Seventh Circuit -- Northfield Insurance v. City of Wau

Insurer had no duty to defend municipality on S1983 claims, as they were outside the time of the polcy's coverage.

Malicious prosecution claim might not accrue with a nolle prosequi.  (Dictum)

Concurrence: Consolidate, why don't you.

Seventh Circuit -- Edward Raybourne v. CIGNA

De novo review of post-remand agency finding.

In that insurer was arguing against claimant to the SSA at the time tat it denied benefits (against the SSA finding), insurer acted in a procedurally unreasonable manner.

No error in award of fees.  No error in award of fees for the entirety of the litigation, given single legal theory throughout.


Edward Raybourne v. CIGNA

Seventh Circuit -- USA v. William Hagler

State statute of limitations runs from the fist positive DNA identification, not the beginning of DNA analysis.

No constitutional harm in pretrial delay, as no prejudice to deft.

Sufficient evidence.

Later ambiguous DNA evidence in clothes inside getaway car not enough for new trial.


USA v. William Hagler

Seventh Circuit -- Josalynn Brown v. Advocate South

Insufficient evidence for a mosaic Title VII claim of unfair treatment.

No Title VII retaliation claim, as no comparator, and facts insufficient.

Josalynn Brown v. Advocate South

Seventh Circuit -- USA v. Dominick Pelletier

Deft wasn't in custody for Miranda purposes when answering questions during an FBI job interview.

Warrantless search upheld under inevitable discovery, as police would have easily been able to get a warrant, and showed every intention of doing so.


USA v. Dominick Pelletier

Sixth Circuit -- Michael Rimmer v. Eric Holder, Jr.

Death penalty deft seeking disclosures on prosc investigation via FOIA

No error in FOIA denial, as statutory protections of third parties justified the redaction, and the purpose of the statute is to prevent federal misdeeds, not state ones.

APA cannot be used to review the denial, as petitioner could have challenged the FOIA denial de novo in the District Court. 

Docs could have been requested using a simple agency request (Touhy request).


Michael Rimmer v. Eric Holder, Jr. 

["thou shalt not kill" - MB]

Fourth Circuit -- Maryland Transit v. Surface Transportation Board

STB did not err in denying a railroad's request to partner with a state govt to improve property.  Statute requires ready funds and indemnification.  Deal made funds contingent to legislative approval and relied on sovereign immunity.

Board not overly ministerial.

Maryland Transit v. Surface Transportation Board

Fourth Circuit -- Jimmy Martin v. Reginald Lloyd

Gambling statute not void for vagueness on facial challenge as (1) gambling isn't a constitutional right and (2) statute is not void as to all applications.

Ex Parte Young (no, not that part of the holding - the other part of it) not violated by the fact that one party has to put a prohibited machine into service to create a case/controversy.  The rule only applies where a question of fact can only be determined by conduct which might violate the statute.

Jimmy Martin v. Reginald Lloyd

Third Circuit -- USA v. Amifa Knight

Admission of evidence as to underlying murder scheme in perjury prosecution was proper, as deft was charged with conspiracy to commit the murder.

No error in denial of motion for acquittal 85 days late.

No error in finding that first degree murder was a related offense for purposes of sentencing guidelines, since at the time of the perjury, deft knew of the murder.



USA v. Amifa Knight

Third Circuit -- USA v. Paul Pavulak

Affidavit wasn't specific enough to justify the warrant, but police relied in good faith.  Where the same officer who obtained the affidavit conducted the search, not a per se violation.

No error in denial of Franks hearing, as deft didn't make sufficient showing.

No error in Prsc's closing - "consider the big picture" not improper cumulaiton.

Sufficient evidence for conviction.

No error in court applying modified categorical analysis for sentencing to impose mandatory life sentence, as statutory maximum would otherwise be life -- Apprendi is not triggered.

USA v. Paul Pavulak

First Circuit -- Rodriguez-Machado v. Shinseki

Appeal TKO'd for shoddy brief-writing.

"Infract" as a transitive verb.

Rodriguez-Machado v. Shinseki

First Circuit -- Fairbank Reconstruction v. Greater Omaha Packing

Jury could have rationally dfound that deft shipped bad beef.

In limine ruling that video evidence is admissible doen't mean that the objection doesn't have to be renewed upon introduction to preserve for appeal.


Fairbank Reconstruction v. Greater Omaha Packing

First Circuit -- House of Flavors, Inc. v. TFG-Michigan, L.P.

Appeals clock runs from entry of final judgment, despite pending motion for statutory attorneys fees.



House of Flavors, Inc. v. TFG-Michigan, L.P.

First Circuit --US v. Peters

When State A imposes sentencing condition of a certain number of years of good behavior after release, and the deft then serves time in State B as well, the condition is in effect upon release from State B for purposes of the sentencing bump for committing offenses while under sentence.

US v. Peters

First Circuit -- Redondo Construction Corp. v. PR Highway and Transportation

Remand to determine whether the statutory level of post-judgement interest should prevail.

Remand to determine whether prejudgment interest was assessed as a penalty.

Court shouldn't have awarded PL more than asked for or proved.

Redondo Construction Corp. v. PR Highway and Transportation

End of day

A smattering of other opinions in the DC Circuit & Federal Circuit -- feel free to peruse directly.

Ninth Circuit -- USA V. JOANN WIGGAN

Grand jurors can't testify at trial to matters beyond materiality of deft statements.  (It's a 'brume.')

Materiality is an inquiry into the relevance of the statement in the deliberations of the grand jury, not a characterization of the statement itself.

Sufficient Evidence.

USA V. JOANN WIGGAN

Eighth Circuit -- Shawn Copeland v. Richard Fink

Debtors wanted to prioritize tax and tax preparation unsecured debt. 

Bankruptcy court did not wish to do so. 

No clear error, saith the Eighth Circuit.

 Shawn Copeland  v.  Richard Fink

Seventh Circuit -- EEOC v. Thrivent Financial

Employer learned of employee's migrane troubles outside of 'medical inquiries and examinations,' so no ADA claim.

No Chevron deference to EEOC, as the term has a plain meaning.


EEOC v. Thrivent Financial

Seventh Circuit -- USA v. Lincoln Plowman

No error in barring entrapment defense, as there was no inducement.  (No matter how charismatic the undercover agent was.)

USA v. Lincoln Plowman

Seventh Circuit -- Marko Vrljicak v. Eric Holder, Jr.

Administrative regulation requiring filing within a 'reasonable' time is not unconstitutionally vague.

Marko Vrljicak v. Eric Holder, Jr.

Seventh Circuit -- Shane Holloway v. Delaware County

No deprivation of 14A constitutional rights due to accidental nine day pretrial incarceration.

Staff not indifferent to petitioner's med problems.

Shane Holloway v. Delaware County

Second Circuit -- United States v. Marin Moreno

Hasty retreat by deft & soundness of tip justified warrantless entry under exigency, as there was a risk of evidence being destroyed.

Consent obtained after being subdued and restrained and told that she had better cooperate was voluntary.

United States v. Marin Moreno

First Circuit -- Nystedt v. Nigro

The question: quasi-judicial immunity for the players in an allegedly Jarndycean probate suit.

No error in 54(b) certification of appeal after partial judgment.

(Random quoting of "Polonius" in Hamlet.  Love the First Circuit.)

Quasi-judicial immunity extends to administrative & ex parte acts, and to associated entities.


Nystedt v. Nigro

First Circuit -- US v. Murdock

Where deft was on his own (small) front lawn for an hour while officers conducted a search, he wasn't in custody -- non-Mirandized statement is admissible.

No abuse of discretion in allowing tape of phone call without establishing identity of caller where caller identified self & demonstrated knowledge of many things.

No clear error in ACCA sentencing - the names were different on the paperwork for the priors, but it could have been a scrivening error.


US v. Murdock

First Circuit -- Truczinskas v. Director, OWCP

Statutory judicial review of claims under the Defense Bases Act is proper to the Circuit Court, not the District Court (Circuit split flagged.)

Claimant didn't carry proof of non-suicide by a preponderance.

Depressing read.

Truczinskas v. Director, OWCP

Eleventh Circuit -- HDI-Gerling America Insurance Company, v. Morrison Homes, Inc., et al

Questions certified to Georgia Supreme Court - insurance litigation

HDI-Gerling America Insurance Company, v. Morrison Homes, Inc., et al

Eleventh Circuit -- City of Atlanta v. City of Sandy Springs

Federal District court can't bar state court proceedings under Anti-Injunction Act, as the water supply consent decree at issue is fundamentally in personam - it doesn't give general jurisdiction over the res of the pipes.

No supplemental jurisdiction under 1367 - different set of facts.

City of Atlanta v. City of Sandy Springs

Ninth Circuit -- USA V. MOISES CATALAN

Sentencing Commission ruled that a certain cutoff doesn't generally include probation revocation after illegal re-entry - this is a clarification, not a change, and therefore applies in the instant case.

USA V. MOISES CATALAN

Ninth Circuit -- KAREN SLATER V. HAROLD CLARKE

Absolute immunity for prosecutorial extradition decisions.

(Non-extraditee murdered people after issuance of a limited extradition request.)

KAREN SLATER V. HAROLD CLARKE

Ninth Circuit -- USA V. MARCELINO OSEGUERA-MADRIGAL

No obligation to inform petitioner of waiver for marijuana crimes when the conviction was for cocaine.

Within guidelines sentence reasonable.

Parephenalia counts for drugs as far as immigration predicate offenses go.

USA V. MARCELINO OSEGUERA-MADRIGAL

Seventh Circuit -- Elliot Ray v. Marc Clements

"Prison mailbox rule" applies to toll AEDPA one year SOL for purposes of a Wisconsin state filing.  (Private prison, incidentally, though apparently not discussed- quick skim)

(Long read.)

Prisoner has burden of production, but state must still carry ultimate burden, despite the fact that it's an affirmative defense.

Concur/dissent:

Petitioner should bear ultimate burden on the affirmative defense

No clear error in lower court decision contrary on merits.

Elliot Ray v. Marc Clements

Fourth Circuit -- Adriano de Almeida Viegas v. Eric Holder, Jr.

Remand to trial court for sentencing after Scotus vacate & remand on crack/cocaine FSA disparity.

Adriano de Almeida Viegas v. Eric Holder, Jr.

Fourth Circuit -- US v. Curtis Edmonds

No error in BIA finding that petitioner was member of a designated organization, as there is no burden on BIA to prove which faction petitioner was a part of.

Putting up posters and paying dues is enough.

Petitioner's general knowledge that the organization is violent suffices.


US v. Curtis Edmonds

Federal Circuit -- Conservation Force v. Kenneth Salazar

 Suit didn't qualify as a citizen suit under the Endangered Species Act, so no fees for Plaintiff.

Specific statutory duties that Agcy omitted weren't sufficient nonfeasance to trigger award of fees for citizen suit.

Much close parsing of the relevant statutes.

Conservation Force v. Kenneth Salazar

Tenth Circuit -- Clayton v. Jones

Where counsel tells client that he'll be home by Christmas with a guilty plea, and a life sentence results, and counsel then doesn't file a direct appeal after explicit instruction, it's ineffective assistance.

(Plaintiff has been imprisoned for 30 years.)

Remand so lower court can explain why it ordered withdrawal of plea as opposed to out of time appeal.

Clayton v. Jones

Ninth Circuit -- YVON WAGNER V. COUNTY OF MARICOPA

Reference to forced changing-of-clothes of mentally ill jail inmate should have been in for the truth of the matter asserted, not just for mental state.

Reference to pink underwear of inmates should have been allowed.

Barring doc from arguing that the experience killed the inmate was a correct application of Daubert, but he should have been allowed to say that it would have been stressful for him.

Court TKO'ing the plaintiff's rebuttal was uncool.

Dissent -

No offer of proof as to actual belief of victim means that it wasn't hearsay - victim might not have actually believed it.

State of mind exception to hearsay doesn't allow discussion of circumstances leading to the state of mind.

Doc's testimony would have been too speculative, given Daubert findings.

Not allowing the Plaintiff a rebuttal argument wasn't an abuse of discretion.

YVON WAGNER V. COUNTY OF MARICOPA

Ninth Circuit -- ESTATE OF HENRY BARABIN V. ASTENJOHNSON INC

Where expert was DQ'ed pretrial but then later allowed, a Daubert hearing should have been held before letting the expert go to the jury.

Concurrence: Yes, and also explain why evidence of collateral sources of income was excluded after widow claimed destitution.

Concurrence: Yes, but no need for a new trial.  Just have the Daubert hearing and take it from there.


ESTATE OF HENRY BARABIN V. ASTENJOHNSON INC

Seventh Circuit -- Iain Walker v. Norene Walker

District Court erred in saying that the family lived in Australia, and therefore in barring ICARA/Hague return of the children to the US.

State court judgment not a final determination for purposes of the Hague Convention.

Letter between the parents referencing custody should have been barred under FRE as an offer to settle.

Iain Walker v. Norene Walker

Sixth Circuit -- USA v. Real Prop. & Residence

Interlocutory sale of yacht during pendency of civil and criminal actions kosher.

USA v. Real Prop. & Residence

Sixth Circuit -- Debra Kohl v. USA

Testing IED's involves decisionmaking on an operational level, and is therefore within the discretionary activities exception to FTCA.

Debra Kohl v. USA

Test

Testing Facebook/Twitter restart.

End of day

Also decisions in 10th, 11th, and Federal Circ.  I'm at end of day, though.  Addio.

Ninth Circuit -- ALOE VERA OF AMERICA, INC. V. USA

Jurisdiction proper over matter corollary to bankruptcy proceeding.

"Anticipated" income can be included in the judgment despite statutory prohibition on unvested funds being considered.

ALOE VERA OF AMERICA, INC. V. USA

Ninth Circuit -- ROBERT SCHOLZ & CAROLYN SCHOLZ

A pending general investigation is not enough to trigger inquiry notice for the subject of unauthorized disclosures - the plaintiff needed a clearer sign that unauthorized disclosures had been made before the SOL clock starts.

Grant of immunity to govt for unauthorized disclosures of tax info would defeat the purpose of the statute.



ROBERT SCHOLZ & CAROLYN SCHOLZ V.

Eighth Circuit -- Ansu Abraham v. United States

No Padilla question, as the PSR said that there would be likely deportation, and deft reviewed the PSR.

Ansu Abraham  v.  United States

Sixth Circuit -- Coalition to Defend Affirmative Action v. Regents

State constitutional referendum mandating race-neutral admission unconstitutional, as it offends federal constitution.

[This summary prepared from the first paragraph, as it's a long read, and MB is in a hurry.]

Coalition to Defend Affirmative Action v. Regents

Sixth Circuit -- USA v. Sathon Evans

 Ohio 'assaulting a police officer' statute is a crime of violence for sentencing guidelines purposes.

Ohio drug sale statute that includes offering to sell qualifies under federal drug sale statute.  No circuit split for contrary holding in 5th Circuit, as intent to offer to sell is different from intent to sell.

USA v. Sathon Evans

Sixth Circuit -- Samuel Moreland v. Margaret Bradshaw

Death penalty habeus -

Sufficient evidence, eyewitnesses, etc.

No Due Process claim even absent AEDPA deference on competence of young witness.

State law barring expert witness from impugning accuracy of eyewitness doesn't rise to level of fundmenatal fairness.

Crime scene photos did not improperly sway judges - no ineffective assistance for failure to object.

Police testimony as to post-Miranda silence did not improperly sway panel.

Bench trial means that allowing prosc to use invocation as proof of sobriety didn't sway the verdict.  The judges would have not considered any inappropriate evidence.

No ineffective assistance in sentencing phase.


 Samuel Moreland v. Margaret Bradshaw

Fourth Circuit -- Sharon Burnette v. Helen Fahey

 Dissent from denial of en banc on issue of Due Process rights for parole denial.


Sharon Burnette v. Helen Fahey

Third Circuit -- In Re: Pharmacy Benefit

Dismissal of suit subsequent to order to arbitrate makes the arbitration order reviewable.

Order to compel arbitration was error, as litigation had been ongoing for more than ten months, and the equities of the case argue for waiver of right to arbitrate.


In Re: Pharmacy Benefit v.

Second Circuit -- McElwee v. County of Orange

ADA accommodation for autistic gentleman in work program -

1 - No issue of qualifying disability, as the conduct makes the plaintiff ineligible to be considered for the specialized program he is working with.

2 - Accommodations unreasonable as a matter of law.

McElwee v. County of Orange

Second Circuit -- United States v. Siddiqui

Presumption against extraterritoriality doesn't apply to criminal offenses, and this type of offense (shooting Americans) is prone to occurrence outside the US, so extraterritorial application is OK. 

Even in active theatres of war. 

This includes firearms offenses.

Documents planning mass destruction are in to show motive.

Competence to stand trial means that the decision to testify is competently made, even over defense counsel objection.  (Limited to facts of case - judge did not err in allowing.)

Unmirandized & medicated statements in as voluntary.

Terrorism sentencing bump properly  made.

United States v. Siddiqui

Interlocutory Lacuna Continues

This hiatus will last at least another week.  Miles to go before I sleep, and all that.

Lull Impending

OK, Global Legal Community, given that today was hugely unproductive, and I need the time to do some outlining, I'm officially declaring a weeklong lacuna for this blog, backdated to when I left off last Thursday.  As it happens, it's traditional to take a sabbatical stretch after 1500 opinions or so - give the elves in the server time to get out and stretch their legs, that kind of thing.

When we reboot at the end of the week, I'll post links to all of the opinions that dropped in the interval, so that the search function (see the box near the bottom of the page) will cover the opinions.  I may also do a quick tagging of the opinions to keep the categories somewhat comprehensive. (Though for the purposes of detrimental reliance, as legally unreliable as ever.)

Addio! 

Perhaps Monday

Global Legal Community - afraid that things will have to be pushed back another day, as TMB got back from the opera at 1AM, and this Malbec isn't going to drink itself.  Cheerio.

Today's Opinions Posted Tomorrow

If the crick don't rise.

Federal Circuit -- FORD-CLIFTON V. DEPT. OF VETERANS AFFAIRS

Board did not err in denying late pro se petition.

Board's dismissal under law of case was in fact dismissal for res judicata.

FORD-CLIFTON V. DEPT. OF VETERANS AFFAIRS

Tenth Circuit -- Cypert v. Independent School District

No procedural Due Process claim for dismissed employee.

No proof of discriminator or free speech retribution.

Cypert v. Independent School District

Ninth Circuit -- USA V. LILA RIZK

No error in admission of summary charts.

Appraiser had knowlege of ends of conspiracy.

Appraiser knew ends of false appraisals were frauds on bank.

No plain error in ordering restitution past the release of claims negotiated in the civil trial, but civil restitution should have been subtracted from criminal.

USA V. LILA RIZK

Ninth Circuit -- USA V. WILKES

Remand to determine if deft's witness should have been granted use immunity.

No Brady violation, as not material.

Denial of many prosc. misconduct claims.

Quid pro quo bribery and misrepresentation satisfy Skilling's narrowing of honest services.

Sufficient evidence?kosher jury instructions for money laundering.


USA V. WILKES

Eighth Circuit -- United States v. Brandon Bennett

 Drug sufficiently similar to drug on schedule to permit use of sentencing guideline.

United States v. Brandon Bennett

Fifth Circuit -- Rommel Griffin, Sr. v. United Parcel Service, Inc.

 Diabetic not disabled under the ADA.

Accommodation was reasonable.

Rommel Griffin, Sr. v. United Parcel Service, Inc.

Fifth Circuit -- USA v. Shawna Tickles

 Conduct predating the FSA but sentenced after the FSA is not sentenced according to the FSA.

Dissent: But it should be.

USA v. Shawna Tickles
USA v. Jabar Gibson

Fifth Circuit -- USA v. Roberto Zamora, et al

 Informant tip and surveillance information provided reasonable suspicion for traffic stop.

No error in denial of venue instruction. (Conspiracy)

Sufficient evidence on conspiracy - past owner of car was member, fingerprints and forensic evidence on notebook.

Sufficient evidence for use of a firearm in furtherance, as the gun was loaded.

No error in denial of mistrial after testimony that deft had a criminal history.

USA v. Roberto Zamora, et al

Second Circuit -- Gray v. Citigroup, Inc.

ERISA Administrator did not abuse discretion in including company stock as a retirement option.

No fiduciary obligation to disclose confidential information.

Concur/Dissent - No presumption of prudence means that there is an affirmative duty of communication - must disclose dangers to company.

Gray v. Citigroup, Inc.

Second Circuit -- Cunney v. Bd. of Trs. of Vill. of Grand View

Zoning regulation void for vagueness - no specific indication of measuring point for maximum height.

Not saved by core meaning.

Cunney v. Bd. of Trs. of Vill. of Grand View

Secind Circuit -- Gearren v. McGraw-Hill Cos., Inc.

Inclusion of employer stock in retirement plan options was kosher, as the corporate situation appeared less than dire.

Gearren v. McGraw-Hill Cos., Inc.

Federal Circuit -- SANOFI-AVENTIS V. APOTEX INC.

As prejudgment interest is a form of damages, contract between parties limiting damages limits interest.

District Court did not err in barring counterclaim.

SANOFI-AVENTIS V. APOTEX INC.

Eleventh Circuit -- Ehlen Floor Copvering, Inc., et al v. Innovative Pension Strategies

Preeemption by ERISA gives federal jurisdiction.

Where the parties agree that Section VI lists the services that are subject to mandatory arbitration, and there is no Section VI, there is no arbitration.

Ehlen Floor Copvering, Inc., et al v. Innovative Pension Strategies

Tenth Circuit -- Sorenson Communications, Inc. v. FCC

FCC ratemaking upheld as neither arbitrary nor capricious.

Sorenson Communications, Inc. v. FCC

Tenth Circuit -- United States v. Chavez

Anonymous tip provided sufficient reasonable suspicion for stop; information gained in Terry stop gave probable cause for arrest.

Sentencing Commission inclusion of attempted crimes as drug trafficking predicates not unconstitutional.

United States v. Chavez

Tenth Circuit -- United States v. Marrufo

Sentencing bump for using a firearm applies where the offense is hiding a firearm.


 United States v. Marrufo

Ninth Circuit -- DALE FOSSEN V. BLUE CROSS AND BLUE SHIELD OF

State health insurance law preempted.


DALE FOSSEN V. BLUE CROSS AND BLUE SHIELD OF

Ninth Circuit -- GARY SMALLWOOD V. ALLIED VAN LINES, INC.

Carmack Amendment bars arbitration clause, as interstate shipper has a right to choose forum.

GARY SMALLWOOD V. ALLIED VAN LINES, INC.