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

Sawyer, with co-defendants, formed A&E to recover salvageable materials (copper, steel, aluminum) from the 300-acre Hamblen County site of the former Liberty Fibers rayon plant, which contained buildings, a water treatment facility, and extensive above-ground piping. The defendants knew that many of the buildings contained regulated asbestos-containing material (RACM), such as pipe-wrap, insulation, roofing, and floor tiles, much of which was marked. Demolition did not comply with National Emission Standards for Hazardous Air Pollutants (NESHAP) governing the handling and disposal of asbestos. Workers were not provided with proper respirators or protective suits; some were asked to remove or handle friable asbestos without adequately wetting it. In a 2008 consent agreement, A&E agreed to correct the violations and comply with NESHAP during future removal and demolition. In 2009, the EPA terminated the agreement and issued an immediate compliance order. Federal agents searched the site, seized documents, and took samples of RACM. EPA, acting under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), cleaned up the site, at a cost of $16,265,418. In 2011, Sawyer and his co-defendants were charged. Sawyer pled guilty to conspiring to violate the Clean Air Act, 18 U.S.C. 371. His PSR calculated a guideline sentencing range of 87-108 months. The statutory maximum under 18 U.S.C. 371 is 60 months, so his effective range was 60 months. The Sixth Circuit affirmed Sawyer’s 60-month sentence and an order holding the co-defendants jointly and severally liable for $10,388,576.71 in restitution to the EPA. View "United States v. Sawyer" on Justia Law

Bankston was charged wire fraud, mail fraud, bank fraud, money laundering, identity theft, and a false statement offense in connection with three separate fraudulent schemes. In each scheme, she unlawfully obtained the personal identification information of individuals and used it to defraud commercial banks and the state and federal government. Before trial, Bankston wrote a letter to the judge complaining of a disagreement with her attorney: Bankston wanted to present as a defense her theory that evidence recovered from her home had been planted by a federal agent. Based on the letter, Count 23 charged Bankston with making false statements in matters within the jurisdiction of the judiciary, 18 U.S.C. 1001. The Sixth Circuit vacated her Count 23 conviction and remanded for resentencing, affirming her other convictions, despite claims of insufficient evidence, judicial bias, prosecutorial misconduct, ineffective assistance, and invalid waiver of counsel. Bankston’s Count 23 conduct did not clearly constitute a crime: “judicial function exception” applies when the defendant was a party to a judicial proceeding, his statements were submitted to a judge, and his statements were made in that proceeding. View "United States v. Bankston" on Justia Law

In 2009, Patel opened a pharmacy in the building where Dr. Fowler’s clinic operated and hired Shah as the manager. Shah paid Fowler to write prescriptions and send patients to Patel’s pharmacy. Patel introduced Fowler to Taylor, a “marketer” who would bring additional patients to Fowler’s clinic. Thoran, another marketer, would visit Patel’s pharmacy, to pick up prescriptions for 5-10 patients several times per week. The fraudulent prescriptions were resold on the street. Fowler and Thoran were convicted of conspiracy to commit healthcare fraud, conspiracy to distribute controlled substances, and conspiracy to pay or receive health-care kickbacks. During Fowler’s sentencing hearing, the district court failed to calculate the Guidelines range and failed to make findings about why the sentence that served as its “starting point” was appropriate. At Thoran’s sentencing hearing, the court agreed to the parties’ stipulated Guidelines range without making any findings about why it was appropriate. The court relied on erroneous factual findings in determining the restitution amount for each defendant and sentenced Fowler to 72 months’ imprisonment and payment of restitution of $1,752,957. Thoran’s sentence was 108 months with restitution of $2,632,854. The Sixth Circuit vacated the sentences and restitution orders, but affirmed Thoran’s convictions. View "United States v. Thoran" on Justia Law

Martin, Kentucky Mayor Thomasine Robinson, sought reelection. Her challenger, Howell, won by three votes. Husband James confronted and threatened to kill Howell; he was convicted in state court of terroristic threatening and menacing. Thomasine was charged with bribery, coercion, and intimidation. Testimony indicated that: Thomasine gave a woman $20 to vote for her and coerced voters to vote for her by absentee ballot; that her son Steven attempted to intimidate a voter; that James paid $10 for a vote; and that James gave an individual money with which to purchase votes. The jury returned a guilty verdict on conspiracy and vote-buying (52 U.S.C. 10307(c)) charges, but the court granted James acquittal on the conspiracy charge. Thomasine was convicted of vote-buying and conspiracy to violate civil rights (18 U.S.C. 241); Steven was found guilty of conspiracy and two counts of vote-buying, but acquitted of a third count. The court assessed a leadership enhancement to James for directing another to purchase votes and an obstruction of justice enhancement for behaving menacingly during a trial recess and sentenced him to an above-guidelines 40 months in prison. Steven was sentenced to 21 months and three years of supervised release, with a condition requiring him to abstain from the consumption of alcohol. Thomasine was sentenced to 33 months. The Sixth Circuit affirmed the convictions and sentences, rejecting challenges to the sufficiency of the evidence. View "United States v. Robinson" on Justia Law

In 2008, Javidan shadowed Shahab, who was involved with fraudulent home-health agencies. Javidan, Shahab, and two others purchased Acure Home Care. Javidan managed Acure, signing Medicare applications and maintaining payroll. She had sole signature authority on Acure’s bank account and, was solely responsible for Medicare billing. Javidan illegally recruited patients by paying “kickbacks” to corrupt physicians and by using “marketers” to recruit patients by offering cash or prescription medications in exchange for Medicare numbers and signatures on blank Medicare forms. Javidan hired Meda as a physical therapist. Meda signed revisit notes for patients that he did not visit. He told Javidan which patients were not homebound and which demanded money for their Medicare information. The government charged both with health care fraud conspiracy (18 U.S.C. 1347) and conspiracy to receive kickbacks (18 U.S.C. 371). At trial, Javidan testified that she did not participate in and was generally unaware of Acure’s fraudulent business practices. Meda called no witnesses. Javidan and Meda were sentenced to terms of 65 and 46 months of imprisonment, respectively. The Sixth Circuit affirmed, rejecting Meda’s claims that his conviction violated the Double Jeopardy Clause and that he was subjected to prosecutorial vindictiveness for refusing to plead guilty and requesting a jury trial in prior case and Javidan’s claims of improper evidentiary rulings and sentence calculation errors. View "United States v. Javidan" on Justia Law

From 2006 to 2008, Andrews asked friends and colleagues to loan him money, roughly two million dollars in total, explaining that he needed money to purchase property in Indianapolis or to improve property that he owned in the area. Andrews never owned, bought, or improved property in Indianapolis. Andrews mostly used the money to fund a day-trading account with TD Ameritrade. Most of the money vanished. Andrews’s victims lost over 1.4 million dollars. Andrews was convicted of wire fraud, 18 U.S.C. 1343, sentenced to 87 months in prison and ordered to repay the full amount his victims had lost. The Sixth Circuit affirmed, finding that all of the loans were part of a single “scheme . . . to defraud.” The court noted a common false statement of a need for funds, usually related to nonexistent Indianapolis property; a common group of victims, usually friends or colleagues, who loaned money to Andrews repeatedly; and a common purpose for the funds, usually the need to fund Andrews’s day-trading account. The final loan occurred on September 25, 2008, fewer than five years before the government indicted Andrews, so prosecution of the entire scheme was not time-barred. View "United States v. Andrews" on Justia Law

Giorgio was the Chief Financial Officer of Suarez, a direct-marketing company. He and his boss asked employees to donate $5,000 each to political candidates, promising that the company would reimburse the donations. When the scheme was disclosed, Giorgio admitted to soliciting money from “straw campaign donors” in violation of campaign-finance laws that then banned all corporate donations to candidates, 2 U.S.C. 441b, and individual donations of more than $5,000 per candidate in an election cycle. Federal law also bans people from “mak[ing] a contribution in the name of another person,” 52 U.S.C. 30122. He signed a plea agreement. After a jury acquitted his co-conspirators, he tried twice to withdraw his plea. The district court declined and sentenced him at the bottom of the (much-lowered) guideline range—to 27 months in prison. The Sixth Circuit affirmed. Giorgio is a sophisticated and well-educated businessman, not apt to misunderstand what he was signing. Giorgio did not show that there is a reasonable probability that he would not have pleaded guilty even if he could show conflicted counsel based on the company’s paying for his defense. Giorgio admitted his guilt and insisted on sticking to his plea even when asked, after trial, if he wanted to withdraw it. View "United States v. Giorgio" on Justia Law

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

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

Volkman, a University of Chicago M.D. and Ph.D. (pharmacology), board-certified in emergency medicine, was in financial distress after lawsuits. Hired by Tri-State, a cash-only clinic, he was paid $5,000 to $5,500 per week. Soon, pharmacies refused to fill his prescriptions, citing improper dosing. Volkman opened a dispensary in the clinic. The Ohio Board of Pharmacy issued a license, although a Glock was found in the drug safe. Follow-up inspections disclosed poorly maintained logs; that no licensed physician or pharmacist oversaw the actual dispensing process; and lax security of the drug safe. Patients returned unmarked and intermixed medication. The dispensary did a heavy business in oxycodone. A federal investigation revealed a chaotic, unclean environment. Tri-State fired Volkman, who opened his own shop; 12 patients died. Volkman and Tri-State’s owners were charged with conspiring to unlawfully distribute a controlled substance, 21 U.S.C. 841(a)(1); maintaining a drug-involved premises, 21 U.S.C. 856(a)(1); unlawful distribution of a controlled substance leading to death, 21 U.S.C. 841(a)(1) and 841(b)(1)(C), and possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. 24(c). The owners accepted plea agreements and testified against Volkman, The Sixth Circuit affirmed his conviction on most counts, and a sentence of four consecutive life terms. On remand from the Supreme Court, in light of Burrage v. United States (2014), the Sixth Circuit again found the evidence of but-for causation sufficient. View "United States v. Volkman" on Justia Law