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Felony Aggravated Assault with a Vehicle in Illinois

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Did you know that chasing a person in your car can get you arrested for aggravated assault in Illinois? Two Chicago-area residents recently learned this the hard way when they were arrested and charged with felony aggravated assault. A Wilmette man was charged for allegedly trying to run over a man who chased after his […]

Sex Offenders No More? Iowa Reconsiders Tough Law on HIV Exposure

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3-30-2014 Iowa: In 2006, a few years after Leslie Flaggs learned she had contracted HIV, she made a new friend at her church in Sioux City, Iowa. As her relationship with the man turned from Bible study to intimacy, Flaggs said, she revealed to him that she had the disease. But the man went to police in May 2007 and said she hadn’t disclosed her HIV status until after they’d slept together.

March Madness! Elite 8, Day 2

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My picks: Connecticut +6½ over Michigan State, Kentucky -2 over Michigan. Open Thread. [[ This is a content summary only. Visit my website for full links, other content, and more! ]]

The Culture of Doing Nothing

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Much as I thought I was done with discussion stemming from the “dirty old man” post, I was sent a comment posted at Nita Farahanny’s flavor which made me very sad, and compels me to discuss it one more (and hopefully last) time. By a commenter who calls himself Nathan_M (and unfortunately, the WaPo lacks a […]

Case o' The Week: A Great Session(s) in the Ninth - Vargem, Guideline Error, and Relevant Conduct

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Hon. Judge William K. Sessions, III AFPD Candis Mitchell argued the guidelines still matter. (Former Sentencing Guideline Commission Chair) Judge William Sessions (sitting by designation), agrees. United States v. Vargem, 2014 U.S. App. LEXIS 5824 (9thCir. Mar. 28, 2014), decision available here.Players: Decision by visiting DJ (and former Sentencing Guideline Commission Chair) Sessions, joined by Judges Reinhardt and Thomas. Big win by ND Cal AFPD Candis Mitchell and R&W Attorney Steven Koeninger.  Facts: Represented by private counsel, Vargem was sentenced for possession of an unregistered machine gun. Id. at *1. The case started with a protective order against Vargem, issued after his wife reported an assault. Id. at *2. The protective order prohibited Vargem from having guns. Id.at *2. Cops then learned that Vargem had 12 guns registered in his name. An officer called Vargem, told him about the protective order, and told Vargem he had to surrender the guns. Id. at *3. Officers then went to Vargem’s house and saw him loading stuff into a van. Id. at *4. Vargem drove away, the van was stopped, a pistol was discovered. Id.A later search of Vargem’s house revealed an unregistered machinegun (and 27 other guns). Id. at *X. The district court imposed a six level adjustment under § 2K2.1(b)(1)(C) for multiple guns. The defense did not object to the guideline calcs. Id. at *5. Vargem appealed, with FPD counsel. Id. at *5.Issue(s): “[There is] a six-level increase under § 2K2.1(b)(1)(C), which applies to ‘offenses’ involving between 25 and 99 firearms.” Id. at *14. Under relevant conduct rules, “offenses” include charged or uncharged offenses that “were part of the same course of conduct or common scheme or plan as the offense of conviction.” Id. at *15 (quoting § 1B1.3(a)(2)). “Echoing the language of § 1B1.3(a)(2), the government asserts that all 28 weapons were part of a common scheme or plan and the same course of conduct.” Id. at *15.    Held: “[T]he government concedes that Vargem was not a prohibited person [from possessing a firearm] under federal law . . . [based] upon the current record, there is no evidence to support the conclusion that each of Vargem’s other 27 firearms was illegal. Accordingly, it was error for the district court to have included all 28 firearms under § 2K2.1(b)(1).” Id.at *19. “We . . . vacate Vargem’s sentence, and remand . . . .” Id. at *19.Of Note: On the surface, this seems like a guideline-bound decision on a unique fact pattern. Read carefully, however, Vargem is an important case for the hot topic of relevant conduct. The government argued that Vargem lied to an officer to conceal weapons from seizure due to the protective order – an argument which “may have surface appeal.” Id. at *16. (Former Commission Chair) Sessions, however, rejects that expansive reading of relevant conduct: “it obscures the crux of the relevant conduct analysis, which is the relationship to the offense of conviction.” Id. at *14. This careful reading of relevant conduct may resonate in cases where guideline tables drive big offense level figures (think fraud). A great relevant conduct case. How to Use: Wait – the (incorrect) guidelines were 70-87, but the district court gave Vargem thirtymonths. Does this guideline mistake rise to “plain error?” Yup (to the government’s chagrin). Because the district court engaged with Vargem’s mitigating factors, there is a reasonable probability that the court would have imposed a different sentence had it known the correct range. Id. at *9. Vargem teaches that Booker and variances do not immunize a sentence from reversal when there is guideline error: a welcome arrow for the defense quiver.                                                                 Hon. C.J. Patti SarisFor Further Reading: This was a big week for Sentencing Commission Chairs. Current Chair (Chief Judge Patti Saris) just gave a terrific speech on federal drug sentences. Her must-read comments are available here.   (“[W]e are overdue as a society and as a federal criminal justice community to reconsider our approach to federal drug sentencing. The Sentencing Commission hopes to continue playing a leading role in this important discussion that can begin to move the country toward rational and necessary changes.”)Picture of the Honorable William K. Sessions III, District Judge for the District of Vermont, from http://www.fcpablog.com/storage/judgesessions.jpg?__SQUARESPACE_CACHEVERSION=1264834925507 Picture of the Honorable Chief Judge Patti Saris, Chair, Sentencing Guideline Commission, from http://upload.wikimedia.org/wikipedia/en/f/fb/Patti_B._Saris_District_Judge.pngSteven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org.

As heroin concerns grow, so do proposals to increase sentences

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Everyone who follows sentencing reform developments knows that it is common for legislative proposals calling for longer prison terms to follow reports of a new or increased crime problem. The biggest crime problem being discussed these days seems to be...

Real Estate Investor Charged with Fraud

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Benny Chetcuti, Jr., Walnut Creek, California, has been indicted and charged with wire fraud, stemming from Chetcuti’s real estate investment business. According to the Indictment, as early as October 2002 and continuing through June 2010, Chetcuti allegedly defrauded private investors who loaned money to him and his business, Chetcuti & Associates. Chetcuti started Chetcuti & Associates […]

Die fragwürdigen Nebenverdienste deutscher Richter

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Die „Wirtschaftswoche“ macht (im Heft 14/2014) die Nebenverdienste der höchsten Richter zum Titelthema: „Im Namen des Geldes“. So kommen etwa Richter am Bundesfinanzhof auf einen durchschnittlichen Nebenverdienst von 25.200 €, wobei 57 von 59 Richtern noch neben ihrer herkömmlichen Tätigkeit noch eine Nebenbeschäftigung haben. Damit sind die Münchener zwar Spitzenreiter, jedoch nicht allein: Am Bundesarbeitsgericht […] Original: Die fragwürdigen Nebenverdienste deutscher Richter

Kein Ermittlungsverfahren wegen Untreue gegen Brandenburgs Wirtschaftsminister

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Brandenburgs Wirtschaftsminister Ralf Christoffers (Linke) gewährte einer mittlerweile insolventen Solarfirma eine Millionenförderung. Die Förderung mit 3,2 Millionen Euro rügte der Landesrechnungshof Ende 2013. Daraufhin nahm die Staatsanwaltschaft Vorermittlungen wegen des Verdachts der Untreue (§ 266 StGB) auf. Während dieser Vorermittlungen konnte jedoch kein Anfangsverdacht der Untreue festgestellt werden. Daher wird die Staatsanwaltschaft kein förmliches . . . → Read More: Kein Ermittlungsverfahren wegen Untreue gegen Brandenburgs WirtschaftsministerÄhnliche Beiträge:Keine Ermittlungen wegen Untreue gegen Bischof Tebartz-van…Ermittlungen wegen Untreue gegen Kiels OberbürgermeisterinKeine Strafe für Küchenchefs der Polizei HamburgUntreue: Staatsanwaltschaft klagt DJV-Chef anVerfahren wegen Untreue gegen Bürgermeister eingestellt…

KS: Odor of alcohol in a vehicle is not enough to justify a search

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The odor of alcohol in a vehicle is not enough to justify a search. Here, it was spilled on the interior, and a search produced drugs. State v. Stevenson, 2014 Kan. LEXIS 117 (March 28, 2014), revg 46 Kan. App. 2d 474, 262 P.3d 689 (2011): => Read more!

How Copyright Prevents Us From Getting the Books We Want

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Paul Heald, How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs), Ill. Pub. L. Res. Paper No. 13-54 (2013), available at SSRN.Christopher SprigmanBack in mid-2013, Paul Heald posted to SSRN a short paper that already has had far more impact than academic papers usually have on the public debate over copyright policy. That paper, How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs), employed a clever [...]

OH10: Driver advising of CCL and he's carrying permitted frisk of the car under Long

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Apparent hand to hand exchange of cash for something else in a high crime area where it happens all the time and this officer had made hundreds of arrests was reasonable suspicion for a stop. The officer talked to defendant, and that led to a patdown. The lawfulness of the patdown is moot because no evidence was obtained. When defendant advised the officer he had a concealed carry permit and a gun, that permitted the officer to remove him from the car and conduct a protective search for the gun. [In other words, no actual threat required.] State v. Bly, 2014-Ohio-1261, 2014 Ohio App. LEXIS 1132 (10th Dist. March 27, 2014): => Read more!

KY: Def who fled into friend's house to elude police had no standing to complain of entry to arrest him

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Defendant was driving an ATV on the road, and an officer pursued. Defendant eluded the officer, but the officer found the ATV behind a house. The officer went to the door, a woman named Parrot answered, and the officer came in and arrested defendant. He had [showed] no standing in Parrot’s house to complain of his own arrest there. “We agree with the trial court—Guinn had no standing to challenge the search of Parrot's house because he did not claim to own or live there at the time of the search and, thus, had no reasonable expectation of privacy in the home. Mackey v. Commonwealth, 407 S.W.3d 554, 557-556 (Ky. 2013).” Guinn v. Commonwealth, 2014 Ky. App. LEXIS 53 (March 28, 2014). Defendant’s appellate argument that the search was illegal wasn’t made below so it can’t be appealed. Crouse v. State, 2014 Tex. App. LEXIS 3422 (Tex. App. – Dallas March 27, 2014).*

Mustang Man Arrested for Possession of 21,000+ Images of Child Porn

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After an Internet Crimes Against Children (ICAC) undercover investigation indicated that a Mustang man was distributing child pornography over the internet, the Canadian County Sheriff’s Department made a startling discovery. They say that when they arrested Bobby Gene Landrum, 42, at his home in Mustang, he admitted to downloading and viewing child pornography “out of […]

E.D.Cal.: Cell phone search incident can't be sustained under Gant; following Wurie and Smith

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Defendant was stopped for no headlights, and the officers could smell marijuana and suspected he was under the influence of alcohol or drugs. When he was handcuffed and arrested, the car was subject to search incident for the source, and the automobile exception also applied. The search incident or automobile search of his cell phone, however, violated Wurie (CA1) and Smith (Ohio) and would be suppressed because of the private nature of a cell phone. Also, Gant made a search incident of a cell phone unsustainable under Robinson. [After all, is Robinson's cigarette pack remotely comparable to a smartphone? Hardly. Note that California state courts are contra with Riley granted cert with Wurie. Note also the suppression hearing was after the cert grant in Wurie and Riley.] United States v. Phillips, 2014 U.S. Dist. LEXIS 42294 (E.D. Cal. March 25, 2014): => Read more!

It Smells or It Stinks

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It may not be among the most common reasons for a car stop, but it happens often enough to raise again.  Officers driving with the windows of their cruiser down, smell marijuana and, upon that basis, stop a car.  It’s been raised innumerable times around the country, often being the subject of ridicule at the […]

Top Ten Rules for Partying in Ohio

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In light of the arrest made following the University of Dayton’s victory, we offer college students these rules for partying (legally) in Ohio. Rule #1: Don’t Drink and Drive Ohio has some of the most stringent drunk driving laws in the county.  A first-time offender faces 180 days in jail and a one thousand seventy-five dollar fine, loss of their driver’s license for up to three years and enhanced penalties upon subsequent convictions.  A DUI (called an OVI in Ohio [Read the full post. . .]

Employers Seeking to Curb Employee Mobile Phone Use at Work? Don’t Use Illegal Signal Jammer – FCC is “Listening”

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Some employers, particularly those in manufacturing, health care, and other situations where mobile phone use could interfere with employee safety, have come up with novel approaches to curbing employees’ uses of mobile phones.  While a policy restricting personal phone calls and texting may be acceptable, installation of a signal jammer to prevent employees from accessing […]

Controversy long after du Pont heir got probation as punishment for raping his small daughter

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As detailed in this lengthy local article from Delaware, headlined "Heir's sentence raises questions in child rape case," a high-profile child rape case from years ago is now generating new controversy because the low sentence imposed on the rapist just...

How Parents Can Prevent Connecticut Teen Driving Accidents!

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How Parents Can Prevent Connecticut Teen Driving Accidents! Driving accidents are the number one killer of teenagers. What if parents could be provided with a tool that could help to cut down on the number of accidents that occur – would it be used? Parent teen driving agreements are a proven way to review what […]
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