Seventh Circuit -- USA v. Bernard Foster

Conditional agreement to certain evidence does not waive objection to the material, once that objection has been clearly made.

Potential shift at the appeal stage in the basis for the objection from foundational to constitutional does not forfeit the argument on appeal.

Admission of CI statements not hearsay / didn't violate Confrontation Clause.

No abuse of discretion in denying a missing witness instruction where the prosecution allegedly kept the witness from testifying by intimidation/investigation.

Harmless error in FSA sentencing error, as court later said that it would have done the same anyway.

USA v. Bernard Foster

Seventh Circuit -- Marleen Laplant v. Northwestern Mutual

 Holder of an insurance annuity are not blocked from class action remedy by CAFA internal affairs provision.

Choice of law clauses in insurance contract cannot be invalidated by a claim that they are per se against the public policy of the issuing state.



Marleen Laplant v. Northwestern Mutual

Sixth Circuit -- Dixie Fuel Company, LLC v. Director, Office of Workers' Comp

ALJ erred in allowing single factor to prove diagnosis - all the evidence must be considered.

Dixie Fuel Company, LLC v. Director, Office of Workers' Comp

Sixth Circuit -- Jermaine Sutton v. Metropolitan Government of Nashville

No S1983 claim against a Terry stop when police officer called contact in cell phone left by perpetrator, then, using that information, detained/questioned petitioner at his place of work.

Terry stop should have ended when petitioner took out his own phone & showed to police.

When arrest was made after ID by eyewitness, subsequent S1983 claim challenging the arrest must plead some reason that the officer shoudl have disbelieved the eyewitness.

Forced removal from workplace escalated Terry stop to arrest.

No qualified immunity during duration of the Terry stop.

Jermaine Sutton v. Metropolitan Government of Nashville

Sixth Circuit -- USA v. Lavelle Parks

Penalty in statute after series of offenses applies to all offenses in the series.

No canon of lenity, as the statute is clear.

Plea was knowing and voluntary.

 USA v. Lavelle Parks

Fourth Circuit -- Antonia Rota-McLarty v. Santander Consumer USA, Incorporated

Interlocutory appeal under the Federal Arbitration Act -- jurisdiction through Commerce Clause - auto lending industry.

Integration clause binds, as the two agreements were part of the same transaction.


Where a contractual term exempts assignees from arbitration, but is conjoined with a list of qualifying circumstances, the term only affects assignees as described in those circumstances.

Default is distinct from waiver in arbitration law.

Given lack of delay and minimal use o the 'trial machinery', arbitration was not waived by default.



Antonia Rota-McLarty v. Santander Consumer USA, Incorporated

Second Circuit -- State of New York v. Shinnecock Indian Nation

Dissent from denial of en banc - Panel had held that when property claims arise only as a defense, tribes cannot remove state enforcement action to federal court.

State of New York v. Shinnecock Indian Nation

Federal Circuit -- SUPERIOR INDUSTRIES, LLC. V. THOR GLOBAL ENTERPRISES LTD.

Although the claims in the second suit were germane to the issues in the first suit, no issue preclusion under 8th Circuit law, as the second set of claims arose out of a different nucleus of operative facts. 

Claim met the lower threshold for patent pleading.

SUPERIOR INDUSTRIES, LLC. V. THOR GLOBAL ENTERPRISES LTD.

Federal Circuit -- REVISION MILITARY, INC. V. BALBOA MANUFACTURING CO.

Appropriate standard for patent injunctions is not 'clear likelihood of success' but that success is 'more likely than not.'

Prior art should have been used to inform the ordinary observer test.

REVISION MILITARY, INC. V. BALBOA MANUFACTURING CO.

DC Circuit -- Erie Brush & Manufacturing Corp. v. NLRB

A suggestion to mediate a claim doesn't per se break an impasse.

No substantial evidence for Board finding of impasse.




Erie Brush & Manufacturing Corp. v. NLRB

DC Circuit -- Northern Natural Gas Company v. FERC

Commission decision not to allow market rates upheld under Chevron.

Retroactive (to contracts currently awaiting completion of performance) application upheld, as petitioner didn't demonstrate actual reliance.


Northern Natural Gas Company v. FERC

Eleventh Circuit -- Roger Chavez v. Mercantil Commercebank, N.A.

Risk of loss on fraudulent money transfer did not pass to the customer, despite the statutory safe-harbor, as the agreed-upon procedures were insufficient. 

Roger Chavez v. Mercantil Commercebank, N.A.

Tenth Circuit -- Brown v. ScriptPro, LLC

Trial court did not err in granting summary judgment on FMLA unfair dismissal claim, as no rational factfinder could have found that the firing was for reasons other than the (legit) ones claimed.

Same for retribution claim.

No FLSA overtime violation when employee doesn't keep records in manner required by the company.

Brown v. ScriptPro, LLC

Tenth Circuit -- Buchheit v. Green

Petitioners claims barred by sovereign immunity.

No affirmative obligation on the courts to screen IFP petitions for merit. 

(Not moot, as capable of repetition etc, etc.)

Buchheit v. Green

Ninth Circuit -- USA V. KENIA MUNGUIA

Trial court erred in giving jury instruction that the meth statute scienter requirement was objective.  Statute is subjective, consideration must be given to limits of deft.

Concurrence: Speculative claims along these lines checked by FRE 403.


USA V. KENIA MUNGUIA

Ninth Circuit -- RICKY WAHCHUMWAH V. USA

No 4A violation in use of buttonhole A/V recorder by undercover agent.  Surveillance wasn't long enough to trigger Jones analysis.

Offering to sell eagle tail feathers is a lesser included offense within actually selling -- Blockberger requires that both offenses have an element exclusive to them.

Photos of birds not unduly prejudicial.

No Confrontation Clause issue in not allowing deft to confront tipper - the allegations weren't in for the truth of the matter asserted, they were just cited to prove legitimacy of the investigation.


RICKY WAHCHUMWAH V. USA

Ninth Circuit -- RICHARD STOKLEY V. CHARLES RYAN

Dissent from denial of death penalty en banc --  Potential Eddings errors (any possible mitigation is relevant to the sentencing phase, not just those mitigating factors with a causal nexus to the crime.)


RICHARD STOKLEY V. CHARLES RYAN

[Thou shalt not kill - MB]

Seventh Circuit -- Ping Zheng v. Eric H. Holder, Jr.

Subsequent bearing of two coldren doesn't justify reopening of immigration case, as it is a change in personal circumstances, not those in the foreign country -- despite claims of forced sterilization of those who exceed one child per household.


Ping Zheng v. Eric H. Holder, Jr.

Sixth Circuit -- In re: Charles Kassicieh

 Fees owed to a guadian ad litem are a 'domestic support obligations' and therefore non-dischargeable debt.

 In re: Charles Kassicieh

Third Circuit -- Gen Lin v. Attorney General USA

No error in BIA not reopening immigration claim -- no provenance for the newly discovered documents means that there was no prima facie case; also valid procedural bar to reconsideration

Gen Lin v. Attorney General USA

Second Circuit -- Kachalsky et al. v. Cty. of Westchester et al.

New York 'proper cause' requirement to carry handgun doesn't offend 2A, 14A.

Gist of McDonald is guns at home -- carrying is a different calculus.

Quasi-strict scrutiny.

 

Kachalsky et al. v. Cty. of Westchester et al.

First Circuit -- Manganella v. Evanston Insurance Company

Arbitration judgment bars claims in a later court action under collateral estoppel, as the legal question is similar to the company policy question decided. 

For issue preclusion to bind, the issues aren't limited to those necessary to the disposition of the first case case, but to the actual, enunciated holding of the first case.


Manganella v. Evanston Insurance Company

First Circuit -- US v. Medina-Villegas

Trial court sufficiently explained the reasons for the sentence.

Life without possibility of release not substantively unreasonable when within guidelines ranges.

Law of the case bars deft from raising waived double jeopardy claim.

US v. Medina-Villegas

First Circuit -- US v. Roszkowski

Trial court did not abuse discretion in barring CI from testifying to prove entrapment -- deft had to meet an 'entry level burden' of production.

 Discharge of weapon during arrest isn't an unrelated bad act for purposes of FRE when charge is weapons possession - part & parcel.

Deft talking about hollowpoint bullets durong taped phone call not a a bad act, just part of the narrative of the crime.

Federal gun possession statutes not rendered unconstitutional by Sibelius under insufficient-commerce-for-the-commerce-clause theory.

 US v. Roszkowski

Ninth Circuit -- USA V. LOMANDO SCOTT

When deft raises argument justifying dismissal but doesn't ask for the dismissal, deft does not waive the challenge.

Gov't sufficiently discussed automobile exception 4A theory before magistrate judge - not waived.

Automobile exception justified where deft was going in and out of the car prior to the search.

Concur in J:

Yes, but only because the lower courts never ruled clearly on the question of waiver.

USA V. LOMANDO SCOTT

Ninth Circuit -- MOUNT HOPE CHURCH V. BASH BACK!

Court can't award costs and fees under 45(c)1 for a bad subpoena absent bad faith, facially defective instrument, or significant cost to injured parties.


MOUNT HOPE CHURCH V. BASH BACK!

Eighth Circuit -- Leslie Montgomery v. Kyle Havner

Telephoning a supervisor to question a 10 minute variance in clockout time isn't a sufficient predicate for a FLSA retaliation claim.

 Leslie Montgomery  v.  Kyle Havner

Eighth Circuit -- United States v. Levonia T. Grey

Two eyewitnesses can be enough to establish illicit possession of a firearm.

United States v. Levonia T. Grey



 

Eighth Circuit -- United States v. Scott Boyle

Where jury convicted on one of two possible theories, and there was no explicit instruction that one theory was correct and the other not, their verdict must still be presumed to be on the legit theory if the illicit theory was later held to lack sufficient evidence.

No double jeopardy where the second theory is distinct.

Not showing explicit images to the audience isn't a closing of the trial.

Sufficient evidence.

United States v. Scott Boyle

Eighth Circuit -- United States v. Mark Shore

Uncharged bad acts for purposes of FRE 404 are in fact charged acts if they happened during the pendency of an alleged conspiracy.

Deft's admission during the search that he was unemployed, even though not disclosed pretrial, couldn't have swayed the verdict - no plain error in allowing.

Prosc witness calling heroin very dangerous didn't sway the trial.

Acknowledging the validity of the warrant doesn't close the door to prosc introducing CI testimony outside the confrontation clause if the deft is alleging inappropriate targeting in general by law enforcement.

Jury instruction didn't improperly track prosc witness testimony.

No plain error in sentencing.

United States  v.  Mark Shore

Eighth Circuit -- United States v. Damon LaRoche

Possible error in imposing a sentencing bump for using a 'dangerous weapon' when the deft bit someone was harmless, as the judge said that he would sentence in that range anyway.

United States  v.  Damon LaRoche

Seventh Circuit -- Hafsa Shaikh v. Eric H. Holder, Jr.

Asylum denial upheld - lower court's finding that the reason for persecution was not primarily political doesn't mean that the lower statutory requirement (one of the central factors) wasn;t met as well.
 
Hafsa Shaikh v. Eric H. Holder, Jr.

Seventh Circuit -- Jay Embry v. City of Calumet City

Supervisor of Streets and Alleys is a patronage job, as it relates to policymaking.  (Largely due to the size of the department.)  S1983 suit TKO'd.

Jay Embry v. City of Calumet City

Third Circuit -- In Re: Arthur Baldwin, et al v.

Mandamus denied for trial judge ruling limiting each side to 7.5h for presentation of evidence.  Collateral interlocutory appeal TKO'd earlier.  Issue for direct appeal.


In Re: Arthur Baldwin, et al

Federal Circuit -- EPLUS, INC. V. LAWSON SOFTWARE, INC.

Claims of indefiniteness not waived when denied in liminal motion and not referred to at trial or in JMOL.

For indefiniteness - the description must be in the terms, not discoverable from the terms.

Jury can rely on plain and ordinary meaning absent limiting construction.

District court did not err in enjoining the servicing of products sold before the injunction.

No abuse of discretion in excluding expert.


EPLUS, INC. V. LAWSON SOFTWARE, INC.

DC Circuit -- SFO Good-Nite Inn, LLC v. NLRB

NLRB did not err in ruling that where the unfair labor practice is directly tied to the taint on the decert petition (vacation pay, termination of stalwarts), no nexus between employer conduct and employee disaffection need be proven.  Per se categories can establish.


SFO Good-Nite Inn, LLC v. NLRB

Eleventh Circuit -- Herbert Rozier v. USA

2255 Collateral attack on sentence not allowed, as there was no change in the law since the sentencing.  Scotus in the meantime held that the Florida statute wasn't an ACCA predicate, but the sentencing was under the residual clause, which has a different predicate.

Dissent: Too fine a point.  Great Writ is a great writ.

Herbert Rozier v. USA

Eleventh Circuit -- Phillip C., et al v. Jefferson County Board of Education

Agency had the authority to promulgate regulation requiring state boards of education to reimburse parents for independent education of disabled children.

Inter alia, no barking dog.

Phillip C., et al v. Jefferson County Board of Education

Ninth Circuit -- USA V. DALE MANNING

Sentencing bump for deft's Obstruction of Justice conviction good, despite the claim that he was obstructing them with reference to another offense.  Materiality derives from interference with investigation (circuit split flagged), and deft had requisite intent.


USA V. DALE MANNING

Ninth Circuit -- MADERO POUNCIL V. JAMES TILTON

Petitioner claims that lack of conjugal visits violate RILUPA -- issue is timeliness of claim.  Claim is good, as the denial of application for the second wife isn't part of the same pattern/practice as the denial of the first wife, but rather a discrete act.

MADERO POUNCIL V. JAMES TILTON

Ninth Circuit -- SAMUEL STEPHENS, JR. V. U.S. RAILROAD RETIREMENT BOARD

Short periods of menial work should not have been grounds for denial of Railroad disability benefits.

Dissent: Yes, they should - ix nay on the enovoday.


SAMUEL STEPHENS, JR. V. U.S. RAILROAD RETIREMENT BOARD

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