Tribe law - RICO, embezzlement.
No genuine issue of nonjusticibility, as the actions specified in the indictment appear to be outside of tribal law.
Itemization of fraudulent contacts is insufficient for 9(b) pleading specificity -- a theory of the specific fraud must also be outlined.
http://media.ca11.uscourts.gov/opinions/pub/files/201412115.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Ninth Circuit: Gabriel Almanza-Arenas v. Loretta E. Lynch
Immigration - predicates. En banc.
A California vehicle theft statute describes an offense that may be committed with the specific intent to borrow the car or take the car permanently, not two offenses with distinct elements. It is therefore not categorically a crime of moral turpitude for the purposes of immigration enforcement.
Concurrence (4) - Correct according to the law, but the constant categorical/modified categorical rebalancing isn't intrinsically just.
Concurrence in J: The statute is divisible.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/09-71415.pdf
A California vehicle theft statute describes an offense that may be committed with the specific intent to borrow the car or take the car permanently, not two offenses with distinct elements. It is therefore not categorically a crime of moral turpitude for the purposes of immigration enforcement.
Concurrence (4) - Correct according to the law, but the constant categorical/modified categorical rebalancing isn't intrinsically just.
Concurrence in J: The statute is divisible.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/09-71415.pdf
Ninth Circuit: USA v. Samuel Navarette-Aguilar
Drugs - Sentencing, Conspiracy.
A jury cannot speculate that events outside scope of proof would have allowed the total amount of drugs to rise to the level contemplated by the statute.
Deft's witness opened the door for prior bad acts.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/14-30056.pdf
A jury cannot speculate that events outside scope of proof would have allowed the total amount of drugs to rise to the level contemplated by the statute.
Deft's witness opened the door for prior bad acts.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/28/14-30056.pdf
Ninth Circuit: Robert McDaniels v. Richard Kirkland
En Banc -- Habeas, Batson, scope of review
Clearly established constitutional law did not require an appeals court evaluating a collateral Batson challenge to engage in comparative juror analysis.
Court did not conflate the analysis of the prosecutors' justifications with the analysis of the trial court's acceptance of the justifications.
While the court evaluating the state writ was not compelled to engage in comparative juror analysis, comparative juror analysis in the Federal collateral challenge can reveal an unreasonable application of facts in the state proceeding.
Evidence before a state trial court not introduced at state collateral proceedings doesn't implicate Pinholster.
Remanded to panel to determine if unreasonable application of facts.
Concur (3):
No substantive change in the law in the interval requiring comparative juror analysis in state Habeas.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/24/09-17339.pdf
Clearly established constitutional law did not require an appeals court evaluating a collateral Batson challenge to engage in comparative juror analysis.
Court did not conflate the analysis of the prosecutors' justifications with the analysis of the trial court's acceptance of the justifications.
While the court evaluating the state writ was not compelled to engage in comparative juror analysis, comparative juror analysis in the Federal collateral challenge can reveal an unreasonable application of facts in the state proceeding.
Evidence before a state trial court not introduced at state collateral proceedings doesn't implicate Pinholster.
Remanded to panel to determine if unreasonable application of facts.
Concur (3):
No substantive change in the law in the interval requiring comparative juror analysis in state Habeas.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/24/09-17339.pdf
Ninth Circuit: USA v. Xochitl Cisneros-Rodriguez
Immigration, due process.
As an administrative officer can terminate an administrative proceeding in favor of a judicial proceeding, a waiver of legal representation to pursue a plausible claim of relief is invalidated by an affirmative misrepresentation by the administrative officer.
Dissent: District court made adverse credibility finding against the claim of misrepresentation. Petitioner might have otherwise obtained relief in interval.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/23/13-10645.pdf
As an administrative officer can terminate an administrative proceeding in favor of a judicial proceeding, a waiver of legal representation to pursue a plausible claim of relief is invalidated by an affirmative misrepresentation by the administrative officer.
Dissent: District court made adverse credibility finding against the claim of misrepresentation. Petitioner might have otherwise obtained relief in interval.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/23/13-10645.pdf
Sixth Circuit: In re: Windy Watkins
Sentencing -- Johnson's retroactivity on collateral review.
Second/successive Habeas petition challenging sentence imposed under ACCA residual clause permitted, as Supreme Court ruling holding the clause unconstitutionally vague was explicitly made retroactive for cases on collateral review.
http://www.ca6.uscourts.gov/opinions.pdf/15a0295p-06.pdf
Second/successive Habeas petition challenging sentence imposed under ACCA residual clause permitted, as Supreme Court ruling holding the clause unconstitutionally vague was explicitly made retroactive for cases on collateral review.
http://www.ca6.uscourts.gov/opinions.pdf/15a0295p-06.pdf
Fifth Circuit: Helen Allen, et al v. C & H Distributors, L.L.C.,
Judicial estoppel & tort.
A party is judicially estopped from bringing a post-petition injury claim if they do not notify the Trustee of the claim.
A subsequent filing of the suit by a Trustee is not governed by the statute of limitations.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30330-CV0.pdf
A party is judicially estopped from bringing a post-petition injury claim if they do not notify the Trustee of the claim.
A subsequent filing of the suit by a Trustee is not governed by the statute of limitations.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30330-CV0.pdf
Fifth Circuit: USA v. Mark Hebert
Sentencing, 5A, 6A, 8A.
92 year sentence for Bank Fraud under 70K upheld, due to murder established by preponderance in sentencing.
No clear error in the finding.
After plea deal, gov't filed second PSR, cross-referencing the murder.
Cross-reference to state law murder not substantively unreasonable, as the sentence could have been an independent upward variance in the primary offense.
No Fifth Amendment Due Process, Eighth Amendment, or Sixth Amendment violation, as sentence was within statutory limits of the primary offense.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31405-CR0.pdf
92 year sentence for Bank Fraud under 70K upheld, due to murder established by preponderance in sentencing.
No clear error in the finding.
After plea deal, gov't filed second PSR, cross-referencing the murder.
Cross-reference to state law murder not substantively unreasonable, as the sentence could have been an independent upward variance in the primary offense.
No Fifth Amendment Due Process, Eighth Amendment, or Sixth Amendment violation, as sentence was within statutory limits of the primary offense.
http://www.ca5.uscourts.gov/opinions/pub/14/14-31405-CR0.pdf
Fourth Circuit: Samuel Calderon v. GEICO General Insurance Company
FLSA for insurance investigators.
An employee who provides investigative services for a class of employees who are considered exempt on a case by case basis is not him or herself necessarily exempt. Relevant precedent in the public sector applies to the private sector as well.
Executives decision to the contrary was not willful and reckless, as they acted in opposition to legal precedent that was, according to their predictions, subsequently reversed.
Court correctly construed the contract as straight-time for hours worked.
Error under statute not to award prejudgment interest.
http://www.ca4.uscourts.gov/Opinions/Published/142111.P.pdf
An employee who provides investigative services for a class of employees who are considered exempt on a case by case basis is not him or herself necessarily exempt. Relevant precedent in the public sector applies to the private sector as well.
Executives decision to the contrary was not willful and reckless, as they acted in opposition to legal precedent that was, according to their predictions, subsequently reversed.
Court correctly construed the contract as straight-time for hours worked.
Error under statute not to award prejudgment interest.
http://www.ca4.uscourts.gov/Opinions/Published/142111.P.pdf
First Circuit: Limoliner, Inc. v. Dattco, Inc.
Contract interpretation, consumer protection - bus repairs.
Give that the analogous regulation relied upon is in the consumer protection portion of the code and the law in question is in the motor vehicle portion of the code, question on applicability of the law to businesses to business transactions certified to Massachusetts SJC.
Party's spoken stipulation that the work should be done "as soon as possible" is not a binding contractual term of performance.
No clear error in magistrate's holding that that work was timely performed.
Damages affirmed.
http://media.ca1.uscourts.gov/pdf.opinions/14-2188P-01A.pdf
Give that the analogous regulation relied upon is in the consumer protection portion of the code and the law in question is in the motor vehicle portion of the code, question on applicability of the law to businesses to business transactions certified to Massachusetts SJC.
Party's spoken stipulation that the work should be done "as soon as possible" is not a binding contractual term of performance.
No clear error in magistrate's holding that that work was timely performed.
Damages affirmed.
http://media.ca1.uscourts.gov/pdf.opinions/14-2188P-01A.pdf
First Circuit: Castaneda v. Souza
Immigration - AG's detention mandate. Statutory interpretation, En banc, 107 pp.
3-1-3 split. District courts decision requiring bond hearings for aliens affirmed, in line with the first opinion, viz:
(3)
When an antecedent portion of a statute refers to an entity later described in the statute, it is assumed that the full modifier is incorporated in the later reference, i.e., a statute referring to an alien as described above refers to the type of alien described above, and not aliens generally, some of whom fall into the category described above, and some of whom don't.
Chevron analysis, TKO'd on step one - agency adjudication deserves no deference, as the statute isn't ambiguous.
Additionally, as agency only decided whether statute's requirements attach on release or after release, there is no agency guidance on relative duration of release.
Loss-of-authority canon.
(1)
Concurrence in J.
14A bars indefinite detention without access to bail or bond of anybody in the US. Yick Wo.
(3)
Dissent
Statutory interpretation - the adverbial modifier in the previous clause shouldn't attach to the second clause.
Circuit split flagged.
Legislative intent, surplussage.
Where a statutory mandate is not implemented, a second clause referring to the entities in the mandate continues to describe them as as an independent referent, though not acted upon by the terms of the previous mandate.
Constitutional avoidance.
http://media.ca1.uscourts.gov/pdf.opinions/13-1994P2-01A.pdf
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