Sunday, February 4, 2024

Fourth Circuit Delivers Major Post-Ruan Decision Reversing All Counts of Conviction Against Dr. Joel Smithers

On Friday, February 2, 2024, in U.S. v. Joel Smithers, the Fourth Circuit reversed all counts of conviction against Martinsville, Virginia osteopath and pain-killer provider, Joel Smithers. The Government marshalled a mountain of evidence against Smithers, showing that he operated a classic pill-mill operation. But the case went to trial before the Supreme Court's landmark 2022 decision in Ruan v. United States. Ruan held that, in unlawful distribution cases against doctors, "[a]fter a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so." Acting in an unauthorized manner means acting without a legitimate medical purpose outside the scope of professional practice. Prior to Ruan, most circuits allowed the Government to prevail if it proved either that a physician acted without a legitimate medical purpose or that he/she acted outside the scope of professional practice. And, importantly, the prosecution was allowed to prove that a doctor acted outside the scope of professional practice under an objective standard, without regard to the defendant's subjective intent or knowledge.  Ruan changed all that. Dr. Smithers was convicted under an instruction that allowed the jury to convict him without regard to his state of mind. That is why he gets a new trial. The unanimous panel opinion, written by Judge Roger Gregory, rejected various waiver and harmless error arguments advanced by the Government. Congratulations to Beau Brindley and his colleagues for the victory. Here is the opinion:

U.S. v. Joel Smithers (4th Cir. 2024).

(wisenberg)

February 4, 2024 in Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Thursday, February 1, 2024

Robert Hunter Biden Motion to Dismiss Federal Gun Charges: The Briefs Are In.

The briefing is now complete on Hunter Biden's Motion to Dismiss Based on Immunity Conferred by his Diversion Agreement. This motion was filed in the District of Delaware where three felony gun counts are pending against Biden. Biden contends that the Diversion Agreement was a binding contract once signed by the parties to it, and that the only parties to it were Biden and the U.S. Attorney's Office. DOJ disagrees on both points. Biden also argues that U.S. Probation's approval was not necessary and that, even it was necessary, U.S. Probation in fact approved the Agreement.  A similar motion will no doubt be filed in the federal tax case now pending in the Central District of California, with respect to the aborted tax-related Plea Agreement, but Biden's chances of success are much better at getting the federal gun charges in Delaware dismissed, since Diversion agreements do not require approval by the district court. The Diversion Agreement was related to the overall Plea Agreement that blew up last July in Judge Maryellen Noreika's Delaware federal courtroom. Here are Biden's original brief, the Government's Response, and Biden's Reply. Attached also is the Declaration of Christopher Clark, who was Biden's attorney involved in the negotiations surrounding the Plea and Diversion Agreements.

U.S. v. Robert Hunter Biden-Defendant's Motion to Dismiss Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden-Government's Response to Defendant's Motion to Dismiss Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden-Reply in Support of Motion to Dismiss the Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden--Declaration of Christopher J. Clark.

(wisenberg)

 

 

February 1, 2024 in Celebrities, Corruption, Current Affairs, Defense Counsel, Deferred Prosecution Agreements, Investigations, Judicial Opinions, Media, News, Privileges, Prosecutions, Prosecutors, Tax | Permalink | Comments (0)

Wednesday, January 31, 2024

Opening Supreme Court Brief in Fischer v. United States

As I noted last week, "the U.S. Supreme Court recently granted the Petition for Writ of Certiorari filed in Fischer v. United States, one of three cases in which the United States Court of Appeals for the D.C. Circuit interpreted 18 U.S.C. Section 1512(c) in the context of the January 6 assault on the U.S. Capitol. In addition to its importance in the prosecution and conviction of January 6 protesters and Donald Trump, the case has potentially broad implications for federal white collar criminal law. This is because it involves the proper interpretation of the word 'corruptly', a term that appears frequently in federal white collar statutes. On Monday of this week, Petitioner Josph Fischer filed his opening merits brief. Here it is."

Fischer v. United States-Petitioner Fischer's Opening Merits Brief.

(wisenberg)

January 31, 2024 in Arthur Andersen, Congress, Corruption, Current Affairs, Enron, Investigations, Judicial Opinions, News, Obstruction, Prosecutions | Permalink | Comments (0)

Thursday, January 25, 2024

U.S. v. Stephen Bannon Case Materials: Willfulness and the Reliance on Advice of Counsel Defense.

We are awaiting any day now a ruling from the U.S. Court of Appeals for the District of Columbia Circuit on Steve Bannon's appeal of his conviction for violating Title 2, United States Code, Section 192 by willfully refusing to testify or provide documents to the January 6 Committee in response to its subpoena. In allowing Bannon to remain free on bond pending appeal, U.S. District Judge Carl Nichols noted that Bannon's appeal raised substantial questions of law: "In particular, as I've noted throughout this case, there is a substantial question regarding what it should mean for a defendant to willfully make default under the contempt of Congress statute and what evidence a defendant should be permitted to introduce on that question." Bannon was prevented from introducing evidence, arguing to the jury, or having the trial court instruct the jury, that his attorney had advised him not to comply with the subpoena. Under a 63-year-old D.C. Circuit precedent, Licavoli v. United States, willfulness in the context of Section 192 does not require a showing that the defendant intended to violate the law or acted with an evil motive or bad purpose. The government need only prove that the failure to comply was deliberate. It is extremely unlikely that Licavoli is still good law today, given numerous Supreme Court white collar crime opinions since 1961 requiring the government to prove an intent to violate a known legal duty in order to show willfulness. Here are some case materials from U.S. v. Stephen Bannon.

U.S. v. Stephen Bannon - Sentencing Hearing Transcript Excerpt.

U.S. v. Stephen Bannon - Declaration of Robert J. Costello.

U.S. v. Stephen Bannon - Defendant's Opposition to Government Motion in Limine on Advice of Counsel.

U.S. v. Stephen Bannon - Government's Reply re Motion in Limine on Advice of Counsel Defense 3.8.22 - FINAL.

U.S. v. Stephen Bannon - Defendant's Surreply re Government Motion in Limine on Advice of Counsel.

(wisenberg)

January 25, 2024 in Celebrities, Congress, Contempt, Current Affairs, Judicial Opinions, Media, News, Obstruction, Privileges, Prosecutions, Sentencing | Permalink | Comments (0)

Tuesday, January 23, 2024

Supreme Court Grants Cert. Petition in Fischer v. United States

The U.S. Supreme Court recently granted the Petition for Writ of Certiorari filed in Fischer v. United States, one of three cases in which the United States Court of Appeals for the D.C. Circuit interpreted 18 U.S.C. Section 1512(c) in the context of the January 6 assault on the U.S. Capitol. In addition to its importance in the prosecution and conviction of January 6 protesters and Donald Trump, the case has potentially broad implications for federal white collar criminal law. This is because it involves the proper interpretation of the word "corruptly", a term that appears frequently in federal white collar statutes. Title 18, U.S.C. Section 1512 is titled, "Tampering with a witness, victim, or informant." Section 1512(c) provides that:

"(c) Whoever corruptly-

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both."

The immediate question in Fischer was whether Section 1512(c)(2) applied to January 6 protesters who delayed Congressional counting and certification of electoral votes from the 2020 Presidential election.  Section 1515 of Title 18 defines an "official proceeding", as used in Section 1512, as "a proceeding before the Congress." The government argued that the January 6 riot obstructed an official proceeding, because it obstructed a proceeding before the Congress. To the government, it was a matter of straightforward textual interpretation. The defense argued that that the history and structure of 1512(c)(2), passed as part of the Sarbanes-Oxley Act (in response to the Enron scandal) to fix a loophole in the federal obstruction of justice statutes, showed that the statute only applied to classic efforts to obstruct evidentiary proceedings. More to come on this important case.

Attached is the Petition for Writ of Certiorari that was granted by the Supreme Court. Fischer v. United States-Petition For A Writ Of certiorari.

(wisenberg)

January 23, 2024 in Arthur Andersen, Congress, Corruption, Current Affairs, Enron, Investigations, Judicial Opinions, News, Obstruction, Prosecutions | Permalink | Comments (0)

Tuesday, December 26, 2023

Fortenberry Conviction Reversed on Venue Issue

In United States v. Fortenberry, the Ninth Circuit "reversed former congressman Jeffrey Foretnberry's conviction" for allegedly making a false statement in violation of the false statement statute (18 USC 1001). It remands the case without prejudice to retry in a proper venue. 

The government extends venue beyond its deeped rooted constitutional origins in cases alleging that an "effects-based" test can be used for venue in false statement cases. In rejecting this approach, the Ninth Circuit states:

Because a Section 1001 offense is complete at the time the false statement is uttered, and because no actual effect on federal authorities is necessary to sustain a conviction, the location of the crime must be understood to be the place where the defendant makes the statement.

The court concludes:

Fortenberry’s trial took place in a state where no charged crime was committed, and before a jury drawn from the vicinage of the federal agencies that investigated the defendant. The Constitution does not permit this. Fortenberry’s convictions are reversed so that he may be retried, if at all, in a proper venue.

(esp)

December 26, 2023 in Judicial Opinions | Permalink | Comments (0)

Thursday, December 14, 2023

Supreme Court Grants Cert. Petition in Snyder v. United States

There is a circuit split on whether 18 U.S.C. Section 666 prohibits bribes alone or bribes and gratuities. We recently discussed it here. Yesterday the Supreme Court finally decided to resolve that split, granting the petition for writ of certiorari in Snyder v. United States. Attached is the outstanding Amicus Brief filed on behalf of the National Association of Criminal Defense Lawyers by Latham & Watkins. James Snyder v. United States - NACDL Amicus Brief in Support of Petitioner.

(wisenberg)

December 14, 2023 in Corruption, Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Tuesday, December 12, 2023

Free Speech v. Fair Trial: D.C. Circuit Rules on Trump Gag Order

On Friday, December 8, 2023,  a panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed in part and vacated in part District Court Judge Tanya Chutkan's Gag Order in U.S. V. Trump. Here is the opinion, written by Judge Patricia Millett. Trump's attorneys praised the opinion, but vowed to appeal. 

(wisenberg)

December 12, 2023 in Current Affairs, Defense Counsel, Judicial Opinions, Legal Ethics, Media, News, Obstruction, Privileges, Prosecutions | Permalink | Comments (0)

Monday, December 4, 2023

Trump Immunity Claim Rejected By D.C. Circuit For Now

On Friday December 1, 2023, in Blassingame v. Trump, the U.S. Court of Appeals for the D.C. Circuit ruled that, at this stage of the proceedings, former President Donald Trump is not entitled to dismiss the consolidated civil case against him (brought by Capitol Police officers and others who were present at the Capitol on January 6, 2021) based on the doctrine of Presidential Immunity. Importantly, and overlooked in most of the press reporting on the ruling, the Court left open the possibility that Trump could prevail on a later motion for summary judgement. But at this stage of the proceedings, prior to the development of a factual record, the Court had to accept the plaintiffs' allegations as true. Since a President's purely private acts, even while serving as President, are not protected by the doctrine of Presidential Immunity, the record was not sufficiently developed to grant the former President's motion to dismiss.

Here is the opinion in Blassingame v. Trump.

(wisenberg)

December 4, 2023 in Civil Litigation, Current Affairs, Judicial Opinions, News, Privileges | Permalink | Comments (0)

Thursday, November 30, 2023

U.S. v. Calk: 18 U.S.C. Section 215 and Perspective Rolls

In a case of first impression in the Second Circuit regarding 18 U.S.C. Section 215, a panel has affirmed the conviction of Stephen Calk. Calk facilitated The Federal Savings Bank's ("TFSB") approval of significant loans to Paul Manafort in exchange for Manafort's assistance in securing positions for Calk in the Trump Campaign and, later, the Trump Administration. Calk was TFSB's CEO. The Trump Administration position did not pan out, despite Calk's submission of a a professional biography and document entitled “Stephen M. Calk Perspective Rolls in the Trump Administration." The Court held that Calk's assistance was a "thing of value" within the meaning of the statute and that Calk's conduct in facilitating the loans was "corrupt" under the statute.

Here is the opinion.

(wisenberg)

November 30, 2023 in Corruption, Current Affairs, Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Tuesday, November 28, 2023

Gratuities and 18 U.S.C. Section 666: Will The Supremes Finally Slay The Mark Of The Beast?

On December 8, 2023, the U.S. Supreme Court will decide whether to grant the Petition for Writ of Certiorari in United States v. James Snyder, a case out of the United States Court of Appeals for the Seventh Circuit. There is a split in the federal circuit courts over the question of whether 18 U.S.C. Section 666 criminalizes gratuities as well as bribes. The majority of circuits have held that 666 criminalizes both bribes and gratuities. A minority of circuits have held that the statute only criminalizes bribes. The case has enormous implications for the federal prosecution of public corruption at the state and local level in the United States. Attached are the relevant filings by the government and the defense, plus a brilliant amicus brief filed by the National Association of Criminal Defense Lawyers.

U.S. v. James Snyder Petition for Writ of Certiorari

U.S. v. James Snyder Government Brief in Opposition to Cert. Petition

U.S. v. James Snyder Defense Cert Reply

NACDL Amicus Brief in Snyder v. U.S.

 

(wisenberg)

 

 

November 28, 2023 in Corruption, Fraud, Investigations, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Monday, November 20, 2023

Judge Chutkan Denies Trump's Motion To Strike Allegedly Inflammatory Portions of the Indictment

On Friday, D.C. United States District Court Judge Tanya Chutkan, unsurprisingly, denied former President Donald Trump's Motion to Strike Inflammatory Allegations from the Indictment in U.S. v. Trump. At issue were the portions of the Indictment covering the January 6, 2021, assault on the U.S. Capitol by some of Trump's supporters, which, according to the defense, constitute irrelevant and prejudicial surplusage. Motions to strike surplusage are disfavored under U.S. Court of Appeals for the D.C. Circuit case law and need not be granted by the trial court unless a defendant can establish that the challenged  language is both irrelevant to the charges and prejudicial. Judge Chutkan did not reach the question of relevance, finding that Trump had failed to show that the alleged surplusage would prejudice the jury, particularly in light of her practice, which she intends to follow in this case, of not sending indictments back to the jury room during deliberations. Chutkan also promised to weed out prejudice in the jury panel, caused by the government or Trump, during the voir dire process. Here is the opinion.  U.S. v. Donald Trump - Order Denying Defendant's Motion to Strike Inflammatory Allegations from the Indictment

(wisenberg)

November 20, 2023 in Celebrities, Current Affairs, Investigations, Judicial Opinions, News, Obstruction, Prosecutions, Prosecutors | Permalink | Comments (0)

Saturday, November 18, 2023

Trump Gag Order Appeal: Oral Arguments Are Next Up In D.C. Circuit

The parties' briefs are all in and the case is set for oral argument on Monday, November 20, at the U.S. Court of Appeals for the District of Columbia. Gathered together here are: Former President Trump's Opening Brief re Appeal of Judge Chutkan's Gag Order; the Government's Answering Brief; Trump's Reply Brief; and the Gag Order itself.

10-17-23 Trump Gag Order in DC Case

U.S. v. Trump - Donald Trump's Opening Brief re Appeal of Gag Order

U.S. v. Trump - Answering Brief of the United States re Donald Trump's Appeal of Gag Order

U.S. v. Trump - Reply Brief of Defendant-Appellant Donald Trump re Trump's Appeal of U.S. District Court Chutkan's Gag Order

(wisenberg)

November 18, 2023 in Celebrities, Current Affairs, Defense Counsel, Investigations, Judicial Opinions, Legal Ethics, Media, News, Privileges, Prosecutions, Prosecutors | Permalink | Comments (0)

Wednesday, November 8, 2023

D.C. Circuit Grants Administrative Stay in Trump Gag Order Appeal

On Friday afternoon, November 2, 2023, the U.S. Court of Appeals for the District of Columbia Circuit granted an administrative stay of Judge Chutkan's 10-17-23 Gag Order in U.S. v. Trump. The Court was careful to point out that, "[t]he purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for a stay pending appeal and should not be construed in any way as a ruling on the merits of that motion." In other words, the Court issued an administrative stay while considering, on an expedited basis, Trump's Motion for a Stay of the Gag Order pending appeal of that Order. The granting of the administrative stay did not involve any analysis of the likelihood of Trump's ultimate success on the merits of the Gag Order. Trump's brief on the Motion for Stay Pending Appeal is due today, 11-8-23, as is the Joint Appendix. The Government's Response is due 11-14-23. Trump's Reply is due 11-17-23. Oral argument is set for 11-20-23.

Here is Defendant-Appellant Donald Trump's Emergency Motion for Stay Pending Appeal and Request for Temporary Administrative Stay of Gag Order.

Here is the Circuit Court's Friday Order Granting an Administrative Stay.  U.S. v. Donald Trump - U.S. Court of Appeals for D.C. Order Granting Administrative Stay of Trump Gag Order.

Stay tuned for more.

(wisenberg).

November 8, 2023 in Contempt, Corruption, Current Affairs, Defense Counsel, Fraud, Investigations, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)

Monday, October 30, 2023

Chutkan Order and Opinion Lifting Administrative Stay of Donald Trump Gag Order and Denying Former President Trump's Motion to Stay Gag Order Pending Appeal

The U.S. District Court for the District of Columbia has finally fixed the glitch in its electronic filing system. Here is yesterday's U.S. v. Trump - Opinion and Order Denying Motion to Stay Gag Order Pending Appeal. Judge Chutkan also lifted her prior administrative stay of the Gag Order, so it is now in effect. She denied without prejudice the government's request to modify the Gag Order as unnecessary, even assuming it was procedurally proper. The defense maintained that the Gag Order could not be modified since the case was on appeal.

Former President Trump had filed his Reply in support of the Motion to Stay on Saturday, and Judge Chutkan discusses Trump's Reply in her Sunday Opinion and Order. Here is Trump's Reply:  U.S. v. Trump - President Trump's Reply in Support of Motion for Stay of Gag Order Pending Appeal.

Here, for convenience purposes, is the 10-17-23 Trump Gag Order in DC Case.

(wisenberg)

 

October 30, 2023 in Current Affairs, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)

Thursday, October 26, 2023

Trump Gag Order Filings

Former President Donald Trump appealed U.S. District Court Judge Tanya Chutkan’s October 17 Gag Order the day it was issued and asked Judge Chutkan on October 20 for a stay of the Gag Order pending appeal and an immediate administrative stay of the Gag Order while the Stay Motion was being briefed in her court. Judge Chutkan granted an administrative stay on October 20 and ordered the government to respond to Trump’s Stay Motion by October 25. Special Counsel Jack Smith filed his response in opposition to the stay last night. But Smith was able in his Response to complain about new Trump posts and comments that have occurred in the 5 days since the Gag Order was imposed and Smith now wants the stay lifted and the Order modified to make it even stronger. Here are former President Trump's Motion to Stay and the Government's Opposition.

U.S. v. Trump - President Trump's Motion For Stay Pending Appeal.

Download U.S. v. Trump - Government's Response in Opposition to Motion to Stay.

(wisenberg)

October 26, 2023 in Contempt, Current Affairs, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)

Wednesday, October 25, 2023

The Dangers of a Partially Binding Plea and a Broad Appellate Waiver.

Diana Toebbe and her husband were arrested and charged with espionage-related crimes--specifically, conspiracy to communicate, transmit, or disclose Restricted Data of the U.S. Navy (relating to Virginia-class nuclear-powered submarines) with the intent to injure the United States, in violation of 42 U.S.C. Section 2274(a). The plot was foiled when the foreign government solicited by the Toebbes tipped off the U.S. Government. Diana's original binding plea agreement, providing for a sentence of not more than 36 months, was rejected by the U.S. District Court as "strikingly deficient." The government and Toebbe returned with a new plea agreement, which contained the standard federal waiver of the right to appeal (that is, a waiver for everything other than prosecutorial misconduct or ineffective assistance of counsel) and bound the court to sentence Toebbe to the lowest possible Guideline sentence within the Guidelines Range determined by the sentencing court.  All of the other stipulations in the second plea agreement were recommendations only, which did not bind the court. The government recommended a Guidelines range of 108 to 135 months. The court accepted the plea agreement but rejected some of the parties' recommendations, including Toebbe's status as a minor participant and a three-point downward adjustment for acceptance of responsibility. The court also rejected the government's motion for a three-level downward departure for substantial assistance and assessed two points for obstruction of justice (based on two coaching letters that Toebbe unsuccessfully attempted to send to her husband). The result? A Guidelines Range of 262-327 months. The sentencing court, abiding by the binding terms of the plea agreement, then sentenced Toebbe to 262 months. This was longer than the sentence received by her husband, the person who stole the Restricted Data in the first place. Toebbe made various arguments as to why the sentence was invalid, all to no avail. It could happen to any of us. Binding plea deals to a set specific maximum sentence, like the one contained in the original plea agreement, are still a rarity in most federal jurisdictions. Reading the warning signs when the judge emphatically rejected the original deal, the parties came back with a substantially harsher sentencing recommendation, but one that was a recommendation only, based on predicate recommendations that the court also was not bound to accept. And there is nothing that anybody can do about it, given the standard appellate waiver demanded by the government in most federal plea deals. Here is the opinion in U.S. v. Diana Toebbe (4th Cir. 2023).

(wisenberg)

October 25, 2023 in Judicial Opinions | Permalink | Comments (0)

Tuesday, October 24, 2023

11th Circuit Applies U.S. v. Boyle's bright-line rule to E-Filed Tax Returns

From yesterday's opinion in Wayne Lee v. United States:

"The IRS penalizes taxpayers for filing late tax returns, unless the delay 'is due to reasonable cause and not . . . willful neglect.' 26 U.S.C. § 6651(a)(1). In United States v. Boyle, the Supreme Court established the bright line rule that 'reliance on an agent,' without more, does not amount to “reasonable cause” for failure to file a tax return on time. 469 U.S. 241, 248, 252 (1985). The question in this appeal is whether Boyle’s bright line rule applies to e-filed returns." Gues what? It does. Even though Plaintiff Wayne Lee's CPA failed to file Lee's tax returns for three straight years (2014-16), the IRS assessed penalties of over $70,000.00 and refused to let Lee apply his 2014 overpayment to the 2015 and 2016 tax years. Lee argued that his delay in filing was due to reasonable cause, rather than willful neglect, as he relied on his CPA to file the returns in a timely manner. The district court ruled against Lee, citing Boyle and the 11th Circuit affirmed. The opinion is here.

(wisenberg)

October 24, 2023 in Judicial Opinions, Tax | Permalink | Comments (0)

Thursday, October 19, 2023

11th Circuit Narrows 18 U.S. Code Section 1521

Title 18, United States Code, Section 1521 prohibits the knowing filing of false liens or encumbrances against the property of an individual described in 18 U.S.C. Section 1114 [an officer or employee of the United States], "on account of the performance of official duties by that individual." In U.S. v. Pate, the 11th Circuit recently held that the statute did not apply to liens filed against individuals listed in Section 1114 if the individuals were no longer in office when the liens were filed. This was an en banc decision. Appellant, a tax protester, had knowingly filed liens against the respective properties of a former IRS Commissioner and a former Secretary of the Treasury. Pate conceded that he filed the liens on account of the officials' performance of their official duties, but contended that the statute only applied to officials still serving when the liens were filed. A majority of the 11th Circuit judges agreed.

(wisenberg)

October 19, 2023 in Judicial Opinions, Prosecutors | Permalink | Comments (0)

Wednesday, October 18, 2023

Release Pending Appeal Granted Based on Substantial Question Regarding Ineffective Assistance of Counsel

It is a truism that federal circuit courts very seldom entertain ineffective assistance of counsel claims on appeal, because the record below is usually inadequately developed. Criminal defendants typically must wait to raise such claims in a habeas petition. But last week the Sixth Circuit released appellant Faraday Hosseinipour pending her appeal, holding that she had already raised a substantial question regarding her trial counsel's competence. Trial counsel was her brother-in-law who had almost no federal criminal experience. More to come on this case in the coming days. Here is the 6th Circuit Order on Motions for Release Pending Appeal.

(wisenberg)

October 18, 2023 in Defense Counsel, Judicial Opinions | Permalink | Comments (0)