Eleventh Circuit -- Delgado v. Florida Department of Corrections

No double jeopardy where Appeals Court sets aside the conviction for a faulty legal theory as opposed to an insufficiency of the evidence.

State's theory on burglary was TKO'd on appeal - felony murder and premeditated murder were tied to it.  (The latter as an included offense.)

Delgado v. Florida Department of Corrections 

 [Thou shalt not kill.  TMB.]

Tenth Circuit -- Twigg v. Hawker Beechcraft Corporation

District Court correctly TKO'd S1981 and FMLA retaliation claims for lack of proof.

Twigg v. Hawker Beechcraft Corporation

Ninth Circuit -- USA V. MICHAEL MCENRY

District Court erred in sentencing deft convicted of noncommercial piloting without a license according to the range for interfering with the safety of an aircraft - the correct comparator is piloting a commercial airplane without a license.

Look to the categorical offense, not the conduct.


USA V. MICHAEL MCENRY

Ninth Circuit -- USA V. GREGORY REYES

No prosecutorial misconduct in advancing theory of self-dealing despite structural bars in the operation which woould have barred self-dealing - govt was forthright.


No prosecutorial misconduct in testimony, as not demonstrably false.

No error in materiality finding, given impact on general financials.

Restatement of earnings not dispositive, but part of the total mix.


USA V. GREGORY REYES

Ninth Circuit -- USA V. LENNY URENA

No abuse of discretion in not issuing self-defense instruction where deft was prisoner responding to a slur with a shank.

No error in limiting cross of MD to extent of injuries, not cause of injuries.

No procedural error in sentence, as change in guideline was not retroactive.


USA V. LENNY URENA

Ninth Circuit -- MONTANA CONSUMER COUNSEL V. FERC

Chevron deference to administrative order setting reasonable pricing in light of market rates.


No burden on agency to verify markets empirically.


MONTANA CONSUMER COUNSEL V. FERC

Eighth Circuit -- Christian Escoto-Castillo v. Janet Napolitano

 Petition for immigration review TKO'd for not exhausting administrative remedies & requiring grounds not in the record.


(Said grounds: state court sentencing order of 364 days, and the predicate requires a one year sentence.)


Christian Escoto-Castillo v. Janet Napolitano

Eighth Circuit -- Chanh Lovan v. Eric H. Holder, Jr.

 Where deportation waivers were available prior to non-retroactive repeal of enabling statute, the particulars of a petition must be weighed as they would have been prior to the repeal - not according to the later administrative rules designed to exclude those categories of offenses covered by the earlier statute.

Chanh Lovan v. Eric H. Holder, Jr.

Eighth Circuit -- SEC v. Sherwin Brown

 District Court did not err in issuing summary judgment without allowing deft to respond, as deft invoked 5A after responding to the interrogatory that he now wishes to use.

Disgorgement was appropriate remedy.

Dissent - Inadequate showing of need for equitable remedy of disgorgement; striking pre-5A interrogatories overbroad.

SEC v. Sherwin Brown

Fifth Circuit -- Robert Evans, et al v. Sterling Chemicals, Inc.

Asset Purchase Agreement effectively amended ERISA plan.

Although subsequent rejection in bankruptcy negatived the contractual basis of the agreement, the ERISA guarantee is stronger.

Robert Evans, et al v. Sterling Chemicals, Inc.

Fifth Circuit -- Oscar Jimenez, et al v. Texas Alcoholic Beverage Comm.

 No plain error in District Court's S1983 instruction that reasonable suspicion was required for strip-searches of prisoners suspected of minor offenses.

Even though instruction was in accord with precedent, no futility exception - objection was not preserved at trial.

No abuse of discretion in instruction holding that Hindering Apprehension was a minor offense as a matter of law.

Dissent - Objection preserved, decision not in accord with Scotus precedent holding that the criterion is the effective operation of the detention facility, not the specific crime of the prisoner. 

Dissent 2 - Not in accord with the Scotus precedent.

Dissent 3 - Search not required if detainee doesn't enter general population.

Oscar Jimenez, et al v. Texas Alcoholic Beverage Comm.

First Circuit -- US v. Pleau

Once the Federal Government has sought custody of a prisoner under the IAD, it cannot by writ of ad prosequendum circumvent the statutory power of a Governor to decline to surrender custody.

Appropriate standard is that for advisory writs, not usual madamus/prohibition.

Absent IAD, State would have to honor the writ.

DISSENT:  Writ has been validly issued.

US v. Pleau 

[Thou shalt not kill.  - TMB]

First Circuit -- US v. Rodriguez

Massachusetts Larceny From the Person statute is an ACCA predicate.

US v. Rodriguez

First Circuit -- Bucci v. US

Habeus 6A claim resulting from the partial closure of the courtroom during jury selection (abundance of venirepersons) was procedurally defaulted given lack of objection at trial.

Ineffective assistance claim does not save, as counsel might have reasonably have decided not to object.

No error in conducting 2255 hearing without petitioner.

Remand for hearing as to whether codeft's counsel was in the room at the time.

No Article III violation in the room being closed by clerk.

No Brady violation - no prejudice.

No coercion of prosc. witness.

Bucci v. US 

Federal Circuit -- ROBERT BOSCH LLC. V. PYLON MANUFACTURING CORP.

Lower court erred in not issuing temporary injunction for patent infringement, given clear irrepearble harm from loss of market share.

Good overview of post-Ebay injunciton law, patent-ways.

ROBERT BOSCH LLC. V. PYLON MANUFACTURING CORP.

DC Circuit -- USA v. Bryan Burwell

Going to en banc & rebriefing.

USA v. Bryan Burwell

Eleventh Circuit -- Camilo Ernesto Sanchez Fajardo v. U.S. Atty. Gen.

BIA erred in going beyond modified categorical approach by examining particulars of offense in determining that False Imprisonment conviction was a crime of moral turpitude.

Camilo Ernesto Sanchez Fajardo v. U.S. Atty. Gen.

Ninth Circuit -- STEVEN JAMES V. DORA SCHRIRO

Habeus granted for ineffective assistance in penalty phase.

Claim not procedurally barred, as no firmly established state procedural rule at the time.  Raised in first State PCR, and therefore barred by "law of case" in subsequent PCR, which therefore cannot be grounds for waiver.

STEVEN JAMES V. DORA SCHRIRO

[Thou shalt not kill.  - TMB]

Ninth Circuit -- RUSSELL COUNTRY SPORTSMEN V. USFS

Wilderness plan offends neither NEPA nor state law by further restricting motorized activity.

RUSSELL COUNTRY SPORTSMEN V. USFS

Eighth Circuit -- Patti J. Sullivan v. Raymond Welsh

 Decision to transfer property that otherwise would be exempt under state homestead exemption means that Bankruptcy Code fraudulent transfer provisions apply.

"No harm, no foul" rejected.

Patti J. Sullivan v. Raymond Welsh

Fifth Circuit -- In Re: Cecil Bradford

Republished.  Possibly, errata?

In Re: Cecil Bradford

Third Circuit -- Jane Doe v. County of Luzerne

District Court erred in dismissing 14A privacy claim, as police officer undergoing unclothed de-fleaing in decontamination chamber had a cognizable interest.

As videotaping of officer was not undertaken in the furtherance of an investigation, 4A not implicated.

No error in dismissal of failure to train claim.

Jane Doe v. County of Luzerne

Third Circuit -- Nicole Delalla

Thirty day window to remove to state court runs from service on individual deft, not first deft in suit.

Nicole Delalla

Nicole Delalla v. Hanover Ins Co

First Circuit -- US v. Garcia-Hernandez

Categorically, violations of knock & announce do not exclude evidence in subsequent lawful search.

Exclusionary remedy not available for 4A excessive force claims.

Management sentencing bump applies so long as deft supervises at least one of the group.

Concurrence - Expounding further upon the Constitution would give the police brighter lines.

US v. Garcia-Hernandez

First Circuit -- Colon-Fontanez v. Municipality of San Juan

Insufficient information in record to overrule finder of fact's holding that exhibits offered in evidence weren't properly translated.

No error in court's allowance of paralegal-prepared chart summarizing voluminous writings.

Employee's excessive absences TKO qualified individual status under ADA.

Retaliation claim TKO'd for causation.  No error in dismissal of hostile work environment claim.

Colon-Fontanez v. Municipality of San Juan

First Circuit -- US v. Rogers

Erratum.

US v. Rogers

Second Circuit -- Joseph, et. al v. Hyman, et. al

District Court correctly dismissed federal challenge to state Manhattan parking tax.  

Tax Injunction Act limits remedies; Abstention for comity.

Joseph, et. al v. Hyman, et. al

DC Circuit -- Dick Heller v. DC

D.C. Gun control laws authorized by statute.

Basic registration scheme does not impinge on 2A guarantees.

Aspects of current registration scheme implicate 2A under intermediate scrutiny - remand for facts.

Prohibitions on assault weapons survives intermediate scrutiny.

Dissent - Ban on semiautomatics & registration scheme unconstitutional under Heller.

Dick Heller v. DC

DC Circuit -- USA v. Abdul Khanu

Tax - govt corrctly established deficiency by "cash" method (spending outpaces reported income); deft's insistence that he underreported cash on hand at beginning of year does not avail.

No need to reach question of whether govt-confiscated funds from deft's safe were in custody of deft, as other funds establish the deficiency.


USA v. Abdul Khanu

Eighth Circuit -- Estrella Valencia v. Eric H. Holder, Jr.

Immigration petitioner's ineffective assistance claims were not supported by a showing of prejudice; BIA did not abuse discretion to hear claim.

Estrella Valencia v. Eric H. Holder, Jr.

Eighth Circuit -- Victoria Johnson v. James Carroll

 Appropriateness of force during arrest a matter for trial, given contested facts.

Remand for consideration of costs for state law claims.

Summary judgment granting qualified immunity for state law claims was error.

Dissent - Officers used appropriate force.

Victoria Johnson v. James Carroll

Eighth Circuit -- James Riley v. Sun Life and Health Insurance

 District Court erred in holding that VA benefits could be offset in employer-provided long term disability benefits - VA is not similar to SSA, as the Plan requires.

Dissent - Abuse of discretion appropriate, not de novo.  Administrator's decision was kosher.

James Riley v. Sun Life and Health Insurance

Eighth Circuit -- Caleb R. Sturge v. Northwest Airlines, Inc.

ERISA Claim will not lie as court has no jurisdiction (as it has nothing to do with a CBA) and plaintiff did not establish causation between the dismissal and his pending claim.

Caleb R. Sturge v. Northwest Airlines, Inc.

Federal Circuit -- BOND V. SHINSEKI

VA appeals claims must be evaluated both in relation to pending claims and with respect to potential new claims.

BOND V. SHINSEKI

Federal Circuit -- ABSOLUTE SOFTWARE v. STEALTH SIGNAL

Error in summary judgment on IP tracking patent infringement claim, as nothing in record as to whether device reports one or two IP's.

Conjunctive/disjunctive "or."

No error in literal/equivalent findings of non-infringement.

No errors in construction generally.

ABSOLUTE SOFTWARE v. STEALTH SIGNAL

Federal Circuit -- TIANRUI GROUP CO v. ITC

International Trade Commission can investigate and grant relief based on extraterritorial conduct in violation of trade secret regulations of the Tarriff Act.

Dissent: No, it can't.

TIANRUI GROUP CO v. ITC

Ninth Circuit -- MEZA-VALLEJOS V. HOLDER

Where a period of voluntary departure ends on a holiday, weekend, or any day in which the courts are not open to the petitioner, the period constructively ends on the first subsequent business day.

Skidmore (lack of) deference.

MEZA-VALLEJOS V. HOLDER

Eighth Circuit -- Forrest Allred v. Gilbert Vilhauer

 Finder of fact's determination that not too many cattle were burned in the burn pit is not erroneous.

Forrest Allred v. Gilbert Vilhauer

Eighth Circuit -- Diane Marie Banks v. Kondaur Capital Corporation

 Where creditor has not produced bearer note, summary judgment for creditor is inappropriate.

Diane Marie Banks v. Kondaur Capital Corporation

Eighth Circuit -- United States v. Jason Todd Garreau

 District Court holding of inevitable discovery affirmed on grounds of valid inventory search.

United States v. Jason Todd Garreau

Seventh Circuit -- USA v. Roger Loughry

District Court abused discretion in not reviewing pr0nographic tapes before ruling on 403 objection.

Error in not explaining ruling sufficiently.

Introduction of offline pr0n was unduly prejudicial for online pr0n prosecution.

USA v. Roger Loughry

Seventh Circuit -- Jeremy Greene v. John Doruff

In a 1A tort claim, plaintiff must establish that there was sufficient probability that the action was prompted by the illicit motive; the burden then shifts to the deft to establish that the action would have been undertaken without the motive. 

Jeremy Greene v. John Doruff

Fourth Circuit -- US v. Torrell Vann

Majority per curiam - For purpose of modified categorical analysis of priors, where the wording of the plea/indictment tracks two sections of the statute, the deft does not necessarily plead to violating both.

Concurrence - Categorical approach mandatory & dispositive.  Statute isn't an ACCA predicate.

Concurrence - Residual priors a hopeless muddle under Taylor.

Concurrence - Categorical required, as elements of statute aren't cleanly divisible.

Concurrence - Although the state supreme ct. has held the statute to be a single offense, plain text reading of statute reveals the disjunctive elements.

Concurrence - statute too broad, Shepard docs unilluminating.

C/D - Modified categorical = valid predicate.

US v. Torrell Vann

Procrastination

4 more in the Eighth, 1 in DC Circuit, 1 in Federal Circuit.  Monday.

Eighth Circuit -- Marcel Williams v. Ray Hobbs

 No Ex Post Facto violation from increased punishment given Arkansas' removal of anesthesia from the list of substances to be administered at imposition of death penalty.

No Due Process violation in freedom accorded Corrections Dept. to vary procedures.

Marcel Williams v. Ray Hobbs

[Thou shalt not kill - TMB]

Seventh Circuit -- Belinda Egan v. Freedom Bank

Repost from yesterday.  Errata, perhaps?

Belinda Egan v. Freedom Bank

Fifth Circuit -- In Re: Cecil Bradford

Circuit has unreviewable jurisdiction over claim that a habeus claim was inappropriately recategorized and transferred to the Circuit.

2241 Petition appropriately categorized as a successive 2255 petition, as Circuit precedent holds that reclassification of predicate offenses is not a legitimate basis for a claim of "conviction of a nonexistent offense."

In Re: Cecil Bradford
Cecil Bradford v. Rebecca Tamez

Third Circuit -- Muhammad Malik v. Atty Gen USA

Erratum.

Muhammad Malik v. Atty Gen USA

Third Circuit -- Sunoco Inc Subsid v. Comm IRS

Errors on overpayment interest are a matter for the Court of Federal Claims, not the (Article I) Tax Court.

Sunoco Inc Subsid v. Comm IRS

Third Circuit -- USA v. Daniel Siddons

Erratum.

USA v. Daniel Siddons

Third Circuit -- Animal Science Prod Inc v. China Minmetals Materials Imports

Erratum.


Animal Science Prod Inc v. China Minmetals Materials Imports

First Circuit -- Rosciti v. Insurance Company

Where a Rhode Island company self-insures and then goes bankrupt during pendency of liability suit, contract term prohibiting supplementary insurer from contributing until the company's retained limit had been paid out is unenforceable as contrary to public policy.

Rosciti v. Insurance Company

First Circuit -- Goncalves v. Plymouth County

Summary judgment on plaintiff's state law discrimination and ADEA claims appropriate where plaintiff hasn't established she was qualified to do the job.


Goncalves v. Plymouth County

TMB Reaches 1000 Posts

This post is the 1,001st.

That's more web posts than St. Thomas Aquinas, Proust, Diderot, and Samuel Johnson combined.

Federal Circuit -- BETTCHER INDUSTRIES, INC. V. BUNZL USA, INC.

Complex patent case - jury might reasonably have found infringement where competitor's products 'wear down' to a similar shape and function. 

Deft had adequate time to press claim construction at trial, no error in jury instructions.

(Again, these quick summaries are hardly comprehensive and quite possibly incorrect.)

Dissent - Patent void for anticipation.

BETTCHER INDUSTRIES, INC. V. BUNZL USA, INC.

Federal Circuit -- ROMERO V. DEPT. OF DEFENSE

DOD complied with correct procedures in revoking security clearance.

ROMERO V. DEPT. OF DEFENSE

Federal Circuit -- LEMANS CORP. V. U.S.

Motocross haberdashery correctly categorized by Customs svc.

LEMANS CORP. V. U.S.

Federal Circuit -- BLEDSOE V. MERIT SYSTEMS PROTECTION BOARD

No review available for Board decision declining to provide alternate work assignment for recuperating Postal worker.

Dissent - Board should have affirmed the administrative decision, not dismissed the appeal.

BLEDSOE V. MERIT SYSTEMS PROTECTION BOARD

Federal Circuit -- MEZZALINGUA ASSOCIATES, INC. V. INTERNATIONAL TRADE COMMISSION

"Domestic industry" element of Tariff Act not met.

Dissent.

MEZZALINGUA ASSOCIATES, INC. V. INTERNATIONAL TRADE COMMISSION

Federal Circuit -- ENGAGE LEARNING, INC. V. SALAZAR

Court of FC has jurisdiction over any express or implied contract with US.

Decision should be made on merits, not jurisdiction.


ENGAGE LEARNING, INC. V. SALAZAR

Federal Circuit -- IN RE STEPAN CO.

Deft did not have adequate warning of Board's new grounds for rejection of examiner's decision.


IN RE STEPAN CO.

Federal Circuit -- IGT V. BALLY GAMING INTERNATIONAL, INC.

Claim construction for gambling machines networking patent.

IGT V. BALLY GAMING INTERNATIONAL, INC.

Federal Circuit -- ATLANTIC RESEARCH MARKETING SYSTEMS, INC. V. TROY

Patent correctly invalidated for lack of adequate written description.

Can't argue that someone stole your patented trade secret. (As patents aren't secret.)

Mistrial granted, as juror brought prop from home, and court did not poll jurors as to possible prejudicial effects.

Multiple Allen charges are kosher in First Circuit law.


ATLANTIC RESEARCH MARKETING SYSTEMS, INC. V. TROY

Eighth Circuit -- Kreisler & Kreisler, LLC v. National City Bank

Given wording of loan agreement, when successor in interest lender moves from exact interest to bank interest in calculating the interest on a loan, borrower has no viable claim.

Kreisler & Kreisler, LLC v. National City Bank

Eighth Circuit -- Clayton Miller v. Mark Albright

 No plain error in denial of nominal damages after verdict against S1983 deft where there was no nominal damages jury instruction.

Clayton Miller v. Mark Albright

Seventh Circuit -- USA v. Joseph Persfull

Bankruptcy fraud conviction upheld, as debtor did not timely inform trustee of inheritance received on the day that debts were discharged.

USA v. Joseph Persfull

Seventh Circuit -- Belinda Egan v. Freedom Bank

Summary judgment inappropriate on Title VII gender discrim claims, given two sets of potentially plausible stories.

No jurisdiction to review magistrate's orders.

Belinda Egan v. Freedom Bank

Seventh Circuit -- USA v. Terrance McCauley

A bare-bones description and location is sufficient probable cause for an arrest.

If someone says that they saw you at the beatn' and you're arrested with a baseball bat, that's a dangerous weapon sentencing bump.

USA v. Terrance McCauley

Fifth Circuit -- Don Wesley v. General Drivers, et al

Errata.

Don Wesley v. General Drivers, et al

Fifth Circuit -- Wal-Mart Stores, Inc. v. Qore, Inc.

Where architect indemnified client against negligence claims, that contract provision can operate to compel the architect to cover fees when client successfully sues it for negligence.

BUT as K only indemnified against derivative acts of the negligence, the broad-based nature of suit means no recovery.

Wal-Mart Stores, Inc. v. Qore, Inc.

First Circuit -- Donahue v. FBI

Denial of en banc.

"Statement" - FTCA rule is absolute.

Dissent - The FBI done bad.  Sovereign Immunity has no constitutional foundation.

Dissent2 - Circuit has bias against en banc.  Injustice of outcome.

Donahue v. FBI 
The Estate of Edward Brian Hal v. US 
Donahue v. United States

And Tomorrow and Tomorrow. . . .

TMB is a few days behind on the Federal Circuit.  We'll make up the ground by the end of the week, if the crick don't rise.

Ninth Circuit -- DION STARR V. COUNTY OF LOS ANGELES

En banc denied.

Dissent - pleading not up to Iqbal standards.

DION STARR V. COUNTY OF LOS ANGELES

Eighth Circuit -- Yehud-Monosson USA, Inc. v. Habbo Fokkena

 Bankruptcy Court did not err in converting Chapter 11 filing to Chapter 7.

Yehud-Monosson USA, Inc. v. Habbo Fokkena

Eighth Circuit -- United States v. Robert Cole

 Manager/supervisor sentencing bump correctly applied, as deft had someone drive him to St. Louis.

Sentence substantively reasonable.

United States v. Robert Cole