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

April 2010 Archives

Petition by Muslim Albanian for Review of BIA's Decision Granted

Bracic v. Holder, No. 08-2843, concerned a Muslim Albanian's petition for review of the BIA's order denying petitioner's claims for asylum and withholding of removal.  The court of appeals granted the petition, holding that 1) the mistreatment that petitioner claimed to have suffered, when considered on a cumulative basis, compelled the conclusion that he suffered past persecution; and 2) further, the government failed to show by a preponderance of the evidence that conditions in Montenegro have changed to such an extent that a reasonable person in the petitioner's position would no longer have a well-founded fear of persecution.

As the court wrote:  "Petitioner Samir Bracic, a native of the former Yugoslavia and a citizen of Montenegro, petitions for review of an order of the Board of Immigration Appeals ("Board") denying his claims for asylum and withholding of removal. Mr. Bracic contends that the Board violated his Fifth Amendment right to due process by limiting the case on remand to entry of a ministerial order, but then citing lack of additional evidence as the basis for the Board's decision to dismiss his appeal. He further argues that the Board wrongfully upheld the Immigration Judge's determination that Mr. Bracic did not prove past persecution or a clear possibility and well-founded fear of future persecution. Mr. Bracic petitions this court for review of the denial of his applications for asylum and withholding of removal, and we grant the petition."

Related Resources

In US v. Grooms, No. 07-1384, the court of appeals affirmed defendant's drug and firearm possession convictions, holding that the search of defendant's vehicle was supported by independent probable cause because the police had reason to believe the car would contain evidence relevant to a threat made by defendant.

In Storey v. Roper, No. 08-2936, a capital habeas matter, the court of appeals affirmed the denial of petitioner's habeas petition, on the grounds that 1) petitioner had an opportunity to interview the victim impact witnesses presented during sentencing before their testimony, and he had the opportunity (though he did not take it) to cross-examine the witnesses; 2) in light of all of the other relevant and admissible evidence presented at the third penalty-phase trial, a photo of the victim's tombstone did not render the penalty-phase trial fundamentally unfair; 3) based upon the Supreme Court's definition of "acquittal" in the context of a death sentence as explicated in Poland, petitioner had never been acquitted of the death penalty; and 4) petitioner failed to present new reliable evidence that he was innocent of the crime of which he was convicted.

In US v. Cosey, No. 09-1266, the Eighth Circuit defendant's affirmed cocaine base distribution sentence, on the grounds that 1) Eighth Circuit precedent established that Kimbrough did not require a district court to consider the crack-powder disparity when sentencing for a crack offense; 2) defendant offered no support for his contention that he should have been compared to defendants whose career offender Guidelines range was 292 to 326 months; 3) coconspirator guilt was not the exclusive avenue of proof of conspiratorial involvement for a leadership enhancement; and 4) it was not clearly improbable that the weapon was connected with the offense.

In US v. Byers, No. 09-1917, the court of appeals affirmed defendant's firearm possession conviction, holding that 1) the characteristics of the ammunition and the magazine provided the jury with the context in which this crime occurred, and the information was thus relevant and the prosecutor was not guilty of misconduct in presenting it to the jury; and 2) police observation of defendant's brief possession of a firearm was sufficient to support a conviction.

In US v. Coleman, No. 09-2389, the Eighth Circuit affirmed defendant's convictions for firearm and drug possession, on the grounds that 1) the stop of defendant's vehicle was lawful because of the officer's observation of a traffic violation for double parking; 2) defendant's argument that an instructional error affected defendant's substantial rights failed because defendant did not demonstrate prejudice.

Related Resources

Appeal Re Commitment Order, Plus Sentencing Challenge

US v. Millard-Grasshorn, No. 09-2825, concerned defendant's appeal from the district court's order finding defendant mentally incompetent and committing him to the custody of the Attorney General under 18 U.S.C. section 4241(d) for a determination of whether his competency can be restored.  The Eighth Circuit affirmed on the ground that the magistrate judge did not initially commit defendant under section 4241(d), and therefore the court's later order was the first judicial determination of incompetency, and commitment under section 4241(d) was accordingly required by the statute.

Hodge v. US, No. 09-3075, involved a drug and firearm possession prosecution, in which the district court denied defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. section 2255.  The court of appeals affirmed on the ground that Gall v. United States, 552 U.S. 38 (2007), did not apply retroactively to cases that became final prior to its filing.

Related Resources

Drug Conspiracy, Employment Contract and Premises Liability Matters

In US v. Birbragher, No. 08-4004, the Eighth Circuit affirmed defendant's drug conspiracy conviction and sentence, holding that 1) it was well settled that 18 U.S.C. section 841 applied to defendant, as the owner and operator of a company involved in an alleged conspiracy with doctors and pharmacists to distribute controlled substances outside the scope of their professional practice; 2) the Controlled Substances Act, as it existed when defendant engaged in the conduct alleged in the indictment, was not unconstitutionally vague as applied to defendant's ownership and operation of his company; and 3) the court enforced defendant's waiver of his right to appeal and declined to address the merits of his claim.

In US v. Kanner, No. 09-1260, the court of appeals affirmed defendant's drug conspiracy conviction, on the grounds that 1) the indictment charged that physicians and pharmacists contracted by defendant's company acted in a manner inconsistent with the usual course of professional practice, and the Supreme Court's decision in Gonzales v. Oregon, 546 U.S. 243 (2006), did not affect this conclusion; and 2) the Controlled Substances Act, as applied to defendant, was not unconstitutionally vague.

Roberson v. AFC Enters., Inc., No. 09-2523, involved a personal injury action based on plaintiff's fall in defendant's parking lot.  The court of appeals affirmed judgment as a matter of law for defendant, holding that, because the Missouri Supreme Court held that the defendant's method of marketing was the more important factor in determining whether the defendant knew, or by using ordinary care should have known, of the dangerous condition, and plaintiff offered no evidence on this factor, plaintiff failed to satisfy this element of premises liability.

Binkley v. Entergy Ops., Inc., No. 09-2567, concerned an action for breach of contract and promissory estoppel against plaintiff's former employer.  The court of appeals affirmed summary judgment for defendant, on the ground that plaintiff did not meet his burden of showing that he suffered a detriment by not presenting his case to line management regarding his alleged falsification of time sheets.

Related Resources

Whitson v. Stone County Jail, No. 08-1468

Whitson v. Stone County Jail, No. 08-1468, involved an action claiming that defendant-officers failed to protect plaintiff from an assault by a fellow prisoner, and others failed to properly train and supervise the officers responsible for her safety.  The court of appeals reversed summary judgment for defendants, holding that a factfinder could conclude that the situation in which plaintiff was placed demonstrated deliberate indifference to a substantial risk to her safety.

As the court wrote:  "Penny Whitson appeals the district court's grant of summary judgment in favor of the defendants on her pro se claim for relief under 42 U.S.C. section 1983 alleging that two defendants failed to protect her from a particular assault, and others failed to properly train and supervise the officers responsible for Whitson's safety.  Because there remains a question of fact on a determinative issue in this case, and the district court applied the wrong legal standard, we reverse and remand for further proceedings."

Related Resources

Immigration Law Decision in Azie v. Holder

Azie v. Holder, No. 09-1346, concerned a petition for review of the denial of petitioner's application for asylum, withholding of removal, and Convention Against Torture (CAT) protection.  The Eighth Circuit denied the petition, holding that 1) petitioner, through counsel, had ample opportunity at her hearing to raise her lack of comprehension or inability to coherently respond, but did not; and 2) the record reflected that the Immigration Judge's credibility finding was supported by specific, cogent reasons.

As the court wrote:  "The Department of Homeland Security issued Judith Azie a notice to appear charging her with being subject to removal pursuant to § 237(a)(1)(B) of the Immigration and Nationality Act (INA); 8 U.S.C. § 1227(a)(1)(B) (remaining without authorization). Azie admitted the allegations and charges in the notice to appear. Subsequently, Azie applied for asylum, withholding of removal, and Convention Against Torture (CAT) protection. The Immigration Judge (IJ) issued a decision finding Azie removable as charged and denying her requests for relief. The Board of Immigration Appeals (BIA) affirmed the IJ's judgment and Azie now petitions this court for review. We deny the petition."

Related Resources

Apple Inc. Civ Pro Decision, Employment Matter

Elam v. Regions Fin. Corp., No. 09-2004, concerned a Title VII action alleging that defendant-employer discriminated against plaintiff because of her pregnancy.  The court of appeals affirmed summary judgment for defendant, holding that 1) defendant provided a lengthy list of nondiscriminatory, legitimate reasons for terminating plaintiff's employment; and 2) plaintiff did not present sufficient evidence to allow a reasonable jury to conclude that her supervisors' reference to plaintiff's protected status showed an intent to discriminate against plaintiff.

In re: Apple, Inc., No. 09-3689, involved a suit by a manufacturer and distributor of digital music players against Apple.  The Eighth Circuit granted Apple's petition for writ of mandamus seeking an order directing the U.S. District Court for the Western District of Arkansas to transfer the case to the U.S. District Court for the Northern District of California, on the grounds that 1) the inconvenience to defendant would be significantly minimized if the case were litigated in Northern California, and plaintiff would not face any material inconvenience by litigating in California rather than Arkansas; and 2) relative docket congestion could not override the several factors of convenience and justice that favor transfer.

As the court wrote:  "Apple moved, pursuant to 28 U.S.C. § 1404(a), to transfer venue to Northern California. Apple argued that its witnesses were located in California, that witnesses from nonparty companies and from Luxpro would be inconvenienced less by travel to California than to Arkansas, that litigious tactics of which Luxpro complained originated from Apple's California headquarters, that relevant documents were located in California, and that Arkansas had no connection to the dispute. For its part, Luxpro asserted that its choice of forum was entitled to deference, and that docket statistics showed that it would secure a trial more quickly in Western Arkansas. The district court denied Apple's transfer motion."

Related Resources

Civil Rights, Criminal and Employment Matters

In US v. Johnson, No. 09-1407, the court of appeals affirmed defendant's firearm possession conviction, on the ground that the lateness of the hour, the van blocking the alley with its engine running, a woman in the middle seat of the van putting on clothing, and defendant moving quickly from the middle seat to the driver seat and attempting to drive away upon arrival of the squad car, provided justification for an investigatory stop.  However, the court reversed defendant's sentence, holding that defendant's prior Minnesota conviction for fleeing a police officer in a motor vehicle did not qualify as a violent felony.

Zutz v. Nelson, No. 09-1462, concerned an action by members of the Middle-Snake-Tamarac Rivers Watershed District Board alleging state law defamation and violations of 42 U.S.C. section 1983 against other Board members and related persons.  The court of appeals affirmed, holding that 1) plaintiffs anchored their case against defendants on the same defamatory statements that formed the basis of a prior state-court action; and 2) the complaint did not adequately allege that defendants deprived plaintiffs of a constitutionally protected federal right.

Blankenship v. USA Truck, Inc., No. 09-1605, involved an action alleging that defendant owed plaintiff more than $1 million in unpaid sales commissions, and to invalidate a prior settlement agreement between the parties.  The court of appeals reversed the dismissal of the complaint, holding that the district court ignored governing precedent from the Arkansas Supreme Court when holding the no-reliance clause barred plaintiff's fraud claim.

In US v. Lopez-Mendoza, No. 09-2189, the Eighth Circuit affirmed defendant's drug possession conviction, holding that 1) an officer does not seize a person by asking for license and registration if he does not convey a message that compliance with his request is required; and 2) the officer did not exceed the scope of defendant's consent by reasonably searching the car for drugs.

Related Resources

Drug Conspiracy and Social Security Disability Benefits Cases

In US v. Lockett, No. 09-1322, the Eighth Circuit affirmed defendant's drug conspiracy conviction, holding that 1) a witness's testimony clearly demonstrated the existence of the agreement to distribute drugs, defendant's knowledge of the agreement, and defendant's participation in the agreement; 2) if residual prejudice survived the district court's curative instruction following an improper question by the government, that prejudice was harmless when compared to the substantial evidence of defendant's guilt; and 3) the government offered a race-neutral basis for striking a juror, and defendant did not show that the basis was a pretext for purposeful discrimination.

Dipple v. Astrue, No. 09-1717, concerned a petition for review of the denial of Social Security disability benefits.  The Eighth Circuit denied the petition, on the grounds that 1) the administrative law judge (ALJ) adequately considered a physician's report and explained her reasoning for disagreeing with the doctor's conclusions; and 2) an express credibility determination was not required because the ALJ did not reject petitioner's subjective complaints of pain, but rather discounted her account of her cognitive and social impairments.

Related Resources

Bankruptcy, Civil Rights, Criminal, and Tort Law Cases

Morris v. Zefferi, No. 08-3141, involved an action alleging that an officer violated plaintiff's constitutional rights when defendant transported plaintiff, who at the time was a pretrial detainee, in a dog cage in a K-9 vehicle during a ninety-minute drive to a county courthouse.  The court of appeals affirmed on the grounds that 1) based on the totality of the circumstances, defendant's decision to transport plaintiff in this manner transgressed today's broad and idealistic concepts of dignity, civilized standards, humanity, and decency; and 2) the unconstitutionality of defendant's alleged conduct should have been obvious to defendant based both on common sense and prior general case law.

Brunsting v. Lutsen Mountains Corp., No. 09-1075, concerned a personal injury action arising out of a skiing accident.  The court of appeals reversed summary judgment for defendant, holding that 1) the district court erred in its analysis of whether a witness's statement was made in reaction to a truly startling event, and whether the statement was made under the stress of excitement caused by that event; and 2) there was a genuine issue of material fact as to whether defendant's failure to remove the stump was a proximate cause of plaintiff's accident.

In US v. Akens, No. 09-1695, the Eighth Circuit affirmed defendant's drug and firearm conviction and sentence, on the grounds that 1) defendant's prior Missouri conviction was a sufficient predicate for his 18 U.S.C. section 922(g)(1) conviction; 2) the district court did not abuse its discretion in denying defendant's motion to withdraw the plea; and 3) defendant, in the plea agreement, waived his right to appeal sentencing-related issues.

Bremer Bank, N.A. v. John Hancock Life Ins. Co., No. 09-2250, involved an action alleging that, in the aftermath of an airline's bankruptcy filing, plaintiff's equity in an aircraft and lease were improperly extinguished by a bank, acting on defendant's instructions.  The Eighth Circuit affirmed summary judgment for defendant, holding that 1) the bank properly informed plaintiff that the lease of the aircraft was in default, as required by the lease agreement; 2) given the lease's expansive language, it was reasonable to consider as a remedy the 11 U.S.C. section 1110(b) stipulations requiring the airline to maintain the aircraft and to make monthly payments despite the bankruptcy stay.

In US v. Mohamed, No. 09-2349, the court of appeals affirmed defendant's conviction for conspiracy to commit mail fraud, on the ground that the indictment fully and fairly apprised defendant of the charges against him, despite the alleged variance, and therefore there was no actual prejudice.

Related Resources

Knutson v. Fargo, No. 08-1894

Knutson v. Fargo, No. 08-1894, involved an action arising out of flooding that occurred on plaintiffs' property.  The Eighth Circuit affirmed the dismissal of the complaint, holding that the district court was required to give preclusive effect to a prior state court judgment under the Full Faith and Credit Act.

As the court wrote:  "Douglas and Linda Knutson appeal from the order of the District Court dismissing without prejudice their 42 U.S.C. § 1983 suit against the City of Fargo, North Dakota.  On July 8, 2003, a cast-iron water main belonging to the City broke, flooding the Knutsons' property and damaging their house and yard. In August 2004, they filed suit against the City in state court seeking damages under state-law legal theories of inverse condemnation, intentional trespass, and negligence. The state district court granted the City's motion for summary judgment, and the North Dakota Supreme Court affirmed. Knutson v. City of Fargo, 714 N.W.2d 44 (N.D. 2006). The Knutsons did not file a petition for a writ of certiorari in the United States Supreme Court."

Related Resources

Agriculture and Criminal Matters

Syverson v. US Dept. of Agric., No. 08-3245, involved a petition for review of an order of the Department of Agriculture determining that petitioner had engaged in unfair and deceptive trade practices, and failed to keep sufficient accounts, records and memoranda of his business.  The Eighth Circuit affirmed in part on the ground that there was substantial evidence supporting the judicial officer's determination that petitioner was acting as a market agency, that is, selling on a "commission basis."  However, the court reversed in part on the ground that, where a five-year suspension, if it permanently forced petitioner from the industry, appeared to bear no relation to the remedial purposes of the Packers and Stockyards Act.

In US v. Jones, No. 09-1378, the court of appeals affirmed defendant's cocaine possession convictions, holding that 1) assessing witness credibility was the job of the jury and absent extraordinary circumstances the court would not review that assessment; 2) there was sufficient circumstantial evidence for the jury to conclude that defendant possessed with intent to distribute the cocaine; and 3) the district court did not clearly err in finding the government provided a race-neutral justification for its peremptory strikes.

Related Resources

Noe v. US, No. 08-2057

Noe v. US, No. 08-2057, involved habeas proceedings arising from a drug conspiracy conviction and sentence.  The court of appeals affirmed the denial of petitioner's habeas petition, on the grounds that 1) the district court's determination that defendant and his codefendant were represented by independent counsel was not clearly erroneous; 2) petitioner claimed that defense counsel's failure to pursue a split conspiracy defense or to "point the finger" at the codefendant established an actual conflict, but he did not show that these strategies were objectively reasonable; and 3) petitioner made a knowing, voluntary, and intelligent waiver of his right to conflict-free assistance of counsel.

As the court wrote:  "In 2003, Peter Noe was convicted by a jury of conspiracy to distribute
methamphetamine and conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(B), 846, and 851, and was sentenced to 480 months' imprisonment. His conviction and sentence were affirmed on direct appeal. United States v. Noe, 411 F.3d 878 (8th Cir. 2005). In 2007, Noe petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, arguing, in part, that he was denied his Sixth Amendment right to effective assistance of counsel. The district court denied Noe's petition and granted a certificate of appealability on the issue of whether trial counsel was ineffective because of dual representation or a conflict of interest. Noe appeals, arguing the district court erred in (1) determining that there was not joint representation, (2) finding that Noe waived his right to conflict-free representation,
(3) denying a habeas hearing, and (4) refusing to expand the certificate of appealability. We affirm."

Related Resources

Holman v. Comm'r of Internal Rev., No. 08-3774

Holman v. Comm'r of Internal Rev., No. 08-3774, concerned a petition for review of the tax court's order (1) holding that the IRS correctly applied I.R.C. section 2703 and properly disregarded petitioners' partnership agreement's transfer restrictions and (2) applying smaller lack-of-marketability and minority-interest discounts than those claimed by petitioners.  The court of appeals denied the petition, holding that 1) the tax court correctly held the present restrictions on the sale of the shares at issue were not "a bona fide business arrangement" in accordance with section 2703(b)(1); and 2) the tax court's approach in adopting an expert's analysis comported with the general rule of casting the potential buyer merely as a rational economic actor.

As the court wrote:  "Thomas H. Holman, Jr. and Kim D.L. Holman (the "donors") created a limited partnership, funded it with common stock of Dell, Inc., and gifted limited partnership shares to their children. In a gift-tax return, the donors asserted lack-of-marketability and minority-interest discounts to claim a value for the gifts substantially below the value of the underlying Dell stock. In doing so, the donors relied in part on transfer restrictions contained in the partnership agreement, asserting that the transfer restrictions would depress the value of the partnership shares relative to the value of the underlying assets."

Related Resources

Criminal and Immigration Matters

Lui v. Holder, No. 08-3651, concerned a petition for review of the BIA's order removing petitioners to Hong Kong, denying them relief from removal in the form of adjustment of status, and denying them the alternative relief of voluntary departure.  The court of appeals denied the petition, on the grounds that 1) petitioners did not argue that they qualify for any exception to the exhaustion requirement as to their argument that the Immigration Judge improperly considered certain documents; and 2) although it was improper for the BIA to determine that petitioner had no qualifying relative, there was no reason to remand the matter because the improperly found fact was extraneous.

In US v. Hernandez-Mendoza, No. 08-3899, the Eighth Circuit affirmed defendant's drug conspiracy convictions, on the grounds that 1) an officer who searched defendants' vehicle did not violate defendants' Fourth Amendment rights by extending the traffic stop to search their vehicle, because he had probable cause to believe there was contraband in the vehicle; 2) from the perspective of defendants, there was nothing so coercive about the officer's simple act of leaving them alone in the patrol car that would justify characterizing the officer's behavior as interrogation; and 3) the circumstantial evidence introduced at trial was sufficient to support the jury's findings of defendants' knowledge.

In US v. Winters, No. 09-1740, the court of appeals affirmed defendant's drug possession conviction, holding that 1) even assuming an arresting officer's report qualified as newly discovered evidence, it fell far short of being the kind of substantial evidence that would authorize the district court to disregard the law of the case; 2) a search of defendant's vehicle was constitutionally reasonable for two reasons: the totality of the circumstances provided probable cause to search, and there was reason to believe that evidence of the crime for which defendant was arrested might be found; and 3) the time from the filing of a defendant's motion to suppress until the conclusion of the appellate process directly attributable to that motion was properly excluded under article IV(a) of the Interstate Agreement on Detainers Act.

Related Resources

Employment and ERISA Matters

Helton v. Southland Racing Corp., No. 09-1674, concerned an action for employment discrimination and retaliation based on plaintiff's race.  The court of appeals affirmed summary judgment for defendant, holding that 1) the alleged verbal harassment creating a hostile work environment in this case was neither frequent nor severe; and 2) because plaintiff claimed only the materially adverse action of a constructive discharge as a basis for her retaliation claim, and because the court had held that she failed to offer sufficient evidence of a constructive discharge, she did not demonstrate a materially adverse action against her.

Schultz v. Windstream Comms., Inc., No. 09-2125, involved an action alleging that an amendment to defendant's pension plan violated ERISA, as well as federal and state age discrimination laws.  The Eighth Circuit affirmed summary judgment for defendant on the grounds that 1) the act of amending a pension plan did not trigger ERISA's fiduciary provisions; 2) plaintiffs lacked standing to challenge the amendment because, even if the court invalidated the amendment, plaintiffs would still receive benefits under the plan's early retirement provision; and 3) plaintiffs presented no evidence that the differential treatment in the plan was actually motivated by age.

Related Resources

In US v. Nguyen, No. 08-3791, the Eighth Circuit affirmed defendants' drug conspiracy convictions and sentences, holding that 1) defendants' plea agreement only permitted him to appeal an "unconstitutionally defective sentence," and defendant did not appeal on those grounds; 2) the government presented sufficient evidence to show that defendant knowingly participated in a marijuana conspiracy; and 3) the district court erred when it instructed the jury that conspiracy may constitute a predicate offense for a continuing criminal enterprise (CCE).  However, the court reversed in part the district court's forfeiture order, holding that there was no sufficient facilitation nexus between defendant's car and the CCE.

In US v. Burtton, No. 09-1380, the Eighth Circuit affirmed defendant's drug possession conviction, holding that defendant's commission of the "infraction" of possessing an open alcohol container in the presence of officers supplied the officers with probable cause to arrest defendant under the Fourth Amendment.

In US v. Rutherford, No. 09-1421, the court of appeals affirmed defendant's sentence for using interstate communications to transmit a threat, holding that 1) U.S.S.G. section 5G1.2 was not controlling, but advisory, and the district court had discretion to impose either consecutive or concurrent sentences under 18 U.S.C. section 3584; and 2) the district court properly considered the 18 U.S.C. section 3553(a) factors and, given the evidence, the district court's imposition of consecutive sentences was not an abuse of discretion.

Dodson v. Univ. of Arkansas for Med. Sci., No. 09-1659, involved an action claiming that a university's refusal to allow plaintiff control over the disposition of embryos created by plaintiff and her ex-husband violated her constitutional rights and breached an implied contract.  The court affirmed the dismissal of the action, holding that plaintiff's claims complained of injuries caused by state-court judgments rendered before the district court proceedings commenced, and thus the action was barred by the Rooker-Feldman doctrine.

Chorosevic v. MetLife Choices, No. 09-1880, concerned an ERISA class action alleging that defendants improperly calculated secondary health benefits owed to plaintiffs.  The Eighth Circuit affirmed summary judgment for defendants on the grounds that 1) plaintiffs failed to exhaust their remedies with defendant-insurer because they did not appeal or even reference the claims they filed in the present lawsuit; 2) defendants complied with "reasonable claims procedures" in denying benefits; and 3) plaintiff failed to show that demand would have been futile.

Halverson v. Astrue, No. 09-2076, involved petitioner's appeal from the district court's order affirming the decision of an administrative law judge (ALJ) denying her claim for disability insurance benefits under Title II of the Social Security Act.  The court of appeals affirmed, holding that 1) nearly all of petitioner's mental status examinations revealed no abnormalities or were inconsistent with her complaints; 2) the ALJ properly explained his bases for discounting the two reports suggesting petitioner would be unable to maintain consistent employment; and 3) based on the ALJ's evaluation of petitioner's daily activities, the objective medical evidence, and other inconsistencies in the record as a whole, the court would not disturb the ALJ's decision to discredit, in part, petitioner's subjective complaints.

Barzilay v. Barzilay, No. 09-2358, concerned plaintiff's appeal from the district court's dismissal of his petition under the International Child Abduction Remedies Act and the Hague Convention on the Civil Aspects of International Child Abduction, arising out of defendant's allegedly wrongful retention of their children.  The court of appeals affirmed, holding that the children's country of "habitual residence" within the meaning of the Hague Convention was the United States and their retention in Missouri was therefore not wrongful.

In US v. Small, No. 09-2769, the court of appeals affirmed defendant's armed bank robbery sentence, holding that 1) defendant's flight from a law enforcement officer that recklessly created a substantial risk of death or serious bodily injury to other persons justified a sentencing enhancement; and 2) the district court's denial of a downward departure was not reviewable.

Related Resources

Sinisterra v. US, No. 08-1925

Sinisterra v. US, No. 08-1925, concerned a capital murder prosecution, in which the district court denied defendant's motion to vacate, set aside, or correct his sentence under 28 U.S.C. section 2255.  The court of appeals affirmed in part, holding that 1) the prosecutor's closing remarks did not have the effect of diverting the jury from its role in weighing defendant's mitigation evidence; and 2) defendant failed to show that, had counsel objected to improper statements by the prosecutor, he would not have received the death sentence.  However, the court reversed in part where the record did not conclusively show that defendant's attorneys acted within the range of competence demanded of attorneys in criminal cases.

As the court wrote:  "German Sinisterra was convicted of murder, drug trafficking, traveling in interstate commerce with the intent to commit a murder for hire, and criminal forfeiture, and was sentenced to death. After his convictions and sentence were affirmed on appeal, United States v. Ortiz, 315 F.3d 873 (8th Cir. 2002), Sinisterra moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Sinisterra argued, among other things, that he had been denied his Sixth Amendment right to effective assistance of counsel during the penalty phase of his trial. The district court denied the motion without holding an evidentiary hearing, and Sinisterra appeals. We affirm in part, reverse in part, and remand for an evidentiary hearing."

Related Resources