U.S. Third Circuit: July 2010 Archives
U.S. Third Circuit - The FindLaw 3rd Circuit Court of Appeals Opinion Summaries Blog

July 2010 Archives

Coombs v. Diguglielmo, 08-1945, concerned a chalenge to the district court's denial of defendant's request for habeas relief, claiming that the prosecutor exercised his peremptory challenges in violation of Batson.  The court remanded the case for the district court to hold an evidentiary hearing as the trial court failed to conduct a full and complete Batson step three analysis in unreasonably limiting the defendant's opportunity to prove that the prosecutor's proffered reasons for striking black jurors were pretextual, thereby improperly restricting the defendant's ability to prove discriminatory intent.

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US v. Marzzarella, 09-3185, involved a prosecution of defendant for possession of a firearm with an obliterated serial number, in violation of section 922(k).  In affirming the district court's denial of defendant's motion to dismiss the indictment, the court held that section 922(k) passes constitutional muster even if it burdens protected conduct.  Further, section 922(k) passes muster under intermediate scrutiny as regulating the possession of unmarked firearms - and no other firearms - fits closely with the interest in ensuring the traceability of weapon.  And, even if strict scrutiny were applied to section 922(k), the statute still would pass muster as the statute protects the compelling interest of tracing firearms by discouraging the possession and use of firearms that are harder or impossible to trace, and it is also narrowly tailored.

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Denial of Mexican Citizen's Petition for Review of Removal Order

Pareja v. U.S. Attorney General, 08-4598, concerned a Mexican citizen's petition for review of BIA's final order of removal.  The court denied in part insofar as it attacks Matter of Monreal and the BIA's interpretation of the cancellation of removal statute's hardship standard. The court granted in part to the extent it relates to the BIA's consideration of the number of petitioner's qualifying relatives, and the matter is remanded to the BIA for the limited purpose of allowing it to clarify or to reconsider its application of Matter of Recinas to this case.  The court dismissed the remainder of the petition for lack of jurisdiction.

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US v. Flemming, 09-2726, concerned a challenge to the district court's denial of defendant's motion for a reduction of his 175-month sentence for his federal firearm and crack cocaine offenses, concluding that it lacked authority to reduce defendant's sentence because he was a career offender under U.S.S.G. section 4B1.1.  In vacating the judgment, the court remanded for the district court to exercise its discretion to determine whether, and to what extent, a reduction in defendant's sentence is warranted as, under a pre-2003 edition of the Sentencing Guidelines, a career offender who is granted a section 4A1.3 downward departure to the Crack Cocaine Guidelines range is eligible for a sentence reduction under 18 U.S.C. section 3582(c)(2).

US v. Bankoff, 08-3275, concerned a prosecution of defendant for threatening two employees of the Social Security Administration in violation of section 115 of Title 18 of the United States Code, making it a crime to "threaten to assault, kidnap, or murder...an official whose killing would be a crime under" section 1114, which in turn, makes it a crime to kill "any officer or employee of the United States or of any agency in any branch of the United States Government."

In vacating in part, the court held that the district court erred in ruling that an individual does not qualify as an "official" within the meaning of section 115 unless he or she is "authorized to make decisions on behalf of the government" as section 115 incorporates by reference all persons covered by section 1114, and accordingly, section 115 applies to threats against federal employees whose killing would be a crime under section 1114. Thus, because section 115 applies to both employees defendant threatened, district court's denial of a judgment of acquittal on count two is affirmed, but the district court's grant of judgment of acquittal on count three is vacated and remanded.  Lastly, defendant's Sixth Amendment violation claim is rejected.

Bimbo Bakeries USA, Inc. v. Botticella, 10-1510, concerned a challenge to the district court's grant of plaintiff's motion for preliminary injunction in plaintiff's suit for preliminary injunctive relief against its former vice president of operations, following defendant's acceptance of a senior executive position with plaintiff's competitor, Hostess Brands, seeking to protect its trade secrets involving plaintiff's popular line of Thomas' English Muffins, of which defendant was one of only seven people who possessed all of the knowledge necessary to replicate the muffins. 

In affirming, the court held that the district court had discretion to enjoin defendant from working at Hostess to the extent this proposed employment threatened to lead to the misappropriation of trade secrets.  The court also held that the district court did not abuse its discretion by determining that plaintiff demonstrated a likelihood of success on its misappropriation of trade secrets claim, nor when, faced with evidence of defendant's suspicious conduct during his final weeks at plaintiff, it determined that a stronger remedy was needed in the interim to protect plaintiff from imminent irreparable harm.  Court further held that the district court was correct in concluding that the harm of plaintiff's trade secrets being disclosed to Hostess outweighed the harm to defendant of not being able to commence employment at Hostess until the court made a final determination of the merits following a trial, and that the district court was correct in concluding that the public interest in preventing the misappropriation of plaintiff's trade secrets outweighs the temporary restriction of defendant's choice of employment.

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"Single Tire Rule" in Track Racing Addressed In Antitrust Suit

Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 09-3989, concerned a plaintiff's antitrust suit against a tire supplier competitor and a motorsports sanctioning body, arising from the adoption of the so-called "single tire rule" by various sanctioning bodies in the sport of dirt oval track racing as well as the exclusive supply contracts between the sanctioning bodies and the defendant tire supplier.

In affirming the district court's grant of defendants' motions for summary judgment, the court adopted a general rule that the Sherman Act does not forbid sanctioning bodies and other sport-related organizations from freely adopting exclusive equipment requirements, so long as such organizations otherwise possess, in good faith, sufficient pro-competitive or business justifications for their actions.  The court held that the district court was correct to grant summary judgment in favor of the defendants because of plaintiffs' failure to meet the antitrust injury requirement, and also held that the district court did not abuse its discretion on rejecting a last minute attempt to amend a pleading for the fourth time.

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State Ethics Commissions' Confidentiality Statute Unconstitutional

Stilp v. Contino, 09-3016, concerned a government watchdog's section 1983 suit, challenging the constitutionality of a statute mandating confidentiality in proceedings before the State Ethics Commission.  In affirming the district court's grant of a preliminary injunction enjoining enforcement of the statute, the court held that section 1108(k), to the extent it prohibits a complainant from disclosing his own complaint and the fact that is was filed, unconstitutionally constrains political speech in violation of the First Amendment.

The court reiterated the Supreme Court's decision in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), in holding the Virginia confidentiality statute unconstitutional: "It is true that some risk of injury to the judge under inquiry, to the system of justice, or to the operation of the Judicial Inquiry and Review Commission may be posed by premature disclosure, but the test requires that the danger be 'clear and present' and in our view the risk here falls far short of that requirement."

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Forestal Guarani S.A. v. Daros Int'l, Inc., 08-4488, concerned a challenge to the district court's grant of defendant's motion for summary judgment in an Argentinian corporation's breach of contract suit against a New Jersey corporation under the United Nations Convention on Contracts for the International Sale of Goods.

In vacating the judgment and remanding the matter, the court held that the district court incorrectly concluded that Argentina's declaration, opting out of the provision in the Convention allowing a contract to be proved even if it was not in writing, imposed a writing requirements and that the absence of a written contract in this case precluded the plaintiff's claim.  Therefore, where, as here, one party's country of incorporation has made a declaration while the other's has not, a court must first decide, based on the forum state's choice-of-law rules, which forum's law applies, and then apply the law of the forum designated by the choice-of-law analysis.

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Felon's Firearm Possession Conviction Upheld

US v. Gatlin, 09-2793, concerned a challenge to a defendant's conviction for possession of a firearm by a felon in violation of 18 U.S.C. sections 922(g)(1) and 924(e)(1).  In affirming the conviction, the cour theld tha the district court did not err in denying defendant's motion to suppress the gun as both a stop and limited search of defendant were constitutionally proper.  Also held, district court did not abuse its discretion in denying defendant's motion to disclose an informant's identity.  Lastly, the court held that there was substantial evidence from which the jury could have found that the gun had traveled in interstate commerce.

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US v. Lee, 08-4427, concerned a challenge to a defendant's conviction for being a felon in possession of a firearm and sentence as a career offender to 120 months' imprisonment. The court affirmed the judgment of the district court for the most part but vacated and remanded the sentence for resentencing.

In affirming in part, the court held that defendant is not entitled to a new trial on a rifle charge as all of the Pelullo factors indicate that there was no prejudicial spillover from the pistol charge to the rifle charge.  The court also affirmed the district court's decision to admit evidence that defendant was wearing a bullet-proof vest at time of the arrest as it was not arbitrary or irrational. The court held that defendant's statements regarding his prior possession of firearms were admissible for a proper purpose under Rule 404(b) as evidence of defendant's motive for possessing a weapon, the statements are relevant under Rule 402, and the district court's finding under Rule 403 that the danger of unfair prejudicial effect did not substantially outweigh the probative value of the statements was not arbitrary and irrational. The court also held that a new trial is not warranted because it is highly probable that  prosecutorial misconduct did not contribute to the judgment.  However, the court vacated and remanded  defendant's sentence for resentencing as his earlier conviction for reckless conduct, standing alone, does not qualify as a crime of violence. 

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Sullivan v. DB Inv. Inc., 08-2784, concerned a challenge to the district court's certification of two putative classes and an order overruling objections to the settlement fund of $295 million in plaintiffs' suit under sections 1 and 2 of the Sherman Act, and under the antitrust, consumer protection and unjust enrichment laws of all fifty states, against the De Beers corporation for fixing prices in the wholesale market for gem-quality diamonds.  In vacating the decision and remanding the matter, the court held that the district court abused its discretion in certifying the settlement classes under Rule  23(b)(3) both because the indirect purchaser class as currently defined is overbroad and because the district court's certification order did not sufficiently identify those claims and issues subject to the class treatment.  The court also held that the district court abused its discretion in certifying the settlement class under Rule 23(b)(2).

In re Visteon Corp., 10-1944, concerned a union's challenge to the district court's order affirming a bankruptcy court's order permitting defendant-employer to terminate provision of retiree health and life insurance benefits without complying with 11 U.S.C. section 1114.  In reversing the judgment, the court held that the rule of statutory construction allowing a court to ignore the plain language of a statute when literal interpretation results in absurdity is entirely inapplicable, and here, a literal interpretation of section 1114 reveals a remedial and equitable statutory scheme that, consistent with Congress' concerns when enacting the RBBPA, attempts to prevent the human dimension of terminating retiree benefits from being obscured by the business of bankruptcy.

Ferren C. v. Sch. Dist. of Philadelphia, 09-1587, concerned a challenge to the district court's various orders against the defendant in plaintiff's suit challenging the administrative decisions of a hearing officer and appeals panel, that the school district was not required to provide plaintiff with an IEP during the three-year compensatory period.  In affirming the district court's judgment ordering the school district, for the duration of plaintiff's three years of compensatory education, to annually reevaluate plaintiff, provide her with annual IEPs, and serve as her Local Education Agency, the court held that the district court had equitable power under the IDEA to grant relief of this nature and the relief furthers the purposes of the IDEA.

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Sabinsa Corp. v. Creative Compounds, LLC, 08-3255, concerned a challenge to the district court's judgment in favor of the defendant, finding that there was no likelihood of confusion between plaintiff's mark, ForsLean, and defendant's mark, Forsthin, both of which refer to an extract used in weight control products, in plaintiff's suit for trademark infringement and unfair competition. 

In reversing the judgment, the court held that the district court erred in its finding on the Lapp factors and its ultimate finding on likelihood of confusion.  Furthermore, because the undisputed facts weigh heavily in favor of plaintiff so that any reasonable fact finder would find that plaintiff demonstrated a likelihood of confusion, the case is remanded for entry of judgment in favor of plaintiff.

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Decisions in Employment and Immigration Matters

In Pichardo v. Virgin Islands Comm'r of Labor, 08-4259, the Third circuit granted a petition for a writ of certiorari, and affirmed the decision of the newly-created Supreme Court of the Virgin Islands, in plaintiff's suit against her former employer for wrongful termination.  The court first held that the degree of deference afforded to a territorial supreme court allows for reversal on matters of local law only when "clear or manifest error is shown." The court went onto to hold that there is no manifest error in the Virgin Island Supreme Court's  decisions, including that the writ of review under section 70 is limited to consideration of issues for which an objection was raised and that section 1422 cannot be invoked to seek review of decisions by the DOL, given the existence of section 70.

Leslie v. Attorney General, 08-3180, concerned a Jamaican citizen's petition for review of a final order of removal of the BIA.  In granting the petition, the court vacated the BIA's decision and remanded the matter in holding that when an agency promulgates a regulation protecting fundamental statutory or constitutional rights of parties appearing before it, the agency must comply with that regulation, and failure to comply will merit invalidation of the challenged agency action without regard to whether the alleged violation has substantially prejudiced the complaining party.  Here, the IJ's failure to apprise petitioner of the availability of free legal services, as required under 8 C.F.R. section 1240.10(a)(2)-(3), renders invalid the subsequently entered removal order, without regard to petitioner's ability to demonstrate substantial prejudice.

Kang v. Attorney General, 08-4790, concerned a Korean-Chinese citizen's petition for review of the BIA's order of removal.  In granting the petition in part, the court held that the BIA's reversal of the IJ, and determination that petitioner was not entitled to relief under CAT, was not supported by substantial evidence, but rather, the evidence compels the conclusion that it is more likely than not that petitioner will be tortured if returned to China, for providing food and shelter to North Korean refugees who had illegally entered China.  Thus, in reversing the decision of the BIA, the court concluded that a remand is not necessary as the record evidence overwhelmingly supports the conclusion that the petition for withholding or removal under CAT should be granted.

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US v. Mercado, No. 09-2681, concerned a challenge to the district court's denial of defendant's motion for judgment of acquittal for drug related convictions.  In affirming the conviction, the court held that there was sufficient evidence for a jury to find defendant guilty of aiding and abetting the possession with intent to distribute heroin beyond a reasonable doubt, as defendant's presence on multiple occasions during critical moments of drug transactions may, when considered in light of the totality of the circumstances, support an inference of defendant's participation in the criminal activity.

I.H. v. County of Lehigh, No. 08-2766, involved a suit against a private foster agency by a foster child, through his guardian ad litem, claiming that the agency was vicariously liable for the negligent driving of the foster parent that caused an accident rendering the child a quadriplegic.  In affirming the district court's grant of agency's motion for summary judgment, the court held that vicarious liability cannot be imposed on the agency for the foster parent's ordinary negligence at issue because a master-servant relationship did not exist between the agency and the foster parent. 

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  • Full text of US v. Mercado
  • Full text of I.H. v. County of Lehigh

Birthers' Suit Challenging Obama's Citizenship Frivolous

Kerchner v. Obama, No. 09-4209, concerned a challenge to the district court's dismissal of  plaintiffs' suit challenging the legitimacy of President Obama's citizenship.  In affirming, the court held that the plaintiffs lack standing as they fail to establish "injury in fact."  Furthermore, because the finding of other district courts that plaintiffs who filed complaints based on similar legal theories violated Federal Rule of Civil Procedure 11 should have served as a meaningful notice that this appeal would be frivolous, the plaintiffs' counsel is ordered to show cause why he should not pay just damages and costs for having filed a frivolous appeal.

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Lack of Jurisdiction to Review DHS's Termination of Asylum Status

Bhargava v. Attorney General, 08-3348, concerned an Indian citizen's petition for review of the BIA's affirmance of an IJ's denial of petitioner's motion to terminate removal proceedings and to certify his case to the BIA.  In denying the petition, the court held that the Board's affirmance of the IJ's decision finding that it lacked jurisdiction to review DHS's termination of petitioner's asylum status was not arbitrary or capricious or plainly erroneous or inconsistent with the regulation at issue.

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