March 20, 2019

Dr. Ulrich Herrmann, Chief Judge of the III Civil Panel in Germany, to Speak at Brown Palace

Herrmann_pic_02The Colorado Bar Association International Law Section and the Colorado Chapter of the German American Chamber of Commerce are hosting a luncheon with Dr. Ulrich Herrmann, Chief Judge of the III Civil Panel of the Supreme Court of Germany. Dr. Herrmann will discuss the refugee crisis, Brexit, and political freedom of speech.

Dr. Herrmann was appointed presiding justice of the Federal Court of Justice (Bundesgerichtshof) and chairman of the 3rd Civil Panel on August 4, 2015. The Bundesgerichtshof is the German Federal Supreme Court for civil, family, and criminal cases. As chairman of the 3rd Civil Panel, his jurisdiction includes state liability, liability of notaries, service contracts, mandate law, law of private foundations and several other subjects. Dr. Herrmann was first appointed to the Justice of the Federal Court of Justice and to the 3rd Civil Panel in December 2003. He has additionally served as judicial tasks representative for the court on IT matters since March 2007.

Dr. Herrmann began his law career as an assistant at the Institute of Civil Procedure and Insolvency Law of the University of Bonn, writing his doctoral thesis on “The Principle Structure of a Pending Civil Law Suit” (Die Grundstruktur der Rechtshängigkeit). He was appointed as a judge at the Regional and the Local Court of Bonn in February1990. Over the following seven years, Dr. Herrmann served first as presidential and later as presiding judge of the Regional Court of Frankfurt (Oder) in the state of Brandenburg. Here he was also responsible for the personal matters of the judges of the district court.

In August 1998, Dr. Herrmann became judge of the Higher Regional Court of Brandenburg, where he continued to take responsibility for the personal matters of regional judges. In December 1999, he became chief of staff of the Brandenburg Ministry of Justice and in December 2002, he was appointed vice president of the agency for legal exams of the state of Brandenburg.

He originally hails from the city of Bonn in North Rhine Westphalia. He is married and has two children, aged 24 and 30 years old.

The program will take place on Friday, August 5, 2016, from noon to 1:30 at the Brown Palace. To register, call (303) 860-1115, ext. 727, or email lunches@cobar.org.

Tenth Circuit: Conviction Stands Despite Jury’s Lack of Instruction on “Discharge” of Firearm

The Tenth Circuit Court of Appeals issued its opinion in United States v. Mann on Monday, May 18, 2015.

Clay Mann threw a firework into a neighbor’s bonfire at the neighbor’s peaceful gathering on an Indian reservation, and when members of the gathering approached the fenceline to confront Mann, he shot nine times, killing one man and grievously wounding one other man and the neighbor. For these acts, he was indicted on eight counts by a federal grand jury. Two weeks after the jury’s verdict, Mann filed a “motion to arrest judgment” based on the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), arguing that his conviction on Count 5 (a firearms offense based on the assault of the neighbor under § 924(c)) must be vacated because the jury did not find “discharge” of a firearm beyond a reasonable doubt. The district court conducted a plain error inquiry and determined it had erred by failing to instruct the jury on the element of discharging the firearm and the error was plain. The district court, however, found the error had not prejudiced Mann, because he had never contested that he fired shots. The district court sentenced Mann to three concurrent 51 month sentences for the involuntary manslaughter and two assault convictions, and a consecutive 120 month sentence for the § 924(c) conviction regarding the assault of the neighbor. Mann appealed.

The Tenth Circuit conducted a plain error review. Mann argued on appeal that the district court constructively amended count 5 of his indictment by not instructing the jury that, to convict, it needed to find beyond a reasonable doubt that he knowingly discharged his firearm in relation to the assault. Finding that the district court properly instructed the jury on the elements of a § 924(c) violation, the Tenth Circuit could discern no error, much less plain error. The Tenth Circuit found that the Alleyne error (failure to instruct the jury that it must find discharge beyond a reasonable doubt) did not qualify Mann for any relief in light of the overwhelming evidence that he discharged a firearm several times during the assault, including Mann’s own FBI interview in which he admitted discharging the firearm. Any error was harmless beyond a reasonable doubt in light of this evidence.

The Tenth Circuit likewise concluded Mann could not use the error from the Alleyne analysis on his constructive amendment claim, since he was not required to show constructive amendment for his Alleyne claim. Although the government endorsed Mann’s “shortcut,” the Tenth Circuit did not. Turning to the merits of Mann’s argument, the Tenth Circuit noted the case law on which he relied for his claim of error had been rejected by the Supreme Court. The Tenth Circuit, relying on good case law, found that Mann failed to show any error and rejected his constructive amendment claim.

The district court’s conviction was affirmed.