Seventh Circuit -- http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=12-1254_002.pdf

35B motion converted to Habeas sua sponte.

Not second/successive, as claim did not become ripe until gov't incorrectly made 35B motion.

BUT time-barred under one-year rule.

USA v. Khaled Obeid

Seventh Circuit -- Northeastern Rural E v. Wabash

Electricity provision contract presents question of state law, not federal law.

Northeastern Rural E v. Wabash 

Fifth Circuit -- USA v. Mark Woerner

Good faith exception applies to warrant obtained on the basis of deft statements later determined to be the fruit of an illegal search.  Case by case, not categorical.

Sufficient evidence, pr0n counts not multiplicitous.

USA v. Mark Woerner

Fifth Circuit -- Mid-Continent Casualty Co. v. Eland Energy Inc.

Insurer does not breach duty of good faith and fair dealing by settling third party claims on the side to the limit of coverage, despite contractual duty to defend.

Choice of law assigned under interest analysis. Texas wins.

Misrepresentations were not a 'producing cause' of the allegedly tortious settlement offers.

Mid-Continent Casualty Co. v. Eland Energy Inc., e

Third Circuit -- Barry Belmont v. MB Investment Partners, Inc.

Securities Fraud -

Reckless acts by controlling persons do not establish 20a liability.

No negligent supervision by Board, as not foreseeable, not really managers.

No 10b5 claim as insufficient scienter.

(again, very quick skim based on what catches our eye as we scroll.  MB)

Barry Belmont v. MB Investment Partners, Inc.

Second Circuit -- United States v. Wilson

Where the deft got the Social Security number nonfraudulently but updated it fraudulently, the Number was not acquired fraudulently.

United States v. Wilson

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

Even where an investor exerts discretion in how fund invests and intends that the fund invest in a certain (ill-fated) endeavour, they are not customers of the endeavour, as they themselves transacted no business with it.

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

Blog Reset

Cutting the Gordian knot of opinion backlog.  MB is hitting the "reset button" and, tomorrow, will resume publishing same-day summaries for all Circuits.

MB

Seventh Circuit -- William Grote, III v. Kathleen Sebelius

Granting of prelim injunction in health care mandate case, brief per curiam.

Long dissent -- closely held corporation is still a fundamentally commercial entity.

William Grote, III v. Kathleen Sebelius

Seventh Circuit -- Lock Realty Corporat v. U.S. Health, LP

Despite TKO of sole expert under Daubert, no error in award of liquidated damages even given denial of earlier motion for further discovery.  [Maybe.]

Attorney affidavit as to billing properly admitted despite awkward phrasing.

Lock Realty Corporat v. U.S. Health, LP

Seventh Circuit -- James Wells v. Jeff Coker

No preclusion/estoppel in subsequent S1983 suit.from earlier Criminal plea.  Potentially multiple bases for plea.

James Wells v. Jeff Coker

Seventh Circuit -- Ghulam Mustafa v. Eric Holder, Jr.

Immigration/Pakistan -- Reversal, as future threat might very well be political animus, not personal.

Ghulam Mustafa v. Eric Holder, Jr.

Seventh Circuit -- USA v. Carlos Mendiola

Linguist is not an expert for purposes of voice ID, and can therefore familiarize herself with the voice prior to the ID.

USA v. Carlos Mendiola

Seventh Circuit -- USA v. Jason Foster

Crack/cocaine adjustment is not a full resentencing, and therefore different statutory minimums don't apply.

USA v. Jason Foster

Seventh Circuit -- Central States South v. Stephen L. Messina

Veil pierced upon dissolution of retirement plan agreement, as the entity in question operated under an agreement that said that it was more than just a passive investment vehicle.

Central States South v. Stephen L. Messina

Seventh Circuit -- Porfirio Gutierrez v. Keith Anglin

Habeas -- Ineffective Assistance denial upheld, as the claim doesn't address the statutory factors of the potentially mitigated offense.

Porfirio Gutierrez v. Keith Anglin

Seventh Circuit -- John Asare Boadi v. Eric Holder, Jr

Immigration -- no unfair surprise when IJ accelerated the calendar on pro se petitioner.

IJ findings upheld.

John Asare Boadi v. Eric Holder, Jr

Seventh Circuit -- Matthew Thomas v. UBS AG

Dismissal of class action prior to certification -- Poz: Swiss bank had no obligation to tell folks that they had to pay relevant US taxes.

Matthew Thomas v. UBS AG

Seventh Circuit -- Jurijus Kadamovas v. Michael Stevens

Posner -- Reversal of dismissal of 99-page prisoner pro se complaint for unintelligibility.  There's a difference between length and unintelligibility, and Iqbal means that it might take that long to state a claim.

Jurijus Kadamovas v. Michael Stevens

Seventh Circuit -- Hoyt Ray v. Wexford Health Sourc

No cruel & unusual punishment for denial of MRI; no appointment of counsel.

Hoyt Ray v. Wexford Health Sourc

Seventh Circuit -- USA v. Adolfo Wren

Court does not have to reset to the statutory minimum when resentencing for crack/cocaine where substantial assistance to authorities moved the original range to beneath the statutory minimum.

USA v. Adolfo Wren

Seventh Circuit -- Karen Fitzgerald v. M. Santoro

Detention of potential suicide victim -- summary judgment for officers in S1983 action upheld.

Karen Fitzgerald v. M. Santoro

Seventh Circuit -- USA v. Ronald Love

Crinm -- evidence sufficient for cocaine conspiracy;

FRE --- a question doesn't assert anything and is therefore categorically not hearsay.

Remand for sentencing error -- amount of drugs involved in transaction.

USA v. Ronald Love

Seventh Circuit -- Bernard Hawkins v. USA

Posner:  Challenge to sentencing guidelines calculation not cognizable review, as the guidelines are now merely advisory.

Dissent: Circuit precedent says that prisoners can challenge career offender status.

Bernard Hawkins v. USA

Site Update

Still slogging through last week's backlog from the hintermost Circuits.  Back to nationwide same-day posting Friday, even if we have to cut the Gordian knot and not post a few.

MB

Sixth Circuit -- James Price v. Bd. of Trs. of the Ind. Laborer's Pension Fund

ERISA -- Plan can amend plan so that amendments are retroactive to earlier injuries.

Dissent, natch.


James Price v. Bd. of Trs. of the Ind. Laborer's Pension Fund 

Sixth Circuit -- USA v. Michael Peppel

When the sentencing range is in the triple digits and the actual sentence is seven days, there's a likely future remand for substantive error in sentence.

Loss correctly calculated.

USA v. Michael Peppel 

Sixth Circuit -- Aleksandr Yeremin v. Eric Holder, Jr.

Trafficking in False Documents is categorically a crime of moral turpitude for Immigration purposes.

Aleksandr Yeremin v. Eric Holder, Jr. 

Sixth Circuit -- USA v. Steven Terry

White Collar -- Honest Services conviction upheld.

USA v. Steven Terry 

Sixth Circuit -- USA v. Bernard Kurlemann

Concelament of a material fact does not constitute a False Statement under the statute.

Multiple challenges to Bankruptcy Court findings denied.

Sentencing court should have created a new range after acknowledging the Substantial Assistance.

USA v. Bernard Kurlemann 

Sixth Circuit -- USA v. Rodrigo Macias-Farias

Brady -- No error in denial of mistrial for government witness not producing in advance a written report referred to in testimony.

District court did not make necessary factual findings for Obstruction, given lack of document listing specific misstatements.

USA v. Rodrigo Macias-Farias 

Sixth Circuit -- Tonia Wright v. Kathryn O'Day

Minor has standing to make procedural due process challenge to placement on offender registry, as harm happens with the listing and the question is ripe.

Tonia Wright v. Kathryn O'Day 

Sixth Circuit -- Douglas Coley v. Margaret Bagley

Death penalty Habeas [thou shalt not kill]

No ineffective assistance for not seeking recusal/removal of judge during penalty phase.

Harmless error in guilt phase when the prosecution shifted theory of the crime as to who actually shot the gun.

No error in not releasing Grand Jury transcript, denying severance.

Douglas Coley v. Margaret Bagley 

Sixth Circuit -- Kia Motors America, Inc. v. Glassman

Where a car dealership contracts with a manufacturer under a state regulatory scheme limiting the proximity of dealerships, subsequent modification of the regulatory scheme is neither retroactively applied to the contractual agreement nor retroactively directly applied to the parties.

Kia Motors America, Inc. v. Glassman 

Sixth Circuit -- Columbia Gas Transmission, LLC v. Kanwal Singh

No Federal Question in controversy over gas pipeline easement -- the Federal statute doesn't create a private right f action, and the state question doesn't involve a significant federal interest.

Columbia Gas Transmission, LLC v. Kanwal Singh 

Fifth Circuit -- USA v. Arnoldo Gonzalez-Garcia

Physical fruits of Miranda violation not suppressable under Edwards.

Use of unwarned statment to obtain subsequent consent not always coercicive -- holistic multifactor test.

USA v. Arnoldo Gonzalez-Garcia

Fifth Circuit -- USA v. Jesse Gutierrez

Approval of involuntary medication of deft in order to stand trial.

No need for BOP Haring Officer to directly order the medication -- factual finding that it is indicated is sufficient.

Inability to replicate on the stand the mens rea at time of alleged crime is not a defense to involuntary medication.

USA v. Jesse Gutierrez

Fifth Circuit -- John Priester, Jr., et al v. JP Morgan Chase Bank,

Statute of limitations applies to challenges to homestead liens under the Texas Constitution.

Claim accrues at legal injury, not discovery.

John Priester, Jr., et al v. JP Morgan Chase Bank,

Fifth Circuit -- Tekelec, Incorporated v. Verint Systems, Incorporated

Corporation has standing to enforce agreement -- basically several arguments on the contract, not Article III.

For purposes of the K, royalties are not royalties when the term is modified by "damages."  (i.e. royalties here are a form of patent damages).

Tekelec, Incorporated v. Verint Systems, Incorporated

Fifth Circuit -- Republic of Ecuador, et al v. John Connor, et al

Intervenor corporation cannot block Federal discovery order in international arbitration, as it has argued to its profit elsewhere that the proceeding is an international tribunal and therefore qualifies for such things.

Republic of Ecuador, et al v. John Connor, et al

Fifth Circuit -- Bobby Smith v. Burl Cain, Warden

Common law limitation on new evidentiary hearings for Habeas challenges does not apply if the Federal court, looking at the state court record, determines that the state court unreasonably applied federal law -- here, in the context of a Batson challenge.

No purposeful discrimination here, mainly for lack of comparators.

Bobby Smith v. Burl Cain, Warden

Fifth Circuit -- USA v. Matthew Moore, et al

Crim -- sufficient evidence for homicide, false statements, obstruction.

USA v. Matthew Moore, et al

Fourth Circuit -- US v. Joseph Yengel, Jr.

Being told that there's a grenade somewhere in the house doesn't justify searching a locked closet under an exigent circumstances warrant exception.

US v. Joseph Yengel, Jr.

Third Circuit -- Travis Denny v. Paul Schultz

Where there is some evidence leading to a theory of constructive possession, imposing disciplinary measures on an inmate doesn't violate Due Process.

Travis Denny v. Paul Schultz

Third Circuit -- USA v. Roger Wilson

Appeals waiver does not bar challenge to later-imposed conditions of supervised release.

USA v. Roger Wilson

Second Circuit -- United States v. Abdur-Rahman

Medicaid fraud is a violation of the Federal identity theft statute.

United States v. Abdur-Rahman

First Circuit -- Culhane v. Aurora Loan Services of Nebraska

Nonparty mortgager has standing to challenge subsequent assignment of note, but strong prudential considerations can counterbalance.

Interposed entity need not hold the beneficial interest -- legal interest suffices for assignment.

Culhane v. Aurora Loan Services of Nebraska

First Circuit -- US v. Willson

Crim -- Wire fraud, false statements

Sufficient evidence for tacit agreement to conspiracy.

Good faith instruction sufficed for condonation defense.

Deft must actually hold the exculpatory impression for a reasonable interpretation of regulations instruction to be given.

US v. Willson 

Fourth Circuit -- US v. Ryan Holness

Unlike 4A, no exception for offense-specific nature of 6A right to counsel when state and federal charges overlap.

5A violation would be harmless error. (Point raised sua sponte.)

US v. Ryan Holness

Third Circuit -- Interstate Outdoor Advertising v. Zoning Board Twp Mt Laurel

Billboard law is not overly extensive, advances substantial interests of the government.

Noncommercial speech challenge TKO'd, as there are alternative channels of communication.

Interstate Outdoor Advertising v. Zoning Board Twp Mt Laurel

Third Circuit -- Jose Tellado v. Indymac Mtg Ser

Claim against lender in receivership barred -- FDIC beyond reach of statute, administrative appeals not exhausted.

Penalty Order could survive the lack of subject matter jurisdiction, but insufficient due process here.

Jose Tellado v. Indymac Mtg Ser

Second Circuit -- United States v. Desnoyers

Sentence proceedurally unreasonable, as new information not considered.

United States v. Desnoyers

Second Circuit -- Gatt Commc’ns, Inc. v. PMC Associates, L.L.C.

Co-conspirator does not have antitrust standing to file suit based on their subsequent exclusion from the conspiratorial market.

Concurrence: In pari delicto.

Gatt Commc’ns, Inc. v. PMC Associates, L.L.C.

Second Circuit -- Rothstein v. UBS AG

Plaintiffs harmed in Middle East have standing to challenge US bank's transactions with Iran under the Anti-Terrorism Act, but insufficient proximacy of cause to win the action.

Rothstein v. UBS AG

Second Circuit -- Bailey v. Pataki

Denial of qualified immunity at summary judgment stage for government officials in civil commitment case.

Bailey v. Pataki

First Circuit -- Alphas Company, Inc. v. William H. Kopke, Jr., Inc.

Statute's appeal requirements are jurisdictional.

Alphas Company, Inc. v. William H. Kopke, Jr., Inc. 

First Circuit -- US v. Maldonado

No denial of right to counsel where court didn't grant incoming potential counsel 30 day stay.

 US v. Maldonado 

First Circuit -- Juarez v. Select Portfolio Servicing

Pro se petition by attorney challenging home foreclosure states a claim as to whether the bank held the note at the time of foreclosure, but doesn't state a claim for fraud.

Juarez v. Select Portfolio Servicing 

First Circuit -- Jackson v. US

FTCA action against VA hospital.

Jackson v. US 

Site Update

Updating as many circuits as possible in the time available each day.  Later postings, therefore, for Western and Mountain circuits.  Normal service perhaps within a week.

MB

Third Circuit -- SBRMCOA v. Bayside Resort Inc

Claim that action is ultra vires is not subject to arbitration under the contract, as it speaks to formation.

Remand to distinguish condo owners' rights from the condo owners' boards' rights.

Coercion claim (duress) speaks to validity, not formation, and is therefore arbitrable.

SBRMCOA v. Bayside Resort Inc

Second Circuit -- Ozaltin v. Ozaltin

Federal law creates a private right of action to enforce Hague Convention access rights.  Circuit split flagged.

Awards of fees in such cases are discretionary.

Ozaltin v. Ozaltin

Second Circuit -- Alphonso v. C.I.R.

As use of the common grounds is allowed to co-op residents as part of their leasehold, they have sufficient property interest to present an issue of material fact as to whether a tax deduction for damage to the property was properly denied.

Alphonso v. C.I.R.

First Circuit -- Shafmaster v. US

Tax --

The IRS cannot be equitably estopped on the basis of a preliminary settlement.  In this case.

Notice and demand was sufficient under the statute.

Shafmaster v. US 

First Circuit -- Casiano-Montanez v. State Insurance Fund Corp.

Stay granted under Pullman abstention, as the Federal Constitutional question has antecedent state property law questions.

Dismissing under Younger abstention was error, as (1) dismissal is thwe wrong remedy under Younger and (2) plaintiffs had initiated the state action, and it was remedial to the same harms.

Casiano-Montanez v. State Insurance Fund Corp. 

First Circuit -- Zheng v. Holder

No error in Agency refusing to consider foreign government communication not authenticated in manner suggested by US statute. Threat of imprisonment in country of origin not specific enough to justify asylum.

Zheng v. Holder 

First Circuit -- Guaman-Loja v. Holder

Immigration -- harassment in country of origin not severe enough, not state related.

Guaman-Loja v. Holder 

Limited Service further Limited

Rolling updates for next week.  Aim is to have all decisions blurbed within a week of issue, so arguably still a useful resource for the world at large.  But very far from the daily rundown of months past.  Apologies, reading public.

MB

Sixth Circuit -- USA v. Walter Johnson

For purposes of the sentencing predicate, a conviction for selling heroin resulting in death is sufficiently similar  to a conviction for selling heroin (not resulting in death).

USA v. Walter Johnson 

Sixth Circuit -- USA v. Nathan Lumbard

The consent of the victim is not a defense to Aggravated Identity Theft.

 Sentence not unreasonable.

USA v. Nathan Lumbard 

Sixth Circuit -- USA v. Michael Deen

Bar on lengthening sentence to achieve rehabilitative goals applies to resentencing after revocation of parole.

USA v. Michael Deen 

Sixth Circuit -- USA v. Sean Howley

Surreptitious cell phone photos met all the elements of trade secret theft.

Trade secret law not unduly vague.

Sentencing court should have considered economic loss -- remand.

USA v. Sean Howley 

Fifth Circuit -- USA v. Keith Kennedy, et al

No merger of wire fraud and money laundering charges, as the conduct was separated in time.

Willful ignorance jury instruction upheld.

No clear error in Batson proceeding.

No abuse of discretion in denying severance.

USA v. Keith Kennedy, et al

Fifth Circuit -- Tina Milton v. TDCJ

Oversensitivity to scent was not a disability under the ADA.

FMLA notice not timely received.

Tina Milton v. TDCJ

Fifth Circuit -- In Re: Christopher Sepulvado

As deft could have raised ineffective assistance claims on direct review, a prior holding that ineffective assistance on first collateral review might entitle a deft to federal Habeas review of ineffective assistance at trial doesn't apply.

In Re: Christopher Sepulvado