U.S. Third Circuit: July 2009 Archives
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July 2009 Archives

Doroshow v. Hartford Life and Accident Ins. Co., No. 08-2836

In a dispute involving long term disability benefits, district court judgment is affirmed where defendant was not arbitrary and capricious in its decision to deny long term disability benefits to plaintiff under an employee welfare benefit plan, as plaintiff sought advice for his Amyotropic Lateral Sclerosis during the lookback period and was thus ineligible for the benefits under the pre-existing condition plan exclusion.    

Read Doroshow v. Hartford Life and Accident Ins. Co., No. 08-2836

Appellate Information
On Appeal from the United States District Court for the Eastern District of Pennsylvania.
Argued February 3, 2009
Filed July 30, 2009

Judges
Before: RENDELL, JORDAN and ROTH, Circuit Judges
Opinion by ROTH, Circuit Judge.

Counsel
For Appellant: Scott I. Fegley, Yardley, PA.
For Appellee: Brian P. Downey, Pepper Hamilton, LLP, Harrisburg, PA.

Sharrieff v. Cathel, No. 07-1156

District Court judgment denying plaintiff's petition for habeas corpus and refusing to issue a certificate of appealability is reversed in part where the state clearly and unambiguously waived the exhaustion requirement under 28 U.S.C. sec. 2254(b)(3) when it conceded exhaustion in its answer to plaintiff's habeas petition. Plaintiff's habeas petition should be granted so that he may be resentenced on his two robbery convictions.    

Read Sharrieff v. Cathel, No. 07-1156

Appellate Information
On Appeal from the United States District Court for the District Court of New Jersey.
Submitted June 24, 2009
Filed July 30, 2009

Judges
Before: BARRY, SMITH, Circuit Judges and RESTANI, Judge.
Opinion by SMITH, Circuit Judge.

US v. Smith, No. 08-3642

In a prosecution for drug- and firearm-related offenses, grant of defendant's motion to suppress all physical evidence and statements stemming from his encounter with police is reversed where the court erred when it held defendant was seized prior to his physical contact with the officers as there was no show of authority by the police officers in the first alleged seizure, and he did not indicate submission to the officers' show of authority in the second alleged seizure.  

Read US v. Smith, No. 08-3642

Appellate Information
On Appeal from the United States District Court for the District of Delaware.
Argued April 20, 200
Filed July 30, 2009

Judges
Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges
Opinion by SCIRICA, Chief Judge

Counsel
For Appellant: Keith M. Rosen, Office of United States Attorney, Wilmington, DE.
For Appellee: Keir Bradford, Office of Federal Public Defender, Wilmington, DE.

US v. Ramirez, No. 05-5042

Conviction for drug-related crimes is affirmed where: 1) the Omnibus Crime Control and Safe Streets Act does not prevent the use of unsealed duplicates or materials sourced from such duplicates at trial as long as an original was recorded and judicially sealed in accordance with Title III of the Act; and 2) the failure to simultaneously broadcast the audiotape evidence through the courtroom's public loudspeaker as it was being played through headphones for the trial participants did not violate defendant's Sixth Amendment right to a public trial.    

Read US v. Ramirez, No. 05-5042

Appellate Information
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Filed July 29, 2009

Judges
Before: SCIRICA, Chief Judge, MCKEE, and SMITH, Circuit Judges
Opinion by SMITH, Circuit Judge.

Counsel
For Appellant: Lawrence S. Krasner, Krasner Law Offices, Philadelphia, PA.

For Appellee: Ewald Zittlau, Assistant United States Attorney, Philadelphia, PA.

In an employment termination action alleging that defendant violated plaintiff's procedural due process rights in terminating his employment, district court judgment is affirmed where plaintiff had fair notice and an opportunity to be heard as to why the Board should not terminate his employment, and thus he received the process to which he was entitled under the Due Process Clause of the Fourteenth Amendment.    

Read Biliski v. Red Clay Consolidated Sch. Dist. Bd. of Educ., No. 08-1742

Appellate Information
Appeal from the United States District Court for the District of Delaware.
Filed July 29, 2009

Judges
Before Before: SLOVITER, HARDIMAN, Circuit Judges, and POLLAK, District Judge
Opinion by SLOVITER, Circuit Judge.

Counsel
For Appellant: Joseph M. Bernstein, Wilmington, DE.

For Appellee: Seth J. ReidenbergYoung Conaway Stargatt & Taylor LLP, Wilmington, DE.

US v. Abbott, No. 08-1623

Conviction and sentence for drug crimes and firearms possession is affirmed where: 1) the district court did not err by imposing a consecutive five-year sentence as the prefatory clause of the Armed Career Criminal Act refers only to alternative minimum sentences for violations of the Act; and 2) the court did not err in denying defendant's motion to suppress physical evidence found on his person as there was probable cause that the house in question was being used for a criminal enterprise, and thus the search of all persons present inside the house was justified.    

Read US v. Abbott, No. 08-1623

Appellate Information
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Argued March 3, 2009
Filed July 28, 2009

Judges
Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.
Opinion by SLOVITER, Circuit Judge.

Counsel
For Appellant: Jennifer A.L. Battle, Joseph Anclien, Elizabeth K. Ainslie, Philadelphia, PA. 

For Appellee: Mark S. Miller, Elizabeth F. Abrams, Office of United States Attorney, Philadelphia, PA.

US v. Stinson, No. 08-1717

Sentence for drug crimes and firearms possession is affirmed where: 1) defendant has been convicted of the two requisite crimes to qualify as a career offender, as his state law conviction for resisting arrest constitutes a crime of violence as that term is used in U.S.S.G. sec. 4B1.1(a); and 2) the district court properly considered the 18 U.S.C. sec. 3553 (a) sentencing factors.   

Read US v. Stinson, No. 08-1717

Appellate Information
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Submitted July 6 2009
Filed July 28, 2009

Judges
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges.
Opinion by SLOVITER, Circuit Judge.

Counsel
For Appellant: Thomas F. Burke, Philadelphia, PA. 

For Appellee: Laurie Magid, Acting United States Attorney, Robert A. Zauzmer, Assistant United States Attorney, Maria M. Carrillo, Assistant United States Attorney, Philadelphia, PA.

Hohider v. UPS, No. 07-4588

District court judgment certifying a class of employees alleging unlawful discrimination under the Americans with Disabilities Act is reversed where: 1) the court abused its discretion in identifying the Teamsters legal standard as controlling plaintiffs' claims and in granting certification after adopting the Teamsters method of proof to adjudicate plaintiffs' claims without considering the ADA's statutory elements; and 2) the required inquiry under the ADA into the elements of qualification and reasonable accommodation cannot be evaluated on a classwide basis in a manner consistent with FRCP Rule 23, and thus the class cannot be certified as plaintiffs cannot adjudicate their claims and requested relief without it.    

Read Hohider v. UPS, No. 07-4588

Appellate Information
Appeal from the United States District Court for the Western District of Pennsylvania.
Argued November 29, 2008
Filed July 23, 2009

Judges
Before SCIRICA, Chief Judge, and RENDELL, Circuit Judge, and O'CONNOR, Associate Justice (Ret.)
Opinion by FSCIRICA, Chief Judge.

Counsel
For Appellant: Mark A. Perry, Gibson Dunn & Crutcher.
For Appellee: Judith S. Scolnick, Scott & Scott.

Koval v. Washington County Redevelopment Authority, No. 08-2492

In a dispute involving the revocation of a retirement health plan, district court judgment is affirmed where it properly dismissed plaintiff's suit for lack of subject matter jurisdiction as defendant is a political subdivision of Pennsylvania, and thus, its benefit plan constitutes a governmental plan exempt from ERISA under 29 U.S.C. sec. 1003(b)(1). 

Read Koval v. Washington County Redevelopment Authority, No. 08-2492

Appellate Information
Appeal from the United States District Court for the Western District of Pennsylvania.
Submitted May 19, 2009
Filed July 23, 2009

Judges
Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.
Opinion by FUENTES, Circuit Judge.

Counsel
For Appellant: Peter M. Suwak.
For Appellee: John M. Giunta, Cipriani & Werner.

US v. Nestor, No. 08-2535

Conviction for attempting to persuade, induce, entice, or coerce a child to engage in illegal sexual activity is affirmed where defendant violated 18 U.S.C. sec. 2422(b) despite not communicating directly with a child or with someone whom he believed was a child by using an adult intermediary.    

Read US v. Nestor, No. 08-2535

Appellate Information
Appeal from the United States District Court for the Western District of Pennsylvania.
Submitted July 9, 2009
Filed July 23, 2009

Judges
Before: SLOVITER, AMBRO and JORDAN, Circuit Judges.
Opinion by JORDAN, Circuit Judge.

Counsel
For Appellant: Karen S. Gerlach, Office of Federal Public Defender.
For Appellee: Robert L. Eberhardt, Office of the United States Attorney.

Lohman v. Duryea Borough, No. 08-3524

District court award of attorney's fees is affirmed where Federal Rule of Evidence 408 does not bar a court's consideration of settlement negotiations in its analysis of what constitutes a reasonable fee award in a particular case.   

Read Lohman v. Duryea Borough, No. 08-3524

Appellate Information
Appeal from the United States District Court for the Middle District of Pennsylvania.
Argued May 20, 2009
Filed July 23, 2009

Judges
Before RENDELL and GARTH, Circuit Judges, and PADOVA, District Judge.
Opinion by Howard, Circuit Judge.

Counsel
For Plaintiff: Cynthia L. Pollick, The Employment Law Firm.
For Defendant: Karoline Mehalchick, Oliver, Price & Rhodes.

US v. Lee, No. 07-1406

Conviction for drug crimes is vacated and remanded for a new trial where the district court abused its discretion in failing to grant a mistrial as the government's failure to disclose inculpatory documents to defense counsel interfered with defendant's substantial rights. The district court did not err in denying defendant's motion to suppress physical evidence obtained from defendant's car and hotel room, and did not abuse its discretion in admitting evidence of defendant's prior convictions.    

Read US v. Lee, No. 07-1406

Appellate Information
Appeal from the District Court for the Eastern District of Pennsylvania
Argued March 10, 2009
Filed July 17, 2009

Judges
Before FUENTES, CHAGARES, and ALDISERT, Circuit Judges.
Opinion by FUENTES, Circuit Judge.

Counsel
For Appellant: Michael N. Huff.

For Appellee: Patrick L. Meehan, Mark S. Miller, Robert A. Zauzmer.

Giles v. Kearney, No. 07-4140

In a prisoner civil rights action alleging excessive force and deliberate indifference to medical needs in violation of the Eighth Amendment, summary judgment for defendants is reversed in part and affirmed in part where: 1) as to three correctional officers in their individual capacities, plaintiff alleged conduct in violation of his Eighth Amendment rights that a reasonable officer would have known was a violation under the circumstances, and thus it was improper to dismiss plaintiff's complaints against the officers on the basis of qualified immunity; 2) the court did not err in finding that the use of force in a shower incident and by other officers in the infirmary cell incident was not excessive, as the record reflects that the court considered the Whitley factors and the findings made by the court were sufficient for a clear understanding of the basis of the decision; and 3) the court did not clearly err in holding that there was no deliberate indifference to plaintiff's serious medical needs.   

Read Giles v. Kearney, No. 07-4140

Appellate Information
Appeal from the United States District Court for the District of Delaware.
Argued March 10, 2009
Decided July 15, 2009

Judges
Before: FUENTES, CHAGARES and ALDISERT, Circuit Judges.
Opinion by ALDISERT, Circuit Judge.

Counsel
For Appellant: Kathryn J. Gainey, Steptoe & Johnson LLP.

For Appellee: Judy Oken Hodas, Deputy Attorney General.

US v. 5 Unlabeled Boxes, No. 07-4352

District court grant of summary judgment upholding the FDA's Final Rule banning all supplements containing ephedrine alkaloids is affirmed where res judicata bars third party plaintiff Hi-Tech's arguments on appeal as Hi-Tech had two full opportunities to litigate its challenge to the Final Rule banning EDS in district court, and the Eleventh Circuit evaluated Hi-Tech's claims and determined them to be without merit.    

Read US v. 5 Unlabeled Boxes, No. 07-4352

Appellate Information
Appeal from the United States District Court for the Western District of Pennsylvania.
Filed: July 14, 2009

Judges
Before: RENDELL, SMITH, Circuit Judges, and POLLAK, District Judge
Opinion by CUDAHY, Circuit Judge.

Counsel
For Appellant: Kathryn L. Clark, Eckert, Seamans, Cherin & Mellott; Joseph P. Schilleci, Jr., Timothy M. Fulmer, Natter & Fulmer, P.C.; Edmund J. Novotny, Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C.

For Appellee: Christine N. Kohl, Douglas N. Letter, United States Department of Justice.

Conopco, Inc. v. US, No. 07-3564

In a dispute involving a federal income tax refund, summary judgment in favor of the government is affirmed where the court properly held that that 26 U.S.C. sec. 162(k)(1) disallows plaintiff from claiming the deduction available under 26 U.S.C. sec. 404(k)(1) for payments to an Employee Stock Ownership Plan trust in redemption of the preferred stock, as it inevitably involves an amount paid or incurred by a corporation in connection with the reacquisition of its stock.    

Read Conopco, Inc. v. US, No. 07-3564

Appellate Information
Appeal from the United States District Court for the District of New Jersey.
Argued January 6, 2009
Filed July 13, 2009

Judges
Before: FUENTES and FISHER, Circuit Judges, and PADOVA, District Judge.
Opinion by FISHER, Circuit Judge.

Counsel
For Appellant: Ronald S. Rolfe, Cravath, Swaine & Moore.

For Appellee: Ellen P. DelSole, United States Department of Justice.

Kendall v. Russell, No. 08-1212

District court judgment finding that the Commission Act empowering the Virgin Islands Commission on Judicial Disabilities to remove judges of the Superior Court violates the Revised Organic Act and enjoining the Commission members from initiating or continuing removal proceedings against plaintiff is affirmed where: 1) the court was correct not to abstain from deciding this case as there is currently no valid avenue for appellate review of a Commission order affecting someone like plaintiff, and thus, Younger abstention was not warranted; and 2) the Commission Act violates the separation of powers principle inherent in the Revised Organic Act as the Legislature purported to authorize the Commission to exercise power to remove judges without itself having such power. 

Read Kendall v. Russell, No. 08-1212

Appellate Information
Appeal from the United States District Court of the Virgin Islands.
Argued December 8, 2008
Filed July 13, 2009

Judges
Before: FISHER, JORDAN and STAPLETON, Circuit Judges.
Opinion by JORDAN, Circuit Judge.

Counsel
For Appellant: Maria T. Hodge, Hodge & Francois.

For Appellee: Howard M. Cooper, Julie E. Green, Todd & Weld.

Commodity Futures Trading Comm'n v. Equity Fin. Group, No. 08-1558

In a a civil enforcement action brought under the Commodity Exchange Act, district court judgment against defendant is affirmed where: 1) the Act not require a commodity pool operator to actually trade and make commodity futures transactions in its own name in order to be considered a community pool operator; 2) defendant's solicitation and receipt of funds for the purpose of trading futures contracts and its management of an investment vehicle placed it within the definition of a commodity pool operator; 3) the court did not err in concluding two defendants committed fraud under the Act as their knowledge of the falsity of their statements and disclosures showed they acted with scienter; 4) the court's properly concluded that such defendants were liable as controlling persons for defendant-entity's failure to register with the Commodities Futures Trading Commissions, as they knew about the registration requirement and continued to operate the fund without registering; and 5) one defendant's conduct sufficed to establish his liability for aiding and abetting another's violation.    

Commodity Futures Trading Comm'n v. Equity Fin. Group, No. 08-1558

Appellate Information
Appeal from the United States District Court for the District of New Jersey.
Argued March 3, 2009
Filed July 13, 2009

Judges
Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.
Opinion by SCIRICA, Chief Judge.

Counsel
For Appellant: Robert W. Shimer, Vincent J. Firth

For Appellee: Martin B. White, Jeffrey A. Carr, J. Vernon Abernethy

US v. Cuevas-Reyes, No. 08-3059

Conviction for for shielding illegal aliens is reversed where defendant's conduct did not meet the requirements of the test established in Ozcelik and thus there is no evidence from which a reasonable juror could infer that defendant's actions constituted substantial facilitation of the women's remaining in the United States illegally. 

Read US v. Cuevas-Reyes, No. 08-3059

Appellate Information
On Appeal from the United States District Court for the District of the Virgin Islands.
Filed: July 10, 2009

Judges
Before: BARRY, HARDIMAN and COWEN, Circuit Judges.
Opinion by HARDIMAN Circuit Judge.

Counsel
For Appellant: Darren John Baptiste.

For Appellee: Ishmael A. Meyers, Jr., Office of United States Attorney.

US v. Carbo, No. 07-3576

District court judgment overturning the conviction for conspiracy and honest services mail fraud and granting a judgment of acquittal is affirmed where, even if defendant did not know the details of the  disclosure requirements, the evidence was sufficient for a reasonable jury to conclude that defendant had the specific intent to aid and abet honest services mail fraud and to conspire to commit honest services mail fraud. 

Read US v. Carbo, No. 07-3576

Appellate Information
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Argued October 30, 2008
Decided July 9, 2009

Judges
Before SLOVITER, STAPLETON and TASHIMA, Circuit Judges.
Opinion by TASHIMA, Circuit Judge.

Counsel
For Appellant: Robert A. Zauzmer, Richard J. Zack, Paul L. Gray, Assistant United States Attorneys.

For Appellee: Robert J. Donatoni.

District court order granting defendant summary judgment and dismissing plaintiff's motion to compel arbitration is reversed and remanded where: 1) the kind of extraordinary circumstances warranting abstention by a federal court under the Colorado River doctrine are not present; and 2) the previous state court ruling does not collaterally estopp plaintiff from seeking to enforce the arbitration provision of its agreement with defendant, as plaintiff was a nonparty and did not otherwise have its interests represented before the state court, and the record does not show that the other party in the state action intended to or did adequately represent plaintiff's interests such that the two can be said to be in privity. 

Read Nationwide Mutual Fire Ins. Co. v. George V. Hamilton, Inc., No. 08-4733

Appellate Information
Appeal from the United States District Court for the Western District of Pennsylvania.
Submitted: May 21, 2009
Filed: July 6, 2009

Judges
Before: FUENTES, JORDAN and NYGAARD, Circuit Judges.
Opinion by JORDAN, Circuit Judge.

Counsel
For Appellant: Peter B. Skeel, Summers, McDonnell, Hudock, Guthrie & Skeel, LLP; Rolf E. Gilbertson, Eric E. Caugh, Christopher R. Paar, Kathryn M. Hoffman, Zelle Hofmann Voelbel & Mason LLP.

For Appellee: Frederick J. Francis, Joseph E. Linehan, Richard T. Victoria, Meyer, Unkovic & Scott LLP.

Marshak v. Treadwell, No. 08-1771

In an action related to a trademark dispute involving the singing group "The Drifters," district court judgment is affirmed in part and reversed and remanded in part where: 1) the court did not err in issuing contempt findings against the plaintiffs as they reassembled plaintiff's business under different names in order to evade the injunction issued by the district court judge; 2) the court erred in holding co-plaintiff Revels in contempt, as defendant never actually moved for him to be held in contempt, and he thus never obtained notice and a separate hearing; and 3) the court properly awarded defendant attorney's fees, but abused its discretion in refusing to impose any remedy other than attorney's fees, as plaintiff continued to evade the injunction and infringe the trademark. The matter is remanded for an order of accounting of plaintiff's profits. 

Read Marshak v. Treadwell, No. 08-1771

Appellate Information
Appeal from the Order of the United States District Court for the District of New Jersey.
Argued: March 10, 2009
Filed: July 2, 2009

Judges
Before: FUENTES, CHAGARES, and ALDISERT, Circuit Judges.
Opinion by FUENTES, Circuit Judge.

Counsel
For Appellant: John A. DeMaro, Ruskin Moscou Faltischek, P.C.
For Appellee: Cindy D. Salvo, The Salvo Law Firm, P.C.

In re Complaint of Judicial Misconduct, No. 09-08-90035

The complaint of judicial misconduct against Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit with respect his website is concluded under Rule 20(b)(1)(B) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, as appropriate corrective action has been taken. To the extent the complaint involves the Judge's conduct in the United States v. Isaacs case, that portion is dismissed under Rule 20(b)(1)(A)(i) as neither the Judge's assignment to the Isaacs case nor his decision to recuse himself from it constituted conduct cognizable under the Judicial Conduct and Disability Act. 

Read In re Complaint of Judicial Misconduct, No. 09-08-90035

Appellate Information
Original Proceedings under 28 U.S.C. § 351
Transferred from the Judicial Council of the Ninth Circuit
Filed June 5, 2009

Judges
Before SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY, AMBRO, AMBROSE, BROWN, BARTLE, KANE, and SLEET, Members of the Judicial Council.
Opinion by SCIRICA, Chief Judge.

Thomas v. Horn, No. 05-9006

District court's denial of petition for habeas relief as to petitioner's guilt phase claims is affirmed where: 1) the court's reasonable doubt jury instruction may have lessened the prosecution's burden of proof, but was not unconstitutional; 2) the Commonwealth's closing argument at sentencing did not violate petitioner's due process and Eighth Amendment rights; and 3) counsel's failure to ask the jury life-qualifying questions did not constitute ineffective assistance of counsel. The court's grant of sentencing relief is vacated where petitioner cannot demonstrate that his counsel was deficient at sentencing based on the evidence on the record, and remand the case for an evidentiary hearing concerning the extent of petitioner's counsel's pre-sentencing investigative efforts to obtain mitigating evidence.   

Read Thomas v. Horn, No. 05-9006

Appellate Information
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Argued May 1, 2009
Filed: July 1, 2009

Judges
Before: MCKEE, SMITH, and STAPLETON, Circuit Judges.
Opinion by SMITH, Circuit Judge.

Counsel
For Plaintiff: Maureen Kearney Rowley, Federal Community Defender Office for the Eastern District of Pennsylvania.
For Defendant: David Curtis Glebe.

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