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

August 2009 Archives

US v. Pliego, No. 08-3288

Defendant's conviction for producing child pornography is affirmed where: 1) there was sufficient evidence to support the jury's verdict that defendant produced child pornography; 2) district court did not abuse its discretion in refusing to instruct the jury that knowledge of the victim's age is an element of section 2251(a); 3) district court did not err in ruling that defendant could not raise his lack of knowledge of the boy's age as an affirmative defense; and 4) defendant's argument that section 2251(a) exceeds Congress's authority under the Commerce Clause is without merit.     

Read US v. Pliego, No. 08-3288

Appellate Information

Submitted: June 9, 2009

Filed: August 31, 2009

Judges

Opinion by Smith, Circuit Judge

US v. Gammage, No. 08-3819

District court's sentencing of a defendant to 180 months' imprisonment, convicted of knowingly possessing a firearm after having been convicted of a misdemeanor crime, is reversed and remanded where the court erred in determining that defendant was an armed career criminal, as the government failed to prove up defendant's convictions before he would be subject to the enhancement issue. Accordingly, district court is directed to resentence defendant based on the record already before it. 

Read US v. Gammage, No. 08-3819

Appellate Information

Submitted: June 9, 2009

Filed: August 28, 2009

Judges

Opinion by Arnold, Circuit Judge

Betz v. Chertoff, No. 08-3027

In a retaliation and employment discrimination action against the Department of Homeland Security (DHS) under the Age Discrimination in Employment Act, district court did not err: 1) in finding that DHS did not discriminate against the plaintiff because of her age; 2) in finding that plaintiff was not constructively discharged as her working conditions were not objectively intolerable; and 3) in concluding that plaintiff's retaliation claims were time-barred as she was sufficiently familiar with the 45-day time requirement. 

Betz v. Chertoff, No. 08-3027

Appellate Information

Submitted: June 11, 2009

Filed: August 28, 2009

Judges

Opinion by Arnold, Circuit Judge

Hutson v. Wells Dairy, Inc., No. 08-3895

In a sex and age employment discrimination case, district court's grant of summary judgment for the defendant is affirmed where plaintiff did not file a timely charge with the EEOC, the time for which began to run on the day of her termination as plaintiff's termination was a discrete act and not a continuing violation. Plaintiff did not plead claims of other discriminatory acts.     

Read Hutson v. Wells Dairy, Inc., No. 08-3895

Appellate Information

Submitted: May 12, 2009

Filed: August 27, 2009

Judges

Opinion by Colloton, Circuit Judge

US v. Ultsch, No. 08-3794

District court's enhanced sentencing of a defendant convicted of receiving, distributing and possessing child pornography under the sentencing Guidelines was not in error where: 1) for purposes of applying USSG section 2G2.2(b)(3)(B), defendant used LimeWire, a file-sharing software, to download and share child pornography; and 2) the sentence was not unreasonable.     

Read US v. Ultsch, No.  08-3794

Appellate Information

Submitted: June 8, 2009

Filed: August 27, 2009

Judges

Opinion by Colloton, Circuit Judge

Eastling v. BP Prods. N. Am., Inc., No. 08-3661

In a real estate contract case involving a restrictive covenant preventing the sale of any non-BP petroleum products on the property, district court's grant of defendant-BP's motion for summary judgment is affirmed where: 1) district court did not err in considering the real estate contract and the Petroleum Restriction together as the Petroleum restriction is part of the real estate contract to be read as a whole; 2) district court did not err in enforcing the covenant as it continued to benefit BP and the changed circumstances in BP's plans did not defeat the purpose of the restriction; and 3) the premise that successors are not bound because the restrictions do not run with the land is rejected.      

Eastling v. BP Prods. N. Am., Inc., No. 08-3661

Appellate Information

Submitted: June 9, 2009

Filed: August 27, 2009

Judges

Opinion by Gruender, Circuit Judge

Davidson v. Astrue, No. 08-3337

District court's denial of claimant's application for supplemental security income is affirmed where: 1) it was permissible for the ALJ to discount the opinion of treating physician that was inconsistent with the physician's clinical treatment notes, and physician's conclusory opinions with respect to the ultimate determination of disability was not supported by evidence; and 2) ALJ's formulation of claimant's mental residual functional capacity was supported by evidence on the record.      

Davidson v. Astrue, No. 08-3337

Appellate Information

Submitted: April 16, 2009

Filed: August 27, 2009

Judges

Opinion by Colloton, Circuit Judge

US v. McClellon, No. 08-3249

Conviction of defendant for possession of crack cocaine with intent to distribute is affirmed where: 1) district court did not err in denying defendant's motion for judgment of acquittal as there was sufficient evidence to support the jury's verdict that he possessed the intent to distribute; 2) the district court did not abuse its discretion in denying defendant's motion for a new trial as the admission of a cooperating witness's written plea agreement as evidence of the witness's credibility is left to the district court's discretion; and 3) imposition of the mandatory minimum sentence did not violate defendant's rights to due process and equal protection of the law.     

Read US v. McClellon, No. 08-3249

Appellate Information

Submitted:June 12, 2009

Filed: August 27, 2009

Judges

Opinion by Smith, Circuit Judge

Dixon v. Pulaski County Special Sch. Dist., No. 08-3201

In an employment race discrimination case, district court's ruling against plaintiff is affirmed where, even assuming plaintiff  has established a prima facie case, plaintiff has not offered sufficient evidence of pretext for a reasonable jury to infer that the School District's proffered rationale was pretext for discrimination.     

Read Dixon v. Pulaski County Special Sch. Dist., No. 08-3201

Appellate Information

Submitted: April 16, 2009

Filed: August 27, 2009

Judges

Opinion by Melloy, Circuit Judge

Heino v. Astrue, No. 08-3138

District court's denial of petitioner's application for disability insurance benefits and social security income is affirmed where:  1) substantial evidence on the record as a whole supports the ALJ's conclusion in not giving controlling weight to the treating physicians' opinions when there was conflicting evidence about claimant's ability to perform work; 2) ALJ did not err in rejecting claimant's subjective complaints based on the evidence; 3) ALJ sufficiently reviewed the record and his decision referenced claimant's obesity; 4) a hypothetical posed by the ALJ did not improperly exclude claimant's subjective pain allegations as it was unsupported by the record.     

Read Heino v. Astrue, No. 08-3138

Appellate Information

Submitted: May 12, 2009

Filed: August 29, 2009

Judges

Opinion by Colloton, Circuit Judge

Brace v. Astrue, No. 08-3023

District court's denial of petitioner's application for disability insurance benefits and supplemental security income is affirmed as the ALJ's conclusion was supported by sufficient evidence that petitioner's mental impairment was not disabling, so long as he took his prescribed medication, and a physician's opinion that petitioner was disabled was inconsistent with the evidence.     

Read Brace v. Astrue, No. 08-3023

Appellate Information

Submitted: May 13, 2009

Filed: August 27, 2009

Judges

Opinion by Colloton, Circuit Judge

McPhetridge v. IBEW, Local Union No. 53, No. 08-2803

In a labor case involving violations of union-IBEW's Constitution by two of its members, the district court did not abuse its discretion in dismissing plaintiffs' section 411(a)(5) claims for failure to exhaust available IBEW remedies.      

McPhetridge v. IBEW, Local Union No. 53, No. 08-2803

Appellate Information

Submitted: April 14, 2009

Filed: August 27, 2009

Judges

Opinion by Loken, Circuit Judge

Zarcon, Inc. v. NLRB, No. 08-2330

District court's denial of plaintiffs' request for attorney's fees and of their motions to propound requests for admissions and conduct further discovery is affirmed where: 1) applying the OPEN Government Act to award attorneys' fees and costs in this case would result in an impermissible retroactive application of the statute, as they were not available under the circuit's law at the time the NLRB settled the Freedom of Information Act suit; 2) reversing the district court's denial of plaintiff's request for admissions and further discovery could provide no additional relief.       

Read Zarcon, Inc. v. NLRB, No. 08-2330

Appellate Information

Submitted: February 13, 2009

Filed: August 27, 2009

Judges

Opinion by Shepherd, Circuit Judge

Becker v. Luebbers, No. 07-3031

In habeas proceedings arising from petitioner's conviction of attempted rape, district court's denial of relief is affirmed as there was no unreasonable application of Strickland in the state court's denial of defendant's ineffective assistance of counsel claim.      

Read Becker v. Luebbers, No. 07-3031

Appellate Information

Submitted: December 9, 2008

Filed: August 27, 2009

Judges

Opinion by Melloy, Circuit Judge

Keiser v. US, No. 07-3878

Sentence and conviction of defendant on bank fraud related charges is affirmed where: 1) district court did not abuse its discretion in denying defendant's motion to continue sentencing as defendant's attorney had sufficient time to prepare for sentencing and as reflected by his conduct; 2) district court's failure to inform defendant of right to standby counsel did not negate the validity of defendant's waiver of right to counsel, as defendant had no absolute right to such; 3) district court did not abuse its discretion in admitting expert testimony regarding fiduciary duties of commodities brokers, as any unfair prejudice to defendant was slight and insufficient to outweigh its probative value ; and 4) district court did not err in applying the sentencing enhancements under the Guidelines.   

Read Keiser v. US, No. 07-3878

Appellate Information

Submitted: June 10, 2009

Filed: August 27, 2009

Judges

Opinion by Smith, Circuit Judge

EEOC v. Siouxland Oral Maxillofacial Surgery Assoc., No. 07-2419

In an employment and sex discrimination case under Title VII, district court's judgment is reversed in part and remanded where: 1) district court erred in not submitting plaintiff's claim for punitive damages to the jury and granting defendant judgment as a matter of law on that claim as under Title VII, punitive damages are available if a plaintiff shows that the employer engaged in intentional discrimination with malice or with reckless indifference to the federally protected rights, and evidence presented by the EEOC at trial was sufficient for a jury to find that defendant acted in the face of a perceived risk that it was violating plaintiffs' Title VII rights; 2)  district court did not abuse its discretion in denying EEOC's request for injunctive relief to enjoin defendant from discriminating on the basis of pregnancy or retaliating against any employee who complains of unlawful discrimination as, in light of the two isolated instances of discrimination, there was not a consistent practice of discrimination suggesting further discrimination was likely;  3) court declined to address the district court's award of attorney's fees at this time as further proceedings are necessary on the issue of punitive damages.     

Read EEOC v. Siouxland Oral Maxillofacial Surgery Assoc., No. 07-2419

Appellate Information

Submitted: March 12, 2009

Filed: August 27, 2009

Judges

Opinion by Colloton, Circuit Judge

Medhaug v. Astrue, No. 08-2751

District court's order overturning a denial of claimant's disability insurance benefits is reversed and the order denying benefits is affirmed where ALJ's finding that petitioner retained the ability to perform his past relevant work is supported by substantial evidence on the record as a whole.       

Read Medhaug v. Astrue, No. 08-2751

Appellate Information

Submitted: May 12, 2009

Filed: August 26, 2009

Judges

Opinion by Riley, Circuit Judge

Sandoval v. Am. Building Maint. Indus., Inc., No. 08-2271

In an employment sex discrimination case, district court rulings against plaintiffs are affirmed in part where: 1) plaintiffs' amended complaint was untimely under the equitable tolling doctrine as plaintiffs did not act with due diligence, or under the relation back doctrine as plaintiffs' failure to name the company's subsidiary was not the result of a mistake concerning the identity of the proper party; 2) district court's grant of summary judgment against timely plaintiffs on their sex discrimination, quid pro quo sexual harassment, retaliation, and a hostile workplace claim was proper.  A ruling finding that there was no genuine issue of material fact as to whether defendants-parent and subsidiary acted as an integrated enterprise is reversed and remanded given their interrelated operations. Dismissal of two plaintiffs' hostile workplace claims is remanded to determine whether evidence of widespread sexual harassment was sufficient to put the subsidiary on notice.     

Read Sandoval v. Am. Building Maint. Indus., Inc., No. 08-2271

Appellate Information

Submitted: February 11, 2009

Filed: August 26, 2009

Judges

Opinion by Bye, Circuit Judge

Abdelwahab v. Frazier, No. 08-1078

In an action seeking an order compelling officials of the Department of Homeland Security (DHS) to approve a spousal immigrant visa petition, and to set aside the agency's revocation of a previously approved immigrant worker visa petition, dismissal of Egyptian petitioner's action is affirmed where the court correctly concluded that it lacked jurisdiction to review revocation of petitioner's I-140 immigrant worker visa, as the Secretary of Homeland Security has the discretion to revoke the approval of the petition and is not subject to judicial review under 8 U.S.C. section 1155.     

Read Abdelwahab v. Frazier, No. 08-1078

Appellate Information

Submitted: May 14, 2009

Filed: August 26, 2009

Judges

Opinion by Loken, Circuit Judge

Wooten v. Norris, No. 06-4068

District court's denial of Arkansas death-row inmate's petition for habeas relief claiming ineffective assistance of counsel is affirmed where: 1) defendant's claims are procedurally defaulted as he failed to develop the factual basis for his claim in state court; 2) counsel's conduct, although deplorable, was not an external factor that would remedy the default; 3) counsel's misconduct did not destroy the agency relationship between counsel and defendant; 4) defendant's actual innocence claim is rejected as the district court did not err in determining that the evidence tendered by the new counsel did not create a reasonable probability that a jury could have acquitted defendant or found the death-qualifying aggravator inapplicable; and 5) district court correctly rejected defendant's Rule 59(e) motion and his motion to stay federal proceedings as defendant's motion to Recall and Reopen is not a proper vehicle for exhausting state remedies in Arkansas or creating a state record that might support federal habeas claims.  

Read Wooten v. Norris, No. 06-4068

 Appellate Information

Submitted: September 25, 2009

Filed: August 26, 2009

Judges

Opinion by Melloy, Circuit Judge

Friends of Lakeview School v. Beebe, No. 08-2161

In a case involving school districts' consolidations under Arkansas' Act 60, district court's grant of defendants' motion to dismiss is affirmed where Act 60 is a facially neutral law that does not infringe on a fundamental right and survives rational basis review because the State of Arkansas has a legitimate governmental interest in consolidating school districts to achieve economies of scale and other efficiencies and the classification drawn between school districts based on their average daily membership is rationally related to advancing that interest. 

Read Friends of Lakeview School v. Beebe, No. 08-2161

Appellate Information

Submitted: April 14, 2009

Filed: August 25, 2009

Judges

Opinion by Gruender, Circuit Judge

Bandey-Bey v. Crist, No. 08-2084

In a case involving plaintiff-inmate's 42 U.S.C. section 1983 action against various prison officials, summary judgment for defendants is affirmed where: 1) plaintiff's claim that the defendants denied him access to the courts by failing to grant him the library time he requested was properly rejected as he did not demonstrate an actual injury; 2) plaintiff failed to show that the disciplinary measures taken against him by the defendants was in retaliation for pursuing his claims; 3) plaintiff failed to make a sufficient showing of a substantive due process claim. 

Read Bandey-Bey v. Crist, No. 08-2084

Appellate Information

Submitted: August 7, 2009

Filed: August 25, 2009

Per Curium Opinion

Yankton Sioux Tribe v. Podhradsky, No. 08-1441

District court's ruling on remand involving status of Indian lands held in trust is affirmed in part and vacated in part where:  1) the court correctly concluded that the agency trust lands, the outstanding allotments, and the IRA trust lands are part of the Yankton Sioux Reservation and are Indian country under 18 U.S.C. section 1151(a); 2) the court's alternative holding that the miscellaneous trust lands constitute a dependent Indian community and are Indian country under section 1151(b) is affirmed; 3) court's holding that the fee lands continuously held in Indian ownership are reservation under section 1151(a) is vacated and; 4) the court's denial of all other claims for relief is affirmed.     

Read Yankton Sioux Tribe v. Podhradsky, No. 08-1441

Appellate Information

Submitted: March 11, 2009

Filed: August 25, 2009

Judges

Opinion by Murphy, Circuit Judge

Scobey v. Nucor Steel-Arkansas, No. 08-1192

District court's dismissal on summary judgment of plaintiff's claims of employment retaliation and violations of the Family and Medical Leave Act (FMLA) is affirmed where: 1) plaintiff failed to show he provided adequate notice to his employer that he had a serious health condition rendering him unable to work; 2) plaintiff's claim that defendant interfered with his FMLA rights by demoting him for unexcused absences must fail; 3) plaintiff's retaliation claim fails for the same reasons as his interference claim.          

Read Scobey v. Nucor Steel-Arkansas, No. 08-1192

Appellate Information

Submitted: December 11, 2008

Filed: August 25, 2009

Judges

Opinion by Shepherd, Circuit Judge

US v. Jenkins, No. 08-3616

District court's sentencing of a defendant convicted of wire fraud is affirmed where: 1) district court did not commit clear error in making a reasonable estimate of loss; and 2) court did not commit err in imposing the abuse of trust enhancement under U.S.S.G. section 3B1.3.     

Read US v. Jenkins, No. 08-3616

Appellate Information

Submitted: June 12, 2009

Filed: August 24, 2009

Judges

Opinion by Gruender, Circuit Judge

US v. Gray, No. 08-3497

District court's sentencing of a defendant convicted of drug possession with intent to distribute and it's denial of defendant's motion to declare unconstitutional the statute establishing a mandatory minimum is affirmed where:  1) court did not commit plain error as it understood its authority to vary from the guidelines and the career offender guidelines; 2) the court did not impose a substantively unreasonable sentence; and 3) defendant lacked standing to challenge the constitutionality of 21 U.S.C. section 841(b)(1)(B)(iii).    

Read US v. Gray, No. 08-3497

Appellate Information

Submitted: June 10, 2009

Filed: August 24, 2009

Judges

Opinion by Colloton, Circuit Judge

Sherbrooke v. City of Pelican Rapids, No. 08-2645

In a civil rights action brought against a city, its police chief and two police officers, district court's final judgment in favor of the defendants on all claims is affirmed where: 1) the district court properly dismissed defendant's claims for false arrest and malicious prosecution as his arrest was supported by probable cause; and 2) a conspiracy claim was correctly dismissed as defendant's sole contention was that the police officers conspired to commit the torts of false arrest and malicious prosecution. 

Sherbrooke v. City of Pelican Rapids, No. 08-2645

Appellate Information

Submitted: March11, 2009

Filed: August 24, 2009

Judges

Opinion by Colloton, Circuit Judge

 

Mathena v. US, No. 08-2184

District court's denial of defendant's writ of habeas corpus is reversed and remanded to dismiss the petition without prejudice where: 1) district court erred in finding defendant's petition was untimely under 28 U.S.C. section 2241; and 2) defendant failed to exhaust his administrative remedies within the Bureau of Prisons.      

Read Mathena v. US, No. 08-2184

Appellate Information

Submitted: April 15, 2009

Filed: August 24, 2009

Judges

Opinion by Colloton, Circuit Judge

Ward v. Norris, No. 05-4381

In a capital murder case, district court's rulings denying defendant a writ of habeas corpus and denying his motion for relief from judgment and motion to alter or amend the judgment are affirmed where: 1) defendant's motions, in substance, comprise a claim of ineffective or incompetent representation by federal habeas counsel, and the Antiterrorism Death Penalty Act specifically prohibits such grounds for relief; 2) defendant's claims on appeal concerning ineffective assistance of counsel represented an impermissible broadening of claims to include federal bases before both the state courts and the district court; and 3) defendant's claim that the trial court's disparate treatment of the defense counsel's requests to approach the bench deprived him of a fair trial failed as rulings on those requests did not reflect actual or presumed bias rising to the level of a constitutional violation or structural error.      

Read Ward v. Norris, No. 05-4381

Appellate Information

Submitted: September 24, 2008

Filed: August 24, 2009

Judges

Opinion by Wollman, Circuit Judge

Christian v. Dingle, No. 08-2294

In habeas proceedings resulting from petitioner's convictions of second-degree unintentional felony murder following a joint jury trial with two co-defendants, denial of the habeas petition is affirmed where defendant's joinder with his co-defendants for trial and the state trial court's decision not to sever his trial did not constitute an unreasonable application of clearly established federal law as determined by the Supreme Court in Zafiro.        

Read Christian v. Dingle, No. 08-2294

Appellate Information

Submitted: June 11, 2009

Filed: August 21, 2009

Judges

Opinion by Smith, Circuit Judge

Borntrager v. Cent. States SE & SW Areas Pension Fund, No. 08-2008

In a case involving the expulsion of plaintiffs-employer and employees from a pension fund, district court's judgment for defendant is affirmed where: 1) the court had jurisdiction over the wrongful expulsion claim under 29 U.S.C. section 185(a); 2) the court did not err in granting summary judgment in favor of defendants under the broad language of Article III section 1 of the Trust Agreement and defendant-Central States' determination that it had the authority to expel plaintiffs was not contrary to the Labor Management Relations Act or ERISA; 3) the defendant's expulsion of plaintiffs did not violate this circuit's precedents; and 4) the court did not err in awarding attorney fees and litigation costs to defendant under the Trust Agreement.     

Borntrager v. Cent. States SE & SW Areas Pension Fund, No. 08-2008

Appellate Information

Submitted: May 12, 2009

Filed: August 21, 2009

Judges

Opinion by Riley, Circuit Judge

Tian v. Holder, No. 08-3391

Petition for review of a denial of Chinese national's application for asylum, withholding of removal, and protection under the Convention Against Torture is affirmed where:  1) IJ and BIA correctly determined that petitioner's conviction qualified as an aggravated felony because loss to the victims exceeded $10,000 and he was thus removable as an aggravated felon and statutorily ineligible for asylum; and 2) the IJ and BIA applied the correct legal standard in determining that petitioner's conviction qualifies as a particularly serious crime. 

Read Tian v. Holder, No. 08-3391

Appellate Information

Submitted: June 10, 2008

Filed: August 19, 2009

Judges

Opinion by Judge Gruender

Iowa Dep't of Human Servs. v. Ctrs. for Medicare, No. 08-3284

Denial of Iowa's petition for review of the Secretary of Health and Human Services's decision rejecting a plan proposing changes to the state's Medicaid program relating to multiple source drugs is denied where the Centers for Medicare and Medicaid Service's rejection of Iowa's proposed plan was not arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or contrary to law. 

Read Iowa Dep't of Human Servs. v. Ctrs. for Medicare, No. 08-3284

Appellate Information

Submitted: June 11, 2008

Filed: August 19, 2009

Judges

Opinion by Judge Shepherd

Taylor v. Roper, No. 07-2882

In a capital murder case, district court's judgment denying defendant a writ of habeas corpus is affirmed where: 1) defendant failed to rebut by clear and convincing evidence the presumption that the state's peremptory strikes in jury selection of the guilt phase were race-neutral; and 2) state's race-neutral reasons for exercising peremptory strikes at the penalty phase was not pretextual, and thus not contrary to clear and convincing evidence or unreasonable. 

Read Taylor v. Roper, No. 07-2882

Appellate Information

Submitted: January 15, 2008

Filed: August 19, 2009

Judges

Opinion by Judge Colloton

Kennedy Bldg. Assoc. v. CBS Corp., No. 07-3622

In an environmental case involving the clean-up of a contaminated site, a modified injunction stating that defendant-CBS has "substantially complied" with a Minnesota Decision Document and imposing no additional requirements on it is affirmed in part and vacated in part where: 1) the district court's decision was consistent with the prior mandate from the circuit court; 2) there was substantial evidence in the record that CBS completed the remediation required by the Decision Document, and thus there was no error in finding that no further relief was necessary under Paragraph 1 of the injunction; 3) denial of plaintiff's requests to increase the amount of a performance bond posted by CBS was proper; but 4) a denial of post-judgment response costs is vacated and remanded for further proceedings. 

Read Kennedy Bldg. Assoc. v. CBS Corp., No. 07-3622

Appellate Information

Submitted: October 15, 2008

Filed: August 18, 2009

Judges

Opinion by Judge Gibson

US v. Livingstone, No. 08-3418

 A conviction for conspiracy to distribute illegal drugs is affirmed where: 1) the district court did not abuse its discretion in denying the defendant's motion for a bill of particulars; and 2) defendant's Brady claim is rejected where, despite the government's failure to disclose certain impeachment evidence, defendant in fact effectively cross-examined the witnesses at issue about inconsistencies between what they had said to police and what they testified to. 

Read US v. Livingstone, No. 08-3418

Appellate Information

Submitted: June 9, 2009

Filed: August 18, 2009

Judges

Opinion by Judge Arnold

 

US v. Barraza, No. 08-3488

A conviction for the kidnapping of a woman and her young son resulting in their deaths is affirmed where: 1) there was no abuse of discretion in the district court's denial of defendant's motion to strike a juror for cause; 2) the admission of three items of evidence over hearsay objections was proper; 3) the federal kidnapping statute is not unconstitutionally vague nor overbroad; and 4) the life imprisonment sentence was not unconstitutionally disproportionate under the circumstances.

Read US v. Barraza, No. 08-3488

Appellate Information

Submitted: June 9, 2009

Filed: August 17, 2009

Judges

Opinion by Judge Benton

US v. McMullin, No. 08-3477

In a prosecution for being a felon in possession of a firearm, denial of defendant's motion to suppress is reversed and remanded where U.S. Marshals made a second warrantless entry into defendant's house without exigent circumstances or consent in violation of defendant's Fourth Amendment rights.

Read US v. McMullin, No. 08-3477

Appellate Information

Submitted: April 15, 2009

Filed: August 17, 2009

Judges

Opinion by Judge Bright

DG&G, Inc. v. FlexSol Packaging Corp., No. 08-3417

In a product liability action, summary judgment for defendant is affirmed where: 1) plaintiff knew or reasonably may be expected to have known of the specific danger of bagging cotton with excess moisture, and thus its strict liability failure-to-warn claim failed; 2) plaintiff failed to establish reasonably anticipated use, and thus adverse rulings on strict liability defective-product, negligence, and implied warranty claims were proper; 3) the court did not abuse its discretion in considering cured unsworn expert reports; and 4) the court did not abuse its discretion in excluding expert testimony under Daubert.

Read DG&G, Inc. v. FlexSol Packaging Corp., No. 08-3417

Appellate Information

Submitted: June 10, 2009

Filed: August 17, 2009

Judges

Opinion by Judge Benton

Northstar Industries, etc. v. Merrill Lynch & Co., No. 08-2480

District court's dismissal of plaintiff's fraudulent representation claim against Merrill Lynch for the balance of a brokerage fee it claimed due is reversed and remanded where plaintiff's claim does not, at the 12(b)(6) stage, fail as a matter of law on the basis of no recoverable damages and, in fact, survives defendant's motion to dismiss.

Read Northstar Industries, etc. v. Merrill Lynch & Co., No. 08-2480

Appellate Information

Submitted: March 11, 2009

Filed: August 17, 2009

Judges

Opinion by Circuit Judge Bright

Takele v. Mayo Clinic, No. 08-1980

In a discrimination and retaliation action brought by an employee, the district court did not err in granting summary judgment in favor of defendant where the plaintiff failed to make a prima facie case of racial discrimination as plaintiff did not show facts giving rise to an inference of discrimination. Furthermore, even if he could establish his prima facie case, defendant nevertheless articulated a legitimate, non-discriminatory reason for terminating him and plaintiff failed to point to any evidence supporting a finding of pretext.

Read Takele v. Mayo Clinic, No. 08-1980

Appellate Information

Submitted: May 13, 2009

Filed: August 17, 2009

Judges

Opinion by District Judge Miller

G.T. Sales and Manufacturing v. HBD Industries, No. 08-1849

Dismissal of defendant's indemnification action via summary judgment is reversed where: 1) the district court was permitted to, and did effectively, enter adverse summary judgment sua sponte when it denied defendant's motion for summary judgment; 2) it would be improper at this point to allow defendant to alter its posture as to choice of law when it invited the district court to apply Missouri law; and 3) the court improperly granted summary judgment in favor of third-party defendant on the ground that it did not owe a duty to the plaintiff coextensive and identical to the duty defendant owed to the plaintiff.

Read G.T. Sales and Manufacturing v. HBD Industries, No. 08-1849

Appellate Information

Submitted: October 16, 2008

Filed: August 17, 2009

Judges

Opinion by Judge Shepherd

US v. Northshore Mining Co., No. 08-1423

An order holding that certain parts of a 1975 injunction regulating air emissions from defendant's taconite pellet operation at Silver Bay, Minnesota, were moot is affirmed where: 1) defendant-mining company was not aggrieved by the district court's order such that there was jurisdiction over its appeal; 2) similarly, the government is not an aggrieved party and its cross-appeal is dismissed; 3) the court did not abuse its discretion in vacating sua sponte the injunctions' air-emissions provision of the injunction where state and agency regulations parallel the provisions in the injunction.

Read US v. Northshore Mining Co., No. 08-1423

Appellate Information

Submitted: February 11, 2009

Filed: August 17, 2009

Judges

Opinion by Judge Gruender

WIlliams v. Norris, No. 07-1984

In a capital murder case, district court's judgment granting a writ of habeas corpus is reversed where a state court ruling based on the post-conviction record was not contrary to nor an unreasonable application of the Strickland standard where the defendant failed to present any evidence of ineffective assistance of counsel at the state post-conviction proceeding.  District court's dismissal of the defendant's remaining claims are affirmed where: 1) there was no error in rejecting defendant's Batson claims; 2) a claim regarding the denial of a strike a juror for cause was properly rejected; 3) for purposes of the admission of a partially inculpatory statement, state courts' rejection of the claim did not involve an unreasonable application of Colorado v. Spring; 3) defendant's challenges to the constitutionality of Arkansas' death penalty laws are foreclosed by precedent; and 4) claims regarding aggravating factor issues were properly rejected.

Read WIlliams v. Norris, No. 07-1984

Appellate Information

Submitted: January 15, 2009

Filed: August 17, 2009

Judges

Opinion by Judge Loken

NLRB v. John T. Jones Construction Co., Inc., No. 08-3318

National Labor Relations Board order awarding back pay to four employees of defendant is enforced and the cross-petition for review of the back pay calculation is denied where: 1) the Board was not arbitrary or unreasonable in excluding the value of the interim fringe benefits in determining net back pay; 2) the Board was not arbitrary or unreasonable in including overtime hours worked by the comparable employees in setting back pay; and 3) defendant's various challenges to the awards of the individual employees are without merit. 

Read NLRB v. John T. Jones Construction Co., Inc., No. 08-3318

Appellate Information
Application for Enforcement and Cross-Petition for Review of an Order of the National Labor Relations Board.
Submitted: April 14, 2009
Filed: August 14, 2009

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

Moore v. Am. Family Mut. Ins. Co., No. 08-3238

In an action for breach of an insurance contract and bad faith, district court judgment against defendant is affirmed where: 1) defendant failed to preserve for review its contention that it was entitled to judgment as a matter of law on its bad-faith claim; 2) objection to the instruction on bad faith was waived as defendant failed to raise the objection during the instruction conference before the case was submitted, and the jury instructions as a whole fairly and adequately submitted the issues in the case to the jury; 3) the court did not abuse its discretion in denying defendant's motion for a mistrial or a new trial based on juror misconduct, as the misconduct was innocuous and the juror was removed from the panel; 4) the jury verdict on the bad faith claim was supported by sufficient evidence, and the damages award was not excessive; and 5) the court did not err in submitting the punitive damages issue to the jury, and the jury's award was neither excessive nor unconstitutional. 

Read Moore v. Am. Family Mut Ins. Co., No. 08-3238

Appellate Information
Appeal from the United States District Court for the District of North Dakota.
Submitted: June 10, 2009
Filed: August 14, 2009

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

US v. Stults, No. 08-3183

Conviction and sentence for possessing one or more photographs and other matter containing images of child pornography is affirmed where: 1) users of peer-to-peer file sharing software do not have a reasonable expectation of privacy in files they make available to others using the software, and the warrantless search of defendant's computer through the software did not violate his Fourth Amendment rights; 2) the affidavit submitted by law enforcement in support of the search warrant established probable cause; 3) defendant's prior conviction for attempted sexual assault on a child was sufficient to invoke the mandatory minimum sentence under 18 U.S.C. sec. 2252(b)(2); 4) the court did not err in applying the five-level enhancement under U.S.S.G. sec. 2G2.2(b)(3)(B) as the government produced sufficient evidence to prove defendant expected to receive child pornography when he used the software; 5) sentence was not unreasonable; and 6) special conditions of supervised release which controlled defendant's contact with children, access to pornography and use of the Internet and cameras were related to his offense and were reasonable measures to protect the public. 

Read US v. Stults, No. 08-3183

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

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

US v. Foster, No. 08-2344

Sentence for drug crimes is vacated and remanded where: 1) a criminal defendant should have access to the material on which the court will base its sentencing decision and an opportunity to respond to information that is prejudicial to the defendant's cause when the court is evaluating a motion under 18 U.S.C. sec. 3582(c)(2); and 2) the procedure employed by the court with respect to the motion for reduction was an abuse of discretion as the defendant was not provided with a copy of the probation office's memorandum regarding defendant's motion for reduction of sentence and was unable to answer the negative information in the memo. 

Read US v. Foster, No. 08-2344

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: April 15, 2009
Filed: August 14, 2009

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

US v. Sisco, No. 07-3161

Sentence for drug crimes is affirmed where defendant's appeal of the upward departure from his sentencing guidelines range fell within the scope of his valid appeal waiver, and defendant has not shown that the sentence ultimately imposed was illegal or constituted a miscarriage of justice under existing applicable precedent, and thus the appeal must be dismissed. 

Read US v. Sisco, No.  07-3161

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: February 12, 2009
Filed: August 14, 2009

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

US v. Vincent, No. 07-1397

Sentence for being a felon in possession of a firearm is affirmed where the district court did not err in determining that defendant's prior conviction under Arkansas law for possession of a sawed-off shotgun was a violent felony under 18 U.S.C. sec. 924(e)(1), as the offense was similar in kind and in degree of risk posed to the offenses listed in the guidelines. 

Read US v. Vincent, No. 07-1397

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: August 3, 2009
Filed: August 14, 2009

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

US v. Mills, No. 06-2306

Sentence for escape and theft of government property is vacated and remanded where the court can not determine whether defendant's escape was a walkaway escape or an escape from a penal institution based on the limited factual record before the court. On remand, the court should analyze defendant's escape conviction in light of Chambers and Begay, and should apply a modified categorical approach to determine whether defendant's escape was a crime of violence under the sentencing guidelines. 

Read US v. Mills, No. 06-2306

Appellate Information
On remand from the Supreme Court of the United States
Submitted: July 8, 2009
Filed: August 14, 2009

Judges
Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
Per Curium Opinion

US v. Gammage, No. 08-3819

Sentence for firearms possession is reversed and remanded where the district court erred in determining that defendant was an armed career criminal and thus subject to an enhanced sentence, and the matter is remanded for resentencing on the basis of the record already before the court.    

Read US v. Gammage, No. 08-3819

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

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

Pagonis v. US, No. 08-2798

In an action seeking relief in a tax dispute with the government, district court's dismissal for lack of subject matter jurisdiction is affirmed where defendant brought the suit suit for the purpose of restraining the assessment or collection of a tax, and thus the Anti-Injunction Act applied and deprived the court of jurisdiction.    

Read Pagonis v. US, No. 08-2798

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

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

US v. Myers, No. 08-3047

Conviction for knowingly attempting to transfer obscene material to a person under the age of sixteen and knowingly attempting to induce a child to engage in criminal sexual activities is affirmed where: 1) the district court did not err in finding that defendant was not entrapped as a matter of law, as a reasonable jury could have concluded that, even if induced, defendant was predisposed to violate the law; 2) there was sufficient evidence to support defendant's conviction for enticing a minor to engage in criminal sexual activity, as a reasonable jury could have found he knew he was in a romance chat room and believed he was communicating with a fourteen-year-old girl, and thus intended to entice a minor to engage in illegal sex; and 3) the court did not err in admitting transcript of internet chats.   

Read US v. Myers, No. 08-3047

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: May 12, 2009
Filed: August 10, 2009

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

Thomas v. US Bank Nat'l Assoc. ND, No. 08-3302

District court judgment denying plaintiff's motion to remand to state court is reversed where the court erred in finding that plaintiffs' claim under the Missouri Second Mortgage Loan Act was completely preempted by the Depository Institutions Deregulation and Monetary Control Act, as the federal remedy does not apply and therefore is not the exclusive remedy. The case is remanded to district court with directions to reinstate the claims and remand the case to state court.   

Read Thomas v. US Bank Nat'l Assoc. ND, No. 08-3302

Appellate Information
Appeal from the United States District Court for the Westesrn District of Missouri.
Submitted: April 13, 2009
Filed: August 6, 2009

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

District court order denying defendant's motion to compel arbitration and stay proceedings involving claims of patent and trade dress infringement is reversed where: 1) the Federal Circuit does not have exclusive jurisdiction over the appeal as the court's order was neither final nor injunctive, and the present court has jurisdiction pursuant to 9 U.S.C. sec. 16(a)(1); and 2) the court erred in denying the motion as the dispute fell within the broad language of one of the arbitration provisions of the parties' agreement.    

Read Industrial Wire Products, Inc. v. Costco Wholesale Corp., No. 08-3189

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: April 15, 2009
Filed: August 6, 2009

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

Bobadilla v. Carlson, No. 08-3010

District court judgment granting a petition for writ of habeas corpus is affirmed where: 1) the court did not err in concluding that the Minnesota Supreme Court unreasonably applied Crawford v. Washington when it found petitioner's Sixth Amendment Confrontation Clause rights were not violated by the admission of statements the victim made to a social worker in the presence of a detective, as the statements were testimonial in nature; and 2) the admission of the statements was not harmless error as the prosecution's case rested heavily on the social worker's testimony and her videotape of the interview with the victim. 

Read Bobadilla v. Carlson, No. 08-3010

Appellate Information
Appeal from the United States District Court for the District of of Minnesota.
Submitted: May 12, 2009
Filed: August 6, 2009

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

Bacon v. Liberty Mutual Ins. Co., No. 08-2935

In an action for breach of contract and fraudulent misrepresentation, district court's dismissal on forum non conveniens grounds is reversed where: 1) the court lacked the power of dismissal under 28 U.S.C. sec. 1404(a) as there is an alternative federal forum in Nebraska and thus this is not a situation in which the common-law doctrine of forum non conveniens has continuing application in federal court; and 2) even if transfer under 28 U.S.C. sec. 1404(a) were unavailable, the court still erred in its application of traditional forum non conveniens principles. 

Read Bacon v. Liberty Mutual Ins. Co., No. 08-2935

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Submitted: March 11, 2009
Filed: August 6, 2009

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

US v. Trogdon, No. 08-2858

Conviction for drug crimes is affirmed where: 1) the district court did not err in admitting tape recordings into evidence as the recordings were audible enough to provide the jury with the gist of the conversations, and the inaudible portions were not so pervasive as to render the recordings untrustworthy as a whole; 2) the court did not abuse its discretion in admitting evidence of defendant's prior drug conviction, as the convictions were admissible under Rule 404(b) since  they were relevant to defendant's intent and knowledge and involved a similar offense; and 3) the evidence was sufficient to sustain the conviction.    

Read US v. Trogdon, No. 08-2858

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

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

Editor's Note 8/7/09: Correction made to party's name.

Sprint Spectrum, L.P. v. Platte County, MO, No. 08-1965

District court judgment is affirmed where the County Commission's denial of defendant's application for a special use permit to construct a telecommunications tower complied with the Telecommunications Act of 1996 as it was in writing and supported by substantial evidence.   

Read Sprint Spectrum, L.P. v. Platte County, MO, No. 08-1965

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: January 15, 2009
Filed: August 6, 2009

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


 

Harding County, SD v. Frithiof, No. 08-1540

In an action for breach of contract and tort involving a lease to county land, district court judgment is affirmed where: 1) defendant did not breach a fiduciary duty to disclose during lease negotiations with the county that he had previously discovered, removed and attempted to sell fossil remains from the lease lands as the parties were dealing at arm's length, the county knew remains had been found in similar situations and defendant could reasonably expect the county to make its own investigations and protect its own interests; 2) the court did not err in dismissing county's claims for constructive and actual fraud; 3) the court did not err in dismissing the claim for rescission of the lease agreement based on unilateral mistake of fact as the county made no attempt to determine whether there had been any discoveries on the land; 4) the county's failure to comply with the public hearing requirement did not provide a basis for rescinding the lease; 5) the county is estopped from rescinding the lease based on its failure to comply with the South Dakota statute on leases; 6) the tort claims of trespass and conversion were properly rejected as defendant entered the land with the then-current lessee's permission and an action for conversion will not lie after a lease is signed; and 7) in the absence of an underlying tort, the county cannot state a claim for civil conspiracy.    

Read Harding County, SD v. Frithiof, No. 08-1540

Appellate Information
Appeal from the United States District Court for the District of South Dakota.
Submitted: February 12, 2009
Filed: August 6, 2009

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

US v. Booker, No. 08-3561

Conviction for drug crimes is affirmed where: 1) defendant waived his right to challenge the district court's actions with respect to a juror question concerning juror's experience with drug users; 2) defendant's  Batson challenge is rejected as the government provided race neutral reasons for its strikes; and 3) the evidence was sufficient to support defendant's conviction.    

Read US v. Booker, No. 08-3561

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Submitted: June 12, 2009
Filed: August 5, 2009

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

US v. Kreitinger, No. 08-3209

Sentence for credit card fraud, aggravated identity theft and other crimes is affirmed where: 1) the sentence imposed upon revocation of defendant's supervised release was not unreasonable; 2) the sentence imposed for subsequently-committed criminal offenses was not unreasonable; 3) the court did not err in making the revocation sentence and the new criminal conviction sentence consecutive in light of defendant's recidivist tendencies; and 4) there was no error in making completion of drug treatment a special condition of defendant's supervised release. 

Read US v. Kreitinger, No. 08-3209

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: May 14, 2009
Filed: August 5, 2009

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

US v. Smith, No. 08-3157

District court order revoking defendant's release and sentencing him to serve the remainder of his supervised-release term in prison is affirmed where the court did not err in finding defendant had violated the terms of his supervised release, as the evidence was sufficient to show he had violated the conditions of his release by having a minor in his residence.   

Read US v. Smith, No. 08-3157

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: June 9, 2009
Filed: August 5, 2009

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

US v. Harris, No. 08-3258

Sentence for drug crimes is affirmed where the district court did not err in finding it did not have authority to reconsider its decision that defendant's federal sentence should be consecutive to his state sentence.    

Read US v. Harris, No. 08-3258

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Submitted: May 11, 2009
Filed: August 4, 2009

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

The Weitz Company, LLC v. Lloyd's of London, No. 08-2835

In an action for action for breach of contract and bad-faith denial of an insurance claim, district court judgment is reversed and remanded where: 1) the court erred in holding that plaintiff's insurance claim was barred under the insurance policies' notice-of-loss provision, as plaintiff and defendant received notice of loss on the same day and thus plaintiff complied with the provision; and 2) the court erred in granting summary judgment for defendant on plaintiff's bad faith denial claim based on its analysis of the claim under Iowa law as the court failed to view the evidence in the light most favorable to plaintiff.    

Read The Weitz Company, LLC v. Lloyd's of London, No. 08-2835

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Submitted: March 12, 2009
Filed: August 4, 2009

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

Ramirez-Peyro v. Holder, No. 08-2657

Former ICE informant and drug cartel infiltrator's petition for review of an order denying deferred removal under the Convention Against Torture (CAT) is granted where: 1) the court adopts the Board of Immigration Appeals' interpretation of "acting in an official capacity" under 8 C.F.R. sec. 1208 as the equivalent of "under color of law;" 2) the Board too narrowly construed this standard and erred in applying the standard to the facts as the Board's conclusion that Mexican police would not be acting in official capacity was based on improper fact finding and an improper statement of the IJ's factual findings regarding the likelihood of plaintiff's arrest and whether he had immunity from prosecution in Mexico; and 3) in analyzing plaintiff's claim that he was entitled to relief under the CAT, the Board inappropriately limited its analysis to whether law-enforcement officials would acquiesce in their official capacities to the Juarez drug cartel's actions against plaintiff.    

Read Ramirez-Peyro v. Holder, No. 08-2657

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: March 10, 2009
Filed: August 4, 2009

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

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

Conviction and sentence for drug crimes and firearms possession is reversed where: 1) the evidence was sufficient to support defendant's conviction as the government proved a nexus between the weapons and defendant's drug trafficking offense; 2) a jury instruction defining the elements of the offense under 18 U.S.C. sec. 924(c)(1)(A) was erroneous and affected defendant's substantial rights as it allowed defendant to be convicted on a lower standard.    

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

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Submitted: July 24, 2009
Filed: August 4, 2009

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

Grand River Enterprises Six Nations, Ltd. v. Beebe, No. 08-1436

In a dispute involving the regulation of escrow releases and tobacco manufacturers, district court judgment is affirmed where: 1) although the Arkansas statutory framework concerning implementation of the Master Settlement Agreement may have some anticompetitive effect on non-participating manufacturers, plaintiffs failed to show that the Allocable Share Amendment at issue amounted to a per se violation of the Sherman Act; 2) plaintiff's claim that the Master Settlement Agreement created a hybrid restraint of trade in violation of the Sherman Act is rejected; 3) the state is immune from liability under the Parker v. Brown doctrine; and 4) the Master Settlement Agreement does not violate the Commerce Clause, and the Allocable Share Amendment does not create an equal protection or due process violation.    

Read Grand River Enterprises Six Nations, Ltd. v. Beebe, No. 08-1436

Appellate Information
Appeal from the United States District Court for the Western District of Arkansas.
Submitted: January 15, 2009
Filed: August 4, 2009

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

US v. Jenkins-Watts, No. 08-2287

Conviction and sentence for aggravated identity theft and related crimes is affirmed where: 1) the evidence was sufficient to support defendant Strothers' conviction for engaging in a loan fraud conspiracy; 2) the district court did not err in denying defendant a minor role reduction, in calculating the amount of loss attributable to him, and in imposing various sentencing enhancement; 3) the evidence was sufficient to support defendant Liwaru's conviction for conspiracy to defraud the United States; 4) the court erred in allowing the jury to see an exhibit which was not introduced at trial, but its admission did not affect the outcome of the case; 5) supplemental jury instructions given in response to a jury question were specific and neutral and were not error; 6) the court did not err in imposing various enhancements to defendant Liwaru's sentence; 7) defendant Jenkins-Watts' Speedy Trial Act rights were not violated, and the court did not err in denying her motion to sever her case; 8) the court did not err in denying her motion to supress evidence as statements she gave to bank personnel were not taken in violation of her Miranda rights; 9) the indictment was sufficient to charge Jenkins with aggravated identity theft, and the evidence was sufficient to support her conviction.    

Read US v. Jenkins-Watts, No. 08-2287

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: May 13, 2009
Filed: August 4, 2009

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

US v. El-Alamin, No. 07-3774

Conviction for drug crimes and firearms possession is affirmed where: 1) the district properly dismissed one of the charges in the indictment without prejudice following a technical violation of the Speedy Trial Act, and the post-indictment delay did not violate the Speedy Trial Act; 2) an affidavit supplied probable cause for issuance of a warrant to search defendant's residence and person, and the court did not err in denying defendant's request for a Franks hearing; 3) the court did not err in denying defendant's request to present a justification defense to felon in possession of a firearms charge, in allowing the  government to impeach defendant with prior convictions as defendant was the first to introduce the matters into evidence, and in deciding not to order disclosure of the contents of the officer's investigative file; 4) the evidence was sufficient to support defendant's conviction on drug charge; and 5) the court did not err in sentencing defendant as a career offender, and gave proper consideration to the 18 U.S.C. 3553(a) factors and did not impose an unreasonable sentence.   

Read US v. El-Alamin, No. 07-3774

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: October 14, 2008
Filed: August 4, 2009

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

US v. Murphy, No. 09-1164

Sentence for drug crimes is affirmed where the district court resentenced defendant under the amendments to the crack sentencing guidelines, and thus, lacked authority to reduce his sentence below his amended guidelines range, and defendant could not show the alleged error in sentencing affected his substantial rights.    

Read US v. Murphy, No. 09-1164

Appellate Information
Appeal from the United States District Court for the District of Minnesota.
Submitted: June 8, 2009
Filed: August 3, 2009

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

US v. Stigler, No. 09-1023

Conviction for firearms possession is affirmed where defendant's reaction and actions created reasonable suspicion to justify a Terry stop, and the protective pat-down was justified by the officer's reasonable suspicion that defendant might be armed and dangerous.    

Read US v. Stigler, No. 09-1023

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Submitted: June 9, 2009
Filed: August 3, 2009

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

US v. Metropolitan St. Louis Sewer Dist., No. 08-3399

In an enforcement action brought under the Clean Water Act, district court judgment is affirmed where the State of Missouri waived its sovereign immunity by choosing to proceed as a plaintiff in the Clean Water enforcement action, and thus the court did not err when it denied the state's motion to strike defendant's affirmative defenses and dismiss its counterclaims.   

Read US v. Metropolitan St. Louis Sewer Dist., No. 08-3399

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: August 3, 2009
Filed: August 3, 2009

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

US v. Hayes, No. 08-2245

Conviction and sentence for conspiracy to commit health care fraud and making a false statement relating to health care matters is affirmed in part, reversed in part and remanded where: 1) the district court did not err in denying defendant's motion to dismiss the superceding indictment de novo as the indictment was sufficient to state the offense; 2) the court did not err in denying defendant's Batson challenge to the government's peremptory strike of a juror as the government provided a race-neutral ground for the strike; 3) the court did not err in giving a deliberate ignorance instruction to the jury; 4) the evidence was sufficient to support defendant's conviction for health care fraud, but the court erred in denying defendant's motion for acquittal on the false statement charge as the evidence was insufficient to support the conviction; and 5) the court did not err in imposing a two-level sentencing enhancement for a supervisory role in the offense, but did err in imposing a sentencing enhancement for abuse of a position of trust. Another defendant's conviction and sentence are affirmed where: 1) the evidence was sufficient to support her conviction for health care fraud; 2) the court did not err in referring the jury back to the instructions when it submitted a question on the evidence to be considered; and 3) the court did not err in calculating the amount of loss for the purpose of determining her offense level.    

Read US v. Hayes, No. 08-2245

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: January 14, 2009
Filed: August 3, 2009

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