Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

A podiatrist, primarily serving elderly patients, was convicted of healthcare fraud counts that resulted in a loss of $120. The podiatrist was sentenced to 18 months in prison followed by three years of supervision and ordered to pay more than $244,000, based on acquittal counts. The Sixth Circuit affirmed the conviction, but vacated and remanded the sentence. There was sufficient evidence that the podiatrist mailed bills for patients who were not actually treated and for work done by staff no longer employed at the office. Sentencing based on acquittal counts is not unconstitutional if those counts have been established by a preponderance of evidence, but the sentence was unreasonable. Although a court need only make a reasonable estimate of loss, the court relied solely on statistical evidence about loss from up-coding without a sound representative sample. The acquittal counts were part of a broad scheme to defraud and an award of restitution, based on those counts, was proper.

The defendant was convicted as an accessory after the fact to a Knoxville, Tennessee carjacking, rape, and two murders and for misprision of a felony. A videotaped interview, in which the defendant described conversations with the perpetrator, was admissible; the jury was properly instructed to consider the evidence only with respect to defendant's knowledge of the crime, not for the truthfulness of statements about the commission of the crime. The underlying statements made by the perpetrator to his friend, the defendant, were not testimonial in nature and their admission into evidence did not violate the Confrontation Clause. Rejecting a claim of duplicity, the court stated that being an accessory to several crimes is, in itself, a single crime. A medical examiner's testimony about sexual assault of the victims was probative; the government was required to prove commission of the underlying offense. The government was entitled to prove its case "free from the defendant's option to stipulate the evidence away." The prosecutor's closing argument, which included emotional characterizations of the crime and the defendant, appeals for justice, and statements concerning the credibility of witnesses, was not improper.

The defendant violated terms of supervised release that was part of his sentence for a crime involving social security fraud and was ordered to surrender to return to prison, but absconded. After pleading guilty to failing to appear to begin serving the reinstated sentence(18 U.S.C. 3146), the defendant was sentenced to an additional three years. The Sixth Circuit affirmed. The sentence was properly imposed under a section that states:"If the person was released while awaiting surrender for service of sentence after conviction for an offense punishable by imprisonment for a term of 15 years or more, the maximum punishment is 10 years of imprisonment" rather than a section referring to a maximum term of two years for a person for a person released after conviction of any other felony. While violation of supervised release is not a felony, as described by the statute, the defendant failed to appear to serve a term related to fraud, which was punishable by a term of 15 years.

In order to participate in a pre-trial release program, the defendant agreed to random drug testing. He submitted to five tests that involved urination in full view of an employee of the private company that conducts tests for the Kentucky courts. The district court dismissed a suit under 42 U.S.C. 1983. The Sixth Circuit affirmed, first acknowledging that the company acted under color of state law. The direct observation method of urine collection was not unreasonable under the Fourth Amendment. The manner of collection is a matter of judicial administration, not law enforcement; the court's interest in ensuring accurate testing outweighs the defendant's diminished expectation of privacy. Cheating is pervasive and there is no requirement of suspicion that an individual defendant will cheat. Rejecting tort claims of false light, intentional infliction of emotional distress, and intrusion into solitude, the court stated that the conduct did not go beyond the bounds of decency and that the defendant had no right to privacy under the circumstances.

The real estate multiple listing service (MLS) website policy prohibited distribution of information about exclusive agency and other nontraditional listings to public advertising sites through its feeds. The FTC determined that the prohibition was an anti-competitive policy in violation of the FTC Act, 15 U.S.C. 45. The Sixth Circuit affirmed after conducting a full rule-of-reason analysis. The MLS is a "contract, combination, or conspiracy" between competing brokers. The policy gave rise to potential genuine adverse effects on competition due to the MLS's substantial market power, the lack of substitutes for its service, and the policy's anticompetitive nature; the policy actually caused actual anti-competitive effects by narrowing information and choices available to consumers and reducing the number of discount-commission listings. Proffered pro-competitive justifications were insufficient to overcome a prima facie case of adverse impact.

A neighbor reported a break-in in progress at the home of the pastor after seeing a guest loading her belongings into a car. Officers responded, questioned and detained the guest in a police car, entered the house by opening a screen door, and encountered the pastor and his wife coming down the stairs. The pastor explained the situation and asked the officers to leave. The officers requested identification and followed the pastor up the stairs. They returned with the pastor, handcuffed, claiming he had drawn a gun. The wife claims that she was in pajamas and requested that the officers not enter the bedroom, that officers prevented her from following, and that she directed officers to a picture of the pastor and herself hanging on a wall. The officers took all three to the station and searched the house. They were released several hours later. The district court dismissed the guest's unlawful arrest claim and denied the officers a summary judgment determination of qualified immunity on the wife's claim. The Sixth Circuit reversed dismissal the guest's claim and affirmed with respect to the denial of qualified immunity. Disputed facts preclude summary judgment on the either issue.

Shareholders of Abercrombie & Fitch claimed that false statements by officers and directors in 2005 caused the price of the stock to rise and fall. The company formed a special litigation committee to investigate, as permitted under Delaware law. The district court dismissed the derivative action, based on the committee's findings. The Sixth Circuit conducted de novo review and reversed. The corporation had the burden of proving that the committee was independent, carried out its investigation in good faith, and reached a reasonable conclusion. One member of the committee, a board member subsequently named as a defendant, recused himself from consideration of certain allegations, but had relationships with the accused such that partial recusal was ineffective and he could not be considered independent. The recusal also left only one member able to consider certain accusations, where the company intended a two-member committee. The remaining member was a named defendant, a member of the audit committee, and played a role in the challenged actions.

After pleading guilty to possession of stolen fire arms, the defendant was ordered to pay restitution and sentenced to 43 months in prison, six months more than the sentencing guidelines range of 31-37 months. The Sixth Circuit affirmed the sentence. The district court properly enhanced the sentence for trafficking, based on possession of more than 12 weapons, and disposal of weapons to a drug dealer with reason to know that they would be used for illegal activity, even though that offense was not charged. The court did not abuse its discretion in adjusting the sentence based on defendant's admission that he intended to rob an undercover agent. The plea agreement, which allowed appeal of a sentence above the guidelines,allowed appeal of the order of restitution. The court reversed and remanded that order, which covered all of the 34 weapons stolen, rather than just the 12 guns covered by the plea agreement.

A pilot claimed that his employer subjected him to harassment and retaliation because he raised safety issues. His application for a position as an initial operating experience instructor was rejected and he filed a grievance. The Systems Board of Adjustment found no violation of the collective bargaining agreement, but the employer nonetheless interviewed the pilot for the position. After he was rejected for the stated reason of lack of international qualifications, the pilot unsuccessfully filed another grievance. While the Occupational Safety and Health Administration was investigating a claim of retaliation (49 U.S.C. 42121), the employer learned that the pilot had secretly taped hundreds of conversations and put him on administrative leave. The OSHA hearing officer and review board ruled in favor of the employer. The Sixth Circuit affirmed, stating that substantial evidence supported a conclusion that the pilot would not have been promoted even absent his safety and regulatory reports. Although the pilot engaged in protected activity and suffered an adverse employment action, the employer provided evidence of the point system by which it evaluated candidates, that it had an interest in international experience, and that the pilot did not interview well. Any incorrect evidentiary rulings constituted harmless error.

Defendant pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. 922(g)(1). The court treated a prior conviction for resisting arrest as a crime of violence, which, with his criminal history, generated a 77-96 month guidelines range, and sentenced him to 96 months. The Sixth Circuit vacated, holding that resisting and obstructing a police officer under Michigan law is not categorically a crime of violence. At re-sentencing, the district court concluded that defendant's 2004 pepper-spray conviction amounted to a crime of violence and again sentenced him to 96 months. The Sixth Circuit affirmed, noting the definition of "crime of violence" as use, attempted use, or threatened use of physical force that involves conduct that presents a serious potential risk of physical injury to another and that Michigan law punishes use of pepper spray by up to two years in prison. Michigan law presents little chance of conviction under circumstances that would not involve serious risk of injury and the federal law does not require that the underlying state offense be classified as a felony. The court did not err in enhancing the sentence, based on two juvenile adjudications, and the sentence was reasonable.