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Family and Medical Leave Act Judgment for Plaintiff Affirmed, and Arbitration, Criminal and Employment Issues

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By FindLaw Staff on August 30, 2010 10:57 AM

In US v. Durham, No. 09-2951, the court affirmed in part defendant's sentence for knowingly receiving child pornography, holding that, if an oral sentence and the written judgment conflict, the oral sentence controls.  However, the court reversed in part on the ground that defendant presented "concrete evidence" of his ignorance of the pornography's distribution, and as a result, even under the stricter Dodd standard, the district court's application of the distribution enhancement was improper.

In US v. Townsend, No. 09-3095, the court affirmed defendant's sentence for possessing more than three grams of cocaine base after having two or more final convictions for state felony drug offenses, holding that 1) the district court provided ample explanation of its rationale for the sentence imposed; and 2) the district court specifically enumerated the 18 U.S.C. section 3553(a) factors in its lengthy sentencing colloquy and discussed those factors.

Bank of Am., N.A. v. UMB Fin. Servs., Inc., No. 09-3173, involved an appeal from a series of orders in which the district court declined to compel plaintiff to submit to arbitration and declined to stay litigation pending the outcome of such arbitration.  The court affirmed the orders on the grounds that 1) plaintiff never signed an agreement containing an arbitration clause, and the document plaintiff did sign, the employment agreement, did not incorporate the arbitration clause of the FINRA contracts by reference or otherwise; and 2) the court need not reach the question of waiver since the district court properly determined there was no existing right to arbitration in this case.

Murphy v. FedEx Nat'l LTL, Inc., No. 09-3473, concerned an action against plaintiff's former employer, claiming that defendant violated the Family Medical Leave Act (FMLA) when it fired her after representing to her that it had granted her leave.  The court affirmed judgment for plaintiff in part on the ground that a reasonable jury could find that plaintiff gave defendant adequate notice.  However, the court reversed in part on the ground that the district court's instructions omitted a fundamental requirement necessary for an employee to access the FMLA's protections, and thus a new trial was warranted.

In Nelson v. Norris, No. 08-2755, a prosecution for discharging a firearm from a vehicle, the court affirmed the dismissal of petitioner's habeas petition, holding that 1) the Arkansas Supreme Court specifically held that petitioner's state habeas petition was not properly verified because petitioner did not execute the verification; and 2) petitioner failed to pursue his rights diligently by not filing his habeas petition until nine months after the Arkansas Supreme Court denied rehearing.

In US v. Anderson, No. 09-1733, the court affirmed defendant's sentence for possession of crack cocaine with intent to distribute, holding that 1) defendant's conduct supported a reasonable inference that he might hide a gun he used in his drug trafficking operation in a location he controlled, though not in his name; and 2) the district court was aware of its discretion to consider a variance based on the crack/powder disparity and did not abuse its discretion in deciding not to exercise such discretion to grant defendant's requested variance.

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