U.S. Sixth Circuit: November 2009 Archives
U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

November 2009 Archives

Dortch v. Fowler, No. 08-5476

In plaintiff's suit against a driver of a tractor-trailer and the driver's employer arising from a traffic accident, summary judgment in favor of the driver's employer on a negligent-supervision-and-retention claim and jury's finding in favor of the driver on the underlying negligence claim is affirmed where: 1) although the district court abused its discretion in preventing plaintiff from pursuing a certain line of questioning of defendant's expert witness, the error was harmless; 2) district court's decision that a police report was trustworthy was reasonable or, at the very least, arguable, and thus not an abuse of discretion; and 3) the issue of whether the district court erred in addressing the negligent-supervision-and-retention claim is moot as there is no reversible error in the conduct of the trial and because the jury found that defendant-driver was not negligent. 

Read Dortch v. Fowler, No. 08-5476

Appellate Information

Argued: October 13, 2009

Decided and Filed: November 30, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:  Donald L. Cox, Lynch Cox Gilman & Mahan, PSC.

For Appellee:  Will H. Fulton, Dinsmore & Shohl

US v. Gabbard, No. 08-5445

Defendants' convictions and sentences for conspiracy to manufacture 100 or more marijuana plants, being a felon in possession of a firearm, and possession of firearms in furtherance of a drug trafficking offense is affirmed where: 1) any error in one defendant's sentence did not result in prejudice to him; and 2) district court's conclusion that the other defendant was not a minor participant in the conspiracy was not clearly erroneous. 

Read US v. Gabbard, No. 08-5445

Appellate Information

Argued: April 30, 2009

Decided and Filed: November 25, 2009

Judges

Per Curium Opinion

Counsel

For Appellant:   Willis G. Coffey, Coffey & Ford, PSC.

For Appellee:  James D. Hodge, Hodge Law Firm

Entm't Prod., Inc. v. Shelby County, Tenn., No. 08-5494

Denial of plaintiffs' motion for a preliminary injunction in their suit against the county challenging the constitutionality of the Tennessee Adult-Oriented Establishment Registration Act is affirmed where: 1) the district court did not err in denying the preliminary injunction on the basis that plaintiffs did not demonstrate a substantial likelihood of success in their challenges to the definitions of "adult cabaret," "adult-oriented establishment," and "adult entertainment"; 2) the district court did not err in holding that a vagueness challenge is not likely to succeed on the merits as a narrowing construction sufficiently clarifies the parts this Act allegedly contaminated by vagueness; 3) plaintiffs' claim that the Act's requirements will result in a drastic reduction in the quantity and accessibility of speech is rejected; and 4) the issue of balancing of equities is moot as the district court correctly determined that plaintiffs have not demonstrated a likelihood of success on the merits. 

Read Entm't Prod., Inc. v. Shelby County, Tenn., No. 08-5494

Appellate Information

Argued: April 20, 2009

Decided and Filed: November 25, 2009

Judges

Opinion by Circuit Judge Boggs

Counsel

For Appellant:   J. Michael Murray, Berkman Gordon Murray & DeVan

For Appellee:  Robert B. Rowling, Assistant County Attorney

East Brooks Books, Inc. v. Shelby County, Tenn., No. 08-5958

In an action brought by the operator of two bookstores that sell non-obscene sexually oriented material and restrict admissions to adults only challenging Tennessee's Adult-Oriented Establishment Registration Act, denial of a preliminary injunction is affirmed where: 1) the district court did not err in determining that plaintiff has not shown a substantial likelihood of succeeding on the merits of the challenge to the "adult bookstore" definition; 2) the district court was correct in finding no substantial likelihood of success on the merits of plaintiff's claim that the Act punishes operators of adult establishments on the basis of strict liability; 3) the district court did not err in finding that plaintiff did not show a substantial likelihood of success on the merits of plaintiff's challenge to the Act's penalty provision; and 4)  plaintiff's remaining claims are rejected.     

Read East Brooks Books, Inc. v. Shelby County, Tenn., No. 08-5958

Appellate Information

Argued: April 20, 2009

Decided and Filed: November 25, 2009

Judges

Opinion by Circuit Judge Boggs

Counsel

For Appellant:   Frierson M. Graves, Jr., Baker Donelson Bearman Caldwell & Berkowitz

For Appellee:  Robert B. Rowling, Assistant County Attorney

Cooey v. Strickland, No. 09-4300

District court's order staying defendant's execution, based on preexisting litigation related to challenges to Ohio's method of execution including challenges stemming from the State's use of a three-drug protocol and its difficulty accessing usable veins in prior executions, is vacated as any challenge to Ohio's three-drug execution protocol is now moot because such procedure will not be utilized on defendant, and no basis exists for continuing the stay previously in effect. 

Read Cooey v. Strickland, No. 09-4300

Appellate Information

Decided and Filed: November 25, 2009

Judges

Per Curium Opinion

US v. Simmons, No. 07-3449

Defendant's sentence of 116 months' imprisonment for possession of more than five grams of crack cocaine with intent to distribute and for being a previously convicted felon in possession of a firearm is affirmed and remanded where, although the district court's sentencing was procedurally and substantively adequate, the Guidelines have since been revised to lower the range for certain crack offenses and defendant may be eligible for a sentencing reduction.     

Read US v. Simmons, No. 07-3449

Appellate Information

Argued: December 3, 2008

Decided and Filed: November 23, 2009

Judges

Opinion by Circuit Judge Boggs

Counsel

For Appellant:   Steven S. Nolder, Federal Public Defender's Office

For Appellee:  Benjamin C. Glassman, Assistant US Attorney

US v. Petrus, No. 08-1706

Defendant's sentence to 70 months' imprisonment for conspiring to possess with intent to distribute illegal drugs is affirmed where: 1) the district court did not commit any significant procedural error in imposing defendant's sentence and the sentence was procedurally reasonable; and 2) considering the totality of the circumstances, including the Guidelines, the section 3553(a) factors, the nature of the offense, defendant's family situation, his immigration status, his lack of criminal history, and defendant's asserted attempt to cooperate with the government, the 70 month sentence is substantively reasonable.     

Read US v. Petrus, No. 08-1706

Appellate Information

Argued: July 28, 2009

Decided and Filed: November 23, 2009

Judges

Opinion by  District Judge Sargus

Counsel

For Appellant:   Mark J. Kriger, LaRene & Kriger, PLC.

For Appellee:  Jennifer J. Sinclair, Assistant US Attorney

US v. Hardy, No. 08-5421

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

US v. Thompson, No. 08-3760

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

White v. Howes, No. 08-1458

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

Longaberger Co. v. Kolt, No. 08-4432

District court's grant of summary judgment for plaintiff, an ERISA governed, self-funded employee welfare benefit plan, for seeking to enforce the terms of the Plan's reimbursement provisions against the defendant and his client is affirmed where: 1) the district court correctly granted plaintiff equitable restitution as authorized by section 502(a)(3) of ERISA; 2) defendant's judicial estoppel argument fails as it is not applicable where a party argues an inconsistent position based on a change in controlling law; 3) district court ruled correctly that plaintiff's Plan was self-executing and that the Plan language provides for an automatic and valid lien on the settlement funds to the extent of the benefits defendant's client received from the Plan; and 4) defendant is obligated to reimburse the Plan from the funds he received from liable third parties and his decision to commingle these funds and not maintain them intact does not prevent enforcement of plaintiff's equitable lien by agreement under the terms of its ERISA plan.   

Read Longaberger Co. v. Kolt, No. 08-4432

Appellate Information

Argued: October 14, 2009

Decided and Filed: November 16, 2009

Judges

Opinion by Circuit Judge  Griffin

Counsel

For Appellant:  George H. Carr, Gallagher Sharp, Cleveland, Ohio

For Appellee:    Daran Paul Kiefer, Kreiner & Peters Co. LPA, Cleveland, Ohio

In re: Nowak, No. 08-3690

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

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

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

Johnson v. Sherry, No. 08-1322

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

Eddleman v. McKee, No. 08-1093

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

US v. Schaffer, No. 09-3053

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

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

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

Chontos v. Berghuis, No. 08-1031

In habeas proceedings arising following the imposition of a 40-year maximum sentence and a 225-month minimum for first-degree criminal sexual conduct involving a person under the age of thirteen and various other offenses, denial of the petition is affirmed where: 1) there was no jury-trial right violation because judge-found facts did not increase defendant's sentence beyond the statutory maximum for Apprendi purposes; and 2) the district court properly rejected defendant's claim that the trial court violated his Fifth and Sixth Amendment rights by sentencing him more harshly for insisting on going to trial and for not explicitly admitting his guilt. 

Read Chontos v. Berghuis, No. 08-1031

Appellate Information

Argued: June 11, 2009

Decided and Filed: November 10, 2009

Judges

Opinion by Circuit Judge Cook

Counsel

For Appellant:  Rosemary Gordon Panuco, Law Office, Tucson, Arizona

For Appellee:  Janet A. Van Cleve, Michigan Attorney General's Office, Lansing, Michigan

Shaya v. Holder, No. 08-4619

An Iraqi petitioner's request for review of BIA's denial of his application for asylum and related relief is vacated and remanded as the immigration judge never made a finding of fact regarding the length of time that petitioner actually served in prison for his assault conviction, and should he be found to have served less than one year in prison, he should be held not to be an aggravated felon and not removable.     

Read Shaya v. Holder, No. 08-4619

Appellate Information

Argued: October 6, 2009

Decided and Filed: November 9, 2009

Judges

Opinion by Circuit Judge Martin

Counsel

For Appellant:  John W. Blakeley, United States Department of Justice, Washington, DC.

For Appellee:  Mark Jacob Thomas, Mark Jacob Thomas & Associates, Chicago, Illinois.

Playa Marel, P.M., S.A. v. LKS Acquisitions, Inc., No. 08-3072

In plaintiffs' declaratory judgment action claiming that defendants were not entitled to compensation under an alleged contract involving real estate development, summary judgment for plaintiffs is vacated and remanded as there is no federal subject matter jurisdiction over the case because the only federal issue in the case arises as a possible defense to a state law claim.  Furthermore, this conclusion is not altered by the fact that the statute at issue is the Securities Exchange Act, nor is this a case where a state law claim necessarily raises a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.     

Read Playa Marel, P.M., S.A. v. LKS Acquisitions, Inc., No. 08-3072

Appellate Information

Argued: October 16, 2009

Decided and Filed: November 9, 2009

Judges

Opinion by Circuit Judge Rogers

Counsel

For Appellant:  Jeffrey Joseph Harmon, Cors & Bassett, LLP., Cincinnati, Ohio

For Appellee:  Walter Reynolds, Porter Wright Morris & Arthur LLP., Dayton, Ohio

Al-Ghorbani v. Holder, No. 08-3376

Petitioners' request for review of BIA's denial of their application for asylum and related relief from being returned back to Yemen is denied in part and granted in part where: 1) the portion of the petition regarding asylum is denied as the court lacks jurisdiction to review whether an IJ failed to afford the petitioners due process by not excusing the untimeliness of their applications; 2) petitioners' due process arguments with respect to the IJ's denial of their applications for asylum are without merit; and 3) request for review of the portion of the petition requesting the withholding of removal is granted as the record contains ample evidence that the General will kill the petitioners if they are returned to Yemen and nothing in the record suggests that conditions in Yemen have changed such that the government there will now be able to control the powerful General.     

Read Al-Ghorbani v. Holder, No. 08-3376

Appellate Information

Argued: October 15, 2009

Decided and Filed: November 9, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:  Richard A. Kulics, Reza Athari & Associates, Murray, Utah.

For Appellee:  David V. Bernal, Lance L. Jolley, United States Department of Justice, Washington, DC.

Jones v. Byrnes, No. 08-1889

In plaintiff's 42 U.S.C. section 1983 action against two police officers on behalf of the estate of her husband arising from a high speed chase of armed robbery suspects that killed her husband in an automobile crash, summary judgment in favor of the defendant police officers is affirmed where: 1) the estate did not establish a prima facie case of deprivation of the husband's substantive due process rights as officers' actions of trying to apprehend what they reasonably believed to be dangerous criminals do not shock the conscience; and 2) in the alternative, even if the officers' actions did rise to the level of violating the husband's constitutional rights, it was not clearly established at the time of the incident that actions of that sort crossed the constitutional line. 

Read Jones v. Byrnes, No. 08-1889

Appellate Information

Argued: October 9, 2009

Decided and Filed: November 9, 2009

Judges

Per Curium Opinion

Counsel

For Appellant:  Joel B. Sklar, Law Office, Detroit, Michigan.

For Appellee:  Joseph Nimako, Cummings McClorey Davis & Acho, PLC., Livonia, Michigan

Friends of Tims Ford v. Tennessee Valley Auth., No. 08-5706

In plaintiff's suit against the defendant for violations of the National Environmental Policy Act of 1969 (NEPA) in land development near a reservoir and the environmental impact of increased boating on, and community use of, reservoir water, dismissal of the case without prejudice is affirmed as plaintiff failed to demonstrate standing to bring its claim alleging ongoing harm to its members' aesthetic and recreational enjoyment of the reservoir. 

Read Friends of Tims Ford v. Tennessee Valley Auth., No. 08-5706

Appellate Information

Argued: June 17, 2009

Decided and Filed: November 6, 2009

Judges

Opinion by Circuit Judge Keith

Counsel

For Appellant:  Gregory D, Buppert, Dodson Parker Behem & Capparella, PC., Nashville, Tennessee.

For Appellee:  Elizabeth P. McCarter, Office of the Tennessee Attorney General, Nashville, Tennessee. 

Ferro Corp. v. Cookson Group, PLC, No. 08-3624

In plaintiff's suit against defendant for breach of its duty to defend and indemnify arising from antitrust lawsuits brought against plaintiff, summary judgment for defendants and dismissal of all of plaintiff's claims is affirmed as there are no allegations made against plaintiff in the antitrust complaints or amended complaints based on principles of successor liability, and the antitrust cases do not state claims that potentially or arguably fall within the purview of the asset purchase agreement duty to defend.      

Read Ferro Corp. v. Cookson Group, PLC, No. 08-3624

Appellate Information

Argued: June 19, 2009

Decided and Filed: November 6, 2009

Judges

Opinion by Circuit Judge Marbley

Counsel

For Appellant:  James B. Niehaus, Frantz Ward, LLP., Cleveland, Ohio

For Appellee:  Roxann E. Henry, Howrey LLP., Washington, DC

Webb v. Mitchell, No. 06-4606

In a capital habeas case involving a petitioner convicted of aggravated murder of his son and sentenced to death, denial of the petition is affirmed where: 1) defendant's Brady claim is rejected as there is no reasonable probability that, had a certain police report been disclosed, the outcome would have been different; 2) defendant's ex post facto and due process violation claims are rejected; 3) defendant's ineffective assistance of counsel during the penalty phase claim is rejected; 4) defendant's Fifth Amendment violation claim based on prosecution's comment on his failure to testify is rejected; and 5) district court did not err in concluding that defendant procedurally defaulted two of his ineffective assistance of counsel claims. 

Read Webb v. Mitchell, No. 06-4606

Appellate Information

Argued: June 10, 2009

Decided and Filed: November 5, 2009

Judges

Opinion by Circuit Judge Sutton

Counsel

For Appellant:  Keith A. Yeazel, Law Office, Columbus, Ohio

For Appellee:  Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio

Memphis Biofuels, LLC. v. Chicksaw Nation Indus., Inc., No. 08-6145

In plaintiff's case against the defendants for repudiating an agreement whereby defendant was to deliver diesel fuel and soybean oil to plaintiff's refinery facility, dismissal of the suit for lack of subject matter jurisdiction is affirmed as the defendant, a federally chartered tribal corporation, enjoys tribal-sovereign immunity.   

Read Memphis Biofuels, LLC. v. Chicksaw Nation Indus., Inc., No. 08-6145

Appellate Information

Argued: October 6, 2009

Decided and Filed: November 4, 2009

Judges

Opinion by Circuit Judge Cole

Counsel

For Appellant:  John R. Branson, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC., Memphis, Tennessee.

For Appellee:  Donna Brown Jacobs, Butler, Snow, O'Mara, Stevens & Cannada, PLLC., Jackson, Mississippi.

Chappell v. City of Cleveland, No. 08-4456

In plaintiff-administratrix's case against the officers for the deadly shooting of a fifteen year-old in his bedroom while executing a search warrant of his home, district court's denial of officers' motion for summary judgment based on qualified immunity is reversed and remanded as the record supports the conclusion that the material facts are not genuinely disputed and, as a matter of law, officers' split-second decision to use deadly force in self-defense was not shown to have been objectively unreasonable. 

Read Chappell v. City of Cleveland, No. 08-4456

Appellate Information

Argued: October 6, 2009

Decided and Filed: November 4, 2009

Judges

Opinion by Circuit Judge McKeague

Counsel

For Appellant:  Stephen W. Funk, Roetzel & Andress, Akron, Ohio

For Appellee:  Terry H. Gilbert, Friedman & Gilbert, Cleveland, Ohio

Bridgeport Music, Inc. v. UMG Recordings, Inc., No. 07-5596

In plaintiff's copyright-infringement case against defendant for infringement of its copyright on George Clinton's song, based on the use of the phrase "Bow wow wow, yippie yo, yippie yea", district court's finding that defendant willfully infringed plaintiff's rights in the song and an award of statutory damages of $88,980 are affirmed where: 1) the jury instructions were not erroneous as a matter of law; and 2) the district court did not abuse its discretion in declining to give the instructions requested by the defendant.   

Read Bridgeport Music, Inc. v. UMG Recordings, Inc., No. 07-5596

Appellate Information

Argued: April 23, 2009

Decided and Filed: November 4, 2009

Judges

Opinion by Circuit Judge Daughtrey

Counsel

For Appellant:  Jeffrey D. Goldman, Mitchell, Silberberg & Knupp, LLP, Los Angeles, California.

For Appellee:  Richard S. Busch, King & Ballow, Nashville, Tennessee.

Johnson v. Mitchell, No. 00-3350

District court's conviction of defendant for aggravated robbery and aggravated murder and sentence of death is affirmed in part as to the conviction, but reversed in part as to the sentence where petitioner's trial attorney did not provide his client with effective assistance of counsel during the penalty phase of a second trial, specifically, by failing to meaningfully investigate and to present any mitigation evidence. 

Read Johnson v. Mitchell, No. 00-3350

Appellate Information

Argued: December 6, 2007

Decided and Filed: November 4, 2009

Judges

Opinion by Circuit Judge Daughtrey

Counsel

For Appellant:  Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, Ohio

For Appellee:  Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio

US v. Rosenbaum, No. 08-1339

District court's imposition of a statutory maximum of 120 months' imprisonment on a defendant convicted of conspiracy to defraud the U.S. and to harbor illegal aliens, and of harboring more than one hundred illegal aliens, is affirmed where: 1) there was no error in district court's denial of government's 5K1.1 motion to reduce defendant's sentence, as the court found it significant that defendant had not begun cooperating until after one of his co-defendants had agreed to cooperate and found that bulk of his cooperation to be incomplete at the time of sentencing; and 2) defendant's sentence is presumed reasonable as it was within the advisory Guidelines range. 

Read US v. Rosenbaum, No. 08-1339

Appellate Information

Argued: October 8, 2009

Decided and Filed: November 3, 2009

Judges

Opinion by Circuit Judge Martin

Counsel

For Appellant:  Kenneth P. Tableman, Kenneth P. Tableman, PC., Grand Rapids, Michigan

For Appellee:  Hagen W. Frank, Assistant U.S. Attorney, Grand Rapids, Michigan

Sec'y of U.S. Air Force v. Commemorative Air Force, No. 08-4084

In United States Air Force's (USAF) suit against Commemorative Air Force (CAF) for breach of contract, replevin, and a declaratory judgment that it violated the terms of a 1996 donation certificate concerning an F-82 aircraft, district court's order granting summary judgment in favor of plaintiff and denying CAF's motion for summary judgment is affirmed, as there is no genuine issue of material fact that CAF's attempt to trade the F-82 violated the terms of the 1996 donation certificate, which called for title to revest in the USAF if CAF no longer desired to return the aircraft. 

Read Sec'y of U.S. Air Force v. Commemorative Air Force, No. 08-4084

Appellate Information

Argued: October 14, 2009

Decided and Filed: November 2, 2009

Judges

Opinion by Circuit Judge Rogers

Counsel

For Appellant:  Garry L. Montanari, Michealis, Montanari & Johnson, PC., Westlake Village, California.

For Appellee:  Patrick D. Quinn, Assistant United States Attorney, Dayton, Ohio.