Context: Nevertheless, the District Court sentenced Thomas to imprisonment for 292 months-52 months more than the applicable maximum. It is beyond cavil that imprisonment for an additional 52 months beyond the penalty authorized by Congress, as a direct result of the error of using a drug quantity neither charged nor found by the jury, constitutes prejudice.

holding that arithmetical error that resulted in an increase to a defendant's base offense level pursuant to the Sentencing Guidelines affected his substantial rights, even though the resulting sentence was within the range for the correct offense level

See Promise, 255 F.3d at 160 (holding that a sentence to a term of imprisonment ten years greater than the applicable maximum affected the defendant’s “substantial rights”); cf. United States v. Martinez-Rios, 143 F.3d 662, 675-76 (2d Cir.1998) (holding that arithmetical error that resulted in an increase to a defendant’s base offense level pursuant to the Sentencing Guidelines affected his substantial rights, even though the resulting sentence was within the range for the correct offense level); Gore, 154 F.3d at 47-48 (holding that the “stigma” associated with a second conviction along with an extra $50 special assessment constitutes prejudice sufficient to affect “substantial rights,” even if the second conviction does not result in any additional time in prison).

holding that a sentence to a term of imprisonment ten years greater than the applicable maximum affected the defendant's "substantial rights"


holding that the "stigma" associated with a second conviction along with an extra $50 special assessment constitutes prejudice sufficient to affect "substantial rights," even if the second conviction does not result in any additional time in prison


Context: Immediately prior to his appointment to the OFP directorship, Ortiz, concededly a "political activist," served for three years as City assemblyman, a position which would have brought all City ordinances within his constructive knowledge.

See Texaco, Inc. v. Short, 454 U.S. 516, 531 n. 25, 102 S.Ct. 781, 793 n. 25, 70 L.Ed.2d 738 (1982) (noting that all persons are charged with knowledge of the provisions of duly enacted statutes/ordinances); Deibler v. City of Rehoboth Beach, 790 F.2d 328, 331 (3d Cir.1986) (same); cf. Good v. Dauphin County Social Servs. for Children and Youth, 891 F.2d 1087, 1091 (3d Cir.1989) (reasonably competent government officials should know laws governing their conduct).


Context: . Because Gerald waived his right to complain of error in the exclusion of evidence he would have introduced despite the bankruptcy proceeding, we need not decide whether the trial court erred in determining that it could not act on the motion due to the bankruptcy.

upheld trial court's modification of child support despite the petition for bankruptcy filed by the noncustodial parent

But see Kruse v. Kruse, 464 N.E.2d 934 (Ind.Ct.App. 3 Dist.1984) (upheld trial court’s modification of child support despite the petition for bankruptcy filed by the noncustodial parent).

See e.g., In re Stringer, 847 F.2d 549 (9 Cir.1988) (an action for modification of child support order is not exempt from the automatic stay and thus was not permitted); Broussard v. Norris, 470 So.2d 399 (La.Ct.App. 3 Cir.1985) (order to increase child support remanded for determination of facts after the termination of bankruptcy proceeding).


order to increase child support remanded for determination of facts after the termination of bankruptcy proceeding


Context: Thus, the petition cannot be viewed as conferring jurisdiction on the trial court. Rather, the statutory scheme supports the conclusion that the trial court acquires jurisdiction upon the detained person's provisional acceptance by an evaluation and treatment facility.

"[T]he 72-hour period begins upon a facility's immediate provisional acceptance of a petition and person for detention."

See Swanson, 115 Wn.2d at 25 (“The parties agree that the trial court had both personal and subject matter jurisdiction in this case up until the 72-hour period expired.”); see also RCW 71.05.170; Swanson, 115 Wn.2d at 33 (“[T]he 72-hour period begins upon a facility’s immediate provisional acceptance of a petition and person for detention.”).

"The parties agree that the trial court had both personal and subject matter jurisdiction in this case up until the 72-hour period expired."


Context: We now turn to the remaining Bendectin factors. Factors one and two direct that the petitioners have no other adequate means to obtain relief and that irreparable harm will occur if the petition is denied. We have held that "class certification is clearly reviewable on direct appeal once a final disposition of the case has been reached."

In re NLO, 5 F.3d 154, 159 (6th Cir.1993)(refusing to issue writ to vacate district court order certifying class under Rule 23(b)(2) for medical monitoring claims).

See also Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)(not- withstanding that certification of large class may force defendant to settle despite meritorious defense, courts of appeals have correctly held that orders granting class certification are interlocutory)(dicta).


Context: In this case, although plaintiff maintains that by this language, the Fifth Circuit has limited Eleventh Amendment immunity to situations in which a plaintiff seeks to compel an official to affirmatively act (as opposed to refrain from acting), this court, like defendants, views the statement merely as an acknowledgment of the context in which Pennhurst was decided. Here, in contrast to Word of Faith, defendant Stringer is sued only in his official capacity, and it cannot reasonably be contended, nor is it contended, that he lacks authority under state law to take the challenged actions.

referencing Pennhurst's " 'ultra vires' exception to eleventh amendment immunity, and concluding that a state officer may be said to act ultra vires only when he acts 'without any authority whatever' "

See Pennhurst, 465 U.S. at 102, 104 S.Ct. 900 (explaining that “a state officer may be said to act ultra vires only when he acts ‘without any authority whatever’ ”) (citations omitted); see also Holloway v. Walker, 765 F.2d 517, 525 (5th Cir.1985) (referencing Pennhurst’s “ ‘ultra vires’ exception to eleventh amendment immunity, and concluding that a state officer may be said to act ultra vires only when he acts ‘without any authority whatever’ ”) (quoting Pennhurst).

explaining that "a state officer may be said to act ultra vires only when he acts 'without any authority whatever' "


Context: (Defs.' Mem. in Supp. of Defs.' Mot. 1; Pis.' Resp. to Defs.' Mot. 6.) This amount is neither apologetically large nor astonishingly small.

See Wunderlic-Malec II, 2007 WL 3086006, at *3 (stating that 11,167 pages of documents was “a relatively large number”); see Harmony Gold, 169 F.R.D. at 117 (stating that review and production of 25,000 documents was an “admittedly large number”); see also Harris Corp. v. Amperex Elec. Corp., No. 86-6338, 1987 WL 4847, at *1 (N.D.I11. May 15, 1987) (finding inadvertent disclosure where plaintiff disclosed six privileged documents when it produced 7864 total pages of documents).

stating that 11,167 pages of documents was "a relatively large number"


stating that review and production of 25,000 documents was an "admittedly large number"


Context: The Court therefore remands this matter to the Commission to reexamine its decision in light of its own precedent.

noting that agencies must provide an "explicit! ] and rational! ]" justification for departing from their precedents

See Michigan v. Thomas, 805 F.2d 176, 184 (6th Cir.1986) (noting that agencies must provide an “explicit! ] and rational! ]” justification for departing from their precedents); see also Leeco, Inc. v. Hays, 965 F.2d 1081, 1085 (D.C.Cir.1992) (“It is especially important in cases where the agency has take a sharp turn from prior holdings that its actions be supported by reasoned decision-making.”) (citation omitted).

"It is especially important in cases where the agency has take a sharp turn from prior holdings that its actions be supported by reasoned decision-making."


Context: Federal courts have not consistently found the Adam Walsh Amendments' pretrial prohibition on firearm possession unconstitutional, as the dissent suggests. See dissent at 169-70. In some cases the dissent relies on, the courts considered only the Adam Walsh Amendments' curfew, home detention, or home monitoring requirements.

expressly declining to consider the defendant's challenge to the firearm restriction

United States v. Karper, 847 F. Supp. 2d 350, 356-57 (N.D.N.Y. 2011); United States v. Smedley, 611 F. Supp. 2d 971,974 (E.D. Mo. 2009) (expressly declining to consider the defendant’s challenge to the firearm restriction); United States v. Merritt, 612 F. Supp. 2d 1074,1075-76 (D. Neb. 2009); see also United States v. Torres, 566 F. Supp. 2d 591, 596-98 (W.D. Tex. 2008) (declaring all the pretrial release restrictions facially invalid, but primarily discussing the curfew).


Context: Other jurisdictions adopting the employer-independent contractor analogy also agree that the test for the existence of a franchisor's duty of care to its franchisee's employee is the extent of the franchisor's control of the daily operation of the business.

Whether franchisor owed an independent duty to the franchisee's employee depends on "the degree of control or direction the franchisor retained."

See Coty, 58 Ill.App.3d at 242, 15 Ill.Dec. at 690, 373 N.E.2d at 1375 (The general control rationale of employer-independent contractor eases “can be applied to the franchise cases.”); see also Wise, 555 P.Supp. at 995 (“Control” is a decisive factor in employer-independent contractor cases and thus in franchisor-injured franchisee’s employee cases.); Steveco, 450 N.E.2d at 555 (Whether franchisor owed an independent duty to the franchisee’s employee depends on “the degree of control or direction the franchisor retained.”).

The general control rationale of employer-independent contractor eases "can be applied to the franchise cases."


Context: The bad faith tort is grounded on the covenant of good faith and fair dealing that is implicit in all contracts, supplemented by the idea that insurance contracts have special characteristics that warrant heightened liability for breach of that covenant.

"The heart of the [bad faith] tort ... is the fiduciary relationship between the insurer and the insured and the insurer's breach of the duty of good faith and fair dealing implicit in every contract."

See Braesch v. Union Ins. Co., 237 Neb. 44, 464 N.W.2d 769, 774-75 (1991) (noting the unique “public interest” character of the insurance industry, the fact that an insured seeks to protect against loss rather than gain commercial advantage, and the unequal bargaining power of insurers and insureds); see also Kranzush v. Badger State Mut. Casualty Co., 103 Wis.2d 56, 307 N.W.2d 256, 261 (1981) (“The heart of the [bad faith] tort ... is the fiduciary relationship between the insurer and the insured and the insurer’s breach of the duty of good faith and fair dealing implicit in every contract.”).

noting the unique "public interest" character of the insurance industry, the fact that an insured seeks to protect against loss rather than gain commercial advantage, and the unequal bargaining power of insurers and insureds


See Braesch v. Union Ins. Co., 237 Neb. 44, 464 N.W.2d 769, 774-75 (1991) (noting the unique “public interest” character of the insurance industry, the fact that an insured seeks to protect against loss rather than gain commercial advantage, and the unequal bargaining power of insurers and insureds); see also Kranmsh v. Badger State Mut. Casualty Co., 103 Wis.2d 56, 307 N.W.2d 256, 261 (1981) (“The heart of the [bad faith] tort ... is the fiduciary relationship between the insurer and the insured and the insurer’s breach of the duty of good faith and fair dealing implicit in every contract.”).


Context: But Shipp's proffered growth rates stemmed from AHC's prior increases in sales in these two markets, and Shipp detailed the differences between the growth rates for the two markets and the method he had used to accommodate them. Shipp's growth rates accorded with AHC's trending sales and the overall hat market.

stating that "in calculating the loss in profits, the normal increase in the business which might have been expected in the light of past developments and existing conditions may be considered"

See White v. Sw. Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983) (stating that “in calculating the loss in profits, the normal increase in the business which might have been expected in the light of past developments and existing conditions may be considered”); Sw. Battery Corp., 181 Tex. at 427, 115 S.W.2d at 1099 (same); see also Fleming Mfg. Co. v. Capitol Brick, Inc., 734 S.W.2d 405, 407-08 (Tex.App.-Austin 1987, writ,ref'd n.r.e.) (including analysis of sales projections derived from past sales in lost-profits analysis).


Context: Therefore, based on the law as outlined above, we find while silence or acquiescence may be used as a factor in determining a landowner's intent, it alone is not sufficient to establish the unequivocal and positive intent necessary for an offer to dedicate to the public use.

stating that the intention to dedicate must be shown by something more than an omission or failure to act or acquiescence on the part of the owner and that there must be evidence of additional factors that imply a donative intention when considered in light of the owner's acquiescence in the public's use of the roadway

See Bell v. Tycer, 97 So.2d 448, 450 (La.App. 1st Cir.1957) (finding silence and failure to protest does not in law amount to an assent to a dedication to public use); see also Hatton v. Grigar, 66 S.W.3d at 554 (stating that the intention to dedicate must be shown by something more than an omission or failure to act or acquiescence on the part of the owner and that there must be evidence of additional factors that imply a donative intention when considered in light of the owner’s acquiescence in the public’s use of the roadway); Carlson v. Burkhart, 271 Kan. 856, 27 P.3d 27, 32 (2001) (stating that acquiescence of the property owners to use by some members of the public does not conclusively establish its dedication for public use and mere permission on the part of the owner to the public to use the land as a way, without more, will not constitute an intention to dedicate). Rather, other significant factors, such as a recorded map or plat or maintenance by the public authorities must be present in order to establish the landowner’s intent.


stating that acquiescence of the property owners to use by some members of the public does not conclusively establish its dedication for public use and mere permission on the part of the owner to the public to use the land as a way, without more, will not constitute an intention to dedicate


Context: Under the "search-incident-to-a-lawful-arrest" exception to the warrant requirement, a law enforcement officer may conduct a full search of an arres-tee's person incident to a lawful custodial arrest.

holding that the search-incident-to-a-lawful-arrest rule does not apply to an officer's search of the defendant's vehicle where the officer, while subsequently arresting the defendant for drug-law violations based upon that search, never actually arrested the defendant for the speeding violation, which gave the officer the probable cause to arrest the defendant before the search, but, rather, only issued a citation, and reasoning that the rule's underlying twin rationales of officer safety and evidence preservation were only minimally present and not present at all, respectively, in the context of a traffic citation

Cf. Knowles v. Iowa, 525 U.S. 113, 116-19, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (holding that the search-incident-to-a-lawful-arrest rule does not apply to an officer’s search of the defendant’s vehicle where the officer, while subsequently arresting the defendant for drug-law violations based upon that search, never actually arrested the defendant for the speeding violation, which gave the officer the probable cause to arrest the defendant before the search, but, rather, only issued a citation, and reasoning that the rule’s underlying twin rationales of officer safety and evidence preservation were only minimally present and not present at all, respectively, in the context of a traffic citation); Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990) (holding that the seareh-incident-to-a-lawful-arrest rule does not apply to a warrantless search that provides the probable cause for the subsequent arrest because one cannot justify the arrest by the search and then simultaneously justify the search by the arrest).

explaining that the reasoning behind this exception is the "need to disarm the suspect in order to take him into custody [and] ... the need to preserve evidence on his person for later use. at trial"

United States v. Robinson, 414 U.S. 218, 234-35, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (explaining that the reasoning behind this exception is the “need to disarm the suspect in order to take him into custody [and] ... the need to preserve evidence on his person for later use. at trial”). Moreover, as the Supreme Court held in Rawlings v. Kentucky, 448 U.S. 98, 110-11 n. 6, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), the search-incident-to-a-lawful-arrest rule also permits an officer to conduct a full search of an arrestee’s person before he is placed under lawful custodial arrest as long as “the formal arrest follow[s] quickly on the heels of the challenged search of ... [his person]” and the fruits of that search are not necessary to sustain probable cause to arrest him.


holding that the seareh-incident-to-a-lawful-arrest rule does not apply to a warrantless search that provides the probable cause for the subsequent arrest because one cannot justify the arrest by the search and then simultaneously justify the search by the arrest


Context: Where ere the agency's fact-finding process was sufficiently flawed, this court may vacate and remand for new findings.

identifying "significant error" in BIA's failure to consider background materials 'that corroborated petitioner's subjective fear of persecution

See Tian-Yong Chen v. INS, 359 F.3d 121, 128-29 (2d Cir.2004) (remanding where “both the BIA and the IJ overlooked potentially significant evidence supporting [petitioner’s] applications for asylum”); see also Yan Chen, 417 F.3d at 272 (identifying “significant error” in BIA’s failure to consider background materials 'that corroborated petitioner’s subjective fear of persecution). While the agency is not required to “parse or refute” each piece of evidence, Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006), there must be some indication that the evidence has been considered, Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir.1992) (“[W]e cannot assume that the BIA considered factors it failed to mention in its decision.”) (internal quotation marks omitted).

remanding where "both the BIA and the IJ overlooked potentially significant evidence supporting [petitioner's] applications for asylum"


Context: Finally, we do not find merit in the claim that the DOT lacked the authority to subject a certificate to a reversionary interest. We have previously upheld the imposition of a condition on an air carrier's permit that restricted the carrier's future operating authority.

See Dan-Air Servs., Ltd. v. CAB, 475 F.2d 408 (D.C.Cir.1973) (affirming implementation of condition requiring foreign air carriers to file for advance approval of all passenger charter flights approximately two years after permits were issued); see also Fidelity Television, Inc. v. FCC, 515 F.2d 684, 703 n. 45 (D.C.Cir.) (affirming FCC grant of T.V. license conditioned on outcome of other proceedings), cert. denied, — U.S. -, 423 U.S. 926, 96 S.Ct. 271, 46 L.Ed.2d 253 (1975).


Context: Bernesser contends that he was convicted upon an improper amendment to the indictment because the perjury count in the indictment referred to the "second phase" of the Shea Stadium job and the evidence at trial regarding the rigged bidding concerned "Phase Three" of the project.

where "new basis for conviction" added by theory not presented in indictment, cannot assume jury convicted on original indictment theory

See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960) (where “new basis for conviction” added by theory not presented in indictment, cannot assume jury convicted on original indictment theory); see also United States v. Zingaro, 858 F.2d 94, 98 (2d Cir.1988) (constructive amendment of indictment is per se violation of grand jury clause of Fifth Amendment).


Context: However, as to Horner's Fourth Amendment claims against John Does 14 through 17 involving the June 3, 2013, incident, we conclude that the complaint, liberally construed, sufficiently alleged that these defendants unlawfully searched the identified premises.

See Norval v. Whitesell, 605 S.W.2d 789, 790 (Mo.1980) (en banc) (for res judicata to apply, there must be identities of: thing sued for, cause of action, parties, and quality of person for or against whom claim is made); see also Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.1995) (“[A]n action may proceed against a party whose name is unknown if the complaint makes allegations specific enough to permit the identity of the party to be ascertained after reasonable discovery.”).

"[A]n action may proceed against a party whose name is unknown if the complaint makes allegations specific enough to permit the identity of the party to be ascertained after reasonable discovery."


Context: The unfairness in this procurement occurred when the Air Force, realizing that Centex believed it could not do a CAIV tradeoff in the evaluation phase, failed to advise Centex of the Government's different interpretation and awarded to Scott, which had submitted its proposal on that basis. The traditional remedy for a procurement error of this kind is not a directed award, but a recompetition with all players enjoying an equal playing field in a way that the Government obtains its true best value at a benefit to the taxpayers.

United Payors, 55 Fed.Cl. at 334 (ordering termination of awarded contract and allowing the Government to resolicit bids); cf. ATA Defense Indus., Inc. v. United States, 38 Fed.Cl. 489, 509 (1997) (enjoining continued performance of a legally defective procurement and authorizing reprocurement in a flexible manner so as to avoid harm to military readiness).


Context: Smith also attempts to ground her negligence claim in alleged violations of FBI Informant Guidelines and Department of Justice Confidential Informant Policies. But Smith cites no support for the proposition that violations of internal federal guidelines and policies can give rise to a Georgia negligence claim, and indeed the law is to the contrary.

"Violating an internal policy or procedure does not create a cause of action under the FTCA against the government unless the challenged conduct is independently tortious under applicable state law."

See, e.g., Dalrymple v. United States, 460 F.3d 1318, 1327 (11th Cir. 2006) (“Violating an internal policy or procedure does not create a cause of action under the FTCA against the government unless the challenged conduct is independently tortious under applicable state law.”); cf. Zelaya v. United States, 781 F.3d 1315, 1324 (11th Cir. 2015) (noting that “the fact that a federal employee has failed to perform duties imposed by federal law is insufficient by itself to render the federal government liable under ' the FTCA” and that “a state tort cause of action is a sine qua non of FTCA jurisdiction”).

noting that "the fact that a federal employee has failed to perform duties imposed by federal law is insufficient by itself to render the federal government liable under ' the FTCA" and that "a state tort cause of action is a sine qua non of FTCA jurisdiction"


Context: Appellant and the State are now returned to status quo ante, and the State may seek to try Appellant for the capital crime of first-degree murder. Thus, no jeopardy attached to the proceeding or the verdict finding Appellant guilty of second-degree murder.

See Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) (holding double jeopardy did not bar retrial where a jury could not render a verdict and a mistrial was granted); see also Ricketts v. Adamson, 483 U.S. 1,11,107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (holding double jeopardy did not prohibit capital prosecution of defendant who pled guilty to second-degree murder and agreed to testify against co-defendants but violated plea agreement by refusing to testify at retrial, and state properly sought new indictment for capital murder resulting in death sentence imposed at trial for first-degree murder); Sattazahn v. Pennsylvania, 537 U.S. 101, 112-13, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (holding that where penalty phase jury deadlocked on sentence, and trial court imposed default life sentence required by state law, but conviction was later reversed, neither double jeopardy nor due process barred new trial for capital murder with exposure to death penalty).


holding that where penalty phase jury deadlocked on sentence, and trial court imposed default life sentence required by state law, but conviction was later reversed, neither double jeopardy nor due process barred new trial for capital murder with exposure to death penalty


Context: With respect to the mother's cohabitation, the trial court reasoned that it does not allow unmarried men and women to cohabitate in the presence of the child and therefore Moses' relationship with her partner is meretricious per se. However, Georgia's appellate courts have held that a parent's cohabitation with someone, regardless of that person's gender, is not a basis for denying custody or visitation absent evidence that the child was harmed or exposed to inappropriate conduct.

affirming the trial court's finding that there was no change in material circumstances even though both parents were involved in meretricious relationships, because there was no evidence that the child had been exposed to inappropriate conduct

See, e.g., Hayes v. Hayes, 199 Ga. App. 132, 133 (404 SE2d 276) (1991) (affirming the trial court’s finding that there was no change in material circumstances even though both parents were involved in meretricious relationships, because there was no evidence that the child had been exposed to inappropriate conduct); Livesay v. Hilley, 190 Ga. App. 655, 656-657 (2) (379 SE2d 557) (1989) (mother’s cohabitation provides no basis for a change in custody absent evidence of harm to the child); see also Brandenburg v. Brandenburg, 274 Ga. 183, 184 (1) (551 SE2d 721) (2001) (wherein the Supreme Court of Georgia reversed an order which prohibited contact between the children and their father’s live-in girlfriend, because there was no evidence that the children had been exposed to inappropriate conduct or had been adversely affected by the relationship).

wherein the Supreme Court of Georgia reversed an order which prohibited contact between the children and their father's live-in girlfriend, because there was no evidence that the children had been exposed to inappropriate conduct or had been adversely affected by the relationship


mother's cohabitation provides no basis for a change in custody absent evidence of harm to the child


Context: On appeal, Mr. Baney does not challenge the Board's determination that collateral estoppel bars his leave-related claims. We agree with the Board that Mr. Baney's claims are barred by collateral estoppel because they challenge the same issues that Mr. Baney actually litigated and that were necessary to the decisions in previous proceedings.

See, e.g., Baney v. Dep’t of Justice, 409 Fed.Appx. 319 (Fed.Cir.2010) (finding no USERRA violation for charging Mr. Baney with eleven and a half hours of AWOL in November 2008); Baney v. Dep’t of Justice, 263 Fed.Appx. 892 (Fed.Cir.2008) (finding no USERRA violation for charging Mr. Baney with 23 days of leave while on active military duty for 30 days); see also Baney v. Dep’t of Justice, 327 Fed.Appx. 895 (Fed.Cir.2009) (holding that Mr. Baney’s challenge to being charged with 208 hours of annual leave while on active military duty for 30 days was barred by the res judicata effects of our 2008 decision).

holding that Mr. Baney's challenge to being charged with 208 hours of annual leave while on active military duty for 30 days was barred by the res judicata effects of our 2008 decision


finding no USERRA violation for charging Mr. Baney with 23 days of leave while on active military duty for 30 days


Context: In view of the medical evidence that the veteran suffered rectal bleeding in 1988 and the veteran's assertions that he had suffered from a similar condition immediately after service and had received medical treatment for that condition in 1948 and subsequently, the veteran reasonably raised to VA and the BVA a claim for service connection for that condition and the Board should have adjudicated that claim or remanded it to the Regional Office (RO) for further development.

BVA required to review all issues "reasonably raised from a liberal reading" of "all documents or oral testimony submitted pri- or to the BVA decision"

See EF v. Derwinski, 1 Vet.App. 324, 326 (1991) (BVA required to review all issues “reasonably raised from a liberal reading” of “all documents or oral testimony submitted pri- or to the BVA decision”); 38 C.F.R. § 19.9 (1992) (remand for further development); see also Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (BVA may be required to remand reasonably raised claim for adjudication by RO in first instance).


Context: "A Rule 11 error affects substantial rights only where the defendant shows a reasonable probability that but for the error, [s]he would not have entered a guilty plea."

United States v. Gray, 581 F.3d 749, 754 (8th Cir. 2009) (per curiam); see United States v. Gillen, 449 F.3d 898, 903-04 (8th Cir. 2006) (concluding that error in failure to give Rule 11 warning verbatim was harmless when agreement contained warning'and defendant affirmed that he understood the agreement); see also United States v. Dominguez Benitez, 542 U.S. 74, 85, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (“And even if there were reason to think the warning from the bench could have mattered,” the warning contained in the plea agreement “tends to show that the Rule 11 error made no difference to the outcome here.”).

"And even if there were reason to think the warning from the bench could have mattered," the warning contained in the plea agreement "tends to show that the Rule 11 error made no difference to the outcome here."


Context: . In Geraghty, which was argued and decided contemporaneously with Roper, the Court specifically reserved the question whether a named plaintiff who settles his individual claim after denial of class certification may, consistent with Article III, appeal from the adverse ruling on class certification.

noting that the "'procedural right' recognized in Geraghty, to appeal a certification denial ... may be released as part of a plaintiff's voluntary settlement."

See also Walsh v. Ford Motor Co., 945 F.2d 1188, 1191 (D.C.Cir.1991) (noting that the “‘procedural right’ recognized in Geraghty, to appeal a certification denial ... may be released as part of a plaintiff's voluntary settlement.”) (footnote omitted).

Compare Shores v. Sklar, 885 F.2d 760 (11th Cir.1989), cert. denied, 493 U.S. 1045, 110 S.Ct. 843, 107 L.Ed.2d 838 (1990) (named plaintiff's acceptance of tender and consent to an entry of judgment in his favor "given without reservation of a right to appeal, bars a subsequent appeal of the order denying class certification") with Love v. Turlington, 733 F.2d 1562 (11th Cir.1984) (holding that where plaintiff had expressly attempted to retain the right to appeal from the denial of class certification, his appeal from denial of class certification was not moot).


Context: In Brown, the Supreme Court noted that the defendant's previous confession during the course of his illegal detention, believed incorrectly by him to be admissible, "bolstered the pressures for him to give the second [confession], or at least vitiated any incentive on his part to avoid self-incrimination." As in Brown, the detectives crossed the Rubicon once Det. Mitchell spotted and Antone confessed to that cocaine.

United States v. Santa, 236 F.3d 662, 678 (11th Cir.2000) (analogizing Brown, and holding that signing a consent form is not an intervening act if drugs were found and admitted to earlier); see Robeles-Ortega, 348 F.3d at 684 (similar); United States v. Maez, 872 F.2d 1444, 1457 (10th Cir.1989) (similar); see also United States v. Washington, 387 F.3d 1060, 1074 (9th Cir.2004) (signing consent form in and of itself cannot constitute an intervening act); cf. United States v. Oguns, 921 F.2d 442, 447 (2d Cir.1990) (signing consent form was an intervening act sufficient to dissipate the taint associated with illegal entry in part because agents did not seize any evidence until after the defendant consented to the search).


signing consent form was an intervening act sufficient to dissipate the taint associated with illegal entry in part because agents did not seize any evidence until after the defendant consented to the search


Context: Because ditches are important, so too are the rights attendant upon a ditch easement. The holder of a ditch easement has the right to inspect, operate, maintain, and repair the ditch.

Osborn & Caywood Ditch Co. v. Green, 673 P.2d 380, 383 (Colo.App.1983) ("[The owner of the easement, or dominant estate, may do whatever is reasonably necessary to permit full use and enjoyment of the easement including the exercise of rights of ingress and egress for maintenance, operation, and repair."); see also Yunker v. Nichols, 1 Colo. 551, 555 (1872) ("It may be said, that all lands are held in subordination to the dominant right of others, who must necessarily pass over them to obtain a supply of water to irrigate their own lands....").


Context: The district court properly dismissed McCoy's action because McCoy failed to allege facts sufficient to show that Caccio-la's conduct was arbitrary, capricious, or did not advance a legitimate correctional goal.

See Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir.2012) (setting forth the elements of a § 1983 retaliation claim in the prison context); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.1995) (“The plaintiff bears the burden of pleading and proving the absence of - legitimate correctional goals for the conduct of which he complains.”); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.2010) (although pro se pleadings are to be construed liberally, a plaintiff must present factual allegations sufficient to state a plausible claim for relief).

setting forth the elements of a SS 1983 retaliation claim in the prison context


"The plaintiff bears the burden of pleading and proving the absence of - legitimate correctional goals for the conduct of which he complains."


Context: In that regard, the court is not entirely convinced that the filing of Donaldson's January 9, 2004, Rule 702 challenge to Mr. Burton's opinions, standing alone, "substantially justified" or provided adequate reason for another expert report. Moreover, notwithstanding Donaldson's arguments about potential harm from an eleventh hour revision to an expert's report, it is clear in this case that Donaldson has found and used an expert to challenge the revised report, and the parties have rehearsed their jury arguments regarding the precise issues raised by the revised report.

considering, inter alia, the opposing party's need for time to prepare for the testimony and whether a continuance would be useful

See FIRE, 220 F.3d at 902-03 (failure to meet a disclosure deadline may be excused if the failure was “harmless”); cf. Jochims, 144 F.R.D. at 353-54 (considering, inter alia, the opposing party’s need for time to prepare for the testimony and whether a continuance would be useful). Ultimately, the court concludes that the parties’ arguments for and against admissibility of the March 1, 2004, report present jury questions concerning the weight to be given that report.

failure to meet a disclosure deadline may be excused if the failure was "harmless"


Context: Substantial evidence also does not support the ALJ's finding that Owens' medication is not indicative of Owens' limitations. Moreover, the ALJ's observations at the hearing and Owens' daily activities do not necessarily support a finding that she is not disabled.

holding that ALJ may not base adverse credibility finding on his perceptions of claimant's pain at the hearing where record shows objective evidence of claimant's pain

See Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985) (per curiam) (holding that ALJ may not base adverse credibility finding on his perceptions of claimant’s pain at the hearing where record shows objective evidence of claimant’s pain); see also Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir.2001) (stating that claimant’s testimony about her daily activities does not detract from her credibility about pain or being disabled unless the activities consume a substantial part of her day).

stating that claimant's testimony about her daily activities does not detract from her credibility about pain or being disabled unless the activities consume a substantial part of her day


Context: Our decision to exclude interviews with news reporters not only conforms to the purpose and policy of the absolute privilege, but is in line with other jurisdictions who have considered the issue.

See Kennedy v. Cannon, 229 Md. 92, 182 A.2d 54, 58 (1962) (the “absolute privilege will not attach to counsel’s extrajudicial publications, related to the litigation, which are made outside the purview of the judicial proceeding” (citations omitted)); Barto v. Felix, 250 Pa.Super. 262, 378 A.2d 927, 930 (1977) (“judicial immunity does not protect the public defender in this case, for the remarks made by him at the press conference were not made at a judicial proceeding ... [these are not the] activities which judicial immunity was designed to protect”); see also Soliz v. Williams, 74 Cal.App.4th 577, 88 Cal.Rptr.2d 184 (1999) (judge who made defamatory comments during settlement conference was immune, but was liable for false statements to journalists which made plaintiff appear to be a liar as these comments were not made within recognized judicial functions); Mills, 245 Iowa at 593, 63 N.W.2d at 227 (absolute privilege not extended to mayor for defamatory comments made at city council meeting).

"judicial immunity does not protect the public defender in this case, for the remarks made by him at the press conference were not made at a judicial proceeding ... [these are not the] activities which judicial immunity was designed to protect"


absolute privilege not extended to mayor for defamatory comments made at city council meeting


Context: 7-Eleven responds that the sale-for-resale exemption does not require that the reseller actually collect sales tax on the taxable item, analogizing to resale transactions between contractors and the federal government.

See Day & Zimmermann, Inc. v. Calvert, 519 S.W.2d 106, 110-11 (Tex.1975) (holding that contractor who transferred title of items to federal government could claim sale-for-resale exemption even though ultimate resale would not actually be taxed, based on constitutional prohibition against states taxing federal government); see also Raytheon E-Systems, 101 S.W.3d at 568, 570 (applying Day & Zimmermann analysis to contractor’s purchase of tangible overhead materials allocated as indirect costs to contracts with federal government and holding that purchase qualified for sale-for-resale exemption).

applying Day & Zimmermann analysis to contractor's purchase of tangible overhead materials allocated as indirect costs to contracts with federal government and holding that purchase qualified for sale-for-resale exemption


Context: On appeal, a court reviews the decision whether to award sanctions under an abuse of discretion standard.

"The standard of review concerning a Bankruptcy Court's denial of sanctions is abuse of discretion."

LaPrade v. Kidder Peabody & Co., Inc., 146 F.3d 899, 904 (D.C.Cir.1998) (section 1927); In re Johnson, 236 B.R. 510, 518 (D.D.C.1999) (“The standard of review concerning a Bankruptcy Court’s denial of sanctions is abuse of discretion.”); see also In re Downs, 103 F.3d 472, 478 (6th Cir.1996) (district court reviews a bankruptcy court’s sanctions decision under a “clear abuse of discretion” standard).

district court reviews a bankruptcy court's sanctions decision under a "clear abuse of discretion" standard


Context: Unfortunate as the circumstances described by the court are, they are not "extraordinary." They are the common collateral damage of imprisonment and are far enough removed from those circumstances that existing case law has found exceptional that we must conclude that the district court acted outside of permissible limits in granting the downward departure for family circumstances.

vacating a downward departure where the defendant's three children were minors and depended on his financial support to maintain their standard of living

See, e.g., United States v. Johnson, 964 F.2d 124, 129 (2d Cir.1992) (upholding departure where the defendant was solely responsible for the upbringing of four young children, including an infant); United States v. Alba, 933 F.2d 1117, 1122 (2d Cir.1991) (upholding departure where the defendant worked at two jobs to support his wife, two children, grandmother, and a disabled father, who depended on the defendant’s physical strength “to help him get in and out of his wheelchair”); see also Faria, 161 F.3d at 763 (vacating a downward departure where the defendant’s three children were minors and depended on his financial support to maintain their standard of living); United States v. Galante, 111 F.3d 1029, 1035 (2d Cir.1997) (upholding downward departure where the defendant was primarily responsible for supporting a wife and two children and where the defendant’s wife spoke little English and had a limited earning capacity), reh’g en banc denied, 128 F.3d 788, 788 (2d Cir.1997) (in banc) (per curiam) (“[T]he court regards the panel decision as limited to its precise facts and not an invitation to district judges to depart downward in the absence of truly exceptional family circumstances.”).


upholding departure where the defendant worked at two jobs to support his wife, two children, grandmother, and a disabled father, who depended on the defendant's physical strength "to help him get in and out of his wheelchair"


Context: Most federal loan programs for medical education require that the debtor show that it would be unconscionable for the bankruptcy court to not discharge their medical school loans. Courts have rarely reached that conclusion.

See In re Dillingham, 104 B.R. 505 (Bankr.N.D.Ga.1989) (it was not unconscionable to hold student debt in excess of $100,000 non dischargeable where neither doctor nor his dependents had any health problems and the doctor earned around $80,000 per year); but see In re Matthews, 150 B.R. 11 (Bankr.W.D.Pa.1992) (it would be unconscionable to hold entire amount of nearly $380,000 (including treble damages and interest) non-disehargeable even though doctor earned $85,000 per year, where doctor had attempted to substitute service in one medically underserved area for another; therefore half of the debt would be discharged); cf. In re Malloy, 144 B.R. 38 (Bankr.E.D.Va.1992) (it would be unconscionable not to discharge student loans of $90,-000 for a failed medical student who appeared incapable of earning more than a subsistence level of pay).


it would be unconscionable not to discharge student loans of $90,-000 for a failed medical student who appeared incapable of earning more than a subsistence level of pay


Context: It has long been held that, in a jury trial, private, intentional communications and/or contacts between jurors and witnesses are generally improper, and convictions in such cases are subject to reversal unless the contacts are proven to be nonprejudicial to the defendant. Such contacts raise fundamental concerns on whether the jury would reach their verdict based solely upon the evidence presented at trial or whether it would be improperly influenced by the inappropriate contacts.

stating, "The requirement that a jury's verdict 'must be based upon the evidence developed at the trial' goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury"

See Turner, 379 U.S. at 472, 85 S.Ct. at 549, 13 L.Ed.2d at 429 (stating, “The requirement that a jury’s verdict ‘must be based upon the evidence developed at the trial’ goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury”)(referencing Sinclair v. United States, 279 U.S. 749, 765, 49 S.Ct. 471, 476, 73 L.Ed. 938, 946 (1929)); see also Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907)(“The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print”).

"The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print"


Context: This court agrees with the conclusion of the Illinois Supreme Court that the prosecutor's comment was not directed at Albanese's silence. Rather, the comment concerned only his lack of remorse for crimes of which he had already been convicted; after the jury had found Albanese guilty beyond a reasonable doubt, he was obviously no longer entitled to be presumed innocent.

rejecting argument that Sentencing Guideline SS 3E1.1 which permits reduction in sentence for "acceptance of responsibility" penalizes defendants for exercising their right to jury trial and their right against self incrimination

People v. Morgan, 59 Ill.2d 276, 319 N.E.2d 764 (1974); United States v. Saunders, 973 F.2d 1354, 1362-63 (7th Cir.1992) (rejecting argument that Sentencing Guideline § 3E1.1 which permits reduction in sentence for “acceptance of responsibility” penalizes defendants for exercising their right to jury trial and their right against self incrimination), cert. denied, — U.S. —, 113 S.Ct. 1026 (1993); see also United States v. Tolson, 988 F.2d 1494 (7th Cir.1993); United States v. Goines, 988 F.2d 750, 776 (7th Cir.1993) (noting trial court’s consideration of defendant’s “utter lack of remorse” in determining appropriate sentence).

noting trial court's consideration of defendant's "utter lack of remorse" in determining appropriate sentence


Context: . A number of the cases have also specifically distinguished Wright on this basis.

But cf. Arneson v. Olson, 270 N.W.2d 125, 132 (N.D.1978) (section of act seeking to limit res ipsa loquitor doctrine by requiring expert testimony or admission of fault in order to impose liability unconstitutionally invades judicial power to establish rules of procedure regarding admissibility of evidence).

E.g., Attorney General v. Johnson, 385 A.2d at 66-67; Prendergast, 256 N.W.2d at 666 ("the medical review panel in the Illinois case was not a panel to provide evidence but was a panel to decide the controversy”); see also Redish, supra note 3, at 794; cf. St. Vincent Hosp., 404 N.E.2d at 598 (rule is for admission rather than exclusion of evidence and does not usurp judicial authority to rule upon admissibility of evidence since courts have previously sanctioned admission of medical expert opinion).


Context: See Notes of Toepfer, AR 684; Toepfer Statement, AR 22 ("The Second Engineer stated they had been having problems with the incinerator and it had not always worked properly."); Eckard Statement, AR 15 ("We asked the Chief Engineer if the Incinerator was working and he stated that he did not think it had been working."); AR 15-16 (noting that Pabillar also "stated that the incinerator had not been working until it was fixed prior to arriving to the U.S."). Plaintiffs do not argue that these crew members had any motive to lie, and the Court can credit these statements.

"Credibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence."

Bean Dredging, LLC v. United States, 773 F.Supp.2d 63, 81 (D.D.C.2011) (“[A]bsent clear error, ‘an agency’s credibility decision normally enjoys almost overwhelming deference.’ ”), quoting Sasol N. Am. Inc. v. NLRB, 275 F.3d 1106, 1112 (D.C.Cir.2002); D.C. Transit Sys., Inc. v. Washington Metro. Area Transit Comm’n, 466 F.2d 394, 414 (D.C.Cir.1972) (“Credibility determinations within the agency’s sphere of expertise are peculiarly within its province, and courts will upset them only if made irrationally.”); see also Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir.1995) (“Credibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence.”), (citation omitted); NLRB v. McCullough Envtl. Serv., Inc., 5 F.3d 923, 928 (5th Cir.1993) (“When findings of fact rest upon credibility determinations, we defer to the NLRB’s findings and will overturn them only in rare circumstances.”); DeSarno v. Dep’t of Commerce, 761 F.2d 657, 661 (Fed.Cir. 1985) (“[T]his Court cannot substitute a contrary credibility determination based on a cold paper record.”).

"[A]bsent clear error, 'an agency's credibility decision normally enjoys almost overwhelming deference.' "


"When findings of fact rest upon credibility determinations, we defer to the NLRB's findings and will overturn them only in rare circumstances."


"[T]his Court cannot substitute a contrary credibility determination based on a cold paper record."


"Credibility determinations within the agency's sphere of expertise are peculiarly within its province, and courts will upset them only if made irrationally."


Context: Hunt, Transcontinental's expert, acknowledged that differential diagnosis was used to treat Crump. Although Hunt would have reached different conclusions regarding Crump's infection, he stated that he agreed with the treatment methodology Daller employed.

noting that the Robinson reliability inquiry focuses "solely on the underlying principles and methodology, not on the conclusions they generate"

See Robinson, 923 S.W.2d at 557 (noting that the Robinson reliability inquiry focuses “solely on the underlying principles and methodology, not on the conclusions they generate”); cf. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 235 (Tex.2010) (“Rather than focus entirely on the reliability of the underlying technique used to generate the challenged opinion, as in Robinson, we have found it appropriate ... [to] determine whether there are any significant analytical gaps in the expert’s opinion that undermine its reliability.”) (citations omitted).

"Rather than focus entirely on the reliability of the underlying technique used to generate the challenged opinion, as in Robinson, we have found it appropriate ... [to] determine whether there are any significant analytical gaps in the expert's opinion that undermine its reliability."


Context: In addition, the totality of the circumstances includes conduct directed not at the plaintiff. Rather, the inquiry concerns the nature of the workplace environment, "and whatever the contours of one's environment, they surely may exceed the individual dynamic between the complainant and [the alleged wrongdoer]."

noting that in reviewing hostile environment cases "[a]ll the circumstances are examined ... [and] [e]videnee of a general atmosphere of hostility toward those of the plaintiffs gender is considered in the examination of all the circumstances"

Id. at 184. See also EEOC v. Fairbrook Medical Clinic, P.A., 609 F.3d 320, 328 (4th Cir.2010); Jennings v. University of North Carolina, 482 F.3d 686 (4th Cir.2007) (en banc) (noting that in reviewing hostile environment cases “[a]ll the circumstances are examined ... [and] [e]videnee of a general atmosphere of hostility toward those of the plaintiffs gender is considered in the examination of all the circumstances”).

"[Wjhether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances."

See also Harris, 510 U.S. at 23, 114 S.Ct. 367 (“[Wjhether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”).


Context: Thus, whether the term "firearm" when used in a statute without being defined is to be given its traditional meaning or a more expansive meaning depends upon the purpose and policy underlying the particular statute. When the statute is designed not only to deter physical harm, but also to deter a broader range of conduct that produces fear of physical harm, a more expansive definition of "firearm" is required in order to effectuate that purpose.

possession of a "sawed-off shotgun" includes inoperable shotgun because the purpose of the statute includes preventing the fear of harm engendered by display of such a weapon

See Holloman, 221 Va. at 198, 269 S.E.2d at 357 (“firearm” includes BB guns where statute prohibits the use of a firearm in the commission of a felony); see also Code § 18.2-282 (“firearm” expressly includes BB guns in statute proscribing the brandishing of a firearm or other weapon similar in appearance); see also Rogers v. Commonwealth, 14 Va. App. 774, 777-78, 418 S.E.2d 727, 729 (1992) (possession of a “sawed-off shotgun” includes inoperable shotgun because the purpose of the statute includes preventing the fear of harm engendered by display of such a weapon). On the other hand, when a statute is designed only to proscribe the act of possessing a firearm or the conduct of a felon in order to reduce a real threat of harm to the public, a narrower, more traditional definition of “firearm” is required. See Timmons v. Commonwealth, 15 Va. App. 196, 200-01, 421 S.E.2d 894, 897 (1992) (“firearm” under statute penalizing the possession of a firearm while in possession of cocaine does not include “ ‘any object’ that [appears to have] capability of firing a projectile, even if it lacks that capability”).

"firearm" includes BB guns where statute prohibits the use of a firearm in the commission of a felony


"firearm" under statute penalizing the possession of a firearm while in possession of cocaine does not include " 'any object' that [appears to have] capability of firing a projectile, even if it lacks that capability"


Context: He merely stated: "Thank you, Judge." Under these circumstances, appellant's contention on appeal that the court erred in sua sponte advising the jury to reconsider its verdicts is not preserved, and he is not entitled to relief on this ground.

"As [defendant] did not object to the course of action ... taken by the court, and apparently indicated his agreement with it, he cannot now be heard to complain that the court's action was wrong."

See Gilliam v. State, 331 Md. 651, 691, 629 A.2d 685 (1993) (“As [defendant] did not object to the course of action ... taken by the court, and apparently indicated his agreement with it, he cannot now be heard to complain that the court’s action was wrong.”), cert. denied, 510 U.S. 1077, 114 S.Ct. 891, 127 L.Ed.2d 84 (1994); Watkins v. State, 328 Md. 95, 99-100, 613 A.2d 379 (1992) (where party acquiesces in court’s ruling, there is no basis for appeal of that ruling), overruled on other grounds, Calloway v. State, 414 Md. 616, 996 A.2d 869 (2010).

"The defendant may not stand mute and later complain about the verdicts he did nothing to cure at the only time a cure was still possible."

See also Tate, 182 Md.App. at 135, 957 A.2d 640 (“The defendant may not stand mute and later complain about the verdicts he did nothing to cure at the only time a cure was still possible.”).


where party acquiesces in court's ruling, there is no basis for appeal of that ruling


Context: From its earliest days this Court has held that where, as here, the consideration clause merely recites a vague phrase such as "for value received" or "for one dollar and other valuable considerations," parol evidence is admissible to show the true consideration for the conveyance.

See also Vanoski v. Thomson, 114 Idaho 381, 757 P.2d 244 (Ct.App.1988), petition for review denied (1988) (where the recital in a deed is merely a receipt or acknowledgment of payment, it is susceptible to explanation or contradiction by parol evidence).

"Under certain conditions parol evidence may be introduced to show the true consideration, or want of consideration for a promissory note or other instrument."

Rosenberry v. Clark, 85 Idaho 317, 324, 379 P.2d 638, 642 (1963) (“Under certain conditions parol evidence may be introduced to show the true consideration, or want of consideration for a promissory note or other instrument.”); Reynolds Irr.


oral evidence offered to show what the "other valuable considerations" were should have been admitted

Dist. v. Sproat, 69 Idaho 315, 206 P.2d 774 (1949) (oral evidence offered to show what the “other valuable considerations” were should have been admitted); Boise Valley Construction Co. v. Kroeger, 17 Idaho 384, 105 P. 1070 (1909) (parol evidence was admissible to explain what was meant by “other considerations”).


parol evidence was admissible to explain what was meant by "other considerations"


Context: Plaintiffs fifth claim alleges that Nuti unlawfully arrested Plaintiff even though he knew that Plaintiff had never pointed a gun at him or at the ground. Taking the facts alleged in the complaint to be true, Nuti is not entitled to qualified immunity on this claim.

"A claim for unlawful arrest is cognizable under SS 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification."

See Dubner v. City of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001) (“A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification.”); cf. Awabdy v. City of Ade lanto, 368 F.3d 1062, 1067 (9th Cir. 2004) (“Among the ways that a plaintiff can rebut a prima fade finding of probable cause is by showing that the criminal prosecution was induced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith.”).

"Among the ways that a plaintiff can rebut a prima fade finding of probable cause is by showing that the criminal prosecution was induced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith."


Context: The BIA abused its discretion by miseharacterizing the declaration Guerra Bautista included with his June 21, 2007, motion to reopen, erroneously finding that the declaration was unsigned and unsworn.

an alien's declaration submitted with a motion to reopen must be accepted as true unless inherently unbelievable

See Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999) (“The BIA abuses its discretion when it ... distorts or disregards important aspects of the alien’s claim.”); see also Chaidez v. Gonzales, 486 F.3d 1079, 1087 (9th Cir.2007) (an alien’s declaration submitted with a motion to reopen must be accepted as true unless inherently unbelievable).

"The BIA abuses its discretion when it ... distorts or disregards important aspects of the alien's claim."


Context: Moreover, the plain language of the statute requires that the person seeking protection under FMLA be unable to perform the functions of her position. 29 U.S.C. SS 2612(a)(1)(D). Consistent with this, courts have focused on the ability to work in determining whether a person is incapacitated for the purposes of the FMLA. However, plaintiffs "mild to moderate impairment" did not prevent her from going to work and she was able to perform all of her job functions.

finding plaintiff who suffered stress from managing father's probate estate could still perform the activities of daily living was actually able to work was not incapacitated for the purposes of FMLA

See Murray, 124 F.3d at 699 (finding plaintiff who suffered stress from managing father’s probate estate could still perform the activities of daily living was actually able to work was not incapacitated for the purposes of FMLA); see also Hodgens v. General Dynamics Corp., 963 F.Supp. 102, 106 (D.R..I.1997) (finding plaintiff was not incapacitated where plaintiff could still perform the functions and duties of his job).


Context: Our cases have suggested that expert testimony is ordinarily required to rebut a defendant physician's claim asserting the therapeutic privilege exception.

"expert testimony as to the proper medical standards of disclosure will be required where a physician justifies his or her nondisclosure of risks to a patient on the basis of the therapeutic privilege exception"

See Bernard I, 79 Hawai'i at 383, 903 P.2d at 688 (“expert testimony as to the proper medical standards of disclosure will be required where a physician justifies his or her nondisclosure of risks to a patient on the basis of the therapeutic privilege exception”); cf. Carr, 79 Hawai'i at 485, 904 P.2d at 499 (noting that, “barring situations where the therapeutic privilege exception to the physician’s duty to disclose is applicable,” expert testimony is not needed to resolve the question of what an individual patient reasonably needs to hear in order to make an informed choice regarding the proposed medical treatment).

noting that, "barring situations where the therapeutic privilege exception to the physician's duty to disclose is applicable," expert testimony is not needed to resolve the question of what an individual patient reasonably needs to hear in order to make an informed choice regarding the proposed medical treatment


Context: An attorney's failure to name a department's municipality in a complaint has no effect on the department's status as a non-person for purposes of a civil rights action. To the contrary, governmental subunits lack the capacity to be sued regardless of whether their accompanying municipalities participate in the lawsuit.

advising pro se plaintiff who sued police department without naming municipality as a defendant that "[p]laintiff should be aware that a police department is not a 'person' subject to suit under SS 1983"

See James, 2006 WL 3733024, at *3 n. 2 (advising pro se plaintiff who sued police department without naming municipality as a defendant that “[p]laintiff should be aware that a police department is not a ‘person’ subject to suit under § 1983”); see also Richardson v. U.S. Marshals Serv., No. Civ. A. 3:07-0304, 2007 WL 1464582, at *2 (M.D.Tenn. May 15, 2007) (observing that a county sheriffs department could not be sued under § 1983 notwithstanding the county’s non-participation in the lawsuit); Shimer v. Shingobee Island Water & Sewer Comm’n, No. Civ. A. 02-953, 2003 WL 1610788, at *4 (D.Minn. Mar.18, 2003) (“[A]bsent specific statutory authority, ... subordinate [governmental] entities do not have the capacity to sue or be sued.”).

observing that a county sheriffs department could not be sued under SS 1983 notwithstanding the county's non-participation in the lawsuit


"[A]bsent specific statutory authority, ... subordinate [governmental] entities do not have the capacity to sue or be sued."


Context: While KE.W's beliefs and mental illness certainly give rise to the potential of harm to others, in order to support commitment, the threat of harm must be substantial and based on actual dangerous behavior manifested by some overt act or threats in the past.

holding that bare psychiatric expert opinion of "potential danger" to others insufficient to support commitment

See J.M., 178 S.W.3d at 196; L.C.F., 96 S.W.3d at 657 (holding that “an opinion of a ‘potential danger’ to others is not sufficient to support a commitment under this standard”); C.O., 65 S.W.3d at 181-82 (holding that “[b]are psychiatric expert opinion of a potential danger to others is insufficient to support a commitment” and there must be facts in record to justify conclusion that appellant was likely to cause serious harm); see also Broussard, 827 S.W.2d at 622 (holding that bare psychiatric expert opinion of “potential danger” to others insufficient to support commitment).

holding that "an opinion of a 'potential danger' to others is not sufficient to support a commitment under this standard"


holding that "[b]are psychiatric expert opinion of a potential danger to others is insufficient to support a commitment" and there must be facts in record to justify conclusion that appellant was likely to cause serious harm


Context: MSES's system, though inefficient, appears facially to be neutral. The percentages of referred and unreferred applicants equalled the overall racial percentages in the 211 and 311 pool: The same is true for out-of-code referral (which slightly favored black applicants). Of course, facial neutrality at the bottom line cannot immunize an agency or employer from proved acts of discrimination against an individual; but, at the same time, we cannot infer discrimination against an individual from statistics displaying neutrality toward the group.

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-80, 98 S.Ct. 2943, 2950-51, 57 L.Ed.2d 957 (1978) (“Proof that [a] work force was racially balanced or that it contained a disproportionately high percentage of minority employees is not wholly irrelevant on the issue of intent when that issue is yet to be decided”); cf. Connecticut v. Teal, 457 U.S. 440, 454, 102 S.Ct. 2525, 2534, 73 L.Ed.2d 130 (Racially balanced promotions at the bottomline did not relieve an employer from the requirement that it show that a written screening test, determining the eligible candidates for promotion and disproportionately disqualifying blacks, was sufficiently job-related).

"Proof that [a] work force was racially balanced or that it contained a disproportionately high percentage of minority employees is not wholly irrelevant on the issue of intent when that issue is yet to be decided"


Context: Clayton's initial arguments, which essentially contend that the Form 1040X cannot give rise to legal liability for filing a false tax return, have no merit. We have rejected similar arguments brought under Levy that certain schedules appended to tax returns could not give rise to legal liability for filing a false tax return.

holding that a false Schedule C is an "integral" part of a tax return and is incorporated therein by reference, thus giving rise to liability under SS 7206(1

United States v. Damon, 676 F.2d 1060, 1063-64 (5th Cir.1982) (holding that a false Schedule C is an “integral” part of a tax return and is incorporated therein by reference, thus giving rise to liability under § 7206(1)); United States v. Taylor, 574 F.2d 232, 237 (5th Cir.1978) (same as to Schedules E and F). Also, as we previously discussed, filing a false claim for the refund of taxes may give rise to legal liability for filing a false tax return, and the mere use of the correct legal procedure will not preclude liability.

stating that the defendant "cannot disguise his knowing disregard of well-established legal principles and duties as a good faith procedural effort to evade those principles and duties"

See Ambort, 405 F.3d at 1116 (stating that the defendant “cannot disguise his knowing disregard of well-established legal principles and duties as a good faith procedural effort to evade those principles and duties”).


Context: It is a possessory lien attaching to the seized personal property to pay the judgment debt. The conception of the execution levy as a possessory lien is consistent with case law in Michigan which repeatedly refers to the execution by levy as an "execution lien."

affirming the lower court's finding that a sheriff who executed on property had no interest in the seized property because a secured creditor's lien exceeded the value of the property

See In re Ann Arbor Mach. Co., 278 F. 749, 750 (E.D.Mich.1922) (describing how the “petitioner obtained a writ of execution upon said judgment, and said execution was, on the same day, levied by the sheriff ... upon certain personal property belonging to the bankrupt, by seizure thereof under such writ of execution, which then and thereby became a lien on such property”); Williams v. Banana Distrib. Co., 59 F.2d 645, 646-47 (6th Cir.1932) (discussing a series of cases decided by the Michigan Supreme Court involving priority among creditors, and referring to seizing creditors as having a “lien” on the debtors’ property); Berry v. Pattison (In re Berry), 30 B.R. 36, 37 (Bankr.E.D.Mich. 1983) (addressing avoidance of an “execution lien” on a camper that arose when a sheriff executed on a judgment and seized the camper); see also Stack v. Olmsted, 127 Mich. 359, 86 N.W. 851, 852-53 (1901) (affirming the lower court’s finding that a sheriff who executed on property had no interest in the seized property because a secured creditor’s lien exceeded the value of the property); Kelly v. Fifth Third Bank, No. 307220, 2012 WL 4900561, at *7 (Mich.Ct.App. Oct. 16, 2012) (distinguishing between execution liens and judgment hens as “two different mechanisms by which a judgment creditor can attempt collection on a judgment by going after real property”) (quotation marks and citation omitted).

describing how the "petitioner obtained a writ of execution upon said judgment, and said execution was, on the same day, levied by the sheriff ... upon certain personal property belonging to the bankrupt, by seizure thereof under such writ of execution, which then and thereby became a lien on such property"


distinguishing between execution liens and judgment hens as "two different mechanisms by which a judgment creditor can attempt collection on a judgment by going after real property"


discussing a series of cases decided by the Michigan Supreme Court involving priority among creditors, and referring to seizing creditors as having a "lien" on the debtors' property


addressing avoidance of an "execution lien" on a camper that arose when a sheriff executed on a judgment and seized the camper


Context: . Given the arguments presented to us, we do not decide whether, in some other circumstances, an order to pay restitution may itself be a restraint on liberty sufficient to constitute custody within the meaning of the habeas statutes that would allow relief from the restitution order.

" '[T]he payment of restitution or a fine, absent more, is not the sort of significant restraint on liberty contemplated in the custody requirement of the federal habeas statutes.' "

But see Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir.2009) (" '[T]he payment of restitution or a fine, absent more, is not the sort of significant restraint on liberty contemplated in the custody requirement of the federal habeas statutes.’ ”); Westberry v. Keith, 434 F.2d 623, 624-25 (5th Cir.1970) (per curiam) (no custody where petitioner suffered fine and revocation of driver’s license); Spring v. Caldwell, 692 F.2d 994, 996-99 (5th Cir.1982) (“We hold that an arrest warrant issued for willful refusal to pay a fine does not amount to custody within the meaning of 28 U.S.C. §§ 2241 and 2254 in habeas cases challenging the constitutionality of a statute that only imposes a fine.”). We also express no opinion on the availability of other writs, such as a writ of coram nobis, to bring collateral attacks against restitution orders.

"Whether a fine or restitution order could ever be such a restraint on the liberty of a petitioner as to amount to custody is a question we need not reach today ...."

See Kaminski v. United States, 339 F.3d 84, 87 (2d Cir.2003) ("Whether a fine or restitution order could ever be such a restraint on the liberty of a petitioner as to amount to custody is a question we need not reach today ....”)


no custody where petitioner suffered fine and revocation of driver's license


"We hold that an arrest warrant issued for willful refusal to pay a fine does not amount to custody within the meaning of 28 U.S.C. SSSS 2241 and 2254 in habeas cases challenging the constitutionality of a statute that only imposes a fine."


Context: Powell, therefore, does not establish any irreconcilable conflict embedded within state case law, much less one that might allow us to disregard Jones and its progeny.

in discrediting a subterfuge-type argument, the Supreme Court "rejected] the view that anything in the Due Process Clause bars States from making changes in their criminal law that have the effect of making it easier for the prosecution to obtain convictions"

See Mullaney, 421 U.S. at 691 & n. 11, 95 S.Ct. 1881 (referencing “obvious subterfuge” as an example of “extreme circumstances” that may warrant setting aside state court exposition of state law); see also McMillan v. Pennsylvania, 477 U.S. 79, 89 n. 5, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (in discrediting a subterfuge-type argument, the Supreme Court “rejected] the view that anything in the Due Process Clause bars States from making changes in their criminal law that have the effect of making it easier for the prosecution to obtain convictions”).

referencing "obvious subterfuge" as an example of "extreme circumstances" that may warrant setting aside state court exposition of state law


Context: Lesa Morse was handcuffed by Sergeant Cloutier due to concerns about officer safety after she began yelling and did not obey commands to hang up the phone. See Bate-man Narrative Report, Docket No. 136-3, at 2. Again, cases suggest that such a use of force was at least arguably reasonable.

See Ingram v. City of Columbus, 185 F.3d 579, 591-92 (6th Cir.1999) (observing that officers may detain innocent occupants with handcuffs during arrest of criminal suspect in a home where the officers feared for their personal safety); cf. Los Angeles County, California v. Rettele, 550 U.S. 609, 614, 127 S.Ct. 1989, 167 L.Ed.2d 974 (2007) (“[O]fficers may take reasonable action to secure the premises and to ensure their own safety” while executing a search warrant, including holding innocent occupants at gunpoint); Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (holding that it is permissible under the Fourth Amendment to detain occupants of a residence while executing a search warrant of the residence).

"[O]fficers may take reasonable action to secure the premises and to ensure their own safety" while executing a search warrant, including holding innocent occupants at gunpoint


holding that it is permissible under the Fourth Amendment to detain occupants of a residence while executing a search warrant of the residence


Context: Even if Costa Rica had jurisdiction over this matter, Del Monte again would be left with "no remedy at all" if Costa Rican courts could not enjoin Dole's activities in the United States and Honduras, where Dole grows its pineapples. In contrast, it is well-established that a United States district court is the proper jurisdiction to "award relief to an American corporation against acts of trademark infringement and unfair competition consummated in a foreign country by a citizen and resident of the United States."

enjoining, under Lanham Act, defendant's assembly of counterfeit watches in Mexico that were later sold or transferred to United States where parties were American corporations

Steele v. Bulova Watch Co., 344 U.S. 280, 281 (1952), 73 S.Ct. 252, 97 L.Ed. 319 (enjoining, under Lanham Act, defendant’s assembly of counterfeit watches in Mexico that were later sold or transferred to United States where parties were American corporations); see also American Rice, Inc. v. Arkansas Rice Growers Coop. Ass’n, 701 F.2d 408 (5th Cir.1983) (holding denial of foinom non conveniens motion proper where American corporation sought to enjoin another American corporation’s Lan-ham Act violations in Saudi Arabia).

holding denial of foinom non conveniens motion proper where American corporation sought to enjoin another American corporation's Lan-ham Act violations in Saudi Arabia


Context: Regarding her subjective understanding, this Court notes that the threat to strike or even smash Ms. Beal took place in late 2002. Although Ms. Beal testified she began to steal from her teller drawer as early as January 2003, the embezzlement of $47,000.00 did not begin until April 29, 2003, and continued through June 2, 2003. This Court cannot conclude Ms. Beal began stealing money from Union Trust in the spring of 2003 because her husband had physically threatened her once in late 2002.

See United States v. Anderson, 139 F.3d 291, 300 (1st Cir.1998), cert denied, 525 U.S. 866, 119 S.Ct. 158, 142 L.Ed.2d 129 (1998)(downward departure denied because coercive effect of past physical violence was not present during relevant time period); United States v. Arthurs, 73 F.3d 444, 448-49 (1st Cir.l996)(a “lingering threat of future harm” is insufficient for a duress defense); but see United States v. Amor, 24 F.3d 432, 439 (2d Cir.1994)(the relationship between the threats and the crime was “close enough” to establish a “causal nexus”).

the relationship between the threats and the crime was "close enough" to establish a "causal nexus"


a "lingering threat of future harm" is insufficient for a duress defense


Context: Given its conclusion that Smith was responsible for over 8.4 kilograms of cocaine base, it is plain that the 2012 district court would have found Smith responsible for a disqualifying amount of cocaine base-- more than 840 grams -- had it expressly followed the 2008 resentencing court. While we must nonetheless review the 2012 district court's drug calculation for clear error, its alleged failure to follow the law of the case is, by itself, harmless.

district court's error is harmless if it "[does] not affect the district court's selection of the sentence imposed"

See Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (district court’s error is harmless if it “[does] not affect the district court’s selection of the sentence imposed”); cf. United States v. Thompson, 994 F.2d 864, 868 (D.C.Cir.1993) (“Because the judge made it clear he would impose the same sentence under either criminal history category, it would be futile to remand for resentencing and we are not required to do so.”).

"Because the judge made it clear he would impose the same sentence under either criminal history category, it would be futile to remand for resentencing and we are not required to do so."


Context: A district court has "significant discretionary authority" to set and enforce deadlines in cases, particularly in light of concerns regarding case or docket management. In analogous circumstances, the First Circuit has held that there should be "substantial and convincing evidence" to allow a belated attempt to amend, particularly when a matter has been briefed and is pending before the court.

Steir v. Girl Scouts of USA, 383 F.3d 7, 12 (1st Cir.2004) (upholding denial of motion to amend complaint where opposing party had moved for summary judgment); see also Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 231 (1st Cir.2005) (same, where motion to amend was made two years after filing of complaint and after summary judgment motion was fully briefed by both parties).


Context: However, she also testified she regularly met with angry clients in "low-class areas" and was an experienced social worker. Beginning with Hagood, the types of precipitating events that give rise to purely psychological compensable injuries are consistently described as shocking, frightening, traumatic, catastrophic and unexpected.

See Hagood, 177 Va. 204, 13 S.E.2d 291 (electric flash and noise similar to a shotgun blast deemed sufficient); see also Daniel Const. Co. v. Tolley, 24 Va.App. 70, 480 S.E.2d 145 (1997) (the explosion of 100 pounds of dynamite without warning while the employee was unloading concrete in a mine shaft nearby deemed sufficient); Hercules, Inc. v. Gunther, 13 Va.App. 357, 412 S.E.2d 185 (1991) (an explosion that killed two people and threw the employee in the air deemed sufficient); Dunn, 9 Va.App. at 477, 389 S.E.2d at 182 (the death of a severely burned patient cared for by an EMT deemed insufficient).


an explosion that killed two people and threw the employee in the air deemed sufficient


the death of a severely burned patient cared for by an EMT deemed insufficient


Context: Barrett needed to prove that pepper spray was applied "maliciously and sadistically to cause harm" rather than in a "good-faith effort" to gain his compliance. The videorecording of the cell extraction confirms that pepper spray was used only because Barrett-who was in need of prompt medical attention after overdosing-refused to leave his cell.

explaining that mace is appropriately used when "reasonably necessary to ... subdue recalcitrant prisoners"

See Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.1984) (explaining that mace is appropriately used when “reasonably necessary to ... subdue recalcitrant prisoners”); see also Scott v. Harris, 550 U.S. 372, 378-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (explaining that granting judgment for defendant is appropriate where video discredits plaintiffs version of events). And in his own testimony, Barrett backed away from his allegation that he was struck by a “projectile.”


Context: Other courts have found that class action claims under the TCPA represent the superior remedy.

See Sadowski, 2008 WL 2224892, at *5 (superiority requirement is satisfied in junk fax cases in consumer actions involving small individual claims because each member s damages too insignificant to provide incentive to pursue claims individually); Blitz, 677 S.E.2d at 10 (small claims courts cannot per se be superior venue for violations of the TCPA because they lack authority to grant injunctions); see also Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997) (policy at core of class action mechanism is to overcome problem that small recoveries do not provide incentive for individuals to bring solo actions to protect their rights).


small claims courts cannot per se be superior venue for violations of the TCPA because they lack authority to grant injunctions


Context: Were we to conclude that a nominal damage award in a civil rights action based on a nonpecuniary deprivation represents mere de minimis success, we would rule out fee shifting under section 1988 notwithstanding that the claimant recovers an enforceable judgment on a significant constitutional claim. We find no warrant in Supreme Court caselaw for doing so.

nominal damage award appropriate to vindicate rights whose infringement causes no "actual" injury

See Carey, 435 U.S. at 266, 98 S.Ct. at 1054 (procedural due process deprivation is actionable without proof of injury because the right to procedural due process is “absolute,” and “because of the importance to organized society that procedural due process be observed.”); see also Stachu-ra, 477 U.S. at 380 n. 11, 106 S.Ct. at 2544 n. 11 (nominal damage award appropriate to vindicate rights whose infringement causes no “actual” injury).

procedural due process deprivation is actionable without proof of injury because the right to procedural due process is "absolute," and "because of the importance to organized society that procedural due process be observed."


Context: But the submission of the report did not change the legal situation, because the FMCSA maintained dis cretion over whether or not to begin issuing permits to Mexico-domiciled carriers." In the few cases in which the United States, Supreme Court has addressed informational reports, it has found that those, informational .reports are not final agency actions.

finding that the Secretary of Defense's base-closure recommendation was not a final agency action, because the report " 'carried] no direct consequences' for base closings" (citing Franklin, 505 U.S. at 798, 112 S.Ct. 2767

Id.; see also Dalton v. Specter, 511 U.S. 462, 469, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994) (finding that the Secretary of Defense’s base-closure recommendation was not a final agency action, because the report “ ‘carried] no direct consequences’ for base closings” (citing Franklin, 505 U.S. at 798, 112 S.Ct. 2767)).

In Franklin v. Massachusetts, 505 U.S. 788, 798, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992), the Supreme, Court held that the Secretary of Commerce’s census-data report (which was submitted to the President , for later use in reapportionment) was not a final agency action, because the Secretary’s., report “carrie[d] no direct consequences for the reapportionment, [and] it serve[d] more like a tentative recommendation than a final and binding determination.”


Context: But as Srivastava acknowledges it was Bram and not Newman who executed the probable cause affidavit. In addition, Newman's interviewing of Bram is the sort of preliminary pre-prosecution activity that directly relates to the advocate's role and warrants absolute immunity.

absolute immunity shields prosecutor's effort to control presentation of witness testimony by delaying police interrogation of that witness on unrelated matter until after testimony

Imbler, 424 U.S. at 430 n.32, 96 S.Ct. 984 (absolute immunity shields prosecutor’s effort to control presentation of witness testimony by delaying police interrogation of that witness on unrelated matter until after testimony); Anderson, 217 F.3d at 476 (absolute immunity shields prosecutor who suggested police hold plaintiff for lineup in order to create more evidence); see also Spiegel v. Rabinovitz, 121 F.3d 251, 257 (7th Cir.1997) (absolute immunity shields prosecutor who willfully submitted incomplete and inadequate assessment of case that provided basis for decision to prosecute); Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir.1986) (absolute immunity shields prosecutor “even if he initiates charges maliciously, unreasonably, without probable cause, or even on the basis of false testimony or evidence.”). We conclude that Newman is absolutely immune from Srivastava’s damages claim.


absolute immunity shields prosecutor "even if he initiates charges maliciously, unreasonably, without probable cause, or even on the basis of false testimony or evidence."


absolute immunity shields prosecutor who suggested police hold plaintiff for lineup in order to create more evidence


Context: P 17 Using similar reasoning, other courts have concluded that expert opinions addressing ultimate issues are excluded when couched as legal conclusions because such beliefs by expert witnesses "tend to blur the separate and distinct responsibilities of the judge, jury, and witness[,]" and create the danger that jurors may turn to the expert for guidance on applicable law rather than the judge.

"The problem with testimony containing a legal conclusion is in conveying the witness' unexpressed, and perhaps erroneous, legal standards to the jury."

Id.; see United States v. Scop, 846 F.2d 135, 140 (2d Cir.1988) (“The problem with testimony containing a legal conclusion is in conveying the witness’ unexpressed, and perhaps erroneous, legal standards to the jury.”) (citation omitted), rev’d in part on reh’g on other ground, 856 F.2d 5 (2d Cir. 1988); see also Hygh v. Jacobs, 961 F.2d 359 (2d Cir.1992) (expert opinion that defendant’s conduct was “deadly force” and “unjustified” was inadmissible because it merely expressed a legal conclusion and told jury what result to reach); Haney v. Mizell Memorial Hospital, 744 F.2d 1467 (11th Cir.1984) (expert not permitted to use the word “negligent” but instead was permitted to opine that defendant’s conduct fell below the standard of care); Strong v. E.I. DuPont de Nemours Co., Inc., 667 F.2d 682 (8th Cir.1981) (expert testimony regarding lack of adequate warnings for product defect claim was properly excluded because the questions were too broad and not phrased in terms of adequately explored legal criteria).

expert opinion that defendant's conduct was "deadly force" and "unjustified" was inadmissible because it merely expressed a legal conclusion and told jury what result to reach


expert not permitted to use the word "negligent" but instead was permitted to opine that defendant's conduct fell below the standard of care


expert testimony regarding lack of adequate warnings for product defect claim was properly excluded because the questions were too broad and not phrased in terms of adequately explored legal criteria


Context: Within sensible limits set by similarity and dissimilarity to the facts of a case, a prosecutor's appropriate rhetorical devices may include film allusions and comparisons or be otherwise theatrical.

comparing defendant to "man behind the curtain" in The Wizard of Oz did not exceed bounds of legitimate rhetoric when responsive to defense argument questioning thoroughness of police investigation of murder

See State v. Anthony, 282 Kan. 201, 211, 145 P.3d 1 (2006) (comparing defendant to “man behind the curtain” in The Wizard of Oz did not exceed bounds of legitimate rhetoric when responsive to defense argument questioning thoroughness of police investigation of murder); see also State v. Rodriguez, 269 Kan. 633, 642-44, 8 P.3d 712 (2000) (prosecutor’s comparison of defendant to magician creating “ ‘big puff of smoke’ ” to divert juiy’s attention from acceptable argument); State v. Duke, 256 Kan. 703, 718, 887 P.2d 110 (1994) (prosecutor’s description of defense counsel’s argument as “ ‘smoke and mirrors’ ” not error); but see State v. Greer, No. 89,004, 2003 WL 23018227, at *3-4 (Kan. App. 2003) (unpublished opinion) (prosecutor’s comparison of defendant to Jack Nicholson character in The Shining improper), rev. denied 277 Kan. 926 (2004); accord United States v. Kincannon, 567 F.3d 893, 900 (7th Cir. 2009) (dicta suggesting comparison of defendant to The Godfather s Michael Corleone “would be utterly unmoored from the record”); but see State v. Blanks, 479 N.W.2d 601, 605 (Iowa App. 1991) (error for prosecutor to reference Gorillas in the Mist to illustrate point during closing argument; racial overtones, closeness of movie’s plot to circumstances surrounding alleged crime unfairly prejudicial; “[b]y his allusion, the prosecutor brought before the jurors a myriad of other factors not previously present”).

prosecutor's comparison of defendant to magician creating " 'big puff of smoke' " to divert juiy's attention from acceptable argument


prosecutor's description of defense counsel's argument as " 'smoke and mirrors' " not error


prosecutor's comparison of defendant to Jack Nicholson character in The Shining improper


Context: (Citation omitted.) Although, "where the principal thief is unknown, there is no burden on the state of proving that such thief was not the defendant," where direct and uncontested evidence identifies the defendant as the original thief, the defendant cannot be convicted of theft by receiving. Id.

Cf. Duke v. State, 153 Ga. App. 204, 205 (264 SE2d 721) (1980) (State produced circumstantial evidence from which guilt of either theft by taking or receiving could be inferred).

S eeDyerv. State, 150 Ga. App. 760, 761 (258 SE2d 620) (1979) (State proved conclusively by direct evidence from an accomplice that defendant committed theft by taking the property), overruled on other grounds, Redding v. State, 192 Ga. App. 325 (384 SE2d 910) (1989).


Context: With one exception, plaintiffs' allegations of misrepresentations and omissions in paragraphs 73 and 74 are, in essence, merely conclusory assertions that defendants' statements quoted in paragraphs 18 through 72 of the complaint are false; plaintiffs do little more than assert that the quotations were misrepresentations. Vague and conclusory allegations that the defendant's representations were not true, however, are insufficient for 9(b) purposes.

See Akerman, 751 F.Supp. at 13 (plaintiff must offer more than simple allegations that each quoted passage was a misrepresentation or omission of material fact); Loan, 717 F.Supp. at 967; Robin v. Arthur Young & Co., 915 F.2d 1120, 1127 (7th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1317, 113 L.Ed.2d 250 (1991); Denny v. Barber, 576 F.2d 465, 469-70 (2d Cir.1978); Abrahamson, No. 86-1677; cf. Christidis v. First Pennsylvania Mortgage Trust, 717 F.2d 96, 98 (3d Cir.1983) (assertion of inadequate loan loss reserves deficient where complaint is silent about the method of estimating reserves or the manner in which that method departed from reasonable accounting practices).


Context: There are three requirements for finding a violation of the First Amendment. The speech at issue must be protected speech.

See, e.g., Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (obscenity is not protected by the First Amendment); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (defamation under certain circumstances is not protected by the First Amendment); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (“fighting words” are not protected by the First Amendment); see also R.A.V. v. City of St. Paul, 505 U.S. 377, -382-83, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (“‘[T]he freedom of speech’ referred to by the First Amendment does not include a freedom to disregard these traditional limitations.”); United States v. Alvarez, — U.S. -, 132 S.Ct. 2537, 2543-44, 183 L.Ed.2d 574 (2012) (plurality opinion).

"'[T]he freedom of speech' referred to by the First Amendment does not include a freedom to disregard these traditional limitations."


Context: However, the trial court correctly determined that the judgments were fully satisfied without payment of such interest. Indeed, the generally accepted rule is that interest ceases to accrue on funds deposited by a stakeholder in an interpleader action during the time the funds are on deposit with the court.

statute allowing judgment creditors to receive interest does not apply to a judgment determining the right to funds interpled into court

See Canal Insurance Co. v. Pizer, 183 Ariz. 162, 901 P.2d 1192 (1995)(pre-judgment interest); Williams v. Gilmore, 51 Cal.App.2d 684, 125 P.2d 539 (1942)(post-judgment interest); An-not., Allowance of Interest on Interpleaded or Impleaded Disputed Funds, 15 A.L.R.2d 473 (1951)(noting general view that stakeholder “is not chargeable with interest after the deposit of [disputed] funds into the court”); see also Ritter v. Wysowatcky, 32 Colo.App. 410, 514 P.2d 333 (1973)(statute allowing judgment creditors to receive interest doés not apply to a judgment determining the right to funds interpled into court).

noting general view that stakeholder "is not chargeable with interest after the deposit of [disputed] funds into the court"


Context: In many other contexts as well, this court and others have upheld otherwise arguably defective sentences when they have been voluntarily accepted by the defendant as part of a mutually advantageous agreement with the state.

See, e.g., Jacobs v. State, 522 So.2d 540 (Fla. 3d DCA 1988) (denial of motion to correct allegedly illegal sentences affirmed as part of negotiated plea), review denied, 531 So.2d 1353 (Fla.1988); Preston v. State, 411 So.2d 297, 298-99 (Fla. 3d DCA 1982) (defendant who should have been sentenced as a youthful offender but was placed on probation “waived his right to question the legality of a probation which he has enjoyed and violated”), petition for review denied, 418 So.2d 1280 (Fla.1982); Smith v. State, 345 So.2d 1080, 1082 (Fla. 3d DCA 1977) (sixteen-year-old defendant estopped from challenging probation after violation when she had given a false age and was sentenced as an adult; “[s]he accepted the benefits of probation and had one of the counts against her dropped as part of the plea negotiations”), cert. denied, 353 So.2d 678 (Fla.1977); see also Johnson v. State, 458 So.2d 850, 851 (Fla. 2d DCA 1984) (“Because Johnson was bound by her contract, we affirm the sentence.”); Bell v. State, 453 So.2d 478, 480 (Fla. 2d DCA 1984) (plea bargains are encouraged and defendant “bound by his contract”).

"Because Johnson was bound by her contract, we affirm the sentence."


plea bargains are encouraged and defendant "bound by his contract"


defendant who should have been sentenced as a youthful offender but was placed on probation "waived his right to question the legality of a probation which he has enjoyed and violated"


Context: This circuit has awarded attorney's fees pursuant to Fla. Stat. SS 627.428 in a number of marine insurance contract disputes.

awarding attorney's fees pursuant to Fla. Stat. SS 627.428 where a vessel owner prevailed against his insurers to recover under a marine insurance contract

See Windward Traders, 855 F.2d at 819-20 (awarding attorney’s fees pursuant to Fla. Stat. § 627.428 where a vessel owner prevailed against his insurers to recover under a marine insurance contract); Steel-met, 842 F.2d at 1245 (same); Stuyvesant, 286 F.2d at 604 (awarding attorney’s fees pursuant to Fla. Stat. § 625.08 (now codified as § 627.428) where a vessel charterer prevailed against the vessel owner’s insurers to recover under a marine insurance contract); see also Blasser Bros., 628 F.2d at 386 (rejecting an attorney’s fees award pursuant to Fla. Stat. § 627.428 where the vessel owner failed to follow the statute’s procedures); American E. Dev’t Corp. v. Everglades Marina, Inc., 608 F.2d 123, 125-26 (5th Cir.1979) (rejecting an attorney’s fees award pursuant to Fla. Stat. § 627.428 because the statute did not permit an award of fees when an injured third party beneficiary brought the case).

rejecting an attorney's fees award pursuant to Fla. Stat. SS 627.428 where the vessel owner failed to follow the statute's procedures


rejecting an attorney's fees award pursuant to Fla. Stat. SS 627.428 because the statute did not permit an award of fees when an injured third party beneficiary brought the case


awarding attorney's fees pursuant to Fla. Stat. SS 625.08 (now codified as SS 627.428