Tax, FrCrimP
No error in joining tax crimes with fraud crimes in the indictment, as prejudice was speculative.
Comment elicited on cross about hypothetical silence of deft didn't violate 5A, shift burdens.
Where deft has in the past opened credit accounts for family, doing so with unlawful intent suffices for statutory bar on knowingly opening the account with unlawful authority.
No plain error in court's determining amount of fraud based on scope of fraud versus funds deposited by deft.
Leadership enhancement upheld.
http://media.ca11.uscourts.gov/opinions/pub/files/201410009.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.
Eleventh Circuit: In re: Anthony Johnson
Habeas, AEDPA
30 Day limit for consideration of second or successive petitions is advisory, not jurisdictional.
Johnson retroactivity: petition held in abeyance pending S.Ct. ruling.
http://media.ca11.uscourts.gov/opinions/pub/files/201610011.order.pdf
30 Day limit for consideration of second or successive petitions is advisory, not jurisdictional.
Johnson retroactivity: petition held in abeyance pending S.Ct. ruling.
http://media.ca11.uscourts.gov/opinions/pub/files/201610011.order.pdf
Eleventh Circuit: Dan Carmichael McCarthan v. Warden, FCC Coleman - Medium
Habeas
S. Ct. holding that state escape statute is not categorically a violent crime for purposes of the ACCA predicate conviction is a substantive change in the law to be made retroactively available on collateral review.
Circuit precedent that escape was a violent crime for purposes of one statute had a preclusive effect on whether it was a crime of violence with reference to another statute.
Very complex - here's our best guess: Access to S2241 Habeas depends on there being no effective remedy by a Habeas claim on motion. Where a deft has multiple potential predicates in the PSR and the indictment only lists three, but neither the sentencing court nor the PSR identifies the ones to be used in the ACCA enhancement, all potentially valid predicates are counted against the deft in considering jurisdiction for a S2241 writ unless petitioner can affirmatively establish that prior Habeas on motion would have been ineffective against the uncharged predicates. The argument that a challenge to a predicate was waived for procedural default, however, is a an affirmative defense on the merits - the relevant jurisdictional question for the S2241 writ is whether the writ on motion would have been an effective challenge.
[Again, don't rely on any of this for anything.]
Concurrence: No access to writ, as alternate bases for the enhancement establish that sentencing court did not rely on the challenged offense.
http://media.ca11.uscourts.gov/opinions/pub/files/201214989.pdf
S. Ct. holding that state escape statute is not categorically a violent crime for purposes of the ACCA predicate conviction is a substantive change in the law to be made retroactively available on collateral review.
Circuit precedent that escape was a violent crime for purposes of one statute had a preclusive effect on whether it was a crime of violence with reference to another statute.
Very complex - here's our best guess: Access to S2241 Habeas depends on there being no effective remedy by a Habeas claim on motion. Where a deft has multiple potential predicates in the PSR and the indictment only lists three, but neither the sentencing court nor the PSR identifies the ones to be used in the ACCA enhancement, all potentially valid predicates are counted against the deft in considering jurisdiction for a S2241 writ unless petitioner can affirmatively establish that prior Habeas on motion would have been ineffective against the uncharged predicates. The argument that a challenge to a predicate was waived for procedural default, however, is a an affirmative defense on the merits - the relevant jurisdictional question for the S2241 writ is whether the writ on motion would have been an effective challenge.
[Again, don't rely on any of this for anything.]
Concurrence: No access to writ, as alternate bases for the enhancement establish that sentencing court did not rely on the challenged offense.
http://media.ca11.uscourts.gov/opinions/pub/files/201214989.pdf
Eighth Circuit: United States v. Joshua Welch
Fourth Amendment
30 Day time period for notification of warrant ran from execution of warrant, not identification of the subject.
No clear error in holding the error harmless, given good faith and lack of prejudice.
Barring use of prior affidavit on cross was harmless error, if error.
http://media.ca8.uscourts.gov/opndir/16/01/151993P.pdf
30 Day time period for notification of warrant ran from execution of warrant, not identification of the subject.
No clear error in holding the error harmless, given good faith and lack of prejudice.
Barring use of prior affidavit on cross was harmless error, if error.
http://media.ca8.uscourts.gov/opndir/16/01/151993P.pdf
Eighth Circuit: National Parks Conservation v. EPA
Administrative, environment
Circuit has statutory jurisdiction over challenge to local component of national plan.
Offsets plan upheld as not arbitrary and capricious.
Rational basis for agency modification of statutory goals.
Concur in J: No circuit jurisdiction over national plan.
http://media.ca8.uscourts.gov/opndir/16/01/122910P.pdf
Circuit has statutory jurisdiction over challenge to local component of national plan.
Offsets plan upheld as not arbitrary and capricious.
Rational basis for agency modification of statutory goals.
Concur in J: No circuit jurisdiction over national plan.
http://media.ca8.uscourts.gov/opndir/16/01/122910P.pdf
Seventh Circuit: Larry Nelson v. City of Chicago
FRE
Admission of plaintiff's prior arrests on the theory that they spoke to his good law-abiding citizenship was error; also not probative of damages mitigation on 4A claim
Admission of plaintiff's prior lawsuits against the city error, as it didn't contradict testimony at trial; also not cured by limiting instruction.
Admission of police officer's extended hypothetical as to reasons for drawing a weapon in a traffic stop was error.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:12-3401:J:Sykes:aut:T:fnOp:N:1689820:S:0
Admission of plaintiff's prior arrests on the theory that they spoke to his good law-abiding citizenship was error; also not probative of damages mitigation on 4A claim
Admission of plaintiff's prior lawsuits against the city error, as it didn't contradict testimony at trial; also not cured by limiting instruction.
Admission of police officer's extended hypothetical as to reasons for drawing a weapon in a traffic stop was error.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:12-3401:J:Sykes:aut:T:fnOp:N:1689820:S:0
Seventh Circuit: Smith, Keith v. Sipi, LLC
Bankruptcy, standing
State tax sale isn't a transfer for value, as the purchasers bid on the lien obligation without explicit reference to the value of the property.
Both parties have standing, where one was the initial plaintiff, and the other was later joined prior to their divorce, which left the joined plaintiff with sole rights in the property but other issues unresolved.
Plaintiff's recovery limited to homestead exception.
Purchaser of the lien obligation was the initial transferee, as the state merely facilitated the transfer.
Second purchaser had no constructive knowledge of fraudulence of transfer in the circumstances.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:15-1166:J:Hamilton:aut:T:fnOp:N:1689637:S:0
State tax sale isn't a transfer for value, as the purchasers bid on the lien obligation without explicit reference to the value of the property.
Both parties have standing, where one was the initial plaintiff, and the other was later joined prior to their divorce, which left the joined plaintiff with sole rights in the property but other issues unresolved.
Plaintiff's recovery limited to homestead exception.
Purchaser of the lien obligation was the initial transferee, as the state merely facilitated the transfer.
Second purchaser had no constructive knowledge of fraudulence of transfer in the circumstances.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:15-1166:J:Hamilton:aut:T:fnOp:N:1689637:S:0
Fourth Circuit: USA v. Wendy Annette Moore
Crim
No variance from indictment when a court instructs according to both prongs of a statute when the indictment only charged one prong of the statute.
The trustworthiness of a statement against interest hearsay exception refers to the statement actually made, not the trustworthiness of the reporting. No confrontation clause issue in statement to fellow detainee.
No plain error in admission of statements of prior bad acts/character, as gov't was required to correct.
http://www.ca4.uscourts.gov/Opinions/Published/144645.P.pdf
No variance from indictment when a court instructs according to both prongs of a statute when the indictment only charged one prong of the statute.
The trustworthiness of a statement against interest hearsay exception refers to the statement actually made, not the trustworthiness of the reporting. No confrontation clause issue in statement to fellow detainee.
No plain error in admission of statements of prior bad acts/character, as gov't was required to correct.
http://www.ca4.uscourts.gov/Opinions/Published/144645.P.pdf
First Circuit: Harrington v. Simmons
Crim, FRCrimP
Indictment not duplicative, as fraudulent schemes are inherently complex, and the scheme had a discrete sole desired outcome - a desire to score a run, not to hit a double and then steal two bases.
No variance from indictment given the diversity of interests of those who sustained losses, e.g., lenders, borrowers. No prejudice, as single theory.
The misstatements to lenders need only have a tendency to influence the lenders decisions to be considered material -- actual reliance need not be proven.
Given the structure and conduct of deft's organization, intent can be fairly inferred.
Court'd decision to deny funding for expert witness was without clear error, given concerns as to materiality and admissibility.
Where ten of the eleven counts are severed just before the case goes to the jury, a general directive to ignore the evidence offered in support of the counts sufficed.
Restitution challenge waived by spoken acceptance by counsel at trial, despite lack of victim statements.
http://media.ca1.uscourts.gov/pdf.opinions/14-1325P-01A.pdf
Indictment not duplicative, as fraudulent schemes are inherently complex, and the scheme had a discrete sole desired outcome - a desire to score a run, not to hit a double and then steal two bases.
No variance from indictment given the diversity of interests of those who sustained losses, e.g., lenders, borrowers. No prejudice, as single theory.
The misstatements to lenders need only have a tendency to influence the lenders decisions to be considered material -- actual reliance need not be proven.
Given the structure and conduct of deft's organization, intent can be fairly inferred.
Court'd decision to deny funding for expert witness was without clear error, given concerns as to materiality and admissibility.
Where ten of the eleven counts are severed just before the case goes to the jury, a general directive to ignore the evidence offered in support of the counts sufficed.
Restitution challenge waived by spoken acceptance by counsel at trial, despite lack of victim statements.
http://media.ca1.uscourts.gov/pdf.opinions/14-1325P-01A.pdf
First Circuit: US v. Manso-Cepeda
Bankruptcy
A denial of discharge due to insufficient record-keeping in the pre-petition period is not a strict liability standard, but can be offset by a justification that is objectively reasonable.
Claiming that the petitioner was not the true principal for the assets in question is insufficient basis for denying discharge based on the unexplained dissipation of assets.
http://media.ca1.uscourts.gov/pdf.opinions/15-9005P-01A.pdf
A denial of discharge due to insufficient record-keeping in the pre-petition period is not a strict liability standard, but can be offset by a justification that is objectively reasonable.
Claiming that the petitioner was not the true principal for the assets in question is insufficient basis for denying discharge based on the unexplained dissipation of assets.
http://media.ca1.uscourts.gov/pdf.opinions/15-9005P-01A.pdf
First Circuit: US v. Prieto
Crim - accessory
Sufficient evidence for conviction for accessory to use of a firearm where jury might have inferred deft's prior knowledge of possession and deft didn't stop the car and walk away after possession was revealed.
Challenge to jury instructions might have been more appropriate.
http://media.ca1.uscourts.gov/pdf.opinions/14-2068P-01A.pdf
Sufficient evidence for conviction for accessory to use of a firearm where jury might have inferred deft's prior knowledge of possession and deft didn't stop the car and walk away after possession was revealed.
Challenge to jury instructions might have been more appropriate.
http://media.ca1.uscourts.gov/pdf.opinions/14-2068P-01A.pdf
Subscribe to:
Posts (Atom)