Wednesday, December 12, 2012

Excellent Post at Legal Ethics Forum

Thanks for the hat tip!


Where Congressional legislation merely ratifies a compact between states that sets up a transportation authority, it argues against the body being considered a federal instrumentality for purposes of the Little Tucker Act.

Where only three of 13 board members are federal appointees, it is insufficient to establish that the body is a federal instrumentality.

Given petitioner's assertion that the transportation authority is an unelected entity independent of elected authorities, it cannot be a federal instrumentality under the LTA. 

Transferred to the 4th Circuit under Federal Question.


Eighth Circuit -- United States v. Jeremiah Cotter

Where a shaky and nervous suspect is working on an automobile in a dodgy neighborhood and the plates on the automobile don't match the registration, police have enough for a Terry stop.

United States  v.  Jeremiah Cotter

Eighth Circuit -- United States v. Justin Birdhorse

Where deft stipulates to the crime and accepts plea deal/appeals waiver that requires acceptance of responsibility in PSR, deft cannot appeal sentence that denies the sentencing reduction for acceptance of responsibility when the PSR, based on other statements, concludes against admission of responsibility.

United States  v.  Justin Birdhorse

Eighth Circuit -- United States v. Brandon Tyerman

Where deft discloses information to his attorney, and subsequently stipulates to that disclosure for his advantage in plea negotiations, disclosure of the facts prior to the stipulation is not a violation of attorney-client privilege, as an implicit waiver can be established.

Where evidence is only potentially useful to the deft, a motion to dismiss for destruction of evidence must establish bad faith, not just reckless conduct.

Where police do not usually compare contemporaneous-to-the-crime photos of the weapon with the weapon in evidence, police testimony doesn't open the door for the deft to present evidence on the weapon's destruction.

District court did no t err in denying spoliaiton instruction which would not require bad faith.

Prior bad acts appropriately in to establish constructive possession.

Intent to permanently deprive is not necessarily an element of federal weapons theft laws.

Creation of handcuff keys was a substantial step in attempting an escape.

 United States  v.  Brandon Tyerman

Seventh Circuit -- USA v. Carlton McIntosh

Where a court order is ambiguous as to the time and place of surrender to prison, not surrendering is willful, if in the interval, administrative officials inform the convicted person of the time and place.

Where a sentence is imposed for violation of supervised release, the underlying offense for the original conviction is the benchmark for setting the sentence for the violation.

USA v. Carlton McIntosh

Sixth Circuit -- Teresa Watts v. UPS

As there is no danger of divergent state court interpretations of the terms of a CBA, federal labor law does not preempt an ADA claim.

Where a statutory ADA claim parallels a contract-based CBA claim, it can be pursued without reference to restrictions on enforcement of CBA claims. (e.g., preeemption) 

Teresa Watts v. UPS

Third Circuit -- Franklin Benjamin v. PA Department of Public Welfare

Where a 23(b)(2) certified class, by its terms, excludes those otherwise qualified but who do not seek the asked-for remedy, the excluded parties can intervene as a matter of right at the remedy stage of the litigation where the remedy imperils a cognizable interest of theirs.

Timely motion to intervene on a Settlement Agreement can relate back to establish timeliness for a class certification intervention where the composition of the class is not fixed.

Interests of the parties as an element of adequacy of representation can shift between liability stage and remedy stage.

Franklin Benjamin v. PA Department of Public Welfare
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.