Tuesday, April 23, 2013

Short Form: Friday and Monday

First Circuit:

US v. Francois  -- No abuse of discretion in denying new appointed counsel; despite sub-par Faretta warning, no error in allowing deft to go pro se; sufficient factual basis for jury instruction on flight; voluntary appearance at police station to report a crime doesn't trigger Miranda; remand for sentence in excess of maximum.

Calderon-Serra v. Wilimington Trust Company  -- For-profit securities issued by a nonprofit do not trigger protections under the Trust Indenture Act.

Liu v. Holder  -- Immigration: Adverse credibility finding of court below was supported by substantial evidence.

Somascan, Inc. v. Philips Medical Systems  -- FRCP: no error in denying leave to amend the complaint long after the deadline.  

Lund v. Fall River, MA -- (Souter) Boils off at two: Site identified as alternate development area for adult-themed business was both reasonable and constitutional.

Second Circuit:

National Organization for Marriage, Inc. v. Walsh -- PAC challenge to restrictive statute is ripe, given the likelihood that it would be applied to them; Dissent: no state agency has said that it would apply.

Santana v. Holder -- Second Degree Arson is a crime of violence for immigration purposes; Even if you set fire to your own property, it could spread.

Paskar v. USDOT -- Administrative Law - Agency letter insufficiently final for purposes of appellate review.

Third Circuit:

Michel Sylvain v. Atty Gen USA -- Immigration authorities retain power to detain those subject to removal after the person in question has been released from custody; Statute saying that the detention must happen "when" released doesn't set a firm deadline.

Fourth Circuit:

Josephine Spaulding v. Wells Fargo Bank, N.A.  -- Claim not stated for mortgage fraud: (1) Breach of implied contract; (2) Negligence; (3) State statute; (4) Negligent misrepresentation; (5) Fraud.

Fifth Circuit:

R&L Investment Property, L.L.C v. Guy Hamm, et al -- Ratification of promissory note after discovering error in permit means that the purchaser has no fraud claim based on sub-par permitting of site.

Madhwa Raj v. LSU, et al -- Employment claim against a university - sovereign immunity bars most claims; Title VII claim not stated, as nothing in claim to suggest discriminiatory animus.

Frank Teta v. Michelle Chow -- Class actions / bankruptcy - court should consider bankruptcy-related factors (procedural options, cost to estate) when assessing class certification.  Remanded because insufficiently explained. CIJ.

USA v. Richard Scruggs -- White collar: Skilling challenge TKO'd, as the crime in question was bribery; pre-Skilling guilty plea doesn't establish sufficient cause for collateral challenge; Sufficient evidence to disprove actual innocence claim; Statute not overbroad enough to chill political speech.

Sixth Circuit:

Harold Wallace v. Midwest Fin. & Mortg. Serv.  -- Lender's allegedly inflated assessment of property was sufficiently proximate to petitioner's losses that a civil RICO claim is stated; State law conspiracy claims dismissed.

Seventh Circuit:

Central States, Southeast and v.   Charles Nagy -- Entrepreneur's leasing of property was trade or business sufficient to trigger personal liability for later ERISA shortfall.

Jimmy Smith, Jr. v.   Sangamon County Sheriff's Dept -- No S1983 claim based on post-arrest assault committed by inmate detained prior to trial, as no systematic disregard of obvious risks in the jail's sorting system.

Linda White v.   Marshall & Ilsley Corporation -- Continuing to offer company stock in the retirement plan during a 54% decrease in price is not a breach of fiduciary duty under ERISA.

Eighth Circuit:

(From court website)

111382P.pdf   04/22/2013  United States  v.  Chevie Kehoe
  U.S. Court of Appeals Case No:  11-1382
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Wollman, Author, with Riley, Chief Judge, and
  Melloy, Circuit Judge]
  Prisoner case - Habeas. In Young v. Bowersox, 161 F.3d 1159 (8th Cir.
  1998), this court rejected the argument that an ineffective assistance
  counsel claim based on a Batson error should be considered a structural
  error entitled to a presumption of prejudice and determined that to
  succeed on such a claim, the petitioner must demonstrate a reasonable
  probability that the results of the proceeding would have been different;
  here, in order to succeed on his claim of ineffective assistance of counsel,
  Kehoe must demonstrate that he suffered prejudice as a result of his
  attorney's actions in striking potential jurors on the basis of their race in
  violation of Georgia v. McCollum, 505 U.S. 42 (1992), and he failed to
  do so.

121416P.pdf   04/22/2013  Clarinet  v.  Essex Insurance Co.
  U.S. Court of Appeals Case No:  12-1416
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Riley, Author, with Wollman and Melloy, Circuit Judges]
  Civil case - Insurance. The district court did not err in determining that
  coverage was barred under the "owned property exclusion" in the policy.

122613P.pdf   04/22/2013  United States  v.  David Allen
  U.S. Court of Appeals Case No:  12-2613
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
  Criminal case - Criminal law. Probable cause existed to arrest
  defendant for possession of counterfeit checks, and the search of his car
  was a lawful search incident to arrest as the officers had reason to believe
  the vehicle contained evidence of the offense; the luggage stored on the
  motel luggage cart could be searched as there was a reasonable
  probability that the evidence on the cart would have been discovered after
  defendant's arrest during an inventory search.

122796P.pdf   04/22/2013  Rosa Gutierrez  v.  Eric H. Holder, Jr.
  U.S. Court of Appeals Case No:  12-2796
  Petition for Review of an Order of the Board of Immigration Appeals    
  [PUBLISHED] [Gruender, Author, with Murphy and Smith, Circuit Judges]
  Petition for Review - Immigration. Petitioner failed to establish that it
  would have been unreasonable for her to relocate in Columbia as required
  under the federal regulations outlining the eligibility requirements for
  withholding of removal - 8 C.F.R. Sec. 1208.16(b)(2) - and the IJ and
  BIA did not err in finding she was not eligible for withholding of
  removal; further, proceeding to the merits of her claim, the record showed
  she had not suffered past persecution which would create a presumption
  that she has a well-founded fear of future persecution and she had not
  shown a clear probability of future persecution on a protected ground; no
  error in denying CAT relief.

123634P.pdf   04/22/2013  John Arnzen, III  v.  Charles Palmer
  U.S. Court of Appeals Case No:  12-3634
  U.S. District Court for the Northern District of Iowa - Sioux City    
  [PUBLISHED] [Arnold, Author, with Bye and Benton, Circuit Judges]
  Civil case - Civil rights. In action by patients at the Iowa Commitment
  Unit for Sex Offenders challenging the placement of video cameras in the
  facility's restrooms, the district court did not err in granting a preliminary
  injunction ordering that cameras in "traditional style" bathrooms (as
  opposed to "dormitory style" restrooms) be pointed at the ceiling or
  covered with a lens cap, as capturing images of patients in single-user
  restrooms violated the patients' reasonable expectations of privacy.

113860P.pdf   04/19/2013  Juan Martinez Carcamo  v.  Eric H. Holder, Jr.
  U.S. Court of Appeals Case No:  11-3860
  Petition for Review of an Order of the Board of Immigration Appeals    
  [PUBLISHED] [Riley, Author, with Colloton and Gruender, Circuit Judges]
  Petition for Review - Immigration. Assuming petitioners' accounts of
  the ICE officers' conduct are true, any Fourth Amendment violations they
  suffered were not sufficiently egregious to entitle them to the remedy they
  seek - exclusion of decisive evidence in their civil removal proceeding;
  while both the IJ and the BIA erred in their treatment of petitioners'
  testimony, the errors did not require a remand because they were not
  prejudicial since they were relevant only to petitioners' Fourth
  Amendment claims and did not go to the factual finding upon which they
  were removed - namely, that they are aliens who entered the U.S. without
  proper admission; the court had no jurisdiction under 8 U.S.C. Sec. 1252
  over petitioners' claim that the IJ deprived them of due process by failing
  to shift the burden of proof once they made a prima facie case of a Fourth
  Amendment violation as they had failed to raise the issue at the
  administrative level.

123546P.pdf   04/19/2013  Union Electric Company  v.  AEGIS Energy Syndicate 1225
  U.S. Court of Appeals Case No:  12-3546
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Per Curiam - Before Bye, Arnold and Benton, Circuit Judges]
  Civil case - Insurance. Endorsement in which the parties agreed to
  submit to the jurisdiction of the courts of the State of Missouri entirely
  supplanted the agreement's mandatory arbitration provision.

Ninth Circuit:


Tenth Circuit:

[Hard to tell from the website which decisions were published and which were unpublished.]

Eleventh Circuit:

In re: Warren Lee Hill, Jr.
Darwin Gilberto Ruiz-Turcios v. US Attorney General

DC Circuit:

Owner-Op Indepen Drivers Assoc v. FMCSA
International Brotherhood of Teamsters v. DOT
USA v. Robert Legg
David De Csepel v. Republic of Hungary

Federal Circuit:


Next update tomorrow afternoon.  Today's and tomorrow's.  Long form.


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.