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ADMINISTRATIVE LAW
State of Minnesota v. Centers for Medicare, July 31
The state sought an increase in the annual
supplemental Medical Assistant payments made by the federal Medicaid
program to several county-owned nursing homes, and after requesting
additional information from the state, Medicaid Services disapproved
the plan amendment and denied the request for reconsideration. The
circuit holds that this request was not a new substantive rule subject
to notice and comment requirements. The increased scrutiny of the plan
amendment, including the request for additional information, was
consistent with the Secretary's authority in an individual
adjudication, and the denial of the amendment was not arbitrary,
capricious, an abuse of discretion, unsupported by substantial
evidence or contrary to law.
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SEARCH
USA v. Gallardo, July 31
The circuit holds that the officer had reasonable
suspicion to prolong defendant's detention on a traffic offense to
question him about narcotics trafficking. Defendant's consent to a
search of his vehicle was voluntary and the scope of the search did
not exceed the scope of his consent.
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SENTENCING, JURY
USA v. Johnson, July 30
Defendant was convicted for the murders of 5
people in the furtherance of a criminal enterprise and drug
conspiracy. The circuit holds that the disparity between defendant's
death sentences and co-defendant's life sentences does not violate the
Eighth Amendment, which does not require proportionality between
co-defendants' sentences. The statute giving the defense and the
prosecution an equal number of peremptory challenges does not violate
a defendant's equal protection rights, and the court properly denied
defendant's for-cause objection to a juror.
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SEX OFFENDER
USA v. Spurlock, July 30
Defendant violated federal child exploitation
statutes in connection with his attempt to entice two minors to engage
in unlawful sexual activity. Despite defendant's claim that an actual
minor must be involved in order for the government to prove the crime
of attempted enticement, the circuit holds that a defendant's belief
that the person he enticed was a minor supports an attempt conviction,
even if the actual recipient is an adult police officer posing on-line
as minor.
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ESCAPE, JURY
US v. Gonzalez, July 30
Defendant was convicted of escape twenty years
after he walked away from a prison camp and fled to the Dominic
Republic. The circuit holds that the evidence did not support
defendant's statute of limitations defense to the offense of escape,
as defendant never made any attempt to return to custody or surrender
during the twenty years he was at large. Thus, the court correctly
refused to give defendant's proposed instructions on the defense.
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EMPLOYMENT
Ollis, Jr. v. Hearthstone Homes, July 27
Plaintiff was fired after he told a senior sales
person that he was not comfortable with his employer's Mind Body
Energy sessions because they conflicted with his religion and felt
cult-like. The circuit holds that the evidence was sufficient to show
that defendant discriminated against plaintiff and retaliated against
him on the basis of his religious beliefs.
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LICENSING
Crum v. Missouri Director of Revenue, July 27
A doctor's medical license was revoked because he
failed to file state income tax returns for 3 years. The circuit holds
that the doctor had constitutionally adequate notice that his medical
license would be revoked for failure to pay state income tax, and the
state gave him the opportunity for a hearing at a meaningful time and
in a meaningful manner, and his failure to request a hearing did not
prevent the state from revoking his license without a hearing.
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SEARCH, DOUBLE JEOPARDY
USA v. Winters, July 27
Defendant was convicted of drug and tax stamp
offenses after methamphetamine was found on him and in the car he
drove, after which he was indicted on federal drug charges arising
from the same incident. The circuit holds that the court should not
have suppressed evidence seized during defendant's traffic stop as a
Terry stop was justified by the police officers' reasonable suspicion
of on-going criminal activity. Also, despite defendant's double
jeopardy claim, Iowa and the US are separate sovereigns, and double
jeopardy does not bar a federal prosecution for the same acts that
gave rise to a prior prosecution by the state.
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SENTENCING
USA v. Soperla, July 27
The circuit holds that the court should not have
sentenced defendant to probation for her drug conviction when the
applicable Guidelines range was 33 to 41 months. Such a variance was
not supported by extraordinary circumstances and failed to properly
consider statutory goals such as the need to promote respect, the need
to deter others from similar offenses and the need to avoid
unwarranted sentencing disparities.
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INSURANCE, ATTORNEY FEES
Emergency Medical v. St. Paul Mercury, July 26
Defendant, who settled plaintiff's suit for
negligent infliction of emotion distress and related claims, sought
indemnity from an insurer. The circuit holds that the negligent
infliction of emotional distress claim was covered under the
commercial general liability policy and the insurer had a duty to
defend. Neither the employee exclusion nor the exclusion for expected
or intended injury contained in the policy applied. Under Hawaii law,
the court correctly awarded the insured attorney fees but correctly
denied pre-judgment interest.
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CONTRACT
Sokol & Associates v. Techsonic Industries, July 26
After the parties entered into a sales
representative agreement regarding the sale of branded products to
customers within a specific geographic area and to certain
non-territory-based customers, plaintiff claimed defendant wrongfully
terminated the contract before the expiration of the ten-year term.
The circuit holds that the parties' agreement concerning plaintiff's
sales of defendant's products was not modified to apply to the sale of
an additional line of products, hummingbird products, and defendant
did not breach the agreement by terminating plaintiff's dealership
arrangement for that product line.
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CIVIL RIGHTS
Ngo v. Storlie, July 26
Plaintiff claimed that a police officer violated
his civil right by shooting him while he worked as an undercover
police officer. The circuit holds that the evidence allowed a
reasonable jury to find that the use of force was not objectively
reasonable. Also, an issue remains as to whether a reasonable officer
faced with the circumstances would have believed his conduct, firing a
semi-automatic weapon at a kneeling, unarmed man, was legal.
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CIVIL PROCEDURE
Eggleton v. Theurer, July 25
Plaintiff sued in Virginia state court for
personal injuries arising from his operation of defendant's railroad
maintenance machine, but when the court transferred the case to
Nebraska, defendant claimed that the suit was untimely under Nebraska
law. The circuit holds that the court should not have applied the
Virginia, rather than the Nebraska, statute of limitations since a
district to which a case is transferred must apply local choice-of-law
rules to the transferred case.
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IMMIGRATION
Mejia-Perez v. Gonzales, July 25
The Immigration and Naturalization Service did
not act on petitioner's 1994 asylum application until 2003, at which
point the petition was denied. The circuit holds that the agency's
nine-year delay in processing petitioner's application does not
constitute affirmative misconduct and could not, in the absence of
evidence of affirmative misconduct by the agency, collaterally estop
the government from denying the application.
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BANKRUPTCY
Carlson v. Kelly, July 24
The debtor moved twice for reconsideration of the
court's order approving a settlement. The circuit holds without
comment that the court correctly denied the debtor's first motion for
reconsideration, and that this renders the debtor's second motion for
reconsideration moot.
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CRIMINAL PROCEDURE
Franklin v. Luebbers, July 24
The circuit holds that the court was without
jurisdiction to grant relief on defendant's claims challenging the
voluntariness of his waiver of trial counsel and the trial court's
omission of a penalty-phase instruction because he failed to directly
appeal to the Missouri Supreme Court following his murder conviction
and death sentence. Remanded with instructions to dismiss this habeas
petition.
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EMPLOYMENT
Brown v. Fred's Inc., July 23
Plaintiff claimed her former employer's parent
company violated Title VII and the Equal Pay Act by paying her less
than her male counterparts in the assistant manager and manager
positions to which she had been promoted prior to her termination. The
circuit holds that plaintiff failed to show the parent company
actually controlled individual employment decisions regarding
plaintiff. Regarding the claim of disparate pay, a reasonable juror
could have weighed the evidence and found that the employer failed to
prove that those pay differences were based on a factor other than
sex.
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EMPLOYMENT
Kight v. Auto Zone, July 23
After plaintiff was fired, he claimed age
discrimination based on remarks by his supervisor that he was an "old
fart" and that he was too old to do his job. The circuit holds that
the court correctly refused to admit a disciplinary report which was
not part of the investigatory file and which had not been relied upon
in the decision to fire plaintiff. Also, the disparaging remarks by
the supervisor provided support the jury's $221,000 damage award.
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EVIDENCE
Spencer v. Young, July 23
In a negligence suit over a car accident, the
court denied plaintiff's motion in limine to exclude any evidence to
the effect that he was intoxicated, had a six pack of beer in the car,
and drove with no headlights on. The circuit holds that plaintiff
waived any challenge to the court's ruling on his motion in limine by
mentioning the evidence in his opening statement. In any event,
admission of evidence that plaintiff had consumed beer and that first
responders smelled alcohol on his breath was not plain error.
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CIVIL RIGHTS
Gregory v. Dillard's Inc., July 20
Black plaintiffs claimed that racially
discriminatory policies and practices at defendant's department store
denied them the same ability to purchase merchandise and access
services as enjoyed by others. The circuit holds that there was an
issue as to whether Dillard's interfered with plaintiffs' attempts to
purchase items by subjecting them to harassing surveillance and
instructing employees to follow black shoppers. Also, defendant's
store was a place of public accommodation under state law and thus the
court should not have dismissed plaintiffs' claims under the Missouri
Human Rights Act.
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IMMIGRATION
Awad v. Gonzales, July 20
The circuit holds that petitioner's misdemeanor
game and fish conviction for the illegal transportation of a loaded
firearm was a deportable violation. Petitioner's hunting rifle was a
firearm and was not excepted from that definition by the sporting
rifle exception for destructive devices.
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EMPLOYMENT
Dominic v. DeVilbiss Air Power, July 20
Plaintiff claimed that sexual harassment and
retaliation by a female supervisor persisted even after he reported
the incidents and his employer implemented a mandatory sexual
harassment seminar. The circuit holds that plaintiff failed to show
that his employer exhibited malice or reckless indifference towards
its obligations under federal law in response to his complaints of
sexual harassment. The company made good faith efforts to respond to
plaintiff's complaints, to prevent sexual harassment and retaliation,
and to fulfill its obligations under Title VII.
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TORT
Fackrell v. Marshall, July 20
Fackrell was injured when a rental car driven by
Marshall struck her in the parking lot of a gas station. The circuit
holds that Marshall, who had just finished buying fuel and was on his
way to the airport, where he was to participate in a one-hour
work-related conference call, and then fly to his home, did not act
within the scope of his employment when the accident occurred. Thus,
the employer was not liable under the doctrine of respondeat superior.
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DRUG OFFENDER, SENTENCING
US v. Hessman, July 20
Defendant was convicted of drug charges and
received 360 months. The circuit holds that the court correctly
admitted evidence of defendant's prior drug-related convictions as the
convictions went to the issues of knowledge and intent. The court's
drug quantity calculation resulted in a sentence within the guidelines
range and the court correctly found defendant was a career offender as
two of his prior convictions were properly found to be unrelated,
separate offenses.
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SEARCH, SENTENCING
US v. Walker, July 20
After his conditional plea to a firearm charge,
defendant challenged both the arrest and his 180-month sentence. The
circuit holds that defendant's erratic driving and the officer's
observations of actions which appeared to show defendant was fighting
with his passenger provided reasonable suspicion of criminal activity
and justified the traffic stop. Also, the officer did not exceed the
permissible scope of the investigatory stop by removing defendant and
his passenger from the vehicle as part of a protective search.
Sentencing was the result of the court's adequate finding that
defendant's prior convictions for auto theft and temporary auto theft
were violent felonies under the Armed Career Criminal Act.
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PRISONERS RIGHTS
Hartsfield v. Colburn, July 19
Plaintiff claimed that defendants were
deliberately indifferent to his serious medical needs when they
delayed referring him to an oral surgeon to have three teeth extracted
while he was a pretrial detainee in jail. The circuit holds that
defendants were not deliberately indifferent to Hartsfield's need for
dental care. The doctor followed standard protocol and acted in
accordance with recognized medical standards of care when the doctor
prescribed Ibuprofen and waited to see if that medication would
resolve the problem before referring plaintiff to a dentist.
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EVIDENCE, SENTENCING
USA v. New, July 18
After drinking heavily, defendant caused a
single-vehicle accident that resulted in the death of his father and
cousin. The circuit holds that defendant was not in police custody
when he made certain statements at the hospital following the
accident, and the statements were voluntarily made and were
admissible. The court correctly admitted evidence of defendant's two
prior convictions for driving under the influence as the convictions
were relevant to knowledge of risk of harm. The 144-month sentence was
not unreasonable as the sentence was within the applicable Guidelines
range and did not create disparities among similarly-situated
defendants.
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EVIDENCE
USA v. Banks, July 18
Defendant was convicted of drug related charges
and was sentenced to 55 years. The circuit holds that, despite
defendant's claim that the government engaged in a discovery
violation, the court correctly rejected defendant's claim that he did
not receive certain tape recordings. There was no dispute that counsel
had received transcripts of the recordings and took no steps to obtain
them. The court also correctly admitted a letter defendant had written
even though the letter contained references to a widely-recognized
gang because the references were vague and fleeting, and the
likelihood of prejudice was remote.
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INEFFECTIVE ASSISTANCE
Watson v. USA, July 18
Defendant claimed that he was denied effective
assistance of counsel when his counsel failed to file a notice of
appeal as instructed. The circuit holds that, if defendant asked his
attorneys to file a notice of appeal and they did not, he was denied
effective assistance of counsel and is entitled to resentencing so
that he can file a timely appeal. Remanded to determine whether he
asked counsel to file a notice of appeal after he was sentenced.
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AGRICULTURE, CONTRACT
R.D. Offutt Company v. Lexington Insurance Company, July 17
Plaintiff sued after Lexington Insurance declined
to cover expenses incurred due to a switchgear failure at a water
pumping station that was used for crop irrigation. The circuit holds
that the cost to rent generators and buy fuel was covered under the
policy because plaintiff had to rent the generators to provide a
functional equivalent of the damaged switch gear, and the expense was
not excluded by a policy term that excluded loss or damage to growing
costs.
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SEX OFFENDER, SECURITIES
USA v. Boston, July 17
Defendant was convicted for the production of
child pornography. The circuit holds that the court's findings that
credited the officer's testimony that he observed defendant masturbate
in public were virtually unreviewable. The officer's observations,
plus defendant's statements that he had a knife and naughty pictures
of children in his backpack, provided probable cause for the search
and seizure of defendant's backpack. Also, the child victim's pretrial
identification of defendant was admissible as the photo lineup was not
unduly suggestive. The court correctly imposed an enhancement for
sexual contact with a minor.
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ATTORNEYS, CRIMINAL PROCEDURE
White v. Department of Corrections, July 17
An inmate claimed he was denied access to courts
when an attorney provided limited advice because the prison did not
have a law library and that the attorney failed to fully inform the
inmate that a claim for post-conviction relief regarding improper
extradition would allow the prosecution to bring additional charges
under his plea. The circuit holds that the inmate could not show that
the contract-attorney system actually caused him an injury, since the
claims he sought to assert were frivolous.
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EVIDENCE
USA v. Singh, July 13
The circuit holds that the evidence supported
defendant's convictions for conspiracy and distribution of
methamphetamine. A co-defendants' out-of-court statements were
correctly admitted, and even if the admission of certain other hearsay
evidence was error, the admission was harmless in light of the other
evidence.
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SEARCH
USA v. Grant, July 13
The circuit holds that evidence seized from
defendant's computer was admissible as the affidavit supplied in
support of the search warrant application was sufficient to establish
probable cause that the computer contained child pornography. Even if
the affidavit was insufficient, the Leon good-faith exception applied.
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CONTRACT, JURY
SL Montevideo Technology v. Eaton Aerospace, July 12
Plaintiff, which refused to bid on defendant's
motor design project for airplanes, claimed that defendant
misappropriated trade secrets and breached a Proprietary Information
Agreement by the manner in which defendant obtained a redesigned motor
from another supplier. The circuit holds that, without evidence that
specific data contained within documents marked proprietary was both
protected by the agreement and disclosed, the court properly ruled
that plaintiff failed to present evidence from which a reasonable jury
could find that defendant breached the agreement.
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CIVIL RIGHTS, JURY
Shockency v. Fletcher, July 12
Officers Moore and Shockency claimed that Sheriff
Fletcher committed retaliatory employment actions after Moore ran
against Fletcher in the 2002 election and Shockency supported him. The
circuit holds that the challenged conduct rose to the level of adverse
employment actions in retaliation for plaintiff's exercise of First
Amendment rights, and the lower court correctly denied defendant
qualified immunity. The circuit has no jurisdiction to address the
county's immunity defense on interlocutory appeal.
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EVIDENCE, JURY
USA v. Milam, July 12
The circuit holds that the evidence, including
phone records, was sufficient to support defendant's conviction for
aiding and abetting the possession of methamphetamine with intent to
distribute. The court correctly denied the motion for mistrial based
on defendant's claim that the court should not have allowed the jury
to recess at the end of the first day of deliberations without asking
them whether they could reach a verdict.
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CONSPIRACY, ROBBERY
USA v. Zackery, July 12
The circuit holds that the evidence supported
defendant's conviction under the Pinkerton theory of conspirator
liability for his attempted robbery, even though the indictment did
not charge a conspiracy offense. His accomplice's use a firearm in
furtherance of their conspiracy to commit a bank robbery was
reasonably foreseeable.
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CONFRONTATION, CRIMINAL PROCEDURE
Greer v. State of Minnesota, July 12
Following his murder convictions, defendant
claimed that the court should not have found that he waived a claim of
judicial bias and that his right of confrontation and his right to
testify on his own behalf were improperly denied. The circuit holds
that the witness in question provided limited testimony and the facts
surrounding her conviction were ultimately disclosed under
cross-examination, and thus the court's rulings were not unreasonable
applications of clearly established federal law. The claim that the
trial judge was actually biased against defendant was procedurally
barred.
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EMPLOYMENT, JURY
Harrison v. United Auto Group, July 11
A black man claimed defendant failed to hire him
as general manager and for management positions that arose later. The
parties engaged in several conversations about the available positions
but did not agree on salary. The circuit holds that plaintiff'
admitted that he rejected the offer and thus defendant had a
legitimate nondiscriminatory reason not to hire him. Summary judgment
for defendant was proper.
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BANKRUPTCY
Benn v. Cole, July 10
The Chapter 7 debtors claimed that their state
and federal income tax refunds were exempt from the bankruptcy
estates, while the trustee in both cases claimed that the refund
amounts were part of the estates to be distributed by him. The circuit
holds that the bankruptcy debtors' anticipated tax refunds, to the
extent they are attributable to events occurring before the filing of
the petition, are part of the bankruptcy estate, as there is no
exemption for tax refunds under state law or applicable federal law.
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SENTENCING
US v. Icaza, July 10
Defendants traveled across the US shoplifting
over-the-counter medicines and other items from a multitude of retail
stores. The circuit holds that the court should not have treated each
of the 407 Walgreens stores where defendants shoplifted as a separate
victim for purposes of the number-of-victims enhancement. Remanded.
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US v. Jones, July 10
The court sentenced defendant to 140 months on a
plea to cocaine distribution. The circuit holds that the court
adequately considered the factors to set defendant's sentence,
including defendant's history and characteristics, his role in the
offense and the need to avoid unwarranted sentencing disparities.
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IMMIGRATION
Ikenokwalu-White v. Gonzales, July 9
Edy sought to avoid removal to Nigeria while her
US citizen son sought to secure an immediate relative visa on her
behalf. The circuit lacked jurisdiction to review the denial of Edy's
request to continue her removal hearing, and also lacked jurisdiction
to review the immediate relative petition case filed by Edy's son
because the case does not involve an order of removal. The son cannot
indirectly invoke jurisdiction based on Edy's case when Edy herself
cannot establish jurisdiction.
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GOVERNMENT
Greer v. Chao, July 9
The Office of Federal Contract Compliance
Programs promptly discharged its duty to conduct an investigation into
Greer's complaint under the Vietnam Era Veterans Readjustment Act of
1974, and the Secretary of Labor's response to the investigation,
determining that there was no violation of the Act, was a decision
committed to agency discretion and was immune from judicial review.
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DEATH PENALTY
Nooner v. Norris, July 9
The circuit holds that the court should not have
granted a preliminary injunction that stayed Davis's execution so that
he could litigate the constitutionality of Arkansas's lethal injection
protocol, as Davis had failed to assert his claim in a timely fashion
and was not entitled to equitable relief.
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EVIDENCE, SENTENCING
US v. Harris, July 9
The circuit holds that the evidence was
sufficient to support defendant's conviction for conspiracy to
distribute crack, and the court correctly imposed an enhancement for
possession of a dangerous weapon. The resulting 292-month sentence was
not unreasonable, as it was within the advisory guidelines range.
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CRIMINAL PROCEDURE
In re Green Grand Jury Proceedings v. Green, July 6
After the court admitted over 100 documents in
response to a motion to compel, defendant challenged this ruling on
grounds of attorney work product. The circuit holds that the
crime-fraud exception applies to attorney work product, and here,
defendant had used his attorney's assistance to perpetrate a crime,
and therefore cannot assert the work product privilege as to any
document generated in furtherance of his misconduct.
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ERISA
Ratliff v. Jefferson Pilot Financial Insurance, July 6
An accountant was fired when he reduced his work
hours based on his doctor's recommendation that he should reduce
stress following bypass surgery. Even though the doctor wrote a note
that plaintiff was not disabled, plaintiff sought disability benefits.
The circuit holds that an abuse of discretion standard applies because
the suit involves the plan administrator's review of medical records.
The decision to deny benefits was based on a reasonable explanation,
which was supported by substantial evidence.
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EMPLOYMENT
Equal Employment Opportunity Commission v. Convergys Customer, July 6
Plaintiffs claimed that defendant failed to
accommodate Demirelli, who was confined to a wheelchair, in violation
of the Americans with Disabilities Act. The circuit holds that the
information Demirelli provided defendant and the suggestions he made
to accommodate his disability were sufficiently detailed to meet his
responsibilities under the Act. There was sufficient evidence to show
that the accommodation suggested by plaintiff, extra time for him to
return from lunch, was reasonable.
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EMPLOYMENT
Devin v. Schwan's Home Service, July 6
The circuit holds that plaintiff failed to
establish a prima facie case of retaliation as she did not show that
she suffered a materially adverse employment action in retaliation for
her discrimination complaint based on a job assignment she did not
like. Plaintiff also failed to establish a hostile work environment
claim as she presented no evidence of workplace conduct which rises to
the level of actionable harassment. She also did not show that she had
suffered an adverse employment action and the court correctly rejected
plaintiff's argument that she was constructively discharged.
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ERISA
Meyers v. Hartford Life & Accident Insurance Company, July 6
The circuit holds that there was considerable
medical evidence to support the decision to deny plaintiff benefits in
light of the equivocal nature of one doctor's opinion about whether
plaintiff's pain would prevent her from performing the duties of her
previous job and his evident conclusion in his conversation with
another doctor that pain was her only potentially disabling condition.
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IMMIGRATION
Sholla v. Gonzales, July 5
An Albanian claimed past persecution and a fear
of future persecution if he returned to Albania. The circuit holds
that any reasonable fact finder could conclude that petitioner
suffered past persecution as a result of his political beliefs when he
was beaten repeatedly for his activities with the Democrats, and the
immigration judge should not have refused to give petitioner the
presumption of a well-founded fear of future persecution if he
returned to Albania. Remanded.
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CONSPIRACY, JURY
USA v. Ramon-Rodriguez, July 5
Four defendants in a drug distribution conspiracy
challenged their convictions and sentences after a joint trial. The
circuit holds that the court correctly gave a willful blindness
instruction as one of the co-conspirators claimed ignorance of the
conspiracy, and even if erroneous, the instruction would not have
affected defendant's substantial rights given the overwhelming
evidence of guilt.
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DRUG OFFENDER, SENTENCING
USA v. Minnis, July 5
After the court denied defendant's request for a
psychiatric evaluation, defendant pleaded guilty to drug and related
charges. The circuit holds that the court properly denied a motion for
a psychiatric exam in light of the hearing testimony and the court's
ability to observe defendant. The court's drug quantity calculations
were correct and the court properly imposed an enhancement for
possession of a firearm, as well as an upward adjustment for
obstruction of justice.
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EVIDENCE
USA v. Piwowar, July 5
The circuit holds that the evidence supported
defendant's firearm conviction, as a reasonable jury could find
defendant constructively possessed the firearms and ammunition seized
from his business property. Despite defendant's claim that he never
touched or even looked at the ammunition found in his refrigerator, he
owned the building where the refrigerator was located and possessed
the sole key to the refrigerator.
------------------------------
ERISA
Weidner v. Federal Express, July 3
After undergoing carpal tunnel surgery,
plaintiff's employer denied her claim for total disability benefits
under the company's long term disability plan. The circuit holds that
the court correctly reviewed the plan administrator's decision under
the deferential abuse of discretion standard, as there was no
procedural irregularity and plaintiff failed to show the administrator
had a conflict of interest. Also, the medical evidence did not contain
significant objective findings of total disability, as the Plan
required.
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EMPLOYMENT
Ganley v. Minneapolis Park, July 3
Police officers claimed that defendant improperly
denied them higher initial placement on the salary schedule and more
vacation time when they started work as police officers with the Park
Board. The circuit holds that defendant did not violate plaintiffs'
equal protection or due process rights as the determination regarding
vacation and salary status was made under the relevant contract
provisions and Minnesota statutes governing transfers and retirements
from the Minneapolis Police Department.
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MIRANDA
USA v. Torres-Lona, July 3
After his plea to making a false statement to
immigration officers, defendant claimed that the court denied
suppression of his post Miranda statement which led to his indictment
and that his arrest was not lawful. The circuit holds that the
statement was knowingly and voluntarily made, defendant never
challenged the determination on appeal, and the statements were not
coerced. Also, probable cause existed to support a belief that
defendant violated immigration laws and his arrest and the search
incident to the arrest were thus lawful.
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EMPLOYMENT
McPherson v. O'Reilly Automotive, July 2
Plaintiff hurt his back and defendant fired him
because the employer had no open position for someone with his medical
restrictions. The circuit holds that when there are no vacant
positions for which an individual with a disability qualifies, the
employer is not required to retain the individual and create a new
position for him under the Americans with Disabilities Act. Also,
plaintiff failed to support his claim that defendant violated the Act
by giving out confidential information to prospective employers.
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TAX
RJT Investments v. Commissioner of Internal Revenue, July 2
The circuit holds that the Tax Court correctly
determined that, as a partnership item, RJT Investments X, LLC was a
sham, lacked economic substance and was formed to artificially
overstate the basis of the interest of its tax matters partner for tax
avoidance. Examples of such legal and factual determinations falling
within the partnership item ambit include the partnership's method of
accounting, inventory method, and even whether partnership activities
have been engaged in with the intent to make a profit.
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SENTENCING
USA v. Mills, July 2
The circuit holds that the lower court correctly
refused to consolidate defendant's state burglary offenses for
sentencing purposes. The court should not have departed on a ground
not stated in the court's statement of reasons at the first
sentencing. The government's request to reassign this case to a new
judge for sentencing is denied.
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SENTENCING
USA v. Chibukhchyan, July 2
The circuit holds that the lower court correctly
used defendant's state convictions for forgery and giving false
information to law enforcement to enhance his sentence under the
Guidelines. The state convictions were distinct and severable from his
present conviction for possession of a fraudulently obtained employee
authorization card, despite arising out of the same circumstances. |
