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

The FBI became aware of the “Playpen” child pornography website on the dark web, gained control of the website and ran it for 13 days, tracking the registered users. The “Revenger” account accessed 205 postings, labeled: “11 YO boys fucking,” “girls changing on beach,” and “preteen videos girls hardcore.” With a warrant, the FBI traced the Revenger account to Libbey-Tipton’s IP address and computers’ MAC addresses at his Cleveland residence. A warranted search was executed. All of the seized devices showed indicia of child pornography in “previews” and were from Libbey-Tipton’s bedroom, the basement, and the garage. The previews did not find any evidence of child pornography on devices that belonged to the other residents--his mother, his brother, his girlfriend, and his brother’s girlfriend. The MAC addresses of the seized devices corresponded to images viewed by the Revenger account.Libbey-Tipton was indicted for accessing and possessing child pornography. The government was allowed to introduce evidence of Libbey-Tipton’s prior conviction of child molestation as evidence of his propensity to access and possess child pornography. Convicted, Libbey-Tipton was sentenced to 235 months in prison, 27 months below the advisory Guidelines range. The Sixth Circuit affirmed, rejecting Libbey-Tipton’s challenges to the admissibility of his prior conviction, the reasonableness of his sentence, and the effectiveness of trial counsel. The court also upheld the denial of his motion to suppress the search warrant that led to his identification as a Playpen user. View "United States v. Libbey-Tipton" on Justia Law

A man left a voicemail at former attorney general Holder's law firm, (Covington): Former U.S. Attorney General Eric Holder, I’m going to kill you. ... to murder you. My name is Atrel Howard. We had spoken in February of 2010. I was a United States unconstitutional convicted ... prisoner by the Common Pleas Court of Cuyahoga County ... through the second part of the clause of the double jeopardy law ... we had spoken. My name is Atrel Howard of Cleveland, Ohio. If you get this message you need to realize that I’m under unconstitutional law. ... I was sentenced to 50 months ... intentional assault of a federal agent or employee on the FBI agency premises.Howard was charged with the knowing and willful transmission in interstate commerce of a communication containing a threat to injure another, 18 U.S.C. 875(c). Covington’s server identified the caller as Atrel Howard, from a Cleveland, Ohio area code. An FBI agent and a probation officer were familiar with Howard’s voice. The telephone number belonged to Howard’s father. The jury instructions were jointly proposed by the parties. Convicted, Howard was sentenced to 30 months for his section 875(c) offense and his supervised release violation. The Sixth Circuit affirmed, rejecting arguments of insufficient evidence; that omitting the essential mens rea element violated Howard’s Fifth and Sixth Amendment rights and deprived the court of jurisdiction; and that the court erred in instructing the jury as to what type of communication would constitute a “true threat.” View "United States v. Howard" on Justia Law

Doggart, a nuclear engineer and former congressional candidate, believed that an Islamic community, “Islamberg,” was plotting a terrorist attack against New York City and began posting on Facebook that Islamberg had to be “utterly destroyed.” The FBI used a confidential informant to engage with him. Doggart recruited the informant to help him, describing the weapons they would use. Doggart traveled to meet with those he had enlisted, including the informant. After his arrest, Doggart (age 65) agreed to plead guilty to transmitting a threat to kill or injure someone in interstate commerce, 18 U.S.C. 875(c). The district court rejected the agreement for want of a factual basis. The government then charged Doggart with solicitation, 18 U.S.C. 373; solicitation to damage religious property, section 247; solicitation to commit federal arson, section 844(i); and making a threat in interstate commerce by telephone, 844(e). Convicted, Doggart was sentenced to 235 months.The Sixth Circuit remanded, finding that the court wrongly denied him the benefit of his plea bargain by applying the wrong legal test for true threats. On remand, the district court concluded that Doggart made a threat but refused to accept the plea bargain as not adequately reflecting the severity of his conduct. The Sixth Circuit affirmed in part. The court did not abuse its discretion in rejecting the Criminal Rule 11(c)(1)(A) plea deal. The court reversed the conviction for solicitation to commit federal arson; the target of the crime—a mosque—is not “used in” interstate commerce or in any activity affecting interstate commerce. The court agreed that “intentionally defac[ing], damag[ing], or destroy[ing]” religious “real property” using “a dangerous weapon, explosives, or fire,” necessarily involve the use of “physical force,” a “crime of violence” under the solicitation statute. View "United States v. Doggart" on Justia Law

In 2011, Manners pleaded guilty to assault with a dangerous weapon in aid of racketeering, 18 U.S.C. 1959(a)(3), and use of a firearm during and in relation to a crime of violence, 18 U.S.C 924(c). In 2016, Manners moved to vacate his 138-month sentence under 28 U.S.C. 2255 in light of the Supreme Court’s Johnson decision, arguing that his section 924(c) conviction could not be based on the statute’s residual clause because Johnson invalidated a similar residual clause in the Armed Career Criminal Act and his predicate offense did not have as an element the use, attempted use, or threatened use of physical force, so this offense could not fall under section 924(c)(3)’s elements clause. The Sixth Circuit affirmed the denial of Manners’s motion. The Supreme Court remanded in light of its 2018 holding, Sessions v. Dimaya, that the residual clause of 18 U.S.C. 16 was unconstitutionally vague and subsequently expressly determined that 924(c)(3)’s residual clause was unconstitutionally vague. On remand, the Sixth Circuit again affirmed. Manners’s predicate offense is a “crime of violence” under 924(c)(3)’s elements clause. The court employed a “categorical approach” and found 18 U.S.C. 1959(a) divisible, setting forth the separate offense of assault with a dangerous weapon in aid of racketeering. The dangerous weapon element of 1959(a)(3) elevates even a minimal type of assault into “violent force” sufficient to qualify as a “crime of violence.” View "Manners v. United States" on Justia Law

Hatcher escaped from confinement under a 46-month sentence for felon in possession of a firearm. Weeks later, police found Hatcher lying on the ground with a gunshot wound. While performing first aid, an officer observed a firearm tucked in Hatcher’s waistband. Hatcher left the hospital and was apprehended months later after being shot again. Hatcher pleaded guilty to felon in possession of a firearm and escape. The court gave notice of a possible upward variance, citing 18 U.S.C. 3553(a); the guidelines range was 41-51 months. Hatcher’s counsel described multiple stabbings and gunshot wounds, a physically abusive father, bipolar disorder and depression, attempted suicide, and extensive substance abuse. The prosecutor responded to Hatcher’s assertion that he carried the firearm for protection by stating that shell casings discovered from a shooting three days before Hatcher was shot matched the firearm that he possessed, which “suggest[s] ... retaliation.”The court noted Hatcher's many convictions, rejected Hatcher’s argument that he escaped out of fear, and imposed a 72-month sentence, stating that Hatcher’s prior, 46-month sentence was insufficient to deter him. The Sixth Circuit vacated. The district court relied on Hatcher’s alleged involvement in the uncharged shooting in fashioning his sentence, which constituted procedural error as a prejudicial surprise. The court relied on information that the government had not explicitly advanced as a basis for sentencing enhancement, without an opportunity for Hatcher to subject this information to critical examination. View "United States v. Hatcher" on Justia Law

In 2010, Hueso was sentenced to 20 years’ imprisonment for drug crimes. In 2013, Hueso unsuccessfully moved to vacate his sentence under 28 U.S.C. 2255. His second unsuccessful petition, in 2018, argued that his state convictions were not “felony drug offenses” and that his mandatory minimum should have been 10 years. A 2019 Ninth Circuit case subsequently undercut the substantive portion of the district court’s denial of relief. Hueso filed another petition. The Antiterrorism and Effective Death Penalty Act of 1996 permits a second 2255 motion only if there is new evidence of innocence or a new rule of constitutional law from the Supreme Court. Prisoners seeking relief under 28 U.S.C. 2241 must show that section 2255 is “inadequate or ineffective to test the legality of [their] detention.” Hueso argued that prisoners barred from filing a second 2255 motion may seek habeas relief under section 2241 based on new circuit court decisions. The Fourth Circuit has accepted that position. The Sixth Circuit affirmed the denial of relief. Hueso’s cited circuit court cases do not render a 2255 motion “inadequate or ineffective” within the meaning of section 2255(e); the two circuit decisions cannot establish section 2255’s inadequacy and his cited Supreme Court decision issued when his direct appeal was pending, so he could have cited it in the ordinary course. View "Hueso v. Barnhart" on Justia Law

The Sixth Circuit affirmed Cardin’s fraud conviction and 78-month sentence. Cardin worked with his sister, Natalie, to prepare a motion to vacate his sentence, 28 U.S.C. 2255. The filing deadline was June 8, 2016. On June 6, Cardin was unexpectedly hospitalized. The following day, Natalie filed the motion, signed “Walter A. Cardin by Natalie J. Cardin,” stating “under penalty of perjury” that she was Walter’s “attorney in fact,” and that Cardin was “otherwise unavailable to sign this motion and submit it in a timely manner.” About two months later, the court sua sponte indicated that it was considering dismissing the motion. Cardin filed a pro se motion for leave to add Cardin's signature to the original motion, with a letter from his prison case manager affirming that Cardin had been hospitalized. Cardin attached a 2015 document, by which he granted Natalie “unlimited” power of attorney to act on his behalf. Twenty-one months later, the court denied both motions.The Sixth Circuit reversed. Natalie satisfied the requirements of a ‘next friend’: an adequate explanation of why the real party in interest could not appear and “truly dedicated to the best interests of the [defendant].” That a putative next friend bears the burden of proving her status does not mean that the prisoner’s views, after the 2255 motion was filed, are irrelevant. Federal courts routinely enter show-cause orders directing parties, after a filing, to provide facts necessary to the court’s jurisdiction. View "Cardin v. United States" on Justia Law

Tarbett, wanted for assaulting an officer, was last known to be staying at Winchester Drive and allegedly had threatened to kill any officer who made contact with him. Burns was patrolling when a radio call described suspicious individuals walking near Winchester Drive. Burns responded and saw two men walking toward him. Burns says one tried to hide his face. Burns exited his car and engaged the men. Edwards identified himself as “Joe Eldridge,” while snickering. Burns patted down Edwards, who “took off” but fell as Burns caught up. The two struggled. Edwards said he was having a seizure. Other officers arrived. Burns eventually handcuffed Edwards. Edwards asked Burns to call 911; Burns threatened him with a taser. Edwards responded, “I feel like I’m going to pass the [expletive] out.” Five people were present when Deputies Burns and Patty escorted Edwards to Patty’s SUV. Edwards got away and began running. Burns grabbed him, his feet lifted off the ground kicking. Edwards kicked Patty near the groin. Burns and Edwards then fell to the ground. Witnesses disagreed on what happened. Sergeant Boyd arrived and saw Edwards lying on the ground, bleeding from his ears.Edwards’s treating physician said that Edwards would not survive because his “skull was fractured in the rear near the spinal cord” and that his injuries were inconsistent with a backward fall unless “he had been on a ladder.” A medical examiner found multiple contusions around Edwards’s head, chest, back, and abdomen, and two “linear, full-thickness fractures” to the occipital bone at the base of the skull and categorized the manner of death as a homicide. Edwards had, earlier that day, jumped across the hood of a running car. In a suit by Edwards’s survivors, the district court denied qualified immunity on an excessive force claim, finding the existence of a genuine dispute of material fact regarding reasonableness and violation of Edwards’s clearly established rights. The Sixth Circuit dismissed an appeal for lack of jurisdiction because it was premised on factual disputes and not questions of law. View "Adams v. Blount County" on Justia Law

Potts broke into homes to implement identify-theft schemes. One scheme required him to break into a home three times in order to “verify” fraudulent charges he made on the victim’s credit card. He pleaded guilty to unauthorized-access-device fraud and two counts of aggravated identity theft. Aggravated identity theft is not subject to a Guidelines calculation but carries a mandatory two-year sentence, 18 U.S.C. 1028A. Potts’s criminal history category was VI, the highest Guidelines category, resulting in a sentencing range of 30-37 months for unauthorized-access-device fraud. The district court indicated its intent to exceed the Guidelines. Following argument, the court departed upward four levels under U.S.S.G. 4A1.3, finding that Potts’s criminal-history category under-represented the seriousness of his criminal history and/or the likelihood that he would commit another crime. The new Guidelines range was 41-51 months; the court varied upward an additional nine months, imposing a sentence of 60 months’ imprisonment for unauthorized-access-device fraud. For two counts of aggravated identity theft, the court ordered that Potts’s sentences run consecutively, for a total of nine years of imprisonment. The court specified that Potts’s nine-year federal sentence would be served consecutively to his undischarged term of state imprisonment for domestic violence. The Sixth Circuit affirmed, finding the sentence procedurally and substantively reasonable. Potts’s pattern of committing the same crimes in the same way justified the district court’s conclusion that Potts would likely recidivate. View "United States v. Potts" on Justia Law

A jury convicted Dr. Chalhoub of defrauding health care benefit programs under 18 U.S.C. 1347. A Kentucky cardiologist, Chalhoub implanted permanent pacemakers in patients who did not need the devices or the tests that he ordered before and after surgery. On appeal, Chalhoub claimed that the district court repeatedly admitted evidence unduly prejudicial to him—and to which he could not effectively respond. The Sixth Circuit affirmed, acknowledging that “some of the government’s tactics here leave something to be desired.” Noting Chaloub’s failure to cross-examine, the court rejected a due process challenge to the admission of testimony by a doctor who claimed to have examined 20 of former Chaloub’s patients but could not name those patients. Chalhoub was not denied a right to be heard and the government did not base its case solely on allegations about those 20 victims. Chalhoub argued that he was severely prejudiced by testimony that he misbilled insurers for other unspecified procedures, but he did not seek clarification or additional information at trial. The court upheld the admission of testimony about Chaloub’s income and expenditures and testimony about his installation of a pacemaker in a former patient. View "United States v. Chalhoub" on Justia Law