Thursday, May 30, 2013

Wednesday's Published Opinions

[Plus a whigging of opinions from today, where available.  "Whigging" being the diminutive collective noun that we just made up.]

First Circuit:

Cruz-Vazquez v. Mennonite General Hospital,  -- Release of patient with alarming symptoms, even on advice of patient's treating physician, states a claim under the federal hospital emergency treatment statute.

Second Circuit:

United States v. Rosen -- White Collar - Payments to public officials for assistance "as  opportuities arise" counts as bribery under the statute, not overly vague.  Sufficient evidence.

Hooks v. Forman, Holt, Eliades & Ravin, LLC -- Consumer dispute of debt need not be written under FDCPA.  Prospective-only request denied.

United States v. Stith & Brantley (5/30) -- Sentencing -- Substantial Assistance is the only downward departure that can be considered when calculating amended Guidelines range.

Third Circuit:

Libertarian Party of Virginia v. Charles Judd -- Election Law - Residency requirement for petition witnesses is sufficient injury for standing; Petition collecter's game knee didn't TKO standing; Requirement does not pass strict scrutiny.

US v. Arturo Castellanos -- 4A - Owner of car that was being shipped to him (under alias) had no reasonable expectation of privacy in the car's gas tank.  Dissent: Did so.

US v. Jermar Jones -- Other party's statements in taped prison phone call were not testimonial in nature, and therefore do not trigger the Confrontation Clause; Seating of juror who stated doubts about illegal immigration didn't make it an unfair trial; Sentencing.

Fifth Circuit:

Philip Lively -- Bankruptcy
Ryan Crostley, et al v. Lamar County Texas, et al -- S1983 False arrest/imprisonment claims.

Sixth Circuit:

Maxie Higgason v. Vanderbilt Mortgage and Finance  -- One paragraph per curiam, no law.
USA v. George Dodson, III  -- Guns / mistake of law.
USA v. Christopher Osteen -- Sentence enhancement reasonable, given injury to police.
Rasins Landscape & Associates v. Michigan Department of Transportation -- Whether contractor can sue to prevent govt from contracting further with subcontractors who haven't paid the plaintiff.  Nope.  Redressibility.  (5/30)
USA v. Francis Sharrak -- Tax / sentencing. (5/30)

Seventh Circuit:

CFTC v.   Worth Bullion Group Inc. -- Bullion hawkers are not "financial institutions" under the statute, and therefore cannot redact customer names from subpoenaed records.

USA v.   Victoria Harris -- White colar sentencing - married couple is two people for purposes of tallying victims of fraud.

Eduardo Navejar v.   Akinola Iyiola -- Test for whether prisoner should receive counsel for claims is whether the prisoner is capable of litigating the claim, not an objective assessment of the claim's difficulty.

USA v.   Francis Schmitz -- Sentencing - "Factor creep," scope of fraud.

USA v.   Franchie Farmer -- Crim - Sufficient evidence; When evidence of premature decision by a juror is adduced, the court cannot inquire into how the decision affected deliberations - rather, the court should objectively assess how damaging the premature decision would likely have been.

USA v.  Daniel Delaney  (Concurrence) -- (Posner) - Malice aforethought / heat of passion 

Eighth Circuit (From site):

121332P.pdf  05/29/2013  United States  v.  Ronnie Benson
   U.S. Court of Appeals Case No:   12-1332
   U.S. District Court for the Eastern District of Arkansas - Little Rock   
   [PUBLISHED] [Colloton, Author, with Chief Judge Riley and Smith,
   Circuit Judges]
   Criminal Case - crack cocaine reduction. Because defendant failed to
   present evidence to support a finding that he was accountable for fewer
   than 3,000 kilograms of marijuana equivalent, the district court did not
   err in denying reduction of his sentenced under the amended guidelines. 
   Judge Smith dissents.
122292P.pdf  05/29/2013  Spirit Lake Tribe of Indians  v.  The NCAA
   U.S. Court of Appeals Case No:   12-2292
   U.S. District Court for the District of North Dakota - Fargo   
   [PUBLISHED] [Benton, Author, with Smith and Melloy, Circuit Judges]
   Civil Case - civil rights. Elders of Standing Rock tribe sought to enforce
   settlement agreement between the NCAA and the University of North
   Dakota and enjoin retirement of use of the Fighting Sioux name and sued
   under 42 U.S.C. sec. 1981. District court's grant of summary judgment
   to NCAA is affirmed, as elders committee did not show NCAA failed to
   show discriminatory intent, committee was not entitled to due process as
   a nonmember, and NCAA did not violate the laws of the land or it own
   constitution and bylaws.

Ninth Circuit:

USA V. DAYVEN JOSEPH -- Drug statute does not require that sentences be served consecutively.

JEFFREY BIGGS V. SECRETARY OF CALIFORNIA -- Habeas - whether change to parole procedures triggered Ex Post Facto review.
Tenth Circuit:

United States v. Tingey -- Trusts.

Howard v. Zimmer, Inc. -- Brief reversal after answer on malpractice question certified to state.

Eleventh Circuit:

American Federation of State, County and Municipal Employees Council 79, et al v. Rick Scott -- Suspicion-less drug testing of state employees.

USA v. Alland Philidor -- White collar sentencing.

Next update tomorrow afternoon/evening. Apologies for all the short-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.