Thursday, August 04, 2011



 Where the amount of stock donated to charitable institution is tied to the valuation of the stock, the valuation is not a condition precedent to the transfer.  (The stock passes when it passes.)

Ergo, the charities can deduct the additional shares.



 S1981 Retaliation claim governed by 4 year federal SOL, not state.

IIED governed by state SOL.

No equitable estoppel on EEOC SOL where other party doesn't introduce a piece of evidence that is also in the plaintiff's possession.

No equitable tolling while pursuing an appeal in another circuit, where the present claim could be filed during pendency.

No equitable tolling from mental incompetence where plaintiff is actively involved in litigation in other circuits.

No error in dismissal of abuse of process & fraudulent concealment.



 No error in not allowing testimony as to citizenship of grandfather - deft was mounting a derivative citizenship defense - while relevant, potentially confusing and insufficiently probative.

 A mere scintilla of evidence in the record is insufficient to justify a jury instruction on the theory.

Multiple illegal entries properly grouped and given the multiple offenses sentencing bump.

No substantive/procedural error in sentencing.

Ninth Circuit -- USA V. BINGHAM


 Sufficient evidence to convict on VICAR murder after gang member said there was a "war" on with another gang.

RICO conviction upheld, despite the fact that the gang had reorganized during the term of the offense : The particular structure under which the AB operated at the time of the various predicate acts is not determinative of the relatedness of those acts.

Stabbing under the arm is attempted homicide, not mere assault.

Second pair of bloody trousers means no DP violation in destruction of bloody trousers, no evidence police knew they were potentially exculpatory.

Cannot assume that prosecutor knew that prior inconsistent statement was true.

Pinkerton culpability can establish RICO predicates.

No burden on gov't to present exculpatory evidence to grand jury.

No error in declining to admit an indictment from another prosecution where the defts are not named in the second indictment.

Eighth Circuit -- Steve McCoy v. Michael J. Astrue

Steve McCoy v. Michael J. Astrue

 No error in ALJ determination that claimant's symptoms did not match disease profile, as substantial evidence supported ALJ finding.

While an ALJ does have a duty to develop the record, this duty is not never-ending and an ALJ is not required to disprove every possible impairment.

ALJ's consideration of non-exertional limitations not under the grids was kosher.

Balance of ALJ's findings justified by substantial evidence.

Eighth Circuit -- United States v. Hillard Garrett, Jr.

United States v. Hillard Garrett, Jr.

 Jury could reasonably find that deft chucked the gun out of the car window when fleeing from police.

No error in denying mistrial after mentions of drug investigations by witnesses.

Two firearms offenses fifteen months apart were correctly joined.

No improper joinder, as no evidence of jury taint.

Eighth Circuit -- United States v. James Scudder

United States v. James Scudder

 Indiana child molestation statute is categorically a violent crime under the ACCA residual clause.

Seventh Circuit -- Dynegy Marketing and v. Multiut Cor

Dynegy Marketing v. Multiut Corp.

Merely naming an amount for counterclaim damages insufficient after several motions to compel - underlying rationale must be shown.

Without specific agreement, vague, general understanding of MFN pricing is not a contract.

"We'll work on it" does not create a contract for lock-in pricing.

Not invoicing interest payments does not create a contract that interest will not be paid.

Alleged manipulation of gas price indices does not vitiate damages claim.

Signatories personally liable as third-party guarantors despite partial noncompliance of coparties.

Where one party later does a deal with a competitor of a company with which it had a confidentiality agreement, breach of the CA may be too speculative for even the inevitable disclosure doctrine to apply.

No proof of ultimate harm in Robinson-Patman Act challenge.

Seventh Circuit -- Yu Li v. USA

Yu Li v. USA

 No ineffective assistance where counsel proposes an instruction without specific intent, where the proposed instruction was in use in another circuit.

No ineffective assistance in not objecting under confrontation clause to videotaped depositions / read transcripts of depositions.

No ineffective assistance because of language barrier where deft engaged in extended (yes/no) colloquy with court & ran a restaurant for many years in Wisconsin. 

Sixth Circuit -- USA v. Aaron Harvey

USA v. Aaron Harvey 

Trial court can reasonably find that deft's claim that he intended at time of purchase to keep the guns for himself was bogus.

Deft crossing witness on inconsistencies in initial interviews opened the door to admission of deft's recorded statement.

No error in court using motive/intent instruction where it doesn't seem to be relevant.

No error in judge reading extended sections of transcript to jury in response to questions.

No error in sentencing bump, as jury could reasonably find that deft knew that the guns would be used in drug crimes.

Sixth Circuit -- Center for Bio-Ethical Reform v. Janet Napolitano

Center for Bio-Ethical Reform v. Janet Napolitano 

 Pro-life organization plaintiffs have not plausibly alleged the existence of a DOJ Right Wing Extremists policy.

No 1A retaliation claim, as nothing specifically pleaded that would prevent a person of ordinary firmness from helping out with that whole fetus-pictures-on-eighteen-wheelers thing.

These vague and conclusory allegations of nefarious intent and motivation by officials at the highest levels of the federal government are not well-pleaded, and are therefore insufficient to “plausibly suggest an entitlement to relief.”

No equal protection claims, as no plausible pleading of disparate treatment.

Sixth Circuit -- USA v. Tyrone McMurray

USA v. Tyrone McMurray

Predicate offense priors do not need to be established beyond a reasonable doubt in present trial.

Tennessee recklessly causing serious body injury statute not categorically a violent crme for ACCA.

Shepard papers do not establish that deft committed violent crime - despite prosecution colloquy at time of plea, deft's 'best interest' (Alford) plea & silence with respect to prosecution's colloquy means that the offense gets narrowest, saving interpretation. 

Fifth Circuit -- Robert Rabe v. Rick Thaler, Director

,Robert Rabe v. Rick Thaler, Director

As habeus review is limited to facts in the state court record, counsel's declaration (accepted by the trial court) that he tried to locate the alibi witness TKO's the ineffective assistance claim.

Third Circuit -- Pernod Ricard USA LLC v. Bacardi USA Inc

Pernod Ricard USA LLC v. Bacardi USA Inc

 Where the bottle of rum clearly states that it was made in Puerto Rico, no Lanham Act violation (misleading as to origins) in the label "Havanna Club."

(Coincidentally, plaintiff's are in same multiternational agglomeration that formerly held the TM on the term.)

Third Circuit -- Funk v. CIGNA Group Ins

Funk v. CIGNA Group Ins

 Insurance denial was congruent with plan restrictions - employee had to be capable of earning 60% of base wages, insurance co. found him capable of returning to old job.

Where the Plan functions as a third-party administrator, there is no de facto substantial conflict of interest.

Plan language requiring repaymment of SSA proceeds sufficient to place an equitable lien against SSA income.

First Circuit -- Igartua v. US

Igartua v. US

En banc rehearing denied.

ICCPR is not self-executing, and therefore does not bind US Courts.

Concurrence: After MedellĂ­n and Abbott, we cannot ignore the consistent and strongly held views of the Executive and the Senate that the ICCPR is not self-executing.

Dissent (though not called a dissent in the opionion) - Significant constitutional issues raised, quotes from Koz & Easterbrook on threshold of risk to liberties for en banc, Medellin didn't examine the issue closely enough; 

Dissent  - Constitutional and treaty questions justify en banc hearing.

Dissent - Enfranchisement of millions warrants hearing.

Second Circuit -- U.S.A. v. Jackson

U.S.A. v. Jackson 

Sufficient evidence that deft told someone to kill someone else, despite killer testifying that there was no explicit instruction.

No error in barring defts prior taped statements, as they did not illuminate portions of tape introduced by govt as adverse party statements.. 

Where jury convicts on a lesser charge but can't reach agreement on a greater charge, a lesser included offense within the greater charge may be tried later without incurring Double Jeopardy - govt gets 'one complete opportunity.'

A possibly erroneous sentence which runs concurrently with a longer sentence does not sufficiently imperil substantial rights of deft.

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.