The Prison Litigation Reform Act (PLRA) three-strikes rule; 28 USC § 1515(g); Whether § 1915(g) allows a court that dismisses a prisoner’s lawsuit to bind a later court with its strike determination; Whether a district court may “recommend” that a future court treat the dismissed action as a strike; Hill v. Madison Cnty (7th Cir.); Michigan Department of Corrections (MDOC)

[This appeal was from the WD-MI.] The court held that PLRA § 1915(g) does not permit a court that makes a three-strike determination in a prisoner’s lawsuit to bind a later court. But a district court may “recommend” that a future court treat the dismissed action as a strike, and such a recommendation does not run afoul of Article III of the U.S. Constitution. Under the three strikes rule, a prisoner is required to start paying litigation fees if he or she is found to have filed three frivolous lawsuits. Plaintiff-prisoner (Simons) filed suit claiming that the MDOC seized his property by removing money from his account to repair a window he had broken. The district court rejected his suit, and counted it as a strike. The court first considered whether § 1915(g) allows a court that makes a strike determination in a prisoner’s lawsuit to bind to bind a later court, and held that it does not. Under the statute, the “binding determination” whether the prisoner has previously brought three or more frivolous claims is “for the court in the fourth or later proceeding.” But the court also held that a district court may recommend that a future court treat the dismissed action as a strike, and that Article III does not “prohibit a court that dismisses a prisoner’s lawsuit from making a non-binding recommendation” as to whether a dismissal should be treated as a strike for § 1915(g) purposes. “Although the case-or-controversy requirement bars federal courts from issuing binding legal rulings without a live dispute, it does not prohibit including what amounts to dicta in district court orders. Such non-binding statements appear all the time. And district courts opine on matters that concern the consequences of a judgment no less frequently.” The district court rejected Simons’s federal claims on the merits, and it declined to exercise supplemental jurisdiction over his state-law claims. The court noted that it had “no basis . . . for assessing whether the district court’s non-binding strike call was right at this point[,]” and that Simons could file another “free lawsuit in the future.” It will be left “to a fourth or later court to decide whether the district court’s non-binding strike call should become a binding strike.” Affirmed.

Search & seizure; Motion to suppress evidence; A Terry stop; People v Shankle; Limits; Sibron v New York; Ybarra v Illinois

Holding that the police did not have the legal right to detain and search defendants-McCloud and Edwards, the court concluded that the trial court erred in denying their motion to suppress. Police were conducting an undercover investigation into a club. Officer K “detained McCloud because McCloud was security. He and the other police officers needed to remove security so decoys could enter the club with their weapons. [K] testified at the motion hearing that it was common practice to detain security during undercover operations, but he failed to provide any testimony that indicated he was detaining McCloud because he had a reasonable suspicion that McCloud had committed or was committing any crimes.” The court noted that immediately after K removed McCloud from the building, he put him “against a wall, asked him if he had any narcotics or weapons on him, which McCloud contended that he did not, and then performed a pat down of his person. Although [K] contended that the pat down was for ‘Officer safety,’ [K] failed to provide any testimony that indicated that McCloud was armed and dangerous.” In addition, another officer (L) did not “provide any testimony indicating that he detained Edwards because he had a reasonable suspicion that Edwards had committed or was committing any crimes.” L only testified that his assignment “was ‘to detain security, anyone at the door,’” which was common in “this type of operation[.]” L did not offer any testimony indicating “that Edwards had made motions or gestures signifying that he was armed or dangerous at any point.” Considering the evidence here “in light of Sibron and Ybarra,” the court concluded that, as in Sibron, “the mere act of working security at an afterhours club being investigated for the possibility that it was selling liquor without a license did not provide reasonable suspicion for a Terry stop at the time of defendants’ seizure and pat down search.” In addition, “as in Ybarra, there was no testimony that either defendant gave any indication that they possessed a weapon or intended to commit an assault.” Given that the search and seizure did not meet the requirements for a Terry stop and thus, was “unreasonable, the evidence seized from defendants must be suppressed.” Reversed and remanded.

Jury instructions as to the burden of proof; Waiver; Plain error; Late endorsement of a prosecution witness; MCL 767.40a(4); Deadlocked jury instruction; M Crim JI 3.12; Hearsay; Other acts evidence; “Invited error”; Right to counsel during a photographic lineup; People v Hickman; Whether the lineup was unduly suggestive; People v Henry (After Remand)

While the trial court plainly erred when it once instructed the jury that defendant had the burden of proof as to the date of a CCW charge, the court held that, based on the instructions as a whole, this one “mistaken statement did not affect the outcome of the” trial. Further, it did not abuse its discretion in allowing the late endorsement of two police witnesses, and it did not coerce the jury into reaching a verdict by giving M Crim JI 3.12. The court found that defendant was not entitled to relief based on his claims that a police witness’s (C) testimony constituted hearsay and other acts evidence, and rejected his challenges to the admission of identification evidence. He was convicted of armed robbery, FIP of a firearm and ammunition, CCW, felonious assault, and felony-firearm. As to the erroneous burden of proof instruction, the court noted that the “trial court thoroughly instructed the jury multiple times throughout the proceedings that the prosecution had the burden to prove all elements of the charged offenses, beyond a reasonable doubt, and defendant neither had to present evidence nor prove his innocence.” In addition, the written jury instructions did not state that he “had a burden to prove that the offense occurred on a specific date; in fact, they omitted any such element regarding the offense date.” The court noted that the jury sent multiple notes to the trial court during deliberations, including one “requesting clarification on the elements of felony-firearm. There is no indication the jury was confused about the elements of carrying a concealed pistol.” As to the two police witnesses, they were both listed on the prosecution’s witness list filed about “three weeks before the start of the trial despite the fact that they were not endorsed on the witness list.” They were two of the four officers who arrested defendant and they were the only two “listed on the witness list. Presumably, defendant knew about the witnesses.” There was also no evidence that the failure to endorse them was intentional. As to C’s testimony, the trial court ordered that his hearsay statement about another robbery “be stricken from the record and the jury was instructed to disregard” it. Further, defendant elicited the other references to that prior robbery, which constituted invited error. Affirmed.

Sentencing; Scoring of OV 12; MCL 777.42(1)(d) & (e); People v Light; Contemporaneous felonious criminal act; MCL 777.42(2)(a)(i) & (ii); People v Abbott; Reliance on acquitted conduct; People v Beck

The court held that remand was required for the trial court to articulate its reasons for scoring 5 points for OV 12. Defendant was convicted of OWI 3d and resisting arrest. The trial court originally sentenced her as a fourth habitual offender to concurrent prison terms of 58 months to 30 years for the former and 3 to 15 years for the latter. In a prior appeal, the court affirmed, but remanded for resentencing, finding the record did not establish she was a fourth offense habitual offender. On remand, the trial court found her habitual offender status was correct and imposed the same sentences it originally imposed. In the present appeal, she claimed the trial court erred by scoring 5 points for OV 12 because it relied on conduct for which she was acquitted. The court found remand was “necessary for the trial court to consider whether the facts” supported it. “As the prosecution concede[d], the conduct that formed the basis for either of defendant’s charges for resisting arrest could not be considered contemporaneous felonious criminal acts under OV 12. The resisting arrest charge for which she was convicted could not be considered because it resulted in a separate conviction, and the resisting arrest charge for which she was acquitted could not be considered because it was acquitted conduct.” As such, if the trial court scored 5 points for OV 12 by relying on the conduct underlying either of those charges, it erred by doing so. And if it did err, its error was not harmless. As such, the court could not “determine from the existing record why the trial court determined that OV 12 was appropriately assessed at five points. To do so, we would need to know which of defendant’s acts the trial court believed to constitute contemporaneous felonious criminal acts. This is a question of fact. And questions of fact are for the trial court.” Thus, remand to the trial court “is appropriate so that the trial court may either articulate its factual findings in support of the assessment of” 5 points for OV 12, or for resentencing under the corrected guidelines range. On remand, if the trial court finds that “no facts support an assessment of” 5 points for OV 12, it should vacate defendant’s sentence and resentence her under the corrected guidelines minimum sentence range. “On the other hand, if the trial court finds that there are facts supporting an assessment of” 5 points to OV 12, it should place those factual findings on the record to aid in appellate review. Remanded.

Search & seizure; Motion to suppress evidence seized pursuant to a search warrant; Validity of a search warrant affidavit; Franks v Delaware; People v Mullen; Relevance of the experience & training of the officer who provided the affidavit; People v Ulman; Whether the remaining information in the affidavit formed probable cause to issue the warrant

The court concluded that the trial court committed an error of law in seemingly finding the experience and training of the officer (C) who provided the affidavit for the search warrant was irrelevant. Further, it “failed to consider whether sufficient evidence existed for a finding of probable cause if the ‘deliberately misleading’ portions of the” affidavit were not considered. Thus, the court vacated the order suppressing the evidence seized pursuant to the search warrant and dismissing the charges, and remanded “for the trial court to further address this matter under the proper test as enunciated in Franks and Mullen.” The court ruled in Ulman as to search warrant affidavits that “the affiant’s experience is relevant to the establishment of probable cause.” It appeared that the trial court found “the affidavit contained deliberately false and misleading information” primarily because it failed to portray the manner in which C’s “investigation proceeded chronologically from the time he first received the tip from” a confidential informant (CI) in 11/18 until the last controlled transaction in 3/19. But, although it determined “there was deliberately false and misleading information in the affidavit as a result of [C’s] omission of dates, that finding alone does not constitute a sufficient ground to void the warrant.” Rather, before a trial court can permissibly rule that a warrant is void, it must “consider whether the ‘remaining information in the search warrant affidavit, after the improperly omitted information is added and the improper information is disregarded, is sufficient to form probable cause to issue [the] search warrant[.]’” The trial court did not do so here. C testified at the evidentiary hearing that he first gathered the information contained in ¶ 5 of the affidavit in 11/18 but also confirmed it was still accurate in 3/19 before conducting the 3/18/19 “controlled transaction. The trial court failed to consider whether the affidavit would have provided probable cause to support the search warrant with the addition of this clarifying information . . . .” The court noted that in ¶ 7, the affidavit included a description “of a controlled drug transaction conducted at the location to be searched, within 48 hours of the issuance of the warrant, and indicating that the [CI] identified defendant as the seller of the drugs purchased. The trial court also failed to consider this untainted portion of the affidavit in” determining probable cause.

Jury instructions as to sexual exploitation of a minor (i.e., producing child pornography); Whether Sixth Cir. P. Jury Instr. 16.01(2)(C) is consistent with 18 USC § 2251(a); Whether the district court erred by not giving defendant’s proposed jury instruction; Sentencing; Substantive reasonableness

In an issue of first impression in this circuit, the court held that Pattern Jury Instruction 16.01(2)(C), which is given in cases involving § 2251, “is soundly based on the law.” Defendant-Frei was convicted of sexual exploitation of a minor under § 2251 and other crimes. He was sentenced to 318 months and a life term of supervised release. Several of his convictions arose from his sexual interactions with a 15-year-old girl, TB, which he filmed. He argued that the district court’s jury instructions on § 2251 were “misleading” and that it erred by rejecting his requested supplemental instruction. 16.01(2)(C) explains the phrase “for the purpose of,” and Frei wanted to include this language: “‘The defendant must have engaged in sexually explicit conduct with the specific intent to produce a visual depiction. It is not enough for the government to simply prove that the defendant purposely produced the visual depiction.’” He argued that this more clearly represented the crime’s mens rea requirement. The district court ultimately instructed the jury using the standard 16.01 instruction without alteration. In closing argument, Frei’s attorney claimed “the government had to prove that Frei’s recording of TB having sex ‘must have been the purpose of the sexual act’ and disputed that the purpose of Frei’s conduct was anything more than having sex." The court first rejected his claim that 16.01(2)(C) is inconsistent with § 2251(a) and failed to specify a defendant’s level of culpability. It looked at the district court’s § 2251(a) instructions as a whole and held that they accurately stated the law. The court noted that there was no Sixth Circuit case law supporting the mens rea portion of the instruction, but in an issue of first impression, concluded that the law supported 16.01(2)(C). It noted nothing in § 2251(a) requires that “the defendant to sexually engage with the minor for the sole purpose of producing visual depictions[,]” and that because § 2251 is a specific-intent crime, “the defendant must purposefully or intentionally commit the act that violates the law and do so intending to violate the law.” The instruction requires a defendant to have “‘acted with the intent to create visual depictions of sexually explicit conduct, and that the defendant knew the character and content of the visual depictions.’” The court found that it was “neither confusing nor prejudicial.” It also held that Frei’s proposed supplemental instruction “did not accurately state the law.” Finally, it affirmed his sentence, finding it substantively reasonable.

Dispute over the sale of a vacant lot; Scope of remand order; Rodriguez v General Motors Corp; The law-of-the-case doctrine; Grievance Adm'r v Lopatin; Due process; Principle that a person’s property interest includes title to the property; People v McKendrick; Notice & an opportunity to be heard; Michigan Elec Coop Ass’n v Public Serv Comm’n; Bullington v Corbell; Principle that the due process right to an opportunity to be heard does not require the trial court to hold oral argument; York v Civil Serv Comm’n; Notice under MCR 2.602(B)(3); Effect of a court rule violation; Longworth v Michigan Dep’t of Hwys & Transp; Oral argument; MCR 2.119(E)(3)

The court held that the trial court did not exceed the scope of the remand order by entering an order consistent with the prior opinion and denying plaintiff’s motion for a trial and discovery. It also held that her due process rights were not violated. Defendants, who live a couple of lots away from plaintiff, purchased the vacant lot adjacent to her property during a side lot fair. She sued, claiming they were not proper purchasers under the land bank’s amended policy, which restricted its sales of vacant side lots to adjacent property owners only. The trial court granted plaintiff summary disposition, voided the sale to defendants, and entered an order confirming the sale of the lot to plaintiff. In a prior appeal, the court found that the prior policy (allowing property owners on the same block to purchase vacant lots) applied because it was in effect when they purchased the lot. As such, they were eligible purchasers. On remand, the trial court entered an order denying plaintiff’s motion for a trial and discovery, quieted title to the property to defendants, and reinstated the valid quitclaim deed of the property to them. In this appeal, the court rejected plaintiff’s argument that the trial court exceeded the scope of the remand order by denying her motion for a trial and discovery, despite the court’s directive for further proceedings. The “remand order provided clear instructions for the trial court to follow: quiet title the property to [defendants], reinstate [their] quitclaim deed to the property, and enter a recordable order. That is the scope of the remand, and the trial court could not take any actions inconsistent with those directives.” By requiring the trial court to enter such an order, the court “plainly ordered that judgment was to be entered in favor of [defendants]—there were no issues of fact or law to further litigate because” it determined that the purchase agreement between defendants and the land bank was valid. The trial court complied with the court’s directives “by entering an order that is a near verbatim recitation of” its opinion. The court also rejected plaintiff’s claim that the order to close the case was entered without notice, without an opportunity (1) to produce discovery documents, (2) to file a brief, and (3) for oral argument. It was “evident that the trial court did not enter the order” sua sponte, and “the record indicates that plaintiff had notice of the order.” In addition, despite a technical deficiency with the court rule on notice, she “at least was on notice that the order was submitted under the seven-day provision of the court rules.” Further, the trial court’s “decision to suspend oral arguments on the basis of the COVID-19 pandemic was not an abuse of discretion.” Finally, simply because the “case was disposed of without a trial does not mean that summary disposition was the procedural mechanism” used by the trial court. Affirmed.

The Prison Litigation Reform Act (PLRA) three-strikes rule; 28 USC § 1515(g); Whether § 1915(g) allows a court that dismisses a prisoner’s lawsuit to bind a later court with its strike determination; Whether a district court may “recommend” that a future court treat the dismissed action as a strike; Hill v. Madison Cnty (7th Cir.); Michigan Department of Corrections (MDOC)

[This appeal was from the WD-MI.] The court held that PLRA § 1915(g) does not permit a court that makes a three-strike determination in a prisoner’s lawsuit to bind a later court. But a district court may “recommend” that a future court treat the dismissed action as a strike, and such a recommendation does not run afoul of Article III of the U.S. Constitution. Under the three strikes rule, a prisoner is required to start paying litigation fees if he or she is found to have filed three frivolous lawsuits. Plaintiff-prisoner (Simons) filed suit claiming that the MDOC seized his property by removing money from his account to repair a window he had broken. The district court rejected his suit, and counted it as a strike. The court first considered whether § 1915(g) allows a court that makes a strike determination in a prisoner’s lawsuit to bind to bind a later court, and held that it does not. Under the statute, the “binding determination” whether the prisoner has previously brought three or more frivolous claims is “for the court in the fourth or later proceeding.” But the court also held that a district court may recommend that a future court treat the dismissed action as a strike, and that Article III does not “prohibit a court that dismisses a prisoner’s lawsuit from making a non-binding recommendation” as to whether a dismissal should be treated as a strike for § 1915(g) purposes. “Although the case-or-controversy requirement bars federal courts from issuing binding legal rulings without a live dispute, it does not prohibit including what amounts to dicta in district court orders. Such non-binding statements appear all the time. And district courts opine on matters that concern the consequences of a judgment no less frequently.” The district court rejected Simons’s federal claims on the merits, and it declined to exercise supplemental jurisdiction over his state-law claims. The court noted that it had “no basis . . . for assessing whether the district court’s non-binding strike call was right at this point[,]” and that Simons could file another “free lawsuit in the future.” It will be left “to a fourth or later court to decide whether the district court’s non-binding strike call should become a binding strike.” Affirmed.

Acceptance of a road dedication; 2000 Baum Family Trust v Babel; Marx v Department of Commerce; Use of the road; Whether plaintiff had to bring an action under the Land Division Act (LDA) rather than a declaratory judgment action; Beach v Lima Twp (Beach II)

In this dispute over the use of a road (Lake Road) on the shore of Lake Huron, the court affirmed the trial court’s ruling that the county had accepted the dedication of the road to the public. It also affirmed summary disposition for defendants as to plaintiff-property owner’s request that the defendants who were lot owners may only use the road north of M-25 to access the lake. The court rejected defendants’ argument that plaintiff had to bring an action under the LDA rather than a declaratory judgment action. An “action under the LDA is not required to establish a disputed property right; rather, ‘the act allows a court to alter a plat to reflect property rights already in existence.’” A declaratory judgment action was appropriate given that plaintiff “sought to determine existing rights with respect to Lake Road north of M-25[.]” She asserted that the county never accepted the road’s 1941 dedication and thus, the offer must have lapsed “and the disputed property must have reverted to the abutting landowners, i.e.,” her predecessors. But for her claim to be successful, “this reversion must have taken place before the original proprietors or their heirs executed” a Release in 1972 that “purported to convey the land in fee simple to the county.” She failed to establish “that the offer to dedicate was not accepted, or that it lapsed, in the 30 years between the recording of the plat and the execution of the Release.” It was undisputed that the offer was never formally withdrawn, and that the proprietors or their assignees never acted toward the road in a “manner inconsistent with public use.” Further, the evidence showed that the county road commission ordered “the expenditure of public funds for the use of Lake Road as a public road, and otherwise acted in a manner consistent with its control over the property.” The court concluded that either the plat dedication “was accepted at some point before plaintiff filed suit, or the dedicated property was” conveyed to the county via the Release. Either way, the trial court was correct that “the county possessed an ownership interest in Lake Road as a public highway and that plaintiff had no ownership interest.” It also did not abuse its discretion in declining to declare the lot owners’ rights as to the road. The remedy for a landowner “aggrieved by the conduct of members of the public using an abutting public road is generally” in contacting the police or in nuisance and trespass law.

Dispute over the sale of a vacant lot; Scope of remand order; Rodriguez v General Motors Corp; The law-of-the-case doctrine; Grievance Adm'r v Lopatin; Due process; Principle that a person’s property interest includes title to the property; People v McKendrick; Notice & an opportunity to be heard; Michigan Elec Coop Ass’n v Public Serv Comm’n; Bullington v Corbell; Principle that the due process right to an opportunity to be heard does not require the trial court to hold oral argument; York v Civil Serv Comm’n; Notice under MCR 2.602(B)(3); Effect of a court rule violation; Longworth v Michigan Dep’t of Hwys & Transp; Oral argument; MCR 2.119(E)(3)

The court held that the trial court did not exceed the scope of the remand order by entering an order consistent with the prior opinion and denying plaintiff’s motion for a trial and discovery. It also held that her due process rights were not violated. Defendants, who live a couple of lots away from plaintiff, purchased the vacant lot adjacent to her property during a side lot fair. She sued, claiming they were not proper purchasers under the land bank’s amended policy, which restricted its sales of vacant side lots to adjacent property owners only. The trial court granted plaintiff summary disposition, voided the sale to defendants, and entered an order confirming the sale of the lot to plaintiff. In a prior appeal, the court found that the prior policy (allowing property owners on the same block to purchase vacant lots) applied because it was in effect when they purchased the lot. As such, they were eligible purchasers. On remand, the trial court entered an order denying plaintiff’s motion for a trial and discovery, quieted title to the property to defendants, and reinstated the valid quitclaim deed of the property to them. In this appeal, the court rejected plaintiff’s argument that the trial court exceeded the scope of the remand order by denying her motion for a trial and discovery, despite the court’s directive for further proceedings. The “remand order provided clear instructions for the trial court to follow: quiet title the property to [defendants], reinstate [their] quitclaim deed to the property, and enter a recordable order. That is the scope of the remand, and the trial court could not take any actions inconsistent with those directives.” By requiring the trial court to enter such an order, the court “plainly ordered that judgment was to be entered in favor of [defendants]—there were no issues of fact or law to further litigate because” it determined that the purchase agreement between defendants and the land bank was valid. The trial court complied with the court’s directives “by entering an order that is a near verbatim recitation of” its opinion. The court also rejected plaintiff’s claim that the order to close the case was entered without notice, without an opportunity (1) to produce discovery documents, (2) to file a brief, and (3) for oral argument. It was “evident that the trial court did not enter the order” sua sponte, and “the record indicates that plaintiff had notice of the order.” In addition, despite a technical deficiency with the court rule on notice, she “at least was on notice that the order was submitted under the seven-day provision of the court rules.” Further, the trial court’s “decision to suspend oral arguments on the basis of the COVID-19 pandemic was not an abuse of discretion.” Finally, simply because the “case was disposed of without a trial does not mean that summary disposition was the procedural mechanism” used by the trial court. Affirmed.

Gift of an interest in real property; Requirements for a valid gift; Intent; Partition; Determination that each party owned a 50% interest in the property

The court held that the trial court did not err in determining that plaintiff-father intended to gift a one-half undivided interest in the real property at issue to defendant-son, in awarding each party 50% equity in the property, and in ordering defendant to pay plaintiff $140,105 for his interest in it. The only element of a valid gift that was at issue was intent. Plaintiff testified that “he told defendant he was advancing the money for the following reason: ‘I said that maybe I have a chance to do something for you now. We didn’t get along 10 or 11 years ago. Let’s try that again. I’d like to help you.’” He further testified that a few days after that, “he told defendant he should purchase the home so he could start a new life with his family. Plaintiff testified that all of the reasons he provided were positive and that ‘[i]t was a very fatherly situation.’” The court found that this testimony showed “that because he had an estranged relationship for most of defendant’s life, he wanted to do something to help defendant without expecting anything in return, which is evidence that plaintiff intended to transfer title of the property gratuitously to defendant.” Thus, the trial court did not clearly err in determining that plaintiff intended to gift defendant a one-half undivided interest in the property. He “intended to transfer title of the property gratuitously to defendant, there was delivery of the property, and defendant accepted the gift.” Thus, he could not revoke the gift after deciding “he no longer wanted to have a ‘financial connection’ with defendant.” Plaintiff next argued that the trial court should have found that he owned 100% of the equity in the property and ordered that he owned it or that it be sold and he receive all of the proceeds. Alternatively, he contended “the trial court should have found that each party owned 50% equity and ordered that the property be sold, that the proceeds be divided equally, and that defendant pay plaintiff $140,105 from his proceeds.” But the court found no error, noting that while they “owned the property as tenants in common, because neither the purchase agreement nor the warranty deed stated the interest each party would take, i.e., their proportional share, there was a rebuttable presumption that” each owned a 50% equitable interest in the property. Affirmed.