Vocational expert was present during recitals of sufficient evidence to support their later findings, and the determinations were reached by appropriate hypothetical questions from the ALJ made without contemporaneous objection.
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: United States v. Shawn Thomason
As the writings found in the defendant's car supported the theory of the crime and established a potential future danger to the community, consideration in sentencing was not a violation of the First Amendment.
As the deft requested the change late in the trial, the claim of prosecutorial misconduct due to the use of gender-specific pronouns was waived; alternatively, pronouns are not dispositive. Misgendering is insufficient basis for a claim of judicial bias; no error in denial of motion to recuse.
Plea deal identifying one act as applicable for restitution did not preclude the seeking or award of restitution under an additional act.
Interstate stalking statute does not unconstitutionally co-opt state authorities.
Seventh Circuit: Michael Thomas v. Aline Martija
State law provides the rule of decision on some S1983 substantive legal questions related to the defense raised, so the assertion of the state statutory evidentiary privilege defense, although defeated by the federal rule on the privilege in question, doesn't mean that all substantive defenses have been presently waived.
Lack of notes from a deceased physician and a delay in the referral to a specialist deft present an issue for trial, as they might show either not receiving a prisoner's claim or a deliberate indifference to the claim.
An institution-level medical director within a larger corporation is not a unilateral setter of standards for purposes of Monell liability.
Seventh Circuit: USA v. Korrtel Filzen
Sentence imposed pursuant to a plea agreement that had incorrectly calculated the mandatory fees payable by the deft but in practice imposed the higher fee required by law was insufficient plain error to revisit the sentence, despite the deft's inability to withdraw from the agreement at sentencing.
Seventh Circuit: Ademus Saechao v. Cheryl Eplett
Federal collateral review can look past individual state court opinion to determine if the state judicial proceedings were consistent with the federal standard.
Judge's disqualification of criminal counsel unknowingly appointed to defend another defendant charged for the same occurrence, given deft's refusal to waive conflicts was a reasonable application of the Supreme Court's caselaw requiring a serious risk of conflict. The subsequent appearance of the other defendant on the trial's witness list was independently sufficient, regardless of the probability that the witness would actually be called.
Seventh Circuit: Ralph Holmes v. Salvador Godinez
Consent decree that provides for the award of fees if there has been a violation of the agreement by one party does not require an ongoing violation to trigger the possibility of an award.
Courts order that the state party to the agreement ensures treatment of the incarcerated parties to the agreement within a certain timeframe was not a reasonable inference of the parties' agreement, which called for the incarcerated parties to be referred for treatment within that timeframe.
Fifth Circuit: Jones v. Michaels Stores
Manifest disregard of the law is not a freestanding grounds for vacatur of an arbitration decision under the federal statute.
Third Circuit: HIRA Educational Services Nort v. Frank Augustine
Sufficient jurisdiction to review a denial of legislature members' immunity under the collateral order doctrine, since otherwise the legislators would have to participate in pretrial and discovery matters, and the question is one purely of law.
State legislators' common law federal immunity and immunity from state claims under the state constitution protect actions and speech regardless of subjective discriminatory intent.
Unlike municipal legislators who have both administrative and legislative functions, the actions of a state legislator that are legislative in nature do not have to be proven to be substantively legislative in intent and effect. Correspondence and telephone calls relating to legislation are protected as factfinding.
Qualified immunity for political errands not within the scope of legislative immunity, as there was not any clear teaching of the courts that the allegedly discriminatory campaigning in the community was against the law.
Third Circuit: In re: Energy Future Holdings Corp.
Post-petition missed merger states a subsequent claim by the missed bidder for administrative expenses under the Code, despite the fact that the missed bidder filed multiple post-attempt judicial challenges, forcing the estate initially to pay the agreed penalty for the missed transaction.
Benefit to the estate should be considered broadly, and the missed bidder's due diligence in setting up the deal, clarifying the issues and setting a roadmap for the subsequent lesser bid plausibly conferred sufficient benefit on the estate to justify statutory priority for the administrative expenses claim. Finder of fact will need to determine if this benefit was offset by the costs that were forced by prolonging the missed deal.
Second Circuit: United States of America v. Martinez
Holding a substantive RICO conviction -- in which the underlying offense ple(a)d(ed) to or proven involved as an element the use of force -- to be a crime of violence is, under de facto modified categorical review, not plain error. Prior circuit precedent requiring two of the three underlying offenses to involve the use of force is dicta as to convictions with only one offense involving the use of force.
Sentence was not substantively unreasonable.
Second Circuit: Int’l Techs. Mktg., Inc. v. Verint Sys., Ltd.
When imposing sanctions under the courts inherent powers, the court must first consider not the actual disruptive effect in the proceedings, but the intent of the offending party; a single filing offers sufficient grounds for sanctions.
First Circuit: Cuesta-Rojas v. Garland
Since the only record of the telephone interview was the investigator's notes, although the report of the investigator is entitled to a presumption of regularity, the discrepancies between the conversation as recorded in the notes and the other interviews of the petitioner do not offer sufficient evidence for the agency's determination.
First Circuit: US v. Concepcion
Re-sentencing under the statute is not a plenary re-sentencing is not a plenary review of all intervening changes in the law, but an imposition of a sentence incorporating the specific changes mandated by the statute. The judge is then free to weigh the intervening changes in the law in the subsequent discretionary resentencing. Affording plenary sentencing would unfairly reward those who had been convicted of the predicate offense.
Tenfold, almost equally divided circuit split flagged.
DISSENT:
No need to bifurcate the process; once the court determines the eligibility for resentencing according to the law at the time of the original sentencing, before making the gating decision, the court is then free to consider subsequent legal and factual developments before deciding on whether to grant the motion to revisit the sentence.
Federal Circuit: Akpeneye v. US
The appropriate test in this context for work under the statute is whether there are either substantial duties or a substantial amount of time and effort controlled or required by the employer and primarily for the benefit of the company, rather than whether there is complete relief from duty.
Legal conclusions given in deposition testimony on employment conditions are presumptively not binding on the deponent entity.
While standby duties can rise to the level of actual work, here, since duty posts were covered, breaks could be taken away from public access, and there was a system for compensating employees if both break times during the day were interrupted, the standby duties didn't justify a clam for overtime.
Restriction that the employees had to remain in uniform and on the premises did not cause their breaks to primarily benefit the employer.flsa
Eleventh Circuit: Betty M. Smith, et al v. Michael Bokor
Since citizenship for purposes of the local controversy exception and discretionary exception to the class-action statute is based on current domicile, court clearly erred in using demographic data of past residence in a care facility as sufficient proof of citizenship. Commonsense inference that locals tend to enter nearby homes and that few of those over 65 move out of Florida are insufficient.
Plaintiff satisfied the "significant defendant" standard even absent a showing of means, since the statute requires a party against whom significant relief may be sought, not a party against whom a significant judgment may be recovered.
A corporation liable through vicarious liability can be a primary defendant for purpose of the CAFA discretionary exception.class
Ninth Circuit: Walden v. Shinn
As the state supreme court, in affirming a denial of severance on direct review, held in the alternative that the evidence of the crimes would be cross-admissible, and this ground wan't challenged on grounds of federal law during state post-conviction proceedings, the omission of the challenge from the federal Habeas petition to the District Court waived the claim.
State court determinations that post-identification police disclosures to witnesses at photo lineup that they had arrested the suspect was not contrary to clear federal law on the question.
State court reasonably declined to infer improper suggestion when photo lineup witness identified one candidate, and the police then momentarily turned off the recording device before the witness identified the defendant.
Since the state's highest court conducted an independent review of mitigation, a federal Habeas claim against the state trial court's holding of insufficient nexus needed to identify the constitutional error in the higher court's analysis.
District court properly denied amendment of federal Habeas ineffective assistance claims subsequent to independent exhaustion in state post-conviction review after federal Habeas had commenced, since the claims did not relate to the same transactions and occurrences; no plain error in the denial of equitable tolling.
State court's determination that admission of crime scene photos was not unduly prejudicial was not an unreasonable application of federal law, since contemporaneous circuit precedent held that there was no circumstance in which admission of irrelevant or prejudicial evidence could justify the writ. Offered stipulation was not sufficient, since nothing in the Due Process Clause holds that the government can't introduce relevant evidence on an uncontested point.
Eighth Circuit: United States v. Benjamin Yackel
As both the state crime of aiding and abetting and the federal application of the generic offense require intentionality but contemplate presence as a means of establishing intention, the state statute is a crime of violence under the Guidelines and ACCA.
Eighth Circuit: Metropolitan Omaha Property v. City of Omaha, Nebraska
Municipal ordinance authorizing the inspection of a property and reciting that the inspector may seek a warrant if consent cannot be obtained doesn't violate the Fourth Amendment by authorizing warrantless entry, since under the state's rules of statutory construction, the permissive power to seek a warrant would be exercised prior to any search without consent.
As there is sufficient specificity and adequate provisions for notice and appeal, the enforcement provision is not unconstitutionally vague.
Judicial consent decree explicitly allowed for changes in the municipal code, so the procedures aren't an unlawful amendment of it.
Allegation of discrimination under federal housing law doesn't plead an intensity of discrimination sufficient to state a claim.
Eighth Circuit: United States v. Nkajlo Vangh
As the motion for compassionate release arises from a statute that does not require an evidentiary hearing and is discretionary in nature, there is no possible showing of entitlement to relief that could require an evidentiary hearing on the question.
Court's evaluation of the current level of care accorded the prisoner was sufficient consideration of any extraordinary and compelling justification for release, as described in the statute.
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