Federal Circuit: Kimble v. US

 

Given that the taxpayer knew that they had a foreign bank account, the taxpayer didn't tell their accountant about the account, and the taxpayer signed the tax return, the court did not clearly err in finding a willful or reckless violation of the law.

The maximum penalty looks to the statute, rather than the regulation, since they contradict.

No error in mitigation, since the relevant mitigation guideline imposes the maximum penalty on accounts over a million dollars in value.

A foreign bank account is not in itself a property interest sufficient to establish a significant contact with the foreign country.

Plaintiff did not establish grounds for mitigation where the taxpayer is beneficiary of only part of the proceeds of the account.

Reference to an excess penalty in the filing did not preserve an Eighth Amendment claim.

Kimble v. US

Ninth Circuit: Academy of Country Music v. Continental Casualty Company

 

Since an order of remand deprives the nonmovant party of access to the federal courts, precedent dictates that the transmittal of the remand did not divest the court of jurisdiction or the appellate courts of the power to review the remand or any antecedent orders.  Since the sua sponte remand to state court rested upon the finding that the removing party must plausibly plead jurisdictional elements, and not upon the stated finding that there was no subject matter jurisdiction, the case falls outside the statute limiting jurisdiction and appeal after remand.

Academy of Country Music v. Continental Casualty Company

Ninth Circuit: Allied Premier Insurance v. United Financial Casualty

 

Question certified to California Supreme Court:  Under the statute, does a commercial vehicle insurance policy continue until notice of cancellation is delivered to the state, regardless of the expiration date of the policy?

Allied Premier Insurance v. United Financial Casualty

Eighth Circuit: Business Leaders In Christ v. The University of Iowa

 

Summary judgment based on qualified immunity for the defts was in error, since it was clearly established in both Supreme Court and Circuit precedent that university organizations were limited public forums not to be subjected to unreasonable or viewpoint-based discrimination.  The fact that the policy was unevenly enforced actually reinforces the suggestion of viewpoint discrimination.

As similar cases have been decided on Free Speech grounds, though, the relevant law on Free Exercise was not clearly established.

CONCURRENCE/DISSENT:

Unequal enforcement precludes a finding of facially neutral law of general applicability; the Free Exercise right was sufficiently clearly established.

Business Leaders In Christ  v.  The University of Iowa

Eighth Circuit: Brigido Lopez-Chavez v. Merrick B. Garland

 

Because the law asks whether the previous deportation was on the basis of a certain predicate crime, the court engages in the inquiry from the present time, and even where the non-retroactive determination that the crime was not a valid predicate came after the deportation, the inquiry, from the standpoint of the present time, properly determines that the earlier deportation was not on the basis of a valid predicate crime.

Brigido Lopez-Chavez  v.  Merrick B. Garland

Eighth Circuit: Jose Gutierrez-Gutierrez v. Merrick B. Garland

 

Although the immigration removal order signed at the end of the earlier proceedings was signed by the prosecuting authority at the direction of the IJ, there is sufficient evidence of a proper removal order, since both that version and a version later signed by the judge are in the administrative record.

Proper inspection and a procedurally regular admission at the border did not establish a lawful entry, since the statute prohibited entry for ten years after the earlier removal.

Board's correctly determined that, given the phrasing of the current statute, there is no miscarriage of justice exception to the prohibition on reopening a reinstated removal order.

Jose Gutierrez-Gutierrez  v.  Merrick B. Garland

Seventh Circuit: Apostolos Xanthopoulos v. LABR

 

Board's determination that, since the latter reports were not seeking precisely the same statutory remedy, earlier reports filed with the regulator did not equitably toll the statute of limitations for the second remedy, was sound and supported by adequate evidence.  

Apostolos Xanthopoulos v.  LABR

Sixth Circuit: United States v. Vladimir Manso-Zamora

 

There is no constitutional or statutory right to counsel in collateral statutory discretionary release proceedings.  Counsel engaged for proceedings in which the right to counsel attaches do not need to file an Anders brief before subsequently withdrawing from the representation.

United States v. Vladimir Manso-Zamora

Fifth Circuit: USA v. Kieffer, et al

 

Testimony of co-conspirator is sufficient evidence for conviction, unless the testimony is incredible or insubstantial on its face; it is for the finder of fact to weigh the credibility of the testimony.  De novo review, as both counsel recited the form of the motion for acquittal.

Proof of a phone call between the two at that time is sufficient evidence for having made a false material statement denying knowledge of a person's whereabouts.

Stipulation to felony status at trial is sufficient to establish contemporary knowledge of that status at the time of firearm possession.

Despite the fact that a large number of juror questions was allowed, deft has not identified, and the court has not found, any that indicate prejudice.

CONCURRENCE IN THE JUDGMENT:

The appeal of the felon in possession count shouldn't have been de novo, even arguendo.

USA v. Kieffer, et al

Fourth Circuit: US v. Hassan Ali

 

As the plain text of the witness sequestration rule only references exclusion from the courtroom, its presumption of prejudice does not extend to rulings that reach beyond that exclusion, where courts have more discretion.  Since deft's counsel could have consented to an alternate arrangement, and appropriate curative questioning was allowed, the fact that the codeft witnesses were in the same cells during the trial was not an abuse of discretion.

Denial of motion for new trial is not reviewed de novo when given without explanation where the grounds are apparent in the record.  Denial was appropriate where only new evidence was an affidavit from another prisoner that constitutes, at most, impeachment evidence.  Deft's own affidavit is not considered new evidence where it is duplicative of testimony at trial.

Aiding and abetting under the federal robbery statute is a valid predicate crime of violence due to the use of force.  It was error to instruct on an alternate theory of culpability, though, as conspiracy under the same statute is not a predicate crime of violence.  When one of two prongs might have served as the basis for conviction, the inquiry on appeal is a case-specific and fact-intensive one.

US v. Hassan Ali 

Third Circuit: Desmond Conboy v. SBA

 

As the appellant's brief was largely cut and pasted from a trial court filing,  appellee awarded damages under the Rules.  Award against client, but counsel ordered to pay.

Sanctions for making a frivolous argument at the District Court do not preclude sanctions for filing the same arguments on appeal.  Response to appellate sanctions motion needed to be more than a cut and paste from the trial level sanctions filing.

Desmond Conboy v. SBA

Second Circuit: Joseph Watley, Karin Hasemann v. Department of Children and Families

 

Under state's collateral preclusion principles, since the mental condition of the parents was sufficiently considered in the removal proceedings, the standard-specific question of sufficient accommodation can't be relitigated in federal court under the disabilities statute.

Joseph Watley, Karin Hasemann v. Department of Children and Families

Second Circuit: Joseph Watley, Karin Hasemann v. Department of Children and Families

 

Forging of clients' signatures on immigration petitions without the knowledge of the clients constitutes sufficient unauthorized use of their personal information under the aggravated identity theft statute.

Material falsity of the filing is sufficiently independent from the use of the forged signature to justify the independent sentencing increase.

Sufficient evidence for the relevant hundred-document threshold by a preponderance where it was established that 100 basically identical petitions of factual clams were filed.

CONCURRENCE:

While lawful, the indictment's additional charge of identity theft was possibly an unfair use of prosecutorial discretion.

Joseph Watley, Karin Hasemann v. Department of Children and Families

First Circuit: US v. Concepcion

 

Corrigendum.

 US v. Concepcion

First Circuit; Lopez-Rosario v. Programa Seasonal Head Start

 

Emendation.

Lopez-Rosario v. Programa Seasonal Head Start

First Circuit: Thile v. Garland

 

Agency's decision that petitioner had not established state of citizenship was supported by substantial evidence, given the small amount produced after continuance, and lack of explanation for the limited amount of proof.

IJ did not have to make a formal adverse credibility finding to justify rejection of the petitioner's claim as to country of citizenship and requirement of additional evidence.

Under firm resettlement principle, claim against deportation is heard based on the country from which the petitioner came to the US, and from which he held a valid passport, which, since logically possible, creates an inference of sufficient opportunity for permanent residence.

Thile v. Garland

First Circuit: US v. Ayala

 

Since the sentencing judge indicated that the eventual sentence was the correct sentence irrespective of the dispute over which sentencing guidelines should apply, the eventual application of the higher range was, at most, harmless error.

Sentencing judge's remark to witness was, at most, ill-advised attempt to put them at ease, insufficient for a determination of judicial bias.

US v. Ayala