It’s all oxycodone to the court of appeals

To say that Jimmy Roger Lane was caught with the goods would be an understatement.

In one pants pocket he had 62 tablets of oxycodone , 17 tablets of hydrocodone and two plastic bags with a total of $4,128 in cash. In the other, he had $181 in cash and 28 tablets of Endocet, a combination of oxycodone and acetaminophen. In his garage, police found a plastic bottle with a dropper lid that contained 7.8 milliliters of liquid oxycodone.

Lane didn’t contest that he was guilty of one count of possessing oxycodone with intent to distribute it, but he was convicted of three counts on the theory that he had different types of the drug in three different locations.

That was a bit much for the Virginia Court of Appeals on Tuesday. The relevant double jeopardy inquiry is whether the defendant had a different intent for each stash, the court said in Lane v. Commonwealth. There was no evidence on that point and, “[w]ithout such evidence, we could only speculate as to whether location, packaging or different physical appearance would prove three separate intents,” the court said.

The question remains as to how much good a remand for resentencing on one count rather than three will do Lane. He did not appeal his conviction of four counts of distributing oxycodone.

He lost on the point that might have exonerated him on all the possession with intent counts. He contended that the search warrant that led to his arrest was defective because the only assertion in the affidavit as to an informant’s reliability was that he had “given information in the past that has led to the seizure of illegal narcotics.”

The court of appeals found that the “good faith” exception to the Fourth Amendment applied, although its analysis listed factors that appeared to go more to the observations alleged by the informant than to his reliability.

Dentist, guilty of fraud, still practicing

A federal jury in Abingdon on March 6 found Roy Shelburne, a Lee County dentist, guilty on 10 counts, including health-care fraud and racketeering. Sentencing is set for June.

The Bristol Herald Courier has reported he is still seeing patients and practicing dentistry.

U.S. Attorney John Brownlee wants to put a stop to that, and has filed a motion with U.S. District Judge James P. Jones.

This is one of those cases about what the meaning of is is.

An official at the Department of Health Professions says it can’t suspend Shelburne. The department got some legal advice, and it can act on a “conviction.” But the dentist has not been fully “convicted” yet; the conviction won’t be complete until the sentencing.

The Board of Dentistry can suspend a licensed member who poses a “substantial danger” to patients, but an official there declined to say whether it is investigating.

Kitten thief convicted of misdemeanor

A man who stole a kitten from the SPCA because he couldn’t afford the $100 adoption fee was convicted of a misdemeanor in Richmond General District Court on Tuesday. The judge gave Carlos Marshall a 12-month suspended sentence, fined him $250 and ordered him to do 100 hours of community service.

House Bill 334, a proposal to upgrade the theft of a cat to a felony, died in the 2008 General Assembly, and proponents said they will cite this case as support for the bill next year.

That measure bill now has a name. The kitten, who later was adopted by Chesterfield teenager, is named Ernie. In the 2009 Assembly, the felony cat-theft proposal will be “Ernie’s Bill.”

The Richmond Times-Dispatch has details.

Criminal cases divide court

The Supreme Court of Virginia split sharply today in deciding three criminal cases – one affirming the procedure in state law for submitting certificates of analysis at trial, a second upholding admission of the items seized in a search under the “good faith” exception to the Fourth Amendment, and the third reversing a drug conviction that stemmed from the “plain feel” of capsules in the defendants pocket.

In Magruder v. Commonwealth, consolidating three cases, the court said the failure of the defendants to subpoena the technician who prepared the certificate amounted to a waiver of the constitutional right to confront the defendant articulated in Crawford v. Washington, 541 U.S. 36 (2004). The dissenters, Justice Barabara Milano Keenan, Chief Justice Leroy Rountree Hassell Sr. and Justice Lawrence L. Koontz Jr., responded that the waiver of a statutory right under Code § 19.2-187.1 could not be extended to a wavier of the Sixth Amendment right to confrontation.

In Adams v. Commonwealth, the same justices dissented to the court’s holding the “good faith” exception excused the failure to specify in the search warrant affidavit that the defendant lived in the house that was the subject of a search for a murder weapon. The affidavit was detailed in other respects, and it could be read without realizing that it did not mention that the defendant lived in the home, Justice Cynthia D. Kinser wrote for the majority.

The dissenters responded that the affidavit should have been seen as defective by any properly trained police officer because it did not mention any particular suspect or state any connection between the defendant. Justice Kinser also wrote the majority opinion in Magruder.

In Cost v. Commonwealth, Justice Koontz wrote that the “feel” of the capsules in a pat-down of a passenger in an automobile was not enough for a policeman to remove them from the defendant’s pocket. Justice Donald W. Lemons, joined by Justice Kinser, countered the “feel,” bolstered by the defendant’s furtive gesture toward the pocket and the policeman’s training, provided the probable cause required for the search of the defendant’s pocket.

One costly bowl of chili

A Roanoke general district judge has given 30 days in jail to a guy accused of ordering, then not paying for, a bowl of chili at the Texas Tavern.

The Texas Tavern is the only 24-hour restaurant in downtown Roanoke.

The tab for the chili was $1.66. The accused man, Charles B. Ogle, testified that he left $2 on the counter before leaving. A surveillance video shows Ogle angrily arguing with a Tavern employee after the incident.

But Judge Skip Burkart said the video could be of a guy wrongly accused or a guy upset that he got caught. Burkart gave Ogle 30 days, 26 suspended, on a misdemeanor charge of defrauding the restaurant.

The Roanoke Times reports that Ogle has appealed his conviction to circuit court. Stay tuned.

Supreme Court decides criminal cases

A Department of Motor Vehicles record that a defendant was notified of his habitual offender status by law enforcement did not establish that he received actual notice of his determination as an habitual offender, the Supreme Court of Virginia ruled today.

The DMV record entry, “Notified: 2001/03/10 by law enforcement,” “does not specify the content of any notification that may have been provided to [the defendant], and this entry does not identify the person, agency, or entity that constituted law enforcement,’ ” the court said.

Despite the reversal in Bishop v. Commonwealth, it was a good day for the Virginia Court of Appeals and the attorney general’s office. The high court upheld convictions in six other cases and reversed a grant of a new trial by a Norfolk Circuit judge granted in a widely publicized murder case. That contrasts with recent Supreme Court opinion days in which most decisions were in favor of criminal defendants.

In Wright v. Commonwealth, the court said a trial judge can impose additional terms of suspended incarceration and post-release supervision after accepting a plea agreement under Rule 3A:8(c)(1)(C).

In Malbrough v. Commonwealth, the court held that the trial judge properly ruled that a defendant consented to a search of his person after he was told that he was free to leave at the end of a traffic stop.

In Phelps v. Commonwealth, the court said the person endangered under a charge of felony eluding and endangerment under Code § 46.2-817(B) can be the defendant himself.

In Parker v. Commonwealth, the court affirmed a conviction for larceny under false pretenses of a man who sold fake ecstasy pills to an undercover police office.

In Glenn v. Commonwealth, the court agreed that a grandfather had the authority to allow the search of a backpack in the room of the house the grandson occupied.

In Bolden v. Commonwealth, the court upheld the conviction of constructive possession of a firearm that was found in a plastic bag in the seat that had been occupied by the driver of a vehicle. The trial judge also could infer that the presence of drugs in the car supported the finding that the defendant had dominion and control over the gun, the court said.

In the habeas case, Johnson v. Tice, the court rejected the trial judge’s finding that counsel for Derek Elliott Tice had been ineffective in failing to file a motion to suppress his confession. Tice is one of four defendants who pleaded guilty to the murder of Michelle Moore-Bosko in 1997. Four former Virginia attorneys general have questioned the validity of the convictions, citing inconsistencies in the confessions and DNA evidence the implicates a fifth suspect not charged in Moore-Bosko’s death but convicted of another rape.

Beware of EDGAR

Junior Johnson ran a software company called PurchasePro that was based in Las Vegas.

In 2001, PurchasePro, a publicly traded company, filed a Form 10-Q with the Securities & Exchange Commission, reporting its financial results for the first quarter of that year. The feds thought that the documents were false and misleading and contained inflated revenue figures, so they sought to indict Johnson for securities fraud.

Where did they seek venue? The Eastern District of Virginia, where the servers for the SEC’s Electronic Data Gathering, Analysis and Retrieval system are located.

Johnson wanted out of the Eastern District, conceding that venue might be proper in, say, the District of Columbia, where the SEC is located. But he wanted no part of the Eastern District, where they have the “rocket docket,” among other things.

A district judge bought the venue argument, but the 4th Circuit says that use of EDGAR makes venue permissible.

Although Johnson predicted direly that any defendant anywhere in the U.S. using EDGAR could be hauled to court in Alexandria, the 4th Circuit essentially said “Piff” to that argument: Venue might be permissible in the E.D., but not every prosecution will proceed there. And there are change-of-venue rules in the FRCrP that could help, too.

Despite those assurances, every SEC filer using EDGAR might want to be aware of U.S. v. Johnson.

Commission allows sentence reduction for crack

The U.S. Sentencing Commission decided this afternoon to make its reduction in the sentencing guidelines for crack cocaine retroactive.

That typically would mean a reduction of about five years for a 20-year sentence and about two years for a 10-year term, according to Rob Wagner, an assistant federal public defender in Richmond.

It also would have a greater impact on prisoners sentenced in the Eastern District of Virginia than anywhere else, he said. “We’ve consistently had the most crack cocaine cases of any district in the country.”

That is largely because many cases that typically would have been prosecuted in state court were handled in federal court under a program called Project Exile because of the harsher punishment available under federal law.

Under the old sentencing guidelines, a drug trafficker dealing crack cocaine was subject to the same sentence as one dealing in 100 times more powder cocaine. The commission lowered that disparity under regulations that took effect Nov. 1 by reducing the base offense level associated with each quantity of crack by two levels.

Congress could have intervened to maintain the disparity but did not do so.

Each of 19,500 defendants convicted of a crack cocaine offense would have to appear before a federal judge for a possible sentence reduction. The burden of so many hearings was one reason the U.S. Justice Department opposed retroactivity.

Opponents of the disparity between crack and powder cocaine long have pointed to its harsher effect on black defendants. Eighty-six percent of crack defendants are black, compared with just over a quarter of defendants convicted of powder cocaine.

The commission’s decision came a day after the U.S. Supreme Court ruled that a federal judge properly considered the disparity in sentencing a crack defendant to a term below the guidelines.

Supreme Court: Sentencing guidelines on crack advisory

The U.S. Supreme Court yesterday ruled that federal judges are note required to follow sentencing guidelines that permit harsher penalties for crack cocaine crimes than powder cocaine. In a case from Norfolk, the court, 7-2, reinforced the view that the federal sentencing guidelines are merely advisory rather than mandatory. Lawyers USA has the story.

Chief justice’s son sentenced to 16 months

Leroy R. Hassell Jr. not only failed to complete the 200 hours of community service imposed as part of convictions for embezzlement, unlawful entry and trespassing, he forged documents saying that he had.

As a result, Henrico Circuit Judge L.A. Harris jr. sentenced him yesterday to 16 months in jail, part of it for forging community service time sheets and the rest for violating the terms of probation on the petit larceny and unlawful entry counts.

Those charges were reduced from burglary and grand larceny in an incident at a Henrico home that involved two other young men. He was charged later with embezzling from a Target store where he worked during the 2005 Christmas season.

He was assigned to perform community service work at the Henrico landfill but worked only five hours there before he forged documents reporting that he had put in substantially more time.

He turned himself on Sept. 14 after he was indicted on the forgery charges and chose to remain in jail to begin serving the expected jail time rather than post bond.

The Richmond Times-Dispatch has more details.

Embracery charges against lawyer dismissed

A circuit judge yesterday dismissed embracery charges against a Charlottesville lawyer, reports The Daily Progress.

Deborah C. Wyatt has been accused of improperly attempting to influence a grand jury. In December 2004, she contacted members of a grand jury investigating whether to charge one of her clients, offering herself as a witness. Prosecutors charged her with embracery, a common-law offense.

But Judge William H. Ledbetter Jr. said it would be a “grave injustice” for the case to go to trial. He noted that her actions were out of the ordinary, but not illegal.

Attorney indicted on jury-tampering charges

Embracery? No, it doesn’t mean what you think. The word comes not from the Old French word for arm but from the Middle English word to set on fire or incite—as one might do when trying to influence a juror improperly.

The Daily Progress reports that Charlottesville attorney Deborah C. Wyatt is accused of doing just that in a case that dates back to December 2004. Wyatt is accused of embracery for contacting several members of a grand jury and offering to be a witness when it considered indicting a client on hit-and-run charges.

She wanted to say that the client had a history of seizures, but she was not called, and the client was indicted only to be acquitted later.

Wyatt was actually indicted on five misdemeanor counts of the common-law offense in June 2005, but the charges were sealed while the Virginia State Bar considered whether Wyatt violated legal ethics. The agency finally decided to defer any action until the criminal case was resolved.

Wyatt insists she did nothing wrong.

A good day for criminal defendants

The Supreme Court of Virginia reversed six decisions of the Virginia Court of Appeals today on issues ranging from restitution to the use of a penile plethysmograph test in a sentencing.

A penile plethysmograph attempts to measure the degree of a arousal to various sexual stimuli by measuring changes in the flow of blood to the penis. An attorney for a Tazewell youth convicted of forcible sodomy contended that use of the test in a risk assessment prior to sentencing was improper because it was comparable to a polygraph test and similarly unreliable under the law, and because the prosecution had presented no threshold finding of reliability. A divided panel of the court of appeals disagreed, but the Supreme Court reversed unanimously in Billips v. Commonwealth.

The court ruled in Howell v. Commonwealth that a trial judge had improperly made payment for installation of a security system part of the restitution for the burglary of a business. “Costs that result only indirectly from the offense, that are a step removed from the defendant’s conduct, are too remote and are inappropriate for a restitution payment,” the court said.

In the other cases, the Supreme Court:

● Ruled in Jackson v. Commonwealth that the phrase “under the influence of any narcotic drug or any other self-administered intoxicant” must be construed as a whole so that a defendant was improperly convicted of driving under the influence of the narcotic pain reliever Dilaudid after it had been given to him by an emergency room physician.

● Held in Meeks v. Commonwealth that the venue for credit card theft is “where the card or number is taken from its rightful owner or is received with knowledge that it has been taken with intent to use it, sell it, or transfer it.” The case explicitly overruled the possible interpretation of an earlier case that venue was proper in every jurisdiction where the thief had a card with intent to misuse it.

● Decided in Scott v. Commonwealth that the circumstances of nine robberies in Virginia Beach were not so similar that they constituted a common scheme or plan that permitted them to be presented in the same trial.

● Ruled in McGowan v. Commonwealth that “[t]he commonwealth cannot be allowed to essentially smuggle into evidence during its cross-examination of a defendant proof of another crime not admissible in its case in chief, which is not only highly inflammatory and misleading to a jury, but lacking in serious probative value as well.” Defendant, who was arrested with cocaine two months after the offense for which she was being tried, had testified that she wouldn’t know the drug if she saw it.

The Supreme Court did not hand down Jaynes v. Commonwealth, the most eagerly anticipated criminal case from its September argument session. Jaynes was the first defendant to be sentenced to prison for illegal spamming.

Congress has questions about Gen Re, ROA

The House Judiciary Committee has asked Paul J. McNulty what he knows about why the criminal investigation of General Reinsurance and an officer at Reciprocal of America were dropped earlier this year.

McNulty was the U.S. attorney for the Eastern District of Virginia during much of the investigation and had been elevated to deputy attorney general in the U.S. before the investigation was dropped. He is now a partner in the Washington office of Baker & McKenzie.

Corporate Crime Reporter has a long article about the investigation with a link to the letter the subcommittee sent McNulty in July. McNulty has asked for an extension of time to reply to the letter, which also includes questions about what Democrats allege to be political reasons for replacing some U.S. attorneys.

The CCR article credits Virginia Lawyers Weekly with publishing the first article about the apparent demise of the investigation.

Chesterfield judge upholds 'fees'

Yet another general district judge has upheld Virginia's new scheme of "civil remedial fees" for "abusive drivers." This time, the venue is Chesterfield County.

The Richmond Times-Dispatch reports that Chesterfield General District Judge Philip V. Daffron has ruled that the statute establishing the fees is constitutional. Turning back a challenge by five drivers, Daffron found that the General Assembly had a rational basis for passing the law.

The lawyer for one of the defendants said he may appeal the ruling.

Morva trial to be moved from Montgomery County

A circuit judge has ruled that the capital murder trial of William Morva, charged with killing two law enforcement officials, should be moved from Montgomery County, reports the Roanoke Times. A manhunt for Morva around Blacksburg briefly closed the Virginia Tech campus on the first day of classes of the 2006 school year.

The judge found that too many people in the jury pool had ties to the case, which touches a number of localities in the New River Valley and Tech.

It is the first case to be moved out of the county in nearly 30 years.

26 life terms

When the 11-year-old girl’s mother confronted her daughter about her suspicion that the girl’s stepfather had been abusing her, the girl at first denied it.

The mother took her for a medical examination anyway in July 2006. Not only was the stepfather’s DNA found inside the girl’s vagina, she was pregnant by him.

A Washington County jury took a very dim view of those facts at the end of a three-day trial on Wednesday. It recommended that Sixto Lopez Laines, 31, serve life in prison on each of 26 sexual assault counts—12 for sodomy and seven each for rape and object sexual penetration.

Heather Howard, the assistant commonwealth’s attorney who prosecuted the case, said Laines is an illegal immigrant who first entered the country from Mexico when he was 17. He and the girl’s mother had lived together in the county since 2001.

The assaults began in January 2004 and lasted for more than two years, Howard said. Most of them occurred while the mother was out of the home on errands, she said.

Former attorney sentenced

A former bankruptcy attorney was sentenced yesterday to a year and a day in prison for conspiracy to commit bank fraud.

Leslie W. Lickstein, 54, of Fairfax, was accused of preparing a false settlement statement in the sale of a property in Great Falls in July 2002.

As a result, Lehman Brothers Bank made a multimillion dollar home mortgage loan to a home buyer who was not creditworthy. The loan went into default, and the bank sold the property at a loss of $1.1 million. Lickstein was ordered to pay that amount in restitution.

Chuck Rosenberg, U.S. attorney for the Eastern District of Virginia, identified Lickstein as the first president of the Northern Virginia Bankruptcy Bar Association.

Lickstein’s license to practice law was suspended for five years in 2004 by the U.S. Bankruptcy Court in Alexandria and by the Virginia State Bar. He was found to have failed to disclose to the court a fact necessary to avoid assisting in a criminal or fraudulent act.

Former governor’s son pleads guilty

Lawrence D. Wilder Jr., son of the Richmond mayor and former governor, pleaded guilty today to two misdemeanor counts related to his role as treasurer of his father’s gubernatorial campaign fund.

Richmond Circuit Judge Walter W. Stout III sentenced Larry Wilder to 12 months in jail, suspended, on each of the counts and fined him $1,000.

The younger Wilder, 45, pleaded guilty in federal court in 2000 to a misdemeanor count of possession of cocaine. The fund, which at one time had about $172,000 after the 1989 election, had dwindled to a few thousand dollars by then. Larry Wilder acknowledged that he was addicted to cocaine from 1992 to 1999.

Under state law at the time—since amended largely because of the case—money in a campaign fund essentially belonged to the candidate, and he was free to do with it as he pleased, so long as it went to charitable or political purposes or the candidate paid taxes on money he used for personal purposes.

Taxes on the money were paid as part of the resolution of the federal case, and the Wilder family thought the matter was over, according to James W. Morris III, who represented Larry Wilder.

However, an internal audit performed by the Virginia Board of Elections in 2004 disclosed that no campaign finance report had been filed since Jan. 15, 1999. Paul Goldman, a former political confidant of the mayor, was named treasurer of the campaign and reported that only about $3,000 was left. Goldman disclaimed any knowledge of what might have happened to the money.

The board referred the matter to Commonwealth’s Attorney David M. Hicks in September 2005, who did nothing on it until Michael N. Herring replaced him the following January.

Herring said he asked for access to the federal investigation documents and finally received them this March. He had Chris Bullard, a top assistant, and Lynchburg Commonwealth’s Attorney Michael R. Doucette review those materials for possible prosecution.

Because Larry Wilder had authority to spend the money as treasurer of the fund, a felony theft charge could have been prosecuted only with testimony from his father that he had used it for an improper or illegal purpose, Herring said.

Herring said he used the possibility of the felony charge as leverage to get an acknowledgement of wrongdoing from Larry Wilder, which required the waiver of the statute of limitations for misdemeanor offenses.

“Any trial of this would have become protracted and ugly,” Herring said. With the resolution of the case, “I am relieved beyond all description, primarily because it used a disproportionate amount of time.”

Vick, three others indicted on dog fighting charges

Atlanta Falcons quarterback Michael Vick and three other men were indicted today in Richmond federal court on federal charges related to dog fighting.

U.S. Attorney Chuck Rosenberg announced the charges late in the afternoon.

Vick and the others are accused of running a dog fighting enterprise called “Bad Newz Kennels” on Vick’s Smithfield property from 2001 until April of this year. The indictments allege they engaged in dog fighting in other locales up and down the Atlantic coast as well.