At 11: "The sockdolager here..."
Deft can't be denied the safe harbor of the sentencing reduction for lack of participation by mere evidence of accompanying others on supply trips; mere presence at prohibited transactions is insufficient.
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.
First Circuit: US v. Carrasquillo-Sanchez
Contemporaneous objection to the length of the sentence imposed preserves only a claim of substantive error, not one of procedural error.
Plain procedural error in sentencing for the court to base an upward variance upon the conditions in the city of the offense without associating the particular circumstances of the deft within this context.
First Circuit: US v. Garcia-Perez
Court adequately recited mitigations, but did not sufficiently explain its upward variance. As the relevant conduct is explicitly included in the guidelines calculation, court needed to specifically distinguish the deft's situation.
Court did not abuse its discretion by imposing a substantively unreasonable sentence -- the deft has the burden to establish that the comparators who received disparate sentences were sufficiently similar.
Almost made it back to DC
Three in the DC Circuit from Friday, but too much multitasking today. Perhaps tomorrow. Cheers.
CB
Eleventh Circuit: Ridgewood Health Care Center, Inc., et al v. National Labor Relations Board, et al
Board's decision that the rehiring interviews by the allegedly successor organization were unduly coercive was insufficiently reasoned, as the legal standard wasn't identified and the relevant factors weren't reviewed. Where both the Board and the ALJ issue unsupported decisions, but the facts are apparent in the record, the issues can be addressed on appellate review. As the questions were answered truthfully, there was no systematic attempt to inquire as to union membership, and no interviewee suggested coercion, the second employer did not unduly coerce during rehiring.
Second employer's statement that they might have to close the facility if it were to become unionized wasn't in itself a threat, and it was insufficient to demonstrate animus relevant to the refussal to hire members of the union. (The statement was also too attenuated in time and after the fact.)
Anumus of a lower-level supervisor can't be attributed to the decisionmakers who declined to hire the union members.
Absent the discriminatory hiring claim, the second business wan't a successor organization, as a moajority of its employees were not former employees of the first business.
https://media.ca11.uscourts.gov/opinions/pub/files/201911615.pdf
Tenth Circuit: United States v. Rollins
Motion to amend the judgment mailed prior to the formal entry of judgment, and that challenged the judgment under rule 59(e) tolled the time for appeal, making the appeal filing here timely.
In considering whether a pleading states a claim of conspiracy under S1983, only the content of the amended complaint should be considered.
Notice sent to the town's mayor wasn't sufficient according to the terms of the state notice act; actual notice is insufficient under the act.
Requesting default judgment from the appellate court is insufficient to challenge a denial of default judgment below.
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110560714.pdf
Tenth Circuit: Hooks v. Yandell, et al.
Sufficient evidence for agency's determination that expert affidavit describing changed country conditions did not adequately set out a basis for the threat to a child of an ethically and religiously diverse family -- the affidavit seperately described the threat faced by each group, but not the threat to the child of such a family.
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110560738.pdf
Tenth Circuit: Jackson v. Warden, USP-Leavenworth
Statutory Habeas is unavailable where an intial challenge to the conviction was made in the court of conviction according to statute, but there was a subsequent change in the law regarding the predicate offense that cannot be relitigated under AEDPA, since it would be second or successive. The inital collateral challenge was adequate and effective.
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110561337.pdf
Ninth Circuit: Willian Rauda v. David Jennings
Statute proibits Article III challenges to the removal of a foreign citizen even where that removal happens in advance of statutorily guaranteed motion to reopen the case, since that remedy can be pursued abroad; this is true even where there is a showing of risk to the petitioner from removal.
Habeas jurisdiciton is similarly foreclosed, as petitioner is not seeking relief from executive detention, and as an alien in the process of being removed, has no proceedural rights other than those guaranteed by statute.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/21-16062.pdf
Ninth Circuit: USA V. Steven Bachmeier
Finder of fact could rationally have decided that a request for a case to be assigned to another judge, and that contained a threat against that first judge was in fact addressed to the first judge even though the note was addressed to the courthouse.
Although the jury instruction didn't adequately convey the element of subjective intent to threaten, the error was harmless, since the deft's only argument against subjective intent was that the note had not been addressed to the judge, and the note, read plainly, was a true threat.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/20-30019.pdf
Ninth Circuit: Dennis Munden v. Stewart Title Guaranty Co.
Since the roadmaps were created under a state statute and designed, at least in part, to give owners in property notice of extant interests in their property, the road map is a public record for the purposes of the title insurance contract, and the insurers had a duty to defend the landowner against the otherwise unrecorded state road easement and right of way.
Policy exclusion for claims arising from public interests in roads applies to bar the claim, since the state is asserting such an interest, and the policy owner is opposing it.
One deft to pay the plaintiff's costs, and the plaintiff to pay the prevailing deft's costs.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/20-35336.pdf
Eighth Circuit: United States v. Ivan Espinoza
As those possessing abuse images tend to hoard them, the uploading of an image was sufficient probable cause for a search of the deft's electronic devices seven months later.
Under-guidelines sentence not substantively unreasonable.
Eighth Circuit: United States v. Herbert Green
As the officer removed the package containing contraband from where the delivery company had placed it in their facility, but in a manner consistent with the procedure agreed with the delivery company, the officer was working at the direction of the company in carrying it to the dog sniffing area, and the package was not seized until the dog's reaction had established reasonable suspicion.
The dog's reaction, combined with the suspicious appearance of the box, and the deft's demonstrated familiarity with the object provided sufficient probable cause for the arrest.
Scope of the search justified as a protective sweep exceeded Fourth Amendment bounds, since the sweep is permitted in order to determine whether there are othre people in the house, and the officers looked in cabinets and trash cans and opened a shoebox.
Remand to determine whether a waarant would have been sought anyway and the evidence admitted by means of an independent source
Eight Circuit: Craig Shipp v. Kevin Murphy
While state law generally governs witness competency in a civil case, federal law controls on questions relating to the qualification of expert witnesses; harmless, as the exclusion was correct under federal law and the testimony cumulative.
A finding of good cause for the substitution of an expert witness after discovery does not compel the admission of substantively different testimony form the second expert.
Referring state prison imate to medical services for special shoes was not deliberate indifference on the part of the warden.
Doctor's lack of recognition of the need for orthopedic shoes, an omission that eventually resulted in an amputaition, did not rise the level criminal recklessness needed to present an issue of deliberate indifference. Other employees similarly would not have had the requisite disregard.
CONCURRENCE/DISSENT
Nurse's testimony on the negligence of the doctor was admissible expert testimony, given her credentials and the need for a flexible, fact-specific inquiry. Given the warden's habitual follow-up inquiry with medical services, the warden had sufficient knowledge to present a genuine issue of deliberate indifference. Physician's and administrator's conduct presented a genuine issue for trial.
Eighth Circuit: J.B. Hunt Transport, Inc. v. BNSF Railway Company
Arbitration party's pre-confirmation suit sought declatory judgment as to a specific finding and specific performance as to a specific term, rather than enforcement of the award generally, and therefore wasn't untimely.
Suit wasn't moot due to the expected confirmation of the award, since it would give the plaintiff something beyond the confirmation.
The request for specific performance, however, would constitute a modification of the award contrary to the arbitration statute.
Award's definition of certain terms was exclusive, given the clear decision and the lack of language indicating otherwise in the award.
Where the terms of the Award are ambiguous as to which rates the competitor must disclose to its JSA partner, a fair resolution looks to those rates that are most relevant to the substance of the JSA.
Eighth Circuit: Tom Magee v. Benjamin Harris
As the mail carrier's errand for a friend arose from a personal motive and wasn't fairly and naturally incident to his duties, the state law presumption of acting within the scope of employment when driving a vehicle owned by the employer was sufficiently rebutted.
Although there was no written policy forbidding it, the policies incorporate managerial directives, and the manager's testimony that such a break was forbidden sufficiently supports the court's determination that the detour was unauthorized.
Driving to the store for a friend's dog food was of a sufficiently marked and decided character to take the mail carrier outside the scope of their employment. Returning to the break place did not return the carrier to the scope of employment, as the employee must return to the point of deviation or to a place where he should be located inthe performance of his duties.
Scope of employment is a threshold question under the act, and does not require jury determination as part of the merits.
https://ecf.ca8.uscourts.gov/opndir/21/08/202590P.pdf
Eight Circuit: Alvin Jackson v. Dexter Payne
When assessing petitioner's mental capability, lack of detail on childhood tests is insufficient to establish that the childhood tests should not be relied upo, with the appropriate fixed margin of error.
Where the low end of the IQ scores is within the defined range, consideration of the second factor is the test is compulsory; a borderline test number can't be offset by other factors.
Court did not clearly err in considering childhood data, as petitioner has been incarcerated for most of his adult life. Adaptive strengths, particularly within the controlled environent of prison, are not necessarily relevant to the consideration of adaptive deficits.
Supreme Court precedeent prohibits capital punishment where the intellectual disability exists at time of execution.
DISSENT
Adaptive strengths developed in prison are relevant to the inquiry. Data insufficient to carry the petitioner's burden of proving disability; court shifted burden sub silentio. State statute also has a presumption against petitioner, requiring him to prove unconstitutionality.
Eight Circuit: Awil Mohamed v. Merrick B. Garland
Where there is a thresold event necessary for the violence that petitioner claims would result from deportation, the court should consider the sequence of events, rather than the risk factors in the aggregate.
Board did not impermissably find facts when pointing out that, given the situation in the country, the probablility of the adverse events occuring was low.
For purposes of the statute, a government unable but not unwilling to stop the torture does not acquiesce in it.
DISSENT
Considering the risk factors in the aggregate is consistent with governing law. Board found facts, and they don't necessarily establish that it isn't more likely than not that petitioner will be tortured.
Seventh Circuit: USA v. Jesus Beltran-Leon
For purposes of the sentencing factor, torture by arresting third-party state isn't sufficient basis to justify lack of cooperation with US investigations.
Proceedural explanation of sentence was sufficient; there is no need to march through all the different staturory factors and arguments.
Explanation of sentence was sufficiently comprehensive to dispel the suggestion that discussions of ethnicties shared with the judge impermissibly factored into sentencing.
Lack of contemporaneous objection forfeited claim that judge based sentence in part on a news report of country conditions that was outside the record and not made available to the parties.
Court's invitation to the deft to testify at sentencing as to the contents of an affidavit did not create a presumption of adverse inference when deft refused to take stand.
No plain error in judge's non-recusal after discussion of shared ethnicity.
Seventh Circuit: USA v. Elijah Vines
Expert testimony of federal investigator on the recalcitrance of victims wasn't an abuse of discretion or beyond the rule, since it was from experience and did not directly address the credibility of any witness.
Identification of deft from Facebook photo after victim provided name and the information that deft had a Facebook account was not an unduly suggestive photo identificaiotn, given the lack of police arrangement.
Phone voluntarily provided by a third party without access to its passcode could lawfully be searched under a subsequent warrant, since the third party held a valid possessory interest in the phone seperate from the privay interest in the data inside the phone. Analogy to a locked safe discussed in circuit precedent.
No clear error in denial of Franks hearing due to claimed misstatements supporting the warrant affidavit, as warrant had independent basis of probable cause apart from that testimony.
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