Corrigendum, viz:
http://media.ca1.uscourts.gov/pdf.opinions/14-1858E-01A.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
First Circuit: US v. Soto-Rivera
Sentencing - Guidelines / Johnson / (ACCA)
Given govt stipulation that Guidelines residual clause is unconstitutionally vague Post-Johnson, an on-point note to the Guidelines doesn't save the predicate, as the note referred to an offense type that appears nowhere outside of the residual clause.
http://media.ca1.uscourts.gov/pdf.opinions/14-1216P-01A.pdf
Given govt stipulation that Guidelines residual clause is unconstitutionally vague Post-Johnson, an on-point note to the Guidelines doesn't save the predicate, as the note referred to an offense type that appears nowhere outside of the residual clause.
http://media.ca1.uscourts.gov/pdf.opinions/14-1216P-01A.pdf
Federal Circuit: Pfizer v. Lee
Patent, Procedure
Claim not waived, as it was referenced in briefs and at argument below.
The time that should have been added to the end of the patent was appropriately tolled during the interval between the notice of insufficiency and the revised notice of insufficiency, as the initial notice put the petitioner on notice of the shortcomings in the claim.
Dissent: A response to an incomplete notice might have itself been incomplete.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1265.Opinion.1-20-2016.1.PDF
Claim not waived, as it was referenced in briefs and at argument below.
The time that should have been added to the end of the patent was appropriately tolled during the interval between the notice of insufficiency and the revised notice of insufficiency, as the initial notice put the petitioner on notice of the shortcomings in the claim.
Dissent: A response to an incomplete notice might have itself been incomplete.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1265.Opinion.1-20-2016.1.PDF
Federal Circuit: Lumen View Technollgy v. FindTheBest.com
Patent, Fees
No abuse of discretion in award of fees, given ill-supported allegations of infringement.
While deterrence is to be considered in whether to award fees, it is not a permissible basis for adjusting the lodestar award.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1275.Opinion.1-20-2016.1.PDF
No abuse of discretion in award of fees, given ill-supported allegations of infringement.
While deterrence is to be considered in whether to award fees, it is not a permissible basis for adjusting the lodestar award.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1275.Opinion.1-20-2016.1.PDF
DC Circuit: Christopher Van Hollen, Jr. v. FEC
Administrative
Agency rulemaking that election contributions must be for the purpose of furthering electioneering electoral communications was a permissible and persuasive exercise of authority.
Not A&C.
Bonus: odd Yeats quote in peroration.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E90D7BF9ECC39D1085257F41006AF4EC/$file/15-5016-1594896.pdf
Agency rulemaking that election contributions must be for the purpose of furthering electioneering electoral communications was a permissible and persuasive exercise of authority.
Not A&C.
Bonus: odd Yeats quote in peroration.
https://www.cadc.uscourts.gov/internet/opinions.nsf/E90D7BF9ECC39D1085257F41006AF4EC/$file/15-5016-1594896.pdf
DC Circuit: Jefferson Morley v. CIA
FOIA, Fees
Fees should be partially denied for FOIA proceedings that partially result in records already in the public domain only where the fees that resulted in public documents are segregable and whether the difficulties encountered militate against denial of fees.
https://www.cadc.uscourts.gov/internet/opinions.nsf/3D5B77098A5F717385257F41006AF4C8/$file/14-5230-1594919.pdf
Fees should be partially denied for FOIA proceedings that partially result in records already in the public domain only where the fees that resulted in public documents are segregable and whether the difficulties encountered militate against denial of fees.
https://www.cadc.uscourts.gov/internet/opinions.nsf/3D5B77098A5F717385257F41006AF4C8/$file/14-5230-1594919.pdf
DC Circuit: USA v. Eddie Burroughs
Fourth Amendment, FRCrimP
No plain error in a court's declining to give preclusive effect in the same proceeding to a pretrial determination of another court's finding of lack of probable cause for a search.
https://www.cadc.uscourts.gov/internet/opinions.nsf/14051A07C66684D585257F41006AF4AC/$file/13-3031-1594913.pdf
No plain error in a court's declining to give preclusive effect in the same proceeding to a pretrial determination of another court's finding of lack of probable cause for a search.
https://www.cadc.uscourts.gov/internet/opinions.nsf/14051A07C66684D585257F41006AF4AC/$file/13-3031-1594913.pdf
DC Circuit: DHL Express, Inc. v. NLRB
Labor
Mixed use space ruling contested at ALJ stage, but not before Board - issue (apparently somewhat) preserved for appeal.
Substantial evidence for Board finding that hallway is a mixed-use area.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A5D074B128A1960A85257F41006AF48E/$file/12-1072-1594886.pdf
Mixed use space ruling contested at ALJ stage, but not before Board - issue (apparently somewhat) preserved for appeal.
Substantial evidence for Board finding that hallway is a mixed-use area.
https://www.cadc.uscourts.gov/internet/opinions.nsf/A5D074B128A1960A85257F41006AF48E/$file/12-1072-1594886.pdf
Eleventh Circuit: USA v. Demetrius Renaldo Bowers
FRCrimP
No error in denial of severance of joined counts, as motion was untimely, and no compelling prejudice resulted.
Sufficient evidence.
ACCA upheld against SOP, other constitutional challenges.
Mandatory 187 year sentence for brandishing firearm during robberies not grossly disproportionate.
http://media.ca11.uscourts.gov/opinions/pub/files/201411585.pdf
No error in denial of severance of joined counts, as motion was untimely, and no compelling prejudice resulted.
Sufficient evidence.
ACCA upheld against SOP, other constitutional challenges.
Mandatory 187 year sentence for brandishing firearm during robberies not grossly disproportionate.
http://media.ca11.uscourts.gov/opinions/pub/files/201411585.pdf
Eleventh Circuit:Ernest Edgar Black, et al. Jeff Wigington, et al
S1983
Qualified immunity on trespass, as no actual malice established.
Exclusionary rule does not bar use of illegally obtained evidence to establish probable cause in a civil suit. (!)
No sovereign immunity for Sheriff in ADA claim.
http://media.ca11.uscourts.gov/opinions/pub/files/201510848.pdf
Qualified immunity on trespass, as no actual malice established.
Exclusionary rule does not bar use of illegally obtained evidence to establish probable cause in a civil suit. (!)
No sovereign immunity for Sheriff in ADA claim.
http://media.ca11.uscourts.gov/opinions/pub/files/201510848.pdf
Ninth Circuit: Ronald Taylor v. Matthew Cate, Secretary CDCR
Habeas
De novo/ non-AEDPA review, as no state court has considered the specific constitutional claim.
Where the jury is instructed on aiding and abetting, but instead votes to convict on actual murder, but with a special verdict supporting felony murder that is later vacated, a resentencing for aiding and abetting based on subsequent admissions by deft doesn't sufficiently violate 6A to justify Habeas relief, as the resentencing judge is relying on the earlier verdict.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/21/11-55247.pdf
De novo/ non-AEDPA review, as no state court has considered the specific constitutional claim.
Where the jury is instructed on aiding and abetting, but instead votes to convict on actual murder, but with a special verdict supporting felony murder that is later vacated, a resentencing for aiding and abetting based on subsequent admissions by deft doesn't sufficiently violate 6A to justify Habeas relief, as the resentencing judge is relying on the earlier verdict.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/21/11-55247.pdf
Eighth Circuit: O&S Trucking, Inc. v. Mercedes Benz Financial Serv.
Bankruptcy
While a person can appeal their own Chapter 11 amended bankruptcy plan if it incorporates adverse elements, there must be sufficient objection to the plan, and this isn't achieved by referring to an already-filed appeal and any subsequent appeals.
http://media.ca8.uscourts.gov/opndir/16/01/152048P.pdf
While a person can appeal their own Chapter 11 amended bankruptcy plan if it incorporates adverse elements, there must be sufficient objection to the plan, and this isn't achieved by referring to an already-filed appeal and any subsequent appeals.
http://media.ca8.uscourts.gov/opndir/16/01/152048P.pdf
Eighth Circuit: Munna Godfrey v. Loretta E. Lynch
Immigration
Petitioner has burden to prove that checking a box indicating citizen/national reflected an intent to select the latter -- here, petitioners other representations to the contrary bar the claim.
Late introduction of the I9 in the immigration proceedings doesn't violate Due Process.
http://media.ca8.uscourts.gov/opndir/16/01/151027P.pdf
Petitioner has burden to prove that checking a box indicating citizen/national reflected an intent to select the latter -- here, petitioners other representations to the contrary bar the claim.
Late introduction of the I9 in the immigration proceedings doesn't violate Due Process.
http://media.ca8.uscourts.gov/opndir/16/01/151027P.pdf
Seventh Circuit: Fidlar Technologies v. LPS Real Estate Data Solutions
Civil CFAA
Direct access to data layer by licensed party bypassing the web interface did not violate statutes barring unauthorized computer access.
Interfering with tracking doesn't violate statute / constitute trespass to chattels.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:15-1830:J:Flaum:aut:T:fnOp:N:1690861:S:0
Direct access to data layer by licensed party bypassing the web interface did not violate statutes barring unauthorized computer access.
Interfering with tracking doesn't violate statute / constitute trespass to chattels.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:15-1830:J:Flaum:aut:T:fnOp:N:1690861:S:0
Seventh Circuit: USA v. Tyree Neal, Sr.
Sentencing
Deft can make substantive, but not procedural, challenges to sentencing conditions not challenged earlier on direct appeal.
Conditions here (warrantless entry) were reasonably related to legitimate goals.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:14-3473:J:Hamilton:aut:T:fnOp:N:1690666:S:0
Deft can make substantive, but not procedural, challenges to sentencing conditions not challenged earlier on direct appeal.
Conditions here (warrantless entry) were reasonably related to legitimate goals.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-21/C:14-3473:J:Hamilton:aut:T:fnOp:N:1690666:S:0
Seventh Circuit: VLM Food Trading International v. Illinois Trading Company
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
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
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
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