ADVERTISEMENTS

United States v. Davis, No. 08?1349 (6th Cir. Aug. 20, 2009)?panel of Judges Cole, Clay, and Cleland (E.D. Mich.). Defendant charged with being a felon in possession of a firearm. Went to trial. Objected to admission of 1) statement by unidentified woman to police officer that woman had seen defendant with a gun; and 2) similar statements made during a 911 call. Jury found defendant guilty. Defendant appealed several issues, including the issue of admission of this evidence.

Court found that unidentified woman?s statements were not offered to prove truth of their content. Rather, the statements explained why the police officer took the subsequent actions. 911-call statements were properly admitted as excited utterances and present sense impression.

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United States v. Shafer, No. 07?2574 (6th Cir. July 21, 2009)?panel of Judges Moore, White, and Tarnow (E.D. Mich.). Well, we heard about this case earlier this year. The panel, however, has withdrawn that earlier opinion, following the government?s petition for rehearing, and has issued a new opinion.

Court holds that "sexual contact," as defined in 18 U.S.C. § 2246(3), can include self-masturbation. This conclusion does not vary from that of the original opinion. The new aspects of the Court?s conclusions relate to the intent element of § 2246(3)?the intent to abuse, humiliate, harass, degrade, and/or arouse/gratify a person?s sexual desires.

This intent clause was not extensively briefed in the original round of briefing. Because of "extraordinary circumstances," such as the fact that this panel is the first to address § 2246(3) and the issue of self-masturbation, the fact that the decision could be a guide to other courts, the fact that the opinion was binding precedent, and the fact that the new argument raised for the first time in the petition for rehearing goes to the heart of the holding and was not intentionally omitted, the Court considered that new argument.

The government?s new argument was that the intent clause goes to the defendant?s intent?regardless of who does the actual touching, the victim or the defendant. The Court focused on the legislative history of the statute. The Court held that where the conduct involves the defendant causing the victim to self-masturbate courts should consider the intent of the defendant?not the victim.

Enhancement of the defendant?s sentence under U.S.S.G. Section 2G2.1(b)(2)(A) was proper. Sentence affirmed.

Judge Tarnow concurred, stressing the importance of legislative history.

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