Friday, July 29, 2011

Published Circuit Opinons - July 29

Third Circuit:

Nicole Schneyder v. Gina Smith
Where a prosecutor has asked that a material witness be incarcerated and later does not inform the judge of a  continuance in the case, the prosecutor is liable for 4A violations under S1983 for the unreasonable (48 day) "continuing seizure."  Concurrence: Yep.

Fourth Circuit:

Janet Joyner v. Forsyth County, NC
Where a local Board of Commissioners invites all leaders of congregations within its bounds to offer spoken prayers prior to meetings, and at least some of these prayers are sectarian, the prayers violate 1A guarantees of 'public neutrality among faiths.'    Some tension with 11th Circuit holding.  Dissent: Policy of pluralistic inclusion saves any Establishment Clause violation.

Sixth Circuit:

Joseph Muniz v. Willie Smith  
Habeus for ineffective assistance of counsel denied - although attorney slept through cross of deft, the cross was not a 'substantial portion' of the trial.

Seventh Circuit:

Gerald Morisch v. USA
When filing an appeal arguing insufficiency of evidence, include the trial transcript.  Dismissed for noncompliance with 10(b)(2), as reply brief mentioned the omission and plaintiff didn't cure.

Eighth Circuit:

United States v. Edward Joseph Lowen
No suppression of pre-Miranda statements where argument for being in custody is being asked to strike certain poses for photographs; Sufficient evidence despite lack of ID from any of the bank tellers; Allowing officer's statement that the deft looked like the guy on the videotape held inconsequential.

Ninth Circuit:

Prior panel opinion no longer precedential.   Counsel will be playing the Palace - en banc scheduled

 Exhaustion requirements in IDEA are affirmative defenses, not jurisdictional restrictions.  (Circuit split flagged.)   Even where a claim addresses a harm remedied by the Act, f the pleading does not mention the Act, the exhaustion requirements don't apply.  Concurrence:  Harm-based approach: if the administrative remedy was available, the exhaustion requirements should apply as affirmative defenses; ConcurDissent:  Elevates form of pleading over its substance, defeats Congressional will.

District Court holding adopted without comment.

Tenth Circuit:

United States v. Lente
DWI manslaughter sentencing - guidelines said five years, trial court imposed 18 years.  Court of Appeals: No.  On remand, second judge imposed 16 years.  Court of Appeals here: much lengthier "No."

Kay Electric v. City of Newkirk, OK
 Municipalities are susceptible to Sherman Act prohibitions on anticompetitive conduct unless the state has authorized the specific form of anticompetitive conduct under attack.  

 James River Insurance Company v. Rapid Funding, LLC

Non-expert expert testimony barred under 701 can't be saved by applying state's rules of evidence, because applying Shady Grove test, there is no conflict between the federal rule and the state rule; Insufficient proof to establish that state statute increasing damages was meant to apply retroactively.

Eleventh Circuit:

Langfitt v. Federal Marine Terminals, Inc.
 Given right to control work, "borrowing employer" shielded from negligence suit by employee.

DC Circuit:

USA v. Rodney L. Moore
140 page crim opinion -  No Batson claim, even though judge didn't discuss each strike on record; Forcing defts to wear stun belts was kosher; Anonymous jury was kosher; Oversteps in opening and closing weren't prejudicial;  Non-expert 'overview' witness was not a means of circumventing hearsay (possible Circuit split); No violation of Brady in not disclosing plea of co-conspirator, viz, he was important and taking the drugs to someone else; Jury's finding of Conspiracy writ large within the time frame (though some specific circumstances argue for a different understanding)  is not to be disturbed; Joinder of offenses in DC Code was proper; Remand to determine if lab reports violated Confrontation Clause; No error in court's not reviewing all interrogation statements for possible Jencks Act violations; Gov't demonstrating piety of witnesses not barred under 610, as defts had challenged veracity of their conversion ot Islam; Gov't leniency to cooperating witness did not justify new trial; Not giving certain instructions did not unjustly undercut the defts' multiple-conspiracy theory; Predicate-offense claim based on the unitary conspiracy theory goes nowhere, as the theory goes nowhere; Exclusion of co-deft's confession under 804(b)(3) was justifiable, given prior & subsequent inconsistent statements; Proving withdrawal from conspiracy is a burden of ultimate persuasion, not production - (circuit split); Tension between 'aiding and abetting' instuction of 'natural and probable consequences' and required mens rea was not plain error, given the Pinkerton  instruction;  Denial of severance was kosher; Concurrence: Batson quibble.

Zuckerman Spaeder LLP v. James Auffenberg, Jr.  
 Active litigation of disputed matters creates a rebuttable presumption of default of arbitration.  
By this opinion we alert the bar in this Circuit that failure to invoke arbitration at the first available opportunity will presumptively extinguish a client’s ability later to opt for arbitration.

Federal Circuit:

District Court interpretation of terms of art in the patent was supported by the expression of the patent;  Costs and sanctions to challenging party upheld, given discovery (document destruction) and litigation oversteps.

Patenting of genes (yes) and DNA processes for cancer research - A demand for royalties from putative deft is sufficient for standing to challenge the patent; Isolated DNA is not a 'process of nature' - it is a chemical compound with informational properties, which while it has use in creating processes of nature, is not itself one (Maybe.  TMB is particularly inexpert in this field) Special concurrence: Past legislation and theory creates reliance interests and settled expectations arguing for patentability; Dissent: DNA is people!</Charlton Heston>
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.