6th Cir. Published Decisions for Week of Nov. 5, 2007 (1 Ky Decision)

Opinion	Short Title/District
07a0441p.06	Daubenmire v. City of Columbus     Southern District of Ohio at Columbus SILER, Circuit Judge. David Daubenmire, Thomas Meyer, and Charles Spingola (collectively, “Plaintiffs”) appeal from the district court’s judgment dismissing their 42 U.S.C. § 1983 claims. Meyer and Spingola allege that the City of Columbus (“City”), Sergeant Michael Piccininni, and Officer Todd Bush1 (collectively, “Defendants”) violated their First, Fourth, and Fourteenth Amendment rights in connection with their arrests and prosecution for open burning without a permit on June 23, 2001. Plaintiffs seek injunctive relief and a declaratory judgment against the City, stating that they desire to engage in ceremonial burning in the future, that their rights under the First and Fourteenth Amendments have been violated, and that the City’s policies and practices regarding open burning permits are unconstitutional. They contend that the district court made the following errors: (1) holding that plaintiffs lacked standing to pursue their claims for prospective injunctive and declaratory relief; (2) finding that Meyer and Spingola are collaterally estopped from asserting their claims in connection with their 2001 arrests and prosecutions; and (3) disregarding the liberal pleading standard under Federal Rule of Civil Procedure 12(b)(6) when it concluded that Meyer and Spingola failed to allege a prima facie case of selective enforcement. We AFFIRM in part, REVERSE in part, and REMAND to the district court.
07a0442p.06	Dubay v. Wells     Eastern District of Michigan at Bay City CLAY, Circuit Judge. Plaintiff Matthew Dubay (“Dubay”) appeals from the district court’s dismissal of his case pursuant to Federal Rule of Civil Procedure 12(b)(6), and its award of attorney fees to Defendants Lauren Wells (“Wells”), Saginaw County Prosecuting Attorney’s Office (the “County”), and Intervenor-Defendant Michael A. Cox, Attorney General of the State of Michigan (“Attorney General”). After Wells told Dubay she was infertile and using birth control, she became pregnant with Dubay’s child, had the baby, and sued for child support. A Michigan court awarded child support and Dubay brought this action challenging the constitutionality of the Michigan Paternity Act, Mich. Comp. Laws § 722.711 et seq. (2002), and related statutes under the Equal Protection Clause of the Fourteenth Amendment. For the reasons that follow, we AFFIRM the judgment of the district court.
07a0443p.06	USA v. Garner     Northern District of Ohio at Cleveland MERRITT, Circuit Judge. David Garner appeals his conviction after a jury trial for one count of carjacking pursuant to 18 U.S.C. § 2119(1) and one count of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Specifically, Garner contends that the district court erred in denying his motion for a new trial based on a violation of Brady v. Maryland arising from the government’s failure timely to turn over cell phone records prior to trial. Alternatively, Garner contends that the district court erred in denying his motion for a continuance to allow him time to investigate the information contained in the cell phone records. This appeal raises a possible issue of mistaken identity. Defendant was convicted of carjacking based primarily on the testimony of (1) his codefendant, Bryce Smith, who, because he pled guilty and did not go to trial, had motivation to lie about both his role in the carjacking and the identity of his co-hijacker to minimize his role and possibly to exonerate his friend, Deandrew Foster, who may have been Smith’s actual accomplice in the carjacking and (2) Shalonda Melton, the former girlfriend of codefendant Bryce Smith. Ms. Melton maintained a close relationship with Smith and had the motivation to lie both to help minimize the role of her ex-boyfriend, Bryce Smith, in the carjacking and to help their friend Deandrew Foster by implicating David Garner, whom she did not know, as the co-hijacker instead of Foster. A cell phone belonging to the victim was in the truck at the time it was stolen and was used to make and receive calls by the hijacker or hijackers. Garner’s counsel did not have timely access to the cell phone records that may well have impeached the testimony and credibility of Shalonda Melton and cast doubt on her identification of Garner as the co-hijacker. These records were in the government’s possession for five days before they were turned over to Garner’s counsel the morning the trial began. Recognizing the importance of the cell phone records to identify who was in the truck and using the stolen cell phone, Garner’s counsel requested a continuance of trial to investigate further the outgoing and incoming calls on the stolen cell phone. The district court denied the motion for a continuance without giving adequate reasons for why a short continuance to allow Garner’s counsel to investigate the cell phone records was unreasonable. The cell phone records provided strong evidence to support defendant’s theory that he had been framed by Melton, Smith and Foster. For the following reasons, we reverse the judgment of the district court and remand with instructions to conduct a new trial.
07a0444p.06	USA v. Stuart     Eastern District of Michigan at Detroit SUTTON, Circuit Judge. A jury convicted Daniel Lee Stuart of violating several drugtrafficking and firearm-possession laws. On appeal, Stuart argues that his rights to effective assistance of counsel, a trial by jury, a Franks hearing and due process were violated. Because we decline to review Stuart’s ineffective assistance claim on direct appeal and because his other arguments are unconvincing, we affirm.
07b0011p.06	In re: Greg Anderson v.     U.S. Bankruptcy Court - Marquette JOSEPH M. SCOTT, JR., Bankruptcy Appellate Panel Judge. Appellant Colleen M. Olson (the “Trustee) appeals the bankruptcy court’s order disapproving the settlement agreement entered into by the Trustee and Defendants David Allen Anderson and David A. Anderson (the “Defendants”). For the reasons that follow, the panel concludes that although the bankruptcy court abused its discretion by applying an erroneous legal standard, the court’s decision should be affirmed.
07a0445p.06	Thompson v. Greenwood Jordan v. Greenwood     Western District of Tennessee at Memphis BOGGS, Chief Judge. This consolidated appeal arises from a Title 11 bankruptcy action brought on behalf of two sets of debtors, all of whom are residents of the Northern District of Mississippi, who filed their actions in the Western District of Tennessee (Memphis Division) for reasons of convenience. The United States Trustee’s Office for the Northern District of Mississippi moved to transfer the cases. This case presents a single issue on appeal: whether a bankruptcy court may retain a case filed in an improper venue under 28 U.S.C. § 1408 over a timely objection by an interested party, if it determines that retention is in the interests of justice or for the convenience of the parties. The district court answered that question in the negative and ordered the cases transferred to the Northern District of Mississippi. We affirm.
07a0446p.06	USA v. Fore     Eastern District of Kentucky at Lexington GRIFFIN, Circuit Judge. Defendant James T. Fore, II, appeals his conviction and sentence on charges of interstate transportation of child pornography and possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(1) and (a)(4)(B), respectively. The central issue on appeal, a matter of first impression in this circuit, is whether the district court properly denied defendant’s request for a two-level reduction in his base offense level pursuant to U.S.S.G. § 2G2.2(b)(1) (2005), which allows such a reduction if “the defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor; and . . . the defendant did not intend to traffic in, or distribute, such material.” Defendant argued that the reduction was justified because his conduct was limited to possession with no intent to distribute pornography. The district court, however, denied the reduction on the ground that defendant’s criminal conduct was not limited to the receipt or solicitation of pornographic materials, but also involved the transportation of the pornography in interstate commerce. Defendant also challenges his conviction in a separately filed pro se supplemental brief. For the reasons set forth below, we affirm defendant’s conviction and sentence.
07a0447p.06	USA v. Conrad     Western District of Tennessee at Jackson BOYCE F. MARTIN, JR., Circuit Judge. Betty Sue Conrad appeals her conviction on one count of conspiracy to possess with intent to distribute in excess of 50 grams of methamphetamine and two counts of possession with intent to distribute methamphetamine. She argues that the district court improperly allowed hearsay evidence under the co-conspirator exception and that there was insufficient evidence to sustain her conviction. For the reasons that follow, we REMAND for further proceedings as instructed below.
07a0448p.06	Gerson v. CIR     Commissioner of Internal Revenue COOK, Circuit Judge. The Estate of Eleanor R. Gerson appeals the United States Tax Court’s decision to assess a tax of $1,144,465 on the proceeds of an irrevocable trust under the generation-skipping transfer (“GST”) tax. The Estate asserts that a grandfather clause protects these assets from taxation, despite a treasury regulation that would lead to a contrary result. Because the Commissioner’s regulation reasonably construes an ambiguous statutory provision, we affirm the Tax Court’s decision.

Comments

[D T Williams]

Dear Sir,
I have no comment to make on the above cases but I do comment on true films shown on British T V of how the justice system in the different states in America seems to have failed. Preliminary investigations as recorded in films of how the police handle their investigations is disturbing and but for the individual directors of the filming industry to show the public the weaknesses in American Justice,innocent individuals,have very little defence against a system which seems to be above the law,if the system in practice,allows an innocent person to be sentenced after trial or hearing,founded on evidence,not proven to be without challenge,how can a jury apply a verdict on non factual evidence?