Friday, May 03, 2013

Rest of Friday

Running short on time - so:

Sixth Circuit :

USA v. Robert Johnson, Jr. 
 Karl Kraus, Jr. v. Clark Taylor 
McCoy Elkhorn Coal Corporation v. Vernie Dotson 


Fidel Munoz-Avila v.   Eric Holder, Jr.
Keith Dookeran v.   Cook County   Dissent

Eighth (From site)

121617P.pdf  05/03/2013  United States  v.  Adekunle Olufemi Adetiloye
   U.S. Court of Appeals Case No:   12-1617
                          and No:   12-1919
   U.S. District Court for the District of North Dakota - Fargo   
   [PUBLISHED] [Bye, Author, with Wollman and Benton, Circuit Judges]
   Criminal case - Sentencing. District court thoroughly considered the
   3553(a) factors at the sentencing hearing, issued a 17-page sentencing
   memorandum and provided a sufficient explanation for its sentencing
   decision; district court did not err in denying defendant a reduction for
   acceptance of responsibility where defendant contested factual statements
   and nearly all applicable enhancements in the PSR; no error in imposing
   an enhancement under Guidelines Sec. 3B1.1(a) for leadership role in the
   offense; no error in imposing an upward enhancement on the ground the
   offense level substantially understated the seriousness of the offense;
   where the government failed to provide documentation with the required
   specificity and reliability to establish the amount of restitution, the court
   should have postponed the restitution proceedings for the gathering and
   presentation of additional evidence; similarly, the district court erred in
   ordering forfeiture in the limited amount set out in its restitution order;
   the restitution and forfeiture orders are vacated and remanded for further
   proceeding regarding the losses the victims sustained and the proceeds
   defendant gained from the scheme.

136011P.pdf  05/03/2013  David Lynd  v.  Charles Ries
   U.S. Court of Appeals Case No:   13-6011
   U.S. Bankruptcy Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Federman, Author, with Nail and Saladino,
   Bankruptcy Judges]
   Bankruptcy Appellate Panel. To the extent Lynd requested the
   bankruptcy court to deviate from the Code and order that his
   restitution claim be paid from some source not authorized by
   the Code, the bankruptcy court was without authority to grant
   such relief, and the court did not err in denying his request.
2013-05-0312-7089CAVCARNOLD PARKS v. SHINSEKI [OPINION]Precedential
2013-05-0312-7003CAVCARNOLD KYHN v. SHINSEKI [OPINION]Precedential
2013-05-0312-1186CITFORD MOTOR COMPANY v. US [OPINION]Precedential
Summaries TK

Fifth Circuit -- S. Washington v. Rick Thaler, Director

Habeas -- Jury Selection

No Supreme Court precedent requiring dismissal of juror absent objection by one of the parties.

S. Washington v. Rick Thaler, Director

Fifth Circuit -- Ray Miller v. Rick Thaler, Director

Habeas / AEDPA --

Denial of attempt to go pro se / Ineffective Assistance.

Ray Miller v. Rick Thaler, Director

Fifth Circuit -- USA v. Ernesto Becerril-Pena

Sentencing/ Immigration -- challenges to supervised release and denial of downward variance.

USA v. Ernesto Becerril-Pena

Fifth Circuit -- Richard Miller v. Raytheon Company (5/2)

Age-Discrimination JMOL

Although each element fell short, considered as a whole, the jury could reasonably have found for the plaintiff.

Discrimination in rehiring suffices for the willfulness requirement of ADEA.

Judgment for pension enhancement needs to be restated as for front pay so as not to be a speculative future harm.

Insufficient evidence for mental anguish 1M.

Single injury claim under federal and state statute is only entitled to one recovery.

Damage cap, fees, prejudgment interest claims addressed.

Richard Miller v. Raytheon Company

Fourth Circuit -- Unspam Technologies, Inc. v. Andrey Chernuk


Conclusory allegations of conspiracy do not justify exercise of personal jurisdiction over foreign banks.

No "arising under" jurisdiction absent proof of minimum contacts.

Unspam Technologies, Inc. v. Andrey Chernuk

Fourth Circuit -- John Coleman v. DEA (5/2)

Extended and inexcusable agency delay is, per se, a constructive exhaustion of agency remedies.


John Coleman v. DEA

Second Circuit -- Reyes v. Holder

Immigration: Agency erred in applying same criteria to inadmissibility as deportability, as Congress might reasonably have attempted to impose a greater burden of compliance on those living under the laws of the country.

Reyes v. Holder

First Circuit -- Senra v. Smithfield, RI

Post-termination arbitration satisfied Due Process, as it addressed cause for firing; Constitutional and statutory violations can be beyond the scope of arbitration.

No Due Process right to the stated grievance procedures.

State statutory claims denied.

Special concurrence/ Concurrence in part: State law quibble.

 Senra v. Smithfield, RI 

First Circuit -- US v. Gomez

Crim --

Sufficient evidence for single conspiracy -- events introduced were therefore not outside the timeline and a variance from the indictment.

Sufficient probable cause for search, as police knew the substance of the transaction in the abandoned building.

No Apprendi violation in sentencing enhancement for quantity of drug above what was charged in the indictment, as the enhancement is found by a preponderance.

No unfair notice for same, as deft had knowledge of the amounts involved.

US v. Gomez 

First Circuit -- Nieves-Romero v. US

As there was no evidence as to when the situation became dangerous, the agency cannot be charged with constructive knowledge of the danger, and summary judgment was appropriate.

No abuse of discretion in granting summary judgment during pendency of extended discovery period.

Nieves-Romero v. US 
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.