High Speed Chase, Shots Fired, No Excessive Force?

A High Speed Chase with Shots Fired is not Excessive Force?

Justice Alito

Donald Rickard led police officers on a high-speed car chase that came to a temporary halt when Rickard spun out into a parking lot. Rickard resumed maneuvering his car, and as he continued to use the accelerator even though his bumper was flush against a patrol car, an officer fired three shots into Rickard’s car. Rickard managed to drive away, almost hitting an officer in the process. Officers fired 12 more shots as Rickard sped away, striking him and his passenger, both of whom died from some combination of gunshot wounds and injuries suffered when the car eventually crashed. Respondent, Rickard’s minor daughter, filed a 42 U. S. C. §1983 action, alleging that the officers used excessive force in violation of the Fourth and Fourteenth Amendments. The District Court denied the officers’ motion for summary judgment based on qualified immunity, holding that their conduct violated the Fourth Amendment and was contrary to clearly established law at the time in question. After finding that it had appellate jurisdiction, the Sixth Circuit held that the officers’ conduct violated the Fourth Amendment. It affirmed the District Court’s order, suggesting that it agreed that the officers violated clearly established law.

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Combined Drug Toxicity – U. S. Supreme Court

Combined Drug Toxicity and the Supreme Court

Our Supreme Court has held the language of a federal sentencing guideline enhancement, which is identical to the Pennsylvania statute, requires a “but for” analysis in order to apply the guideline.  This means that the drug delivered must be the actual and only cause of death, not a “contributing” or “substantial” factor.  It held that it doesn’t matter if the death more likely than not, if there is no expert testimony that indicates it was the only cause of death.  Allegheny County will not charge this section of the Crimes Code for many reasons, but not our Supreme Court has placed further restrictions on its application.  Burrage v. United States

At the Preliminary Hearing, Steven C. Townsend, learns that the coroner, Mr. Wecht, found that the death was a result of “combined drug toxicity”, Heroin and Topamax.


Two people who were arrested earlier this year on charges of providing the heroin that killed a 24-year-old Delmont man in February and then removing syringes and other evidence from the house faced a judge Tuesday.

Ryan Robert Paul, 25, of Murrysville, allegedly sold heroin to Joshua Perne on Feb. 15, according to an affidavit of probable cause.

Through a review of Perne’s cellphone calls and text messages, police learned that Lisa Lynn Kaciubij, 39, of Delmont, contributed money toward the purchase.

Paul and Kaciubij face charges of drug delivery resulting in death and tampering with evidence.

Paul allegedly delivered the heroin to Kaciubij’s home and left. When Kaciubij found Perne unconscious, she made two calls to Paul. He returned and helped her remove four syringes and several empty stamp bags that contained the heroin, according to the affidavit.

Later that day, an undercover task force agent purchased heroin from Paul. He was arrested and admitted to selling the heroin to Perne and helping to remove the evidence, according to the complaint.

Channel 11’s Joe Holden reported Tuesday that all charges were held for trial.

Quick Facts – Drug Charges

Drug Charges – Quick Facts: Number of Americans incarcerated in 2012 in federal, state and local prisons and jails: 2,228,400 or 1 in every 108 adults, the highest incarceration rate in the world. Tax revenue that drug legalization would yield annually, if currently-illegal drugs were taxed at rates comparable to those on alcohol and tobacco: $46.7 billion


Drug Charges



Drug Charges



Franklin Regional High School Hero

Now this is a great Franklin Regional story.  I recently had a conversation with a colleague of mine and we we discussing the type of young men and women who are joining our armed services.  As a Pittsburgh criminal defense attorney, I have seen a lot of less than stellar candidates join or attempt to join the force with the hope they can avoid criminal prosecution.  To see this young man, Zachary Fleischauer, joining our country’s finest military gives reassures me that we are still the best country in the world.  What an American hero!


Army lauds reservist who gave first aid to fellow Franklin Regional students

Franklin Regional
Brig. Gen. Bud R. Jameson Jr. presents the Army Achievement Medal to Pfc. Zachary Fleischauer, 18, a senior at Franklin Regional High School, during a ceremony Sunday, May 18, 2014, at the 316th Sustainment Command (Expeditionary) in Coraopolis. Fleischauer was at school on April 9 and used his Army training to render first aid to fellow students who were stabbed.

By Renatta Signorini

Published: Sunday, May 18, 2014, 11:00 p.m.
Updated 11 hours ago

With a brand new medal on his chest, Zachary Fleischauer stood motionless and straight-faced on Sunday morning as fellow soldiers applauded and hollered.

The Franklin Regional senior was humble about the Army recognition.

“I honestly don’t think I should get this,” said Fleischauer, 18.

It was his immediate response on the morning of April 9 at his high school that earned him the Army Achievement Medal. Fleischauer, a private first class, used his military first aid training to help treat the stab wounds of several fellow students. A sophomore, authorities say, brought two knives to school and went on a rampage in a first-floor hallway before classes began, injuring 20 students and a security guard.

Fleischauer received the medal at the beginning of a retirement ceremony for six soldiers at the Army Reserve 316th Sustainment Command (Expeditionary) based in Moon.

Brig. Gen. Bud R. Jameson Jr. said it was “entirely fitting” to honor Fleischauer at the start of his military career and others retiring in the same ceremony. Jameson is the commander of the unit.

Fleischauer was at school, early as usual, on April 9 when he heard screaming and then a fire alarm. He tended to a male student’s stab wound outside the school with first aid supplies provided by fellow senior Alex Pasculle, who is an emergency medical technician with Murrysville Medic One.

Fleischauer said he patched the student up “as best I could” until ambulances arrived. Afterward, he helped three more injured students and calmed them until paramedics got to the school.

Fleischauer called his response “human nature.”

“I’m glad I was there. I’m glad I had that training,” he said.

The training occurred last summer before his senior year at Fort Benning, Ga. Fleischauer committed to the Army in January 2013 — “best choice of my life,” he said — and completed basic training.

He will have more training this summer and fall before taking on active duty this year.

Pasculle said he is proud of his classmate. Pasculle and Fleischauer worked together at the school to triage and treat injured students, along with other classmates and faculty members.

“He is an awesome kid with an amazing future and did such a good job,” Pasculle said. “He’s really passionate about what he does. I’m glad he got the recognition.”

Col. John Dowling said Fleischauer was deserving of the honor, something “not too many” 18-year-old Army soldiers have pinned to their uniforms.

“He proved to be an adult and mature that day,” Dowling said. “He’s an asset to the Army Reserve.”

“The first aid and ‘buddy care’ he provided that day were heroic,” Dowling said. “We teach people how to perform amidst chaos, so it all made sense.”

Renatta Signorini is a staff writer for Trib Total Media. She can be reached at 724-837-5374 or rsignorini@tribweb.com.

Defendant in W.Va. fatal heroin death to get sentence reduced

Heroin Death by Overdose.  The Defendant will get a new sentence.

Torsten Ove: tove@post-gazette.com

A U.S. Supreme Court decision that struck down a 1980s-era weapon in the war on drugs means a West Virginia man likely will see his pending 12-year prison sentence cut in half.

Justin Withers, 29, admitted that he supplied heroin to a Pennsylvania native who died of an overdose at a Pittsburgh hospital in 2011.

His lawyer and federal prosecutors in Wheeling last week agreed to alter his plea to reduce his sentence because the government can’t prove the heroin alone killed the man.

The victim, James Hayes III, 22, a Waynesburg native living in West Virginia, also had ingested oxycodone and was “high as a kite” when he injected the heroin, Mr. Withers’ lawyer said.

Under the 1986 law that prosecutors used to indict Mr. Withers, prosecutors had only to show that the heroin was a “contributing cause” to Mr. Hayes’ death for Mr. Withers to receive a mandatory minimum 20-year sentence up to life behind bars.

But in January, the Supreme Court rejected that part of the law, ruling in an Iowa case that a dealer can receive that sentence only if prosecutors prove that the supplied drug was the one that killed the user. Most addicts use lots of different drugs, so the new burden is pretty high. The U.S. attorney’s office in Wheeling couldn’t meet it, so it struck a deal with Mr. Withers.

The 2013 indictment against him and a co-defendant, Curtis Adams, was the first time the law had been used in the northern district of West Virginia.

The northern panhandle of the state has been plagued by heroin overdoses in recent years and the state as a whole has the highest overdose rate in the United States.

In Mr. Withers’ case, the U.S. attorney’s office in January agreed to drop the original indictment and allow him to plead to a lesser offense of aiding and abetting in the distribution of heroin.

Prosecutors made that decision because they knew the Supreme Court was reviewing the Iowa case, Burrage v. United States.

Joshua Banka died after ingesting a cocktail of marijuana, OxyContin, prescription drugs and heroin. He bought the heroin from Marcus Burrage, who was convicted of causing the death and sentenced to the mandatory 20 years.

Medical experts said the heroin contributed to Mr. Banka’s death but could not determine to what extent the other drugs may have helped kill him.

Because of that, Mr. Burrage challenged his sentence and the Supreme Court agreed with his attorney.

Prosecutors said Mr. Withers’ sentence should be reduced to bring it in line with that of Mr. Adams, who is serving 60 months.

The judge has yet to accept the new plea.




Man fatally shot outside Art House in Homewood

By Karen Kane / Pittsburgh Post-Gazette

Just feet from where the chubby fingers of young, budding artists spill paint at a neighborhood art center in Homewood, blood was spilled Sunday morning.

Jeffrey P. Jackson, 38, of Verona was fatally shot shortly before 5:10 a.m. just outside the Art House center at 7743 Hamilton Ave., near Hale Street. The center was founded more than a year ago by Vanessa German, an artist and anti-violence activist who sent out a plaintive cry via Facebook less than a hour after the homicide: “I don’t know what to do. Please pray for us,” she wrote.

The sound of gunshots isn’t foreign in this neighborhood, said one 78-year-old resident who asked not to be named. But, she said, she has never heard them this close to home; never this close to an art center that attracts children with the promise of creativity and the encouragement of signs that read: “Believe,” “Love” and “Stop Shooting — We Love You.”

“I never experienced nothing like this in my life. Never. I looked out my window and there he was, a dead man laying in the street,” the woman said. A crowd of 10 or so people were on the scene, she said. “They was just looking. It was sad. And it’s Mother’s Day,” the mother of nine grown children said.

The Allegheny County medical examiner determined that Mr. Jackson died of multiple gunshot wounds to his trunk. He was pronounced dead at the scene.

Public safety spokeswoman Sonya Toler said Mr. Jackson was shot at least four times in the chest. She said officers responded to a report that a man was lying in the street, shot and not breathing. She said police were working to interview witnesses. A light-colored Camaro was seen leaving the scene, she said.

The senior citizen who was awakened from her sleep by the shots said she often hears the sounds of violence, but, “this time, I thought, ‘Oh, that sounds close. Too close.’ ” She stayed inside her home, she said, thinking of the mother who lost her son.

Ms. German, 38, described being awakened by shots and “screams to the heavens” by a woman who described Mr. Jackson as her boyfriend.

“It was terrible. I ran outside. She asked me if I could help him. I got a blanket but … there was no helping him,” Ms. German said. Ms. Toler would not say whether Mr. Jackson’s girlfriend was with him at the time of the shooting.

Ms. German noted that she wished she could say she was surprised by a fatal shooting happening outside the Art House — just two doors away from where she lives. But she said she’s not.

“The street has been feeling different. There’s been a hiked-up sense of activity. I have been telling the kids to keep their eyes open and watch out,” she said.

Does the incident make her rethink the need for an art center in the middle of a neighborhood where violence may be on the rise? No, she said, adding: “The kids who saw this today, what do they do with it? They need a place to create and to express themselves.”

Police have not released details of what precipitated the shooting. According to court records, Mr. Jackson has been charged with several crimes over almost two decades ranging from misdemeanor disorderly conduct and drug-related incidents to felony robbery.

Mortgage Fraud – 2 lawyers among 6 charged in $30M mortgage fraud conspiracy

Mortgage Fraud in the White Collar criminal division of the US Attorney’s Office is one of the busiest divisions and has been for the last several years.  No one is immune from prosecution, except maybe the banks.

Posted May 6, 2014 1:50 PM CDT
By Martha Neil

Two lawyers are among six defendants federally charged in what authorities say was a $30 million mortgage fraud carried out in the New York City area between 2003 and 2008.

All face a single count of conspiracy to commit mortgage fraud, Newsday reports. The charge carries a maximum prison term of 30 years, upon conviction.

The scheme worked by artificially inflating the prices of 19 homes on Long Island by up to 80 percent, the feds say. After agreeing to purchasing homes from innocent sellers at market prices, participants allegedly obtained loans based on inflated values and false claims concerning their own debts and assets. At closing, they allegedly shared the difference between the mortgaged amount and the actual purchase or sale price. Then, the feds say, they resold the mortgages, through an insider’s mortgage company, on the secondary market to banks and other investors at the inflated price, according to the Long Island Press and a press release from the U.S. Attorney for the Eastern District of New York.

Lenders lost millions when the Nassau County and Suffolk County homes went into foreclosure.

The accused ringleader, Aaron Wider, 50, is the owner of a Garden City mortgage company that obtained funding for transactions from other mortgage lenders. Attorney John Petiton, 68, of Garden City, is accused of orchestrating home resales at inflated prices. Attorney John Finger, 48, who practices in Mineola, is accused of concealing from lenders at closing the true price and distributing the difference between the mortgage amount and the purchase amount to insiders.

A real estate appraiser is also among the defendants. All are expected to appear in federal court in Central Islip on Tuesday and Wednesday, but the news articles don’t include any comment from them or their legal counsel.

“The conduct charged in the indictment is a prime example of the type of corrupt mortgage-lending practices that preceded the bursting of the real estate bubble, the loss of faith in securitized mortgage obligations, and the financial collapse of 2007 and 2008,” said U.S. Attorney Loretta Lynch in the release. “Instead of using their skills in banking, the law, and investing to assist individuals pursuing the American Dream, the defendants cooked up a sophisticated scheme that defrauded lenders and then fed toxic debt to the investigating public at large in the secondary mortgage market.”

Supreme Court ruling favors prayer at council meeting

By The Associated Press

Published: Monday, May 5, 2014, 12:42 p.m.
Updated 2 hours ago

WASHINGTON — Prayers that open town council meetings do not violate the Constitution even if they routinely stress Christianity, a divided Supreme Court ruled Monday.

The court said in 5-4 decision that the content of the prayers is not significant as long as they do not denigrate non-Christians or proselytize.

The ruling by the court’s conservative majority was a victory for the town of Greece, N.Y., outside of Rochester. The Obama administration sided with the town.

In 1983, the court upheld an opening prayer in the Nebraska legislature and said that prayer is part of the nation’s fabric, not a violation of the First Amendment. Monday’s ruling was consistent with the earlier one.

Justice Anthony Kennedy, writing for the majority, said the prayers are ceremonial and in keeping with the nation’s traditions.

“The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce nonbelievers,” Kennedy said.

Justice Elena Kagan, writing for the court’s four liberal justices, said, “I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality — the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”

Kagan said the case differs significantly from the 1983 decision because “Greece’s town meetings involve participation by ordinary citizens, and the invocations given — directly to those citizens — were predominantly sectarian in content.”

A federal appeals court in New York ruled that Greece violated the Constitution by opening nearly every meeting over an 11-year span with prayers that stressed Christianity.

From 1999 through 2007, and again from January 2009 through June 2010, every meeting was opened with a Christian-oriented invocation. In 2008, after residents Susan Galloway and Linda Stephens complained, four of 12 meetings were opened by non-Christians, including a Jewish layman, a Wiccan priestess and the chairman of the local Baha’i congregation.

A town employee each month selected clerics or lay people by using a local published guide of churches. The guide did not include non-Christian denominations, however. The appeals court found that religious institutions in the town of just under 100,000 people are primarily Christian, and even Galloway and Stephens testified they knew of no non-Christian places of worship there.

The two residents filed suit and a trial court ruled in the town’s favor, finding that the town did not intentionally exclude non-Christians. It also said that the content of the prayer was not an issue because there was no desire to proselytize or demean other faiths.

But a three-judge panel of the 2nd U.S. Circuit Court of Appeals said that even with the high court’s 1983 ruling, the practice of having one Christian prayer after another amounted to the town’s endorsement of Christianity.

Kennedy, however, said judges should not be involved in evaluating the content of prayer because it could lead to legislatures requiring “chaplains to redact the religious content from their message in order to make it acceptable for the public sphere.”

He added, “Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.”

Kennedy himself was the author an opinion in 1992 that held that a Christian prayer delivered at a high school graduation did violate the Constitution. The justice said Monday there are differences between the two situations, including the age of the audience and the fact that attendees at the council meeting may step out of the room if they do not like the prayer.

Kennedy and his four colleagues in the majority all are Catholic. They are: Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In her dissent, Kagan said the council meeting prayers are unlike those said to open sessions of Congress and state legislatures, where elected officials are the intended audience. In Greece, “the prayers there are directed squarely at the citizens,” she said. Kagan was joined by Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. Of the four, three are Jewish and Sotomayor is Catholic.

Kagan also noted what she described as the meetings’ intimate setting, with 10 or so people sitting in front of the town’s elected and top appointed officials. Children and teenagers are likely to be present, she said.
Read more: http://triblive.com/usworld/nation/6061266-74/court-town-prayer#ixzz30rsatjxe


Four Amendments: Supreme Court Amends Four Federal Rules of Evidence

The Supreme Court has approved four amendments to the Federal Rules of Evidence that will take effect on December 1, 2014 unless Congress takes another action. The Rules altered? Federal Rule of Evidence 801(d)(1)(B) and Federal Rules of Evidence 803(6), (7), and (8).

Federal Rule of Evidence 801(d)(1)(B) currently provides that a statement is not hearsay if it

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying

Under the amendmentFederal Rule of Evidence 801(d)(1)(B) will now provide that a statement is not hearsay if it

(B) is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground….

In other words, currently, the only way that a prior consistent statement can be introduced is if the opposing party claims that a witness’s trial testimony is a recent fabrication based upon a recent improper influence of motive. For example, the defense might claim that a witness for the prosecution is lying so that he would get the benefit of a favorable plea bargain. Or the prosecution might claim that a defense witness was bribed by the defendant.

No, however, any impeachment of a witness will allow for the admission of his prior consistent statement. Such impeachment could include: (1) pointing out the the witness has a bad memory; (2) calling an impeachment witness to testify that the witness has a reputation for dishonesty; and (3) impeaching a witness through a prior conviction.

Meanwhile, Federal Rules of Evidence 803(6), (7), and (8) currently create hearsay exceptions for

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

(8) Public Records. A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

The amendments to each of these Rules are less sweeping, with each relating to the last subsection of each Rule. Basically, the question that the amendments resolve relates the question of which party bears the burden of proving lack of trustworthiness. And, as the amendments make clear, it is the opponent that bears the burden of proof. Here are the amended final subsections of each Rule:

Federal Rules of Evidence 803(6):

(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Federal Rules of Evidence 803(7):

(C) the opponent does not show that the possible source of information or other indicate a lack of trustworthiness.

Federal Rules of Evidence 803(8):

(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

Divided Pa. Supreme Court OKs warrantless searches of cars

As of this week, police in Pennsylvania no longer have to secure a warrant to search your car.

A sharply-split state Supreme Court ensured that by ruling Tuesday that Pennsylvania will henceforth follow federal law that requires only that police officers have probable cause before searching vehicles.

Supreme Court justice Seamus P. McCafferyPennsylvania Supreme Court justice Seamus P. McCaffery. Read McCaffery’s profile.

 Previously, officers in the Keystone State generally were required to obtain warrants before searching a vehicle unless the car’s owner gave consent for a search.

The decision to adopt the federal approach came on a 4-2 decision, with Chief Justice Ronald D. Castille, and Justices J. Michael Eakin, Seamus P. McCaffery and Thomas G. Saylor in the majority.

Justices Debra McCloskeyTodd and Max Baer opposed the move. In a sharply-worded dissenting opinion, Todd contended that the majority’s decision “heedlessly contravenes over 225 years of unyielding protection against unreasonable search and seizure which our people have enjoyed as their birthright.”

In the majority opinion, McCaffery said adopting the federal stance will ensure that police in Pennsylvania follow a “uniform standard for a warrantless search of a motor vehicle, applicable in federal and state court, to avoid unnecessary confusion, conflict and inconsistency in this often-litigated area.”

Requiring that police have probable cause for warrantless vehicle searches “is a strong and sufficient safeguard against illegal searches of motor vehicles,” he wrote in the 62-page majority decision.

The Supreme Court’s ruling stems from a legal battle over a January 2010 traffic stop in Philadelphia.

Two police officers pulled over a sport-utility vehicle driven by Shiem Gary because they believed its window tinting was too dark. The officers then claimed they smelled marijuana coming from the SUV and that Gary told them there was “weed” in the vehicle.

Police said a drug-sniffing dog hit on the SUV and a subsequent warrantless search discovered about 2 pounds of marijuana hidden under the hood.

Supreme Court justice Debra McCloskeyPennsylvania Supreme Court justice Debra McCloskey Todd. Read McCloskey Todd’s profile.

 Gary challenged whether the police had legally obtained the drug evidence. The case came to the Supreme Court on appeal after the state Superior Court backed Gary.

In the Supreme Court’s majority decision, McCaffery noted the federal law allowing warrantless searches of vehicles with probable cause evolved from federal rulings that date to the Prohibition Era of the 1920s, when federal agents were chasing bootleggers.

McCaffery wrote that, while police must secure warrants before searching homes or offices, “there is a diminished expectation of privacy in motor vehicles” that is recognized not only by the feds, but by other states as well.

Todd countered in her dissenting opinion that the majority’s decision “severely diminishes” the “important personal privacy rights which owners and occupants of automobiles possess therein.”

“Advances in technology have caused cars to become data repositories revealing the most discrete information about how and where individuals drive, whom they call from their car and any number of other revealing insights into what they do in their daily lives,” she wrote. “For most people, the automobile…has become a rolling repository of their private possessions.”

When warrants are required before vehicle searches, at least a neutral judge, and not the police, makes the call regarding whether searches are legally permissible, she wrote.

In any case, Todd noted, advances in communications now enable police to obtain search warrants almost immediately, so time constraints that once might have hindered investigations no longer exist.