First Circuit -- US v. Gomez

Crim --

Sufficient evidence for single conspiracy -- events introduced were therefore not outside the timeline and a variance from the indictment.

Sufficient probable cause for search, as police knew the substance of the transaction in the abandoned building.

No Apprendi violation in sentencing enhancement for quantity of drug above what was charged in the indictment, as the enhancement is found by a preponderance.

No unfair notice for same, as deft had knowledge of the amounts involved.



US v. Gomez 

First Circuit -- Nieves-Romero v. US

As there was no evidence as to when the situation became dangerous, the agency cannot be charged with constructive knowledge of the danger, and summary judgment was appropriate.

No abuse of discretion in granting summary judgment during pendency of extended discovery period.

Nieves-Romero v. US 

Circuit Break?

Only one published opinion from the circuits is up as of this writing -- from the Ninth, summarized, supra/infra.    No published opinions today -- the one in the Ninth is an amended opinion.  We'll check again tomorrow, as the Fourth apparently hasn't rolled yet, and the First and Second sometimes slip ones over the transom late in the day.

Odd -- having done this for about 2,500 posts, this is the lightest day in memory.

MB

Short Form -- Wednesday

Quick work today.  As always, entertainment value only.  Don't rely.

First Circuit:  (Souter pitches both games.)

US v. Rodas   Crim -- when the government proved the conspiracy, deft lost Confrontation Clause and prejudicial non-severance claims, as the taped statements in question were statements by conspirators in furtherance of the conspiracy.

US v. Stebbins, Jr.  -- Below-guidelines sentence upheld against deft appeal.  Deft had reason to know that the firearms would be used illicitly.  Motion for credit for previously served time was not made.  Not overall substantively unreasonable.

Second Circuit:

United States v. Richard James and Ronald Mallay  -- Crim. - Admission of lab report didn't violate Confrontation Clause.  Among other things:  trial issues, denial of severance, Confrontation Clause / taped statements.

Southern New England Telephone Company v. Comcast -- Telephone system deregulation -  No preemption, as no Congressional intent and agency indecision was a deliberate attempt to allow the states to experiment.   Merits.  State commission action reversed.    

Caronia v. Philip Morris USA  -- Tobacco liability - UCC and common law claims dismissed.  Question certified to NY top court as to whether the need for ongoing medical monitoring presents a viable separate claim.

Third Circuit:

USA v. Donald Turner -- Co-conspirators' statements aren't hearsay - the conspiracy was proved, as it was an organization devoted to popularizing the author's system of tax preparation, later found to be illicit.  Foreign bank documents had sufficient indicia of trustworthiness. Restitution to IRS upheld.

Fourth Circuit:

Mary DiFederico v. Marriott International, Incorporated   -- Forum non conveniens dismissal reversed for suit seeking damages for terrorist attack in Islamabad.

US v. Jervis Davis -- Restitution order to non-victim reversed, as plea agreement did not consent to it.

Fifth Circuit:

USA v. Melvin Towns, Jr. -- Crim - business record hearsay exception, safety valve sentencing reduction.

Erica P. John Fund, Inc. v. Haliburton Company, et -- Securities - Price-impact fraud on the market evidence should not be considered at certification stage.  

Glory Truong v. Bank of America, N.A., et al -- Rooker-Feldman does not bar claim, as the borrower was challenging not the foreclosure judgment, but the related actions of the banks.  Defts, however are immunie from suit, as state statute exempts federally-insured lenders.

American Family Life Assurance v. Glenda Biles, et  -- No abstention.  Arbitration order does not violate Anti-Injunction Act.  Merits upheld.

Sixth Circuit:

Libertarian Party of Michigan v. Ruth Johnson   -- Election Law - challenge not moot, as capable of repetition, avoiding review.

Bridgeport Music, Inc. v. Smith  --

Eighth Circuit:

(From the court's website)

103137P.pdf  05/01/2013  B & B Hardware  v.  Hargis Industries
   U.S. Court of Appeals Case No:   10-3137
                          and No:   11-1247
   U.S. District Court for the Eastern District of Arkansas - Little Rock   
   [PUBLISHED] [Shepherd, Author, with Loken and Colloton, Circuit Judges]
   Civil case - Trademarks. For the court's prior opinions in the case, see
   B&B Hardware, Inc. v. Hargis Industries, Inc., 569 F.3d 383 (8th Cir.
   2009); and B&B Hardware, Inc. v. Hargis Industries, 252 F.3d 1010 (8th
   Cir. 2001). Assuming that Trademark Trial and Appeal Board decisions
   may be entitled to preclusive effect, such application is not appropriate
   here because the same likelihood-of-confusion issues were not decided by
   the Board as were brought in the action before the district court; the court
   rejects B&B's argument that the Board's factual findings from a
   trademark registration case are entitled to deference by the district court;
   district court did not abuse its discretion by refusing to admit the Board's
   decision into evidence as over the course of the seven-day trial the jury
   was presented with evidence regarding likelihood of confusion as it
   pertained to the factors under which the jury decided the claim of
   trademark infringement and the probative value of the Board's ultimate
   conclusion was minimal; the district court erred in including an award of
   attorneys' fees to Hargis for B&B's prior appeal as that appeal resulted in
   a ruling in B&B's favor and was not groundless or unreasonable; on
   remand, the court should amend its award of fees by deducting the fees
   for the appeal. Judge Colloton, dissenting. 
  
122913P.pdf  05/01/2013  United States  v.  Nathan Ozmon
   U.S. Court of Appeals Case No:   12-2913
   U.S. District Court for the Southern District of Iowa - Davenport   
   [PUBLISHED] [Murphy, Author, with Beam and Bye, Circuit Judge]
   Criminal case - Sentencing. Government did not breach the cooperation
   agreement when it used defendant's self incriminating statements from
   his proffer interview; sentence imposed was not substantively
   unreasonable. 
  


Ninth Circuit:


USA V. JEROME MANCUSO  -- Crim/Drugs - Multiple challenges to indictment, Question of whether the property was sufficiently used for illicit purposes,  sentencing challenges.


KEONE LABATAD V. CCA -- S1983 prisoner claim - summary judgment upheld, given lack of indifference by prison staff. (Assault by hostile gang member placed in same cell.)


Federal Circuit:


ALLERGAN, INC. v. SANDOZ INC. [OPINION]
STEPHANIE FIGUEROA v. HHS [OPINION]
VERSATA SOFTWARE, INC. v. SAP AMERICA, INC. [OPINION]


Long form tomorrow.  Still fighting equipment issues.  New Macbook Pros can be sent to the author, Poste Restante, Gotham.

MB

Short Form: Rest of Tuesday

Seventh:

Suriya H. Smiley v.   Columbia College Chicago
USA v.   Ivy Tucker

Eighth (from website):

121918P.pdf  04/30/2013  Columbia Casualty Co.  v.  Curtis W. McGhee
   U.S. Court of Appeals Case No:   12-1918
                          and No:   12-1922
   U.S. District Court for the Southern District of Iowa - Council Bluffs   
   [PUBLISHED] [Wollman, Author, with Bye and Benton, Circuit Judges]
   Civil case - Insurance. For a statement of facts in the case, see Genesis
   Insurance Co. v. City of Council Bluffs, 677 F.3d. 806 (8th Cir. 2012). In
   a declaratory judgment action to determine coverage under various
   insurance policies issued to the city, the district court did not err in
   rejecting the City's request to consider extrinsic evidence regarding the
   parties' intent or in denying the City's request for additional discovery on
   extrinsic evidence; in Genesis, the court determined that for purposes of a
   malicious prosecution action, the arrested persons' injuries occurred
   when they were prosecuted and were not a continuing injury; as a result,
   the policies, with one exception, were not in effect when the arrested
   persons' injuries occurred; with respect to that policy, which was in effect
   from August, 1977 to August 1978, when the charges were filed in the
   arrested persons' criminal prosecution, the City was entitled to coverage
   under the "reasonable expectations" doctrine. Judge Bye, concurring in
   part and dissenting in part.

123485P.pdf  04/30/2013  United States  v.  James Tebeau
   U.S. Court of Appeals Case No:   12-3485
   U.S. District Court for the Eastern District of Missouri - Cape Girardeau   
   [PUBLISHED] [Murphy, Author, with Wollman and Beam, Circuit Judges]
   Criminal case - Criminal law. District court did not err in determining
   that defendant, the owner of property he used for music festivals, may be
   indicted under 21 U.S.C. Sec. 856(a)(2) for making a property available
   for drug distribution without any further illegal purpose ; the statute does
   not require proof that defendant had the illegal purpose to use,
   manufacture, sell or distribute a controlled substance, as it is sufficient
   that he intended to make his property available to others who had that
   purpose; this interpretation of the statute does not violate the Fifth
   Amendment due process clause or defendant's First Amendment rights;
   indictment satisfied the requirements of Fed. R. Crim. P. 7(c).

Ninth:

IN THE MATTER OF: FITNESS HOLDINGS INTERNATIONAL
HORACE FRIEND V. ERIC HOLDER, JR.
USA V. LAWRENCE MICHAEL STANFILL EL

Tenth:

Rawlins v. State of Kansas
Karki v. Holder

DC:
NetCoalition v. SEC
Quantum Entertainment Limited v. Department of the Interior

Sixth Circuit -- Estate of William R. Barney, J v. PNC Bank, National Association

Bank not liable for money that fiduciary of depositor squandered.

 Estate of William R. Barney, J v. PNC Bank, National Association 

Fifth Circuit -- National Rifle Association, et al v. Bureau of Al

Dissent from denial of en banc:  As 18-20's were expected to serve in the militia at the Founding, they have a right to buy them now.

Pot-shot at "scattershot approach to history."

National Rifle Association, et al v. Bureau of Al

Third Circuit -- MD Mall Associates v. CSX Trans Inc

Issue raised for the first time on appeal isn't barred by waiver where the issue is one of public importance.

No judicial estoppel where the party did not benefit from the inconsistent positions.

No express preemption where the federal statute does not address the same harms as the state statute.

Remand for determination of conflict preemption.

Dissent: preemption analysis should consider the impact of the statute, not the intent.

MD Mall Associates v. CSX Trans Inc

Second Circuit -- Magi XXI, Inc. v. Stato della Città del Vaticano

To enforce forum selection clause against signatory party, relationship between signatory and nonsignatory party making the claim must be such that invocation of the clause is foreseeable to the signatory.

Magi XXI, Inc. v. Stato della Città del Vaticano

Second Circuit -- Richmond v. Holder

Immigration -- case remanded to agency to determine if petitioner's false claim to be an American citizen disqualifies him from relief.  (Remanded because of lack of agency precedent on the question - interesting.)

Richmond v. Holder

First Circuit -- US v. Rogers

Sufficient evidence for conviction, as the pr0n was found on the laptop at the pawn shop, filed under the username of the deft.

Restitution amount and findings as to causation were reasonable.

US v. Rogers 

First Circuit -- US v. Quirion

As false statements to investigators were related to the charges against the defendant, they were material, although made prior to the commencement of the investigation and with the motive of protecting a second principal.  Asseverations to the contrary are to no avail.

US v. Quirion 

Short Form: Friday and Monday

Second Circuit:

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.  -- Gender discrimination claim under NYCHRL gets past summary judgment
Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs., P.C. -- Gender discrimination - Title VII and NYSHRL claims dismissed, as "paramour preference" is insufficient basis for claim.

Third Circuit:

Robert A. Mariotti, Sr. v. Mariotti Bldg Products -- For purposes of employee standing under the ADA, shareholder-directors of corporations other than professional corporations must be considered under common-law criteria of agency, and they must act according to their own right in exercising their authority, as opposed to exercising delegated authority.

Fourth Circuit:

US v. 4219 University Drive, Fairfax   -- Crim - trial questions & JMOL
C Dept of Education v. US Secretary of Education -- IDEA (education rights of disabled)
US v. Raymond Allen -- Crim - sufficient evidence, crack/cocaine FSA adjustment
US v. Adley Abdulwahab -- Crim - Money laundering, mail fraud, conspiracy
Central Telephone Company of VA v. Sprint Communications Company  -- Phone carrier tie-in: Article III vs. State review of administrative decisions, Exhaustion, Judicial recusal, Contract interpretation.
The Country Vintner of NC v. E. & J. Gallo Winery -- FRCP - neither data storage nor transmittal count as costs that can be recovered under the fee-shifting statute - only when the file is converted to TIFF/PDF or printed onto CD.
US v. Frederick Springer  -- Civil commitment - mootness, merits.  Dissent.

Fifth Circuit:

USA v. Julian Garza-Guijan -- Sexual battery counts as a crime of violence for immigration purposes.
USA v. Fred Cooper   -- Crim - trial issues, for-cause strike denied, lesser-included instruction, viability of firearm at issue.
Terry Lonatro, et al v. Orleans Levee District -- The Quiet Title Act only waives sovereign immunity when the underlying dispute is between the plaintiff and the United States.

Seventh Circuit:

USA v.   Jose Tovar-Pina -- Sentencing - challenge to PSRs sustained despite lack of contemporaneous objection.
Gerald Kamlager v.   William Pollard  -- "De facto" confession not entitled to per se reversal after 6A challenge
Ji Cheng Ni v.   Eric H. Holder, Jr.
Big Ridge, Incorporated v.   Federal Mine Safety and Review

Eight Circuit (From snazzy new website):

111380P.pdf   04/29/2013  United States  v.  Daniel Lee
  U.S. Court of Appeals Case No:  11-1380
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
  Prisoner case - habeas. Lee's trial counsel's use of peremptory strikes
  based on race in violation of Georgia v. McCollum, 505 U.S. 42 (1992)
  did not deprive him of effective assistance of counsel; Lee's
  constitutional challenges to his sentence were rejected in his direct appeal
  and cannot be relitigated by way of a petition for postconviction relief
  under Section 2255; other challenges to the death sentence were outside
  the scope of the certificate of appealability.

103076P.pdf   04/26/2013  Shirley Phelps-Roper  v.  Chris Koster
  U.S. Court of Appeals Case No:  10-3076
  U.S. District Court for the Western District of Missouri - Jefferson City    
  [PUBLISHED] [Bye, Author, with Wollman and Shepherd, Circuit Judges]
  Civil case - Funeral Protests. Plaintiff's speech at funerals, while
  repugnant to some listeners, is entitled to constitutional protection; since
  the plaintiff established that she engages in First Amendment expressive
  conduct protected by the First Amendment, the district court properly
  placed the burden of proof on the State as the proponent of the funeral
  protest laws which restricted plaintiff's right to engage in the conduct;
  given the en banc court's decision in Phelps-Roper v. City of Manchester,
  Mo., 697 F.3d (8th Cir. 2012), Missouri has shown a significant
  government interest in protecting the peace and privacy of funeral
  attendees for a short time and in a limited space; the failure, however, to
  define the spatial extent of the buffer zone in Missouri Rev. Stat. Sec.
  578.501 resulted in the statue burdening substantially more speech than is
  necessary to serve Missouri's interests and prevents the section from
  being narrowly tailored; both Sec. 578.501 and 578.502 use the word
  "processions" in their definition of a funeral, and the use of this word
  creates a "floating zone," giving both sections impermissibly broad reach;
  however, severing the word from the statutory sections, results in a three-
  hundred-foot buffer zone in Section 578.502, and, with the word severed,
  this statutory section is constitutional since it is narrowly tailored and
  leaves open ample alternative channels for communication of plaintiff's
  message; elimination of the word from Section 578.501 does not solve
  the remaining constitutional problems for that section, and the district
  court did not err in finding it unconstitutional.


121342P.pdf   04/26/2013  United States  v.  Lowell Baisden
  U.S. Court of Appeals Case No:  12-1342
  U.S. District Court for the District of Nebraska - Lincoln    
  [PUBLISHED] [Smith, Author, with Beam and Gruender, Circuit Judges]
  Criminal case - Criminal law. The record established the district court
  properly reviewed defendant's request for new counsel and correctly
  denied it; defendant's attempt to withdraw his guilty plea did not have
  factual or legal support and was properly denied; the record further
  showed defendant had received competent, effective assistance of counsel
  in connection with his plea.


121786P.pdf   04/26/2013  Smith Flooring  v.  Pennsylvania Lumbermens Mutual
  U.S. Court of Appeals Case No:  12-1786
  U.S. District Court for the Western District of Missouri - Springfield    
  [PUBLISHED] [Smith, Author, with Beam and Gruender, Circuit Judges]
  Civil case - Insurance. The district court erred in finding there were no
  issues common to the parties' legal and equitable claim, and plaintiff had
  a Seventh Amendment right to trial by jury on the common issue of what
  the terms of the parties' intended contract were; the court also erred in
  treating the jury's verdict as merely advisory under Fed. R. Civ. P. 39
  insofar as this issue was concerned; however the errors doe not
  necessitate reversal of the court's order granting post-verdict judgment to
  defendant as the evidence was not sufficient to support the jury's verdict
  for plaintiff, and the district court did not err in reforming the insurance
  policy.


121806P.pdf   04/26/2013  American Bank of St. Paul  v.  TD Bank, N.A.
  U.S. Court of Appeals Case No:  12-1806
                         and No:  12-1862
                         and No:  12-2399
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Benton, Author, with Smith and Melloy, Circuit Judges]
  Civil case - Torts. The district court did not err in denying defendant
  Mercantile's Rule 50 motion for judgment as a matter of law on
  plaintiff's aiding and abetting and conspiracy claims; excluding
  defendant's evidence of other banks' reactions to the borrower's fraud
  was not error; challenges to jury instructions rejected; denial of plaintiff's
  motion for additur was not an abuse of discretion, as the amount of
  damages was properly left to the jury.


122376P.pdf   04/26/2013  United States  v.  Matthew Olsson
  U.S. Court of Appeals Case No:  12-2376
  U.S. District Court for the Western District of Missouri - Jefferson City    
  [PUBLISHED] [Shepherd, Author, with Riley, Chief Judge, and Loken,
  Circuit Judge]
  Criminal case - Criminal law and Sentencing. Challenges to cross-
  examination of the government's witnesses rejected; defendant's prior
  conviction for second-degree burglary qualified as a crime of violence for
  purposes of career offender sentencing under Guidelines Sec. 4B1.1.


122482P.pdf   04/26/2013  David Longaker  v.  Boston Scientific Corporation
  U.S. Court of Appeals Case No:  12-2482
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Wollman, Author, with Bye and Benton, Circuit Judges]
  Civil case - Contracts. The district court did not err in determining
  plaintiff lacked standing to pursue his breach of contract claim against his
  former employer as the claim belonged to plaintiff's bankruptcy estate;
  plaintiff never asked the court for leave to amend his complaint to include
  a retaliation claim under Minnesota's Human Rights Act, and the court
  could not err by failing to grant leave under these circumstances. Judge
  Bye, concurring in part and dissenting in part.


123028P.pdf   04/26/2013  United States  v.  David Nicklas
  U.S. Court of Appeals Case No:  12-3028
  U.S. District Court for the Western District of Arkansas - Fayetteville    
  [PUBLISHED] [Bye, Author, with Riley, Chief Judge, and Benton,
  Circuit Judge]
  Criminal case - Criminal law. In a prosecution for transmitting a fax
  containing a threat to injure in violation of 18 U.S.C. Sec. 875(c), the
  court did not err in granting the government's motion to strike the word
  "wilfully" from the indictment as the section creates a general intent
  crime and the section does not require the government to prove a
  defendant specifically intended his or her statements to be threatening;
  instead, the government must prove a reasonable recipient would have
  interpreted the fax as a serious threat to injure; as a result, the word
  willful was properly stricken as surplusage; evidence was sufficient to
  support defendant's conviction; no error in refusing to give defendant's
  proposed instruction on reasonable doubt as it was foreclosed by circuit
  precedent.


123211P.pdf   04/26/2013  Shawna Hess  v.  Carol Abels
  U.S. Court of Appeals Case No:  12-3211
  U.S. District Court for the Eastern District of Arkansas - Pine Bluff    
  [PUBLISHED] [Gruender, Author, with Murphy and Smith, Circuit Judges]
  Civil case - Employment law. In action brought by an city employee
  who was terminated after refusing to take a drug test, the district court did
  not err in granting the defendants' motion for summary judgment based
  on qualified immunity as it was not clearly established at the time of the
  termination that such an action violated an employee's Fourth
  Amendment rights; plaintiff's Fifth Amendment and Fourteenth
  Amendment claims failed to allege a constitutional violation; the district
  court properly dismissed the official capacity claims against the
  individual defendant and the claims against the City; no error in
  dismissing claims under the Arkansas Civil Rights Act.
 


Ninth Circuit:


CLEVO CO. V. HECNY TRANSPORTATION, INC.
ROBIN PETERSEN V. BOEING COMPANY
GRAND CANYON SKYWALKDEVELOPMENT V. 'SA' NYU WA INCORPORATED
USA V. MICHAEL RAMIREZ


Tenth Circuit - nothing published today, unknown if any published opinions were posted Friday.


DC Circuit:


Flagstaff Medical Center, Inc. v. NLRB
American Petroleum Institute v. SEC
AstraZeneca Pharmaceuticals LP v. FDA


Federal Circuit:


ROBERT MACLEAN v. DHS [OPINION]
BIOSIG INSTRUMENTS, INC. v. NAUTILUS, INC. [OPINION]




Incomplete summaries today. Time/equipment limits. Better results in the next at-bat.

MB

Next update Monday

Still short one DC Circuit opinion from the past week.

MB

DC Circuit -- Defenders of Wildlife v. Lisa Jackson (4/23)

Consent decree does not impose procedural injury on environmental group by compressing notice-and-comment period.  No proof of increased information-gathering costs.

Barred intervenor limited on appeal to appeal of the barred intervention.

Defenders of Wildlife v. Lisa Jackson

Ninth Circuit -- MONDACA-VEGA V. HOLDER

District court holding as to whether petitioner is an American citizen is reviewable only for clear error.

Burden of production on petitioner to prove citizenship by a preponderance, but the government still bears the ultimate burden of showing non-citizenship.

Dissent: De novo appellate review.  Government must show by clear, unequivocal, and convincing evidence.

MONDACA-VEGA V. HOLDER

Ninth Circuit -- CONSERVATION NORTHWEST V. HARRIS SHERMAN

Agency cannot substantially and permanently change rule that would otherwise be subject to statutory checks on modification by entering into a judicial consent decree.

CONSERVATION NORTHWEST V. HARRIS SHERMAN

Eighth Circuit -- United States v. Joel Castillo

From the court's website:

122898P.pdf   04/24/2013  United States  v.  Joel Castillo
  U.S. Court of Appeals Case No:  12-2898
  U.S. District Court for the Western District of Arkansas - Ft. Smith    
  [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
  Criminal Case - conviction and sentence. Viewing the evidence in the
  light most favorable to jury verdict, government presented sufficient
  evidence for rational jury to find Castillo possessed methamphetamine
  knowingly or intentionally, as drugs were found in truck he alone drove,
  he appeared nervous at traffic stop, drugs smelled of mustard, he was
  unsurprised when drugs discovered, and story was implausible. District
  court did not clearly err in denying offense level reduction for mitigating
  role and considered the section 3553(a) factors in determining sentence. 
  District court did not abuse its discretion in sentencing Castillo.

Eighth Circuit -- Laclede Gas Company v. St. Charles County

From the court's website:

122755P.pdf   04/25/2013  Laclede Gas Company  v.  St. Charles County
  U.S. Court of Appeals Case No:  12-2755
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Kopf, Distric Judge, Author, with Bye and Melloy,
  Circuit Judges]
  Civil Case - preliminary injunction. In dispute involving right of local
  government and rights of public utility in shared easements, the district
  court had jurisdiction to grant preliminary injunction and did not abuse its
  discretion in doing so. No categorical rule that before addressing
  preliminary injunction motion a court must rule on the opposing party's
  assertion that the court lacks jurisdiction. Imminent threat of physical
  damage to pipeline sufficient to provide district court with jurisdiction
  under the Natural Gas Pipeline Safety Act. District court did not abuse its
  discretion in failing to abstain. Judge Bye concurs.
 

Eighth Circuit -- United States v. Freddie Wallace

From the court's website:

(With appropriate excisions to keep this site in the good graces of censorious web-indexing robots)

122172P.pdf   04/25/2013  United States  v.  Freddie Wallace
  U.S. Court of Appeals Case No:  12-2172
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Gruender, Author, with Murphy and Smith, Circuit Judges]
  Criminal Case - conviction. In trial on charges of production of child
  p and possession of child p, district court did not
  err in admitting signed confession, as the court carefully considered the
  totality of the circumstances in finding the confession was made
  knowingly, intelligently, and voluntarily. Admission of videotaped
  seized following tip from informant was not error, as informant's
  information was independently corroborated and probable cause for
  warrant was established. No plain error in admitting cellmate testimony. 
  Evidence was sufficient to support production of child p
  conviction.

Eighth Circuit -- Ser Yang v. Western-Southern Life

From the court's website: 

122021P.pdf   04/25/2013  Ser Yang  v.  Western-Southern Life
  U.S. Court of Appeals Case No:  12-2021
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Benton, Author, with Wollman and Bye, Circuit Judges]
  Civil Case - contract. Grant of summary judgment to insurer for
  disallowance of death benefits based on insured's signature on policy
  despite errors made by agent is reversed. A reasonable jury could find
  insured put agent on notice of prior medical history. Transcript of
  conversation was not attached to the policy and could not be used to
  contest the policy. Summary judgment is reversed

Eighth Circuit -- United States v. Bryan Behrens

From the court's website:

113482P.pdf   04/25/2013  United States  v.  Bryan Behrens
  U.S. Court of Appeals Case No:  11-3482
  U.S. District Court for the District of Nebraska - Omaha    
  [PUBLISHED] [Gruender, Author, with Chief Judge Riley and
  Colloton, Circuit Judges]
  Criminal Case - sentence. Sentence of imprisonment for securities fraud
  is affirmed. The "no knowledge" defense to imprisonment in 15 U.S.C.
  sec. 78ff, is not limited to no knowledge of the existence of the pertinent
  SEC rule or regulation but whether they did not know the substance of
  the SEC rule or regulation they allegedly violated regardless of whether
  they understood its particular application to their conduct. Because
  Behrens admitted to knowing the substance of Rule 20b-5, he was

Seventh Circuit -- Emilio Martino v. Western & Southern Financial

Not providing I-9 documents in a timely fashion was a bona fide reason to fire -- not a pretextual defense to claim of religious discrimination.

No substantial question of defamation when the termination was reported to state insurance officers, despite the fact that the only reporting requirement is for termination for bad acts.

Emilio Martino v.   Western & Southern Financial

Fourth Circuit -- Ernest Flagg v. City of Detroit

S1983 -- District court properly excluded motive-related evidence as inadmissible propensity evidence under FRE.

Lower court had discretion to make adverse inference instruction permissive as opposed to mandatory.

Summary judgment upheld.

Ernest Flagg v. City of Detroit 

Fourth Circuit -- Mahmoud Hegab v. Letitia Long

Court: Denial of security clearance does not state a colorable constitutional claim, as it is simply a recharacterization of a factual determination.

Concurrence 1: Challenge to policies states a constitutional claim, but this is a factual challenge.

Concurrence 2: Colorable constitutional claim, but nonjusticiable, since it's a political question.


Mahmoud Hegab v. Letitia Long 

Third Circuit -- Haddrick Byrd v. Robert Shannon

"Three strikes" bar to prisoners' proceeding IFP begins to accrue regardless of whether the prisoner was proceeding IFP in the prior action.

Entire action or appeal must be dismissed to count as a strike.  Circuit split flagged.

Quick dismissal of the claim in the present case (glaucoma eye drops/ 8th amendment)

Haddrick Byrd v. Robert Shannon

Second Circuit -- Shabaj v. Holder

Immigration review jurisdiction-strip upheld.  Even on constitutional questions, the challenge must be filed at the court of appeals level, not the district court level.

Shabaj v. Holder

Second Circuit -- Proctor v. LeClaire

For purposes of issue and claim preclusion, initial decision to restrain inmate is distinct from subsequent periodic review of the decision.

Proctor v. LeClaire

Second Circuit -- Patrick Cariou v. Richard Prince, et al.

IP must-read -- fair use does not require that the derivative work comment upon the original work or upon pop culture generally.  Key considerations are transformative nature and usurpation of market.

Concur/Dissent -- Court should have remanded all claims, instead of ruling on some and remanding some.

Patrick Cariou v. Richard Prince, et al.

First Circuit -- Smith v. Solomon and Solomon, P.C.

Federal debt collection statute does not require post-judgment garnishment action to be filed in the location of the initial contracting.

 Smith v. Solomon and Solomon, P.C. 

Eleventh Circuit -- Darwin Gilberto Ruiz-Turcios v. US Attorney General

Darwin Gilberto Ruiz-Turcios v. US Attorney General

Eleventh Circuit -- In re: Warren Lee Hill, Jr.

In re: Warren Lee Hill, Jr.

Eleventh Circuit -- USA v. Maurice LaShane Hamilton

USA v. Maurice LaShane Hamilton

Eleventh Circuit -- Kelvin Ortiz-Bouchet, et al. v. U.S. Attorney General

Kelvin Ortiz-Bouchet, et al. v. U.S. Attorney General

Tenth Circuit -- Al-Marri v. Davis

Al-Marri v. Davis

Ninth Circuit -- REDOIL v EPA

REDOIL v EPA

Ninth Circuit -- KEITH JAMERSON V. GAIL LEWIS

Batson/Habeas Review

 Federal collateral review can look at drivers licence photos, as they were available to the state courts .

State court holding that challenges were not pretextual was reasonable.

KEITH JAMERSON V. GAIL LEWIS

Ninth Circuit -- MICHAEL SCHWAB V. CIR

Tax -- cash surrender value (including charges) rather than market value should be used to tax life insurance disbursements after early termination of policy.

MICHAEL SCHWAB V. CIR

Eighth Circuit -- United States v. Joel Castillo

If someone gives you a box and tells you it's medicine for a friend in Maryland who will give you a few tacos in thanks for delivering it, that's sufficient evidence for a drug courier conviction.

No error in denial of mitigation in sentencing, as deft has the burden to establish small role.

Other sentencing challenges.

United States  v.  Joel Castillo

Eight Circuit -- United States v. Armon Thompson

No Public Trial violation from closure of courtroom during the testimony of one witness.

United States  v.  Armon Thompson

Eighth Circuit -- James Carmody v. K. C. Board of Police Comm.

FRCP --

Upholding of striking of plaintiff's affidavits due to discovery noncompliance.

Insufficient evidence to get past summary judgment without them, even with relaxed standards, given opponent's lax record-keeping.

James Carmody  v.  K. C. Board of Police Comm.

Seventh Circuit -- Claude Harrell, Jr. v. American Red Cross

Labor law -- injunction rescinding merit pay freeze sustained.  Denial of other relief reversed -- the intent of the statute is to restore the status quo ante.

Claude Harrell, Jr. v.   American Red Cross

Seventh Circuit -- William Rameker v. Brandon Clark

Inherited IRA's are not exempt from bankruptcy creditors.  Circuit split flagged.

William Rameker v.   Brandon Clark

Sixth Circuit -- Appalachian Reg'l Healthcare v. Coventry Health & Life Ins.

Challenge to expired injunction is moot.

Appalachian Reg'l Healthcare v. Coventry Health & Life Ins. 

Sixth Circuit -- Harold Wallace v. Midwest Fin. & Mortg. Serv.

Lender's allegedly inflated assessment of property was sufficiently proximate to petitioner's losses that a civil RICO claim is stated; State law conspiracy claims dismissed.

Harold Wallace v. Midwest Fin. & Mortg. Serv.  

Fifth Circuit -- RBIII, L.P. v. City of San Antonio

City's decision to demolish structure before providing notice to owners is entitled to deference and not subject to challenge unless arbitrary or an abuse of discretion.

Reversal for jury instructions that focused on the accuracy of the City's decision and not it reasonableness.

RBIII, L.P. v. City of San Antonio

Fourth Circuit -- US v. John McLean

Medical fraud statute not unconstitutionally vague.

Sufficient evidence for conviction under same.

US v. John McLean

Fourth Circuit -- Dario Suarez-Valenzuela v. Eric Holder, Jr.

Immigration / CAT

Substantial evidence for finding that the foreign government would not acquiesce to the torture of the petitioner.

Court applied willful blindness standard when considering likelihood of acquiescence, as it engaged in fact-based analysis, instead of looking for explicit acceptance of the conduct.

Dario Suarez-Valenzuela v. Eric Holder, Jr.

Third Circuit -- USA v. Albert Savani

Crack/cocaine sentencing -- when deft was sentenced below the statutory minimum pursuant to prosc. motion, deft can move for a reduction of sentence when the minimums are subsequently adjusted -- though vague, deft wins under Lenity.

Concurrence: No need to look to Lenity.

USA v. Albert Savani

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

Per curiam short reversal after Scotus remand.  Brief summary of Scotus holding on copyright/ first sale.

John Wiley & Sons, Inc. v. Supap Kirtsaeng

Second Circuit -- United States v. Lifshitz

After revocation of supervised release, sentencing court cannot lengthen the new sentence for rehabilitative needs.

Discussion of rehabilitation during sentencing is not proof that sentencing was a factor in the sentence length -- merely a prudent judicial practice.

United States v. Lifshitz

Second Circuit -- Young v. Conway

Concurrence/dissent from denial of en banc for Wade/4A claim.  A must-read.

Dissent 1: Fourth Amendment claims are barred from Habeas challenge unless there was no full and fair opportunity to litigate the question in the state court.  State interpretation was correct, in addition to not unreasonable.  Pinholster bars consideration of extrinsic social science evidence.  Circuit split alleged on whether Stone threshold is waivable.

Dissent 2: Yep.

Concurrence responds point by point.  Also points out that en banc is a high threshold.

Young v. Conway

Short Form: Friday and Monday

First Circuit:

US v. Francois  -- No abuse of discretion in denying new appointed counsel; despite sub-par Faretta warning, no error in allowing deft to go pro se; sufficient factual basis for jury instruction on flight; voluntary appearance at police station to report a crime doesn't trigger Miranda; remand for sentence in excess of maximum.

Calderon-Serra v. Wilimington Trust Company  -- For-profit securities issued by a nonprofit do not trigger protections under the Trust Indenture Act.

Liu v. Holder  -- Immigration: Adverse credibility finding of court below was supported by substantial evidence.

Somascan, Inc. v. Philips Medical Systems  -- FRCP: no error in denying leave to amend the complaint long after the deadline.  

Lund v. Fall River, MA -- (Souter) Boils off at two: Site identified as alternate development area for adult-themed business was both reasonable and constitutional.

Second Circuit:

National Organization for Marriage, Inc. v. Walsh -- PAC challenge to restrictive statute is ripe, given the likelihood that it would be applied to them; Dissent: no state agency has said that it would apply.

Santana v. Holder -- Second Degree Arson is a crime of violence for immigration purposes; Even if you set fire to your own property, it could spread.

Paskar v. USDOT -- Administrative Law - Agency letter insufficiently final for purposes of appellate review.

Third Circuit:

Michel Sylvain v. Atty Gen USA -- Immigration authorities retain power to detain those subject to removal after the person in question has been released from custody; Statute saying that the detention must happen "when" released doesn't set a firm deadline.

Fourth Circuit:

Josephine Spaulding v. Wells Fargo Bank, N.A.  -- Claim not stated for mortgage fraud: (1) Breach of implied contract; (2) Negligence; (3) State statute; (4) Negligent misrepresentation; (5) Fraud.

Fifth Circuit:

R&L Investment Property, L.L.C v. Guy Hamm, et al -- Ratification of promissory note after discovering error in permit means that the purchaser has no fraud claim based on sub-par permitting of site.

Madhwa Raj v. LSU, et al -- Employment claim against a university - sovereign immunity bars most claims; Title VII claim not stated, as nothing in claim to suggest discriminiatory animus.

Frank Teta v. Michelle Chow -- Class actions / bankruptcy - court should consider bankruptcy-related factors (procedural options, cost to estate) when assessing class certification.  Remanded because insufficiently explained. CIJ.

USA v. Richard Scruggs -- White collar: Skilling challenge TKO'd, as the crime in question was bribery; pre-Skilling guilty plea doesn't establish sufficient cause for collateral challenge; Sufficient evidence to disprove actual innocence claim; Statute not overbroad enough to chill political speech.

Sixth Circuit:

Harold Wallace v. Midwest Fin. & Mortg. Serv.  -- Lender's allegedly inflated assessment of property was sufficiently proximate to petitioner's losses that a civil RICO claim is stated; State law conspiracy claims dismissed.

Seventh Circuit:

Central States, Southeast and v.   Charles Nagy -- Entrepreneur's leasing of property was trade or business sufficient to trigger personal liability for later ERISA shortfall.

Jimmy Smith, Jr. v.   Sangamon County Sheriff's Dept -- No S1983 claim based on post-arrest assault committed by inmate detained prior to trial, as no systematic disregard of obvious risks in the jail's sorting system.

Linda White v.   Marshall & Ilsley Corporation -- Continuing to offer company stock in the retirement plan during a 54% decrease in price is not a breach of fiduciary duty under ERISA.

Eighth Circuit:

(From court website)

111382P.pdf   04/22/2013  United States  v.  Chevie Kehoe
  U.S. Court of Appeals Case No:  11-1382
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Wollman, Author, with Riley, Chief Judge, and
  Melloy, Circuit Judge]
  Prisoner case - Habeas. In Young v. Bowersox, 161 F.3d 1159 (8th Cir.
  1998), this court rejected the argument that an ineffective assistance
  counsel claim based on a Batson error should be considered a structural
  error entitled to a presumption of prejudice and determined that to
  succeed on such a claim, the petitioner must demonstrate a reasonable
  probability that the results of the proceeding would have been different;
  here, in order to succeed on his claim of ineffective assistance of counsel,
  Kehoe must demonstrate that he suffered prejudice as a result of his
  attorney's actions in striking potential jurors on the basis of their race in
  violation of Georgia v. McCollum, 505 U.S. 42 (1992), and he failed to
  do so.

121416P.pdf   04/22/2013  Clarinet  v.  Essex Insurance Co.
  U.S. Court of Appeals Case No:  12-1416
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Riley, Author, with Wollman and Melloy, Circuit Judges]
  Civil case - Insurance. The district court did not err in determining that
  coverage was barred under the "owned property exclusion" in the policy.

122613P.pdf   04/22/2013  United States  v.  David Allen
  U.S. Court of Appeals Case No:  12-2613
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
  Criminal case - Criminal law. Probable cause existed to arrest
  defendant for possession of counterfeit checks, and the search of his car
  was a lawful search incident to arrest as the officers had reason to believe
  the vehicle contained evidence of the offense; the luggage stored on the
  motel luggage cart could be searched as there was a reasonable
  probability that the evidence on the cart would have been discovered after
  defendant's arrest during an inventory search.

122796P.pdf   04/22/2013  Rosa Gutierrez  v.  Eric H. Holder, Jr.
  U.S. Court of Appeals Case No:  12-2796
  Petition for Review of an Order of the Board of Immigration Appeals    
  [PUBLISHED] [Gruender, Author, with Murphy and Smith, Circuit Judges]
  Petition for Review - Immigration. Petitioner failed to establish that it
  would have been unreasonable for her to relocate in Columbia as required
  under the federal regulations outlining the eligibility requirements for
  withholding of removal - 8 C.F.R. Sec. 1208.16(b)(2) - and the IJ and
  BIA did not err in finding she was not eligible for withholding of
  removal; further, proceeding to the merits of her claim, the record showed
  she had not suffered past persecution which would create a presumption
  that she has a well-founded fear of future persecution and she had not
  shown a clear probability of future persecution on a protected ground; no
  error in denying CAT relief.

123634P.pdf   04/22/2013  John Arnzen, III  v.  Charles Palmer
  U.S. Court of Appeals Case No:  12-3634
  U.S. District Court for the Northern District of Iowa - Sioux City    
  [PUBLISHED] [Arnold, Author, with Bye and Benton, Circuit Judges]
  Civil case - Civil rights. In action by patients at the Iowa Commitment
  Unit for Sex Offenders challenging the placement of video cameras in the
  facility's restrooms, the district court did not err in granting a preliminary
  injunction ordering that cameras in "traditional style" bathrooms (as
  opposed to "dormitory style" restrooms) be pointed at the ceiling or
  covered with a lens cap, as capturing images of patients in single-user
  restrooms violated the patients' reasonable expectations of privacy.
 

113860P.pdf   04/19/2013  Juan Martinez Carcamo  v.  Eric H. Holder, Jr.
  U.S. Court of Appeals Case No:  11-3860
  Petition for Review of an Order of the Board of Immigration Appeals    
  [PUBLISHED] [Riley, Author, with Colloton and Gruender, Circuit Judges]
  Petition for Review - Immigration. Assuming petitioners' accounts of
  the ICE officers' conduct are true, any Fourth Amendment violations they
  suffered were not sufficiently egregious to entitle them to the remedy they
  seek - exclusion of decisive evidence in their civil removal proceeding;
  while both the IJ and the BIA erred in their treatment of petitioners'
  testimony, the errors did not require a remand because they were not
  prejudicial since they were relevant only to petitioners' Fourth
  Amendment claims and did not go to the factual finding upon which they
  were removed - namely, that they are aliens who entered the U.S. without
  proper admission; the court had no jurisdiction under 8 U.S.C. Sec. 1252
  over petitioners' claim that the IJ deprived them of due process by failing
  to shift the burden of proof once they made a prima facie case of a Fourth
  Amendment violation as they had failed to raise the issue at the
  administrative level.

123546P.pdf   04/19/2013  Union Electric Company  v.  AEGIS Energy Syndicate 1225
  U.S. Court of Appeals Case No:  12-3546
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Per Curiam - Before Bye, Arnold and Benton, Circuit Judges]
  Civil case - Insurance. Endorsement in which the parties agreed to
  submit to the jurisdiction of the courts of the State of Missouri entirely
  supplanted the agreement's mandatory arbitration provision.

Ninth Circuit:

ROBERT RADCLIFFE V. EXPERIAN INFORMATION SOLUTIONS
USA V. ROBERTO BUSTOS-OCHOA
USA V. EDDIE MCCLENDON

Tenth Circuit:

[Hard to tell from the website which decisions were published and which were unpublished.]

Eleventh Circuit:

In re: Warren Lee Hill, Jr.
Darwin Gilberto Ruiz-Turcios v. US Attorney General

DC Circuit:

Owner-Op Indepen Drivers Assoc v. FMCSA
International Brotherhood of Teamsters v. DOT
USA v. Robert Legg
David De Csepel v. Republic of Hungary

Federal Circuit:

LAZARE KAPLAN INTERNATIONAL, I v. PHOTOSCRIBE TECHNOLOGIES, INC. [OPINION]
ASPEX EYEWEAR, INC. v. ZENNI OPTICAL INC. [OPINION]
WIND TOWER TRADE COALITION V. U.S. [ORDER]

Next update tomorrow afternoon.  Today's and tomorrow's.  Long form.

-MB

Next update Tuesday AM

Will cover Friday and Monday.

-MB

No update tomorrow

Friday's posted on Saturday.

-MB

Fourth Circuit -- US v. Trino Medina-Campo

Sentencing -- whether solicitation is a qualifying prior for a certain enhancement.

US v. Trino Medina-Campo

Federal Circuit -- K-TECH v. TIME WARNER CABLE & DIRECTV [OPINION]

Patent pleading standards.


K-TECH v. TIME WARNER CABLE & DIRECTV [OPINION]

Federal Circuit -- MARIE CONFORTO v. MSPB [OPINION]

Agency correctly held that it did not have jurisdiction over claim, as petitioner did not establish that she was forced to retire.

Dissent: No jurisdiction for Court in mixed-motive cases.


MARIE CONFORTO v. MSPB [OPINION]

Ninth Circuit -- USA V. MICHAEL BARNES

Parole hearing was sufficiently custodial as to extrinsic matter to trigger Miranda protections.

Agents inappropriately delayed giving the warnings.  ("Two-step")

Admission of confession not harmless error.

USA V. MICHAEL BARNES

Ninth Circuit -- USA V. MARIANO ANGUIANO-MORFIN

Jury instruction that translates statutory requirement of willfulness with "voluntary and deliberate" passes muster.

No plain error in prosc. questioning of defense expert witness as to the veracity of deft, given that the expert's conclusions implicated deft's veracity.

USA V. MARIANO ANGUIANO-MORFIN

Eighth Circuit - -David Heide v. David Juve

Bankruptcy --

After initial agreement, there was no implicit affirmation of solvency and terms with each re-extension of credit sufficient to constitute a fraudulent representation that would except the loan from dischargeability.

The deal made in Vegas to buy used cars was a one-off between the two parties, and therefore a personal debt.

David Heide v. David Juve

Seventh Circuit -- USA v. Johnnie Collins

Excessive force during the arrest still not a reason to exclude the evidence in the Seventh Circuit.

USA v.   Johnnie Collins

Sixth Circuit -- USA v. Kenneth Rose

Fourth Amendment --

Warrant resulting from an affidavit that omitted the deft's address is valid under the good faith exception.

No error in denial of Franks hearing requested because of  inconsistencies in witness statements -- the underlying events have been proven by other evidence.

Pr0n statute still valid under interstate commerce power.

USA v. Kenneth Rose 

First Circuit -- Rocket Learning, Inc. v. Rivera-Sanchez

Qualified immunity for gov't official who issued standards for education providers.

Insufficient proof of bad faith for equal protection challenge to allegedly discriminatory rulemaking.

Relevant certification is not a license, so insufficient property interest for a procedural due process claim.

No commercial free speech claim based on providers' inability to sufficiently tout their products.

Rocket Learning, Inc. v. Rivera-Sanchez 

First Circuit -- Johnson v. University of Puerto Rico

Discrimination / Title VII

A Ph.D is a facially reasonable and legitimate requirement for a tenure-track position at a university.

Johnson v. University of Puerto Rico 

First Circuit -- Woodward v. Emulex Corporation

FRCP -- Age discrimination suit.

Motion to compel was duplicative of information requested elsewhere.  Interrogatories similarly properly limited.

No error in quashing of depositions, given lack of notice.

Layoff not pretextual, as the company's limitation of sales in the area was a signal of reduced commerce, not an attempt to minimize the employee's role.

No valid comparators (or "congeners").

Corporate statements not proof of animus.

Woodward v. Emulex Corporation 

First Circuit -- US v. Whitlow

Offender registration --

Delegation to the AG of rulemaking power on retroactivity was constitutional.

Agency notice-and-comment did not assume the result.

Obligation under the Act to register isn't contingent on the mandate being made retroactive by the registering state.

US v. Whitlow 

First Circuit -- US v. Zehrung

Sentencing -- trial court insufficiently explained justification for sentencing enhancement based on the deft's official position, given that discretion and control are different things.

US v. Zehrung