Wednesday, July 27, 2011

Published Circuit Opinions - July 27

Second Circuit:

 2255 Claim of ineffective assistance of counsel on a declined plea offer should receive hearing where there is a disparity between offer and ultimate sentence, petitioner says that he would have accepted it, and lack of evidence in the record as to factual circumstances of the offer.
First Circuit:

Deft who permits police to reach into his pocket for ID has consented to the search which finds drugs there; Given deft's past record, he likely felt sufficiently free to withhold consent for a search; Clear threats to officers' safety justified handcuffing of deft and a show of force - the Terry stop was therefore not a de facto arrest.

Where the deft has ample notice prior to the trial of the specific crime charged, there is no need to specify the crime in the indictment.

Where contractor has insurance A and is an "additional insured" on sub's insurance B, insurance B has a duty to defend as primary insurer, as sub is not an "additional insured" on insurance A.

Absent an explicit waiver of a state-law right in a CBA, a claim that a general management-rights provision impinges on a state-law right is preempted under S301, as investigation is required into customs and practices of the industry; No third-party standing to enforce provision in contract between two telecoms that all end users must consent to coverage (incl. GPS tracking).

Fourth Circuit:

School can take disciplinary action against student who sets up MySpace discussion board to ridicule another student, as the conduct interferes with the work and discipline of the school.  Interesting dictum:  it was foreseeable in this case that (petitioner's) conduct would reach the school via computers, smartphones, and other electronic devices.

Fifth Circuit:

Remand to state court reversed, as improper joinder (restoring diversity jurisdiction) was established at the time of removal to federal court, depite the fact that the joinder had not been timely challenged in the state proceeding prior to removal.

Sixth Circuit:

Where specific , legitimate discovery requests likely to establish the veracity of a prisoner's pro se claim are outstanding, a court cannot proceed to summary judgment against the claim.

Seventh Circuit:

Title VII retaliatory discharge claim should survive summary judgement where plaintiff has vociferously complained about past discrimination, and management has accused him of playing "the race card."

Immigration - a derivative beneficiary's age is frozen under CSPA at the time of denial of petition - subsequent to the primary applicant's cure of the petition, the derivative beneficiary remains eligible for reclassification.  Non-precedential  agency holding otherwise not entitled to Chevron  deference, and insufficiently persuasive under Skidmore.

Allegedly improper tasering in the course of an arrest does not take a 'nominal damages' instruction off the table, as the injury might have derived from a justifiable part of the taserin.'

District Court:  Out of state claimants have no standing under Illinois law for a class-action against an allegedly illicit biz - remand to state courts for adjudication of the claim. 
Easterbrook:  What you meant to say was that plaintiffs had standing, but as a matter of law could not successfully argue for the application of Illinois law under choice-of-law - dismissal with prejudice establishes this.  Class certification would be the first time that out-of-staters could be punted.  Vacated and remanded.

Where the funds go to general-use, a local flood-prevention assessment can be a potentially discriminatory railway tax under the 4-R Act; Rooker-Feldman doesn't apply where petitioner was not an actual party in prior state adjudication; Court has authority to issue injunction, even without demonstrable inequity in assessments and property values, given recent Scotus pronouncements on Act.

Eighth Circuit:

Where medical insurance policy requires an independent medical examination prior to grant of claim, the reasonableness of this requirement is not a matter for the jury.

No 4A interest offended by subpoena of electrical utility records; State law does not establish expectation of privacy for these records; Court is not required to grant hearing on warrant obtained by reporting an inaccurate electrical use.

Housing complex in a state municipality is not a 'dependent Indian community' for purposes of determining jurisdiction.

Ninth Circuit:

Where gov't has in open court solicited testimony confirming someone's status as a confidential informant, the cat cannot be put back into the tube of toothpaste - gov't can no longer refuse to confirm/deny their status.  Concurrence: Dangerous to allow AUSA's this much power - DOJ rulemaking would have been a better route.

Settlement negotiations can be considered when determining level of success for award of fees; judges can take judicial notice of prevailing hourly rates; Time spent briefing moot issues may be excluded from payment

No mandamus, as there is no controlling caselaw holding that a district court must make a decision on an exemption from arbitration before ordering the entire dispute to arbitration. 

Tenth Circuit:

Where buden of tax on extraction of oil and gas on Indian land falls largely outside the reservation, the tax is not preempted.  Dissent: District Court found that the tribe benefitted.

 District Court committed plain error in applying categorical approach to drug priors in calculating sentencing, but not reversible, as deft has burden to prove that categorical approach resulted in higher sentence than otherwise.  Circuit split flagged.

Sentencing challenge moot as petitioner is no longer in prison, and court cannot modify supervised release order.

Sufficient expert testimony to establish damage to cheese while stored in third-party warehouse;  Jury instruction did not expand the potential theories of negligence beyond the contractual term at issue; Subsequent remedial measures properly exluded, as they weren't probative of relevant facts; Setoff of recovery by amount recovered in another action required under double recovery bar - not necessarily because of parties' covenant or collateral source rule; Attorney fees properly included in offset.

Abuse of foster kid by other foster kid - battery exception to qualified immunity upheld; but no liability under S1983 as supervisory liability not established.

Colorado "Sexual Contact - No Consent" statute is a forcible sex offense for purposes of subsequent sentencing.

Fraudulently obtained funds forfeited when deft turned himself in and admitted the crime to an "otherwise unsuspecting" prosecutor do not reduce funds at issue for sentencing purposes; Fund management is 'position of trust' for sentencing purposes.

 Eleventh Circuit:

Voting machines are not "facilities" under the ADA.

Under sovereign immunity, state child-support enforcement agencies cannot be held in contempt for violating a federal bankruptcy court discharge order.
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Tuesday, July 26, 2011

Published Circuit Opinons - July 26

Second Circuit:

No right to jury trial on question of whether prisoner didn't exhaust administrative remedies under PLRA.

Where deft forces gov't to a Fatico hearing on a disputed question in sentencing, this is not grounds for the govt not to file for a sentencing reduction based on acceptance of responsibility.

Where the one year AEDPA habeus limit is tolled, petitioner need not demonstrate reasonable diligence outside of the tolled period (unless such diligence would have allowed the petitioner to file after the end of the potentially tolled time).

Misstatement in registration documents for an IPO is material where it is of distinct interest to investors.  Asset in quesiton was troubled loan - District Court held that adequate collateralization meant the lack of warning at IPO was not material - Circuit explicitly disclaims this bright line test.

 Where parties have signed a forum selection cause which permits suit in a different federal district, the court hearing the case in another district may dismiss via 12(b)1,3,6 - it is notcompulsory on the court to transfer to the other venue.

First Circuit:

Tax - a "section 197 intangible" includes any covenant not to compete entered into in connection with the acquisition of any shares - substantial or not -- of stock in a corporation that is engaged in a trade or business. 

"Buy your client a Dayrunner," cont'd: Court upheld dismissal of deft's attempt to withdraw guilty plea.  Deft claimed that prosecutor's inflated sentencing predictions had an unfair in terrorem effect.  The statements were, however, made several months after the plea.

Fourth Circuit:

After a contested period where union dues revocations were processed without a union sign-off, arbitrator's resolution need not provide for cancellations of revocations processed without signoff, as no statute compels it.

Sixth Circuit:

S1983 - Qualified Immunity granted, as (1) parking car behind plaintiff's car in a driveway isn't categorically a seizure, (2) Stopping in response to a police officer's request to talk isn't categorically a seizure (Alternative holding for both - it was a valid Terry stop.)  (3) Use of handcuffs kosher in Terry stop where officer fears for safety (4) not adjusting tight cuffs does not violate clearly established federal law where no injury is apparent.

Seventh Circuit:

An Uruguayan Sociedad Anónima is a corporation (not partnership) for purposes of diversity jurisdiciton; Where the choice-of-law clause indicates that Spanish law should apply, but the lawyers don't brief it, the forum should apply its own law; Services provided beyond the parties agreement do not deserve enforced quantum meruit renumeration.

 Trademark cannot be licensed in bankruptcy proceding without the consent of the trademark owner - this is (now) a background presumption of contract law; A service agreement is not a de facto trademark agreement for the purpose of assignment restrictions where there are specific trademark provisions within the four corners.

 While architectural drawings recreated from memory and paper notes qualify as bona fide copies for registration purposes, plaintiff's designs were insufficiently original for copyright protection (court mizxes the question of originality with 'copying in fact' analysis).

GD Corp.  contracted with relator to set up telecoms contracts in Greece - when that went sour and Greece later purchased aircraft from GD secured by US money, realtor filed qui tam suit under the False Claims Act alleging contract-type misdeeds by the corporation.  TKO'd at summary judgment.

Eighth Circuit:

Crim - sufficient evidence, inclusive of jailhouse snitches; no description of why admission of contested evidence would be substantial error; ineffective counsel claims best not pursued on direct appeal.

Brief, unelucidated comment by victim that abuse recurred is insufficient for conviction on
additional counts; no harm on admission of note written to counselor at interview where victim is available for cross; insufficient proof on voir dire challenge; deft has no legitiamte expectation of finality in sentence as announced at sentencing (supervised release was added later).

Ninth Circuit:

We hold that the District Court prejudicially erred in refusing to instruct the jury that, for purposes of proving a Monell [4A excessive force] claim, a custom or practice can be supported by evidence of repeated constitutional violations which went uninvestigated and for which the errant municipal officers went unpunished. 

Parties can opt for non-federal arbitration law in agreements; Choice of law clause on body of arbitration law insufficient - clear and unmistakable evidence required (the fault here was that the agreement didn't say that the chosen body of law would decide if the question was arbitrable in the first place) - circuit split signalled; general negligence theory of present  case means that arbitration on meaning of specific terms of the agreement is not called for.

Today we clarify that a plaintiff does not have to prove that an airline violated an Federal Aviation Administration (“FAA”) standard to establish that there was an “accident” under Article 17 of the Convention of the Unification of Certain Rules Relating to International Transportation by Air (“Montreal Convention”).

Arranger liability under CERCLA struck down - manufacturer of machine used in dry cleaning has no liability for users' habit of dumping out the waste products i the drains.  Special concurrence: Statute requires that the offender own the substance in question.

Insufficiency of representation of interests for purposes of determining the merits of an intervention can be established where one party has adopted its litigating position in order to comply with a previous court order.

Tenth Circuit:

Prior tribal misdemeanor convictions can count for habitutal offender status, as there's no Sixth Amendment issue, since the 6th Amendment doesn't apply to the tribes - circuit split signalled; DP challenge to tribal priors does not violate principles of Third Restatement of International Law;  Equal Protection challenge TKO'd under Rational Basis.
 As the sentence was "realisitcally imaginable," post-mandatory-guidelines over-guidelines sentence upheld against 5A Due Process challenge.
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Monday, July 25, 2011

Published Circuit Opinions - July 25

Third Circuit:

Jesus Alberto Flores-Nova v. Atty Gen USA
Challenge to INA 'continuous prescence' requirement - no Chevron deference necessary, as Congress has clearly spoken;  No Equal Protection violation, as there's a rational basis for treating nonresident aliens differently; International Law challenges under OAS / IACHR TKO'd as IACHR opinions are not binding on US courts; Customary Int'l law challenge under Rights of the Child does not trump on-point statute.

USA v. Ruben Mitchell
 As arrestees have a diminished expectation of privacy in their identities, and DNA collection from arrestees serves important law enforcement interests, we conclude that such collection is reasonable and does not violate the Fourth Amendment. (reversing District Court - arrest was for cocaine possession with intent to spread around.)
Dissent: information contained in DNA goes beyond 'identity' - debate on appropriateness of review under collateral-order doctrine.

Fourth Circuit:

US v. Stephen Digiovanni 
Fifteen-minute Terry traffic stop excessive in scope and duration - consent to seach was not freely given.


Seventh Circuit:

USA v. Berry Carr
Even post-Lopez,  de minimis effect on interstate commerce is sufficient for a Hobbs Act violation (convenience store robbery).


Vatcharee Pronsivaku v. Eric Holder
Immigration hearing protections were sufficient - opportunity to present case, rebut gov't's case.  Petitioner deported despite extensive assistance to DEA.  'Dura lex, sed lex.'

Union Pacific Railro v. CTA
 Even where a local railway holds an effective lease on a right-of-way, an attempt to secure precisely the same control by condemnation is an impermissible regulation, one preempted by the ICCTA.

Ninth Circuit:

GREGORY GRANTHAM V. TIMOTHY CORY
Loan by predecessor in interest established lender as co-venturer, precluding later subrogation.  Dictum: foreclosure on property can be termed 'payment' of loan.

USA V. DAVID YEPEZ
Comity requires that federal sentencing decisions honor state nunc pro tunc orders retroactively removing deft from probationary status at the time of the offense (not the time of sentencing) - circuit split flagged.
Dissent - gives state judges control over federal sentencing.

DION STARR V. COUNTY OF LOS ANGELES
 Where plaintiff in a S1983 action makes detailed factual allegations and a plausible suggestion that a supervisor acquiesced in the unconstitutional actions of subordinates, pleading requirements of 8(a) are satisfied.

MARVIN HORNE V. DEPARTMENT OF AGRICULTURE
Administrative holding that raisin growers must contribute some of their product to a distinctly unrenumerative industry reserve stock supported by substantial evidence / not arbitrary & capricious; Not a Taking, as (1) only triggered by decision to sell crops in interstate commerce, (2) no physical taking, as it is merely a fixed percentage of the crop.  (Question of regulatory taking not briefed.)   Fines not Excessive.


Tenth Circuit:

Rural Water Sewer v. City of Guthrie
Federal statute provides that where a local association is in debt to the federal gov't for installing a water system, they enjoy certain competitive protections.  Held: the boundaries of the area served by such systems is determined customer-by-customer - the threshold is water provision, not enough water provision to put out a fire.  Cournterclaims roundly dismissed.  Some 'we don't need jurisdiction to rule on merits' wonkiness going on in the second half of the opinion.

Pater v. City of Casper, Wyoming
Placement of Notice of Assessment (effective lis pendens - not a lien, as property cannot be taken without additional processes) on title can be a deprivation of property interest

Merrifield v. Board of County Commissioners
Letter from department head recommending dismissal is sufficient notice for procedural due process; First Amendment claims of government (as employer) retaliation for 'associating with' legal counsel are subject to the 'matters of public concern' check. (Circuit split flagged.)  Pendant state law claims on matters of first impression are best resolved by the state courts.

Eleventh Circuit:

Juan Carlos Chavez vs Sec, Florida Department of Corrections 
Even in a death penalty case, 'garden variety' negligece and neglect by legal counsel is insufficient to equitably toll the 1 year habeus rule - egregious misconduct is required.  Thou shalt not kill.
Posted by at

Friday, July 22, 2011

Published Circuit Opinions - July 22

Second Circuit:

USA v. Gonzalez
No error in refusing to allow deft to withdraw guilty plea shortly after retaining second counsel; no tracing requirement in a fraud case to establish the 50-victim sentencing bump; remanded for determination of accurate restitution, as some victims might have received benefits from the misappropriated donations (program ads, etc.).

Jackler v. Byrne
Trainee police officer's refusal to make a false statement in an official record is speech as a citizen on a matter of public concern, and therefore protected by the First Amendment.

USA v. Jennings
A probation officer (athough an Article II official) can actively aid in the investigation of crimes.  

Thomas v. iStar Financial, Inc.
Punitive damages in employment case of 1.6m rejected as unconsitutional; process of conditional remittur  for punitive damages upheld; where dmages are on mixed state and federal claims, federal interest rates apply.

Poulin v. Balise Auto Sales Inc.
No valid claim stated under TILA in putative class action - the statute is a disclosure statute, not an unfair pricing statute, and there was no evidence of nondisclosure. 


First Circuit:

Minor v. Herman 
Receipt of payments from a partnership by the estate of a deceased partner does not constitute a partnership at will;  Motion to reopen a judgment for excusable negect is not barred by rule requiring courts to have continuous jurisdiction where the action has been dismissed sua sponte in the interval; Reestablishment of jurisdiciton provides sufficient ancillary grounds to enforce prior agreement; Settlement of claims cures service problems.

State of New York v. Amgen, Inc. 
State of California v. Amgen, Inc
State of Illinois v. Amgen, Inc. 
State of Georgia v. Amgen, Inc. 
State of Indiana v. Amgen, Inc. 
Illegal Big Pharma kickbacks can cause misrepresentation of a precondition of payment by Medicare, enabling state qui tam claims under the False Claims Act.

Evans v. Gerry 
Statutory change during pendency of criminal trial which allowed the State to petition for sentencing review does not violate clear Supreme Court precedent on ex post facto prohibition.

Cahoon, Jr. v. Shelton Where statute is ambiguous, no burden on municiplity to continue specific retirement medical benefit absent clear estoppel.

Third Circuit:

Eddie Wilson v. US Parole Comm 
Aggregation of DC sentence and Federal sentence arises out of a process issued by a state court, and petitioner therefore needs a COA to reach Circuit Courts of Appeal.

Natl City Mtg Co v. Brian Stephen
Where, subsequent to a federal bankruptcy action, ancillary and pendant issues of state jurisdiction arise (e.g., motion to divest lien, motion to stay the setting aside of a court-ordered sale), they are properly handled by the federal court.


Fifth Circuit:


Wells Fargo Bank NA v. Dorothy Stewart, et al
Where a debtor's challenge reveals systemic problems in a creditor's accounting, and that creditor has other claims pending in the District of the court, an injunciton requiring re-accounting is not justified absent broad, class based claims or a proven pattern of conduct in other cases.

USA v. Chad Piazza
New trial based on new affadavit - not a consequence of deft's lack of due diligence at trial where the omission was not strategic and the witness was not readily available.  (Broad reading.)

Sixth Circuit:

USA v. Xavier Priester
Pre-Spears case remanded for examination of unfairness of crack/cocaine ratio.  Dissent: No error in record.

Seventh Circuit:

Ramon Marin-Garcia v. Eric Holder
Potential deportee has third party standing to assert that his children will suffer harm upon his deportation; current legislation on point is, however, kosher.

Nick Jakich v. U.S. Trust
No fraud on the court in past bankruptcy sale where the alleged misrepresentation was not by counsel.  Poz standard on appropriate level of fraud to reopen a case: The answer is the kind of fraud that ordinarily couldn’t be discovered, despite diligent inquiry,within a year, and in some cases within many years—cases in which there are no grounds for suspicion and the fraud comes to light serendipitously.

Continental Casualty v. Sycamore  Springs Homeowners Association
Where settlement agreement does not differentiate between past remedy and capitl improvements for future, no obligation on insurance company to contribute.

USA v. Donald Brucker
Mandatory minimum sentences upheld against Due Process & Equal Protection challenges.

USA v. Carl Adams
Child pr0n -  above-minimum sentence upheld on grounds of deterrence.

USA v. Jadrion Griffin
When there is no cause fror a traffic stop, drugs discarded during low-speed chase are not fruits of seizure, as seizure does not occur until the stop is made.

Lisa Pakovich v. Verizon LTD plan
ERISA claim moot, as beneficiary had recieved the entirety of her request to the plan (District Court had provided for a continuing benefit), but attorney's fees can be considered under supplementary jurisdiction.


Eighth Circuit:

Gina Jenkins v. Donald Winter
Naval gender harrassment claims - dismissed for fialure to exhaust - poor info does not equitably toll or estop the deadline, as 'general knowlege' of the harm and the remedy suffices.


Beverly River v. Edward D. Jones Co.
Denial of beneits under intoxication exclusion referring to local standards of bein' drunk upheld.


Richard Angevine v. Anheuser-Busch
Emailed assertion from employer denying a specific benefit not sufficient for the repudiation exception- administrative remedies must be further exhausted.

United States v. Kendrick Butler
A paper check is not a 'device' for the 'device-making' sentencing bump.


Charles Green v. Union Security Insurance Co.
District Court erred in fnding a incontrovertable disability upon diagnosis of fibromyalgia.

United States v. Lorena Cervantes
Sufficient circumstantial evidence to convict deft o MJ-growing conspiracy; Admission of prior inconsistent statement by co-deft doesn't violate Crawford/ Confrontation Clause.

United States v. Arturo Padilla Garcia
Sufficient evidence for meth convition; phone number given during unrelated Terry stop admissible, despite prosecution's pretrail claim to have no statements of confessions; jury contamination ruling upheld.

United States v. Paul Riesselman
Incomplete warrant given to deft at time of search does not preclude the fruits of the search from admission at trial  - 4A & FRCP challenges.


Ninth Circuit:


CURTIS JOHN-CHARLES V. STATE OF CALIFORNIA
Habeus denied as neither failure to appoint counsel after initial waiver nor counting a juvie conviction as a "strike" violates clearly established federal law as established by Scotus.




USA V. MABELLE DANN
Worst Nanny Employer Ever.  Sufficient evidence for all relevant convictions, incl. forced labor.  HOWEVER, accrued back child support due the deft's kids cannot be attached as restitution, as the parents are only the conduits of the funds.

DC Circuit:

(Prepared from intros - TMB wants to get to the gym.)


Lake Carriers' Association v. EPA
EPA consideration of state pollution discharge requirements in a nationwide permit upheld, as EPA has insufficient power to challenge state CWA findings.

USA v. Mansour Salahmand
Doctor without license gets the 'vulnerable victims' sentencing bump, despite the fact that the victims were of the doctorin', not the licensin'.

Moath Al Alwi v. Barack Obama
Sufficient evidence that habeus petitioner 'was part of' (as distinct from 'provided support to') Al Quaeda; procedural challenges to denial of extra time to file and abridged discovery procedures TKO'd.

Business Roundtable v. SEC
Exchange Act Rule 14(a)11 (shareholder rights) struck down for lack of APA proccesses. 


Nazul Gul v. Barack Obama
Guantanomo inmates transferred to other countries have no Article III standing to continue their habeus claims.

Otay Mesa Property, LP v. Department of the Interior
Four tiny shrimp in a tire rut insufficient grounds for designating 143 acres as protected property.

Federal Circuit:

IN RE LOVIN 
In sum, we hold that the Board reasonably inter-preted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art. 
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Thursday, July 21, 2011

Published Circuit Opinions - July 21

Second Circuit:

IIn a Title VII claim, back pay is not implicitly awarded in the compensatory damages; Earlier order describing state law claims as abandoned cannot me modified absent a change in the facts or the law - the law of the case binds; Where there some evidence that attorney rates shoudl be higher, but some courts in the district continue to award the lower number, the court's award of the lower value is not an abuse of discretion.

Third Circuit:

In determining domicile, absent clear indications of fabrication, a District Court cannot completely disregard an affidavit from a party claiming that she intends to return to another state soon - though self-serving, it might very well be true.

Fourth Circuit:

Qualified immunity for prison officials who performed invasive searches of prison employees based on an initial scanning by a machine capapble of detecting extraordinarily minute quantities of drugs.  Omninous dictum: For several reasons, nothing in the Supreme Court’s decisions or in our own indicates that a positive Ionscan result cannot generate reasonable suspicion.


Fifth Circuit:
Bankruptcy - Disclosure Statement can be consulted to determine if a post-confirmation debtor has standing; Where the Plan and Disclosure Statement specifically reserves the right to pursue actions against named pre-petition shareholders, the post-reorganization entity has standing to pursue the actions; Not disclosing the actions on Schedules does not estop the claim; Where the Confirmation Order retains the right of action, judicial approval of the Plan does not bar the action under res judicata.

Seventh Circuit:

Where trial court impanelling process means that the (mandatory) alternates-only peremptory strikes cannot be used, no reversable error where counsel agreed to the scheme;  Testimony as to deft's prior check-kiting scheme more probative than prejudicial; Suggesting in opening that witness may lie opens the door to taped admission by deft to (wired) witness;  Prior photo ID kosher, where deft could recall witness and cross during deft's case in chief; Remembering that someone once sent you a letter isn't enough evidence to support a 2A restoration claim; sentencing stuff.

Panoply of rulings in foreclosure case upheld, e.g. - Where issues and claims previously litigatged in state court are collateral to the federal claims, Rooker-Feldman does not bar; Summary Judgement appropriate under Celotex where claim is possible, but unsupported. You get the idea.

Summary judgmennt appropriate in Title VII suit - no reasonable jury would find that the animus was gender-based; BUT proximity in time of certain adverse actions to filing of the suit make possible retaliation an issue for the jury.

Poz:  Deft cannot challenge remand to state courts after (deft-opposed) removal to Federal Bankruptcy Court when the complaint, as amended, is determined by the Bankruptcy Court and reviewing Federal District Court to be not within jusridiction.  (Deft apparently failed to argue supplementary jurisdiction to bankruptcy court, making the punt a "disavowal," not a "relinquishment.")

Eighth Circuit:

Compliance with state tax law admissible where the charge is not complying with similar federal law; tax avoidance can be charged even without a prior assessment; not filing the appropriate form is a valid way of prosecuting avoidance; remand to determine if employees given bogus deductions actually prepared returns.

Emails, phone calls, and partial payment of prior claim in one state insufficient purposeful availment for specific personal jurisdiction;  insufficient agency over local corporation for general jurisdiction; claims too speculative for further discovery.

Keeping a gun in the same house where illegal drugs are kept = sentencing bump; If your wife drives you to the deal, you get the 'organizer, manager, or leader' bump; testimony about amount of drugs sold valid for sentencing, even where witness recieved sentencing consideration; sentencing reduction for copping to the deed not manadatory where subsequent statements contradict the guilty plea.

Ninth Circuit:

Immigration - Reversal given events described as "the epitome of ineffective assistance of counsel."

"Counterfieting" under the INA extends to trademark counterfieting. 

Tenth Circuit:

Death penalty deft - habeus granted, remand on claim of ineffective assistance of counsel, evidentiary hearing on competency denied.  Thou shalt not kill.

Federal Claims:

DURAMED PHARMA v. PADDOCK LABS 
A prosecution history estoppel presumption obtains when disclosed information becomes the basis for an equivalence claim, and even a general indication of utility in the disclosure is enough to establish foreseability of the eventual equivalent use.  

 
Posted by at

Wednesday, July 20, 2011

Published Circuit Opinions - July 20

Second Circuit:

Sovereign default - reversion of collateral in debt restructuring barred by attachments of other creditors - even though the intent is to use the collateral for a new bond issue, the temporary possession by the nation makes it vulnerable to secondary attachments.  Concurrence - the rollover might give seniority to the primary bondholders over the secondary attachments; possibly not a true reversionary interest.

Injunction upheld requiring Transit Administration adjudicatory hearings to be open to the public - First Amendment applies to administrative hearings.

Fifth Circuit:

Per curiam blip - remanded based on SCOTUS vacation.

Seventh Circuit:

Dismissal upheld, as police officer was not properly served, plaintiff's attempt to invoke balance of hardships & claiming that those in blue are notoriously difficult to serve does not suffice.

Even where negotiations superficially continue, their validity as bona fide negotiations is a question for trial, inappropriate for summary judgment.
Government worker has no property interest impinged when county reclassifies position as part of (small, but) legitimate governmental reorganization and hires her to fill the newly classified position.

Immigration charges, but a very broad holding on eligibility for 'fast track' correlative sentencing reduction.  Burden is on deft not only to stipulate to facts & waive all rights, but also to examine those districts that have 'fast track' programs and compare similarly situated cases there.

While the Illinois domestic battery statute is probably not categorically a violent crime after Johnson, the 'battery causing physical harm' statute qualifies.

Eighth Circuit:

§ 1327(a) affords the confirmed plan res judicata effect and bars Ms. Burnett's attempts in a collateral state court proceeding to expand her entitlement to relief to include interest on her prepetition spousal support.

Standard for purposes of the sentencing bump for assault on an arresting officer is common-law assault, so a deft in a fetal position in a creekbed being bit by police dogs who appears to raise an arm holding a gun has menaced, and therefore assaulted, the officers.

 Government is not required to prove that an alien remained within the country for the entirety of the time between his illegal entry and his apprehension.

Ninth Circuit:

Barring 'illegal, unlicensed, and false practices' is too vague to pass muster as an injunction; where the unlicensed business practices harmed a company, the company has standing; where a contract is champertous, (absent contrary recognition of a tort by the state supreme court) there is no basis for a third party to recover damages.

 When determining competency for federal habeus actions, the common-law standard is that a preponderance of the evidence must establish competency; speedy trial issues should be addressed under S1983, not habeus; there is no clearly established federal law, as determined by the Supreme Court of the United States, to a speedy appeal.  Death penalty case, btw - Thou shalt not kill.

Tenth Circuit:

Bar on prisoners recieving explicit material is implemented by administrative regulation, making a Constitutional challenge to the Act only valid where it is embodied in the implementing regulation; Action is Constitutionally moot, as it was an institution-specific ruling, and the prisoner is no longer at the facility; Prudential considerations also count against validity, as BOP doesn't yet know where they will send peitioner; BUT 'Capable of repetition, yet evading review' doesn't apply, as the prisoner has no certainty that he will be transferred out of the Circuit; 'Voluntary cessation' does not apply, as the restrictions have ceased due to prisoner's transfer out of the facility.

Eleventh Circuit:

When a pro se deft declines to testify in his own defense, citing in a court-initiated colloquy the fact that he has no lawyer to question him, the court is required to inform the deft of his right to testify in narrative form.
Posted by at

Tuesday, July 19, 2011

Published Circuit Opinions - July 19

(TMB is very short on time tonight.  This stuff is much more likely than usual to be way off base.)

Second Circuit:

Wu v. Holder
Alien under a stay of deportation who ignores a "bag & baggage" letter does not forfeit his appeal under the fugitive disentitlement doctrine - would give an executive order the force of a court order.  Doctrine is an equitable precept, should vary with circumstances.

United States v. Vilar
No stay of appeal in order to allow deft to file a S2255 habeus collateral attack, but six months' extension allowed for general appeal prep.


Third Circuit:

Roberto Lima v. Newark Police Dept
Extrinsic evidence (the email to which the offer was attached) not admissible to determine whether a Rule 68 offer to settle includes costs.

Fifth Circuit:


Colony Insurance Co. v. Peachtree Construction Ltd
Under Texas law, an insurer's duty to indemnify can arise in a case in which it has no duty to defend;  an excess-liability insurer can maintain a subrogation claim against a primary liability insurer after the insured has been fully indemnified.

Jete Crosby v. Louisiana Health Service
Discovery in an ERISA action should be allowed to go beyond the administrative record where appropriate.

John Kinsel v. Burl Cain, Warden
AEDPA bars successive habeus filing when trial court finds recantation of key witness not credible

Michael Conway v. USA
CEO of airline held to be "responsible person" and therefore liable for 8M of airline's unpaid taxes.

USPPS, Ltd. v. Avery Dennison Corp., et al
Attorney conflict of interest case punted to Patent court; earlier ruling by court did not create an unstated 'rule of the case' holding of present court's jurisdiction.

Wal-Mart Stores, Inc. v. Qore, Inc.
Indemnification provision applies to award of attorney's fees against the indemnifier; award of fees should be closely examined to determine if the action arises within the specific indemnification.

USA v. William Breland, Jr.
Rehabilitation can be considered in revoking deft's supervised release.

Estate of Mable Dean Bradley v. Royal Surplus Line
Supplementary insurer's duty to defend does not arise until actual depletion of first policy; generally inadequate health care is not an ongoing injury for the purpose of identifying whether injury happened within policy's effective dates.

ANR Pipeline Company, et al v. Louisiana Tax Commission
Federal courts barred from considering state's (costly) re-valuation of pipelines, given Tax Injunction Act, and that state courts had considered the constitutional claims.

Sixth Circuit:

Stanley Adams v. Margaret Bradshaw 
Death penalty - method of execution challenges can be brought in habeus.  Thou shalt not kill.

USA v. Edward Fisher
Conviction for fraud upheld against evidentiary admission and sufficiency challenges.

Tracy Cowan v. Clarice Stovall 
Ineffective assistance of counsel habeus petition was timely.

Seventh Circuit:

Dana Woods v. Commissioner
Priosn policy barring pen pal solicitation upheld.

USA v. Charles States
Crim - Statements at time of arrest properly admitted

Milton Luster v. Illinois Dept of Corrections

Eighth Circuit: (Clerk summaries)

Brian Buckner v. Michael J. Astrue -
Civil case - Social Security. ALJ's findings concerning claimant's mental
impairments were supported by the substantial evidence on the record as a
whole; credibility findings regarding claimant were not erroneous; while
the ALJ erred in not expressly addressing the credibility of claimant's
girlfriend's statement, the error did not require remand as it had no
bearing on the outcome; challenge to hypothetical question posed to the
vocational expert rejected.

SEC v. Michael Shanahan, Jr.
Civil case - Securities. District court did not err in granting defendant's
motion for judgment as a matter of law at the close of the SEC's case on
the ground that the SEC had failed to prove the required elements of
scienter and negligence with respect to its claims that defendant had
violated securities law by participating in the grant of backdated "in-the-
money" stock options to corporate executives.

Southern Wine and Spirits, etc v. Mountain Valley Spring Company
Civil case - contracts. District court did not err in finding the
distributorship contract between the parties contemplated the duration of
the relationship and agreed to a term that ends only by mutual consent or
specific acts of default; as such, the district court did not err in finding
the agreement was for a perpetual term and not for an indefinite term;
district court did not err in denying defendant's motion for judgment as a
matter of law on plaintiff's claim for implied covenant of good faith and
fair dealing; however, the evidence was sufficient to support defendant's
counterclaim that plaintiff breached the implied covenant of good faith and
fair dealing, and the district court erred in setting aside the jury verdict
and granting plaintiff judgment as a matter of law; that portion of the case
is remanded, with directions to reinstate the jury's verdict and award for
defendant


Jody Borgman v. Ryan Kedley
Civil case - Civil rights. The district court did not err in finding that a
reasonable officer could have believed that plaintiff was barred from
entering the casino, and the officer was entitled to qualified immunity on
plaintiff's claim that her arrest for trespass violated her civil rights; the
release contained in the 2005 form plaintiff signed, which voluntarily
banned her from the casino, was valid and enforceable, and it absolved the
casino of any liability on plaintiff's constitutional and state law claims.

Ninth Circuit:

VIRIDIANA V. HOLDER




BEEMAN V. ANTHEM PRESCRIPTION

USA V. WALTER BAGDASARIAN




ROY FISHER V. TUCSON UNIFIED SCHOOL DISTRICT


The rest TK.  Or not.
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Monday, July 18, 2011

Published Circuit Opinions - July 18

Second Circuit:

(W)hen an alleged violation of RCRA depends on the presence or release of a particular contaminant, the NOI must identify the contaminant alleged to be the basis of the violation with sufficient specificity to permit the recipient to identify the specific legal provision alleged to be violated and the activity alleged to constitute the violation

Shares held by second party in a credit-default swap as a hedge against the swap may or may not count towards the first party's 5% threshold for 13(d) - the issue is group formation - remand.  Special concurrence (reads like a dissent, esp. last paragraph):  No investment or voting power  unless there is prior agreement; no intent to evade; comparison of S16 of the Act; not-yet-promulgated SEC authority under Dodd-Frank could resolve.

Fifth Circuit:

Insufficient expectation of privacy to challenge placement of GPS tracker on deft's brother's truck; BUT sufficient standing to challenge tracking of truck when he was in it - constable did not blunder, though, as monitoring wasn't continuous enough to justify a Maynard/mosaic-type claim.

Eighth Circuit:

Title VII case - racial discrimination.  Summary judgment for deft upheld, as scattered incidents didn't suffice for hostile workplace claim; Note to plaintiffs: when filing suit for not being promoted in 2007, be absolutely sure that you weren't promoted in 2007.

Missouri malicious prosecution claim TKO'd by court's pretrial finding of sufficient cause to charge; no comment as to whether a nolle prosequi is a termination of the case in deft's favor.

Ninth Circuit:

Death penalty deft's habeus claims denied - (1) evidence of childhood abuse that deft withheld at time of trial should have been discovered with due diligence; (2) timely PTSD diagnosis would not have been an absolute bar to death sentence; (3) PTSD collateral attack on prior conviction denied as facts were available to deft at trial & insufficient adverse effects on second sentencing.  PTSD "startle reflex" theory insufficient to challenge findings of killing for pecuniary gain & especially heinous method of killing.  Thou shalt not kill.

Plaintiffs given notice of lien, asked for stock to be sold and credited to the debt.  Held: (1) Tax court can hear the case given "any relevant issue" language in S6630 (2) Equitable-ish remedy of crediting the amount that would have been gained by the sale upheld as specific remedy, not (statutorily preempted) award of damages.

Errata - See 4/27.


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Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

Category tags above are sporadically maintained Do not rely. Do not rely. Do not rely.

Author's SSRN page here.