Sua sponte imposition of sanctions on attorneys; FedRCivP 11(b) & (c)(3); 28 USC § 1927; Jones v Illinois Cent RR Co; Whether appellants-attorneys knew or reasonably should have known that claims were frivolous or that their litigation tactics would needlessly obstruct the litigation; League of Indep Fitness Facilities & Trainers, Inc v Whitmer (Unpub 6th Cir); The fees & costs awarded

The court affirmed the district court’s sua sponte imposition of sanctions under Rule 11 as well as § 1927 against appellants-attorneys, concluding that the complaint was “haphazard” and that the claims lacked any “evidentiary support and were not warranted by existing law.” Appellants represented several clients who sued various state and local officials relating to business closures during the COVID-19 pandemic. In the merits litigation, the district court dismissed the complaint for failure to state a claim, and the court affirmed. A hearing was held and even though Rule 11 (c)(2) sanctions were unavailable, the district court granted sanctions sua sponte under Rule 11(c)(3) where it concluded that appellants had failed to make “‘even a modest effort to conduct legal research before they filed the Complaint or their futile effort to oppose the Motions to Dismiss,’” and that “‘[t]he number and extent of their errors infected the entire case . . . .’” On appeal, the court found that the district court could order sanctions sua sponte under Rule 11 (c)(3) “because, before doing so, it correctly ‘order[ed] . . . counsel “to show cause why conduct specifically described in the order has not violated Rule 11(b).”’” Appellants were given the opportunity to explain why they should not be sanctioned. And it agreed with the district court’s characterization of the complaint as “‘haphazard — at points, incomprehensibly so — and was littered with factual and legal errors.’” The court concluded that appellants “repeatedly made bare, conclusory, and unsupported arguments.” As to § 1927, it determined that “frivolous claims abounded in this case[,]” and that appellants “reasonably should have known based on the legal-research obligations owed to the court by members of the bar, that their claims had no legal basis.” The court agreed with the district court’s observations that its unpublished case, League, “‘was practically a mirror to the facts and legal issues in this case’” and that the court’s “application of the law there to indoor fitness facilities is ‘pertinent to the case here.’” Even though that case was unpublished and not dispositive, appellants’ failure to discuss it, even after defendants called it to their attention, “‘fell short of the obligations owed by a member of the bar’ and reflected the unreasonable multiplication of proceedings whose legal and factual bases were implausible from the start.”

Failure to swear in the jury; MCL 768.14; MCR 6.412(F) & 2.511(I)(1); People v. Allan; Effect of People v Cain on the holding in Allan; Plain-error review; People v Davis

The court held that the trial court’s failure to swear in the jury required reversal of defendant’s conviction and a new trial. The record indicated “the jury in this case did not receive or take any oath after its selection, and thus was not sworn in as required under MCL 768.14 and MCR 6.412(F)[.]” The court concluded that this “was error, and it was plain. But it was also forfeited, as defendant never objected to the absence of the oath.” Thus, his entitlement to relief depended “on the third and fourth prongs of plain-error review—whose analysis, in turn, depends on whether the error at issue was structural, as” he contended. The court “squarely addressed that question in Allan.” In that case, it found the error was structural and satisfied the third “‘prong without regard to the error’s effect on the outcome of defendant’s trial.’” Additionally, it found the fourth prong was satisfied. The court determined that Allan was on point here. In Cain, the Supreme Court abrogated Allan in part because it failed to “‘take a case-specific approach to the fourth prong.’” The court noted that the Supreme Court stressed this was “not ‘to diminish the value of the juror’s oath,’ but only to recognize that ‘[i]t is but one component—as important and as symbolic as it may be—in a larger process of fair and impartial adjudication,’ rendering Allan’s seemingly categorical approach to the fourth prong inappropriate. . . . Importantly, the Court in Cain only abrogated that portion of Allan’s analysis; it otherwise left the case intact and, while noting some potential doubt on the matter in response to the dissent, it expressly declined to reach whether the failure to swear in a jury was a structural error.” Since Cain, neither the court nor the “Supreme Court has revisited Allan’s published determination that the failure to swear in a jury is a structural error.” And the court found no case law indicating “that this determination no longer remains intact and binding on” it. As a result, “consistent with Allan,” it deemed the trial court’s failure here to swear in the jury a structural error. This meant “that the third prong of plain-error review is necessarily satisfied, and that the fourth such prong is presumptively satisfied.” The prosecution bore the burden “to rebut that fourth-prong presumption.” It did not make any such showing, or even try to do so – it “opted not to file a brief with this Court.” Reversed and remanded for a new trial.

Introduction of a defendant’s inculpatory statements; The corpus delicti rule; Ineffective assistance of counsel; Failure to make a futile objection; Right to present a defense; Right to a properly instructed jury; People v Ogilvie; Jury instructions; People v McKinney; Self-defense & defense-of-others jury instructions; Double jeopardy; FIP & felony-firearm convictions; People v Dillard; People v Mitchell; Sentencing; Proportionality of an above-guidelines sentence; People v Dixon-Bey; People v Lampe

The court held that: 1) the corpus delicti of defendant’s offense was established before his inculpatory statements were introduced; 2) he was not entitled to jury instructions on self-defense and defense-of-others; 3) double jeopardy was not violated; and 4) his above-guidelines sentence was not disproportionate. Defendant and his son, JS, arranged a meeting with the victim in order to exchange defendant’s gun and cash for a gun the victim was offering for sale. The exchange went wrong, JS was shot, and defendant returned fire, killing the victim. He was convicted of FIP and felony-firearm and sentenced to consecutive terms of 2 to 7½ years for the former and 2 years for the latter. On appeal, the court rejected his argument that the trial court erred when it admitted his statements to the police officer before the prosecution established the corpus delicti of the offense. The evidence “established the occurrence of a crime before the trial court admitted” the statements. It “showed that the police arrived on the scene in response to a shooting. They observed [the victim] lying on the ground, bleeding and unresponsive. Two handguns were on the ground nearby. In addition, JS was holding his face and bleeding profusely from his face.” As such, “the evidence showed that a crime occurred.” The court noted it “was not necessary that the evidence, apart from” defendant’s statements, establish his guilt. It also rejected his claim that he was entitled to a self-defense and defense-of-others jury instruction as to the FIP charge and that he was denied his rights to present a defense and to a properly instructed jury when the trial court denied his requested instruction. It found the “requested jury instruction was not consistent with the evidence and material to the theory of prosecution[.]” The court next rejected his contention that his convictions violated his double jeopardy protections, noting it was bound to follow Mitchell. Finally, it rejected his argument that his above-guidelines sentence was disproportionate. “Unlike a ‘garden variety’ case, in this case [defendant] used his child to communicate with another child for the purpose of buying and selling firearms. The [trial] court described [his] conduct as ‘abhorrent.’” Thus, contrary to his claim, “the trial court explained why it believed a departure would result in a more proportionate sentence, and it explained the extent of the departure imposed.” Affirmed.

Sufficiency of the evidence; Self-defense; People v Guajardo; Mistrial; People v Ortiz-Kehoe; Drug profile evidence; Relevance; MRE 401; Conditional relevance; MRE 104(b); Ineffective assistance of counsel; Failure to make a futile objection; Prosecutorial error; People v Dobek; Vouching; Mischaracterizing evidence; Jury composition; Fair cross-section; People v Bryant; Duren v Missouri; Admission of text messages under MRE 103(a)(1); Unfair prejudice; MRE 403; Cumulative error; Sentencing; Scoring of OV 6; Reasonableness & proportionality of a within-guidelines sentence

Finding no errors requiring reversal, the court affirmed defendant’s convictions and sentences. She was convicted of second-degree murder, CCW, and felony-firearm for shooting and killing the victim. She was sentenced to 30 to 60 years for the murder conviction to be served consecutively to a 2-year term for the felony-firearm conviction with credit for 463 days served as well as time served for the CCW conviction. On appeal, the court found the evidence was sufficient for the jury to find she did not act in self-defense. It noted “the jury could have rationally found beyond a reasonable doubt that defendant’s belief that there was an imminent danger to her life or threat of bodily harm was not reasonable and that her use of deadly force was therefore not justifiable self-defense.” It also found she failed to show “that the trial court abused its discretion by denying her motion for a mistrial.” Further, the trial court’s rulings excluding drug profile evidence related to the victim were not erroneous and did not deny her the right to present a defense of self-defense. She abandoned her argument that the trial court erred by sustaining the prosecutor’s objection when defense counsel asked her about a threat, and counsel was not ineffective for failing to make a futile objection. The court also concluded that the prosecution did not improperly vouch for witnesses or mischaracterize testimony. It found she failed to establish prosecutorial error on either ground, and any “improper prejudicial effect could have been cured by a proper” instruction. It next rejected her challenge to the racial composition of the jury pool, finding she “failed to provide any evidence to support . . . two requirements of a prima facie case under the Bryant/Duren framework.” Even accepting her “assertion that only one out of the 90 jury pool members was a ‘person of color,’ [she] has not provided any evidence regarding the racial composition of jury pools in” the county over time. In addition, “text messages introduced into evidence provided insight into” her state of mind about the killing, and were not unfairly prejudicial. Further, there was no cumulative error. Finally, defendant’s “25-point score for OV 6 is consistent with the jury’s verdict convicting her of second-degree murder.” And she failed to meet “her burden of showing that her within-guidelines sentence was unreasonable or disproportionate.”

Dismissal of misdemeanor ordinance violation charges; Probable cause; Territorial jurisdiction & venue; People v Gayheart; People v Houthoofd; Applicability of MCL 762.8

In this interlocutory appeal, the court held that the district court properly found “there was no probable cause to believe defendant violated the” ordinance at issue and was also correct that “it lacked jurisdiction and was the improper venue.” Thus, the court reversed the circuit court’s opinion and order, which had reversed the district court’s orders of dismissal and remanded for reinstatement of the charges. Defendant “operates an animal rescue organization.” The case arose from her efforts to rescue “10 malnourished puppies housed in” a Kentucky animal shelter that were going to be euthanized. She located a couple in plaintiff-Township willing to foster them. They retrieved the puppies from her residence in Pontiac and took them home. The puppies were removed from the home the next day by an officer (P) after an anonymous complaint. While the couple were not charged, defendant was issued 10 citations “for violating Redford Township’s animal cruelty ordinance.” As to the probable cause issue, the court noted the puppies “were only present in Michigan for a brief” time before being seized, and P “was unable to say whether defendant was physically present in Redford Township, how long defendant had custody of the puppies, and when the alleged failure to administer medical care transpired. Rather, the evidence shows that defendant intervened to prevent the euthanasia of the puppies and organized a suitable foster home for [them] before being put up for adoption. Moreover, documents from the Michigan Humane Society reveal that the puppies were healthy and without ticks or fleas upon their intake screening, despite [P] contending otherwise. In light of these circumstances, there is no clear indication as to when, if at all, defendant’s conduct could reasonably be characterized as animal cruelty, and the district court properly determined that there was no probable cause to believe [she] violated the” ordinance. In addition, the “district court also correctly found it lacked jurisdiction and was the improper venue, considering there was no evidence to suggest defendant perpetrated any acts in furtherance of the animal cruelty offense in Redford Township.” The court noted that she “was never physically present in Redford Township during the underlying events, and the prosecution failed to demonstrate otherwise.” The court reinstated the district court’s orders of dismissal.

Sufficient evidence for a receipt & possession of child pornography conviction; 18 USC § 2252A; Jury determination that images found on defendant’s phone were child pornography; United States v Dost (SD CA); Admissibility of the images; Admission of testimony about deleted bookmarks on the phone; Relevance; FRE 401; Whether admitting text messages between defendant & his daughter violated FRE 404(b); Denial of defendant’s motion to dismiss; Facial & as-applied challenges to the statute’s constitutionality

[This appeal was from the ED-MI.] The court held that there was sufficient evidence to support defendant-Mercer-Kinser’s conviction for the receipt and possession of child pornography. It also rejected his evidentiary challenges and his facial and as-applied challenges to the statute (§ 2252A). His conviction here was his second child-pornography crime. While in a halfway house after his first conviction, he sent texts to his preteen daughter that her aunt forwarded to the FBI, and the images giving rise to the charge here were found on his cellphone pursuant to a search warrant. He first argued that there was insufficient evidence to convict him because the district should have excluded the phone images on the basis they did not satisfy the statutory definition of child pornography. He claimed the images “were ‘child erotica’ and merely showed minors in suggestive clothing, ‘akin to a child in a beauty contest.’” Noting the inexhaustive list of factors jurors may use to determine whether images are “lascivious,” the court reviewed the seven images the jury considered, and held that the jury correctly found that each image constituted child pornography. It also held that “whether these images were child pornography was properly reserved for the jury.” It rejected defendant’s argument that the district court should have excluded any reference to the deleted bookmarks on his phone, which led to certain forums. The district court limited the testimony only to the bookmark titles and that the links were on the phone. Defendant argued that someone else at the halfway house could have used his phone. But the court explained that under Rule 401, their presence on his phone made it “more likely” that he received or possessed child pornography, “so it was admissible.” They were probative of his “knowledge and intent.” The court also found no merit to his claim that admitting the text messages between him and his daughter violated FRE 404(b). They were admissible to show “his knowledge and intent to receive and possess child pornography.” Further, it found “no unfair prejudice.” Finally, § 2252A’s knowledge requirement foreclosed his facial challenge to the statute’s constitutionality. His as-applied challenge also failed where the content of his texts “pointed at his interest in child pornography, so it tended to show his knowing receipt and possession of such images[.]” Affirmed.

Employee Retirement Income Security Act (ERISA) fund dispute; Denial of a preliminary injunction based on failure to establish “irreparable harm”; Pendant jurisdiction as to a motion to dismiss; Whether plaintiffs’ properly appealable issue was “inextricably intertwined” with their collateral one; Breach of fiduciary duties under ERISA § 404(a)(1) (29 USC 1104(a)(1))

The court held that the district court did not abuse its discretion by denying plaintiffs’ request for a preliminary injunction against defendants-union-appointed ERISA fund trustees where they did not show that they would suffer “irreparable harm” without it. It also declined to exercise pendant jurisdiction over the district court’s dismissal of their ERISA § 404(a)(1) claims against defendants-employer-appointed trustees. Plaintiffs, including the International Union of Painters and Allied Trades District Council No. 6 (the Union) and three union-appointed trustees, sued defendants in their capacities as trustees of the Southern Ohio Painters Health and Welfare Plan and Trust (the Fund), under the ERISA. The case arose after two union-appointed trustees, “among other things, voted with the employer-appointed trustees to make procedural changes that the union and its other appointed trustees contend have caused fiduciary-duty violations and portend more harm in the future. Chief among the alleged harms, according to the union and its trustees, is the entrenchment of two wayward union trustees that the union would like removed” (defendants-Smith and Clark). Plaintiffs sued under the ERISA seeking to have them removed as trustees. Plaintiffs asserted Fund mismanagement, that all defendants had breached their fiduciary duties under ERISA § 404(a)(1), and that “Smith and Clark engaged in unlawful self-dealing prohibited by ERISA § 406(b)[.]” The district court granted the employer-trustee defendants’ motion to dismiss the complaint against them for failure to state a claim, and denied plaintiffs’ request for a preliminary injunction removing Smith and Clark as trustees, among other things. On appeal, the court reviewed the factors to be considered in deciding whether to grant a preliminary injunction, and concluded plaintiffs failed to show the necessary irreparable harm. They did not show “why monetary damages would not redress their purported harms.” The court declined to exercise pendant jurisdiction over the dismissal order. It determined that plaintiffs’ “properly appealable issue—whether a preliminary injunction should issue—is not ‘inextricably intertwined’ with their collateral one.” Affirmed.

Divorce; Division of the marital estate; Marital property versus separate property; Cunningham v Cunningham; Portions of a party’s pensions earned before the marriage; Double dipping; Loutts v Loutts; Fault; McDougal v McDougal; Distinguishing Sands v Sands; Spousal support; Woodington v Shokoohi; Whether a party should have been awarded permanent support; Judgment of divorce (JOD)

Because a portion of the JOD erroneously held that defendant-ex-wife was entitled to 50% of plaintiff-ex-husband’s entire pensions, the court vacated that part of the JOD and remanded as to this issue. It rejected his other challenges to the property division and defendant’s claim that the trial court abused its discretion in failing to award her permanent spousal support. The parties were married 29 years. Defendant receives Social Security disability benefits. Among other things, the JOD divided plaintiff’s pensions equally and required him to pay defendant $425 in monthly spousal support until plaintiff is 67. He asserted the trial court erred as to his pensions “because (1) his entire police pension was earned before the marriage; (2) a portion of the firefighter pension was earned before the marriage; and (3)” the trial court did not explain why it would be appropriate to invade his separate assets under MCL 552.23(1) or 552.401. The court found that he was correct. It also appeared “the trial court acknowledged at least a portion of the pensions were plaintiff’s separate property.” In an opinion and order it “held: ‘The marital portion of the parties’ pension and retirement accounts shall be divided equally using the date of marriage through the date of filing of the Complaint as the division date.’” Further, another order contained identical language. But in the JOD, it held that defendant was “entitled to premarital portions of the pensions.” As to his other property division challenges, the court rejected plaintiff’s argument that “the property award and the status quo order, taken together, constitute an impermissible ‘double dip’ that results in an inequitable outcome.” And while “defendant’s conduct was far from perfect during the proceedings, ‘fault is an element in the search for an equitable division—it is not a punitive basis for an inequitable division.’” The court concluded the “trial court did not abuse its discretion by failing to award [her] less property on the basis of her conduct during the” proceedings. As to her cross-appeal, it held that the “trial court’s findings of fact were not clearly erroneous and its award of spousal support was just and reasonable under the circumstances. While defendant complains it is likely the parties’ incomes will not be equalized after” spousal support ends, due to a discrepancy in their benefits, it was “clear the trial court balanced [their] incomes and needs so that neither would be impoverished.” Affirmed in part, vacated in part, and remanded.

Sua sponte imposition of sanctions on attorneys; FedRCivP 11(b) & (c)(3); 28 USC § 1927; Jones v Illinois Cent RR Co; Whether appellants-attorneys knew or reasonably should have known that claims were frivolous or that their litigation tactics would needlessly obstruct the litigation; League of Indep Fitness Facilities & Trainers, Inc v Whitmer (Unpub 6th Cir); The fees & costs awarded

The court affirmed the district court’s sua sponte imposition of sanctions under Rule 11 as well as § 1927 against appellants-attorneys, concluding that the complaint was “haphazard” and that the claims lacked any “evidentiary support and were not warranted by existing law.” Appellants represented several clients who sued various state and local officials relating to business closures during the COVID-19 pandemic. In the merits litigation, the district court dismissed the complaint for failure to state a claim, and the court affirmed. A hearing was held and even though Rule 11 (c)(2) sanctions were unavailable, the district court granted sanctions sua sponte under Rule 11(c)(3) where it concluded that appellants had failed to make “‘even a modest effort to conduct legal research before they filed the Complaint or their futile effort to oppose the Motions to Dismiss,’” and that “‘[t]he number and extent of their errors infected the entire case . . . .’” On appeal, the court found that the district court could order sanctions sua sponte under Rule 11 (c)(3) “because, before doing so, it correctly ‘order[ed] . . . counsel “to show cause why conduct specifically described in the order has not violated Rule 11(b).”’” Appellants were given the opportunity to explain why they should not be sanctioned. And it agreed with the district court’s characterization of the complaint as “‘haphazard — at points, incomprehensibly so — and was littered with factual and legal errors.’” The court concluded that appellants “repeatedly made bare, conclusory, and unsupported arguments.” As to § 1927, it determined that “frivolous claims abounded in this case[,]” and that appellants “reasonably should have known based on the legal-research obligations owed to the court by members of the bar, that their claims had no legal basis.” The court agreed with the district court’s observations that its unpublished case, League, “‘was practically a mirror to the facts and legal issues in this case’” and that the court’s “application of the law there to indoor fitness facilities is ‘pertinent to the case here.’” Even though that case was unpublished and not dispositive, appellants’ failure to discuss it, even after defendants called it to their attention, “‘fell short of the obligations owed by a member of the bar’ and reflected the unreasonable multiplication of proceedings whose legal and factual bases were implausible from the start.”

Employee Retirement Income Security Act (ERISA) fund dispute; Denial of a preliminary injunction based on failure to establish “irreparable harm”; Pendant jurisdiction as to a motion to dismiss; Whether plaintiffs’ properly appealable issue was “inextricably intertwined” with their collateral one; Breach of fiduciary duties under ERISA § 404(a)(1) (29 USC 1104(a)(1))

The court held that the district court did not abuse its discretion by denying plaintiffs’ request for a preliminary injunction against defendants-union-appointed ERISA fund trustees where they did not show that they would suffer “irreparable harm” without it. It also declined to exercise pendant jurisdiction over the district court’s dismissal of their ERISA § 404(a)(1) claims against defendants-employer-appointed trustees. Plaintiffs, including the International Union of Painters and Allied Trades District Council No. 6 (the Union) and three union-appointed trustees, sued defendants in their capacities as trustees of the Southern Ohio Painters Health and Welfare Plan and Trust (the Fund), under the ERISA. The case arose after two union-appointed trustees, “among other things, voted with the employer-appointed trustees to make procedural changes that the union and its other appointed trustees contend have caused fiduciary-duty violations and portend more harm in the future. Chief among the alleged harms, according to the union and its trustees, is the entrenchment of two wayward union trustees that the union would like removed” (defendants-Smith and Clark). Plaintiffs sued under the ERISA seeking to have them removed as trustees. Plaintiffs asserted Fund mismanagement, that all defendants had breached their fiduciary duties under ERISA § 404(a)(1), and that “Smith and Clark engaged in unlawful self-dealing prohibited by ERISA § 406(b)[.]” The district court granted the employer-trustee defendants’ motion to dismiss the complaint against them for failure to state a claim, and denied plaintiffs’ request for a preliminary injunction removing Smith and Clark as trustees, among other things. On appeal, the court reviewed the factors to be considered in deciding whether to grant a preliminary injunction, and concluded plaintiffs failed to show the necessary irreparable harm. They did not show “why monetary damages would not redress their purported harms.” The court declined to exercise pendant jurisdiction over the dismissal order. It determined that plaintiffs’ “properly appealable issue—whether a preliminary injunction should issue—is not ‘inextricably intertwined’ with their collateral one.” Affirmed.