Supervised release; Special condition; United States v Sears; No-contact order due to threatening communications; 18 USC § 3583(d)(2); § 3553(a); First Amendment; Free Speech Clause; Petition Clause; Plain error review; United States v Williams; Narrowly drawn conditions; United States v Nixon; United States v Marcum (Unpub 6th Cir)

The court held that the district court’s one-year supervised-release condition banning defendant from contacting any member of Congress was overbroad, but the error was not plain because no binding precedent clearly answered the question. Defendant pled guilty to transmitting a threat in interstate commerce after repeatedly contacting and threatening a Senator and a Congresswoman, including a voicemail threatening to kill the Congresswoman. The district court sentenced him to prison and imposed a one-year supervised-release condition barring contact with “the victims or any members of Congress, directly, indirectly, through” third parties, through social media, or in any way that could be construed as harassing or threatening. On appeal, the court held that the condition burdened defendant’s First Amendment speech and petition rights and was broader than reasonably necessary under § 3583(d)(2) because it barred even lawful contact with Congress about matters such as veteran benefits, policy issues, public reports, or newsletters. The court reasoned that the condition could have been narrowed by limiting the form of contact, limiting the protected persons, barring only threatening or harassing content, or allowing legitimate contact with probation-officer approval. But because defendant did not object below, plain-error review applied, and the court held that the error was not “obvious or clear” given the lack of binding precedent addressing a no-contact condition with Congress after threats to members of Congress. Affirmed.

Choice of law; The Restatement (Second) Conflict of Laws; Contract claims; Chrysler Corp v Skyline Indus Servs, Inc; Noncontractual claims; Sutherland v Kennington Truck Serv, Ltd; Uniform Commercial Code (UCC); Breach of express warranties; Breach of implied warranties; Fraudulent & innocent misrepresentation; The economic loss doctrine; Huron Tool & Eng’g Co v Precision Consulting Servs, Inc; Michigan Consumer Protection Act (MCPA); Nesbitt v American Cmty Mut Ins Co; Unjust enrichment; Morris Pumps v Centerline Piping, Inc

The court held that Ohio law applied to plaintiff’s contractual claims, but Michigan law governed his tort and equitable claims, and that his MCPA claim could proceed despite Ohio law’s application to his contractual claims. It further held that the trial court erred in dismissing his breach of express warranty, MCPA, and unjust enrichment claims, but not in dismissing his breach of implied warranty claim or his fraudulent misrepresentation and innocent misrepresentation claim. The case arose from the sale of a vintage Corvette. The trial court granted defendants summary disposition. On appeal, plaintiff first argued that it erred in agreeing with defendants that Ohio law applied. The court concluded that the trial court correctly applied Ohio law to his contract claims but erred in applying it to analyze his other claims. As to the dismissal of his breach of warranty claims, it agreed with plaintiff the trial court erred in regard to his breach of an express warranty claim. Written promises defendants made both on defendant-company’s website and in an individual defendant’s e-mail about “the restoration and operability of the vehicle formed express warranties” that became a part of the bargain. And because they “were fundamentally incompatible with the written disclaimers in the purchase agreement, the disclaimers” were ineffective. But “the contractual ‘as is’ clause effectively disclaimed all implied warranties, and” thus, there was no error in the dismissal of his breach of implied warranties claim. The court next held that the trial court did not err in ruling that summary disposition of his “fraud claim was warranted under the economic loss doctrine.” As to his MCPA claim, because “plaintiff both resides in and was allegedly injured in this state, he may raise” this claim, and the trial court erred in “adopting defendants’ argument that the application of Ohio law barred” it. Finally, as to the unjust enrichment claim against the individual defendants, who were not parties to the purchase agreement, they did not “adequately make and support entitlement to summary disposition of this claim with documentary evidence.” Affirmed in part, reversed in part, and remanded.

Excited-utterance hearsay exception; MRE 803(2); People v Smith; Effect of elapsed time; People v Gee; Continuing emotional shock; People v Layher; Right to an impartial jury; Extraneous influences; People v Budzyn; Waiver; People v Carter; Ineffective assistance of counsel; Failure to request a mistrial or an evidentiary hearing; People v Armstrong; People v Carbin; Reasonableness & proportionality of departure sentences; People v Steanhouse; Sentencing factors; People v Snow; People v Lampe; OVs 4 & 10; Lack of remorse versus assertions of innocence; People v Dobek; Age at parole eligibility; People v Purdle; People v Kelly

The court held that the trial court did not abuse its discretion by admitting statements the victim’s mother made to a hospital technician as excited utterances. Defendant was convicted of second-degree murder and first-degree child abuse for abusing and killing his girlfriend’s two-year-old daughter, JM. He received respective sentences of 55 to 90 years and 30 to 60 years. The mother was crying and blurting out statements after bringing JM’s lifeless body to the hospital. Although three days separated the assault and her statements, “‘there is no express time limit for excited utterances.’” Her distress reflected the assault, discovering JM’s lifeless body that morning, and defendant’s threats to kill her family during the hospital trip. These events were “a series of related happenings that built on top of each other” and supported an inference that she remained in a continuing state of emotional shock. Defendant waived his challenge to the lack of an evidentiary hearing on two outsiders’ contacts with a juror by accepting the trial court’s inquiry and its conclusion that she remained impartial. Even apart from waiver, he failed to establish a real and substantial possibility of an effect on the verdict. The contacts involved only greetings and a thank-you, not the trial’s substance. His ineffective assistance of counsel claim also failed because he did not identify what further inquiry was needed. The court discerned “nothing more counsel could or should have done” concerning any potential effect on the verdict. Finally, the departure sentences were proportionate. The trial court appropriately considered the Snow factors, the crimes’ severity, factors inadequately considered by OVs 4 and 10, and defendant’s lack of remorse. It relied on “evidence of a lack of remorse,” rather than penalizing his assertions of innocence. His age of 86 at first parole eligibility did not render his term-of-years sentence disproportionate. Affirmed.

Driving while license suspended causing death; MCL 257.904(4); Failure to stop at scene of accident resulting in death; MCL 257.617; Fourth Amendment; Cell phone seizure; Plain-view doctrine; Search warrant; Particularity; People v Hughes; People v Carson; Ineffective assistance of counsel; Crash reconstruction expert; Discovery violation; Demonstrative exhibit; MCR 6.201(A)(6); Sentencing; Fifth Amendment; Refusal to admit guilt; Lack of remorse; OV 5; MCL 777.35; Psychological injury; People v Calloway

The court held that: 1) defendant’s cell phone was lawfully seized under the plain-view doctrine, 2) trial counsel was not ineffective for failing to seek suppression of the phone evidence, 3) the trial court did not abuse its discretion by excluding an undisclosed crash-reconstruction diagram, and 4) resentencing was not required. He was convicted of driving while license suspended causing death and failing to stop after he struck and killed a 13-year-old pedestrian and left the scene. On appeal, the court held that the phone seizure was valid because police were lawfully in the home, the phone was in plain view, and its incriminating nature was immediately apparent where an anonymous tip, defendant’s vehicle, and defendant’s admission that he drove it gave officers probable cause to believe the phone contained evidence. The court also held that counsel was not ineffective for failing to challenge the phone search because, under the then-prevailing Hughes standard, the warrant was reasonably directed at evidence of the crash, and even under Carson, it was “more tailored” than the invalid warrant there. The court next held that the trial court did not abuse its discretion by excluding the expert’s diagram because it was an undisclosed exhibit, and any error was harmless because the expert testified to the diagram’s substance. As to sentencing, the court acknowledged that some of the judge’s comments were “inappropriate” and unsupported by the record, but held that resentencing was not required because the record did not show defendant was penalized for exercising his Fifth Amendment rights, the sentence was within the guidelines, and OV 5 was properly scored based on the victim’s mother’s statement that “every day has been a struggle” for the family. Affirmed.

First-degree home invasion; MCL 750.110a(2); Sufficiency of the evidence; CSC I; MCL 750.520b; Prior acts of domestic violence; MCL 768.27b; MRE 403; People v Berklund; Sentencing; OV 7; MCL 777.37(1)(a); Similarly egregious conduct; OV 8; MCL 777.38; OV 12 (contemporaneous felonious criminal acts); MCL 777.42(1)(d) & (2)(a)(ii); People v Carter; Hearsay at sentencing; Victim-impact statement; Proportionality; Upward departure; Consecutive sentencing; MCL 750.110a(8); MCL 750.520b(3)

The court held that: 1) sufficient evidence supported defendant’s first-degree home-invasion conviction, 2) prior acts of forced sex and domestic violence were admissible under MCL 768.27b, 3) most challenged OV scores were proper, and 4) the upward-departure sentence was proportionate. He was convicted of first-degree home invasion, CSC I, and domestic violence after the victim testified that, after their relationship ended, he entered her home without permission, terrorized her with a baseball bat, hit her, and sexually assaulted her. On appeal, the court held that the evidence supported entry without permission because the victim testified that defendant was not invited inside, she placed his belongings outside, she asked him to return any key, and defendant admitted “he was not invited into the victim’s home” that day. The court next held the prior-acts evidence was admissible because defendant and the victim had a four-year dating relationship, the prior acts were similar, the most recent uncharged act occurred about 10 days before the charged offenses, and the evidence was probative of credibility, propensity, and a common scheme while “‘not unfairly prejudicial.’” As to sentencing, the court held OV 7 was properly scored at 50 points because defendant shoved a baseball bat in the victim’s face, made her count the notches, and described them as marks from people who had “messed” with him, which was “designed to substantially increase” her fear. It held that OV 8 was not an issue because the trial court scored it at zero. It further held that OV 12 should be reduced to 5 points because felonious assault with the bat could not be counted separately from the CSC theories, but unlawful imprisonment after the CSCs supported one contemporaneous felony. Finally, the court held that the above-guidelines CSC I sentence was proportionate because the trial court relied on defendant’s failure to comply with court orders, attempts to contact the victim, lack of remorse, probationary status for an assaultive crime, PPO violation involving the same victim, and the egregious offense conduct. Affirmed but remanded for correction of the SIR.

Motion to vacate convictions & set aside sentences under 28 USC § 2255; Whether the motion was “second or successive”; In re Hill; Challenge to an amended judgment; Magwood v Patterson

Holding that movant-Augustin’s motion challenging his amended judgment (after successfully challenging the original one) was “not ‘second or successive’ under § 2255[,]” the court remanded his motion to the district court. He was convicted of six federal crimes. On a prior second motion under § 2255 challenging his original judgment, the district court vacated one of the convictions, “corrected his sentence accordingly, and issued an amended judgment.” He then moved to vacate the others “and set aside his sentence under § 2255.” The district court transferred the motion to the court as a “second or successive” motion. The court agreed with Augustin that his motion challenged “his amended judgment, not the original judgment, so it is not ‘second or successive.’” The court noted that the “Supreme Court has carved out discrete circumstances to determine when a § 2255 motion filed later in time is not ‘second or successive.’” One is that “when a second motion challenges a new judgment—not the judgment already challenged in a prior § 2255 motion—[it] is not ‘second or successive.’” When the district court granted Augustin’s 2020 motion under § 2255, “it first vacated and set aside the original judgment before correcting [his] sentence to reduce it by 120 months and then issuing an amended judgment to reflect this reduction. And when a judgment is vacated,” the law treats it as though it never occurred. The intervening judgment stands in its place, and “may be challenged as of right under § 2255 without implicating the second or successive bar.” The court noted it has reached this conclusion in several unpublished orders. While “many of those cases involved a full resentencing, we do not see that as a distinguishing feature. Whether the district court corrects the sentence or fully resentences the defendant after vacating the judgment is irrelevant—the previous judgment is void ab initio, and the intervening judgment is new and challengeable in the first instance, regardless of the remedial measure selected.”

Supervised release; Special condition; United States v Sears; No-contact order due to threatening communications; 18 USC § 3583(d)(2); § 3553(a); First Amendment; Free Speech Clause; Petition Clause; Plain error review; United States v Williams; Narrowly drawn conditions; United States v Nixon; United States v Marcum (Unpub 6th Cir)

The court held that the district court’s one-year supervised-release condition banning defendant from contacting any member of Congress was overbroad, but the error was not plain because no binding precedent clearly answered the question. Defendant pled guilty to transmitting a threat in interstate commerce after repeatedly contacting and threatening a Senator and a Congresswoman, including a voicemail threatening to kill the Congresswoman. The district court sentenced him to prison and imposed a one-year supervised-release condition barring contact with “the victims or any members of Congress, directly, indirectly, through” third parties, through social media, or in any way that could be construed as harassing or threatening. On appeal, the court held that the condition burdened defendant’s First Amendment speech and petition rights and was broader than reasonably necessary under § 3583(d)(2) because it barred even lawful contact with Congress about matters such as veteran benefits, policy issues, public reports, or newsletters. The court reasoned that the condition could have been narrowed by limiting the form of contact, limiting the protected persons, barring only threatening or harassing content, or allowing legitimate contact with probation-officer approval. But because defendant did not object below, plain-error review applied, and the court held that the error was not “obvious or clear” given the lack of binding precedent addressing a no-contact condition with Congress after threats to members of Congress. Affirmed.

Choice of law; The Restatement (Second) Conflict of Laws; Contract claims; Chrysler Corp v Skyline Indus Servs, Inc; Noncontractual claims; Sutherland v Kennington Truck Serv, Ltd; Uniform Commercial Code (UCC); Breach of express warranties; Breach of implied warranties; Fraudulent & innocent misrepresentation; The economic loss doctrine; Huron Tool & Eng’g Co v Precision Consulting Servs, Inc; Michigan Consumer Protection Act (MCPA); Nesbitt v American Cmty Mut Ins Co; Unjust enrichment; Morris Pumps v Centerline Piping, Inc

The court held that Ohio law applied to plaintiff’s contractual claims, but Michigan law governed his tort and equitable claims, and that his MCPA claim could proceed despite Ohio law’s application to his contractual claims. It further held that the trial court erred in dismissing his breach of express warranty, MCPA, and unjust enrichment claims, but not in dismissing his breach of implied warranty claim or his fraudulent misrepresentation and innocent misrepresentation claim. The case arose from the sale of a vintage Corvette. The trial court granted defendants summary disposition. On appeal, plaintiff first argued that it erred in agreeing with defendants that Ohio law applied. The court concluded that the trial court correctly applied Ohio law to his contract claims but erred in applying it to analyze his other claims. As to the dismissal of his breach of warranty claims, it agreed with plaintiff the trial court erred in regard to his breach of an express warranty claim. Written promises defendants made both on defendant-company’s website and in an individual defendant’s e-mail about “the restoration and operability of the vehicle formed express warranties” that became a part of the bargain. And because they “were fundamentally incompatible with the written disclaimers in the purchase agreement, the disclaimers” were ineffective. But “the contractual ‘as is’ clause effectively disclaimed all implied warranties, and” thus, there was no error in the dismissal of his breach of implied warranties claim. The court next held that the trial court did not err in ruling that summary disposition of his “fraud claim was warranted under the economic loss doctrine.” As to his MCPA claim, because “plaintiff both resides in and was allegedly injured in this state, he may raise” this claim, and the trial court erred in “adopting defendants’ argument that the application of Ohio law barred” it. Finally, as to the unjust enrichment claim against the individual defendants, who were not parties to the purchase agreement, they did not “adequately make and support entitlement to summary disposition of this claim with documentary evidence.” Affirmed in part, reversed in part, and remanded.