by
An undercover agent drove a confidential informant to purchase heroin. After Jackson sold the CI a gram of heroin, the CI asked Jackson if he knew where to get a pistol. They negotiated a price. While the CI went to the car for the money, Jackson walked to his residence to get the gun. Days later, Jackson told the CI that he had another gun. The agent drove the CI to meet Jackson. After the CI purchased a second gun. the CI asked whether Jackson wanted another drug customer, indicating the undercover agent. The CI then left the property with the pistol, returning to the car. Jackson subsequently walked to the vehicle and sold the agent heroin. Days later, officers executed a search warrant on the properties involved in these sales. At one, they discovered $3,050 and a spoon with heroin residue. At the other, they encountered Jackson's relative who admitted to flushing marijuana and cocaine base down the toilet when he heard officers entering. No guns were recovered. Jackson pled guilty as a felon in possession of a firearm and two counts of distribution of heroin. The court applied a four-level enhancement (U.S.S.G. 2K2.1(b)(6)(B)) for “us[ing] or possess[ing] a firearm in connection with another felony offense,” imposing a 100-month sentence. Without the enhancement, the range would have been 77-96 months. The Sixth Circuit vacated. Jackson made separate sales, without bringing both a gun and drugs to either or having reason to anticipate that the first sale would beget the second. Jackson did not use or possess either gun in connection with either drug sale. View "United States v. Jackson" on Justia Law

Posted in: Criminal Law

by
In 2009, Clardy pled guilty to possessing a firearm as a convicted felon and to possessing over 50 grams of crack cocaine with the intent to distribute it. He signed a “Waiver of Appellate Rights,” stating that Clardy “knowingly waives the right to challenge the sentence imposed in any collateral attack, including, but not limited to, a motion brought pursuant to 28 U.S.C. 2255 and/or 2241, and/or 18 U.S.C. 3582(c).” After ensuring that Clardy understood and had signed the agreement voluntarily, the court accepted his plea and sentenced him to 144 months' imprisonment. The Sentencing Commission later amended the Guidelines to reduce the offense levels for drug crimes. Clardy filed a motion under section 3582(c)(2), which allows a court to reduce a sentence that was based on a Guidelines range that has been lowered. The Seventh Circuit affirmed rejection of his motion. A defendant can waive “any right, even a constitutional right,” in a plea agreement. Clardy signed his agreement knowingly and voluntarily. By its plain terms, Clardy waived his right to file a 3582(c) motion. The specific terms within the agreement, not its general title, control its reach. References to specific statutes more clearly explain an agreement’s scope than do terms like “collateral attack.” View "United States v. Clardy" on Justia Law

by
Undercover officers attempting a controlled purchase of methamphetamine arrested Estrada upon finding meth in his pocket and a rifle and ammunition in his car. He pleaded guilty to possession of a firearm by an unlawful user of a controlled substance. Because of this conviction for an aggravated felony, 8 U.S.C. 1101(a)(43)(E)(ii), Estrada—a green-card holder—was placed in removal proceedings. Estrada appeared later with counsel, who conceded Estrada’s removability. Noting the unavailability of other relief, the IJ ordered Estrada removed to Mexico. Estrada was deported in 2009. Six years later, law enforcement discovered Estrada in the United States. He was charged with illegal reentry following deportation, 8 U.S.C. 1326(a); (b)(2). Estrada moved to dismiss, by collateral attack on the underlying deportation order, arguing that the IJ violated his due process rights by failing to advise him of the possibility of discretionary relief from removal under section 212(h) and alleging ineffective assistance of counsel. The Sixth Circuit affirmed the denials of Estrada’s motions to dismiss. A defendant charged with unlawful reentry may not challenge the validity of his deportation order unless he demonstrates that: he exhausted administrative remedies; the deportation proceedings improperly deprived him of the opportunity for judicial review; and the entry of the order was fundamentally unfair. Estrada had no constitutionally-protected liberty interest in securing discretionary relief and, therefore, cannot establish that the order was fundamentally unfair. View "United States v. Estrada" on Justia Law

by
Anwar, a U.S. citizen, was hired to work for MEG International in Dubai. Anwar alleges that, following her promotion, her supervisor, Ramachandran, began harassing her about working when she had young children; openly made comments about not needing highly-paid female employees; and expressed his disapproval of Anwar’s divorce, going so far as to meet with her husband. Anwar alleges that this culminated in her termination, one day after she initiated her divorce. Anwar sued in a Dubai court and obtained severance pay. She argues that Dubai’s courts could not provide a sufficient remedy for sex and marital status discrimination. Anwar filed a complaint in Michigan, alleging that she was impermissibly terminated because of her gender, religion, national origin, and marital status, citing Title VII; the Michigan Elliott-Larsen Civil Rights Act; and breach contract. The district court dismissed claims against Ramachandran for lack of personal jurisdiction and opened discovery for limited purposes: Investigating Anwar’s allegations that MEG International does business as MEG America and that the MEGlobal subsidiaries act as a single entity and Anwar’s allegation that Ramachandran and other MEG managers are employed by Dow. Dow obtained a protective order to prohibit depositions. The Sixth Circuit affirmed dismissal of all claims. Anwar did not allege facts, aside from those demonstrating possible macromanagement, that MEG International is the alter ego of MEG Americas. Under Michigan law, the separate entities will be respected unless “a contrary determination would be inequitable.” View "Anwar v. Dow Chemical Co." on Justia Law

by
Taglieri, a citizen of Italy, was studying in Chicago when he met Monasky, an American citizen. They married and together decided to move to Italy. Taglieri was licensed to practice medicine in Italy and would have had to meet onerous requirements to practice in the U.S.. Monasky had a fellowship in Milan. Monasky became pregnant. Monasky alleges that Taglieri was sexually abusive and frequently hit her. Taglieri acknowledges “smack[ing]” Monasky once. Taglieri’s work required frequent travel; Monasky encountered professional difficulties and did not speak much Italian. Monasky applied for jobs in the U.S., contacted divorce lawyers, and researched American childcare options. The couple also investigated Italian child-care. Monasky sought an Italian driver’s license; the two moved to a larger apartment under a lease in Monasky’s name. The couple disputes whether the ensuing weeks involved Monasky planning to stay or return to the U.S. After an argument, Monasky took baby A, sought refuge in a safe house, and left Italy with eight-week-old A. Taglieri obtained termination Monasky’s parental rights in Italy, and filed a petition in Ohio, seeking A's return. The Sixth Circuit affirmed that A’s habitual residence (the location that she should be returned to) was Italy, that Monasky had no definitive plans to return to the U.S. until the final altercation, and that the other Hague Convention requirements were satisfied: Taglieri had properly exercised his custody rights, A’s removal was wrongful, Monasky had not shown by clear and convincing evidence that Taglieri posed a grave risk of harm to A. If a child lives exclusively in one country, that country is presumed to be the child’s habitual residence. View "Taglieri v. Monasky" on Justia Law

by
From 2008-2014, Pain Center of Broward (PCB) issued cheap pain pill prescriptions; 60-65 patients a day arrived from many states. PCB’s owner, Shumrak, had no medical training. Seven of Eastern Kentucky’s largest drug trafficking organizations used PCB as their source for opioid pills. Elliott was PCB's security guard. When Elliott observed DEA agents or police watching the building, he warned patients. Elliot also shuttled prescriptions from the clinic to doctors for signatures. Frial-Carrasco was a doctor and was aware of many “red flag[s]” that PCB was a “pill mill.” Solomon was a PCB physician assistant; although doctor’s signed her prescriptions no doctor supervised her patient examinations. DEA agents raided PCB, arrested Shumrak; escorted clinic employees to an office, stating they were not under arrest and conducted a search, during which the employees were free to leave. Solomon made incriminating statements. An agent then read Miranda warnings to Solomon. A jury found Solomon, Elliot, and Frial-Carrasco guilty of conspiracy, assessed forfeiture of proceeds of $10 million. Applying then-applicable standards, the court credited them with $8 million forfeited by Shumrak and found them jointly and severally liable for the balance. The Sixth Circuit affirmed, holding that venue was proper in the Eastern District of Kentucky although the customers who were known to be taking pills to Kentucky were merely purchasers and no conspirator committed an overt act in Kentucky. A conspirator can be tried at the place where a conspiracy targets its acts. The court remanded for calculation of forfeiture amounts under the Supreme Court’s 2017 "Honeycutt" decision. View "United States v. Elliott" on Justia Law

Posted in: Criminal Law

by
FBI Agent Max began his investigation of two similar Michigan jewelry-store robberies—separated by 150 miles—with a chronological list of every phone number that used particular communications towers for any purpose (voice call, text, internet connection, etc.) regardless of provider (e.g., Verizon, AT&T). The “tower dump” evidence was obtained pursuant to the Stored Communications Act, 18 U.S.C. 2703(d). The FBI also had witness statements and surveillance videos from the robberies. The information led to the four defendants, who were convicted of Hobbs Act robbery, 18 U.S.C. 1951(a); use of a firearm in furtherance of the robbery, 924(c)(1)(A); conspiracy to commit robbery, 1951(a); use of a firearm in furtherance of the conspiracy, 924(c)(1)(A) & (C)(i); and being a felon in possession of a firearm, 922(g)(1) and 924(a)(1)(D)(2). The Sixth Circuit affirmed the convictions and sentences, rejecting arguments that a pretrial photo-array identification was unduly suggestive; upholding admission of the cell phone records under the statutory standard of “reasonable grounds to believe the records are material to an ongoing investigation”; upholding admission of expert and lay testimony about the cell-tower-location evidence; and upholding denial of a motion to sever the trials. The court noted the “overwhelming” evidence of guilt. View "United States v. Pembrook" on Justia Law

Posted in: Criminal Law

by
Debtor filed several unsuccessful lawsuits to invalidate Sandlin Farm's Deutsche Bank mortgage. Debtor, d/b/a Sandlin Farms sought Chapter 12 bankruptcy relief but did not propose to pay that mortgage nor a BoA mortgage on other property. Debtor filed adversary complaints to avoid the liens. The Trustee moved to dismiss the case due to inaccurate monthly reports and Debtor’s inability to generate sufficient income to implement his plan if the liens were valid. The Bankruptcy Court dismissed the Deutsche Bank adversary proceeding, citing res judicata. Debtor voluntarily dismissed the BoA proceeding but did not re-notice the confirmation hearing or amend the plan. The court denied Debtor’s motion to stay pending appeal of the Deutsche Bank dismissal and set a hearing on the Trustee's motion. Debtor resisted scheduling depositions and requested time to find new counsel. The Trustee then sought Dismissal as a Sanction for Failure to Cooperate with Discovery. Debtor did not appear at the hearing. The Bankruptcy Court dismissed (11 U.S.C. 1208(c)) based on inability to present a timely confirmable plan; unreasonable delay; and a continuing loss to the estate without reasonable likelihood of rehabilitation. The Bankruptcy Appellate Panel affirmed. Although Debtor had actual notice of the hearing, it was not reasonably calculated to give him sufficient notice of exactly what issues would be addressed nor an opportunity to be heard. Nonetheless, Debtor failed to refute that cause existed to dismiss the case, so the error was not prejudicial. View "In re: Haffey" on Justia Law

by
Team sells materials to help individuals profit in multi-level marketing businesses. Doe anonymously runs the “Amthrax” blog, in which he criticizes multi-level marketing companies and Team. Doe posted a hyperlink to a downloadable copy of the entirety of “The Team Builder’s Textbook,” copyrighted by Team. After Team served the blog’s host with a take-down notice under the Digital Millennium Copyright Act, 17 U.S.C. 512, Doe removed the hyperlink. Team filed suit, seeking only injunctive relief and that the court identify Doe. Doe asserted fair-use and copyright-misuse defenses and that he has a First Amendment right to speak anonymously. The court ultimately entered summary judgment for Team, found that unmasking Doe “was unnecessary to ensure that defendant would not engage in future infringement” and that “defendant has already declared ... that he has complied with the proposed injunctive relief” by destroying the copies of the Textbook in his possession such that “no further injunctive relief is necessary.” The Sixth Circuit remanded with respect to unmasking Doe; the district court failed to recognize the presumption in favor of open judicial records. View "Signature Management Team, LLC v. Doe" on Justia Law

by
Martin, proceeding pro se, filed a late notice of appeal. In response to a show cause order, he claims that he did not receive timely notice of the underlying judgment. Federal Rule of Appellate Procedure 4(a)(6) requires Martin to seek relief in the district court. He did not. The Sixth Circuit dismissed, concluding it lacked jurisdiction over his appeal. The timely filing of a notice of appeal in a civil case is a jurisdictional requirement. The losing party has 30 days to file a notice of appeal after entry of an adverse judgment, 28 U.S.C. 2107(a), but can move the district court for an extension based on “excludable neglect or good cause” or can move to reopen the time to file an appeal if it did not receive proper notice of the underlying judgment. Both options require a “motion” in which the losing party asks the district court for more time. The “motion” is not the same thing as the “notice” a party must file to appeal and the rules do not vest the district court with power to extend time without a motion in civil cases. View "Martin v. Sullivan" on Justia Law

Posted in: Civil Procedure