Still hoping to move to full coverage, while balancing dissertation & slings/arrows/what have you.
More from today:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/16-55090.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/15-50366.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/15-35834.pdf
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1845.Opinion.9-7-2018.pdf
-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.
Ninth Circuit: Rynearson v. Fergusun
(Rakoff (SDNY) on panel.)
When a person subject to a protective judicial order seeks to challenge the constitutionality of one of the statutes implicated by the order, federal courts are not required to abstain from the question, as the interference with the state criminal proceeding would be indirect and not dispositive.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/17-35853.pdf
When a person subject to a protective judicial order seeks to challenge the constitutionality of one of the statutes implicated by the order, federal courts are not required to abstain from the question, as the interference with the state criminal proceeding would be indirect and not dispositive.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/17-35853.pdf
Eighth Circuit: William Hatcher v. MDOW Insurance Company
Insurance policy renewed at discretion of policyholder and insurer can be modified during the course of the policy with sufficient notice; continued premiums serve as considerations for any changes. Boilerplate letters instructing policyholder to review the terms of the policy prior to renewal constitute sufficient notice.
No prejudice from improperly sustained objection to testimony, as the objection was at sidebar, the jury was not informed, and there was no proffer as to what might have been revealed in that line of testimony.
http://media.ca8.uscourts.gov/opndir/18/09/172410P.pdf
No prejudice from improperly sustained objection to testimony, as the objection was at sidebar, the jury was not informed, and there was no proffer as to what might have been revealed in that line of testimony.
http://media.ca8.uscourts.gov/opndir/18/09/172410P.pdf
Eighth Circuit: Charter Advanced Services v. Nancy Lange
Voice-IP system is properly considered an information service, as the data is transformed to the traditional telephony format before entering the network. State regulation therefore preempted by the field of federal law.
Dissent: There is no noticeable transformation between end users, some networks use voice-IP internally, transforming to traditional format before routing to user.
http://media.ca8.uscourts.gov/opndir/18/09/172290P.pdf
Dissent: There is no noticeable transformation between end users, some networks use voice-IP internally, transforming to traditional format before routing to user.
http://media.ca8.uscourts.gov/opndir/18/09/172290P.pdf
Sixth Circuit: United States v. Desmond Cam
For the purposes of the advisory sentencing guidelines, Hobbs Act robbery is not a predicate crime of violence, either as robbery or through its use of force, since it encompasses conduct limited to the threatened harm to property.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0201p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0201p-06.pdf
Sixth Circuit: John Doe v. David Baum
Where the facts are in dispute and there are competing narratives of events, due process requires that public universities allow either the accused student of his or her representative directly to question the accuser.
A judicial proceeding in which everyone of one gender is believed and all those of the other gender are disbelieved states a claim under Title IX.
Concurrence -- Title IX violation states a claim; some grounds for the claim improperly excluded by this holding, as they're more appropriate to the summary judgment standard.
Dissent -- Due Process right to confront the witness can be vindicated by written questions. Insufficient particularized causal connection for Title IX claims.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0200p-06.pdf
A judicial proceeding in which everyone of one gender is believed and all those of the other gender are disbelieved states a claim under Title IX.
Concurrence -- Title IX violation states a claim; some grounds for the claim improperly excluded by this holding, as they're more appropriate to the summary judgment standard.
Dissent -- Due Process right to confront the witness can be vindicated by written questions. Insufficient particularized causal connection for Title IX claims.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0200p-06.pdf
Fifth Circuit: Michael Vaughn, ex rel., et al v. United Biologics
A relator under the Act can seek voluntary dismissal with prejudice for purely private interests without binding the non-intervening government side, whose interests in the claim are dismissed without prejudice.
Statute requiring written opinion and reason for decision presents two freestanding requirements which can be accomplished separately.
Relators' having shared counsel with second relator in another forum who intends to pursue the action does not establish bad faith.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20389-CV0.pdf
Statute requiring written opinion and reason for decision presents two freestanding requirements which can be accomplished separately.
Relators' having shared counsel with second relator in another forum who intends to pursue the action does not establish bad faith.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20389-CV0.pdf
Third Circuit: USA v. Amy Gonzalez
Sufficient evidence for conspiracy conviction where the deft claims a genuine belief in the inciting statements, but finder of fact holds them to be objectively false.
Specific unanimity instruction not required, as the different mental states enumerated are alternate means of accomplishing the crime, not distinct potential elements of the crime. Where a statute lists several acts, commission of any two of which would be an element of the crime, specific unanimity as to the underlying acts is not required, as the point of the list is to identify conduct that violates the actual prohibition.
For the statutory finding that death had resulted from the crime, the finder of fact must find it to be a forseeable proximate cause; there is no need to establish that the defts actually intended to cause death, and culpability can be established by the liability of a co-conspirator.
As the cyberstalking was defamatory and part of the commission of the crime, the law as applied in this case does not violate the First Amendment.
A recusal order that might reasonably be read to transfer venue but is then amended to clarify that it only recuses the present judge does not impugn the present venue.
Possibly prejudicial prior family court records properly admitted with limiting instructions.
Statements to a therapist as part of the therapy are admissible under the hearsay exeption for statements made for medical diagnosis or treatment, in addition to being evidence of the state of mind.
Hearsay emails to third parties properly admitted, as they spoke to how the acts referenced affected the writer's state of mind.
,Statements to therapist insufficiently testimonial to trigger the Confrontation Clause.
Question on cross as to whether the law enforcement officer had doubts about the defts' guilt opened the door for a vouching statement on redirect. Vouching appropriately limited by instruction.
Court did not err in holding that testimony as to deft's honesty, peacefulness, and law abiding behaviour opened the door to testimony as to specific acts related to the present prosecution.
Factual findings by the judge during sentencing increased the advisory range, and not the statutory maximum -- these findings therefore could be made by a preponderance. and without reference to the jury's findings.
Deft's presence in courthouse should have put him on notice that it was foreseeable that a law enforcement officer might be injured in the coming imbroglio.
Injury to victim's children justified the increase of sentence for harming a vulnerable victim.
Life sentence for cyberstalking conspiracy resulting in death does not offend the Eighth Amendment.
http://www2.ca3.uscourts.gov/opinarch/161540p.pdf
Specific unanimity instruction not required, as the different mental states enumerated are alternate means of accomplishing the crime, not distinct potential elements of the crime. Where a statute lists several acts, commission of any two of which would be an element of the crime, specific unanimity as to the underlying acts is not required, as the point of the list is to identify conduct that violates the actual prohibition.
For the statutory finding that death had resulted from the crime, the finder of fact must find it to be a forseeable proximate cause; there is no need to establish that the defts actually intended to cause death, and culpability can be established by the liability of a co-conspirator.
As the cyberstalking was defamatory and part of the commission of the crime, the law as applied in this case does not violate the First Amendment.
A recusal order that might reasonably be read to transfer venue but is then amended to clarify that it only recuses the present judge does not impugn the present venue.
Possibly prejudicial prior family court records properly admitted with limiting instructions.
Statements to a therapist as part of the therapy are admissible under the hearsay exeption for statements made for medical diagnosis or treatment, in addition to being evidence of the state of mind.
Hearsay emails to third parties properly admitted, as they spoke to how the acts referenced affected the writer's state of mind.
,Statements to therapist insufficiently testimonial to trigger the Confrontation Clause.
Question on cross as to whether the law enforcement officer had doubts about the defts' guilt opened the door for a vouching statement on redirect. Vouching appropriately limited by instruction.
Court did not err in holding that testimony as to deft's honesty, peacefulness, and law abiding behaviour opened the door to testimony as to specific acts related to the present prosecution.
Factual findings by the judge during sentencing increased the advisory range, and not the statutory maximum -- these findings therefore could be made by a preponderance. and without reference to the jury's findings.
Deft's presence in courthouse should have put him on notice that it was foreseeable that a law enforcement officer might be injured in the coming imbroglio.
Injury to victim's children justified the increase of sentence for harming a vulnerable victim.
Life sentence for cyberstalking conspiracy resulting in death does not offend the Eighth Amendment.
http://www2.ca3.uscourts.gov/opinarch/161540p.pdf
Third Circuit: Joseph Brown v. Sage
When determining whether a prisoner's petition to proceed as a poor person is barred under statute due to having already filed three complaints that did not state a valid claim, the procedural law of the present forum controls, not the law of the forum in which the previous claims were filed.
The number of previously filed complaints is determined by counting all claims resolved before the filing date of the present action.
Concur/dissent - the discretionary power of dismissal in the PLSRA is a more efficient mechanism, and the analysis mandated here seems to foreclose that flexibility.
http://www2.ca3.uscourts.gov/opinarch/171222p.pdf
The number of previously filed complaints is determined by counting all claims resolved before the filing date of the present action.
Concur/dissent - the discretionary power of dismissal in the PLSRA is a more efficient mechanism, and the analysis mandated here seems to foreclose that flexibility.
http://www2.ca3.uscourts.gov/opinarch/171222p.pdf
Second Circuit: United States v. Pereira-Gomez
State Robbery statute is a valid predicate crime of violence, as even the passive examples raised here implied the threatened use of force. Where the underlying offense is a crime of violence, the attempt is also a crime of violence.
http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/doc/17-952_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/doc/17-952_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/hilite/
End of day
The voices of the day murmur low and sink to rest. Also decided today:
http://media.ca8.uscourts.gov/opndir/18/09/164532P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172401P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172413P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172424P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172995P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/173202P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/186007P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/18-55911.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/17-55165.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-71380.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-15338.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/15-15143.pdf
https://www.ca10.uscourts.gov/opinions/17/17-3206.pdf
In other matters, diss continues apace, slings and arrows survived. Onward.
-CB
http://media.ca8.uscourts.gov/opndir/18/09/164532P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172401P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172413P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172424P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/172995P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/173202P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/186007P.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/18-55911.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/17-55165.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-71380.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/16-15338.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/06/15-15143.pdf
https://www.ca10.uscourts.gov/opinions/17/17-3206.pdf
In other matters, diss continues apace, slings and arrows survived. Onward.
-CB
Seventh Circuit: Supreme Auto Transport, LLC v. Arcelor Mittal USA, Inc.
Antitrust suit against producer of raw metal cannot relate back its revised claim, making it untimely; the shift from industrial plaintiffs to the end users of the products gave the defendants insufficient notice to preserve documents and prepare for trial.
State antitrust laws likely require closer proximancy than the end user of the products, as loss calculation becomes difficult.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-06/C:17-2910:J:Wood:aut:T:fnOp:N:2213421:S:0
State antitrust laws likely require closer proximancy than the end user of the products, as loss calculation becomes difficult.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-06/C:17-2910:J:Wood:aut:T:fnOp:N:2213421:S:0
Sixth Circuit: Neil Morgan v. Fairfield Cty., Ohio
Denial of qualified immunity for municipality policy authorizing police officers to surround a house, standing 5-7 feet from it before knocking on door to discuss a possible violation of the law, as the systematic invasion of the curtilage wasn't considered. Immunity upheld for individual officers upheld, given evolving caselaw.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0199p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0199p-06.pdf
Fifth Circuit: Consumer Financial Protection v. Source for Public Data
Agency administrative subpoena that does not identify the activity under investigation or the relevant provision of law does not allow for judicial review of the reasonableness of the request, making it statutorily infirm.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10732-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-10732-CV0.pdf
Fifth Circuit: David Hager v. Todd G. Rowan
Discharged employee retains ERISA standing to challenge COBRA notification.
Since the employee was no longer eligible for the plan, medical costs otherwise covered by the plan are not an appropriate remedy; as the remedy must be in equity, the medical costs are similarly an inappropriate award; the proper remedy is a penalty based on the seriousness o the violation, and it is entirely possible that the amount of the penalty is equal to the medical costs incurred.
Third Circuit: Gordon Tima v. Attorney General United States
Statute that allows discretionary waiver of certain bad acts that would otherwise result in deportation by its terms only refers to fraud affecting admissibility, so a conviction for making false statements during an investigation of the admissibility fraud is not subject to discretionary waiver.
Third Circuit: Mona Estrada v. Johnson & Johnson
A person who purchases a product later found to be unsafe but who suffers no harm from the use of the product and who did not forgo purchasing a cheaper version of the product does not suffer sufficient injury for Article III standing, as they have received the benefit of their bargain.
Dissent: Safety of the product is an element of the bargain.
http://www2.ca3.uscourts.gov/opinarch/172980p.pdf
Dissent: Safety of the product is an element of the bargain.
http://www2.ca3.uscourts.gov/opinarch/172980p.pdf
First Circuit: Rivera v. Sessions
Procedural error in immigration administrative appeal seeking discretionary relief cannot present a cognizable constitutional question for purposes of Article III review, as there is no cognizable, constitutionally guaranteed liberty interest.
http://media.ca1.uscourts.gov/pdf.opinions/18-1243P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/18-1243P-01A.pdf
First Circuit: US v. Freitas
No prejudice from admission of co-conspirator hearsay, given overwhelming evidence of guilt.
Challenges to instructions either waived for insufficient development or contradicted by record.
Challenge to sufficiency of the evidence waived,, as appeal did not state or argue the standard of review.
No prejudice from plain error in prosecution's closing that went beyond the facts established at trial.
First Circuit: Doe v. Harvard Pilgrim Health Care
The administrative record for the purpose of judicial review properly includes documentary evidence from the post-filing review process, where both parties consent to the addition of the record in the post-filing process.
ERISA appeals at summary judgment are governed by clear error; remand to allow the court to interpret the documents.
http://media.ca1.uscourts.gov/pdf.opinions/17-2078P-01A.pdf
ERISA appeals at summary judgment are governed by clear error; remand to allow the court to interpret the documents.
http://media.ca1.uscourts.gov/pdf.opinions/17-2078P-01A.pdf
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