No ineffective assistance in not presenting forensic evidence, as omission of gruesome details might have been a sound trial strategy.
Prosecutor's remarks in closing about condition of victim did not unduly prejudice the verdict.
Approved instructions did not prejudicially suggest restrictions on mitigating circumstances.
Admission of victim's parents sentencing recommendations cannot in itself rise to structural error, and was not an error in the aggregate; such muted, one-off pleas do not warrant the writ.
State appellate decision that the jury did not need to find beyond a reasonable doubt that aggravating circumstances outweighed mitigating ones was not contrary to or an unreasonable application of Supreme Court precedent.
https://www.ca10.uscourts.gov/opinions/16/16-6262.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.
Tenth Circuit: Pavatt v. Royal
Amended panel opinion after denial of en banc.
No prejudice from ineffective assistance claim based on admission of victim photos, as objection would have been useless under res judicata -- similar photos previously held admissible in another case.
Aggravating circumstance of victim suffering was imposed using an unconstitutionally broad standard for potential suffering, state habeas to contrary was an unreasonable application of the law.
Dissent:
Ineffective assistance claims generally procedurally barred, as state provided time to raise them
A reasonable finder of fact might have determined that victim suffered, regardless of how broad the potential application of the standard might be.
https://www.ca10.uscourts.gov/opinions/14/14-6117.pdf
No prejudice from ineffective assistance claim based on admission of victim photos, as objection would have been useless under res judicata -- similar photos previously held admissible in another case.
Aggravating circumstance of victim suffering was imposed using an unconstitutionally broad standard for potential suffering, state habeas to contrary was an unreasonable application of the law.
Dissent:
Ineffective assistance claims generally procedurally barred, as state provided time to raise them
A reasonable finder of fact might have determined that victim suffered, regardless of how broad the potential application of the standard might be.
https://www.ca10.uscourts.gov/opinions/14/14-6117.pdf
Ninth Circuit: US v. Sanchez-Gomez
Summary order dismissing action as moot.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/02/13-50561.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/02/13-50561.pdf
Eighth Circuit: Stephen McCormick v. Starion Financial
State judgments did not merge earlier secured claims; the provision for costs and fees in the precipitating liens therefore survived the reduction to the judgment, despite being barred under state law from inclusion in the judgments.
http://media.ca8.uscourts.gov/opndir/18/07/172192P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/172192P.pdf
Eighth Circuit: Edward Hugler v. La Piedad Corporation
Court erred in holding corporation in contempt based on administrative subpoena to the corporation seeking business records of the shareholders, as the corporation had insufficient control over the records.
http://media.ca8.uscourts.gov/opndir/18/07/171845P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171845P.pdf
Eighth Circuit: Alexandra Sims v. State Farm
Erroneous denial of insurance claim does not suffice to establish bad faith under state law; court's holding that bad faith hadn't been established did not preclude that oppressiveness (which is also listed in the disjunctive) was also not found.
No abuse of discretion in refusal to admit evidence of insurer's systematic practices, since they were possibly confusing.
http://media.ca8.uscourts.gov/opndir/18/07/171333P.pdf
No abuse of discretion in refusal to admit evidence of insurer's systematic practices, since they were possibly confusing.
http://media.ca8.uscourts.gov/opndir/18/07/171333P.pdf
Eighth Circuit: NAACP v. Ferguson-Florissan
No per se clear error in using decennial census numbers as opposed to more recent ones.
A racial categorization does not lose minority status under the act upon attaining a bare majority in the district; the intensely local inquiry must take into account past discrimination and disenfranchisement.
Narrowness of win does not disqualify the win as proof against bloc voting.
Racially proportional representation is not per se proof that there is no actionable discrimination under the Act.
http://media.ca8.uscourts.gov/opndir/18/07/164511P.pdf
A racial categorization does not lose minority status under the act upon attaining a bare majority in the district; the intensely local inquiry must take into account past discrimination and disenfranchisement.
Narrowness of win does not disqualify the win as proof against bloc voting.
Racially proportional representation is not per se proof that there is no actionable discrimination under the Act.
http://media.ca8.uscourts.gov/opndir/18/07/164511P.pdf
Eighth Circuit: Gerald Moses v. Dassault Falcon Jet Corp
Firing was a discrete act that started the clock for administrative exhaustion with respect to any claims arising from the firing.
Medical evidence sufficed for dismissal of statutory disability claim.
Unpleasant and rude conduct did not present an issue for trial on a claim of actionable harassment.
Medical evidence precluded ADA reasonable accomodations claim.
Insufficient causation for retaliation claim.
http://media.ca8.uscourts.gov/opndir/18/07/164343P.pdf
Medical evidence sufficed for dismissal of statutory disability claim.
Unpleasant and rude conduct did not present an issue for trial on a claim of actionable harassment.
Medical evidence precluded ADA reasonable accomodations claim.
Insufficient causation for retaliation claim.
http://media.ca8.uscourts.gov/opndir/18/07/164343P.pdf
Seventh Circuit: Destiny Hoffman v. Susan Knoebel
Sheriff's department employees had no affirmative duty to repair systematic infractions of rights in state drug court; as their conduct was simply negligent, they were not liable for the harms under S1983.
Insufficient showing for municipal liability, since there were potentially remediatory policies in place.
Arrests with insufficient authority were an issue of state law that didn't rise to the level of a constitutional violation.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-2750:J:Wood:aut:T:fnOp:N:2180890:S:0
Insufficient showing for municipal liability, since there were potentially remediatory policies in place.
Arrests with insufficient authority were an issue of state law that didn't rise to the level of a constitutional violation.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-2750:J:Wood:aut:T:fnOp:N:2180890:S:0
Seventh Circuit: Anthony Robinson v. Alfred Perales
As plaintiff did not present claim that deft and corporate deft were linked and declined to assert strict liability of one for the other during deliberations, no error in jury finding liability for one and not the other.
Explicit provision for nominal damages did not impermissibly suggest that non-monetary damages were appropriate.
Racial epithet and disparate treatment suffices to present an issue for trial on hostile work environment.
Statement of opposing party wasn't barred as hearsay.
Triable question of retaliation given facts.
Concerted attempts to end the plaintiff's career were sufficient for the verdict.
Court did not abuse its discretion in comparing the discussion of amounts of award in plaintiff's closing with actual award in declining to award fees.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-02/C:16-3390:J:Rovner:aut:T:fnOp:N:2180150:S:0
Explicit provision for nominal damages did not impermissibly suggest that non-monetary damages were appropriate.
Racial epithet and disparate treatment suffices to present an issue for trial on hostile work environment.
Statement of opposing party wasn't barred as hearsay.
Triable question of retaliation given facts.
Concerted attempts to end the plaintiff's career were sufficient for the verdict.
Court did not abuse its discretion in comparing the discussion of amounts of award in plaintiff's closing with actual award in declining to award fees.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-02/C:16-3390:J:Rovner:aut:T:fnOp:N:2180150:S:0
Sixth Circuit: United States v. Dallas Maynard
As the state Assault Under Extreme Emotional Disturbance statute requires the intentional infliction of injury, it is categorically a predicate violent crime.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0130p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0130p-06.pdf
Fourth Circuit: US v. Chavez
No Brady violation in nondisclosure of prosecution witness immigration records, as not prejudicial, and the favorable immigration treatment was sufficiently raised during trial to discredit the testimony.
No Napue violation, as gov't didn't know of the misstatement in advance, and it was corrected on cross.
Scattered prosecutorial misconduct incidental.
No error on not instructing on the lesser included crimes, as a murder was committed, and the defts didn't have to actually physically participate in the murder to be found guilty of it.
Admission of evidence on uncharged murder not dispositive, and arguendo, harmless error.
Claiming lack of foreknowledge not enough to justify severance as an antagonistic defense.
Statute requiring second chair counsel in capital cases requires prompt request for replacement by the deft; court did not abuse its discretion in denying severance and continuance.
Sufficient evidence.
Historical cell site information admitted under the good faith exception.
No Eighth Amendment violation in life sentence for crime committed at 18 without specific findings from jury.
http://www.ca4.uscourts.gov/opinions/164499.P.pdf
No Napue violation, as gov't didn't know of the misstatement in advance, and it was corrected on cross.
Scattered prosecutorial misconduct incidental.
No error on not instructing on the lesser included crimes, as a murder was committed, and the defts didn't have to actually physically participate in the murder to be found guilty of it.
Admission of evidence on uncharged murder not dispositive, and arguendo, harmless error.
Claiming lack of foreknowledge not enough to justify severance as an antagonistic defense.
Statute requiring second chair counsel in capital cases requires prompt request for replacement by the deft; court did not abuse its discretion in denying severance and continuance.
Sufficient evidence.
Historical cell site information admitted under the good faith exception.
No Eighth Amendment violation in life sentence for crime committed at 18 without specific findings from jury.
http://www.ca4.uscourts.gov/opinions/164499.P.pdf
Second Circuit: United States v. Gasperini
No plain error from claimed unconstitutional vagueness of statute (CFAA), as the conduct here was squarely within the core prohibition.
As the statute (SCA) does not provide for the exclusion of evidence as a remedy, no abuse of discretion in allowing evidence from extraterritorial searches.
Mere gov't request to foreign agency is not enough to bring the subsequent extraterritorial search under the protections of the Fourth Amendment.
Internet archive screenshots properly admitted as business records, given testimony by staffers that they were created in the course of business.
http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/doc/17-2479_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/hilite/
As the statute (SCA) does not provide for the exclusion of evidence as a remedy, no abuse of discretion in allowing evidence from extraterritorial searches.
Mere gov't request to foreign agency is not enough to bring the subsequent extraterritorial search under the protections of the Fourth Amendment.
Internet archive screenshots properly admitted as business records, given testimony by staffers that they were created in the course of business.
http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/doc/17-2479_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/hilite/
First Circuit: MAZ Partners LP v. Shear
Under state law, a non-majority shareholder director can be said to hold a controlling interest in the corporation when he or she evinces actual control of the company; control of a class of shares with the power to block corporate actions, the power to appoint directors, and actual control of past transactions are among the indicia of control.
Outside of closely held corporations, shareholder ratification isn't a safe-harbor against a basic fairness inquiry, given the way that the statute is written.
As the intent of the statute is to reverse the common-law presumption of voidability for interested transactions, it does not legitimate shifting the burden to the plaintiff in cases of ratified transactions when the plaintiff is not seeking to void the deal.
Breach of fiduciary duty sounds in equity, so disgorgement is an appropriate remedy; the court did not abuse its discretion in allotting the windfall to the wronged party.
Declining curative instruction as to evidence admitted presents virtually insuperable bar to raising the claim on appeal.
Wilkes Booth given his cue at 16, Polonius pops up at 21.
http://media.ca1.uscourts.gov/pdf.opinions/17-1821P-01A.pdf
Outside of closely held corporations, shareholder ratification isn't a safe-harbor against a basic fairness inquiry, given the way that the statute is written.
As the intent of the statute is to reverse the common-law presumption of voidability for interested transactions, it does not legitimate shifting the burden to the plaintiff in cases of ratified transactions when the plaintiff is not seeking to void the deal.
Breach of fiduciary duty sounds in equity, so disgorgement is an appropriate remedy; the court did not abuse its discretion in allotting the windfall to the wronged party.
Declining curative instruction as to evidence admitted presents virtually insuperable bar to raising the claim on appeal.
Wilkes Booth given his cue at 16, Polonius pops up at 21.
http://media.ca1.uscourts.gov/pdf.opinions/17-1821P-01A.pdf
First Circuit: US v. Acosta-Joaquin
The deft's intent to represent the social security number as his and his conduct in providing the number, although associated with the correct name, sufficed for a fraudulent use of the social security number.
http://media.ca1.uscourts.gov/pdf.opinions/17-1379P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1379P-01A.pdf
Federal Circuit: Adidas v. Nike
Prudential remand to consider non-instituted grounds is appropriate when those grounds were raised in the petition.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1180.Motion_Panel_Order.7-2-2018.1.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1180.Motion_Panel_Order.7-2-2018.1.pdf
DC Circuit: Ashbourne v. Hansberry
As both the earlier administrative proceeding and the earlier Article III proceeding permitted joinder of the EEOC claim to the civil suit, Title VII claim rooted in the same nucleus of facts is barred under res judicata.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A7A90C4B0D21BC8A852582BB0050FB8F/$file/17-5136.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/A7A90C4B0D21BC8A852582BB0050FB8F/$file/17-5136.pdf
DC Circuit: St. Francis Medical Center v. Azar
Regulation prohibiting revisiting of predicate factual determinations beyond three years in agency reopening proceeding does not prohibit revisiting such factual determinations in statutory direct appeals to the Board.
https://www.cadc.uscourts.gov/internet/opinions.nsf/5B15C6CE526BEB92852582BB00512041/$file/17-5098.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/5B15C6CE526BEB92852582BB00512041/$file/17-5098.pdf
DC Circuit: Jennifer Campbell v. DC, et al
Motions during trial claiming that petitioner had suffered insufficient harm under the statutory tort did not preserve a claim that the theory of harm found by the finder of fact was in fact based in the events alleged in the claim rejected by the finder of fact.
Claim rooted in improper dismissal does not have to allege any fixed period of unemployment to state a claim under the statute.
https://www.cadc.uscourts.gov/internet/opinions.nsf/018EBEB666041BD2852582BB005130D4/$file/16-7077.pdf
Claim rooted in improper dismissal does not have to allege any fixed period of unemployment to state a claim under the statute.
https://www.cadc.uscourts.gov/internet/opinions.nsf/018EBEB666041BD2852582BB005130D4/$file/16-7077.pdf
DC Circuit: USA v. Gregory Sitzmann
Consideration of extraterritorial conduct did not violate the presumption against extraterritoriality, given the domestic elements of the conspiracy.
Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.
As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.
No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.
Purportedly false evidence presented insufficiently prejudicial.
Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.
No ineffective assistance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.pdf
Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.
As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.
No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.
Purportedly false evidence presented insufficiently prejudicial.
Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.
No ineffective assistance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.pdf
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