Context: All of the Defendants here are potentially liable, yet aside from Pablo, no other Defendant has even a fraction of his assets under attachment in Switzerland.- Moreover, even with respect to Pablo's liability, the Plaintiff seeks to establish liability for a debt, not compel the relinquishment of specific, identifiable property in Switzerland. Indeed, although the Complaint asserts that stolen funds passed through Swiss accounts over which Pablo had control, it does not allege that such funds presently are in those same accounts. Thus, no identifiable bar precludes this Court from rendering appropriate relief to Ms. Madanes while still respecting the integrity of the Swiss action.

See Central States, 600 F.2d at 675 n. 7 (holding that where prior state court had in rem jurisdiction, district court could maintain in person-am jurisdiction and simply deny requests for conflicting in rem relief because “district court is fully capable of preventing inappropriate conversion of the suit to a proceeding truly in rem”); cf. United States v. $3,000,000 Obligation, 810 F.Supp. 116, 117-18 (S.D.N.Y.1993) (collecting cases and explaining that court exercising jurisdiction second does not lose powers to make orders which do not conflict -with authority of first court).

holding that where prior state court had in rem jurisdiction, district court could maintain in person-am jurisdiction and simply deny requests for conflicting in rem relief because "district court is fully capable of preventing inappropriate conversion of the suit to a proceeding truly in rem"


Context: Ultimately, we need not weigh-in on this portion of the district court's opinion because there is no federally protected interest in seeking a state-court judgeship that, under state law (as interpreted by the state supreme court), already has been lawfully filled by gubernatorial appointment.

"The right to become a candidate for state office ... is a right or privilege of state citizenship.... "

See Snowden v. Hughes, 321 U.S. 1, 7, 64 S.Ct. 397, 88 L.Ed. 497 (1944) (“The right to become a candidate for state office ... is a right or privilege of state citizenship.... ”); Newman v. Voinovich, 986 F.2d 159, 161, 163 (6th Cir.1993) (affirming dismissal under Rule 12(b)(6) of a suit challenging Ohio’s judicial-appointment procedures under the First and Fourteenth Amendments); Burks v. Perk, 470 F.2d 163, 165 (6th Cir.1972) (“Public office is not property within the meaning of the Fourteenth Amendment.”); see also Wilson v. Birnberg, 667 F.3d 591, 598 (5th Cir.2012) (“[Tjhere is no constitutional right to run for state office protected by the Fourteenth Amendment.” (citation and internal quotation marks omitted)); Velez v. Levy, 401 F.3d 75, 86-87 (2d Cir.2005) (“[Plaintiff] lacks a constitutionally cognizable property interest in her employment as an elected official.”).

"[Plaintiff] lacks a constitutionally cognizable property interest in her employment as an elected official."


"Public office is not property within the meaning of the Fourteenth Amendment."


Context: But where the uncontradicted evidence in the record "shows completion only of the greater offense, it is unnecessary for the trial court to charge on the lesser offense." Accordingly, when a defendant admits or does not dispute the facts authorizing his conviction for the greater offense, Georgia courts have affirmed the trial court's refusal to charge on the lesser included offense.

emphasizing importance of defendants' admissions to holdings in Sims and Hambrick

See also Edwards, 264 Ga. at 132-133 (emphasizing importance of defendants’ admissions to holdings in Sims and Hambrick).

See Sims v. State, 197 Ga. App. 214, 217 (5) (398 SE2d 244) (1990) (trial court did not err in refusing to instruct jury on robbery and theft by taking as lesser offenses to charged offense of armed robbery in case where defendant admitted to having a shotgun during the incident in question); Hambrick v. State, 174 Ga. App. 444, 447 (2) (330 SE2d 383) (1985) (trial court did not err in refusing to instruct jury on theft by taking as lesser offense to charged offenses of armed robbery and burglary in case where defendant did not dispute using a knife to rob the victim but challenged whether it was an “offensive weapon” under the armed robbery statute).


trial court did not err in refusing to instruct jury on theft by taking as lesser offense to charged offenses of armed robbery and burglary in case where defendant did not dispute using a knife to rob the victim but challenged whether it was an "offensive weapon" under the armed robbery statute


Context: Notably in relation to the question before us, the takings claims approved in these cases were not confined to instances in which the Government took outright physical possession of the property involved. A temporary takings claim could be maintained as well when government action occurring outside the property gave rise to "a direct and immediate interference with the enjoyment and use of the land."

United States v. Causby, 328 U.S. 256, 266, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946) (frequent overflights from a nearby airport resulted in a taking, for the flights deprived the property owner of the customary use of his property as a chicken farm); cf. United States v. Dickinson, 331 U.S. 745, 751, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947) (flooding of claimant’s land was a taking even though claimant successfully “reclaimed most of his land which the Government originally took by flooding”).

flooding of claimant's land was a taking even though claimant successfully "reclaimed most of his land which the Government originally took by flooding"


Context: This left the government and the court in the awkward position of having to sift through classified documents from the intelligence community to try to determine if any contained exculpatory information helpful to Seda's defense.

noting the difficult predicament of "the defendants and their counsel, who are in the best position to know whether information would be helpful to their defense, [but] are disadvantaged by not being permitted to see the information and ... assist the court in its assessment of the information's helpfulness"

United States v. Amawi, 695 F.3d 457, 471 (6th Cir.2012) (“Rather than neutrally deciding disputes with an open record based on the adversarial process, [the court] must place [itself] in the shoes of the defense counsel, the very ones who cannot see the classified record, and act with a view to their interests.”); see also United States v. Mejia, 448 F.3d 436, 458 (D.C.Cir.2006) (noting the difficult predicament of “the defendants and their counsel, who are in the best position to know whether information would be helpful to their defense, [but] are disadvantaged by not being permitted to see the information and ... assist the court in its assessment of the information’s helpfulness”).

"Rather than neutrally deciding disputes with an open record based on the adversarial process, [the court] must place [itself] in the shoes of the defense counsel, the very ones who cannot see the classified record, and act with a view to their interests."


Context: Dr. Evers's other designated liberty interest requires slightly closer inspection. The Due Process Clause protects against deprivation, without notice and hearing, of one's liberty interest in his good name, reputation, honor, and integrity.

"[Djefamation that is incident to the government's refusal to reemploy an individual can implicate a liberty interest."

See Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (“[C]ertainly where the State attaches ‘a badge of infamy’ to the citizen, due process comes into play.”); see also Wroblewski v. City of Washburn, 965 F.2d 452, 456 (7th Cir.1992) (“[Djefamation that is incident to the government’s refusal to reemploy an individual can implicate a liberty interest.”).

"[C]ertainly where the State attaches 'a badge of infamy' to the citizen, due process comes into play."


Context: In an effort to avoid the conclusive effect of the award order, Starbucks contends that the award order was not a final judgment because it was "administratively entered." This argument misplaces the inquiry this Court is required to make. An order by the commission awarding benefits to a claimant by agreement of the parties is a final determination of the matters which were actually, or might have been, litigated in that suit.

"When the parties are before a court of competent jurisdiction and a separation agreement is approved, confirmed and decreed upon, its validity is by that judgment rendered res judicata between the parties."

See Brock, 59 Va.App. at 47, 716 S.E.2d at 488 (“ ‘[T]he relationship of the [cjommission to an award is that of a court to a judgment during the term at which it is rendered.’ ” (quoting K & L Trucking Co., 1 Va.App. at 219, 337 S.E.2d 299 at 302)); see also Wallihan v. Hughes, 196 Va. 117, 130, 82 S.E.2d 553, 561 (1954) (“When the parties are before a court of competent jurisdiction and a separation agreement is approved, confirmed and decreed upon, its validity is by that judgment rendered res judicata between the parties.”); Martin v. Martin, 167 Va. 206, 211, 188 S.E. 148, 150 (1936) (“The judgment of a court of competent jurisdiction, dismissing a suit agreed, on the ground that it has been agreed by the parties, is a final determination of the matters which were actually, or might have been litigated in that suit, as against said parties and all claiming under them.”).

" '[T]he relationship of the [cjommission to an award is that of a court to a judgment during the term at which it is rendered.' " (quoting K & L Trucking Co., 1 Va.App. at 219, 337 S.E.2d 299 at 302


"The judgment of a court of competent jurisdiction, dismissing a suit agreed, on the ground that it has been agreed by the parties, is a final determination of the matters which were actually, or might have been litigated in that suit, as against said parties and all claiming under them."


Context: . If the record were unclear, summary judgment for a movant in USF & G's position would nonetheless be improper because the litigant's true identity is certainly a "material fact" under our summary judgment jurisprudence.

See Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005) ("In a summary judgment motion brought under Texas Rule of Civil Procedure 166a(c), the moving party has the burden of showing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.”); see also City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005) (instructing that, to review a trial court’s grant of summary judgment, we "examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion”).

instructing that, to review a trial court's grant of summary judgment, we "examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion"


Context: Indeed, Spencer expressly requested that the bankruptcy court set aside that state court judgment, which is exactly what Rooker-Feldman says lower federal courts cannot do. Cf. Taylor v. Federal Nat. Mortg.

claims were not independent of state court foreclosure suit for Rooker-Feldman purposes where plaintiff alleged "that the Defendants had committed a fraud upon the court by instituting a wrongful foreclosure action against her"

Ass’n, 374 F.3d 529, 533-34 (7th Cir. 2004) (claims were not independent of state court foreclosure suit for Rooker-Feldman purposes where plaintiff alleged “that the Defendants had committed a fraud upon the court by instituting a wrongful foreclosure action against her”); see also Mains v. Citibank N.A., No. 16-1985, 852 F.3d 669, 679, 2017 WL 1160901 (7th Cir. Mar. 29, 2017) (affirming dismissal of similar challenges to foreclosure judgment on Rooker-Feldman grounds); Schmid v. Bank of Am., N.A., 498 B.R. 221, 224-25 (W.D. Wis. 2013) (dismissing an action challenging defendant’s claim that it owned a mortgage and claiming fraud against defendant based on Rooker-Feldman, since the alleged injury was the state court foreclosure judgment being asserted against the plaintiff).


dismissing an action challenging defendant's claim that it owned a mortgage and claiming fraud against defendant based on Rooker-Feldman, since the alleged injury was the state court foreclosure judgment being asserted against the plaintiff


Context: We begin with the undisputed proposition that the decision to settle is the client's to make, not the attorney's.

"the utter want of power of an attorney, by virtue of his general retainer only, to compromise his client's claim, cannot, we think, be successfully disputed."

United States v. Beebe, 180 U.S. 343, 352, 21 S.Ct. 371, 374, 45 L.Ed. 563 (1901) (“the utter want of power of an attorney, by virtue of his general retainer only, to compromise his client’s claim, cannot, we think, be successfully disputed.”); Barthelmas v. Fidelity-Phenix Fire Ins. Co., 103 F.2d 329, 331 (2d Cir.1939) (same); see Thomsen v. Terrace Navigation Corp., 490 F.2d 88, 89 (2d Cir.1974) (only “exigent circumstances” might empower an attorney to settle case without client’s consent); Model Code of Professional Responsibility EC 7-7 (1980) (“in civil cases, it is for the client to decide whether he will accept a settlement offer”).

only "exigent circumstances" might empower an attorney to settle case without client's consent


Context: Authority from other jurisdictions also supports the basic proposition that ignorance of the law should not constitute excusable neglect for inmates or criminal defendants under K.S.A. 2015 Supp. 22-3210(e)(2).

district court abused its discretion in finding excusable neglect based upon defense counsel's erroneous belief that he had 30 days in which to file notice of criminal appeal

See, e.g., Klein v. Neal, 45 F.3d 1395, 1397 n.2 (10th Cir. 1995) (even though petitioner in postconviction collateral attack was pro se inmate, court held “ignorance of the statute’s existence insufficient to constitute excusable neglect” to extend time limit on untimely filed petition); United States v. Gibson, 832 F. Supp. 324, 327 (D. Kan. 1993) (finding late filing of pro se criminal appeal not due to excusable neglect because “ignorance of the law or unfamiliarity with the federal rules will almost invariably fall short of excusable neglect”); see also United States v. Madrid, 633 F.3d 1222, 1227-28 (10th Cir. 2011) (district court abused its discretion in finding excusable neglect based upon defense counsel’s erroneous belief that he had 30 days in which to file notice of criminal appeal); State v. Murray, 162 N.J. 240, 246, 744 A.2d 131 (2000) (postconviction relief petition filed after 5-year time limit was not supported by excusable neglect when criminal defendant asserted he lacked sophistication in the law).

even though petitioner in postconviction collateral attack was pro se inmate, court held "ignorance of the statute's existence insufficient to constitute excusable neglect" to extend time limit on untimely filed petition


postconviction relief petition filed after 5-year time limit was not supported by excusable neglect when criminal defendant asserted he lacked sophistication in the law


finding late filing of pro se criminal appeal not due to excusable neglect because "ignorance of the law or unfamiliarity with the federal rules will almost invariably fall short of excusable neglect"


Context: Although there were no exigent circumstances excusing the failure to obtain a warrant, a warrant was not constitutionally required.

execution of searches subject to "general strictures against unreasonable searches"

See Commonwealth v. Garner, 423 Mass. 735, 738 (1996) (execution of searches subject to “general strictures against unreasonable searches”); Commonwealth v. Williams, 439 Mass. 678, 686 (2003) (“[L]aw enforcement personnel are authorized to use reasonable force, and no more, to execute warrants and carry out lawful orders”).

"the legitimate penological purpose of strip searches -- to discover hidden weapons and contraband -- justifies using force necessary to induce compliance by difficult inmates"

See also Michenfelder v. Sumner, 860 F.2d 328, 336 (9th Cir. 1988) (“the legitimate penological purpose of strip searches — to discover hidden weapons and contraband — justifies using force necessary to induce compliance by difficult inmates”); Craddock v. Commonwealth, 40 Va. App. 539, 550-551 (2003) (removal of drugs from resisting arrestee’s anal cavity — without having to pull on bag — did not render strip search unreasonable).


removal of drugs from resisting arrestee's anal cavity -- without having to pull on bag -- did not render strip search unreasonable


"[L]aw enforcement personnel are authorized to use reasonable force, and no more, to execute warrants and carry out lawful orders"


Context: This court looked exclusively to Louisiana law to determine that the officers were without authority to file the petition. Throughout the many revisions to federal bankruptcy law, courts continue to resolve authority-to-file disputes according to state law.

as a matter of Idaho law, partner who filed for Chapter 11 protection lacks "authority as a general partner to bind the partnership to an involuntary bankruptcy petition"

See In re Quarter Moon Livestock Co., 116 B.R. 775, 778 (Bankr.D.Idaho 1990) (“the authority to file a bankruptcy petition must be found in the instruments of the corporation and applicable state law”) (citing In re Crescent Beach Inn, Inc., 22 B.R. 155 (Bankr.D.Me. 1982)); In re Bel-Aire Invest., Inc., 97 B.R. 88, 89-90 (Bankr.M.D.Fla.1989) (“It is well established that since the Bankruptcy code itself does not establish the requisites for the initiation of a voluntary corporate bankruptcy case, the validity of all the individuals acting on behalf of the corporation must be determined with reference to the laws of the State in which the corporation was chartered.”; recognizing that application of state law would render corporation unable to file a voluntary petition) (citing In re Autumn Press, Inc., 20 B.R. 60 (Bankr.D.Mass.1982); Taylor v. Markus Enterprises, Inc. (In re Markus Enterprises, Inc.), 91 B.R. 459, 460 (M.D.Tenn. 1988) (“Whether the debtor, in light of its dissolution, retains the capacity to file a petition under the Bankruptcy Code, Chapter 11, is a matter of the law of [Tennessee].”); see also In re Sunset Developers, 69 B.R. at 712 (as a matter of Idaho law, partner who filed for Chapter 11 protection lacks “authority as a general partner to bind the partnership to an involuntary bankruptcy petition”).

"the authority to file a bankruptcy petition must be found in the instruments of the corporation and applicable state law"


"Whether the debtor, in light of its dissolution, retains the capacity to file a petition under the Bankruptcy Code, Chapter 11, is a matter of the law of [Tennessee]."


Context: It is undisputed that the evidence is sufficient to support the conviction of aggravated battery on a law enforcement officer. We also conclude that the information sufficiently pled the necessary elements of aggravated battery on a law enforcement officer to put Jamerson on notice that the jury could be instructed on, and he could be convicted of, aggravated battery on a law enforcement officer, which is most certainly why neither he nor his attorney objected to this lesser included offense being included for the jury's consideration.

finding that the bite Studnicka, who had HIV, inflicted on a correctional officer who, as a result, was required to seek medical treatment to combat the serious possibility of infection with HIV, including a number of shots and daily "cocktails" or medication for a period of six months, which made the officer extremely ill, plus the traumatic effect while awaiting the results of the HIV tests "fall between the level of serious bodily injury and permanent or life-threatening bodily injury"

See State v. Williams, 9 So.3d 658, 659 (Fla. 4th DCA 2009) (concluding that biting the victim and causing the need for emergency medical attention was sufficient to establish requisite violence for imposing an enhanced sentence for felony battery); see also United States v. Studnicka, 450 F.Supp.2d 680, 682 (E.D.Tex.2006) (finding that the bite Studnicka, who had HIV, inflicted on a correctional officer who, as a result, was required to seek medical treatment to combat the serious possibility of infection with HIV, including a number of shots and daily “cocktails” or medication for a period of six months, which made the officer extremely ill, plus the traumatic effect while awaiting the results of the HIV tests “fall between the level of serious bodily injury and permanent or life-threatening bodily injury”).


Context: Often times in this setting, we were simply restating legal principles that the parties were not contesting in the case. When a legal principle is embraced by the parties by agreement and is not contested on appeal, the court's subsequent recitation of the legal principle is not a holding in the case that was a product of an adversary proceeding.

See Berger v. Gen. United Grp., Inc., 268 N.W.2d 630, 635 (Iowa 1978) (holding that because plaintiffs assumed Delaware law was properly pled and proven by defendants, we would consider Delaware law, but stressed that this case was not precedent for ignoring our rules of pleading and proof on foreign law); see also United States v. Hemingway, 734 F.3d 323, 335 (4th Cir. 2013) (finding a prior case to have no precedential value on a question because the issue was not contested in the earlier case); Goldberger v. Integrated Res., Inc., 209 F.3d 43, 49 (2d Cir. 2000) (earlier case was not precedent because “that issue was neither contested by the parties, nor addressed by the panel”); Fulton Found. v. Wis. Dep’t of Taxation, 13 Wis.2d 1, 108 N.W.2d 312, 316-17 (1961) (holding previous case when no one challenged the issue could not be precedent on the issue); Silver Lake Sanitary Dist. v. Wis. Dep’t of Nat. Res., 232 Wis.2d 217, 607 N.W.2d 50, 54 (Wis. Ct. App. 1999) (“It is blackletter law that an opinion does not establish binding precedent for an issue, if that issue was neither contested nor decided.”).


earlier case was not precedent because "that issue was neither contested by the parties, nor addressed by the panel"


holding previous case when no one challenged the issue could not be precedent on the issue


"It is blackletter law that an opinion does not establish binding precedent for an issue, if that issue was neither contested nor decided."


Context: The court need not go through a detailed summary of Dierker's assertions, as he presents no additional theories having any legal merit. Particularly fatal to his position is that all of his arguments fail to address one important point: that he too was convicted, with finality on direct appeal of a crime involving willful dishonesty and fraud.

See Dierker, 417 Fed.Appx. at 519 (“Ample evidence and testimony indicated, however, that Dierker did knowingly join in the conspiracy to defraud investors.”); see also Rice, 113 Fed.Appx. at 123 (dishonesty exclusion satisfied where the insured willfully engaged in civil conspiracy to defraud). This alone means he is subject to the dishonesty exclusion in Great American’s policy.

"Ample evidence and testimony indicated, however, that Dierker did knowingly join in the conspiracy to defraud investors."


Context: P 33. If Gardner created such a bright-line limitation, we conclude it was wrongly decided. The cases Gardner cites as "by their very terms . . . limited to cases involving gifted or inherited property," id. at 236 & n.l, do not in fact contain such limiting language.

See Trattles, 126 Wis. 2d at 225 ("The transfer of separately owned property into joint tenancy changes the character of the ownership interest in the entire property into marital property which is subject to division."); Fowler, 158 Wis. 2d at 518 (quoting Trattles).

See also Bonnell v. Bonnell, 117 Wis. 2d 241, 245, 344 N.W.2d 123 (1984) ("We have held in several cases that a spouse can transfer into the marital estate property which would otherwise be retained as the spouse's separate property.").


Context: Based on this legal framework, "[m]any federal courts have held that ... breach of contract or attorney malpractice claims properly belong in state court, even where the underlying case involved claims arising under federal law."

finding that "Plaintiffs legal malpractice claim stemming from representation in a prior federal suit does not raise substantial questions of federal law"

Walker v. Dwoskin, Civ. No. 3:09cv4, 2009 WL 366387, *2 (W.D.Va. Feb. 12, 2009) (remanding malpractice action based on underlying Title VII claim for lack of subject matter jurisdiction); see also Warrior Sports, Inc. v. Dickinson Wright, PLLC, 666 F.Supp.2d 749, 753 (E.D.Mich.2009) (finding that “Plaintiffs legal malpractice claim stemming from representation in a prior federal suit does not raise substantial questions of federal law”); Higbee v. Malleris, 470 F.Supp.2d 845, 851 (N.D.Ill.2007) (“There is, simply put, a plethora of putative attorney and/or professional malpractice cases concerning underlying federal litigation, in which cases have been remanded to state court for adjudication or dismissed for lack of federal subject matter jurisdiction.”) (compiling cases) (remanding malpractice action based on representation in underlying Title VII action for lack of subject matter jurisdiction).


Context: P 30 Because the plain language demonstrates that resisting arrest is a victim-directed crime, when a defendant has resisted more than one person, the individual can be charged with and convicted of more than one count of resisting arrest -- one for each person that the individual has committed criminal conduct against -- without running afoul of the Double Jeopardy Clause.

"Where Congress intended ... to impose multiple punishments, imposition of such sentences does not violate the Constitution."

See Albernaz, 450 U.S. at 344, 101 S.Ct. 1137 (“Where Congress intended ... to impose multiple punishments, imposition of such sentences does not violate the Constitution.”); see also State v. Burdick, 211 Ariz. 583, 585-86 ¶¶ 5-10, 125 P.3d 1039, 1041-42 (App.2005) (“[W]here crimes against persons are involved we believe a separate interest of society has been invaded with each victim and that, therefore, where two persons are assaulted, there are two separate offenses.”); State v. Riley, 196 Ariz. 40, 45-6 ¶¶ 17-19, 992 P.2d 1135, 1140-41 (App.1999) (holding the defendant properly convicted of multiple counts of armed robbery against bank employees even though the defendant robbed only the bank).

"[W]here crimes against persons are involved we believe a separate interest of society has been invaded with each victim and that, therefore, where two persons are assaulted, there are two separate offenses."


holding the defendant properly convicted of multiple counts of armed robbery against bank employees even though the defendant robbed only the bank


Context: 128 It does not appear that the district court intended to respond substantively to the jury's question. Rather, the court sought to refer the jury back to the instructions because the jury's second question "must be decided without my help." However, it is not the court's intention that controls the propriety of a supplemental instruction, but its resulting effect upon the jury.

See Mondestin, 535 Fed.Appx. at 824 (explaining that a contradictory supplemental instruction is improper because, inter alia, "it has the potential to confuse the jurors, leav ing them uncertain of which standard to apply"); see also United States v. Robinson, 86 Fed.Appx. 820, 823 (6th Cir.2003) (considering whether a supplemental instruction caused the jury to be confused or misled).


Context: In the present proceeding, Futura seeks to hold the Commonwealth accountable for the existing MD judgment as an alter ego of CDC. Like piercing the corporate veil, an alter ego claim presents a substantive theory seeking to establish liability on the part of a new party not otherwise liable.

holding "that federal enforcement jurisdiction does not reach alter ego claims unless sufficiently intertwined with the merits of the underlying action, as they involve "different legal theories"

See also Sandlin, 972 F.2d at 1217-18 (holding "that federal enforcement jurisdiction does not reach alter ego claims unless sufficiently intertwined with the merits of the underlying action, as they involve “different legal theories”).

describing alter ego theory as "a substantive theory for imposing liability upon entities that would, on first blush, not be thought liable" and as requiring "a subsequent and distinct inquiry"

See Futura II, 144 F.3d at 12 (describing alter ego theory as “a substantive theory for imposing liability upon entities that would, on first blush, not be thought liable” and as requiring “a subsequent and distinct inquiry”).


Context: Moreover, convenience to the Employee does not qualify as a valid excuse. The explanation that he saved time or found it easier to apply the staple without the gloves does not qualify as a plausible explanation.

stating that where an employee considers "his own comfort and convenience exclusively ... [t]his ... tend[s] to sustain the view that his misconduct was wil[l]ful"

See Gart, 125 S.W.2d at 141 (stating that where an employee considers “his own comfort and convenience exclusively ... [t]his ... tend[s] to sustain the view that his misconduct was wil[l]ful”); cf. Auto Lite Battery Corp. v. Indus. Accident Comm’n, 77 Cal.App.2d 629, 176 P.2d 62, 63-64 (Cal.Dist.Ct.App.1947) (affirming the Commission’s decision reducing an award of benefits where the employee violated a rule by transporting materials using a vehicle rather than carrying them by hand); Larson’s § 35.04 (“[A]fter all, most safety rules and safety devices do entail some inconvenience, discomfort, or loss of speed as the price of increased safety of operation.”). Similarly, in light of the Employer’s policy of immediately replacing damaged gloves at no cost or penalty to the Employee, the Employee’s explanation that he removed his gloves to prevent possible damage is likewise invalid.

affirming the Commission's decision reducing an award of benefits where the employee violated a rule by transporting materials using a vehicle rather than carrying them by hand


Context: We conclude that the district court did not commit any procedural error in sentencing McNeely, and we further conclude that the court did not impose an unreasonable sentence.

below-Guidelines-range sentence was not unreasonable where record reflected that district court made individualized assessment based on facts presented and specifically addressed defendant's proffered information in its consideration of sentencing factors

See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (in reviewing sentence for reasonableness, this court first ensures district court committed no significant procedural error, such as improperly calculating Guidelines range, treating Guidelines as mandatory, failing to consider § 3553(a) factors, sentencing based on clearly erroneous facts, or failing to adequately explain chosen sentence, then considers substantive reasonableness of sentence under abuse-of-discretion standard); see also United States v. Stults, 575 F.3d 834, 849 (8th Cir.2009) (below-Guidelines-range sentence was not unreasonable where record reflected that district court made individualized assessment based on facts presented and specifically addressed defendant’s proffered information in its consideration of sentencing factors), cert. denied — U.S. -, 130 S.Ct. 1309, — L.Ed.2d -(2010); cf. United States v. Zastrow, 534 F.3d 854, 856 (8th Cir.2008) (within-Guidelines-range sentence of 240 months was not unreasonable where record indicated that court considered defendant’s age of 73 and medical conditions of high blood pressure and arthritis).

in reviewing sentence for reasonableness, this court first ensures district court committed no significant procedural error, such as improperly calculating Guidelines range, treating Guidelines as mandatory, failing to consider SS 3553(a


within-Guidelines-range sentence of 240 months was not unreasonable where record indicated that court considered defendant's age of 73 and medical conditions of high blood pressure and arthritis


Context: Doctors and pharmacies, among others, have sued health insurers for refusing to let them bill patients directly amounts in addition to those the doctors and pharmacies receive from the insurers. Courts have consistently held that this "ban on balance billing" does not unreasonably restrain trade; the only restraint is the one that flows inevitably and properly from the choice by the insurer to buy services and products of a particular type from doctors and pharmacies, i.e., fully-paid services and products.

auto insurers may require repair shops to accept payment at the "prevailing competitive rate" as full reimbursement for their services

Medical Arts, 675 F.2d 502 (Blue Shield may require pharmacies to accept Blue Shield payments as full reimbursement for drugs sold to Blue Shield subscribers); Kartell v. Blue Cross of Massachusetts, Inc., 749 F.2d 922 (1st Cir.1984) (Blue Shield may require doctors to accept Blue Shield payments as full reimbursement for services sold to Blue Shield subscribers; i.e., Blue Shield may ban balance billing); Travelers Insurance Co. v. Blue Cross of Western Pennsylvania, 481 F.2d 80 (3d Cir.), cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973) (Blue Cross may require hospitals to accept Blue Cross payments as full reimbursement for services rendered to Blue Cross subscribers); see Quality Auto Body, Inc. v. Allstate Insurance Co., 660 F.2d 1195 (7th Cir.1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1717, 72 L.Ed.2d 138 (1982) (auto insurers may require repair shops to accept payment at the “prevailing competitive rate” as full reimbursement for their services).


Blue Cross may require hospitals to accept Blue Cross payments as full reimbursement for services rendered to Blue Cross subscribers


Context: Although one year is not an insignificant period of time, we are not persuaded that it is so long as to bar the newspapers from intervening. Indeed, "[n]umerous courts have allowed third parties to intervene in cases . . . involving delays measured in years rather than weeks."

Public Citizen v. Liggett Group, Inc., supra, 858 F.2d 785; see Equal Employment Opportunity Commission v. National Children’s Center, Inc., 146 F.3d 1042, 1047 (D.C. Cir. 1998) (noting “growing consensus among [federal] courts of appeals that intervention to challenge confidentiality orders may take place long after a case has been terminated” [internal quotation marks omitted]); San Jose Mercury News, Inc. v. United States District Court, 187 F.3d 1096, 1101 (9th Cir. 1999) (noting that “delays measured in years have been tolerated [when a prospective] intervenor is pressing the public’s right of access to judicial records”); Pansy v. Stroudsburg, 23 F.3d 772, 779 (3d Cir. 1994) (“a district court may properly consider a motion to intervene permissively for the limited purpose of modifying a protective order even after the underlying dispute between the parties has long been settled” [internal quotation marks omitted]); see also Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 471, 476 (9th Cir. 1992) (trial court properly permitted intervention for purpose of seeking modification to protective orders approximately two years after underlying case had been settled and dismissed), cert. denied sub nom. International Ins. Co. v. Bridgestone/Firestone, Inc., 506 U.S. 868, 113 S. Ct. 197, 121 L. Ed. 2d 140 (1992); United Nuclear Corp. v. Cranford Ins. Co., supra, 905 F.2d 1427 (allowing intervention three years after settlement of case because intervention was solely for purpose of challenging protective order); Mokhiber v. Davis, 537 A.2d 1100, 1105 (D.C. App. 1988) (reversing denial of intervention when intervenor sought to challenge protective orders barring public access to court documents despite four year delay between settlement of underlying action and motion to intervene, and even though intervenor became aware of action one year before seeking intervention).

noting that "delays measured in years have been tolerated [when a prospective] intervenor is pressing the public's right of access to judicial records"


allowing intervention three years after settlement of case because intervention was solely for purpose of challenging protective order


reversing denial of intervention when intervenor sought to challenge protective orders barring public access to court documents despite four year delay between settlement of underlying action and motion to intervene, and even though intervenor became aware of action one year before seeking intervention


Context: Yet the Supreme Court and this Court have held that an employee may sue for breach of a collective bargaining agreement without the union.

See Groves v. Ring Screw Works, 498 U.S. 168, 173, 111 S.Ct. 498, 112 L.Ed.2d 508 (1990) (“Section 301 contemplates suits by and against individual employees as well as between unions and employers; and contrary to earlier indications § 301 suits encompass those seeking to vindicate uniquely personal rights of employees such as wages”) (quotation omitted); Smith v. Evening News Ass’n, 371 U.S. 195, 200, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962) (holding that an employee may sue for breach of a collective bargaining agreement without the union); Anderson v. AT&T Corp., 147 F.3d 467, 474 (6th Cir.1998) (same); see also Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Hoosier Cardinal Corp., 383 U.S. 696, 699, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966).

Cf. Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) (an employee may be contractually bound to involve the union).


Context: . Other circuits have accepted the target analysis, particularly where a fraud is perpetrated on a regulator for the purpose of defrauding a .protected class.

See, e.g., Rodriguez v. McKinney, 156 F.R.D. 112 (E.D.Pa.1994) (certifying class of vocational school students where defendant misrepresented the ability of the students to benefit from the program to the Department of Education); see also United States v. Cavin, 39 F.3d 1299 (5th Cir.1994) (defendant defrauded Alliance policyholders by misrepresentations to the Commissioner of Insurance); Learjet Corp. v. Spenlirihauer, 901 F.2d 198 (1st Cir.1990) (buyer of airplane defrauded by aircraft manufacturer’s misrepresentations to the Federal Aviation Administration); United States v. Olatunji,, 872 F.2d 1161, 1167 (3rd Cir.1989) (Department of Education defrauded by defendants’ false statements to the Immigration and Naturalization Services).


buyer of airplane defrauded by aircraft manufacturer's misrepresentations to the Federal Aviation Administration


Department of Education defrauded by defendants' false statements to the Immigration and Naturalization Services


Context: Again, this evidence suggests that mistreatment is directed foremost at political prisoners. Moreover, to the extent it supports Sevoian's claim, we think that the Board could reasonably give the non-governmental sources of evidence offered by Sevoian less weight than the State Department report -- which, as we have said, is consistent with the Board's ultimate decision.

giving strong evidentiary weight to State Department report, describing it as "the most appropriate and perhaps the best resource" on country conditions

Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir.1995) (giving strong evidentiary weight to State Department report, describing it as “the most appropriate and perhaps the best resource” on country conditions).

giving weight to private human rights group's report on country conditions in China where such reports were "consistent with the State Department report," but stating: "We do not suggest that relief to an alien should be granted based solely on such reports!,] particularly where they conflict with findings of the Department of State."

Cf. Chang v. INS, 119 F.3d 1055, 1064 (3d Cir.1997) (giving weight to private human rights group’s report on country conditions in China where such reports were “consistent with the State Department report,” but stating: “We do not suggest that relief to an alien should be granted based solely on such reports!,] particularly where they conflict with findings of the Department of State.”).


Context: Moreover, Allen even set up the ground rules for his confession. We therefore conclude that Allen's waiver of his right to counsel was valid because it was knowing and intelligent, voluntarily given, and initiated by Allen, and therefore the district court did not err in denying Allen's motion to suppress the confession.

See Holman v. Kemna, 212 F.3d 413, 418-21 (8th Cir.) (holding ultimately that there was no Edwards violation and that the waiver of counsel was valid because Holman did not confess until the next day and the totality of the circumstances showed that the confession was voluntary and knowing and intelligent), cert. denied, — U.S. -, 121 S.Ct. 587, 148 L.Ed.2d 502 (2000).

holding admissible suspect's statement to police after being informed that he had been identified in a lineup, which the court assumed without deciding was interrogation for purposes of the appeal, because the statements were voluntarily made without any coercion and came after the suspect was given and validly waived his Miranda rights

See also United States v. Williams, 136 F.3d 547, 552-53 (8th Cir.1998) (holding admissible suspect’s statement to police after being informed that he had been identified in a lineup, which the court assumed without deciding was interrogation for purposes of the appeal, because the statements were voluntarily made without any coercion and came after the suspect was given and validly waived his Miranda rights), cert. denied, 526 U.S. 1003, 119 S.Ct. 1139, 143 L.Ed.2d 207 (1999).


Context: Doe was responsible to work her case plan and comply with the terms of her probation. She failed to do so. While the evidence is conflicting, there is substantial and competent evidence in the record supporting the magistrate court's finding that Doe failed to follow her case plan.

concluding that while the case was not as "clear-cut" as most parental termination cases, there was substantial, competent evidence in the record to support terminating parental rights where the parents had failed to comply with the magistrate's orders to complete their case plan

See Doe, 147 Idaho at 356, 209 P.3d at 653 (concluding that while the case was not as “clear-cut” as most parental termination cases, there was substantial, competent evidence in the record to support terminating parental rights where the parents had failed to comply with the magistrate’s orders to complete their case plan); see also State, Department of Health and Welfare v. Doe, 145 Idaho 662, 665, 182 P.3d 1196, 1199 (2008) (recognizing that while evidence was conflicting, there was substantial and competent evidence to support magistrate’s findings that Doe failed to comply with the case plan where she had seventeen months to do so and only began some compliance in the last six months by following the terms of her probation); Doe, 144 Idaho at 314, 160 P.3d at 753 (concluding that there was substantial and competent evidence upon which to base a termination where Doe did not complete three of the tasks in her case plan and where testimony indicated that while she did what she could in order to complete the case plan, she did not gain what she was supposed to from the completed tasks).

recognizing that while evidence was conflicting, there was substantial and competent evidence to support magistrate's findings that Doe failed to comply with the case plan where she had seventeen months to do so and only began some compliance in the last six months by following the terms of her probation


concluding that there was substantial and competent evidence upon which to base a termination where Doe did not complete three of the tasks in her case plan and where testimony indicated that while she did what she could in order to complete the case plan, she did not gain what she was supposed to from the completed tasks


Context: Because this statement was a factual, and not a legal, conclusion, it was admissible under Rule 704. Kapina's statement that Cash Today was an artifice or scheme to defraud is more problematic, however, because it comes much closer to embodying an impermissible legal conclusion.

police detective's use of term "conspiracy" was permissible because "it did not track unduly the definition of the offense in 21 U.S.C. SS 846"

See United States v. Scop, 846 F.2d 135, 140 (2d Cir.1988) (expert’s opinions that “drew directly upon the language of the statute and accompanying regulations concerning ‘manipulation’ and ‘fraud’ ... were legal conclusions that were highly prejudicial and went well beyond his province as an expert in securities trading”); cf. Nixon, 918 F.2d at 905 (police detective’s use of term “conspiracy” was permissible because “it did not track unduly the definition of the offense in 21 U.S.C. § 846”). Although this statement was plainly inadmissible, Long nevertheless eazmot show that his substantial rights were affected.

expert's opinions that "drew directly upon the language of the statute and accompanying regulations concerning 'manipulation' and 'fraud' ... were legal conclusions that were highly prejudicial and went well beyond his province as an expert in securities trading"


Context: . It is well settled that as to the contemnor, an order of contempt is not appealable if sanctions were not imposed.

reiterating that "[u]nless sanctions are imposed, an order declaring a party in contempt is interlocutory

See Genovese, 550 A.2d at 1022 (reiterating that “[u]nless sanctions are imposed, an order declaring a party in contempt is interlocutory); see also Rhoades v. Pryce, 874 A.2d 148, 153 (Pa.Super. 2005) (finding that where the imposition of sanctions causes the contemnor to suffer harm or a penalty, the contempt order is appealable). Therefore, Mother would have been precluded from appealing the finding of contempt against her.


Context: It may also be necessary for the court to determine whether the present prosecutors, who have now been exposed to the information in Flemmi and Bulger's informant files, and thus may have been exposed to tainted evidence, may participate in Flemmi's trial if this case is not dismissed against him.

"[W]e reject the notion that the mere exposure to immunized testimony or the mere possibility of nonevidentiary use automatically results in the dismissal of the indictment."

But see United States v. Serrano, 870 F.2d 1, 18 (1st Cir.1989) (“[W]e reject the notion that the mere exposure to immunized testimony or the mere possibility of nonevidentiary use automatically results in the dismissal of the indictment.”)

"In a Kastigar setting, we are of the firm opinion that it would be unwise to permit an attorney familiar with the immunized testimony to participate in the trial or preparation of the case"

Byrd, 765 F.2d at 1532 n. 11 (“In a Kastigar setting, we are of the firm opinion that it would be unwise to permit an attorney familiar with the immunized testimony to participate in the trial or preparation of the case”); Palumbo, 897 F.2d at 251 (quoting Byrd); Tormos-Vega, 656 F.Supp. at 1531-32 (case dismissed in part because prosecutor was exposed to immunized testimony).


case dismissed in part because prosecutor was exposed to immunized testimony


Context: Dismissal of plaintiffs Ninth Amendment claim as too vague and concluso-ry was also appropriate. Equally unpersuasive are plaintiffs arguments that defendants unconstitutionally deprived him of a property interest in his blood without due process or just compensation.

See Rise, 59 F.3d at 1562-53 (Due Process Clause does not require hearing before involuntary extraction of blood for DNA sample; when the only requirement for obtaining DNA sample is conviction of predicate offense, there would be little of substance to contest at hearing); Vanderlinden v. Kansas, 874 F.Supp. 1210, 1216 (D.Kan.1995) (legislative process in enacting legislation affecting general class satisfies procedural due process to which those members of affected class entitled); cf. Dunn, 880 F.2d at 1198 (where court had approved', in general, blood testing of inmates for AIDS, inmates were not entitled to individual due process hearings).


Context: But courts interpret both UM/ UIM and PIP insurance provisions broadly, and our discussion of the term "auto accident" in Lindsey remains applicable to our analysis of the term "motor vehicle accident" in this case. See Stracener v. United Servs.

"The no-fault act is remedial in nature and is to be liberally construed in favor of the persons who are intended to benefit from it."

Auto. Ass’n, 777 S.W.2d 378, 382 (Tex.1989) (holding that UM/UIM coverage “is to be construed liberally to give full effect to the public policy which led to its enactment”); Unigard Sec. Ins. Co., 572 S.W.2d at 308 (noting that it is the public policy of the State that automobile policies include PIP benefits without regard to fault); Ortiz v. State Farm Mut. Auto. Ins. Co., 955 S.W.2d 353, 356-57 (Tex.App.-San Antonio 1997, pet. denied) (stating that courts must interpret the ÜM/UIM and PIP coverage provisions broadly to give full effect to “the state’s interest in protecting conscientious and thoughtful motorists from financial loss”); see also Putkamer v. Transamerica Ins. Corp. of Am., 454 Mich. 626, 563 N.W.2d 683, 686 (1997) (“The no-fault act is remedial in nature and is to be liberally construed in favor of the persons who are intended to benefit from it.”); 8D Apple-man on Insurance Law & Practice § 5171.55 (2003 Supp.) (“The terms [of no-fault and personal injury protection] are construed liberally to extend coverage broadly.”).

holding that UM/UIM coverage "is to be construed liberally to give full effect to the public policy which led to its enactment"


noting that it is the public policy of the State that automobile policies include PIP benefits without regard to fault


Context: In the present case, however, both Kahl and Ansley are readily distinguishable. Courts applying the UCC in Georgia recognize that a financing statement becomes seriously misleading when the names of the debtors are completely dissimilar.

noting that "[a] financing statement becomes seriously misleading when the two names are completely dissimilar, as are WASLA, Inc. and John Hadden, such that a creditor searching under WASLA, Inc. would not be alerted to inquire into John Hadden's interests."

See In re Cohutta Mills, Inc., 108 B.R. 815 (N.D.Ga.1989) (finding a financing statement to be seriously misleading when it was not amended to show the debtor’s name change from “King’s Tuft” to “Cohutta Mills”); see also Western Auto Supply Co. v. McKenzie, 227 Ga.App. 477, 489 S.E.2d 537, 539 n. 1 (1997) (noting that “[a] financing statement becomes seriously misleading when the two names are completely dissimilar, as are WASLA, Inc. and John Hadden, such that a creditor searching under WASLA, Inc. would not be alerted to inquire into John Hadden’s interests.”).

finding a financing statement to be seriously misleading when it was not amended to show the debtor's name change from "King's Tuft" to "Cohutta Mills"


Context: A relationship of trust between the defendant and the victim is the sine qua non of the abuse-of-trust enhancement.

"[T]he abuse of trust enhancement applies only where the defendant has abused discretionary authority entrusted to the defendant by the victim." (emphasis in original

See Garrison, 133 F.3d at 839 (“[T]he abuse of trust enhancement applies only where the defendant has abused discretionary authority entrusted to the defendant by the victim.” (emphasis in original)); see also Williams, 527 F.3d at 1250-52 (explaining that courts evaluate abuse-of-trust enhancement “by assessing the defendant’s relationship to the victim of the crime” and reversing enhancement where “there is no evidence that [the victim] entrusted [the defendant] with discretionary authority or placed a special trust, akin to that of a fiduciary, in [the defendant]”); United States v. Morris, 286 F.3d 1291, 1295-1300 (11th Cir.2002) (reversing application of enhancement where attorney participated in conspiracy to launder money but intended victims were not his clients); United States v. Mills, 138 F.3d 928, 941 (11th Cir.1998) (reversing enhancement because Medicare-funded care provider does not occupy position of trust vis-a-vis Medicare).

explaining that courts evaluate abuse-of-trust enhancement "by assessing the defendant's relationship to the victim of the crime" and reversing enhancement where "there is no evidence that [the victim] entrusted [the defendant] with discretionary authority or placed a special trust, akin to that of a fiduciary, in [the defendant]"


reversing application of enhancement where attorney participated in conspiracy to launder money but intended victims were not his clients


reversing enhancement because Medicare-funded care provider does not occupy position of trust vis-a-vis Medicare


Context: He testified: "I didn't know at that point whether it was a weapon or just exactly what it was at that point, before I actually did a frisk." When asked whether he had anything in his pockets, Shaw replied that he had only $50. We hold that Sergeant Lee failed to articulate a sufficient basis for conducting the pat-down upon Appellant.

See M.A.H. v. State, 559 So.2d 407 (Fla. 1st DCA 1990) (lawful initial detention in high-crime area did not justify subsequent pat-down search conducted merely as a matter of routine police practice).

Cf. Richardson v. State, 599 So.2d 703 (Fla. 1st DCA 1992); White v. State, 458 So.2d 1150 (1st DCA 1984), pet. for rev. den., 464 So.2d 556 (Fla.1985) (reversing order denying suppression motion, where officer testified he suspected the defendant had a weapon, although the officer did not know what was in the confiscated small manila envelope but knew it was neither metal nor wood).


Context: In response to Mr. Cash's request to see him, Officer Brittingham asked "what was going on[?]" (ROA, Vol. II at 137). Although phrased as a question, this was merely an innocuous attempt to understand why Mr. Cash wanted to speak with him.

no interrogation where defendant in custody requested to speak to detective and detective "asked [the defendant] why he wanted to see him, but asked no leading questions of any sort"

See United States v. Jones, 600 F.3d 847, 854 (7th Cir.2010) (no interrogation where defendant in custody requested to speak to detective and detective “asked [the defendant] why he wanted to see him, but asked no leading questions of any sort”); see also W. LaFave et al., 2 Crim. Proc. § 6.7(b) (3d ed.) (exclusion of “innocuous question[s]” from the definition of interrogation is “certainly correct” given the Innis Court’s admonition that “ ‘police surely cannot be held accountable for the unforeseeable results of their words or actions.’ ” (quoting Innis, 446 U.S. at 301-02, 100 S.Ct. 1682)).

exclusion of "innocuous question[s]" from the definition of interrogation is "certainly correct" given the Innis Court's admonition that " 'police surely cannot be held accountable for the unforeseeable results of their words or actions.' " (quoting Innis, 446 U.S. at 301-02, 100 S.Ct. 1682


Context: We have already expressed doubt about the police's use of deceptive tactics to "persuade" a suspect that a confession is in his best interest, in light of the evidence already amassed by the government when, in fact, there is no such evidence. But the use of deception to exert psychological pressure that exploits vulnerabilities extraneous to the offense charged, such as the threat of adverse consequences to family members if the suspect does not confess or cooperate with the investigation, is in a different category that has been singled out for condemnation.

finding confession voluntary when "Specifically, [the police] made no threats or promises"

See Lynumn, 372 U.S. at 534, 83 S.Ct. 917 (confession involuntary where suspect, who had been “set up” by informant and had no prior experience with criminal law, was threatened with loss of children and federal aid if she did not “cooperate”); Rogers, 365 U.S. at 549, 81 S.Ct. 735 (expressing view that “issue of voluntariness might fairly have gone either way in the whole of the testimony” where detained suspect who initially denied involvement in shooting confessed after being told that his wife would be brought into custody for questioning); Spano, 360 U.S. at 324, 79 S.Ct. 1202 (confession involuntary where the police used the suspect’s “childhood friend,” who falsely stated that the suspect’s “telephone call [to him] had gotten him into trouble, that his job was in jeopardy, and that loss of his job would be disastrous to his three children, his wife and his unborn child”); cf. Davis, 724 A.2d at 1168 (finding confession voluntary when “Specifically, [the police] made no threats or promises”); Contee, 667 A.2d at 104 (finding confession voluntary although appellant asserted that the police “used promises and implied threat,” when “he generally does not articulate what those promises were ... nor does the record support his bare assertions”); Ledbetter, 35 F.3d at 1069 (suspect who was not physically punished or threatened and who waived Miranda rights three times not coerced into confessing even though officers lied about evidence incriminating him).

confession involuntary where suspect, who had been "set up" by informant and had no prior experience with criminal law, was threatened with loss of children and federal aid if she did not "cooperate"


finding confession voluntary although appellant asserted that the police "used promises and implied threat," when "he generally does not articulate what those promises were ... nor does the record support his bare assertions"


suspect who was not physically punished or threatened and who waived Miranda rights three times not coerced into confessing even though officers lied about evidence incriminating him


expressing view that "issue of voluntariness might fairly have gone either way in the whole of the testimony" where detained suspect who initially denied involvement in shooting confessed after being told that his wife would be brought into custody for questioning


confession involuntary where the police used the suspect's "childhood friend," who falsely stated that the suspect's "telephone call [to him] had gotten him into trouble, that his job was in jeopardy, and that loss of his job would be disastrous to his three children, his wife and his unborn child"


Context: Here, G & G obtained an injunction from the district court, which materially altered the legal relationship between the parties by prohibiting the state from depriving G & G of property without any hearing. Certainly that change benefitted G & G and it is the prevailing party.

See Herrington v. County of Sonoma, 883 F.2d 739, 744 (9th Cir.1989) (injunction, which appellate court upheld, rendered plaintiffs prevailing parties despite vacatur of damage award); see also Baumgartner v. Harrisburg Hous. Auth., 21 F.3d 541, 543 (3d Cir.1994) (plaintiff who has received injunctive relief has prevailed for purposes of section 1988).


Context: . The majority's reference to the First Amendment roots of "educational autonomy," see Maj. Op. at 841, is misleading since the Supreme Court has consistently rejected First Amendment interests as a justification for racial discrimination.

noting that under the First Amendment, "[t]here is no constitutional right, for example, to discriminate in the selection of who may attend a private school or join a labor union"

See, e.g., Runyon, 427 U.S. at 176, 96 S.Ct. 2586 (holding that while, "it may be assumed that parents have a First Amendment right to send their children to educational institutions that promote” racial discrimination, "it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle”); Norwood v. Harrison, 413 U.S. 455, 470, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973) (holding, "[ijnvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections”); see also Hishon v. King & Spalding, 467 U.S. 69, 78, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (noting that under the First Amendment, "[t]here is no constitutional right, for example, to discriminate in the selection of who may attend a private school or join a labor union”).

holding that while, "it may be assumed that parents have a First Amendment right to send their children to educational institutions that promote" racial discrimination, "it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle"


holding, "[ijnvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections"


Context: Judges Levi and Damrell concluded that Pickem is distinguishable because it was primarily addressing a statute of limitations issue, and they believe that it did not fully adopt the Steger analysis.

finding that plaintiffs "standing to bring an ADA action must rest on the architectural barriers he contends he encountered during the visit that pre-dates the filing of the Complaint."

See White v. Divine Investments, Inc., 2005 WL 2491543, *3 (finding in addition that Pic-kem was distinguishable on the ground that the Pickem plaintiff “actually encountered all of the barriers that he sought to remedy in his suit.”) ; Martinez v. Longs Drug Stores, 2005 WL 2072013; see also Harris v. Costco Wholesale Corp., 389 F.Supp.2d 1244, 1249 (S.D.Cal.2005) (finding that plaintiffs “standing to bring an ADA action must rest on the architectural barriers he contends he encountered during the visit that pre-dates the filing of the Complaint.”).

finding in addition that Pic-kem was distinguishable on the ground that the Pickem plaintiff "actually encountered all of the barriers that he sought to remedy in his suit."


Context: This Court finds that the improper installation, and subsequent failure, of a device designed to lift small boats from the water onto a vessel while the vessel is docked in navigable waters, poses more than a fanciful risk of disrupting commercial activity at ports and on waterways. Among other possibilities, the failure of a boat-lift davit presents a hazard to nearby vessels at the time of the davit's malfunction and, subsequently, threatens to disrupt commercial traffic in order to provide medical treatment to persons who may have been injured by the failed equipment.

rescue operations of Coast Guard following capsize of recreational sailboat establish incident's significant relationship to traditional maritime activities

See Szollosy v. Hyatt Corp., 208 F.Supp.2d 205, 213 (D.Conn.2002) (“the emergency medical treatment of [the alleged victim] also carried the potential to disrupt maritime commerce”); Emery v. Rock Island Boatworks, Inc., 847 F.Supp. 114, (C.D.Ill.1994) (finding that “a personal injury aboard [a] vessel ... carries the potential of necessitating extraordinary rescue measures affecting [maritime] commerce”); cf. Kelly v. United States, 531 F.2d 1144, 1147 (2d Cir.1976) (rescue operations of Coast Guard following capsize of recreational sailboat establish incident’s significant relationship to traditional maritime activities).

"the emergency medical treatment of [the alleged victim] also carried the potential to disrupt maritime commerce"


finding that "a personal injury aboard [a] vessel ... carries the potential of necessitating extraordinary rescue measures affecting [maritime] commerce"


Context: Equally significant, Congress chose not to identify the countries, regions, or geographical areas included in the "Southwest Asia" term, nor did it provide a definition of the term. Indeed, the fact that the parties, in them briefs and at oral argument, could not agree as to the countries that should be included as part of the "Southwest Asia" region and cited different authorities supporting their positions reveals that the plain meaning of this term is not clear from the statute itself.

"Ambiguity is a creature not of definitional possibilities but of statutory context .... "

See Tallman v. Brown, 7 Vet.App. 453, 461 (1995) (holding that ambiguity exists when a statute can be interpreted by reasonably well-informed people in two or more ways), rev’d on other grounds, 105 F.3d 613 (Fed. Cir. 1997); see also Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) (“Ambiguity is a creature not of definitional possibilities but of statutory context .... ”).


Context: While not all the cases are consistent, as a general matter the phrase in the Treaty, "a felony under the law of the United States of America," refers to federal law.

endorsing reference "to federal law-when there is some-as a gauge for [the] gravity" of the offense for which extradition is sought

See, e. g., Shapiro v. Ferrandina, 478 F.2d 894, 910 n. 18 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973) (endorsing reference “to federal law-when there is some-as a gauge for [the] gravity” of the offense for which extradition is sought); Garcia-Guillern v. United States, 450 F.2d 1189, 1192 n. 1 (5th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972) (federal not state statute of limitations controls); United States ex rel. Sakugucki v. Kaulukukui, 520 F.2d 726, 728 (9th Cir. 1975) (national not state law “sets the standard” to determine sufficiency of evidence); Freedman v. United States, 437 F.Supp. 1252, 1259-60 (N.D.Ga.1977) (examining both state and federal law in determining what is “bribery” despite slightly more ambiguous language in Webster-Ashburton Treaty with Canada).

Louisiana law relied upon, "But no procedural rule of a state could give to a prisoner the right to introduce evidence made irrelevant by a treaty."

Cf. Collins v. Loisel, 259 U.S. 309, 317, 42 S.Ct. 469, 470, 66 L.Ed. 956 (1922) (Louisiana law relied upon, “But no procedural rule of a state could give to a prisoner the right to introduce evidence made irrelevant by a treaty.”); Pettit v. Walshe, 194 U.S. 205, 217, 24 S.Ct. 657, 48 L.Ed. 938 (1904) (state law applicable for the purpose of assessing the probability of whether the person sought to be extradited committed the acts charged, there being no federal common law of crimes); Wright v. Henkel, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948 (1903) (same); Muller’s Case, Case No. 9,913, 17 Fed.Cases 975, 976 (E.D.Pa.1863) (in absence of United States law, law of state where person is found applies).


state law applicable for the purpose of assessing the probability of whether the person sought to be extradited committed the acts charged, there being no federal common law of crimes


national not state law "sets the standard" to determine sufficiency of evidence


examining both state and federal law in determining what is "bribery" despite slightly more ambiguous language in Webster-Ashburton Treaty with Canada


Context: That may be true, but, as Spencer Hospital correctly notes, "year" is defined as "twelve consecutive months," month is defined as "a calendar month," and "two years" or twenty-four consecutive months from February 28, 2010, is February 28, 2012. Whether the reference point is days, months, or years, the last day to file the lawsuit was February 28, 2012, as the district court originally concluded, not February 29, 2012.

"[T]he term 'year,' is that period of time commencing the following day after the act or event occurred and ending at the close of the first anniversary of the day the act occurred."

See Happle v. Monson, 235 Iowa 650, 17 N.W.2d 391, 392 (1945) (applying equivalent of section 4.1(34) and concluding that a judgment entered on June 22, 1932, and transcribed on June 22, 1942, was not barred by a ten-year statute of limitations); see also Schon v. Nat’l Tea Co., 19 Ohio App.2d 222, 250 N.E.2d 890, 892 (1969) (“[T]he term ‘year,’ is that period of time commencing the following day after the act or event occurred and ending at the close of the first anniversary of the day the act occurred.”).


Context: The district court properly dismissed Cotton's conspiracy claims because Cotton failed to allege facts sufficient to show that defendants conspired together to violate Cotton's rights based on his membership in a protected class.

"A claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985."

See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are construed liberally, a plaintiff must present factual allegations sufficient to state a plausible claim for relief); Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980) (elements of a § 1985 claim); see also Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988) (“A claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985.”).


Context: To help determine the plain and ordinary meaning, courts may turn to the dictionary for guidance. We agree with the BAP that "public assistance benefits" are those government benefits provided to the needy.

consulting dictionaries and concluding "public assistance" means government benefits provided to the needy

See Hardy v. Fink (In re Hardy), 503 B.R. 722, 725 (8th Cir.BAP2013) (consulting dictionaries and concluding “public assistance” means government benefits provided to the needy); see also In re Hatch, 519 B.R. 783, 788 (Bankr.S.D.Iowa 2014) (determining whether the ACTC fell within public assistance by analyzing whether the credit benefits low-income families).


Context: . We do not decide whether a jury -- as opposed to a judge at sentencing -- should be able to consider sentencing entrapment as a valid justification defense.

See Staufer, 38 F.3d at 1108 (finding sentencing entrapment a valid reason to depart from the Guidelines); cf. United States v. Ryan, 289 F.3d 1339, 1342-43 (11th Cir.2002) (questioning the validity of the sentencing entrapment defense after Apprendi, but ultimately not reaching the question because the defense would fail).


Context: Such a minimal imposition does not trigger constitutional due process protection. The D.C. Circuit explained almost thirty years ago that "matters involving a few dollars or less" do not trigger due process.

See, e.g., Moncla v. Kelley, 430 Fed.Appx. 714, 718 (10th Cir.2011) (unpublished) (finding de minimis any lost interest on $20 that had been temporarily withheld); Kennedy v. City of Cincinnati, 595 F.3d 327 (6th Cir.2010) (holding that an individual’s property interest in a $10 pool pass was de minimis); Northern v. Nelson, 448 F.2d 1266, 1267 (9th Cir.1971) (finding a claim for damages of $1.05 was properly dismissed as de minimis); cf. Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971) (stating that a $7.50 bail fee imposed on an equally vulnerable population “smacks of administrative detail” and is “hardly to be classified as a ‘fundamental’ right”).

stating that a $7.50 bail fee imposed on an equally vulnerable population "smacks of administrative detail" and is "hardly to be classified as a 'fundamental' right"


holding that an individual's property interest in a $10 pool pass was de minimis


finding a claim for damages of $1.05 was properly dismissed as de minimis


Context: In Local 32B-32J, the union filed a declaratory judgment action seeking to enjoin the enforcement of rules adopted by the Port Authority regulating free speech activities, namely labor picketing, at the World Trade Center and the Port Authority Bus Terminal, Among the rules considered by the court was a rule that required an application thirty-six hours prior to the proposed use, approval within twenty-four hours, and an elaborate appellate procedure in the event an application was initially denied. The court upheld the waiting period based on evidence that it was necessary to prevent disruptions and "self-evident" that expressive activities on controversial issues may require additional security, and on the grounds that longer waiting periods had been upheld in other jurisdictions.

See Quaker Action Group v. Morton, 516 F.2d 717 (D.C.Cir.1975)(upheld forty-eight hours waiting period); Powe v. Miles, 407 F.2d 73 (2d Cir.1968)(upholding a public university's requirement of forty-eight-hours notice of a demonstration on campus is constitutional); Local 32B-32J, Service Employees International Union v. Port Authority, 944 F.Supp. 208 (S.D.N.Y.1996) (thirty-six-hour waiting period, while probably not necessary in many instances, must be required of all applicants to meet requirement that regulations be content neutral); but see NAACP v. City of Richmond, 743 F.2d 1346 (9th Cir.1984)(twenty-day waiting period for permit for parade protesting racial discrimination is unconstitutional).


thirty-six-hour waiting period, while probably not necessary in many instances, must be required of all applicants to meet requirement that regulations be content neutral


Context: In this case, the district court's October 15 Order allowing Plaintiffs to take the depositions of Davis and Steinhauser is overly broad because it failed to limit the scope of the depositions to the issue of qualified immunity. If the court had carefully tailored its order to allow the parties to only uncover those facts necessary to rule on Davis' immunity defense, we would not have jurisdiction to rule on the order at this time.

See Lion Boulos, 834 F.2d at 507 (orders allowing limited discovery not immediately appealable when district court unable to rule on the immunity defense without further clarification of facts and order narrowly tailored to uncover only those facts); see also Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523 (1987) (discovery permissible if limited to a specific factual dispute regarding availability of qualified immunity defense).


Context: As in Salinas's other case, here, the record reflects that the court explicitly considered deterrence and protection of the public in imposing the above-range sentence and implicitly considered Salinas's history and characteristics.

"The factual basis supporting [the district court's reasons] is implicit in [its] findings that most of the revocation charges were true."

See Whitelaw, 580 F.3d at 264 (“The factual basis supporting [the district court’s reasons] is implicit in [its] findings that most of the revocation charges were true.”); see also United States v. Ontiveros, 584 Fed.Appx. 236, 237 (5th Cir. 2014) (“The court’s reasons reflect its concern that an individual who drives while drinking 12 beers, while on supervised release from a prior conviction under conditions prohibiting such behavior, needs a sentence sufficient to deter and to protect the public.”).

"The court's reasons reflect its concern that an individual who drives while drinking 12 beers, while on supervised release from a prior conviction under conditions prohibiting such behavior, needs a sentence sufficient to deter and to protect the public."


Context: In addition, the continuance only lasted about five months, and the trial itself occurred just two-and-a-half months after the court reporter completed and filed the transcripts the defendants had requested. Such a relatively short period of time is not unreasonable.

noting that where district court "memorialized" its previous "silent grant" of defendant's motion for a continuance more than a year after he filed the motion, defendant's motion only requested a two-month continuance, and continuance reflected the district court's "oversight rather than deliberation," defendant's speedy trial rights were violated

See, e.g., Twitty, 107 F.3d at 1489 (holding that five-month open-ended continuance based on ends of justice did not violate Speedy Trial Act); Lattany, 982 F.2d at 874-76 (ruling that one-year delay resulting from district court’s grant and then extension of open-ended ends-of-justice continuance was not unreasonable where defendant changed counsel several times and various counsel requested continuances to permit them to prepare for trial); United States v. Davenport, 935 F.2d 1223, 1236 (11th Cir.1991) (determining that seven-month ends-of-justice continuance giving two defendants additional time to prepare for trial was reasonable delay that could be attributed to co-defendant); cf. Jones, 56 F.3d at 584-85 (noting that where district court “memorialized” its previous “silent grant” of defendant’s motion for a continuance more than a year after he filed the motion, defendant’s motion only requested a two-month continuance, and continuance reflected the district court’s “oversight rather than deliberation,” defendant’s speedy trial rights were violated).


ruling that one-year delay resulting from district court's grant and then extension of open-ended ends-of-justice continuance was not unreasonable where defendant changed counsel several times and various counsel requested continuances to permit them to prepare for trial


determining that seven-month ends-of-justice continuance giving two defendants additional time to prepare for trial was reasonable delay that could be attributed to co-defendant


Context: Regarding the merits of this appeal, the narrow question we must decide is whether the United States can maintain an action to foreclose on the Mortgage even though it is barred under section 2415(a) from enforcing its right to collect money damages on the Note and the Thornburgs' personal guaranty. The United States argues that the state lien law theory that a mortgage cannot be foreclosed after the statute of limitations bars collecting contract damages is inapplicable to the federal government because it has the same effect as a state statute of limitations. We review de novo a district court's interpretation of the applicable law.

See Arford v. United States, 934 F.2d 229, 231 (9th Cir.1991) (whether the United States has waived sovereign immunity is reviewed de novo); see also, Mendez v. Ishikawajima-Harima Heavy Industries Co., 52 F.3d 799, 800 (9th Cir.1995) (a ruling on the appropriate statute of limitations is reviewed de novo).


Context: We are presented with that very situation in the case before us. The debtor and the trustee have presented possible interpretations of the text that are supported by authority. Indeed, the differing outcomes of the bankruptcy courts that have examined this issue to date indicate that the language of 11 U.S.C. SS 1325(b) is not at all clear.

"Although apparently straightforward, as with much of BAPCPA, the text Congress used plausibly lends itself to at least two different interpretations of what exactly 'applicable commitment period' means."

See In re Laroy Davis, 392 B.R. 132, 137-41 (Bankr.E.D.Pa.2008) (outlining cases that are divided on how to calculate a debtor’s “projected disposable income”); id. at 143-46 (outlining cases that are divided on whether the “applicable commitment period” is a monetary or temporal requirement); see also In re Green, 378 B.R. 30, 33 (Bank.N.D.N.Y.2007) (noting that BAPCPA rendered § 1325(b) “a murky stew of conflicting judicial opinions about the plain language meaning of common words and phrases contained in the statute itself and the Congressional intent behind it”); In re Slusher, 359 B.R. 290, 300 (Bankr.Nev.2007) (“Although apparently straightforward, as with much of BAPCPA, the text Congress used plausibly lends itself to at least two different interpretations of what exactly ‘applicable commitment period’ means.”).

outlining cases that are divided on how to calculate a debtor's "projected disposable income"


Context: Such an argument is akin to the substance-over-form doctrine in tax law in which we look past the labels the parties give to a structure to determine its economic reality. The Supreme Court and many other courts, including this one, have applied the substance-over-form doctrine to consumer finance law.

"The [Truth in Lending] Act is remedial in nature, and the substance rather than the form of credit transactions should be examined in cases arising under it."

See, e.g., Mourning, 411 U.S. at 366 n. 26, 93 S.Ct. at 1659 n. 26; Meyers v. Clearview Dodge Sales, Inc., 539 F.2d 511, 515 (5th Cir.1976) (“[A]ppellant’s argument elevates form over substance in an effort to avoid the realities of the credit transaction.”); see also Adiel v. Chase Fed. Sav. & Loan Ass’n, 810 F.2d 1051, 1053 (11th Cir.1987) (same); Hickman v. Cliff Peck Chevrolet, Inc., 566 F.2d 44, 46 (8th Cir.1977) (“The [Truth in Lending] Act is remedial in nature, and the substance rather than the form of credit transactions should be examined in cases arising under it.”).

"[A]ppellant's argument elevates form over substance in an effort to avoid the realities of the credit transaction."


Context: The district court agreed with the [P] that the Lindamood-Bell placement was "highly restrictive" by IDEA standards.

recognizing that "parents seeking an alternative placement may not be subject to the same mainstreaming requirements as a school board," but concluding that the IDEA'S mainstreaming requirement "remains a consideration that bears upon a parent's choice of an alternative placement and may be considered by the hearing officer in determining whether the placement was appropriate"

M.S., No. 1:05cv1476, 2007 WL 1378545, at *16, 2007 U.S. Dist. LEXIS 33735, at *49; see also M.S ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir.2000) (recognizing that “parents seeking an alternative placement may not be subject to the same mainstreaming requirements as a school board,” but concluding that the IDEA’S mainstreaming requirement “remains a consideration that bears upon a parent’s choice of an alternative placement and may be considered by the hearing officer in determining whether the placement was appropriate”).

noting that "the [IDEA]'s preference for mainstreaming was aimed at preventing schools from segregating handicapped students from the general student body" and that "the school district ha[d] presented no evidence that the [IDEA'S preference for mainstreaming] was meant to restrict parental options when the public schools fail to comply with the requirements of the [IDEA] (emphasis in original

M.S., No. 1:05cv1476, 2007 WL 1378545, at *16, 2007 U.S. Dist. LEXIS 33735, at *49. Although we have never held that parental placements must meet the least restrictive environment requirement, see Carter, 950 F.2d at 160 (noting that “the [IDEA]’s preference for mainstreaming was aimed at preventing schools from segregating handicapped students from the general student body” and that “the school district ha[d] presented no evidence that the [IDEA’S preference for mainstreaming] was meant to restrict parental options when the public schools fail to comply with the requirements of the [IDEA] (emphasis in original)), the district court’s consideration of Lindamood-Bell’s restrictive nature was proper because it considered the restrictive nature only as a factor in determining whether the placement was appropriate under the IDEA, not as a dispositive requirement.


Context: Courts in this circuit have held that statutory framework may create a property interest.

See Kapps, 404 F.3d at 113-15; Basciano v. Herkimer, 605 F.2d 605, 611 (2d Cir.1978) (holding that city administrative code created a property right in receipt of accident disability retirement benefits, where the code required officials to give benefits to applicants who met specified criteria); see also Winston, 759 F.2d at 242; Sparveri v. Town of Rocky Hill, 396 F.Supp.2d 214, 218 (D.Conn.2005) (noting that the plaintiff claimed that her entitlement to the level of pension and healthcare benefits was rooted in the statutory pension scheme established by the Town Charter and Plan ordinance).


Context: P 52 The relevance of this real-world situation to the present legal issue is that, simply stated, electronic credits have no actual physical location once they are created in Western Union's computer system. Instead, just like e-mail communications whose receipt is not limited to any particular location or computer, such electronic credits necessarily exist simultaneously in every place they can be instantly received.

See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 851, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (“cyberspace,” in which e-mail exists, is “a unique medium ... located in no particular geographical location but available to anyone, anywhere in the world”); Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 590-91, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (Breyer, J., concurring) (describing impossibility of confining Internet to particular geographical areas); see also Campbell Pet Co. v. Miale, 542 F.3d 879, 884 (Fed. Cir.2008) (Web site information available everywhere, not confined to discrete jurisdiction or exclusively located in any one place).

"cyberspace," in which e-mail exists, is "a unique medium ... located in no particular geographical location but available to anyone, anywhere in the world"


Context: This court has not interpreted "national origin" so narrowly as to provide protections only to individuals who were born outside the United States.

discrimination against citizen due to father's Japanese birth violates equal protection

See also Espinoza, supra at 88 (noting that words “national origin” and “ancest[ryj” were equated by drafters of Title VII of Civil Rights Act of 1964); Oyama v. California, 332 U.S. 633, 640 (1948) (discrimination against citizen due to father’s Japanese birth violates equal protection).

finding discrimination on basis of "ethnicity" when considering prosecutor's peremptory challenges of jurors with "Irish-sounding surnames"

See, e.g., Commonwealth v. Carleton, 418 Mass. 773, 775 (1994) (finding discrimination on basis of “ethnicity” when considering prosecutor’s peremptory challenges of jurors with “Irish-sounding surnames”).


Context: Given this state of the record, Surasky's statement, when viewed, as it must be, in the light most favorable to him, is fairly described as a mere "denial of guilt" within the meaning of U.S.S.G. SS 3C1.1. Accordingly, Surasky's statement cannot provide the basis for an obstruction of justice enhancement.

noting that "a simple denial of guilt -- as in pleading not guilty, or saying to an arresting officer, T didn't do anything' -- cannot be the basis for an obstruction enhancement under SS 3C1.1."

See United States v. Fiala, 929 F.2d 285, 289-90 (7th Cir.1991) (reversing an obstruction of justice enhancement imposed upon a motorist who, when asked by a state trooper if he had anything illegal the car, replied that he did not, even though there was marijuana in the vehicle); see also United States v. Contreras, 937 F.2d 1191, 1194 (7th Cir.1991) (noting that “a simple denial of guilt — as in pleading not guilty, or saying to an arresting officer, T didn’t do anything’ — cannot be the basis for an obstruction enhancement under § 3C1.1.”).


Context: None of these cases involve the corresponding diminished expectation of privacy to which persons on community custody in the State of Washington submit as a condition of being allowed to serve sentencing terms outside prison confinement. Thus, we note, but do not follow, the trend in other states and federal circuit courts to analogize and to treat electronic storage media as closed containers for search and seizure purposes.

But see State v. Smith, 124 Ohio St. 3d 163, 2009-Ohio-6426, 920 N.E.2d 949, 954, cert. denied, 131 S. Ct. 102 (2010) (arguing that cell phones were not closed containers because they did not store physical objects).

See Barth, 26 F. Supp. 2d at 936-37 (finding that the owner of a computer manifested a reasonable expectation of privacy in the contents of data files by storing them on a computer hard drive); Chan, 830 F. Supp. at 534 (analogizing data in a pager to contents of a closed container).


analogizing data in a pager to contents of a closed container


Context: The record demonstrates: (1) the state's case rested solely on two teenage complainants' testimony of abuse; (2) Sebasky vigorously denied any misconduct; (3)the trial court found the other crime was sufficiently relevant to the charged offense; (4) the trial court gave a cautionary instruction at the time the evidence was received and again during final jury instructions; and (5) during final argument, the prosecutor stressed the limited purpose of the Spreigl evidence. Under these circumstances, the Spreigl evidence is relevant and its probative value outweighs its potential for prejudice.

See Wermerskirchen, 497 N.W.2d at 241-42 (affirming the admission of Spreigl evidence in a criminal sexual conduct case and finding it was highly relevant to the issue of whether the conduct occurred because the defendant denied the misconduct and the trial court found the other crime was sufficiently relevant to the charged crime); State v. Frisinger, 484 N.W.2d 27, 31 (Minn.1992) (stating that a closer relationship between the Spreigl evidence and the charged crime shows a greater probative value and a lesser likelihood that the evidence will be used improperly); see also State v. Bolte, 530 N.W.2d 191, 196-97 (Minn.1995) (requiring certain procedural safeguards, including a cautionary instruction upon receipt of the evidence and as part of the final instructions).


stating that a closer relationship between the Spreigl evidence and the charged crime shows a greater probative value and a lesser likelihood that the evidence will be used improperly


Context: The trial court found that the officer activated his lights to warn oncoming traffic that he was parked on the roadway. However, the officer's subjective intent in activating his emergency lights was irrelevant where, as here, this intent was never conveyed to appellant. The question is how the circumstances, viewed objectively, would have been perceived by a reasonable person in appellant's position.

"[Rjegardless of the officers' intent in activating the lights, whether a seizure occurred is determined by what a reasonable person in G.M.'s position would have concluded based upon the conduct of the officers."

See G.M., 19 So.3d at 980 n. 5 (“[Rjegardless of the officers’ intent in activating the lights, whether a seizure occurred is determined by what a reasonable person in G.M.’s position would have concluded based upon the conduct of the officers.”); see also State v. Williams, 185 S.W.3d 311, 318 (Tenn.2006) (“While the officer may have subjectively intended to activate his blue lights solely for his safety and the safety of others on the road, the litmus test is the objective belief of a reasonable person in the position of the defendant, not that of the officer.”).

"While the officer may have subjectively intended to activate his blue lights solely for his safety and the safety of others on the road, the litmus test is the objective belief of a reasonable person in the position of the defendant, not that of the officer."


Context: Defendant Rickhoff refused to issue a license because Holmes and Phariss are both men. This denial establishes an Article III injury.

See Parker v. D.C., 478 F.3d 370, 376 (D.C.Cir.2007) (holding that courts have consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury); see also Bishop, 962 F.Supp.2d at 1273-74, 2014 WL 116013, at *14 (noting couple proved standing because they sought marriage license and were denied such license because of their same-sex couple status); see also Bostic, 970 F.Supp.2d at 473-74, 2014 WL 561978, at *14. Meanwhile, Plaintiffs De Leon and Dimetman contend that because Texas does not recognize same-sex marriage, Dimetman could not be considered their child’s legal parent unless she went through the long administrative and expensive process of adoption. The Court finds these monetary damages constitute a concrete, injury in fact suffered by Plaintiffs due to Texas’ ban on same-sex marriage.


Context: Thus, I think the instruction in the present case, if not inaccurate, was at least confusing. Confusing instructions are especially problematic in a factually close case, as is the situation here.

finding a confusing instruction harmless and noting it was "significant this [was] not a close case"

See People v. James, 196 Cal. App.3d 272, 241 Cal.Rptr. 691, 700-01 (1987) (finding a confusing instruction harmless and noting it was “significant this [was] not a close case”); Preston v. State, 282 Ga. 210, 647 S.E.2d 260, 263 (2007) (noting a particular instruction should not be given in the future, as it “could have the possibility of being confusing in a close case”); see also United States v. Wisecar-ver, 598 F.3d 982, 989-90 (8th Cir.2010) (holding confusing jury instruction given in a close case seriously affected the fairness and integrity of the trial); United States v. Easley, 942 F.2d 405, 411-12 (6th Cir.1991) (reversing and remanding for a new trial in a close case because the district court erred by giving an instruction that had the possibility of causing considerable jury confusion).


reversing and remanding for a new trial in a close case because the district court erred by giving an instruction that had the possibility of causing considerable jury confusion


noting a particular instruction should not be given in the future, as it "could have the possibility of being confusing in a close case"


Context: We hold that this appeal has been mooted by the district court's dissolution of the preliminary injunction, as we can no longer grant Appellant's requested relief.

"In order for this court to maintain appellate jurisdiction over Appellants' appeal of the preliminary injunction, it must be able to provide the parties with some type of effective relief."

See In re Blast Energy Servs., Inc., 593 F.3d 418, 423 (5th Cir.2010) (“If an appellate court is unable to grant any remedy for an appellant, its opinion would be merely advisory and it must dismiss the appeal as moot.”); see also Hornbeck Offshore Servs., L.L.C. v. Salazar, 396 Fed.Appx. 147, 147 (5th Cir.2010) (“In order for this court to maintain appellate jurisdiction over Appellants’ appeal of the preliminary injunction, it must be able to provide the parties with some type of effective relief.”).

"If an appellate court is unable to grant any remedy for an appellant, its opinion would be merely advisory and it must dismiss the appeal as moot."


Context: As debtors will rarely admit an intent to hinder, delay or defraud a creditor, courts have long considered objective "badges of fraud" in determining the existence of fraudulent intent. See, e.g., In re Sharp Intern.

Corp., 403 F.3d 43, 56 (2d Cir. 2005) (in fraudulent conveyance action, pleader may rely upon objective badges of fraud to support inference of actual fraudulent intent); In re Varrasso, 37 F.3d 760, 764 (1st Cir. 1994) (determination that debtor had actual intent to fraudulently transfer property can be made based upon undisputed material facts); see also In re Marrama, 445 F.3d 518, 522 (1st Cir. 2006) (“[I]n certain cases, circumstantial evidence may be sufficiently potent to establish fraudulent intent beyond hope of contradiction.”).

"[I]n certain cases, circumstantial evidence may be sufficiently potent to establish fraudulent intent beyond hope of contradiction."


determination that debtor had actual intent to fraudulently transfer property can be made based upon undisputed material facts


Context: Nonetheless, the risk of injecting unnecessary delay in resolving this case may be greater if this seven-year-old case is transferred. This Court is familiar with the multiple issues and lengthy procedural history of the case, and decided Toyobo's dispositive motions. Given the parties' voluminous filings, this experience is not insignificant, and a court in the Western District of Michigan will likely require a substantial amount of time to familiarize itself with the case.

See Savoy Indus., Inc., 587 F.2d at 1156 (affirming denial of motion to transfer in part because of the delay that would arise while the transferee court familiarized itself with the complex case that the district court was already prepared to try); cf. Devaughn v. Inphonic, Inc., 403 F.Supp.2d 68, 73 (D.D.C.2005) (noting that “the case has not progressed so far that delay would result if another court must familiarize itself with the disputed facts or the procedural background”).

noting that "the case has not progressed so far that delay would result if another court must familiarize itself with the disputed facts or the procedural background"


Context: If the State's payments were'"voluntary" but do not accord with HHS's final position, then HHS should remit the money. If, however, HHS intends to keep the money under its view .of the Transitional Reinsurance Program's applicability, then such a decision would' be tantamount to the "consummation of the agency's decision-making process .... by which rights-or obligations have been determined, or from which legal consequences will flow."

contrasting a "tentative recommendation" from "a final- and binding determination"

Bennett, 520 U.S. at 178, 117 S.Ct. 1154 (quotations omitted) (contrasting a “tentative recommendation” from “a final- and binding determination”); see also Air Brake Sys., Inc. v. Mineta, 357 F.3d 632, 638 (6th Cir.2004) (“The finality‘inquiry, we are told, is a ’flexible’ and ‘pragmatic’ one.” (quotation omitted)); cf. Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C.Cir.2000) (holding that agency’s settled position, upon which it will insist that state and local authorities comply with its understanding, is renewable under the APA).

holding that agency's settled position, upon which it will insist that state and local authorities comply with its understanding, is renewable under the APA