Sixth Circuit: Ian Davis v. Margaret Bradshaw

Recantation of trial witness insufficiently credible to trigger the actual-innocence exception to the statutory limitation on Habeas petitions.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0172p-06.pdf

End of day

Much more here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes

http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl

https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

https://www.ca10.uscourts.gov/clerk/opinions/daily

http://www.ca11.uscourts.gov/todays-published-opinions

http://www.cafc.uscourts.gov/opinions-orders

Sixth Circuit: Jonathan Gaffers v. Kelly Servs., Inc.

Arbitration agreement is not displaced by the FLSA; a challenge to the agreements on the basis that compelling individual arbitration precludes collective action is a challenge to the purpose of arbitration, and therefore not permissible under the savings clause of the Act.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0170p-06.pdf

Third Circuit: Corey Bland v. City of Newark

Qualified immunity for officers firing into car after car chase, as the chase was dangerous, the driver continued to verbally threaten them, and a recent carjacking had been armed, leading the police to think that the driver was armed.

http://www2.ca3.uscourts.gov/opinarch/172228p.pdf

Second Circuit: Amy Colvin v. Hubert Keen, et. al.

Initial denial of summary judgment not binding under law of the case.  Denial of summary judgment is not an adjudication of rights or liabilities.

http://www.ca2.uscourts.gov/decisions/isysquery/d561ea22-a702-410d-a0e4-6e8d6bef72b9/1/doc/16-3650_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d561ea22-a702-410d-a0e4-6e8d6bef72b9/1/hilite/

First Circuit: Sihotang v. Sessions

Abuse of discretion for agency not to reopen immigration removal proceedings where there is a clear factual basis for a claim of changed country conditions affecting his religion and its required practices.

http://media.ca1.uscourts.gov/pdf.opinions/17-2183P-01A.pdf

First Circuit: US v. Valdes-Ayala

Sufficient evidence for bankruptcy fraud, as the petitions filed were the bare minimum to get the clients released from jail.

Sufficient evidence for wire fraud, as Microsoft has no email servers in Puerto Rico.

Sufficient evidence for identity fraud, as victims testified that they didn't sign many of the documents.

No constructive amendment of indictment alleging defrauding of creditors using the court, as the court filings were identified as the fraudulent element, and the offense was the deception in the filings.

No plain error in not sending the full offense-specific jury instruction into the deliberations room; no plain error in omission of materiality from fraud instruction.

Authorized use of names and power of signature is without lawful authority when used unlawfully.

Plain error in use of superseded sentencing guidelines.

Bankruptcy court is a legitimate recipient of restitution order.

http://media.ca1.uscourts.gov/pdf.opinions/16-1002P-01A.pdf

End of day

Ending today's run in Texas.  The rest of the cases can be found on the half-dozen sites whose many employees do this for a living.  (All of which launched well after us.)

This kind of partial coverage is rare  -- generally, we go all-out or not at all.  Given many demands on time/spirit/coffee budget recently, though, this type of partial coverage will be likely be the rule in the coming weeks. 

Basically, it's batting practice, keeping these skills up while writing a dissertation, etc.  Cheers.

-CB

Fifth Circuit: Malcolm Kelso v. Christine Butler, et al

Although the pragmatic function of a motion for judgment as a matter of law is to allow the opposing party to cure any defects in the case before presented to the finder of fact, the deft here was not prejudiced by the granting of the motion without receiving an opportunity to cure the defect, as no proof would have been possible.

http://www.ca5.uscourts.gov/opinions/pub/15/15-30169-CV0.pdf

Fifth Circuit: 21st Mortgage Corporation v. Kayla Glenn

As the statute directs that the value of the possessions retained by the debtor is the value that a retail merchant could derive from them, delivery and setup costs of a mobile home are not considered part of the value of the retained property.

http://www.ca5.uscourts.gov/opinions/pub/17/17-60533-CV0.pdf

Third Circuit: W.R. Grace & Co. v.

Injunction channelling recoveries in asbestos bankruptcies applies to both named and un-named parties; the injunction does not pre-empt state workman's compensation laws by governing recoveries by workmans comp funds, as it doesn't modify rights or duties under the law.

Test of whether recoveries are governed by the injunction is whether the injury is wholly separate from the asbestos liability.

http://www2.ca3.uscourts.gov/opinarch/171208p.pdf

Third Circuit: Traci Berardelli v. Allied Services Institute

Where the standards of liability of two statutes are substantively identical, administrative regulations enacted for one are due deference in interpreting the other.

Requested accommodation was reasonable as a matter of law -- jury instruction giving plaintiffs the burden to establish reasonability was error.

http://www2.ca3.uscourts.gov/opinarch/171469p.pdf

Second Circuit: D’Addario v. D’Addario, et al.

Although a claimant's claim against the estate is not yet ripe, as its present lack of value might change, a claim based on the claimant's collection expenses is sufficiently final.

Estate, which as a matter of state law is an inchoate entity, can serve as the nexus for a civil RICO association-in-fact.


http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/1/doc/17-1162_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/1/hilite/

Second Circuit: In re: Matthew N. Murray

Creditor seeking to initiate an involuntary bankruptcy must demonstrate prejudice from inadequacy of state legal remedies and that the petition serves the purposes of the Act.

http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/2/doc/17-1272_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/aa7d1353-0417-45d3-8cb2-69fbe6d60e55/2/hilite/

First Circuit: Lemus v. Sessions

Exigent grounds for adjustment of immigration status do not repoen the filing period for the claim.

Sua sponte decisions of whether to open a case are unreviewable absent colorable constitutional or legal claims.

Past agency adjudication holding that the agency would modify procedures where a claimant was prima facie eligible antedates the current rules and does not make the present holding arbitrary and capricious.

http://media.ca1.uscourts.gov/pdf.opinions/17-2068P-01A.pdf

First Circuit: US v. Sosa-Gonzalez

General objection to reasonableness of sentence at trial does not preserve specific procedural sentencing challenges.

Sentence procedurally and substantively reasonable.

http://media.ca1.uscourts.gov/pdf.opinions/17-2005P-01A.pdf

First Circuit: US v. Gierbolini-Rivera

Sentence procedurally and substantively reasonable.

http://media.ca1.uscourts.gov/pdf.opinions/15-2076P-01A.pdf

End of Day. Oddly exhausted.

Also:

http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl

https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

=https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

https://www.ca10.uscourts.gov/clerk/opinions/daily

-CB

Eighth Circuit: BNSF Railway Company v. Seats, Incorporated

State common-law tort action against railway suppliers is not preemepted.

http://media.ca8.uscourts.gov/opndir/18/08/171399P.pdf

Eighth Circuit: Mark Tettey Kom Degbe v. Jefferson B. Sessions, III

Challenge to denial of untimely asylum appeal construed as challenge to decision not to remand.  Insufficient grounds.  Deference to Executive on country conditions.

http://media.ca8.uscourts.gov/opndir/18/08/171338P.pdf

Eighth Circuit: Brian King v. The City of Crestwood, MO

Where plaintiff lacks standing to seek federal review of state court decision on the merits, dismissal under Rooker-Feldman is not mandatory; the case can be dismissed for standing.

Municipal court is not a policymaking authority; the outcome of an adjudication therefore can't give rise to a municipal liability claim under S1983.

http://media.ca8.uscourts.gov/opndir/18/08/164560P.pdf

Eighth Circuit: Charlene Eggers v. Wells Fargo Bank, N.A.

Statistical evidence of disparate impact is required to state a claim that an employer's policy had a disparate impact on older workers so long as the policy is not a sweeping disqualification.

http://media.ca8.uscourts.gov/opndir/18/08/164376P.pdf

Seventh Circuit: David Bishop v. Air Line Pilots Association, I

Allegations that a union privileged a more powerful faction within the union, together with a showing of deceptive actions can state a claim  for breach of the duty of fair representation.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-1438:J:Ripple:aut:T:fnOp:N:2201507:S:0

Seventh Circuit: Straits Financial LLC v. Ten Sleep Cattle Co.

Account guarantee agreement for cattle hedging account void  where plaintiff had no knowledge of the illicit trades being made using it.

Duty to mitigate begins with actual knowledge.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-2100:J:Hamilton:aut:T:fnOp:N:2201302:S:0

Seventh Circuit: Katrina Walker v. Carl Weatherspoon

Uncorroborated tip sufficient for warrant.

Non-jurisdictional cutoff date for appeals waived, since the rules aren't jurisdictional, and  the gov't described the brief as "early"

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-2665:J:Easterbrook:aut:T:fnOp:N:2201016:S:0

Seventh Circuit: Iowna Portalatin v. Blatt, Hasenmiller, Leibsker

Comprehensive settlement agreement reached during trial released claim for statutory damages and fees.

Penalties under the statute are not per deft.


http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-3335:J:Manion:aut:T:fnOp:N:2201522:S:0

Sixth Circuit: Kurt Harrington v. J. Ray Ormond

Habeas challenge arising from Supreme Court holding narrowing the causation element of the offense can proceed to argument on the question of retroactivity absent explicit retroactivity assertion by the Supreme Court where other circuits have recognized the ruling as retroactive.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0165p-06.pdf

Third Circuit: US v. Ronald Peppers

ACCA residual clause minimum Habeas showing is a mere possibility that the sentencing court acted under that section of the law.

Plea deal did not waive Habeas challenge to sentence, so long as the Habeas minimum showing is met, as parties can't stipulate to a sentence in excess of legal limits.

So long as there is a valid petition arising from a Supreme Court holding made retroactive to cases on collateral review, non-retroactive cases decided in the interval can cited to describe the current state of the law.

Under categorical review, state robbery statute isn't a valid predicate; petitioner did not brief whether state burglary statute is covered under the elements clause of the law; challenge to that predicate conviction is therefore waived.

http://www2.ca3.uscourts.gov/opinarch/171029p.pdf

Second Circuit: Jaen v. Sessions

For the purposes of the Immigration Act, a child lawfully born into a lawful marriage is (conclusively) presumed to be the child of both parents.  Parallel holding under state law as alternative ground.

http://www.ca2.uscourts.gov/decisions/isysquery/c47e857f-f701-4ef9-a7f8-4e6809e4f3e8/1/doc/17-1512_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c47e857f-f701-4ef9-a7f8-4e6809e4f3e8/1/hilite/

End of day

See also:

http://www.ca11.uscourts.gov/todays-published-opinions

https://www.cadc.uscourts.gov/internet/opinions.nsf

http://www.cafc.uscourts.gov/opinions-orders

Tenth Circuit: US v. Mann

State assault with bodily injury statute is categorically a predicate crime of violence for the statute, despite the fact that a mens rea of recklessness suffices for conviction, as violence can be reckless.

https://www.ca10.uscourts.gov/opinions/17/17-2117.pdf

Vasquez - Valle v. Jefferson Sessions

State witness tampering statute is not categorically a crime of moral turpitude, since it encompasses a wide range of conduct.  Under modified categorical review, the conviction for knowingly inducing a witness to be absent was not a valid predicate.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/13-74213.pdf

Holzhauer v. Golden Gate Bridge District

Tort liability for joint operation of a vessel is determined proximate to the time of the accident, not through the duration of the voyage.  The boat owner therefore had no duty to supervise the skilled passenger under a duty of joint operation when the latter took the helm, and as there was no duty of care, no question of comparative negligence arises.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/16-15942.pdf

Ninth Circuit: State of Hawaii v. Donald J. Trump

Remand following Certiarori review.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/17-17168.pdf

Eighth Circuit: Hal Stanley v. Katherine Finnegan

Denial of qualified immunity where reasonable suspicion is needed to remove children from the home, and the children were removed despite a plainly exculpatory visit by the agency a short time before.

http://media.ca8.uscourts.gov/opndir/18/08/172702P.pdf

Eighth Circuit: David Faltermeier v. FCA US LLC

Given the complexity of the action and the fact that fees increase with the complexity of the action, no plain error in court's calculation of potential fees for the purpose of determining if the total award was sufficient for removal under the statute.

While state law does not require actual reliance on the misrepresentation, there must be some connection between the representation and the purchase.

http://media.ca8.uscourts.gov/opndir/18/08/172093P.pdf

Eighth Circuit: United States v. Mohamed Farah

No abuse of discretion in denial of last-minute motion for substitute counsel, given that deft had not voiced dissatisfaction with counsel.

Joining insurgency while claiming the defense of innocent civilians does not exculpate from murder by unlawful belligerency, as the latter is a matter of law, and ignorance of law offers no defense.

No procedural error in sentencing where court does not address disparity with co-conspirators, but defts extensively discussed the issue in sentencing memoranda; court is presumed to have reviewed.

Sentencing disparities not substantively unreasonable.

http://media.ca8.uscourts.gov/opndir/18/08/164363P.pdf

Seventh Circuit: Pronschinske Trust Dated March v. Kaw Valley Companies, Inc

A guarantee of a minimum production royalty nested within a provision describing the discretionary commencement of mining operations does not guarantee such a royalty if the party elects not to operate the mine.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-10/C:17-2889:J:Rovner:aut:T:fnOp:N:2200780:S:0

Seventh Circuit: Andrew Schlaf v. Safeguard Property, LLC

A management company that leaves notices on the doors of a residence when mortgage payments fall behind is not an indirect debt collector for the purposes of the statute.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-10/C:17-2811:J:Ripple:aut:T:fnOp:N:2200827:S:0

Seventh Circuit: Alfredo Miranda v. County of Lake

14th Amendment and negligence claims against jail physicians for the self-starvation and dehydration death of a non-citizen arrested for evading jury service present an issue for trial when the jury might reasonably decide that the denial of treatment was objectively unreasonable.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-10/C:17-1603:J:Wood:aut:T:fnOp:N:2200463:S:0

Fifth Circuit: USA v. Florencio Rosales-Mireles

Prudential grant of mutual motion to vacate the sentence and remand for resentencing upon remand from the U.S. Supreme Court.

http://www.ca5.uscourts.gov/opinions/pub/16/16-50151-CR1.pdf

Second Circuit: Trusted Media Brands, Inc. v. United States of America

Tax.  Where one section of a statute grants an extended period of time to do X, and Y is an alternative to X, a reference elsewhere in the law saying that X and Y are governed by the initial provision can simply mean that they are separately governed by it.

(Probably.)

http://www.ca2.uscourts.gov/decisions/isysquery/cb713570-cf6f-478b-a928-4f292687255f/1/doc/17-3733_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cb713570-cf6f-478b-a928-4f292687255f/1/hilite/

First Circuit: Peaje Investments LLC v. PR Highways and Transportation

Corrigendum.

http://media.ca1.uscourts.gov/pdf.opinions/17-2165E-01A.pdf

First Circuit: Torres-Pagan v. Berryhill

Omission of significant medical records can justify remand to the agency for insufficient development of the factual record where the petitioner suffers from cognitive impairment; the claimant does not have to make a showing of discriminatory effect of the omission.

http://media.ca1.uscourts.gov/pdf.opinions/17-2146P-01A.pdf

First Circuit: US v. Harrison

Within-guidelines sentence of lifetime supervised release procedurally and substantively reasonable, where the court specifically indicated an awareness of history and a desire to restrain the defendant.

As there was a plausible sentencing rationale and a defensible result, sentence not substantively unreasonable.

http://media.ca1.uscourts.gov/pdf.opinions/17-2088P-01A.pdf

First Circuit: Puerto Rico Elec. Power Auth. v. Ad Hoc Group-PREPA Bondholders

Corrigendum.

http://media.ca1.uscourts.gov/pdf.opinions/17-2079E-01A.pdf

First Circuit: US v. Reid

Below-guidelines sentence not substantively or procedurally unreasonable; given the deft's objective criminal history, the court did not abuse its discretion by not explicitly comparing the history to mitigating circumstances in the deft's life.

http://media.ca1.uscourts.gov/pdf.opinions/17-2021P-01A.pdf

First Circuit: US v. Perez-Crisostomo

Increase in sentence for Obstruction warranted where deft maintains false name throughout proceedings, and there is some chance that the deception interfered with sentencing.

No plain error in denial of sentence reduction for acceptance of responsibility where, in addition to acquiescing in the sentencing procedures, the deft attempts otherwise to obstruct justice.

http://media.ca1.uscourts.gov/pdf.opinions/17-1914P-01A.pdf

First Circuit: Lassend v. US

Corrigendum.

http://media.ca1.uscourts.gov/pdf.opinions/17-1900E-01A.pdf

First Circuit: Medical Mutual Insurance Co. v. Burka

Given the terms of the policy, the insurer has no duty to defend a physician who allegedly improperly accessed medical records, since the records were not acquired in the course of professional treatment.

http://media.ca1.uscourts.gov/pdf.opinions/17-1872P-01A.pdf

First Circuit: Carlson v. University of New England

Where an employer claims that an allegedly retaliatory transfer was voluntary, misrepresentations made by the employer to the employee must have a non-retaliatory justification in order to prevail at summary judgment.

In order to present an issue for trial, a claim that an annual raise was artificially low must be supported by a benchmark of prior years salary decisions.

http://media.ca1.uscourts.gov/pdf.opinions/17-1792P-01A.pdf

First Circuit: Sexual Minorities Uganda v. Lively

Circuit courts do not have jurisdiction under the direct appeals statute to reform unflattering dicta in the opinion below.

Where diversity jurisdiction is pleaded but conceded during the proceedings to be a fiction, the court has the prudential right to invoke judicial estoppel against an attempt to shift the basis for jurisdiction to diversity of parties.

Where pendent state law claims raise sensitive and undeveloped questions of state law, the court does not abuse its discretion in declining to exercise supplementary jurisdiction and dismissing the pendent claims without prejudice.

Initial motion to dismiss did not ripen into grounds for the judgment, and is therefore unreviewable.

http://media.ca1.uscourts.gov/pdf.opinions/17-1593P-01A.pdf

End of Day

8th and above out of scope.  Slew of  cases out of the 8th today. 

Going to try to work back up to full daily coverage over the next week or so -- seems like a good goal to have. 

-CB

Eighth Circuit: Bruce Munro v. Lucy Activewear, Inc.

Product's name served as a source-identifying device for trademark claim, as the plaintiff is the person who produces things of this name.

Light-based art installation is protected by copyright, not trademark.

No error in denial of leave to amend.

http://media.ca8.uscourts.gov/opndir/18/08/164483P.pdf

Sixth Circuit: Robert Davis v. Detroit Pub. Sch. Cmty. Dist.

Refusal to place ballot issue is not sufficiently concrete or particularized for standing. Placing tax decisions in the hands of the electorate means that redressibility for tax harms is uncertain.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0164p-06.pdf

Fifth Circuit: Stephanie Odle v. Wal-Mart Stores, Incorporated

Dissent from denial: ln the caselaw, where parties voluntarily dismiss the action, the court does not have sufficient authority over the case to consider whether other intervenors should be added.

Statement in support of denial of en banc: Minor exceptions from exigency.


http://www.ca5.uscourts.gov/opinions/pub/16/16-10347.CV1.pdf

Third Circuit: USA v. Chaka Fattah, Sr.

Trial court judge did not abuse discretion in interviewing jurors in the course of deliberations about the conduct of another juror.

No abuse of discretion in dismissal of juror for not deliberating where juror informed courthouse deputy that he intended to hold out "no matter what."

Jury instructions did not comport with Supreme Court holding issued after verdict but before sentencing on the scope of official acts within the bribery statute -- remanded.

Formal proposal for Congress to fund a specific project was a sufficiently official act.

Sufficient evidence for RICO conspiracy convictions.

&c, &c...

http://www2.ca3.uscourts.gov/opinarch/164397p.pdf

Second Circuit: United States v. Alston

Off-duty police officer who carries a weapon at the direction of the police force can still be charged for possessing a weapon in furtherance of the illegal acts, as weapons can be possessed for multiple reasons.

No error in denial of new trial based on the fact that one of the witnesses mis-stated their employment status.

Post-verdict jailhouse infractions of witness do not give rise to a Brady claim.

No error in denial of minor participant sentencing reduction, as the deft's interference with law enforcement allowed criminal conspiracy to proceed; similar logic for obstruction and breach of trust sentencing enhancements.

http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/1/doc/17-2405_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/1/hilite/

Second Circuit: United States of America ex rel. Wood v. Allergan, Inc.

As the statute bars bringing a claim when another claim is pending (even under seal), amendment of claim subsequent to the end of the first-filed suit does not allow the later-filed suit to survive the statutory bar.

http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/doc/17-2191_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/hilite/

Second Circuit: Doe v. JPMorgan Chase Bank, N.A.

Where the federal victim recovery statute looks to state law to determine whether funds are within reach of the statute, a state law determination that electronically transferred funds are reachable only by the entity that transferred the funds to the electronic transfer holding means that the funds cannot be reached by the entity that transferred the funds to the transferring entity, as that would be a transfer in violation of regulations, which is prohibited by another law entirely.

http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/3/doc/17-759_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/3/hilite/

End of day

Fifth and beyond on your own, compadres.

CB

Fourth Circuit: US v. Anthony Burfoot

Sufficient evidence for bribery.  As the scheme, not state law, dictated the timing of tax payments sent online, sufficient evidence for wire fraud counts.

As payments were part of a continuous scheme, counts referencing earliest payments and Hobbs Act violation are not barred by the statute of limitations.

Indictment not amended by court's instruction during deliberations that the amount specified in the count was not an element of the offense.

Statement sufficiently material for the purposes of perjury where it is within the scope of the alleged conspiracy and casts doubt on the veracity of a key witness.

No error of denial of mistrial after speculative characterizations of fraud elicited on direct, given curative instruction and overwhelming amount of other evidence.

No abuse of discretion in barring consideration of newly discovered evidence of a witness' cognitive impairment.

Jury is presumed to follow the judge's instructions, so a five-hour deliberation that acquitted on two of the counts was a valid deliberation.

http://www.ca4.uscourts.gov/opinions/174266.P.pdf

Fourth Circuit: Andrew Shaw v. Jefferson Sessions III

Immigration authority can look through convictions for inchoate offenses to determine if the underlying charged conduct bars withholding of removal.

Statutory list of documents that establish conviction for a predicate offense is not an exhaustive list of the manner in which the predicate offense can be proved.

Administrative challenge that the petitioner's conviction was not established by the statutory list does not appropriately exhaust a claim that the predicate conviction does not justify a withholding of removal.

http://www.ca4.uscourts.gov/opinions/171213.P.pdf

Fourth Circuit: US v. Ancient Coin Collectors Guild

Domestic law implementing treaty that barred, upon request, the sale of ancient coins belonging to other nations properly divided the purposes of the treaty; it was therefore not necessary to prove at trial that the coin had been discovered in the country of the requesting state party, as the implementing law had allowed for administrative designation of classes of coins.

Court did not abuse its authority by requiring that the deft's expert testimony be about the particular coins at issue, rather than old coins generally.

Court did not abuse authority in excluding testimony that the coins had been passed legally from a third state into the US immediately prior to sale.

Where the administrative regulations implementing the domestic law, apparently due to a drafting error, changed the scope of enforcement, a fair notice defense doesn't bar enforcement where all parties seemed to be aware of which items were prohibited under the law.

Discovery properly limited.  Court did not abuse its discretion in striking part of the amended answer that seemed outside of the remand from the court of appeals.

http://www.ca4.uscourts.gov/opinions/171625.P.pdf

Second Circuit: Lucia Lopez Catzin v. Thank You & Good Luck Corp.

Dismissing a long-running action sua sponte due to the fact that only supplemental jurisdiction remains requires, for reasons of basic fairness and reliable decisionmaking,  that the parties receive notice and an opportunity to be heard. 

Court's assertion that the federal claims had been pretextually asserted in order to manufacture jurisdiction required investigation and careful findings.

If the court has found that the supplemental jurisdiction arises from the same case or controversy, the statute requires a explicit selection of one or more of the enumerated statutory reasons for declining to exercise jurisdiction.

http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/doc/17-2497_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/hilite/

Second Circuit: United States v. Baker

Sufficient evidence for conviction where an accomplice testifies to all elements, regardless of credibility issues.  Finder of fact is best positioned to make these determinations.

Post-verdict juror's email does not provide a sufficient basis for questioning the jury, as it does not clearly establish any non-speculative misconduct; discussions among jurors were not necessarily deliberations, and a juror's belief "at first sight" that the deft was guilty is not a sufficiently plain demonstration of racial animus.

http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/doc/16-2895_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/hilite/

First Circuit: Puerto Rico Elec. Power Auth. v. Ad Hoc Group-PREPA Bondholders

In a municipal bankruptcy action, the court can issue relief from the stay for cause.

The Code's grant of exclusive jurisdiction over property does not prevent the Title III court from issuing relief from the stay so that a creditor can appoint a receiver in another forum.

http://media.ca1.uscourts.gov/pdf.opinions/17-2079P-01A.pdf

First Circuit: Peaje Investments LLC v. PR Highways and Transportation

Where plaintiff is asserting a lien interest claimed to be a statutory lien, court can strike claims arising from a lien that was perfected as a secured interest, so long as the claims are revisited if the lien is held to be non-statutory.

The creditor's interest, which arises under a resolution of the public utility authority pursuant to its organic act, is not a statutory lien, as the claim does not originate in an act of the legislature.

http://media.ca1.uscourts.gov/pdf.opinions/17-2165P-01A.pdf

End of Day

And... Last Post.  This Starbucks is determined to close, and is strict (and loud) in its arrest.    Halfway through the Eighth.

TK, possibly:

http://media.ca8.uscourts.gov/opndir/18/08/171931P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171925P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/161847P.pdf

https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

https://www.ca10.uscourts.gov/clerk/opinions/daily

http://www.ca11.uscourts.gov/todays-published-opinions

https://www.cadc.uscourts.gov/internet/opinions.nsf

http://www.cafc.uscourts.gov/opinions-orders

Again, this site is just something that I do for batting practice.  Don't rely, expect, or give credence.

-CB

Eighth Circuit: Landon Michael v. Joshua Trevena

Denial of qualified immunity for warrantless arrest grabbing plaintiff's throat and breaking his arm with a baton, as the cause of the arrest was a nonviolent misdemeanor.  No basis for arrest, since the police officer had already decided that the statement was false, and the false staement statute requires that the statement mislead the police.

Dissent: Arguable probable cause -- might have proved confusing.

http://media.ca8.uscourts.gov/opndir/18/08/171946P.pdf

Eighth Circuit: Daaron McAdoo v. Amy Martin

Statute's requirement of physical injury is a threshold requirement to bar frivolous claims, so causation does not have to be established between the injury and the evil of the statute -- plaintiff can recover for any harms traceable to unconstitutional deliberate indifference so long as there is an injury associated with the claim.

http://media.ca8.uscourts.gov/opndir/18/08/171952P.pdf

Eighth Circuit: Randy Kinder Excavating v. JA Manning Construction Co.

No clear error in holding that general contractor's threatened withholding of payment and interference was the first material breach of agreement with contractor; contractor's continued performance made the termination of the agreement breach, since the fact that the contractor didn't formally challenge a corps of engineers decisions didn't present a per se claim of nonperformance. Damages reasonable.

http://media.ca8.uscourts.gov/opndir/18/08/172886P.pdf

Sixth Circuit: Jamal Thomas v. George Stephenson

Ambiguity in state statute of Assault with Intent to Kill that seems to allow conviction for uncharged conduct, i.e., a potential future deadly assault rather than the charged non-deadly assault is, at most, an error of state law that does not rise to the level of a constitutional violation.

Dissent: Licit conviction for a crime that the deft did not commit rises to the level of extreme malfunction of the state criminal justice system.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0161p-06.pdf

Sixth Circuit: Auburn Sales, Inc. v. Cypros Trading & Shipping, Inc.

State tortious interference claim requires the specific intent to interfere with the business relationship.

Even for a requirement or output contract, state statute of frauds requires a writing enforceable against the deft for any claim arising from the transaction.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0162p-06.pdf

Sixth Circuit: EEOC v. Dolgencorp, LLC

Plaintiff gains the benefit of a longer statute of limitations on the federal claim by filing a state claim alleging discrimination, but not necessarily discrimination under the same theory as the federal claim.

Denial of request for a reasonable accommodation sufficed for discrimination -- plaintiff had no duty to request alternate accommodations.

Award of fees correct.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0163p-06.pdf

Fifth Circuit: Hebbronville Lone Star Rentals, et al v. Sunbelt R

Arbitrators reformation of agreement for mutual mistake exceeded the bounds of its power, as the purchase agreement limited the scope of arbitration to calculation of specific sums, and the letter of engagement's reference to threshold levels did not empower the arbitrator to revisit the agreement that set the levels.

http://www.ca5.uscourts.gov/opinions/pub/17/17-50613-CV0.pdf

Third Circuit: USA v. Dominique Johnson

No plain error in the fact that the jury didn't decide the question of whether the weapon was brandished, an element of the increased sentence, since no reasonable finder of fact could have decided otherwise.

On remand from the Supreme Court, deft can raise claims arising from cases decided during the pendency of the direct appeal.

State crime of unarmed bank robbery is categorically a predicate crime of violence.

Although jury was erroneously instructed that accomplice liability attached for brandishing a firearm if the deft was aware of it at the time that it happened, error is insufficiently plain to justify reversal.

Where a deft is not advised that the later counseled brief supersedes the earlier pro se filing, the court can equitably consider arguments raised in the earlier filing.

Although a predicate was double-counted in the indictment, insufficiently plain error, as other predicate counts resulted in convictions.

Other challenges -- 10th Amendment, Commerce clause - sufficient evidence.

http://www2.ca3.uscourts.gov/opinarch/111615p.pdf

Third Circuit: Reading Health System v. Bear Stearns Co Inc.

As the claim for arbitration as a matter of right arises from the rules and not from the broker-dealer contract, the forum selection clause in the broker-dealer contract does not prevent a court of a different forum from determining the threshold question of the right to arbitration.

Forum selection clause in the contract does not implicitly waive the right to arbitration, as absent an explicit waiver in the contract, the presumption for arbitration and the enacted regulatory scheme favor the right.

http://www2.ca3.uscourts.gov/opinarch/164234p.pdf

Third Circuit: Thomas St. Pierre v. Retrieval Masters Creditors Bureau

Disclosure of account information through mailing envelope window is a sufficiently concrete and particular intangible harm for standing.

Although incurring highway tolls was a consensual transaction, the primary purpose was not personal or household benefit, as the benefit provided by tolls is the maintenance of the roads.  The debt therefore does not qualify under the Act.

http://www2.ca3.uscourts.gov/opinarch/171731p.pdf

Third Circuit: James Tepper v. Amos Financial LLC

A debt collector is covered by the Act if their principal purpose is the collection of the debt; the fact that they are also the creditor does not preclude a finding that debt collection is the primary purpose of the organization.

http://www2.ca3.uscourts.gov/opinarch/172851p.pdf

End of day.

The day's saga ends halfway through the Fifth. 

To paraphrase Toscanini: "Here, the Starbucks closed."

-CB

Fifth Circuit: City of Pontiac Gen Empl Retmn v. Vinit Asar, et al.

Statement admitted into evidence from the company's Audit Commission report was not impermissible group pleading, as it was admitted not for the statements asserted, but rather to establish what the committee members knew.

 Statements by corporate leadership don't establish a strong inference of scienter, as the allegations do not set out the precise statements, and there is no indication that the fraud went from the top down, as opposed to from the bottom up.

Audit committee's description of historical accounting practices raises sufficiently strong inference of scienter as to accounting leaderships' role in improperly enhancing financials reporting.

Sarbanes-Oxley filings evince improprieties, but none so glaring that being unaware of them would amount to reckless behavior.

&c, &c.

http://www.ca5.uscourts.gov/opinions/pub/17/17-50162-CV0.pdf

Fifth Circuit: USA v. Ezell Brown, Jr.

Common-law rule holding that the place where the lender received he false statement establishes venue is inconsistent with the rule that the location of the crime is to be determined by the nature of the crime and the location of the acts.

Where the indictment alleges fraud in the supporting documents and the theory of the case becomes fraud in the application itself, there is no constructive amendment, since the offense as alleged included fraudulent verification of supporting documents at closing.

There is no requirement to establish that the fraudulent statement affected the lending decision; rather, it need only have a natural tendency to influence such a decision.

Reference in closing to truth-seeking role of the finder of fact did not dilute the required standard of proof.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40740-CR0.pdf

Fourth Circuit: Sierra Club v. National Park Service

As claim arises under 2005 amendment, state statute of limitations isn't borrowed; general four-year federal rule applies.

Agency cannot claim lack of time as a basis for holding that numerical take limits are impractical.

Vague and unenforceable take limits were arbitrary and capricious.

http://www.ca4.uscourts.gov/opinions/181082.P.pdf

Third Circuit: USA v. Roy Green

Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague did not announce a new constitutional rule that would justify the appeal of sentences under any compulsory residual sentencing scheme; this is established in part by the subsequent holding of the Court that advisory residual sentencing schemes are not unconstitutionally vague. Circuit split flagged.

http://www2.ca3.uscourts.gov/opinarch/172906p.pdf

Second Circuit: United States v. Sampson

As the embezzlement statute requires conversion with intent, summary judgment for the deft based on the statute of limitations was error -- the intent to deprive can arise after the inappropriate withholding.  Discovery under the FRCrimPro does not require the government to make a proffer of when such intent arises.

Claims about the theory of the made during liminal proceedings do not estop the government's right to make other assertions at trial.  Theory of indictment claiming that the statewide state supreme court was a single agency is sufficiently supported by state court rulings and the state constitution.  Where the appointment as referee has no firm ending date, whether the deft was acting in that capacity presents a question for trial.

http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/3/doc/15-2869_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/3/hilite/

Second Circuit: Anderson News, L.L.C. v. American Media, Inc.

Publishers' refusals to deal with middleman distributor were insufficiently close in time to be parallel conduct; statements seeming to indicate a common plan are susceptible of more innocent readings.  As a matter of law, finder of fact could not have found beyond a reasonable doubt that the economically implausible refusal to deal had been established by the evidence.

http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/doc/15-2714_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/hilite/

First Circuit: US v. Sirois

There is not sufficient binding precedent to clearly establish that revocation of supervised release because of drug use violates the Eighth Amendment; revocation was therefore not plain error.

http://media.ca1.uscourts.gov/pdf.opinions/17-1797P-01A.pdf

First Circuit: Del Grosso v. Surface Transportation Board

Sufficient evidence for Board finding that packing process is part of the transportation process.

Board's decision that removal of damaged elements of fungible bulk cargo was a part of the transportation process was not arbitrary or capricious.

http://media.ca1.uscourts.gov/pdf.opinions/17-1794P-01A.pdf

First Circuit: US v. Acevedo-Hernandez

Sufficient evidence for conspiracy.

In case of alleged judicial bribery, referring to the injustice of the underlying proceeding in opening and closing statements of the bribery trial would not be sufficiently plain error to justify reversal.

Even if evidence was more prejudical than probative, harmless error, given the weight of the evidence.

As co-conspirator would have been subject to a wide variety of challenges on cross-examination, court's granting of 5th amendment privilege as to questions that did not directly jeopardize the co-deft was not a violation of the Sixth Amendment right to compulsory process.

Any sentencing errors harmless.  No cumulative error.

http://media.ca1.uscourts.gov/pdf.opinions/15-1763P-01A.pdf

Brief hiatus

Conference paper, dissertation, philosophical thinkin' to be done.  Busy, back soon.

-CB

((pause))

Eighth and westward (then southeastward) tomorrow.  Other work beckons threateningly.

-CB

Seventh Circuit: Kelly Chavez v. Nancy Berryhill

When a SSA ALJ accepts an estimate of available employment opportunities that relies on an extrapolation of known data across an entire market or geographical area without sufficient indicia of the extrapolation's reasoning, he or she impermissably shifts the burden of proof to the claimant, resulting in a determination that is not supported by substantial evidence.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-18/C:17-2978:J:Scudder:aut:T:fnOp:N:2188695:S:0

Sixth Circuit: Liz Lopez Moreno v. Jason Zank

When a parent allegedly wrongfully removes a child from a country after the allegedly wrongful removal of the child to that country by the other parent, given the purposes of the Convention, the first parent is precluded from asserting that the residence of the child in the country to which it had been removed at first was not their habitual residence; to preserve future claims under the Convention, the Convention  remedy must be invoked, as opposed to self-help.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0147p-06.pdf

Sixth Circuit: United States v. Rashad Woodside

Remand for recalculation of drug amounts was a limited remand that did not require a new hearing, and was appropriately resolved by amending the opinion; deft's presence at earlier sentencing satisfied the statute.  Amounts appropriately calculated by a preponderance.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0146p-06.pdf

Sixth Circuit: Linda Isaacs v. DBI-ASG Coinvestor Fund, III, LLC

Federal court cannot revisit state court foreclosure ruling holding that a facially problematic lien in fact attached, since vindicating the lien isn't barred by the shield of bankruptcy discharge; the discharge only protects from claims against the person.  Further, Rooker-Feldman prohibits lower federal courts from hearing a state-adjudicated claim even where there is explicit statutory jurisdiction.

As state law holds that a mortgage is valid even absent perfection, a claim that the lien was perfected in violation of the stay can provide grounds for subsequent avoidance, since a federal court's determination that the interest wasn't perfected does not contradict the state court's holding that the mortgage was valid.

Statutorily, the second trustee acquired the necessary powers; equitably, the debtor's ex post acquisition of the derivative powers of the second trustee was an appropriate flexible remedy.

Amicus had another idea, but the parties didn't raise it, so it wasn't considered.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0145p-06.pdf

Third Circuit: Lea Augustin v. City of Philadelphia

Property owners have sufficient interest upon which a due process claim can arise when a municipality files a perfected utility lien against the property, as it can cloud the title and complicate the property's use and value.

As a matter of law, the minimal deprivation of property rights imposed by the lien, the relative lack of difficulty in correcting errors or monitoring third-party compliance, and the value of the gas provided satisfy the due process interests of the landlords.

http://www2.ca3.uscourts.gov/opinarch/171216p.pdf

Second Circuit: Huebner, et al. v. Midland Credit Mgmt., et al.

So long as the questions are not misleading or abusive, the Act permits a spoken inquiry as to the reason for disputing a debt.

Given the specificity of the first claim in the trial management phase, court did not abuse discretion for imposing procedural sanctions when it proved false.

No abuse of discretion in, prior to imposing sanction, not allowing amendment of filing that violated confidentiality order.

Sanctions for vexatious litigation did not abuse discretion; ordering payment of opponent's fees for motion that was only partially granted was within the court's discretion.

Sanctions under the Act and the court's inherent authority were appropriate.

http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/doc/16-2363_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/hilite/

Second Circuit: United States v. Smith

Amended.

http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/2/doc/15-3313_amd_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/2/hilite/

First Circuit: Doe v. Brown University

Allegation of assault against a student at one university by students at a second university does not state a Title IX claim against the second university where the alleged victim has not and does not intend to avail himself or herself of the educational programs and services of the second university.

http://media.ca1.uscourts.gov/pdf.opinions/17-1941P-01A.pdf