Jun 11-15, 2007: 6th US Cir. PUBLISHED Decisions (NO Ky Cases)

Opinion	Pub Date	Short Title/District
07a0215p.06	2007/06/11	USA v. White USA v. Suhadolnik     Northern District of Ohio at Youngstown CRIMINAL: MEDICARE FRAUD CLAY, Circuit Judge. Defendant Richard B. White appeals his conviction for fourteen separate criminal counts, his sentence of 90-months imprisonment, $7,290,202 in restitution, and two years of supervised release, as well as the district court’s order denying his motion for new trial. Defendant Michael A. Suhadolnik appeals his related conviction for one count of wire fraud, as well as the district court’s order denying his motion for new trial. For the reasons that follow, we AFFIRM Defendants’ convictions; VACATE the district court’s order denying Defendants’ motions for new trial and REMAND for an evidentiary hearing; and VACATE Defendant White’s sentence and REMAND for resentencing.
07a0216p.06	2007/06/11	Geboy v. Brigano     Southern District of Ohio at Columbus HABEAS CORPUS ROSEN, J.:  After exhausting his state remedies, Petitioner commenced the present habeas action under 28 U.S.C. § 2254, advancing five claims of constitutional error. The district court granted the writ as to the first of Petitioner’s claims, but found that his remaining claims lacked merit. The Respondent warden, Anthony Brigano, now appeals this grant of relief to Petitioner, and Petitioner, in turn, challenges the dismissal of his remaining claims. For the reasons set forth below, we reverse the district court’s grant of relief to Petitioner and affirm the district court’s denial of relief as to the two other claims for which Petitioner has secured a certificate of appealability.
07a0217p.06	2007/06/12	Klepsky v. United Parcel Ser     Northern District of Ohio at Cleveland WHISTLEBLOWER BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff Thomas Klepsky claimed that he was terminated from Defendant United Parcel Service (“UPS”) in violation of the Ohio Whistleblower Protection Act and Ohio public policy. The district court granted UPS’s motion for summary judgment. We now affirm that decision for the following reasons.
07b0007p.06	2007/06/13	In re: Robert Fox v.     Northern District of Ohio at Youngstown BANKRUPTCY JAMES D. GREGG, Bankruptcy Appellate Panel Judge. Cash America Financial Services, Inc. (“Appellant”) appeals the bankruptcy court’s judgment holding that Robert R. Fox (“Debtor”) was not personally liable for the debt owed to the Appellant by the Debtor’s corporation, R.R. Fox, Inc. (“R.R. Fox”). In so holding, the bankruptcy court rejected the Appellant’s claim that the debt should be excepted from the Debtor’s discharge under §§ 523(a)(4) or (a)(6) of the Bankruptcy Code. For the reasons that follow, the bankruptcy court’s judgment is AFFIRMED.
07a0218p.06	2007/06/14	Thoroughbred Soft v. Dice Corp     Eastern District of Michigan at Bay City COPYRIGHT SOLOMON OLIVER, JR., District Judge. Plaintiff-Appellant Thoroughbred Software International, Inc. (hereinafter, “Thoroughbred”) appeals the award of damages and attorney’s fees in a case where the district court found Defendants-Appellees Dice Corporation and Clifford V. Dice (hereinafter, collectively, “Dice Corp.”) liable for copyright infringement. Thoroughbred appeals the district court’s denial of: (1) an award of actual damages for infringing software that was not used by Dice Corp.’s customers; (2) profits that Dice Corp. earned as a result of the infringement; and (3) attorney’s fees on the ground that Thoroughbred was not a prevailing party. For the following reasons, we REVERSE the district court’s judgment denying actual damages for the unused infringing software; AFFIRM the denial of profits; and VACATE the district court’s denial of attorney’s fees. We hereby REMAND this action to the district court to enter judgment in favor of Thoroughbred on its claim for actual damages for the unused infringing software in the amount of $183,794.25, and to determine whether Thoroughbred, as the prevailing party, is entitled to an award for attorney’s fees.
07a0219p.06	2007/06/15	Matovski v. Gonzales     Board of Immigration Appeals With this case, Petitioners Ljupco Matovski and Violeta Matovska, his wife, (together, the “Matovskis”) seek review of a decision of the Board of Immigration Appeals (“Board”) that found them deportable. Petitioners say they qualify for employment-based permanent resident status. The Respondent, United States Attorney General Alberto R. Gonzales, disagrees.
07a0220p.06	2007/06/15	Bu v. Gonzales     Board of Immigration Appeals MARTHA CRAIG DAUGHTREY, Circuit Judge. In this asylum case, petitioner Yidong Bu challenges the decision of the Board of Immigration Appeals (BIA) summarily affirming the immigration judge’s denial of Bu’s asylum application. Because we conclude that the immigration judge misapprended the nature of Bu’s claim that he had suffered past persecution in his native China based on political opinion, and because substantial evidence fails to support the denial of asylum, we find it necessary to remand the case to the immigration court for reconsideration.
07a0221p.06	2007/06/15	Walls v. Konteh     Northern District of Ohio at Toledo HABEAS CORPUS: MISTRIAL ALAN E. NORRIS, Circuit Judge. Warden Kelleh Konteh appeals from the judgment of the district court granting petitioner Lawrence Walls a writ of habeas corpus based upon its conclusion that the sua sponte declaration of a mistrial by the judge in his state-court trial violated petitioner’s right not to be placed twice in jeopardy. Walls v. Konteh, 418 F. Supp. 2d 962 (N.D. Ohio 2006). This appeal requires us to balance petitioner’s double jeopardy interest against the determination of the state trial judge that calamitous events occurring outside the courtroom – the September 11, 2001 attacks upon the World Trade Center and Pentagon – created the kind of “manifest necessity” that justified a mistrial. While there are undoubtedly considerations that weigh in favor of the contrary position, we conclude that the trial judge acted within the bounds of his discretion in view of the novel and fluid circumstances that existed at the time of his decision. Specifically, he expressed concern that the jurors would be so distracted by outside events that they would be unable to focus on the trial, thereby compromising petitioner’s right to a verdict based upon the evidence. Because this case comes to us in a habeas posture, a writ may issue only if we conclude that the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). For the reasons that follow, we hold that the Ohio Court of Appeals’ affirmance of the declaration of a mistrial was neither “contrary to,” nor an “unreasonable” application of, federal law. Consequently, the judgment of the district court must be reversed.
07a0222p.06	2007/06/15	Elias v. Gonzales     Board of Immigration Appeals PER CURIAM. In this asylum case, petitioner Najah Gorges Elias, a native of Iraq and Chaldean Christian, seeks reversal of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal from an oral decision of an Immigration Judge (“IJ”). For the following reasons, we grant the petition for review, vacate the decision of the BIA, and remand for a new hearing before another IJ.
07a0223p.06	2007/06/15	USA v. Bailey     Eastern District of Tennessee at Chattanooga CRIMINAL KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Ricky Travis Bailey (“Bailey”) pleaded guilty to conspiracy to distribute in excess of five grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B), and aiding and abetting possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. The district court sentenced Bailey to seventy months in prison. On appeal, Bailey argues that the district court erred in failing to state that the Sentencing Guidelines are advisory, that the sentence imposed is both procedurally and substantively unreasonable, and that the district court erred in denying Bailey’s request for a role reduction. We disagree, and for the following reasons, we AFFIRM the sentence pronounced by the district court.