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.
Fifth Circuit: USA v. Ezell Brown, Jr.
Common-law rule holding that the place where the lender received he false statement establishes venue is inconsistent with the rule that the location of the crime is to be determined by the nature of the crime and the location of the acts.
Where the indictment alleges fraud in the supporting documents and the theory of the case becomes fraud in the application itself, there is no constructive amendment, since the offense as alleged included fraudulent verification of supporting documents at closing.
There is no requirement to establish that the fraudulent statement affected the lending decision; rather, it need only have a natural tendency to influence such a decision.
Reference in closing to truth-seeking role of the finder of fact did not dilute the required standard of proof.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40740-CR0.pdf
Fourth Circuit: Sierra Club v. National Park Service
As claim arises under 2005 amendment, state statute of limitations isn't borrowed; general four-year federal rule applies.
Agency cannot claim lack of time as a basis for holding that numerical take limits are impractical.
Vague and unenforceable take limits were arbitrary and capricious.
http://www.ca4.uscourts.gov/opinions/181082.P.pdf
Agency cannot claim lack of time as a basis for holding that numerical take limits are impractical.
Vague and unenforceable take limits were arbitrary and capricious.
http://www.ca4.uscourts.gov/opinions/181082.P.pdf
Third Circuit: USA v. Roy Green
Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague did not announce a new constitutional rule that would justify the appeal of sentences under any compulsory residual sentencing scheme; this is established in part by the subsequent holding of the Court that advisory residual sentencing schemes are not unconstitutionally vague. Circuit split flagged.
http://www2.ca3.uscourts.gov/opinarch/172906p.pdf
http://www2.ca3.uscourts.gov/opinarch/172906p.pdf
Second Circuit: United States v. Sampson
As the embezzlement statute requires conversion with intent, summary judgment for the deft based on the statute of limitations was error -- the intent to deprive can arise after the inappropriate withholding. Discovery under the FRCrimPro does not require the government to make a proffer of when such intent arises.
Claims about the theory of the made during liminal proceedings do not estop the government's right to make other assertions at trial. Theory of indictment claiming that the statewide state supreme court was a single agency is sufficiently supported by state court rulings and the state constitution. Where the appointment as referee has no firm ending date, whether the deft was acting in that capacity presents a question for trial.
http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/3/doc/15-2869_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/3/hilite/
Second Circuit: Anderson News, L.L.C. v. American Media, Inc.
Publishers' refusals to deal with middleman distributor were insufficiently close in time to be parallel conduct; statements seeming to indicate a common plan are susceptible of more innocent readings. As a matter of law, finder of fact could not have found beyond a reasonable doubt that the economically implausible refusal to deal had been established by the evidence.
http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/doc/15-2714_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/doc/15-2714_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/hilite/
First Circuit: US v. Sirois
There is not sufficient binding precedent to clearly establish that revocation of supervised release because of drug use violates the Eighth Amendment; revocation was therefore not plain error.
http://media.ca1.uscourts.gov/pdf.opinions/17-1797P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1797P-01A.pdf
First Circuit: Del Grosso v. Surface Transportation Board
Sufficient evidence for Board finding that packing process is part of the transportation process.
Board's decision that removal of damaged elements of fungible bulk cargo was a part of the transportation process was not arbitrary or capricious.
http://media.ca1.uscourts.gov/pdf.opinions/17-1794P-01A.pdf
Board's decision that removal of damaged elements of fungible bulk cargo was a part of the transportation process was not arbitrary or capricious.
http://media.ca1.uscourts.gov/pdf.opinions/17-1794P-01A.pdf
First Circuit: US v. Acevedo-Hernandez
Sufficient evidence for conspiracy.
In case of alleged judicial bribery, referring to the injustice of the underlying proceeding in opening and closing statements of the bribery trial would not be sufficiently plain error to justify reversal.
Even if evidence was more prejudical than probative, harmless error, given the weight of the evidence.
As co-conspirator would have been subject to a wide variety of challenges on cross-examination, court's granting of 5th amendment privilege as to questions that did not directly jeopardize the co-deft was not a violation of the Sixth Amendment right to compulsory process.
Any sentencing errors harmless. No cumulative error.
http://media.ca1.uscourts.gov/pdf.opinions/15-1763P-01A.pdf
In case of alleged judicial bribery, referring to the injustice of the underlying proceeding in opening and closing statements of the bribery trial would not be sufficiently plain error to justify reversal.
Even if evidence was more prejudical than probative, harmless error, given the weight of the evidence.
As co-conspirator would have been subject to a wide variety of challenges on cross-examination, court's granting of 5th amendment privilege as to questions that did not directly jeopardize the co-deft was not a violation of the Sixth Amendment right to compulsory process.
Any sentencing errors harmless. No cumulative error.
http://media.ca1.uscourts.gov/pdf.opinions/15-1763P-01A.pdf
Brief hiatus
Conference paper, dissertation, philosophical thinkin' to be done. Busy, back soon.
-CB
-CB
Seventh Circuit: Kelly Chavez v. Nancy Berryhill
When a SSA ALJ accepts an estimate of available employment opportunities that relies on an extrapolation of known data across an entire market or geographical area without sufficient indicia of the extrapolation's reasoning, he or she impermissably shifts the burden of proof to the claimant, resulting in a determination that is not supported by substantial evidence.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-18/C:17-2978:J:Scudder:aut:T:fnOp:N:2188695:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-18/C:17-2978:J:Scudder:aut:T:fnOp:N:2188695:S:0
Sixth Circuit: Liz Lopez Moreno v. Jason Zank
When a parent allegedly wrongfully removes a child from a country after the allegedly wrongful removal of the child to that country by the other parent, given the purposes of the Convention, the first parent is precluded from asserting that the residence of the child in the country to which it had been removed at first was not their habitual residence; to preserve future claims under the Convention, the Convention remedy must be invoked, as opposed to self-help.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0147p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0147p-06.pdf
Sixth Circuit: United States v. Rashad Woodside
Remand for recalculation of drug amounts was a limited remand that did not require a new hearing, and was appropriately resolved by amending the opinion; deft's presence at earlier sentencing satisfied the statute. Amounts appropriately calculated by a preponderance.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0146p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0146p-06.pdf
Sixth Circuit: Linda Isaacs v. DBI-ASG Coinvestor Fund, III, LLC
Federal court cannot revisit state court foreclosure ruling holding that a facially problematic lien in fact attached, since vindicating the lien isn't barred by the shield of bankruptcy discharge; the discharge only protects from claims against the person. Further, Rooker-Feldman prohibits lower federal courts from hearing a state-adjudicated claim even where there is explicit statutory jurisdiction.
As state law holds that a mortgage is valid even absent perfection, a claim that the lien was perfected in violation of the stay can provide grounds for subsequent avoidance, since a federal court's determination that the interest wasn't perfected does not contradict the state court's holding that the mortgage was valid.
Statutorily, the second trustee acquired the necessary powers; equitably, the debtor's ex post acquisition of the derivative powers of the second trustee was an appropriate flexible remedy.
Amicus had another idea, but the parties didn't raise it, so it wasn't considered.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0145p-06.pdf
As state law holds that a mortgage is valid even absent perfection, a claim that the lien was perfected in violation of the stay can provide grounds for subsequent avoidance, since a federal court's determination that the interest wasn't perfected does not contradict the state court's holding that the mortgage was valid.
Statutorily, the second trustee acquired the necessary powers; equitably, the debtor's ex post acquisition of the derivative powers of the second trustee was an appropriate flexible remedy.
Amicus had another idea, but the parties didn't raise it, so it wasn't considered.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0145p-06.pdf
Third Circuit: Lea Augustin v. City of Philadelphia
Property owners have sufficient interest upon which a due process claim can arise when a municipality files a perfected utility lien against the property, as it can cloud the title and complicate the property's use and value.
As a matter of law, the minimal deprivation of property rights imposed by the lien, the relative lack of difficulty in correcting errors or monitoring third-party compliance, and the value of the gas provided satisfy the due process interests of the landlords.
http://www2.ca3.uscourts.gov/opinarch/171216p.pdf
As a matter of law, the minimal deprivation of property rights imposed by the lien, the relative lack of difficulty in correcting errors or monitoring third-party compliance, and the value of the gas provided satisfy the due process interests of the landlords.
http://www2.ca3.uscourts.gov/opinarch/171216p.pdf
Second Circuit: Huebner, et al. v. Midland Credit Mgmt., et al.
So long as the questions are not misleading or abusive, the Act permits a spoken inquiry as to the reason for disputing a debt.
Given the specificity of the first claim in the trial management phase, court did not abuse discretion for imposing procedural sanctions when it proved false.
No abuse of discretion in, prior to imposing sanction, not allowing amendment of filing that violated confidentiality order.
Sanctions for vexatious litigation did not abuse discretion; ordering payment of opponent's fees for motion that was only partially granted was within the court's discretion.
Sanctions under the Act and the court's inherent authority were appropriate.
http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/doc/16-2363_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/hilite/
Given the specificity of the first claim in the trial management phase, court did not abuse discretion for imposing procedural sanctions when it proved false.
No abuse of discretion in, prior to imposing sanction, not allowing amendment of filing that violated confidentiality order.
Sanctions for vexatious litigation did not abuse discretion; ordering payment of opponent's fees for motion that was only partially granted was within the court's discretion.
Sanctions under the Act and the court's inherent authority were appropriate.
http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/doc/16-2363_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/hilite/
First Circuit: Doe v. Brown University
Allegation of assault against a student at one university by students at a second university does not state a Title IX claim against the second university where the alleged victim has not and does not intend to avail himself or herself of the educational programs and services of the second university.
http://media.ca1.uscourts.gov/pdf.opinions/17-1941P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1941P-01A.pdf
First Circuit: US v. Romero
Defendants consent to inaccurate pre-sentencing report forfeited the argument, but did not waive the claim, and an undisputed error that affects the sentence rises to the level of plain error, requiring correction even when forfeited.
http://media.ca1.uscourts.gov/pdf.opinions/17-1702P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/17-1702P-01A.pdf
First Circuit: US v. Pinkham
Exception claiming that drug amount was miscalculated does not properly preserve a claim that the amount of drugs personally consumed by the deft should not have been included in the total.
Neither precedent nor lenity argues that the personal consumption of the deft should reduce the drug amount calculations for the conspiracy, as the deft's consumption is part of the scope of the conspiracy.
Given that the penalty for the prior conviction for driving without a licence is more similar to that for driving with a suspended licence than that for speeding, the present sentencing court did not plainly err in grouping it with offenses of the former category.
http://media.ca1.uscourts.gov/pdf.opinions/17-1664P-01A.pdf
Neither precedent nor lenity argues that the personal consumption of the deft should reduce the drug amount calculations for the conspiracy, as the deft's consumption is part of the scope of the conspiracy.
Given that the penalty for the prior conviction for driving without a licence is more similar to that for driving with a suspended licence than that for speeding, the present sentencing court did not plainly err in grouping it with offenses of the former category.
http://media.ca1.uscourts.gov/pdf.opinions/17-1664P-01A.pdf
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