Friday, July 22, 2011

Published Circuit Opinions - July 22

Second Circuit:

USA v. Gonzalez
No error in refusing to allow deft to withdraw guilty plea shortly after retaining second counsel; no tracing requirement in a fraud case to establish the 50-victim sentencing bump; remanded for determination of accurate restitution, as some victims might have received benefits from the misappropriated donations (program ads, etc.).

Jackler v. Byrne
Trainee police officer's refusal to make a false statement in an official record is speech as a citizen on a matter of public concern, and therefore protected by the First Amendment.

USA v. Jennings
A probation officer (athough an Article II official) can actively aid in the investigation of crimes.  

Thomas v. iStar Financial, Inc.
Punitive damages in employment case of 1.6m rejected as unconsitutional; process of conditional remittur  for punitive damages upheld; where dmages are on mixed state and federal claims, federal interest rates apply.

Poulin v. Balise Auto Sales Inc.
No valid claim stated under TILA in putative class action - the statute is a disclosure statute, not an unfair pricing statute, and there was no evidence of nondisclosure. 

First Circuit:

Minor v. Herman 
Receipt of payments from a partnership by the estate of a deceased partner does not constitute a partnership at will;  Motion to reopen a judgment for excusable negect is not barred by rule requiring courts to have continuous jurisdiction where the action has been dismissed sua sponte in the interval; Reestablishment of jurisdiciton provides sufficient ancillary grounds to enforce prior agreement; Settlement of claims cures service problems.

State of New York v. Amgen, Inc. 
State of California v. Amgen, Inc
State of Illinois v. Amgen, Inc. 
State of Georgia v. Amgen, Inc. 
State of Indiana v. Amgen, Inc. 
Illegal Big Pharma kickbacks can cause misrepresentation of a precondition of payment by Medicare, enabling state qui tam claims under the False Claims Act.

Evans v. Gerry 
Statutory change during pendency of criminal trial which allowed the State to petition for sentencing review does not violate clear Supreme Court precedent on ex post facto prohibition.

Cahoon, Jr. v. Shelton Where statute is ambiguous, no burden on municiplity to continue specific retirement medical benefit absent clear estoppel.

Third Circuit:

Eddie Wilson v. US Parole Comm 
Aggregation of DC sentence and Federal sentence arises out of a process issued by a state court, and petitioner therefore needs a COA to reach Circuit Courts of Appeal.

Natl City Mtg Co v. Brian Stephen
Where, subsequent to a federal bankruptcy action, ancillary and pendant issues of state jurisdiction arise (e.g., motion to divest lien, motion to stay the setting aside of a court-ordered sale), they are properly handled by the federal court.

Fifth Circuit:

Wells Fargo Bank NA v. Dorothy Stewart, et al
Where a debtor's challenge reveals systemic problems in a creditor's accounting, and that creditor has other claims pending in the District of the court, an injunciton requiring re-accounting is not justified absent broad, class based claims or a proven pattern of conduct in other cases.

USA v. Chad Piazza
New trial based on new affadavit - not a consequence of deft's lack of due diligence at trial where the omission was not strategic and the witness was not readily available.  (Broad reading.)

Sixth Circuit:

USA v. Xavier Priester
Pre-Spears case remanded for examination of unfairness of crack/cocaine ratio.  Dissent: No error in record.

Seventh Circuit:

Ramon Marin-Garcia v. Eric Holder
Potential deportee has third party standing to assert that his children will suffer harm upon his deportation; current legislation on point is, however, kosher.

Nick Jakich v. U.S. Trust
No fraud on the court in past bankruptcy sale where the alleged misrepresentation was not by counsel.  Poz standard on appropriate level of fraud to reopen a case: The answer is the kind of fraud that ordinarily couldn’t be discovered, despite diligent inquiry,within a year, and in some cases within many years—cases in which there are no grounds for suspicion and the fraud comes to light serendipitously.

Continental Casualty v. Sycamore  Springs Homeowners Association
Where settlement agreement does not differentiate between past remedy and capitl improvements for future, no obligation on insurance company to contribute.

USA v. Donald Brucker
Mandatory minimum sentences upheld against Due Process & Equal Protection challenges.

USA v. Carl Adams
Child pr0n -  above-minimum sentence upheld on grounds of deterrence.

USA v. Jadrion Griffin
When there is no cause fror a traffic stop, drugs discarded during low-speed chase are not fruits of seizure, as seizure does not occur until the stop is made.

Lisa Pakovich v. Verizon LTD plan
ERISA claim moot, as beneficiary had recieved the entirety of her request to the plan (District Court had provided for a continuing benefit), but attorney's fees can be considered under supplementary jurisdiction.

Eighth Circuit:

Gina Jenkins v. Donald Winter
Naval gender harrassment claims - dismissed for fialure to exhaust - poor info does not equitably toll or estop the deadline, as 'general knowlege' of the harm and the remedy suffices.

Beverly River v. Edward D. Jones Co.
Denial of beneits under intoxication exclusion referring to local standards of bein' drunk upheld.

Richard Angevine v. Anheuser-Busch
Emailed assertion from employer denying a specific benefit not sufficient for the repudiation exception- administrative remedies must be further exhausted.

United States v. Kendrick Butler
A paper check is not a 'device' for the 'device-making' sentencing bump.

Charles Green v. Union Security Insurance Co.
District Court erred in fnding a incontrovertable disability upon diagnosis of fibromyalgia.

United States v. Lorena Cervantes
Sufficient circumstantial evidence to convict deft o MJ-growing conspiracy; Admission of prior inconsistent statement by co-deft doesn't violate Crawford/ Confrontation Clause.

United States v. Arturo Padilla Garcia
Sufficient evidence for meth convition; phone number given during unrelated Terry stop admissible, despite prosecution's pretrail claim to have no statements of confessions; jury contamination ruling upheld.

United States v. Paul Riesselman
Incomplete warrant given to deft at time of search does not preclude the fruits of the search from admission at trial  - 4A & FRCP challenges.

Ninth Circuit:

Habeus denied as neither failure to appoint counsel after initial waiver nor counting a juvie conviction as a "strike" violates clearly established federal law as established by Scotus.

Worst Nanny Employer Ever.  Sufficient evidence for all relevant convictions, incl. forced labor.  HOWEVER, accrued back child support due the deft's kids cannot be attached as restitution, as the parents are only the conduits of the funds.

DC Circuit:

(Prepared from intros - TMB wants to get to the gym.)

Lake Carriers' Association v. EPA
EPA consideration of state pollution discharge requirements in a nationwide permit upheld, as EPA has insufficient power to challenge state CWA findings.

USA v. Mansour Salahmand
Doctor without license gets the 'vulnerable victims' sentencing bump, despite the fact that the victims were of the doctorin', not the licensin'.

Moath Al Alwi v. Barack Obama
Sufficient evidence that habeus petitioner 'was part of' (as distinct from 'provided support to') Al Quaeda; procedural challenges to denial of extra time to file and abridged discovery procedures TKO'd.

Business Roundtable v. SEC
Exchange Act Rule 14(a)11 (shareholder rights) struck down for lack of APA proccesses. 

Nazul Gul v. Barack Obama
Guantanomo inmates transferred to other countries have no Article III standing to continue their habeus claims.

Otay Mesa Property, LP v. Department of the Interior
Four tiny shrimp in a tire rut insufficient grounds for designating 143 acres as protected property.

Federal Circuit:

In sum, we hold that the Board reasonably inter-preted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art. 
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.