Eighth Circuit: Tom Magee v. Benjamin Harris

 

As the mail carrier's errand for a friend arose from a personal motive and wasn't fairly and naturally incident to his duties, the state law presumption of  acting within the scope of employment when driving a vehicle owned by the employer was sufficiently rebutted.  

Although there was no written policy forbidding it, the policies incorporate managerial directives, and the manager's testimony that such a break was forbidden sufficiently supports the court's determination that the detour was unauthorized.  

Driving to the store for a friend's dog food was of a sufficiently marked and decided character to take the mail carrier outside the scope of their employment.  Returning to the break place did not return the carrier to the scope of employment, as the employee must return to the point of deviation or to a place where he should be located inthe performance of his duties.  

Scope of employment is a threshold question under the act, and does not require jury determination as part of the merits.

https://ecf.ca8.uscourts.gov/opndir/21/08/202590P.pdf

Eight Circuit: Alvin Jackson v. Dexter Payne

 When assessing petitioner's mental capability, lack of detail on childhood tests is insufficient to establish that the childhood tests should not be relied upo, with the appropriate fixed margin of error.

Where the low end of the IQ scores is within the defined range, consideration of the second factor is the test is compulsory; a borderline test number can't be offset by other factors.

Court did not clearly err in considering childhood data, as petitioner has been incarcerated for most of his adult life.  Adaptive strengths, particularly within the controlled environent of prison, are not necessarily relevant to the consideration of adaptive deficits.

Supreme Court precedeent prohibits capital punishment where the intellectual disability exists at time of execution.

DISSENT

Adaptive strengths developed in prison are relevant to the inquiry.  Data insufficient to carry the petitioner's burden of proving disability; court shifted burden sub silentio.  State statute also has a presumption against petitioner, requiring him to prove unconstitutionality.

http://media.ca8.uscourts.gov/opndir/21/08/201830P.pdf

Eight Circuit: Awil Mohamed v. Merrick B. Garland

 

Where there is a thresold event necessary for the violence that petitioner claims would result from deportation, the court should consider the sequence of events, rather than the risk factors in the aggregate.

Board did not impermissably find facts when pointing out that, given the situation in the country, the probablility of the adverse events occuring was low.

For purposes of the statute, a government unable but not unwilling to stop the torture does not acquiesce in it.

DISSENT

Considering the risk factors in the aggregate is consistent with governing law.  Board found facts, and they don't necessarily establish that it isn't more likely than not that petitioner will be tortured.

http://media.ca8.uscourts.gov/opndir/21/08/201829P.pdf

Seventh Circuit: USA v. Jesus Beltran-Leon

For purposes of the sentencing factor, torture by arresting third-party state isn't sufficient basis to justify lack of cooperation with US investigations.

Proceedural explanation of sentence was sufficient; there is no need to march through all the different staturory factors and arguments.

Explanation of sentence was sufficiently comprehensive to dispel the suggestion that discussions of ethnicties shared with the judge impermissibly factored into sentencing.

Lack of contemporaneous objection forfeited claim that judge based sentence in part on a news report of country conditions that was outside the record and not made available to the parties.

Court's invitation to the deft to testify at sentencing as to the contents of an affidavit did not create a presumption of adverse inference when deft refused to take stand.

No plain error in judge's non-recusal after discussion of shared ethnicity.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-13/C:19-2615:J:Rovner:aut:T:fnOp:N:2747532:S:0

Seventh Circuit: USA v. Elijah Vines

Expert testimony of federal investigator on the recalcitrance of victims wasn't an abuse of discretion or beyond the rule, since it was from experience and did not directly address the credibility of any witness.

Identification of deft from Facebook photo after victim provided name and the information that deft had a Facebook account was not an unduly suggestive photo identificaiotn, given the lack of police arrangement.

Phone voluntarily provided by a third party without access to its passcode could lawfully be searched under a subsequent warrant, since the third party held a valid possessory interest in the phone seperate from the privay interest in the data inside the phone.  Analogy to a locked safe discussed in circuit precedent.

No clear error in denial of Franks hearing due to claimed misstatements supporting the warrant affidavit, as warrant had independent basis of probable cause apart from that testimony.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-13/C:19-2316:J:Rovner:aut:T:fnOp:N:2747530:S:0

Second Circuit: Sacerdote v. New York University

Fiduciary's purchase of retail class shares rather than institutional class shares in 63 of 103 funds states an ERISA claim under duty of prudence. The subsequent finding of prudent revenue sharing doesn't make the error harmless.  Deft has burden to establish that the losses didn't flow from the imprudent acts.

Refusal of discretionary leave to amend under Rule 16  was an abuse of discretion, since the scheduling order only listed the date beyond which amendments of right would not be timely.  Denial of leave to amend prejudiced post-trial motions.  

Lack of timely response to motion to strike jury trial demand was sufficient waiver.

Trial court's use of written direct testimony is not per se an abuse of discretion.

No clear error in rejeciton of claim that the Plan should have consolidated its record-keeping, given the testimony on IT difficulties.

No clear error in discrediting expert testimony on fund benchmarking.

Judge was not disqualified from presiding by the implicaitons of the fact that she left the bench six months later to re-join a law firm whose chairman, her mentor, is on the University's Board of Trustees.

DISSENT IN PART:

Since retail class share enable revenue sharing to offset recordkeeping costs, no error in dismissal of claim of breach of duty of prudence in opting for retail rather than institutional class shares; the fiduciary followed a sufficiently deliberative process.  Scheduling order setting date beyond which pleadings can;t be amended without leave is sufficient to indicate that in the normal course, no pleadings may be amended.

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/1/doc/18-2707_complete_opinion.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/1/hilite/

Second Circuit: United States v. Weaver

 

Fourth Amendment, 161 pp. en banc.

Directive to stand in a place where a frisk would be possible doesn't commence a search, as there was no invasion of a private and constitutionally protected area due to physical trespass or a reasonable expectation of privacy.

Although the seizure in the the Fourth Amendment commenced when the deft reasonably believed that he was not free to leave, the subjective beliefs of the deft doesn't enter into the question of when a search commences.

Similarly, a police officer's subjective intentions do not enter into the determination of when a search has commenced.  There might have been many reasons for the police officer to tell the deft to stand in a certain place.

Deft's hitching of pants, combined with a statement that there was nothing in them that might be weighting them down, was sufficiently furtive; officer is not required to dispel the possibility that the weight was non-threatening contraband.  Deft's conduct, coupled with the behaviour of others in the car, deft's earlier actions, and the location of the stop were sufficient articulable bases for the Terry stop and pat-down.

CONCURRENCE IN THE JUDGMENT, joined by a PARTIAL CONCURRENCE:

Search did not commence until actual pat-down, rather than at the command to stand with feet widely apart.  Circuit precedent requiring a hypothetical test under th same facts, but changing the race of the deft remains good law.  Unless the characterization of "high crime area" is supported by recent and relevant hard data describing a circumscribed area, the characterization usually defers inappropriately to the judgment of the officer.  When's categorical removal of subjective intent from the suppression calculus in favor of a possible subsequent S1983 remedy risks allowing stops with clear evidence of racial discrimination.  Legislatures should directly regulate police conduct, rather than deferring to courts' Fourth Amendment scrutiny.

DISSENT

(Refers to police officers by first name throughout.)

The hitching of the pants was with one hand, and not in a distinctive manner; the officer must have the reasonable suspicion that the objct is dangerous.  Defts repeated compliance with positioning commands and the constant visibility of defts habnds meant that there was insufficient reasonable suspicion from the time after exiting the car, and that earlier suspicions hould have dissipated.  Supreme Court has never held that officers have no obligation to consider alternative explanations for potentially suspicios behaviour.  Reasonable suspicion is an individualized inquiry, placing th behaviour of the other passengers outside the calculus.  Looking at an unmarked car does not constitute counter-surveillance of police activity.  An officer's direction to assume a "spread eagle position" commences a search and requires a reasonable suspicion that the peson being searched is armed and dangerous; it is an order that allows the touching to take place.   Subjective belief of the person being searched as to the beginning of that search is relevant to the reasonable expectation of privacy that defines the search.  Whren risks pretextual and discriminatory stops.

DISSENT

Current Fourth Amendment law encourages deference to police, and then arbitrary distinctions between the deft and other members of society to justify the conclusions of the police.  Exclusionary rule has become a disaster, allows incremental erosion of the right throgh cognitive bias.  Whren encourages pretextual stops and leads to stereotyping.  Command to stand "spread eagled" exceeded permissible bounds of the traffic stop and direction to exit car; it was an additional seizure, and the additional seizure required an additional showing of reasonable suspicion of criminal activity afoot and that the person being seized was armed and dangerous.  Not considering this is contrary to Supreme Court and circuit precedent.  Whren doesn't foreclose considering the offier's discriminatory intent in making the stop where relevant to the officer's characterizations of the justifications for the stop.  Would remand to consider this.  

DISSENT

Stop was pretextual, search was unreasonable.  Officers repeately noted defts race in contemporaneous accounts.  

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/2/doc/18-1697_complete_opinion.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/2/hilite/

Second Circuit: Div. 1181 Amalgamated Transit Union-New York Emps. Pension Fund v. New York Dept of Education

 

Municipality that contracts with outside corporations isn't liable under ERISA for fund contributions, as contributions aren't required in the contracts or in the Fund's governing documents.  Munciplaity's requirement that contractors hire according to municipality's seniority lists and follow municipality's wage and labor rules constituted neither an ERISA pension agreement or CBA, nor is the munipality a fiduciary or liable due to having participated in prohibited transactions.

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/3/doc/20-4012_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/3/hilite/

First Circuit: Sundaram v. Briry, LLC

 

Disbursements by the trustee of assets of the estate  prior to the confirmation of the plan and prior to the dismissal of the bankruptcy case cannot be revisited in a subsequent Article III challenge.  Since the claim attempts to revisit the organization of the estate, the claim is now moot, and statutes and common law rules allowing challenges to erroneous disbursements require that the funds be in the possession of the trustee at the time that the bankruptcy case is dismissed.

http://media.ca1.uscourts.gov/pdf.opinions/20-9008P-01A.pdf

First Circuit: Segarra Miranda v. Banco Popular de Puerto Rico

 

Erratum.

http://media.ca1.uscourts.gov/pdf.opinions/20-9006E-01A.pdf

First Circuit: US v. Martinez

 For safety-valve relief in sentencing after a conviction for conspiracy, the relevant conduct that must have been disclosed to authorities prior to sentencing includes all conduct in furtherance of the conspiracy, including that of all conspirators, charged and uncharged.

Threat of retribution insufficient to justify concealment of relevant knowledge of the crime.

http://media.ca1.uscourts.gov/pdf.opinions/19-1667P-01A.pdf

Hiatus now

 

Returning to the academic and job search dojo for a bit.  Good to get a couple weeks (234 decisions) of batting practice in.  Still a going concern, and my goal is to accomplish the summaries in one or two hours every weekday morning.  

But now, there's a large stack of books on the desk.  Cheers.

CB

Federal Circuit: In Re The Board of Trustees

 

Claim is ineligible for patent, because it recites abstract mathematical concepts without practical technological improvements beyond increasing statistical accuracy, and, taken as a whole, is embodied as well-known, routine and conventional actions of performing an algorithm on a computer.

(Perhaps.  We don't know many things, but we especially don't know Patents.)

 In Re The Board of Trustees

Federal Circuit: Vollono v. McDonough

 

As the statutory bar to receiving duplicate funding doesn't look to current eligibility status, a veteran who received funding through one program and therefore chose to forgo another funding source can't later seek to receive the second funding after the eligibility for the first was determined to be erroneous, though non-recoupable.

Vollono v. McDonough

Eleventh Circuit: Travis D. Turner v. Secretary, Department of Corrections, et al.

Habeas petitioner filing after the statutory cutoff on a form filing where the untimeliness was facially apparent had an opportunity to challenge the propriety of the court's taking judicial notice of the dates on the state's docket for their convictions by having leave to reopen at the district court level to argue error, equitable tolling, or actual innocence.  Court did not abuse its discretion in initially dismissing the petition as untimely without a reply brief or magistrate's review.

 

Travis D. Turner v. Secretary, Department of Corrections, et al.

Ninth Circuit: East Bay Sanctuary Covenant v. Joseph Biden

 

Amended opinion, Concurrences and Dissents from Denial of En Banc.

CONCURRING WITH DENIAL OF EN BANC:

Sufficient injury to the organization for standing.

Substance and revision of opinion congruent with usual en banc process.

DISSENT FROM DENIAL OF EN BANC:

Court is not a Platonic Guardian of the Constitution and laws.

The organizations did not sustain sufficient injury for standing, since the statute doesn't make it more difficult to provide legal services to immigrants.  Redirection of resources and diminished client pool are insufficient.

Generally, the statute holds that anyone can apply for asylum, but gives the Executive discretion as to whether to grant it.  Panel conflates the right to apply with the right to receive.

DISSENT FROM DENIAL OF EN BANC:

Published motions panel opinions are precedential, and make law of the case.  

East Bay Sanctuary Covenant v. Joseph Biden

Ninth Circuit: George Young, Jr. v. State of Hawaii

 

(En Banc, 215 pp.)

Pro se plaintiff's claim that never explicitly makes the as-applied challenge is correctly read as a facial challenge, since the briefing and argument was conducted with the assistance of counsel.

(Extensive list of English statutes and edicts made against the carrying of (fire)arms from the 14c. onward.)

Colonial history suggests early American acquiescence to firearms limitations outlined in the Statute of Northampton.

Early state enactments generally held that firearms small enough to be concealed could be kept from the public square.

State courts & treatises inconclusive, but generally recognize the government's power to regulate.

The government may regulate, and even prohibit, in public places the open carrying of small arms or arms capable of being concealed.  This does not impede the protection of homes or businesses.  It is peculiarly the duty of the state to defend the public square.  The states assumed primary responsibility for maintaining the king's peace.  

Exceptions to regulations were made for persons, places.  Surety operated not as a minor penalty but as a strong discincentive to carry arms.

That handguns may be used for defense does not change their threat to the king's peace.  The mere presence of such weapons creates terror in the public space.  Hawaii's statute makes provision for public officers, hunters and recreational users, and those with a legitimate cause for fear.

Single-officer approval regulatory scheme is not subject to challenge by prior restraint, as the regulations are not presumptively invalid.

Procedural due process claim is speculative, since no licence has yet been denied.

DISSENT: 

Unprecedented and extreme holding.  First circuit to hold that carrying a weapon in public falls outside of the protections of the Amendment.

Plain text of the Amendment requires right to carry arms.  19 c. State caselaw and federal legislation recognized the right to carry arms.

Statute of Northampton allowed carrying of common arms, not for the purpose of terror.  English law was more restrictive of the right to carry arms than was the American.  Surety was only actually invoked in extreme cases, implicitly legitimating the norm of peaceably carrying weapons. 

"Weapons capable of being concealed" is a novel standard.  Heller explicitly contemplates self-defense as a legitimate reason.  The responsibility for keeping the peace lies with the people, not with the states.

The right openly to carry arms is within the core of the Amendment.  As the regulation destroys the right, it is necessarily unconstitutional.

Pro se complaint should be construed as an as-applied challenge to the enforcement against the plaintiff.

DISSENT:

Should be either construed as as-applied, or allowed to amend. County regulations limiting licenses to working security guards are facially unconstitutional.

George Young, Jr. v. State of Hawaii

Ninth Circuit: USA v. Jane Boyd

 

Statute that allows for penalties for any violation of a certain section does not permit multiple penalties for multiple aspects of the violation of a single obligation, but rather establishes that any of the violations specified in the statute and associated regulations are subject to the penalty.

Materially similar provision for willful violations of the same obligation that allows for multiple penalties cuts against the idea that multiple penalties should be allowed in the section of the statute that doesn't explicitly mention them.

Tax statutes should be strictly constructed where they impose an obligation.

DISSENT:

The reporting requirement is a procedural element, but the substance of the statute is that each of the foreign bank accounts should be reported.

The use of "violation" as defined by its context in the similar provision establishes that the term should have that definition throughout the statute. 

Majority's reading is not strict, but strained.

USA v. Jane Boyd

Ninth Circuit: Wilber Acevedo Granado v. Merrick Garland

 

In ruling the proposed social group insufficiently particular, the IJ erred in not considering the clinical definition of people with intellectual disabilities; the common law definition does not necessarily control.

Although the proposed group of people with intellectual disabilities might commonly be mixed with people with mental illness generally, the relevant question for social distinctiveness is whether the difference can be discerned sufficiently for that subset to face increased persecution.  Discrimination based on the manifest symptoms is equivalent to discrimination against the group.

Proposed second social group was insufficiently responded to by the agency, and its rejection was insufficiently reasoned by the IJ.

Petitioner's claim of risk of torture insufficient under the Convention, since the attacks by police are cases of mistaken identity, and maltreatment by the medical workers because of overcrowding and lack of knowledge.

Wilber Acevedo Granado v. Merrick Garland

Eighth Circuit: United States v. Stacy Lyman

 

As the petitioner was sufficiently represented by counsel during the earlier criminal proceedings that resulted in the predicate convictions, claiming that the charging documents allege a mental state different from that of the offense charged is an impermissible collateral attack from a second forum.

Court did not plainly err in holding that no mental state was required for the predicate serious drug offenses under the statute.

 United States  v.  Stacy Lyman