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

March 2010 Archives

US v. Boesen, No. 08-3842

In US v. Boesen, No. 08-3842, the Eighth Circuit affirmed defendant's health care fraud convictions, holding that defendant's Rule 33 motion for a new trial was untimely because defendant did not file a Rule 33 motion within seven days after the verdict, and did not ask the district court for an alternative determination about a new trial.

As the court wrote:  "On August 7, 2006, immediately after excusing the jury, the district court announced that it was prepared to rule on Boesen's motion under Fed. R. Crim. P. 29 for a judgment of acquittal. The court asked if counsel wished to make any additional record, which they declined. The court then granted the Rule 29 motion for acquittal (as well as his co-defendant's Rule 29 motion on the conspiracy charge, as Boesen was the only charged co-conspirator). Boesen's co-defendant then made an oral motion for acquittal on all charges pursuant to Rule 29, or in the alternative, for a new trial pursuant to Rule 33. The district court denied both of the co-defendant's oral motions, and recessed the trial. Boesen made no motion for a new trial within seven days after the verdict."

Related Resources

Criminal and Immigration Cases

Nadeem v. Holder, No. 08-3829, involved a petition for review of the denial of petitioner's asylum application.  The court of appeals denied the petition on the grounds that 1) the immigration judge's adverse credibility finding, supported by specific and cogent reasons for disbelief, detailed the discredited information, undermined allegations of past persecution, and provided a proper basis for denying petitioner's claim for withholding of removal; and 2) petitioner failed to provide sufficient evidence that he would be subject to torture in Pakistan.

In US v. Fenner, No. 08-3953, the Eighth Circuit affirmed defendants' drug conspiracy convictions and sentences, holding that 1) even if prosecutorial misconduct occurred at the grand jury hearing, it was well-established that a petit jury's guilty verdict normally rendered errors in the grand jury proceedings harmless; 2) defendant was not prejudiced by the use of leading questions; 3) the court could not detect from the record an attempt to confuse the jury or a corresponding need to supply answers to faltering witnesses; 4) the mandatory minimums in 18 U.S.C. section 841(b)(1)(A) do not violate equal protection; and 5) although the sex-offender treatment imposed as part of defendant's sentence did not relate to the drug offenses, it did relate to another offense the defendant previously committed.

Related Resources

Contract and Criminal Cases

In Cole v. Homier Dist. Co., No. 09-1725, an action for breach of a tractor dealership agreement, the court of appeals affirmed summary judgment for defendant in part where 1) because the dealership agreements at issue were not preexisting, but arose out of the agreements with defendant, plaintiff could not state a claim for tortious interference; 2) plaintiff's allegations did not provide grounds to infer an intent to defraud at the time of the agreement's formation; and 3) the district court did not abuse its discretion in finding that an expert's report was flawed both factually and methodologically.  However, the court reversed in part, on the ground that there were factual issues as to whether defendant made sales of whole goods during the notice period under Mo. Rev. Stat. section 407.405.

In US v. Ward, No. 09-1882, the Eighth Circuit reversed defendant's child pornography conviction, on the ground that the district court excluded defendant from trial in violation of the Sixth Amendment, because a trial judge may control disruptive talking during a trial, but an absolute ban on the defendant talking to counsel was, in some circumstances, a violation of the defendant's right to counsel.

Related Resources

Civil Rights and Criminal Matters

In US v. King, No. 08-3822, the Eighth Circuit vacated defendant's firearm possession sentence, on the ground that the court of appeals was unable to resolve, without conjecture, whether defendant's prior adjudication of juvenile delinquency qualified as a conviction for a violent felony under the Armed Career Criminal Act, because the court could not determine in the first instance whether defendant's juvenile adjudication involved possessing a sawed-off rifle as opposed to possessing some "other implement," such as a knife.

McMullan v. Roper, No. 09-1176, concerned a murder prosecution in which the district court denied petitioner's habeas petition.  The court of appeals affirmed, on the ground that a Missouri Supreme Court Rule 74.06 petition did not qualify as a properly filed application for state post-conviction or other collateral review so as to toll the statute of limitations under 28 U.S.C. section 2244(d)(2).

King v. Iowa Dept. of Corrs., No. 09-1912, concerned an action by a prisoner claiming that he was unlawfully ordered to clean up effluents after a clogged toilet in one of the cells caused a floor drain in the common area to overflow.  The court of appeals affirmed the dismissal of the complaint, holding that plaintiff did not appeal either grievance response he received to the warden and thus failed to exhaust his administrative remedies.

In US v. Amerson, No. 09-1984, the court of appeals affirmed defendant's conviction for possessing a firearm after a domestic violence conviction, on the grounds that 1) at his plea hearing, defendant assented to facts showing that he had a prior domestic violence conviction; and 2) the state court in the domestic violence case had no duty to advise defendant of the possibility of a future firearm conviction.

Related Resources

Civil Rights, Criminal, Employment and Immigration Cases

In US v. Brown, No. 07-2287, the court of appeals vacated defendant's crack cocaine distribution sentence, holding that a prior conviction for delivery of a "simulated controlled substance" under Iowa law did not qualify as a "felony drug offense" under a recidivism provision of the federal Controlled Substances Act.

EEOC v. Kelly Servs., Inc., No. 08-3880, concerned an action by the EEOC alleging that defendant employment agency discriminated against a Muslim by failing to refer her to an employer because of her refusal to remove her khimar for work.  The court of appeals affirmed summary judgment for defendant, holding that the EEOC failed to show that the employer had an available position to which defendant could actually refer the candidate when she applied for available temporary work.

In US v. Ochoa-Gonzalez, No. 09-1231, the court of appeals reversed defendant's aggravated identity theft conviction, on the grounds that 1) neither defendant, nor her counsel, nor the court understood that her knowledge that the stolen ADIT number belonged to another person was an essential element of aggravated identity theft under 18 U.S.C. section 1028A(a)(1), and thus defendant's guilty plea was invalid; and 2) defendant's spontaneous statements to an officer were voluntary and not in response to interrogation, and thus should not be suppressed.

Thimran v. Holder, No. 09-1749, involved a petition for review of the BIA's order denying petitioner's request for a continuance and voluntary departure and ordering him removed.  The court of appeals denied the petition, holding that the Immigration Judge's (IJ) decision not to grant a continuance did not amount to an abuse of discretion, considering that the IJ denied petitioner's request for a continuance after multiple I-130 petitions were denied, the case had been continued for over two years, and petitioner presented no obviously meritorious grounds for appeal.

Felder v. King, No. 09-1814, concerned a 42 U.S.C. section 1983 action alleging an unlawful police shooting.  The Eighth Circuit dismissed defendants' appeal from a denial of qualified immunity, holding that the court faced the type of fact-based qualified immunity decision that was not appropriate for interlocutory appeal.

Williams v. Jackson, No. 09-1843, involved an Eighth Amendment claim against a prison maintenance supervisor and three correction officers alleging that they willfully and maliciously exposed plaintiff to ultraviolet radiation resulting in physical injury.  The court of appeals affirmed in part the denial of summary judgment based on qualified immunity, holding that 1) defendants relied on their own version of the facts to assert that they took no malicious or retaliatory action towards plaintiff; 2) officers' argument overstated the degree of specificity required in existing law for a constitutional right to be clearly established.  However, the court reversed in part, on the ground that, as to a maintenance-supervisor defendant, plaintiff failed to allege a constitutional violation, and alleged nothing more than simple negligence.

In US v. Ault, No. 09-1921, the court of appeals affirmed defendant's drug conspiracy sentence, holding that 1) defendant's prior drug paraphernalia conviction appeared severable and distinct from the conspiracy to manufacture methamphetamine, and thus the district court properly assigned criminal history points based on that conviction; and 2) although the district failed to impose the proper sentence reduction for acceptance of responsibility, the sentence imposed here was significantly below the bottom of the miscalculated advisory Guidelines range.

Related Resources

Dahlen v. Shelter House, No. 09-1909

Dahlen v. Shelter House, No. 09-1909, concerned an action claiming a violation of the Fifth Amendment's Takings Clause and requesting damages as well as an injunction to prevent the planned construction of a homeless shelter near plaintiffs' residence.  The Eighth Circuit affirmed the dismissal of the complaint, holding that, because the proposed homeless shelter met the Fifth Amendment's public purpose requirement, plaintiffs were required to seek compensation through state inverse condemnation procedures before their claim could be ripe.

As the court wrote:  "This case is the latest front in the protracted legal battle over a homeless shelter that appellee Shelter House plans to build on a plot of land adjacent to the Dahlens' property in Iowa City, Iowa. Michael and Janet Dahlen, along with Michael McNiel ("the Dahlens"), brought suit under 42 U.S.C. § 1983, claiming a violation of the Fifth Amendment's Takings Clause and requesting damages as well as an injunction to prevent the planned construction. Because we find that the controversy is not ripe, we affirm the district court's dismissal for lack of jurisdiction."

Related Resources

Criminal Matters

In US v. Cisneros-Gutierrez, No. 09-1890, the court of appeals affirmed defendant's drug and firearm conspiracy convictions, holding that 1) there was no credible evidence that the police were physically intimidating or made any promises in exchange for consent to search a residence; 2) as to the police's entry into another residence, an objectively reasonable police officer, knowing the information supplied by an informant and observing defendants' conduct, would conclude that there was danger of removal or destruction of evidence of a crime; and 3) the knock-and-talk that was conducted in this case was a reasonable and proper investigative strategy that did not foreseeably increase the likelihood of the destruction of evidence.

Christenson v. Ault, No. 09-2312, involved a habeas petition in a burglary and kidnapping prosecution.  The court of appeals affirmed the denial of the petition, holding that 1) petitioner procedurally defaulted his claim of a Brady violation; and 2) trial counsel did not breach any professional duty in declining to independently investigate whether he received all photographs from the government.

Related Resources

Commercial, Criminal, ERISA and Immigration Cases

Clifton v. Holder, No. 08-3726, involved a petition for review of the BIA's order denying petitioner's motion to remand to the immigration judge (IJ) and dismissing her appeal of the IJ's denial of her motion to reopen removal proceedings.  The Eighth Circuit granted the petition, holding that the BIA abused its discretion by refusing to remand and reopen removal proceedings solely on the ground that the BIA lacked jurisdiction over an application for adjustment of status that had been filed with and was pending before United States Citizenship and Immigration Services.

Pinnacle Pizza Co. v. Little Caesar's Enters., Inc., No. 08-3999, concerned an action by a franchisee alleging, inter alia, breach of the corporation's franchise agreement and violation of the South Dakota Franchise Act, and seeking to cancel a trademark held by defendant.  The court of appeals affirmed summary judgment for defendant, holding that 1) franchise agreements restricting a franchisor from using a franchisee's "original advertising materials" are materially different from an installment or commission contract; and 2) although a reasonable jury could find that defendant knew plaintiff believed that it had rights to the trademarked phrase when defendant submitted its trademark application, this was not sufficient to show bad faith on defendant's part.

In US v. Wisecarver, No. 09-1954, the court of appeals reversed defendant's conviction for depredation of government property, on the ground that a supplemental instruction given by the district court was plainly erroneous, because it misstated the law by instructing the jury to find defendant guilty if it found he used justifiable force to defend himself or his property.

Jobe v. Med. Life Ins. Co., No. 08-3505, involved an ERISA action challenging defendant's denial of plaintiff's claim for long-term disability benefits.  The court of appeals reversed summary judgment for defendant, holding that the district court should have applied a de novo standard of review because the plan did not vest the plan administrator with the power to exercise discretionary authority in making benefits determinations.

In US v. Williams, No. 09-1100, the court of appeals affirmed defendant's crack cocaine conspiracy sentence, on the ground that defendant was not entitled to a further sentence reduction under the modified crack cocaine Sentencing Guidelines because his sentence was based on a binding Fed. R. Crim. P. 11(c)(1)(C) plea agreement.

In US v. Nadeau, No. 09-1599, the court of appeals affirmed defendant's convictions for assault resulting in serious bodily injury and assault with a dangerous weapon, holding that 1) a metal pipe admitted at trial was relevant because it had the tendency to make the existence of defendant's attack on the victim more probable and it had a tendency to prove that the attack was carried out by employing a dangerous weapon; and 2) the district court did not clearly abuse its discretion in determining that the pipe's probative value was not substantially outweighed by the danger of unfair prejudice.

Related Resources

US v. Steward, No. 08-2666

US v. Steward, No. 08-2666, involved the government's appeal of defendant's drug conspiracy sentence.  The Eighth Circuit affirmed the sentence, on the ground that defendant's prior Iowa conviction for operating a vehicle without the owner's consent did not qualify as a "crime of violence" under U.S.S.G. section 4B1.2(a).

As the court wrote:  "Williams and Mureta-Espinosa are likewise controlling in the present case. Although Williams involved § 2K2.1 and Mureta-Espinosa involved section 2L1.2, not section 4B1.2(a), we explained in Williams that "[t]he commentary to both section 2K2.1 and section 4B1.1 refer to section 4B1.2(a), which provides a definition of a 'crime of violence' that is virtually identical to the definition of a 'violent felony' in the Armed Career Criminal Act." 537 F.3d at 971. Furthermore, we stated that "[i]n construing whether auto theft and auto tampering are crimes of violence, we look at what is commonly referred to as the 'otherwise' clause of 18 U.S.C. section 924(e)(2)(B)(ii) or U.S.S.G. section 4B1.2(a)(2)." Id. at 972. Therefore, we hold that the Iowa offense of OVWOC is not a "crime of violence" for purposes of section 4B1.2(a)."

Related Resources

Criminal and Property Law Matters

Quigley v. Winter, No. 08-3630, involved a sexual harassment action against plaintiff's landlord under the Fair Housing Act.  The court of appeals affirmed judgment for plaintiff in part on the grounds that 1) defendant could not show "a complete absence of probative facts" supporting the jury's verdict and that no reasonable jury could have found in plaintiff's favor; 2) the jury could reasonably infer that defendant was telling plaintiff the return of her deposit was conditioned upon defendant seeing more of plaintiff's body or even receiving a sexual favor; and 3) even if the admission of evidence regarding a government investigation of defendant was an error, any possible prejudice was cured by the district court's instruction.  However, the court reversed the judgment in part on the ground that the district court erred in the degree to which it reduced the jury's punitive damage award failed to conduct a proper analysis of plaintiff's entitlement to attorney fees.

In US v. Rector, No. 09-1190, the court of appeals affirmed defendant's convictions for possessing, distributing, and receiving child pornography, holding that defendant's prosecution did not violate the Speedy Trial Act because the district court properly held that a continuance would serve the ends of justice by allowing: 1) the defendant to retain new counsel; and 2) counsel to seek admission to the district and prepare for trial.

In US v. Myers, No. 09-1621, the court of appeals affirmed defendant's sentence for failing to register as a sex offender in violation of 18 U.S.C. section 2250(a), holding that 1) the harm of defendant's prior conviction was not fully accounted for by either Guideline at issue alone, so no double-counting occurred; and 2) even if double-counting occurred in this case, it was permissible because the Sentencing Commission intended the result, and the offense level and criminal history sections address different concerns.

Related Resources

US v. Boaz, No. 09-2591

In US v. Boaz, No. 09-2591, the court of appeals dealt with a defendant's firearm possession sentence and a finding that defendant was subject to the the Armed Career Criminal Act.

The circuit court had previously remanded the case, as it explained, "...because the parties had erroneously stated to the district court that the record contained certain identifying information as to one of the prior violent felony convictions, a 1974 Yavapai County, Arizona conviction for brandishing a weapon other than in self-defense."  Defendant, however, claimed that he wasn't "...the same person who was named in the 1974 Arizona conviction."

On remand, the district court received evidence and reapplied the same 190-month sentence. The circuit court here affirmed, holding that the identical names, coupled with subsequent records containing ample identification evidence listing not only defendant's name, but also identifying characteristics such as height, weight, age, and tattoos, was sufficient to support the district court's finding, by a preponderance of the evidence, that defendant was the same person who was the subject of a prior state conviction.

Related Resources

Holschen v. Int'l Union of Painters, No. 09-1122

Holschen v. Int'l. Union of Painters, No. 09-1122, concerned an action by a former union painter against the union alleging several violations of the Labor Management Reporting and Disclosure Act (LMRDA), as well as a state law claim for intentional interference with a valid business expectancy.

The court of appeals affirmed judgment for defendant, holding that 1) this was not a situation where the circumstances themselves presented a significant danger of bias such that plaintiff was excused from presenting at least some evidence of actual bias involving one or more trial board members in order to survive summary judgment; 2) evidence of ad hoc retaliation by an individual union member did not state a cause of action for a free speech violation under the LMRDA; and 3) there was no evidence the union itself formally disciplined plaintiff in retaliation for his exercise of free speech rights.

Related Resources

Criminal Matters

In US v. Shuler, No. 08-3194, the court of appeals affirmed defendants' sentences for child pornography production on the grounds that 1) the district court's explicit statement that "the ultimate sentence of 470 months would be the same even without the four-level increase for sadistic images and other depictions of violence" cured any procedural error; and 2) even if defendant was ignorant of the hidden camera, the tape recorded on the camera was ample evidence defendant enticed the minor victim to produce child pornography.

In US v. Akens, No. 09-1695, the court of appeals affirmed defendant's drug and firearm possession convictions, holding that 1) defendant's prior Missouri conviction was a sufficient predicate for his 18 U.S.C. section 922(g)(1) conviction, despite its expungement; 2) defendant was not entitled to a Franks hearing because he did not make a substantial preliminary showing; and 3) defendant knowingly and voluntarily waived his rights to appeal the firearm enhancement and the career offender status in exchange for the 140-month sentence.

In US v. Dodd, No. 09-1946, the Eighth Circuit affirmed defendant's sentence for knowingly receiving and possessing child pornography, holding that 1) absent concrete evidence of ignorance -- evidence that was needed because ignorance was entirely counterintuitive -- a fact-finder could reasonably infer that the defendant knowingly employed a file sharing program for its intended purpose; and 2) the district court committed no procedural error in determining defendant's advisory guidelines sentencing range.

Related Resources

Civil Rights, Criminal and ERISA Matters

In US v. Wilder, No. 08-3056, the court of appeals affirmed defendants' drug conspiracy convictions and sentences, on the grounds that 1) the district court did not err in excluding a document as hearsay because a witness was unable to verify that the proffered document was a public record created by the police department; 2) the government established that defendant knowingly and intentionally joined an agreement to distribute controlled substances; 3) the court was not convinced that the trial record presented an obvious case of a defendant with no predisposition to distribute crack cocaine, such that the district court plainly erred by failing to instruct the jury on entrapment; and 4) the district court explained that it had considered all of the 18 U.S.C. section 3553(a) factors, including the nature and circumstances of the offense and defendant's history and characteristics.

Darvell v. Life Ins. Co. of N. Am., No. 09-1058, involved an ERISA action regarding defendant-insurer's denial of long-term disability benefits to plaintiff.  The court of appeals affirmed summary judgment for defendants, holding that 1) it was not an abuse of an ERISA plan administrator's discretion to ignore an opinion when the physician did not provide reliable objective evidence of testing or other proof to support a finding of long term disability; and 2) the plan administrator did not abuse its discretion by using the DOT description of plaintiff's occupation, rather than a description of his actual job duties.

Clos v. Corrections Corp. of Am., No. 09-1816, involved an action by a prisoner claiming that he suffered disability discrimination related to his severe hearing loss.  The Eighth Circuit dismissed plaintiff's appeal from partial summary judgment for defendants, holding that the district court's conclusory order provided no basis for a finding that plaintiff would face hardship or injustice by waiting to appeal until his remaining claim against defendants was fully resolved.

Related Resources

Immigration and Insurance Decisions

The Eighth Circuit decided two insurance disputes and one concerning the denial of an asylum application.

HealthEast Bethesda Hosp. v. United Commercial Travelers of Am., No. 08-3665, was an action for breach of an insurance settlement contract.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) defendant was not an unsophisticated party because it had significant experience in handling and negotiating claims with healthcare providers; 2) because defendant bore the risk of mistake, the district court properly denied rescission based on unilateral mistake; and 3) the record of inaction by defendant strongly supported the denial of relief under both unilateral and mutual mistake.

Thu v. Holder, No. 09-1655, concerned a petition for review of the BIA's order dismissing his appeal from a denial of petitioner's asylum application and related relief.  The court of appeals denied the petition, on the grounds that 1) the Immigration Judge's credibility finding was supported by specific, cogent reasons for disbelief; and 2) the evidence in the record was not so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.

George's Inc. v. Allianz Global Risks US Ins. Co., No. 09-2220, was an action against an insurer claiming that defendant failed to indemnify plaintiff for business expenses and personal property losses as required under the terms of its insurance policy.  The court of appeals affirmed partial summary judgment for defendant on the personal property claim, reversed the partial denial of summary judgment on the business expenses claim, because the policy unambiguously excluded coverage for plaintiff's claimed losses.

Related Resources

Criminal, Government Benefits and Immigration Matters

The Eighth Circuit decided two criminal matters, one immigration case and another concerning social security disability benefits.

In US v. Bolden, No. 08-3835, the court of appeals affirmed defendants' drug conspiracy convictions and sentences on the grounds that: 1) the district court did not abuse its discretion in erring on the side of caution by dismissing a juror when the juror had contact with an interested third party whose identity was known to the juror; 2) evidence that a defendant acted as a source and facilitated a transaction was sufficient for a conviction under the distribution statute; 3) given that defendant did not object to the drug quantity findings at sentencing, and that the evidence at trial supported amounts close to those in the presentence investigation report upon which the district court relied, the findings were adequate under the circumstances; and 4) the evidence at trial showed that defendant recruited members of the conspiracy and directed those members to distribute drugs.

Freeman v. Holder, No. 09-1006, involved a petition for review of the denial of petitioner's motion to reopen his removal proceedings.  The court of appeals denied the petition on the grounds that: 1) since a 209(c) waiver only dealt with waiving grounds for inadmissibility for the purpose of seeking adjustment of status, the waiver petitioner placed in the record had no bearing on whether he was removable for his conviction; 2) petitioner was provided with ample notice of the consequences of a failure to appear; and 3) a proposed witness's testimony would not have changed the outcome of the case, and he was not denied due process.

Wildman v. Astrue, No. 09-1521, involved a petition for review of the denial of social security disability benefits.  The court of appeals denied the petition on the grounds that: 1) the Administrative Law Judge (ALJ) did not err in discounting a physician's opinion because it was conclusory and failed to account for petitioner's unjustified noncompliance; 2) the ALJ did not err when he discounted petitioner's testimony regarding her limitations due to her noncompliance; and 3) the ALJ properly considered and weighed the available medical evidence and petitioner's testimony.

In US v. Granados, No. 09-1570, the court affirmed defendant's drug conspiracy conviction and sentence, on the grounds that 1) the police were justified in entering defendant's room without a warrant because of their reasonable belief that it was necessary to protect the general public, hotel guests and employees; 2) the mere fact some of the men in a police lineup had facial hair like defendant did not, standing alone, indicate that the lineup was suggestive; and 3) the government gave racially neutral reasons for exercising its peremptory challenges to all three of the potential jurors defendant claimed the government struck in violation of Batson.

Relevant Resources

The Eighth Circuit decided one criminal matter involving a defendant's attempt to represent himself, and one employment discrimination case.

In US v. Washington, No. 08-3678, the court of appeals affirmed defendant's conviction for distribution of a controlled substance, holding that: 1) the record did not suggest that defendant's counsel was unprepared or inadequate as counsel, and thus defendant was not effectively compelled to represent himself; 2) despite defendant's admission that his self-representation request was both untimely and for an improper purpose, neither concession served as a basis for reversing the district court's decision to grant his request; 3) there was no abuse of discretion in the district court not ordering a competency evaluation or holding a competency hearing; and 4) there was sufficient evidence to sustain defendant's convictions.

As the court wrote:  "This record is sufficient to establish that Washington's waiver of his right to counsel at trial was knowing, voluntary, and intelligent. The record reflects that the district court advised Washington of the charges and the serious penalties that he faced, and Washington indicated that he understood them. The court outlined trial procedures that Washington would have to follow if he proceeded pro se, repeatedly warned Washington about the dangers of selfrepresentation, and recommended that Washington continue with his counsel numerous times."

In Quasius v. Schwan Food Co., No. 09-1226, an employment discrimination action, the Eighth Circuit affirmed summary judgment for defendant, holding that defendant failed to file a motion to withdraw his dispositive admissions after the district court provided ample notice and opportunity to do so.

As the court wrote:  "After Schwan served its requests for admission, Quasius never asked the court to adjust the normal time for response under Rule 36(a)(3), and Quasius failed to respond within the thirty days specified in the rule. Consequently, the matters specified in Schwan's requests of August 8 were "admitted" and "conclusively established" after September 11, 2008. At that point, the proper procedure for Quasius to "withdraw or amend" the admissions was to file a motion with the court pursuant to Rule 36(b)."

Related Resources:

Civil Rights, Criminal and Immigration Matters

The Eighth Circuit decided six criminal matters, one immigration case and one involving prisoner civil rights.

In US v. Donnell, No. 08-2543, the court of appeals affirmed defendants' drug conspiracy convictions on the grounds that 1) the district court did not abuse its discretion in admitting wiretapped phone recordings, because the danger of unfair prejudice did not substantially outweigh their probative value on the issue of defendant's involvement in the conspiracy; 2) any error in introducing evidence concerning one defendant's prior arrests was harmless because they did not have a substantial influence on the jury's verdict; 3) the various defendants, all of whom were alleged to be members of the same overarching conspiracy, were properly joined; and 4) the mere fact that one defendant was unaware of the more distant members of the chain-conspiracy does not defeat the conspiracy charge.

In US v. Azure, No. 08-3663, the Eighth Circuit affirmed defendant's assault sentence, holding that 1) the record adequately supported the district court's rejection of defendant's self-defense claim, and defendant's arguments regarding her own wounds were immaterial to the court's findings; 2) the district court properly assigned criminal history points based on defendant's prior assaults; and 3) the court had previously rejected the possibility of requiring heightened standards of proof in cases where a sentencing factor proven merely by the preponderance of the evidence drove the overall sentence.

In Karim v. Holder, No. 08-3684, the court denied a petition for review of the BIA's denial of petitioners' asylum application, on the ground that, even assuming that petitioner was credible and could establish past persecution, the court would not interfere with the decision because the record provided sufficient support for the factual finding that changed country conditions meant petitioner did not have a well-founded fear of future persecution.

US v. Fazio, No. 08-3900, involved a prosecution for transportation and possession of child pornography and firearm possession, in which the district court ordered defendant to be forcibly medicated so that he could stand trial.  The court of appeals affirmed the order, holding that 1) the government proved an important government interest was at stake; 2) the government's medical expert made his claim specifically with respect to defendant and after examining his medical history; and 3) the district court did not clearly err by concluding involuntary medication would significantly further the prosecution's interest in prosecuting defendant.

Keup v. Hopkins, No. 09-1079, involved a 42 U.S.C. section 1983 action by a prisoner claiming defendant prison personnel prevented plaintiff from sending drawings outside the prison in violation of the First Amendment.  The court of appeals affirmed the judgment for plaintiff in part, on the grounds that 1) defendants did not raise their mootness or exhaustion defenses at trial; and 2) because the district court directed a verdict for plaintiff, he was the prevailing party.  However, the Eighth Circuit reversed the judgment in part on the ground that, when a prisoner plaintiff only receives nominal damages of $1.00, 42 U.S.C. section 1997e(d)(2) caps attorney fees at $1.50.

In US v. Wiest, No. 09-1389, the court of appeals affirmed defendant's bank robbery conviction, on the grounds that 1) defendant's girlfriend's stepmother was not an instrument or agent of the government for Fourth Amendment purposes when she turned defendant's clothes over to the government; 2) there was sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that defendant committed the charged robberies, and used the gun at issue to do them; and 3) comparison of defendant's 684-month sentence to the robbery of three financial institutions with a gun did not lead to an inference of gross disproportionality.

Rodela-Aguilar v. US, No. 09-1555, involved the government's appeal from a grant of defendant's 28 U.S.C. section 2255 motion for post-conviction relief, alleging trial counsel provided constitutionally ineffective assistance.  The court of appeals reversed on the grounds that 1) defense counsel was not asked at the section 2255 hearing many questions crucial to establish that her conduct fell outside the wide range of reasonable professional assistance; 2) defendant failed to show prejudice as a result of the allegedly ineffective assistance; and 3) as a matter of hindsight the court agreed with counsel's cost-benefit analysis of whether to call defendant's employer as a witness.

In US v. Williams, No. 09-1907, the court of appeals affirmed defendant's bank robbery sentence, on the grounds that 1) the record shows that the district court did in fact address many of the 18 U.S.C. section 3553(a) factors, including the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to afford adequate deterrence to criminal conduct and to protect the public from further crimes of the defendant, the kinds of sentences available, and the need to avoid unwarranted sentence disparities among similarly situated defendants; and 2) the severity of a mandatory consecutive sentence for an 18 U.S.C. section 924(c)(1)(A) offense was an improper factor that the district court may not consider when sentencing a defendant on related crimes of violence.

Related Resources

Criminal and Product Liability Matters

The Eighth Circuit decided three criminal matters, all involving sentencing issues, and one product liability case.

In US v. McCarther, No. 08-3169, the court of appeals affirmed defendant's drug conspiracy sentence, holding that 1) two of the counts against defendant were not improperly joined at the outset simply because the government was not ultimately able to convince the district court at sentencing that the discharge of the firearm and the drug conspiracy were related for purposes of the Sentencing Guidelines calculation; and 2) prior offenses that were part of the same conspiracy being sentenced can be used for 18 U.S.C. section 841 enhancement.

In re: Baycol Prods. Litig., No. 08-3524, involved a failure-to-warn case involving the prescription drug Baycol, a cholesterol-reducing medication.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) an expert relied upon by plaintiff to prove causation had inadequate factual evidence on which to base his opinion; and 2) plaintiff received what he bargained for and therefore could not demonstrate that defendant was unjustly enriched as a result of plaintiff purchasing Baycol.

In US v. Jones, No. 08-3994, the Eighth Circuit affirmed defendant's firearm possession sentence, on the grounds that 1) the court's review of defendant's criminal history convinced the court that the district court did not err when it increased his offense level by two levels and sentenced him to 240 months' imprisonment; 2) the district court did not err by independently considering the applicable Guidelines range and the government's upward departure motion; and 3) defendant's contention that the district court ignored the discretionary nature of U.S.S.G. section 4A1.3(a)(1) was unsupported by the record.

In US v. Woods, No. 09-1794, the court of appeals affirmed another firearm possession sentence, on the grounds that 1) the record contained abundant evidence that a witness's statements were probably accurate; 2) the district court did not clearly err in finding an officer credible, or in finding that defendant possessed the gun with an intent to use the weapon in connection with another felony, assaulting a law enforcement officer; and 3) the district court properly found defendant ineligible for a sentence reduction based upon acceptance of responsibility.

Related Resources

Appeals in Criminal and Employment Discrimination Cases Decided

The Eighth Circuit decided one criminal matter and one involving alleged employment discrimination based on race.

In Lake v. Yellow Transp., Inc., No. 09-1392, the Eighth Circuit reversed a grant of summary judgment for defendant-employer in a race discrimination matter.  The court held that 1) plaintiff was not required to disprove defendant's reason for firing him at the stage of the analysis where plaintiff needed to show that he met his employer's legitimate expectations; and 2) there were material factual disputes over plaintiff's attendance and availability record, and whether defendant applied its policies equally.

In US v. Newell, No. 09-1957, the court of appeals affirmed defendant's crack cocaine conviction and sentence, on the grounds that 1) the district court did not err in concluding that officers who stopped defendant's vehicle did not exceed the bounds of a Terry stop; and 2) defendant contended that the district court presumed the Career Offender Guidelines set a reasonable sentencing range, but the sentencing record showed no such presumption.

Related Resources

Criminal, ERISA and Immigration Decisions

The Eighth Circuit decided one criminal matter, one appeal concerning ERISA, and another case regarding immigration law.

Jones v. Unum Provident Corp., No. 08-3830, involved an action under ERISA for wrongful denial of benefits.  The court of appeals affirmed summary judgment for defendant, holding that: 1) defendant thoroughly investigated plaintiff's claim, both initially and when plaintiff appealed, and its initial and final decisions were carefully reasoned; and 2) coverage under the policy at issue lapsed more than six weeks prior to plaintiff's return to full-time work, and thus her later disability claim was not covered because of a pre-existing condition clause.

Lang v. Napolitano, No. 09-1285, was an action against Department of Homeland Security (DHS) officials seeking an order enjoining defendants from removing plaintiff and a writ of mandamus ordering defendants "to issue a Notice to Appear before an immigration judge."  The court of appeals affirmed the dismissal of the complaint on the grounds that: 1) the DHS's letter to plaintiff was a final administrative order of removal reviewable only in a court of appeals; and 2) at least in the absence of a legal or constitutional defect that could not be remedied by a direct petition for review, the order was final, and no court had jurisdiction over a claim to prevent execution of that order, either by collateral attack or by the imposition of further procedures.

In US v. Owens, No. 09-1829, the court of appeals affirmed defendant's cocaine base sentence following an appeal by the government.  The government claimed that the district court erred when it found that defendant's prior Missouri state conviction for burglary of a commercial building was not a crime of violence.  The Eighth Circuit held that the district court plainly did not disregard the applicability of the Career Offender provision under the Sentencing Guidelines.

Related Resources: