As the arrest warrant for the owner of the car would have justified the stop if there had been a reasonable probability that she was in the car, police officer's initial statement that one passenger's gender was not clear suffices; later testimony that the officer believed all the passengers to be men is not sufficient contradiction to discount the narrative.
Sentencing court's taciturnity as to mental health factors did not rise to the level of procedural error.
Upward variance for criminal history was not an abuse of discretion.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0204p-06.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.
Fifth Circuit: Angela Roberson-King v. State of LA Workforce Cmsn
State law claim must be brought under the law granting the specific cause of action, as opposed to the more procedurally lenient general tort recovery statute.
Discrimination claim under the federal statute does not present an issue for trial when the candidate who actually got the promotion and the plaintiff are equally qualified; the business judgment of the employer is a sufficiently non-pretextual race-neutral justification.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30899-CV0.pdf
Discrimination claim under the federal statute does not present an issue for trial when the candidate who actually got the promotion and the plaintiff are equally qualified; the business judgment of the employer is a sufficiently non-pretextual race-neutral justification.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30899-CV0.pdf
First Circuit: US v. Russell
Where a juror omits information on a written questionnaire, and that information presents a valid basis for challenge for cause, waiver is not presumed when counsel do not question the unfinished written reply at voir dire; the juror misconduct is structural error when it results in the vote of a single potentially biased juror.
Juror's lack of disclosure of de minimis contact with witness whose credibility was not at issue was sufficiently investigated by a single consultation with witness; the juror did not have to be recalled.
Drug quantities appropriately established by amounts of fertilizer purchases.
Potential juror's dozing off was sufficient neutral reason to avoid Batson challenge.
Preemptively testifying to prior convictions on direct waives appeal against admission of the convictions.
Potentially improper statements in prosecution's closing were isolated and minor comments in a much larger web of evidence.
http://media.ca1.uscourts.gov/pdf.opinions/16-2386P-01A.pdf
Juror's lack of disclosure of de minimis contact with witness whose credibility was not at issue was sufficiently investigated by a single consultation with witness; the juror did not have to be recalled.
Drug quantities appropriately established by amounts of fertilizer purchases.
Potential juror's dozing off was sufficient neutral reason to avoid Batson challenge.
Preemptively testifying to prior convictions on direct waives appeal against admission of the convictions.
Potentially improper statements in prosecution's closing were isolated and minor comments in a much larger web of evidence.
http://media.ca1.uscourts.gov/pdf.opinions/16-2386P-01A.pdf
First Circuit: US v. Garcia-Ortiz
As there is no realistically probable scenario in which Hobbs Act robbery could be accomplished without the use or threatened use of force, the offense is a valid predicate.
Harmless error on not revisiting sentence after revision to guidelines during pendency of appeal; original sentencing court understood its discretion to have terms run concurrently or in sequence.
http://media.ca1.uscourts.gov/pdf.opinions/16-1405P-01A.pdf
Harmless error on not revisiting sentence after revision to guidelines during pendency of appeal; original sentencing court understood its discretion to have terms run concurrently or in sequence.
http://media.ca1.uscourts.gov/pdf.opinions/16-1405P-01A.pdf
The rest of the story
Today's other precedential opinions. (NB 3rd's website a bit flaky today on the chromebook)
http://www.ca5.uscourts.gov/opinions/pub/17/17-40796-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/16/16-60515-CV0.pdf
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:18-1060:J:Manion:aut:T:fnOp:N:2218850:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3216:J:Manion:aut:T:fnOp:N:2218849:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3080:J:Hamilton:aut:T:fnOp:N:2218677:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3080:J:Easterbrook:dis:T:fnOp:N:2218677:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-1631:J:Rovner:aut:T:fnOp:N:2218685:S:0
http://media.ca8.uscourts.gov/opndir/18/09/171135P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/171677P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172231P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172232P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172399P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/15-71666.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-15303.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-35742.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-35753.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-50413.pdf
-CB
http://www.ca5.uscourts.gov/opinions/pub/17/17-40796-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/16/16-60515-CV0.pdf
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:18-1060:J:Manion:aut:T:fnOp:N:2218850:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3216:J:Manion:aut:T:fnOp:N:2218849:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3080:J:Hamilton:aut:T:fnOp:N:2218677:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3080:J:Easterbrook:dis:T:fnOp:N:2218677:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-1631:J:Rovner:aut:T:fnOp:N:2218685:S:0
http://media.ca8.uscourts.gov/opndir/18/09/171135P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/171677P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172231P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172232P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172399P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/15-71666.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-15303.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-35742.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-35753.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-50413.pdf
-CB
Fifth Circuit: USA v. Christopher Vialva
A broad-based challenge to the integrity of the proceedings due to the incapacity of the judge is properly construed as a successive habeas filing rather than a motion to revisit the verdict, as the challenge doesn't arise from a cognizable procedural flaw in the earlier state trial, direct appeal or collateral proceedings. Where the impacts of the alleged incapacity have already been litigated, permission to file for te writ is appropriately denied.
http://www.ca5.uscourts.gov/opinions/pub/18/18-70008-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/18/18-70008-CV0.pdf
Second Circuit: Cappetta v. Comm’r of Soc. Sec. Admin.
Deference to agency determination that reporting work activity is material; although the consideration is not dispositive of a benefits fraud claim, it does speak to some elements of the determination.
Agency retained the power to reverse the ALJ's finding.
Although the law only penalizes omissions, agency could charge benefits recipient with non-reporting on a monthly basis, since the statute also bars withholding required disclosures.
etc, etc...
http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/3/doc/16-3540_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/3/hilite/
Agency retained the power to reverse the ALJ's finding.
Although the law only penalizes omissions, agency could charge benefits recipient with non-reporting on a monthly basis, since the statute also bars withholding required disclosures.
etc, etc...
http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/3/doc/16-3540_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/3/hilite/
Second Circuit: United States v. Spoor
The obscene nature of a film is objectively determined by the film's content; the intention of the creator is considered only as an element of the analysis.
No constructive amendment in shifting dates in facts alleged.
Past bad acts appropriately admitted, as the court was careful to remove the more inflammatory bits.
Within-guidelines 360 month sentence substantively reasonable.
http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/2/doc/16-2972_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/2/hilite/
No constructive amendment in shifting dates in facts alleged.
Past bad acts appropriately admitted, as the court was careful to remove the more inflammatory bits.
Within-guidelines 360 month sentence substantively reasonable.
http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/2/doc/16-2972_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/2/hilite/
Second Circuit: In re: DeRogatis
Administrator's denial of full survivorship benefits was congruent with plan and statute, but the misstatements by plan employees, when speaking on behalf of the administrator, are subject to a fiduciary duty to the recipients, and the finder of fact may determine that an equitable remedy is in order.
http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/1/doc/16-977_16-3549_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/1/doc/16-977_16-3549_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/1/hilite/
First Circuit: US v. Brake
Although the two sentencing bumps both arise from the possession of the stolen weapon during the crime, one refers to the theft of the weapon, and one refers to the probable use of the weapon. Absent legislative guidance against double-counting, both may be applied.
http://media.ca1.uscourts.gov/pdf.opinions/17-1978P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1978P-01A.pdf
First Circuit: Bonilla-Ramirez v. MVM, Inc.
In establishing similarly-situated comparators for a disparate treatment claim based in misbehavior, the misbehavior of the comparators must be proved.
Retribution claim must be proven beyond proximity in time.
http://media.ca1.uscourts.gov/pdf.opinions/17-1512P-01A.pdf
Retribution claim must be proven beyond proximity in time.
http://media.ca1.uscourts.gov/pdf.opinions/17-1512P-01A.pdf
First Circuit: Nat'l Fed'n of the Blind v. Container Store, Inc.
Blind in-store customers cannot be charged with actual or constructive notice of arbitration provision in retail loyalty club agreement shown on computer display at time of enrollment; the agreement, as it happens, was also illusory, as the store retained untramelled powers to modify the agreement.
http://media.ca1.uscourts.gov/pdf.opinions/16-2112P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/16-2112P-01A.pdf
First Circuit: US v. Cruz-Rivera
Statute is a valid predicate crime of violence under use of force clause -- by analogy, since, although it can be accomplished by simple intimidation, bank robbery can also be accomplished by intimidation, and bank robbery is a valid predicate.
As-applied and facial challenge to commerce clause of statute (ACCA?) rejected, as as-applied was conceded in stipulation, and facial because of the theory of the challenge - the crime, not the gun, needs to track to interstate commerce.
Sufficient evidence.
No need for the gov't to produce the weapon at trial.
http://media.ca1.uscourts.gov/pdf.opinions/16-1321P-01A.pdf
As-applied and facial challenge to commerce clause of statute (ACCA?) rejected, as as-applied was conceded in stipulation, and facial because of the theory of the challenge - the crime, not the gun, needs to track to interstate commerce.
Sufficient evidence.
No need for the gov't to produce the weapon at trial.
http://media.ca1.uscourts.gov/pdf.opinions/16-1321P-01A.pdf
Seventh Circuit: Electric Power Supply Associat v. Anthony Star
State nuclear power subsidy mechanism that requires emitting producers to purchase credits from nuclear producers at a price set by the market with a safety valve provision directly tied to the federal utility power auction mechanism is not preempted by the federal stature setting up the auction, since the state scheme doesn't price participants and non-participants in the federal auctions differently, and states have a right to regulate the utilities within their borders.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:17-2433:J:Easterbrook:aut:T:fnOp:N:2218059:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:17-2433:J:Easterbrook:aut:T:fnOp:N:2218059:S:0
Seventh Circuit: International Assoc. of Machin v. Ray Allen
Given controlling precedent of summary affirmation in an earlier case by the U.S. Supreme Court, state law requiring employers to process labor union dues check-off cancellation requests within 30 days is preempted as regulation of private conduct within the scope of labor-management relations and the Taft-Hartley Act.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:17-1178:J:Manion:dis:T:fnOp:N:2217949:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:17-1178:J:Manion:dis:T:fnOp:N:2217949:S:0
Seventh Circuit: Illinois Liberty PAC v. Lisa Madigan
State campaign finance law that seems facially underinclusive given stated aims is nonetheless lawful, given presumption of statute's legitimacy. Court did not abuse its discretion in holding that legislative caucuses were the functional equivalents of political parties for purposes of the law.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:16-3585:J:Sykes:aut:T:fnOp:N:2217703:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:16-3585:J:Sykes:aut:T:fnOp:N:2217703:S:0
Fifth Circuit: Chris Gilkers v. Darrel Vannoy, Warden
When, in the pendency of collateral post-conviction challenges, a state habeas that was subsequently challenged in federal habeas is re-reviewed by the state sua sponte, an attempt to resuscitate the federal habeas claim by a 60(d) motion is properly construed as a second-or-sucessive habeas petition, and is subject to those statutory limits.
http://www.ca5.uscourts.gov/opinions/pub/16/16-30279-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/16/16-30279-CV0.pdf
Fifth Circuit: Constance Westfall v. Jose Luna, et al
Aggressive nature of the knock-and-talk encounter can taint the subsequent consent to search. When the person who gave consent to the search indicates that she doesn't want the police officers to go into a certain area, consent for that part of the search is withdrawn. In these circumstances, the qualified immunity of the police officer presents an issue for trial.
List of today's opinions what we haven't got to yet
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:16-3585:J:Sykes:aut:T:fnOp:N:2217703:S:0
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/17-30011.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/16-35738.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/16-17130.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/15-56990.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/10-50219.pdf
https://www.ca10.uscourts.gov/opinions/17/17-7033.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201711941.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201712562.pdf
http://www.cafc.uscourts.gov/sites/default/files/Palantir_17-1465.Opinion.9-13-18.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2012.Opinion.9-13-2018.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2256.Opinion.9-13-2018.pdf
-CB
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