U.S. Sixth Circuit: March 2010 Archives
U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

March 2010 Archives

Denial of Death-row Inmate's Petition for Habeas Relief Upheld

Sneed v. Johnson, No. 07-3349, involved a challenge to the district court's denial of a death-row inmate's petition for habeas relief. 

As stated in the decision: "In the present case, Sneed's counsel produced 17 witnesses, including three psychological experts, at least some of whose testimony concerned Sneed's mental health and severely troubled childhood."

In rejecting defendant's ineffective assistance claim that his counsel failed to investigate a possibility that he suffered from brain damage, the court concluded that he has failed to show that the state court's application of Strickland was objectionably unreasonable.  Moreover, although the defendant may be right that the district court got the insanity-defense standard wrong, his claim is nonetheless meritless because he is wholly unable to prove prejudice. 

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US v. Mardis, No. 09-5696, involved a district court's denial of defendant's motion to dismiss a federal indictment for civil rights murder of an enforcement officer and related crimes, claiming a violation of the Double Jeopardy Clause because the federal indictment was brought subsequent to defendant's nolo contendere plea on a related charge in state court.

As stated in the decision: "Here, however, the cooperation and coordination was less than that which took place in Bartkus, which the Supreme Court found not to constitute a sham prosecution.  The agencies cooperated substantially in their investigations of the crimes and appear to have coordinated the timing of their prosecutions.  While federal and state authorities cooperated in the investigation of Wright's disappearance, this is an admirable use of resources that the courts have found not to be problematic."

Thus, the court held that the facts of the case does not rise to the level of a sham prosecution so as to qualify for the exemption to the dual sovereignty doctrine and rejected the defendant's argument that the doctrine is against public policy. 

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Denial of Withholding Relief Based on Claimed Political Persecution Upheld

Pablo-Sanchez v. Holder, No. 09-3301, involved a Mexican family's petition for review of a BIA decision denying withholding of removal.

The circuit court denied the petition finding that the BIA permissibly determined that petitioner-husband did not suffer mistreatment on account of his political opinions (petitioner was a former Green Party candidate for a seat in Mexico's Congress).

The circuit court explained, in part:

"Even if we accept Pablo-Sanchez's credibility for the sake of argument, he cannot show that the evidence compels us to conclude that his past mistreatment was on account of his political opinion...The sole link between Pablo-Sanchez's political opinions and the assaults and threatening phone calls was a deep and strident voice he thought he recognized from one of his campaign rallies 18 months earlier. Inferring a motive from this kind of evidence requires several inferential leaps that strain the boundaries of circumstantial evidence. More to the point, any inferences we might draw from this effort at voice identification turn on permissible inferences, not mandatory ones.

Even if we assumed that Pablo-Sanchez's harasser and the campaign rally heckler were one and the same, we still would have to infer that he assaulted and robbed Pablo-Sanchez out of political animus. That must be the case, Pablo-Sanchez says, because he "had no other enemies." A.R. 182. But one does not need an enemy to be the victim of a robbery. One needs money...."

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In Elgharib v. Napolitano, No. 09-3029, the circuit court was faced with an appeal from a dismissal of a petition for a writ of prohibition challenging an in absentia removal order based on lack of jurisdiction under 8 U.S.C. section 1252(a)(5) & (g).

Petitioner argued that "[section] 1252 does not apply in this case because she has no other remedy available as a noncitizen, that the district court should not be foreclosed from adjudicating her constitutional claim, and that her action is not against the 'Attorney General' under the literal terms of § 1252(g)."

The circuit court affirmed, as an alien's petition for a writ of prohibition that directly challenges his or her final order of removal on constitutional grounds is subject to the jurisdictional bars in 8 U.S.C. section 1252(a)(5) and (g), and general federal-question subject matter jurisdiction is not available in the district court under 28 U.S.C. section 1331.

Contrary to petitioner's claim, the Constitution qualifies as "any other provision of law (statutory or nonstatutory)" under all subsections of section 1252.   

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Economic Damages Award in FTCA Suit Rejected Due to State No-Fault Law

In Premo v. US, No. 09-1426, the circuit court dealt with an appeal in an action brought against the government arising from injuries sustained by plaintiff when she was struck by a USPS postal truck.

The district court below had found that, pursuant to the Federal Tort Claims Act, Michigan state law (in this case the Michigan No-Fault Automobile Insurance Act) applies to plaintiff's claim for personal injury benefits. The circuit court affirmed this ruling, rejecting plaintiff's claims that "...Michigan's No-Fault Act should not apply for three reasons: (1) "the Government failed to timely raise [the] No-Fault [statute] as an affirmative defense, and it should not have been permitted to rely on the argument without first obtaining leave to amend its pleadings"; (2) "in order to avoid diverse treatment of federal interests in the several states" and avoid running afoul of federal supremacy; and (3) "the Government must be estopped from relying on the No-Fault statute in this case, because it officially maintained that the statute did not apply (under the Constitution's Supremacy Clause) for more than a year before inexplicably requesting that No-Fault law be applied."

However, a grant of economic damages to plaintiff is reversed where, because the government can be held liable without a finding of fault pursuant to the No-Fault Act (i.e. it is a strict liability law), plaintiff cannot recover economic damages under the FTCA. Lastly, a determination that plaintiff was not entitled to interest and attorneys' fees is affirmed.

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No Bar on Retrial of Defendant For Murdering Wife

In Girts v. Yanai, No. 08-4592, the Sixth Circuit faced a challenge to the district court's decision to grant an unconditional writ but not to bar retrial for the third time, following two overturned convictions due to prosecutorial misconduct. 

As stated in the decision: "The court has noted three situations where federal courts have barred retrial of successful habeas petitioners: (1) where the act of retrial itself would violate the petitioner's constitutional rights, for example, by subjecting him to double jeopardy; (2) where a conditional writ has issued and the petitiioner has not been retried within the time period specified by the court; and (3) where the petitioner had served extended and potentially unjustifiable periods of incarceration before the writ was granted."

In rejecting defendant's argument that extraordinary circumstances exist to bar retrial, mostly by relying on the second situation, the court concluded that the failure to retry defendant within 180 days was not a violation of the conditional writ and it clearly provides that he could either be retried or released, and here, defendant was released once the district court determined that the government was out of time.  Thus, district court was not found to have erred in concluding that the delay following defendant's successful heabeas petition rises to the level of "extraordinary circumstances."

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In US v. Stout, No. 08-6025, the Sixth Circuit faced a challenge to the district court's imposition of a 300 month sentence on remand, on a defendant convicted of possessing and distributing both crack and powder cocaine. 

 In rejecting defendant's arguments that the district court erred in basing its relevant conduct finding on unreliable statements and that additional evidence of relevant conduct should not have been admissible because the district court was operating on limited remand, the court affirmed the sentence in holding that the original order remanding the case did not contain any language limiting the district court to the original record and the statements relied upon by the district court in determining defendant's relevant conduct were supported by indicia of reliability. 

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In Villagarcia v. Warden, Noble Corr. Inst., No. 07-3619, the Sixth Circuit addressed the district court's grant of habeas relief to a defendant's challenge to his sentence for child endagerment and felonious assault convictions. 

In concluding that defendant's sentence violates Blakely and Apprendi and that the defendant has established that the state court's decision involved an unreasonable application of clearly established federal law and satisfied the AEDPA standard, the court also concluded that the constitutional error was no harmless. 

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The Sixth Cirucit decided two criminal matters and a bankruptcy case involving the issue of whether portion of creditor's secured claim attributable to the payoff of negative equity qualifies for protection from cramdown.

In US v. Algee, No. 08-3196, the court faced a former postal employee's challenge to this conviction for making false oral and written statements in an investigation of irregularities with the amount of money and stamps in vending machines.  In affirming the conviction, the court rejected defendant's contention that there was insufficient evidence to support the conviction for making false statements and also rejected his evidentiary claims that admission of evidence regarding the circumstances of the "integrity test" was an abuse of discretion.  Lastly, although the court concluded that the district court violated Rule 30(b) when it provided jury instructions to the defense only seconds before prosecution's closing argument, the court held that defendant did not suffer prejudice sufficient to warrant a retrial.

In Miller v. Brunsman, No. 09-3151, the court dealt with defendant's request for habeas relief for his aggravated murder and robbery convictions.  In denying the petition, the court held that the evidence offered by the defendant in support of his claim that a third party committed the offenses failed to show sufficient nexus between that third party and the murder victim.  Furthermore, the state court's exclusion of this evidence was not an unreasonable application of clearly established federal law. 

In In Re: Westfall, No. 08-4530, the court addressed the issue of whether the protection from "cramdown" offered by the hanging paragraph of 11 U.S.C. section 1325(a) applies to the portion of a creditor's secured claim attributable to the payoff of negative equity in a trade-in-vehicle.  In answering that it does, the court reversed the decision of the district court in holding that the negative equity financing constitutes a purchase money obligation under the UCC and the associated security interest satisfies the UCC's definition of a purchase money security interest. 

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The Sixth Circuit decided two criminal cases involving challenges to the Speedy Trial Act violation and an order requiring a defendant released on parole to provide DNA samples.

In US v. Turner, No. 07-3481, the court faced a challenge to a defendant's convictions for seven drug and gun-related crimes.  Defendant argued that his indictment on two of seven counts took longer than allowed under the Speedy Trial Act, as he was arrested on June 1, 2005 but not indicted until January 18, 2006.  In agreeing with the defendant, the court held that the convictions for being a felon in possession of a firearm and being a felon in possession of ammunition must be reversed as defendant has established a violation of the Speedy Trial Act and the government has not shown that any exclusion under the Act applies.  However, the remainder of defendant's convictions are affirmed and on remand, the district court may determine whether to dismiss the two charges at issue with or without prejudice.

In US v. Coccia, No. 08-1915, the court faced a challenge to the district court's judgment that defendant continue his supervised release and provide a DNA sample for violating a term of his supervised release.  Other than arguing that the district court erred in finding that he had violated the terms of his supervised release, the defendant's main argument was that requiring to provide DNA samples violated the Ex Post Facto Clause.  In rejecting both of defendant's contentions, the court held that there was sufficient evidence on the record showing that defendant violated terms of his release, and the DNA Act is not so punitive in effect as to override its regulatory purpose. 

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The Sixth Circuit decided two criminal cases involving ineffective assistance of counsel claim and a challenge to a denial of application of the safety valve sentencing provision.

In Thompson v. Warden, Belmont Corr. Inst., No. 08-3743, the court faced a challenge to the district court's conditional grant of defendant's habeas petition for his conviction of stealing a motor vehicle, possession of crack cocaine, carrying a concealed weapon and receiving stolen property, claiming ineffective assistance of counsel.  However, because the defendant failed to satisfy the deficient performance prong of Strickland, he cannot show that his counsel performed deficiently for failing to raise a Blakely claim.

In US v. Pena, No. 09-3073, the court addressed the district court's denial of defendant's request for application of the "safety valve" sentencing provision which permits a two-level reduction for certain defendants who fully cooperate with the government.  The defendant claimed that he did not give prosecution all the information he had regarding the drug trafficking offense for which he was convicted, because of his fears of retaliation.  However, the court rejected this argument and held that there is no such exception to the sentencing guidelines stating that a defendant cannot fully cooperate due to fear of retaliation.

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Law School Student's Claims Are Barred by Res Judicata

In Buck v. Thomas M. Cooley Law Sch., No. 09-1508, the Sixth Circuit faced a challenge to the district court's dismissal of plaintiff's lawsuit against her former law school under ADA and breach of various implied contracts, on the ground that the complaint was barred by res judicata.

As stated in the decision: "The allegations regarding defendant's treatment between 2002 and her second dismissal by the law school in 2006 are part of the same transaction - alleged misconduct and discriminatory animus by defendant towards her as a law student - as the allegations giving rise to her first lawsuit.  Plaintiff alleged that defendant tried to deny her accommodations and otherwise interfered with her studies in her original complaint, her supplemental complaint, and her federal complaint."

Thus, in affirming the district court's dismissal of plaintiff's suit, the court held that she is precluded by res judicata from raising the claims in the present suit as she should have supplemented her complaint in state court with claims that arose during the pendency of that suit. 

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Defendant's Sentence for Kidnapping No Due Process Violation

In Montes v. Trombley, No. 08-2521, the Sixth Circuit faced a challenge to the district court's denial of defendant's petition for habeas relief claiming that his sentence of 30 to 60 years for kidnapping exceeded the statutory maximum. 

As stated in the decision: "Under Michigan law, a person convicted of violating the State's kidnapping statute may be punished by imprisonment for life or any term of years or a fine of not more than $50,000, or both.  The statutorily permissible punishments for kidnapping thus range from a monetary fine to life imprisonment."

Thus, the court held that defendant does not have a legal right to a lesser sentence and that the trial judge's sentencing of defendant to 30 to 60 years does not violate the due process protections of the Fifth and Fourteenth Amendments or the jury trial right of the Sixth Amendment. 

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The Sixth Circuit decided two criminal cases today, involving convictions for OxyContin-related crimes, and aiding and abetting money laundering. 

In  US v. Wallace, No. 07-2230, the court faced a challenge to a conviction for perjury, conspiracy to possess and distribute OxyContin and sentence of 78 months' imprisonment.  Followng a mistrial, the defendant was retried where the drug and perjury charges, stemming from the first trial, were tried together.

In affirming the conviction, the court rejected defendant's argument that district court erred in trying the two charges together as she waived her right to separate trials and suffered no constitutional harm.  Additionally, the court rejected defendant's claim that the district court erred in denying her Rule 29 motion for acquittal on the perjury count, as there was sufficient evidence to support that her statement in the first trial was false and material. 

However, the court vacated and remanded the case for resentencing in concluding that the sentence is procedurally unreasonable as the district court failed to comply with section 3553(c), which affected defendant's substantial rights. 

In US v. Bronzino, No. 08-1532, the court faced a challenge to the sufficiency of the evidence to support defendant's conviction for aiding and abetting money laundering. 

As stated in the decision: "To prove aiding and abetting, the government was required to establish two elements: (1) an act by Bronzino that contributed to the commission of the crime; and (2) the intent to aid in the commission of the crime. 

Here, the court found that defendant's involvement in and contribution to the unlawful activity was that of a "teacher" or "director," and acted as a catalyst behind the principal's structuring of the transaction to avoid the currency transaction reporting requirement.  Additionally, the intent element is established under 18 U.S.C. section 1956 as there is no dispute that defendant knew the casino chips that were in the principal's hands were proceeds of unlawful gambling. 

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Rulings re Double Jeopardy and Insurer's Reimbursement Claims

The Sixth Circuit decided a criminal case involving defendant's double jeopardy violation claim and an insurer's claim for reimbursement for settlement contributions.

In Colvin v. Sheets, No. 08-4353, the court faced a challenge to the district court's grant of defendant's request for habeas relief and reversal of a decision by the court of appeals and holding that there was no manifest necessity for a new trial.  In reversing the district court's decision, the court held that not only did the district court fail to abide by the deference required of Washington itself, but violated the AEDPA in concluding that the state court unreasonably applied Washington.

In Travelers Prop. Cas. Co. of America v. Hillerich & Bradsby Co., Inc., 09-5113, the main issues were whether the insurer was entitled to reimbursement for its settlement contribution from its insured and whether the disparagement was part of the underlying litigation at the time of the settlement.  In affirming the district court's decision, the court held that an insurer may seek reimbursement for settlement funds paid on claims later determined to be noncovered in the narrow circumstances posed in this case and in Blue Ridge.  Also, the district court did not err in finding that disparagement was not part of the underlying litigation at time of the settlement.

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The Sixth Circuit Court of Appeals decided a criminal case and a maritime shipping case.

In Fortis Corp. Ins. SA. v. Viken Ship Mgmt. AS, No. 08-4478, the court decided a maritime shipping case involving a claim for rust damage to steel coils caused by exposure to seawater.  In affirming the district court's judgment the court held that a ship manager charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel is not a "carrier" under the Carriage of Goods by Sea Act (COGSA), and as such, the one year statute of limitations does not bar the underlying suit.  The court also concluded that the district court's finding of negligence was not based on clearly erroneous factual findings.

In US v. Almany, No. 08-6027, the court faced a challenge to the district court's sentencing of a defendant convicted of drug and firearm related crimes. In remanding the case for resentencing, the court first addressed the issue of defendant's waiver of appeal and held that the district court committed plain error by failing to probe defendant's understanding of the appellate waiver provision of his plea agreement.  Next, the court held that the district court erred by sentencing defendant to both a five-year mandatory minimum under the firearm statute and a ten-year mandatory minimum under the drug statute.

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Ministerial Exception Does Not Bar Teacher's Discrimination Suit

In Equal Employment Opportunity Comm'n v. Hosanna-Tabor Evangelical Lutheran Church & Sch., No. 09-1134, the court faced a challenge to the district court's dismissal of a teacher's employment discrimination suit on the grounds that the court could not inquire into the teacher's claims of retaliation because they fell within the ministerial exception to the ADA. 

As stated in the decision: "In all, the record supports the district court's finding that activities devoted to religion consumed approximately forty-five minutes of the seven hour school day." 

Thus, in vacating the trial court's decision, the court held that the ministerial exception does not bar plaintiff's employment discrimination and retaliation claims. 

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In Urbina-Mejia v. Holder, No. 09-3567, the Sixth Circuit faced a challenge to the BIA's denial of petitioner's application for withholding of removal.

First, the court held that the IJ and BIA erred as a matter of law in finding that the petitioner was not a part of a particular gang, for which he could be subject to persecution should he be returned to Honduras.  Second, the court decided whether the petitioner presented enough evidence to show that he would be subject to persecution in Honduras.

Under the REAL ID Act of 2005, the agency determines that an applicant should provide corroborating evidence, despite a finding of credibility, corroborating evidence is required unless the applicant cannot reasonably obtain evidence.  In affirming the BIA's ultimate denial, the court concluded that the petitioner failed to show that evidence compelled a finding that he had sufficiently corroborated his testimony with evidence or that he had not committed serious nonpolitical crimes while a member of a gang.

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In Schreiber v. Moe, No. 09-1337, the Sixth Circuit faced a challenge to the district court's decision to grant in part, summary judgment in favor of the police officer in plaintiff's 42 U.S.C. section 1983 action.

As stated in the decision: "Moe learned from the 911 dispatcher that a caller claimed to have heard screaming and believed that Sarah was being beaten by her parents.  The caller climed to have heard on the telephone the altercation as it was occurring.  The caller asked to remain anonymous, which made it impossible for Moe or the dispatcher to assess the caller's credibility."

Thus, in affirming the district court's grant of defendant's motion for summary judgment on the claim of warrantless-entry, the court held that no reasonable jury could find that the officer violated the Fourth Amendment by entering plaintiff's home or by remaining inside as long as he did to ensure the safety of the daughter.  However, the court reversed the grant of summary judgment on the excessive force claim and held that the officer is not entitled to qualified immunity as he punched the plaintiff in the face serveral times when he was already restrained by handcuffs.

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In Asher v. Unarco Material Handling, Inc., No. 09-5158, the Sixth Circuit faced a challenge to the district court's dismissal of a suit, brought by a second group of past and present Wal-Mart employees', claiming  injuries caused by exposure to carbon monoxide gas in an enclosed freezer section of Wal-Mart Distribution Center. 

As stated in the decision: "[I]n urging Rule 15(c)'s applicability to their claims, the new plaintiffs concede significant ground.  They acknowledge that this court has on several occasions made blanket statements to the effect that amendments which add a party to the original suit cannot relate back for limitation purposes."

Thus, in upholding the district court's dismissal, the court concluded that the new plaintiffs have cited no authority permitting relation back to the filing date of the original plaintiffs' claims and that the district court did not err in holding that Kentucky's "discovery rule" did not apply to toll the statute of limitations.

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Ruling on AG's Interim Regulation Applying SORNA Retroactively

In US v. Utesch, No. 08-5828, the Sixth Circuit faced a challenge to the district court's denial of defendant's motion to dismiss his indictment for violating the Adam Walsh Sex Offender Registration and Notification Act of 2006 (SORNA). 

As stated in the decision: "On February 28, 2007, U.S. Attorney General Alberto Gonzalez issued an immediately effective interim rule applying SORNA to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of the Act.  The Attorney General promulgated this regulation without notice and comment and without a thirty-day advance publication of its final for, disposing of these requirements based on the good cause provisions of the APA."

In reversing the conviction, the court held that the interim rule did not make SORNA effective against defendant or any other defendants convicted before SORNA's enactment, as the interim rule became effective immediately before any of the procedures were carried out as required by the APA.  Moreover, the Attorney General provided affected parties no opportunity to participate in the crafting of the interim rule before it purported to take effect against them, and such procedural deficiencies were not harmless.

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Decision in Crime Victims' Rights Act Case

In In re: McNulty, No. 10-3201, the Sixth Circuit addressed the issue of whether plaintiff was a victim for the purposes of the Crime Victims' Rights Act, involving proceedings where defendant was charged with violating 15 U.S.C. section 1 by participating in a conspiracy to suppress and eliminate competition related to sales of packaged ice in certain areas. 

As stated in the decision: "the alleged harm to McNulty stemmed from his firing for refusing to participate in the conspiracy and his 'blackballing' from employment with packaged-ice companies until he stopped working with the government in exposing the conspiracy.  If proven, these would indeed be harms to McNulty, but they are not criminal in nature, nor is there any evidence that they are normally associated with the crime of antitrust conspiracy.

Thus, in affirming district court's dismissal, and denying plaintiff's petition for a writ of mandate, the court held that plaintiff is not a victim for purposes of the CVRA. 

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Ruling Requires Defendant to Pay for His Own Representation

In US v. Wilson, No. 08-6229, the Sixth Circuit faced a challenge to the district court's judgment ordering a defendant, acquitted of wire fraud and aiding and abetting false statements on another's tax returns, to pay $52,305 in monthly payments for costs of a public services defender.

As stated in the decision: "The court learned that Wilson had been staying at the 'historic Brown hotel' in downtown Louisville throughout the trial, at a cost of roughly $10,000, after turning down the government's offer of free accommodations.  Further inquiry revealed that, by early 2007, Wilson was not a traditional candidate for free legal services:  His income in 2007 totaled roughly $134,000; he lived in an exclusive section of San Francisco, where he paid $2300 per month in rent; he has no dependents; his discretionary income in 2007 allowed him to spend at least $18,000 on the kinds of restaurants and wineries not known for catering to indigents; and Wilson's friends had created a $44,000 fund to pay for his legal services in the case."

Thus, under the Criminal Justice Act, the district court did not abuse its discretion in ordering the defendant to pay for legal services. Or, as the court put it, "[h]appily for Wilson, the [defender's] fee was worth it, as he was acquitted on all charges. Unhappily for Wilson, the district court did not abuse its discretion in ordering him to pay for the representation."

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