Fourth Circuit -- US v. Deshawn Greene

US v. Deshawn Greene

Fourth Circuit -- US v. Saraeun Min

US v. Saraeun Min

Fourth Circuit -- US v. Giuseppe Pileggi

US v. Giuseppe Pileggi

Fourth Circuit -- US v. Prentiss Watson

US v. Prentiss Watson

Second Circuit -- Swartz v. Insogna

Swartz v. Insogna

First Circuit -- Beyond Nuclear v. US Nuclear Regulatory Commission

Beyond Nuclear v. US Nuclear Regulatory Commission 

First Circuit -- Knowlton v. Shaw

Knowlton v. Shaw 

First Circuit -- Martinez Lopez v. Holder

Martinez Lopez v. Holder 

First Circuit -- Murray v. US

 Murray v. US 

First Circuit -- Union de Empleados de Muelles v. UBS Financial Services Inc.

Union de Empleados de Muelles v. UBS Financial Services Inc. 

Hiatus

MB reluctantly reports that due to an unfortunate, somewhat Newtonian, encounter between his bicycle and a taxicab door, the blog will likely be inactive until Monday.  A day later, the only lingering effects seem to be  damage to the knitted gloves and the electronics that were in the bag, but the loss of the latter is proving somewhat problematic.

People of the legal blogosphere, I shall return.

Yr. Obt. Svt.,

MB

Nnth Circuit -- USA V. CHARLES YI

As deft commented on the likelihood of the dangerous compound being in the building the first time that he walked through it, no error in the court's willful blindness instruction.

No error in willful blindness instruction referencing simple carelessness.

No error in imposing sentencing bump for risk of harm to unprotected workmen.

As deft directed the renovations, and wasn't just the check signer, no error in imposition of leader sentencing bump.

USA V. CHARLES YI

Ninth Circuit -- ERIC PETZSCHKE V. CENTURY ALUMINUM COMPANY

Tracing of shares to specific issue doesn't state a claim where aftermarket shares were purchased from a company in a de facto joint venture with the issuing entity -- the company might have had other holdings of the stock.

Traceability speaks to statutory standing under S11, not Article III standing.

ERIC PETZSCHKE V. CENTURY ALUMINUM COMPANY

Ninth Circuit -- FREEMAN INVESTMENTS, L.P. V. PACIFIC LIFE INSURANCE COMPANY

Exlcusive federal jurisdiction over securities fraud class-actions does not bar state suit where the plaintiff is arguing a point of contract interpretation and good faith/fair dealing, and not scienter for fraud.

Claim was in connection with the purchase or sale of securities, as the insurer used the income from policyholders to purchase securities.

Dismissal of class action with prejudice was error if individual claims were viable.

FREEMAN INVESTMENTS, L.P. V. PACIFIC LIFE INSURANCE COMPANY

Ninth Circuit -- USA V. ROBERT PLEASANT

As Petitioner was sentenced under the Career Offender provisions of the drug law subsequently amended by the Fair Sentencing Act, the sentence was based on the amended provision despite a reference in the plea agreement to a non-amended portion of the Act.

The reference to the non-amended provision, however, establishes it as the applicable range as distinct from the agreed-upon range, foreclosing any revisiting of the sentence, as the applicable range wasn't amended.

USA V. ROBERT PLEASANT

Eighth Circuit -- RaShina Young v. Michael J. Astrue

ALJ developed record sufficiently by considering skills generally needed for the task without reference to findings of specific injuries and incapacities of Petitioner.

Dissent: Nope.


RaShina Young  v.  Michael J. Astrue

Eighth Circuit -- Dennis Siegel v. Connecticut General Life Ins.

Claim fiduciary appointment was appropriately executed by the terms of the plan.

Administrator did not abuse discretion in denying benefits absent proof that depression had disabled the claimant.

As there was no material evidence of bias, court did not abuse discretion in denying deposition of plan expert.

Dennis Siegel  v.  Connecticut General Life Ins.

Seventh Circuit -- Peter Poole, III v. Debbie Issacs

[This case is listed as posting today,but in fact was posted and summarized a few days ago.]

Seventh Circuit -- Neil Aslin v. Financial Industry

As agency designation of broker as being from a restricted firm  is no longer in force, the claim is moot.

No reasonable expectation that this plaintiff will be subject to the same designation, so the situation is not capable of repetition yet evading review.

Neil Aslin v. Financial Industry

Sixth Circuit -- Sheryl Taylor v. Timothy Geithner

Congress has not explicitly waived sovereign immunity for Title VII Breach of Settlement claims -- relevant administrative regulation does not specify any Article III remedy.

Fifty-two job applications (denied) coeval with the protected activity is sufficient to create a justiciable issue of retaliation.

Concur/dissent - No proof that plaintiff was qualified for jobs or suffered harm by the denial, no hard proof of adverse action within time period.  Temporal proximity alone not enough to establish causation.


Sheryl Taylor v. Timothy Geithner

Fourth Circuit -- US v. Prentiss Watson

Three hour warant-less detention in convenience store after protective sweep while police waited for warrant was a violation of 4A.

As there was no break in the causal chain from the illegal arrest, Mirandized statements should have been excluded. 

Not harmless.

Dissent: Detention was reasonable under Summers.


US v. Prentiss Watson

Fourth Circuit -- US v. Giuseppe Pileggi

Where appeals court vacates the sentence but not the restitution lower court normally does not have jurisdiction to alter the restitution amount.

As the government had means and incentive to contest restitution on appeal, restitution cannot be adjusted on remand absent instructions from the court of appeals.

Concurrence in J: General remand allows general revision of sentence, this was a specific remand.

US v. Giuseppe Pileggi

First Circuit -- Wu v. Holder

Ineffective Assistance and Due Process claims waived for not being raised during administrative proceeding.

As regulation at time of letter's receipt held that date-stamp was sufficient proof of time of receipt, and petitioner has not offered sufficient proof to establish a claim of clerical mistake, date-stamp establishes claim as untimely.

Wu v. Holder

Sixth Circuit -- USA v. Bryan Ross

Given prior abuse of attorney process and prior colloquy, trial court correctly allowed deft to proceed pro se after minimal colloquy.

Deft has a constitutional, non-waiveable right to counsel at competency hearing, even where court has legitimately allowed him or her to proceed pro se to that point.

Standby counsel did not provide meaningful adversarial testing of the case against deft.

As competency hearing is a critical stage, vacation and reversal is required for denial of counsel.

No abuse of discretion in allowing polygraph agreement into evidence.

No Speedy Trial Act claim, as not in bad faith.

No abuse of process in denial of subpoena

A few other things, including a 

Dissent.



USA v. Bryan Ross

1500

1500 Cases

Well, somewhere around the Ninth Circuit, we passed 1,500 posts.  Taking into account the occasional announcement post and the fact that the blog started off as a one-page-per-day operation, it seems appropriate to mark the milestone here.  Off to secure a bottle of finest plonk to celebrate.

-MB

Federal Circuit -- ABRAMS V. SOCIAL SECURITY ADMIN.

Chevron deference to agency determination that not implementing instructions as to case management is good cause sufficient for ALJ's removal.

Substantial evidence for agency's so finding when ALJ didn't speed up docket after instructed to do so in email.

ABRAMS V. SOCIAL SECURITY ADMIN.

DC Circuit -- Sharon Rollins v. Wackenhut Services, Inc.

Issuance of gun to employee was not enough to defeat per se rule that suicide is an intervening cause sufficient to bar negligence liability - trial court correctly dismissed claim sua sponte.

Certification of question to DC Ct. App. inappropriate.

Leave to amend properly denied, as request was made in the alternative at the end of another motion, and no copy of the proposed amendment was attached to the motion.

No error in denial with prejudice, given unlikely nature of claim.

Concurrence - many thoughts on 12(b)(6), inter alia,  if dismissal of claim is on motion, plaintiff has leave to amend.


Sharon Rollins v. Wackenhut Services, Inc.

DC Circuit -- Vernon Earle v. DC

S1983 Vienna Convention consular notification claim accrues with arrest.  It is not ongoing, neither is it tolled on the basis of fraudulent concealment of the right.

Vernon Earle v. DC

DC Circuit -- Black Beauty Coal Company v. MSHR

Combustible materials and a burning smell in the mine were enough for the violation - no need for actual combustion or proof that the materials had been there awhile.

Circumstantial evidence can be proof of inadequate training.

High negligence finding supported by substantial evidence.

Black Beauty Coal Company v. MSHR

DC Circuit -- USA v. Ernest Moore

No plain error in trial judge's mis-description of elements of the crime during plea colloquy, as deft did not establish harm from the error to substantial rights.

Deft's dispute as to priors in the PSR was waived at sentencing, despite lack of any strategic reason for him to have done so.

Excision of language from plea agreement granting restitution to all claimants does not mean that deft does not consent to judge ordering restitution to all claimants.

Order of judgement not citing plea agreement as basis for restitution was properly made under authority granted in plea agreement.

Counsel's apparent unfamiliarity with sentencing guidelines insufficient to establish ineffective assistance.

USA v. Ernest Moore

Eleventh Circuit -- Florida Transportation Services, Inc. v. Miami-Dade County

In-state company has sufficient prudential standing to challenge exclusionary licensing scheme under the Dormant Commerce Clause.

Local permitting scheme that excludes new entrants to the market plainly imposes a burden on interstate commerce, regardless of where the existing and potential entrants to the market are incorporated.

No local benefit rationally furthered by the licensing scheme.

Market participant exception doesn't apply, as the locality doesn't provide stevedoring services.

Lost profits properly awarded, given likelihood of licensure and proven willingness of market participants to do business with new entrants to the market.

Florida Transportation Services, Inc. v. Miami-Dade County

Eleventh Circuit -- Ronald Bert Smith v. Commissioner, Alabama Department of Corrections

Filing of Habeas petition without fee does not toll the AEDPA one year clock.

Where in-state counsel is possibly incompetent, lack of pro hac vice status for out-state-counsel does not allow court to find abandonment sufficient to equitably toll the AEDPA deadline.

Ronald Bert Smith v. Commissioner, Alabama Department of Corrections

Tenth Circuit -- Kirch v. Embarq Management CO

There is no aiding and abetting liability under ECPA.

As an ISP generally has access to its customers' data, there can be no improper acquisition of the contents of  that data under ECPA.

Kirch v. Embarq Management CO

Tenth Circuit -- United States v. Washington

Oklahoma juvenile conviction for pointing weapon dismissed after deft served probation functions as a valid ACCA predicate.

United States v. Washington

Tenth Circuit -- Jefferson County School v. Elizabeth E.

For a expenses at a second school to be reimbursable under IDEA, courts merely consider whether specifically designed instruction is provided and whether services are provided in order to help the child benefit from those services.

Exigent admission to inpatient medical facility without notice to the school district does not violate 10-day notice provision.

Where the District does not inform the parents of intent to evaluate, no violation of the statute in not making the child available for evaluation.

Jefferson County School v. Elizabeth E.

Ninth Circuit -- ABDUL ALOCOZY V. USCIS

When government allows alien to avoid deportation for a criminal offense, this does not operate as a waiver barring consideration of the offense in subsequent naturalization proceedings.

Retroactive cancellation of the statutory provision allowing government to waive deportation does not mean that alines who utilized it had a valid expectation that it would bar consideration of the matter during naturalization proceedings.

ABDUL ALOCOZY V. USCIS

Ninth Circuit -- USA V. JASON LEE

Guilty plea where the charging document articulates several theories of the crime, only some of which establish it as a predicate for a subsequent sentencing, is insufficient to establish the predicate under modified categorical review.

Where statute allows for reduced sentence where certain findings are made - findings that would remove the conviction as a predicate - and the reduced sentence is made without findings on the record, the reduced sentence in itself is insufficient to disqualify the conviction as a valid predicate.

No error in denial of entrapment instruction.

USA V. JASON LEE

Ninth Circuit -- OSCAR ROJAS V. ERIC H. HOLDER JR.

Immigration judge properly considered evidence in pending criminal trial of petitioner, as it was probative.

No denial of Due Process in the criminal action from IJ's consideration.

OSCAR ROJAS V. ERIC H. HOLDER JR.

Eighth Circuit -- United States v. Derek Allmon, Sr.

Sentencing court cannot sua sponte impose a post-sentencing restriction on prisoner communication.  (Barring communication with everyone except counsel of record.)

United States  v.  Derek Allmon, Sr.

Eighth Circuit -- M.M. v. Dist 0001 Lancaster Co. School

Administrative finding that a certain educational tactic was counterproductive is not in itself proof that the school district's educational plan to the contrary was not in good faith.

Notice of meetings and chance to give views was sufficiently meaningful participation as required by statute.

M.M.  v.  Dist 0001 Lancaster Co. School

Seventh Circuit -- USA v. Adebisi Adigun

Even absent colloquy informing deft of the waiver, a guilty plea without a written agreement preserving certain grounds for appeal operates as an unconditional guilty plea waiving all ex ante non-jurisdictional grounds for appeal.

This is jurisdictional - open question as to whether government can waive it, but as govt hasn't in this case, court has no subject matter jurisdiction to hear a suppression challenge.

Courts reasons for denying downward variance make erroneous imposition of old statutory minimum sentence harmless error.

USA v. Adebisi Adigun

Seventh Circuit -- Peter Poole, III v. Debbie Issacs

Imposition of a modest fee for medical services does not violate the 8th Amendment.

Peter Poole, III v. Debbie Issacs

Fourth Circuit -- US v. Gary Gillion

Proffer agreement that by its terms contemplates trial binds post-indictment, requiring deft to take polygraph.

Statements were hamless anyway.

Interposing a similarly-named shell corporation between customer and employer for purposes of siphoning profits is fraud on the employer; the employer has a property interest.

Misstatements (forged signatures, use of certain kinds of checks) were sufficiently material.

Mailings from the shell corporation sufficient for mail fraud trigger.

US v. Gary Gillion

Fourth Circuit -- Beach First National Bancshares v. Michael Anderson

Bankruptcy trustee of parent corporation has standing for breach of fiduciary duty suit against directors of subsidiary bank taken over by the FDIC only with respect to a real estate transaction that affected the rights of the parent corporation.

Beach First National Bancshares v. Michael Anderson

Federal Circuit -- CW ZUMBIEL V. KAPPOS

Adding a finger flap to a carton was a sufficiently obvious move, regardless of how the carton was intended to be carried, especially as there's no particular reason that the carton should be carried in that way.

Adding flap dispenser to carton similarly obvious.

Preamble to claim appropriately considered.

Dissent: It's a box with holes in it at obviously logical points.

CW ZUMBIEL V. KAPPOS

Tenth Circuit -- Blehm v. Jacobs

When assessing substantial similarity in a copyright action, specific protectible elements rather than general assessments must be considered.

Blehm v. Jacobs

Tenth Circuit -- Hill v. Vanderbilt Capital Advisors

Dismissal/remand for lack of standing is at least colorably a dismissal for lack of subject matter jurisdiction and therefore unreviewable.

Post-removal addition of a uniquely federal cause of action does not allow for review of subsequent unreviewable remand.

Exception to nonreviewability of remand requires divisible orders - elements of a single claim dismissed by a single order cannot be separately assessed.

Hill v. Vanderbilt Capital Advisors

Ninth Circuit -- KEVIN COOPER V. MICHAEL RAMOS

Collateral challenge to conviction under S1983 by an as-applied challenge to state DNA testing statute is barred under Rooker-Feldman as a de facto federal review of (not appealed) state court judgement.

Dismissal without prejudice as to not-barred claims but silent as to leave to amend is sufficiently final for appeal.

No error in denial of leave to amend, as the claim was not salvageable.


KEVIN COOPER V. MICHAEL RAMOS

Seventh Circuit -- USA v. Fairly Earls

Limiting instruction was sufficient to allow evidence of potential state sentence for unrelated bad acts, as it was evidence of deft's motive to flee with fake passport data.

Police ID at trial of deft in photographs was harmless error.

For sentencing purposes, underlying conviction in the relevant section need not have already been obtained.  Language suggesting otherwise is surplussage because of  the cross-reference.

USA v. Fairly Earls

Seventh Circuit -- Ohio Chemical Servic v. Falconbridg

A company's agreement with a distributor that the distributor should reduce its own production levels of the material being distributed is not price fixing and therefore not a per se violation of the Sherman Act.

Trial court does not need to provide extensive reasoning for holding that antitrust case will be decided according to rule of reason rather than per se.


Ohio Chemical Servic v. Falconbridg

Seventh Circuit -- Ronald Slade v. Board of School Dir

Negligence is not a sufficient basis for a S1983 suit.

Plaintiff's enticement claims properly dismissed before trial.

Ronald Slade v. Board of School Dir

Seventh Circuit -- Arthur Lewis, Jr. v. City of Chicago

(b)(2) Class action intervention untimely subsequent to entry of final judgement where the potential intervenors had notice that they were not within the class as amended and the final relief was reasonable with respect to those affected.

Arthur Lewis, Jr. v. City of Chicago

Sixth Circuit -- In re: Joel DeGroot

Bankruptcy Court has discretion under statute to consider an unscheduled asset abandoned to a (non-creditor) third party.

 In re: Joel DeGroot

Second Circuit -- United States v. Metter

US Attorney's certification to an interlocutory appeal on suppression is conclusive proof of materiality and a sufficient showing as to good faith.

United States v. Metter

First Circuit -- Marek v. State of Rhode Island

For a Takings Clause action to be ripe, plaintiff must have exhausted all state court remedies for just compensation.

Undeveloped mechanisms for state court remedies are not therefore futile.

Road expansion scheme tied to cancelled plans for residential development cannot be reviewed as capable of repetition yet evading review.

Marek v. State of Rhode Island

First Circuit -- Awuah v. Coverall North America, Inc.

Neither Federal not Massachusetts law requires any heightened notice for arbitration clauses in commercial agreements.

Awuah v. Coverall North America, Inc.

Tenth Circuit -- Frontier State Bank Oklahoma v. FDIC

Statute bars Article III review of FDIC minimum capital requirements, as there are no discoverable standards to assess them.

Board & ALJ skepticism as to revenue model was reasonable.

FDIC's requirement that bank both increase capital and decrease risk was reasonable.

Agency decisions on liquidity reasonable, as the substantial evidence supporting the agency's conclusions can be a macro assessment of total risk as opposed to assessment of individual strategies.

Given findings on capital, liquidity and risk, per se substantial evidence for mismanagement.

Frontier State Bank Oklahoma v. FDIC

Tenth Circuit -- Barlow, Jr. v. C.R. England Inc.

No prima facie case for race-based workplace discrimination, given lack of evidence of racially charged situations.

Given corporate shell created by worker, service-industry worker properly characterized as independent contractor.

Retaliatory firing presents genuine issue, as the firing happened around the one-year anniversary of the claim/start of benefits, triggering internal review.

Barlow, Jr. v. C.R. England Inc.

Ninth Circuit -- GRISELDA SANCHEZ V. ERIC H. HOLDER JR.

Admission of statements in agency record of interrogation not fundamentally unfair/hearsay, as the FRE don't apply to immigration proceedings.

As petitioner was attempting to aid another's illegal passage into the country, mens rea requirement as to her own passage is established.

GRISELDA SANCHEZ V. ERIC H. HOLDER JR.

Ninth Circuit -- VERONICA GUTIERREZ V. WELLS FARGO BANK, N.A.

No error in denying arbitration, as demand for arbitration was not filed until well into the pendency of the case and subsequent to the Scotus decision requiring such requests to be honored.

State good faith requirement is preempted by federal statute allowing banks to set posting order for transactions.

State law prohibiting fraudulent or misleading characterizations as to transaction posting order is not preempted.

No clear error as to standing, class certification. 

Sufficient proof of misleading statements.

VERONICA GUTIERREZ V. WELLS FARGO BANK, N.A.

Ninth Circuit -- REDOIL V. EPA

Deference to agency finding resolving statutory ambiguity as to the classes of vessels to which the statute applies.

Agency's interpretation of own regulations legally permissible under Auer.

REDOIL V. EPA

Ninth Circuit -- USA V. MARK PHILLIPS

Plain error in trial court holding that buying a watch through the mail with the loot is sufficient to trigger the mail fraud statute.

As the money laundering was sufficiently separate from the fraud, there is no merger problem that would require the court to hold that the money laundering was conducted with profits as opposed to gross proceeds of fraud.  (The funds can be characterized one way for one underlying offense, and the other for the other.)

No plain error in prosc's description in closing of deft's testimony as lies.

No plain error in sentencing instruction that deft not frequent areas where illegal drugs are used or sold - condition implies a mens rea element.

Where government seeks only monetary forfeiture, no jury/Apprendi requirement - court below erred in denying.

USA V. MARK PHILLIPS

Ninth Circuit -- LAURA ARTEAGA-DE ALVAREZ V. ERIC H. HOLDER JR.

Inconsistency with a prior immigration adjudication does not present a Due Process claim sufficient for jurisdiction.  Jurisdiction is proper only for errors of law.

No Chevron deference to agency finding, as the principle is not in any published adjudication.

Alternative means of immigration is not a categorical bar to hardship defense.

Concur/Dissent - No jurisdiction over the claimed error of law, as it's actually a factual holding.


LAURA ARTEAGA-DE ALVAREZ V. ERIC H. HOLDER JR.

Eighth Circuit -- Dairy Farmers of America v. Bassett & Walker International

Communication by phone, email, and fax insufficient to establish the transaction of business under state long-arm statute.

Given the totality of the factors, insufficient minimum contacts to satisfy Due Process.

Dairy Farmers of America  v.  Bassett & Walker International

Seventh Circuit -- Shontay Humphries v. Milwaukee

County official who denies license based on state administrative finding is not subject to S1983 liability for not investigating the facts of the state finding.

Shontay Humphries v. Milwaukee

Seventh Circuit -- Douglas Richards v. NLRB

Where plaintiff seeking relief before an agency claims both personal harms and harms to persons not before the Board, complete agency relief to the plaintiffs removes standing for purposes of the appeal without regard to the relief (or lack of relief) granted to those unnamed others.

Charging Party status before the NLRB does not change this.

 Douglas Richards v. NLRB

Seventh Circuit -- Appleton Papers Inco v. EPA

No clear error in denying FOIA request under work product exception where the documents are a mix of relevant facts and protected opinions.

Work product is distinct from attorney/client -- partial disclosure/waiver does operate as a waiver for the whole.

Appleton Papers Inco v. EPA

Sixth Circuit -- USA v. Mario Washington

Sufficient evidence for the conviction.

No error in exclusion of witness conviction for theft of utility services, as not categorically a crimen falsi.

Jury questions on collateral matters appropriately unanswered.

Sentencing bump for obstruction of justice appropriately & constitutionally imposed after deft, in testimony at trial, denied committing the crime. 

Permanent injury to victim sentencing bump correcty imposed.

USA v. Mario Washington

Sixth Circuit -- USA v. Solomon Carpenter

'Where the condition of supervised release says that the prisoner "shall" participate in a drug treatment program, it is not an impermissible delegation of authority to the probation officer. 

USA v. Solomon Carpenter

Fourth Circuit -- Philip Decohen v. Capital One, N.A.

Where local lender originates loan before transferring it to a national bank, state regulatory statutes are not preempted by federal loan origination statutes.

No field preemption for debt cancellation agreements.

Reference to state statute in loan agreement elected that state's law, and the lender is therefore bound by another term of the statute.

Philip Decohen v. Capital One, N.A.

Second Circuit -- Langrock Sperry v. Citigroup

District court cannot impose fees as sanction absent finding of bad faith.

Due Process requires that imposition of fees requires notice and an opportunity to be heard.

Langrock Sperry v. Citigroup

Second Circuit -- MacDermid, Inc. v. Deiter

Use of a computer server in Connecticut suffices for jurisdiction in CT by long-arm statute.

Servers are computers.

Deft knew the location of the company servers, therefore there was sufficient purposeful  availment for Due Process.

MacDermid, Inc. v. Deiter

First Circuit -- Bachorz v. Miller-Forslund

Conduct of parties evinced waiver of lease requirement that written consent be obtained prior to subleasing.

Statutory violations by landlord too trivial to affect the equities of the agreement.

Bachorz v. Miller-Forslund

No Published Opinons Today

As of 2:45PM ET.

Federal Circuit -- SLESINGER V. DISNEY ENTERPRISES

As earlier court had held that plaintiff had assigned all IP rights, collateral estoppel bars the suit.

SLESINGER V. DISNEY ENTERPRISES