Articles Posted in US Court of Appeals for the Sixth Circuit

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The FBI accessed Playpen and verified that the website contained child pornography, then executed a search warrant at a North Carolina server hosting company that owned the IP address. The FBI seized a server that contained a copy of Playpen. Because of a server misconfiguration, the government was able to gain administrative control of the website. For two weeks, the FBI operated Playpen from a Virginia government-controlled computer server but was unable to identify the individuals who logged on. The FBI turned to counter-technology called NIT, which downloads on the user’s computer and sends back information. An Eastern District of Virginia magistrate signed a warrant authorizing the government to deploy NIT on “any user or administrator who logs into [Playpen] by entering a username and password.” NIT identified the IP address associated with a Playpen visitor’s username. An administrative subpoena was sent to the Internet Service Provider that operated that address. The response led to Moorehead's Tennessee residence. The government obtained a residential warrant and seized Moorehead’s computer equipment. Moorehead admitted that he used the Internet to view child pornography. He was indicted under 18 U.S.C. 2252(a)(4)(B) and 2252(a)(2). He unsuccessfully moved to suppress the evidence, arguing that the NIT Warrant violated 28 U.S.C. 636(a) because it was executed outside of the magistrate’s territorial jurisdiction. The Sixth Circuit affirmed, applying the good-faith exception to the exclusionary rule. View "United States v. Moorehead" on Justia Law

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Burris was convicted of conspiracy to possess with the intent to distribute heroin, possession with intent to distribute heroin, and two counts of using a communication facility to facilitate a drug trafficking offense. Burris had a 2005 Ohio conviction for complicity in trafficking in drugs and a 2007 Ohio conviction for felonious assault. The district court relied on those felonies to sentence Burris as a career offender under the Guidelines, sections 4B1.1, 4B1.2(a)(1). Burris objected to the classification, arguing that it overstated his actual criminal history, but did not argue that his Ohio felonies were not violent-felony predicates under the Guidelines. The district court granted Burris a variance from the applicable 210-262-month Guidelines range, sentencing him to 90 months’ imprisonment. In 2012, a Sixth Circuit panel had held that both Ohio felonious assault and Ohio aggravated assault qualified as violent-felony predicates under the Armed Career Criminal Act (ACCA) elements clause. On en banc review of the Burris case, the Sixth Circuit held that both are too broad to always (categorically) qualify as violent-felony predicates; each criminalizes more conduct than described in the ACCA and Guidelines elements clauses. Both statutes are divisible; each sets out two separate crimes, one qualifies as a violent-felony predicate and the other does not. Burris is not eligible for relief because he was sentenced under the provision that is a violent felony. View "United States v. Burris" on Justia Law

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Berry, charged with Conveying False Information Regarding Explosives, 18 U.S.C. 1038(a), allegedly placed a briefcase made to look like a bomb but containing only papers and no explosives, outside a bank. Berry suffers from mental illness. He apparently believes that he is the trustee of a trust which owns all of Bank of America’s assets and that it is his duty to execute the trust and repossess those assets. According to the government, the briefcase incident was not Berry’s first encounter with the bank. Berry is not competent to stand trial absent medication but he does not wish to be medicated. The district court ordered him to be treated with antipsychotic drugs. The Sixth Circuit vacated that order. Even assuming the five-year statutory maximum sentence for the charged crime makes it a serious offense that could qualify for Berry to be forcibly medicated, there are significant mitigating factors that weigh against finding that the government has a sufficient interest for such mandated treatment. Berry has already been confined for the length of time he likely would face as imprisonment if convicted, and his pretrial confinement would likely be credited against his jail term. View "United States v. Berry" on Justia Law

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Confidential informants learned that Ardd wanted to buy cocaine and connected him with Memphis officer Tellez, posing as an out-of-state cocaine dealer. Before a scheduled meeting, Tellez obtained a warrant to search Ardd’s home for drug records and drug proceeds “[u]pon Ardd being arrested for attempting to possess th[e] cocaine.” Tellez’s affidavit described his experience in narcotics investigations and stated that a reliable informant told him about Ardd’s drug activities; Ardd contacted Tellez several times during the year about buying distribution quantities of cocaine; Ardd was ready to buy. The affidavit described Ardd’s residence and noted the police had surveilled it. Officers observed the controlled buy and arrested Ardd after he showed Tellez money, climbed into Tellez’s car, and took the bag of cocaine. Police searched Ardd and seized the cocaine, $9,800, and a loaded pistol. In his home, they seized 34 baggies of drugs, digital scales, and a loaded pistol with an obliterated serial number. Police gave Ardd his Miranda warnings and supplied a written copy. Ardd admitted that he came to the parking lot with a loaded gun to obtain cocaine, and that he had been making up to a thousand dollars a week in cocaine sales for years and that he had more drugs and another gun at home. The Sixth Circuit affirmed the denial of a motion to suppress, Ardd’s convictions, and his 270-month sentence. View "United States v. Ardd" on Justia Law

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From 2007-2011, a group led by District employee Palazzo defrauded the Cuyahoga Heights School District. From 2009-2011, Defendant was part of this group. The scheme involved Palazzo submitting fake invoices to the District, purporting to be for IT-related goods and services. The vendors were actually shell corporations that never supplied goods or services of any kind to the District. The shell corporations were owned by Palazzo’s brother, Boyles, and Defendant. Five shell corporations defrauded the District of approximately $3.3 million. Defendant was aware, no later than 2009, that the scheme was a fraud. When the scheme was uncovered, Defendant sold his property, moved to Europe, and cut off communications with people in the U.S. He claims he was afraid of Palazzo, who had threatened his family. He was extradited and pled guilty under 18 U.S.C. 1341, 1349 (mail fraud), 18 U.S.C. 1956(h)(money laundering). The Sixth Circuit affirmed his a 70-month sentence, rejecting Defendant’s claims that he should have only received a 14-level offense level increase for the amount of loss that resulted from his offenses—$916,948.77, that he should have received a two-level decrease for playing only a minor role in the offenses, and that he should not have received a two-level increase for obstruction of justice. View "United States v. Donadeo" on Justia Law

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In 2003, Jasso obtained lawful U.S. permanent resident status. More than a decade later, he pled guilty to first-degree home invasion in Michigan. DHS began removal proceedings, arguing that Jasso’s home-invasion conviction was a “crime of violence” under 8 U.S.C. 1101(a)(43)(F), 1227(a)(2)(A)(iii), which then defined a “crime of violence” with both an elements clause and a residual clause, 18 U.S.C. 16. The IJ found that Jasso’s home-invasion conviction was a crime of violence under the residual clause. Before the Board of Immigration Appeals acted, the Sixth Circuit found the residual clause unconstitutionally vague. The BIA remanded for a new removability determination. The IJ terminated the proceeding, warning Jasso that DHS could “recharge under a different theory.” Two days later DHS initiated a second removal proceeding, arguing that Jasso’s home-invasion conviction was a “burglary offense” rather than a “crime of violence,” 8 U.S.C. 1101(a)(43)(G), 1227(a)(2)(A)(iii). The IJ agreed and rejected Jasso’s argument that res judicata barred the second proceeding. The BIA affirmed, concluding that res judicata does not apply in removal proceedings involving aggravated felons. The Sixth Circuit vacated and remanded for determination of whether claim preclusion applies, which depends on whether the first removal proceeding was dismissed with or without prejudice—an issue never addressed by the Board. View "Jasso-Arangure v. Whitaker" on Justia Law

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Petitioner, a citizen of the United Kingdom and a lawful U.S. permanent resident, was convicted of two counts of rape in 2011 under Ohio law. He was charged as removable for being convicted of an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii), which lists rape as an aggravated felony, but it does not define the term. An IJ found held that Petitioner was removable without eligibility for relief. Petitioner argued in his appeal to the BIA that his Ohio conviction is not an aggravated felony because Ohio’s definition of rape includes digital penetration, whereas the federal law does not. The BIA disagreed. The Sixth Circuit reversed, noting that the Fifth Circuit and the BIA previously considered this question. The BIA reversed course in Petitioner’s case. A conviction for rape in Ohio can be committed by digital penetration, whereas the aggravated felony of rape under the Immigration and Nationality Act cannot; the Ohio conviction does not categorically fit within the federal definition, and Petitioner’s conviction is not an aggravated felony. View "Keeley v. Whitaker" on Justia Law

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Logan was a drug courier in a cross-country drug ring from 2004-2007. In total, Logan transported over 150 kilograms of cocaine from California to Michigan. Logan received conflicting advice while considering whether to accept a plea offer with a 10-year sentencing cap. His counsel of record told him it was a very good deal that avoided the high risks of proceeding to trial. Logan signed the plea agreement. His second attorney (retained by Logan’s family but not counsel of record) subsequently persuaded Logan to withdraw from the plea agreement. Ultimately, Logan accepted another plea agreement that did not include a sentencing cap and received a much longer sentence than contemplated by the first agreement. Logan claimed ineffective assistance of counsel. The district court and Sixth Circuit rejected his argument. Counsel of record advised Logan about the risks of going to trial; Logan testified that he signed the plea agreement because he was guilty and was worried about facing a sentence of 30 years or more. He was aware of the risks of trial. Whether to accept the plea offer was ultimately Logan’s decision and that the fear of a higher sentence after trial was a valid concern. Logan received all the information needed to make an informed decision. View "Logan v. United States" on Justia Law

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Hill turned on the sink in a detox cell and let the water overflow. Jailor Hickman punched Hill, knocking him to the floor, severely injuring his jaw. Hickman and Asher kicked Hill while he laid curled on the floor; mocked Hill for soiling his pants; and stated, “We’re the law, dawg. We can do what we want.” They threw Hill into a restraint chair. Asher watched as Hickman pounded Hill’s face. Bruises on Hill’s wrists memorialized his attempts to free himself. The jailors left Hill in the restraints, sitting in his own feces. Hill woke up on the floor and asked to see a doctor. Hickman testified that he and Asher took Hill to another room, where a “doctor” looked at him and that the “doctor” was Asher in disguise. Hill filed a complaint. Hickman wrote a report stating that Hill was the aggressor. Asher signed Hickman’s report and later wrote a corroborating report, claiming that Hill slipped on the water and hit the wall. Asher was charged with depriving Hill of his civil rights, 18 U.S.C. 242, and falsifying a record to impede a federal investigation, 18 U.S.C. 1519.2. The court allowed the prosecution to introduce testimony that Asher had battered a different prisoner and concealed that crime. over Asher's objection and offer that if the jury believed that he committed the charged assault, he would admit intent. The Sixth Circuit vacated. The charged conduct provided a sufficient basis for the jury to find intent; the prior-act evidence had only incremental probative value. Evidence of Asher’s guilt was not overwhelming. Absent the prior-act evidence, Asher’s arguments that Hickman lied might have persuaded the jury. Hill testified that he could not remember much about Asher’s role. View "United States v. Asher" on Justia Law

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Doe pleaded guilty to unlawful sexual conduct with a minor. Megan’s Law, Ohio Code section 2950, requires determination of whether a person convicted of a sexually oriented offense is a “sexual predator,” “likely to engage in the future" in "sexually oriented offenses.” Doe’s classification as a sexual predator was affirmed on appeal. Doe is required, for the rest of her life, to register with the sheriff and provide detailed personal information; she must provide written notice of any changes, and verify, in person, the current address of her residence, school, and place of employment every 90 days. Failure to comply is a felony. Doe’s registration information is publicly disseminated through an internet sex-offender database. Doe may not reside within 1000 feet of any school and is barred from living in federally subsidized housing. The law provides that “[i]n no case shall the lifetime duty to comply . . . terminated.” Doe sought a declaration that the statute is unconstitutional in preventing her from obtaining a hearing to demonstrate that she is no longer “likely to reoffend.” The Sixth Circuit upheld the statute, first holding that named state officials did not enjoy Eleventh Amendment immunity and that Doe had standing. Doe’s classification is based on her likelihood of reoffending as of the time of the classification hearing; the restrictions stem not from her current dangerousness, but from that assessment. Due process does not require the opportunity to prove a fact that is not material to the statutory scheme. View "Doe v. DeWine" on Justia Law