Error on admission of prior conviction was invited, as counsel insisted that it be included.
No plain error in lack of special unanimity instruction.
No error in use of the term "narcotics" in Burglary instruction where illegal nature of drugs was necessarily implied.
Sufficient evidence for constructive possession inside the apartment.
Plea colloquy impermissibly suggested that deft may later challenge the reasonableness of the sentence.
Clear error for the sentencing court not to refer to the sentencing guidelines' recommendation that the sentence be imposed to run concurrent with the prior sentence.
Upward variance insufficiently explained.
Concurrence: acquitted conduct shouldn't be used to increase the sentence.
Dissent in part: Terms of written waiver were plain, upward departure sufficiently explained.
https://www.cadc.uscourts.gov/internet/opinions.nsf/11D51D8162565F72852582AD0054B1E6/$file/15-3056-1736068.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
DC Circuit: US v. Calvin Stoddard
Description of the investigation to this point and agent's general expertise established sufficient necessity for the wiretap order.
Insufficient evidence for money-laundering conviction, as the vehicle purchase was open, and there was insufficient evidence of intentionally promoting the illegal activity.
Sufficient evidence for conspiracy, despite unreliable witness.
Deft decision not to testify waived challenge to ruling that he could be impeached on cross with prior conviction.
Each member of the conspiracy must have sufficient knowledge or foreseeable understanding of drug amounts triggering mandatory minimums for those minimums to apply. Circuit split flagged.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CF9C2E37DB18AFB9852582AD015-306054B206/$file/0-1736057.pdf
Insufficient evidence for money-laundering conviction, as the vehicle purchase was open, and there was insufficient evidence of intentionally promoting the illegal activity.
Sufficient evidence for conspiracy, despite unreliable witness.
Deft decision not to testify waived challenge to ruling that he could be impeached on cross with prior conviction.
Each member of the conspiracy must have sufficient knowledge or foreseeable understanding of drug amounts triggering mandatory minimums for those minimums to apply. Circuit split flagged.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CF9C2E37DB18AFB9852582AD015-306054B206/$file/0-1736057.pdf
DC Circuit: Old Dominion Electric v. FERC
Filed rate doctrine and the prohibition on retroactive ratemaking barred utility's waiver request, as the extraordinary circumstances encountered were outside the specific mechanisms of the rates.
Market monitor has no legally cognizable interest, and therefore no standing to intervene; amicus instead.
https://www.cadc.uscourts.gov/internet/opinions.nsf/B88CD5B756357184852582AD0054B21C/$file/16-1111-1736083.pdf
Market monitor has no legally cognizable interest, and therefore no standing to intervene; amicus instead.
https://www.cadc.uscourts.gov/internet/opinions.nsf/B88CD5B756357184852582AD0054B21C/$file/16-1111-1736083.pdf
DC Circuit: Duke Energy v. FERC
Utility's insistence on full performance of the facility and characterization of the obligation as "not economic" was not a directive to purchase the costly fuel that would have ensured continued operation, and there was consequently no indemnification.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7B92A385E50E4C04852582AD0054B231/$file/16-1133-1736096.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/7B92A385E50E4C04852582AD0054B231/$file/16-1133-1736096.pdf
DC Circuit: Island Architectural Woodwork v. NLRB
Given the substantially identical business, substantive control, and anti-union sentiment evinced, substantial evidence for Board's finding that diversion of part of production to a building out back supervised by the CEO's daughter was in fact a corporate alter ego.
https://www.cadc.uscourts.gov/internet/opinions.nsf/122F0282A1444FB7852582AD0054EF86/$file/16-1303.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/122F0282A1444FB7852582AD0054EF86/$file/16-1303.pdf
DC Circuit: Tamosiunus v. NLRB
No rational basis to think that Local's collection letter and employer's subsequent collection of full dues from employees who had requested financial core status could not be thought by a rational person to tend to restrain or coerce employees not to enforce their rights under the Act.
https://www.cadc.uscourts.gov/internet/opinions.nsf/9B76B67B9F567375852582AD0054B245/$file/16-1338-1736047.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/9B76B67B9F567375852582AD0054B245/$file/16-1338-1736047.pdf
DC Circuit: US v. Guadalupe Galaviz
When challenging a district court's procedurally correct decision not to lower a sentence imposed with reference to subsequently retroactively amended guidelines ranges, the petitioner must establish that the decision to leave the original sentence in place is itself substantively unreasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/2F95E99A58F5CD4D852582AD0054B25F/$file/16-3052-1736019.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/2F95E99A58F5CD4D852582AD0054B25F/$file/16-3052-1736019.pdf
DC Circuit: US v. Ernest Akers
Retroactive revision in the sentencing guidelines did not modify the career offender guidelines for the offense, even where sentence was imposed according to plea with a substantial downward revision from the career offender level.
https://www.cadc.uscourts.gov/internet/opinions.nsf/D7C57C92A4A99672852582AD0054C99D/$file/17-3095.pdf
DC Circuit: Citizens for Responsibility v. FEC
Given presumption of unreviewability of agency's discretionary enforcement decisions, commission's decision not to enforce after tied vote is not reviewable under organic statute or APA. Plaintiff does not identify the specific statutory provision violated by inaction.
Dissent: It was a reasoned application of facts to law; inaction violates the organic statute, which sets a sufficiently specific task to overcome the presumption.
Federal Circuit: Sifab Solar, Inc. v. US
Where there is no probability of success on the merits, a preliminary injunction is not reviewed under a sliding scale as to the merits.
Congruency between presidential order on tarriffs and the commission's recommendations is a matter for Congress; commission findings did not preclude the tarriff under the NAFTA enablement act.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1718.Opinion.6-15-2018.pdf
Congruency between presidential order on tarriffs and the commission's recommendations is a matter for Congress; commission findings did not preclude the tarriff under the NAFTA enablement act.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1718.Opinion.6-15-2018.pdf
Federal Circuit: Xitronix Corp. v. KLA - Tencor Corp.
Denial of en banc.
Dissent from denial: Where plaintiff does not allege any non-patent-law theory of harm in an antitrust suit, the circuit is not divested of jurisdiction to hear the claim, given statutory grant of jurisdiction.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2746.Order.6-15-2018.1.pdf
Dissent from denial: Where plaintiff does not allege any non-patent-law theory of harm in an antitrust suit, the circuit is not divested of jurisdiction to hear the claim, given statutory grant of jurisdiction.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2746.Order.6-15-2018.1.pdf
Seventh Circuit: Kimberly Flanagan v. Office of the Chief Judge
Plaintiff's report of being told by a co-worker that others were conspiring to kill her was inadmissible double hearsay.
Ominous threats in parking lot were scattered empty threats, insufficient to state a claim for a hostile work environment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-1927:J:PerCuriam:aut:T:fnOp:N:2171849:S:0
Ominous threats in parking lot were scattered empty threats, insufficient to state a claim for a hostile work environment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-1927:J:PerCuriam:aut:T:fnOp:N:2171849:S:0
Seventh Circuit: Wendell Weaver v. Walter Nicholson
State Habeas court reasonably applied governing precedent in holding that disqualification of deft's chosen counsel due to representation of potential prosecution witness didn't violate the right; the third party representation here was much closer than in the precedent to the contrary.
Trial counsel not crossing on a particular point didn't prejudice the petitioner, as the witness' credibility was attacked elsewhere.
Petitioner didn't show that trial counsel didn't investigate a potential witness, merely that the witness wasn't called, which must be presumed to be a strategic decision.
Claim based in reported statements of witness who died shortly afterwards was procedurally defaulted for not being raised on direct review, and would have been considered inadmissible hearsay under governing Supreme Court precedent.
Pre-trial inconsistencies and post-trial recantation insufficient to establish Due Process violation for prosecution witness' perjury, given state court finding to contrary.
Admission of prior bad acts claim procedurally defaulted.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-2400:J:Kanne:aut:T:fnOp:N:2171664:S:0
Trial counsel not crossing on a particular point didn't prejudice the petitioner, as the witness' credibility was attacked elsewhere.
Petitioner didn't show that trial counsel didn't investigate a potential witness, merely that the witness wasn't called, which must be presumed to be a strategic decision.
Claim based in reported statements of witness who died shortly afterwards was procedurally defaulted for not being raised on direct review, and would have been considered inadmissible hearsay under governing Supreme Court precedent.
Pre-trial inconsistencies and post-trial recantation insufficient to establish Due Process violation for prosecution witness' perjury, given state court finding to contrary.
Admission of prior bad acts claim procedurally defaulted.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-2400:J:Kanne:aut:T:fnOp:N:2171664:S:0
Seventh Circuit: J. Donald Henson, Sr. v. HHS
FOIA does not create a cause of action against individual employees.
No error in magistrate's case managment order setting a summary judgment motion prior to discovery.
Agency's search and redactions were proper; plaintiff did not challenge specific exemptions.
No clear error in agency exemptions for attorney/client privilege, trade secret, and personnel reasons.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-1750:J:Hamilton:aut:T:fnOp:N:2171542:S:0
No error in magistrate's case managment order setting a summary judgment motion prior to discovery.
Agency's search and redactions were proper; plaintiff did not challenge specific exemptions.
No clear error in agency exemptions for attorney/client privilege, trade secret, and personnel reasons.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-1750:J:Hamilton:aut:T:fnOp:N:2171542:S:0
Seventh Circuit: Eli Lilly v. Arla Foods, Inc.
Preliminary injunction under the Lanham Act appropriately issued where a single supplier ends use of the product; causation can be inferred from the demonization of the product, and no hard evidence of consumer confusion is necessary at the stage of preliminary injunction.
Injunction was not overbroad in barring a wide variety of cartoon ogres and substantially similar messages.
Concurring in part, concurring in j: District court findings on actual confusion weren't raised in the interlocutory appeal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-2252:J:Sykes:aut:T:fnOp:N:2171872:S:0
Injunction was not overbroad in barring a wide variety of cartoon ogres and substantially similar messages.
Concurring in part, concurring in j: District court findings on actual confusion weren't raised in the interlocutory appeal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-2252:J:Sykes:aut:T:fnOp:N:2171872:S:0
Seventh Circuit: Part-time Faculty Association v. Columbia College Chicago
Where a Board representation decision partially grounded in an interpretation of the terms of the CBA conflicts with a subsequent artbitrator's ruling on the question of representation, the latter is unenforceable as to the representation, as the parties in the second proceeding are bargaining for the arbitrator's opinion, not the Board's interpretation of the Act.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-3492:J:Flaum:aut:T:fnOp:N:2171484:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-3492:J:Flaum:aut:T:fnOp:N:2171484:S:0
Fourth Circuit: Rhonda L. Hutton v. National Board of Examiners
Where the fraudulent opening of lines of credit in plaintiffs' name can be plausibly traced to the deft's data breach, plaintiffs have suffered, at minimum, sufficient concrete and particular imminent harm to state a claim.
Fourth Circuit: Plaintiffs Appealing CMO 100 v. Pfizer
No error in exclusion of expert testimony under Daubert where statistician performed a wide range of analyses to verify the legitimacy of the analysis, but excluded the other tests from testimony, and further impermissibly used an indicator for the medical condition as evidence of the medical condition.
No error in exclusion of second expert where stepped dosage conclusions were impermissibly based on conclusions as to lowest dosage that were based on a statistically insignificant association, since this manner of analysis is not generally accepted.
No error in exclusion of third expert, as differential diagnosis methodology did not sufficiently account for alternative causation.
Deft admissions almost never sufficient basis to survive summary judgment, where the claim is too complex for the average juror.
Summary judgment grant across the MDL was an appropriate use of judicial resources.
http://www.ca4.uscourts.gov/opinions/171140.P.pdf
No error in exclusion of second expert where stepped dosage conclusions were impermissibly based on conclusions as to lowest dosage that were based on a statistically insignificant association, since this manner of analysis is not generally accepted.
No error in exclusion of third expert, as differential diagnosis methodology did not sufficiently account for alternative causation.
Deft admissions almost never sufficient basis to survive summary judgment, where the claim is too complex for the average juror.
Summary judgment grant across the MDL was an appropriate use of judicial resources.
http://www.ca4.uscourts.gov/opinions/171140.P.pdf
Fourth Circuit: Shari Renee Lauflett v. Commissioner
Jurisdiction grant inside parentheticals in a prefatory part of the statute makes appeals time limit jurisdictional; in addition to plain language, the fact that collections actions can't be enjoined absent a timely filing, and agency can't collect until after the cutoff establish the reading.
http://www.ca4.uscourts.gov/opinions/171986.P.pdf
http://www.ca4.uscourts.gov/opinions/171986.P.pdf
Fourth Circuit: US v. Darra Lee Shephard
No error in sentencing determination that vulnerable victims were targeted by telemarketing scheme and deft was aware of theiir vulnerability, as scheme targeted those who had already fallen for it once.
No error in loss calculation that incorporated uncharged wire transfers, as they were clear from the face of the indictment.
No error in sentencing finding that deft was culpable for conspiracy until 2015, despite ending work there in 2012, as deft stipulated to involvement in the facts incorporated in the plea, and, in the alternative, exit wasn't strong enough to end conspiracy liability.
http://www.ca4.uscourts.gov/opinions/174148.P.pdf
No error in loss calculation that incorporated uncharged wire transfers, as they were clear from the face of the indictment.
No error in sentencing finding that deft was culpable for conspiracy until 2015, despite ending work there in 2012, as deft stipulated to involvement in the facts incorporated in the plea, and, in the alternative, exit wasn't strong enough to end conspiracy liability.
http://www.ca4.uscourts.gov/opinions/174148.P.pdf
Fourth Circuit: Maricela Martinez v. Jefferson B. Sessions III
As no jury unanimity as to the theory of the offense is required, statute is not susceptible to modified categorical review.
Assuming that the 'substantial erosion' of property rights required for the agency standard of theft convictions is valid and applies here, since the law sweeps beyond that to incorporate things like joyriding, the agency erred in holding the state conviction to be a crime of moral turpitude justifying refusal of withholding of removal.
http://www.ca4.uscourts.gov/opinions/171301.P.pdf
Assuming that the 'substantial erosion' of property rights required for the agency standard of theft convictions is valid and applies here, since the law sweeps beyond that to incorporate things like joyriding, the agency erred in holding the state conviction to be a crime of moral turpitude justifying refusal of withholding of removal.
http://www.ca4.uscourts.gov/opinions/171301.P.pdf
Third Circuit: USA v. Juan Ramos
Statute is divisible for purposes of modified categorical review despite the fact that governing precedent allows indictment and conviction without requiring the finder of fact to agree on the theory of the crime; i.e., a jury could split between the elements.
State statute categorically a crime of violence, as it is inconceivable that someone could try to injure another with a deadly weapon without using force.
http://www2.ca3.uscourts.gov/opinarch/172720p.pdf
State statute categorically a crime of violence, as it is inconceivable that someone could try to injure another with a deadly weapon without using force.
http://www2.ca3.uscourts.gov/opinarch/172720p.pdf
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