As CB has a conference presentation to prepare, dissertation work to do, and wants to spend more quality time on bar prep, there will likely be no batting practice here next week.
G-d willin' and the crick don't rise, I'll likely be back the following week, or some time after that.
Keep yer stick on the ice.
-- CB
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Eleventh Circuit: Cozzi v. Thomas
Denial of qualified immunity for arrest when tips merely established present location of suspect, and that he matched the description; as tattoos were not examined and a bag of 32 pills was insufficient indication that suspect had taken six during the robbery, arrest was not arguably within reasonable suspicion.
http://media.ca11.uscourts.gov/opinions/pub/files/201711011.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201711011.pdf
Eleventh Circuit: Dennis Haynes v. Hooters of America, LLC
Suit seeking relief that is parallel to an already-agreed settlement with a third party is not moot, as there is no proof in the record of present compliance, no guarantee of ongoing compliance, and the plaintiff wouldn't have standing to enforce the third-party agreement.
http://media.ca11.uscourts.gov/opinions/pub/files/201713170.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201713170.pdf
DC Circuit: USA v. Marlon Haight
No abuse of discretion in denial of delay in trial when gov't moves to include new holograph evidence two weeks before trial.
Harmless non-abuse-of-discretion to allow hearsay report of identification of deft, as declarant was available to testify at trial, and did testify at trial, and, on direct, didn't remember the identification.
No abuse of discretion in admission of deft's holograph writings in backpack, as sufficiently authenticated, and probative of deft's ownership of backpack and general knowledge of guns and drugs.
Ineffective assistance remanded for factual development.
District Assault with a Dangerous Weapons statute is a valid ACCA predicate, given its elements; a violent force can be indirect or made with merely reckless intent.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6DDDED8EB99FE1A5852582B4004FFDDF/$file/16-3123.pdf
Harmless non-abuse-of-discretion to allow hearsay report of identification of deft, as declarant was available to testify at trial, and did testify at trial, and, on direct, didn't remember the identification.
No abuse of discretion in admission of deft's holograph writings in backpack, as sufficiently authenticated, and probative of deft's ownership of backpack and general knowledge of guns and drugs.
Ineffective assistance remanded for factual development.
District Assault with a Dangerous Weapons statute is a valid ACCA predicate, given its elements; a violent force can be indirect or made with merely reckless intent.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6DDDED8EB99FE1A5852582B4004FFDDF/$file/16-3123.pdf
DC Circuit: Ameren Services Company, et al v. FERC
A regulated party has standing to challenge the regulation.
Question is ripe, as possible future displacement of a utility's approved projects due to the change in the cost allocation scheme's structure is conceded by all parties, and further factual development wouldn't speak to the question of law at issue.
Claim first made in Article III review that the agency impermissibly shifted the burden of proving reasonableness to the utility needed to be exhausted in the pertition for agency review.
On merits, Commission's ruling that already-approved projects needed to be revisited in light of the regionally interconnected projects was not arbitrary or capricious, as there are public policy benefits from that sort of thing, and proper accounting for the interregional projects requires integration of the costs of the already-approved projects.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6440A9564E36D841852582B4004FED20/$file/16-1150.pdf
Question is ripe, as possible future displacement of a utility's approved projects due to the change in the cost allocation scheme's structure is conceded by all parties, and further factual development wouldn't speak to the question of law at issue.
Claim first made in Article III review that the agency impermissibly shifted the burden of proving reasonableness to the utility needed to be exhausted in the pertition for agency review.
On merits, Commission's ruling that already-approved projects needed to be revisited in light of the regionally interconnected projects was not arbitrary or capricious, as there are public policy benefits from that sort of thing, and proper accounting for the interregional projects requires integration of the costs of the already-approved projects.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6440A9564E36D841852582B4004FED20/$file/16-1150.pdf
Federal Circuit: Starry Associates v. US
The statute authorizing an award of fees does not contemplate egregiously dilatory agency conduct as a basis for increasing the base rate of compensation; as the "special factor" basis is listed with a "cost of living" basis, the statute authorizes increases in the award where the base rate is insufficient due to the character of the representation. Because noscitur.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2148.Opinion.6-22-2018.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2148.Opinion.6-22-2018.pdf
Tenth Circuit: United States v. Vance
If the traffic stop on a theory of presenting a hazard to others was due to a mistake of law, it was a reasonable mistake of law, given the state's law about changing lanes.
As an element of the lane-changing law is the driver's omission of checking to see if the lane is clear, the police had reasonable cause for the stop in order to determine if the required visual check had been performed.
https://www.ca10.uscourts.gov/opinions/17/17-2008.pdf
As an element of the lane-changing law is the driver's omission of checking to see if the lane is clear, the police had reasonable cause for the stop in order to determine if the required visual check had been performed.
https://www.ca10.uscourts.gov/opinions/17/17-2008.pdf
Tenth Circuit: United States v. Pacheco-Donelson
No plain error in procedural reasonableness of supervised release condition barring all contact with gang members--including family members--as deft had the burden to prove close association.
No abuse of discretion in substantive reasonableness of same condition, given past extensive gang associations and the need to protect the public.
https://www.ca10.uscourts.gov/opinions/17/17-1180.pdf
No abuse of discretion in substantive reasonableness of same condition, given past extensive gang associations and the need to protect the public.
https://www.ca10.uscourts.gov/opinions/17/17-1180.pdf
Ninth Circuit: Jeffrey Short v. Edmund G. Brown
No abuse of discretion in denial of injunction against voting-by-mail scheme, as there is no burden placed on the voters, and, under current precedent, a claim of vote dilution would have to allege a discriminatory allocation of votes, not the de minimis individual burden here.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/22/18-15775.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/22/18-15775.pdf
Ninth Circuit: Shame On You Productions, Inc. v. Elizabeth Banks
No abuse of discretion in awarding fees to deft in a copyright action, as the claim was denied after an extrinsic review of the scripts, and the plaintiff did not timely provide their script; recent circuit precedent emphasizing the reasonability of the litigating position does not compel the award to be revisited.
State breach of implied contract intermixed with question of infringement, court's non-apportionment of that portion was therefore justified.
No abuse of discretion in the reasonableness of the fees.
Motion for fees timely e-filed, but in the wrong category and then later filed in the correct category was properly considered, as the time limit isn't jurisdictional.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/21/16-55024.pdf
State breach of implied contract intermixed with question of infringement, court's non-apportionment of that portion was therefore justified.
No abuse of discretion in the reasonableness of the fees.
Motion for fees timely e-filed, but in the wrong category and then later filed in the correct category was properly considered, as the time limit isn't jurisdictional.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/21/16-55024.pdf
Eighth Circuit: Santos Rosales-Martinez v. Nick Ludwick
State court's re-imposition of limits on the confrontation of a witness during retrial after simply adopting the findings of the previous proceeding is not contrary to, or an unreasonable application of federal law on the subject.
http://media.ca8.uscourts.gov/opndir/18/06/171910P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/171910P.pdf
Eighth Circuit: Bobby Hargis v. John Koskinen
Owner of passthrough corporations must establish an actual outlay of resources to establish sufficient basis in the corporation to list the corporations losses on their taxes. Signing as a co-borrower a corporate loan does not establish a personal outlay.
[again, folks, this site doesn't contain advice of any kind.]
http://media.ca8.uscourts.gov/opndir/18/06/171694P.pdf
[again, folks, this site doesn't contain advice of any kind.]
http://media.ca8.uscourts.gov/opndir/18/06/171694P.pdf
Eighth Circuit: United States v. Gervais (Ken) Ngombwa
No ineffective assistance where attorney declines to investigate family relations, thinking there to be a substantial likelihood that unsavory details might be discovered.
Misstatements to agency properly grouped with later immigration offenses, as the purpose of the agency action was immigration enforcement, which serves society -- the victims were identical.
No Ex Post Facto violation in using a version of the sentencing guidelines in effect at the time of the later crimes that contains a new enhancement relevant to the earlier crimes, as sufficient notice before the later crimes is presumed.
No abuse of discretion in use of foreign convictions as proxies for the factual finding that the criminal history level underrated the deft's acts.
No abuse of discretion in use of genocide witness statements -- if hearsay, they had sufficient indicia of credibility.
Foreign expert testifying on video-link at sentencing is not unreliably unsworn.
http://media.ca8.uscourts.gov/opndir/18/06/187168P.pdf
Misstatements to agency properly grouped with later immigration offenses, as the purpose of the agency action was immigration enforcement, which serves society -- the victims were identical.
No Ex Post Facto violation in using a version of the sentencing guidelines in effect at the time of the later crimes that contains a new enhancement relevant to the earlier crimes, as sufficient notice before the later crimes is presumed.
No abuse of discretion in use of foreign convictions as proxies for the factual finding that the criminal history level underrated the deft's acts.
No abuse of discretion in use of genocide witness statements -- if hearsay, they had sufficient indicia of credibility.
Foreign expert testifying on video-link at sentencing is not unreliably unsworn.
http://media.ca8.uscourts.gov/opndir/18/06/187168P.pdf
Eighth Circuit: Mario Ortiz v. Ferrellgas Partners
Where injunctive antitrust relief is sought, and the remedy parallels existing FTC consent orders, the complaint, to establish an injury, must contain sufficient factual content to support the rational inference that the nonmovant has violated the consent orders.
Indirect purchasers cannot seek disgorgement, given the risk of multiple and inconsistent proceedings.
Remanded to consider if state law claims are sufficient to retain jurisdiction.
http://media.ca8.uscourts.gov/opndir/18/06/164086P.pdf
Indirect purchasers cannot seek disgorgement, given the risk of multiple and inconsistent proceedings.
Remanded to consider if state law claims are sufficient to retain jurisdiction.
http://media.ca8.uscourts.gov/opndir/18/06/164086P.pdf
Seventh Circuit: USA v. Jose Maldonado
Sufficient evidence for conspiracy, as the distrustful arms-length relationship with the drug supplier was extensive, and occasionally worked on credit; a second connection between two dealers described as brotherly in fact speaks to the closeness of the conspirators.
Multiple conspiracies instruction proper, as there was no necessary hub to the group.
No error in denial of meeting-of-the-minds instruction, as distrust among the participants did not negate the business purpose of their association.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:17-1402:J:Bauer:aut:T:fnOp:N:2174265:S:0
Multiple conspiracies instruction proper, as there was no necessary hub to the group.
No error in denial of meeting-of-the-minds instruction, as distrust among the participants did not negate the business purpose of their association.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:17-1402:J:Bauer:aut:T:fnOp:N:2174265:S:0
Seventh Circuit: Brooks Goplin v. WeConnect, Incorporated
No clear error where the court reviews a website discussed in briefing and uses the content in coming to a decision, as the other party had to carry the burden, and the proof introduced was minimal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:18-1193:J:Barrett:aut:T:fnOp:N:2174452:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:18-1193:J:Barrett:aut:T:fnOp:N:2174452:S:0
Sixth Circuit: Filippo Leone v. BMI Refractory Servs., Inc.
Under state law, third party contractor has separate and distinct duty of care towards employees to avoid harmful acts when it is contracted to handle a pre-existing hazard.
Sixth Circuit: United States v. Clifton Satterwhite
As the statute requiring indictment within 30 days is followed by a provision mandating a speedy trial, and the latter clause establishes that the right in "this section" is waived if not asserted, that qualification can be imputed to the first clause.
An untimely indictment is therefore not a jurisdictional flaw, and a deft who waived all challenges to earlier proceedings is validly sentenced after receiving an indictment defective under the statute.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0118p-06.pdf
An untimely indictment is therefore not a jurisdictional flaw, and a deft who waived all challenges to earlier proceedings is validly sentenced after receiving an indictment defective under the statute.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0118p-06.pdf
Sixth Circuit: United States v. Frank Susany, Jr.
Error for sentencing court not to consider reduction due to the fact that the conspiracy hadn't gotten very far along, but since the error entitled the deft to a greater reduction for acceptance of responsibility and the court subsequently varied downwards to a level beneath the correct guidelines range, there was no prejudice. Harmless error.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0117p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0117p-06.pdf
Sixth Circuit: United States v. Jamal Cooper
Wiretap Act does not require a different application for each authorization, but merely that each application conform to the Act.
No clear error in authorizing the tap where many of the alternatives were discounted prospectively.
No error in denial of Franks hearing where the challenged omissions on the affidavit might be construed from the contents of the affidavit.
Sealing and delivery of tapes four days after the end of the tap did not transgress the two-day limit, as the government needed to confirm that the deft was no longer using that line.
Where trial judge accepts govt contention at trial that the content of the recorded conversation establishes that the confidential informant consented to the taping, no clear error in the admission of the tapes.
Parolee confidential informers can validly consent to the taping of conversations.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0116p-06.pdf
No clear error in authorizing the tap where many of the alternatives were discounted prospectively.
No error in denial of Franks hearing where the challenged omissions on the affidavit might be construed from the contents of the affidavit.
Sealing and delivery of tapes four days after the end of the tap did not transgress the two-day limit, as the government needed to confirm that the deft was no longer using that line.
Where trial judge accepts govt contention at trial that the content of the recorded conversation establishes that the confidential informant consented to the taping, no clear error in the admission of the tapes.
Parolee confidential informers can validly consent to the taping of conversations.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0116p-06.pdf
Fifth Circuit: Robert Furlough v. Lowell Cage
Owner of debtor corporation who was joined to a pendent civil suit does not have standing to challenge engagement of special counsel as veil-piercing expert in the bankruptcy suit on the basis that the appointee is affiliated with one of the creditors and would act in a manner adverse to the estate.
Standing is determined at the time of filing -- an after-acquired interest in the estate does not convert the plaintiff's interest to that of a creditor for purposes of standing.
[caveat -- quick work. as always, entertainment purposes only.]
http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV0.pdf
Standing is determined at the time of filing -- an after-acquired interest in the estate does not convert the plaintiff's interest to that of a creditor for purposes of standing.
[caveat -- quick work. as always, entertainment purposes only.]
http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV0.pdf
Fifth Circuit: Lois Davis v. Fort Bend County
Plain error where the deft's sentence was twice the correct amount after the court counted a state conviction for a crime that is more broadly defined than the generic federal version used in sentencing.
http://www.ca5.uscourts.gov/opinions/pub/16/16-41378-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/16/16-41378-CR0.pdf
Fourth Circuit: Lee Malvo v. Randall Mathena
Given the substantive right of a juvenile not to be sentenced to a mandatory life without parole sentence articulated by the Supreme Court and made retroactive to cases on collateral review, petitioner's initial sentencing must be reviewed, as it was unclear at trial whether the judge could suspend part of the life sentence, and additionally, relief might be warranted outside of mandatory sentences in the strict sense.
As there was no finding of incorrigibility, the jury's vote for life without parole needs to be revisited. Additional sentences imposed under plea deal are not shielded from review by the appeals waiver, as collateral challenges of new rights and assertions of substantive constitutional violations weren't enforceably waived.
Interesting peroration.
http://www.ca4.uscourts.gov/opinions/176746.P.pdf
As there was no finding of incorrigibility, the jury's vote for life without parole needs to be revisited. Additional sentences imposed under plea deal are not shielded from review by the appeals waiver, as collateral challenges of new rights and assertions of substantive constitutional violations weren't enforceably waived.
Interesting peroration.
http://www.ca4.uscourts.gov/opinions/176746.P.pdf
Second Circuit: United States v. Olmeda
Where conduct relevant to the offense (here, grounds for a sentence enhancement) is the subject of a contemporaneous prosecution in state court, the federal sentencing court must consider the Guidelines instruction that the terms are to run concurrently; there is no requirement that the state prosecution be on the docket at the time of federal sentencing.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/doc/15-3449_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/doc/15-3449_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/1/hilite/
Second Circuit: Copeland v. Vance
As plaintiffs seek relief holding the law void for vagueness as to an entire category of folding knives, the challenge is construed as a facial challenge; a past enforcement against one of the plaintiffs provided sufficient notice of the proscribed activity, establishing that it is possible to enforce the law constitutionally -- therefore not facially unconstitutional. While it is possible to enforce the law in a discriminatory manner, and there might be evidence of this discrimination in past enforcement, the law itself does not unduly invite such discrimination.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/doc/17-474_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/doc/17-474_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/hilite/
Second Circuit: Villanueva v. United States of America
Given Supreme Court precedent relating to another statute, a state Assault statute is a valid violent crime predicate under modified categorical review.
Dissent: All the courts are doing it, but that doesn't make it right. Scotus specifically said it doesn't apply in this context; where the statute applies to non-forceful harm such as poison, it's an offensive touching, not a use of force.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/doc/16-2528_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/hilite/
Dissent: All the courts are doing it, but that doesn't make it right. Scotus specifically said it doesn't apply in this context; where the statute applies to non-forceful harm such as poison, it's an offensive touching, not a use of force.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/doc/16-2528_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/hilite/
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