In a prosecution for bank fraud and tax evasion, district court's exclusion of defense evidence on the ground that defendant failed to comply with the reciprocal discovery requirement of Fed. R. Crim. P. 16(c) is affirmed as the district court did not err in excluding the evidence, but even if the court did err, it was harmless error because the excluded evidence would not have created reasonable doubt.     

Read US v. Hardy, No. 08-5421

Appellate Information

Argued: October 13, 2009

Decided and Filed: November 20, 2009

Judges

Opinion by Senior District Judge Hood

Counsel

For Appellant:   David W. Camp, Law Offices of David W. Camp

For Appellee:  R. Leigh Grinalds, Assistant US Attorney

Defendant's sentence to 28 months' imprisonment for possession with intent to distribute cocaine base is affirmed as the district court properly attributed six criminal history points to defendant's prior convictions and two additional points under U.S.S.G. section 4A1.1(e) because the instant offense occurred less than two years after his release from his juvenile confinement, for a total of eight criminal history points and a sentencing guidelines range of 24 to 30 months.    

Read US v. Thompson, No. 08-3760

Appellate Information

Argued: October 13, 2009

Decided and Filed: November 20, 2009

Judges

Opinion by Senior District Judge Hood

Counsel

For Appellant:   Mark R. DeVan, Berkman, Gordon, Murray & DeVan

For Appellee:   Laura McMullen Ford, Assistant US Attorney

District court's grant of petition for habeas relief on the ground that the trial court violated the Double Jeopardy Clause by convicting defendant for both the felon in possession statute and the felony firearm statute is reversed as current jurisprudence allows for multiple punishment for the same offense provided the legislature has clearly indicated its intent to so provide and recognizes no exception for necessarily included or overlapping offenses.     

Read White v. Howes, No. 08-1458

Appellate Information

Argued: June 19, 2009

Decided and Filed: November 20, 2009

Judges

Opinion by Circuit Judge White

Counsel

For Appellant:   Brad H. Beaver, Office of the Michigan Attorney General

For Appellee:   C. Mark Pickrell, Waller Lansden Dortch & Davis, LLP

In Chapter 7 bankruptcy proceedings, the Bankruptcy Appellate Panel's (BAP) denial of plaintiff-creditor's motion to allow an informal proof of claim based on its prior filings as a putative secured creditor is affirmed as the BAP did not abuse its discretion in finding that: 1) plaintiff had ample notice of the likelihood that it would lose its status as a secured creditor, necessitating the filing of a proof of claim; 2) plaintiff's unexplained delay weighed against allowing plaintiff's informal proof of claim; and 3) the large dilution in the distribution to other creditors in this case was an appropriate consideration weighing against allowing plaintiff's claim. 

Read In re: Nowak, No. 08-3690

Appellate Information

Argued: October 13, 2009

Decided and Filed: November 13, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:  David A. Freeburg, McFadden & Freeburg Co., LPA., Cleveland, Ohio

For Appellee: Lydia Evelyn Spragin, Akron, Ohio

In plaintiff's ERISA suit against an insurance company for denying his claim for dismemberment benefits arising from a drunk-driving motorcycle accident, summary judgment for defendant-plan administrator is reversed and remanded for entry of judgment in favor of the plaintiffs where: 1) defendant's decision to deny benefits to the plaintiffs was contrary to the everyday meaning of the word "accidental" as it would be understood by a typical policyholder, and was based almost entirely on a body of largely distinguishable district court cases; 2) plaintiff's injuries were not "highly likely to occur" as a result of his intoxication, in contrast to the injuries that were highly likely to occur under the facts in Lennon; 3) defendant's interpretation of the Plan's provisions amounts to an additional, unwritten exclusion for all drunk-driving injuries, which is not permitted under even the most deferential standard of review; and 4) defendant's denial of coverage based on plaintiff's injuries being non-accidental was unreasonable, arbitrary and capricious.     

Read Kovach v. Zurich American Ins. Co., No. 08-4512

Appellate Information

Argued: July 28, 2009

Decided and Filed: November 13, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:  Matthew D. Greenwell, Charles V. Longo Co., LPA, Beachwood, Ohio

For Appellee:  Rebecca B. Jacobs, Ulmer & Berne LLP, Columbus, Ohio

In a second degree murder case, district court's denial of defendant's petition for habeas relief is vacated and remanded for an evidentiary proceeding to determine whether: 1) the trial closure during the testimony of three prosecution witnesses was justifiable; 2) trial counsel was constitutionally ineffective for failing to object to the closure; and 3) the cause and prejudice components of defendant's public trial claim can be satisfied.     

Read Johnson v. Sherry, No. 08-1322

Appellate Information

Argued: August 7, 2009

Decided and Filed: November 13, 2009

Judges

Opinion by Circuit Judge Clay

Counsel

For Appellant:  Elizabeth L. Jacobs, Law Office, Detroit, Michigan

For Appellee:   Andrew I. Shirvell, Office of the Michigan Attorney General, Lansing, Michigan

District court's orders releasing defendant from prison and barring his reprosecution on the ground that the State took too long to conduct a second trial are reversed and remanded with instructions to dismiss the petition for lack of jurisdiction as no federal power authorized the district court to release the defendant from pretrial detention on a legitimate state charge, or to bar his reprosecution.      

Read Eddleman v. McKee, No. 08-1093

Appellate Information

Argued: June 10, 2009

Decided and Filed: November 12, 2009

Judges

Opinion by Circuit Judge Kethledge

Counsel

For Appellant:  B. Eric Restuccia, Office of the Michigan Attorney General, Lansing, Michigan

For Appellee:  Andrew N. Wise, Federal Defender Office, Detroit, Michigan

District court's denial of defendant's motion to dismiss his indictment for conspiracy to commit computer fraud is affirmed where: 1) defendant did not properly preserve his factual specificity of the indictment argument; 2) defendant failed to establish that the face of the indictment failed to charge the elements of a federal offense; 3) no violation of the statute of limitations occurred as the indictment was returned within five years of the last act in furtherance of the conspiracy; 4) defendant failed to demonstrate that he was actually prejudiced by a pre-indictment delay; and 5) the district court committed no error in denying defendant's motion to dismiss based upon entrapment as a matter of law.   

Read US v. Schaffer, No. 09-3053

Appellate Information

Argued: July 29, 2009

Decided and Filed: November 12, 2009

Judges

Opinion by District Judge Vantatenhove

Counsel

For Appellant:  Richard G. Lillie, Lillie & Holderman, Cleveland, Ohio

For Appellee:  Daniel R. Ranke, Assistant US Attorney, Cleveland, Ohio

In a section 1983 suit brought against a county Board of Education  (Board) by the parents of children who were dismissed from a high school football team for challenging their coach's leadership, a jury verdict in favor of defendants is affirmed where: 1) the Board's policy amounts to a content-neutral time, place and manner regulation; 2) the board's policy is not unconstitutionally vague on its face and as applied; 3) plaintiffs' challenges to several of trial court's jury instructions are rejected; but 4) district court's decision to grant $87,216.49 in attorney's fees and expenses to defendants is reversed as plaintiffs' action were not frivolous, unreasonable, or without foundation.     

Read Lowery v. Jefferson County Bd. of Educ., No. 07-6324

Appellate Information

Argued: August 6, 2009

Decided and Filed: November 12, 2009

Judges

Opinion by Circuit Judge Sutton

Counsel

For Appellant:  G. Mark Mamantov, Bass Berry & Sims, PLC., Knoxville, Tennessee

For Appellee:  Michael S. Kelley, Kennerly Montgomery & Finley, PC., Knoxville, Tennessee