Thursday, July 07, 2011

Published Circuit Opinions - July 7

Second Circuit:

The entire Second Circuit declines to recuse itself from a 9/11 conspiracy case.  Attorney ordered to show cause why this one doesn't go to eleven.

Costs and fees to prevailing party in an immigration case, as the government's position wasn't substantially justified.

Madoff litigation - civil RICO conspiracy to "fleece" claim booted as precluded by the PLSRA RICO amendment.

 FSIA - China granted immunity based on third party assertion, execution of judgement against Chinese assets blocked.
We identify no doctrinal bar to a district court’s applying execution immunity on its own initiative consistent with the terms of the FSIA.

 First Circuit:

If you have three guns, you have a sentencing enhancement - no need for the possession to be charged, so long as it's part of the same course of conduct or common scheme or plan.

When you install a poor hospital floor, you have to put in a new one, not just patch the cracks where they appear.

Dismissal of predatory lending claim reversed in part. 

Third Circuit:

Omnibus review of recent FCC rulemakings.  Need more noticin' & commentin' next time.

Fourth Circuit:

Out of state attorneys who did work and signed stuff get fees under EAJA, even where they didn't seek pro hac vice admission.  Dissent - local rules consitute "special circumstances" under the Act.

Fifth Circuit:

Duty to defend - In Texas, an advertising injury requires dissemination.

16 months between arrest and trial won't get you a speedy trial and/or ineffective assistance of counsel Great Writ - it's not objectively unreasonable in Mississippi..

USA v. Welles Bacon

(Extraordinaily) bad deeds 30 years ago can be considered for "pattern of activity" sentencing enhancement.

Sixth Circuit:

"Motor City Miink," a Detroit pimp, needed to check the ages of his employees more carefully. Reversed as to one count, as the CEE requires that all conspirators "act in concert."

Seventh Circuit:

Conviction under general sodomy law can be a Tier III sex offense, since the judge can consider the charging instruments (revealing it to be rather forcible) & not registering = bad police karma.

Charging instruments usually can't be considered under ACCA.  Dictum, as offense was intrinsically violent.

 Motions to Dismiss should be responded to.  (Deft's plan here - move to amend the pleading, then appeal the denial of the motion.)

Eighth Circuit:

(Nine published decisions in one day means MB cuts & pastes clerk summaries.)

United States  v.  Alvin Eason
  Criminal case - Sentencing. Defendant's Tennessee burglary conviction
   qualified as a violent felony under the Armed Career Criminal Act;
   defendant's plea agreement did not waive his right to challenge the
   reasonableness of his sentence; sentence was not greater than necessary to
   achieve sentencing goals and was not substantively unreasonable.
United States  v.  Karina Sanchez-Gonzalez
   Criminal case - Criminal law and sentencing. Court would not consider
   claim of ineffective assistance of counsel at trial as that claim requires
   further development of the factual record and should be raised in a
   Section 2255 proceeding; district court did not err in concluding
   defendant was not entitled to safety-valve sentencing based on its finding
   that she failed to provide the government with truthful and consistent
   information; court would not address a claim of error concerning denial of
   a two-level reduction for acceptance of responsibility as defendant could
   not be sentenced below the statutory minimum in light of the district
   court's denial of safety-valve sentencing
Monarch Fire Protection Dist.  v.  Freedom Consulting & Auditing
   Civil case - torts. District court did not err in granting defendant
   summary judgment on plaintiff's claim for conversion as plaintiff failed to
   establish the elements of conversion under Missouri law; Missouri
   Supreme Court would require an indemnity clause to contain express
   language referencing litigation between the parties before interpreting it to
   allow a party to recover attorneys' fees incurred in an action asserting its
   rights under the contract; here the indemnity clause does not contain such
   language and the court did not err in denying a request for fees. Judge
   Gruender, concurring in part and dissenting in part.
American Civil Liberties Union  v.  Javed Mohammad
   Civil case - civil procedure. While the parents of the charter school may
   have had standing to intervene in an action by the ACLU challenging
   certain of the school's policies on the ground they violated the
   Establishment Clause, the district court did not err in denying the parents'
   motion to intervene on the ground the motion was untimely.
Manley Stowell  v.  Paul Huddleston, M.D
    Civil case - Torts. District court did not abuse its discretion by finding
   that plaintiff's medical expert was not qualified as he had no practical
   experience or knowledge of what is usually and customarily done by
   orthopedic surgeons in circumstances presented in plaintiff's case; nor did
   the court abuse its discretion by concluding that the expert could not cure
   this deficiency by relying on outside sources of information, such as
   medical journals and statistics; claim that plaintiff did not need to present
   expert testimony to establish a prima facie case under Minnesota law is
   rejected as plaintiff had to produce expert testimony to establish that the
   risk of blindness was one that the defendant had a duty to disclose.
Gary Quinnett  v.  State of Iowa
    Civil case - Family Medical Leave Act. State regulations, a state benefits
   website and a benefits guide were insufficient to show that the State of
   Iowa had waived his Eleventh Amendment immunity with respect to suits
   brought under the Family Medical Leave Act's self-care provisions.
Suzanne Clark  v.  Iowa State University
   Civil case - Employment discrimination. District court did not err in
   dismissing plaintiff's "freestanding" due process claim or in denying her
   post-trial motion; however, the court erred in dismissing her state-law
   wrongful discharge claims against defendants Geoffroy and Callahan in
   their individual capacities. Judge Loken, concurring.
United States  v.  Joe Cruz

   Criminal case - Criminal law. District court did not abuse its discretion
   by denying defendant's motion to withdraw his guilty plea as his
   allegations did not establish a fair and just reason to withdraw the plea.
Hawkeye-Security Insurance Co.  v.  Donald Bunch
   Civil case - Insurance. District court did not err in finding coverage did
   not attach because Bunch lacked authority to permit the person driving
   the car at the time of the accident to use the vehicle as a second permittee;
   defendant was not entitled to uninsured and underinsured motorist
   coverage because the policy in question was not ambiguous.
United States  v.  Terry Mortensen

  Criminal case - Sentencing. Claims of Rule 11 error rejected. 

Ninth Circuit:
Trial judge denies death penalty deft's request for a second chair,  proceeds to file a response 
in special action defending the decision, is denied standing and reversed, proceeds to run trial 
and sentence deft to death.   Yeah, that's a Habeus.   (btw: thou shalt not kill.)
Tenth Circuit:
United States v. Soza 
Results of pre-Gant bad search allowed under good faith exception.
Eleventh Circuit:

Estate of Kyle Thomas Brennan etc., v. Church of Scientology Flag Service Organization, Inc.  

District Court can't enjoin a state proceding to preserve an attorney's representation (barred by the state judge) of a party before the District Court.  Y'know, federalism and all.

Conner v. Hall 

Georgia temporarily kept from executing a prisoner with possible mental retardation, given that it didn't come up at trial.  (Ironically, only because Georgia hasn't made a practice of denying Habeus under default for such things.)  (Btw, thou shalt not kill.)


Alan Horowitch v. Diamond Aircraft Industries, Inc. 

Questions on atty's fees certified to Florida S. Ct.,  reply paid.


Patsy Croom vs William F. Balkwill, Clifford Legg, et al 

2 hour Summers detention of suspect's 63 year old mother upheld.


Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

Category tags above are sporadically maintained Do not rely. Do not rely. Do not rely.

Author's SSRN page here.