Fifth and beyond on your own, compadres.
CB
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.
Fourth Circuit: US v. Anthony Burfoot
Sufficient evidence for bribery. As the scheme, not state law, dictated the timing of tax payments sent online, sufficient evidence for wire fraud counts.
As payments were part of a continuous scheme, counts referencing earliest payments and Hobbs Act violation are not barred by the statute of limitations.
Indictment not amended by court's instruction during deliberations that the amount specified in the count was not an element of the offense.
Statement sufficiently material for the purposes of perjury where it is within the scope of the alleged conspiracy and casts doubt on the veracity of a key witness.
No error of denial of mistrial after speculative characterizations of fraud elicited on direct, given curative instruction and overwhelming amount of other evidence.
No abuse of discretion in barring consideration of newly discovered evidence of a witness' cognitive impairment.
Jury is presumed to follow the judge's instructions, so a five-hour deliberation that acquitted on two of the counts was a valid deliberation.
http://www.ca4.uscourts.gov/opinions/174266.P.pdf
As payments were part of a continuous scheme, counts referencing earliest payments and Hobbs Act violation are not barred by the statute of limitations.
Indictment not amended by court's instruction during deliberations that the amount specified in the count was not an element of the offense.
Statement sufficiently material for the purposes of perjury where it is within the scope of the alleged conspiracy and casts doubt on the veracity of a key witness.
No error of denial of mistrial after speculative characterizations of fraud elicited on direct, given curative instruction and overwhelming amount of other evidence.
No abuse of discretion in barring consideration of newly discovered evidence of a witness' cognitive impairment.
Jury is presumed to follow the judge's instructions, so a five-hour deliberation that acquitted on two of the counts was a valid deliberation.
http://www.ca4.uscourts.gov/opinions/174266.P.pdf
Fourth Circuit: Andrew Shaw v. Jefferson Sessions III
Immigration authority can look through convictions for inchoate offenses to determine if the underlying charged conduct bars withholding of removal.
Statutory list of documents that establish conviction for a predicate offense is not an exhaustive list of the manner in which the predicate offense can be proved.
Administrative challenge that the petitioner's conviction was not established by the statutory list does not appropriately exhaust a claim that the predicate conviction does not justify a withholding of removal.
http://www.ca4.uscourts.gov/opinions/171213.P.pdf
Statutory list of documents that establish conviction for a predicate offense is not an exhaustive list of the manner in which the predicate offense can be proved.
Administrative challenge that the petitioner's conviction was not established by the statutory list does not appropriately exhaust a claim that the predicate conviction does not justify a withholding of removal.
http://www.ca4.uscourts.gov/opinions/171213.P.pdf
Fourth Circuit: US v. Ancient Coin Collectors Guild
Domestic law implementing treaty that barred, upon request, the sale of ancient coins belonging to other nations properly divided the purposes of the treaty; it was therefore not necessary to prove at trial that the coin had been discovered in the country of the requesting state party, as the implementing law had allowed for administrative designation of classes of coins.
Court did not abuse its authority by requiring that the deft's expert testimony be about the particular coins at issue, rather than old coins generally.
Court did not abuse authority in excluding testimony that the coins had been passed legally from a third state into the US immediately prior to sale.
Where the administrative regulations implementing the domestic law, apparently due to a drafting error, changed the scope of enforcement, a fair notice defense doesn't bar enforcement where all parties seemed to be aware of which items were prohibited under the law.
Discovery properly limited. Court did not abuse its discretion in striking part of the amended answer that seemed outside of the remand from the court of appeals.
http://www.ca4.uscourts.gov/opinions/171625.P.pdf
Court did not abuse its authority by requiring that the deft's expert testimony be about the particular coins at issue, rather than old coins generally.
Court did not abuse authority in excluding testimony that the coins had been passed legally from a third state into the US immediately prior to sale.
Where the administrative regulations implementing the domestic law, apparently due to a drafting error, changed the scope of enforcement, a fair notice defense doesn't bar enforcement where all parties seemed to be aware of which items were prohibited under the law.
Discovery properly limited. Court did not abuse its discretion in striking part of the amended answer that seemed outside of the remand from the court of appeals.
http://www.ca4.uscourts.gov/opinions/171625.P.pdf
Second Circuit: Lucia Lopez Catzin v. Thank You & Good Luck Corp.
Dismissing a long-running action sua sponte due to the fact that only supplemental jurisdiction remains requires, for reasons of basic fairness and reliable decisionmaking, that the parties receive notice and an opportunity to be heard.
Court's assertion that the federal claims had been pretextually asserted in order to manufacture jurisdiction required investigation and careful findings.
If the court has found that the supplemental jurisdiction arises from the same case or controversy, the statute requires a explicit selection of one or more of the enumerated statutory reasons for declining to exercise jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/doc/17-2497_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/hilite/
Court's assertion that the federal claims had been pretextually asserted in order to manufacture jurisdiction required investigation and careful findings.
If the court has found that the supplemental jurisdiction arises from the same case or controversy, the statute requires a explicit selection of one or more of the enumerated statutory reasons for declining to exercise jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/doc/17-2497_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/hilite/
Second Circuit: United States v. Baker
Sufficient evidence for conviction where an accomplice testifies to all elements, regardless of credibility issues. Finder of fact is best positioned to make these determinations.
Post-verdict juror's email does not provide a sufficient basis for questioning the jury, as it does not clearly establish any non-speculative misconduct; discussions among jurors were not necessarily deliberations, and a juror's belief "at first sight" that the deft was guilty is not a sufficiently plain demonstration of racial animus.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/doc/16-2895_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/hilite/
Post-verdict juror's email does not provide a sufficient basis for questioning the jury, as it does not clearly establish any non-speculative misconduct; discussions among jurors were not necessarily deliberations, and a juror's belief "at first sight" that the deft was guilty is not a sufficiently plain demonstration of racial animus.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/doc/16-2895_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/hilite/
First Circuit: Puerto Rico Elec. Power Auth. v. Ad Hoc Group-PREPA Bondholders
In a municipal bankruptcy action, the court can issue relief from the stay for cause.
The Code's grant of exclusive jurisdiction over property does not prevent the Title III court from issuing relief from the stay so that a creditor can appoint a receiver in another forum.
http://media.ca1.uscourts.gov/pdf.opinions/17-2079P-01A.pdf
The Code's grant of exclusive jurisdiction over property does not prevent the Title III court from issuing relief from the stay so that a creditor can appoint a receiver in another forum.
http://media.ca1.uscourts.gov/pdf.opinions/17-2079P-01A.pdf
First Circuit: Peaje Investments LLC v. PR Highways and Transportation
Where plaintiff is asserting a lien interest claimed to be a statutory lien, court can strike claims arising from a lien that was perfected as a secured interest, so long as the claims are revisited if the lien is held to be non-statutory.
The creditor's interest, which arises under a resolution of the public utility authority pursuant to its organic act, is not a statutory lien, as the claim does not originate in an act of the legislature.
http://media.ca1.uscourts.gov/pdf.opinions/17-2165P-01A.pdf
The creditor's interest, which arises under a resolution of the public utility authority pursuant to its organic act, is not a statutory lien, as the claim does not originate in an act of the legislature.
http://media.ca1.uscourts.gov/pdf.opinions/17-2165P-01A.pdf
End of Day
And... Last Post. This Starbucks is determined to close, and is strict (and loud) in its arrest. Halfway through the Eighth.
TK, possibly:
http://media.ca8.uscourts.gov/opndir/18/08/171931P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171925P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/161847P.pdf
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
http://www.ca11.uscourts.gov/todays-published-opinions
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
Again, this site is just something that I do for batting practice. Don't rely, expect, or give credence.
-CB
TK, possibly:
http://media.ca8.uscourts.gov/opndir/18/08/171931P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171925P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/161847P.pdf
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
http://www.ca11.uscourts.gov/todays-published-opinions
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
Again, this site is just something that I do for batting practice. Don't rely, expect, or give credence.
-CB
Eighth Circuit: Landon Michael v. Joshua Trevena
Denial of qualified immunity for warrantless arrest grabbing plaintiff's throat and breaking his arm with a baton, as the cause of the arrest was a nonviolent misdemeanor. No basis for arrest, since the police officer had already decided that the statement was false, and the false staement statute requires that the statement mislead the police.
Dissent: Arguable probable cause -- might have proved confusing.
http://media.ca8.uscourts.gov/opndir/18/08/171946P.pdf
Dissent: Arguable probable cause -- might have proved confusing.
http://media.ca8.uscourts.gov/opndir/18/08/171946P.pdf
Eighth Circuit: Daaron McAdoo v. Amy Martin
Statute's requirement of physical injury is a threshold requirement to bar frivolous claims, so causation does not have to be established between the injury and the evil of the statute -- plaintiff can recover for any harms traceable to unconstitutional deliberate indifference so long as there is an injury associated with the claim.
http://media.ca8.uscourts.gov/opndir/18/08/171952P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171952P.pdf
Eighth Circuit: Randy Kinder Excavating v. JA Manning Construction Co.
No clear error in holding that general contractor's threatened withholding of payment and interference was the first material breach of agreement with contractor; contractor's continued performance made the termination of the agreement breach, since the fact that the contractor didn't formally challenge a corps of engineers decisions didn't present a per se claim of nonperformance. Damages reasonable.
http://media.ca8.uscourts.gov/opndir/18/08/172886P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/172886P.pdf
Sixth Circuit: Jamal Thomas v. George Stephenson
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
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
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
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