*1 court. ceeding before the district See 18 acknowledges that it would errors. C&MI 3664(e). § It will receive a court to a U.S.C. impose appropriate be 3571(c). second chance. $500,000. § See 18 U.S.C. fine of that it admitting while government, The this record con- government The admits burden before the dis- failed meet its to tains no evidence amount of court, remand the case trict asks that we by Henry’s suffered estate. pecuniary loss try again. argues C&MI so that it can be therefore cannot awarded. Restitution that is improper. 3571(c). § The maximum See 18 U.S.C. $500,000. fine is may not generally government on remand when present new evidence $500,000 fine to We MODIFY the required reversal due failure to is restitution award. The VACATE the originally. present evidence sentence, judgment conviction (2d Archer; 149, 168-69 Cir. modified, are AFFIRMED. 2011). points to three government disregarding gener justify
factors that First, crimi
al rule. the record another party was not a
nal to which C&MI case Next, finding.1
supports the loss C&MI object
failed to the sentence before the Third, due to the death of
district court. judge, impos “it
the district court juncture sible at this new district UNITED STATES judge the basis for the fine explain
imposed.” first admission that Gary CLAY, Defendant-Appellant. chance to government prove had a during original proceed amount loss
ing the district court. The second before United States Court precedents. litigant When a misreads our Circuit. Sixth object in the district fails April usually return the case but does plain reviews for error. Before: MOORE and Whitelaw, MARBLEY, Judges; District merely recognizes The third factor Judge.* explained. fine cannot now be factors, singularly togeth These either ORDER er, fail to show that this case involves government The court received special circumstances. banc, petition having in the pro-
failed to meet its burden
first
suggested
appellate
argument,
government
C&MI’s
parties’
$2
briefs state that a
Both
Henry
joint
award to the
estate
have been
obligation
million restitution
would
restitution
Honey-
sentencing
was entered in the 2007
Honeywell's.
and several with
events,
well
record was
for the same
*
Marbley,
Algenon L.
The Honorable
sentencing
the award.
made at that
Judge
Southern
for the
District
District
Nothing
that record was
from
introduced
Ohio,
designation.
sitting by
sentencing. We
the C&MI
note that at oral
*2
original only
to the
that
been circulated
because
is the standard the Su-
preme Court has told us to use for evi-
panel
but also to all other active
members
decisions,
dentiary
but also because the
major-
than a
judges of this
less
primarily upon
determination rests
ity
judges
sug-
favored the
superior understanding
gestion,
petition
rehearing
has
the issues
and evidence
trial. See
original
panel.
been referred
Gen. Elec. Co. v.
522 U.S.
panel
has further reviewed the peti-
118 S.Ct.
have reviewed this determination for an Court has encountered the (and affirmed), abuse of discretion same situation in an analogous context. In See, e.g., Murphy, United 241 F.3d and Mack the three-tiered standard of (6th Cir.2001) (applying review, errant”); they are United States v. review); Mack, United States v. 258 F.3d (6th Cir.2008) (apply 516 F.3d 553 n. 1 (disagreeing that "we review); ing de novo United States v. Hem should review de novo the district court’s de bree, cision that the evidence was admissible for a 2008) (same); United States v. proper purpose”); Haywood, United States v. (6th Cir.2010) (applying abuse- (rejecting review); Allen, of-discretion precisely the standard of review that the ma (6th Cir.2010) (noting 524 n. 2 case); jority employed in this "repudiated this circuit has the three- Perry, Cir.2006) (ap tiered standard of review for Rule de review); plying de novo States Mat Joinery, light terminations of” thews, (same); Ayoub, review); (applying abuse-of-discretion Heard, Love, 464 Fed. 2007) ("This at *4 precedent court’s is inconsistent 29, 2012) (disagreeing applies,” what standard of review but Haywood Ayoub, "to the extent that cases after Corporation, “heightened Gell v. Hartmarx abuse-of-discre Cooter & instance, in reviewing tion the Court addressed standard” admission 404(b)). appeals “whether the court of evidence cir *3 (sometimes split are legal internally) must to the district court’s cuits also defer 11 proceedings[,]” essentially in Rule on same issue the context conclusions evidentiary Compare of is otherwise of other rules. Unit where the standard review 384, Tatum, 401, 110 No. 462 abuse discretion. 496 U.S. ed v. Fed. of (1990). (6th 606, 573959, 2447, 602, 2012 at Appx. And WL *3 S.Ct. 359 2012) (“[W]e that, 23, and factual Feb. de legal the Court held Cir. review novo “ require legal questions alike that ‘fact-inten the court’s ultimate conclusion that ” calls,’ sive, should a “uni as close the statements be received non- at tary hearsay”) Ferguson, standard.” Id. abuse-of-discretion and United States v. (citation omitted). 403, (2d Cir.2011) 404, 260, 110 2447 S.Ct. F.3d 285 (applying 676 whether bad-acts evidence de novo review whether proper purpose was admitted for a hearsay) v. evidence is and Mahone Leh 404(b) man, Rule is such an issue. 1171 “to (applying de novo review ‘construction issue, legal of a in a mere tincture (citation omitted)) hearsay rule’” factual, question predominately should not Brawn, with United States v. the deference we enough vaporize (1st Cir.2012) (reviewing 22 admission of is no owe the district court. And there hearsay purported for an abuse of discre disputing pre that the issues tion) Tran, and v. 568 United States F.3d predominantly fac sented in this case are Cir.2009) (9th (reviewing 1162 for an out, it is a circuit tual. As turns there of abuse discretion decision that a compare United States issue: hearsay) statement is admissible and (3d Cir.2010) Green, v. 239 v. Lopez-Garcia, United States 98- de to a district novo review (10th *2 of court’s determination Aug. (applying abuse-of-discre 404(b)) and States v. tion review decision whether evidence Akin, Cir. Roadway v. curiam) (same) hearsay) Trepel Ex 2006)(per and United Inc., (8th press, Plumman, 409 F.3d Cir.2005) (rejecting de novo review of dis (applying de novo review to the “ trict court’s decision whether evidence is ‘interpretation appli ” (citation 404(b) omitted)) Echo, compare hearsay); inadmissible also cation’ of Rule Hite, Irrigation, Inc. v. Machs. v. Timberland & Cir.2011) (re Inc., n. 10 vacated on other admissibility of grounds by viewing de novo the testi U.S. (2005) (rejecting mony lay opinion) with United States v. L.Ed.2d issue) Jayyousi, review same (1st 2011) Gilbert, 229 F.3d abuse-of-discretion review
Cir.2000) that, admissibility (holding “ruling regarding unless lay testimony”) “misapprehended scope agent’s and United [Rule 404(b) El-Mezain, ],” application “we review its Cir.2011) (same). perhaps evi So eventu proffered Rule[ ] discretion”); ally will remind us dence for an abuse see Court Osorio, the prop Fed. that “abuse of discretion is also United States curiam) (per standard of review of er evidentiary rulings.”
141, 118 S.Ct. 512. UNITED STATES
The second intra-circuit conflict con- showing necessary cerns the evi- to admit prior dence of a defendant’s crimes under Anthony RAUPP, Defendant-Appellant. years, Rule For for ad- the test mitting such evidence had been whether conduct in prior defendant’s crime Court “sufficiently analogous was *4 Seventh Circuit. inference” that the defendant intended to engage similar conduct in the events Argued Nov. 2011. giving pending rise to the case. Unit- Decided March Benton, ed States v. (6th Cir.1988). That test was flexi- more Opinion April Amended ble—and thus easier to meet—than the test announced States (6th Cir.2008). There,
held that evidence is admissi-
ble if the prior “part crime was
same scheme involved a similar modus
operandi[.]” Here, majori- at 443. Id.
ty test, applied the Bell whereas would
have applied the Benton one—which other
circuits well. See United States
v. LeCroy,
Cir.2006); Shadletsky, (5th Cir.1974). But the relevant is that we have
one after another disagreeing with
each other as to which of these tests con- practical
trols.2 The result should be in-
tolerable: in our circuit even the most
conscientious district-court judge cannot
tell what the is on law
I respectfully dissent from the denial of
rehearing.
2. See Stephens, 2011) Bell)-, Avalos, Bell)-, Freeman, 412 Fed.Appx. at *2-3 test); (applying pre-Bell see also United “Bell is prior precedent inconsistent with and is ("Our precedents are hard to reconcile controlling”; therefore not point”). Delaney,