Two doctors,Steven Brigham, 55, of Voorhees, New Jersey and Nicola Riley, 46, of Salt Lake City were arrested and charged with fetal homicide in Maryland, based on a botched abortion.

Under Maryland law it is unlawful to kill a viable fetus. But to be convicted of murder the state has to prove that the doctors intended to kill a viable fetus.

Brigham, who owns American Women’s Services (AWS), is charged with five counts of first degree murder, five counts of second degree murder and one count of conspiracy. His employee, Riley is charged with one count of first degree murder and one count of second degree murder, as well as the conspiracy charge. It is unclear how they get the five counts of murder. But, it is alleged that Brigham and Riley began a late term abortion on an eighteen year old patient at Brigham’s Vorhees, New Jersey clinic. Late term abortions are illegal in New Jersey so they brought the patient of Maryland to complete the abortion. Due to problems during the abortion the patient suffered from a ruptured uterus and bowel injuries. According to the New Jersey State Board of Medical Examiners the teenager was one of five women who Brigham began late term abortions in New Jersey and completed them in Maryland.

To make matters even more complicated Brigham practiced at American Family Planning (AFP) Inc in Pensacola, Florida during the 1990′s. AFP gave Brigham’s address as its mailing address. AFP’s building was the subject of a fire causing between $50,000 and $75,000 worth of damage, Sunday. There is no proof of a relationship between the fire and the Maryland charges but an investigation is continuing. ¹

The one thing we know for sure is that it is too early to prejudge the situation. The indictment has not even been released and the defendants have not been extradited. Brigham does not seem to have too many friends either inside the abortion community or outside. While many people might like to see him go down that does not mean he is guilty. We need to wait until the evidence has been released and the case is more clear. Nor is he guilty purely because he has a history of discipline by state medical boards.

A jury in the Northern District of New York found Mark Desnoyers guilty on a number of counts including conspiracy to violate the Clean Air Act and to commit mail fraud in violation of 18 U.S.C. § 371. The judge overruled the jury and entered a judgment of acquittal on the conspiracy count finding the evidence both factually and legally insufficiency.

Factual insufficiency is fairly easy to understand. If no rational jury could find the defendant guilty based upon the evidence presented factual insufficiency exists. But in this case Desnoyers was charged with conspiracy to commit violations of both the Clean Air Act and mail fraud. With factual innocence, if there is more than one way a defendant can be found guilty, the conviction is upheld if there is any way the jury could have found the defendant guilty. Desnoyers claimed that a jury could not find him guilty of conspiracy to violate the Clean Air Act but he made no claim about mail fraud. Since he could have been convicted of conspiracy to commit mail fraud the appellate court reversed the trial judge’s reversal of the jury finding in regard to factual innocence.

Legal innocence is a more complicated issue. ” A legal challenge . . . questions whether a conviction rests on a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence.” Another difference between legal insufficiency and factual insufficiency is that with legal insufficiency if under any theory before the jury the conviction was legally insufficient the conviction must be reversed. Desnoyers was charged with violating the Clean Air Act in regard to eight buildings. He was an asbestos inspector. The Clean Air Act applies to commercial buildings and residential buildings with more than four units. “[A]dditionally, buildings must contain “friable” asbestos and at least 260 linear feet of asbestos on pipes or 160 square feet of asbestos on other facility components in order to be subject to the regulations.” After the trial the government admitted that seven of the eight buildings did not meet the requirements. In the eighth building no one measured the amount of asbestos since it was removed before the government agents arrived. However a number of people referred to the building as “a large job.” In the trade “a large job” means that it is covered by the Clean Air Act. Desnoyers claimed that there was legal insufficiency because their was insufficient evidence to prove a violation of the law in that the amount of asbestos had not been measured. However, the Second Circuit Court of Appeals ruled that Desnoyers failed to understand what was meant by legal insufficiency. Desnoyers explanation does not meet the test of whether a conviction rests on a mistake of law. The question should be whether what Desnoyers did was legal but he was convicted because of a mistake of law. For example if the judge misdirected the jury and he was convicted of an action that was actually legal.. If the judge misdirected the jury then the conviction would rest on a mistake of law and would be reversed for legal insufficiency. But in this case the judge correctly instructed the jury and the jury found Desnoyers to be in violation of the law.

The Second Circuit remanded the case with instructions to reinstate the jury verdict and to sentence Desnoyers, accordingly.

Colin Spotted Elk and Flint Thomas Red Feather, along with fourteen others,were convicted of participating in a conspiracy to sell drugs on the Pine Ridge Oglala Sioux reservation in South Dakota.

Spotted Elk was originally convicted on a number of charges including using a firearm in a drug trafficking crime. While his appeal was pending the Supreme Court held that the statute did not apply to people such as Spotted Elk who traded drugs for guns. The case was remanded and he was resentenced. When he was resentenced the court enhanced his sentence for using a dangerous weapon and in the current appeal he challenged the use of the enhancement.

As a result of the enhancement he was sentenced to 352 months. Sometimes it seems like it’s not worth appealing but the appellate court ruled that the trial court was within its discretion to add the enhancement on resentencing even though it had not been originally used.

As to Flint Thomas Red Feather the trial court, in applying the guidelines, used a guideline for one who conspires to sell between five and fifteen kilograms of cocaines and sentenced him to 151 months. Red Feather argued that he only sold 3 kilograms 14 ounces before he moved off the reservation and withdrew from the conspiracy. But the appellate court ruled that the question was not how much cocaine Red Feather sold but rather how much it was foreseeable that he would sell during the pendency of the conspiracy. Looking at it this way the appellate court agreed with the trial court that he should be sentenced as if he had sold five kilograms.

A Texas judge sentenced former House minority leader, Tom Delay, to three years in prison for a scheme to contribute corporate money, in violation of Texas law, to Republican candidates, yesterday.

The scheme involved directing $190,000 to the Republican National Committee. Then the Republican National Committee donated $190,000 to Republican races in Texas. The goal was to obtain a Republican majority in the Texas Legislature which would then be able to gerrymander Congressional districts to increase the number of Republicans in the Texas delegation, strengthening Delay’s position in the Congress and in the state.

DeLay violated at least two cardinal rules of sentencing at the hearing before Senior Judge Pat Priest in Austin. First he denied doing anything wrong. That may work before the jury makes a finding of guilt. But once the jury makes that decision you are guilty and denying wrongdoing is not going to get you favorable treatment from a judge.

Second, he blamed the prosecutor for selective prosecution. Since most judges are former prosecutors this doesn’t work. Furthermore it is likely that the same judge who is about to sentence you denied an earlier motion to dismiss the case on selective prosecution grounds. This is not the way to get favorable treatment from the judge.

You are better off saying nothing that criticizing the prosecution of denying guilt.

DeLay was convicted on two counts. One count involved a conspiracy to violate the Texas law prohibiting donating corporate money to candidates. The other count charged money laundering. Judge Priest ¹sentenced DeLay to three years in prison on the conspiracy charged and gave him ten years probation on the money laundering count.

The judge released him on $10,000 bail pending appeal. There are a number of appellate issues in the case. But perhaps the major one is the use of the money laundering statute. The typical defendant convicted of money laundering uses money earned in drug transactions to finance legitimate business. Then he/she takes the money out of the business and legally deposits it in the bank. If this defendant attempted to deposit drug money directly into the bank he/she would be caught and charged with drug dealing. But it is the attempt to take dirty money and make it into legal profit that is money laundering. The IRS defines “money laundering” as referring “to the activities and financial transactions that are undertaken specifically to hide the true source of the money. In most cases, the money involved is earned from an illegal enterprise and the goal is to give that money the appearance of coming from a legitimate source.”

Texas law defines money laundering as:

(a) A person commits an offense if the person knowingly:

(1) acquires or maintains an interest in, conceals, possesses, transfers, or transports the proceeds of criminal activity;

(2) conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity;

(3) invests, expends, or receives, or offers to invest, expend, or receive, the proceeds of criminal activity or funds that the person believes are the proceeds of criminal activity; or

(4) finances or invests or intends to finance or invest funds that the person believes are intended to further the commission of criminal activity.

(a-1) Knowledge of the specific nature of the criminal activity giving rise to the proceeds is not required to establish a culpable mental state under this section.

(b) For purposes of this section, a person is presumed to believe that funds are the proceeds of or are intended to further the commission of criminal activity if a peace officer or a person acting at the direction of a peace officer represents to the person that the funds are proceeds of or are intended to further the commission of criminal activity, as applicable, regardless of whether the peace officer or person acting at the peace officer’s direction discloses the person’s status as a peace officer or that the person is acting at the direction of a peace officer.

(c) It is a defense to prosecution under this section that the person acted with intent to facilitate the lawful seizure, forfeiture, or disposition of funds or other legitimate law enforcement purpose pursuant to the laws of this state or the United States.

(d) It is a defense to prosecution under this section that the transaction was necessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment of the United States Constitution and by Article 1, Section 10, of the Texas Constitution or that the funds were received as bona fide legal fees by a licensed attorney and at the time of their receipt, the attorney did not have actual knowledge that the funds were derived from criminal activity.

. . .

Without reviewing the trial transcript with a fine toothed comb it is impossible to say whether the prosecution met its burden. But there are certainly some sections that do not apply. ² Furthermore the appellate court will have to look at the historical record to determine if it was the intent of the legislature to outlaw the type of activity carried out by DeLay. for example did the legislature consider corporate donations to election campaigns to be “criminal activity.”

But Judge Priest handled it wisely. By sending him to prison on the conspiracy charge, which is stronger than the money laundering charge, he seems to insure that DeLay will eventually spend some time in prison

Wesley Lanham and Shawn Freeman were corrections officers at the Grant County, Kentucky, Detention Center on February 14, 2003 when a deputy brought “J. S” into the jail on a traffic charge. “J. S.” was 18 years old, six foot tall and weighed 125 pounds. He has blond highlights in his hair and on that Valentines Day holiday he wore a bright colored shirt and underwear with red hearts.

Sergeant Shawn Sydnor the supervising officer on duty at the jail told “J. S.” that he was cute and that he would make a good girlfriend for an inmate. He told Lanham and Freeman that “J. S.” needed to be scared. While pretrial arrestees were generally kept in the detox cells Sydnor asked Lanham and Freeman to find a cell in general population with convicted criminal serving their terms for “J. S.” Lanham found him a place in Cell 101 in 26 Hall. Twenty-six Hall was notorious for being a very rough place and for numerous incidents of sexual predatory behavior. Prior to placing “J. S.” in cell 101 Lanham and Freemen went to the cell and spoke with Bobby Wright. Lanham told Wright that they wanted the inmates to f-ck with “J. S.” Lanham and Freeman took “J. S.” to the cell and left hem there all night without checking in on him. Victor Zipp an inmate in the cell with a reputation for walking around nude raped “J. S.” and with help from other inmates roughed him up.

The next day Syndor, Lanham and Freeman agreed to report that they had placed “J. S.” in the general population because they needed to decontaminate the detox cells.

“J. S.” was released the next day and two days later his father took him to a doctor who confirmed the rape.

Lanham, Freeman and Sydnor were indicted. Sydnor plead guilty and cooperated with the prosecution. Lanham and Freeman went to trial and were convicted of conspiring to violate “J. S.’” civil rights and making a false report.

The Sixth Circuit Court of Appeals upheld the conviction. They found that while the judge should have excluded two jurors who could not promise to be impartial the defendants were not prejudiced since they used peremptory challenges to exclude the two. The Court did not find that the lack of two of the defense’s peremptory challenges affected the trial.

The defendants objected to limitations placed on their cross examination of Sydnor. But since they did not complain at trial they were limited to plain error analysis and since various appellate courts are divided on the issue any error is waived under the plain error analysis. “To obtain a conviction for conspiracy to violate civil rights under § 241, the government must prove that defendants knowingly agreed with another person to injure the victim in the exercise of a right guaranteed under the Constitution. . . The government also must prove beyond a reasonable doubt that there was specific intent to commit the deprivation.” The prosecution met the sufficiency of the evidence test. There was sufficient evidence that Syndor, Lapham and Freeman agreed to place “J. S.” in a cell knowing that he was likely to be abused and raped. To meet the sufficiency of the evidence test ir is only necessary that there be sufficient evidence that any rational trier of the fact could find the elements of the offense. Here there was sufficient evidence of both conspiracy and making a false report. As a result the conviction was upheld.

In a multi-defendant prosecution for bank fraud the government informed the defendants that it planned to use statements made by co-conspirators, but not to call them as witnesses. The statements would come into evidence under an exception to the hearsay rule which allows the admission of statements made during the pendency and in furtherance of a conspiracy.

The defendants requested the complete notes taken during the proffers of those co-conspirators who’s statements the prosecution planned to use during trial. The trial court refused their request.

The Second Circuit upheld the ruling in United States v. Shyne et al. Under the Jencks Act which governs discovery of statements made by witnesses in a Federal criminal trial the government is required to provide statements made by a witness after the witness testifies but before cross examination. The Second Circuit held that since the Jencks Act does not mention non-testifying witnesses the proffers of the non-testifying co-conspirators is not discoverable.

But the Jencks Act is not the end of the question. Constitutional mandates trump the Jencks Act. The appellants raised Fifth and Sixth Amendment objections and of course the biggest exception to the Jencks Act is the Supreme Court Decision in Brady v. Maryland. In Brady the court ruled that due process requires the prosecution to provide the defense with mitigating evidence in the possession of the prosecution. The prosecution provided the defense with a letter listing the various mitigating factors for each of the co-conspirators. Assuming that the letter provides all the needed information, it does not help the defendants get the information into evidence.

The court did not discuss Rule 106 of the Rules of Evidence which states:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

How can a defendant move to admit the entire statement or know whether or not an entire statement has been entered if he/she is not given discovery of the entire proffer which is in the possession of the prosecutor?

Is the Sixth Amendment requirement of a fair trial met if the prosecutor has the entire proffer while the defense only has a summary of those parts the prosecutor wants to give him/her?