Thursday, December 13, 2012


Missed indicia of nonobviousness.



Retroactive revocation of qui tam provision does not violate Due Process or Intellectual Property clauses.



(11 page caption)

From summary:

Secretary's decision on reimbursement rates need not follow any specific procedure to be subject to Chevron deference.

Interpretation was reasonable.

Medicaid does not create property rights for Takings purposes.


Eighth Circuit -- United States v. Jovica Petrovic

Stalking statute does not offend 1A as-applied, given the extortionate threats.

Overbreadth insufficient basis for facial challenge, given the many constitutional functions of the statute.

No error in denying mistrial after a witness remarked that a website looked 'criminal.'

Intimate relationship can be a thing of value for purposes of the extortion statute.

Sufficient evidence for perjury sentencing bump and conviction generally.

United States  v.  Jovica Petrovic

Eighth Circuit -- Kyna La v. Eric H. Holder, Jr.

Political harassment and intimidation does not suffice to prove political persecution for immigration removal purposes.

While petitioner's belief in future risk was subjectively true, it was not objectively valid.

Overseas consultations were insufficient to awaken a presumption that the foreign government is now aware of the asylum application.

Kyna La  v.  Eric H. Holder, Jr.

Eighth Circuit -- United States v. William Stegmeier

Trial court correctly found mens rea for harboring a fugitive, given the transportation and off-the-books job-hunt.

Giving access to RV where gun is kept is sufficient for elements of statute prohibiting giving a firearm to a fugitive.

In that it was an RV and not a house, no 'host liability' theory for a 2A challenge.

United States  v.  William Stegmeier

Eighth Circuit -- United States v. James Bruguier

Federal rape statute does not require that the deft know of the victim's incapacitation.

Charging that deft engaged in conduct and then issuing a jury instruction that the deft caused the conduct is not a constructive amendment of the charge.

Sufficient evidence for the unlawful entry element of burglary, given the crawling in the bedroom window late at night.

No error in sentencing bumps.

United States  v.  James Bruguier

Eighth Circuit -- United States v. Larry Rouillard

Federal rape statute requires deft know of the inability of the victim to consent.

United States  v.  Larry Rouillard

Seventh Circuit -- Int'l Brohd of Teams v. Kienstra Precast

Terms of an intrastate CBA are not covered by the Federal Arbitration Act, as the workers involved occasionally carted loads into an adjacent state, making them interstate transport workers according to S1 of the Act.

Where a CBA governs interstate workers under S1 of the Act but the successor corporation later operates exclusively within the state, the workers under the CBA are still considered interstate workers.

Int'l Brohd of Teams v. Kienstra Precast

Seventh Circuit -- Estate of Rudy Escob v. Brian Martin

As a result of a suicidal call to 911, the police showed up, and after fruitless discussions, released four volleys of tear gas, a stun grenade which set the living room on fire, a second stun grenade in the room where the caller was, and then after the caller lowered the gun from his own head and pointed it at the officers who had stormed in, they shot the caller dead.  A S1983 suit for excessive force resulted.

No error in trial court's admission of psychological testimony unavailaible to the officers at the time of the incident, as the plaintiff had opened the door by arguing deft was well-balanced, and it was offered to clarify earlier testimony by physician.

Jury properly instructed that plaintiff had to establish causation for excessive force, not causation for eventual death.

Deft's exoneration makes damages phase error harmless.

No clear error in grant of qualified immunity on excessive use of tear gas & stun grenades, as the right wasn't clearly established.

No error in grant o SJ as the testimony that the caller pointed the gun at the police was uncontroverted.

Estate of Rudy Escob v. Brian Martin

Seventh Circuit -- KS Energy Services, v. Hilda Solis

Substantial evidence for ALJ's holding that the soil in a work area was subject to vibration and previously disturbed, given the possibility of vibration and pre-existing pipe runs.

KS Energy Services, v. Hilda Solis

Sixth Circuit -- Georgia-Pacific v. Four-U-Packaging, Inc.

District court correctly permitted invocation of defensive collateral estoppel, as, despite the differences in the parties intent in the prior litigation, the external circumstances were substantially the same. 

Variation in circuit tests for likelihood of confusion in patent litigation does not bar collateral estoppel.

Variation in the statutory & tort causes of action does not bar collateral estoppel, as the summary judgement in the first case requied the court to reach the underlying question of confusion between the two products.

No risk of inconsistent rulings as a result, as the contrary circuit precedent has since been vacated.

Georgia-Pacific v. Four-U-Packaging, Inc.

Fifth Circuit -- Angelo Gonzalez v. Ronnie Seal, et al (12/12)

Given recent Scotus holdings, exhaustion of administrative relief is mandatory requirement for prisoner S1983 suits challenging prison conditions.

Angelo Gonzalez v. Ronnie Seal, et al

Fifth Circuit -- Fannie Garcia v. City of Laredo (12/12)

Stored Communications Act does not apply to information stored in a directly accessed cell phone, as it is not a 'facility' as contemplated by the statute and the information is not in 'electronic storage.'

Where counsel makes ex parte contact with judge and is admonished and judge later criticizes the quality of the lawyer's work, the judge is not required to recuse him or herself.

Fannie Garcia v. City of Laredo

Fourth Circuit -- US v. Jesus Torres-Miguel

California criminal threat statute is not categorically a crime of violence, as it is possible to injure someone without using force.  Circuit split with the 9th flagged.

There is no generic definition of criminal threat - it is a creation of the statute.

US v. Jesus Torres-Miguel

Fourth Circuit -- US v. Phillip Hamilton

No abuse of discretion in holding that clickwrap waiver of privacy in workplace computer and lack of any subsequent measures by deft to preserve privacy waived the marital privilege between deft and his wife.

Circumstantial evidence sufficient for bribery conviction -- finder of fact can impute intent.

No abuse of discretion in denying a gratuity instruction where gov't case was strict bribery.

For purposes of the sentencing bump, benefit accruing to a third party counts, not just that portion ultimately gained by deft. 

US v. Phillip Hamilton

Fourth Circuit -- US v. Jimmy Hilton, Jr.

No clear error in trial court's holding that deft's description of her invocation of right to counsel was a bit more forthright than what actually happened, given police testimony to the contrary.

Where deft asks to go pro se at the beginning of jury selection and such a request risks undue delay, no clear error in deferring the shift to pro se representation to the beginning of the actual trial.

Federal identity theft statutes do not apply to those accused of 'stealing' a corporation's identity -- the use of 'person' and 'individual' is too ambiguous, given canon of lenity.

Where an employee has the authority to remove items from the company PO box, but does so with the intent of stealing something, the mail theft statutes apply.

Mailed invoices resulting in the checks to be stolen suffice for the mail fraud statute.

US v. Jimmy Hilton, Jr.

Second Circuit -- Sousa v. Marquez

Plaintiff claims that a misleading administrative report undercut his right of access to the courts in a prior suit and is filing a S1983 suit to redress.  Here, the Second Circuit declined to speculate on whether such a 'backward looking' right of access cause of action exists in the Circuit.

In backward-looking right of access suits, the manipulation of the information must be the dispositive factor in the resolution of the case.  Here, plaintiff had all the relevant facts, regardless of what the report said.

Insufficient proof of causation between the representaition and the verdict means that there is no genuine dispute of material fact.  SJ appropriate.

 Sousa v. Marquez

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.