8th and above out of scope. Slew of cases out of the 8th today.
Going to try to work back up to full daily coverage over the next week or so -- seems like a good goal to have.
-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.
Eighth Circuit: Bruce Munro v. Lucy Activewear, Inc.
Product's name served as a source-identifying device for trademark claim, as the plaintiff is the person who produces things of this name.
Light-based art installation is protected by copyright, not trademark.
No error in denial of leave to amend.
http://media.ca8.uscourts.gov/opndir/18/08/164483P.pdf
Light-based art installation is protected by copyright, not trademark.
No error in denial of leave to amend.
http://media.ca8.uscourts.gov/opndir/18/08/164483P.pdf
Sixth Circuit: Robert Davis v. Detroit Pub. Sch. Cmty. Dist.
Refusal to place ballot issue is not sufficiently concrete or particularized for standing. Placing tax decisions in the hands of the electorate means that redressibility for tax harms is uncertain.
Fifth Circuit: Stephanie Odle v. Wal-Mart Stores, Incorporated
Dissent from denial: ln the caselaw, where parties voluntarily dismiss the action, the court does not have sufficient authority over the case to consider whether other intervenors should be added.
Statement in support of denial of en banc: Minor exceptions from exigency.
http://www.ca5.uscourts.gov/opinions/pub/16/16-10347.CV1.pdf
Third Circuit: USA v. Chaka Fattah, Sr.
Trial court judge did not abuse discretion in interviewing jurors in the course of deliberations about the conduct of another juror.
No abuse of discretion in dismissal of juror for not deliberating where juror informed courthouse deputy that he intended to hold out "no matter what."
Jury instructions did not comport with Supreme Court holding issued after verdict but before sentencing on the scope of official acts within the bribery statute -- remanded.
Formal proposal for Congress to fund a specific project was a sufficiently official act.
Sufficient evidence for RICO conspiracy convictions.
&c, &c...
http://www2.ca3.uscourts.gov/opinarch/164397p.pdf
No abuse of discretion in dismissal of juror for not deliberating where juror informed courthouse deputy that he intended to hold out "no matter what."
Jury instructions did not comport with Supreme Court holding issued after verdict but before sentencing on the scope of official acts within the bribery statute -- remanded.
Formal proposal for Congress to fund a specific project was a sufficiently official act.
Sufficient evidence for RICO conspiracy convictions.
&c, &c...
http://www2.ca3.uscourts.gov/opinarch/164397p.pdf
Second Circuit: United States v. Alston
Off-duty police officer who carries a weapon at the direction of the police force can still be charged for possessing a weapon in furtherance of the illegal acts, as weapons can be possessed for multiple reasons.
No error in denial of new trial based on the fact that one of the witnesses mis-stated their employment status.
Post-verdict jailhouse infractions of witness do not give rise to a Brady claim.
No error in denial of minor participant sentencing reduction, as the deft's interference with law enforcement allowed criminal conspiracy to proceed; similar logic for obstruction and breach of trust sentencing enhancements.
Second Circuit: United States of America ex rel. Wood v. Allergan, Inc.
As the statute bars bringing a claim when another claim is pending (even under seal), amendment of claim subsequent to the end of the first-filed suit does not allow the later-filed suit to survive the statutory bar.
http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/doc/17-2191_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/doc/17-2191_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/hilite/
Second Circuit: Doe v. JPMorgan Chase Bank, N.A.
Where the federal victim recovery statute looks to state law to determine whether funds are within reach of the statute, a state law determination that electronically transferred funds are reachable only by the entity that transferred the funds to the electronic transfer holding means that the funds cannot be reached by the entity that transferred the funds to the transferring entity, as that would be a transfer in violation of regulations, which is prohibited by another law entirely.
http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/3/doc/17-759_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/3/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/3/doc/17-759_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/3/hilite/
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
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