Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Statutory conversion; MCL 600.2919a; Costs & treble damages; Investigatory expenses; “Result”; Attorney fees; Sufficiency of proofs
The court held “that MCL 600.2919a does not alter the common-law measure of damages for conversion aside from authorizing a multiplied recovery. Because investigatory expenses incurred in uncovering or responding to a conversion fall outside that measure, they are not recoverable under the statute and may not be trebled.” It further concluded that plaintiff-law firm “failed to substantiate both its claimed investigatory expenses and its request for attorney fees.” Thus, the court held that while it affirmed “the award of treble damages as to the documented pecuniary losses, [it reversed] the award of trebled investigatory expenses as not authorized by statute, [vacated] the awards for investigatory expenses and attorney fees as inadequately substantiated, and remanded[.]” The case involved defendant-law firm employee who charged “tens of thousands of dollars in personal purchases to the firm’s credit cards.” She first challenged the trial court’s decision to treble plaintiff’s investigatory expenses. “Under MCL 600.2919a, a person harmed by another’s theft, embezzlement, or conversion may recover three times the amount of ‘actual damages sustained, plus costs and reasonable attorney fees.’” The court held “that the statute leaves the common-law measure of damages for conversion unchanged, except to authorize a multiplied recovery. Because investigatory expenses incurred in uncovering or responding to a conversion fall outside that measure, they are not recoverable as ‘actual damages’ under the statute and cannot be trebled.” Defendant also challenged “the sufficiency of plaintiff’s proofs supporting both the $100,000 in investigatory expenses and the $100,000 attorney fee award.” The court held “that plaintiff failed to substantiate its claimed investigatory expenses and attorney fees with adequate proof.’” Finally, it found that defendant, “as the prevailing party, may tax costs under MCR 7.219(A).”
Substitution of appointed counsel; Good cause; People v Buie (On Remand); Admission of preliminary exam testimony; MRE 804(b)(1); People v Adams; Confrontation Clause opportunity to cross-examine; United States v Owens
Holding that the trial court did not err in denying substitution of counsel one week before trial, properly admitted the complainant’s preliminary exam testimony, and that defendant failed to establish ineffective assistance in plea discussions, the court affirmed. He was convicted of armed robbery, FIP, and felony-firearm. Defendant’s third appointed attorney reported a claimed breakdown on the eve of trial and the trial court responded, “The Court is not giving him another attorney.” Trial proceeded and counsel actively litigated motions, examined witnesses, and argued to the jury. As to the hearsay and confrontation issues, the complainant appeared but refused to testify, the trial court found unavailability and admitted the preliminary examination testimony under MRE 804. The court emphasized that the Confrontation Clause “guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” As to ineffective assistance tied to rejected plea offers, the court found the record lacked proof that counsel misadvised defendant about intoxication or dismissal if the witness did not testify, noting that defendant’s own sentencing statement showed only that he “believed” certain defenses would be raised and that his lawyer in fact moved to dismiss “at defendant’s insistence,” which undercut his claim.
Providing material support or resources to a terrorist organization; 18 USC § 2339B; Whether “translation services” are covered by the statute; Purported “intrinsic acts” evidence; Applicability of FRE 404(1)(b); Applicability of FRE 405; Denial of a request to stipulate; Allowing an FBI agent to use a pseudonym at trial; Jury instructions; Sentencing; Procedural reasonableness; Enhancement for “federal crime[s] of terrorism” (USSG § 3A1.4); Substantive reasonableness
The court held that § 2339B (knowingly providing material support to a known terrorist organization) covered defendant-Carpenter’s actions where translating videos from Arabic into English furthered ISIS’s “propaganda mission,” and translation services “are cut from the same cloth as other ‘expert’ services[.]” Carpenter founded an organization to support ISIS, Ahlud-Tawhid Publications (ATP), which translated and published ISIS propaganda. He would translate ISIS materials into English, wrote original material for ATP, and established a group secure-messaging platform. A jury convicted him of knowingly providing material support to a known terrorist organization. Carpenter claimed that the indictment and the statute did not cover his conduct. The court disagreed, holding that translation “work fits within the statute’s prohibition on providing ‘any . . . service’ to a terrorist organization.” The Supreme Court has explained that “‘service’ encompasses ‘concerted activity’ in support of another. That is just what Carpenter did in helping ISIS to make its propaganda videos available to those who speak only English.” Further, the statute provided him “with all the notice a reasonable person would need to know that this support to a foreign terrorist organization would violate the law.” The court also rejected his evidentiary challenges. It agreed with the district court’s ruling that “evidence of Carpenter’s role in ATP, ATP’s work product, and [his] interaction with ISIS’s work product” constituted “intrinsic acts,” and also complied with FRE 403. Further, the government was not required to provide notice of intent to show screenshots of Carpenter's WhatsApp messages where they were introduced to counter his entrapment defense. The court also declined to extend a defendant’s right to stipulate to cover Carpenter’s offer to stipulate that he knew ISIS was a terrorist organization. In addition, it held that the district court did not err by allowing an FBI agent to use a pseudonym at trial where Carpenter failed to show that disclosing the agent’s identity would aid his defense. Next, the court found no abuse of discretion in the district court’s declining to give a jury instruction “about the proper way to assess bad acts evidence” where the district court never actually permitted the introduction of such evidence. And the district court did not err in giving a Allen charge using the Sixth Circuit pattern jury instruction. Lastly, the court rejected his procedural and substantive challenges to his sentence, concluding the district court properly applied the § 3A1.4 enhancement and his 240-month sentence “was within the Guidelines range. While lengthy, the term of supervised release, 20 years, also is well within the statutory authorization.” Affirmed.
Sufficiency of the evidence for a conviction of unlawful distribution of a controlled substance by a physician; Knowledge that the prescriptions were unauthorized; “Deliberate ignorance” jury instruction; Reading of the verdict without defendant present; Lack of an evidentiary hearing on defendant’s motion for a new trial
The court held that there was sufficient circumstantial evidence that defendant-Dr. Getachew knew the prescriptions at issue that he wrote were unauthorized so that his convictions did not constitute a “miscarriage of justice.” It also found no error in the district court’s giving a deliberate-ignorance jury instruction. Further, he did not show that his absence when the verdict was read affected his substantial rights, and “the district court did not abuse its discretion in denying his request for an evidentiary hearing” on his motion for a new trial. Dr. Getachew, an addiction specialist, was convicted of 11 counts of unlawful distribution of a controlled substance by a physician, for prescribing opioids without a legitimate medical purpose. His charges arose from the “‘astronomically high’” number of Subutex prescriptions he offered his patients. Subutex is prescribed when a patient is allergic to another alternative. The allergy is very rare. Subutex is “much easier to abuse than” the alternative “and has a much higher street value.” Getachew argued that the government failed to prove that he knew the prescriptions he was writing were unauthorized. Because he did not move for an acquittal, his convictions could not be overturned absent a “‘manifest miscarriage of justice.’” The court noted that he “regularly prescribed drugs to patients who had no documented need for them.” Further, he prescribed the drug to an undercover agent, even though “none of her drug tests showed any signs of her claimed oxycodone addiction. Dr. Getachew also prescribed Subutex to several patients without any supporting documentation for their claimed naloxone allergies[.]” And the evidence permitted the inference that he “routinely failed to examine his patients. The medical charts for every patient named in the indictment contained identical examination notes for every appointment.” In addition, he “continued issuing prescriptions despite significant red flags that patients diverted their medications.” His sufficiency argument failed. Getachew next argued that the district court erred by instructing the jury on deliberate indifference, and the court acknowledged that there was “room for debate” on that issue. But it concluded “the instruction did not affect Dr. Getachew’s substantial rights” where there was enough evidence to support his actual knowledge. The court also determined that the “district court did not err, plainly or otherwise, in crafting this instruction.” And nothing suggested his absence at the reading of the verdict “had the potential to change” it. Affirmed.
Election-related motion for mandamus & declaratory relief; Barrow v Detroit City Election Comm’n; Interpretation of city Charter provisions; Whether the Charter conflicted with MCL 168.737a; MCL 168.321(1); Whether plaintiff satisfied the Charter’s residency requirement; The court’s jurisdiction; “Final order”; Treating an appeal as a granted application for leave to appeal; Department of Elections (DOE)
The court held that plaintiff-King was “ineligible to be elected to the office she” sought because she could not meet “the voter-registration requirement of Detroit City Charter, § 2-101.” Thus, she was not entitled to a writ of mandamus or declaratory relief. King sought to represent a district on the City’s Board of Police Commissioners, and filed a declaration of intent to seek the office as a write-in candidate. The City’s DOE informed her that she was disqualified from being a write-in candidate because she was not a resident of the district for one year before filing for office. She later filed this action. The trial court denied her motion for mandamus and declaratory relief. On appeal, the court first considered whether it had jurisdiction. It found that while the trial court “adjudicated King’s motion, the complaint itself” was still pending in the trial court. Thus, the order here was not a “final order” or “final judgment” and the court lacked “jurisdiction over the claim of appeal.” But it exercised its discretion to treat the appeal as a granted application for leave. Turning to the merits, the court agreed with the trial court “that the Charter language controls and that a plain application of that language to the facts shows that King is simply not eligible to be elected to the office she seeks given when she registered to vote at the LaSalle address.” The court reviewed its decision in Barrow, which was also an election-related dispute involving the Detroit City Charter. It noted that “Barrow is different from the present case in that, while Duggan was running for an at-large office (Mayor), in this case, King seeks to run for a non-at-large (i.e., district) office.” The Charter provision at issue, § 2-101, provides that “any person seeking office from a non at-large district must be a resident and qualified, registered voter in such district for one (1) year at the time of filing for office[.]” King did not “explain how she satisfies this language given when she registered to vote in” the district (three days before she filed for office). The court rejected her argument based on MCL 168.737a. “In light of the plain language of MCL 168.321(1), there is no conflict between any statute and § 2-101 of the Charter.” It also found no conflict between § 2-101 and another Charter provision, § 7-802. Affirmed.
True cash value (TCV), state equalized value (SEV), & taxable value (TV) of real property; Whether cargo containers were “fixtures”; Tuinier v Bedford Charter Twp; Wayne Cnty v Britton Trust; Ottaco, Inc v Gauze; Doctrine of constructive annexation; Court-reporter expenses; Tax Tribunal Rules (TTRs); Former TTR 255(1) (2015 Annual Admin Code Supp, R 10255(1)); Whether the MCRs barred the Tax Tribunal (TT) from requiring the parties to secure the court reporter & pay the reporter’s expenses; Acceptance of a second-amended petition; TTR 227(1) (MI Admin Code, R 792.10227(1)); TTR 221 (R 792.10221)
The court held that the TT erred in finding that the cargo containers on petitioner’s real property “were fixtures and were taxable for purposes of determining the TCV.” But the TT did not err in requiring the parties to hire the court reporter for the hearing on the petition and to pay the reporting expenses, or in not accepting petitioner’s second-amended petition for filing. The court explained in Tuinier that “the test for whether property is considered a fixture involves a three-part analysis” – (1) whether the property in question “was actually or constructively annexed to the real estate; (2) whether the property was adapted or applied to the use or purpose of that part of the realty to which the property in question is connected or appropriated; and (3) whether the property owner intended to make the property a permanent accession to the realty.” All three elements must be met for the property to constitute a fixture. The court disagreed with the TT’s conclusion that the cargo containers here satisfied the first element. They “were not cemented, bolted, or otherwise physically attached to the property, i.e., the land itself. Thus, [they] were not actually annexed to the property. Further, while the cargo containers each weighed over four tons, which suggests the possibility of ‘constructive annexation by massive weight,’ that doctrine does not apply here. The cargo containers, presumably, were manufactured and designed to transport various materials. Removing [them] from the property would not impair their value or utility in any respect.” There was also no evidence that removing them “would affect the value of the realty.” Given that they “did not satisfy the first element of the three-part test, it follows that they were not ‘fixtures’ for the purposes of MCL 211.2(1)(a).” As to the court reporter expenses, the TT “has the authority to order that the hearing be recorded. Although the TTRs are silent on the issue of the court-reporting expenses, the [TT’s] interpretation of former TTR 255(1) as permitting the [TT] to require the parties to hire and pay the reporter’s expenses is reasonable because it is consistent with the regulation.” Affirmed in part, reversed in part, and remanded.