Millea v. Metro-North R.R. Co.
Policy requiring specific notification for leave-taking by employee conflicts with FMLA implication that indirect notice is kosher. No error in jury so finding.
No error in jury instruction holding that the leave policy may not be more stringent than FMLA (counsel's argument had been that the timing may not be more stringent, but other aspects might be.)
Reversal for jury instruction which required a "materially adverse employment action" - given Burlington Northern's wide scope of potential adversity in Title VII actions applies to FMLA claims.
Letter of reprimand in the file is sufficient harm under this standard.
Attorneys' fees should be calculated by lodestar, not as percent of recovery.
Recent Precedential Slip Opinions from the U.S. Circuit Courts of Appeals.
Monday, August 08, 2011
Second Circuit -- Millea v. Metro-North R.R. Co.
Labels:
Discrimination,
Fees,
Jury Instructions,
Labor/Employment
Second Circuit -- Smith v. SEC
Smith v. SEC
No abuse of discretion in Magistrate Judge's unfreezing of real estate asset during SEC prosecution, as the value of the property was declining quickly, and given likely success on the merits, a quick sale by the government was the most equitable remedy.
No abuse of discretion in Magistrate Judge's unfreezing of real estate asset during SEC prosecution, as the value of the property was declining quickly, and given likely success on the merits, a quick sale by the government was the most equitable remedy.
Second Circuit -- United States v. Plugh
United States v. Plugh
Held : Post - Berghuis, refusal to sign a waiver of rights form is not an unambiguous invocation of Miranda rights - given the change in the law, gov't can use the statements.
BUT - Court cuts some leeway by reiterating that ultimately, waiver must be knowing and voluntary - as the dude ultimately signed the form, the statements are in.
Friday, August 05, 2011
Federal Circuit -- CLOER V. SEC. OF HEALTH AND HUMAN SERVICES
CLOER V. SEC. OF HEALTH AND HUMAN SERVICES
Consistent with the plain meaning of the statute, we hold that the statute of limitations of the Vaccine Act begins to run on the calendar date of the occurrence of the first medically recognized symptom or manifestation of onset of the injury claimed by the petitioner.
While equitable tolling is held to now be kosher under the Act, this case does not justify.
Consistent with the plain meaning of the statute, we hold that the statute of limitations of the Vaccine Act begins to run on the calendar date of the occurrence of the first medically recognized symptom or manifestation of onset of the injury claimed by the petitioner.
While equitable tolling is held to now be kosher under the Act, this case does not justify.
DC Circuit -- Judicial Watch, Inc. v. Fed. Housing Finance Authority
Judicial Watch, Inc. v. Fed. Housing Finance Authority
FOIA request for Fannie Mae & Freddy Mac political contribution records denied, as the agency does not "control" the records.
(i.e., they haven't looked at them)
FOIA request for Fannie Mae & Freddy Mac political contribution records denied, as the agency does not "control" the records.
(i.e., they haven't looked at them)
DC Circuit -- Bally's Park Place, Inc. v. NLRB
Bally's Park Place, Inc. v. NLRB
Employer who attempts to rebut unfair dismissal presumption by arguing a "zero tolerance" policy of abuse on something (eg family leave time) must have a written policy.
Employer who attempts to rebut unfair dismissal presumption by arguing a "zero tolerance" policy of abuse on something (eg family leave time) must have a written policy.
DC Circuit -- Spectrum Health-Kent Community v. NLRB
Spectrum Health-Kent Community v. NLRB
Where the cover of the CBA has one effective date and the text states another, look to parol evidence to establish intent.
10(e) bars challenge to factual basis of Board's ruling, as it was not raised before the Board.
Where the cover of the CBA has one effective date and the text states another, look to parol evidence to establish intent.
10(e) bars challenge to factual basis of Board's ruling, as it was not raised before the Board.
DC Circuit -- Janet Katz v. SEC
Janet Katz v. SEC
Where charging memorandum sufficiently references facts, deft is on notice to defend against any predicate charges.
Substantial evidence backs SEC findings.
Where charging memorandum sufficiently references facts, deft is on notice to defend against any predicate charges.
Substantial evidence backs SEC findings.
DC Circuit -- Melvin Jones v. Michael Astrue
Melvin Jones v. Michael Astrue
Error in rejecting conclusions of treating physician.
Letter implicating credibility of physiscian = grounds for remand to agency.
Error in rejecting conclusions of treating physician.
Letter implicating credibility of physiscian = grounds for remand to agency.
Eleventh Circuit -- USA vs Larry P. Langford
USA vs Larry P. Langford
Political corruption -
Sufficient evidence for honest services fraud & using mails in furtherance of fraud.
No prejudice in admission of tax returns with extraordinary (legal) gambling winnings.
Banking records not hearsay.
No prejudice from hearsay testimony on denial of loan.
Giving clothes to charity = inadmissible character evidence.
No error on several small evidence calls.
No error in denying jury instruction requiring quid pro quo for bribery conviction.
No error in denying change of venue.
Political corruption -
Sufficient evidence for honest services fraud & using mails in furtherance of fraud.
No prejudice in admission of tax returns with extraordinary (legal) gambling winnings.
Banking records not hearsay.
No prejudice from hearsay testimony on denial of loan.
Giving clothes to charity = inadmissible character evidence.
No error on several small evidence calls.
No error in denying jury instruction requiring quid pro quo for bribery conviction.
No error in denying change of venue.
Tenth Circuit -- United States v. Prince
United States v. Prince
Striking jurors for views on marihuana legalization is kosher.
For conviction on giving false statements to a firearms dealers, no mens rea requirement that deft know that the statements will be written down and placed in files.
Sufficient is the evidence unto the conviction.
Striking jurors for views on marihuana legalization is kosher.
For conviction on giving false statements to a firearms dealers, no mens rea requirement that deft know that the statements will be written down and placed in files.
Sufficient is the evidence unto the conviction.
Tenth Circuit -- Healthtrio, Inc. v. Centennial River Corp
Healthtrio, Inc. v. Centennial River Corp
Bankruptcy - Order of Relief sufficiently final for appeal.
Where Bankruptcy judge transfers case but then issues an untimely order, that order is unreviewable by the second jurisdiction. Remedy is to ask the second trail-level court to reevaluate the transfer order.
Bankruptcy - Order of Relief sufficiently final for appeal.
Where Bankruptcy judge transfers case but then issues an untimely order, that order is unreviewable by the second jurisdiction. Remedy is to ask the second trail-level court to reevaluate the transfer order.
Ninth Circuit -- K2 AMERICA CORPORATION V. ROLAND OIL & GAS. LLC
K2 AMERICA CORPORATION V. ROLAND OIL & GAS. LLC
"Indian Country" statute insufficient for federal jurisdiction where two companies are fighting state law claims involving lands held in trust.
"Indian Country" statute insufficient for federal jurisdiction where two companies are fighting state law claims involving lands held in trust.
Ninth Circuit -- S. GINSBERG V. NORTHWEST, INC.
S. GINSBERG V. NORTHWEST, INC.
The Airline Deregulation Act does not preempt a contract claim based on doctrine of good faith and fair dealing, as the latter does not refer to prices, routes & services.
Circuit split signalled in special concurrence.
The Airline Deregulation Act does not preempt a contract claim based on doctrine of good faith and fair dealing, as the latter does not refer to prices, routes & services.
Circuit split signalled in special concurrence.
Ninth Circuit -- USA V. STINSON
USA V. STINSON
VICAR is a continuing offense for purposes of jurisdiction.
No error in refusing to sever where court told jury that it really, really had to try to keep things separate.
No error in proceeding with a death-penalty qualified jury where proscs drop the capital charge.
Batson challenges TKO'd for court discretion & no harm no foul.
No Brady violation in sealed interviews of other prisoners.
No error in denying outrageous gov't conduct motions for threatening witnesses with death penalty and solitary confinement.
Older habeus order not relevant.
Vouching testimony was ultimately harmless.
Prosecutor misconduct in posing hypothetical statements not in evidence was harmless.
No error in denying curative jury instruction.
No tampering where judge tells jury that the blokes what approached them were not parties to the case.
Readbacks kosher.
Special verdict language which did not address burden of proof on the issue was not in error.
VICAR is a continuing offense for purposes of jurisdiction.
No error in refusing to sever where court told jury that it really, really had to try to keep things separate.
No error in proceeding with a death-penalty qualified jury where proscs drop the capital charge.
Batson challenges TKO'd for court discretion & no harm no foul.
No Brady violation in sealed interviews of other prisoners.
No error in denying outrageous gov't conduct motions for threatening witnesses with death penalty and solitary confinement.
Older habeus order not relevant.
Vouching testimony was ultimately harmless.
Prosecutor misconduct in posing hypothetical statements not in evidence was harmless.
No error in denying curative jury instruction.
No tampering where judge tells jury that the blokes what approached them were not parties to the case.
Readbacks kosher.
Special verdict language which did not address burden of proof on the issue was not in error.
Eighth Circuit -- United States v. Mario Smith
United States v. Mario Smith
Advancing with guns drawn, chase & fight with deft = not an arrest, but a Terry stop.
Leaving the car in the drive-through at Taco Bell = abandonment.
Advancing with guns drawn, chase & fight with deft = not an arrest, but a Terry stop.
Leaving the car in the drive-through at Taco Bell = abandonment.
Eighth Circuit -- Carlos Fernando Vasquez v. Stephanie Jo Colores
Carlos Fernando Vasquez v. Stephanie Jo Colores
Given goal of expediency, no error in denying continuance in a Hague Convention on Child Abduction proceeding.
No error in excluding evidence where proffer indicated that it would be cumulative.
Given goal of expediency, no error in denying continuance in a Hague Convention on Child Abduction proceeding.
No error in excluding evidence where proffer indicated that it would be cumulative.
Eighth Circuit -- United States v. Michael Wesley
United States v. Michael Wesley
No abuse of discretion in admitting a gun that might have been used in the robbery.
Introduction of unexplained wealth was error, as it likely came from a crime not in the indictment, but no error given weight of evidence.
No procedural or substantive errors in sentence.
No abuse of discretion in admitting a gun that might have been used in the robbery.
Introduction of unexplained wealth was error, as it likely came from a crime not in the indictment, but no error given weight of evidence.
No procedural or substantive errors in sentence.
Eighth Circuit -- Virgil Moore v. United States
Virgil Moore v. United States
Admission of form 2571 does not prejudicially determine that deft is a person of responsibility.
Signing form that indicates assessment suffices for notice of collection. (Maybe. TMB isn't tax-savvy.)
Admission of form 2571 does not prejudicially determine that deft is a person of responsibility.
Signing form that indicates assessment suffices for notice of collection. (Maybe. TMB isn't tax-savvy.)
Seventh Circuit -- Board of Regents University of Wisconsin v. Phoenix Software
Board of Regents University of Wisconsin v. Phoenix Software
Findings in the TTAB holding that there was a likelihood of confusion of trademarks means that SJ at District Court is inappropriate.
State waives sovereign immunity to compulsory counterclaims by beginning Article III action to challenge TTAB finding.
Extensive primer on sovereign immunity / 11A.
Findings in the TTAB holding that there was a likelihood of confusion of trademarks means that SJ at District Court is inappropriate.
State waives sovereign immunity to compulsory counterclaims by beginning Article III action to challenge TTAB finding.
Extensive primer on sovereign immunity / 11A.
Seventh Circuit -- USA v. USA v. Nora Penaloza
USA v. Nora Penaloza
No abuse of discretion in admitting extensive background evidence of investigation, despite court's prior denial of gov't's allegations of conspiracy in a Santiago proffer.
Post-transaction statements by deft in as background since not introduced for the truth of the matter asserted.
No constructive amendment of the indictment during trial to establish a conspiracy charge.
Witness' being there when deft confessed is sufficient foundation for their testimony.
No abuse of discretion in admitting extensive background evidence of investigation, despite court's prior denial of gov't's allegations of conspiracy in a Santiago proffer.
Post-transaction statements by deft in as background since not introduced for the truth of the matter asserted.
No constructive amendment of the indictment during trial to establish a conspiracy charge.
Witness' being there when deft confessed is sufficient foundation for their testimony.
Seventh Circuit -- Premium Plus Partner v. Goldman Sachs
Premium Plus Partner v. Goldman Sachs
Putative class composed of those who went short and got burned by a Goldman position taken due to embargoed information -
The SOL runs from when a reasonable person would have discerned the fraud, not when scienter of the fraudster is established.
Judge's order granting Rule 68 motion disqualifies plaintiff as representative of putative class, as the remedy has been found.
Remand for explanation as to why simple interest from date of filing was awarded as opposed to compound from date of violation.
Putative class composed of those who went short and got burned by a Goldman position taken due to embargoed information -
The SOL runs from when a reasonable person would have discerned the fraud, not when scienter of the fraudster is established.
Judge's order granting Rule 68 motion disqualifies plaintiff as representative of putative class, as the remedy has been found.
Remand for explanation as to why simple interest from date of filing was awarded as opposed to compound from date of violation.
Seventh Circuit -- Andrea Fields v. Judy Smith
Andrea Fields v. Judy Smith
Act barring the use of government funds for medical treatments for transsexual prisoners violates 8th Amendment CUP, both facially and as applied. District Court injunction upheld.
Act barring the use of government funds for medical treatments for transsexual prisoners violates 8th Amendment CUP, both facially and as applied. District Court injunction upheld.
Seventh Circuit -- Jayne Mathews-Sheets v. Michael Astrue
Jayne Mathews-Sheets v. Michael Astrue
COLA raises to fee levels under the Equal Access to Justice Act are dependent on the availability of labor - i.e., counsel must demonstrate that specialists in the field are not available at sub-COLA levels of remuneration.
COLA raises to fee levels under the Equal Access to Justice Act are dependent on the availability of labor - i.e., counsel must demonstrate that specialists in the field are not available at sub-COLA levels of remuneration.
Seventh Circuit -- NLRB v. Irving Ready-Mix, In
NLRB v. Irving Ready-Mix, In
Ready-mix concrete is not a construction business, and therefore the employer is a 9(a) employer, not an 8(f) employer. District Court injunction upheld.
Ready-mix concrete is not a construction business, and therefore the employer is a 9(a) employer, not an 8(f) employer. District Court injunction upheld.
Sixth Circuit -- William Gaspers v. Ohio Department of Youth Services
William Gaspers v. Ohio Department of Youth Services
No qualified immunity for officials facing S1983 suit for retaliation on the basis of marriage.
[Quite different from marriage as the basis of retaliation. ]
No qualified immunity for officials facing S1983 suit for retaliation on the basis of marriage.
[Quite different from marriage as the basis of retaliation. ]
Sixth Circuit -- Terrance' Akins v. Joe Easterling
Terrance' Akins v. Joe Easterling
Batson challenge via habeus to peremptory strike of one of two African-Americans in the pool denied. (The other potential juror was out for cause.)
No error in court allowing deft to go pro se where young deft (17 at time of offense) was urged by mentally ill family member to represent self, then decided to retain counsel, and then decided to punt counsel immediately prior to trial.
Batson challenge via habeus to peremptory strike of one of two African-Americans in the pool denied. (The other potential juror was out for cause.)
No error in court allowing deft to go pro se where young deft (17 at time of offense) was urged by mentally ill family member to represent self, then decided to retain counsel, and then decided to punt counsel immediately prior to trial.
Labels:
Crim,
Ineffective Assistance,
Prisoner Litigation
Sixth Circuit -- USA v. Roger Trent
USA v. Roger Trent
Sex offender registration - where SORNA was passed but not yet implemented by the state, and an AG's regulation applying the statute to these interstitial cases had not yet gone into effect, there was no duty to register.
Sex offender registration - where SORNA was passed but not yet implemented by the state, and an AG's regulation applying the statute to these interstitial cases had not yet gone into effect, there was no duty to register.
Fifth Circuit -- USA, ex rel, et al v. McKesson Corporation, et al
USA, ex rel, et al v. McKesson Corporation, et al
Under the False Claims Act, there is a jurisdictional bar where the suit is based on publicly available information (presumably to prevent idle barristry). Here, general notions of medical fraud which were publicly aired combined with the vague pleadings against defts TKO's the suit.
Under the False Claims Act, there is a jurisdictional bar where the suit is based on publicly available information (presumably to prevent idle barristry). Here, general notions of medical fraud which were publicly aired combined with the vague pleadings against defts TKO's the suit.
Fifth Circuit -- USA v. Alejandro Rios-Cortes
USA v. Alejandro Rios-Cortes
Where sentence is for two years but probated for five years and the deft violates the probation and gets 180 days, the conviction still gets the sentencing bump for aggravated felony, as the original term of two years is most relevant.
Where sentence is for two years but probated for five years and the deft violates the probation and gets 180 days, the conviction still gets the sentencing bump for aggravated felony, as the original term of two years is most relevant.
Fifth Circuit -- Windsor Place v. HHS
Fourth Circuit -- US v. Calvin Bonner
US v. Calvin Bonner
Insufficient evidence to convict, as there were no contemporaneous ID's and a weak foundation for the scientific evidence (DNA on a baseball cap).
Insufficient evidence to convict, as there were no contemporaneous ID's and a weak foundation for the scientific evidence (DNA on a baseball cap).
Thrd Circuit -- Yolanda Adams v. Ford Mtr Co
Yolanda Adams v. Ford Mtr Co
Counsel called a juror after a trial to discuss the verdict, and in the course of the phone call, mis-stated the law. Judge referred matter to local bar association by unsealed order.
Held:
Judge's factual determination that the rules had been violated is sufficient for standing to challenge.
Abuse of discretion in court's factual finding, as the conduct was not harassing in nature.
Violation of procedural DP, as the finding was equivalent to sanctions.
Violation of DP in not informing counsel of possibility of sanctions prior to the hearing.
Counsel called a juror after a trial to discuss the verdict, and in the course of the phone call, mis-stated the law. Judge referred matter to local bar association by unsealed order.
Held:
Judge's factual determination that the rules had been violated is sufficient for standing to challenge.
Abuse of discretion in court's factual finding, as the conduct was not harassing in nature.
Violation of procedural DP, as the finding was equivalent to sanctions.
Violation of DP in not informing counsel of possibility of sanctions prior to the hearing.
Third Circuit -- Pittsburgh League of Young Vot v. Port Auth Alghny
Pittsburgh League of Young Vot v. Port Auth Alghny
Whether agency's refusal to place certain non-commercial advertisements in its buses informing felons of their rights was an unconstitutional restriction on speech.
No decision on whether Bose or clear error is the standard of review.
No decision on whether the space is a public or nonpublic (b/c no political ads allowed) forum.
Comparator test establishes viewpoint discrimination - other noncommercial ads were accepted.
Whether agency's refusal to place certain non-commercial advertisements in its buses informing felons of their rights was an unconstitutional restriction on speech.
No decision on whether Bose or clear error is the standard of review.
No decision on whether the space is a public or nonpublic (b/c no political ads allowed) forum.
Comparator test establishes viewpoint discrimination - other noncommercial ads were accepted.
Third Circuit -- Jane Doe v. Indian River School District
Jane Doe v. Indian River School District
Given the potential for coercion and the purpose and character of the board, invocations at school board meetings are assessed under Lee's prayer-in-schools framework as opposed to Marsh's legislative-exception framework.
Under the Lemon test - policy TKO'd as its primary purpose is to advance religion and it fosters excessive entanglement. (Court declines to decide whether solemnification is a viable secular purpose).
Endorsement test held to be identical to the second prong of the Lemon test.
Summary judgment to appellants.
Given the potential for coercion and the purpose and character of the board, invocations at school board meetings are assessed under Lee's prayer-in-schools framework as opposed to Marsh's legislative-exception framework.
Under the Lemon test - policy TKO'd as its primary purpose is to advance religion and it fosters excessive entanglement. (Court declines to decide whether solemnification is a viable secular purpose).
Endorsement test held to be identical to the second prong of the Lemon test.
Summary judgment to appellants.
Second Circuit -- Faber v. Metropolitan Life Insurance Company
Faber v. Metropolitan Life Insurance Company
Whether ERISA awards in the form of accounts with the plan administrator violate the administrator's obligation to act solely in the interest of the beneficiary, given the interest earned by the administrator.
Plaintiff meets looser ERISA statutory standing requirements (no personal injury).
Skidmore deference to DOL interpretation that the assets are no longer plan assets.
The administrator's duty is discharged by the creation of the account.
Whether ERISA awards in the form of accounts with the plan administrator violate the administrator's obligation to act solely in the interest of the beneficiary, given the interest earned by the administrator.
Plaintiff meets looser ERISA statutory standing requirements (no personal injury).
Skidmore deference to DOL interpretation that the assets are no longer plan assets.
The administrator's duty is discharged by the creation of the account.
Second Circuit -- Casey v. Merck & Co., Inc.
Casey v. Merck & Co., Inc.
State law determines whether a putative class action in another jurisdiction (state or federal) tolls a SOL on a state law claim. Circuit split implied ("the majority of our sister circuits").
Question certified to the Va. Supreme Court.
State law determines whether a putative class action in another jurisdiction (state or federal) tolls a SOL on a state law claim. Circuit split implied ("the majority of our sister circuits").
Question certified to the Va. Supreme Court.
Second Circuit -- Mullins v. City of NY
Auer deference to the Secretary of Labor's determination that NYPD police sergeants are not primarily concerned with management, and are therefore entitled to overtime pay.
Second Circuit -- Joseph v. HDMJ
Joseph v. HDMJ
Question certified to the NY Court of Appeals on whether a state court dismissal for timeliness precludes by res judicata subsequent suit in a jurisdiction with a longer statute of limitations.
Question certified to the NY Court of Appeals on whether a state court dismissal for timeliness precludes by res judicata subsequent suit in a jurisdiction with a longer statute of limitations.
Thursday, August 04, 2011
Ninth Circuit -- CIR V. ESTATE OF ANNE Y. PETTER
CIR V. ESTATE OF ANNE Y. PETTER
Where the amount of stock donated to charitable institution is tied to the valuation of the stock, the valuation is not a condition precedent to the transfer. (The stock passes when it passes.)
Ergo, the charities can deduct the additional shares.
Where the amount of stock donated to charitable institution is tied to the valuation of the stock, the valuation is not a condition precedent to the transfer. (The stock passes when it passes.)
Ergo, the charities can deduct the additional shares.
Ninth Circuit -- USA V. ROGELIO ESPINOZA-BAZA
USA V. ROGELIO ESPINOZA-BAZA
S1981 Retaliation claim governed by 4 year federal SOL, not state.
IIED governed by state SOL.
No equitable estoppel on EEOC SOL where other party doesn't introduce a piece of evidence that is also in the plaintiff's possession.
No equitable tolling while pursuing an appeal in another circuit, where the present claim could be filed during pendency.
No equitable tolling from mental incompetence where plaintiff is actively involved in litigation in other circuits.
No error in dismissal of abuse of process & fraudulent concealment.
S1981 Retaliation claim governed by 4 year federal SOL, not state.
IIED governed by state SOL.
No equitable estoppel on EEOC SOL where other party doesn't introduce a piece of evidence that is also in the plaintiff's possession.
No equitable tolling while pursuing an appeal in another circuit, where the present claim could be filed during pendency.
No equitable tolling from mental incompetence where plaintiff is actively involved in litigation in other circuits.
No error in dismissal of abuse of process & fraudulent concealment.
Ninth Circuit -- USA V. ROGELIO ESPINOZA-BAZA
USA V. ROGELIO ESPINOZA-BAZA
No error in not allowing testimony as to citizenship of grandfather - deft was mounting a derivative citizenship defense - while relevant, potentially confusing and insufficiently probative.
A mere scintilla of evidence in the record is insufficient to justify a jury instruction on the theory.
Multiple illegal entries properly grouped and given the multiple offenses sentencing bump.
No substantive/procedural error in sentencing.
No error in not allowing testimony as to citizenship of grandfather - deft was mounting a derivative citizenship defense - while relevant, potentially confusing and insufficiently probative.
A mere scintilla of evidence in the record is insufficient to justify a jury instruction on the theory.
Multiple illegal entries properly grouped and given the multiple offenses sentencing bump.
No substantive/procedural error in sentencing.
Labels:
Crim,
FRE,
Immigration,
Jury Instructions,
Sentencing
Ninth Circuit -- USA V. BINGHAM
USA V. BINGHAM
Sufficient evidence to convict on VICAR murder after gang member said there was a "war" on with another gang.
RICO conviction upheld, despite the fact that the gang had reorganized during the term of the offense : The particular structure under which the AB operated at the time of the various predicate acts is not determinative of the relatedness of those acts.
Stabbing under the arm is attempted homicide, not mere assault.
Second pair of bloody trousers means no DP violation in destruction of bloody trousers, no evidence police knew they were potentially exculpatory.
Cannot assume that prosecutor knew that prior inconsistent statement was true.
Pinkerton culpability can establish RICO predicates.
No burden on gov't to present exculpatory evidence to grand jury.
No error in declining to admit an indictment from another prosecution where the defts are not named in the second indictment.
Sufficient evidence to convict on VICAR murder after gang member said there was a "war" on with another gang.
RICO conviction upheld, despite the fact that the gang had reorganized during the term of the offense : The particular structure under which the AB operated at the time of the various predicate acts is not determinative of the relatedness of those acts.
Stabbing under the arm is attempted homicide, not mere assault.
Second pair of bloody trousers means no DP violation in destruction of bloody trousers, no evidence police knew they were potentially exculpatory.
Cannot assume that prosecutor knew that prior inconsistent statement was true.
Pinkerton culpability can establish RICO predicates.
No burden on gov't to present exculpatory evidence to grand jury.
No error in declining to admit an indictment from another prosecution where the defts are not named in the second indictment.
Eighth Circuit -- Steve McCoy v. Michael J. Astrue
Steve McCoy v. Michael J. Astrue
No error in ALJ determination that claimant's symptoms did not match disease profile, as substantial evidence supported ALJ finding.
While an ALJ does have a duty to develop the record, this duty is not never-ending and an ALJ is not required to disprove every possible impairment.
ALJ's consideration of non-exertional limitations not under the grids was kosher.
Balance of ALJ's findings justified by substantial evidence.
No error in ALJ determination that claimant's symptoms did not match disease profile, as substantial evidence supported ALJ finding.
While an ALJ does have a duty to develop the record, this duty is not never-ending and an ALJ is not required to disprove every possible impairment.
ALJ's consideration of non-exertional limitations not under the grids was kosher.
Balance of ALJ's findings justified by substantial evidence.
Eighth Circuit -- United States v. Hillard Garrett, Jr.
United States v. Hillard Garrett, Jr.
Jury could reasonably find that deft chucked the gun out of the car window when fleeing from police.
No error in denying mistrial after mentions of drug investigations by witnesses.
Two firearms offenses fifteen months apart were correctly joined.
No improper joinder, as no evidence of jury taint.
Jury could reasonably find that deft chucked the gun out of the car window when fleeing from police.
No error in denying mistrial after mentions of drug investigations by witnesses.
Two firearms offenses fifteen months apart were correctly joined.
No improper joinder, as no evidence of jury taint.
Eighth Circuit -- United States v. James Scudder
United States v. James Scudder
Indiana child molestation statute is categorically a violent crime under the ACCA residual clause.
Indiana child molestation statute is categorically a violent crime under the ACCA residual clause.
Seventh Circuit -- Dynegy Marketing and v. Multiut Cor
Dynegy Marketing v. Multiut Corp.
Merely naming an amount for counterclaim damages insufficient after several motions to compel - underlying rationale must be shown.
Without specific agreement, vague, general understanding of MFN pricing is not a contract.
"We'll work on it" does not create a contract for lock-in pricing.
Not invoicing interest payments does not create a contract that interest will not be paid.
Alleged manipulation of gas price indices does not vitiate damages claim.
Signatories personally liable as third-party guarantors despite partial noncompliance of coparties.
Where one party later does a deal with a competitor of a company with which it had a confidentiality agreement, breach of the CA may be too speculative for even the inevitable disclosure doctrine to apply.
No proof of ultimate harm in Robinson-Patman Act challenge.
Merely naming an amount for counterclaim damages insufficient after several motions to compel - underlying rationale must be shown.
Without specific agreement, vague, general understanding of MFN pricing is not a contract.
"We'll work on it" does not create a contract for lock-in pricing.
Not invoicing interest payments does not create a contract that interest will not be paid.
Alleged manipulation of gas price indices does not vitiate damages claim.
Signatories personally liable as third-party guarantors despite partial noncompliance of coparties.
Where one party later does a deal with a competitor of a company with which it had a confidentiality agreement, breach of the CA may be too speculative for even the inevitable disclosure doctrine to apply.
No proof of ultimate harm in Robinson-Patman Act challenge.
Seventh Circuit -- Yu Li v. USA
Yu Li v. USA
No ineffective assistance where counsel proposes an instruction without specific intent, where the proposed instruction was in use in another circuit.
No ineffective assistance in not objecting under confrontation clause to videotaped depositions / read transcripts of depositions.
No ineffective assistance because of language barrier where deft engaged in extended (yes/no) colloquy with court & ran a restaurant for many years in Wisconsin.
No ineffective assistance where counsel proposes an instruction without specific intent, where the proposed instruction was in use in another circuit.
No ineffective assistance in not objecting under confrontation clause to videotaped depositions / read transcripts of depositions.
No ineffective assistance because of language barrier where deft engaged in extended (yes/no) colloquy with court & ran a restaurant for many years in Wisconsin.
Sixth Circuit -- USA v. Aaron Harvey
USA v. Aaron Harvey
Trial court can reasonably find that deft's claim that he intended at time of purchase to keep the guns for himself was bogus.
Deft crossing witness on inconsistencies in initial interviews opened the door to admission of deft's recorded statement.
No error in court using motive/intent instruction where it doesn't seem to be relevant.
No error in judge reading extended sections of transcript to jury in response to questions.
No error in sentencing bump, as jury could reasonably find that deft knew that the guns would be used in drug crimes.
Trial court can reasonably find that deft's claim that he intended at time of purchase to keep the guns for himself was bogus.
Deft crossing witness on inconsistencies in initial interviews opened the door to admission of deft's recorded statement.
No error in court using motive/intent instruction where it doesn't seem to be relevant.
No error in judge reading extended sections of transcript to jury in response to questions.
No error in sentencing bump, as jury could reasonably find that deft knew that the guns would be used in drug crimes.
Labels:
Crim,
FRE,
Jury Instructions,
Sentencing,
Sufficient Evidence
Sixth Circuit -- Center for Bio-Ethical Reform v. Janet Napolitano
Center for Bio-Ethical Reform v. Janet Napolitano
Pro-life organization plaintiffs have not plausibly alleged the existence of a DOJ Right Wing Extremists policy.
No 1A retaliation claim, as nothing specifically pleaded that would prevent a person of ordinary firmness from helping out with that whole fetus-pictures-on-eighteen-wheelers thing.
These vague and conclusory allegations of nefarious intent and motivation by officials at the highest levels of the federal government are not well-pleaded, and are therefore insufficient to “plausibly suggest an entitlement to relief.”
No equal protection claims, as no plausible pleading of disparate treatment.
Pro-life organization plaintiffs have not plausibly alleged the existence of a DOJ Right Wing Extremists policy.
No 1A retaliation claim, as nothing specifically pleaded that would prevent a person of ordinary firmness from helping out with that whole fetus-pictures-on-eighteen-wheelers thing.
These vague and conclusory allegations of nefarious intent and motivation by officials at the highest levels of the federal government are not well-pleaded, and are therefore insufficient to “plausibly suggest an entitlement to relief.”
No equal protection claims, as no plausible pleading of disparate treatment.
Sixth Circuit -- USA v. Tyrone McMurray
USA v. Tyrone McMurray
Predicate offense priors do not need to be established beyond a reasonable doubt in present trial.
Tennessee recklessly causing serious body injury statute not categorically a violent crme for ACCA.
Shepard papers do not establish that deft committed violent crime - despite prosecution colloquy at time of plea, deft's 'best interest' (Alford) plea & silence with respect to prosecution's colloquy means that the offense gets narrowest, saving interpretation.
Predicate offense priors do not need to be established beyond a reasonable doubt in present trial.
Tennessee recklessly causing serious body injury statute not categorically a violent crme for ACCA.
Shepard papers do not establish that deft committed violent crime - despite prosecution colloquy at time of plea, deft's 'best interest' (Alford) plea & silence with respect to prosecution's colloquy means that the offense gets narrowest, saving interpretation.
Fifth Circuit -- Robert Rabe v. Rick Thaler, Director
,Robert Rabe v. Rick Thaler, Director
As habeus review is limited to facts in the state court record, counsel's declaration (accepted by the trial court) that he tried to locate the alibi witness TKO's the ineffective assistance claim.
As habeus review is limited to facts in the state court record, counsel's declaration (accepted by the trial court) that he tried to locate the alibi witness TKO's the ineffective assistance claim.
Third Circuit -- Pernod Ricard USA LLC v. Bacardi USA Inc
Pernod Ricard USA LLC v. Bacardi USA Inc
Where the bottle of rum clearly states that it was made in Puerto Rico, no Lanham Act violation (misleading as to origins) in the label "Havanna Club."
(Coincidentally, plaintiff's are in same multiternational agglomeration that formerly held the TM on the term.)
Where the bottle of rum clearly states that it was made in Puerto Rico, no Lanham Act violation (misleading as to origins) in the label "Havanna Club."
(Coincidentally, plaintiff's are in same multiternational agglomeration that formerly held the TM on the term.)
Third Circuit -- Funk v. CIGNA Group Ins
Funk v. CIGNA Group Ins
Insurance denial was congruent with plan restrictions - employee had to be capable of earning 60% of base wages, insurance co. found him capable of returning to old job.
Where the Plan functions as a third-party administrator, there is no de facto substantial conflict of interest.
Plan language requiring repaymment of SSA proceeds sufficient to place an equitable lien against SSA income.
Insurance denial was congruent with plan restrictions - employee had to be capable of earning 60% of base wages, insurance co. found him capable of returning to old job.
Where the Plan functions as a third-party administrator, there is no de facto substantial conflict of interest.
Plan language requiring repaymment of SSA proceeds sufficient to place an equitable lien against SSA income.
First Circuit -- Igartua v. US
Igartua v. US
En banc rehearing denied.
ICCPR is not self-executing, and therefore does not bind US Courts.
Concurrence: After MedellÃn and Abbott, we cannot ignore the consistent and strongly held views of the Executive and the Senate that the ICCPR is not self-executing.
Dissent (though not called a dissent in the opionion) - Significant constitutional issues raised, quotes from Koz & Easterbrook on threshold of risk to liberties for en banc, Medellin didn't examine the issue closely enough;
Dissent - Constitutional and treaty questions justify en banc hearing.
Dissent - Enfranchisement of millions warrants hearing.
En banc rehearing denied.
ICCPR is not self-executing, and therefore does not bind US Courts.
Concurrence: After MedellÃn and Abbott, we cannot ignore the consistent and strongly held views of the Executive and the Senate that the ICCPR is not self-executing.
Dissent (though not called a dissent in the opionion) - Significant constitutional issues raised, quotes from Koz & Easterbrook on threshold of risk to liberties for en banc, Medellin didn't examine the issue closely enough;
Dissent - Constitutional and treaty questions justify en banc hearing.
Dissent - Enfranchisement of millions warrants hearing.
Second Circuit -- U.S.A. v. Jackson
U.S.A. v. Jackson
Sufficient evidence that deft told someone to kill someone else, despite killer testifying that there was no explicit instruction.
No error in barring defts prior taped statements, as they did not illuminate portions of tape introduced by govt as adverse party statements..
Where jury convicts on a lesser charge but can't reach agreement on a greater charge, a lesser included offense within the greater charge may be tried later without incurring Double Jeopardy - govt gets 'one complete opportunity.'
A possibly erroneous sentence which runs concurrently with a longer sentence does not sufficiently imperil substantial rights of deft.
Sufficient evidence that deft told someone to kill someone else, despite killer testifying that there was no explicit instruction.
No error in barring defts prior taped statements, as they did not illuminate portions of tape introduced by govt as adverse party statements..
Where jury convicts on a lesser charge but can't reach agreement on a greater charge, a lesser included offense within the greater charge may be tried later without incurring Double Jeopardy - govt gets 'one complete opportunity.'
A possibly erroneous sentence which runs concurrently with a longer sentence does not sufficiently imperil substantial rights of deft.
Labels:
Crim,
Double Jeopardy,
FRE,
Sentencing,
Sufficient Evidence
Wednesday, August 03, 2011
Published Circuit Opinons - August 3
Third Circuit:
Challenge to health care bill TKO'd for standing - no injury in fact, no imminent concrete injury.
Under New Jersey law, it is possible to seek contractual reformation on the basis of mutual mistake against a party who was not involved in the contract agreement - rationale is discerning intent of contracting parties. Strong suggestion that court must balance equities of intervention.
INA post-departure ban on appeals conflicts with clear text of Act permitting appeals - Congress has spoken on the issue, and inquiry is at an end. Circuit split on reasoning, not outcomes.
District Court erred in setting aside conviction for transporting firearms in the course of dealing firearms without a license - substantial proof of ongoing sales for profit, signed forms evince knowlege of the law; Running guns inherently has a mens rea component of knowing that the guns will eventually be used for Bad Things; The rule of consistency for conspiracy prosecutions is no longer viable - jury has the prerogative to convict; No error in not instructing jury on affirmative defense of recognition of other states' licensing schemes.
Fifth Circuit:
No error in sentencing court not grouping multiple calls to same corporation together for Guidelines purposes - the primary target in each instance was different.
Sixth Circuit:gui
(Crim - homicide in a national forest)
Deft was malingering, not genuinely incompetent;
New penalty phase to allow jurors to consider possible mitigaiton from the fact that the state in which the park is located has abolished the death penalty;
Jury must find beyond a reasonable doubt that aggrivating factors outweigh mitigating factors - circuit split flagged; No error in lack of aggravating factors in indictment (added later);
Given totality of disruptive behavior, no rerror in court not allowing deft to go pro se;
When deft punched lawyer during trial, no error in court denying motion to withdraw, as the breakdown in communication was less than total;
No error in denying mistrial after punch, as it would allow deft to unfairly profit from his actions;
No error in excluding deft from in camera conferences - DP b/c he got better process & no error from violation of Rule 43 (deft must be present at trial) - no harm no foul.
No Brady violation, in witholding report that proc. witness had violated ethical rules by making public comments, given overwhelming evidence of guilt.
No 5A/6A violation in judge shifting juror to "alternate" before dismissing her, as she had been dozing during trial.
No Confrontation Clause violation in allowiing videotaped testimony from ill witnesses where deft could cross at deposition.
Examination between guilt phase an penalty phase and (rebuttal?) testimony in penalty phase not untimely.
No error in gov't not disclusing unadjudicated ethics complaint against gov't doc.
Dictum that unequal seating of pro-death penalty jurors & anti-death penalty jurors can be problemeatic.
Federal death penalty Act not facially unconstitutional in refusing to use the Federal Rules of Evidence.
No error in consideration of unadjudicated acts at penalty phase.
No error in prosecutor asking jury to 'balance the ledger book' in closing.
No error in refusing a Remmer hearing where jury member tells newspaper "I knew he was off the wall before the trial."
No error in declining new trial or not finding Brady violation where witness was subjected to competency evaluaition in coeval state action.
No error in refusing to instruct jury on implicaitions of deft's courtroom behaviour & inability to wreak havok in future, given BOP regulations.
Concur/Dissent: Mitigation is properly limited under statute & governed by statutory, not constitutional rules.
[Thou shalt not kill. -TMB]
Seventh Circuit:
S1981 Racial discrimination - no error in court refusing plaintiff leave to amend improperly drafted response, insufficient proof that the behavior was pervasive.
Eighth Circuit:
Appeals court (sua sponte) holds plaintiffs property insufficiently farmlike to qualify for mediation protections under FLMA; Insufficient particularity in (pro se) plaintiff's pleading of fraud. Dissent: Degree of farmitude should be argued by parties.
No recovery to plaintiff under IDEA; Dissent: more deference due to ALJ finding.
No error in sentencing court revising upwards b/c of death that happened as a result of heroin sale; Restitution to buyer kosher, not barred as co-participant in criminal act.
When alleging that a summary judgment ignored key facts, cite facts in the record, and say why they're key.
Correspondence + phone calls + one meeting + a request for antifungal cream + a choice of law clause = personal jurisdiction.
Search of automobile did not violate Gant; Sale of a firearm was sufficient "use" of the firearm under the statute.
Replevin actions are not core actions of the Bankruptcy Court, as they do not originate from the Bankruptcy Code.
Ninth Circuit:
Crim - no Brady error in refusing to release document where same truth could be gotten from informaiton the deft already had; No perjury / knowing presentation of perjury; No error in exluding duress instruction; No error in Pinkerton instruciton for VICAR murder charge; No error in exlucsion of lesser-included-predicate-offense instruction.
Search of photographs was within TSA administrative search rationale, but later searches went beyond bounds. Remand for probable cuse determination on arrest
Employee was not retroactively made eligible for FMLA leave upon signing of "last chance" agreement; Where agreement does not specifically reference pre-termination rights, no waiver.
BOP regulation calculating proximity to release upheld as Congress has directly spoken to the issue at hand.
No presumption of irreparable harm on showing of copyright infringement.
An automatic stay imposed by 11 U.S.C. § 362(a) bars actions that would diminish the estate of a debtor in bankruptcy (the first debtor). Therefore, if another (also a debtor in bankruptcy) wants to equitably subordinate the creditor claims of the first debtor, it must seek relief from stay from the first debtor’s home bankruptcy court.
Tenth Circuit:
Law of the case does not bar a subsequent judge from revisiting discretionary (Daubert) rulings of predecessor - circuit split noted; Not allowing time to prepare after "unorthodox" rescheduling was an abuse of discretion;
(TMB is running really late, and has enterred "quick skim' mode.)
Eleventh Circuit:
No standing to challenge approved Clean Water Act consent decreee - redressibility mostly. Dissent - cuts off review of consent decrees, 'fairly traceable' doesn't mean absolute causation, court has budrden to protect all affected parties before entering decree.
DC Circuit:
NLRB findiing that employees' urging management to 'bring their boxing gloves' was a protcted figure of speech was supported by substantial evidence.
Pretrial detention does not jibe with the Bail Reform Act - remand.
Gov't plan to cease feeding elk in naitonal park not arbitrary and capricious.
Federal Circuit:
Jurisductional questions for Court of Fed Claims under Miller Act - too dense for a quick parse. Something about plaintiffs working all night and sleeping all day.
Tuesday, August 02, 2011
Published Circuit Opinons - August 2
(TMB will no longer list "errata" postings. Doesn't seem to be much point, really.)
Third Circuit:
No 4A expectation of privacy in the common areas of a locked mutli-unit building. Logic - the building is locked to provide security, not privacy.
Res judicata does not bar complaints that are predicted on events that postdate the filing of the initial complaint; Not responding to a theory in summary judgment motions means that a party can't object later on to an instruction on the theory; Exclusion of (possibly - apparently bungled in briefs) contradiciton on non-collateral issues didn't affect substantial rights; no DP violation in dismissal of police officer.
Where state law allows municipalities to set a tax rate, but a state agency is charged with collecting the tax, a municipality's suit to encforce a certain interpretation of the tax law is barred under third-party standing doctrine. (NB, statute required that officials of the municipality be joined to any suit to collect the tax.)
Sixth Circuit:
Independent federal remedy exception to Garmon's ban on courts considering matters that arguably implicate NLRA claims saves CFAA suit argung that targeted emails overloaded a server; Targeted email campaign is sufficient damage to server under CFAA; Intent requirement of CFAA does not require perfect knowledge - merely the conscious purpose of causing damage; Use of public access (telephones, email) defeats "unauthorized" requirement of CFAA; No error in refusing leave to amend, especially as the request was in the footnote of a reply brief; Injunction properly denied, as NLGA requires that parties make every reasonable effort to settle before court acts; Targeted email and voicemail campaigh is insufficient 'violence and destruction,' NLGA trumps more specific, later-enacted statute (CFAA).
Eighth Circuit
Revocation of supervised release upheld, as no clear error in court's decision that guns in a youtube video were not props.
No judicial estoppel on a claim where the earlier action was unsuccessful; No need for court to take judicial notice of a pretrial filing in an earlier action where the issue was preserved for trial; No error in jury instructions; Sufficent is the evidence to the verdict therein.
Ninth Circuit:
Even where a prison lockdown continues past the termination of the investigation of the events that led to the lockdown, there was no clear violation of the law by prison officials.
Nondiscrimination policy narrower than "all comers" is reasonable in light of university's purposes of promoting diversity and nondiscrimination; Restrictions are not viewpoint-based, as there was no intent in the policy to restrict certain kinds of speech; Triable issue as to whether the policy was unequally enforced; Nondiscrimination policy is a rule of general application, and therefore does not violate Free Exercise or Equal Protection clauses.
Habeus - a credible claim of actual innocence is an equitable exception to AEDPA's one-year time limit - circuit split flagged; Not in this case, though; Koz, concurring: Dictum, as this dude is non-innocent.
Where co-owner of computer with separate PW-protected files gives possession of the computer to another after removing the PW protection, and the second person then returns it to the other former co-owner, the former co-owner has common authority to consent to a search of the entire computer; Alternatively, there was apparent authority; Dissent: Co-user is not necessarily a co-wner; under bailment theory, ability to access computer files does not necessarily equate with the right to do so; 4A merely requirs that it be a closed container, not a locked one.
No jurisdiction under federal long-arm statute (4(k)(2)), as claims asserted do not arise from federal law, despite prior removal by defts to federal court; Government Contractor Defense TKO's present claim, including duty to warn;
Going to en banc, opinion withdrawn.
Tenth Circuit:
No error in court declining to allow deft to present evidence of a homicide he committed in order to establish a necessity defense on a gun charge; No error in revising sentence upward based on homicide conviction, as the sentence was revised upwards for other reasons entirely.
NB - DC Circuit web server is down.
(If law is code, is a timeout error anarchy?)
Monday, August 01, 2011
Published Circuit Opinions - August 1
Second Circuit:
Long reads today.
Alleged insurance/reinsurance fraud - (1) Where defts offer to stipulate to materiality, a stock price bar chart in prosecution's opening is unduly prejudicial; (2) vacatur where the instruction might allow the jury to convict without finding causation; (3) no error in 'conscious avoidance' instruction for future scienter where there is an extended course of dealing involving forward-looking communications; (4) Jury can convict on multiple theories of liability, viz: they are zones on a continuum of awareness, all of which support criminal liability; (5) 'no ultimate harm' instruction did not undercut deft's 'good faith' defense; (6) Email in passive voice ("have been advised") isn't double hearsay (dictum, as document was ultimately not admitted for the truth of the matter asserted); (7) Alternately inculpatory/exculpatory email did not require severance; (8) Lawyer's memo simply reporting the terms of the deal is not a communication by a subordinate which would absolve the subordinate of responsibility under Connecticut professional standards; (9) Gratuitous admission of statements by execs vilifying deft's employer (AIG) best avoided in coming retrial; (10 ) Admission of testimony from party to conversation (in order to establish scienter) about what the speaker likely meant is kosher, if the witness has some basis for knowledge.
When during sentencing, a judge makes an indiscriminate remark about several potential Guidelines interpretations and claims that he would impose the same sentence no matter what the Guidelines range turns out to be, errors in calculating the Guidelines ranges are still potentially reversible; A website can get the "mass marketing" sentencing bump; Medicare fraud operation and fraudulent organ donation website (seriatum) are 'same course of conduct' for sentencing purposes; Fraudulent website involved 'conscious or reckless risk of death or serious bodily injury,' especially as one bloke went to the Phillipines at deft's urging and passed away in a hospital there; Post-guilty plea flee to the Phillipines gets the obstruction bump; In-range sentence not unduly unparsimonius.
Cross-appeals TKO'd, as case is being heard under an exception to a rule generally barring interlocutory appeals; Error in District Court finding that a literally true statement about cracking down on market timers did not mislead investors, as management was allowing one client to market-time; Even where the Fraud Dicovery Rule is not referenced in statute, fraud is inherently self-concealing, so it applies - this need not be pled, but a reasonable diligence standard is applied to victim's discovery; Injunctive relief allowed where there is "an inference of reasonable expectation of continued violations.
Labor law - District Court should have considered employer as potential successor even absent that argument being made by counsel, as the presumption is where the employees are at the same location, they are working for a successor.
Third Circuit:
No error in holding that S1983 plaintiff alleging defamatory acts (among other things) cannot proceed anonymously. ("No reasonable person" standard of review.)
Given plain reading and avoiding surplussage, contract term is "pay-if-paid," not "pay-when-paid"; Liquidating term in contract (mechanism for pass-through claims by & against subs in construction contracts) is to be broadly read, limiting claim to pro-rata recovery; Counterclaim is timely, as specific claims & defenses can be asserted after time limit has passed, so long as a general denial is offered within the limit; Expenses & costs include attorney's fees.
Seventh Circuit:
Pros Se application for COA granted - question is whether a quasi-collateral Indiana sentencing appeal proceeding gets the petitioner counsel or no.
SSA - Claimant's physician's diagnosis of bipolar disregarded by ALJ in favor of second physician's diagnosis of depression. Reversed under substantial evidence standard. -- The ALJ further doubted that the voices Scott was hearing would keep her from working because she “heard voices in the daytime only once.”
Eighth Circuit:
One meeting in Arkansas = insufficient contacts with forum, as trademark infringement was by a restaurant in Iowa. Sadly, nothing to to with the FB Bros.
No 1A violation in disciplining student for texting about upcoming acts of violence - true threats; not hearsay, as it goes to state of mind; remanded to state courts for state law claim.
Immigration - Membership in family injured by gang violence and known to be opposed to gangs is an insufficiently distinct 'social group' for fear-of-persecution analysis.
No error in court refusing to give an alibi instruction when timely requested.
Even where victim doesn't identify the deft in court, conviction reasonable on circumstantial evidence. Particularly unfortunate set of initials for (juvie) deft.
Ninth Circuit:
Sovereign immunity bars claims against BLM where the violation is of a federal-constitutional type, but claims that would sound in tort under state law may proceed under FTCA; Under Alaska law, whether breach of fiduciary duty sounds in tort or contract varies with the facts; Various BLM statutes do not waive immunity here; Nor does S1983; 11th Amendment limits relief on inverse condemnation to state courts, but also bars claims against the state generally. Extensive 11A discussion.
Environmental law - We hold that to state a claim predicated on RCRA liability for “contributing to” the disposal of hazardous waste, a plaintiff must allege that the defendant had a measure of control over the waste at the time of its disposal or was otherwise actively involved in the waste disposal process. Mere design of equipment that generated waste, which was then improperly discarded by others, is not sufficient.
Given historical state dominance over personalty and secured transactions, California debt-collection notification act not preempted by National Bank Act & related rules.
Order- Going to en banc.
Tenth Circuit:
For sentencing, an 'intended loss' must have been specifically intended, not merely contemplated or possible - deft is sentenced for the amount he actually negotiated the bad checks for, not the credit limit on the checks.
Federal Circuit:
Um, something to do with patent law. And 'Cool Hand Luke' is playing in the park a block away from here. Bye.
Friday, July 29, 2011
Published Circuit Opinons - July 29
Third Circuit:
Nicole Schneyder v. Gina Smith
Where a prosecutor has asked that a material witness be incarcerated and later does not inform the judge of a continuance in the case, the prosecutor is liable for 4A violations under S1983 for the unreasonable (48 day) "continuing seizure." Concurrence: Yep.
Fourth Circuit:
Janet Joyner v. Forsyth County, NC
Where a local Board of Commissioners invites all leaders of congregations within its bounds to offer spoken prayers prior to meetings, and at least some of these prayers are sectarian, the prayers violate 1A guarantees of 'public neutrality among faiths.' Some tension with 11th Circuit holding. Dissent: Policy of pluralistic inclusion saves any Establishment Clause violation.
Sixth Circuit:
Joseph Muniz v. Willie Smith
Habeus for ineffective assistance of counsel denied - although attorney slept through cross of deft, the cross was not a 'substantial portion' of the trial.
Seventh Circuit:
Gerald Morisch v. USA
When filing an appeal arguing insufficiency of evidence, include the trial transcript. Dismissed for noncompliance with 10(b)(2), as reply brief mentioned the omission and plaintiff didn't cure.
Eighth Circuit:
United States v. Edward Joseph Lowen
No suppression of pre-Miranda statements where argument for being in custody is being asked to strike certain poses for photographs; Sufficient evidence despite lack of ID from any of the bank tellers; Allowing officer's statement that the deft looked like the guy on the videotape held inconsequential.
Ninth Circuit:
YOUNG V. HOLDER
Prior panel opinion no longer precedential. Counsel will be playing the Palace - en banc scheduled
D.P. V. PENINSULA SCHOOL
Exhaustion requirements in IDEA are affirmative defenses, not jurisdictional restrictions. (Circuit split flagged.) Even where a claim addresses a harm remedied by the Act, f the pleading does not mention the Act, the exhaustion requirements don't apply. Concurrence: Harm-based approach: if the administrative remedy was available, the exhaustion requirements should apply as affirmative defenses; ConcurDissent: Elevates form of pleading over its substance, defeats Congressional will.
JONATHAN BISSOON-DATH V. SONY COMPUTER ENTERTAINMENT AMERICA
District Court holding adopted without comment.
Tenth Circuit:
United States v. Lente
DWI manslaughter sentencing - guidelines said five years, trial court imposed 18 years. Court of Appeals: No. On remand, second judge imposed 16 years. Court of Appeals here: much lengthier "No."
Kay Electric v. City of Newkirk, OK
Municipalities are susceptible to Sherman Act prohibitions on anticompetitive conduct unless the state has authorized the specific form of anticompetitive conduct under attack.
James River Insurance Company v. Rapid Funding, LLC
Non-expert expert testimony barred under 701 can't be saved by applying state's rules of evidence, because applying Shady Grove test, there is no conflict between the federal rule and the state rule; Insufficient proof to establish that state statute increasing damages was meant to apply retroactively.
Eleventh Circuit:
Langfitt v. Federal Marine Terminals, Inc.
Given right to control work, "borrowing employer" shielded from negligence suit by employee.
DC Circuit:
USA v. Rodney L. Moore
140 page crim opinion - No Batson claim, even though judge didn't discuss each strike on record; Forcing defts to wear stun belts was kosher; Anonymous jury was kosher; Oversteps in opening and closing weren't prejudicial; Non-expert 'overview' witness was not a means of circumventing hearsay (possible Circuit split); No violation of Brady in not disclosing plea of co-conspirator, viz, he was important and taking the drugs to someone else; Jury's finding of Conspiracy writ large within the time frame (though some specific circumstances argue for a different understanding) is not to be disturbed; Joinder of offenses in DC Code was proper; Remand to determine if lab reports violated Confrontation Clause; No error in court's not reviewing all interrogation statements for possible Jencks Act violations; Gov't demonstrating piety of witnesses not barred under 610, as defts had challenged veracity of their conversion ot Islam; Gov't leniency to cooperating witness did not justify new trial; Not giving certain instructions did not unjustly undercut the defts' multiple-conspiracy theory; Predicate-offense claim based on the unitary conspiracy theory goes nowhere, as the theory goes nowhere; Exclusion of co-deft's confession under 804(b)(3) was justifiable, given prior & subsequent inconsistent statements; Proving withdrawal from conspiracy is a burden of ultimate persuasion, not production - (circuit split); Tension between 'aiding and abetting' instuction of 'natural and probable consequences' and required mens rea was not plain error, given the Pinkerton instruction; Denial of severance was kosher; Concurrence: Batson quibble.
Zuckerman Spaeder LLP v. James Auffenberg, Jr.
Active litigation of disputed matters creates a rebuttable presumption of default of arbitration.
By this opinion we alert the bar in this Circuit that failure to invoke arbitration at the first available opportunity will presumptively extinguish a client’s ability later to opt for arbitration.
Federal Circuit:
EON-NET V. FLAGSTAR BANCORP
District Court interpretation of terms of art in the patent was supported by the expression of the patent; Costs and sanctions to challenging party upheld, given discovery (document destruction) and litigation oversteps.
ASSOCIATION FOR MOLECULAR PATHOLOGY V. MYRIAD GENETICS
Patenting of genes (yes) and DNA processes for cancer research - A demand for royalties from putative deft is sufficient for standing to challenge the patent; Isolated DNA is not a 'process of nature' - it is a chemical compound with informational properties, which while it has use in creating processes of nature, is not itself one (Maybe. TMB is particularly inexpert in this field) Special concurrence: Past legislation and theory creates reliance interests and settled expectations arguing for patentability; Dissent: DNA is people!</Charlton Heston>
Nicole Schneyder v. Gina Smith
Where a prosecutor has asked that a material witness be incarcerated and later does not inform the judge of a continuance in the case, the prosecutor is liable for 4A violations under S1983 for the unreasonable (48 day) "continuing seizure." Concurrence: Yep.
Fourth Circuit:
Janet Joyner v. Forsyth County, NC
Where a local Board of Commissioners invites all leaders of congregations within its bounds to offer spoken prayers prior to meetings, and at least some of these prayers are sectarian, the prayers violate 1A guarantees of 'public neutrality among faiths.' Some tension with 11th Circuit holding. Dissent: Policy of pluralistic inclusion saves any Establishment Clause violation.
Sixth Circuit:
Joseph Muniz v. Willie Smith
Habeus for ineffective assistance of counsel denied - although attorney slept through cross of deft, the cross was not a 'substantial portion' of the trial.
Seventh Circuit:
Gerald Morisch v. USA
When filing an appeal arguing insufficiency of evidence, include the trial transcript. Dismissed for noncompliance with 10(b)(2), as reply brief mentioned the omission and plaintiff didn't cure.
Eighth Circuit:
United States v. Edward Joseph Lowen
No suppression of pre-Miranda statements where argument for being in custody is being asked to strike certain poses for photographs; Sufficient evidence despite lack of ID from any of the bank tellers; Allowing officer's statement that the deft looked like the guy on the videotape held inconsequential.
Ninth Circuit:
YOUNG V. HOLDER
Prior panel opinion no longer precedential. Counsel will be playing the Palace - en banc scheduled
D.P. V. PENINSULA SCHOOL
Exhaustion requirements in IDEA are affirmative defenses, not jurisdictional restrictions. (Circuit split flagged.) Even where a claim addresses a harm remedied by the Act, f the pleading does not mention the Act, the exhaustion requirements don't apply. Concurrence: Harm-based approach: if the administrative remedy was available, the exhaustion requirements should apply as affirmative defenses; ConcurDissent: Elevates form of pleading over its substance, defeats Congressional will.
JONATHAN BISSOON-DATH V. SONY COMPUTER ENTERTAINMENT AMERICA
District Court holding adopted without comment.
Tenth Circuit:
United States v. Lente
DWI manslaughter sentencing - guidelines said five years, trial court imposed 18 years. Court of Appeals: No. On remand, second judge imposed 16 years. Court of Appeals here: much lengthier "No."
Kay Electric v. City of Newkirk, OK
Municipalities are susceptible to Sherman Act prohibitions on anticompetitive conduct unless the state has authorized the specific form of anticompetitive conduct under attack.
James River Insurance Company v. Rapid Funding, LLC
Non-expert expert testimony barred under 701 can't be saved by applying state's rules of evidence, because applying Shady Grove test, there is no conflict between the federal rule and the state rule; Insufficient proof to establish that state statute increasing damages was meant to apply retroactively.
Eleventh Circuit:
Langfitt v. Federal Marine Terminals, Inc.
Given right to control work, "borrowing employer" shielded from negligence suit by employee.
DC Circuit:
USA v. Rodney L. Moore
140 page crim opinion - No Batson claim, even though judge didn't discuss each strike on record; Forcing defts to wear stun belts was kosher; Anonymous jury was kosher; Oversteps in opening and closing weren't prejudicial; Non-expert 'overview' witness was not a means of circumventing hearsay (possible Circuit split); No violation of Brady in not disclosing plea of co-conspirator, viz, he was important and taking the drugs to someone else; Jury's finding of Conspiracy writ large within the time frame (though some specific circumstances argue for a different understanding) is not to be disturbed; Joinder of offenses in DC Code was proper; Remand to determine if lab reports violated Confrontation Clause; No error in court's not reviewing all interrogation statements for possible Jencks Act violations; Gov't demonstrating piety of witnesses not barred under 610, as defts had challenged veracity of their conversion ot Islam; Gov't leniency to cooperating witness did not justify new trial; Not giving certain instructions did not unjustly undercut the defts' multiple-conspiracy theory; Predicate-offense claim based on the unitary conspiracy theory goes nowhere, as the theory goes nowhere; Exclusion of co-deft's confession under 804(b)(3) was justifiable, given prior & subsequent inconsistent statements; Proving withdrawal from conspiracy is a burden of ultimate persuasion, not production - (circuit split); Tension between 'aiding and abetting' instuction of 'natural and probable consequences' and required mens rea was not plain error, given the Pinkerton instruction; Denial of severance was kosher; Concurrence: Batson quibble.
Zuckerman Spaeder LLP v. James Auffenberg, Jr.
Active litigation of disputed matters creates a rebuttable presumption of default of arbitration.
By this opinion we alert the bar in this Circuit that failure to invoke arbitration at the first available opportunity will presumptively extinguish a client’s ability later to opt for arbitration.
Federal Circuit:
EON-NET V. FLAGSTAR BANCORP
District Court interpretation of terms of art in the patent was supported by the expression of the patent; Costs and sanctions to challenging party upheld, given discovery (document destruction) and litigation oversteps.
ASSOCIATION FOR MOLECULAR PATHOLOGY V. MYRIAD GENETICS
Patenting of genes (yes) and DNA processes for cancer research - A demand for royalties from putative deft is sufficient for standing to challenge the patent; Isolated DNA is not a 'process of nature' - it is a chemical compound with informational properties, which while it has use in creating processes of nature, is not itself one (Maybe. TMB is particularly inexpert in this field) Special concurrence: Past legislation and theory creates reliance interests and settled expectations arguing for patentability; Dissent: DNA is people!</Charlton Heston>
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