Should Anyone Care that Sexual Assault is “Out of Character” for Biden?

SHERRY F. COLB

Cornell law professor Sherry F. Colb considers what people mean when they say that a sexual assault allegation seems “out of character” for a particular person and explains why that reasoning is logically flawed. Focusing on differences between how people behave publicly and privately, Colb argues that the lack of an observed pattern of sexual misconduct is not evidence that a person did not engage in sexual misconduct on a specific occasion.

Read More

Moody v. United States

Docket: 19-5015

Opinion Date: May 6, 2020

Judge: Thapar

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

At Moody’s trial, the government produced a video of Moody cooking crack on his stove and waving a handgun while he mused about life in “the game” (drug trafficking). The court ruled that most of the video was admissible. Moody then tried to persuade the jury that the video was filmed more than five years before his indictment, putting it outside the statute of limitations. The jury convicted Moody. Due to prior felony drug convictions, Moody received enhanced, mandatory-minimum life sentences on several counts. He appealed on evidentiary grounds relating to the video. The Sixth Circuit affirmed. Later, Moody raised new claims on collateral review, 28 U.S.C. 2255. The district court found each claim meritless; most were also procedurally defaulted. The court authorized Moody to appeal. The Sixth Circuit dismissed the appeal, stating that none of the claims should have been certified. Reasonable jurists could not doubt that the district court properly denied relief on Moody’s claims that he was deprived of his statute-of-limitations defense (violating due process); that the past convictions for his sentencing enhancements were not charged in the indictment or found by the jury; and that his previous lawyers failed to raise the first two claims sooner, violating his right to effective assistance of counsel.

United States v. Smith

Docket: 19-1724

Opinion Date: May 6, 2020

Judge: Bush

Areas of Law: Criminal Law

In 2006, Smith was convicted of conspiracy to distribute and to possess with intent to distribute 500 grams or more of powder or 50 grams or more of cocaine base (crack cocaine); possession with intent to distribute 50 grams or more of cocaine base (crack cocaine); possession with intent to distribute 500 grams or more of cocaine powder; and being a felon in possession of a firearm. The court imposed a mandatory minimum life sentence. The Fair Sentencing Act subsequently lowered the penalty for cocaine-base offenses, made retroactive through the First Step Act. Smith moved for relief and received a reduced sentence of 360 months, the bottom of the new Guideline range for the counts impacted by the Fair Sentencing Act, to run concurrent to his existing 360-month sentence for his powder cocaine count that was not affected by the Fair Sentencing Act. The Sixth Circuit affirmed, rejecting an argument that the court should have imposed a below-Guideline sentence for all counts. The First Step Act is a limited grant of authority to impose a reduced sentence for certain offenses and does not require a plenary resentencing proceeding. Even assuming the court’s obligation to explain its reasons for imposing the modified sentence was akin to that which applies in initial sentencing, the court's use of a modified AO 247 form order to explain its decision was not procedurally unreasonable.

Lake Building Products, Inc. v. Secretary of Labor

Docket: 19-3212

Opinion Date: May 6, 2020

Judge: Raymond M. Kethledge

Areas of Law: Government & Administrative Law, Labor & Employment Law

Lake manufactures steel-framed buildings. In June 2016, in Akron, two Lake employees were working atop the steel frame of a partially completed building, 28 feet above the ground. The employees were wearing safety harnesses that, if anchored to the building, would prevent them from falling; they had chosen to remain unanchored while they worked with a crane to place bundles of steel decking. An OSHA compliance officer cited their failure to anchor their harnesses as a violation of OSHA’s fall-protection regulations. The on-site foreman disagreed, asserting that those workers were “connectors.” An ALJ upheld the citation, reasoning that the workers were only “placing” the decking bundles, rather than “placing and connecting” them, 29 C.F.R. 1926.751. OSHA’s regulations generally require ironworkers to use fall protection whenever working above a height of 15 feet, but there is an exception to that rule for “connectors,” who are specially trained to work with incoming loads from hoisting equipment and need to remain unencumbered to escape collapses and incoming steel. A “connector,” is defined as “an employee who, working with hoisting equipment, is placing and connecting structural members and/or components.” The Sixth Circuit granted Lake’s petition for review. The court agreed with the Commission’s interpretation of the regulation but concluded on this record that Lake lacked fair notice of that interpretation.