State assault with a deadly weapon statute is a valid predicate crime of violence, as the requirement that the victim's immediate fear of reasonable bodily harm implies a use or threatened use of physical force.
As state robbery statute can be violated with violence to property, it isn't a categorical predicate crime of violence, and it doesn't match the generic definitions of robbery and extortion.
Questions about advisory sentencing guidelines are addressed under the rule of lenity.
As there is no requirement that the force used be violent, the state extortion statute isn't a predicate crime of violence.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf
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.
Ninth Circuit: NLRB v. Ironworkers Local 433
First Amendment ruling as to speech against the government was an insufficient change in existing law to justify relief from judgment enforcing a contempt adjudication on secondary picketing under the Act, as alternate mechanisms of speech such as leaflets are still available, and the Act is content-neutral.
Concur: Not ripe, as only a vague desire to picket, and no indication of enforcement plans by management.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/88-07283.pdf
Concur: Not ripe, as only a vague desire to picket, and no indication of enforcement plans by management.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/88-07283.pdf
Eighth Circuit: Leslie Camick v. Jefferson B. Sessions III
As an alien has the power to challenge the knowingness of waiver and petition for an extension, overstaying a voluntary departure order exhausts the benefit of permitted departure and allows the government to finalize the alternative order of removal, with all waivers of the voluntary departure grant intact.
(Again, all this is quick work. Not legal advice. Don't rely.)
http://media.ca8.uscourts.gov/opndir/18/06/163506P.pdf
(Again, all this is quick work. Not legal advice. Don't rely.)
http://media.ca8.uscourts.gov/opndir/18/06/163506P.pdf
Seventh Circuit: Warren Johnson v. Advocate Health and Hospitals
Reported statement of partially anonymous comparator as to their pay is neither hearsay nor sufficient to establish the validity of the comparator.
Descriptions of comaparators on unfair promotion claim, unfair assignments claim, and termination claim were not specific enough to establish them as legitimate.
Sworn statements and depositions averring discriminatory language suffice to present an issue for trial.
Even where a contractor performs many supervisory duties, a supervening agent who retains the ability to hire, fire, and discipline workers (beyond "rubber stamp" approval) can be liable for a claim of workplace discrimination.
Concur/Diss: Reported workplace speech was too sporadic to present an issue of a hostile work environment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-08/C:16-3848:J:Rovner:aut:T:fnOp:N:2168250:S:0
Descriptions of comaparators on unfair promotion claim, unfair assignments claim, and termination claim were not specific enough to establish them as legitimate.
Sworn statements and depositions averring discriminatory language suffice to present an issue for trial.
Even where a contractor performs many supervisory duties, a supervening agent who retains the ability to hire, fire, and discipline workers (beyond "rubber stamp" approval) can be liable for a claim of workplace discrimination.
Concur/Diss: Reported workplace speech was too sporadic to present an issue of a hostile work environment.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-08/C:16-3848:J:Rovner:aut:T:fnOp:N:2168250:S:0
Seventh Circuit: EEOC v. CVS Pharmacy, Incorporated
Award of fees against the Commission was an abuse of discretion, as there was a colorable argument that neither the Commission's own conciliation requirement nor the statutory requirement for same was a prerequisite to suit.
Sixth Circuit: United States v. Trevon Barcus - Eastern District of Tennessee at Knoxville
Categorically, the state statute was not a valid predicate for statutory offender registration, as it did not incorporate the specific intent required by the federal statute.
Given the statement in the commentary to the statute, offender lifetime monitoring is a valid predicate for a sentencing bump for crimes committed during a criminal justice sentence.
Release conditions mandating psychological treatment and polygraph are reasonably related to registration offense.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0109p-06.pdf
Given the statement in the commentary to the statute, offender lifetime monitoring is a valid predicate for a sentencing bump for crimes committed during a criminal justice sentence.
Release conditions mandating psychological treatment and polygraph are reasonably related to registration offense.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0109p-06.pdf
Sixth Circuit: Barbara Fletcher v. Honeywell Int'l, Inc.
The durational clause of a CBA applies to health coverage absent clear affirmative language to the contrary.
Lifetime health benefits for survivors of workers does not imply a similar vesting for workers; in fact, it argues against any ambiguity as to the question where the agreement is silent on that point.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0108p-06.pdf
Lifetime health benefits for survivors of workers does not imply a similar vesting for workers; in fact, it argues against any ambiguity as to the question where the agreement is silent on that point.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0108p-06.pdf
First Circuit: Caraballo-Caraballo v. Administracion de Correccion
In assessing comparators for a claim of workplace discrimination, the plaintiff's demonstrated ability in performing the present job should be taken into account.
Transfer to the Commissary, even absent diminution in rank or pay, was a sufficiently adverse employment action.
http://media.ca1.uscourts.gov/pdf.opinions/16-1597P-01A.pdf
Transfer to the Commissary, even absent diminution in rank or pay, was a sufficiently adverse employment action.
http://media.ca1.uscourts.gov/pdf.opinions/16-1597P-01A.pdf
First Circuit: US v. Rivera-Hernandez
Sentencing judge appropriately considered deft's particular situation, given reasoning outside of the sentencing memorandum.
No error in within-guidelines sentence above the level set by plea deal.
First Circuit: Doe v. Trustees of Boston College
State contractual guarantees of good faith and fair dealing apply to a student's relationship with their university; where procedures are published, this duty is displaced by a contractual guarantee of compliance with the stated procedures.
While the school's procedures were generally in accord with the published rule, possibly prejudicial ex parte communications during the tribunal's deliberations present a genuine issue of material fact for trial.
Despite plaintiff's indications of intent to file a lawsuit, an email from an officer of the deft promising an independent investigation did not create a binding contract, as plaintiff never evinced a willingness to strike a deal -- there was no consideration.
Statistics alone can't establish a Title IX claim on the outcome or for deliberate indifference; the specific mechanism of discriminatory action needed to be identified.
Procedural unfairness in student disciplinary decisions sounds in contract, not tort.
http://media.ca1.uscourts.gov/pdf.opinions/16-2290P-01A.pdf
While the school's procedures were generally in accord with the published rule, possibly prejudicial ex parte communications during the tribunal's deliberations present a genuine issue of material fact for trial.
Despite plaintiff's indications of intent to file a lawsuit, an email from an officer of the deft promising an independent investigation did not create a binding contract, as plaintiff never evinced a willingness to strike a deal -- there was no consideration.
Statistics alone can't establish a Title IX claim on the outcome or for deliberate indifference; the specific mechanism of discriminatory action needed to be identified.
Procedural unfairness in student disciplinary decisions sounds in contract, not tort.
http://media.ca1.uscourts.gov/pdf.opinions/16-2290P-01A.pdf
First Circuit: US v. Laureano-Perez
Sentencing judge sufficiently weighed individual concerns, given recitation of deft's age, education, and work history.
Given that the present crime occurred while on supervised release for a drugs offense, no error in drug testing as a release condition.
http://media.ca1.uscourts.gov/pdf.opinions/16-2399P-01A.pdf
Given that the present crime occurred while on supervised release for a drugs offense, no error in drug testing as a release condition.
http://media.ca1.uscourts.gov/pdf.opinions/16-2399P-01A.pdf
First Circuit: US. Robles-Paron
Claim of ineffective assistance and judicial error in sentencing need not be refiled in a collateral proceeding where the government stipulates to the error. Sentence can be vacated and remanded on direct appeal.
Judicial sentencing script sufficiently weighed individual considerations, and did not impermissibly focus on social concerns.
http://media.ca1.uscourts.gov/pdf.opinions/16-2455P-01A.pdf
Judicial sentencing script sufficiently weighed individual considerations, and did not impermissibly focus on social concerns.
http://media.ca1.uscourts.gov/pdf.opinions/16-2455P-01A.pdf
First Circuit: Caraballo-Caraballo v. Administracion de Correccion
When a superseding indictment adds charges arising out the same act, transaction or common scheme, the Sixth Amendment speedy trial clock for the added charges still runs from the initial indictment.
The protections of the Sixth Amendment are generically distinct from Due Process and double jeopardy, and differ from the statutory protections offered under the Speedy Trial Act; the protection therefore arises directly from the Sixth Amendment.
http://media.ca1.uscourts.gov/pdf.opinions/17-1961P-01A.pdf
The protections of the Sixth Amendment are generically distinct from Due Process and double jeopardy, and differ from the statutory protections offered under the Speedy Trial Act; the protection therefore arises directly from the Sixth Amendment.
http://media.ca1.uscourts.gov/pdf.opinions/17-1961P-01A.pdf
Eleventh Circuit: Finest Meridor v. Attorney General
Immigration Judge's finding as to likely future danger was a finding of fact that could only be reviewed for clear error; the agency erred by reversing de novo.
Subsequent statute holding that a certain agency is the only authority to issue a certain visa under that article operates as a context-specific enhancement to an earlier statute authorizing the issuance of the visa by other authorities.
http://media.ca11.uscourts.gov/opinions/pub/files/201514569.pdf
Subsequent statute holding that a certain agency is the only authority to issue a certain visa under that article operates as a context-specific enhancement to an earlier statute authorizing the issuance of the visa by other authorities.
http://media.ca11.uscourts.gov/opinions/pub/files/201514569.pdf
Federal Circuit: PGS Physical v. Iancu
(Reminder: We don't know many things. We especially don't know Patent.)
Agency decision presenting both non-instituted claims and rulings on instituted claims and grounds is sufficiently final for judicial review.
Erroneous non-institution is waiveable, and presents no sua sponte obligation in subsequent judicial review.
(Again, completely guessing here.)
Board decision on motivation to combine prior art was reasonable.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2470.Opinion.6-6-2018.1.pdf
Agency decision presenting both non-instituted claims and rulings on instituted claims and grounds is sufficiently final for judicial review.
Erroneous non-institution is waiveable, and presents no sua sponte obligation in subsequent judicial review.
(Again, completely guessing here.)
Board decision on motivation to combine prior art was reasonable.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2470.Opinion.6-6-2018.1.pdf
Federal Circuit: Martin v. O'Rourke
Although the All Writs Act isn't an independent basis for jurisdiction, Mandamus against unreasonable administrative delay validly runs from the Circuit Courts when necessary to protect their future jurisdiction.
Mandamus against delay by the Dept of Veterans Affairs should be governed not by a finding of the official's refusal to act, but by a common-law balancing test.
Concur: An over five-year appeals process, mostly composed of ministerial tasks and docketing, is excessive. Mandamus is the only viable option.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1747.Opinion.6-5-2018.1.pdf
Mandamus against delay by the Dept of Veterans Affairs should be governed not by a finding of the official's refusal to act, but by a common-law balancing test.
Concur: An over five-year appeals process, mostly composed of ministerial tasks and docketing, is excessive. Mandamus is the only viable option.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1747.Opinion.6-5-2018.1.pdf
Havensight Capital LLC v. Nike Inc.
Appeal of Rule 11 sanctions and dismissal of amended complaint does not not incorporate appeal of post-judgment sanctions orders.
Pending post-judgment motion that can be construed as a challenge to the decision on the merits, when filed before entry of judgment, does not toll the time limit for appeals.
Numerous and voluminous motions justified Rule 11 sanctions.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/15-56607.pdf
Pending post-judgment motion that can be construed as a challenge to the decision on the merits, when filed before entry of judgment, does not toll the time limit for appeals.
Numerous and voluminous motions justified Rule 11 sanctions.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/15-56607.pdf
Ninth Circuit: White v. Square, Inc.
Visiting a website with the intent to use its services and then declining to advance past a user agreement that incorporated an allegedly discriminatory bar on the use of its services constitutes a sufficiently concrete and particularized Article III injury.
Questions certified to California: whether a patron must use a business services to qualify for the statutory antidiscrimination provisions at issue, or if merely presenting themselves is sufficient. Also -- what the internet correlative to this standard might be.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-17137.pdf
Questions certified to California: whether a patron must use a business services to qualify for the statutory antidiscrimination provisions at issue, or if merely presenting themselves is sufficient. Also -- what the internet correlative to this standard might be.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-17137.pdf
Ninth Circuit: Ellis v. Harrison
State court's holding that Habeas petitioner must establish prejudice from his counsel's racial animus by a preponderance was an unreasonable application of federal constitutional law.
To establish prejudice from counsel's racial animus, petitioner must establish either his or her knowledge of the animus at a critical phase of the proceedings, resulting in a communications breakdown, or another adverse effect of the animus.
Concurrence to per curiam: prejudice should be the presumption in strategic decisions once animus is established.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-56188.pdf
To establish prejudice from counsel's racial animus, petitioner must establish either his or her knowledge of the animus at a critical phase of the proceedings, resulting in a communications breakdown, or another adverse effect of the animus.
Concurrence to per curiam: prejudice should be the presumption in strategic decisions once animus is established.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-56188.pdf
Eighth Circuit: Mahn v. Jefferson County
In First Amendment retaliation case, once the plaintiff produces substantive proof from which the finder of fact can infer that the protected conduct was a motivating factor, the full burden of proof to establish a nondiscriminatory motive for the action passes to the deft.
At summary judgment, this nondiscriminatory explanation must be indisputable.
Reinstatement is an equitable remedy permitted against a state official under Ex Parte Young.
Allegations against second official and municipality too speculative to present issue for trial.
http://media.ca8.uscourts.gov/opndir/18/06/161731P.pdf
At summary judgment, this nondiscriminatory explanation must be indisputable.
Reinstatement is an equitable remedy permitted against a state official under Ex Parte Young.
Allegations against second official and municipality too speculative to present issue for trial.
http://media.ca8.uscourts.gov/opndir/18/06/161731P.pdf
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.)
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
Pre-plea disclosure of criminal history did not unfairly prejudice things.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0107p-06.pdf
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
http://www.ca5.uscourts.gov/opinions/pub/17/17-10914-CV0.pdf
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
http://www.ca5.uscourts.gov/opinions/pub/17/17-60515-CV0.pdf
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
Petitioner should have rebutted affidavit timely offered by the state. No sanctions.
http://www.ca5.uscourts.gov/opinions/pub/18/18-10337-CV0.pdf
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/
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
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
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
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
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
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
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
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: 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
"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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.)
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
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
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
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
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
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
http://media.ca8.uscourts.gov/opndir/18/06/171371P.pdf
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
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.]
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
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
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.
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
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
http://www2.ca3.uscourts.gov/opinarch/162939p.pdf
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/
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/
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/
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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/
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/
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
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
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
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
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
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
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
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
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.
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
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
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
Subscribe to:
Posts (Atom)