Tuesday, August 09, 2011

Tenth Circuit -- United States v. Washington

United States v. Washington

 Use of terms "conspiring" and "attempt to kill" in indictment sufficiently signalled charge of witness tampering.

Same language in a single count isn't duplicitous, as the elements of conspiracy weren't pleaded.

Where a sequestration order is in play and the deft discovers a useful witness in the courtroom, sequestration does not necessarily bar them.  (Dictum, as held harmless error here).

Tenth Circuit -- Sherer v. United States Forest Service

Sherer v. United States Forest Service

Facial challenge to entry fee at national park TKO'd, as there are scenarios in which fees are legit, and scenarios where they aren't.  Plaintiff claim that as-applied is impossible since Forest Service never prosecutes for violations doesn't ring true, as paying a fee under protest is sufficient for standing.

Tenth Circuit -- United States v. Kitchell

United States v. Kitchell

Two unsignalled lane changes were sufficient for stop.

Totality of factors (nervous dudes in rental car with inconsistent travel plans) justified further investigation.

Large-scale tainting of US currency does not make a canine sniff of car unreasonable basis for further search.

Guns and money in car were sufficient for sentencing bump of use of a firearm in connection with another offense. 

Passenger can have constructive possession of firearms in the trunk.

Tenth Circuit -- United States v. Weeks

United States v. Weeks

No error in trial court's acceptance of guilty plea, despite confusing colloquy in the record, as no plain error is shown.

Remanded for hearing on habeus claims of ineffective assistance and unknowing plea, given modicum of support for claims in record.

Tenth Circuit -- Strope v. Cummings

Strope v. Cummings

Prisoner litigation - seeking leave to proceed IFP.  Given that the court did not enter final judgment in some of the plaintiff's prior suits, they became "strikes" for the purposes of the PLRA  150+30 days after filing.

Tenth Circuit -- Kansas Judicial Watch v. Mike Stout

Kansas Judicial Watch v. Mike Stout

Where a preliminary injunction provides requested relief, and the court indicates likely success on the merits, but the action is subsequently mooted by the acts of a third party, plaintiff's lawyers have sufficiently prevailed to receive S1983 fees.

Tenth Circuit -- Damaso-Mendoza v. Holder, Jr.

Damaso-Mendoza v. Holder, Jr.

BIA holding that the Colorado Menacing statute is a crime of violence for purposes of deportation upheld.  Comparison to ACCA holding on same statute by Circuit.



Where, prior to class certification, a putative representative of a  class declines an offer for the settlement of claims in full, the larger class claim is not moot - it relates back to original filing date when the claim is transitoy and may otherwise evade review. 

Where the court rules do not specifically indicate otherwise, no obligation to seek certification at the end of discovery.

A statute which provides a c/a does not necessarily displace an existing common law c/a.




Eighth Circuit -- United States v. Christopher Scroggins

United States v. Christopher Scroggins

 No error in denying deft's request that jury members be allowed individually to sit in drivers seat of car to demonstrate inaccessability of the compartment where the gun was.

Eighth Circuit -- John Jung v. General Casualty Company

John Jung v. General Casualty Company

Where the jurisdiction determines that a vehicle is under-insured by comparing policy limits on the vehicle with policy limits of the person, an excess policy should be counted if it would provide coverage, even if not specifically tied to the vehicle and not providing no-fault insurance (a requirement for vehicle insurance in the jurisdiction).

Eighth Circuit -- Gary Collins v. Michael J. Astrue

Gary Collins v. Michael J. Astrue

 Even where the Grids would have indicated total disability, reversible error where the ALJ does not consult them (or question a vocational counselor).

Eighth Circuit -- Green Party of Arkansas v. Mark Martin

Green Party of Arkansas v. Mark Martin

State requirement that political parties field candidates for Gubernatorial and Presidential contests does not interfere with speech & action of parties.

Having to petition every two years is not an unconstitutional burden on the party. 

No strict scrutiny, as scheme is facially neutral.

Regulations justified by state's need to prevent voter confusion, frivolous candidacies, and ballot overcrowding.

Eightth Circuit -- William Wolfe v. Fayetteville, AR School Dist

William Wolfe v. Fayetteville, AR School Dist

 No error in jury instruction holding that a Title IX claim alleging anti-gay conduct must be motivated by gender or nonconformity to stereotypical gender characteristics.

No error in refusing to give theory-of-the-case instruction that falsely labelling someone as homosexual is per se discrimination on the basis of sex.

Eighth Circuit -- Macheca Transport Company v. Philadelphia Indemnity Ins.

Macheca Transport Company v. Philadelphia Indemnity Ins.

As the terms of the insurance policy encompassed fixtures as well as buildings, the specific requirement of total, flattening collapse that Missouri courts of appeal have advanced cannot apply.

District court erred in holding that ice damage in policy could not refer to ice accumulating from mechanical processes.  Summary judgment justified.

Vexatious refusal to pay TKO'd, as insurer had a legit claim.

Seventh Circuit -- Duran, Alejandro v. Town Cicero

Duran, Alejandro v. Town of Cicero

Double recovery against police officers and employing municipality reversed, as it is properly joint and several under respondeat superior.

Under Illinois law, police confiscation of video camera immediately before use of pepper spray is not spoliation of evidence, as the tort (yes) refers to a duty to preserve existing evidence.

Even after questioning ("Your wife is Mexican?") and assertions ("I would never do something like that")  past acts indicative of bias barred as prejudicial.

Prior conviction of deft correctly excluded, at least partially because the objection to the exclusion was not renewed at trial.

Seventh Circuit -- USA v. James Green

USA v. James Green

 No Bruton violation in co-deft's reference to a "straw buyer" when deft had been clearly identified as a straw buyer earlier in the trial.  There might have been many, so the reference was insufficiently obvious.

No error in giving the sophisticated scheme sentencing bump where the scheme was sophisticated and the deft possibly less so.

No error in court's holding that there was one big conspiracy as opposed to several smaller ones.

Possible error in admission of evidence under 902(11) (Records in course of business) was harmless.

No error in gov't's repeated citation to an uncharged parallel offense.

No error in ostrich instruction (deliberate avoidance of knowledge)

Public auctions not a reliable means of calculating the damages, as not a reliable indication of true price.

Fifth Circuit -- USA v. Ricardo Soto

USA v. Ricardo Soto

Ducking, hunching and slouching of passenger provided reasonable suspicion for the stop.
[Abe Vigoda makes a mental note to avoid Texas roads.]

Dissent: Um, no.

Fifth Circuit -- Stephen Gabarick, et al v. Laurin Maritime

Stephen Gabarick, et al v. Laurin Maritime

 Where an excess insurer files an interpleader action during the pendency of a case to determine the liability of a  primary insurer, the excess insurer is not liable for prejudgment interest for the time prior to filing, as their liability had not yet been triggered.  First legit claim on their dinero was when they sought claimants on the stake.

Fourth Circuit -- US v. James Brown

US v. James Brown

 Where a plea agreement does not specifically reference a guidelines sentencing range, courts cannot subsequently lower the sentence to reflect changes in the guidelines.

The issue here is whether the crack amendments can be used to lower a pleaded sentence - parsing Sotomayor's concurrence in Freeman, the court holds that there are exceptions to the plurality's holding that the answer is generally "yes."

Third Circuit -- USA v. Kenneth Dixon

USA v. Kenneth Dixon

 Fair Sentencing Act applies to any sentences passed after its enactment, regardless of when the crime was committed.  (Circuit split.)

Third Circuit -- Otos Tech Co Ltd v. OGK America Inc

Otos Tech Co Ltd v. OGK America Inc

Where a foreign judgment has been satisfied in the foreign county, but due to fluctuations in the value of the foreign currency, the recovery has been less remunerative than it appeared to be at time of verdict, an overlapping judgment in the US cannot be enforced to "equalize" the recovery.

Second Circuit -- Rivera v. Cuomo

Rivera v. Cuomo

Successful collateral attack on conviction - since the caselaw changed between conviction and the date the conviction became final, habeus granted.

(In the interval, recklessness became a clear element of NY depraved indifference murder.)

Second Circuit -- United States v. FNU LNU

United States v. FNU LNU

 No general exception to Miranda for immigration questioning at the border - the litmus is still whether a reasonable person in the agent's position has probable cause to suspect a crime.  If yes, Miranda is in play.

90 Minute interrogation in a closed room with armed guards outside isn't sufficiently custodial to trigger Miranda, though.  Totality of circumstances.

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.