Federal Circuit -- CUMMINS, INC. V. TAS DISTRIBUTING CO., INC.

As the novel patent claim would have been a complete defense in an earlier litigation, the claim is barred by res judicata.

CUMMINS, INC. V. TAS DISTRIBUTING CO., INC.

Federal Circuit -- KING V. DEPT. OF VETERANS AFFAIRS

Veterans Cout did not err in upholding Board's holding that certain witnesses lacked sufficient medical training and credentials despite statute permitting the use of lay testimony to assess a claim of disability.

The Board's disapproval was less than categorical.



KING V. DEPT. OF VETERANS AFFAIRS

Ninth Circuit -- USA V. SALVADOR HERNANDEZ-ESTRADA

Where several localities supplement their jury lists to ensure a fair cross-section, this does not per se require an adjacent locality to do so.

Disparity of 7.7% is allowable.

Those who declined to identify their race are not a significant enough number to reach the threshold, so they need not be considered.

Clerk's Office violation of statute in not sending in reporting forms and disqualifying venirepersons who expressed doubt about their ability to understand English, while errors, aren't significant enough to merit reversal.

Deft bears burden of proof of establishing that violations of JSSA are substantial enough to frustrate purposes of the Act.

Court's violation of the statute in not forcing jurors to identify ethnicity wasn't reversible error.

Chief K, Concurring -- 7.7% threshold is bad statistics, given the small percentages of certain ethnic groups.

USA V. SALVADOR HERNANDEZ-ESTRADA

Ninth Circuit -- HARRY COLES V. JOSHUA EAGLE

When police officers break the car window and drag the plaintiff through it, excessive force is at least a disputed issue of material fact, and certainly not ruled out as a matter of law.

HARRY COLES V. JOSHUA EAGLE

Ninth Circuit -- AL-HARAMAIN ISLAMIC FOUNDATION V. BARACK OBAMA

FISA civil liability provisions are not a waiver of sovereign liability.  Statute allows suit against a person, not the gov't specifically.  Ambiguity in favor of the sovereign.

SJ dismissing personal liability claim against FBI Director correct.



AL-HARAMAIN ISLAMIC FOUNDATION V. BARACK OBAMA

Ninth Circuit -- USA V. BENJAMIN HARRIS

Airplane safety statute proscription of  dangerous weapons not unconstitutionally vague as applied to case of 2.5" pocketknife.

USA V. BENJAMIN HARRIS

Eighth Circuit -- Douglas Milhauser v. Minco Products, Inc.

Veteran employment - termination of employee did not offend statute requiring employment as if the employee had not left to serve, as, given the employee's record prior to departure, the employee would have been terminated if he hadn't left.

Concurrence - should have been review for plain error, without reaching the statute.

Douglas Milhauser  v.  Minco Products, Inc.

Eighth Circuit -- United States v. Diana Gamboa

Safety-valve sentencing adjustment properly denied, as court properly found deft to be a supervisor. 

Deft's withdrawal of motion to withdraw guilty plea just prior to said sentencing was knowing and voluntary.

United States  v.  Diana Gamboa

Seventh Circuit -- USA v. Gregory Wolfe

Prosecutor praising intelligence of witness was borderline vouching, but not enough to imperil Fair Trial right.

Prosc's saying that a witness had nothing to lose was borderline, as it implied that the witness had been cleared by the govt investigation, but no serious error.

Prosc remark in closing that witness had eye for detail was substantiated by facts mentioned contemporaneous with remark.

Prosc claiming that all witnesses identified deft in video despite one witness' inability to make ID not prejudicial, as deft's attorney conceded ID in closing.

Sufficient evidence for proof of losses for sentencing bump.

Restitution is a civil penalty, not criminal, and therefore Apprendi doesn't apply.  Circuit split flagged.



USA v. Gregory Wolfe

Sixth Circuit -- Bhd. of Locomotive Eng'rs v. United Transp. Union

Where unions have a 'recognized interpretation' of a term of a CBA, an arbitrator ruling on a claim is not bound to observe it unless so instructed by the authorities seeking arbitration.

When the seniority terms of two CBA's conflict, absent contrary restrictions, a mediating board can reinterpret one o the other to find the rule of the common shop.

Bhd. of Locomotive Eng'rs v. United Transp. Union

Second Circuit -- United States v. Torres

Federal civil forfeiture correctly imposed where deft gained city subsidized housing by making misrepresentations to state agency which was using federal funds.

Forfeiture to the feds and restitution to the state agency can be imposed concurrently.  Deft can then petition that the feds repay the state agency to reduce the restitution.

United States v. Torres

Federal Circuit -- DEERE & CO. V. BUSH HOG, LLC.

Where jury might have found that a slight spacer between pieces of the construction allowed the pieces to engage with each other, the court inappropriately invoked the doctrine of vitiation to rule on a claim that the two pieces did not engage.

The lower cutting deck was not necessarily substantially planar, or something along those lines.


DEERE & CO. V. BUSH HOG, LLC.

DC Circuit -- KLB Industries, Inc. v. NLRB

When a company pleads hardship as an excuse during negotiations, a disclosure obligation arises that is distinct from the total disclosure required in other situations.  Not an all-or-nothing requirement -- the company must disclose relevant financials together with the underlying data.

Withholding of this information makes a lockout unlawful, notwithstanding other good-faith bargaining.


KLB Industries, Inc. v. NLRB

DC Circuit -- Cellco Partnership v. FCC

Chevron deference applies even to questions of scope of agency's power.

Specific Title III grant of power to prescribe wireless plans allowed agency rulemaking requiring fair roaming charges.

Rule was not undue intrusion, didn't cancel third party contracts, and wasn't an undue modification of existing licenses.

On facial challenge, the rulemaking is not an exercise of common carrier regulation, as it is sufficiently discriminating.

No taking or regulatory taking, as compensated.

Not arbitrary/capricious.


Cellco Partnership v. FCC

Eleventh Circuit -- Bahamas Sales Associate, LLC, et al. v. Donald Cameron Byers

Forum selection clause referring to 'obligor'  in contract for sale of land binds only one party to the sale- the purchaser.

Purchaser's counterclaim in action for nonpayment alleging RICO conspiracy to under-assess the property is not subject to the forum selection clause in the contract of sale, as the activity is not a direct result of the performance of contractual duties.

Under federal common law, nonsignatories to a contract cannot be bound by equitable estoppel to a forum selection clause in the contract if the claimant has not specifically asserted entitlements or claimed duties under the contract.

Bahamas Sales Associate, LLC, et al. v. Donald Cameron Byers

Ninth Circuit -- EXECUTIVE BENEFITS INSURANCE V. PETER ARKISON

Although claims against noncreditors for fraudulent conveyance are core to the bankruptcy court's resolution of the estate, it is unconstitutional for a bankruptcy court to enter final judgment on those claims, as it is not an Article III tribunal.

Bankruptcy courts still retain the statutory power to hear and determine the cases, though, and can issue recommendations to the District Courts on findings of fact and issues of law.

Nonclaimant on the estate can waive defense of court's lack of power to have judgment issued by not timely objecting to it.

Superficial changes in company - e.g. name, website, logo - do bar finding of successorship to prior company.


EXECUTIVE BENEFITS INSURANCE V. PETER ARKISON

Eighth Circuit -- United States v. John Farnell

Physical appearance of deft, appearance of vehicle, and proximity to crime scene justified stop, given issuance of bulletin.

By spoken consent and opening the door to the van, deft consented to the search.

Given probable cause for the search of the automobile, police did not need to get second consent to search after obtaining consent to initial search.

 United States  v.  John Farnell

Seventh Circuit -- USA v. Juwan Matthews

Court did not procedurally err in imposing crack/cocaine ratio stated in the guidelines, despite citing Congressional intent -- clearly, the court demonstrated its knowledge that it could vary from that.

Not made substantively unreasonable by other judges' opting for the other crack/cocaine ratio, as judges must be allowed the discretion, and therefore any disparity between sentences is reasonable.


USA v. Juwan Matthews

Seventh Circuit -- Robert Dietrich v. Judy Smith

As there is no evidence in the record indicating that the state trial court viewed the testimony of a therapist as in any way dispositive, habeas claim alleging right to in-camera review of the therapist's notes is denied -- no chance of a different outcome.

Robert Dietrich v. Judy Smith

Seventh Circuit -- Tammy Boyd v. Meriter Health Serv

Certification of 23(b)(2) class action upheld despite diversity of subclass claims - statutory language requiring the deft to have acted the same to all members refers to the subclasses.

Walmart v. Dukes limits on uniformity of redressibility apply to the subclass, not the class.

Formulaic reformation of the larger ERISA plan, although resulting in different awards, is not individualized monetary relief for the purposes of class certification.

Potential conflicts of interest on the merits not substantial enough to bar certification..

Tammy Boyd v. Meriter Health Serv

Fourth Circuit -- US v. Nicholas Gonzales-Flores

District Courts have discretion to hold a hearing on a deft's FRCrimP Rule 43 motion claiming government errors in discovery without the deft, if requirements of fairness and efficiency so indicate.


US v. Nicholas Gonzales-Flores

Second Circuit -- United States v. Murphy

District court did not clearly err by holding that the deft had stopped in response to patrol car lights, given the patrol car lights n the video of the stop.

Trooper's "Kansas two step" of briefly turning away from the car before asking consent to search was not enough to dissipate the taint of the illegal stop.

Miranda warnings incorrect enough to dispel waiver -- the added instruction that the defts should talk to the police negated the knowing waiver..

United States v. Murphy

Tenth Circuit -- Aguilar-Aguilar v. Napolitano

BIA not estopped from instituting removal petition based on conviction by proceeding with discretionary removal.

No 5A interest imperilled in simultaneously terminating first process and instituting the second, as relief offered by the first process was entirely at the agency's discretion.

Aguilar-Aguilar v. Napolitano

Ninth Circuit -- SAUL MARTINEZ V. JANET NAPOLITANO

APA challenges that implicate immigration removal proceedings are barred by statute -- petitioner is limited to those statutory processes.

SAUL MARTINEZ V. JANET NAPOLITANO

Ninth Circuit -- MIKHAIL PECHENKOV V. ERIC H. HOLDER JR.

Federal courts cannot review immigration holding allowing removal based on commission of a particularly dangerous crime unless a matter of law is raised, a constitutional claim is raised, or the IJ makes findings extraneous to the record of the conviction.

Relevant statute not unconstitutional.

Concurrence (by the author): The extraneous findings category ("on the merits") is erroneous.


MIKHAIL PECHENKOV V. ERIC H. HOLDER JR.

Ninth Circuit -- DRENDOLYN SIMS V. MIKE STANTON

Front gate to small lawn is quintessential curtilage.

Police officer's kicking in of front gate (onto homeowner) while pursuing someone who was evading questioning about a baseball bat incident was not justified by exigency or emergency.  (Suspect was not carrying a baseball bat.)

Policeman had fair notice of clearly established right for purposes of S1983.


DRENDOLYN SIMS V. MIKE STANTON

EIghth Circuit -- David G. Velde v. Border State Bank

Quick "going out of business" sales with proceeds going directly to the creditors really shouldn't be held inside of 90 days before bankruptcy. That's a voidable transfer -- and paying the costs of the sale isn't the giving of new value.

Floating lien defense not valid where the interest is unsecured. 

Amounts on deposit with creditor bank are subject to a security interest -- nothing more need be done to achieve setoff protections.

Bankruptcy court's arithmetic was correct.

 David G. Velde  v.  Border State Bank

Eighth Circuit -- Joyce Johnson v. MFA Petroleum Company

Absence of a federal cause of action creates strong presumption  against a 'complete' preemption of state law -- 'complete' preemption allows removal to federal court despite the plaintiff's only having raised state claims.

Remand for CAFA analysis.


Dissent - Complete preemption is merely field preemption -- clearly no need for a statutory cause of action to find field preemption.   On-point precedent for this specific claim.

Joyce Johnson  v.  MFA Petroleum Company

Eighth Circuit -- Toby J. Sutton v. Patricia Bailey

State University administrators did not violate any clearly established rights of terminated instructor, in that a casual meeting with a supervisor sufficed for pretermination processes.

Speculative claims of the insufficiency of post-termination procedures irrelevant.

Toby J. Sutton  v.  Patricia Bailey

Eighth Circuit -- R.K.N. v. Eric H. Holder, Jr.

Although BIA did not specifically address the petitioner's HIV claim, since the Bureau incorporated the IJ's findings, their holding still is supported by substantial evidence.

 IJ did not err in excluding medical records.

BIA's upholding of a potentially flawed IJ legal analysis on credibility is a matter of law, not fact, and therefore permissible.  Doesn't reach the threshold for Article III reversal.

R.K.N.  v.  Eric H. Holder, Jr.

EIghth Circuit -- United States v. Efrain Orozco

As the policeman was filling out paperwork, Terry stop not unreasonably prolonged.

Sufficient evidence for constructive possession theory of conviction.

Remand for FSA adjustment in sentence - Act was passed after conviction, but before sentencing - as pro se petition insufficiently developed facts.

United States  v.  Efrain Orozco

Seventh Circuit -- USA v. Jwuan Moreland

Excusing jurors with business commitments doesn't offend 6A or statute.

No error in excusing jurors before deft entered proceedings.

Appropriate instruction cured potential confusion when witness was both lay and expert.

Selling drugs wholesale to a retailer is not per se evidence of conspiracy, as the transaction is arm's length.  But when the supplier extends credit to the retailer with the express understanding that they be sold, jury can properly find conspiracy.

Admission of cash found in patdown after auto stop in for inevitable discovery , as there were drug scales in the (stolen) car. 

Addiction doesn't justify downward reduction in sentence -- rather, court should lengthen post-conviction monitoring.  This applies to life sentences as well.

Harmless error in court's accidental announcement of deft's prior convictions.

Deft telling sister to hide gun in dropped ceiling = possession.

Court properly granted minor, not minimal participant sentencing adjustment.






USA v. Jwuan Moreland

Seventh Circuit -- USA v. Larry Purnell

Court can properly consider petitioner's fruitless collateral challenges to other aspects of his or her conviction when assessing whether to impose discretionary sentencing reduction. 

(Sentence was within guidelines either way.)

 USA v. Larry Purnell

Sixth Circuit -- Robert Andrews v. Hickman County, Tennessee

Police officer accompanying state child protective services who entered house without warrant violated clearly established law for S1983.  Neither consent, exeigency, nor de minimis.

Social workers covered by Fourth Amendment, but not liable when acting on false information provided by other state actors.

4A not as clear for social workers, so no clearly established law for purposes of S1983.


Robert Andrews v. Hickman County, Tennessee

Sixth Circuit -- OH Police & Fire Pension Fund v. Standard & Poor's Fin Services

Agency did not profit from the sale of the Funds, so its representations aren't governed by the statutory cause of action for negligent misrepresentation.

State securities statute requires affirmative misrepresentaiton, not withholding of information.

Funds did not owe investors a duty of care under NY law.  Ohio uses different terms to essentially the same result.

If the Agency believes the ratings, they're not actionable.

Absent motion to amend, 12(b)6 dismissal with prejudice proper.




OH Police & Fire Pension Fund v. Standard & Poor's Fin Services

Second Circuit -- United States v. Caronia

First Amendment protects pharmaceutical reps who advocate off-label uses of the drugs.

Narrowing construction of the statute - FDCA doesn't apply to marketing statements. 

Doesn't work under strict scrutiny or intermediate -- criminalizing reps' representations does nothing if anyone else can make the same representations.

Dissent -- speech was merely evidence of motive.  Demonstrates objective intent to violate statute.

United States v. Caronia

Second Circuit -- Lee v. Holder

Chevron deference to AG's holding that substitute claimants are not eligible for the grandfather clause in a form of immigration relief.  The ambiguity is in the application process, not the designation of beneficiaries.


Lee v. Holder

Second Circuit -- Zeno v. Pine Plains Cent. Sch. Dist.

Reasonable finder of fact could have held that school district was indifferent to racial harassment, given tepidity of response. 

No error in trial judge rejecting remmitteur.


    Zeno v. Pine Plains Cent. Sch. Dist.

First Circuit -- Gasparian v. Holder

Not enough new evidence to reopen immigraiton case.

No factors warranting Article III interference in prosecutorial discretion.  

Stayed for 90 days to allow son of family to apply for new form of relief.

Gasparian v. Holder

Federal Circuit -- ARCELORMITTAL FRANCE V. AK STEEL CORP.

ARCELORMITTAL FRANCE V. AK STEEL CORP.

DC Circuit -- USA v. Andrew Warren

USA v. Andrew Warren

Eleventh Circuit -- Iberiabank v. Beneva 41-1, LLC, et al.

As FDIC has power to enter into contracts on behalf of banks in recievership, third party cannot terminate sublease agreement based on the transfer of the agreement from the bank to the FDIC. 

(Quick summary prepared from first page.)

Iberiabank v. Beneva 41-1, LLC, et al.

Eleventh Circuit -- USA v. Lawrence S. Duran, et al

In determining questions of 'substantial nonexempt interest' under FDPCA, federal courts must decide property questions even when referencing state law.

USA v. Lawrence S. Duran, et al

Tenth Circuit -- No Clue

Not sure which of yesterday's opinions were published, and running very low on time.  Moving on.

Ninth Circuit -- USA V. EDUARDO ARIAS-ESPINOSA

If one signs a plea agreement waiving the right to appeal, and at the end of sentencing, the judge says that there might be a right to appeal, there is no right to appeal.  Equivocal and ambiguous.


USA V. EDUARDO ARIAS-ESPINOSA

Eighth Circuit -- United States v. Humberto Jacobo

Nine-level sentencing bump correctly applied in case of evading prior charge, as there's no need to prove the prior charge to justify the sentencing bump.

 United States  v.  Humberto Jacobo

Eighth Circuit -- United States v. Robert Lee Bailey

When a District Court determines during the pendency of a Rule 41 action for the return of property that the government has lost the property, the plaintiff should be allowed to convert the action into a civil damages claim.

United States  v.  Robert Lee Bailey

Eighth Circuit -- Pedro Garcia-Colindres v. Eric H. Holder, Jr.

Brief detentions, minor beatings and threats are not past persecution for purposes of an asylum claim.

Not raising humanitarian asylum claim at agency level waives it for Article III review.

 Pedro Garcia-Colindres  v.  Eric H. Holder, Jr.

Eighth Cicuit -- Westfield Insurance Company v. Robinson Outdoors, Inc.

Insurance company had no duty to defend on false advertising claim, as the contract required that the claimant have sold goods that conformed to the specs.

Westfield Insurance Company  v.  Robinson Outdoors, Inc.

Eighth Circuit -- John Schedin v. Ortho-McNeil-Janssen

Jury could have reasonably found that a package insert was sufficient to warn physician AKA learned intermediary.

Post-hoc report fairly admitted, as it established possibility of contemporaneous knowledge.

 Sufficient proof of causation, given MD's contacts with reps and literature.

JMOL shoudl have been granted on punitive damages, given speculative nature of claim.

Concur/Dissent: Sufficient possibility of punitive damages scenario.

John Schedin  v.  Ortho-McNeil-Janssen

Eighth Circuit -- Kip M. Kaler v. Susan Bala (11/29)

[Tough case.  Again, entertainment purposes only.]

Where subject of bankruptcy action takes out insurance policy in the name of a third person and the Federales execute a forfeiture order, rights in the policy then vest in the Federales, giving the Trustee a better claim than the beneficiary of the policy if the forfeiture is later reversed..

Improper notice to the beneficiary does not make the forfeiture order wrongful.

Kip M. Kaler  v.  Susan Bala

Seenth Circuit -- Henry Ruppel v. CBS Corporation

Liability suit properly removed to Federal Court under the Federal Officer statute.  Deft's not warning plaintiff of dangers is fundamentally a liability/negligence question, and there is therefore a colorable defense under Boyle - delicts within specs.

Henry Ruppel v. CBS Corporation

Seventh Circuit -- Kevin Kasten v. Saint-Gobain

Post- Scotus remand, District Court erred in giving SJ to employer on question of FLSA retaliation claim.

Whether complaint was material cause of dismissal is a matter for the jury, given the plausibility of the  inference.

 District Court erred in giving SJ against claim that spoken complaint did not put the company on notice that FLSA was in play.

Kevin Kasten v. Saint-Gobain

Seventh Circuit -- USA v. Michael Taylor

For felon-in-possession charge, proof that the deft's housemates  possessed guns is not unduly prejudicial, in that it makes it more likely that the firearm in the vehicle actually belonged to the deft.

Sufficient evidence for possession, despite only witness' substantial use of MJ and alcohol. .

Sentence 13 years beyond guidelines not substantively unreasonable, as court considered all factors.


USA v. Michael Taylor

Seventh Circuit -- USA v. Luis Delgado

Police cannot search house under exigent circumstances when det emerges after knock on door and is arrested, even if there is a shooter still at large.  There must be some affirmative sign of exigency, some credible story.

USA v. Luis Delgado

Seventh Circuit -- Bahri Begolli v. Home Depot, U.S.A.

 Judges's resolution of dispositive factual threshold question on Statute of Limitations should have gone to the jury instead.

Contrary Circuit precedent distinguished - judicial determination of administrative exhaustion is different from judicial determination of a disputed fact, as the former looks to whether or not the agency issued a decision.


Bahri Begolli v. Home Depot, U.S.A

Seventh Circuit -- Richard Merel v. Kevin Duff (11/29)

In repaying funds lost to fraud, courts have discretion to use the 'rising tide' or the 'net loss' method.  That is, they can try to give back what was lost, or they can try to apportion evenly that which was recovered.

Richard Merel v. Kevin Duff

Sixth Circuit -- Green Party of Tennessee v. Tre Hargett

Where there have been subsequent changes in the statute at issue, Appeals Court should remand tothe District Court to assess mootness, and not rule in the first instance.

Statute giving state executive discretion in certifying minor parties is not
impermissibly vague/ unconstitutional delegation.

Plaintiff did not have standing to challenge restrictions on third party names, as they weren't going to name their party using any of the verboten words.

Green Party of Tennessee v. Tre Hargett

Sixth Circuit -- Joseph Coyer v. HSBC Mortgage Services, Inc.

No default fiduciary relationship or covenant of fair dealing between mortgagor and mortgagee in Michigan.

TILA claim untimely.

Individual cannot place common-law lien on their own property.

Where the magistrate judge is unqualified by statute, orders of trial court are not void if court conducts de novo review and withdraws the findings of the magistrate.


Joseph Coyer v. HSBC Mortgage Services, Inc.

Sixth Circuit -- Kevin Moore v. Mary Berghuis

Giving police officer name and phone number of attorney and asking him to contact the lawyer is sufficient invocation for the right to counsel.  Clearly established by Scotus for purposes of AEDPA.

District Court erred in holding admission of confession to be harmless error.

Dissent - Legitimate waiver under Edwards where police officer told deft that the lawyer was unavailable, and deft subsequently talked.

Kevin Moore v. Mary Berghuis

Fifth Circuit -- PPI Technology Services, L.P. v. Liberty Mutual (11/29)

Insurance company had no duty to defend, as the complaint didn't plead any facts of "property damage.  Descriptions of harm or damage to the underlying property are required.

PPI Technology Services, L.P. v. Liberty Mutual

Fourth Circuit -- U.S. Foodservice, Inc. v. Truck Drivers & Helpers Union

ERISA overpayment - District Court erred in ordering repayment of management overpayment to employee fund, as the plan administrator had held that there had been no overpayment, and such a reading of the plan language is rational. 


U.S. Foodservice, Inc. v. Truck Drivers & Helpers Union

Fourth Circuit -- Jonathan Blitz v. Janet Napolitano

Dismissal for lack of SMJ sufficiently final for appeal.

TSA Checkpoint Procedures constituted an administrative Order, as they were the final word of the Agency on the matter.

Court did not err in deciding this based on administrative record (without reference to the actual Order).

Channeling challenges to the Order to the Courts of Appeal not unconstitutional, very commmon.  Doesn't foreclose relief.  No DP violation.





Jonathan Blitz v. Janet Napolitano

Second Circuit -- United States v. Robinson

TVPA trafficking statute has three classes of culpability - knowledge; reckless disregard; opportunity to observe.

Sufficient evidence.

Recordings of phone calls with other criminal contacts  were not inadmissible as other bad acts, as the contextualized the contacts in the present case.  Same for threatening phone calls to person in present case.

Sentence procedurally reasonable.

Concur in J: Scienter terms in statute means that "opportunity to observe" should still have mens rea requirement.

United States v. Robinson

First Circuit -- Kenney v. Floyd

Hearsay in investigator's affadavit inadmissible against motion for summary judgement, not res gestae.

Evidence of animosity between petitioner and policeman not enough to defeat SJ against report from State AG clearing the policeman.


Kenney v. Floyd

End of day

Additional decisions in the 7th, 8th & 11th.  All will be posted tomorrow. 

Sixth Circuit -- American Beverage Association v. Snyder

No Dormant Commerce Clause violationin Michigan's requirement that all recyclable cans carry a mark unique to the state, as any manufacturer is free to put the mark on the can.

No discriminatory effect, for same reason.

However, the labeling requirement is extraterritorial burden on manufacturers, and therefore violates the DCC

Concurrence: Extraterritoriality, schmextraterrritoriality

 American Beverage Association v. Snyder

Sixth Circuit -- USA v. Lawrence S. Duran, et al

Denial of SJ on S1983 claim -- given the dog attack and the choke-hold, inappropriate force remains a possibility.  No immunity for supervisory liability claim.

Concur/Dissent -- No supervisory liability.

USA v. Lawrence S. Duran, et al

Fourth Circuit -- US v. Roger Day, Jr.

Deft can be convicted for aiding and abetting after being only indicted for the principal offense - not an illicit variance.

No holding on circuit split issue of whether deft has standing to raise defense of speciality from variance between the extradition and the conviction.  Court reaches merits anyway, as Article III standing exists either way, and the speciality standing question is prudential.

Aing and abetting is not a separate offense for purposes of speciality analysis.

Intent in taking the gold to Mexico suffices for money laundering statute - not just the fact that the gold was hidden in the car.

Gold is "funds" for purposes of the money laundering statute.

De minimis acts during a conspiracy suffice for venue.

FRE: prejudicial report properly excluded; other bad act evidence correctly admitted, as intrinsic to the crime.

No Apprendi error in 3m fine, as deft admissions raised the statutory maximum.  Apprendi doesn't apply to restitution and forfeiture.

US v. Roger Day, Jr.

Fourth Circuit -- US v. Terrence Vaughan

Terry stop not unduly prolonged for 13 minutes while waiting for dog to arrive, given justifiable suspicions aroused by four cell phones of different makes on the dashboard and passengers' inconsistent stories about travel plans.


US v. Terrence Vaughan

Third Circuit -- Cheryl James v. Wilkes Barre City

When police officer insists that parent accompany minor child to the hospital, this is as a matter of law insufficient seizure for a false arrest claim under S1983.

Cheryl James v. Wilkes Barre City

Second Circuit -- United States v. Coplan

Klein conspiracy is a well-settled question - Scotus & circuit precedent endorsed.  No a common-law crime, but creature of the statute.

Insufficient evidence for conspiracy -- possibly just good faith tax prep.

Knowing joinder of conspiracy needed for Pinkerton culpability.

Much dicussion of sufficiency of the evidence for different counts of conspiracy.

As deft was trying to mislead IRS agents in SDNY, materiality requirement in statute means that venue is proper in SDNY.

Admission of statements by unindicted party sufficiently probative, as finder o fact could have decided that it was reasonable to think that the statements at issue found their way to the conspirators.

Admission of co-conspirator statements does not require formal finding of a conspiracy for each statement or conspirator.

No abuse of discretion in barring deposition transcript under hearsay when introduced for the purpose of proving general truthfulness during the deposition.

Prosc. referrencing matter in opening means that its not a new issue in rebuttals.

Given data known by deft, conscious avoidance instruction was appropriate.

District Court erred in imposing fine over statutory maximum.  Other sentencing not unreasonable.

United States v. Coplan

Second Circuit -- Ackerson v. City of White Plains, et al.

No probable cause to arrest on NY menacing charge if deft merely follows putative victim -- there must be physical threat.

 No qualified immunity for S1983 claim against officers & municipality.


Ackerson v. City of White Plains, et al.

First Circuit -- Newton v. LePage

Mural in a waiting room for government offices is not within a limited public forum.

Maintaining the appearance of neutrality is a legitimate government interest.

Adjusting artwork in offices is within the government's discretion.

(No stated holding on standing / identity of speaker.)

Newton v. LePage

First Circuit -- City of New Bedford v. Locke

Agency decision that its rulemaking is not subject to certain statutory constraints is itself entitled to Chevron deference.

Agency hard look sufficed for NEPA analysis requirement.

As for the fish, there ain't quite as many as there was a while ago.

City of New Bedford v. Locke