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

February 2010 Archives

Ruling in the Criminal Case of US v. Littlewind

In US v. Littlewind, No. 08-4000, the defendant was convicted of assault with a dangerous weapon, assault resulting in serious bodily injury, and discharge of a firearm during a crime of violence.

As the court of appeals wrote:  "The evidence at trial, taken in the light most favorable to the verdict, showed the following facts. During the two years preceding the incident precipitating this case, Sylvester Littlewind and Budene Eback shared a residence and carried on a romantic relationship. The relationship was characterized by the prodigious consumption of alcohol, frequent verbal altercations, and repeated physical violence."

Defendant challenged both the district court's decision to admit evidence of prior bad acts, and the sufficiency of the evidence adduced at trial to convict him.

However, the court of appeals affirmed the conviction on the grounds that: 1) evidence of past crimes was probative of defendant's intent to commit the offenses at issue; 2) there was more than adequate evidence in the record to support a jury finding that the victim suffered a gunshot wound; and 3) a reasonable jury could have rationally hypothesized that defendant intended to assault the victim with a gun.

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ERISA and Criminal Matters

The Eighth Circuit ruled in one ERISA case and another involving criminal sentencing today.

Carpenters Dist. Council v. JNL Const. Co., No. 08-2283, was an ERISA action on behalf of certain pension funds against a construction company claiming that defendants failed to contribute union employees' fringe benefits to the funds as required by collective bargaining agreements.  The court of appeals reversed the district court's grant of summary judgment for plaintiffs, holding that plaintiffs did not produce sufficient evidence to show the absence of trialworthy issues on the issue of whether defendant corporation was used to perpetrate a fraud.

In US v. Lomeli, No. 09-1366, the Eighth Circuit affirmed defendant's drug and money laundering sentence, on the grounds that 1) the doctrine of specialty did not operate to bar consideration of all pre-extradition conduct when determining a defendant's punishment for the extradited offense; 2) the district court properly calculated defendant's offense level and criminal history and correctly determined his advisory Guidelines sentencing range; and 3) the district court's discussion of the 18 U.S.C. section 3553(a) factors was sufficient to comply with 18 U.S.C. section 3584 and U.S.S.G. section 5G1.3.

Related Resources

Civil Rights Decision in Baribeau v. Minneapolis

Baribeau v. Minneapolis, No. 08-3165, concerned an action claiming that plaintiff-protesters were seized without probable cause and in retaliation for exercising their First Amendment rights.  The district court granted summary judgment for defendants.

As the court of appeals wrote:  "At about 6 p.m. on Saturday, July 22, 2006, the plaintiffs met at the Nicollet Mall light rail station in downtown Minneapolis, while the city was in the midst of hosting a week-long summer festival known as the Aquatennial. The plaintiffs' plan was to protest the "mindless" nature of consumer culture by walking through the downtown area dressed as zombies. Most of the plaintiffs wore white powder and fake blood on their faces and dark makeup around their eyes."

The court of appeals affirmed the judgment in part where: 1) a reasonable jury could not find that retaliatory animus was a substantial factor or "but-for" cause of the plaintiffs' arrest and detention; and 2) balancing the nature of the intrusion against the need for institutional security, the decision to confiscate one plaintiff's prosthetic leg was reasonable.  However, the court reversed in part where: 1) the arresting officers did not have probable cause to arrest plaintiffs for committing misdemeanor disorderly conduct; and 2) the state of the law at the time of the arrests was clearly established such that a reasonable person would have known there was no probable cause to arrest the plaintiffs for engaging in protected expressive conduct under the disorderly conduct statute.

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Civil Rights, Criminal and Employment Matters

The Eighth Circuit decided four criminal matters, one civil rights case and one employment discrimination case.

In Polson v. Bowersox, No. 08-3919, petitioner appealed from the district court's dismissal of his habeas petition as untimely.  The Eighth Circuit reversed, holding that the statute of limitations was tolled during the pendency of petitioner's petition for relief pursuant to Missouri Supreme Court Rule 91, and thus, petitioner's federal habeas petition was timely.

Murray v. Lene, 09-1198, was a 42 U.S.C. section 1983 action alleging an unlawful seizure.  The Eighth Circuit affirmed in part the dismissal of the complaint, holding that 1) the district court did not abuse its discretion by declining to exercise supplemental jurisdiction over plaintiff's remaining state law claims; 2) plaintiff's conspiracy claim failed because the complaint failed to allege a "meeting of the minds" among the alleged conspirators; and 3) recklessness could be inferred from the omission of information from an affidavit only when the material omitted would have been clearly critical to the finding of probable cause.

Ernster v. Luxco, Inc., No. 09-1200, was an age discrimination action in which plaintiff appealed from judgment for defendant after trial.  The Eighth Circuit affirmed on the grounds that 1) the district court's instruction, taken as a whole in light of the evidence and the Darden standard, fairly and adequately submitted the issue to the jury of whether plaintiff was an employee or an independent contractor; and 2) a reasonable jury could have found that plaintiff was an independent contractor.

In US v. Lowry, No. 09-1514, the Eighth Circuit affirmed defendant's sentence for failing to register as a sex offender, holding that the district court properly followed the process unambiguously set forth in the Guidelines and the Sex Offender Registration and Notification Act by comparing defendant's underlying Illinois conviction to the crimes listed in 42 U.S.C. section 16911(4)(A)(i).

In US v. Molina-Perez, No. 09-1611, the Eighth Circuit affirmed defendant's conviction and sentence for conspiring to manufacture marijuana and maintaining a place to manufacture marijuana, on the grounds that 1) there were sufficient grounds on which the jury could find defendant guilty of conspiracy beyond a reasonable doubt; 2) a singular, benign reference to homicide that did not link defendant to the deaths and in no way caused him to suffer prejudice did not require a mistrial; and 3) the government provided sufficient evidence with which the district court could find that defendant maintained a leadership role in the offense.

In King v. US, No. 09-2212, the Eighth Circuit vacated the denial of defendant's motion to reduce his drug possession sentence, holding that, because a conviction was not a "prior felony" within the meaning of U.S.S.G. section 4B1.1 unless it received criminal history points under subsection (a), (b), or (c) of section 4A1.1, and it was uncertain whether defendant's convictions for resisting arrest received points under one of those subsections, the rule of lenity resulted in a shorter sentence.

Related Resources

Criminal and Employment Discrimination Decisions

The Eighth Circuit decided three cases today, one of which concerned Iowa's anti-spam law, and was discussed separately here.  The other two were an Americans with Disabilities Act action and a criminal matter.

In Lors v. Dean, No. 09-1382, plaintiff brought an Americans with Disabilities Act action claiming that defendant employer removed plaintiff from a team leader position based on his disability (diabetes).  The district court granted summary judgment for defendant.

The Eighth Circuit affirmed, holding that plaintiff did not demonstrate that he suffered an adverse employment action because of his diabetes.

In US v. Estey, No. 09-1950, defendant was convicted, after a trial, of possession and receipt of child pornography.

The court of appeals affirmed, on the grounds that: 1) the totality of the circumstances did not indicate that defendant's will was overborne by the conduct of the law enforcement agents who interviewed him; 2) evidence developed within several months of an application for a search warrant for a child pornography collection and related evidence was not stale; and 3) defendant's use of a file-sharing network amounted to "the receipt of, expectation of receipt, or thing of value, but not for pecuniary gain" under U.S.S.G. section 2G2.2(b)(3)(B).

Related Resources

State Anti-Spam Law Addressed in Kramer v. Perez

In Kramer v. Perez, No. 08-3841, plaintiff sued claiming that defendants and their company sent millions of spam e-mails to plaintiff's business in violation of Iowa's anti-spam statute.  After a bench trial, the district court held defendants jointly and severally liable for over $236 million in statutory damages.  Defendant, Suzanne Bartok, one of the individuals held liable, appealed.

As the court of appeals wrote: "the district court held Perez and Bartok jointly and severally liable to Kramer for over $236 million in statutory damages-$10 per spam e-mail transmitted under the anti-spam statute's private cause of action."

The Eighth Circuit reversed, holding that the district court incorrectly interpreted and applied Iowa's anti-spam statute to hold defendant jointly and severally liable. Specifically:

"We believe that section 714E.1(2) is plain and its meaning is clear. As discussed above, to violate this section, a person must use an "interactive computer service" to "initiate the sending" of spam e-mail."

However, "[s]ince there is no evidence that Bartok ever used an interactive computer service to initiate the sending of spam, Bartok cannot be held liable for violating section 714E.1(2)."

Further, "Bartok cannot be held liable under section 714E.1 for civil conspiracy and/or aiding and abetting because the statute's text creates no such liability" and she also "cannot be liable under Iowa common law civil conspiracy and/or aiding and abetting theories because [plaintiff] did not prove the actual damages elements necessary to prevail under such claims."

Related Resources

Criminal and Insurance Matters

The Eighth Circuit today decided four criminal matters and two insurance coverage disputes.

In US v. Stephens, No. 09-3706, following defendant's indictment for child pornography transportation, the district court refused to impose a curfew and electronic monitoring system as required by the Adam Walsh Child Protection Act, on the ground that the Act was facially unconstitutional.  The Eighth Circuit reversed, holding that defendant's facial challenge failed because he could not establish that there were no child pornography defendants for whom a curfew or electronic monitoring was appropriate.

In Bluehaven Funding, LLC v. First Am. Title Ins. Co., No. 09-2383, real estate investors sued a title insurance company claiming it was vicariously liable for fraud by another insurer with which defendant had an agency relationship.  The district court granted summary judgment to defendant and the Eighth Circuit affirmed, holding that 1) the insurer responsible for the fraud lacked the authority to provide escrow and closing services as defendant's agent; and 2) defendant had no duty under the agency agreement to monitor the insurer's conduct.

In Medical Protective Co. v. Bubenik, No. 09-2324, an insurer sought a declaration that it had no duty to pay a malpractice judgment, and the district court granted summary judgment to plaintiff.  The court of appeals affirmed on the ground that the district court did not err in concluding that the malpractice defendant materially breached the cooperation clause in his insurance policy.

In Fincher v. St. Paul Fire & Marine Ins. Co., No. 09-2040, plaintiff claimed that defendant-insurer vexatiously refused to pay plaintiff's underinsured motorist (UIM) claim relating to injuries he sustained while driving a motorcycle as a police officer.  The district court granted summary judgment to defendant.  The Eighth Circuit affirmed, holding that an agent of the local government responsible for its insurance matters possessed the actual, implied authority to sign a form rejecting UIM coverage in excess of the statutory minimum.

In US v. Chavez-Alvarez, No. 09-1308, defendants were convicted after a trial on drug conspiracy charges.  The court of appeals affirmed, holding that 1) the evidence was sufficient to convict defendants of conspiracy because it showed that they either had actual knowledge of the conspiracy or deliberately failed to inquire about it; and 2) a willful blindness instruction was appropriate because defendants claims a lack of guilty knowledge, but the evidence supported an inference of deliberate ignorance.

In US v. Cloud, No. 08-1972, defendant was convicted after a trial of firearm possession.  The Eighth Circuit affirmed on the grounds that 1) defendant did not make "clear and unequivocal" requests for an attorney such that the arresting officer was required to stop the interview; and 2) even if hearsay evidence was introduced at the trial, it did not prejudice defendant.

Related Resources

US v. Strickland (Sentencing)

In US v. Strickland, No. 09-1527, police's search of defendant revealed a firearm and methamphetamine.  Defendant was charged with, and pled guilty to, being a felon in possession of a firearm.  The district court enhanced defendant's sentence under the Sentencing Guidelines on the ground that he possessed the firearm in connection with the commission of felony drug possession. According to the court's opinion, "[w]hile [the defendant] was being fingerprinted at the jail, a loaded Ruger .22 caliber revolver fell from [his] pants." Defendant "told the officer that he carried the gun because he was afraid of being robbed."

Defendant appealed but the Eighth Circuit affirmed the sentence, holding that the district court made the findings necessary to support the enhancement, because the district court affirmatively made a finding that the gun found on defendant's person facilitated or had the potential to facilitate his drug-possession offense.

Related Resources:

Breach of Contract and Sentencing Cases Decided

The Eighth Circuit decides two cases today, one involving an alleged breach of a settlement agreement reached in bankruptcy proceedings, and another the appropriate sentence for a "walkaway escape" from a federal prison camp.

American Prairie Constr. Co. v. Hoich, No. 08-1288, concerned an action to enforce a settlement agreement allegedly reached by the parties in a bankruptcy proceeding.  After a bench trial, the district court entered judgment for plaintiff.

The Eighth Circuit affirmed the district court's denial of defendant's motion to dismiss and its motion to recuse the district judge, because the statements in the district court's opinions and in the trial transcripts manifestly did not demonstrate a deep-seated favoritism or antagonism, nor did they display a disposition so extreme as to render fair judgment impossible.  However, the court of appeals reversed the district court's order enforcing the settlement agreement on the ground that the parties did not have a meeting of the minds on an essential term.

US v. Jackson, No. 08-3979, involved a criminal defendant's appeal from his sentence for a "walkaway escape" from a federal prison camp.

The Eighth Circuit affirmed defendant's sentence on the ground that, even if the district court was incorrect in holding that an 18 U.S.C. section 751(a) conviction for a walkaway escape qualified as a crime of violence, the sentencing court's harmless error in applying the Sentencing Guidelines did not require a remand.  This was because the district court sentenced defendant below the career-offender Guidelines and within the range that would have applied had the court found the career-offender provisions inapplicable.

Related Resources

US v. Fajardo-Fajardo, No. 09-1845

Defendant's conviction for illegal reentry into the U.S. is affirmed where: 1) 8 C.F.R. section 103.7(d) authorized Immigration and Customs Enforcement agents to certify records or the non-existence of records; and 2) defendant's corroborated confession was sufficient evidence to support the jury verdict.

Read US v. Fajardo-Fajardo, No. 09-1845

Appellate Information

Submitted: November 20, 2009

Filed: February 12, 2010

Judges

Opinion by Judge Melloy

US v. Kelley, No. 09-1561

Defendant's firearm possession conviction is affirmed where: 1) there was no clear error in the district court's conclusion that defendant's consent to search his shed was voluntary; and 2) there was sufficient evidence to convict defendant because he admitted at trial that he knew the guns were in his shed.

Read US v. Kelley, No. 09-1561

Appellate Information

Submitted: November 20, 2009

Filed: February 12, 2010

Judges

Opinion by Judge Melloy

US v. Ingram, No. 09-2121

Defendant's drug possession conviction and sentence are affirmed where: 1) a pat-down search of defendant was reasonable due to the officer's concern for his safety; 2) defendant was not prejudiced by the district court's preliminary instruction that the jury may hear evidence that defendant had previously been convicted of a prior drug offense; and 3) 18 U.S.C. section 841 did not require that the government prove a defendant was convicted under a particular statutory provision, but only required proof of a prior felony drug offense.

Read US v. Ingram, No. 09-2121

Appellate Information

Submitted: September 23, 2009

Filed: February 10, 2010

Judges

Opinion by Judge Bright

Dubinsky v. Mermart, LLC, No. 09-2072

In an action by investors in a refinancing venture for a real estate development claiming misrepresentations by the developer that the project was free from environmental hazards, summary judgment for defendant is affirmed where the parties' Subordination Agreement required plaintiffs, who were Subordinate Bondholders, to obtain the written consent of the Senior Mortgagee before bringing an enforcement action.

Read Dubinsky v. Mermart, LLC, No. 09-2072

Appellate Information

Submitted: November 17, 2009

Filed: February 10, 2010

Judges

Opinion by Judge Jarvey

US v. Bolivar-Diaz, No. 09-1538

Defendant's sentence for illegal reentry is affirmed where the sentence came within the applicable Sentencing Guidelines range and was amply supported by the record, and thus was not substantively unreasonable.

Read US v. Bolivar-Diaz, No. 09-1538

Appellate Information

Submitted: November 20, 2009

Filed: February 10, 2010

Judges

Opinion by Judge Beam

US v. Whetzell, No. 09-1463

Defendant's firearm possession sentence is affirmed where the elements of defendant's prior offense of housebreaking, a military law offense, constituted a generic burglary crime, which is a crime of violence justifying a sentencing enhancement.

Read US v. Whetzell, No. 09-1463

Appellate Information

Submitted: November 20, 2009

Filed: February 10, 2010

Judges

Opinion by Judge Melloy

US v. Allmon, No. 09-1440

Defendant's conviction and sentence for contempt of court due to his assertion of the Fifth Amendment and refusal to testify in a criminal trial against his cousins are affirmed where: 1) defendant failed to establish a threat of future prosecution; and 2) a witness may not assert the Fifth Amendment privilege when his fear of perjury arises out of his current refusal to testify truthfully and thus risk committing perjury at the present proceeding.

Read US v. Allmon, No. 09-1440

Appellate Information

Submitted: December 18, 2009

Filed: February 10, 2010

Judges

Opinion by Judge Melloy

Mack v. Dillon, No. 09-1295

In a 42 U.S.C. section 1983 action based on injuries plaintiff sustained when defendant-officers shot at him as he was fleeing after an armed robbery, summary judgment for defendants is affirmed in part where there was no abuse of discretion in the district court's dismissal of one defendant for insufficient service of process. However, the order is reversed in part where there were genuine issues of material fact concerning whether one defendant-officer's actions were objectively reasonable in light of the facts and circumstances confronting him.

Read Mack v. Dillon, No. 09-1295

Appellate Information

Submitted: February 5, 2010

Filed: February 10, 2010

Judges

Per Curiam

Paine v. Jefferson Nat'l Life Ins. Co., No. 08-3743

In an action against an insurer alleging deceptive practices, summary judgment for defendant is affirmed where the statute of limitations was not tolled because plaintiff failed to demonstrate that defendant's actions constituted fraudulent concealment, as there was no positive act of fraud.

Read Paine v. Jefferson Nat'l Life Ins. Co., No. 08-3743

Appellate Information

Submitted: January 11, 2010

Filed: February 10, 2010

Judges

Opinion by Judge Shepherd

Parrish v. Ball, No. 08-3517

In a 42 U.S.C. section 1983 action based on a sheriff's alleged failure to provide sexual harassment training to a subordinate, judgment for plaintiff is reversed where: 1) the Arkansas Code did not impose a duty on the county to train its officers not to sexually assault detainees; and 2) there was nothing in the record suggesting that defendant received any notice of a pattern of unconstitutional acts committed by any of his subordinates.

Read Parrish v. Ball, No. 08-3517

Appellate Information

Submitted: September 22, 2009

Filed: February 10, 2010

Judges

Opinion by Judge Beam

US v. Hodge, No. 09-1602

Defendant's conviction and sentence for conspiracy to manufacture methamphetamine are affirmed where: 1) there was no basis to disturb the jury's finding that the government witnesses were credible; and 2) there was no evidence at trial that defendant affirmatively withdrew from the charged conspiracy, and it was reasonably foreseeable that the conspiracy would continue while he was incarcerated.

Read US v. Hodge, No. 09-1602

Appellate Information

Submitted: December 18, 2009

Filed: February 9, 2010

Judges

Opinion by Judge Wollman

Nestle Purina Petcare Co. v. Comm'r. of Int'l. Rev., No. 09-1381

In the taxpayer's appeal from a tax court's ruling that the taxpayer could not deduct payments for cash distribution redemptive dividends, the order is affirmed where, because 26 U.S.C. section 404(k) did not provide for a deduction-for-dividends-paid under 26 U.S.C. section 561, the taxpayer did not have a "deduction for dividends paid (within the meaning of section 561)" needed to satisfy the exception in 26 U.S.C. section 162(k)(A)(iii).

Read Nestle Purina Petcare Co. v. Comm'r. of Int'l. Rev., No. 09-1381

Appellate Information

Submitted: December 15, 2009

Filed: February 9, 2010

Judges

Opinion by Judge Benton

US v. Butler, No. 09-1137

Defendant's firearm possession conviction and sentence are affirmed where: 1) no Franks violation occurred which would require suppression based on the challenged portions of an affidavit in support of the police's warrant to search defendant's residence; 2) the drug-related evidence introduced at trial, including the paraphernalia, was closely and integrally related to the issue of ownership and possession; and 3) the sentencing transcript establishes that the district court thoroughly considered the 18 U.S.C. section 3553(a) factors.

Read US v. Butler, No. 09-1137

Appellate Information

Submitted: October 23, 2009

Filed: February 9, 2010

Judges

Opinion by Judge Piersol

Heartland Acad. Community Church v. Anderson, No. 08-3723

In a 42 U.S.C. section 1983 action claiming that state officials conspired to raid plaintiff-school's campus and seize scores of its students, denial of defendants' motion for summary judgment based on qualified immunity is affirmed where: 1) the district court was not required to provide defendants with an exhaustive written analysis of the merits of each claim as to each defendant; and 2) all of plaintiff's relevant constitutional rights were clearly established at the relevant time.

Read Heartland Acad. Community Church v. Anderson, No. 08-3723

Appellate Information

Submitted: January 12, 2010

Filed: February 8, 2010

Judges

Opinion by Judge Riley

Johnson v. Minor, No. 08-3207

In a murder prosecution, a denial of petitioner's habeas petition is affirmed where, if the trial court reasonably believed that the defendant planned to testify and that his testimony was necessary to lay the foundation for another witness's testimony, a ruling that the defendant must testify before the other witness did not constitute Brooks error.

Read Johnson v. Minor, No. 08-3207

Appellate Information

Submitted: September 24, 2009

Filed: February 8, 2010

Judges

Opinion by Judge Jarvey

Nooner v. Norris, No. 08-2978

In an action challenging the constitutionality of Arkansas's protocol for execution by lethal injection, summary judgment for defendants is affirmed where: 1) plaintiffs' evidence of previous executions did not establish that the Arkansas protocol created a substantial risk of serious harm that the inmates would remain conscious after the administration of sodium pentothal; 2) plaintiffs failed to establish a genuine issue of material fact about whether the state planned to use intracardiac infusion in future executions; and 3) plaintiffs did not show that they faced a substantial risk of serious harm from the placement of central venous lines by unqualified state personnel.

Read Nooner v. Norris, No. 08-2978

Appellate Information

Argued: November 13, 2009

Decided: February 8, 2010

Judges

Opinion by Judge Gruender

US v. Guiheen, No. 09-1652

Defendant's sentence for being a felon and an unlawful user of a controlled substance in possession of ammunition is affirmed where defendant's access to the rifle he was found with emboldened him to raise a billy club in a threatening manner and thus satisfied U.S.S.G. section 2K2.1(b)(6).

Read US v. Guiheen, No. 09-1652

Appellate Information

Submitted: October 23, 2009

Filed: February 5, 2010

Judges

Opinion by Judge Gruender

US v. Cunningham, No. 09-1037

Defendant's sentence for fraud or misapplication concerning federal funds is affirmed where: 1) an obstruction of justice enhancement imposed by the district court was appropriate because defendant ordered the destruction of time records that would have shown inconsistencies in reporting practices; 2) the major role enhancement was appropriate because defendant's high-placed role in the scheme was undisputed; and 3) there was no clear error in a district court's finding that defendant's illegal conduct involved more than ten and less than fifty victims.

Read US v. Cunningham, No. 09-1037

Appellate Information

Submitted: October 23, 2009

Filed: February 5, 2010

Judges

Opinion by Judge Beam

US v. Craddock, No. 09-1789

Defendant's crack cocaine distribution sentence is affirmed where the question of what constitutes a "prior conviction" for purposes of 18 U.S.C. section 841(b)(1)(A) was a matter of federal, not state, law, and a suspended imposition of sentence qualified as such a prior conviction.

Read US v. Craddock, No. 09-1789

Appellate Information

Submitted: January 11, 2010

Filed: February 1, 2010

Judges

Per Curiam

US v. Fincher, No. 09-1766

In defendant's appeal from a district court's order requiring him to reimburse the U.S. Treasury for the legal services provided to him under the Criminal Justice Act, the order is affirmed where: 1) a conveyance of property made by defendant was voidable as fraudulent because it was made with the actual intent to hinder the government from receiving payment and it was made without receiving reasonably equivalent value at a time when defendant reasonably should have realized that he might incur a criminal fine that he would be unable to pay; and 2) the district court correctly concluded that defendant and his wife could exempt only eighty acres of their land from legal process.

Read US v. Fincher, No. 09-1766

Appellate Information

Submitted: December 17, 2009

Filed: February 1, 2010

Judges

Opinion by Judge Wollman

Tebyasa v. Holder, No. 08-3725

In a petition for review of the BIA's denial of Ugandan native's asylum application, the petition is denied where substantial evidence supported the BIA's determination that petitioner's testimony was not credible based on a lack of corroboration.

Read Tebyasa v. Holder, No. 08-3725

Appellate Information

Submitted: December 15, 2009

Filed: February 1, 2010

Judges

Opinion by Judge Loken