U.S. Eighth Circuit - The FindLaw 8th Circuit Court of Appeals Opinion Summaries Blog

July 2009 Archives

US v. Summage, No. 08-3763

Conviction for production and possession of child pornography is affirmed where: 1) the district court properly denied a motion to suppress as a search warrant did not violate the First Amendment by allowing police to seize materials protected by the First Amendment as there was probable cause to believe those materials also contained evidence of a crime; 2) defendant's due process rights were not violated as he failed to establish that he was prejudiced by the fact that the assistant prosecutor who presented the warrant application worked at a firm which had represented defendant in unrelated matters; 3) the court did not abuse its discretion in denying defendant a Franks hearing; 4) the court did not abuse its discretion under the Speedy Trial Act in deciding to dismiss the indictment without prejudice, and defendant's right to a speedy trial under the Sixth Amendment was not violated; 5) a denial of a continuance was not an abuse of the court's discretion; and 6) evidence of a prior incident of child molestation was admissible as it was similar to the incidents charged in this prosecution and was highly probative.    

Read US v. Summage, No. 08-3763

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Submitted: June 12, 2009
Filed: July 31, 2009

Judges
Before LOKEN, Chief Judge, JOHN R. GIBSON and GRUENDER, Circuit Judges
Opinion by GRUENDER, Circuit Judge.

In a dispute involving pension benefits brought under ERISA, summary judgment for plaintiff is affirmed where the  court did not err in finding that the defendant wrongfully suspended plaintiff's monthly pension benefits, as his new employment used different skills and was not in the same trade or craft as the position from which he had retired. The court erred in awarding plaintiff attorneys' fees under ERISA as the Plan's position was not untenable, indefensible, overbroad or unwarranted.   

Read Eisenrich v. Minneapolis Retail Meat Cutters and Food Handlers Pension Plan, No. 08-2230

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: December 13, 2008
Filed: July 31, 2009

Judges
Before COLLOTON and SHEPHERD, Circuit Judges, and GOLDBERG, Judge.
Opinion by COLLOTON, circuit Judge.

Lovan v. Holder, No. 08-2177

Petition for review of an order of removal is granted and the matter remanded where: 1) plaintiff is not precluded from relief under INA sec. 212(c) by the Supreme Court's decision in St. Cyr; 2) the matter must be remanded to the Board of Immigration Appeals because it failed to consider whether plaintiff was eligible for nunc pro tunc INA sec. 212(c) relief under the In re L- line of cases; 3) retroactively applying the amended definition of aggravated felony to his pre-IIRIRA conviction for sexual abuse of a minor did not violate the due process right to fair notice and repose; and 4) the present court lacks jurisdiction to consider plaintiff's claim that the BIA erred in denying his request for withholding of removal because that decision is discretionary.    

Read Lovan v. Holder, No. 08-2177

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: February 11, 2009
Filed: July 31, 2009

Judges
Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.
Opinion by LOKEN, Chief Judge.

De la Garza v. Fabian, No. 08-2027

Denial of petition for writ of habeas corpus is affirmed where the court properly found that plaintiff was not denied access to his attorney in violation of his Sixth Amendment rights, as a state court finding that the limits placed on his phone usage did not unduly interfere with or prejudice his right to counsel was not an unreasonable application of established principles or an unreasonable determination of the facts.   

Read De la Garza v. Fabian, No. 08-2027

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: May 12, 2009
Filed: July 31, 2009

Judges
Before LOKEN, Chief Judge, BYE, Circuit Judge, and MILLER, District Judge.
Opinion by MILLER, District Judge.

Barnes v. City of Omaha, No. 07-3942

In an employment termination dispute, district court judgment is affirmed where: 1) the Elkhorn collective bargaining agreement and not the Omaha collective bargaining agreement governed any potential employment agreement which existed between defendant and plaintiff Elkhorn police officers, as the city of Omaha succeeded to Elkhorn's contractual agreements to plaintiffs under the Elkhorn collective bargaining agreement when it annexed the city of Elkhorn; 2) the severance provision of the Elkhorn collective bargaining agreement prevented plaintiffs from possessing property interests in employment positions with defendant; and 3) plaintiff's termination did not give rise to a due process claim as plaintiffs had no legitimate claim of entitlement to employment with defendant.  

Read Barnes v. City of Omaha, No. 07-3942


Appellate Information
Appeal from the United States District Court for the District of Nebraska.
Submitted: June 12, 2008
Filed: July 31, 2009

Judges
Before MELLOY, ARNOLD, and BENTON, Circuit Judges.
Opinion by MELLOY, Circuit Judge.

Jackson v. Norris, No. 08-1037

Denial of petition for writ of habeas corpus in a murder case is affirmed where the state's expert's testimony that petitioner was a "slinger" and a "banger" was cumulative of other evidence suggesting he was violent and involved in the drug trade, and the testimony did not have a substantial and injurious effect on the jury's verdict.    

Read Jackson v. Norris, No. 08-1037

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: May 11, 2009
Filed: July 30, 2009

Judges
Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
Opinion by WOLLMAN, Circuit Judge

US v. Nichols, No. 09-1165

Conviction for producing visual depictions of child pornography is affirmed where: 1) the district court did not err in denying defendant's motion to suppress evidence seized during the search of his home as the co-occupant of the house who had unlimited and joint access to the computer and related equipment where child pornography was found had common authority to consent to a search, and even if she lacked such authority the police acted reasonably in believing she had the authority to consent; 2) the court did not err in denying his motion to dismiss the indictment as the court had jurisdiction over the matter since all of the photographic and computer equipment used in the offense was manufactured outside of the state.    

Read US v. Nichols, No. 09-1165

Appellate Information
Appeal from the United States District Court for the Western District of Arkansas.
Submitted: June 8, 2009
Filed: July 29, 2009

Judges
Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
Opinion by MELLOY, Circuit Judge.

US v. Tonks, No. 08-3821

Sentence for wire fraud is affirmed where: 1) the district court did not err in denying defendant's request for an acceptance-of-responsibility reduction as his comments showed he expressly and unequivocally denied his factual guilt; and 2) the court followed proper procedure and applied the relevant factors in determining whether the sentence in this case should be consecutive to two other sentences, and its decision to impose a consecutive sentence was reasonable.   

Read US v. Tonks, No. 08-3821

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: June 12, 2009
Filed: July 29, 2009

Judges
Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.
Opinion by SHEPHERD, Circuit Judge.

Minor v. Astrue, No. 08-3375

In a dispute involving an application for disability insurance benefits and Supplemental Security Income payments, district court judgment is reversed where the claimant had since died of lung cancer and thus the ALJ's determination that her complaints regarding her pulmonary condition were not credible should be remanded for further proceedings, including a determination as to whether claimant suffered from lung cancer at the time the ALJ discounted her claims.    

Read Minor v. Astrue, No. 08-3375

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: April 15, 2009
Filed: July 29, 2009

Judges
Before MURPHY, BRIGHT, and BYE, Circuit Judges.
Opinion by BRIGHT, Circuit Judge.

Wright v. Arkansas & Missouri R.R. Co., No. 08-2151

In a negligence action brought under the Federal Employer's Liability Act and the Locomotive Inspection Act, district court judgment is affirmed where: 1) the district court has broad discretion in choosing the language of jury instructions and thus did not abuse its discretion in its instructions to the jury on negligence and contributory negligence; 2) the court did not abuse its discretion in allowing the railroad to introduce evidence that plaintiff was discharged for misconduct as plaintiff opened the door with his own testimony; 3) the court did not abuse its discretion in admitting evidence concerning absences as it was relevant to credibility; and 4) the court did not err in granting summary judgment for railroad on plaintiff's Locomotive Inspection Act claim as the evidence showed the locomotive was not in use at the time plaintiff was injured.   

Read Wright v. Arkansas & Missouri R.R. Co., No. 08-2151

Appellate Information
Appeal from the United States District Court for the Western District of Arkansas.
Submitted: January 15, 2009
Filed: July 29, 2009

Judges
Before MURPHY and SMITH, Circuit Judges, and LIMBAUGH, District Judge
Opinion by SMITH, Circuit Judge.
LIMBAUGH, District Judge, concurring.

Winspear v. Community Development, Inc., No. 08-2041

In an employment discrimination action involving circumstances where a co-worker claimed to be able to communicate with plaintiff's dead brother, district court judgment is reversed where the court erred in treating plaintiff's hostile work environment claim as one for constructive discharge. The matter is remanded for further proceedings on the hostile work environment discrimination claim.    

Read Winspear v. Community Development, Inc., No. 08-2041

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: November 14, 2008
Filed: July 29, 2009

Judges
Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
Opinion by MELLOY, Circuit Judge.
BOWMAN, Circuit Judge, concurring.
SMITH, Circuit Judge, dissenting.

US v. Graham, No. 08-3580

District court did not err in dismissing indictment for first degree murder on the ground it failed to allege Indian status under 18 U.S.C. sec. 1153 as the indictment is insufficient since Indian status is an essential element of the offense, and the defect cannot be cured by an application of aider-and-abettor liability.   

Read US v. Graham, No. 08-3580

Appellate Information
Appeal from the United States District Court for the District of South Dakota.
Submitted: April 15, 2009
Filed: July 28, 2009

Judges
Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
Opinion by BENTON, Circuit Judge.

US v. Ladoucer, No. 08-3177

Conviction for firearms possession and other crimes is affirmed where: 1) the district court did not err in finding defendant knowingly and voluntarily waived his right to counsel when he asked for permission to proceed pro se at trial; 2) the court did not err in failing to compel the attendance of one of defendant's witnesses as defendant failed to show that her testimony would have been material; 3) the government's failure to produce the transcript of a witness's state court testimony did not violate Brady because the transcript was as available to defendant as it was to the government; 4) the court did not abuse its discretion by denying defendant's request for expert funds as defendant failed to show that an expert on videotapes was necessary for his defense; and 5) the court did not err in refusing to give defendant's proposed instructions on credibility and the effect of a co-defendant's guilty plea.   

Read US v. Ladoucer, No. 08-3177

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: June 9, 2009
Filed: July 28, 2009

Judges
Before MURPHY, ARNOLD and GRUENDER, Circuit Judges.
Opinion by GRUENDER, Circuit Judge.

US v. Johnson, No. 08-3054

Conviction and sentence for drug crimes is affirmed where 1) defendant's sentence is reasonable and the district court adequately explained its reasons for imposing it; and 2) district court did not abuse its discretion in denying defendant's request for independent testing of the drug as he failed to avail himself of the opportunities to make a timely request.    

Read US v. Johnson, No. 08-3054

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Submitted: May 15, 2009
Filed: July 28, 2009

Judges
Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
Opinion by WOLLMAN, Circuit Judge.

Marroquin-Ochoma v. Holder, No. 08-2760

Petition for review of a decision denying Guatemalan native's application for asylum, withholding of removal, and relief under the Convention Against Torture is denied where: 1) the IJ did not err in finding that the gang which plaintiff claimed was persecuting her had not attributed an anti-gang political opinion to her, and that she failed to show that the threats she received were on account of an imputed political opinion; and 2) plaintiff failed to show she qualified for relief under the Convention Against Torture as she did not show that it was more likely than not that she would be tortured if she were removed to Guatemala and that the government condoned or acquiesced in the gang members' threats.   

Read Marroquin-Ochoma v. Holder, No. 08-2760

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: March 10, 2009
Filed: July 28, 2009

Judges
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
Opinion by MELLOY, Circuit Judge.

PFS Distribution Co. v. Raduechel, No. 08-1701

In an action for breach of fiduciary duties, copyright infringement and other claims, district court judgment is affirmed where: 1) the court properly denied of plaintiff's motion for a new trial on its breach of fiduciary duties and misappropriation of trade secrets claims as the jury could have concluded that defendants' conduct did not proximately cause plaintiff to lose the customers' business; 2) the court did not erroneously deny plaintiff's motion for a new trial on the conspiracy claim as there was sufficient evidence to support the jury findings that accounting defendants and banking defendants did not conspire with the former employees; 3) jury instructions on the conspiracy claim were not erroneous; 4) the court did not abuse its discretion in denying plaintiff's motion for a new trial on its aiding and abetting claims as the evidence was sufficient for the jury to conclude the defendants did not know the employees' conduct was improper; 5) the district court did not abuse its discretion in denying plaintiff's unjust enrichment claim; and 6) the court did not err dismissing defendant's counterclaim that he was improperly denied a bonus.   

Read PFS Distribution Co. v. Raduechel, No. 08-1701

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Submitted: April 15, 2009
Filed: July 28, 2009

Judges
Before WOLLMAN, BYE, and RILEY, Circuit Judges.
Opinion by Riley, Circuit Judge.

US v. Smith, No. 07-2956

Conviction for various crimes related to the distribution of prescription drugs over the internet without valid prescriptions is affirmed where: 1) the district court did not err in instructing the jury to measure the usual course of professional practice under 21 U.S.C. sec. 841(a)(1) and 21 C.F.R. Sec. 1306.04 with reference to generally recognized and accepted medical practices and not a doctor's self-defined particular practice; 2) the jury was properly instructed on the offense of introducing a misbranded drug into interstate commerce; 3) the court did not err in allowing expert testimony on the standard of care to which a doctor must adhere in order to prescribe a controlled substance; 4) the court committed no reversible error on its other challenged evidentiary rulings; and 5) the evidence was sufficient to support defendant's conviction. Sentence is vacated and remanded in light of the decision in Gall.    

Read US v. Smith, No. 07-2956

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: February 11, 2009
Filed: July 28, 2009

Judges
Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.
Opinion by MELLOY, Circuit Judge.
LOKEN, Chief Judge, concurring in part and dissenting in part.

US v. Buchanan, No. 08-3515

Conviction for drug crimes is affirmed where: 1) the district court did not err in denying defendant's motion to suppress as the information police obtained from a source and a confidential informant was sufficiently reliable to establish probable cause for the issuance of a search warrant for defendant's home, and there was no evidence that the police acted untruthfully or recklessly in preparing the affidavit for the warrant; 2) jury instructions did not constructively amended the indictment against defendant as the instructions clearly informed the jury of the essential elements of the crime of attempting to manufacture methamphetamine; and 3) any variance between the evidence and the indictment did not materially prejudice defendant, and the indictment was sufficient to charge defendant with attempt to manufacture methamphetamine. 

Read US v. Buchanan, No. 08-3515

Appellate Information
Appeal from the United States District Court for the District of South Dakota.
Submitted: June 11, 2009
Filed: July 27, 2009

Judges
Before MELLOY, BEAM, and COLLOTON, Circuit Judges.
Opinion by MELLOY, Circuit Judge.

US v. Luleff, No. 08-3271

Sentence for drug crimes is affirmed where: 1) the government's motion to dismiss is denied as defendant's appeal was not barred by his waiver of appeal rights as it fell within the scope of an exception contained in the plea agreement; and 2) the district court did not abuse its discretion in imposing defendant's sentence as the sentence is not unreasonable and is within the applicable Guidelines range.    

Read US v. Luleff, No. 08-3271

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: June 12, 2009
Filed: July 27, 2009

Judges
Before BYE, HANSEN, and BENTON, Circuit Judges.
Opinion by BYE, Circuit Judge.

US v. McArthur, No. 08-2799

Conviction for possession of child pornography is affirmed where: 1) the district court did not err in denying defendant's motion to suppress as the evidence as a whole established probable cause to believe that child pornography would be found in defendant's home; and 2) the court did not err in denying his motion for judgment of acquittal as the evidence was sufficient to support defendant's conviction.    

Read US v. McArthur, No. 08-2799

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: February 10, 2009
Filed: July 27, 2009

Judges
Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
Opinion by SHEPHERD, Circuit Judge.

Discovery Group LLC v. Chapel Development, LLC, No. 08-2334

District court judgment is reversed where the court erred in finding plaintiffs' indemnification claim was barred by the Missouri statute of limitations for actions on contracts, as the cause of action had not yet accrued under Missouri law when they filed their third-party complaint against defendant.   

Read Discovery Group LLC v. Chapel Development, LLC, No. 08-2334

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: January 16, 2009
Filed: July 27, 2009

Judges
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
Opinion by COLLOTON, Circuit Judge.

Lafarge North America, Inc. v. Discovery Group LLC, No. 08-2210

In an action for breach of contract and various torts, district court judgment is reversed where the court erred in: 1) granting defendant summary judgment on a breach of contract claim as the parties' contract was ambiguous on the disputed provisions, and thus both parties should have the opportunity to introduce extrinsic evidence favorable to their interpretation of the provisions; 2) granting defendant summary judgment on a fraudulent misrepresentation claim as there was a genuine issue of fact exists as to whether the disclosure of certain facts was material; and 3) granting defendant summary judgment on the claims for breach of fiduciary duty, negligence and rescission.   

Read Lafarge North America, Inc. v. Discovery Group LLC, No. 08-2210

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: January 16, 2009
Filed: July 27, 2009

Judges
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
Opinion by BYE, Circuit Judge.

US v. Smith, No. 08-3775

Sentence for drug crimes and firearms possession is affirmed where: 1) the district court did not abuse its discretion in refusing to compel the government to a file a substantial assistance motion under U.S.S.G. section 3553(e) as defendant failed to meet his burden of showing that the government acted with an improper motive in refusing to file the motion; and 2) the government was not judicially estopped from arguing that defendant had not provided substantial assistance.   

Read US v. Smith, No. 08-3775

Appellate Information
Appeals from the United States District Court for the Northern District of Iowa.
Submitted June 11, 2009
Decided July 24, 2009

Judges
Before MELLOY, BEAM, and COLLOTON, Circuit Judges.
Opinion by MELLOY, Circuit Judge.

US v. Jones, No. 08-2851

Sentence for being a felon in possession of a firearm is affirmed where: 1) the district court did not err in finding defendant qualified for sentencing under the Armed Career Criminal Act as his convictions for domestic assault under Missouri law constituted convictions for violent felonies; 2) the Eighth Amendment does not prohibit using an adult conviction based on juvenile conduct to increase a sentence under the Armed Career Criminal Act; and 3) the court did not violate the defendant's right to a trial by jury under the Sixth Amendment as the question of whether a conviction qualifies as a predicate offense under the Act is a question of law for the court, not a jury.    

Read US v. Jones, No. 08-2851

Appellate Information
Appeals from the United States District Court for the Eastern District of Missouri
Submitted February 10, 2009
Decided July 24, 2009

Judges
Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
Opinion by SHEPHERD, Circuit Judge.

Fru-Con Construction Corp. v. Controlled Air, Inc., No. 08-1712

District court judgment dismissing plaintiff's breach of contract action is reversed where the court erred in applying the abstention principles of Colorado River and abstaining from deciding the matter as a state court lien foreclosure proceeding and the federal breach of contract action were not parallel proceedings. 

Read Fru-Con Construction Corp. v. Controlled Air, Inc., No. 08-1712

Appellate Information
Appeals from the United States District Court for the Eastern District of Missouri
Submitted September 26, 2008
Decided July 24, 2009

Judges
Before BYE, BEAM, and SHEPHERD, Circuit Judges.
Opinion by BEAM, Circuit Judge.
BYE, Circuit Judge, concurring in the result and joining the dissent in part.
SHEPHERD, Circuit Judge, dissenting.

US v. Beale, No. 08-3205

Conviction and sentence for tax evasion and other crimes is affirmed where: 1) there was sufficient evidence of defendant's willfulness to support his conviction for tax evasion; 2) the court did not abuse its discretion in refusing to recuse itself after defendant plotted to have the judge arrested by the provost marshal of his "common law court" in an attempt to intimidate all of the judges of the district; 3) defendant was not denied due process as he was provided with adequate resources to conduct his pro se defense; and 4) defendant's sentence was not substantively unreasonable.        

Read US v. Beale, No. 08-3205

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: June 10, 2009
Filed: July 23, 2009

Judges
Before SMITH and SHEPHERD, Circuit Judges, and LIMBAUGH, District Judge.
Opinion by SHEPHERD, Circuit Judge.

Gerhardt v. Liberty Life Assurance Company of Boston, No. 08-2517

In an appeal from a district court decision reversing an administrator's decision that plaintiff was no longer eligible for long-term disability benefits and remanding the claim for further consideration, the appeal is dismissed for lack of jurisdiction as the lower court's decision was not a final, appealable order. 

Read Gerhardt v. Liberty Life Assurance Company of Boston, No. 08-2517

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: March 12, 2009
Filed: July 23, 2009

Judges
Before SMITH, GRUENDER, and BENTON, Circuit Judges.
Opinion by SMITH, Circuit Judge.

In an action for breach of contract and promissory estoppel, district court's grant of summary judgment for defendant is affirmed where: 1) the court properly concluded that the parties' letter of intent governed their relationship after a certain date, and the letter of intent unambiguously gave defendant the right to terminate the parties' relationship; and 2) the court did not err in granting defendant summary judgment on plaintiff's alternative claims for equitable relief since it correctly determined that the letter of intent, as modified and extended, governed the parties' relationship.    

Read Cherne Contracting Corp. v. Marathon Petroleum Company, LLC, No. 08-2723

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: March 11, 2009
Filed: July 22, 2009

Judges
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
Opinion by MELLOY, Circuit Judge.

O'Neil v. Simplicity, Inc., No. 08-2278

In a products liability action, dismissal of plaintiff's claims is affirmed where: 1) plaintiff's failure to plead that the product defect involved had ever manifested itself in their baby crib was fatal to their case as the purchasers of an allegedly defective product have no legally cognizable claim where the alleged defect has not manifested itself in the product they own; and 2) the court did not abuse its discretion in denying plaintiffs' motion to amend their second amended complaint as plaintiffs did not follow applicable procedural rules.    

Read O'Neil v. Simplicity, Inc., No. 08-2278

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: March 10, 2009
Filed: July 22, 2009

Judges
Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
Opinion by WOLLMAN, Circuit Judge.

Brown v. City of Golden Valley, No. 08-1640

In an action alleging excessive force by the police, district court judgment denying defendants' motion for summary judgment based on qualified immunity is affirmed where: 1) the court did not err in concluding that the officer's use of force was not objectively reasonable as a matter of law; 2) the law is clearly established such that a reasonable police officer is informed that it is unlawful to Taser a nonviolent, suspected misdemeanant who was not fleeing or resisting arrest and posed little or no threat to anyone's safety; and 3) a jury could find defendant is not entitled to official immunity because he willfully violated plaintiff's right to be free from excessive force.   

Read Brown v. City of Golden Valley, No. 08-1640

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: December 12, 2008
Filed: July 22, 2009

Judges
Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.
Opinion by WOLLMAN, Circuit Judge.

US v. Gonzalez, No. 08-3361

Sentence for drug crimes is affirmed where: 1) the district court did not abuse its discretion in departing upward for underrepresentaion of criminal history pursuant to U.S.S.G. sec. 4A1.3 as the court considered the appropriate factors and gave an adequate explanation for its decision to impose the upward departure; and 2) the court did not abuse its discretion in denying a downward variance as it properly weighed the factors warranting downward variance and those that militated against a departure.    

Read US v. Gonzalez, No. 08-3361

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: May 15, 2009
Filed: July 20, 2009

Judges
Before RILEY, SMITH, and COLLOTON, Circuit Judges.
Opinion by SMITH, Circuit Judge.

US v. Martinez-Salinas, No. 08-3356

Conviction and sentence for drug crimes is affirmed where: 1) the district court did not err in denying defendant's claim of ineffective assistance of counsel for failure to explain that the application of the U.S.S.G. section 2D1.1(b)(1) sentencing enhancement required proof of a connection between the firearm and the narcotics offense, as trial counsel's actions in explaining the government's evidentiary burden did not fall below an objective standard of reasonableness; and 2) defendant could not show that had he gone to trial his challenge to the inclusion of the enhancement would have succeeded. 

Read US v. Martinez-Salinas, No. 08-3356

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: May 15, 2009
Filed: July 20, 2009

Judges
Before RILEY, SMITH, and COLLOTON, Circuit Judges.
Per Curium Opinion

Zanders v. Swanson, No. 08-3221

District court's dismissal of plaintiffs' preenforcement challenge to a state criminal statute for lack of standing is affirmed where: 1) plaintiffs failed to meet their Article III burden of proving that their First Amendment rights were chilled based on a subjective and sincere belief that under the statute they would be criminally charged for making truthful claims of police misconduct; and 2) the court did not abuse its  discretion in dismissing the claim of the one plaintiff with standing based on the Younger doctrine.    

Read Zanders v. Swanson, No. 08-3221

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: June 10, 2009
Filed: July 20, 2009

Judges
Before COLLOTON, JOHN R. GIBSON, and BEAM, Circuit Judges.
Opinion by BEAM, Circuit Judge.

US v. Jordan, No. 08-2954

Sentence for drug crimes is affirmed where the district court's imposition of sentence at low end of the guidelines range was presumptively reasonable, the sentence was not procedurally or substantively erroneous, and the court's sentencing colloquy sufficiently explained its rationale.    

Read US v. Jordan, No. 08-2954

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: May 14, 2009
Filed: July 20, 2009

Judges
Before RILEY, SMITH, and COLLOTON, Circuit Judges.
Per Curium Opinion

Donaldson Company, Inc. v. Burroughs Diesel, Inc., No. 08-2705

District court order compelling arbitration between nonsignatory and signatory parties to an agreement with an arbitration clause is reversed where: 1) federal substantive law of arbitrability applies; 2) plaintiff-nonsignatory cannot enforce the arbitration clause against  defendant-signatory as plaintiff cannot establish a sufficiently close relationship to defendant, the claims do not relate to the agreement, and defendant's cross-claim did not rise to the level of substantially interdependent and concerted misconduct.    

Read Donaldson Company, Inc. v. Burroughs Diesel, Inc., No. 08-2705

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: March 13, 2009
Filed: July 20, 2009

Judges
Before SMITH, GRUENDER, and BENTON, Circuit Judges.
Opinion by BENTON, Circuit Judge.

US v. Alexander, No. 08-2261

Conviction for receiving and possessing child pornography is affirmed where: 1) the district court did not err in denying the motion to suppress based on challenge to the validity of search warrant, as even if the warrant application had disclosed the defendant was present in the secretly recorded videos, the magistrate could reasonably assume that a probability of criminal conduct was shown based on invasion of privacy when the video was taken of others in the nude; 2) the warrant was not facially overbroad in allowing a search of storage of digital images; and 3) police did not unlawfully expand the scope of the invasion-of-privacy search into a search of child pornography, and the items were lawfully seized pursuant to the plain-view exception to the warrant requirement.    

Read US v. Alexander, No. 08-2261

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: January 15, 2009
Filed: July 20, 2009

Judges
Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
Opinion by SHEPHERD, Circuit Judge.

US v. Papakee, No. 08-2032

Conviction for committing sexual abuse against a Native American woman is affirmed where: 1) the district court did not err in excluding victim's statement to sheriff, as the statements constituted other sexual behavior under Fed. R. Evid. 412(a)(1); 2) the evidence was sufficient to support the verdict against both defendants; 3) the court did not err in finding convicted offense involved conduct described in 18 U.S.C. sec. 2241(a) and that a four level enhancement under the sentencing guidelines was appropriate; 4) any error in sentencing defendant as a career offender was harmless as the court would have imposed the same sentence absent career offender status; and 5) the sentence was not unreasonable. 

Read US v. Papakee, No. 08-2032

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: December 10, 2008
Filed: July 17, 2009

Judges
Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
Opinion by COLLOTON, Circuit Judge.
Concurring Opinion by BRIGHT, Circuit Judge

Karnitz v. Well Fargo Bank, N.A., No. 08-2100

District court's grant of summary judgment for plaintiff is reversed where the court erred in holding the mortgage was invalid under state law because both spouses did not sign it, as: 1) plaintiffs are estopped from claiming invalid mortgage since the nonsigning spouse knew of and intended to mortgage the homestead; 2) she retained benefits; and 3) the bank significantly changed its position in reliance on validity of mortgage. 

Read Karnitz v. Well Fargo Bank, N.A., No. 08-2100


Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: February 12, 2009
Filed: July 17, 2009

Judges
Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
Opinion by HANSEN, Circuit Judge.
Dissenting Opinion by Bye, Circuit Judge.

US v. Murphy, No. 08-2756

Conviction for drug crimes and firearms possession is affirmed where: 1) the district court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea as he did not present a fair and just reason to withdraw the plea based on ineffective assistance of counsel; 2) the court did not err in determining that defendant was competent and his plea was entered knowingly and voluntarily; and 3) the court did not abuse its discretion in determining the Watson decision did not provide a fair and just reason for withdrawal of defendant's guilty plea for possession of a firearm in furtherance of a drug trafficking crime as there was ample evidence to convict him of the crime. 

Read US v. Murphy, No. 08-2756

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: May 13, 2009
Filed: July 17, 2009

Judges
Before RILEY, SMITH, and COLLOTON, Circuit Judges
Opinion by RILEY, Circuit Judge.

Whisenhunt v. Southwestern Bell Telephone, No. 08-3542

In action to determine whether the utility or developer must bear costs of relocating utilities to accommodate construction of streets within city limits, district court judgment is affirmed where the court did not err in concluding plaintiff must bear the costs, as development is a private commercial development involving no city actors, and the city's conditions to a permit application's approval does not convert a private development into public works project. 

Read Whisenhunt v. Southwestern Bell Telephone, No. 08-3542

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: April 16, 2009
Filed: July 17, 2009

Judges
Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
Opinion by WOLLMAN, Circuit Judge.

Merriam v. Nat'l Union Fire Ins. Co. of Pittsburgh, No. 08-3547

In action for breach of contract and bad faith denial of insurance benefits, district court grant of summary judgment for defendant is affirmed in part and reversed in part where: 1) the grant of summary judgment on the breach of contract claim was premature, as factual disputes remain as to whether the insured was injured while performing tasks that fell within the course and scope of his duties under the independent contractor agreement; and 2) the court did not err in denying the claim for bad faith denial of benefits, as the claim was fairly debatable and defendant had an objectively reasonable basis for its denial. 

Read Merriam v. Nat'l Union Fire Ins. Co. of Pittsburgh, No. 08-3547

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Submitted: June 9, 2009
Filed: July 17, 2009

Judges
Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
Opinion by MURPHY, Circuit Judge.

Sipe v. Workhorse Custom Chassis, LLC, No. 08-3230

District court's grant of summary judgment on claim of violation of Minnesota lemon law and Magnuson-Moss Warranty Act violation is affirmed where: 1) plaintiff failed to present evidence that the engine stalls substantially impaired the use or market value as required by the lemon law, and the claim relating to transmission leaks was barred by statute; and 2) the breach of warranty claim was properly denied, as there was no dispute that an alleged breach of warranty relating to stalls or transmission fluid leaks caused any harm.    

Read Sipe v. Workhorse Custom Chassis, LLC, No. 08-3230

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: June 11, 2009
Filed: July 16, 2009

Judges
Before LOKEN, Chief Judge, JOHN R. GIBSON and GRUENDER, Circuit Judges.
Opinion by GRUENDER, Chief Judge.

M.M. Silta, Inc. v. Cleveland Cliffs, Inc., No. 08-2620

In a breach of contract action, district court judgment is affirmed where: 1) any error the district court made in submitting jury instructions concerning material breach and inclusion of language relating to notice of termination was harmless as it did not affect substantial rights; and 2) the court did not abuse its discretion in declining to limit damages to foreseeable losses.    

Read M.M. Silta, Inc. v. Cleveland Cliffs, Inc., No. 08-2620

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: March 11, 2009
Filed: July 16, 2009

Judges
Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
Opinion by WOLLMAN, Chief Judge.

US v. Seed, No. 08-2399

Conviction for aggravated sexual abuse and attempted aggravated sexual abuse is affirmed where: 1) the district court did not err in denying a motion to dismiss the indictment for alleged government misconduct as the jury's guilty verdict rendered any error harmless; 2) the court did not abuse its discretion in excluding certain evidence under Fed. R. Evid. 412(b)(1)(A), as the court conducted the required  balancing and properly found admission would violated Rule 403; 3) the exclusion of evidence under Rule 412(b)(1)(C) was not arbitrary or disproportionate to the purposes served by the exclusion; and 4) the court did not abuse its discretion in including a jury instruction on the lesser-included offense of attempted aggravated sexual abuse.    

Read US v. Seed, No. 08-2399

Appellate Information
Appeal from the United States District Court for the District of South Dakota.
Submitted: February 10, 2009
Filed: July 16, 2009

Judges
Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.
Opinion by GRUENDER, Chief Judge.

Roark v. South Iron R-1 School Dist., No. 08-1847

A permanent injunction enjoining defendant from allowing distribution of Bibles to elementary school children on school property at any time during the school day is affirmed where the defendant's argument that the permanent injunction impermissibly mandates a content-based restriction on speech in the limited public forum is without merit. However, grant of a declaratory judgment is reversed where the incorporation of the permanent injunction is superfluous and the portion granting judgment on complaint is ambiguous, and a declaratory judgment prohibiting implementation of policy is unnecessary.    

Read Roark v. South Iron R-1 School Dist., No. 08-1847

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: December 11, 2008
Filed: July 16, 2009

Judges
Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE, District Judge.
Opinion by LOKEN, Chief Judge.

Mambwe v. Holder, No. 08-1224

Petition for review of a decision denying asylum, withholding of removal, and protection under the Convention Against Torture is denied where: 1) plaintiff failed to show the harm she suffered in 1997 was on account of her race, religion, nationality, membership in a particular social group, or political opinion ground; 2) while a 1984 attack against plaintiff constituted past persecution, plaintiff failed to show she had a well-founded fear of future persecution as a result of changed circumstances; 3) plaintiff failed to show she was entitled to humanitarian relief based on the severity of the past persecution that she suffered; and 4) plaintiff did not show she was denied due process or that her administrative appeal was fundamentally unfair.    

Read Mambwe v. Holder, No. 08-1224

Appellate Information
Petition for Review from the Board of Immigration Appeals.
Submitted: February 11, 2009
Filed: July 16, 2009

Judges
Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.
Opinion by GRUENDER, Circuit Judge.

Moore v. Astrue, No. 08-3546

District court decision affirming the Commissioner of the Social Security Administration's denial of claimant's application for disability insurance benefits is affirmed where: 1) the ALJ did not err in determining claimant retained the residual functional capacity to perform light work and that she could thus return to her prior work; and 2) the ALJ did not err in discrediting claimant's testimony regarding her limitations as he sufficiently considered her testimony, but discredited it for good cause because her testimony was inconsistent with the medical and other evidence in the record as a whole.    

Read Moore v. Astrue, No. 08-3546

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: June 10, 2009
Filed: July 14, 2009

Judges
Before BYE, HANSEN, and BENTON, Circuit Judges.
Opinion by BYE, Circuit Judge.

In an insurance liability dispute, district court judgment is affirmed in part and reversed in part where: 1) the court did not err in finding that an insurance agent did not have any special or expanded agreement with defendant which would have transformed the general duty into an expanded duty; 2) the court properly found that Kansas's Valued Property Law does not apply and that plaintiff's liability was not limited to the valuation sheet value; 3) the coinsurance provision of the policy did not since the Valued Policy Law did not apply; 4) the policy provisions that limit coverage for the cost of repair or replacement in order to comply with an ordinance were in violation of Kansas public policy and not enforceable; 5) Missouri's vexatious refusal to pay statute did not apply as Kansas law governs the dispute; and 6) Kansas law concerning award of attorneys' fees applies if the insured obtains a judgment in excess of the amount the insurer tendered. 

Read State Auto Property & Casualty Ins. Co. v. Boardwalk Apartments, L.C., No. 08-2167

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: December 10, 2008
Filed: July 14, 2009

Judges
Before MELLOY, BENTON, and DOTY Circuit Judges.
Opinion by BENTON, Circuit Judge.

District court judgment granting the motion to dismiss for failure to state a claim is affirmed where: 1) the Minneapolis ordinance uncapping the number of taxi licenses did not amount to an unconstitutional taking of private property requiring compensation under the Fifth Amendment, as the holders of the licenses did not have a protected property interest in the value of the licenses on the secondary or re-sale market; 2) the ordinance does not violate due process rights as the holders of the licenses did not have a protected property interest; and 3) plaintiffs do not have standing to raise an unconstitutional exaction claim as the complaint does not allege a relationship between its member-licensees and the licensed service companies affected by the new ordinance's provisions on fuel efficiency and wheel-chair access, and thus, they cannot show an injury in fact.    

Read Minneapolis Taxi Owners Coalition, Inc. v. City of Minneapolis, No. 08-1239

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: November 13, 2008
Filed: July 14, 2009

Judges
Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
Opinion by MELLOY, Circuit Judge.

US v. Feemster, No. 06-2059

Sentence for drug crimes is affirmed where: 1) the district court provided substantial insight into the reasons for its sentencing decision, and thus did not fail to adequately explain its chosen sentence; and 2) the court did not abuse its discretion in sentencing defendant as its justification for imposing the sentence rested on precisely the kind of defendant-specific determinations that are within the special competence of the sentencing courts.    

Read US v. Feemster, No. 06-2059

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: April 17, 2009
Filed: May 14, 2009

Judges
Before LOKEN, Chief Judge, WOLLMAN, BEAM, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, BENTON, and SHEPHERD, Circuit Judges.
Opinion by SMITH, Circuit Judge.
Concurring Opinions by RILEY and COLLOTON.
Dissenting Opinion by BEAM.

 

US v. Gamble, No. 08-2800

District court judgment denying defendant's motion to reduce his sentence and his request for resentencing is affirmed where defendant is no longer serving a sentence for crack cocaine and was therefore not eligible for a sentence reduction under the recent amendments to the crack cocaine guidelines.    

Read US v. Gamble, No. 08-2800

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: April 17, 2009
Filed: May 14, 2009

Judges
Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
Opinion by WOLLMAN, Circuit Judge.

Farmers Cooperative Co. v. Senske & Son Transfer Co., No. 08-2809

In an action brought under the Federal Odometer Act, district court judgment denying defendant's motion for a new trial is affirmed where: 1) the damages award against defendant is supported by substantial evidence; 2) the court did not err in refusing to bifurcate the case into liability and damages proceedings as it was a relatively simple case involving only one claim and one defendant that did not warrant bifurcation; 3) there was no error in the court's verdict form or in the jury instructions; 4) the court did not abuse its discretion denying defendant's motions for continuance; 5) the court's disputed comments during trial did not prejudice the jury or constitute judicial misconduct; and 6) the court did not err in awarding attorneys' fees award or in awarding plaintiff prejudgment interest.    

Read Farmers Cooperative Co. v. Senske & Son Transfer Co., No. 08-2809

Appellate Information
Appeal from the United States District Court for the District of North Dakota.
Submitted: March 13, 2009
Filed: May 14, 2009

Judges
Before LOKEN, Chief Judge, EBEL and CLEVENGER, Circuit Judges.
Opinion by CLEVENGER, Circuit Judge.

US v. Sanchez, No. 08-2934

Conviction for drug crimes is affirmed where an officer's decision to stop the car did not violate Fourth Amendment and the evidence obtained from the subsequent search of the minivan was not the fruit of a constitutional violation, as there was reasonable suspicion to believe that the vehicle did not display valid proof of vehicle registration, and the operator was thus in violation of Nebraska's vehicle registration statutes.   

Read US v. Sanchez, No. 08-2934

Appellate Information
Appeal from the United States District Court for the District of Nebraska.
Submitted: March 13, 2009
Filed: July 13, 2009

Judges
Before WOLLMAN, RILEY, and COLLOTON, Circuit Judges.
Opinion by COLLOTON, Circuit Judge.

US v. Valdez, No. 08-3590

Sentence for firearms possession and drug crimes is affirmed where the sentence imposed was not substantively unreasonable in view of the district court's consideration of the 18 U.S.C. sec. 3553(a) factors and its thorough explanation of its reasons for the chosen sentence.    

Read US v. Valdez, No. 08-3590

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: June 9, 2009
Filed: July 13, 2009

Judges
Before SMITH and SHEPHERD, Circuit Judges, and LIMBAUGH, District Judge.
Per Curium Opinion

US v. Watters, No. 08-3696

Conviction for firearms possession is affirmed where: 1) the arresting officers' questions fell within the public safety exception to Miranda, and thus defendant's statements in response were admissible; 2) the district court did not err in determining that defendant voluntarily consented to the search of his vehicle as defendant's intoxication did not render his consent to search his vehicle involuntary and unknowing.    

Read US v. Watters, No. 08-3696

Appellate Information
Appeal from the United States District Court for the Western District of Arkansas.
Submitted: April 16, 2009
Filed: July 13, 2009

Judges
Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
Opinion by WOLLMAN, Circuit Judge.

US v. Struzik, No. 08-3936

Sentence for alien smuggling is affirmed where: 1) the district court gave adequate consideration to the U.S.S.G. sec. 3553(a) factors and sufficiently explained its sentencing rationale; and 2) defendant's sentence was not substantively unreasonable.   

Read US v. Struzik, No. 08-3936

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: June 10, 2009
Filed: July 13, 2009

Judges
Before COLLOTON, JOHN R. GIBSON and BEAM, Circuit Judges.
Opinion by BEAM, Circuit Judge.

US v. Moore, No. 09-1199

Conviction for interstate transportation of child pornography is affirmed where: 1) the use of peer-to-peer software for distribution of pornography qualifies for a five-level increase in the offense level under the provisions of U.S.S.G. sec. 2G2.2(b)(3)(B); and 2) the sentence imposed was not substantively unreasonable as the district court considered the 18 U.S.C. sec. 3553(a) factors and adequately explained the chosen sentence.    

Read US v. Moore, No. 09-1199

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: June 8, 2009
Filed: July 13, 2009

Judges
Before SMITH and SHEPHERD, Circuit Judges, and LIMBAUGH, District Judge.
Per Curium Opinion

US v. Johnson, No. 08-3140

Conviction and sentence for drug crimes is affirmed where: 1) the evidence was sufficient to show defendant was an unlawful user of marijuana; 2) the evidence was sufficient for a jury to reasonably conclude that defendant was an unlawful user of marijuana in possession of a firearm; and 3) even if the district court procedurally erred in granting the government's motion for an upward departure in his advisory guidelines range, the error is harmless and the sentence would be affirmed based on the district court's alternative decision to impose an upward variance based on the U.S.S.G. sec. 3553(a) factors. 

Read US v. Johnson, No. 08-3140

Appellate Information
Appeal from the United States District Court for the Western District of Arkansas.
Submitted: April 15, 2009
Filed: July 10, 2009

Judges
Before WOLLMAN, MELLOY and GRUENDER, Circuit Judges.
Opinion by GRUENDER, Circuit Judge.

Goyle v. Anderson, No. 08-3730

In a civil rights and wrongful death action involving the death of a prison inmate, district court's grant of summary judgment for defendants is affirmed where: 1) the county's booking policy at the time of plaintiff's father's murder was not unconstitutional; and 2) plaintiffs failed to show that the county's decision to maintain the policy was made with deliberate indifference to its known or obvious consequences and that the county had any notice that its booking policy was so inadequate that a constitutional violation was inevitable. 

Read Goyle v. Anderson, No. 08-3730

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Argued June 10, 2009
Decided July 9, 2009

Judges
Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
Opinion by MURPHY, Circuit Judge.

US v. Rush-Richardson, No. 08-2414

Conviction for possession of firearms in furtherance of drug trafficking is reversed and remanded where the district court erred in its jury instruction on possession of a firearm in furtherance of a drug crime as the instruction would allow the jury to convict on a lesser finding, and affected his substantial rights. 

Read US v. Rush-Richardson, No. 08-2414

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Argued March 13, 2009
Decided July 9, 2009

Judges
Before WOLLMAN, RILEY, and COLLOTON, Circuit Judges.
Opinion by RILEY, Circuit Judge.

US v. Jordan, No. 08-2276

District court order revoking defendant's term of supervised release and sentencing him to imprisonment is affirmed where the court had statutory authority to sentence defendant based on conduct occurring after the issuance of the revocation warrant and did not abuse its discretion in sentencing him to the statutory maximum term of imprisonment based on that conduct. 

Read US v. Jordan, No. 08-2276

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Argued May 11, 2009
Decided July 9, 2009

Judges
Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
Opinion by WOLLMAN, Circuit Judge.

US v. Bailey, No. 08-1908

In an enforcement action brought under the Clean Water Act, district court judgment is affirmed where: 1) the Army Corps of Engineer has jurisdiction over the wetland in question under Clean Water Act sec. 309(b) if either the plurality's test or Justice Kennedy's substantial nexus test in Rapanos v. US is satisfied; 2) defendant's property met the substantial nexus test as it was situated in a wetland adjacent to navigable-in-fact waters; 3) the court did not err in admitting the Corps' expert evidence establishing the existence of  wetlands as the evidence was reliable and satisfied the Daubert test; 4) the court's order requiring Bailey to restore the wetlands in question was not arbitrary or capricious, and did not violate defendant's equal protections rights; and 5) the court did not abuse its discretion in issuing a permanent injunction ordering defendant to restore the wetland to its pre-violation condition. 

Read US v. Bailey, No. 08-1908

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Argued February 12, 2009
Decided July 9, 2009

Judges
Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
Opinion by WOLLMAN, Circuit Judge.

US v. Azure, No. 08-2453

Appeal of a sentence for assault resulting in serious bodily injury is dismissed where defendant knowingly and voluntarily waived his right to appeal a sentence within the advisory guideline range, and enforcement of the waiver will not result in a miscarriage of justice. 

Read US v. Azure, No. 08-2453

Appellate Information
Appeal from the United States District Court for the District of North Dakota.
Submitted: December 9, 2008
Filed: July 8, 2009

Judges
Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
Opinion by COLLOTON, Circuit Judge.

US v. Cheney, No. 08-1509

Conviction for drug crimes and firearms possession is affirmed where there was an adequate factual basis to determine that defendant Holland possessed a firearm in furtherance of a drug crime. Appeal of defendant Cheney is dismissed where he voluntarily and knowingly waived his right of appeal as part of his sentencing agreement. 

Read US v. Cheney, No. 08-1509

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: December 9, 2008
Filed: July 8, 2009

Judges
Before COLLOTON, BRIGHT and SHEPHERD, Circuit Judges.
Opinion by COLLOTON, Circuit Judge.

Educational Credit Mgmt. Corp. v. Jesperson, No. 07-3888

In a bankruptcy action seeking an undue hardship discharge of substantial student loan debts, district court judgment is reversed where defendant is not entitled to an undue hardship discharge under 11 U.S.C. sec. 523(a)(8), as defendant is a recent law school graduate who is reasonably likely to be able to make significant debt repayments in the foreseeable future and qualified for the Department of Education's twenty-five year Income Contingent Repayment Plan. 

Read Educational Credit Mgmt. Corp. v. Jesperson, No. 07-3888

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: October 17, 2008
Filed: July 8, 2009

Judges
Before LOKEN, Chief Judge, BYE and SMITH, Circuit Judges.
Opinion by LOKEN, Chief Judge.
Concurring Opinion by SMITH, Circuit Judge. 
Dissenting Opinion by BYE, Circuit Judge.

Anderson-Tully Co. v. McDaniel, No. 08-3469

In an action seeking to quiet title and enjoin defendant from attempting to claim disputed waters for public use, district court judgment dismissing the suit is affirmed where: 1) the court erred in concluding the case is not ripe for adjudication as there is a live controversy; and 2) the court reached the proper result and the case must be dismissed as the suit against the Arkansas Attorney General in his official capacity is bared by the Eleventh Amendment and the Ex Parte Young exception does not apply. 

Read Anderson-Tully Co. v. McDaniel, No. 08-3469

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: June 9, 2009
Filed: July 7, 2009

Judges
Before BYE, HANSEN, and BENTON, Circuit Judges.
Opinion by BYE, Circuit Judge.

US v. Dotson, No. 08-3446

Conviction for conspiracy to commit murder-for hire and conspiracy to deliver a firearm to a convicted felon is affirmed where: 1) the evidence was sufficient to support defendant's convictions; and 2) the district court did not err in calculating defendant's advisory guidelines range for the murder-for-hire conviction. 

Read US v. Dotson, No. 08-3446

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: June 12, 2009
Filed: July 7, 2009

Judges
Before BYE, HANSEN, and BENTON, Circuit Judges.
Opinion by HANSEN, Circuit Judge.

US v. Tolliver, No. 08-3229

Sentence for drug crimes is affirmed where: 1) the district court did not err in concluding defendant was not eligible for modification of his crack sentence under 18 U.S.C. sec. 3582(c) as his applicable Guidelines range was his career offender range and that range had not been lowered by Amendment 706; and 2) the court did not err in denying defendant's motion for a sentence reduction as his sentence was explicitly based on a stipulation between the parties and not on a sentencing range that had subsequently been lowered by the Sentencing Commission. 

Read US v. Tolliver, No. 08-3229

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: June 10, 2009
Filed: July 7, 2009

Judges
Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
Opinion by MURPHY, Circuit Judge.

US v. Montes-Medina, No. 08-2940

Conviction and sentence for drug crimes is affirmed where: 1) the district court did not err in denying defendant's request for a Franks hearing as the warrant application established probable cause; 2) the evidence was sufficient to support defendant's convictions for conspiracy and possession of methamphetamine with intent to distribute; and 3) the court did not err in enhancing defendant's sentence for obstruction of justice based on its specific findings that defendant perjured himself at trial. Defendant Vega-Toscana's sentence is affirmed where the court did not commit procedural error in its calculation of the drug quantity attributable to defendant and in its calculation of the advisory Guidelines range. 

Read US v. Montes-Medina, No. 08-2940

Appellate Information
Appeal from the United States District Court for the District of Nebraska.
Submitted: April 17, 2009
Filed: July 7, 2009

Judges
Before LOKEN, Chief Judge, HANSEN and COLLOTON, Circuit Judges.
Opinion by HANSEN, Circuit Judge.

In a breach of contract action related to the sale of military aircraft to Kuwait, district court grant of summary judgment for defendant is affirmed where: 1) the court did not err in holding the parties' contract barred plaintiff's claim for a commission on the sale of certain Apache helicopters; 2) plaintiff's claims concerning commissions for the sale of A-4 fighters was time barred; 3) defendant did not breach the implied covenant of good faith and fair dealing by not renewing the parties' earlier agreement as it allowed for non-renewal; and 4) claims for quantum meruit and unjust enrichment are precluded by the unambiguous express terms of the parties' agreements.  

Read Al-Khaldiya Electronics and Electrical Equipment Co. v. The Boeing Co., No. 08-2686

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: March 10, 2009
Filed: July 7, 2009

Judges
Before GRUENDER, ARNOLD, and BENTON, Circuit Judges.
Opinion by BENTON, Circuit Judge.

US v. Bordeaux, No. 08-2280

Conviction for assault and discharging a firearm during a crime of violence is affirmed where: 1) the trial court did not abuse its discretion in denying defendant's motion for a mistrial as even assuming arguendo that the court's comment during voir dire was potentially prejudicial, there was no evidence that the trial's overall fairness was impacted by the court's passing comment; 2) the evidence was sufficient to support defendant's conviction for assault with a deadly weapon and knowingly discharging a firearm during and in relation to a crime of violence; 3) the court carefully reviewed the evidence concerning the victims' prior bad acts, and the court did not err in excluding some of the incidents as cumulative; and 4) the court did not err in refusing to allow defendant to impeach a witness with a prior statement as the statement was on a collateral matter and was not admissible under Federal Rule of Evidence 613(b). 

Read US v. Bordeaux, No. 08-2280

Appellate Information
Appeal from the United States District Court for the  District of South Dakota
Submitted: February 11, 2009
Filed: July 7, 2009

Judges
Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
Opinion by GIBSON, Circuit Judge.

US v. Rivera, No. 08-2538

District court order granting defendant's motion to suppress statements made during a traffic stop and the evidence found in his vehicle is reversed and remanded where: 1) the court erred in finding that defendant's traffic stop was unreasonably prolonged, as the officer did not unreasonably extend the seizure of defendant prior to the completion of the routine records check and reasonably kept him in the patrol car after the records check; and 2) the dog sniff at the end of the traffic stop was de minimis and did not violate the Fourth Amendment. 

Read US v. Rivera, No. 08-2538

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: January 15, 2009
Filed: July 6, 2009

Judges
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
Opinion by COLLOTON, Circuit Judge.

US v. Vargas, No. 06-3539

Conviction for drug crimes is affirmed where: 1) the evidence was sufficient to support the drug quantity determination; and 2) the joinder of defendant's trial with that of a co-defendant did not violate her Sixth Amendment Confrontation Clause rights under Bruton or result in any actual prejudice. 

Read US v. Vargas, No. 06-3539

Appellate Information
Appeal from the United States District Court for the District of North Dakota.
Submitted: March 13, 2009
Filed: July 6, 2009

Judges
Before WOLLMAN, RILEY, and COLLOTON, Circuit Judges.
Opinion by WOLLMAN, Circuit Judge.

US v. Alvarez-Manzo, No. 08-2647

District court order granting a motion to suppress evidence is affirmed where: 1) the seizure of defendant's bag from a bus cargo bay, without reasonable suspicion, violated his Fourth Amendment rights; and 2) even if defendant voluntarily consented to the subsequent search of his wallet, the government failed to demonstrate that the causal connection between the illegal seizures and defendant's consent was broken, and thus evidence found in the wallet was fruit of the poisonous tree and properly suppressed. 

Read US v. Alvarez-Manzo, No. 08-2647

Appellate Information
Appeal from the United States District Court for the District of Nebraska.
Submitted: December 10, 2008
Filed: July 6, 2009

Judges
Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
Opinion by SHEPHERD, Circuit Judge.

Cavataio v. City of Bella Villa, No. 08-2708

In an action for excessive force and assault and battery, district court's grant of summary judgment for defendant is affirmed where: 1) the court did not err in concluding defendant police chief's conduct during plaintiff's arrest was objectively reasonable as a matter of law and did not constitute excessive force; 2) the court did not err in its various evidentiary rulings; 3) the court did not err denying plaintiff's wife's substantive due process claims as her allegations did not meet the "shocks the conscience" threshold; and 4) the court did not err in denying plaintiff's municipal liability claim as there was no constitutional violation by individual officers. 

Read Cavataio v. City of Bella Villa, No. 08-2708

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: April 6, 2009
Filed: July 6, 2009

Judges
Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
Opinion by RILEY, Circuit Judge.

US v. Ross, No. 08-3040

Sentence for firearms possession is affirmed where the district court properly enhanced defendant's sentence under the Armed Career Criminal Act as defendant's prior convictions for first-degree drug trafficking constituted separate convictions under the Act. 

Read US v. Ross, No. 08-3040

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: March 13, 2009
Filed: July 6, 2009

Judges
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
Opinion by SHEPHERD, Circuit Judge.

US v. Anderson, No. 08-3402

Conviction and sentence for wire fraud, making false statements, and failure to appear is affirmed where: 1) the evidence was sufficient to support defendant's convictions for wire fraud and failure to appear; 2) the district court did not abuse its discretion in denying defendant's motion for new counsel, and made an adequate inquiry into defendant's dissatisfaction with his attorney; 3) the use of the 2007 Guidelines Manual did not create an ex post facto violation; and 4) the court's denial of defendant's request for a downward departure was unreviewable.    

Read US v. Anderson, No. 08-3402

Appellate Information
Appeal from the United States District Court for the District of North Dakota.
Submitted: June 10, 2009
Filed: July 6, 2009

Judges
Before MURPHY, ARNOLD and GRUENDER, Circuit Judges.
Opinion by GRUENDER, Circuit Judge.

US v. Binion, No. 08-3629

Conviction for drug crimes and money laundering is affirmed where: 1) officers had probable cause to stop the vehicle in which defendant was a passenger based on the driver's speeding violation; 2) the district court did not err in denying defendant's motion to suppress physical evidence as the officer had reasonable suspicion to investigate defendant and to frisk him; and 3) defendant's statements at the police station were voluntary and therefore admissible under the Fifth Amendment and Miranda. 

Read US v. Binion, No. 08-3629

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: June 12, 2009
Filed: July 6, 2009

Judges
Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.
Opinion by MURPHY, Circuit Judge.

US v. Alyass, No. 08-3976

Conviction for drug crimes is affirmed where the evidence was sufficient to support defendant's drug conspiracy conviction, as the government presented evidence of defendant's membership in the conspiracy that went far beyond mere presence and the jury made proper credibility determinations on the testimony of cooperating co-conspirators. 

Read US v. Alyass, No. 08-3976

Appellate Information
Appeal from the United States District Court for the District of Nebraska.
Submitted: April 17, 2009
Filed: July 6, 2009

Judges
Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
Opinion by RILEY, Circuit Judge.

Boyle v. Am. Auto Serv., Inc., No. 08-2584

District court order dismissing plaintiff's claim with prejudice for failure to prosecute his complaint is affirmed where: 1) the court properly applied Federal Rule of Civil Procedure 41(b) to the situation where plaintiff timely failed to serve the complaint before the case was removed from state to federal court; and 2) the court did not abuse its discretion in dismissing the case based on a 44-month delay in service as the delay was unexcused. 

Read Boyle v. Am. Auto Serv., Inc., No. 08-2584

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: February 13, 2009
Filed: July 2, 2009

Judges
Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
Opinion by SMITH, Circuit Judge.

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Howard v. Kansas City Police Dep't, No. 08-2448

District court order denying defendant-police officers' motion for summary judgment on plaintiff's claim of excessive force on the basis of qualified immunity is affirmed where: 1) the defendants violated plaintiff's Fourth Amendment right to be free from excessive force when they seized him, as the defendants' actions in forcing a victim with gunshot wounds to lie without a shirt on hot asphalt and causing second-degree burns were not objectively reasonable; and 2) the defendants had fair warning that their alleged conduct was not objectively reasonable, and thus unconstitutional. 

Read Howard v. Kansas City Police Dep't, No. 08-2448

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: January 16, 2009
Filed: July 2, 2009

Judges
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
Opinion by BYE, Circuit Judge.

In a sex discrimination action brought by female prison inmates, district court grant of summary judgment for defendant is affirmed where: 1) the female inmates had standing to challenge the constitutionality of the two challenged gender-explicit statutes; 2) the evidence in the record raises no inference of gender discrimination in the decision-making process because the statutes in question substantially relate to the important government objective of providing adequate segregated housing for female inmates, and any equal protection claim arising out the inmates' previous housing was mooted by their transfer to the Correction and Rehabilitation Center; 3) prison industry assignments were not subject to Title IX as the primary purpose of the program is employment, not education; and 4) the vocational education programs were within the scope of Title IX, and the district court did not err in finding that any differences in the programs offered men and women were a function of the location of the facilities and not gender discrimination. 

Read Roubideaux v. North Dakota Dep't of Corr. and Rehabilitation, No. 07-3780

Appellate Information
Appeal from the United States District Court for the District of North Dakota.
Submitted: November 13, 2008
Filed: July 2, 2009

Judges
Before MURPHY, HANSEN, and RILEY, Circuit Judges.
Opinion by HANSEN, Circuit Judge.

Bill M. v. Nebraska Dep't of Health and Human Serv., No. 08-2586

In a dispute involving attorney's fees, district court judgment is affirmed where the district court properly denied the plaintiffs' request for attorneys' fees under the applicable federal fee-shifting statutes, as the parties' settlement agreement did not require the court's approval, incorporation in a court order, or retention of jurisdiction for future oversight and enforcement and thus lacked the necessary judicial imprimatur to confer upon the plaintiffs prevailing party status. 

Read Bill M. v. Nebraska Dep't of Health and Human Serv., No. 08-2586

Appellate Information
Appeal from the United States District Court for the District of Nebraska.
Submitted: March 9, 2009
Filed: July 2, 2009

Judges
Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
Opinion by COLLOTON, Circuit Judge.

US v. Lee, No. 08-2860

Sentence for aiding and abetting assault with intent to rob a post office is affirmed where: 1) the district court did not err in overruling defendant's objections to the sentencing enhancements without requiring the government to present any evidence as there was sufficient evidence in the record to support each of the enhancements; and 2) the court did not err in imposing an enhancement under Guidelines sec. 2B3.1(b)(4)(B), as one of his accomplices struck a woman attempting to leave the post office during the robbery, thereby physically restraining the victim. 

Read US v. Lee, No. 08-2860

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: March 13, 2009
Filed: July 2, 2009

Judges
Before SMITH, GRUENDER, and BENTON, Circuit Judges.
Opinion by SMITH, Circuit Judge.

US v. Schmidt, No. 08-3093

Conviction and sentence for being a felon in possession of a firearm and ammunition is affirmed where: 1) the district court had jurisdiction over the offense as defendant's possession of a firearm manufactured out of country and ammunition manufactured out of state was sufficient to satisfy 18 U.S.C. sec. 922(g)(1)'s required nexus to interstate commerce; and 2) defendant's sentence was not unreasonable. 

Read US v. Schmidt, No. 08-3093

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: May 15, 2009
Filed: July 2, 2009

Judges
Before RILEY, SMITH, and COLLOTON, Circuit Judges.
Opinion by RILEY, Circuit Judge.

Chibwe v. Holder, No. 08-3407

Petition for review of an order denying asylum, withholding of removal, and protection under the Convention Against Torture is denied where: 1) the present does not have jurisdiction to review the agency's decision that plaintiff's asylum application was untimely; and 2) the agency did not err in denying their request for withholding of removal, as plaintiff's failed to cite any evidence in the record which would support a finding that they faced a threat because of their membership in a particular social group or any other relevant statutory ground if they were returned to their home country. 

Read Chibwe v. Holder, No. 08-3407

Appellate Information
Petition for Review of a Decision of the United States Board of Immigration Appeals.
Submitted: June 8, 2009
Filed: July 2, 2009

Judges
Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
Opinion by ARNOLD, Circuit Judge.

In an action brought to determine the priority of coverage between certain insurance policies, district court judgment is affirmed where: 1) defendant's demand for plaintiff to be involved in the defense of anticipated suits by injured parties is enough to create an actual controversy and give plaintiff the right to bring a declaratory judgment action to determine priority of coverage; and 2) the court did not err in determining that defendant's policy provided primary coverage for the accident and that its umbrella policy would also be triggered before the policy issued by plaintiff came into play. 

Read Clarendon National Ins. Co. v. United Fire & Casualty Co., No. 08-3535

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: June 11, 2009
Filed: July 2, 2009

Judges
Before BYE, HANSEN, and BENTON, Circuit Judges.
Opinion by BYE, Circuit Judge.

US v. Davis, No. 08-3536

Conviction for firearms possession is affirmed where: 1) the search of defendant's vehicle without a warrant was permissible under the Fourth Amendment as it was lawful search incident to arrest, and thus firearm found in vehicle was admissible; and 2) the court properly ruled that the search was permissible under the automobile exception to the warrant requirement as well. 

Read US v. Davis, No. 08-3536

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: April 14, 2009
Filed: July 2, 2009

Judges
Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
Opinion by SHEPHERD, Circuit Judge.

US v. Pepper, No. 09-1191

Sentence for drug crimes is affirmed where: 1) this court's prior remand did not require the district court to grant defendant a 40 percent downward departure for substantial assistance as the remand was a general remand for resentencing and did not place any limitations on the discretion of the district court judge in resentencing; 2) the court did not abuse its discretion by refusing to grant more than a 20 percent reduction based on defendant's substantial assistance; 3) the court did not abuse its discretion by denying defendant's request for a downward variance based on his post-sentencing rehabilitation and the  cost of his incarceration; and 4) defendant's sentence was not unreasonable. 

Read US v. Pepper, No. 09-1191

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: May 14, 2009
Filed: July 2, 2009

Judges
Before RILEY, SMITH, and COLLOTON, Circuit Judges.
Opinion by RILEY, Circuit Judge.

US v. Cruz-Zuniga, No. 08-3272

Conviction for drug crimes is affirmed where: 1) the district court did not abuse its discretion in using Eighth Circuit Model Jury Instruction 4.05A on the credibility of cooperating witnesses as opposed to defendant's proposed non-pattern instruction on the issue; 2) the court did not abuse its discretion by giving Model Instruction 3.11 on  reasonable doubt; 3) the court did not err uin applying a preponderance of the evidence standard to determine the drug quantity attributable to defendant for sentencing purposes; 4) the court's refusal to grant defendant a downward variance for acceptance of responsibility did not wrongfully punish him for exercising his constitutional right to stand trial; and 5) the court properly considered and applied the 18 U.S.C sec. 3553(a) sentencing factors and did not impose an unreasonable sentence. 

Read US v. Cruz-Zuniga, No. 08-3272

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: April 5, 2009
Filed: July 1, 2009

Judges
Before RILEY, BENTON, and SHEPHERD, Circuit Judges..
Opinion by RILEY, Circuit Judge.

Michigan Millers Mutual Ins. Co. v. DG&G Co., Inc., No. 08-2699

In a dispute involving insurance liability coverage, district court's grant of summary judgment for plaintiff is affirmed where: 1) the cotton was in defendant's custody, control and care at the time of the property-damaging occurrence and thus the control and care exclusion in the insurance policy issued by plaintiff applied; and 2) the damage to the cotton was not covered by defendant's agribusiness insurance policy as the defects, errors and omissions exclusion in the policy applies and precludes coverage of the loss. 

Read Michigan Millers Mutual Ins. Co. v. DG&G Co., Inc., No. 08-2699

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: January 16, 2009
Filed: July 1, 2009

Judges
Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
Opinion by LOKEN, Circuit Judge.

McNamara v. Yellow Transp., Inc., No. 08-2654

District court's denial of defendant's motion to compel arbitration of plaintiff's retaliation, gender discrimination, and Family and Medical Leave Act claims is reversed where plaintiff was not a transportation worker exempted from the Federal Arbitration Act and defendant did not waive its right to arbitrate by failing to move for arbitration during the EEOC proceedings prior to plaintiff's filing of this suit. 

Read McNamara v. Yellow Transp., Inc., No. 08-2654

Appellate Information
Appeal from the United States District Court for the District of South Dakota.
Submitted: February 13, 2009
Filed: July 1, 2009

Judges
Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.
Opinion by MELLOY, Circuit Judge.

US v. Balentine, No. 08-1871

District court order imposing restitution is affirmed where the requirement in 18 U.S.C. sec. 3664(d)(5) that the district court enter a restitution order within 90 days of sentencing does not divest the court of the authority to enter an order if the timing provision is breached, as such an interpretation finds no support in the text of the statute, would contravene the purposes of the Mandatory Victim Restitution Act and would reward defendants at the expense of their victims. 

Read US v. Balentine, No. 08-1871

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: April 15, 2009
Filed: July 1, 2009

Judges
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
Opinion by BYE, Circuit Judge.