U.S. Sixth Circuit: September 2009 Archives
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September 2009 Archives

Montgomery v. Bagley, No. 07-3882

In a death penalty case, district court's new trial order granting defendant's petition for habeas relief based on a finding that the state violated Brady is affirmed where: 1) a withheld pretrial report was exculpatory and should have been disclosed at trial; 2) it was material because, if true, it would likely change the outcome of the trial; and 3) the ultimate determination concerning the truth of the withheld report is for the state courts to resolve.  District court's denial of the Rule 59(e) motion to alter or amend is affirmed and the remaining issues raised in petitioner's cross-appeal are pretermitted.

Read Montgomery v. Bagley, No. 07-3882

Appellate Information

Argued: June 17, 2009

Decided and Filed: September 29, 2009

Judges

Opinion by Chief Judge Merritt

Counsel

For Appellant:  Stephen E. Maher, Officer of the Ohio Attorney General

For Appellee:  Richard Marvin Kerger, Kerger & Hartman, LLC

US v. Metcalfe, No. 08-1812

District court's post-judgment order denying defendant's motion for a sentence reduction is affirmed as the appeal lacked merit and 18 U.S.C. section 3582(c)(2) is not a vehicle for convicts to raise unrelated sentencing challenges that they had previously overlooked or omitted.     

Read US v. Metcalfe, No. 08-1812

Appellate Information

Argued: April 23, 2009

Decided and Filed: September 28, 2009

Judges

Opinion by Chief Judge Batchelder

Counsel

For Appellant:  Sharon A. Turek, Federal Public Defender's Office

For Appellee:  Mark V. Courtade, Assistant United States Attorney

Cincom Sys., Inc. v. Novelis Corp., No. 07-4142

In a copyright infringement case involving software licensing agreements, district court's summary judgment to plaintiff Cincom Systems, Inc. (Cincom) is affirmed as defendant Novelis did not abide by the express terms of Cincom's license and gain prior written approval before impermissibly transferring the software license when it underwent internal reorganization.   

Read Cincom Sys., Inc. v. Novelis Corp., No. 07-4142

Appellate Information

Argued: September 8, 2009

Decided and Filed: September 25, 2009

Judges

Opinion by Judge Gibbons

Counsel

For Appellant:  Irene C. Keyse-Walker, Tucker, Ellis & West LLP

For Appellee: Joseph Michael Callow Jr., Keating, Muething & Klekamp, PLL

Blakley v. Comm'r of Soc. Sec., No. 08-6270

District court's judgment affirming a decision denying petitioner's request for social security disability benefits is reversed and remanded because an ALJ failed to give good reasons for discounting the opinions of petitioner's treating physicians in violation of 20 C.F.R. section 404.1527 (d)(2).   

Read Blakley v. Comm'r of Soc. Sec., No. 08-6270

Appellate Information

Argued: April 4, 2009

Decided and Filed: September 24, 2009

Judges

Opinion by Judge Suhrheinrich

Counsel

For Appellant:  Julie Anne Atkins, Atkins Law Office, Harlan Kentucky

For Appellee: Haila Naoli Kleinman, Holly A. Grimes, Mary Ann Sloan, Social Securoty Administration, Office of General Counsel, John S. Osborn III, Assistant United States Attorney

Wagner v. Smith, No. 07-2129

In habeas proceedings arising from petitioner's murder conviction, district court's denial of relief is vacated and remanded as three of petitioner's claims have not been properly exhausted because the claims were not fairly presented to the state courts. 

Read Wagner v. Smith, No. 07-2129

Appellate Information

Argued: July 31, 2009

Decided and Filed: September 24, 2009

Judges

Opinion by Judge Kennedy

Counsel

For Appellant:  Robert A. Amicone II, Squire, Sanders & Dempsey LLP, Cincinnati, Ohio

For Appellee:  Debra M. Gagliardi, Office of the Michigan Attorney General

In a dispute involving insurance coverage brought against policyholder-yacht dealer and marina operator, district court's order and judgment granting defendant's motion to dismiss pursuant to its discretion to decline to exercise jurisdiction over claims brought under the Declaratory Judgment Act is reversed as the court incorrectly assumed that it had jurisdiction, and thus, its analysis of the abstention issue is vacated.  However, the district court's judgment dismissing plaintiff's claims is affirmed as, looking at the interests insured by the policy sub judice, the weight of authority indicated that the insurance policy at issue was not a maritime contract because its primary objective does not relate to maritime commerce.   

Read New Hampshire Ins. Co. v. Home Savings & Loan Co. of Youngstown, Ohio, No. 08-3902

Appellate Information

Argued: March 13, 2009

Decided and Filed: September 24, 2009

Judges

Opinion by Judge Clay 

Counsel

For Appellant:  Edward R. Goldman, Rendigs, Fry, Kiely & Dennis, LLP., Cincinnati, Ohio

For Appellee:  Robert S. Fulton, Newman, Olson & Kerr, Canfiled, Ohio; Rosemary Taft Milby, Weltman, Weinberg & Reis Co., LPA., Cleveland, Ohio. 

Risch v. Royal Oak Police Dep't, No. 08-1883

In plaintiff's gender discrimination action under Title VII against the police department, summary judgment for defendants is reversed and remanded as plaintiff, a patrol officer and a seventeen-year veteran with the department, had arguably superior qualification than the two successful applicants who received the promotions as detectives and produced other probative evidence of gender discrimination.  

Read Risch v. Royal Oak Police Dep't, No. 08-1883

Appellate Information

Argued: August 4, 2009

Decided and Filed: September 23, 2009

Judges

Opinion by Judge Moore

Counsel

For Appellant:  Richard I. Lippitt, Law Office of Richard I. Lippitt, PC of Milford, Michigan

For Appellee:  Karen M. Daley, Cummings, McClorey, Davis & Acho, PLC, of Livonia, Michigan

In plaintiff's case against a benefit plan administrator for denying its claim for benefits under ERISA, district court's judgment is affirmed in part and reversed in part where: 1) district court did not err in applying the de novo standard of review in concluding that the third-party administrator for the plan rather than defendant made the decision to deny the claim for benefits; 2) district court properly concluded that defendant erred in denying the claim as the court correctly determined that the benefits for which the claimant sought payment did not stem from a loss caused by driving without a license and driving without insurance, for purposes of an exclusionary clause in the plan; 3) district court properly awarded benefits and prejudgment interest to plaintiff; and 4) award of attorney's fees is reversed as the district court erred in weighing the first factor of the five-factor test in favor of a fees award. 

Read Shelby County Health Care Corp. v. Majestic Star Casino, LLC Group Health Benefit Plan, No. 08-6078

Appellate Information

Argued: June 16, 2009

Decided and Filed: September 21, 2009

Judges

Opinion by Judge Clay 

Counsel

For Appellant:  David A. Thornton, Bass, Berry & Sims PLC

For Appellee:  Curtis Henry Goetsch, McCullough & McCullough, PLLC

Moulton v. US Steel Corp., No. 08-2311

In a class action lawsuit by the neighbors of a steel mill owned by United States Steel Corporation, district court's approval of a settlement is affirmed for the most part where: 1) the district court did not abuse its discretion in approving the release of the continuing-nuisance claims as the release is not far-reaching and it is not unfair, unreasonable or inadequate; 2) class-member awards of $300 is not unconscionably low as this objection is based on the misconception that the agreement releases all future tort claims; and 3) district court's approval of the attorney's fees award is vacated and remanded for further explanation. Finally, district court did not err by corralling the extent of an attorney's involvement in the case and the rest of his objections are rejected.     

Read Moulton v. US Steel Corp., No. 08-2311

Appellate Information

Argued: August 4, 2009

Decided and Filed: September 21, 2009

Judges

Opinion by Judge Sutton 

Counsel

For Appellant:  James P. Murphy, Berry Moorman PC

For Appellee:  J. Van Carson, Squire, Sanders & Dempsey LLP.

US v. Evans, No. 07-2565

Defendant's conviction for threatening to assault a federal law enforcement officer is affirmed where: 1) the Federal Protective Service (FPS) officers reasonably exercised their investigative and protective authority pursuant to 40 U.S.C. section 1315 when they left federal property to surveil defendant's vehicle; 2) defendant's conduct, by tailgating the FPS officers' marked police vehicle and making hand gestures simulating firing of a handgun, provided the FPS officers with probable cause to arrest defendant regardless of her presence on non-federal property; 3) district court properly affirmed the magistrate judge's ruling denying motion to suppress as defendant's response to the officer was spontaneously volunteered and unresponsive to the officer's question.      

Read US v. Evans, No. 07-2565

Appellate Information

Argued: June 12, 2009

Decided and Filed: September 22, 2009

Judges

Opinion by Judge Griffin

Counsel

For Appellant:  Todd Shanker, Federal Defender Office

For Appellee:  Kathleen Moro Nesi, Assistant United States Attorney

US v. Johnson, No. 08-1662

Conviction of defendant for premeditated murder, bank robbery and related crimes is affirmed where: 1) tape recording was properly admitted as Confrontation Clause was not implicated because the statements were not testimonial and were admissible under Federal Rule of Evidence 804(b)(3); 2) defendant's claim of prosecutorial misconduct is rejected; and 3) it need not be decided whether witness' testimony was improper where it could not have materially affected the verdict.      

Read US v. Johnson, No. 08-1662

Appellate Information

Argued: July 31, 2009

Decided and Filed: September 18, 2009

Judges

Opinion by Judge Cole

Counsel

For Appellant: Elizabeth L. Jacobs 

For Appellee:  Kevin M. Mulcahy, Assistant United States Attorney, Detroit Michigan

In plaintiffs' lawsuit against defendants employers brought under LMRA and ERISA, district court's grant of defendants' motion for summary judgment is reversed and remanded with instructions to enter summary judgment in favor of plaintiffs as a finding of employer intent is not essential or prerequisite to imposition of alter ego status, but is merely one of the relevant factors which the courts can consider.     

Read Tr. of the Detroit Carpenters Fringe Benefit Funds v. Indus. Contracting, LLC, No. 08-1457

Appellate Information

Argued: March 11, 2009

Decided and Filed: September 17, 2009

Judges

Opinion by Judge Daughtrey

Counsel

For Appellant:  Walter B. Fisher Jr., Fildew Hinks, PLLC, Detroit Michigan

For Appellee:  Steven A. Wright, Steven A. Wright, PC., Shelby Township, Michigan

Segal v. Fifth Third Bank, N.A., No. 08-3576

District court's dismissal of plaintiff-trust accounts beneficiary's class action against bank and its holding company on state-law claims of breach of fiduciary duty and breach of contract is affirmed as the Securities Litigation Uniform Standards Act of 1998 bars plaintiff's claims.     

Read Segal v. Fifth Third Bank, N.A., No. 08-3576

Appellate Information

Argued:June 11, 2009

Decided and Filed: September 17, 2009

Judges

Opinion by Judge Sutton

Counsel

For Appellant:  David A.P. Power, Law Office, New York

For Appellee:  Patrick F. Fischer, Keating Muething & Klekamp PLL, Cincinnati, Ohio

Desmet v. Comm'r of Internal Revenue, No. 08-1598

In a consolidated appeal of orders of the United States Tax Court assessing income deficiencies against former business partners engaged in an abusive tax shelter known as "Son-of-Boss", the tax court had jurisdiction over the deficiency proceedings but the case is remanded for consideration of whether certain components of the deficiencies were time-barred.     

Read Desmet v. Comm'r of Internal Revenue, No. 08-1598

Appellate Information

Argued: March 10, 2009

Decided and Filed: September 17, 2009

Judges

Opinion by Judge Gibbons

Counsel

For Appellant:  David D. Aughtry, Chamberlain, Hrdlicka, White, Williams & Martin, Atlanta, Georgia. 

For Appellee:  Michael J. Haungs, United States Department of Justice, Washington, D.C.

Abdulahad v. Holder, No. 08-3850

Petition for review of BIA's decision to uphold the IJ's finding that a Syrian petitioner's former marriage to a US citizen was a sham is denied as the marriage was entered into in an attempt to allow him to remain in the United States and thus uphold the IJ's ruling that petitioner is removable under section 237(a)(1) as supported by substantial evidence.  Petitioner's remaining claims are rejected.     

Read Abdulahad v. Holder, No. 08-3850

Appellate Information

Argued:June 16, 2009

Decided and Filed: September 15, 2009

Judges

Opinion by Judge Friedman

Counsel

For Appellant:  Russell R. Abrutyn, Marshale E. Hyman & Associates PC.    

For Appellee:  Jesse Lloyd Busen, United States Department of Justice.   

Thompson v. Bell, No. 06-5744

In habeas proceedings arising from petitioner's capital murder conviction, district court's denial of relief is affirmed in part and reversed in part and remanded where: 1) district court's denial of defendant's Rule 60(b) motion is reversed and remanded with instructions for the district court to first rule on the merits of defendant's remaining ineffective assistance claims, while only addressing the incompetency question if it rejects the ineffective assistance claims on the merits; 2) the case is remanded to conduct defendant's incompetency hearing and decide the merits of his incompetency claim de novo because the Tennessee courts unreasonably applied federal law clearly established by Ford v. Wainwright, 477 U.S. 399 (1986); and 3) district court's dismissal of defendant's chemical competency claim is affirmed without prejudice to defendant raising a chemical competency claim in the future should he be forcibly medicated.      

Read Thompson v. Bell, No. 06-5744

Appellate Information

Argued:October 30,2008

Decided and Filed: September 11, 2009

Judges

Opinion by Judge Clay 

Dissent by Suhrheinrich

Counsel

For Appellant:

Dana Hansen Chavis, Federal Defender Services of Eastern Tennessee, Inc.

For Appellee:

Jennifer Lynn Smith, Office of the Tennessee Attorney General

US v. Stall, No. 08-4064

District court's sentencing of a defendant convicted of possession of child pornography to one day of incarceration and a ten-year period of supervised release is affirmed as the government at sentencing put forward almost no evidence for why a sentence within the Guidelines was warranted and did not raise the argument it now raised on appeal, and the district court's explanation for the extent of its downward variance was sufficient in light of the record made before it.     

Read US v. Stall, No. 08-4064

Appellate Information

Argued: August 5, 2009

Decided and Filed: September11, 2009

Judges

Opinion by Judge Boggs

Dissent by Judge Rogers 

Counsel

For Appellant: Bejamine C. Glassman, Assistant United States Attorney 

For Appellee: Scott Aaron Rubenstein, Rubenstein & Thurman, LPA 

Saqr v. Holder, No. 07-3794

In a petition for review of the BIA's order holding that petitioner was subject to removal on the grounds that his criminal conviction for second degree assault under extreme emotional disturbance under Kentucky law was an aggravated felony and that his conviction for reckless homicide was a crime of moral turpitude, the petition is granted: where 1) the BIA erred when it applied the post-IIRIRA definition of "aggravated felony" to petitioner's case because the issuance of an arrest warrant by the INS which had not been canceled constituted an "action taken" for purposes of triggering application of the pre-IIRIRA definition of an aggravated felony; and 2) neither of petitioner's prior convictions constituted an aggravated felony under the pre-IIRIRA definition. The matter is remanded for reconsideration of whether petitioner's conviction for reckless homicide constitutes a crime involving moral turpitude.

Read Saqr v. Holder, No. 07-3794

Appellate Information

Argued: December 5, 2008

Decided and Filed: September 9, 2009

Judges

Opinion by Judge Stamp

Counsel

For Petitioner:

Blake P. Somers, Cincinnati, OH

For Respondent:

Blair O'Connor, U.S. Department of Justice, Washington, DC

US v. Dyer, No. 08-5671

In a drug prosecution, a denial of defendant's motion to suppress evidence is affirmed where: 1) an affidavit in support of the search warrant established the reliability of the police's informant; and 2) there were sufficient indicia of reliability without substantial independent police corroboration.

Read US v. Dyer, No. 08-5671

Appellate Information

Argued: June 16, 2009

Decided and Filed: September 8, 2009

Judges

Opinion by Judge Gibbons

Dissent by Judge Moore

Counsel

For Appellant:

Stephen Ross Johnson, Ritchie, Dillard & Davies, P.C., Knoxville, TN

For Appellee:

Hugh B. Ward, Jr., Assistant United States Attorney, Knoxville, TN

Ruelas v. Wolfenbarger, No. 08-1571

In a murder prosecution, the district court's grant of a habeas petition is reversed where, even assuming state courts unreasonably applied federal law in determining that petitioner's guilty plea was not improper, the inquiry became whether the failure to consider manslaughter "had a substantial and injurious effect or influence" on the determination that he was guilty of second-degree murder, and it did not have such an effect.

Read Ruelas v. Wolfenbarger, No. 08-1571

Appellate Information

Argued: June 11, 2009

Decided and Filed: September 8, 2009

Judges

Opinion by Judge Martin

Counsel

For Appellant:

Jerrold E. Schrotenboer, Jackson County Prosecutor's Office, Jackson, MI

For Appellee:

Nathan S. Mammen, Kirkland & Ellis LLP, Washington, DC

Chen v. Dow Chem. Co., No. 08-1597

In an action claiming that defendant terminated plaintiff based on her race, summary judgment for defendant is affirmed where: 1) defendant had ample evidence of plaintiff's performance problems; 2) no reasonable jury could find that it was "more likely than not" that plaintiff's performance was a pretext for an illegal motive; and 3) plaintiff failed to create a genuine issue of material fact as to pretext on her retaliation claim.

Appellate Information

Argued: June 11, 2009

Decided and Filed: September 8, 2009

Judges

Opinion by Judge Martin

Counsel

For Appellant:

Bryan L. Monaghan, Law Office of Bryan Monaghan, Rochester, MI

For Appellee:

Edward J. Bardelli, Warner, Norcross & Judd LLP, Grand Rapids, MI

US v. Young, No. 08-1394

Defendant's firearm possession conviction and sentence are affirmed where: 1) neither defendant nor his counsel clearly expressed an intention to preserve a suppression of evidence issue on appeal; and 2) defendant's conviction for fleeing and eluding law enforcement involved conduct that presented a serious potential risk of physical injury to another and was thus a violent felony under the Armed Career Criminal Act.

Read US v. Young, No. 08-1394

Appellate Information

Argued: June 11, 2009

Decided and Filed: September 4, 2009

Judges

Opinion by Judge Lioi

Partial Concurrence and Partial Dissent by Judge Sutton

Counsel

For Appellant:

Richard Charles Gould, Law Offices, Grand Rapids, MI

For Appellee:

Jennifer L. McManus, Assistant United States Attorney, Grand Rapids, MI

Hodge v. Haeberlin, No. 06-6027

In a capital habeas matter, the denial of petitioner's petition is affirmed, where: 1) the results of new DNA testing could not exclude petitioner from the crime scene; 2) Kentucky's determination that petitioner failed to properly plead his claim that his counsel refused to allow him to testify precluded review; and 3) petitioner failed to overcome the presumption that the challenged questioning by his counsel might be considered sound trial strategy.

Read Hodge v. Haeberlin, No. 06-6027

Appellate Information

Argued: October 21, 2008

Decided and Filed: September 4, 2009

Judges

Opinion by Judge Rogers

Dissent by Judge Martin

Counsel

For Appellant:

Laurence E. Komp, Law Office, Manchester, MO

For Appellee:

Julie Scott Jernigan, Office of the Kentucky Attorney General, Frankfort, KY

Geiger v. Tower Automotive, No. 08-1314

In an Age Discrimination in Employment Act action claiming discriminatory termination, summary judgment for defendant is affirmed where: 1) there was no evidence to indicate that plaintiff's supervisor's allegedly discriminatory mindset resulted in any adverse employment action; and 2) plaintiff was not replaced by another worker and was terminated as part of a reduction in force.

Appellate Information

Argued: May 1, 2009

Decided and Filed: September 4, 2009

Judges

Opinion by Judge Gibbons

Concurrence by Judge Rogers

Counsel

For Appellant:

Richard A. Meier, Law Office, Farmington Hills, MI

For Appellee:

Philip B. Phillips, Foley & Lardner LLP, Detroit, MI

Hensley Mfg. Inc. v. ProPride, Inc., No. 08-1834

In a trademark infringement action alleging improper use of a trailer hitch designer's name, dismissal of the complaint is affirmed where: 1) the complaint did not allege facts sufficient to show that defendant's use of the name created a likelihood of confusion as to the source of its products; and 2) the fair use defense applied because the use of the name was descriptive.

Read Hensley Mfg. Inc. v. ProPride, Inc., No. 08-1834

Appellate Information

Argued: June 19, 2009

Decided and Filed: September 3, 2009

Judges

Opinion by Judge McKeague

Counsel

For Appellant:

Craig A. Redinger, Young Basile, Ann Arbor, MI

For Appellees:

Josh J. Moss, Barris, Sott, Denn & Driker, PLLC, Detroit, MI

John F. Early, Jr., Law Office, Fenton, MI

US v. Tinklenberg, No. 06-2646

Defendant's firearm possession conviction is reversed and the district court is instructed to dismiss the indictment with prejudice where the length of time between defendant's indictment and prosecution violated the Speedy Trial Act, and a reprosecution would be contrary to the administration of justice because defendant had already served the entirety of his sentence, as well as his sentence for violating his supervised release.

Read US v. Tinklenberg, No. 06-2646

Appellate Information

Argued: June 19, 2009

Decided and Filed: September 3, 2009

Judges

Opinion by Judge Clay

Counsel

For Appellant:

Kevin M. Schad, Schad & Schad, Lebanon, OH

For Appellee:

Julie Ann Woods, Assistant United States Attorney, Grand Rapids, MI

Sherwood v. Prelesnik, No. 08-1019

In a criminal sexual conduct habeas matter, dismissal of a habeas petition as barred by the one-year statute of limitations in 28 U.S.C. section 2244(d) is reversed where: 1) a timely motion for rehearing in a state supreme court on a post-conviction appeal tolls the time for a habeas petition under 28 U.S.C. section 2244(d); and 2) cases pending when the Supreme Court overruled prior circuit precedent in Lawrence v. Florida, 127 S. Ct. 1079 (2007), are entitled to equitable tolling.

Read Sherwood v. Prelesnik, No. 08-1019

Appellate Information

Argued: June 16, 2009

Decided and Filed: September 3, 2009

Judges

Opinion by Judge White

Counsel

For Appellant:

Stuart G. Friedman, Kirsch & Satawa, P.C., Southfield, MI

For Appellee:

Debra M. Gagliardi, Office of the Michigan Attorney General, Lansing, MI

Schreiber v. Philips Display Components Co., No. 07-2440

In an ERISA action claiming that defendant breached its collective bargaining agreement (CBA) with, and violated fiduciary duties owed to, plaintiffs when it refused to provide plaintiffs with retiree health benefits, summary judgment for defendants is reversed where: 1) the district court erred in construing the CBA as including a specific durational clause limiting retiree healthcare benefits to the duration of the CBA; and 2) even if defendant-employer's transfer of assets was not a "fiduciary act," it was still required to comply with ERISA procedures.

Read Schreiber v. Philips Display Components Co., No. 07-2440

Appellate Information

Argued: October 23, 2008

Decided and Filed: September 2, 2009

Judges

Opinion by Judge White

Dissent by Judge Vinson

Counsel

For Appellants:

David W. Zoll, Zoll, Kranz & Borgess, LLC, Toledo, OH

For Appellees:

Gregory V. Mersol, Baker & Hostetler LLP, Cleveland, OH

US v. Wynn, No. 07-4307

Defendant's crack cocaine distribution sentence is vacated and remanded where the district court needed to determine whether defendant qualified as a career offender in light of Begay v. U.S., 128 S. Ct. 1581 (2008), because: 1) a generic conviction for sexual battery under Ohio Rev. Code section 2907.03, defendant's prior offense of conviction, was not categorically a "crime of violence"; and 2) the factual recitation of the crime provided in the presentence report did not indicate that defendant's offense was a crime of violence.

Read US v. Wynn, No. 07-4307

Appellate Information

Argued: December 3, 2008

Decided and Filed: September 2, 2009

Judges

Opinion by Judge Moore

Partial Concurrence and Partial Dissent by Judge Friedman

Counsel

For Appellant:

Jonathan Witmer-Rich, Office of the Federal Public Defender, Cleveland, OH

For Appellee:

Gregory C. Sasse, Assistant United States Attorney, Cleveland, OH

US v. Burchard, No. 07-6312

Defendant's conviction for knowingly possessing a firearm in and affecting commerce while being an unlawful user or addicted to a controlled substance is affirmed where: 1) the district court did not abuse its discretion in declining to instruct the jury on defendant's proposed definition of "unlawful user"; 2) the district court's instruction made clear that the prosecutor was required to prove more than use of a controlled substance in a manner other than as prescribed by a licensed physician; and 3) reasonable jurors could have concluded from this evidence that defendant's use of crack cocaine was regular, sustained, and contemporaneous with his possession of the five firearms at issue.

Read US v. Burchard, No. 07-6312

Appellate Information

Argued: December 3, 2008

Decided and Filed: September 2, 2009

Judges

Opinion by Judge White

Counsel

For Appellant:

Richard L. Walter, Boehl, Stopher & Graves, Paducah, KY

For Appellee:

G. David Sparks, Assistant United States Attorney, Paducah, KY

US v. Kratt, No. 08-5831

Defendant's conviction and sentence for engaging in monetary transactions in criminally derived property are affirmed where: 1) "proceeds obtained from a criminal offense" in 18 U.S.C. section 1957(f)(2) refers to gross receipts rather than profits, except where an 18 U.S.C. section 1956 predicate offense creates a merger problem that leads to a radical increase in the statutory maximum sentence and only when nothing in the legislative history suggests that Congress intended such an increase; and 2) the restitution order was proper because the victim's loss stemmed directly and proximately from defendant's bank fraud and false statements.

Read US v. Kratt, No. 08-5831

Appellate Information

Argued: August 4, 2009

Decided and Filed: September 2, 2009

Judges

Opinion by Judge Sutton

Counsel

For Appellant:

Karimbumkara Jayaraman, Law Offices, Memphis, TN

For Appellee:

Timothy R. Discenza, Assistant United States Attorney, Memphis, TN

Broom v. Strickland, No. 08-4200

In a 42 U.S.C. section 1983 challenge to Ohio's lethal injection method of execution, the dismissal of the action is affirmed where: 1) the continuing-violations doctrine did not toll the statute of limitations; 2) the statute of limitations set forth in Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007) (Cooey II), did not constitute a "new rule of law" that could not be applied retroactively; and 3) Cooey II did not fully adopt the Antiterrorism and Effective Death Penalty Act's statute-of-limitations provisions.

Read Broom v. Strickland, No. 08-4200

Appellate Information

Filed September 1, 2009

Judges

Opinion by Judge Moore

Counsel

For Appellant:

Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, OH

For Appellees:

Charles L. Wille, Office of the Ohio Attorney General, Columbus, OH