Justia Criminal Law Opinion Summaries

Having served as an expert witness and attorney in Ohio and federal courts, Boland possessed and created child pornography by combining benign images of identifiable children and pornographic images of adults and used the images to suggest that his clients do not satisfy the mens rea requirements of laws under which they are prosecuted. The images constitute child pornography under 18 U.S.C. 2256(8)(C), but he claims that his use is legal an Ohio exemption for "bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by ... person having a proper interest." Boland was detained by the FBI and his computers were seized. He signed an agreement admitting to creating and possessing child pornography in violation of federal law; the government agreed not to prosecute. The district court denied Boland an injunction preventing the government from prosecuting. The Sixth Circuit affirmed, rejecting arguments that federal laws do not preempt Ohio child pornography law exceptions; that the First Amendment prevents prosecution of creation and possession of child pornography for use in court; and that unless defense attorneys and experts may take advantage of the Ohio exceptions, defendants in child pornography cases will be denied a fair trial.

As one of the largest developers in Cincinnati, Erpenbeck defrauded buyers and banks out of nearly $34 million. Erpenbeck pled guilty to bank-fraud in 2003, received a 300-month sentence, and was ordered to forfeit proceeds: $33,935,878.02, 18 U.S.C. 982(a). The FBI later learned that Erpenbeck had given a friend more than $250,000 in cash. The friend put the cash in a cooler and buried it on a golf course. Agents unearthed the cooler. The government sought forfeiture of the cash and posted online notice in 2009. Three months later, the trustee of Erpenbeck’s bankruptcy estate contacted an Assistant U.S. Attorney, told her the estate had an interest in the cash and asked about the government's plans. The attorney did not mention the forfeiture proceedings. Because no one asserted an interest, the district court entered an order vesting title to the cash in the government, 21 U.S.C. 853(n)(7). The trustee sought to stay the order in November 2010. The district court denied the motion because the trustee did not file a timely petition. The Sixth Circuit vacated. Even though the trustee’s interest in the cash was "far from a mystery," the government did not take even the "modest step" of sending a certified letter.

Petitioner, a citizen of Mexico, entered the U.S. illegally in 1991. In 1997, he pleaded guilty to felony flight after attempting to elude a police officer who had signaled him to stop for speeding. As a first-time offender, he received a sentence of 40 days. In 2006, INS issued a Notice to Appear, charging him with removability under 8 U.S.C. 1182(a)(6)(A)(i), which permits removal of an alien present without being admitted or paroled, and 8 U.S.C. 1182(a)(2)(A)(i)(I), which permits removal of an alien convicted of acts which constitute the essential elements of a crime involving moral turpitude. Petition conceded the first ground for removability but challenged the second ground. The IJ concluded that because of the wanton or willful mental state required under the state statute and the resulting inference that petitioner had disregarded a substantial and unjustifiable risk to the safety of others, his Washington law categorically rose to the level of a CIMT, and ordered removal. The BIA dismissed an appeal. The Sixth Circuit denied review.

During a traffic stop for speeding, a dog deployed to the scene alerted to drugs. A search revealed cash and false drivers' licenses. Defendants were part of a conspiracy that created the licenses, using genuine identity information of others, in order to cash counterfeit checks at Wal-Mart stores. They pled guilty to conspiracy to utter counterfeited securities, to knowingly possess five or more false identification documents with intent to use them unlawfully, and to commit aggravated identity theft, 18 U.S.C. 371 and to aggravated identity theft, 18 U.S.C. 1028A(a)(1). Two also pled guilty to knowingly possessing five or more false identification documents with intent to use them unlawfully, 18 U.S.C. 1028(a)(3). They were sentenced to terms of 54 months, 42 months, and 61 months in prison and each was ordered to pay $68,742 in restitution to Wal-Mart. The Sixth Circuit affirmed denial of a motion to suppress, but remanded for resentencing of one defendant. The traffic stop was not unreasonably extended by deploying the drug-detection dog; the court rejected arguments that the dog was unreliable, and that the alert did not justify opening the envelope containing the first set of counterfeit documents.

A BOLO alert issued for a suspect involved in a shooting, thought to be driving a black Tahoe with stripes and chrome wheels. An officer, familiar with the suspect, spotted a similar vehicle and performed a traffic stop for failure to signal. Defendant and his passenger were each holding open, partially consumed bottles of beer. Neither had a valid driver’s license. The officer then realized that there was no connection with the incident that precipitated the BOLO, but conducted a background check and found a warrant for defendant’s arrest. The officer determined that, in accordance policy, the Yukon would have to be towed because it was illegally parked in the driveway of a residence with no discernible connection to either occupant and neither could drive it to another location. Before releasing the vehicle to the towing company, he performed an on-site inventory search; under the driver’s seat. He noticed that the carpet had been ripped up and appeared to be loose. Lifting it, the officer found a handgun. Defendant conditionally pled guilty to being a felon in possession of a firearm and ammunition, 18 U.S.C. 922(g)(1). The Sixth Circuit affirmed denial of a motion to suppress the firearm. .

In the 1990s debtors owned a business that failed and incurred liabilities from unpaid taxes. They had a monthly payment obligation to the IRS. Husband obtained employment; 2003 to 2009, his yearly gross income was between $53,000 and $59,000. In addition, he receives $1,300 per month from a settlement annuity. Wife was employed as a bookkeeper until 1999. In 2000, she pled guilty to felony embezzlement of funds from her former employer and was sentenced to probation and required to pay restitution of $800 per month. Before her indictment wife obtained employment as a bookkeeper for plaintiff, began embezzling, and deposited stolen funds to Debtors’ joint bank accounts. By 2006, she had embezzled $283,391.88 from plaintiff and forged credit card purchases of $2,821.43. In 2007, she embezzled $328,516.10. In 2008, she embezzled $11,230.21. She stole goods valued at $127,156 from her employer. Debtors spent accordingly. The Bankruptcy Court entered an order excepting debt owed to plaintiff from discharge under 11 U.S.C. 523(a)(6), finding that husband conspired with wife to convert embezzled funds and other property. The Sixth Circuit affirmed, holding that Debtors’ conduct constituted willful and malicious injury to plaintiff.

Following a traffic stop for failing to dim her high beams in the face of oncoming traffic, Green was arrested for driving under the influence of drugs or alcohol, based on her responses to a series of field sobriety tests administered by a state trooper. A more definitive test, her urine sample, later came back clean; all charges were dropped. Green sued under 42 U.S.C. 1983, alleging that the trooper violated her Fourth Amendment rights by conducting field sobriety tests without having a reasonable suspicion that she was impaired and arresting her without probable cause. The district court dismissed. The Sixth Circuit reversed. A reasonable jury could find that Green's conduct did not create a reasonable suspicion that she was driving under the influence, that Green acted rationally throughout the stop, that her relatively minor traffic violations were not indicative of impairment, and that the officer fabricated the alleged constriction of her pupils to create an after-the-fact justification for the detention.

Mitchell was a partner in the Cleveland law firm from the early 1980s until 2006. There was no formal partnership agreement; each partner practiced in a different area of law, and each represented his clients with essentially no oversight, but shared evenly in the firm's profits. Mitchell was indicted for his involvement in a long-running scheme to bribe the auditor of Cuyahoga County into awarding overvalued contracts for appraisal work to a company formed by his law partners. The indictment charged conspiracy to commit bribery concerning programs receiving federal funds, 18 U.S.C. 371; bribery concerning programs receiving federal funds, 18 U.S.C. 666(a)(2); and conspiracy to violate the Hobbs Act, 18 U.S.C. 1951. The district court granted Mitchell acquittal on the Hobbs Act charge, but a jury convicted him of the remaining two counts. He was sentenced to 97 months. The Sixth Circuit affirmed, rejecting a challenge to the jury instruction that deliberate ignorance, in some instances, can constitute knowledge, and a challenge to the sentence.

Collins was a passenger in a car stopped for speeding. The officer determined that there were no outstanding warrants on either occupant, that the car had been borrowed with permission, and that the driver’s license was valid. The driver passed a field sobriety test, but an officer watching the test saw Collins make a furtive gesture toward the floorboard as if trying to retrieve or conceal something. After the driver consented, officers searched the car and found a gun. Both men denied knowledge; an officer responded that he would have to charge both. Collins said, "I'll take the charge." The detention, from initiation of the stop to transportation to the police station, lasted about 49 minutes. Collins signed a Miranda waiver and admitted that the gun was his. He entered a conditional plea of guilty to being a felon in possession of a firearm, 18 U.S.C. 922(g). The court accepted the prosecution’s decision not to move for an additional one-level decrease in offense level for defendants who demonstrate acceptance of responsibility (USSG 3E1.1(b)), applied a two-level decrease under 3E1.1(a), applied the Armed Career Criminal Act, 18 U.S.C. 924(e)(1),and sentenced him to 184 months. The Sixth Circuit affirmed.

Nali and O'Brien started a 10-year sexual relationship in 1992. O’Brien was married. Nali videotaped their sexual encounters without consent. O'Brien attempted to end the relationship; Nali threatened to give the videotapes to her family and the media. After O’Brien divorced, she ended her relationship with Nali, who refused to leave her alone. After she reported harassment to police, her ex-husband intercepted a package addressed to their daughter, containing a videotape of sexual encounters between Nali and O'Brien. Her brothers received similar packages. Convicted of extortion, Nali was sentenced to 50 months to 20 years. Both his direct appeal to the Michigan Court of Appeal and a motion to remand for development of the record to support an ineffective assistance of counsel claim failed. The Supreme Court of Michigan denied review. The federal district court found the evidence insufficient to support conviction and granted an unconditional writ of habeas corpus, but concluded that Nali was not denied effective assistance of counsel; the court ordered immediate release. The Sixth Circuit reversed. The state court properly determined that a rational jury could find Nali guilty beyond a reasonable doubt and that he was not prejudiced by any failings of counsel.