Wow. New-trial motion granted; decision affirmed.

United States v. Lewis, No. 12-3262 (6th Cir. April 16, 2013) (not for publication).

Panel of Judges Suhrheinrich, Moore, and Gibbons.

Fire killed a number of children and injured other people.  Defendant charged with arson resulting in death, a violation of 18 U.S.C. 844(i).  Jury convicted defendant.  Defendant moved dist ct for new trial on grounds the verdict was against the manifest weight of the evidence.  Dist ct granted motion and issued 95-page opinion.  Gov appealed.  COA affirmed. 

* Dist ct found a key witness's testimony internally inconsistent, unreliable, and lacking corroboration.  This witness had a 30-year criminal history, mental-health problems, only a sixth-grade education, and a long history of incarceration and time in state hospitals.  No phone records connecting this person, allegedly close to the defendant, with the defendant.  Witness had received benefits from ATF, so had reasons to lie. 

* Dist ct mistrusted the inmate informants.  Discounted the testimony of other witnesses for a variety of reasons. 

* COA sees dist ct as a sort of "thirteenth juror." 

* "The district court properly evaluated the weight and credibility of all of the evidence adduced at trial and its determination that the verdict was against the manifest weight of the evidence was not an abuse of discretion. Sitting as the thirteenth juror, the district court did not abuse its discretion in concluding that many government witnesses, including Jackson, the inmate informants, and community witnesses testifying to Lewis’s involvement and possible motive, were incredible."

 

* "Although we make no statement as to whether such proof could sustain a guilty verdict, we hold that the district court did not abuse its discretion in determining that the guilty verdict in this case was against the manifest weight of the evidence.  In light of our deferential review of orders granting motions for a new trial, the district court’s thorough and thoughtful review of the evidence, and its superior position to evaluate the credibility of witnesses, we affirm the judgment of the district court.

Speedy-Trial Case Worth a Look

Another one from last week about which I just blogged on 6th Cir. blog.

US v. Heshelman, Nos. 10-1049/1223 (6th Cir. April 12, 2013) (not for publication).

Panel of Judges Clay, Gibbons, and White.

Dist ct said that an approximately three-year delay b/t indictment and trial not a speedy-trial violation. COA reversed.

Money laundering and fraud.

Indictment filed in 2006 (shortly before S of L expired) and was sealed, so gov could continue investigating. But gov didn't do much---just kept a journal of the defendant's contacts with the alleged victims.

Defendant one in Switzerland. Issue with potential extradition. Defendant got in touch with FBI agent b/c knew of investigation, which was hampering his business. Agent did not inform defendant of indictment, which had been filed at that point. Gov finally requested extradition from Switzerland in 2009. Trial commenced about four months later. Jury convicted on all counts.

A second defendant was told by FBI of warrant for his arrest in '08; defendant said he wanted to cooperate. Pleaded guilty about six months later.

First defendant complained of speedy-trial violation b/c of three-year delay in arrest and trial. Second defendant complained b/c gov knew of his whereabouts, but decided not to proceed with his trial until first defendant arrested.

Factors:

* Length of delay and defendant's assertion of rights. Trial delay of a year or more generally presumed prejudicial and triggers consideration of other factors. Gov conceded this presumption and that appellant asserted speedy-trial rights in timely manner.

* Reason for delay. Gov conceded it followed a "wait-and-see" course and sought to arrest the first defendant when the latter returned to the US to see family. Extradition difficult and gov wanted complete control of prosecution. But gov obligated to act diligently, even when a defendant is in a foreign country. Here, actively seeking extradition would not have been futile: there was an extradition treaty with Switzerland. Gov just didn't pursue extradition b/c didn't want Switzerland to place conditions on the extradition. But gov made only one attempt to see what conditions might be. Switzerland had been responsive. But gov just waited for the defendant's return to the US. Can't wait indefinitely. Defendant didn't flee the jurisdiction to avoid the charges; he had lived in Switzerland before the alleged scheme began.

* Prejudice. Presumption here, and gov didn't rebut.

First defendant's speedy-trial rights were violated.

As to second defendant:

* Gov could have arrested him at any time. Gov conceded presumptive prejudice. Also conceded timely assertion of rights.

* Once indictment unsealed and warrant for arrest issued, defendant two turned himself in.

* Gov also admitted that it delayed b/c if defendant two were tried alone he might prevail by just blaming defendant one. Gov interest in trying alleged co-conspirators together does not automatically justify delay. And gov did not delay while diligently searching for defendant one, as already discussed. Gov was just delaying extradition of defendant one.

Second defendant's speedy-trial rights violated.

Reversed and remanded with instructions to dismiss indictment with prejudice.

Concurrence by Judge Clay:

Agrees that speedy-trial rights violated. Looks more closely at reason for delay. What is standard of review? Considerable deference, according to SCOTUS. . . . Like clear-error review.

Sell Victory

Just posted to the 6th Cir. blog.  Big victory on involuntary medication!

US v. Grigsby, No. 11-3736 (6^th Cir. April 11, 2013) (for publication).

Panel of Judges Merritt, McKeague, and Stranch.

Dist ct entered order allowing gov to involuntarily medicate a defendant who had been diagnosed as paranoid schizophrenic to restore competency. Given the circumstances, the COA reversed the order and found that the defendant’s liberty interest in avoiding involuntary medication outweighed the government’s interest in prosecution.

Defendant had been charged with three counts of unarmed bank robbery.

Defendant was middle aged, homeless, and diagnosed with paranoid schizophrenia. Incompetent to stand trial. Refused oral medicines for schizophrenia. Not gravely disabled or a danger to himself or others or to the safe functioning of the facility, so no involuntary medication under Washington v. Harper, 494 U.S. 210 (1990). So gov sought involuntary medication under Sell. Got order. Interlocutory appeal by defendant followed.

Key points:

· There was an important gov interest in bringing defendant to trial. Bank robbery is serious.

· But the inquiry is “fact intensive.”

· Potential for lengthy civil commitment tempers gov’s interest in trial. Two potential courses for commitment and both should be considered: under 18 USC 4243 (not guilty b/c insane) and 4246 (hospitalization after time for release).

· Defendant might be found not guilty by reason of insanity, even if competence is restored. Undermines gov’s interest in prosecution.

· If involuntarily medicated, the defendant would still be in custody for about the same period as the advisory guideline range. Lessens gov interest in prosecution.

· Involuntary medication should be rare.

· Side effects of meds could affect fairness of trial. Defendant might have to stand trial and be subject to involuntary movements, the inability to stay still, a loss of dignified carriage in front of the jury, and difficulties assisting counsel, all caused by the meds. Side effects can be irreversible.

COA reviews several cases and compares and distinguishes them.

COA points out that “victory” for either party may be a double-edged sword. . . .

Case remanded with anticipation of civil-commitment proceedings.

Judge McKeague dissented. Disagrees with the special-circumstances analysis. Civil commitment is speculative. Defendant unlikely to prevail on insanity defense. Disagrees with majority’s discussion of potential sentence and potential side effects.