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

In 2008, Arise, a Dayton community school (charter school), faced declining enrollment, financial troubles, and scandal after its treasurer was indicted for embezzlement. The school’s sponsor sought a radical change in administration, elevated Arise’s former principal, Floyd, to superintendent, removed all board members, and appointed Floyd’s recommended candidates to the new board. Floyd set up a kickback scheme, using former business partners to form Global Educational Consultants, which contracted with Arise. Global received $420,919 from Arise. While Global was being paid, Arise teachers’ salaries were cut and staff members were not consistently paid. Arise ran out of money and closed in 2010. The FBI investigated and signed a proffer agreement with Ward, the “silent partner” at Global, then indicted Floyd, Arise board members, and Global's owner. They were convicted of federal programs bribery, conspiracy to commit federal programs bribery, and making material false statements, 18 U.S.C. 666(a)(1)(B), (a)(2); 18 U.S.C. 371; 18 U.S.C. 1001(a)(2). Two African-American jurors reported that they were initially unconvinced; the jury foreperson, a white woman, reportedly told them that she believed they were reluctant to convict because they felt they “owed something” to their “black brothers.” This remark prompted a confrontation, requiring the marshal to intervene.The Sixth Circuit affirmed their convictions, rejecting arguments based on the Supreme Court’s 2017 decision, Pena-Rodriguez v. Colorado. Although Pena-Rodriguez permitted, in very limited circumstances, an inquiry into a jury’s deliberations, this case did not fit into those limited circumstances. View "United States v. Robinson" on Justia Law

The Bay Mills Tribal Police Department broadcast a lookout notice for Verwiebe after it received a report that he had assaulted his girlfriend. When officers located Verwiebe, he pulled a knife from his waistband, raised it over his head, and threatened to kill the officers. The officers eventually got control of him with the help of a bystander. In the police car, Verwiebe continued to threaten the officers and even spat on them. Verwiebe pleaded guilty to assaulting, resisting, or impeding a federal officer with a dangerous weapon. He was scored as a career offender under U.S.S.G. 4B1.1 based on his prior federal convictions for assault with a dangerous weapon with intent to do bodily harm, 18 U.S.C. 113(a)(3), and assault resulting in serious bodily injury, 18 U.S.C. 113(a)(6). At sentencing, the district court found that each conviction qualified as a crime of violence. The Sixth Circuit affirmed the sentence, applying the November 2016 Sentencing Manual. Because each crime combines common law assault with an additional element that, together, indicate “the use, attempted use, or threatened use of physical force,” both of them amounted to “crimes of violence” under Sentencing Guidelines section 4B1.2(a). View "United States v. Verwiebe" on Justia Law

In 2011, Conzelmann pleaded guilty to distributing cocaine, 21 U.S.C. 841(a)(1); (b)(1)(C). The Sixth Circuit affirmed his sentence, as a career offender, to 188 months in prison. The Supreme Court denied his certiorari petition. Conzelmann filed his first 28 U.S.C. 2255 motion, asserting ineffective assistance of counsel for failing to challenge the career offender enhancement, and that government agents “compelled” him to sell drugs. The district court denied the motion. The Sixth Circuit denied a certificate of appealability. Conzelmann moved (FRCP 60(b)) for relief from judgment, arguing that his presentence report contained a factual error. The Sixth Circuit denied permission to file a second or successive 2255 motion. Conzelmann then moved for consideration under the Supreme Court’s 2016 “Mathis” decision, arguing that he should not have been classified as a career offender because his prior conviction for possessing chemicals to manufacture drugs no longer qualifies as a predicate conviction. The Sixth Circuit denied relief. A second or successive collateral attack is permissible only if it rests on newly discovered evidence or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” 28 U.S.C. 2255(h). Mathis did not announce a new rule of constitutional law made retroactive; the holding was dictated by precedent and merely interpreted the statutory word “burglary” in the Armed Career Criminal Act. View "In re: Conzelmann" on Justia Law

Claimants, Wiggins and Allison, were at the Cleveland Airport for a flight to Orange County, California. The Drug Enforcement Administration (DEA), aware of their itineraries and that each had previous felony drug convictions, observed them engaging in conversation before they walked toward the security checkpoint. The government alleged, and Wiggins denied, that Wiggins consented to a search. Agents found $31,000 hidden in the lining of his suitcase. He could not answer why he was traveling with the money. He denied knowing Allison. An agent found $10,000 in Allison’s sock. Allison stated that he had won the money at a casino but could not provide details. A canine alerted to the odor of narcotics on the separate boxes containing the money. The government seized the funds and filed a civil in rem forfeiture complaint under 21 U.S.C. 881(a)(6), which allows the government to seize items it suspects were used in furtherance of criminal activity without charging the property’s owner with a crime. The district court granted the government’s motion to strike claimants’ claims to the currency. The Sixth Circuit reversed, noting that the government apparently moved to dismiss the claim before it engaged in any discovery. The government asserted that the claimant’s pleadings must do more than assert ownership and must provide sufficient detail to draft interrogatories allowing the government to test the claim of ownership. The procedural rules governing civil forfeiture actions do not demand such a heightened standard. View "United States v. $31,000.00 in U.S. Currency" on Justia Law

For two years, Defendant and two others, engaged in sexual acts with eight children. Defendant photographed and videotaped those sexual acts. Child 1, then in sixth grade, testified that Defendant forced him to watch pornographic videos, and threatened to kill Child 1’s family if he told anyone. Child 1 and Child 7, then in third grade, described specific sexual acts. Child 6 testified that Defendant provided the children with liquor and cigarettes. After two children told their mother about Defendant’s conduct, police executed a search warrant on Defendant’s home and seized electronics that captured Defendant’s sexual exploits on the children. Defendant was charged with seven counts of Sexual Exploitation of a Child and/or Attempted Sexual Exploitation of a Child, 18 U.S.C. 2251(a) and (e); and two counts of possession of child pornography, 18 U.S.C. 2252A. Defense witnesses testified that Defendant engaged in activities at night that he would not be able to remember, such as preparing food and talking in his sleep. The Sixth Circuit affirmed Defendant's convictions, upholding the district court’s decision to allow the children to testify by closed circuit television; admission of evidence pertaining to Defendant’s: grooming activity, sexual assaults on children, activity with children, and attempted production of child pornography; and the imposition of a 2,880-month sentence. View "United States v. Cox" on Justia Law

Defendant pointed a gun at an agent for a vehicle repossession company and threatened to shoot him and was indicted as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). At his arraignment, Defendant acknowledged his presence in federal court, but challenged the court’s jurisdiction, stated that the government was “trying to charge [him] with” a “commercial crime” and that the government could not be the victim of a commercial crime. Defendant asked the judge if he was “forcing [Defendant] to contract,” and referred to himself as a “flesh and blood living being,” whose detention on “U.S. soil” was unconstitutional. Weeks later, Defendant’s appointed counsel moved to withdraw after Defendant became “combative” during a meeting. Defendant told the court that he was present “on special appearance, [as a] third-party intervenor,” claimed that he was a “beneficiary and executor to the legal estate of the decedent,” and made other irrational statements. The court ordered new counsel. Days before trial, Defendant filed a pro se notice reiterating his jurisdictional challenge as a “Moorish American National.” After his conviction, Defendant challenged the court’s failure to order, sua sponte, a mental competency evaluation (18 U.S.C. 4241(a)). The Sixth Circuit affirmed. Defendant’s arguments "correspond to meritless rhetoric frequently espoused by tax protesters, sovereign citizens, and self-proclaimed Moorish-Americans." Defendant expressed "fringe" views but did not exhibit irrational behavior before or during trial or “act in a way that called his competency into question.” View "United States v. Coleman" on Justia Law

In 1998, a jury convicted Coley of attempted murder, two counts each of kidnapping and aggravated robbery, and three counts of aggravated murder (with the felony-murder aggravating circumstance attached to each count). He was sentenced to death. After unsuccessfully pursuing state-court relief, he unsuccessfully sought federal habeas relief in 2003. In 2017, Coley filed a new federal habeas petition. The Sixth Circuit denied Coley permission to file a second or successive petition under 28 U.S.C. 2254, based on his argument that the Supreme Court’s 2016 decision, Hurst v. Florida, rendered Ohio’s death-penalty scheme unconstitutional. Even if Hurst announced “a new rule of constitutional law,” the Supreme Court has not “made [Hurst] retroactive to cases on collateral review.” While not all second-in-time petitions are “second or successive,” it “cannot be that every new legal rule, including those not made retroactive on collateral review, also constitutes a new factual predicate,” and Coley has not shown that the facts underlying his claim “would be sufficient to establish by clear and convincing evidence” that no reasonable juror would have found him guilty. View "In re: Coley" on Justia Law

Three of Hand’s four wives died, two as victims of violent, unsolved home invasions. The death of Hand’s fourth wife, Jill, occurred while he was at home. Hand confronted and shot the intruder, who turned out to be his friend and employee Welch. An investigation revealed a plot between the men to kill all three women in order to receive life insurance proceeds. Hand was convicted of the aggravated murders of Jill and Welch, with death-penalty specifications, conspiracy to commit the aggravated murders, and an attempt to escape police custody after he was arrested. The jury recommended and the judge imposed the death penalty. After unsuccessful state appeals and post-conviction proceedings, Hand unsuccessfully sought federal habeas relief. The Sixth Circuit rejected several claims involving the adequacy of the voir dire at his trial to screen jurors because of pretrial publicity and ineffective assistance of counsel claims related to the voir dire; ineffective assistance claims related to mitigation evidence and the reintroduction of evidence of guilt during the sentencing phase; and the adequacy of evidence supporting the death penalty specifications. View "Hand v. Houk" on Justia Law

The Laniers were involved in a scheme fraudulently to obtain government contracts reserved for businesses owned by socially and economically disadvantaged individuals or by service-disabled veterans. During deliberations at their trial, a juror contacted assistant district attorney Nelson—a social acquaintance and a state prosecutor not involved with the Laniers's federal case. Nelson called the district court and told the judge that Juror 11 called her and said that there was a “problem” with the deliberations. According to the district judge’s account, Nelson told Juror 11 that they could not discuss deliberations and that Juror 11 should alert the judge. No juror alerted court personnel to problems with the deliberations. The court officer reported that the jury was “clearly divided ... and they’re angry with each other.” The jury convicted the Laniers of conspiracy to commit wire fraud; wire fraud; and major fraud against the U.S. Defendants unsuccessfully requested to interview the jurors and moved for a mistrial, stating that the jury had been at an impasse but then returned a verdict after a juror contacted a third party. No one ever interviewed Juror 11 about the telephone call nor interviewed any other juror about whether Juror 11 discussed the call with other jurors. Although the district court talked by phone with Nelson and counsel interviewed her after the trial, no one questioned Nelson in open court or under oath. The Sixth Circuit vacated and remanded for a Remmer hearing. View "United States v. Lanier" on Justia Law

In 2005, Defendant pleaded guilty to conspiring to distribute cocaine hydrochloride, 21 U.S.C. 846 and 841(a)(1), (b)(1)(A). The Probation Office determined that Defendant was to be held accountable for conspiring to distribute at least 12 kilograms of cocaine hydrochloride; under U.S.S.G. 4B1.1(a), Defendant was classified as a career offender with an enhanced offense level based on his prior felony convictions for controlled substances. Defendant’s offense level was reduced three levels for his acceptance of responsibility. His guideline range for imprisonment according to the 2004 Sentencing Guidelines was 262-327 months but section 841(b)(1)(A) required imposition of a minimum term of life due to Defendant’s prior felony controlled substance convictions, U.S.S.G. 5G1.1(b). The government moved for a downward departure based on Defendant’s substantial assistance. The court granted that motion and imposed a sentence of 211 months. In 2015, Defendant moved for a sentence reduction under 18 U.S.C. 3582(c)(2) and Guidelines Amendments 780, 782, and 788, arguing that the court departed downward from a guideline range of life and that this guideline range of life was lowered by Amendment 780. The Sixth Circuit affirmed the denial of the motion Defendant’s sentence was based on Defendant’s status as a career offender, not on a drug quantity; Defendant is ineligible for the reduction. View "United States v. Cook" on Justia Law