Seventh Circuit: Carl Leo Davis v. US

The Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague announced a substantive change in the law that applies to petitioners seeking collateral review of sentences imposed under a parallel provision of the mandatory sentencing guidelines, despite the Supreme Court's subsequent holding that the provision in the guidelines was constitutional, as the gudelines, in the interval, had become merely advisory.

This substantive shift in the law was a sharp reversal from precedent, legitimately causing the petitioners not to raise the issue on direct appeal.

A second substantive change in the law that removed an alternate basis for the sentence of one of the petitioners did not trigger a mandatory limitation period for filing the writ, as it would merely have shifted the ultimate basis for the sentence.

A plea deal carve out excepting any constitutionally impermissible factor incorporates any unconstitutional input present at sentencing.

Prior offenses should be considered categorically when deciding whether the conviction is a valid predicate.

(Important decision.  Again, all this is quick work.  Don't rely.)



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Sixth Circuit: United States v. Oscar Robinson

Above (almost double) guidelines sentence based on factors possibly resulting from addiction and the specific harms posed by the substance possessed and dealt is not substantively unreasonable.

Pre-plea disclosure of criminal history did not unfairly prejudice things.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0107p-06.pdf
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Fifth Circuit: Certain Undwr at Lloyds London v. Lowen Valley

As the insurer established a plausible theory of harm outside the claim, the insured was required to establish some reasonable basis of apportioning the damage; absent this proof, the insurer has no liability under state law.

http://www.ca5.uscourts.gov/opinions/pub/17/17-10914-CV0.pdf
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Fifth Circuit: Albert Pierre, Sr. v. Darrel Vannoy, Warden

Amended opinion.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30458-CV0.pdf


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Fifth Circuit: Gorman v. Sharp

As the Fourth Amendment requires a willful violation, a training officer who forgets to swap his gun for a dummy gun and shoots the other fellow in the chest does not violate the Federal Constitution by restricting his freedom of movement.

 http://www.ca5.uscourts.gov/opinions/pub/17/17-60515-CV0.pdf


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Fifth Circuit: In re Rosendo Rodruiguez

Rule 11 show-cause ruling on untimely capital Habeas filing.

Petitioner should have rebutted affidavit timely offered by the state.  No sanctions.

 http://www.ca5.uscourts.gov/opinions/pub/18/18-10337-CV0.pdf
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Fourth Circuit: Jose Ramirez v. Jefferson Sessions III

Amended opinion.

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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/
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~ , ,

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/
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~ , ,

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
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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



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~ , ,

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
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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
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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
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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
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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
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Ninth Circuit: Hughes v. Kisela


Summary per curiam.

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

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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
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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
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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
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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
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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
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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
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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
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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
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Seventh Circuit: USA v. Charlise Williams

No constitutional error where a court limits cross-examination on a peripheral issue designed to suggest bias and motive to lie, so long as the theory of the attack is made plain. 

No clear error in sentencing calculation of loss amounts that didn't take into account the lawfulness of claims asserted in the debt incurred during the fraud.

No error in sentencing calculation of number of victims by totalling the number of creditors stayed by each fraudulent petition.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-06/C:17-2244:J:Flaum:aut:T:fnOp:N:2166680:S:0
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Sixth Circuit: In re Blasingame

Trustee's sale of claim to a creditor operated as an assignment of claim under all theories of the claim; this removed the claim from the jurisdiction of the bankruptcy action.

A bankruptcy court's interpretation of its order assigning a claim to a creditor in exchange for value to the trustee is not a contract but an order, and is reviewed for abuse of discretion and not subject to clarification by extrinsic evidence.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18b0009p-06.pdf

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Fourth Circuit: US v. Daniel Sanchez


When a deft elects not to challenge an almost-completed sentence by Habeas, a challenge to the imposition of additional time after revocation of supervised release cannot be raised on the grounds that the original sentence was unconstitutional, as statute requires such challenges to be made by direct appeal or collateral challenge.

http://www.ca4.uscourts.gov/opinions/174169.P.pdf


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Fourth Circuit: US v. Eddie Fluker


Under categorical analysis, state robbery statute isn't a crime of violence, as it only required the minimum of force to take the object from the other person.

A postconviction challenge to a sentencing error after the completion of the sentence is not moot where the petitioner is currently incarcerated on a subsequent conviction to be served consecutively to the challenged sentence. 

No error in allowing testimony not presented at trial during a full resentencing, so long as the government is not given a second bite at the apple with respect to a certain sentencing decision.

 http://www.ca4.uscourts.gov/opinions/174690.P.pdf
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Second Circuit: Certain Underwriting Members of Lloyds of London v. Insurance Company


In business arbitration, party-appointed arbitrators are not limited by the usual tests of evident partiality; rather, a party seeking to challenge the outcome must establish by clear and convincing evidence an improper nondisclosure or a prejudicial impact on the award.

http://www.ca2.uscourts.gov/decisions/isysquery/406cb98d-3b23-41bf-b154-c6c24ff325e7/1/doc/17-1137-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/406cb98d-3b23-41bf-b154-c6c24ff325e7/1/hilite/

(Incertain members of Lloyds presumably limited to permissive intervention.)
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First Circuit: Morales-Melecio v. US


Erratum.

http://media.ca1.uscourts.gov/pdf.opinions/16-2064E-01A.pdf
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Tenth Circuit: United States v. Tapaha

Testimony of prior bad acts properly excluded as speculative and duplicative; given the circumstances of the assault, self-defense claim would not have been bolstered.

No error in denial of cross on own witness, absent court's finding of adversity.

No error in refusal to admit parts of the police report under prior consistent statements exception where fabrication wasn't alleged until prosecution's closing.

No error in refusal to admit parts of the police report to impeach, as police testimony only referred to deft's actions on the date of the offense, and not prior events.

https://www.ca10.uscourts.gov/opinions/17/17-2104.pdf
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Tenth Circuit: United States v. Francis


Challenge to sentencing factor element waived, as not raised at trial, and appeal does not cite plain error standard.

Police testimony that the recipient confidential informant had criminal record suffices to establish unlawful sale sentencing factor.

Insufficient proof to establish that deft thought that the informant was among the class of prohibited recipients for trafficking enhancement.

Imposition of sex-offender treatment without relevant findings was plain error, but no violation of substantial rights, given that treatment ordered earlier wasn't completed.

https://www.ca10.uscourts.gov/opinions/16/16-1449.pdf

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Ninth Circuit: Moldix-Metric Inc. v. McKeon Products Inc.


Whether the color of a product is protectable trade dress or a functional aspect of design is a question for the finder of fact, who must consider the functionality of alternative colors.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/05/16-55548.pdf
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Eighth Circuit: United States v. Daniel Stelmacher


Reimposition of supervised release conditions not unreasonable.  Bar on contact with mother of child, herself a felon, is permissible, since alternate contacts for direction of raising the child are available.

http://media.ca8.uscourts.gov/opndir/18/06/171421P.pdf
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Eighth Circuit: United States v. Javier Pulido-Ayala

Instinctive jump into the car by police dog (aka: "Jampy") was constitutionally permissible search, as the dog's initial movement towards the car would have justified the search.

http://media.ca8.uscourts.gov/opndir/18/06/171371P.pdf
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Eighth Circuit: United States v. Harold Stanley


No denial of effective counsel where deft waives on the understanding that non-lawyer next friend can serve as counsel, and the next friend's participation in the trial is limited during the proceedings.

No error in jury instructions disclaiming the evidentiary value of pro se statements.


http://media.ca8.uscourts.gov/opndir/18/06/164241P.pdf
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Sixth Circuit: John Stojetz v. Todd Ishee


State denial of Habeas for ineffective assistance not unreasonable, as the defendant's trial rights are not positive guarantees, they might have been strategically waived by counsel.

Trial counsel's voir dire description of mitigation as something to be balanced against aggravating circumstances when determining guilt did not prejudice determination of penalty, and might have been calculated to empanel mitigation-friendly jurors.

Deft counsel's lack of independent discovery interviews with accomplices not per se ineffective.

Lack of voir dire on murder publicity not unreasonable, as counsel might have been avoiding drawing attention to it.

So long as intent to kill is an element of both, not unreasonable for a state to allow jury to convict under contradictory theories of murder and abetting the crime.

Jury instruction establishing permissive inference of intent from possession of deadly weapon not unreasonable.

Collateral misconduct claims not raised on direct appeal waived, given state rule requiring exhaustion for any claims based on trial record.

Peremptory excusal of female jurors not unreasonable.

Victim-impact statements in closing not sufficiently plain to justify ineffective assistance.

No prejudice from eyewitness statement that deft had the intent to kill, given evidence of guilt.

No Brady violation on nondisclosure of medical records where deft had been aware of the injury.

Collateral challenge defaults not excused by counsel's nonperformance due to mental health issues; as counsel responded to show-cause orders and discussed non-filings with the court administration, there was neglect rather than abandonment.

No error in denial of postconviction discovery of grand jury proceedings, as indictment under multiple theories of the offence was merely speculative.

New testimony by accomplices and witnesses insufficient for actual innocence Habeas grant.

Sentencing court's view of mitigation not arbitrary and capricious.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0106p-06.pdf

[Editorial note: End the death penalty.]


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Sixth Circuit: Larry Cradler v. United States

Where a District Court has extensively considered merits, forfeited timeliness challenges to Habeas shouldn't be entertained on appeal.

As prior panel had used the facts of the offense to determine whether it was a violent crime, as opposed to using them to identify which divisible element of the statute had been violated, petitioner's claim isn't barred by precedent.

Not a crime of violence under modified categorical.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0105p-06.pdf
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Fifth Circuit: USA v. Alfredo Heard

Conviction for drug possession entered during the pendency of the drug conspiracy is not per se part of the same pattern of relevant conduct, but can be considered an element of criminal history.

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Fifth Circuit: Martha Kinard v. Dish Network Corporation


Imbalance between unionized and non-unionized workers' wages provided sufficient equitable necessity for injunction against unilateral imposition of final offer.

NLRB waived grounds for cross-appeal seeking injunction against future wage losses by not including the argument below and in the ULP.

http://www.ca5.uscourts.gov/opinions/pub/17/17-10282-CV0.pdf
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Third Circuit: Gregory Ricks v. D. Shover

In prisons, abuse of a sexual nature, either in single instances or in a pattern of conduct, can present an Eighth Amendment violation, but courts should not constitutionalize every malevolent touch.

http://www2.ca3.uscourts.gov/opinarch/162939p.pdf
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Second Circuit: Wilson, et. al. v. Dynatone, et. al.

Deft's registration of copyright in sound recording as "work for hire" and lack of subsequent royalty payments were insufficient repudiations of the plaintiff's rights in the composition to trigger the statute of limitations on the plaintiff's claim.


 http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/2/doc/17-1549_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/2/hilite/
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Second Circuit: In re: World Trade Center Lower Manhattan Disaster Site Litigation


Given answers to questions certified to New York court, exposure to liability is insufficient grounds to waive the state's prohibition of state constitutional challenges made by state entities to state statutes. 


 http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/1/doc/15-2181_opn_2.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/1/hilite/
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Federal Circuit: Acree v. O'Rourke


Review panel has a duty to determine that the claimant's withdrawal of claim is done with a knowledge of the consequences; this does not conflict with the claimant's right to withdraw the claim.

http://www.cafc.uscourts.gov/sites/default/files/17-1749.Opinion.5-31-2018.1.pdf
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Federal Circuit: WMI Holdings Corp. v. US



As plaintiff didn't sufficiently establish value of particular assets within a group acquisition, court was not obliged to independently evaluate the assets.

(NB:  we don't know many things, but we especially don't know tax and patent.  As always, entertainment purposes only.)


http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1944.Opinion.6-1-2018.1.pdf
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Eleventh Circuit:Alfonso Ponton v. Secretary, Florida Department of Corrections


Where a court recharacterizes a pleading as a habeas filing without informing the deft/petitioner, the petition does not count towards the statutory limit on second and successive findings; this rule applies to initial filings that predate the supreme court decision that established the rule.

http://media.ca11.uscourts.gov/opinions/pub/files/201610683.pdf
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Eleventh Circuit: Campbell v. US


No inadequate assistance of counsel where deft's in-court admission of not living in the house jeopardized his standing to challenge a search there.

Deft could not have challenged the search anyway, as his primary purpose there was business-related.


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Eleventh Circuit: Livingston Manners v. Officer Ronald Cannella, et al.

Arguable probable cause suffices for qualified immunity on S1983 claim. 

Driving 176 yards to lit gas station sufficed to establish deft was fleeing.

Refusal to be handcuffed while rolling on ground made punching and tasing reasonable.

http://media.ca11.uscourts.gov/opinions/pub/files/201710088.pdf
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Eleventh Circuit: Pamela M. Perry, M.D. v. The Schumacher Group of Louisiana, et al


District court retained jurisdiction over action despite joint stipulation as to the sole unadjudicated claim, as only a stipulation as to the entirety of the action would suffice to dismiss the action.


 http://media.ca11.uscourts.gov/opinions/pub/files/201615400.pdf
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Eleventh Circuit: USA v. Sally Jim


Where gambling revenues are used for the welfare of tribe members, statute requiring tax payments on Indian gambling business prevails over earlier statute exempting Indian general welfare payments from taxation.

Refusal to amend monetary judgment against an intervenor of right was not an abuse of discretion.

http://media.ca11.uscourts.gov/opinions/pub/files/201617109.pdf
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US v. Marcel King



Possible future offender registration requirement is an insufficient collateral consequence of supervised release revocation to prevent mootness after completion of the sentence.


http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/04/17-10006.pdf
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Ninth Circuit: Luther v. Berryhill



SSA ALJ must explain discounting of 100% VA disability finding.


 http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/04/16-55987.pdf
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Ninth Circuit: Pacific-Western Bank v. Fagerdala



Purchase of a subset of claims in a class is not per se proof of bad faith; bankruptcy court must consider whether there is either an ulterior motive or a plan to injure the other creditors beyond enlightened self interest.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/04/16-35430.pdf
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Ninth Circuit: Hodson v. Mars Inc.


Not disclosing the possibility of child or slave labor in the supply chain doesn't violate state disclosure laws, as the omission does not relate to a physical defect affecting the central function of the product.


 http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/04/16-15444.pdf
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Eighth Circuit: A.H. v. St. Louis County, Missouri



Insufficient proof for deliberate indifference S1983 claim relating to jail suicide; a plan to defeat the problem suffices to defeat municipal liability.

Mere performance of the merely ministerial duties exempted from immunity suffices to exculpate from claim.

Improper medical treatment claim can't be brought under disability statutes.


http://media.ca8.uscourts.gov/opndir/18/06/171198P.pdf


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Eighth Circuit: United States v. William Marshall



No abuse of discretion in sentencing, as court did not explicitly rely on prosc. assertion that deft left state to avoid a warrant.

Identity theft sentence for florist living under a false name for fear of the mob generally reasonable.  Bare assertion of indigence unsupported.


http://media.ca8.uscourts.gov/opndir/18/06/164499P.pdf


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Seventh Circuit: Highway J Citizens Group UA v. TRAN



Deference to implicit agency view that road renovation project falls within NEPA exclusion, since agency approved the program.


http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-05/C:17-1036:J:Easterbrook:aut:T:fnOp:N:2165825:S:0
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Seventh Circuit: John Crane, Incorporated v. Shein Law Center, Ltd.



Insufficient personal jurisdiction over out of state counsel under state long-arm statute where all contacts with forum state were incidental to the litigation.


http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-04/C:17-1926:J:Kanne:aut:T:fnOp:N:2165287:S:0


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Seventh Circuit: Cheryl Dalton v. Teva North America



Bare statement of diversity of citizenship does not suffice for jurisdiction.

State liability statute required expert testimony on causation; neither a claim of obviousness nor a strict liability theory of claim defeats this.


http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-04/C:17-1990:J:Barrett:aut:T:fnOp:N:2165052:S:0
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Sixth Circuit: Sunrise Cooperative v. United States Dep't of Agric.



Agency's regulation of benefit plan foreclosed by Chevron step one: although there have been substantial changes in the business entity, the statute unambiguously qualifies the entity as a legitimate recipient.


http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0104p-06.pdf
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Sixth Circuit: United States v. Alejandro Cota-Luna



Court's rejection of plea agreement was an abuse of discretion, as the stated reasons weren't relevant to the defts culpability.  (Deft had no knowledge of the amount of drugs underneath the truck.)

Reassigned on remand.

Concur in J:  legal error in safety valve relief sentencing consideration sufficed for remand.


http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0103p-06.pdf
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Fourth Circuit: Kathy A. Netro v. GBMC



Portion of unpaid state court judgment that plaintiff would eventually have to reimburse to the federal government sufficed for Article III injury for the plaintiff.

Statute, although not formally a qui tam statute, effected a partial assignment of claim sufficient for standing.

Delay in payment of judgment not unreasonable, though.


http://www.ca4.uscourts.gov/opinions/171597.P.pdf




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Second Circuit: US v. Castillo



Government's premature concession that advisory sentencing guidelines residual clause was void for vagueness did not forfeit the claim, as it's a question of law, and the court can decide on its own.

Offense can be defined for purposes of modified categorical review by combining common law, state codes, and MPC.

Recklessness suffices for the mental state when categorizing manslaughter as a crime of violence.

Under modified categorical review, state manslaughter statute is a crime of violence, as even an omission can(?) require recklessness.

http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/2/doc/16-4129_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/2/hilite/
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Second Circuit: duPurton v. US



New evidence insufficient for coram nobis petition, as it doesn't conclusively establish earlier error.
http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/1/doc/17-151_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c03aa681-4808-489f-8380-da2ee3800b29/1/hilite/
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First Circuit: Potvin v. Speedway LLC


Property owner has no duty to warn where the danger is open and obvious.

Distracting effects of nearby gas pumps waived as not raised below.

Absent evidence of design defects in statutorily mandated safety devices, no duty to remedy any danger they present.

No abuse of discretion in District Court's substitution of one deft for another, given offer to indemnify.

"Longiloquent" apparently a word. 


http://media.ca1.uscourts.gov/pdf.opinions/17-1993P-01A.pdf
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First Circuit: Coskery v. Berryhill



Dicta: Deference to agency view that amendment of regulation didn't have retroactive effect.

ALJ's adverse credibility determination can be upheld on other grounds.

ALJ considered appropriately broad range of evidence.
http://media.ca1.uscourts.gov/pdf.opinions/17-1886P-01A.pdf
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First Circuit: US v. Melendez-Gonzales


AUMF for the War of Terror sufficed for statutory tolling of the statute of limitations; the indictment might otherwise have been untimely.

Court's instruction that a group of visitors not attend in full military dress did not, for constitutional purposes, close the courtroom.  Challenge to court's subsequent mention in jury instructions waived for not being raised below.

Prosc. witness description of "fraud" not unfairly prejudicial, possible hearsay harmless error.

Sentencing bumps, including uncharged conduct, established by preponderance; longer sentence for deft convicted of fewer counts not unreasonable.


http://media.ca1.uscourts.gov/pdf.opinions/17-1084P-01A.pdf

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First Circuit: US v. Lawson


SORNA -- remand for unexplained upward variance in period of supervised release.


 http://media.ca1.uscourts.gov/pdf.opinions/17-1084P-01A.pdf
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Signing off for the week.



Much reading to do about early modern law & drama.  Back next week, if the crick don't rise.  Decisions in the interval (including some from yesterday) are water under the dam.  This site is basically an odd mix of work-in-progress, proof-of-concept, and going concern.  In short, I post when I have the time.  Kind of a batting practice, really.  Cheers.

-CB
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Fifth Circuit: Marc Veasey, et al v. Greg Abbott, et al


En Banc, Election Law

(Panel of 15)

  (7 + 2 partial* & in the judgment)

*A claim of discriminatory purpose in the passage of a law cannot be based on statements from legislators opposed to the passage of the bill.* (This part not joined by the 2)

In assessing discriminatory effect under the Voting Rights Act, a multi-factor test should be used, as opposed to a bright-line nexus requirement.

No ruling on violations of the 1st and 14th Amendment burden of right to vote, as a finding of statutory violation results in the same remedy.

 Voter ID requirement was not a poll tax before the law was changed to make the ID free, and is still not a poll tax.

Not an abuse of discretion for the District Court to fashion a remedy, as the legislature is out of session.

     Concurrence  (2, both joining plurality, one in part):

Multifactor test good, as 5th invented much of it.

Won't open the floodgates, as courts can closely weigh factors.

                                       Concurrence / Dissent (5)

Not a poll tax.  Opinion otherwise incorrect.  (68pp, mostly findings and merits)

                                       Dissent (3, all in c/d above)

ID requirement still in place, since those who now have the ID must show it.

Judge below made myriad errors.

           Concur/Dissent, Concur in J (1, joining plurality in part)

Discriminatory motive analysis of the plurality re-weighed merits inappropriately.

                                                                        Dissent (6, all non-plurality)

Record justifies reversal on discriminatory purpose.

                                                                        Dissent (2, both in prior dissent)

Record justifies reversal on discriminatory effect.

Dissent (1, Partially joined plurality)

Record justifies affirming on discriminatory intent.

Takeaway (remember, this is quick work) 9 for Remand for multifactor test on discriminatory effect; 8 for affirming on discriminatory purpose (7 for remand); 14 for the lack of Poll Tax violation; 3 for egg salad; 2 for pastrami.


 Marc Veasey, et al v. Greg Abbott, et al
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Third Circuit: USA v. Raymond Napolitan


Habeas, Federal Jurisdiction


A federal court does not abuse its discretion in ordering a custodial sentence to be served consecutively with a state sentence despite the possibility that the state sentence was rendered unconstitutionally. 

Procedurally, this means that a state custodial sentence cannot be challenged on constitutional grounds on federal direct appeal.

USA v. Raymond Napolitan
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Second Circuit: United States v. Jones


Sentencing


Plain error to hold under categorical review that state statute is a valid predicate crime of violence for the purposes of the sentencing guidelines.

United States v. Jones
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Second Circuit: Orchard Hill Master Fund v. SBAC Corp.


Contracts, Your guess is as good as mine


Where a contract for payment of interest on a note compels offsetting payments where the note is converted between the computation date and the payment date, the payment of final interest to the noteholder upon maturity is a contractually distinct mechanism, and the contract provision canceling the first mechanism is most appropriately read as enabling the second.

Perhaps.


Orchard Hill Master Fund v. SBAC Corp.
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Second Circuit: Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties


International, FSIA


Error for court below to use the Executive Order implementing sanctions to define the scope of foreign state entities under the FSIA.  Definition comes from established constructions.

US corporate entities cannot equitably be read as alter egos of foreign citizens in order to qualify for the protections of a statute requiring foreign nationality.  An equitable alter ego construction can, however, be used to establish the merits of a claim against the entity on behalf of the state.

Insufficient day-to-day control and disregard of the corporate form to establish entity's liability on behalf of the foreign state.

Although second statute is codified proximate to the FSIA, an agency or instrumentality might qualify under one but not the other, since the reference in one statute is to foreign states, and the other refers to terrorist organizations.

Alter ego implies a more profound degree of control than does agency/instrumentality.

Government had a possessory interest in the seized assets because the assets met the terms of the executive order, not because the court trustee had actual possession.



Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties
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Second Circuit: In re 650 Fifth Avenue and Related Properties


FRCP, Fourth Amendment


(Summary judgment rulings on merits.)

Sua sponte grant of summary judgment on affirmative defense of statute of limitations procedurally prejudiced the nonmovant, and is barred under FRCP.

Warrant in civil forfeiture action that did not explicitly incorporate the supporting affidavit was insufficiently particular.  Error by the court below in holding that evidence preservation and discovery obligations meant that the evidence was admissible under inevitable discovery, since the action at the time of the service of warrant imposed limited production requirements.

Seven page caption.


In re 650 Fifth Avenue and Related Properties
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First Circuit: Marrero-Mendez v. Calixto-Rodriguez


S1983, Religion, First Amendment, Establishment Clause


Even absent consideration of the on-point precedent, denial of qualified immunity for S1983 challenge to police group prayer would be upheld.



Marrero-Mendez v. Calixto-Rodriguez
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Out of Time



Out of time -- here are the rest of the links:

Ninth:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/18/14-15695.pdf


Tenth:

https://www.ca10.uscourts.gov/opinions/14/14-1294.pdf

https://www.ca10.uscourts.gov/opinions/14/14-1164.pdf


Eleventh:

http://media.ca11.uscourts.gov/opinions/pub/files/20161366114000.ORD.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201614556.ord.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201614756.ORD.pdf


DC:

https://www.cadc.uscourts.gov/internet/opinions.nsf/6F1E74625D7898A985257FF5005066F6/$file/12-3086-1625475.pdf

https://www.cadc.uscourts.gov/internet/opinions.nsf/3D375003952F4CDE85257FF500506715/$file/14-5305-1625459.pdf

https://www.cadc.uscourts.gov/internet/opinions.nsf/19C8333280CE902F85257FF50050673C/$file/15-5051-1625448.pdf

https://www.cadc.uscourts.gov/internet/opinions.nsf/9890A7B22D2FAFC385257FF500506755/$file/15-5118-1625439.pdf


Federal Circuit:

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1038.Opinion.7-15-2016.1.PDF


Cheers.

-CB
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Eighth Circuit: James Pudlowski v. The St. Louis Rams LLC


Class Actions, CAFA, Federal Jurisdiction



Absent claim of lack of jurisdiction, removal notice under CAFA need only make a short plain statement with a plausible claim to removal.  As there was no obligation to prove diversity at removal, affidavits establishing diversity can be considered post-removal.


James Pudlowski  v.  The St. Louis Rams LLC
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Eighth Circuit: Mary Hurst v. Southern Arkansas University


Bankruptcy


As payments can be made while maintaining a minimal standard of living, no discharge of student loan debt.

Dissent: Undue hardship under totality.


Mary Hurst  v.  Southern Arkansas University
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Eighth Circuit: Civic Partners Sioux City, LLC v. Main Street Theatres


Contracts, Property



Covenant outside the lease to obtain the consent of a third party prior to the ending of a lease did not bar the ending of the lease according to the lease's plain terms.  Lease's commitment to make payments between the parties did not bar the ending of the lease.

Although the third party was a more than incidental beneficiary of the lease, this would merely provide a cause of action upon breach.


  Civic Partners Sioux City, LLC  v.  Main Street Theatres
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Eighth Circuit: United States v. Shane Rodriquez



Fourth Amendment, Sentencing


Given parole record and explicit general consent to search of the vehicle, vehicle search was a legitimate parole search, and not an unlawful search incident to arrest.

 United States  v.  Shane Rodriquez
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Eighth Circuit: Capson Physicians Insurance Co v. MMIC Insurance Inc.


Insurance, Contracts


Although state insurance law does not recognize an affirmative duty to inform an insurance company of facts relevant to the contract, state principles of equitable rescission compel a party with superior knowledge of facts relevant to the contract to disclose those facts in order for the contract to withstand challenge.


Capson Physicians Insurance Co  v.  MMIC Insurance Inc.
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Eighth Circuit: Kim Shultz v. Bryan Buchanan


S1983, Fourth Amendment


Yelling and a thud sufficed for emergency aid exception to Fourth Amendment bar to entry of home.

Officer's having sent putative victim into the house does not bar the exception.

Qualified immunity on Taser shock, as the injury was de minimis.

Supplemental jurisdiction over state claims was appropriate.


Kim Shultz  v.  Bryan Buchanan
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Eighth Circuit: Jose Perez-Garcia v. Loretta E. Lynch


Immigration


Sufficient evidence and due process where process is issued for compulsory removal on the belief that the alien did not comply with an order of voluntary removal, despite petitioner's claim that he had in fact had departed and then later returned with foreign documents to that effect.

Jose Perez-Garcia  v.  Loretta E. Lynch
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Seventh Circuit: Thomas Wilson v. Warren County, Illinois


FHA, S1983, Discrimination



Deliberate photographing of property, conduct that triggered psychological hospitalization, would have been done regardless of the plaintiff's condition, and therefore cannot be the basis for a claim of discrimination under the FHA.

Personal and and municipal S1983 claims barred, as officials were unaware that the repossession was unlawful.

Substantive due process not implicated, as a verbal statement of the law was insufficient to create a state-sponsored danger of inaction during the subsequent repossession.


Thomas Wilson v.   Warren County, Illinois
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Sixth Circuit: James McKinney v. Bonita Hoffner


Habeas, AEDPA, Miranda


State Supreme Court's holdings -- that a facially equivocal statement was not interrogation and that deft's invocation of right to counsel followed shortly thereafter by an expressed willingness to talk was not a Miranda violation -- might have been made by a fair-minded jurist.

Dissent doesn't account for AEDPA default.

Dissent -- analysis of second utterance should be considered solely as waiver of expressed invocation.


 James McKinney v. Bonita Hoffner
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Sixth Circuit: Sheet Metal Employers v. Absolut Balancing


Labor, Arbitration


Federal law governs on issues of formation relevant to CBA agreements to arbitrate.


Sheet Metal Employers v. Absolut Balancing
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Fifth Circuit: USA v. Quentin Jeffries


Denial of En Banc, Sentencing


Petitioner did not establish that sentence was passed under the residual clause of the Guidelines.

Circuit has held that the Guidelines residual clause is not implicated by the ACCA residual clause holding of the Supreme Court.


 USA v. Quentin Jeffries
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Fifth Circuit: Orlando Gutierrez v. Loretta Lynch


Immigration, Estoppel


For the purpose of determining status at the attainment of majority, an alien becomes a lawful permanent resident upon approval of application, not upon the date of an eventually approved application.

Given lack of affirmative misconduct, agency cannot be equitably estopped from arguing that the status was not timely obtained.

Orlando Gutierrez v. Loretta Lynch
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Fifth Circuit: Helen Nicholson v. Securitas Security Svc USA



Employment, Discrimination


Right to control the work of an employee is not relevant under the federal age discrimination statute where there is an admission of employment.

Staffing services agreement to end employment at the request of the client company can create a genuine issue of material fact as to complicity in discrimination where the usual inquiries are not made.


Helen Nicholson v. Securitas Security Svc USA
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Fifth Circuit: USA v. Benito Sanchez-Rodriguez


Sentencing, Immigration


 For the purposes of immigration determinations, under modified categorical review, state statute prohibiting trafficking in stolen goods is not necessarily a crime of theft
 

USA v. Benito Sanchez-Rodriguez



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Fifth Circuit: Karen Sudduth v. TX Hlth and Human Svc Cmsn, et al


Appellate Procedure, FRCP,


Given that courts are permitted to use electronic filing and that the local rules required it, appeal that generated notice and receipt a day late is untimely, despite assertion of technical issues.

Karen Sudduth v. TX Hlth and Human Svc Cmsn, et al



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Fifth Circuit: Jillian Johnson v. World Alliance Financial Corp.,


Contract, Tort



Agency regulations on reverse mortgages must be explicitly incorporated in the terms of the mortgage in order to be the basis for a borrower's claim.

No implicit guarantee in a reverse mortgage that the lender will subordinate all intervening liens.

No cause of action of fraudulent inducement where the intervening lien does not support foreclosure.



Jillian Johnson v. World Alliance Financial Corp.,
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Second Circuit: United States v. Compton


Fourth Amendment, Terry Stops


Motorist's abrupt visitation of a vegetable stand at the point at which the border immigration checkpoint came into view and the driver and passenger's subsequent separate purchases of peppers provided sufficient reasonable suspicion for the stop.

Observation that items in back seat were covered with a blanket was sufficient reason for prolonging the stop.


United States v. Compton
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First Circuit: Cornwell Entertainment, Inc. v. Anchin, Block & Anchin, LLP



FRCP, Statute of Limitations, Choice of Law, Fees, Legal Ethics


Motion for directed verdict arguing lack of fiduciary duty did not adequately preserve argument of qualified privilege related to statements to the government for post-trial motion for judgment notwithstanding the verdict.

Where the state law holds the statute of limitations to be three years for actions seeking damages and six years in an action seeking a remedy in equity, court did not abuse discretion in assigning a three year limit to an action seeking damages for a breach of fiduciary duty.

Doctrine of continuous representation equitably tolls the limit during the transactions at issue, not for the duration of the contractual relationship between the parties.

Reasonable minds could differ as to whether the negotiation for private airplane rental was damaged by the conduct.

Remand, as general verdict makes it impossible to discern theory of initial verdict.

Plaintiff's post-trial motion for fees under law of their state is precluded by the trial's choice of deft's substantive law.

Partner's lateraling to counsel's firm from prosecutor's office investigating parties to the case who was not timely screened does not require counsel to withdraw where the new partner had no actual knowledge of the investigation.

No abuse of discretion in unsealing post-trial testimony of jurors relating to process of verdict, as the public access interest outweighs the interest of confidential deliberations.



Cornwell Entertainment, Inc. v. Anchin, Block & Anchin, LLP
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First Circuit: Paolino v. JF Realty, LLC


FRCP, Environmental, Fees


No abuse of discretion in court's refusal to allow revised late-filed expert testimony, as it was duplicative of other testimony, and the equitable reason for the delay had a procedural remedy.

Judgement was not against the weight of the evidence, as the only proof of pollution was from a mingled source and there are other remedial efforts in place to effect the purposes of the statute.

Award of fees under statute upheld, as suit was filed after defts had remedied the harm.
 
Paolino v. JF Realty, LLC
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First Circuit: US v. Reed, III


Sentencing, ACCA


Two predicate offenses properly considered separately, despite the single plea agreement, as there was an intervening arrest.

Absent a showing that the offenses were part of a single event or spree, the predicates are properly considered separately.


US v. Reed, III
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