Ambiguity in state statute of Assault with Intent to Kill that seems to allow conviction for uncharged conduct, i.e., a potential future deadly assault rather than the charged non-deadly assault is, at most, an error of state law that does not rise to the level of a constitutional violation.
Dissent: Licit conviction for a crime that the deft did not commit rises to the level of extreme malfunction of the state criminal justice system.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0161p-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: Auburn Sales, Inc. v. Cypros Trading & Shipping, Inc.
State tortious interference claim requires the specific intent to interfere with the business relationship.
Even for a requirement or output contract, state statute of frauds requires a writing enforceable against the deft for any claim arising from the transaction.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0162p-06.pdf
Even for a requirement or output contract, state statute of frauds requires a writing enforceable against the deft for any claim arising from the transaction.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0162p-06.pdf
Sixth Circuit: EEOC v. Dolgencorp, LLC
Plaintiff gains the benefit of a longer statute of limitations on the federal claim by filing a state claim alleging discrimination, but not necessarily discrimination under the same theory as the federal claim.
Denial of request for a reasonable accommodation sufficed for discrimination -- plaintiff had no duty to request alternate accommodations.
Award of fees correct.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0163p-06.pdf
Denial of request for a reasonable accommodation sufficed for discrimination -- plaintiff had no duty to request alternate accommodations.
Award of fees correct.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0163p-06.pdf
Fifth Circuit: Hebbronville Lone Star Rentals, et al v. Sunbelt R
Arbitrators reformation of agreement for mutual mistake exceeded the bounds of its power, as the purchase agreement limited the scope of arbitration to calculation of specific sums, and the letter of engagement's reference to threshold levels did not empower the arbitrator to revisit the agreement that set the levels.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50613-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-50613-CV0.pdf
Third Circuit: USA v. Dominique Johnson
No plain error in the fact that the jury didn't decide the question of whether the weapon was brandished, an element of the increased sentence, since no reasonable finder of fact could have decided otherwise.
On remand from the Supreme Court, deft can raise claims arising from cases decided during the pendency of the direct appeal.
State crime of unarmed bank robbery is categorically a predicate crime of violence.
Although jury was erroneously instructed that accomplice liability attached for brandishing a firearm if the deft was aware of it at the time that it happened, error is insufficiently plain to justify reversal.
Where a deft is not advised that the later counseled brief supersedes the earlier pro se filing, the court can equitably consider arguments raised in the earlier filing.
Although a predicate was double-counted in the indictment, insufficiently plain error, as other predicate counts resulted in convictions.
Other challenges -- 10th Amendment, Commerce clause - sufficient evidence.
http://www2.ca3.uscourts.gov/opinarch/111615p.pdf
On remand from the Supreme Court, deft can raise claims arising from cases decided during the pendency of the direct appeal.
State crime of unarmed bank robbery is categorically a predicate crime of violence.
Although jury was erroneously instructed that accomplice liability attached for brandishing a firearm if the deft was aware of it at the time that it happened, error is insufficiently plain to justify reversal.
Where a deft is not advised that the later counseled brief supersedes the earlier pro se filing, the court can equitably consider arguments raised in the earlier filing.
Although a predicate was double-counted in the indictment, insufficiently plain error, as other predicate counts resulted in convictions.
Other challenges -- 10th Amendment, Commerce clause - sufficient evidence.
http://www2.ca3.uscourts.gov/opinarch/111615p.pdf
Third Circuit: Reading Health System v. Bear Stearns Co Inc.
As the claim for arbitration as a matter of right arises from the rules and not from the broker-dealer contract, the forum selection clause in the broker-dealer contract does not prevent a court of a different forum from determining the threshold question of the right to arbitration.
Forum selection clause in the contract does not implicitly waive the right to arbitration, as absent an explicit waiver in the contract, the presumption for arbitration and the enacted regulatory scheme favor the right.
http://www2.ca3.uscourts.gov/opinarch/164234p.pdf
Forum selection clause in the contract does not implicitly waive the right to arbitration, as absent an explicit waiver in the contract, the presumption for arbitration and the enacted regulatory scheme favor the right.
http://www2.ca3.uscourts.gov/opinarch/164234p.pdf
Third Circuit: Thomas St. Pierre v. Retrieval Masters Creditors Bureau
Disclosure of account information through mailing envelope window is a sufficiently concrete and particular intangible harm for standing.
Although incurring highway tolls was a consensual transaction, the primary purpose was not personal or household benefit, as the benefit provided by tolls is the maintenance of the roads. The debt therefore does not qualify under the Act.
http://www2.ca3.uscourts.gov/opinarch/171731p.pdf
Although incurring highway tolls was a consensual transaction, the primary purpose was not personal or household benefit, as the benefit provided by tolls is the maintenance of the roads. The debt therefore does not qualify under the Act.
http://www2.ca3.uscourts.gov/opinarch/171731p.pdf
Third Circuit: James Tepper v. Amos Financial LLC
A debt collector is covered by the Act if their principal purpose is the collection of the debt; the fact that they are also the creditor does not preclude a finding that debt collection is the primary purpose of the organization.
http://www2.ca3.uscourts.gov/opinarch/172851p.pdf
http://www2.ca3.uscourts.gov/opinarch/172851p.pdf
End of day.
The day's saga ends halfway through the Fifth.
To paraphrase Toscanini: "Here, the Starbucks closed."
-CB
To paraphrase Toscanini: "Here, the Starbucks closed."
-CB
Fifth Circuit: City of Pontiac Gen Empl Retmn v. Vinit Asar, et al.
Statement admitted into evidence from the company's Audit Commission report was not impermissible group pleading, as it was admitted not for the statements asserted, but rather to establish what the committee members knew.
Statements by corporate leadership don't establish a strong inference of scienter, as the allegations do not set out the precise statements, and there is no indication that the fraud went from the top down, as opposed to from the bottom up.
Audit committee's description of historical accounting practices raises sufficiently strong inference of scienter as to accounting leaderships' role in improperly enhancing financials reporting.
Sarbanes-Oxley filings evince improprieties, but none so glaring that being unaware of them would amount to reckless behavior.
&c, &c.
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
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