November 2010 Archives

Order Vacating Maritime Attachment Vacated

In Alphamate Commodity GMBH v. CHS Europe SA, No. 09-30804, plaintiff's appeal from the district court's order vacating a maritime attachment, the court vacated the order where the district court lacked maritime jurisdiction over the case because the parties' contracts for sales of grain were not wholly maritime, nor were the demurrage and detention charges suffered by plaintiff severable from the alleged breaches of their sales contracts.

Bank Robbery Conviction Affirmed

In US v. Thomas, No. 09-40989, the court affirmed defendant's convictions for conspiracy, bank robbery, and weapons possession, where 1) the jury could reasonably infer that one defendant had the same partner in the first, second, third, and fifth bank robberies, and that he did not acquire a new partner for the fourth robbery who behaved identically to the other defendant; and 2) the identification confusion argued by defendants did not amount to substantial prejudice or result in an unfair trial.

Insurance Coverage Dispute

In Keller Foundations, Inc. v. Wausau Underwriters Ins. Co., No. 08-50253, defendant's appeal from the district court's judgment holding that plaintiffs were entitled to defense and indemnity under a commercial general liability policy defendant issued to a third party, from whom plaintiffs acquired certain assets, the court reversed where plaintiffs agreed to assume liability for the particular losses in question and explicitly excluded the policy from the asset transfer.

Fair Housing Act Action

In NAACP v. Kyle, Texas, No. 09-50352, a Fair Housing Act action seeking to enjoin a city's changes to its zoning and subdivision ordinances governing new single-family residences, the court affirmed judgment for defendant where plaintiffs did not have standing under either an associational or organizational theory.

Reversal of Confirmation of Chapter 13 Plan

In In re: Kizzee-Jordan, No. 09-20777, the court reversed the bankruptcy court's order confirming a Chapter 13 plan, holding that a third-party lender who pays a debtor's ad valorem taxes and receives a transfer of the local taxing authority's tax lien under Texas law holds a tax claim protected from modification by 11 U.S.C. section 511 of the Bankruptcy Code.

Bribery Convictions Affirmed

In US v. Bohuchot, No. 08-11090, the court affirmed defendants' convictions and sentences for bribery and money laundering, holding that 1) it was at least debatable whether there was clearly or obviously a constructive amendment of the indictment, but in any event, neither the third nor fourth prongs of plain error review was satisfied in this case; 2) a rational juror could infer from the circumstantial evidence and the evidence regarding the contract at issue that defendant accepted or solicited remuneration as part of an ongoing scheme as alleged in the indictment; and 3) even if the prosecutor's comments were improper, they were not sufficiently prejudicial to "cast serious doubt on the correctness of the jury's verdict."

Firearm Sentence Affirmed

In US v. Houston, No. 09-50347, the court affirmed defendant's sentence for brandishing a firearm during and in relation to a crime of violence where defendant's seven-year and 25-year sentences were for separate crimes, and thus were properly imposed.

Unlawful Reentry Sentence Affirmed

In US v. Flores-Gallo, No. 09-40882, the court affirmed defendant's sentence for unlawful reentry into the U.S., holding that the district court properly found that defendant's prior Kansas aggravated battery offense was a "crime of violence" for sentencing purposes and imposed an enhancement accordingly.

Cocaine Conviction Vacated

In US v. Jackson, No. 09-10850, the court vacated defendant's conviction and sentence, following a jury trial, for conspiring to possess with intent to distribute more than five kilograms of cocaine, where certain notebooks introduced into evidence were not sufficiently authenticated, the error violated defendant's rights under the Confrontation Clause, and the error was not harmless.

Child Pornography Conviction Affirmed

In US v. Allen, No. 09-50283, the court affirmed defendant's conviction for Shipping by Computer, Visual Depictions of Minors Engaging in Sexually Explicit Conduct, holding that 1) even though a warrant was not sufficiently particular, the fruits of the challenged search were admissible under the good-faith exception; 2) the district court did not err when it found the information in the warrant was not stale; and 3) the district court did not err in finding the description of the pictures at issue supported the finding of probable cause.

Unfair Labor Practice Injunction Affirmed

In Overstreet v. El Paso Disposal, L.P., No. 09-51006, an employer's appeal from the district court's grant of temporary injunctive relief requiring defendant to cease and desist from alleged unfair labor practices, the court affirmed the order where 1) the district court did not abuse its discretion in mandating that defendant reinstate the striking workers; and 2) the district court did not err by ordering defendant to adopt the union's proposed Dues-Check off provision.

Appeal from Denial of Designated Engineering Representative Certification by FAA

In Jones v. US, No. 09-11239, an action alleging that the FAA's denial of plaintiff's application to be a Designated Engineering Representative was retaliation for his Equal Employment Opportunity activity while employed at the FAA, the dismissal of the action is affirmed where the district court lacked subject matter jurisdiction because plaintiff's claims were inescapably intertwined with a challenge to the procedure and merits of a Federal Aviation Administrative (FAA) order.

Marijuana Sentence Affirmed

In US v. Gonzalez, No. 09-40125, the court affirmed defendant's sentence for conspiring to possess with the intent to distribute more than 1,000 kilograms of marijuana and of possession with the intent to distribute the same, holding that the government offered proof sufficient to meet the standard of beyond a reasonable doubt that defendant was the subject of a 1988 drug conviction.

Illegal Reentry Sentence Affirmed

In US v. Cruz-Rodriguez, No. 09-40500, the court affirmed defendant's sentence for illegal reentry into the U.S. where 1) the offense of willful infliction of corporal injury under California law was a crime of violence for the purpose of sentence adjustments under U.S.S.G. section 2L1.2(b)(1)(A)(ii); and 2) the California offense of making a criminal threat was not a crime of violence for the purpose of sentencing adjustments under U.S.S.G. section 2L1.2(b)(1)(A)(ii), but the district court did not plainly err in holding that it was.

Crack Sentence Affirmed

In US v. Cashaw, No. 09-51035, the court affirmed defendant's sentence for possession with intent to distribute at least fifty grams of crack cocaine within 1,000 feet of a school, holding that the minor participant adjustment of the Sentencing Guidelines could not be applied to the career offender provision.

False Claims Act Action

In US ex rel. Steury v. Cardinal Health, Inc., No. 09-20718, an action claiming that defendants sold the U.S. Department of Veterans Affairs defective medical equipment in violation of the False Claims Act, the court affirmed the dismissal of the action where the factual allegations in the amended complaint provided no basis for implying a false certification.  However, the court reversed final judgment for defendant where the district court granted leave to amend but nonetheless entered a final judgment before the time to amend expired.

Dismissal of Appeal to Tax Court Reversed

In Terrell v. Comm'r of Internal Rev., No. 09-60822, taxpayer's appeal from the tax court's dismissal of her Request for Innocent Spouse Relief as untimely, the court reversed where  the IRS had a duty to exercise reasonable diligence to search for taxpayer's correct address, but failed to do so before sending its Notice of Final Determination.

Declaratory Action by Insurer

In Canal Ins. Co. v. Coleman, No. 10-60196, an action by an insurer seeking a declaratory judgment that its policy's MCS-90 endorsement did not cover an accident where the truck involved was not engaged in the transportation of property at the time of the accident, the court affirmed summary judgment for plaintiff where the MCS-90 covered only liability for the transportation of property.

Capital Habeas Matter

In Maldonado v. Thaler, No. 10-70003, a capital habeas matter, the denial of petitioner's habeas petition is affirmed where, assuming without deciding that petitioner's evidence regarding his alleged mental retardation rebutted the presumption of correctness that attached to the state habeas court's decision to credit the government's expert's testimony, petitioner was not entitled to habeas relief because even disregarding that testimony, he could not meet his burden of showing that the state court's finding that he was not mentally retarded was either an unreasonable application of Atkins or an unreasonable determination of the facts in light of the evidence presented in state court.