DC Circuit: BCP Trading and Investments, LLC v. Cmsnr. IRS

 

Investigation of accountancy firm did not create a situation of undue contractual influence on the taxpayers, as some had multiple advisors, and some were sophisticated business professionals; the accountancy firm notified the taxpayers of the investigation in a manner that allowed for outside advice on at least some of the relevant transactions.

For purposes of determining whether the partnership was a sham, while the correct business purpose test is distinct from the court's intent-based test, the two are not mutually exclusive, since intent is necessary to prove business purpose.  The transaction had no practical economic effects other than the creation of intentional artificial tax losses.

Tax court's refusal to allow intervenor is reviewed for clear abuse of discretion, given the broad FRCP rule and the court's procedural discretion.  Denial of intervention of right or denial of permissive intervention would both have been appropriate, given the existing representation of interests.

BCP Trading and Investments, LLC v. Cmsnr. IRS

Seventh Circuit: Cedric Cal v. Jason Garnett

 

Claim of actual innocence after a witness recantation that resulted in a perjury conviction for the witness was not adjudicated by state courts unreasonably.  Since a thorough review of the facts and the state record establish that no relief is warranted, the question of whether a freestanding claim of actual innocence is cognizable in non-capital federal Habeas proceedings need not be answered.

Cedric Cal v. Jason Garnett

Fifth Circuit: Newbury v. City of Windcrest

 

Plaintiff's clam that rudeness was gender-based is unsubstantiated by the record.  Two confrontations and a hostile encounter do not suffice for a constructive discharge claim under the statute.  A record reflecting resignation from the position precludes a sufficient showing for retaliatory discharge or gender discrimination.  While a work assignment might have sufficed for retaliation, sufficient causation wasn't established. 

Insufficient proof for Monell claim against municipality arising from police bodycam appearing to remotely activate when inside the plaintiff's house, given technical evidence and lack of showing that there's a general policy to surreptitiously record off-duty officers.

Newbury v. City of Windcrest

Fifth Circuit: Atkins, et al v. CB&I

 

Company's plant to pay employees who stay until the end of a project a bonus is akin to a severance scheme, but does not have the administrative complexity characteristic of an ERISA plan, and is therefore outside the reach of the statute, and of the federal courts.

Atkins, et al v. CB&I

Fifth Circuit: Alejos-Perez v. Garland

 

The state drugs statute isn't divisible; where the state's double jeopadry caselaw ultimately looks to the factual differences between violations within the same statute, a holding that each item in a list is a separate violation doesn't answer the question of divisibility for immigration purposes.

State statute is broader than the generic definition; remand to agency to determine if there is a reasonable probability that the conduct outside the reach of the generic offense would be prosecuted, and to assess alternate grounds of removability.

Alejos-Perez v. Garland

Fifth Circuit: USA v. Brune

 

Jeopardy does not always attach at acceptance of a guilty plea; the relevant criteria for determining the point at which jeopardy attaches are the deft's finality interests and the risk of prosecutorial overreach.  Circuit split flagged on both the proposition and the criteria.

Finality interests look to preserving jury verdicts, the chance for the state to marshal its evidence, and the forseeability of the the second charge.  The relevant factors for overreach are whether the second charge was pending, and whether the government had a full and fair opportunity to convict.

As deft pleaded to conspiracy involving the statutory offense with a minimum quantity, but the plea, the magistrate's report and the acceptance of plea reflected  the statutory offense with no minimum quantity, jeopardy did not attach at the acceptance of the plea, and the court could amend the order to reflect the second statute.

Foreign name of cartel with which the deft had entirely domestic contacts suffices for the sentencing increase for foreign importation.

USA v. Brune

Second Circuit: New York State Dep’t of Env’t Conservation et al. v. Fed. Energy Regul.

 

Given the tolling orders issued by the agency, the sixty-day period for seeking judicial review of agency action wasn't a jurisdictional limit that commenced by operation of law at the point at which agency inaction might have been construed as a denial; the permissive "may" allows the challenger to wait for final action by the agency.

Statute is a mandatory time period for agency action, since it both defines the action and specifies the result of inaction.  Since this time limit is designed to protect the regulatory structure rather than individual private applicants, the agency cannot contract or coordinate with the applicants to extend the time-frame.

Federal agency review might have reached the question of waiver sua sponte or on motion of a third party, so the fact that the party challenging the waiver had been a party to the waiver agreement did not estop the federal agency review from reaching the question.

Agency's policy allowing them to construe a request for expedited action as a request for a waiver determination was a reasonable construction of their statutory powers.

New York State Dep’t of Env’t Conservation et al. v. Fed. Energy Regul.

First Circuit: Emmanuel v. Handy Technologies, Inc.

 

Independent contractor sufficiently manifested assent to clickwrap terms of service containing an arbitration provision, despite the fact that the button clicked to accept the agreement wasn't at the end of the document.

Claim of unconscionability arising from the terms' unilateral modification provision does not address the threshold question of scope of arbitration, and is reserved in the first instance to the  arbitration.

 Emmanuel v. Handy Technologies, Inc.

First Circuit: Marcano-Martinez v. Coop. de Seguros Multiples

 

Although prescription is an affirmative defense, once established, the burden shifts to the plaintiff to establish an interruption; phone calls with no verification mechanism were insufficient to establish an extrajudicial claim on the insurance policy that might stop the clock.

Marcano-Martinez v. Coop. de Seguros Multiples

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