August 16-20, 2010.

United States First Circuit, 08/17/2010
US v. Donath
Defendant's appeal of his conviction for his participation in a conspiracy to distribute cocaine and other drugs and a below-guidelines sentence of 90-months' imprisonment is dismissed as defendant's waiver of his right to appeal his plea or sentence if it did not exceed 120 months as part of his plea agreement is enforceable and his argument that district court's error in calculating his sentence by mischaracterizing his prior crimes constituted a miscarriage of justice is meritless.

United States First Circuit, 08/17/2010
Grant v. Warden, Maine State Prison
District court's denial of defendant's request for habeas relief from his murder conviction of his mother-in-law is affirmed where: 1) the Maine Supreme Judicial Court's (SJC) application of the general standard announced in Mosley to the particular facts of defendant's case falls within the broad limits of reasonableness; and 2) regardless of whether the SJC described its analysis as a "totality of the circumstances" test or a four-factor test, its conclusion was not an unreasonable application of Mosley.

United States Second Circuit, 08/16/2010
Friedman v. Rehal
In a sexual abuse prosecution, the denial of petitioner's habeas petition is affirmed where: 1) the fact that hypnosis may have been used to stimulate alleged victims' memory recall and potentially induce false memories of abuse was a circumstance that would fit comfortably under the general understanding of impeachment evidence -- evidence that "is offered to discredit a witness . . . to reduce the effectiveness of [her] testimony by bringing forth evidence which explains why the jury should not put faith in [her] or [her] testimony"; and 2) even if hypnosis evidence comes within Brady's broader definition of exculpatory evidence, the petition would still have to be denied

United States Third Circuit, 08/16/2010
Newman v. Beard
In an inmate's pro se civil action under 42 U.S.C. section 1983 against various officials of the Pennsylvania Department of Corrections, claiming that the Parole Board violated his First Amendment right, his right to due process, and the Ex Post Facto Clause by using his refusal to admit his guilt to adversely affect his eligibility for parole, a dismissal of the complaint is affirmed where: 1) plaintiff's First Amendment claim was properly dismissed as the prison may structure its treatment programs and pursue legitimate penological objectives from that standpoint; 2) plaintiff's substantive due process claim was properly dismissed because the Parole Board's alleged conduct was not arbitrary and did not shock the conscience; 3) plaintiff's procedural due process claim was properly dismissed; and 4) district court properly dismissed plaintiff's Ex Post Facto claim as he cannot show that the Parole Board's alleged retroactive application of a statute, which provides that certain sex offenders shall attend and participate in a Department of Corrections program of counseling or therapy, created a significant risk of increasing his punishment.

United States Third Circuit, 08/16/2010
US v. Doe
District court's sentence of 24 months' imprisonment upon a defendant following revocation of his supervised release, with the objective of helping him recover from his cocaine addiction, is affirmed where: 1) because the plain language and operation of the statute governing post-revocation sentencing, 18 U.S.C. sections 3583(e) and (g), permits a district court to consider medical and rehabilitative needs in imposing a term of post-revocation imprisonment, the sentence is procedurally reasonable; and 2) district court's sentence is substantively reasonable as defendant has failed to meet the burden of demonstrating that no reasonable sentencing court would have imposed the same sentence for the reasons the district court provided.

United States Third Circuit, 08/17/2010
US v. Allen
In a prosecution of defendant for being a felon in possession of a firearm, a denial of a motion to suppress evidence of a firearm and statements to the police as fruits of an illegal seizure is affirmed as defendant's Fourth Amendment rights were not violated when the police briefly detained him during execution of the search warrant at a bar.

United States Third Circuit, 08/17/2010
US v. Quiles
In a prosecution of defendants for money laundering and related crimes in connection with defendants' check cashing business, a denial of defendants' motions for a new trial is affirmed where: 1) the interest of justice does not require a new trial as the new evidence of defendants' principal adverse witness's indictment for child rape and other crimes is merely impeaching; 2) there was sufficient evidence to convict the daughter; 3) the father's sentence is affirmed as the district court conducted a full sentencing hearing and then sufficiently explained why it was imposing a below-guideline sentence of 60 months imprisonment. .

United States Fourth Circuit, 08/16/2010
US v. Cooper
In a section 2255 proceeding, district court's denial of defendant's request that his sentence for his drug trafficking and firearms offenses be vacated on the ground that he received ineffective assistance of counsel is affirmed as, because defendant repeatedly expressed his desire to have the criminal proceeding concluded, received the best possible sentence he could have received under the agreement he entered into with the government, and had no nonfrivolous issues to appeal, defendant has not established that counsel was constitutionally ineffective for failing to consult with him about an appeal or that defendant was prejudiced by counsel's failure to consult with him. .

United States Fourth Circuit, 08/16/2010
US v. Johnson
Conviction of defendant for conspiracy to possess with the intent to distribute cocaine is reversed and remanded where: 1) district court abused its discretion in admitting a DEA agent's testimony as a lay witness under Rule 701, and this error was not harmless; and 2) district court erred in admitting the testimony of a prior, alleged drug customer, under Rule 404(b), and despite the district court's limiting instruction, this error was not harmless.

United States Sixth Circuit, 08/16/2010
US v. Webb
In a prosecution of defendant for producing counterfeit bills and using the bills to purchase merchandise at several businesses, district court's imposition of an above-Guidelines sentence of 37 months' imprisonment is affirmed where: 1) the district court did not clearly err in refusing to apply the Application Note 4 exception for bills that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny; and 2) the record reflects that the district court carefully considered many of the section 3553(a) sentencing factors, gave appropriate weight to the most relevant factors, and ultimately reached a reasoned conclusion.

United States Sixth Circuit, 08/16/2010
US v. Corsmeier
Conviction of defendant for conspiracy to commit bank, wire and mail fraud, money laundering and other crimes is reversed and remanded as, whatever minimal probative value certain cocaine evidence may have, the evidence does not satisfy the requirements of Rule 403 that its probative value not be substantially outweighed by its prejudicial effect.

United States Sixth Circuit, 08/17/2010
McKenna v. Honsowetz
In plaintiff's 42 U.S.C. section 1983 suit against two police officers who responded to a 911 report that plaintiff was having a medical seizure and and thereafter allegedly violated his Fourth Amendment rights, district court's denial of defendants' motions for summary judgment based on qualified immunity and reduction of an award for pain and suffering from $275,000 to $10,000 are affirmed where: 1) whether the officers were entitled to qualified immunity depends on whether they acted in a law-enforcement capacity or in an emergency-medical-response capacity when engaging in the conduct that plaintiff claimed violated the Fourth Amendment, and here, the view of the facts undoubtedly supports a finding that the officers acted in a law-enforcement capacity; 2) the record contained ample evidence to support the determination that the officers unreasonably searched the home and seized plaintiff; and 3) plaintiff's appeal of the reduction in the award is denied as the Supreme Court has clearly stated that a plaintiff cannot appeal a remittitur after he has accepted it.

United States Seventh Circuit, 08/16/2010
US v. Brown
In a prosecution of defendant for possessing crack cocaine with the intent to distribute it, district court's imposition of a sentence of 150 months' imprisonment is reversed and remanded in light of US v. Corner as, although defendant received a sentence that was one month less than the low end of the advisory range for powder cocaine career offenders, it is not known how the district court would have sentenced defendant had it known it could disagree with the crack/powder disparity inherent in the career offender guideline.

United States Seventh Circuit, 08/17/2010
US v. Campbell
In a prosecution of defendant for being a felon in possession of a firearm, the imposition of a fifteen-year mandatory minimum sentence to run concurrently with defendant's state sentence for an unrelated offense, without crediting defendant with the nine months already served for the state sentence, is vacated and remanded as, under section 5G1.3, district court had the discretion to adjust defendant's sentence to account for the time he had served on his state conviction.

United States Seventh Circuit, 08/17/2010
Issaq v. Holder
An Iraqi citizen's petition for review of of BIA's denial of petitioner's application for withholding of removal and other findings is denied where: 1) a Report is not enough on its own to support a finding that any persecution petitioner, as an Assyrian Christian, would face would occur at the hands of government agents, or would otherwise be condoned by the government; 2) petitioner's residential burglary crime led to an aggregate of more than five years' imprisonment and was a "particularly serious" felony for purposes of section 1231(b)(3)(B); and 3) although the IJ erred in overlooking certain evidence in the Report, petitioner has not shown he was prejudiced by the error, and nothing in the record suggests that he was seeking a deferral of removal under the CAT.

United States Seventh Circuit, 08/18/2010
US v. LaFaive
Conviction of defendant on two counts of bank fraud and two counts of aggravated identity theft for assuming the identity of her deceased sister and opening checking accounts in her name and using counterfeited checks is affirmed where: 1) district court did not plainly err in entering the jury's conviction of defendant for violating 18 U.S.C. section 1028A(a)(1) as the statute criminalizes the misuse of another person's identity, whether that other person is living or deceased; and 2) the district court did not plainly err in calculating or imposing defendant's sentence.

United States Ninth Circuit, 08/17/2010
US v. Dotson
Defendants' convictions for furnishing liquor to minors on an Air Force base are affirmed where assimilation of Washington state law under the Assimilative Crimes Act (ACA) was proper because: 1) 50 U.S.C. app. section 473 and AFI 34-219 contained no generally applicable prohibitions, and thus did not establish federal policy against which a state statute must be measured for conflict or inconsistency; and 2) the specific statute at issue, Wash. Rev. Stat. section 66.44.270, was the type of prohibitory law the court had previously deemed properly assimilated under the ACA.

United States Ninth Circuit, 08/17/2010
US v. Alvarez
Defendant's conviction for falsely verbally claiming to have received the Congressional Medal of Honor is reversed where the Stolen Valor Act lacked the elements that would make it analogous to the other restrictions on false speech previously held to be proscribable without constitutional problem, and thus the Act was not narrowly drawn to achieve a compelling governmental interest, and was unconstitutional.

United States Ninth Circuit, 08/18/2010
US v. Rivera-Corona
Defendant's conviction for carrying a firearm in relation to a drug trafficking crime is vacated where the district court erred in summarily rejecting defendant's request for appointed counsel to replace retained counsel simply because of the expense and the stage of the proceedings.

United States Tenth Circuit, 08/17/2010
US v. Hood
Defendant's conviction for possession with intent to distribute fifty grams or more of actual methamphetamine is affirmed where: 1) defendant failed to show bad faith on the part of the police in failing to preserve evidence; 2) the district court did not clearly err in rejecting defendant's claim that his due process rights had been violated under Trombetta and Youngblood; and 3) defendant was not prejudiced by an error in the Enhancement Information.

United States Tenth Circuit, 08/17/2010
Lundstrom v. Romero
In a civil rights action claiming a prolonged detention of plaintiffs, summary judgment for defendant-officers is reversed in part where plaintiffs alleged facts sufficient to demonstrate the officers violated their clearly established constitutional rights because, while the circumstances the officers confronted initially supported a brief investigatory detention, objectively reasonable officers would not have prolonged the detention and searched the home on the facts before them.

United States Eleventh Circuit, 08/17/2010
US v. Newman
Defendant's sentence for violating the International Parental Kidnapping Crime Act is reversed where the district court clearly erred in finding that the offense was "otherwise extensive in scope, planning, or preparation" and thus enhancing the sentence

United States DC Circuit, 08/17/2010
Sigmund v. Starwood Urban Retail VI, LLC
In an action against the owners of a parking garage where plaintiff was injured by a car bombing, summary judgment for defendants is affirmed where the accidental victim of a car bomb that plaintiff's half-brother intended for their father could not recover from the third-party defendants he sued unless his half-brother's crime was foreseeable. .

Supreme Court of Delaware, 08/16/2010
Guy v. State
In a first-degree murder prosecution, the Superior Court's denial of defendant's Rule 61 motion for post-conviction relief is affirmed where: 1) defendant made no effort to show why or how the Superior Court abused its discretion in holding that his Batson claim was procedurally barred; 2) defendant offered no evidence that overcame the strong presumption that counsel's actions should be considered sound trial strategy; and 3) defendant failed to show how different instructions would either have confused the jury or were erroneous as a matter of law

August 16-20, 2010.

United States Third Circuit, 08/18/2010
McCauley v. Univ. of the Virgin Islands
In plaintiff's 42 U.S.C. section 1983 suit against a university, its president and two other individuals arising from the university's decision charging plaintiff with violating provisions of the Student Code of Conduct (Code) for his alleged harassment of an individual who had accused his friend of rape, claiming that various Code provisions violated the First Amendment, district court's judgment is affirmed in part and reversed in part where: 1) district court's dismissal of all claims against the university in holding that it was not a "person" for purposes of section 1983 is affirmed; 2) the two individuals, as employees of the university acting in their official capacities, were likewise not "persons" for purposes of section 1983; 3) adjudication of plaintiff's as-applied challenge to Major Infraction Paragraph E was unnecessary because the district court had already concluded that the paragraph was facially unconstitutional; 4) district court's dismissal of Paragrap h B for lack of an injury should be reversed and judgment should be entered in favor of the two employees because that paragraph has a limited, constitutional construction; and 5) Paragraphs H and R are unconstitutional infringements on students' First Amendment right to free speech.

United States Sixth Circuit, 08/17/2010
McKenna v. Honsowetz
In plaintiff's 42 U.S.C. section 1983 suit against two police officers who responded to a 911 report that plaintiff was having a medical seizure and and thereafter allegedly violated his Fourth Amendment rights, district court's denial of defendants' motions for summary judgment based on qualified immunity and reduction of an award for pain and suffering from $275,000 to $10,000 are affirmed where: 1) whether the officers were entitled to qualified immunity depends on whether they acted in a law-enforcement capacity or in an emergency-medical-response capacity when engaging in the conduct that plaintiff claimed violated the Fourth Amendment, and here, the view of the facts undoubtedly supports a finding that the officers acted in a law-enforcement capacity; 2) the record contained ample evidence to support the determination that the officers unreasonably searched the home and seized plaintiff; and 3) plaintiff's appeal of the reduction in the award is denied as the Suprem e Court has clearly stated that a plaintiff cannot appeal a remittitur after he has accepted it. .

United States Sixth Circuit, 08/20/2010
Hussein v. City of Perrysburg
In homeowners' suit against a city, a city inspector and other individuals in their official and personal capacities, claiming that defendants violated their procedural and substantive due process rights by ordering a construction worker to remove a temporary asphalt layer in their driveway, judgment of the district court is reversed and remanded where: 1) defendants are entitled to qualified immunity because state officials are permitted under the Constitution to inform citizens of the officials' view that they are violating state or local law and state officials are also permitted to threaten litigation or prosecution if citizens do not agree to conform their actions to state or local law; and 2) defendant did not violate plaintiffs' substantive due process rights as the asphalt driveway incident did not implicate specific constitutional guarantees.

United States Seventh Circuit, 08/20/2010
Bauer v. Shepard
In plaintiffs' challenge to certain provisions of the Indiana Code of Judicial Conduct, claiming that they refrain from speaking about controversial issues such as abortion or from filling out questionnaires about abortion sent by the Indiana Right to Life, Inc., because they fear the prospect of sanctions under the Code, district court's holding that all of the contested provisions are constitutional is affirmed where: 1) district court's judgment that a plaintiff's challenge to the pre-2009 Code became moot is modified as it is unripe; 2) the fundraising provisions are constitutional; 3) the partisan-activities provisions are constitutional; 4) the "commits clauses" provisions are not overbroad; and 5) the recusal clause does not present a constitutional issue at all.

United States Eighth Circuit, 08/17/2010
Shannon v. Koehler
In an action alleging that defendant-officer violated the Fourth Amendment by using excessive force in arresting plaintiff, a denial of qualified immunity to defendant is affirmed where: 1) the facts, construed in the light most favorable to plaintiff, established a violation of a constitutional right; and 2) a reasonable official would have known that his actions were unlawful.

United States Ninth Circuit, 08/17/2010
US v. Alvarez
Defendant's conviction for falsely verbally claiming to have received the Congressional Medal of Honor is reversed where the Stolen Valor Act lacked the elements that would make it analogous to the other restrictions on false speech previously held to be proscribable without constitutional problem, and thus the Act was not narrowly drawn to achieve a compelling governmental interest, and was unconstitutional.

United States Tenth Circuit, 08/17/2010
Lundstrom v. Romero
In a civil rights action claiming a prolonged detention of plaintiffs, summary judgment for defendant-officers is reversed in part where plaintiffs alleged facts sufficient to demonstrate the officers violated their clearly established constitutional rights because, while the circumstances the officers confronted initially supported a brief investigatory detention, objectively reasonable officers would not have prolonged the detention and searched the home on the facts before them.

United States Tenth Circuit, 08/18/2010
American Atheists, Inc. v. Duncan
In an Establishment Clause Challenge to the decision of the Utah Highway Patrol Association, with the permission of Utah state authorities, to erect a number of twelve-foot high crosses on public land to memorialize fallen Utah Highway Patrol troopers, summary judgment for defendants is reversed where the memorials had the impermissible effect of conveying to the reasonable observer the message that the state preferred or otherwise endorsed a certain religion.

Supreme Court of California, 08/19/2010
Moore v. Superior Court
A court of appeals reversal of trial court's denial of defendant's motion to stay the proceedings to extend his commitment as an SVP to determine his mental competence to stand trial is reversed as, balancing all the factors, and placing special weight on the paramount interest in public safety, the due process does not require mental competence on the part of someone undergoing a commitment or recommitment trial under the SVP.

California Court of Appeal, 08/18/2010
Qualified Patients Ass'n v. City of Anaheim
In plaintiffs' action against the City of Anaheim, seeking a declaratory judgment that state's medical marijuana laws preempted the city's ordinance prohibiting medical marijuana dispensaries within the city, trial court's order sustaining the city's demurrer to plaintiffs' complaint without leave to amend is affirmed in part and reversed in part where: 1) trial court correctly concluded plaintiffs failed to state a cause of action under the Unruh Act, which is aimed at "business establishments," not local government legislative acts; and 2) trial court erred as a matter of law in concluding federal regulation of marijuana in the Controlled Substances Act preempted California's decision in the Compassionate Use Act and the Medical Marijuana Program Act to decriminalize specific medical marijuana activities under state law.

August 2-6, 2010.

United States Second Circuit, 08/02/2010
US v. Johnson
Defendant's sentence for being a felon in possession of a firearm is affirmed where a violation of Connecticut General Statute section 53a-179b (Rioting at a correctional institution) qualified as a "violent felony" under the Armed Career Criminal Act.

United States Second Circuit, 08/02/2010
Scott v. Fischer
In an action claiming that defendants deprived plaintiff of liberty without due process of law both by placing her on mandatory post-release supervision without a proper judicial sentence and by failing to take action to remove the supervision before or after she was rearrested for violating the terms thereof, dismissal of the action is affirmed where defendants were entitled to qualified immunity for all actions they took prior to the Second Circuit's decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), and further, plaintiff has not pleaded sufficient facts to state a claim upon which relief can be granted for any actions the defendants took thereafter. ..

United States Second Circuit, 08/03/2010
US v. Broxmeyer
Defendant's convictions for production of child pornography and for transportation of a minor across state lines with the intent to engage in criminal sexual activity are reversed where: 1) the prosecution failed to prove beyond a reasonable doubt that defendant persuaded, induced, or enticed the victim to take Photos 1 and 2; and 2) an 18 U.S.C. section 2423(a) conviction cannot lie where the unlawful sexual act occurs before the crossing of state lines, and where there is no evidence of an intent to commit a sexual act when state lines were crossed.

United States Third Circuit, 08/02/2010
Reedy v. Evanson
In plaintiff's 42 U.S.C. section 1983 action against a detective and others, claiming unlawful seizure and unlawful search under the Fourth Amendment and related state law violations arising from a criminal complaint against plaintiff for falsely reporting a crime of sexual assault and robbery while working as a cashier at a convenience store (these were later dropped after a serial rapist was captured and confessed to the crimes), a grant of defendants' motion for summary judgment is affirmed in part, vacated in part, reversed in part, and remanded where: 1) district court erred in granting summary judgment to the detective on plaintiff's Fourth Amendment unlawful seizure claim and her related federal and state law claims, as no reasonably competent officer could have concluded at the time of plaintiff's arrest that there was probable cause for the arrest; 2) summary judgment on detective's defense of qualified immunity cannot stand as the availability of the defense mus t be decided after fact finding by the jury to determine whether the facts as recounted by the detective or by plaintiff are more credible; 3) district court erred in granting summary judgment to the detective on plaintiff's unlawful search claim; 4) district court's grant of summary judgment as to all claims against the officer and the public safety director are affirmed; and 5) district court's grant of summary judgment as to plaintiff's intentional infliction of emotional distress claim, against the officer and the safety director is affirmed.

United States Third Circuit, 08/03/2010
Saranchak v. Beard
A partial grant of defendant's petition for habeas relief from the first degree murder conviction of his grandmother and uncle and a sentence of death is reversed where: 1) the Pennsylvania Supreme Court's rejection of the claim of ineffective assistance of counsel regarding the counsel's failure seek suppression of certain statements was not an unreasonable application of, or contrary to, clearly established federal law; 2) defendant failed to establish a reasonable probability that, but for the admission of his statements to the state police, the result of the proceeding would have been different; 3) defendant failed to establish a reasonable probability that, but for counsel's unprofessional errors in failing to investigate and present a proper diminished capacity defense, he would not have been convicted of first degree murder; and 4) defendant failed to show that he is "in custody in violation of the Constitution or laws or treaties of the United States."

United States Fifth Circuit, 08/02/2010
Valle v. Houston
In an action based on an incident in which decedent was shot and killed by Houston police officers during an incident at his family's home, summary judgment for defendants is affirmed where: 1) although an officer's decision to order entry into plaintiffs' home was arguably the "moving force" behind the constitutional violations that resulted in decedent's death, because his decision was not a decision by a final policymaker of the City, the City could not be liable; and 2) plaintiffs failed to present sufficient evidence of causation as to the entry of their home. ..

United States Fifth Circuit, 08/03/2010
Spotts v. US
In an action by present and former inmates of the Federal Correctional Complex, United States Penitentiary, in Beaumont, Texas, in connection with the decision made by the Regional Director of the South Central Region of the Federal Bureau of Prisons, not to evacuate the Penitentiary in the aftermath of Hurricane Rita, the dismissal of the action is affirmed where: 1) plaintiffs did not plead, and never argued to the district court, that the Eighth Amendment precluded the application of the discretionary function exception to the Federal Tort Claims Act; 2) plaintiffs' contention that the Safe Drinking Water Act imposed nondiscretionary duties that were contravened by the decision not to evacuate lacked merit; and 3) defendants' decision was the type of policy decision protected by the discretionary function exception and therefore meets the second prong of the Berkovitz test.

United States Seventh Circuit, 08/02/2010
Purvis v. Oest
In a former high school teacher's suit against a school district's superintendent and others claiming deprivation of due process and false arrest, arising from a prosecution for allegedly having a sexual relationship with with a 15-year-old student, of which she was acquitted, district court's denial of defendants' motion for summary judgment is reversed where: 1) a genuine issue of material fact exists as to whether the school's investigation was biased and deprived plaintiff of due process; 2) the superintendent, dean and the principal are entitled to qualified immunity; and 3) the police chief had probable cause to arrest plaintiff.

United States Seventh Circuit, 08/03/2010
US v. Li
Conviction of defendant for harboring an alien for commercial advantage or private financial gain is affirmed where: 1) a reasonable jury could have concluded that defendant's inattentiveness reflected his knowledge or reckless disregard of the two aliens' illegal status; 2) the evidence supports an inference that defendant sought to conceal the aliens' presence; 3) evidence supported an inference that defendant derived financial advantage from the aliens' illegal status; 4) defendant's challenge to the jury instruction regarding the mens rea required to convict for harboring an alien is waived; and 5) given the potential punishment the district court could have assessed, the forfeiture of defendant's home is not so grossly disproportionate to the gravity of his convictions as to be excessive. .

United States Eighth Circuit, 08/02/2010
US v. Tenerelli
Defendant's convictions for conspiracy to distribute and possess with intent to distribute methamphetamine, aiding and abetting possession with intent to distribute methamphetamine, and felon in possession of a firearm, are affirmed where: 1) even assuming that defendant was correct that the seized videotapes were not within the scope of the warrant, their admission was harmless; 2) it was reasonable for officers to conclude that defendant was likely to possess methamphetamine at his residence when the search warrant was executed; and 3) there was no flagrant disregard of the limits of the warrant.

United States Eighth Circuit, 08/03/2010
US v. Cook
Defendant's sentence for engaging in and attempting to engage in sexual contact with the intent to abuse the victim in Indian country is affirmed where the district court did not abuse its discretion in finding defendant's criminal history category understated his actual criminal history and likelihood of recidivism. .

United States Eighth Circuit, 08/04/2010
US v. Chapman
Defendant's sentence for receipt of stolen firearms, unlawful possession of a firearm as a previously convicted felon, and unlawful possession of ammunition as a previously convicted felon is affirmed where a knowing recipient of stolen firearms in violation of 18 U.S.C. section 922(j), like a felon in possession of stolen firearms, would not necessarily violate the Iowa felony theft statute, because the federal statute did not require value in excess of $1000, and thus defendant's sentence did not involve double-counting.

United States Eighth Circuit, 08/04/2010
US v. Thomas
Defendant's conviction and sentence for being a felon in possession of a firearm are affirmed where 1) in a prosecution under 18 U.S.C. section 922(g)(1), it was well settled that the government need only prove defendant’s status as a convicted felon and knowing possession of the firearm; and 2) defense counsel agreed with the probation officer’s defense of the enhancements recommended by the presentence report.

United States Ninth Circuit, 08/02/2010
US v. Monday
Defendant's conviction for violating 18 U.S.C. section 1709, which provided for felony penalties for a U.S. Postal Service employee entrusted with mail who "steals, abstracts, or removes from any such letter, package, bag, or mail, any article or thing contained therein . . . .", is affirmed where the statute, in prohibiting Postal Employees from removing contents from mailed items, contained no specific intent requirement.

United States Ninth Circuit, 08/02/2010
Cheney v. Washington
In a habeas petition regarding petitioner's conviction for sexual abuse of a minor, claiming that petitioner was deprived of his Sixth Amendment right to effective assistance of counsel because his defense counsel failed to object properly at two points during his trial, the denial of the petition is affirmed where: 1) defense counsel could have decided not to object to a detective's testimony because it led the detective to admit not only that abuse allegations are sometimes baseless, but that his personal views were sometimes a determinative factor in the decision whether to prosecute; and 2) the state court could reasonably conclude that there was no reasonable probability of a different outcome had defense counsel made an immediate objection to the prosecutor's imprudent remarks.

United States Tenth Circuit, 08/02/2010
Braxton v. Zavaras
In an action by Colorado prisoners proceeding pro se, alleging that defendants violated their civil rights during a public strip search at a correctional facility, the dismissal of the action as untimely is affirmed where: 1) the Colorado Supreme Court had not held that the statute of limitations was automatically tolled whenever a person is involved in any administrative review process; and 2) plaintiffs did not diligently pursue their claims following the exhaustion of their administrative remedies.

United States Tenth Circuit, 08/03/2010
US v. Landeros-Lopez
Defendant's conviction for conspiracy to traffic in methamphetamine is affirmed where, when read in combination with the prosecutor's statements and the plea colloquy, a presentence report provided a sufficient factual basis for the court to accept defendant's plea. However, defendant's sentence is vacated where, by definitively announcing defendant's sentence before providing him with an opportunity to speak on his own behalf, the district court prematurely adjudged his sentence.

United States Eleventh Circuit, 08/02/2010
US v. Rivera
In receiver's appeal from an order that removed her as receiver of the forfeited assets of three convicted criminals, the appeal is dismissed for lack of jurisdiction where: 1) if and when the district court ordered the receiver to pay the new receiver a specific amount, then she can appeal that order; and 2) the complaint that the district court damaged the receiver's professional reputation did not present a justiciable controversy.

United States DC Circuit, 08/03/2010
US v. Proj. on Govt. Oversight
In an action charging a nonprofit and an Interior Department economist under 18 U.S.C. section 209(a), which prohibits giving or receiving any contribution to or supplementation of salary "as compensation for [an individual's] services as an officer or employee of the executive branch," judgment for plaintiff is reversed as a defendant's intent to give or receive compensation for government services is a required element of the offense.

Supreme Court of California, 08/02/2010
People v. Verdugo
Conviction of defendant for first-degree murder and a sentence of death are affirmed over claims of error regarding: 1) trial court's error in refusing to appoint Keenan counsel; 2) failure to disclose Brady and section 1054.1 material; 3) evidentiary issues; 4) instructional error; 5) trial court's failure to limit the prosecution's victim impact evidence; 6) scope of cross examination; 7) alleged Griffin error; 8) timing of defense closing argument; 9) challenges to California's death penalty scheme; 10) denial of new trial motion; 11) denial of request to discharge retained counsel; 12) cumulative prejudice; and 13) alleged violation of international law.

California Court of Appeal, 08/03/2010
People v. Stanley
In a prosecution of defendant for felony vandalism of a truck, trial court's order of restitution in the amount of $2,812.94 for repairs is affirmed as the court disagrees with People v. Yanez (1995) 38 Cal.App.4th 1622, to the extent that Yanez sets out a rigid rule that a trial court could never award more than a vehicle's market value, and the court agrees with In re Dina V. (2007) 151 Cal.App.4th 486, where the statutes implementing Proposition 8 give the trial court a choice between market value and feasible repair cost. Therefore, the trial court did not abuse its discretion in awarding the victim the cost of repairing the vehicle, even if that amount exceeds the replacement value of the vehicle.

Supreme Court of Delaware, 08/03/2010
Crawford v. Jones
In a wrongful death action based on the death of an individual following a police chase, summary judgment for defendants is reversed where a reasonable juror could conclude that defendant-officer had grossly negligently initiated, terminated, or conducted the pursuit, and also proximately caused the decedent's death.

Supreme Court of Delaware, 08/03/2010
Stevens v. State of Delaware
Defendant's robbery conviction is affirmed where: 1) any substantive comments of a third party embedded in an 11 Del. C. section 3507 statement were inadmissible under section 3507 because they are not prior statements of the witness; and 2) defendant's appellate assertions of plain error disregarded his trial attorney's initial decision not to move for a mistrial and not to accept the trial judge's offer of a curative instruction, and counsel's subsequent failure to object to the later statements by a detective. ..

Supreme Court of Delaware, 08/03/2010
Blake v. State of Delaware
Defendant's murder conviction is reversed where the Superior Court committed reversible error by admitting the prior statements of five witnesses into evidence under section 3507, because the proper foundational requirements were not established.

August 2-6, 2010.

United States First Circuit, 08/04/2010
IMS Health Inc. v. Mills
In a challenge to the constitutionality of 22 Me. Rev. Stat. Ann. tit. 22, section 1711-E(2-A), which allows prescribers licensed in Maine to choose not to make their identifying information available for use in marketing prescription drugs to them, district court's grant of plaintiffs' motion for preliminary injunction in prohibiting Maine from enforcing section 1711-E(2-A) on the basis of plaintiffs' First Amendment claims is reversed where: 1) plaintiffs' First Amendment challenges fail for the reasons stated in Ayotte, as the statute regulates conduct, not speech, and even if it regulates commercial speech, that regulation satisfies constitutional standards; 2) the Maine statute constitutionally protects Maine prescribers' choice to opt in to confidentiality protection to avoid being subjected to unwanted solicitations based on their identifying data; 3) plaintiffs' argument that the statute is void for vagueness is rejected; 4) section 1711-E(2-A) regulates prescript ion drug information intermediaries' out-of-state use or sale of opted-in Maine prescribers' data, and this interpretation does not raise constitutional concerns under the dormant Commerce Clause; and 5) nor would section 1711-E(2-A)'s regulation of prescription drug information intermediaries' out-of-state use of sale of opted-in Maine prescribers' identifying data raise constitutional concerns as a disproportionate burdens on interstate commerce under Pike.

United States Second Circuit, 08/02/2010
Scott v. Fischer
In an action claiming that defendants deprived plaintiff of liberty without due process of law both by placing her on mandatory post-release supervision without a proper judicial sentence and by failing to take action to remove the supervision before or after she was rearrested for violating the terms thereof, dismissal of the action is affirmed where defendants were entitled to qualified immunity for all actions they took prior to the Second Circuit's decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), and further, plaintiff has not pleaded sufficient facts to state a claim upon which relief can be granted for any actions the defendants took thereafter. ..

United States Second Circuit, 08/03/2010
US v. Broxmeyer
Defendant's convictions for production of child pornography and for transportation of a minor across state lines with the intent to engage in criminal sexual activity are reversed where: 1) the prosecution failed to prove beyond a reasonable doubt that defendant persuaded, induced, or enticed the victim to take Photos 1 and 2; and 2) an 18 U.S.C. section 2423(a) conviction cannot lie where the unlawful sexual act occurs before the crossing of state lines, and where there is no evidence of an intent to commit a sexual act when state lines were crossed.

United States Third Circuit, 08/02/2010
Equal Employment Oppotunity Comm'n v. Geo Group, Inc.
In the EEOC's Title VII suit on behalf of a class of Muslim women employees against a private company that was contracted to run a prison for Delaware County, claiming that defendant violated Title VII's prohibitions on religious discrimination when it failed to accommodate the class members by providing them an exception to the prison's dress policy that otherwise precluded them from wearing Muslim head coverings called khimars at work, a grant of defendant's motion for summary judgment is affirmed as the district court did not err by relying on Webb v. City of Philadelphia, 562 F.3d 256 (3d. Cir. 2009), which held that, notwithstanding the sincere religious beliefs of plaintiff police officer of the need to wear a khimar, that belief was subordinate to the police department's policy prohibiting the wearing of a khimar because "safety is undoubtedly an interest of the greatest importance."

United States Third Circuit, 08/03/2010
Saranchak v. Beard
A partial grant of defendant's petition for habeas relief from the first degree murder conviction of his grandmother and uncle and a sentence of death is reversed where: 1) the Pennsylvania Supreme Court's rejection of the claim of ineffective assistance of counsel regarding the counsel's failure seek suppression of certain statements was not an unreasonable application of, or contrary to, clearly established federal law; 2) defendant failed to establish a reasonable probability that, but for the admission of his statements to the state police, the result of the proceeding would have been different; 3) defendant failed to establish a reasonable probability that, but for counsel's unprofessional errors in failing to investigate and present a proper diminished capacity defense, he would not have been convicted of first degree murder; and 4) defendant failed to show that he is "in custody in violation of the Constitution or laws or treaties of the United States."

United States Third Circuit, 08/05/2010
Great W. Mining & Mineral Co. v. Fox Rothschild LLP
In plaintiff's 42 U.S.C. section 1983 suit against a law firm and an alternative dispute resolution entity, claiming that its state-court losses were the result of a corrupt conspiracy between defendants and members of the Pennsylvania state judiciary to exchange favorable rulings for future employment as arbitrators with the arbitration firm, the district court's dismissal of plaintiff's complaint for failure to state a claim and denial of its motion for reconsideration and motions for leave to amend its complaint are affirmed where: 1) defendants' argument that the Rooker-Feldman doctrine precludes the exercise of subject matter jurisdiction over this case is rejected as plaintiff is not complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments, but rather, plaintiff asserts an independent constitutional claim that the alleged conspiracy violated it s right to be heard in an impartial forum; and 2) granting plaintiff leave to amend would have proved futile as even the final version of its complaint failed to plead facts plausibly suggesting a conspiratorial agreement.

United States Third Circuit, 08/05/2010
Singer Mgmt. Consultants, Inc. v. Milgram
District court's denial of plaintiff's request for attorney's fees, arising from plaintiff's suit seeking a TRO and preliminary injunction to restrain the Attorney General of the State of New Jersey from her allegedly unconstitutional enforcement of the New Jersey Deceptive Practices in Musical Performances Statute (Truth in Music Act), is vacated and remanded for an order awarding reasonable attorney's fees and costs as the district court erred in holding that plaintiff was not a prevailing party because it "voluntarily" changed its interpretation of the Truth in Music Act.

United States Fifth Circuit, 08/02/2010
Valle v. Houston
In an action based on an incident in which decedent was shot and killed by Houston police officers during an incident at his family's home, summary judgment for defendants is affirmed where: 1) although an officer's decision to order entry into plaintiffs' home was arguably the "moving force" behind the constitutional violations that resulted in decedent's death, because his decision was not a decision by a final policymaker of the City, the City could not be liable; and 2) plaintiffs failed to present sufficient evidence of causation as to the entry of their home.

United States Sixth Circuit, 08/03/2010
In re: Squire
In proceedings arising from the suspension of a former judge on the county's Domestic Relations and Juvenile Court from practicing law in state of Ohio for two years, district court's imposition of a reciprocal disbarment of petitioner from practicing in federal court is affirmed where: 1) the failure to disclose the names of those persons to whom the Ohio disciplinary counsel may have spoken during the course of his investigation, but who were not part of the administrative record resulting in petitioner's disbarment did not testify against her, was not a due process violation requiring reversal; 2) the record supports the district court's decision to impose reciprocal discipline on petitioner; and 3) petitioner's remaining claims are rejected as meritless.

United States Sixth Circuit, 08/04/2010
US v. People First of Tennessee
In a case arising from the district court's original 1993 ruling that the state was violating the substantive due process rights of mentally retarded residents at a state operated home for mentally retarded individuals, district court's denial of the State of Tennessee's motion under Fed. R. Civ. Proc. 60(b)(5), requesting the court to vacate the injunctive relief and dismiss the case, is affirmed as the state has not put forward a single case or statute that could qualify as the significant change in law required to satisfy its initial burden under Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), and in light of this failure, the district court did not abuse its discretion when it refused to revisit the original judgment.

United States Seventh Circuit, 08/02/2010
Moss v. Martin
In plaintiff's 42 U.S.C. section 1983 suit against several state officials, claiming that he was fired as the Chief of the Highway Sign Shop of the Illinois Department of Transportation in order to make room for an employee chosen by the administration of then-Governor Rod Blagojevich, district court's grant of defendants' motion for summary judgment is affirmed as, although the decision to fire plaintiff probably fell afoul of the Rutan principal (rule banning politically-based firings)l, defendants were entitled to qualified immunity. .

United States Seventh Circuit, 08/02/2010
Purvis v. Oest
In a former high school teacher's suit against a school district's superintendent and others claiming deprivation of due process and false arrest, arising from a prosecution for allegedly having a sexual relationship with with a 15-year-old student, of which she was acquitted, district court's denial of defendants' motion for summary judgment is reversed where: 1) a genuine issue of material fact exists as to whether the school's investigation was biased and deprived plaintiff of due process; 2) the superintendent, dean and the principal are entitled to qualified immunity; and 3) the police chief had probable cause to arrest plaintiff.

United States Eighth Circuit, 08/05/2010
Rattray v. Woodbury Cty.
In an action against an Iowa county alleging that plaintiff was strip searched illegally as part of the booking process at the county jail, a denial of plaintiff's motion for class certification is affirmed where: 1) the magistrate judge's determination that plaintiff had good cause for not asserting a class action before October 2007 did not dictate the conclusion on the separate motion to certify a class; and 2) plaintiff's failure to move to certify with alacrity undermines confidence in the zeal with which she would represent the interests of absent class members.

United States Ninth Circuit, 08/02/2010
Krainski v. Nevada
In an action alleging constitutional and state law violations by a college student arising from an altercation with plaintiff's former roommate that led to plaintiff's arrest and subjection to university discipline, dismissal of the action is affirmed where: 1) the district court did not err in dismissing plaintiff's claims against defendants in their official capacities based on sovereign immunity; 2) the record did not contain any information that would create a genuine issue of material fact as to whether officers had facts sufficiently detailed to cause a reasonable person to believe a crime had been committed and that plaintiff was the perpetrator; and 3) plaintiff did not allege that defendants suspended or expelled her for her conduct, or that she was otherwise deprived of an entitlement to education conferred by the state or secured by some other independent source or understanding.

United States Tenth Circuit, 08/02/2010
Braxton v. Zavaras
In an action by Colorado prisoners proceeding pro se, alleging that defendants violated their civil rights during a public strip search at a correctional facility, the dismissal of the action as untimely is affirmed where: 1) the Colorado Supreme Court had not held that the statute of limitations was automatically tolled whenever a person is involved in any administrative review process; and 2) plaintiffs did not diligently pursue their claims following the exhaustion of their administrative remedies.

United States Tenth Circuit, 08/06/2010
Dodds v. Richardson
In an action claiming that defendant-sheriff violated plaintiff's Fourteenth Amendment due process rights by depriving him of his protected liberty interest in posting bail, the denial of summary judgment to defendant based on qualified immunity is affirmed where: 1) defendant has yet to proffer any reason, let alone a "legitimate goal," for refusing to allow plaintiff to post bail and detaining plaintiff for three days, other than the assertion that the longstanding policies or customs at the jail, allegedly set by either the court clerk or the district judges, prohibited individuals charged with a felony from posting bond until they had been arraigned by a judge and from posting bond after hours; and 2) plaintiff’s right to be free from unjustified detention after his bail was set was clearly established such that a reasonable official in defendant's position in April 2007 would have understood that his deliberately indifferent maintenance of the policies that pre vented arrestees from posting preset bail for no legitimate reason violated the Constitution.

United States DC Circuit, 08/06/2010
Boardley v. US Dep't of the Interior
In a challenge to National Park Service regulations making it unlawful to engage in expressive activities within any national park unless a park official first issues a permit authorizing the activity, a partial grant of defendant's motion for summary judgment is reversed where the regulations in their current form were antithetical to the core First Amendment principle that restrictions on free speech in a public forum may be valid only if narrowly tailored.

United States DC Circuit, 08/06/2010
Phillips v. Fulwood
In an action claiming that plaintiff-inmate should be subject to the parole rules in effect at the time of his conviction in determining his eligibility, the dismissal of the complaint is affirmed where there was no significant risk that application of the 2000 regulations had prolonged plaintiff's incarceration. .

United States Federal Circuit, 08/02/2010
Consol. Coal Co. v. US
In a suit by a group of operators in the coal mining industry, the United States court of Federal Claims' grant of summary judgment finding that certain regulations that implement the Surface Mining Control and Reclamations Act of 1977 (SMCRA) reclamation fee do not violate the Export Clause of the Constitution is affirmed as all of Office of Surface Mining's (OSM) challenged regulations for collecting the reclamation fee under SMCRA, like the statute itself, apply to "coal extracted" and do not violate the Export Clause. .

Supreme Court of California, 08/02/2010
Coral Constr. Inc. v. City & County of San Francisco
In an action against the City and County of San Francisco brought by construction companies, challenging the 2003 version of an ordinance that preferentially awards public contracts to minority-owned business enterprises (MBE's) and women-owned business enterprises (WBE's) as unconstitutional, the judgment of the court of appeal is affirmed where: 1) the political structure doctrine does not invalidate section 31 of Article I of the California Constitution (forbidding a city awarding public contracts to discriminate or grant preferential treatment based on race or gender), which was approved by voters via Proposition 209; 2) there is no merit in the argument that the federal funding exception exempts the 2003 ordinance from section 31's general prohibition of racial preferences, and as such, no triable issue of fact exists on this point to preclude summary judgment for plaintiffs; and 3) the court of appeal was correct in reversing superior court's grant of summary judgm ent for plaintiffs on the city's Federal Compulsion argument that the federal equal protection clause requires the 2003 ordinance as a remedy for the city's own discrimination, and in remanding for the limited purpose of adjudicating this issue. .

California Court of Appeal, 08/04/2010
In re Coley
Defendant's request for habeas relief from his conviction for failing to update his sex offender registration within five days of his birthday, and a sentence of 25 years to life pursuant to the Three Strikes law, the petition is denied where: 1) as in Ewing, defendant's sentence is justified by the State's public safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious, criminal record; 2) this is not the "extreme" case necessary to justify a finding that noncapital punishment violates the Eighth Amendment; and 3) in disagreement with the holding in People v. Carmony, 127 Cal.App.4th 1066 (2005), defendant's sentence does not violate the Eighth Amendment.

California Court of Appeal, 08/05/2010
Los Angeles Unified Sch. Dist. v. Casasola
In plaintiffs' request for reimbursement from a school district for relocation expenses, arising from the school district's acquisition of plaintiffs' property by eminent domain, judgment of the trial court is affirmed where: 1) the trial court did not err in rejecting the plaintiffs' claim for expenses incurred to mitigate loss of goodwill of their business; and 2) the trial court did not err in enforcing the stipulated $5,000 per day penalty

Mr. Richards writes: "Judge Dory Reiling, mag. iur., Ph.D., Vice President of the Amsterdam District Court, has posted 'IT and the Access to Justice Crisis,' http://j.mp/cKmHz5 , on the VoxPopuLII Blog, http://blog.law.cornell.edu/voxpop/ , published by the Legal Information Institute at Cornell University Law School.

In her post -- which is based on a chapter in her recent book entitled Technology for Justice: How Information Technology Can Support Judicial Reform, http://j.mp/cpG7OY -- Judge Reiling discusses what we currently know about citizens' information needs and behavior respecting access to civil justice. Judge Reiling describes the information that citizens need to resolve disputes outside of the legal system -- whether without a third party or via alternative dispute resolution (ADR) -- as well as the information they need in order to proceed pro se via the civil justice system. Judge Reiling then discusses how technology can be used to encourage dispute resolution outside of formal legal proceedings, as well as to improve outcomes for self-represented litigants in the civil justice system.

Judge Reiling's post should be of particular interest to the access to justice / pro bono community, court administrators, alternative dispute resolution professionals, developers of judicial and access-to-justice information systems, and to those who provide or seek to improve legal information services to the public."

-- Robert Richards
Editor in chief, VoxPopuLII