Context: Mitchell claims that the description in this case was equally vague, and that we must therefore conclude that it could not give rise to a Terry stop. However, as discussed, the "stop" in this case did not occur until the officers frisked Mitchell, and at that point the officers had a reasonable and articulable suspicion based on the totality of the circumstances, including most notably the fact that Mitchell said he had a gun. Thus, the seizure was not based merely on an anonymous tip with some descriptive information of a sub ject's readily observable location and appearance.

holding that an anonymous tip does not establish sufficient indicia of reliability simply because it provides "[a]n accurate description of a subject's readily observable location and appearance," because such a tip "provide[s] no predictive information and therefore [leaves] the police without means to test the informant's knowledge or credibility"

See J.L., 529 U.S. at 272, 120 S.Ct. 1375 (holding that an anonymous tip does not establish sufficient indicia of reliability simply because it provides “[a]n accurate description of a subject’s readily observable location and appearance,” because such a tip “provide[s] no predictive information and therefore [leaves] the police without means to test the informant’s knowledge or credibility”); cf. United States v. Cohen, 481 F.3d 896 (6th Cir.2007) (holding that police officers lacked reasonable suspicion to support the investigatory stop of the defendant’s vehicle which was based only on a 911 hang-up call from a residence in a cul-de-sac, and the fact that an officer saw the defendant’s vehicle turn off the cul-de-sac four minutes later); United States v. Patterson, 340 F.3d 368, 370-72 (6th Cir.2003) (holding that officers lacked reasonable suspicion to seize the defendant based on an anonymous call to a drug hotline about drug sales in a known “hot spot”; stating that “[t]o allow the tip alone to establish reasonable suspicion would allow officers carte blanche to search every person in the vicinity”).

holding that police officers lacked reasonable suspicion to support the investigatory stop of the defendant's vehicle which was based only on a 911 hang-up call from a residence in a cul-de-sac, and the fact that an officer saw the defendant's vehicle turn off the cul-de-sac four minutes later


Context: It also appears that the husband has the present ability to pay some amount of permanent alimony. Nonetheless, the record indicates that the parties' financial circumstances will most likely change in the future, which would at least support an award of nominal permanent alimony.

"[W]hen one party is entitled to permanent periodic alimony but the other spouse has no current ability to pay, the trial court should award a nominal sum of permanent periodic alimony, which will give the court jurisdiction to reconsider the award should the parties' financial circumstances change."

See Schmidt v. Schmidt, 997 So.2d 451, 454 (Fla. 2d DCA 2008) (“[W]hen one party is entitled to permanent periodic alimony but the other spouse has no current ability to pay, the trial court should award a nominal sum of permanent periodic alimony, which will give the court jurisdiction to reconsider the award should the parties’ financial circumstances change.”).

See also Fleck v. Fleck, 958 So.2d 1043 (Fla. 2d DCA 2007) (finding the trial court erred by failing to consider whether an award of nominal permanent alimony was warranted where the parties had disparate earning capacities and the wife had a need for alimony).


Context: Second, it has apparently never been applied against the government in a criminal case."). In any event, the inconsistencies were immaterial to the conviction since [the defendant] could have been convicted for the same offense, carjacking resulting in death and aiding and abetting the same, under both theories.

"When it' cannot be determined which of two defendants' guns caused a fatal wound and either defendant could have been convicted under either theory, the prosecution's argument at both trials that the defendant on trial pulled the trigger is not factually inconsistent."

See United States v. Paul, 217 F.3d 989, 998-99 (8th Cir.2000) (“When it' cannot be determined which of two defendants’ guns caused a fatal wound and either defendant could have been convicted under either theory, the prosecution’s argument at both trials that the defendant on trial pulled the trigger is not factually inconsistent.”); cf. Bradshaw v. Stumpf, 545 U.S. 175, 187, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (uphold,ing a guilty plea where the defendant’s assertions of inconsistency related entirely to which individual shot the victim but where “the precise identity of the triggerman was immaterial to [defendant’s conviction for aggravated murder.”).’

uphold,ing a guilty plea where the defendant's assertions of inconsistency related entirely to which individual shot the victim but where "the precise identity of the triggerman was immaterial to [defendant's conviction for aggravated murder."


Context: (See Pis.' Mem. at 4.) However, it is a well-established principle that a court need not look to legislative history if the statutory language is clear and unambiguous.

"In construing the terms of a statute, we look first to the language itself."

See Robinson v. Shell Oil Co., 519 U.S. 837, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (“[A court’s] first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case, and inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent .... ”); see also Disabled in Action of Metro. N.Y. v. Hammons, 202 F.3d 110, 119 (2d Cir. 2000) (“In construing the terms of a statute, we look first to the language itself.”); Beckett v. Prudential Ins. Co., 893 F.Supp. 234, 238 (S.D.N.Y.1995) (“[W]here the statutory language is unambiguous, [a] court must do no more and no less than apply language as written.”). In the instant case, the language in Section 6411 is both clear and unambiguous in setting forth the application’s requirements and deadlines.

"[A court's] first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case, and inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent .... "


"[W]here the statutory language is unambiguous, [a] court must do no more and no less than apply language as written."


Context: Importantly, the EEOC did not bring a hostile work environment claim, and it points to no actions taken on account of these statements. The extent to which a statement like this one evidences discrimination depends, in large part, on its relation in time and relevance to the allegedly discriminatory action.

affirming a district court's conclusion, in part, that "isolated incidents of discrimination were insufficient to support the class' claim of a pattern or practice of gender discrimination"

See Ottaviani v. SUNY at New Paltz, 875 F.2d 365, 369, 377 (2d Cir.1989) (affirming a district court’s conclusion, in part, that “isolated incidents of discrimination were insufficient to support the class’ claim of a pattern or practice of gender discrimination”); Ste.

stating that there must be "a sufficient nexus between the remark and the employment decision at issue"

Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149 (2d Cir.2010); Witkowich v. Gonzales, 541 F.Supp.2d 572, 584 (S.D.N.Y.2008) (stating that there must be “a sufficient nexus between the remark and the employment decision at issue”). Isolated remarks by a handful of executives — or one specific executive, the head of News, which EEOC focuses on heavily here — do not show that Bloom-berg’s standard operating procedure was to discriminate against pregnant women and mothers.


Context: The statement is unsworn and from a source with no apparent personah knowledge of the contract negotiations. In general, unsworn letters carry little to no weight as evidence in opposition to a motion -for summary judgment.

holding that a signed but unsworn letter, which is not otherwise authenticated, is hearsay and "should not be considered as evidence in opposition to a motion for summary judgment"

See Hill v. Rayboy-Brauestein, 467 F.Supp.2d 336, 361 (S.D.N.Y.2006) (holding that a signed but unsworn letter, which is not otherwise authenticated, is hearsay and "should not be considered as evidence in opposition to a motion for summary judgment”); see also United States v. Jude Hotel Corp., 77 F.3d 648, 657-58 (2d Cir.1996) ("The submission of [an] unsworn letter was an inappropriate response to the government’s motion for summary judgment, and the factual assertions made in. that letter were properly disregarded by the court.”)

"The submission of [an] unsworn letter was an inappropriate response to the government's motion for summary judgment, and the factual assertions made in. that letter were properly disregarded by the court."


Context: The privacy interests of third parties, including the victims, weigh in the mix of interests to consider in this ease. See United States v. Robinson, Cr.

No. 08-10309, 2009 WL 137319, at *3 (D.Mass. Jan. 20, 2009) (recognizing and discussing importance of privacy interests of victims in context of newspaper’s request for court to order government’s disclosure of victim’s identity); United States v. Salemme, 985 F.Supp. 193, 197 (D.Mass.1997) (“privacy interests of third parties may weigh heavily in deciding issues of impoundment”); See also United States v. Carriles, 654 F.Supp.2d 557, 566 (W.D.Tex. 2009) (in seeking protective order, government may advocate for privacy interests of nonparties). This ease involves a large number of victims and also implicates the privacy rights of the victims’ families.

recognizing and discussing importance of privacy interests of victims in context of newspaper's request for court to order government's disclosure of victim's identity


"privacy interests of third parties may weigh heavily in deciding issues of impoundment"


Context: Mar. 29, 2005)). Indeed, states have a strong interest in the welfare of survivors of terrorist attacks and mass torts.

noting that in the context of mass tort cases "[e]ach state will choose rules of liability and damages that it thinks are best designed to protect the welfare of its citizens"

See Dammarell, 2005 WL 756090, at *20 (noting that in the context of mass tort cases “[e]ach state will choose rules of liability and damages that it thinks are best designed to protect the welfare of its citizens”); cf. Heiser, 466 F.Supp.2d at 266 (noting that “the United States has a ‘unique interest’ in having its domestic law apply in cases involving terrorist attacks on United States citizens”).

noting that "the United States has a 'unique interest' in having its domestic law apply in cases involving terrorist attacks on United States citizens"


Context: Defendants argue that NorCal and SoCal lack sufficient knowledge about this lawsuit to serve as lead plaintiffs. (Defs.' Class Cert. Br. at 38-39.) "In this circuit," however, "general knowledge is sufficient to show adequacy."

approving lead plaintiff in a MBS case who "showed knowledge of the general characteristics of mortgage-backed securities, the ... securities [at issue in the suit] in particular, and their fiduciary responsibility as class representatives"

Res. Capital, LLC, 272 F.R.D. at 164 (approving lead plaintiff in a MBS case who “showed knowledge of the general characteristics of mortgage-backed securities, the ... securities [at issue in the suit] in particular, and their fiduciary responsibility as class representatives”); see also Tsereteli, 283 F.R.D. at 209 (“The Supreme Court has expressly disapproved of attacks on the adequacy of a class representative based on the representative’s ignorance.” (internal quotation marks omitted)); NYSE Specialists, 260 F.R.D. at 74 (stating that, in complex securities eases, “named plaintiffs are not expected to possess expert knowledge of the details of the case and must be expected to rely on expert counsel” (quoting Baffa, 222 F.3d at 61) (internal quotation marks omitted)).

stating that, in complex securities eases, "named plaintiffs are not expected to possess expert knowledge of the details of the case and must be expected to rely on expert counsel" (quoting Baffa, 222 F.3d at 61


Context: The district court properly dismissed Acosta's deliberate indifference claims because he failed to allege facts establishing that defendants consciously disregarded his serious medical needs.

"A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment."

See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004) (“A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.”); Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.1985) (per curiam) (for delay of treatment to constitute deliberate indifference, prisoner must allege that it led to further injury); see also Steckman v. Hart Brewing, 143 F.3d 1293, 1295-96 (9th Cir.1998) (“[W]e are not required to accept as true eonclusory allegations which are contradicted by documents referred to in the complaint.”).

"[W]e are not required to accept as true eonclusory allegations which are contradicted by documents referred to in the complaint."


for delay of treatment to constitute deliberate indifference, prisoner must allege that it led to further injury


Context: Particularly in alternative design cases, merely conceptualizing possibilities is not alone sufficient. Testing of the proposed alternative is often required.

"Our cases have recognized the importance of testing in alternative design cases."

See Watkins, 121 F.3d at 992; Stanczyk, 836 F.Supp. at 567 (“[T]he history of engineering and science is filled with finely conceived ideas that are unworkable in practice.”); see also Cummins v. Lyle Indus., 93 F.3d 362, 368 (7th Cir.1996) (“Our cases have recognized the importance of testing in alternative design cases.”).

"[T]he history of engineering and science is filled with finely conceived ideas that are unworkable in practice."


Context: The Munroes cross-appeal the same certified order Continental appeals. Rule 5(b)(2) is not jurisdictional.

holding that nonstatutory rules of proce dure are not jurisdictional because only Congress may determine a federal court's subject-matter jurisdiction

See Kontrick v. Ryan, 540 U.S. 443, 452-56, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (holding that nonstatutory rules of proce dure are not jurisdictional because only Congress may determine a federal court’s subject-matter jurisdiction). • This court granted the petition to cross-appeal, and will consider it.

"The failure to file the petition for permission to cross-appeal within the time provided is a jurisdictional defect, barring this Court from hearing Tranello's cross-appeal."

But see Tranello v. Frey, 962 F.2d 244, 248 (2d Cir.1992) (“The failure to file the petition for permission to cross-appeal within the time provided is a jurisdictional defect, barring this Court from hearing Tranello’s cross-appeal.”); Rodriguez v. Banco Cent., 917 F.2d 664, 668-69 (1st Cir.1990).


Context: This leaves for the Court to determine whether Debtor voluntarily and intentionally violated that duty. The taxpayer's state of mind may be inferred from his or her conduct.

See U.S. v. Weiss, 2000 WL 1708802 *3 (E.D.Pa.) (“A court may properly consider a debtor’s conduct after the return and payment were due to determine whether the evasion of payment was willful.”); see also U.S. v. Voigt, 89 F.3d 1050, 1090 (3d Cir.1996) (explaining that intent to evade payment of tax may be inferred from circumstances) ; United States v. Mal, 942 F.2d 682, 687 (9th Cir.1991) (evasion of payment “involves conduct designed to place assets beyond the government’s reach after a tax liability has been assessed”) (emphasis added); United States v. Conley, 826 F.2d 551, 556 (7th Cir.1987) (rational jury can infer intent to evade upon learning of manner in which defendant conducted his financial affairs); United States v. Shorter, 809 F.2d 54, 57 (D.C.Cir.) (jury could infer intent to evade where defendant carried on “cash lifestyle”), cert. denied, 484 U.S. 817, 108 S.Ct. 71, 98 L.Ed.2d 35 (1987). For the Government, the pertinent conduct is Klayman’s diversion of property and income for the past 25 years. It maintains that his continued and uninterrupted enjoyment of those assets held in the name of others shows that this was not arranged by accident; these divestitures and diversions were so systematic, thorough and transparent as to allow but one inference as to why they occurred: for the purpose of frustrating the IRS’ collection efforts.

"A court may properly consider a debtor's conduct after the return and payment were due to determine whether the evasion of payment was willful."


evasion of payment "involves conduct designed to place assets beyond the government's reach after a tax liability has been assessed"


rational jury can infer intent to evade upon learning of manner in which defendant conducted his financial affairs


jury could infer intent to evade where defendant carried on "cash lifestyle"


Context: [P 15] In her complaint Martin alleges that the Academy's extreme and outrageous conduct and discriminatory actions damaged her professional reputation. In light of that allegation, there exists at least the potential for coverage under part B of the policy, and thus the court erred by determining that the acts were not within the definition of personal injury.

duty to defend exists if there is any potential basis of recovery regardless of the actual facts on which the insured's ultimate liability is based

See Gibson, 673 A.2d at 1352 (duty to defend exists if there is any potential basis of recovery regardless of the actual facts on which the insured’s ultimate liability is based); cf. City of Old Town v. American Employers Ins. Co., 858 F.Supp. 264, 269 (D.Me.1994) (duty to indemnify jury verdict finding damages from emotional distress and injury to reputation because policy was ambiguous in that it contained broad language covering the utterance of “defamatory or disparaging material” and the “violation of an individual’s right of privacy”).

duty to indemnify jury verdict finding damages from emotional distress and injury to reputation because policy was ambiguous in that it contained broad language covering the utterance of "defamatory or disparaging material" and the "violation of an individual's right of privacy"


Context: . Although the parties have not addressed choice-of-law issues, Maryland law properly governs the interpretation of the forum selection clause in this case because jurisdiction here is based in diversity and the dispute concerns the meaning of a contract governed by Maryland law.

See Silo Point, 578 F.Supp.2d at 810-11 (purporting to apply Maryland law, though citing overwhelmingly to federal opinions, in interpreting the meaning of a forum selection clause); Koch v. Am. Online, Inc., 139 F.Supp.2d 690, 692-93 (D.Md.2000) (in analyzing the validity of a forum selection clause, noting that when jurisdiction is based on diversity, "the Fourth Circuit applies the relevant state law”); cf. TECH USA, 592 F.Supp.2d at 855 ("In a diversity action such as this one, courts in the District of Maryland apply state law in determining the applicability of forum-selection clauses .... ”).

"In a diversity action such as this one, courts in the District of Maryland apply state law in determining the applicability of forum-selection clauses .... "


in analyzing the validity of a forum selection clause, noting that when jurisdiction is based on diversity, "the Fourth Circuit applies the relevant state law"


Context: Under the Court Interpreters Act, a trial judge must use an interpreter in the courtroom if that judge determines that a party "speaks only or primarily a language other than the English language ... so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer." 28 U.S.C. SS 1827(d)(1). Additionally, some circuits recognize a right to an interpreter when a defendant's inability to communicate in English interferes with the defendant's Sixth Amendment right to confrontation or the defendant's Fifth Amendment due process right or his right to testify on his own behalf. Our circuit holds that a constitutional right to an interpreter exists in certain situations.

holding that a defendant's Fifth Amendment rights were violated when an interpreter was withdrawn by the court

See United States v. Mayans, 17 F.3d 1174, 1179-81 (9th Cir.1994) (holding that a defendant’s Fifth Amendment rights were violated when an interpreter was withdrawn by the court); see also United States v. Shin, 953 F.2d 559, 561 (9th Cir.1992) (“As a constitutional matter, the appointment of interpreters is within the district court’s discretion.”).

"As a constitutional matter, the appointment of interpreters is within the district court's discretion."


Context: According to the clear statutory language of the Speedy Trial Act, "[fjailure of the defendant to move for dismissal prior to trial ... shall constitute a waiver of the right to dismissal under this section." 18 U.S.C. SS 3162(a)(2). This Court has consistently recognized the failure to move in the district court for a dismissal under the Speedy Trial Act as a procedural bar to appellate review.

noting that "[t]he Speedy Trial Act provides no exception to this waiver provision, and we may not read one in."

See United States v. Westbrook, 119 F.3d 1176, 1186 (5th Cir.1997) (noting that “[t]he Speedy Trial Act provides no exception to this waiver provision, and we may not read one in.”); see also United States v. McElhaney, 469 F.3d 382, 386 (5th Cir.2006) (finding waiver where defendant raised violation of the Speedy Trial Act for the first time on appeal); United States v. Hernandez, 457 F.3d 416, 420 (5th Cir.2006) (finding waiver under the Speedy Trial Act where defendants failed to move for dismissal before trial).


finding waiver under the Speedy Trial Act where defendants failed to move for dismissal before trial


Context: We are troubled by the district court's summary judgment disposition of the plaintiffs' negligent design and strict liability design defect causes of action. With regard to the negligence claim, the district court properly engaged in a risk-utility analysis.

Griggs, 981 F.2d at 1435-36 (negligence law requires balancing of risk in light of social value of interest at stake, and potential harm, against value of conflicting interest) (citing W. Page Keeton et al., Prosser and Keeton on Torts § 31, at 173 (5th ed. 1984); Benson v. Pennsylvania Cent Transp. Co., 463 Pa. 37, 342 A.2d 393, 397 (1975); Clewell v. Pummer, 384 Pa. 515, 121 A.2d 459, 462 (1956)); see also Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1369-70 (3d Cir.1993) (the classic risk-utility analysis is used to determine whether a risk is unreasonable in a negligence cause of action). In performing this analysis, the district court relied heavily on the statistical fact that the general population of small children suffer a mortality rate from choking on small toys or toy parts of approximately only one per 720,000 children.


Context: We review de novo a district court's dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), accepting all well-pleaded factual allegations in the complaint as true and drawing all inferences in favor of the plaintiffs. Although courts are generally limited to examining the sufficiency of the pleadings on a motion to dismiss, on a challenge to a district court's subject matter jurisdiction, the court may also resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings.

"In resolving the jurisdictional dispute, the district court must review the pleadings and any evidence before it, such as affidavits."

Flores v. S. Peru Copper Corp., 414 F.3d 233, 255 n.30 (2d Cir. 2003) (consulting evidence outside the pleadings to resolve disputed jurisdictional fact issues); see also Cargill Intl S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir. 1993) (“In resolving the jurisdictional dispute, the district court must review the pleadings and any evidence before it, such as affidavits.”).


Context: 2. Summary judgment was proper on both the Equal Pay Act claim and the Title VII claim because the work of the proposed comparator, James Casanova, was not substantially equal to Plaintiffs work.

holding that, to establish a prima facie Equal Pay Act claim, the plaintiff must show that the jobs being compared are "substantially equal"

See Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1074 (9th Cir.1999) (holding that, to establish a prima facie Equal Pay Act claim, the plaintiff must show that the jobs being compared are “substantially equal”); see also Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1414 (9th Cir.1988) (holding that a plaintiff who cannot establish an Equal Pay Act claim likewise cannot establish a pay-based Title VII claim).


Context: Indeed, irreparable harm may be presumed with the finding of a violation of the First Amendment.

"It is well established that the deprivation of constitutional rights 'unquestionably constitutes irreparable injury.' "

See Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)); see also Washington, 847 F.3d at 1169 (citing Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’ ”)) (additional citations omitted).

"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury"


Context: The FDPA and the Constitution require that the defendant receive adequate notice of the aggravating factor, ..., not notice of the specific evidence that will be used to support it.

See 18 U.S.C.A. § 3593(a) (requiring only that the government’s notice “set [] forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death”); United States v. Battle, 173 F.3d 1343, 1347 (11th Cir.1999) (observing that notice given to a defendant of the applicable aggravating factors in a death penalty case is not the same as notice of the specific evidence that the government intends to present at a sentencing hearing), cert. denied, 529 U.S. 1022, 120 S.Ct. 1428, 146 L.Ed.2d 318 (2000); cf. Gray v. Netherlands 518 U.S. 152, 167-68, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (noting that there is no constitutional right to advance notice of the government’s evidence in aggravation at a capital sentencing hearing).

noting that there is no constitutional right to advance notice of the government's evidence in aggravation at a capital sentencing hearing


Context: Second, it was well established in other federal courts and in Massachusetts state court, if not in this circuit, that an arrest made on the basis of a facially valid warrant which turns out to have been cleared before the arrest violates the Fourth Amendment.

holding that it was clearly established for SS 1983 purposes that an arrest founded upon a recalled warrant violates the Fourth Amendment

See, e.g., Murray v. City of Chicago, 634 F.2d 365, 366 (7th Cir.1980) (ten weeks after court quashed and recalled a warrant for appellant’s arrest, police arrested her on the basis of the warrant; court found it “clear that appellant sustained a violation of constitutional rights by being arrested and detained pursuant to an invalid warrant”); Commonwealth v. Hecox, 35 Mass.App.Ct. 277, 619 N.E.2d 339, 340-44 & n. 2 (1993) (where officer mistakenly believed that a warrant was outstanding for defendant’s arrest, but in fact a warrant either never had issued or had been subsequently cleared, arrest pursuant to that warrant violated Fourth Amendment); see also McMurry v. Sheahan, 927 F.Supp. 1082, 1088 (N.D.Ill.1996) (holding that it was clearly established for § 1983 purposes that an arrest founded upon a recalled warrant violates the Fourth Amendment).

where officer mistakenly believed that a warrant was outstanding for defendant's arrest, but in fact a warrant either never had issued or had been subsequently cleared, arrest pursuant to that warrant violated Fourth Amendment


Context: The presence of accomplices during the commission of the crime is immaterial so long as the jury makes an express finding that the defendant convicted actually possessed a firearm during the event.

Johnson v. State, 720 So.2d 232, 237 (Fla.1998) (court may impose mandatory minimum sentence for use of a firearm where jury makes finding that defendant committed crime while using a firearm either by finding defendant guilty of crime involving firearm or by answering specific question of special verdict form so indicating); and State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (same); cf. Redd v. State, 684 So.2d 881 (Fla. 4th DCA 1996) (mandatory minimum sentence for use of firearm during armed robbery improper where evidence at trial failed to establish conclusively that defendant actually possessed firearm).


Context: P 21 In this case, during voir dire no seated juror admitted having formed any opinion on Bigger's guilt or innocence and, although many were familiar with publicity about the case, most had only vague reeollee- tions and did not recall specifically Bigger's involvement. Therefore, Bigger has not established actual prejudice.

See Davolt, 207 Ariz. 191, ¶ 50, 84 P.3d at 471 (prior knowledge of case insufficient to disqualify if juror has not formed preconceived notions about ease and believes can be fair and impartial); see also Bolton, 182 Ariz. at 301, 896 P.2d at 841 (no actual prejudice where any prior knowledge consisted “only of vague recollections”); Bible, 175 Ariz. at 566, 858 P.2d at 1169 (no actual prejudice where almost all potential jurors had heard about case but all said could set aside opinions and decide case based on evidence).

no actual prejudice where any prior knowledge consisted "only of vague recollections"


no actual prejudice where almost all potential jurors had heard about case but all said could set aside opinions and decide case based on evidence


Context: The trial court stated, "I do not think that ... the Defense [i.e., Appellant] has made a showing that the Cl was in a position to have information which is critical to the defense such as to warrant the production of the Cl." N.T. at p. 53 (May 28,1992). We understand this to be a determination that in light of the fact that Albert Austin had made himself available to Appellant in order to testify that Appellant was not present at the January 23,1991 drug sale, which corroborated Appellant's own testimony, Appellant failed to show that he needed the testimony of the confidential informant.

no abuse of trial court's discretion in denying disclosure where "the testimony of the Special Employee [i.e., the confidential informant] would have been at best cumulative."

U.S. v. Simonetti, 326 F.2d 614, 615 (2d Cir.1964)(no abuse of trial court’s discretion in denying disclosure where “the testimony of the Special Employee [i.e., the confidential informant] would have been at best cumulative.”); Suarez v. U.S., 582 F.2d 1007, 1012 (5th Cir.1978)(no error in denying disclosure where the informant’s testimony in Suarez was not essential to the appellant’s defense as was the case in Roviaro because the confidential informant therein represented the only likely source of exculpatory information.)

Cf. Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877 (1995)(arguably erroneous exclusion of some evidence was harmless because other similar evidence was admitted and thus no prejudice); Henery v. Shadle, 443 Pa.Super. 331, 661 A.2d 439 (1995)(erroneous exclusion of evidence harmless where similar evidence was admitted).


erroneous exclusion of evidence harmless where similar evidence was admitted


no error in denying disclosure where the informant's testimony in Suarez was not essential to the appellant's defense as was the case in Roviaro because the confidential informant therein represented the only likely source of exculpatory information.


Context: In McCorkindale, in addition to the general principles articulated above, this court considered the proper standards for determining the amount in controversy when a state court rule -- such as Rule 1.403 of the Iowa Rules of Civil Procedure -- prohibits the pleading of a specific amount in controversy: Instead of the "legal certainty" test, the defendant is required to prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount.

noting that the rule that the party invoking federal jurisdiction must prove the requisite amount by a preponderance of the evidence "applies even in removed cases where the party invoking jurisdiction is the defendant."

McCorkindale, 909 F.Supp. at 651-53; see Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir.2009) (noting that “[w]here the defendant seeks to invoke federal jurisdiction through removal, however, it bears the burden of proving that the jurisdictional threshold is satisfied.”); see also James Neff Kramper Family Farm P’ship, 393 F.3d 828, 831 (8th Cir.2005) (noting that the rule that the party invoking federal jurisdiction must prove the requisite amount by a preponderance of the evidence “applies even in removed cases where the party invoking jurisdiction is the defendant.”); OnePoint Solutions, L.L.C. v. Borchert, 486 F.3d 342, 349 (8th Cir.2007) (noting that the party invoking jurisdiction “has the burden" of proving the requisite amount by a preponderance of the evidence.”).

noting that "[w]here the defendant seeks to invoke federal jurisdiction through removal, however, it bears the burden of proving that the jurisdictional threshold is satisfied."


noting that the party invoking jurisdiction "has the burden" of proving the requisite amount by a preponderance of the evidence."


Context: In an attempt to do so, the Lorenzens base subject matter jurisdiction on 28 U.S.C. SS 1346. As a matter of law, this will not do. Sovereign immunity is not waived by a statute of general jurisdiction.

noting that 28 U.S.C. SS 1340 "does not constitute a waiver of sovereign immunity"

Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir.2002); see Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir.1994) (“Section 1346 is a general jurisdiction statute that does not constitute a separate waiver of sovereign immunity.”); Perkins v. United States, 314 F.Supp.2d 664, 667 (E.D.Tex.2004) (“Despite its seeming breadth, courts view [§ 1346(a)(1) ], standing alone, as insufficient to waive sovereign immunity.”); see also Guthrie v. Sawyer, 970 F.2d 733, 735 (10th Cir.1992) (noting that 28 U.S.C. § 1340 “does not constitute a waiver of sovereign immunity”).

"Section 1346 is a general jurisdiction statute that does not constitute a separate waiver of sovereign immunity."


Context: First, Devenport could not have been sentenced to imprisonment; imprisonment becomes a sentencing option only upon the second violation of the Wisconsin drunk driving statute. Because the penalty for a first offense is only a civil forfeiture, and there is no possibility of imprisonment, Devenport's offense is not a crime under Wisconsin law.

"The State of Wisconsin has chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible."

See State v. McAllister, 107 Wis.2d 532, 319 N.W.2d 865, 868 (1982) (acknowledging that previous convictions under § 346.63(1) may be civil or criminal); State v. Peterson, 104 Wis.2d 616, 312 N.W.2d 784, 786 (1981) (“[T]he legislature intended that violations of state traffic laws involving forfeitures be treated as civil offenses .... ”); see also Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732 (1984) (“The State of Wisconsin has chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible.”).

acknowledging that previous convictions under SS 346.63(1) may be civil or criminal


"[T]he legislature intended that violations of state traffic laws involving forfeitures be treated as civil offenses .... "


Context: The court rejects Mendoza's reasoning finding that the ninety-day period relevant to 18 U.S.C. SS 3164 does not begin to run until the defendant is in federal custody pursuant to a pre-trial detention order issued by a federal judicial officer.

dual sovereignity requires that the federal government in no way be bound by the action of the state prosecutorial authorities absent "a clear showing of federal intrusion into, and control over state decision-making processes"

See United States v. Ferrs, 503 F.Supp. 187 (E.D.Pa.1980) aff'd 676 F.2d 688 (1982) (a defendant does not become an "accused” for Speedy Trial Act purposes until he is under federal arrest); see also United States v. Mejias, 417 F.Supp. 585, 591 n. 6 (S.D.N.Y.) aff’d 552 F.2d 435 (2d Cir.1976), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977) (dual sovereignity requires that the federal government in no way be bound by the action of the state prosecutorial authorities absent "a clear showing of federal intrusion into, and control over state decision-making processes”).

a defendant does not become an "accused" for Speedy Trial Act purposes until he is under federal arrest


Context: At the outset, the court notes that the Second Circuit has strongly suggested that actions taken without authority under state law, such as when a board lacks jurisdiction over property, give rise to a conclusion that the state entity lacked a rational basis for their actions, and that such actions violate substantive due process.

holding that where a zoning board had no authority under state law to take certain actions with respect to a protected property interest a "trier of fact could conclude that there was no rational basis for the [Town's zoning board's] actions, and that, as a result, the [zoning board] violated appellants' rights to substantive due process."

See Brady, 863 F.2d at 216 (holding that where a zoning board had no authority under state law to take certain actions with respect to a protected property interest a “trier of fact could conclude that there was no rational basis for the [Town’s zoning board’s] actions, and that, as a result, the [zoning board] violated appellants’ rights to substantive due process.”); see also Cine SK8, 507 F.3d at 789 (“[I]f the Town Board did not have authority for the actions it took regarding Fun Quest’s permit — as it appears it did not — the Board’s actions were ultra vires and, as a result, sufficiently arbitrary to amount to a substantive due process violation.”); TZ Manor, LLC v. Daines, 815 F.Supp.2d 726, 745 (S.D.N.Y.2011) (“Cine SK8 can be read broadly to stand for the proposition that any governmental action taken outside the scope of the defendant’s authority, i.e., an ‘ultra vires’ act, is ‘sufficiently arbitrary to amount to a substantive due process violation.’”) (quoting Cine SK8, 507 F.3d at 789).

"[I]f the Town Board did not have authority for the actions it took regarding Fun Quest's permit -- as it appears it did not -- the Board's actions were ultra vires and, as a result, sufficiently arbitrary to amount to a substantive due process violation."


Context: And they speak with law enforcement officials to discuss particular investigations and share information with other insurers. Even assuming that the administrative exemption would apply to an employee whose duties were primarily these, GEICO has pointed to nothing in the record that would support a conclusion that these responsibilities were any more than a minor part of the Investigators' jobs, either in their importance or in the amount of the Investigators' time that they occupy.

holding that employer "bears the full burden of persuasion for the facts requisite to an exemption"

See Clark v. J.M. Benson Co., 789 F.2d 282, 286 (4th Cir.1986) (holding that employer "bears the full burden of persuasion for the facts requisite to an exemption”); see also Schaefer v. Indiana Mich. Power Co., 358 F.3d 394, 403 (6th Cir.2004) (holding that even though some of employee’s duties appeared to satisfy the directly related element, the element was not satisfied where those duties were not part of his primary duty).

holding that even though some of employee's duties appeared to satisfy the directly related element, the element was not satisfied where those duties were not part of his primary duty


Context: The object of restitution is to restore the status quo and return the parties to the positions they occupied before the transactions at issue occurred.

equitable restitution consists of "restoring the status quo and ordering the return of that which rightfully belongs to the purchaser or tenant"

Porter, 328 U.S. at 402, 66 S.Ct. 1086 (equitable restitution consists of “restoring the status quo and ordering the return of that which rightfully belongs to the purchaser or tenant”); United States v. Long, 537 F.2d 1151, 1153 (4th Cir.1975) (restitution consists of restoring the injured party “to the position he formerly occupied either by the return of something which he formerly had or by the receipt of its equivalent in money”) (quoting Restatement of Restitution, § 1, cmt. a (1937)); see also SEC v. AMX Int’l, Inc., 7 F.3d 71, 74-75 (5th Cir.1993) (“[r]estitution ... has the goal of making the aggrieved party whole”); In re First Penn Corp., 793 F.2d 270, 272 (10th Cir.1986) (“[t]he object of restitution is to return the parties to the position that existed before the transaction occurred”).

"[r]estitution ... has the goal of making the aggrieved party whole"


"[t]he object of restitution is to return the parties to the position that existed before the transaction occurred"


Context: The directive says no such thing. Indeed, the reality of agency operations makes it clear that ALJs cannot independently rule on the legality of third-party human studies, because they may not ignore the Administrator's unequivocal statement prohibiting the agency from considering such studies.

"It is commonly recognized that ALJs are entirely subject to the agency on matters of law."

See, e.g., Iran Air v. Kugelman, 996 F.2d 1253, 1260 (D.C.Cir.1993) (“It is commonly recognized that ALJs are entirely subject to the agency on matters of law.”) (internal quotations omitted); Mullen v. Bowen, 800 F.2d 535, 540 n. 5 (6th Cir.1986); Antonin Scalia, The ALJ Fiasco - A Repri.se, 47 U. Chi. L.Rev. 57, 62 (1979); see also Ass’n of Admin. Law Judges, Inc. v. Heckler, 594 F.Supp. 1132, 1141 (D.D.C.1984) (“Although an ALJ may dispute the validity of agency policy, the agency may impose its policy through the administrative appeals process.”).

"Although an ALJ may dispute the validity of agency policy, the agency may impose its policy through the administrative appeals process."


Context: Failure to supervise is not a viable theory for recovery of compensatory damages in a Title II ADA claim, since such failure is necessarily not directed at a particular disabled individual.

"Acts and omissions which have a disparate impact on disabled persons in general are not specific acts of intentional discrimination against the plaintiff in particular."

See Dillery v. City of Sandusky, 398 F.3d 562, 568 (6th Cir.2005) (“Acts and omissions which have a disparate impact on disabled persons in general are not specific acts of intentional discrimination against the plaintiff in particular.”) (quotation omitted); see also Scozzari v. City of Clare, 723 F.Supp.2d 945, 973 (E.D.Mich.2010) (recounting how the court earlier “denied Plaintiff leave to amend the complaint to allege a claim based on the City’s failure to train its officers under the ADA because pursuing such a claim would be futile”).

recounting how the court earlier "denied Plaintiff leave to amend the complaint to allege a claim based on the City's failure to train its officers under the ADA because pursuing such a claim would be futile"


Context: Even assuming, without deciding, that Mr. Klepacki is qualified as an expert regarding the matters he intends to address, the process he used in forming his expert opinion must be sufficiently reliable under Daubert and its progeny.

holding that "[r]ulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert's methodology"

See Quiet Tech. DC-8, Inc., 326 F.3d at 1342 (stating that “one may be considered an expert but still offer unreliable testimony”); cf. McCorvey, 298 F.3d at 1257 (holding that “[r]ulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert’s methodology”).

stating that "one may be considered an expert but still offer unreliable testimony"


Context: We have considered these issues and conclude they are without merit, regardless of the status of appellants' adoption petition. Accordingly, we decline to address them further.

holding that appellate court "need not analyze and address in writing each and every argument, issue, or claim raised and properly before us on appeal"

See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (holding that appellate court “need not analyze and address in writing each and every argument, issue, or claim raised and properly before us on appeal”); see also id. at 889 (stating “it is a maxim of appellate review that the nature and extent of an opinion rendered by an appellate court is largely discretionary with that court”).

holding that for purposes of certiorari review, court of appeals must "identify] the basis for refusing to treat an issue"

Cf. Reese v. Reese, 1999 UT 75, ¶ 8, 984 P.2d 987 (holding that for purposes of certiorari review, court of appeals must “identify] the basis for refusing to treat an issue”).


Context: We begin our analysis of proper class certification with the issue of standing. No class action may proceed unless there is a named plaintiff with standing to represent the class.

Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987) (only after the court determines that the named plaintiffs have standing should it address the question of whether the named plaintiffs have representative capacity, as defined by Federal Rule of Civil Procedure 23(a), to assert the rights of others), cert. denied, 486 U.S. 1005, 108 S.Ct. 1729, 100 L.Ed.2d 193 (U.S.Fla.1988); see also Baptist Hosp. of Miami, Inc. v. Demario, 683 So.2d 641, 643 (Fla. 3d DCA 1996) (court determined inter alia that if the putative class representative has no standing, he has no right to pursue the case as a class action).


Context: Third, even assuming that the risk contribution doctrine imposed retroactive liability and that judicial decisions in the civil law area were subject to constitutional challenge on retroactivity grounds, the doctrine does not violate either the Due Process or Takings Clause. As to the former, a civil statute that imposes retroactive liability will be found to violate due process only if it is "arbitrary and irrational."

stating that "when a question of retroactivity is involved" the party claiming a due process violation must show that the provision in question is arbitrary and irrational

Usery, 428 U.S. at 15, 96 S.Ct. 2882 (holding that black lung compensation scheme satisfied due process because it was a “rational measure to spread the costs of the employee’s disabilities to those who have profited from the fruits of their labor”); see also Central States, SE & SW v. Midwest Motor Express, 181 F.3d 799, 806 (7th Cir.1999) (stating that “when a question of retroactivity is involved” the party claiming a due process violation must show that the provision in question is arbitrary and irrational).

holding that black lung compensation scheme satisfied due process because it was a "rational measure to spread the costs of the employee's disabilities to those who have profited from the fruits of their labor"


Context: A motion for summary judgment presents different opportunities and imposes different responsibilities on the parties.

"It was [the plaintiffs] responsibility to show that there were genuine issues of material fact in the record that precluded the summary judgment Appellees sought below."

See Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir.2006) (“Without some guidance, we will not mine a summary judgment record searching for nuggets of factual disputes to gild a party’s arguments.”); see also Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir.2009) (holding that the “failure to oppose a basis for summary judgment constitutes waiver of that argument” on appeal). Thus, unlike the plaintiff in Schneider, who did not submit briefing in support of her arguments, Ames had the opportunity to oppose Nationwide’s motion and was responsible for presenting any argument that might have precluded summary judgment in favor of Nationwide. See Satcher, 558 F.3d at 735 (“It was [the plaintiffs] responsibility to show that there were genuine issues of material fact in the record that precluded the summary judgment Appellees sought below.”); see also Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir.1995) (“If a party fails to assert a legal reason why summary judgment should not be granted, that ground is waived and cannot be considered or raised on appeal.” (quoting Vaughner v. Pulito, 804 F.2d 873, 877 n. 2 (5th Cir.1986))); Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir.1983) (“It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal.”); Frank C. Bailey Enters., Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir.1978) (per curiam) (“[A]n appellate court, in reviewing a summary judgment order, can only consider those matters presented to the district court.”).

"Without some guidance, we will not mine a summary judgment record searching for nuggets of factual disputes to gild a party's arguments."


"It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal."


"[A]n appellate court, in reviewing a summary judgment order, can only consider those matters presented to the district court."


Context: Under the facts as presented by Watson, it would have been clear to reasonable officers that the Chrisman exception did not apply because Watson was no longer in his home and the underlying law enforcement needs that justified the Chrisman exception had dissipated. Similarly, given the lack of governmental interest justifying the use of force, it would have been clear to reasonable officers that even the limited amount of force they employed was unreasonable.

See Guite v. Wright, 147 F.3d 747, 750 (8th Cir.1998) (officers used excessive force when they pushed an individual up against an open door when he refused to consent to their entry); see also Liberal v. Estrada, 632 F.3d 1064, 1078-79 (9th Cir.2011) (officers used excessive force when they pushed an individual against a police car).


Context: The district court in that case refused a proposed defense instruction that stated that the intent to deprive the victim of his civil rights needed to be the "predominant purpose" of the conspiracy. On appeal, we affirmed the district court's decision, noting that the proposed instruction would inappropriately invite jurors to override the guiding purpose of the legislation -- the prevention of constitutional injuries' -- by also finding that the parties had some other permissible purpose.

approving under 18 U.S.C. SS 1842 a jury instruction stating it did not matter "that a defendant may also have been motivated by hatred, anger or revenge, or some other emotion"

Ellis, 595 F.2d at 162; see also United States v. Johnstone, 107 F.3d 200, 210 (3d Cir.1997) (approving under 18 U.S.C. § 1842 a jury instruction stating it did not matter “that a defendant may also have been motivated by hatred, anger or revenge, or some other emotion”); cf. United States v. Bledsoe, 728 F.2d 1094, 1098 (8th Cir.1984) (upholding mixed motives instruction under 18 U.S.C. § 245 that stated that “the presence of other motives ... does not make his conduct any less a violation” of the statute); Craft, 484 F.3d at 926 (stating that, under § 3631, the government need only prove that “race or ethnicity partially motivated” the crimes).

upholding mixed motives instruction under 18 U.S.C. SS 245 that stated that "the presence of other motives ... does not make his conduct any less a violation" of the statute


stating that, under SS 3631, the government need only prove that "race or ethnicity partially motivated" the crimes


Context: The more completely they are achieved, the more successful the crime." Accordingly, if these details were necessary to a proper indictment and a subsequent conspiracy conviction, "the difficulties, not only of discovery, but of certainty of proof and correlating proof with pleading would become insuperable, and conspirators would go free by their very ingenuity."

"an offense that is the object of a conspiracy need not be delineated in the indictment with the same particularity as a substantive offense"

Id.; see also Hooker, 841 F.2d at 1229 (“an offense that is the object of a conspiracy need not be delineated in the indictment with the same particularity as a substantive offense”); cf. United States v. Wilson, 565 F.Supp. 1416, 1439 (S.D.N.Y.1983) (denying motion for bill of particulars regarding information about specific conduct of conspirators). Therefore, the indictment here is not unconstitutionally vague for its failure to include such information.


Context: If a party chooses not to assert, or expressly disavows, a certain argument on appeal, we generally will not consider that argument in our review.

"[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief."

See Perry v. Woodward, 199 F.3d 1126, 1141 n. 13 (10th Cir.1999) (“This court ... will not craft a party’s arguments for him”); Vaz Dos Reis v. Holder, 606 F.3d 1, 4 (1st Cir.2010) (“When a party disavows a particular theory of the case, it is not an appellate court’s proper role to make the disavowed argument for him.”); cf. Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”).

"This court ... will not craft a party's arguments for him"


"When a party disavows a particular theory of the case, it is not an appellate court's proper role to make the disavowed argument for him."


Context: The defendants also object to FACE'S reference to the reactions of listeners. In FACE, "intimidatfion]" is defined as that conduct which "place[s] a person in reasonable apprehension of bodily harm to him- or herself or another." 18 U.S.C. SS 248(e)(3). The defendants argue that, because this passage makes application of the statute depend on the impact of the communication on its audience, FACE is inherently content-based. I disagree. The "reasonable apprehension" language in FACE appears to be a reasonable attempt to limit application of the statute to "true threats."

defining a threat as "whether the recipient could reasonably have regarded the defendant's statement as a threat"

See, e.g., United States v. Aman, 31 F.3d 550, 553 (7th Cir.1994) (defining a threat as "whether the recipient could reasonably have regarded the defendant’s statement as a threat”); Wurtz v. Risley, 719 F.2d 1438, 1441 (9th Cir.1983) (“implicit in the nature of such punishable threats is a reasonable tendency to produce in the victim a fear that the threat will be carried out”).

18 U.S.C. SS 241 unconstitutional as applied because defendant punished for threats of force that were not "true threats"

Cf. United States v. Lee, 6 F.3d 1297, 1301 (8th Cir.1993) (en banc) (18 U.S.C. § 241 unconstitutional as applied because defendant punished for threats of force that were not "true threats”), cert. denied, - U.S. -, 114 S.Ct. 1550, 128 L.Ed.2d 199 (1994).


"implicit in the nature of such punishable threats is a reasonable tendency to produce in the victim a fear that the threat will be carried out"


Context: Our review of the record reveals that the testimony was not prejudicial in light of the overwhelming evidence of appellant's guilt. We are convinced, therefore, that any possible error was harmless beyond a reasonable doubt.

Commonwealth v. Story, 476 Pa. 391, 405, 383 A.2d 155, 162 (1978) (an error is harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless); see also, Commonwealth v. Wharton, 530 Pa. 127, 143, 607 A.2d 710, 718 (1992) (admission of codefendant’s confession implicating defendant was harmless error given overwhelming evidence of defendant’s guilt); Commonwealth v. Thomas, supra, 443 Pa. at 245, 279 A.2d at 26 (evidence of coconspirator’s conviction at separate trial in murder prosecution, was not prejudicial in light of overwhelming evidence of petitioner’s guilt).

admission of codefendant's confession implicating defendant was harmless error given overwhelming evidence of defendant's guilt


evidence of coconspirator's conviction at separate trial in murder prosecution, was not prejudicial in light of overwhelming evidence of petitioner's guilt


Context: We find that the case law of this court and of the Supreme Court demonstrates that the right to petition a local, elected representative for assistance in dealing with local government agencies was clearly established at the time that the relevant events took place and that a reasonable local official would have known that retaliating against a citizen exercising that right is unlawful. Moreover, a reasonable city official would have known that the Constitution prohibits retaliation for a citizen's exercise of his First Amendment right to Free Speech, whether that speech takes written, oral, or another form.

"[T]he right to criticize public officials is clearly protected by the First Amendment."

See, e.g., Jenkins, 513 F.3d at 588 (“[T]he right to criticize public officials is clearly protected by the First Amendment.”); see also Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945) (“It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.”).

"It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable."


Context: Third, Solomon's conduct closely resembles conduct for which substantial sentences have been approved in the past.

five years' imprisonment approved for defendant who "roughed up" and threatened victim with a knife in an attempted robbery

See, e.g., Griffith v. State, 578 P.2d 578, 582 (Alaska 1978) (five years’ imprisonment approved for defendant who “roughed up” and threatened victim with a knife in an attempted robbery); Holloway v. State, 535 P.2d 467 (Alaska 1975) (five years’ imprisonment approved for defendant who struck victim with full beer can in robbery of $300); Hixon v. State, 508 P.2d 526 (Alaska 1973) (ten years’ imprisonment affirmed for defendant who threw prepared pint of kerosene in victim’s face in order to snatch victim’s money bag).

apparently approving a sentence of ten years' imprisonment for a first felony offender convicted of a strong-arm robbery, but remanding in order to obtain a psychiatric evaluation

Cf. Hawthorne v. State, 501 P.2d 155, 157-58 (Alaska 1972) (apparently approving a sentence of ten years’ imprisonment for a first felony offender convicted of a strong-arm robbery, but remanding in order to obtain a psychiatric evaluation).


five years' imprisonment approved for defendant who struck victim with full beer can in robbery of $300


ten years' imprisonment affirmed for defendant who threw prepared pint of kerosene in victim's face in order to snatch victim's money bag


Context: Here, clause nine did not limit expenditures of principal to only "necessary" payments. Accordingly, Beatrice's wide discretion as trustee permitted her to use trust principal to pay for tax liability and for Douvadjian's services, irrespective of any other assets to which she had access.

where trust expressed unqualified intention to provide support, beneficiary's personal assets were not properly considered by trustee

Compare Burnett v. Williams, 323 Mass. 517, 522-23 (1948) (where trust expressed unqualified intention to provide support, beneficiary’s personal assets were not properly considered by trustee); contrast Corkery v. Dorsey, 223 Mass. 97, 102-03 (1916) (where trust language allowed disbursements where beneficiary was “in need of aid,” trustee obligated to consider beneficiary’s personal assets in making payments).

where trust language allowed disbursements where beneficiary was "in need of aid," trustee obligated to consider beneficiary's personal assets in making payments


Context: Defendants argue that a challenge to the adequacy of testing may implicate labeling issues since additional testing might disclose the need for further warnings. The court, however, is unwilling to read FIFRA's preemption so broadly, particularly in light of the presumption against preemption which counsels a narrow construction of preemption' provisions.

Cipollone, — U.S. at —, 112 S.Ct. at 2618; Florida Lime, 373 U.S. at 144, 83 S.Ct. at 1218. Instead, the court finds the reasoning of the Fourth and First Circuits persuasive and holds that “claims for negligent testing, manufacturing, and formulating ... are not preempted by FIFRA.” Worm v. American Cyanamid, 5 F.3d 744, 747 (4th Cir.1993) (emphasis added); Williams v. State of Louisiana, 640 So.2d 365, 367 (La. App. 1st Cir.1994); see also DerGazarian v. Dow Chem., 836 F.Supp. 1429, 1447 (W.D.Ark.1993) (FIFRA does not preempt claims for failure to use ordinary care in formulation, inspection, and testing); Wright v. Dow Chem. U.S.A., 845 F.Supp. 503, 507 (M.D.Tenn.1993) (FIFRA does not preempt non-labeling claims for defective design and failure to properly test and study); cf. Cipollone, — U.S. at -, 112 S.Ct. at 2622 (Public Health Cigarette Smoking Act of 1969 does not preempt claims that rely solely on testing or research practices).


FIFRA does not preempt non-labeling claims for defective design and failure to properly test and study


Context: By failing to raise any argument in his brief, Xu waives any challenge to the IJ's adverse credibility determination. The IJ's adverse credibility determination alone was dispositive of Xu's application for asylum, withholding of removal, and CAT relief.

See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004) (holding that to establish asylum eligibility based on future persecution, an applicant must show that he or she subjectively fears persecution and that this fear is objectively reasonable); Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (holding that when the asylum, withholding of removal, and CAT claims are based on the same factual predicate, a credibility ruling necessarily forecloses relief in each); see also Steevenez v. Gonzales, 476 F.3d 114, 118 (2d Cir.2007) (denying a petition for review because petitioner failed to challenge a dispositive ground for relief).


holding that when the asylum, withholding of removal, and CAT claims are based on the same factual predicate, a credibility ruling necessarily forecloses relief in each


Context: But, as the Supreme Court has noted, escape from custody is a "continuing offense." McCargo's admission that he acquired the gun for "protection" is therefore sufficient to show that he possessed it in connection with the felony -- and that such possession was not merely coincidental.

holding that "in light of our recognition that escape presents a continuing threat of violence until the escapee is safely returned to custody, we hold that for purposes of SS 2K2.1(b

See Spurgeon, 117 F.3d at 644 (the “defendant’s own assertion that he had the weapon for protection” indicated that the possession of the firearm was in connection with a narcotics felony); see also United States v. Brown, 314 F.3d 1216, 1224 (10th Cir.2003) (holding that “in light of our recognition that escape presents a continuing threat of violence until the escapee is safely returned to custody, we hold that for purposes of § 2K2.1(b)(5), every escape is sufficiently continuing such that possession of a gun subsequent to the initial departure from custody can qualify as being ‘in connection with’ the escape”).

the "defendant's own assertion that he had the weapon for protection" indicated that the possession of the firearm was in connection with a narcotics felony


Context: While Dr. Mahan's conduct (construing the facts in the light most favorable to Ms. Morris) was unquestionably juvenile, unprofessional, and perhaps independently tortious, viewed in context, we cannot conclude from this record that it objectively altered the terms and conditions of Ms. Morris's employment.

"Title VII is not a federal guarantee of refinement and sophistication in the workplace' -- -in this context, it prohibits only harassing behavior that is so severe or pervasive as to render the workplace objectively hostile or abusive."

See Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th Cir.1997) (“Title VII is not a federal guarantee of refinement and sophistication in the workplace' — -in this context, it prohibits only harassing behavior that is so severe or pervasive as to render the workplace objectively hostile or abusive.”); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (“[N]ot all workplace conduct that may be described as harassment affects a term, condition, or privilege of employment within the meaning of Title VII.” (internal quotation marks omitted)); cf. Chavez, 397 F.3d at 833 (“Title VII is not a code of workplace conduct, nor was it ‘designed to bring about a magical transformation in the social mores of American workers!.]’ ” (quoting Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1538 (10th Cir.1995))); Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.1995) (suggesting that Title VII is “not designed to purge the workplace of vulgarity”).

suggesting that Title VII is "not designed to purge the workplace of vulgarity"


Context: The judge never commented on the merits of Mitchell's case. Because it is clear the judge was admonishing Mitchell and making the remarks to maintain control over the judicial proceedings and to preserve courtroom decorum, we reject Mitchell's judicial bias contention.

See Harris, 869 F.2d at 401-02 (judge may properly comment on presentation of evidence to exercise control over trial and to conduct trial efficiently); see also Deary v. City of Glou cester, 9 F.3d 191, 194-95 (1st Cir.1993) (friction between court and counsel did not deprive party of fair trial).


Context: Both federal and New York state courts have repeatedly affirmed the power of the court to determine that the interests of a child or incompetent would best be represented not by a general representative, such as parent or guardian, but by a guardian ad litem or "next friend."

where the interests of a child and her legal guardian were adverse, the child was "not otherwise represented" as stated in Rule 17(c

In Hoffert v. General Motors Corp., 656 F.2d 161 (5th Cir.1981), cert. denied sub nom. Cochrane & Bresnahan v. Smith, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982), the appearance of a conflict of interest between a minor and his general representative justified the appointment of a guardian ad litem. See also Adelman v. Graves, 747 F.2d 986 (5th Cir.1983); Noe v. True, 507 F.2d 9 (6th Cir.1974) (where the interests of a child and her legal guardian were adverse, the child was “not otherwise represented” as stated in Rule 17(c) and thus appointment of a guardian ad litem was appropriate); cf. Developmental Disabilities Advocacy Center, Inc. v. Melton, 689 F.2d 281 (1st Cir.1982) (suit by a “next friend” not allowed where there was no discernible conflict in the general representative and the general representative opposed the suit as not being in the incompetent’s best interest).

suit by a "next friend" not allowed where there was no discernible conflict in the general representative and the general representative opposed the suit as not being in the incompetent's best interest


Context: .In Tang, the working conditions complained of included inter alia being placed on administrative leave and being relocated within the building. There is a First Amendment distinction, however, between complaints about these types of working conditions, which are not protected and complaints about fellow employees' official misconduct, which are protected.

Guilloty Perez, 339 F.3d at 52 (holding that law enforcement agent’s internal reports of misconduct by fellow officers involved matters of public concern and contrasting such speech with employee’s complaints in Tang) (citation omitted); Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 11-12 n. 10 (1st Cir.2003) (holding that a public employee’s internal memo-randa raising concerns about public corruption are protected First Amendment speech because they addressed a matter of public concern); O’Connor, 994 F.2d at 916 (citing Givhan v. Western Line Consol. Sch. Dist. 439 U.S. 410, 415-16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) for the proposition that First Amendment protection is not lost where an employee discloses official misconduct directly to employer rather than to the public); see also Taylor v. Keith, 338 F.3d 639, 643-46 (6th Cir.2003) (holding that police reports raising allegations of misconduct by other officers touched upon a matter of public concern even'if drafted within the scope of employment and not disclosed to the media).

holding that law enforcement agent's internal reports of misconduct by fellow officers involved matters of public concern and contrasting such speech with employee's complaints in Tang


holding that a public employee's internal memo-randa raising concerns about public corruption are protected First Amendment speech because they addressed a matter of public concern


Context: When an official's intent or the reasons for his or her actions are an essential element of the underlying violation, we have treated factual disputes over intent just like any other factual dispute that can justify a denial of qualified immunity.

See Tompkins v. Vickers, 26 F.3d 603, 607-10 (5th Cir.1994) (holding that the existence of a retaliatory motive was a factual issue that precluded summary judgment on qualified immunity in a First Amendment case in which a teacher claimed that he had been transferred in retaliation for criticizing the school superintendent); see also Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 535 & n. 6 (5th Cir.1997) (stating that the court lacks jurisdiction on interlocutory appeal to review whether there is a genuine issue of fact as to intentional discrimination).


Context: This test of a school's capacity to implement a student's IEP, however, is limited to facts uncovered by a parent prior to rejecting the placement option. It does not permit litigants to establish a substantive violation based on facts discovered for the first time at an IHO hearing.

"[A] school district's proposed placement school must be evaluated prospectively (i.e., at 'the time of the parents' placement decision') and cannot be based on mere speculation."

See R.E., 694 F.3d at 187 (“In determining the adequacy of an IEP, both parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision.” (emphasis added)); see also M.O., 793 F.3d at 244 (“[A] school district’s proposed placement school must be evaluated prospectively (i.e., at ‘the time of the parents’ placement decision’) and cannot be based on mere speculation.”).

"In determining the adequacy of an IEP, both parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision." (emphasis added


Context: This qualifies as a clear order. As to Coe's dancing, grimacing and gesturing while the court announced a ruling, we are at a loss to understand how any attorney could not know that such conduct would be considered contumacious.

See Local Union 542, 552 F.2d at 510 (act is wilful if person knows or should reasonably be aware that conduct is wrongful); cf. Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970) (“It is essential to the proper administration of justice that dignity, order and decorum be the hallmarks of all court proceedings....”)

"It is essential to the proper administration of justice that dignity, order and decorum be the hallmarks of all court proceedings...."


Context: Because Fox does not challenge the district court's dismissal of hostile work environment claims, those claims are abandoned.

See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (when a litigant, even if proceeding pro se, raises an issue before the district court but does not raise it on appeal, it is abandoned); see also Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir.2005) (holding that a party’s “single conclusory sentence” in his brief on appeal regarding a claim of error was tantamount to a waiver of that claim); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).

holding that a party's "single conclusory sentence" in his brief on appeal regarding a claim of error was tantamount to a waiver of that claim


"Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal."


Context: Other courts examine only whether a plaintiffs losses flow from the diminution of value of the shares held in the corporation.

"Plaintiffs have failed to establish standing because ... [they] suffered only through diminution in the value of their share[s]" in the corporation

See Perlman, 1995 WL 110076, at *3 (“It is a well-settled rule of law that even in cases of alleged corporate fraud, a decrease in the value of stock in and of itself is not an injury which confers standing to sue upon an individual stockholder.”); see also Lewin v. Lipper Convertibles, Nos. 03 Civ. 1117(RMB), 03 Civ. 2632(RMB), 756 F.Supp.2d 432, 441-42, 2010 WL 4669040, at *7 (S.D.N.Y. Nov. 17, 2010) (“Plaintiffs have failed to establish standing because ... [they] suffered only through diminution in the value of their share[s]” in the corporation).

"It is a well-settled rule of law that even in cases of alleged corporate fraud, a decrease in the value of stock in and of itself is not an injury which confers standing to sue upon an individual stockholder."


Context: Fed. R.Civ.P. 23(b)(3). In the context of granting approval to a proposed class settlement, settlement is relevant to the predominance inquiry.

"[A] district court need not inquire whether the case, if tried, would present intractable management problems ... for the proposal is that there be no trial."

See Amchem, 521 U.S., at 620, 117 S.Ct. 2231 (“[A] district court need not inquire whether the case, if tried, would present intractable management problems ... for the proposal is that there be no trial.”); see also Gunnells v. Healthplan Services, Inc., 348 F.3d 417, 440 (4th Cir.2003) (noting the settlement is relevant to a finding of predominance, and recognizing that Rule 23 creates an “interactive” series of considerations to be used in certifying classes).

noting the settlement is relevant to a finding of predominance, and recognizing that Rule 23 creates an "interactive" series of considerations to be used in certifying classes


Context: Although section 1346(a)(1) cross-references the jurisdiction of the United States Court of Federal Claims, it only confers jurisdiction on United States District Courts.

See Hinck v. United States, 64 Fed.Cl. 71, 76 (2005), aff'd, 446 F.3d 1307 (Fed.Cir.2006) (recognizing that the reference to the United States Court of Federal Claims in section 1346(a)(1) is merely a cross-reference to the Tucker Act); see also Doe v. United States, 372 F.3d 1308, 1312 (Fed.Cir.2004) (distinguishing the Little Tucker Act, 28 U.S.C. § 1346, from the Tucker Act, 28 U.S.C. § 1491).

distinguishing the Little Tucker Act, 28 U.S.C. SS 1346, from the Tucker Act, 28 U.S.C. SS 1491


Context: In the present case, the majority views HRFs quarter of Section 8 as the "land in question." One would therefore expect, if it were following the majority's analysis, that the Venetie Court would have narrowly considered whether just the land on which the school was to be built was a dependent Indian community. But the Court decidedly did not do so. Instead, the Court in Venetie looked at all of the land that previously composed the Venetie Reservation--not just the site of the proposed school--to determine whether that land constituted a dependent Indian community.

"In this case, we must decide whether approximately 1.8 million acres of land in northern Alaska, owned in fee simple by the Native Village of Venetie Tribal Government pursuant to the [ANC-SA], is 'Indian country.'"

Venetie, 522 U.S. at 523, 118 S.Ct. 948 (“In this case, we must decide whether approximately 1.8 million acres of land in northern Alaska, owned in fee simple by the Native Village of Venetie Tribal Government pursuant to the [ANC-SA], is ‘Indian country.’”) (emphasis added); see also id. at 532, 118 S.Ct. 948 (“The Tribe’s ANCSA lands do not satisfy either of these requirements.”).

"The Tribe's ANCSA lands do not satisfy either of these requirements."


Context: In Miller, the Court concluded that an amendment to Florida's sentencing guidelines violated the Ex Post Facto Clause by increasing the petitioner's presumptive sentence after he had committed the offense of conviction. The Court began its discussion by noting that "[i]t is axiomatic that for a law to be ex post facto it must be more onerous than the prior law." Addressing the Florida sentencing guidelines, the Court noted that the amendment at issue disadvantaged the petitioner; it then commented that "[cjonsidering the revised guidelines law as a whole" did not change the result because the State was unable "to identify any feature of the revised guidelines law that could be considered ameliorative."

holding that statutory provision that reduced retroactively amount of good time reduction to prisoners' sentences was not saved by potentially ameliorative provisions enacted at the same time because their application was purely discretionary

Miller, 482 U.S. at 431-32,107 S.Ct. at 2451-52 (emphasis added); see also Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2298-99, 53 L.Ed.2d 344 (1977) (noting that, in evaluating an ex post facto claim, the Court “must compare the two statutory procedures in toto to determine if the new may be fairly characterized as more onerous”); cf. Weaver v. Graham, 450 U.S. 24, 34-36, 101 S.Ct. 960, 967-68, 67 L.Ed.2d 17 (1981) (holding that statutory provision that reduced retroactively amount of good time reduction to prisoners’ sentences was not saved by potentially ameliorative provisions enacted at the same time because their application was purely discretionary).

noting that, in evaluating an ex post facto claim, the Court "must compare the two statutory procedures in toto to determine if the new may be fairly characterized as more onerous"


Context: The negotiated procedure, though not open to all conceivable complaints, did cover Suzal's. Using terms of art whose meaning derives from the CSRA, the collective bargaining agreement defined grievable matters to include "prohibited personnel practices" as well as "adverse actions and removals for performance".

holding that the expiration and nonrenewal of a term appointment is not an "adverse action"

See 5 U.S.C. § 7512 (effectively defining “adverse actions” to include removals, suspensions, reductions in grade or pay, and furloughs); Berger v. Department of Commerce, 3 MSPB 297, 297-98, 3 M.S.P.R. 198 (1980) (holding that the expiration and nonrenewal of a term appointment is not an “adverse action”); cf. National Treasury Employees Union v. MSPB, 743 F.2d 895, 912-15 (D.C.Cir.1984) (holding that short-term layoffs of seasonal employees in accordance with conditions agreed upon at the start of employment are not “furloughs” within the meaning of § 7512). But both of Suzal’s theories about why the Voice of America declined to renew his appointment allege “prohibited personnel practices” within the meaning of the collective bargaining agreement.

holding that short-term layoffs of seasonal employees in accordance with conditions agreed upon at the start of employment are not "furloughs" within the meaning of SS 7512


Context: Moreover, in addition to the officer's testimony, the evidence also shows that Smith engaged in a high-speed, dangerous chase and then attempted to flee from police on foot and that a nine-millimeter, loaded handgun with a bullet in the chamber was found in the front passenger seat after Smith fled from the car.

Causey v. State, 274 Ga. App. 506, 508 (618 SE2d 127) (2005) (loaded weapon, large quantity of narcotics and cash constituted evidence of involvement in drug trade); see generally State v. Jackson, 287 Ga. 646, 652 (697 SE2d 757) (2010) (noting that it is “not unusual” for drug dealers to be armed). This evidence, coupled with other evidence at trial, was sufficient to support Smith’s conviction of possession of cocaine and marijuana with intent to distribute beyond a reasonable doubt.

evidence sufficient where officer testified quantity and packaging of crack cocaine was more consistent with drug sales instead of personal use, and manner of concealment was typical of "street level" drug dealer

See e.g., Thomas v. State, 321 Ga. App. 214, 215 (1) (741 SE2d 298) (2013) (evidence sufficient where officer testified quantity and packaging of crack cocaine was more consistent with drug sales instead of personal use, and manner of concealment was typical of “street level” drug dealer); Horne v. State, 318 Ga. App. 484, 485 (1) (733 SE2d 487) (2012) (evidence of intent to distribute sufficient where officer testified amount of cocaine was greater than what would normally be kept for personal use and drugs were packaged separately for distribution); Flemister v. State, 317 Ga. App. 749, 752 (1) (732 SE2d 810) (2012) (evidence sufficient where officer testified drugs were packaged in a manner commonly associated with the sale of marijuana); Causey, 274 Ga. App. at 508 (evidence of intent to distribute when large quantities of drugs, cash, and a weapon found on defendant’s person).


evidence of intent to distribute sufficient where officer testified amount of cocaine was greater than what would normally be kept for personal use and drugs were packaged separately for distribution


evidence sufficient where officer testified drugs were packaged in a manner commonly associated with the sale of marijuana


evidence of intent to distribute when large quantities of drugs, cash, and a weapon found on defendant's person


Context: Garza-Gorena's sole contention is that he is a U.S. citizen and therefore cannot be removed for his criminal offenses. GarzaGorena's alienage has been established twice, in his 1974 deportation hearing and in his 1987 conviction for illegal re-entry pursuant to 8 U.S.C. SS 1326. General principles of res judicata and collateral estoppel prevent him from re-litigating matters that were finally resolved in earlier proceedings.

See Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir.1987) (per curiam) (holding that the doctrine of res judicata applies to deportation proceedings); see also Pena-Cabanillas v. U.S., 394 F.2d 785, 789 (9th Cir.1968) (holding that collateral estoppel bars an alien from asserting U.S. citizenship when he has been previously convicted for a false claim to U.S. citizenship).


Context: Second, we review O'Laughlin's sufficiency challenge through the lens of federal habeas review. Under the federal habeas statute, we must presume the correctness of all factual determinations made by the state court, see 28 U.S.C. SS 2254(e)(1), and may grant the writ only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," id. SS 2254(d)(1). Under this standard, we must uphold even state court decisions that are incorrect so long as they are reasonable.

"The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable -- a substantially higher threshold."

See Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“For purposes of today’s opinion, the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law.” (emphasis in original)); see also Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (“The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.”).

"For purposes of today's opinion, the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." (emphasis in original


Context: The court conducted a full hearing outside the presence of the jury in which it allowed the defendant to argue against the offer of proof and, after considering the parties' arguments, determined that the probative value of the prior misconduct evidence outweighed its prejudicial tendency. Moreover, any prejudice was minimized by the court's limiting instruction to the jury on the proper use of the misconduct evidence.

"[s]uch a limiting instruction serves to minimize any possible prejudice"

See State v. Lopez, 14 Conn. App. 536, 539, 541 A.2d 902 (1988) (“[s]uch a limiting instruction serves to minimize any possible prejudice”); see also State v. Anderson, 86 Conn. App. 854, 870, 864 A.2d 35 (jury presumed to follow court’s instructions absent clear evidence to contrary), cert. denied, 273 Conn. 924, 871 A.2d 1031 (2005).

jury presumed to follow court's instructions absent clear evidence to contrary


Context: See Matter of S-M-J, 21 I & N Dec. 722, 726-27 (BIA 1997). At least one circuit has chosen to remand an appeal for further proceedings based on the BIA's reliance on outdated information.

remanding based on agency's failure to consult most recent country report and holding INS had "burden of production" based on its "greater access" to the information

See Yang v. McElroy, 277 F.3d 158, 163 (2d Cir.2002) (remanding based on agency’s failure to consult most recent country report and holding INS had “burden of production” based on its “greater access” to the information).

declining to remand for agency's failure to consider most recent country report because it found no cases requiring the BIA to sua sponte take administrative notice of the most recent country report

But see Meghani v. INS, 236 F.3d 843, 848 (7th Cir.2001) (declining to remand for agency’s failure to consider most recent country report because it found no cases requiring the BIA to sua sponte take administrative notice of the most recent country report).


Context: Plaintiffs claim against defendant Turzillo, an employee of the Monroe County Department of Probation, is based solely on his disagreement with the contents of the presentencing report that Turzillo submitted to Justice Klonick. Turzillo is absolutely immune from liability in that regard.

See also Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir.1988) (per curiam) (finding Louisiana probation Officer absolutely immune from claim for damages); Demoran v. Witt, 781 F.2d 155, 157-58 (9th Cir.1985) (same re California probation officer); Hughes v. Chesser, 731 F.2d 1489, 1490 (11th Cir.1984) (same re Alabama probation officer).

"The requirements of New York law with respect to the preparation and submission of presentence reports, along with the procedural mechanisms protecting the defendant's right not to be punished on the basis of inaccurate information in such a report, persuade us that New York probation officers in preparing and furnishing such reports to the courts, like federal probation officers, are entitled to absolute immunity from suits for damages"

Hili v. Sciarrotta, 140 F.3d 210, 214 (2nd Cir.1998) (“The requirements of New York law with respect to the preparation and submission of presentence reports, along with the procedural mechanisms protecting the defendant’s right not to be punished on the basis of inaccurate information in such a report, persuade us that New York probation officers in preparing and furnishing such reports to the courts, like federal probation officers, are entitled to absolute immunity from suits for damages”).


Context: Even if Mosdos was not initially a party to the litigation, it is the current owner of the Nike Site, the development of which was allegedly stymied by the Chestnut Ridge Action. Moreover, after Mosdos gained control of the Nike Site and was added to the Chestnut Ridge Action, Defendants intentionally continued the suit, and thus at that time acted with the requisite intent against Mosdos.

"[T]o advance a continuing violation claim a plaintiff must point to his disparate treatment stemming from a continuous practice of intentional discrimination."

See Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir.2000) (noting that “[t]here are several ways for a plaintiff to plead intentional discrimination,” and that he must simply “allege that a government actor intentionally discriminated against him”); cf. Harris v. City of New York, 186 F.3d 243, 249 (2d Cir.1999) (“[T]o advance a continuing violation claim a plaintiff must point to his disparate treatment stemming from a continuous practice of intentional discrimination.”).

noting that "[t]here are several ways for a plaintiff to plead intentional discrimination," and that he must simply "allege that a government actor intentionally discriminated against him"


Context: As to Cignetti's allegation that the defendants suppressed exculpatory material, the sixth act, it has consistently been held that absolute immunity shields a prosecutor from liability as to claims that they knowingly suppressed exculpatory evidence.

See Reid v. New Hampshire, 56 F.3d 332, 336-37 (1st Cir.1995) (citations omitted) (applying absolute immunity rule to claim that prosecutors withheld exculpatory evidence in direct violation of trial court orders); see also Imbler, 424 U.S. at 425-r26, 96 S.Ct. 984 (recognizing that the decisions concerning the materiality of evidence not revealed to the defense could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials).


Context: It is critical to note that under salvage law, the salvor receives a lien in the property, not title to the property, and as long as the case remains a salvage case, the lienholder cannot assert a right to title even though he may end up with title following execution or foreclosure of the lien.

"Although the law of salvage grants the salvor a right to possession of the property, the salvage of a vessel or goods at sea, even when the goods have been abandoned, does not divest the original owner of title or grant ownership rights to the salvor"

See, e.g., The Akaba v. Burg, 54 F. 197, 200 (4th Cir.1893) (“When articles are lost at sea the title of the owner in them remains”); see also Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659, 670-71 (5th Cir.2000) (explaining that the owner of the salvaged goods “does not lose title even though the property may become the subject of salvage services,” because, through the lien, the salvor obtains only a “right of possession” in the property and not “ownership or title to the salved property”) (quoting Benedict on Admiralty § 150); Treasure Salvors, 640 F.2d at 567 (“Although the law of salvage grants the salvor a right to possession of the property, the salvage of a vessel or goods at sea, even when the goods have been abandoned, does not divest the original owner of title or grant ownership rights to the salvor”); Continental Ins. Co. v. The Clayton Hardtop Skiff, 367 F.2d 230, 236 (3d Cir.1966) (“The salvor has the right to salvage but he does not achieve ownership of the vessel by salving it”); Chance, 606 F.Supp. at 804 (stating that “even though a vessel is abandoned without the hope of recovery or return, the title of the vessel remains in her owner” and “[t]he salvor of property has a right to an award or a lien against the property”), aff'd 775 F.2d 302 (11th Cir.1985); Hener v. United States, 525 F.Supp. 350, 357 (S.D.N.Y.1981) (explaining that salvage law grants the salvor “only a superior right of possession, and not title, until a court has passed on title and the salvage fee”) (citing The Akaba, 54 F. 197 (4th Cir.1893)); The Port Hunter, 6 F.Supp. 1009, 1011 (D.Mass.1934) (stating the salvors have a claim “paramount to all others” and the control to enforce the claim, “[b]ut ‘their interest in the goods did not amount to ownership.... Th[e] right is merely a lien, a right to retain the goods till the salvage be paid’ ”) (quoting Whitwell v. Wells, 41 Mass. 25, 24 Pick (Mass.) 25, 30 (1834)); The Carl Schurz, 5 F. Cas. 84, 86 (W.D.Tenn.1879) (No. 2414) (stating that the salvor “is, to all intents and purposes, a joint owner” of the property along with the original owner); The Amethyst, 1 F. Cas. at 763 (“The finder of property, left derelict at sea, does not acquire the dominion or the absolute property in what is found. He acquires the right of possession only, with a title to a reasonable reward for his services”).

"When articles are lost at sea the title of the owner in them remains"


"The salvor has the right to salvage but he does not achieve ownership of the vessel by salving it"


stating that "even though a vessel is abandoned without the hope of recovery or return, the title of the vessel remains in her owner" and "[t]he salvor of property has a right to an award or a lien against the property"


stating that the salvor "is, to all intents and purposes, a joint owner" of the property along with the original owner


"The finder of property, left derelict at sea, does not acquire the dominion or the absolute property in what is found. He acquires the right of possession only, with a title to a reasonable reward for his services"


Context: So viewed, the trial court's order barring Pinot's testimony in its entirety went to the heart of the contested issue. That testimony was the linchpin of the Mayor's claim that his actions were objectively reasonable; it would have corroborated the Mayor's version of why he did what he did. Consequently, its exclusion was plainly prejudicial.

See Cavin, 39 F.3d at 1309 (finding that the exclusion of expert testimony regarding the considerations that face an attorney whose client is using his services to perpetrate fraud was reversible error as it “prevent[ed] the lawyer from effectively presenting his defense”); cf. Blake, 329 F.3d at 49 (finding prejudicial error when the trial court withheld evidence from the jury on matters that were vital to the case).

finding that the exclusion of expert testimony regarding the considerations that face an attorney whose client is using his services to perpetrate fraud was reversible error as it "prevent[ed] the lawyer from effectively presenting his defense"


Context: We review a circuit court's determination that evidence offered pursuant to Rule 404(b) is clear and convincing under the "any evidence" standard.

"Bad act evidence that is not subject to a conviction must be shown by clear and convincing evidence and is reviewed under an 'any evidence' standard on appeal." (citing Wilson, 345 S.C. at 5-6, 545 S.E.2d at 829

State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001) (reversing the court of appeals for not applying the any evidence standard in reviewing a circuit court’s determination that Rule 404(b) evidence was clear and convincing); See also State v. Wallace, 384 S.C. 428, 432 n. 2, 683 S.E.2d 275, 277 n. 2 (2009) (“Bad act evidence that is not subject to a conviction must be shown by clear and convincing evidence and is reviewed under an ‘any evidence’ standard on appeal.” (citing Wilson, 345 S.C. at 5-6, 545 S.E.2d at 829)). Because there is evidence to support the judge’s ruling that the evidence was clear and convincing, we must affirm the trial court’s ruling that the State satisfied the first element.

reversing the court of appeals for not applying the any evidence standard in reviewing a circuit court's determination that Rule 404(b) evidence was clear and convincing