Wednesday, May 01, 2013

Short Form -- Wednesday

Quick work today.  As always, entertainment value only.  Don't rely.

First Circuit:  (Souter pitches both games.)

US v. Rodas   Crim -- when the government proved the conspiracy, deft lost Confrontation Clause and prejudicial non-severance claims, as the taped statements in question were statements by conspirators in furtherance of the conspiracy.

US v. Stebbins, Jr.  -- Below-guidelines sentence upheld against deft appeal.  Deft had reason to know that the firearms would be used illicitly.  Motion for credit for previously served time was not made.  Not overall substantively unreasonable.

Second Circuit:

United States v. Richard James and Ronald Mallay  -- Crim. - Admission of lab report didn't violate Confrontation Clause.  Among other things:  trial issues, denial of severance, Confrontation Clause / taped statements.

Southern New England Telephone Company v. Comcast -- Telephone system deregulation -  No preemption, as no Congressional intent and agency indecision was a deliberate attempt to allow the states to experiment.   Merits.  State commission action reversed.    

Caronia v. Philip Morris USA  -- Tobacco liability - UCC and common law claims dismissed.  Question certified to NY top court as to whether the need for ongoing medical monitoring presents a viable separate claim.

Third Circuit:

USA v. Donald Turner -- Co-conspirators' statements aren't hearsay - the conspiracy was proved, as it was an organization devoted to popularizing the author's system of tax preparation, later found to be illicit.  Foreign bank documents had sufficient indicia of trustworthiness. Restitution to IRS upheld.

Fourth Circuit:

Mary DiFederico v. Marriott International, Incorporated   -- Forum non conveniens dismissal reversed for suit seeking damages for terrorist attack in Islamabad.

US v. Jervis Davis -- Restitution order to non-victim reversed, as plea agreement did not consent to it.

Fifth Circuit:

USA v. Melvin Towns, Jr. -- Crim - business record hearsay exception, safety valve sentencing reduction.

Erica P. John Fund, Inc. v. Haliburton Company, et -- Securities - Price-impact fraud on the market evidence should not be considered at certification stage.  

Glory Truong v. Bank of America, N.A., et al -- Rooker-Feldman does not bar claim, as the borrower was challenging not the foreclosure judgment, but the related actions of the banks.  Defts, however are immunie from suit, as state statute exempts federally-insured lenders.

American Family Life Assurance v. Glenda Biles, et  -- No abstention.  Arbitration order does not violate Anti-Injunction Act.  Merits upheld.

Sixth Circuit:

Libertarian Party of Michigan v. Ruth Johnson   -- Election Law - challenge not moot, as capable of repetition, avoiding review.

Bridgeport Music, Inc. v. Smith  --

Eighth Circuit:

(From the court's website)

103137P.pdf  05/01/2013  B & B Hardware  v.  Hargis Industries
   U.S. Court of Appeals Case No:   10-3137
                          and No:   11-1247
   U.S. District Court for the Eastern District of Arkansas - Little Rock   
   [PUBLISHED] [Shepherd, Author, with Loken and Colloton, Circuit Judges]
   Civil case - Trademarks. For the court's prior opinions in the case, see
   B&B Hardware, Inc. v. Hargis Industries, Inc., 569 F.3d 383 (8th Cir.
   2009); and B&B Hardware, Inc. v. Hargis Industries, 252 F.3d 1010 (8th
   Cir. 2001). Assuming that Trademark Trial and Appeal Board decisions
   may be entitled to preclusive effect, such application is not appropriate
   here because the same likelihood-of-confusion issues were not decided by
   the Board as were brought in the action before the district court; the court
   rejects B&B's argument that the Board's factual findings from a
   trademark registration case are entitled to deference by the district court;
   district court did not abuse its discretion by refusing to admit the Board's
   decision into evidence as over the course of the seven-day trial the jury
   was presented with evidence regarding likelihood of confusion as it
   pertained to the factors under which the jury decided the claim of
   trademark infringement and the probative value of the Board's ultimate
   conclusion was minimal; the district court erred in including an award of
   attorneys' fees to Hargis for B&B's prior appeal as that appeal resulted in
   a ruling in B&B's favor and was not groundless or unreasonable; on
   remand, the court should amend its award of fees by deducting the fees
   for the appeal. Judge Colloton, dissenting. 
122913P.pdf  05/01/2013  United States  v.  Nathan Ozmon
   U.S. Court of Appeals Case No:   12-2913
   U.S. District Court for the Southern District of Iowa - Davenport   
   [PUBLISHED] [Murphy, Author, with Beam and Bye, Circuit Judge]
   Criminal case - Sentencing. Government did not breach the cooperation
   agreement when it used defendant's self incriminating statements from
   his proffer interview; sentence imposed was not substantively

Ninth Circuit:

USA V. JEROME MANCUSO  -- Crim/Drugs - Multiple challenges to indictment, Question of whether the property was sufficiently used for illicit purposes,  sentencing challenges.

KEONE LABATAD V. CCA -- S1983 prisoner claim - summary judgment upheld, given lack of indifference by prison staff. (Assault by hostile gang member placed in same cell.)

Federal Circuit:


Long form tomorrow.  Still fighting equipment issues.  New Macbook Pros can be sent to the author, Poste Restante, Gotham.

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.