Context: Instead, he signed a waiver of rights and, when asked whether he would make a statement, gave several unintelligible responses before stating, "yeah." Thus, Andrade did not unambiguously and unequivocally invoke his right to remain silent.

trial court properly found that defendant invoked his right to remain silent where defendant "shook his head in the negative when asked if he wanted to talk about the victim's death and the questioning agent took [defendant's] response to be a refusal to talk about the incident"

But see State v. Nash, 279 Ga. 646, 648 (2) (619 SE2d 684) (2005) (trial court properly found that defendant invoked his right to remain silent where defendant “shook his head in the negative when asked if he wanted to talk about the victim’s death and the questioning agent took [defendant’s] response to be a refusal to talk about the incident”).

"If Perez had truly intended to withdraw his waiver and invoke his right to remain silent, he would not have acquiesced in responding to the officer's further questioning."

See id. at 426 (2) (“defendant’s statement that he should not talk in the absence of ‘real talk’ was insufficient to trigger the interrogating agent’s duty to cease questioning”); Perez v. State, 283 Ga. 196, 200-201 (657 SE2d 846) (2008) (“If Perez had truly intended to withdraw his waiver and invoke his right to remain silent, he would not have acquiesced in responding to the officer’s further questioning.”).


Context: The Ninth Circuit soundly rejected the argument. "The fundamental requirements of procedural due process are notice and an opportunity to be heard before the government may deprive a person of a protected liberty or property interest.

See also Schweiker v. McClure, 456 U.S. 188 [72 L.Ed.2d 1, 102 S.Ct. 1665] (1982) (judicial involvement not required to meet the due process demand of an impartial tribunal).”

'There is no constitutional requirement that the decisionmaker be an uninvolved person when a property interest protected by due process is at stake.'

Jordan v. City of Lake Oswego, 734 F.2d 1374, 1376 n. 1 (9th Cir. 1984) (‘There is no constitutional requirement that the decisionmaker be an uninvolved person when a property interest protected by due process is at stake.’); Price v. City of Junction, Texas, 711 F.2d 582, 589 n. 5 (5th Cir. 1983) (‘There is no requirement that the impartial tribunal be a judicial tribunal.’); Stretten v. Wadsworth Veterans Hospital, 537 F.2d 361, 369 n. 18 (9th Cir. 1976) (same).


'There is no requirement that the impartial tribunal be a judicial tribunal.'


Context: Boyd's lowest I.Q. score of 64 is on the upper borderline of mental retardation. We found that Andrews's counsel did not perform deficiently in failing to present the evidence of his low intelligence.

See also Smith v. Black, 904 F.2d 950, 977 (5th Cir,1990)(finding that counsel was not deficient for failing to present mitigating evidence of I.Q.’ of 70), vacated on other grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992), aff'd in relevant part, 970 F.2d 1383 (5th Cir.1992); cf. Jones v. Thigpen, 788 F.2d 1101, 1103 (5th Cir.1986)(finding counsel ineffective for failing to present evidence of I.Q. score below 41).

finding that counsel was not deficient for failing to present mitigating evidence of I.Q.' of 70


Context: The obvious purpose of a civil consumer protection action in which a receiver is appointed is protection of the public. The decision to initiate a civil consumer protection action is closely analogous to. a prosecutor's discretionary decision to initiate a criminal proceeding.

See Brewer v. Hill, 453 F.Supp. 67, 69 (N.D.Tex.1978) (attorney general and his deputies were entitled to absolute prosecutorial immunity for bringing civil deceptive trade practices consumer protection action because the reasons for affording immunity “are the same as if the Attorney General or one of his deputies had been seeking an indictment and prosecuting a criminal action”); see also Ledwith v. Douglas, 568 F.2d 117, 119 (8th Cir.1978) (attorney general and deputies were entitled to absolute prosecutorial immunity for bringing civil consumer protection action under deceptive trade practices act).

attorney general and his deputies were entitled to absolute prosecutorial immunity for bringing civil deceptive trade practices consumer protection action because the reasons for affording immunity "are the same as if the Attorney General or one of his deputies had been seeking an indictment and prosecuting a criminal action"


Context: In contrast to the purported consent at issue in Bautista, Cooper's consent was not simply the product of compliance with police demands.

explaining that courts have held that consent was not voluntary in "cases in which police have used their position to demand entry"

See Bautista, 362 F.3d at 591-92 (holding that opening the door in response to a police demand and then failing to object when officers entered was not voluntary consent); see also Tobin, 923 F.2d at 1512 (explaining that courts have held that consent was not voluntary in “cases in which police have used their position to demand entry”); United States v. Edmondson, 791 F.2d 1512, 1514-15 (11th Cir.1986) (finding a defendant’s “consent” — opening the door, stepping back, and placing his hands upon his head— involuntary where it was prompted by a number of Federal Bureau of Investigation agents who had surrounded Edmondson’s apartment, drawn their weapons, and knocked on the door yelling, “FBI.


Context: Although this change occurred well before Doe submitted his form, Du-chesne's first affidavit indicates that at least as late as the EEO investigation of Doe's complaint, FMLA forms were still shared with managers and supervisors such as Tahir. These two statements do not necessarily contradict one another, for it seems perfectly possible that medical leave information continued to be shared with relevant managers and supervisors even after Paul Neff assumed responsibility for tracking and processing the requests. In any event, whatever conflict may exist must be resolved at trial, where Doe will have an opportunity to question Duchesne about his two statements.

"Summary judgment is inappropriate when contradictory inferences may be drawn from the evidence."

See Rogers Corp. v. EPA, 275 F.3d 1096, 1103 (D.C.Cir.2002) (“Summary judgment is inappropriate when contradictory inferences may be drawn from the evidence.”); cf. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806-07, 119 S.Ct. 1597, 1603-04, 143 L.Ed.2d 966 (1999) (a nonmoving party cannot defeat summary judgment by submitting, without explanation, an affidavit contradicting a prior sworn statement).


Context: Pa.R.Crim.P. 121. Where a defendant knowingly, voluntarily, and intelligently seeks to waive his right to counsel, the trial court, in keeping with Faretta, must allow the individual to proceed pro se.

See Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1335 (1995) (holding that a defendant must demonstrate a knowing waiver under Faretta).

See also Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504, 508 (2002) (concluding that Faretta requires an on-the-record colloquy in satisfaction of Pa.R.Crim.P. 121, which colloquy may be conducted by the court, the prosecutor, or defense counsel.)


Context: However, if one of the spouses acts as the agent of the non-participating spouse, section 5127 is not violated.

in construing similar Washington "joinder" statute, court states that "[a] community is estopped to deny liability due to the failure of one spouse to join a transaction when one spouse permits the other to conduct the transaction, both have a general knowledge of the transaction, and both are ready to accept the benefits which may come from it."

See Miller v. Johnston, 270 Cal.App.2d 289, 75 Cal.Rptr. 699, 707 n. 6 (1969) (although wife claimed that she could not be bound by a conveyance of community property to which she was not a party, her knowledge of and acquiescence to the conveyance made her bound); see also Colorado Nat. Bank of Denver v. Merlino, 35 Wash.App. 610, 668 P.2d 1304, 1307 (1983) (in construing similar Washington “joinder” statute, court states that “[a] community is estopped to deny liability due to the failure of one spouse to join a transaction when one spouse permits the other to conduct the transaction, both have a general knowledge of the transaction, and both are ready to accept the benefits which may come from it.”).


Context: When analyzing judicial economy, it is proper to consider whether there will be a timely resolution of the matter.

See Krambeck, 451 F.Supp.2d at 1045 (finding factors favoring retention included the trial being less than four months away and obtaining a comparable date in state court was uncertain (citing Hansen, 988 F.Supp. at 1261 (retaining jurisdiction where trial was three months away and it was uncertain whether the state court could accommodate trial in the same time frame))); see also Tinius v. Carroll County Sheriff Dep’t, No. C03-3001, 2004 WL 2943846, at *3 (N.D.Iowa Dec.17, 2004) (finding uncertain availability of comparable trial date in state court a factor favoring exercise of jurisdiction). In the present case, judicial economy weighs against retaining supplemental jurisdiction because it is uncertain when a federal court trial will be scheduled, and the state district court has already set a May 2008 trial date.


retaining jurisdiction where trial was three months away and it was uncertain whether the state court could accommodate trial in the same time frame


Context: Lastly, to establish a money-laundering conspiracy "the government must prove (1) that two or more persons conspired to commit the crime of money laundering, and (2) that the defendant knowingly and voluntarily joined the conspiracy." There was ample proof that a money-laundering conspiracy existed, and the evidence was sufficient to lead a rational juror to conclude that Proge conducted or attempted to conduct a financial transaction knowing that it involved the proceeds of drug trafficking and with intent to promote the drug trafficking.

noting that the "paradigmatic example" of promotional money laundering is a drug dealer using the proceeds of a drug transaction to purchase additional drugs

United States v. Skinner, 690 F.3d 772, 782 (6th Cir. 2012) (finding evidence sufficient where defendant “knowingly and routinely transported drug proceeds in furtherance of the drug-trafficking conspiracy”); see United States v. Kelso, 468 Fed.Appx. 551, 555 (6th Cir. 2012) (noting that the “paradigmatic example” of promotional money laundering is a drug dealer using the proceeds of a drug transaction to purchase additional drugs).

finding evidence sufficient where defendant "knowingly and routinely transported drug proceeds in furtherance of the drug-trafficking conspiracy"


Context: In the realm of domestic relations litigation, matters which do not bear on a debtor's economic status, such as the dissolution of the marital relationship, are not stayed by a bankruptcy court.

reviewing legislative history of SS 362 indicating that divorce or child custody proceedings involving debtor may bear no relation to bankruptcy case.

In re Schock, 37 B.R. 399, 400 (Bankr: D.N.D.1984) (determining that divorce petitions are not stayed by § 362 of the Code); see also In re General Oil Distributors, Inc., 33 B.R. 717, 718 (Bankr.E.D.N.Y.1983) (reviewing legislative history of § 362 indicating that divorce or child custody proceedings involving debtor may bear no relation to bankruptcy case.)

determining that divorce petitions are not stayed by SS 362 of the Code


Context: In some ways, the claims made by plaintiffs here parallel those made in Clinton: that the Constitution vested power in the legislative branch as a necessary check on the power of the executive branch, and that Congress is not free to upset the careful balance by giving power to the executive.

"The Constitution's division of power among the three branches is violated where one branch invades the territory of another, whether or not the encroached-upon branch approves the encroachment."

See 524 U.S. at 452, 118 S.Ct. 2091 (Kennedy, J., concurring) (“That a congressional cession of power is voluntary does not make it innocuous.... Abdication of responsibility is not part of the constitutional design.”); cf. New York v. United States, 505 U.S. 144, 182, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (“The Constitution’s division of power among the three branches is violated where one branch invades the territory of another, whether or not the encroached-upon branch approves the encroachment.”).

"That a congressional cession of power is voluntary does not make it innocuous.... Abdication of responsibility is not part of the constitutional design."


Context: The First Circuit's approach in Doe suggests that to trigger the elevated arbitrary and capricious standard, focused on reasonableness, it is sufficient to simply point out a conflict of interest that exists where the plan administrator is also the insurer that would be paying out any benefits ultimately awarded. The Doe Court was careful not to explicitly overrule Doyle, construing that case as holding that the plan administrator-insurer's interest in denying claims that would cost it money did not justify de novo review.

"Consistent with Doyle, 144 F.3d at 184, we do not think that [the plan fiduciary's] general interest in conserving its resources is the kind of conflict that warrants de novo review"

(“Consistent with Doyle, 144 F.3d at 184, we do not think that [the plan fiduciary’s] general interest in conserving its resources is the kind of conflict that warrants de novo review”) In light of Doe, this Court finds that the governing standard of review in the case at bar, where MetLife operated as both the plan administrator and the insurer that would be responsible for paying Cortés’ LTD benefits, is the elevated arbitrary and capricious standard, with an emphasis on reasonableness. See id.; see also Terry, 145 F.3d at 36 n. 6 (noting that reasonableness is the touchstone when applying deferential standard of review).


Context: This possibility, though not a certainty, is sufficient to meet the redressability requirement. See Motor & Equip. Mfrs.

"redressability element ... does not prevent a court from hearing a case which may ultimately be unsuccessful"

Ass’n v. Nichols, 142 F.3d 449, 457-58 (D.C.Cir.1998) (redressability satisfied because court’s decision to vacate EPA rule would give petitioner opportunity for favorable outcome in new rulemaking); see also Community Nutrition Institute v. Block, 698 F.2d 1239, 1249 (D.C.Cir.1983) (“redressability element ... does not prevent a court from hearing a case which may ultimately be unsuccessful”), rev’d on other grounds, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984).

redressability satisfied because court's decision to vacate EPA rule would give petitioner opportunity for favorable outcome in new rulemaking


Context: Courts have routinely affirmed agencies' strict application of internal regulatory deadlines.

finding that NTSB did not act arbitrarily and capriciously in applying its strict procedural regulation regarding filing deadlines to dismiss complainant's appeal for failing to file a timely appellate brief or request an extension of time before expiration of the filing deadline

See, e.g., Gilbert, 80 F.3d at 368 (finding that NTSB did not act arbitrarily and capriciously in applying its strict procedural regulation regarding filing deadlines to dismiss complainant’s appeal for failing to file a timely appellate brief or request an extension of time before expiration of the filing deadline); see also Tinker Air Force Base v. FLRB, 321 F.3d 1242, 1246 (10th Cir.2002) (“[T]he general rule is well established that reviewing courts will not overturn an agency’s strict application of its own procedural regulations so long as the rule is applied uniformly or with reasoned distinctions.”).

"[T]he general rule is well established that reviewing courts will not overturn an agency's strict application of its own procedural regulations so long as the rule is applied uniformly or with reasoned distinctions."


Context: Indeed, the Supreme Court recently noted that an isolated incident can amount to a "discriminatory changef] in the 'terms and conditions of employment' " when the incident is "extremely serious." Other circuits have come to a similar conclusion.

"[Although this single incident was insufficient, we do not] hold that a single incident of harassment never will support an actionable claim."

See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.1995) (noting that “even a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment for purposes of Title VII liability”); Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464 (7th Cir.1990) (holding that a single incident where supervisor picked up plaintiff and forced her face against his crotch impliedly considered to create hostile environment); cf. DiCenso v. Cisneros, 96 F.3d 1004, 1009 (7th Cir.1996) (“[Although this single incident was insufficient, we do not] hold that a single incident of harassment never will support an actionable claim.”).

noting that "even a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for purposes of Title VII liability"


holding that a single incident where supervisor picked up plaintiff and forced her face against his crotch impliedly considered to create hostile environment


Context: When the policy means to refer to defense costs ... it expressly does so, avoiding the confusion that is [the insurer's] downfall here"). In other words, IICNA's "plain language" argument fails.

finding an insurance policy obligating a primary insurer to indemnify for "damages" which were defined to include "costs, charges and expenses" not to be a DWL or "self-reducing" policy

See also Branning v. CNA Ins. Cos., 729 F.Supp. 728, 732-33 (W.D.Wash.1989) (finding policy ambiguous as to whether defense costs were included within liability limit, “in the absence of any clear statement that defense costs are included within the cap,” and commenting “[i]f [the insurer] intended the ‘limit of liability’ to apply to all losses, rather than only the amounts needed to resolve claims against the insureds, it would have been a simple matter for [the insurer] to have made that clear”); cf. International Ins. Co. v. Imperial Cas. & Indem. Co., 1992 WL 547721 (C.D.Cal.1992) (finding an insurance policy obligating a primary insurer to indemnify for “damages” which were defined to include “costs, charges and expenses” not to be a DWL or “self-reducing” policy).

finding policy ambiguous as to whether defense costs were included within liability limit, "in the absence of any clear statement that defense costs are included within the cap," and commenting "[i]f [the insurer] intended the 'limit of liability' to apply to all losses, rather than only the amounts needed to resolve claims against the insureds, it would have been a simple matter for [the insurer] to have made that clear"


Context: Under the Supreme Court's equal protection jurisprudence, however, wealth is generally not a suspect classification.

striking down a property ownership requirement for school board membership, because the the requirement was violative of the "constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications"

But see, Turner v. Fouche, 396 U.S. 346, 362, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) (striking down a property ownership requirement for school board membership, because the the requirement was violative of the “constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications”); Quinn v. Millsap, 491 U.S. 95, 109, 109 S.Ct. 2324, 105 L.Ed.2d 74 (1989) (citing Turner, at 364, 90 S.Ct. 532, and holding that the government cannot require property ownership as a prerequisite to running for and holding public office).

stating that the Court "has never held that financial need alone identifies a suspect class for purposes of equal protection analysis."

See, e.g., Maher v. Roe, 432 U.S. 464, 471, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) (stating that the Court “has never held that financial need alone identifies a suspect class for purposes of equal protection analysis.”).


Context: Other district courts in this Circuit have found allegations of control sufficient in similar circumstances.

"As either a member of Solucorp's senior management or a director with access to information regarding Solucorp's day-to-day business, the individual defendants are alleged to have had the power and influence to cause Solu-corp to engage in the alleged fraudulent conduct."

See, e.g., In re Leslie Fay, 918 F.Supp. at 763 (finding allegations of control sufficient in the case of outside directors who held 12% of stock and signed public disclosure documents that allegedly contained misrepresentations); Robbins v. Moore Medical Corp., 788 F.Supp. 179, 188 (S.D.N.Y.1992) (finding allegations of control sufficient as against defendants who were directors or officers and signed company statements that were allegedly misleading); see also In re Solucorp Indus., Ltd., No. 98 Civ. 3248, 2000 WL 1708186, at *7 (S.D.N.Y. Nov. 15, 2000) (“As either a member of Solucorp’s senior management or a director with access to information regarding Solucorp’s day-to-day business, the individual defendants are alleged to have had the power and influence to cause Solu-corp to engage in the alleged fraudulent conduct.”).


finding allegations of control sufficient as against defendants who were directors or officers and signed company statements that were allegedly misleading


Context: We note that we have summarily affirmed application of R.C.M. 305 to restriction tantamount to confinement without specifically finding physical restraint.

suggesting that there may be "cases where the conditions of restriction are exactly like confinement" and that the requirement for a probable cause hearing under R.C.M. 305 may apply

See also United States v. King, 58 M.J. 110, 115 n. 4 (C.A.A.F.2003). Cf. United States v. Perez, 45 M.J. at 324 (suggesting that there may be “cases where the conditions of restriction are exactly like confinement” and that the requirement for a probable cause hearing under R.C.M. 305 may apply).

"it appears that the Court of Military Review correctly concluded that restriction tantamount to confinement is a form of confinement to which R.C.M. 305 ... applies."

Gregory, 23 M.J. at 246 (“it appears that the Court of Military Review correctly concluded that restriction tantamount to confinement is a form of confinement to which R.C.M. 305 ... applies.”).


Context: Contrary to taxpayers' contention, the notice of deficiency was valid because it was sent to taxpayers' last known address.

explaining that the last known address is the one "on [the taxpayer's] most recent return, unless the taxpayer communicates to the IRS clear and concise notice of a change of address"

See 26 U.S.C. § 6212(b)(1); Williams v. Comm’r, 935 F.2d 1066, 1067 (9th Cir. 1991) (“A notice of deficiency is valid if it is mailed to the taxpayer’s last known address even if it is not received by the taxpayer.”); see also United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984) (explaining that the last known address is the one “on [the taxpayer’s] most recent return, unless the taxpayer communicates to the IRS clear and concise notice of a change of address”). We reject as without merit taxpayers’ contentions that the notice of deficiency was not valid because it was not mailed to their power of attorney, and that the issuance of the deficiency notice deprived taxpayers of their day in court.

"A notice of deficiency is valid if it is mailed to the taxpayer's last known address even if it is not received by the taxpayer."


Context: Waiver has been found where juror misconduct was only alleged, as in the Koenigs' case. Waiver has also been found where there was actual misconduct.

"a defendant cannot learn of juror misconduct during the trial, gamble on a favorable verdict by remaining silent, and then complain in a post-verdict motion that the verdict was prejudicially influenced by that misconduct"

See, e.g., United States v. Gootee, 34 F.3d 475-479 (7th Cir.1994) (finding defendant waived claim of juror misconduct by not bringing it to the court’s attention at the time he became aware of it) (citing United States v. Bolinger, 837 F.2d 436, 438-39 (11th Cir.1988) (same), cert. denied sub nom. De La Fuente v. United States, 486 U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988)); United States v. Jones, 597 F.2d 485, 488 n. 3 (5th Cir.1979) (“a defendant cannot learn of juror misconduct during the trial, gamble on a favorable verdict by remaining silent, and then complain in a post-verdict motion that the verdict was prejudicially influenced by that misconduct”), cert. denied, 444 U.S. 1043, 100 S.Ct. 729, 62 L.Ed.2d 728 (1980); see also 96 A.L.R. 530 (1935) (“The general rule is that misconduct on the part of anyone in connection with the jury after their retirement, although it be of a character which might vitiate the verdict if brought to the attention of the court by timely complaint, is not available after the return of the verdict, as a ground for a new trial or reversal, where it was known to the defendant or his counsel before the return of the verdict.”).

"The general rule is that misconduct on the part of anyone in connection with the jury after their retirement, although it be of a character which might vitiate the verdict if brought to the attention of the court by timely complaint, is not available after the return of the verdict, as a ground for a new trial or reversal, where it was known to the defendant or his counsel before the return of the verdict."


Context: Even from that time in 1994 to mid-1995, when Senior's and John IPs relationship arguably had improved, Senior expressed his dissatisfaction with John II to his attorney and also told the Age Wise worker Gordon that John II invited him to coffee only to get Senior to pay for it. Given the history of the stormy relationship between Senior and John II and the details of the argument between them on August 4 that culminated with Senior ordering John II from his house, it would be difficult to say that there was an "unexplained" change in Senior's attitude toward John II that can be attributed to Taylor's influence.

testator's "drastic change" in attitude toward new beneficiary and previous beneficiary shortly before will was executed was indicative of new beneficiary's dominance over testator

Compare Sangster, 144 Or App at 217-18 (testator who underwent an “extreme change in attitude” toward the grandchildren to whom she intended to leave her estate up until the last month of her life was under “undue influence”); cf. Knutsen, 124 Or App at 309 (testator’s “drastic change” in attitude toward new beneficiary and previous beneficiary shortly before will was executed was indicative of new beneficiary’s dominance over testator).

testator who underwent an "extreme change in attitude" toward the grandchildren to whom she intended to leave her estate up until the last month of her life was under "undue influence"


Context: Although this court has not previously addressed tolling requirements in relation to the IAD, we find persuasive the analysis and interpretation of the courts that held that delay occasioned by the defendant is excludable, particularly in light of recent application of speedy trial provisions to IAD cases by Pennsylvania courts.

applying speedy trial provisions to the IAD in holding that defendant's continued presence in federal custody constitutes an inability to stand trial, thereby tolling the statute

See e.g., Commonwealth v. Woods, 444 Pa.Super. 321, 663 A.2d 803 (Pa.Super.1995)(applying speedy trial provisions to the IAD in holding that defendant’s continued presence in federal custody constitutes an inability to stand trial, thereby tolling the statute).

holding that the speedy trial provision is tolled when a defendant's pretrial motion is pending

Cf. Commonwealth v. Riffert, 379 Pa.Super. 1, 549 A.2d 566 (Pa.Super.1988), alloc. denied, 522 Pa. 602, 562 A.2d 825 (Pa.1989)(holding that the speedy trial provision is tolled when a defendant’s pretrial motion is pending). The Woods court determined that the IAD is consistent with the speedy trial provisions of Pa.R.Crim.P. 1100.


Context: The more difficult inquiry involves the second factor. Aronov instructs that "there must be judicial approval of the relief vis-a-vis the merits of the case."

"individual may be entitled to attorney's fees" without obtaining final judgment after a trial on the merits "but he must obtain relief based 1 "on the merits of at least some of his claims," ' "

Aronov v. Napolitano, 562 F.3d at 90. Similar merits based language, see Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987) (“respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail”); accord Buckhannon, 532 U.S. at 603-604, 121 S.Ct. 1835 (quoting Hewitt); Richardson v. Miller, 279 F.3d at 3 (quoting Hewitt ); see Race v. Toledo-Davila, 291 F.3d 857, 859 (1st Cir.2002) (“individual may be entitled to attorney’s fees” without obtaining final judgment after a trial on the merits “but he must obtain relief based 1 “on the merits of at least some of his claims,” ’ ”), favors defendant’s position that there was no judicial imprimatur on the change in the parties’ legal relationship.

"respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail"


Context: Thus, there was no possibility that the jury's SS 924(c) verdict rested only on a Hobbs Act robbery predicate because (1) the robbery was an act inextricably intertwined with and, indeed, in furtherance of the charged narcotics conspiracy, and (2) the jury found that narcotics conspiracy proved beyond a reasonable doubt. In these circumstances, where a challenged SS 924 verdict undoubtedly rests on a valid drug-trafficking predicate, no Yates concern arises from a possible defect in a related "crime of violence" predicate.

See United States v. Zvi, 168 F.3d 49, 55-56 (2d Cir. 1999) (rejecting Yates challenge where time-barred money-laundering predicate implicitly required finding of valid wire-fraud predicate); see also United States v. Coppola, 671 F.3d 220, 237-38 (2d Cir. 2012) (holding any Yates error harmless where predicates rested on same ex-tortive acts of which jury found defendants guilty). '


Context: The district court properly dismissed Smith's First Amendment free association claims because the prison's classification of Smith reasonably related to legitimate pe-nological interests and Smith's complaint indicates that he has associated with the gang in the past.

"It is clear ... that prisons have a legitimate penological interest in stopping prison gang activity."

See Stefanow v. McFadden, 103 F.3d 1466, 1472 (9th Cir.1996) (prison actions affecting First Amendment rights are permissible when reasonably related to legitimate interest of prison security); see also Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir.2003) (“It is clear ... that prisons have a legitimate penological interest in stopping prison gang activity.”).


Context: . A number of district courts have addressed the issue as well and concur with the Second and Fifth Circuit's holdings.

holding that general maritime and unseaworthiness claims brought in state court are removable to federal court only if they constitute "separate and independent" claims or causes of action in relation to the non-removable Jones Act claim

See In re Waterman Steamship Corp., 1992 WL 124819 (E.D.La.)(holding that although claims asserted under the general maritime law of unseaworthiness are removable when diversity exists, they cannot be removed when combined with a claim under the Jones Act); See also Lonthier v. Northwest Ins. Co., 599 F.Supp. 963 (W.D.La.1985)(holding that general maritime and unseaworthiness claims brought in state court are removable to federal court only if they constitute "separate and independent” claims or causes of action in relation to the non-removable Jones Act claim); See also Iwag v. Geisel Compania Maritima, 882 F.Supp. 597, 605 (S.D.Tx.1995)(holding that joinder of a non-removable Jones Act claim, with a removable claim under general maritime law that is not separate and independent, is not grounds for removal).


holding that joinder of a non-removable Jones Act claim, with a removable claim under general maritime law that is not separate and independent, is not grounds for removal


Context: However, at least one other Circuit has concluded that erroneous admission of evidence in violation of Rule 701(c) is, like other erroneous evidentiary rulings, reviewed under the "harmless error" standard. Moreover, we have consistently held that erroneous evidentia-ry rulings, including rulings regarding expert testimony, are reviewed under the "harmless error" standard.

district court's erroneous conclusion that a witness was not qualified as an expert reviewed under the "harmless error" standard

See Parker v. Reda, 327 F.3d 211, 213 (2d Cir.2003) (“This Court will order a new trial only if the introduction of inadmissible evidence was a clear abuse of discretion and was so clearly prejudicial to the outcome of the trial that we are convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” (quotations omitted)); Hygh v. Jacobs, 961 F.2d 359, 364-65 (2d Cir.1992) (erroneous admission of expert testimony reviewed under the “harmless error” standard); cf. United States v. Diallo, 40 F.3d 32, 35 (2d Cir.1994) (district court’s erroneous conclusion that a witness was not qualified as an expert reviewed under the “harmless error” standard).

erroneous admission of expert testimony reviewed under the "harmless error" standard


Context: What this case comes down to, then, is whether the IJ made an explicit adverse credibility finding before denying Ikama-Obambi's application due to lack of corroborating evidence. Ikama-Obambi argues that the IJ failed to do so. To make such a credibility determination, an IJ must provide more than "a passing reference implying doubt."

holding that an IJ failed to make explicit credibility flnd- ing when he described applicant's testimony as "general" and "meager," making his demand for corroborating evidence improper

Diallo v. Gonzales, 439 F.3d 764, 766 (7th Cir.2006) (citations and quotations omitted) (holding that an IJ failed to make explicit credibility flnd- ing when he described applicant’s testimony as “general” and “meager,” making his demand for corroborating evidence improper); see also Nakibuka v. Gonzales, 421 F.3d 473, 478-79 (7th Cir.2005) (holding that an IJ failed to make explicit credibility finding when he remarked that applicant’s testimony was “vague and confusing” as well as “exaggerated”); Soumahoro v. Gonzales, 415 F.3d 732, 736 (7th Cir.2005) (holding that an IJ failed to make explicit credibility finding when he made passing remark that he “disbelieved” applicant’s testimony); but see Hussain v. Gonzales, 424 F.3d 622, 628-630 (7th Cir.2005) (holding that an IJ made an explicit credibility when the IJ found testimony not credible based on several enumerated inconsistencies).

holding that an IJ failed to make explicit credibility finding when he remarked that applicant's testimony was "vague and confusing" as well as "exaggerated"


holding that an IJ failed to make explicit credibility finding when he made passing remark that he "disbelieved" applicant's testimony


holding that an IJ made an explicit credibility when the IJ found testimony not credible based on several enumerated inconsistencies


Context: Here, the issue the jury was called upon to decide was whether a reasonable person in Hanna's position would foresee that his communications would be perceived by those to whom he communicated as serious expressions of intent to harm the President. Without additional assistance, the average layperson is qualified to determine what a "reasonable person" would foresee under the circumstances.

expert testimony on whether defendant accused of making threats was actually a threat to victim was properly excluded because it was "not probative of the issue of whether a reasonable recipient, knowing what she knew about the writer of the letters, would have interpreted them as a threat"

See United States v. Whitfield, 31 F.3d 747, 749 (8th Cir.1994) (expert testimony on whether defendant accused of making threats was actually a threat to victim was properly excluded because it was “not probative of the issue of whether a reasonable recipient, knowing what she knew about the writer of the letters, would have interpreted them as a threat”); cf. Torres v. Johnson Lines, 932 F.2d 748, 751 (9th Cir.1991) (expert testimony properly excluded where record did not reveal “any specific evidence that was so technical or complex that a jury could not have grasped it without the aid of experts”); Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir.1990) (in copyright infringement case, expert testimony not appropriate for determining whether a reasonable person would find similarity between artistic works).

expert testimony properly excluded where record did not reveal "any specific evidence that was so technical or complex that a jury could not have grasped it without the aid of experts"


in copyright infringement case, expert testimony not appropriate for determining whether a reasonable person would find similarity between artistic works


Context: The defendants muster no support for this claim. Perhaps that is because we have already implicitly rejected this argument.

"[T]he amount of criminal restitution is determined by the judge, whereas a suit for damages is a suit at law within the [Seventh] [Amendment's meaning."

See United States v. Scott, 405 F.3d 615, 619 (7th Cir.2005) (“[T]he amount of criminal restitution is determined by the judge, whereas a suit for damages is a suit at law within the [Seventh] [Amendment’s meaning.”); see also Kelly, 479 U.S. at 53 n. 14, 107 S.Ct. 353 (noting the uniformity among lower courts in finding the Seventh Amendment inapplicable to restitution orders in the context of the federal Victim and Witness Protection Act).


Context: Nor can the County of Monmouth be said to control Prosecutor Kaye's employment decisions. Indeed, attempts by various parties to interfere with county prosecutors' employment prerogatives have been rejected consistently by New Jersey courts.

county board of chosen freeholders' appointment of a legal assistant to prosecutor beyond the scope of its powers

See Cetrulo v. Byrne, 31 N.J. 320, 157 A.2d 297 (1960) (county board of chosen freeholders’ appointment of a legal assistant to prosecutor beyond the scope of its powers); Zamboni v. Stamler, 199 N.J.Super. 378, 489 A.2d 1169 (App.Div.1985) (rejecting Union County detectives’ challenge to a reorganization plan that created superior officer positions within the unclassified civil service of the Prosecutor’s investigative staff and enabled the Prosecutor to appoint detectives to serve temporarily in that capacity); cf. Bergen County Bd. of Chosen Freeholders v. Bergen County Prosecutor, 172 N.J.Super. 363, 412 A.2d 130 (App.Div.1980) (upholding decision of the New Jersey Public Employment Relations Commission that the county prosecutor, and not the board of chosen freeholders, is the employer of his subordinates in the county office for purposes of labor relations and collective bargaining).


rejecting Union County detectives' challenge to a reorganization plan that created superior officer positions within the unclassified civil service of the Prosecutor's investigative staff and enabled the Prosecutor to appoint detectives to serve temporarily in that capacity


Context: . There are no published cases which provide guidance on the meaning of "owner" under the state regulations, as applied to property managers. The only published opinions on ownership are not particularly helpful here.

imposing civil liability on an owner's wife where she was identified as the landlord on the lease, had joined with her husband in mortgaging the property, and was listed as the record owner in a UCC statement recorded at the county registry of deeds

Roman v. Friedland, 849 F.Supp. 827 (D.Mass.1994) (imposing civil liability on an owner’s wife where she was identified as the landlord on the lease, had joined with her husband in mortgaging the property, and was listed as the record owner in a UCC statement recorded at the county registry of deeds); Cf. Commonwealth v. Advantage Bank, 406 Mass. 885, 887, 550 N.E.2d 1388, 1390 (1994) (no criminal sanctions on bank which was a mortgagee not yet in physical possession).


Context: "This Court cannot impose its own independent judgment on an issue of credibility to overrule the decision of a court that had the opportunity to view Petitioner's testimony first-hand." Likewise, the court is in no position to find error in the state appellate court's refusal to re-examine questions of credibility, especially where (as here) petitioner has failed to proffer clear and convincing evidence that the state court should have adopted his version of the facts.

See 28 U.S.C. § 2254(e); Rushen v. Spain, 464 U.S. 114, .121 n. 6, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (explaining that the state courts’ determinations about witness credibility and inferences to be drawn from the testimony were binding on the federal district court); see also Lile v. McKune, 45 F.Supp.2d 1157, 1161 (D.Kan. 1999) (explaining that petitioner bears the burden of establishing by convincing evidence that any challenged factual determination is erroneous, and that factual issues include the recital of events and the credibility of the narrators).

explaining that the state courts' determinations about witness credibility and inferences to be drawn from the testimony were binding on the federal district court


Context: Once a defendant establishes a basis for a motion to suppress, the Government must prove that the admissibility of any disputed evidence is proper by a preponderance of the evidence.

stating that "the burden of showing admissibility [of seized items or statements by a defendant] rests, of course, on the prosecution"

See, Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (stating that “the burden of showing admissibility [of seized items or statements by a defendant] rests, of course, on the prosecution”); United States v. Matlock, 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (stating that “the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence”); see also United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir.1983) (noting that the government bears the burden of proof by a preponderance of the evidence at a suppression hearing).


stating that "the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence"


Context: We agree with those courts that "have relied upon the express provisions of plans of reorganization that confer the right to bring particular kinds of actions on a particular party in concluding that that party has been appointed for SS 1123 purposes."

plan provided that debtors retained all causes of action against third parties including actions under SSSS 547, 550

Amarex, 96 B.R. at 334 (plan provided that all claims for return of preference payments or fraudulent transfers were preserved and retained for enforcement by reorganized debtor); see also Kroh Bros. Development Co. v. United Missouri Bank (In re Kroh Bros. Development Co.), 100 B.R. 487, 497 (Bankr.W.D.Mo.1989) (appointment under § 1123 does not require “magic words,” but record was “replete” with proceedings recognizing that party in question would become a representative of the estate); Tennessee Wheel & Rubber Co. v. Captron Corporate Air Fleet (In re Tennessee Wheel & Rubber Co.), 64 B.R. 721, 723 (Bankr.M.D.Tenn.1986) (plan designated post-confirmation representative of the estate specifically to recover assets under §§ 547, 548); Xonics, Inc. v. E & F King & Co. (In re Xonics), 63 B.R. 785, 786 (Bankr.N.D.Ill.1986) (plan provided that debtors retained all causes of action against third parties including actions under §§ 547, 550); Perlstein v. Saltzstein (In re AOV Indus., Inc.), 62 B.R. 968, 970 n. 1 (Bankr.D.D.C.1986) (plan provided that upon confirmation “the Debtors shall assign to the Disbursing Agent their powers under Sections 547 and 548 of the Bankruptcy Code”).


Context: In sum, even analyzing the provision under the more lenient confidentiality agreement standard, the provision is unenforceable under Indiana law because it is overly broad and unreasonable in light of the interests sought to be protected, and thus, is a restraint of trade that violates public policy.

noting that Indiana has "a public policy against contracts that unreasonably restrain trade."

See Austin, 466 N.E.2d at 744 (“[W]hatever restraint is larger than necessary for the protection of the party, is void, as being injurious to the interests of the party.”); see also Dearborn, 486 F.Supp.2d at 816 (noting that Indiana has “a public policy against contracts that unreasonably restrain trade.”); Fumo v. Med. Grp. of Mich. City, Inc., 590 N.E.2d 1103, 1109 (Ind.Ct.App.1992).

"[W]hatever restraint is larger than necessary for the protection of the party, is void, as being injurious to the interests of the party."


Context: In sum, we conclude that, as a general rule, a defendant who has agreed "[t]o waive knowingly and expressly all rights, conferred by 18 U.S.C. SS 3742, to appeal whatever sentence is imposed," J.A. 66, has waived his right to appeal a restitution order.

implicitly finding that a defendant who waives the "right to appeal her sentence on [the] grounds [listed in 18 U.S.C.A. SS 3742(a

See United States v. Broughton-Jones, 71 F.3d 1143, 1146-47 (4th Cir.1995) (implicitly finding that a defendant who waives the “right to appeal her sentence on [the] grounds [listed in 18 U.S.C.A. § 3742(a) ]” is deemed to have waived the right to appeal a lawfully imposed restitution order); see also United States v. Sharp, 442 F.3d 946, 948-52 (6th Cir.2006) (dismissing appeal of restitution order where defendant waived the right “to appeal the conviction or sentence in this case, including the appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or sentence collaterally,” but reserved the right to appeal a punishment in excess of the statutory maximum and an upward departure from the most applicable sentencing guidelines range, because restitution fell under neither exception); United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir.2000) (concluding that “[a]n agreement waiving appeal from ‘any sentence within the maximum provided by Title 18’ or similar language would foreclose [an appeal from the restitution order]”); but see United States v. Phillips, 174 F.3d 1074, 1075-76 (9th Cir.1999) (finding no waiver of right to appeal restitution where defendant “knowingly and voluntarily waive[d][his] right to appeal any sentence and restitution order imposed by the Court and the manner in which the Court determine[d][his] sentence and restitution order, so long as the sentence is up to a net offense level of 12 following an adjustment for acceptance of responsibility,” because the plea agreement contained no cap on restitution and the plea agreement was ambiguous as to the amount of damages the defendant might owe); United States v. Cupit, 169 F.3d 536, 539 (8th Cir.1999) (per curiam) (considering challenge to restitution order despite defendant’s agreement to “waive all rights to appeal whatever sentence is imposed,” expressly declining to “resolve the waiver of restitution issue in this case”); United States v. Ready, 82 F.3d 551, 559-60 (2d Cir.1996) (concluding that defendant did not waive his right to appeal a restitution order despite his “admittedly broad [ Jwaiver of right to appeal ‘whatever sentence is imposed’ ” because the terms of the plea agreement were ambiguous as to whether “sentence” included “restitution”).

dismissing appeal of restitution order where defendant waived the right "to appeal the conviction or sentence in this case, including the appeal right conferred by 18 U.S.C. SS 3742, and to challenge the conviction or sentence collaterally," but reserved the right to appeal a punishment in excess of the statutory maximum and an upward departure from the most applicable sentencing guidelines range, because restitution fell under neither exception


concluding that "[a]n agreement waiving appeal from 'any sentence within the maximum provided by Title 18' or similar language would foreclose [an appeal from the restitution order]"


finding no waiver of right to appeal restitution where defendant "knowingly and voluntarily waive[d][his] right to appeal any sentence and restitution order imposed by the Court and the manner in which the Court determine[d][his] sentence and restitution order, so long as the sentence is up to a net offense level of 12 following an adjustment for acceptance of responsibility," because the plea agreement contained no cap on restitution and the plea agreement was ambiguous as to the amount of damages the defendant might owe


considering challenge to restitution order despite defendant's agreement to "waive all rights to appeal whatever sentence is imposed," expressly declining to "resolve the waiver of restitution issue in this case"


concluding that defendant did not waive his right to appeal a restitution order despite his "admittedly broad [ Jwaiver of right to appeal 'whatever sentence is imposed' " because the terms of the plea agreement were ambiguous as to whether "sentence" included "restitution"


Context: Hence, on remand, the court should focus on the mutual intent of the parties in an effort to determine whether the property-settlement agreement was intended to encompass life insurance. Any inequities occasioned by the non-disclosure of the insurance asset in the marital settlement may be remedied by the familiar principles of matrimonial law.

"where there is a showing of fraud or misconduct by a spouse in failing to disclose the true worth of his or her assets, relief may be granted"

Rosen v. Rosen, 225 N.J.Super. 33, 37, 541 A.2d 716 (App.Div. 1988) (“where there is a showing of fraud or misconduct by a spouse in failing to disclose the true worth of his or her assets, relief may be granted”), certif. denied, 111 N.J. 649, 546 A.2d 558 (1988); see also Carr v. Carr, supra, 120 N.J. at 351, 576 A.2d 872 (“courts’ equitable powers are particularly appropriate in the context of domestic relations”).

"courts' equitable powers are particularly appropriate in the context of domestic relations"


Context: Succinctly stated, the Board's denial of benefits should be set aside and the matter remanded for the Board to determine, in the first instance, if the use of topical corticosteroids in this case was "required" immunosuppressive therapy within the meaning of DC 7806. To do otherwise is unwarranted and unwise.

remand, and not reversal, is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"

See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand, and not reversal, is appropriate “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”); see also Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed.Cir.2013) (“[W]here the Board has performed the necessary-fact-finding and explicitly weighed the evidence, the Court of Appeals for Veterans Claims should reverse when, on the entire evidence, it is left with the definite and firm conviction that a mistake has been committed.”); see also Merck Manual at 647.

"[W]here the Board has performed the necessary-fact-finding and explicitly weighed the evidence, the Court of Appeals for Veterans Claims should reverse when, on the entire evidence, it is left with the definite and firm conviction that a mistake has been committed."


Context: The fact that Sunbelt Beverage's error was so glaring reinforces our conclusion that the information Sunbelt Beverage provided was sufficient to trigger the default three-year statute of limitation. The substantial disparity in this case between Sunbelt Beverage's gross national income and the $12,000 income limit should have alerted OTR to a potential filing error and a need to calculate some amount of business franchise tax. We see no need to readjust the balance of Sunbelt Beverage's interest in repose and OTR's need for time to discern tax liability in a situation where the error was likely to be caught with cursory review.

"An examiner needs more time for an audit when errors are latent, to be discovered only by digging into books and vouchers, than when errors are apparent upon a bare inspection of the record."

See Zellerbach, 293 U.S. at 182, 55 S.Ct. 127 (“An examiner needs more time for an audit when errors are latent, to be discovered only by digging into books and vouchers, than when errors are apparent upon a bare inspection of the record.”); see also Colony, Inc. v. Commissioner, 357 U.S. 28, 36, 78 S.Ct. 1033, 2 L.Ed.2d 1119 (1958) (discussing the extension for 25 percent under-reporting of income — created because Congress recognized in such cases that the government was “at a special disadvantage in detecting errors”).

discussing the extension for 25 percent under-reporting of income -- created because Congress recognized in such cases that the government was "at a special disadvantage in detecting errors"


Context: Choice of law clauses are generally honored in South Carolina.

"When the language of a contract is plain and capable of legal construction, that language alone determines the instrument's force and effect."

Nucor Corp. v. Bell, 482 F.Supp.2d 714, 728 (D.S.C. 2007) (“Generally, under South Carolina choice of law principles, if the parties to a contract specify the law under which the contract shall be governed, the court will honor this choice of law.”); Russell v. Wachovia Bank, N.A., 353 S.C. 208, 221, 578 S.E.2d 329, 336 (2003) (“We hold that a settlor may designate the law governing his trust, and absent a strong public policy reason, or lack of substantial relation to the trust, the choice of law provision will be honored.”); see also Ellis v. Taylor, 316 S.C. 245, 248, 449 S.E.2d 487, 488 (1994) (“When the language of a contract is plain and capable of legal construction, that language alone determines the instrument’s force and effect.”).

"Generally, under South Carolina choice of law principles, if the parties to a contract specify the law under which the contract shall be governed, the court will honor this choice of law."


"We hold that a settlor may designate the law governing his trust, and absent a strong public policy reason, or lack of substantial relation to the trust, the choice of law provision will be honored."


Context: . Younglove does not contend a literal application of the statute gives rise to constitutional concerns. We note that an award of benefits under Iowa's workers' compensation law would not violate the Full Faith and Credit Clause of Article IV, Section 1 of the United States Constitution nor the Due Process Clause of the Fourteenth Amendment as long as Iowa has a significant interest in applying its statute to Henrik-sen's claim.

Smith, Inc., 598 A.2d 176, 177 (Me.1991) (residency of injured employee in Maine gave Maine a sufficient state interest in the subject matter of the employee's claim for workers' compensation benefits so as to satisfy due process); LeBlanc v. United Eng’rs & Constructors, 584 A.2d 675, 677-78 (Me.1991) (same re full faith and credit); Dissell, 511 A.2d at 444-45; Olmstead v. Anderson, 428 Mich. 1, 400 N.W.2d 292, 305 n. 13 (1987); 4 Arthur Larson, The Law on Workmen’s Compensation § 86.00, at 16-48 (1994); see also Garcia v. American Airlines, Inc., 12 F.3d 308, 310 (1st Cir.1993) (more than one state's workers' compensation law may apply to an injuiy if both states have a valid interest in the case).


Context: After jury selection, his street clothes arrived, and he wore them throughout the rest of the trial. Under these circumstances, we conclude that Mr. Akbar's wearing of jail clothes during jury selection was harmless.

See United States v. Hurtado, 47 F.3d 577, 581 (2d Cir.) (even if defendant is made to wear prison clothes at trial, this constitutional error is subject to harmless-error analysis), cert. denied, 516 U.S. 903, 116 S.Ct. 266, 133 L.Ed.2d 188 (1995); cf. United States v. Grady, 997 F.2d 421, 424 (8th Cir.) (on facts very similar to Mr. Akbar’s, concluding under plain-error standard of review that defendant was not denied fair trial), cert. denied, 510 U.S. 958, 114 S.Ct. 416, 126 L.Ed.2d 363 (1993).

on facts very similar to Mr. Akbar's, concluding under plain-error standard of review that defendant was not denied fair trial


Context: . In fact, the BIA has shown a willingness to sua sponte reopen cases where there is evidence that an immigrant's conviction was vacated for substantive or procedural defects.

In re Noel, 2007 WL 2197540, *1 (BIA Jun 29, 2007) (using its sua sponte power to reopen proceedings where the immigrant presented evidence indicating that his conviction was vacated, in part, due to an alleged defect in the proceedings related to his plea bargain.); In re Bworna, 2007 WL 1520877, *1 (BIA May 14, 2007) (holding that "[s]ince the basis for the respondent's order of removal and the denial of relief no longer exists, the respondent has presented exceptional circumstances justifying reopening”); In re Sorokin, 2007 WL 1520791, *1 (BIA May 11, 2007) (same); but see In re Noor, 2007 WL 4699923, *1 (BIA Dec 11, 2007) (refusing to use its sua sponte authority to reopen a case to consider the petitioner’s vacated convictions because under Fifth Circuit precedent all vacated convictions remain valid for immigration purposes regardless of the reason for the vacatur).

refusing to use its sua sponte authority to reopen a case to consider the petitioner's vacated convictions because under Fifth Circuit precedent all vacated convictions remain valid for immigration purposes regardless of the reason for the vacatur


holding that "[s]ince the basis for the respondent's order of removal and the denial of relief no longer exists, the respondent has presented exceptional circumstances justifying reopening"


Context: Before conducting this exercise here, we must dispatch one of Idy's arguments: he says that for an assault-based crime to involve moral turpitude, it must involve a death. But we have squarely rejected this argument before, so it is simply beyond debate that crimes involving moral turpitude are not limited to those causing death.

noting that the petitioner's "good fortune in not ... killing anyone does not change the quality of his actions"

See Nguyen, 211 F.3d at 695 (rejecting the argument that death to another person is a necessary element of a crime involving moral turpitude); see also Knapik v. Ashcroft, 384 F.3d 84, 90 n. 5 (3d Cir.2004) (noting that the petitioner’s “good fortune in not ... killing anyone does not change the quality of his actions”).


Context: First, the police officers plainly had a reasonable belief that Williams might possess a weapon. Williams had a criminal history that suggested not only that he possessed weapons, but also that he was willing to use force, as evidenced by his aggravated robbery conviction and his arrest for discharging a weapon into a home or school. Moreover, Williams was a suspected dealer of crack cocaine and, as Detective Daniel testified at the motion to suppress hearing, in Daniel's experience "the majority of people who traffic, especially in cocaine, own a gun or have a gun ... at their ready." We have often recognized the propensity of drug traffickers to carry firearms.

"We have often recognized that firearms are tools of the drug trade that are commonly kept on the premises of major narcotics dealers"

See United States v. Till, 434 F.3d 880, 884 (6th Cir.2006) (affirming district court’s evidentiary ruling that drugs found in possession of the defendant constituted relevant evidence “because of the propensity of people involved with drugs to carry weapons”); United States v. Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004) (holding admissible police officer’s testimony that firearms are commonly used in drug trafficking); see also United States v. Estrada, 430 F.3d 606, 613 (2d Cir.2005) (“We have often recognized that firearms are tools of the drug trade that are commonly kept on the premises of major narcotics dealers”).

affirming district court's evidentiary ruling that drugs found in possession of the defendant constituted relevant evidence "because of the propensity of people involved with drugs to carry weapons"


holding admissible police officer's testimony that firearms are commonly used in drug trafficking


Context: P 10. Defendant's main argument comes with regard to the fourth factor in Gardner: "the relative importance of the defendant's testimony and the need for impeachment by prior conviction." As we have noted in similar cases in the past, we cannot determine the potential prejudice of such evidence where the defendant has made a "tactical decision" not to present testimony that would give rise to the actual introduction of the allegedly harmful evidence.

"The trial court exercised its discretion appropriately [in allowing prior conviction to be used for impeachment if defendant testified], particularly where defendant failed to make an offer of proof supporting his asserted need to testify in his own defense."

State v. Koveos, 169 Vt. 62, 71, 732 A.2d 722, 728 (1999) (noting that defendant’s series of hypothetical questions to trial court about permissible scope of examination were insufficient to provide for appellate review); cf. Setien, 173 Vt. at 578, 795 A.2d at 1138 (“The trial court exercised its discretion appropriately [in allowing prior conviction to be used for impeachment if defendant testified], particularly where defendant failed to make an offer of proof supporting his asserted need to testify in his own defense.”).

noting that defendant's series of hypothetical questions to trial court about permissible scope of examination were insufficient to provide for appellate review


Context: Courts generally have held that the existence of a direct threat is a defense to be proved by the employer.

"[I]t is a defense to claims under the Rehabilitation Act that an employee may pose a 'direct threat' to the welfare of others."

See Branham v. Snow, 392 F.3d 896, 906 (7th Cir.2004) (burden is on employer to show employee posed a direct threat); Echazabal v. Chevron, U.S.A., Inc., 336 F.3d 1023, 1027 (9th Cir.2003) (burden of establishing direct threat is on employer); see also Taylor v. Rice, 451 F.3d 898, 905-06 (D.C.Cir.2006) (characterizing direct threat as defense); McGeshick, 357 F.3d at 1151 (“[I]t is a defense to claims under the Rehabilitation Act that an employee may pose a ‘direct threat’ to the welfare of others.”). We have recognized an exception to the general rule: “[Wjhere the essential job duties necessarily implicate the safety of others, then the burden may be on the plaintiff to show that she can perform those functions without endangering others.”


Context: Although Hughey involved the preamendment version of the VWPA, courts have extended its analysis to the amended version of that statute. We have approved of this analysis and, because the amended version of the VWPA contains identical language to the MVRA, we have further extended Hughey to the MVRA.

holding that "[t]he conduct underlying the offense of conviction thus stakes out the boundaries of the restitutionary authority" under the MVRA

United States v. Oladimeji, 463 F.3d 152, 158-59 (2d Cir.2006) (holding that the relevant question in imposing restitution under the MVRA is whether the “loss [is] caused by the specific conduct that is the basis of the offense of conviction”); see also United States v. Akande, 200 F.3d 136, 141 (3d Cir.1999) (holding that “[t]he conduct underlying the offense of conviction thus stakes out the boundaries of the restitutionary authority” under the MVRA).

holding that the relevant question in imposing restitution under the MVRA is whether the "loss [is] caused by the specific conduct that is the basis of the offense of conviction"


Context: Daugherty argues that Appellees violated her Fourth Amendment rights, asserting that they unlawfully entered the Swedes Flat Property, where her dogs were found, and searched for the poodles on the property, in the mobile home, and in the barn. We disagree. Appellees were properly on the property pursuant to the open fields doctrine, which stands for the proposition that the Fourth Amendment does not extend to areas, like the grounds at issue here, that are usually accessible to the public.

Oliver v. United States, 466 U.S. 170, 177-79, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (noting that even putting up a fence or a no trespassing sign does not create a legitimate expectation of privacy in open fields); cf. United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (the Fourth Amendment does protect the area harboring the intimate activity associated with the sanctity of a man’s home and the privacies of life).

the Fourth Amendment does protect the area harboring the intimate activity associated with the sanctity of a man's home and the privacies of life


Context: viability of the community[ ] while protecting ... the aesthetics ... and health, safety, and welfare" of the City.

statute's different treatment of commercial speech from non-commercial speech valid where distinction was "relevant to the asserted governmental interest"

See Am. Blast Fax, 323 F.3d at 655 (statute’s different treatment of commercial speech from non-commercial speech valid where distinction was “relevant to the asserted governmental interest”); see also Metromedia, 453 U.S. at 567, 101 S.Ct. 2882 (Burger, C.J., dissenting) (“When a city chooses to impose looser restrictions in one area than it does in another analogous area — even one in which the Constitution more narrowly constrains legislative discretion — it [does not] undermine[] the constitutionality of its regulatory scheme.”).

"When a city chooses to impose looser restrictions in one area than it does in another analogous area -- even one in which the Constitution more narrowly constrains legislative discretion -- it [does not] undermine[] the constitutionality of its regulatory scheme."


Context: As Doe I also acknowledged, the government's asserted interest in seeking to impose a gag on NSL recipients -- protecting the nation's security by preventing terrorism -- is certainly compelling in appropriate circumstances.

"[T]he Government's interest in protecting the integrity of international terrorism and counterintelligence investigations is a compelling one."

See 334 F.Supp.2d at 513 (“[T]he Government’s interest in protecting the integrity of international terrorism and counterintelligence investigations is a compelling one.”); see also Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (“It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964)); Detroit Free Press v. Ashcroft, 303 F.3d 681, 706 (6th Cir.2002) (“The Government certainly has a compelling interest in preventing terrorism.”).

"It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation."


"The Government certainly has a compelling interest in preventing terrorism."


Context: The first criteria is clearly satisfied here. All of the significant issues involved in this case have been resolved as a matter of law. The issues are also controlling and some involve constitutional questions.

See Johnson v. Alldredge, 488 F.2d 820, 822-23 (3d Cir.), cert. denied, 419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974) (questions on immunity, which are purely legal in nature, are appropriate for resolution by way of an interlocutory appeal); Mattioni, supra, at 917 (an issue is controlling where “if erroneous, [it] would be reversible error on final appeal”); cf. Von Bulow by Auersperg v. Von Bulow, 634 F.Supp. 1284, 1312-13 (S.D.N.Y.1986), aff'd, 811 F.2d 136 (2d Cir.), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987) (certification is not appropriate with respect to a ruling which does not involve a question of law but an exercise of discretion).


Context: The United States Court of Federal Claims has "jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. SS 1491(a)(1). The Tucker Act, however, is "only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages." Therefore, in order to come within the jurisdictional reach of the Tucker Act, a plaintiff must identify and plead a constitutional provision, federal statute, independent contractual relationship, and/or executive agency regulation that provides a substantive right to money damages.

"Because the Tucker Act itself does not provide a substantive cause of action, ... a plaintiff must find elsewhere a money-mandating source upon which to base a suit."

See Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (“[Jjurisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act.”); see also Roth v. United States, 378 F.3d 1371, 1384 (Fed.Cir.2004) (“Because the Tucker Act itself does not provide a substantive cause of action, ... a plaintiff must find elsewhere a money-mandating source upon which to base a suit.”).

"[Jjurisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act."


Context: The statute is entitled "Sealing of records," and empowers the court to order "the sealing of files." 33 V.S.A. SS 5119(g). It makes no mention of correcting records or amending later convictions. Had the Legislature intended for the statute to have that effect, it would have included such language.

"[FJinality ... is of vital significance in the administration of criminal justice."

See State v. Boskind, 174 Vt. 184, 191, 807 A.2d 358, 365 (2002) (“Adhering to our [post-conviction relief] procedures safeguards a defendant’s rights while promoting the State’s interest in finality of judgments.”); see also State v. Provencher, 128 Vt. 586, 591, 270 A.2d 147, 150 (1970) (“[FJinality ... is of vital significance in the administration of criminal justice.”).

explaining that it is inappropriate "to expand a statute by implication, that is, by reading into it something which is not there, unless it is necessary in order to make it effective"

See State v. Jacobs, 144 Vt. 70, 75, 472 A.2d 1247, 1250 (1984) (explaining that it is inappropriate “to expand a statute by implication, that is, by reading into it something which is not there, unless it is necessary in order to make it effective”). Furthermore, reading that effect into the statute would interfere with the principle of finality and veer from the principle that substantive review of an enhanced conviction is expressly limited by Vermont law to a collateral attack presented through a petition for post-conviction relief.


"Adhering to our [post-conviction relief] procedures safeguards a defendant's rights while promoting the State's interest in finality of judgments."


Context: Haverda was speaking as a citizen, supporting a candidate during an election, when he submitted his letter to the editor. Letters to the editor, supporting a candidate during a campaign, are a unique form of speech that embody the very essence of the First Amendment and require its full protection.

holding that a teacher's First Amendment rights were violated when the Board of Education dismissed him for sending a letter to newspaper criticizing a proposed tax increase

See Pickering v. Bd. of Educ., 391 U.S. 563, 565, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (holding that a teacher’s First Amendment rights were violated when the Board of Education dismissed him for sending a letter to newspaper criticizing a proposed tax increase); see also Garcetti 547 U.S. at 419, 126 S.Ct. 1951 (“The Court has acknowledged the importance of promoting the public’s interest in receiving the well-informed views of government employees engaging in civic discussion.”); cf. Jordan v. Ector Cnty., 516 F.3d 290, 295 (5th Cir.2008) (recognizing that the First Amendment forbids government officials to discharge public employees for not being supporters of the political party in power). For these reasons, we conclude that Haverda was speaking as a citizen, and his letter to the editor is protected speech under the First Amendment.

"The Court has acknowledged the importance of promoting the public's interest in receiving the well-informed views of government employees engaging in civic discussion."


recognizing that the First Amendment forbids government officials to discharge public employees for not being supporters of the political party in power


Context: P 12. Specifically, Brown asserts that, because the plea colloquy did not include an explanation of party to a crime liability, (1) an essential element of the charge to which he pled guilty was omitted, and (2) he did not understand the robbery with threat of force as party to a crime charge to which he pled guilty.

See also State v. Lackershire, 2007 WI 74, ¶ 25, 301 Wis. 2d 418, 734 N.W.2d 23 ("Whether a plea colloquy conforms to the statutory requirements is a question of law that we review independently.").

See Brown, 293 Wis. 2d 594, ¶ 36 (trial court's failure to fulfill a duty at the plea hearing necessitates evidentiary hearing if postconviction motion alleges defendant did not understand an aspect of the plea because of the omission).


Context: . Appellants must establish standing based on future harm, since their previous title insurance purchases do not constitute a continuing injury. As the District Court held, the existing rates do not constitute a cognizable legal injury under the filed rate doctrine.

Keogh, 260 U.S. at 163, 43 S.Ct. 47 (stating that "[ujnless and until suspended or set aside, th[e filed] rate is made, for all purposes, the legal rate"); see also Wegoland Ltd., 27 F.3d at 18 ("[T]he doctrine holds that any 'filed rate’ ... is per se reasonable and unassailable in judicial proceedings brought by ratepayers.”). Thus, Appellants must establish standing based on the possibility of future unfair rates.

"[T]he doctrine holds that any 'filed rate' ... is per se reasonable and unassailable in judicial proceedings brought by ratepayers."


Context: Substantial evidence supports the agency's denial of withholding of removal because Gonzalez de Leon failed to establish a well-founded fear of persecution on account of an enumerated ground.

See Bolshakov v. INS, 133 F.3d 1279, 1280-81 (9th Cir.1998) (explaining that evidence of criminal street gang activity does not establish persecution on account of a protected ground); see also Pedro-Mateo v. INS, 224 F.3d 1147, 1150-51 (9th Cir.2000) (upholding conclusion that petitioner failed to establish that the military and guerrillas were interested in him for any reason other than his physical presence in a particular war-torn region of Guatemala).


Context: On appeal, neither party raised the standard of proof issue in terms. However, Kikumura has asked us to review findings of fact, an exercise that necessarily entails determining what standard of proof the factfinder should have applied in the first instance.

"[T]he inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits."

See, e.g., Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979) (holding that a habeas court reviewing the sufficiency of evidence underlying a criminal conviction must “determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt ” (emphasis added)); cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986) (“[T]he inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.”).

holding that a habeas court reviewing the sufficiency of evidence underlying a criminal conviction must "determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt " (emphasis added


Context: Section 1581(i) jurisdiction may not be invoked when jurisdiction under another subsection of SS 1581 is or could have been available, unless the remedy provided under that other subsection would be manifestly inadequate.

importers whose SS 1581(c) action was untimely could not use SS 1581(i) as alternative jurisdictional basis

United States v. Uniroyal, Inc., 69 C.C.P.A. 179, 687 F.2d 467, 475 (CCPA 1982) (Nies, J., concurring); Lowa, Ltd. v. United States, 5 C.I.T. 81, 561 F. Supp. 441, 446-47 (Ct. Int’l Trade 1983), aff’d, 724 F.2d 121 (Fed. Cir. 1984); see American Air Parcel Forwarding v. United States, 718 F.2d 1546, 1549-51 (Fed. Cir. 1983) (no § 1581(i) jurisdiction where importers could have taken steps to qualify under §§ 1581(a) or (h), and remedies under those subsections would not have been inadequate), cert. denied, 466 U.S. 937, 104 S. Ct. 1909, 80 L. Ed. 2d 458 (1984); United States Cane Sugar Refiners’ Ass’n v. Block, 69 C.C.P.A. 172, 683 F.2d 399, 402 n.5 (CCPA 1982) (“The delay inherent in proceeding under § 1581(a) makes relief under that provision manifestly inadequate and, accordingly, the court has jurisdiction in this case under § 1581(i).”); see also Royal Business Mach., Inc. v. United States, 69 C.C.P.A. 61, 669 F.2d 692, 701-02 (CCPA 1982) (importers whose § 1581(c) action was untimely could not use § 1581(i) as alternative jurisdictional basis).

no SS 1581(i) jurisdiction where importers could have taken steps to qualify under SSSS 1581(a) or (h), and remedies under those subsections would not have been inadequate


"The delay inherent in proceeding under SS 1581(a) makes relief under that provision manifestly inadequate and, accordingly, the court has jurisdiction in this case under SS 1581(i)."


Context: 2. Even if the Defendants had not forfeited their objection to the closure of the courtroom during voir dire, that objection would not be persuasive. Assuming without deciding, for purposes of this analysis, that the district court's Rule 10(e) factual findings in the Settling Order were appropriate, the Defendants have not made the requisite showing of an affirmative courtroom closure for a non-trivial duration.

when a closure is trivial, "exclusion of members of the public from a judicial proceeding does not implicate the constitutional guarantee"

See United States v. Shryock, 342 F.3d 948, 974 (9th Cir.2003) (a defendant must show not mere closure, but that it was closed affirmatively, completely, and pursuant to judicial act or order); see also United States v. Rivera, 682 F.3d 1223, 1229 (9th Cir.2012) (when a closure is trivial, “exclusion of members of the public from a judicial proceeding does not implicate the constitutional guarantee”); United States v. Withers, 638 F.3d 1055, 1063 (9th Cir.2011) (a courtroom closure must be total and of significant duration); United States v. Ivester, 316 F.3d 955, 959-60 (9th Cir.2003) (holding that some closures are too trivial to implicate the Sixth Amendment right to a public trial).


a courtroom closure must be total and of significant duration


holding that some closures are too trivial to implicate the Sixth Amendment right to a public trial


Context: It is the Loveladies court's interpretation of Keene that is binding on this panel.

"To the extent that [the appellant] believes that we have construed [an earlier Supreme Court decision] incorrectly, we note that absent an intervening Supreme Court decision or a decision by this court sitting en banc, we are bound by a prior panel's interpretation."

See, e.g., Barclay v. United States, 443 F.3d 1368, 1373 (Fed.Cir.2006) (“Panels of this court are bound by previous prece-dential decisions until overturned by the Supreme Court or by this court en banc.”); Foster v. Hallco Mfg. Co., 947 F.2d 469, 475 n. 5 (Fed.Cir.1991) (remarking that district court committed legal error by reinterpreting an earlier Supreme Court case, rather than applying this court’s subsequent interpretation of that case); see also Walton v. Bisco Indus., Inc., 119 F.3d 368, 371 n. 4 (5th Cir.1997) (“To the extent that [the appellant] believes that we have construed [an earlier Supreme Court decision] incorrectly, we note that absent an intervening Supreme Court decision or a decision by this court sitting en banc, we are bound by a prior panel’s interpretation.”); Tucker v. Phyfer, 819 F.2d 1030, 1035 n. 7 (11th Cir.1987) (“[H]ad the [earlier] panel expressly considered [two Supreme Court decisions], we would be bound by its interpretation and application of those decisions.”); Diamond Shamrock Co. v. N.L.R.B., 443 F.2d 52, 60 n. 27 (3d Cir.1971) (holding that court is bound by prior panel’s interpretation of Supreme Court decision); cf. United States v. Rapanos, 376 F.3d 629, 642 (6th Cir.2004), vacated on other grounds, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (rejecting appellee’s argument concerning interpretation of a Supreme Court decision because it had “previously been adjudicated by this court, in a published disposition, and its conclusion is entitled to stare decisis ”).

"Panels of this court are bound by previous prece-dential decisions until overturned by the Supreme Court or by this court en banc."


"[H]ad the [earlier] panel expressly considered [two Supreme Court decisions], we would be bound by its interpretation and application of those decisions."


holding that court is bound by prior panel's interpretation of Supreme Court decision


rejecting appellee's argument concerning interpretation of a Supreme Court decision because it had "previously been adjudicated by this court, in a published disposition, and its conclusion is entitled to stare decisis "


remarking that district court committed legal error by reinterpreting an earlier Supreme Court case, rather than applying this court's subsequent interpretation of that case


Context: In Section 282 proceedings, a party accused of infringement may claim, as an affirmative defense, that the relevant patent is invalid due to obviousness. To prevail on this defense, the accused infringer must show obviousness by clear'and convincing evidence. Section 282 is a fundamentally different context than the present one, and the burdens of proof governing those proceedings are inapplicable here.

noting that PTO examination and reexamination proceedings "have distinctly different standards, parties, purposes, and outcomes" than Section 282 infringement proceedings

See In re Swanson, 540 F.3d at 1377 (noting that PTO examination and reexamination proceedings “have distinctly different standards, parties, purposes, and outcomes” than Section 282 infringement proceedings); In re Etter, 756 F.2d at 855-59; cf. Sciele Pharma Inc. v. Lupin Ltd., 684 F.3d 1253, 1260 (Fed.Cir.2012) (noting that the clear and convincing standard applicable in Section 282 proceedings is rooted in a “necessary deference to the PTO”) (internal quotation omitted).

noting that the clear and convincing standard applicable in Section 282 proceedings is rooted in a "necessary deference to the PTO"


Context: Delaware courts have repeatedly held that majority voting power, without more, is not enough to "strip the directors of the presumptions of independence, and that their acts have been taken in good faith and in the best interests of the corporation."

finding 94% voting power insufficient to rebut presumption of outside directors' independence

Aronson, 473 A.2d at 815-16; see Stewart, 845 A.2d at 1051 (finding 94% voting power insufficient to rebut presumption of outside directors’ independence); see also Zimmerman v. Braddock, No. 18473-NC, 2005 Del. Ch. LEXIS 135, 2005 WL 2266566, at *8 (Del. Ch. Sept. 8, 2005) (finding that 48% stock ownership alone is not sufficient proof of domination of control of the board).


Context: As a preliminary matter, the Court holds that Xerox bears the burden of demonstrating that the collateral source rule does not apply.

plaintiff receiving Medicare benefits must "show he has contributed to the fund he claims as a collateral source" in order to invoke the collateral source rule

But see Overton v. United States, 619 F.2d 1299, 1305-06 (8th Cir.1980) (plaintiff receiving Medicare benefits must “show he has contributed to the fund he claims as a collateral source” in order to invoke the collateral source rule).

"[a]s between the employer, whose action caused the discharge, and the employee, who may have experienced other noneompensable losses, it is fitting that the burden be placed on the employer."

Hylind, 481 Fed.Appx. at 824 (citing Sloas, 616 F.3d at 389). Accord, Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 258 (2d Cir.1991) (finding employer waived its claim to offset social security and unemployment payments from the damage award when it failed to object at trial); Maxfield v. Sinclair Int’l, 766 F.2d 788, 795 (3d Cir.1985) (“[a]s between the employer, whose action caused the discharge, and the employee, who may have experienced other noneompensable losses, it is fitting that the burden be placed on the employer.”).


Context: The use of medical experts to determine issues continued throughout the 1800s. With time, Delaware Courts allowed expert testimony to be used to prove matters beyond medicine.

See Rice v. Pennypacker, Del. Ch., 5 Del. Ch. 33 (1875) (admitting expert testimony in the science of bookkeeping); Maxwell v. Wilmington City Railway Co., Del. Super., 1 Marv. 199, 40 A. 945, 946 (1893) (allowing a locomotive engineer to give his opinion in a negligence case as to whether a train car could have stopped more quickly with the application of sand to the steel rails); but see State v. Fleming, Del. Ch., 3 Del.Ch. 517 (1867) (not allowing expert testimony on the issue of whether a trustee had acted with due diligence and fidelity because, as the Court noted: “[i]t is for the Court, not for the witnesses, to adjudge the question of neglect, bad faith or mismanagement).”

not allowing expert testimony on the issue of whether a trustee had acted with due diligence and fidelity because, as the Court noted: "[i]t is for the Court, not for the witnesses, to adjudge the question of neglect, bad faith or mismanagement


Context: While the plaintiffs here argue that since Guffy was not decided until after they filed suit, and as such should not be applied retroactively today, the plaintiffs are mistaken. Because this Court handed down Guffy while this litigation was ongoing between the parties, we find Guffy controlling.

See Thompson v. City of Vicksburg, 813 So.2d 717, 721 (Miss.2002) (retroactive application of judicially articulated rulings applied to cases awaiting trial); see also Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997) (change in the law applied retroactively to the case pending review on appeal).


Context: Notwithstanding the Government's argument that we lack jurisdiction to review the IJ's pretermission of Chen's asylum application under 8 U.S.C. SS 1158(a), we assume hypothetical jurisdiction over that application because the jurisdictional issues presented here are complex, and because the substance of that application is without merit.

See Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir.2004) (asserting hypothetical jurisdiction when the jurisdictional issues related to statutory and not constitutional jurisdiction); see also Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 338 (2d Cir.2006) (“Our assumption of jurisdiction to consider first the merits is not barred where the jurisdictional constraints are imposed by statute, not the Constitution, and where the jurisdictional issues are complex and the substance of the claim is, as here, plainly without merit.”).

"Our assumption of jurisdiction to consider first the merits is not barred where the jurisdictional constraints are imposed by statute, not the Constitution, and where the jurisdictional issues are complex and the substance of the claim is, as here, plainly without merit."


Context: The Seventh Amendment "preserve[s]" the right to a jury trial as existed during the founding of this nation; it does not grant an unconditional right to a jury in all matters. And it is well settled that dismissal for failure to state a claim does not violate a party's right to a jury trial.

"It is well settled that an otherwise proper ruling is not erroneous merely because it has the incidental effect of precluding a jury trial."

James v. Mann, 234 F.3d 1268, at *2 (6th Cir.2000) (unpublished table opinion); Anderson v. Law Firm of Shorty, Dooley & Hall, 393 Fed.Appx. 214 (5th Cir.2010); Henry v. Jones, 484 Fed.Appx. 290 (11th Cir.2012); Winslow v. Lehr, 646 F.Supp. 242 (D.Colo.1986); Allen v. Biggs, 62 F.Supp. 229 (E.D.Penn.1945); see Perkins v. Spivey, 911 F.2d 22, 28 n. 6 (8th Cir.1990) (“It is well settled that an otherwise proper ruling is not erroneous merely because it has the incidental effect of precluding a jury trial.”); cf. Fidelity & Deposit Co. of Md. v. United States, 187 U.S. 315, 23 S.Ct. 120, 47 L.Ed. 194 (1902) (summary judgment does not violate Seventh Amendment right to jury); Biegas v. Quickway Carriers, Inc., 573 F.3d 365 (6th Cir.2009) (same); Oglesby v. Terminal Transp. Co., 543 F.2d 1111 (5th Cir.1976) (same); Garvie v. City of Ft. Walton Beach, 366 F.3d 1186 (11th Cir.2004) (same).


Context: His 17.5 year sentence does not exceed the maximum penalty set forth in SS 841(b)(1)(B), nor is it at or near the statutorily prescribed minimum penalty in this subsection. We therefore conclude that Lucas's sentence does not violate Apprendi.

holding that the defendant's rights under Appren-di were violated where the sentence was at the mandatory minimum for the judge-determined drug quantity and the judge felt constrained by the statute to impose this sentence

See United States v. Garcia, 252 F.3d 838, 843 (6th Cir.2001) (holding that the defendant’s sentence did not violate Apprendi where the actual sentence imposed did not exceed the maximum penalty corresponding to the quantity of drugs for which the defendant acknowledged responsibility, nor was the sentence at the bottom end of a higher statutory range of penalties); cf. United States v. Ramirez, 242 F.3d 348, 350-52 (6th Cir.2001) (holding that the defendant’s rights under Appren-di were violated where the sentence was at the mandatory minimum for the judge-determined drug quantity and the judge felt constrained by the statute to impose this sentence).

holding that the defendant's sentence did not violate Apprendi where the actual sentence imposed did not exceed the maximum penalty corresponding to the quantity of drugs for which the defendant acknowledged responsibility, nor was the sentence at the bottom end of a higher statutory range of penalties


Context: The same holds true for his prior convictions for pointing a firearm at another person and possessing a firearm after a felony conviction. By claiming as a defense that he was in the wrong place at the wrong time, Robertson placed his state of mind at issue for the charged firearms offenses.

listing "knowing! ] ... possession]" as an essential element of the crime of possessing a firearm in furtherance of drug trafficking

See United States v. Moran, 503 F.3d 1135, 1144 (10th Cir.2007) (affirming the admission of an eleven year-old conviction for being a felon in possession of a firearm to show “knowing possession of the firearm,” where the defendant denied knowledge of the gun’s presence), cert. denied, — U.S. -, 128 S.Ct. 2424, 171 L.Ed.2d 234 (2008); cf. United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir.2008) (listing “knowing! ] ... possession]” as an essential element of the crime of possessing a firearm in furtherance of drug trafficking).

affirming the admission of an eleven year-old conviction for being a felon in possession of a firearm to show "knowing possession of the firearm," where the defendant denied knowledge of the gun's presence


Context: As ProNav's new argument as to why the Court should have admitted the Lemiska evidence was not raised by ProNav at the time of trial and was far from obvious, the argument has been waived.

where defendant asserted a new argument for the admissibility of certain evidence, that it had failed to articulate at trial, this challenge to the trial judge's evidentiary ruling would not be entertained on appeal

United States v. Cruz, 894 F.2d 41, 43-44 (2d Cir.1990) (“Unless the basis for a-proposed admission is obvious, it is the burden of counsel who seeks admission to alert the Court to the legal basis for the proffer.”) (quotation omitted); see also Ramey v. District 141, Int’l Assoc. of Machinists and Aerospace Workers, 378 F.3d 269, 281-82 (2d Cir.2004) (where defendant asserted a new argument for the admissibility of certain evidence, that it had failed to articulate at trial, this challenge to the trial judge’s evidentiary ruling would not be entertained on appeal); Fed.R.Evid. 103.

"Unless the basis for a-proposed admission is obvious, it is the burden of counsel who seeks admission to alert the Court to the legal basis for the proffer."


Context: Before trial the Thomases stipulated that the issue of Mayflower's fault would be submitted to the jury so the jury could compare Mayflower's fault to any fault for which the jury held defendants responsible. During trial the Thomases raised concerns with the legality of the stipulation agreement, but they ultimately agreed to submit the issue of Mayflower's fault to the jury and agreed to the related special interrogatory, and they thus have waived appellate review.

See Starks v. Rent-A-Center, 58 F.3d 358, 361-62 (8th Cir.1995) (it is fundamental that where party invited error, there can be no reversible error); cf. Porterco, Inc. v. Igloo Prods. Corp., 955 F.2d 1164, 1173 (8th Cir.1992) (where no specific objections are made to district court’s decision to submit issue to jury, party waives appellate review of ruling).

where no specific objections are made to district court's decision to submit issue to jury, party waives appellate review of ruling


Context: This is true regardless of whether the prosecution solicited testimony it knew to be false or simply allowed such testimony to pass uncorrected. And, knowingly false or misleading testimony by a law enforcement officer is imputed to the prosecution.

See Wedra v. Thomas, 671 F.2d 713, 717 n. 1 (2d Cir.1982); Curran v. Delaware, 259 F.2d 707, 712-13 (3d Cir.1958) (citing Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942)); cf. Boone v. Paderick, 541 F.2d 447, 450-51 (4th Cir.1976) (recognizing that withholding of exculpatory evidence by police is imputed to the prosecution).

rejecting habeas petitioner's claim that sheriff and investigators testified falsely at trial on the basis that petitioner had failed to show that the prosecutor knew the testimony was perjurious

But see Koch v. Puckett, 907 F.2d 524, 530-31 (5th Cir.1990) (rejecting habeas petitioner’s claim that sheriff and investigators testified falsely at trial on the basis that petitioner had failed to show that the prosecutor knew the testimony was perjurious).


Context: See Rules of the Superior Court, Rules Governing Persons Authorized to Take Bail, Rules 14 & 15 (1996) (providing that persons appointed or authorized to take bails must respond promptly to calls from the defendant or his or her family, attorneys, or custodians, and a plan must be in place to insure coverage of the entire jurisdiction). When the court has established an order of bail as in this case the defendant or a putative surety on his behalf who is prepared to tender United States currency to the court has a right to have access to a judicial officer unimpeded by police interference.

See also Commonwealth v. Rosewarne, 410 Mass. 53, 55-56(1991) (police violated rights of defendant in custody for operating under the influence of alcohol when they obstructed his efforts to secure his release on bail).

Compare Commonwealth v. King, 429 Mass. 169, 174-76 (1999) (noting that a clerk-magistrate was not justified in refusing on public safety grounds to come to the police barracks to conduct a bail hearing).