Context: The Court also rejects Plaintiffs' argument that Travelers has waived its coverage defenses by violating the Claims Administration Statute, Fla. Stat. SS 627.426(2). The statute in relevant part precludes an insurer from denying coverage based on a particular coverage defense unless (1) the insurer gives a written reservation of rights within 30 days of when the insurer knew or should have known of a coverage defense, and (2) the insurer retains independent counsel, mutually agreeable to the parties, within 60 days. Fla. Stat. SS 627.426(2)(a), (b)(3). Strict compliance with the statute is required "unless actual notice to the insured of the insurer's position has occurred on a timely basis."

Mid-Continent Cas.Co. v. Basdeo, 742 F.Supp.2d 1293, 1332 (S.D.Fla.2010) (stating this proposition of law but finding no evidence that the insured in that case actually received a notice of reservation of rights or denial of coverage); see also Phoenix Ins. Co. v. McCormick, 542 So.2d 1030, 1031-32 (Fla. 2d DCA 1989) (actual notice was timely and finding strict compliance not required where the insured admits actual notice).


Context: We therefore find that two employment evaluations that have "areas" Plaintiff believes have "reflected poorly or less desirably on her performance" are insufficient to constitute an adverse employment action under Title VII. See Hay v. GMAC Mortg.

Corp., 2003 WL 22133801*6 (E.D.Pa.2003)(“Even a poor performance rating does not give rise to an adverse employment action unless it has a tangible effect on recipient’s employment”); see also Smart v. Ball State Univ., 89 F.3d 437, 442-43 (7th Cir.1996)(undeserved negative evaluations alone cannot be an adverse employment action).

"Even a poor performance rating does not give rise to an adverse employment action unless it has a tangible effect on recipient's employment"


Context: Fulltime employment does not necessarily contradict a 70% disability rating.

noting that "[a] veteran is deemed totally disabled if he suffers from an impairment that would 'render it impossible for the average person to follow a substantially gainful occupation,' even if the veteran applying for benefits is able, through exceptional ability or exertion, to work full time"

See e.g., Jarrard v. Dep’t of Justice, 669 F.3d 1320, 1321 (Fed.Cir. 2012) (80 percent rating qualifying for federal hiring preference under 5 U.S.C. § 2108(3)(C)); Spence v. Foxx, 159 F.Supp.3d 483, 488 (D.N.J. 2014), appeal dismissed (Mar. 19, 2015); (Title Redacted by Agency), Bd. Vet.App. 1524856 (June 10, 2015) (finding only 70 percent PTSD rating warranted for employed veteran); (Title Redacted by Agency), Bd. Vet.App. 1513531 (Mar. 30, 2015) (granting a veteran 70 percent rating for PTSD while “still employed and [having] a good relationship with his wife and child”); (Title Redacted by Agency), Bd. Vet.App. 1442296 (Sept. 22, 2014) (veteran employed with 70 percent rating for PTSD); (Title Redacted by Agency), Bd. Vet.App. 1440791 (Sept. 12, 2014) (granting a veteran 70 percent rating for PTSD while still gainfully employed); cf. Rutledge v. Illinois Dep't of Human Servs., 785 F.3d 258, 259 (7th Cir. 2015) (noting that “[a] veteran is deemed totally disabled if he suffers from an impairment that would ‘render it impossible for the average person to follow a substantially gainful occupation,’ even if the veteran applying for benefits is able, through exceptional ability or exertion, to work full time”).

80 percent rating qualifying for federal hiring preference under 5 U.S.C. SS 2108(3)(C


Context: Although no cases have been found within the Eleventh Circuit, there is caselaw from other circuits finding that imprisonment beyond the expiration of prisoner's sentence violates "the eighth amendment's proscription against cruel and unusual punishment."

Moore v. Tartler, 986 F.2d 682, 686 (3d Cir.1993), citing Sample v. Diecks, 885 F.2d 1099 (3d Cir.1989); see also Campbell v. Peters, 256 F.3d 695, 700 (7th Cir.2001)(granting qualified immunity on claim of former prison inmate that he was detained beyond his prison release date in violation of the Eighth Amendment); Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986)(holding prison officials ultimately violated the plaintiffs right to be free from cruel and unusual punishment); Mitchell v. New Mexico Dept. of Corrections, 996 F.2d 311, 1993 WL 191810 (10th Cir.1993)(Table); Douglas v. Murphy, 6 F.Supp.2d 430, 431 (E.D.Pa.1998)(finding an Eighth Amendment violation for detain ing a prisoner beyond the termination of his sentence where a prison official had knowledge of the prisoner’s problem, the official failed to act “indicating that his/her response to the problem was a product of deliberate indifference to the prisoner’s plight” and “there exists a causal connection between the official’s response to the problem and the unjustified detention.”); Campbell v. Illinois Dept. of Corrections, 907 F.Supp. 1173, 1179-80 (N.D.Ill.1995).

denying existence of a SS 1983 cause of action under the Eighth Amendment for continued detention or incarceration beyond expiration of sentence, but finding there was a cause of action under Fourteenth Amendment's Due Process Clause

But see Jones v. City of Jackson, 203 F.3d 875, 880-881 (5th Cir.2000) (denying existence of a § 1983 cause of action under the Eighth Amendment for continued detention or incarceration beyond expiration of sentence, but finding there was a cause of action under Fourteenth Amendment’s Due Process Clause).


holding prison officials ultimately violated the plaintiffs right to be free from cruel and unusual punishment


finding an Eighth Amendment violation for detain ing a prisoner beyond the termination of his sentence where a prison official had knowledge of the prisoner's problem, the official failed to act "indicating that his/her response to the problem was a product of deliberate indifference to the prisoner's plight" and "there exists a causal connection between the official's response to the problem and the unjustified detention."


Context: We did not suggest that merely setting forth a prima facie case of alienage based on circumstantial evidence of foreign birth shifts the burden of persuasion to the respondent. We specifically discussed the government's burden of establishing alienage as a precondition to the burden-shifting presumption.

finding that the respondent's visa application and attached foreign birth certificate created a burden-shifting presumption under sections 1184 and 1361

See Corona-Palomera, 661 F.2d at 816 n. 2, 818 (“Once alienage is established, the presumption raised by 8 U.S.C. § 1361 arises.”); see also Veneracion v. INS, 791 F.2d 778, 779-80 (9th Cir.1986) (finding that the respondent’s visa application and attached foreign birth certificate created a burden-shifting presumption under sections 1184 and 1361); Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th Cir.1980) (finding that once alienage is established by admission of foreign birth, the burden of proof shifts to alien to prove time, place, and manner of entry), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982); Cabral-Avila v. INS, 589 F.2d 957, 959 (9th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1245, 59 L.Ed.2d 472 (1979) (finding that the INS had established alienage with the properly admitted and uncontested 1-213 form and testimony of INS agents, where the respondent failed to testify and controvert that evidence, and then shifting the burden to the aliens to demonstrate nondeportability); Farrell v. United States, 381 F.2d 368, 369 (9th Cir.) (finding that the respondent’s admission of foreign birth and his foreign birth certificate conclusively established alienage), cert. denied, 389 U.S. 963, 88 S.Ct. 349, 19 L.Ed.2d 377 (1967).

"Once alienage is established, the presumption raised by 8 U.S.C. SS 1361 arises."


finding that once alienage is established by admission of foreign birth, the burden of proof shifts to alien to prove time, place, and manner of entry


finding that the INS had established alienage with the properly admitted and uncontested 1-213 form and testimony of INS agents, where the respondent failed to testify and controvert that evidence, and then shifting the burden to the aliens to demonstrate nondeportability


finding that the respondent's admission of foreign birth and his foreign birth certificate conclusively established alienage


Context: One year later, the Kansas court revisited the issue and found it unacceptable that a defendant "have no appellate forum available in the Kansas courts to vindicate a valid double jeopardy claim before he is in fact subjected to such jeopardy." The court concluded that habeas corpus, a proceeding that afforded the defendant a "speedy remedy," was the appropriate vehicle for challenging a trial court's pretrial denial of a claim of double jeopardy.

See also Ex parte Robinson, 641 S.W.2d 552 (Tex.Crim.App.1982) (finding constitutional right to review of double jeopardy claim and affording relief by habeas corpus); State v. Mestas, 93 N.M. 765, 605 P.2d 1164 (App.1980) (finding no right to appeal as final judgment but finding it unnecessary to reach question whether final judgment should be construed to include an order denying a double jeopardy claim because pursuant to statutory authority court of appeals permitted to grant interlocutory appeals); State v. Jenich, 94 Wis.2d 74, 292 N.W.2d 348 (1980) (upon reconsideration, court modified initial opinion that held a pretrial order denying a motion to dismiss because of double jeopardy claim was a final order appealable under statute, and held such an order did not satisfy statutory test for finality and was not appealable by right under statute, but instead, was a nonfinal order appealable only by permission of court of appeals); People ex rel. Mosley v. Carey, 74 Ill.2d 527, 25 Ill.Dec. 669, 387 N.E.2d 325, cert. denied, Mosley v. Illinois, 444 U.S. 940, 100 S.Ct. 292, 62 L.Ed.2d 306 (1979) (no right to appeal, but defendant not foreclosed from review because he may file writ of prohibition or mandamus); cf. State v. Forsyth, 587 P.2d 1387 (Utah 1978) (no right to appeal on double jeopardy charge when state refiled charges after federal court released defendant in habeas proceeding).


finding no right to appeal as final judgment but finding it unnecessary to reach question whether final judgment should be construed to include an order denying a double jeopardy claim because pursuant to statutory authority court of appeals permitted to grant interlocutory appeals


upon reconsideration, court modified initial opinion that held a pretrial order denying a motion to dismiss because of double jeopardy claim was a final order appealable under statute, and held such an order did not satisfy statutory test for finality and was not appealable by right under statute, but instead, was a nonfinal order appealable only by permission of court of appeals


no right to appeal, but defendant not foreclosed from review because he may file writ of prohibition or mandamus


Context: The AFFH certification was not a mere boilerplate formality, but rather was a substantive requirement, rooted in the history and purpose of the fair housing laws and regulations, requiring the County to conduct an AI, take appropriate actions in response, and to document its analysis and actions. The County's motion for summary judgment is therefore denied.

See Hendow, 461 F.3d at 1175 (finding the parties’ argument over whether the false statements were material “largely academic” where the government funding was expressly conditioned on the particular requirement to which the false statements pertained); see also United States ex rel. Harrison v. Westinghouse Savannah River Co. (“.Harrison II”), 352 F.3d 908, 915-17 (4th Cir.2003) (rejecting argument that a certification was not material simply because the federal government continued to fund a subcontract after learning the certification was false where the certification was a prerequisite for bidding on the subcontract).

finding the parties' argument over whether the false statements were material "largely academic" where the government funding was expressly conditioned on the particular requirement to which the false statements pertained


Context: The Majority herein finds that an in camera review of the documents requested by defendant would properly determine which documents are privileged within the scope of SS 5943. However, I am of the opinion that such an inspection would make the clergy privilege an illusory one. An in camera review of documents that are absolutely privileged constitutes error.

records of confidential communication between sexual assault victim and psychotherapist are absolutely privileged pursuant to 42 Pa.C.S.A. SS 5945.1, and not subject to in camera review

Commonwealth v. Kennedy, 413 Pa.Super. 95, 111-13, 604 A.2d 1036, 1045 (1992) (en banc), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992) (records of confidential communication between sexual assault victim and psychotherapist are absolutely privileged pursuant to 42 Pa.C.S.A. § 5945.1, and not subject to in camera review).-

although 42 Pa.C.S.A. SS 5942 provides absolute privilege of confidential communication between media and informant, protection not attaching to non-confidential material in defamation case

See Commonwealth v. Wilson/Aultman, 529 Pa. 268, 602 A.2d 1290 (1992), cert. denied, — U.S.-, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992) (privilege codified at 42 Pa.C.S.A. § 5945.1 is absolute); Hatchard v. Westinghouse Broadcasting Company, 516 Pa. 184, 532 A.2d 346 (1987) (although 42 Pa.C.S.A. § 5942 provides absolute privilege of confidential communication between media and informant, protection not attaching to non-confidential material in defamation case).


"[A] privilege which is statutorily enacted, but which is subject to exceptions, is not absolute and access to a criminal defendant may be required."

Contrast Commonwealth v. Eck, 413 Pa.Super. 538, 545, 605 A.2d 1248, 1252 (1992) (“[A] privilege which is statutorily enacted, but which is subject to exceptions, is not absolute and access to a criminal defendant may be required.”); Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (since 11 P.S. § 2215 (now 23 Pa.C.S.A. § 6339) provided various exceptions to non-disclosure of information, privilege was not absolute and thus information was subject to in camera review).


since 11 P.S. SS 2215 (now 23 Pa.C.S.A. SS 6339) provided various exceptions to non-disclosure of information, privilege was not absolute and thus information was subject to in camera review


psychologist-client privilege established by 42 Pa.C.S.A. SS 5944 is absolute and not subject to in camera review

Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987) (psychologist-client privilege established by 42 Pa.C.S.A. § 5944 is absolute and not subject to in camera review).


Context: The majority of courts that have addressed the issue since the 1978 amendment have held that individuals can rely on the named plaintiffs' timely charge if it gives notice of class discrimination.

allowing "piggybacking" of opt-in ADEA claimants although EEOC charge was not expressly representative

See Kloos v. Carter-Day Co., 799 F.2d 397, 400 (8th Cir.1986) (charge must allege class-wide age discrimination or claim to represent class in order to serve as basis for ADEA class action under § 216(b)); Naton v. Bank of California, 649 F.2d 691, 697 (9th Cir.1981) (notice inadequate because complainant expressed no intention to sue on behalf of anyone other than himself); Mistretta v. Sandia Corp., 639 F.2d 588, 593-94 (10th Cir.1980) (charges alleging employer’s “arbitrary action constitutes age discrimination against workers over 40” and notice to agencies that suit was intended to be class action gave agencies opportunity to investigate and act within statute of limitations); Bean v. Crocker Nat’l Bank, 600 F.2d 754, 760 (9th Cir.1979) (notice filed on behalf of named plaintiffs and others similarly situated put Secretary and employer on notice that “discrimination charges encompassed a pattern of unlawful conduct transcending an isolated individual claim and that they should act accordingly”); see also Anderson v. Montgomery Ward & Co., 631 F.Supp. 1546, 1549 (N.D.Ill.1986) (allowing “piggybacking” of opt-in ADEA claimants although EEOC charge was not expressly representative).

charge must allege class-wide age discrimination or claim to represent class in order to serve as basis for ADEA class action under SS 216(b


refusing to decide issue of whether notice embracing claims of similarly situated employees satisfied SS 626(d

But see McCorstin v. U.S. Steel Corp., 621 F.2d 749, 755 (5th Cir.1980) (refusing to decide issue of whether notice embracing claims of similarly situated employees satisfied § 626(d) since district court’s finding that notice did not purport to include others similarly situateed was not clearly erroneous); Price v. Maryland Casualty Co., 561 F.2d 609, 610-11 (5th Cir.1977) (affirming district court’s order that “opt-in” procedure be used for FLSA § 16(b) class actions, thereby implicitly requiring both filing of notice of intent to sue and written consent from opt-in plaintiffs to be included in class).


affirming district court's order that "opt-in" procedure be used for FLSA SS 16(b


notice inadequate because complainant expressed no intention to sue on behalf of anyone other than himself


charges alleging employer's "arbitrary action constitutes age discrimination against workers over 40" and notice to agencies that suit was intended to be class action gave agencies opportunity to investigate and act within statute of limitations


notice filed on behalf of named plaintiffs and others similarly situated put Secretary and employer on notice that "discrimination charges encompassed a pattern of unlawful conduct transcending an isolated individual claim and that they should act accordingly"


Context: 'Acts of zoning enforcement rather than rulemaking are not legislative.'

county commissioners who voted to deny a permit for the development of a landfill were not entitled to legislative immunity, because denial of the permit was the 'application of policy to a specific party5

Crymes v. DeKalb County, 923 F.2d 1482, 1485-86 (11th Cir.1991)(em-phasis added)(county commissioners who voted to deny a permit for the development of a landfill were not entitled to legislative immunity, because denial of the permit was the ‘application of policy to a specific party5); see also Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 865 F.2d 77, 79 (4th Cir.1989) (“when municipal officials “do more than adopt prospective, legislative-type rules and take the next step into the area of enforcement,” ’ they cannot claim legislative immunity).”

"when municipal officials "do more than adopt prospective, legislative-type rules and take the next step into the area of enforcement," ' they cannot claim legislative immunity


Context: Although ulti mately we need not definitively decide the point, we assume that the district court erred under Rule 17(b) in conducting the open coui't inquiry into Mr. Wardell's necessity rationale and that the error was obvious and clear. However, Mr. Wardell has made absolutely no showing that the court's approach affected his substantial rights, as he was obliged to under the third prong of plain error review.

See United States v. Meriwether, 486 F.2d 498, 506-07 (5th Cir.1973) (noting that “although the presence of the Assistant United States Attorney at application proceedings held under Rule 17(b) violates the rule,” “to obtain a reversal of the conviction, defendant is required to show that he was prejudiced by the failure to comply with the rule,” and concluding that defendant “failed to make such a showing”); see also United States v. Hauk, 412 F.3d 1179, 1194-95 (10th Cir.2005) (discussing the third prong of the plain error test, which requires a showing that the alleged error affected substantial rights).

noting that "although the presence of the Assistant United States Attorney at application proceedings held under Rule 17(b


Context: It is the district court's ultimate resolution of Mr. Sue's habeas petition that is our focus. And, as explicated infra, we deny Mr. Sue a COA because we conclude that reasonable jurists could not debate that ultimate resolution.

noting that we can deny a COA "so long as we are confident in the correctness of the district court's ultimate resolution of his habeas claims--and we are"

See Self v. Milyard, 522 Fed.Appx. 435, 437 n.2 (10th Cir. 2013) (noting that we can deny a COA "so long as we are confident in the correctness of the district court's ultimate resolution of his habeas claims—and we are”); see also Brown v. Roberts, 501 Fed. Appx. 825, 830 (10th Cir. 2012)- ("While we arrive at that conclusion through a somewhat different path than that employed by the district court, we find that reasonable jurists could not disagree with the district court’s ultimate resolution in dismissing the petition.”).

"While we arrive at that conclusion through a somewhat different path than that employed by the district court, we find that reasonable jurists could not disagree with the district court's ultimate resolution in dismissing the petition."


Context: With respect to his own application, Zheng argues that the BIA erred in rejecting as impermissibly speculative his application for CAT relief based on his fear of forced sterilization. However, where a petitioner is not married and does not have children, his fear of forced sterilization based on a hypothetical future violation of the family planning policy is too speculative to warrant relief.

finding that petitioner's reliance on a string of suppositions in support of his CAT claim was too speculative to warrant relief

See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005) (absent solid support in the record for petitioner’s assertion that he would be subjected to forced sterilization, his fear was “speculative at best”); see also Matter of J.F.F., 23 I. & N. Dec. 912, 917-18 (A.G.2006) (finding that petitioner’s reliance on a string of suppositions in support of his CAT claim was too speculative to warrant relief).

absent solid support in the record for petitioner's assertion that he would be subjected to forced sterilization, his fear was "speculative at best"


Context: While it is true that the testimony of another witness who had identified Evans as the perpetrator of the offense was presented, her identification was the more equivocal of the two and was made only after she had learned that her co-worker, Crispino, had made an identification. This fact, coupled with the frequency of the hearsay references to Crispino's out-of-court identification, and the jury's request for "the police report from Teresa Crispino reporting the robbery," make it impossible for us to state, beyond a reasonable doubt, that the error did not affect the verdict.

"[H]armless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence."

See State v. DiGuilio, 491 So.2d 1129, 1136 (Fla.1986)(“[H]armless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence.”); see also Ciccarelli v. State, 531 So.2d 129, 132 (Fla.1988)(stating with regard to the harmless error analysis, “The court must determine not if there is overwhelming evidence of guilt, but if it can be said beyond a reasonable doubt that the verdict could not have been affected by the error.”)(emphasis in original). Accordingly, we reverse the judgment of conviction and remand for a new trial.

stating with regard to the harmless error analysis, "The court must determine not if there is overwhelming evidence of guilt, but if it can be said beyond a reasonable doubt that the verdict could not have been affected by the error."


Context: The law of the case is an established doctrine with roots reaching back to the earliest days of statehood. Under the doctrine jury instructions not objected to become the law of the case. In criminal cases, the State assumes the burden of proving otherwise unnecessary elements of the offense when such added elements are included without objection in the "to convict" instruction.

"Added elements become the law of the case . . . when they are included in instructions to the jury."

State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143 (1995) (“Added elements become the law of the case . . . when they are included in instructions to the jury.”) (citing State v. Hobbs, 71 Wn. App. 419, 423, 859 P.2d 73 (1993); State v. Rivas, 49 Wn. App. 677, 683, 746 P.2d 312 (1987)).

"Although the charging statute . . . did not require reference to [the added element], by including that reference in the information and in the instructions, it became the law of the case and the State had the burden of proving it."

See also State v. Barringer, 32 Wn. App. 882, 887-88, 650 P.2d 1129 (1982) (“Although the charging statute . . . did not require reference to [the added element], by including that reference in the information and in the instructions, it became the law of the case and the State had the burden of proving it.”) (citing State v. Worland, 20 Wn. App. 559, 565-66, 582 P.2d 539 (1978)), overruled in part on other grounds by State v. Monson, 113 Wn.2d 833, 849-50, 784 P.2d 485 (1989).


Context: Nevertheless, whether Hunter consented really is irrelevant because Sergeant Mushinsky not only smelled marijuana as he stood next to the minivan, but also, as Mosby concedes in his brief, saw marijuana in clear view on top of the garbage bag and on Mosb/s seat inside the minivan. The smell alone was enough to give rise to probable cause to search the entire vehicle, including closed containers like the garbage bag.

See United States v. Cherry, 436 F.3d 769, 772 (7th Cir.2006) (noting that smell of marijuana is “simple and compelling foundation” for searching entire car); United States v. Wimbush, 337 F.3d 947, 950-51 (7th Cir.2003) (noting that search of car was justified after officer saw open container of alcohol and smelled marijuana); United States v. Mazzone, 782 F.2d 757, 761 (7th Cir.1986) (noting that odor of marijuana provides probable cause to search vehicle at least until likely source of odor is found); United States v. Neumann, 183 F.3d 753, 756 (8th Cir.1999) (holding that alcohol odor provided probable cause to search vehicle for open container and smell of burnt marijuana justified search of entire vehicle for drugs); see also United States v. Hines, 449 F.3d 808, 814 (7th Cir.2006) (noting that, under automobile exception to warrant requirement, police may search vehicle if they have probable cause to believe search will uncover contraband).

noting that smell of marijuana is "simple and compelling foundation" for searching entire car


noting that search of car was justified after officer saw open container of alcohol and smelled marijuana


noting that odor of marijuana provides probable cause to search vehicle at least until likely source of odor is found


holding that alcohol odor provided probable cause to search vehicle for open container and smell of burnt marijuana justified search of entire vehicle for drugs


Context: Further, even assuming that "its" applied to the entire list of categories as the Haires contend, we cannot say based upon the language of the Release whether, on the one hand, being a Haspin Acres' rider requires a certain type of relationship between the rider and Has-pin Acres or, on the other hand, one of Haspin Acres' riders is merely a person in Parker's position, i.e., someone who went to Haspin Acres, stopped at the gate, went inside, showed them identification, signed a waiver, gave Haspin Acres money, and rode his ATV around Haspin Acres. We conclude that there is a question of fact as to whether Parker was a rider for purposes of the Release.

See Cummins v. McIntosh, 845 N.E.2d 1097, 1108 (Ind.Ct.App.2006) (holding that summary disposition was improper as there were factual issues regarding the scope and effect of a release), trans. denied; see also Huffman, 588 N.E.2d at 1267 (holding that contradictory references clouded the intent of the document, “parol evidence may be utilized to determine the parties’ true intentions respecting the document’s application,” and that the entry of summary judgment must be reversed and the case remanded for a factual determination).

holding that contradictory references clouded the intent of the document, "parol evidence may be utilized to determine the parties' true intentions respecting the document's application," and that the entry of summary judgment must be reversed and the case remanded for a factual determination


Context: The creation of a right is often meaningless without the ancillary right to be free from retaliation for the exercise or assertion of that right.

termination of benefits under New York's Aid to Families With Dependent Children program for refusal of required home visit not violative of fourth amendment right to be free of unreasonable searches

But see Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971) (termination of benefits under New York’s Aid to Families With Dependent Children program for refusal of required home visit not violative of fourth amendment right to be free of unreasonable searches).

Cf. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) (death penalty may not be imposed solely on those who exercise their constitutional right to a jury trial); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229,14 L.Ed.2d 106 (1965) (penalty in form of comment by court and prosecutor may not be imposed on the exercise of one’s fifth amendment right to silence). See also Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (burden in form of residency requirement for welfare benefits may not be imposed on constitutional right to travel, absent compelling justification); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (burden in form of choice between receiving unemployment benefits or observing the Sabbath may not be imposed on right of free exercise of religion, absent compelling state interest).


penalty in form of comment by court and prosecutor may not be imposed on the exercise of one's fifth amendment right to silence


burden in form of residency requirement for welfare benefits may not be imposed on constitutional right to travel, absent compelling justification


burden in form of choice between receiving unemployment benefits or observing the Sabbath may not be imposed on right of free exercise of religion, absent compelling state interest


Context: [P 11] C.G.'s argument that C.N. cannot be classified as a deprived child because C.N.'s mother is capably raising him also fails. The relevant inquiry is whether C.G. can provide proper parental care for the child, which C.G. cannot do while incarcerated.

finding that a child was "deprived," as required to terminate the child's incarcerated father's parental rights, where the child lived with its mother because the father raped a third party, wrote a threatening note to the child's mother and would not be eligible for parole until the child is twenty-seven years old

See, e.g., In re C.R., 1999 ND 221, ¶¶ 5-6, 602 N.W.2d 520 (finding under a deprivation analysis that a child’s positive development in foster care does not negate an incarcerated individual’s inability to provide proper parental care for the child); see also In re M.H.S., 261 Ga.App. 686, 583 S.E.2d 471 (2003) (finding that a child was “deprived,” as required to terminate the child’s incarcerated father’s parental rights, where the child lived with its mother because the father raped a third party, wrote a threatening note to the child’s mother and would not be eligible for parole until the child is twenty-seven years old).

finding under a deprivation analysis that a child's positive development in foster care does not negate an incarcerated individual's inability to provide proper parental care for the child


Context: Finally, I find no case law which precludes law enforcement officers from resorting to an appropriate prophylactic SOP in circumstances which pose particularly serious safety risks either to the traveling public or the law enforcement officers themselves. Instead, there is considerable authority to the contrary.

See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 109-10, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (endorsing government position that although “[i]t was apparently [police] practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation, ... this practice was adopted as a ‘precautionary measure to afford a degree of protection to the officer and that it may be justified on that ground.”); see also Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 884, 137 L.Ed.2d 41 (1997) (extending Mimms to an SOP allowing police to order all occupants from a stopped car); United States v. Kimball, 25 F.3d 1, 8 (1st Cir.1994) (sustaining, on safety grounds, a “[police] department policy not to engage in detailed interviews on the side of the road”).

endorsing government position that although "[i]t was apparently [police] practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation, ... this practice was adopted as a 'precautionary measure to afford a degree of protection to the officer and that it may be justified on that ground."


sustaining, on safety grounds, a "[police] department policy not to engage in detailed interviews on the side of the road"


Context: First, as previously discussed, the mere existence of a semen stain on Sara's shorts, without proof of when it was deposited or who deposited it, is irrelevant to the issue of consent and insufficient to support defendant's third-party guilt defense.

noting that "[t]he probative value of sexual conduct covered by N.J.S.A. 2C:14-7 'depends on clear proof that [the conduct] occurred, that [it [35] is] relevant to a material issue in the case, and that [it is] necessary to a defense' " (quoting Budis, supra, 125 N.J. at 533, 593 A.2d 784

See J.A.C., supra, 210 N.J. at 300, 44 A.3d 1085 (noting that “[t]he probative value of sexual conduct covered by N.J.S.A. 2C:14-7 ‘depends on clear proof that [the conduct] occurred, that [it [35] is] relevant to a material issue in the case, and that [it is] necessary to a defense’ ” (quoting Budis, supra, 125 N.J. at 533, 593 A.2d 784)); see also Garron, supra, 177 N.J. at 167 n. 2, 827 A.2d 243 (reaffirming that the “probative value” of evidence is “its tendency to establish the proposition that it is offered to prove” (citing Wilson, supra, 135 N.J. at 13, 637 A.2d 1237)).

reaffirming that the "probative value" of evidence is "its tendency to establish the proposition that it is offered to prove" (citing Wilson, supra, 135 N.J. at 13, 637 A.2d 1237


Context: Of course, the inevitable consequence of any multi-factored test, as highlighted above in the criticisms of the Leser/Wolff test, is that it devolves into a "totality of the circumstances" or "case-by-case" analysis, thereby running the risk of being depicted as an ad hoc, potentially purely subjective determination.

noting that the application of the "discriminate unfairly" standard may "involve little more than exercise of the bankruptcy court's broad discretion"

See, e.g., In re Groves, 39 F.3d 212, 214 (8th Cir.1994) (noting that the application of the “discriminate unfairly” standard may “involve little more than exercise of the bankruptcy court’s broad discretion”); cf. In re Crawford, 324 F.3d 539 (7th Cir.2003) (referring to exercise of bankruptcy court’s discretion in nonpe-jorative terms).

referring to exercise of bankruptcy court's discretion in nonpe-jorative terms


Context: Sanchez-Lopez is the binding precedent of our circuit, which a three-judge panel may not overrule absent intervening Supreme Court or en banc authority (of which we have found none).

See Obrey v. Johnson, 400 F.3d 691, 699-701 (9th Cir.2005) (recognizing and resolving tension among Ninth Circuit cases applying conflicting versions of the harmless error standard in civil cases); see also H & D Tire & Automotive-Hardware, Inc. v. Pitney Bowes, Inc., 227 F.3d 326, 330 (5th Cir.2000) (“When panel opinions appear to conflict, we are bound to follow the earlier opinion.”).

"When panel opinions appear to conflict, we are bound to follow the earlier opinion."


Context: The policy reasons which govern when the Fifth Amendment privilege is properly invoked are applicable when a privilege of another sort is asserted, and also when there is no valid claim of privilege at all. Putting a witness on the stand in front of the jury for the sole purpose of observing his refusal to testify invites the jury to speculate and draw impermissible inferences.

"The impermissible inference is no less present when the privilege might be invalid."

See Gearns, 577 N.W.2d at 436 (“The impermissible inference is no less present when the privilege might be invalid.”). A witness should be questioned outside the presence of the jury when it is clear that the witness will refuse to testify on the basis of any privilege or reason. See Hagez v. State of Maryland, 110 Md. App. 194, 676 A.2d 992, 1005 (1996) (State’s unrelenting questioning of witness in presence of jury prejudiced defendant even though witness asserted invalid claim of spousal immunity); United States v. MacCloskey, 682 F.2d 468, 478 n. 19 (4th Cir.1982) (“We think that the best procedure to follow after a witness has improperly invoked the Fifth Amendment or any privilege in such a situation, is to issue an order, outside of the jury’s presence, directing him to testify and admonishing him that his continued refusal to testify would be punishable by contempt.”) (citations omitted); cf. Morrison v. United States, 124 U.S.App.D.C. 330, 365 F.2d 521, 524 (1966) (prior to giving a missing witness instruction to the jury, the trial court, in its discretion, must determine whether it is reasonable for the jury to be permitted to draw an adverse inference from a party’s failure to call an available witness).

prior to giving a missing witness instruction to the jury, the trial court, in its discretion, must determine whether it is reasonable for the jury to be permitted to draw an adverse inference from a party's failure to call an available witness


State's unrelenting questioning of witness in presence of jury prejudiced defendant even though witness asserted invalid claim of spousal immunity


"We think that the best procedure to follow after a witness has improperly invoked the Fifth Amendment or any privilege in such a situation, is to issue an order, outside of the jury's presence, directing him to testify and admonishing him that his continued refusal to testify would be punishable by contempt."


Context: Under the court's reasoning, virtually any offense that could lead to deportation -- even a minor one committed long before the parent's children were born -- would create such an unstable and uncertain environment as to establish endangerment, subjecting countless immigrants to the potential loss of their children. The court's broad reasoning necessarily applies to citizens as well. Any offense committed by a citizen that could lead to imprisonment or confinement would also apparently establish endangerment, simply because the parent's ability to be present in his children's lives would be uncertain. Our nation's Constitution forbids such a far-reaching interpretation of our parental rights termination statutes.

noting the "extensive precedent" establishing that the Due Process Clause of the Fourteenth Amendment "protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children"

See, e.g., Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (noting the “extensive precedent” establishing that the Due Process Clause of the Fourteenth Amendment “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children”); see also Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (observing that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”). Here, though Francisco engaged in a criminal act and left Wisconsin without completing his probation before his children were born, there is no evidence that these actions created such uncertainty and instability for his children sufficient to establish endangerment.

observing that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent"


Context: One matter requires clarification at the outset of this discussion. Assuming for the moment that the complaint adequately sets forth a scheme to defraud in connection with the mail and wire fraud allegations, each mailing or telephone call in furtherance of that scheme constitutes a separate violation of the mail and wire fraud statutes, and thus a separate predicate act for purposes of the racketeering statute.

"[I]t is well settled that 'each mailing in furtherance of a scheme to defraud is a separate offense under 18 U.S.C. SS 1341 even if there is but one scheme involved.' "

See United States v. Ledesma, 632 F.2d 670, 679 (7th Cir.) (“[I]t is well settled that ‘each mailing in furtherance of a scheme to defraud is a separate offense under 18 U.S.C. § 1341 even if there is but one scheme involved.’ ”) (citation omitted), cert. denied, 449 U.S. 998, 101 S.Ct. 539, 66 L.Ed.2d 296 (1980); and United States v. Clausen, 792 F.2d 102, 104 n. 4 (8th Cir.) (“Each separate interstate telephone call in furtherance of a scheme to defraud ... constitutes a separate offense under 18 U.S.C. § 1343.”) (citation omitted), cert. denied, 479 U.S. 858, 107 S.Ct. 202, 93 L.Ed.2d 133 (1986).

See also Appley v. West, 832 F.2d 1021, 1027 (7th Cir.1987) (two separate mailings in furtherance of single scheme to defraud sufficient to meet the two-act requirement of RICO). Furthermore, an individual who participated in the scheme to defraud need not have personally mailed the letter or placed the telephone which supplies the basis for liability under the mail and wire fraud statutes in order to be held accountable, if use of the mails or wires in connection with the scheme was known or reasonably foreseeable to him or her. United States v. Kuzniar, 881 F.2d 466, 472 (7th Cir.1989).


"Each separate interstate telephone call in furtherance of a scheme to defraud ... constitutes a separate offense under 18 U.S.C. SS 1343."


Context: We observe at the outset that the mailing in a federal mail fraud prosecution need not be sent by the defendant or his co-conspirator. It may be sent by a victim of the plot or an innocent third party, so long as the mailing is "incident to an essential part of the scheme, ... or a step in [the] plot."

mailing element satisfied by defrauded investors' mailing money to defendant

See also United States v. Pepper, 51 F.3d 469 (5th Cir.1995) (mailing element satisfied by defrauded investors’ mailing money to defendant).

Schmuck v. United States, 489 U.S. 705, 710-11, 109 S.Ct. 1443, 1448, 103 L.Ed.2d 734 (1989) (mailing element supplied by duped used-ear retailers submitting title applications to state motor vehicles bureau).


Context: All of the foregoing arguments incorporated by reference either relate to defendants' collection of Disputed Fees in alleged breach of the contract, save for the claim that the Facsimile Fee was collected in violation of New York law, a claim that is preempted, as discussed supra. Consequently, it is plain to the Court that plaintiffs' fraud claim is merely duplicative of the breach of contract claim.

See Guilbert v. Gardner, 480 F.3d 140, 148 (2d Cir.2007) (affirming dismissal of fraud claim as duplicative of breach of contract claim); see also Linea Nuova, S.A. v. Slowchowsky, 62 A.D.3d 473, 877 N.Y.S.2d 891 (N.Y.App.Div.2009) (same); Krantz v. Chateau Stores of Canada, 256 A.D.2d 186, 187, 683 N.Y.S.2d 24 (N.Y.App.Div.1998) (“A cause of action for fraud does not arise when the only fraud charged relates to a breach of contract.”).

"A cause of action for fraud does not arise when the only fraud charged relates to a breach of contract."


Context: Thus, it is clear from the record that the inmates at the Facility had some reasonable alternatives to- plaintiffs legal assistance. Accordingly, defendants' motion for summary judgment must be granted on this claim.

plaintiff permitted to amend complaint to allege lack of reasonable alternatives to ensure prisoners' access to the courts

See Gassler v. Rayl, 862 F.2d 706, 708 n. 3 (8th Cir.1988) (plaintiff’s claim that his removal as law library clerk unconstitutionally interfered with his right to provide legal assistance to other prisoners rejected where record clearly showed that law library and inmate law clerks were available); but see Gibbs v. Hopkins, 10 F.3d 373, 379 (6th Cir.1993) (plaintiff permitted to amend complaint to allege lack of reasonable alternatives to ensure prisoners’ access to the courts).

plaintiff's claim that his removal as law library clerk unconstitutionally interfered with his right to provide legal assistance to other prisoners rejected where record clearly showed that law library and inmate law clerks were available


Context: . In McFarland, the court collected the cases from other jurisdictions supporting the proposition that an accusation of adultery is defam atory per se.

McFarland, 684 F.Supp.2d at 1086-87 (citing Green v. Rogers, 234 Ill.2d 478, 334 Ill.Dec. 624, 917 N.E.2d 450, 459 (2009) (noting that "words that impute a person has engaged in adultery or fornication” are considered defamatory per se under Illinois law); Parrish v. Allison, 376 S.C. 308, 656 S.E.2d 382, 389 (S.C.Ct.App.2007) (holding that under South Carolina law “slander is actionable per se” where plaintiff is alleged to have committed adultery); Gordon v. Boyles, 99 P.3d 75, 79 (Colo.Ct.App.2004) (holding that a statement that plaintiff had engaged in an extramarital affair was defamatory per se under Colorado law); City of Fairbanks v. Rice, 20 P.3d 1097, 1107 (Alaska 2000) (holding that statements that plaintiff had had an extramarital affair were defamatory per se); Baskin v. Rogers, 229 Ga.App. 250, 493 S.E.2d 728, 730 (1997) (statements that plaintiff had "affairs” constituted slander per se); Nazeri v. Missouri Valley College, 860 S.W.2d 303, 312 (Mo.1993) (holding that statements that insinuated that plaintiff was an adulteress were actionable as slander per se under Missouri law); Gorman v. Swaggart, 524 So.2d 915, 921 (La.App. 4th Cir.1988) (holding that statements imputing adultery are defamatory under Louisiana law); Devlin v. Greiner, 147 N.J.Super. 446, 371 A.2d 380 (N.J.Super.Ct.1977) (holding that private detective’s report "imputing to plaintiffs an adulterous relationship, constitutes libel as a matter of law.”); Baird v. Dun and Bradstreet, 446 Pa. 266, 285 A.2d 166, 171 (1971) (report stating that plaintiff had been indicted for adultery was libelous per se); see also Donati v. Queens Ledger Newspaper Group, 240 A.D.2d 696, 659 N.Y.S.2d 306 (1997) (reversing dismissal of defamation claim where plaintiff alleged that item in newspaper was capable of defamatory connotation that plaintiff had been engaged in a longstanding extramarital affair).

noting that "words that impute a person has engaged in adultery or fornication" are considered defamatory per se under Illinois law


holding that under South Carolina law "slander is actionable per se" where plaintiff is alleged to have committed adultery


holding that a statement that plaintiff had engaged in an extramarital affair was defamatory per se under Colorado law


holding that statements that plaintiff had had an extramarital affair were defamatory per se


holding that statements that insinuated that plaintiff was an adulteress were actionable as slander per se under Missouri law


holding that statements imputing adultery are defamatory under Louisiana law


holding that private detective's report "imputing to plaintiffs an adulterous relationship, constitutes libel as a matter of law."


report stating that plaintiff had been indicted for adultery was libelous per se


Context: The Court finds for another reason under Mississippi law that it cannot exercise jurisdiction over the contempt proceeding.

finding that "[t]he authorities are legion that the power to punish for contempt rests solely with the court contemned, and one court cannot punish a contempt against another court."

See e.g. Culpepper v. Mississippi, 516 So.2d 485, 487 (Miss.1987) (finding that “[t]he authorities are legion that the power to punish for contempt rests solely with the court contemned, and one court cannot punish a contempt against another court.”).

holding that "[i]t is a well established rule that the power to judge a contempt rests exclusively with the court contemned, and that no court is authorized to punish a contempt against another court."

See also Kitchens v. State, 293 So.2d 815, 815 (Miss.1974) (holding that “[i]t is a well established rule that the power to judge a contempt rests exclusively with the court contemned, and that no court is authorized to punish a contempt against another court.”).


Context: We held that the right to procreate was not implicated by the custody battle, which dealt with parental rights after birth. We observed, however, that "the rights of personal intimacy, of marriage, of sex, of family, of procreation ... are fundamental rights protected by both the federal and state Constitutions."

Id. at 447, 537 A.2d 1227; see also In re Grady, 85 N.J. 235, 247-48, 426 A.2d 467 (1981) (recognizing that decisions in Griswold and Eisenstadt ended “any doubt about a personal right to prevent conception,” and holding that “an individual’s constitutional right of privacy includes the right to undergo sterilization voluntarily”); cf. Schroeder v. Perkel, 87 N.J. 53, 66, 432 A.2d 834 (1981) (allowing recovery against defendants whose negligent diagnosis deprived mother of right to choose not to conceive child with genetic defect).

recognizing that decisions in Griswold and Eisenstadt ended "any doubt about a personal right to prevent conception," and holding that "an individual's constitutional right of privacy includes the right to undergo sterilization voluntarily"


Context: In cases involving strikingly similar facts, which addressed the propriety of the voir dire procedure conducted in trials commenced after the Robinson rule was announced, we found the error of excluding a defendant from bench conferences at voir dire questioning to be harmless beyond a reasonable doubt.

limited portion of voir dire at bench, and the two jurors questioned at the bench who actually served on the jury were questioned before defense counsel requested defendant's presence at the bench

See also Washington, supra, 227 U.S.App.D.C. at 193, 705 F.2d at 498 (limited portion of voir dire at bench, and the two jurors questioned at the bench who actually served on the jury were questioned before defense counsel requested defendant’s presence at the bench).

See Gary, supra, 499 A.2d at 835 (only two prospective jurors questioned at the bench actually served on panel, and defense counsel did not use one peremptory strike); Young, supra, 478 A.2d at 290-91 (only limited portion of entire voir dire was conducted at bench, only two prospective jurors so questioned served on panel, and defense counsel did not use one peremptory challenge).


only limited portion of entire voir dire was conducted at bench, only two prospective jurors so questioned served on panel, and defense counsel did not use one peremptory challenge


Context: In so doing, Plaintiff misses the mark. To be exact, the question is not whether Defendants correctly believed that Plaintiff had established an improper relationship with Moore.

"Bad or mistaken reasons for a decision may yet be non-discriminatory."

See Holder v. City of Raleigh, 867 F.2d 823, 829 (4th Cir.1989) (“Bad or mistaken reasons for a decision may yet be non-discriminatory.”); cf. Bishop v. Wood, 426 U.S. 341, 349-50, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (“We must accept the harsh fact that numerous individual mistakes are inevitable in the day-today administration of our affairs.”).

"We must accept the harsh fact that numerous individual mistakes are inevitable in the day-today administration of our affairs."


Context: Marble also contends that the statute did not define the phrase "living in the household" and that, therefore, it could have conceivably applied to a parent exercising non-custodial visitation rights. However, because Marble did not raise these statutory construction arguments in his brief, we decline to address the merits of the arguments here.

See Valcarce v. Fitzgerald, 961 P.2d 305, 313 (Utah 1998) ("It is well established that an appellate court will decline to consider an argument that a party has failed to adequately brief."); see also Rushton v. Salt Lake County, 1999 UT 36, ¶ 25, 977 P.2d 1201 (Howe, C.J., concurring) (noting that appellant's issue was raised "too late" when he "first made [the] assertion in his oral argument"); State v. Babbell, 770 P.2d 987, 994 (Utah 1989) ("It is generally inappropriate to raise issues at oral argument that have not been designated as issues on appeal in docketing statement or in the briefs."); First See.


"It is generally inappropriate to raise issues at oral argument that have not been designated as issues on appeal in docketing statement or in the briefs."


Context: To satisfy this causation requirement, a plaintiff needs to show that the conduct at issue "contributed] significantly to a defendant's continued monopoly power."

in rejecting a SS 2 claim arising from alleged predatory pricing, (1

See Microsoft, 253 F.3d at 80 (at least in an equitable enforcement action as opposed to an action for money damages, holding that to prove causation plaintiff must prove the conduct was “reasonably capable of contributing significantly to a defendant’s continued monopoly power”); see also Data Gen. Corp., 36 F.3d at 1182 (“ ‘Exclusionary conduct’ is defined as ‘conduct, other than competition on the merits or restraints reasonably necessary to competition on the merits, that reasonably appears capable of making a significant contribution to creating or maintaining monopoly power.’ ” (internal citations omitted)); cf. Morgan, 892 F.2d at 1361-63 (in rejecting a § 2 claim arising from alleged predatory pricing, (1) suggesting that § 2 liability requires that the pricing have a “measurable impact on [plaintiffs] overall viability as a competitor[,]” and (2) “finding] insufficient evidence” that the pricing “had any more than a negligible impact on [plaintiffs] viability as a competitor”).

at least in an equitable enforcement action as opposed to an action for money damages, holding that to prove causation plaintiff must prove the conduct was "reasonably capable of contributing significantly to a defendant's continued monopoly power"


Context: Thus, if an individual does not expose himself to public view, he maintains an expectation of privacy and is therefore in his home and not a public place.

Cummings, 418 F.3d at 686; see also id. at 685 (noting that plaintiffs attempt to talk to officers through a window, his partial opening of his front door, and his refusal to grant the officers’ request to enter his home manifested his intent to maintain his expectation of privacy in his home); United States v. Saari, 272 F.3d 804 (6th Cir.2001) (finding that defendant did not voluntarily expose himself to the public when he opened his door following the forceful knocks of police, who had positioned themselves in front of the sole exit to his apartment with their guns drawn).

But see United States v. Gori, 230 F.3d 44 (2d Cir.2000), cited with approval and distinguished in Saari (noting that defendant forfeited his expectation of privacy in his home when he voluntarily opened his door for a delivery woman).


Context: Although the burden is minimal, it is not nonexistent. To comply with the Uniform Criminal Extradition Act, the demanding state must establish, on the face of its documents, that: (1) the person sought was convicted of a crime; (2) a period of probation or parole was imposed; (3) the person has broken the terms of his or her probation or parole; and (4) the sentence had not expired at the time of the alleged violation.

See In re Hval, 148 Vt. 544, 546, 537 A.2d 135, 137 (1987) (probationer subject to extradition as a fugitive where shown to be a convict with an unexpired sentence); see also Ingram v. Dodd, 243 Ga. 788, 788, 256 S.E.2d 778, 779 (1979) (“A probationer whose probation has been revoked because of a violation of its conditions may be extradited ... on the ground that he is a convict whose sentence has not expired, and who is ‘charged with crime’ within the meaning of the United States Constitution.”); Sloss v. Sheriff of Leavenworth County, 7 Kan. App. 2d 702, 703-04, 648 P.2d 255, 257-58 (1982) (person is “charged with crime” under extradition act where there has been a judgment of conviction, the sentence has not expired, and the person has violated the terms of his probation).

"A probationer whose probation has been revoked because of a violation of its conditions may be extradited ... on the ground that he is a convict whose sentence has not expired, and who is 'charged with crime' within the meaning of the United States Constitution."


person is "charged with crime" under extradition act where there has been a judgment of conviction, the sentence has not expired, and the person has violated the terms of his probation


Context: The District Court also determined that Martin could not establish the> objective element of his claim because the deprivation of running water for just over a day was insufficiently serious to establish an Eighth Amendment violation. In determining whether the conditions of confinement amount to a constitutional violation, the " 'circumstances, nature, and duration' of the conditions must be carefully considered" but the "length of exposure #.. is often of prime importance."

"A filthy, overcrowded cell .., might be tolerable for a few days and intolerably cruel for weeks or months."

DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (citation omitted); see Hutto v. Finney, 437 U.S. 678, 686-87, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (“A filthy, overcrowded cell .., might be tolerable for a few days and intolerably cruel for weeks or months.”); see also Whitnack v. Douglas County, 16 F.3d 954, 958 (8th Cir. 1994) (“the length of time required before a constitutional violation is made out decreases as the level of filthiness endured increases”).

"the length of time required before a constitutional violation is made out decreases as the level of filthiness endured increases"


Context: The Court recognizes that Napue states that false testimony may require a new trial even where the falsehood does not bear directly upon defendant's guilt. But that part of Napue presumes that the falsehood bears on the witness's overall credibility and, in Napue itself, involved the crucial matter of whether the cooperating witness had been promised leniency.

"when a principal prosecution witness falsely claims that no promises of leniency were made ... the defendant may be entitled to a new trial on due process grounds"

See Napue, 360 U.S. at 267, 79 S.Ct. 1173 (the witness "had falsely testified that he had been promised no consideration for his testimony’’); see also United States v. Iverson, 637 F.2d 799, 801 (D.C.Cir.1980) ("when a principal prosecution witness falsely claims that no promises of leniency were made ... the defendant may be entitled to a new trial on due process grounds”), modified on other grounds, 648 F.2d 737 (D.C.Cir.1981).

the witness "had falsely testified that he had been promised no consideration for his testimony''


Context: Indeed, the PCC's own policies make clear that the timing of citizenship is not a work-related qualification. As noted in Part I, from 1984 to 1989 four plaintiffs received the PCC's equity adjustment package; yet there is no claim that their work was less acceptable than that of employees with earlier citizenship who also received the package during the same time period.

noting that hiring and transfer requirements that were inapplicable to some employees who nevertheless "perform satisfactorily ... suggests the possibility that the requirements may not be needed"

See Berger, 843 F.2d at 1421 (holding that five-month period in which employer did not insist on employment qualification precluded claim that it was a “minimum objective qualification,” and noting that employer could not rely on a qualification unless it “satisfies the bedrock requirements of job-relatedness”); cf. Griggs, 401 U.S. at 431-32, 91 S.Ct. 849 (noting that hiring and transfer requirements that were inapplicable to some employees who nevertheless “perform satisfactorily ... suggests the possibility that the requirements may not be needed”). Even more telling, the PCC continues to make the equity package and vacation benefits available to those who have never become American citizens, as long as they were recruited from outside of Panama. See 22 U.S.C. § 3646; PCC Cross-Motion (R. 13), Exs. 20, 54, 67.

holding that five-month period in which employer did not insist on employment qualification precluded claim that it was a "minimum objective qualification," and noting that employer could not rely on a qualification unless it "satisfies the bedrock requirements of job-relatedness"


Context: The record is fully developed and further administrative proceedings would serve no useful purpose. Furthermore, to remand the case for further proceedings would result in unnecessary delay on an application that plaintiff filed over four years ago.

See Balsamo v. Chater, 142 F.3d 75, 82 (2d Cir.1998)(remanding for benefits where application had been pending for four years); see also Curry v. Apfel, 209 F.3d 117, 124 (2d Cir.2000)(remanding for the sole purpose of calculating an award of benefits where record compelled finding of disability and plaintiffs application had been pending more than six years).


Context: To begin, the Supreme Court concluded that notice-of-alibi rules like those in Florida do not violate a defendant's due process rights under the Fifth and Fourteenth Amendments, including a defendant's privilege against self-incrimination. Similarly, a trial court does not violate a defendant's due process rights by requiring an evidentiary proffer.

"[Njoth-ing in the Fifth Amendment privilege entitles the defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense." (quoting Williams, 399 U.S. at 85, 90 S.Ct. 1893

Cummings v. Evans, 161 F.3d 610, 619 (10th Cir. 1998) (“[Njoth-ing in the Fifth Amendment privilege entitles the defendant as a matter of constitutional right to await the end of the State’s case before announcing the nature of his defense.” (quoting Williams, 399 U.S. at 85, 90 S.Ct. 1893)); Lakin v. Stine, 80 Fed.Appx. 368, 378 (6th Cir. 2003) (unpublished) (concluding that defendant’s failure, pre-trial, to establish sufficiency of duress defense as defined under Michigan law, deprived him of ability to present defense at trial and did not violate his due process rights); United States v. Sarno, 24 F.3d 618, 621 (4th Cir. 1994) (“[Wjhere there is insufficient evidence, as a matter of law, to support an element of the affirmative defense, the defendant can be precluded from presenting any evidence of duress to the jury,” and such a ruling does not violate a defendant’s due process rights).

"[I]t was entirely proper for the Trial Court to settle pretrial as many questions of law as possible [on the issue of duress/justification], including questions of relevancy and adequacy of certain lines of evidence."

See also Johnson v. State, 379 A.2d 1129, 1131 (Del. 1977) (“[I]t was entirely proper for the Trial Court to settle pretrial as many questions of law as possible [on the issue of duress/justification], including questions of relevancy and adequacy of certain lines of evidence.”).


"[Wjhere there is insufficient evidence, as a matter of law, to support an element of the affirmative defense, the defendant can be precluded from presenting any evidence of duress to the jury," and such a ruling does not violate a defendant's due process rights


Context: A trial court has broad discretion to determine challenges for cause, and appellate courts have almost never interfered with that discretion. However, the trial court's discretion is not unlimited.

"If upon such examination it appears that the [potential] juror is, from any cause, under any influence of fear, favor, or affection, or that he has in any way and on any cause made up an opinion as to the merits of the cause, he is ... an incompetent juror in that cause."

See also Fitzgerald v. People, 1 Colo. 56, 58 (1867) (“If upon such examination it appears that the [potential] juror is, from any cause, under any influence of fear, favor, or affection, or that he has in any way and on any cause made up an opinion as to the merits of the cause, he is ... an incompetent juror in that cause.”)

See People v. Rogers, 690 P.2d 886 (Colo.App.1984) (trial court abused discretion in denying challenge for cause where potential juror had close association with law enforcement establishment and crime scene in question); Beeman v. People, 193 Colo. 337, 340, 565 P.2d 1340, 1342 (1977) (trial court abused discretion in not excusing for cause juror whose daughter had possible earlier contact with defendant; “the most sincere assurances and good faith belief by the juror in her capacity to act impartially cannot compensate for factors which inherently produce prejudice”).


Context: For instance, the methods used to conduct the searches at issue are limited to visual inspections of vehicles and their trunks and brief examinations of the contents of ear-ry-on baggage. Ample notice is given to individuals seeking to board LCT ferries that they are subject to search and that they may avoid the search by exiting the premises.

"The point is ... that in order to bring itself within the test of reasonableness applicable to airport searches, the Government must give the citizen fair warning, before he enters the area of search, that he is at liberty to proceed no farther."

See MacWade, 460 F.3d at 273 (“[Pjassengers receive notice of the searches and may decline to be searched so long as they leave the subway....”); Edwards, 498 F.2d at 499-500 (finding notice central to upholding the constitutionality of airport searches where large signs had been posted near the boarding gates warning: “PASSENGERS AND BAGGAGE SUBJECT TO SEARCH”). Such notice helps “reduc[e] to a minimum any unsettling show of authority that may be associated with unexpected intrusions on privacy.” Von Raab, 489 U.S. at 672 n. 2, 109 S.Ct. 1384 (internal citation and quotation marks omitted); see also Edwards, 498 F.2d at 501 (“The point is ... that in order to bring itself within the test of reasonableness applicable to airport searches, the Government must give the citizen fair warning, before he enters the area of search, that he is at liberty to proceed no farther.”). Notice also serves to eliminate any stigma associated with the search.

"[Pjassengers receive notice of the searches and may decline to be searched so long as they leave the subway...."


finding notice central to upholding the constitutionality of airport searches where large signs had been posted near the boarding gates warning: "PASSENGERS AND BAGGAGE SUBJECT TO SEARCH"


Context: Therefore, she contends, the District Court could only have applied the drug trafficking guideline by way of the limited exception found in U.S.S.G. SS IB 1.2(a). She then argues that this exception would not apply to her because she did not stipulate to any facts that would establish the elements of any offense for which the drug trafficking guideline, U.S.S.G. SS 2D1.1, would apply.

applying an earlier version of U.S.S.G. SS 1B1.2 and looking to see whether a defendant had stipulated to facts that "specifically established" the elements of the offense the District Court sought to sentence the defendant under

See U.S.S.G. § IB 1.2, app. note 1 (explaining that U.S.S.G. § lB1.2(a) applies “in a case in which the elements of an offense more serious than the offense of conviction are established by a plea agreement”) (emphasis added); Braxton v. United States, 500 U.S. 344, 349-50, 114 L. Ed. 2d 385, 111 S. Ct. 1854 (1991) (applying an earlier version of U.S.S.G. § 1B1.2 and looking to see whether a defendant had stipulated to facts that “specifically established” the elements of the offense the District Court sought to sentence the defendant under); see also United States v. Nathan, 188 F.3d 190, 201 (3d Cir. 1999) (“the text of section lB1.2(a) ... indicates that a statement is a ‘stipulation only if: (i) it is part of a defendants written plea agreement; (ii) it is explicitly annexed thereto; or (iii) both the government and the defendant explicitly agree at a factual basis hearing that the facts being put on the record are stipulations that might subject a defendant to the provisions of section 1B1.2(a)”).

"the text of section lB1.2(a) ... indicates that a statement is a 'stipulation only if: (i


Context: Had the prosecution believed that any part of this argument opened the way to the jury's use of biblical texts in the jury room, it could have asked the trial court to allow their introduction and use. Surely, if this request had been made, the trial court would have limited the prosecution to, at most, a suitable responsive argument to the jury.

finding error where trial court agreed to jurors' request to take Bibles into jury room

See Jones v. Francis, 252 Ga. 60, 312 S.E.2d 300, 303 (1984)(in closing of penalty phase, defense counsel traced at length the changes in approach to punishment between the Old Testament and the New Testament, but it was still error to allow jurors to take Bible into jury room); cf. Kemp, 706 F.Supp. at 1560 (finding error where trial court agreed to jurors’ request to take Bibles into jury room).


Context: Granting the parties the right to file affidavits following oral argument was a measure necessary to settling the question. The Court of Appeals' action was proper and within its purview.

See Windham v. Sanders, 287 S.C. 170, 337 S.E.2d 205 (1985) (applying former rules governing appeals from a master-in-equity, the Supreme Court permitted appellant to supplement record on appeal following its submission with documentation demonstrating that direct appeal from the master was authorized by order of the Circuit Court or by consent of parties for the purpose of conclusively establishing whether subject matter jurisdiction in the appellate court existed); cf. Gray v. The Club Group, 339 S.C. 173, 528 S.E.2d 435 (Ct.App.2000), cert. denied (stating in a Workers’ Compensation case, subject matter jurisdiction is a question of law, which in turn permits the court to make findings of fact relating to jurisdiction).

stating in a Workers' Compensation case, subject matter jurisdiction is a question of law, which in turn permits the court to make findings of fact relating to jurisdiction


Context: We agree with the Hearing Committee that Respondent's violation of Rule 1.11(a) and the corresponding disqualification motion, without more, does not support a finding that the conduct was a serious interference with the administration of justice. Not every action that requires a court to decide a motion interferes with the administration of justice, even though the court expends resources in deciding the matter.

See In re Hallmark, 831 A.2d 366, 375 (D.C.2003) (holding that the submission of a deficient voucher undoubtedly “placed an unnecessary burden on the administrative processes of the Superior Court and on the presiding judge” but a Rule 8.4(d) violation generally requires “egregious conduct” or “intentional disregard for the effect that an action may have on judicial proceedings.”); see also In re Reynolds, 649 A.2d 818 (D.C.1994) (per curiam) (violation of conditions of probation in criminal case insufficient to prove violation of DR 1-102(A)(5) (predecessor to Rule 8.4(d)) although hearings had to be held).

holding that the submission of a deficient voucher undoubtedly "placed an unnecessary burden on the administrative processes of the Superior Court and on the presiding judge" but a Rule 8.4(d


Context: . While the district court did not discuss the constitutionality of the search of Robertson's person, its findings of fact are sufficient for us to resolve the issue without remand.

declining to remand for further findings on the defendant's privacy expectation "because the legally operative facts" were undisputed

See United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir.1990) (declining to remand for further findings on the defendant’s privacy expectation "because the legally operative facts” were undisputed); cf. United States v. Fields, 371 F.3d 910, 917 (7th Cir.2004) (remanding for further factual findings because the appellate court could not "review the record in a meaningful manner”).

remanding for further factual findings because the appellate court could not "review the record in a meaningful manner"


Context: This Court has already determined that a unitary filing with the EEOC in which the complainant checked the box at the bottom of the standard EEOC charge form requesting that the charge be filed with both the EEOC and the state agency satisfies the requirement that plaintiffs commence proceedings under state law. Other federal courts in Virginia have reached the same or similar conclusions.

But see Walker v. Electrolux Corp., 55 F.Supp.2d 501 (W.D.Va.1999) (holding that plaintiff had no jurisdiction in federal court because she failed to allege a state law claim, but declining to discuss pleading requirement to set forth charge of discrimination).

See Harris v. TJX Companies, Inc., 60 F.Supp.2d 562 (W.D.Va.1999) (holding that plaintiff had exhausted state remedies where EEOC transmitted charge to VCHR pursuant to the worksharing agreement and VCHR declined to investigate); Grimes v. Canadian American Transportation, C.A.T., Inc., Civ. Action No. 98-0409-R, 59 F.Supp.2d 572 (W.D.Va., Roanoke Div., July 28, 1999) (holding that jurisdiction in federal court is proper where plaintiff checked box and EEOC transmitted charge but VCHR declined to investigate); Flippo v. American Home Prods., 59 F.Supp.2d 572 (E.D.Va.1999) (holding same).


holding that jurisdiction in federal court is proper where plaintiff checked box and EEOC transmitted charge but VCHR declined to investigate


Context: Other federal circuit courts have also rejected the BOP's interpretation of the statute.

See Byrd v. Hasty, 142 F.3d 1395, 1397 (11th Cir.1998) (BOP could not rely on inmate’s firearm sentence enhancement to deny application for sentence reduction under § 3621 because violations of 21 U.S.C. §§ 846 and 841(a)(1) are not crimes of violence and § 3621(e)(2)(B) addresses the act of conviction, not sentence enhancement); Martin v. Gerlinski, 133 F.3d 1076 (8th Cir.1998); Bush v. Pitzer, 133 F.3d 455 (7th Cir.1997); Roussos v. Menifee, 122 F.3d 159 (3d Cir.1997); but see Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir.1999) (finding that the 1995 BOP regulation and program statement constitute a reasonable interpretation of the statute); Venegas v. Henman, 126 F.3d 760, 763 (5th Cir.1997), cert. denied, 523 U.S. 1108, 118 S.Ct. 1679, 140 L.Ed.2d 817 (1998); LaPlante v. Pontesso, 961 F.Supp. 186, 189 (E.D.Mich.1997) (Rosen, J.) (“The Court acknowledges that violations of 21 U.S.C. § 841(a)(1) generally are not considered to be crimes of violence under 18 U.S.C. § 924. This Court, however, has chosen to take a case by case approach here by inquiring into the facts underlying petitioner’s conviction.”).

BOP could not rely on inmate's firearm sentence enhancement to deny application for sentence reduction under SS 3621 because violations of 21 U.S.C. SSSS 846 and 841(a


"The Court acknowledges that violations of 21 U.S.C. SS 841(a


Context: It is hardly uncommon for a person's family members and friends to have photographs of the person and to know where he or she stays, while knowing little of -- or at least lacking "special familiarity" with -- the person's criminal activities. If there is any correlation between possession of a person's photograph or knowledge of the person's address and special knowledge of the person's criminal activities, it is likely a weak one, insufficient to create reasonable suspicion.

finding an anonymous tip sufficiently reliable because, inter alia, there were reasons to believe that the informant actually witnessed the criminal activity reported, and because the informant used the 911 emergency system -- thus makng it possible to identify him or her later

See White, 496 U.S. at 332, 110 S.Ct. 2412 (holding that an anonymous informant’s “ability to predict respondent’s future behavior” — namely, the route that respondent would take to deliver a package of cocaine — “demonstrated insidé information[,] a special familiarity with respóndent’s affairs,” and thus rendered the informant’s tip sufficiently reliable — although it was a “close case”); see also Navarette v. California, — U.S. -, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) (finding an anonymous tip sufficiently reliable because, inter alia, there were reasons to believe that the informant actually witnessed the criminal activity reported, and because the informant used the 911 emergency system — thus makng it possible to identify him or her later).

holding that an anonymous informant's "ability to predict respondent's future behavior" -- namely, the route that respondent would take to deliver a package of cocaine -- "demonstrated inside information[,] a special familiarity with respondent's affairs," and thus rendered the informant's tip sufficiently reliable -- although it was a "close case"


Context: The evidence which Aloi presented supports the inference that the Allen charge given by Judge Emmons was, under the circumstances of the case, coercive. This Court recognizes that, on at least one occasion, the Sixth Circuit upheld an Allen charge which mentioned the cost of the trial, but the Circuit did so without commenting on that aspect of the charge.

U.S. v. Mason, 658 F.2d 1263, 1266-67 (9th Cir. 1981); see also U.S. v. West, 877 F.2d 281, 291 (4th Cir.1989), cert. denied, 493 U.S. 869, 110 S.Ct. 195, 377, 1113, 107 L.Ed.2d 149 (1990) (disapproving reference, but finding that instruction in question “did not place undue emphasis on this factor” and therefore was not coercive); but cf. U.S. v. Rey, 811 F.2d 1453, 1459 (11th Cir.1987), cert. denied, 484 U.S. 830, 108 S.Ct. 103, 98 L.Ed.2d 63 (1987) (reluctantly upholding Allen charge which made reference to costs of trial in light of controlling precedent).

disapproving reference, but finding that instruction in question "did not place undue emphasis on this factor" and therefore was not coercive


Context: Elson may not have previously provided an opinion of this nature in the insurance setting -- a fact greatly relied upon by the trial judge -- but that is not dispositive.

observing that it "was not necessary for ... a well-qualified economist quantifying plaintiffs alleged losses [to also] be an expert on employability"

See Quinlan v. Curtiss-Wright Corp., 425 N.J.Super. 335, 372, 41 A.3d 739 (App. Div. 2012) (observing that it “was not necessary for ... a well-qualified economist quantifying plaintiffs alleged losses [to also] be an expert on employability”); see also Hammond v. Int’l Harvester Co., 691 F.2d 646, 652-53 (3d Cir. 1982) (holding that an engineer, whose only qualifications were sales experience in the field of automatic and agricultural equipment and teaching high school automobile repair, could testify in a products liability action involving tractors); Knight v. Otis Elevator Co., 596 F.2d 84, 87-88 (3d Cir. 1979) (holding that an expert could testify that unguarded elevator buttons constituted a design defect despite the expert’s lack of a specific background in design and manufacture of elevators). Although the determination as to whether our evidence rules permit admission of a particular expert’s testimony lies within the sound exercise of the trial judge’s discretion, see Hisenaj, supra, 194 N.J. at 16, 942 A.2d 769, we agree the trial judge mistakenly rested his order excluding Elson’s testimony on Elson’s lack of expertise in the insurance industry.


holding that an expert could testify that unguarded elevator buttons constituted a design defect despite the expert's lack of a specific background in design and manufacture of elevators


Context: This is not an instance where Plaintiff merely did not know that she needed to name the individual defendants in the caption but adequately described conduct attributed to them in her original complaints. Rather, as indicated, Plaintiffs original complaints are completely devoid of any factual allegations describing Bove or Holdren's role in U.S. Airways' denial of her accommodation or the grievance process.

distinguishing between a mistake, where "a plaintiff might know that the prospective defendant exists but nonetheless harbor a misunderstanding about his status or role in the events," and a "deliberate choice to sue one party instead of another while fully understanding the factual and legal differences between the two parties"

See Krupski 130 S.Ct. at 2494 (distinguishing between a mistake, where “a plaintiff might know that the prospective defendant exists but nonetheless harbor a misunderstanding about his status or role in the events,” and a “deliberate choice to sue one party instead of another while fully understanding the factual and legal differences between the two parties”); see also In re IndyMac Mortgage-Backed Sec. Litig., 718 F.Supp.2d at 507 (indicating that Rule 15 allows relation back to remedy instances where a plaintiff wrongfully identified a defendant “whose conduct is described in the complaint.”).

indicating that Rule 15 allows relation back to remedy instances where a plaintiff wrongfully identified a defendant "whose conduct is described in the complaint."


Context: P 29 Assuming, without deciding, that prosecutors knowingly pursued an intent to kill theory at trial in contravention of the court's order, as a matter of law, Martinson cannot establish the requisite prejudice arising from that conduct that would bar retrial on double jeopardy grounds.

See State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11, 172 P.3d 423 (App. 2007) (rejecting claim that prosecutorial misconduct barred retrial on double jeopardy grounds and holding there must be “intentional conduct which the prosecutor knows to be improper and prejudicial”) (emphasis added); see also State v. Towery, 186 Ariz. 168, 185, 920 P.2d 290 (1996) (where there has been misconduct but no error, or the error is harmless, the proper remedy is generally not reversal but affirmance followed by appropriate sanctions against the offending actor).

rejecting claim that prosecutorial misconduct barred retrial on double jeopardy grounds and holding there must be "intentional conduct which the prosecutor knows to be improper and prejudicial"


Context: Similarly, we would be hard-pressed to assume that such a layman has the lawyer's love of precision in language. The record sheds no light as to the specific form or content of the comments Jolliff made to Young. But even if we assume that those comments were Young's sole basis for including the logbooks statement in the letter, it is not unreasonable to believe that Jolliff was careless or at least inartful in his construction of his complaint and that Young was equally careless or inartful in his retelling of the complaint. Given these facts, it was unwarranted for the board to infer that Young had knowledge of the statement's falsity solely from the fact that Jolliff conceded he had not personally been asked to fix the logbooks.

"Courts must be cautious about letting libel cases go to the jury under the malice standard where there is no proof that the reporter or his newspaper knew or suspected that the statements in his article were false."

Street v. National Broadcasting Co., 645 F.2d 1227, 1236-37 (6th Cir.1981) (“When the truth is uncertain and seems undiscoverable through further investigation, reliance on other sources is not unreasonable.”); cf. Orr v. Argus-Press Co., 586 F.2d 1108, 1113 (6th Cir.1978) (“Courts must be cautious about letting libel cases go to the jury under the malice standard where there is no proof that the reporter or his newspaper knew or suspected that the statements in his article were false.”).

"When the truth is uncertain and seems undiscoverable through further investigation, reliance on other sources is not unreasonable."


Context: Considerations of fairness convince us that for purposes of deciding which law applies, the removal proceedings in this case should be viewed as commencing at least on that date, June 28, 1995, when the show cause order had been served and the warrant of detainer lodged.

asserting that "fairness requires that the INS, having placed Mercado under its authority, should also live with the results of that decision"

See Mercado-Amador, 47 F.Supp.2d at 1224 (asserting that “fairness requires that the INS, having placed Mercado under its authority, should also live with the results of that decision”); see also Canela v. United States Dept. of Justice, 64 F.Supp.2d 456, 458 (E.D.Pa.1999) (noting that “[t]he date at which the [INS] regulations consider a case to have commenced is essentially random”) (citation omitted).

noting that "[t]he date at which the [INS] regulations consider a case to have commenced is essentially random"


Context: An alien's delay in seeking asylum may weigh against credibility. We, however, have disregarded an alien's failure to claim persecution at the first possible moment where irregularities taint the IJ's other bases for finding the applicant not credible.

rejecting adverse credibility finding that was "improper because it relies far too much on [the IJ's] own personal experience and beliefs" even though one ground was alien's failure to mention persecution at initial airport screening interview

Huang v. Gonzales, 403 F.3d 945, 950-51 (7th Cir.2005) (rejecting adverse credibility finding that was “improper because it relies far too much on [the IJ’s] own personal experience and beliefs” even though one ground was alien’s failure to mention persecution at initial airport screening interview); cf. Georgis v. Ashcroft, 328 F.3d 962, 970 (7th Cir.2003) (vacating order of removal when five of six reasons for adverse credibility finding were improper or unsupported). On this record, we cannot say that this last ground — Kiggundu’s use of a business visa to enter the United States and his failure to immediately seek asylum once in the United States — is alone sufficient to uphold the adverse credibility finding.


Context: In addition to claiming that Congress did not intend the stop-time rule to be retroactively applied, Heaven also asserts that the retroactive application violates his due process rights. Even if Congress has been clear that a statute should be applied retroactively, retroactive application of the statute may still be impermissible if it violates a constitutional provision.

noting that Congress may enact retrospective laws "within constitutional limits"

See St. Cyr, 533 U.S. at 316,121 S.Ct. 2271 (noting that Congress may enact retrospective laws “within constitutional limits”); see also Landgraf, 511 U.S. at 267, 114 S.Ct. 1483 (noting that “[a]bsent a violation of [a constitutional provision], the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope”).

noting that "[a]bsent a violation of [a constitutional provision], the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope"


Context: Based on the district court's findings, we reject Holders' contention that Cronic's presumption applies simply because Shaw conceded the all-but-undisputable fact of his participation in the robbery.

Cronic standard does not apply where defense counsel conceded the underlying rape and robbery in view of "nearly conclusive proof' that the defendant committed the crimes, but "remained active at trial, probing weaknesses in the prosecution's case on the issue of intent"

See Haynes v. Cain, 298 F.3d 375, 381-82 (5th Cir.2002) (Cronic standard does not apply where defense counsel conceded the underlying rape and robbery in view of “nearly conclusive proof’ that the defendant committed the crimes, but “remained active at trial, probing weaknesses in the prosecution’s case on the issue of intent”); see also Bell v. Cone, 535 U.S. 685, 696-98, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (stating that Cronic’s per se rule applies only when “counsel fail[s] to oppose the prosecution throughout [a] ... proceeding as a whole,” not merely “at specific points” (emphasis added)); White, 341 F.3d at 678 (“The failure to oppose the prosecution’s case must involve the entire proceeding, not just isolated portions.”).

stating that Cronic's per se rule applies only when "counsel fail[s] to oppose the prosecution throughout [a] ... proceeding as a whole," not merely "at specific points" (emphasis added


"The failure to oppose the prosecution's case must involve the entire proceeding, not just isolated portions."


Context: That is, an employee may fail to prove an "unlawful employment practice" and nevertheless prevail on his claim of unlawful retaliation. However, the opposed conduct must fairly fall within the protection of Title VII to sustain a claim of unlawful retaliation.

"[although the [district] court made no explicit finding that Sias' opposition was based on a reasonable belief that the City's employment practices violated Title VII, such a finding is implicit here"

Silver v. KCA, Inc., 586 F.2d 138, 142 (9th Cir.1978) (“under the clear language of the “opposition” clause of [section] 704(a), a case of retaliation has not been made out unless the “retaliation” relates to the employee’s opposition to a [section] 703 violation”); see also Sias, 588 F.2d at 695-96 (“[although the [district] court made no explicit finding that Sias’ opposition was based on a reasonable belief that the City’s employment practices violated Title VII, such a finding is implicit here”) (footnote omitted).

"under the clear language of the "opposition" clause of [section] 704(a


Context: Lyons Aff., Ex. F, Homecoming Farm, Inc. ACVSMR Educ. Materials, ECF No. 95-2. Thus, the evidence indicates that Homecoming has offered services under the ACVSMR mark beginning in 2000. But the length of use of a mark, without more, is not sufficient to show the kind of consumer association required to achieve secondary meaning.

deciding that plaintiffs will likely prevail on secondary significance claim where mark was used for 16 years with "apparent considerable success" and "broad ... and pervasive" advertising

Lund Trading ApS v. Kohler Co., 118 F.Supp.2d 92, 111 (D.Mass.2000) (Gertner, J.) (deciding that evidence of more than twenty years of exclusive use of trademark is not sufficient to prove secondary meaning); cf. Shames v. Coontz, 882 F.Supp. 1173, 1174 (D.Mass.1995) (Lasker, J.) (deciding that plaintiffs will likely prevail on secondary significance claim where mark was used for 16 years with “apparent considerable success” and “broad ... and pervasive” advertising) (emphasis added).

"[C]ourts have summarily rejected claims of secondary meaning predicated solely upon the continued use of the mark for many years[J"

See Art Attacks Ink, 581 F.3d at 1146 (“[C]ourts have summarily rejected claims of secondary meaning predicated solely upon the continued use of the mark for many years[J”) (first alteration in original) (quoting Vision Center v. Opticks, 596 F.2d 111, 119 (5th Cir.1979)); I.P.


deciding that evidence of more than twenty years of exclusive use of trademark is not sufficient to prove secondary meaning


Context: The theory of a hostile-environment claim is that the cumulative effect of ongoing harassment is abusive. It would not be right to require a judgment against Haf-ford if the sum of all of the harassment he experienced was abusive, but the incidents could be separated into several categories, with no one category containing enough incidents to amount to "pervasive" harassment. Although there is enough evidence of racial harassment for that claim to stand on its own, the district court should allow at trial for consideration of the possibility that the racial animus of Hafford's co-workers was augmented by their bias against his religion.

See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-17 (10th Cir.1987) (answering in the affirmative the question “whether incidents of racial harassment which may, by themselves, be insufficient to support a racially hostile work environment claim can be combined with incidents of sexual harassment to prove a pervasive pattern of discriminatory harassment in violation of Title VII”); cf. Conlin v. Blanchard, 890 F.2d 811 (6th Cir.1989) (allowing white men to pursue sex discrimination claim based on affirmative action policy that sought to increase employment of women and racial minorities).

answering in the affirmative the question "whether incidents of racial harassment which may, by themselves, be insufficient to support a racially hostile work environment claim can be combined with incidents of sexual harassment to prove a pervasive pattern of discriminatory harassment in violation of Title VII"


Context: Because of this mandate, the suspension or rescission of a noncustodial parent's visitation rights is a grave matter and one not to be entered into lightly.

"It is against public policy to destroy or to limit the relation of a parent and child [and, therefore, as] a general rule, both parents should see their children and the estrangement of parent and child should be avoided wherever possible."

See Breznick v. Breznick, 127 Vt. 80, 82-83, 238 A.2d 643, 645-46 (1968) (“[T]he law attempts to preserve . . . the relationship between each parent and child, in spite of the legal separation [and, therefore, unless] some sufficient opposing cause, relating to the welfare of the child, is shown, a visitation privilege of some sort is the right of a parent as a matter of course.”); Cleverly v. Cleverly, 147 Vt. 154, 157, 513 A.2d 612, 614 (1986) (“A visitation privilege of some sort is the right of a parent unless good cause exists to deny visitation.”); see also In re Duckworth, 146 A.2d 365, 367 (Pa. Super. Ct. 1958) (“It is against public policy to destroy or to limit the relation of a parent and child [and, therefore, as] a general rule, both parents should see their children and the estrangement of parent and child should be avoided wherever possible.”).

"[T]he law attempts to preserve . . . the relationship between each parent and child, in spite of the legal separation [and, therefore, unless] some sufficient opposing cause, relating to the welfare of the child, is shown, a visitation privilege of some sort is the right of a parent as a matter of course."


"A visitation privilege of some sort is the right of a parent unless good cause exists to deny visitation."


Context: In and of itself, Paragraph 6 is no more than a legal conclusion. Therefore, the language in that paragraph does not sustain this complaint against a challenge on sufficiency grounds.

rejecting argument that plaintiff properly pleaded that defendant was "debt collector" when only conclusions of law were offered

See Garland v. Enterprise Leasing Co., 1999 WL 1077075 *1 (E.D.Pa.) (rejecting argument that plaintiff properly pleaded that defendant was “debt collector” when only conclusions of law were offered); Williams v. Edelman, 408 F.Supp.2d 1261, 1265 (S.D.Fla.2005) (stating that mere allegation that defendant is a “debt collector” fails to satisfy pleading requirement); see also Bilal v. Chase Manhattan Mortgage Corp., 2006 WL 1650008 *3 (N.D.Ill.) (dismissing count which identifies defendant as “debt collector” without any factual basis); and see also Havens-Tobias v. Eagle, 127 F.Supp.2d 889, 896 (S.D.Ohio 2001) (stating in dicta that legal conclusions regarding defendant’s alleged status as “debt collector” insufficient to survive motion to dismiss; complaint dismissed for lack of factual allegations of FDCPA violation).

dismissing count which identifies defendant as "debt collector" without any factual basis


stating that mere allegation that defendant is a "debt collector" fails to satisfy pleading requirement


Context: Many courts that have addressed this issue have concluded that " 'mere legal error' is insufficient to support a finding of ethical misconduct." We note that the majority of cases cited by both petitioner and the commission concerning judicial misconduct based on legal error resulted from multiple instances of misconduct and involved more than a single litigant.

See Matter of Benoit, 487 A.2d 1158, 1162-63 (Me.1985) (holding that “[something more than a mere error of law is required to constitute misconduct”); see also In re Scott, 377 Mass. 364, 386 N.E.2d 218, 221 (1979) (holding that a judge committed misconduct when, for six years, she followed a course of judicial conduct that violated the legal and constitutional rights of the parties appearing before her).

holding that "[something more than a mere error of law is required to constitute misconduct"