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tag:blogger.com,1999:blog-94195662015-03-23T14:28:14.294-04:00Sixth Circuit BlogSummarizing opinions in selected criminal cases from the Sixth Circuit Court of AppealsKevin Schad appellate division SDOHhttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-25227931538794052772015-03-23T14:28:00.001-04:002015-03-23T14:28:14.314-04:00If the government doesn't like a ruling by the district court, they need to appealAfter his supervised release was revoked, Mr. Burch filed a notice of appeal. He was a few weeks past the 14-day deadline for filing, so he also filed request for an extension of time.* The district court granted the request. The government did not appeal this ruling, or file a cross appeal. Instead, it challenged the order via a motion to dismiss the appeal as untimely, arguing the district court abused its discretion in granting the extension.

There is actually a circuit split on this issue. The Third Circuit rejects the motion to dismiss approach and holds a party must "appeal from the order granting the extension of time to appeal." The Tenth Circuit had a rather convoluted theory that a cross-appeal is only for instances where an appellee wants "more than it obtained by the lower-court judgment" and since the appellee was not seeking alteration of the judgment, they need not file a cross-appeal.

In United States v. Burch, 14-6232, the Sixth Circuit agreed with the Third Circuit and provided some clearer guidance: "litigants dissatisfied with a district court's judgment or order normally must file an appeal challenging the decision." "[A] party dissatisfied with a district court's order is well-served to file [an appeal], whether labeled an appeal or cross-appeal, within the relevant timelines." There is nothing about a time-extension order that suggests any different rule should apply to them.

The Sixth went on to describe instances where a motion to dismiss would be appropriate: where the court lacked jurisdiction; to enforce a valid appeal waiver in a plea agreement; or when a criminal defendant filed an untimely appeal without district court authorization.**

The government's motion to dismiss the appeal was denied. It appears Mr. Burch has until his release on April 28, 2015, to appeal his revocation and/or sentence, as he received jail time with no supervision to follow.

* Practice tip #1: if you must file your notice of appeal late, for whatever reason, file the notice AND a request for an extension of time. If you only file the notice, the Sixth Circuit will docket the case and then tell you in a rather public way that you need to move the district court to allow you to file out of time. Since you will have to do it anyway, go ahead and do it in the first place.

** Practice tip #2: When a defendant files a pro se notice of appeal, the Sixth Circuit will docket the case and notify trial counsel. DO NOT IGNORE THEIR MESSAGE. Even court-appointed counsel are considered appeal counsel unless and until they are relieved. Respond to the message. Put your appearance in. If the defendant has filed out of time, the Sixth will issue a Rule to Show Cause, basically asking trial counsel to figure out what's going on, get the district court's permission to file late, and get in touch with the client. When in doubt, do not do nothing. Laura Davis, AFPD, FDSEThttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-53197767419176161282015-03-20T18:03:00.004-04:002015-03-23T09:09:16.446-04:00Arson, Duplicity, and the MailIn United States v. Singer, Mr. Singer was convicted of involvement in a fraudulent scheme to buy properties cheaply, obtain insurance coverage, and burn down those properties for insurance proceeds. The government charged Mr. Singer with mail fraud relating to the scheme, as well as individual use of fire to commit mail fraud counts for each property. In response to Mr. Singer's challenge, the Sixth Circuit held that a mail fraud count encompassing multiple acts of a conspiracy is not duplicitous. Further, even if it were duplicitous, a defendant is not prejudiced by avoiding the imposition of additional counts.

The Singer Court also addressed the statute of limitations for using fire to commit mail fraud. Mr. Singer argued that the statute of limitations began to run from the time of the fire. But the Sixth Circuit interpreted 18 U.S.C. 844(h) to be committed only once "a fire or explosive is used to commit another felony - in this case, mail fraud." As a result, the clock began to run at the time of the mailings, not the fires themselves.

Additionally, Mr. Singer argued that because his convictions under 884(h) arose out of the same indictment, they could not be "stacked" consecutively. In fact, the Singer court acknowledged "the government's decision to charge each fire as a separate 844(h) offense is arguably in conflict with its theory that the fires all were part of the same underlying scheme." Nonetheless, the Sixth Circuit found no plain error. The decision also briefly concluded Mr. Singer's severance argument was waived.Claire Curtis, Research + Writing Attorney, FPDNDOHhttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-68442585946363787322015-02-19T23:58:00.000-05:002015-02-20T23:56:32.727-05:00Welcome To Your New Home. The Previous Occupant Committed Crime--We're Here to Search!Police officers may use evidence garnered from their investigation of a previous occupant to search a home even after a new occupant takes possession. In United States v. Burney, the police spent eight months uncovering substantial evidence that two individuals (Ross and Brown-Jennings) were using a house (the Litchfield property) as part of a drug conspiracy. The police applied for and received a search warrant to search the Litchfield property.

<o:p></o:p>

But weeks before the search, Burney moved into the Litchfield property. The police had no evidence that Burney was involved in the drug conspiracy--though they noted in the affidavit supporting the warrant application that Burney had five previous convictions for possession of crack (and that he remained on parole). Moreover, (as Judge White noted in dissent), the affidavit was ambiguous as to whether the police had observed Ross engage in any drug activity at the Litchfield property for months before Burney moved in. Hence, Burney argued that the police lacked probable cause to believe that evidence of crime would be found at the residence (and that any indication that evidence would have been found before Burney took up residence was stale).<o:p></o:p>

The Sixth Circuit rejected Burney's arguments: "Ross's and Brown-Jennings' many connections to the property, together with its having sat vacant for months and only recently having been occupied by a man with multiple drug convictions, made it reasonable to conclude that the property was one of Ross's stash houses, so that there would be evidence of drug trafficking within it. This is so regardless of whether police had any evidence tying Burney to Ross." Op. at 6. The majority relied: (1) on the police having seen Ross's vehicle (though not Ross) at the Litchfield property at some point closer in time to the search; (2) on its finding that the Ross conspiracy was a large-scale drug trafficking and money laundering operation; (3) on its assessment that Burney had a propensity for joining large scale drug conspiracies because he had multiple convictions for possession of crack; and (4) on the fact that Brown-Jennings continued to hold title to the property and receive utility bills for it.<o:p></o:p>

Noting that probable cause is "not a high bar" and that a magistrate's probable cause assessment should be afforded "great deference," the Sixth Circuit affirmed Burney's conviction. Op. at 5 (citations omitted). In so doing, the Court illuminated how much deference it will afford police when a seemingly material change occurs (i.e, a change of occupants at a residence) before police apply for and execute a search warrant. In addition, the decision demonstrates a significant divide within the panel: Judge White, in dissent, found that the good faith exception could not rescue the search, but the majority found no reason to address the Leon exception.<o:p></o:p>

The case discussed above is United States v. Burney, 14-3526 (6th Cir. February 19, 2015), and may be found here.<o:p></o:p>
Robert Dietrickhttps://email@example.com:blogger.com,1999:blog-9419566.post-48426274147797014552015-02-18T14:12:00.002-05:002015-02-18T14:23:05.471-05:00Is leniency "substantively unreasonable"?The long, painful journey of United States v. Robinson achieved another milestone today, having traveled from district court to the Sixth Circuit to the Supreme Court to the district court and now back to the Sixth Circuit. (Phew.) The result is an opinion that politely suggests that district courts should never impose non-custodial sentences for certain defendants no matter what those defendants' personal characteristics are (at least not child-porn defendants), and should instead put the greatest emphasis on the severity of the crime (as designated by Congress and our collective indignation at this particular offense).

Factually, the district court had sentenced Mr. Robinson to one day of imprisonment with five years of supervised release. The Sixth Circuit found that to be substantively unreasonable in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012). On remand, the defendant put forth considerable post-conviction mitigation evidence and new psychological evidence showing that he suffered from severe mental illness when he committed his offense. The district court resentenced him to one day of imprisonment, but increased his supervised release period to ten years. The Sixth Circuit not only disagreed but was "dismayed" at the resentencing. It vacated the sentence and reassigned the case to a new judge with tacit orders to put the defendant in prison.

For the defender community, there is more weeping and gnashing of teeth to be done over this opinion, but for now the opinion certainly raises a few unanswerable questions:

1. What the heck is substantive unreasonableness? The Sixth Circuit is one of the few that actually rules based on substantive unreasonableness, but statements like the following sure make it seem a lot like procedural unreasonableness: "The deficiency of the district court's analysis of potential unwarranted sentencing disparities on a national level contributed to the imposition of a substantively unreasonable sentence."

2. Does a "serious offense" always mean that a custodial sentence is required? The court takes pains to remind us that possession of child pornography is a "serious offense," which is no doubt true. But so are many other crimes that result in non-custodial sentences on occasion. Does this mean bank robbery could never be punished by a non-custodial sentence? Drug trafficking? Fraud? The court puts great weight on the 10-year maximum sentence, but that is hardly uncommon in the federal criminal code.

3. If a court ever wants to impose a non-custodial sentence, how could it address the general-deterrence element of Section 3553(a)? The district court here made substantial findings regarding the defendant's need for specific deterrence, then noted that this case had not generated any publicity that would affect the general-deterrence calculus. That was not enough, the opinion suggests, because general deterrence is "a goal that this Court has found particularly salient in the child pornography context."

4. Does the court intend to move the goalposts on "seriousness" by claiming that possession of 7,000 images is a "staggering number"? It would be interesting to test this number empirically, but an informal poll suggests that it is more "about average" than "staggering."

5. Would a significantly above-guidelines sentence face the same scrutiny regarding sentencing disparity? The court notes that 96.6 percent of child-pornography defendants face time. Does that mean that an above-guidelines sentence that only occurs 3.4% of the time is necessarily substantively unreasonable?

6. What weight should courts afford post-sentencing mitigation evidence, as compared to the seriousness of the offense? The court here simply states that "[a]lthough the mitigating evidence appears significant, its presence in the record cannot cure the defects in the district court's analysis...." Disregarding the fact that this still sounds like procedural unreasonableness, is the court suggesting that such mitigating evidence could never outweigh the general seriousness of an offense? (Somewhat remarkably, even the government agreed that the mitigating evidence was powerful enough that the defendant should be sentenced to only a below-guidelines three-year sentence. Would that be severe enough for the court? In other words, this opinion emerges from a dispute over an incredibly small sentencing range of between zero and three years.)

The opinion's reference to and reliance on the Sixth Circuit's prior Bistline opinion strongly suggests that this opinion, like Bistline, will be finding its way in and out of the courts for some time to come. Godspeed, Robinson. anbrandonhttp://email@example.com:blogger.com,1999:blog-9419566.post-14198476092310133542015-02-09T12:12:00.001-05:002015-02-09T12:12:41.891-05:00Limiting 404(b) evidence, one unpublished opinion at a timeOne could be forgiven for missing the defense win in United States v. Richardson, buried as it is in the bottom of Friday's unpublished cases. But in it, Judge Clay wages his quiet campaign against the government's ever-expanding use of 404(b) evidence to prove "motive" or "intent" in drug cases.

The opinion addresses the familiar case in which the government seeks to use a defendant's prior drug conviction to prove "intent" to commit a similar crime: here, drug-trafficking convictions that were 13 years old at the time of the defendant's new drug-trafficking trial. The appeals court vacated the conviction and sentence. The problem, as Judge Clay correctly points out, is that the government never actually presented any evidence or argument regarding exactly how these prior convictions prove intent to act 13 years later, aside from a post-hoc series of inferences that the government suggested on appeal. Absent any such proof, the evidence veered dangerously into the territory of impermissible propensity evidence, especially in light of other, more convicing proof the government had available to it. (Which may speak to Mr. Richardson's chances at his retrial.)

A few notes:
1. The opinion deftly side-steps a circuit-split regarding the standard of review.
2. In a dissent, Judge White agrees that the district court erred in admitting the 404(b) evidence but believes the error was harmless.
3. This is one of those unpublished opinions that makes the reader wonder exactly why it is unpublished.
4. Unmentioned in the opinion is the fact that this was the product of the characteristically fantastic advocacy of the Vanderbilt Appellate Litigation Clinic.
anbrandonhttp://email@example.com:blogger.com,1999:blog-9419566.post-30388331318454109222015-01-06T09:40:00.001-05:002015-01-06T09:40:03.236-05:00Sixth rules 922(g)(4) unconstitutionalJudges Boggs, Siler, and Gibbons all agree, for varying reasons, that 18 U.S.C. § 922(g)(4) is unconstitutional. Section (g)(4) is the one that prohibits people who have a prior mental health commitment from possessing firearms. The case is Tyler v. Hillsdale County Sheriff's Department, No. 13-1876. You can read it here. Lyle Denniston over at SCOTUSblog is far more articulate than I and discusses the case here.

While we do not see 922(g)(4) much in practice, the "strict scrutiny" test the Sixth applied to the statute is important and could be used in other gun-related settings.Laura Davis, AFPD, FDSEThttp://email@example.com:blogger.com,1999:blog-9419566.post-23871600501685067632015-01-05T07:38:00.000-05:002015-01-05T07:38:15.564-05:00New Child Porn decision with varying opinionsOn Friday, January 2, 2015, the court released its first decision of the new year, United States v. Walters. Although the case on one hand is uninteresting (the Court upheld the 151 month sentence and all imposed Guidelines enhancements), it is worth reviewing to show how the individual judges are struggling with CP sentences in general.

Judge Merritt wrote a strong dissent in the case, arguing that the 151 month sentence was "out of proportion" to the offense and violated the Eighth Amendment. Judge Merritt cited to the Sentencing Commission and the DOJ's stances that sentences for these type of cases were outmoded, and noted that "[i]t seems obvious that nothing is going to soon change the injustices such as this one that are going on every day in the federal courts—unless the courts themselves find a solution that at least ameliorates the problem for the time being."

Judge White concurred in the decision to uphold the sentence imposed, but wrote a separate concurring opinion to voice her concerns. In her opinion, she stated "The appropriate judicial response in situations such as this one is not for appellate courts to reduce Guidelines sentences as a matter of course, but rather, for sentencing judges to recognize that Guidelines based on the Protect Act should be carefully scrutinized. Unfortunately, as the dissent observes, Walters' counsel did not bring to the district court's attention, or argue on appeal, that the Commission considers the sentence recommended here to be excessive. In the context of a sentencing proceeding in a child pornography case, competent counsel should be expected to bring to the district court's attention that the Guidelines do not, as in other contexts, reflect the presumed superior expertise and breadth of information of the Commission, and in fact are contrary to the Commission's considered judgment." Thus, according to Judge White at least, it may be ineffective assistance for defense counsel to not challenge a CP Guidelines ranges as excessive.

CP sentencings are becoming more and more difficult for district court judges. It seems that the Sixth Circuit is divided into numerous camps on what is appropriate. The spectrum is varied, and leaves district court's squarely in the middle to figure out what is appropriate.

Kevin Schad appellate division SDOHhttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-41845871451525932262014-10-24T10:00:00.001-04:002014-10-24T10:00:56.219-04:00On issue preservation and non-guideline sentencesIn United States v. Sherer, et. al (found here), a bank robbery case, the Sixth Circuit recently reminded folks how to properly preserve several issues, and also more extensively addressed variances based on mathematical accidents within the guidelines.

First, issue preservation:

- A motion to dismiss under the Speedy Trial Act cannot be filed until the Act has been filed. That is, the government has 70 days, post-indictment, to bring a defendant to trial. The motion cannot be filed until at least day 71. This is partly because filing the motion stops the speedy trial clock and it does not start again until after the court has ruled on the motion.

- A sufficiency of the evidence claim will be reviewed for plain error unless counsel moves for a judgment of acquittal at the end of trial. This feels odd, especially if you have not put on a defense. But you must move for it twice: at the end of the government's evidence, and then again at the close of the case. To win on plain error review, the "record must be devoid of evidence pointing to guilt."

- Admissibility of evidence arguments will be reviewed for plain error unless counsel objects to its admission at trial. To win on plain error review, a defendant must "show that the trial would have turned out differently but for the" objectionable evidence.

Variances based on mathematical accidents within the guidelines:

Mr. Sherer had robbed banks before the instant offense. A little over a decade before, he had robbed five banks and pled guilty to robbing two of them. Because he was sentenced on those pleas on the same day, the two sentences merged. Because they merged, they were counted as one offense rather than two, which would have qualified Mr. Sherer for Career Offender status. The district court used the Career Offender guideline anyway, noting Mr. Sherer had escaped the impact of the Career Offender range "simply by... accident or happenstance." The district court also noted Mr. Sherer had done this new robbery eight months after serving 10 years in jail for the last bank robberies and was at extremely high risk to recidivate. The Sixth Circuit discussed other guideline cliffs - for instance, being one dollar above a loss cutoff - and noted courts were free to recognize those cliffs and adjust sentences accordingly, provided they adequately explained their decision.
Laura Davis, AFPD, FDSEThttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-90102690669657044712014-10-14T09:52:00.000-04:002014-10-14T09:52:00.247-04:00Court limits "use" a firearm in connection with another felony In United States v. Norris, the Court remanded for resentencing with instructions to eliminate a enhancement for "using" a firearm in connection with another felony offense. In Norris, the defendant plead guilty to selling a firearm to a prohibited person. At some point after the sale, he called the buyer and told them to get rid of the firearm because it was evidence in a murder investigation. But the buyer no longer had the firearm.

The Court found that this conduct could not meet the definition of "use". The Court noted that Norris did not have authority or control over the buyer, and that the buyer did not possess the firearm; therefore, Norris's advice to the buyer could not be considered use. Congrats to AFPD Laura Davis!!!Kevin Schad appellate division SDOHhttp://email@example.com:blogger.com,1999:blog-9419566.post-13954507811678941952014-09-23T10:48:00.001-04:002014-09-23T10:48:56.477-04:00The Guidelines mean what they say and say what they mean (and, how to preserve your issue)Yesterday, in United States v. Snelling, No. 12-4288, the Sixth Circuit affirmed USSG § 2B1.1(B)(1) and its commentary actually mean what is written.

The case concerned a Ponzi scheme that took in almost $9 million, but also paid out about $3.5 million. The district court set the loss for guidelines purposes at over $7 million, which raised Mr. Snelling's offense level by 20 points. It and the government reasoned the $3.5 million in returned funds were part of keeping the Ponzi scheme going and so the defendant should not benefit. Mr. Snelling argued the loss should be under $7 million, taking into consideration the funds returned, which would raise his guidelines 19 points. The district court calculated his guideline range as 121 to 151 months. Mr. Snelling's calculation put him at 97 to 121 months.

The Sixth Circuit agreed with Mr. Snelling. It noted Application Note 3(E) to § 2B1.1 stated loss shall be reduced by money returned prior to discovery of the crime. It further noted Application Note 3(F)(iv)"specifically states that "when calculating the loss figure in a Ponzi scheme, the 'loss shall not be reduced by the money or the value of the property transferred to any individual investor in the scheme in excess of that investor's principal investment.'" For example, if an investor put in $100 and received $80 back in "dividend payments" (or what have you), the $100 loss would be reduced by the $80 returned. However, if the investor put in $100 and received $130 back, the loss would only be reduced by $100.

This case is also interesting because it details how Mr. Snelling preserved the issue for appeal. The disagreement is noted in the plea agreement. The Presentence Report noted the disagreement. Mr. Snelling filed an objection to the PSR's guidelines calculation. At sentencing, Mr. Snelling further argued his objection.Laura Davis, AFPD, FDSEThttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-2751298066968033652014-09-09T10:36:00.002-04:002014-11-03T15:16:08.153-05:00Warning: Santobello works both waysComing soon to a Government's Brief on Appeal near you....

The Third Circuit just handed appellate AUSAs a nifty new tool to combat pesky defendants. In a nutshell, United States v. Erwin, 3rd Cir. Case No. 13-3407 (Aug. 26, 2014), says that if a defendant signs a Rule 11 plea agreement in which he agrees not to appeal, but then appeals anyway (at least without a decent reason for doing so), he has breached the agreement and relieved the government of its own obligations, including its agreement to give the defendant consideration for cooperating. The penalty for the breach may not just be a dismissal of the appeal; it could be a remand for a harsher sentence.

From Julie McGrain at our sister blog in the Third Circuit:

Defendant Erwin plead guilty, pursuant to a cooperating plea agreement, to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. His plea agreement included a waiver of right to appeal his sentence if it was within or below the advisory Guidelines range resulting from a total offense level 39. In exchange for Erwin's plea, the government agreed not to bring further criminal charges against Erwin in connection with the criminal conspiracy, and it also agreed to seek a downward departure under U.S.S.G. §5K1.1.

At sentencing, the district court agreed with the parties and the PSR that Erwin's total offense level was 39. With an offense level 39 and Criminal History Category I, Erwin's initial Guidelines range was 262 to 327 months. This range was, however, capped at 240 months due to the statutory maximum for the offense of conviction. The government moved for a five-level downward departure under §5K1.1, requesting that the court depart from offense level 39 to offense level 34, as opposed to departing from the statutory maximum of 240 months, and sentence Erwin within the resulting range (151 to 188 months). Erwin did not object. The court granted the government's motion and sentenced Erwin to 188 months imprisonment.

Erwin appealed, arguing that the district court's use of offense level 39 as its starting point for the downward departure was error because, when combined with criminal history category I, offense level 39 yielded an advisory Guidelines range above the statutory maximum. The government did not cross-appeal, but argued in response to Erwin's appeal that Erwin's sentence should be vacated and remanded for de novo resentencing where, in light of Erwin's breach of the appellate waiver, the government would seek a "modest" increase in Erwin's sentence.

The Third Circuit began by considering the nature and scope of Erwin's appellate waiver. It concluded that Erwin's appeal was within the scope of the waiver, the waiver was knowingly and voluntarily executed, and Erwin failed to raise any meritorious grounds for circumventing the waiver. The Court noted that its ordinary procedure in such a situation would be to enforce the waiver by dismissing the defendant's appeal, thereby affirming the defendant's sentence. Here, however, the government asked the Court to vacate Erwin's sentence so that it could pursue the remedies specified in the breach provision of the plea agreement, i.e., bring additional criminal charges or withdraw its §5K1.1. motion. The Court found that Erwin's decision to appeal despite waiving that right in his plea agreement resulted in a clear breach of the terms of the agreement. The Court further concluded that the appropriate remedy for Erwin's post-sentencing breach of the plea agreement was specific performance, i.e., de novo resentencing with the government relieved of its obligation to seek a downward departure.

In rendering its opinion, the Third Circuit also decided two procedural questions of first impression. First, the Court concluded that cross-appeal rule did not apply and consequently did not bar the government from seeking de novo resentencing. Second, the Court named its source of authority to grant a de novo resentencing in this case as 28 U.S.C. § 2106, which permits the Court to modify, vacate, set aside, or reverse any judgment lawfully brought before it for review and remand the cause for further proceedings.

For Scott Greenfield's colorful (and critical -- of everyone involved) commentary, see here.

Bradley R. Hall, E.D. email@example.com:blogger.com,1999:blog-9419566.post-87575691253349904762014-08-12T16:14:00.000-04:002014-08-13T14:00:14.242-04:00Federal Prosecutors in Lexington, Kentucky: "Oops"There is a lot to like about United States v. Noble, No. 13-6056, though I doubt many federal prosecutors share my excitement. Particularly federal prosecutors in Lexington, Kentucky.

Courtney Noble was a passenger in a Chevrolet Tahoe driven by Marcus Adkins. Law enforcement suspected the vehicle to be associated with a drug trafficking ring and conducted a traffic stop. Noble was "very nervous."

Adkins consented to a search of the vehicle. In order to conduct the search, police "removed Noble from the Tahoe and frisked him for weapons on the basis of Noble's nervousness, the fact that the Tahoe was suspected in a DEA investigation, and that [an officer's] training told him that drug traffickers are often armed." Police discovered drugs, paraphernalia, and a firearm on Noble's person. Both men were charged with conspiracy, along with Dena Brooks, who was later found in a hotel room associated with the conspiracy.

Noble moved to suppress the evidence found during the frisk, and Adkins and Brooks joined the motion. The district court denied the motion to suppress, and all three defendants appealed.

The Sixth Circuit found that the search of Noble was unreasonable under the Fourth Amendment and vacated Noble's conviction.

But that left the court with "an awkward problem": neither Adkins nor Brooks can "explain[] how the frisk of Noble impacts their Fourth Amendment rights." And that is because they obviously lack Fourth Amendment "standing" to object to the unreasonable search of Noble. Their motions to suppress had no merit.

But it was their lucky day.

At both the district court and in its brief on appeal, prosecutors neglected to argue that Adkins and Brooks lacked standing to object to the search of Noble's person. Thus, in a letter to the court after oral argument, the appellate chief of their office ("and to its credit") acknowledged that the government had "waived" the issue for appeal.

Facing an open question in the Sixth Circuit and a split of authority elsewhere, the court "join[ed] the majority of circuits to have considered this issue" and held that "the government may forfeit or waive its objection" to Fourth Amendment standing. The court explained,

we would allow the government to raise an objection to a defendant's Fourth Amendment standing for the first time on appeal, provided that the government can show that the defendant plainly lacked standing and that our failure to recognize it would "seriously affect[] the fairness, integrity or public reputation of judicial proceedings." However, if the government fails to raise the issue in its opening brief on appeal, then the objection is waived.
Here, because the government missed the issue of Fourth Amendment standing not only at the district court but also in the opening brief on appeal, both Adkins and Brooks got a windfall. Their convictions were vacated just like Noble's.

Judge Moore wrote the opinion and Judge Tarnow joined. Judge Kethledge dissented from the Fourth Amendment analysis alone, finding the "question . . . close" but ultimately concluding that the police were reasonable to ensure that Noble was not armed during the search of the vehicle.

Bradley R. Hall, E.D. firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-77458455297198418752014-08-12T15:10:00.001-04:002014-08-12T15:12:55.471-04:00Alleyne Error Not HarmlessIn United States v. Hackett, No. 12-2248, the Sixth Circuit rejected the government's argument that a violation of Alleyne v. United States, 133 S.Ct. 2151 (2013), was harmless because the defendant admitted the facts giving rise to the greater mandatory minimum.

The defendant was charged in an indictment with using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), a crime carrying a five-year mandatory minimum sentence. At trial, he admitted to firing a handgun but disputed his motive for doing so. He was convicted. Instead of sentencing him to the five-year mandatory minimum charged in the indictment, the district court sentenced him under Section 924(c)(1)(A)(iii), which raises the mandatory minimum to ten years "if the firearm is discharged."

There is no serious dispute that the sentence violated Alleyne, since the defendant's mandatory minimum sentence was increased on the basis of facts not found by the jury. But the government nevertheless maintained that the error was harmless, given the defendant's admission to discharging the firearm. Put differently, there is no question that the jury would have convicted the defendant of the ten-year offense if it had been given the option. The problem with this argument, the court found, is that it would allow for a constructive amendment to the indictment, which can never be harmless.Bradley R. Hall, E.D. firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-44496442142665894712014-08-12T14:52:00.001-04:002014-08-13T10:51:10.306-04:00Household Chores ≠ Forced LaborUnited States v. Toviave, No. 13-1441, is a case about prosecutorial discretion -- and overreach. Toviave appears to be an unsavory character, but his conduct didn't actually violate the federal statute under which he was charged. Happily, Judges Rogers (writing), Sutton, and Suhrheinrich do not trust "the discretion of prosecutors" to protect law abiding citizens from similarly misplaced prosecutions.

The essential facts are as follows:

Toviave brought four young relatives from Togo to live with him in Michigan. After they arrived, Toviave made the children cook, clean, and do the laundry. He also occasionally made the children babysit for his girlfriend and relatives. Toviave would beat the children if they misbehaved or failed to follow one of Toviave's many rules.
Federal prosecutors in Detroit charged Toviave with visa fraud, mail fraud, and forced labor in violation of 18 U.S.C. § 1589. Toviave pled guilty to the fraud charges but went to trial on the forced labor charges and was convicted.

While calling the defendant's conduct "deplorable" and "reprehensible," the Sixth Circuit found that prosecutors were wrong to make a federal case out of what appeared to be nothing more than child abuse --"a state crime, but not a federal crime."

The court explained,

The government's interpretation of 18 U.S.C. § 1589 would make a federal crime of the exercise of these innocuous, widely accepted parental rights. Take a hypothetical parent who requires his child to take out the garbage, make his bed, and mow the lawn. The child is quarrelsome and occasionally refuses to do his chores. In response, the child's parent sternly warns the child, and if the child still refuses, spanks him. The child then goes about doing his chores. There is no principled way to distinguish between that sort of hypothetical labor and what Toviave made the children do in this case.
The court drew heavily from Bond v. United States, 134 S. Ct. 2077 (2014), in which the Supreme Court "recently reemphasized that we should be cautious in inferring Congressional intent to criminalize activity traditionally regulated by the states." In Bond, the government argued that the defendant's conduct -- which amounted to "garden-variety assault" between spouses, albeit with a chemical weapon -- fell within the "very broad scope of the chemical weapon statute." But due to the "deeply serious consequences of adopting such a boundless reading" of the statute, the Supreme Court disagreed and vacated the conviction. The Sixth Circuit found "[t]he reasoning of the Supreme Court appears to apply directly to Toviave's case."Bradley R. Hall, E.D. email@example.com:blogger.com,1999:blog-9419566.post-59720270410274885962014-08-01T07:41:00.001-04:002014-08-01T07:43:55.429-04:00One day sentence reversedDefendant Musgrave was a CPA who became involved in a tire recycling company. Unfortunately for Musgrave, he picked the wrong partner, and as a result, the company went under. Musgrave lost a significant amount of cash, and so brought in the FBI, the SEC and Australian authorities to investigate his partner. As a result, Musgrave himself was indicated on ten counts, including bank fraud and wire fraud. His partner was also indicted, pled guilty, and received probation. Musgrave went to trial and was convicted.

At sentencing, the court found the advisory Guidelines to be 57 to 71 months incarceration, but imposed a sentence of one day incarceration, citing his lack of criminal history, his own losses in the company, his decades of service to the community, the fact that the Guidelines overstated his culpability, and the restitution that would be imposed. The Sixth Circuit reversed this sentence, finding that the district court considered impermissible factors in imposing the sentence, such as the civil losses incurred, the loss of his CPA license, and the fact that his felony conviction would be a part of his record. The Court indicated that because these matters were not "consequences of his sentence" they could not be considered. Further, the Court indicated that the district court failed to give adequate consideration to general deterrence, and that incarceration is favored for the type of offenses for which Musgrave was convicted. The full opinion is here.Kevin Schad appellate division SDOHhttp://firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-9356727147451734902014-06-27T11:27:00.001-04:002014-06-27T11:27:26.669-04:00Citing to Presentence ReportThe Eastern District of Tennessee has started filing a sealed copy of the Presentence Report in ECF. This means there is a docket entry for the document, and attorneys are sent a filed copy with the PageID#. The copy that goes to the Sixth Circuit does not always have the PageID# on it. Either check with your case manager, or continue citing to the PSR as you did prior to it appearing in the electronic record.Laura Davis, AFPD, FDSEThttp://email@example.com:blogger.com,1999:blog-9419566.post-91311525875562519572014-04-24T09:08:00.002-04:002014-04-24T09:08:36.057-04:00False distress signal = $489,000Not much happening this week (so far) in the Sixth, so thought I would share this nugget with you. Yesterday, the Court upheld the sentence in the case of United States v. Kumar. 13-3970

Kumar was a 19 year old student at Bowling Green University who was studying aviation technology. He dreamed of becoming a pilot for the Coast Guard after his graduation. As part of his training, he was ordered to fly from an airport in Bowling Green, Ohio to Cleveland in back. On the way back, flying over Lake Erie, he thought he saw a flare from a boat, and radioed it in. He was then instructed by the airport to fly in for a closer look - he did not see a boat or anything, but he was fearful that he would be accused of "sounding stupid", so he told the airport that he saw a 25 foot boat with persons in life vests, with a strobe light activated.

This understandably prompted a response by more than the cavalry. The United States Coast Guard and the Canadian Armed Forces spent the next 24 hours searching for the fictitious boat. A month after the search, Kumar admitted he had lied. The United States subsequently prosecuted him for a Class D felony "making a false distress call".

Kumar of course plead guilty. But his punishment was far from light. He was sentenced to 3 months incarceration, and 3 years supervised release. But possibly even more importantly, Kumar was ordered to pay restitution to the United States and Canada for all of their expenses for the entire operation - $489,007.70

On appeal, Kumar challenged the imposition of the entire cost of the vessels, manpower, etc. for the time period. He also challenged the court's authority to impose restitution for a foreign entity (Canadian Armed Forces). The Sixth Circuit affirmed, finding that "all costs incurred as a result", as outlined in the statute, was broad enough to include all expenses and costs.

The precedential value of this decision is minimal, as there will not be too many cases handled for this type of offense. But it is worth noting the facts - a 19 year old kid panicked, made a mistake, and will now pay the rest of his life for it. He has what amounts to a $500,000 house payment, he has a felony conviction, and he has served 3 months in prison - all because he did not want to seem stupid.Kevin Schad appellate division SDOHhttp://email@example.com:blogger.com,1999:blog-9419566.post-3438971681023260552014-04-22T12:03:00.001-04:002014-04-22T12:03:47.692-04:00April 14 through 18, a busy week for the Sixth CircuitCompared to most weeks, the 6th Circuit was very active this past week. There were five published cases, which appear to be noteworthy. I will provide a brief synopsis of all five.

1) Teresa Prewett v. Stanley Weems, Case No. 12-6489.

http://www.ca6.uscourts.gov/opinions.pdf/14a0072p-06.pdf

The defendant pled guilty to child pornography production offenses, and later the victim filed a civil against him for damages pursuant to 18 USC 2255(a). The allegation was that Weems produced 7 videos, and alleged each video entitled the victim to $150,000 of compensation. The question before the court was whether the victim could seek $150,000 for each individual video (totaling over $1 million), or for the entire criminal offense (a total of $150,000). Because the victim did not bring separate suits for each individual video and the suit arose out of a single "unbroken chain of events," the victim was only entitled to one single cause of action for all 7 videos, and the total amount recoverable was $150,000.

2) United States v. Barbour, Case No. 13-5653.

http://www.ca6.uscourts.gov/opinions.pdf/14a0077p-06.pdf

This case concerned the Armed Career Criminal Act and how to define predicate offenses of crimes of violence. At issue was the defendant's prior state conviction of two aggravated robberies. At the state level, both aggravated robberies were indicted in a single count. Ten years later, he was indicted for a federal firearms offense. The federal court found the two aggravated robberies each counted as a single predicate crime of violence for the purposes of the ACCA, resulting a 15 year mandatory minimum sentence under 18 USC 924(e). On appeal, the defendant challenged this, arguing that the robberies could not be separated. The 6th Circuit agreed with the defendant and vacated the sentence.

The opinion provides a good overview of the 6th Circuit's stance on how to define separate offenses in the context of 924(e). Offenses can be separately counted if: 1) it is possible to discern the point at which the first offense is completed, and the subsequent point at
which the second offense begins, 2) it would have been possible for the offender to cease his criminal conduct after the first offense, and withdraw without committing the second offense, or 3) the offenses are committed in different residences or business locations. Page 5 of opinion. The court also made clear that the burden to prove whether the offenses were separate was on the government. Concluding the evidence before the district court was not clear as to when one robbery ended and the other began, the court vacated the sentence.

3) Gunner v. Welch, No. 13-3996

http://www.ca6.uscourts.gov/opinions.pdf/14a0076p-06.pdf

This was an appeal of the denial of a 2254 habeas corpus petition. The petitioner was convicted of drug trafficking and given a ten year sentence. The evidence showed that prior to trial, the prosecution offered a plea bargain to his counsel, but the petitioner claims he encouraged him to go to trial. He was convicted, given ten years, and appealed.

On appeal, his appellate counsel failed to inform him of his post-conviction rights, and specifically the fact that he had only a 180-day limit to file a post-conviction petition. As a result, the petitioner missed his post-conviction filing deadline. Petitioner filed a 2254 petition raising ineffective assistance of appellate counsel. The district court denied.

The 6th Circuit reversed finding that appellate counsel's failure to advise the defendant about his post-conviction rights, and the 180-day time limit, amounted to ineffective assistance of appellate counsel. The court's opinion is unique, and gets its Agency law issues, but ultimately reverses and remands. There is a discussion of Martinez v. Ryan claims (on ineffective assistance of post-conviction counsel) as well. This case is interesting in evaluating the duties of appellate counsel, which include the right to inform a defendant of their post-conviction rights and deadlines as well.

4) United States v. Bryon Taylor, Case No. 12-3730

http://www.ca6.uscourts.gov/opinions.pdf/14a0080p-06.pdf

This is my case, so I will try to tether my editorializing, but probably won't. Mr. Taylor was convicted in 2004 of crack cocaine offenses. His offense subjected him to a 120-month mandatory minimum, but the government filed an enhancement, setting him mandatory minimum at 240 months. He was able to pierce the mandatory minimum due to 5K, and got a sentence of 151 months.
After the retroactive crack cocaine amendments, a 3582 sentence reduction motion was filed, alleging his guideline range had been lowered 2 levels and that he was eligible for a reduction to 130 months.
The district court denied, and the 6th Circuit affirmed. Judge Boggs wrote the opinion, but Judge Donald wrote a dissent. Judge Boggs concluded that under USSG 1B1.10, which discusses eligibility requirements for reduction, prevented relief. The key term is whether a defendant's "applicable guideline range" has been lowered. The majority concluded that under USSG 1B1.10, 1B1.1, and 5G1.1, all make clear that if the defendant was subject to a statutory mandatory minimum, then that mandatory minimum IS the applicable guideline range. Essentially, the 5K departure has no bearing on the reduction analysis, and as the Court says "the helpful defendant has bottomed out" at the mandatory minimum. This holding is consistent with another one of my appeals, United States v. Joiner.

Judge Donald's dissent essentially argues that the statutory mandatory minimum becomes "inoperative" when the defendant cooperates and pierces the mandatory minimum. Because it is inoperative, it cannot act continue to act as a floor for 3582 eligibility. This is consistent with the holdings of the 7th Circuit (US v. Wren), 3rd Circuit (US v. Savani) and DC Circuit (In re Sealed Case).

A petition for rehearing will be filed, but one thing should be made clear. This appeal, and many like it, concern on the definition of "applicable guideline range" found in USSG 1B1.10. The majority, and the corresponding similar appeals, all conclude that the mandatory minimum = the applicable guideline range, regardless of any subsequent departures or 5K grants. BUT, the Sentencing Commission, days before the issuance of this appeal, issued new sentencing guideline amendments. Specifically, the Commission changed 1B1.10, to add the following language:

If the case involves a statutorily required minimum sentence and the court had the authority to impose a sentence below the statutorily required minimum sentence pursuant to a government motion to reflect the defendant's substantial assistance to authorities, then for purposes of this policy statement the amended guideline range shall be determined without regard to the operation of §5G1.1 and §5G1.2.

So, this new amendment, which takes effect on November 1, 2014, essentially adopts Judge Donald's position (and my position). In total, a cooperating defendant will not be hampered by their pierced mandatory minimum in seeking a sentence reduction. More to come.......

5) United States v. Kilgore, No. 13-5623

http://www.ca6.uscourts.gov/opinions.pdf/14a0073p-06.pdf

Defendant was sentenced to 70 months for being a felon in possession of a firearm. While performing community service at a police station, he stole two firearms from the evidence room. At sentencing, he was given a 2-level enhancement for "stealing" the firearms (2K2.1(b)(4)). He was also given a 4-level enhancement under 2K2.1(b)(6)(B), for possessing the firearm in connection "with another felony offense." He challenged the 4-level enhancement, stating the stealing of the firearms was not an other felony offense. The Sixth Circuit agreed, finding the act of stealing the firearms could not amount to another felony offense is connection with the illegal possession of the same firearms. His sentence was reversed and the case was remanded. Jeff firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-65702698770907195842014-04-15T18:19:00.000-04:002014-04-15T18:19:26.476-04:00Policy and Perjury and Leadership, oh my!Last week, the Sixth Circuit ruled in United States v. Kamper and Head, 12-5167 and 12-5800. The cases concerned an MDMA distribution conspiracy. Kamper was the "administrator" of the conspiracy and Head, a chemist, was "in charge of manufacturing." The conspiracy was Kamper's idea and he provided the start up funds. Head had access to chemicals and knew how to make the drug. Other co-conspirators were involved.

Policy disagreements
Kamper pled guilty. He argued at sentencing (well, pre-sentencing and at sentencing) that the MDMA-to-marijuana ratio in the guidelines was based on discredited science. He asked the district court to select a new ratio, or to vary from the Guidelines. The district court concluded "that the Sentencing Commission is in a better position than this Court to take into account all of the various value judgments involved in adopting a particular guideline." The district court provided other rationales as to why it could not reject the ratio established in the Guidelines.

The Sixth Circuit ruled the district court was wrong. It ruled "district judges may exercise their discretion to reject Guidelines ratios because of policy disagreements in all aspects of the Guidelines." It clarified its ruling in Bistline: "the courts have the authority to reject the Guidelines range selected by Congress," provided they articulate their refutation of the particular Guideline. Most of all, "The district court must not rely on the Guidelines for reasons that Kimbrough rejected, such as institutional competence, deference to Congress, or the risk that other judges will set different ratios."

The Sixth decided the district court was wrong, but had otherwise sufficiently justified Kamper's sentence as to not warrant remanding for a new sentencing hearing.

Perjury
Head went to trial. He testified on his own behalf and "flatly stated that he had never produced MDMA." He had "no idea" how the stuff was made. The jury convicted him, and his presentence report recommended a two-level obstruction-of-justice enhancement for the perjury. The district court applied the enhancement, over Head's objection.

The Sixth Circuit reversed this decision. District courts must go through a two-part evaluation: (1) identify the portions of the testimony that are perjurious, and (2) make a specific finding for each element of perjury. Perjury, in turn, has three elements: (1) false statement under oath (2) concerning a material matter (3) with the willful intent to provide false testimony. The district court ruled the statements were false, but failed to make factual findings about the other two elements of perjury: materiality of the matter or Head's intent.

Leadership
Head also objected to the three-point bump for being a manager or supervisor of the conspiracy. The district court ruled the enhancement applied because each of the three co-conspirators was "jointly the manager or supervisor of the entire operation."

The Sixth Circuit reversed. To qualify for the enhancement, a defendants "must have managed or supervised one or more other participants and not merely the criminal scheme." So the district court misapplied the law when it ruled the three co-defendants were "jointly the manager or supervisor of the entire operation." The Sixth Circuit acknowledged "the record arguably demonstrates that Head was responsible for directing other individuals in menial tasks" but asserted the district court erred when it did not make a factual finding that Head managed or supervised other individuals involved in the conspiracy. Laura Davis, AFPD, FDSEThttp://email@example.com:blogger.com,1999:blog-9419566.post-2208132243380966232014-03-21T16:54:00.001-04:002014-03-21T16:54:23.464-04:00Holder Memo on AppealUnited States v. Ivory, No. 13-5962 (6th Cir. Mar. 21, 2014) (unpublished), is a fairly unremarkable per curiam opinion (Judges Boggs, Siler, and Gibbons).

But I'm noting it here b/c the defendant relied on the Holder memo to argue for a lower sentence. The COA rejected the argument.

Crack case. Defendant was a career offender. GLs 151 to 188. D asked for a 60-month sentence (over-represented criminal history, just a street-level dealer). Dist ct granted downward variance and sentenced D to 130 months of imprisonment.

COA says that "[g]iven that we afford a within-guidelines sentence a rebuttable presumption of substantive reasonableness, [the defendant's] burden of demonstrating that his below-guidelines sentence 'is unreasonably long is even more demanding.'"

COA stressed that the Holder memo on charging mand mins and recidivist enhancements is just a policy statement. Confers no rights. Plus, D was not subject to a mand min, was already convicted at the time, and not subject to a "recidivist enhancement" (statutory one, as he was a career offender). Also said that he was not a candidate for the policy b/c of his lengthy criminal history.

Sentence affirmed. Clare Freeman, RWS, WD firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-45569172334342772692014-03-21T15:54:00.002-04:002014-03-21T15:54:47.275-04:00Seventh Circuit on GPSFollowing up on the post below, I think it is worth noting that the Seventh Circuit remains undecided on the GPS good-faith issue. United States v. Brown, No. 11-1565, 2014 U.S. App. LEXIS 4076, at *7 (7th Cir. Mar. 4, 2014).

United States v. Katzin, 732 F.3d 187 (3d Cir. 2013), the once helpful Third Circuit case, is up for rehearing en banc on May 28, 2014.

I think we can expect to hear of cert petitions going up. . . . We just have to stay tuned. Clare Freeman, RWS, WD firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-62345769231247842902014-03-14T14:20:00.002-04:002014-03-14T14:22:41.960-04:00No suppression of use of GPS before Jones

Keeping in line with the Supreme Court's decision in Davis v. United States, 131 S.Ct. 2419 (2011), the Court today held that, while use of a GPS device violated the Fourth Amendment, exclusion of the evidence was not an appropriate remedy, as at the time of the use of the device, the uncontradicted case law allowed for such use.  United States v. Fisher, 13-1623

At the time the police placed the tracking device on Fisher's vehicle, the training and guidance provided to these officers by various police agencies and prosecutors all indicated that such conduct was consistent with the Constitution; no circuit authority had indicated that the use of a GPS tracker was unconstitutional, and three circuits had held that such conduct was lawful; the relevant Supreme Court case law had indicated such a practice was lawful; and our precedent also provided binding authority permitting such conduct. These are not the type of circumstances that warrant the application of the "bitter pill" that is the exclusionary rule. As it is apparent that the police acted in reasonable, good-faith reliance and that their conduct was lawful, the exclusionary rule does not apply.

Kevin Schad appellate division SDOHhttp://email@example.com:blogger.com,1999:blog-9419566.post-43729534830926216022014-02-20T14:37:00.000-05:002014-02-20T14:37:43.406-05:00Pinholster and Habeas Evidentiary HearingsThere remains a bit of confusion over whether district courts have the authority to conduct evidentiary hearings in Section 2254 habeas corpus cases in which the state courts have previously adjudicated a petitioner's claim "on the merits." While not settling the matter for good, two important Sixth Circuit decisions this week have provided a bit of clarity.

Historically, habeas corpus has allowed federal courts to conduct de novo review of federal constitutional claims arising out of state court convictions. This included wide latitude to conduct evidentiary hearings. Much of this changed with the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA).

The confusion arises out of the interplay between two AEDPA provisions in particular. The first, Section 2254(d), provides (crudely speaking) that only "unreasonable" state court merits decisions are reviewable in habeas corpus proceedings. The second, Section 2254(e), allows federal evidentiary hearings so long as the petitioner was diligent in attempting to develop his facts while litigating his claim in the state courts. Williams v. Taylor, 529 U.S. 420, 432 (2000). The issue arises when a federal court is tasked with assessing the "reasonableness" of a state court decisions based on a factual record that the state court itself never considered.

For years, many courts reconciled these provisions by concluding that Section 2254(d)'s deferential standard simply does not apply where the federal court is assessing a more complete factual record. See, e.g., Winston v. Kelly, 592 F.3d 535, 555-556 (4th Cir. 2010) ("judgment on a materially incomplete record is not an adjudication on the merits"). Other courts, such as the Sixth Circuit, held that some form of "modified AEDPA deference" applies. Hawkins v. Coyle, 547 F.3d 540, 547 (6th Cir. 2008).

The Supreme Court rejected both approaches in Cullen v. Pinholster, 131 <st1:place w:st="on">S. Ct.</st1:place> 1388, 1398 (2011), holding that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." The Court explained,

Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time -- i.e., the record before the state court.

<o:p> </o:p>
 Because the Court in Pinholster declined to overrule Williams, evidentiary hearings remain appropriate in habeas corpus proceedings so long as the petitioner tried to develop his evidence in state court. But because Section 2254(d) precludes consideration of newly-developed evidence, it is not obvious what purpose those hearings could actually serve.

There are actually several purposes, as Justice Breyer's concurring opinion in Pinholster explains. These include the following:

§ 2254(d)(1) does not leave AEDPA's hearing section, § 2254(e), without work to do. An offender . . . must first present a claim (including his evidence) to the state courts. If the state courts reject the claim, then a federal habeas court may review that rejection on the basis of the materials considered by the state court. If the federal habeas court finds that the state-court decision fails (d)'s test . . . , then an (e) hearing may be needed.
<o:p></o:p>

For example, if the state-court rejection assumed the habeas petitioner's facts (deciding that, even if those facts were true, federal law was not violated), then (after finding the state court wrong on a (d) ground) an (e) hearing might be needed to determine whether the facts alleged were indeed true.

Under Justice Breyer's reasoning, Pinholster created a two-step review process for any case in which the state court denied a prisoner the opportunity to prove the facts supporting his claim, and instead ruled solely on the basis of his factual allegations. First, a petitioner must show that the state court decision was unreasonable under Section 2254(d) on the basis of the evidence (or allegations) before the state court. Second, if the petitioner can satisfy Section 2254(d), he must prove as a factual matter -- and under a de novo standard of review -- that he is entitled to habeas corpus relief under Section 2254(a), i.e., that he "is in custody in violation of the Constitution or laws or treaties of the United States."

Several courts have adopted this interpretation. The Seventh Circuit, for example, has found that "[a]lthough a state court decision that stems from an unreasonable application of federal law will usually meet § 2254(a)'s requirement . . . [the federal] court will engage in de novo review after a finding of unreasonableness to answer the 2554(a) question as if the state court never reached the merits." Quintana v. Chandler, 723 F.3d 849, 852 (7th Cir. 2013). See also Newman v. Harrington, 726 F.3d 921, 932 (7th Cir. 2013) (because "the state court's decision denying post-conviction relief violated § 2254(d)[]," it was appropriate to consider de novo "the evidence presented at the federal evidentiary hearing"); Stitts v. Wilson, 713 F.3d 887, 895-86 (7th Cir. 2013) ("[t]his procedure is not inconsistent with . . . Pinholster . . . . We do not remand for an evidentiary hearing to determine whether the state court unreasonably applied Strickland pursuant to § 2254(d)(1); we have already found that it did, without going outside the state court record. Instead, we remand to reach an issue that the state court never addressed . . . .").

 The Fifth Circuit adopted a similar approach in Smith v. Cain, 708 F.3d 628, 631 (5th Cir. 2013), explaining that "Pinholster's restriction does not bar the federal evidentiary hearing conducted in this case because the district court first concluded, solely on the basis of the state court record, that the state courts committed legal error, as required under 28 U.S.C. § 2254(d)(1) . . . ." See also Morris v. Thaler, 425 Fed. Appx. 415 (5th Cir. 2011) ("a hearing is necessary not to evaluate the state court's decision, but to determine whether Morris's allegations are true. This is the precise scenario contemplated by Justice Breyer . . . .").

But not the Sixth Circuit. In fact, in Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th <st1:city w:st="on">Cir.</st1:city> 2013) (discussed previously on this blog), the court seemed to say the opposite -- that under Pinholster, "district courts are precluded from conducting evidentiary hearings to supplement existing state court records when a state court has issued a decision on the merits with respect to the claim at issue." Not only was this language dicta (the petitioner did not satisfy Section 2254(d) based on the state court record alone, so there was no need to consider whether he otherwise would have been entitled to an evidentiary hearing), but it was also wrong, for the reasons explained by Justice Breyer in Pinholster.

Two decisions this week appear to represent an appropriate retreat from Ballinger's misguided discussion of Pinholster. First, in Parks v. Klee, No. 11-2531, a per curium unpublished decision by Judges Moore, Gibbons, and Sutton, the panel remanded the case for resolution of a Batson/Strickland claim in spite of a prior state court merits adjudication. Parks involved a claim that trial counsel was ineffective for failing to raise a Batson challenge to the Kent County Prosecutor's improper dismissal of all four African-American jurors. The petitioner supported this claim with affidavits and detailed factual allegations, and asked repeatedly for an evidentiary hearing. The state courts rejected this claim on the merits, and on the basis of these allegations alone. In federal court, the petitioner maintained that the state court decision was unreasonable, but conceded that the existing record did not entitle him to relief. Instead, he argued, a de novo federal evidentiary hearing was necessary in order to prove the truth of his allegations -- i.e., to prove that a Batson challenge would have been successful. The Michigan Attorney General argued that a remand would be pointless because the "plain language of Pinholster and Ballinger preclude an evidentiary in the district court." The court apparently disagreed. While its four-paragraph opinion does not discuss these issues, it necessarily rests on the conclusion that a hearing would be appropriate if the state court decision was unreasonable and essential facutal questions remain unresolved.

Second, in King v. Berghuis, No. 12-1486, Judge Keith issued a dissenting opinion which (unlike the majority) reached the issue of whether an evidentiary hearing was appropriate to resolve the petitioner's claim. Judge Keith strongly endorsed the view espoused by Justice Breyer, finding that a federal evidentiary hearing was both appropriate and necessary in order to resolve "[l]egitimate issues" of fact. He explained, "While I am satisfied that the record is sufficient to make an assessment as to whether the state court judge unreasonably applied [federal law], I am not satisfied that it is sufficient to reach a conclusion with respect to the merits of King's due process claim."

While no Sixth Circuit case has yet said definitively whether Ballinger's dicta is the law in this Circuit, there appears to be a growing recognition that federal evidentiary hearings will remain an important component of the adjudication of habeas corpus cases -- particularly those in which the state courts have reached the merits of a claim without allowing for necessary factual development.Bradley R. Hall, E.D. firstname.lastname@example.com:blogger.com,1999:blog-9419566.post-35453652527142156192014-02-14T16:00:00.000-05:002014-02-14T16:00:33.874-05:00United States v. Duval, Nos. 12-2338/2339 (6th Cir. Feb. 7, 2014) (for publication).

Med MJ issues.

Panel of Judges Cole, Gilman, Donald.

Issues:
* Was compliance with Mich Med MJ Act (MMMA) relevant to search-warrant application? COA said no.
* Did the indictment allege a federal crime even though one of the defendants was a registered "caregiver" under the MMMA and qualified for the "practitioner exception" under 21 U.S.C. 802(21)? COA said yes.
* COA affirmed district court.

Discussion:
* Defendants said search warrant invalid b/c deputy omitted defendants' status as registered patients and caregivers under Mich law. Gov said issue waived b/c not raised in dist ct. COA rejected gov's contention---defense counsel probed issue sufficiently in dist ct, though not quite explicitly.
* Deputy did not have "clear and uncontroverted evidence" that defendants were complying fully with MMMA at time of search-warrant application. Actually seemed like the defendants were not complying, given what officer knew. The deputy did not know another officer had advised the defendants earlier about complying with the MMMA. So failing to include that info in warrant application could not be deliberate. Info not imputed here. No evidence the officers communicated.
* Application for warrant was to state magistrate, rather than the federal magistrate judge, despite fact deputy was detailed to a federal agency. But deputy's position gave him flexibility to choose whether investigation would go state or federal.
* No error in failing to suppress evidence.
* Defendants waived and forfeited chance to challenge sufficiency of indictment. Issue raised first time on appeal. Won't fly unless the alleged defect is jurisdictional. No jurisdictional defect here. COA cited United States v. Marcinkewciz, No. 12-2441 (6th Cir. Oct. 29, 2013).

Clare Freeman, RWS, WD email@example.com:blogger.com,1999:blog-9419566.post-7524885917853629832014-01-30T09:41:00.002-05:002014-01-30T09:41:41.338-05:00Sixth Circuit working on video conference argumentsI was up at the Sixth Circuit for argument on January 28. I noticed a big video screen to the right of the bench, another smaller one below the bench, and a camera high above the bench pointed at the lectern. I asked the court staff about them. She pointed out two big screens over the doors (one for each side of argument) and a camera above those. The Sixth Circuit is working towards being able to host oral argument via video conference. Any combination of judges and attorneys could, in theory, appear via a video link. It is hoped this would be a better option than telephone conference - people would be able to see each other. They've tried a few arguments this way, to mixed success.

One judge at my argument appeared telephonically. Weather in Michigan was terrible, and temperatures in Cincinnati were below zero. I don't blame him. I wondered if I would rather be able to see his face - would he or I be more engaged? On the other hand, I like the idea of a judge being able to participate in argument from the comfort of their own home (in their jammies or favorite warm outfit) when inclement weather strikes.

What do y'all think?Laura Davis, AFPD, FDSEThttp://firstname.lastname@example.com


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Weaving is fun for a variety of craft project. This card craft project by Maria Nerius uses a very loose weave to give a carefree, whimsical look and feel.
- Design Originals Paper (Spring Stamps)
- Scrap Paper
- Card Blank
- Embellishment: Faux Postage Sticker or Embroidered Butterfly Patch
- White or Brown ink
- Art Sponge
- Fiskars Personal Paper Trimmer
- Aleene's Tacky Glue glue stick
- Cut scrap paper into strips. Width and size can be the same or feel free to vary the stripes.
- Weave the strips. You'll be using 3 vertical and 3 horizontal strips.
- Glue weaved piece to front of card to bottom. Adhere embellishment to center of weave.
- Trim and double mat the Design Originals paper stamp (cut out 1 from sheet of 12). Adhere to top, center, at a slight slant.
- Sponge with contrasting ink.
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Instructions too brief and too few illustrations - I just don't quite get it. I understand everything up to and including step 3, and I understand the images at the bottom of the photos, but not how they relate to the top of the images nor instructions 4 & 5. I'd LOVE to understand the rest of the card!! Tnx..
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subset: commoncrawl


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Markham Housekeepers
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Markham, IL
I do not have any housekeeping experience but let me tell you how clean a daycare has to be to meet state requirements. I took pride in how clean I had the daycare on my shifts. I am also a "neat frea...
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I can do house cleaning, laundry and cooking. I am available monday - friday.
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Providing Wireless In the World's Most Dangerous and Remote Places 40
from the 5-bar-volcano dept.
We've improved Slashdot's video section; now you can view our video interviews, product close-ups and site visits with all the usual Slashdot options to comment, share, etc. No more walled garden! It's a work in progress -- we hope you'll check it out (Learn more about the recent updates).
I fail to see the 'unconventional' here - as if people in [underdeveloped country of your choice] don't want to talk to each other. Or somehow network effects or being able to connect to the rest of the world doesn't count, just because your cell tower is the first in the area.
So you can't really say Digicel created such market(s) IMHO. It's more like the market did exist, and (by taking a big risk) they where the first to crack it open. Kudoz to them for having the balls, but that's about it. What it does show, is that (potentially) you can sell telecoms gear anywhere where there are people. And in a booming market, no less. Oh wait... news at 11.
Likewise, the article's premise of 'build infrastructure & clients will come' is nonsense. Put cellphone network in the middle of the Atlantic, and all it will do is sink.
Being a billionaire means you have billions of dollars worth of assets, the debt or lack thereof of a company you work for is utterly irrelevant.
This post was made from a Digicel connection from my yacht (currently in Tonga).
Taking a break from the champage, coke and hookers eh?
When some people discover the truth, they just can't understand why everybody isn't eager to hear it.


text:
Primary Responsibility
SchoolsFirst Federal Credit Union is looking for a Membership Development Officer. This individual, under general supervision, responsible for seeking out and approaching schools, school districts and unions in assigned region to establish new memberships, new relationships, and to provide consultative services to existing Members. Nurture and maintain existing relationships. Float position serving OC/LA/San Bernardino/Riverside counties.
Essential Job Functions
EducationHigh School Diploma Required
Educational Requirements3 – 5 previous years of related experience required
Certification/Licensure RequirementsMust have a valid California driver's license and insurance
Complete Benefits Package:100% company paid medical, dental, and vision for you and your dependents100% matched 401K (dollar for dollar, up to 6%)Paid holidays, vacation, sick days, and personal leave100% paid life and disability insuranceAmazing discounts on Sprint and AT&T servicesContingency child care programEducational assistant programEmployee assistance program0% interest loans for laser eye surgery, computer, and wardrobe loans24 hour fitness discountsVPI pet insuranceMembership for you and your immediate family
SchoolsFirst Federal Credit Union is an equal opportunity employer and prohibits discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibits discrimination against all individuals based on their race, color, religion, sex, or national origin.
SchoolsFirst FCU is committed to fostering, cultivating and preserving a culture of diversity and inclusion. The collective sum of the individual differences, life experiences, knowledge, inventiveness, innovation, self-expression, unique capabilities and talent that our teammembers invest in their work represents a significant part of not only our culture, but our reputation and the ability to work effectively with a diverse Membership base.
We are obliged to file this information periodically with various government agencies for statistical reports.
Entering this information is voluntary. This information will not affect the decision regarding your application for employment, and it will be kept confidential.
If this employer is a federal contractor subject to the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) of 1974, as amended by the Jobs for Veterans Act of 2002, 38 U.S.C. 4212 (VEVRAAA), it is required to take affirmative action to employ and advance in employment: (1) Disabled veterans; (2) Recently separated veterans; (3) Active duty wartime or campaign badge veterans; and (4) Armed Forces service medal veterans.
If this employer is a government contractor subject to VEVRAA, this information will be used to measure the effectiveness of its outreach and positive recruitment efforts it undertakes pursuant to VEVRAA. This information is being requested on a voluntary basis and will be kept confidential as required by law. Refusal to provide the requested information will not subject you to any adverse treatment. If provided, this information will not be used in a manner inconsistent with VEVRAA.
(a) A veteran of the U.S. military, ground, naval, or air service entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs; or (b) A person discharged or released from active duty because of a service-connected disability.
Any veteran during the three-year period beginning on the date of such veteran''s discharge or release from active duty in the U.S. military, ground, naval, or air service.
A veteran who served on active duty in the U.S. military, ground, naval, or air service during a war, or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense.
A veteran who, while serving on active duty in the U.S. military, ground, naval, or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to the Executive Order 12985.


text:
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community, and it doesn't go unnoticed!
from San Francisco, lover of the outdoors and a fine paella
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Dug was a wonderful, low key guest.... even though here for the big Ski to Sea race.
Glad you were able to unwind between events here and enjoy your time in Bellingham. It was fun to host visiting racers to the area and I am glad it worked out for you!
When Dug and Jenny stayed at our home, they were considerate, friendly, and ever so forgiving. They didn't quite get their money's worth here as I had an 8 AM appointment and told them to fix their own breakfast. Since they arrived at 1 AM, there was no greeting party. Yet even after an 8 hour work day, then an 8 hour drive, finding their own room, and fixing their own breakfast, they were still sweet and smiling. Awesome!!! Dug and Jenny are amazingly easy-going and compatible. They were perfect guests!
Short stay and they were respectful and recommend to other hosts
Perfect guest! Nothing to say!
Dug and Jennifer were quiet and polite. I hardly knew they were here!
Todo muy correcto :)
Dug was our guest in Valencia's Blue Loft for some days in June 2012. He was very easy going and together with his friend a nice couple to have around. They took very much care of the place and belongings and left everything in perfect condition of cleanliness and order.
Would recommend him to every host in the future! Thanks, Dug, for your visit!
Dug is definitely a perfect guest. We recommend Dug highly to anyone who wants to open their home to him!
Doug would be welcomed back in a heartbeat! He was friendly, responsive and treated the property with care and respect.


text:
American Solutions Inc ReviewsAmerican Solutions Inc 8
Recommend to a friend
Approve of CEO
Raju Indukuri
1 Rating
I have been working at American Solutions IncPros
good support to the employees & average trainingCons
should be more professional in dealing with employeesAdvice to ManagementAdvice
Please hire better communicative peopleDisapproves of CEO
American Solutions Inc Interviews
Interview Experience
Interview Experience
Getting an Interview
Getting an Interview
Interview Difficulty
- Application Details
I applied online. The process took a day – interviewed at American Solutions Inc in March 2010.Interview Details
Filled out an online application and was called for a phone interview. Had a 1:1 and it didnt pan out so well, did not like the feel of the company.Interview Questions
No OfferNegative ExperienceEasy Interview
- Why do you feel you belong with our company? Answer Question
American Solutions Inc Awards & Accolades
Let us know if we're missing any workplace or industry recognition – Add an award
Additional InfoUnlock Profile
Website www.amsolinc.com
Headquarters Newark, DE
Size 150 to 499 Employees
Founded 1999
Type Company - Private
Industry Information Technology
Revenue $25 to $50 million (USD) per year
Competitors Unknown
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American Solutions Inc
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text:
Blue Bomber Report Record: 7–11–0
Winnipeg Free Press - PRINT EDITION
5 storylines
It's long been joked that watching pre-season football is about as riveting as monitoring a tree as it forms its annual ring. And when the Bombers travel to Guelph with a collection of no names, many of whom likely won't be on the 42-man roster by the weekend, it hammers home how absolutely meaningless the outcome is tonight.
On Tuesday, head coach Tim Burke told 27 players they had already made the team. He then preached to the prospects the real opportunity they have to show they can play in the CFL. Worth noting is Burke also said earlier in the week he wouldn't be surprised if the Bombers get "blasted" in this one and that fans shouldn't read anything into the result.
So it's here where two philosophies essentially collide: The idea to keep starters healthy for the opener against Montreal on June 27 is sound in its approach, but it must be weighed against the concern about how ready this crew will be in a week.
And based on what was on display in a 24-6 loss to Toronto in the first pre-season game, the Bombers will have a ton of cramming to do to be ready for the always-powerful Alouettes.
"I don't think you ever feel you're ready, especially for the first game. But I think we're probably right where we should be," said Burke. "If you asked me this three days ago, I'd probably have said, 'No, we're not ready.' But I think we've come along. We've put guys through every game situation you can think of."
THIS will be the last chance to lock down a starting gig for some or secure a roster spot for others before the cuts come on the weekend. So don't tell guys like Jade Etienne -- who is fighting Kito Poblah for a starting slotback job -- or newcomers like defensive back Marty Markett, receiver Trevor Kennedy or defensive end Anthony DeGrate that this game means diddly squat. The score may not matter, but how they pop off the game film can make or break careers.
"There's a handful of guys who have opportunities to be starters and if they do well in this game, they'll be starters," said Burke.
When asked what starting jobs might be up for grabs, the coach added this, with a sly grin:
"No. I'd rather not, because I don't want them to read it in the paper. No offence, but I don't want them knowing that I know."
Our own thoughts, for what it's worth: Clearly there is an opening to replace Jonathan Hefney in the secondary, Kenny Mainor is hardly a lock at defensive end, there is a scrap at right tackle between the three imports making the trip in Shannon Boatman, Andre Douglas and Aderious Simmons and the backup QB chores are Justin Goltz's for the taking.
Yes, sometimes the subplots can be more interesting that the main storyline.
IT was interesting to see Goltz address the crew playing in this game after practice earlier this week. His message was to remind everyone of the opportunity here and to study up on Hamilton to get a feel for their opponent.
Good idea... and that goes double for the guys on the offensive line.
Goltz will start the game and play most of the first half as he attempts to hold off newcomers Max Hall and Chase Clement and land the back-up QB chores to Buck Pierce. The lineup in front of him will feature two starters on the O-line in centre Justin Sorensen and Boatman and a receiving corps that features three CFL rookies, along with Etienne, Doug Pierce and Kurt Adams, who have a grand total of seven receptions between them.
"The guys that are going to be there have talent," said Burke. "We would not put an offensive line out there that is going to get our quarterback killed. I think he's got enough tools out there to work with."
LET'S all assume Alex Hall, Bryant Turner, JT Gilmore and Kenny Mainor have the starting four jobs along the defensive front secured, although it sounds like Mainor's name shouldn't be written in ink. It's also likely Ryan Lucas and Jake Thomas, the Canadians, will somehow be in the discussion when the games start for real.
All that said, while some of the newcomers have shown the periodic flash, none have dropped jaws. In fact, on those occasions when Burke has hinted at possibly needing help somewhere on the roster, it's easy to surmise this is the area he has circled in red. So, good morning Marquis Frazier, Anthony DeGrate, Freddie Harris and Zach Anderson... this is your wake-up call.
JONATHAN HEFNEY'S hasty exit opens the door for Demond Washington to replace him and that seems a lock for Week 1. Newcomers David James and Wesley Pendleton -- the only players listed at halfback for Thursday's game -- hope to muddy that discussion by standing out against the Ticats. Desia Dunn is the lone player at the nickelback linebacker position -- a spot reserved for Johnny Sears Jr. as he recovers from injury.
So, what does all this tell us as the pre-season is about to end? The Bombers' game plan for today's tilt might best be described this way: get in, get out healthy and then get to work for the real games.
-- with files from Paul Wiecek
email@example.com Twitter: @WFPEdTait
Republished from the Winnipeg Free Press print edition June 20, 2013 D2
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Previewing potential picks in draft03/27/2015 3:00 AM 0
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Recent answers to Firefox will not open comcast.net email, how to fix problem?https://support.mozilla.org/en-US/questions/9483142013-01-29T07:45:18-08:00The issue was resolved by using the following suggestion: "Note: The Reset Firefox feature can fix m2013-01-29T07:45:18-08:00cjones558https://support.mozilla.org/en-US/questions/948314#answer-402919
The issue was resolved by using the following suggestion: "Note: The Reset Firefox feature can fix many issues by restoring Firefox to its factory default state while saving your essential information. Consider using it before going though a lengthy troubleshooting process."

Thanks so much for your help

Carlos Jones
Try to create a new profile as a test to check if your current profile is causing the problems. See 2013-01-28T18:29:22-08:00cor-elhttps://support.mozilla.org/en-US/questions/948314#answer-402736
Try to create a new profile as a test to check if your current profile is causing the problems.

See "Creating a profile":

https://support.mozilla.org/kb/profile-manager-create-and-remove-firefox-profiles

http://kb.mozillazine.org/Standard_diagnostic_-_Firefox#Profile_issues

If the new profile works then you can transfer some files from an existing profile to the new profile, but be careful not to copy corrupted files.

http://kb.mozillazine.org/Transferring_data_to_a_new_profile_-_Firefox

It is also possible that your security software is blocking cookies.
The problem remains unresolved. It could be that I am not computer savvy enough to address matters o2013-01-28T16:40:28-08:00cjones558https://support.mozilla.org/en-US/questions/948314#answer-402713
The problem remains unresolved. It could be that I am not computer savvy enough to address matters of this nature. I will drop the issue and use Internet Explorer for Comcast email.
If clearing cookies doesn't work then it is possible that the cookies.sqlite file that stores the co2013-01-26T16:44:30-08:00cor-elhttps://support.mozilla.org/en-US/questions/948314#answer-402136
If clearing cookies doesn't work then it is possible that the cookies.sqlite file that stores the cookies is corrupted.

Rename (or delete) cookies.sqlite (cookies.sqlite.old) and delete other present cookie files like cookies.sqlite-journal in the Firefox Profile Folder in case the file cookies.sqlite got corrupted.

http://kb.mozillazine.org/Cookies

https://support.mozilla.org/kb/Deleting+cookies

Start Firefox in Safe Mode to check if one of the extensions (Firefox/Tools > Add-ons > Extensions) or if hardware acceleration is causing the problem (switch to the DEFAULT theme: Firefox/Tools > Add-ons > Appearance).

Do NOT click the Reset button on the Safe mode start window or otherwise make changes.

https://support.mozilla.org/kb/Safe+Mode

https://support.mozilla.org/kb/Troubleshooting+extensions+and+themes

Following the recommendations of feer56 and cor-el did not resolve the problem. I remain unable to o2013-01-26T07:19:36-08:00cjones558https://support.mozilla.org/en-US/questions/948314#answer-402003
Following the recommendations of feer56 and cor-el did not resolve the problem. I remain unable to open Comcast email using Firefox.
There is usually no need to clear all the cookies. Clear the cache and the cookies from sites that c2013-01-24T22:14:01-08:00cor-elhttps://support.mozilla.org/en-US/questions/948314#answer-401572
There is usually no need to clear all the cookies.

Clear the cache and the cookies from sites that cause problems.

"Clear the Cache":

Tools > Options > Advanced > Network > Cached Web Content: "Clear Now"

"Remove Cookies" from sites causing problems:

Tools > Options > Privacy > Cookies: "Show Cookies"

Many site issues can be caused by corrupt cookies or cache. In order to try to fix these problems, t2013-01-24T20:49:09-08:00feer56https://support.mozilla.org/en-US/questions/948314#answer-401553
Many site issues can be caused by corrupt cookies or cache. In order to try to fix these problems, the first step is to clear both cookies and the cache. Note: This will temporarily log you out of all sites you're logged in to. To clear cache and cookies do the following:

Go to Firefox > History > Clear recent history or (if no Firefox button is shown) go to Tools > Clear recent history.

Under "Time range to clear", select "Everything".

Now, click the arrow next to Details to toggle the Details list active.

From the details list, check Cache and Cookies and uncheck everything else.

Now click the Clear now button.

Further information can be found in the Clear your cache, history and other personal information in Firefox article.

Did this fix your problems? Please report back to us!