FindLaw Opinion Summaries - 6th Circuit COA

US v. Hardy, No. 08-5421

2009-11-20T21:15:22Z

In a prosecution for bank fraud and tax evasion, district court's exclusion of defense evidence on the ground that defendant failed to comply with the reciprocal discovery requirement of Fed. R. Crim. P. 16(c) is affirmed as the district court did not err in excluding the evidence, but even if the court did err, it was harmless error because the excluded evidence would not have created reasonable doubt.

Read US v. Hardy, No. 08-5421

Appellate Information

Argued: October 13, 2009

Decided and Filed: November 20, 2009

Judges

Opinion by Senior District Judge Hood

Counsel

For Appellant: David W. Camp, Law Offices of David W. Camp

For Appellee: R. Leigh Grinalds, Assistant US Attorney

US v. Thompson, No. 08-3760

2009-11-20T21:11:33Z

Defendant's sentence to 28 months' imprisonment for possession with intent to distribute cocaine base is affirmed as the district court properly attributed six criminal history points to defendant's prior convictions and two additional points under U.S.S.G. section 4A1.1(e) because the instant offense occurred less than two years after his release from his juvenile confinement, for a total of eight criminal history points and a sentencing guidelines range of 24 to 30 months.

Read US v. Thompson, No. 08-3760

Appellate Information

Argued: October 13, 2009

Decided and Filed: November 20, 2009

Judges

Opinion by Senior District Judge Hood

Counsel

For Appellant: Mark R. DeVan, Berkman, Gordon, Murray & DeVan

For Appellee: Laura McMullen Ford, Assistant US Attorney

White v. Howes, No. 08-1458

2009-11-20T21:04:59Z

District court's grant of petition for habeas relief on the ground that the trial court violated the Double Jeopardy Clause by convicting defendant for both the felon in possession statute and the felony firearm statute is reversed as current jurisprudence allows for multiple punishment for the same offense provided the legislature has clearly indicated its intent to so provide and recognizes no exception for necessarily included or overlapping offenses.

Read White v. Howes, No. 08-1458

Appellate Information

Argued: June 19, 2009

Decided and Filed: November 20, 2009

Judges

Opinion by Circuit Judge White

Counsel

For Appellant: Brad H. Beaver, Office of the Michigan Attorney General

For Appellee: C. Mark Pickrell, Waller Lansden Dortch & Davis, LLP

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

2009-11-16T17:52:23Z

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

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

Appellate Information

Argued: October 14, 2009

Decided and Filed: November 16, 2009

Judges

Opinion by Circuit Judge Griffin

Counsel

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

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

In re: Nowak, No. 08-3690

2009-11-13T21:44:43Z

In Chapter 7 bankruptcy proceedings, the Bankruptcy Appellate Panel's (BAP) denial of plaintiff-creditor's motion to allow an informal proof of claim based on its prior filings as a putative secured creditor is affirmed as the BAP did not abuse its discretion in finding that: 1) plaintiff had ample notice of the likelihood that it would lose its status as a secured creditor, necessitating the filing of a proof of claim; 2) plaintiff's unexplained delay weighed against allowing plaintiff's informal proof of claim; and 3) the large dilution in the distribution to other creditors in this case was an appropriate consideration weighing against allowing plaintiff's claim.

Read In re: Nowak, No. 08-3690

Appellate Information

Argued: October 13, 2009

Decided and Filed: November 13, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant: David A. Freeburg, McFadden & Freeburg Co., LPA., Cleveland, Ohio

For Appellee: Lydia Evelyn Spragin, Akron, Ohio

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

2009-11-13T21:39:27Z

In plaintiff's ERISA suit against an insurance company for denying his claim for dismemberment benefits arising from a drunk-driving motorcycle accident, summary judgment for defendant-plan administrator is reversed and remanded for entry of judgment in favor of the plaintiffs where: 1) defendant's decision to deny benefits to the plaintiffs was contrary to the everyday meaning of the word "accidental" as it would be understood by a typical policyholder, and was based almost entirely on a body of largely distinguishable district court cases; 2) plaintiff's injuries were not "highly likely to occur" as a result of his intoxication, in contrast to the injuries that were highly likely to occur under the facts in Lennon; 3) defendant's interpretation of the Plan's provisions amounts to an additional, unwritten exclusion for all drunk-driving injuries, which is not permitted under even the most deferential standard of review; and 4) defendant's denial of coverage based on plaintiff's injuries being non-accidental was unreasonable, arbitrary and capricious.

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

Appellate Information

Argued: July 28, 2009

Decided and Filed: November 13, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant: Matthew D. Greenwell, Charles V. Longo Co., LPA, Beachwood, Ohio

For Appellee: Rebecca B. Jacobs, Ulmer & Berne LLP, Columbus, Ohio

Johnson v. Sherry, No. 08-1322

2009-11-13T21:33:00Z

In a second degree murder case, district court's denial of defendant's petition for habeas relief is vacated and remanded for an evidentiary proceeding to determine whether: 1) the trial closure during the testimony of three prosecution witnesses was justifiable; 2) trial counsel was constitutionally ineffective for failing to object to the closure; and 3) the cause and prejudice components of defendant's public trial claim can be satisfied.

Read Johnson v. Sherry, No. 08-1322

Appellate Information

Argued: August 7, 2009

Decided and Filed: November 13, 2009

Judges

Opinion by Circuit Judge Clay

Counsel

For Appellant: Elizabeth L. Jacobs, Law Office, Detroit, Michigan

For Appellee: Andrew I. Shirvell, Office of the Michigan Attorney General, Lansing, Michigan

Eddleman v. McKee, No. 08-1093

2009-11-12T22:46:06Z

District court's orders releasing defendant from prison and barring his reprosecution on the ground that the State took too long to conduct a second trial are reversed and remanded with instructions to dismiss the petition for lack of jurisdiction as no federal power authorized the district court to release the defendant from pretrial detention on a legitimate state charge, or to bar his reprosecution.

Read Eddleman v. McKee, No. 08-1093

Appellate Information

Argued: June 10, 2009

Decided and Filed: November 12, 2009

Judges

Opinion by Circuit Judge Kethledge

Counsel

For Appellant: B. Eric Restuccia, Office of the Michigan Attorney General, Lansing, Michigan

For Appellee: Andrew N. Wise, Federal Defender Office, Detroit, Michigan

US v. Schaffer, No. 09-3053

2009-11-12T22:40:44Z

District court's denial of defendant's motion to dismiss his indictment for conspiracy to commit computer fraud is affirmed where: 1) defendant did not properly preserve his factual specificity of the indictment argument; 2) defendant failed to establish that the face of the indictment failed to charge the elements of a federal offense; 3) no violation of the statute of limitations occurred as the indictment was returned within five years of the last act in furtherance of the conspiracy; 4) defendant failed to demonstrate that he was actually prejudiced by a pre-indictment delay; and 5) the district court committed no error in denying defendant's motion to dismiss based upon entrapment as a matter of law.

Read US v. Schaffer, No. 09-3053

Appellate Information

Argued: July 29, 2009

Decided and Filed: November 12, 2009

Judges

Opinion by District Judge Vantatenhove

Counsel

For Appellant: Richard G. Lillie, Lillie & Holderman, Cleveland, Ohio

For Appellee: Daniel R. Ranke, Assistant US Attorney, Cleveland, Ohio

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

2009-11-12T22:34:57Z

In a section 1983 suit brought against a county Board of Education (Board) by the parents of children who were dismissed from a high school football team for challenging their coach's leadership, a jury verdict in favor of defendants is affirmed where: 1) the Board's policy amounts to a content-neutral time, place and manner regulation; 2) the board's policy is not unconstitutionally vague on its face and as applied; 3) plaintiffs' challenges to several of trial court's jury instructions are rejected; but 4) district court's decision to grant $87,216.49 in attorney's fees and expenses to defendants is reversed as plaintiffs' action were not frivolous, unreasonable, or without foundation.

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

Appellate Information

Argued: August 6, 2009

Decided and Filed: November 12, 2009

Judges

Opinion by Circuit Judge Sutton

Counsel

For Appellant: G. Mark Mamantov, Bass Berry & Sims, PLC., Knoxville, Tennessee

For Appellee: Michael S. Kelley, Kennerly Montgomery & Finley, PC., Knoxville, Tennessee

Chontos v. Berghuis, No. 08-1031

2009-11-10T20:52:08Z

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

Read Chontos v. Berghuis, No. 08-1031

Appellate Information

Argued: June 11, 2009

Decided and Filed: November 10, 2009

Judges

Opinion by Circuit Judge Cook

Counsel

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

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

Shaya v. Holder, No. 08-4619

2009-11-09T19:28:55Z

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

Read Shaya v. Holder, No. 08-4619

Appellate Information

Argued: October 6, 2009

Decided and Filed: November 9, 2009

Judges

Opinion by Circuit Judge Martin

Counsel

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

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

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

2009-11-09T19:23:50Z

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

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

Appellate Information

Argued: October 16, 2009

Decided and Filed: November 9, 2009

Judges

Opinion by Circuit Judge Rogers

Counsel

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

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

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

2009-11-09T19:18:18Z

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

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

Appellate Information

Argued: October 15, 2009

Decided and Filed: November 9, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

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

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

Jones v. Byrnes, No. 08-1889

2009-11-09T19:12:50Z

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

Read Jones v. Byrnes, No. 08-1889

Appellate Information

Argued: October 9, 2009

Decided and Filed: November 9, 2009

Judges

Per Curium Opinion

Counsel

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

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