6th Circuit Published Decisions for Week of Apr. 16-20, 2007

Opinion	Pub Date	Short Title/District
07a0137p.06	2007/04/16	Bouggess v. Mattingly     Western District of Kentucky at Louisville CIVIL RIGHTS 1983; IMMUNITY; SUMMARY JUDGMENT BOGGS, Chief Judge. This civil rights case stems from the shooting death of Michael Newby by Officer McKenzie Mattingly in West Louisville. It comes before us on an interlocutory appeal from the district court’s denial of the appellant’s motion for summary judgment on qualified immunity and state-law immunity grounds. Before the district court, Angela Bouggess, the administrator of Newby’s estate, raised a Fourth Amendment claim under 42 U.S.C. § 1983 and various state-law tort claims. To decide this case, we need only ask whether an officer who employs deadly force against a fleeing suspect without reason to believe that the suspect is armed or otherwise poses a serious risk of physical harm is entitled to either qualified immunity or immunity under the law of Kentucky. We hold that he is entitled to neither. Accordingly, we affirm the judgment of the district court.
07a0138p.06	2007/04/19	Cookeville v. Upper Cumberland     Middle District of Tennessee at Cookeville ANNEXATION; PUBLIC UTILITIES ROGERS, Circuit Judge. In this case, we affirm the federal district court’s resolution of a dispute over one element of the compensation that Tennessee law requires when a city annexes territory and exercises its right to purchase electric utility property within the annexed territory. The federal court had jurisdiction because a federal agency, the Rural Utilities Service (“RUS”), was a party defendant. We reverse, however, a post-judgment order enjoining the city from providing electric service in this annexed area pending resolution of the compensation dispute.
07a0139p.06	2007/04/19	Revis v. Meldrum     Eastern District of Tennessee at Knoxville CIVIL RIGHTS 1983:  Judgment execution RONALD LEE GILMAN, Circuit Judge. Laschinski T. Emerson obtained a money judgment in a sexual-harassment lawsuit from a Tennessee trial court against her former employer Nathaniel Revis and his company, Oak Ridge Research, Inc. (ORRI). Revis appealed, but failed to post an appeal bond. Emerson subsequently sought and obtained two writs of execution for Revis’s real and personal property in Roane County, Tennessee to satisfy the judgment. Roane County Deputy Sheriff Larry Eaton, accompanied by Tracy Waldo, a paralegal from the law firm representing Emerson, appeared at Revis’s house to serve the writs. Under Eaton’s direction, private contractors seized Revis’s personal property and changed the locks on his residence. Deputy Eaton also ordered Revis to leave the residence and inquired about any cash that Revis was carrying on his person. Revis filed suit pursuant to 42 U.S.C. § 1983 against the persons and entities involved in executing the writs, alleging that the seizure of his residence and the search of his person pursuant to the writs violated his constitutional rights. The district court granted summary judgment to some of the defendants, dismissed all claims against the rest, and further ordered Revis to pay the private party defendants’ costs of litigation. For the reasons set forth below, we AFFIRM in part, VACATE in part, and REMAND the case for further proceedings consistent with this opinion.
07a0140p.06	2007/04/19	Sarr v. Gonzales     Board of Immigration Appeals IMMIGRATION
07a0141p.06	2007/04/20	USA v. Graham     Eastern District of Michigan at Detroit CRIMINAL:  BRADY RULE ROGERS, Circuit Judge. The criminal defendants in this appeal contend that the failure of the Government’s cooperating witness to produce fifteen boxes of evidence until late in the trial constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963). Defendants Kenneth Graham and Kyle Dresbach were convicted of conspiracy to commit mail fraud and to file false tax returns, conspiracy to commit money laundering, money laundering, and subscribing false tax returns. These charges were based on a kickback scheme in which the defendants caused Thyssen, Inc., a steel processing company, to overpay for equipment while a portion of the amount fraudulently charged was funneled back to the defendants through shell entities created by their attorney, Jerome Allen. Allen was an unindicted co-conspirator who acted as a cooperating witness for the Government pursuant to a plea agreement. Near the end of the defendants’ trial, Allen produced fifteen boxes of documents, some of which pertained to his representation of Graham. Graham and Dresbach argue that the district court erred by failing to find that the Government violated its obligations under Brady by not causing these documents to be produced earlier. The Government responds that these documents were not material under Brady and that there was no violation of Brady because the evidence was in the exclusive control of a cooperating witness and not the Government. Dresbach also raises issues involving alleged ineffective assistance of counsel, improper failure to sever the two cases, and error in the giving of a supplemental jury instruction after the jury had indicated that it had reached a verdict. Because the cooperating witness here was not acting on behalf of the Government, and the defendants’ other contentions do not warrant reversal, the convictions of both defendants are affirmed.
07a0141p.06	2007/04/20	USA v. Dresbach     Eastern District of Michigan at Detroit See USA v. Graham above, co-defendant.
07a0142p.06	2007/04/20	USA v. Kakos     Eastern District of Michigan at Detroit CRIMINAL:  Duplicity pleading CLAY, Circuit Judge. Defendant Frederick Kakos appeals his conviction for the interstate receipt of stolen property pursuant to 18 U.S.C. § 2315. Defendant was charged, in a single count indictment, with knowingly receiving a stolen trailer and the stolen meat contained within that trailer. On appeal, Defendant argues that the indictment was duplicitous, thereby compromising his right to a unanimous jury verdict, and that the district court committed plain error by failing to give the jury a special unanimity instruction which would have eliminated any such prejudice. For the reasons that follow, we AFFIRM Defendant’s conviction.
07a0143p.06	2007/04/20	West v. AK Steel Corporation     Southern District of Ohio at Cincinnati ERISA RETIREMENT PLAN RONALD LEE GILMAN, Circuit Judge. This is a class action lawsuit brought by early retirees in the AK Steel Corporation Retirement Accumulation Pension Plan (AK Steel Plan) who elected to receive their pension benefits under the Plan in the form of a lump-sum payment. The AK Steel Plan is a cash balance plan specifying that participants can elect to receive a lump sum equal to their “account balance” at the termination of employment rather than having to wait until they reach the normal retirement age of 65. According to the plaintiffs, the AK Steel plan’s failure to use what is known as the “whipsaw calculation” when determining the value of the lump-sum distributions for these early retirees caused a forfeiture of benefits in violation of the Employment Retirement Income Security Act (ERISA). The district court, in April of 2004, granted partial summary judgment in favor of the plaintiffs on the issue of liability. A year and a half later, the district court awarded the plaintiffs over $37 million in damages and more than $9 million in prejudgment interest. AK Steel timely appealed. For the reasons set forth below, we AFFIRM the judgment of the district court.