Settlement agreement; LLC ownership dispute; Motion to reopen; Enforcement of settlement agreement; Breach; Motion for relief from judgment; MCR 2.612(C)(1)(c); Fraud; Reasonable time; Damages; Gross revenue; Civil contempt; MCL 600.1701(g); MCR 2.621(F); Attorney fees

The court held that the trial court did not abuse its discretion by denying defendants’ motion to partially vacate or modify post-settlement enforcement orders and by entering judgment for plaintiff. The parties settled plaintiff’s business-ownership dispute involving defendant-MDM and two billboards, but defendants failed to resolve outstanding rent owed to nonparty-Cedan Holdings, preventing plaintiff from closing on financing to pay off certain loans and take over MDM. After the trial court found defendants breached the settlement agreement and entered multiple enforcement orders, defendants moved for relief, alleging plaintiff had fraudulently represented that he was ready and able to close. On appeal, the court held that the alleged financing issue was “not a new revelation to defendants” because defense counsel had raised the same concern before the original enforcement order, and defendants failed to timely seek reconsideration. The court also rejected defendants’ damages argument because the advertising “revenue was not awarded as a civil contempt sanction,” but as relief under the settlement agreement after breach, and the later contempt sanctions were the $53,000 in interest and $14,872 in attorney fees. Finally, the court held that defendants’ challenges involving defendants-GLM and Thompson were untimely because, under MCR 2.612(C)(2), their “motion for relief was not made within a reasonable time.” Affirmed.

Settlement agreement; LLC ownership dispute; Motion to reopen; Enforcement of settlement agreement; Breach; Motion for relief from judgment; MCR 2.612(C)(1)(c); Fraud; Reasonable time; Damages; Gross revenue; Civil contempt; MCL 600.1701(g); MCR 2.621(F); Attorney fees

The court held that the trial court did not abuse its discretion by denying defendants’ motion to partially vacate or modify post-settlement enforcement orders and by entering judgment for plaintiff. The parties settled plaintiff’s business-ownership dispute involving defendant-MDM and two billboards, but defendants failed to resolve outstanding rent owed to nonparty-Cedan Holdings, preventing plaintiff from closing on financing to pay off certain loans and take over MDM. After the trial court found defendants breached the settlement agreement and entered multiple enforcement orders, defendants moved for relief, alleging plaintiff had fraudulently represented that he was ready and able to close. On appeal, the court held that the alleged financing issue was “not a new revelation to defendants” because defense counsel had raised the same concern before the original enforcement order, and defendants failed to timely seek reconsideration. The court also rejected defendants’ damages argument because the advertising “revenue was not awarded as a civil contempt sanction,” but as relief under the settlement agreement after breach, and the later contempt sanctions were the $53,000 in interest and $14,872 in attorney fees. Finally, the court held that defendants’ challenges involving defendants-GLM and Thompson were untimely because, under MCR 2.612(C)(2), their “motion for relief was not made within a reasonable time.” Affirmed.

Waiver of the right to counsel; Compliance with MCR 6.005(E); People v Helmer; Applicability of People v King

Rejecting defendant’s claim that his waiver of counsel was deficient and failed to comply with MCR 6.005(E), the court affirmed his convictions of AWIM, FIP, felony-firearm, and transportation or possession of a loaded firearm in or upon a vehicle. He argued “that the trial court’s failure to reaffirm his waiver of his right to counsel until after jury selection deprived him of his right to counsel during a critical stage of the proceedings.” The court disagreed. While he relied on King in asserting that a trial court has to strictly adhere to MCR 6.005(E)’s requirements, the court found that case “factually and legally inapposite[.]” King only addressed a defendant’s initial waiver, which was not an issue here. And while it mentioned MCR 6.005(D)’s requirements, “subsection (E) was neither considered nor addressed in that opinion.” The court additionally found that there was “no support for the proposition that MCR 6.005(E) must be strictly adhered to, and, in this case, the trial court asked defendant at the beginning of the trial whether he wished to represent himself. [He] stated that he continued to desire to represent himself.” He offered “no argument or precedent that would require a trial court ask that question before voir dire.” Thus, as Helmer held that “compliance with MCR 6.005(E) is not a constitutional requirement, . . . defendant was not deprived of his constitutional right to counsel during jury selection, and the trial court did not err.”

Request for substitution of counsel; People v McFall; Good cause; Removal of a witness from the prosecution’s witness list due to inability to locate; People v Butsinas; Due diligence; People v Everett; Sufficiency of the evidence for FIP & felony-firearm convictions; Constructive possession; People v Hill; Aiding & abetting; People v Moore

The court held that the trial court did not abuse its discretion in denying defendant’s request for substitution of counsel, or in allowing the prosecution to remove a witness it could not locate from its witness list. Further, there was sufficient evidence to support defendant’s FIP and felony-firearm convictions. He was also convicted of felonious assault, delivery of a controlled substance (less than 50 grams), assault, and unlawful imprisonment. The case arose from his invasion of the home of his daughter (M) and son-in-law (W). The court first concluded that his “general unhappiness with counsel's representation or lack of confidence in his attorney, unsupported by a substantial reason, did not establish good cause.” The trial court appropriately considered that granting the request “would unreasonably disrupt the judicial process” given that the trial date was approaching. As to the removal of W from the prosecution’s witness list, the court noted that “what efforts constitute due diligence may vary from case to case depending upon the facts of each case.” Further, removing a witness from a witness list “presents different considerations than a scenario in which the prosecution seeks to admit the prior testimony of an unavailable witness[.]” It held that the prosecution made sufficiently diligent efforts to produce W, and that defendant was not prejudiced by W’s removal from the list. There was no indication his “testimony would exculpate defendant” and there was “ample evidence” inculpating him in the crimes, including the witness testimony and photos. As to the FIP conviction, the evidence supported that “defendant had constructive possession of the gun and possessed the gun jointly with” another man (J). The evidence also established that J “was in possession of a gun when he entered [M’s] home without her permission and while he and defendant beat” W. It supported “a finding that defendant aided and abetted [J] in carrying or having in his possession a gun while [J] attempted to commit or committed a felony.” Affirmed.

Duress defense; United States v Johnson; Continuing offense under 8 USC § 1326(a); Immediate threat; Reckless placement in the situation; Reasonable legal alternatives; Bona fide surrender effort; Speedy Trial Act; 18 USC § 3161(c)(1); Initial appearance in charging district; Judicially created exception; Substantive reasonableness; § 3553(a); Within-Guidelines presumption; United States v Vonner

[This appeal was from the WD-MI.] The court held that the district court properly barred defendant from presenting a duress defense, correctly rejected his Speedy Trial Act claim, and imposed a substantively reasonable 48-month sentence. Defendant, a Mexican citizen who had never received legal permission to enter the United States, had previously been removed twice and convicted of illegally being found in the country after removal. After again entering the United States sometime between 2016 and 2019, he remained undetected for at least five years before being charged under § 1326(a). He sought to argue that he reentered under duress because the Sinaloa cartel, for which he previously sold drugs, was trying to kill him. The district court barred the defense, denied his Speedy Trial Act motion, and after his jury conviction imposed a within-Guidelines 48-month sentence. On appeal, the court concluded that the proposed duress defense “fails at nearly every step.” Defendant remained unlawfully in the country for years without surrendering, failed to identify an imminent threat when he crossed the border, had voluntarily joined the cartel, and did not show that he lacked reasonable legal alternatives such as seeking police assistance, relocating within Mexico, or traveling elsewhere. The court found that he “failed to establish nearly every element of duress.” It also rejected the Speedy Trial Act claim. Under § 3161(c)(1), “the timer begins when the defendant has an initial appearance in the specific district where the charge is pending, even if he had a prior initial appearance in another district.” Excluding the period before defendant’s Western District of Michigan appearance left only 34 days before trial, well within the 70-day limit. Finally, the court found the sentence substantively reasonable because the district court considered defendant’s childhood trauma but weighed it against his repeated unlawful entries and extensive criminal history. His argument “‘ultimately boils down to an assertion that the district court should have balanced the § 3553(a) factors differently,’” which was beyond the scope of the court’s appellate review. Affirmed.