Thursday, November 29, 2012

End of day

Additional decisions in the 7th, 8th & 11th.  All will be posted tomorrow. 

Sixth Circuit -- American Beverage Association v. Snyder

No Dormant Commerce Clause violationin Michigan's requirement that all recyclable cans carry a mark unique to the state, as any manufacturer is free to put the mark on the can.

No discriminatory effect, for same reason.

However, the labeling requirement is extraterritorial burden on manufacturers, and therefore violates the DCC

Concurrence: Extraterritoriality, schmextraterrritoriality

 American Beverage Association v. Snyder

Sixth Circuit -- USA v. Lawrence S. Duran, et al

Denial of SJ on S1983 claim -- given the dog attack and the choke-hold, inappropriate force remains a possibility.  No immunity for supervisory liability claim.

Concur/Dissent -- No supervisory liability.

USA v. Lawrence S. Duran, et al

Fourth Circuit -- US v. Roger Day, Jr.

Deft can be convicted for aiding and abetting after being only indicted for the principal offense - not an illicit variance.

No holding on circuit split issue of whether deft has standing to raise defense of speciality from variance between the extradition and the conviction.  Court reaches merits anyway, as Article III standing exists either way, and the speciality standing question is prudential.

Aing and abetting is not a separate offense for purposes of speciality analysis.

Intent in taking the gold to Mexico suffices for money laundering statute - not just the fact that the gold was hidden in the car.

Gold is "funds" for purposes of the money laundering statute.

De minimis acts during a conspiracy suffice for venue.

FRE: prejudicial report properly excluded; other bad act evidence correctly admitted, as intrinsic to the crime.

No Apprendi error in 3m fine, as deft admissions raised the statutory maximum.  Apprendi doesn't apply to restitution and forfeiture.

US v. Roger Day, Jr.

Fourth Circuit -- US v. Terrence Vaughan

Terry stop not unduly prolonged for 13 minutes while waiting for dog to arrive, given justifiable suspicions aroused by four cell phones of different makes on the dashboard and passengers' inconsistent stories about travel plans.

US v. Terrence Vaughan

Third Circuit -- Cheryl James v. Wilkes Barre City

When police officer insists that parent accompany minor child to the hospital, this is as a matter of law insufficient seizure for a false arrest claim under S1983.

Cheryl James v. Wilkes Barre City

Second Circuit -- United States v. Coplan

Klein conspiracy is a well-settled question - Scotus & circuit precedent endorsed.  No a common-law crime, but creature of the statute.

Insufficient evidence for conspiracy -- possibly just good faith tax prep.

Knowing joinder of conspiracy needed for Pinkerton culpability.

Much dicussion of sufficiency of the evidence for different counts of conspiracy.

As deft was trying to mislead IRS agents in SDNY, materiality requirement in statute means that venue is proper in SDNY.

Admission of statements by unindicted party sufficiently probative, as finder o fact could have decided that it was reasonable to think that the statements at issue found their way to the conspirators.

Admission of co-conspirator statements does not require formal finding of a conspiracy for each statement or conspirator.

No abuse of discretion in barring deposition transcript under hearsay when introduced for the purpose of proving general truthfulness during the deposition.

Prosc. referrencing matter in opening means that its not a new issue in rebuttals.

Given data known by deft, conscious avoidance instruction was appropriate.

District Court erred in imposing fine over statutory maximum.  Other sentencing not unreasonable.

United States v. Coplan

Second Circuit -- Ackerson v. City of White Plains, et al.

No probable cause to arrest on NY menacing charge if deft merely follows putative victim -- there must be physical threat.

 No qualified immunity for S1983 claim against officers & municipality.

Ackerson v. City of White Plains, et al.

First Circuit -- Newton v. LePage

Mural in a waiting room for government offices is not within a limited public forum.

Maintaining the appearance of neutrality is a legitimate government interest.

Adjusting artwork in offices is within the government's discretion.

(No stated holding on standing / identity of speaker.)

Newton v. LePage

First Circuit -- City of New Bedford v. Locke

Agency decision that its rulemaking is not subject to certain statutory constraints is itself entitled to Chevron deference.

Agency hard look sufficed for NEPA analysis requirement.

As for the fish, there ain't quite as many as there was a while ago.

City of New Bedford v. Locke
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.