Second Circuit: United States v. Muzio


Insufficient substantive error in sentencing where mandatory minimum is imposed for acquisition and possession of abuse images where the contact with the victims was virtual rather than physical.

Insufficient procedural plain error in sentencing where a 200 year Guidelines maximum is calculated to be 500 years, where the sentence ultimately follows statutory minimums instead.

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Second Circuit: La Liberte v. Reid


Motion to strike pleading in Federal court based on state statute requiring an elevated pleading for defamation cases is not valid, as it conflicts with FRCP pleading and summary judgement rules.  As the statute awards fees only for its own process, dismissal under the Federal pleading rules does not automatically justify an award of fees.

Deft is not shielded by the CDA for independently authored social media posts that include information available elsewhere on social media.  Sole authorship of the post in question is sufficient material contribution to establish the poster as the sole information source for the purposes of a defamation claim.

Testifying at public meetings in addition to a lot of other public speech is insufficient to establish a person as a limited purpose public figure, since the designation was created to recognize that some figures had sufficient media clout to respond to attacks on their own.

A juxtaposition of an image of the plaintiff with an image of racist conduct was sufficiently clear, both in itself and within the frame of general knowledge, to establish libel per se by implication.










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Hiatus

Brief hiatus, as there are other demands on the attention.  Still a going concern.  Cheers.

CB
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http://www.ca5.uscourts.gov/opinions/pub/17/17-60774-CV0.pdf

http://www.ca5.uscourts.gov/opinions/pub/18/18-40270-CV0.pdf

 http://media.ca8.uscourts.gov/opndir/18/09/172759P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/181725P.pdf

 http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/24/16-56633.pdf

https://www.ca10.uscourts.gov/opinions/17/17-1236.pdf

Quick work tonight, however slow -- travelling, distracted, what have you.  Just batting practice.

-CB
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Sixth Circuit: Tenn. Clean Water Network, et al. v. TVA

As the Act requires a point source, not seeping groundwater or permeable hydrological network, the pollution here is outside of its scope.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0214p-06.pdf
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Sixth Circuit: Ky. Waterways Alliance v. Kentucky Util. Co.

Act does not cover groundwater pollution or complex hydrological networks; the precedent suggesting this in fact discusses interconnected larger waters, and federalism and practical enforcement concerns dictate a narrower reading of the regulated bodies of water.

Prudential abstention is not available to the court where a citizen cause of action is directly created by a statute that makes use of factors that would suggest abstention.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0213p-06.pdf




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Third Circuit: Holly Judge v. Shikellamy School District


Presumptively valid and willful resignation forecloses any direct claim of discriminatory duress.  Multi-factor test from 9th governs.

http://www2.ca3.uscourts.gov/opinarch/172189p.pdf


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Third Circuit: Robert Schultz, Jr. v. Midland Credit Management


FDCPA Act boilerplate debt collector's letter threatening reporting to the IRS when the matter in question was less than the amount the IRS required be reported states a claim, and may later prevail,  as it only takes one juror.

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Third Circuit: USA v. Reynaldo Rivera-Cruz


When the statutory maximum or minimum sentence is outside of the guidelines range, the range drops out of the sentencing scheme.  Subsequent revisions to the guidelines therefore do not serve as the basis for an appeal of the sentence.

http://www2.ca3.uscourts.gov/opinarch/173448p.pdf


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DC Circuit: Blogger: ANR Storage Company v. FERC

Where two companies appear to have virtually identical shares in their relevant markets, it is an abuse of discretion for an agency to allow only one of the two to charge market rates without stating a reasonable justification for the distinction.

https://www.cadc.uscourts.gov/internet/opinions.nsf/9E0C54378AB5C5A18525830F004E9C61/$file/16-1285-1751902.pdf
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Eleventh Circuit: USA v. Jason Alexander Phifer

When a deft faces criminal or civil penalties, deference to an agency's interpretations of its own regulations is inapposite, as an agency has an obligation to clearly state the rule.

http://media.ca11.uscourts.gov/opinions/pub/files/201710397.pdf


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Tenth Circuit: Anderson Living Trust v. WPX Energy Production

Denial of class certification does not merge into a stipulated settlement for the purposes of appellate jurisdiction over a challenge to the denial of class certification as an element of the final judgement.

https://www.ca10.uscourts.gov/opinions/17/17-2029.pdf
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Ninth Circuit: Tin Cup LLC v. Corps of Engineers

Where a statutory directive occurs within an appropriations bill, the presumption is that it binds only for the period of the appropriation; this can be overcome by sufficient indications of futurity such as "hereafter."  Language in the imperative such as "will" and "shall" is insufficient.

Concur in J: In addition to the command in the imperative, the directive had a closing point, which meant that it wouldn't automatically sunset.





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Eighth Circuit: Deaton Oil Company, LLC v. United States

A claim that an agent did not pay taxes and make payments does not state a claim as a defense to nonpayment unless the nonperformance incapacitated the principal in that respect -- a high bar.

http://media.ca8.uscourts.gov/opndir/18/09/172326P.pdf
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Seventh Circuit: Kevin Czech v. Michael Melvin

Instructing the jury on Felony Murder theory of First Degree Murder arising from the use of the firearm, whether or not there was an independent felonious purpose to the use of the firearm, was an error of state law.  Precedent holds that this should be examined for harmless error, seemingly establishing a Due Process violation by implication, but one not clearly established for the purposes of Habeas petitions.  Here, though, the error of stare law was harmless, as the verdict would have been the same.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-21/C:17-1838:J:Griesbach:aut:T:fnOp:N:2222884:S:0

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Sixth Circuit: Ahmad Issa v. Margaret Bradshaw

When considering hearsay statements by a co-defendant that tend to implicate another defendant, the critical aspect that determines whether the truth of the matter asserted can be admitted despite the Confrontation Clause is not the indicia of reliability from some preconceived litmus such as the testimonial form of the statement, but rather the totality of the circumstances.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0212p-06.pdf
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Third Circuit: USA v. Keonna Thomas

Portions of plea hearing under seal in trial record are appropriately withheld given a sufficient showing of probable harm.  Although the First Amendment applies to records of plea proceedings, here the court provided sufficient specific reasoning under seal, considered alternatives, and labeled the sealed sections.  The common-law right of access is countered when it is the type of information that courts would normally protect, and there was sufficient risk of a clearly defined and serious injury.

http://www2.ca3.uscourts.gov/opinarch/172644p.pdf
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Third Circuit: Troy Reese v. Warden Philadelphia FDC

The Bail Reform Act system for contesting pretrial detention is the sole remedy for challenging federal pretrial detention; although Habeas theoretically runs, the prudential limits on the writ require the courts to deny any requests for relief not channeled through the Bail Reform Act processes.

http://www2.ca3.uscourts.gov/opinarch/181749p.pdf


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4th Circuit

New decisions haven't been appearing for several days on the 4th's site, and they appear to be replacing their web team.   Biglaw salmon-shirted minions, solos in Dinwiddie and other budding aristos are likely getting everything through PACER and the gossip down on Cary Street, but the People's Website will wait for the public feed to open up.  Unless, you know, we get bored or something. 

-CB
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    Other cases:

    (Serious brain-cloud setting in here -- punting the balance.)

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0210p-06.pdf

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0211p-06.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/161467P.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/16-56546.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/16-36072.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/14-56834.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/13-10637.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2691.Opinion.9-20-2018.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2256.Errata.9-20-2018.1.pdf


    -CB

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