From: eWeek Emerging, Technologies August 29, 2008
Slide show:
First Look: IE 8 Beta 2
By Jim Rapoza
August 29, 2008
"Despite its market dominance, Internet Explorer has been in many ways the browser that was left behind. Beta 2 of IE 8 shows promise with strong privacy controls and new usability features".
From: CIO Insider, Posting by Esther Schindler, August 26, 2008.
Sharing Microsoft Office Files the Easy Way: A Five Minute Productivity Tip
"Need to create a report or presentation with the input of several people? Don't e-mail that large file to all the participants. Microsoft Office makes it simple to share Word, Excel or PowerPoint documents over the corporate network."
Careers
How Michelle Obama's 'Savvy Sacrifice' Helped Her Husband
Aug 25, 2008, 01:28 pm CDT
"Working as an associate at a powerhouse international law firm based in Chicago, Michelle Obama had what many would have considered a dream job for a lawyer. But she gave up the Sidley Austin job to pursue a public interest career. This "savvy sacrifice" has provided her husband, presumptive Democratic."
Law Practice Management
E-Mail Scam Targeting Law Firms Ensnares a Lawyer in Atlanta
Aug 26, 2008, 06:27 am CDT
"The latest victim of an e-mail scam targeting law firms is Atlanta lawyer Gregory Bartko. The lawyer sometimes handles international legal transactions involving Asian clients, and work is often conducted by e-mail because of the time difference, according to the Fulton County Daily Report. So Bartko wasn't alarmed when he... "
Legal Technology
BigLaw Firm Recruits on Facebook
Aug 26, 2008, 02:43 pm CDT
"Looking for a way to better promote itself to the next generation of lawyers, Curtis, Mallet-Prevost, Colt & Mosle has launched a Facebook page as part of its broader law school recruiting efforts. 'We are pleased to be capitalizing on the popularity of the most widely used social networking site,'... "
Associates
Law Firm Life Satirized in Bitter Lawyer Webisodes
Aug 25, 2008, 12:30 pm CDT
"A lawyer-turned-TV writer has posted a satirical look at law firm life in four Webisodes posted on the Bitter Lawyer website. The Webisodes feature new associate Nick Conley, who works at Sullivan & Moore, "the most prestigious law firm in the entire country." In one episode, Nick is directed to... :.
Law Practice Management
Big Law Firms' Predicament: Committed to Hire More Lawyers than Needed
Aug 27, 2008, 05:54 am CDT
"Because big law firms make associate hiring commitments two years in advance, they are finding themselves in a bind. As the economic downturn has cut into legal work, the firms are pledged to hire more lawyers than they need. Some firms are hiring several new associates even though they recently... "
Contract Law
Court Quotes 'Seinfeld' Episode in Ruling Involving Author Tom Clancy
Aug 26, 2008, 10:04 am CDT
"Maryland's highest court is relying on a Seinfeld episode to explain why author Tom Clancy cannot harm a partnership with his ex-wife simply because of spite. The Maryland Court of Appeals cites the Seinfeld episode in which Jerry tries to return a jacket he purchased after an unrelated personal quarrel..."
Law Practice Management
WolfBlock to New 1st-Years: We'll See You in November
Aug 26, 2008, 02:27 pm CDT
"Faced with a business slowdown, Philadelphia-based WolfBlock has told its incoming first-year class to take a vacation. "The firm said all but one of eight recent law school graduates were told not to report for work until Nov. 10 rather than the normal start date shortly after Labor Day," reports..."
Law Practice Management
ABA Ethics Group OKs Outsourcing, But Nixes At Least Some Fee Markups
Aug 25, 2008, 07:12 pm CDT
"Although the lawyer in charge remains ultimately responsible and can be held accountable if anything goes awry, those working under his or her direction don't have to be in the same building in order to comply with professional standards. In fact, they don't even have to be in the same... "
Law Schools
U.S. News Considers Counting Part-Timers in Law School Rankings
Aug 26, 2008, 08:21 am CDT
"U.S. News & World Report is considering counting the undergraduate records of part-timers in its law-school rankings system, a change that would reverse recent gains by many schools. Some schools game the system by funneling those with lower undergrad grades and LSAT scores in their part-time programs, the Wall Street... "
Law Firms
Leader of Dissolved IP Boutique Says No One Wanted His Job
Aug 27, 2008, 07:11 am CDT
"A Philadelphia intellectual property boutique is being acquired by a larger firm, and the outgoing managing partner attributes his firm's dissolution to an unusual problem: No one wanted his job. Synnestvedt & Lechner of Philadelphia was having a banner year in terms of revenue per lawyer, managing partner Joseph Posillico..."
From: Findlaw Summaries August 28, 2008.
ATTORNEY'S FEES, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE,
SECURITIES LAW, TAX LAW
"Dismissal of indictment of thirteen former partners of the accounting firm KPMG for creating fraudulent tax shelters is affirmed where: 1) the government deprived defendants of their right to counsel under the Sixth Amendment by causing KPMG to place conditions on the advancement of legal fees to defendants, and to cap the fees and ultimately end them; 2) the government failed to cure the Sixth Amendment violation; and 3) no other remedy will return defendants to the status quo ante"
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. 2nd Circuit Court of Appeals, August 22, 2008
Price v. New York State Bd. of Elections, No. 07-5367
In a challenge to state law prohibiting the use of absentee ballots in elections for county committee members brought under the First Amendment, grant of summary judgment for defendant state board of elections is reversed where: 1) the arguments proffered by the State are so extraordinarily weak that they cannot justify the burdens imposed by Election Law section 7-122; and 2) the district court therefore erred in granting defendants' motion to dismiss and in denying plaintiffs' motion for summary judgment.
U.S. 3rd Circuit Court of Appeals, August 19, 2008
Fellner v. Tri-Union Seafoods, L.L.C., No. 07-1238
In a class-action suit alleging injury caused by methylmercury and other harmful compounds in defendant's canned tuna products, grant of a motion to dismiss is reversed and remanded where: 1) the FDA had not enacted a pervasive regulatory scheme regarding mercury in tuna that would preempt plaintiff's state-law claims; 2) the FDA's decision not to require warning labels on tuna was not a conclusive determination preempting a state failure-to-warn claim; and 3) the FDA had not expressly rejected mercury warnings as misbranding under federal law.
U.S. 3rd Circuit Court of Appeals, August 21, 2008
Combs v. Homer-Center Sch. Dist. , No. 06-3090
In a suit by parents who home-school their children seeking declaratory relief and a permanent injunction to prohibit the Commonwealth of Pennsylvania from requiring plaintiffs to comply with reporting and review requirements, summary judgment for defendants is affirmed where: 1) the challenged statute was a neutral law of general applicability, subject to rational basis review, and was constitutional as it rationally furthered legitimate state interests; 2) plaintiffs did not assert a valid "hybrid-rights" claim under which, as a potential violation of both free-exercise rights and the parental right to direct a child's education, the law might be subject to greater scrutiny; 3) plaintiffs' claims did not fall under the narrow exception of Wisconsin v. Yoder, 406 U.S. 205 (1972), requiring heightened scrutiny when parents challenge compulsory-education laws on religious grounds; and 4) having disposed of all federal claims, the court declined to exercise supplemental jurisd! iction over state-law claims under the Religious Freedom Protection Act.
U.S. 6th Circuit Court of Appeals, August 20, 2008
Barr v. Lafon, No. 07-5743
In an action brought by high school students in Tennessee desiring to express their southern heritage by wearing clothing depicting the Confederate flag at school and raising First Amendment, Equal Protection Clause, and Due Process Clause claims, summary judgment for defendants-principal and other officials is affirmed where: 1) the school reasonably forecasted that images of the Confederate flag would substantially and materially disrupt the school environment; 2) the dress code's ban on racially divisive symbols, as enforced against the Confederate flag, is narrowly tailored to a substantial government interest; and 3) plaintiffs forfeited their due process claim.
U.S. 6th Circuit Court of Appeals, August 22, 2008
Phelps-Roper v. Strickland, No. 07-3600
A provision of Ohio Rev. Code section 3767.30, which prohibits "picketing" or "other protest activities," within 300 feet of the funeral or burial service, from one hour before until one hour after the funeral or burial service, is a reasonable, content-neutral regulation of the time, place, and manner of speech.
U.S. 7th Circuit Court of Appeals, August 22, 2008
Madison v. Frazier, No. 07-1944
In a suit alleging libel and false light for defendant-author's allegedly defamatory portrayal of plaintiff-NAACP officer in a book criticizing local police and the NAACP, summary judgment for defendants is affirmed where: 1) no evidence demonstrated that a "fantasy sequence" in the book was more than non-actionable rhetorical hyperbole; 2) speculations contained in one chapter were not factual assertions but constitutionally-protected opinions; 3) plaintiff's reference to defendant as a "liar" was defamatory per se, but defendant, a public figure, failed to produce evidence to demonstrate that the statement was made with actual malice; and 4) the false-light claim necessarily failed in the absence of a valid per se defamation claim. .
U.S. 8th Circuit Court of Appeals, August 18, 2008
Alternate Fuels, Inc. v. Cabanas, No. 06-3794, 07-1462
In an action against Missouri Department of Natural Resources officials claiming denial of equal protection, tortious interference with contract, and First Amendment retaliation, partial summary judgment for defendant on the First Amendment claim and judgment pursuant to jury verdict for plaintiff on the tortious-interference claim are affirmed where: 1) plaintiff had no standing to assert the First Amendment claim; 2) defendant's motions for judgment as a matter of law could not be the basis of an appeal; 3) the district court properly refused defendant's "official duties" and "official immunity" instructions; and 4) the district court had subject matter jurisdiction over the tortious-interference claim.
U.S. 9th Circuit Court of Appeals, August 22, 2008
Bull v. City & County of San Francisco, No. 05-17080, 06-15566
An order denying qualified immunity in an 42 U.S.C. section 1983 class action suit is affirmed where, under the circumstances of this case, San Francisco's blanket policy of strip searching without reasonable suspicion of all individuals arrested and classified for housing in the general jail population violated the arrestees' clearly established constitutional rights.
U.S. 11th Circuit Court of Appeals, August 22, 2008
US v. Diaz, No. 06-13782
Conviction for armed bank robbery, use of a firearm during a crime of violence, and possession of a firearm by a convicted felon is vacated and remanded where defendant did not knowingly waive his right to a jury trial.
U.S. 11th Circuit Court of Appeals, August 22, 2008
Danley v. Allen , No. 07-12328
In claim against jailers at county detention center for excessive force and deliberate indifference in violation of the Fourteenth Amendment, denial of defendants' motions to dismiss on qualified immunity grounds is affirmed where: 1) plaintiff has established the necessary causal connection to hold defendants liable in their supervisory capacities; and 2)"there is no room for qualified immunity" in Eighth and Fourteenth Amendment excessive force cases because they require a subjective element that is "so extreme" that no reasonable person could believe that his actions were lawful.
U.S. D.C. Circuit Court of Appeals, August 22, 2008
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. , No. 07-5127
In a facial challenge to the constitutionality of Title I of the Sarbanes-Oxley Act, asserting that it violates the Appointments Clause and separation of powers because it does not permit adequate presidential control of the Public Company Accounting Oversight Board, summary judgment for defendants is affirmed where: 1) Sarbanes-Oxley does not encroach upon the appointment power because, in view of the Securities and Exchange Commission's (SEC) comprehensive control of the Board, Board members are subject to direction and supervision of the SEC and thus are inferior officers not required to be appointed by the President; and 2) the for-cause limitations on the SEC's power to remove Board members and the President's power to remove Commissioners do not strip the President of sufficient power to influence the Board, and thus do not contravene separation of powers. ..
Supreme Court of California, August 18, 2008
N. Coast Women's Care Med. Group, Inc., No. S142892
The rights of religious freedom and free speech, as guaranteed in both the federal and the California Constitutions, do not exempt a medical clinic's physicians from complying with the California Unruh Civil Rights Act's prohibition against discrimination based on a person's sexual orientation. .
California Appellate Districts, August 19, 2008
Zumbrun Law Firm v. California Legislature, No. C054832
Denial of declaratory and injunctive relief for plaintiff is affirmed where: 1) the contract for the Capitol Park Safety and Security Improvement Project (Capitol Project) did not violate the separation of powers doctrine of article III, section 3 of the Constitution because the Legislature retains power necessary to its lawmaking functions, including the power to protect the safety and security of the Legislature; 2) the Legislature did not delegate this function to the Department of General Services when it created the Department to provide management and technical services for the state; and 3) the Legislature is not bound by the competitive bidding requirements of the State Contract Act, and the documents sought are exempt from discovery under LORA and the Constitution.
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. 1st Circuit Court of Appeals, August 21, 2008
US v. Brandao, No. 07-1215
Conviction and sentence for counts under Racketeer Influenced and Corrupt Organizations statute (RICO) and Violent Crimes in Aid of Racketeering statute (VICAR) is affirmed over defendant's challenges regarding: 1) sufficiency of evidence that the government presented at trial on each of the elements of RICO and VICAR; and 2) a constructive amendment of the indictment via the jury instructions and the standard of prejudice that will be applied to his unpreserved claim of error. .
U.S. 1st Circuit Court of Appeals, August 21, 2008
US v. Lipscomb, No. 07-1293
"Conviction for possession with intent to distribute cocaine, possession of a gun in furtherance of a drug trafficking crime, and possession of a gun as a convicted felon is affirmed where: 1) defendant actively disowned any interest in any of the items seized thus he lack the expectation of privacy required to challenge the seizure of the crack cocaine and gun; 2) defendant failed to timely appeal magistrate judge's ruling regarding court's decision to deny his request for disclosure of a confidential informant; 3 )the district court did not abuse its discretion in overruling defendant's Rule 16 notice requirement objection; 4) defendant failed to establish any independent and material ground for admitting the testimony and evidence regarding the license plate; 5) a reasonable jury could have found defendant guilty beyond a reasonable doubt; 6) the court did not abuse its discretion in denying the motion for a new trial on the basis of this unfiled motion; and 7) the court p! roperly denied defendant's motion for a new trial. Sentence is remanded for resentencing in light of new case law."
U.S. 1st Circuit Court of Appeals, August 21, 2008
US v. Pimentel, No. 07-1512
"Conviction for conspiracy to import with intent to distribute drugs into the US is affirmed over claims that the court erred in accepting his plea because there was no factual basis for it."
U.S. 1st Circuit Court of Appeals, August 21, 2008
US v. McKenzie, No. 07-1834
Sentence of forty-two months' imprisonment for distribution of cocaine base is affirmed over claims of error that: 1) district court incorrectly assigned two points to her Criminal History Category (CHC) score, thus rendering her ineligible for safety-valve relief under 18 U.S.C. section 3553(f); and 2) district court improperly credited computerized docket reports showing her past convictions.
U.S. 2nd Circuit Court of Appeals, August 18, 2008
US v. Valentine, No. 06-5648
In a criminal proceeding in which defendant plead guilty to being a felon in possession of a firearm, denial of defendant's motion to suppress evidence seized in his apartment after his arrest and from the sentence imposed after defendant pleaded guilty, is vacated and remanded where defendant's arrest was not supported by probable cause.
U.S. 2nd Circuit Court of Appeals, August 21, 2008
US v. Amato , No. 06-5600, 06-5741, 07-2152, 07-2311
Convictions and sentences for series of frauds against several states and a corporation are affirmed over claims that the district court erred by: 1) refusing to grant a new trial based on the government's alleged withholding of impeachment material and newly discovered exculpatory evidence; 2) refusing to sever defendants' trials; 3) improperly instructing the jury as to the meaning of "false statements" and "fraudulent omissions,"; 4) preventing the defense from fully cross-examining prosecution witnesses; and 5) allowing the prosecution to display photographs of the conspirators during closing arguments. Restitution order for $12.8 million is affirmed.
U.S. 2nd Circuit Court of Appeals, August 21, 2008
US v. Mundy, No. 06-1190
Conviction for possession of marijuana with intent to distribute and possessing a firearm in the furtherance of a drug crime is affirmed over claim that court erred in refusing to instruct the jury that the attempted flight of co-defendant supported an inference of defendant's consciousness of guilt.
U.S. 3rd Circuit Court of Appeals, August 19, 2008
US v. Soto, No. 07-2643
Conviction for aiding and abetting the making of false statements to a federal firearms licensee is affirmed over objections that: 1) the evidence was insufficient to support the conviction; 2) the question of whether the forms filled out by the alleged principal as required by the licensee, on which she had allegedly lied, were statutorily-required records was a jury question; and 3) even if the record-keeping question was a question of law, the forms in question were not required records. .
U.S. 3rd Circuit Court of Appeals, August 20, 2008
Bond v. Beard , No. 06-9002, 06-9003
In a capital-murder case, denial of petition for habeas relief as to defendant's conviction, and grant of relief as to his death sentence, are affirmed where: 1) defendant's Batson claim had been fully considered and properly rejected by state courts; 2) prosecutor's Bruton violations, in which he identified defendant as the party named in a co-defendant's confession, were harmless error; 3) jury instructions were proper; but 4) defendant's counsel for the penalty phase performed inadequately by failing to investigate fully defendant's background and mental health, and defendant was prejudiced by this failure.
U.S. 4th Circuit Court of Appeals, August 19, 2008
US v. Henry , No. 07-4578, 07-4587
Denial of defendants' motions to dismiss their indictment related to marijuana growing is reversed, and their convictions and sentences vacated and remanded where the continuance of trial for 103 days could not be excluded from defendant's speedy trial clock, which caused the total delay in defendant's case to exceed the seventy days allowed by the Speedy Trial Act.
U.S. 4th Circuit Court of Appeals, August 20, 2008
US v. Branch, No. 06-4257
Conviction and sentence for drug- and firearm-related offenses is affirmed where: 1) there was no question that the police were allowed to detain defendant after witnessing him commit a traffic violation; and 2) during this detention the police formed a "reasonable suspicion" of ongoing criminal activity that justified extension of the traffic stop; and 3) defendant's other claims were without merit.
U.S. 5th Circuit Court of Appeals, August 19, 2008
US v. Bonin, No. 07-30827
In a case involving an individual previously arrested for making threats to country music singer George Strait and later for threats to a magistrate judge, an order committing defendant to the custody of the Attorney General pursuant to a dangerousness determination is vacated and remanded where the determination contravened the requisite statutory procedure. .
U.S. 5th Circuit Court of Appeals, August 19, 2008
US v. Duhon, No. 05-30387
On remand from the Supreme Court, sentence of probation for possessing child pornography is affirmed over the government's objections that: 1) the district court's failure to apply enhancements requested by the government was reversible error; 2) consideration of the disparity between defendant's and co-defendant's sentences was plain error; 3) the sentencing guidelines precluded sentencing defendant to probation; and 4) the sentence was substantively unreasonable.
U.S. 6th Circuit Court of Appeals, August 18, 2008
US v. Simpson, No. 07-5840
A sentence and order of restitution imposed for defendant's crime of mail fraud, involving his underreporting of payroll information for his businesses to his workers' compensation insurance carriers, is affirmed where the district court correctly concluded that the "loss" caused by this conduct was the amount of additional premiums that the insurance carriers would have charged had they been given accurate information.
U.S. 6th Circuit Court of Appeals, August 18, 2008
US v. Alexander, No. 07-3219
Denials of a motion to suppress evidence underlying defendant's plea of guilty to drug-related charges, as well as a motion to compel discovery of certain materials, are affirmed over claims that: 1) an officer had no basis for subjecting a package to extra scrutiny at an airport mail facility; 2) although concededly the package would inevitably have been discovered, defendant's alleged beating at the hands of an officer should preclude application of the inevitable discovery doctrine; and 3) the district court erred in refusing to compel discovery because Fed. R. Crim. P. 26.2 and 16(a)(1)(F) mandate discovery of statements and polygraph results, respectively.
U.S. 6th Circuit Court of Appeals, August 18, 2008
Jells v. Mitchell, No. 02-3505
Denial of a petition for habeas relief in a death penalty case is reversed where: 1) a state court applied the Strickland standard in an objectively unreasonable manner for purposes of claims that petitioner's counsel were ineffective in preparing for the sentencing phase of his trial; 2) the state court unreasonably determined that the alleged errors of trial counsel did not prejudice petitioner's case; and 3) a state court erroneously evaluated a Brady claim. .
U.S. 6th Circuit Court of Appeals, August 19, 2008
US v. Mastromatteo, No. 06-2349
Denial of defendant's motion for a Franks hearing and his sentence for drug-related offenses are affirmed where: 1) defendant's failure to obtain a written conditional plea was not a jurisdictional bar to the circuit court's hearing the appeal; 2) the district court did not err in holding that defendant lacked standing to contest a search of certain property; 3) even if he had standing, the denial of a Franks hearing was proper; and 4) the sentence was reasonable.
U.S. 6th Circuit Court of Appeals, August 20, 2008
US v. Djoumessi, No. 07-1740
Convictions for holding someone in involuntary servitude and for harboring an alien for private financial gain are affirmed over claims that the charges violated defendant's rights under the Double Jeopardy Clause and that the government failed to support the involuntary servitude conviction (and a related conspiracy conviction) with sufficient evidence.
U.S. 6th Circuit Court of Appeals, August 21, 2008
US v. Poole, No. 07-3694
Defendant's convictions and sentences for drug related offenses are affirmed, but the matter remanded for consideration of whether defendant was entitled to a reduction of sentence under 18 U.S.C. section 3582(c). .
U.S. 6th Circuit Court of Appeals, August 21, 2008
US v. Mayberry, No. 06-2239, 06-2413
Defendants' convictions and sentences for being felons in possession of a firearm are affirmed over meritless claims that: 1) one defendant was deprived of his Fifth Amendment rights when the prosecution introduced evidence demonstrating that he possessed firearms during multiple armed robberies; 2) insufficient evidence existed to support his conviction; 3) he was denied his Sixth Amendment right to confront a witness; 4) the district judge unconstitutionally made findings of fact at sentencing; and 5) the sentence was unreasonable.
U.S. 7th Circuit Court of Appeals, August 18, 2008
Malone v. Walls, No. 06-3235
In a first-degree murder case, denial of habeas relief is reversed and remanded where: 1) an ineffective assistance of counsel claim was not procedurally defaulted; 2) counsel's failure to call a potentially exculpatory witness at trial was prejudicial; and 3) a remand was necessary to determine whether counsel's cumulative errors constituted ineffective assistance. .
U.S. 7th Circuit Court of Appeals, August 18, 2008
Grieveson v. Anderson, No. 05-4681
In a 42 U.S.C. section 1983 suit claiming that plaintiff was beaten by other inmates and that his safety and medical needs were neglected by jail staff while plaintiff was a pretrial detainee, summary judgment for defendants is affirmed in part and reversed and remanded in part where: 1) dismissal of defendant-city did not effectuate the dismissal of defendants-county employees; 2) plaintiff failed to present evidence to support his claims against defendants in their official capacity demonstrating that defendants had acted pursuant to an official custom or policy; 3) with respect to all but one of his claims of deliberate indifference to safety needs, plaintiff did not demonstrate that individual defendants knew of risks to plaintiff's safety posed by other inmates; and 4) genuine issues of material fact existed as to whether individual defendants were deliberately indifferent to plaintiff's medical needs, and as to whether defendants could be held liable on a state-law neg! ligence claim.
U.S. 7th Circuit Court of Appeals, August 19, 2008
US v. Clark, No. 07-1297
Amended judgment correcting a sentence for possessing and conspiring to possess cocaine with intent to distribute is affirmed where: 1) a mandatory minimum sentence was statutorily required, and the sentencing court was required to invoke Fed. R. Crim. P. 35(a) to correct its initial imposition of a lesser sentence; and 2) judge-found facts based on a preponderance of the evidence standard were sufficient to determine the drug quantity.
U.S. 7th Circuit Court of Appeals, August 19, 2008
US v. Carter, No. 07-2438
Sentence for tax fraud, money laundering, and engaging in illicit monetary transactions is affirmed over the government's objections as to: 1) findings based on defendant's age that she was unlikely to commit future crimes; 2) a finding that defendant's offenses were not typical money-laundering offenses; and 3) several other mitigating circumstances found pursuant to consideration of the 18 U.S.C. section 3553(a) factors.
U.S. 7th Circuit Court of Appeals, August 20, 2008
US v. Cannon, No. 06-3461
Conviction and sentence for distributing crack cocaine are affirmed over objections that: 1) there was insufficient evidence to convict given the failure of recording equipment that was to audiotape the drug transaction; 2) deposition testimony of an unavailable witness used against defendant was prejudicial and violated defendant's Sixth Amendment rights; and 3) the judge used a preponderance of the evidence standard to find drug quantities that subjected defendant to a mandatory minimum sentence.
U.S. 7th Circuit Court of Appeals, August 20, 2008
US v. Reed, No. 07-2077
Convictions for being a felon and a drug user in possession of a firearm are affirmed over claims that: 1) consent to search defendant's residence given by a co-tenant was invalid; and 2) a proposed jury instruction was improperly denied.
U.S. 7th Circuit Court of Appeals, August 20, 2008
US v. Vinyard, No. 07-2304, 07-2674
Vacatur of defendant's guilty plea and sentence for manufacturing, possessing, and possessing with intent to distribute methamphetamine is vacated, and writ of mandamus issued ordering reinstatement of that sentence, where: 1) jeopardy had attached at sentencing, creating the possibility of a double-jeopardy challenge if the government subjected defendant to a new trial and therefore making the normal appeal process an inadequate remedy; 2) release of defendant pending re-trial, and the possibility of acquittal at a second trial, constituted irreparable harm; 3) the district court erred in applying Fed. R. Crim. P. 35(a) to correct its own alleged errors in sentencing defendant; and 4) the district court violated Fed. R. Crim. P. 11(e) by setting aside defendant's guilty plea.
U.S. 7th Circuit Court of Appeals, August 20, 2008
US v. Hicks, No. 07-3613
In a prosecution for being a felon in possession of a firearm and possession of a firearm not registered to defendant, denial of a motion to suppress is vacated and case remanded where: 1) defendant did not object to a search of his home by police; 2) defendant was not removed from the home for the specific purpose of preventing him from objecting to a search; 3) defendant's girlfriend freely and voluntarily consented to the search; but 4) further factfinding was required to determine if officer's statement to girlfriend that he would get a warrant if consent was not given was based on a reasonable belief that he could, in fact, obtain a warrant. .
U.S. 7th Circuit Court of Appeals, August 21, 2008
US v. Carson, No. 07-2944
Sentence for conspiring to transport a minor across state lines for the purpose of unlawful sexual activity and interstate travel to engage in illicit sexual conduct is affirmed where, for purposes of applying a sentencing enhancement, the minor victim was properly determined to be in defendant's custody, care, or supervisorial control, despite argument that the victim's mother's presence gave her sole custody and control.
U.S. 7th Circuit Court of Appeals, August 21, 2008
Wozny v. Grams, No. 07-3700
Denial of habeas relief to petitioner convicted of sexual assault of children is affirmed over claims that his pleas were not knowing and voluntary, where: 1) petitioner's pleading no contest and apologizing to his victims were admissions of guilt; 2) the record indicated that petitioner was aware of the elements of his crimes when he entered his plea; and 3) the limited time afforded petitioner prior to trial to agree to the pleas did not make them involuntary. ..
U.S. 7th Circuit Court of Appeals, August 21, 2008
Wheeler v. Lawson, No. 07-1791
In a 42 U.S.C. section 1983 suit alleging that defendant-sheriff's officer unlawfully arrested plaintiff without probable cause for maintaining a common nuisance, summary judgment for defendant is affirmed where: 1) defendant could not demonstrate that plaintiff had knowledge that her garage was being used to manufacture methamphetamine, and so lacked probable cause to arrest plaintiff; but 2) defendant was entitled to qualified immunity on the basis that a reasonable officer could have believed that probable cause existed.
U.S. 7th Circuit Court of Appeals, August 22, 2008
US v. Burgos, No. 06-4091
Conviction for illegal reentry following deportation is affirmed where: 1) an alien's warrant of deportation and certificate of nonexistence of record are nontestimonial business records not subject to the requirements of the Confrontation Clause, and may be used at trial by the government to prove its case; and 2) there was no error in the denial of defendant's motion for new counsel on the morning of trial.
U.S. 9th Circuit Court of Appeals, August 18, 2008
US v. Jaeger, No. 06-30621, 06-30622
Defendant's conviction for drug- and firearms-related offenses is affirmed where: 1) the district court did not prevent defendant's wife from testifying, did not threaten her, did not coerce her, did not substantially interfere with her decision whether to testify, and did not drive her off the stand; 2) the court merely provided the witness with information and access to her counsel once it became aware of possible self-incrimination and 3) thus, its admonition to the wife did not violate defendant's Sixth Amendment rights. ..
U.S. 9th Circuit Court of Appeals, August 19, 2008
Stoltie v. Tilton, No. 07-56079
The circuit court affirms the district court's decision, and adopts its opinion in Stoltie v. California, 501 F. Supp.2d 1252 (C.D. Cal. 2007), except for one section as to which it expresses no view, where: 1) the state appellate court misunderstood the confused and confusing explanation of reasonable doubt provided to the jury by the trial judge; and 2) this error led it to apply clearly established Supreme Court law regarding reasonable doubt in an unreasonable manner.
U.S. 9th Circuit Court of Appeals, August 20, 2008
US v. Hernandez-Orellana, No. 06-50584, 06-50620
Convictions for alien smuggling-related offenses are affirmed in part, reversed in part, and the sentences vacated and remanded where: 1) a reasonable jury could have determined that two defendants participated in a conspiracy to bring aliens from Mexico Mexico to the United States for financial gain in violation of federal laws; but 2) the en banc decision in United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007), decided during the pendency of this case compelled the reversal of their convictions on substantive "bringing to" counts.
U.S. 9th Circuit Court of Appeals, August 21, 2008
McMurtrey v. Ryan, No. 03-99002, 03-99009
In a pre-AEDPA case, grant of habeas corpus relief in a death penalty case is affirmed where: 1) there was substantial evidence, particularly by the time of sentencing, to suggest that petitioner's due process rights were violated when the state trial court failed to hold a hearing to determine whether he was competent to stand trial and be sentenced; and 2) this violation was not cured by a subsequent hearing thirteen years after trial.
U.S. 9th Circuit Court of Appeals, August 21, 2008
US v. Craighead, No. 07-10135
In a case addressing the question of under what circumstances under the Fifth Amendment does an interrogation by law enforcement officers in a suspect's own home turn the home into such a police-dominated atmosphere that the interrogation becomes custodial in nature and requires Miranda warnings, the court identifies four relevant factors: 1) the number of law enforcement personnel and whether they were armed; 2) whether the suspect was at any point restrained, either by physical force or by threats; 3) whether the suspect was isolated from others; and 4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made.
U.S. 9th Circuit Court of Appeals, August 21, 2008
Ngo v. Woodford, No. 03-16042
In a prisoner's civil rights suit on remand from the Supreme Court, dismissal of the suit is affirmed where prisoner failed to exhaust his administrative remedies for purposes of the Prison Litigation Reform Act (PLRA).
U.S. 9th Circuit Court of Appeals, August 22, 2008
US v. Easterday, No. 07-10347
A conviction for willful failure to pay over employee payroll taxes is affirmed where: 1) US v. Poll, 521 F.2d 329 (9th Cir. 1975), is no longer good law; 2) willfulness does not require the government to prove that a defendant had the ability to meet his tax obligations; 3) thus, the district court's refusal to give a Poll instruction to the jury and the instruction it did give on willfulness were proper; and 4) for similar reasons, the district court did not abuse its discretion in refusing to admit evidence proffered by defendant in order to show how and why he spent money owed to the IRS to pay other business expenses.
U.S. 9th Circuit Court of Appeals, August 22, 2008
Bull v. City & County of San Francisco, No. 05-17080, 06-15566
An order denying qualified immunity in an 42 U.S.C. section 1983 class action suit is affirmed where, under the circumstances of this case, San Francisco's blanket policy of strip searching without reasonable suspicion of all individuals arrested and classified for housing in the general jail population violated the arrestees' clearly established constitutional rights.
U.S. 10th Circuit Court of Appeals, August 18, 2008
US v. Contreras, No. 07-2145
A bank robbery conviction and life sentence is affirmed where: 1) a probation officer's testimony, which identified defendant as the robber from surveillance footage, was helpful to the jury and thus complied with Rule 701 of the Federal Rules of Evidence because she identified him based on her prior familiarity with his appearance; 2) her testimony also complied with Rule 403 and the Sixth Amendment because he had wide latitude to cross-examine the officer as he saw fit; and 3) a sentencing challenge was squarely foreclosed.
U.S. 10th Circuit Court of Appeals, August 19, 2008
US v. Torres-Romero, No. 07-1421
A sentence for illegally reentering the United States following a prior deportation is affirmed where the district court did not err in its application of a sixteen-level enhancement pursuant to U.S.S.G. section 2L1.2(b)(1)(A) because defendant's 1990 Colorado guilty plea admitted all of the material facts in the charging information, including that he distributed and sold a controlled substance. .
U.S. 10th Circuit Court of Appeals, August 19, 2008
US v. Farr, No. 07-6187
A conviction for tax fraud is reversed where during trial the government constructively amended the indictment against her, trying her not just for the crime described in the indictment (failure to pay quarterly employment taxes for a medical clinic) but also for a separate and additional offense (failure to pay a trust fund recovery penalty assessed against her personally). The circuit court does, however, reject a claim that there was insufficient evidence in the record to sustain her conviction, and that consequently she could not be subjected to retrial under a lawful indictment. .
U.S. 10th Circuit Court of Appeals, August 20, 2008
US v. Gallant, No. 07-1344, 07-1391
Two defendants' convictions for a variety of fraud-related crimes arising from and related to the operation of a credit card portfolio financed by an FDIC insured bank are affirmed with the exception of two counts, and all four defendants' sentences are vacated and remanded where the district court: 1) made erroneous Guidelines calculations, particularly with respect to amount of loss calculations; and 2) erred in holding that an individual and an entity were not victims under the MVRA, and therefore not entitled to restitution. .
U.S. 10th Circuit Court of Appeals, August 20, 2008
US v. Trujillo, No. 07-2233
An appeal challenging a sentence being a felon in possession of firearms and ammunition, entered following a plea agreement wherein defendant agreed not to appeal his sentence, is dismissed where the government complied with the plea agreement, and consequently the appeal waiver was enforceable. .
U.S. 10th Circuit Court of Appeals, August 20, 2008
US v. Villa-Vazquez, No. 07-3160
Absent extraordinary circumstances, once a defendant's guilty plea has been accepted by the court, the government is bound by its plea-agreement promises regarding sentencing recommendations even if the plea agreement has not yet been accepted by the court, and even if it is ultimately rejected by the court. A sentence pursuant to a plea to illegal reentry after deportation for an aggravated felony is reversed and remanded for resentencing before a different judge where: 1) the government was bound by a plea agreement after defendant's guilty plea was accepted by the court; and 2) it blatantly violated its promises under the agreement. .
U.S. 10th Circuit Court of Appeals, August 21, 2008
US v. Jarvi, No. 07-3200
Denial of a motion to suppress evidence in a prosecution for possessing, with intent to distribute, methamphetamine is affirmed where, for purposes of the "fruit of the poisonous tree" doctrine, defendant failed to demonstrate a "factual nexus" between a violation of his own Fourth Amendment rights in a search of his truck, and the discovery of the challenged drugs found in his house. His sentence is vacated and remanded where his right to allocution was violated. ...
U.S. 11th Circuit Court of Appeals, August 18, 2008
US v. Benbow, No. 07-10560
Conviction for conspiracy to possess with intent to distribute cocaine is reversed and remanded where, because all of the sellers were official or unofficial agents for the government, they could not be co-conspirators.
U.S. 11th Circuit Court of Appeals, August 18, 2008
Holland v. State of Florida, No. 07-13366
Denial of a petition for writ of habeas corpus for death row petitioner is affirmed where: 1) the petition was filed beyond the one-year limitations period provided by 28 U.S.C. section 2244(d)(1); and 2) there was no reversible error in court's district dismissal of petition.
U.S. 11th Circuit Court of Appeals, August 19, 2008
US v. Vega-Castillo, No. 07-12141
Sentence of 70 months for reentering the United States illegally after having been deported or removed is affirmed over claims of error that prior precedent, which "does not require the district court to depart based on the availability of the [fast-track] departure", was overruled by Kimbrough.
U.S. 11th Circuit Court of Appeals, August 20, 2008
Jones v. Walker, No. 04-13562
Denial of a petition for writ of habeas corpus from a conviction for felony murder and cruelty to a child is affirmed where petitioner failed to meet his burden of proving the waiver to his Sixth Amendment to counsel was unknowing.
U.S. 11th Circuit Court of Appeals, August 20, 2008
US v. Garey, No. 05-14631
In a case involving unsuccessful attempts to extort money by threatening to bomb various buildings in the state, conviction for multiple felony counts is affirmed where: 1) defendant's waiver of his Sixth Amendment right to counsel was knowing and voluntary; and 2) the trial court did not err by allowing defendant to represent himself at trial. ..
U.S. 11th Circuit Court of Appeals, August 22, 2008
US v. Diaz, No. 06-13782
Conviction for armed bank robbery, use of a firearm during a crime of violence, and possession of a firearm by a convicted felon is vacated and remanded where defendant did not knowingly waive his right to a jury trial.
Supreme Court of California, August 18, 2008
People v. Chance, No. S145458
In a case involving the "present ability" element of the crime of assault, the California Supreme Court rules that it is a defendant's action enabling him to inflict a present injury that constitutes the actus reus of assault. There is no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay. .
Supreme Court of California, August 22, 2008
In re Lawrence, No. S154018
The California Supreme Court rules that, because the core statutory determination entrusted to the Board of Parole Hearings and the governor is whether an inmate poses a current threat to public safety for purposes of suitability for parole, the standard of review of such decisions is properly characterized as whether "some evidence" supports a conclusion that the inmate is unsuitable for parole because he or she currently is dangerous. Moreover, with regard to the aggravated circumstances of a commitment offense, to the extent certain decisions have been read to imply that a particularly egregious commitment offense will always provide the requisite modicum of evidence supporting the Board's or governor's decision, this assumption is inconsistent with the statutory mandate that the Board and the governor consider all relevant statutory factors when evaluating an inmate's suitability for parole, and inconsistent with the inmate's due process liberty interest in parole. .
Supreme Court of California, August 22, 2008
In re Shaputis, No. S155872
Denial of habeas relief from a decision denying petitioner parole is affirmed where "some evidence" in the record supported the governor's conclusion that petitioner remains a threat to public safety in that he has failed to take responsibility for the murder of his wife, and despite years of rehabilitative programming and participation in substance abuse programs, has failed to gain insight into his previous violent behavior, including the brutal domestic violence inflicted upon his wife and children for many years preceding the commitment offense. .
California Appellate Districts, August 19, 2008
People v. Meneses, No. A113017
Conviction and sentence for crimes related to defendant's participation in a scheme to defraud insurance companies is affirmed over claims of error regarding: 1) whether the court, on its own initiative (sua sponte), should have provided certain instructions to the jury; 2) prosecutorial misconduct; 3) whether the court should have sanitized a prior conviction for conspiring to forge immigration documents, by eliminating all reference to conspiracy when the prosecutor impeached defendant's credibility as a felon; 4) insufficiency of the evidence; and 5) ineffective assistance of counsel.
California Appellate Districts, August 19, 2008
P. v. Wyatt, No. C056249
An aggregate sentence of 50 years for possessing paraphernalia and possessing or manufacturing a weapon while in jail is affirmed where trial court did not abuse its discretion in failing to strike one or both of defendant's prior strike convictions.
California Appellate Districts, August 20, 2008
Piscitelli v. Salesian Society, No. B195450
In a negligence action against defendant-Salesian Society for failing to protect plaintiff from childhood sexual abuse at the hands of one of defendant's priests, judgment against defendant is affirmed where, if it is relevant to the issue, a witness may be impeached by evidence of a prior conviction in order to show bias, without regard to the nature of the underlying crime as it relates to the character traits of honesty and truthfulness.
California Appellate Districts, August 21, 2008
In re Arthur V., No. D052215
Conviction of juvenile for assault by means of force likely to produce great bodily harm, assault with a deadly weapon, and felony vandalism is affirmed where, under People v. Bailey, juvenile's criminal acts permissibly could be aggregated into a single felony offense.
Among the issues of public concern with a philosophical dimenion addressed in some of the articles published in Philosophy & Public Affairs are matters related to criminal law and justice.:
"Issues of public concern often have an important philosophical dimension. Philosophy & Public Affairs is published in the belief that a philosophical examination of these issues can contribute to their clarification and to their resolution. It welcomes philosophical discussion of substantive legal, social, and political problems, as well as discussions of the more abstract questions to which they give rise. In addition, it aims to publish studies of the moral and intellectual history of such problems. Philosophy & Public Affairs is designed to fill the need for a venue in which philosophers with different viewpoints and philosophically inclined writers from various disciplines-including law, political science, economics, and sociology-can bring their distinctive methods to bear on problems that concern everyone".
Here is a sample of articles pubished:
Legal Moralism and the Harm Principle: A Rejoinder
Arthur Ripstein
35:2 (Spring, 2007)
Recent Thinking about Sexual Harassment: A Review Essay
Elizabeth Anderson
34:3 (Summer, 2006)
Avoiding Paternalism
Peter De Marneffe
34:1 (Winter, 2006)
The Nature of Rights
Leif Wenar
33:3 (Summer 2005)
The Difference Uniforms Make: Collective Violence in Criminal Law and War
Christopher Kutz
33:2 (Spring, 2005)
Racial Profiling
Mathias Risse and Richard Zeckhauser
32:2 (Spring, 2004)
Here are some questions and responses about Twitter. I have followed the usual practice of deleting any personal information about any of the respondents. That being said I have already found these responses very useful and would like to share them with readers of this blog.
David Badertscher
QUESTIONS: :
What is Twitter? What does it do? How can one use it in a workday enviornment? Should one use it in a workday environment?
RESPONSES:
Twitter is a form of microblogging. And it's free, which is always good. It differs from Instant Messaging in that IM is specific between two people; Twittermessages go out to the world at large. You know what someone is saying by going to their profile page on Twitter but usually by choosing to follow them. Anyone who follows my feed gets everything I send out, whether it's related to serial renewals and OPAC features or links to recipes and Weight Watcher blogs.
Some people make clear distinctions about how they will use a Twitter account - work only, personal life only, or a combination. Mine is a combo but primarily work. Remember that deciding to do a work-only account means that's all you will talk about -- but if you follow me, you will see other things being discussed by seeing my responses to other people. Right now that's mostly reference/electronic services librarians. To see my conversations, check out: http://twitter.com/annemyers
I downloaded a little Firefox Add on called "twitterfox" which lets me monitor tweets from the people I follow while I'm in Firefox. It's my method of choice; there are others, including just keeping a window open to the Twitter site.
Does it take time? Sure, but you can spend as much or as little as you like. One really good way to limit it is to not follow every single person you know. Check their tweets for a while and if they're distracting or not useful, just remove them from your list. I mostly work in Millennium working on serials problems and don't see or worry about tweets while I'm there.
At first most people (including me) put up little things like "Had pizza for lunch" or other statements of fact. After a little practice, though, and seeing how others were using it, I jumped in with comments to the world at large or as replies to specific people. And I've discovered I'm building a little social network that brings me information, makes me giggle, points out interesting links, or simply scrolls by while I work on other things.
How would I use it with [Library] Technical Services people? Maybe tweet something short and sweet such as "Anyone go to the Charleston Conference?" instead of sending it in an email. Tweets are limited to 140 characters so you can't say a lot! It's also good for quick communication with others on the library staff.
I hope this helps a little. I'm still figuring how how Twitter will work for me but so far I just love it and haven't found it taking over my life. I'm saving Facebook for that!
_____________________________________________________
I saw Twitter for the first time at the conference in Portland. I was working at the local arrangement booth and a librarian from [...deleted...] showed it to me. Remember that "Family Reunion" that was going on at the same time in the Convention Center? He asked one of the attendees what it was all about, and then he went on Twitter to post what he learned (it was a direct sales group similar to Amway).
_____________________________________________________
We used Twitter at the SLA conference to report little gems from
sessions and that was great! It was a great learning experience and it
made the conference feel like a community effort. I highly recommend
separating out your work and personal accounts.
______________________________________________________
To see the New York Supreme Court Appellate Division First Department decisions (including index) released on Septermber 26, 2008, click on the links below:
Appeals Index to Slip Opinions
Decisions annonced on 08-26-08
.ADMIRALTY, CIVIL PROCEDURE, CONTRACTS
Williamson v. Recovery Ltd. P'ship, No. 07-0548
"In maritime claim against defendants for alleged nonpayment of contracts, decision in favor of plaintiffs is affirmed where: 1) the contracts between plaintiffs and defendants are maritime contracts; 2) the notice requirements of Rule B were met; 3) equitable factors did not weigh in favor of vacating the maritime attachments; and 4) a Rule 11 hearing was not required.".
..
CONSTITUTIONAL LAW, ELECTIONS, GOVERNMENT LAW
Price v. New York State Bd. of Elections, No. 07-5367
"In a challenge to state law prohibiting the use of absentee ballots in elections for county committee members brought under the First Amendment, grant of summary judgment for defendant state board of elections is reversed where: 1) the arguments proffered by the State are so extraordinarily weak that they cannot justify the burdens imposed by Election Law section 7-122; and 2) the district court therefore erred in granting defendants' motion to dismiss and in denying plaintiffs' motion for summary judgment".
CIVIL PROCEDURE, CONSTITUTIONAL LAW, CONTRACTS, FOOD & BEVERAGES, GOVERNMENT LAW, WHOLESALE
"R" Best Produce, Inc. v. DiSapio, No. 070954
"In a contract dispute brought under the Perishable Agricultural Commodities Act of 1930 (PACA) regarding the sale of fruits and vegetables, order denying reconsideration is vacated and remanded where the appellant's claim that the default judgment should have been vacated for lack of personal jurisdiction raises unresolved factual errors. "
CIVIL PROCEDURE, CONTRACTS, INJURY AND TORT LAW, INSURANCE LAW
Fidelity and Guaranty Ins. Underwriters, Inc. v. Jasam Realty Corp. , No. 06-4738, 06-4741
"In an insurance claims case related to a personal injury action, judgment for plaintiff-insurer is vacated and remanded where: 1) the district court's special verdict form permitted the jury to consider incorrect dates on which the veracity of the alleged misrepresentations could be judged; and 2) the court did not correct the error when invited by the jury to clarify the matter"
CIVIL PROCEDURE, EDUCATION LAW, GOVERNMENT LAW
Fuentes v. Bd. of Education of City of New York, No. 064715p.pdf
"The question of whether a biological and non-custodial parent of a disabled child has standing to sue under the Individuals with Disabilities Act, is certified where plaintiff's standing turns on a question of New York law that has not been addressed by the New York Court of Appeals."
CONSTITUTIONAL LAW, EVIDENCE, IMMIGRATION LAW
Pinto-Montoya v. Mukasey, No. 05-6541
"Petition to review decision affirming removal to Guatemala is denied where the petitioners' contact with plainclothes immigration officials did not constitute a seizure within the meaning of the Fourth Amendment and accordingly, their statements were properly admitted."
.
CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW
"In a criminal law matter, petition for review of decision denying rehearing is denied where the court declined to depart from the literal wording of the "except" clause of 18 U.S.C. section 924(c)(1)(A)."
With all the news and interest in the Democratic National Convention which begins on Monday, we thought that some of you would be interested in seeing, Renewing America's Promise, Report of the Platform Committee for presentation to the 2008 National Convention. It was approved on August 9, 2008. To see the Platform click on the link below:
All four of the Policy Recommendations submitted by the Criminal Justice Section to the ABA House of Delegates were unanimously approved on August 11, 2008. To link to the final versions of each recommendation and audio recordings of the presentations and discussions, click here