Ninth Circuit -- USA V. GABRIEL ALVAREZ-MORENO

When deft doesn't file jury trial waiver, his bench trial verdict stands, subject to appeal.  Trial court's declaration of mistrial and order of new trial was error as double jepoardy.

USA V. GABRIEL ALVAREZ-MORENO

Ninth Circuit -- KRISTIN ROSSUM V. DEBORAH PATRICK

En banc affirms District Court in brief per curiam.

Dissent (Long) - Federal habeus evidentiary hearing justified.

KRISTIN ROSSUM V. DEBORAH PATRICK

Ninth Circuti -- HECTOR REINA-RODRIGUEZ V. USA

Circuit caselaw rule on whether certain burglary convictions are crimes of violence for sentencing predicate purposes has retroactive effect - it is a new rule, not application of an old rule to new facts.

HECTOR REINA-RODRIGUEZ V. USA

Eighth Circuit -- United States v. Joshua Huerta

When the name on the return address didn't match the FBI/USPS database & the addressee's phone number was nonworking, sufficient grounds for reasonable suspicion.

United States v. Joshua Huerta

Eighth Circuit -- Watkins Incorporated v. Chilkoot Distributing, Inc.

Where one party to existing contract sends form letter to another party requesting updated information due to loss of materials from a flood and encloses a new contract, validity of the signed second contract is a matter for trial.

Watkins Incorporated v. Chilkoot Distributing, Inc.

Seventh Circuit -- Lindquist Ford, Inc v. Middleton Motors

Assignment of quantum meruit was error, as the equities were not with the plaintiff.

[Subtext: damages came back almost identical after initial remand.]


Lindquist Ford, Inc v. Middleton Motors

Seventh Circuit -- Jason Senne v. Village of Palatine,

Going to en banc - prior holding vacated.

Jason Senne v. Village of Palatine,

Seventh Circuit -- State of Michigan v. United States

Rerelease.  See 8/24.

State of Michigan v. United States

Sixth Circuit -- Bobby Sheppard v. Margaret Bagley

Ohio Supreme Court did not incorrectly apply clearly established law in denying Habeus on grounds that a juror consulted outside expert on paranoid schizophrenia during penalty phase.

Summary rejection of state habeus claim  means reasonable basis for denial of claim is the federal standard.

Family history cumulative & irrelevant.


No error in state not considering age (18) at time of offense when re-weighing aggravating factors with mitigating factors after determination of minimal prosecutorial misconduct.

No error in exclusion of juror who would not vote for death if deft was repentant.

Concurrence: Clarification on juror ex parte; evidence should be limited to that obtained for state habeus.

Dissent - Counsel was barred from fully litigating ex parte claim by state procedural rule barring collateral attacks on issues already raised in a motion for new trial.


Bobby Sheppard v. Margaret Bagley


[Thou shalt not kill.  -TMB]

Third Cicuit -- USA v. Barron Walker

Not the brother's jailkeeper - no error on denial of severance on grounds that the codeft brother had escaped from pretrial detention.  

CI's testimony that one of the brothers had carried a gun during a drug transaction and it was visible to the other sufficed for possession and constructive possession. 

Expert testimony that cocaine originated outside of Pennsylvania based on sufficiently reliable methods.

Sufficient evidence for Hobbs Act conviction (robbery in restraint of interstate commerce) where defts robbed first-time drug dealer whose product came from out of state.

No Brady violation where gov't doesn't tell deft that CI was caught with cocaine base in pocket just before sting operation.

USA v. Barron Walker

Third Circuit -- Mt Holly Gardens Citizens v. Twp Mount Holly

Title VIII and 14A Equal Protection challenge to loss of public housing for redevelopment.

Composition of waiting lists for public housing enought to get past summary judgment on disparate impact.

Mt Holly Gardens Citizens v. Twp Mount Holly

Second Circuit -- Serricchio v. Wachovia Securities, LLC

Upon return from service, USERRA claimant who had a large book of commission-based business is not sufficiently reemployed by simply being offered the same commission level.

It is within equitable powers of the court to order return at fixed salary as opposed to commission - no abuse of discretion.

No error in USERRA-specific jury instructions.


Serricchio v. Wachovia Securities, LLC

Federal Circuit -- QVD FOOD CO., LTD. V. U.S.

No error in Commerce's ruling on Vietnamese fish antidumping action.

No obligation to correct ministerial error where the error was clear in earlier proceeding.

Dissent: Yer numbers are wrong.

QVD FOOD CO., LTD. V. U.S.

Federal Circuit -- HOLMES V. U.S.

Tucker Act jurisdiction lies for breach of Title VII settlement agreement.

Circuit split flagged.

No presumption that such claims are monetary, but these are.

There is an inherent reasonability standard in the "inherently unknowable" test - here, plaintiff had no way to know of claim until it came to his attention

HOLMES V. U.S.

Eleventh Circuit -- USA vs David W. Webb

No error in denial of instruction on but/for causation in physician prosecution for patient death from unauthorized meds.  It need only result.

No ineffective assistance, as evidence was slam-dunk.

Concur/dissent - px/cz is the standard.

(Especially quick skim - long decision.)

USA vs David W. Webb

Tenth Circuit -- United States v. Burleson

Warrants check for jaywalking pedestrians during Terry stop was justified, as inter alia, the dog might have been stolen.

United States v. Burleson

Ninth Circuit -- KARUK TRIBE OF CALIF V. USFS

Going to en banc.

KARUK TRIBE OF CALIF V. USFS

Ninth Circuit -- CHEVRON U.S.A. INC. V. M&M PETROLEUM SERVICES, INC.

Spurious counterclaim under Petroleum Marketing Practice Act suffices for award of fees to prevailing party.  

Absent counterclaim, no.

CHEVRON U.S.A. INC. V. M&M PETROLEUM SERVICES, INC.

Ninth Circuit -- GINA FIORE V. ANTHONY WALDEN

Bivvens action against Atalanta-based customs check for prosecution of travelers returning home to Nevada from San Juan with gambling winnings upheld.

Forfeiture order directed at Nevada residents suffices for personal jurisdiction of Nevada courts.

Dissent: No, it doesn't.

GINA FIORE V. ANTHONY WALDEN

Ninth Circuit -- LUIS ROSAS-CASTANEDA V. ERIC HOLDER, JR.

Errata.

LUIS ROSAS-CASTANEDA V. ERIC HOLDER, JR.

Ninth Circuti -- LOUIS VUITTON MALLETIER, S.A. V. AKANOC SOLUTIONS, INC.

Express finding of intent not required for contributory copyright & trademark infringement.

Judge was correct to set aside copyright infringement verdict, as there was no proof that the deft operated the servers on which the infringement was hosted.

No error in instruction not distinguishing website host from website which harms trademark, the second could not exist without the first.

Statutory damages authorized for contributory infringement.

LOUIS VUITTON MALLETIER, S.A. V. AKANOC SOLUTIONS, INC.

Seventh Circuit -- Kevin Arnett v. Thomas Webster

Where prison medical facilities were slow in treating inmate with rheumatoid arthritus, the claim may proceed, but qualified immunity for the doctor, given lack of specific proof of deliberate indifference.

Kevin Arnett v. Thomas Webster

Seventh Circuit -- USA v. Fontez Combs

Given that the trial court approves please, a deft who does not preserve an issue for appeal by conditional guilty plea unwaiveably waives his right to later attempt to suppress evidence in challenging his sentence.

(Proscs cannot waive the lack of waiver.)

USA v. Fontez Combs

Sixth Circuit -- Dian Sabo v. City of Mentor

Qualified immunity decision insufficiently final for review, as it rests on disputed facts.

Denial of QI on state law claims upheld.

 Dian Sabo v. City of Mentor

Sixth Circuit -- USA v. Pamela Holder

AUSA's unprofessional lack of clarity as to whether a certain witness was given immunity not sufficiently material for Brady violation.

This also TKO's ineffective assistance claim along same lines.

USA v. Pamela Holder

Fifth Circuit -- Milan Dediol v. Best Chevrolet Incorporated, et al

A claim for hostile work environment can proceed under ADEA.

Sufficient evidence in record to survive summary judgment.

Milan Dediol v. Best Chevrolet Incorporated, et al

Fifth Circuit -- Paola Oviedo v. Gregg Hallbauer, et al

Removal to federal court is improper at the stage of motion to set aside default judgment. (Where State court has otherwise completely disposed of the case.)

Paola Oviedo v. Gregg Hallbauer, et al

Fifth Circuit -- USA v. Moises Garcia

Crack/Cocaine disparity sentencing reduction.

Court properly understood guidelines, knew it had the freedom to depart.

No Separation of Powers issue, as Congress specifically delegated power to the Sentencing Commission to make rules regarding discretion.

USA v. Moises Garcia

First Circuit -- OfficeMax, Inc. v. Levesque

Office supply store employees' noncompete clause accrued not at the time of their discharge, but from the takeover of the office supply store by another corporation.

OfficeMax, Inc. v. Levesque

First Circuit -- US v. Garcia-Ortiz

Conviction on two counts, the second of which is a lesser included of the first - absent specific legislative permission - is double jeopardy.

No error in denying minor participant sentence reduction, given fulness of participation.

Evidence of rehabilitation not irresistible.

US v. Garcia-Ortiz