Tuesday, July 12, 2011

Published Circuit Opinons - July 12

First Circuit:

Safeguarding the Historic Hans v. FAA 
Wherein an old airplane hangar is allowed to be demolished.  FAA processes pass Overton Park muster, comport with NHPA & NEPA processes.

Third Circuit:

David Covell v. Bell Sports Inc
In Pennsylvania, tort claim juries can be instructed according to the Restatement Third despite the mixing of defect in design & negligence; government safety standards can be introduced.

Angel Pabon v. Superintendent SCI Mahanoy
 Lack of Spanish-language legal materials/translators in prison can toll the AEDPA one-year habeus deadline.  Debatable Bruton confrontation clause violation with admission of co-defendant's confession.

Fifth Circuit:

USA v. Anthony Kebodeaux
Intra-stae federal sex offender registration upheld as necessary and proper under Comstock analysis.  Special concurrence: should have analyzed the regulation as part of the whole statutory scheme.

USA v. Tandy McElwee, Jr., et al
Crim - medical drugs from doctor's office - Sentences and fine well above (6x) guidelines approved; illegal possession can be a lesser included offense of fraudulent acquisition. 

Sixth Circuit:

USA v. Jose Gaytan-Garza
Federal Rule of Appellate Procedure 4(b) is not jurisdictional, but late appeal dismissed anyway

Michael Evans v. C. Zych
Illicit possession & transfer of firearms is not a crime of violence for purposes of BOP classification.

Seventh Circuit:

Maurice Cobige v. City of Chicago
Arrestee in lockup died from arrhythmia - sufficient evidence.  But when son testified that mother was a bulwark of support, it opened door to her old convictions.  New trial on damages.

USA v. Daniel Littledale
Questioning of student in campus police station insufficiently custodial to require Miranda warning.

NewPage Wisconsin Sy v. United Steel
Easterbrook - Where a party seeks declaratory judgement in a District Court, jurisdiction obtains if the court would have jurisdiction over the claims of the "natural plaintiff" in the case.

USA v. Mario Meschino
Child pr0nography - sentencing enhancements upheld, inability to cross one victim where claim was tenuous upheld.  (School bus driver, btw.)

USA v. Augustus Wright
Trial barely makes 5 year statute of limitations deadline, as a deft signed a quitclaim on a deed.  (On instructions from his lawyer.)  Partial reversal for admission of police description of nontestifying defendant's statements under questioning, given confrontation clause.

Eighth Circuit:

Marlon Dale Sun Bear v. United States
2255 collateral attack on sentence not enough of a watershed/miscarriage of justice to give jurisdiction.  Dissent - retroactive application of relevant Scotus ruling would substantially change the sentence.

United States v. Samuel Turner
Pro se representation by paranoid schizophrenic upheld.  Among questions to potential jury members: "Is Matthew a Saint?"

United States v. Joe Bradley
Drug case - verdict survives challenges to calculation of amount based on date of conspiracy, disregarding of "minor participant" reduction given deft's scope & knowledge.

Bennett Brown v. Nuclear Regulatory Commission
Hobbs Act clock ticks with publication of decision and notification of parties, not printing in Federal Register.

Ninth Circuit:

Grocers' revenue sharing during strike not covered by nonstatutory labor exemption to antitrust laws, but "quick look" is inappropriate.
If a competitor finds itself the target of a strike, which would cause it to lose sales to other competitors, then revenue sharing provides some cushion from the damaging monetary impact of the strike. But it is by no means “obvious” that the grocers that entered into the RSP would be motivated to reduce their competition on price.

Requiring a church to go through a permitting process as it would dampen liquor sales in the area kinda violates RLUIPA.

Confession extracted by promise to allow suspect to witness his child's birth would have been reversed on direct appeal, but not here on habeus.  No controlling legal standard for excluded evidence / right to present a complete defense habeus claim.

Bankruptcy - Upon completion of a Chapter 13 process, the property revests, and the clock starts to tick for a subsequent Chapter 7 three year lookback.  (We think.  Tax law confuses TMB.)

Tenth Circuit:

United States v. Armijo
Manslaughter, as defined in the Colorado statute, is not a crime of violence for purposes of sentencing enhancement.

United States v. Martinez
Responding to a static-only 911 call is an insufficiently exigent circumstance to justify search of home.

United States v. Senninger
Prior decision - republished to include this footnote:
1Our review of Senninger’s appeal has been significantly impeded by her nearly complete failure to provide citations to the relevant sections of the record, as required by Fed. R. App. P. 28(e). Notwithstanding that failure, this court has thoroughly reviewed the entire appellate record and, based on that independent review, fully considered all appellate arguments raised by Senninger.
Counsel's request to withdraw denied.

United States v. Vasquez-Alcarez
 Sentencing upheld.  Priors from 15 and 11 years ago considered.

Eleventh Circuit:

Death penalty case - ineffective assistance of counsel habeus claim denied.  Thou shalt not kill.

Statutory rape-type statute held to be crime of violence for purposes of sentencing enhancement.

DC Circuit:

Carlos Loumiet v. Office of Comptroller of Curr.
Action against a writer of a report on a bank's questionable actions alleging him to be an insufficiently critical institutional-affiliated party is so meritless as to justify award of fees.
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.