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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

Browning v. Baker et al., 9th Circuit, filed 9/20/17: HABEAS WIN on Brady claim, and Trial Counsel Ineffectiveness re: Investigation.

September 22nd, 2017
Elizabeth Franklin-Best

It's always stunning to see a win on habeas, so they're important to analyze.  This opinion has a very strong dissent by Judge Callahan so there's probably a good chance SCOTUS will look at this one carefully.  Frankly, they would even without a dissent. So, just know that there's a dissent if you're interested in using this case. The victim was a jewelry store owner who was stabbed during daylight, and his wares were stolen by his killer. 

United States v. Antonio Walter and Kenneth Bell, 7th Circuit, filed 8/29/17: REVERSAL based on Brady Violation

September 19th, 2017
Elizabeth Franklin-Best

You have to love an opinion that starts off like this:

            The Supreme Court's decision in Brady v. Maryland, 373 U.S. 83 (1963), might seem a bit strange to someone who thought that the adversary system in criminal cases allows each side to adopt a "no holds barred"

State v. Trenton Malik Barnes, filed 8/16/17, South Carolina Court of Appeals: Serious Issues Can Arise When Co-defendants Are Tried Together.

September 18th, 2017
Elizabeth Franklin-Best

This was a terrible crime, and it's hard to believe that fact didn't enter into the Court's rulings to find errors "harmless" in this case. The Court states that the evidence in this case was overwhelming as to Barnes's guilt and points to three pieces of evidence:  1) Barnes's letter to his mother confessing to the crime, 2) his mother's identification of him as the person wearing the gray sweatshirt in the surveillance video, and 3) the timeli

United States v. Ayika, 5th Cir. filed 9/14/16: Asset Forfeiture When Monies, Legitimate and Illegitimate, are Commingled, When Can the Government Seize Substitute Assets?

September 11th, 2017
Elizabeth Franklin-Best

Ayika was indicted for, and then convicted of heath care fraud. There were two cases against him. The first case, judging from the opinion, looks like a pill-mill case. He was tried before a jury and then convicted. On that same day, he pleaded guilty to the second set of charges. He appealed both sets of charges, and the guilty plea in the fraud case was vacated and remanded for jury trial. Then, he had this second trial before a jury and was co

US v. Dupree, Lewis et al, 2nd Cir., filed August Term: Failure of Indictment to Allege Drug Quantity, Admissibility of Other Bad Act Evidence.

September 7th, 2017
Elizabeth Franklin-Best

Not a very helpful case for defendants charged with serious drug trafficking conspiracies, but important to know nonetheless. This case involved a long-running drug conspiracy that resulted in the death of a co-conspirator back in 1994.  The main issues on appeal are the failure to allege drug quantity in the indictment, and admissibility of another drug conspiracy that occurred in Maryland some years before these events. Defendants were char

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