Tuesday, November 17, 2009
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The e-Journal provides summaries of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published), and selected U.S. District Courts.

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Today's e-Journal includes a summary of one Michigan Supreme Court order under Criminal Law. Cases appear under the following practice areas:


Contracts

 

Issues: Interpretation of a contractual limitation on damages; Contractual periods of limitation; Rory v. Continental Ins. Co.; Business management agreement (BMA)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bronco Oil Co. v. Citizens Bank

e-Journal Number: 44237

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

The trial court correctly granted the defendants' summary disposition motion in this breach of contract case because the language limiting damages in the BMA between plaintiff and the defendant-bank set forth a timing limitation and "where the limitation on damages causes the contract claim to fail in its entirety because it was brought too late," the distinction between a damages limitation and a limitation on bringing a cause of action "is one without a difference." Under the BMA, plaintiff sold its accounts receivable to the bank, which assumed responsibility for managing the collections and in turn retained defendant-PBI. Contending the defendants were mismanaging the accounts receivable, plaintiff severed its business relationship with them in August 2002, and filed this case in March 2008. Defendants moved for summary disposition on the basis any contract claim was barred by express provisions in the BMA limiting plaintiff's damages claims. The trial court concluded the parties intended to limit the bank's exposure to any damages other than the amount plaintiff paid as service fees in the preceding 12 months, which the trial court interpreted as referring to the 12 months preceding the filing of the case. The trial court reasoned because plaintiff ended its relationship with the defendants in 2002 but did not sue until 2008, plaintiff could not prove any damages outside the limitations set by the BMA's terms. The court concluded the trial court's "implied characterization of the provision as a contractual period of limitations was a simple recognition" the effect of the damages limitation "was the same as would have been a similar limitation on bringing suit." The court noted the sentence in the BMA about waiver of a jury trial immediately preceded the sentence describing the 12-month limitation on damages - the two together constituted all the language in § 9 set forth in capitals, which underscored their correlation. The passage began, "IF ANY FORM OF LITIGATION IS INSTITUTED BY THE BUSINESS AGAINST THE BANK FOR VIOLATION OF THIS AGREEMENT," and concluded, "BUSINESS FURTHER AGREES THAT ITS DAMAGES WILL BE LIMITED, IN ANY CASE, TO THE AMOUNT OF SERVICE CHARGE PAID . . . DURING THE PRECEDING TWELVE (12) MONTH PERIOD." The court held the passage, taken as a whole, beginning with a reference to "litigation," then "further" limiting damages in any "case," "clearly signaled its applicability in connection with litigation." Affirmed.

 


Criminal Law

 

Issues: Whether the trial court properly denied the defendant's motion for a new trial where the verdicts were allegedly against the great weight of the evidence; People v. Lemmon; Defense of insanity; MCL 768.21a(1); Guilty but mentally ill (MCL 768.36(1)); People v. Carpenter; People v. Shahideh; People v. Cuthchall; Whether the prosecutor "harbored a personal grudge" against defendant; People v. Pfaffle; Province of the jury; People v. Krugman; The prosecution's burden; People v. Murphy

Court: Michigan Supreme Court

Case Name: People v. Weddell

e-Journal Number: 44299

Judge(s): Weaver, Young, Jr., Markman, and Hathaway; Concurrence - Corrigan; Dissent - Kelly; Voting to deny leave to appeal - Cavanagh

 

In an order, the court reversed the Court of Appeals judgment (see e-Journal # 40104 in the 8/6/08 edition) and reinstated the trial court's judgment. The court noted the defendant presented evidence supporting her theory she was not guilty by reason of insanity. The prosecution rebutted this evidence and impeached defendant's witnesses. "'It is the province of the jury to determine questions of fact and assess the credibility of witnesses.'" The court held in light of the evidence, the trial court did not abuse its discretion in denying defendant's motion for a new trial on the basis the verdicts were against the great weight of the evidence after a jury convicted defendant of being guilty but mentally ill of fleeing and eluding a police officer resulting in a collision and malicious or willful destruction of police property.

 

The concurring justice wrote "to underscore why the Court of Appeals erred" in reversing the jury's verdict and in holding the trial court abused its discretion in denying defendant's motion for a new trial. "The jury's verdict was not against the great weight of the evidence. Instead, this thoughtful jury's verdict was well-supported on the only issue before it - defendant's state of mind during the crime." The justice concluded the prosecution successfully impeached the one forensic psychologist who supported defendant's insanity claim, and videotape evidence and lay witness testimony supported "the jury's measured and sound conclusion." The justice concluded the Court of Appeals "wrongly emphasized the number of experts testifying on defendant's behalf instead of the nature and quality of their testimony."

 

The dissenting justice concluded the evidence was overwhelming the defendant was legally insane at the time she committed the offenses and the Court of Appeals correctly held the jury's verdict was against the great weight of the evidence. The justice opined the Court of Appeals decision was compelled by Murphy. "Defendant was in a delusional, psychotic manic state and could not understand the wrongfulness of her conduct when she failed to stop her vehicle for police officers. All the mental health experts testifying at trial, even the state's own forensic psychiatrist, opined" she was legally insane when she committed the offenses. "Their testimony was uncontradicted and was supported both by the lay testimony and circumstantial evidence." Thus, the evidence defendant was legally insane preponderated so heavily against the verdict "it would be a serious miscarriage of justice to permit it to stand."

 


Issues: Habeas corpus; Sixth Amendment right to a public trial; Waller v. Georgia; Exclusion of the public from the courtroom during portions of the petitioner's jury trial; Waiver; Freytag v. Commissioner; Procedural default; Cause and prejudice for the default; Coleman v. Thompson; Failure to make a contemporaneous objection to the closure; United States v. Frady; Ineffective assistance of counsel for failing to object to the closure; Strickland v. Washington; Owens v. United States (1st Cir.)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Johnson v. Sherry

e-Journal Number: 44302

Judge(s): Clay and Cole; Dissent - Kethledge

 

Concluding under the circumstances defense counsel's acquiescence to the courtroom closure appeared unjustified, the court held an evidentiary hearing was warranted to determine if defense counsel's failure to object constituted deficient performance. Thus, the court vacated the district court's judgment denying the petitioner habeas relief and remanded for an evidentiary hearing to determine whether the closure was justifiable, if defense counsel was constitutionally ineffective for failing to object, and whether the "cause and prejudice" components of the public trial claim could be satisfied. Petitioner was convicted of second-degree murder, assault with intent to murder, and felony-firearm. The prosecutor moved to close the courtroom to spectators during the testimony of three prosecution witnesses who were afraid to testify publicly, explaining two other prosecution witnesses were killed under suspicious circumstances before the preliminary exam. Defense counsel agreed to exclude spectators for the three witnesses, but asked the trial court not to do so in the jury's presence. The trial court instructed petitioner's relatives not to arrive before 11:00 AM on the day the three witnesses testified and to stay outside the courtroom until allowed to enter. Petitioner exhausted his right to a public trial and ineffective assistance of counsel claims in the state courts before filing his federal habeas petition. The district court denied his petition, concluding his right to a public trial claim was procedurally defaulted, it would fail on the merits, and also rejected his ineffective assistance of counsel claim. The court, however, agreed with petitioner defense counsel's failure to object to the closure "may have fallen below 'an objective standard of reasonableness' as required by Strickland." In light of the absence of findings on the record by the trial court, it was difficult to discern if it was necessary for the courtroom to be closed to all spectators for the testimony, but the court was "far from convinced that this was the 'rare' circumstance where closure was justified," or the closure was "'no broader than necessary' to protect the interest advanced by the state under Waller." The court noted the prosecution did not offer any proof petitioner or any member of his family was involved in the two witnesses' deaths. Given "the compelling interest in a public trial and the rigorous test set forth in Waller," the court was "far from confident" the closure would have been implemented over petitioner's objections, and if the closure was unjustified or broader than necessary, "prejudice would be presumed."

 


Issues: Whether the trial court properly imposed consecutive sentences; MCL 333.7401(13)(Amd. by 2002 PA 665); MCL 222.7401(2)(a)(Eff. 12/26/02); Applicability of Blakely v. Washington to the trial court's departure at sentencing; People v. Uphaus; Whether the judgment of sentence in LC No. 2000-175041-FH required correction; LC No. 1999-168815-FH required correction; People v. Avant; People v. Chambers (Dckt. No. 274249)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Chambers

e-Journal Number: 44268

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

Concluding the trial court did not err in imposing consecutive sentences and the trial court's departure from an intermediate sanction did not implicate Blakely, the court affirmed and remanded for the ministerial task of correcting the judgments of sentence. The defendant appealed his sentences imposed after he pleaded guilty to violation of probation. In LC No. 1999-168815-FH, the trial court sentenced him to concurrent prison terms of 1 to 20 years each for delivery of less than 50 grams of cocaine and delivery of marijuana. The sentences were to be served consecutively to sentences he received in LC No. 2000-175041-FH in which he was sentenced to concurrent prison terms of 1 to 20 years each for delivery of less than 50 grams of cocaine and delivery of less than 50 grams of marijuana. In its prior opinion, the court remanded for a hearing on the probation violation where the record did not show he pleaded guilty before the trial court sentenced him for his probation violation. On remand, he pleaded guilty of violating his probation by failing to obtain his GED. The trial court then said it was sentencing him to "one to 20 years in the MDOC on both cases, they were consecutive." He moved for resentencing, but the trial court denied the motion. He argued here the trial court err in imposing consecutive sentences because he was resentenced after the amendment of § 7401(3), which eliminated mandatory consecutive sentencing. However, the amended statutory and sentencing scheme in § 7401 applies only to offenses committed on or after March 1, 2003. Thus, it did not apply to defendant's conviction and the consecutive nature of the sentences did not entitle him to relief. The prosecutor raised several sentencing issues, which the court agreed should be corrected. Thus, the court remanded.

 


Issues: Sufficiency of the evidence to support the defendant's conviction for larceny in a building; People v. Hawkins; People v. Hardiman; People v. Wolfe; People v. Harrison; People v. Carines; People v. Kanaan

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Dettloff

e-Journal Number: 44273

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

There was sufficient evidence the defendant took K & E Electric's property with felonious intent and took the property without the consent, and against the will, of the owner to support his conviction of larceny in a building. The prosecutor presented testimony the defendant entered the building after hours, the surveillance camera was rewound contemporaneously with his presence in the building, and neither the computer nor the peg board provided any evidence of defendant's use of the company's "fill and hold" procedure. While defendant offered an innocent explanation of events leading to his arrest, conflicts in testimony are resolved in favor of the prosecution in deciding an issue of sufficiency. Both an owner of K & E and defendant's supervisor testified they had not given defendant permission to take the property and he did not follow the K & E "fill and hold" procedure. While defendant testified he properly followed procedure to take the property two weeks before his arrest, the court would not interfere with the jury's credibility determinations. The evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt the defendant took the property with felonious intent and without the consent of the owner. Affirmed.

 


Issues: Sufficiency of the evidence to convict the defendant of assaulting a jail employee; MCL 750.197c; People v. Neal; "Simple" assault; People v. Terry; "Battery"; People v. Reeves; People v. Boyd; People v. Wolfe; People v. Nowack; "Other acts" evidence; MRE 404(b); People v. Crawford; People v. VanderVliet; People v. Sabin (After Remand); Jury instructions; Waiver; People v. Lueth; People v. Carter; People v. Canales; Prosecutorial misconduct; People v. Callon; People v. Schultz; People v. Unger; People v. McGhee; People v. Abraham; People v. Fields; People v. Knapp; Ineffective assistance of counsel; People v. LeBlanc; People v. Carbin; People v. Toma; Sentencing; Scoring of OVs 1, 9, and 19; People v. McLaughlin; People v. Odom; People v. Endres; People v. Kimble

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Huddleston

e-Journal Number: 44291

Judge(s): Per Curiam - Servitto, Bandstra, and Markey

 

The court held there was sufficient evidence to allow a rational trier of fact to find beyond a reasonable doubt the defendant acted with violence under MCL 750.197c when he threw feces and urine at a jail officer, he committed an assault against the officer, he acted with intent because he was aware the deputies were prepared to enter his cell, and the evidence showed he knew the assault victims were jail employees where all of the officers were in full uniform at the time of the incident. The first element in the statute was not at issue. The second element involved two separate inquiries - first, whether defendant acted with "violence" within the meaning of the statute, and second, whether he committed an assault against an employee. Three deputies testified the defendant committed an assault against the first officer where he hit him with fecal matter and urine, which was an offensive touching. Additional evidence showed defendant acted with intent because he was aware the deputies were prepared to enter his cell. The first officer to enter defendant's cell, instructed him to turn and face the back wall of the cell and he refused. Other testimony established the officers warned him they were going to enter his cell and instructed him to stop throwing feces. After the deputies entered the cell, however, defendant took time to scoop fecal matter and urine out of the sink and throw it at the exact location where the first officer was standing, evincing the fact he acted with intent. The court also held the other issues defendant raised on appeal had no merit. Affirmed.

 


Issues: Whether the trial court properly entered orders requiring the defendant to remit funds where he was allegedly indigent; People v. Dunbar; People v. Jackson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Rhea

e-Journal Number: 44261

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

Since the trial court obtained updated financial information from defendant and held he was not indigent and had the ability to pay, he did not show his financial circumstances were so unique as to overcome the presumption of nonindigency, the court affirmed the trial court's ruling confirming the prior restitution orders to remit prisoner funds. In LC No. 2000-003516-FH, a jury convicted defendant of first-degree home invasion and felonious assault. In LC No. 2001-001413-FH, he pleaded guilty to second-degree home invasion. In sentencing him, the trial court over defendant's objections of indigency, ordered reimbursement of expenses for court-appointed counsel. Later, the trial court entered orders to remit prisoner funds in both cases finding he owed $5,867.80, and authorizing the DOC to make withdrawals from his prisoner account. On appeal, the court vacated the part of the judgment of sentence assessing attorney fees in both cases where the trial court did not first assess his ability to pay and remanded to the trial court for the determination of his ability to pay. After receiving a submission from defendant the trial court held he did have the ability to pay and confirmed the prior orders. He appealed again contending he was indigent. The court affirmed the trial court's ruling, remanded for correction of the amended judgment of sentence in LC No. 2000-003516-FH, which erroneously ordered restitution in the amount of $260, where restitution was ordered in LC No. 2001-001413-FH only.

 


Issues: Sufficiency of the evidence to support the defendant's conviction of first-degree child abuse; MCL 750.136b(1)(f) and (2); People v. Nowack; People v. McGhee; People v. Hardiman; Great weight of the evidence; People v. Unger; Guerrero v. Smith; Expert qualifications; MRE 702; People v. Yost; People v. Whitfield; Demonstrative evidence; Sentencing; Scoring of OVs 2, 3, 7, and 10; People v. McLaughlin; People v. Cannon; People v. Lange; People v. Monaco

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Samphere

e-Journal Number: 44257

Judge(s): Per Curiam - Whitbeck, Davis, and Gleicher

 

There was sufficient evidence to support the defendant's conviction of first-degree child abuse. He did not challenge the fact the then four-year old victim endured serious physical harm, specifically second- and third-degree burns over approximately 90 percent of his body. Defendant contended the trial evidence comported with his theory he did not knowingly or intentionally cause the victim's injuries, which occurred accidentally when he left very hot bath water running unattended and the victim climbed into the tub. According to defendant, he was down a hallway in his residence when he heard a shriek and a thump prompting him to investigate the source of the noise, and on reaching the bathroom observed the victim lying submerged and face-up in the tub. Dr. G, director of a regional Children's Health Center's pediatric intensive care unit characterized as "considerably less likely" defendant's account the victim climbed into the bath tub himself and eventually was rescued by defendant. Dr. W, director of a regional Burn Center viewed as a "very hard indicator" of child abuse "the story of the circumstance doesn't fit the appearance of the injury." He concluded, "I think it was not accidental in that the child didn't accidentally get himself in the position to be burned." O, who shared a jail cell with defendant for about a week and a half, recounted defendant had acknowledged putting the victim in the hot bath water. The victim similarly testified defendant had "put me in the very hot tub." The evidence also revealed defendant told several witnesses he had been drawing a bath for himself and had turned on only the hot water, which was his practice. According to several witnesses, defendant liked his bath water very hot. His ex-wife recalled the extremely hot temperature of defendant's baths had been an issue in their marital home because they had small children, and she instructed defendant to keep the bathroom door closed so the children did not touch the water and hurt themselves. Viewed in the light most favorable to the prosecution, the evidence and the reasonable inferences arising from the evidence, constituted an ample basis for a rational jury to find beyond a reasonable doubt defendant intentionally placed the victim into the bathtub, either intending the victim would suffer serious physical harm or with knowledge the hot water in the tub would cause the victim serious physical harm. Defendant's conviction and sentence were affirmed, but the trial court's calculation of the sentencing guidelines was reversed and remanded for correction of his guidelines score.

 


Issues: Ineffective assistance of counsel; People v. Rockey; People v. Messenger; Other acts evidence; People v. Mosko; Whether defense counsel should have moved the trial court for a mistrial; People v. Haywood; People v. Gist

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Taylor

e-Journal Number: 44265

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

The court concluded had defense counsel moved the trial court for a mistrial related to a witness's brief mention defendant was released from jail, the motion would properly have been denied, and because counsel had nothing to gain from presenting such a motion, no claim of ineffective assistance followed from the failure to do so. The prosecutor's theory of the case was the defendant visited the residence of a woman with whom he had a child in common, who elected to spend the night elsewhere and left him alone in her apartment. He then did extensive damage to the apartment and its contents. Defendant argued he was denied the effective assistance of counsel at trial where the complaining witness included in her testimony the fact he had been in jail and counsel did not ask the trial court to preclude the evidence or ask for a mistrial. The trial court interrupted the testimony of the witness after a second mention of jail and asked her to refrain from making any references to defendant being released from jail and instructed the jury to ignore the testimony as it was irrelevant to the case. The trial court also instructed counsel outside the presence of the jury and asked if they wished an additional instruction on the issue. Neither counsel requested any additional instruction. The court concluded although the testimony placing defendant in jail for reasons unrelated to the charges here, placed him in a poor light, it could not agree it was so prejudicial as to cause the jury to declare him guilty in this case out of concerns relating to a briefly mentioned, otherwise unexplained, earlier stay in jail. The trial court's timely and emphatic curative instruction should have cured any prejudice. Counsel is not required to argue futile motions. Defendant's conviction of malicious destruction of a building causing injury of at least $1,000 but less than $20,000 was affirmed.

 


Issues: Sentencing; Scoring of OV 9 (number of victims); People v. Endres; People v. Cannon; MCL 777.39; People v. Sargent; People v. Morson; People v. McGraw; People v. Compagnari; Whether the trial court properly ordered defendant to pay his court-appointed attorney fees without determining his ability to pay them; People v. Dunbar; People v. Jackson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Wright

e-Journal Number: 44297

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

The court held the trial court properly scored OV 9 at 10 points when sentencing defendant on his jury conviction of resisting and obstructing and the trial court did not err in ordering him to pay his court-ordered attorney fees where he can address his ability to pay them once enforcement of the order is undertaken. The police were called to an apartment building in response to a possible fight in progress. When two officers entered the building they saw defendant running up a staircase, with two men behind him. One of the men had a pipe in his hand. An officer drew his weapon and ordered all of the men to stop. Defendant ran past the officer and out of the building, but the other men stopped. The officer ordered the man with the pipe to drop it, which he did, and ordered them to the ground, and they complied. The other officer tried to detain defendant, pushed him against a door frame to prevent him from fleeing, and two other officers arrived to assist. All four men fell to the landing inside the door, defendant pulled away, crawled down the stairs, toward an officer and the two men previously chasing him. Defendant yelled he would kill the men. An officer let go of defendant, sprayed him with pepper spray, and he continued to struggle until another officer struck him on the leg with his baton. This distracted defendant enough for the officers to handcuff him. He had almost reached the first officer on the scene and the two men. Defendant argued the trial court erred in scoring OV 9 because one of the two resisting and obstructing charges against him was dismissed. The court disagreed where the trial court was not required to score OV 9 at 0 points because he was acquitted of the other charge. Because he was struggling with all three officers, they all arguably were placed in danger of injury through his resistance and were placed in danger at the same time. Contrary to defendant's claim, the trial court could use the evidence of danger to the other officers to score OV 9. Further, at the time he was resisting, defendant was trying to attack the men who were chasing him, and would have succeeded if the officers had not stopped him. Thus, they were also placed in danger by his actions. Affirmed.

 


This summary also appears under Cyber Law

 

Issues: Claims related to charges of conspiracy to commit computer fraud in violation of 18 USC § 371 and § 1030(a)(4); United States v. Beverly; United States v. Yang; Whether the statute of limitations expired before the indictment was filed; "The last overt act in furtherance of the conspiracy alleged in the indictment"; United States v. Grenoble; 18 USC § 3282; United States v. Fitzpatrick (1st Cir.); Whether the indictment should have been dismissed based on pre-indictment delay and resulting prejudice; United Sates v. Rogers; United States v. Graham; United States v. Greene; Applicability of Doggett v. United States; United States v. Atisha; United States v. Lovasco; United States v. DeClue; Challenge to the factual specificity of the indictment; Whether a guilty plea bars a later non-jurisdictional attack on the conviction; United States v. Martin; Fed.R.Crim.P. 11(a)(2); United States v. Pickett; Challenge to the sufficiency of the indictment; United States v. Hart; United States v. Gatewood; Fed.R.Crim.P. 7(c)(1); United States v. Douglas; The "entrapment" defense; United States v. Harris; United States v. Pennell; Mathews v. United States; Department of Defense (DOD); Undercover agent (UC); Media access control (MAC): Wireless application protocol (WAP)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Schaffer

e-Journal Number: 44286

Judge(s): Van Tatenhove, Batchelder, and Daughtrey

 

Concluding defendant-Schaffer's claims the indictment should be dismissed due to the omission of essential elements, violation of the statute of limitations, pre-indictment delay, and entrapment as a matter of law had no merit, and the district court correctly rejected these arguments, the court affirmed defendant's guilty plea admitting he conspired to commit computer fraud. Defendant and his codefendant (DA) fell victim to a government sting operation in which they conspired to obtain military secrets and laser missile technology from what they believed to be a DOD contractor. The sting began in late July 2002, when UC1 met DA at a hotel in Ohio and told him he wanted to "outsource wireless computer security services to a local" company. DA told UC1 he was the sole owner of SecureNet and had developed proprietary technology which allowed him to intercept wireless computer network traffic from a greater range. He also claimed he could "spoof" MAC addresses to obtain access to computer networks via a WAP and "break" the encryption used to protect the privacy of communications on wireless computer networks. The two met again and UC1 told DA he knew a person in Chicago who was interested in locating someone with expertise to obtain information from a DOD contractor. DA was told the target was in Texas, and the target information was "laser missile technology type stuff" and "anything you intercept out of the air . . . is probably going to be illegal . . it's gonna be a problem if we were to get caught." Eventually DA and Schaffer met with UC1 and UC2 and a deal was struck where defendants would steal the requested information and if successful, would be paid $100,000. Almost five years later on February 27, 2008, a grand jury indicted Schaffer and DA. The district court dismissed part of the indictment related to interstate transportation of stolen property, but otherwise denied Schaffer's motion to dismiss. He entered a guilty plea preserving the right to appeal the issues raised in his pretrial motions. On appeal, he challenged, inter alia, the sufficiency of the indictment. Specifically, the indictment charged him with conspiring to unlawfully access a computer used by the DOD contractor in Texas in order to fraudulently obtain military secrets and laser missile technology, the objectives of the conspiracy, the role played by each defendant, the overt actions taken in furtherance of the conspiracy, and the means used to accomplish it. Thus, the indictment contained sufficient information to invoke federal jurisdiction and contained all the necessary elements of the offense. Affirmed.

 


Cyber Law

 

This summary also appears under Criminal Law

 

Issues: Claims related to charges of conspiracy to commit computer fraud in violation of 18 USC § 371 and § 1030(a)(4); United States v. Beverly; United States v. Yang; Whether the statute of limitations expired before the indictment was filed; "The last overt act in furtherance of the conspiracy alleged in the indictment"; United States v. Grenoble; 18 USC § 3282; United States v. Fitzpatrick (1st Cir.); Whether the indictment should have been dismissed based on pre-indictment delay and resulting prejudice; United Sates v. Rogers; United States v. Graham; United States v. Greene; Applicability of Doggett v. United States; United States v. Atisha; United States v. Lovasco; United States v. DeClue; Challenge to the factual specificity of the indictment; Whether a guilty plea bars a later non-jurisdictional attack on the conviction; United States v. Martin; Fed.R.Crim.P. 11(a)(2); United States v. Pickett; Challenge to the sufficiency of the indictment; United States v. Hart; United States v. Gatewood; Fed.R.Crim.P. 7(c)(1); United States v. Douglas; The "entrapment" defense; United States v. Harris; United States v. Pennell; Mathews v. United States; Department of Defense (DOD); Undercover agent (UC); Media access control (MAC): Wireless application protocol (WAP)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Schaffer

e-Journal Number: 44286

Judge(s): Van Tatenhove, Batchelder, and Daughtrey

 

Concluding defendant-Schaffer's claims the indictment should be dismissed due to the omission of essential elements, violation of the statute of limitations, pre-indictment delay, and entrapment as a matter of law had no merit, and the district court correctly rejected these arguments, the court affirmed defendant's guilty plea admitting he conspired to commit computer fraud. Defendant and his codefendant (DA) fell victim to a government sting operation in which they conspired to obtain military secrets and laser missile technology from what they believed to be a DOD contractor. The sting began in late July 2002, when UC1 met DA at a hotel in Ohio and told him he wanted to "outsource wireless computer security services to a local" company. DA told UC1 he was the sole owner of SecureNet and had developed proprietary technology which allowed him to intercept wireless computer network traffic from a greater range. He also claimed he could "spoof" MAC addresses to obtain access to computer networks via a WAP and "break" the encryption used to protect the privacy of communications on wireless computer networks. The two met again and UC1 told DA he knew a person in Chicago who was interested in locating someone with expertise to obtain information from a DOD contractor. DA was told the target was in Texas, and the target information was "laser missile technology type stuff" and "anything you intercept out of the air . . . is probably going to be illegal . . it's gonna be a problem if we were to get caught." Eventually DA and Schaffer met with UC1 and UC2 and a deal was struck where defendants would steal the requested information and if successful, would be paid $100,000. Almost five years later on February 27, 2008, a grand jury indicted Schaffer and DA. The district court dismissed part of the indictment related to interstate transportation of stolen property, but otherwise denied Schaffer's motion to dismiss. He entered a guilty plea preserving the right to appeal the issues raised in his pretrial motions. On appeal, he challenged, inter alia, the sufficiency of the indictment. Specifically, the indictment charged him with conspiring to unlawfully access a computer used by the DOD contractor in Texas in order to fraudulently obtain military secrets and laser missile technology, the objectives of the conspiracy, the role played by each defendant, the overt actions taken in furtherance of the conspiracy, and the means used to accomplish it. Thus, the indictment contained sufficient information to invoke federal jurisdiction and contained all the necessary elements of the offense. Affirmed.

 


Insurance

 

Issues: Denial of Accidental Death and Dismemberment (AD&D) benefits under an ERISA plan; Whether the district court should have applied a de novo standard of review; Wilkins v. Baptist Healthcare Sys., Inc.; Firestone Tire & Rubber Co. v. Bruch; Deferential arbitrary-and-capricious standard; Morrison v. Marsh & McLennan Cos.; McDonald v. Western-S. Life Ins. Co.; Sanford v. Harvard Indus.; Whether the defendant's denial of the plaintiffs' claim was improper under either standard; Lennon v. Metropolitan Life Ins. Co.; Shelby County Health Care Corp. v. Majestic Star Casino, LLC; Defendant's definition of "accidental"; Morgan v. SKF USA, Inc.; Walker v. Metropolitan Life Ins. Co. (ED MI); "Ordinary meaning"; Jones v. Metropolitan Life. Ins. Co.; Nelson v. Sun Life Assurance Co. of Canada (WD MI); Harrell v. Metropolitan Life Ins. Co. (ED MI); Foreseeability of injury; Lack of a specific exclusion; Wickman v. Northwestern Nat'l Ins. Co. (1st Cir.); Self-inflicted-wound exclusion; King v. Hartford Life & Accident Ins. Co. (8th Cir.); Remand; Cook v. Liberty Life Assurance Co. (1st Cir.); Cooper v. Life Ins. Co. of N. Am.; Canseco v. Construction Laborers Pension Trust (9th Cir.)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Kovach v. Zurich Am. Ins. Co.

e-Journal Number: 44301

Judge(s): Gilman and Sargus; Dissent – McKeague

 

Concluding "the time is ripe" to adopt "a uniform standard for determining whether an injury is ‘accidental' in ERISA cases where the word is not otherwise defined in the applicable policy," the court adopted the key holding in Wickman - ask "‘whether a reasonable person, with background and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured's intentional conduct.'" Although the district court in this case appropriately reviewed the plaintiffs' suit under the arbitrary-and-capricious standard because the Plan granted discretionary authority to defendant as the plan administrator to interpret the Plan's terms and to determine its benefits, the district court erred by granting the defendant summary judgment. Plaintiff-Tom was riding his motorcycle while intoxicated, ran a stop sign, and collided with another vehicle in the intersection. He sustained severe injuries leading to the amputation of his left leg below the knee. He was insured under an AD&D insurance policy provided by his wife's employer (the Plan). He and his wife filed a claim with defendant, the administrator of the Plan, for dismemberment benefits. Defendant denied the plaintiffs' claim after determining Tom's injuries were caused by his drunk driving and not covered as an "accidental" occurrence under the Plan. The court concluded although the insightful analyses from all three of the Lennon opinions were highly informative, Lennon was distinguishable and thus, not controlling. The most obvious distinction was the disparity between Lennon's and Tom's BACs - .321 versus .148. Lennon's BAC was more than twice Tom's and more than four times the legal limit (.08) in place at the time of Tom's wreck. As the concurring opinion in Lennon noted, the Wickman standard is a high bar, and the court concluded it was not met here. Tom's injuries were not "highly likely to occur" as a result of his intoxication, in contrast to the injuries which were highly likely to occur under the facts in Lennon. Defendant's interpretation of the Plan's provisions amounted to "an additional, unwritten exclusion for all drunk-driving injuries, which is not permitted under even the most deferential standard of review." The court noted the solution for insurers like defendant was simple - "add an express exclusion in policies covering accidental injuries for driving while under the influence of alcohol, or for any other risky activity" the insurer wishes to exclude. The court held defendant's denial of coverage based on Tom's injuries being nonaccidental was unreasonable in light of the Plan's provisions, and thus arbitrary and capricious. Reversed and remanded for the entry of a judgment in favor of plaintiffs.

 


This summary also appears under Negligence & Intentional Tort

 

Issues: Automobile negligence; Whether the plaintiff established a threshold injury; Auto Club Group Ins. Co. v. Burchell; Serious impairment of body function; MCL 500.3135; Kreiner v. Fischer; Williams v. Medukas; McDanield v. Hemker; Odom v. Wayne County

Court: Michigan Court of Appeals (Unpublished)

Case Name: O'Keefe v. Auto Club Ins. Ass'n

e-Journal Number: 44267

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

The trial court erred by granting summary disposition in favor of defendant-Kirchoff in this personal injury action holding plaintiff had not established a threshold injury. Kirchoff backed her car into one driven by plaintiff. Plaintiff did not seek treatment immediately, but later contended she suffered neck and back injuries in the accident and sued to recover noneconomic damages for the injuries. Defendant conceded, at least for the purpose of the appeal, plaintiff suffered objectively manifested back and neck injuries as a result of the accident. The medical history supported this, at least to an extent there was a question of fact regarding whether her back and neck injuries were caused or exacerbated by the accident. However, the court found the trial court erred when it determined plaintiff's injuries had not affected her normal life to the extent necessary to show a threshold injury under Kreiner. The nature and extent of the initial impairment, and the type and length of treatment plaintiff required, were not extensive. Plaintiff did not seek treatment immediately, and her crash was not severe. In addition, her entire course of treatment appeared to have consisted, apart from diagnostic tests, of one physical therapy session of a treatment regimen, which ended "for personal reasons," two cervical epidural steroid injections, and treatment with pain and muscle relaxant medications. However, plaintiff's residual impairments appeared to be permanent, and reportedly have affected all aspects of her life. She argued her physician's letter stating she needed attendant care services for house and yard work constituted a physician-imposed limitation on her activities. The letter did not explicitly restrict her activity, but it was a reasonable inference if a physician prescribes attending care services for house cleaning, laundry, shopping and garden work he determined she could not do these things without assistance. Reversed.

 


Litigation

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Automobile negligence; Whether the verdict was against the great weight of the evidence; Motion for a new trial; Campbell v. Sullins; MCR 2.611(A)(1)(e); Prima facie case of negligence; Case v. Consumers Power Co.; Duty; Howe v. Detroit Free Press, Inc.; Causation; Haliw v. Sterling Heights; Cause in fact; Skinner v. Square D Co.; "Proximate cause"; McMillan v. Vliet; Whether the plaintiff was denied a fair trial due to a defense expert's surprise trial testimony; Failure to seasonably supplement answers to interrogatories with the substance of the expert's proposed trial testimony; MCR 2.302(E); MCR 2.611(A)(1)(a) and (b); Counsel misconduct as harmless error; Hilgendorf v. St. John Hosp. & Med. Ctr.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Heikkila v. North Star Steel Co.

e-Journal Number: 44229

Judge(s): Per Curiam - Murphy, Meter, and Beckering

 

While there was evidence supporting the plaintiff-PR's theory of the case, there was also evidence supporting the jury's determination defendants-JRP and Sevigny were not negligent. Because the evidence did not preponderate so heavily against the jury's verdict it would be a miscarriage of justice to permit it to stand, the verdict had to be upheld. Thus, the trial court did not abuse its discretion in denying the plaintiff's motion for a new trial. The evidence showed right before the accident, the decedent, Williams, was driving eastbound on a street and Sevigny was driving westbound, hauling a large load of slag from a nearby steel mill. As the vehicles passed one another, a large object crashed through Williams' windshield and struck her in the head. Plaintiff's theory of the case was a piece of slag became lodged in the tires of Sevigny's truck while it was at the mill and as the truck accelerated on the street, the slag became dislodged and crashed through Williams' windshield. Plaintiff alleged Sevigny was negligent for failing to timely and properly inspect his truck tires for slag lodged in or between them, and JRP was vicariously liable for his actions. The court concluded assuming Sevigny owed Williams a duty to use ordinary care under the circumstances, a reasonable jury could have concluded, based on all the evidence, he did not breach this duty. Plaintiff conceded on appeal the evidence showed Sevigny performed an inspection of the tires on his truck before he left the mill. He performed a "circle check" to insure nothing on the truck needed to be repaired and nothing was lodged between the tires. Further, even if the jury found Sevigny breached the duty owed to Williams, it reasonably could have concluded his actions did not cause her death. While it was undisputed she died due to a large object crashing through her windshield and hitting her in the head, the object was never conclusively identified as slag. There was also conflicting evidence as to whether the object striking Williams was lodged in Sevigny's truck tires. If the jury accepted the testimony of a defense expert, H, it reasonably could have found the accident was caused by something other than an object lodged in Sevigny's tires. The court also held while H changed his testimony after his deposition, it would have been impossible for the defendants to supplement their interrogatory answers where H testified he did not change his opinions about the cause of the accident until after hearing the other evidence presented at trial.

 


Negligence & Intentional Tort

This summary also appears under Litigation

 

Issues: Automobile negligence; Whether the verdict was against the great weight of the evidence; Motion for a new trial; Campbell v. Sullins; MCR 2.611(A)(1)(e); Prima facie case of negligence; Case v. Consumers Power Co.; Duty; Howe v. Detroit Free Press, Inc.; Causation; Haliw v. Sterling Heights; Cause in fact; Skinner v. Square D Co.; "Proximate cause"; McMillan v. Vliet; Whether the plaintiff was denied a fair trial due to a defense expert's surprise trial testimony; Failure to seasonably supplement answers to interrogatories with the substance of the expert's proposed trial testimony; MCR 2.302(E); MCR 2.611(A)(1)(a) and (b); Counsel misconduct as harmless error; Hilgendorf v. St. John Hosp. & Med. Ctr.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Heikkila v. North Star Steel Co.

e-Journal Number: 44229

Judge(s): Per Curiam - Murphy, Meter, and Beckering

 

While there was evidence supporting the plaintiff-PR's theory of the case, there was also evidence supporting the jury's determination defendants-JRP and Sevigny were not negligent. Because the evidence did not preponderate so heavily against the jury's verdict it would be a miscarriage of justice to permit it to stand, the verdict had to be upheld. Thus, the trial court did not abuse its discretion in denying the plaintiff's motion for a new trial. The evidence showed right before the accident, the decedent, Williams, was driving eastbound on a street and Sevigny was driving westbound, hauling a large load of slag from a nearby steel mill. As the vehicles passed one another, a large object crashed through Williams' windshield and struck her in the head. Plaintiff's theory of the case was a piece of slag became lodged in the tires of Sevigny's truck while it was at the mill and as the truck accelerated on the street, the slag became dislodged and crashed through Williams' windshield. Plaintiff alleged Sevigny was negligent for failing to timely and properly inspect his truck tires for slag lodged in or between them, and JRP was vicariously liable for his actions. The court concluded assuming Sevigny owed Williams a duty to use ordinary care under the circumstances, a reasonable jury could have concluded, based on all the evidence, he did not breach this duty. Plaintiff conceded on appeal the evidence showed Sevigny performed an inspection of the tires on his truck before he left the mill. He performed a "circle check" to insure nothing on the truck needed to be repaired and nothing was lodged between the tires. Further, even if the jury found Sevigny breached the duty owed to Williams, it reasonably could have concluded his actions did not cause her death. While it was undisputed she died due to a large object crashing through her windshield and hitting her in the head, the object was never conclusively identified as slag. There was also conflicting evidence as to whether the object striking Williams was lodged in Sevigny's truck tires. If the jury accepted the testimony of a defense expert, H, it reasonably could have found the accident was caused by something other than an object lodged in Sevigny's tires. The court also held while H changed his testimony after his deposition, it would have been impossible for the defendants to supplement their interrogatory answers where H testified he did not change his opinions about the cause of the accident until after hearing the other evidence presented at trial.

 


This summary also appears under Insurance

 

Issues: Automobile negligence; Whether the plaintiff established a threshold injury; Auto Club Group Ins. Co. v. Burchell; Serious impairment of body function; MCL 500.3135; Kreiner v. Fischer; Williams v. Medukas; McDanield v. Hemker; Odom v. Wayne County

Court: Michigan Court of Appeals (Unpublished)

Case Name: O'Keefe v. Auto Club Ins. Ass'n

e-Journal Number: 44267

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

The trial court erred by granting summary disposition in favor of defendant-Kirchoff in this personal injury action holding plaintiff had not established a threshold injury. Kirchoff backed her car into one driven by plaintiff. Plaintiff did not seek treatment immediately, but later contended she suffered neck and back injuries in the accident and sued to recover noneconomic damages for the injuries. Defendant conceded, at least for the purpose of the appeal, plaintiff suffered objectively manifested back and neck injuries as a result of the accident. The medical history supported this, at least to an extent there was a question of fact regarding whether her back and neck injuries were caused or exacerbated by the accident. However, the court found the trial court erred when it determined plaintiff's injuries had not affected her normal life to the extent necessary to show a threshold injury under Kreiner. The nature and extent of the initial impairment, and the type and length of treatment plaintiff required, were not extensive. Plaintiff did not seek treatment immediately, and her crash was not severe. In addition, her entire course of treatment appeared to have consisted, apart from diagnostic tests, of one physical therapy session of a treatment regimen, which ended "for personal reasons," two cervical epidural steroid injections, and treatment with pain and muscle relaxant medications. However, plaintiff's residual impairments appeared to be permanent, and reportedly have affected all aspects of her life. She argued her physician's letter stating she needed attendant care services for house and yard work constituted a physician-imposed limitation on her activities. The letter did not explicitly restrict her activity, but it was a reasonable inference if a physician prescribes attending care services for house cleaning, laundry, shopping and garden work he determined she could not do these things without assistance. Reversed.