Anestis v. United States

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by Justia Inc
Cameron returned to Kentucky after serving as a Marine in Iraq and applied for VA Medical Benefits, but did not include verification of service (DD-214). Four months later, the VA verified his service, but its record did not reflect combat service or other eligibility; his status was “Rejected.” A week later, Cameron’s records were updated and he was retroactively enrolled. Cameron had been involved in killing a civilian family. His parents had contacted the Lexington VA mental health department and urged their son to seek help. Tiffany, his wife, told him that she and their baby would not continue to live with him unless he sought help. Days before his enrollment was corrected Cameron went to the Leestown VA. The intake clerk recognized that Cameron was in urgent need of help and talked to him for 40 minutes, despite not finding his enrollment. She concluded that Cameron was suicidal. No mental health professional was available at Leestown. She sent him to Cooper Drive VA. Cameron called his father later, stating that he had been turned away from Cooper Drive because he did not have his DD-214. Cameron drove home. He and Tiffany searched for the form. Cameron became frustrated and threatened Tiffany, who called 911. While on the phone, she heard a shot. Her husband had committed suicide. His family asserted claims under the Federal Tort Claims Act. The district court dismissed, holding that it did not have jurisdiction over a “benefits determination,” Veterans’ Judicial Review Act, 38 U.S.C. 511.The Sixth Circuit reversed. Whether the clinics had a duty to care for Cameron is an improper question for this stage. The government failed to show that the actions of the VA employees satisfied the test of the FTCA’s discretionary function exception. View "Anestis v. United States" on Justia Law

Pierson v. Quad/Graphics Printing Corp.

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by Justia Inc
Pierson, a Plant Facilities Manager at QG with 39 years of experience in printing and seven years with QG, was terminated after the CEO announced a comprehensive company-wide cost-cutting initiative. Pierson, then 62 years old, had never received a negative performance evaluation and was never disciplined, reprimanded, or warned about performance deficiencies. After he was fired, his job duties were assumed by a 47-year-old employee engaged in energy-procurement and capital projects management functions at another facility. The district court entered summary judgment for QG. The Sixth Circuit vacated, finding that the record established a genuine factual dispute regarding whether Pierson’s position was eliminated or whether he was simply replaced by a younger individual. View "Pierson v. Quad/Graphics Printing Corp." on Justia Law

Bradley v. Reno

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by Justia Inc
Ohio State Trooper Reno noticed a tractor-trailer stopped on the shoulder of the ramp connecting Route 46 to I-80. Worried that the truck posed a safety hazard, Reno approached and noticed that the engine was running and that no one appeared to be in the cab. Reno knocked on the truck door and, after a few minutes, Bradley emerged from the sleeper area of the cab. As he spoke to Bradley, Reno noticed that Bradley’s breath smelled of alcohol, his eyes appeared red and glassy, and his speech was slurred. When asked, Bradley admitted that he had consumed a “couple” “small pitchers” of beer and a “couple” bottles of beer an hour or two earlier at a truck stop 15 miles away. Bradley stated that he had parked on the shoulder to sleep, but he could not explain why he had stopped on the ramp rather than at a rest stop 200–300 feet away. Bradley failed two field sobriety tests and was swaying, losing his balance and failing to follow basic instructions. Reno arrested Bradley. A breathalyzer test at the Highway Patrol office confirmed that Bradley’s blood-alcohol content (.111%) exceeded the Ohio limit for commercial drivers (.04%). Denying a motion to suppress, the state court found that Reno had probable cause to arrest Bradley, but a jury acquitted Bradley. Invoking 42 U.S.C. 1983, Bradley sued. The district court awarded the defendants summary judgment, finding that the state court’s ruling precluded Bradley from relitigating probable cause. The Sixth Circuit vacated, finding that issue preclusion did not bar the suit. View "Bradley v. Reno" on Justia Law

United States v. Taylor

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by Justia Inc
In 2004 Taylor pled guilty to conspiracy to distribute and to possess, with intent to distribute, 392.2 grams of crack cocaine, 21 U.S.C. 841(a)(1), 841(b)(1)(A), and 846. At the time, offenses involving more than 50 grams of crack cocaine, with a defendant, like Taylor, who had a prior conviction for a felony drug offense had a minimum sentence of 20 years, 21 U.S.C. 841(b)(1)(A). The parties agreed that Taylor had a base offense level of 34 and a criminal-history category of VI. The district judge determined that the extent of Taylor’s cooperation justified a reduction of three levels, determined a range of 210–262 months (U.S.S.G. 5A), but rather than using Taylor’s 240-month statutory minimum as the starting point for downward departure, subtracted an additional three levels from Taylor’s base offense level, for a new guidelines range of 151–188 months, and sentenced him to 151 months. Under the 2010 Fair Sentencing Act, 21 U.S.C. 841(b)(1)(A), Taylor was subject to the same statutory minimum. The 2011 crack-cocaine amendments lowered the base offense levels for crack-cocaine offenses and the guideline range to which Taylor would have been subject absent a statutory minimum. Taylor unsuccessfully moved to modify his sentence, 18 U.S.C. 3582(c). The seventh Circuit affirmed. If a defendant received a sentence below his statutory minimum based on substantial assistance and is still subject to the same statutory minimum, later amendment of the guidelines does not lower his “applicable guideline range.” Taylor is subject to the same statutory minimum sentence as in effect at his original sentencing. View "United States v. Taylor" on Justia Law

United States v. Barbour

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by Justia Inc
More than 10 years ago, Barbour and accomplices robbed a convenience store and a motorist sitting in his vehicle in front of the store. Barbour was convicted of both aggravated robberies in a single proceeding. In 2013 Barbour pleaded guilty to possessing ammunition as a convicted felon, 18 U.S.C. 922(g). The district court concluded that the robbery in the convenience store’s lot and the robbery of the store constituted two offenses “committed on occasions different from one another” under 18 U.S.C. 924(e), so that Barbour had three qualifying offenses under that statute and was subject to a 15-year mandatory-minimum sentence. The Sixth Circuit vacated, holding that the burden to show that the offenses were committed on occasions different from one another, like the burden to show that the offenses were qualifying violent felonies, rests with the government. The prosecution did not show that the robbery of the motorist ended before the robbery of the convenience store clerk began. View "United States v. Barbour" on Justia Law

Gunner v. Welch

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by Justia Inc
The prosecutor offered petitioner a plea that would have eliminated the mandatory-minimum sentence of 10 years for drug trafficking with a sentence of three to 10 years. Petitioner was then 18 years old and had no felony record. The prosecutor disclosed the nature of “exceptionally compelling” evidence planned for trial Petitioner did not accept the plea because, he alleges, his attorney encouraged him to go to trial “if I got 10 years on a plea bargain, I had no chance to appeal … I was never told that if I had never been to prison before, the Judge was required to at least consider giving me the minimum sentence … that if I took the plea bargain and got the maximum 10 years sentence, it could be appealed.” After his conviction, petitioner’s mother explained the rejection of the plea to his first counsel on appeal, Long, who viewed the conviction as “shooting fish in a barrel.” He did not advise them of the filing deadline, but let the 180-day period for challenges outside the trial record pass. After the Ohio appeals court affirmed the conviction another attorney unsuccessfully tried to reopen the appeal on the basis of ineffective assistance by Long. Petitioner then sought federal habeas relief, acknowledging that his ineffective trial counsel claim should have been raised in a post-conviction proceeding, but arguing that failure to do so should be excused by Long’s actions. The district judge denied relief, reasoning that appointed appellate counsel was not obligated to provide advice outside the direct appeal, for which there is no constitutional right to an attorney. The Sixth Circuit reversed. View "Gunner v. Welch" on Justia Law

Tyler v. Anderson

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by Justia Inc
In1983, Leach was shot to death in the van from which he sold produce in Cleveland. Tyler and Head were indicted for aggravated murder and aggravated robbery. Head pled guilty to both and the death-penalty specification was dismissed. Tyler was twice convicted of aggravated murder. At both trials, Head testified against Tyler. After the second trial, the asked: If one group of jurors is positive that the aggravating factors outweigh the mitigating factors and wishes to recommend the death penalty, but the remaining jurors are just as positive that the mitigating factors are strong enough not to recommend the death penalty—and neither group is willing to change that decision, what is the proper procedure…. The court urged them to reach a decision, referring to time and expense. Tyler was again sentenced to death. Ohio courts affirmed. In 1999, Tyler sought habeas corpus under 28 U.S.C. 2254, with 64 claims, including that the prosecution failed to disclose that Head received sentencing consideration for testifying and was threatened with adverse consequences at the second trial if he did not testify. Another claim argued that the court improperly charged the jury. Head invoked the privilege against self-incrimination; the prosecutor refused to extend immunity. The district court denied a motion to compel and rejected the petition. In 2002, Tyler sent a letter to his habeas counsel, stating that the court failed to address the improper jury instruction. Tyler requested that counsel alert the court to its omission and reiterated the request twice. In 2013 he moved for relief from the judgment pursuant to FRCP 60(b)(6), asserting counsel’s inexcusable neglect. The district court denied the motion. The Sixth circuit affirmed. View "Tyler v. Anderson" on Justia Law

United States v. Kilgore

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by Justia Inc
Kilgore was performing community service at a police station when he stole two unloaded firearms from an evidence room and took them home. Convicted as a felon in possession of a firearm, 18 U.S.C. 922(g)(1) and 18 U.S.C. 924(a)(2), he was sentenced to 70 months. He did not contest a two-level enhancement under U.S.S.G. 2K2.1(b)(4) for “stealing” the pistols that created his status as a felon in possession of firearms, but argued that the court erred in applying a four-level enhancement to his base offense level for possessing a firearm “in connection with another felony offense” under U.S.S.G. 2K2.1(b)(6)(B). The Seventh Circuit agreed with his argument that the “another felony offense” language from the guideline means that the offense triggering application of the enhancement must be separate and distinct conduct from the underlying offense. The enhancement violated the language of the guideline, amounted to double counting and appeared to subject Kilgore twice to punishment for the same offense. View "United States v. Kilgore" on Justia Law

United States v. Smith

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by Justia Inc
The Smith brothers and others operated Target Oil, which conducted speculative resource drilling in Kentucky, Tennessee, Texas, and West Virginia. Wells they represented as sure-fire investments often produced virtually no oil and many wells were never completed. From 2003 to 2008, Target Oil received about $15,800,000 in investor funds but, according to the postal inspector, distributed only $460,000 in royalties. The brothers were arrested and accused of conspiring with others to defraud investors of millions of dollars. Michael was convicted of conspiracy to commit mail fraud, 18 U.S.C. 1349, and of 11 substantive counts of mail fraud, 18 U.S.C. 1341, and sentenced to 120 months in prison and ordered to pay $5,506,917 in restitution. Christopher was convicted by the same jury on seven counts of mail fraud and was sentenced to 60 months in prison and ordered to pay $1,652,075 in restitution. The Seventh Circuit affirmed, rejecting arguments that: the evidence was insufficient to support their convictions; the government offered evidence that constructively amended or varied the indictment; their sentences are procedurally and substantively unreasonable; one of the forfeiture judgments was excessive; the district court erred in excluding a defense expert witness; and items of evidence relating to the alleged fraud were erroneously admitted. View "United States v. Smith" on Justia Law

Prewett v. Weems

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by Justia Inc
From 2007 until 2011, J.W., then a minor, spent time with Weems and had sex with prostitutes hired by Weems. Weems filmed the encounters. In 2011, J.W. went to the police, who searched Weems’ home. They found a cell phone containing seven videos of J.W. having sex with the prostitutes and audio tapes of Weems, J.W. and prostitutes. Weems pleaded guilty to production of child pornography, 18 U.S.C. 2251(a). The district court sentenced him to 180 months. J.W. filed suit under18 U.S.C. 2255, seeking $1 million in damages. He offered the affidavits of two psychologists identifying the impact of the abuse and describing likely future treatment, but never attempted to prove actual damages. He relied on statutory presumptive damages ($150,000) and requested that the court multiply that number by the number of times Weems violated the criminal statute. The court agreed and concluded that Weems violated the criminal production statute seven times, multiplied the $150,000 presumed-damages floor by seven, and reduced the total ($1,050,000) to reflect the $1 million award requested in J.W.’s complaint. The Sixth Circuit reversed. The text, structure and context of the statute, together with the structure of related civil-remedy laws, establish that the $150,000 figure creates a damages floor for a victim’s cause of action, not for each violation. View "Prewett v. Weems" on Justia Law