Feeds:
Posts
Comments

Archive for May, 2009

Twitter Interview

On Tuesday, May 26, 2009, Lance Godard (@lancegodard) of the Godard Group interviewed me regarding my experiences as attorney through his innovative 22 Tweets (@22twts).  It was a pleasure and an honor to be included.  For the full interview, click here.

Advertisements

Read Full Post »

United States v. Tom, No. 08-2345.

In 1997, Roger Dean Tom pled guilty to one count of illegally crossing state lines with intent to engage in a sexual act with a minor.  Tom was sentenced to 120 months in prison and 60 months of supervised release.  Two days prior to his release, the United States initiated civil commitment proceedings against Tom under 18 U.S.C. § 4248 of the Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”). 

Under § 4248, Tom was entitled to a hearing to determine whether clear and convincing evidence existed that he was a sexually dangerous person, who, because of a mental illness, abnormality, or disorder, would have serious difficulty in refraining from sexually violent conduct or child molestation if released.  Prior to the hearing, Tom moved to dismiss the proceeding, arguing that § 4248 was unconstitutional.  The trial court agreed, holding that § 4248 exceeded Congress’s authority under the Commerce Clause and the Necessary and Proper Clause.

On appeal, the Eighth Circuit Court of Appeals noted that, through its Commerce Clause authority, “Congress may forbid or punish [the] use of interstate commerce ‘as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin.'” 

Because Tom conceded he was convicted under a federal statute that was appropriately enacted under Congress’s Commerce Clause power (transporting a minor across state lines with intent to engage in a sexual act), the court turned its attention to whether § 4248 comported with Congress’s authority under the Necessary and Proper Clause, which requires a showing that § 4248 is a rational and appropriate means to effectuate legislation authorized by the Constitution and that § 4248 is consistent with the letter and spirit of the Constitution.  The court held that providing for civil commitment of persons under the circumstances was necessary and proper to the functioning of federal criminal laws.  Without such means, the power to prosecute or punish could be defeated or the opportunity to prevent a federal crime could be lost.  The court then noted that § 4248 did not infringe upon the Tenth Amendment as the provision was a “stop gap” provision designed to guarantee that sexual predators do not enter into the general population merely because they are in federal rather than state custody.  Accordingly, the court reversed the trial court’s ruling of unconstitutionality and re-instituted civil commitment proceedings against Tom.

Read Full Post »

Gene Cauley, an Arkansas attorney, was one of the lead plaintiff’s attorneys in a securities lawsuit against BISYS Group, Inc., an insurance company, that Cauley alleged inflated its stock value by issuing false and misleading press releases and financial filings.  The parties settled the lawsuit in 2006 for $65.8 million.  Cauley was the sole signatory of an account created to hold the settlement money.  Last month, Cauley informed his co-counsel that he could not produce $9.3 million of the settlement funds that were supposed to be distributed to the plaintiffs. 

New York federal judge Jed Rakoff held a hearing regarding the missing funds.  At the hearing, Cauley was represented by criminal lawyer, John Wesley Hall, who informed the court that the money was not “presently available,” but would not elaborate based on Cauley’s privilege against self-incrimination.  Hall has noted, however, that Cauley intends to produce the money within 90 days. 

For the full story, click here.

Read Full Post »

This case involved a motor vehicle collision between a motorcycle, driven by Scott Keener, and a truck, driven by Hector Solis.  At the time of the collision, Solis was employed by Jeld-Wen Inc.  Keener died in the accident.  At trial, the jury found in favor of Keener.  The judge polled the jury regarding the percentages of negligence between the two drivers, but missed polling Juror No. 7.  Several days later, attorneys for Jeld-Wen recognized the oversight and moved for a new trial.  The trial court denied the motion.  On appeal, the California Supreme Court held that Jeld-Wen’s failure to object to the irregularity before the jury was discharged forfeited its claims of irregularity in the polling procedure.  For the full story, click here.

Read Full Post »

The Court of Federal Claims awarded $590,755.06to Lavetta Elk, an Oglala Sioux woman, related to the unwanted sexual advances and sexual assault by Army recruiter Joseph Kopf.  Elk filed suit under Fort Laramie Treaty of April 29, 1868, which provided that the United States would reimburse Sioux members for “any wrong” committed by “bad men among the whites.”  The court found that Elk had suffered an considerable amount of pain and would likely consider more pain over the next few years.  For the full story, click here.

Read Full Post »

Two boys, Will Buckner (15 years old) and Josh Buckner (13 years old), shot .22-caliber rifles into traffic on Interstate 40.  The shots killed one person, Aaron Hamel, and injured another, Kimberly Bede.  The Buckners were insured by a homeowner’s insurance policy through Metropolitan Property and Casualty Insurance Company, who filed a complaint for declaratory judgment to determine whether it was liable under the policy.  The policy excluded coverage for “bodily injury or property damage which is reasonably expected or intended by you or which is a result of your intentional or criminal acts.”  The trial court found that coverage was not excluded by this provision.  On appeal, however, the Tennessee Court of Appeals noted that the boys shot their rifles intending to do some harm and stated, “The fact that they caused harm of a different nature and of a much greater degree than they intended, is irrelevant.”  For the full story, click here.

Read Full Post »

Maria Pintos parked her SUV, with expired registration, on the street.  Police had the vehicle towed, and it was eventually sold when Pintos failed to claim the vehicle or pay impound costs.  The towing company filed a deficiency claim against Pintos and then transferred the claim to Pacific Creditors Association (“PCA”), a collection agency.  PCA obtained a copy of Pintos’s credit report through Experian.

Pintos filed suit, alleging that PCA violated the Fair Credit Reporting Act.  PCA argued that it had pulled the credit report in order to collect on an account.  The trial court agreed and granted summary judgment to PCA.  Pintos appealed to the Ninth Circuit Court of Appeals, who reversed the trial court’s decision.  The court noted that mere ownership of a vehicle did not mean that Pintos had initiated a credit transaction.  Accordingly, no federal law granted PCA authority to obtain Pintos’s credit report.

For the full story, click here.

Read Full Post »