States, 2017 WL 4700089 (7th Cir, unpublished, 10/20/17): Evidentiary Hearing Required Even If Petitioner’s Claims Are Self-Serving.

October 29th, 2017
Elizabeth Franklin-Best

This case serves as a very good reminder of a petitioner’s burden in a habeas petition, and the Court’s proper regard for a petitioner’s allegations. Petitioner’s claim in this case is that his lawyer provided ineffective assistance of counsel by urging him to reject a plea offer of 15 years (after trial, petitioner received 50 years).  In his 2255 motion, petitioner specifically alleged that the government offered him a 15-year plea off

SEC v. Kahlon, 5th Cir., filed 10/16/17: Court Upholds Lower Court’s Penalty of Permanent Injunction from Trading Penny Stocks.

October 23rd, 2017
Elizabeth Franklin-Best

The Court held the Appellants violated SEC regulations by improperly selling and trading penny stocks in Texas, a state with which Appellant had very limited contact. Kahlon was the sole officer, owner, and employee of TJ Management (TJM), a New York limited liability company formed in 2003. In 2005, the company bought 100 acres of vacant property in Texas. That year, Kahlon registered TJM as a foreign limited liability compan

United States v. Skelos, 2nd Cir.,filed 9/26/17: Reversal for Erroneous “Official Acts” Jury Instruction.

October 17th, 2017
Elizabeth Franklin-Best

Applying the United States Supreme Court’s recent decision in McDonnell, the Second Circuit vacates convictions of two co-defendants based on an erroneous “Official Acts” jury instruction. This case reverses the convictions of Dean Skelos, the former Majority Leader of the New York S

US v. Vergil George, 11th Cir., filed October 6, 2017: Defendant entitled to resentencing when district court failed to allow him to allocate before imposition of sentence.

October 16th, 2017
Elizabeth Franklin-Best

The Eleventh Circuit remands for re-sentencing when the judge did not provide George an opportunity to speak on his own behalf before it imposed its sentence. The appellant here, George, raised several issues for the Court’s consideration, but I’m focusing on the one issue that entitled him to a new sentencing hearing-- the judge’s failure to provide George with an opportunity to address the Court before he was

Gray v. Ballard, 4th Cir., filed 2/8/17: When Newly-Discovered DNA Evidence is “Timely” for Tolling under AEDPA. Not Good News for Habeas Petitioners

October 9th, 2017
Elizabeth Franklin-Best

The State's successful suppression of Brady material in connection with a scandal in the West Virginia State Police Crime Laboratory means that Petitioner cannot show "due diligence" in uncovering the factual predicates of his federal habeas claims. This case offers a really tough lesson for habeas petitioners attempting to bring forensic evidence claims into court

United States v. Cedric Hayes, 7th Circuit, filed October 3, 2017: Enhancement Due to “Altered or Obliterated” Serial Numbers on Firearms

October 6th, 2017
Elizabeth Franklin-Best

This opinion addresses the extent to which a serial number on a firearm must be altered so that the 2K2.1(b)(4)(B) 4-level enhancement under the Federal Sentencing Guidelines will apply.  As it turns out, not much. Hayes was indicted on two counts of being a felon in possession of a firearm.  He pleaded to one count.  The serial number on the firearm he illegally possessed had been covered with a paint-like substance that prevented the seri

US v. $31,000 in US Currency, et al. (6th Circuit, filed 9/20/17), In this Asset Forfeiture Case, the Court Finds Dismissal of Challenge to Forfeiture Improper when Claimants Have Article III and Statutory Standing to Challenge. Also, Wow! The Government Arrogance in Just Taking Shit That Doesn’t Belong to Them and Then Complaining About It.

September 29th, 2017
Elizabeth Franklin-Best

It is unbelievable to me how utterly arrogant and entitled the federal government is when it comes to taking property without any reasonable suspicion, much less probable cause, that a crime has been committed.  This conduct is outrageous.  Excellent lawyering on the part of James R. Willis who represented two complainants here. But, as the facts of this case show, if the feds take your property, GET A LAWYER IMMEDIATELY. The facts are strai

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Burgess v. United States, 11th...
November 16th, 2017

United States v. Walton, 7th C...
November 7th, 2017

United States v. Palin, 4th Ci...
October 31st, 2017

Sawyer v. United States, 2017 ...
October 29th, 2017