Sentencing bump for commission of crime while under sentence was appropriate by the terms of the guidelines, since deft was on summary probation in contemplation of dismissal following a nolo contendere plea.
Leadership sentencing increase appropriate where deft own corporations engaged in the activity and employs admins; existence of other leaders is immaterial.
Within guidelines sentence substantively reasonable.
Forfeiture appropriate to any assets obtained through the crime; there is no need for the deft to have actually received the assets. Tension with S.Ct.U.S. holding on a parallel statute, circuit split flagged.
No plain error in court's acceptance of charge-off methodology and costs in the PSR.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0132p-06.pdf
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.
Sixth Circuit: Jodi Hohman v. Maurice Eadie
By the terms of the statute, taxpayers have a cause of action for improper collection activities, but not for improper assessment activities.
Although the natural persons and small partnerships holding a cause of action under the statute resemble LLCs, LLCs are not within the plain terms of the statute, and do not have a right to file suit.
Discovery properly limited.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0131p-06.pdf
Although the natural persons and small partnerships holding a cause of action under the statute resemble LLCs, LLCs are not within the plain terms of the statute, and do not have a right to file suit.
Discovery properly limited.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0131p-06.pdf
Third Circuit: Clientron Corp v. Devon IT Inc
As there was no showing that the misconduct benefited the defendants personally, District Court was correct in not piercing the corporate veil on a theory of sham, as corporate formalities should be considered differently with respect to closely held or family corporations.
As the discovery sanction against one spouse, holding that a corporation held by a tenancy by the entirety was in fact an alter ego, created a split between federal substantive law for the discovery sanction and state substantive law for the co-tenant by the entirety, it was an abuse of discretion. Under state law, both who hold by a tenancy of the entirety are presumed to act for the benefit of the marriage.
http://www2.ca3.uscourts.gov/opinarch/163432p.pdf
As the discovery sanction against one spouse, holding that a corporation held by a tenancy by the entirety was in fact an alter ego, created a split between federal substantive law for the discovery sanction and state substantive law for the co-tenant by the entirety, it was an abuse of discretion. Under state law, both who hold by a tenancy of the entirety are presumed to act for the benefit of the marriage.
http://www2.ca3.uscourts.gov/opinarch/163432p.pdf
Third Circuit: Ahmed Bakran v. Secretary
As the statute vests the determination of status in the agency and such action is statutorily unreviewable, supporting criteria developed by the agency are also unreviewable, as they are merely interpretive aspects of the determination.
As the felony conviction of the alien's spouse and sponsor does not impede the marriage, but merely the right of the spouse to live in the US, the right to marry is not affected; further, the question of residency is much broader, and the limitation of the rights of the sponsor following a felony conviction is a reasonable one.
As the statute that attached new limitations to the rights of those already convicted was clearly intended to apply to past convictions and referenced post-enactment dangers, there is no violation of Ex Post Facto; waived anyway.
http://www2.ca3.uscourts.gov/opinarch/163440p.pdf
As the felony conviction of the alien's spouse and sponsor does not impede the marriage, but merely the right of the spouse to live in the US, the right to marry is not affected; further, the question of residency is much broader, and the limitation of the rights of the sponsor following a felony conviction is a reasonable one.
As the statute that attached new limitations to the rights of those already convicted was clearly intended to apply to past convictions and referenced post-enactment dangers, there is no violation of Ex Post Facto; waived anyway.
http://www2.ca3.uscourts.gov/opinarch/163440p.pdf
Blog's Anniversary
On this date in 2011, in a Starbucks in midtown Manhattan, history was made. Admittedly, it was a very, very small event in history, but history nonetheless.
https://manhattanbarrister.blogspot.com/2011_07_05_archive.html
https://manhattanbarrister.blogspot.com/2011_07_05_archive.html
Ninth Circuit: Fleshman v. Volkswagen AG
Statute grants absolute right of intervention only to citizens who are barred from filing their own suit to enforce the law due tot he government's attempt to enforce that specific law.
As the government filed suit under the law regulating the devices, citizen suits seeking to enforce clean air laws are not barred, and the potential plaintiffs have no absolute right to intervene.
The present request to intervene seeks relief that is distinct from the government's relief; absent Article III standing (which can't be manufactured by simply seeking absolute compliance with the Act), the potential intervenor does not have an intervention of right.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17060.pdf
As the government filed suit under the law regulating the devices, citizen suits seeking to enforce clean air laws are not barred, and the potential plaintiffs have no absolute right to intervene.
The present request to intervene seeks relief that is distinct from the government's relief; absent Article III standing (which can't be manufactured by simply seeking absolute compliance with the Act), the potential intervenor does not have an intervention of right.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17060.pdf
Ninth Circuit: Wheeler v. City of Santa Clara
A sufficiently expansive state law of survivorship and intestate succession can bar an adopted natural child from asserting a S1983 claim, as there is no absolute right of succession implied by the purposes of the act.
Claims under the ADA and the RA are remedial in nature, not punitive; the statute-borrowing provisions of civil rights law are therefore inapplicable; there is no precedent under federal common law for allowing an adopted natural child to state a claim.
Absent a showing of a true parental relationship, an adopted natural child with a close relationship cannot state a claim under a Fourteenth Amendment liberty interest.
Court properly denied leave to amend, given relevant state statute of limitations, as nature of present claim doesn't hold the door open for relation-back.
Concurrence: Adopted children can establish a 14A claim.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17375.pdf
Claims under the ADA and the RA are remedial in nature, not punitive; the statute-borrowing provisions of civil rights law are therefore inapplicable; there is no precedent under federal common law for allowing an adopted natural child to state a claim.
Absent a showing of a true parental relationship, an adopted natural child with a close relationship cannot state a claim under a Fourteenth Amendment liberty interest.
Court properly denied leave to amend, given relevant state statute of limitations, as nature of present claim doesn't hold the door open for relation-back.
Concurrence: Adopted children can establish a 14A claim.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17375.pdf
Seventh Circuit: Ricardo Sanchez v. Jefferson B. Sessions III
Board's statement of a legal standard of probability suffices to establish a violation of the Fifth Amendment when considering the right to counsel in deportation proceedings where the correct standard is that of reasonable possibility of a different outcome.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-1673:J:Rovner:aut:T:fnOp:N:2181672:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-1673:J:Rovner:aut:T:fnOp:N:2181672:S:0
Seventh Circuit: Thomas Lovelace v. Todd McKenna
Court did not abuse its discretion in barring physician's record of statement that prison inmate asserted that the guards had beaten him, as it address the truth of the matter asserted, rather than the reason that treatment had been sought.
Witness' statement that he feared retribution from guards permissibly barred as more prejudicial than probative.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-1393:J:Kanne:aut:T:fnOp:N:2181083:S:0
Witness' statement that he feared retribution from guards permissibly barred as more prejudicial than probative.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-1393:J:Kanne:aut:T:fnOp:N:2181083:S:0
Seventh Circuit: Wisconsin Central Limited v. Tienergy, LLC
Unresolved third-party claims do not preclude an appeal of the final decision where the trial court has clearly signalled an intent to resolve any outstanding claims.
Federal law defining rail transport rates created an independent cause of action under the act.
Transporting company's lack of actual knowledge of manifest terms defining it as a consignee does not preclude statutory liability as a consignee where it is not in the business of transporting cargo and it retains all funds from the subsequent sale of the product.
No implicit scheme of contribution or agency existed that would shift the costs.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-2343:J:Barrett:aut:T:fnOp:N:2181198:S:0
Federal law defining rail transport rates created an independent cause of action under the act.
Transporting company's lack of actual knowledge of manifest terms defining it as a consignee does not preclude statutory liability as a consignee where it is not in the business of transporting cargo and it retains all funds from the subsequent sale of the product.
No implicit scheme of contribution or agency existed that would shift the costs.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-2343:J:Barrett:aut:T:fnOp:N:2181198:S:0
Fifth Circuit: USA v. Jesus Ledezma-Cepeda, et al
Court did not abuse its discretion in denying severance, as curative instruction sufficed to protect co-defendant from gruesome evidence against another defendant, despite mixture of questions at trial and the fact that his own attorney objected to some evidence against the other defendant.
http://www.ca5.uscourts.gov/opinions/pub/16/16-11731-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/16/16-11731-CR0.pdf
Fifth Circuit: US v. Simone Swenson
As the defense could have sought a continuance after last-minute disclosures, the putative bad faith and actual prejudice from prosecutorial discovery misconduct did not rise to the abhorrent level needed to justify dismissal with prejudice.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20131-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-20131-CR0.pdf
Fifth Circuit: Firefighters' Retirement Sys, et al v. Consulting
Prior assertion that the court did not have personal jurisdiction over them does not judicially estop the deft from invoking the protection in the state statute, as the court ultimately did not accept the challenge to jurisdiction.
Where there is a clear prerequisite for suit in the state statute that can only be waived by written agreement of the parties, a federal court can enforce the prerequisite requirement despite state precedent to the contrary, as the question becomes one of procedure, not of substantive law.
Under state law, contra non valentum does not apply to peremption periods.
Waiver of the peremption period for fraud requires specific intent to deceive.
Under state law, filing of suit does not toll the peremptive period for the prerequisite accounting review.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30274-CV0.pdf
Where there is a clear prerequisite for suit in the state statute that can only be waived by written agreement of the parties, a federal court can enforce the prerequisite requirement despite state precedent to the contrary, as the question becomes one of procedure, not of substantive law.
Under state law, contra non valentum does not apply to peremption periods.
Waiver of the peremption period for fraud requires specific intent to deceive.
Under state law, filing of suit does not toll the peremptive period for the prerequisite accounting review.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30274-CV0.pdf
Second Circuit: American Civil Liberties Union v. Department of Justice
Prevailing party who can demonstrate a likelihood of harm from an incidental disclosure in the court's decision has standing to seek appellate review of that decision as an aggrieved party.
Where the challenged dictum is not necessary to the holding and the government party to the case can advance a reasonably debatable argument for its falsity, there is a substantial possibility of material harms to the government's interests from disclosure, and the fact is available in publicly available sources, the court may redact the statement from the opinion.
http://www.ca2.uscourts.gov/decisions/isysquery/43875d78-c1de-461c-92e1-0df1db0fda59/1/doc/17-157_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/43875d78-c1de-461c-92e1-0df1db0fda59/1/hilite/
Where the challenged dictum is not necessary to the holding and the government party to the case can advance a reasonably debatable argument for its falsity, there is a substantial possibility of material harms to the government's interests from disclosure, and the fact is available in publicly available sources, the court may redact the statement from the opinion.
http://www.ca2.uscourts.gov/decisions/isysquery/43875d78-c1de-461c-92e1-0df1db0fda59/1/doc/17-157_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/43875d78-c1de-461c-92e1-0df1db0fda59/1/hilite/
Federal Circuit: PPC Broadband v. Director
Given the commercial success of the product (however limited) the Board should revisit the question of the obviousness of the springy-washer-thing.
(Again, we don't know many things. We especially don't know Patent. Entertainment purposes only, as always.)
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1362.Opinion.7-3-2018.pdf
(Again, we don't know many things. We especially don't know Patent. Entertainment purposes only, as always.)
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1362.Opinion.7-3-2018.pdf
DC Circuit: EIG Energy Fund XIV, L.P. v. Petroleo Brasileiro, S.A.
The domestic effects of the scheme were sufficient for jurisdiction under FISA, as damages were incurred before the foreign investors withdrew (which might have attenuated the causation), and the foreign locus of the investment vehicles used by the domestic investors does not preclude a finding of direct effects on the domestic investors.
https://www.cadc.uscourts.gov/internet/opinions.nsf/D7C9FB5343E0C109852582BF005095DA/$file/17-7067-1738941.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/D7C9FB5343E0C109852582BF005095DA/$file/17-7067-1738941.pdf
DC Circuit: Ho-Chunk, Inc. v. Jeff Sessions
Corporations incorporated under tribal law and wholly owned by the tribe are subject to the tobacco recordkeeping laws, as the reservations are within the states, and the act does not base its jurisdiction on a territorial determination.
Tribes and tribal instrumentalities are persons, given the Definitions Act.
DC Circuit: Republic of Argentina v. AWG Group Ltd
Arbitratrator on board of investment bank was not made evidentially partial to a party by the bank's substantial investments in it, as passive investing is distinct from an active business relationship, and the loans were an insignificant part of the bank's total portfolio.
Arbitrator's decisions on the merits were within the scope of the arbitration; finding not precluded by international conventions.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7B9299B6A47D2BBE852582BF005095A5/$file/16-7134-1738928.pdf
Arbitrator's decisions on the merits were within the scope of the arbitration; finding not precluded by international conventions.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7B9299B6A47D2BBE852582BF005095A5/$file/16-7134-1738928.pdf
DC Circuit: USA v. Franklin Torres
Sufficient circumstantial evidence from the photographs to establish that production of the photographs was a purposeful act.
Leading dispositve question to reticent victim was within the court's discretion.
Concur/dissent: The statute requires a severable, independent purpose of producing the photographs.
https://www.cadc.uscourts.gov/internet/opinions.nsf/17A4126212AF784D852582BF0050958A/$file/16-3078-1738916.pdf
Leading dispositve question to reticent victim was within the court's discretion.
Concur/dissent: The statute requires a severable, independent purpose of producing the photographs.
https://www.cadc.uscourts.gov/internet/opinions.nsf/17A4126212AF784D852582BF0050958A/$file/16-3078-1738916.pdf
DC Circuit: USA v. Carlos Aguiar
Insufficient prejudice from closing of voir dire to justify federal habeas.
Government's intent to increase the charges to a potential life sentence were clear and easily determined; a claim of ineffective assistance based on not advising the deft of this therefore justifies a hearing.
Partial dissent: no contemporaneous evidence that deft would have accepted the plea.
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