Thursday, October 13, 2011

Eleventh Circuit -- Delgado v. Florida Department of Corrections

No double jeopardy where Appeals Court sets aside the conviction for a faulty legal theory as opposed to an insufficiency of the evidence.

State's theory on burglary was TKO'd on appeal - felony murder and premeditated murder were tied to it.  (The latter as an included offense.)

Delgado v. Florida Department of Corrections 

 [Thou shalt not kill.  TMB.]

Tenth Circuit -- Twigg v. Hawker Beechcraft Corporation

District Court correctly TKO'd S1981 and FMLA retaliation claims for lack of proof.

Twigg v. Hawker Beechcraft Corporation

Ninth Circuit -- USA V. MICHAEL MCENRY

District Court erred in sentencing deft convicted of noncommercial piloting without a license according to the range for interfering with the safety of an aircraft - the correct comparator is piloting a commercial airplane without a license.

Look to the categorical offense, not the conduct.


Ninth Circuit -- USA V. GREGORY REYES

No prosecutorial misconduct in advancing theory of self-dealing despite structural bars in the operation which woould have barred self-dealing - govt was forthright.

No prosecutorial misconduct in testimony, as not demonstrably false.

No error in materiality finding, given impact on general financials.

Restatement of earnings not dispositive, but part of the total mix.


Ninth Circuit -- USA V. LENNY URENA

No abuse of discretion in not issuing self-defense instruction where deft was prisoner responding to a slur with a shank.

No error in limiting cross of MD to extent of injuries, not cause of injuries.

No procedural error in sentence, as change in guideline was not retroactive.



Chevron deference to administrative order setting reasonable pricing in light of market rates.

No burden on agency to verify markets empirically.


Eighth Circuit -- Christian Escoto-Castillo v. Janet Napolitano

 Petition for immigration review TKO'd for not exhausting administrative remedies & requiring grounds not in the record.

(Said grounds: state court sentencing order of 364 days, and the predicate requires a one year sentence.)

Christian Escoto-Castillo v. Janet Napolitano

Eighth Circuit -- Chanh Lovan v. Eric H. Holder, Jr.

 Where deportation waivers were available prior to non-retroactive repeal of enabling statute, the particulars of a petition must be weighed as they would have been prior to the repeal - not according to the later administrative rules designed to exclude those categories of offenses covered by the earlier statute.

Chanh Lovan v. Eric H. Holder, Jr.

Eighth Circuit -- SEC v. Sherwin Brown

 District Court did not err in issuing summary judgment without allowing deft to respond, as deft invoked 5A after responding to the interrogatory that he now wishes to use.

Disgorgement was appropriate remedy.

Dissent - Inadequate showing of need for equitable remedy of disgorgement; striking pre-5A interrogatories overbroad.

SEC v. Sherwin Brown

Fifth Circuit -- Robert Evans, et al v. Sterling Chemicals, Inc.

Asset Purchase Agreement effectively amended ERISA plan.

Although subsequent rejection in bankruptcy negatived the contractual basis of the agreement, the ERISA guarantee is stronger.

Robert Evans, et al v. Sterling Chemicals, Inc.

Fifth Circuit -- Oscar Jimenez, et al v. Texas Alcoholic Beverage Comm.

 No plain error in District Court's S1983 instruction that reasonable suspicion was required for strip-searches of prisoners suspected of minor offenses.

Even though instruction was in accord with precedent, no futility exception - objection was not preserved at trial.

No abuse of discretion in instruction holding that Hindering Apprehension was a minor offense as a matter of law.

Dissent - Objection preserved, decision not in accord with Scotus precedent holding that the criterion is the effective operation of the detention facility, not the specific crime of the prisoner. 

Dissent 2 - Not in accord with the Scotus precedent.

Dissent 3 - Search not required if detainee doesn't enter general population.

Oscar Jimenez, et al v. Texas Alcoholic Beverage Comm.

First Circuit -- US v. Pleau

Once the Federal Government has sought custody of a prisoner under the IAD, it cannot by writ of ad prosequendum circumvent the statutory power of a Governor to decline to surrender custody.

Appropriate standard is that for advisory writs, not usual madamus/prohibition.

Absent IAD, State would have to honor the writ.

DISSENT:  Writ has been validly issued.

US v. Pleau 

[Thou shalt not kill.  - TMB]

First Circuit -- US v. Rodriguez

Massachusetts Larceny From the Person statute is an ACCA predicate.

US v. Rodriguez

First Circuit -- Bucci v. US

Habeus 6A claim resulting from the partial closure of the courtroom during jury selection (abundance of venirepersons) was procedurally defaulted given lack of objection at trial.

Ineffective assistance claim does not save, as counsel might have reasonably have decided not to object.

No error in conducting 2255 hearing without petitioner.

Remand for hearing as to whether codeft's counsel was in the room at the time.

No Article III violation in the room being closed by clerk.

No Brady violation - no prejudice.

No coercion of prosc. witness.

Bucci v. US 
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.