Federal Circuit: Kimble v. US

 

Given that the taxpayer knew that they had a foreign bank account, the taxpayer didn't tell their accountant about the account, and the taxpayer signed the tax return, the court did not clearly err in finding a willful or reckless violation of the law.

The maximum penalty looks to the statute, rather than the regulation, since they contradict.

No error in mitigation, since the relevant mitigation guideline imposes the maximum penalty on accounts over a million dollars in value.

A foreign bank account is not in itself a property interest sufficient to establish a significant contact with the foreign country.

Plaintiff did not establish grounds for mitigation where the taxpayer is beneficiary of only part of the proceeds of the account.

Reference to an excess penalty in the filing did not preserve an Eighth Amendment claim.

Kimble v. US

Ninth Circuit: Academy of Country Music v. Continental Casualty Company

 

Since an order of remand deprives the nonmovant party of access to the federal courts, precedent dictates that the transmittal of the remand did not divest the court of jurisdiction or the appellate courts of the power to review the remand or any antecedent orders.  Since the sua sponte remand to state court rested upon the finding that the removing party must plausibly plead jurisdictional elements, and not upon the stated finding that there was no subject matter jurisdiction, the case falls outside the statute limiting jurisdiction and appeal after remand.

Academy of Country Music v. Continental Casualty Company

Ninth Circuit: Allied Premier Insurance v. United Financial Casualty

 

Question certified to California Supreme Court:  Under the statute, does a commercial vehicle insurance policy continue until notice of cancellation is delivered to the state, regardless of the expiration date of the policy?

Allied Premier Insurance v. United Financial Casualty

Eighth Circuit: Business Leaders In Christ v. The University of Iowa

 

Summary judgment based on qualified immunity for the defts was in error, since it was clearly established in both Supreme Court and Circuit precedent that university organizations were limited public forums not to be subjected to unreasonable or viewpoint-based discrimination.  The fact that the policy was unevenly enforced actually reinforces the suggestion of viewpoint discrimination.

As similar cases have been decided on Free Speech grounds, though, the relevant law on Free Exercise was not clearly established.

CONCURRENCE/DISSENT:

Unequal enforcement precludes a finding of facially neutral law of general applicability; the Free Exercise right was sufficiently clearly established.

Business Leaders In Christ  v.  The University of Iowa

Eighth Circuit: Brigido Lopez-Chavez v. Merrick B. Garland

 

Because the law asks whether the previous deportation was on the basis of a certain predicate crime, the court engages in the inquiry from the present time, and even where the non-retroactive determination that the crime was not a valid predicate came after the deportation, the inquiry, from the standpoint of the present time, properly determines that the earlier deportation was not on the basis of a valid predicate crime.

Brigido Lopez-Chavez  v.  Merrick B. Garland

Eighth Circuit: Jose Gutierrez-Gutierrez v. Merrick B. Garland

 

Although the immigration removal order signed at the end of the earlier proceedings was signed by the prosecuting authority at the direction of the IJ, there is sufficient evidence of a proper removal order, since both that version and a version later signed by the judge are in the administrative record.

Proper inspection and a procedurally regular admission at the border did not establish a lawful entry, since the statute prohibited entry for ten years after the earlier removal.

Board's correctly determined that, given the phrasing of the current statute, there is no miscarriage of justice exception to the prohibition on reopening a reinstated removal order.

Jose Gutierrez-Gutierrez  v.  Merrick B. Garland

Seventh Circuit: Apostolos Xanthopoulos v. LABR

 

Board's determination that, since the latter reports were not seeking precisely the same statutory remedy, earlier reports filed with the regulator did not equitably toll the statute of limitations for the second remedy, was sound and supported by adequate evidence.  

Apostolos Xanthopoulos v.  LABR

Sixth Circuit: United States v. Vladimir Manso-Zamora

 

There is no constitutional or statutory right to counsel in collateral statutory discretionary release proceedings.  Counsel engaged for proceedings in which the right to counsel attaches do not need to file an Anders brief before subsequently withdrawing from the representation.

United States v. Vladimir Manso-Zamora

Fifth Circuit: USA v. Kieffer, et al

 

Testimony of co-conspirator is sufficient evidence for conviction, unless the testimony is incredible or insubstantial on its face; it is for the finder of fact to weigh the credibility of the testimony.  De novo review, as both counsel recited the form of the motion for acquittal.

Proof of a phone call between the two at that time is sufficient evidence for having made a false material statement denying knowledge of a person's whereabouts.

Stipulation to felony status at trial is sufficient to establish contemporary knowledge of that status at the time of firearm possession.

Despite the fact that a large number of juror questions was allowed, deft has not identified, and the court has not found, any that indicate prejudice.

CONCURRENCE IN THE JUDGMENT:

The appeal of the felon in possession count shouldn't have been de novo, even arguendo.

USA v. Kieffer, et al

Fourth Circuit: US v. Hassan Ali

 

As the plain text of the witness sequestration rule only references exclusion from the courtroom, its presumption of prejudice does not extend to rulings that reach beyond that exclusion, where courts have more discretion.  Since deft's counsel could have consented to an alternate arrangement, and appropriate curative questioning was allowed, the fact that the codeft witnesses were in the same cells during the trial was not an abuse of discretion.

Denial of motion for new trial is not reviewed de novo when given without explanation where the grounds are apparent in the record.  Denial was appropriate where only new evidence was an affidavit from another prisoner that constitutes, at most, impeachment evidence.  Deft's own affidavit is not considered new evidence where it is duplicative of testimony at trial.

Aiding and abetting under the federal robbery statute is a valid predicate crime of violence due to the use of force.  It was error to instruct on an alternate theory of culpability, though, as conspiracy under the same statute is not a predicate crime of violence.  When one of two prongs might have served as the basis for conviction, the inquiry on appeal is a case-specific and fact-intensive one.

US v. Hassan Ali 

Third Circuit: Desmond Conboy v. SBA

 

As the appellant's brief was largely cut and pasted from a trial court filing,  appellee awarded damages under the Rules.  Award against client, but counsel ordered to pay.

Sanctions for making a frivolous argument at the District Court do not preclude sanctions for filing the same arguments on appeal.  Response to appellate sanctions motion needed to be more than a cut and paste from the trial level sanctions filing.

Desmond Conboy v. SBA

Second Circuit: Joseph Watley, Karin Hasemann v. Department of Children and Families

 

Under state's collateral preclusion principles, since the mental condition of the parents was sufficiently considered in the removal proceedings, the standard-specific question of sufficient accommodation can't be relitigated in federal court under the disabilities statute.

Joseph Watley, Karin Hasemann v. Department of Children and Families

Second Circuit: Joseph Watley, Karin Hasemann v. Department of Children and Families

 

Forging of clients' signatures on immigration petitions without the knowledge of the clients constitutes sufficient unauthorized use of their personal information under the aggravated identity theft statute.

Material falsity of the filing is sufficiently independent from the use of the forged signature to justify the independent sentencing increase.

Sufficient evidence for the relevant hundred-document threshold by a preponderance where it was established that 100 basically identical petitions of factual clams were filed.

CONCURRENCE:

While lawful, the indictment's additional charge of identity theft was possibly an unfair use of prosecutorial discretion.

Joseph Watley, Karin Hasemann v. Department of Children and Families

First Circuit: US v. Concepcion

 

Corrigendum.

 US v. Concepcion

First Circuit; Lopez-Rosario v. Programa Seasonal Head Start

 

Emendation.

Lopez-Rosario v. Programa Seasonal Head Start

First Circuit: Thile v. Garland

 

Agency's decision that petitioner had not established state of citizenship was supported by substantial evidence, given the small amount produced after continuance, and lack of explanation for the limited amount of proof.

IJ did not have to make a formal adverse credibility finding to justify rejection of the petitioner's claim as to country of citizenship and requirement of additional evidence.

Under firm resettlement principle, claim against deportation is heard based on the country from which the petitioner came to the US, and from which he held a valid passport, which, since logically possible, creates an inference of sufficient opportunity for permanent residence.

Thile v. Garland

First Circuit: US v. Ayala

 

Since the sentencing judge indicated that the eventual sentence was the correct sentence irrespective of the dispute over which sentencing guidelines should apply, the eventual application of the higher range was, at most, harmless error.

Sentencing judge's remark to witness was, at most, ill-advised attempt to put them at ease, insufficient for a determination of judicial bias.

US v. Ayala

DC Circuit: Gerald Hawkins v. Debra Haaland

 

Concurrent procedural regulation of waters reserved to the Tribe in a treaty with the Federal Government isn't an unlawful delegation constituting a procedural injury to those holding inferior rights to take the water, since the Tribe's treaty right to ensure sufficient water levels requires no concurrence from the Federal Government.  Even absent the concurrent regulation procedures, the Tribe's right to the water would remain, leaving the plaintiffs without a possibility for redress sufficient to justify Article III standing.

Gerald Hawkins v. Debra Haaland

DC Circuit: Christiana Tah v. Global Witness Publishing, Inc.

 

Although the district has recently clarified that the special motion to dismiss statute imposes a burden equivalent to summary judgment in the federal courts, the statute can't be applied in federal court, because the movant under the statute has no burden to make any showing on the merits and the statute limits the discovery process.

Nothing in the denials by the targets of the investigative reporting constituted readily verifiable evidence needed to support a plausible case that the publisher had a degree of awareness of probable falsity sufficient to establish reckless disregard for the truth.

DISSENT:

Even absent contradictory evidence, a story might be inherently implausible, and a publisher has an affirmative duty to reasonably dispel their own doubts.  First consider the inherent plausibility, then consider counterarguments.

The concession that there was no evidence that the counterparty to the transaction alleged to be the motive for the bribery knew of the payments, and the lack of motive for self-dealing bribery in the bonuses awarded make the story sufficiently inherently improbable.

The facts cited in the denials were sufficient to cast doubt on the story.

Circuit split suggested.

NYT v. Sullivan should be overruled.

Christiana Tah v. Global Witness Publishing, Inc.

Ninth Circuit: James O'Doan v. Joshua Sanford

 

Office entitled to qualified immunity for tripping body-throw maneuver used on naked gentleman making threatening gestures.

Given the ordinary and reasonable inference that people know what they are doing, the police offices had sufficient probable cause for the arrest, given the illegal conduct that they had witnessed, despite the claim by others at the scene that the plaintiff was experiencing a medical episode; the probable cause was not dissipated by the time the plaintiff was released from the hospital, since from the police officers' perspective, the conduct seems inconsistent with the asserted condition.

While the explanation for the plaintiff's actions was ambiguous, this did not mean that it was obvious that the story offered by the plaintiff and others at the scene.

Omission of claimed medical condition from report's supporting affidavit wasn't a deliberate fabrication, as precedent requires that the officer either knew or had cause to know of actual innocence, or used coercive and abusive investigatory techniques.

DISSENT:

Given the exculpatory asserted medical condition, the determination of probable cause required an assessment of the credibility of the varying claims, and reconstructing and judging the reasonableness of these determinations is a matter for the jury.  

(Samples of questions that the plaintiff's lawyer might ask on cross.)

James O'Doan v. Joshua Sanford