Aug 6-10, 2007 6th Circuit Published Decisions (1 Ky Published Case)

Opinion	Pub Date	Short Title/District
07a0297p.06	2007/08/07	USA v. Ellis     Northern District of Ohio at Cleveland GRIFFIN, Circuit Judge. Plaintiff, the United States of America, appeals an order of the district court granting defendant Dewayne Ellis’s motion to suppress. The government argues that the district court erred by suppressing incriminating evidence seized during a traffic stop and defendant’s post-arrest statements. For the reasons set forth below, we agree and reverse and remand.
07a0298p.06	2007/08/07	UAW v. GMC     Eastern District of Michigan at Detroit SUTTON, Circuit Judge. The fortunes of the General Motors Corporation and the Ford Motor Company, two of the world’s largest auto makers and two of this country’s largest employers, have risen and fallen many times over the last 50 years. Their most recent economic challenges stem from a variety of factors, including the emergence of vigorous international competition, the everchanging preferences of the American consumer and the fiscal strain of maintaining healthcare benefits for retirees well in excess of those provided by their foreign competitors. In 2005, GM and Ford tried to address one of these issues by reducing retiree healthcare benefits, only to be challenged by the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (the UAW), which represents hourly workers at both companies and which negotiated these healthcare benefits in the first place. Insisting that the retirees’ healthcare benefits had vested and could not be modified without the retirees’ consent, the UAW filed this declaratory-judgment action and eventually proposed a class of retirees from GM and Ford to defend its position. Through two similar agreements, the companies, the UAW and the classes proposed to settle their differences. A small percentage of retirees from each company (less than one half of one percent) objected to the proposed settlements and, when the district courts rejected their objections after a fairness hearing, appealed to our court. We have consolidated the appeals and now affirm.
07a0298p.06	2007/08/07	UAW v. Ford Motor Co     Eastern District of Michigan at Detroit See UAW v. GMC above
07a0299p.06	2007/08/08	USA v. Garcia, Nicholas     Eastern District of Michigan at Bay City ALICE M. BATCHELDER, Circuit Judge. Defendant Nicholas Garcia (“Garcia”) was indicted on one count of conspiring to possess with intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. The jury found Garcia guilty of this charge, and the district court sentenced him to 360 months’ imprisonment. On appeal Garcia contends that (1) the district court erred in denying the motion to suppress evidence found on his person and in the vehicle in which he was riding; (2) the district court erred in denying the motion to suppress evidence discovered during a search of his residence; (3) a prior Sixth Circuit panel erred in upholding the timeliness of the fourth superseding indictment issued against him; and (4) his case should be remanded for re-sentencing in light of United States v. Booker, 543 U.S. 220 (2005). We find no err in the district court’s admission of evidence found on Garcia’s person and in the vehicle in which he was riding, and conclude that the district court committed harmless error in admitting some of the evidence discovered during the search of his residence. Furthermore, we apply the law of the case doctrine in refusing to address the timeliness of the fourth superseding indictment. We therefore AFFIRM Garcia’s conviction, but because we conclude that his sentencing violated Booker, we VACATE his sentence and REMAND for further proceedings.
07a0300p.06	2007/08/08	USA v. High Tech Prod Inc     Eastern District of Michigan at Detroit KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant the Government of the Russian Federation (“Russia”) appeals from the district court’s order absolving Plaintiff-Appellee the United States of America (“United States”) of all potential liability with respect to certain isotopes. After taking custody of the isotopes, the United States filed an interpleader action to determine possessory and ownership rights to the property. Through a series of settlements and court orders, the parties in interest Defendant-Appellant Russia, Defendant the Government of Canada (“Canada”), Defendant High Technology Products, Inc. (“High Technology”), and Defendant Horos, Inc. (“Horos”)—resolved their competing claims to the isotopes. Over Russia’s objection, however, one of the district court’s orders memorializing the resolution of the claims to the isotopes released the United States of any liability with respect to the isotopes. Although the United States was entitled as a matter of course in the interpleader action to be discharged of all liability related to the distribution of the isotopes, because the United States was not similarly entitled to be discharged of all other liability related to the isotopes, including damage to the isotopes while in the custody of the United States, we VACATE the order of the district court and REMAND for further proceedings.
07a0301p.06	2007/08/08	USA v. Keller     Eastern District of Kentucky at Lexington R. GUY COLE, JR., Circuit Judge. Stephen Keller and Grant Sutherlin were convicted of multiple counts of fraud and money laundering in connection with their operation of a viatical company. At their initial sentencing hearings, the district court imposed the lowest possible sentence on both defendants, pursuant to the then-mandatory Sentencing Guidelines. Sutherlin was sentenced to 151 months of imprisonment and Keller received 168 months. Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), both defendants’ sentences were vacated and their cases remanded for re-sentencing. On remand, the district court imposed sentences on each defendant that varied downward substantially from their respective Guidelines’ minimums. The court sentenced Sutherlin to 36 months in prison, representing a variance of 115 months; Keller was sentenced to 120 months in prison, which constitutes a variance of 48 months. The Government now appeals Sutherlin’s sentence as substantively unreasonable. In addition, Keller appeals his sentence as both procedurally and substantively unreasonable. For the reasons described below, we VACATE Sutherlin’s sentence and REMAND for re-sentencing, and AFFIRM Keller’s sentence.
07a0302p.06	2007/08/09	USA v. Amos     Middle District of Tennessee at Columbia BOYCE F. MARTIN, JR., Circuit Judge. This case presents a single legal question of first impression in this Circuit — whether a defendant’s prior conviction for possession of a sawed-off shotgun can serve as a predicate “violent felony” for purposes of a sentencing enhancement under the Armed Career Criminal Act. The district court held that it does not and for the following reasons, we AFFIRM its decision.
07a0303p.06	2007/08/09	Grand Trunk Western v. Brhd of Maintenance     Northern District of Ohio at Toledo JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Brotherhood of Maintenance of Way Employees Division (“the Union”) appeals the district court’s grant of a preliminary injunction to plaintiff-appellee Grand Trunk Western Railroad, Inc. (“GTW”) enjoining the Union from exercising self-help over a dispute concerning changes to the parties’ Collective Bargaining Agreements (“CBAs”) and enforcing the requirements of the Railway Labor Act, 45 U.S.C. §§ 151-1164 (“RLA”). The Union argues that the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq. (“NLGA”), deprived the district court of jurisdiction to grant an injunction to GTW because the Union alleges that GTW has not made every reasonable effort to negotiate a new labor agreement. For the following reasons, we affirm the decision of the district court.
07b0010p.06	2007/08/09	In re: R.W. Leet Ele v.     Western District of Michigan at Grand Rapids MARCIA PHILLIPS PARSONS, Bankruptcy Appellate Panel Judge. In this preference action under 11 U.S.C. § 547, the bankruptcy court granted summary judgment in favor of the defendant, concluding that the alleged preferential payments had not been property of the debtor because they were trust funds under Michigan law. For the reasons that follow, the decision will be reversed and the proceeding remanded.
07a0304p.06	2007/08/10	Murphy v. Stargate Defense Sys     Northern District of Ohio at Cleveland ALAN E. NORRIS, Circuit Judge. This appeal arises out of the sale of Spectrum Infrared, Inc. (“Spectrum”), an Ohio corporation owned by plaintiffs John Murphy and James Smith. In 2005, Spectrum was sold to Stargate Defense Systems Corp. (“Stargate”), a business operated by defendants James Woodruff and Daniel Ross. The sale was structured as a stock exchange: plaintiffs traded their stock in Spectrum for stock in Stargate. It turned out, however, that the Stargate stock was worthless. Consequently, plaintiffs filed suit seeking to rescind the sale. At the same time, they sought to rescind two stock purchases made in 2002 that involved defendant Woodruff. Althoughthe amended complaint invokes both federal and state-law causes of action, the only issue on appeal concerns the scope of Ohio’s Securities Act (“Blue Sky Law”), Ohio Rev. Code § 1707.01 et seq. Following a bench trial, the district court granted plaintiffs the right to rescind the 2002 stock purchases pursuant to Ohio’s Blue Sky Law, but it denied relief on all other grounds. Plaintiffs appeal the district court’s ruling only so far as it denied them rescission of the 2005 stock exchange. Defendants cross appeal, arguing that plaintiffs should not have been able to rescind the 2002 stock purchases. For the reasons that follow, the district court’s decision permitting plaintiffs to rescind the 2002 stock purchases is affirmed. However, because we disagree with the district court’s conclusion that plaintiffs were not stock purchasers protected by Ohio’s Blue Sky Law we reverse that portion of its decision.
07a0306p.06	2007/08/10	Kuhn v. Sulzer Orthopedics     Northern District of Ohio at Cleveland R. GUY COLE, JR., Circuit Judge. Appellants Susie and Michael Kuhn (collectively, the “Kuhns”) appeal the district court’s order denying their motion, brought under Federal Rule of Appellate Procedure 4(a)(6), to reopen the time to file an appeal of the district court’s order enjoining them from obtaining certain discovery from Appellee Sulzer Orthopedics, Inc. (“Sulzer”) and from prosecuting certain claims in their Texas state-court action against their former lawyer, Appellee Tommy Jacks. The Kuhns argue that the district court abused its discretion in denying their motion to reopen because they satisfied all the requirements of Rule 4(a)(6) and their counsel had no duty to monitor periodically the district court’s docket for orders affecting the Kuhns’s legal rights that they might have wanted to appeal. For the reasons described below, we AFFIRM the judgment of the district court.
07a0307p.06	2007/08/10	Richey v. Bradshaw     Northern District of Ohio at Cleveland R. GUY COLE, JR., Circuit Judge. This case is on remand to us from the Supreme Court. On January 25, 2005, we reversed the judgment of the district court denying Kenneth Richey’s petition for a writ of habeas corpus, on the grounds that (1) Ohio law did not permit Richey to be convicted of aggravated felony murder on a transferred-intent theory, and (2) the state courts unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in holding that Richey had not been deprived of constitutionally effective representation. Richey v. Mitchell, 395 F.3d 660 (6th Cir. 2005). The Supreme Court vacated our judgment, holding that we erred in our interpretation of Ohio law on the transferred-intent issue. Further, the Court held that we had not properly examined whether the arguments and evidence that formed the basis for our ruling on Richey’s ineffectiveassistance- of-counsel claim were procedurally barred. Bradshaw v. Richey, 546 U.S. 74 (2005). Consistent with the Supreme Court’s remand instructions, we now revisit Richey’s ineffective-assistance claim. For the reasons set forth below, we hold that Richey did not procedurally default this claim, that we properly considered it on the merits, and that the record supports our original conclusion granting Richey habeas relief because his trial attorney did not function as counsel guaranteed by the Sixth and Fourteenth Amendments.
07a0308p.06	2007/08/10	USA v. Thomas     Western District of Michigan at Grand Rapids KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Kenneth Roy Thomas (“Thomas”) was convicted by a jury on one count of bank robbery. After a prior appeal and remand for resentencing, Thomas now appeals his sentence of 240 months in prison, five years of supervised release, a $4,500 fine, and ten dollars in restitution. Thomas argues that his sentence is unreasonable because the district court did not consider adequately the factors set forth in 18 U.S.C. § 3553(a). Because the record does not make clear the district court’s consideration of the relevant § 3553(a) factors and its reasoning for imposing the sentence that it did, we VACATE Thomas’s sentence and REMAND the case for resentencing.
07a0309p.06	2007/08/10	Elliot v. Lator     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. This case poses a curious procedural and jurisdictional question: In a civil rights action in which defendants are denied qualified immunity by the district court, do we have jurisdiction to hear an interlocutory appeal of this denial under the exception carved out in Mitchell v. Forsyth, 472 U.S. 511 (1985), if the defendants have not accompanied their assertion of qualified immunity with a motion to dismiss or for summary judgment? We hold that failure to file such a motion runs contrary to the key purpose of qualified immunity, as articulated in Mitchell and earlier in Harlow v. Fitzgerald, 457 U.S. 800 (1982), immunity from liability. Neither Mitchell nor Harlow support interlocutory appellate jurisdiction given the procedural history of the instant case. Quite to the contrary, both counsel against it.