U.S. Third Circuit: February 2010 Archives
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February 2010 Archives

Ruling on Former Rite Aid Exec's Conviction and Sentence

In US v. Brown, No. 04-4164, the Third Circuit faced a challenge to the conviction and sentence of a former Chief Legal Counsel to Rite Aid, Franklin Brown, for accounting fraud, filing false statements with the SEC, and other crimes.

In affirming defendant's conviction, the court rejected the claim that the district court abused its discretion in denying a Rule 33 motion for a new trial based on newly discovered evidence, the claim that the taped conversations between defendant and a former Rite Aid executive should have been suppressed, and that the district court abused its discretion in its reaction to defendant's plea agreement. 

However, the court vacated and remanded the sentence in light of Booker, as the district court did not explain how it considered the section 3553(a) factors in imposing the sentence.

Related Resource:

Rite Aid Prevails in Fight Over Arbitration of Labor Dispute

In Rite Aid of Pennsylvania, Inc. v. United Food & Commercial Workers Union, No. 09-1989, the U.S. Court of Appeals for the Third Circuit addressed the issue of whether the parties had agreed to arbitrate a labor dispute under the parties' collective bargaining agreement (CBA).

As stated in the decision: "In 2007 Rite Aid acquired a chain of drugstores formerly operated by Brooks Eckerd.  The employees of the newly acquired stores were not yet represented by the Union.  When Union representatives attempted to enter six of the new stores, Rite Aid denied them entry."

In affirming the judgment in favor of Rite Aid, the Court held that none of the three provisions of the CBA provided a basis for the Union's claim that its representatives are entitled to access Rite Aid's newly acquired stores and their employees. 

Related Resources:

US v. Shenandoah, No. 09-1205

District court's denial of defendant's motion to dismiss his indictment for failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA) is affirmed where: 1) nothing in SORNA or its guidelines indicates that a jurisdiction's failure to comply with SORNA relieves offenders of the obligation to register in that jurisdiction; 2) the Ex Post Facto Clause has no application to defendant's situation; 3) defendant had notice of his registration obligations; 4) SORNA is a proper regulation of commerce under the Lopez categories; 5) defendant, as a private part, lacks standing to raise a Tenth Amendment challenge to SORNA; 6) any impediment on defendant's travel does not reach the Constitutional threshold of his right to travel interstate; and 7) defendant lacks standing to challenge the rule or the manner in which it was promulgated.   

Read US v. Shenandoah, No. 09-1205

Appellate Information

On Appeal from the United States District Court for the Middle District of Pennsylvania

Opinion Filed February 9, 2010

Judges

Before:  McKee, Chagares, and Nygaard, Circuit Judges

Opinion by Circuit Judge Nygaard

Counsel:

For Appellant: Frederick W. Ulrich, Thomas A. Thornton, Office of the Federal Public Defender

For Appellee:  Martin C. Carlson, Theodore B. Smith, III, Office of the US Attorney

US v. Miller, No. 08-4278

In a prosecution of defendant for possession of child pornography and marijuana wherein he was sentenced to thirty months' imprisonment and a lifetime term of supervised release, the district court's imposition of eight special conditions of supervised release is vacated and remanded as a lifetime limitation on internet use is a greater restraint of liberty than is reasonably necessary and a restriction on his association with minors is overbroad.    

Read US v. Miller, No. 08-4278

Appellate Information

On Appeal from the United States District Court for the Middle District of Pennsylvania

Opinion Filed February 5, 2010

Judges

Before:  Sloviter, Fuentes and Smith, Circuit Judges

Opinion by Circuit Judge Fuentes

Counsel:

For Appellant: Ronald A. Krauss

For Appellee:  Theodore B. Smith III

Battoni v. IBEW Local Union No. 102 Employee Pension Plan, No. 08-3743

In plaintiffs' ERISA action challenging an amendment to their welfare plan as an unlawful cutback of their accrued benefits under their pension plan, the judgment of the district court in favor of the plaintiffs is affirmed as the amendment violated the ERISA's Anti-Cutback rule, 29 U.S.C. section 1054(g), by constructively amending the pension plan in a manner that decreased an accrued benefit under that plan.   

Read Battoni v. IBEW Local Union No. 102 Employee Pension Plan, No. 08-3743

Appellate Information

On Appeal from the United States District Court for the Western District of New Jersey

Opinion Filed February 5, 2010

Judges

Before:  Scirica, Chief Judge, Barry and Smith, Circuit Judges

Opinion by Circuit Judge Smith

Counsel:

For Appellant:  Robert E. Bartkus, Dillion Bitar & Luther

For Appellee:  Michael T. Scaraggi, Oransky Scaraggi Borg & Abbamonte

Clausell v. Sherrer, No 06-4606

District court's denial of defendant's petition for habeas relief is affirmed where: 1) defendant forfeited his right to raise a Batson claim on appeal; 2) defendant's ineffective assistance claim fails to meet the first prong of the Strickland standard; and 3) a state court reasonably applied established federal law regarding Sixth Amendment ineffective assistance claims.     

Read Clausell v. Sherrer, No 06-4606

Appellate Information

On Appeal from the United States District Court for the Western District of New Jersey

Opinion Filed February 5, 2010

Judges

Before:  Ambro, Garth and Roth, Circuit Judges

Opinion by Circuit Judge Garth

Counsel:

For Appellant:  Mary Gibbons

For Appellee:  Robert D. Bernardi, Jennifer B. Paszkiewicz

Snyder v. Blue Mountain Sch. Dist., NO. 08-4138

In plaintiffs' action against the school district for punishing their daughter for creating a internet profile of her high school principal on MySpace.com, district court's judgment in favor of the school district is affirmed where: 1) Tinker applies to student speech, whether on- or off-campus that causes or threatens to cause a substantial disruption of or material interference with school or invades the rights of other members of the school community, and here, because the student's internet profile featuring her principal alluded to his interest or engagement in sexually inappropriate behavior and illegal conduct, it threatened to substantially disrupt the Middle School regardless of whether the student's role in creating the profile was criminal or tortious; 2) school district did not violate the parents' Fourteenth Amendment rights to direct and control the upbringing of their child; 3) Pennsylvania permits school authorities to discipline students for conduct akin to this student's creation of the profile; and 4) the Middle School's policies under which the student was punished were not unconstitutionally vague or overbroad. 

Read Snyder v. Blue Mountain Sch. Dist., NO. 08-4138

Appellate Information

On Appeal from the United States District Court for the Western District of New Pennsylvania

Opinion Filed February 4, 2010

Judges

Before:  Fisher and Chagares, Circuit Judges, and Diamond, District Judge

Opinion by Circuit Judge Fisher

Counsel:

For Appellant:  Mary Catherine Roper, ACLU

For Appellee:  Jonathan P. Riba, Sweet Stevens Katz & Williams

Layshock v. Hermitage Sch. Dist., No. 07-4465

In plaintiffs' 42 U.S.C. section 1983 action arising after defendant-school district punished their son for creating a fake internet "profile" of his high school principal on MySpace.com, district court's judgment is affirmed where: 1) district court correctly ruled that the school district's response to the student's expressive conduct violated the First Amendment guarantee of free expression as allowing the school to punish him for conduct he engaged in using his grandmother's computer while at his grandmother's house would create an unseemly and dangerous precedent; 2) the school cannot punish the student merely because his speech reached inside the school; and 3) district court correctly concluded that the parents have not shown how their liberty interest was infringed by the School District's violation of their son's First Amendment right of expression.     

Read Layshock v. Hermitage Sch. Dist., No. 07-4465

Appellate Information

On Appeal from the United States District Court for the Western District of New Pennsylvania

Opinion Filed February 4, 2010

Judges

Before:  McKee, Smith and Roth, Circuit Judges

Opinion by Circuit Judge McKee

Counsel:

For Appellant:  Anthony G. Sanchez, Andrews & Price

For Appellee:  Witold J. Walczak, American Civil Liberties Foundation

Smith v. Johnson & Johnson, No. 09-1223

In plaintiff's suit seeking overtime pay under the Fair Labor Standards Act against a wholly-owned subsidiary of Johnson & Johnson, district court's order granting defendant summary judgment is affirmed as the administrative employee exemption applies to plaintiff, and defendant's cross-appeal is dismissed. 

Read Smith v. Johnson & Johnson, No. 09-1223

Appellate Information

On Appeal from the United States District Court for the District of New Jersey

Opinion Filed February 2, 2010

Judges

Before:  Sloviter, Jordan and Greenberg, Circuit Judges

Opinion by Circuit Judge Greenberg

Counsel:

For Appellant:  Michael R. DiChiara, Joseph & Herzfeld

For Appellee:  Francis X. Dee, Stephen F. Payerle, McElroy Deutsch Mulvaney & Carpenter; Rene M. Johnson, Thomas A. Linthorst, Larry L. Turner, Michael J. Ossip, Allyson N. Ho, Morgan Lewis & Bockius

Walker v. Astrue, No. 08-1446

In proceedings arising from counsels' motion for attorney's fees under section 406(b) of the Social Security Act, dismissal of the motion as untimely is reversed and remanded to give counsel an opportunity to present evidence of his notification of the award, as the court of appeals holds that Federal Rule of Civil Procedure 54(d)(2) is the appropriate standard for the filing deadline, subject to tolling until counsel's notification of an award of benefits on remand. 

Read Walker v. Astrue, No. 08-1446

Appellate Information

On Appeal from the United States District Court for the Western District of Pennsylvania

Opinion Filed February 2, 2010

Judges

Before:  FisherSmith and Stapleton, Circuit Judges

Opinion by Circuit Judge Fisher

Counsel:

For Appellant:  Zenford A. Mitchell

For Appellee:   Shawn C. Carver, Robert W. Kosman, Social Security Administration

Jackson v. Danberg, No. 09-1925

In an appeal brought by a class of inmates challenging the constitutionality of Delaware's new capital punishment by lethal injection, district court's grant of summary judgment is affirmed and the stay dissolved as, under Baze, an execution protocol that does not present a substantial risk of serious harm passes constitutional muster and, on the record, Delaware's protocol presents no such risk.   

Read Jackson v. Danberg, No. 09-1925

Appellate Information

On Appeal from the United States District Court for the District of Delaware

Opinion Filed February 1, 2010

Judges

Before:  Fisher, Hardiman, and Van Antwerpen, Circuit Judges

Opinion by Circuit Judge Fisher

Counsel:

For Appellant:  Helen A. Marino, Maria K. Pulzetti, Michael Wiseman, Defender Association of Philadelphia

For Appellee:   Elizabeth R. McFarlan, Loren C. Meyers, Marc P. Niedzielski, Gregory E. Smith. Department of Justice