Posted On: March 19, 2010

Findlaw Case Law Summaries: Criminal Law and Procedure

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U.S. Supreme Court, March 08, 2010
Bloate v. US, No. 08–728
In a drug and firearm possession prosecution, the Eighth Circuit's order affirming the district court's denial of defendant's motion to dismiss the indictment on Speedy Trial Act grounds is reversed where the time granted to prepare pretrial motions was not automatically excludable from the 70-day limit under 18 U.S.C. section 3161(h)(1), and such time may be excluded only when a district court grants a continuance based on appropriate findings under subsection (h)(7).

U.S. 1st Circuit Court of Appeals, March 11, 2010
Peralta v. US, No. 08-1765
In proceedings involving defendant's pro se motion under 28 U.S.C. section 2255 to vacate his sentence on grounds of ineffective assistance of counsel in connection with his guilty plea, sentencing, and direct appeal, the district court's denial of the motion is affirmed where: 1) the district court did not commit err in finding that defendant was not denied constitutionally effective assistance of counsel; and 2) defendant's other issues outside the certificate of appealability are waived.

U.S. 1st Circuit Court of Appeals, March 11, 2010
US v. Mejia, No. 08-2505
Defendant's conviction and sentence for conspiring to distribute cocaine and possession of a firearm in furtherance of a drug crime are affirmed where: 1) district court did not err in denying defendant's motion to suppress his incriminating statements; 2) defendant's evidentiary claims are rejected as there was no abuse of discretion in admitting any of the evidence; and 3) district court did not abuse its discretion in denying defendant's motion for a new trial.

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Posted On: March 19, 2010

Findlaw Case Summaries: Constitutional Law

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U.S. Supreme Court, March 08, 2010
Milavetz, Gallop & Milavetz, P.A. v. US, No. 08–1119
In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act's (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit's order rejecting the district court's conclusion that attorneys are not "debt relief agencies" under BAPCPA, upholding application of BAPCPA's disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528's requirements were reasonably related to the government's interest in preventing consumer deception. However, the court of appeals' order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advis! ing a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose. .

U.S. 1st Circuit Court of Appeals, March 10, 2010
Foley v. Town of Randolph, No. 09-1558
In plaintiff's 42 U.S.C. section 1983 suit claiming that he was wrongfully retaliated against in violation of his First Amendment rights when he was suspended, as a Chief of the Fire Department, for fifteen days based on public statements he made at the scene of a fatal fire, district court's grant of summary judgment in favor of the defendants is affirmed as, under the circumstances of the press conference in the case, there could be no doubt that plaintiff was speaking in his official capacity and not as a citizen when he addressed budgetary and staffing shortfalls the department.

U.S. 1st Circuit Court of Appeals, March 11, 2010
Peralta v. US, No. 08-1765
In proceedings involving defendant's pro se motion under 28 U.S.C. section 2255 to vacate his sentence on grounds of ineffective assistance of counsel in connection with his guilty plea, sentencing, and direct appeal, the district court's denial of the motion is affirmed where: 1) the district court did not commit err in finding that defendant was not denied constitutionally effective assistance of counsel; and 2) defendant's other issues outside the certificate of appealability are waived

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Posted On: March 19, 2010

Final Showdown on Health Care Legislation Set for This Weekend

House Democrats are reported to be making a final push this weekend to pass health care legislation. To that end a nearly final version of a bill, along with a report on the bill's cost by the Congressional Budget Office, was unveiled yesterday. A final showdown regarding this legislation is expected this Sunday March 21.

As part of our series of postings regarding efforts to overhaul the health care system in the United States we are making the following documents accessible:

03/18/2010 Section-by-Section Summary of the Substitute Amendment to the Reconciliation Act, H.R. 4872

03/18/2010 Text of the Substitute Amendment to the Reconciliation Act, H.R. 4872

03/18/2010 CBO Cost Estimate for the Reconciliation Act, H.R. 4872
CBO Estimate of Direct Spending and Revenue Effects for the Amendment in the Nature of a Substitute Released on March 18, 2010

Posted On: March 18, 2010

NCSC: @ The Center

@ the Center is the flagship e-newsletter of the National Center for State Courts (NCSC). It highlights major projects, publications and conferences related to the work of NCSC.. Even though this newsletter is of redcent vintage (still Volume 1) it has already caught the attention of many in the judiciary. If you are interested in more information click here. Below are highlights of the March 2010 issue.

Volume 1, Issue 6
March 2010

Budget resource center expanded
Interactive maps show extent of cost cutting across the country

Fiscal problems continue to plague state court systems across the country. Cost-cutting measures vary from state to state, and a set of new interactive maps on the National Center for State Courts' Web site helps show which jurisdictions are being forced to make which cuts. This new addition to the Budget Resource Center (BRC) includes information on eight specific strategies adopted by the states, including furloughs, court closures, and hiking filing fees. The BRC is updated regularly with new reports and breaking news. Check back frequently to stay up to date on the latest.

Election experts give online guidance
NCSC adds Web resource center for judicial campaign oversight committees

Just in time for the 2010 elections, the National Ad Hoc Committee on Judicial Campaign Oversight - staffed by the National Center - has launched a new set of Web-based resources to aid those contemplating the establishment of such a committee. Oversight committees encourage fair play and honesty in judicial election campaigns - and also can highlight unfair campaign practices or misleading advertising when campaign rhetoric soars over the top. The new resource center includes video excerpts from presentations and panel discussions; interviews with leaders of judicial campaign oversight committees across the country; and other updated materials and resources, such as sample documents and planning tools based on common and effective practices for oversight committees.

California court leader receives Distinguished Service Award
Thirty-year career marked by service, commitment to quality of justice

Ronald G. Overholt, chief deputy director of the California Administrative Office of the Courts, has received a 2009 Distinguished Service Award, one of the premiere recognitions given by the National Center. During his tenure with the California AOC, Overholt has played a key role in achieving greater financial stability for the California Judicial Branch and has helped build an administrative, technological, and physical infrastructure that will enable the judicial branch to continue providing fair and equal justice despite future fiscal concerns. He also has worked with the Conference of Chief Justices, Conference of State Court Administrators, and National Association for Court Management to provide training sessions on the most recent innovations in court management.

NCSC officials join Lebanese judiciary at courthouse opening
Project includes administration reforms, training for court staff

Less than a year after a project aimed at modernizing the Beirut Judgment Enforcement Court began, the renovated court building was inaugurated during a March 2 ceremony in Beirut, Lebanon. NCSC President Mary C. McQueen and William G. Kaschak, vice president of the National Center's International Programs Division, traveled to Beirut for the ribbon cutting, which was hosted by Lebanese Minister of Justice Ibrahim Najjar. The courthouse renovation is part of a three-year, $8.2 million United States Agency for International Development project that is being implemented by the National Center and includes court administration reform and personnel training.

Free curriculum helps judges reduce number of repeat offenders
Program materials available online

With recidivism rates of felony offenders at unprecedented levels - nearly 60 percent according to a 2009 NCSC and Pew Center on the States report - the National Center has created a curriculum designed to help trial judges develop sentencing practices to reduce the risk of repeat offenders. Recidivism contributes to the escalating cost of state corrections, however, evidence-based sentencing has become a proven method to counter high recidivism levels. Some examples of evidence-based sentencing include focusing corrections resources on medium- and high-risk offenders rather than low-risk offenders who are not likely to reoffend; targeting services to offender characteristics that have been proven to best predict future criminality; and using swift, certain, and graduated sanctions for probation violations. The free model curriculum, titled "Evidence-Based Sentencing to Improve Public Safety and Reduce Recidivism," is available online.

The National Center for State Courts
300 Newport Avenue Williamsburg, Virginia, 23185-4147, USA

Posted On: March 18, 2010

Judicial Conference of the United States Announces Upcoming Changes to PACER

Thanks to Carole Levitt, President of Internet for Lawyers, for alerting us to the "key steps to improve public access to feferal courts by increasing the availability of court openions and expanding the services and reducing the costs for many users of the Public Access to Electronic Court Records (PACER) system".

Below is Carole's e-mail with a link to an Interner for Lawyers newsitem on the topic.The newsitem in turn contains links to both the March `16, 2010 Judicial Conference Press Release and to The Cybersleuth's Guide to the Internet."

March 18, 2010

In a March 16, 2010 press release, the Judicial Conference of the United States announced "key steps to improve public access to federal courts by increasing the availability of court opinions and expanding the services and reducing the costs for many users of the Public Access to Electronic Court Records (PACER) system.

Buried in the press release is news that a "new version of the [US Party/Case Index] search tool, which includes additional search capabilities and result formats, has been developed and will be deployed under the new name PACER Case Locator this month."

There is no indication if this new PACER Case Locator will encompass all courts with a unified search, or continue "as is" with the holes in coverage of the existing US Party/Case Index.

For more details see:

Posted On: March 17, 2010


Posted by : Joni L. Cassidy, Cassidy Cataloguing Services, Inc. 3/17/10


OCLC WorldCat – the union database of bibliographic and authority records contributed by member libraries, the Library of Congress, the National Library of Medicine, the National Agriculture Library, the U.S. Government Printing Office and several other national libraries from around the globe. Records are accessible to all OCLC members. – the version of OCLC WorldCat that is mounted on the Internet and searchable for free.

WorldCat Local – OCLC’s service to replace the online public access catalog (OPAC). It is a direct competitor to the OPAC module of all the high-end integrated library systems, such as Innovative Interfaces’ Millenium, SIRSIDynix Symphony, and Ex Libris’ Aleph and Voyager.



On December 12, 2007, Steven Essig posted to the Criminal Law Library Blog about Cassidy Cataloguing’s MARC21 record sets. He noted:

“UCLA has contracted to receive Lexis and Westlaw [MARC record sets] but hasn't taken possession of them because to move them to their new union catalog requires that all UC holdings be a part of OCLC. At this time, Cassidy [Cataloguing Services] has asked subscribers not to upload the Westlaw or Lexis MARC records to OCLC.”

The reason why was simple: Cassidy’s contractual agreement with its subscribers had to prohibit uploading of records to OCLC because of the transfer of intellectual property rights to OCLC as records enter WorldCat. To illustrate how it works, here is an excerpt from an OCLC agreement for the delivery of MARC records to WorldCat:

OCLC Agreement for the Delivery of Bibliographic Records, Section 2.3 –
“Vendor hereby grants to OCLC, OCLC participants and non-participant users, and OCLC designees, a perpetual, irrevocable, non-exclusive, royalty-free, transferable right to copy, display, publish, prepare derivative works from, distribute and use (including, without limitation, use in forming new compilations of information and loading into WorldCat) Total Records, and any other bibliographic records, holdings and other information supplied to OCLC, during the term of this Agreement with Vendor..."

More than two years later, OCLC and Cassidy Cataloguing Services, Inc. may finally reach a compromise. OCLC may grant permission to allow a WorldCat Local institution that has purchased Cassidy MARC record sets to view the records as part of its WorldCat Local subscription. Another catalog record provider negotiated a deal whereby no other libraries are permitted to view the records, use them for cataloging, or attach holdings to them. Cassidy Cataloguing is trying to negotiate that deal. But, OCLC’s right to load and display these records in WorldCat is still a sticking point.


When OCLC issued the proposed “Policy on the Use and Transfer of WorldCat
Records” on November 4, 2008, they unleashed a perfect storm in their newly dubbed “Information ecosystem.”

In hopes of calming the storm, NYLINK (New York State regional OCLC service center) hosted “Policy for use and transfer of WorldCat records – A moderated discussion” at New York Public Library’s research branch on January 16, 2009. Karen Calhoun, VP for OCLC, was the featured speaker. Her prepared presentation and handouts emphasized that the focus of the new “Policy…” was to expand the rights and flexibility of non-commercial OCLC members while, at the same time, making every effort to curtail any commercial use of WorldCat records.

During Q&A, Ms. Calhoun explained that OCLC was victimized by a commercial cataloging company “somewhere in the world” that downloaded a large portion of the WorldCat database and then used it to support their business. She cited that incident as the reason for OCLC’s aggressive position against commercial use in the new “Policy…” Additional questions regarding legal action against the rogue company, instead of the writing of the new “Policy…,” did not lead to any satisfactory conclusion for the audience.

The final issue to be addressed at NYLINK’s moderated discussion was the creation by OCLC of It is the free, searchable version of the WorldCat database mounted on the Internet. As the spokesperson for OCLC, Ms. Calhoun insisted that overwhelming support from member libraries drove the decision to create this free-to-the-whole-world version of member records. But, several special collection librarians spoke out against having their collections revealed to the public without their explicit permission (i.e. no contract, no release form, no signature on any agreement releasing protected information).

All this negative feedback – the perfect storm in the “Information Ecosystem” – led to the creation of an OCLC Record Use Policy Council. Their recommendations included abandoning the “Policy for use and transfer of WorldCat records” and returning to the 1987 “Guidelines for the use and transfer of OCLC-derived records” while a new policy is being drafted.


How did we get here? Without much fanfare, OCLC strategically absorbed all the other bibliographic utilities in the western world. For the last several years, an institution wanting to be part of a bibliographic utility could join OCLC, or not.

That changed in October 2009, when a new company called SkyRiver launched a bibliographic utility to compete with OCLC. It is accessible at and is the creation of Jerry Kline, the owner and co-founder of Innovative Interfaces, also known as “Innovative” for short.

SkyRiver aims to:
1. Save institutions up to 40% off their costs for bibliographic utility services.
2. Maintain a database built entirely of high-quality MARC records, similar to RLIN.
3. Maintain a database free of duplicate records.
4. Be a focused resource for cataloging, not a “bibliographic superstore.”

SkyRiver is currently populated with bibliographic records from the Library of Congress and the British Library, and it does not intend to lay claim to any of the MARC records added to its database. Institutions contributing records will be free to use them any way they want. [FULL ARTICLE]

In theory, a library that joins SkyRiver for cataloging could continue to be an OCLC member for other services such as interlibrary loan (ILL). The first institution to test this arrangement was Michigan State University (MSU). As a new cataloging member of SkyRiver, MSU expected to drop their cataloging membership with OCLC but pay a fee to upload their holdings periodically for the purpose of ILL. A fee of $0.23 per record appears in OCLC’s current price list. Based on that, MSU expected their annual cost to be in the neighborhood of $6,000.00. Instead, a post on Karen Coyle’s InFormation blog reports that OCLC offered MSU a price of $2.85 per record, or $74,000.00 for an expected 26,000 record upload.

The following article includes the full explanation from OCLC of the charges invoiced to MSU.

MSU was not the only institution misled by the $0.23 per record quote. On her blog Karen Coyle quotes from a letter written by Roman Kochan, Dean and Director of Library Services at the California State University, Long Beach. Plans to accommodate their budget cuts included a switch from OCLC to Skyriver for cataloging, based on the $0.23 per record charge for batch upload posted on the OCLC website.

In the Library Journal article, “OCLC and Michigan State at impasse over SkyRiver cataloging, resource sharing costs,” 2/26/10, SkyRiver President Leslie Straus said, “We certainly expected some sort of nominal and reasonable fee. If we can’t assure potential customers there’s a nominal and published price, it’s problematic.”


Imagine for a moment the opportunity to contribute your institution’s bibliographic records to a spanking clean utility committed to high quality and little to no duplication. SkyRiver could offer that to the law library community, and the chance to be the foundation for a NEW interlibrary loan network based on our own subject specialty: Law. This approach would completely eliminate the need to upload holdings back into OCLC, thereby sidestepping their fee. Coincidentally, Innovative Interfaces already has an ILL service, Link+.
Just imagine the opportunity…

Any views or opinions presented in this posting are solely those of the author, except where specifically attributed to another source.


Posted On: March 16, 2010

FCC Introduces Sweeping National Broaband Plan

Udated March 17, 2010.

On Tuesday March 16, 2010 the U.S. Federal Communications Commission (FCC) announced a proposal to overhaul the U.S. broadband* policy by introducing a plan that would provide higher speed internet access and much faster internet connections thoughout the U.S. than are presently available. The plan sets a goal of connecting 100 million U.S. households to broadband connections of 100 megabits per secondf, at least 20 times faster than most home connections now, by 2020.

The plan also calls for every american conmunity to have at least one "anchor" institution, such as a school, library, or hospital that has ultra high speed internet access. The FCC defines ultra high speed in this eontext as at least a gigabit per second, 10 times faster than the 100 megabit per second envisioned for home connections.

This is a very ambitious initiative whch will almost certainly have a significant impact on the development of library services in the years ahead. All of this bears close watching.

Those who wish to have a more comprehensive overview of the National Broadban Plan should click on the links below to see the Joint Statement on Broadband Policy prepared by the Federal Communications Commission, the Executive Summary prepared by the Federal Communications Commission, or a link to all Chapters of the National Broadband Plan as proposed by the FCC:

Statement on Broadband Policy prepared by FCC

Federal Communications Commission National Broadband Plan, Executive Summary

All Chapters of the Federal Communications Commission National Broadband Plan

* Broadband is a high-speed network connection that makes video delivery possible. Broadband can carry data, voice, TV and video simultaneously over long distances at much higher speeds and in greater quantities than a conventional telephone line. The FCC defines broadband service as data transmission speeds exceeding 200 kilobits per second (Kbps), or 200,000 bits per second, in at least one direction: downstream (from the Internet to the user’s computer) or upstream (from the user’s computer to the Internet).

Posted On: March 11, 2010

New York Lieutenant Governor Richard Ravitch Unveils Five Year Fiscal Reform Plan

On March 10, 2010 New York Lieutenant Governor Richard Ravitch released a fiscal reform plan which calls for a five-year plan to eliminate the State's structural imbalance and introduces a process by which annual budget balance is mandated, minitored and maintained. The plan calls for up to $2 billion in borrowing for the next three years and a financial review board consisting of five members, one each from the Assembly and the State Senate, two appointed by the Governor and one appointed by the New York State Comptroller.:

Ravitch Fiscal Reform Plan- Full Text

Posted On: March 10, 2010

What New Information or Data Would You Like Federal Agencies to Publish Online?

Mary Alice Baish, Director of Government Relations and Emily Feldman, Advocacy Communications Assistant (both of the American Association of Law Libraries, AALL), have been doing a tremendous job serving as advocates for high quality and highly accessible legal information on the web in a format that can be authenticated.

The following is an e-mail from Emily which mentions the work of the White House open government working group and includes a request for suggestions regarding specific types of information and datasets you would like to see agencies publish. Although Emily's e-mail is directed primarily to law librarians I am posting it here because of the value of this initiative to the entire legal community.

FROM: Emily Feldman
March 10, 2010

The White House’s open government working group has held several meetings with stakeholders, including AALL, to develop criteria to measure agency open government plans, which must be published by April 7. At a meeting last Friday, I was pleased to learn that the working group adopted Mary Alice’s suggestion that Executive Branch agencies be evaluated based in part on whether they commit in their plans to publish new information (e.g., reports and publications) on their Web sites, in addition to new high-value datasets in XML on

We’re looking for specific types of information and datasets that you’d like to see agencies publish. The working group is also very interested in any cross-agency datasets you’d like to see added to (e.g., crime data from DOJ/DHS, health data from EPA/HHS).

Some of the suggestions we’ve received so far include:

· All historic content that agencies have digitized (presuming that agencies followed the Paperwork Reduction Act and didn’t make exclusive deals)

· All the legislative histories that have been digitized by the Department of Justice Library

· Dataset on "charges of discrimination" filed from the EEOC

Are there other information holdings or datasets that you’d like to see added? Please email me the title and name of the publishing agency by COB next Wednesday, March 17.



Emily Feldman
Advocacy Communications Assistant
American Association of Law Libraries
25 Massachusetts Avenue, NW, Suite 500
Washington, D.C. 20001


Fax: 202-737-0480

103nd Annual Meeting & Conference / Denver, CO. / July 10-13, 2010

Posted On: March 8, 2010

Once Every Hundred Years?

In an earlier posting on November 5 , 2009 we reported that on November 3, 1909 the criminal court building in Manhattan (bounded by Centre, Lafayette, Franklin, and White Streets) was declared unsafe for human occupancy and everyone in the building at the time was ordered to leave immediately. When the last man was out a squad of thirty policemen took charge of the building, roping it off on all sides and remaining on guard outside the building to forbid anyone to enter or even pass through any of the flanking streets".

On March 2, 2010 for very different reasons the present criminal court building in Manhattan was evacuated due to smoke and water damage caused by an electrical fire in the basement.. When the last people were out, policemen, firemen and court officers took charge of the building and for a time did not permit anyone to enter the building except for business related to coping with the emergency situation..

As noted earlier there were many differences in the two events. By most accounts the old criminal courts building was in very poor condition by 1909. The present Criminal Courts buiilding is perfectly safe and in good condition with lingering smoke and other residual damage from the fire causing the building to remain closed until March 8.

We do not know how the courts, the office of district attorney, and other departments functioned during the evacuation of 1909; but by all accounts work continued quite efficiently during the present evacuation with many working in adjacent buildings and some using computers to work from their homes.

Let's hope we don't have another evacuation during the next one hundred years.

Posted On: March 8, 2010

The Health Care Debate Continues - March 2010

You may have noticed that we have not posted anything about health care for awhile. Other topics have intervened but the health care debate keeps coming back. We are actually glad because for many of us health care reform in the United States is one of the paramount issues of our time.

The New York Times has been doing a good job keeping concerns about helth care alive through its ongong list of articles and editorials telling us what is happening and where they think we might be going. Here are links to a few:


If Reform Fails
Published: March 7, 2010

"There are some basic facts Americans need to know as Congress decides whether to approve comprehensive health reform or continue with what we have."

This editorial is a part of a comprehensive examination {by the New York Times] of the debate over health care reform. You can read all of these editorials at:

Recent Article:

Prescriptions: A Handy Road Map for the Final Weeks
Published: March 8, 2010
With the health care debate in the home stretch, the main action is now in the House.

Posted On: March 8, 2010

Consultant: Oregon County Law Libraries Planning Grant RFP

Oregon County Law Libraries Planning Grant, Request for Proposals

"Summary: The Oregon Council of County Law Libraries (OCCLL), representing 36 county law libraries throughout the state, received a planning grant from the Institute of Museum and Library Services through the LSTA, administered by the Oregon State Library. The OCCLL has administrative responsibility for implementing the grant project. The grant project team seeks the services of a professional library consultant who will guide the OCCLL through the planning process. The general duty of the consultant is to facilitate the accomplishment of project goals and activities".

Oregon Law Libraries RFP Rev4_1

For more information, contact:

Laura J. Orr

Law Librarian

Washington County Law Library

111 NE Lincoln St

Hillsboro, OR 97124

Phone: 503-846-8880

Oregon Legal Research Blog:

Posted On: March 8, 2010

Cyber Crime: A Clear and Present Danger

The 2010 CyberSecurity Watch Survey, sponsored by Deloitte and conducted in collaboration with CSO Magazine, the U.S. Secret Service, and the CERT Coordination Center at Carnegie Mellon, indicates that threats posed by cyber crime have increased faster than potential victims -- or cyber security professionals -- can cope with, placing targeted organizations at significant risk.

While we cannot provide you a copy of the actual Survey, the Deloitte whitepaper, Cyber Crime: A Clear and Present Danger reports on several of the survey findings and includes Deloitte's interpretation of key results. Quoting from the Introduction to the white papter: "By its very nature, interpretation goes beyond simple reporting of results...and may prompt disagreement and even controversy"

With that, we invite you to download the white paper from the link below, read it, and draw your own conclusions

Cyber Crime: A Clear and Present Danger

David Badertscher