Sixth Circuit Cases

6th Cir. Published Decisions for week of Dec. 24, 2007 (No Ky Cases)

Opinion	Short Title/District
07a0500p.06 2007/12/26	USA v. Smith     Western District of Michigan at Grand Rapids JULIA SMITH GIBBONS, Circuit Judge. On November 8, 2006, a jury found defendantappellant Lakento Brian Smith guilty of a number of drug-trafficking and firearm-possession charges. At a suppression hearing held prior to Smith’s jury trial, the district court denied Smith’s motion to suppress evidence seized from his residence during the execution of a search warrant, as well as evidence seized from his vehicle during a warrantless search. On appeal, Smith contends that the district court erred in admitting this evidence. For the reasons set forth below, we affirm the judgment of the district court.
07a0501p.06 2007/12/26	USA v. Maken     Southern District of Ohio at Dayton JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Walter M. Maken appeals his sentence for income tax evasion and willfully failing to file a federal income tax return. Maken contends that the district court erred in considering state tax losses in its calculation of his sentence and that the sentence imposed by the district court violated the Sixth Amendment. For the following reasons, we affirm the judgment of the district court.
07a0502p.06 2007/12/28	Simcox v. Simcox     Northern District of Ohio at Cleveland BOGGS, Chief Judge. Claire Simcox appeals from the decision of the district court ordering her to return to Mexico with two of the four children currently residing with her in Ohio, which return the district court found was required under the Hague Convention on Civil Aspects of International Child Abduction (“the Convention”) and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. Because of evidence of serious abuse to both Mrs. Simcox and the children at the hands of Mr. Simcox, the district court conditioned return of the children on certain “undertakings” designed to ameliorate the risk of harm to them upon their return to Mexico. Although we agree with much of the district court’s legal analysis of the Hague Convention, its ordered undertakings are problematic on the facts of this case, particularly its command that Mrs. Simcox herself return to Mexico. We therefore REVERSE and REMAND to allow the court to reconsider what conditions, if any, could ensure the safety of the children in Mexico during the pendency of custody proceedings.
07a0503p.06 2007/12/28	Ceraj v. Mukasey     Immigration & Naturalization Service RONALD LEE GILMAN, Circuit Judge. Seferin Ceraj and his wife, Irini Deda-Ceraj, both natives and citizens of Albania, entered the United States using fraudulent documents in March of 1997. In August of 1997, Ceraj filed an application for asylum, withholding of removal, and protection under the United Nation’s Convention Against Torture (CAT). Deda-Ceraj filed an application that was entirely derivative of her husband’s. Notices to Appear, charging them with being subject to removal, were issued in February of 2001. Following a merits hearing in March of 2005, an Immigration Judge (IJ) denied the petitioners’ request for relief and ordered them removed. The IJ found that Ceraj (1) filed a frivolous asylum application, (2) did not testify credibly, and (3) failed to establish either past persecution or a well-founded fear of future persecution in Albania. The Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s decision in a per curiam order. Ceraj and his wife timely petitioned for review. For the reasons set forth below, we DENY their petition.

6th. Cir. Published Decisions for Week of Dec. 17, 2007 (2 Ky decisions)

Opinion	Pub Date	Short Title/District
07a0486p.06	2007/12/17	USA v. Rutherford     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. In this case, Wayne County appeals the district court’s denial of its petition for the release of materials used in a grand jury indictment. We conclude that FED. R. CRIM. P. 6(e)(3)(E)(i), pertaining to the disclosure of grand jury documents, cannot be used to mandate such release. As a result, we AFFIRM the district court’s decision, although on different grounds than those stated by the district court.
07a0487p.06	2007/12/17	USA v. Carter     Middle District of Tennessee at Nashville ROGERS, Circuit Judge. Defendant Vernon T. Carter appeals his sentence of 15 months’ imprisonment for filing false income tax returns. At the sentencing hearing, the district court denied Carter’s motion for a downward departure/variance and enhanced Carter’s sentence by two levels for obstruction of justice. Carter raises three arguments on appeal: (1) the district court erred when it denied his motion for a downward departure and/or variance based upon “exceptional family circumstances”; (2) the district court failed to consider adequately a sentence of probation and home detention based on the sentence given to Carter’s niece for similar conduct; and (3) the district court erred when it enhanced his sentence by two levels for obstruction of justice. Because the district court did not err in applying the obstruction enhancement, and because it imposed a reasonable sentence, we affirm.
07a0488p.06	2007/12/17	USA v. Smith     Middle District of Tennessee at Nashville ROGERS, Circuit Judge. Carlton Victor Smith was convicted of bank robbery and sentenced to 405 months in prison following his participation in a scheme that was perpetrated by taking the family of a bank manager hostage and threatening to blow up the bank manager’s husband with a bomb unless the bank manager retrieved money from a bank vault. This court upheld Smith’s conviction and sentence in 2004, but the Supreme Court vacated his sentence in light of United States v. Booker, 543 U.S. 220 (2005). On remand, the district court sentenced him to 396 months in prison. Smith claims that his sentence is procedurally unreasonable because the district court failed to address an argument that Smith made with respect to reducing his Sentencing Guidelines range, and because the district court assertedly disregarded the Sentencing Guidelines and instead relied on the statutory maximum sentences for his crimes. He also argues that his sentence is substantively unreasonable because it is longer than the sentence received by an individual who played an identical role in a related bank robbery in the Eastern District of Tennessee. Because these arguments are without merit, we affirm.
07a0489p.06	2007/12/17	Certified v. Tenke Corp     Eastern District of Michigan at Detroit CLAY, Circuit Judge. Plaintiff-Appellant Certified Restoration Dry Cleaning Network, L.L.C. (“Plaintiff”) appeals the district court’s denial of its motion for preliminary injunction. Plaintiff’s underlying action seeks both monetary damages and injunctive relief for Defendant Tenke Corporation’s and Defendant Stephen Dubasik’s (collectively “Defendants”) breach of a noncompetition clause contained in the parties’ franchise agreement. For the reasons that follow, we REVERSE the district court’s order and REMAND the case to the district court with instructions to issue Plaintiff’s requested preliminary injunction.
07a0490p.06	2007/12/18	Gonter v. Hunt Valve Company     Northern District of Ohio at Youngstown MERRITT, Circuit Judge. This appeal, arising from a dispute between a law firm that represented qui tam plaintiffs and the defendant shipbuilders, raises the issue of whether the district court exceeded its discretion in awarding attorneys’ fees of $1,749,245 under the False Claims Act. The Plaintiff, a Cincinnati law firm, contends that the amount was unjustifiably low, while the Defendants urge this Court in a cross-appeal to find the lower court’s award excessive. Two additional issues are before us: first, the Defendants challenge the Plaintiff’s standing to bring this suit; and second, the Plaintiff argues that portions of the Defendants’ reply brief for the cross-appeal contravene Fed. R. App. P. 28.1(c)(4). The Plaintiff has standing to appeal the lower court’s decision, while the Plaintiff’s motion to strike portions of the reply brief is denied for failing to show prejudice. Turning to the substantive issues raised by both parties, we hold that, with the exception of the exclusion of fees related to the fee litigation, the district court’s calculation of attorneys’ fees falls within the broad discretion afforded under the statutory scheme. Consequently, with the exception of its ruling on the fee litigation issue, the district court’s decision is AFFIRMED.
07a0491p.06	2007/12/18	Beattie, et al v. Centurytel, Inc.     Eastern District of Michigan at Bay City R. GUY COLE, JR., Circuit Judge. Plaintiffs-Appellees brought this suit in federal district court, alleging that Defendant-Appellant CenturyTel, Inc. (“CenturyTel”) violated federal and state law by using deceptive billing practices to bill customers for WireWatch, a wire maintenance program. Plaintiffs-Appellees brought suit under the Federal Communications Act of 1934, 47 U.S.C. § 151 et seq., the Federal Communications Commission’s Truth-in-Billing Act, 47 C.F.R. § 64.2400 et seq., and the Michigan Consumer Protection Act, Mich. Comp. Laws § 445.901 et seq. Plaintiffs-Appellees moved the district court for class certification and for judgment on the pleadings on Count I of the Complaint, which alleged that CenturyTel engaged in unjust and unreasonable billing practices in violation of 47 U.S.C. § 201(b) and 47 C.F.R. § 64.2401. The district court certified Plaintiffs-Appellees’ claims and granted Plaintiffs-Appellees judgment on the pleadings as to Count I. CenturyTel appeals only the district court’s decision to certify the class. For the reasons discussed below, we AFFIRM the district court’s order to certify the Plaintiffs-Appellees’ class on its federal-law claims under Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”). We further remand the state-law claims to the district court to conduct a Rule 23 analysis.
07a0492p.06	2007/12/19	Shkulaku Purballori v. Mukasey     Immigration & Naturalization Service BOYCE F. MARTIN, JR., Circuit Judge. Figiri Shkulaku-Purballori petitions this Court for review of the decision by the Board of Immigration Appeals denying his request for asylum, or, in the alternative, Convention Against Torture relief or withholding of removal. Because we are without jurisdiction to review the denial of Shkulaku’s asylum application, we DISMISS that part of his petition, and because he cannot meet the high bar for qualification for withholding of removal, we AFFIRM the BIA’s decision denying his claim.
07a0493p.06	2007/12/19	Vincent v. Brewer Company     Southern District of Ohio at Cincinnati AVERN COHN, District Judge. This is a criminal case. Defendant-Appellant Antony Richardson (“Richardson”) appeals from his sentence of 120 months of imprisonment after pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The sole issue on appeal is whether the district court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection with “another felony offense.” For the reasons that follow, we AFFIRM.
07a0494p.06	2007/12/19	Pascual v. Mukasey     Immigration & Naturalization Service SUTTON, Circuit Judge. Hector Francisco-Pascual claims that he is eligible for asylum and contends that the Board of Immigration Appeals (BIA) erred in ruling to the contrary. Because Pascual has not established past persecution on account of his political beliefs and because at any rate he has no reasonable fear of future persecution based on changed country conditions, we affirm.
07a0495p.06	2007/12/20	USA v. Richardson     Middle District of Tennessee at Nashville AVERN COHN, District Judge. This is a criminal case. Defendant-Appellant Antony Richardson (“Richardson”) appeals from his sentence of 120 months of imprisonment after pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The sole issue on appeal is whether the district court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection with “another felony offense.” For the reasons that follow, we AFFIRM.
07a0496p.06	2007/12/20	USA v. Stout     Western District of Kentucky at Louisville KENNEDY, Circuit Judge. Defendant Michael Stout is charged with receipt and possession of sexually explicit visual depictions of minors under 18 U.S.C. §§ 2252A(a)(2)(B) & 2252A(b)(1) (receipt) and §§ 2252A(a)(5)(B) & 2252A(b)(2) (possession). Before trial, the government proffered evidence that Stout had pleaded guilty in state court to surreptitiously videotaping a 14- year old female neighbor while she showered. Stout moved in limine to suppress this prior bad acts evidence. The district court granted his motion finding that the unfair prejudicial effect of the evidence significantly outweighed its probative value. The government appealed pursuant to 18 U.S.C. § 3731. For the reasons that follow, we AFFIRM.
07a0497p.06	2007/12/20	Eidson v. TN Dept Child Serv     Eastern District of Tennessee at Greeneville McKEAGUE, Circuit Judge. This case arises from the temporary removal of plaintiffappellant Ronald Eidson’s minor daughters by Tennessee Child Protective Services and the Tennessee Department of Children’s Services after one of his daughters falsely accused him of sexual abuse. Full custody was restored to plaintiff eleven months later, after his daughter recanted her accusation. One year later, plaintiff filed suit, charging that various wrongful acts by child protective services workers had deprived him of liberty without due process. The district court dismissed the action as time-barred, rejecting plaintiff’s arguments that the accrual of his cause of action should be deemed to have been extended due to application of the continuing violation doctrine or, alternatively, abstention principles. The district court’s ruling is well-reasoned. For the reasons that follow, we affirm.
07a0498p.06	2007/12/20	USA v. Bolds     Western District of Tennessee at Memphis CLAY, Circuit Judge. Defendant Roxie Nicole Bolds (“Bolds”) challenges, on reasonableness grounds, the twenty-four-month sentence imposed by the district court following its revocation of Bolds’ four-year term of supervised release. Bolds argues that the district court committed procedural error by failing to adequately explain its upward departure from the four to ten month advisory sentencing range contained in the United States Sentencing Commission’s (“Sentencing Commission”) policy statements regarding supervised release revocation sentences. For the reasons that follow, we AFFIRM the sentence imposed by the district court.
07a0499p.06	2007/12/20	USA v. Lane     Western District of Tennessee at Memphis CLAY, Circuit Judge. Defendant Alandus T. Lane appeals his sentence of 68 months imprisonment, imposed after his conviction for wire fraud, arguing that the district court erroneously failed to calculate his advisory Guidelines sentence to credit nine months which he has already served pursuant to an undischarged sentence. According to Defendant, even though the district court correctly recognized the Guidelines as advisory and departed upward from the Guidelines at sentencing, the district court still committed reversible error under 18 U.S.C. § 3742(f) by calculating an incorrect advisory Guidelines sentence. Because the record reflects that Defendant’s sentence was not imposed “‘as a result of’ a misapplication of the Guidelines,” we AFFIRM the sentence of 68 months. Williams v. United States, 503 U.S. 193, 203 (1992) (quoting § 3742(f)(1)).
07b0014p.06	2007/12/21	In re: Johnson v.     U.S. Bankruptcy Court - Pikeville MARCIA PHILLIPS PARSONS, Bankruptcy Appellate Panel Judge. In this pre-BAPCPA preference action, the trustee appeals the bankruptcy court’s ruling that the lien on the debtor’s motor vehicle was protected from avoidance by the enabling loan exception, which excepts from avoidance certain security interests perfected within 20 days of the debtor’s possession of the collateral. Although the security interest in this case was not actually perfected until it was noted on the vehicle’s certificate of title a month after the debtor obtained possession, the court concluded that the security interest was deemed perfected under Kentucky law when the creditor tendered the appropriate documents and fees to the county clerk, an act which occurred 14 days after possession. Because the majority of the Panel concludes that perfection as defined by the Supreme Court in Fidelity Financial Services, Inc. v. Fink, 522 U.S. 211, 216, 118 S. Ct. 651 (1998), occurred more than 20 days after the debtor obtained possession, the bankruptcy court’s decision is reversed.

6th Cir. Published Decisions for Week of Dec. 10, 2007 (No.Ky Published)

Opinion	Short Title/District
07a0471p.06	Van Gorder v. Grand Trunk Western     Eastern District of Michigan at Detroit ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Elmer Van Gorder (“Van Gorder”) appeals the district court’s order granting summary judgment in favor of Defendant- Appellee Grand Trunk Western Railroad (“Grand Trunk”) in this negligence action filed pursuant to the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, et seq. Van Gorder claims that the district court erred in finding that there were no genuine issues of material fact regarding the reasonableness of Grand Trunk’s railcar inspections and that he had not established a prima facie negligence case. Finding no merit in Van Gorder’s contentions, we AFFIRM.
07a0472p.06	Arledge v. Franklin Cnty     Southern District of Ohio at Columbus BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs Frances Arledge and Jay Mitchell brought suit alleging due process violations under the state custody theory, the state-created-danger theory, and the unconstitutional policy or custom theory, stemming from defendants’ placement of their son in a non-foster home where he was subsequently shot and killed. The district court granted summary judgment in favor of defendants, finding that plaintiffs failed to show the requisite culpability to maintain a claim under any of the alleged theories of liability. We hold that plaintiffs have not shown the requisite culpability, and AFFIRM the district court’s ruling.
07a0473p.06	Richardson, et al v. CIR     Commissioner of Internal Revenue SUTTON, Circuit Judge. This appeal arises from income tax deficiencies and fraud-penalty assessments levied by the IRS and upheld by the Tax Court. Because the Tax Court did not clearly err (1) in finding that Homer Richardson fraudulently created sham trusts and underreported the couple’s income and (2) in finding that Gloria Richardson failed to show that she was entitled to innocent-spouse relief, we affirm.
07a0474p.06	In re: Curry v.     Southern District of Ohio at Dayton RALPH B. GUY, JR., Circuit Judge. Tidewater Finance Company (Tidewater) appeals from the judgment of the Sixth Circuit Bankruptcy Appellate Panel affirming the bankruptcy court’s order denying Tidewater’s motion for relief from the automatic stay to allow for the sale of the debtor’s repossessed automobile and overruling Tidewater’s objection to confirmation of the debtor’s Chapter 13 plan based on its “cram down” treatment of the claim secured by that automobile. Whether a bankruptcy appeal comes before this court by way of the Bankruptcy Appellate Panel (BAP) or the district court, our review is of the bankruptcy court’s decision. Koenig Sporting Goods, Inc. v. Morse Rd. Co. (In re Koenig Sporting Goods, Inc.), 203 F.3d 986, 988 (6th Cir. 2000). Because the bankruptcy court’s decision was made on stipulated facts, this appeal presents only legal issues that we review de novo. Id. Tidewater argues that its prepetition repossession of the automobile, a 2000 Saturn SL, limited the debtor’s rights to those available under Ohio law and precluded the debtor from modifying Tidewater’s claim under 11 U.S.C. § 1322(b)(2). Tidewater relies on the same authority and reiterates the same legal arguments as it did both before the bankruptcy court and on appeal to the BAP. After careful review of the record, the applicable law, and the arguments presented on appeal, we find that the bankruptcy court did not err in confirming the plan and denying relief from the automatic stay. Further, because the reasons supporting this conclusion are so ably articulated by the BAP, we find that issuance of a full written opinion by this court would be duplicative and would serve no useful purpose. Accordingly, we AFFIRM the bankruptcy court’s order for the reasons set forth in Tidewater Finance Co. v. Curry (In re Curry), 347 B.R. 596 (6th Cir. BAP 2006).
07a0475p.06	USA v. Koubriti     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. Karim Koubriti was the first defendant brought to trial as a terrorism suspect after September 11, 2001. His trial was a highly charged affair, and resulted in his conviction on two of four counts. Afterwards, it was discovered that the United States Attorney’s office in Detroit had committed numerous acts of misconduct in the prosecution of his case. The district court accordingly dismissed one count of his conviction without prejudice, and ordered a retrial on the second count for which he was convicted. Prior to the second trial, the government filed a superseding indictment replacing the count that had been ordered to be retried by the district court, albeit the new count involved some of the same conduct alleged in the first trial. Koubriti moved to dismiss, claiming that double jeopardy barred the new superseding indictment. The district court denied his motion, and this appeal followed. Because we find no double jeopardy is implicated by Koubriti’s retrial, we AFFIRM the district court’s decision.
07a0476p.06	USA v. Lalonde     Southern District of Ohio at Cincinnati CLAY, Circuit Judge. Defendant Paul M. Lalonde (“Lalonde”) appeals the conviction and 78-month sentence imposed by the district court following his plea of guilty to wire fraud, 18 U.S.C. § 1343, and income tax evasion, 26 U.S.C. § 7201. Lalonde challenges his conviction on the grounds of alleged violations of Federal Rules of Criminal Procedure 10 and 11. Lalonde appeals his sentence on the basis of the district court’s alleged misapplication of the United States Sentencing Guidelines (the “Guidelines”) and for unreasonableness. For the reasons that follow, we AFFIRM both the conviction and sentence imposed by the district court.
07a0477p.06	Peninsula Asset Mgmt v. Hankook Tire Co.,     Northern District of Ohio at Akron ROGERS, Circuit Judge. Plaintiffs, including a Grand Cayman Islands corporation, sued a South Korean corporation and a natural citizen of South Korea on breach of contract and fraud claims. Plaintiffs brought their suit in the United States District Court for the Northern District of Ohio on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a)(2). The district court granted summary judgment in favor of the defendants on all claims, and the plaintiffs appealed to this court. Because there are alien corporations on both sides of the controversy, this case lacks the complete diversity required for a federal court to exercise diversity jurisdiction under § 1332(a)(2). See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 580 n.2 (1999); Creaciones Con Idea, S.A. de C.V. v. Mashreqbank PSC, 232 F.3d 79, 82 (2d Cir. 2000); Impuls I.D. Internacional, S.L. v. Psion- Teklogix, Inc., 234 F. Supp. 2d 1267, 1272-74 (S.D. Fla. 2002). Contrary to the defendants’ argument, it makes no difference whether the plaintiff Grand Cayman Islands corporation has its principal place of business in the United States. It is well established that, under § 1332(a)(2), “even if a corporation organized under the laws of a foreign nation maintains its principal place of business in a State, and is considered a citizen of that State, diversity is nonetheless defeated if another alien party is present on the other side of the litigation.” Creaciones Con Idea, 232 F.3d at 82 (quoting Int’l Shipping Co., S.A. v. Hydra Offshore, Inc., 875 F.2d 388, 391 (2d Cir. 1989)). The jurisdiction in this case cannot, moreover, be predicated on § 1332(a)(3) even though that section has been interpreted as not requiring complete diversity. See, e.g., Dresser Indus., Inc. v. Underwriters at Lloyd’s of London, 106 F.3d 494, 498-99 (3d Cir. 1997). That section is inapplicable here because there is not a United States citizen on each side of the dispute. Therefore, the only applicable section is § 1332(a)(2), which requires complete diversity. Because complete diversity is lacking in this case, we reverse the judgment of the district court and remand the case for consideration of the need to dismiss for lack of subject matter jurisdiction.
07a0478p.06	Morgan v. ATF     Eastern District of Michigan at Detroit ROGERS, Circuit Judge. Plaintiff Kerry Morgan appeals the district court’s grant of summary judgment in favor of the defendant, the Bureau of Alcohol, Tobacco and Firearms. Mr. Morgan, who deals in firearms from his residential premises in Redford Township, Michigan, applied in 2003 for a renewal of his federal firearms license. Based on an opinion of the Township’s legal counsel that Morgan’s firearms business violated Redford zoning regulations, ATF denied his renewal application. Morgan filed a petition for judicial review of ATF’s final denial pursuant to 18 U.S.C. § 923(f)(3), and the district court granted ATF’s motion for summary judgment. Because ATF properly relied on Redford Township’s interpretation of its own zoning laws in denying Morgan’s federal firearms license, and because Morgan has presented no genuine issue of material fact, we affirm the district court’s grant of summary judgment.
07a0479p.06	Triad Intl v. So Air Transp     Southern District of Ohio at Columbus ALAN E. NORRIS, Circuit Judge. The bankruptcy trustee of Southern Air Transport, Inc. (“SAT”), a debtor in a Chapter 11 proceeding, seeks to recover a $100,000 payment made to defendant Triad International Maintenance Corporation (“TIMCO”) as an avoidable preference under the Bankruptcy Code. 11 U.S.C. § 547(b). TIMCO advances two theories in response: that it was a fully secured creditor at the time of the payment; alternatively, that the payment represented a contemporaneous exchange for new value, an exception to the usual rule prohibiting transfers of interest in the debtor’s property made within 90 days of the filing of the bankruptcy petition. 11 U.S.C. § 547(c). The bankruptcy court ruled in favor of the trustee in bankruptcy, and the district court affirmed. Because we hold that the trustee in bankruptcy failed to meet his burden of proving the elements necessary to establish that the payment to TIMCO was preferential, and thus avoidable under 11 U.S.C. § 547(b), we REVERSE the judgment of the district court and REMAND the case to the bankruptcy court for further proceedings consistent with this opinion.
07a0480p.06	USA v. Vanhook     Western District of Tennessee at Memphis RONALD LEE GILMAN, Circuit Judge. Charles Vanhook pled guilty to one count of being a felon in possession of a firearm. The district court sentenced him to 180 months of imprisonment and three years of supervised release after concluding that this offense, together with Vanhook’s prior criminal history, caused him to be classified as an armed career criminal within the meaning of the Armed Career Criminal Act (ACCA). Vanhook argues on appeal that the district court erred in determining that he met the ACCA classification. Specifically, he contends that his prior state conviction for the facilitation of a burglary of a building does not qualify as a “violent felony” under the ACCA. He postulates that the facilitation of a burglary of a business does not present a serious potential risk of physical injury to another. Vanhook therefore asserts that his sentence is per se unreasonable under United States v. Booker, 543 U.S. 220 (2005), and should be vacated. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0481p.06	USA v. Watkins     Southern District of Ohio at Columbus RONALD LEE GILMAN, Circuit Judge. This case arises from Gary Watkins’s conviction on multiple counts of armed robbery, conspiracy, and firearms violations. On six different occasions, Watkins and/or his accomplices brandished firearms in the abduction of employees of different banks and cash-lending institutions from their homes in the Columbus, Ohio area. The men took the employees—and in some cases their families—to the employees’ respective places of employment and forced them to open safes and vaults. Watkins and his accomplices then fled with the cash they removed. After a jury found Watkins guilty on all counts, the district court sentenced him to 1,772 months in prison. Watkins raises three issues on appeal. First, he challenges his convictions for the robberies of the three cash-lending institutions on the ground that the government failed to prove that those robberies had a de minimis effect on interstate commerce as required by the Hobbs Act. He next challenges his sentence, arguing both that imprisonment for 1,772 months violates the Eighth Amendment and that the district court misinterpreted the Sentencing Guidelines. Finally, he argues that he received the ineffective assistance of counsel during sentencing. For the reasons set forth below, we AFFIRM the judgment of the district court and DENY Watkins’s ineffective-assistance of-counsel claim.
07a0482p.06	JPMorgan Chase Bank v. Winget     Eastern District of Michigan at Detroit RONALD LEE GILMAN, Circuit Judge. Through a series of transactions between 1999 and 2002, JPMorgan Chase Bank and its predecessor served as agent for a number of lenders that had advanced credit to Venture Holding Company LLC, a company owned by Larry J. Winget and the Larry J. Winget Living Trust (hereafter collectively referred to as Winget). JPMorgan, on the basis of the various agreements between the parties, sought to inspect the financial records of two other companies owned by Winget after Venture filed for bankruptcy. The district court granted JPMorgan’s request for specific performance of the bank’s inspection rights, a decision that Winget has appealed. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0483p.06	Fox v. Eagle Dist Co     Eastern District of Tennessee at Knoxville GRIFFIN, Circuit Judge. Plaintiff James Fox filed a civil complaint against defendant Eagle Distributing Company (“Eagle”), alleging that his former employer Eagle violated his rights under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., the Tennessee Human Rights Act (“THRA”), TENN. CODE ANN. § 4-21-407, and the Tennessee Whistleblower Act (“TWA”), TENN. CODE ANN. § 4-21-407. Fox additionally raised a common law claim of retaliatory discharge. Fox now appeals from an order of the district court denying his Motion for Summary Judgment and granting Eagle’s Motion to Dismiss or for Summary Judgment. Specifically, Fox argues that the district court erred in granting summary judgment to Eagle on his retaliation claim under the ADEA. Finding Fox’s appeal to be without merit, we affirm the order of the district court. In so doing, we hold that Fox’s complaints to an Eagle customer about his relationship with Eagle were not protected activity under the ADEA.
07a0484p.06	Campbell v. PMI Food Equip     Southern District of Ohio at Dayton RONALD LEE GILMAN, Circuit Judge. PMI Food Equipment Group, Inc. closed its plant in Dayton, Ohio in 1995 and moved the operation to Piqua, Ohio after signing a tax-abatement agreement with the City of Piqua, Miami County, and the state of Ohio that resulted in favorable tax treatment for 10 years. In the process of closing its Dayton plant, PMI terminated all of the 66 hourly employees who worked there. The hourly workers and their spouses (collectively referred to as the “Workers”) sued PMI, Piqua, Miami County, the state of Ohio, and various other parties, asserting 33 causes of action arising under various state and federal laws in connection with the tax abatement, the closing of the Dayton plant, and PMI’s termination of its hourly workers. All but two of the Workers’ claims were dismissed by the district court, and the remaining two claims were resolved by the parties. The Workers timely filed this appeal. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0485p.06	Pfahler v. Natl Latex Products     Northern District of Ohio at Cleveland ROGERS, Circuit Judge. Plaintiffs are former employees of the National Latex Products Company (“NLP”) and former participants in and beneficiaries of the National Latex Products Company Employee Welfare Benefit Plan (“Plan”). They brought suit under § 502(a)(2) and § 502(a)(3) of the Employee Retirement Income Security Act (“ERISA”) against several parties after those parties allegedly breached fiduciary duties that they owed to the Plan. Among the parties named as defendants to the suit were NLP; Ross Gill, the president and Chief Executive Officer (“CEO”) of NLP; Glass & Associates, a business consultant to NLP; and Jay AuWerter, an agent for Glass & Associates. The district court in this case concluded that genuine issues of material fact existed as to whether all of the above defendants breached fiduciary duties to the Plan. The district court later concluded, however, that plaintiffs could not recover under either ERISA § 502(a)(2), which provides for derivative suits to remedy breaches of fiduciary duties, or ERISA § 502(a)(3), which allows for suits for “other appropriate equitable relief.” Accordingly, the court dismissed the claims under both provisions with prejudice. The parties raise numerous issues on appeal, but the primary issues before this court are whether the district court erred in determining that although (1) there are genuine issues of material fact with respect to whether NLP, Ross Gill, Glass & Associates, and AuWerter breached any fiduciary duties to the Plan and could consequently be held liable under §§ 502(a)(2) or (a)(3); (2) plaintiffs were barred from bringing suit under § 502(a)(2) because they sought to recover individually, rather than on behalf of the Plan; (3) plaintiffs could not bring an action under § 502(a)(3) because they sought money damages, as opposed to equitable relief; and (4) plaintiffs also could not bring suit under § 502(a)(3) because of their failure to comply with Federal Rule of Civil Procedure 23, which governs class action certification. We reverse because plaintiffs are permitted to seek relief from NLP, Ross Gill, Glass & Associates and AuWerter pursuant to § 502(a)(2). In light of this conclusion with respect to § 502(a)(2), plaintiffs are precluded from also obtaining relief under § 502(a)(3). Because of this resolution of the second issue, we need not address the third and fourth issues decided by the district court.

NONPUBLISHED INSURANCE LAW DECISION RE KY LAW

Baymon v. State Farm Ins Co
    Western District of Kentucky at Owensboro 07a0843n.06

MERRITT, Circuit Judge. Plaintiffs James and Lorrene Early Baymon obtained a homeowner’s insurance policy issued by defendant State Farm Insurance Company. After the Baymons lost their home in a fire, they filed a claim with State Farm. Due to material misrepresentations made to State Farm by the Baymons about their financial condition at the time of the fire and the suspicious origin of the fire, State Farm denied the claim and voided the policy. The Baymons filed suit against State Farm in Union Circuit Court in Morganfield, Kentucky, claiming breach of contract for failure to pay the loss claim, bad faith in denying the claim and violations of the Kentucky Unfair Claims Settlement Practices Act, KRS 304.12-230, and the Kentucky Consumer Protection Act, KRS 367.170. The case was removed by State Farm to federal by the district court. (J.A. at 35) The Baymons now appeal, alleging that genuine issues of material fact preclude summary judgment and that the district court erred as a matter of law on a variety of issues. For the reasons stated below, we do not regard the arguments presented by the Baymons as substantial or plausible, and we affirm the district court’s grant of summary judgment in favor of State Farm based on the Baymons’ false statements made to State Farm during the claims process which voided their policy.

6th Cir. Published Decisions for Week of Dec. 3, 2007 (No Published Kentucky Decisions)

Opinion	Short Title/District
07a0467p.06	Pepaj v. Mukasey     Immigration & Naturalization Service ALICE M. BATCHELDER, Circuit Judge. Petitioner Valentina Pepaj petitions for review of the order of the Board of Immigration Appeals (“BIA”), which dismissed her appeal of an Immigration Judge’s (“IJ’s”) order denying Ms. Pepaj’s motion to reopen her removal proceedings. Ms. Pepaj claims that she is entitled to a reopening of the proceedings. She asserts two alternative reasons: (1) because she was prejudiced in the earlier proceedings by her counsel’s ineffective assistance, or (2) because conditions in her country of nationality have changed. We conclude that Ms. Pepaj has not met the requirements for bringing a claim of ineffective assistance of counsel, and that we lack jurisdiction to review the BIA’s determination that she has not shown changed country conditions. We therefore deny the petition for review.
07a0468p.06	Marvin v. City of Taylor     Eastern District of Michigan at Detroit HAROLD A. ACKERMAN, District Judge. Plaintiff Frank L. Marvin alleges that three police officers of the City of Taylor, Michigan–Commander Don Helvey, Officer Matthew Minard, and Officer Jeffrey Shewchuk–used excessive force when arresting him on July 11, 2004. The District Court denied the Defendants’ summary judgment motion, which asserted qualified immunity to Marvin’s 42 U.S.C. § 1983 claim and governmental immunity to Marvin’s pendent state law assault and battery claims. For the following reasons we REVERSE the District Court’s denial of qualified immunity and governmental immunity on the grounds that the Defendants’ actions were objectively reasonable and therefore did not violate Marvin’s Fourth Amendment right to be free from unreasonable seizures.
07a0469p.06	Wagenknecht v. IRS     Northern District of Ohio at Cleveland VAN TATENHOVE, District Judge. On March 30, 2006, Carl R. Wagenknecht, Jr., (“Wagenknecht”) filed a complaint alleging a wrongful determination and levy on the part of the Internal Revenue Service (“IRS”) and seeking a redetermination of the decision. On May 30, 2006, the district court sua sponte dismissed the portion of the complaint challenging the income tax levies for lack of subject matter jurisdiction. Pursuant to I.R.C. § 6330(d)(1)(B), the court’s subsequent dismissal included a thirty (30) day period in which Wagenknecht could refile with the tax court the dismissed portion of the complaint. In addition, the district court, reaching the merits, sua sponte dismissed the remainder of the Complaint. Wagenknecht now appeals the district court’s Order. He essentially argues that the district court lacked the authority to sua sponte dismiss his complaint. For the reasons that follow, we will AFFIRM the portion of the dismissal that found there was no subject matter jurisdiction and REVERSE the portion of the dismissal which decided Wagenknecht’s claims on the merits.
07a0470p.06	USA v. Alexander     Western District of Michigan at Marquette SUTTON, Circuit Judge. Sheldon Alexander, a long-time resident of the Hannahville-Potawatomi Indian Community, located in the upper peninsula of Michigan, violated the terms of his supervised release through a series of alcohol-related incidents, and the district court imposed a new sentence. Alexander challenges one of his new conditions of supervised release, which requires him to live in Grand Rapids, Michigan, for one year. Because a district court may require a defendant to “reside in a specified place or area,” 18 U.S.C. § 3563(b)(13), and because the district court did not abuse its discretion in concluding that this condition “involves no greater deprivation of liberty than is reasonably necessary,” id. § 3583(d)(2), we affirm.

6th Cir. Published Decisions for Week of Nov. 26, 2007

Opinion

Short Title/District

07a0466p.06

Zhang v. Gonzales     Immigration & Naturalization Service ALICE M. BATCHELDER, Circuit Judge. At issue in this case is whether an adjustment of status constitutes an “admission” for purposes of 8 U.S.C. § 1227(a)(2)(A)(i), as the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) held. Finding that it does not, we GRANT the petition for review, VACATE the removal order, and REMAND for a new hearing.

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 exec