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

August 2010 Archives

Employee's FLSA Suit Against Kellogg, Plus Criminal Matters

Franklin v. Kellogg Co., 09-5880, involved a plaintiff's suit against Kellogg Company on behalf of herself and all similarly situated employees to recover wages under the Fair Labor Standards Act (FLSA) for time spent donning and doffing Kellogg's mandatory food safety uniforms and protective equipment, and for time spent walking to and from the changing area and the time clock.

 

US v.Wettstain, 08-5707, concerned a challenge to defendants' convictions for their involvement in a large-scale methamphetamine drug distribution ring and sentences of life imprisonment.  The court affirmed for the most part, but vacated and remanded for resentencing a defendant's life sentence on Counts II and IV and co-defendant's life sentences on Counts III and IV.

 

Qu v. Holder, 09-3118

Qu v. Holder, 09-3118, concerned a challenge to a BIA's reversal of IJ's grant of a Chinese citizen's application for asylum and order that the petitioner be removed from the U.S. to China.  In vacating the decision, the court remanded the matter as, although petitioner seems to have made the requisite showing that she was a member of a particular social group of women in China who have been subjected to forced marriage and involuntary servitude for asylum purposes, the BIA did not make an explicit finding on the issue, but rather appeared to base its denial of asylum on the fact that petitioner was not targeted in part on account of her gender.  Further, BIA's denial of petitioner's claim for CAT is remanded for consideration of the merits.

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US v. Prince, 08-6547

US v. Prince, 08-6547, concerned a challenge to a conviction of defendant for conspiracy to commit money laundering and multiple counts of money laundering, in connection with fraudulent claims for payment for physical therapy services provided to Medicare beneficiaries.

 

US v. Payton, 09-3930, concerned a challenge to the district court's denial of defendant's motion for sentence reduction, in a prosecution of defendant for possessing approximately 5.44 grams of cocaine base with the intent to distribute.  In affirmin, the court held that, a defendant convicted of crack-related charges, but sentenced as a career offender under U.S.S.G. section 4B1.1, is not eligible for a reduction based on Amendment 706.

 

Decisions In Civil Rights, Criminal Law & Tort Matters

US v. Lanham, 08-6504, concerned a challenge to convictions and sentences of defendants-correctional officers' for conspiracy to violate an inmate's civil rights in violation of 18 U.S.C. sections 241 and 242 and making false entry in violation of 18 U.S.C. section 1519, arising from an inmate being beaten and raped by other inmates as a result of defendants' decision to scare the inmate by placing him in a general population jail cell.

 

Cvijetinovic v. Eberlin, 08-3629

Cvijetinovic v. Eberlin, 08-3629, concerned a challenge to the district court's conditional grant of defendant's request for habeas relief from his enhanced sentence, on the ground that defendant was sentenced under provisions of Ohio's sentencing scheme that permitted sentencing enhancements based on judicial fact-finding in violation of Blakely.

 

Hussein v. City of Perrysburg, 09-4054, involved a homeowners' suit against a city, a city inspector and other individuals in their official and personal capacities, claiming that defendants violated their procedural and substantive due process rights by ordering a construction worker to remove a temporary asphalt layer in their driveway.

 

US v. Bacon, 09-1793, concerned a challenge to the district court's denial of an acceptance-of-responsibility reduction in imposing a within-Guidelines sentence of 34 months' imprisonment involved a prosecution of defendant for bank fraud.  In affirmin, the court held that the district court thoroughly addressed the section 3553(a) factors and the error in the guidelines calculation was harmless.  The court rejected defendant's remaining arguments in support of his claim that his sentence was procedurally unreasonable as they were wholly without merit.  The court also held that the district court's rejection of defendant's request for an acceptance of responsibility reduction was not clearly erroneous, and that defendant has failed to rebut the presumption that the court's sentence was substantively unreasonable.

 

Wimbush v. Wyeth, 09-3380

Wimbush v. Wyeth, 09-3380, involved a plaintiff's suit against a diet pill manufacturer claiming strict liability and common law negligence.  In affirming in part, the court held that it was proper to grant defendant's motion for summary judgment on a strict liability design defect claim as plaintiff failed to point to any evidence creating a factual dispute as to the adequacy of warning.  The court also affirmed trial court's grant of summary judgment for defendant on post-FDA approval negligence claims as plaintiff failed to point to any actual evidence in a particularized manner.  However, the court vacated in part as the district court erred in granting summary judgment to defendant on preemption grounds on plaintiff's pre-approval common law negligence claims as FDA approval does not automatically preempt state law tort claims for negligence.

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McKenna v. Honsowetz, 08-2080

McKenna v. Honsowetz, 08-2080, concerned a challenge to the district court's denial of defendants' motions for summary judgment based on qualified immunity and reduction of an award for plaintiff for pain and suffering from $275,000 to $10,000, in plaintiff's 42 U.S.C. section 1983 suit against two police officers who responded to a 911 report that plaintiff was having a medical seizure and thereafter allegedly violated his Fourth Amendment rights.

 

Plaintiff's FELA Suit, Plus Criminal Law Matters

US v. Webb, 09-5719, concerned a challenge to the district court's imposition of an above-Guidelines sentence of 37 months' imprisonment, in a prosecution of defendant for producing counterfeit bills and using the bills to purchase merchandise at several businesses.  In affirming, the court held that the district court did not clearly err in refusing to apply the Application Note 4 exception for bills that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny.  Also, the record reflects that the district court carefully considered many of the section 3553(a) sentencing factors, gave appropriate weight to the most relevant factors, and ultimately reached a reasoned conclusion.

US v. Vasquez-Martinez, 08-5977

US v. Vasquez-Martinez, 08-5977, concerned a challenge to the district court's denial of defendant's motion to suppress evidence found during an investigative stop, in a prosecution of defendant for conspiracy to distribute methamphetamine and possession of a firearm in furtherance of that crime.

As stated in the decision: "Vasquez-Martinez pled guilty at his arraignment hearing and at no point during the proceedings signed a written plea agreement.  Nor did he make any attempt to enter a conditional plea of guilty that would have reserved his right to appeal the denial of his motion to suppress."

Thus, in affirming. the court held that defendant's right to appeal the ruling is precluded by Rule 11(a)(2) because he pled guilty without the benefit of a plea agreement and without reserving the right to have the appellate court review the adverse ruling on his pretrial motion to suppress.

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US v. Walker, 08-4680, concerned a challenge to the district court's conviction of defendant for bank robbery and brandishing a firearm, and a sentence of 277 months and one day in prison.  In affirming, the court held that the district court did not err in denying defendant's motion to suppress evidence of the firearm obtained during a search of his duffel bag as, on the record, it is fair to say that the search was reasonably designed to discover weapons that might pose a threat to the officers' safety.  The court rejected defendant's claim for resentencing as he has not shown that any error, even assuming for the sake of argument that one occurred, affected his substantial rights.

 

White v. Wyndham Vacation Ownership, Inc., 09-5626, concerned a challenge to the district court's grant of summary judgment in favor of the defendants based on a claim of judicial estoppel, in plaintiff's sexual harassment suit against her former employers seeking $250,000 in compensatory damages and $1 million in punitive damages.  In affirming, the court held that plaintiff asserted a position before the bankruptcy court that was contrary to the position that she asserted before the district court as she did not disclose her sexual harassment claim against defendants in her initial bankruptcy filings.  The court also held that the plaintiff had a motive to conceal and knowledge of the factual basis of her harassment claim, and the evidence plaintiff presented of her attempts to advise the bankruptcy court and the trustee of her harassment claim does not excuse her initial omission.

  • US v. Cecil, 08-5080, concerned a challenge to the district court's conviction of a former police officer for drug related offenses and imposition of a 144-month sentence.  In affirming both the conviction and the sentence, the court held that the district court did not err in rejecting defendant's Batson challenge as defendant has failed to meet his burden of demonstrating purposeful discrimination on the part of the government.

  • US v. Williams, 08-4630, concerned government's challenge to the district court's suppression of physical evidence and defendant's statements during the encounter with the police officers, in ruling that defendant had been illegally seized, in a prosecution of defendant for being a felon in possession of a firearm and ammunition.  In affirming the judgment, the court held that the district court correctly determined that officers seized defendant without reasonable suspicion of criminal activity.  The court also held that, neither the officer's hunch that defendant might have an outstanding warrant nor defendant's statement purged the incriminating evidence of the taint of the unlawful seizure.

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    US v. People First of Tennessee, 09-5474, concerned a challenge to the district court's denial of the State of Tennessee's motion under Fed. R. Civ. Proc. 60(b)(5), requesting the court to vacate the injunctive relief and dismiss the case, in a case arising from the district court's original 1993 ruling that the state was violating the substantive due process rights of mentally retarded residents at a state operated home for mentally retarded individuals.  In affirming, the court held that the state has not put forward a single case or statute that could qualify as the significant change in law required to satisfy its initial burden under Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), and in light of this failure, the district court did not abuse its discretion when it refused to revisit the original judgment.

  • Reciprocal Disbarment of a Judge Upheld

    In re: Squire, 08-4401, concerned a challenge to the district court's imposition of a reciprocal disbarment of a judge from practicing in federal court, in proceedings arising from the suspension of the judge on the county's Domestic Relations and Juvenile Court from practicing law in state of Ohio for two years.  In affirming the reciprocal discipline, the court held that the failure to disclose the names of those persons to whom the Ohio disciplinary counsel may have spoken during the course of his investigation, but who were not part of the administrative record resulting in petitioner's disbarment did not testify against her, was not a due process violation requiring reversal.  The court also held that the record supports the district court's decision to impose reciprocal discipline on petitioner.  Lastly, the court rejected petitioner's remaining claims as meritless.

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    Mezo v. Holder, 09-3336, concerned a challenge to the BIA's denial of an Iraqi citizen's motion to reopen, claiming that she received ineffective assistance of counsel.  In vacating the BIA's denial and remanding, the court held that there is no evidence in the record to support the BIA's conclusion that petitioner's untimely filed appeal resulted from her own lack of diligence.  Therefore, if the Board finds that petitioner received ineffective assistance of counsel and that she was prejudiced by the ineffective assistance, equitable tolling would apply and the motion to reopen would be timely.  However, if the Board finds that petitioner did not receive ineffective assistance of counsel, equitable tolling would not apply and the motion to reopen would not be timely and the Board would  lack jurisdiction to hear the motion to reopen.

    Ikharo v. Holder, 08-4139, concerned a Nigerian citizen's petition for review of the BIA's affirmance of an IJ's denial of an application for waiver of inadmissibility, asylum and related relief, and an order denying petitioner's motion to reconsider.  In denying the petition, the court held that, although petitioner has a plausible argument that the BIA's rejection of his pro se brief in the absence of his attorney's signature constituted a defect in his removal proceedings, he is unable to demonstrate that he was prejudiced by the existence of any such defect.  The court also held that petitioner has waived any challenge to the BIA's denial of his motion for reconsideration.

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