From Findlaw, March 28, 2008.
"David Hricik & Chase Edward Scott) - Metadata is not new, but it has become pervasive in the digital world in which lawyers (and their clients) live. Many programs commonly used in the office create data about data and then save that unseen information along with the visible text of the document in a single file"
To see the complete article click here
Legislative Text of the New York City Congestion Pricing Proposal
Text as Introduced in the New York State Senate by the Rules Committee on March 24, 2008
Proposed Amendment to Vehicle and Traffic Law (VTL) Regarding Congested Pricing in New York City
"The core idea here is that developers will create more applications for social networks if there is a fair amount of interoperability between the platforms. Of course, Facebook, and by extension Microsoft, don't seem to want to endorse this concept. But Microsoft did come out strongly in favor of making data more portable between social network sites on a limited basis. What all this means is that new battle lines are being drawn between Google and Microsoft unless, of course, peace unexpectedly breaks out as some still hope. Either way, it won't be too long before the Generation Y folks that make heavy use of these services start to make their presence felt on traditional IT."
See March 25, 2008 article by Clint Boulton here.
From: Findlaw Opinion Summaries March 27, 2008.
ADMIRALTY, INJURY AND TORT LAW, TRANSPORTATION
In Re City of New York, No. 07-1251
"In a tort action arising out of a ferry crash into a maintenance pier, a bench trial judgment which found the city negligent and denied limitations of liability is affirmed where the city did not act with reasonable care when it allowed a single pilot to operate the Staten Island Ferry without at least one other person in or near the pilothouse, aware of the navigational circumstances, and ready to render or summon assistance in the event of an emergency."
CIVIL PROCEDURE, COPYRIGHT, ENTERTAINMENT LAW, INSURANCE LAW,
INTELLECTUAL PROPERTY
Employers Ins. Of Wausau v. Fox Entm't Group, Inc., No. 06-4652
"In an action by insurers seeking declaratory judgment that they had no coverage obligations relating to an underlying copyright infringment suit, the "special circumstances" exception to the first-filed rule does not apply to a declaratory judgment filed in the absence of a direct threat of litigation in a forum with at least some ties to the litigation."
Employers Insurance of Wausau v. Fox Enertainment Group
CIVIL PROCEDURE, PROPERTY LAW & REAL ESTATE
Boykin v. KeyCorp, No. 05-2158
"In an action arising from claims under the Fair Housing Act, dismissal of all of plaintiff's claims is vacated and remanded where: 1) district court erred in dismissing plaintiff's claims as untimely as it considered plaintiff's administrative proceeding no longer "pending", and the two-year filing period no longer tolled, as of the date of a case-closed letter from the N.Y. Division of Human Rights, rather than the final letter from the U.S. Department of Housing and Urban Development notifying her that investigation of her complaint was complete; and 2) plaintiff's disparate treatment claim satisfied the pleading standard of Fed. Rules of Civ. Proc. 8(a)."
CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, IMMIGRATION LAW
Arriaga v. Mukasey , No. 07-1148
"Petition for review of BIA's final order of removal on the basis of petitioner's conviction for the offense of stalking is denied where the stalking provision of the removal statute is not unconstitutionally vague on its face or as applied to the petitioner."
IMMIGRATION LAW
Poole v. Mukasey , No. 06-4069
"A petition for review of BIA's dismissal of an untimely appeal from an order of removal is dismissed in part and remanded in part where: 1) court lacks jurisdiction to consider all of petitioner's claims except his claim for derivative citizenship; and 2) petitioner appears to have met the requirements for derivative citizenship as provided in the section 321 of the INA in 1984 (the law in effect when petitioner fulfilled the last requirement for derivative citizenship) to warrant reconsideration.".
IMMIGRATION LAW, PER CURIAM
Jiang v. Mukasey , No. 06-5213
"Petition for review of a BIA decision denying petitioner's motion to reopen based on ineffective assistance of counsel is denied where petitioner's decision to withdraw his application for asylum and withholding of removal and to accept a grant of voluntary departure was a reasonable strategic decision which undermines claims of counsel's ineffective assistance."
From: Findlaw Opinion Summaries March 26, 2008.
AEROSPACE & DEFENSE, CIVIL PROCEDURE, GOVERNMENT CONTRACTS, INJURY AND TORT LAW, MILITARY LAW, PRODUCT LIABILITY
I"n re 'Agent Orange' Prod. Liab. Litig., No. 05-1760
"In a products liability action arising from the alleged injuries, mostly forms of cancer, caused by veterans' exposure to the chemical defoliant "Agent Orange" used during their service in Vietnam, summary judgment for defendants is affirmed over claims that the district court: 1) erred in concluding that the government contractor defense applied to bar plaintiffs' claims; and 2) abused its discretion by denying them discovery beyond what was available in files from prior Agent Orange litigation."
CIVIL PROCEDURE, CONSTITUTIONAL LAW, IMMIGRATION LAW
Brito v. Mukasey, No. 06-3974
"Petition for review of the BIA's denial of an application for adjustment status is denied where: 1) petitioner failed to exhaust before the agency the issue of his designation as an arriving alien; 2) the IJ lacked jurisdiction to adjudicate petitioner's present application for adjustment of status as it is new and separate from his previously filed application; and 3) petitioner lacked standing to assert his claim that regulations withholding from immigration judges jurisdiction to adjudicate adjustment of status applications are ultra vires"
CIVIL PROCEDURE, ERISA, GOVERNMENT BENEFITS, HEALTH LAW, INSURANCE LAW, LABOR & EMPLOYMENT LAW
Krauss v. Oxford Health Plans, Inc., No. 06-0343
"In an action against defendants-plan administrators for various violations of ERISA and the Women's Health and Cancer Rights Act, summary judgment for defendants is affirmed where defendants did not violate either statutes or the terms of the insurance plan in declining to reimburse the plaintiffs for: 1) more than $30,000 of plaintiff's $40,000 doctor's bill for bilateral breast reconstruction surgery where the maximum reimbursement for a single such surgery would have been $20,000; or 2) private-duty nursing following the reconstruction surgery. Claims for breach of fiduciary duty pursuant to ERISA and remaining claims are also without merit."
Krauss v. Oxford Health Plans, Incl
To see the New York Supreme Court Appellate Division First Department decisions (including index) released on March 27, 2008, click on the links below"
Index of Slip Opinions 02-27-08
Opinions Announced on 03-27-08
People v. Enrique Alvarez 6210/04
Not everyone is happy with the discussion in Wikipedia regarding pro se and why people proceed pro se. Today there has been some lively discussion on this topic on the web. Here is the question which seems to have generated much of the discussion and some responses to it. As always, I have edited out all names and other forms of identification in order to protect the confidentiality of the participants:
QUESTION:
Wikipedia's listing for Pro Se under "Why people proceed Pro Se"
"Many individuals choose to act pro se because they themselves are lawyers or have other legal experience, or simply because they are confident in their ability to convey their claim or defense without professional aid. Some pro ses may simply not want to pay the fees and expenses associated with hiring counsel. Others may want a lawyer, but find themselves unintentionally unrepresented due to their inability to find or pay for a lawyer willing to take their case. In civil court matters, this often occurs where the outcome is uncertain, such as in cases of alleged defamation where the plaintiff may be burdened by costly SLAPP legislation. Such people will often continue the case pro se rather than give up their quest for damages."
"In most serious criminal prosecutions in the United States, an indigent defendant has a right to a lawyer appointed by the court, so the decision to proceed pro se is rarely based on financial considerations. However, even indigent criminal defendants in jurisdictions that guarantee legal representation may still have to represent themselves in the later stages of the case, as free representation is often only provided by the state during the initial trial and the direct appeal. This is especially true in collateral proceedings such as habeas corpus or postconviction petitions that fall outside the normal appeals process".
Does anyone else think that this definition needs a rewrite? Most pro se's we help are not lawyers, do not have legal experience and are not confident in their abilities.
SOME RESPONSES:
The "Notable Pro Se Litigants" section is interesting but we see very few of those in our library.
Under the "Resources Section", local law libraries are mentioned but with a somewhat incomplete description of possible resources and services offered.
______________________
I agree with the rest of you that the Wikipedia entry is completely inadequate. However, even a re-write from a public law librarian may be inadequate if we are not careful. The pro se litigants we see in our libraries are not exactly that same as the much larger group that appears before the courts. Also, while we in law libraries may see a lot of vexatious litigants and mentally ill litigants who are repeat visitors, their actual numbers among those who go to court are quite small, and I would be concerned that too much emphasis on them in a Wikipedia article may well do damage for the many court-based and alternative organization based efforts to obtain funding to create programs for serving self represented litigants.
_______________________
Actually, at least one study rates the accuracy of articles there fairly highly. http://arstechnica.com/news.ars/post/20061127-8296.html
IMHO, I find wikipedia to be fairly accurate in a number of areas, but ONLY where there is iterative feedback and editing. Britannica is not itself flawless. The longer the article exists, and the more input it has received from diverse sources, the better the article seems to be in this environment.
So if we aren't willing - as experts and scholars - to contribute to the accuracy do we share some of the blame for the inaccuracy that exists? I'm not sure of the answer to that question, BTW, just throwing it out there for cogitation.
I do not believe everything is on the web, nor do I let Time Magazine "Help me understand." I also don't believe everything I hear from people with long strings of initials after their names just because they have long strings of initials after their names. :)
I think it's more useful to ask those who use this sort of tool "where do they grant what Berring calls "cognitive authority"?" rather than to dismiss the tool and those who use it.
________________________
It's not up to us to fix it. Black's Law Dictionary is a publication authored by legal experts. Wikipedia is like an open group diary - the problem is the expertise of some of the contributors (on any topic) is suspect. I feel those who rely on Wikipedia are like those who feel that the Internet has all knowledge, in one place; is accurate and is easy to find. Who needs experts and scholars to explain things to them?
The difference is Wikipedia focuses on public perception and not actuality. I wouldn't trust Wikipedia over PubMed, NIH or CDC. Peple just need to be aware - and made aware that Wikipedia is not the same as BRITANNICA.
________________________
Regardless of whether wikipedia is or isn't a good source, it's used and therefore should be corrected. Because of the nature of the source, we can always edit the entry if we don't like it
________________________
Knowing the limitation of Wikipedia and its authorship, I wonder if we want to take on the responsibility or rewriting the article.
My Public Services Librarian commented that "To me the encyclopedia is a unique idea and experience but is not something that I would rely on for accurate information. It can be OK for just a basic touch of a definition about most anything. I avoid it."
"The definition noted for pr se does seem inadequate and could be edited so that a better notion is out there for the general user. However, I am sure there are countless other definitions on Wikipedia that would not stand up to professional scrutiny.
Use it to look up anything to do with law libraries and see what you get. http://en.wikipedia.org/wiki/Law_library I think there is too muchattention being paid to this single article. It could well be a full
time task of several law librarians to edit what is on Wikipedia. And
to what purpose?"
________________________
It's not whether to act, but how do we act? I've heard it said that he best answer to ignorance is information. As information specialists our aim is to provide an array of resources and our best work is being able to show the connection betwen resources - including limitations.
________________________
To Readers:
Please feel free to comment on these responses; I'm sure others would be interested in your thoughts.
QUESTION: Law enforcement officers went to Castellanos's residence after receiving information from a confidential informant that Castellanos was in this country illegally, was selling a large quantity of drugs from his residence, and had a cousin who had been kidnapped and killed. The officers arrived at 6:15 a.m. The door was partially open. The officers knocked on the door, but no one answered. Neighbors reported no traffic in or out of the residence for about a week. Because the officers had information concerning a possible kidnapping and murder offense, the officers entered the residence to verify the welfare of the occupants. Finding no one inside, the officers left the residence.
As they left, Castellanos arrived and started to pull into the driveway. However, when he saw the officers, he drove away. The officers followed Castellanos for two blocks before stopping him for weaving. Detective Ortiz and another officer saw that Castellanos was "pretty drunk," stumbled out of the truck, and had urinated on himself. At first, Castellanos refused to give his name and said "Just arrest me." Castellanos then identified himself as "Guillermo Lujan," and claimed that his identification was at home. Detective Ortiz requested consent to search Castellanos's home and vehicle, but Castellanos did not reply. Detective Ortiz decided not to press the consent issue because Castellanos was intoxicated. The officers handcuffed Castellanos and transported him back to his residence to verify his identity. When they got to the residence, the police took off the handcuffs. Castellanos opened the unlocked door of his home and entered and the officers followed Castellanos i nside. Castellanos did not object to the officers entering the residence with him. Once inside the residence, Castellanos sat down on a couch in the living room. The officers asked Castellanos for the location of his identification, but he did not answer. Detective Ortiz asked for consent to search the home. Castellanos asked if the officers had a warrant, and when they said no, he refused to give consent. After Castellanos refused consent, the officers again asked Castellanos for his identification and Castellanos "kind of flipped his hand" in the direction of his bedroom. They went into the bedroom, and discovered a notebook with names, numbers, and monetary figures that appeared to list drug-dealing transactions. Detective Ortiz decided Castellanos was too intoxicated to give consent, and applied for a search warrant. During the execution of the search warrant, the officers discovered more evidence of drug dealing, cash, and weapons. Did the officers obtain lawful consent for the search?
ANSWER: No. However, mere intoxication was not enough to render consent to search involuntary. In each case, the question focused on mental awareness so that the act of consent was the consensual act of one who knew what he or she was doing and had a reasonable appreciation of the nature and significance of his or her actions. A fundamental flaw existed in the government's position that Castellanos consented to a search of the bedroom. The record indicated the officers failed twice to obtain consent from Castellanos to search his home. The first attempt occurred at the traffic stop. Castellanos did not respond, and Detective Ortiz did not push the issue because Castellanos was too intoxicated. The second attempt occurred in Castellanos's living room. Detective Ortiz asked Castellanos for consent to search his home. Castellanos asked if the officers had a warrant. When told no warrant existed, Castellanos refused to consent to a search. It was clear from the rec ord Castellanos never expressly authorized the officers' search of the residence or entry into his bedroom. Under the totality of the circumstances, the officers' entry into the residence's living room was reasonable. However, allowing an officer to enter one's home and allowing the officer to search the home were two very different matters. When a person permitted an officer to enter the person's home, the officer did not have free reign to wander around the home and search any area of the house without further consent. In fact, Castellanos expressly refused consent to search his residence. Consent to search could be inferred from gestures and other conduct. However, in this case, the officers believed Castellanos, who was not under arrest, was too intoxicated to consent to a search of his residence. The record showed Detective Ortiz requested a search warrant for the residence because Castellanos was too inebriated to consent. If Castellanos's intoxication was such that th e officers believed Castellanos was incapable of giving consent to search, it was clear Castellanos did not possess the capacity to give implied consent. Under the facts of the case, it was not reasonable for the officers to infer Castellanos impliedly consented to their entry into his bedroom when Castellanos "kind of flipped his hand" in that direction.
Citation: U.S. v. Castellanos, 2008 WL 649126 (8th Cir. 2008)
The U.S. Supreme Court yesterday (March 26) in a sweeping rejection of powers in the presidency ruled that neither the World Court nor President Bush can interfere with Texas regarding that states' enforcement of its own criminal laws. The justices in their 6-3 decision, Medellin v. Texas (06-984), ruled that neither an opinion by the World Court nor a directive from the President amounts to "enforceable federal law" that requires compliance by the State of Texas.
Sources for this posting:
Mauro, Tony. "High Court Backs Texas in Dispute With Bush Over Mexican in Death Row," New York Law Journal (March 26, 2008).
Berman, Douglas A. " 'States Win Over President in Criminal Law Issue,' In Medellin". Sentencing Law and Policy Blog. (Posted March 25, 2008).
CIVIL PROCEDURE, CONTRACTS, DISPUTE RESOLUTION & ARBITRATION, ENVIRONMENTAL LAW, LANDLORD TENANT LAW, MANUFACTURING, WATER LAW
Hall Street Assocs., L.L.C. v. Mattel, Inc., No. 06-989
The statutory grounds provided by the Federal Arbitration Act (FAA) for expedited judicial review to confirm, vacate, or modify arbitration awards are exclusive, as opposed to mere threshold provisions open to expansion by agreement. In a dispute between a commercial landlord and tenant-manufacturer, involving arbitration of the applicability of a lease indemnification provision for failure to comply with environmental laws, the Ninth Circuit's judgment is vacated and the case remanded for further proceedings
Hall Street Associates, L.L.C. v. Mattell, Inc.
CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, INTERNATIONAL LAW
Medellin v. Texas, No. 06-984
Neither an International Court of Justice case, Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12, nor a memorandum issued by the President of the United States constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. Consequently, dismissal of a habeas petition in a death penalty case raising a claim that petitioner was not informed of his Vienna Convention right to notify the Mexican consulate of his detention is affirmed.
March 17, 2008 - March 21, 2008
To view these cases distributed by Findlaw.com you must first sign in to Findlaw.com. "Findlaw summaries [may] include opoinions that have not yet been released for publication and may be subject to modification, correction or withdrawl.
U.S. Supreme Court, March 19, 2008
Snyder v. Louisiana, No. 06-10119
A Louisiana conviction for first-degree murder and death sentence is reversed where the trial judge committed clear error in its ruling on an objection to the prosecution's strike of a black juror during voir dire, in violation of Batson v. Kentucky, 476 U. S. 79.
U.S. 1st Circuit Court of Appeals, March 18, 2008
US v. LaFortune, No. 06-1699
Conviction and sentence on child pornography charges are affirmed where: 1) expert testimony concerning whether images depict real rather than virtual children is not required in order for a magistrate judge to determine whether there is probable cause to issue a search warrant for a defendant's home; and 2) a jury was not required to determine the fact of defendant's prior convictions in order to apply a sentencing enhancement for recidivism.
U.S. 1st Circuit Court of Appeals, March 19, 2008
US v. Ayala-Tapia, No. 06-2781
A conviction and sentence for importing and possessing with intent to distribute heroin are affirmed where: 1) the government presented sufficient evidence for a rational jury to conclude beyond a reasonable doubt that defendant "knew" she was carrying drugs; and 2) defendant failed to meet the statutory requirements for the "safety valve" exception to apply to her case.
U.S. 1st Circuit Court of Appeals, March 21, 2008
US v. Belton, No. 07-1190
Conviction for drug trafficking, drug conspiracy, and multiple weapons charges is affirmed over claims that the district court: 1) erred in denying motion to suppress evidence procured from a search warrant issued from a fatally flawed warrant application; and 2) violated the Speedy Trial Act as defendant's failure to seek dismissal constituted a waiver.
U.S. 1st Circuit Court of Appeals, March 21, 2008
US v. Martin, No. 06-1983
A downward departure sentence for conspiracy to distribute cocaine base is affirmed over the government's challenge to the sentence's reasonableness where the sentencing court properly exercised its discretion and it reached a defensible result, even though the defendant availed from a substantial downward deviation from his guideline sentencing range.
U.S. 2nd Circuit Court of Appeals, March 17, 2008
US v. Cutler , No. 05-2516, 05-3303, 05-6178
Sentences for, inter alia, bank fraud, tax evasion, false statements, conspiracy, and mail fraud are vacated and remanded where the trial court's sentencing terms were substantively unreasonable and constituted an abuse of discretion in light of: 1) procedural errors; 2) clear factual errors; and 3) misinterpretations of 18 U.S.C. section 3553(a) factors, in particular, the needs to provide just punishment, to afford adequate deterrence of crimes by others, to avoid unwarranted disparities among similarly situated defendants, and to promote respect for the law. .
U.S. 2nd Circuit Court of Appeals, March 19, 2008
US v. Sero, No. 05-6967
A sentence for arms trafficking to the Philippines in violation of federal law is affirmed over claims that the sentence was unreasonable because the district court: 1) should have applied a lower offense level under U.S.S.G. section 2M5.2(a)(2); 2) misunderstood its authority to grant a downward departure; and 3) imposed a "seemingly automatic" term of supervised release.
U.S. 2nd Circuit Court of Appeals, March 20, 2008
US v. Richardson , No. 05-7005
Sentence for conspiracy to distribute cocaine and cocaine base, which was substantially reduced premised on defendant's substantial assistance with the government, is vacated and remanded where: 1) the sentence departed approximately 93% from the statutory minimum; and 2) the trial court's failure to articulate reasons for its reduction below the statutory minimum precluded a determination of reasonableness or excessiveness. .
U.S. 3rd Circuit Court of Appeals, March 20, 2008
Carrascosa v. McGuire, No. 07-1748/4130
In a case involving the incarceration of a parent who violated terms of a Parenting Agreement for failure to return her child from abroad, denial and dismissal with prejudice of a petition for a writ of habeas corpus to end detention is affirmed over claims that the district court erred in: 1) finding the Spanish courts departed from the mandate of the Hague Convention's Civil Aspects of International Child Abduction; and 2) failing to afford comity to the decisions of the Spanish courts.
U.S. 4th Circuit Court of Appeals, March 17, 2008
Cagle v. Branker, No. 07-6
Dismissal of a petition for writ of habeas corpus in a death penalty case is affirmed over claims that: 1) the absence of newly available evidence from a key witness undermined the jury's capital sentence and entitled petitioner to a new sentencing proceeding; 2) his attorneys' motion to sever constituted ineffective assistance of counsel; 3) his attorneys' approach to mitigation during penalty phase of trial also constituted ineffective assistance; and 4) the lack of a jury instruction as to voluntary intoxication deprived him of a fair trial and sentence. ..
U.S. 4th Circuit Court of Appeals, March 17, 2008
Yarbrough v. Johnson , No. 07-10
In a proceeding seeking post-conviction relief for conviction of capital murder and robbery, denial of petitioner's writ of habeas corpus is affirmed over claims of ineffective assistance of counsel based on a failure to seek public funds for a DNA expert, as well as a failure to investigate and present mitigating evidence.
U.S. 4th Circuit Court of Appeals, March 20, 2008
US v. Brewer, No. 06-4836
Sentence for distribution of more than five grams of cocaine base is affirmed where: 1) the court is unable to review the district court's decision to deny a downward departure since the sentencing court understood its authority, but declined to exercise it on the facts of the case; 2) the district court did not focus exclusively on defendant's prior criminal activity in imposing his sentence; and 3) it is unnecessary to remand defendant's sentence to the district court for reconsideration under the new amendments to the sentencing guidelines for crack offenses since that court may address the issue either sua sponte or in response to a motion.
U.S. 5th Circuit Court of Appeals, March 17, 2008
US v. Yeager, No. 06-20321, 06-20593, 06-20691
In a prosecution arising from the collapse of Enron and its subsidiaries, denial of defendants-senior executives' motion to dismiss the government indictment is affirmed over a claim that a jury's acquittal of defendants on certain counts collaterally estopped the government from pursuing the mistried counts.
U.S. 5th Circuit Court of Appeals, March 18, 2008
Rogers v. McDorman, No. 05-41347
In a suit brought by former directors of a bank alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and state-law claims, a take nothing judgment against defendants is affirmed, primarily as: 1) defendants properly raised the in pari delicto defense; 2) contrary to directors' claim, in pari delicto is a cognizable defense to a civil RICO claim; 3) the district court properly followed the Bateman Eichler formulation of in pari delicto, the "substantially equal responsibility" standard; and 4) there was sufficient evidence to support a jury finding that directors, and bank, were in pari delicto.
U.S. 5th Circuit Court of Appeals, March 18, 2008
US v. Miller, No. 06-11078
A conviction for tax evasion is affirmed where: 1) sufficient evidence supported the jury's verdict; 2) there was no abuse of discretion in various evidentiary rulings by the district court; 3) a claim the indictment was duplicitous failed as defendant was not prejudiced; and 4) a Brady claim failed as the cumulative effect of the suppressed evidence at issue did not undermine confidence in the verdict.
U.S. 6th Circuit Court of Appeals, March 17, 2008
US v. Goodman, No. 06-5513
A sentence for being a felon in possession of a firearm is affirmed in part, vacated in part, and remanded where: 1) for purposes of sentencing under the ACCA, until defendant has his 1993 escape conviction overturned or removed from his record, precedent requires the circuit court to conclude that such conviction was for a violent felony; but 2) the evidence before the district court did not establish that the firearm at issue was possessed in connection with a controlled-substance offense.
U.S. 6th Circuit Court of Appeals, March 18, 2008
Carter v. Burns, No. 07-5942
Dismissal of pro se prisoner's civil rights action against fourteen judges and justices of various Tennessee courts in their official capacities is affirmed in part and vacated in part where: 1) contrary to the ruling below, the Rooker-Feldman doctrine does not apply to plaintiff's facial constitutional challenge to Tennessee statutes governing collateral review; but 2) an as-applied challenge was barred under the Rooker-Feldman doctrine.
U.S. 6th Circuit Court of Appeals, March 20, 2008
US v. Urrieta, No. 07-5431
In a prosecution for being an illegal alien in possession of firearms and possession of unlawful identification documents, denial of defendant's motion to suppress evidence is reversed where, contrary to the ruling below, an extended detention violated defendant's Fourth Amendment rights.
U.S. 6th Circuit Court of Appeals, March 21, 2008
Adkins v. Wolever, No. 07-1421
In plaintiff's suit against a guard at a correctional facility alleging the guard assaulted him in his cell and caused serious injuries, denial of an instruction for an adverse inference based on the alleged spoliation of certain film and photographic evidence of the alleged assault is affirmed where the district court did not abuse its discretion in refusing to consider a third-party spoliation instruction under the law of Michigan. .
U.S. 6th Circuit Court of Appeals, March 21, 2008
King v. Ambs, No. 06-2054
In a 42 U.S.C. section 1983 action arising from plaintiff's arrest after he repeatedly told another individual not to talk to defendant-officer, summary judgment for defendant is affirmed where: 1) because defendant had probable cause to arrest plaintiff for disorderly conduct, he did not violate plaintiff's Fourth Amendment rights; 2) summary judgment was proper on a First Amendment claim that plaintiff was arrested for constitutionally protected speech, as his speech was not protected; and 3) even if a constitutional violation had been established, such right would not have been clearly established. .
U.S. 7th Circuit Court of Appeals, March 17, 2008
US v. Salgado, No. 07-2163, 07-2393
In the context of 18 U.S.C. section 2114(a) which criminalizes attempting to rob a person having custody of money belonging to the U.S., the person's possession of mail or federal property is essential. Defendants' convictions for conspiracy to steal money from the U.S., attempting to rob a person having custody of money belonging to the U.S., and a related firearm offense are reversed and remanded as to the first two offenses where: 1) an informant was not carrying any money or other property belonging to the U.S.; and 2) defendants agreed to rob someone who they believed to be a private actor.
U.S. 7th Circuit Court of Appeals, March 17, 2008
US v. Hoffman, No. 07-1874
A conviction for various drug and gun-related offenses is affirmed over a claim that the district court erred in denying defendant's motion for a Franks hearing to suppress incriminating evidence found in his home on the grounds that the affidavit supporting the search warrant contained false statements that were made with a reckless disregard for the truth.
U.S. 7th Circuit Court of Appeals, March 21, 2008
US v. Sanders, No. 07-1176
Conviction and sentence on firearms charges are affirmed where: 1) there was sufficient evidence that defendant knew he possessed a shotgun shorter than the legal limit; 2) defendant waived his challenge to jury instructions; 3) the district court properly understood its discretion at sentencing; and 4) the court gave an adequate statement of reasons for the sentence.
U.S. 7th Circuit Court of Appeals, March 21, 2008
US v. Fiasche, No. 07-1132
Convictions for conspiracy to possess narcotics with intent to distribute are affirmed where police officers had reasonable suspicions that justified a vehicle stop and search, and an objectively reasonable belief that exigent circumstances justified entry into a defendant's home.
U.S. 9th Circuit Court of Appeals, March 17, 2008
US v. Holland, No. 06-30258
A conviction and sentence for mailing threatening communications and threatening the President of the United States is affirmed over a claim that the district court judge should have recused himself where the district judge reasonably construed defendant's threatening phone message as an attempt to manipulate the court system which did not warrant his sua sponte recusal. (Superceding opinion)
U.S. 9th Circuit Court of Appeals, March 19, 2008
US v. Soto, No. 07-30011
A conviction for possession of methamphetamine with intent to distribute is affirmed where: 1) any error was harmless, for purposes of a claim that the district court violated Supreme Court precedent by failing to give a requested instruction that the jury make no adverse inference from his constitutionally protected choice not to testify; and 2) the district court properly instructed the jury on the government's burden of proof.
U.S. 9th Circuit Court of Appeals, March 19, 2008
US v. Davis, No. 06-10527
A sentence imposed on defendant following a limited remand pursuant to US v. Ameline, 409 F.3d 1073 (9th Cir. 2005), is vacated and remanded with instructions where the district court exceeded its authority when it increased defendant's sentence on one count.
U.S. 9th Circuit Court of Appeals, March 20, 2008
US v. Gianelli, No. 07-10233
An order reinstating a 2001 "Order Imposing Payment Plan" on defendant, aimed at collecting the remaining amount of restitution owed from his sentence for mail fraud, is affirmed where defendant waived the right to appeal the amount of the restitution order by failing to timely file a direct appeal. Because the Victim Witness Protection Act (VWPA) does not express the intent that the federal government will be bound by state statutes of limitations in the enforcement of restitution judgments, and because neither that Act nor any other federal statute limits the time for enforcement of restitution judgments under the VWPA, the government may enforce against defendant the VWPA restitution judgment at any time.
U.S. 9th Circuit Court of Appeals, March 20, 2008
Harrison v. Ollison, No. 06-55470
Dismissal of petitioner's 28 U.S.C. section 2241 habeas petition for lack of jurisdiction is affirmed where petitioner did not establish that his petition was a legitimate section 2241 petition brought pursuant to the escape hatch of section 2255, and thus the circuit court lacked jurisdiction under section 2241 to hear the appeal.
U.S. 9th Circuit Court of Appeals, March 20, 2008
US v. Davenport, No. 06-30596
The offense of possessing child pornography is a lesser included offense of the receipt of child pornography. Judgment sentencing defendant for receiving and possessing child pornography is vacated and remanded where his simultaneous conviction for both receipt and possession of child pornography violates the Fifth Amendment's prohibition on double jeopardy.
U.S. 9th Circuit Court of Appeals, March 21, 2008
Canyon County v. Syngenta Seeds, Inc., No. 06-35112
In a case involving an Idaho county's attempt to recover, from defendants, damages under the Racketeer Influenced and Corrupt Organizations Act (RICO) for additional monies it claimed to have expended on public health care and law enforcement services for undocumented immigrants, dismissal of the complaint is affirmed as the county lacked statutory standing for the RICO claims where: 1) county failed to allege that it was injured in its business or property; and 2) with respect to almost all of defendants' alleged RICO violations, county could not show that its claimed injuries were proximately caused by defendants' conduct.
U.S. 10th Circuit Court of Appeals, March 17, 2008
US v. Nacchio, No. 07-1311
The convictions of Joseph Nacchio, the former CEO of Qwest Communication, for insider trading are reversed and remanded for a new trial where: 1) the trial court judge erred by excluding an expert witness for the defense who intended to provide an economic analysis of Nacchio's trading patterns, and "testify about the economic importance of the allegedly material inside information"; but 2) the evidence before the district court was sufficient for the government to try him again without violating the Double Jeopardy Clause.
U.S. 10th Circuit Court of Appeals, March 17, 2008
US v. Sanchez, No. 06-2329
A conviction for being a felon in possession of a firearm is affirmed over a claim of erroneous denial of a motion to suppress where: 1) where an identifiable woman's report of an assault to police in a face-to-face encounter, which was later corroborated by other events, provided sufficient justification for an initial traffic stop; and 2) officers did not exceed the scope of the stop as they reasonably suspected the occupants of the car might be armed and dangerous based on the reported assault, as well as the discovery of a concealed weapon on the driver of the van.
U.S. 11th Circuit Court of Appeals, March 18, 2008
Trawick v. Allen , No. 07-11611
Denial of a habeas corpus petition in a death penalty case is affirmed over a claim that the State of Alabama exercised its peremptory strikes in a discriminatory manner by using eleven of its fourteen strikes to remove women from the venire in violation of Supreme Court precedent.
U.S. 11th Circuit Court of Appeals, March 20, 2008
Devine v. US, No. 07-11206
Denial of a prisoner's 28 U.S.C. section 2255 motion to vacate, set aside, or correct sentence is affirmed over claims of: 1) inadequate consultation from counsel about petitioner's rights to an appeal; 2) an affirmative duty imposed on counsel to consult about appeals; and 3) prejudice as a result of counsel's failure to consult.
Supreme Court of California, March 20, 2008
People v. Gay, No. S093765
Defendant's judgement of death for killing a Los Angeles police officer is reversed and remanded where the trial court prejudicially erred at a penalty retrial by: 1) barring defendant from offering significant mitigating evidence concerning the circumstances of the murder, in particular, evidence that another individual fired all of the shots; and 2) instructing the jury not only that a prior jury had found defendant guilty of murdering the officer by personal use of a firearm, but also that it had been "conclusively proved by the jury in the first case that this defendant did, in fact, shoot and kill Officer Verna" and that the jury was to "disregard any statements ... and ... any evidence to the contrary during the trial."
New York Court of Appeals, March 18, 2008
People v. Taveras, No. 30, 31
Dismissal of appeals from convictions and sentences imposed "in absentia" upon capturing defendants after years of absence is affirmed where there was no abuse of discretion in dismissing the appeals which would allow the government to suffer prejudice in locating key witnesses to crimes and retrying a case after several years.
New York Court of Appeals, March 20, 2008
People v. White , No. 38
In circumstances which do not constitute a single continuous chain of events, Mirandized statement are admissible at trial notwithstanding a prior un-warned custodial interrogation.
Supreme Court of Florida, March 20, 2008
Phillips v. State of Florida, No. SC06-2554
In a death penalty case, an order denying inmate's successive motion to vacate his judgment and sentence and an order concluding that he is not mentally retarded under Florida Rule of Criminal Procedure 3.203 are affirmed where: 1) the circuit court did not err in finding that he does not function at a significantly subaverage intellectual level; 2) the trial court did not err in concluding that he failed to demonstrate the requisite deficits in adaptive functioning; and 3) ample evidence supported a finding that he failed to prove the onset of mental retardation before age 18.
Supreme Court of Florida, March 20, 2008
Bevel v. State of Florida, No. SC05-2213
Defendant's convictions for two counts of first-degree murder and one count of attempted first-degree murder and sentences of death are affirmed over claims of error regarding: 1) a failure to strike a prospective juror for cause; 2) admission of photographic evidence; 3) erroneous admission of defendant's confession; 4) the sufficiency of the evidence; 5) findings regarding aggravators and mitigators; 6) the adoption of the state's proposed findings in the sentencing order; 7) the proportionality of the death sentence; 8) defendant's mental age; and 9) the constitutionality of Florida's death penalty statute.
Supreme Court of Florida, March 20, 2008
Israel v. State of Florida, No. SC05-1739, SC06-653
Denial of a motion to vacate a conviction for first-degree murder and death sentence, as well as a petition for habeas relief, are affirmed and denied, respectively, over claims of error regarding: 1) ineffective assistance of counsel; 2) whether procedural and substantive errors deprived him of a fundamentally fair trial; 3) the constitutionality of Florida's death penalty statute; 4) cumulative error; 5) jury instructions; 6) defendant's competency to be executed; and 7) whether execution by lethal injection is cruel and unusual punishment.
Illinois Supreme Court, March 20, 2008
People v. Hudson, No. 104470
Conviction for home invasion is affirmed over claims that: 1) psychological injury does not satisfy the "injury" element of the offense of home invasion; 2) the evidence was insufficient to show that defendant intended to harm the victim; 3) the evidence was insufficient to prove that the victim suffered psychological harm; and 4) the circuit court denied defendant a fair hearing on his posttrial claims of ineffective assistance of trial counsel.
Illinois Supreme Court, March 20, 2008
People v. Slater, No. 104095
Conviction for one count of permitting the sexual abuse of a child is affirmed where an inculpatory statement made by defendant during a questioning session at the Will County Child Advocacy Center did not violate Miranda, was made knowingly and voluntarily, and was properly admissible at trial, and therefore, a second inculpatory statement made by defendant thereafter at the sheriff's department could not be tainted by the properly obtained first statement.
Illinois Supreme Court, March 20, 2008
People v. Bew, No. 104084
In a conviction for unlawful possession of cannabis with intent to deliver, an appellate court's finding of ineffective assistance of counsel and remand for new trial is reversed where: 1) the appellate court erred in its reliance on Cox, which held police must have an articulable suspicion before conducting a canine sniff at a traffic stop; and 2) the record is insufficient to review the alternative arguments of the parties.
Illinois Supreme Court, March 20, 2008
People v. Harris, No. 103796
In a conviction for unlawful possession of a controlled substance arising from a routine traffic stop of an unlicensed driver with outstanding warrants, the appellate court's reversal of the conviction upon remand from the U.S. Supreme Court is reversed and the conviction affirmed where neither the officer's request that defendant provide identification nor the subsequent warrant check using the information obtained from the defendant violated his rights under the fourth amendment.
California Appellate Districts, March 18, 2008
People v. Concha, No. B195197
Convictions for first degree murder of deceased accomplice under provocative act theory and attempted first degree murder of the victim are affirmed where: 1) substantial evidence supported the conviction for murder based on the provocative act theory; 2) conviction of first degree murder is supported by a jury's finding that the attempted murder of the victim was deliberate and premeditated; 3) an instruction on the provocative act theory did not constitute prejudicial error; and 4) there was no error in excluding evidence of one of the defendant's blood alcohol level and in not instructing the jury on voluntary intoxication.
California Appellate Districts, March 20, 2008
People v. McKey, No. D050554
An order involuntarily committing defendant after jury found him to be a sexually violate predator (SVP) within the meaning of Sexually Violent Predators Act is affirmed over claims that the order should be reversed because: 1) his indeterminate commitment pursuant to the Act violated his federal constitutional rights to due process of law, against ex post facto laws, and to equal protection under the law; 2) the evidence was insufficient to support the finding he is an SVP; and 3) the trial court erred by refusing his proposed modification of a jury instruction.
March 17, 2008 - March 21, 2008
To view these cases distributed by Findlaw.com you must first sign in to Findlaw.com. "Findlaw summaries [may] include opoinions that have not yet been released for publication and may be subject to modification, correction or withdrawl.
U.S. Supreme Court, March 18, 2008
Washington State Grange v. Washington State Republican Party, No. 06-713, 06-730
Contrary to the Ninth Circuit's holding below, a 2004 initiative passed by Washington voters changing the state's primary election system is facially constitutional. The initiative, I-872, provided that: 1) candidates must be identified on the primary ballot by their self-designated party preference; 2) voters may vote for any candidate; and 3) the two top votegetters for each office, regardless of party preference, advance to the general election.
U.S. 1st Circuit Court of Appeals, March 21, 2008
Damon v. Moore, No. 07-1365
In a defamation suit against Michael Moore for non-consensual use of an interview conducted for NBC Nightly News in Moore's "Fahrenheit 9/11" documentary film, dismissal of plaintiff's defamation claims is affirmed where plaintiff's appearance in the documentary was not reasonably susceptible of a defamatory meaning or interpretation under Massachusetts state law.
U.S. 2nd Circuit Court of Appeals, March 20, 2008
Almontaser v. NY Dep't of Educ., No. 07-5648
Denial of an application for a preliminary injunction based on constitutional claims against a city Department of Education in rejecting plaintiff's application for a NYC public school principal position is affirmed where district court did not abuse its discretion in denying application for injunctive relief.
U.S. 2nd Circuit Court of Appeals, March 21, 2008
Rweyemamu v. Cote, No. 06-1041
In a Title VII suit instituted by a Catholic priest against a bishop and a diocese alleging racial discrimination in a denial of a promotion and tyhe termination of his employment, dismissal of the complaint for lack of jurisdiction is affirmed where: 1) Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), is deemed inapplicable due to defendants' explicit waiver of any defense based on a violation of Religious Freedom Restoration Act; and 2) Title VII is unconstitutional as applied to the case as the nature of plaintiff's employment as an ordained priest precluded his claims against the defendant under the ministerial exception.
U.S. 3rd Circuit Court of Appeals, March 17, 2008
People Against Police Violence v. City of Pittsburgh, No. 06-4457
In a lawsuit to challenging the constitutionality of Pittsburgh's ordinance regulating expressive activities in public forums, an order awarding attorneys' fees to plaintiffs pursuant to 42 U.S.C. section 1988(b) is affirmed where: 1) plaintiffs in this case were the "prevailing party" by virtue of achieving relief on the merits of their claims in the form of a preliminary injunction, even though they did not secure a final judgment in their favor; and 2) the fee awarded was reasonable. Relief on the merits achieved in the form of a preliminary injunction can, under appropriate circumstances, confer "prevailing party" status.
U.S. 6th Circuit Court of Appeals, March 18, 2008
Carter v. Burns, No. 07-5942
Dismissal of pro se prisoner's civil rights action against fourteen judges and justices of various Tennessee courts in their official capacities is affirmed in part and vacated in part where: 1) contrary to the ruling below, the Rooker-Feldman doctrine does not apply to plaintiff's facial constitutional challenge to Tennessee statutes governing collateral review; but 2) an as-applied challenge was barred under the Rooker-Feldman doctrine.
U.S. 6th Circuit Court of Appeals, March 21, 2008
King v. Ambs, No. 06-2054
In a 42 U.S.C. section 1983 action arising from plaintiff's arrest after he repeatedly told another individual not to talk to defendant-officer, summary judgment for defendant is affirmed where: 1) because defendant had probable cause to arrest plaintiff for disorderly conduct, he did not violate plaintiff's Fourth Amendment rights; 2) summary judgment was proper on a First Amendment claim that plaintiff was arrested for constitutionally protected speech, as his speech was not protected; and 3) even if a constitutional violation had been established, such right would not have been clearly established. .
U.S. 8th Circuit Court of Appeals, March 17, 2008
Entm't Software Ass'n v. Swanson , No. 06-3217
Grant of a permanent injunction against the enforcement of a Minnesota law that prohibits minors from purchasing or renting video games bearing a "Mature" or "Adult Only" rating is affirmed where, under the exacting standard of proof established for cases of this nature, there was no error in finding inadequate the state's evidence regarding a causal relationship between the exposure to such violence in video games and minors' subsequent psychological dysfunction.
U.S. 11th Circuit Court of Appeals, March 21, 2008
Dimaio v. Democratic Nat'l Comm. , No. 07-14816
In a declaratory judgment action instituted by an individual alleging that the Democratic National Committee's announced refusal to seat Florida's Democratic delegation at its National Convention would violate his Constitutional rights, dismissal of the complaint is affirmed, vacated, and remanded in part where: 1) plaintiff's complaint was properly dismissed for a lack of standing under the Lujan Test; but 2) the district court lacked jurisdiction to consider the substantive questions presented by the case. .
California Appellate Districts, March 20, 2008
People v. McKey, No. D050554
An order involuntarily committing defendant after jury found him to be a sexually violate predator (SVP) within the meaning of Sexually Violent Predators Act is affirmed over claims that the order should be reversed because: 1) his indeterminate commitment pursuant to the Act violated his federal constitutional rights to due process of law, against ex post facto laws, and to equal protection under the law; 2) the evidence was insufficient to support the finding he is an SVP; and 3) the trial court erred by refusing his proposed modification of a jury instruction. .
Long term fiscal challenge looms as the baby boom generation retires.
Report on U.S. Fiscal Long Term Outlook as of January 2008