Is It Mandatory To Have Nine U.S.Supreme Court Justices ?

Just the other day someone asked me if the U.S. Constitution requires nine Supreme Court Justices. I did not know the answer so I looked it up. The short answer is the U.S. Constitution does not state the precise number of justices. The constitution gave Congress the power to decide the number of justice. Since The Judiciary Act of 1869, the number has been set at nine with no change. Is the Senate violating the Judiciary Act of 1869 by not acting on the vacancy created by Justice Scalia's passing ? Is there a time limit or can the senate refuse to act on the vacancy ? I guess I will read the act in the next few days.

Justice Isn't Blind

My Dad often said that "those that have the capital don't get the punishment." Boy, he is still right on the money. Nashville Dr.Eddie Hamilton pleaded guilty last week of  to a misdemeanor heath care fraud charge. It seems the good doctor was billing Tenn Care and insurance companies for procedures he never performed. Dr. .Hamilton never even owned the machines that he said performed the tests. He over billed hundreds of thousands of dollars. It was more like theft. He paid 1.6 million dollars. In the same week , a banker pleaded guilty to a bank fraud case and was ordered to serve 21 months and pay restitution back once released.

Contrast  these cases where someone shoplifts less that $500.00 in Sumner County or Williamson County where they usually are sentenced to jail for a period of time. Shoplifting is a theft crime. Theft under $500.00 is a misdemeanor. Poor people who might be forced to shoplift which is wrong get punished harsher than someone who defrauds taxpayers in the hundreds of thousands. Does it seem right of fair. Why did the government let a person who admitted to health care fraud not go to jail ?  At least the banker got some time for his actions.


The point of the post is the little guy has to pay for his crimes while the white collar guys go free.

Racial Bias During Jury Selection

The case of a former FBI agent convicted of wire and bankruptcy fraud is being remanded to the Federal District Court here in Nashville to make a ruling on racial bias during jury selection. Darin McAllister was convicted in 2010. However , the prosecutor used two of his peremptory challenges to excuse to black jurors. The first juror was excused because of a criminal conviction. In the case of the second black juror that was excused , the court did not make any findings of as to whether McAllister established the existence of purposeful race discrimination in the selection of his jury.


In Batson v. Kentucky, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment guarantees the defendant that the state will not exclude members of the defendant's race from the jury venire on account of race, or on the false assumption that members of the defendant's race , as a group are not qualified to serve as jurors.

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Sentencing Guidelines in Firearm Cases

I attended an advanced sentencing guidelines training course today sponsored by the Federal Public Defender here in Nashville . It was a great program and thanks to the office for hosting the program. Here is a video on firearms sentencing that may be helpful. It was produced by the U.S. Sentencing Commission. I hope the video is helpful.

Inmate Calls To Lawyers Protected


One of the most basic ethical rules for lawyers is the attorney client privilege . It can not be violated by a any lawyer . Yet , the U.S. Attorney's  in Nashville  office broke that rule while prosecuting a sex trafficking ring . It appears the U.S. Attorney's Office  intercepted over 300 private phone calls from inmates or those accused of a crime to their criminal defense attorney.

One tactic that prosecutors both in federal court and state court here in Nashville love to use is to listen in on calls from jail. They are hoping to get more evidence or catch some confessing to the crime .Note to those that might end in in jail or their families . Don't discuss your case on a jailhouse telephone

Judge William Haynes ruled that the jail's recording of attorney-inmate calls is "a serious threat to constitutional rights". U.S. Attorneys had turned over 300 client telephone calls of criminal defense attorney Patrick Frogge.

The Davidson County Sheriff's Office did not comment on the court's order or their phone recording policy .

The court found that since the sheriff''s office has a policy of blocking some telephone calls from being recorded or listened in on if they knew the the phone number belonged to an attorney .

U.S. Attorney has not commented yet if his office intends to appeal Judge Haynes' decision.

How to Get Out of Federal Prison

How do you get out of a federal prison after being sentenced to life for participating in 11 murders ? You snitch. Salvatore Vitale was convicted in 2003 of racketeering , murder in aid of racketeering , and admitted to being involved in over 11 murders. Yesterday , a New York federal judge released him from prison and was given a time served sentence. How did he escape a life sentence ?

Mr Vitale testified against his former cronies in the Bonnanno crime family. Mr. Vitale was the key person who brought down several of the members of the crime organization over a series of trials.Vitale told prosecutors of arson , burglary, hijacking, money laundering , and a host of other crimes since his incarceration. In exchange , prosecutors filed a motion in federal court to reward him for his help.Mr. Vitale took advantage of a rule in the Federal Sentencing Guidelines that allows a departure in sentencing. Under the Federal Sentencing Guidelines , the government can file a 5K.1 motion for a departure from his sentence for helping criminal prosecutions. Mr. Vitale took advantage of that get out of jail free card by testifying in six trials over the years.

The government asked the court to release a confessed murderer which the court granted the motion.Mr.Vitale will resume life in the free world soon.

Here is what the law is on a 5k departure;





§5K1.1.      Substantial Assistance to Authorities (Policy Statement)


Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.


                   (a)       The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:


                               (1)       the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;


                               (2)       the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;


                               (3)       the nature and extent of the defendant’s assistance;


                               (4)       any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;


                               (5)       the timeliness of the defendant’s assistance.


Cheating Scandal at the FBI

FBI Director Robert Mueller has disclosed to Congress that FBI Special Agents have been cheating on tests. Agents are required to take a test on how to conduct surveillance and open  files and criminal investigations on citizens. The purpose is to make sure the FBI agents know the law to make sure they do their job right. It appears the agents cheated on the test. I guess they don't have an honor code or it implicates the FBI agents may bend the law or their testimony when it benefits the agent.

Asked about an  Associated Press report about the cheating investigation, Mueller said he does not know how widespread the problem was.

"I've got a general idea, but I do not know how many," Mueller testified. "And I am not certain the IG knows how many either. He has pointed out instances orally to me where there may be persons in a particular office where it was widespread and may be attributable to a lack of understanding and confusion about the procedures."

Here's a copy from the Office of the Inspector General on the cheating.  I an agent cheats to pass a test what else are they capable of doing. I am in search of an honest man.



Today , I am going to the Tennessee Association of Criminal Defense Lawyers continuing legal education seminar. Marica Shein is presenting on a sentencing issues in Federal criminal cases.

I am going to try something new today. I will be posting updates from the seminar on Twitter. Heres the link to my Twitter feed.

Jail Credits When State and Federal Systems Collide

This week I had the opportunity to attend a lecture hosted by the Federal Public Defenders Office for the U.S District Court here in Nashville.First, I would like to thank the folks that presented and sponsored the topic.The lecture focused on the " Interaction of Federal and State Sentences When the Federal Defendant is Under State Primary Jurisdiction". The focus of the discussion was based upon an article written by Henry Sadowski,Regional Counsel Northwest Region,Federal Bureau of Prisons. A complete copy of the article can be read here.

Here are my takeaways from the talk;

1.In any computation of a federal sentence,two separate decisions must be made:when the federal sentence commences and to what extent the defendant can receive credit for time spent in custody prior to commencement of the sentence.

2.The Federal Bureau of Prisons has been delegated to compute the sentence.The court nor anyone else can compute the sentence.

3.A federal sentence does not begin to run until the state authorities relinquish the prisoner on satisfaction of the state obligations.

4.The general rule is no credit is afforded towards a federal sentence if credit has been given for the same period of custody towards a state sentence.

5.The general rule is that the sentence imposed by the sovereign with primary jurisdiction is served first.

6.The primary custodian is responsible for the custody of the defendant until primary jurisdiction is relinquished.

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