In a Section 1983 action alleging improper search, a claim at trial that the tip was hearsay does not properly preserve a claim on appeal that the confidential informant might not have existed at all.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-06/C:17-2073:J:Gilbert:aut:T:fnOp:N:2166644:S:0
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. Charlise Williams
No constitutional error where a court limits cross-examination on a peripheral issue designed to suggest bias and motive to lie, so long as the theory of the attack is made plain.
No clear error in sentencing calculation of loss amounts that didn't take into account the lawfulness of claims asserted in the debt incurred during the fraud.
No error in sentencing calculation of number of victims by totalling the number of creditors stayed by each fraudulent petition.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-06/C:17-2244:J:Flaum:aut:T:fnOp:N:2166680:S:0
No clear error in sentencing calculation of loss amounts that didn't take into account the lawfulness of claims asserted in the debt incurred during the fraud.
No error in sentencing calculation of number of victims by totalling the number of creditors stayed by each fraudulent petition.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-06/C:17-2244:J:Flaum:aut:T:fnOp:N:2166680:S:0
Sixth Circuit: In re Blasingame
Trustee's sale of claim to a creditor operated as an assignment of claim under all theories of the claim; this removed the claim from the jurisdiction of the bankruptcy action.
A bankruptcy court's interpretation of its order assigning a claim to a creditor in exchange for value to the trustee is not a contract but an order, and is reviewed for abuse of discretion and not subject to clarification by extrinsic evidence.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18b0009p-06.pdf
A bankruptcy court's interpretation of its order assigning a claim to a creditor in exchange for value to the trustee is not a contract but an order, and is reviewed for abuse of discretion and not subject to clarification by extrinsic evidence.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18b0009p-06.pdf
Fourth Circuit: US v. Daniel Sanchez
When a deft elects not to challenge an almost-completed sentence by Habeas, a challenge to the imposition of additional time after revocation of supervised release cannot be raised on the grounds that the original sentence was unconstitutional, as statute requires such challenges to be made by direct appeal or collateral challenge.
http://www.ca4.uscourts.gov/opinions/174169.P.pdf
Fourth Circuit: US v. Eddie Fluker
Under categorical analysis, state robbery statute isn't a crime of violence, as it only required the minimum of force to take the object from the other person.
A postconviction challenge to a sentencing error after the completion of the sentence is not moot where the petitioner is currently incarcerated on a subsequent conviction to be served consecutively to the challenged sentence.
No error in allowing testimony not presented at trial during a full resentencing, so long as the government is not given a second bite at the apple with respect to a certain sentencing decision.
http://www.ca4.uscourts.gov/opinions/174690.P.pdf
Second Circuit: Certain Underwriting Members of Lloyds of London v. Insurance Company
In business arbitration, party-appointed arbitrators are not limited by the usual tests of evident partiality; rather, a party seeking to challenge the outcome must establish by clear and convincing evidence an improper nondisclosure or a prejudicial impact on the award.
http://www.ca2.uscourts.gov/decisions/isysquery/406cb98d-3b23-41bf-b154-c6c24ff325e7/1/doc/17-1137-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/406cb98d-3b23-41bf-b154-c6c24ff325e7/1/hilite/
(Incertain members of Lloyds presumably limited to permissive intervention.)
Tenth Circuit: United States v. Tapaha
Testimony of prior bad acts properly excluded as speculative and duplicative; given the circumstances of the assault, self-defense claim would not have been bolstered.
No error in denial of cross on own witness, absent court's finding of adversity.
No error in refusal to admit parts of the police report under prior consistent statements exception where fabrication wasn't alleged until prosecution's closing.
No error in refusal to admit parts of the police report to impeach, as police testimony only referred to deft's actions on the date of the offense, and not prior events.
https://www.ca10.uscourts.gov/opinions/17/17-2104.pdf
No error in denial of cross on own witness, absent court's finding of adversity.
No error in refusal to admit parts of the police report under prior consistent statements exception where fabrication wasn't alleged until prosecution's closing.
No error in refusal to admit parts of the police report to impeach, as police testimony only referred to deft's actions on the date of the offense, and not prior events.
https://www.ca10.uscourts.gov/opinions/17/17-2104.pdf
Tenth Circuit: United States v. Francis
Challenge to sentencing factor element waived, as not raised at trial, and appeal does not cite plain error standard.
Police testimony that the recipient confidential informant had criminal record suffices to establish unlawful sale sentencing factor.
Insufficient proof to establish that deft thought that the informant was among the class of prohibited recipients for trafficking enhancement.
Imposition of sex-offender treatment without relevant findings was plain error, but no violation of substantial rights, given that treatment ordered earlier wasn't completed.
https://www.ca10.uscourts.gov/opinions/16/16-1449.pdf
Ninth Circuit: Moldix-Metric Inc. v. McKeon Products Inc.
Whether the color of a product is protectable trade dress or a functional aspect of design is a question for the finder of fact, who must consider the functionality of alternative colors.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/05/16-55548.pdf
Eighth Circuit: United States v. Daniel Stelmacher
Reimposition of supervised release conditions not unreasonable. Bar on contact with mother of child, herself a felon, is permissible, since alternate contacts for direction of raising the child are available.
http://media.ca8.uscourts.gov/opndir/18/06/171421P.pdf
Eighth Circuit: United States v. Javier Pulido-Ayala
Instinctive jump into the car by police dog (aka: "Jampy") was constitutionally permissible search, as the dog's initial movement towards the car would have justified the search.
http://media.ca8.uscourts.gov/opndir/18/06/171371P.pdf
http://media.ca8.uscourts.gov/opndir/18/06/171371P.pdf
Eighth Circuit: United States v. Harold Stanley
No denial of effective counsel where deft waives on the understanding that non-lawyer next friend can serve as counsel, and the next friend's participation in the trial is limited during the proceedings.
No error in jury instructions disclaiming the evidentiary value of pro se statements.
http://media.ca8.uscourts.gov/opndir/18/06/164241P.pdf
Sixth Circuit: John Stojetz v. Todd Ishee
State denial of Habeas for ineffective assistance not unreasonable, as the defendant's trial rights are not positive guarantees, they might have been strategically waived by counsel.
Trial counsel's voir dire description of mitigation as something to be balanced against aggravating circumstances when determining guilt did not prejudice determination of penalty, and might have been calculated to empanel mitigation-friendly jurors.
Deft counsel's lack of independent discovery interviews with accomplices not per se ineffective.
Lack of voir dire on murder publicity not unreasonable, as counsel might have been avoiding drawing attention to it.
So long as intent to kill is an element of both, not unreasonable for a state to allow jury to convict under contradictory theories of murder and abetting the crime.
Jury instruction establishing permissive inference of intent from possession of deadly weapon not unreasonable.
Collateral misconduct claims not raised on direct appeal waived, given state rule requiring exhaustion for any claims based on trial record.
Peremptory excusal of female jurors not unreasonable.
Victim-impact statements in closing not sufficiently plain to justify ineffective assistance.
No prejudice from eyewitness statement that deft had the intent to kill, given evidence of guilt.
No Brady violation on nondisclosure of medical records where deft had been aware of the injury.
Collateral challenge defaults not excused by counsel's nonperformance due to mental health issues; as counsel responded to show-cause orders and discussed non-filings with the court administration, there was neglect rather than abandonment.
No error in denial of postconviction discovery of grand jury proceedings, as indictment under multiple theories of the offence was merely speculative.
New testimony by accomplices and witnesses insufficient for actual innocence Habeas grant.
Sentencing court's view of mitigation not arbitrary and capricious.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0106p-06.pdf
[Editorial note: End the death penalty.]
Sixth Circuit: Larry Cradler v. United States
Where a District Court has extensively considered merits, forfeited timeliness challenges to Habeas shouldn't be entertained on appeal.
As prior panel had used the facts of the offense to determine whether it was a violent crime, as opposed to using them to identify which divisible element of the statute had been violated, petitioner's claim isn't barred by precedent.
Not a crime of violence under modified categorical.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0105p-06.pdf
As prior panel had used the facts of the offense to determine whether it was a violent crime, as opposed to using them to identify which divisible element of the statute had been violated, petitioner's claim isn't barred by precedent.
Not a crime of violence under modified categorical.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0105p-06.pdf
Fifth Circuit: USA v. Alfredo Heard
Conviction for drug possession entered during the pendency of the drug conspiracy is not per se part of the same pattern of relevant conduct, but can be considered an element of criminal history.
Fifth Circuit: Martha Kinard v. Dish Network Corporation
Imbalance between unionized and non-unionized workers' wages provided sufficient equitable necessity for injunction against unilateral imposition of final offer.
NLRB waived grounds for cross-appeal seeking injunction against future wage losses by not including the argument below and in the ULP.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10282-CV0.pdf
Third Circuit: Gregory Ricks v. D. Shover
In prisons, abuse of a sexual nature, either in single instances or in a pattern of conduct, can present an Eighth Amendment violation, but courts should not constitutionalize every malevolent touch.
http://www2.ca3.uscourts.gov/opinarch/162939p.pdf
http://www2.ca3.uscourts.gov/opinarch/162939p.pdf
Second Circuit: Wilson, et. al. v. Dynatone, et. al.
Deft's registration of copyright in sound recording as "work for hire" and lack of subsequent royalty payments were insufficient repudiations of the plaintiff's rights in the composition to trigger the statute of limitations on the plaintiff's claim.
http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/2/doc/17-1549_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/2/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/2/doc/17-1549_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/2/hilite/
Second Circuit: In re: World Trade Center Lower Manhattan Disaster Site Litigation
Given answers to questions certified to New York court, exposure to liability is insufficient grounds to waive the state's prohibition of state constitutional challenges made by state entities to state statutes.
http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/1/doc/15-2181_opn_2.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/1/hilite/
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