Second Circuit: Seepersad v. Sessions

No equal protection violation in permitting aliens seeking readmission at the border to waive inadmissibility while requiring a showing of valid residency before granting a similar waiver to resident aliens, as Congress might have wished to encourage doubtful aliens to be elsewhere during the process.

http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/1/doc/16-64_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/1/hilite/

Second Circuit: AEI Life v. Lincoln Benefit Life

A conformity statement in a contract, when captioned as a conformity clause and not naming a particular jurisdiction, does not sufficiently manifest the intention of the parties to be bound by the law of a particular jurisdiction to operate as a choice of law clause.

Under center of gravity analysis, New York law governs the transaction.

State public policy interests against wagering insurance contracts establish voidability, not ab initio nullity, and the risk can therefore be incorporated in the drafting.

Notary verification on the instrument of trust formation created a presumption of validity that was not overcome by a challenge by a handwriting expert.

http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/2/doc/17-224_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/2/hilite/

First Circuit: IRS v. Murphy

There is no good faith exception for willful violations of a bankruptcy stay; it suffices that the IRS knew of the stay and intentionally violated it.

With regard to the protection against willful violation, a stay offers the same protections as a discharge order.

This standard was contemplated at enactment, so the implied waiver of sovereign immunity is exactly parallel.

Dissent: presumption is against the waiver of sovereign immunity.  As "willful" modifies "violation," IRS must knowingly violate a valid stay or discharge.

http://media.ca1.uscourts.gov/pdf.opinions/17-1601P-01A.pdf

First Circuit: AIG Property Casualty Co. v. Cosby

Souter, Associate Justice (Ret.), sitting by designation.  And Bill.

Given a more stringent parallel exclusion in the insurance policy, the more laconic exclusion creates an ambiguity sufficient to trigger the presumption for the insured and the resulting duty to defend.

http://media.ca1.uscourts.gov/pdf.opinions/17-1505P-01A.pdf

First Circuit: Congregation Jeshuat Israel v. Congregation Shearith Israel

Denial of en banc.

Clarification from panel (Souter):  holding only addresses trust obligations of parties.

Dissent from denial:  But res judicata.  Also, written contracts might not be the best way of getting at the truth, as the chartered entities didn't exist when the property transfer occurred.

http://media.ca1.uscourts.gov/pdf.opinions/16-1756O-01A.pdf

Eleventh Circuit: US v. Wenxia Man

Conspiracy requiring a third participant is sufficiently well-developed if the others are planning to find an alternative to agreement with the necessary participant

Deft's awareness of illegal nature of the weapons sale activity evinced sufficient specific intent to violate the licensing requirements of the Act.

Eagerness to do the transaction and the delicate and furtive nature of the conversations established sufficient evidence for the finding that deft was predisposed to the crime and therefore not entrapped.

Co-conspirator hearsay properly admitted.  Court could properly find an unidentified email address a co-conspirator.  Admission of contemporaneous uncharged bad acts proper, as sufficiently entwined. 

Sentence reasonable -- deft's US presence made her invaluable; no discriminatory error in court's sentencing finding that deft was faithful to her native country.

No plain error in Brady violation, given insufficient record/proffer.

http://media.ca11.uscourts.gov/opinions/pub/files/201615635.pdf

Eleventh Circuit: LABMD, Inc. v. FTC

FTC cease-and-desist order too vague to be enforced, since an identical order from a court would be unenforceable on its terms, and the order therefore does not abate a specific act or practice that violates the statute.

http://media.ca11.uscourts.gov/opinions/pub/files/201616270.pdf

Eleventh Circuit: Minott v. Brunello

Refusal of District Court to issue a warrant in rem for arrest of the vessel can be independently appealed.

Operation of the vessel in navigating the waters was sufficient maritime activity to give the court statutory in rem jurisdiction.

The lien against the vessel was perfected by the harm of the tort.

http://media.ca11.uscourts.gov/opinions/pub/files/201810374.pdf

Tenth Circuit: US v. Miller

Admission of expert testimony that did not clearly distinguish civil malpractice from criminal behavior was not an abuse of discretion.

Sufficient evidence where deft expert offers the only clear guidance on threshold of criminality, and court follows indications of another expert.

Indictment alleging dispensing of controlled substances by transaction as opposed to by substance not defective; additionally, would be harmless error as elements of the offense were identical.  No error in allowing conviction on theory of multiple dispensation where the crime is single dispensation. 

Absent curative instruction, plain error in constructive amendment of indictment when, during testimony at trial, prosecution witness alleged a second false statement.

Given the procedures used, state administrative vacatur did not make a prior suspension of medical license a legal nullity.

Sentence challenge moot, as already served.

https://www.ca10.uscourts.gov/opinions/16/16-1231.pdf

Ninth Circuit: Hughes v. Kisela

Summary per curiam.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/06/14-15059.pdf

Ninth Circuit: US v. Gibran Richardo Figueroa-Beltran

Given a state supreme court holding that a legislature could leave the identification of specific controlled substances for later determination, and a second holding by the same court that the simultaneous sale of two prohibited substances constituted two distinct offenses, question certified to the state court asking whether the elements of the state statute are divisible, which would merit closer scrutiny when asking whether they correspond to the federal statute.

"Pled."

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/06/16-10388.pdf

Ninth Circuit: Pike v. Hester

State Judicial Court finding granting an order of protection based on conduct that would be excused if lawful has preclusive effect under state's doctrine of issue preclusion in a subsequent S1983 action claiming a 4A violation on the search.

Dissent -- Parties didn't raise the issue, night-time dog-sniff of public employee's desk doesn't violate the 4A.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/06/16-16764.pdf

Ninth Circuit: Danny P. v. Catholic Health Initiatives

Statute requires that Plan Administrator reimburse for room and board at a mental health facility where a similar surgical or medical stay would be so reimbursed.

The court's reading does not conflict with agency interpretations.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/06/16-35609.pdf

Ninth Circuit: John Doe v. Regents

State writ of administrative mandamus is a substantive state proceeding, not merely a mechanism, and as such, is not subject to the Ex Parte Young exception to state immunity for federal remedies.

State claim that plaintiff had not exhausted judicial remedies by seeking administrative mandamus did not operate as a sufficiently unambiguous waiver of state immunity.

Denial of motion to dismiss is on exhaustion grounds can be appealed as a pendent matter.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/06/17-56110.pdf

Eighth Circuit: United States v. Ler Wah Guide

District Court judge's recognition at sentencing of a language barrier did not undercut the court's finding that an earlier waiver of jury trial and guilty plea had been knowing and voluntary, despite the deft's claim that simultaneous translation had made the proceedings impossible to follow.  (Also given a written form.)

http://media.ca8.uscourts.gov/opndir/18/06/172431P.pdf

Eighth Circuit: Daniel Ayala v. CyberPower Systems (USA), Inc.

Compensation agreement voidable only for cause was, as a matter of law, insufficient to overcome the state presumption of employment at will, as it didn't specifically address the point.

Dissent: Matter for the finder of fact.

http://media.ca8.uscourts.gov/opndir/18/06/171852P.pdf

Eighth Circuit: Mark Woodworth v. Kenneth Hulshof

A special prosecutor has absolute immunity for incidents of nondisclosure and conspiracy tied to the prosecution; such acts cannot be used to establish a conspiracy prior to the beginning of the prosecution.

Prosecutorial directives made by the judge did not strip him of absolute judicial immunity, as they were not binding on the prosecutor.

http://media.ca8.uscourts.gov/opndir/18/06/171667P.pdf

Eighth Circuit: US v. Matthew Helm

Certain downward adjustments to a guideline range, including reduction for time served, are modifications to a certain range; a retroactive modification in that range does not justify a challenge to the sentence where the initial downward reduction resulted in a below-guidelines sentence.

http://media.ca8.uscourts.gov/opndir/18/06/171284P.pdf

Eighth Circuit: James Humphrey v. Eureka Gardens Public Facility

A S1983 discriminatory treatment claim accrues for purposes of the statute of limitation when the plaintiff is aware of the adverse decision and capable of seeking injunctive or declaratory relief.

http://media.ca8.uscourts.gov/opndir/18/06/171265P.pdf

Seventh Circuit: William Wheeler v. William Hronopoulos

In a Section 1983 action alleging improper search, a claim at trial that the tip was hearsay does not properly preserve a claim on appeal that the confidential informant might not have existed at all.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-06/C:17-2073:J:Gilbert:aut:T:fnOp:N:2166644:S:0