Hearsay in parole revocation hearing.
Where the District Court does not explicitly permit hearsay evidence at a parole revocation hearing, the appellate court can conduct a de novo review on the question if the factual record is sufficiently developed.
Where the costs of producing evidence at a parole revocation hearing are unduly burdensome and impractical, no abuse of discretion in admitting parole officer testimony and police reports.
Virginia statute of Malicious Bodily Injury to Law Enforcement Officer is categorically a Grade A/ violent offense.
Dissent - FRCrimP requires specific admission of hearsay as hearsay. Parole officer testimony derived from reading the police reports. Deft's corroborating statements limited to attempting to run away, and being grabbed by police officers, who subsequently ripped his shirt and fell down a flight of stairs. Subsequent alleged fracas unconfirmed.
http://media.ca8.uscourts.gov/opndir/15/12/151246P.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.
Eighth Circuit: Stuart Wright v. Sean Franklin
Bivvens - Taser-aided arrest of the wrong guy during a league basketball game.
Footnote in motion saying that an argument isn't made doesn't operate as waiver - de novo review on the question of whether there was a clearly-established right.
Qualified immunity on the taser shock, as it was not yet clearly established in the Circuit that a person thought to be possibly armed and dangerous should not be tasered if they were nonviolent and not attempting to flee.
Basis for the detention subsequently raised need not have been thought about at the time - objective reasonableness controls.
20 minute detention of wrong person after having determined them to be the wrong person is a minimal intrusion on the liberty interest, and does not justify a Bivvens claim.
http://media.ca8.uscourts.gov/opndir/15/12/143606P.pdf
Footnote in motion saying that an argument isn't made doesn't operate as waiver - de novo review on the question of whether there was a clearly-established right.
Qualified immunity on the taser shock, as it was not yet clearly established in the Circuit that a person thought to be possibly armed and dangerous should not be tasered if they were nonviolent and not attempting to flee.
Basis for the detention subsequently raised need not have been thought about at the time - objective reasonableness controls.
20 minute detention of wrong person after having determined them to be the wrong person is a minimal intrusion on the liberty interest, and does not justify a Bivvens claim.
http://media.ca8.uscourts.gov/opndir/15/12/143606P.pdf
Eighth Circuit: Sintia Rodriguez-Mercado v. Loretta E. Lynch
Immigration.
Adverse findings of credibility as to specific events not overwhelmed by establishment of general situation of country of origin.
Voluntary departure not preserved on appeal. Agency could still do it, though.
http://media.ca8.uscourts.gov/opndir/15/12/143559P.pdf
Adverse findings of credibility as to specific events not overwhelmed by establishment of general situation of country of origin.
Voluntary departure not preserved on appeal. Agency could still do it, though.
http://media.ca8.uscourts.gov/opndir/15/12/143559P.pdf
Seventh Circuit: Julia Egan v. David Pineda
Posner - Civil Practice / Ethics
Six month delay in withdrawing an element of a complaint repudiated by plaintiff in deposition justified 5K sanction to counsel.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-2011:J:Posner:aut:T:fnOp:N:1676944:S:0
Six month delay in withdrawing an element of a complaint repudiated by plaintiff in deposition justified 5K sanction to counsel.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-2011:J:Posner:aut:T:fnOp:N:1676944:S:0
Seventh Circuit: Roy Mitchell v. Edward Wall
Posner - Mootness & Vacatur.
A party waives the right to vacatur of a lower court's denial of a preliminary injunction by not requesting it upon appeal in a case that has become moot. Circuit practice is not to typically vacate lower court holding in this situation. Although the decision below was adverse to petitioner, it was not preclusive as to the issuance of a permanent injunction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1881:J:Posner:aut:T:fnOp:N:1676912:S:0
A party waives the right to vacatur of a lower court's denial of a preliminary injunction by not requesting it upon appeal in a case that has become moot. Circuit practice is not to typically vacate lower court holding in this situation. Although the decision below was adverse to petitioner, it was not preclusive as to the issuance of a permanent injunction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1881:J:Posner:aut:T:fnOp:N:1676912:S:0
Seventh Circuit: USA v. Bryce Woods
Posner - Sentencing.
Mitigation claim that the deft had engaged in subsequent legitimate business consulting borders on the frivolous, and need not have been specifically addressed in sentencing findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1495:J:Posner:aut:T:fnOp:N:1676922:S:0
Mitigation claim that the deft had engaged in subsequent legitimate business consulting borders on the frivolous, and need not have been specifically addressed in sentencing findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1495:J:Posner:aut:T:fnOp:N:1676922:S:0
Seventh Circuit: Dianne Khan v. USA
Posner - FTCA SOL.
A letter to a federal agency complaining about an action of the agency is not sufficient notice of claim under FTCA if there is no demand for compensation.
In assessing the window of opportunity for filing a tort claim against the federal government, the tort-specific limitations displace the general civil suit limitations.
Bivvens time-barred under incorporated state law.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:14-3292:J:Posner:aut:T:fnOp:N:1676899:S:0
A letter to a federal agency complaining about an action of the agency is not sufficient notice of claim under FTCA if there is no demand for compensation.
In assessing the window of opportunity for filing a tort claim against the federal government, the tort-specific limitations displace the general civil suit limitations.
Bivvens time-barred under incorporated state law.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:14-3292:J:Posner:aut:T:fnOp:N:1676899:S:0
Sixth Circuit: Samantha Bachynski v. Anthony Stewart
Habeas - Miranda.
After post-Miranda invocation of right to counsel, neither the return of detectives to the cell with a phone book and a cell phone nor subsequent re-Mirandizing constitutes interrogation or badgering.
A lower court's citation of a case that rebuts a deft's claim of law based on an asserted factual circumstance does not operate as a finding of that factual circumstance.
Deft's allegations of minatory statements made by the detectives on their return insufficient to violate clearly established constitutional law on Miranda warnings.
Also harmless error, given the other evidence.
http://www.ca6.uscourts.gov/opinions.pdf/15a0300p-06.pdf
After post-Miranda invocation of right to counsel, neither the return of detectives to the cell with a phone book and a cell phone nor subsequent re-Mirandizing constitutes interrogation or badgering.
A lower court's citation of a case that rebuts a deft's claim of law based on an asserted factual circumstance does not operate as a finding of that factual circumstance.
Deft's allegations of minatory statements made by the detectives on their return insufficient to violate clearly established constitutional law on Miranda warnings.
Also harmless error, given the other evidence.
http://www.ca6.uscourts.gov/opinions.pdf/15a0300p-06.pdf
Sixth Circuit: Brian Bauman v. Bank of America
FDCPA.
A counterclaim for the debt is not a compulsory counterclaim in a FDCPA action based on a lender's previous illegal conduct in foreclosure actions.
http://www.ca6.uscourts.gov/opinions.pdf/15a0299p-06.pdf
A counterclaim for the debt is not a compulsory counterclaim in a FDCPA action based on a lender's previous illegal conduct in foreclosure actions.
http://www.ca6.uscourts.gov/opinions.pdf/15a0299p-06.pdf
Sixth Circuit: USA v. Vishnu Meda
Hearsay, Conspiracy, Sentencing.
No Double Jeopardy, as although the offenses were of the same nature and occurred at the same place, the players and the overt acts differed.
No prosecutorial vindictiveness, as there was no evidence in the record of malice, and the indictment was returned.
Although trial court did not explicitly find the person in question to be a co-conspirator, a preponderance of evidence to that effect allows the testimony to survive plain error review under the co-conspirator exception to the hearsay rule.
Testimony by deft's husband offered to prove state of mind of deft during a business meeting properly excluded under hearsay, as it worked to impeach earlier testimony as to the content of the meeting.
Prosecutors' sidebar followed by court's in camera hearing and warning to witness on self-incrimination was not witness intimidation by prosc.
No error in denial of grant of immunity to defense witness, as there was no showing as to likely effect on the case.
No error in court's refusal to order the witness to invoke 5A on stand, or bar prosecution cross.
Sentencing - once a factor is proven at trial, burden shifts to deft to specifically rebut - a general indictment of the testimony doesn't suffice.
No error in sentencing bump for leadership, as deft was part owner and sole signatory of fraudulent organization.
http://www.ca6.uscourts.gov/opinions.pdf/15a0298p-06.pdf
No Double Jeopardy, as although the offenses were of the same nature and occurred at the same place, the players and the overt acts differed.
No prosecutorial vindictiveness, as there was no evidence in the record of malice, and the indictment was returned.
Although trial court did not explicitly find the person in question to be a co-conspirator, a preponderance of evidence to that effect allows the testimony to survive plain error review under the co-conspirator exception to the hearsay rule.
Testimony by deft's husband offered to prove state of mind of deft during a business meeting properly excluded under hearsay, as it worked to impeach earlier testimony as to the content of the meeting.
Prosecutors' sidebar followed by court's in camera hearing and warning to witness on self-incrimination was not witness intimidation by prosc.
No error in denial of grant of immunity to defense witness, as there was no showing as to likely effect on the case.
No error in court's refusal to order the witness to invoke 5A on stand, or bar prosecution cross.
Sentencing - once a factor is proven at trial, burden shifts to deft to specifically rebut - a general indictment of the testimony doesn't suffice.
No error in sentencing bump for leadership, as deft was part owner and sole signatory of fraudulent organization.
http://www.ca6.uscourts.gov/opinions.pdf/15a0298p-06.pdf
DC Circuit: Food & Water Watch, Inc. v. Thomas Vilsack
Food safety. Article III Standing generally, and for the purposes of an injunction.
Lower court held that there wasn't substantial likelihood of standing for purposes of the injunction, but dismissed the case, so the general threshold of Article III standing governs the appeal. [Apparently, this is a lower threshold.]
Individuals and individual members of associations don't have a concrete and particularized injury, because an increased likelihood of unwholesome poultry carcasses in general has not been established.
The fact that the food safety advocacy would have to step up its advocacy is not an injury in fact for the purposes of organizational standing.
Omission of procedural right insufficient injury.
Concurrence in J - Individuals could simply avoid chickens from the plants in question; organizational injury limited to issue advocacy costs.
Concurrence - Organizational standing and individual standing have grown too disparate.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0F9AADF33503A72F85257F230057317B/$file/15-5037-1589972.pdf
Lower court held that there wasn't substantial likelihood of standing for purposes of the injunction, but dismissed the case, so the general threshold of Article III standing governs the appeal. [Apparently, this is a lower threshold.]
Individuals and individual members of associations don't have a concrete and particularized injury, because an increased likelihood of unwholesome poultry carcasses in general has not been established.
The fact that the food safety advocacy would have to step up its advocacy is not an injury in fact for the purposes of organizational standing.
Omission of procedural right insufficient injury.
Concurrence in J - Individuals could simply avoid chickens from the plants in question; organizational injury limited to issue advocacy costs.
Concurrence - Organizational standing and individual standing have grown too disparate.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0F9AADF33503A72F85257F230057317B/$file/15-5037-1589972.pdf
DC Circuit: Friends of Animals v. Dan Ashe
Endangered Species - Administrative Law
Not only was suit requiring final action on a species untimely because it was filed more than 60 days after the notice of claim, but there was no basis for a final determination suit, as only an initial determination can trigger the need for a final determination, and that's another lawsuit entirely.
https://www.cadc.uscourts.gov/internet/opinions.nsf/18ECBD126C42112385257F230057312D/$file/14-5172-1589984.pdf
Not only was suit requiring final action on a species untimely because it was filed more than 60 days after the notice of claim, but there was no basis for a final determination suit, as only an initial determination can trigger the need for a final determination, and that's another lawsuit entirely.
https://www.cadc.uscourts.gov/internet/opinions.nsf/18ECBD126C42112385257F230057312D/$file/14-5172-1589984.pdf
DC Circuit: Anteneh Abtew v. DHS
Immigration/ FOIA
Asylum petitioner's FOIA request for agency's internal report of merits of claim properly upheld under deliberative process exception.
Agency not estopped from denying claim by providing data in other similar situations.
Judicial processes exist that would allow petitioner to access the documents.
https://www.cadc.uscourts.gov/internet/opinions.nsf/400CFDA022B7BEE985257F2300573100/$file/14-5169-1589960.pdf
Asylum petitioner's FOIA request for agency's internal report of merits of claim properly upheld under deliberative process exception.
Agency not estopped from denying claim by providing data in other similar situations.
Judicial processes exist that would allow petitioner to access the documents.
https://www.cadc.uscourts.gov/internet/opinions.nsf/400CFDA022B7BEE985257F2300573100/$file/14-5169-1589960.pdf
DC Circuit: TransCanada Power Marketing v. FERC
Administrative Law - Utilities.
Utility challenge to tentative rulemaking on allocation of generation costs not arbitrary/capricious, as (1) tentative nature of rulemaking makes it not ripe for review, although jurisdictional statute does not require a final order and (2) although agency did not use the traditional language of "just and reasonable," the decision was in accord with precedent.
Commission adjudication allowing acceptance of bid without granular data of profit/markup was insufficiently reasoned, however -- remanded to commission.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0F9AADF33503A72F85257F230057317B/$file/15-5037-1589972.pdf
Utility challenge to tentative rulemaking on allocation of generation costs not arbitrary/capricious, as (1) tentative nature of rulemaking makes it not ripe for review, although jurisdictional statute does not require a final order and (2) although agency did not use the traditional language of "just and reasonable," the decision was in accord with precedent.
Commission adjudication allowing acceptance of bid without granular data of profit/markup was insufficiently reasoned, however -- remanded to commission.
https://www.cadc.uscourts.gov/internet/opinions.nsf/0F9AADF33503A72F85257F230057317B/$file/15-5037-1589972.pdf
Ninth Circuit: Francisco Garcia v. David Long (12/21)
AEDPA - Interrogations/Miranda.
State court holding that deft's post-Miranda response "no" to question "do you want to talk to us" was equivocal because of context hits the AEDPA trifecta - contrary to, and an unreasonable application of Supreme Court precedent and an unreasonable determination of the facts.
Centrality of admissions at trial establish error as not harmless.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/21/13-57071.pdf
State court holding that deft's post-Miranda response "no" to question "do you want to talk to us" was equivocal because of context hits the AEDPA trifecta - contrary to, and an unreasonable application of Supreme Court precedent and an unreasonable determination of the facts.
Centrality of admissions at trial establish error as not harmless.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/21/13-57071.pdf
Ninth Circuit -- Sunny Viloria v. Loretta E. Lynch (12/21)
No general federal jurisdiction to review an immigration claim absent a final order of removal.
Vacating IJ's order barring removal does not give jurisdiction under the removal statute.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/21/11-73725.pdf
Vacating IJ's order barring removal does not give jurisdiction under the removal statute.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/21/11-73725.pdf
Eighth Circuit: Harris News Agency, Inc. v. William L. Bowers
Guns.
Error in denial of corporation's application for license to sell guns where the officers of the organization knew that a family member, convicted of a felony, was working as a gunsmith in a prior incarnation of the shop. Statute requires a willful violation.
http://media.ca8.uscourts.gov/opndir/15/12/151090P.pdf
Error in denial of corporation's application for license to sell guns where the officers of the organization knew that a family member, convicted of a felony, was working as a gunsmith in a prior incarnation of the shop. Statute requires a willful violation.
http://media.ca8.uscourts.gov/opndir/15/12/151090P.pdf
Seventh Circuit: Alliance for Water Efficiency v. James Fryer
Magistrate hearing original suit did not have federal jurisdiction, but parties consented to settlement. Magistrate's subsequent order enforcing settlement went beyond terms of the deal, and is vacated.
Red herrings: First Amendment, prior restraint, Contract law, copyright law, diversity jurisdiction, consent to suit, access to public records.
(Easterbrook)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-22/C:15-1206:J:Easterbrook:aut:T:fnOp:N:1676130:S:0
Red herrings: First Amendment, prior restraint, Contract law, copyright law, diversity jurisdiction, consent to suit, access to public records.
(Easterbrook)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-22/C:15-1206:J:Easterbrook:aut:T:fnOp:N:1676130:S:0
Sixth Circuit: Marlon Scarber v. Carmen Palmer
AEDPA tolling.
AEDPA clock tolled by postconviction motion to dismiss for lack of jurisdiction construed as postconviction application of r relief resumed upon entry of final judgment by state supreme court, as opposed to the end of the period for appealing that decision. Circuit split flagged.
http://www.ca6.uscourts.gov/opinions.pdf/15a0297p-06.pdf
AEDPA clock tolled by postconviction motion to dismiss for lack of jurisdiction construed as postconviction application of r relief resumed upon entry of final judgment by state supreme court, as opposed to the end of the period for appealing that decision. Circuit split flagged.
http://www.ca6.uscourts.gov/opinions.pdf/15a0297p-06.pdf
Fourth Circuit - US v. Camden Barlow (12/21)
ACCA predicates.
North Carolina "Speeding to Elude Arrest" formerly qualified for residual clause; post-Johnson, remanded for resentencing.
North Carolina supervised-release is considered part of the sentence, so the nine-month supervision period counts when calculating the one-year imprisonment threshold for predicates as felonies under the ACCA.
http://www.ca4.uscourts.gov/Opinions/Published/154114.P.pdf
North Carolina "Speeding to Elude Arrest" formerly qualified for residual clause; post-Johnson, remanded for resentencing.
North Carolina supervised-release is considered part of the sentence, so the nine-month supervision period counts when calculating the one-year imprisonment threshold for predicates as felonies under the ACCA.
http://www.ca4.uscourts.gov/Opinions/Published/154114.P.pdf
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