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

While facing charges for conspiracy to engage in human trafficking, 18 U.S.C. 1594(c), Pennington improperly communicated with witnesses in the case and was charged with witness tampering, 18 U.S.C. 1512(b)(1). The 1594(c) conspiracy charge was dismissed when Pennington pleaded guilty to the witness-tampering charge. The district court applied the U.S. Sentencing Guideline that corresponds with his witness-tampering conviction, which prompted cross-references to other guidelines, including U.S.S.G. 2G1.1, which applies to certain human-trafficking offenses and supplies two possible base-offense levels. Subsection (a)(1) provides a base-offense level of “34, if the offense of conviction is 18 U.S.C. 1591(b)(1)”; subsection (a)(2) provides a base-offense level of “14, otherwise.” Although Pennington had not been convicted under 1591(b)(1), the district court used subsection (a)(1)’s base-offense level of 34 as its starting point and imposed a 29-month sentence.The Sixth Circuit vacated his sentence. Pennington is currently serving his term of supervised release. The district court plainly erred by misinterpreting and miscalculating the Guidelines. Pennington has not been convicted of violating 18 U.S.C. 1591(b)(1) and no guideline permits us to treat him as if he had been; U.S.S.G. 2G1.1(a)(2) provides his base-offense level, 14. View "United States v. Pennington" on Justia Law

Johnson was the councilman in Cleveland’s Buckeye-Shaker neighborhood for 41 years. Jamison was his executive assistant. For years, Johnson used his position to fraudulently claim federal reimbursements for payments he never made. He also secured employment for his children in federally funded programs, although they were not legally eligible to work in such positions. Johnson deposited their earnings into his own account. In addition, Johnson fraudulently claimed a series of tax deductions. He encouraged and assisted his son Elijah in submitting falsified records for Elijah’s grand-jury testimony. Jamison assisted Johnson in these crimes. Johnson and Jamison were convicted on 15 charges, including federal program theft under 18 U.S.C. 371, 666(a)(1)(A) and (2); tax fraud, 26 U.S.C. 7206(2); and obstruction of justice, 18 U.S.C. 1512(b) and 1519. Johnson was sentenced to 72 months in prison. Jamison was sentenced to 60 months.The Sixth Circuit affirmed, rejecting challenges to the district court’s loss calculations and to sentencing enhancements for being an organizer or leader of a criminal activity involving five or more participants, for using a minor, and for obstructing justice. The district court properly admitted “other acts” evidence of prior misuse of campaign funds. Any other errors in evidentiary rulings were harmless. View "United States v. Jamison" on Justia Law

In 1999, Kolov sought asylum and related protections. Kolov was removed to Bulgaria in 2012. In 2014, Kolov reentered the U.S. His prior removal order was reinstated. In an interview, Kolov indicated that he was a member of the “Roma” ethnic group and had been subjected to harassment, abuse, and physical violence in Bulgaria; the police were not interested in protecting the Roma. The asylum officer referred his case for withholding-only proceedings. Before his hearing, Kolov submitted a Form I-589, assisted by counsel, listing the same incidents that he described in his interview. At his 2019 hearing, Kolov was represented by counsel and testified in English. He recounted a 2012 incident for the first time. Kolov’s wife testified that she noticed that Kolov had bruises on several occasions during video calls when he was in Bulgaria. Kolov also submitted statements from family and friends, news articles, and country condition materials.The IJ denied Kolov’s application for relief, finding Kolov not credible regarding the alleged incidents of persecution; Kolov’s explanation for the omissions, that he was nervous and under stress, was “not credible.” The IJ concluded that Kolov failed to show government acquiescence to torture. The BIA found that Kolov’s omissions were substantially related to his claim and rendered him not credible. The Sixth Circuit denied a petition for review. The BIA’s decision contains no legal error. View "Kolov v. Garland" on Justia Law

Jarrett produces Tezos tokens cryptocurrency by “staking.” Jarrett claims staking uses existing Tezos tokens and computing power to produce new tokens, so he owes tax on the tokens only when he sells or transfers them and “realizes” income, 26 U.S.C. 61(a). The IRS's position was that Jarrett realized income when he received each token. Jarrett’s 2019 staking yielded 8,876 Tezos tokens; he “did not sell, exchange, or otherwise dispose of these tokens during 2019.” He reported those tokens as income and paid tax, then asked the IRS for a refund ($3,793). After six months, Jarrett filed a refund lawsuit, 28 U.S.C. 1346(a)(1), seeking a judgment that Jarrett was entitled to a refund; costs and attorney’s fees; and an injunction preventing the IRS “from treating tokens created by the Jarretts as income.”The Attorney General approved Jarrett’s refund request. The IRS issued a $4,001.83 refund check and a “Notice of Adjustment.” Preferring to litigate the case to judgment, Jarrett has “not cashed, and [does] not intend to cash, this check.” The district court dismissed the case as moot. The Sixth Circuit affirmed. Refund lawsuits exist for a single purpose: “the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected.” The IRS satisfies its repayment obligation when it issues and mails a refund check for the full amount of the overpayment. View "Jarrett v. United States" on Justia Law

LG Chem manufactured the LG HG2 18650 lithium-ion batteries that exploded in Sullivan’s pocket and caused him severe second- and third-degree burns. Sullivan obtained the batteries from a vape store in Michigan to use for his e-cigarette device. In Sullivan’s suit, LG Chem, a South Korean company, opposed personal jurisdiction, arguing that exercising personal jurisdiction over it in Michigan would be improper under Michigan’s long-arm statute and the Due Process Clause. Limited discovery revealed that LG sent at least two shipments of 18650 batteries directly into Michigan and had executed “two supplier agreements . . . with Michigan companies relating to 18650 batteries.” Neither party addressed whether any of the 18650 batteries that LG shipped into Michigan was ultimately one of the batteries that injured Sullivan.The Sixth Circuit reversed the dismissal of the suit. LG urged too narrow a view of personal jurisdiction. The Michigan district court may properly exercise personal jurisdiction over LG because it directly shipped its 18650 batteries into the state and entered into two supplier contracts with Michigan companies for 18650 batteries. The court noted that other courts have exercised personal jurisdiction over LG when LG conducts business related to its 18650 batteries in or ships its 18650 batteries into the forum state. View "Sullivan v. LG Chem Ltd." on Justia Law

In 2016, Salansky, the Great Smoky Mountains National Park’s Fire Management Officer, discovered a slow-moving fire covering less than an acre. Due to the upcoming Thanksgiving holiday, most of the Park’s staff were away. Eight days later (November 24), Salansky observed that building a fire line would be impossible. Salansky opted to let the fire burn, using the natural terrain for containment. On November 27, Salansky requested additional firefighting resources. A National Guard helicopter dropped water onto the fire. By evening, the fire had spread to 35-40 acres within Park boundaries. Salansky did not monitor the fire overnight. At 4:05 a.m., the National Weather Service issued a high-wind warning. By 7:30 a.m., Salansky estimated that the fire had grown to 250-500 acres. Burning embers created smaller fires a mile away. People in Gatlinburg observed heavy smoke and ash. A 10:58 a.m. call was the first communication between Park staff and any local official about the fire. Around 5:45 p.m., the Gatlinburg Fire Department received reports of fires within the city. Winds gusted to 87 mph and the fire grew to 5,000 acres. Total evacuation of the Gatlinburg area was ordered. Evacuation efforts were hampered by infrastructure damage. Ultimately, 14 people died, 191 were injured, 2,500 structures were damaged or destroyed, and more than 17,000 acres burned.The Sixth Circuit vacated the dismissal of “failure to warn” suits under the Federal Torts Claims Act (FTCA). Before filing suit under the FTCA, a claimant must “present” that claim to the agency, 28 U.S.C. 2675(a); the plaintiffs’ forms sufficiently enabled the Department of the Interior to investigate. On remand, to determine whether the claims are barred by the FTCA's discretionary-function exception, the district court should address whether certain publications constitute mandatory directives. View "Abbott v. United States" on Justia Law

Motorcycle gang members Nicholson and Sorrell were charged with conspiracy and aiding and abetting assault under the Violent Crimes in Aid of Racketeering (VICAR) statute. The district court instructed the jury that either of those two offenses could serve as a predicate offense for another count involving the use or carrying of a firearm during and in relation to a crime of violence, 18 U.S.C. 924(c). The jury convicted both men on those three counts and the convictions were affirmed. The jury did not explicitly answer which predicate offense met 924(c)’s crime-of-violence requirementThe Sixth Circuit affirmed the denial of their 28 U.S.C. 2255, motions to vacate their section 924(c) convictions. The 924(c) convictions rested on a valid predicate offense. While a VICAR conspiracy is not a crime of violence, a VICAR aiding-and-abetting assault with a dangerous weapon is because an element of the offense requires a finding of the use or threatened use of physical force. The jury was improperly instructed that it could base convictions for the 924(c) count solely on a conviction for VICAR] conspiracy but the error was harmless. View "Sorrell v. United States" on Justia Law

While serving a short sentence for domestic violence, Johnson caused a disturbance in a jail’s intake area. Officers were taking Johnson to his cell when he disobeyed orders to slow down. Another officer, Deputy Sootsman, stopped him. After a brief exchange, Johnson stepped in Sootsman’s general direction. Sootsman testified that he viewed this conduct as a threat. In response, he immediately grabbed Johnson’s neck, pushed him against the wall, and took him to the ground to be handcuffed. This force lasted about seven seconds. Investigators found that Sootsman’s actions violated jail policies. Sootsman pleaded guilty to a misdemeanor battery.Johnson sued Sootsman, citing the Eighth Amendment. The Sixth Circuit affirmed the summary judgment rejection of the claim. Johnson failed to meet the demanding standard of proving that Sootsman used force “maliciously and sadistically for the very purpose of” inflicting pain. Johnson’s claim fails if Sootsman used force out of a belief—even an unreasonable belief—that the force was necessary to control Johnson. The states may impose stricter limits on officers than the Constitution demands, so Johnson may try to seek relief under state tort law. View "Johnson v. Sootsman" on Justia Law

Based on a 1983 murder, a three-judge panel convicted Von Clark Davis of aggravated murder and sentenced him to death. On direct appeal, Davis’s sentence was vacated, but on remand, the same three-judge panel again sentenced him to death. The Sixth Circuit subsequently vacated Davis’s death sentence on appeal of his first federal habeas petition. A different three-judge panel again sentenced Davis to death. Davis again petitioned for a writ of habeas corpus. The district court denied the petition.The Sixth Circuit reversed in part and granted conditional relief on claims that the state violated Davis’s constitutional rights by enforcing his 1984 jury waiver against him at his third sentencing hearing in 2009 and that Davis’s trial counsel provided ineffective assistance at Davis’s 2009 sentencing hearing by failing to move to recuse a judge for bias and in failing to reasonably prepare and present mitigation evidence. The court rejected claims that Davis’s trial counsel provided ineffective assistance by failing adequately to advise him of the collateral consequences of a jury waiver and that Davis’s trial attorneys were constitutionally ineffective in failing to investigate and present mitigating evidence about the circumstances of Davis’s prior conviction, which provided the aggravating circumstance that made him eligible for the death penalty View "Davis v. Jenkins" on Justia Law

On January 18, 2019, then-16-year-old Sandmann and his classmates, attending the March for Life, had an interaction with a Native American man, Phillips, by the Lincoln Memorial in Washington, D.C. The boys were wearing “MAGA” hats and were impeding Phillips, who was attempting to exit the situation, which was becoming confrontational. A chaperone dispersed the students. Video of the incident went viral, and national news organizations, including the five defendants, published stories about the day’s events and the ensuing public reaction.Sandmann sued, alleging that the reporting, which included statements from Phillips about the encounter, was defamatory. The district court granted the news organizations’ joint motion for summary judgment, finding that the challenged statements were opinion, not fact, and therefore nonactionable. The Sixth Circuit affirmed. The articles at issue did not “embrace” Phillips’s version of events; they describe a contentious encounter, the meaning of which was hotly disputed by participants and witnesses. The online articles embedded a video of the incident. Whether Sandmann “blocked” Phillips, did not “allow” him to retreat, or “decided” that he would not move aside and “positioned himself” so that he “stopped” Phillips are all dependent on perspective and are not “susceptible” of being proven true or false under the circumstances. View "Sandmann v. New York Times Co." on Justia Law