Monday, December 17, 2012







Tenth Circuit -- United States v. Farr

No error in admission of prior bad acts.

Sufficient evidence for tax charge.

No error in the IRS' seking of civil rather than criminal penalties.

Law of Case doctrine bars Double Jeopardy claim.

United States v. Farr

Tenth Circuit -- Gonzales v. City of Albuquerque

Where Employee Manual says that a certain class of workers is eployed at will and lists grounds for immediately ending their employment, no expectation of employment is created.

No implied expectation either.

Gonzales v. City of Albuquerque

Tenth Circuit -- United States v. Santistevan

Giving police a letter from one's lawyer saying that one does not want to talk to them is sufficient invocation of the right to counsel.

Dissent: Not if you do it silently.

United States v. Santistevan

Ninth Circuit -- USA V. JORGE OLIVA

Knowledge of specific copyright and the forum state of the copyright holder is sufficient purposeful direction  to bring claim under the jurisdiction of the long-arm statute of that forum.


Eighth Circuit -- Super Wings International v. J. Lloyd International, Inc.

Claim of lack of consideration on the contract doesn't prevail, as the performance of the obligation was attempted.

Super Wings International  v.  J. Lloyd International, Inc.

Eighth Circuit -- United States v. Robert Montgomery

Deft's challenge to the PSR was to the actus reus, not the mens rea - the intent alleged can therefore be used to establish the conviction as an ACCA predicate.

Within-guidelines sentence not unreasonable.

United States  v.  Robert Montgomery

Eighth Circuit -- Randy Russell v. Whirlpool Corp.

Expert who did not apply a particular customary standard is not therefore barred -- the only requirement of the precedent is that where the standard is applied, it should be done correctly.

Expert testimony can derive from the expert's casual observation of the scene.

Where the fridge is the most charred, sufficient evidence for the finder of fact to decide the issue of where the fire started based on res ispa loquitor.

Witnesses' reference to 'the theory' was not a sufficiently improper barred reference to past problems with the device.

Randy Russell  v.  Whirlpool Corp.

Eighth Circuit -- Shannon Jacks v. Meridian Resource Company

Appeals court has jurisdiction over order of remand to state courts, as remand under local-controversy provision of CAFA is not a divestment of subject-matter jurisdiction.

Federal health plan carriers are not separate entities doing business under a regulatory scheme -- they exercise delegated powers of the government -- removal to federal court is therefore possible under Federal Officer grounds.

Shannon Jacks  v.  Meridian Resource Company

Seventh Circuit -- Brian Burd v. Gail Sessler

No basis for a S1983 damages claim for lack of access to the prison library absent proof that the underlying appeal was likely to succeed.

Such claim is barred even where no collateral relief is possible if the petitioner earlier had the option of seeking collateral relief and decided not to.

Brian Burd v. Gail Sessler

Sixth Circuit -- Crystal Dixon v. University of Toledo

As Human Resources official was a policymaker speaking on a matter of policy, comments in speech are not protected under 1A.

Vague claims that the institution has too much discretion in the matter are not sufficient to move past summary judgment.

No Equal Protection claim, as no valid comparator.

Crystal Dixon v. University of Toledo

Fourth Circuit -- US v. Kristen Smith

Possible error in allowing expert testify without prior disclosure as to generic alcohol metabolization rates was harmless.

Per se requirment in drunk driving statute does not trigger prosc duty to offer a relation-back testimony to establish inebriation at the time of accident - totality suffices.

No error in denying jury instruction on relation back where proof by totality was possible.

US v. Kristen Smith

Fourth Circuit -- David Evans v. Patrick Baker

(10 page caption.  Duke Lacrosse case.)

In a S1983 action, the claim of a police/prosecutor conspiracy does not make the police liable for actions taken after the prosecutor's independent decision to seek an indictment.  This decision breaks the causal chain and eliminates proximate cause, giving the police qualified immunity.

Police reliance on nurse' report doesn't DQ the warrant under Franks.

Disinclusion of potentially exculpatory evidence doesn't trigger Franks - no duty to disclose all.

Police defts' omissions in affidavits weren't enough to trigger Franks, so they get QI.

Absent individual claims, no Monell liability.

Governmental endorsement in liability insurance policy means that the purchase of the policy did not forfeit sovereign immunity.

State malicious prosecution tort claim partially prevails.

There is no common law obstruction of justice tort available against a police officer during the course of an investigation.

Court declines to exercise pendant jurisdiction over state constitutional claims - and as the claims are at the stage of motion to dismiss, they're nonfinal for purposes of appeal.

Concurrence: Yep.

Concurrence/Dissent: Would have dismissed state common law claims as well.

David Evans v. Patrick Baker

First Circuit -- Evanston Insurance Company v. Jasmine Company, Inc.

As, depending on the presumption, early comments might or might not have brought the harassment outside of the insurer's duty to defend, cross-motions for Summary Judgment denied.

Evanston Insurance Company v. Jasmine Company, Inc.

First Circuit -- US v. Powers

Evidence that attorney knew of the situation is insufficient on its own to justify an advice-of-counsel instruction where the lawyer doesn't testify.

IRS agents can testify as to ultimate decisions of the factfinder when it's about tax matters.

Trial court imposed reasonable limits to keep other witnesses from giving opinions as to ultimate matters.

Trial court appropriately limited debate on question of document's admission.

US v. Powers

First Circuit -- US v. Burgos

Insufficient evidence that deft willingly joined conspiracy.  Remanded with instructions to acquit.

US v. Burgos

First Circuit -- US v. Guadalupe

No sentencing error, as the obstruction of justice bump wasn't a factor int the sentence ultimately awarded (under ACCA).

US v. Guadalupe
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.