Impeachment evidence against claims of opposing witnesses did not rise to the clear and convincing level of deliberate perjury required for fraud on the court; they should have been raised on direct appeal or in a post-judgment motion.
Rule 11 sanctions upheld, as delay in filing couldn't be ascribed to a reluctance to assert such a thing against opposing counsel.
Motion for appellate sanctions needs to be raised in a separate motion; they can't just be mentioned in the briefing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-1786:J:Hamilton:aut:T:fnOp:N:2173108: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: Scott Milliman, Sr. v. William Prim
In a S1983 First Amendment retaliatory firing claim, outside contact with the medical examiner and an expert's criticism of their methodology is insufficient to raise a question of pretext for trial when a law enforcement officer is fired based on a medical review that was ordered after he made accusations of highly abnormal corruption in the office.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2687:J:Flaum:aut:T:fnOp:N:2172987:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2687:J:Flaum:aut:T:fnOp:N:2172987:S:0
Seventh Circuit: USA v. Aaron Lamon
A weapons-possession count should not be grouped with a drugs count when tallying up the offense level during sentencing, as the weapons-possession charge incurs a statutory minimum term of imprisonment, removing the justification for such grouping.
Circuit split flagged, and doubled down upon.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2764:J:PerCuriam:aut:T:fnOp:N:2172766:S:0
Circuit split flagged, and doubled down upon.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2764:J:PerCuriam:aut:T:fnOp:N:2172766:S:0
Fifth Circuit: USA v. Latroy Burris
State Robbery statute does not have violence as an element, and, as the relevant standard implies physical force as opposed to offensive touching, can be accomplished without the use of force; it is therefore not a valid ACCA predicate under the elements prong.
Fifth Circuit: Leoncio Garcia v. Wal-Mart Stores Texas, L.L.C.
Where the defendant denies actual knowledge on a state premises-liability tort claim, circumstantial particularized evidence of the hazard's creation suffices to establish an issue for trial where the plaintiff's scenario is more reasonable than the defendant's alternative conjecture.
Fifth Circuit: USA v. Karl Scott
@justicewillett
Conspiracy for Possession with Intent to Distribute doesn't require actual or constructive possession; it suffices that the deft formed an agreement for the others to possess the drugs, knew of that agreement, and voluntarily participated in it.
Aiding and Abetting on the same charge is established when deft associates with a criminal venture, ensures its occurrence, purposefully participated in the venture, and sought to make it succeed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40552-CR0.pdf
Conspiracy for Possession with Intent to Distribute doesn't require actual or constructive possession; it suffices that the deft formed an agreement for the others to possess the drugs, knew of that agreement, and voluntarily participated in it.
Aiding and Abetting on the same charge is established when deft associates with a criminal venture, ensures its occurrence, purposefully participated in the venture, and sought to make it succeed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40552-CR0.pdf
Fifth Circuit: Valero Marketing & Supply Co. v. M/V Almi Sun, IMO
Subcontractor cannot assert lien against vessel, as the vessel did not control the selection or the performance of the subcontractor, and under the statute, a lien only arises against a counterparty to a contract for necessities, or a subcontractor whose selection or performance was controlled by the vessel.
Dissent: There was implicit approval of the selection of the subcontractor. Disputed question of whether this creates a circuit split.
http://www.ca5.uscourts.gov/opinions/pub/16/16-30194-CV0.pdf
Dissent: There was implicit approval of the selection of the subcontractor. Disputed question of whether this creates a circuit split.
http://www.ca5.uscourts.gov/opinions/pub/16/16-30194-CV0.pdf
Federal Circuit: Fastship, LLC v. US
For purposes of the relevant patent statute, an item is manufactured when it is made to include each limitation of the thing invented and is therefore suitable for use.
As the vessel's hull and waterjets had not yet been assembled for use, there was no littoral infringement.
Court's reading of metric rather than imperial units was neither an impermissible use of extrinsic evidence nor a finding of fact -- merely a clarification.
18 million dollar typo in damages calculation corrected.
http://www.cafc.uscourts.gov/sites/default/files/s17-2248_opinion.pdf
Reminder: We don't know many things, but we especially don't know Patent. As always, entertainment purposes only.
As the vessel's hull and waterjets had not yet been assembled for use, there was no littoral infringement.
Court's reading of metric rather than imperial units was neither an impermissible use of extrinsic evidence nor a finding of fact -- merely a clarification.
18 million dollar typo in damages calculation corrected.
http://www.cafc.uscourts.gov/sites/default/files/s17-2248_opinion.pdf
Reminder: We don't know many things, but we especially don't know Patent. As always, entertainment purposes only.
Tenth Circuit: Bedolla-Zarate v. Sessions
Statement in judgment that deft had "pled" guilty to the offense sufficed to establish the plea for purposes of immigration removal.
Strict liability elements of the offense are in both the state statute and the federal generic term; relations with someone under the age of consent suffice for actual abuse.
https://www.ca10.uscourts.gov/opinions/17/17-9519.pdf
Strict liability elements of the offense are in both the state statute and the federal generic term; relations with someone under the age of consent suffice for actual abuse.
https://www.ca10.uscourts.gov/opinions/17/17-9519.pdf
Ninth Circuit: US v. David Rhinehart
Where the terms of a sentencing enhancement predicate are defined in a proximate section of the law, the inquiry into the predicates is not one of subjective relation, but instead the usual categorical comparison to the federal generic crime.
State statutes are categorically broader than the federal offense; disjunctive list following a statement of the offense does not establish divisibility.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-10409.pdf
State statutes are categorically broader than the federal offense; disjunctive list following a statement of the offense does not establish divisibility.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-10409.pdf
Ninth Circuit: US v. Flora Espino
Although the general verdict form erroneously indicated that a finding of not guilty would also be subject to the qualification that it had been found beyond a reasonable doubt, the defendant's rights were not substantially prejudiced, given the instructions at trial.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-50344.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-50344.pdf
Seventh Circuit: Tamara Loertscher v. Eloise Anderson
Challenge to state statue prescribing mandatory drug testing for certain pregnant women dismissed as moot, since the plaintiff has moved out of state and the presumption is against continued drug use.
The case is not protected as capable of repetition, yet evading review, since the harms must be to the same plaintiff.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-18/C:17-1936:J:Ripple:aut:T:fnOp:N:2172278:S:0
The case is not protected as capable of repetition, yet evading review, since the harms must be to the same plaintiff.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-18/C:17-1936:J:Ripple:aut:T:fnOp:N:2172278:S:0
Fifth Circuit: John Uranga, III v. Lorie Davis, Director
Postjudgment motion following denial of Habeas was not a second or successive Habeas filing, as it was a timely challenge of denial of leave to amend.
Fellow prisoner's delivery and signature sufficed for the prison mailbox rule under the next friend doctrine, as the justifying circumstances were disclosed.
Juror was not biased as a matter of law under the implied bias doctrine when it emerged at trial that the deft had driven over and damaged his lawn while fleeing from authorities.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10290-CV1.pdf
Fellow prisoner's delivery and signature sufficed for the prison mailbox rule under the next friend doctrine, as the justifying circumstances were disclosed.
Juror was not biased as a matter of law under the implied bias doctrine when it emerged at trial that the deft had driven over and damaged his lawn while fleeing from authorities.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10290-CV1.pdf
Fifth Circuit: Ronald Salmond, Sr. v. Nancy Berryhill, Acting Cms
ALJ erred in holding that plaintiff's impairment was not severe, as binding circuit precedent classifies any impairment as severe that exceeds a de minimis impairment interfering with work, as record established that the impairment interfered with his work.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10161-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-10161-CV0.pdf
Fourth Circuit: Damon Wilson v. Prince George's County, Md
Officer used excessive force in shooting plaintiff, who at the time, was a burglary and assault suspect about 20 feet from the officer, advancing towards him while stabbing himself repeatedly with a pocketknife.
Qualified immunity, as insufficiently bright line when dealing with questions of mental illness.
Remand to determine state law immunity for precisely parallel violations of State Declaration of Rights.
http://www.ca4.uscourts.gov/opinions/171856.P.pdf
Qualified immunity, as insufficiently bright line when dealing with questions of mental illness.
Remand to determine state law immunity for precisely parallel violations of State Declaration of Rights.
http://www.ca4.uscourts.gov/opinions/171856.P.pdf
Fourth Circuit: Angela Horne v. WTVR, LLC
Finance Director of local school board was appropriately considered a public official for the purposes of a defamation action, as the position invites public scrutiny; categorically, a past felony conviction is relevant in such a case.
News organization's forgoing a lead that the plaintiff had been knowingly hired by the board did not suffice for actual malice, as the allegation was the sort of thing that might be said if the applicant had in fact lied on the application.
Common-law reporter's privilege prevails over speculative assertion that the identity of the source might reveal the actual malice.
http://www.ca4.uscourts.gov/opinions/171483.P.pdf
News organization's forgoing a lead that the plaintiff had been knowingly hired by the board did not suffice for actual malice, as the allegation was the sort of thing that might be said if the applicant had in fact lied on the application.
Common-law reporter's privilege prevails over speculative assertion that the identity of the source might reveal the actual malice.
http://www.ca4.uscourts.gov/opinions/171483.P.pdf
Third Circuit: Joel Doe v. Boyertown Area School District
Use of school privacy facilities by transgender students doesn't present a Title IX claim for non-transgender students in the room, as the policy is of equal applicability to both sexes.
Insufficient injury for state tort claim.
Denial of preliminary injunction was appropriate, given mitigation in place during the litigation.
http://www2.ca3.uscourts.gov/opinarch/173113p.pdf
Insufficient injury for state tort claim.
Denial of preliminary injunction was appropriate, given mitigation in place during the litigation.
http://www2.ca3.uscourts.gov/opinarch/173113p.pdf
Third Circuit: Wendy Osorio Martinez v. US
Jurisdiction-stripping provision of the INA violates the Suspension Clause when immigrant children who have attained a Congressionally designated status of special indigence that cannot be lifted without some due process are prohibited from seeking the writ. The INA preserves both the Congressional power to deport and the Congresional power not to deport.
TRO is justified to bar expedited removal of such children -- on merits, without remand.
http://www2.ca3.uscourts.gov/opinarch/172159p.pdf
TRO is justified to bar expedited removal of such children -- on merits, without remand.
http://www2.ca3.uscourts.gov/opinarch/172159p.pdf
Second Circuit: United States v. Sawyer
District court's re-sentencing on remand from panel holding that the sentence was substantively unreasonable violated the mandate rule, as the sentence was reduced, not for the two factors outlined in the opinion, but for good conduct in prison in the interval.
Remand to different judge.
Dissent: Mandate rule applies to the order, and doesn't require an endorsement of the reasons for the decision. Any subsequent appeal likely to go to a different panel.
http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/1/doc/15-2276_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/1/hilite/
Remand to different judge.
Dissent: Mandate rule applies to the order, and doesn't require an endorsement of the reasons for the decision. Any subsequent appeal likely to go to a different panel.
http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/1/doc/15-2276_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/1/hilite/
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