Third Circuit: USA v. Jamell Birt

As the First Step Act made retroactive the modification of the statutory minimum quantities of prohibited substances, a conviction under the parallel catch-all provision where no minimum quantity is specified was not made subject to retroactive review.   Circuit Split flagged.

[Inaugurating the First Step Act tag -- seems to be a thing of late.  It's the new ACCA, perhaps.]

USA v. Jamell Birt

Second Circuit: New Hope Family Services, Inc. v. Poole

Defendant's Free Exercise claim of subtle or covert bias in the implementation of a facially neutral law suffices for additional discovery given the variations between the law and the regulation, the length of time before the regulation was amended, and indications of animus within the administrative process.

Adoption agency's speech is not government speech (e.g., advertisements, monuments, vanity plates), as it's not a traditional mode of communication with the public, and the public doesn't see the speech as government speech -- also, there's no indication that, outside the present context, the govt can control the speech.

Discovery warranted to find out whether compelling certain adoptions might cause the adoprtion agency to change its message in counseling and client contact.

Discovery warranted to determine if compliance with state mandates would harm Free Association by keeping people who would otherwise collaborate with the adoption agency might stay away.

On remand, in tailoring possible preliminary injunction, court must consider verified pleadings and affidavits as evidence of potential harms to constitutional interests.

New Hope Family Services, Inc. v. Poole

Second Circuit: UnitedHealthcare of New York, v. Lacewell

As the scheme of regulation at issue had many remedies to ensure state compliance, federal courts had jurisdiction to equitably enjoin the prospective enforcement of state agency determinations; the court therefore had subject matter jurisdiction over the claim.

As evinced by the direct and positive effect on the federal regulatory scheme, state risk allocation determinations are subject to conflict preemption by the federal statute; informal consultations with the agency were not sufficiently final to signal agency approval, and the agency's appellate-stage amicus asserting preemption is accorded Auer deference.

UnitedHealthcare of New York, v. Lacewell

Second Circuit: In Re: 21st Century Oncology Holdings, Inc.

Bankruptcy court appropriately limited employee's claim for bonuses due, as although the triggering event for the bonus had been achieved, under normal conditions, employment would have had to continue for five years beyond the event, and present obligations to the employee were only accelerated by the filing of the petition, making the acceleration of the claim the true triggering event.

In Re: 21st Century Oncology Holdings, Inc.

Second Circuit: United States v. Atilla

Statute that prohibited evading or avoiding economic sanctions on a foreign nation referred only to evading existing sanctions, not the attempt to avoid the imposition of subsequent sanctions.

Elements of bank fraud and bank fraud conspiracy would necessarily mean that existing sanctions were violated, so harmless error.

Sufficient evidence for prohibited use of US banks, since US dollars were desired, and court heard testimony that there was a high likelihood that the process would pass through a US entity at some point, something that the conspirators were likely well aware of.

Statute prohibiting fraud against the government goes beyond the common-law definition of fraud to encompass any impairment of government functions.

Statute does not trespass on executive conduct of foreign affairs, since DOJ is an executive agency, and they decide to prosecute.

If the refusal to allow a transcript and tape of jail telephone call in for impeachment after gov't witness' claim that he had not said that in America, people have to admit to things they haven't done in order to get free was error, it was harmless error, as the jury was aware that the witness was hoping to receive leniency for his cooperation.

United States v. Atilla

Second Circuit: Williams v. Korines

Prison regulation of gang insignia and materials clearly prohibited possession of photographs of people in the gang's colors and making hand-signs associated with the gang; no reasonable guard would be unaware that there materials were encompassed by the regulation.

Where a previous penalty proceeding is vacated upon review, and in the subsequent penalty, credit is given for the time served of the earlier penalty, the first proceeding is not a basis for a due process liberty claim.

Although the second proceeding was reversed by the Director, the state's deprivation of due process standard merely requires sufficient information to constitute substantial evidence, so the expert opinions offered in the proceeding sufficed.

Circles added to photographs examined during the proceeding were harmless, as the expert earlier reviewed the photos without the circles.

Talking over the presiding officer and waving his finger at her was sufficient basis to remove the prisoner form the proceeding.

Williams v. Korines

Ninth Circuit: USA v. Maher Obagi

Where a separate immunity deal involving a chief government witness is discovered halfway through defense closings, the genie is out of the bottle, as the govt has already crafted an approach that uses that testimony to decide the case, even where it only bolsters other witness' accounts.

Dissent: Shouldn't be a per se rule to grant Brady claims that arise after closings -- the testimony was duplicative, gov't evidence was overwhelming, and the curative instruction was strong.

USA v. Maher Obagi

Ninth Circuit: USA v. Tuan Luong

Sufficient nexus to interstate commerce for purpose of the Hobbs Act where a BB with servers in the state and redundant servers out of the state is used to facilitate a robbery, since the site operated as an interstate market and facilitated interstate transactions -- the deft's conduct therefore had an impact on interstate commerce.

As the indictment at retrial served for the same complex of facts, it was not constructively amended by the gov't suggestion that the deft's attempted use of a stole debit card was interstate in nature.

Unanimity instruction not required, as interstate commerce theories were alternate means that jurors could have used to convict on the same factual elements.

Jury instruction on "slight but not speculative" effect on interstate commerce was either correct or harmless error.

Even if mere use of the interstate instrumentality is insufficient to satisfy interstate standard, prosc. statements to contrary and statements of duty to convict were not incurable conduct.

Erroneous not to instruct that knowledge of felon status was an element of felon in possession, but not plain error, given deft's many prior felony convictions.

Hobbs Act robbery is a valid ACCA predicate.

Vacated and remanded to determine if the acceptance of responsibility sentencing reduction was inappropriately denied due to the interstate commerce challenge.

USA v. Tuan Luong

Seventh Circuit: USA v. Marcus Durham

No clear error where the revocation sentence is above advisory guidelines, and the court remarks that such increase is fair under the guidelines where the original sentence was varied downward, but the original sentence was lowered due to retroactive amendments to the guidelines rather than discretion, and no timely objection is made at revocation sentencing.

No substantive error under these facts where double guidelines revocation sentence is under the statutory maximum.

Concur: Extensive colloquy reveals court perhaps misunderstood its own authority, nonetheless, it had the authority to impose an above-guidelines revocation sentence.

USA v.  Marcus Durham

Seventh Circuit: Janet Kotaska v. Federal Express Corporation

Where an essential qualification for employment specifies a range of weight up to a certain amount, a showing of the genuine issue for trial on the maximum amount does not mean that there isn't a genuine issue of fact about whether the plaintiff's capabilities in the range beneath the maximum amount were insufficient.

A showing of capable engagement in the task for three weeks is insufficient to establish that all essential qualifications were met.

Where an employer unknowingly rehires after a year, the initial termination is sufficient nondiscriminatory reason for a second termination.

Dissent: ADA plaintiffs shouldn't have the burden of production for the essential qualifications for the task.  Circuit split flagged.  Summary judgment inappropriate where plaintiff has dispelled initial defense theory.   Second termination letter actually discussed protected conduct.

Janet Kotaska v.  Federal Express Corporation

Sixth Circuit: John George v. Youngstown State Univ.

Where the alleged retaliation under Title VII does not immediately follow the protected conduct, but there is a logical reason for the delay, a genuine issue of material fact can arise for trial.

Two contrasting theories of budgetary circumstances can offer a genuine issue for trial as to pretext for the adverse employment action.

Sufficient evidence in the record for trial on non-rehiring claim; other party's waiver of administrative exhaustion in arguing merits becomes law of the case for appeals.

Dissent: Only relevant temporal factor in stating a case for retaliation is the date the employer learns of the protected conduct; facts don't state a case for retaliation generally.

John George v. Youngstown State Univ. 

Sixth Circuit: Eric Dotson v. Gregory Kizziah

Where the Federal court sentence is silent as to whether it is concurrent or consecutive with state imprisonment terms imposed in the future, the Bureau of Prisons placement in a state or federal facility controls whether the Federal sentence is consecutive or concurrent with those future terms.

Eric Dotson v. Gregory Kizziah

Sixth Circuit: In re Franklin Harris, Jr.

Bankruptcy court correctly dismissed post-stay adversary suit on grounds of abstention, as the state court adverse possession claim underlying the adversary proceeding was better addressed in state court, the res wasn't part of the estate, and the plaintiffs in the state court proceeding were not involved in the bankruptcy case.

In re Franklin Harris, Jr.

Sixth Circuit: United States v. Dwight Barber

Where the movant has an opportunity to address resentencing considerations, it is not plain error for the resentencing court not to raise post-conviction conduct.  

Procedurally, resentencing court sufficiently explained reasoning.

United States v. Dwight Barber

Sixth Circuit: United States v. Michael Bourquin

Government sentencing memorandum reciting multi-agency response was insufficient for sentencing bump for expenditure of funds, as there must either be a full accounting, or a partial accounting and sufficient facts for the court to reason a full accounting; gov't should not be allowed to amend memorandum on remand.

United States v. Michael Bourquin 

Sixth Circuit: Ralph Carusone v. Warden

Lack of disclosure of medical report plainly discrediting the primary theory of the offense resulted a reasonable probability of a different outcome under Brady, as the second theory of the offense used by the District Court to deny the Writ was not endorsed in full by any expert at trial.

Ralph Carusone v. Warden

Fifth Circuit: USA v. Selene Suarez

Where the indictment alleges financial structuring of an amount precisely equal to the statutory limit, the defect is harmless error where the jury might rationally find that related events proved at trial established that an amount greater than the statutory limit was at issue.

Where an employee engages in a course of conduct of structuring bank deposits in furtherance of the employer's illegal scheme, a forfeiture order against the employee personally does not implicate the Excessive Fines clause if the amount is below the statutory maximum and the Guidelines limit.

USA v. Selene Suarez

Third Circuit: Plastic Surgery Center, P.A. v. Aetna Life Insurance Co

ERISA does not preempt state contract law as to claims by an out of network provider where the agreement with the provider only references the Plan for terms of payment, the reference is discernible in a cursory review, and no further construction of the plan is necessary to resolve the claim.

Court's subsequent construction of the plan to set damages in the legal action does not implicate this enmeshment consideration.

Similarly, express requirement for preapproval of procedures merely means that the out-of-network contract happens against the backdrop of the plan.

Where the contract is between the Plan and an out-of-network provider, it implicates a relationship that the Plan was never intended to govern, and therefore is not in connection with the Plan.

As judicial resolution of the claims addresses freestanding claims between the parties and not Plan benefits, it is not in connection with the plan; this accords with statutory purpose.

Unjust enrichment claims, on the other hand, are in connection with the Plan, as they implicate the Administrator's duties to the participants.

Plastic Surgery Center, P.A. v. Aetna Life Insurance Co

First Circuit: Waithaka v. Amazon.com, Inc.

Intra-state delivery drivers routinely carrying interstate parcels for a company engaged in interstate commerce are sufficiently engaged in interstate commerce to qualify for the exception to the Arbitration Act, given the interpretation of a parallel statute -- the narrow reading of arbitration exceptions and legislative history to the contrary are both answered within the precedent.

Where the express choice of a certain law for the arbitration provisions in a contract is severed in judicial review according to the severability provisions of the contract, the law identified in he general choice of law provision of the contract instead controls the arbitration provisions.

Although class claim waivers in agreements covered by the Arbitration Act cannot be waived due to the state's public policy, where, as here, the agreement is within an exception to the Act, state public policy can make the waiver of class claims unenforceable.

As the conflicts rules of the forum state would oust the foreign law where it contradicted state public policy, the conflicts rules of the forum state that has identified the policy interest control.

Waithaka v. Amazon.com, Inc.

First Circuit: Caribbean Mgmt. Group, Inc. v. Erikon, LLC

District Court's denial of leave to execute the judgment was sufficiently final for appeal, as it finished the matter in the court below.

Doubt as to whether notice of appeal listing only the motion to reconsider but asking that the underlying order be vacated conferred sufficient jurisdiction to vacate the underlying order, even absent prejudice.

No abuse of discretion in District Court's equitable decision to deny the motion.

As there was no fundamental misapprehension of facts or law, similarly no abuse of discretion in the denial of the motion to reconsider.

Caribbean Mgmt. Group, Inc. v. Erikon, LLC