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SCOTUS Will Hear At Least 5 Cases From 8th Cir. This Term

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By Mark Wilson, Esq. on October 09, 2014 5:47 PM

Predictably, the Ninth Circuit leads the pack so far in cert. grants with eight, but who's No. 2? If you guessed the Fifth Circuit, you'd be wrong: It's the Eighth!

That many from North Dakota? Iowa? Arkansas? Yup, the Court will hear five cases from the Eighth Circuit this term (at least so far). Here they are:

SCOTUS Week at FindLaw

Larry D. Jesinoski v. Countrywide Home Loans, Inc. (Oral Argument: November 4)

Federal law allows a mortgagor to rescind a mortgage within three business days of consummating the loan or receiving the required Truth in Lending Act disclosures. The right lasts for three years. The Jesinoskis mailed a letter three years to the day after consummating the loan, notifying Countrywide that they were rescinding the loan on their home in Eagan, Minnesota (home of Thomson Reuters, FindLaw's parent company!). The bank refused to accept the rescission, and one year and one day later, they sued.

In a short per curiam order, the Eighth Circuit affirmed the district court's dismissal of the case because a recent Eighth Circuit case already addressed the issue. Two judges concurred but said the prior case got the law wrong. The Supreme Court must address a circuit split as to whether a letter is sufficient notice to the creditor or a lawsuit must be filed to exercise the right of rescission.

Our previous coverage:

Dennys Rodriguez v. United States (Oral Argument: TBD)

A police officer pulled Rodriguez over after his car swerved onto the highway shoulder, then back onto the road. The officer then called for backup, and when backup came 7 to 8 minutes later, asked for permission to walk his drug-sniffing dog around the car. Despite Rodriguez's refusal, the officer walked the dog around the car, and the dog alerted him to the presence of drugs.

Rodriguez argued that the initial stop was lawful, but became unconstitutionally prolonged when the officer used a drug dog without reasonable suspicion to continue to the traffic stop. The Eighth Circuit parsimoniously concluded that this 7- to 8-minute delay was reasonable, and consequently, the officer didn't need further reasonable suspicion to continue the stop. The Court will address whether the admittedly completed traffic stop can be prolonged without reasonable suspicion.

Moones Mellouli v. Eric Holder (Oral Argument: TBD)

Aliens legally present in the United States can be deported for breaking the law. This includes state and federal drug laws, except personal possession of marijuana. Mellouli was convicted of possessing drug paraphernalia, but the record of conviction didn't say what the conviction was for. (The drugs were Adderall, and the "paraphernalia" was his sock, where they were hidden. Yeah, the Eighth Circuit was confused, too.)

The Eighth Circuit said that didn't matter; the government introduced the original complaint, charging him with possessing Adderall, which was enough to meet its burden of proving the crime by clear and convincing evidence. The Supreme Court must address whether the government needs to prove the connection between a paraphernalia conviction and a federally scheduled drug in order to deport a noncitizen.

Check out our previous post about this case:

B&B Hardware, Inc. v. Hargis Industries, Inc. (Oral Argument: December 2).

B&B makes a product called "Sealtight" that's used in the aerospace industry. Hargis makes screws marketed as "Sealtite." After 15 years of litigation, a jury issued a verdict in favor of Hargis on a trademark infringement claim, finding no likelihood of confusion.

B&B claimed that the Trademark Trial and Appeals Board's 2007 denial of a trademark to Hargis precluded the district court from ruling on the merits; effectively, the TTAB had already decided the case. Not true, said the Eighth Circuit. The question for the Supreme Court is thus whether a TTAB determination precludes litigating a case where one of the elements is trademark confusion.

Our prior coverage:

Samuel James Johnson v. United States (Oral Argument: November 5)

Johnson was convicted under the Armed Career Criminal Act. He argued that his convictions for attempted "simple" robbery and possessing a short-barreled shotgun weren't violent felonies for ACCA purposes. He also said the ACCA was unconstitutionally vague.

The Eighth Circuit upheld the ACCA conviction and refused to address the constitutionality argument, finding that it was substantially similar to previous arguments that failed before both the Eighth Circuit and the Supreme Court. There's only one question for the court here, and that's whether the shotgun counts.

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