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

July 2010 Archives

De la Paz v. Holder, 09-3229, concerned a Mexican citizen's petition for review of a reinstatement order by the Department of Homeland Security (DHS).  First, the court rejected the government's argument that the court lacks jurisdiction for review in holding that the petition is timely as it was filed 16 days after first obtaining the order. Next, the court rejected petitioner's sufficiency challenge as the 1996 document was an actual order and thus should be treated as the prior order of removal.  The court also held that petitioner's claim that the procedures employed to reinstate her exclusion order violated due process fails, and rejected petitioner's challenge to her underlying 1996 removal order for lack of jurisdiction.

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McQueary v. Conway, 09-5807, concerned a challenge to the  district court's denial of plaintiff's request for fees following dismissal of the lawsuit as moot after Kentucky repealed the challenged provisions of a Kentucky law, placing limits on protests at military funerals (six months after district court's grant of plaintiff's motion to enjoin enforcement of the law on a preliminary basis).  Plaintiff had challenged the validity of the Kentucky law, claiming that the law violated his free-speech rights. 

In reversing denial of fees, the court held that the district court's explanations for denying fees in this case do not hold up because, although caselaw makes clear that when a claimant wins a preliminary injunction and nothing more, that usually will not suffice to obtain fees under section 1988, what remains unclear is when the occasional exceptions to that rule should apply, and the district court must undertake a contextual and case-specific inquiry.

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US v. Faulkenberry, 08-4233, concerned a challenge to a conviction of defendant for securities fraud, wire fraud, money laundering, and conspiracies to commit these crimes.  In affirming in part, the court held that sufficient proof supported defendant's wire fraud, securities fraud, and  conspiracy to commit wire and securities fraud convictions.  However, the court reversed the judgment with respect to defendant's money laundering conviction as, to prove a violation of money laundering pursuant to section 1956(a)(1)(B)(i), it is not enough for the government to prove merely that a transaction had a concealing effect or that the transaction was structured to conceal the nature of illicit funds, but rather, what is required is that concealment be an animating purpose of the transaction.  Accordingly, the court reversed defendant's conviction for conspiracy to commit money laundering.  The court rejected defendant's remaining claims as meritless, and vacated and remanded defendant's sentence for resentencing.

US v. Lucido, 09-1410, concerned a challenge to the district court's denial of petitioner's motions to expunge all records of his federal money laundering charges and related proceedings held by the FBI, of which he was acquitted of eighteen years ago.  In vacating the judgment, the court held that the district court lacked jurisdiction to entertain petitioner's requests.  Thus, the matter is remanded for the district court to dismiss the motions for lack of jurisdiction.

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Spengler v. Worthington Cylinder, 08-3110, concerned a challenge to the district court's denial of defendant's Rule 50(b) motion and jury verdict in favor of the plaintiff, in plaintiff's age discrimination suit against his former employer under the Age Discrimination in Employment Act and Ohio's anti-discrimination statute.  In afirming, the court held that the district court did not err in allowing plaintiff's case to proceed to trial as the language in plaintiff's EEOC charge sets forth sufficient facts to put the EEOC on notice of plaintiff's retaliation claim despite his failure to check the "Retaliation" box on the charge.  The court held that plaintiff's judicial complaint set forth facts establishing a prima facie case of retaliation under the ADEA, and that the totality of the evidence in the record does not lead reasonable minds to but one conclusion in favor of the defendant on the retaliation claim.  Also, because plaintiff established the amount of his damages and defendant failed to prove by a preponderance of the evidence that plaintiff was not entitled to those damages, damages were properly awarded.  Lastly, the court held that the jury could have reasonably concluded that the supervisor's conduct was willful and therefore, liquidated damages were warranted.

City of Cleveland v., Ameriquest Mortgage Sec., Inc., 09-3608, concerned City of Cleveland's public nuisance suit against twenty-two financial entities, claiming that defendants are responsible for a large portion of the subprime lending market in Cleveland and nationally that led to a foreclosure crisis in Cleveland.  In affirming district court's judgment in favor of the defendants, the court held that the joint motion precludes Cleveland from now arguing that the district court should have remanded this suit, and the district court properly permitted this case to proceed in federal court.  The court further held that the connection between the alleged harm and the alleged misconduct it too indirect to warrant recovery.

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US v. Horn, 09-5090, concerned proceedings arising from defendant's motion for resentencing based on Guidelines Amendment 709, arguing that he was not a career offender under the amendment because his two prior robbery convictions would no longer count as separate offenses.  In reversing the district court's grant of the motion, the court held that the district court lacked the authority to resentence defendant because 18 U.S.C. section 3582(c)(2) and U.S.S.G. section 1B1.10 provide that the Commission's retroactivity determinations control whether district courts may resentence defendants and the Commission has not designated Amendment 709 for retroactive application.

US v. Hameed, 09-3259, concerned a challenge to the district court's denial of defendant's motion for a reduction of his sentence under 18 U.S.C. section 3582(c)(2), in a prosecution for conspiracy to possess with intent to distribute crack cocaine and for being a felon in possession of a firearm.  In affirming the denial, the court held that, although defendant's ultimate sentence was indeed "based on" the crack guidelines, and those regulations have since been lowered, they were not actually "applicable" to the departure he received pursuant to 18 U.S.C. section 3553(e) and U.S.S.G. section 5K1.1.

Paige v. Coyner, 09-3287, concerned a plaintiff's section 1983 suit against a county official and two county entities, claiming that defendants retaliated against her by calling for employer and saying false things about her after she raised concerns at a public hearing regarding a proposed interstate-highway project.  In reversing the district court's grant of defendant's motion to dismiss and sua sponte dismissal of the case against the remaining two defendants, the court held that the district court erred in dismissing plaintiff's claims under Rule 12(b)(6) by misapplying the Supreme Court's decision in Blum v. Yaretsky, 457 U.S. 991 (1982), as plaintiff has alleged all that she needs to in order to state a claim for relief under section 1983 against all three defendants.

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Decisions In Criminal Law Matters

US v. Street, 08-6242, concerned a challenge to the district court's affirmance of the magistrate judge's denial of defendant's motion to suppress in a prosecution for conspiring to possess and distribute methamphetamine and related crimes.  In affirming the conviction, the court held that the police did not violate the Fourth Amendment during the search and arrest of defendant, that no error occurred in the district court's substitution of an alternate juror in the midst of deliberations, and that a reasonable jury could conclude that defendant carried a firearm to facilitate the drug sale.

US v. Al-Cholan, 08-2532, concerned a challenge to a conviction of defendant for traveling in interstate commerce for the purpose of engaging in illicit sexual conduct in violation of 18 U.S.C. section 2423(b).  In affirming the conviction, the court held that defendant's entrapment defense fails because the evidence incontrovertibly establishes that he was predisposed to commit the offense.  The court rejected defendant's claim that the government's conduct was so outrageous that due process considerations would bar a conviction as meritless, as well as defendant's claim that the district court erred by refusing to suppress his post-arrest statements.  Lastly, the court held that district court did not err in rejecting the manufactured jurisdiction defense, or in imposing the sentence enhancement.

In re Siggers, 08-1214, concerned a defendant's request for authorization to file a second/successive habeas relief from his first-degree murder conviction.  In denying the request, the court held that, considering the strength of the evidence presented by the government at trial, defendant's allegations fail to establish a prima facie showing that the constitutional errors he alleges probably resulted in the conviction of an innocent person.

Awkai v. Mitchell, 01-4278, concerned a challenge to the district court's denial of defendant's petition for a writ of habeas corpus from his conviction for aggravated murder of his wife and brother-in-law and sentence to death.  In affirming the denial, the court held that defendant has not overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and therefore cannot satisfy Strickland's deficiency standard.  Further, even assuming that defendant had shown that the Supreme Court of Ohio's assessment of his counsel's effectiveness was unreasonable, he still cannot show that the court's conclusion that he had not satisfied the prejudice prong of the Strickland ineffective-assistance test was also unreasonable.  The court also held that defendant's counsel was not deficient in the presentation of mitigation-phase evidence, and rejected defendant's claim of prosecutorial misconduct as procedurally defaulted.

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Decisions In Criminal, Labor, and Bankruptcy Law Matters

US v. Allen, 09-5178, concerned a challenge to the district court's denial of defendant's motion to reduce and modify his sentence for his convictions for possession and intent to distribute over five grams of cocaine base and other related crimes.  In affirming the denial, the court held that the district court properly concluded that it lacked the authority in proceedings under section 3582(c)(2) to sentence the defendant below the bottom of the amended Guidelines range or to entertain a challenge under Booker to the court's calculation of the original Guideline range.

Merritt v. Int'l Ass'n of Machinists & Aerospace Workers, 09-1563, concerned a labor suit brought by Northwest Airlines Quality Service Agents (QSAs) against a labor organization and others, claiming that between 2000 and 2006 defendants breached their duty of fair representation relating to the negotiation and administration of contracts on behalf of QSA employees and in handling their dues-objector status requests.  In affirming the district court's grant of defendants' motion for summary judgment and an order issuing Rule 11 sanctions against the plaintiffs' counsel for failing to adequately investigate the law and facts before filing their complaint, the court held that the mere fact that the plaintiffs were a minority group within their union organization and were adversely affected by the actions of the union does not establish that the union acted with hostile or discriminatory intent.  Court also held that the plaintiffs have failed to submit any evidence that the defendant improperly handled the dues-objector status requests; and 3) Rule 11 sanctions were properly imposed.

In re: Darrohn, 09-5499, concerned the bankruptcy court's calculation of the debtors' projected disposable income in approving the proposed plan in Chapter 13 proceedings.  In reversing and remanding in light of the Supreme Court's recent decision in Hamilton v. Lanning, --S.Ct.---, 78 U.S.L.W. 4518, 2010 WL 2243704 (No. 08-998 June 7, 2010), the court held that the bankruptcy court erred when it determined that it was required to use the income calculated on Form B22C, which was derived from the six-month look-back formula, rather than debtors' current monthly income.  Court also held that the bankruptcy court erred in failing to account for the debtors' intent to surrender properties securing the mortgages in considering reasonable necessary monthly expenses.

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Bowers v. Wynne, 09-3566, concerned a challenge to the district court's dismissal of the complaint in a federal civilian employee's suit against the Secretary of the Air Force, claiming gender and disability discrimination as well as retaliatory termination. 

In affirmin the dismissal, the court held that the plaintiff's claim may not be brought because they arise from her position as an Air Force Reserve Technician (ART).  The court held that the district court did not err in concluding that the court's precedent in Fisher and Leistiko, which held that the National Guard technician position is irreducibly military in nature, also applies to ARTs.  Thus, the court is not convinced that the ART position is materially different from the position of National Guard technician such that ARTs could pursue remedies under Title VII or the Rehabilitation Act that are not available to National Guard technicians.  The court further held that, even if the court were to adopt the approach used in other circuits, plaintiff's claims would be barred because they challenge the conduct of supervisory military officers of superior rank, and thereby threaten intrusion into officer-subordinate relationships.

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Defendant's Sentence for Mail Fraud Conviction Vacated and Remanded

US v. Wilson, 08-1963, concerned a challenge to the district court's imposition of a 48-month sentence in a prosecution of defendant for mail fraud in violation of 18 U.S.C. section 1341.  In vacating and remanding for resentencing, the court held that the district court committed plain error by selecting defendant's sentence based on the clearly erroneous notion that she was responsible for the theft of fifteen hundred financial instruments.  The court also held that the district court's reliance upon plainly incorrect facts affected defendant's substantial rights because there is a reasonable probability that, without the incorrect reliance, she would have received a more favorable sentence.  Lastly, the court held that the district court's error, which implicated defendant's due process right not to be sentenced on the basis of material misinformation, jeopardized the fairness, integrity, and public reputation of the judicial proceedings.

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US v. Camacho-Arellano, 07-5427, concerned a challenge to the district court's imposition of a fifty-seven months' imprisonment in a conviction of a Mexican citizen for unlawful reentry into the U.S. after deportation.  The court vacated the sentence and remanded for resentencing, because defendant was sentenced before Kimbrough v. U.S. and because Kimbrough permits district court judges to impose a variance based on disagreement with the disparities created by the existence of "fast track" early-disposition programs for illegal-reentry cases in other jurisdictions.

Shaneberger v. Jones, 07-2211, concerned a challenge to the district court's denial of defendant's petition for habeas relief, challenging his conviction for felony murder and other convictions.  In affirming the denial of the petition, the court held that the state court was not unreasonable in holding that defendant had failed to demonstrate ineffective assistance of appellate counsel for not challenging the trial court's denial of motion to suppress custodial statements.  The court also held that, because defendant has demonstrated no reversible error in the district court's decision with respect to the suppression issue, it adopted the harmless error analysis of the district court with respect to the severance issue.

Children's Ctr. for Developmental Enrichment v. Machle, 09-3382, concerned a suit brought  by the parents of a minor disabled child against a private school and others for expelling their son.  In affirming the district court's decision following an administrator's final decision dismissing the school as an improper party to the action, the court held that the school has failed to state a claim upon which relief could be granted under the Individuals with Disabilities Education Improvement Act (IDEIA), and affirmed the State Level Appeals Officer's conclusion that the school's improper service claim was moot because all substantive claims against it were dismissed.  The court also held that the district court was correct in concluding that it was not authorized to award attorney's fees under either section 1988 or the Rehabilitation Act, and that the district court was correct in concluding that even though it has inherent authority to award attorney's fees in exceptional cases before it, the inherent authority of a court to award attorney fees applies only to those matters originally heard by that court.

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US v. Williams, 09-3521, concerned a challenge to the district court's conviction of a defendant for fraudulently overbilling Medicare, Medicaid, and several private insurance companies as an employee of a psychiatric medical practice, and a sentence of 12 months of probation and a restitution order in the amount of $822,459.21.  First, the court rejected defendant's challenge to the district court's deliberate-ignorance jury instruction and, dismissed defendant's ineffective assistance of counsel claim as it was premature.  Next, the court went onto hold that the district court did not err in ordering defendant to pay restitution and, that defendant failed to demonstrate that the district court plainly erred under the Due Process Clause when it entered the order of restitution against him.  However, given certain irregularities, district court's order of restitution is vacated and remanded so that the court may properly rule on defendant's upcoding argument under Rule 32(i)(3)(B).

US v. Siemaszko, 09-3167, concerned a challenge to a conviction of defendant for concealing material facts and making false statements to the Nuclear Regulatory Commission (NRC) in violation of 18 U.S.C. sections 1001 and 1002, arising from a safety incident at a nuclear power plant where defendant worked as a systems engineer.  In affirming, the court held that there was sufficient evidence to support defendant's convictions and, that defendant failed to establish that a constructive amendment of the indictment occurred.

US v. Geisen, 08-3655, concerned a challenge to a conviction of a defendant for concealing a material fact and making a false statement to the Nuclear Regulatory Commission (NRC) in violation of 18 U.S.C. sections 1001 and 1002, arising from a safety incident at a nuclear power station.  In affirming, the court held that the district court's deliberate-ignorance jury instruction was not improper as the government presented ample evidence from which a rational jury could infer that defendant deliberately chose not to inform himself in preparing the submissions to the NRC.  The court also held that there was sufficient evidence to support defendant's convictions and, that the district court did not err in excluding evidence of defendant's rejection of the deferred prosecution agreement (DPA).

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Hedge Fund Adviser Can Owe a Fiduciary Duty to Investors

In US v. Lay, 08-3892, the Sixth Circuit faced a challenge to a conviction of defendant for investment adviser fraud and multiple mail and wire fraud, related to a hedge fund investment by the Ohio Bureau of Workers' Compensation.

In rejecting defendant's argument that he owed no fiduciary duty, the court affirmed the convictions in holding that, because a hedge fund investor can in some circumstances have a fiduciary relationship with an investor, the jury instructions were correct and sufficient evidence supports defendant's conviction.  Furthermore, defendant's challenges to the district court's evidentiary rulings and its orders of restitution of $212 million and forfeiture of $590,526.23 are rejected.

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Treesh v. Bagley, 07-3524, concerned a challenge to the district court's denial of defendant's petition for habeas relief for his capital murder conviction.  In affirming the denial, the court held that it was not unreasonable for the Ohio Supreme Court to conclude that defendant knowingly and intelligently waived his Miranda rights, and that defendant has forfeited the issue of voluntariness as he has not developed a legal argument regarding the issue.  The court rejected defendant's assertion that he was denied the effective assistance of counsel when trial counsel failed to challenge two jurors for cause.  Lastly, the court held that defendant has not made a substantial showing of the denial of a constitutional right with respect to his claim that lethal injection as conducted in Ohio violates the Eighth Amendment.

Simpson v. Jackson, 08-3224, concerned a defendant's request for habeas relief from his convictions for murder and related crimes arising from a fatal arson.  The court held that, under the totality of the circumstances, habeas relief is denied as to a June 16th statement as he has not met his burden of showing circumstances so severe that there was a substantial risk that his will was overborne, and as such, the court held that defendant is not entitled to relief as to convictions for aggravated arson and five counts of felonious assault.. 

However, in granting the petition in part, the court held that the state court's admission of the June 20th statement was an unreasonable application of Supreme Court precedent, and that the April statements were admitted contrary to Supreme Court precedent as agents unaffiliated with the prison isolated defendant and questioned him about an unrelated incident without first giving Miranda warnings.  Therefore, in light of the strong role that the June 20th and April statements played in both the state's presentation of the case and the evidence against defendant, the court held that it is beyond question that the errors were not harmless as to the convictions that required as an essential element a specific intent to cause the death of another, and as such, his convictions for aggravated murder, murder, and attempted murder are void.  ;

Carey v. Wolnitzek, 08-6468, concerned a plaintiff's suit challenging certain clauses in the Kentucky Supreme Court's judicial canon related to judicial elections, claiming that the party affiliation, solicitation and commits clauses violated his speech and associational rights under the First and Fourteenth Amendments of the U.S. Constitution.  First, the court held that strict scrutiny applies to all three aspects of the First Amendment challenge in this case.  The court then went onto hold that the district court correctly concluded that the party affiliation clause violates the First Amendment on its face, as well as the conclusion that the solicitation clause is overbroad and thus invalid on its face.  However, the court vacated and remanded the district court's ruling on the commitment clause as it is not clear what the Commonwealth's position on the term "issues" is, and the district court has not yet explored these issues.

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Ferrans v. Holder, 09-3596, concerned a Colombian citizen's petition for review of a decision of the BIA finding him ineligible for relief from removal.  In denying the petition, the court held that the explicit reference to section 1324a in section 1227(a)(3)(D) makes it clear that private employment is a "purpose or benefit" under the Immigration and Nationality Act, and as such, a false representation of citizenship by an alien for the purpose of obtaining private employment is a "purpose or benefit" under the Act, done, at the very least, for the "purpose" of evading section 1324a's provisions.

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Drug Conspiracy Conviction Affirmed, Plus Immigration Matter

US v. Williams, 08-2070, concerned a challenge to a conviction of defendant for conspiracy to distribute cocaine.  In affirming the conviction, the court held that the circumstances of defendant's 2005 confession do not show involuntariness, and rejected defendant's claim that the district court violated Rule 404(b) of the Federal Rules of Evidence in admitting the confession.  Court also held that the jury had plenty of reasons to find defendant guilty, and that the evidence presented at trial did not depart from the conduct charged in the indictment.  Lastly, the court held that ample evidence supports the district court's finding defendant responsible for more than 150 kilograms of cocaine at sentencing.

Japarkulova v. Holder, 09-3583, concerned a Kyrgyz Republic's citizen's petition for review of the BIA's denial of her application for asylum.  In denying the petition, the court held that, although the Board erred by failing to provide a reasoned explanation for its conclusion that petitioner did not experience past persecution based on her claims that she received death threats from the president's security minister, the error was harmless.  Furthermore, substantial evidence supports the Board's conclusion that petitioner did not establish a well-founded fear of future persecution.

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In re Johnson, No. 08-5088, concerned a challenge to the Bankruptcy Appellate Panel's (BAP)judgment for the trustee and against the lender of the debtor's pick-up truck, in Chapter 7 proceedings.  In affirming the judgment of the BAP, the court held that the enabling loan exception of 11 U.S.C. section 547(c)(3) does not protect the lender's interest in the pick-up truck from avoidance as a preferential transfer because the perfection of the lender's security interest in the truck did not occur until March 7, 2005, when the security interest was actually noted on the certificate of title.

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Hurley v. Deutsche Bank Trust Co., Ams., No. 09-1964  concerned plaintiffs' suit against Deutsche Bank and others claiming violations of the Servicemembers' Civil Relief Act (SCRA), and state law claims of infliction of emotional distress, fraud and conversion, arising from the defendants' foreclosure of plaintiffs' home.  In affirming the district court's denial of defendants' motion to compel arbitration on the basis that they waived their right to enforce an arbitration clause against plaintiffs, the court held that the defendants took actions inconsistent with any reliance on the waiver provision and plaintiffs have suffered actual prejudice as a result of defendants' delay.

Lowe v. Hamilton County Dep't of Job & Family Serv., No. 09-3432, concerned a plaintiff's employment discrimination suit against Hamilton County Department of Job and Family Services (HCJFS), claiming race, age, and disability discrimination and retaliation.  In affirming the district court's grant of defendant's summary judgment on the race and age discrimination claims and denial of summary judgment on disability discrimination and retaliation claims, the court held that the district court properly characterized the defendant as a political subdivision, rather than as an arm of the state, and defendant has not met its burden of showing that it is entitled to Eleventh Amendment sovereign immunity.

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