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Edit Delete 10th Circuit

RESTITUTION, FRAUD

U.S. v. Ferdman, Feb-13-2015

J. Baldock finds the lower court improperly awarded $48,000 in damages to Sprint after defendant's fraudulent cell phone reselling scheme. There is not sufficient proof that Sprint lost actual retail sales as a result of the crime. Furthermore, any losses should have been calculated using Sprint's "at-cost" pricing rather than retail pricing. Reversed.

Edit Delete 1st Circuit

PLEA, FIREARMS

U.S. v. Duquette, Feb-13-2015

J. Thompson finds that the lower court properly sentenced defendant following his guilty plea to being a felon in possession of firearms. His 14-year-old daughter was worried that he would follow through on a threat to kill their mother, which led to the discovery of these guns by police. The plea was voluntary, and defendant was fully aware of the consequences. Affirmed.

Edit Delete 1st Circuit

CONSPIRACY, DRUG OFFENDER

U.S. v. Burgos-Figueroa, Feb-13-2015

J. Selya finds that the lower court properly sentenced defendant for possessing a dangerous weapon during drug trafficking. A sentencing enhancement need not be proved beyond a reasonable doubt, but only based on a preponderance of the evidence. Given his involvement in the underlying conspiracy, the district court could plausibly infer that defendant was an overseer and helped wage war against rival gangs. Given this, and the large amount of drugs involved, it is not credible that he had no idea that his co-conspirators carried firearms. Affirmed.

Edit Delete 1st Circuit

ROBBERY, BURGLARY

Cooper v. Bergeron, Feb-13-2015

J. Howard finds that the lower court properly denied petitioner habeas on his armed robbery and burglary convictions and sentences. The police did not coerce defendant into confessing, and at most there was a question of his confession's reliability, which is best left to the jury. Affirmed.

Edit Delete 1st Circuit

FIREARMS, DRUG OFFENDER, PLEA

U.S. v. Diaz-Bermudez, Feb-13-2015

J. Kayatta finds that the lower court properly sentenced defendant for firearm possession in furtherance of drug trafficking. The plea was knowing, voluntary and soundly strategic given that he was found in possession of over 700 small bags of cocaine. His claim that he did not know what he was transporting indicated a refusal to accept responsibility given that he was the vehicle's sole passenger. Affirmed.

Edit Delete 1st Circuit

FAMILY LAW, INTERNATIONAL LAW

Mendez v. May, Feb-13-2015

J. Stahl finds that the lower court improperly ordered petitioner's child returned to Argentina in her opposition to the father's International Child Abduction Remedies Act petition to do so. Although petitioner never fully agreed to allow the child to move to the United States, it was still his habitual residence. Removal under this international treaty is only allowed if the child is being retained in a country that is not a habitual residence. Based on the parties' customs and agreements, the child no longer resides in Argentina. Reversed.

Edit Delete 1st Circuit

DUE PROCESS, BUSINESS PRACTICES, LICENSING

Caesars Massachusetts Management v. Crosby, Feb-13-2015

J. Souter finds that the lower court properly dismissed plaintiff's challenge to the Massachusetts Gaming Commission's finding that it is "unsuitable" to operate a casino. The Fifth and Fourteenth Amendments do not give one a cognizable property interest in running a casino. Cases regarding issues like the administrative process to get a permit to construct a dock are not relevant since a casino is an extraordinary business that can place nearby commerce at risk and that can have bad social ramifications. Affirmed.

Edit Delete 1st Circuit

DRUG OFFENDER, FIREARMS, SENTENCING

U.S. v. Vazquez-Laurrauri, Feb-13-2015

J. Kayatta finds that the lower court properly convicted defendant of drug and firearm offenses, but improperly sentenced him for the latter. Given his leadership role in a conspiracy to distribute drugs in a Puerto Rican housing project in which drugs and crime are endemic, the court reasonably applied a leadership enhancement to his sentences. The prosecution did not improperly vouch for government witnesses simply by restating its claim that its case was stronger than defendant's, which relied largely on unsubstantiated testimony. A modification is required for the firearm sentence, but not with respect to the others, which means he still faces multiple concurrent life sentences. Affirmed in part.

Edit Delete 1st Circuit

IMMIGRATION

Ramirez-Matias v. Holder, Feb-13-2015

J. Selya finds that the lower court properly ordered petitioner removed from the country and denied his Nicaraguan Adjustment and Central American Relief Act claim. Leaving Guatemala to avoid civil war did not automatically entitle him to relief since nothing showed that he was personally threatened or physically harmed. Similarly, the claim that he will not be able to take care of his special needs child as well in Guatemala is not grounds for relief. He cannot claim unfair prejudice by the court's decision to bring his moral character into issue since he did so himself, and his past domestic violence charges are relevant. Affirmed.

Edit Delete 2nd Circuit

CIVIL RIGHTS, EMPLOYMENT

Velazco v. Columbus Citizens Foundation, Feb-13-2015

Per curiam, the circuit finds that the district court improperly found against plaintiff's claim of age discrimination in firing without separately reviewing the allegation under the New York City Human Rights Law. Since 2005 and passage of the Local Civil Rights Restoration Act, the Law has been broadly construed in favor of plaintiffs, even if the claimed discrimination is not actionable under federal and state human rights statutes. Because it was unclear whether the separate review was made, the claim must be remanded. Vacated in part.

Edit Delete 3rd Circuit

EMPLOYMENT, ADMINISTRATIVE LAW

Equal Employment Opportunity Commission v. Allstate Insurance Company, Feb-13-2015

J. Hardiman finds that the lower court properly found for defendant in a suit brought by the EEOC alleging that the insurance company's reorganization violated federal antiretaliation laws. Defendant reorganized in 1999, terminating the employment contracts of 6,200 employees and instead offering them the opportunity to work as independent contractors. As a condition of becoming an independent contractor, agents were required to sign a waiver of all existing legal claims against defendant. The EEOC failed to state any good reason why an employer cannot require a release of discrimination claims by a terminated employee in exchange for a new business relationship with the employer. Affirmed.

Edit Delete 4th Circuit

SENTENCING, MURDER, ASSAULT

U.S. v. Burns, Feb-13-2015

J. Duncan finds that the lower court properly sentenced defendant for being a felon in possession of a firearm using the guideline range for attempted murder. Defendant argued that the court should have used the guidelines for aggravated assault, so the court denied him a downward adjustment for accepted of responsibility. Although he pleaded guilty to the offense, he falsely denied relevant conduct attributable to him, insofar as the court found that he shot with intent to kill. Therefore, defendant is not entitled to the downward departure. Affirmed.

Edit Delete 5th Circuit

IMMIGRATION, SENTENCING

U.S. v. Fidse, Feb-13-2015

Per curiam, the circuit finds that the lower court improperly applied a sentencing enhancement after defendant pleaded guilty to two obstruction offenses that was "intended to promote a federal crime of terrorism." The Somalian-born man lied to government officials when he arrived at the Hidalgo, Texas port of entry with claims that he was fleeing Somali because he was terrified after the Islamic Courts killed his father. The story was not only false, but defendant also "had ties to one of the groups engaging in that persecution - al Shabaab." However, since there are uncertainties with the facts alleged to support the sentencing enhancement, including defendant's purchase of an armed vehicle, the district court must clarify its findings. Therefore, defendant's 120-month sentence is vacated, and the case remanded, to determine whether the record supports the conclusion that defendant's false statements obstructed "an investigation into a federal crime of terrorism." Vacated.

Edit Delete 5th Circuit

DEATH PENALTY, MURDER

Loden v. McCarty, Feb-13-2015

J. King finds that the lower court properly dismissed defendant's writ of habeas corpus petition after pleading guilty to the 2000 rape and murder of a Mississippi waitress. After defendant's wife informed him she had engaged in "phone sex" with another man while defendant was away visiting his ailing mother, he spotted a waitress on the side of the road that he had met earlier, kidnapped her in his van and proceeded to brutally raping and strangling the woman to death. Police discovered a video tape that defendant used to record a large portion of the crime. He was sentenced to death. Defendant claimed his constitutional rights were violated by an ineffective assistance of counsel based on their failure to offer mitigating circumstances during the sentencing phase and for inaccurately advising him of his appellate rights. However, it was upon defendant's instructions that his attorney not present a mitigation case, instead opting to make a statement apologizing to the victim's family. Additionally, there is evidence the defendant understood his appellate rights. Affirmed.

Edit Delete 7th Circuit

IMMIGRATION, ADMINISTRATIVE LAW

Sibanda v. Holder, Feb-13-2015

J. Wood finds that the Board of Immigration Appeals improperly denied petitioner asylum and relief from removal. She claims that if she is deported back to Zimbabwe, her brother-in-law will attempt to rape her since her husband, his brother, has died. This is apparently allowed under certain tribal customs. The board unreasonably demanded that she produce a supporting police report since she claimed that the police twice told her that they would not help, and the board acknowledged her credibility. The immigration judge should not have quizzed petitioner about such marital customs based on an unsubstantiated Wikipedia article either. Reversed.

Edit Delete 7th Circuit

ROBBERY, FIREARMS

U.S. v. Wilbourn, Feb-13-2015

J. Posner finds that the lower court properly convicted defendant of bank robbery and brandishing a firearm and properly enhanced his sentence based on his pretending to be mentally incompetent in an effort to delay the trial. Although his wife testified that he "was difficult to communicate with," this does not amount to the iota of evidence required to support a competence claim. Affirmed.

Edit Delete 8th Circuit

BANKRUPTCY, INSURANCE

Matter of Miller v. , Feb-13-2015

J. Gruender finds that the Bankruptcy Appellate Panel properly upheld the bankruptcy court's exemption of a life insurance annuity from the debtor's estate. If retirement funds are held in certain qualified programs, they can be exempt from creditors' claims. Some cases hold that premiums in excess of certain limits lead to disqualification, but none of these are precedential. Affirmed.

Edit Delete 9th Circuit

IMMIGRATION, AGENCY

Gonzalez v. Holder, Feb-13-2015

J. Reinhardt finds that plaintiff's petition for review of a Board of Immigration Appeals ruling should be granted. The board improperly found that plaintiff's conviction for weapons possession "constituted a categorical crime involving moral turpitude."

Edit Delete Alabama Supreme Court

WILLS / PROBATE, JURISDICTION

Baker v. Estate of Higgins, Feb-13-2015

J. Bolin finds that plaintiff was properly denied an appointment as personal representative of her mother's estate. The lower court removed the case from probate court and appointed someone who was not related to defendant as administrator. However, the lower court lacked jurisdiction to consider the matter.

Edit Delete Alabama Supreme Court

BURGLARY, SENTENCING

Harper v. Alabama, Feb-13-2015

J. Moore grants defendant a writ of certiorari after the circuit court denied him sentence reconsideration. In 1986, plaintiff was sentenced to life in prison under the Habitual Felony Offender Act, but during his 28 years of incarceration, he has completed numerous rehabilitative programs and counseling courses that the circuit court did not consider when making its ruling. Although defendant's crime was considered "violent," he is currently a "nonviolent convicted offender" and his sentence should be reconsidered. Reversed.

Edit Delete Alaska Courts Of Appeal

BAIL

Simmons v. Alaska, Feb-13-2015

J. Mannheimer holds that the lower court improperly denied defendant post-conviction bail. The court effectively gave the prosecutor unilateral power to decide if defendant should be released or put in jail when the judge said he would remand defendant unless the prosecutor stipulated that he should be released on bail. Reversed.

Edit Delete Alaska Supreme Court

MURDER, SELF INCRIMINATION, PROSECUTORIAL MISCONDUCT

Goldsbury v. Alaska, Feb-13-2015

J. Fabe finds that the trial court properly convicted defendant of attempted murder. Defendant claims that the prosecutor's remark during closing arguments violated defendant's right against self-incrimination. The prosecutor said that, while two people knew what happened the night in question, only the victim testified. But this error was harmless beyond a reasonable doubt because it was brief and isolated, and was cured by jury instructions. Affirmed.

Edit Delete California Courts Of Appeal

DISABILITY DISCRIMINATION, EMPLOYMENT

Nealy v. City of Santa Monica, Feb-13-2015

J. Flier finds that a trial court correctly dismissed plaintiff's disability discrimination action against defendant. Aside from the fact that some of plaintiff's claims fell outside the statute of limitations, plaintiff could not be reasonably accommodated because he could not perform any of the essential functions of his job due to his injury. Because plaintiff raised no triable issues of fact regarding whether he could be reasonably accommodated to perform essential functions or that defendant discriminated against him, dismissal was warranted. Affirmed.

Edit Delete California Courts Of Appeal

GOVERNMENT, CONTRACT

Torres v. City of Montebello, Feb-13-2015

[Consolidated.] J. Kitching finds that a trial court correctly invalidated a commercial garbage contract defendant's city council gave to the real party in interest, because defendant's mayor never signed off on the contract. While defendant's attorney advised the mayor he had a duty to sign the contract and would be considered "absent" if he refused, opening the door for the vice mayor to sign it, state law does not give either the city attorney or the vice mayor the authority to deem the mayor "absent," making the vice mayor's signature on the contract invalid. Affirmed.

Edit Delete Court Of Appeals For Veterans Claims

VETERANS

Pederson v. McDonald, Feb-13-2015

J. Moorman finds that the Board of Veterans' Appeals properly denied appellant a total disability rating based on individual unemployability. Though appellant's knee disabilities impaired his ability to work, they did not render him unemployable. Affirmed.

Edit Delete Court Of Federal Claims

TAX

Duffy v. U.S., Feb-13-2015

J. Lettow finds that plaintiff is not entitled to a $13,000 income tax refund for a 2007 settlement with plaintiff's former employer. Plaintiff argues the income was not taxable because it was on account of stress and other "physical sickness" he suffered after his former employer fired him. The record shows, however, the settlement was for plaintiff's wrongful termination claims, not for any "injury or sickness" plaintiff suffered from being fired.

Edit Delete Court Of Federal Claims

CONTRACT

Draken International v. U.S., Feb-13-2015

J. Williams finds that the company's pre-award bid protest over the government's bid for the supply of aircraft and personnel for training should be dismissed. The company argues the bid is unfairly constructed to favor the incumbent contractor, which would be a violation of the Competition in Contracting Act. However, the record shows the government has broad discretion to define its needs, and it has justified all of the requirements in the bid solicitation.

Edit Delete DC Circuit

CIVIL RIGHTS, IMMUNITY

Fenwick v. Pudimott, Feb-13-2015

J. Tatel finds that the lower court improperly denied three deputy federal marshals immunity in a civil rights suit. At age 16, plaintiff pulled into a parking lot where defendants were waiting to enforce an eviction order. The officers suspected him of driving a stolen vehicle because he looked young and had trouble parking the car. The officers called out to him, but he ignored them. They rushed him with guns drawn, but he did not halt, clipped one of them with his side view mirror, and they opened fire. Because plaintiff was endangering the officers' lives by the way he was driving, the use of force was reasonable and not excessive. Reversed.

Edit Delete Florida Courts Of Appeal

FAMILY LAW

Juchnowicz v. Juchnowicz, Feb-13-2015

J. Casanueva finds that the lower court improperly calculated the husband's alimony obligation, and required him to secure the alimony award with a life insurance policy. The court determined the wife's need based on her postseparation lifestyle rather than the standard of living enjoyed during the marriage. The result of the alimony award is a great disparity in monthly income for the wife and husband. Given the husband's income, he is able to contribute more so that the wife's standard of living may be more approximate to that enjoyed during the marriage. Reversed.

Edit Delete Florida Courts Of Appeal

CONSTRUCTION, CONTRACT, ATTORNEY FEES

Ray Coudriet Builders v. R.K. Edwards, Feb-13-2015

J. Evander finds that the trial court improperly dismissed the homebuilder's claim against the subcontractor for alleged drywall defects in a home. Although the homebuilder's complaint concedes that the subcontractor "finished" the work per the contract, the work was done improperly. The subcontractor also should not receive attorney fees. Reversed.

Edit Delete Florida Courts Of Appeal

FAMILY LAW

Maguire v. Wright, Feb-13-2015

J. Lambert finds that the trial court properly awarded temporary custody of the couple's child to the mother. The father was allowed to take the child to the United Kingdom over the summer, but was to return the child by August. Despite the child's insistence on staying, the father did not follow the order and must return the child. Affirmed.

Edit Delete Florida Courts Of Appeal

FAMILY LAW, DUE PROCESS

Baker v. Baker, Feb-13-2015

Per curiam, the court of appeals finds that the trial court improperly transferred temporary custody of the couple's children to the mother. The mother failed to prove why the situation should change. Also, the modification occurred at a hearing that was not a modification proceeding. Reversed.

Edit Delete Florida Courts Of Appeal

JURISDICTION

ILD Corp. v. New Link Network, Feb-13-2015

J. Silberman finds that the lower court improperly denied defendant's motion to change venue without considering defendant's claim that St. John's County is a more convenient forum than Pinellas County. Reversed in part.

Edit Delete Florida Courts Of Appeal

NEGLIGENCE

Villanueva v. Reynolds, Smith and Hills, Feb-13-2015

J. Wallis finds that the trial court improperly ruled appellee's road design plans did not contribute to the death of appellant's family member. Due to the conflicting evidence about what parts of the road were completed by appellee or the county, summary judgment was inappropriate. Reversed.

Edit Delete Florida Courts Of Appeal

COMPETENCE, SEX OFFENDER

Roman v. State, Feb-13-2015

J. Kelly finds that the lower court improperly convicted defendant of sexual battery on a person under 12, lewd molestation, and battery. Defendant was initially declared incompetent, and committed to a treatment facility. An expert reported that defendant regained competency a couple months later, but the court never held a hearing to discuss defendant's competent before trying him. The court improperly assumed that defense counsel had investigated defendant's competence. Reversed.

Edit Delete Florida Courts Of Appeal

FAMILY LAW, CONTEMPT

Haeberli v. Haeberli, Feb-13-2015

J. Orfinger finds that the trial court improperly granted the wife's motions for contempt. The husband was not given sufficient notice of these motions. Reversed.

Edit Delete Florida Courts Of Appeal

PROPERTY

Department of Transportation v. Mid-Peninsula Realty Investment Group, Feb-13-2015

J. Morris finds that the lower court properly found for defendant in a suit to quiet title to property conveyed in 1974 via a "wild deed" after the department obtained the property through eminent domain. Evidence that the department's employees occasionally traversed the parcel to access a canal is not sufficient to establish possession of the land. Nor does the right-of-way exception to the Marketable Record Title to Real Property Act apply in this case. Affirmed.

Edit Delete Florida Courts Of Appeal

SEARCH, DRUG OFFENDER, FIREARMS

Oliver v. State, Feb-13-2015

J. Cohen finds that the trial court improperly ruled that the police officers did not seize defendant prior to conducting a search for drugs. One of the officers ordered defendant three times to keep his hands on the dashboard, which amounts to a seizure. Therefore, the search that came afterward violated his Fourth Amendment rights. Reversed.

Edit Delete Florida Courts Of Appeal

INSURANCE

Liberty Mutual Fire Insurance Co. v. Martinez, Feb-13-2015

J. Cohen finds that the trial court improperly ruled in favor of the homeowners in a storm damage claim. The homeowners allege their pool shell came out of the ground and damaged elements of their yard. The insurance policy specifically excludes damage caused by underground water pressure, whether directly or indirectly. Reversed.

Edit Delete Florida Courts Of Appeal

PROBATION, SEX OFFENDER

Rivera v. State, Feb-13-2015

J. Silberman finds that the lower court properly revoked defendant's community control for being out past curfew, being away from his residence without permission, and living in a non-approved area. These terms, imposed upon him after he pleaded guilty to impregnating a 14-year-old girl, required that he sleep in a parking lot in his grandmother's van because both his grandmother's and father's homes were too close to a park or school. Substantial evidence supports the finding that defendant willfully violated the terms of his community control by going to his father's home for the night. Affirmed.

Edit Delete Georgia Court Of Appeals

CRIMINAL PROCEDURE

Grooms v. State, Feb-13-2015

Per curiam, the court of appeals finds that defendant's appeal must be dismissed as abandoned. Defendant failed to file his brief and enumeration of errors.

Edit Delete Georgia Court Of Appeals

CRIMINAL PROCEDURE

Williams v. State, Feb-13-2015

Per curiam, the court of appeals finds that defendant's appeal in a cocaine possession case must be dismissed. Defendant's sentence fell within statutory parameters.

Edit Delete Idaho Court Of Appeals

DRUG OFFENDER, EVIDENCE

Idaho v. Bradley, Feb-13-2015

J. Gratton finds that the district court properly admitted as evidence audio recordings from phone conversations between defendant and an informant in his trial for selling methamphetamine. Defendant speculates on appeal that the phone calls could have been modified, but does not show specific evidence pointing to that claim. The state did not need to establish a familiarity with defendant's voice before the recording was made. Affirmed.

Edit Delete Indiana Court Of Appeals

SEX OFFENDER, EVIDENCE, WITNESS

Wise v. Indiana, Feb-13-2015

J. Bailey finds that the trial court properly convicted defendant of rape. The trial court laid a proper foundation of evidence to identify defendant in cell phone videos that were admitted as evidence. Also the cell phone nor the videos showed any sign of tampering and thus were properly allowed as evidence. Finally, defendant had ample opportunity to cross examine the witness who identified him in the video tape, and challenge the claim. Affirmed.

Edit Delete Indiana Court Of Appeals

FIDUCIARY DUTY, CIVIL PROCEDURE, PROPERTY

Jaffri v. JPMorgan Chase Bank NA, Feb-13-2015

J. Barnes finds that the trial court properly dismissed the counter claims against the bank in a foreclosure action. First, because the parties had a contract, the negligence counter claim was an improper charge and was property dismissed. Also, defendant failed to show that the contract imposed a special fiduciary duty upon the bank. Affirmed.

Edit Delete Indiana Court Of Appeals

MEDICAL MALPRACTICE, EXPERTS

Beckerman v. Surtani, Feb-13-2015

J. Najam finds that the trial court properly ruled in favor of defendant in plaintiff's motion to recover trial costs from a medical malpractice lawsuit. The court had already set forth the amount each party would pay for an expert medical witness, and the findings set forth a maximum that would be paid by defendant. Therefore, the court properly ruled in favor of defendant as he paid his ordered share of the costs. Affirmed.

Edit Delete Indiana Court Of Appeals

ANIMAL CRUELTY, RESTITUTION, SENTENCING

Bickford v. Indiana, Feb-13-2015

J. Bailey finds that the trial court properly sentenced defendant on animal cruelty charges. The court was within its discretion to sentence defendant pay restitution costs for the care of the horses that she treated with neglect, because the horse rescue incurred costs to care for the animals. Affirmed.

Edit Delete Indiana Court Of Appeals

ATTORNEY FEES, DAMAGES, NEGLIGENCE

Gilday v. Motsay, Feb-13-2015

J. May finds that the trial court awarded the plaintiff proper damages resulting from a car collision. The court properly awarded plaintiff the damage done to their vehicle and did not award pre-judgment interest because it was not warranted. Also plaintiff was not entitled to attorney fees because defendant performed no actions that should result in paying the other parties legal costs. Affirmed.

Edit Delete Indiana Court Of Appeals

WITNESS, ROBBERY

Mathews v. Indiana, Feb-13-2015

J. Vaidik finds that the trial court properly convicted defendant of robbery. The victim was unable to give testimony at trial because of declining health and the court followed all proper procedures to introduce her deposition into evidence. Also because defendant did not attend the deposition, which he want invited to by the state, he waived his right to contest the information. Affirmed.

Edit Delete Iowa Supreme Court

DOMESTIC VIOLENCE, CONFRONTATION, INEFFECTIVE ASSISTANCE

Iowa v. Tompkins, Feb-13-2015

J. Zager finds that appellant was properly convicted of domestic abuse assault. Appellant's girlfriend recanted her original account that appellant had pushed her down, but the responding officer gave that account in court, which appellant argued violated his confrontation clause rights against his girlfriend. Appellant's counsel made a tactical decision not to recall the girlfriend as a witness, and it is unclear whether counsel's lack of objection to another part of the officer's testimony was negligent. Affirmed.

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