Sixth Circuit Cases

6th Cir. Published Decisions for Week of Nov. 19, 2007 (1 Ky decision)

Opinion	Short Title/District
07a0458p.06	Ilic-Lee v. Mukasey     Immigration & Naturalization Service McKEAGUE, Circuit Judge. Petitioner Zlata Ilic-Lee petitions this court for review of two Board of Immigration Appeals’ (“BIA”) decisions that (a) affirmed the Immigration Judge’s (“IJ”) denial of petitioner’s motion for continuance, (b) vacated the IJ’s denial of petitioner’s motion to reopen, and (c) denied petitioner’s direct motion to reopen. For the reasons that follow, we AFFIRM the decisions of the BIA and DENY the petitions for review.
07a0459p.06	USA v. Christman     Southern District of Ohio at Cincinnati GRIFFIN, Circuit Judge. Defendant-appellant Richard Christman pleaded guilty to two counts of a superseding indictment, charging him with the possession of materials constituting child pornography in violation of 18 U.S.C. §§ 2252, 2252A, and 2256. The district court sentenced defendant to 57 months of imprisonment, 3 years of supervised release, a $1,000 fine, and a $200 special assessment. Defendant now timely appeals, claiming that in determining his sentence, the district court improperly relied upon extraneous information obtained from ex parte communications with a probation officer and a pretrial services officer that contradicted record evidence and information contained in the presentence investigation report. For the reasons set forth below, we hold that defendant’s sentence was imposed in violation of Federal Rule of Criminal Procedure 32 (“Rule 32"), which requires that at sentencing, the court “must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence,” and further states that the court “must – for any disputed portion of the presentence report or other controverted matter – rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter at sentencing. . . .” FED. R. CRIM. P. 32(i)(1)(C), (i)(3)(B) (2002). Here, the district court’s admitted reliance upon the ex parte communications, consisting of the probation and pretrial services officers’ subjective impressions that defendant had acted on his pedophilia and in fact had molested children, not only deprived defendant of his right to be sentenced on the basis of accurate and reliable information, U.S.S.G. § 6A1.3, but also foreclosed any opportunity for defendant to comment on and respond to the information, contrary to Rule 32(i). Because the district court acknowledged three months after the sentencing hearing that were it not for the information not disclosed to defendant, it would have imposed a lower sentence, the error was prejudicial. We therefore vacate defendant’s sentence and remand for resentencing.
07a0460p.06	City of Cleveland v. State of OH     Southern District of Ohio at Columbus DAVID M. LAWSON, District Judge. The City of Cleveland, Ohio (the City) challenges a final decision by the Federal Highway Administration (FHWA) to withdraw federal funds from a public works project initiated by the City that was intended to improve the aesthetic appearance of a local thoroughfare. At the base of this dispute is a local ordinance known as the Lewis Law, which mandates that contractors employing Ohio workers on public projects for the City ensure that at least twenty percent of the work on that project is performed by Cleveland residents, and provides that contractors who violate the requirement must post a substantial bond as a condition of receiving subsequent contracts with the City. The City included Lewis Law compliance as a requirement in its bid specifications but later withdrew that requirement when told to do so by the Ohio Department of Transportation. However, the requirement reappeared in the contract signed by the successful bidder. The FHWA determined that inclusion of the Lewis Law’s local hiring preference in the contract violated certain federal requirements pertaining to competitive bidding and nondiscriminatory hiring, and therefore it withdrew federal funding that previously had been approved for the project. The district court rejected the City’s challenge to the FHWA’s decision brought under the Administrative Procedures Act on the grounds that the City’s local hiring preference requirement frustrated 23 U.S.C. § 112’s goal of limiting anti-competitive bidding provisions and procedures, and violated 23 C.F.R. § 117(b) by authorizing geographically-based discrimination. The lower court also held that the ordinance’s enforcement mechanism violated 23 C.F.R. § 635.110(b) because the Lewis Law’s bond penalty for noncompliance could restrict competition by deterring some contractors from bidding on City construction projects. Although we disagree with the district court’s conclusion that the substance of the Lewis Law itself runs afoul of 23 U.S.C. § 112(b) and some of the regulations cited by the FHWA, we affirm the district court’s judgment because withdrawal of the funds was authorized under the discretion conferred on the FHWA and by 23 U.S.C. § 112(b), which outlaws contract “requirement[s] or obligation[s]” that are not “specifically set forth in the advertised specifications.” 23 U.S.C. § 112(b)(1). We also find that the FHWA acted reasonably in determining that the Lewis Law’s bond penalty provision violated 23 C.F.R. § 635.110(b).
07a0461p.06	Popovich v. Sony Music     Northern District of Ohio at Cleveland BOYCE F. MARTIN, JR., Circuit Judge. A jury awarded Stephen Popovich over five million dollars on his claim that Sony Music Entertainment, Inc., breached its duty to affix Popovich’s record company logo to four Meat Loaf albums. On appeal, Sony argues that the damages award was barred as a matter of law. Popovich cross-appeals claiming the district court improperly denied his motion for pre-judgment interest, improperly limited discovery to Sony’s distribution of Meat Loaf albums in eight countries, and improperly held that Sony’s logo obligations did not apply to internet downloads. For the following reasons we AFFIRM the jury’s verdict, the district court’s denial of pre-judgment interest, and the exclusion of internet downloads from Sony’s logo obligations. We reverse the district court’s decision restricting discovery related to any new obligations created by the 1998 Agreement to the eight countries delineated in the original agreement, and remand for further proceedings.
07a0462p.06	USA v. Lent USA v. Vasilakos     Southern District of Ohio at Columbus RYAN, Circuit Judge. The defendants, Peter J. Vasilakos and Debbie K. Lent, appeal their convictions for mail fraud, money laundering, and conspiracy to commit mail fraud. The district court sentenced Vasilakos to 66 months’ imprisonment and Lent to 57 months. On appeal, the defendants offer a host of arguments for overturning their convictions: that prior civil proceedings in which the defendants prevailed should have precluded their criminal prosecution; that the district court, in violation of the Sixth Amendment, permitted the government to use redacted excerpts of codefendants’ civil trial testimony; that the district court abused its discretion with respect to various evidentiary rulings that precluded the defendants from presenting a “good faith defense”; that the district court’s bail restrictions impermissibly infringed on the defendants’ ability to contact witnesses and present a defense; that the district court erred by allowing a United States postal inspector to testify about the ownership and use of the post office boxes utilized in the defendants’ scheme; that the district court failed to issue a proper instruction limiting the testimony of the government’s summary witness; and that the sentences imposed by the district court are unreasonable. After careful consideration of each of these arguments of error, we conclude, for reasons we shall discuss, that Vasilakos’s and Lent’s convictions and sentences should be affirmed.
07a0463p.06	Graoch Assoc #33 v. Louisville & Jefferson County     Western District of Kentucky at Louisville BOGGS, Chief Judge. The Section 8 voucher program is a voluntary program through which the federal government provides rent subsidies to eligible low-income families who rent from participating landlords. See 42 U.S.C. § 1437f(a). The Fair Housing Act, also known as Title VIII, bars discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of race . . . .” 42 U.S.C. § 3604(b). In this case, Graoch, the owner of Autumn Run Apartments in Louisville, seeks a declaratory judgment that it did not violate the FHA by withdrawing from the Section 8 program. Its claim presents two questions regarding the interplay between Section 8 and the FHA. First, can a landlord’s withdrawal from the Section 8 program ever violate the FHA solely because it has a disparate impact on members of a protected class? Second, if so, what are the standards for measuring disparate impact? The district court answered the first question in the negative and therefore granted summary judgment in favor of Graoch without reaching the second question. We reach the same final result, but in a different way. Disagreeing with the position taken by the Second and Seventh Circuits, we hold that a plaintiff can, in principle, rely on evidence of some instances of disparate impact to show that a landlord violated the Fair Housing Act by withdrawing from Section 8. We also hold, however, that in this case the Metro Human Relations Commission did not even allege facts making the statistical comparison necessary to state a prima facie case of disparate-impact discrimination. Consequently, we affirm.
07a0464p.06	Bridgeport Music Inc v. WB Music Corp     Middle District of Tennessee at Nashville JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Bridgeport Music, Inc. (“Bridgeport”) appeals the district court’s grant of summary judgment in favor of defendant-appellee Universal-MCA Music Publishing (“Universal”) in this copyright infringement case alleging that Universal interpolated the lyrics to the recording Pumpin’ It Up in the recording Change Gone Come. For the reasons set orth below, we affirm the district court’s grant of summary judgment in favor of Universal.

6th Cir. Published Decisions for Week of Nov. 12, 2007 (2 published from Ky; 2 NPO's from Ky)

Opinion	Short Title/District
07a0449p.06	Liberty Life v. Gilbert     Eastern District of Tennessee at Greeneville BOYCE F. MARTIN, JR., Circuit Judge. This Court is faced with the unenviable task of deciphering what would surely be an excellent law school exam question in first-year civil procedure. Liberty Life Assurance of Boston and Sun Life Assurance Company of Canada filed the present interpleader and declaratory relief action in order to determine who was due annuity payments originally received by the decedent, Lloyd Gilbert. Gilbert’s ex-wife, Irene Wolff, claims she is due the annuity payments based on her separation agreement with Gilbert. A loan company, Singer Asset Finance Company, claims it loaned Gilbert a substantial sum of money in exchange for a security interest in Gilbert’s annuity payments. Finally, Gilbert’s daughter, Stephanie Muschlitz, is the named beneficiary on the annuity. We believe the district court correctly decided the numerous legal issues and did not abuse its discretion in weighing the equities, and accordingly affirm its decision.
07a0450p.06	Does v. Munoz     Eastern District of Michigan at Detroit JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellants John Does II–III appeal the district court’s order dismissing their challenge to the constitutionality of Michigan’s Setting Aside Convictions Act (“SACA”), Mich. Comp. Laws §§ 780.621-780.624 (2002), and Sex Offender Registration Act (“SORA”), Mich. Comp. Laws §§ 28.721-28.732 (2002). On appeal, plaintiffs contend that the district court erred when it found that they had suffered no substantive due process or equal protection violations from the requirement that they register and appear on Michigan’s Public Sex Offender Registry (“PSOR”). For the following reasons, we affirm the district court’s decision.
07a0451p.06	Seawright v. Amer Gen Fin Serv     Western District of Tennessee at Memphis BOGGS, Chief Judge. Lisa Seawright worked for American General Financial Services (“AGF”) from November 1978 until April 2005.1 AGF terminated Seawright’s employment in April 2005. In response, Seawright filed suit in the United States District Court for the Western District of Tennessee, alleging that AGF discharged her in violation of Tennessee antidiscrimination law and the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. AGF moved to compel arbitration, proffering an arbitration agreement to which Seawright had previously agreed. Seawright denies that she agreed to arbitrate. At issue is whether an agreement exists between AGF and Seawright, and if so, whether the agreement is enforceable. The district court found that no enforceable agreement existed. We hold that Seawright’s knowing continuation of employment after the effective date of the arbitration program constituted acceptance of a valid and enforceable contract to arbitrate. We therefore reverse the district court’s denial of AGF’s motion to compel arbitration.
07b0012p.06	In re: Gary Trujillo v.     U.S. Bankruptcy Court - Lexington J. VINCENT AUG, JR., Chief Bankruptcy Appellate Panel Judge. The CIT Group/ Consumer Finance, Inc. (“CIT”) and Select Portfolio Servicing, Inc. (“Select Portfolio”) appeal the bankruptcy court’s judgment entered July 13, 2006 (the “July 13th Order”), granting summary judgment for Beverly Burden, the chapter 13 trustee (the “Trustee”). The bankruptcy court’s decision is based on its determination that CIT’s mortgage did not provide constructive notice to subsequent purchasers or creditors because the mortgagor’s signature was not properly acknowledged under Kentucky law, and therefore, the mortgage is subject to avoidance by the Trustee. The Creditors further appeal the bankruptcy court’s order entered November 16, 2006, denying the Defendants’ Motion to Alter, Amend or Vacate Judgment (the “Motion to Alter or Amend”).
07a0452p.06	Robert v. Tesson     Southern District of Ohio at Cincinnati CLAY, Circuit Judge. Petitioner Ivan Nicholas Robert appeals a decision in favor of his estranged wife, Respondent Gayle M. Tesson, denying return of their twin sons to Plaintiff’s home country of France. Petitioner alleges that Respondent illegally abducted the twins to the United States, and that the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) requires that they be returned to France. For the reasons that follow, we hold that the district court applied an incorrect legal standard in determining that the children were habitual residents of the United States at the time of the alleged abduction. Nevertheless, because we also believe that applying the district court’s findings of fact to the proper legal standard will not alter the outcome of that court’s decision, we AFFIRM the district court’s decision denying the petition for return of children.
07a0453p.06	Commercial Money Ctr v. Illinois Union Ins & Citibank v. Illinois Union Ins     Northern District of Ohio at Cleveland RALPH B. GUY, JR., Circuit Judge. This case concerns one of a number of disputes transferred to the Northern District of Ohio as part of the multidistrict litigation captioned In re: Commercial Money Center, Inc. (CMC) Equipment Lease Litigation (No. 02-16000), which arose out of the collapse of CMC’s equipment leasing business in what is alleged to have been a Ponzitype scheme. When CMC filed for bankruptcy, the district court was left to sort out the claims and counterclaims of nearly twenty banking institutions and a half-dozen insurance companies arising out of various lease-backed transactions with CMC and CMC-related entities. These consolidated appeals involve the dispute between several parties to one such transaction—specifically, the dispute between Illinois Union Insurance Company on one hand, and Citibank, N.A., and JP Morgan Chase Bank, N.A., as trustee for Citibank, on the other, concerning Illinois Union’s obligations under an insurance policy containing a negotiated Collateral Security Insurance Endorsement (Coverage E). On appeal, Illinois Union contends that the district court erred in finding, on a 12(c) motion for judgment on the pleadings: (1) that Illinois Union’s policy was “in substance” a surety contract; (2) that Chase, as trustee for Citibank, was the obligee under that surety contract such that it was entitled to recover without regard to the alleged fraud of the principal obligor; and (3) that Illinois Union was precluded by the negotiated waiver of defenses from avoiding the obligations under the Policy on the grounds of fraudulent inducement. Second, Illinois Union argues that, even if correct on these issues of liability, the district court erred in calculating the damages by reference to the lease payments as opposed to the debt those payments secured. Finally, Illinois Union argues that the district court abused its discretion in denying the motion for leave to amend its pleadings. After review of the record and the arguments presented on appeal, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
07b0012p.06	In re: Gary Trujillo v.     U.S. Bankruptcy Court - Lexington J. VINCENT AUG, JR., Chief Bankruptcy Appellate Panel Judge. The CIT Group/Consumer Finance, Inc. (“CIT”) and Select Portfolio Servicing, Inc. (“Select Portfolio”) appeal the bankruptcy court’s judgment entered July 13, 2006 (the “July 13th Order”), granting summary judgment for Beverly Burden, the chapter 13 trustee (the “Trustee”). The bankruptcy court’s decision is based on its determination that CIT’s mortgage did not provide constructive notice to subsequent purchasers or creditors because the mortgagor’s signature was not properly acknowledged under Kentucky law, and therefore, the mortgage is subject to avoidance by the Trustee. The Creditors further appeal the bankruptcy court’s order entered November 16, 2006, denying the Defendants’ Motion to Alter, Amend or Vacate Judgment (the “Motion to Alter or Amend”).
07b0013p.06	In re: Cocanougher v.     U.S. Bankruptcy Court - Lexington J. VINCENT AUG, JR., Chief Bankruptcy Appellate Panel Judge. In this appeal, the Appellant, Citifinancial Mortgage Co., Inc., f/k/a Associates Home Equity Service, Inc. as successor in interest to MG Investments, Inc. (“Citifinancial”), appeals the bankruptcy court’s judgment voiding Citifinancial’s security interests in real estate owned by the Debtors, William and Tina Cocanougher. The bankruptcy court voided the mortgages based on its finding that both mortgages were defective because the names of the Debtors do not appear in the body of the acknowledgment certificate as required by Kentucky Revised Statute § 423.130. Subsequent assignments of the mortgages were also defective because they failed to provide a brief description of the notes and the date of the notes as required by Kentucky Revised Statute § 382.290. As a result of the defects in the documents, the bankruptcy court found that neither the mortgages nor the assignments were sufficient to put the trustee on notice of Citifinancial’s mortgages. We AFFIRM the decision of the bankruptcy court.
07a0454p.06	Ivory v. Jackson     Eastern District of Michigan at Detroit RONALD LEE GILMAN, Circuit Judge. In January of 1998, Cedric Ivory was charged with the murder of his girlfriend, Alanna Napier. Following a bench trial before a Michigan state court later that year, Ivory was convicted of second-degree murder and a related firearm offense. He was sentenced to a lengthy term of imprisonment on the two charges. Ivory then petitioned for state postconviction relief, but was turned down at all levels of the state judiciary. He subsequently filed a motion for federal habeas corpus relief, with his principal argument being that his trial counsel provided ineffective assistance due to counsel’s addiction to drugs and alcohol. The district court determined that Ivory’s ineffective-assistance-of-counsel claim was procedurally defaulted and, in any event, without merit. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0455p.06	Mazur v. Young     Eastern District of Michigan at Bay City KAREN NELSON MOORE, Circuit Judge. In this diversity action we are asked to determine whether, under Michigan law, the guarantor of a land contract is liable to the seller for any deficiency once the seller has elected forfeiture as his remedy. For the reasons discussed below, we conclude that a judgment for possession after forfeiture extinguishes the land contract, leaving no legal basis to pursue further claims against the guarantor. Therefore, in this case, the guarantor is not liable, and we affirm the district court’s entry of summary judgment for the guarantor.
07a0456p.06	Doe v. Bredesen     Eastern District of Tennessee at Knoxville GRIFFIN, Circuit Judge. Plaintiff-appellant John Doe pleaded guilty in the Criminal Court of Knox County, Tennessee, to attempted aggravated kidnapping in violation of TENN. CODE ANN. §§ 39-12-101 and 31-13-304, and two counts of sexual battery by an authority figure in violation of TENN. CODE ANN. § 39-13-527. After Doe was convicted and sentenced, the Tennessee Legislature enacted the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 (“the Registration Act”), TENN. CODE ANN. § 40-39-201 et seq., which became effective on August 1, 2004. The Registration Act reclassified Doe as a violent sexual offender, see TENN. CODE ANN. § 40-39-202(24)(j), and required him to comply with the requirements of the Tennessee Bureau of Investigation (“TBI”) Sexual Offender Registry for the rest of his life, see TENN. CODE ANN. § 40-39-207(g)(1)(B). The Tennessee Legislature also enacted the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act (“the Monitoring Act”), TENN. CODE ANN. § 40-39-301 et seq., which became effective July 1, 2004.1 The Monitoring Act authorized the Tennessee Board of Probation and Parole (“the board”) to subject a convicted sexual offender to a satellite-based monitoring program for the duration of his probation. TENN. CODE ANN. § 40-39-303. In August 2005, Doe’s probation officer notified him that he would be required to wear a global positioning (“GPS”) device at all times beginning in September 2005. Doe brought suit in the United States District Court for the Eastern District of Tennessee (“the district court”) alleging that because he was convicted before the effective date of the Registration and Monitoring Acts, the application of the Acts’ requirements to him violated the Ex Post Facto Clauses of the United States Constitution (Article I, Section 3, Clause 3) and the Tennessee Constitution, as well as his right to procedural due process and his right against selfincrimination under the Fifth Amendment of the U.S. Constitution, and his right to privacy under both constitutions. The government moved to dismiss the complaint under FED. R. CIV. P. 12(b)(6) for failure to state a claim on which relief could be granted, and Doe filed an opposition brief that supported only the Ex Post Facto claims. Doe’s opposition brief also sought to raise a claim that was not in his complaint – that application of the Registration and Monitoring Acts to himviolated his plea agreement. The district court ruled that Doe’s ex post facto claims were meritless, the government had not breached the plea agreement, and Doe had abandoned his other claims. The district court dismissed the complaint, and Doe timely appealed. For the reasons that follow, we affirm. In doing so, we hold, inter alia, that the Registration Act (TENN. CODE ANN. § 40-39-201 et seq.) and the Monitoring Act (TENN. CODE ANN. 40-39-301 et seq.) do not violate the Ex Post Facto Clause of the United States Constitution.
07a0457p.06	USA v. Conces     Western District of Michigan at Grand Rapids Plaintiff/Appellee United States of America commenced this suit on October 27, 2005 in the United States District Court for the Western District of Michigan, seeking to enjoin Defendant/Appellant Charles Conces from promoting an alleged tax-fraud scheme and engaging in other conduct that allegedly interfered with the administration and enforcement of the federal tax laws. After Conces failed to make the initial disclosures mandated under Fed. R. Civ. P. 26(a), the Government sought, and the district court granted, an order compelling these disclosures. When Conces did not comply with this order, the district court entered a default judgment against him, permanently enjoined him from promoting any scheme to avoid federal tax liability, and granted the Government permission to conduct post-judgment discovery to ensure his compliance with the terms of the court’s injunctive award. During post-judgment discovery, the Government served five interrogatories and a document production request upon Conces, who responded by answering only two of the interrogatories and refusing to provide the requested documents. After many delays due to Conces’s numerous objections to the interrogatories, and after the entry of two orders directing him to respond to the Government’s discovery requests, the district court entered a February 23, 2007 order finding Conces in civil contempt and directing that he be incarcerated until he purged this contempt by complying with the court’s prior orders. Conces now appeals from this order, raising a number of challenges to the district court’s finding of contempt and to other rulings made in the course of the lower court proceedings. As explained below, we find that certain of the challenges advanced by Conces are not properly before us, and we affirm the district court’s rulings as to all remaining issues.

NONPUBLISHED DECISIONS ORIGINATING FROM KENTUCKY

Jolley v. Harvell
    Western District of Kentucky at Paducah 07a0793n.06 07/11/13

In re: Samuel Wilson v.
    U.S. Bankruptcy Court - Ashland 07b0016n.06 11/14/2007

 

6th Cir. Published Decisions for Week of Nov. 5, 2007 (1 Ky Decision)

Opinion	Short Title/District
07a0441p.06	Daubenmire v. City of Columbus     Southern District of Ohio at Columbus SILER, Circuit Judge. David Daubenmire, Thomas Meyer, and Charles Spingola (collectively, “Plaintiffs”) appeal from the district court’s judgment dismissing their 42 U.S.C. § 1983 claims. Meyer and Spingola allege that the City of Columbus (“City”), Sergeant Michael Piccininni, and Officer Todd Bush1 (collectively, “Defendants”) violated their First, Fourth, and Fourteenth Amendment rights in connection with their arrests and prosecution for open burning without a permit on June 23, 2001. Plaintiffs seek injunctive relief and a declaratory judgment against the City, stating that they desire to engage in ceremonial burning in the future, that their rights under the First and Fourteenth Amendments have been violated, and that the City’s policies and practices regarding open burning permits are unconstitutional. They contend that the district court made the following errors: (1) holding that plaintiffs lacked standing to pursue their claims for prospective injunctive and declaratory relief; (2) finding that Meyer and Spingola are collaterally estopped from asserting their claims in connection with their 2001 arrests and prosecutions; and (3) disregarding the liberal pleading standard under Federal Rule of Civil Procedure 12(b)(6) when it concluded that Meyer and Spingola failed to allege a prima facie case of selective enforcement. We AFFIRM in part, REVERSE in part, and REMAND to the district court.
07a0442p.06	Dubay v. Wells     Eastern District of Michigan at Bay City CLAY, Circuit Judge. Plaintiff Matthew Dubay (“Dubay”) appeals from the district court’s dismissal of his case pursuant to Federal Rule of Civil Procedure 12(b)(6), and its award of attorney fees to Defendants Lauren Wells (“Wells”), Saginaw County Prosecuting Attorney’s Office (the “County”), and Intervenor-Defendant Michael A. Cox, Attorney General of the State of Michigan (“Attorney General”). After Wells told Dubay she was infertile and using birth control, she became pregnant with Dubay’s child, had the baby, and sued for child support. A Michigan court awarded child support and Dubay brought this action challenging the constitutionality of the Michigan Paternity Act, Mich. Comp. Laws § 722.711 et seq. (2002), and related statutes under the Equal Protection Clause of the Fourteenth Amendment. For the reasons that follow, we AFFIRM the judgment of the district court.
07a0443p.06	USA v. Garner     Northern District of Ohio at Cleveland MERRITT, Circuit Judge. David Garner appeals his conviction after a jury trial for one count of carjacking pursuant to 18 U.S.C. § 2119(1) and one count of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Specifically, Garner contends that the district court erred in denying his motion for a new trial based on a violation of Brady v. Maryland arising from the government’s failure timely to turn over cell phone records prior to trial. Alternatively, Garner contends that the district court erred in denying his motion for a continuance to allow him time to investigate the information contained in the cell phone records. This appeal raises a possible issue of mistaken identity. Defendant was convicted of carjacking based primarily on the testimony of (1) his codefendant, Bryce Smith, who, because he pled guilty and did not go to trial, had motivation to lie about both his role in the carjacking and the identity of his co-hijacker to minimize his role and possibly to exonerate his friend, Deandrew Foster, who may have been Smith’s actual accomplice in the carjacking and (2) Shalonda Melton, the former girlfriend of codefendant Bryce Smith. Ms. Melton maintained a close relationship with Smith and had the motivation to lie both to help minimize the role of her ex-boyfriend, Bryce Smith, in the carjacking and to help their friend Deandrew Foster by implicating David Garner, whom she did not know, as the co-hijacker instead of Foster. A cell phone belonging to the victim was in the truck at the time it was stolen and was used to make and receive calls by the hijacker or hijackers. Garner’s counsel did not have timely access to the cell phone records that may well have impeached the testimony and credibility of Shalonda Melton and cast doubt on her identification of Garner as the co-hijacker. These records were in the government’s possession for five days before they were turned over to Garner’s counsel the morning the trial began. Recognizing the importance of the cell phone records to identify who was in the truck and using the stolen cell phone, Garner’s counsel requested a continuance of trial to investigate further the outgoing and incoming calls on the stolen cell phone. The district court denied the motion for a continuance without giving adequate reasons for why a short continuance to allow Garner’s counsel to investigate the cell phone records was unreasonable. The cell phone records provided strong evidence to support defendant’s theory that he had been framed by Melton, Smith and Foster. For the following reasons, we reverse the judgment of the district court and remand with instructions to conduct a new trial.
07a0444p.06	USA v. Stuart     Eastern District of Michigan at Detroit SUTTON, Circuit Judge. A jury convicted Daniel Lee Stuart of violating several drugtrafficking and firearm-possession laws. On appeal, Stuart argues that his rights to effective assistance of counsel, a trial by jury, a Franks hearing and due process were violated. Because we decline to review Stuart’s ineffective assistance claim on direct appeal and because his other arguments are unconvincing, we affirm.
07b0011p.06	In re: Greg Anderson v.     U.S. Bankruptcy Court - Marquette JOSEPH M. SCOTT, JR., Bankruptcy Appellate Panel Judge. Appellant Colleen M. Olson (the “Trustee) appeals the bankruptcy court’s order disapproving the settlement agreement entered into by the Trustee and Defendants David Allen Anderson and David A. Anderson (the “Defendants”). For the reasons that follow, the panel concludes that although the bankruptcy court abused its discretion by applying an erroneous legal standard, the court’s decision should be affirmed.
07a0445p.06	Thompson v. Greenwood Jordan v. Greenwood     Western District of Tennessee at Memphis BOGGS, Chief Judge. This consolidated appeal arises from a Title 11 bankruptcy action brought on behalf of two sets of debtors, all of whom are residents of the Northern District of Mississippi, who filed their actions in the Western District of Tennessee (Memphis Division) for reasons of convenience. The United States Trustee’s Office for the Northern District of Mississippi moved to transfer the cases. This case presents a single issue on appeal: whether a bankruptcy court may retain a case filed in an improper venue under 28 U.S.C. § 1408 over a timely objection by an interested party, if it determines that retention is in the interests of justice or for the convenience of the parties. The district court answered that question in the negative and ordered the cases transferred to the Northern District of Mississippi. We affirm.
07a0446p.06	USA v. Fore     Eastern District of Kentucky at Lexington GRIFFIN, Circuit Judge. Defendant James T. Fore, II, appeals his conviction and sentence on charges of interstate transportation of child pornography and possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(1) and (a)(4)(B), respectively. The central issue on appeal, a matter of first impression in this circuit, is whether the district court properly denied defendant’s request for a two-level reduction in his base offense level pursuant to U.S.S.G. § 2G2.2(b)(1) (2005), which allows such a reduction if “the defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor; and . . . the defendant did not intend to traffic in, or distribute, such material.” Defendant argued that the reduction was justified because his conduct was limited to possession with no intent to distribute pornography. The district court, however, denied the reduction on the ground that defendant’s criminal conduct was not limited to the receipt or solicitation of pornographic materials, but also involved the transportation of the pornography in interstate commerce. Defendant also challenges his conviction in a separately filed pro se supplemental brief. For the reasons set forth below, we affirm defendant’s conviction and sentence.
07a0447p.06	USA v. Conrad     Western District of Tennessee at Jackson BOYCE F. MARTIN, JR., Circuit Judge. Betty Sue Conrad appeals her conviction on one count of conspiracy to possess with intent to distribute in excess of 50 grams of methamphetamine and two counts of possession with intent to distribute methamphetamine. She argues that the district court improperly allowed hearsay evidence under the co-conspirator exception and that there was insufficient evidence to sustain her conviction. For the reasons that follow, we REMAND for further proceedings as instructed below.
07a0448p.06	Gerson v. CIR     Commissioner of Internal Revenue COOK, Circuit Judge. The Estate of Eleanor R. Gerson appeals the United States Tax Court’s decision to assess a tax of $1,144,465 on the proceeds of an irrevocable trust under the generation-skipping transfer (“GST”) tax. The Estate asserts that a grandfather clause protects these assets from taxation, despite a treasury regulation that would lead to a contrary result. Because the Commissioner’s regulation reasonably construes an ambiguous statutory provision, we affirm the Tax Court’s decision.

6th. Cir. Published Decisions for Week of Oct. 29, 2007 (1 Ky Decision)

Opinion	Short Title/District
07a0433p.06	Morgan v. Gonzales     Immigration & Naturalization Service RONALD LEE GILMAN, Circuit Judge. Maciver Morgan, a native and citizen of Jamaica, legally entered the United States as a permanent resident alien in 1985. Morgan married his wife,Tonya, in 1998, and they have since lived in Cleveland, Ohio with their two children and her child from a previous relationship. In 1996, Morgan pled guilty in Ohio state court to aggravated assault and was sentenced to 18 months in prison. The Bureau of Immigration and Customs Enforcement (ICE) initiated removal proceedings against him in 2003, alleging that his conviction for an aggravated felony/crime of violence made him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Morgan contested his removability and alternatively applied for a waiver of inadmissibility pursuant to § 212(c) of the Immigration and Nationality Act (INA). Following three hearings, the Immigration Judge (IJ) denied Morgan’s application and ordered him removed to Jamaica. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision and Morgan timely appealed. For the reasons set forth below, we AFFIRM the judgment of the BIA.
07a0434p.06	USA v. Wilson     Western District of Tennessee at Jackson RONALD LEE GILMAN, Circuit Judge. This case involves the constitutionality of a patdown search of a car passenger that resulted in the discovery of over one pound of powder cocaine. Lamar Wilson was a passenger in a car driven by Michael Jones when the car was pulled over by police officers because neither man was wearing a seat belt. The encounter escalated from a routine traffic stop into a pat-down search for weapons. During this pat-down search, a package wrapped in duct tape, later discovered to be cocaine, fell from one of Wilson’s pant legs. The district court granted Wilson’s motion to suppress evidence of the cocaine, concluding that the government had not shown that the officers had a reasonable belief that Wilson was armed and dangerous before conducting the pat-down search. On appeal, the government contends that the search did not violate the Fourth Amendment. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0435p.06	USA v. Gibbs     Western District of Michigan at Grand Rapids RONALD LEE GILMAN, Circuit Judge. Timothy Allen Gibbs appeals his jury conviction on one count of being a felon in possession of a firearm and the corresponding sentence of 108 months’ imprisonment. He was indicted on the basis of a handgun that was found in the basement bedroom of his mother’s residence, where he had been living. Gibbs has raised three issues on appeal: (1) that the district court abused its discretion and violated the terms of its own motion-inlimine order by allowing evidence of prior bad acts, (2) that the district court erred in allowing into evidence an out-of-court statement in violation of the Confrontation Clause of the Sixth Amendment, and (3) that the district court committed plain error by ordering Gibbs’s federal sentence to run consecutively to a sentence that he was serving for a state-court conviction. For the reasons set forth below, we AFFIRM Gibbs’s conviction, but VACATE his sentence and REMAND for resentencing.
07a0436p.06	Thomas v. Speedway     Southern District of Ohio at Cincinnati ALICE M. BATCHELDER, Circuit Judge. Plaintiff Mabel Kay Thomas (“Thomas”) appeals the district court’s grant of summary judgment in favor of Speedway SuperAmerica LLC (“Speedway”), which denied her claims for unpaid overtime wages under both federal and state law. The district court held that Thomas was a bona fide executive employee under 29 U.S.C. § 213(a)(1) and thus not entitled to overtime wages. The narrow issue on appeal is whether Thomas’s primary duty consisted of management, which is a requirement of the executive-employee exemption. We find that Speedway has satisfied its burden on this issue and AFFIRM the district court’s judgment.
07a0437p.06	Bailey v. Port Huron, et al     Eastern District of Michigan at Detroit SUTTON, Circuit Judge. Dorothy Bailey claims that the Port Huron Police Department violated her constitutional right to privacy by disclosing her name, hometown, photograph, phone number and husband’s occupation after prosecutors charged her in connection with a drunk-driving accident. Because a criminal suspect does not have a constitutional privacy right to the nondisclosure of this information, compare Paul v. Davis, 424 U.S. 693, 713–14 (1976), with Kallstrom v. City of Columbus, 136 F.3d 1055, 1062 (6th Cir. 1998), we affirm.
07a0438p.06	Smith, et al. v. Carbide Chem, et al     Western District of Kentucky at Paducah AVERN COHN, District Judge. This is an environmental case. Plaintiffs-Appellants Warren Smith, et al. (collectively referred to as Appellants), appeal the district court’s grant of summary judgment for Defendants-Appellees Carbide and Chemicals Corp., et al. (collectively referred to as Appellees). Appellants brought claims for intentional trespass, permanent private nuisance, and strict liability based on contamination caused by imperceptible particles, claiming harm to their real property. After briefing and oral argument, we determined that Kentucky law was unsettled regarding a claim of intentional trespass. Accordingly, we certified the following questions to the Kentucky Supreme Court: 1. Is proof of actual harm required to state a claim for an intentional trespass? 2. If the plaintiffs can prove a diminution in their property values due to an intentional trespass, do they have a right of recovery under Kentucky law? The Kentucky Supreme Court answered the first question “No.” The answer to the second question, as will be explained, requires that the district court’s decision granting summary judgment on Appellants’ intentional trespass claim be REVERSED because a factual dispute exists as to whether Appellants suffered actual injury. As to Appellants’ nuisance and strict liability claims, we also find that there are genuine issues of material fact and therefore REVERSE the district court’s grant of summary judgment on these claims.
07a0439p.06	Mohammed v. Gonzales     Immigration & Naturalization Service BOYCE F. MARTIN, JR., Circuit Judge. Aftab Mohammed petitions for review of an order rendered by the Board of Immigration Appeals denying his application for asylum, withholding of deportation, and Convention Against Torture claim. For the reasons set forth below, we DENY Mohammed’s petition for review.
07a0440p.06	Morales v. Mitchell     Northern District of Ohio at Cleveland KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellee/Cross-Appellant Alfred Morales (“Morales”) was convicted of kidnapping and aggravated murder in an Ohio state court and sentenced to death. He petitioned the district court for a writ of habeas corpus, arguing, inter alia, that his trial counsel was constitutionally ineffective and that the trial court erroneously struck a potential juror from the panel. The district court granted the petition, in part, vacating Morales’s death sentence on the ground that his trial attorney had rendered ineffective assistance of counsel (“IAC”) at the penalty phase of the trial. Respondent-Appellant/Cross-Appellee Betty Mitchell (“Mitchell” or “the state”) now appeals the district court’s issuance of the writ. Morales crossappeals the district court’s denial, in part, of his petition on the grounds that his counsel was not ineffective at the guilt phase of the trial and that the trial court did not err in striking a juror that it found was not death-qualified and lacked an adequate understanding of the proceedings. For the reasons set forth below, we AFFIRM the district court’s partial grant of the petition and issuance of the writ.