alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
1 The Honorable Donald E. O’Brien, United States District Judge for the

Northern District of Iowa.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-3201

___________ Gary L. Massey, * * Appellant, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. United States of America, * * [UNPUBLISHED] Appellee. *

___________ Submitted: December 7, 1999 Filed: December 23, 1999

___________ Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.

___________ PER CURIAM. Gary L. Massey appeals the district court’s 1 order denying his 28 U.S.C. § 2255 motion to vacate his drug-conspiracy sentence. In his motion, he asserted ineffective assistance based on counsel’s failure to investigate his mental competency during the conspiracy, and counsel’s failure to investigate Massey’s withdrawal from the conspiracy. We affirm.-2-

On appeal, Massey argues that his mental condition prevented him from entering the conspiracy in the first place and that he withdrew before the conspiracy was ever formed. These arguments are a variation on those he raised below, but giving Massey the benefit of the doubt, we will assume his appeal arguments were properly preserved.
We conclude, however, after carefully reviewing the record, that Massey’s arguments fail. First, he has not shown that, but for his counsel’s error in failing to investigate a mental incompetency defense, he would not have pleaded guilty and wouldhave insisted on going to trial with such a defense. See Matthews v. United States , 114 F.3d 112, 113-14 (8th Cir. 1997) (test for challenges to guilty pleas based onineffective assistance of counsel), cert. denied , 118 S. Ct. 730 (1998). Specifically, Massey has made no showing that obtaining the medical records--which he faults counsel for not obtaining--would have yielded grounds for a defense that he was unable to form the criminal intent necessary to enter the conspiracy.
As to Massey’s argument that counsel failed to investigate a conspiracywithdrawal defense, the record does not support that he withdrew before the conspiracy was formed, or for that matter, that he ever actually withdrew by clearly communicating to his co-conspirators an intent to withdraw or by reporting the conspiracy to police. See UnitedStates v. Askew , 958 F.2d 806, 812-13 (8th Cir. 1992) (defendant must demonstrat e he made clean breast to police or communicated withdrawal in manner re asonably calculated to reach co-conspirators); UnitedStates v. Francis , 916 F.2d 464, 466 (8th Cir. 1990) (gist of offense of drug conspiracy is unlawful agreement; once agreement

is made conspiracy is complete), cert. denied , 500 U.S. 926 (1991). Thus, Massey can show neither deficient performance, nor resulting actual prejudice, arising out of counsel’s failure to investigate and raise this defense. Accordingly, we affirm the judgment of the district court.-3-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
03C5833 Lorillard Tobacco Co. vs. A & E Oil, Inc. Page 1 of 1

Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

William T. Hart Sitting Judge if Other

than Assigned Judge

CASE NUMBER 03 C 5833 DATE 2/3/2005

CASE

TITLE

Lorillard Tobacco Co. vs. A & E Oil, Inc.

DOCKET ENTRY TEXT:

Defendants' motion for enlargement of time to file their answer brief [49] is granted. Plaintiff's motion to

freeze assets of defendant A & E Oil, Inc. [47] is granted in part and continued in part to March 23, 2005 at

11:00 a.m. 

Docketing to mail notices.

O[ For further details see text below.]

By February 16, 2005, defendants shall produce to plaintiff (a) bank statements, including canceled checks

and wire transfer records, for all bank accounts to which A & E Oil, Inc., Thomas Kuruvilla, and Emmanuel

Joseph are signatory, from July 2003 to the present, and (2) any and all documents pertaining to the sale of

the gas station formerly owned by A & E Oil, Inc. Prior to the March 23, 2005 status hearing, the parties

shall attempt to reach agreement as to an asset freeze. If no agreement is reached prior to that date, the parties

shall be prepared to advise the court regarding the potential damage award in this case, the sales price for the

gas station, net proceeds from the sale, and how the sales proceeds have been used or reinvested.

Courtroom Deputy

Initials:

cw

Case: 1:03-cv-05833 Document #: 52 Filed: 02/03/05 Page 1 of 1 PageID #:215
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<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AS OF DECEMBER 31, 1998, AND THE CONSOLIDATED
STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1998, AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
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<INTEREST-EXPENSE>                             120,119
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<INCOME-TAX>                                     3,140
<INCOME-CONTINUING>                           (46,277)
<DISCONTINUED>                                       0
<EXTRAORDINARY>                                (7,360)
<CHANGES>                                            0
<NET-INCOME>                                  (53,637)
<EPS-PRIMARY>                                        0
<EPS-DILUTED>                                        0
        

</TABLE>
UN PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18
- 4520

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. SAMANTHA WINTER , Defendant

- Appellant

.

Appeal from the United States District Court for the Eastern District of Virginia , at Alexandria

. Liam O’Grady , District Judge. ( 1:18

- cr - 00007

- LO

- 1 )

Submitted : April 25, 2019 Decided: May 3, 2019

Before NIEMEYER and HARRIS , Circuit Judges , and SHEDD, Senior Circuit Judge

.

Affirmed by un published per curiam opinion

. Melinda VanLowe, LAW OFFICE OF MELINDA L. VANLOWE, Fairfax, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Colleen E. Garcia, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Following a jury trial, Samantha Winter was convicted of possession of a firearm by a prohibi ted person, making a false statement in connection with the purchase of a firearm, and making a false statement to a licensed firearm dealer. The district court sentenced Winter to 2 years’ probation on each count to run concurrently, with the condition t hat she serve 15 days of intermittent incarceration, complete 80 hours of community service, participate in substance abuse and mental health treatment, and pay the $300 special assessment. On appeal, Winter contends that the district court erred by denyi ng her motions to suppress statements she made and to exclude evidence recovered during a traffic stop of her vehicle while it was being driven by Devon Byrd, and she challenges the admission of this evidence during her trial. We review the factual findi ngs underlying the denial of a motion to suppress for clear error and the court’s legal conclusions de novo. United States v. B ullette , 854 F.3d 261, 265 (4th Cir. 2017). Additionally, we review the district court’s admission of evidence for an abuse of discretion. United States v. Lighty , 616 F.3d 321, 351 (4th Cir. 2010) With these standards in mind, we have considered carefully the arguments raised by Winter on appeal and conclude for the reasons stated by the district court that the court properly d enied the motions to suppress and to exclude evidence. United States v.
Winter , No. 1 :1 8

- cr - 00 0 07

- LO

- 1 ( E .D. Va. Mar. 20, 2018 ). Additionally, we find no abuse of discretion by the trial court in admitting the challenged evidence. Accordingly, we affirm the judgment of the district court entered on July 20, 2018. We dispense with3 oral argument because the facts and legal contentions are adequately presented in the materials before th is court and argument would not aid the decisional process.
AFFIRMED
#### IRWIN v. HAINES. CASKELL v. COWING.

(Supreme Court, Appellate Term, First Department.

January 31, 1896.)

No opinion. Appeals dismissed, with costs.
|        |                      |        |        |                             |
|--------|----------------------|--------|--------|-----------------------------|
|   | EXECUTIVE            |   |   | COLUMBIA LABORATORIES, INC. |
|   |                 |   |   |                        |
|   | /S/Frank C, Condella |   |   | /S/ Stephen G. Kasnet       |
|   | Frank C, Condella    |   |   | /S/ Stephen G. Kasnet       |
|   |                 |   |   |                        |
| Date:  | March 1, 2011        |   | Date:  | March 1, 2011               |
|   |                 |   |   |                        |
|   |                 |   |   |                        |
**EXHIBIT 23.2**

**CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM**

We consent to the incorporation by reference in Registration Statement Nos. 333-20165, 333-20167, 333-64083, 333-68176, 333-152573, and 333-190854 on Form S-8of our report dated April 27, 2012 (March 18, 2013 as to the presentation of a separate consolidated statement of comprehensive income for 2011), relating to the consolidated financial statements and financial statement schedule of Northwest PipeCompany and subsidiaries for the year ended December 31, 2011 (which report expresses an unqualified opinion), appearing in this Annual Report on Form 10-K/A of Northwest Pipe Company for the year ended December 31, 2013. 

/s/ Deloitte & Touche LLP 

Portland, Oregon 

September 4, 2014
#### The People of the State of New York, Respondent, v Gabriel Kinard, Appellant.

[946 NYS2d 504]

— Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Grella, J.), rendered April 20, 2011, convicting him of robbery in the first degree (nine counts), robbery in the second degree (two counts), criminal possession of a weapon in the second degree (two counts), assault in the second degree (two counts), and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the verdict was against the weight of the evidence in light of, inter alia, certain alleged inconsistencies in the testimony of the People’s witnesses. Upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of the evidence *(see People v Delamota,*18 NY3d 107, 116-117 *977[2011]; *People v Romero,*7 NY3d 633 [2006]; *People v Marquez,*82 AD3d 1123, 1123-1124 [2011]; *People v Brookins,*184 AD2d 567 [1992]).

The defendant’s contention that various comments made by the prosecutor during his summation were improper and require reversal is unpreserved for appellate review, as the defendant did not object to any of the remarks at issue *(see People v Lee,*34 AD3d 696 [2006]; *People v Nieves,*2 AD3d 539, 540 [2003]). In any event, most of the challenged remarks constituted fair comment on the evidence or were responsive to defense counsel’s summation *(see People v Halm,*81 NY2d 819, 821 [1993] ; *People v Thompson,*81 AD3d 670, 672-673 [2011], *lv granted*18 NY3d 998 [2012]; *People v Nieves,*2 AD3d at 540; *People v Spivey,*305 AD2d 135 [2003]). To the extent that any of the challenged remarks were improper, they constituted harmless error *(see People v Thompson,*81 AD3d at 673; *People v Franklin,*64 AD3d 614, 615 [2009]; *People v Lee,*34 AD3d at 697).

Contrary to the defendant’s contention, the Supreme Court, which was entitled to rely on its own observations of and interactions with the defendant, providently exercised its discretion in denying the defendant’s application for a competency examination *(see*CPL 730.30 [1]; *People v Morgan,*87 NY2d 878, 879-880 [1995]; *People v Tejada,*36 AD3d 455, 456 [2007]; *People v Jordan,*21 AD3d 1039 [2005]). Dillon, J.P., Balkin, Belen and Chambers, JJ., concur.
<PAGE>   1




                                                                    EXHIBIT 23.1


                     CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS


The Board of Directors and Stockholders
InnerDyne, Inc.:

        We consent to incorporation by reference in Registration Statements No.
33-49628, 33-80022, 33-80032, 333-07859 and 333-58381 on Forms S-8 and
Registration Statements No. 33-96266 and 333-12801 on Forms S-3 of InnerDyne,
Inc. of our report dated January 29, 1999, relating to the balance sheets of
InnerDyne, Inc. as of December 31, 1998 and 1997, and the related statements of
operations, stockholder's equity and cash flows, for each of the years in the
three-year period ended December 31, 1998, which report appears in this Form
10-K of InnerDyne, Inc.


                                                          KPMG LLP


San Francisco, California
March 25, 1999
#### Romana MARTINEZ-SANDOVAL, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10-70766.

United States Court of Appeals, Ninth Circuit.

Submitted July 12, 2011.*

Filed July 22, 2011.

Romana Martinez-Sandoval, San Ber-nardino, CA, pro se.

Dana Michelle Camilleri, OIL, DOJ-U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief *932Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R.App. P. 34(a)(2).

MEMORANDUM **

Romana Martinez-Sandoval, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider, *Mohammed v. Gonzales,*400 F.3d 785, 791 (9th Cir.2005), and we deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Martinez-Sandoval’s July 20, 2009, motion to reconsider under 8 C.F.R. § 1003.2(b)(2) (“A party ... may not seek reconsideration of a decision denying a previous motion to reconsider.”).

We lack jurisdiction to consider Martinez-Sandoval’s ineffective assistance of counsel claim because she did not exhaust it before the BIA. *See Barron v. Ashcroft,*358 F.3d 674, 677-78 (9th Cir.2004).

We also lack jurisdiction to consider Martinez-Sandoval’s challenges to the agency’s underlying orders because this petition for review is not timely as to those orders. *See Singh v. INS,*315 F.3d 1186, 1188 (9th Cir.2003).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

**

 This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
#### Annette Mancuso, Appellant, and Anthony Mancuso, Respondent, v Linda B. Wilson, Defendant.

—In an action to recover damages for personal injuries, etc., arising out of a motor vehicle accident, plaintiff Annette Mancuso appeals from an order of the Supreme Court, Richmond County (Mc-Brien, J.), dated September 11, 1984, which directed her to appear for an examination before trial upon a specified date, and to submit to a physical examination within 30 days thereafter.

Order affirmed, with costs. Plaintiff Annette Mancuso shall submit to an examination before trial within 20 days after service upon her of a copy of the order to be made hereon, with notice of entry, and shall submit to a physical examination within 20 days after the date of the examination before trial, unless the parties shall agree otherwise. The examinations shall be held at times and places to be designated in notices of not less than 10 days, or at such other times and places as the parties may agree.

Plaintiffs Annette and Anthony Mancuso commenced an action against defendant Linda B. Wilson to recover damages for personal injuries, etc., arising out of an automobile accident. Subsequent to the filing of a note of issue in that action, defendant brought a counterclaim against Anthony Mancuso. Under these circumstances, it was not an abuse of discretion to afford the attorney for Anthony Mancuso on the counterclaim an opportunity to conduct further disclosure proceed*656ings against his coplaintiff Annette Mancuso in order to defend Anthony on that counterclaim, notwithstanding that the case had already been placed on the Trial Calendar *(see,*22 NYCRR 675.7). We pass on no other issue. Bracken, J. P., Rubin, Lawrence and Eiber, JJ., concur.
**Exhibit 10.76**

 

**AMENDMENT NO. 2**

**TO CONSULTING AGREEMENT BETWEEN**

**VARI-LITE INTERNATIONAL, INC. AND JOHN D.MAXSON**

 

This Amendment No. 2 to Consulting Agreement,dated as of June 30, 2002, is by and between Vari-Lite International, Inc. (the“Company”) and John D. Maxson (the “Consultant”).

 

# W I T N E S S E T H:

 

WHEREAS, the Company (formerly known asVari-Lite Holdings, Inc.) and the Consultant entered into that certainConsulting Agreement, dated as of July 1, 1995, as amended by that certainAmendment No. 1 to the Consulting Agreement, dated August 11, 1997 (as amended,the “Consulting Agreement”); and

 

WHEREAS, the Company has suffered a declinein its financial performance and management and the Board of Directors of theCompany have made recommendations for reducing expenses of the Company in orderto improve the Company’s financial performance; and

 

WHEREAS, the Compensation Committee of theBoard of Directors of the Company (the “Compensation Committee”) has determinedthat it is in the best financial interest of the Company to amend theConsulting Agreement; and

 

WHEREAS, the Consultant is a significantstockholder of the Company and agrees that it is in the best financial interestof the Company to amend the Consulting Agreement as proposed by the CompensationCommittee;

 

NOW, THEREFORE, in consideration of theforegoing and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereto hereby agree,effective as of the date hereof:

 

# 1.             Sections 3(a) and (b) of the Consulting Agreement arehereby deleted in their entirety.

 

# 2.             Except as amended hereby, the Consulting Agreement shallremain in full force and effect in accordance with its terms.

 

[The next following page is the signature page.]

 

----

 

IN WITNESS WHEREOF, the parties hereto haveexecuted this Agreement as of the date first above written.

 

 
|   | VARI-LITE  INTERNATIONAL, INC. |
|--------|--------------------------------|
|   |                           |
|   |                           |
|   | By:                            |   |
|   |                           | T. Clay  Powers, President |
|   |                           |
|   |                           |
|   | John D.  Maxson                |

 

2

----
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<PAGE>

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**Exhibit 32.1**

 

**CERTIFICATION PURSUANT TO SECTION 906OF THE SARBANES-OXLEY ACT OF 2002**

 

I, Tim Paterson-Brown,Chief Executive Officer of MGT Capital Investments, Inc. (the “Company”),certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C.Section 1350, that to the best of my knowledge:

 

(1)    the Annual Report on Form 10-Kof the Company for the year ended December 31, 2007, and 2006 (the “Report”)fully complies with the requirements of  Section 13(a) or15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d));and

 

(2)    the informationcontained in the Report fairly presents, in all material respects, thefinancial condition and results of operations of the Company.

 
|   | By:                     | /s/ TIM PATERSON-BROWN |
|--------|-------------------------|------------------------|
|   | Tim Paterson-Brown      |
|   | Chief Executive Officer |

 

March 17, 2008

 

E-4

----