To see the New York Supreme Court Appellate Division First Department decisions (including index) released on January 31, 2008, click on the links below
Dennis Bellamy v. Columbia University
Proceeding for Judicial Declaration of Death of Sneha Anne Philip
In Re
Lisa Sombrotto M.D. etc.
In Matter of Michael Caligiuri
Electronic Hein Cites
Issue 408
________________________________________________
Screening Justice - The Cinema of Law:
Significant Films of Law, Order and Social Justice
This recent publication from Hein contains more than 50 essays written by 50 legal scholars, professionals and professors, focusing on significant films about law, order and social justice. The essays selected for the book address a rich and diverse variety of films and issues, from justice in Nazi Germany to the American Dust Bowl to the role of military justice.
Sexual Orientation and the Law
A Research Bibliography Selectively Annotating Legal Literature Through 2005
AALL Standing Committee on Lesbian and Gay Issues
This indispensable research bibliography on sexuality issues is now available from Hein. This new edition aims to provide guidance to all librarians in both developing a core collection of relevant material and in providing research assistance to professors, students, attorneys and judges. It features 877 new entries and 235 new cases.
The Law and Mr. Smith
In this new acid-free reprint, author Max Radin attempts to explain to the average layperson what exactly the law is and the reasons behind why it is that way. This book is divided into three parts. The first part is devoted to theory and answering basic questions, the second part traces the evolution of law from the ancient Greeks, and the third part analyzes several legal categories such as obligation, compensation, property and crime.
The Law Relating to Works of Literature and Art
Embracing the Law of Copyright, the Law Relating to Newspapers, Law Relating to Contracts Between Authors, Publishers, Printers, etc., and The Law of Libel
This acid-free reprint from Hein is a great historical resource for your intellectual property collection. The work is intended to provide a compilation of all laws relating to literature and art. It is aimed towards the legal profession and those engaged in literary and artistic pursuits, whether as editors or publishers, with a complete statement of the law bearing on the subjects of their labors.
The Life and Letters of Roscoe Conkling
Orator, Statesman, Advocate
This biography of a great and influential politician is now available newly reprinted from Hein. A New York lawyer and political leader, Roscoe Conkling was a very active politician throughout his life in the nineteenth century. Conkling was a member of the United States House of Representatives and the United States Senate.
Modern Democracies
This new acid-free reprint from Hein is an in-depth comparative study of the great democracies of the nineteenth and early twentieth centuries, and will be an excellent addition to any legal history collection. Author James Bryce analyzes the religion, art, industry, inner working and structure of such governments as the United States, Canada, Switzerland, France and Australia.
A Practical Treatise on the Law of Contracts, Not Under Seal;
and Upon the Usual Defenses to Actions Thereon
4th Edition
The newly reprinted fourth edition of this popular book on the law of contracts contains a much more complete and comprehensive collection of cases and subjects, making it nearly twice the size and twice as useful as all previous versions.
Prize Law During the World War
A Study of the Jurisprudence of the Prize Courts, 1914-1924
This new acid-free reprint from Hein provides a survey of the organization, function and jurisdiction of the prize courts during World War I, which provided the most important contribution of the war to international law. Author James Wilford Garner sets out to summarize and compare the interpretation and conclusions of the prize courts of various nations in which such tribunals were formed and to point out the divergent decisions made in identical or similar circumstances.
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What does "the rule of law" mean in today's multi-cultural society?
In a growing number of cases in state and federal courts all across the country, immigrants are pleading “the cultural defense” – invoking the customs and traditions of their homelands to explain their actions. Even when it is not raised per se, culture plays a role in many cases – both civil and criminal.
In this engaging and highly-interactive presentation, audience members will use hand-held TrialGraphix technology to “vote” on the outcome of vignettes drawn from fascinating and controversial real-life cases “ripped from the headlines” and presented by an inter-disciplinary panel of some of the nation’s leading cross-cultural experts.
Does the adage that “all men are presumed to know the law” apply to recent immigrants? Should immigrants be held to the same standards as everyone else, on the theory of “When in Rome . . . ?”
You be the judge!
* * * * *
Moderator
Professor Jonathan Turley • George Washington University School of Law • Frequent TV Commentator • Contributor, USA Today
Panelists
Professor Alison Dundes Renteln • Professor of Political Science and Anthropology – USC • Lawyer and Author, “The Cultural Defense”
Rene L. Valladares • Chief of the Trial/Appellate Division • Office of the Federal Public Defender – Las Vegas • Editor/Contributor, “Cultural Issues in Criminal Defense”
Mark J. Mills, J.D., M.D. • Forensic Sciences Medical Group – Washington, D.C. • Nationally-renowned forensic psychiatrist
Hon. Bernice B. Donald • U.S. District Court for the Western District of Tennessee • Frequent consultant on international rule of law issues
Program Chair
Hon. Delissa A. Ridgway • U.S. Court of International Trade – New York
* * * * *
Book Signing
Professor Renteln will be signing copies of her award-winning book, The Cultural Defense, following the program. Copies of the book will be available for purchase.
ABA 2008 Midyear Meeting
February 6-12 • Los Angeles www.abanet.org/jd/ncftj
SPONSORED BY: ABA Judicial Division, Nation Conference of Federal Trial Judges and a large, diverse group of Co Sponsors.
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U.S. Supreme Court, January 22, 2008
Ali v. Fed. Bureau of Prisons, No. 06-9130
I"n a case involving the scope of 28 U.S.C. section 2680, which carves out certain exceptions to the United States' waiver of sovereign immunity for torts committed by federal employees, the Court rules that section 2680's broad phrase "any other law enforcement officer" covers all law enforcement officers, and not just law enforcement officers enforcing customs or excise laws." .
U.S. 1st Circuit Court of Appeals, January 23, 2008
Larson v. Howell, No. 07-1925
"An order affirming a bankruptcy court decision which capped the homestead exemption for a debtor is affirmed where a state court finding that a debtor was criminally liable for negligent homicide triggers the federal statutory cap on state homestead exemptions under the Bankruptcy Abuse Prevention and Consumer Protection Act." ..
U.S. 1st Circuit Court of Appeals, January 24, 2008
Foxworth v. Maloney, No. 06-2379
"Order of a new trial after the grant of a petition for a writ of habeas corpus is remanded for the district court to consider petitioner's argument that the evidence used to convict him was insufficient, as the disposition of this argument could obviate the need for a retrial and result in petitioner's unconditional release."
U.S. 1st Circuit Court of Appeals, January 24, 2008
US v. Dickerson, No. 06-2471
"Conviction and life sentence for drug and weapons offenses are affirmed over defendant's arguments that: 1) the specific drug quantities found in the current and previous convictions cannot be utilized for sentencing since the trial judge did not expressly instruct the jury that its findings of drug quantities had to be beyond a reasonable doubt; 2) there was error in the sentencing proceedings concerning defendant's prior convictions because he was not given the chance to challenge the information filed by the government before his sentence was imposed; and 3) the court erred in denying defendant's motion to suppress evidence of over fifty-five grams of cocaine base found in his second car during a warrantless search."
U.S. 2nd Circuit Court of Appeals, January 25, 2008
Diaz v. Kelly, No. 01-2736
"Denial of petitions for writs of habeas corpus are affirmed where although English language deficiency can warrant tolling of the AEDPA limitations period, petitioners have failed to allege circumstances establishing the due diligence required to warrant tolling. However, denial of one petition is reversed where the state court's lack of notification and petitioner's prompt filing after receiving a response to his inquiry to the state court justified tolling."
U.S. 3rd Circuit Court of Appeals, January 23, 2008
"Doe v. Pennsylvania Bd. of Probation & Parole, No. 05-4200
In a 42 U.S.C. section 1983 suit brought by an anonymous plaintiff seeking declaratory and injunctive relief from aspects of Pennsylvania's Registration of Sexual Offenders Act, or Megan's Law, a judgment finding that the treatment of out-of-state offenders under the law violates the Equal Protection Clause is affirmed where: 1) although Pennsylvania's interest in protecting its citizens from sexually violent predators was compelling; nevertheless, 2) subjecting out-of state sex offenders to community notification without providing equivalent procedural safeguards as given to in-state sex offenders was not rationally related to that goal."
U.S. 3rd Circuit Court of Appeals, January 24, 2008
Fahy v. Horn, No. 03-9008, 03-9009
"Grant of a habeas petition vacating petitioner's death sentence is vacated and remanded to the extent that the writ was granted on the basis of Mills v. Maryland, 486 U.S. 367 (1988), where Beard v. Banks, 126 S.Ct. 2572 (2006), held that Mills was not retroactively applicable on collateral review. A denial of habeas relief on guilt phase claims is affirmed over claims of error regarding: 1) a failure to preserve voir dire transcripts; 2) a Batson claim; 3) whether a confession was involuntary and the product of an unconstitutional waiver; 4) ineffective assistance of counsel; 5) prosecutorial misconduct; and 6) cumulative error."
U.S. 4th Circuit Court of Appeals, January 23, 2008
US v. Chandia, No. 06-4997
"Convictions and sentence based on conviction for providing material support to terrorists or terrorist organizations is vacated as to defendant's sentence as the district court failed to make the factual findings necessary to impose the U.S.S.G. section 3A1.4 terrorism enhancement."
U.S. 4th Circuit Court of Appeals, January 25, 2008
US v. McCoy, No. 06-4850
"Grant of a motion to suppress evidence seized after the detention and search of the defendant in a grocery store parking lot is reversed and remanded where the searching officer possessed a reasonable, articulable suspicion that defendant was engaged in serious criminality when the officer stopped and frisked him.".
U.S. 4th Circuit Court of Appeals, January 25, 2008
US v. Mowatt, No. 06-4886
"Conviction for drug and weapons offenses is reversed and remanded where: 1) requiring defendant to open the door to his apartment constituted a warrantless search; 2) no exigent circumstances justified the officers' demand that defendant open his apartment door; and 3) the evidence seized pursuant to the search warrant that the officers eventually obtained was not admissible under the good-faith exception to the exclusionary rule."
U.S. 5th Circuit Court of Appeals, January 22, 2008
US v. Newson, No. 06-41115
"A defendant is not entitled to a decrease under U.S.S.G. section 3E1.1(b) unless the Government files a motion requesting the adjustment. A sentence for possession with intent to distribute marijuana is affirmed over a challenge to the district court's refusal to grant him an additional one-level decrease under U.S.S.G. section 3E1.1(b) after the government failed to move for the reduction based on defendant's refusal to waive his right to appeal."
U.S. 5th Circuit Court of Appeals, January 22, 2008
Mallard v. Cain, No. 07-30021
'Dismissal of a 28 U.S.C. section 2254 petition brought by a petitioner convicted of cocaine possession and sentenced to forty years in prison as a third-time felony offender is affirmed over claims of error regarding: 1) whether a state court's determination that there was a valid waiver of counsel as to one of petitioner's predicate offenses was unreasonable in light of the evidence presented in the state court proceeding, and, if so, whether petitioner was entitled to relief because of the Fifth and Fourteenth Amendment violations; and 2) whether trial counsel's failure to challenge the predicate offenses constituted ineffective assistance of counsel."
U.S. 5th Circuit Court of Appeals, January 23, 2008
Smith v. Quarterman, No. 03-20401
"Denial of a petition for a writ of habeas corpus in a capital murder case is affirmed over claims of error regarding whether: 1) trial counsel provided ineffective representation; and 2) jury instructions given at the sentencing phase of his trial violated his constitutional rights pursuant to Penry v. Johnson, 532 U.S. 782 (2001)."
U.S. 5th Circuit Court of Appeals, January 24, 2008
US v. de Jesus-Ojeda, No. 05-41265
"Defendants' sentences arising from an illegal alien smuggling scheme is affirmed where the evidence was sufficient to support the jury's findings and sentencing enhancements under U.S.S.G. section 2L1.1(b)(5) and (6) were properly applied as, based on the facts of the case, it was foreseeable by participants in the scheme conducted in South Texas in August that others involved in the endeavor would take the aliens on foot through brush and hostile terrain and that death or serious bodily injury might result."
U.S. 6th Circuit Court of Appeals, January 22, 2008
US v. Grenier, No. 06-4473
I"n a criminal case involving alleged securities fraud, dismissal of defendants' indictment on statute of limitations grounds is affirmed where: 1) the mailing and faxing of false statements to the SEC did not constitute two distinct crimes; and 2) for purposes of 18 U.S.C. section 1001, the date defendants' mailed submission was received by the SEC was irrelevant".
U.S. 6th Circuit Court of Appeals, January 22, 2008
Brooks v. Bagley, No. 05-4461
I'n a capital case in which petitioner was convicted of murdering his sons as they lay sleeping, denial of habeas relief is affirmed where state courts' rejection of a claim that trial counsel provided ineffective assistance during the penalty phase of the trial by failing adequately to investigate his mental-health history and background, was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent."..
U.S. 6th Circuit Court of Appeals, January 23, 2008
US v. Conway, No. 06-4083
"A sentence pursuant to a plea to possession of ammunition is affirmed over challenges to the district court's possession-of-a-shotgun enhancement arguing that: 1) he did not possess the shotgun; 2) the "relevant conduct" provisions of the sentencing guidelines do not apply to this conduct; 3) the sentencing guidelines preclude courts from enhancing sentences based on charged conduct where the government later dismisses the charge in connection with a plea agreement; 4) the plea agreement in this case barred the enhancement; and 5) the Sixth Amendment barred the enhancement."
U.S. 6th Circuit Court of Appeals, January 24, 2008
US v. Vicol, No. 06-2605
"A sentence for kidnapping is vacated and remanded pursuant to the government's challenge where: 1) the district court abused its discretion in improperly calculating the correct guidelines sentence range as required under 18 U.S.C. section 3553(a); and 2) the miscalculation was not harmless as it affected the district court's decision in sentencing defendant.'
U.S. 6th Circuit Court of Appeals, January 24, 2008
US v. Coker, No. 06-6504
"A sentence for committing an illegal conflict of interest is affirmed as defendant's various arguments were either waived, withdrawn, or meritless."..
U.S. 6th Circuit Court of Appeals, January 25, 2008
Ross v. Petro, No. 05-4212, 05-4213
"Grant of habeas relief from a court of appeals' ruling reversing a grant of petitioner's motion following a mistrial to bar reprosecution on double jeopardy grounds is reversed where the district court failed to abide by the deferential standard of review made applicable by the Anti-Terrorism and Effective Death Penalty Act (AEDPA)."
U.S. 6th Circuit Court of Appeals, January 25, 2008
Fautenberry v. Mitchell, No. 05-3568
"Denial of a petition for writ of habeas corpus brought by a state prisoner awaiting execution is affirmed over meritless claims of error regarding: 1) ineffective assistance of counsel claims; 2) trial counsel's alleged conflict of interest; 3) a Brady violation; 4) waiver of the right to jury trial during the penalty phase; 5) the knowing and voluntary nature of a no-contest plea; and 6) admission of victim impact evidence."
U.S. 6th Circuit Court of Appeals, January 25, 2008
US v. Madden, No. 05-4304, 06-3736
"Defendants' convictions and sentences for, inter alia, drug-related offenses are affirmed over claims that: 1) the court did not have jurisdiction to sanction one defendant for his prior supervised-release violation; and 2) other defendant's sentence was error as the district court failed to adequately consider her request for a reduced sentence."
U.S. 7th Circuit Court of Appeals, January 22, 2008
US v. Moses, No. 07-1123
Conviction on multiple counts of possession of an unregistered destructive device is affirmed over defendant's claims that: 1) the multiple counts violated his Fifth Amendment right against double jeopardy by allowing for more than one prosecution for the simultaneous possession of the devices; and 2) the government failed to prove at trial that he possessed the devices.".
U.S. 7th Circuit Court of Appeals, January 23, 2008
Evans v. City of Chicago, No. 06-3401
I"n a suit under 42 U.S.C. section 1983 alleging that defendants conspired to falsely convict plaintiff of crimes, judgment for defendants is affirmed where the district judge: 1) did not abuse his discretion in deciding to submit an officer's assertion of his Fifth Amendment rights to the jury in the form of an instruction; 2) did not improperly reject plaintiff's proposed jury instructions, verdict form, and special interrogatory; and 3) did not err in in allowing officers asserting their rights under the Fifth Amendment to withdraw their privilege and testify while simultaneously excluding evidence of their previous silence if they were deposed prior to trial."
U.S. 7th Circuit Court of Appeals, January 23, 2008
US v. Hernandez-Rivas, No. 06-2647
"Conviction for illegal reentry and human-trafficking offenses is affirmed over defendant's arguments that: 1) the district court erred in finding that a police officer had reasonable suspicion and probable cause to stop the plaintiff's van; and 2) the district court abused its discretion when it refused to accept plaintiff's attempts to plead guilty."
U.S. 7th Circuit Court of Appeals, January 24, 2008
Zamora-Mallari v. Mukasey, No. 06-3717
"Petitions for review of the denial of waivers of removability under section 212(c) of the Immigration and Nationality Act are denied where: 1) aliens charged with removability for an aggravated felony involving sexual abuse of a minor do not qualify for a section 212(c) waiver under the comparable grounds test; 2) because there is no comparable ground for inadmissibility, petitioners are not similarly situated to those found inadmissible under section 212(a) and therefore there was no equal protection violation; 3) the law of the case doctrine did not apply to one petitioner's case because the BIA never reached the merits of his section 212(c) petition; and 4) the court lacks jurisdiction to review the petitioners' challenges to the BIA's denials of their subsequent motions."..
U.S. 7th Circuit Court of Appeals, January 25, 2008
US v. Chavers, No. 06-4303
"Denial of a motion to withdraw a guilty plea for knowingly attempting to bring a loaded semiautomatic pistol on an airplane is affirmed over defendant's arguments that: 1) he did not know the gun was loaded when he gave it to airport personnel, thus undermining the factual basis of his guilty plea; and 2) the district court applied the wrong legal standard in evaluating the motion."
U.S. 8th Circuit Court of Appeals, January 22, 2008
Roe v. Crawford, No. 06-3108
"An elective, non-therapeutic abortion does not constitute a serious medical need, and a prison institution's refusal to provide an inmate with access to an elective, non-therapeutic abortion does not rise to the level of deliberate indifference to constitute an Eighth Amendment violation. However, under the test established by Turner v. Safley, 482 U.S. 78 (1987), the Missouri Department of Corrections' policy of prohibiting transportation for elective, non-therapeutic abortions is unreasonable under the Fourteenth Amendment."
U.S. 8th Circuit Court of Appeals, January 23, 2008
US v. Reddest, No. 06-4034
"Defendant's convictions for sexual abuse are affirmed in part, but reversed as to one count where no reasonable jury could find defendant guilty beyond a reasonable doubt based on the ambiguous and nonspecific evidence produced by the government."
U.S. 8th Circuit Court of Appeals, January 24, 2008
US v. Gill, No. 06-3212
"Defendants' convictions for drug- and firearm-related offenses are affirmed over claims of error regarding whether the district court erred in: 1) denying a motion to suppress and in declining to reopen the suppression hearing record to allow admission of polygraph evidence; 2) allowing certain trial testimony by a DEA agent; 2) declining to include a request jury instruction; 3) instructing the jury as to the elements of a firearm offense; and whether 4) sufficient evidence supported one defendant's 18 U.S.C. section 924(c) conviction.".
U.S. 8th Circuit Court of Appeals, January 25, 2008
US v. M.R.M., No. 06-3832
"An order committing defendant to official detention until the age of twenty-one, issued after defendant was adjudicated a juvenile delinquent for committing an assault with a dangerous weapon in Indian Country, is affirmed where, given the broad discretion afforded the district courts in the disposition of juvenile adjudications and the plain error standard applicable to certain of defendant's objections, the period of official detention ordered in this case was not contrary to law or plainly unreasonable."..
U.S. 9th Circuit Court of Appeals, January 22, 2008
Perez v. Mukasey, No. 06-73523
"Petition for review of a removal order based on a conviction for misdemeanor assault is granted where: 1) fourth degree assault under Washington law is not categorically a "crime of violence"; and 2) the modified categorical approach did not establish that petitioner's conviction was based on a 'crime of violence' ."
U.S. 9th Circuit Court of Appeals, January 22, 2008
Greene v. Solano County Jail, No. 06-16957
"In an action brought by a former maximum security prisoner claiming that a jail's policy of prohibiting maximum security prisoners from participating in group worship was a violation of his rights under, inter alia, the Religious Land Use and Institutionalized Persons Act (RLUIPA), summary judgment for defendant on the RLUIPA claim is reversed as there was a genuine issue of material fact as to whether a total ban on group religious worship by maximum security prisoners at a jail was the least restrictive means of maintaining jail security. Summary judgment for defendant on other claims is vacated as defendant did not meet her burden on summary judgment as to those claims, and plaintiff was not given notice and an opportunity to oppose summary judgment as to those claims.".
U.S. 9th Circuit Court of Appeals, January 22, 2008
Price v. Sery, No. 06-35159
I"n a 42 U.S.C. section 1983 action alleging, inter alia, that police officers unconstitutionally used deadly force for which defendant-City was liable, summary judgment for the city on the Monell claims is affirmed in part and reversed in part where: 1) the city's official policy concerning the use of deadly force, as written, does not violate the requirements of the Constitution; 2) plaintiff failed to make a sufficient showing of a failure to train on the part of the city to survive summary judgment; but 3) a genuine issue of material fact existed as to whether a "longstanding" practice or custom of the city might in fact have deprived decedent of his constitutional rights.".
U.S. 9th Circuit Court of Appeals, January 22, 2008
"US v. Approximately $1.67 Million (US) in Cash, No. 05-16614
In an appeal brought by a twice-convicted drug smuggler and trafficker who had on deposit in certain Cayman Island bank accounts $1.67 million in alleged drug trafficking proceeds, summary judgment for the government in its forfeiture action for the funds is affirmed where: 1) the district court properly exercised jurisdiction over the funds; 2) claimant failed to adduce a genuine issue of material fact that the funds derived from legitimate sources; and 3) a five-year delay between the government's seizure of the funds and the filing of this action did not violate claimant's due process rights."
U.S. 9th Circuit Court of Appeals, January 23, 2008
Shakur v. Schriro, No. 05-16705
I"n an action alleging prison officials violated the Religious Land Use and Institutionalized Persons Act, the Free Exercise Clause, and the Equal Protection Clause by denying a Muslim inmate’s request for a religious dietary accommodation, summary judgment for defendants is reversed and remanded where: 1) for purposes of a free exercise claim, the district court made insufficient findings with respect to certain factors of the Turner analysis; 2) on the RLUIPA claim, summary judgment was inappropriate as there was a factual dispute as to the extent of the burden on plaintiff's religious activities, the extent of the burden that would be created by accommodating his request, and the existence of less restrictive alternatives; and 3) the district court applied the wrong standard of review on an Equal Protection claim, and the identified penalogical interest was insufficient for summary judgment.".
U.S. 9th Circuit Court of Appeals, January 23, 2008
Estrada v. Scribner, No. 06-55013
"Denial of a habeas petition for a new trial after petitioner's conviction in California state court for, inter alia, second-degree murder is affirmed over claims that his rights to due process and a fair and impartial jury were violated because juror misconduct resulted in the consideration of impermissible extraneous information by the jury, and because two jurors were impermissibly biased."
U.S. 9th Circuit Court of Appeals, January 23, 2008
Vizcarra-Ayala v. Mukasey, No. 06-73237
"California Penal Code section 475(c) encompasses conduct involving real, unaltered documents and thus is not categorically an offense "relating to ... forgery" under INA section 101(a)(43)(R)."
U.S. 9th Circuit Court of Appeals, January 23, 2008
Jackson v. Brown, No. 04-99006, 04-99007
"Denial of habeas relief for petitioner as to his convictions for burglary and murder, and a grant of conditional relief as to special circumstances findings and his death sentence are affirmed on appeal and cross-appeal over the state's claims that: 1) findings of prosecutorial error relied on "new rules" of criminal procedure and hence were barred by Teague; 2) even if not Teague-barred, undisclosed offers and promises were immaterial and any prosecutorial error was harmless; 3) a claim regarding the undisclosed psychiatric reports was procedurally defaulted and the failure to disclose did not constitute reversible error. The court also rejects petitioner's claims regarding: 1) racially derogatory remarks by defense counsel during trial; 2) whether he was forced by counsel to wear jail clothing as opposed to civilian apparel; 3) erroneous admission of evidence; and 4) cumulative error.".
U.S. 9th Circuit Court of Appeals, January 24, 2008
US v. Comprehensive Drug Testing, Inc., No. 05-10067
"The United States may retain certain evidence it seized from Major League Baseball's drug testing administrator, and enforce an additional subpoena, as part of an ongoing grand jury investigation into illegal steroid use by professional athletes. (Superseding opinion) "
U.S. 9th Circuit Court of Appeals, January 25, 2008
US v. Cherer, No. 06-10642
"A conviction and sentence for attempting to persuade, entice, or coerce a minor to engage in sexual acts with him is affirmed over claims that: 1) the district court committed prejudicial error by improperly instructing the jury; 2) the district court improperly admitted evidence of his past conviction and other prior bad acts under Federal Rule of Evidence 404(b); and 3) the sentence of 293-months was unreasonably long."
U.S. 9th Circuit Court of Appeals, January 25, 2008
US v. Carr, No. 07-30133
"A conviction for being a felon in possession of a firearm is affirmed where the statutory structure under which he was convicted required that his predicate Washington conviction for violating a protection order be treated as a felony, as opposed to a gross misdemeanor."..
U.S. 10th Circuit Court of Appeals, January 23, 2008
Clark v. Edmunds, No. 07-4029
I"n a 42 U.S.C. section 1983 action alleging that defendant-sheriff used excessive and unreasonable force against her in the course of taking her adult daughter into protective custody, summary judgment for defendants is affirmed where: 1) no Fourth Amendment seizure of plaintiff occurred; 2) for purposes of a substantive due process claim, plaintiff could not establish that the sheriff's conduct shocked the conscience; 3) thus, plaintiff could not show the violation of a constitutional right and sheriff was entitled to qualified immunity; and 4) the district court correctly dismissed other claims."
U.S. 10th Circuit Court of Appeals, January 23, 2008
Jenkins v. Currier, No. 07-6113
I"n a state prisoner's 42 U.S.C. section 1983 action alleging state officials violated his constitutional rights and state law when they took him into custody without a warrant or a probable cause hearing and transferred him to a correctional facility in order for him to serve his previously imposed sentences, summary judgment for defendants is affirmed where: 1) his erroneous release from federal custody onto the street did not destroy Oklahoma's claim to legal custody over him, as he was subject to an unfinished sentence; and 2) state authorities had sufficient basis for his seizure and no warrant was necessary to take him into physical custody.".
U.S. 10th Circuit Court of Appeals, January 24, 2008
US v. Mendez, No. 06-3282
"Following a conviction for unlawful firearm and ammunition possession, and maintaining a residence for the purpose of storing, distributing and using controlled substances, denial of defendant's motion for a new trial and partial denial of his motion for judgment of acquittal are affirmed over claims of error regarding: 1) the sufficiency of the evidence; 2) the introduction of three pieces of evidence, which were allegedly inadmissible hearsay and their introduction violated defendant's confrontation rights; and 3) an alleged Brady violation.".
U.S. 11th Circuit Court of Appeals, January 22, 2008
Flint v. Jordan, No. 06-11867
"Denial of motion under 28 U.S.C. section 2255 is affirmed where there is no Supreme Court decision mandating that petitioner's 1986 state court conviction resulting in a probationary sentence should not have been considered in calculating the criminal history score used to sentence petitioner for his federal crimes."
U.S. 11th Circuit Court of Appeals, January 22, 2008
US v. Masferrer, No. 06-14223
"Conviction and sentence for numerous counts relating to bank and securities fraud are affirmed over defendant's claims of error regarding: 1) the improper assignment of his case to a particular judge, and whether he was therefore entitled to a new trial before a randomly selected judge; 2) several evidentiary rulings; and 3) his thirty-year sentence.".
U.S. D.C. Circuit Court of Appeals, January 25, 2008
US v. Hughes, No. 06-3180
"Denial of a 28 U.S.C. section 2255 petition is affirmed where defendant procedurally defaulted on his claim of judicial bias and was not prejudiced by the alleged ineffective assistance of his defense counsel."
Supreme Court of California, January 24, 2008
Ross v. Ragingwire Telecomm., Inc., No. S138130
"In an action brought by a medical marijuana user against his employer for disability-based discrimination under the California Fair Employment and Housing Act (FEHA) and for wrongful termination in violation of public policy, a judgment against plaintiff is affirmed as: 1) nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees; and 2) under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions."
Supreme Court of Florida, January 24, 2008
Schwab v. State of Florida, No. SC07-2138
"An order denying a second successive motion for post-conviction relief brought by a prisoner under sentence of death is affirmed over claims of error that: 1) newly discovered evidence of a doctor's clarification of his original testimony made defendant's death sentence fundamentally unreliable; and 2) newly discovered evidence of the Florida Department of Corrections training logs and the Florida Department of Law Enforcement (FDLE) mock execution training notes clearly revealed that Florida's lethal injection method violated the Eighth Amendment."
Supreme Court of Florida, January 24, 2008
Johnson v. State of Florida, No. SC07-668
"A petition for a writ of mandamus seeking relief from an allegedly illegal sentence is dismissed as unauthorized where petitioner was represented by court-appointed counsel in a pending appeal involving the same conviction and sentence. The rule announced in Logan v. State, 846 So. 2d 472 (Fla. 2003), applies to pro se filings in the Supreme Court of Florida by litigants represented by counsel in criminal proceedings pending in a district court of appeal."
Supreme Court of Florida, January 24, 2008
Luton v. State of Florida, No. SC06-1800
"The review proceeding at issue is dismissed as jurisdiction was improvidently granted.".
Supreme Court of Florida, January 24, 2008
James v. State of Florida, No. SC06-426
"An order denying a motion for reappointment of Capital Collateral Regional Counsel (CCRC) and reinstatement of a motion to vacate a sentence of death is affirmed where the trial court properly denied reappointment of collateral counsel for petitioner to resume postconviction proceedings after he had discharged collateral counsel and dismissed postconviction proceedings more than two and a half years prior to his motion."
Illinois Supreme Court, January 25, 2008
People v. Deleon, No. 103777
"Conviction and sentence for first degree murder and attempted first degree murder are affirmed over claims that: 1) defendant's attorney at resentencing had been ineffective; and 2) the motorist the defendant attempted to murder had not received severe bodily injury for purposes of consecutive sentencing."
Illinois Supreme Court, January 25, 2008
People v. Mohr, No. 103751
"In a conviction for second degree murder where the state conceded provocation as a mitigating factor and the judge gave an instruction on provocation, reversal of the conviction is affirmed where the State still had to prove the elements of first degree murder and no instruction on the mitigating factor of provocation should have been given."
Illinois Supreme Court, January 25, 2008
In re Lakisha M., No. 103541
"In an adjudication of delinquency based on the felony offense of aggravated battery, application of the Illinois DNA indexing statute to require the minor to submit a DNA sample is affirmed where Juvenile Court Act's provisions making juvenile proceedings confidential do not call for a different result."
Illinois Supreme Court, January 25, 2008
State of Illinois v. Delton, No. 103420
I"n a conviction for two counts of aggravated battery of a police officer, summary dismissal of defendant's pro se postconviction petition is affirmed where there was no factual support for the petition's allegations that counsel knew before trial of defendant's allegations that he had been harassed or had filed complaints."
California Appellate Districts, January 22, 2008
People v. Gill, No. C051108
"Conviction and sentence for spousal rape and related charges are affirmed over defendant's claims of error regarding: 1) denial of his motion to disqualify the district attorney's office; 2) admission of statements he made to police; 3) admission of evidence of prior acts of domestic abuse against his wife; 4) rejection of a claim of prosecutorial misconduct; 5) a sentence to the upper term for forcible oral copulation; and 6) the sufficiency of the evidence supporting his conviction for residential burglary."
California Appellate Districts, January 22, 2008
People v. Williams, No. A116295
"Conviction for various assaults on a 71-year-old man is affirmed over challenge to the constitutionality of Evidence Code section 1109(a)(2), which authorizes the admission of evidence of prior bad acts, such as the evidence admitted that defendant had committed two previous attacks on older men."
California Appellate Districts, January 22, 2008
People v. Garcia, No. B193077
"Conviction and sentence for animal cruelty and exhibiting a deadly weapon other than a firearm are affirmed over defendant's claims that: 1) the trial court violated due process by allowing him to represent himself while he was mentally incompetent; 2) the court did not conduct a full evidentiary hearing on the question of mental competence; 3) appointed counsel rendered ineffective assistance when he did not insist on a full evidentiary hearing; and 4) imposition of the upper term sentence for animal cruelty violated defendant's right to a jury trial."
California Appellate Districts, January 22, 2008
People v. Morton, No. G036413
S"entence based on conviction for domestic battery with corporal injury and misdemeanor assault is reaffirmed over claim that the court erred by following People v. Black (2005) 35 Cal.4th 1238 in its application of California's determinate sentencing law. (Opinion following transfer from Supreme Court.)".
California Appellate Districts, January 23, 2008
People v. Reyes, No. B196415
"Convictions and sentences for murder and related charges are affirmed over primary claim that admission of one defendant's statement to police at the joint trial of both defendants, where the defendant making the statement did not testify, violated Bruton v. United States, 391 U.S. 123 (1968) and People v. Aranda, 63 Cal.2d 518 (1965).".
California Appellate Districts, January 23, 2008
People v. Davidson, No. B197896
"Order reinstating dismissed judgment convicting defendant of attempted murder, issued after victim died and defendant was convicted of his murder, is affirmed over claim that the attempted murder judgment must be reversed as the trial court lacked authority to reinstate a previously dismissed judgment, and, by doing so, subjected defendant to double jeopardy."
California Appellate Districts, January 24, 2008
"CashCall, Inc. v. Superior Ct. of San Diego County, No. D051293
In the class action context, there is no bright-line rule that the original class representative plaintiffs must be members of the class to have standing to obtain precertification discovery. In the circumstances of this action against a lender alleging violation of plaintiffs' privacy rights, the trial court did not err by applying a balancing test and ordering precertification discovery for the purpose of identifying class members who may become substitute plaintiffs in place of named plaintiffs who were not members of the class they purported to represent."
California Appellate Districts, January 24, 2008
People v. Stuart, No. C054017
"A sentence for forcible rape and making criminal threats is affirmed over a claim that the trial court's imposition of the upper term for the rape based on its finding of certain aggravating factors violated his constitutional right to have the aggravating factors determined by a jury beyond a reasonable doubt as required by Supreme Court precedent."
California Appellate Districts, January 24, 2008
"People v. Superior Ct. of San Diego County, No. D051355
Dismissal of a petition to commit real party as a sexually violent predator (SVP) under the Sexually Violent Predators Act is affirmed where: 1) real party was in unlawful custody; 2) the government failed to show that its delay in filing the petition resulted from a good faith mistake of fact or law; and 3) Code of Civil Procedure section 12a did not extend the time to file the petition."
California Appellate Districts, January 24, 2008
"In re Silvia R., No. B197381
When a child is removed from a parent's home, Welfare and Institutions Code section 362(c), does not authorize a juvenile court to order other relatives with whom the child is not placed to participate in counseling or education programs. Rather, section 361(c) authorizes the court to impose on the parent, as a condition of the disposition plan for reunification with the child, that the parent demonstrate to the court's satisfaction that the parent can protect the child. Further, when the child has been the victim of sexual abuse by other relatives, the court has the authority to order that the parent must reside separately from the perpetrators, or must demonstrate that the perpetrators voluntarily participated in counseling and satisfactorily addressed the issues involved, such that the child may safely reside with them.".
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U.S. 1st Circuit Court of Appeals, January 22, 2008
"Chmielinski v. Commonwealth of Massachusetts, No. 07-1652
In a suit alleging that termination proceedings for a probation officer violated his procedural due process rights, dismissal for failure to state a claim is affirmed where: 1) the initial hearing granted to the plaintiff did not deviate from state law; and 2) the hearing did not violate due process".
U.S. 3rd Circuit Court of Appeals, January 23, 2008
"Doe v. Pennsylvania Bd. of Probation & Parole, No. 05-4200
In a 42 U.S.C. section 1983 suit brought by an anonymous plaintiff seeking declaratory and injunctive relief from aspects of Pennsylvania's Registration of Sexual Offenders Act, or Megan's Law, a judgment finding that the treatment of out-of-state offenders under the law violates the Equal Protection Clause is affirmed where: 1) although Pennsylvania's interest in protecting its citizens from sexually violent predators was compelling; nevertheless, 2) subjecting out-of state sex offenders to community notification without providing equivalent procedural safeguards as given to in-state sex offenders was not rationally related to that goal."
U.S. 8th Circuit Court of Appeals, January 22, 2008
Roe v. Crawford, No. 06-3108
"An elective, non-therapeutic abortion does not constitute a serious medical need, and a prison institution's refusal to provide an inmate with access to an elective, non-therapeutic abortion does not rise to the level of deliberate indifference to constitute an Eighth Amendment violation. However, under the test established by Turner v. Safley, 482 U.S. 78 (1987), the Missouri Department of Corrections' policy of prohibiting transportation for elective, non-therapeutic abortions is unreasonable under the Fourteenth Amendment."
U.S. 9th Circuit Court of Appeals, January 22, 2008
Greene v. Solano County Jail, No. 06-16957
"In an action brought by a former maximum security prisoner claiming that a jail's policy of prohibiting maximum security prisoners from participating in group worship was a violation of his rights under, inter alia, the Religious Land Use and Institutionalized Persons Act (RLUIPA), summary judgment for defendant on the RLUIPA claim is reversed as there was a genuine issue of material fact as to whether a total ban on group religious worship by maximum security prisoners at a jail was the least restrictive means of maintaining jail security. Summary judgment for defendant on other claims is vacated as defendant did not meet her burden on summary judgment as to those claims, and plaintiff was not given notice and an opportunity to oppose summary judgment as to those claims."
U.S. 9th Circuit Court of Appeals, January 22, 2008
Price v. Sery, No. 06-35159
"In a 42 U.S.C. section 1983 action alleging, inter alia, that police officers unconstitutionally used deadly force for which defendant-City was liable, summary judgment for the city on the Monell claims is affirmed in part and reversed in part where: 1) the city's official policy concerning the use of deadly force, as written, does not violate the requirements of the Constitution; 2) plaintiff failed to make a sufficient showing of a failure to train on the part of the city to survive summary judgment; but 3) a genuine issue of material fact existed as to whether a "longstanding" practice or custom of the city might in fact have deprived decedent of his constitutional rights."
U.S. 9th Circuit Court of Appeals, January 23, 2008
Shakur v. Schriro, No. 05-16705
"In an action alleging prison officials violated the Religious Land Use and Institutionalized Persons Act, the Free Exercise Clause, and the Equal Protection Clause by denying a Muslim inmate’s request for a religious dietary accommodation, summary judgment for defendants is reversed and remanded where: 1) for purposes of a free exercise claim, the district court made insufficient findings with respect to certain factors of the Turner analysis; 2) on the RLUIPA claim, summary judgment was inappropriate as there was a factual dispute as to the extent of the burden on plaintiff's religious activities, the extent of the burden that would be created by accommodating his request, and the existence of less restrictive alternatives; and 3) the district court applied the wrong standard of review on an Equal Protection claim, and the identified penalogical interest was insufficient for summary judgment."
U.S. 10th Circuit Court of Appeals, January 23, 2008
Clark v. Edmunds, No. 07-4029
"In a 42 U.S.C. section 1983 action alleging that defendant-sheriff used excessive and unreasonable force against her in the course of taking her adult daughter into protective custody, summary judgment for defendants is affirmed where: 1) no Fourth Amendment seizure of plaintiff occurred; 2) for purposes of a substantive due process claim, plaintiff could not establish that the sheriff's conduct shocked the conscience; 3) thus, plaintiff could not show the violation of a constitutional right and sheriff was entitled to qualified immunity; and 4) the district court correctly dismissed other claims.".
U.S. 10th Circuit Court of Appeals, January 23, 2008
Jenkins v. Currier, No. 07-6113
"In a state prisoner's 42 U.S.C. section 1983 action alleging state officials violated his constitutional rights and state law when they took him into custody without a warrant or a probable cause hearing and transferred him to a correctional facility in order for him to serve his previously imposed sentences, summary judgment for defendants is affirmed where: 1) his erroneous release from federal custody onto the street did not destroy Oklahoma's claim to legal custody over him, as he was subject to an unfinished sentence; and 2) state authorities had sufficient basis for his seizure and no warrant was necessary to take him into physical custody."
Illinois Supreme Court, January 25, 2008
"The Vill. of Mundelein, v. Wisconsin Cent. R.R., No. 103543
In the matter of a Wisconsin Central Railroad train that blocked a railroad crossing in the Village of Mundelein for over two and a half hours, finding of an ordinance violation and imposition of a $14,000 fine are reversed where the ordinance is preempted by federal railroad law."
Illinois Supreme Court, January 25, 2008
"Eagle Marine Indus. Inc. v. Union Pacific R.R. Co., No. 102462
Injunction prohibiting defendant railroad from blocking a certain railroad crossing for more than 10 minutes should not have been issued and the matter is remanded with direction to dissolve the injunction where the ordinance relied upon to issue the injunction violates the commerce clause, is preempted by federal railroad law, and is unenforceable."
California Appellate Districts, January 24, 2008
"County of L.A. v. Superior Ct. of L.A. County, No. B198118
In class action complaints against the County of Los Angeles alleging that the county imposed new utility user taxes without prior approval by the voters as required by law, and also raising a related equal protection claim, county's petition for a writ of mandate challenging certification of a class in the matter is denied as: 1) the rule from City of San Jose v. Superior Court, 12 Cal.3d 447 (1974), governs tax refund claims under Government Code section 910 absent a specific tax refund statute; 2) class claims are permissible under section 910; and 3) the county's claims ordinance is inapplicable. The court rejects the language in other Court of Appeal opinions stating that class action claims are not allowed in any tax refund litigation."
The January 25, 2008 issue of the AALL Washington E-bulletin is now available at http://www.aallnet.org/aallwash/eBulletin12508.pdf. Reading issues of this E-bulletin is a great way to keep abreast of issues of interest and concern to law librarians that are being discussed and debated in Washington, DC. Enjoy
To see the New York Supreme Court Appellate Division First Department decisions (including index) released on January 24, 2008, click on the links below
Index to January 24, 2008 Slip Opinions
Decisions Announced on January 24, 2008
Jean Boudreaux et. al. v. State of Louisiana et. al.
Norma White v. Carlos Diaz et.al. Manuel A. Numez et. al.
Since issues related to stimulating the U.S. economy and the more general economic outlook are being so widely discussed in the news media, we thought it would be helpful to add context to the general discussion by posting a few federal documents which provide an added dimension to the topic.
The list of materials below is not meant to be comprehensive; most have been generated in the past few days by those involved directly in developing the proposed stimulus package. In addition, we have added two documents which discuss the general outlook of the economy.
Here is the list with brief descriptions. To gain access to these materials click on the links provided:
Fact Sheet: CBO Budget Outlook, Fy 2008-2018
State-by-State Economic Snapshots: Reports Prepared by the Joint Economic Committee
Subprime Crisis Timetable: Prepared by Joint Economic Committee - December 2007 - August 2007
Expanded Summary of the 2008 Economic Growth Package From House Minority Leader John Boehner
Expanded Summary of the 2008 Economic Growth Package From Speaker Nancy Pelosi
Summary of the Economic Stimulus Agreement From the White House
01/23/2008 Executive Order: Further Amendment of Executive Order 11858 Concerning Foreign Investment in the United States (PDF 70.7 KB)
Executive Order Issued by the President on Jan. 23, 2008
To See Executive Order 11858 Click Here
New on LLRX.com for January 2008, www.llrx.com
From Sabrina I. Pacifaci, Founder, Editor, Publisher LLRX.com
**Many thanks to all the authors whose work appears in this month's issue.
**If you are interested in contributing a feature article, a column, a guide or a presentation to LLRX.com, please contact me -- spacific at earthlink dot net. Upcoming deadlines are February 15 and March 14, 2008. Thank you very much.
----------------------------------------------------------------------------------
**Reviewing the XO “$100” Laptop, by Conrad J. Jacoby
http://www.llrx.com/features/xolaptop.htm
**Social Networks for Law Librarians and Law Libraries, or How We Stopped Worrying and Learned to Love Friending, by Debbie Ginsberg and Meg Kribble
http://www.llrx.com/features/socialnetworks.htm
**FOIA Facts: The Impact of the OPEN Government Act of 2007, by Scott A. Hodes
http://www.llrx.com/columns/foia47.htm
**Criminal Resources: Criminal Defense Investigation, by Ken Strutin
http://www.llrx.com/features/criminaldefense.htm
**Bella is Bewildered About Blogs, by Beverly Butula
http://www.llrx.com/features/bellablogs.htm
**Reference from Coast to Coast: Learning to Love Those 50 State Surveys, by Jan Bissett and Margi Heinen
http://www.llrx.com/columns/reference56.htm
**The Government Domain: Regulations.gov 2.0, by Peggy Garvin
http://www.llrx.com/columns/govdomain32.htm
**What's in the Air at MacWorld? by Nicholas Moline
http://www.llrx.com/features/macworld.htm
**LLRX Book Review by Heather A. Phillips - John Marshall and the Heroic Age of the Supreme Court
http://www.llrx.com/columns/bookreview7.htm
**Burney's Legal Tech Reviews - The Better Digital Mouse Trap, an All Purpose Travel Bag, and a Shiny Cell Phone, by Brett Burney
http://www.llrx.com/columns/legaltech54.htm
**CongressLine: SPQR, by Paul Jenks
http://www.llrx.com/congress/spqr.htm
**Commentary: The Supplemental Mine Improvement and New Emergency Response Act, by Beth Wellington
http://www.llrx.com/extras/mineimprovement.htm
**LLRX Court Rules, Forms and Dockets, continually updated by law librarian Margaret Berkland
http://www.llrx.com/courtrules