The vehicle's innocent conduct created sufficiently particularized and objective reasonable suspicion for the stop, given the experience of the officers.
Special Concur: True according to precedent, but problematic to use innocent conduct as basis for border stops.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/16-50490.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: McCray v. Marriott
Where a labor right arises from a statute but is waived by a CBA, a challenge to the waiver is construed as a challenge to the statute, not to the CBA, making preemption removal inapposite and depriving the federal court of jurisdiction over the question of state law.
Dissent: It's about the CBA.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/17-15767.pdf
Dissent: It's about the CBA.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/17-15767.pdf
Eighth Circuit: Matthew Dickson v. Gospel for ASIA, Inc.
Arbitration agreement had sufficient mutuality in the counter-party's agreement to be bound.
Dissent: State law requires that, in order to create an enforceable agreement, both parties to an arbitration agreement must agree to arbitrate claims.
http://media.ca8.uscourts.gov/opndir/18/08/171191P.pdf
Dissent: State law requires that, in order to create an enforceable agreement, both parties to an arbitration agreement must agree to arbitrate claims.
http://media.ca8.uscourts.gov/opndir/18/08/171191P.pdf
Seventh Circuit: Estate of Derek Williams, Jr. v. Jeffrey Cline
Remand of interlocutory review of denial of qualified immunity in order for the court below to make factual findings as to the defts' specific conduct.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-31/C:17-2603:J:Ripple:dis:T:fnOp:N:2211195:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-31/C:17-2603:J:Ripple:dis:T:fnOp:N:2211195:S:0
Seventh Circuit: USA v. Napoleon Foster
A conviction for using a firearm in the course of a robbery precludes increasing the underlying sentence for the robbery itself for explosive or weapons threats, even when those threats are unconnected to the firearm used in the robbery.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-31/C:17-3236:J:Scudder:aut:T:fnOp:N:2211361:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-31/C:17-3236:J:Scudder:aut:T:fnOp:N:2211361:S:0
Fifth Circuit: Joseph Zadeh, et al v. Mari Robinson, et al
While the medical profession generally is not a closely regulated industry for the purpose of determining the legitimate expectation of privacy of its members, pain management clinics might be a different case. Grant of qualified immunity upheld, as the scope of legitimate targets of administrative subpoenas was not clearly defined at the time.
Search not pretextual, as it was not conducted entirely to uncover criminality.
Court appropriately prudentially declined to hear application to stay state medical board's investigation, which can be considered a judicial proceeding.
Supervisor who acted according to the usual practices of the department was not deliberately indifferent to the potential harms of subdelegation.
Concur dubitante: @justicewillett -- QI problematic.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50518%20-CV0.pdf
Search not pretextual, as it was not conducted entirely to uncover criminality.
Court appropriately prudentially declined to hear application to stay state medical board's investigation, which can be considered a judicial proceeding.
Supervisor who acted according to the usual practices of the department was not deliberately indifferent to the potential harms of subdelegation.
Concur dubitante: @justicewillett -- QI problematic.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50518%20-CV0.pdf
Fifth Circuit: Marcus Mote v. Debra Walthall
Employees' rights of expressive association and freedom of speech in forming association for mutual aid and support is protected under the First Amendment whether or not state law will permit the association to become an exclusive bargaining agent for the employees. Denial of qualified immunity upheld, as this was clearly established at the time.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40754-CV1.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-40754-CV1.pdf
Third Circuit: Theodore Hayes v. Philip Harvey
Statute providing that a tenant receiving federal assistance may elect to remain in the housing under a different assistance program if the landlord opts out of the first assistance program creates a right to lease renewal absent good cause enforceable against any purchaser of a property currently rented to participants in the first assistance program.
Deference to agency's interpretation according to the power to persuade; remand to determine what constitutes good cause for nonrenewal.
http://www2.ca3.uscourts.gov/opinarch/162692p1.pdf
Deference to agency's interpretation according to the power to persuade; remand to determine what constitutes good cause for nonrenewal.
http://www2.ca3.uscourts.gov/opinarch/162692p1.pdf
End of Day:
More:
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:16-3430:J:Wood:dis:T:fnOp:N:2210484:S:0
http://media.ca8.uscourts.gov/opndir/18/08/171382P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171914P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172724P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172726P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/16-71933.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/16-35991.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/15-73603.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201710944.pdf
-CB
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:16-3430:J:Wood:dis:T:fnOp:N:2210484:S:0
http://media.ca8.uscourts.gov/opndir/18/08/171382P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171914P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172724P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172726P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/16-71933.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/16-35991.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/15-73603.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201710944.pdf
-CB
Seventh Circuit: Milton v. Boughton
Although the evidence from the uncounseled lineup was not properly admissible, petitioner was not prejudiced from the admission, given the other eyewitness identifications.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:17-1910:J:PerCuriam:aut:T:fnOp:N:2210678:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:17-1910:J:PerCuriam:aut:T:fnOp:N:2210678:S:0
Seventh Circuit: Anthony Kaminski v. Nancy Berryhill
Panel rehearing order with request for edited opinion by agency head.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:17-3314:J:PerCuriam:aut:T:orCo:N:2210668:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:17-3314:J:PerCuriam:aut:T:orCo:N:2210668:S:0
Sixth Circuit: United States v. Kurt Mallory
Court did not abuse its discretion in finding that a witness was unavailable, since although the medical records were old, they indicated chronic conditions, and while the witness was earlier produced to the courtroom from the local jail, he was home-bound at the time of the trial.
No Confrontation Clause issue where the evidence that emerged after the deposition of the later-unavailable witness might have been presented at trial to attack the witness' credibility.
Although handwriting analysis does not have significant empirical support, it is a field of specialized expertise that might be useful to the finder of fact.
Error for judge to weigh motion to set aside the verdict as an objective question of sufficiency of the evidence, as the correct question was whether the judge subjectively understood the verdict to be against the weight of the evidence.
Sixth Circuit: League of Women Voters of Mich. v. Ruth Johnson
Elected representatives' interest in preserving relationships with their constituents merited permission to intervene in a redistricting action, as the interest was distinct from the interests represented by the other plaintiffs. In appellate review of the decision to deny permissive intervention, the equitable factors balanced are those prevailing at the time of the original decision to deny intervention.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0194p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0194p-06.pdf
Fifth Circuit: USA v. Carlos Fuentes-Canales
Although petitioner's sentence was flawed in that it counted a state statute as its generic federal equivalent, since the special verdict form required that the jury have found that either all the elements of the generic offense or all the elements of another generic offense had been met, the error in sentencing does not merit reversal for reasons of fairness or judicial integrity.
http://www.ca5.uscourts.gov/opinions/pub/15/15-41476-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/15/15-41476-CR0.pdf
Third Circuit: USA v. Theodore Clark, III
Traffic stop was in violation of the Fourth Amendment, as the questioning into criminal history continued past the point at which the computerized driver's licence check had been completed.
http://www2.ca3.uscourts.gov/opinarch/172739p.pdf
http://www2.ca3.uscourts.gov/opinarch/172739p.pdf
First Circuit: Narragansett Indian Tribe v. RI Dep't of Transportation
Sovereign immunity bars claim arising from highway construction, as the private right of action in the Act exists only to enforce the Act, not to challenge the program-based decisions of the agency.
Federal court does not have jurisdiction over a breach of contract suit against a state unless the claim states a disputed and substantial federal issue, and prudential factors are favorable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1951P-01A.pdf
Federal court does not have jurisdiction over a breach of contract suit against a state unless the claim states a disputed and substantial federal issue, and prudential factors are favorable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1951P-01A.pdf
First Circuit: Lemelson v. Bloomberg L.P.
News organization's pre-publication fact checking and investigation did not justify a finding of actual malice, as comment was sought from the investigating agency, and the fact that the agency's investigation centered on a company and not the plaintiff didn't make it less likely that the plaintiff was under investigation.
End of day
More here:
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0192p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0193p-06.pdf'
'
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-29/C:17-3196:J:Wood:aut:T:fnOp:N:2210037:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-29/C:17-1399:J:Rovner:aut:T:fnOp:N:2210117:S:0
http://media.ca8.uscourts.gov/opndir/18/08/164372P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171327P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171414P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172612P.pdf
Also 9, 10 & 11th.
-CB
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0192p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0193p-06.pdf'
'
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-29/C:17-3196:J:Wood:aut:T:fnOp:N:2210037:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-29/C:17-1399:J:Rovner:aut:T:fnOp:N:2210117:S:0
http://media.ca8.uscourts.gov/opndir/18/08/164372P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171327P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171414P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172612P.pdf
Also 9, 10 & 11th.
-CB
Fifth Circuit: SCF Waxler Marine, L.L.C., et al v. Aris T M/V, et al.
Appellate court does not have jurisdiction over an interlocutory appeal challenging the trial court's holding that contractually, the excess insurers liability under the state's direct recovery statute is limited to the insured vessel.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30805-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-30805-CV0.pdf
Fifth Circuit: Swinterton Builders v. Oklahoma Surety
Insurer had duty to defend, since the written agreement establishing the company as an insured party did not need to be countersigned by the company to be a written agreement; the company's consent can be inferred.
Where the claim is for breach of contract, an insurer still has a duty to defend against a claim for property damage where the factual situation alleged might present a claim for property damage.
Whether or not anti-stacking provisions apply to duty to defend, it would be inequitable to apply them here.
Damages in suit where insurer breached duty to defend qualify for state statute requiring prompt payment for the schedule.
Damages can be recovered under statute regardless of independent injury from the lack of payment.
http://www.ca5.uscourts.gov/opinions/pub/16/16-20195-CV1.pdf
Where the claim is for breach of contract, an insurer still has a duty to defend against a claim for property damage where the factual situation alleged might present a claim for property damage.
Whether or not anti-stacking provisions apply to duty to defend, it would be inequitable to apply them here.
Damages in suit where insurer breached duty to defend qualify for state statute requiring prompt payment for the schedule.
Damages can be recovered under statute regardless of independent injury from the lack of payment.
http://www.ca5.uscourts.gov/opinions/pub/16/16-20195-CV1.pdf
Third Circuit: Ronald Cup v. Ampco Pittsburgh Corp
An order compelling arbitration, when issued while dismissing all counts in the present action, is sufficiently final for appeal.
Absent an explicit mention, employees who retired before the CBA are not integrated in the CBA by references to other documents without an attempt to incorporate them. As the arbitration provision requires that the matters arise under the CBA, it was error to compel arbitration.
http://www2.ca3.uscourts.gov/opinarch/172349p.pdf
Absent an explicit mention, employees who retired before the CBA are not integrated in the CBA by references to other documents without an attempt to incorporate them. As the arbitration provision requires that the matters arise under the CBA, it was error to compel arbitration.
http://www2.ca3.uscourts.gov/opinarch/172349p.pdf
First Circuit: Campbell v. Ackerman
As deft shifts the argument from actual innocence to an unjustified use of force during the search, trial court's exclusion of testimony as to irregularities in the search warrant is prudentially upheld, as the second argument was not raised squarely below.
Where the trial court found no liability, a claim of error in the damages testimony is moot.
http://media.ca1.uscourts.gov/pdf.opinions/17-1927P-01A.pdf
Where the trial court found no liability, a claim of error in the damages testimony is moot.
http://media.ca1.uscourts.gov/pdf.opinions/17-1927P-01A.pdf
First Circuit: Perry v. Spencer
Qualified immunity for prison officials in suit challenging placement of inmate in segregation cells, as it was unclear at which point the due process interest arose, and safety concerns allow prison officials considerable discretion in scheduling adversarial challenges to administrative decisions.
http://media.ca1.uscourts.gov/pdf.opinions/16-2444U-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/16-2444U-01A.pdf
End of day
The pace, it must increase. Look for increased coverage in coming days, if you're reading this. Which you shouldn't be, as it shouldn't be relied upon for anything.
Other precedential holdings on 8/28
http://www2.ca3.uscourts.gov/opinarch/171990p.pdf
http://www2.ca3.uscourts.gov/opinarch/163346p.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0190p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0191p-06.pdf
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-28/C:17-2132:J:Easterbrook:aut:T:fnOp:N:2208964:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-28/C:17-2920:J:Barrett:aut:T:fnOp:N:2209369:S:0
http://media.ca8.uscourts.gov/opndir/18/08/164275P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/164440P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171300P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172296P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/16-55249.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/16-50096.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17517.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17517.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17497.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201711742.pdf
-CB
Other precedential holdings on 8/28
http://www2.ca3.uscourts.gov/opinarch/171990p.pdf
http://www2.ca3.uscourts.gov/opinarch/163346p.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0190p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0191p-06.pdf
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-28/C:17-2132:J:Easterbrook:aut:T:fnOp:N:2208964:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-28/C:17-2920:J:Barrett:aut:T:fnOp:N:2209369:S:0
http://media.ca8.uscourts.gov/opndir/18/08/164275P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/164440P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171300P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172296P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/16-55249.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/16-50096.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17517.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17517.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17497.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201711742.pdf
-CB
Third Circuit: Clayton Tanksley v. Lee Daniels
Although the standard is the perception of a layman, where no reasonable juror could find substantial similarity in the allegedly infringing content, judgment as a matter of law for not stating a claim is appropriate.
Although similarities in unprotectable elements of the two works can be probative of allegations of actual copying, striking similarities in the concept for the protagonist do not make the superficial similarities in the protectable expression a violation of copyright.
http://www2.ca3.uscourts.gov/opinarch/172023p.pdf
Although similarities in unprotectable elements of the two works can be probative of allegations of actual copying, striking similarities in the concept for the protagonist do not make the superficial similarities in the protectable expression a violation of copyright.
http://www2.ca3.uscourts.gov/opinarch/172023p.pdf
Third Circuit: Craig Geness v. Jason Cox
An argument for equitable tolling must be raised in the opening appellate brief; otherwise, it's waived.
When inquiring as to whether a nolle prosequi was a favorable determination, a court must look beyond the four corners of the order.
Given an affidavit to the contrary and absent any deposition testimony, speculation that exculpatory evidence was known at the time was insufficient to present a genuine issue of material fact.
Claim of discrimination under federal law is a new and separate claim not barred by Rooker-Feldman after earlier state court adjudication relating to the events.
Motion to amend at summary judgment stage within a year of filing is presumptively timely.
Second Circuit: Empire Merchants, LLC, et al. v. Reliable Churchill, LLLP, et al.
Smuggling operation is a single conspiracy for the purposes of civil RICO, as the particularly pleaded effects all result from the single operation.
Assertion of actual and foreseeable economic loss is insufficient to state a civil RICO claim, since the predicate conduct must be the proximate cause of the harm, and many factors might have prompted the economic loss.
http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/doc/17-887_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/hilite/
Assertion of actual and foreseeable economic loss is insufficient to state a civil RICO claim, since the predicate conduct must be the proximate cause of the harm, and many factors might have prompted the economic loss.
http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/doc/17-887_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/hilite/
End of day
Really, a city that never sleeps should have some 24 hour coffeehouses. #itsleeps
Only 1 & 2 covered tonight. More in 5-10 and Federal Circuit. Cheers.
-CB
Only 1 & 2 covered tonight. More in 5-10 and Federal Circuit. Cheers.
-CB
Second Circuit: Olagues v. Perceptive Advisors LLC
Defts were no longer corporate insiders for the purposes of the statute when the options expired, since regardless of whether the regulations imposed an earlier constructive time cutoff for the expiration of the option, the plain meaning of the statute, which is to be favored for the ease of mechanical implementation, refers to the actual expiration time of the option.
http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/doc/17-2703_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/doc/17-2703_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/hilite/
Second Circuit: United States v. Le
Acquisition of biological toxin through the Internet and the mails is fundamentally different than the local use of a similarly proscribed substance, so a statute need not be construed to avoid offending the police power of the states.
Even within such a narrowing construction, acquisition of this substance would be within the plain proscription of the federal statute.
Law implementing international convention is constitutional under the Commerce Clause.
http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/doc/16-819_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/hilite/
Even within such a narrowing construction, acquisition of this substance would be within the plain proscription of the federal statute.
Law implementing international convention is constitutional under the Commerce Clause.
http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/doc/16-819_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/hilite/
First Circuit: Aguilar de Guillen v. Sessions
Immigration judge's finding that the persecution was economic in nature was not clearly erroneous in forgoing analysis of secondary and mixed motives, as the record indicates that mixed motives were considered, and nothing in the record suggests that either the judge or the agency understood the finding of economic motive to preclude a finding of secondary or mixed motives.
A social group of single mothers who cannot move from their region is insufficiently particular for consideration of the possibility of future persecution.
Bare claim that agency's data is dated is insufficient to make it arbitrary or capricious absent a showing of changed conditions.
http://media.ca1.uscourts.gov/pdf.opinions/17-2095P-01A.pdf
A social group of single mothers who cannot move from their region is insufficiently particular for consideration of the possibility of future persecution.
Bare claim that agency's data is dated is insufficient to make it arbitrary or capricious absent a showing of changed conditions.
http://media.ca1.uscourts.gov/pdf.opinions/17-2095P-01A.pdf
First Circuit: Gustavsen v. Alcon Laboratories, Inc.
Plaintiffs challenging design of medication container allege sufficient monetary loss for standing, given the possibility that the market will pass along some savings from a redesigned container to the consumer, and the fact that the present design operates as a surcharge.
Statute with a discrete list in the first subpoint and a list of qualitative factors in the second subpoint encompasses anything that corresponds to the qualitative factors, whether or not in the first subpoint.
Where an agency's sporadic rulemaking or adjudication is in tension with clearly considered regulatory guidance, less deference is due to the former.
http://media.ca1.uscourts.gov/pdf.opinions/17-2066P-01A.pdf
Statute with a discrete list in the first subpoint and a list of qualitative factors in the second subpoint encompasses anything that corresponds to the qualitative factors, whether or not in the first subpoint.
Where an agency's sporadic rulemaking or adjudication is in tension with clearly considered regulatory guidance, less deference is due to the former.
http://media.ca1.uscourts.gov/pdf.opinions/17-2066P-01A.pdf
End of day
More:
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
(NB all are dynamic links, and therefore potentially misleading.)
-CB
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
(NB all are dynamic links, and therefore potentially misleading.)
-CB
Sixth Circuit: Loren Robinson v. Jeffrey Woods
A sentencing scheme relying in part on questions decided as a matter of law by the judge violates the right to a trial by jury; where the scheme sets a mandatory minimum beneath a fixed statutory maximum, the system is sufficiently determinate to be subject to Sixth Amendment scrutiny.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0188p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0188p-06.pdf
Sixth Circuit: Ky. Emps. Ret. Sys. v. Seven Ctys. Servs., Inc.
Community mental health center is not a government instrumentality, since it was not started by the government, its leadership isn't selected by the government, and the government doesn't have the power unilaterally to terminate it.
Question certified on the basis of the relationship withe the state employees retirement system.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0186p-06.pdf
Question certified on the basis of the relationship withe the state employees retirement system.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0186p-06.pdf
Second Circuit: United States v. Santillan
Traffic stop was reasonably prolonged after suspects were nervous and unable to explain where they were coming from.
Admission of statements arising from a discovery of money during patdown later admitted as inevitable discovery was harmless error.
Being placed in the back seat of the police car insufficiently custodial to require Miranda warning.
Passenger in car without a close relationship to the driver does not have a legitimate expectation of privacy in the area around the passenger's seat, and therefore cannot object to a search.
Dissent: Generalized nervousness and presence of energy drinks are not a cause for suspicion; race is occasionally a factor; driver is not required to tell police where they are driving from.
http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/2/doc/16-1112com_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/2/hilite/
Admission of statements arising from a discovery of money during patdown later admitted as inevitable discovery was harmless error.
Being placed in the back seat of the police car insufficiently custodial to require Miranda warning.
Passenger in car without a close relationship to the driver does not have a legitimate expectation of privacy in the area around the passenger's seat, and therefore cannot object to a search.
Dissent: Generalized nervousness and presence of energy drinks are not a cause for suspicion; race is occasionally a factor; driver is not required to tell police where they are driving from.
http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/2/doc/16-1112com_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/2/hilite/
Second Circuit: United States v. Hoskins
Appellate courts have statutory jurisdiction over interlocutory appeals of dismissals of significant parts of individual counts charged, together with pendent jurisdiction over any preliminary rulings inextricably intertwined.
Foreign nationals operating abroad who are not agents of US companies form a discrete class of persons which Congress deliberately excluded from the Act; US conspiracy law does not apply to foreign nationals violating the act abroad without a connection to a US interest, given the presumption against extraterritorial application.
Concur: The principles underlying the presumption against extraterritorial application and legislative history establishes this, but Congress should revisit.
http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/1/doc/16-1010comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/1/hilite/
Foreign nationals operating abroad who are not agents of US companies form a discrete class of persons which Congress deliberately excluded from the Act; US conspiracy law does not apply to foreign nationals violating the act abroad without a connection to a US interest, given the presumption against extraterritorial application.
Concur: The principles underlying the presumption against extraterritorial application and legislative history establishes this, but Congress should revisit.
http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/1/doc/16-1010comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/1/hilite/
First Circuit: US v. Rivera-Berrios
Where the present offense prompted the revocation of an earlier parole, federal law requires that the criminal history of the deft for the present sentencing rates the earlier conviction at its post-revocation level.
Substantively, the sentence was within the encincture of the court's discretion.
http://media.ca1.uscourts.gov/pdf.opinions/17-1212P-01A.pdf
Substantively, the sentence was within the encincture of the court's discretion.
http://media.ca1.uscourts.gov/pdf.opinions/17-1212P-01A.pdf
Fifth Circuit: USA v. Raylin Richard
Plea bargain appeals waiver bars challenge to element of crime charged in bill of information; a guilty plea to the bill with a factual resume concedes all elements of conviction.
Sentence increase for causing victim to engage in certain behavior does not require that the victim is conscious of engaging in the behavior.
Sentence increase for obstruction justified when the obstruction is in a closely related matter.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30654-CR0.pdf
Sentence increase for causing victim to engage in certain behavior does not require that the victim is conscious of engaging in the behavior.
Sentence increase for obstruction justified when the obstruction is in a closely related matter.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30654-CR0.pdf
Third Circuit: Edward Mitchell v. Superintendent Dallas SCI
Although co-deft was correctly granted the writ on question of severance at trial, a subsequent change in the law has established that there was no confrontation clause issue requiring severance, and since the present petitioner is not being held in violation of the law, Habeas would not run.
http://www2.ca3.uscourts.gov/opinarch/173118p.pdf
http://www2.ca3.uscourts.gov/opinarch/173118p.pdf
Second Circuit: HealthBridge Management, LLC v. National Labor Relations Board
Given the evidence that the move was an attempt to avoid obligations under the CBA, employer's shift of a group of employees to a subcontractor was simply a disguised continuance of the business, and the protections of the CBA continued, whatever the technical employment status of the employees.
Holiday time-and-a-half provision of CBA not limited by parallel provision granting holiday pay to certain classes of workers; plain meaning and course of performance establish this.
CBA counts lunch half-hour as time actually worked, as it is compensated.
http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/doc/17-934_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/hilite/
Holiday time-and-a-half provision of CBA not limited by parallel provision granting holiday pay to certain classes of workers; plain meaning and course of performance establish this.
CBA counts lunch half-hour as time actually worked, as it is compensated.
http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/doc/17-934_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/hilite/
First Circuit: Harry, Jr. v. Countrywide Home Loans, Inc.
Fraud that voids a transaction ab initio does not toll or waive the relevant statute of limitations for actions to claiming fraud that voids a transaction ab initio.
Tolling a statute of limitations due to fraudulent concealment requires a threshold showing of due diligence by the movant, which can be disproved by delays in filing.
Acceleration of a mortgage note does not affect the time limits under state law on the right to foreclose.
Mortgagor does not have a private right of action against mortgagee under state mortgage licensing law.
http://media.ca1.uscourts.gov/pdf.opinions/16-2380P-01A.pdf
Tolling a statute of limitations due to fraudulent concealment requires a threshold showing of due diligence by the movant, which can be disproved by delays in filing.
Acceleration of a mortgage note does not affect the time limits under state law on the right to foreclose.
Mortgagor does not have a private right of action against mortgagee under state mortgage licensing law.
http://media.ca1.uscourts.gov/pdf.opinions/16-2380P-01A.pdf
The rest of the story
End of day. Perfunctory coverage continues.
http://www.ca3.uscourts.gov/opinions-and-oral-arguments
http://www.opn.ca6.uscourts.gov/opinions/opinions.php
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
http://www.ca11.uscourts.gov/todays-published-opinions
-CB
Third Circuit: USA v. Anthony Mayo
A second or successive habeas petition will be entertained if the sentence challenged may have been based on the retroactively invalidated sentencing provision.
State statute is categorically not a valid predicate crime of violence, as it can be committed by an omission.
http://www2.ca3.uscourts.gov/opinarch/164282p.pdf
State statute is categorically not a valid predicate crime of violence, as it can be committed by an omission.
http://www2.ca3.uscourts.gov/opinarch/164282p.pdf
Third Circuit: Encompass Insurance Co v. Stone Mansion Restaurant Inc
Given the plain reading of the statute, a domestic opponent can remove a case to federal court despite the forum defendant rule if the notice of removal is filed before acceptance of service of the complaint; the rule as set forth in the statute only applies to parties who have been properly joined and served. Party's agreement to accept electronic service did not have a preclusive effect on consent to jurisdiction.
As contribution within joint liability arises not from a finding of liability, but from an equitable allocation of costs, the insurer of a driver who harms another can recover a contribution from the bar that served the driver, despite the dram shop law limiting liability to third parties.
http://www2.ca3.uscourts.gov/opinarch/171479p.pdf
As contribution within joint liability arises not from a finding of liability, but from an equitable allocation of costs, the insurer of a driver who harms another can recover a contribution from the bar that served the driver, despite the dram shop law limiting liability to third parties.
http://www2.ca3.uscourts.gov/opinarch/171479p.pdf
Third Circuit: Brandy Kane v. Shawn Barger
Denial of qualified immunity, as circuit precedent involving illicit videotaping of fellow officers and inappropriate physical contact with arrestees clearly established a due process right to bodily integrity that was offended by the manner of the assault investigation.
http://www2.ca3.uscourts.gov/opinarch/173027p.pdf
http://www2.ca3.uscourts.gov/opinarch/173027p.pdf
Third Circuit: Elaine Levins v. Healthcare Revenue Recovery
A debt collector's phone message left under a DBA states a claim for a violation of the "true name" provision of the statute, but importing the "true name" requirement into other prohibited deceptive practices would make the provision superfluous.
http://www2.ca3.uscourts.gov/opinarch/173330p.pdf
http://www2.ca3.uscourts.gov/opinarch/173330p.pdf
Second Circuit: Am. Civil Liberties Union v. U.S. Dep’t of Defense
The Secretary's designation of the photos as protected under the Act was logical and plausible given the consultations with military commanders and the commanders' detailed reports of the military situation.
http://www.ca2.uscourts.gov/decisions/isysquery/e4d28d9e-9be6-4844-a955-5bf7b1ff418f/1/doc/17-779amm%20com_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e4d28d9e-9be6-4844-a955-5bf7b1ff418f/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/e4d28d9e-9be6-4844-a955-5bf7b1ff418f/1/doc/17-779amm%20com_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e4d28d9e-9be6-4844-a955-5bf7b1ff418f/1/hilite/
End of day
Still on minimal coverage mode. A few slings and/or arrows to slog through. Onward.
The rest of today's new appellate law:
http://www.ca3.uscourts.gov/opinions-and-oral-arguments
http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions
http://www.opn.ca6.uscourts.gov/opinions/opinions.php
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=today&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
https://www.cadc.uscourts.gov/internet/opinions.nsf
-CB
The rest of today's new appellate law:
http://www.ca3.uscourts.gov/opinions-and-oral-arguments
http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions
http://www.opn.ca6.uscourts.gov/opinions/opinions.php
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=today&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
https://www.cadc.uscourts.gov/internet/opinions.nsf
-CB
Second Circuit: United States v. Philip Zodhiates
Subpoena of cellular phone location records permissible under good faith exception via the third party doctrine.
A court order from a state in which the marriage was legal was entitled to full faith credit in the state of residence, which otherwise would not have recognized the marriage. Prior circuit precedent holding the law of the state of residence to determine the applicable protections applies only in the absence of this type of direct mandate.
Prosecution statements in closing were permissible inferences.
http://www.ca2.uscourts.gov/decisions/isysquery/88b38eb6-51ce-4c1c-a328-b7ffd5f2edf9/2/doc/17-839_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/88b38eb6-51ce-4c1c-a328-b7ffd5f2edf9/2/hilite/
A court order from a state in which the marriage was legal was entitled to full faith credit in the state of residence, which otherwise would not have recognized the marriage. Prior circuit precedent holding the law of the state of residence to determine the applicable protections applies only in the absence of this type of direct mandate.
Prosecution statements in closing were permissible inferences.
http://www.ca2.uscourts.gov/decisions/isysquery/88b38eb6-51ce-4c1c-a328-b7ffd5f2edf9/2/doc/17-839_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/88b38eb6-51ce-4c1c-a328-b7ffd5f2edf9/2/hilite/
First Circuit: Richard v. Regional School Unit 57
Establishment that the employer's nondiscriminatory justification was in fact pretextual does not establish causation, which must be proved separately.
Sufficient evidence for court's inferences.
Dissent: From totality of record, retaliation was plain.
http://media.ca1.uscourts.gov/pdf.opinions/17-2200P-01A.pdf
Sufficient evidence for court's inferences.
Dissent: From totality of record, retaliation was plain.
http://media.ca1.uscourts.gov/pdf.opinions/17-2200P-01A.pdf
First Circuit: United Food & Comm. Workers v. Novartis Pharm.
Claiming that a potentially obvious invention was in fact surprising is not a basis for invalidating the subsequent patent or holding the filing to be fraudulent -- there is no indication that the use of the word caused the patent to be awarded. Subsequent attempt to enforce the patent rights therefore not a sham.
http://media.ca1.uscourts.gov/pdf.opinions/17-1714P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1714P-01A.pdf
First Circuit: Scholz v. Goudreau
Given uncontroverted evidence of attempted compliance with the terms of the agreement, court did not abuse its discretion in holding that there was no issue for trial.
As the question was relevant to other matters, lack of objection to cross-examination questions on actual versus apparent authority did not constitute implied consent to an amendment of claim to include breach.
As damages are an element of the breach claim, court did not abuse its discretion in refusing entry of judgment on breach claim after jury's finding of breach in order to dispel the counterclaim.
Allegation that litigation was used to obtain contract rescission sounds in malicious prosecution, not in abuse of process.
Where the legitimate purpose of the claim is truthfully stated in the claim itself, the claim is not an abuse of process, however spitefully it might have been raised.
Court was within its discretion in refusing an award of fees.
Court was within discretion in admitting contemporaneous, ostensibly independent YT clip under the theory that it was part of the album's marketing.
http://media.ca1.uscourts.gov/pdf.opinions/17-1264P-01A.pdf
As the question was relevant to other matters, lack of objection to cross-examination questions on actual versus apparent authority did not constitute implied consent to an amendment of claim to include breach.
As damages are an element of the breach claim, court did not abuse its discretion in refusing entry of judgment on breach claim after jury's finding of breach in order to dispel the counterclaim.
Allegation that litigation was used to obtain contract rescission sounds in malicious prosecution, not in abuse of process.
Where the legitimate purpose of the claim is truthfully stated in the claim itself, the claim is not an abuse of process, however spitefully it might have been raised.
Court was within its discretion in refusing an award of fees.
Court was within discretion in admitting contemporaneous, ostensibly independent YT clip under the theory that it was part of the album's marketing.
http://media.ca1.uscourts.gov/pdf.opinions/17-1264P-01A.pdf
First Circuit: US v. Arias-Mercedes
Denial of minor-participant sentence reduction was within court's discretion where the deft helped to pilot the craft with the drugs through a dangerous ocean voyage.
Within-guidelines sentence substantively reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1229P-01A.pdf
Within-guidelines sentence substantively reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1229P-01A.pdf
First Circuit: Boudreau v. Lussier
Expert testimony is required to establish that time-stamped screenshots taken of employees computer are, for purposes of the statute, contemporaneous intercepts of electronic communications.
Impoundment and subsequent inventory search of arrestee's vehicle from employer's private lot were justified under the community caretaker exception; even if the motive was investigatory, subjective intent is irrelevant, and the towing was objectively justified.
Employer defts would be protected by qualified immunity for consenting to search of employees computer where their authority to do so was not plain.
http://media.ca1.uscourts.gov/pdf.opinions/16-1049P-01A.pdf
Impoundment and subsequent inventory search of arrestee's vehicle from employer's private lot were justified under the community caretaker exception; even if the motive was investigatory, subjective intent is irrelevant, and the towing was objectively justified.
Employer defts would be protected by qualified immunity for consenting to search of employees computer where their authority to do so was not plain.
http://media.ca1.uscourts.gov/pdf.opinions/16-1049P-01A.pdf
End of day
Much law to the west (and southeast), viz:
http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions
http://www.opn.ca6.uscourts.gov/opinions/opinions.php
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
http://www.ca11.uscourts.gov/todays-published-opinions
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
-CB
http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions
http://www.opn.ca6.uscourts.gov/opinions/opinions.php
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
http://www.ca11.uscourts.gov/todays-published-opinions
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
-CB
Third Circuit: Newark Cab Association v. City of Newark
The owner of a taxi licence has a Constitutional property interest in the licence, but not necessarily in its economic value.
Sufficient rational basis for treating street-hail cabs differently than app-based services.
City's licensing scheme does not use language that plainly expresses the intention to create a contractual obligation, and is not definite enough to bind by estoppel,.
http://www2.ca3.uscourts.gov/opinarch/171358p.pdf
Sufficient rational basis for treating street-hail cabs differently than app-based services.
City's licensing scheme does not use language that plainly expresses the intention to create a contractual obligation, and is not definite enough to bind by estoppel,.
http://www2.ca3.uscourts.gov/opinarch/171358p.pdf
Third Circuit: In re: Arctic Glacier International
Shareholders who acquired shares post-bankruptcy-confirmation are transferees who step into the shoes of the previous owners, and their post-confirmation claims based on FINRA and tort are therefore barred by the bankruptcy's release of claims.
http://www2.ca3.uscourts.gov/opinarch/172522p.pdf
http://www2.ca3.uscourts.gov/opinarch/172522p.pdf
Second Circuit: United States v. Lloyd
Although the court erred in not reciting the elements of the crime during the plea colloquy, there is insufficient proof on appeal that the deft would have otherwise rejected the plea.
Ample grounds in the facts stipulated and the PSR for the court to be satisfied that the plea was legitimate.
Ineffective assistance claim reserved for collateral challenge to allow for development of the record.
http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/1/doc/16-3169_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/1/hilite/
Ample grounds in the facts stipulated and the PSR for the court to be satisfied that the plea was legitimate.
Ineffective assistance claim reserved for collateral challenge to allow for development of the record.
http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/1/doc/16-3169_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/1/hilite/
Second Circuit: Paysys Int’l, Inc. v. Atos IT Servs. Ltd.
Granting of motion to dismiss with prejudice is appealable as a final order, regardless of whether a final decision has been entered.
A party moving to dismiss its own complaint with prejudice after the filing of the first responsive pleading is entitled to withdraw the motion and proceed to litigate the merits when the movant believes that the more than de minimis conditions for dismissal ordered by the court are excessive.
http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/2/doc/17-2204_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/2/hilite/
A party moving to dismiss its own complaint with prejudice after the filing of the first responsive pleading is entitled to withdraw the motion and proceed to litigate the merits when the movant believes that the more than de minimis conditions for dismissal ordered by the court are excessive.
http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/2/doc/17-2204_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/2/hilite/
First Circuit: Mondol v. Somerville, MA
Meetings between the principals after the events of the case do not in themselves present an issue of possible cover-up for trial; communications before the events of the case do not in themselves present an issue of conspiracy for trial, as the wrong was likely not planned in advance.
Judges shouldn't be asked to hunt for truffles.
http://media.ca1.uscourts.gov/pdf.opinions/17-2076U-01A.pdf
Judges shouldn't be asked to hunt for truffles.
http://media.ca1.uscourts.gov/pdf.opinions/17-2076U-01A.pdf
First Circuit: Soto-Cintron v. US
As the arresting officers' mistake was reasonable, given the message received on the radio, it would not have been actionable in a suit against the government -- as it was not actionable in that context, there is no private wrong to sound in tort.
http://media.ca1.uscourts.gov/pdf.opinions/17-1180P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1180P-01A.pdf
First Circuit: Newman v. Lehman Brothers Holdings Inc.
When the complaint affirmatively states a filing date for an administrative proceeding that would be past the statutory cutoff, but then is subsequently amended to obscure that filing date, the court does not engage in impermissible fact-finding in examining the administrative complaint to determine if it was timely, since the administrative complaint serves as the factual basis for the present action.
http://media.ca1.uscourts.gov/pdf.opinions/15-2239P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/15-2239P-01A.pdf
First Circuit: US v. Villodas-Rosario
Consideration of whether enforcing an appellate waiver in a plea deal would be a miscarriage of justice refers to the harm alleged in the appeal, not whether the mechanics of the plea deal itself work a miscarriage of justice.
http://media.ca1.uscourts.gov/pdf.opinions/15-1981P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/15-1981P-01A.pdf
Cases not appearing in this film
Eighth Circuit: Zach Hillesheim v. Holiday Stationstores, Inc.
Claim that placement of refuse can blocked entry to the store disabled persons' access to the store alleges a sufficiently concrete and particular injury for standing.
http://media.ca8.uscourts.gov/opndir/18/08/173143P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/173143P.pdf
Eighth Circuit: Samuel Scudder v. Dolgencorp
Genuine issue for trial presented as to disputed resignation where (1) management construed the conversation as a resignation, and employee later disputes; (2) returning military employee filed application through main system rather than the personnel agent who had handled his earlier military leave.
As SSA doesn't consider reasonable accommodation, a claim of disability doesn't judicially estop the plaintiff from claiming a right to employment during the same period.
http://media.ca8.uscourts.gov/opndir/18/08/172941P.pdf
As SSA doesn't consider reasonable accommodation, a claim of disability doesn't judicially estop the plaintiff from claiming a right to employment during the same period.
http://media.ca8.uscourts.gov/opndir/18/08/172941P.pdf
Eighth Circuit: United States v. Deborah Brabant-Scribner
As the regulation requires the IRS to consider alternatives for collection and not alternatives to collection, agency need not have resolved a compromise offer before an Article III court can permit the sale of the primary residence.
http://media.ca8.uscourts.gov/opndir/18/08/172825P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172825P.pdf
Eighth Circuit: United States v. Michael John Walker
Sentencing bump for possession of a weapon in support of the crime inappropriate where the weapon was locked in the trunk and the crime was use or possession of a user's amount of drugs.
http://media.ca8.uscourts.gov/opndir/18/08/171680P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171680P.pdf
Seventh Circuit: Marcus Muhammad v. Del Pearson
Where contemporaneous documents establish that the warrant was vague due to clerical error, and that the vagueness was resolved by actual knowledge of the officers, the question can be resolved as a matter of law.
Arguable probable cause for arrest.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:15-3044:J:Hamilton:aut:T:fnOp:N:2204382:S:0
Arguable probable cause for arrest.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:15-3044:J:Hamilton:aut:T:fnOp:N:2204382:S:0
Seventh Circuit: Volney McGhee v. Cameron Watson
Where ineffective assistance at trial isn't used to establish ineffective assistance on direct review, state habeas petition for ineffective assistance on direct review does not exhaust the ineffective assistance at trial for subsequent federal habeas review.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:15-3881:J:Wood:con:T:fnOp:N:2203949:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:15-3881:J:Wood:con:T:fnOp:N:2203949:S:0
Seventh Circuit: USA v. David Watson
Phone tip that children were playing with guns had insufficient indicia of criminality to justify blocking in of vehicle and subsequent searches.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:17-1651:J:Hamilton:con:T:fnOp:N:2204352:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:17-1651:J:Hamilton:con:T:fnOp:N:2204352:S:0
Seventh Circuit: Elliott Levin v. William Miller
Corporate officers had no obligation to counsel the board on the wisdom of not disbursing the tax refunds to the soon-to-fail banks, given the stated board policy of support for the banks.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:17-1775:J:Sykes:aut:T:fnOp:N:2203966:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:17-1775:J:Sykes:aut:T:fnOp:N:2203966:S:0
Seventh Circuit: Daniel Martinez v. City of Chicago
S1983 plaintiff has to carry the burden on all disputed questions, including exigent circumstances.
Probable cause for custodial detention in own home after police entry, given proximity to scene of crime.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:17-1888:J:Ripple:aut:T:fnOp:N:2203888:S:0
Probable cause for custodial detention in own home after police entry, given proximity to scene of crime.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:17-1888:J:Ripple:aut:T:fnOp:N:2203888:S:0
Seventh Circuit: Peggy A. Berg v. SSA
The Act's 90-day look-back period considers accrued SSA benefits as of the date of their accrual, rather than as of the date of the administrative notice of the accrual of benefits.
Sixth Circuit: Miami-Luken, Inc. v. DEA - Drug Enforcement Agency
Agency head's order quashing an ALJ's subpoena is not a final agency action for the purpose of statutory Article III review.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0173p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0173p-06.pdf
Fifth Circuit: Sealed Appellee v. Sealed Appellant
Deft waived right to non-conflicted counsel when accepting that counsel had a conflict while fully aware that, additionally, counsel was a potential co-defendant in the present action.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50487-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-50487-CV0.pdf
Fifth Circuit: IAS Service Group, L.L.C. v. Jim Buckley & Associates
Fraudulent inducement pleaded with sufficient particularity; Contractual term did not operate as a disclaimer of reliance; no clear error in court's determination that breach of contract regarding assignment was harmless; party asserting breach had the obligation to establish performance of the condition precedent.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50105-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-50105-CV0.pdf
Fifth Circuit: USA v. Henry Reddick
After hash values of suspect images were flagged by the private vendor, subsequent opening of the files by law enforcement did not violate the Fourth Amendment, as the opening didn't expand the scope of the search.
http://www.ca5.uscourts.gov/opinions/pub/17/17-41116-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-41116-CR0.pdf
Fifth Circuit: Ashley Krawietz, et al v. Galveston Independent Schools
School district did not act quickly enough after having cause to know of the need for action. Plaintiff was correctly categorized as a prevailing party for the purpose of the fee award when the court ordered the deft. to comply with their obligations under the Act.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40461-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-40461-CV0.pdf
Fifth Circuit: Veritext Corporation v. Paul Bonin, et al
State regulation of business practices of shorthand court reporters is justified by a sufficiently strong state interest.
The practice is not immunized against antitrust scrutiny, though, as there is no active state oversight; while the regulations are a creation of the legislature, and the Board is merely administering them.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30691-CV0.pdf
The practice is not immunized against antitrust scrutiny, though, as there is no active state oversight; while the regulations are a creation of the legislature, and the Board is merely administering them.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30691-CV0.pdf
Fifth Circuit: Gregory Samples v. Harris County
Grant of qualified immunity for police use of taser on fellow who might have struck a fighting stance.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20350-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-20350-CV0.pdf
There's more
...elsewhere. viz:
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=today&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
http://www.ca11.uscourts.gov/todays-published-opinions
http://www.cafc.uscourts.gov/opinions-orders
All for now. Back tomorrow if the crick don't rise.
-CB
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=today&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
http://www.ca11.uscourts.gov/todays-published-opinions
http://www.cafc.uscourts.gov/opinions-orders
All for now. Back tomorrow if the crick don't rise.
-CB
Seventh Circuit: BRC Rubber & Plastics, Inc. v. Continental Carbon Company
Conditional right of first refusal requiring counterparty to allow vendor the chance to match any lower price for the contracted item is sufficiently binding on the first party to operate as consideration for the contract. As the factual statements of the original claim support a theory of anticipatory repudiation, the court may allow the new theory of claim at summary judgment, absent prejudice.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-16/C:17-2783:J:Ripple:aut:T:fnOp:N:2203557:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-16/C:17-2783:J:Ripple:aut:T:fnOp:N:2203557:S:0
Seventh Circuit: Naperville Smart Meter Awarene v. City of Naperville
As it gives the government data that would be otherwise unavailable without a physical search, electrical consumption data collected at fifteen-minute intervals retained for a space of years constitutes a search under the Fourth Amendment. Given the significant government interests in the program, the fact that excessive electricity use isn't a crime per se, and that, according to a guarantee sent to users by the utility, third parties, including law enforcement, need a warrant for access to customer data, the search is a reasonable one.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-16/C:16-3766:J:Kanne:aut:T:fnOp:N:2203659:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-16/C:16-3766:J:Kanne:aut:T:fnOp:N:2203659:S:0
Sixth Circuit: Jena McClellan v. Midwest Machining, Inc.
Where a plaintiff alleging discrimination attempts to return the contractual consideration for an earlier waiver of the claim within a reasonable period of learning of their rights under the discrimination statute, the common-law tender-back rule is satisfied.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0171p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0171p-06.pdf
Sixth Circuit: Ian Davis v. Margaret Bradshaw
Recantation of trial witness insufficiently credible to trigger the actual-innocence exception to the statutory limitation on Habeas petitions.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0172p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0172p-06.pdf
End of day
Much more here:
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
http://www.ca11.uscourts.gov/todays-published-opinions
http://www.cafc.uscourts.gov/opinions-orders
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
http://www.ca11.uscourts.gov/todays-published-opinions
http://www.cafc.uscourts.gov/opinions-orders
Sixth Circuit: Jonathan Gaffers v. Kelly Servs., Inc.
Arbitration agreement is not displaced by the FLSA; a challenge to the agreements on the basis that compelling individual arbitration precludes collective action is a challenge to the purpose of arbitration, and therefore not permissible under the savings clause of the Act.
Third Circuit: Corey Bland v. City of Newark
Qualified immunity for officers firing into car after car chase, as the chase was dangerous, the driver continued to verbally threaten them, and a recent carjacking had been armed, leading the police to think that the driver was armed.
http://www2.ca3.uscourts.gov/opinarch/172228p.pdf
http://www2.ca3.uscourts.gov/opinarch/172228p.pdf
Second Circuit: Amy Colvin v. Hubert Keen, et. al.
Initial denial of summary judgment not binding under law of the case. Denial of summary judgment is not an adjudication of rights or liabilities.
http://www.ca2.uscourts.gov/decisions/isysquery/d561ea22-a702-410d-a0e4-6e8d6bef72b9/1/doc/16-3650_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d561ea22-a702-410d-a0e4-6e8d6bef72b9/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/d561ea22-a702-410d-a0e4-6e8d6bef72b9/1/doc/16-3650_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d561ea22-a702-410d-a0e4-6e8d6bef72b9/1/hilite/
First Circuit: Sihotang v. Sessions
Abuse of discretion for agency not to reopen immigration removal proceedings where there is a clear factual basis for a claim of changed country conditions affecting his religion and its required practices.
http://media.ca1.uscourts.gov/pdf.opinions/17-2183P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-2183P-01A.pdf
First Circuit: US v. Valdes-Ayala
Sufficient evidence for bankruptcy fraud, as the petitions filed were the bare minimum to get the clients released from jail.
Sufficient evidence for wire fraud, as Microsoft has no email servers in Puerto Rico.
Sufficient evidence for identity fraud, as victims testified that they didn't sign many of the documents.
No constructive amendment of indictment alleging defrauding of creditors using the court, as the court filings were identified as the fraudulent element, and the offense was the deception in the filings.
No plain error in not sending the full offense-specific jury instruction into the deliberations room; no plain error in omission of materiality from fraud instruction.
Authorized use of names and power of signature is without lawful authority when used unlawfully.
Plain error in use of superseded sentencing guidelines.
Bankruptcy court is a legitimate recipient of restitution order.
http://media.ca1.uscourts.gov/pdf.opinions/16-1002P-01A.pdf
Sufficient evidence for wire fraud, as Microsoft has no email servers in Puerto Rico.
Sufficient evidence for identity fraud, as victims testified that they didn't sign many of the documents.
No constructive amendment of indictment alleging defrauding of creditors using the court, as the court filings were identified as the fraudulent element, and the offense was the deception in the filings.
No plain error in not sending the full offense-specific jury instruction into the deliberations room; no plain error in omission of materiality from fraud instruction.
Authorized use of names and power of signature is without lawful authority when used unlawfully.
Plain error in use of superseded sentencing guidelines.
Bankruptcy court is a legitimate recipient of restitution order.
http://media.ca1.uscourts.gov/pdf.opinions/16-1002P-01A.pdf
End of day
Ending today's run in Texas. The rest of the cases can be found on the half-dozen sites whose many employees do this for a living. (All of which launched well after us.)
Basically, it's batting practice, keeping these skills up while writing a dissertation, etc. Cheers.
-CB
Fifth Circuit: Malcolm Kelso v. Christine Butler, et al
Although the pragmatic function of a motion for judgment as a matter of law is to allow the opposing party to cure any defects in the case before presented to the finder of fact, the deft here was not prejudiced by the granting of the motion without receiving an opportunity to cure the defect, as no proof would have been possible.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30169-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/15/15-30169-CV0.pdf
Fifth Circuit: 21st Mortgage Corporation v. Kayla Glenn
As the statute directs that the value of the possessions retained by the debtor is the value that a retail merchant could derive from them, delivery and setup costs of a mobile home are not considered part of the value of the retained property.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60533-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-60533-CV0.pdf
Third Circuit: W.R. Grace & Co. v.
Injunction channelling recoveries in asbestos bankruptcies applies to both named and un-named parties; the injunction does not pre-empt state workman's compensation laws by governing recoveries by workmans comp funds, as it doesn't modify rights or duties under the law.
Test of whether recoveries are governed by the injunction is whether the injury is wholly separate from the asbestos liability.
http://www2.ca3.uscourts.gov/opinarch/171208p.pdf
Test of whether recoveries are governed by the injunction is whether the injury is wholly separate from the asbestos liability.
http://www2.ca3.uscourts.gov/opinarch/171208p.pdf
Third Circuit: Traci Berardelli v. Allied Services Institute
Where the standards of liability of two statutes are substantively identical, administrative regulations enacted for one are due deference in interpreting the other.
Requested accommodation was reasonable as a matter of law -- jury instruction giving plaintiffs the burden to establish reasonability was error.
http://www2.ca3.uscourts.gov/opinarch/171469p.pdf
Requested accommodation was reasonable as a matter of law -- jury instruction giving plaintiffs the burden to establish reasonability was error.
http://www2.ca3.uscourts.gov/opinarch/171469p.pdf
Second Circuit: D’Addario v. D’Addario, et al.
Although a claimant's claim against the estate is not yet ripe, as its present lack of value might change, a claim based on the claimant's collection expenses is sufficiently final.
Estate, which as a matter of state law is an inchoate entity, can serve as the nexus for a civil RICO association-in-fact.
http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/1/doc/17-1162_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/1/hilite/
Estate, which as a matter of state law is an inchoate entity, can serve as the nexus for a civil RICO association-in-fact.
http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/1/doc/17-1162_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/1/hilite/
Second Circuit: In re: Matthew N. Murray
Creditor seeking to initiate an involuntary bankruptcy must demonstrate prejudice from inadequacy of state legal remedies and that the petition serves the purposes of the Act.
http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/2/doc/17-1272_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/2/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/2/doc/17-1272_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/2/hilite/
First Circuit: Lemus v. Sessions
Exigent grounds for adjustment of immigration status do not repoen the filing period for the claim.
Sua sponte decisions of whether to open a case are unreviewable absent colorable constitutional or legal claims.
Past agency adjudication holding that the agency would modify procedures where a claimant was prima facie eligible antedates the current rules and does not make the present holding arbitrary and capricious.
http://media.ca1.uscourts.gov/pdf.opinions/17-2068P-01A.pdf
Sua sponte decisions of whether to open a case are unreviewable absent colorable constitutional or legal claims.
Past agency adjudication holding that the agency would modify procedures where a claimant was prima facie eligible antedates the current rules and does not make the present holding arbitrary and capricious.
http://media.ca1.uscourts.gov/pdf.opinions/17-2068P-01A.pdf
First Circuit: US v. Sosa-Gonzalez
General objection to reasonableness of sentence at trial does not preserve specific procedural sentencing challenges.
Sentence procedurally and substantively reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-2005P-01A.pdf
Sentence procedurally and substantively reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-2005P-01A.pdf
First Circuit: US v. Gierbolini-Rivera
Sentence procedurally and substantively reasonable.
http://media.ca1.uscourts.gov/pdf.opinions/15-2076P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/15-2076P-01A.pdf
End of Day. Oddly exhausted.
Also:
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
=https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
-CB
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
=https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
-CB
Eighth Circuit: BNSF Railway Company v. Seats, Incorporated
State common-law tort action against railway suppliers is not preemepted.
http://media.ca8.uscourts.gov/opndir/18/08/171399P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171399P.pdf
Eighth Circuit: Mark Tettey Kom Degbe v. Jefferson B. Sessions, III
Challenge to denial of untimely asylum appeal construed as challenge to decision not to remand. Insufficient grounds. Deference to Executive on country conditions.
http://media.ca8.uscourts.gov/opndir/18/08/171338P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171338P.pdf
Eighth Circuit: Brian King v. The City of Crestwood, MO
Where plaintiff lacks standing to seek federal review of state court decision on the merits, dismissal under Rooker-Feldman is not mandatory; the case can be dismissed for standing.
Municipal court is not a policymaking authority; the outcome of an adjudication therefore can't give rise to a municipal liability claim under S1983.
http://media.ca8.uscourts.gov/opndir/18/08/164560P.pdf
Municipal court is not a policymaking authority; the outcome of an adjudication therefore can't give rise to a municipal liability claim under S1983.
http://media.ca8.uscourts.gov/opndir/18/08/164560P.pdf
Eighth Circuit: Charlene Eggers v. Wells Fargo Bank, N.A.
Statistical evidence of disparate impact is required to state a claim that an employer's policy had a disparate impact on older workers so long as the policy is not a sweeping disqualification.
http://media.ca8.uscourts.gov/opndir/18/08/164376P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/164376P.pdf
Seventh Circuit: David Bishop v. Air Line Pilots Association, I
Allegations that a union privileged a more powerful faction within the union, together with a showing of deceptive actions can state a claim for breach of the duty of fair representation.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-1438:J:Ripple:aut:T:fnOp:N:2201507:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-1438:J:Ripple:aut:T:fnOp:N:2201507:S:0
Seventh Circuit: Straits Financial LLC v. Ten Sleep Cattle Co.
Account guarantee agreement for cattle hedging account void where plaintiff had no knowledge of the illicit trades being made using it.
Duty to mitigate begins with actual knowledge.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-2100:J:Hamilton:aut:T:fnOp:N:2201302:S:0
Duty to mitigate begins with actual knowledge.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-2100:J:Hamilton:aut:T:fnOp:N:2201302:S:0
Seventh Circuit: Katrina Walker v. Carl Weatherspoon
Uncorroborated tip sufficient for warrant.
Non-jurisdictional cutoff date for appeals waived, since the rules aren't jurisdictional, and the gov't described the brief as "early"
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-2665:J:Easterbrook:aut:T:fnOp:N:2201016:S:0
Non-jurisdictional cutoff date for appeals waived, since the rules aren't jurisdictional, and the gov't described the brief as "early"
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-2665:J:Easterbrook:aut:T:fnOp:N:2201016:S:0
Seventh Circuit: Iowna Portalatin v. Blatt, Hasenmiller, Leibsker
Comprehensive settlement agreement reached during trial released claim for statutory damages and fees.
Penalties under the statute are not per deft.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-3335:J:Manion:aut:T:fnOp:N:2201522:S:0
Penalties under the statute are not per deft.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-3335:J:Manion:aut:T:fnOp:N:2201522:S:0
Sixth Circuit: Kurt Harrington v. J. Ray Ormond
Habeas challenge arising from Supreme Court holding narrowing the causation element of the offense can proceed to argument on the question of retroactivity absent explicit retroactivity assertion by the Supreme Court where other circuits have recognized the ruling as retroactive.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0165p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0165p-06.pdf
Third Circuit: US v. Ronald Peppers
ACCA residual clause minimum Habeas showing is a mere possibility that the sentencing court acted under that section of the law.
Plea deal did not waive Habeas challenge to sentence, so long as the Habeas minimum showing is met, as parties can't stipulate to a sentence in excess of legal limits.
So long as there is a valid petition arising from a Supreme Court holding made retroactive to cases on collateral review, non-retroactive cases decided in the interval can cited to describe the current state of the law.
Under categorical review, state robbery statute isn't a valid predicate; petitioner did not brief whether state burglary statute is covered under the elements clause of the law; challenge to that predicate conviction is therefore waived.
Second Circuit: Jaen v. Sessions
For the purposes of the Immigration Act, a child lawfully born into a lawful marriage is (conclusively) presumed to be the child of both parents. Parallel holding under state law as alternative ground.
http://www.ca2.uscourts.gov/decisions/isysquery/c47e857f-f701-4ef9-a7f8-4e6809e4f3e8/1/doc/17-1512_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c47e857f-f701-4ef9-a7f8-4e6809e4f3e8/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/c47e857f-f701-4ef9-a7f8-4e6809e4f3e8/1/doc/17-1512_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c47e857f-f701-4ef9-a7f8-4e6809e4f3e8/1/hilite/
End of day
See also:
http://www.ca11.uscourts.gov/todays-published-opinions
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
http://www.ca11.uscourts.gov/todays-published-opinions
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
Tenth Circuit: US v. Mann
State assault with bodily injury statute is categorically a predicate crime of violence for the statute, despite the fact that a mens rea of recklessness suffices for conviction, as violence can be reckless.
https://www.ca10.uscourts.gov/opinions/17/17-2117.pdf
Vasquez - Valle v. Jefferson Sessions
State witness tampering statute is not categorically a crime of moral turpitude, since it encompasses a wide range of conduct. Under modified categorical review, the conviction for knowingly inducing a witness to be absent was not a valid predicate.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/13-74213.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/13-74213.pdf
Holzhauer v. Golden Gate Bridge District
Tort liability for joint operation of a vessel is determined proximate to the time of the accident, not through the duration of the voyage. The boat owner therefore had no duty to supervise the skilled passenger under a duty of joint operation when the latter took the helm, and as there was no duty of care, no question of comparative negligence arises.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/16-15942.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/16-15942.pdf
Ninth Circuit: State of Hawaii v. Donald J. Trump
Remand following Certiarori review.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/17-17168.pdf
Eighth Circuit: Hal Stanley v. Katherine Finnegan
Denial of qualified immunity where reasonable suspicion is needed to remove children from the home, and the children were removed despite a plainly exculpatory visit by the agency a short time before.
http://media.ca8.uscourts.gov/opndir/18/08/172702P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172702P.pdf
Eighth Circuit: David Faltermeier v. FCA US LLC
Given the complexity of the action and the fact that fees increase with the complexity of the action, no plain error in court's calculation of potential fees for the purpose of determining if the total award was sufficient for removal under the statute.
While state law does not require actual reliance on the misrepresentation, there must be some connection between the representation and the purchase.
http://media.ca8.uscourts.gov/opndir/18/08/172093P.pdf
While state law does not require actual reliance on the misrepresentation, there must be some connection between the representation and the purchase.
http://media.ca8.uscourts.gov/opndir/18/08/172093P.pdf
Eighth Circuit: United States v. Mohamed Farah
No abuse of discretion in denial of last-minute motion for substitute counsel, given that deft had not voiced dissatisfaction with counsel.
Joining insurgency while claiming the defense of innocent civilians does not exculpate from murder by unlawful belligerency, as the latter is a matter of law, and ignorance of law offers no defense.
No procedural error in sentencing where court does not address disparity with co-conspirators, but defts extensively discussed the issue in sentencing memoranda; court is presumed to have reviewed.
Sentencing disparities not substantively unreasonable.
http://media.ca8.uscourts.gov/opndir/18/08/164363P.pdf
Joining insurgency while claiming the defense of innocent civilians does not exculpate from murder by unlawful belligerency, as the latter is a matter of law, and ignorance of law offers no defense.
No procedural error in sentencing where court does not address disparity with co-conspirators, but defts extensively discussed the issue in sentencing memoranda; court is presumed to have reviewed.
Sentencing disparities not substantively unreasonable.
http://media.ca8.uscourts.gov/opndir/18/08/164363P.pdf
Seventh Circuit: Pronschinske Trust Dated March v. Kaw Valley Companies, Inc
A guarantee of a minimum production royalty nested within a provision describing the discretionary commencement of mining operations does not guarantee such a royalty if the party elects not to operate the mine.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-10/C:17-2889:J:Rovner:aut:T:fnOp:N:2200780:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-10/C:17-2889:J:Rovner:aut:T:fnOp:N:2200780:S:0
Seventh Circuit: Andrew Schlaf v. Safeguard Property, LLC
A management company that leaves notices on the doors of a residence when mortgage payments fall behind is not an indirect debt collector for the purposes of the statute.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-10/C:17-2811:J:Ripple:aut:T:fnOp:N:2200827:S:0
Seventh Circuit: Alfredo Miranda v. County of Lake
14th Amendment and negligence claims against jail physicians for the self-starvation and dehydration death of a non-citizen arrested for evading jury service present an issue for trial when the jury might reasonably decide that the denial of treatment was objectively unreasonable.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-10/C:17-1603:J:Wood:aut:T:fnOp:N:2200463:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-10/C:17-1603:J:Wood:aut:T:fnOp:N:2200463:S:0
Fifth Circuit: USA v. Florencio Rosales-Mireles
Prudential grant of mutual motion to vacate the sentence and remand for resentencing upon remand from the U.S. Supreme Court.
http://www.ca5.uscourts.gov/opinions/pub/16/16-50151-CR1.pdf
Second Circuit: Trusted Media Brands, Inc. v. United States of America
Tax. Where one section of a statute grants an extended period of time to do X, and Y is an alternative to X, a reference elsewhere in the law saying that X and Y are governed by the initial provision can simply mean that they are separately governed by it.
(Probably.)
http://www.ca2.uscourts.gov/decisions/isysquery/cb713570-cf6f-478b-a928-4f292687255f/1/doc/17-3733_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cb713570-cf6f-478b-a928-4f292687255f/1/hilite/
First Circuit: Torres-Pagan v. Berryhill
Omission of significant medical records can justify remand to the agency for insufficient development of the factual record where the petitioner suffers from cognitive impairment; the claimant does not have to make a showing of discriminatory effect of the omission.
http://media.ca1.uscourts.gov/pdf.opinions/17-2146P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-2146P-01A.pdf
First Circuit: US v. Harrison
Within-guidelines sentence of lifetime supervised release procedurally and substantively reasonable, where the court specifically indicated an awareness of history and a desire to restrain the defendant.
As there was a plausible sentencing rationale and a defensible result, sentence not substantively unreasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-2088P-01A.pdf
As there was a plausible sentencing rationale and a defensible result, sentence not substantively unreasonable.
http://media.ca1.uscourts.gov/pdf.opinions/17-2088P-01A.pdf
First Circuit: US v. Reid
Below-guidelines sentence not substantively or procedurally unreasonable; given the deft's objective criminal history, the court did not abuse its discretion by not explicitly comparing the history to mitigating circumstances in the deft's life.
First Circuit: US v. Perez-Crisostomo
Increase in sentence for Obstruction warranted where deft maintains false name throughout proceedings, and there is some chance that the deception interfered with sentencing.
No plain error in denial of sentence reduction for acceptance of responsibility where, in addition to acquiescing in the sentencing procedures, the deft attempts otherwise to obstruct justice.
http://media.ca1.uscourts.gov/pdf.opinions/17-1914P-01A.pdf
First Circuit: Medical Mutual Insurance Co. v. Burka
Given the terms of the policy, the insurer has no duty to defend a physician who allegedly improperly accessed medical records, since the records were not acquired in the course of professional treatment.
http://media.ca1.uscourts.gov/pdf.opinions/17-1872P-01A.pdf
First Circuit: Carlson v. University of New England
Where an employer claims that an allegedly retaliatory transfer was voluntary, misrepresentations made by the employer to the employee must have a non-retaliatory justification in order to prevail at summary judgment.
In order to present an issue for trial, a claim that an annual raise was artificially low must be supported by a benchmark of prior years salary decisions.
http://media.ca1.uscourts.gov/pdf.opinions/17-1792P-01A.pdf
First Circuit: Sexual Minorities Uganda v. Lively
Circuit courts do not have jurisdiction under the direct appeals statute to reform unflattering dicta in the opinion below.
Where diversity jurisdiction is pleaded but conceded during the proceedings to be a fiction, the court has the prudential right to invoke judicial estoppel against an attempt to shift the basis for jurisdiction to diversity of parties.
Where pendent state law claims raise sensitive and undeveloped questions of state law, the court does not abuse its discretion in declining to exercise supplementary jurisdiction and dismissing the pendent claims without prejudice.
Initial motion to dismiss did not ripen into grounds for the judgment, and is therefore unreviewable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1593P-01A.pdf
Where diversity jurisdiction is pleaded but conceded during the proceedings to be a fiction, the court has the prudential right to invoke judicial estoppel against an attempt to shift the basis for jurisdiction to diversity of parties.
Where pendent state law claims raise sensitive and undeveloped questions of state law, the court does not abuse its discretion in declining to exercise supplementary jurisdiction and dismissing the pendent claims without prejudice.
Initial motion to dismiss did not ripen into grounds for the judgment, and is therefore unreviewable.
http://media.ca1.uscourts.gov/pdf.opinions/17-1593P-01A.pdf
End of Day
8th and above out of scope. Slew of cases out of the 8th today.
Going to try to work back up to full daily coverage over the next week or so -- seems like a good goal to have.
-CB
Going to try to work back up to full daily coverage over the next week or so -- seems like a good goal to have.
-CB
Eighth Circuit: Bruce Munro v. Lucy Activewear, Inc.
Product's name served as a source-identifying device for trademark claim, as the plaintiff is the person who produces things of this name.
Light-based art installation is protected by copyright, not trademark.
No error in denial of leave to amend.
http://media.ca8.uscourts.gov/opndir/18/08/164483P.pdf
Light-based art installation is protected by copyright, not trademark.
No error in denial of leave to amend.
http://media.ca8.uscourts.gov/opndir/18/08/164483P.pdf
Sixth Circuit: Robert Davis v. Detroit Pub. Sch. Cmty. Dist.
Refusal to place ballot issue is not sufficiently concrete or particularized for standing. Placing tax decisions in the hands of the electorate means that redressibility for tax harms is uncertain.
Fifth Circuit: Stephanie Odle v. Wal-Mart Stores, Incorporated
Dissent from denial: ln the caselaw, where parties voluntarily dismiss the action, the court does not have sufficient authority over the case to consider whether other intervenors should be added.
Statement in support of denial of en banc: Minor exceptions from exigency.
http://www.ca5.uscourts.gov/opinions/pub/16/16-10347.CV1.pdf
Third Circuit: USA v. Chaka Fattah, Sr.
Trial court judge did not abuse discretion in interviewing jurors in the course of deliberations about the conduct of another juror.
No abuse of discretion in dismissal of juror for not deliberating where juror informed courthouse deputy that he intended to hold out "no matter what."
Jury instructions did not comport with Supreme Court holding issued after verdict but before sentencing on the scope of official acts within the bribery statute -- remanded.
Formal proposal for Congress to fund a specific project was a sufficiently official act.
Sufficient evidence for RICO conspiracy convictions.
&c, &c...
http://www2.ca3.uscourts.gov/opinarch/164397p.pdf
No abuse of discretion in dismissal of juror for not deliberating where juror informed courthouse deputy that he intended to hold out "no matter what."
Jury instructions did not comport with Supreme Court holding issued after verdict but before sentencing on the scope of official acts within the bribery statute -- remanded.
Formal proposal for Congress to fund a specific project was a sufficiently official act.
Sufficient evidence for RICO conspiracy convictions.
&c, &c...
http://www2.ca3.uscourts.gov/opinarch/164397p.pdf
Second Circuit: United States v. Alston
Off-duty police officer who carries a weapon at the direction of the police force can still be charged for possessing a weapon in furtherance of the illegal acts, as weapons can be possessed for multiple reasons.
No error in denial of new trial based on the fact that one of the witnesses mis-stated their employment status.
Post-verdict jailhouse infractions of witness do not give rise to a Brady claim.
No error in denial of minor participant sentencing reduction, as the deft's interference with law enforcement allowed criminal conspiracy to proceed; similar logic for obstruction and breach of trust sentencing enhancements.
Second Circuit: United States of America ex rel. Wood v. Allergan, Inc.
As the statute bars bringing a claim when another claim is pending (even under seal), amendment of claim subsequent to the end of the first-filed suit does not allow the later-filed suit to survive the statutory bar.
http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/doc/17-2191_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/doc/17-2191_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/hilite/
Second Circuit: Doe v. JPMorgan Chase Bank, N.A.
Where the federal victim recovery statute looks to state law to determine whether funds are within reach of the statute, a state law determination that electronically transferred funds are reachable only by the entity that transferred the funds to the electronic transfer holding means that the funds cannot be reached by the entity that transferred the funds to the transferring entity, as that would be a transfer in violation of regulations, which is prohibited by another law entirely.
http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/3/doc/17-759_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/3/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/3/doc/17-759_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/3/hilite/
Fourth Circuit: US v. Anthony Burfoot
Sufficient evidence for bribery. As the scheme, not state law, dictated the timing of tax payments sent online, sufficient evidence for wire fraud counts.
As payments were part of a continuous scheme, counts referencing earliest payments and Hobbs Act violation are not barred by the statute of limitations.
Indictment not amended by court's instruction during deliberations that the amount specified in the count was not an element of the offense.
Statement sufficiently material for the purposes of perjury where it is within the scope of the alleged conspiracy and casts doubt on the veracity of a key witness.
No error of denial of mistrial after speculative characterizations of fraud elicited on direct, given curative instruction and overwhelming amount of other evidence.
No abuse of discretion in barring consideration of newly discovered evidence of a witness' cognitive impairment.
Jury is presumed to follow the judge's instructions, so a five-hour deliberation that acquitted on two of the counts was a valid deliberation.
http://www.ca4.uscourts.gov/opinions/174266.P.pdf
As payments were part of a continuous scheme, counts referencing earliest payments and Hobbs Act violation are not barred by the statute of limitations.
Indictment not amended by court's instruction during deliberations that the amount specified in the count was not an element of the offense.
Statement sufficiently material for the purposes of perjury where it is within the scope of the alleged conspiracy and casts doubt on the veracity of a key witness.
No error of denial of mistrial after speculative characterizations of fraud elicited on direct, given curative instruction and overwhelming amount of other evidence.
No abuse of discretion in barring consideration of newly discovered evidence of a witness' cognitive impairment.
Jury is presumed to follow the judge's instructions, so a five-hour deliberation that acquitted on two of the counts was a valid deliberation.
http://www.ca4.uscourts.gov/opinions/174266.P.pdf
Fourth Circuit: Andrew Shaw v. Jefferson Sessions III
Immigration authority can look through convictions for inchoate offenses to determine if the underlying charged conduct bars withholding of removal.
Statutory list of documents that establish conviction for a predicate offense is not an exhaustive list of the manner in which the predicate offense can be proved.
Administrative challenge that the petitioner's conviction was not established by the statutory list does not appropriately exhaust a claim that the predicate conviction does not justify a withholding of removal.
http://www.ca4.uscourts.gov/opinions/171213.P.pdf
Statutory list of documents that establish conviction for a predicate offense is not an exhaustive list of the manner in which the predicate offense can be proved.
Administrative challenge that the petitioner's conviction was not established by the statutory list does not appropriately exhaust a claim that the predicate conviction does not justify a withholding of removal.
http://www.ca4.uscourts.gov/opinions/171213.P.pdf
Fourth Circuit: US v. Ancient Coin Collectors Guild
Domestic law implementing treaty that barred, upon request, the sale of ancient coins belonging to other nations properly divided the purposes of the treaty; it was therefore not necessary to prove at trial that the coin had been discovered in the country of the requesting state party, as the implementing law had allowed for administrative designation of classes of coins.
Court did not abuse its authority by requiring that the deft's expert testimony be about the particular coins at issue, rather than old coins generally.
Court did not abuse authority in excluding testimony that the coins had been passed legally from a third state into the US immediately prior to sale.
Where the administrative regulations implementing the domestic law, apparently due to a drafting error, changed the scope of enforcement, a fair notice defense doesn't bar enforcement where all parties seemed to be aware of which items were prohibited under the law.
Discovery properly limited. Court did not abuse its discretion in striking part of the amended answer that seemed outside of the remand from the court of appeals.
http://www.ca4.uscourts.gov/opinions/171625.P.pdf
Court did not abuse its authority by requiring that the deft's expert testimony be about the particular coins at issue, rather than old coins generally.
Court did not abuse authority in excluding testimony that the coins had been passed legally from a third state into the US immediately prior to sale.
Where the administrative regulations implementing the domestic law, apparently due to a drafting error, changed the scope of enforcement, a fair notice defense doesn't bar enforcement where all parties seemed to be aware of which items were prohibited under the law.
Discovery properly limited. Court did not abuse its discretion in striking part of the amended answer that seemed outside of the remand from the court of appeals.
http://www.ca4.uscourts.gov/opinions/171625.P.pdf
Second Circuit: Lucia Lopez Catzin v. Thank You & Good Luck Corp.
Dismissing a long-running action sua sponte due to the fact that only supplemental jurisdiction remains requires, for reasons of basic fairness and reliable decisionmaking, that the parties receive notice and an opportunity to be heard.
Court's assertion that the federal claims had been pretextually asserted in order to manufacture jurisdiction required investigation and careful findings.
If the court has found that the supplemental jurisdiction arises from the same case or controversy, the statute requires a explicit selection of one or more of the enumerated statutory reasons for declining to exercise jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/doc/17-2497_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/hilite/
Court's assertion that the federal claims had been pretextually asserted in order to manufacture jurisdiction required investigation and careful findings.
If the court has found that the supplemental jurisdiction arises from the same case or controversy, the statute requires a explicit selection of one or more of the enumerated statutory reasons for declining to exercise jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/doc/17-2497_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/hilite/
Second Circuit: United States v. Baker
Sufficient evidence for conviction where an accomplice testifies to all elements, regardless of credibility issues. Finder of fact is best positioned to make these determinations.
Post-verdict juror's email does not provide a sufficient basis for questioning the jury, as it does not clearly establish any non-speculative misconduct; discussions among jurors were not necessarily deliberations, and a juror's belief "at first sight" that the deft was guilty is not a sufficiently plain demonstration of racial animus.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/doc/16-2895_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/hilite/
Post-verdict juror's email does not provide a sufficient basis for questioning the jury, as it does not clearly establish any non-speculative misconduct; discussions among jurors were not necessarily deliberations, and a juror's belief "at first sight" that the deft was guilty is not a sufficiently plain demonstration of racial animus.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/doc/16-2895_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/hilite/
First Circuit: Puerto Rico Elec. Power Auth. v. Ad Hoc Group-PREPA Bondholders
In a municipal bankruptcy action, the court can issue relief from the stay for cause.
The Code's grant of exclusive jurisdiction over property does not prevent the Title III court from issuing relief from the stay so that a creditor can appoint a receiver in another forum.
http://media.ca1.uscourts.gov/pdf.opinions/17-2079P-01A.pdf
The Code's grant of exclusive jurisdiction over property does not prevent the Title III court from issuing relief from the stay so that a creditor can appoint a receiver in another forum.
http://media.ca1.uscourts.gov/pdf.opinions/17-2079P-01A.pdf
First Circuit: Peaje Investments LLC v. PR Highways and Transportation
Where plaintiff is asserting a lien interest claimed to be a statutory lien, court can strike claims arising from a lien that was perfected as a secured interest, so long as the claims are revisited if the lien is held to be non-statutory.
The creditor's interest, which arises under a resolution of the public utility authority pursuant to its organic act, is not a statutory lien, as the claim does not originate in an act of the legislature.
http://media.ca1.uscourts.gov/pdf.opinions/17-2165P-01A.pdf
The creditor's interest, which arises under a resolution of the public utility authority pursuant to its organic act, is not a statutory lien, as the claim does not originate in an act of the legislature.
http://media.ca1.uscourts.gov/pdf.opinions/17-2165P-01A.pdf
End of Day
And... Last Post. This Starbucks is determined to close, and is strict (and loud) in its arrest. Halfway through the Eighth.
TK, possibly:
http://media.ca8.uscourts.gov/opndir/18/08/171931P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171925P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/161847P.pdf
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
http://www.ca11.uscourts.gov/todays-published-opinions
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
Again, this site is just something that I do for batting practice. Don't rely, expect, or give credence.
-CB
TK, possibly:
http://media.ca8.uscourts.gov/opndir/18/08/171931P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171925P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/161847P.pdf
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
http://www.ca11.uscourts.gov/todays-published-opinions
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
Again, this site is just something that I do for batting practice. Don't rely, expect, or give credence.
-CB
Eighth Circuit: Landon Michael v. Joshua Trevena
Denial of qualified immunity for warrantless arrest grabbing plaintiff's throat and breaking his arm with a baton, as the cause of the arrest was a nonviolent misdemeanor. No basis for arrest, since the police officer had already decided that the statement was false, and the false staement statute requires that the statement mislead the police.
Dissent: Arguable probable cause -- might have proved confusing.
http://media.ca8.uscourts.gov/opndir/18/08/171946P.pdf
Dissent: Arguable probable cause -- might have proved confusing.
http://media.ca8.uscourts.gov/opndir/18/08/171946P.pdf
Eighth Circuit: Daaron McAdoo v. Amy Martin
Statute's requirement of physical injury is a threshold requirement to bar frivolous claims, so causation does not have to be established between the injury and the evil of the statute -- plaintiff can recover for any harms traceable to unconstitutional deliberate indifference so long as there is an injury associated with the claim.
http://media.ca8.uscourts.gov/opndir/18/08/171952P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171952P.pdf
Eighth Circuit: Randy Kinder Excavating v. JA Manning Construction Co.
No clear error in holding that general contractor's threatened withholding of payment and interference was the first material breach of agreement with contractor; contractor's continued performance made the termination of the agreement breach, since the fact that the contractor didn't formally challenge a corps of engineers decisions didn't present a per se claim of nonperformance. Damages reasonable.
http://media.ca8.uscourts.gov/opndir/18/08/172886P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172886P.pdf
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