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

June 2010 Archives

McCabe v. Parker, No. 09-1185, involved an action based on plaintiffs' arrest for trespass and subjection to a strip and visual body cavity search in the course of their protest at the 2004 Republican National Convention.  The court of appeals partially affirmed partial judgment for plaintiffs, holding that 1) the district court's evidentiary rulings were not abuses of discretion and did not  substantially impact the jury's answer to the probable cause inquiry; and 2) because an officer did not commit a constitutional violation in arresting plaintiffs, it necessarily followed that he could not be held liable for any damages arising from the unlawful searches that followed the arrests.  However, the court reversed in part on the ground that the district court failed to calculate how much a $75,000 award for an incident that occurred in 1978 would equal for an incident that occurred in 2004 after adjusting for inflation.

As the court wrote:  "Alice McCabe and Christine Nelson attended a 2004 Republican campaign rally in Cedar Rapids, Iowa, to protest President Bush's position on the Iraq war. After being arrested for trespass and subjected to a strip and visual body cavity search at the Linn County jail, McCabe and Nelson brought suit against several federal, state, and county officials alleging violations of the First and Fourth Amendments. Most of the claims were dismissed before trial. The case went to trial against one secret service agent on claims arising from the alleged unlawful arrests and against the county jailer who conducted the strip and visual body cavity searches."

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Progressive Ins. Co. v. McDonough, No. 09-2520, involved an action against an insurance company for policy proceeds arising out of a car accident.  The court affirmed summary judgment for defendant, holding that the criminal-act exclusion in the policy precluded recovery because the perpetrator pled guilty to intentionally hitting plaintiff with his car.

In US v. Cochrane, No. 09-2191, the court of appeals affirmed defendant's sentence for aiding and abetting the possession with intent to distribute methamphetamine, on the ground that, although the district court addressed defendant's objections at the sentencing hearing, the district court failed to put the burden on the government to prove defendant's disputed theft conviction, and the district court also failed to conduct an evidentiary hearing on the disputed theft conviction.

In US v. Mitchell, No. 09-3161, the court of appeals affirmed defendant's bankruptcy fraud sentence, holding that, in a complicated proceeding such as this, the district court must reasonably approximate the value of the assets that the defendant fraudulently sought to preserve.

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Drug Conspiracy Sentencing Issues, and other Criminal Matters

In US v. Robinson, No. 09-1925, the court of appeals vacated defendant's sentence for possession of a firearm as a previously convicted felon, holding that the district court clearly erred in finding that defendant had stipulated to the requisite knowledge, or reasonable cause to believe, that the person knocking on his door was an officer.

In US v. Adamson, No. 09-2185, the court affirmed defendants' convictions and sentences for conspiracy to distribute and possession with intent to distribute 500 grams or more of methamphetamine and five kilograms or more of cocaine, holding that 1) the district court properly considered the relevant conduct for which defendant was responsible in comparison to other members of the organization and did not commit clear error in its factual determination that defendant's role was not minor; 2) defendants were active, necessary, and well-compensated members of the conspiracy, and their roles as couriers did not necessarily entitle them to the minor role adjustment; 3) the presence of firearms in the garage where defendant received drugs and dispatched large sums of money to the west coast made the fact of his involvement in the drug conspiracy more probable and evidence of this was thus properly admitted; and 4) the district court did not clearly err in imposing a three-level enhancement for his role in the offense.

In US v. Shafer, No. 09-2309, the court of appeals affirmed defendant's drug conspiracy conviction, on the grounds that 1) a typical person would have understood the exchange between defendant and an officer to allow the officer to seize defendant's briefcase and its contents; 2) the denial of defendant's motion for a continuance did not prejudice him; and 3) a reasonable jury could conclude that defendant's Mercedes was purchased with the proceeds from his drug distribution.

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Thach v. Tiger Corp., No. 09-2940, involved a negligence, products liability, and breach of warranty action against the Japanese manufacturer of a rice cooker which allegedly caused a fire at plaintiffs' home.  The court of appeals affirmed judgment on the pleadings for defendant, holding that plaintiffs had failed to serve defendant within South Dakota's three-year statute of limitations, because delivery of plaintiffs' request for service to the Japanese Foreign Affairs Ministry on either December 7 or 19 did not toll the limitations period under S.D. Stat. 15-2-31 before its expiration on December 11, 2007.

Jones v. Nat'l. Am. Univ., No. 09-3007, concerned an action alleging that a university failed to promote plaintiff in violation of the Age Discrimination in Employment Act (ADEA).  The Eighth Circuit affirmed judgment for plaintiff on the grounds that 1) the district court did not abuse its discretion by concluding that certain witnesses' testimony was sufficient authentication to admit an exhibit; 2) plaintiff presented sufficient evidence for the jury to conclude that defendant's proffered reason for the failure to promote was a pretext for age discrimination; and 3) the district court properly instructed the jury on plaintiff's burden under her ADEA claim, including her burden to prove that defendant's proffered legitimate, nondiscriminatory reason for the failure to promote was pretext for age discrimination.

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Felon in Possession Sentence Affirmed

In US v. Pazour, No. 10-1456, the Eighth Circuit affirmed defendant's sentence for being a felon in possession of a firearm, holding that 1) defendant's claim of sentencing error was subject to reasonable dispute, and thus the district court did not commit plain error; and 2) the firearms possessed by defendant facilitated the theft at issue, and possession of the firearms was not accident or coincidence.

As the court wrote:  "A grand jury indicted Cory Pazour for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Pazour pleaded guilty to the offense as charged and the district court2 sentenced Pazour to 37 months imprisonment. On appeal, Pazour argues the district court erred in applying a two-level sentencing enhancement for possession of a stolen firearm, see U.S.S.G. 2K2.1(b)(4)(A), and a four-level sentencing enhancement for possession of a firearm in connection with another felony, see U.S.S.G. § 2K2.1(b)(6). We affirm."

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Kobus v. Coll. of St. Scholastica, No. 09-1583, concerned an action against plaintiff's former employer, alleging that his forced resignation interfered with or denied his rights under the Family Medical Leave Act (FMLA), and discriminated against him on account of disability in violation of the Americans with Disabilities Act (ADA), and the Minnesota Human Rights Act (MHRA).  The Eighth Circuit affirmed summary judgment for defendant, on the grounds that 1) no reasonable jury could find that defendant's FMLA documents were ambiguous in requiring a medical certification as part of an FMLA leave application; and 2) the record contains no specific evidence that plaintiff's limitations were apparent at work.

Ringwald v. Prudential Ins. Co. of Am., No. 09-1933, involved an action seeking long-term disability benefits under a plan governed by the Employee Retirement Income Security Act of 1974.  The court of appeals reversed summary judgment for defendant, on the ground that there were no terms in the plan that allowed it to be amended by inserting into the Summary Plan Description such critical provisions as the administrator's discretionary authority to interpret the plan or to determine eligibility for benefits.

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Fraud Action Under Minnesota Securities Act

Trooien v. Mansour, No. 09-2032, involved an action alleging violations of the Minnesota Securities Act, negligent and fraudulent misrepresentation, and breach of fiduciary duty.  The court of appeals affirmed summary judgment for defendants in part, on the grounds that 1) plaintiff's misrepresentation claims based on the company at issue's revenue projections were properly dismissed by the district court since they were not false statements of past or existing fact, and were not pled with sufficient particularity; and 2) the injuries alleged in plaintiff's breach of fiduciary duty claims were those to corporate assets, and a claim to recover damages for such injuries must be brought as a derivative action.  However, the court reversed in part, holding that claims arising under Minn. Stat. section 80A.01(b) required only a showing of negligence.

As the court wrote:  "Gerald Trooien brought this action against Peter Mansour and Barry Roitblat, former executive officers of Sproqit Technologies, Inc. (Sproqit), alleging violations of the Minnesota Securities Act (MSA), negligent and fraudulent misrepresentation, and breach of fiduciary duty, arising from Trooien's investment in Sproqit. The district court dismissed several of the securities and misrepresentation claims in Trooien's amended complaint for failure to plead with particularity, see Fed. R. Civ. P. 9(b), and granted summary judgment to Mansour and Roitblat on his remaining claims, see Fed. R. Civ. P. 56(c). Trooien appeals the dismissal and the adverse grant of summary judgment. We reverse in part and affirm in part."

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In US v. Nguyen, No. 08-3940, the court of appeals affirmed defendants' convictions and sentences for conspiracy to distribute and possess with the intent to distribute ecstasy, on the grounds that: 1) the parties' plea agreement did not contain an agreement not to prosecute other offenses; 2) venue was appropriate because there was no dispute that defendant's co-conspirator was in Iowa and committed acts in furtherance of the conspiracy there; 3) it was not clear error for the district court to find that defendant knowingly and voluntarily waived his rights and, as a result, the district court did not err when it denied a motion to suppress; and 4) in light of the evidence that the instant conspiracy involved a variety of pills, many of which were not available for chemical analysis, it was not error for the district court to use the Typical Weight Per Unit Table.

Evermann v. BNSF Rwy. Co., No. 09-1708, concerned action in state court seeking a declaratory judgment that section 25-1640 of the Nebraska Revised Statutes obligated defendant to reimburse plaintiff for "productivity shares" lost because of his service on a federal grand jury.  The court of appeals affirmed the district court's dismissal of the action and denial of plaintiff's motion to remand, on the ground that plaintiff's claim under Neb. Rev. Stat. section 25-1640 was preempted because his "alleged entitlement to productivity shares arises solely from the terms of the collective bargaining agreement," and interpretation of the CBA would be "certainly necessary" to resolve the claim.

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In US v. Greer, No. 09-1230, the court of appeals affirmed defendant's conviction and sentence for unlawful possession of a firearm as a previously convicted felon, on the grounds that 1) the district court properly found that, when an officer opened the door to the porch of defendant's house and stepped back, he impliedly invited the officers to enter; 2) there were several opportunities for defendant to pause and reflect, to decline consent, or to revoke consent, but he granted permission to search and never withdrew it; 3) a reasonable jury could find that defendant possessed the firearm; and 4) the district court did not err in finding that defendant qualified for an enhanced sentence under the Armed Career Criminal Act.

In US v. Mosley, No. 09-1648, the court of appeals affirmed defendant's conviction for unlawful possession of a firearm as a previously convicted felon, holding that the district court did not err by concluding that defendant essentially forfeited his right to represent himself by engaging in conduct that obstructed the proceedings against him.

In US v. Welsh, No. 09-2623, the court of appeals affirmed defendant's sentence for receiving and distributing child pornography and possessing child pornography, holding that 1) the district court committed no procedural sentencing error, made an individualized assessment of facts relevant to sentencing, considered the 18 U.S.C. section 3553(a) sentencing factors, and did not impose an unreasonable sentence; and 2) defendant's conditions of supervised release were limited to his ten-year period of supervised release.

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Davis v. Oregon County, No. 09-2700, concerned an action by a pretrial detainee at the Oregon County jail asserting that defendants violated his rights in failing to ensure his safety after a fire broke out at the jail.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) plaintiff's allegations regarding the correctional officers' disregard for the jail's smoking policy was contradicted by the undisputed facts in the record demonstrating the officers' sweeps for contraband as recently as five days before the fire; 2) the jail's inoperable sprinklers and lack of extra fire equipment such as oxygen tanks did not, standing alone, amount to deliberate indifference in light of the officers' actions in searching for contraband, as well as the fire extinguishers and smoke detectors that were present at the time of the fire; and 3) the conditions at the Oregon County jail were not so dangerous as to violate contemporary standards of decency.

In US v. MacInnis, No. 09-2710, the court of appeals affirmed defendant's sentence for possession of pseudoephedrine while knowing or having reasonable cause to believe it would be used to manufacture methamphetamine, on the grounds that 1) given the number and nature of defendant's unscored convictions, there was no error, plain or otherwise, in the district court's imposition of an upward departure; and 2) the court of appeals' careful review of the record and defendant's sentence revealed no abuse of the district court's considerable sentencing discretion and no basis for concluding defendant's within-Guidelines sentence was substantively unreasonable.

Kluesner v. Astrue, No. 09-2831, involved a petition for review of the Commissioner of Social Security's denial of petitioner's application for disability insurance benefits and supplemental security income.  The court of appeals denied the petition, on the grounds that 1) the medical records from the period that petitioner used marijuana were substantial evidence that his substance abuse was a contributing factor material to his disability; 2) the Administrative Law Judge's (ALJ) initial finding that petitioner's symptoms, regardless of cause, constituted disability did not preclude an ultimate finding that substance abuse was a contributing factor simply because petitioner was not abusing marijuana at the time of the hearing; and 3) the ALJ did not reject petitioner's testimony that he had stopped using marijuana, and in fact, he found that his substance abuse was "in remission."

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In US v. Miller, No. 09-1246, the court of appeals dismissed defendant's appeal from his sentence for conspiracy to possess with intent to distribute methylenedioxyamphetamine, holding that the preconditions of defendant's appeal waiver in his plea agreement were satisfied, and that the waiver should be enforced.

In US v. Jones, No. 09-1731, a prosecution for being a felon in possession of a firearm, the court of appeals affirmed the district court's order suppressing the firearm on the ground that the officer who performed the search at issue failed to comply with the mandate in Terry that there must be reasonable suspicion of on-going criminal activity justifying a stop before a coercive frisk may be constitutionally employed.

In US v. Howell, No. 09-2650, the court of appeals affirmed defendant's sentence for possessing a firearm after having been convicted of a felony, holding that the district court was aware of the advisory nature of the guidelines and that it utilized the Sentencing Guidelines cross reference for the limited purpose of first calculating an advisory guidelines range.

Griffis v. Anadarko E&P Co., No. 09-3117, involved an action to quiet title in certain natural gas rights.  The court of appeals affirmed judgment for defendants, holding that any deed of Arkansas mineral rights generally, executed at the time or after the deed in that case was executed, carried the rights to natural gas with it.

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Also, Decisions in Contract, Criminal and Property Matters

Trim Fit, LLC v. Dickey, No. 08-3711, involved an action for breach of a noncompetition agreement and unfair competition.  The court of appeals affirmed partial judgment for both parties, holding that 1) the district court did not abuse its discretion by denying the amendment of plaintiff's counterclaim; and 2) a party will not be granted relief that is not pled when it would unduly prejudice the opposing party.  However, the district court's denial of plaintiff's motion for attorney's fees is remanded where the district judge's ruling that there was no statutory basis for an award of attorney's fees was erroneous.

Usery v. Anadarko Petroleum Corp., No. 09-1113, concerned an action to quiet title to a mineral interest.  The Eighth Circuit reversed the denial of plaintiffs' motion to remand the action to state court, holding that defendants' evidence did not establish that the value of the mineral interest exceeded $75,000 and thus that diversity jurisdiction was proper.

In US v. Robertson, No. 09-1612, the court of appeals affirmed in part defendant's convictions for attempted aggravated sexual abuse and attempted abusive sexual contact in Indian country, holding that 1) the government proved that defendant had the intent to commit attempted aggravated sexual abuse; 2) nothing in the instructions permitted the jury to disregard the mens rea standard of specific intent; and 3) defendant did not meet his burden of showing that any improperly admitted hearsay statements prejudiced his substantial rights.  However, the court reversed in part, on the ground that abusive sexual contact (Count II) was a lesser-included offense of aggravated sexual abuse (Count I) and defendant's being convicted on both Counts I and II therefore violated the Fifth Amendment's prohibition against double jeopardy.

In Turnage v. Fabian, No. 09-1668, a murder prosecution, the court of appeals affirmed the dismissal of petitioner's habeas petition, on the grounds that 1) the petitioner was attempting to raise a new claim in federal court that he failed to present in state court; and 2) petitioner failed to demonstrate either cause and prejudice or a fundamental miscarriage of justice that would permit us to review his defaulted federal claim.

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Hernandez v. Holder, No. 08-2455, concerned a petition for rehearing of the Eighth Circuit's prior decision holding that the court lacked jurisdiction to review petitioner's challenge to BIA's denial of his request for continuance.  The Eighth Circuit denied the petition, holding that 1) because an Immigration Judge's discretion to deny a request for a continuance arose from a regulation, 8 C.F.R. section 1003.29, the court possessed jurisdiction to consider the denial of petitioner's motion for continuance under Kucana; but 2) there was no abuse of discretion in the BIA's determination that petitioner had not met the good cause-standard where, in light of the uncertainty as to when the long-pending repapering regulation would be promulgated, he was essentially seeking an indefinite continuance.

In US v. Mashek, No. 09-2058, the court of appeals affirmed defendant's conviction and sentence for attempting to manufacture methamphetamine, on the grounds that 1) the district court's findings of facts were not clearly erroneous and its determination that the affidavit in support of the search warrant at issue established probable cause for the issuance of the warrant was well-supported by the record; 2) the admission of certain pseudoephedrine logs did not violate defendant's constitutional confrontation rights; 3) defendant did not demonstrate a reasonable probability that but for a challenged instruction the result of the proceeding would have been different; and 4) the district court's determination that defendant committed perjury was not clearly erroneous.

Sitzes v. City of W. Memphis, No. 09-2090, involved an action alleging constitutional and state tort claims arising out of a traffic accident in which a police patrol car struck the car driven by plaintiffs' decedent.  The court of appeals affirmed summary judgment for defendant, on the ground that the intent-to-harm standard applied as a matter of law to the officer's conduct, and there was no evidence that the officer intended to harm the plaintiffs' decedent.

In US v. Bryant, No. 09-2532, the court of appeals affirmed defendant's mail fraud conviction and sentence, on the grounds that 1) defendant's misrepresentations influenced the intended victim, and were therefore material; 2) the district court recognized its authority to depart downward from defendant's Guidelines sentence; 3) there was no indication in the record that the district court relied upon defendant's socio-economic status during sentencing; and 4) the purpose of the Mandatory Victim Restitution Act was to restore the injured party, not to benefit the wrongdoer.

Thomsen v. Famous Dave's of Am., Inc., No. 09-2555, concerned an action alleging copyright infringement and breach of contract arising out of defendants' alleged misappropriation of plaintiff's restaurant designs.  The court of appeals affirmed summary judgment for defendants, on the ground that plaintiff unambiguously conveyed all contested copyrights to defendants by written contract.

Fesehaye v. Holder, No. 09-2799, involved a petition for review of the BIA's denial of petitioner's application for asylum, withholding of removal and protection under the Convention against Torture.  The court of appeals denied the petition, on the grounds that 1) even if the cumulation of petitioner's explanations could plausibly account for the significant inconsistencies in her asylum applications, the Immigration Judge (IJ) did not err by rejecting them; 2) the IJ gave an adequate explanation for the adverse credibility determination, that the determination was supported by substantial evidence, and that a reasonable adjudicator would not be compelled to reach a contrary conclusion.

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Froud v. Anadarko E&P Co., No. 10-8010, involved plaintiffs' request for permission to appeal from an order of the district court denying a motion to remand their class action.  The court of appeals denied the request, holding that, while full briefing of the merits may not be necessary to allow the court to exercise its discretion to permit the appeal under Fed. R. App. P. 5, petitioners did not provide any discussion of the merits or the nature or importance of the issues presented by their requested appeal.

As the court wrote:  "In order to accept a permissive appeal under 28 U.S.C. § 1453(c)(i) and Rule 5, this court must exercise its discretion. Petitioners have not provided us with a basis on which to exercise such discretion with regard to this appeal. Contrast Hart, 457 F.3d at 678 (granting permission so the court "could address the important question of which party has the burden of establishing jurisdiction when the home-state and local controversy provisions of CAFA are implicated"); Estate of Pew v. Cardarelli, 527 F.3d 25, 29 (2d Cir. 2008) (entertaining appeal "because the question of whether a state-law deceptive practices claim predicated on the sale of a security is removable under CAFA is important and consequential, and a decision of the question will alleviate uncertainty in the district courts").

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Also, Rulings in Attorney Discipline, Contract and Property Actions

Yankton Sioux Tribe v. US Army Corps of Eng'rs., No. 08-2255, involved an action by the Yankton Sioux Tribe challenging the validity of land transfers by the U.S. Army Corps of Engineers to the State of South Dakota.  The court of appeals affirmed summary judgment for defendant, holding that 1) the fee-patented lands at issue were outside the "external boundaries" of the reservation before they were acquired by the Corps; and 2) allotted lands still held in trust became lands "located outside the external boundaries" of the Reservation when fee simple title was acquired by the Corps for the Fort Randall Dam project.

Plouffe v. Ligon, No. 08-3996, concerned an action seeking to enjoin attorney disciplinary proceedings that defendant initiated against plaintiff.  The court of appeals affirmed the dismissal of the action, on the grounds that the district court properly abstained under Younger because 1) the disciplinary proceedings against plaintiff implicated important state interests; 2) the attorney disciplinary proceedings provided plaintiff an adequate opportunity to raise his constitutional claims; and 3) Arkansas Rule of Professional Conduct 8.4(e) was not "flagrantly and patently" unconstitutional "in whatever manner and against whomever an effort might be made to apply it."

Wells Dairy, Inc. v. Food Movers Int'l., Inc., No. 09-1628, involved a breach of contract action alleging that defendant failed to pay for product it had ordered and received from plaintiff.  The court of appeals affirmed judgment for plaintiff, on the ground that the district court had personal jurisdiction over defendant because defendant purposefully availed itself of the privilege of conducting activities within Iowa when it solicited an Iowa company for business, sought to purchase the Iowa company's products on credit provided by the Iowa company, negotiated and fulfilled the "customer pick up" delivery term, and entered into more than 100 transactions over the course of two years, during which it relied on the Iowa company for customer support.

Lackawanna Chapter of the Rwy. & Locomotive Historical Soc., Inc. v. St. Louis Cty., No. 09-2487, involved an action for replevin of the historic locomotive "No. 952," currently on display at the Museum of Transportation (the Museum) in St. Louis, Missouri.  The court of appeals affirmed summary judgment for defendant, on the ground that the statute of limitations barred the replevin action because undisputed evidence demonstrated that in 1995 and 1996 defendant took actions inconsistent with the bailment.

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Norman v. Union Pac. R.R. Co., No. 09-2651, concerned an action claiming that defendant terminated plaintiff based on race, gender, and a perceived disability.  The court of appeals affirmed summary judgment for defendant, holding that plaintiff's failure to submit a return-to-work release defeated her claim that her termination resulted from the designation of her disability as a mental illness.

In US v. Fronk, No. 09-2876, the court of appeals affirmed defendant's sentence for obtaining a controlled substance by fraud, on the grounds that 1) the district court was entitled to consider defendant's post-plea attempted procurement of unauthorized medications and the content of her letter to the court in determining whether she had clearly demonstrated acceptance of responsibility; and 2) the district court was aware of, and considered, her lack of a criminal history, her medical conditions, her letters of support, and the 18 U.S.C. section 3553(a) sentencing goals.

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