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CONSTITUTION
Boim v. Fulton County School District, July 31
When a teacher read a student's notebook
containing a narrative regarding a shooting, the teacher became
concerned, reported the incident, and the student was suspended. The
circuit holds that the student's actions where she describes taking a
gun into her classroom and shooting her teacher, and then giving that
notebook to another student, clearly caused a substantial disruption
to the maintenance of order and decorum. Thus, especially in light of
the recent Columbine events, and in light of schools' compelling
interest in acting quickly to prevent violence on school property, the
school did not violate the student's First Amendment rights.
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BANKRUPTCY
Citation Corporation v. Miller Buckfire & Co., July 26
A bankruptcy debtor challenged an adjusted fee
for the investment banking services of Miller Buckfire. The circuit
holds that the lodestar, which requires a court to find a reasonable
rate and then multiply that rate by the hours actually expended to
benefit the estate to calculate an appropriate fee, is an appropriate
method that may be used. The fee award was reasonable in light of the
court's refusal to award Miller Buckfire a fee of over $1,000.00 per
hour because the services originally anticipated were not actually
required, the hours expended were slightly excessive, and the hourly
rate was excessive.
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DRUG OFFENDER
US v. Lopez-Vanegas, July 26
Defendants were convicted after the government
alleged that they brokered a deal between a Colombian drug trafficking
organization and a Saudi Arabian Prince, to transport cocaine on the
Prince's airplane. The circuit holds that the statutes under which
defendants were convicted do not apply extraterritorially, and their
conduct does not violate the statutes. Under the statutes, Congress
has not stated its intent to reach discussions held in the US in
furtherance of a conspiracy to possess controlled substances outside
the territorial jurisdiction of the US, with intent to distribute
those controlled substances outside of the jurisdiction. Vacated.
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EVIDENCE, SENTENCING
US v. Tampas, July 26
Defendant was convicted of conspiracy to commit
embezzlement from an organization receiving federal funds in
connection with his actions as president of the YMCA which the
government claimed resulted in an unpaid principal tax liability of
$1.4 million. The circuit holds that the evidence was sufficient to
support the conviction. At sentencing, the court used the relevant
factors, recognized that the guidelines were advisory, and the 97
month sentence is within the ten-year maximum sentence permitted by
the statute. The $1,405,821.77 restitution order is vacated since the
government never sought to prove that defendant's embezzlement scheme
caused the YMCA's failure to pay its payroll taxes.
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CLASS ACTIONS, CIVIL PROCEDURE
Adams v. Southern Family Bureau Life Insurance Company, July 25
The parties entered into a stipulated settlement
in an earlier consumer class action suit, which claimed defendant had
engaged in a number of deceptive and misleading sales tactics in
selling flexible premium and universal life policies. Class members
then brought similar claims against defendant. The circuit holds that
the class notice afforded to plaintiffs in the prior class action
settlement satisfied the constitutional requirements of due process.
Also, the claims that plaintiffs have brought against defendant in
Mississippi plainly fall within the scope of the earlier class action
settlement and release, and thus are barred by the doctrine of res
judicata.
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ELECTIONS
Thompson v. Glades County School Board, July 24
Black voters in Glades County challenged the
at-large method of electing members of the County Commission and
School Board, claiming that it impermissibly depreciates their right
to vote on account of their race. The circuit holds that the court
improperly found that plaintiff's failed to make a case of vote
dilution under the Voting Rights Act because the lower court failed to
consider the possibility that cross-over votes by whites and Hispanics
could enable African Americans to elect their candidates of choice.
Also, the court failed to explain with sufficient particularity that
the totality of the circumstances weakens plaintiffs' vote dilution
claim.
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IMMIGRATION
Djonda v. US Attorney General, July 24
A citizen of Togo sought asylum and related
relief, claiming he suffered a minor beating and brief detention while
in Togo for participating in a political rally. The circuit denies the
petition. Although the evidence suggests that petitioner will be
detained upon his return to Togo, it does not compel the conclusion
that his treatment will rise to the level of persecution.
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JURY, SENTENCING
USA v. Ciszkowski, July 20
Defendant, who was convicted on charges of murder
for hire, drug dealing and firearms possession, had his sentence
enhanced because his weapon was equipped with a silencer. Defendant
claimed that he was set up by the government and that he did not know
the firearm had a silencer when he took the gun from a government
informant. The circuit holds that defendant has not shown that the
government's conduct is sufficiently reprehensible to constitute
sentencing factor manipulation. Despite defendant's claim that the
court should have instructed the jury that it had to find beyond a
reasonable doubt that he knew the firearm was equipped with a
silencer, the law does not require that defendant have specific
knowledge of the firearm's characteristics for the enhancement to
apply.
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CONSTITUTION
Gore v. Department of Corrections, July 20
Defendant claimed that his Sixth Amendment rights
were violated after he received a death sentence for his murder,
kidnapping and robbery convictions. The circuit holds that the court
correctly refused to suppress statements defendant made to detectives
in the police department. Defendant was questioned more than a year
prior to the first formal proceedings related to the murder and the
questioning was the sort of routine police investigation not reached
by the protections of the Sixth Amendment. Though the right to counsel
had been triggered by the probation violation charge, his claim that
other crimes must be included in this right to counsel is foreclosed
by the offense-specific nature of the Sixth Amendment right.
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EMPLOYMENT
Holly v. Clairson Industries, LLC, July 19
After seventeen years of strong work performance
during which defendant informally accommodated plaintiff's
disability-related tardiness since he was a paraplegic, defendant
fired plaintiff pursuant to its new, no-fault punctuality policy. The
circuit holds that issues exist as to whether strict punctuality was
an "essential function" of plaintiff's position. Also, the court
should not have granted summary judgment for defendant on the
alternative ground that plaintiff failed to provide evidence of
disparate treatment.
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EMPLOYMENT, GOVERNMENT
Epps v. Tax Commissioner, July 18
After Watson was re-elected to tax commissioner,
Epps, a clerk in the commissioner's office was fired and claimed the
dismissal was because she allowed Watson's opponent to place a
campaign sign on her property. The circuit holds that a reasonable
public official in Watson's place could not have believed that firing
Epps from her job as a clerk did not violate First Amendment law.
Thus, Watson is not entitled to dismissal on the basis of qualified
immunity with respect to Epps' First Amendment claim.
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IMMIGRATION
Jimenez v. US Attorney General, July 17
A father and daughter, members of the
Conservative Party in Colombia, received on-going death threats from
the opposing party, the Revolutionary Armed Forces of Colombia, who
also attempted to kidnap the daughter after she relocated 450 miles
away. The circuit holds that petitioners suffered past persecution on
account of their political opinion. Remanded for a determination of
whether petitioners could reasonably avoid future persecution by
relocating within Colombia. However, because the FARC's conduct was
not by, at the instigation of, or with the consent or acquiescence of
Colombian government authorities, petitioners' claim under the
Convention Against Torture fails.
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SEARCH
USA v. Herring, July 17
Relying on information from officers in a
neighboring county, officers arrested defendant on the belief that
there was a valid arrest warrant out on him, and found contraband, but
later found out that the warrant had been recalled. The circuit holds
that the good faith exception applies, as any minimal deterrence that
might result from the application of the exclusionary rule would not
outweigh the heavy cost of excluding otherwise admissible and highly
probative evidence. The failure to keep the records up to date was not
a willful act but obvious negligence by the department. Affirmed.
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DOUBLE JEOPARDY, CRIMINAL PROCEDURE
USA v. Lewis, July 17
Defendant claimed his guilty plea to robbery
foreclosed a trial on a firearm count because he was already put in
jeopardy for the robbery charge, which is a lesser-included offense of
the firearm charge. The circuit holds that defendant forfeited his
right to a double jeopardy defense, and his claim is entitled to plain
error review. Because the court treated the plea and the trial as a
single prosecution, defendant's claim fails because his plea to
robbery did not prohibit the Government's prosecution of the firearm
count in the same indictment.
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DEATH PENALTY, SECURITIES
Grayson v. Allen, July 17
A death row inmate challenged the state lethal
injection protocol and its administration through a Section 1983
action which he filed three months after the state had already
requested an execution date. The circuit holds that the inmate offered
no justification for why he could not have brought this action earlier
and his dilatory filing leaves little doubt that the real purpose is
to delay his execution, not merely to alter the manner in which the
execution is carried out.
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FRAUD, SENTENCING
USA v. Campbell, July 13
A former mayor was convicted for soliciting
undocumented payments from individuals and businesses that sought to
do business with the city and treating favorably those who paid. The
circuit holds that the court properly disqualified defense counsel
based on a conflict of interest, even if defendant wanted to waive
that conflict, since the court correctly chose to avoid a situation in
which the fairness of the trial would have undoubtedly been called
into question. Defendant's 30-month concurrent sentences were
reasonable, reflected the court's consideration of the relevant
factors, and complied with Booker standards.
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IMMIGRATION, JURY
Yang v. US Attorney General, July 12
The circuit denies a Chinese citizen's request
for asylum and related relief as he suffered no prolonged detention or
physical violence and is at little risk of physical violence, if
returned to China, for his opposition to the family planning laws in
China. Also, by his own admission to immigration officials while
detained at the airport, petitioner stated he would not be harmed if
he returned to China.
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BANKRUPTCY
Advanced Telecommunication Network v. Allen, July 9
A debtor, who sought to recover transfers made
before a company declared bankruptcy, claimed that the transfer was
fraudulent under New Jersey law. The circuit finds that the court
erroneously calculated the debtor's solvency and the value received in
return for the disputed transfer. The fraudulent transfer claims were
not barred by the statute of limitations.
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SENTENCING
USA v. Lozano, July 9
After authorities conducted controlled purchases
of counterfeit cell phone parts from two Miami retailers, the Lozanos
pleaded guilty to conspiracy to traffic in counterfeit goods and
trafficking in counterfeit goods, and received enhancements on the
basis of the amount of the infringement. Despite the Lozanos'
contention that use of the infringed item's retail value
over-represents their culpability, the circuit holds that use of the
products' retail value in the United States was supported by the
evidence and appropriate under the Guidelines. Given the length,
breadth, and depth of the Lozanos counterfeiting scheme, the 72-month
prison sentences are not unreasonable.
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FRAUD
USA v. Walker, July 6
A former state legislator was convicted of tax
evasion, fraud and conspiracy when he misused his public office for
personal gain. The circuit holds that the court correctly granted the
government's Batson challenge against four of defendants' peremptory
strikes and properly fashioned a remedy for the violation. There was
also no error with regard to the court's decisions on the sufficiency
of the indictment, or any constitutional limitations on defendant's
prosecution for the challenged counts. The supervisory role
enhancement was supported since even defendant's daughter was indicted
for her role in the fraud and pleaded guilty to tax charges related to
the scheme.
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CIVIL RIGHTS, EDUCATION
Holton v. City of Thomasville School District, July 3
Plaintiffs claimed racial discrimination in the
school's grouping of students based upon the disproportionate number
of black students placed in the lower ability groups. The circuit
holds that the lower court correctly determined that the achievement
level of the black children who have been placed in the lower
achievement groups is not a result of the previous de jure segregated
school system, and correctly found that racial imbalances within the
School District's ability-grouping program are the result of
demographic factors rather than the present effects of past de jure
segregation.
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LABOR
Sariol v. Florida Crystals Corporation, July 3
Plaintiff claimed that defendants failed to pay
overtime compensation. The circuit holds that the Fair Labor Standards
Act's agriculture exemption applies since plaintiff, who operated a
service truck to deliver fuel on sugar cane and rice fields, was
involved in a form of secondary agriculture. Thus the exemption
precluded plaintiff's recovery of overtime pay.
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BANKRUPTCY, CIVIL PROCEDURE
In re: Martin, July 3
The bankruptcy court approved a settlement
agreement over a promissory note involving the debtor, despite the
debtor's claim that he was never properly served with the underlying
lawsuit and that the bankruptcy court did not have jurisdiction to
enter its order because the trustee's abandonment of any interest in
the state court litigation divested jurisdiction and restored his
ability to proceed in that litigation. The circuit holds that the
lower court correctly approved the settlement agreement because the
settlement did not fall below the lowest point in the range of
reasonableness. Also, res judicata precludes the debtor from
re-litigating the defenses waived in the settlement agreement and
considered at the appropriate time by the bankruptcy court.
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DEATH PENALTY
Jennings v. Department of Corrections, July 3
Defendant claimed that his death sentenced for
murder unconstitutionally included the application of two invalid
aggravating factors, that the murder was "heinous, atrocious, and
cruel" and "cold, calculated, and premeditated." The circuit holds
that given the absence of statutory mitigating evidence, the presence
of two valid aggravating factors, and the heinous nature of the crime,
the "cold, calculated, and premeditated" aggravator produced no
substantial and injurious effect on the sentence.
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CONSTITUTION
USA v. Knight, July 3
A resident alien was convicted of the misdemeanor
of improperly voting in a federal election. The circuit holds that
defendant's due process rights were not violated by a deliberate
omission of a mens rea by Congress. Despite defendant's claim that a
specific intent mens rea must be read into the statute, in order to
properly separate wrongful conduct from innocent conduct, a general
intent requirement satisfies this goal. Also, no constitutional
violation occurred in the jury instructions.
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CRIMINAL PROCEDURE
Zakrzewski v. Department of Corrections, July 3
The lower court found that it lacked jurisdiction
since the motion for post-conviction relief was a second or successive
habeas petition. The circuit holds that the motion based on the claim
that counsel had committed a fraud on the court does not assert or
reassert allegations of error in his state convictions. Thus the
motion is not a second or successive habeas petition, and the court
has jurisdiction to consider the merits.
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CONSUMER LAW, CLASS ACTIONS
Culpepper v. Irwin Mortgage Corporation, July 2
Plaintiffs claimed that their mortgage lender's
payment of yield spread premiums to mortgage brokers in exchange for
delivering interest rates above the "par rate" violated the Real
Estate Settlement Procedures Act. The circuit holds that plaintiffs
have failed to provide evidence that the total compensation defendant
paid to their mortgage brokers was unreasonable in light of the
services that they provided. Also, since individual issues of fact
predominate in these types of actions, the court correctly decertified
the class.
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IMMIGRATION
Frech v. US Attorney General, July 2
A Nicaraguan national sought relief after he
entered the US in 1995, and in 1996, was charged in Miami with
overstaying his visa. The circuit lacks jurisdiction to review a
determination as to whether an applicant's status should be adjusted
under the Nicaraguan Adjustment and Central American Relief Act. Also,
while deprivation of the right to counsel or the ability to present
evidence on one's behalf in a removal proceeding might constitute a
due process violation, petitioner has not shown that he was
substantially prejudiced by any due process violation. Petition
denied.
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CLASS ACTIONS, CIVIL PROCEDURE
Jenkins v. Bellsouth Corporation, July 2
Employees of defendant Bellsouth challenged the
denial of class certification. The circuit holds that the court lacked
the authority to circumvent the ten-day deadline for obtaining
interlocutory review of the denial of class certification by vacating
and reentering that order after the original deadline for seeking
interlocutory relief had expired under the statute.
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CRIMINAL PROCEDURE
Williams v. US, July 2
The circuit holds that defendant's habeas
petition was barred by the statute of limitations and equitable
tolling was not available since he did not establish extraordinary
circumstances, and due diligence. |
