District court's sentence of a 240 months imprisonment and a life term of supervised release of a defendant convicted of knowingly transporting a minor in interstate commerce with intent to engage in sexual activity and related offenses is affirmed where: 1) district court's use of uncharged conduct in determining defendant's sentence did not violate the Sixth Amendment; 2) district court did not err by relying on uncharged conduct that was proven by preponderance of the evidence standard; and 3) the district court did not commit reversible error in calculating defendant's Guidelines range and the sentence was therefore procedurally reasonable.   

Read US v. Grubbs, No. 07-5040

Appellate Information

Argued: September 24, 2009

Decided: November 6, 2009

Judges

Opinion by Judge Agee

Counsel

For Appellant: Matthew Segal, Federal Defenders of Western North Carolina, Inc.

For Appellee: Adam Christopher Morris, Office of the United States Attorney, Charlotte, North Carolina

Petition for review of the BIA's order denying a citizen of Cameroon's motion to reopen his removal proceedings is granted and the BIA's decision vacated and remanded as the BIA did not explain why petitioner's new evidence failed to demonstrate a change of country conditions.   

Read Nken v. Holder, No. 08-1813

Appellate Information

Argued: September 22, 2009

Decided: October 30, 2009

Judges

Opinion by Judge Motz

Counsel

For Appellant: Lindsay Claire Harrison, Jenner & Block, LLP, Washington, DC.

For Appellee:  Lindsay E. Williams, United States Department of Justice, Washington, DC.

Plaintiff's petition for review of a decision of the Benefits Review Board of the US Department of Labor, affirming an ALJ's decision that awarded hearing loss compensation to plaintiff under the Longshore and Harbor Workers' Compensation Act (LHWCA) based on an audiogram that did not comply with the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), is granted and reversed because section 908(c)(13)(E) of the LHWCA mandates that hearing loss compensation be based on hearing loss determinations made in accordance with the AMA Guides. 

Read Green-Brown v. Sealand Servs. Inc., No. 08-1236

Appellate Information

Argued: September 22, 2009

Decided: October 29, 2009

Judges

Opinion by Judge Michael

Counsel

For Appellant: Gregory Edward Camden, Montagna, Klein, Camden, LLP

For Appellee:  Patrick Michael Brogan, Davey & Brogan PC.

In plaintiff's lawsuit against the United States under the Federal Tort Claims Act, alleging that the government's employee negligently caused an automobile accident killing her husband, dismissal of the case for lack of subject matter jurisdiction is vacated and remanded as, when the scope-of-employment issue is determinative of both jurisdiction and the underlying merits of an FTCA claim, dismissal under Rule 12(b)(1) is inappropriate.     

Read Kerns v. US, No. 08-1287

Appellate Information

Argued: September 22, 2009

Decided: October 29, 2009

Judges

Opinion by Judge King

Counsel

For Appellant:  Paul David Bekman, Salisbury, Clements, Bekman, Marder & Adkins

For Appellees:  Ariana Wright Arnord, Baltimore, Maryland

District court's grant of government's motion for an order permitting it to involuntarily medicate defendant to render her competent to stand trial is vacated and remanded as the government had the burden of satisfying the Sell v. US, 539 U.S. 166 (2003), standard by clear and convincing evidence, and when the current state of the record is considered with this higher standard of proof, questions arise as to whether the government carried its burden under Sell.     

Read US v. Bush, No. 08-6725

Appellate Information

Argued: September 24, 2009

Decided: October 29, 2009

Judges

Opinion by Judge Niemeyer

Counsel

For Appellant:  Marta K. Kahn, Baltimore, Maryland

For Appellee:  Bonnie S. Greenberg, Baltimore, Maryland

Defendant's conviction and sentence to thirty months in prison and three-year term of supervised release for threatening federal officials is affirmed but special conditions in connection with supervised release ordering defendant to not possess pornography, not enter places where pornography could be obtained, not have contact with children, and submit to invasive sex offender tests are vacated and remanded as the district court offered scant explanation for any of the challenged special conditions and no explanations for the pornography conditions. 

Read US v. Armel, No. 08-4700

Appellate Information

Argued: September 24, 2009

Decided: October 19, 2009

Judges

Opinion by Judge Motz

Counsel

For Appellant:  Mary Elizabeth Maguire, Office of the Federal Public Defender, Richmond, Virginia

For Appellees: Stephen David Schiller, Office of the United States Attorney, Richmond, Virginia

District court's refusal to quash a grand jury subpoena duces tecum seeking documents from a sitting Congressman's Chief of Staff is affirmed as, even if the congressional office is deemed to be a sole proprietorship, the Congressman is not entitled to bar his Chief of Staff from producing the documents to a grand jury by invoking his Fifth Amendment privilege, because as a sole proprietor, he could not assert Fifth Amendment privilege to quash a subpoena served on the Chief of Staff who had actual possession of the documents and was responsible for preparing and maintaining them.     

Read In re Grand Jury Subpoena: John Doe, No. 06-1572

Appellate Information

Argued: September 18, 2009

Decided: October 15, 2009

Judges

Opinion by Judge King

Counsel

For Appellant: Amy Berman Jackson, Trout Cacheris PLLC, Washington, DC.

For Appellees: Patty Merkamp Sternler, United States Department of Justice, Criminal Division, Appellate Section, Washington, DC.

In plaintiff's Bivens action against an FBI agent and others arising from her extradition to South Korea for the murder of a fellow exchange student which resulted in an acquittal, district court's dismissal of plaintiff's claims except for her Fourth Amendment claim for malicious prosecution is reversed and remanded as the FBI agent is entitled to qualified immunity where plaintiff has not alleged a violation of her constitutional right to be free from malicious prosecution in the United States.   

Read Snider v. Lee, No. 08-1414

Appellate Information

Argued: May 12, 2009

Decided: October 6, 2009

Judges

Opinion by Judge Niemeyer

Counsel

For Appellant:  Catherine Yvonne, United States Department of Justice

For Appellees:  J. Samuel Tenenbaum, Northwestern University School of Law

In a state tort lawsuit brought by plaintiffs arising from defendants' protest against gays in the military near the funeral for plaintiffs' son who had died in the Iraq war, district court's award of $8 million in compensatory damages and $2.1 million in punitive damages against defendant-Baptist church and members is reversed as the judgment attaches tort liability to constitutionally protected speech, and thus, the district court erred in declining to award defendants judgment as a matter of law. 

Read Snyder v. Phelps, No. 08-1026

Appellate Information

Argued: December 2, 2008

Decided: September 24, 2009

Judges

Opinion by Judge King

Counsel

For Appellant:  Margie Jean Phelps.

For Appellees:  Sean E. Summers, Barley & Snyder, LLC

In a securities fraud action, district court's order of disgorgement of appellants' profits from the sales of a stock tip, imposition of civil penalties, and injunction against future violations of section 10(b) of the Securities Exchange Act and Rule 10b-5 is affirmed where:  1) the district court correctly found that appellants' conduct constituted a violation of Section 10(b) and thus, appellants cannot avoid application of the statute by invoking constitutional concerns because the text and purpose of the section admit of no exception for disinterested publishers; 2) appellants' First Amendment claim fails as punishing fraud, whether it be common law fraud or securities fraud, simply does not violate the First Amendment; and 3) the injunction does not constitute an unlawful prior restraint because it only enjoins appellants from engaging in securities fraud which is unprotected speech.

Read SEC v. Pirate Investor LLC, No. 08-1037

Appellate Information

Argued: December 2, 2008

Decided: September 15, 2009

Judges

Per Curiam Opinion

Counsel

For Appellant:  Bruce D. Brown, Baker & Hostetler, LLP., of Washington, DC.

For Appellees:  Michael Conley, United States Securities & Exchange Commission, Washington, DC.

Alvaro A. Inigo, Zunka, Milnor, Carter & Ingo, Ltd., Charlottesville, VA