Contracts
Transnational contract was formed under Convention by agreement by the parties, and subsequent inclusion of attorney's fees by one party did not become a binding modification, as it was not mirrored or acknowledged in the return invoice or communications.
Attorney's statement that something had been admitted and was in the record isn't sufficient basis for waiver of claim.
Not raising issue of waiver until the reply brief waived the issue of prior default.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:14-2776:J:Sykes:aut:T:fnOp:N:1690495:S:0
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Seventh Circuit: USA v. Michael Segal
Sentencing/restitution
No error in denial of extension ot purchase insurance policies, as the funds were held up elsewhere in in the settlement by deft's actions.
Although an offer to purchase an asset does not have to be capable of acceptance by simple affirmation in order to be considered commercially acceptable, the deft's right of first refusal gave him an equitable stake in the transaction, and his rights were impaired by having to match a third party's freely revocable offer.
Deft counsel can properly testify as to having seen or not seen the listing of an asset on a list of properties to be seized when the issue turns on a question of inadvertent omission that was not brought to the government's attention.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:14-3533:J:Posner:aut:T:fnOp:N:1690615:S:0
No error in denial of extension ot purchase insurance policies, as the funds were held up elsewhere in in the settlement by deft's actions.
Although an offer to purchase an asset does not have to be capable of acceptance by simple affirmation in order to be considered commercially acceptable, the deft's right of first refusal gave him an equitable stake in the transaction, and his rights were impaired by having to match a third party's freely revocable offer.
Deft counsel can properly testify as to having seen or not seen the listing of an asset on a list of properties to be seized when the issue turns on a question of inadvertent omission that was not brought to the government's attention.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:14-3533:J:Posner:aut:T:fnOp:N:1690615:S:0
Sixth Circuit: Jose Zaldana Menijar v. Loretta Lynch
From December, but on today's list. Revised, perhaps.
http://www.ca6.uscourts.gov/opinions.pdf/16a0015p-06.pdf
http://www.ca6.uscourts.gov/opinions.pdf/16a0015p-06.pdf
Sixth Circuit: Hobert Tackett v. M&G Polymers USA, LLC
Contracts
Vesting of retirees in pension plan should follow normal rules of contractual interpretation, with only a thumb on the scales in favor of vesting. Remanded from Scotus, with a helpful list of such rules.
Remanded to District Court to consider relevance and weight of writings outside the corners of the agreement.
http://www.ca6.uscourts.gov/opinions.pdf/16a0014p-06.pdf
Vesting of retirees in pension plan should follow normal rules of contractual interpretation, with only a thumb on the scales in favor of vesting. Remanded from Scotus, with a helpful list of such rules.
Remanded to District Court to consider relevance and weight of writings outside the corners of the agreement.
http://www.ca6.uscourts.gov/opinions.pdf/16a0014p-06.pdf
Fifth Circuit: USA v. Larry Thompson
Offender registration
Statute is not an unconstitutional regulation of purely intrastate commerce.
Statute requires timely registration when present in an area - acquisition of a domicile or extended habitation is not necessary.
Conversation in which US Marshall explained the registration requirement was not testimonial in nature, and therefore was not subject to Miranda.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40370-CR0.pdf
Statute is not an unconstitutional regulation of purely intrastate commerce.
Statute requires timely registration when present in an area - acquisition of a domicile or extended habitation is not necessary.
Conversation in which US Marshall explained the registration requirement was not testimonial in nature, and therefore was not subject to Miranda.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40370-CR0.pdf
Fourth Circuit: Knox Creek Coal Corporation v. Secretary of Labor
Administrative
Commission review of ALJ's decisions did not overreach by reversing on the basis that the ALJ had only considered a snapshot view of the circumstance, and that the ALJ had improperly weighed the possibility disaster actually occurring from the violation of the rules. Findings of fact were not contradicted in the reversal.
Where commission adopts factual findings of ALJ but reverses, review is for substantial error.
Litigating decisions (adjudications?) of the Secretary are not subject to Chevron deference. (!)
As the gravity of events resulting from a violation are considered in another prong of the rule, the gravity of the prong under consideration refers to the degree of the material violation itself.
Contemplated - but not implemented - improvements are not mitigations.
http://www.ca4.uscourts.gov/Opinions/Published/142313.P.pdf
Commission review of ALJ's decisions did not overreach by reversing on the basis that the ALJ had only considered a snapshot view of the circumstance, and that the ALJ had improperly weighed the possibility disaster actually occurring from the violation of the rules. Findings of fact were not contradicted in the reversal.
Where commission adopts factual findings of ALJ but reverses, review is for substantial error.
Litigating decisions (adjudications?) of the Secretary are not subject to Chevron deference. (!)
As the gravity of events resulting from a violation are considered in another prong of the rule, the gravity of the prong under consideration refers to the degree of the material violation itself.
Contemplated - but not implemented - improvements are not mitigations.
http://www.ca4.uscourts.gov/Opinions/Published/142313.P.pdf
Fourth Circuit: Colon Health Centers v. Bill Hazel
Commerce clause
State medical facility licensing statute does not facially violate dormant commerce clause, as there is no demonstrable statistical proof of discrimination in favor of in-state providers.
State of incorporation is a valid, testable criterion.
Bias in favor of incumbent businesses is not a proxy for discrimination against out of state businesses.
Sufficient policy benefits to justify policy in a balancing test against de facto dormant commerce clause challenge.
http://www.ca4.uscourts.gov/Opinions/Published/142283.P.pdf
State medical facility licensing statute does not facially violate dormant commerce clause, as there is no demonstrable statistical proof of discrimination in favor of in-state providers.
State of incorporation is a valid, testable criterion.
Bias in favor of incumbent businesses is not a proxy for discrimination against out of state businesses.
Sufficient policy benefits to justify policy in a balancing test against de facto dormant commerce clause challenge.
http://www.ca4.uscourts.gov/Opinions/Published/142283.P.pdf
Third Circuit: Elnor Whitehead v. Pullman Group LLC
Arbitration
Arbitrator's likely application of statute precluding testimony about unrecorded transactions with deceased party was not an error sufficient to vacate the arbitration.
As the arbitrator likely filtered out barred testimony, opposing party's use of spoken parole evidence to the contrary didn't open the door to use by plaintff.
http://www2.ca3.uscourts.gov/opinarch/151627p.pdf
Arbitrator's likely application of statute precluding testimony about unrecorded transactions with deceased party was not an error sufficient to vacate the arbitration.
As the arbitrator likely filtered out barred testimony, opposing party's use of spoken parole evidence to the contrary didn't open the door to use by plaintff.
http://www2.ca3.uscourts.gov/opinarch/151627p.pdf
Second Circuit: Yale-New Haven Hospital v. Nicholls, et al.
ERISA
Denial of en banc, with dissent from denial.
ERISA annuity/lump sum benefits / posthumous domestic orders. Or something like that.
http://www.ca2.uscourts.gov/decisions/isysquery/78742b70-321c-4ada-8a3a-2b2b4f09d6b8/1/doc/13-4725comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/78742b70-321c-4ada-8a3a-2b2b4f09d6b8/1/hilite/
Denial of en banc, with dissent from denial.
ERISA annuity/lump sum benefits / posthumous domestic orders. Or something like that.
http://www.ca2.uscourts.gov/decisions/isysquery/78742b70-321c-4ada-8a3a-2b2b4f09d6b8/1/doc/13-4725comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/78742b70-321c-4ada-8a3a-2b2b4f09d6b8/1/hilite/
Eleventh Circuit: USA v. Harvey Zitron
Tax, FrCrimP
No error in joining tax crimes with fraud crimes in the indictment, as prejudice was speculative.
Comment elicited on cross about hypothetical silence of deft didn't violate 5A, shift burdens.
Where deft has in the past opened credit accounts for family, doing so with unlawful intent suffices for statutory bar on knowingly opening the account with unlawful authority.
No plain error in court's determining amount of fraud based on scope of fraud versus funds deposited by deft.
Leadership enhancement upheld.
http://media.ca11.uscourts.gov/opinions/pub/files/201410009.pdf
No error in joining tax crimes with fraud crimes in the indictment, as prejudice was speculative.
Comment elicited on cross about hypothetical silence of deft didn't violate 5A, shift burdens.
Where deft has in the past opened credit accounts for family, doing so with unlawful intent suffices for statutory bar on knowingly opening the account with unlawful authority.
No plain error in court's determining amount of fraud based on scope of fraud versus funds deposited by deft.
Leadership enhancement upheld.
http://media.ca11.uscourts.gov/opinions/pub/files/201410009.pdf
Eleventh Circuit: In re: Anthony Johnson
Habeas, AEDPA
30 Day limit for consideration of second or successive petitions is advisory, not jurisdictional.
Johnson retroactivity: petition held in abeyance pending S.Ct. ruling.
http://media.ca11.uscourts.gov/opinions/pub/files/201610011.order.pdf
30 Day limit for consideration of second or successive petitions is advisory, not jurisdictional.
Johnson retroactivity: petition held in abeyance pending S.Ct. ruling.
http://media.ca11.uscourts.gov/opinions/pub/files/201610011.order.pdf
Eleventh Circuit: Dan Carmichael McCarthan v. Warden, FCC Coleman - Medium
Habeas
S. Ct. holding that state escape statute is not categorically a violent crime for purposes of the ACCA predicate conviction is a substantive change in the law to be made retroactively available on collateral review.
Circuit precedent that escape was a violent crime for purposes of one statute had a preclusive effect on whether it was a crime of violence with reference to another statute.
Very complex - here's our best guess: Access to S2241 Habeas depends on there being no effective remedy by a Habeas claim on motion. Where a deft has multiple potential predicates in the PSR and the indictment only lists three, but neither the sentencing court nor the PSR identifies the ones to be used in the ACCA enhancement, all potentially valid predicates are counted against the deft in considering jurisdiction for a S2241 writ unless petitioner can affirmatively establish that prior Habeas on motion would have been ineffective against the uncharged predicates. The argument that a challenge to a predicate was waived for procedural default, however, is a an affirmative defense on the merits - the relevant jurisdictional question for the S2241 writ is whether the writ on motion would have been an effective challenge.
[Again, don't rely on any of this for anything.]
Concurrence: No access to writ, as alternate bases for the enhancement establish that sentencing court did not rely on the challenged offense.
http://media.ca11.uscourts.gov/opinions/pub/files/201214989.pdf
S. Ct. holding that state escape statute is not categorically a violent crime for purposes of the ACCA predicate conviction is a substantive change in the law to be made retroactively available on collateral review.
Circuit precedent that escape was a violent crime for purposes of one statute had a preclusive effect on whether it was a crime of violence with reference to another statute.
Very complex - here's our best guess: Access to S2241 Habeas depends on there being no effective remedy by a Habeas claim on motion. Where a deft has multiple potential predicates in the PSR and the indictment only lists three, but neither the sentencing court nor the PSR identifies the ones to be used in the ACCA enhancement, all potentially valid predicates are counted against the deft in considering jurisdiction for a S2241 writ unless petitioner can affirmatively establish that prior Habeas on motion would have been ineffective against the uncharged predicates. The argument that a challenge to a predicate was waived for procedural default, however, is a an affirmative defense on the merits - the relevant jurisdictional question for the S2241 writ is whether the writ on motion would have been an effective challenge.
[Again, don't rely on any of this for anything.]
Concurrence: No access to writ, as alternate bases for the enhancement establish that sentencing court did not rely on the challenged offense.
http://media.ca11.uscourts.gov/opinions/pub/files/201214989.pdf
Eighth Circuit: United States v. Joshua Welch
Fourth Amendment
30 Day time period for notification of warrant ran from execution of warrant, not identification of the subject.
No clear error in holding the error harmless, given good faith and lack of prejudice.
Barring use of prior affidavit on cross was harmless error, if error.
http://media.ca8.uscourts.gov/opndir/16/01/151993P.pdf
30 Day time period for notification of warrant ran from execution of warrant, not identification of the subject.
No clear error in holding the error harmless, given good faith and lack of prejudice.
Barring use of prior affidavit on cross was harmless error, if error.
http://media.ca8.uscourts.gov/opndir/16/01/151993P.pdf
Eighth Circuit: National Parks Conservation v. EPA
Administrative, environment
Circuit has statutory jurisdiction over challenge to local component of national plan.
Offsets plan upheld as not arbitrary and capricious.
Rational basis for agency modification of statutory goals.
Concur in J: No circuit jurisdiction over national plan.
http://media.ca8.uscourts.gov/opndir/16/01/122910P.pdf
Circuit has statutory jurisdiction over challenge to local component of national plan.
Offsets plan upheld as not arbitrary and capricious.
Rational basis for agency modification of statutory goals.
Concur in J: No circuit jurisdiction over national plan.
http://media.ca8.uscourts.gov/opndir/16/01/122910P.pdf
Seventh Circuit: Larry Nelson v. City of Chicago
FRE
Admission of plaintiff's prior arrests on the theory that they spoke to his good law-abiding citizenship was error; also not probative of damages mitigation on 4A claim
Admission of plaintiff's prior lawsuits against the city error, as it didn't contradict testimony at trial; also not cured by limiting instruction.
Admission of police officer's extended hypothetical as to reasons for drawing a weapon in a traffic stop was error.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:12-3401:J:Sykes:aut:T:fnOp:N:1689820:S:0
Admission of plaintiff's prior arrests on the theory that they spoke to his good law-abiding citizenship was error; also not probative of damages mitigation on 4A claim
Admission of plaintiff's prior lawsuits against the city error, as it didn't contradict testimony at trial; also not cured by limiting instruction.
Admission of police officer's extended hypothetical as to reasons for drawing a weapon in a traffic stop was error.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:12-3401:J:Sykes:aut:T:fnOp:N:1689820:S:0
Seventh Circuit: Smith, Keith v. Sipi, LLC
Bankruptcy, standing
State tax sale isn't a transfer for value, as the purchasers bid on the lien obligation without explicit reference to the value of the property.
Both parties have standing, where one was the initial plaintiff, and the other was later joined prior to their divorce, which left the joined plaintiff with sole rights in the property but other issues unresolved.
Plaintiff's recovery limited to homestead exception.
Purchaser of the lien obligation was the initial transferee, as the state merely facilitated the transfer.
Second purchaser had no constructive knowledge of fraudulence of transfer in the circumstances.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:15-1166:J:Hamilton:aut:T:fnOp:N:1689637:S:0
State tax sale isn't a transfer for value, as the purchasers bid on the lien obligation without explicit reference to the value of the property.
Both parties have standing, where one was the initial plaintiff, and the other was later joined prior to their divorce, which left the joined plaintiff with sole rights in the property but other issues unresolved.
Plaintiff's recovery limited to homestead exception.
Purchaser of the lien obligation was the initial transferee, as the state merely facilitated the transfer.
Second purchaser had no constructive knowledge of fraudulence of transfer in the circumstances.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-20/C:15-1166:J:Hamilton:aut:T:fnOp:N:1689637:S:0
Fourth Circuit: USA v. Wendy Annette Moore
Crim
No variance from indictment when a court instructs according to both prongs of a statute when the indictment only charged one prong of the statute.
The trustworthiness of a statement against interest hearsay exception refers to the statement actually made, not the trustworthiness of the reporting. No confrontation clause issue in statement to fellow detainee.
No plain error in admission of statements of prior bad acts/character, as gov't was required to correct.
http://www.ca4.uscourts.gov/Opinions/Published/144645.P.pdf
No variance from indictment when a court instructs according to both prongs of a statute when the indictment only charged one prong of the statute.
The trustworthiness of a statement against interest hearsay exception refers to the statement actually made, not the trustworthiness of the reporting. No confrontation clause issue in statement to fellow detainee.
No plain error in admission of statements of prior bad acts/character, as gov't was required to correct.
http://www.ca4.uscourts.gov/Opinions/Published/144645.P.pdf
First Circuit: Harrington v. Simmons
Crim, FRCrimP
Indictment not duplicative, as fraudulent schemes are inherently complex, and the scheme had a discrete sole desired outcome - a desire to score a run, not to hit a double and then steal two bases.
No variance from indictment given the diversity of interests of those who sustained losses, e.g., lenders, borrowers. No prejudice, as single theory.
The misstatements to lenders need only have a tendency to influence the lenders decisions to be considered material -- actual reliance need not be proven.
Given the structure and conduct of deft's organization, intent can be fairly inferred.
Court'd decision to deny funding for expert witness was without clear error, given concerns as to materiality and admissibility.
Where ten of the eleven counts are severed just before the case goes to the jury, a general directive to ignore the evidence offered in support of the counts sufficed.
Restitution challenge waived by spoken acceptance by counsel at trial, despite lack of victim statements.
http://media.ca1.uscourts.gov/pdf.opinions/14-1325P-01A.pdf
Indictment not duplicative, as fraudulent schemes are inherently complex, and the scheme had a discrete sole desired outcome - a desire to score a run, not to hit a double and then steal two bases.
No variance from indictment given the diversity of interests of those who sustained losses, e.g., lenders, borrowers. No prejudice, as single theory.
The misstatements to lenders need only have a tendency to influence the lenders decisions to be considered material -- actual reliance need not be proven.
Given the structure and conduct of deft's organization, intent can be fairly inferred.
Court'd decision to deny funding for expert witness was without clear error, given concerns as to materiality and admissibility.
Where ten of the eleven counts are severed just before the case goes to the jury, a general directive to ignore the evidence offered in support of the counts sufficed.
Restitution challenge waived by spoken acceptance by counsel at trial, despite lack of victim statements.
http://media.ca1.uscourts.gov/pdf.opinions/14-1325P-01A.pdf
First Circuit: US v. Manso-Cepeda
Bankruptcy
A denial of discharge due to insufficient record-keeping in the pre-petition period is not a strict liability standard, but can be offset by a justification that is objectively reasonable.
Claiming that the petitioner was not the true principal for the assets in question is insufficient basis for denying discharge based on the unexplained dissipation of assets.
http://media.ca1.uscourts.gov/pdf.opinions/15-9005P-01A.pdf
A denial of discharge due to insufficient record-keeping in the pre-petition period is not a strict liability standard, but can be offset by a justification that is objectively reasonable.
Claiming that the petitioner was not the true principal for the assets in question is insufficient basis for denying discharge based on the unexplained dissipation of assets.
http://media.ca1.uscourts.gov/pdf.opinions/15-9005P-01A.pdf
First Circuit: US v. Prieto
Crim - accessory
Sufficient evidence for conviction for accessory to use of a firearm where jury might have inferred deft's prior knowledge of possession and deft didn't stop the car and walk away after possession was revealed.
Challenge to jury instructions might have been more appropriate.
http://media.ca1.uscourts.gov/pdf.opinions/14-2068P-01A.pdf
Sufficient evidence for conviction for accessory to use of a firearm where jury might have inferred deft's prior knowledge of possession and deft didn't stop the car and walk away after possession was revealed.
Challenge to jury instructions might have been more appropriate.
http://media.ca1.uscourts.gov/pdf.opinions/14-2068P-01A.pdf
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