Tenth Circuit: Hampton v. Utah Department of Corrections

 A preexisting disability-neutral list of approved firearms for correctional peace officers cannot be the sole basis for denying a disability-related request to use another type of firearm. The request was plausible and facially reasonable.

Claim of instructions to delay accommodation requests until after initial probationary period does not present an issue for trial as to the existence of a discriminatory policy. A claim that accommodation requests "generally filter up" to the decisionmaker does not, standing alone, present a genuine issue for trial as to whether the decisionmaker was aware of the request.

Court did not abuse discretion in refusing to allow plaintiff to testify about the disability as an expert, given lack of proof of reliable scientific methodology.  

Hampton v. Utah Department of Corrections

Eighth Circuit: United States v. Juanita White Shield

 Court did not abuse discretion in denying mistrial where a witness referred more than once to the deft being on probation.  Evidence of guilt was more than ample, and a limiting instruction sufficed.  

Where a court waives interest for a monetary penalty in the delivered judgment, but this term is omitted from the written judgment, the delivered version controls.

United States  v.  Juanita White Shield

Sixth Circuit: United States v. James Wilder, II

 No plain error in admission of testimony on competence of police officer in identifying a firearm, where a prejudicial inference might have existed that firearms were common in the area.

Rational factfinder could have found that the deft's statements were a substantial step towards witness tampering, distinct from solicitation, in that they counseled, commanded, or induced someone to engage in the practice.

Represented deft's pro se motions by letter separate from attorney's filing not considered. 

United States v. James Wilder, II

Fifth Circuit: USA v. Robinson

 Sufficient evidence for the jury to have disbelieved the witness' recantation.  Sufficient evidence for the federal obstruction charge where the prompting was procedurally about a separate state investigation, but dealt in substance with the set of events that became a federal matter.

Absent specific briefing, body camera footage outside of the portion agreed to be admissible as a prior statement of identification isn't coherent enough for appellate review as to specific statements. Admission not substantial injury and cumulative in nature with respect to admissible evidence.  Portions of phone calls admitted for context with admissible portions of the call, but without a limiting instruction, were harmless error, as they were cumulative with admissible statements elsewhere. Deft did not identify portions of the record that would justify a prior-inconsistent-statements instruction. Closing remarks were not improper, as they accurately characterized the victims as vulnerable, the invocation of justice was not calculated to inflame, inferences were appropriately made from the evidence, and the court appropriately limited the influence of the lawyers' opinions in the closing instruction.

Plain error where the court indicated that it might be bound by the earlier sentencing judge's order that the sentence for revocation of supervised release run consecutively with the subsequent sentence for the second offense.  

USA v. Robinson

Fifth Circuit: Marquette Trans v. Navigation Mrtm

 Although the appellant LLC did not sufficiently establish diversity jurisdiction by pleading the citizenship of all of it members, the fact that its claims sound in admiralty is sufficient for appellate jurisdiction, and the pleading should be amended on remand.

As state harbor pilotage regulation is a statutory exception to the general preemption of admiralty, the higher burden of proof under state law is not preempted by the preponderance standard of admiralty.

The pretrial objection to the admission of the evidence sufficiently preserved the issue for appeal; the argument in a separate pretrial motion that the evidence was inadmissible as summary evidence did not. Challenge to the admission of the accident reconstruction was harmless, as there was ultimately no claim that it was inaccurate or unreliable,

Motion to strike the jury demand for lack of the amount in controversy and an implied consent to proceed in admiralty doesn't preserve for appeal a claim that the jury trial was error because of lack of diversity.  Also no showing of harm or constitutional violation.

Challenge to jury finding of lack of negligence and award of damages was forfeited for lack of a post-judgment motion for judgment as a matter of law.  Evidence was sufficient, even under the higher standard of proof.

Court appropriately limited expert testimony.

Marquette Trans v. Navigation Mrtm

Fourth Circuit: US v. Brent Brewbaker

Motion to shift the ground from per se violation to rule of reason was properly construed as a motion to dismiss the indictment, as it would have been an impermissible constructive amendment of the indictment.

Where two parties are alleged to have engaged in bid-rigging, and also relate vertically as supplier and contractor for awarded bids, the alleged conduct isn't an inherently anticompetitive restraint on trade subject to per se analysis.  Precedent requires that the companies be considered in their totality, so the horizontal bid-rigging isn't separable from the supply relationship.

Expert testimony as to the anticompetitive effects of the business practices should not have been excluded when considering a (constructive) motion to dismiss.

By ensuring that their competitor/distributor won the bidding war, the bidder could increase the demand for the supplier's product.

Fraud convictions for submitting a noncompetitive bid were not infected by the Sherman Act instructions reversed here.

US v. Brent Brewbaker 

Eleventh Circuit: USA v. Kendrick Eugene Duldulao, et al.

 Although the conspiracy instruction might have been faulty, a prior panel held that it sufficiently conveyed the mens rea required for culpability, and circuit precedent can't be changed within the circuit absent en banc review. Circuit precedent to contrary was for general offense of conspiracy, rather than specific statute.

Although the other challenged instruction was suggested by the deft at trial (in accordance with longstanding precedent), subsequent changes in the caselaw are an exception to the invited-error doctrine, and sufficient under plain error review.

Sufficient evidence for conviction.  Expert medical testimony on appropriate standard of care, even when dispositive, wasn't plain error.

USA v. Kendrick Eugene Duldulao, et al.

Eighth Circuit: United States v. Aaron Broussard

 

Plain error review, as deft's pro se pretrial motion to exclude was denied with an invitation to object at trial, and later standby counsel didn't object or preserve the claim. Introduction of photographs of victims of mail-order pharmacy wasn't plain error.

United States  v.  Aaron Broussard

Ninth Circuit: USA v. Volodymyr Kvashuk

 Proof that an IP associated with the house was used to access relevant email and crypto-coin sites, combined with affidavit statement that financial and personal records are often kept at the home, was sufficient probable cause for a search of the house in an online fraud investigation.  The fact that the fraudulent transactions were committed before moving there isn't dispositive of whether there was likely to be evidence at the house.

A 15-20 month gap between the thefts and the affidavit didn't make the affidavit claims stale, given the nature of computer memory.

Discrepancy in URL TLD on the warrant affidavit was inconsequential.

Personally issued website development test accounts sufficiently identify their authorized users to be the basis for a charge of aggravated identity theft.

Deft's immigration status wasn't critical to establishing a defense for the use of crypto-coin; court did not abuse its discretion in excluding it.

Juror's work with the same large corporate division was insufficient for a claim of implied bias, since the fact patterns at issue in the trial weren't similar to the events of their employment.

USA v. Volodymyr Kvashuk

First Circuit: Williams v. Kawasaki Motors Corp., U.S.A.

 Although the District Court excluded the expert testimony, a precise reading of the testimony establishes that the plaintiff hasn't met their burden on causation; the question is not if the fractured weld caused the accident, but whether the defect in the weld caused the accident.

Williams v. Kawasaki Motors Corp., U.S.A.

First Circuit: US v. Agramonte-Quezada

 Absent a showing of bad faith or prejudice, discovery delay in producing dog training records and logs did not require the trial judge to grant a continuance, as there were other discovery materials that might have opened the door to a challenging of the canine evidence.

Evidence of a prior canine indication was more probative than prejudicial, since the switching of vehicles in the interval and the deft's awareness of the narcotics traffic spoke to a continuing plan or scheme and rebutted the claim that he had been an unwitting courier.

Law enforcement testimony as to the usual trafficking operation wasn't impermissible overview testimony, as it came at the end of the trial, the witness was insulated from the particular case, and didn't reference any particulars.  Lay testimony of this nature gleaned from on-the-job experience is helpful to the finder of fact, and therefore permissible.

Court did not abuse its discretion in proceeding to sentencing rather than considering competency; the determination had been made earlier,and nothing in the colloquy prior to sentencing indicated sufficient incapacity. 

US v. Agramonte-Quezada

Seventh Circuit: Tyler Kirk v. Clark Equipment Company

 

Concise Daubert analysis is distinct from conclusory Daubert analysis, and therefore is analyzed for abuse of discretion.

Merely establishing the qualifications of the expert is insufficient; the principles and methods used must be analyzed as well.  Expert testimony involving theories that had not been tested on that type of machine were within the discretion of the court to exclude, even given subsequent remedial measures by deft. Expert testimony as to causation legitimately excluded, since the expert was speculating as to the amount of weight that caused the machine to unbalance; there was no requirement to let the question of causation go to the finder of fact, since the court has a gatekeeper function with expert testimony.

Absent expert testimony, the strict liability defective design claim didn't present a genuine issue of material fact for trial, since consumer expectations are insufficient objective proof when it comes to industrial machines.

Tyler Kirk v.  Clark Equipment Company

Sixth Circuit: Brian Lyngaas v. Curaden AG

 

Because evidence establishes a business plan for eventual profitability undercapitalization is not per se proof of being a mere instrumentality of another corporation.

As there is no culpable conduct establishing that the foreign corporation used their control over the domestic corporation to effect a fraud or wrong on the complainant, there is insufficient basis to piece the corporate veil.

Jurisdiction is proper in the district under the FRCP, since the cause of action arises under federal law, the foreign entity is not within the jurisdiction of any other state, and the exercise of jurisdiction is consistent with the US constitution and laws.

Under Fifth Amendment due process, foreign company sufficiently purposefully availed itself of the American market generally by launching the domestic company and retaining a measure of control over it. The marketing faxes at issue sufficiently relate to the purpose of these minimum contacts, even though the foreign company might not be culpable for the sending of the faxes.  Asserting first US jurisdiction over the foreign company is reasonable, since there is a federal interest in the enforcement of the laws, and the plaintiff will not be able to find financial redress from the domestic corporation.

The regulation making culpable under the statute the person whose goods and services are advertised only applies to persons who have some level of knowledge that an unsolicited fax has been sent.

Consistent with agency findings, fax-to-computer transmissions are within the Act, as the receiving machine has the capacity of transcribing the image to paper.

Given proffer of eventual admissibility, the class was correctly certified using unauthenticated telephone logs, as nonexpert evidence may be sufficiently probative at the early stages of the litigation.

As the logs were generated by a machine, they were not hearsay -- hearsay requires the assertion of a person.  Court correctly excluded expert testimony.

List of affected phone numbers reasonably necessitated the claims administration procedure.

In a federal class action, the court need not have personal jurisdiction over the defendant as to each plaintiff.  The question of jurisdiction looks to the relationship between the defendant, the forum, and the litigation -- it does not depend on unnamed class members.  

CONCURRENCE/ DISSENT:

As state courts couldn't resolve the clams of out of state class members, neither can federal courts resolve the claims of those outside its jurisdiction. 

14A Determines the due process limits on federal jurisdiction under the 5A  in federal court.

The statute doesn't apply to faxes received on computers, since, on its own, a computer can't receive messages from a phone line or print the fax on paper; additionally, Congress listed computers as senders, but not receivers.  

Brian Lyngaas v. Curaden AG

Eighth Circuit: United States v. John Fortenberry

 

Statute's description of judgment on the merits looks to actual adjudication of the substantive issues of the claim rather than looking to the procedural rules' definition of judgment on the merits.  A dismissal of a claim against an agent due to a limitations period does not require the dismissal of the claim against the alleged principal under the statute, or under normal principles of vicarious liability.

Abuse of discretion to admit evidence of past bad acts that were time-barred from the suit, as they were more prejudicial than probative.  As it became a theme of the case, limiting instruction was insufficient.

Evidence of retaliation and harassment by non-defendant agents of the municipality was also more prejudicial than probative, as it translated into the theme that the municipality was a bad actor.

Implying that the municipality had indemnified the defendant officers for punitive damages when in fact only compensatory damages were to be covered was an abuse of discretion.

Cumulative evidentiary errors and misleading jury instructions suffice for vacatur and new trial.

United States  v.  John Fortenberry

Eleventh Circuit: PDVSA US Litigation Trust v. Lukoil Pan Americas, LLC, et al

 

Assume without deciding that the District Court erred in holding that the document was not sufficiently authenticated in liminal proceedings because three of the signatures were not authenticated.

Foreign state's law treats champerty as an affirmative defense to formation; since the champerty claim implicated the merits determination, summary judgment standard would likely be appropriate, even in the context of a motion to dismiss.  

Appeal of champerty finding that doesn't mention the procedural posture of the determination below forfeits any challenge to the standard of review.  

Since the litigation trust created by the injured party as both grantor and beneficiary and to which the claim was assigned in an exchange for value would retain a fixed percentage of any recovery, the agreement was void for champerty under the state's law, and the litigation trust therefore did not have sufficient Article III standing.

PDVSA US Litigation Trust v. Lukoil Pan Americas, LLC, et al

Seventh Circuit: USA v. Crystal Lundberg

 

Objection to the disclosure of the deft's past occupation was waived when deft raised it several times during the trial.

Deft affirmatively agreed to the admission of the draft email at trial, waiving any subsequent objection.

Appellant carries burden on plain error review to show why forfeited objection at trial meets the standard for plain error.

Sufficient evidence to establish that deft had the requisite intent to defraud and was an active and knowing participant, since deft knew that the funds were illicit, and continued to spend them.

Alteration of another person's tax forms and pay records in order to secure a lease is sufficient for the sophisticated means sentencing bump.

USA v. Crystal Lundberg

Seventh Circuit: Shawn Patterson v. Matt Baker

 

Treating nurse's opinion on re-cross about whether visible signs of the described prison beating would have been expected was, at worst, harmless error in allowing an expert conclusion; plaintiff had opened the door on cross by asking on redirect if painful injuries could be sustained without leaving a visible sign.

Shawn Patterson v.   Matt Baker

Seventh Circuit: USA v. Rita Law

 

Given the complexity of the investigation and the need to explain it to the jury, it was not an abuse of discretion to admit the hearsay statements given to federal investigators under the "course of the investigation" exception.

Unwitnessed affidavit was properly authenticated by the details in the substance of the affidavit.

Financial threats, psychological threats, and threats to immigration status provided sufficient evidence for conviction under the statute.

The involuntary servitude sentencing factor was correctly added to the transportation charge.  Sufficient fear was created in the commission of the offense to justify the relevant sentencing factor.  Obstruction sentencing factor correctly applied for perjured affidavit. 

Below-guidelines 360 month sentence was reasonable.

USA v. Rita Law

Fifth Circuit: USA v. Fackrell, et al

 

Denial of severance in capital trial of two prisoners was not an abuse of discretion; jury presumably followed court's instructions, the extensive priors of one co-deft were not unduly prejudicial, and the co-deft's co-conspirator's admissions would have been considered anyway in a separate trial as a statement against interest.

Jury not unduly prejudiced by disclosure at trial that one co-deft had murdered another inmate by stomping on his head.

Since both defts were convicted of beating the victim to death, no plain error in finding that, even if one of them only abetted in the actual murder, the mental state would be sufficient for the death penalty.

No abuse of discretion in arguments about future dangerousness discussing other prisoners who had committed prison murders after commutation of death sentence.

No plain error in discussion of commutation of death sentence that might suggest to the jury that the ultimate responsibility for the sentence might be elsewhere.

No abuse of discretion in government's characterization of mitigation evidence as mitigation of the crime rather than penalty-phase considerations, as the government later appropriately characterized the role of mitigation evidence generally, and a curative instruction was given.

No plain error in government statements about doing justice and the deft's intent to kill.

No plain error in introduction of evidence from unmirandized psychotherapist sessions in rebuttal, since deft had placed his mental health in issue by raising past difficulties in mitigation.

No error in the Sixth Amendment deprivation of counsel during the psychotherapist's examination, as the deft did not establish that the interview was to assess future dangerousness.

Common law psychotherapist evidentiary privilege does not exist in the penalty phase of a capital trial; if it did exist, violations here would not be plain error.  Potential circuit split flagged.

No plain error in government's mitigation phase rebuttal witness' straying into discussions of present events.

Exclusion of warden's statement describing victim's conduct that led to the murder was not an abuse of discretion, as the warden was a single deft in a civil suit, and not speaking for the Bureau.

No abuse of discretion in excluding evidence of plea deal in second murder that was introduced as an aggravating factor in the penalty phase.

No plain error in introduction of acquitted conduct in future dangerousness consideration.

No error in categorical analysis of priors as aggravating factors, since the alternate holding of non-statutory aggravators would not have been perceived as less convincing if the statutory factors had been excluded.

Given circuit precedent that Hobbs Act Robbery is a crime of violence, the conviction survives as an aggravator despite the recent Supreme Court holding on the method of identifying crimes of violence by means of a statute's residual clause; nonviolent Hobbs Act Robbery would be Hobbs Act Extortion.

Jury form that requires juror to first determine the existence of a factual situation before deciding that it is mitigating does not offend the statute that says that a finding of the existence of the fact establishes the grounds of mitigation.

Court's instructions on future dangerousness did not improperly marshal the evidence for the government.

Denial of non-unanimity instruction was not an abuse of discretion; refusing to answer a jury deliberations question about non-unanimity was not error.

Conferences allegedly missing from record do not justify reversal; the conferences were neither a hearing or trial nor a judicial proceeding.

Cumulative error unavailable, since no errors were found.

USA v. Fackrell, et al

Eighth Circuit: Azarax, Inc. v. William Syverson

 

Where a past admission against interest can't be rebutted due to a discovery sanction against the speaker, the statement must be taken at face value.

As the validity of the assignment of the interest hinged on the application of foreign law, a motion to consider foreign law in the proceeding was untimely when made at the summary judgement stage.

Azarax, Inc.  v.  William Syverson