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

Olive founded National Foundation of America (NFOA) in 2006 and applied to the IRS for recognition of its Section 501(c)(3) status. That application was eventually denied He learned the “business model” as a development advisor and executive at National Community Foundation, which offered products similar to those later marketed by NFOA. The scheme involved highly-compensated insurance agents, who sold investment contracts that customers could purchase with cash or by transferring existing annuities, real estate, or securities to NFOA. Olive misrepresented NFOA’s age, assets, and IRS status, and misrepresented the financial consequences. Olive knew that NFOA paid its brokers commissions well above the industry rate, lost a significant portion of the obtained annuities’ value due to their early surrender, and diverted a portion of funds to Olive’s and others’ personal benefit.Olive was convicted of mail fraud under 18 U.S.C. 1341 and 1343 and of money laundering, 18 U.S.C. 1957; was sentenced to 372 months of incarceration; and was ordered to pay restitution of $5,992,181.24. The Sixth Circuit affirmed, rejecting challenges to the sufficiency of the indictment; evidentiary decisions, permitting the introduction of cease-and-desist orders issued by several states; and the sentencing calculation, with respect to Olive's role, vulnerable victims, and loss calculation. View "United States v. Olive" on Justia Law

Cooperating witness, “DEA1,” provided information concerning Middleton’s heroin trafficking, including phone numbers DEA1 used to contact Middleton. DEA1 identified Middleton’s residence as the drug distribution point. DEA1 set up a controlled heroin purchase. Surveillance units noticed a Silverado parked at the residence. Middleton agreed to deliver the heroin, stating he would leave in “ten minutes” to meet DEA1. A Denali arrived at Middleton’s residence. Men left minutes later with a large, dark-colored object, which was placed in the Silverado. Both vehicles headed toward the meeting area. State police stopped the Silverado. The sole occupant was Woods, driving on a suspended license; he verbally consented to a search, which revealed a black tool case, containing a substance that field-tested as heroin. Troopers also stopped the Denali, driven by Middleton. Brown was a passenger, in possession of $4,813, cash. Officers recovered cell phones during an inventory search, including one DEA1 had used to contact Middleton. DEA obtained a warrant to search Brown’s Detroit residence. The Sixth Circuit affirmed Brown’s convictions for possession with intent to distribute marijuana, possession of a firearm in furtherance of drug trafficking, and possession of a firearm after a felony conviction. The court noted concern that the warrant affidavit supplied a tenuous nexus between drug trafficking and Brown’s residence, but concluded that the totality of the circumstances provided probable cause. The court properly admitted a “drug ledger” into evidence and excluded evidence concerning Brown’s Michigan medical marijuana license. View "United States v. Brown" on Justia Law

In 1991 Charlene filed a paternity suit naming McCarley as the father of her younger son. McCarley stated that he would kill Charlene before paying support. In January 1992 a neighbor found Charlene dead, with a strap around her neck. Charlene’s children were at home. Three-year-old D.P. repeatedly looked at uniformed officers and stated: “It was him. He hurt mommy.” Days later, in the presence of Charlene’s mother, D.P. stated “Policeman hit my mommy.” A child psychologist elicited similar statements. In 1995, officers made a surprise visit to McCarley’s home on an unrelated matter. In his garage, they saw a deputy sheriff’s jacket and cap; remembering D.P.’s statements, they confiscated the items. After a second trial in 2007, McCarley was convicted for aggravated murder. The district court denied habeas relief, finding “harmless error” in the Ohio court’s unreasonable application of clearly established Sixth Amendment law by allowing a psychologist to read into evidence the testimonial hearsay statements of a three-and-a-half year-old declarant, where the declarant was not subject to prior cross-examination. On remand for further consideration in light of the 2015 Supreme Court decisions, Davis v. Ayala and Kelly v. McCarley, the Sixth Circuit again reversed: even under the appropriate deferential standard of review, the state court unreasonably applied clearly established federal law and that error was not harmless. View "McCarley v. Kelly" on Justia Law

Jones committed armed robberies in Michigan. Glenn was his appointed attorney. By letter, Jones asked the court to appoint a different attorney, but never requested to represent himself. On the first morning of trial, Jones explained that he was unhappy with his attorney. The court disagreed with Jones’s claim that Glenn was unprepared and denied Jones’s request to represent himself. Jones did not raise the issue again and, represented by counsel, appealed his convictions, unsuccessfully raising claims of ineffective assistance of counsel (failure to call certain witnesses), insufficiency of the evidence, and cruel and unusual punishment. He did not raise the self-representation issue. Jones then sought relief from judgment, arguing deprivation of: the right to represent himself; effective assistance of trial and appellate counsel; and due process. The trial court denied Jones’s motion, holding that Jones’s self-representation claim lacked merit, and that Jones could not establish “actual prejudice” to excuse his procedural default. Jones then sought federal habeas relief. The district court held that denial of Jones’s request to represent himself satisfied 28 U.S.C. 2254(d) as an unreasonable application of Faretta and that appellate counsel’s failure to raise the Faretta issue gave Jones “cause” and “prejudice” to excuse procedural default. The Sixth Circuit reversed. Jones cannot get around the procedural default, nor would he prevail on the merits. View "Jones v. Bell" on Justia Law

Churn, the owner of a Tennessee construction company, was convicted of seven counts of bank fraud stemming from two schemes in which he received bank loans ostensibly to construct houses, but performed little to no work. The district court sentenced him to 33 months in prison and ordered restitution of $237,950.50. The Sixth Circuit affirmed, rejecting arguments that the district court made evidentiary errors concerning admission of an email statement, admission of testimony concerning a permit, and admission of evidence about another transaction, and that the amount of restitution exceeded a statutory maximum under the Victims Restitution Act, 18 U.S.C. 3663A. View "United States v. Churn" on Justia Law

S.E., a developmentally-disabled woman, was forced out of her home at age 18. She and her daughter, B. age three, were often homeless and moved in with Defendants, who forced S.E. to clean, do yard-work, care for dogs, and run errands. S.E. and B., slept on the unfinished basement floor or a room, locked from the outside. Defendants threatened and physically assaulted S.E. and kept B. locked in the basement while S.E. did their bidding. Defendants rarely allowed S.E. and B. to bathe; they typically ate one meal a day. Defendants injured S.E. to force her to obtain prescription painkillers at the emergency room. After more than two years, S.E. was caught shoplifting a candy bar. When the police offered to take S.E. home, she told them about the situation. B. was rescued, “her hair was patchy and thin, she had no muscle tone, her stomach was distended, her rib cage was sunken in, she had dark circles under her eyes, her skin was poor, she was dirty, and an unpleasant odor emanated from her body.” The Sixth Circuit affirmed Defendants’ convictions of conspiracy, 18 U.S.C. 371; forced labor, 18 U.S.C. 1589(a) and 2; acquisition of a controlled substance by deception, 21 U.S.C. 843(a)(3); and kidnapping or attempted kidnapping within the meaning of 18 U.S.C. 1589(d). View "United States v. Hunt" on Justia Law

In 2001, a jury of an unknown racial composition convicted Ambrose of armed robbery, carjacking, and felony-firearm possession. At jury selection, Ambrose did not object to the racial composition of the venire. In 2002, after Ambrose had exhausted direct appeals, the Grand Rapids Press published a story about a computer glitch in Kent County that had systematically excluded African-Americans from the jury pool for several months. Following these revelations, Ambrose unsuccessfully moved for state post-conviction relief, alleging that his Sixth Amendment fair-cross-section right had been violated. Ambrose then filed a 28 U.S.C. 2254 habeas petition, which the district court conditionally granted. The Sixth Circuit remanded for determination of whether there was actual prejudice. The district court subsequently found that Ambrose had sufficiently demonstrated actual prejudice to excuse his procedural default and had established a prima facie violation of his fair-cross-section right. The Sixth Circuit reversed. Ambrose failed to show actual prejudice. “The question is not whether the petitioner missed his chance to stand trial before a more merciful jury panel or a panel with a particular racial balance, but rather whether there is a reasonable probability that a different jury would have reached a different result.” His argument “sounds much like the stereotyping arguments courts have sought to avoid,” View "Ambrose v. Booker" on Justia Law

In 2001, a jury convicted Garcia-Dorantes of murder in the second degree and assault with intent to do great bodily harm less than the crime of murder. Before his trial started, Garcia-Dorantes failed to raise a Sixth Amendment challenge to the racial composition of the jury venire. In 2002, the Grand Rapids Press published a story about a computer glitch in the Kent County software that had systematically excluded African-Americans from the jury pool from April 2001 through early 2002. As a result of the article, Garcia-Dorantes included a Sixth Amendment fair-cross-section claim in his direct appeal, which the state courts denied as procedurally defaulted due to his failure to object to the composition of the jury venire at trial. Garcia-Dorantes then filed a 28 U.S.C. 2254 habeas petition. The district court found that Garcia-Dorantes had sufficiently demonstrated cause and actual prejudice to excuse his procedural default and had established a prima facie violation of his Sixth Amendment fair-cross-section right. The Sixth Circuit affirmed. View "Garcia-Dorantes v. Warren" on Justia Law

In 2007, a jury convicted Etherton of possession with intent to deliver cocaine. After exhausting both direct and collateral appellate review procedures in Michigan, Etherton timely filed a federal petition for habeas corpus. The district court denied Etherton’s petition. The Sixth Circuit reversed in part and ordered issuance of a writ. Certain claims had been procedurally defaulted: that the anonymous tip presented at trial denied Etherton’s right to confrontation under the Sixth Amendment; that the prosecutor improperly vouched for the credibility of a witness during closing argument; and that Etherton’s counsel’s failure to object to the anonymous tip, as well as other alleged shortcomings, amounted to prejudicially ineffective assistance of counsel. Etherton is entitled to review based on ineffective appellate counsel. Appellate counsel failed to argue that failing to object to the anonymous tip constituted ineffective assistance of trial counsel. Because there was a Confrontation Clause violation that resulted in substantial prejudice, there is a reasonable probability that Michigan appellate courts would have found trial counsel constitutionally ineffective. The failure to include that argument was, therefore, prejudicial, and amounted to deficient performance of appellate counsel. It was an unreasonable application of federal law to hold otherwise. View "Etherton v. Rivard" on Justia Law

An FBI agent downloaded multiple files depicting children engaged in sexually explicit conduct from Cover’s computer. Cover led guilty to distributing child pornography over the Internet, 18 U.S.C. 2252(a)(2). The court calculated a sentencing guidelines range of 262 to 327 months, which included: a two-level increase for distributing material involving the sexual exploitation of a minor; a two-level increase for distributing material involving a minor under the age of 12; a four-level increase for distributing material that portrays violent or sadistic conduct; and a five-level increase for engaging in a pattern of activity involving the sexual exploitation of a minor. After considering Cover’s situation and the circumstances of the offense, the court sentenced him to 240 months in prison and ordered, as a special condition of supervised release, that Cover could not “own or possess any type of camera, photographic device, and/or . . . video recording equipment without the written approval of [his] probation officer.” The Sixth Circuit remanded with respect to the sadistic-portrayal enhancement, but rejected other challenges to the sentence. View "United States v. Cover" on Justia Law