Eighth Circuit -- Kyna La v. Eric H. Holder, Jr.

Political harassment and intimidation does not suffice to prove political persecution for immigration removal purposes.

While petitioner's belief in future risk was subjectively true, it was not objectively valid.

Overseas consultations were insufficient to awaken a presumption that the foreign government is now aware of the asylum application.

Kyna La  v.  Eric H. Holder, Jr.

Eighth Circuit -- United States v. William Stegmeier

Trial court correctly found mens rea for harboring a fugitive, given the transportation and off-the-books job-hunt.

Giving access to RV where gun is kept is sufficient for elements of statute prohibiting giving a firearm to a fugitive.

In that it was an RV and not a house, no 'host liability' theory for a 2A challenge.

United States  v.  William Stegmeier

Eighth Circuit -- United States v. James Bruguier

Federal rape statute does not require that the deft know of the victim's incapacitation.

Charging that deft engaged in conduct and then issuing a jury instruction that the deft caused the conduct is not a constructive amendment of the charge.

Sufficient evidence for the unlawful entry element of burglary, given the crawling in the bedroom window late at night.

No error in sentencing bumps.

United States  v.  James Bruguier

Eighth Circuit -- United States v. Larry Rouillard

Federal rape statute requires deft know of the inability of the victim to consent.

United States  v.  Larry Rouillard

Seventh Circuit -- Int'l Brohd of Teams v. Kienstra Precast

Terms of an intrastate CBA are not covered by the Federal Arbitration Act, as the workers involved occasionally carted loads into an adjacent state, making them interstate transport workers according to S1 of the Act.

Where a CBA governs interstate workers under S1 of the Act but the successor corporation later operates exclusively within the state, the workers under the CBA are still considered interstate workers.

Int'l Brohd of Teams v. Kienstra Precast

Seventh Circuit -- Estate of Rudy Escob v. Brian Martin

As a result of a suicidal call to 911, the police showed up, and after fruitless discussions, released four volleys of tear gas, a stun grenade which set the living room on fire, a second stun grenade in the room where the caller was, and then after the caller lowered the gun from his own head and pointed it at the officers who had stormed in, they shot the caller dead.  A S1983 suit for excessive force resulted.

No error in trial court's admission of psychological testimony unavailaible to the officers at the time of the incident, as the plaintiff had opened the door by arguing deft was well-balanced, and it was offered to clarify earlier testimony by physician.

Jury properly instructed that plaintiff had to establish causation for excessive force, not causation for eventual death.

Deft's exoneration makes damages phase error harmless.

No clear error in grant of qualified immunity on excessive use of tear gas & stun grenades, as the right wasn't clearly established.

No error in grant o SJ as the testimony that the caller pointed the gun at the police was uncontroverted.

Estate of Rudy Escob v. Brian Martin

Seventh Circuit -- KS Energy Services, v. Hilda Solis

Substantial evidence for ALJ's holding that the soil in a work area was subject to vibration and previously disturbed, given the possibility of vibration and pre-existing pipe runs.

KS Energy Services, v. Hilda Solis

Sixth Circuit -- Georgia-Pacific v. Four-U-Packaging, Inc.

District court correctly permitted invocation of defensive collateral estoppel, as, despite the differences in the parties intent in the prior litigation, the external circumstances were substantially the same. 

Variation in circuit tests for likelihood of confusion in patent litigation does not bar collateral estoppel.

Variation in the statutory & tort causes of action does not bar collateral estoppel, as the summary judgement in the first case requied the court to reach the underlying question of confusion between the two products.

No risk of inconsistent rulings as a result, as the contrary circuit precedent has since been vacated.

Georgia-Pacific v. Four-U-Packaging, Inc.

Fifth Circuit -- Angelo Gonzalez v. Ronnie Seal, et al (12/12)

Given recent Scotus holdings, exhaustion of administrative relief is mandatory requirement for prisoner S1983 suits challenging prison conditions.

Angelo Gonzalez v. Ronnie Seal, et al

Fifth Circuit -- Fannie Garcia v. City of Laredo (12/12)

Stored Communications Act does not apply to information stored in a directly accessed cell phone, as it is not a 'facility' as contemplated by the statute and the information is not in 'electronic storage.'

Where counsel makes ex parte contact with judge and is admonished and judge later criticizes the quality of the lawyer's work, the judge is not required to recuse him or herself.

Fannie Garcia v. City of Laredo

Fourth Circuit -- US v. Jesus Torres-Miguel

California criminal threat statute is not categorically a crime of violence, as it is possible to injure someone without using force.  Circuit split with the 9th flagged.

There is no generic definition of criminal threat - it is a creation of the statute.

US v. Jesus Torres-Miguel

Fourth Circuit -- US v. Phillip Hamilton

No abuse of discretion in holding that clickwrap waiver of privacy in workplace computer and lack of any subsequent measures by deft to preserve privacy waived the marital privilege between deft and his wife.

Circumstantial evidence sufficient for bribery conviction -- finder of fact can impute intent.

No abuse of discretion in denying a gratuity instruction where gov't case was strict bribery.

For purposes of the sentencing bump, benefit accruing to a third party counts, not just that portion ultimately gained by deft. 

US v. Phillip Hamilton

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.

Second Circuit -- Sousa v. Marquez

Plaintiff claims that a misleading administrative report undercut his right of access to the courts in a prior suit and is filing a S1983 suit to redress.  Here, the Second Circuit declined to speculate on whether such a 'backward looking' right of access cause of action exists in the Circuit.

In backward-looking right of access suits, the manipulation of the information must be the dispositive factor in the resolution of the case.  Here, plaintiff had all the relevant facts, regardless of what the report said.

Insufficient proof of causation between the representaition and the verdict means that there is no genuine dispute of material fact.  SJ appropriate.

 Sousa v. Marquez

Excellent Post at Legal Ethics Forum

Thanks for the hat tip!

Federal Circuit -- CORR V. METRO WASHINGTON AIRPORTS

Where Congressional legislation merely ratifies a compact between states that sets up a transportation authority, it argues against the body being considered a federal instrumentality for purposes of the Little Tucker Act.

Where only three of 13 board members are federal appointees, it is insufficient to establish that the body is a federal instrumentality.

Given petitioner's assertion that the transportation authority is an unelected entity independent of elected authorities, it cannot be a federal instrumentality under the LTA. 

Transferred to the 4th Circuit under Federal Question.


CORR V. METRO WASHINGTON AIRPORTS

Eighth Circuit -- United States v. Jeremiah Cotter

Where a shaky and nervous suspect is working on an automobile in a dodgy neighborhood and the plates on the automobile don't match the registration, police have enough for a Terry stop.

United States  v.  Jeremiah Cotter

Eighth Circuit -- United States v. Justin Birdhorse

Where deft stipulates to the crime and accepts plea deal/appeals waiver that requires acceptance of responsibility in PSR, deft cannot appeal sentence that denies the sentencing reduction for acceptance of responsibility when the PSR, based on other statements, concludes against admission of responsibility.

United States  v.  Justin Birdhorse

Eighth Circuit -- United States v. Brandon Tyerman

Where deft discloses information to his attorney, and subsequently stipulates to that disclosure for his advantage in plea negotiations, disclosure of the facts prior to the stipulation is not a violation of attorney-client privilege, as an implicit waiver can be established.

Where evidence is only potentially useful to the deft, a motion to dismiss for destruction of evidence must establish bad faith, not just reckless conduct.

Where police do not usually compare contemporaneous-to-the-crime photos of the weapon with the weapon in evidence, police testimony doesn't open the door for the deft to present evidence on the weapon's destruction.

District court did no t err in denying spoliaiton instruction which would not require bad faith.

Prior bad acts appropriately in to establish constructive possession.

Intent to permanently deprive is not necessarily an element of federal weapons theft laws.

Creation of handcuff keys was a substantial step in attempting an escape.

 United States  v.  Brandon Tyerman

Seventh Circuit -- USA v. Carlton McIntosh

Where a court order is ambiguous as to the time and place of surrender to prison, not surrendering is willful, if in the interval, administrative officials inform the convicted person of the time and place.

Where a sentence is imposed for violation of supervised release, the underlying offense for the original conviction is the benchmark for setting the sentence for the violation.

USA v. Carlton McIntosh

Sixth Circuit -- Teresa Watts v. UPS

As there is no danger of divergent state court interpretations of the terms of a CBA, federal labor law does not preempt an ADA claim.

Where a statutory ADA claim parallels a contract-based CBA claim, it can be pursued without reference to restrictions on enforcement of CBA claims. (e.g., preeemption) 

Teresa Watts v. UPS

Third Circuit -- Franklin Benjamin v. PA Department of Public Welfare

Where a 23(b)(2) certified class, by its terms, excludes those otherwise qualified but who do not seek the asked-for remedy, the excluded parties can intervene as a matter of right at the remedy stage of the litigation where the remedy imperils a cognizable interest of theirs.

Timely motion to intervene on a Settlement Agreement can relate back to establish timeliness for a class certification intervention where the composition of the class is not fixed.

Interests of the parties as an element of adequacy of representation can shift between liability stage and remedy stage.

Franklin Benjamin v. PA Department of Public Welfare

DC Circuit -- Judicial Watch, Inc. v. SSA

As the employer is considered a taxpayer, FOIA request for list of employers with the greatest number of SSN mismatches was properly denied under Exemption 3.

Judicial Watch, Inc. v. SSA

Eleventh Circuit -- USA v. Rodney Edward Thompson

Restoration of the right to vote insufficient restoration of civil rights to bar consideration of the prior conviction in sentencing.

USA v. Rodney Edward Thompson

Eleventh Circuit -- USA v. David Bishop Laist

(From summary) 25 Day delay in getting search warrant for impounded computer not unreasonable.

USA v. David Bishop Laist

Tenth Circuit -- Daniels v. United Parcel Service, Inc.

Discrimination claim time-barred.

Futility defense not available.

Trial court did not err in denying relief on merits.

Daniels v. United Parcel Service, Inc.

Tenth Circuit -- Hancock v. AT&T

Arbitration terms in clickwrap contract of adhesion bind, as they're not hidden, and the agreement is encountered before encountering the content.

Two TOS agreed to at different times can both bind.

Many smaller evidentiary holdings.  Just scrolled through as running late.  Ironic.

Hancock v. AT&T

Ninth Circuit -- DERRICK LOFTIS V. ALMAGER

Non-Alford nolo contendere without a factual basis is not cognizable on federal habeas review.

Concur in J: Secondary documents (eg PSR) can establish.

Dissent - Citation to state precedent established a de facto Alford.



DERRICK LOFTIS V. ALMAGER

Ninth Circuit -- JAIME MEDRANO V. FLAGSTAR BANK, FSB

Challenging the terms of the loan is not a communication triggering a statutory duty for the lender to reply.  It's just rude.

JAIME MEDRANO V. FLAGSTAR BANK, FSB

Eighth Circuit -- United States v. Jeraldon Green

Material and potentially adverse conflict in the present litigation does not justify the application of the Circuit's per se reversal rule where a PD represents deft at arraignment and then represents material witness at trial and the court does not inquire into the conflict.

United States v. Jeraldon Green

Seventh Circuit -- USA v. Mauricio Gonzalez-La

Probation revocation sentence imposed prior to deportation counts in the sentencing bump for conviction upon illegal reentry.

No error in court not applying cultural assimilation sentencing reduction, given deft's frequent convictions.

USA v. Mauricio Gonzalez-La

Seventh Circuit -- Michael Moore v. Lisa Madigan

Second Amendment arms-bearing is protected outside the home as well as inside the home.  Reason: at the time of the founding it was more perhaps dangerous outside than it was inside.  And there's no policy justification for the statute at issue.

State would have had to prove 'more than a rational basis' for the law to stand against 2A.

Dissent - Off the McDonald/Heller continuum - carrying outside is intrinsically more dangerous and susceptible to regulation, as evinced by the frequent regulation of it.

[Again, folks, these are quick summaries.  Especially today.  Entertainment value only.]



Michael Moore v. Lisa Madigan

Sixth Circuit -- Paul v. Kaiser

District court erred in denying remand to state court, as the plaintiff's suit is not inextricably intertwined with CBA terms -- no preemption, no need to move to the Federal Courts.

Paul v. Kaiser 

Fifth Circuit -- Gaspar Esparza Rodriguez v. Eric Holder, Jr

No error in BIA modified categorical holding that assault statute was a sufficient predicate as a crime of moral turpitude, given Chevron deference on definition of moral turpitude.

Gaspar Esparza Rodriguez v. Eric Holder, Jr

Fifth Circuit -- Asarco, L.L.C., et al v. Barclays Capital, Inc.

Error in Bankruptcy Court award of fees, as the costs were foreseeable.



Asarco, L.L.C., et al v. Barclays Capital, Inc.

Third Circuit --In Re: Grand Jury v.

No jurisdiction over discovery order privilege claim controversy until finding of contempt.

Exception to this affecting third party subpoenas to parties with not enough of a vested stake to risk contempt has not been narrowed in scope by recent Scotus holdings on finality of orders.

If privilege holder is capable of receiving documents and does not challenge to the point of contempt, it is a waiver of privilege.

Reasonable basis for belief in crime/fraud is enough to break the attorney-client privilege.

Trial court did not abuse discretion in finding that communications were used for crime/fraud.

Court did not err in denying the privilege for specific documents.

Concur/Dissent:  ACR is an imperfect agency - as client might not be able to demand return of documents when court issues subpoena, third-party exception should apply.

[Again, folks, this is a summary after a skim - entertainment purposes only.]

In Re: Grand Jury v.

Second Circuit -- Ment Bros. Iron Works Co. v. Interstate Fire & Casualty Co.

Property was properly described as an apartment building according to the terms of the contract.

Ment Bros. Iron Works Co. v. Interstate Fire & Casualty Co.

Second Circuit -- Gutierrez v. Smith

Change in the elements of the statute gives petitioner sufficient 'cause' for habeas, given lack of contemporaneous objection.

Sufficient unto the case was the evidence thereof.

No certification of question, given burden on NY courts.

Gutierrez v. Smith

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 

First Circuit -- Alejandro-Martinez v. Ortiz-Vazquez

Simple reassertion of claim not enough to reverse a 12(b)(6) dismissal.  Dismissed with prejudice, and show-cause on award of double costs.

Alejandro-Martinez v. Ortiz-Vazquez

Ninth Circuit -- USA V. MICHAEL SIMARD

Unequivocal assertion of ownership (as distinct from possession) suffices for Article III standing to state a claim in a civil forfeiture case.

USA V. MICHAEL SIMARD

Eighth Circuti -- United States v. Luis Jasso

No confrontation clause error in barring deft from crossing on old priors that would have made the witness subject to habitual offender law, as witness disclaimed knowledge of habitual offender risk.

 No error in introduction of evidence as to brother's priors, as it was within the pendency of what was alleged to be a family conspiracy.

United States  v.  Luis Jasso

Eighth Circuit -- United States v. Ted Grauer

When an expert witness testifies that a crime scenario is rare or nonexistent, trial court correctly held that cross can inquire into three specific instances, but four is more prejudicial than probative.

 Reference in closing to specific examples earlier was properly allowed, as the other side opened the door by casting doubt on possibility.

Sufficient evidence for knowing possession, as images were recoded on deft's computer.

For misrepresentation sentencing bump, specific misrepresentation of age is less important that overall deception.

United States  v.  Ted Grauer

Seventh Circuit -- Timothy Harney v. City of Chicago

No abuse of discretion in introduction of videotape at summary judgement stage where the tape substantially varied from the tape alleged in the complaint, so long as the relevant portions are the same.  No abuse of discretion in ruling on the motion even if the tape is ultimately inadmissable, as the person alleged to have seen the tape was available to testify.

Complaint and ambiguous videotape enough to defeat S1983 false arrest claim.

No curtilage rights in gated path to condo, as it is a shared area.

When resident told police officer to wait at the door and turned and walked down the hall and the police officer followed her, the police entry into the house was consensual, absent her protest.

No error in award of costs.

Timothy Harney v. City of Chicago

Sixth Circuit -- Gary Fields v. Henry County, Tennessee

County requirement that all domestic violence arrestees who are judged to pose a threat to the victim be detained for twelve hours (which, in practice, was extended to all domestic violence arrestees) does not violate 8th Amendment.

Challenging the systematic nature of a bond schedule is a due process claim.

No denial of bail in 12 hour hold - there is no right to speedy bail.

State pretrial hearings requirements are not constitutionally protected liberty interests for purposes of a Due Process claim.

Under Tennessee law, deft must prove feasibility of release on recognizance - bail is the default.

Gary Fields v. Henry County, Tennessee

Federal Circuit -- RAYLON, LLC. V. COMPLUS DATA INNOVATIONS, INC.

In the Fifth Circuit, Rule 11 is an objective inquiry, not a subjective one.  Denial of sanctions after inquiry into motives was therefore an abuse of discretion.

Claim for fees inextricably linked to Rule 11 analysis - remand to assess.


RAYLON, LLC. V. COMPLUS DATA INNOVATIONS, INC.

Federal Circuit -- COMINT SYSTEMS CORP. V. U.S.

Company did not sufficiently preserve its objections to the bidding process, as they were not raised prior to the award of the contract.

Company did not establish that its quality ratings were arbitrary or capricious.

COMINT SYSTEMS CORP. V. U.S.

Eleventh Circuit -- 907 Whitehead Street, Inc. v. Secretary of the U.S. Department of Agriculture, et al

Hemmingway museum, which allows the progeny of Hemmingway's cats to frolic & detour on the grounds, is subject to the Animal Welfare Act, as, according to an Agriculture Dept. interpretation,  the act of making the animals available to the public constitutes a distribution.  Chevron deference.  Sufficiently affects interstate commerce.

(No bull.)

907 Whitehead Street, Inc. v. Secretary of the U.S. Department of Agriculture, et al

Tenth Circuit -- Monge v. RG Petro-Machinery

Equipment built & purchased in China, purchased by a company in one state, consigned to a company in another state, then moved to a third state by the consigneee.  Where it injured someone.

No error in summary judgement holding that no reasonable factfinder could find that defeat of safety device created a knowing substantial certainty of injury.

Summary judgement on this didn't require any findings of causation reserved to the jury.

Where deponent delays in certifying the deposition, the late-filed deposition is not a grounds for a motion to alter or amend the verdict based on new evidence, as the party could have asked the court to delay the summary judgement motion until after the deposition was properly entered.

No personal jurisdiction over Chinese manufacturer, as the equipment ended up in the forum state due to the actions of a third party.  Scattered phone contacts, emails and visits not enough to overwhelm.  Stream of commerce analysis still requires purposeful direction.  Contacts with forum state insufficient for general jurisdiction.


Monge v. RG Petro-Machinery

Seventh Circuit -- Patricia A. Muscarel v. Winnebago

While an adjacent wind farm might create a taking under Illinois law, the zoning regulation challenged only makes it easier for such things to be built - the plaintiff sustains no harm from the statute itself. 

Legislative concern, not judicial.

Substantive due process claim would apply to the decision to authorize the wind farm, not the change in the statute.


Patricia A. Muscarel v. Winnebago

Seventh Circuit -- USA v. Joshua Henry

Judge does not have to inform deft that sentence may run consecutively with other sentences for guilty plea and appellate waiver to be valid -- merely has to inform of maximum in present proceeding.


USA v. Joshua Henry

Seventh Circuit -- USA v. Dewayne Preacely

Trial court did not rr in finding violation of supervised release, given deft's involvement in tax preparation industry.

Vagueness of statute must be asserted on direct appeal or collateral attack, not revocation hearing.

Within guidelines sentence reasonable.

USA v. Dewayne Preacely

Fourth Circuit -- Benjamin Reynolds v. American National Red Cross

ADA Amendments Act of 2008 applies prospectively.  Circuit split flagged.

Inability to heavy things is not a disability.  And the plaintiff can lift things.

As plaintiff did not place medical records into evidence, burden of production for record of qualifying disability not met.

Employer didn't believe that the plaintiff had a qualifying disability, as he kept asking the plaintiff to lift things.

Filing a workman's comp claim is not per se a basis for a retaliation suit if subsequently terminated.

No unauthorized disclosure of medical condition, as it was information shared among friends.

Title VII workplace headcount aggregation standards apply to ADA suits. (Dictum, as cross-appeal denied)

Benjamin Reynolds v. American National Red Cross

Second Circuit -- United States v. Daley

Lack of notice to alien prior to removal order was not fundamentally unfair, as, given the record as it stood at the time of the hearing, the alien would have had no reasonable chance of challenging the order.


United States v. Daley

Federal Circuit -- PREGIS CORP. V. KAPPOS

Substantial evidence for obviousness claims.

Third party cannot file suit under APA to challenge PTO denial of patent.  Patent Act specifies Article III review channels.


PREGIS CORP. V. KAPPOS

Federal Circuit -- IN RE YAMAZAKI

When the initial patent is subject to a terminal disclaimer, that disclaimer modifies the underlying duration of the patent, and a subsequent statutory reissue is therefore subject to it.

IN RE YAMAZAKI

Ninth Circuit -- USA V. MARC KEYSER

Sending out fake anthrax in the mail is not protected speech under the First Amendment, given the intent to threaten.

Envelope addressed to "manager" satisfies statutory requirement that it be addressed to a natural person.

No error in declining jury instruction requiring acquittal if no one would actually believe that the package contained the toxin.

An instruction requiring jurors to look beyond the literal words of the mailing sufficed for the statutory requirement that the words be taken in context.

Reasonable, if brief, discussion of reasonable person standard.

Extremely problematic statement in prosc's closing ultimately inconsequential.

Court erred in imposing govt cost sentencing bump for unconvicted offenses.

USA V. MARC KEYSER

Ninth Circuit -- ADILAO ORTIZ V. JAMES YATES

State Appeals Court holding - that trial court did not err in barring deft from asking witness if the prosecutor had threatened her with perjury if she changed her story - was an unreasonable application of federal Sixth Amendment jurisprudence.

 Dissent - Harmless error under Confrontation Clause

ADILAO ORTIZ V. JAMES YATES

Eighth Circuit -- United States v. Randeep Mann

Absence of a sitting grand jury in the jurisdiction automatically converts Speedy Trial Act 30 day indictment clock to a 60 day clock.

One set of counts passes Blockberger test, since interstate commerce term is different in the two statutes; another passes, as one statute requires certain property to be in the US; a third does not, as effective date of statute is an affirmative defense, not an element. 

Possessing illegal machine gun is not multiplicitous with not registering (illegal) machine gun.  Circuit split flagged.

Bill of particulars did not constructively amend indictment.

Joinder proper, except for charge relating to grenades purchased seven years before and not used.  No prejudice, though.

Sufficient evidence.

Evidence at trial not variance from indictment.

No error in murder sentencing bump, as the grenade bomb was intended to do precisely that.

Head of the state medical board - an organization not funded by the state - is a state officer for purposes of sentencing bump.

Allegation in PSR insufficient to impose sentencing bump.

Error in imposing sentencing bump for altered serial numbers, as grenades don't have serial numbers.

Concur/Dissent - no proof that the car used was also used in interstate commerce.

United States  v.  Randeep Mann

Sixth Circuit -- Southeast Waffles, LLC v. U.S. Dep't of Treasury/IRS

Fraudulent transfer statutes do not classify noncompensatory tax penalties as potentially fraudulent transfers.


Southeast Waffles, LLC v. U.S. Dep't of Treasury/IRS

Sixth Circuit -- Marcus Middlebrook v. Robert Napel

State appeals court did not unreasonably apply relevant federal law when holding that trial court had sufficiently investigated charges of jury misconduct.  One juror was alleged to have told the others that the deft's associates were quite dangerous, and that they should watch their back.

 No Scotus precedent on premature adjudication claims, so no AEDPA basis for collateral attack.

Marcus Middlebrook v. Robert Napel

Fifth Circuit -- Robert Morris v. Mike McAllester, et al

An early termination of probation does not constitute an exoneration sufficient for a S1983 suit.

Dismissal of collateral attack on conviction for mootness due to the termination of probation does not change the equities of the exoneration.

Restoration of civil rights is not exoneration.

Robert Morris v. Mike McAllester, et al

Fourth Circuit -- US v. Patrick Caporale

District Court erred by holding that a certain disorder could never be a qualifying disability under the civil confinement statute, but no clear error in the holding that petitioner was insufficiently likely to re-offend.

US v. Patrick Caporale

Fourth Circuit -- US v. Daniel Brown

Police officers properly seized laptop from EMT's ambulance, despite warrant only being for the building -- exigency allows discretion.

Court did not err in striking the lesser-included offense from the conviction prior to sentencing.


US v. Daniel Brown

Third Circuit -- Marie Ann Fuges v. Southwest Financial Services

Safeco FRCRA safe-harbor does not require parties to have made their reasonable interpretation ex ante - the court merely inquires at the time of trial whether the interpretation is reasonable.

Property reporting company's interpretation of FCRA (holding itself to be no regulated by the statute) was not objectively unreasonable.

Marie Ann Fuges v. Southwest Financial Services

Second Circuit -- MAN Ferrostaal, Inc. v. M/V Akili

Vessel's in rem liability for damage to cargo is common-law, not statutory.  Statute assumes the fact of liability, it doesn't create the cause of action.

Even if vessel is outside of the statutory description, common-law liability can still attach.

Terms of charter party bar waiver of in rem liability.

Entirety of terms of statute or agreement referenced between parties attach, regardless of Appliciability Provision in the referenced agreement.

Bailment theory allows in personam liability.

MAN Ferrostaal, Inc. v. M/V Akili

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

First Circuit -- US v. Jones (12/5)

Where a tip comes in on a car, and corroboration establishes that the people most likely to be in the car have been implicated in drug investigations, there's enough reasonable suspicion for a stop.

No de facto arrest upon convergence of multiple vehicles, agents with drawn weapons, and handcuffs.

No clear error in trial court's holding that drugs were in plain sight.

Massachusetts assaulting a police officer statute is a valid predicate for career offender status.

If a deft is resentenced after parole violation, the two sentences are summed for assessing the lookback period for career offender status.

Deft's priors appropriately considered, despite scrivening errors in records.

US v. Jones

First Circuit -- US v. Neris-Ruiz (12/5)

 Appeal waiver in plea upheld.

Ineffective assistance dismissed without prejudice.

US v. Neris-Ruiz

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