Daily Case Update Archive

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Feb. 27th, 2009

Ohio Supreme Court | Ohio First District | U.S. 6th Circuit - Ohio | U.S. 6th Circuit - Other States
 

TOPICS:
- Commercial / UCC / Civil Miscellaneous
- Counsel / Miranda / ORC 2941.25 / Search and Seizure
- Sex offenses / Constitutional Law/ Civil
- Sufficiency of the Evidence / Obstruction of justice / Restitution Award
- Citizenship / Application for Naturalization / Bigamy
- Immigration / Petitions for review / Eligibility for asylum
 

Ohio Supreme Court

 

No Opinions.
 

First District Court of Appeals

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Ludwig v. Fifth Third Bank (Feb. 27, 2009)(2009-Ohio-870)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-870.pdf
-  The trial court appropriately granted summary judgment on a claim under R.C. 1303.60 for the conversion of checks that had never been received by the payee or an agent of the payee. R.C. 1303.49 applies only when a check has been forged or altered; when a check has not been forged or altered, the statute cannot be invoked to grant summary judgment to a bank that has accepted without endorsement a check from a person that the check was not issued to. Judgment AFFIRMED in Part, REVERSED in Part,and Cause REMANDED.

State v. Burton (Feb. 27, 2009)(2009-Ohio-871)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-871.pdf
-  The defendant voluntarily waived his Miranda rights and his confession was voluntary under the Due Process Clause, when the record showed that his confession was not the result of coercive police activity; a police officer’s suggestion that the defendant’s girlfriend might be charged with permitting drug abuse was not coercive because the officer had probable cause to believe that the girlfriend had committed an offense, and it did not render the defendant’s statements involuntary. A search warrant was not fatally deficient for failing to particularly describe the place to be searched because of a wrong zip code; the other information about the place to be searched in the warrant and supporting affidavit was correct, and little danger existed that the police would search the wrong residence. The defendant failed to meet his burden to show ineffective assistance of counsel, when the record did not show that the live testimony of a confidential informant, instead of a transcript, would have resulted in the trial court reconsidering its decision to deny the defendant’s motion to suppress. The trial court erred in failing to merge for sentencing one count of trafficking in cocaine under R.C. 2925.03(A)(2) and one count of possession of cocaine under R.C. 2925.11(A) because they were allied offenses of similar import that were not committed separately or with a second animus as to each. (State v. Cabrales, 18 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, followed.) Judgment AFFIRMED in Part, Sentences VACATED,and cause REMANDED.

Sewell v. State (Feb. 27, 2009)(2009-Ohio-872)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-872.pdf
-  Where the petitioner had been classified as a sexually oriented offender under former R.C. Chapter 2950 and had been reclassified by the Attorney General as a Tier III sex offender under Am.Sub.S.B. No. 10 (“Senate Bill 10”), the trial court did not err in overruling the petitioner’s constitutional challenges to Senate Bill 10 because the retroactive application of Senate Bill 10’s tier-classification and registration requirements does not violate the prohibition on retroactive laws contained in Section 28, Article II of the Ohio Constitution, the Ohio Constitution’s Due Process Clause, the Double Jeopardy Clause of the Ohio Constitution, or the separation-of-powers doctrine. The retroactive application of Senate Bill 10’s tier-classification and registration requirements does not violate the constitutional ban on retroactive laws because a sex offender has no reasonable “settled expectation” or vested right cistration requirements imposed on him; R.C. Chapter 2950 is a remedial civil statute, and Senate Bill 10 establishes a remedial regulatory scheme for the purpose of protecting the public. Senate Bill 10 does not violate the Double Jeopardy Clause because the registration and notification provisions are remedial and not punitive, and because they do not have the effect of converting a remedial statute into a punitive one. Senate Bill 10 does not violate the separation-of-powers doctrine because it does not require the Attorney General to reopen final court judgments: It simply changes the classification and registration requirements for sex offenders and requires that the new procedures be applied to sex offenders currently registered under the old law; and because sex offenders have no reasonable expectation that their sex offenses will never be made the subject of future sex-offender legislation, Senate Bill 10 cannot be said to abrogate a final judicial determination. Senate Bill 10 does not violate the Due Process Clause because it does not deprive sex offenders of a protected liberty or property interest. Judgment AFFIRMED.
 

U.S. Sixth Circuit Court of Appeals:  Ohio Cases

 

USA v. Richard Boring (Feb. 27, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0075p-06.pdf
-  Defendant Richard Boring was convicted at trial of one count of mail fraud, eight counts of worker’s compensation fraud, and one count of making false statements to federal agents. See 18 U.S.C. §§ 1001, 1341, 1920. He appeals his conviction and, in the alternative, two aspects of his sentence: his two-point enhancement for obstruction of justice and the calculation of his restitution order. We affirm his conviction, which is supported by sufficient evidence, and his enhancement for obstruction, which follows logically from the jury verdict. But we reverse the restitution award and remand the case for resentencing.
       

U.S. Sixth Circuit Court of Appeals: Other States Cases

 

USA v. Kanadi Ali (Feb. 27, 2009) (Appeal from W.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0073p-06.pdf
-  Defendant Kanadi Mohamed Ali appeals his conviction for knowingly making a false statement under oath relating to naturalization, citizenship, or registry of aliens in violation of 18 U.S.C. § 1015(a).1 The indictment charged that defendant Ali knowingly and falsely answered “no” to the question on his N-400 Application for Naturalization asking, “Have you ever . . . been married to more than one person at the same time?” The government contends that defendant Ali was married to more than one person at the same time because he married Paula Sweet in Georgia before his divorce to Farida Bouhiaoui in Canada became final. Defendant Ali counters that his answer was truthful as a matter of law because his attempted marriage to Sweet was “void ab initio” under state bigamy laws which void attempted second marriages when the first has not yet been dissolved. Ali entered a conditional plea of guilty to the charge under Federal Rule of Criminal Procedure 11(a)(2),2 while reserving the right to appeal the district court’s rulings (1) denying his motion to dismiss the indictment and (2) granting the government’s motion to exclude his “mistake of law defense.” For the reasons that follow, we affirm the district court’s denial of the motion to dismiss the indictment, reverse the district court’s grant of the government’s motion to exclude the “mistake of law” defense, and remand for further proceedings.

Hamdi Al Khalili v. Eric H. Holder, Jr. (Feb. 27, 2009) (Appeal from Board of Immigration Appeals )
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0074p-06.pdf
-  Petitioner Hamdi Al Khalili appeals the order by the Board of Immigration Appeals (“BIA”) affirming the immigration judge’s final order of removal to Jordan. The immigration judge rendered her decision on June 23, 2006, denying Khalili’s application becauparticular social group and because he did not show that the Jordanian government was unwilling or unable to control the non-governmental actors who he alleged would seek to harm him. Khalili appealed to the BIA. The BIA affirmed, concluding that Khalili had failed to demonstrate the inability or unwillingness of his government to protect him. Khalili now petitions for review of the BIA’s decision. He argues that the BIA’s determination that he did not belong to a particular social group, such that he would face persecution if he were forced to return to Jordan, was arbitrary and capricious. He also argues that the BIA erred in finding that he had not established a prima facie case of eligibility for asylum based on its reading of Jordan’s official stance on honor killings. The Government argues that this Court lacks jurisdiction to consider Khalili’s claim because he failed to exhaust his administrative remedies. In the alternative, the Government argues that substantial evidence supports the BIA’s decision. For the reasons set forth below, we find that BIA actions exhausted Khalili’s administrative remedies by sua sponte raising and ruling on the immigration judge’s determination regarding the Jordanian government. Thus, this Court has jurisdiction to consider Khalili’s appeal of that issue. However, this Court also finds that substantial evidence supports the BIA’s determination that Khalili failed to show that the Jordanian government was unable or unwilling to protect him and his family. We therefore DENY Khalili’s petition for review.
 

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