Context: It contained no specific terms as to the length of employment and created an at-will employment relationship. The employer's label of "independent contractor" carries little weight in defining the Guards' status as independent contractors; after all, the purpose of the economic realities test is to set aside such conclusory classifications and evaluate the totality of circumstances bearing on the working relationship.

"[Fjacile labels and subjective factors are only relevant to the extent that they mirror 'economic reality.' "

Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir.1992) (status as an employee under FLSA depends on the “economic reality” of the employment relationship, rather than any “technical label”); Rutherford Food Corp. v. McComb, 331 U.S. 722, 729, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947); see, e.g., Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1044 (5th Cir.1987) (“[Fjacile labels and subjective factors are only relevant to the extent that they mirror ‘economic reality.’ ”).

status as an employee under FLSA depends on the "economic reality" of the employment relationship, rather than any "technical label"


Context: The most nearly analogous cases sustaining convictions for mail fraud have involved sales tactics and representations which have tended to mislead the purchaser, or prospective purchaser, as to the quality or effectiveness of the thing being sold, or to mislead him with regard to the advantages of the bargain which should accrue to him. Thus claims or statements in advertising may go beyond mere puffing and enter the realm of fraud where the product must inherently fail to do what is claimed for it. And promotion of an inherently useful item may also be fraud when the scheme of promotion is based on claims of additional benefits to accrue to the customer, if the benefits as represented are not realistically attainable by the customer.

similar knitting machine promotion -- conviction reversed for insufficiency of evidence to establish intent to defraud

But see United States v. Rabinowitz, 327 F.2d 62 (6th Cir. 1964) (similar knitting machine promotion — conviction reversed for insufficiency of evidence to establish intent to defraud).

carpet sold at inflated price on customer's expectation that defendant's "chain referral" scheme would return purchase price and produce profit for him

United States v. Armantrout, 411 F.2d 60, 64 (2d Cir. May 16, 1969) (carpet sold at inflated price on customer’s expectation that defendant’s “chain referral” scheme would return purchase price and produce profit for him); United States v. Baren, 305 F.2d 527 (2d Cir. 1962) (promotion of knitting machines on representation that women customers could easily make complicated knitted garmets for profitable resale, after it became known that average prospects could not so operate them).


promotion of knitting machines on representation that women customers could easily make complicated knitted garmets for profitable resale, after it became known that average prospects could not so operate them


Context: There is no dispute that the IDEA required the implementation of the final decision of the SEHO.

"[I]t [would] be curious for Congress to have established section 1415's detailed procedural apparatus solely in order to generate advisory opinions."

See Robinson v. Pinderhughes, 810 F.2d 1270, 1274 (4th Cir.1987) (holding that IDEA’S procedural requirements “can only be fairly construed to contemplate that once a final favorable administrative decision has been gained by a plaintiff, the State will carry out that decision although it may have opposed the position of the plaintiff in the administrative proceedings”); see also Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d 272, 279 n. 13 (3rd Cir.1996) (“[I]t [would] be curious for Congress to have established section 1415’s detailed procedural apparatus solely in order to generate advisory opinions.”).

holding that IDEA'S procedural requirements "can only be fairly construed to contemplate that once a final favorable administrative decision has been gained by a plaintiff, the State will carry out that decision although it may have opposed the position of the plaintiff in the administrative proceedings"


Context: While the magistrate may not have had the authority to enter the order under Ind.Code SS 33-24-5-8, Father does not argue on appeal that the order was defective because it contained the signature of the magistrate only and the record does not indicate that either party argued below that die order was defective for failing to contain the judge's signature or another indication the order was approved by the trial court. Accordingly, the parties have waived any challenge to the validity of the appealed order by failing to make any objection or call the court's attention to the issue.

See Tapia v. State, 753 N.E.2d 581, 588 (Ind.2001) (noting that Tapia claimed that a magistrate who issued several orders in his case lacked authority over his post-conviction proceedings and holding that Tapia waived any claims in regards to the magistrate’s authority because he failed to object); In re Involuntary Commitment of A.M., 959 N.E.2d 832, 834 n. 1 (Ind.Ct.App.2011) (noting some irregularities with the final appealed order in the case and that the order of commitment was defective because it was signed only by a magistrate and holding that, the “defect notwithstanding, A.M. has waived any claim to reversible error because she did not raise it at the hearing or on appeal’’ and that "having failed to timely call the court's attention to1 the commitment order signed only by [the magistrate], A.M. has waived the issue for our review”); City of Indianapolis v. Hicks, 932 N.E.2d 227, 230-231 (Ind.Ct.App.2010) (holding that, while a magistrate lacked the authority to enter an order granting a motion to correct error and thus that the order was defective for failing to contain the judge's signature or another indication it was approved or adopted by the trial court, the City waived any challenge to the validity of the order by failing to make a timely objection and observing that the Indiana Supreme Court “has long held that defects in the authority of a court officer, as opposed to the jurisdiction of the trial court itself, to enter a final order will be waived if not raised through a timely objection” and ”[m]ore recently, this court has applied the same principle to civil proceedings and clarified that any objection to the authority of an adjudicative officer must be raised at the first instance the irregularity occurs, or at least within such time as the tribunal is able to remedy the defect”) (citations omitted), reh’g denied, trans. denied; see also Sullivan v. City of Evansville, 728 N.E.2d 182, 187-191 (Ind.Ct.App.2000) (holding that appellant, by failing to object to commissioners' authority before or at the administrative hearing, waived any challenge).

noting that Tapia claimed that a magistrate who issued several orders in his case lacked authority over his post-conviction proceedings and holding that Tapia waived any claims in regards to the magistrate's authority because he failed to object


noting some irregularities with the final appealed order in the case and that the order of commitment was defective because it was signed only by a magistrate and holding that, the "defect notwithstanding, A.M. has waived any claim to reversible error because she did not raise it at the hearing or on appeal'' and that "having failed to timely call the court's attention to1 the commitment order signed only by [the magistrate], A.M. has waived the issue for our review"


holding that, while a magistrate lacked the authority to enter an order granting a motion to correct error and thus that the order was defective for failing to contain the judge's signature or another indication it was approved or adopted by the trial court, the City waived any challenge to the validity of the order by failing to make a timely objection and observing that the Indiana Supreme Court "has long held that defects in the authority of a court officer, as opposed to the jurisdiction of the trial court itself, to enter a final order will be waived if not raised through a timely objection" and "[m]ore recently, this court has applied the same principle to civil proceedings and clarified that any objection to the authority of an adjudicative officer must be raised at the first instance the irregularity occurs, or at least within such time as the tribunal is able to remedy the defect"


Context: This is not enough by itself to render her tax debt nondischargeable. Unless her non-payment was "knowing and deliberate," the tax obligations were discharged in her bankruptcy.

holding that mere non-payment is not sufficient to satisfy the conduct element of SS 523(a

See Stamper, 360 F.3d at 557 (noting that “a ‘knowing and deliberate’ nonpayment provides the basis for determining that the tax debt is non-dischargeable”); but see Haas v. IRS (In re Haas), 48 F.3d 1153, 1158 (11th Cir.1995) (holding that mere non-payment is not sufficient to satisfy the conduct element of § 523(a)(1)(C), and thereby the government’s burden, without regard to debtor’s mental state), overruled in part by Griffith v. United States (In re Griffith), 206 F.3d 1389, 1396 (11th Cir.2000) (en banc); see also United States v. Fretz (In re Fretz), 244 F.3d 1323, 1328-29 (11th Cir.2001).

noting that "a 'knowing and deliberate' nonpayment provides the basis for determining that the tax debt is non-dischargeable"


Context: We reject Morales' contention that due process was violated by denial'of continuance.

See Lata, 204 F.3d at 1246 (requiring error and prejudice to prevail on a due process challenge).

"[T]he IJ [is] not required to grant a continuance based on ... speculation."

See also Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir.2011) (“[T]he IJ [is] not required to grant a continuance based on ... speculation.”).


Context: In the second scenario, Brown's belief would have been correct; the third scenario admits the possibility of reasonable mistake. That difference is irrelevant to the probable cause requirement urged by the majority.

See Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (explaining that probable cause does not demand that officer’s good-faith belief “be correct or more likely true than false”); see also Penley v. Eslinger, 605 F.3d 843, 853 (11th Cir.2010) (affirming judgment for officers on claim that they used excessive force by shooting student waving toy gun).

explaining that probable cause does not demand that officer's good-faith belief "be correct or more likely true than false"


Context: The Court concludes that the fact that the moving institutional defendants entered into the Institutional Match Contract and communicated information concerning their individual programs to the NRMP up to ten times a year in order to effectuate an accurate Match does not by itself form a basis for personal jurisdiction.

non-forum defendant's phone calls and ten to twenty faxes to in-forum plaintiff during course of contract negotiation were insufficient to establish minimum contacts under transacting business prong of state long-arm

See Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1076-77 (10th Cir.1995) (non-forum defendant’s phone calls and ten to twenty faxes to in-forum plaintiff during course of contract negotiation were insufficient to establish minimum contacts under transacting business prong of state long-arm); see also Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 213 (5th Cir.1999) (defendant’s numerous communications into forum cannot serve as basis of jurisdiction if they do not themselves form basis of complaint). The Court must focus on the quality of the contacts rather than their quantity.

defendant's numerous communications into forum cannot serve as basis of jurisdiction if they do not themselves form basis of complaint


Context: Courts have generally allowed paid informants to testify as long as the agreements are not contingent upon the conviction of particular persons.

informant's testimony admissible because reward was not dependent upon making a case against particular persons specified in advance

See, e.g., United States v. Walker, 720 F.2d 1527, 1539-40 (11th Cir.1983), cert. denied, Gustin v. United States, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984) (informant’s testimony admissible because reward was not dependent upon making a case against particular persons specified in advance); United States v. Gray, 626 F.2d 494, 499 (5th Cir.1980), cert. denied, 449 U.S. 1091, 101 S.Ct. 887, 66 L.Ed.2d 820 (1981) (same).

". . . [Bjenefits made contingent upon subsequent indictments or convictions skate very close to, if indeed they do not cross, the limits imposed by the due process clause."

Cf. United States v. Dailey, 759 F.2d 192, 201 n. 9 (1st Cir.1985) (“. . . [Bjenefits made contingent upon subsequent indictments or convictions skate very close to, if indeed they do not cross, the limits imposed by the due process clause.”).


Context: To avoid the procedural default bar, a habeas petitioner claiming a structural error need not show actual prejudice.

"If [an error] did constitute structural error, there would be per se prejudice, and harmless error analysis, in whatever form, would not apply."

Owens v. United States, 483 F.3d 48, 64-65 (1 st Cir.2007) (holding that “a defendant who is seeking to excuse a procedurally defaulted claim of structural error need not establish actual prejudice”); see also Sustache-Rivera v. United States, 221 F.3d 8, 17 (1st Cir.2000) (“If [an error] did constitute structural error, there would be per se prejudice, and harmless error analysis, in whatever form, would not apply.”); Becht v. United States, 403 F.3d 541, 549 (8th Cir.2005) (suggesting, but not deciding, that counsel’s failure to raise a structural error on appeal would constitute per se prejudice); McGurk v. Stenberg, 163 F.3d 470, 475 (8th Cir.1998) (holding that where counsel’s deficient performance resulted in structural error, prejudice will be presumed); United States v. Canady, 126 F.3d 352, 364 (2d Cir.1997) (even though habeas petitioner had not raised public trial claim on direct appeal, deciding that he was entitled to relief because public trial claim is structural error).

holding that "a defendant who is seeking to excuse a procedurally defaulted claim of structural error need not establish actual prejudice"


suggesting, but not deciding, that counsel's failure to raise a structural error on appeal would constitute per se prejudice


holding that where counsel's deficient performance resulted in structural error, prejudice will be presumed


even though habeas petitioner had not raised public trial claim on direct appeal, deciding that he was entitled to relief because public trial claim is structural error


Context: To the extent that the Secretary contends that, to preserve the SS 3.156(c) issue for judicial review, Mr. Emerson was required to articulate as fully developed an argument before the Board as he now presents, such contention is not consistent with case law.

holding that "[i]n direct appeals, all filings must be read  1/8  a liberal manner' whether or not the veteran is represented"

See Robinson I, 21 Vet.App. at 553 (“As a nonadversarial adjudicator, the Board’s obligation to analyze claims goes beyond the arguments explicitly made.”); see also Robinson II, 557 F.3d at 1361 (holding that “[i]n direct appeals, all filings must be read ⅛ a liberal manner’ whether or not the veteran is represented”).

"As a nonadversarial adjudicator, the Board's obligation to analyze claims goes beyond the arguments explicitly made."


Context: Where agency publications have not been so promulgated, the agency's decision to analyze impacts by other methods is not an automatic violation of the law. As such, it is subject to review under the normal "arbitrary and capricious standard" used to review agency action under the APA.

"Thus the Air Force retained discretion to analyze impacts on livestock by methods other than those contained in the Handbook, and we must address the adequacy of the Air Force's chosen method according to the arbitrary and capricious standard"

Davis Mountains, 116 Fed.Appx. at 9-10 (“Thus the Air Force retained discretion to analyze impacts on livestock by methods other than those contained in the Handbook, and we must address the adequacy of the Air Force’s chosen method according to the arbitrary and capricious standard”); see also Communities Against Runway Expansion, Inc. (CARE) v. F.A.A., 355 F.3d 678, 688 (D.C.Cir.2004) (holding that even though an executive order mandating agency consideration of environmental justice concerns created no private right of action for an agency’s failure to comply with that mandate, the court would review the agency’s action as an exercise of discretion under the APA and NEPA).

holding that even though an executive order mandating agency consideration of environmental justice concerns created no private right of action for an agency's failure to comply with that mandate, the court would review the agency's action as an exercise of discretion under the APA and NEPA


Context: In 1994, however, the legislature amended the statutory definition of the insanity defense and shifted the burden of proof entirely to the defendant. Insanity was declared an affirmative defense that the defendant must prove "by a preponderance of the evidence."

holding that the trial court correctly instructed the jury that the "defendant had to establish by evidence that outweighed the evidence against him that he lacked the capacity to form specific intent"

Mette, 621 N.W.2d at 719 (holding that the trial court correctly instructed the jury that the “defendant had to establish by evidence that outweighed the evidence against him that he lacked the capacity to form specific intent”); see also Carpenter, 627 N.W.2d at 282 (“[T]he Court of Appeals held that a defendant seeking to present a diminished capacity defense bears the burden of establishing such a defense by a preponderance of the evidence.”).

"[T]he Court of Appeals held that a defendant seeking to present a diminished capacity defense bears the burden of establishing such a defense by a preponderance of the evidence."


Context: (ECF No. 41-8 at 8.) The Board does not dispute that it learned of these complaints before July 26, 2013, the date it demoted Brown to vice principal and transferred him to Kingsbury Elementary School. (ECF No. 41-6 at 9-10.) The filing of complaints occurred a little over three months before the demotion--which is not "prohibitively remote" under Second Circuit caselaw.

Summa, 708 F.3d at 128 (finding that seven months between the retaliatory action and the protected activity satisfied causal requirement); see also Gorman-Bakos v. Cornell Co-op. Extension of Schenectedy Cty., 252 F.3d 545, 555 (2d Cir. 2001)(suggesting the lapse of five months between protected activity and retaliation may show a causal connection); Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009)(concluding that lapse of “only six months between dismissal of [plaintiffs] lawsuit” and retaliatory conduct was sufficient for causal connection).


concluding that lapse of "only six months between dismissal of [plaintiffs] lawsuit" and retaliatory conduct was sufficient for causal connection


Context: Bituminous has cited to several federal statutes in its complaint, none of which alone can act as a waiver of sovereign immunity.

noting that because plaintiff had named the secretary of the U.S. Department of Housing and Urban Development in his official capacity in his complaint, plaintiff had to identify a waiver of sovereign immunity, as well as invoke 28 U.S.C. SS 1331, in order to proceed

See, e.g., Toledo v. Jackson, 485 F.3d 836, 838 (6th Cir.2007) (noting that because plaintiff had named the secretary of the U.S. Department of Housing and Urban Development in his official capacity in his complaint, plaintiff had to identify a waiver of sovereign immunity, as well as invoke 28 U.S.C. § 1331, in order to proceed); see also Dover v. United States, 2008 WL 2704446, at *1 (E.D.Tenn. July 3, 2008) (“The Declaratory Judgment Act [codified at 28 U.S.C. § 2201, et seq.] does not provide a waiver of sovereign immunity.”).

"The Declaratory Judgment Act [codified at 28 U.S.C. SS 2201, et seq.] does not provide a waiver of sovereign immunity."


Context: Finally, this Court has recognized that jury verdicts improperly influenced by passion and prejudice can be indicated by their size.

finding a large verdict accompanied by a prejudicial closing argument can lead to the conclusion that the argument had an influential impact upon the jury's deliberations

Whitehead, 163 F.3d at 278 (“Without deciding that the awards are excessive, we note that, at the very least, they are at the high end of the spectrum for such damages.”); see also Westbrook v. Gen. Tire & Rubber Co., 754 F.2d 1233, 1240 (5th Cir.1985) (finding a large verdict accompanied by a prejudicial closing argument can lead to the conclusion that the argument had an influential impact upon the jury’s deliberations).

"Without deciding that the awards are excessive, we note that, at the very least, they are at the high end of the spectrum for such damages."


Context: As to victim McCaskill, Johnson highlights evidence suggesting that he received substandard treatment while in the nursing home. However, even construing the evidence so as to find that these other factors contributed to the victims' deaths, the fact remains that the violent attacks Johnson perpetrated against both victims constituted the proximate cause of both of their deaths.

proximate causation established by evidence that underlying felony " 'directly and materially contributed to the happening of a subsequent accruing immediate cause of the death' "

See Davis v. State, 290 Ga. 757, 760 (4) (725 SE2d 280) (2012) (proximate causation established by evidence that underlying felony “ ‘directly and materially contributed to the happening of a subsequent accruing immediate cause of the death’ ”); see also Larkin v. State, 247 Ga. 586 (1) (278 SE2d 365) (1981) (knife attack by defendant was proximate cause of victim’s death, where victim died from complications of surgery performed on knife wound); Wilson v. State, 190 Ga. 824 (2) (10 SE2d 861) (1940) (assault by defendant was proximate cause of victim’s death, where victim died nine months after assault from infection that was secondary to the wounds sustained in the assault).

knife attack by defendant was proximate cause of victim's death, where victim died from complications of surgery performed on knife wound


assault by defendant was proximate cause of victim's death, where victim died nine months after assault from infection that was secondary to the wounds sustained in the assault


Context: The district court properly invoked the "compelling reasons" standard in considering the sealing request. The only reasons provided for sealing the records--to avoid embarrassment or annoyance to Kontrabecki and to prevent an undue burden on his professional endeavors--are not "compelling," particularly because the proceedings had been a matter of public record since at least 2004.

"[A] naked conclusory statement that publication of the Report will injure the bank in the industry and local community falls woeful ly short of the kind of showing which raises even an arguable issue as to whether it may be kept under seal."

See Kamakana, 447 F.3d at 1179 (“The mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.”); see also Joy, 692 F.2d at 894 (“[A] naked conclusory statement that publication of the Report will injure the bank in the industry and local community falls woeful ly short of the kind of showing which raises even an arguable issue as to whether it may be kept under seal.”).

"The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records."


Context: In a similar case, a sister court of appeals determined "[a] police department cannot be forced to let individual officers add religious symbols to their official uniforms." In Daniels, a police officer refused to remove a gold cross pin on his uniform, in non-compliance with a no-pins official policy.

"The importance of public confidence in the neutrality of its protectors is so great that a police department or a fire department ... should be able to plead 'undue hardship'.... "

Id. at 503. Other courts have recognized the interests of a governmental entity in maintaining the appearance of neutrality. See, e.g., Rodriguez v. City of Chicago, 156 F.3d 771, 779 (7th Cir.1998) (Posner, C.J., concurring) (“The importance of public confidence in the neutrality of its protectors is so great that a police department or a fire department ... should be able to plead ‘undue hardship’.... ”); Paulos v. Breier, 507 F.2d 1383, 1386 (7th Cir.1974) (recognizing and protecting the interest of municipality in preserving nonpartisan police force and appearance thereof); see also United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) (“[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.”).

"[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent."


recognizing and protecting the interest of municipality in preserving nonpartisan police force and appearance thereof


Context: Taking these standards into account, the Court does not hesitate to conclude that Mullin's argument fails to meet the high threshold for'nonrecognition on public policy grounds. Lloyd's cause of action in the English Action was for breach of contract. There is no support for any contention that a cause of action for breach of contract is repugnant to Pennsylvania public policy.

See Turner, 303 F.3d at 333 (affirming recognition of judgment obtained by Lloyds against a Name, and rejecting argument that breach of contract cause of action contravenes Texas public policy); Southwest Livestock & Trucking Co. v. Ramon, 169 F.3d 317, 321 (5th Cir.1999) (holding “cause of action for collection on a promissory note” is not repugnant to Texas public policy); cf. J.F.Walker Co., Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269, 1272 (Pa.Super.2002) (listing essential elements of breach of contract claim under Pennsylvania law).


holding "cause of action for collection on a promissory note" is not repugnant to Texas public policy


Context: Nor is there any evidence that Bratt caused the destruction or loss of the tape or that its destruction or loss was undertaken in bad faith. No inference of bad faith would arise from the destruction of the tape pursuant to routine policy after the conclusion of a criminal case, particularly in view of the fact that plaintiff apparently never sought the tape while it was in the defendants' possession.

A Brady violation that resulted in the overturning of the SS 1983 plaintiffs conviction is a necessary, but not a sufficient, condition for SS 1983 liability on the part of the police.

See also Jean v. Collins, 221 F.3d 656, 663 (4th Cir.2000) (A Brady violation that resulted in the overturning of the § 1983 plaintiffs conviction is a necessary, but not a sufficient, condition for § 1983 liability on the part of the police.).

the withholding or destruction of evidence violates a criminal defendant's constitutional rights only if, as a result of the withholding or destruction of evidence, the criminal defendant is denied a fair trial

See Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir.1999) (the withholding or destruction of evidence violates a criminal defendant’s constitutional rights only if, as a result of the withholding or destruction of evidence, the criminal defendant is denied a fair trial).


Context: Thus, Prolacto has availed itself of not only United States law, but of District of Columbia law. A party that chooses to initiate litigation and invoke the legal protections of the forum should expect to appear for deposition in that jurisdiction.

See Cobell v. Norton, 213 F.R.D. 43, 47 (D.D.C.2003) (holding that an elderly named representative class member failed to present sufficient evidence that his health problems require holding his deposition in Montana rather than Washington, D.C.); see also Dollar Sys., Inc. v. Tomlin, 102 F.R.D. 93, 94 (M.D.Tenn.1984) (“[Ajccording to another general rule, the plaintiff will not be heard to complain about having to appear in the forum-district for the taking of its deposition, since it selected that forum in the first instance.”).

"[Ajccording to another general rule, the plaintiff will not be heard to complain about having to appear in the forum-district for the taking of its deposition, since it selected that forum in the first instance."


Context: . We view the district court's rejection of the section 333(b) felony theory argued by the government at trial as an implied acquittal of charges based on that theory. An implied acquittal bars reprosecution.

holding that jury's failure to address first degree murder charge amounted to a verdict of not guilty on that charge

Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (holding that jury’s failure to address first degree murder charge amounted to a verdict of not guilty on that charge); see also Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978) (according same weight to an acquittal by a jury, or in a bench trial, or on appellate review); Bullard v. Estelle, 665 F.2d 1347, 1355 nn. 17-18 (5th Cir.1982) (discussing this aspect of Burks and indicating same weight applies to implied acquittals), vacated on other grounds, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983).


discussing this aspect of Burks and indicating same weight applies to implied acquittals


Context: In other words, they apply to a myriad of decisions made by political or taxing subdivisions or their agencies. So our adoption of reasonableness as a basis for judicial review of a unilateral annexation decision is also consistent with our preference for specific rules over general ones.

See Vontress v. State, 299 Kan. 607, 613, 325 P.3d 1114 (2014) (a specific statute controls over a general one when the relevant provisions overlap); see also State v. Williams, 299 Kan. 911, 930, 329 P.3d 400 (2014) (rule that general statute should yield to specific one is rule of interpretation used to determine which statute legislature intended to be applied in particular case).


Context: We agree with the district court that the comments of the United States Attorney to the victim during the lineup to "take her time" were unwise.

a model statute "would enjoin the police from suggesting to any viewer that one or more persons in the lineup had been arrested as a suspect"

See also id. at 236 n. 26, 87 S.Ct. at 1937 (a model statute “would enjoin the police from suggesting to any viewer that one or more persons in the lineup had been arrested as a suspect”). In Simmons v. United States, 390 U.S. 377, 385, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Court noted that there was no evidence of verbal guidance by the police.

"[i]n effect, the police repeatedly said to the witness, 'This is the man' "

Cf. Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 1129, 22 L.Ed.2d 402 (1969) (“[i]n effect, the police repeatedly said to the witness, ‘This is the man’ ”).


Context: For that reason, SDCL 15-6-23 is not applicable via SDCL 1-26-32.1. Therefore, we hold that neither SDCL ch. 1-26 nor SDCL ch. 10-59 authorize class action claims against the State nor waive sovereign immunity to such an extent as to allow class actions.

noting "a taxpayer" and "the taxpayer" in New Mexico refund statute require individual claims as prerequisite to appellate jurisdiction

See Lick, 285 N.W.2d at 600 (“The [S]tate has waived its right of sovereign immunity only to the extent provided by the express terms of [the applicable refund] statutes.” (citing Darnall, 79 S.D. 59, 108 N.W.2d 201)); see also U.S. Xpress, 139 N.M. at 591-92, 136 P.3d at 1001-02 (noting “a taxpayer” and “the taxpayer” in New Mexico refund statute require individual claims as prerequisite to appellate jurisdiction).

"The [S]tate has waived its right of sovereign immunity only to the extent provided by the express terms of [the applicable refund] statutes." (citing Darnall, 79 S.D. 59, 108 N.W.2d 201


Context: As the majority candidly acknowledges, the cases on which it relies only hold that constructive possession may be inferred from a defendant's exclusive control of the premises in which the firearms are found; the cases do not indicate that a defendant's exclusive control of the premises necessitates an inference of constructive possession.

holding that "the defendant's dominion, control, and knowledge may be inferred if he had exclusive possession of the premises on which the object was found" (emphasis added

See United States v. Hishaw, 235 F.3d 565, 571 (10th Cir. 2000) (holding that “the defendant’s dominion, control, and knowledge may be inferred if he had exclusive possession of the premises on which the object was found” (emphasis added)); see also United States v. Griffin, 684 F.3d 691, 695 (7th Cir. 2012) (noting that “if the government demonstrates that the defendant had ‘exclusive control’ over the property where the contraband was discovered, a jury may reasonably infer that he constructively possessed the items, including the contraband, found on that property” (emphasis added)); United States v. Alanis, 265 F.3d 576, 592 (7th Cir. 2001) (holding that “constructive possession may be established by a showing that the firearm was seized at the defendant’s residence” (emphasis added) (quoting United States v. Walls, 225 F.3d 858, 867 (7th Cir. 2000))).

noting that "if the government demonstrates that the defendant had 'exclusive control' over the property where the contraband was discovered, a jury may reasonably infer that he constructively possessed the items, including the contraband, found on that property" (emphasis added


Context: The thrust of this argument seems to be that application of the Heck doctrine would deprive Huey of a federal forum for his Eighth Amendment claim. Because he is no longer "in custody" for his disciplinary infraction, Huey cannot seek a writ of habeas corpus challenging the legality of his detention.

stating that "[t]he federal habeas corpus statute requires that the applicant must be 'in custody' when the application for habeas corpus is filed."

See Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (stating that “[t]he federal habeas corpus statute requires that the applicant must be ‘in custody’ when the application for habeas corpus is filed.”); see also Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.”).

"When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal."


Context: First, the petitioner must establish that his attorney acted under an actual conflict of interest, not merely a potential one. Second, the petitioner must establish that the conflict of interest actually affected the adequacy of the representation.

Cf. Wood v. Georgia, 450 U.S. 261, 268, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) (finding sufficient possibility of conflict of interest to remand for fact finding on issue of actual conflict of interest where employer hired attorney to defend employees); Quintero v. United States, 33 F.3d 1133, 1135 (9th Cir.1994) (remanding for hearing on Cuyler issue where a defendant in a drug ease was represented by an attorney paid for by an anonymous third party and the attorney suggested that the defendant not accept the plea offer from the government); but see United States v. Shaughnessy, 782 F.2d 118, 120 (8th Cir.1986) (recognizing inherent dangers of third-party-payer arrangement, but finding defendant failed to prove that those dangers ripened into an actual conflict of interest).

"Prejudice is presumed only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.'"

See Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (“Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’”); Dawan, 31 F.3d at 721-22. Assuming without deciding that petitioner’s trial team acted under an actual conflict of interest by accepting payment from petitioner’s father, I must decide Whether there is any evidence in the record establishing that this conflict actually affected the adequacy of their representation.


remanding for hearing on Cuyler issue where a defendant in a drug ease was represented by an attorney paid for by an anonymous third party and the attorney suggested that the defendant not accept the plea offer from the government


recognizing inherent dangers of third-party-payer arrangement, but finding defendant failed to prove that those dangers ripened into an actual conflict of interest


Context: Because of our determination as to admissibility of the State's evidential proffers under Rule 404(b), we need not discuss in detail the State's alternative argument that all of the evidence is admissible under the res gestae exception. Evidence admissible as res gestae is "part and parcel" of the crime charged.

See also Long, supra, 173 N.J. at 153-58, 801 A.2d 221 (statement by victim to mother of conversation with defendant held admissible in murder case under Rule 803(c)(3) as res gestae because the statements were “part of the ‘mosaic’ of the criminal event”).

threats against victim's spouse and theft of victim's car held not Rule 404(b

State v. Martini, 131 N.J. 176, 239-40, 619 A.2d 1208 (1993), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed.2d 137 (1995) (threats against victim’s spouse and theft of victim’s car held not Rule 404(b) evidence but “part and parcel” of a kidnapping); State v. L.P., 338 N.J.Super. 227, 239, 768 A.2d 795 (App.Div.), certif. denied, 170 N.J. 205, 785 A.2d 434 (2001) (prior sexual assaults of child victim formed a continuous course of conduct with overriding objective that tied together disparate conduct).


threats against victim's spouse and theft of victim's car held not Rule 404(b) evidence but "part and parcel" of a kidnapping


prior sexual assaults of child victim formed a continuous course of conduct with overriding objective that tied together disparate conduct


Context: The evidence established that plaintiff contributed to Medicare, resulting in the court's conclusion that such payments are from a collateral source under Pennsylvania law.

But see Steckler v. United States, 549 F.2d 1372 (10th Cir.1977) (burden on claimant to trace contributions to the Social Security fund in order to determine the percentage contributed to the fund by the government and ultimately the amount of Social Security payments that could be considered nondeductible).

Social Security Survivor benefits paid a widow and children not deducted from widow's damage award from government under FTCA

Id. at 174. See also Smith v. United States, 587 F.2d 1013 (3d Cir.1978) (Social Security Survivor benefits paid a widow and children not deducted from widow’s damage award from government under FTCA); United States v. Price, 288 F.2d 448 (4th Cir.1961) (Civil Service Retirement benefits not deductible); and United States v. Brooks, 176 F.2d 482 (4th Cir.1949) (National Service Life Insurance Policy benefits not deductible from FTCA damage award).


National Service Life Insurance Policy benefits not deductible from FTCA damage award


Context: Here, Agent Knoll did appear at trial. And as discussed above, the record supports a finding that Agent Knoll's testimony about Mr. Valenzuela-Carrillo's immigration status derived from his own observations -- not those of any out-of-court declarant. Because Ms. Gutierrez's counsel had a full opportunity to cross-examine Agent Knoll about these observations, no Confrontation Clause violation occurred.

"The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it."

See id. at 60 n. 9, 124 S.Ct. 1354 (“The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.”); see also United States v. Turner, 709 F.3d 1187, 1191 (7th Cir.2013) (“Block’s testimony on these points, which were within his personal knowledge, posed no Confrontation Clause problem.”).

"Block's testimony on these points, which were within his personal knowledge, posed no Confrontation Clause problem."


Context: In short, this Magistrate Judge sees no reason to revisit the holdings in Wyss and Iacampo regarding RICRA when those holdings are based on an interpretation of state law which appears consistent with general view of the statute as expressed by the state supreme court.

finding that defendant "may be individually liable for conduct constituting a violation under RI-CRA"

See Allen v. Attorney Gen. of Maine, 80 F.3d 569, 575 n. 6 (1st Cir.1996) (noting “the general proposition that federal courts must defer to a state supreme court’s interpretation of a statute of the state”); see also Evans v. Rhode Island Dep’t of Bus. Regulation, No. Civ.A. 01-1122, 2004 WL 2075132, at *2 (R.I.Super. Aug. 21, 2004) (finding that defendant “may be individually liable for conduct constituting a violation under RI-CRA”).

noting "the general proposition that federal courts must defer to a state supreme court's interpretation of a statute of the state"


Context: We reject this argument as unpersuasive for reasons similar to those given by the Magistrate Judge and District Court. We have held, and both the Magistrate Judge and District Court assumed, that a prisoner's civil rights case may be heard on the merits notwithstanding the failure to file a DC-ADM 804 grievance under certain limited circumstances.

Cf. Ray v. Kertes, 285 F.3d 287, 297-98 (3d Cir.2002) (declining to decide question whether prisoner may satisfy exhaustion requirement in course of proceedings charging prisoner with misconduct under DC-ADM 801).

See Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (exhaustion requirement met where Office of Professional Responsibility fully examined merits of excessive force claim and correctional officers may have impeded filing of grievance). See also Brown v. Croak, 312 F.3d 109, 110 (3d Cir.2002) (assuming that prisoner with failure to protect claim is entitled to rely on instruction by prison officials to wait for outcome of internal security investigation before filing grievance).


Context: The court recognizes that class certification serves the interests of judicial economy and provides, in some eases, the most effective means for potential plaintiffs to adjudi cate their claims. These arguments, however, are more appropriately considered in evaluating the superiority requirement of RCFC 23.

"Essentially, under [the superiority] prong of the analysis, the court is obliged to conduct a cosi/benefit analysis, weighing any potential problems with the manageability or fairness of a class action against the benefits to the system and the individual members likely to be derived from maintaining such an action."

Barnes, 68 Fed.Cl. at 499 (“Essentially, under [the superiority] prong of the analysis, the court is obliged to conduct a cosi/benefit analysis, weighing any potential problems with the manageability or fairness of a class action against the benefits to the system and the individual members likely to be derived from maintaining such an action.”); see also Curry v. United States, 81 Fed.Cl. 328, 337 (2008) (adopting Quinault’s [453 F.2d at 1276] determination that the “claims of many allottees are so small that it is doubtful that they would be pursued other than through this case,” as part of the superiority analysis); Fisher v. United States, 69 Fed.Cl. 193, 205 (2006) (considering the relative size of potential individual claims under the superiority requirement).

adopting Quinault's [453 F.2d at 1276] determination that the "claims of many allottees are so small that it is doubtful that they would be pursued other than through this case," as part of the superiority analysis


considering the relative size of potential individual claims under the superiority requirement


Context: The judgment protected by the injunction is the judgment in Canady I, which was properly issued in federal court, as it is undisputed that appellants properly filed their original class action complaint in federal court. As long as the original lawsuit was properly brought in federal court, the federal court retains subject matter jurisdiction to remove any subsequent state law action to federal court for purposes of applying the All Writs Act.

See Xiong v. Minnesota, 195 F.3d 424, 426-27 (8th Cir.1999) (Xiong) (holding that removal to federal court was proper for claims asserted under All Writs Act); see also NAACP v. Metropolitan Council, 144 F.3d 1168, 1171 (8th Cir.1998) (NAACP II) (concluding that federal court properly exercised removal jurisdiction over state law claims pursuant to the All Writs Act).


Context: Some courts are reluctant to deny debtors the opportunity to claim exemptions unless there is a clear showing of bad faith, while others have denied improperly claimed exemptions in their entirety.

"reluctantly" allowing debtor's original claim of exemptions although bankruptcy schedules were filed eight months after commencement of case, and concluding that "absent a clear showing of bad faith or prejudice, we have no discretion to deny [the debtor] his right to said exemptions"

See In re Slentz, 157 B.R. 418, 421 (Bankr.N.D.Ind.1993) (denying improper and excessive exemption in its entirety); In re Gaudet, 109 B.R. 548, 550 (Bankr.D.R.1.1989) (“reluctantly” allowing debtor’s original claim of exemptions although bankruptcy schedules were filed eight months after commencement of case, and concluding that “absent a clear showing of bad faith or prejudice, we have no discretion to deny [the debtor] his right to said exemptions”); see also In re Schwarb, 150 B.R. 470, 472 (Bankr.M.D.Fla.1992) (holding that under Code § 522, the debtor’s exemption may be denied where there is a finding of fraudulent bankruptcy planning).

holding that under Code SS 522, the debtor's exemption may be denied where there is a finding of fraudulent bankruptcy planning


Context: WCSPA thus has at most two years to challenge the denial of its motion to intervene before its challenge becomes moot. Both the Supreme Court and this court have held that two years is too short in duration for a case to be fully litigated.

S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 514-16, 31 S.Ct. 279, 55 L.Ed. 310 (1911) (order that expires by its terms after two years evades review); Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851, 855 (9th Cir.1999) (a permit that expired in two years is too short for judicial review); see also Greenpeace Action v. Franklin, 14 F.3d 1324, 1329-30 (9th Cir.1992) (fishing quota specifications that expire in one year evade review).


a permit that expired in two years is too short for judicial review


Context: As to the requests for promotion, the commission relied in part on the recognition in some federal cases that a discriminatory failure to promote represents an actionable continuing violation.

"Failure to promote is viewed as ongoing, while failure to hire is viewed as an [isolated] act"

See, e.g., Trevino v. Celanese Corp., 701 F.2d 397, 402 (5th Cir.1983); Rich v. Martin Marietta Corp., 522 F.2d 333, 348 (10th Cir.1975) (failure to promote, unlike hiring or discharge or other events often found as not constituting continuing discrimination, does not take place on a particular day, “it invariably arises during a lengthy period of time.”); see also Annear, 419 N.W.2d at 379 (“Failure to promote is viewed as ongoing, while failure to hire is viewed as an [isolated] act”).

failure to promote, unlike hiring or discharge or other events often found as not constituting continuing discrimination, does not take place on a particular day, "it invariably arises during a lengthy period of time."


Context: We have interpreted Supreme Court case law as establishing that the Remmer presumption is, in fact, vital, though its use should not be automatic regardless of the level of prejudicial impact that is likely to flow from a given intrusion. What is more, we have implied, though not stated directly, that the Remmer presumption is clearly established federal law under AEDPA, meaning state courts must apply the Remmer presumption to avoid running afoul of the federal Constitution.

stating in a post-AEDPA habeas case reviewing a state court conviction, "The post-conviction court's finding that there was no prejudice was especially unreasonable due to the fact that a presumption of prejudice applies in situations where ex parte communications were made to the jury by a third party"

See Moore v. Knight, 368 F.3d 936, 942-43 (7th Cir.2004) (stating in a post-AEDPA habeas case reviewing a state court conviction, “The post-conviction court’s finding that there was no prejudice was especially unreasonable due to the fact that a presumption of prejudice applies in situations where ex parte communications were made to the jury by a third party”); see also Wisehart, 408 F.3d at 326-28 (noting in a post-AEDPA habeas case that the State must carry the burden of showing harmlessness in a Remmer hearing); Whitehead v. Cowan, 263 F.3d 708 (7th Cir.2001) (holding in a post-AEDPA habeas case that the Remmer presumption did not apply due to the innocuous nature of an intrusion upon a jury, implying that the Remmer presumption could apply in the habeas context).


holding in a post-AEDPA habeas case that the Remmer presumption did not apply due to the innocuous nature of an intrusion upon a jury, implying that the Remmer presumption could apply in the habeas context


Context: But more importantly, Insty*Bit predates the Supreme Court's opinion in TrafFix. The appellate decisions since TrafFix that discuss functionality in the context of trade dress claims analogous to those asserted by Honeywell here consistently show that a mere combination of functional components with nondescript or common colors, shapes, and configurations does not meet the requisite standards. While the Groeneveld and Eppendorf opinions specifically discuss evidence of the functions served by the design elements at issue, they are decisions overturning jury determinations of nonfunctionality, i.e. they were rendered after jury trials in' which both sides presented evidence.

observing the absence of "any evidence that these functional aspects of the trade dress were adorned with arbitrary, ornamental embellishments" in affirming summary judgment for failure to establish non-functionality

See Cel-otex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (confirming that ‘ summary judgment is proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial” even in the absence of an affirmative showing of evidence from the nonmoving party negating the element); see also Secalt, 668 F.3d at 686 (observing the absence of "any evidence that these functional aspects of the trade dress were adorned with arbitrary, ornamental embellishments” in affirming summary judgment for failure to establish non-functionality).

confirming that ' summary judgment is proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial" even in the absence of an affirmative showing of evidence from the nonmoving party negating the element


Context: . At oral argument on the summary judgment motion, Medeiros intimated that Amendment 3 and Regulation 15.18 infringe upon his fundamental right to pursue the livelihood or occupation of his choosing: in this case, lob-stering. Both for equal protection and substantive due process purposes, however, see infra Section II.B, it is well settled that no such fundamental right exists, and that legislation or regulation impinging upon such a right therefore is subject only to "rational basis" review, rather than "strict scrutiny."

"[Fjishing is not a fundamental right nor is the class of commercial fishermen a suspect class."

See, e.g., Dittman v. California, 191 F.3d 1020, 1031 n. 5 (9th Cir.1999); N.Y. State Trawlers Ass'n v. Jorling, 16 F.3d 1303, 1311 (2d Cir. 1994); Whittle v. United States, 7 F.3d 1259, 1262 (6th Cir.1993); Sisk v. Tex. Parks and Wildlife Dep’t, 644 F.2d 1056, 1058 n. 5 (5th Cir.1981) ("[Fjishing is not a fundamental right nor is the class of commercial fishermen a suspect class.”); Cherenzia v. Lynch, 847 A.2d 818, 823-24 (R.I.2004); cf. Piper v. Supreme Court of N.H., 723 F.2d 110, 112 (1st Cir. 1983), aff'd, 470 U.S. 274, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985) (noting .that right to make a living may be "fundamental” under the Privileges and Immunities Clause).

noting .that right to make a living may be "fundamental" under the Privileges and Immunities Clause


Context: The failure of the district court to adequately cite its reasons for a sentence on the record is ordinarily reversible error.

noting failure to provide adequate "statement of reasons for the sentence imposed is reversible error requiring resentencing"

See, e.g., Lumadue, 622 N.W.2d at 304-05 (remanding for resentencing when trial court used boilerplate language in sentencing order which did not adequately state reasons related to “this” defendant and “this” offense); Uthe, 542 N.W.2d at 816 (requiring resentencing when court failed to adequately explain its imposition of consecutive sentences); Cooper, 403 N.W.2d at 802 (vacating sentence and remanding for resentencing after finding sentencing record inadequate); see also Commonwealth v. Johnson, 373 Pa.Super. 312, 541 A.2d 332, 340 (Ct.1988) (noting failure to provide adequate “statement of reasons for the sentence imposed is reversible error requiring resentencing”).

remanding for resentencing when trial court used boilerplate language in sentencing order which did not adequately state reasons related to "this" defendant and "this" offense


requiring resentencing when court failed to adequately explain its imposition of consecutive sentences


vacating sentence and remanding for resentencing after finding sentencing record inadequate


Context: However, a trial court is not required to give the jury an instruction defining an affirmative defense if proof of the elements of the charged offense necessarily requires disproof of the issue raised by the affirmative defense.

proof of victim's nonconsent is implicit within the elements of first degree sexual assault by force or violence

See People v. Fink, 194 Colo. 516, 574 P.2d 81 (1978) (refusal of instruction that self-defense was an affirmative defense to criminally negligent homicide and reckless manslaughter was proper because jury could not find defendant guilty of either offense without necessarily finding that he acted unreasonably (a finding inconsistent with a theory of self-defense)); People v. Cruz, 923 P.2d 311 (Colo.App.1996)(separate instruction on affirmative defense of consent was unnecessary because proof that defendant caused victim to submit to sexual assault by application of physical force or violence necessarily required prosecution to prove lack of consent); see also Dunton v. People, 898 P.2d 571 (Colo.1995) (proof of victim’s nonconsent is implicit within the elements of first degree sexual assault by force or violence).


separate instruction on affirmative defense of consent was unnecessary because proof that defendant caused victim to submit to sexual assault by application of physical force or violence necessarily required prosecution to prove lack of consent


Context: . For the first time on appeal, the parties raise the competency and reliability of certain declarations submitted in the district court. Because neither party raised these evidentiary objections in the district court, we deem them waived.

See United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.1990) (explaining that to preserve an evidentiary issue for appeal, a party must make a timely and specific objection to evidentiary issues before the trial court); see also Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066-67 (9th Cir.1996) (holding that a party waives an objection by failing to request a ruling on the admissibility of the evidence before the district court).


Context: 117However, Judge Amy, who would have affirmed defendant's conviction and sentence for second degree cruelty to juveniles, dissented on this point as well in light of "the child's age as well as the serious and repetitive nature of the abuse."

"A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation."

See Ewing v. California, 538 U.S. 11, 25, 123 S.Ct. 1179, 1187, 155 L.Ed.2d 108 (2003) (“A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation.”) (citations omitted); cf. Graham v. Florida, 560 U.S. -, -, 130 S.Ct. 2011, 2028, 176 L.Ed.2d 825 (2009) (“A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.”)

"A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense."


Context: The Rule of Two also does not require the contracting officer to find that any two specific small businesses are responsible; the contracting officer only must "reasonably expect" that two responsible small businesses will submit offers.

"[T]he actual merits of the individual bids are not dispositive on the issue of the reasonableness of the contracting officer's expectations."

See Adams & Assocs. II, 741 F.3d at 111 (“a set-aside determination requires only that the contracting officer have a reasonable expectation that likely small business offerors will survive a future responsibility determination”); see also McKing Consulting Corp. v. United States, 78 Fed.Cl. 715, 726 (2007) (“[T]he actual merits of the individual bids are not dispositive on the issue of the reasonableness of the contracting officer’s expectations.”); Greenleaf Constr. Co. v. United States, 67 Fed.Cl. 350, 361 (2005) (“The logic behind the Rule [of Two] is obvious—it may not be possible for a [contracting officer] to gauge bidder responsibility and price fairness before a solicitation is even issued.”).

"a set-aside determination requires only that the contracting officer have a reasonable expectation that likely small business offerors will survive a future responsibility determination"


"The logic behind the Rule [of Two] is obvious--it may not be possible for a [contracting officer] to gauge bidder responsibility and price fairness before a solicitation is even issued."


Context: Moreover, the 40-month sentence imposed was well below the 120-month statutory maximum, which is another factor demonstrating its reasonableness.

considering that a sentence was "appreciably below the length of the statutory maximum" in assessing its reasonableness

See Valnor, 451 F.3d at 751-52 (considering that a sentence was “appreciably below the length of the statutory maximum” in assessing its reasonableness); see also Gall, 552 U.S. at 51, 128 S.Ct. at 597 (noting that the substantive reasonableness of a sentence is determined in light of the' totality of the circumstances).


Context: With regard to the Section 1983 Fourteenth Amendment claim against Garcia, the Court notes that Plaintiff does not address a Fourteenth Amendment gender discrimination claim against Garcia in his opposition papers. To the extent the Plaintiff continues to seek to pursue this claim,-the Court finds that there are no facts alleged or evidence put forth that supports a claim of gender discrimination by Garcia. In any event, the Second Circuit has explained, albeit in the racial discrimination context, that no such cause of action exists.

Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir.1996) (“[ajlthough claims of retaliation are commonly brought under the First Amendment ... and may also be brought under Title VII ... we know of no court that has recognized a claim under the equal protection clause for retaliation following complaints of racial discrimination.”); see also Ratliff v. DeKalb County, 62 F.3d 338, 340-41 (11th Cir.1995) (finding no established right under the equal protection clause to be free from retaliation for complaints of gender discrimination); Gray v. Lacke, 885 F.2d 399, 414 (7th Cir.1989) (“[Rjight to be free from retaliation for protesting sexual harassment and sex discrimination is a right created by Title VII, not the equal protection clause.”); Lange v. Town of Monroe, 213 F.Supp.2d 411, 419 (S.D.N.Y.2002) (“defendants’ alleged retaliation in response to plaintiffs sexual harassment complaints is not cognizable as an equal protection violation.”).

"[ajlthough claims of retaliation are commonly brought under the First Amendment ... and may also be brought under Title VII ... we know of no court that has recognized a claim under the equal protection clause for retaliation following complaints of racial discrimination."


"[Rjight to be free from retaliation for protesting sexual harassment and sex discrimination is a right created by Title VII, not the equal protection clause."


"defendants' alleged retaliation in response to plaintiffs sexual harassment complaints is not cognizable as an equal protection violation."


Context: Of course, the nondelegation doctrine still holds firm in instances where the power delegated was not lawfully delegable.

See also Smith v. State, 537 So.2d 982 (Fla.1989) (legislature improperly delegated authority to supreme court to promulgate sentencing guidelines).

Chiles v. Children A, B, C, D, E, & F, 589 So.2d 260 (Fla.1991) (legislature improperly delegated appropriations function, which could only constitutionally be exercised by legislative branch); Barry v. Garcia, 573 So.2d 932 (Fla. 3d DCA) (city commission had no authority to grant subpoena power to independent investigatory body), review denied, 583 So.2d 1034 (Fla.1991).


city commission had no authority to grant subpoena power to independent investigatory body


Context: We have also previously explained that "maintenance work is not the kind of regulatory activity" to which the Supreme Court envisioned the discretionary function exception applying.

rejecting government's characterization of its failure to maintain a segment of a road in a national park as a policy-grounded decision

ARA Leisure Servs., 831 F.2d at 195 (rejecting government’s characterization of its failure to maintain a segment of a road in a national park as a policy-grounded decision); see also id. (noting an absence of any “clear link between Park Service road policies and the condition of Thoroughfare Pass”); O’Toole, 295 F.3d at 1036 (holding that Bureau of Indian Affairs’ failure to repair an irrigation system “involve[d] a mundane question of routine ditch maintenance” and was “not the sort of public policy issue that the discretionary function exception is designed to protect”). “The danger that the discretionary function exception will swallow the FTCA is especially great where the government takes on the role of a private landowner,” O’Toole, 295 F.3d at 1037, and we are mindful of our duty “to effectuate Congress’s intent to compensate individuals harmed by government negligence[ by liberally construing] the FTCA, as a remedial statute” and by reading “its exceptions ... narrowly,” id.

holding that Bureau of Indian Affairs' failure to repair an irrigation system "involve[d] a mundane question of routine ditch maintenance" and was "not the sort of public policy issue that the discretionary function exception is designed to protect"


Context: A cause of action for fraud accrues on the date the plaintiff actually discovered the fraud or could have discovered it with reasonable diligence.

in tort causes of action "accrual occurs when the claim becomes enforceable, i.e., when all elements can be truthfully alleged in a complaint."

See German v. Pope John Paul II, 211 A.D.2d 456, 621 N.Y.S.2d 311, 312 (st Dep’t 1995) (“The statute of limitations began to run when Plaintiff first became aware of the ... alleged improprieties giving rise to the cause of action for fraud, breach of contract [and] unjust enrichment.”); see also Kronos, 595 N.Y.S.2d 931, 612 N.E.2d at 292 (in tort causes of action “accrual occurs when the claim becomes enforceable, i.e., when all elements can be truthfully alleged in a complaint.”). The'New York legislature codified the accrual rule in § 203(g):

"The statute of limitations began to run when Plaintiff first became aware of the ... alleged improprieties giving rise to the cause of action for fraud, breach of contract [and] unjust enrichment."


Context: Several other state courts have also held that unvested stock options acquired during the marriage constitute marital property.

But see In re Marriage of Moody, 119 Ill.App.3d 1043, 75 Ill.Dec. 581, 457 N.E.2d 1023, 1027 (1983) (holding that unexercised stock options were not marital property); Hall v. Hall, 88 N.C.App. 297, 363 S.E.2d 189, 196 (1987) (holding that stock options not exercisable as of the date of separation and which may be lost as a result of events occurring in the future are never marital property).

See Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510, 513 (1983) (holding that unexercised stock options obtained during the marriage are marital property just like traded options or traded common stock); In re Marriage of Hug, 154 Cal.App.3d 780, 201 Cal.Rptr. 676, 685 (1984) (holding that the trial court did not abuse its discretion in allocating the husband’s unvested stock options as marital property); Salstrom v. Salstrom, 404 N.W.2d 848, 850 (Minn.Ct.App.1987) (holding that the trial court properly determined that unvested stock options have marital aspect); Pascale v. Pascale, 140 N.J. 583, 660 A.2d 485, 499 (1995) (holding that, like pension benefits, stock options are a form of deferred compensation for efforts expended during the marriage); Callahan v. Callahan, 142 N.J.Super. 325, 361 A.2d 561, 563-64 (1976) (holding that unvested stock options are a form of compensation and constituted marital property that could be distributed through use of a constructive trust).


holding that the trial court did not abuse its discretion in allocating the husband's unvested stock options as marital property


holding that the trial court properly determined that unvested stock options have marital aspect


holding that, like pension benefits, stock options are a form of deferred compensation for efforts expended during the marriage


holding that unvested stock options are a form of compensation and constituted marital property that could be distributed through use of a constructive trust


Context: While the state bears the burden of proving a valid waiver of the right to counsel prior to a custodial interrogation, the burden shifts after that right has been waived. Where, as here, a suspect makes an equivocal request for counsel prior to waiving Miranda, rights, the police are limited to questions intended to clarify the request until the suspect either clearly invokes his right to counsel or waives it.

"Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation."

See State v. Blackburn, 766 N.W.2d 177, 182-83 (S.D.2009) (“[I]n a pre-waiver situation where the accused has not yet validly waived the Miranda rights, the officers must clarify the waiver before proceeding with the interview.”); see also Rodriguez, 518 F.3d at 1080 (“Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation.”); Collins, 937 So.2d at 93 (“Because [the defendant] did not waive her Miranda rights before she asked the questions about obtaining a lawyer, the ambiguity of her questions required the interrogating officer to ask follow-up questions.”).

"[I]n a pre-waiver situation where the accused has not yet validly waived the Miranda rights, the officers must clarify the waiver before proceeding with the interview."


Context: Exempted from its scope, however, are "[ajctions or transactions specifically authorized under laws administered by or rules and regulations promulgated by any regulatory agency of this state or the United States." And because residential mortgage transactions are regulated by both state and federal law, the FBPA does not apply.

"The General Assembly intended that the Georgia FBPA have a restricted application only to the unregulated consumer marketplace and that FBPA not apply in regulated areas of activity . . ."

See Stewart v. SunTrust Mtg., 331 Ga. App. at 640 (5); Chancellor v. Gateway Lincoln-Mercury, 233 Ga. App. 38, 45 (2) (502 SE2d 799) (1998) (“The General Assembly intended that the Georgia FBPA have a restricted application only to the unregulated consumer marketplace and that FBPA not apply in regulated areas of activity . . .”); see also Zinn v. GMAC Mtg., No. 1:05 CV 01747 MHS, 2006 WL 418437, at *4 (N.D. Ga. Feb. 21, 2006) (“[T]he [Georgia] FBPA does not apply to residential mortgage transactions.”).

"[T]he [Georgia] FBPA does not apply to residential mortgage transactions."


Context: The particular plays containing such language were specifically chosen by the school and incorporated as part of the school's official curriculum. Furthermore, if a school newspaper and a project to paint and post glazed and fired tiles in a school hallway can be considered school-sponsored speech, then surely student speech that takes place inside the classroom, as part of a class assignment, can also be considered school-sponsored speech.

"We think that the Court's language that activities are 'school-sponsored' speech if they are 'designed to impart particular knowledge or skills to student participants and audiences,' means activities that affect learning, or in other words, affect pedagogical concerns."

See Fleming, 298 F.3d at 925 (“We think that the Court’s language that activities are ‘school-sponsored’ speech if they are ‘designed to impart particular knowledge or skills to student participants and audiences,’ means activities that affect learning, or in other words, affect pedagogical concerns.”) (quoting Hazelwood, 484 U.S. at 271, 108 S.Ct. 562) (citation omitted); see also Hazelwood, 484 U.S. at 271, 108 S.Ct. 562 (listing theatrical productions that are part of the school curriculum as an example of school-sponsored speech).


Context: Ultimately the qualification of an interpreter is a matter within the discretion of the trial court.

"Matters regarding the use of an interpreter are left to the discretion of the district court."

See CRE 702; U.S. v. Moya-Gomez, 860 F.2d 706, 740 (7th Cir.1988) (“Matters regarding the use of an interpreter are left to the discretion of the district court.”); cf. State v. Givens, 719 S.W.2d 25 (Mo.App.1986) (The appointment of an interpreter is within the discretion of the trial court as is the competency of witnesses to testify).


Context: That information, as a matter of law, constituted probable cause to believe that plaintiff had committed the robbery. Therefore, no action for malicious prosecution will lie.

Zanghi, 752 F.2d at 45; compare Deary, 570 F.Supp. at 196, 200 (finding probable cause and granting summary judgment on malicious prosecution claim where arresting officers identified plaintiff from bank photographs), rev’d, 746 F.2d 185, 190 (3d Cir.1984) (holding that in a § 1983 action issue of probable cause is for the jury); Miss Universe, Inc. v. Patricelli, 753 F.2d 235 (2d Cir.1985); cf. United States v. Hayes, 553 F.2d 824, 826 (2d Cir.) (finding of probable cause based on identifi cation from bank photographs), cert. denied, 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977).


Context: The majority cites cases from three of our sister circuits to support its contention that appeals to general deterrence might be appropriate at the sentencing phase of a death penalty case. Although federal cases are not relevant in light of Tennessee's unambiguous conclusion that the prosecutor's argument was improper, I note that, in this circuit, general-deterrence arguments are disfavored, especially where, as here, the argument is "calculated to inflame passion and prejudice."

holding that a prosecutor's comment that jurors "should impose the death penalty ... in order to fulfill their societal duty" was not improper because the prosecutor "d[id] not ask the jury to send a message to other potential murderers or robbers"

See, e.g., United States v. Solivan, 937 F.2d 1146, 1150-53, 1155 (6th Cir.1991) (holding that a prosecutor’s entreaty in closing argument to convict a defendant in order to “send a message and strike a blow to the drug problem” was “a single misstep so destructive to defendant’s right to a fair trial that it constitute^] reversible error.”); cf. Byrd v. Collins, 209 F.3d 486, 539 (6th Cir.2000) (holding that a prosecutor’s comment that jurors “should impose the death penalty ... in order to fulfill their societal duty” was not improper because the prosecutor “d[id] not ask the jury to send a message to other potential murderers or robbers”).

holding that a prosecutor's entreaty in closing argument to convict a defendant in order to "send a message and strike a blow to the drug problem" was "a single misstep so destructive to defendant's right to a fair trial that it constitute^] reversible error."


Context: Central to the resolution of that question is not whether Defendants and Intervenors have articulated a sufficient empirical justification for the provision's existence and application. They have no such burden.

stating that the court does not "require elaborate, empirical verification of the weightiness of the State's asserted jus tifications"

See Munro v. Socialist Workers Party, 479 U.S. 189, 194-95, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986) (noting that a state need not “make a particularized showing” to support the enforcement of reasonable restrictions on ballot access); see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (stating that the court does not “require elaborate, empirical verification of the weightiness of the State’s asserted jus tifications”).

noting that a state need not "make a particularized showing" to support the enforcement of reasonable restrictions on ballot access


Context: Finally, we think it significant that Smart World's counsel was retained on a contingency basis. In derivative standing cases, courts often view favorably the willingness of the party seeking derivative standing to absorb the costs of litigation, since such willingness not only demonstrates a belief in the merits of the claim, but also spares the bankruptcy estate from absorbing any further costs.

noting that contingent fee arrangement indicated "a limited cost factor"

See STN, 779 F.2d at 906 (noting that under contingent fee arrangement, pursuit of litigation would not “impose a net burden on the bankruptcy estate”); see also Louisiana World Exposition, 858 F.2d at 248 n. 15 (noting that contingent fee arrangement indicated “a limited cost factor”); of.

noting that under contingent fee arrangement, pursuit of litigation would not "impose a net burden on the bankruptcy estate"


Context: Averments (1), (2), and (4) are too "conclusory and lacking in specific facts" to provide a basis for opposing Smith's motion.

Bailey v. Viacom Inc., 435 Fed.Appx. 85, 91-92 (3d Cir.2011) (in the absence of other employees's names or an explanation of how other employees were terminated, plaintiffs representation that he was aware of similarly situated -employees who had been terminated was inadequate to defeat summary judgment).

"While Plaintiff testified that he was subject to sexual harassment half the time that he worked, when questioned about this estimate at his deposition, he only identified a number of discrete events or incidents of harassing conduct, thus, the Court will not credit Plaintiffs unsubstantiated estimation."

See also Dreshman v. Henry Clay Villa, 733 F.Supp.2d 597, 613 (W.D.Pa.2010) ("While Plaintiff testified that he was subject to sexual harassment half the time that he worked, when questioned about this estimate at his deposition, he only identified a number of discrete events or incidents of harassing conduct, thus, the Court will not credit Plaintiffs unsubstantiated estimation.”); Stephenson v. City of Philadelphia, 2006 WL 1804570, *11 n. 2 (E.D.Pa. June 28, 2006) (refusing to credit plaintiff's "unsubstantiated allegations that discriminatory treatment occurred 'all the time'”).


refusing to credit plaintiff's "unsubstantiated allegations that discriminatory treatment occurred 'all the time'"


Context: Judge Price also misapprehends the significance of the procedural posture of this case. He complains that the State did not ask the court of appeals to take judicial notice of the reliability of grooming testimony.

See also Rhodes v. State, 240 S.W.3d 882, 886 ns. 8, 9 (Tex.Crim.App.2007) (State appellee may raise for the first time in a petition for discretionary review an estoppel argument that was not raised on original submission in the court of appeals or addressed by that court).

Id. at 675. But as the prevailing party at trial, the State "was not required to raise any allegations before the court of appeals.” Volosen v. State, 227 S.W.3d 77, 79, 80 (Tex.Crim.App.2007) (State appellee may raise for the first time in a petition for discretionary review the argument that a statutory defense was inapplicable to the county in which the conduct occurred).


Context: This key fit the lock to the front door of the apartment. That Garcia had the sole key to the apartment among the eight men present supported an inference that he had allowed the other men into the apartment to conduct drug activity, thus supporting a finding of ability and intention to exercise control over the drugs.

where drugs were hidden in apartment, defendant's brief entry into apartment and possession of keys to premises did not establish defendant's knowledge of drugs hidden in apartment

Contrast Commonwealth v. Sespedes, 442 Mass. 95, 101 (2004) (where drugs were hidden in apartment, defendant’s brief entry into apartment and possession of keys to premises did not establish defendant’s knowledge of drugs hidden in apartment). Further, Garcia’s conduct in attempting to hide the key permitted an inference of consciousness of guilt, providing further support for constructive possession.

sufficient evidence to support constructive possession of drugs found in automobile, located near defendant's dwelling, because defendant had the key to the vehicle, attempted to secrete the key during booking, was seen using the vehicle, and was engaged in other illicit drug activity

See Com monwealth v. Dion, 31 Mass. App. Ct. 168, 175-176 (1991) (sufficient evidence to support constructive possession of drugs found in automobile, located near defendant’s dwelling, because defendant had the key to the vehicle, attempted to secrete the key during booking, was seen using the vehicle, and was engaged in other illicit drug activity).


Context: The discretion courts have in determining the factual issue of children's best interests, however, is not unfettered.

See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976) (non-exhaustively listing factors courts consider in determining whether termination of parental rights is in children's best interests); see also In re Jane-Doe 2, 19 S.W.3d 278, 282 (Tex.2000) (applying non-exhaustive list of Holley factors "for determining a minor's best interests” to factual determination of best interest of minor in parental notification case).

applying non-exhaustive list of Holley factors "for determining a minor's best interests" to factual determination of best interest of minor in parental notification case


Context: Generally speaking, under our precedents, establishing an R.S. 2477 right-of-way. requires showing, inter alia, that it had been " 'accepted' by the public" before the repeal of R.S. 2477. Determining the existence and scope of an R.S. 2477 route is an evidence-intensive inquiry.

describing preliminary BLM determination of an R.S. 2477 route as involving "review! ] [of] a variety of documents, including U.S. and county public land records and surveys, maps and aerial photography, wilderness inventory records, and BLM planning, grazing and maintenance records" as well as "field investigations of each disputed route"

See id. at 772-76 (surveying Utah and other states’ cases making use of extensive historical evidence to establish the extent and nature of use over the. required period); see also San Juan Cty., 754 F.3d at 791 (describing broadly the evidence presented over the course of a “nine-day bench trial” involving the determination of the existence of an R.S. 2477 route); cf. SUWA v. BLM, 425 F.3d at 743 (describing preliminary BLM determination of an R.S. 2477 route as involving “review! ] [of] a variety of documents, including U.S. and county public land records and surveys, maps and aerial photography, wilderness inventory records, and BLM planning, grazing and maintenance records” as well as “field investigations of each disputed route”).

describing broadly the evidence presented over the course of a "nine-day bench trial" involving the determination of the existence of an R.S. 2477 route


Context: We decline to decide whether the proffered evidence would have been admissible to show SrA B's motive to lie. When military judges exclude evidence, we review their exercise of discretion on the basis of the record before them. Since the defense did not proffer the evidence to show motive to lie, the military judge had no duty to consider it for this purpose.

accused may not withhold "trump card" and play it on appeal if he loses at trial

See also United States v. Clark, 35 MJ 98, 107 (CMA 1992) (accused may not withhold “trump card” and play it on appeal if he loses at trial).

See United States v. Rust, 41 MJ 472, 479 n. 3 (1995) (appellant not allowed to relitigate motion on different factual basis for the first time on appeal); United States v. Vangelisti, 30 MJ 234, 237 (CMA 1990), quoting United States v. Roberts, 7 USCMA 322, 325, 22 CMR 112, 115 (1956) (“Ordinarily, appellate courts review claimed errors only on the basis of the error as presented to the lower courts.”).


"Ordinarily, appellate courts review claimed errors only on the basis of the error as presented to the lower courts."


Context: The resolution is also invalid and ineffective as applied to the private water companies (Parkland Light). A local regulation that conflicts with state law fails in its entirety.

See Adams v. Thurston County, 70 Wn. App. 471, 482, 855 P.2d 284 (1993) (holding that a county ordinance conflicted with state laws and was invalid as applied to all citizens); see also Employco Pers. Servs., Inc. v. City of Seattle, 117 Wn.2d 606, 618, 817 P.2d 1373 (1991) (holding that an entire ordinance which gave the city of Seattle blanket immunity from liability for damages for loss of electrical services was void because it conflicted with state statutes authorizing suits against utilities and permitting recovery of damages for negligently caused losses).


Context: The re-dressability of an injury to a procedural right turns on the potential impact of the court's action on the injury-causing party. Circuit precedent establishes that there is standing to assert procedural allegations under NEPA against state defendants in order to preserve the environmental status quo pending federal review.

See Ely v. Velde (“Ely II”), 497 F.2d 252, 257 (4th Cir.1974) (finding that if a state were to undertake construction on a project subject to NEPA requirements absent procedural compliance with the Act, the federal court should enjoin such action); see also Sierra Club v. Hodel, 544 F.2d 1036, 1037 (9th Cir.1976) (analyzing a NEPA claim that an actor failed to prepare a required EIS as presenting a federal question for the purposes of subject matter jurisdiction).


Context: At most, plaintiff has demonstrated that some of the witnesses had varying points of view concerning the incident. This does not, however, demonstrate perjury.

holding that fact that one witness's testimony is at odds with testimony of another witness does not supply a sufficient basis for allegations of perjury

State v. Barker, 18 Kan.App.2d 292, 294, 851 P.2d 394, 396 (1993) (perjury cannot be established by one person’s testimony countering another person’s testimony); see also Dukes v. State of New York, 743 F.Supp. 1037, 1042 (S.D.N.Y.1990) (holding that fact that one witness’s testimony is at odds with testimony of another witness does not supply a sufficient basis for allegations of perjury). Likewise, plaintiff advances no facts to support her claim of conspiracy. That is, she provides no evidence that Alton, Li-vengood, and Mr. Serrano met, determined to conspire against plaintiff, and carried out the conspiracy through a course of conduct.

perjury cannot be established by one person's testimony countering another person's testimony


Context: Even in prison, case law indicates that the Fourth Amendment protects, to some degree, prisoners' bodily integrity against unreasonable intrusions into their bodies.

insertion of catheter into prisoner's bladder was subject to Fourth Amendment, but defendant physician was entitled to qualified immunity

See Sparks, 71 F.3d at 260-61 (insertion of catheter into prisoner’s bladder was subject to Fourth Amendment, but defendant physician was entitled to qualified immunity); Peckham v. Wisconsin Dep’t of Corrections, 141 F.3d 694, 699 (7th Cir.1998) (Easterbrook, J., concurring in judgment) (Fourth Amendment protects prisoners from unreasonable bodily intrusions but not inspections of appearance of their bodies); see also Sanchez v. Pereira-Castillo, 590 F.3d 31, 44-48 (1st Cir.2009) (vacating dismissal of prisoner’s Fourth Amendment claim based on abdominal surgery used to search for evidence).

vacating dismissal of prisoner's Fourth Amendment claim based on abdominal surgery used to search for evidence


Context: The novelty of this attempt does not give us pause, however. Given the general similarity between the role of the Commission and the role of the SEC in remedying wrongs within their respective spheres, it is entirely appropriate to allow the Commission to proceed against nominal defendants under the same circumstances in which the SEC could proceed against such defendants.

noting that although the CEA does not contain the same explicit grant of broad equitable authority found in the SEA, "neither does [the CEA] have any provision restricting the equitable power of the district court"

See Colello, 139 F.3d at 676 (stating generally that "ample authority supports the proposition that the broad equitable powers of the federal courts can be employed to recover ill gotten gains for the benefit of the victims of wrongdoing, whether held by the original wrongdoer or by one who has received the proceeds after the wrong”); cf. CFTC v. Hunt, 591 F.2d 1211, 1223 (7th Cir. 1979) (noting that although the CEA does not contain the same explicit grant of broad equitable authority found in the SEA, "neither does [the CEA] have any provision restricting the equitable power of the district court”).

stating generally that "ample authority supports the proposition that the broad equitable powers of the federal courts can be employed to recover ill gotten gains for the benefit of the victims of wrongdoing, whether held by the original wrongdoer or by one who has received the proceeds after the wrong"


Context: Although Franklin testified that "the idea that [Cortez's attorneys] had some big strategy before the [polygraph] question was asked is not true," Cortez's attorneys also testified that they were surprised by the question regarding polygraph testimony and did not expect the question to be asked. In this vein, the Supreme Court has stated "[j]ust as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities." Accordingly, even if we were to address this claim as a standalone issue, Cortez has failed to show that his counsel was deficient for failing to file a motion in limine regarding inadmissible polygraph evidence.

holding that pre-trial motions in limine "were not feasible because counsel could not have anticipated [inadmissible] testimony"

See Charles v. Thaler, 629 F.3d 494, 502 (5th Cir. 2011) (holding that pre-trial motions in limine “were not feasible because counsel could not have anticipated [inadmissible] testimony”); see also Dodson v. Stephens, 611 Fed.Appx. 168, 175-77 (5th Cir. 2015) (holding that it was "reasonable that [counsel] would not anticipate that the prosecution would attempt to offer inadmissible [polygraph] evidence”).

holding that it was "reasonable that [counsel] would not anticipate that the prosecution would attempt to offer inadmissible [polygraph] evidence"


Context: I have no doubt the work of the Commission is in aid of that function. Other, arguably less "judicial," functions have been assigned to courts of law and have withstood constitutional challenge.

ruling that Congress' power to exercise exclusive legislation over District of Columbia permitted it to assign district courts the responsibility to oversee Public Utilities Commission

See Rice v. Ames, 180 U.S. 371, 21 S.Ct. 406, 45 L.Ed. 577 (1901) (upholding court appointment of commissioners to handle extradition matters); Ex parte Siebold, 100 U.S. 371, 397-98, 25 L.Ed. 717 (1879) (upholding statute which permitted circuit courts to appoint election supervisors); see also Morrison v. Olson, 108 S.Ct. at 2613, 2614 n. 20 (detailing other non-adversarial functions courts may exercise); Keller v. Potomac Elec. Power Co., 261 U.S. 428, 442-43, 43 S.Ct. 445, 448-49, 67 L.Ed. 731 (1923) (ruling that Congress’ power to exercise exclusive legislation over District of Columbia permitted it to assign district courts the responsibility to oversee Public Utilities Commission). . The test is whether an assignment of authority to the judicial branch presents an “incongruity in the duty required as to excuse the courts from its performance, or to render their acts void.”


holding that special court's appointment of independent prosecutor not incongruous

Siebold, 100 U.S. at 398; see also Morrison v. Olson, 108 S.Ct. at 2610 (holding that special court’s appointment of independent prosecutor not incongruous); Hobson v. Hansen, 265 F.Supp. 902, 914 (D.D.C.1967) (“The limitation which is referred to in Siebold is not an affirmative requirement that the duty ... be related to the administration of justice. It is a negative requirement that the duty may not have ‘such incongruity’ with the judicial function as would void the power sought to be conferred.”) (upholding power of district court to appoint members of D.C. school board).


Context: ."'Garcia argues that even if trial counsel's individual acts or omissions are insufficient ' to establish he was prejudiced, the cumulative effect was substantial enough- to meet Strickland's test.

"In making this showing, a'petitioner may demonstrate that-the cumulative effect of counsel's individual acts or omissions was substantial enough to meet Strickland's test"

See Williams v. Washington, 59 F.3d 673, 682 (7th Cir.1995) (“In making this showing, a'petitioner may demonstrate that-the cumulative effect of counsel’s individual acts or omissions was substantial enough to meet Strickland’s test”); but see Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir.1990) (“cumulative error does not call for habeas relief, as each habeas .claim must stand or fall on its own”).’

"cumulative error does not call for habeas relief, as each habeas .claim must stand or fall on its own"


Context: Plaintiffs assert that they have a due process right to not be deprived of one's already-existing legal marriage and its attendant benefits and protections.

applying intermediate scrutiny where Ohio is "intruding into fact erasing" the marriage relationship

See Obergefell v. Wymyslo, 962 F.Supp.2d 968, 978 (S.D.Ohio 2013) (finding that nonrecognition invokes “the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.”); see also Henry v. Himes, No. l:14-cv-129, - F.Supp.2d -, -, 2014 WL 1418395, *9 (S.D.Ohio Apr. 14, 2014) (applying intermediate scrutiny where Ohio is “intruding into fact erasing” the marriage relationship); see also De Leon v. Perry, 975 F.Supp.2d 632, 662 (W.D.Tex.2014) (applying rational basis review and finding “that by declaring lawful same-sex marriages void and denying married couples the rights, responsibilities, and benefits of marriage, Texas denies same-sex couples who have been married in other states their due process”).

finding that nonrecognition invokes "the right not to be deprived of one's already-existing legal marriage and its attendant benefits and protections."


applying rational basis review and finding "that by declaring lawful same-sex marriages void and denying married couples the rights, responsibilities, and benefits of marriage, Texas denies same-sex couples who have been married in other states their due process"


Context: The statement-against-penal-interest concept is closely tied to the informant's basis of knowledge, another relevant consideration in the totality-of-the-circumstances analysis.

informant's tip that the defendant was a drug dealer was based, in part, on informant's own purchase of drugs from the defendant

See, e.g., Harris, 403 U.S. at 575-76, 578-79, 91 S.Ct. 2075 (informant’s sworn tip that the defendant sold illicit whiskey at a particular address was based on informant’s purchase of illicit whiskey at that address); Grossi, 588 A.2d at 608 (informant’s tip that the defendant was involved in a drug-smuggling ring was based on informant’s own involvement in that operation); Germano, 559 A.2d at 1033, 1035 (informant’s tip that the defendant was selling cocaine out of his home was based, in part, on informant’s own purchase of cocaine from the defendant; informant also had visited the defendant’s home on numerous occasions and observed the defendant sell cocaine); Read, 416 A.2d at 686 (informant’s tip that marijuana was located at a particular address was based on informant’s purchase of marijuana at that location earlier that evening); see also Tyler, 238 F.3d at 1038-39 (informant’s tip that the defendant was a drug dealer was based, in part, on informant’s own purchase of drugs from the defendant); cf. Ricci, 472 A.2d at 293, 296-97 (informant’s tip that the defendant was in possession of stolen earrings was based on the fact that the defendant gave informant a sample of the stolen earrings, and informant confirmed with the victim of the theft that the earrings were stolen).

informant's sworn tip that the defendant sold illicit whiskey at a particular address was based on informant's purchase of illicit whiskey at that address


informant's tip that the defendant was in possession of stolen earrings was based on the fact that the defendant gave informant a sample of the stolen earrings, and informant confirmed with the victim of the theft that the earrings were stolen


informant's tip that the defendant was involved in a drug-smuggling ring was based on informant's own involvement in that operation


informant's tip that marijuana was located at a particular address was based on informant's purchase of marijuana at that location earlier that evening


Context: Under some circumstances, the contacts of a resident subsidiary may be imputed to a nonresident defendant for purposes of establishing personal jurisdiction. Such contacts will only be attributed to the nonresident corporation where the subsidiary is (1) its alter ego, (2) a mere department of it, or (3) its agent.

reciting the three tests under which a subsidiary's contacts can be imputed to the parent

See Brooks v. Bacardi Rum Corp., 943 F.Supp. 559, 562-63 (E.D.Pa.1996) (reciting the three tests under which a subsidiary’s contacts can be imputed to the parent); see also Arch, 984 F.Supp. at 837 (suggesting comprehensive approach whereby “all relevant factors” contained in the three tests are considered at once).

suggesting comprehensive approach whereby "all relevant factors" contained in the three tests are considered at once