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

December 2009 Archives

US v. Adler, No. 09-1775

In a marijuana possession prosecution, grant of defendant's motion to suppress is reversed where Neb. Rev. Stat. section 60-6.161(2) required defendant to have signaled her turn 100 feet in advance, and thus an officer had probable cause to stop her vehicle for the traffic violation he observed.

Read US v. Adler, No. 09-1775

Appellate Information

Submitted: October 21, 2009

Filed: December 31, 2009

Judges

Opinion by Judge Gruender

US v. Smith, No. 08-3903

Defendant's sentence for conspiracy to engage in the unlicensed dealing of firearms is affirmed where: 1) because defendant did not object at the time of sentencing that the prosecutor's remarks were in breach of the plea agreement, such a claim was not preserved for appeal; and 2) the terms of the plea agreement did not preclude the government from making a good faith argument that defendant did not satisfy one or more of the conditions entitling him to a downward departure recommendation.

Read US v. Smith, No. 08-3903

Appellate Information

Submitted: October 23, 2009

Filed: December 30, 2009

Judges

Opinion by Judge Piersol

US v. Branch, No. 08-3683

Defendant's mail and wire fraud convictions and sentence are affirmed where: 1) a witness's outburst at defendant did not prejudice him given the strength of the evidence against him; 2) the prosecutor's characterizations of defendant did not produce a miscarriage of justice; and 3) defendant showed no meaningful errors in the government's evidence on loss amount.

Read US v. Branch, No. 08-3683

Appellate Information

Submitted: September 25, 2009

Filed: December 30, 2009

Judges

Opinion by Judge Smith

US v. Williams, No. 08-3606

In defendant's appeal from the district court's order granting the government's motion for a 12-month sentence reduction, the appeal is dismissed for lack of jurisdiction where, absent an unconstitutional motive, the extent to which a district court exercises its discretionary authority to depart downward was not subject to review.

Read US v. Williams, No. 08-3606

Appellate Information

Submitted: September 25, 2009

Filed: December 30, 2009

Judges

Opinion by Judge Smith

US v. McCloud, No. 09-1520

Defendant's child pornography conviction is affirmed where: 1) defendant's own testimony supplied the allegedly "missing" element of whether he actually photographed one victim; 2) the district court's preclusion of a reasonable-mistake-of-age defense did not violate defendant's right to due process; and 3) sufficient evidence existed from which a jury could find that defendant produced child pornography with materials that had traveled in interstate commerce.

Read US v. McCloud, No. 09-1520

Appellate Information

Submitted: September 24, 2009

Filed: December 29, 2009

Judges

Opinion by Judge Smith

Qwest Corp. v. Boyle, No. 08-3838

In a Telecommunications Act challenge to an order issued by the Nebraska Public Service Commission setting the rates that competitors must pay to lease elements of plaintiff's local telephone network in Nebraska, judgment for defendant is affirmed in part where: 1) plaintiff did not show that the Commission's deaveraging method violated the general requirements set out in 47 C.F.R. section 51.507(f); and 2) plaintiff's claim that the Commission's order would discourage all competition in out-of-town areas lacked merit.  However, the matter is remanded where the Commission invited the court to remand for further proceedings concerning how plaintiff would implement its order.

Read Qwest Corp. v. Boyle, No. 08-3838

Appellate Information

Submitted: October 20, 2009

Filed: December 29, 2009

Judges

Opinion by Judge Gruender

Little Rock Cardiology Clinic PA v. Baptist Health, No. 08-3158

In an antitrust action alleging a conspiracy to monopolize the market for cardiology services for privately insured patients, dismissal of the complaint is affirmed where the complaint erroneously defined the product market by how consumers paid for cardiology services. In addition, a grant of plaintiff's motion to tax costs is affirmed where the district court did not err in declining to tax discovery related copying expenses.

Read Little Rock Cardiology Clinic PA v. Baptist Health, No. 08-3158

Appellate Information

Submitted: September 21, 2009

Filed: December 29, 2009

Judges

Opinion by Judge Melloy

Allen v. US, No. 09-1350

In a medical malpractice action against the U.S. based on plaintiff's contraction of hepatitis at an Air Force hospital, summary judgment for defendant is affirmed where: 1) plaintiff's administrative charge did not make out a lack of informed consent claim, and as a result she failed to exhaust her administrative remedies as to that claim; and 2) the district court did not abuse its discretion by not sua sponte granting plaintiff a continuance to retain new counsel or an expert witness when she never made such a request.

Read Allen v. US, No. 09-1350

Appellate Information

Submitted: November 19, 2009

Filed: December 28, 2009

Judges

Opinion by Judge Murphy

Service Oil, Inc. v. EPA, No. 08-2819

In a petition for review of civil penalties imposed on petitioner by the EPA for violations of the Clean Water Act, the petition is granted where the EPA's authority to assess monetary penalties by administrative proceeding was limited to unlawful discharges of pollutants, not the failure to timely apply for a permit.

Read Service Oil, Inc. v. EPA, No. 08-2819

Appellate Information

Submitted: May 13, 2009

Filed: December 28, 2009

Judges

Opinion by Judge Loken

US v. Howe, No. 08-1021

In a kidnapping prosecution, the denial of defendant's motion to dismiss the indictment is affirmed where 1) the jury in a prior felony murder trial did not need to find that defendant did not kidnap the victim in order to acquit defendant; 2) defendant's acquittal on the charge of carrying a firearm in furtherance of a crime of violence did not require the jury to determine that defendant did not commit kidnapping; and 3) in acquitting defendant's co-defendant on all counts, the jury did not necessarily find that defendant did not commit kidnapping.

Read US v. Howe, No. 08-1021

Appellate Information

Submitted: September 16, 2009

Filed: December 28, 2009

Judges

Opinion by Judge Beam

Gouleed v. Wengler, No. 09-1256

In a prosecution charging petitioner with the unintentional felony murder of his infant daughter, the denial of petitioner's habeas petition is affirmed where: 1) the trial judge clearly articulated the fundamental problem created by a witness's discovery violation, explored potential remedies, and allowed both parties to express their positions on the mistrial, and this was an adequate decision-making process; and 2) regardless of whether striking the witness's testimony would have unquestionably led to reversal of an eventual conviction, it would have been extremely prejudicial to defendant, and thus the second trial of petitioner was permissible under the Double Jeopardy Clause.

Read Gouleed v. Wengler, No. 09-1256

Appellate Information

Submitted: November 18, 2009

Filed: December 23, 2009

Judges

Opinion by Judge Murphy

US v. Rehak, No. 09-1405

Defendant's convictions for conspiring to violate civil rights and theft of government property are affirmed where: 1) the fact that defendants were unsuccessful in making the drug transaction at issue was irrelevant to their culpability for conspiring; 2) defendants' subjective motivations were relevant to prove the intent to deprive property without due process of law under 18 U.S.C. section 241; and 3) a criminal violation of section 241 may occur even if the state provides a post-deprivation remedy.

Read US v. Rehak, No. 09-1405

Appellate Information

Submitted: November 18, 2009

Filed: December 22, 2009

Judges

Opinion by Judge Benton

US v. Kain, No. 08-3396

Defendant's child pornography conviction is affirmed where: 1) the evidence was sufficient for the district court to reasonably find, beyond a reasonable doubt, that defendant knowingly possessed the images of child pornography found on his computer; 2) the evidence was more than sufficient to support the district court's finding that the images depicted real minors; and 3) the district court reasonably found that one or more of the twenty-seven images depicted sexually explicit conduct, and that defendant knew that fact based on his knowing possession of the images and his admissions when arrested.

Read US v. Kain, No. 08-3396

Appellate Information

Submitted: September 25, 2009

Filed: December 22, 2009

Judges

Opinion by Judge Loken

Monson v. Drug Enforcement Admin., No. 07-3837

In an action seeking a declaration that the Controlled Substances Act (CSA) did not apply to plaintiffs' planned cultivation of cannabis pursuant to licenses they obtained from the State of North Dakota, dismissal of the complaint is affirmed where the Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1 (2005), disposed of plaintiffs' argument that the CSA could not be interpreted to reach their intrastate cultivation and processing of cannabis without violating the Commerce Clause.

Read Monson v. Drug Enforcement Admin., No. 07-3837

Appellate Information

Submitted: November 12, 2008

Filed: December 22, 2009

Judges

Opinion by Judge Bowman

US v. Nelson, No. 09-1305

Defendant's sentence for wire fraud and being a felon in possession of a handgun is affirmed where defendant's prior expunged Arkansas conviction still counted in the computation of his criminal history under the Sentencing Guidelines because it was not expunged due to constitutional invalidity, innocence, or a mistake of law, as required under the Guidelines.

Read US v. Nelson, No. 09-1305

Appellate Information

Submitted: December 14, 2009

Filed: December 21, 2009

Judges

Per Curiam

US v. West, No. 08-3916

Defendant's cocaine possession conviction is affirmed where: 1) the district court properly credited the testimony of a detective on the scene who testified that the officers waited until a warrant issued before conducting the search; and 2) there was no clear error in the district court's finding that the government met the necessity requirement for a wiretap.

Read US v. West, No. 08-3916

Appellate Information

Submitted: September 25, 2009

Filed: December 21, 2009

Judges

Opinion by Judge Arnold

US v. Keele, No. 08-3387

Defendant's conviction for being a drug user in possession of a firearm is affirmed where the officer's affidavit at issue established the required nexus between the evidence being sought in the warrant application and defendant's residence.

Read US v. Keele, No. 08-3387

Appellate Information

Submitted: May 15, 2009

Filed: December 21, 2009

Judges

Opinion by Judge Gibson

In a petition for review of a civil monetary penalty imposed by the Secretary of the Department of Health and Human Services on petitioner nursing home for an "immediate jeopardy" violation of 42 C.F.R. section 483.13(c), which required nursing homes to thoroughly investigate all allegations of resident neglect or abuse, including injuries of unknown sources, the petition is granted where the Secretary's finding of the likely harm necessary to warrant an immediate-jeopardy-level finding was based on pure speculation and not supported by substantial evidence in the administrative record as a whole.

Read Grace Healthcare of Benton v. US Dept. of Health & Hum. Servs., No. 08-3218

Appellate Information

Submitted: April 16, 2009

Filed: December 21, 2009

Judges

Opinion by Judge Loken

Akins v. Epperly, No. 08-3753

In a 42 U.S.C. section 1983 action claiming that defendant-officers inadequately investigated an incident in which plaintiff was shot by another officer, denial of defendants' summary judgment motion is reversed where, although plaintiff highlighted multiple errors and inconsistencies in defendants' investigation, he failed to show conscience-shocking reckless or intentional conduct.

Read Akins v. Epperly, No. 08-3753

Appellate Information

Submitted: October 23, 2009

Filed: December 18, 2009

Judges

Opinion by Judge Riley

US v. Davis, No. 08-3692

Defendant's conviction for willful failure to pay his child support obligations is affirmed where: 1) if defendant's child support obligation was more than he could pay, his remedy was in the Iowa district court where he could seek modification of his support obligation; and 2) there was sufficient evidence for the jury to find that defendant was capable of paying more child support than he did.

Read US v. Davis, No. 08-3692

Appellate Information

Submitted: October 23, 2009

Filed: December 18, 2009

Judges

Opinion by Judge Riley

US v. Brewer, No. 08-3079

Defendant's child pornography conviction is affirmed where: 1) a third party's consent to a search was valid so long as there was no evidence that police had removed defendant from the entrance of his house for the sake of avoiding a possible objection; 2) information in warrant applications supported the belief that child pornography would be found in defendant's home; and 3) the warrant was timely executed.

Read US v. Brewer, No. 08-3079

Appellate Information

Submitted: September 25, 2009

Filed: December 17, 2009

Judges

Opinion by Judge Gruender

Burns v. Prudden, No. 09-1704

In a child molestation prosecution, dismissal of petitioner's habeas petition as untimely is reversed where the Eighth Circuit's intervening decision in Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008), overruling a previous decision regarding the calculation of the statute of limitations for habeas petitions from Missouri, satisfied the "extraordinary circumstance" requirement for equitable tolling.

Read Burns v. Prudden, No. 09-1704

Appellate Information

Submitted: September 24, 2009

Filed: December 16, 2009

Judges

Opinion by Judge Gruender

US v. Foreman, No. 09-1345

Defendant's social security benefits fraud conviction is affirmed where: 1) the district court properly admitted defendant's loan application and letter into evidence as business records under Fed. R. Evid. 803(6); and 2) even assuming, without deciding, that the government's questions on cross-examination were plainly improper, the errors were not so prejudicial as to affect the outcome of the trial.

Read US v. Foreman, No. 09-1345

Appellate Information

Submitted: September 25, 2009

Filed: December 16, 2009

Judges

Opinion by Judge Gruender

Haynes v. Stephenson, No. 08-3766

In a 42 U.S.C. section 1983 action by a prisoner alleging that he was unlawfully disciplined for filing a grievance, judgment for plaintiff is affirmed where: 1) the filing of a disciplinary charge was actionable under section 1983 if done in retaliation for the inmate's having filed a grievance pursuant to established procedures; 2) the district court did not clearly err in finding that defendant would not have filed the disciplinary report at issue but for a retaliatory motive; and 3) because defendant's actions resulted in only nominal compensatory damages, the district court did not err in concluding that the high ratio of punitive to compensatory damages awarded did not offend due process.

Read Haynes v. Stephenson, No. 08-3766

Appellate Information

Submitted: September 25, 2009

Filed: December 16, 2009

Judges

Opinion by Judge Gruender

Hooper v. Advance Am., No. 08-3252

In a putative class action alleging violations of state payday loan laws, a denial of defendant's motion to compel arbitration is affirmed where defendant waived its right to seek arbitration by litigating its motion to dismiss the complaint.

Read Hooper v. Advance Am., No. 08-3252

Appellate Information

Submitted: October 22, 2009

Filed: December 16, 2009

Judges

Opinion by Judge Riley

McGehee v. Norris, No. 08-1182

In a capital habeas matter, grant of petitioner's habeas petition is reversed where: 1) to the extent that certain excluded testimony regarding petitioner's family's abuse of a dog was offered to show a pattern of physical violence, it was contradicted by other evidence showing that petitioner himself was not abused; 2) it was not unreasonable for the Arkansas Supreme Court to conclude that petitioner was not prejudiced by the trial judge's decision to sustain an objection to a witness's testimony about the abuse of petitioner's sister; and 3) the absence of any prejudice was particularly apparent given the horrific nature of the crime.

Read McGehee v. Norris, No. 08-1182

Appellate Information

Submitted: May 14, 2009

Filed: December 16, 2009

Judges

Opinion by Judge Wollman

Cintas Corp. v. NLRB, No. 09-1344

In a petition for review of the NLRB's order finding that petitioner had interfered with its employees' exercise of rights protected under the National Labor Relations Act (NLRA) and imposing remedial measures, the petition is denied where: 1) while an employer may assert that an employee's conduct is unprotected under the NLRA because it had an unlawful objective, the acts or objective of the national union cannot be imputed to an individual employee; and 2) petitioner's repudiation was insufficient to cure its unlawful confiscation of union flyers.

Read Cintas Corp. v. NLRB, No. 09-1344

Appellate Information

Submitted: September 21, 2009

Filed: December 15, 2009

Judges

Opinion by Judge Murphy

Thompson v. United Transp. Union, No. 09-1223

In an action alleging that a union breached its duty of fair representation by choosing to distribute the surplus of a settlement fund to the entire membership of the union, rather than distributing it to members who had filed grievances, summary judgment for defendant is affirmed where the settlement agreement did not indicate that the settlement was for the exclusive benefit of the individuals with grievances.

Read Thompson v. United Transp. Union, No. 09-1223

Appellate Information

Submitted: October 20, 2009

Filed: December 8, 2009

Judges

Opinion by Judge Wollman

US v. Hodge, No. 09-1129

Defendant's wire fraud sentence is affirmed where the district court did not clearly err in finding that the government presented sufficient evidence to establish a nexus between defendant and each of the fraudulent life insurance reimbursement submissions at issue.

Read US v. Hodge, No. 09-1129

Appellate Information

Submitted: September 22, 2009

Filed: December 7, 2009

Judges

Opinion by Judge Riley

In a construction dispute, the denial of defendant's motion to compel arbitration is affirmed where defendant waived its right to arbitrate by participating in the litigation through conducting discovery and moving for judgment on the pleadings.

Read Southeastern Stud & Components, Inc. v. Am. Eagle Design Build Studios, LLC, No. 08-3448

Appellate Information

Submitted: June 11, 2009

Filed: December 7, 2009

Judges

Opinion by Judge Hansen

US v. Miller, No. 08-3052

In the government's appeal from defendant's wire fraud sentence, the sentence is affirmed where: 1) the government cited no reason why the court should not defer to the district court's actual loss conclusion; and 2) where there was no actual loss and no intended loss, the Sentencing Guidelines did not permit the substitution of the "gain" measure for loss.

Read US v. Miller, No. 08-3052

Appellate Information

Submitted: April 16, 2009

Filed: December 7, 2009

Judges

Opinion by Judge Shepherd

Olmsted v. Holder, No. 08-3709

In a petition for review of the BIA's order removing petitioner from the U.S., the petition is denied where petitioner's prior conviction under Minnesota law for making terroristic threats constituted an aggravated felony because it involved a crime of violence, rendering petitioner statutorily ineligible for cancellation of removal.

Read Olmsted v. Holder, No. 08-3709

Appellate Information

Submitted: October 20, 2009

Filed: December 4, 2009

Judges

Opinion by Judge Wollman

US v. Sawyer, No. 09-1367

Defendant's bank robbery conviction and sentence are affirmed where: 1) police had reasonable articulable suspicion to detain him; 2) it was defendant who initiated the interrogation which led to his confession after being confronted with evidence linking him to the robbery; and 3) defendant's prior state conviction for attempted robbery constituted a crime of violence, for career offender purposes.

Read US v. Sawyer, No. 09-1367

Appellate Information

Submitted: September 22, 2009

Filed: December 3, 2009

Judges

Opinion by Judge Bye

Wimbley v. Cashion, No. 08-2829

In an action by a prison guard against her supervisor for allegedly terminating her based on her race and sex in violation of 42 U.S.C. section 1983, denial of summary judgment based on qualified immunity to defendant is affirmed where a reasonable jury could find that defendant's different treatment of plaintiff and a coworker was evidence that the stated reasons for plaintiff's firing were pretextual.

Read Wimbley v. Cashion, No. 08-2829

Appellate Information

Filed December 3, 2009

Judges

Opinion by Judge Benton

US v. Salem, No. 09-1249

Defendant's sentence for knowingly using unauthorized access devices, more specifically, for using fraudulent bar code labels to obtain goods at Wal-Mart stores at lower prices, is vacated where the district court erred in increasing defendant's offense level for production of an unauthorized access device under U.S.S.G. section 2B1.1(b)(10)(B)(i) because no evidence was presented that he produced the fraudulent bar code labels used in his scheme.

Read US v. Salem, No. 09-1249

Appellate Information

Submitted: November 16, 2009

Filed: December 1, 2009

Judges

Per Curiam

US v. Wise, No. 09-1141

Defendant's conspiracy to manufacture marijuana conviction is affirmed where: 1) there was no two-part interrogation for Miranda purposes because, prior to the recitation of the Miranda warnings, the officers made no deliberate or calculated effort to elicit a confession from defendant, and defendant made no incriminating statements; 2) following a "knock and talk," defendant told the detectives that he would prefer to talk inside his apartment, and he voluntarily consented to the detectives' entrance into the apartment; and 3) there was sufficient evidence to convict defendant of the conspiracy.

Read US v. Wise, No. 09-1141

Appellate Information

Submitted: September 25, 2009

Filed: December 1, 2009

Judges

Opinion by Judge Shepherd

US v. Wahlstrom, No. 08-3986

Defendant's drug and firearm possession sentence is affirmed where: 1) the district court carefully reviewed the testimony of each witness and provided specific reasons for its belief of some and disbelief of others; 2) the Sentencing Guidelines' obstruction of justice enhancement applied where a defendant targeted a prosecutor or his family; and 3) the district court's refusal to hear from witnesses who attended the sentencing hearing to testify on defendant's behalf did not show that the court gave inadequate consideration to the 18 U.S.C. section 3553(a) factors.

Read US v. Wahlstrom, No. 08-3986

Appellate Information

Submitted: October 23, 2009

Filed: December 1, 2009

Judges

Opinion by Judge Murphy