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Ken Tableman Law Blog

SentencingTips - Federal Court - Disputed Drug Quantity

Can the district court use testimony of co-defendants from their guily pleas, before the grand jury, or in other trials to establish drug quantity, even though you and your client were not present to cross examine the witnesses?

Yes, provided the Court gives you advance notice before the sentencing.  Fed. R. Crim. P. 32(i)(1)(C); United States v. Bey, 384 Fed. Appx. 486 (6th Cir 2010).

If the Court uses this type of evidence without giving you advance notice, object and ask for a continuance so you can gather and present rebuttal evidence if the Court intends to use the evidence.  The right to meet and rebut adverse evidence comes from the right created in Fed. R. Crim. P. 32(i (1)(C) to comment on matters relating to the sentence.  Sometimes the Court will backtrack and disavow reliance on the information.  Remember, the Court must resolve disputed matters if they will affect the sentencing.  Fed. R. Crim. P. 32(i)(3).  The Court must make findings; it can't simply adopt the findings in the presentence report. United States v. Treadway, 328 F. 3d 878 (6th Cir. 2003).  The purpose of the rule is to make sure that the sentence is based on reliable facts found by the court itself.  Id.  Without proper fact finding the Court of Appeals will reverse the sentence and remand the case for resentencing, unless it finds that the error was harmless.

Grandville, MI attorney Pete Garthe faced this problem in a recent case, and objected to the Court's use of evidence from several co-defendants' guilty pleas.  The district court responded that it would not consider the evidence, and the issue of its drug quantity determination is now pending on appeal.  Mr. Garthe's objection is an example of good practice worth looking at.  See United States v. Sengmany, United States District Court W.D. Michigan No. 1:12-cr-273, Docket No. 176, Sentencing Transcript, pp.98-99 available at www.miwd.uscourts.gov.

This all assumes that you have disputed the drug quantity.  And, how to dispute facts at sentencing is a topic for another entry.

 

Buying real estate: What if the seller conceals a problem with the property?

In residential real estate transactions disputes often come up over the condition of the property.  The Seller Disclosure Act requires the seller to disclose the condition of the property.  If the sellers does not know or should not reasonably have known of a problem and it is not disclosed on the disclosure statement, the seller is not liable.  Buy-sell contracts often have "as-is" clauses.  These clauses put the risk on the buyer for defects in the property that could reasonably have been discovered on inspection.  A seller is still liable for "silent fraud" that took place before the buyer signed the "as-is" contract.  If a seller knows about a problem or defect, failing to disclose it gives the buyer a false impression, the seller intended that the buyer rely on the false impression, the buyer did relyon it and damages result the seller is liable.

That can be a lot to prove.  Your best bet as a buyer is to get an inspection by someone you hire, and to insist that the seller fix any problems disclosed or adjust the selling price.  If the seller is going to fix problems before closing, make sure you have a written agreement that spells out when it will be done, who will do it, and who will determine that it is properly done.  Don't close on your property unless and until you are satisfied that the seller has complied with the buy-sell agreement.

For information about my rates in real estate matters or to schedule an appointment, call or e-mail. 

My Neighbor Cut Down My Trees

You own land in the country.  What can you do if your neighbor cuts down trees on your property?  Michigan law gives you a remedy.  If you can show that your neighbor did not have probable cause to believe the trees were on his land, you can claim three times the actual damages.  What are your damages?  Trees have value in the landscape beyond firewood or lumber value.  An arborist can give an expert opinion of value.   To win your claim you will have to show that the trees were on your land, your neighbor cut them down, and what they were worth.  

My office handles this type of real estate related claim, as well as similar claims involving wrongful removal of sand, gravel, or other material.  

Appeals and How to Present Them

Appeals and How to Present Them

To get the right answer, you have to ask the right question.  When I take on an appeal I spend a great deal of time thinking about how best to present the important issues.  In a criminal appeal I am usually trying to reverse the conviction or vacate the sentence.  Not all issues will accomplish those goals.  Part of what I bring to an appeal is the experience to know how best to get results from the appeals court.

Here are some issues I have worked on in the past six weeks in two federal criminal appeals:

Was the 84-month above guidelines sentence unreasonable where it was based on matters already considered in the guideliens and based on clear errors of judgment by the district court?

Did the court improperly base the sentence on the defendant's national origen?

Should the court order the case assigned to a different judge on remand?

Did the court abuse its discretion when it allowed an FBI agent to give an opinion based only on looking at photographs that the defendant brandished a firearm?

Was evidence that DNA from the defendant matched DNA on the steering column of the getaway car and on a black stocking cap worn by another person, not the defendant, sufficient to support the jury's verdict that the defendant robbed the bank?

 

 

Farm Bill & Congress

Congress has or is about to pass the farm bill which include changes to the food stamp program. The Department of Agriculture works hard to find waste, fraud and abuse in the SNAP (food stamp) program.

Where there is a violation of the program, the Department often seeks large amounts of restitution, often based on estimates or statistical information. Getting a lawyer involved early in the process of investigation can make sure you are treated fairly.

Ken Tableman has experience in this area and can help.

Contact

Thank you for considering Kenneth P. Tableman, P.C. We look forward to beginning a relationship with you and earning your business. 

Telephone

+1-(616)-233-0455


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Grand Rapids, MI 49503