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

September 2009 Archives

US v. Richardson, No. 08-1246

Defendant's firearm possession sentence is affirmed where the district court properly enhanced defendant's sentence due to his commission of a prior violent felony under U.S.S.G. section 4B1.2(a), as defendant was convicted of a Kansas law felony for "fleeing or attempting to elude a police officer" because he was involved in a high speed chase that resulted in a motor vehicle accident involving other vehicles.

Read US v. Richardson, No. 08-1246

Appellate Information

Submitted: July 8, 2009

Filed: September 23, 2009

Judges

Per Curiam

US v. Stymiest, No. 08-3320

Defendant's conviction for assault resulting in serious bodily injury in Indian country is affirmed where: 1) the district court properly submitted the issue of defendant's Indian status to the jury as an element of 18 U.S.C. section 1153(a); 2) the district court's instructions on defendant's Indian status were not an abuse of discretion; 3) sufficient evidence supported the jury's finding that defendant was an Indian for purposes of the section 1153(a) offense; 4) the instructions as a whole did not constructively amend the indictment by permitting the jury to convict defendant of an uncharged offense; and 5) the district court properly enhanced defendant's sentence as a career offender.

Read US v. Stymiest, No. 08-3320

Appellate Information

Submitted: June 11, 2009

Filed: September 22, 2009

Judges

Opinion by Judge Loken

Gitimu v. Holder, No. 08-3304

In a petition for review of the BIA's order denying petitioners asylum, withholding of removal, and relief under the Convention Against Torture, the petition is denied where: 1) State Department country reports can support a factual finding of changed conditions to rebut a presumption of a well-founded fear of future persecution; and 2) the record evidence did not compel a reversal of the IJ's decision to deny asylum.

Read Gitimu v. Holder, No. 08-3304

Appellate Information

Submitted: June 9, 2009

Filed: September 22, 2009

Judges

Opinion by Judge Hansen

US v. Rodriguez, No. 07-1316

Defendant's capital conviction for kidnapping a victim and transporting her across state lines, resulting in death, is affirmed where: 1) a district court need not consider public opinion polls when ruling on change-of-venue motions; 2) the district court was not clearly erroneous in finding that certain jurors' statements, in context, did not establish actual prejudice; 3) the district court did not clearly err by accepting the government's race-neutral reasons for striking certain jurors; 4) the district court did not err in refusing to exclude a pathologist's testimony under Daubert because many pathologists shared the government pathologist's view of the reliability of the test performed; 5) the victim-impact testimony given in the penalty phase was neither quantitatively nor qualitatively overwhelming; and 6) the prosecution's closing argument did not improperly imply that defendant was required to prove a nexus between his mitigation evidence and his offense.

Read US v. Rodriguez, No. 07-1316

Appellate Information

Submitted: February 12, 2009

Filed: September 22, 2009

Judges

Opinion by Judge Benton

US v. Gray, No. 08-3598

Defendant's firearm possession conviction is reversed where the district court failed to inform defendant, prior to accepting his guilty plea, of the maximum sentence he could face if found to be an armed career criminal under 18 U.S.C. section 924(e), or of the court's obligation to calculate the applicable Sentencing Guidelines range and to consider such range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. section 3553(a).

Read US v. Gray, No. 08-3598

Appellate Information

Submitted: June 12, 2009

Filed: September 21, 2009

Judges

Per Curiam

US v. Collier, No. 08-3306

Defendant's drug distribution sentence is vacated where defendant's sentence was not eligible for reduction under 18 U.S.C. section 3582(c)(2) because Amendment 706 to the Sentencing Guidelines did not apply to persons such as defendant who qualified as career offenders.

Read US v. Collier, No. 08-3306

Appellate Information

Submitted: April 15, 2009

Filed: September 21, 2009

Judges

Opinion by Judge Shepherd

US v. Espinosa, No. 08-3354

Defendant's aggravated sexual abuse conviction is affirmed as to one count where: 1) the evidence was sufficient to establish the penetration element; and 2) the jury could have disregarded a prosecution expert's testimony and nonetheless found that the victim had been abused. However, defendant's conviction on another count is reversed where insufficient evidence existed as to the victim's age at the time of the offense conduct.

Read US v. Espinosa, No. 08-3354

Appellate Information

Submitted: June 11, 2009

Filed: September 18, 2009

Judges

Opinion by Judge Smith

Rakes v. Life Investors Ins. Co., No. 08-2626

In an action claiming that defendant-insurer used inflated lapse rates to purposefully underprice its LTC insurance products and gain market share, summary judgment for defendant is affirmed where: 1) plaintiffs failed to show that their LTC insurance policies contained a fraudulent representation; 2) plaintiffs' claim for bad faith denial of benefits failed because plaintiffs were not alleging a denial of benefits; and 3) the additional discovery sought by plaintiffs was not relevant to the district court's decision.

Read Rakes v. Life Investors Ins. Co., No. 08-2626

Appellate Information

Submitted: March 12, 2009

Filed: September 18, 2009

Judges

Opinion by Judge Wollman

US v. Byas, No. 08-3281

Defendant's firearm possession sentence is affirmed where the district court's inference of a sufficient nexus between defendant and the firearm at issue was not clearly erroneous, because a factfinder could draw the reasonable inference that defendant and his companions knew the loaded rifle at issue was in the trunk of defendant's car.

Read US v. Byas, No. 08-3281

Appellate Information

Submitted: April 14, 2009

Filed: September 16, 2009

Judges

Opinion by Judge Rosenbaum

Knudsen v. IRS, No. 08-2820

In the IRS's appeal from a bankruptcy court's order confirming debtors' Chapter 12 reorganization plan, the order is affirmed where: 1) a Chapter 12 debtor may treat postpetition income taxes imposed on the debtor's income earned during the pendency of the case as administrative expenses under 11 U.S.C. section 503; 2) debtors' sale of their slaughter hogs in 2004 constituted the sale of a "farm asset used in the debtor's farming operation" under section 1222(a)(2)(A); and 3) the "marginal method" was the correct method to determine the allocation of taxes between priority and non-priority claims under section 1222(a)(2)(A).

Read Knudsen v. IRS, No. 08-2820

Appellate Information

Submitted: May 13, 2009

Filed: September 16, 2009

Judges

Opinion by Judge Smith

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

In a product liability action based on defective truck engines, the district court's order compelling arbitration is reversed where defendant was a nonparty to the arbitration agreement and Mississippi law did not permit defendant to enforce the agreement on a theory of equitable estoppel.

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

Appellate Information

Submitted: August 26, 2009

Filed: September 16, 2009

Judges

Opinion by Judge Benton

Glorvigen v. Cirrus Design Corp., No. 08-2680

In a tort action arising from an airplane crash, summary judgment for defendant is affirmed where defendant federally employed flight service station (FSS) did not negligently provide weather information to plaintiff's decedent because the fact that a specialist must provide "accurate and complete" weather information does not mean that a specialist must provide a pilot with every detail from every relevant weather source.

Read Glorvigen v. Cirrus Design Corp., No. 08-2680

Appellate Information

Submitted: May 14, 2009

Filed: September 16, 2009

Judges

Opinion by Judge Ebel

US v. Smith, No. 08-3816

Defendant's drug distribution conviction and sentence are affirmed where: 1) police established probable cause to issue a warrant to search defendant's residence for evidence of drug trafficking; and 2) defendant's sentence enhancement did not violate the Double Jeopardy Clause because increased punishment imposed by a recidivism statute is a stiffened penalty for the latest crime, not an increased punishment for the earlier crime.

Read US v. Smith, No. 08-3816

Appellate Information

Submitted: June 9, 2009

Filed: September 15, 2009

Judges

Opinion by Judge Loken

Baker v. Silver Oak Senior Living Mgmt. Co., No. 08-1036

In an age discrimination action based on an alleged wrongful termination, summary judgment for defendant is reversed where there was evidence that people who participated in the decision to terminate plaintiff evinced a preference for the employment of younger workers over persons in the class protected by the Age Discrimination in Employment Act.

Read Baker v. Silver Oak Senior Living Mgmt. Co., No. 08-1036

Appellate Information

Submitted: October 15, 2008

Filed: September 14, 2009

Judges

Opinion by Judge Colloton

Williams v. Nat'l. Football League, No. 09-2247

In an action for breach of a collective bargaining agreement between the NFL and the NFL players' union based on drug testing issues, the district court's order concluding that the Minnesota statutory claims alleged by football players against the NFL were not preempted by section 301 of the Labor Management Relations Act is affirmed, where: 1) the district court had no need to consult the collective bargaining agreement (CBA) in order to resolve the players' Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) claim; 2) the NFL's defenses to liability under the Minnesota Consumable Products Act (CPA) were not relevant to the Section 301 analysis; and 3) the NFL did not demonstrate that, by agreeing to be bound by the CBA, the players waived their rights under the CPA.

Read Williams v. Nat'l. Football League, No. 09-2247

Appellate Information

Submitted: August 18, 2009

Filed: September 11, 2009

Judges

Opinion by Judge Shepherd

Turner v. United Steelworkers of Am., No. 08-3116

In an action seeking to confirm a portion of an arbitrator's back pay award allegedly imposed against a union, summary judgment for plaintiff is reversed where, in labeling the union "responsible for the back pay from January 21, 2005 through and including September 9, 2005," the arbitrator did not intend to award back pay against the union for that period.

Read Turner v. United Steelworkers of Am., No. 08-3116

Appellate Information

Submitted: April 14, 2009

Filed: September 11, 2009

Judges

Opinion by Judge Loken

US v. Moore, No. 08-2812

Defendant's identity theft sentence is affirmed where: 1) the district court could only consider the value of defendant's substantial assistance in reducing his mandatory two-year sentence for aggravated identity theft based on the government's 18 U.S.C. section 3553(e) motion; and 2) defendant did not file a motion for a departure nor request a departure orally at the sentencing hearing.

Read US v. Moore, No. 08-2812

Appellate Information

Submitted: May 15, 2009

Filed: September 11, 2009

Judges

Per Curiam

US v. Peterson, No. 08-2715

In the government's appeal from the district court's order granting defendant a 50% reduction in her drug and firearm possession sentence for substantial assistance, the order is affirmed where the district court did not significantly consider any improper factors nor make any clearly erroneous factual findings.

Read US v. Peterson, No. 08-2715

Appellate Information

Submitted: March 12, 2009

Filed: September 11, 2009

Judges

Opinion by Judge Riley

Toledo v. US, No. 08-2527

In a firearm possession prosecution, denial of defendant's motion pursuant to 28 U.S.C. section 2255 to vacate her sentence based on ineffective assistance of counsel is affirmed where, under the state of the law at the time of sentencing, defendant's counsel simply withdrew objections that had no legal support.

Read Toledo v. US, No. 08-2527

Appellate Information

Submitted: May 14, 2009

Filed: September 11, 2009

Judges

Opinion by Judge Gibson

Thomas v. Jackson, No. 08-2152

In an action under the Administrative Procedure Act arguing that approval by the EPA of the State of Iowa's 2004 section 303(d) lists violated several aspects of the Clean Water Act, dismissal of plaintiffs' complaint is affirmed where: 1) the record did not support plaintiff's claim that the EPA's partial approval of Iowa's section 303(d) list was arbitrary and capricious; 2) section 303(d) allows the EPA to include all impaired waters on a state's section 303(d) list, but it does not require the EPA to include impaired waters where the EPA has determined the impairment is due to something other than a pollutant; 3) the EPA did not err in dealing with various aspects of Iowa's listing methodology. 

Read Thomas v. Jackson, No. 08-2152

Appellate Information

Submitted: February 11, 2009

Filed: September 10, 2009

Judges

Opinion by Melloy, Circuit Judge

Van Wyhe v. Reisch, No. 08-1409

In a prisoners' action against South Dakota prison officials claiming violations of their free exercise of religion under the First Amendment and Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), denial of summary judgment for defendants is affirmed in part, reversed in part and dismissed in part where: 1) denial of summary judgment on the plaintiffs' official capacity RLUIPA claims for monetary was improper as RLUIPA is constitutional and prison officials are entitled to the protection of sovereign immunity from monetary damages; 2) denial of summary judgment on plaitniff's injunctive relief claims for a tape player and extra group study time under RLUIPA and the First Amendment Free Exercise Clause was error; and 3) the court of appeals lacked jurisdiction to consider plaintiff's claim for a succah and his retaliation claims due to the existence of genuine disputes of material fact. 

Read Van Wyhe v. Reisch, No. 08-1409

Appellate Information

Submitted: November 13, 2009

Filed: September 10, 2009

Judges

Opinion by Hansen, Circuit Judge

In re: Callicott, No. 09-1030

In a Chapter 13 bankruptcy case, district court's ruling in favor of debtor is reversed and remanded where it erred in finding that the creditor did not have a purchase-money security interest in its entire claim, including the negative equity financing resulting from debtor's trade-in vehicle. 

Read In re: Callicott, No. 09-1030

Appellate Information

Submitted: June 11, 2009

Filed: September 9, 2009

Judges

Opinion by Benton, Circuit Judge

US v. Christensen, No. 08-3103

District court's sentence of a defendant convicted of manufacturing and distributing illegal drugs is affirmed where: 1) district court properly limited its section 3553(e) departure analysis to a consideration of defendant's substantial assistance and declined to consider the section 3553(a) factors, as section 3553(e) departure below a statutory minimum sentence must be based exclusively on assistance-related considerations; 2) district court did not err in refusing to grant a greater departure based on 3553(a) factors as it lacked the authority to do so; 3) district court did not abuse its discretion or err in selecting a starting point for the departure of 60%; and 4) the sentence was not unreasonable.     

Read US v. Christensen, No. 08-3103

Appellate Information

Submitted: February 10, 2009

Filed: September 9, 2009

Judges

Opinion by Loken, Circuit Judge

Fed. Trade Comm'n v. Neiswonger, No. 08-3077

District court's entry of a civil contempt order against defendant for violations of a prior permanent injunction enjoining him from using deceptive and misleading sales practices is affirmed where: 1) district court did not abuse its discretion in denying defendant's motion for a hearing on the issue of damages and disgorgement as he was afforded due process during the civil contempt proceedings and was given notice and ample opportunity to be heard on the issues of damages and disgorgement, as well as on the issue of FTC's calculation of his profits from the scheme; 2) district court did not abuse its discretion or err in adopting the receiver's calculation of defendant's proceeds; 3) defendant's challenge to the district court's order compelling him to turn over property in Nevada is rejected; and 4) there was no error in ordering defendant to turn over assets in his IRA.     

Read Fed. Trade Comm'n v. Neiswonger, No. 08-3077

Appellate Information

Submitted: April 16, 2009

Filed: September 9, 2009

Judges

Opinion by Riley, Circuit Judge

Horizon Asset Mgmt. Inc. v. H&R Block Inc., No. 08-1593

In a putative consolidated class action against H&R Block, Inc. (Block), and individual corporate officers and directors of Block involving allegations of securities fraud claims under section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, dismissal of the action is affirmed in part and reversed in part where: 1) district court did not err in dismissing plaintiff's claims against the individual defendants with respect to the false statements as plaintiff has not raised a strong inference that the defendants made any of the statements with the requisite scienter; 2) district court did not err in dismissing the consolidated complaint as plaintiff failed to plead scienter adequately with respect to Block or the individual defendants; 3) because the control-person claims under section 20(a) of the Securities Exchange Act of 1934 are predicated on some underlying primary violation, plaintiff also failed to state a claim under section 20(a); and 4) while district court's consolidation of the nine securities and derivative actions against Block under Federal Rules of Civil Procedure 42(a) was not an abuse of discretion, it was error to appoint plaintiff as the sole lead plaintiff to prosecute a single consolidated complaint, and thus, district court's order designating plaintiff as the lead plaintiff for the derivative claims brought by other parties is reversed and the separate complaints filed by those plaintiffs are reinstated on remand.     

Read Horizon Asset Mgmt. Inc. v. H&R Block Inc., No. 08-1593

Appellate Information

Submitted: October 16, 2008

Filed: September 9, 2009

Judges

Opinion by Colloton, Circuit Judge

Ford Motor Credit Co. Mierkowski, No. 08-3866

Bankruptcy court's grant of debtors' motion to bifurcate creditor-Ford Motor Credit Company's claims is reversed and remanded as, under Missouri law, the amount financed to pay off the negative equity in the trade-in is part of the price of the new car, thus it is a purchase-money obligation and creditor has a purchase-money security interest securing its entire claim.  

Read Ford Motor Credit Co. Mierkowski, No. 08-3866

Appellate Information

Submitted: Junw 11, 2009

Filed: September 8, 2009

Judges

Opinion by Benton, Circuit Judge

US v. Ybarra, No. 08-3137

Defendant's conviction for a conspiracy to distribute drugs is affirmed where the district court's supplemental charge to the jury, based on Allen v. United States, 164 U.S. 492, 501 (1896), was not coercive.     

Read US v. Ybarra, No. 08-3137

Appellate Information

Submitted: June 9, 2009

Filed: September 8, 2009

Judges

Opinion by Colloton, Circuit Judge

Sutherland v. Missouri Dep't of Corr., No. 08-3000

In plaintiff's employment discrimination lawsuit under Title VII, summary judgment for the Missouri Department of Corrections is affirmed where: 1) the district court correctly granted summary judgment on a hostile work environment claim as the offensive conduct did not constitute actionable harassment under Title VII; and 2) district court correctly granted the summary judgment on the retaliation claim as plaintiff failed to prove that a reasonable person would perceive as retaliatory the actions she found offensive, and actions by her co-workers are not sufficient to support a conclusion that they were materially adverse retaliatory actions.      

Read Sutherland v. Missouri Dep't of Corr., No. 08-3000

Appellate Information

Submitted: March 10, 2009

Filed: September 8, 2009

Judges

Opinion by Benton, Circuit Judge

US v. Tyler, No. 08-3574

District court's sentencing based on defendant's prior conviction is vacated and remanded where Minnesota's crime of fleeing a peace officer in a motor vehicle does not constitute a crime of violence under the Sentencing Guidelines and the district court erred in sentencing defendant as a career offender and thus improperly calculated his offense level and Guidelines range, which constitutes a significant procedural error. 

Read US v. Tyler, No. 08-3574

Appellate Information

Submitted: June 10, 2009

Filed: September 4, 2009

Judges

Opinion by Shepherd, Circuit Judge

US v. Stevens, No. 08-3367

Sentence of a defendant convicted of armed bank robbery is affirmed where the district court did not err in applying a two-level specific characteristic enhancement for the physical restraint of a number of bank employees under Guidelines section 2B3.1(b)(4)(B). 

Read US v. Stevens, No. 08-3367

Appellate Information

Submitted: June 8, 2009

Filed: September 4, 2009

Judges

Opinion by Hansen, Circuit Judge

Kebede v. Hilton, No. 08-3326

In a civil case alleging alienation of affection, district court did not abuse its discretion in excluding evidence that the defendant had affairs with other men, where there was no evidence she had alienated the other men's affections or was aware that their affections had been alienated, as this is an intentional tort and such evidence would only have shown defendant's propensity for affairs in violation of Rule 404(a). 

Read Kebede v. Hilton, No. 08-3326

Appellate Information

Submitted: June 10, 2009

Filed: September 4, 2009

Judges

Opinion by Smith, Circuit Judge

US v. Racing Servs., Inc., No. 08-3287

District court's denial of defendants' petition for certificate of innocence arising from a reversal of their federal gambling and money laundering convictions is affirmed, as the defendants were not truly innocent of state criminal gambling law violations. 

Read US v. Racing Servs., Inc., No. 08-3287

Appellate Information

Submitted: June 11, 2009

Filed: September 4, 2009

Judges

Opinion by Loken, Circuit Judge

US v. Waldner, No. 08-2606

District court's restitution order and sentence of a defendant convicted of making a false statement in relation to a bankruptcy proceeding is affirmed where: 1) the district court did not err in applying a 16-level enhancement for intending to cause a loss of more than $1 million; 2) district court did not err in applying the two-level enhancement for using sophisticated means and the record clearly supports the enhancement for obstruction of justice under U.S.S.G. section 3C1.1; 3) district court did not err in denying request for reduction for acceptance of responsibility; 4) district court committed significant procedural error in using certain upward departures to calculate the new advisory guidelines range, but the error did not require reversal, as the sentence was within properly calculated Guidelines range and was substantively reasonable; and 5) restitution order in the amount of $1,722,717.61 is affirmed. 

Read US v. Waldner, No. 08-2606

Appellate Information

Submitted: December 9, 2008

Filed: September 4, 2009

Judges

Opinion by Shepherd, Circuit Judge

US v. Clay, No. 08-1372

Defendants' sentences and convictions on various drug and firearm offenses are affirmed where: 1) district court did not improperly enhance defendant Stovall's sentence, as the plea agreement did not exclude consideration of the murder for enhancement and the government did not violate the plea agreement; 2) district court did not abuse its discretion by granting the government's motion to sever, as Stovall has not demonstrated how he was prejudiced by the court's grant of the motion, and even if it was an abuse of discretion, it was harmless error; 3) Stovall has not shown that the district court committed reversible error in applying Rule 32, and thus his claim of inadequate notice of evidence from defendant Clay's case is unavailing and did not amount to denial of the right to counsel; 4) district court did not abuse its discretion in imposing the sentence, as the application of section 2D1.1(d) did not violate Stovall's due process rights and the sentence was reasonable and within the properly calculated Guidelines range; 5) the evidence was sufficient for a reasonable jury to have found that a conspiracy existed in determining that Clay was aware of and part of the conspiracy; 6) district did not commit clear error in denying Clay's motion to suppress, as the seizure of the items during the warrant search was in plain view and their incriminating nature was immediately apparent; 7) the district court erred in sentencing Clay pursuant to 18 U.S.C. section 924(c) instead of section 924(o), but reversal is unwarranted as his sentence is supported by evidence on other count; and 8) defendant Clay's sentence of 480 months on conspiracy to distribute marijuana was reasonable. 

Read US v. Clay, No. 08-1372

Appellate Information

Submitted: February 12, 2009

Filed: September 4, 2009

Judges

Opinion by Smith, Circuit Judge

Rush v. Perryman, No. 08-3148

In former college president's action against the college's Board of Trustees alleging violation of his state and federal statutory and constitutional rights, denial of defendant's motion for qualified immunity is affirmed where plaintiff's employment was terminated in an open session of the Board for alleged misconduct including dishonesty - an accepted stigmatizing charge - and thus, plaintiff sufficiently demonstrated a violation of his clearly established due process right to a post-termination name-clearing hearing. 

Read Rush v. Perryman, No. 08-3148

Appellate Information

Submitted: March 12, 2009

Filed: September 3, 2009

Judges

Opinion by Smith, Circuit Judge

Humphries v. Pulaski County Special Sch. Dist., No. 08-2485

In an employment discrimination action against a school district alleging that the district breached its employment contract with the plaintiff and that it unlawfully used race in its hiring practices, summary judgment for district is affirmed in part and reversed in part where: 1) evidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination; 2) plaintiff presented sufficient direct evidence of unlawful race discrimination by showing that there are genuine issues of material fact regarding the district's affirmative action policies and its actions; 3) summary judgment on another failure to promote claim was proper as she failed to exhaust her administrative remedies; and 4) plaintiff's state law claims are reinstated for reconsideration.   

Read Humphries v. Pulaski County Special Sch. Dist., No. 08-2485

Appellate Information

Submitted: April 16, 2009

Filed: September 3, 2009

Judges

Opinion by Gruender, Circuit Judge

O'Neal v. Kenny, No. 06-3893

On remand from the Supreme Court for reconsideration in light of Jimenez v. Quarterman, 129 S. Ct. 681 (2009), where the Court held that a state court's grant of a right to file an out-of-time direct appeal resets the date when the conviction becomes "final" under Antiterrorism and Effective Death Penalty Act, district court's denial of habeas relief is affirmed where the case at hand is factually distinguishable from Jimenez and thus not controlled by its holding and here, petitioner sought federal habeas relief before the state trial court granted him a new direct appeal.     

Read O'Neal v. Kenny, No. 06-3893

Appellate Information

Submitted: February 27, 2009

Filed: September 3, 2009

Judges

Opinion by Smith, Circuit Judge

Doyle v. Graske, No. 08-3144

In a personal injury action arising from a boat accident, district court's judgment is affirmed in part and reversed in part where: 1) substantial evidence supported district court's conclusion that defendant breached a duty of reasonable care to plaintiff by bringing the boat to planing speed when plaintiff was seated on the bow cushion; 2) district court did not clearly err in finding that defendant's negligent operation of the boat was a proximate and substantial cause of plaintiff's injuries; and 3) district court erred in awarding plaintiff's spouse damages for loss of consortium as there is no well-settled admiralty rule authorizing such damages for spouses of non-seafarers negligently injured beyond the territorial waters of the United States.   

Read Doyle v. Graske, No. 08-3144

Appellate Information

Submitted: April 16, 2009

Filed: September 2, 2009

Judges

Opinion by Colloton, Circuit Judge

US v. Keating, No. 09-1126

Defendant's sentence for manufacturing counterfeit currency is affirmed as the court adequately discussed defendant's need for long-term drug treatment along with section 3553(a) factors and the sentence was not unreasonable. 

Read US v. Keating, No. 09-1126

Appellate Information

Submitted: June 8, 2009

Filed: September 1, 2009

Judges

Opinion by Smith, Circuit Judge

Tilley v. Astrue, No. 08-3537

District court's judgment affirming the denial of claimant's application for disability insurance benefits is reversed and remanded where an ALJ's conclusion that claimant could have performed her past relevant work was not supported by substantial evidence as claimant's treating physician's opinion that claimant could not perform light work was improperly discredited. 

Read Tilley v. Astrue, No. 08-3537

Appellate Information

Submitted: April 15, 2009

Filed: September 1, 2009

Judges

Opinion by Wollman, Circuit Judge

US v. Dooley, No. 08-3523

A conviction for being a felon in possession of a firearm is reversed where: 1) the district court did not err in denying defendant's motion to dismiss the indictment under the Interstate Agreement on Detainers Act (IADA) as defendant failed to indicate whether he was invoking his rights under the IADA; but 2) ambiguity in a jury instruction that defendant was in constructive possession of the firearm was not harmless error and required reversal and a new trial.     

Read US v. Dooley, No. 08-3523

Appellate Information

Submitted: April 14, 2009

Filed: September 1, 2009

Judges

Opinion by Wollman, Circuit Judge

US v. Zuniga, No. 08-3156

District court's denial of defendant's motion to suppress and motion to dismiss his indictment charging him with failure to register as a sex offender after traveling interstate commerce is affirmed where: 1) defendant's constitutional challenge to the federal Sex Offender Registration and Notification Act (SORNA) is rejected; 2) defendant lacks standing to raise a Tenth Amendment challenge to SORNA because he is a private party; 3) SORNA applies to defendant who traveled interstate after enactment of the Act but before the Attorney General issued the interim rule on the application of the Act.

Read US v. Zuniga, No. 08-3156

Appellate Information

Submitted: May 11, 2009

Filed: September 1, 2009

Judges

Per Curiam Opinion

US v. Bonilla-Filomeno, No. 08-3088

District court's conviction of defendant for knowingly and intentionally possessing with intent to distribute drugs and 120-month sentence is affirmed where: 1) there was no Speedy Trial Act violation as the district court did not err in construing the government's motion to set a trial date as a motion to continue; and 2) district court did not clearly err in determining that the defendant was ineligible for safety-valve relief and in applying the enhanced sentence, as it found the defendant to be a leader or organizer of the crime. 

Read US v. Bonilla-Filomeno, No. 08-3088

Appellate Information

Submitted: January 13, 2009

Filed: September 1, 2009

Judges

Opinion by Shepherd, Circuit Judge

Anderson v. Family Dollar Stores of Arkansas, No. 08-3061

In an employment and sex discrimination action, summary judgment for plaintiff's former employer is affirmed where: 1) plaintiff failed to make a prima facie case of sex discrimination as the conduct plaintiff relied on to support her claim was not sufficiently severe or pervasive to affect a term, condition, or privilege of her employment: and 2) there was no evidence to support plaintiff's claim that she suffered adverse employment action as a result of her refusal to submit to a supervisor's implied or inferred demand for sexual favors.      

Read Anderson v. Family Dollar Stores of Arkansas, No. 08-3061

Appellate Information

Submitted: April 16, 2009

Filed: September 1, 2009

Judges

Opinion by Hansen, Circuit Judge

US v. Salas-Barraza, No. 08-2721

District court's sentence of a defendant convicted of conspiracy to distribute drugs to five years' probation with six months' home confinement is vacated and remanded as the district court did not base its sentence solely on assistance-related considerations under 18 U.S.C. section 3553(e). 

Read US v. Salas-Barraza, No. 08-2721

Appellate Information

Submitted: March 13, 2009

Filed: September 1, 2009

Judges

Opinion by Smith, Circuit Judge

Hernandez v. Holder, No. 08-2455

Petition for review of a decision of the Board of Immigration Appeals affirming a denial of a Guatemalan petitioner's application for asylum and related relief is granted in part and denied in part where: 1) substitution of the IJ who conducted the earlier proceedings because he was unavailable under the regulations covering assignment did not violate section 240.1(b), and petitioner's due process rights were not violated as he does not have due process right to a particular judge; 2) petitioner's speculative argument did not warrant a grant of asylum nunc pro tunc: 3) review is granted as to petitioner's other serious harm humanitarian asylum claim under 8 C.F.R. 1208.13(b)(1)(iii)(B) because the BIA improperly characterized the claim, and its explanation was so vague that the court cannot be sure as to the reason for the denial: and 4) the court lacks jurisdiction to review discretionary denial of motion for continuance and denial of motion for administrative closure.     

Read Hernandez v. Holder, No. 08-2455

Appellate Information

Submitted: March 10, 2009

Filed: September 1, 2009

Judges

Opinion by Shepherd, Circuit Judge

In re: 2007 Novastar Fin. Inc., Sec. Litig., No. 08-2452

District court's order dismissing plaintiff's class-action securities complaint under the heightened pleading requirements of the Private Securities Litigation Act of 1995 and concluding that any attempt to amend the complaint would be futile is affirmed on the alternate basis that plaintiff failed to offer a proposed amended complaint to the district court.     

Read In re: 2007 Novastar Fin. Inc., Sec. Litig., No. 08-2452

Appellate Information

Submitted: January 16, 2009

Filed: September 1, 2009

Judges

Opinion by Gruender, Circuit Judge

Craftsman Limousine v. Ford Motor Co., No. 08-2214

In an antitrust action against Ford Motor Co. (Ford), district court's order granting Ford's Bill of Costs is affirmed where: 1) district court did not abuse its discretion by awarding costs without specifically addressing each item as there is no requirement under FRCP 54 that a district court provide a detailed review or analysis of every item of cost it awards; rather, a prevailing party is presumptively entitled to recover all of its costs and plaintiff failed to offer any specific basis to rebut the presumption in favor of awarding the costs to Ford or that the award was unreasonable or unnecessary; 2) district court did not abuse its discretion by awarding costs of video depositions; and 3) district court did not abuse its discretion by awarding the recovery of pro hac vice fees of the clerk under 28 U.S.C. section 1920. 

Read Craftsman Limousine v. Ford Motor Co., No. 08-2214

Appellate Information

Submitted: June 8, 2009

Filed: September 1, 2009

Judges

Opinion by Melloy, Circuit Judge