Short Form: Seventh Circuit and points (mostly) West

Seventh Circuit:


Eugene Bailey v.  City of Chicago - S1983 dismissal of claims in mistaken arrest after schoolyard brawl.  Sufficient cause for arrest, no showing of malice in motive for detention lasting less than 48 hours, insufficient showing on state IIED & malicious prosecution tort claims.

Eighth Circuit (Summary from Circuit site):

142220P.pdf  03/06/2015  David Zink  v.  George Lombardi
   U.S. Court of Appeals Case No:   14-2220
   U.S. District Court for the Western District of Missouri - Jefferson City   
   [PUBLISHED] [Per Curiam En Banc Decision - Chief Judge Riley and Judges 
   Wollman, Loken, Smith and Gruender join in this opinion. Judge Colloton 
   joins all but Part II.A of the opinion and Judge Shepherd joins all but 
   Part II.B of the opinion.] 
   Prisoner case - habeas - Death Penalty. The Missouri prisoners' second 
   amended complaint failed to adequately allege that Missouri's 
   lethal-injection protocol created a substantial risk of severe pain 
   because none of the alleged potentialities the prisoners identified 
   relating to compounded penobarbital rise to the level of "sure or very 
   likely" to cause serious harm or severe pain; even if one of the harms 
   identified were to occur, the prisoners offer nothing in their pleading to 
   support the allegation that it would be more than an isolated incident, 
   and an isolated incident, while regrettable, would not result in an Eighth 
   Amendment violation; the claim, therefore is inadequately pled as a matter 
   of law, and the district court did not err in dismissing it; the existence 
   of an alternative method of execution is a necessary element of an Eighth 
   Amendment claim and this element must be pleaded adequately in the 
   complaint; here,the second amended complaint merely conceded that other 
   methods the Department of Corrections could choose would be 
   constitutional, and this concession, without additional factual 
   enhancement, is insufficient to allege the necessary element of the 
   existence of an alternative method; in sum, without a plausible allegation 
   of a feasible alternative method of execution that would significantly 
   reduce a substantial risk of serious pain, or a purposeful design by the 
   State to inflict unnecessary pain, the plaintiff prisoners have not stated 
   an Eighth Amendment claim based on the State's use of compounded 
   pentobarbital in executions, and the district court did not err in 
   dismissing the prisoners' Eighth Amendment claim; the prisoners have not 
   pleaded that the use of pentobarbital will result in unnecessary and 
   wanton infliction of pain, and they have failed to state an Eighth 
   Amendment deliberate-indifference to medical needs claim; where only the 
   mode of execution has changed, with no allegation of superadded punishment 
   or superior alternatives, the Ex Post Facto Clause is not implicated; 
   prisoners failed to show that changes to the execution protocol deprived 
   them of the timely and adequate notice needed to litigate the lawfulness 
   of the procedures; the prisoners' allegations that the State violates its 
   own execution protocol by executing prisoners while legal actions are 
   pending fails to state a claim under the Equal Protection Clause; the 
   State's decision to carry out a lawful execution when there is no judicial 
   stay in place does not burden a prisoner's rights under the Eighth 
   Amendment or other constitutional provision; the prisoners failed to state 
   a claim of qualified right of public access to information regarding the 
   source of the compounded pentobarbital to be used in their executions 
   because they did not plausibly allege a history of openness to the general 
   public; challenges to use of compounded pentobarbital under the Food, Drug 
   and Cosmetic Act and the Controlled Substances Act rejected as there is no 
   private right of action under the statutes and the prisoners cannot use 
   the Missouri Administrative Procedures Act to allege the denial of a 
   private legal right under the federal statutes when the federal statutes 
   themselves do not create such a private legal right. Judge Bye, with whom 
   Judges Murphy and Kelly join, dissenting. Judge Shepherd, dissenting in 
   part. 
  
142163P.pdf  03/06/2015  Russell Bucklew  v.  George Lombardi
   U.S. Court of Appeals Case No:   14-2163
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Loken, Author, for the Court En Banc] 
   Prisoner case - habeas - Death Penalty. This opinion should be read in 
   conjunction with the court en banc's March 6, 2015 opinion in No. 14-2220, 
   Zink v. Lombardi,as Bucklew's due process claim is not materially 
   different than the due process claims raised in Zink and is resolved in 
   the opinion in that case. With respect to Bucklew's "as applied" Eighth 
   Amendment claim arising out of his congenital cavernous hemangioma, the 
   district court erred in dismissing the complaint sua sponte as it was not 
   patently obvious that Bucklew could not prevail and would not amend his 
   as-applied challenge to include a plausible allegation of a feasible and 
   more humane alternative method of execution; on remand, the pleadings 
   should be narrowly tailored and expeditiously conducted to address only 
   those issues that are essential to resolving Bucklew's as-applied Eighth 
   Amendment challenge; at the earliest possible time Bucklew must identify a 
   feasible, readily implemented alternative procedure that will 
   significantly reduce a substantial risk of severe pain and that the State 
   has refused to adopt. Judge Bye, with whom Judges Murphy and Kelly join, 
   concurring in the result. Judge Shepherd, with whom Judges Murphy and Bye 
   join, concurring. 




Ninth Circuit:




CHRIS KOHLER V. FLAVA ENTERPRISES -- ADA.  Bench that exceeds the length permitted by the statute is nonetheless legal under the statute, as it possesses a latent equivalent facilitation   (Parallel transfer from wheelchair as opposed to diagonal.)  No error in denial of fees, as it was a tough question to figure out.




Tenth Circuit:




United States v. Hicks  Violation of Speedy Trial Act, as a pro forma motion without hearing only tolls the STA clock for 30 days.  No Constitutional violation.




Al-Yousif v. Trani -- Error in granting AEDPA equitable tolling due to mistaken log entry in computer system for date of judgement; Deference to state supreme court on Miranda claims.




DC Circuit




Center for Sustainable Economy v. Sally Jewel -- Rather complex administrative law challenge having to do with oil, and continental shelves and such.  As we're in a rush, here's the stated holding: We deny CSE’s petition and conclude that: (1) CSE has  associational standing to petition for review, (2) CSE’s NEPA  claims are unripe, (3) two of CSE’s Program challenges are  forfeited, and (4) CSE’s remaining challenges to Interior’s adoption of the 2012-2017 leasing schedule fail on their merits.




Federal Circuit




G4S TECHNOLOGY LLC v. US [OPINION] -- Subcontractor is not a third party beneficiary of government contract, given government's responsibilities to the people and lack of direct benefits to the subcontractor.  Dissent: It's called "reliance," people.




OTAY MESA PROPERTY, L.P. v. US [OPINION] -- Takings award for placement of sensors at the border - no error in partial denial of compensation for "development" lands, no error in the court's arriving at its own figure for the other lands.

Seventh Circuit -- USA v. Michael Roux

Judge appropriately limited evidence as to prior bad acts to motive and identity.

Uncharged nature of prior bad acts not dispositive.

Arrest photos admissible for purposes of identifying deft in crime photos.

Prosc reference to jail telephone calls not grounds for mistrial.

Cross of deft did not implicate right to remain silent.

USA v.   Michael Roux

Sixth Circuit -- USA v. Tyree Washington

Difference in skin tone did not make photo lineup impermissibly suggestive.

Sufficient evidence for intent element of carjacking statute where touching victim and brandishing weapon are both established.  Where one not established, finder of fact can find general threat suffices.

Lenity counsels that the ordering of convictions in a simultaneous verdict should be arranged to favor the defendant when calculating total length of sentence.


 USA v. Tyree Washington 

Sixth Circuit -- USA v. Stephen Graham-Wright

Court can use results of pretrial psychiatric examination requested by and available only to the defense (and court) in sentencing.

Dissent: Fifth Amendment.

USA v. Stephen Graham-Wright 

Eighth Circuit -- United States v. John Perry

Crim  --

Sufficient evidence that the tax evasion happened within the statute of limitations period.

Interview during search of home did not elicit involuntary statements.

Franks challenge to warrant insufficiently detailed.

Sentencing challenge.

Decision on whether forfeiture should offset restitution to government is not ripe until forfeiture happens.

 United States  v.  John Perry

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.

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

Sixth Circuit -- USA v. Jermaine Woods

"What's in your pocket?"  doesn't change a Terry stop [SITA?] into an interrogation.

Concurrence -- public safety exception.

USA v. Jermaine Woods 

Ninth Circuit -- SILVA MAMIGONIAN V. MICHAEL BIGGS

Habeas grant in Capital case -- Brady/Giglio on prosecution witness' prior bad acts.

Kozinski concurs with his own opinion, holding confession inadmissable under Miranda.

SILVA MAMIGONIAN V. MICHAEL BIGGS

Seventh Circuit -- USA v. Casey Hunter

"Can you call my attorney" is an unambiguous invocation of the right to counsel.

USA v. Casey Hunter

Fifth Circuit -- USA v. Arnoldo Gonzalez-Garcia

Physical fruits of Miranda violation not suppressable under Edwards.

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

USA v. Arnoldo Gonzalez-Garcia

Fourth Circuit -- US v. Ryan Holness

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

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

US v. Ryan Holness

Ninth Circuit -- USA V. TYMOND PRESTON

Crim --

Diminished mental competency not enough to TKO confession

Jury trial/confrontation waivers were good;

Hearsay in under excited utterance.

Sentence substantively questionable -- terms of lifetime supervision harsh for deft in 20's.

Dissent -- coerced confession

USA V. TYMOND PRESTON

Fourth Circuit -- US v. Rodney Williamson

Crim -- Issue is post-indictment, pre-arrest tapings with confidential informant.  Scotus remanded, holding that 6A right to counsel had attached on indictment.  District court affirmed conviction.  CA affirms here.

6A -- Although introduction of the recordings was plain error, it wasn't the kind of plain error that impacts substantial rights.

5A -- No coercion.

No right to counsel in Rule 33 "new evidence" proceedings.

US v. Rodney Williamson

Fourth Circuit -- US v. Osama Ayesh

Extraterritorial application of fraud statutes comported with the statutes and with due process.

Statements made during 5 hour interrogation after 19 hour (non-custodial) plane flight were voluntary for Miranda purposes.

Sufficient evidence for fraud conviction even where the government eventually received the services - diversion of the funds with intent suffices.

US v. Osama Ayesh

Tenth Circuit -- United States v. Santistevan

Giving police a letter from one's lawyer saying that one does not want to talk to them is sufficient invocation of the right to counsel.

Dissent: Not if you do it silently.

United States v. Santistevan

Fourth Circuit -- US v. Jimmy Hilton, Jr.

No clear error in trial court's holding that deft's description of her invocation of right to counsel was a bit more forthright than what actually happened, given police testimony to the contrary.

Where deft asks to go pro se at the beginning of jury selection and such a request risks undue delay, no clear error in deferring the shift to pro se representation to the beginning of the actual trial.

Federal identity theft statutes do not apply to those accused of 'stealing' a corporation's identity -- the use of 'person' and 'individual' is too ambiguous, given canon of lenity.

Where an employee has the authority to remove items from the company PO box, but does so with the intent of stealing something, the mail theft statutes apply.

Mailed invoices resulting in the checks to be stolen suffice for the mail fraud statute.

US v. Jimmy Hilton, Jr.

First Circuit -- US v. Infante

No error in trial court holding that fire emergency call and the trail of blood justified warrantless entry under exigent circumstances.

No error in trial court holding that the atmosphere in deft's hospital room was sufficiently nonconfrontational to avoid Miranda.

Dissent - Where there's no smoke, there's no warrantless firefighter entry.


US v. Infante 

Second Circuit -- United States v. Ferguson

Public safety exception justified non-Mirandized interrogation, as deft had fired gun into the air in a public place -- interrogation was an hour later, no firm rule on time lapse for public safety exception to apply.

United States v. Ferguson

Seventh Circuit -- USA v. Dominick Pelletier

Deft wasn't in custody for Miranda purposes when answering questions during an FBI job interview.

Warrantless search upheld under inevitable discovery, as police would have easily been able to get a warrant, and showed every intention of doing so.


USA v. Dominick Pelletier