Tenth Circuit -- Aviva Life & Annuity Company v. FDIC

 Aviva Life & Annuity Company v. FDIC

 FDIC determination (reversing earlier lower-level findings) that accounts are not entitled to annuity protections given lack of designation in bank records as annuities is not arbitrary/capricious.

Ninth Circuit -- BRUCE DOUGHERTY V. CITY OF COVINA

BRUCE DOUGHERTY V. CITY OF COVINA

Charge of child molestation insufficient grounds for a warrant to search computer for pr0n.  Circuit split flagged.  Qualified immunity, though, as matter of first impression in the Circuit.

Eighth Circuit -- United States v. Marcellus Watson

United States v. Marcellus Watson

No Confrontation Clause violation where state does not produce objects that police testify to seeing on deft's person (photo of gun on cell phone, belt holster).

No error in introduction of videotape on which officers inform deft that another person alleges that deft shot at them.

Blanket self-authenticating paragraph suffices to authenticate several official documents.

Possession of firearm while drug-runnin' gets the sentencing bump for prior crimes of violence.

Eighth Circuit -- Iowa Assurance Corporation v. City of Indianola

Iowa Assurance Corporation v. City of Indianola

City land use ordinance requiring all properties with a certain kind of racing car to be fenced in is not a regulatory taking under Loretto as there's no exclusion, or under Nollan as there is no sacrifice of property. 

Eighth Circuit -- Badger Capital, LLC v. Chambers Bank of North AR

Badger Capital, LLC v. Chambers Bank of North AR

No error in dismissal of investors' claim of fraudulent concealment as there was no evidence that the bank saw papers constructively establishing  its escrow agency in a relevant transaction.

Eighth Circuit -- United States v. A. Stover, Jr.

United States v. A. Stover, Jr.

No need for court to precisely track the injunction statute when issuing findings in support of the injunction.

No error in permanent injunction requiring affirmative conduct - notifications to tax clients and the government.

Requiring IRS approval for future tax schemes is not an impermissible interbranch delegaiton.

Free Speech argument waived, foreclosed by precedent as tax preparation is commercial speech.

Eighth Circuit -- Erdman Company v. Phoenix Land & Acquisition

Erdman Company v. Phoenix Land & Acquisition

No error in district court finding that compulsory arbitration on counterclaims would prejudice the pending civil action - further, there is no need to prove prejudice to bar compulsory arbitration where a party attempts to pursue a remedy simultaneously through arbitraiton and litigation.

Eighth Circuit -- Archie Bear v. John Fayram

Archie Bear v. John Fayram

No error in District Court's holding that the text of the AEDPA statute was in the prison library.

The fact that AEDPA is tolled only at the time of filing a state habeus petition derives clearly from the statute - lack of clarifying caselaw in the library did not constitute a denial of access to the courts.

Seventh Circuit -- Linda Florek v. Village of Mundelein

Linda Florek v. Village of Mundelein

No error in dismissal of Fourth Amendment  S1983 claim against police for not getting aspirin to person at scene of warranted search.  Plaintiff had asked for aspirin, and was later taken to hospital after reporting chest pains.

No error in court barring expert testimony on the appropriate length of time between door-knocking and battering-ram-battering.

Seventh Circuit -- Lady Di's Incorporat v. Enhanced Services Billing

Lady Di's Incorporat v. Enhanced Services Billing

When filing a class-action suit against a company for putting unauthorized services on your phone bill, first make sure that you didn't order the services.  In an astonishing display of gumption, plaintiffs press on.

Court holds that the state phone billing regulation isn't fit to borrow for proof of unjust enrichment and/or deception, as the statute applies to phone companies, not the service-provider defts here.  As there's not provable foul, there's insufficient commonality for certification.

Sixth Circuit -- USA v. Steven Green

USA v. Steven Green

Former serviceman tried under statute giving federal criminal jurisdiction  to those not covered by UCMJ but who committed offenses while in the services.

Held: 

Standing - military constructive waiver of jurisdiction did not operate to guarantee the jurisdiction of the district court.

Deft's discharge was valid, despite missing some elements required by Army rules, as there was a valid discharge certificate, final accounting of pay, and "a clearing process."

The Act giving the federal criminal courts jurisdiction does not violate SOP, despite the level of discretion afforded the Executive in deciding whether to join UCMJ defts to civilian defts.

No 14A violation under class-of-one -- as the charging decision happened after discharge, there was no similarly situated comparator - additionally, no ill-will, and insufficient proof of arbitrariness.

No Due Process violation by Army's discharge then prosecution, as the discharge happened before the crimes came to light.

(Prosecution in Iraq impossible, given immunity of soldiers.)


Concurrence - Majority disses the army in dicta & I don't join that line of the opinion.

Sixth Circuit -- Nat'l Air Traffic Controllers v. Sec., Dep't of Transportation

Nat'l Air Traffic Controllers v. Sec., Dep't of Transportation

Suit by air controllers challenging the privatization of a certain classification of air traffic control towers.

Held - a statute which implicitly legitimized the privatization is on-point, as it should be broadly construed.

Standing - as none of the individual plaintiffs can now claim a harm, and the organizational standing was predicted on a question of law that has been resolved, earlier court decisions holding that plaintiffs had Article III and prudential standing do not bind as the law of the case.  Properly moot.

Fifth Circuit -- ASARCO, Incorporated, et al v. ASARCO, L.L.C., et

ASARCO, Incorporated, et al v. ASARCO, L.L.C., et

Bankruptcy court reimbursement order sufficiently final for appellate jurisdiction - circuit split with C2 flagged.

Reimbursement for due diligence to all bidders  in a multi-step auction is properly a business judgment expense, not an administrative cost for the estate.

Fourth Circuit -- National Electrical Manufacturers v. US Department of Energy

National Electrical Manufacturers v. US Department of Energy

Chevron deference to agency ruling on the sizes of electric motors covered by a rulemaking.  Legislative history suggesting otherwise dissed.

Dissent: Whole Act, Legislative History, prior agency holdings otherwise.

Third Circuit -- Brandao v. Atty Gen USA

Brandao v. Atty Gen USA

Where an illegitimate child immigrates with his parent who is subsequently naturalized prior to his 18th birthday, derivative citizenship cannot be granted if the law in their home country does not recognize illegitimacy.

Third Circuit -- Karen V. Cappuccio v. Prime Capital Funding, LLC. et

Karen V. Cappuccio v. Prime Capital Funding, LLC. et

Mortgage/ TILA claim.

As threshold matter, the appeals clock runs not from the time when judgment is entered against all defendants, but from when final liability (more than ministerial functions) is apportioned.

The testimony of the borrower is sufficient to burst the bubble of the presumption of receipt - jury instruction suggesting otherwise is error.

Third Circuit -- USA v. Michael Waller

USA v. Michael Waller

Error in jury instruction on Intent which said that jury should consider anything the deft said or didn't say, as this implicates post-Miranda silence.  Vacate and remand, as gov't must prove beyond reasonable doubt that the error was harmless, and ain't no way that's gonna happen.

Third Circuit -- Secretary of Labor v. ConocoPhillips Bayway Refinery

Secretary of Labor v. ConocoPhillips Bayway Refinery

 Company fined by DOL for asbestos violations, but reversed by OSHA Commission, which held that the Department  must identify the case-specific scenario for asbestos harms. 

The Court here reverses the Commission, holding that where the company has actual or constructive knowledge of the violation, violates standards, and engages in work presumed to pose a danger of asbestos release, no case-specific evidence need be adduced.

First Circuit -- US v. Berk

US v. Berk 

Errata, viz: 

On Page 15, footnote 7, line 7, "it an was error" should read "it was an error."

First Circuit -- Adelson v. Hananel

Adelson v. Hananel 

Errata 

First Circuit -- US v. Dellosantos

US v. Dellosantos 
US v. Szpyt 

Appellants argue insufficiency of the evidence, but Court holds instead that the evidence at trial prejudicially varied from the charges in the indictment .  The indictment charged that the two defts conspired to distribute cocaine and MJ - here, the Court holds that these were two separate conspiracies, and the disparity between the unitary conspiracy alleged and the double conspiracy proven is sufficient to vacate the convictions.

Concur/dissent - defts had sufficient awareness of the multiple plans to make it a single conspiracy.

Second Circuit -- In re: Bernard L. Madoff Inv. Sec. LLC

In re: Bernard L. Madoff Inv. Sec. LLC

The Dickensian-named ponzi windup continues.

Here, customers appealed a bankruptcy court ruling that the amount owed them should be determined by the amount of money they deposited with the scheme, not the amount of money in their statements (inflated by fictitious earnings).  First, the court holds that they are customers for purposes of the statute, as the monies were deposited for the purpose of investing in securities.  Second, the court ratified the 'net investment' method of calculating net equity, but limited its decision to extraordinary cases such as this where the books were so thoroughly and capriciously cooked.

DC Circuit -- Estate of Mark Parsons v. Palestinian Authority (8/12)

Estate of Mark Parsons v. Palestinian Authority

Family of man killed while providing security for a State Department convoy in the Gaza Strip filed suit against the PLO under the Anti-Terrorism Act of 1991 on theories of both material support and conspiracy - District Court granted summary judgment to defts, Circuit reverses on material support, but in tangled melange of dissents, declines to speak to scienter requirement.

DC Circuit -- In re: Antoine Jones

In re: Antoine Jones

Dismissal of a S1983 claim on the grounds that it would amount to a collateral attack on conviction counts as one of the PLRA three strikes.

DC Circuit -- DHS v. FLRA

DHS v. FLRA

No review of finding that reassignment of DHS workers was an unfair labor practice, as (1) the working agreement was not a CBA, and therefore could not represent negotiated assent to the change and (2)  the change in work was significant enough.

DC Circuit -- In re: David Kissi (8/12)

In re: David Kissi
 In re: David Kissi

PLRA three strikes rule applies to mandamus filing fees related to pending civil actions. 

Eleventh Circuit -- USA v. Robert D. Singletary

USA v. Robert D. Singletary

Restitution  order of 1M set aside.

It thus appears that the court merely intuited losses of $1 million for purposes of its § 2B1.1(b)(1) determination and then used that figure in awarding the United States forfeiture.

(In fairness, gov't had asked for 3M)

Tenth Circuit -- Larry Snyder and Company v. Miller

 Larry Snyder and Company v. Miller

Wher flaws are later found in construction, the specific remedy terms in the sub contract govern - not the general flow-through term binding all subs and contractors to the project developers' decisions.

Tenth Circuit -- United States v. Cooper

United States v. Cooper

Tax & wire fraud -

Sufficient evidence.

No Brady violation where the evidence is cumulative to other stff in the record calling the deft a schmuck - insufficiently stark contrast to provide a new angle on the impeachment of the witness.

Warrant not defective, as specific grounds were cited, not mere conclusions.

Warrant sufficintly particular (when read in the context of the affadvits).

No error in denial of Franks hearing.

Ninth Circuit -- USA V. MIGUEL VASQUEZ

USA V. MIGUEL VASQUEZ

Warrant had probable cause, as informants identified the deft as  the leader of a gang, and Magistrate could reasonably conclude that records would be found at his house.

Warrant was not overbroad, as it was only for documents relating to the gang.

No error in denial of Franks hearing to challenge informant's characterization of him as  "president" of the group, as mere officer would have sufficed for the search.

Sufficient Evidence.

Sentence substantively reasonable, even though several RICO defts in same group got less.

Ninth Circuit -- MICHAEL HOWARD V. OREGONIAN PUBLISHING CO.

MICHAEL HOWARD V. OREGONIAN PUBLISHING CO.

Where companies purchase drivers license data for the purpose of an undefined future use, such acquisition is not a violation of Act which specifies the authorized uses of such data, as stockpiling is not a use.   

Ninth Circuit -- IN DEFENSE OF ANIMALS V. UNITED STATES DEPARTMENT OF THE INTERIOR

IN DEFENSE OF ANIMALS V. UNITED STATES DEPARTMENT OF THE INTERIOR

The Misfits II: Likely Success on the Merits

Interlocutory appeal seeking preliminary injunction barring roundup of wild horses and burros dismissed as moot, as the roundup has already happened.  Balance of civil action still pending.

Dissent: Although the roundup happened, the animals are still in temporary holding, and relief is still possible.

Ninth Circuit -- NDOC V. RUSSELL COHEN

NDOC V. RUSSELL COHEN

 Ban on inmates possessing typewriters upheld.

1 - Not unduly retaliatory, as it was enacted after a murder using one.
2 - No violation of access to the courts, as although the Nevada Supreme Court requires typewritten briefs, inmates' injury is speculative, as no appeals are in the record.
3 - No 14th Amendment violation as it is a rule of general application
4 - No error in cutting short discovery.

Eighth Circuit -- United States v. David West Dixon

United States v. David West Dixon

Crim -

1. Sufficient Evidence
2. No error in court not dismissing sua sponte a venireman who indicated possible bias towards police.
3.  No procedural/substantive error in sentence.

Eighth Circuit -- Jerome C. Anderson v. Hess Corporation

Jerome C. Anderson v. Hess Corporation

Under North Dakota law, a drilling company need not spud the well to fulfill a boilerplate drilling requirement in a mineral lease.

No error in District Court not certifying questionn to state supreme court, given plain meaning and caselaw.

Eighth Circuit -- United States v. Traves Rush

United States v. Traves Rush

Initial  encounter was consensual - followed by marked police car, deft had to walk past armed officer in his path.  In that he could have done so, consensual conversation.

Placing deft in back of police car not unreasonable after discovery of ~2K, given bank robbery within the hour.

Exclusion of radio calls saying getaway car was red Chrysler as hearsay (when introduced by deft to show unreasonableness of initial seizure of blue Chrysler)  harmless.

Eighth Circuit -- United States v. Edward Boroughf

United States v. Edward Boroughf

Appellate waiver enforced over Anders challenge to reasonableness of sentence..

No error in prior being counted despite being similar to and within timeframe of presently charged conspiracy, as court could reasonably find it to be unrelated.

Eighth Circuit -- Ninoska Lopez-Amador v. Eric H. Holder Jr

Ninoska Lopez-Amador v. Eric H. Holder Jr

Immigration -

Insufficient past persecution  when generally targeted by snipers at a demonstration & encountering vehicle checkpoints.

Insufficient likelihood of future persecution based on sexuality, as the only evidence in the record refers to transgender individuals.

Seventh Circuit -- Kenneth Carter v. Pension Plan of A Finkl

Kenneth Carter v. Pension Plan of A. Finkl

Where a pension plan starts windup but then reverses, an amendment to the Plan offering annuities on windup irrespective of employment status with the company:

(1) Doesn't violate ERISA, as it's nothing to do with retirement - workers are hoping to gain the annuity without retiring.

(2)  Doesn't violate the anti-cutback rules within the plan, as Administrator could reasonably rule that it was only triggered by the windup that didn't happen.

No error in calculation of certain kinds of bonuses as income for purposes of the plan, given longstanding practice of employer.

No success on the merits means no fee for you.

Seventh Circuit -- USA v. Charles Robertson

USA v. Charles Robertson

Where resentencing for violation of supervised release departs from the range guidelines and the sentencing judge doesn't even reference the guidelines in sentencing, vacate & remand.

(Till Eulenspiel moment:  Deft served ~10 yrs in prison for growing MJ, arrested in last days of 8 yrs. supervised release while tending MJ plants.  When asked why, he said that he liked the way the plants looked, and he liked to smoke them.)

Sixth Circuit -- USA v. Michael Judge

USA v. Michael Judge

No error in not explaining sentence sufficiently, as court dealt with all args advanced by deft.

No error (abuse of discretion standard) in court possibly considering a future 35(b) motion to reduce sentence when imposing initial sentence.  

 

Fourth Circuit -- US v. Tyerail Massenburg

US v. Tyerail Massenburg

Lack of eye contact and standing a bit apart from the others is insufficient grounds for a frisk during a Terry stop where the police are responding to an anonymous report of shots fired.

The collective knowledge rule (knowledge of instructing officer imputed to executing officer) does not operate in the aggregate (the sum of all knowledge possessed by policemen at the scene) - some degree of connection or instruction is required.

Third Circuit -- People of the Virgin Islands v. Tydel John

People of the Virgin Islands v. Tydel John

No reasonable reliance exception for faulty search warrant for pr0n based on investigation of child abuse.

First Circuit -- Mississippi Public Employees v. Boston Scientific Corp.

Mississippi Public Employees v. Boston Scientific Corp.

No reasonable evidence of enough scienter after initial discovery where:

- Manufacturer contemplated change in device which might or might not necessitate a recall - no evidence as to ultimate impact on stock viability.

- Manufacturer insisted that greater physician familiarity with the device would reduce the problem of sticky stents.  (It didn't lull the market to any fundamental problems with the device.)

- Partial recall publicly described by CEO as "not tip of the iceberg" - CEO said privately that he wasn't confident the situation was under control.

A/C Privilege -

The fact that discussions were about how to avoid future problems does not remove the privilege.

No t improper for company to direct all relevant internal communication via the GC's office - such funnelling does not manufacture privilege.

Second Circuit -- Goodrich v. LIRR Co.

Goodrich v. LIRR Co.

For IIED liability under FELA, the conduct must occur within the zone of physical danger contemplated by the statutory scheme; a railroad electrician whose co-worker publicly identified him as HIV-positive cannot pursue a claim.

Second Circuit -- John Wiley & Sons, Inc. v. Supap Kirtsaeng

John Wiley & Sons, Inc. v. Supap Kirtsaeng

Big holding - The First Sale Doctrine of S109 does not apply to works manufactured outside of the United States.   S602, Which would otherwise bar the unauthorized importation of such works, governs.  


No plain error in not giving "no set law on this yet" jury instruction, as deft had chance to present that theory during trial.


No error in admitting evidence of gross revenues, which included books made by other companies.


Dissent:  No requirement in statute that the works be produced domestically.

Second Circuit -- Briscoe v. City of New Haven

Briscoe v. City of New Haven

In Ricci, the Supreme Court held that a city could not refrain from certifying firefighter exam results from fear of a disparate impact Title VII suit, even thogh certification risked a disparate treatment suit.

Held: (1) The dictum in Ricci  does not shield the city by nonparty preclusion from a disparate impact suit; (2) Crossing the streams of disparate impact statutory law and disparate treatment caselaw would be a really, really bad idea; (3) The one-line dictum is insufficient grounds for a 12(b)(6) dismissal by the lower court.

DC Circuit

The DC Circuit server is down at 8:46PM ET -- your correspondent is therefore going to the gym and will add these cases next week.

Eleventh Circuit -- State of Florida v. Dept of HHS

Q: What's 304 pages long and holds the individual health care mandate unconstitutional?

A:  State of Florida v. Dept of HHS

Tenth Circuit -- United States v. Hoskins (Jodie)

United States v. Hoskins (Jodie)

No error in court declining to consider hypothetical tax returns and instead accepting gov'ts estimate of loss.

Tenth Circuit -- Chevron Mining Inc. v. United Mine Workers of America

Chevron Mining Inc. v. United Mine Workers of America

Arbitrator's resolution draws its essence from the CBA.

Ninth Circuti -- STEVE BALDWIN V. KATHLEEN SEBELIUS

STEVE BALDWIN V. KATHLEEN SEBELIUS

(Quick skim of intro)

No standing for challenges to the health care act, as individual has not proved that he doesn't & will not have insurance and company hasn't proved it is of sufficient size.

Ninth Circuit -- NYOKA LEE V. CORINTHIAN COLLEGES

NYOKA LEE V. CORINTHIAN COLLEGES

(Very quick skim)

College alleged to have paid recruiters in violation of statute --

Given vagueness  of criteria, compensation ratings do not find safe harbor, as it might shield impermissible acts.

Leave to amend the complaint should have been granted - scienter may be established in subsequent amendments.

Ninth Circuit -- USA V. CARLOS MARGUET-PILLADO

USA V. CARLOS MARGUET-PILLADO

Error in not giving derivative citizenship jury instruction, as it had not been conclusively established in first trial.

Ninth Circuit -- ALADS V. COUNTY OF LOS ANGELES

ALADS V. COUNTY OF LOS ANGELES

Policemen suspended during pendency of felony charge against them and who retired before resolution of the question may pursue S1983 claim for lack of sufficient post-termination processes.

Dissent - no protected interest in being paid while in the dock.

Ninth Circuit -- PINTO V. HOLDER

PINTO V. HOLDER

Where BIA hold for deportation and remands for IJ consideration of voluntary departure, order is sufficiently final.  

Eighth Circuit -- United States v. Kevin Price

United States v. Kevin Price

No error in sentencing - deft argument that semiautomatics are less dangerous than handguns is unavailing.

Eighth Circuit -- United States v. Danny Reaves

United States v. Danny Reaves

No error in limiting cross, as sufficient ev against witness was already in record, No Brady violation as not material, No error in jury instruction on witness tampering, sufficient evidence, ineffective assistance should be addressed on collateral challenge.

Eighth Circuit -- Joan Najbar v. The United States

Joan Najbar v. The United States

Postal matter exception to FTCA bars suit against gov't for returning a soldier's letter to sender marked "deceased."

Eighth Circuit -- Vincent Ofor v. U.S. Bank, N.A.

Vincent Ofor v. U.S. Bank, N.A.

Signatures on mortgage forms & power of atty were kosher / not timely raised.

Sufficient TILA statutory notification on foreclosure.

Eighth Circuit -- NLRB v. Leiferman Enterprises, LLC

NLRB v. Leiferman Enterprises, LLC

Substantial evidence for NLRB fact-intensive finding of successor-in-interest.  Employer claims of insufficient glazier continuity unavailing.

Eighth Circuit -- Carolyn Schubert v. Auto Owners Insurance Company

Carolyn Schubert v. Auto Owners Insurance Company

Good-faith allegations of pleading as to vexatious refusal to pay claim suffice for establishing 75K amount in controversy.

Insurance provision limiting recovery to half of policy where interest in the property has substantially changed is void since contrary to state law.

Policy provision  is not overly vague.

Eighth Circuit -- G. Latta Bachelor v. Regions Bank

G. Latta Bachelor v. Regions Bank

Despite possible mismanagement of the estate, executrix' actions did not vitiate the spendthrift thrift of which she was the beneficiary - its proceeds can therefore not be attached by executrix' creditors.

Eighth Circuit -- Donald Moeller v. Douglas Weber

Donald Moeller v. Douglas Weber

 Where death penalty juror asks about possibility of parole and judge refers them to the verdict form which says "life imprisonment without parole," no clear violation of law.

Nonparticipation in Daubert hearing & lax challenge to soil samples were strategic choices, not ineffective assistance .

 No abuse of discretion in allowing expert to work for both sides.

Aggravating factors did not have to be in the indictment when included in a notice 8 months before trial.

[Thou shalt not kill. - TMB]

Eighth Circuit -- Fond Du Lac Band v. Myron Frans

Fond Du Lac Band v. Myron Frans

 Minnesota may tax out-of-state pension monies received by Band members on the reservation. 

Constitutional claim - Minnesota and US citizenship, while legislatively allowing for the retention of tribal property, create a nexus sufficient for the state to tax Band members.

Statutory - Off-reservation character of the pension .allows state to tax.

Dissent - Every Single Other Case on the Subject Says You Guys Are Wrong. (Paraphrase, natch.)

Seventh Circuit -- USA v. Kenneth Gaytan

USA v. Kenneth Gaytan

 Where the drug buy happens inside a car - outside of video surveillance but within audio surveillance - gov't does not have to call CI who made the buy to establish sufficient evidence.

No confrontation clause issue on taped statements of CI, as although testimonial, they weren't in for the truth of the matter asserted.

No Old Chief-type  error in agents testifying to events inside the car as opposed to the CI doing so.

Possible inadmissible expert testimony by agent translating drug argot harmless error.

Seventh Circuit -- Aurora Blacktop Inc. v. American Southern Insurance

Aurora Blacktop Inc. v. American Southern Insurance

Removal is proper despite lack of party who should be joined, as party was never served in state action - additionally, parties waived the issue by not challenging removal within 30 days.

Under Illinois law, language in the surety must reference third parties in order for them to have third party standing for enforcement - subsequent letters of the direct beneficiary are irrelevant, as the intention at the time of contract is the deciding fact.

Seventh Circuit -- Susie Weitzenkamp v. Unum Life

Susie Weitzenkamp v. Unum Life

Goinig to en banc - prior opinion withdrawn.

Sixth Circuit -- In re: Elizabeth Collins

In re: Elizabeth Collins 

Bankruptcy trustee's status as a hypothetical judicial lien creditor perfected as the date of filing means that an allegation that another creditor was not perfected as of date of filing means that a 12(b)(6) dismissal of the trustee's assertion of priority is durn wrongheaded.

Ambiguity as to who held the mortgage paper on the date of filing meas that , prior to summary judgment, the court must determine the proper holder at the time.

No error in bankruptcy court setting aside default judgment under 60(b)(6) when all parties agree that the entity had no interest or claim in anything on the date of filing.

Sixth Circuit -- Pipefitters Local 636 v. Blue Cross Blue Shield of Mich

Pipefitters Local 636 v. Blue Cross Blue Shield of Mich 

 Class certification reversed - the fact-specific question of whether an entity was acting as an ERISA fiduciary means that the class is not a superior method of adjudication.  Given legitimate variation sin facts, non-class action would not subject deft to incompatible standards of conduct/conflicting affirmative duties.

Sixth Cicuit -- Dora Giraldo v. Eric Holder, Jr.

 Dora Giraldo v. Eric Holder, Jr. 

 No statutory bar to jurisdiction where IJ grants withholding of removal and BIA reverses and remands for consideration of voluntary departure - th BIA order is sufficiently final.  BUT prudential considerations counsel against jurisdiction, since statute forfeits voluntary departure upon filing of appeal, and allowing intermediate appeals would be a means of circumventing this restriction.

Sixth Circuit -- Gary Otte v. Mark Houk

Gary Otte v. Mark Houk 

 No error in State court finding that deft's waiver of trial by jury was sufficiently knowing, despite antipsychotic meds.

No ineffective assistance in not bringing in a substance abuse expert to testify - would have been cumulative.

Not introducing evidence as to upbringing at penalty phase was a strategic choice, not ineffective assistance.

Miranda challenge arguing drug & alcohol withdrawal TKO'd.

[Thou shalt not kill.  -TMB]

Sixth Circuit -- Sean Taylor v. Kennth T. McKee, Warden

Sean Taylor v. Kennth T. McKee, Warden

Where state has a contemporaneous objection rule, lack of objection defaults subsequent habeus claim.

Ineffective assistance claim can't save the procedural default, as it wasn't exhausted at the state level.  

Ineffective assistance claim on collateral attack, claiming that trial-level ineffective assistance wasn't pursued TKO'd  as there is no right to appeal counsel.

No requirement that prisons provide those capable of writing legal briefs. 

Sixth Circuit -- USA v. Gardner

USA v. Gardner 

Categorically, earlier conviction for battery too broad to qualify as a prior for mandatory minimum for possession of child pr0nography.

Procedural problems with state PSR (missing court stamp, no sign that deft assented to terms) mean that it cannot be used to establish the prior.

Sixth Circuit -- USA v. Dawn Hanna

USA v. Dawn Hanna 

Misspelling of name in email attachment does not mean that the warrant was groundless.

Email warrant did not have to be pinpont specific or divided by subject of emails.

No error in exclusion for relevance of testimony from head of larger company saying that he had been similarly misled.

Where (90 month) sentencing error results from deft's requests, doctrine of invited error precludes fix on appeal.

National security sentencing bump for violating the Iraq embargo upheld.

No Brady violation.

Where the criminality of the act comes from an executive order, collaboration in the crime by members of the executive does not make it lawful.