Ninth Circuit: Clifford Tindall v. First Solar Inc.

Where FRCP indicates abuse of discretion review, but the dismissal for not stating a claim would usually prompt de novo, circuit precedent compels a three-judge panel to review the claim for abuse of discretion.

Under Delaware law, the Board's role in financial disclosures and press releases is not a business judgment for the purposes of assessing demand futility, since the releases and disclosures are snapshots of past business decisions.  The correct test looks to general oversight.

Where a court denies leave to amend in a situation where it is usually granted absent prejudice, but the rule merely permits granting for good cause, there is no need to cite or discuss the rule, so long as there is no abuse of discretion of the good cause standard.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/13/17-15185.pdf

Eighth Circuit: Stuart Wright v. United States of America

Local rules mandate that the reply brief to a motion for summary judgment must be in a certain form, not that it must contest all statements of fact not waived.

Under law of the case, basketball player falsely arrested justified the subsequent restraint on his liberty by briefly backing away from the police; this presents no issue for trial.

As the arrest and detention were justified, no abuse of process.

Arrest and tasing midcourt did not rise to the level of assault, as the officers thought that they were arresting a dangerous person.

http://media.ca8.uscourts.gov/opndir/18/06/172274P.pdf

Eighth Circuit: Jonathan Ervin v. Michael Bowersox

State's use of a video at trial showing the invocation of previously waived Miranda rights in the course of an interrogation and references to the video in opening and closing statements were not an unreasonable application of clearly established federal law.

Factual determinations not unreasonable.

http://media.ca8.uscourts.gov/opndir/18/06/171743P.pdf

Eighth Circuit: United States v. Hosea Swopes

State statute is a valid ACCA predicate.

Per curiam, simple assertion of precedent.

http://media.ca8.uscourts.gov/opndir/18/06/161797P.pdf

Eighth Circuit: Jim Sciaroni v. Target Corporation

Class appropriately certified despite court's mistaken finding that class members without present injury would be entitled to a pro rata share of the remainder of the fund.

Class appropriately certified despite potential inter-class conflicts over later-arising harms from the data breach, since all class members suffered the same injury at the same time.

29% Fee award can appropriately be based on a total that includes administrative costs; fees not substantively unreasonable.

Settlement not unfair, despite alleged subtle signs of collusion.

http://media.ca8.uscourts.gov/opndir/18/06/153909P.pdf

Fifth Circuit: Esther White v. Cigna Group Insurance

Abuse of discretion for the Plan Administrator not to mention insurer's medical report asserting that the level of drug intoxication was impossible to determine given the tests run, withhold the report from discovery, and deny the claim.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30356-CV0.pdf

Fifth Circuit: USA v. Candido Hernandez-Avila

Given the recent holding of the US Supreme Court defining the age of consent for the general offense of statutory rape, the state statute is not a valid sentencing predicate, as the state statute is stricter, and a strict liability offense.

Government's post-briefing argument that the crime is a crime of violence under the instant provision of the sentencing guidelines refers to an earlier version of the guidelines with materially different language -- the older version cites crimes with a "substantial risk" of violence.

Contention that the sentence would be justified under another part of the guidelines is not properly before the court, as the question is simply whether the current sentence was correctly imposed.

http://www.ca5.uscourts.gov/opinions/pub/16/16-51009-CR0.pdf

Fifth Circuit: Edward Busby v. Lorie Davis, Director

Assertion of actual innocence in a second state Habeas that was dismissed summarily with an indication that the court did not reach the merits was not dismissed for procedural default, as the briefing indicates (which would at any rate be a reasonable ruling, since Federal courts are permitted to do such things), but for the alternate reason in the statute, namely that no reasonable juror would have accepted the claim.   As this alternate ground is not challenged, the state denial was not an unreasonable application of facts or federal law.

Second non-AEDPA federal Habeas asserting identical claims is denied on merits.

Ineffective Assistance claim based on direct appeal was not raised in initial state Habeas -- ineffective assistance in collateral proceedings is insufficient excuse for the default of claim, as there is no right to counsel at that stage.

No prejudice from ineffective assistance at trial.

http://www.ca5.uscourts.gov/opinions/pub/15/15-70008-CV0.pdf

Editorial note:  End the death penalty.

First Circuit: US v. Gonzalez-Negron

Souter, by designation.

No plain error in court's acceptance of plea for possession of a weapon in furtherance of a drug crime where the gun and the drugs were found in separate areas of the residence, given modificaitons to gun and gov't proffer to prove role in drug scheme.

No plain error in colloquy's omission of clarification of "in furtherance," as it is a plain term, and there was no showing that deft would have changed the plea.

http://media.ca1.uscourts.gov/pdf.opinions/17-1302P-01A.pdf

First Circuit: US v. Benitez-Beltran

Territory's crime of Attempted Murder is a valid predicate offense, since (1) Territory's definition of murder requires purposeful or knowing conduct, and the generic offense merely requires reckless indifference; and (2) the act or omission required for the attempt could be counted as the substantial step in furtherance, cf. MPC.

Government's mention of impermissible sentencing factors at sentencing was insufficient to establish that the court relied on them in sentencing.

No substantive error in upward variance, as court developed a theory of recidivism; no error in court's using arguments offered in mitigation as factors weighing in favor of a higher sentence, given the concern with recidivism.

No substantive error for a ten-year felon-in-possession sentence to be served consecutively to the existing 90 year sentence for aggravated robbery.

http://media.ca1.uscourts.gov/pdf.opinions/17-1161P-01A.pdf

First Circuit: US v. Serrano-Acevedo

Insufficient articulable grounds for a protective sweep where two armed men robbed a bank, and both had been detained prior to the sweep through the house.

Subsequent consent to search was tainted by the fruits of the sweep.

Court's instruction sufficient to cure in-court statement by police officer saying that the robbers had been identified to him by name by an informant.

Other hearsay harmless. 


http://media.ca1.uscourts.gov/pdf.opinions/16-2009P-01A.pdf

First Circuit: US v. Tanco-Pizarro

In a revocation of supervised release proceeding, challenges raised for the first time in a motion to reconsider the sentence are not preserved for appeal.

Absent a showing of potentially exculpatory evidence, no plain error in denial of discovery and continuance in revocation hearing, given indictment handed down in a parallel proceeding,.

No plain error in considering the magnitude of the offense and the need for just punishment in the revocation proceeding, as they speak to the magnitude of the breach of trust in the parole violation.

Prior compliance with parole waived for not being raised below.

No plain error in an upward variance five times the upper limit of the range, as adequately discussed at sentencing.

Substantively, no abuse of discretion in the sentence, as it's not implausible or indefensible.

http://media.ca1.uscourts.gov/pdf.opinions/15-2388P-01A.pdf

Tenth Circuit: Perry v. Durborow

Challenges to questions of fact in interlocutory petition for relief seeking qualified immunity do not remove jurisdiction where counsel stipulates to the facts at issue during spoken arguments.

Qualified immunity for supervisory liability of detainee rape, as a general prohibition on deliberate indifference to sexual abuse didn't sufficiently prohibit supervision of a facility where male guards encountered female prisoners outside the view of security cameras.

https://www.ca10.uscourts.gov/opinions/17/17-5023.pdf

Ninth Circuit: Guilliermo Gomez-Sanchez v. Jefferson B. Sessions III

Amended opinion.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/12/14-72506.pdf

Eighth Circuit: Mary Brazil v. Arkansas Dept of Human Service

In a suit alleging discrimination in employment practices, a material change in the plaintiff's working situation moots a claim of retaliation that seeks injunctive relief where there is only a speculative possibility that the employee might be transferred back to her old position.

http://media.ca8.uscourts.gov/opndir/18/06/172229P.pdf

Eighth Circuit: Leslie Grussing v. Orthopedic and Sports Medicine

No error in trial court's refusal to allow questioning of an expert on a line of inquiry that had been established by another witness.

In a diversity action, federal law governs the review of counsel statements in closing arguments.

Given curative instruction, deft counsel's mis-characterization of the burden of proof was not plainly injurious.

http://media.ca8.uscourts.gov/opndir/18/06/172228P.pdf

Eighth Circuit: Missourians for Fiscal, etc. v. James Klahr

State law prohibiting the formation of political committees after 30 days before an election is subject to strict scrutiny, as the law speaks to formation, a precondition for speech, and not disclosure.

The law is overbroad, as citizens might have cause to speak within the prohibited window, there are subsequent reporting requirements closer to the election, and past practice of the agency in merely imposing a $1,000 fine does not save the act.

http://media.ca8.uscourts.gov/opndir/18/06/171314P.pdf

Eighth Circuit: In re Sealed Case

Where a court varies downward from a statutory maximum which is beneath the published guidelines range and the sentence is later further reduced on the government's motion, the sentence is not sufficiently based on the published range to merit relief after subsequent changes to that range.

http://media.ca8.uscourts.gov/opndir/18/06/164456P.pdf

Seventh Circuit: USA v. Todd Dyer

Where deft challenges plea at trial by asserting grounds of innocence, an appellate challenge to the plea on other grounds is reviewed for plain error.

No plain error in magistrate's acceptance of plea where deft made one or two word answers in colloquy and court did not inquire into possible bipolar disorder.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-13/C:17-1776:J:PerCuriam:aut:T:fnOp:N:2169817:S:0

Sixth Circuit: Acosta v. Cathedral Buffet Inc.

Following reversal and remand, the appellate court should refrain from granting leave to file a motion at the Circuit level for fees under the statute; the District Court is better positioned to judge the matter.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0112p-06.pdf