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
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.
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
Eleventh Circuit: David Dwayne Cassady v. Steven D. Hall, et al
Post-judgment motion to District Court seeking garnishment of funds due state inmate from a state employee is construed as a suit for the purposes of the Eleventh Amendment when it makes some claim, demand, or request against the state.
State did not waive immunity by authorizing garnishment for funds due state employees or officials as a result of services performed, and under the Rules Enablement Act, Rule 69 cannot serve as a modification or abridgment of any substantive rights.
http://media.ca11.uscourts.gov/opinions/pub/files/201810667.pdf
State did not waive immunity by authorizing garnishment for funds due state employees or officials as a result of services performed, and under the Rules Enablement Act, Rule 69 cannot serve as a modification or abridgment of any substantive rights.
http://media.ca11.uscourts.gov/opinions/pub/files/201810667.pdf
Federal Circuit: Sunpreme, Inc. v. US
The residual clause of the Trade Court's jurisdictional statute cannot be invoked if there is a practicable alternative basis for jurisdiction elsewhere in the statute; the court therefore did not have jurisdiction to issue an injunction during the pendency of an agency scope determination, the completion of which could then be challenged under the statute.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1338.Opinion.6-14-2018.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1338.Opinion.6-14-2018.pdf
Federal Circuit: Land of Lincoln Mutual Health v. US
No contract-based Takings claim, as there was no contract.
Legislative enactment does not create a property interest cognizable under the Takings Clause.
Dissent: Contract.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1224.Opinion.6-14-2018.pdf
Legislative enactment does not create a property interest cognizable under the Takings Clause.
Dissent: Contract.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1224.Opinion.6-14-2018.pdf
Federal Circuit: Moda Health Plan v. US
Where a statute commits to the government's disbursal of funds from a single program according to a certain formula, subsequent budgetary riders need not place a categorical ban on payment from other sources when limiting the payouts from that program in order to function as a sufficiently clear implied repeal of the initial commitment.
Absent the trappings of a contractual agreement or some sign of intent to enter into a contract, government legislation and subsequent agency rulemaking and conduct does not indicate an intention to enter into a binding contract.
Dissent: Insufficiently clear statement of repeal, explicit attempts at repeal did not pass, insurers had completed their part of the deal, judgment fund is available, contract existed.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1994.Opinion.6-14-2018.pdf
Absent the trappings of a contractual agreement or some sign of intent to enter into a contract, government legislation and subsequent agency rulemaking and conduct does not indicate an intention to enter into a binding contract.
Dissent: Insufficiently clear statement of repeal, explicit attempts at repeal did not pass, insurers had completed their part of the deal, judgment fund is available, contract existed.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1994.Opinion.6-14-2018.pdf
Tenth Circuit: United States v. Driscoll
When determining the timeliness of a Habeas petition, the critical element is the right asserted; the question of whether an ambiguous conviction is or is not contradicted by the new rule is a matter for merits consideration.
As the petitioner was convicted under a statute broader than the generic offense, it is more likely than not that they were convicted under the unconstitutional residual clause, justifying the granting of the writ.
On merits, granted as not harmless error.
https://www.ca10.uscourts.gov/opinions/16/16-8118.pdf
As the petitioner was convicted under a statute broader than the generic offense, it is more likely than not that they were convicted under the unconstitutional residual clause, justifying the granting of the writ.
On merits, granted as not harmless error.
https://www.ca10.uscourts.gov/opinions/16/16-8118.pdf
Seventh Circuit: Thaddeus Jones v. Michelle Qualkinbush
The right to vote on policy questions in a referendum is a creature of state, not federal, law, and the referendum process is not a public forum under the First Amendment, so a state entity might legitimately dominate the process if there is a reasonable basis for it to do so.
A politician disadvantaged by the state's manipulation of the referendum process is a class of one for Equal Protection purposes, and where the conduct is valid as a general matter, the question is not justiciable. (This last bit is clearly implied, but not explicitly stated in those terms.)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-14/C:17-1227:J:Easterbrook:aut:T:fnOp:N:2170958:S:0
A politician disadvantaged by the state's manipulation of the referendum process is a class of one for Equal Protection purposes, and where the conduct is valid as a general matter, the question is not justiciable. (This last bit is clearly implied, but not explicitly stated in those terms.)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-14/C:17-1227:J:Easterbrook:aut:T:fnOp:N:2170958:S:0
Sixth Circuit: Sazerac Brands, LLC v. Peristyle, LLC
Where a company acquires a historic manufacturing site, a plaintiff claiming infringement of the trademarked name must, to state claim, establish that the mark associated with the site was not used merely in a good-faith descriptive or geographical sense.
(Though it says that unfair use is part of the necessary claim, the interlocutory order here affects a partial summary judgment.)
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0113p-06.pdf
(Though it says that unfair use is part of the necessary claim, the interlocutory order here affects a partial summary judgment.)
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0113p-06.pdf
Fifth Circuit: Franchise Svc of North America v. United States Trustee
As shareholder rights under the corporate charter are a matter of state law and the power of a corporation to invoke bankruptcy protection arises from local law, the federal public policy interest in assuring the bankruptcy proceeding does not preclude a shareholder from blocking the bankruptcy filing where that shareholder is also a creditor, so long as there is no evidence of bad faith in the acquisition of the blocking shareholder rights.
Whether the acquisition of such rights under the charter violates state law is not before the court, as the parties don't raise it here.
Simple acquisition of a controlling interest in a stock class is insufficient proof of corporate control for purposes of judging breach of fiduciary duty; blocking the filing is not per se proof of such control.
http://www.ca5.uscourts.gov/opinions/pub/18/18-60093-CV0.pdf
Whether the acquisition of such rights under the charter violates state law is not before the court, as the parties don't raise it here.
Simple acquisition of a controlling interest in a stock class is insufficient proof of corporate control for purposes of judging breach of fiduciary duty; blocking the filing is not per se proof of such control.
http://www.ca5.uscourts.gov/opinions/pub/18/18-60093-CV0.pdf
Fifth Circuit: Gail McClendon v. USA
Regardless of the ultimate burden at trial, a deft's reasonably supported assertion that less than the full amount of taxes due was available for use in the company's accounts presents a genuine issue of material fact for trial.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20174-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-20174-CV0.pdf
Fifth Circuit: USA v. Ronald Ary
Under both state and federal law, a state deferred adjudication for this type of crime qualifies as a valid predicate conviction for sentencing purposes.
An indictment that omits this element of the offense does not offend Due Process, since Apprendi and its progeny specifically except prior convictions.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10082-CR0.pdf
An indictment that omits this element of the offense does not offend Due Process, since Apprendi and its progeny specifically except prior convictions.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10082-CR0.pdf
Third Circuit: USA v. Christopher Welshans
Where deft stipulated to the prohibited content, error to admit prejudicial videos and refer to them in closing, but no Due Process violation given the overwhelming evidence of guilt.
Deft's deletion of files upon learning that the police were on the way was sufficiently contemporaneous with arrest to qualify for the Obstruction sentencing enhancement, but as the files were simply moved to the recycle file, there was no material hindrance.
Concur/Dissent: Actions upon learning of investigation are not sufficiently contemporaneous with arrest.
http://www2.ca3.uscourts.gov/opinarch/164106p.pdf
Deft's deletion of files upon learning that the police were on the way was sufficiently contemporaneous with arrest to qualify for the Obstruction sentencing enhancement, but as the files were simply moved to the recycle file, there was no material hindrance.
Concur/Dissent: Actions upon learning of investigation are not sufficiently contemporaneous with arrest.
http://www2.ca3.uscourts.gov/opinarch/164106p.pdf
Ninth Circuit: Clifford Tindall v. First Solar Inc.
Where FRCP indicates abuse of discretion review, but the dismissal for not stating a claim would usually prompt de novo, circuit precedent compels a three-judge panel to review the claim for abuse of discretion.
Under Delaware law, the Board's role in financial disclosures and press releases is not a business judgment for the purposes of assessing demand futility, since the releases and disclosures are snapshots of past business decisions. The correct test looks to general oversight.
Where a court denies leave to amend in a situation where it is usually granted absent prejudice, but the rule merely permits granting for good cause, there is no need to cite or discuss the rule, so long as there is no abuse of discretion of the good cause standard.
Eighth Circuit: Stuart Wright v. United States of America
Local rules mandate that the reply brief to a motion for summary judgment must be in a certain form, not that it must contest all statements of fact not waived.
Under law of the case, basketball player falsely arrested justified the subsequent restraint on his liberty by briefly backing away from the police; this presents no issue for trial.
As the arrest and detention were justified, no abuse of process.
Arrest and tasing midcourt did not rise to the level of assault, as the officers thought that they were arresting a dangerous person.
http://media.ca8.uscourts.gov/opndir/18/06/172274P.pdf
Under law of the case, basketball player falsely arrested justified the subsequent restraint on his liberty by briefly backing away from the police; this presents no issue for trial.
As the arrest and detention were justified, no abuse of process.
Arrest and tasing midcourt did not rise to the level of assault, as the officers thought that they were arresting a dangerous person.
http://media.ca8.uscourts.gov/opndir/18/06/172274P.pdf
Eighth Circuit: Jonathan Ervin v. Michael Bowersox
State's use of a video at trial showing the invocation of previously waived Miranda rights in the course of an interrogation and references to the video in opening and closing statements were not an unreasonable application of clearly established federal law.
Factual determinations not unreasonable.
http://media.ca8.uscourts.gov/opndir/18/06/171743P.pdf
Factual determinations not unreasonable.
http://media.ca8.uscourts.gov/opndir/18/06/171743P.pdf
Eighth Circuit: United States v. Hosea Swopes
State statute is a valid ACCA predicate.
Per curiam, simple assertion of precedent.
http://media.ca8.uscourts.gov/opndir/18/06/161797P.pdf
Per curiam, simple assertion of precedent.
http://media.ca8.uscourts.gov/opndir/18/06/161797P.pdf
Eighth Circuit: Jim Sciaroni v. Target Corporation
Class appropriately certified despite court's mistaken finding that class members without present injury would be entitled to a pro rata share of the remainder of the fund.
Class appropriately certified despite potential inter-class conflicts over later-arising harms from the data breach, since all class members suffered the same injury at the same time.
29% Fee award can appropriately be based on a total that includes administrative costs; fees not substantively unreasonable.
Settlement not unfair, despite alleged subtle signs of collusion.
http://media.ca8.uscourts.gov/opndir/18/06/153909P.pdf
Class appropriately certified despite potential inter-class conflicts over later-arising harms from the data breach, since all class members suffered the same injury at the same time.
29% Fee award can appropriately be based on a total that includes administrative costs; fees not substantively unreasonable.
Settlement not unfair, despite alleged subtle signs of collusion.
http://media.ca8.uscourts.gov/opndir/18/06/153909P.pdf
Fifth Circuit: Esther White v. Cigna Group Insurance
Abuse of discretion for the Plan Administrator not to mention insurer's medical report asserting that the level of drug intoxication was impossible to determine given the tests run, withhold the report from discovery, and deny the claim.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30356-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-30356-CV0.pdf
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