United States v. Carter
United States Court of Appeals, Sixth Circuit.
236 F.3d 777
The more difficult question is whether the strength of the evidence against Poandl neutralizes the harm of the improper comments. The strength of the evidence of Poandl‘s guilt depended entirely on David Harper‘s credibility—the credibility of his claim that he went to Spencer, West Virginia, and his assertion that Poandl raped him. The government offered evidence to corroborate Harper‘s version of events. The Fredettes testified that a boy accompanied Poandl to Spencer. Poandl also admitted that he remembered taking Harper on a trip, although he denied that it was the trip to Spencer.
On the other hand, Poandl offered evidence that undermined Harper‘s version of events. Barbara‘s and David Harper‘s testimony that Poandl picked David up when it was sunny outside and before dinner does not square with the evidence that Poandl delivered a speech at 7:00 in the evening on August 3, 1991. David Harper never mentioned attending that speech before embarking on the trip to West Virginia. Poandl even provides evidence that Barbara Harper attended the event. Her “August 1991” letter to Poandl, thanking him for his speech, references details from the talk: “We are seriously considering your challenge to be pilgrims.” R. 94 at 40 (Def.Ex.94-D) (Page ID # 1245). Poandl‘s counsel also pointed to numerous inconsistencies in David Harper‘s story. Moreover, nobody could corroborate the sexual abuse—as is often the case with this type of crime.
Although jury verdicts are inherently opaque, one thing is clear: the jury believed David Harper. What we cannot determine, however, is whether the jury found him credible because they felt obligated to find Poandl guilty out of sympathy for David Harper, or anger at the Catholic church, or because they thought Poandl abused other boys, or out of fear that Poandl would abuse other children. For that reason, I cannot conclude that the cumulative weight of the evidence was so strong to be sure that the prosecutor‘s inflammatory remarks about other boys, the entreaty to the jury to show courage, the request to protect other children, and the violation of the Golden Rule did not affect the fairness or integrity of the proceedings. The government ignored its “duty to refrain from improper methods” and struck “foul blows.” Berger, 295 U.S. at 88, 55 S.Ct. 629. The prosecutor‘s closing remarks were so “exceptionally flagrant that [they] constitute[ ] plain error, and [are] grounds for reversal even if [Poandl] did not object....” Carter, 236 F.3d at 783. I dissent.
UNITED STATES of America, Plaintiff-Appellee, v. Joseph KEMMERLING, Defendant-Appellant.
No. 15-5092.
United States Court of Appeals, Sixth Circuit.
July 30, 2015.
OPINION
DANNY C. REEVES, District Judge.
Joseph Kemmerling pleaded guilty to one count of being a felon in possession of a firearm. He subsequently was sentenced to a term of imprisonment of 180 months under the Armed Career Criminal Act (“ACCA“).
I. BACKGROUND
On August 6, 2014, Joseph Kemmerling pleaded guilty to being a felon in possession of a firearm in violation of
This court has previously determined that convictions under
II. STANDARD OF REVIEW
This court reviews de novo a district court‘s determination regarding whether a prior conviction constitutes a “violent felony” under the ACCA. United States v. Hockenberry, 730 F.3d 645, 663 (6th Cir.2013).
III. DISCUSSION
A defendant is classified as an armed career criminal if he violates
any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]
In Mitchell, this court concluded that robbery as defined by the Tennessee statute qualifies as a violent felony. 743 F.3d at 1057. Under Tennessee law, “[r]obbery is the intentional or knowing theft of property from the person of another by violence or putting the person in fear.”
Mitchell did not stop there. We also determined that, under the categorical approach, robbery as defined by the Tennessee statute qualified as a violent felony under the residual clause as well. Id. at 1060-63 (holding that a conviction under
In his brief on appeal, Kemmerling asserted that a case pending before the Supreme Court at the time, Johnson v. United States, — U.S. —, 135 S.Ct. 1871, 134 S.Ct. 1871 (2014), may have called Mitchell‘s holding into question. He argued that the issues presented could have resulted in the Supreme Court finding the ACCA unconstitutionally vague. [Appellant Brief, p. 7] Notwithstanding Kemmerling‘s assertions, the entirety of the ACCA was not at risk in Johnson. The Supreme Court directed the parties to file supplemental briefs addressing only: “Whether the residual clause in the Armed Career Criminal Act of 1984,
While the Supreme Court‘s recent decision in Johnson held the residual clause of the ACCA to be unconstitutionally vague in violation of “the Constitution‘s guarantee of due process,” it did not affect the “use of physical force” clause. Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015) (“Today‘s decision does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the Act‘s definition of a violent felony.“) Thus, Mitchell‘s holding that
IV. CONCLUSION
We AFFIRM the judgment of the district court.
UNITED STATES of America, Plaintiff-Appellee, v. Jorge SANTOS, aka Jorge J. Santos, Defendant-Appellant.
No. 14-3900.
United States Court of Appeals, Sixth Circuit.
Aug. 10, 2015.