-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.
Third Circuit: Jeffrey Workman v. Superintendent Albion SCI
Where deft's trial counsel was preoccupied with vindication of a manifestly weak legal theory and the issue is not raised in state habeas -- the latter is ineffective assistance by its terms, and the former is a sufficient showing -- cause for waiver in subsequent federal collateral challenge is excused.
http://www2.ca3.uscourts.gov/opinarch/161969p.pdf
http://www2.ca3.uscourts.gov/opinarch/161969p.pdf
Second Circuit: Spinelli v. National Football League
As implied license is an affirmative defense, all elements must be plain in order to dismiss an infringement claim at the pleadings stage.
Error to dismiss for not stating a claim where there is evidence that the grant of license by the creator did not contemplate the sublicence; this sounds in copyright infringement, not in contract.
Secondary infringement allegation states a claim against third party organization given showing of close connection between the two organizations.
Good faith/fair dealing states claim -- strong-arm negotiation unconscionability doesn't.
(Miscellany)
Antitrust argument would sound more clearly if photographers challenged their market -- trademark licensing, etc. Rather than simply alleging the existence of a behemoth.
http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/doc/17-673_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/hilite/
Error to dismiss for not stating a claim where there is evidence that the grant of license by the creator did not contemplate the sublicence; this sounds in copyright infringement, not in contract.
Secondary infringement allegation states a claim against third party organization given showing of close connection between the two organizations.
Good faith/fair dealing states claim -- strong-arm negotiation unconscionability doesn't.
(Miscellany)
Antitrust argument would sound more clearly if photographers challenged their market -- trademark licensing, etc. Rather than simply alleging the existence of a behemoth.
http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/doc/17-673_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/hilite/
First Circuit: US v. Ocean
Sufficient evidence for conspiracy despite conflict with others and dual role as consumer and salesman for the drug operation -- the common purpose was the increased sale of narcotics.
Absent evidence that the government was attempting to elicit statements from the deft, contents of phone call during pretrial detention to friend who might have been cooperating with the investigation admissible.
Explicit waiver of drug quantity calculation in sentencing memo forecloses challenge on appeal.
District court was within discretion to accept deft's possibly exaggerated calculation of drug quantity.
Reference on cross to lab reports did not inappropriately bronze lay testimony as to drug identification or present confrontation clause argument as to the content of the reports.
http://media.ca1.uscourts.gov/pdf.opinions/16-2468P-01A.pdf
Absent evidence that the government was attempting to elicit statements from the deft, contents of phone call during pretrial detention to friend who might have been cooperating with the investigation admissible.
Explicit waiver of drug quantity calculation in sentencing memo forecloses challenge on appeal.
District court was within discretion to accept deft's possibly exaggerated calculation of drug quantity.
Reference on cross to lab reports did not inappropriately bronze lay testimony as to drug identification or present confrontation clause argument as to the content of the reports.
http://media.ca1.uscourts.gov/pdf.opinions/16-2468P-01A.pdf
More elsewhere, of course
To wit:
http://www2.ca3.uscourts.gov/opinarch/171944p.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-40148-CV0.pdf
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=today&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
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
http://www.cafc.uscourts.gov/opinions-orders
Sub-optimal breadth and depth today. Not good.
Tomorrow is, inter alia, another day.
-CB
http://www2.ca3.uscourts.gov/opinarch/171944p.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-40148-CV0.pdf
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=today&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
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
http://www.cafc.uscourts.gov/opinions-orders
Sub-optimal breadth and depth today. Not good.
Tomorrow is, inter alia, another day.
-CB
Third Circuit: Frank Long v. SEPTA
Although Congress cannot designate an injury as specific and harmful enough for standing, the cause of action and damages for not providing a credit report established that Congress saw the harm as serious, and it was similar to rights recognized in the common law. The requirement of FCRA notification, though, is a bare procedural violation with no actual harm, insufficient to establish injury in fact under Article III.
http://www2.ca3.uscourts.gov/opinarch/171889p.pdf
http://www2.ca3.uscourts.gov/opinarch/171889p.pdf
Second Circuit: USA v. Barrett
Since Hobbs Act robbery is rarely used in cases of merely threatened harm, convictions under the act are categorically convictions for a crime of violence.
Hobbs Act robbery conspiracy is a crime of violence, as it necessarily creates a substantial risk of violence.
As statute requires that the number of predicate convictions be determined by the finder of fact in the present trial and conduct-specific aspects of the prior convictions are balanced in this determination, many of the constitutional difficulties with prior convictions under a residual clause can be avoided. The fact that the predicate convictions weren't determined by the finder of fact in this case was harmless error.
http://www.ca2.uscourts.gov/decisions/isysquery/82545afb-53b7-40bc-96c2-b5760539665a/1/doc/14-2641_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/82545afb-53b7-40bc-96c2-b5760539665a/1/hilite/
Hobbs Act robbery conspiracy is a crime of violence, as it necessarily creates a substantial risk of violence.
As statute requires that the number of predicate convictions be determined by the finder of fact in the present trial and conduct-specific aspects of the prior convictions are balanced in this determination, many of the constitutional difficulties with prior convictions under a residual clause can be avoided. The fact that the predicate convictions weren't determined by the finder of fact in this case was harmless error.
http://www.ca2.uscourts.gov/decisions/isysquery/82545afb-53b7-40bc-96c2-b5760539665a/1/doc/14-2641_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/82545afb-53b7-40bc-96c2-b5760539665a/1/hilite/
First Circuit: US v. Irizarry-Rosario
References in closing to potentially aggravating factors do not breach the plea deal, so long as the tactic is not an end run around the plea agreement, and the government doesn't express regret or a desire to be free of the terms of the deal.
End of day
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
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
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
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