U.S. Eighth Circuit - The FindLaw 8th Circuit Court of Appeals Opinion Summaries Blog

May 2010 Archives

Firearm Possession Sentence Affirmed

In US v. Jarvis, No. 09-2199, the court of appeals affirmed defendant's sentence for being a felon in possession of a firearm and possession of stolen firearms, holding that the district court adequately explained why partially consecutive sentences were reasonable, and it did not abuse its discretion in sentencing defendant as it did.

As the court wrote:  "Michael Jarvis appeals the 175-month sentence imposed upon him following his conviction for being a felon in possession of a firearm and possession of stolen firearms, in violation of 18 U.S.C. §§ 922 and 924. Jarvis argues that the district court abused its discretion when imposing an above guidelines sentence via partially consecutive sentences. We affirm."

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Minnesota Deli Provisions, Inc. v. Boar's Head Provisions Co., 08-3607, involved an action arising out of the termination of the parties' business relationship, involving charges of breach of contract, breach of the implied covenant of good faith and fair dealing, promissory estoppel, and tortious interference with business relations.  The Eighth Circuit affirmed summary judgment for defendant, holding that 1) the phrase "not performing satisfactorily," when read in context, did not create an enforceable limit on defendant's right to terminate business relations; 2) the parties' relationship was terminable at will and did not encompass a durational agreement; 3) a "clear and definite" promise could not be found in the evidence; and 4) there was no evidence that defendant's actions were unjustified, as was necessary for a claim of tortious interference with contractual relations.

As the court wrote:  "This case for damages, arising out of the termination of a business relationship, involves charges of breach of contract, breach of the implied covenant of good faith and fair dealing, promissory estoppel, and tortious interference with business relations. The district court entered summary judgment for the defendants, Boar's Head Provisions Co., Inc. ("Boar's Head") and Frank Brunckhorst Co., LLC ("Brunckhorst"). We affirm."

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In US v. Oaks, No. 08-2451, the court of appeals affirmed defendant's conviction and sentence for being a felon in possession of a firearm, holding that 1) there was no evidence suggesting any adverse rulings were motivated by bias on the part of the court; 2) the district court did not omit a definition of "knowingly" in its instructions; 3) defendant placed his knowledge of the firearm's presence at the scene on his person at issue by pleading not guilty to the crime and requiring the government to prove his guilt beyond a reasonable doubt; and 4) defendant's attempt to save his claim of sentencing error by characterizing it as a due process violation was unavailing because his failure to object obviated any argument he could make that the information in the presentence report was inaccurate.

US v. Hull, No. 08-4015, concerned a prosecution for distribution of child pornography.  The Eighth Circuit affirmed the district court's order of forfeiture, holding that 1) the evidence showed a substantial connection - not merely an incidental or fortuitous relationship - between defendant's real property and the offenses; 2) because defendant's acreage was a single tract of land that was conveyed to him as a whole, the district court was correct to treat the entire acreage as a single piece of "property" when applying the statute; and 3) the relatively high recommended fine range did not suggest a minimal level of culpability, and a comparison of the forfeiture and the fine range suggested that the forfeiture was, at a minimum, presumptively not excessive.

Anderson v. Durham D&M, L.L.C., No. 09-1758, involved an action alleging race discrimination under Title VII and 42 U.S.C. section 1981, age discrimination under the Age Discrimination and Employment Act (ADEA), and a racially hostile work environment under section 1981.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) plaintiff offered little more than speculation and conjecture that fellow employees' name calling and ridicule had anything to do with race; 2) plaintiff could not show defendant's reason for terminating him as a driver--his unsafe record as a whole--was pretextual; and 3) defendant did not contest that an older driver took over his route upon his termination.

In US v. Sampson, No. 09-2872, the Eighth Circuit affirmed defendant's conviction and sentence for transporting and attempting to transport child pornography in interstate commerce, and possessing a firearm after having been convicted of a felony, on the grounds that 1) defendant entered his guilty plea knowingly and voluntarily; 2) defendant did not provide any evidence to support his claim of innocence; 3) the district court did not err in concluding that the video that had been emailed twice should be counted that way under U.S.S.G. section 2G2.2(b)(7); and 4) the district court clearly explained and adequately justified its intention to impose a 188 month sentence.

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In US v. Deegan, No. 08-2299, the court of appeals affirmed defendant's murder sentence, on the grounds that 1) defendant did not object to the adequacy of the district court's explanation of her sentence or request any elaboration; 2) the district court's discussion of the guidelines was an accurate statement about the general purpose and methodology behind the sentencing guidelines; and 3) a court reasonably could view defendant's offense as "unusually heinous, cruel, and brutal," and deserving of harsh punishment.

Friedman & Friedman, Ltd. v. Tim McCandless, Inc., No. 08-2976, involved an action against a seller of an airplane that allegedly failed to comport with the contract and with the representations by the seller.  The court of appeals reversed judgment for plaintiff, holding that the district court refused to instruct the jury on plaintiff's duty to provide timely notice of the plane's alleged nonconformity with the contract.

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In US v. Parish, No. 08-3421, the court of appeals affirmed defendant's conviction and sentence for knowingly and intentionally possessing with the intent to distribute a mixture or substance containing a detectable amount of cocaine base and one count of knowingly possessing a firearm in furtherance of a drug trafficking crime, on the grounds that 1) it appeared from a review of the record that defendant was able to present to the jury all the evidence supporting his claimed beating and his contention of planted evidence for whatever purposes he desired to make of it; 2) the jury heard the evidence defendant wished to elicit from the officers who allegedly beat defendant, and thus any error was harmless beyond a reasonable doubt; 3) because the only purpose of the arranged meeting at issue was for defendant to distribute drugs, the police had probable cause to believe that evidence relevant to the drug crime would be found in the vehicle; 4) the government presented sufficient evidence to establish that defendant's possession of a loaded firearm was in furtherance of the underlying drug crime; and 5) there was no evidence that the district court committed procedural error by treating the advisory Guidelines as mandatory.

Mitec Ptnrs., LLC v. U.S. Bank Nat'l. Assn., No. 09-1706, involved an action alleging fraud and negligent misrepresentation based on defendant's failure to disclose a lienholder agreement with the Small Business Administration before selling certain loans to plaintiff.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) plaintiff presented no evidence that defendant's implied representation, not apparent from the face of the letter of intent, was false when made, much less knowingly false; 2) plaintiff's alleged reliance on defendant's representations was not justified; and 3) the alleged misrepresentation concerned information incidental to the underlying financial transaction.

In US v. Furqueron, No. 09-2277, the Second Circuit vacated defendant's firearm possession sentence, on the ground that defendant's conviction for escape from a penal institution, in violation of Minnesota Statutes sections 609.485 subdivisions 2(1) and 4(1), constituted a crime of violence for purposes of the Sentencing Guidelines.

Barrett v. Rhodia, Inc., No. 09-3115, involved an action alleging that plaintiff suffered permanent injury while working with a chemical manufactured by defendant.  The court of appeals affirmed summary judgment for defendant, on the ground that the district court did not err in excluding plaintiff's expert witnesses because they were not qualified to testify about the source and concentration of plaintiff's hydrogen sulfide exposure.

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In US v. Rainey, No. 07-3775, the court of appeals affirmed defendant's sentence for conspiracy to distribute cocaine base, distribution of cocaine base, and possession with intent to distribute cocaine base, on the ground that, because there was no showing that the U.S. Attorney's Office knew of an address change for defendant, the U.S. Attorney properly served defendant by mailing notice to the jail where defendant was incarcerated.

Torgerson v. City of Rochester, No. 09-1131, involved a Title VII action against a fire department claiming that defendant refused to hire plaintiffs for national origin and gender reasons.  The Eighth Circuit affirmed summary judgment for defendant in part, holding that, because plaintiff alleged he was discriminated against based on his national origin, not race, he could not sustain a 42 U.S.C. section 1981 claim.  However, the court reversed in part, holding that plaintiffs created the requisite inference of unlawful discrimination under a McDonnell Douglas analysis, including sufficient evidence of pretext.

In US v. Marquez, No. 09-1743, the Eighth Circuit affirmed defendant's conviction and sentence for conspiracy to distribute marijuana, on the grounds that 1) there was no reason to conclude that defendant lacked the capacity to waive his Miranda rights, or that his waiver was anything but knowingly, voluntarily, and intelligently given; 2) a person traveling via automobile on public streets had no reasonable expectation of privacy in his movements from one locale to another; 3) defendant failed to demonstrate that admission of a firearm was unfairly prejudicial; and 4) the record contained substantial evidence that it was reasonably foreseeable to defendant that the conspiracy would transport at least 1,000 kilograms of marijuana.

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In US v. Colbert, No. 08-3243, the court of appeals affirmed defendant's possession of child pornography conviction, holding that 1) although the search warrant affidavit was not a model of detailed police work, it set forth a number of specific facts and explains the investigation that took place; 2) the state court judge could reasonably have concluded that the facts in the affidavit established a fair probability that child pornography would be found in defendant's apartment; and 3) there is no indication that the state court judge failed to perform his proper judicial function or that the officers in this case acted other than in good faith when they carried out the search.

In US v. Williams, No. 09-1939, the Eighth Circuit affirmed defendant's conviction and sentence for conspiracy to possess with the intent to distribute MDMA and money laundering, on the grounds that 1) there was sufficient evidence that defendant wanted not only to shield himself from reporting requirements but also to actively conceal the nature or source of the funds; 2) the district court did not abuse its discretion by providing the jury with an instruction that did not define "proceeds" as the profits of the drug trafficking operation; 3) there was no clear error in the district court's calculation of drug quantity attributable to defendant; and 4) the district court made an individualized assessment in sentencing based on all facts presented, addressing defendant's proffered information in its considerations of the 18 U.S.C. section 3553(a) factors.

Litvinov v. Holder, No. 09-2351, involved a petition for review of the BIA's order affirming the immigration judge's (IJ) denial of petitioners' application for asylum and withholding of removal.  The Eighth Circuit denied the petition, on the ground that 1) the IJ's decision stated the accurate legal standard for asylum; 2) all that petitioners presented was generalized, subjective evidence that they genuinely feared persecution upon their return to Belarus; and 3) a reasonable fact finder would not be compelled to find that petitioners had a well-founded fear of persecution based on the evidence presented at the hearing.

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Nikolas v. Omaha, No. 09-1679, concerned an action against the City of Omaha and its Planning Department Code Inspector, asserting federal constitutional claims under 42 U.S.C. section 1983 and an inverse condemnation claim under state law.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) the practical effect of plaintiff's argument -- that neither the County nor the City had jurisdiction to take action against a serious health and safety hazard on his property -- was contrary to manifest legislative intent; 2) the alleged littering was prohibited by the city ordinance at issue long prior to its occurrence; 3) if action taken pursuant to the ordinance violated Fourth Amendment warrant requirements, the resulting criminal prosecution may be tainted, but that does not render the authorizing statute unconstitutional; and 4) an inspector who was lawfully on the premises and who saw an apparent public health and safety violation from the exterior of a detached structure did not need a warrant before looking in the window to confirm or refute the apparent violation.

White v. McKinley, No. 09-1945, involved a civil rights action challenging plaintiff's prosecution, conviction, re-prosecution, and eventual acquittal for the alleged molestation of his adopted daughter.  The court of appeals affirmed judgment for plaintiff, on the grounds that 1) defendant was not permitted to relitigate the issue of qualified immunity; 2) defendant failed to offer any actual evidence -- expert or otherwise -- that plaintiff, a convicted child molester, would have been released on bond pending his re-trial; 3) the district court did not abuse its discretion in prohibiting defendant from eliciting testimony from the prosecutor in plaintiff's case as to whether defendant had testified correctly during his deposition, as the jury heard defendant's own testimony that he believed that he had testified correctly; and 4) the punitive damages award amounted to approximately seven percent of the actual damages, and thus there was no plain error in the punitive damages award.

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Yon v. Principal Life Ins. Co., No. 08-3484, concerned an action alleging that plaintiff was wrongfully terminated in violation of Iowa public policy, the Fair Labor Standards Act, the Family Medical Leave Act, and the Iowa Wage Payment Collection Act.  The court of appeals affirmed summary judgment for defendant, on the ground that there was no support in the record for plaintiff's allegation that he was subjected to an escalation of adverse actions in response to his complaints.

In US v. Stenger, No. 09-1330, the Eighth Circuit affirmed defendants' convictions for bank robbery and use of a firearm in relation to a crime of violence, holding that 1) defendant produced no objective evidence that the government acted with an improper or vindictive motive; 2) the other robberies as to which the government adduced evidence were sufficiently similar to the charged crime to establish an identity inference and support admission of the evidence for that purpose; 3) nothing in the record indicates that the government purposely withheld information about a witness in order to create an unfair advantage at trial; and 4) the evidence was sufficient to establish that defendant carried a real firearm.

Public Water Supply Dist. No. 3 v. City of Lebanon, No. 09-2006, concerned an action by a public water district against nearby City of Lebanon, Missouri, alleging that the city was illegally providing water and sewer services to customers within the district's boundaries.  The court of appeals affirmed summary judgment for defendant in part, on the grounds that 1) the city's continuing to provide service to customers it began serving before the district obtained a loan from the U.S. Department of Agriculture did not violate 7 U.S.C. section 1926(b); and 2) "the service provided or made available" in section 1926(b) was best interpreted to include only the type of service financed by the qualifying federal loan.  However, the court reversed in part, on the ground that the district court misapplied the "made service available" test by improperly focusing on the preferences of the potential recipient of the service.

Northport Health Servs. v. Rutherford, No. 09-2433, involved actions to compel arbitration of state law tort claims arising out of the treatment of defendants' decedents at nursing homes.  The court of appeals reversed the district court's grant of defendants' motion to vacate the district court's order compelling arbitration, holding that Vaden v. Discover Bank, 129 S. Ct. 1262 (2009), did not implicitly overrule the otherwise on-point decisions in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), and Advance America Servicing of Arkansas v. McGinnis, 526 F.3d 1170 (8th Cir. 2008).

In US v. Davis-Bey, No. 09-2851, the court of appeals affirmed defendant's access device fraud sentence, holding that 1) the district court simply made no clearly erroneous factual determinations nor abused its discretion in an assessment of culpability; 2) any sentencing disparity was not "unwarranted" because defendant and his co-conspirator were not similarly situated defendants; and 3) the district court's comment was clearly and simply an explanation for why a within-range or shorter sentence would have been inadequate in this case.

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Sentencing Guidelines Interpretation Issue, and ERISA Matter

US v. Brown, No. 09-2296, concerned defendant's appeal following the district court's grant of his motion for a reduction in sentence pursuant to 18 U.S.C. section 3582(c)(2) and the 2008 Guidelines amendments, which retroactively reduced base offense levels for particular offenses involving cocaine base.  The court of appeals affirmed on the ground that, in section 3582(c)(2) proceedings, a district court lacks authority to reduce a defendant's sentence below the amended Guidelines range, and such proceedings did not constitute a full resentencing of the defendant.

Manning v. Am. Repub. Ins. Co., No. 09-2625, involved an ERISA action challenging the denial of plaintiff's short-term disability benefits.  The court of appeals affirmed summary judgment for defendant on the grounds that 1) the language of the plan defined who was an Approved Health Care Provider, and a physician assistant was not an Approved Health Care Provider; 2) defendant reasonably denied plaintiff's claim for insufficient evidence of a medically certified health condition; and 3) defendant's interpretation of the plan requiring objective medical evidence did not constitute a procedural irregularity and did not trigger a less deferential standard of review.

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In US v. Adams, No. 08-3920, the court of appeals affirmed defendant's firearm possession conviction, holding that 1) how defendant used and controlled the weapon under similar circumstances was directly relevant to the charged offense; 2) because defendant argued that the testimony at trial changed the date of the offense, not the offense charged, no constructive amendment to the indictment occurred; 3) the properly admitted evidence established both defendant's dominion and control over the location where the firearm was found out in the open as well as his dominion and control over the weapon itself; and 4) the district court did not clearly err in finding that the prosecution's explanations for its peremptory strikes were race-neutral.

Loefer v. US, No. 09-1651, involved a drug conspiracy prosecution, in which the Eighth Circuit affirmed the denial of defendant's motion for relief from judgment under 28 U.S.C. section 2255.  The court of appeals held that prior counsel's testimony from the evidentiary hearing indicated that his decision not to object to the relevant portions of the presentence report was a well-reasoned, tactical decision, and thus prior counsel's representation was not ineffective.

In US v. Muhammad, No. 09-2699, the court of appeals affirmed defendant's conviction for aiding and abetting the armed robbery of a credit union, on the grounds that 1) the police's pat-down search stayed within the bounds of Terry, and the Fourth Amendment permitted the police to remove an object from defendant's pocket; and 2) the police had probable cause to believe that the cash protruding from defendant's wallet was evidence of the robbery.

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Carlson v. Astrue, No. 09-1123, concerned petitioner's appeal from a judgment upholding the Commissioner of Social Security's denial of petitioner's application for supplemental security income.  The court of appeals affirmed, on the grounds that 1) the Administrative Law Judge's (ALJ) consideration of petitioner's physician's signed residual functional capacity assessment satisfied the obligation to receive an expert opinion on equivalence; 2) it was reasonable for the ALJ to conclude that petitioner's control of his diabetes prevented future episodes of ketoacidosis with vomiting and nausea, and thereby limited the severity of the impairment; and 3) substantial evidence supports the ALJ's conclusion that petitioner's impairments did not equal the severity of all the criteria in Listing 5.08.

In US v. Woods, No. 09-1364, the court of appeals affirmed defendant's drug conspiracy sentence, holding that 1) the district court properly calculated defendant's new advisory Guidelines range, as required by 18 U.S.C. section 3553(a)(4), and accounted for the 15% substantial assistance downward departure the court previously granted; and 2) while the district court would have been within its discretion to consider further the crack versus powder cocaine disparity in arriving at defendant's sentence, the district court was not required to apply this consideration by lowering defendant's sentence further.

In US v. Yang, No. 09-1572, the Eighth Circuit affirmed defendant's marriage fraud conviction, holding that the circumstantial evidence was sufficient to justify a reasonable jury's conclusion that defendant knowingly entered into a marriage for the purpose of evading the immigration laws, and that he knowingly entered into an agreement for that purpose.

In re: Freier, 09-1916, concerned a bankruptcy adversary action seeking a determination that defendant was personally liable for a state-court money judgment rendered against a corporation wholly owned by defendant.  The Eighth Circuit reversed the bankruptcy appellate panel's reversal of the bankruptcy court's order holding defendant liable for the corporation's debt, on the grounds that 1) defendant's material promise to repay the debt in the future, made with the intent to defraud and without the intent to perform constituted actionable fraud; and 2) the evidence supported the bankruptcy court's finding that plaintiff relied on defendant's representation about taking draws.

Burkhart v. Am. Railcar Indus., Inc., No. 09-2077, involved a sexual harassment and retaliation action.  The Eighth Circuit affirmed summary judgment for defendants, on the grounds that 1) plaintiff's harassment claims were untimely because all of the actions about which plaintiff complained that occurred within 180 days of her filing were alleged to have been retaliation for complaining to the human resources manager, not harassment based on sex; and 2) even if plaintiff could establish a prima facie retaliation case, no reasonable factfinder could conclude that defendant's proffered reason for firing her was pretextual as required in the McDonnell Douglas framework.

In US v. Turner, No. 09-2864, the court of appeals affirmed defendant's drug conspiracy sentence, on the ground that the district court's determination that defendant was part of a conspiracy involving more than 100 kilograms of marijuana was correct, whether the court of appeals applied the standard for reviewing sufficiency of the evidence after a bench trial, or the clearly erroneous standard for reviewing drug quantity findings at sentencing.

In US v. Bastian, No. 09-3111, the Eighth Circuit affirmed defendant's child pornography conviction and sentence, holding that 1) defendant's alleged dissatisfaction with his attorney did not negate the voluntariness of his plea, and the district court properly found that it did not provide a "fair and just reason" for withdrawing it; 2) defendant's sentencing enhancement did not violate the separation-of-powers doctrine; 3) the district court properly found that defendant's reluctance to plead guilty and attempt to withdraw his plea showed he had not accepted responsibility; and 4) the court of appeals did not need to decide whether the district court erred in applying a "thing of value" enhancement because any error was harmless.

In US v. Manes, No. 09-3163, the Eighth Circuit affirmed defendants' drug conspiracy conviction, on the grounds that 1) the Fourth Amendment was not violated when a law enforcement officer briefly detained an individual to investigate circumstances which gave rise to a reasonable suspicion that criminal activity was underway; 2) sufficient evidence was adduced at trial for the jury reasonably to find beyond a reasonable doubt that defendant had knowingly agreed with others to purchase and distribute methamphetamine; 3) an instruction requested by defendant did not correspond with the theory of defense he sought to prove at trial; and 4) through extensive cross examination, defendant's counsel made the jury aware that a certain photograph did not reflect the location of the drugs and money at the time of the stop, thus removing any undue prejudice due to the photograph's admission.

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Allen v. US Air Force, No. 08-3450, concerned an action against the Air Force and nineteen individuals in the district court for the District of North Dakota, claiming that plaintiff's Sixth Amendment speedy trial rights were violated in a court-martial.  The court of appeals affirmed summary judgment for defendants, holding that: 1) the military court fully and fairly considered the issue of whether the charges preferred against plaintiff on February 18, 2004, were dismissed by the general court-martial convening authority on August 27, 2004; 2) even if plaintiff was correct that the military court should have included the entire period from the first preferral of charge and specifications in February 2004, to the court-martial in March 2006, in its speedy trial analysis, plaintiff still would not be entitled to relief under the Sixth Amendment for violation of his speedy trial rights.

In US v. Garcia, No. 09-1596, the court of appeals affirmed defendant's sentence for failing to register as a sex offender, holding that 1) defendant was, at all times, properly informed of the correct potential term of ten years' incarceration for his offense; 2) defendant failed to object to the presentence report statements that differed from the advice he previously received; and 3) it was reasonable to infer that Garcia desired to avoid detection by law enforcement ultimately to avoid any of the countless burdens attendant to registration.

In US v. Cook, No. 09-1901, the Eighth Circuit affirmed defendant's conviction for unlawful possession of ammunition as a convicted felon, on the grounds that 1) considering the evidence as a whole, the court could not say that no reasonable jury could have found Cook guilty; and 2) although it appeared that the district court mistakenly referred to the earlier version of an instruction, the instructions as a whole were not plainly erroneous.

Nelson v. Shuffman, No. 09-2225, involved an action under 42 U.S.C. section 1983 alleging thirteen officials at the Missouri Sexual Offender Treatment Center violated plaintiff's constitutional rights.  The court of appeals affirmed the denial of summary judgment to defendants on the grounds that 1) it was readily apparent that plaintiff faced an objectively serious risk of harm by being placed in a room with another sex offender; 2) a reasonable jury could find that defendants recklessly disregarded an objectively serious risk of harm to plaintiff by placing him in the same room as the assailant; 3) based on the evidence described by the district court, a jury could conclude plaintiff had a serious medical need and defendant deliberately disregarded the need by failing to provide psychological treatment she prescribed; and 4) the facts found by the district court provided sufficient evidence for a jury to conclude that plaintiff's transfer was causally related to his exercise of his right to file the abuse and neglect charge and the grievances.

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Dispute Over Indian Land Borders, and Criminal Case

Yankton Sioux Tribe v. Podhradsky, No. 08-1441, involved an action by the Yankton Sioux Tribe seeking a declaratory judgment that all land not ceded to the U.S. in 1894 remained part of the Sioux Reservation under the jurisdiction of the Tribe and the federal government.  The court of appeals affirmed in part the district court's order that some 37,600 acres of trust land remained part of the reservation and that land continuously owned in fee by individual Indians also qualified as reservation, holding that 1) defendants' evidence was not truly "new" in the sense that it could not have reasonably been developed and presented in earlier stages of this litigation; 2) it was clear from the circumstances surrounding the Tribe's agreement to sell its surplus lands that the Tribe did not intend to relinquish immediate jurisdiction over the allotments and that it would not be required to part with them; and 3) the district court did not err in its conclusion that all lands taken into trust by the Secretary of the Interior fell within the jurisdiction of the Yankton Sioux Reservation and qualified as Indian country under 18 U.S.C. section 1151(a).  However, the court of appeals vacated the district court's order in part, on the ground that a number of potentially important facts were missing with respect to Indian owned fee lands continuously held by tribal members.

In US v. Hamilton, 09-2687, the court of appeals affirmed defendant's sentence for being a felon in possession of an explosive device and possession of an unregistered destructive device, holding that defendant forfeited his right to challenge the classification of a prior state conviction as a crime of violence.

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Voting Rights Act Matter Involving Indian Vote Dilution

Cottier v. City of Martin, No. 07-1628, concerned a Voting Rights Act action claiming that a city ordinance establishing boundaries for three voting wards within the city diluted the votes of Indians in each ward.  The court of appeals affirmed judgment for defendant, on the ground that the district court did not commit clear error in finding that the plaintiffs failed to meet the third Gingles precondition, i.e., that the white majority in the city voted sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate in city council elections.

As the court wrote:  "This appeal involves a claim that the City of Martin, South Dakota, and several of its officials violated Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973(b). The plaintiffs contend that the defendants adopted and maintained an ordinance that impaired the ability of Native American Indians to participate in the political process and to elect representatives of their choice in city elections. Sitting en banc, we conclude that the district court properly dismissed the action in its order of March 22, 2005, which was reversed by a panel of this court. We therefore vacate the court's later judgment of February 9, 2007, and remand with directions to dismiss the action."

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In US v. Hall, No. 09-1263, the court of appeals affirmed defendant's conviction and sentence for mail and wire fraud, holding that 1) evidence regarding one of the trusts involved in the charged fraudulent scheme was inextricably intertwined with the indictment and thus properly admitted; and 2) even if defendant's website did not convince any of defendant's victims to invest and was not widely viewed, the district court nonetheless did not err in applying the mass-marketing enhancement.

In US v. Statman, No. 09-1452, the Eighth Circuit affirmed defendants' wire fraud sentences, on the grounds that 1) nothing in 18 U.S.C. section 3553(a) or in the Booker remedy opinion required robotic incantations that each statutory factor had been considered; 2) the district court considered the relevant factors and provided a reasoned basis for its sentence; and 3) the district court did not clearly err in relying on the detailed testimony of Arkansas Development Finance Authority employees, or in adopting the government's proposed restitution figure.

In US v. Buchanan, No. 09-2569, the court of appeals affirmed defendant's drug and firearm possession convictions, holding that 1) the imprint on defendant's gun, and the matching markings on defendant's key and safe inscription were not hearsay; 2) the district court appropriately treated defendant's safe as chattel, and thus the best evidence rule did not apply; 3) defense counsel did not move for a continuance or argue to the district court that if he had received earlier notice of the government's expert evidence, then he would have been able to move for its exclusion or present a more effective defense; and 4) the evidence cited by the district court sufficiently established that defendant constructively possessed the drugs.

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Praetorian Ins. Co. v. Site Inspection, LLC, No. 09-2008, concerned an action by an insurer against a property inspector claiming that the insurer issued a policy to a third party based on an inadequate inspection by defendant.  The court of appeals affirmed summary judgment and an award of attorney's fees for defendant, on the grounds that 1) the only affidavit submitted by plaintiff in opposition to summary judgment was purely self-serving; 2) the parties' agreement contained an enforceable indemnification clause; and 3) this situation was clearly one of these unique circumstances under Missouri law where attorney's fees were not specified in the contract, but where defendant was defending a suit brought against it in reference to the matters against which it was indemnified.

As the court wrote:  "The district court (1) granted Site's motion for summary judgment on Praetorian's claims, finding that no genuine issue of material fact existed as to whether Praetorian would have cancelled Vantage's policy had Site reported the inadequacies, (2) denied Praetorian's cross motion for summary judgment on its own claims, and (3) granted Site's motion for summary judgment on its counterclaims. The court found that "Site's exculpatory clause and indemnity provision are enforceable contractual provisions that relieve Site from any liability." (D. Ct. Or. 24.) Site moved for damages on its counterclaim and the district court awarded Site $379,520.12 in damages, attorney's fees, and costs. Praetorian appeals."

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