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

May 2010 Archives

Defendant's Bank Fraud Conviction Affirmed

In US v. Yono, No. 09-1548, the Sixth Circuit faced a challenge to a conviction for bank fraud and related crimes and sentenced to twenty-four months' imprisonment, claiming that  his right against self-incrimination was violated when the district court failed to ensure affirmatively that he knowingly and voluntarily chose to testify on his own behalf.

In US v. Hughes, No. 08-6008, the Sixth Circuit faced a challenge to the district court's grant of defendant's motion to suppress evidence found in his car in a prosecution for being a felon in possession of a firearm. 

As stated in the decision: "In order for traffic stop to be permissible under the Fourth Amendment, a police officer must know or reasonably believe that the driver of the car is doing something that represents a violation of law."

In reversing in part the judgment, the court held that the district court erred in looking to the officer's subjective intent, rather than whether the officer objectively had probable cause to stop defendant for violating one of the traffic statutes or ordinances.  The court remanded the case for the district court to determine whether defendant's actions in stopping his car near or at the intersection objectively gave rise to probable cause that defendant had violated the parking to obstruct ordinance, and whether, at the time of the stop, the officer knew or reasonably believed that defendant was in fact violating the law by parking to obstruct traffic, as prohibited by that same ordinance.     

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Kovacic v. Cuyahoga County Dep't of Children & Family Serv., No. 08-4656, concerned a suit brought by plaintiff-mother on behalf of herself and her minor children claiming that her constitutional rights were violated when social workers, aided by police officers, entered her home by force and removed her children.

In affirming the judgment of the district court in part, the court held that the district court correctly ruled that all of plaintiff's claims are time barred.  However, portion of the district court's judgment with respect to the children's claims is reversed as the claims by the children are not barred by Rooker-Feldman as their claims do not seek review or reversal of the decision of the juvenile court to award temporary custody to the state, but instead focus on the conduct of Family Services and of the social workers that led up to the juvenile court's decision to award temporary custody to the county.  

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Exclusion of Victim's Past Sexual Conduct Contrary to Crane

In Gagne v. Booker, 07-1970, the Sixth Circuit faced a challenge to the district court's grant of defendant's petition for a writ of habeas corpus in a conviction for criminal sexual misconduct on the ground that trial court's exclusion of certain evidence of victim's past sexual conduct violated defendant's due process rights to present a meaningful defense.

In stressing that its holding is fact-based in the extreme, the court wrote: "Under the circumstances present here, the exclusion of evidence of the complainant's consensual three-way sex with the defendant only a month before the subject incident, in a three-way rape case in which extensive evidence of the victim's sexual conduct had already been admitted at trial, and where the question of guilt or innocense turned almost entirely on the credibility of the victim's testimony regarding consent, was an unreasonable application of the principles set forth by the Supreme Court in Crane."

Thus in affirming the district court's grant of habeas relief, the court held that the Michigan Court of Appeals' exclusion of certain evidence of victim's sexual conduct deprived defendant of his constitutional right to a meaningful opportunity to present a complete defense as articulated by the Supreme Court in Crane.   

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In US v. Jimenez, No. 08-6435, the Sixth Circuit faced a challenge to the district court's imposition of a 30 month sentence upon a defendant convicted of illegally re-entering the U.S. from Mexico after having previously been deported following an aggravated felony conviction, claiming that her sentence was miscalculated because the district court relied on findings not supported by sufficient evidence.

In affirming the sentence, the court held that the district court did not commit procedural error by relying on evidence of prior convictions in assessing criminal history points.  Next, the court rejected defendant's claim that the district court's finding that she re-entered the U.S. in December 1997 and remained here continuously thereafter is not supported by a preponderance of the evidence.  Lastly, with respect to defendant's sentence, which is at the low end of the advisory sentencing guidelines range, is not substantively unreasonable.     

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In Bloemker v. Laborers' Local 265 Pension Fund, No. 09-3536, the Sixth Circuit faced a challenge to the district court's dismissal of plaintiff's claims in plaintiff's suit against his employer-sponsored ERISA plan an actuary, alleging breach of contractual agreement and other claims, arising from a notice of reduction in his monthly retirement benefits due to an incorrect calculation and requiring him to repay the excess he had received for nearly two years.  

In affirming in part and reversing in part the judgment of the district court, the court first held that the dismissal of plaintiff's equitable estoppel claim is reversed as he has alleged facts that could fulfill the requirements of traditional elements of estoppel.  However, the court affirmed the dismissal of plaintiff's claim for breach of fiduciary duty against the defendants, as well as the plaintiff's contract claim as the district court was correct to conclude that plaintiff cannot recover benefits under section 1132 of ERISA based on a modification of the plan or a separate supplemental contract. 

R.C. Olmstead, Inc. v. CU Interface, LLC, No. 09-3428, concerned a challenge to the district court's grant of summary judgment in favor of the defendant in a copyright and trade secret infringement suit brought by a provider of credit union software against the developer of a competing credit union software. 

In affirming the district court's decision, the court held that the district court did not abuse its broad discretion in refusing to compel additional discovery and plaintiff can point to no errors of fact or law in the court's denial of its employees access to defendant's software, including barring the use of an expert's report because the report failed to comply with the requirements of Fed. Rule of Civ. Proc. 26(a)(2)(B).  Furthermore, district court did not abuse its discretion in declining to impose a sanction on defendant because plaintiff was not left without a remedy for any harm caused by the third party's spoliation.  And lastly, defendant was entitled to summary judgment on the merits on the copyright infringement claims because plaintiff has not produced any direct evidence of copying and indirect evidence of copying was not sufficient to create a fact question as to whether copying occurred; and district court correctly held that plaintiff's end user product was not a trade secret because plaintiff did not take reasonable steps to maintain its secrecy. 

US v. Anderson, No. 08-6152, concerned a a conviction of an owner of a long-term healthcare facility for Medicaid fraud, district court's denial of defendant's motion to dismiss the indictment for duplicity, refusal to instruct the jury with instructions to cure the duplicity and post-trial motion to dismiss the indictment.  In affirming the judgment, the court held that the district court did not err in denying plaintiff's post-trial motion to dismiss the indictment for failure to state an offense as the indictment satisfied both of Hamling's requirements.  Furthermore, defendant's claim that 42 U.S.C. section 1320a-7(b) violates due process by failing to give fair notice of what it prohibits is without merit; and defendant's claim that the indictment is duplicitous is without merit, and thus the district court acted within in discretion in denying the jury instructions requested by defendant to cure the alleged duplicity. 

US v. Curry, No.08-1732, concerned a defendant's motion to modify or reduce his sentence below the bottom of the sentencing guidelines range of 73 months' imprisonment, pursuant to 18 U.S.C. section 3582(c)(2), following his conviction for being a felon in possession of a firearm.  In affirming the district court's denial of the motion, the court held that the district court applied the correct legal standard when it concluded that it had the discretion to entertain defendant's motion on the merits, and under the circumstances, the district court did not abuse its discretion in denying the defendant's motion for further modification of his sentence. 

US v. Lewis, No. 09-1162, concerned a challenge to a conviction of defendant for transporting a visual depiction of a minor engaged in sexually explicit conduct and sentenced to 151 months' imprisonment.  In affirming the conviction and the sentence, the court held that defendant's ineffective assistance of counsel claim is dismissed as facts are not sufficiently developed in the record for proper review.  Also, district court's denial of defendant's motion for a second ends of justice continuance as his motion to suppress the evidence seized pursuant to the authorized search is without merit, and thus, defendant cannot show that he was prejudiced by the denial of continuance so that he could file his suppression motion. Lastly, district court's application of a two-level sentence enhancement for his use of a computer to transmit the illicit images is affirmed. 

V Secret Catalogue, Inc. v. Victoria's Secret Stores, Inc., No. 08-5793, concerned Victoria's Secret's trademark "dilution by tarnishment" suit against a small retail store that sells sex toys and other sexually oriented products, pursuant to the Trademark Dilution Revision Act of 2006.  In affirming the judgment of the district court in favor of the plaintiff, the court held that the new Act creates a kind of a rebuttable presumption, or at least a very strong inference, that a new mark used to sell sex related products is likely to tarnish a famous mark if there is a clear semantic association between the two, and here, that presumption has not been rebutted. 

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In US v. Munoz, No. 09-5357, the Sixth Circuit faced a challenge to the district court's grant of defendant's untimely Rule 33 motion for a new trial, filed six months following his conviction for drug related offenses, but before sentencing after obtaining a new counsel. 

In reversing the district court's judgment granting a new trial the court held that, although the district court did not abuse its discretion in determining that defendant's untimely filing of his Rule 33 motion was the result of excusable neglect, defendant's former trial counsel's assistance more than met the minimum standard required by the Sixth Amendment.   

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Decisions in Criminal, Civil Rights, and Tax Law Matters

Worldwide Equip., Inc. v. US, No. 08-5950, concerned a plaintiff's suit for a refund of $119,302 in heavy-truck excise taxes it paid the IRS for the first quarter of 2004, related to the sale of certain models of coal-hauler dump trucks.  In vacating and remanding the district court's grant of defendant-government's motion for summary judgment on plaintiff's claim and on its counterclaim of $1,149,140 in excise taxes claimed to be due for the period from 1999 to early 2003, the court held that the government was not entitled to summary judgment on the basis of its argument that the truck model's primary function was dual use, as evidence submitted by plaintiff supports that, by design, the model's primary function is to haul coal off-highway.     

In Johnson v. Bell, No. 05-6925, Seventh Circuit faced a challenge to a denial of defendant's motions for equitable relief, following his conviction of murdering his wife and sentence to death.  The court affirmed the district court's denial of defendant's Rule 60(b) motion as defendant has not come forward with clear and convincing evidence that the prosecution presented intentionally false material to the the district court.  With respect to defendant's second Rule 60(b) motion, the court dismissed the motion as he failed to first obtain leave from the court to file a successive application.    

Fox v. Traverse City Area Pub. Sch. Bd. of Educ., No. 09-1688, concerned a former special-education teacher's First Amendment retaliation suit under 42 U.S.C. section 1983.  District court's grant of summary judgment in favor of the defendants is affirmed as the district court correctly determined that, under Garcetti, when the plaintiff complained to her supervisor about the number of students assigned to her supervision, she spoke as a public employee rather than a private citizen, and as such, her statements were not entitled to protection under the First Amendment.  

US v. Aguire, No. 08-5477, concerned a challenge to a conviction of defendant for possession with intent to distribute cocaine, and for possession of firearms in furtherance of a drug trafficking offense.  First, the court held that if a defendant has disclosed truthful information to demonstrate financial inability and obtain counsel under the Sixth Amendment, that information may not thereafter be admitted against him at trial on the issue of guilt, and here, the information disclosed by defendant in his financial affidavit was disclosed in order to obtain counsel, and the admission of the affidavit was error.  However, in ultimately affirming the conviction in this case, the court held that the error was not plain and reversal was not required.     

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In Eley v. Bagley, No. 06-4503, the Sixth Circuit faced a challenge to the district court's denial of a petition for a writ of habeas corpus by a defendant convicted of aggravated murder and aggravated robbery and sentenced to death. 

In affirming the district court's denial and dismissing the petition, the court held that the Ohio Supreme Court's finding that "the record fails to reveal sufficient indicia of incompetency" did not involve an unreasonable application of clearly established Supreme Court precedent.  Thre court then went on to reject defendant's claim that his counsel performed ineffectively by failing to investigate and present adequate mitigating evidence at the penalty phase as without merit.  And lastly, the court held that under Batson v. Bagley, any defect in the trial court's sentencing was cured by the appellate court's reweighing of the evidence presented on direct appeal.    

 Knisley v. Pike County Joint Vocational Sch., No. 08-3082 , concerned a challenge to the  denial of qualified immunity for defendants in a suit brought by eleven plaintiffs alleging that they and every other student in their high school nursing class were subjected to unconstitutional strip searches after students in the class reported that a credit card and other items were missing.

On remand from the United States Supreme Court, the district court's denial is affirmed as, Beard v. Whitmore Lake Sch. Dist. remains good constitutional law and because that law was clearly established at the time of the strip search in this case, precedent does not require a result contrary to that reached in Knisley I, as this circuit's clearly established case law on the issue put the school and its employees on notice that this search was unconstitutional.     

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Decisons in Civil Rights Suits, Plus a Criminal Case

Colvin v. Caruso, No.08-2441, concerned a challenge to the district court's grant of summary judgment against a plaintiff-inmate, in his section 1983 suit against multiple prison officials, claiming that a 16-day denial of kosher food, multiple mistakes in administering a kosher meal program, and lack of Jewish services and literature violated his constitutional rights and the Religious Land Use and Institutionalized Persons Act (RLUIPA). 

The court affirmed in part and vacated in part, the judgment of the district court as follows.  The court affirmed the district court's grant of summary judgment on plaintiff's RLUIPA claim as set forth in his complaint, as well as the grant of summary judgment on plaintiff's section 1983.  The court also held that it was not an abuse of discretion for the district court to deny plaintiff's discovery request.  However, the court vacated the district court's denial of plaintiff's motion to amend as it was an abuse of discretion to fail to address wrongful-removal and failure-to-reinstate claims that plaintiff brought in his proposed amended complaint.  And consequently, the district court's failure to rule on the second motion for a preliminary injunction was an abuse of discretion.     

Griffin v. Hardrick, No. 09-5757, concerned a plaintiff's section 1983 suit against a correction officer, raising an excessive force claim and a state-law claim for battery, arising from injuries she sustained while struggling with officers at a detention center following her arrest for disorderly conduct.  In affirming the entry of summary judgment in favor of defendants, the court held that, although this is a close case, no reasonable jury could find that defendant "evinced such wantonness as is tantamount to a knowing willingness" that plaintiff's injury occur.  Furthermore, there is no error in the district court's conclusion that because defendant was entitled to summary judgment on plaintiff's section 1983 claim, he was also entitled to summary judgment on her state-law battery claim.     

In US v. Thomas, No. 08-5239, the court faced a chllenge to a district court's denial of defendant's motion to suppress evidence that law enforcement agents seized from his trailer home during execution of a search warrant in a prosecution for manufacturing 100 or more marijuana plants and possession with intent to distribute.  The court affirmed the denial of motion to suppress as there was probable cause to support the issuance of a search warrant.  Furthermore, defendant's appeal of his sentence is dismissed to the extent that he knowingly and voluntarily waived his right to appeal it through his plea agreement.     

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Denial of Defendant's Motion for Return of Videotapes Vacated

In Savoy v. US, No.08-6240, the Sixth Circuit faced a challenge to the district court's partial denial of defendant's Fed. Rule of Crim. Proc. 41(g) motion for return of videos, whose subjects were adults who were not aware that they were being recorded, in a prosecution for child-pornography related charges. 

As stated in the decision: "The district court found that 'the tapes were made using a hidden camera, and the females were not aware that they were being taped in various stages nudity and/or performing sex acts,' but the court did not make an explicit finding as to whether the females were 'in a place where there is a reasonable expectation of privacy' as required under section 39-13-605."

Thus, the court vacated the district court's judgment with respect to the twenty videotapes at issue and remanded for the district court to make findings of fact that will enable it to determine whether, consistent with Fed. Rules of Crim. Proc. 41(g), defendant is entitled to lawful possession of the videotapes under Tennessee Code Ann. section 39-13-605.     

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Immigration Matter, Plus Suit Against Debt Collector Dismissed

In Hassan v. Holder, No. 09-3243, the Sixth Circuit dealt with a petition for review BIA's final orders in removal proceedings of a Palestinian Muslim couple, born and raised in Jerusalem, Israel.  In granting the petition, the court affirmed in part the decision of the BIA rejecting petitioners' claim that the IJ should have recused herself.  However, the judgment of the Board with respect to its ruling that the government met its burden of proving petitioners were married prior to their entry into the U.S. is reversed, and as such, the Board failed to provide a legally sufficient basis for finding petitioners removable.  Furthermore, the Board's finding that the husband was removable under 8 U.S.C. section 1227(a)(3)(D) is also reversed.   

Ruth v. Unifund CCR Partners, No. 09-3426, concerned a plaintiff's suit against a partnership specializing in debt collection, arising from an underlying suit brought by the partnership against plaintiff to collect a credit card debt allegedly owed to Citibank.  In rejecting the plaintiff's argument that the district court should not have dismissed her suit on statute of limitations grounds, the court upheld the dismissal as plaintiff failed to comply with the one-year statute of limitations and defendant did not fraudulently conceal any information that prevented plaintiff from filing her claim.   

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Summe v. Kenton County Clerk's Office, No. 09-5794, concerned challenge to the district court's grant of summary judgment for defendants on plaintiff's federal claims and dismissal of her state law claims in a suit against a county clerk alleging a claim of unlawful patronage dismissal in violation of the First Amendment, and against county claiming violation of her constitutional privacy rights by disseminating certain personnel records during the campaign in which she ran against and was defeated by the new county clerk for the position.

In affirming the district court's grant of summary judgment for defendants on plaintiff's patronage dismissal claim, the court held that under McCloud v. Testa, 97 F.3d 1536 (6th Cir. 1996), the position of Chief Deputy County Clerk in Kenton County, Kentucky, falls within the second and third McCloud exceptions to unlawful patronage dismissal.  The court also affirmed the district court's dismissal of plaintiff's substantive due process claim.  

In Terry v. Tyson Farms, Inc., No. 08-5577, the Sixth Circuit dealt with a poultry farmer's suit against Tyson Farms under the Agricultural Fair Practices Act of 1967 (AFPA) alleging unlawful interference and discrimination based on his membership in the grower's association, as well as claims under the Packers and Stockyards Act (PSA). 

In affirming the dismissal of plaintiff's complaint, the court held that the district court properly determined that plaintiff's complaint does not allege that Tyson's actions had an anticompetitive effect, and as such, it was not an error to grant Tyson's motion to dismiss the PSA claim.  Furthermore, plaintiff has failed to allege that Tyson's unlawful actions stem from his involvement with an AFPA-protected "association of producers."  Lastly, district court's award of attorney fees to Tyson is affirmed as plaintiff has forfeited his argument. 

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Decision in Pet Supply Manufacturer's Contract Dispute

In Profit Pet v. Arthur Dogswell, LLC, No. 09-1228, the Sixth Circuit faced a challenge to the district court's grant of plaintiff-pet supply manufacturer's motion for summary judgment in a contract dispute with its Midwestern sales representative. 

The court affirmed in part, reversed in part and remanded the matter.  First, the court affirmed the holding that a  valid notice required some reference to a breach with an opportunity for the plaintiff to cure, and here, because defendant failed to provide the required "good faith written notice" of breach or default, the termination of plaintiff was without cause.  Second, the court also affirmed the holding that plaintiff did not substantially breach the Agreement prior to termination.  However, the court reversed the district court's holding defendant liable to plaintiff for commissions on sales to "big-box" stores as the Agreement is ambiguous on this point, and, also reversed the district court's holding that the Michigan Sales Representative Commission Act (SRCA) applied to the "without cause" payment authorized in section 7.2 of the Agreement, as it was in error.     

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Dismissal of Prisoner's Section 1983 Suit Reversed

Flanory v. Bonn, No. 09-1161 concerned a pro se prisoner's section 1983 suit against various prison officials and others claiming violation of his Eighth Amendment right when he was placed on room restriction and lost his indigent status which caused him to be without toothpaste for almost one year, for his refusal to participate in a GED program, which he had already completed and obtained. 

In reversing the district court's dismissal of the complaint for failure to state a claim, the court held that plaintiff has made allegations which satisfy the objective and subjective components required for an Eighth Amendment violation as he has alleged that he was completely denied certain hygiene items and that he specifically was without toothpaste for a period of 337 days,  and he also alleged that defendants were aware that he was without toothpaste and were deliberately indifferent to his hygiene needs.     

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In Export-Import Bank of U.S. v. Advanced Polymer Sci., Inc., No. 09-3414, the Sixth Circuit faced a challenge to the district court's refusal to set aside the Export-Import Bank of the United States' confession of judgment against the obligor in the amount of $2,166,661.

In affirming the district court's judgment, the court held that a failure to assert the limitations period at the outset of litigation results in a waiver as a matter of course, and finding the defense waived at this later stage of the proceedings due to defendants' failure to timely assert the defense does not result in a substantial miscarriage of justice. 

The court also found that the guarantees are not fatally ambiguous because an arbitration provision does not facially conflict with the confession of judgment provision.    

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US v. Lazar, No. 08-5653, concerned a challenge to the district court's grant of a motion to suppress evidence seized from two medical offices, in a prosecution of the defendant-pediatric doctor for health care fraud and related crimes. 

First, the court held that the magistrate judge erred in concluding that  an attachment did not suffice to incorporate a patient list into the affidavit and warrants as a lack of formal incorporation by reference into the warrants does not justify a finding of facial insufficiency.  Next, the court vacated the district court's suppression of defendant's patient files and remanded with instructions to determine which list, if any, came before the issuing Magistrate judge, and to suppress only those patient files seized beyond the scope of such list as required under Groh v. Ramirez.

The court held that with respect to the non-patient file evidence, suppression was proper and rejected government's alternative theory of inevitable discovery.  Finally, the district court's finding that the warrants lacked probable cause to believe that the patients' medical records would be found in the defendant's medical offices is reversed as probable cause supported the warrants.     

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