Eighth Circuit: United States v. Dante Benson-Henry


Social media posts showing person possessing firearm, one of which was in front of deft's garage, suffice to sufficiently establish felony possession for purposes of parole revocation and subsequent sentence.

Sentence substantively reasonable given public safety and substance abuse treatment needs.





Eighth Circuit: United States v. Kenton Eagle Chasing



Collateral challenge to federal jurisdiction for original crime cannot be made when appealing revocation of supervised release, as there is a separate statutory basis for revocation proceedings.

No Sixth Amendment right to jury trial in parole revocation proceedings, given circuit precedent to contrary.

Court's spoken opinions during revocation proceedings did not sufficiently demonstrate deep-seated antagonism.

No abuse of discretion in court's finding that escape from designated residence was excessive, if necessary.

Tribal police car without other markings was sufficiently marked by the emergency light to fall within the statute, alternately, harmless error.

Previous waiver of challenge to PSR elements permitted court to consider them, though disputed at revocation hearing.

Sentence substantively reasonable.







Seventh Circuit: USA v. Nehemiah Felders



No plain error in District Court holding that officer testimony that deft was read Miranda rights from state-issued card that might or might not have been sufficient, since deft has burden in plain error review, and record is silent as to contents of card.



Seventh Circuit: Rae McCann v. Badger Mining Corporation


Claim of factual error insufficient for finding of pretextual justification of employment decision where facts do not indicate that employer had knowledge of the facts.

Employer's agreement to transfer request does not raise material fact regarding veracity of employer's reservations.

Given breadth of workforce reduction insufficient showing of suspicious timing.

Emails evincing employer's knowledge of disability insufficient to establish animus.



Sixth Circuit: S. Jones v. City of Detroit, Mich.


Qualified Immunity for S1983 claim alleging transportation of wheelchair-bound arrestee in cargo van with insufficient restraints and headroom.

Dissent: General right of nonviolent arrestee to be free from intentional acts causing pain and dangerous situations sufficient to establish the right -- granular precedent describing wheelchairs in cargo vans is not required.





Sixth Circuit: United States v. Joseph Taylor, III


Probation Officers were not required to inform probationer of right to refuse consent to search of closed spaces.  Consent was valid, not a mere acquiescence to authority.

No clear error in District Court's finding that probation officers' testimony of spoken acquiescence was sufficient and credible as unequivocal, free and voluntary.

Later spoken permission to search house sufficient to encompass crawlspaces.

Consent to later police search was valid despite lack of proof that deft knew that he could refuse.











SIxth Circuit: United States v. Michael Stephens



Vacate and remand, given recent circuit precedent holding that Attempt is not a valid predicate for ACCA sentencing bump.



Sixth Circuit: United States v. Jonathan Shelton


Police testimony of confirming field test, and sufficient officer expertise establish the reasonableness of traffic stop for tinted windows in the process of investigating possible firearms violation -- photographs of the windows need not be introduced in evidence.





Fifth Circuit: USA v. Robert Brandon

As deft took affirmative steps to conceal possession of firearm, court's acceptance of guilty plea without colloquy or finding on scienter to establish that deft knew that his previous conviction would prohibit possession was not plain error.

Fifth Circuit: USA v. Chia Lee, et al


Sufficient evidence, given facts.

Where deft lives in a certain judicial district and has a bank in that district, jury might have legitimately found that venue was proper in conspiracy in prosecution; vicinage concerns are not implicated where deft lives in the district.

Jury sending note to judge during proceedings asking for clarification of charges is insufficient to establish improper deliberations where individually interviewed jurors claim that discussion of the merits had not occurred.

Govt experts general statements based on small fraction of files reviewed were harmless error.

Although instruction on deliberate ignorance was an abuse of discretion given lack of purposeful contrivance, inclusion was harmless error.

No clear error where sentencing report estimates drug quantities without a showing on the percentage of lawful prescriptions.

No plain error where conflicting findings would result from using the totality of either of the two versions of the Guidelines, rather than the combination of the two elected by the sentencing court.

Firearm in adjoining office sufficient for sentencing bump where prescriptions were written in an examination room.



Fifth Circuit: USA v. James Perryman


Commerce Clause sufficient justification for law barring convicted felon's possession of weapon that at some point previous travelled in interstate commerce; present interstate travel need not be established.

PSR's unsworn statements describing previous proceeding are sufficient to establish perjury for the purpose of sentencing bump where the court also adopts an addendum that contains the relevant record excerpts.


Fourth Circuit: Nathaniel Hicks v. Gerald Ferreyra


Claim that S1983 action against Park Service police for unlawfully detaining a Secret Service agent constitutes an impermissible extension of Bivvens is waived for not being raised below; District Court was not obliged to independently assure itself of the remedy's availability, and the scope of the Bivvens remedy is not a jurisdictional question.

Appeal citing deposition testimony contrary to the reading of the facts in the decision below is not a matter for interlocutory review.

Fourth Circuit: US v. Daryl Bank


Explicit waiver of Double Jeopardy rights in agency civil proceeding does not bar current challenge, since agreement did not reference future or criminal proceedings, and agency's equitable remedy was not yet considered a criminal punishment.

Although disgorgement is meant as a punitive measure for behaviour that violates the public law, the determination that the criminal statutes of limitations apply is an insufficiently clear rule to establish that the penalty is sufficiently criminal in nature to justify a double jeopardy claim, in that the legislature clearly intended a civil equitable remedy when it empowered the agency to seek it.



Third Circuit: Christina Williams v. Medley Opportunity Fund II, LP


Reference to delegation clause in challenge to validity of an arbitration agreement is sufficient to merit review of the validity of the clause, even where the agreement elsewhere specifies that the enforceability of the agreement is a matter for arbitration.

Where parties do not provide court with the substance of the Tribal law selected by the agreement's choice of law provision, the law of the forum is used to assess which statutory claims might be raised against the agreement.

Choice of law terms in an arbitration agreement do not necessarily expand the range of claims that can be raised under the arbitrability sections of the agreement.

Where an arbitration agreement clearly waives federal rights, it need not explicitly do so to be an impermissible prospective waiver for reasons of public policy.

Waiver sufficiently central to the arbitration process to strike the entire agreement.

Second Circuit: United States v. Muzio


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

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

Second Circuit: La Liberte v. Reid


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

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

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

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










Hiatus

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

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

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

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

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

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

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

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

-CB

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

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0214p-06.pdf

Sixth Circuit: Ky. Waterways Alliance v. Kentucky Util. Co.

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

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

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




Third Circuit: Holly Judge v. Shikellamy School District


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

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


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


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

Third Circuit: USA v. Reynaldo Rivera-Cruz


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

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


DC Circuit: Blogger: ANR Storage Company v. FERC

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

https://www.cadc.uscourts.gov/internet/opinions.nsf/9E0C54378AB5C5A18525830F004E9C61/$file/16-1285-1751902.pdf

Eleventh Circuit: USA v. Jason Alexander Phifer

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

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


Tenth Circuit: Anderson Living Trust v. WPX Energy Production

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

https://www.ca10.uscourts.gov/opinions/17/17-2029.pdf

Ninth Circuit: Tin Cup LLC v. Corps of Engineers

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

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





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

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

http://media.ca8.uscourts.gov/opndir/18/09/172326P.pdf

Seventh Circuit: Kevin Czech v. Michael Melvin

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

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

Sixth Circuit: Ahmad Issa v. Margaret Bradshaw

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0212p-06.pdf

Third Circuit: USA v. Keonna Thomas

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

http://www2.ca3.uscourts.gov/opinarch/172644p.pdf

Third Circuit: Troy Reese v. Warden Philadelphia FDC

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

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


4th Circuit

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

-CB

    Other cases:

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

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

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

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

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

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

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

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

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

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


    -CB

    Sixth Circuit: United States v. Erik McCoy

    The facts that the deft was regularly selling drugs, and that he was apprehended in possession of a large amount of drugs while at work provided sufficient explanation in the warrant's affidavit for a search of the apartment that he shared with another employee to be permissible under the good faith exception.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0209p-06.pdf

    .

    Third Circuit: In Re Hertz Global Holdings Inc.

    Executive resignations, poor results, cavalier tone, and insider trading during the turmoil raise an inference of scienter, but not a strong one, and therefore do not state a claim.

    http://www2.ca3.uscourts.gov/opinarch/172200p.pdf

    Third Circuit: Carol Walker v. Brian Coffey

    Production of work emails by a public university in response to a facially infirm subpoena did not violate a clearly established constitutional right, as there was no legitimate expectation of privacy in emails which an employer could freely disclose.  Dismissal without prejudice to allow a refiling for statutory claims.

    http://www2.ca3.uscourts.gov/opinarch/172172p.pdf

    Second Circuit: United States v. Lobo

    Witness assertion, when credited, suffices to establish that drugs made it to US markets.

    Aggravating role sentence increase upheld.

    "http://www.ca2.uscourts.gov/decisions/isysquery/1aad3dd4-e94a-4e4b-a3b1-6cd4b00c0df9/1/doc/17-2894_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1aad3dd4-e94a-4e4b-a3b1-6cd4b00c0df9/1/hilite/

    First Circuit: US v. Vallellanes-Rosa

    As the court was not compelled to vary downward for the federal carjacking count, the sentence was substantively reasonable; as the relevant factors were mentioned during the sentencing, the sentence was procedurally reasonable.

    http://media.ca1.uscourts.gov/pdf.opinions/17-1541P-01A.pdf

    Other precedential cases from today

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0208p-06.pdf

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-19/C:17-1080:J:Sykes:aut:T:fnOp:N:2220907:S:0

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/14-71768.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/12-55911.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/16-73801.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201713611.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1101.Opinion.9-19-2018.pdf

    -CB

    Sixth Circuit: Jesse Busk v. Integrity Staffing Solutions

    Door to door utility canvassers are subject to the travelling salesman exception to the statute, since although the utility has the final power to ratify the sale or not , gaining the consent of the customer is the work of the salesman.

    Although the portal-to-portal act puts some security screening time outside the Labor act's compensation mechanism, state law might cover the claim, since state law does not mimic the exception, and work need not involve exertion.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0207p-06.pdf

    Second Circuit: Kevin Flood, et al. v. Just Energy Marketing Group, et al.

    To qualify for the Travelling Salesman exception to the Act, the  work of the employee must be closing sales.   The fact that the company could ultimately decline to ratify the deal and proceed with the transaction is irrelevant to this consideration, as the salesman's task is to get the customer's consent to the transaction.

    Court did not err or abuse discretion in refusing offensive collateral estoppel against the insurer for litigating the opposite view in another form, as the two contract interpretations are not precisely identical, and not all claims have yet been litigated to their conclusion. 

    http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/3/doc/17-546_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/3/hilite/                                                                                  

    Second Circuit: Munoz-Gonzalez, et al. v. D.L.C. Limousine Serv.

    From the plain meaning of the statute, black cars are taxis.

    http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/2/doc/17-2438_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/2/hilite/

    Second Circuit: Hartford Roman Catholic Diocesan Corp. v. Interstate Fire & Cas. Co.

    The term "occurrence" in the policy generally signifies an unexpected event; under state law, except for some strict liability events, the test is actual subjective expectation, not that which a reasonable person would expect.

    The challenging of claims by the insurer did not violate state trade practice laws. 

    http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/1/doc/16-2999_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/1/hilite/


    Others

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0205p-06.pdf

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0206p-06.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/18/17-30061.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/18/16-50439.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/18/16-17347.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/18/15-15791.pdf

    https://www.ca10.uscourts.gov/opinions/17/17-3119.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201710189.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201710189.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201712091.pdf

    https://www.cadc.uscourts.gov/internet/opinions.nsf/8AE80A6C0FBDFB7B8525830C004D863A/$file/16-1159-1751123.pdf

    Fifth Circuit: George Alvarez v. City of Brownsville

    Insufficient connection between municipality's policies and the withholding of the evidence in this case; placing sole discretion in a single officer does not amount to deliberate indifference, and the officer's conduct was no worse than negligent.

    Deft did not have a constitutional right to pre-plea-deal disclosure of exculpatory evidence in the possession of the government.  

    Concurrence: Federal District Court had obligation to allow challenges to potentially doctored pieces of evidence.

    Concurrence: Brady is a trial right, waiveable at plea stage.

    Dissent: Constitutional right.


    Third Circuit: K. D. v. Downingtown Area School District

    Student's free and appropriate public education was sufficient, since the student made reasonable progress, and there is no requirement that educational goals for disabled students ensure that they advance normally with their age cohort.

    http://www2.ca3.uscourts.gov/opinarch/173065p.pdf

    Second Circuit: United States of America v. St. Juste (Paul)

    Since the videotape of crime leaves no doubt as to what occurred, error for sentencing court to have held that the deft restrained the victims during the commission  of the crime.

    http://www.ca2.uscourts.gov/decisions/isysquery/ebd08708-88fc-4318-b2eb-94e7493863f0/2/doc/17-2702_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ebd08708-88fc-4318-b2eb-94e7493863f0/2/hilite/

    Second Circuit: United States v. Washington

    Consent to polygraph testing as a condition of supervised release is onerous and not invariably part of similar sentences; the addition of the requirement in the written sentence after omitting it in the spoken sentence was therefore an impermissible modification. 

    http://www.ca2.uscourts.gov/decisions/isysquery/ebd08708-88fc-4318-b2eb-94e7493863f0/1/doc/17-2841_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ebd08708-88fc-4318-b2eb-94e7493863f0/1/hilite/

    First Circuit: US v. Pineda Mateo

    In conspiracy prosecutions, the government cannot compel the testimony of a co-conspirator spouse.

    http://media.ca1.uscourts.gov/pdf.opinions/17-1857P-01A.pdf

    First Circuit: US v. Garcia-Ortiz (Corr.)

    On page 17, line 4, the word "concurrent" is replaced with "consecutive." 

    http://media.ca1.uscourts.gov/pdf.opinions/16-1405E-01A.pdf

    Federal Circuit: Dupont v. Synvina

    A party asserting right of statutory appeal from the patent board doesn't have to establish specific threat of infringement litigation; rather, for standing, a party must establish a controversy of sufficient immediacy and reality.  A competitor's concrete plans for present and future activity that presents a risk of infringement suffice to establish standing.

    Given range disclosed in prior art, presumption of obviousness insufficiently rebutted.

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1977.Opinion.9-17-2018.pdf






    Tenth Circuit: Smith v. Aldridge

    State habeas determination that a judge's statement claiming that the jury was zealously watched was more credible than five juror affidavits asserting the jurors slept during the trial was not an unreasonable determination of the facts.

    https://www.ca10.uscourts.gov/opinions/17/17-6149.pdf

    Ninth Circuit: Nunies v. HIE Holdings

    Under the discrimination statute, the minor nature of an actual or perceived injury is an affirmative defense, and the burden to establish this subjective belief or actual condition is on the employer.

    Plaintiff employee's claim that work was impossible with the injury sufficed to establish that a major life activity was impossible with the injury.

    State statute's assertion that it is the sole remedy does not foreclose a claim under federal law.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/17/16-16494.pdf


    Casey Taylor v. Burlington North R.R.

    Certified question & bench memo.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/17/16-35205.pdf




    Seventh Circuit: Patrick Hrobowski v. USA

    As petitioner was sentenced according to four predicate offenses, two of which were facially infirm, a subsequent change in the law enabling a challenge to the other two predicates that was ultimately successful as to one of them does not allow a late challenge to the two infirm predicates.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-17/C:16-3549:J:Kanne:aut:T:fnOp:N:2219599:S:0

    Seventh Circuit: Raul Perez-Gonzalez v. Jacqueline Lashbrook

    State habeas determination that petitioner's plea deal did not implicitly waive the state's power to seek contempt sanctions for noncompliance was not an unreasonable determination of the facts or application of facts to law.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-17/C:18-1480:J:Brennan:aut:T:fnOp:N:2219305:S:0

    Sixth Circuit: United States v. Joshua Pyles

    As the arrest warrant for the owner of the car would have justified the stop if there had been a reasonable probability that she was in the car, police officer's initial statement that one passenger's gender was not clear suffices; later testimony that the officer believed all the passengers to be men is not sufficient contradiction to discount the narrative.

    Sentencing court's taciturnity as to mental health factors did not rise to the level of procedural error.

    Upward variance for criminal history was not an abuse of discretion.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0204p-06.pdf

    Sixth Circuit: United States v. Tyrone Christian

    En banc order.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0203p-06.pdf

    Fifth Circuit: Angela Roberson-King v. State of LA Workforce Cmsn

    State law claim must be brought under the law granting the specific cause of action, as opposed to the more procedurally lenient general tort recovery statute.

    Discrimination claim under the federal statute does not present an issue for trial when the candidate who actually got the promotion and the plaintiff are equally qualified; the business judgment of the employer is a sufficiently non-pretextual race-neutral justification.

    http://www.ca5.uscourts.gov/opinions/pub/17/17-30899-CV0.pdf

    First Circuit: US v. Russell

    Where a juror omits information on a written questionnaire, and that information presents a valid basis for challenge for cause, waiver is not presumed when counsel do not question the unfinished written reply at voir dire; the juror misconduct is structural error when it results in the vote of a single potentially biased juror.

    Juror's lack of disclosure of de minimis contact with witness whose credibility was not at issue was sufficiently investigated by a single consultation with witness; the juror did not have to be recalled.

    Drug quantities appropriately established by amounts of fertilizer purchases.

    Potential juror's dozing off was sufficient neutral reason to avoid Batson challenge.

    Preemptively testifying to prior convictions on direct waives appeal against admission of the convictions.

    Potentially improper statements in prosecution's closing were isolated and minor comments in a much larger web of evidence.

    http://media.ca1.uscourts.gov/pdf.opinions/16-2386P-01A.pdf


    First Circuit: US v. Garcia-Ortiz

    As there is no realistically probable scenario in which Hobbs Act robbery could be accomplished without the use or threatened use of force, the offense is a valid predicate.

    Harmless error on not revisiting sentence after revision to guidelines during pendency of appeal; original sentencing court understood its discretion to have terms run concurrently or in sequence.

    http://media.ca1.uscourts.gov/pdf.opinions/16-1405P-01A.pdf

    The rest of the story

    Today's other precedential opinions.  (NB 3rd's website a bit flaky today on the chromebook)

    http://www.ca5.uscourts.gov/opinions/pub/17/17-40796-CV0.pdf

    http://www.ca5.uscourts.gov/opinions/pub/16/16-60515-CV0.pdf

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:18-1060:J:Manion:aut:T:fnOp:N:2218850:S:0

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3216:J:Manion:aut:T:fnOp:N:2218849:S:0

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3080:J:Hamilton:aut:T:fnOp:N:2218677:S:0

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-3080:J:Easterbrook:dis:T:fnOp:N:2218677:S:0

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-14/C:17-1631:J:Rovner:aut:T:fnOp:N:2218685:S:0

    http://media.ca8.uscourts.gov/opndir/18/09/171135P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/171677P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/172231P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/172232P.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/172399P.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/15-71666.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-15303.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-35742.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-35753.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-50413.pdf

    -CB

    Fifth Circuit: USA v. Christopher Vialva

    A broad-based challenge to the integrity of the proceedings due to the incapacity of the judge is properly construed as a successive habeas filing rather than a motion to revisit the verdict, as the challenge doesn't arise from a cognizable procedural flaw in the earlier state trial, direct appeal or collateral proceedings.  Where the impacts of the alleged incapacity have already been litigated, permission to file for te writ is appropriately denied.


    http://www.ca5.uscourts.gov/opinions/pub/18/18-70008-CV0.pdf



    Second Circuit: Cappetta v. Comm’r of Soc. Sec. Admin.

    Deference to agency determination that reporting work activity is material; although the consideration is not dispositive of a benefits fraud claim, it does speak to some elements of the determination.

    Agency retained the power to reverse the ALJ's finding.

    Although the law only penalizes omissions, agency could charge benefits recipient with non-reporting on a monthly basis, since the statute also bars withholding required disclosures.

    etc, etc...

    http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/3/doc/16-3540_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/3/hilite/


    Second Circuit: United States v. Spoor

    The obscene nature of a film is objectively determined by the film's content; the intention of the creator is considered only as an element of the analysis.

    No constructive amendment in shifting dates in facts alleged.

    Past bad acts appropriately admitted, as the court was careful to remove the more inflammatory bits.

    Within-guidelines 360 month sentence substantively reasonable.

    http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/2/doc/16-2972_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/2/hilite/

    Second Circuit: In re: DeRogatis

    Administrator's denial of full survivorship benefits was congruent with plan and statute, but the misstatements by plan employees, when speaking on behalf of the administrator, are subject to a fiduciary duty to the recipients, and the finder of fact may determine that an equitable remedy is in order.

    http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/1/doc/16-977_16-3549_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e79595db-c3ea-48e1-95ea-ab87f17d70cb/1/hilite/


    First Circuit: US v. Brake

    Although the two sentencing bumps both arise from the possession of the stolen weapon during the crime, one refers to the theft of the weapon, and one refers to the probable use of the weapon.  Absent legislative guidance against double-counting, both may be applied.

    http://media.ca1.uscourts.gov/pdf.opinions/17-1978P-01A.pdf

    First Circuit: Bonilla-Ramirez v. MVM, Inc.

    In establishing similarly-situated comparators for a disparate treatment claim based in misbehavior, the misbehavior of the comparators must be proved.

    Retribution claim must be proven beyond proximity in time.

    http://media.ca1.uscourts.gov/pdf.opinions/17-1512P-01A.pdf

    First Circuit: Nat'l Fed'n of the Blind v. Container Store, Inc.

    Blind in-store customers cannot be charged with actual or constructive notice of arbitration provision in retail loyalty club agreement shown on computer display at time of enrollment; the agreement, as it happens, was also illusory, as the store retained untramelled powers to modify the agreement.

    http://media.ca1.uscourts.gov/pdf.opinions/16-2112P-01A.pdf

    First Circuit: US v. Cruz-Rivera

    Statute is a valid predicate crime of violence under use of force clause -- by analogy, since, although it can be accomplished by simple intimidation, bank robbery can also be accomplished by intimidation, and bank robbery is a valid predicate.

    As-applied and facial challenge to commerce clause of statute (ACCA?) rejected, as as-applied was conceded in stipulation, and facial because of the theory of the challenge - the crime, not the gun, needs to track to interstate commerce.

    Sufficient evidence.

    No need for the gov't to produce the weapon at trial.

    http://media.ca1.uscourts.gov/pdf.opinions/16-1321P-01A.pdf

    Seventh Circuit: Electric Power Supply Associat v. Anthony Star

    State nuclear power subsidy mechanism that requires emitting producers to purchase credits from nuclear producers at a price set by the market with a safety valve provision directly tied to the federal utility power auction mechanism is not preempted by the federal stature setting up the auction, since the state scheme doesn't price participants and non-participants in the federal auctions differently, and states have a right to regulate the utilities within their borders.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:17-2433:J:Easterbrook:aut:T:fnOp:N:2218059:S:0

    Seventh Circuit: International Assoc. of Machin v. Ray Allen

    Given controlling precedent of summary affirmation in an earlier case by the U.S. Supreme Court, state law requiring employers to process labor union dues check-off cancellation requests within 30 days is preempted as regulation of private conduct within the scope of labor-management relations and the Taft-Hartley Act.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:17-1178:J:Manion:dis:T:fnOp:N:2217949:S:0

    Seventh Circuit: Illinois Liberty PAC v. Lisa Madigan

    State campaign finance law that seems facially underinclusive given stated aims is nonetheless lawful, given presumption of statute's legitimacy.  Court did not abuse its discretion in holding that legislative caucuses were the functional equivalents of political parties for purposes of the law.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:16-3585:J:Sykes:aut:T:fnOp:N:2217703:S:0

    Fifth Circuit: Chris Gilkers v. Darrel Vannoy, Warden

    When, in the pendency of  collateral post-conviction challenges, a state habeas that was subsequently challenged in federal habeas is re-reviewed by the state sua sponte, an attempt to resuscitate the federal habeas claim by a 60(d) motion is properly construed as a second-or-sucessive habeas petition, and is subject to those statutory limits. 

    http://www.ca5.uscourts.gov/opinions/pub/16/16-30279-CV0.pdf

    Fifth Circuit: Constance Westfall v. Jose Luna, et al

    Aggressive nature of the knock-and-talk encounter can taint the subsequent consent to search.  When the person who gave consent to the search indicates that she doesn't want the police officers to go into a certain area, consent for that part of the search is withdrawn.  In these circumstances, the qualified immunity of the police officer presents an issue for trial.

    List of today's opinions what we haven't got to yet



    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:16-3585:J:Sykes:aut:T:fnOp:N:2217703:S:0

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/17-30011.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/16-35738.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/16-17130.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/15-56990.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/13/10-50219.pdf

    https://www.ca10.uscourts.gov/opinions/17/17-7033.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201711941.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201712562.pdf

    http://www.cafc.uscourts.gov/sites/default/files/Palantir_17-1465.Opinion.9-13-18.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2012.Opinion.9-13-2018.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2256.Opinion.9-13-2018.pdf

    -CB

    Third Circuit: In re. Energy Future Holdings

    Bankruptcy court's order was an interlocutory one, as the court retained jurisdiction over the order and the case itself -- no clear error in court's decision that it had clearly erred earlier and the court's granting of a motion to amend filed under the inherent authority of the court.

    Dissent: Nullifying an order without a clear error of fact or law undercuts commercial reliance.

    http://www2.ca3.uscourts.gov/opinarch/181109p.pdf


    Second Circuit: Khalid v. Sessions

    Despite the fact that petitioner was not living with a parent at the time due to a brief juvenile pretrial detention, the petitioner was still in the physical custody of the parent.  When examining a contested term within an area generally governed by state law, federal courts should look to state law indicia for the meaning of the term.

    http://www.ca2.uscourts.gov/decisions/isysquery/1b02a388-b3d2-411b-83ac-285cdabaaea6/1/doc/16-3480_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1b02a388-b3d2-411b-83ac-285cdabaaea6/1/hilite/

    First Circuit: Plixer International, Inc. v. Scrutinizer GMBH

    Although a website's availability, in itself, does not constitute the purposeful availment of the resources of a jurisdiction, a steady and predictable flow of commerce to the jurisdiction can constitute sufficient purposeful availment to justify a reasonable assertion of jurisdiction.

    http://media.ca1.uscourts.gov/pdf.opinions/18-1195P-01A.pdf

    Eleventh Circuit: Bob Glasscox v. Argo, City Of, etc.

    Denial of qualified immunity for trigger-happy tasing of diabetic driver.  Driver's attempt to remove one of the taser wires might have been resistance (pun?)  but as the subsequent (fourth) tasing was underway already, it wasn't excused.

    http://media.ca11.uscourts.gov/opinions/pub/files/201616804.pdf

    Ninth Circuit Bohmker v. State of Oregon

    As state law banning motorized mining in certain areas has a clear purpose, is closely tailored, does not choose land use, and is not integrated within land use scheme, it is not field (pun?)  or conflict preempted by federal mining and and use law.

    Dissent: It restricts use of land.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/16-35262.pdf

    Ninth Circuit: EEOC v. BNSF

    Amended opinion.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/16-35457.pdf

    Ninth Circuit: USA v. Blackstone

    Second or successive habeas challenging residual clause conviction under mandatory sentencing guidelines is untimely, as the right has not yet been made retroactive.

    Ninth Circuit: DNC v. Reagan

    Voter filing assistance statute minimally burdens 1st & 14th Amendments; plaintiff did not demonstrate burden o discrete subgroups; no showing of prior fraud was needed, as the state might be preserving trust in the process; holding that disproportionate impact was de minimis was not clear error; legislature acted without intent to discriminate.

    Discarding out-of-precinct ballots similarly upheld.

    Dissent: Disparate impact, history of discrimaination, Section 2 of VRA problematic, etc.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/18-15845.pdf




    Eighth Circuit: United States v. Calvin Bernhardt

    Sufficient evidence where counterfeit bills were in a stack separate from the other currency and showed varying levels of verisimilitude.

    Indictment counts not multiplicitous, as one refers to spoiliation.

    Attempt to persuade co-conspirator to remain silent, where accompanied by consciousness of wrongdoing, is culapable, as it falls outside of Fifth Amendment and privilege protections.

    A substantial step towards illicit travel must implicate travelling -- not the underlying criminal plan.

    http://media.ca8.uscourts.gov/opndir/18/09/171325P.pdf

    Eighth Circuit: Muhammad Abdurrahman v. Mark Dayton

    Capable of repetition yet evading review exception to mootness is an equitable consideration; as the faithless elector could have filed suit during the vote-casting process, the exception is not available to him now.

    http://media.ca8.uscourts.gov/opndir/18/09/164551P.pdf

    Seventh Circuit: Brian Reynolds v. Henderson & Lyman

    Existence of a duty of care, although dispositive, is a question of law that, in the federal forum, is decided by the judge.  As the division of responsibilities for finding facts and law at the trial stage is a procedural one, the procedures of the federal forum control.

    Under state law, attorneys for LLC owed no third-party duty of care to LLC owner and manager.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-12/C:17-1999:J:Wood:aut:T:fnOp:N:2217358:S:0


    Fifth Circuit: Lizzy Plug, et al v. SXSW Holdings, Incorporated

    Although festival organizers had effective control of the street, the permit required that it be operated according to the usual traffic control plan; organizers did not therefore have a duty of care that might have prompted them to change that.

    Similarly, negligence per se, implied warranty, and public nuisance don't state a claim.

    Murderous driver not sufficiently foreseeable; the test is forseeability from recent events, not actual knowledge of threat.

    http://www.ca5.uscourts.gov/opinions/pub/17/17-50674-CV0.pdf

    Fourth Circuit: Sierra Club v. VEPCO

    While a power plant can be liable under the Act for discharging pollutants into navigable waters via hydrologically connected groundwater, the pollution in this instance was from the landfill and settling pools connected with the site, which were not a "point source" covered by the Act.

    Parallel provisions in state permit should be construed reasonably and in a manner congruent with the federal regulations.

    http://www.ca4.uscourts.gov/opinions/171895.P.pdf

    Fourth Circuit: Rosy de Reyes v. Waples Mobile Home Park

    Landlord's requirement that all adults establish legal residency, prompting a disparate impact on one ethnic group, states a claim under a theory of disparate impact.  At summary judgment stage, that impact is then balanced against justifications for the policy.

    http://www.ca4.uscourts.gov/opinions/171723.P.pdf

    Third Circuit: Michael Rinaldi v. USA

    For purposes of the review of exhaustion of remedies, prison administrative remedies are considered unavailable where administrators dissuade the inmate using serious threats of retaliation and bodily harm.

    To establish unavailaibility, the inmate must show that the remedy was objectively out of reach to the average inmate and that he or she was actually deterred from using it.

    Where a prison modifies procedure and the highest authority formally denies on the merits, the administrative remedy has been exhausted.

    Housing and cellmate assignments are left to the discretionary judgment of the administrators, which bars a tort claim against the government under the FTCA exception to sovereign immunity.

    http://www2.ca3.uscourts.gov/opinarch/161080p.pdf

    Third Circuit: Emil Jutrowski v. Township of Riverdale

    Although a plaintiff in a S1983 suit needs to be able to identify the law enforcement officer who injured him in order to present an issue for trial, an allegation of after-the-fact conspiracy supported by omissions or inconsistencies in contemporaneous records can present an issue for trial on the same facts.

    http://www2.ca3.uscourts.gov/opinarch/172594p.pdf


    Third Circuit: Bernie Clemens v. New York Central Mutual Fire

    Not an abuse of discretion for court to dismiss petition under fee-shifting statute in its entirety where counsel's performance was sub-par, timekeeping records were vague, there was insufficient proof of local prevailing rates, and plaintiff asks for 900k in fees on a 100k award after a four day trial.

    http://www2.ca3.uscourts.gov/opinarch/173150p.pdf

    Second Circuit: United States v. Kirsch

    The organized labor exception to the state extortion statute encompasses only direct demands for assets in the form of traditional labor actions such as strikes and boycotts.  Ejustem. 

    State crimes of extortion that are RICO predicates must involve transferable assets. (Not incorporeal.)

    Wages and benefits sought for union members through extortion were transferable assets.

    Given statute requiring actual participation or authorization on the part of union members in labor violence for culpability, insufficient evidence here.

    Jury instruction focusing on victim's state of mind was appropriate, as the crime is instilling fear.

    Sentence adjusted on remand for insufficient evidence.

    http://www.ca2.uscourts.gov/decisions/isysquery/6f07b1d8-30cd-46b5-aca2-e0fc11936de5/1/doc/16-3329_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6f07b1d8-30cd-46b5-aca2-e0fc11936de5/1/hilite/


    Sixth Circuit: Kashiya Nwanguma v. Donald Trump

    Political candidate's spoken summary ejection of protesters was not an incitement to riot.

    The test for whether a political speech is protected against a charge of incitement considers the content, form, and context of the actual words.  A single listener's subjective response is not dispositive; the court must consider the actual words used.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0202p-06.pdf

    Fifth Circuit: McGill Parfait v. DOWCP, et al


    Lack of notification of award from third party was a jurisdictional bar to any award of funds, given the statute; the purpose of the award is to prevent double recoveries.

    Fifth Circuit: USA v. Jesus Islas-Saucedo

    State burglary statute, given recent precedent holding it not to be a valid ACCA predicate, is similarly not a sentencing guidelines predicate.

    http://www.ca5.uscourts.gov/opinions/pub/16/16-40672-CR0.pdf

    Third Circuit: USA v. Zenaido Renteria, Jr.

    As venue is  jurisdictional element that does not take the state of mind of the deft into account, venue in a certain district need not be foreseeable by the deft.

    Sentence drug calculations upheld.

    http://www2.ca3.uscourts.gov/opinarch/172079p.pdf


    Third Circuit: Trinity Industries Inc v. Greenlease Holding Co

    Risk did not pass back to indemnified party at the end of the period of indemnification, but should be allocated according to law and the other provisions of the agreement.

    Cleanup costs, although more expensive due to being prompted by consent order, had sufficient nexus to the environmental response and were therefore reasonable.

    Cost allocation methodology was improper, as it did not consider costs of individual remediations.

    Court did not abuse discretion in attributing lead contamination to historic factors.

    Arbitrary award  percentages used in balancing of equities were not supported by specifics in the record.

    Corporate entities distinct.  Public policy requires presumption for the corporate form.

    http://www2.ca3.uscourts.gov/opinarch/161994p.pdf