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

July 2010 Archives

Dodd v. US, No. 09-3345, involved defendant's appeal from the dismissal of his 28 U.S.C. section 2255 motion for post-conviction relief as untimely.  The court of appeals affirmed in part on the ground that most of the claims in defendant's amended motion did not arise from the same operative facts as the allegations made in the original motion.  However, the court reversed in part on the ground that the fact that defendant's amended motion identified the legal basis of the objectionable nature of certain testimony as being too speculative did not change its factual similarity to defendant's original motion.

Fercello v. Cty. of Ramsey, No. 09-2587, involved a retaliation action against a county, plaintiff's former employer, under Title VII.  The Eighth Circuit affirmed summary judgment for defendant on the grounds that 1) the actions taken by the county supposedly constituting a "functional demotion" were not materially adverse employment actions; 2) even if defendant's performance review constituted materially adverse employment action, a reasonable jury could not find that it was causally related to plaintiff's harassment report; and 3) plaintiff did not put forth evidence that the time-tracking procedures employed by defendant were implemented in any part because of plaintiff's harassment report.

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In US v. Golinveaux, No. 09-1959, the court of appeals affirmed defendant's conviction for being a felon in possession of seven rounds of .22 caliber ammunition while having been previously convicted of three or more violent felony offenses, on the grounds that 1) the district court did not clearly err in finding that defendant showed no signs of being under the influence and rejecting defendant's argument that she was likely under the influence at the time she gave consent to search; and 2) defendant was not so overcome by police authority or by an officer's persuasive powers as to make her consent involuntary.

Rote v. Titan Tire Corp., No. 09-2510, involved an ERISA action challenging defendant-employer's denial of long-term disability benefits.  The court of appeals affirmed judgment for plaintiff on the ground that the treating doctors' affirmative responses, when read in context, showed that the restrictions on plaintiff's working capacity were permanent, not temporary.  Moreover, the court affirmed the district court's attorney's fee award on the ground that defendant relied on a hypertechnical reading of the medical evidence and ignored the doctors' attempts to clarify their opinions.

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Mills v. City of Grand Forks, No. 09-2119, concerned a federal civil rights action under 42 U.S.C. section 1983 against the City of Grand Forks claiming that the City, in fining plaintiff for a traffic violation under a city ordinance, with the fine exceeding the amount of money authorized under North Dakota state law, violated various federal constitutional rights.  The court of appeals affirmed the dismissal of the complaint on the grounds that 1) even if the City in fact violated state law, a mere violation of a state law does not give rise to a federal due process violation; 2) based on plaintiff's own pleadings, it appeared that all drivers cited for careless driving received the same fine, and thus, the City treated similar offenders the same; and 3) plaintiff did not show that the City's fines were grossly disproportionate in a constitutional sense.

In US v. Carlson, No. 09-2119, the court of appeals affirmed defendant's conviction for conspiring to distribute and possessing with intent to distribute 500 grams or more of methamphetamine, holding that 1) the coercive aspects of a police interview were largely irrelevant to the custody determination except where a reasonable person would perceive the coercion as restricting his or her freedom to depart; 2) there were no exceptional circumstances warranting an evidentiary hearing regarding allegedly newly discovered evidence; and 3) to the extent defendant was raising ineffective assistance of counsel, such a claim should be pursued in a 28 U.S.C. section 2255 proceeding.

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Denial of Social Security Benefits Affirmed, and Criminal Matters

Brown v. Astrue, No. 08-3353, involved plaintiff's appeal from the district court's affirmance of an administrative law judge's (ALJ) denial of plaintiff's application for disability insurance benefits under Title II of the Social Security Act.  The court of appeals affirmed on the grounds that 1) the larger medical record did not support plaintiff's expert's conclusory opinion; 2) the ALJ committed no error in giving greater weight to a treating physician's testimony; and 3) substantial evidence on the record as a whole supported the ALJ's conclusion that plaintiff was not disabled.

In US v. Bates, No. 09-2933, the Eighth Circuit affirmed defendant's firearm possession sentence, holding that 1) in a previous opinion, the court of appeals made no "finding" on the amount of drugs or the type of drug activity in which defendant was engaged; and 2) the police's testimony established defendant's presence at a house and on a street known for drug trafficking.

In US v. Escobar-Quintanilla, No. 09-2162, the court of appeals affirmed defendant's sentence for conspiring to distribute and distributing methamphetamine and using a communication device to facilitate methamphetamine distribution, holding that 1) at sentencing, the district court explicitly found a drug quantity level of 34, rather than level 36 as urged by the government; and 2) the court did not clearly err in imposing a four level role-in-the-offense increase.

In US v. Horton, No. 09-3032, the court of appeals affirmed defendant's conviction for possession of a firearm as a felon, holding that 1) the district court did not err in finding that police had reasonable, articulable suspicion to justify the initial stop at issue; 2) the district court properly found that police did not exceed the scope of the Terry stop by conducting a protective frisk for weapons; and 3) there was sufficient suspicion to justify the expansion of the investigation.

In US v. Lynch, No. 09-3315, the court of appeals affirmed defendant's sentence upon the revocation of his supervised release, on the grounds that the district court properly held that defendant committed first-degree harassment under Iowa law, which constituted a Grade A violation of supervised release.

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Eyeblaster, Inc. v. Fed. Ins. Co., No. 08-3640, involved an action arising out of defendant's denial of coverage under two insurance policies.  The court of appeals reversed summary judgment for defendant on the grounds that 1) defendant failed to meet its burden to prove that the "sudden and accidental physical injury" exclusion in the policy applied; and 2) defendant owed a duty to plaintiff under its Errors or Omissions policy.

In re: Burival, No. 09-2483, concerned debtors' appeal from the bankruptcy appellate panel's (BAP) reversal of the bankruptcy court's order partially granting a creditor's claim for an administrative expense.  The court of appeals affirmed the BAP's order on the ground that 11 U.S.C. section 365(d)(3) unambiguously provided that a debtor must perform a rent obligation in full, until a lease is rejected.

In US v. Ross, No. 09-3879, the court of appeals affirmed defendant's sentence for conspiracy to distribute fifty grams or more of cocaine base, on the ground that defendant's 1994 conviction for attempted burglary is a felony conviction for a "crime of violence" under the guidelines, and the district court properly classified defendant as a career offender.

In US v. Morse, No. 08-3425, the Eighth Circuit affirmed defendant's conviction and sentence for filing false tax documents, on the grounds that 1) the district court did not err in denying defendant's motion to dismiss the indictment based on the doctrine of judicial estoppel; 2) defendant's due process rights were not violated because he was not subject to contradictory prosecution; and 3) good cause existed to keep the indictment sealed.

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In US v. Iron Hawk, No. 09-3081, the court of appeals affirmed defendant's conviction for assault resulting in serious bodily injury to a child, holding that 1) the lack of direct evidence demonstrating that defendant assaulted the victim was not dispositive; 2) the testimony from the medical professionals presented by the government provided a sufficient basis for the jury to conclude that the victim's serious injuries were caused by defendant; and 3) even if one doctor's testimony was not admissible, the error was harmless.

John T. Jones Const. Co. v. Hoot Gen'l. Const. Co., No. 09-1493, involved an application for breach of a general contract.  The court of appeals affirmed judgment for plaintiff on the grounds that 1) the parol evidence rule had no application to the issue of contract formation; 2) it was not unreasonable, based on the evidence, for the district court to conclude defendant intended to be bound under the assumption the risk of rejection was negligible; and 3) the district court's determination that the damages at issue arose from a weather delay, and not from the dispute over the subcontract, was supported by substantial evidence.

In US v. Jones, No. 09-2945, the court of appeals affirmed defendants' sentences for possession of a sawed-off shotgun, and possession of a firearm with an obliterated serial number, holding that 1) the district court did not abuse its discretion in considering criminal history not accounted for in defendant's criminal history category; 2) conduct resulting in an enhancement for obstruction of justice indicated that the defendant has not accepted responsibility for his criminal conduct; and 3) the nature of the crime and its effect on the victims justified strong punishment.

In US v. McCraney, No. 09-1943, the court of appeals affirmed defendants' convictions and sentences for possession of cocaine base with intent to distribute, robbery in violation of the Hobbs Act, and possession of a firearm in furtherance of a drug trafficking crime, on the grounds that 1) the district court did not abuse its discretion in ruling that defendant's statement was not sufficiently trustworthy to be admitted into evidence under Fed. R. Evid. 807.3; 2) the jury could reasonably choose to credit a witness's testimony despite his checkered background and potential bias; 3) a reasonable jury could find that defendant constructively possessed the firearm at issue during the getaway; and 4) the district court's refusal to group the charges together did not result in double counting.

In US v. Rodriguez, No. 09-2347, the court of appeals affirmed defendant's conviction and sentence for being a felon in possession of a firearm, on the grounds that 1) the district court did not abuse its discretion in denying substitution of counsel; 2) the prosecutor's closing remarks were neither misleading nor inflammatory; and 3) 18 U.S.C. section 922(g) did not contain a time limit for predicate offenses, and Congress would have included a time limit had it wanted to do so.

In US v. Waddle, No. 09-3607, the court of appeals affirmed defendant's conviction for failing to register under the Sex Offender Registration and Notification Act (SORNA), on the grounds that 1) 18 U.S.C. section 2250 did not punish a defendant for previously having been convicted of a sex crime, but rather punished convicted sex offenders who traveled in interstate commerce after the enactment of SORNA and who failed to register as required by SORNA; 2) Congress did not exceed its authority under the Commerce Clause in enacting SORNA; and 3) private parties acting in an individual capacity, such as defendant, did not have standing to assert that SORNA violated the Tenth Amendment by commandeering state officials to administer federal law.

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In US v. Garcia, No. 09-2281, the court of appeals affirmed conviction for possession with intent to distribute marijuana, holding that 1) the arresting officer did not transform a routine stop into an investigative detention; and 2) because the initial stop was not unconstitutionally prolonged, and defendant consented to the post-stop encounter, the court need not consider whether the officer also had reasonable suspicion to prolong the stop.

In Hirman v. US, No. 09-3065, the court of appeals affirmed defendant's sentence for manufacturing marijuana plants, on the grounds that 1) defendant was previously convicted of crimes that were punishable by imprisonment for a term exceeding one year, thereby exposing him to an enhanced sentence; and 2) the determination of whether defendant has two prior felony convictions for purposes of U.S.S.G. section 4B1.1 was a question of federal law, and thus did not affect defendant's prior state conviction.

Medicine Shoppe Int'l., Inc. v. Turner Invs., Inc., No. 09-2179, involved an appeal from an arbitral award in an action alleging a violation of a franchise agreement.  The Eighth Circuit affirmed the confirmation of the award on the ground that defendants did not allege any corruption, fraud, impartiality or an abuse of power--the grounds recognized by the Federal Arbitration Act for vacating an award.

Sensient Techs. Corp. v. SensoryEffects Flavor Co., No. 09-2686, concerned a trademark infringement action.  The Eighth Circuit affirmed summary judgment for defendant on the grounds that 1) plaintiff failed to show evidence of any sale or transport of any goods bearing the allegedly infringed mark; 2) no reasonable jury could find a likelihood of confusion between the two competing marks; and 3) plaintiff's Missouri law claim failed because the marks were not sufficiently similar under the "sight, sound, and meaning" test.

In US v. McCarty, No. 09-2977, the court of appeals affirmed defendant's conviction for possession of a controlled substance with the intent to distribute, on the grounds that 1) an arresting officer's suspicion was reasonably warranted and he was justified in expanding the traffic stop to ask defendant about the presence of drugs in the car; and 2) it was permissible for the officer to ask defendant basic investigatory questions at the time of the traffic stop and to expand the scope of these questions in light of his reasonable suspicions; and 3) defendant's plea agreement included a waiver of his right to appeal any non-jurisdictional issues.

In US v. Simons, No. 09-2142, the court of appeals affirmed in part defendant's sentence for failing to register as required by the Sex Offender Registration and Notification Act (SORNA), on the grounds that ) the court questioned whether defendant's self-reported manic-depressive disorder, coupled with an application to revoke his suspended sentence in Oklahoma due, at least in part, to dishonesty about his alcohol use, was sufficient to justify a 20-year ban on using or possessing alcohol, but even assuming the district court erred in imposing this special condition, it did not rise to the level of plain error; and 2) given the defendant's history of sexually abusing minors, and the fact that he could get permission from his probation officer to come within 500 feet of places used primarily by children, the prohibition on coming within 500 feet of a playground was proper.  However, the court of appeals reversed in part on the ground that the district court's prohibition on possessing any material that depicted nudity was overbroad.

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In US v. Young, No. 09-3536, the court of appeals affirmed defendant's conviction and sentence for attempting to entice a minor to engage in sexual activity, holding that 1) the evidence supported defendant's jury conviction for attempted enticement of a minor as a reasonable jury could find defendant guilty beyond a reasonable doubt; 2) a defendant cannot abandon an attempt once it has been completed; 3) even had defendant established that the government induced his criminal conduct, defendant was predisposed to commit the crime; and 4) because defendant told the fictitious victim that he was not married, although in reality, he had a wife and three children, a two-level enhancement for misrepresentation of identity was appropriate.

In US v. Samuels, No. 09-3244, the court of appeals affirmed defendant's convictions for two counts of distribution of cocaine base and one count of possession of more than fifty grams of cocaine base with the intent to distribute, on the grounds that 1) the government presented substantial evidence to corroborate the testimony of informant witnesses; and 2) prior felony drug convictions are relevant to show intent and knowledge in a drug prosecution when a defendant makes a general denial defense, which necessarily places the defendant's state of mind at issue.

In US v. Winston, No. 09-3004, a prosecution for conspiracy with intent to distribute 50 grams or more of crack cocaine, the Eighth Circuit affirmed the denial of defendant's motion to reconsider the denial of his motion to reduce his sentence, on the grounds that 1) proceedings under 18 U.S.C. section 3582(c)(2) do not implicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt; and 2) in Kimbrough v. United States, 552 U.S. 85, 91 (2007), the Supreme Court held that a district court may vary from the advisory sentencing guidelines range based solely on the basis of a disagreement with the extent of the crack/powder disparity, but it did not eliminate the disparity altogether nor require a district court to vary from the advisory sentencing guidelines based on the disparity.

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In US v. Jandreau, No. 09-2839, the court of appeals affirmed defendant's conviction for engaging in a sexual act with a minor, holding that the government was entitled to prove up its case with relevant evidence, which included the paternity evidence at issue, and the district court did not abuse its discretion in admitting it.

Frevert v. Ford Motor Co., No. 09-2531, involved an action against Ford Motor Company alleging wrongful discharge under the Missouri common law public policy exception to the employment at-will doctrine.  The court of appeals affirmed summary judgment for defendant, holding that plaintiff's complaint never alleged a violation of a specific legal provision and whether such legal provision involved a clear mandate of public policy, and plaintiff's belated affidavit discussing alleged violations of law directly contradicted both his complaint and interrogatories.

Langford v. Norris, No. 09-1862, concerned an action by inmates under 42 U.S.C. section 1983 against various defendants, including several current and former Arkansas Department of Correction officials, the company that provides medical services in Arkansas prisons, and a prison doctor, alleging that defendants violated the Eighth Amendment by acting with deliberate indifference to their serious medical needs.  The court partially affirmed the denial of summary judgment to certain defendants, holding that 1) there was no evident basis for finding that the issues presented in the medical defendants' appeal qualified as inextricably intertwined with the relevant collateral claim; 2) if defendant knew that plaintiff's serious medical needs were not being adequately treated, yet remained indifferent, he may be held personally liable.  However, the court reversed in part on the ground that plaintiffs' state law claims failed because a bare allegation of willful and wanton conduct would not suffice to prove malice.

Sun Bear v. US, No. 09-2992, concerned defendant's appeal from the district court's dismissal of his motion to vacate his sentence pursuant to 28 U.S.C. section 2255.  The court of appeals reversed, holding that defendant's Utah conviction for attempted theft of a vehicle did not qualify as a crime of violence, and therefore, in light of Begay, the sentencing court erred by applying the career offender sentencing guideline.

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In Burton v. Fabian, No. 09-2137, a prosecution for criminal sexual conduct, aggravated robbery, burglary, and related crimes, the court of appeals affirmed the denial of petitioner's habeas petition, holding that petitioner was not permitted to collaterally attack his sentence based on Cunningham v. California, 549 U.S. 270 (2007).

In US v. Asset Based Res. Group, No. 09-2548, a challenge to the district court's approval of a foreclosure agreement in a receivership proceeding, the court of appeals dismissed a creditor's appeal from the order, holding that, because the creditor did not move to stay the sale pending appeal, the appeal was moot.

In US v. Finley, No. 09-3159, the court of appeals affirmed defendant's convictions for possession of child pornography and receipt and distribution of child pornography, holding that, from the record, the court was not left with the definite and firm conviction that a mistake was committed in the search warrant at issue.

In US v. Midkiff, No. 08-3493, the Eighth Circuit affirmed defendant's convictions for conspiracy, mail and wire fraud, and failure to file tax returns, holding that 1) tax charges may be joined with fraud charges if the unreported income arises solely and directly out of the fraudulent scheme; 2) although "prior bad acts" testimony about defendant's prior ventures should not have been admitted, the error was harmless; and 3) the district court properly calculated the guidelines range and recognized that the guidelines were advisory.

In US v. Ruiz-Chavez, No. 09-3397, the Eighth Circuit affirmed defendant's convictions for conspiracy to possess with intent to distribute methamphetamine and possession with intent to distribute methamphetamine, on the grounds that 1) defendant's arrest occurred during the charged conspiracy, and the circumstances of the arrest were relevant to prove the existence of the conspiracy, and thus evidence of the arrest was properly admitted; 2) defendant failed to show that the testimony was particularly likely to confuse, distract, or inflame the jury; and 3) Fed. R. Evid. 404(b) did not apply to the testimony because the conduct in question was intrinsic to the charged drug conspiracy.

In US v. Sistrunk, No. 08-3732, the court of appeals affirmed defendant's sentence following the revocation of his supervised release, on the grounds that 1) the petition for revocation of supervised release provided extensive factual allegations that were sufficient to put defendant on notice that he would have to defend against crimes of fraudulently obtaining state identification cards and a credit card; and 2) because the court found no error with the district court's determination that Sistrunk violated Minnesota Statute section 609.527, it was unnecessary to review whether he violated any of the other statutes at issue.

In US v. West, No. 09-3467, the Eighth Circuit affirmed defendant's convictions and sentence for conspiring to distribute cocaine base, and possessing cocaine base with intent to distribute, on the grounds that 1) probable cause existed for the stop, and thus the district court properly denied defendant's motion to suppress; 2) there was a sufficient connection between the gun and the drug conspiracy to support a firearm enhancement; and 3) defendant explained adequately its decision to impose a within-Guidelines sentence.

In Vossen v. Astrue, No. 09-1985, an action challenging an administrative law judge's (ALJ) determination that plaintiff was ineligible for social security disability benefits, the court affirmed on the ground that the opinions of non-treating practitioners who attempted to evaluate the claimant without examination did not normally constitute substantial evidence on the record as a whole.

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Adam v. Stonebridge Life Ins. Co., No. 09-3014, involved an action against a life insurer alleging breach of contract and bad faith after defendant rescinded an insurance policy and denied plaintiff's claim for benefits.  The court of appeals affirmed summary judgment for defendants on the grounds that 1) regardless of whether the contract explicitly stated that preexisting conditions will be considered, as a matter of the plain language of the contract, law and logic, plaintiff's false answer to a question was material; 2) defendant justifiably relied upon plaintiff's assertion that he had not been treated for a mental health issue within five years of his application for life insurance; and 3) a material misrepresentation on the insurance application was a reasonable basis for denial.

Lang v. Soc. Sec. Admin, No. 09-1927, concerned a garnishment action brought by appellant in Minnesota state court against the Social Security Administration.  The court of appeals reversed the dismissal of the action on the ground that the government's removal was untimely whether the clock started to run when the initial garnishment summons was served or when the supplemental complaint was served.

In Langella v. Anderson, No. 09-3024, a prosecution for various organized crime-related offenses, the court of appeals affirmed the dismissal of petitioner's habeas petition, on the ground that the court of appeals did not have jurisdiction to review the Parole Commission's substantive decisions and petitioner's claims are based on his disagreement with the Parole Commission's subjective appraisal of disputed facts.

Lesch v. US, No. 09-1968, concerned an action seeking damages resulting from a car accident against the driver of the car that struck her vehicle, as well as the U.S. as a result of the actions of an FBI agent.  Th court of appeals affirmed judgment for plaintiff with respect to the driver, but against plaintiff with respect to the U.S., holding that 1) because the agent's testimony was neither incoherent nor facially implausible, the district court's findings based upon its decision to credit that testimony were not clearly erroneous; 2) no fault needed to be assigned to a non-negligent party; and 3) the court was not convinced that there were any proven losses for which the district court did not account.

In Williams v. Norris, No. 09-1062, a capital habeas matter, the court of appeals affirmed the denial of petitioner's habeas petition, on the grounds that 1) where the offered evidence of mitigation has nothing to do with a criminal's character, record, background, condition, or the circumstances of the crime, it is not relevant on the issue of punishment; 2) petitioner failed to show that there was a reasonable probability that allegedly improper testimony affected his sentence, and that absent the testimony, the sentence would have been different; and 3) petitioner failed to show that his counsel was deficient in failing to strike a prospective juror for cause, and that her inclusion on the jury resulted in an unfair trial.

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Methamphetamine Conviction and Sentence Affirmed

In US v. Moran, No. 09-2519, the Eighth Circuit affirmed defendant's conviction and sentence for conspiracy to distribute at least fifty grams of actual methamphetamine, on the grounds that 1) the government produced sufficient evidence to support defendant's conviction; 2) even if the police were aware of defendant's earlier felony convictions, this awareness did not require that they cease their investigation; and 3) defendant's mandatory sentence of life imprisonment did not violate the Eighth Amendment's prohibition on cruel and unusual punishment.

As the court wrote:  "Rodger Lee Moran was convicted by a jury of conspiracy to distribute at least fifty grams of actual methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(viii), and sentenced to life imprisonment. Moran brings this appeal, arguing that (1) the evidence was insufficient to support his conviction; (2) the district court erred in concluding that sentencing manipulation did not occur; and (3) his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment."

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Carton v. Gen'l. Motors Acceptance Corp., No. 09-2906, involved an action against defendant arising out of injuries plaintiffs sustained when they were struck by a leased vehicle on which defendant held the lease.  The court of appeals affirmed the dismissal of the action on the grounds that 1) because Iowa law applied to plaintiffs' claims, and Iowa law did not impose a $50,000 damages cap on plaintiffs' claim, diversity jurisdiction existed; 2) absent any direct negligence or criminal wrongdoing by defendant, the Graves Amendment protected defendant from owner liability during the period of the lease; and 3) the driver's financial irresponsibility and failure to obtain insurance did not pose an unreasonable risk of physical harm to others.

In Theus v. US, No. 09-1015, the court of appeals vacated defendant's sentence for conspiracy to distribute or possess with intent to distribute five kilograms or more of a mixture or substance containing cocaine, on the ground that defendant suffered prejudice as a result of his counsel's failure to raise either in the district court or on direct appeal the district court's error in imposing a ten-year mandatory minimum sentence for a quantity of cocaine that required only a five-year minimum sentence.

In US v. Bertling, No. 09-1027, the Eighth Circuit vacated defendants' sentences for endeavoring to influence, obstruct, or impede the due administration of justice by murdering or otherwise intimidating witnesses, holding that the district court's findings contradicted the jury's verdict and contravened the court's prior decision.

In US v. Forrest, No. 09-3279, the court of appeals affirmed defendant's sentence for being a felon in possession of a firearm in violation of 18 U.S.C. section 922(g)(1), on the grounds that 1) the elements of the Colorado felony menacing offense "in the ordinary case" easily satisfy the requirement of violent force; 2) defendant's prior robbery offense constituted a violent felony conviction; and 3) defendant's 2004 Kansas conviction for attempted burglary was a violent felony conviction.

In US v. Sweeney, No. 09-1759, the Eighth Circuit affirmed defendants' convictions and sentences for manufacturing and distributing cable descramblers intended for unauthorized interception of cable signals and conspiracy to do so, on the grounds that 1) the government's evidence was sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that defendants intended that the descramblers and authorization control devices defendants manufactured and sold be used for the unauthorized interception of cable signals and that defendants therefore violated 47 U.S.C. section 553; 2) there was sufficient evidence for a jury to conclude that defendants entered a conspiratorial agreement with the illegal purpose of assisting in the unauthorized interception of cable signals; and 3) it was perfectly reasonable to infer that the majority of defendants' descramblers were in fact used to steal cable programming.

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Assault With A Deadly Weapon Conviction Affirmed

In US v. Erickson, No. 09-1818, the court of appeals affirmed defendant's convictions for assault with a dangerous weapon and assault resulting in serious bodily injury, holding that 1) any error in admitting an excited utterance was harmless given the overwhelming evidence against defendant; and 2) given the similarities between the offenses and their spacial and temporal proximity to one another, as well as the presumption in favor of the efficiency achieved through joinder, the offenses were properly joined.

As the court wrote:  "Robert L. Erickson was charged with multiple counts of assault with a dangerous weapon and assault resulting in serious bodily injury, in violation of 18 U.S.C. § 1153. Erickson was convicted and he now appeals, arguing that the district court erred in admitting hearsay testimony and in denying his motion to sever one of the assault charges. We affirm."

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Eng v. Cummings, McClorey, Davis & Acho, No. 09-2426, concerned a declaratory judgment action against a law firm seeking a judgment that plaintiff firm need not share a portion of the attorney's fees awarded to plaintiff in a personal injury action.  The court of appeals affirmed summary judgment for plaintiff on the ground that, even assuming there was a fee-splitting agreement between the parties, this agreement did not comply with Mo. Sup. Ct. R. 4-1.5(e).

Gillette v. N. Dakota Disciplinary Bd., No. 09-1598, involved an action seeking declaratory and injunctive relief preventing an attorney disciplinary board from prosecuting a disciplinary action for alleged misconduct arising out of plaintiff's representation of Native American clients in tribal court litigation.  The court of appeals affirmed the dismissal of the action on the grounds that the three prerequisites to Younger abstention were present in this case -- (1) an ongoing state judicial proceeding that (2) implicates an important state interest and (3) affords an adequate opportunity to raise federal statutory and constitutional challenges.

In re: Polaroid Corp., No. 09-2860, concerned a creditor's appeal of the bankruptcy court's approval of the debtor's sale, free and clear of any liens, of its assets.  The Second Circuit dismissed the appeal on the ground that no party obtained a stay of the sale pending appeal, and thus the appeal was moot.

True v. State of Neb., No. 09-1788, involved an action challenging the termination of plaintiff's employment at a Nebraska correctional facility because he refused to allow a random, suspicionless search of his vehicle.  The court of appeals affirmed summary judgment for defendants in part, on the ground that, even assuming that employees parking in the lot at issue were similarly situated to visitors parking there, differential treatment of the two groups was, however, rationally related to a legitimate state interest.  However, the court reversed in part, holding that there was a dispute as to the circumstances of inmate access to vehicles in the lot at issue -- facts material to the reasonableness of the search at its inception.

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Firearm Possession Sentence Affirmed, and Other Criminal Matter

In US v. Ayala, No. 09-2123, the court of appeals affirmed defendant's sentence for possession of stolen firearms and being a domestic abuser in possession of firearms, holding that 1) the  firearm possession offense was a different type of crime from the theft offense; 2) defendant did not show that the sentencing court clearly erred in finding that he possessed between three and five firearms; and 3) the court considered the parties' arguments and had a reasoned basis for its sentence.

In US v. Jackson, No. 09-2814, the Eighth Circuit affirmed defendant's convictions for possession of crack cocaine and marijuana with the intent to distribute, conspiracy to possess crack cocaine, powder cocaine, and marijuana with the intent to distribute, and possession of a firearm in furtherance of these drug crimes, holding that 1) there was evidence that defendant lived at the house, dealt drugs there, and that his personal belongings were in the rooms where the agents found drugs and drugs paraphernalia; and 2) a reasonable jury could find beyond a reasonable doubt that defendant and a co-conspirator had an agreement to possess the drugs with the intent to distribute, that defendant voluntarily and intentionally joined the agreement, and that he knew its essential purpose.

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Attorney's Process & Investigation Servs., Inc. v. Sac & Fox Tribe of the Miss. in Iowa, No. 09-2605, involved an action seeking a declaratory judgment that an Indian tribal court lacked jurisdiction and an order compelling arbitration.  The court of appeals affirmed summary judgment for defendant in part on the ground that the tribal courts could exercise adjudicatory jurisdiction over the tribe's claims against plaintiff for trespass to land, trespass to chattels, and conversion of tribal trade secrets.  However, the court reversed in part, holding that the tribal court did not have jurisdiction under the second Montana exception over the tribe's claim for conversion of tribal funds.

Orr v. Larkins, No. 08-3857, concerned an action claiming that prison officials violated plaintiff's rights under the Due Process Clause of the Fourteenth Amendment, and under the Eighth Amendment, by keeping him in administrative segregation for about nine months following his third "dirty" urine test.  The court of appeals affirmed the dismissal of the complaint, on the ground that a demotion to administrative segregation, even without cause,
was not itself an atypical and significant hardship.

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Cravens v. Smith, No. 09-1924, involved an action raising a claim for indemnification from defendants for a judgment incurred by plaintiff in a separate lawsuit brought by a patient allegedly harmed by the negligence of plaintiff.  The court of appeals affirmed judgment for defendant, on the grounds that 1) plaintiff failed to identify any contractual language specifying that defendants had a duty to defend plaintiff; 2) any decision not to admit evidence of whether defendants were bound by the underlying judgment was harmless, as the record contained other evidence of prejudice; and 3) the district court did not abuse its discretion in striking a venireperson.

In US v. Scott, No. 09-2577, the Eighth Circuit affirmed defendant's drug conspiracy conviction and sentence, on the grounds that 1) the court declines to extend the holding in Kyllo v. United States, 533 U.S. 27 (2001), to encompass dog sniffs; 2) there is no general constitutional right to discovery in a criminal case; and 3) defendant's life sentence was constitutional under the Eighth Amendment.

In US v. Swanson, No. 09-3452, the Eighth Circuit affirmed defendant's firearm possession sentence, holding that 1) the district court applied the proper standard, explicitly finding that defendant's possession of the firearm in the car either facilitated or had the potential to facilitate his possession of the PCP at issue; and 2) the government proved the vial recovered by the police actually contained PCP, and therefore the district court properly enhanced defendant's sentence.

Wisbey v. City of Lincoln, No. 09-2100, concerned an action by an emergency dispatcher against her former municipal employer for violations of the Americans with Disabilities Act and the Family Medical Leave Act.  The court of appeals affirmed summary judgment for defendants, holding that 1) the nature of plaintiff's position supported defendant's claim that the fitness-for-duty exam was a business necessity; and 2) defendant did not retaliate against plaintiff in violation of the FMLA.

Related Resources

  • Full Text of Cravens v. Smith, No. 09-1924
  • Full Text of US v. Scott, No. 09-2577
  • Full Text of US v. Swanson, No. 09-3452
  • Full Text of Wisbey v. City of Lincoln, No. 09-2100

Ray v. Am. Airlines, Inc., No. 09-2317, concerned a purported class action lawsuit against American Airlines alleging claims for false imprisonment and negligence arising from a nine hour tarmac delay.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) plaintiff failed to present sufficient evidence to show that her detention on American's plane was "without authority of law"; and 2) plaintiff's allegations of an upset stomach and mild claustrophobia did not rise to the level necessary to support a negligence claim under Texas law.

Lathrop R-II Sch. Dist. v. Gray, No. 09-3428, involved plaintiff's appeal from the district court's reversal of the decision of an administrative panel in an Individuals with Disabilities in Education Act (IDEA) action.  The court of appeals affirmed, holding that 1) since plaintiff's son's individualized education plans (IEPs) did contain detailed behavioral interventions, and the IDEA did not require behavioral improvement, the panel erred in basing its conclusion on behavioral deficiencies; and 2) even if there were a technical violation regarding the requirement to schedule a meeting at a "mutually agreed upon" location, 34 C.F.R. section 300.345(a)(2), it did not affect the IEPs or otherwise deprive the child of educational benefit.

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Crack Distribution Sentence Affirmed, and Other Criminal Matter

In US v. Castellanos, No. 09-1456, a prosecution for conspiracy to distribute 500 grams or more of methamphetamine, the Eighth Circuit affirmed the denial of defendant's motion to suppress, holding that 1) the government did not raise a new "issue" on remand when it argued the evidence was admissible under the independent source doctrine, but merely formulated a new argument in support of the position maintained by the government in each proceeding; and 2) the district court did not err in relying upon the independent source doctrine when denying defendant's supplemental motion to suppress.

In US v. Garcia, No. 09-1662, the court of appeals affirmed defendant's sentence for distribution of cocaine, holding that defendant was sentenced prior to Booker when the district court's authority to sentence a defendant below the Guidelines range was limited to departures set forth in U.S.S.G. Chapter 5K, and the Supreme Court declined in Dillon to extend Booker's reach to resentencings authorized by 18 U.S.C. section 3582(c)(2).

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