Context: The first argument is quickly disposed of. First, criminal facilitation in Tennessee requires the government to show that the underlying crime actually occurred.

hold-ing that "there is no offense of facilitation apart from the specific felony committed by the acts of facilitation"

See Parker, 932 S.W.2d at 951 (holding that, for facilitation of a felony, “the state must prove the commission of a specified felony and the assistance the accused gave to the person committing the specified felony”)(fodtnote omitted); see also State v. Virges, No. 02C01-9206-CR-00124, 1994 WL 51420, at *2 (Tenn.Cr.App.1994)(hold-ing that “there is no offense of facilitation apart from the specific felony committed by the acts of facilitation”). The specific felony therefore constitutes “an element” that can be examined by the court.

holding that, for facilitation of a felony, "the state must prove the commission of a specified felony and the assistance the accused gave to the person committing the specified felony"


Context: We agree with Turnage that the postconviction court's formulation of the second Larrison prong was erroneous insofar as it seemed to focus its inquiry on whether there was sufficient evidence to convict Turnage even without Quantez's testimony. Under the second Larrison prong, the court is to ask whether the petitioner has demonstrated "that without the [recanting witness's] testimony, the jury might have reached a different conclusion."

affirming the postconviction court's holding that second prong not met because "even without [the recanting witness's] testimony, the strength of the other evidence presented at trial was such that the jury would not likely have reached a different conclusion"

Williams, 692 N.W.2d at 896; see also Hooper, 680 N.W.2d at 96 (affirming the postconviction court’s holding that second prong not met because “even without [the recanting witness’s] testimony, the strength of the other evidence presented at trial was such that the jury would not likely have reached a different conclusion”); cf. Opsahl II, 677 N.W.2d at 424 (holding that second prong was met because of the seven witnesses who testified for the state in a largely circumstantial case, the testimony of five of them was either formally recanted or otherwise called into doubt in postconviction proceedings).


Context: Fourth, Fulwood is entitled to qualified immunity for Redmond's allegation of bias arising from the nature of his crime because there is no clearly established right for parole-eligible prisoners to be treated equally in the parole process regardless of the nature or seriousness of their crimes. Indeed, Parole Commissioners are expected to grant parole only when there is a "reasonable probability" that (i) the prisoner "will live and remain at liberty without violating the law," (ii) "his or her release is not incompatible with the welfare of society," and (iii) "he or she has served the minimum sentence imposed or the prescribed portion of his or her sentence[.]"

"The District of Columbia's parole regime * * * is entirely discretionary[.]"

See McRae v. Hyman, 667 A.2d 1356, 1357 (D.C. 1995) (“The District’s parole scheme confers discretion to grant or deny parole[.]”); see also Gooding v. Marberry, 341 Fed.Appx. 173, 174 (7th Cir. 2009) (“The District of Columbia’s parole regime * * * is entirely discretionary[.]”).

"The District's parole scheme confers discretion to grant or deny parole[.]"


Context: Nevertheless, plaintiffs claimed inability to work must be substantiated by objective medical evidence. Jackson v. New York City Trans.

no 90/180 showing where "[pjlaintiff did not submit any medical evidence that she [wa]s unable to conduct ordinary activities or must restrict her physical activities in any way."

Auth., 273 A.D.2d 200, 708 N.Y.S.2d 469, 470 (2000) (“[Pjlaintiffs self-serving affidavit stating that she was unable to return to work ... without a physician’s affidavit substantiating the existence of a medically determined injury which caused the alleged limitation of her activities [i]s insufficient” to make out a 90/180 claim); see also Tenzen, 2011 WL 6034462 at *8 (no 90/180 showing where “[pjlaintiff did not submit any medical evidence that she [wa]s unable to conduct ordinary activities or must restrict her physical activities in any way.”).

"[Pjlaintiffs self-serving affidavit stating that she was unable to return to work ... without a physician's affidavit substantiating the existence of a medically determined injury which caused the alleged limitation of her activities [i]s insufficient" to make out a 90/180 claim


Context: In general, "[v]alid contracts are property, whether the obligor be a private individual, a municipality, a state, or the United States."

holding that plaintiff was entitled to compensation for government's taking of option to renew a lease

Lynch v. United States, 292 U.S. 571, 579, 54 S.Ct. 840, 78 L.Ed. 1434 (1934); see U.S. Tr. Co. of N.Y. v. New Jersey, 431 U.S. 1, 19 n.16, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977) (“Contract rights are a form of property and as such may be taken for a public purpose provided that just compensation is paid.”); A&D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1152 (Fed. Cir. 2014); see also United States v. Petty Motor Co., 327 U.S. 372, 380-81, 66 S.Ct. 596, 90 L.Ed. 729 (1946) (holding that plaintiff was entitled to compensation for government’s taking of option to renew a lease). Mr. Piszel’s employment contract with Freddie Mac is no exception.

"Contract rights are a form of property and as such may be taken for a public purpose provided that just compensation is paid."


Context: We do not conclude that the State did not have the burden of proving the requisite culpability, and the judge charged the jury that it did. The difficulty in this case, unlike others, is that we deal facially with a ruling concerning the admissibility of evidence, not with the failure to give a diminished capacity instruction to the jury based on the evidence admitted.

erroneous instruction harmless because Dr. Rotgers' testimony which included consideration of impact of alcohol did not support finding of diminished capacity as a matter of law

See State v. Moore, supra, 122 N.J. at 434-37, 585 A.2d 864 (error in instructions requires reversal); State v. Pitts, 116 N.J. 580, 592, 562 A.2d 1320 (1989) (evidence insufficient to warrant a diminished capacity instruction); State v. Carroll, 242 N.J.Super. 549, 560-61, 577 A.2d 862, certif. denied, 127 N.J. 326, 604 A.2d 600 (1991) (erroneous instruction found to be harmless because of insufficient proofs to support the defense); see also State v. Watson, 261 N.J.Super. 169, 178-181, 618 A.2d 367 (App.Div.1992) (erroneous instruction harmless because Dr. Rotgers’ testimony which included consideration of impact of alcohol did not support finding of diminished capacity as a matter of law).


Context: On appeal, San Martin has not made these arguments, and therefore has waived them.

See La Grasta v. First Union Sec., 358 F.3d 840, 847 n. 4 (11th Cir.2004) (holding that a party's reference to having made an argument before the district court in the Statement of Facts is not an adequate substitute for elaborating on the merits of the argument on appeal); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989) (deeming an issue waived when its only mention in the party’s brief was in the Statement of the Case).

"Of the issues for which Isaacs received permission to appeal, he apparently chose to abandon all but eight for purposes of this appeal."

Isaacs v. Head, 300 F.3d 1232, 1238 (11th Cir.2002) (“Of the issues for which Isaacs received permission to appeal, he apparently chose to abandon all but eight for purposes of this appeal.”); Atkins v. Singletary, 965 F.2d 952, 955 n. 1 (11th Cir.1992) (holding that a habeas petitioner abandons the claims he does not address on appeal). The fact that he discusses the co-defendant's new affidavit in the Statement of Facts is not enough to preserve the issue for appeal.


deeming an issue waived when its only mention in the party's brief was in the Statement of the Case


holding that a habeas petitioner abandons the claims he does not address on appeal


Context: The court generally finds this bifurcation plan appropriate, and concludes that the superiority requirement is met. It notes, however, that plaintiffs have not articulated a workable trial plan for the classes they now propose. The court therefore directs plaintiffs to submit a trial plan that explains in detail (1) the subjects that they propose be addressed in separate phases of the trial; (2) the specific ways in which differences among available remedies will be addressed in special verdict forms during the liability phase of the trial; and (3) the specific mechanisms they suggest for handling the damages phase of the trial.

"[The] court cannot rely merely on assurances of counsel that any problems with predominance or superiority can be overcome"

See Gartin v. S & M NuTec LLC, 245 F.R.D. 429, 441 (C.D.Cal.2007) (“Neither Plaintiff nor her counsel has provided any suggestions — much less a plan — to this Court regarding managing the proposed class action”); see also Zinser, 253 F.3d at 1189 (“[The] court cannot rely merely on assurances of counsel that any problems with predominance or superiority can be overcome”).

"Neither Plaintiff nor her counsel has provided any suggestions -- much less a plan -- to this Court regarding managing the proposed class action"


Context: In Gil, the district court permitted the Government to offer expert testimony that drug traffickers often employ counter-surveillance driving techniques, register cars in others' names, deliver narcotics and cash in public parking lots, and frequently use pagers and public telephones.

allowing expert testimony regarding the use of apartments as "stash pads" for drugs and money

Id. at 1421-22. Noting a long line of cases allowing modus operandi testimony, we held that the admission of this testimony was not an abuse of discretion. Id. at 1422; see also United States v. Espinosa, 827 F.2d 604, 611-12 (9th Cir.1987) (allowing expert testimony regarding the use of apartments as “stash pads” for drugs and money); United States v. Patterson, 819 F.2d 1495, 1507 (9th Cir.1987) (allowing expert testimony on how criminal narcotics conspiracies operate); United States v. Maher, 645 F.2d 780, 783 (9th Cir.1981) (per curiam) (permitting expert testimony that defendant’s actions were consistent with the modus operandi of persons transporting drugs and engaging in counter-surveillance); cf. United States v. Boykin, 986 F.2d 270, 275 (8th Cir.1993) (allowing testimony that “the type of firearms found in [the defendant’s] home, their location, and the fact that they were loaded was significant to their usefulness and availability for use in connection with a drug business”).

allowing testimony that "the type of firearms found in [the defendant's] home, their location, and the fact that they were loaded was significant to their usefulness and availability for use in connection with a drug business"


permitting expert testimony that defendant's actions were consistent with the modus operandi of persons transporting drugs and engaging in counter-surveillance


Context: Second, Koon's opinion is not sufficiently tied to the facts of this case, because he has offered no basis for his opinion that the studies relied upon are sufficiently similar to the households connected to Burlington's waste-water system to merit comparison. Therefore, the Court finds that Koon's testimony is not sufficiently reliable to withstand a motion for summary judgment.

Summary judgment should be granted where expert opinion suggests merely a possibility, as opposed to a probability, "precisely to guard against raw speculation by the fact-finder."

See Sakaria, 8 F.3d at 172-73 (Summary judgment should be granted where expert opinion suggests merely a possibility, as opposed to a probability, “precisely to guard against raw speculation by the fact-finder.”); see also Daubert, — U.S. at -, 113 S.Ct. at 2795 (expert knowledge must be more than subjective belief or unsupported speculation).


Context: We agree with the trial court that the State derives no unfair advantage nor imposes any unfair detriment on the petitioners by challenging Willey's status as a professional gambler, and thus his standing to contest the constitutionality of the Gambling Winnings Tax as applied to professional gamblers. Given that the interlocutory transfer request was denied by this court, the petitioners cannot show any particular unfair advantage to the State or unfair detriment to themselves in the case before the trial court that resulted from the State challenging Willey's status as a professional gambler, whether or not such a position was inconsistent with the ITS.

holding that father failed to establish that any unfairness resulted from mother's allegedly inconsistent positions in seeking to modify child support pursuant to statutory right

See In the Matter of Carr & Edmunds, 156 N.H. 498, 502-03 (2007) (holding that father failed to establish that any unfairness resulted from mother’s allegedly inconsistent positions in seeking to modify child support pursuant to statutory right); cf. Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 849 (2005) (holding that defendant would derive an unfair advantage by taking a factual position inconsistent with one taken in an earlier action in which defendant prevailed).


Context: Herring recommended Officer Berry's suspension, and Sgt. Kathleen Mickens recommended Officer Dao's suspension).

See Ercegovich, 154 F.3d at 352 (citing Mitchell, 964 F.2d at 583); cf. Shager v. Upjohn Co., 913 F.2d 398, 406 (7th Cir.1990) (supervisor providing information to ultimate decision-maker can effectively influence and control that person’s decision); but see McMillan v. Castro, 405 F.3d 405, 414 (6th Cir.2005) (the requirement that a plaintiff and his comparable must have dealt with the same supervisor to be similarly situated does not automatically apply in every case).

supervisor providing information to ultimate decision-maker can effectively influence and control that person's decision


Context: Moreover, we had a difficult time concluding that the reasons for the district court's variance in sentencing Davis, such as age and length of time between the commission of the crime and the sentencing hearing, were compelling enough to support an almost 100% variance. Thus, it is difficult to extract from Davis an idea of how compelling perfectly legitimate reasons must be for a 43% variance or how this court is to review the careful and reasoned decision of the district court.

"If the trial court appreciates that the guidelines are advisory, fairly considers the 3553(a

See United States v. Buchanan, 449 F.3d 731, 740-41 (6th Cir.2006) (Sutton, J., concurring) (“If the trial court appreciates that the guidelines are advisory, fairly considers the 3553(a) factors in announcing its sentence and adheres to the other procedural requirements of a reasonable sentence, that should suffice.”)- Furthermore, this court in United States v. Husein, 478 F.3d 318 (6th Cir.2007), upheld a variance as large as the one in Davis based on the individual circumstances of that case, highlighting the fact that the very nature of individualized sentencing makes it difficult for this court, reviewing a well-reasoned decision by a district court with day-to-day expertise in sentencing, to conclude that a sentence is unreasonable merely by looking at the extent of the variance.

See also United States v. Fuson, 215 Fed.Appx. 468 (6th Cir.2007) (affirming a sentence of probation where the Guidelines called for a sentence of 24 to 36 months in prison based on the specific facts of the case).


Context: While Plaintiffs substantive due process claim cannot survive, the ease with which PACC Codes and M.C.L. provisions can be conflated -- regardless by whom -- is "troubling and noteworthy."

Michigan Court of Appeals erred by finding defendant's judgment of sentence referred to an incorrect statutory provision because the original judgment "permissibly referred to the appropriate section of the PACC Code" instead of the relevant M.C.L. section

See People v. Kuchciak, 467 Mich. 873, 873, 651 N.W.2d 67 (2002) (Michigan Court of Appeals erred by finding defendant’s judgment of sentence referred to an incorrect statutory provision because the original judgment “permissibly referred to the appropriate section of the PACC Code” instead of the relevant M.C.L. section); People v. Bennett, 2012 WL 6604706, at *3 (Mich.Ct.App. Dec. 18, 2012) (remanding to amend the plaintiffs Judgment of Sentence because the PACC Code was entered into the M.C.L. citation box on the Judgment of Sentence); see also Lee Higgins, Prosecutors admit mistake during 2003 conviction of Matthew Freeman, court documents say, AnnArbor.com, March. 2, 2010, available at http://www. annarbor.com/news /mistakes-were-made-during-2003-conviction-of-sexoffenderprosecutors-admit-in-court-filing/ (detailing defendant’s motion to accurately reflect that he was convicted of Criminal Sexual Conduct in the Fourth Degree for having sexual relations with a minor be cause the prosecutor mistakenly referred to the PACC Code for force/coercion).

rejecting defendant's "claim[] that authorities may misconstrue his conviction" for resisting and obstructing a police officer with the more serious offense of taking a firearm from a police officer because the PACC Code for the former (750.479-B

But cf. People v. Stephens, 2004 WL 1335976, at *1 (Mich.Ct.App. June 15, 2004) (rejecting defendant’s “claim[] that authorities may misconstrue his conviction” for resisting and obstructing a police officer with the more serious offense of taking a firearm from a police officer because the PACC Code for the former (750.479-B) resembles the M.C.L. citation to the latter (M.C.L. § 750.479b), noting that “PACC codes are routinely used in pleadings, and the judgment of sentence identifies the charge as “MCL citation/PACC Code”).


remanding to amend the plaintiffs Judgment of Sentence because the PACC Code was entered into the M.C.L. citation box on the Judgment of Sentence


Context: Albrecht contends that it was error for the court to order summary judgment when the relevance of the April 6 letter was disputed. We disagree. If the only controversy was the legal sufficiency of the April 6 letter, the district court could properly grant summary judgment.

upholding a district court's grant of summary judgment which found that a memorandum did not constitute a legally binding contract for the sale of a business

See Kaylor v. Crown Zellerbach, Inc., 643 F.2d 1362, 1366 (9th Cir.1981) (Where the only controversy was the legal sufficiency of a letter, the district court was entitled to grant summary judgment as a matter of law that the letter was not a written contract.); see also Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 73 (2d Cir.1989) (upholding a district court’s grant of summary judgment which found that a memorandum did not constitute a legally binding contract for the sale of a business).


Context: Thus, he argues that Shannon went beyond the gratuitous undertakings described above. First, we note that this is not a case where a person tried to prevent an intoxicated driver from driving; indeed, it is a case where a person assisted the intoxicated in driving. Second, we note that others have held that gratuitous undertakings concerning drivers may result in liability to a party other than the one who injured the third party.

See Cowart v. Grimaldi, 46 Conn.Supp. 248, 746 A.2d 833 (Conn.Super.1997) (holding that a motion to strike was improper where defendant assisted a drunk minor in his negligence by driving the drunk minor to his car); see also, Claxton v. Hutton, 615 N.E.2d 471, 474 (Ind.Ct.App.1993) (holding that summary judgment was improper because there was a question of fact pertaining to whether a motorist's gratuitous signal to pass was negligent); Thelen v. Spilman, 251 Minn. 89, 86 N.W.2d 700 (1957) (holding that "[a] driver who, though under no legal duty to do so, voluntarily undertakes to signal a following driver that it is safe to pass is liable in damages for all reasonably foreseeable consequences if in giving the signal he does not exercise reasonable care for the safety of others"). Jerry's allegations and asserted facts show that Shannon went beyond the actions of the defendants in Hawn and related cases.


holding that "[a] driver who, though under no legal duty to do so, voluntarily undertakes to signal a following driver that it is safe to pass is liable in damages for all reasonably foreseeable consequences if in giving the signal he does not exercise reasonable care for the safety of others"


Context: Having considered the Guidelines sentencing range, see 18 U.S.C. SS 3553(a)(4), the Court now turns to the "other statutory concerns" it must consider under Booker. The Court may impose a sentence that is within the applicable statutory range yet outside the range suggested by the Guidelines, but it may do so only on the basis of one or more of the factors included in 18 U.S.C. SS 3553(a). Moreover, the Court is obligated to construe the factors in section 3553(a) in a manner that is consistent with other relevant statutory provisions, particularly those that define criminal offenses.

"The meaning of terms on the statute books ought to be determined ... on the basis of which meaning is (1

See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 508, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) (explaining that the task of construing the meaning of statutory terms begins with a consideration of “the extent to which the text of [the statute] answers the question before [the Court],” and where the text is ambiguous, the Court should “seek guidance from legislative history and from the [code’s] overall structure”); see also id. at 528, 109 S.Ct. 1981 (Scalia, J., concurring) (“The meaning of terms on the statute books ought to be determined ... on the basis of which meaning is (1) most in accord with context and ordinary usage ... and (2) most compatible with the surrounding body of law into which the provision must be integrated ....”).

explaining that the task of construing the meaning of statutory terms begins with a consideration of "the extent to which the text of [the statute] answers the question before [the Court]," and where the text is ambiguous, the Court should "seek guidance from legislative history and from the [code's] overall structure"


Context: Appellees' pleading, and the documentary support for the facts alleged therein, were part of the record and placed before the court the facts upon which appellees' motion for summary judgment was based. Accordingly, appellees were not required to submit an additional affidavit supporting their motion for summary judgment.

explaining that "facts alleged in a pleading are not, by that means alone, before the court as facts for summary judgment" where they represent "mere allegations"

See, e.g., Washington Homes, 281 Md. at 718-19, 382 A.2d 555 (holding that the facts as admitted through pleadings and documents placed before the court were sufficient to support a party’s summary judgment motion); Cf. Vanhook v. Merchants Mut. Ins. Co., 22 Md.App. 22, 27, 321 A.2d 540 (1974) (explaining that “facts alleged in a pleading are not, by that means alone, before the court as facts for summary judgment” where they represent “mere allegations”).

holding that the facts as admitted through pleadings and documents placed before the court were sufficient to support a party's summary judgment motion


Context: White also argues that the district court failed to make an explicit finding that the post-September 2005 transactions (that is, the uncharged conduct) constituted relevant conduct for the purposes of loss. We have said that the relevant-conduct determination should be expressly stated by the district court during the hearing. But we have also said that we will not reverse a sentence on this basis "where it is clear from the record that the district court considered and adopted the facts recited in the presentence report, as well as the government's reasoning concerning the significance of those facts in establishing the defendant's responsibility for uncharged conduct."

listing cases where we overlooked "a paucity of explicit findings by the sentencing judge" because there was "specific, objective evidence in the record" that such findings were warranted

United States v. Acosta, 85 F.3d 275, 280 (7th Cir.1996) (affirming a sentence where the district court’s relevant conduct finding was “implicit”); see also United States v. Locke, 643 F.3d 235, 244-45 (7th Cir.2011) (listing cases where we overlooked “a paucity of explicit findings by the sentencing judge” because there was “specific, objective evidence in the record” that such findings were warranted).

affirming a sentence where the district court's relevant conduct finding was "implicit"


Context: While the 92-year sentence was a significant upward variance from the recommendation in the PSR, the court specifically noted that the 18 U.S.C. SS 3553(a) factors merited an upward variance because Hebert had abused his position of trust and authority as a police officer to take Bloch's life. And this court as well as other courts have approved of similarly significant upward variances where appropriate.

See, e.g., United States v. Brantley, 537 F.3d 347, 348 (5th Cir.2008) (affirming a sentence of incarceration 253% higher than the top of the Guidelines range); United States v. Smith, 417 F.3d 483, 492-93 (5th Cir.2005) (affirming a sentence of incarceration nearly 300% higher than the top of the Guidelines range); see also United States v. Sebolt, 598 Fed.Appx. 159,161-62 (4th Cir.2015) (per curiam) (unpublished) (affirming an upward variance to life imprisonment following a conviction for advertising child pornography).


affirming a sentence of incarceration nearly 300% higher than the top of the Guidelines range


Context: Several other jurisdictions share the same view with the Third Circuit.

See, e.g., In re Marriage of Mahaffey, 564 N. E. 2d 1300, 1305 (Ill. App. Ct. 1990), ( holding that lottery winnings were presumptively marital property where it was undisputed that money used to purchase the winning lottery ticket came from earnings of either husband or wife, purchase of ticket occurred during their marriage, and the irrevocable right to receive lottery payments was established during marriage); Alston v. Alston, 85 Md. App. 176, 582 A.2d 574 (1990), (held that the husband lottery winnings, occurring prior to termination of marriage were marital property); Smith v. Smith, 557 N.Y.S. 2d 22 (N.Y. App. Div. 1990), (held that lottery winnings are marital property and should be divided equally in a divorce action when both spouses made equal contributions to the marriage even though the winning ticket was acquired solely by husbands' effort); Ullah v. Ullah, 55 N.Y.S. 2d 834, 835 (N.Y. App. Div. 1990), (held that a lottery jackpot won during marriage is marital property and that equal division is appropriate since the jackpot was won as a result of fortuitous circumstances and not the result of either spouse's toil or labor); Giedinghagen v. Giedinghagen, 712 S. W. 2d 711 (Mo. Ct. App. 1986) (held that marital property encompasses any property including lottery winnings, acquired up to the date of a decree of legal separation or dissolution); See also Dyer v. Dyer, 536 A.2d 453 (Pa. Super. Ct. 1988) (holding that the trial court had not abused its discretion in determining that a husband's lottery winnings obtained after a fourteen year separation but before divorce were his sole property because the winnings were not acquired during marriage and had no impact on the standard of living of the marital union.)


held that the husband lottery winnings, occurring prior to termination of marriage were marital property


held that lottery winnings are marital property and should be divided equally in a divorce action when both spouses made equal contributions to the marriage even though the winning ticket was acquired solely by husbands' effort


held that a lottery jackpot won during marriage is marital property and that equal division is appropriate since the jackpot was won as a result of fortuitous circumstances and not the result of either spouse's toil or labor


held that marital property encompasses any property including lottery winnings, acquired up to the date of a decree of legal separation or dissolution


Context: . Federal circuits that have considered scenarios in which there is a temporal break between invocation and subsequent initiation have uniformly held that there was no Edwards violation.

See McKinney v. Ludwick, 649 F.3d 484, 491 (6th Cir.2011) (holding that even if a detective’s statement — that the case might be prosecuted by the federal government and that Mr. McKinney could face the death penalty — made to Mr. McKinney post-invocation amounted to interrogation, McKinney’s decision the next morning to flag down the detective from his cell constituted initiation for purposes of Edwards), cert. denied, - U.S. -, 132 S.Ct. 1559, 182 L.Ed.2d 185 (2012); Savino v. Murray, 82 F.3d 593, 599-600 (4th Cir.1996) (stating that a "defendant who ends police-initiated interrogation by requesting counsel, then specifically calls for an officer with whom to talk about the incident in question, has reinitiated further conversation for Edwards purposes”); United States v. Velasquez, 885 F.2d 1076, 1085-86 (3d Cir.1989) (holding that following her invocation of counsel, Mrs. Velasquez’s request to police officer to get federal investigator because she wanted to speak with him, her subsequent question to the federal investigator ("What is going to happen”), initiated the conversation and satisfied first step in Bradshaw)', McCree v. Housewright, 689 F.2d 797, 802 (8th Cir.1982) (holding that following his invocation of counsel when Mr. McCree subsequently knocked on his cell door and stated he had something to say, this constituted initiation under Edwards ); see also United States v. Comosona, 848 F.2d 1110, 1112-13 (10th Cir.1988) (holding that following his invocation of counsel, FBI Agent handed Mr. Comosona a business card and invited him to call collect if he wanted to talk about incident whereupon Mr. Comosona stated that he wanted to continue the interview constituted initiation by Mr. Comosona within the meaning of Edwards).

holding that even if a detective's statement -- that the case might be prosecuted by the federal government and that Mr. McKinney could face the death penalty -- made to Mr. McKinney post-invocation amounted to interrogation, McKinney's decision the next morning to flag down the detective from his cell constituted initiation for purposes of Edwards


stating that a "defendant who ends police-initiated interrogation by requesting counsel, then specifically calls for an officer with whom to talk about the incident in question, has reinitiated further conversation for Edwards purposes"


Context: The court also rejects defendants' argument on the merits because the court is unpersuaded that defendants are entitled to compel arbitration of the MCI business customers' claims on the same basis that they compelled arbitration of the MCI residential customers' claims. In the court's December 1, 2003, memorandum and order, it compelled arbitration of the MCI residential customers' claims on an equitable estoppel "intertwined claims" theory.

trial court's refusal to apply equitable estoppel is reviewed for abuse of discretion

Spaulding v. United Transp. Union, 279 F.3d 901, 911 (10th Cir.) (trial court’s refusal to apply equitable estoppel is reviewed for abuse of discretion), cert. denied, 537 U.S. 816, 123 S.Ct. 84, 154 L.Ed.2d 20 (2002); see, e.g., Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 528 (5th Cir.2000) (district court’s decision whether to utilize equitable estoppel principles to compel arbitration is reviewed for abuse of discretion). The court concluded that “notions of equity and fairness require the court to compel arbitration of plaintiffs’ antitrust claims against the long distance carriers other than their own under the terms of those plaintiffs’ arbitration clauses with their respective long distance carriers.”

district court's decision whether to utilize equitable estoppel principles to compel arbitration is reviewed for abuse of discretion


Context: First, she rejected the opinion because it was not supported by x-rays, MRI studies, CT scans, laboratory findings or "objective medical findings." However, plaintiffs principal alleged disabling condition was fibromyositis, or fibromyalgia. X-rays, MRI studies, CT scans and laboratory tests would not reveal the presence or severity of fibromyalgia, the symptoms of which are entirely subjective.

holding that the lack of "hard evidence" did not supply a good reason for rejecting a treating source physician's assessment where the disability was fibromyalgia

See also Dominguese v. Massanari, 172 F.Supp.2d 1087, 1100-01 (E.D.Wis.2001) (holding that the lack of “hard evidence” did not supply a good reason for rejecting a treating source physician’s assessment where the disability was fibromyalgia).

See Sar-chet, 78 F.3d at 307. Those symptoms include “ ‘pain all over,’ fatigue, disturbed sleep, stiffness, and — the only symptom that discriminates between it and other diseases of a rheumatic character — multiple tender spots, more precisely eighteen fixed locations on the body (and the rule of thumb is that the patient must have at least eleven of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.” Id. at 306. Given the nature of the condition, the lack of lack of x-rays, MRI studies, CT scans, laboratory findings or objective medical evidence was not probative of whether the record supported Dr. Misra’s opinion about plaintiffs limitations.


Context: In addition to providing reliable information on drug dealers in the area, the confidential informant had also previously participated in an uncontrolled buy that led to a guilty plea. This evidence sufficiently established that the confidential informant in this case was reliable.

"the record reveals no reason for regarding the informant as reliable. Officer Zirkelbach did not claim that a single conviction had ever resulted from one of this informant's 'tips' "

See Scott v. State, 883 N.E.2d 147 (reliability of informant and trustworthiness of informant’s information may be established where informant has given correct information in the past); cf. Johnson v. State, 659 N.E.2d at 119 (“the record reveals no reason for regarding the informant as reliable. Officer Zirkelbach did not claim that a single conviction had ever resulted from one of this informant’s ‘tips’ ”).

reliability of informant and trustworthiness of informant's information may be established where informant has given correct information in the past


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."

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"

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).

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


Context: As Plaintiffs point out, however, knowledge is not a requirement for a finding of liability in the underlying action. The conduct alleged by ACB could have been found merely negligent or reckless and yet still actionable.

Palmer v. Truck Ins. Exch., 78 Cal.Rptr.2d 389 (Cal.Ct.App.1998) (coverage for trademark infringement not barred as liability for trademark infringement need not be based on willful conduct); see also Elcom Technologies v. Hartford Ins. Co. of the Midwest, 991 F.Supp. 1294 (D.Utah 1997) (rejecting “knowledge of falsity exclusion argument where the underlying case involved false advertising claims”); Union Ins. Co. v. Knife Co., 897 F.Supp. 1213 (W.D.Ark.1995) (intent is not a required element of trademark infringement thus liability can be found even where the infringement was innocent rather than willful).

rejecting "knowledge of falsity exclusion argument where the underlying case involved false advertising claims"


intent is not a required element of trademark infringement thus liability can be found even where the infringement was innocent rather than willful


Context: As an additional preliminary matter, we must determine whether the district court properly considered the additional exhibits submitted by Chase without converting the motion to one for summary judgment. Given that Lobaito knew about and relied on the contents of the additional documents submitted by Chase, such as his Form U5 termination notice and his amended FINRA statement of claim, the district court did not err in failing to convert the motion to dismiss into a motion for summary judgment, as the materials considered were incorporated by reference into the complaint or otherwise integral thereto.

noting that, where a complaint relies heavily upon the "terms and effect" of a document, the doc ument is rendered "integral" to the complaint

See Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir.2000) (noting that the complaint includes “any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference” and that documents “plaintiffs either possessed or knew about and upon which they relied in bringing the suit” may be incorporated); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.2002) (noting that, where a complaint relies heavily upon the “terms and effect” of a document, the doc ument is rendered “integral” to the complaint)(internal quotation marks omitted).

noting that the complaint includes "any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference" and that documents "plaintiffs either possessed or knew about and upon which they relied in bringing the suit" may be incorporated


Context: It is well established "that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." "The mere fact that public monies and government efficiency are related to the subject of a public employee's speech do not, by themselves, qualify that speech as being addressed to a matter of public concern."

finding that employee's speech concerning mismanagement is not protected speech

Barnes v. McDowell, 848 F.2d 725, 734 (6th Cir.1988) (finding that employee’s speech concerning mismanagement is not protected speech).

See also Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir.1989) (finding that letters to a supervisor complaining about police chiefs leadership are not protected speech).


Context: For this reason, the Illinois Supreme Court's decision was not contrary to Crane. The Illinois Supreme Court's reading of Crane is consistent with that of the majority of state courts that have considered Crane's effect on the requirements of their states' civil commitment acts.

jury instruction defining mental disorder must include the language "causes the individual to have serious difficult in controlling his behavior" to comport with Crane

But see In re Thomas, 74 S.W.3d 789, 792 (Mo.2002) (jury instruction defining mental disorder must include the language “causes the individual to have serious difficult in controlling his behavior” to comport with Crane); In re Detention of Barnes, 658 N.W.2d 98, 101 (Iowa 2003) (Crane requires a jury instruction specifying serious difficulty in controlling behavior); In re Commitment of W.Z., 173 N.J. 109, 133-34, 801 A.2d 205, 219 (2002) (the state must specifically prove “by clear and convincing evidence that the individual has serious difficulty his or her harmful sexual behavior”); see also Peter Pfaffenroth, The Need for Coherence: States’ Civil Commitment of Sex Offenders in the Wake of Kansas v. Crane, 55 Stan. L.Rev. 2229, 2248 (2003) (arguing that Crane demands a separate lack of control finding); Kenneth W. Gaines, Instruct the Jury: Crane’s “Serious Difficulty” Requirement and Due Process, 56 S.C. L.Rev. 291, 300-01 (2004) (same).

separate finding regarding the individual's serious difficulty in controlling behavior is not necessary for civil commitment

See In re Commitment of Laxton, 254 Wis.2d 185, 201-02, 647 N.W.2d 784, 793 (2002) (separate finding regarding the individual’s serious difficulty in controlling behavior is not necessary for civil commitment); Florida v. White, 891 So.2d 502, 509 (Fl.2004) (“Crane does not impose [an element] required for civil commitment or render the Florida standard jury instructions inadequate”); People v. Williams, 31 Cal.4th 757, 774-75, 3 Cal.Rptr.3d 684, 74 P.3d 779, 790 (2003) (Crane “does not compel us to hold that further lack-of-control instructions or findings are necessary to support a commitment under the SVPA”); In re Commitment of Almaguer, 117 S.W.3d 500, 504 (Tex.App.2003) (the Crane majority made no mention of the need for a new instruction or even additional jury findings); In re Leon G., 204 Ariz. 15, 22 59 P.3d 779, 786 (2002) (“Crane’s statement that a state must prove ‘serious difficulty in controlling behavior’ does not re quire express statutory language”).


Crane requires a jury instruction specifying serious difficulty in controlling behavior


the state must specifically prove "by clear and convincing evidence that the individual has serious difficulty his or her harmful sexual behavior"


"Crane does not impose [an element] required for civil commitment or render the Florida standard jury instructions inadequate"


Crane "does not compel us to hold that further lack-of-control instructions or findings are necessary to support a commitment under the SVPA"


the Crane majority made no mention of the need for a new instruction or even additional jury findings


"Crane's statement that a state must prove 'serious difficulty in controlling behavior' does not re quire express statutory language"


Context: In this regard, Plaintiff must identify the materials allegedly omitted from the record with sufficient specificity, as opposed to merely proffering broad categories of documents and data that are "likely" to exist as a result of other documents that are included in the administrative record.

finding that the plaintiff failed to overcome the presumption that the administrative record was complete where the plaintiff offered no more than eonelusory allegations that the administrative record lacked unspecified reports, notes of discussions, and other documents that "must have" existed in connection with the robust debate concerning the assumptions and analyses underlying the agency action

See Blue Ocean, 503 F.Supp.2d at 369 (finding that the plaintiff failed to overcome the presumption that the administrative record was complete where the plaintiff offered no more than eonelusory allegations that the administrative record lacked unspecified reports, notes of discussions, and other documents that “must have” existed in connection with the robust debate concerning the assumptions and analyses underlying the agency action); see also Franks, 751 F.Supp.2d at 73-74 (finding that the plaintiffs failed to overcome the strong presumption of regularity to which the agency was entitled in compiling its record where the plaintiffs had “not offered nonspeculative grounds for their belief that the requested documents exist, much less that the [agency] considered them”).

finding that the plaintiffs failed to overcome the strong presumption of regularity to which the agency was entitled in compiling its record where the plaintiffs had "not offered nonspeculative grounds for their belief that the requested documents exist, much less that the [agency] considered them"


Context: In the wake of Vonn, we have indicated that a contention like the one at issue here--that the district court impermissibly participated in plea negotiations--is not structural error, but rather is subject to plain error review. Other courts have reached the same conclusion.

finding that district court's impermissible participation in plea negotiations required plain error analysis in light of Vonn

United States v. Ebel, 299 F.3d 187 (3d Cir.2002) (finding that district court’s impermissible participation in plea negotiations required plain error analysis in light of Vonn); United States v. Diaz, 138 F.3d 1359, 1362-63 (11th Cir.1998) (refusing to reverse conviction despite judge’s participation in negotiations because defendant could not show prejudice); see also United States v. Miles, 10 F.3d 1135, 1140-41 (5th Cir.1993) (applying harmless error review to claim that district court participated in plea negotiations).


refusing to reverse conviction despite judge's participation in negotiations because defendant could not show prejudice


Context: As noted above, the indictment charges the defendant with each of the elements of a mail fraud offense. Accordingly, I find that counts 1-3 properly charge a mail fraud offense, even if the defendant could not be properly charged with committing larceny under New York State law.

See Badders v. United States, 240 U.S. 391, 393, 36 S.Ct. 367, 367-68, 60 L.Ed. 706 (1916) (“Whatever the limits to its power, Congress may forbid putting letters into the post office when such acts are done in furtherance of a scheme that it regards as contrary to public policy, whether it can forbid the scheme or not.”); see also United States v. Bryan, 58 F.3d 933, 940-41 (4th Cir.1995) (suggesting that the mail fraud statute contains no state law predicate violation requirement).

"Whatever the limits to its power, Congress may forbid putting letters into the post office when such acts are done in furtherance of a scheme that it regards as contrary to public policy, whether it can forbid the scheme or not."


Context: While the court need not grant preAward interest pursuant to statute, if this action is of "an equitable nature" the court has discretion to award interest -- and to fix the rate and date from which it will be computed. C.P.L.R. SS 5001(a). Here, the Arbitration Award fixed the fair market value of Finger Lakes' distribution rights. An award of fair market value is an equitable determination.

"[T]he legally significant fact is the absence of a provision in the rules [for fee dispute resolution system] prohibiting, rather than the absence of one authorizing, the award of preaward interest."

See generally Mathias v. Jacobs, 238 F.Supp.2d 556, 576 (S.D.N.Y.2002) (describing “fair market value” under New York law as “fair, economic, just, and equitable value” (quoting In re Board of Water Supply, 277 N.Y. 452, 459, 14 N.E.2d 789, 792 (1938))); see also Garal, 193 Misc.2d at 646, 751 N.Y.S.2d 679 (Section 55-c “is designed to provide a more equitable framework for the business dealings between beer brewers and importers and their wholesalers.” (citing the governor’s bill jacket to the 1996 Amendment)); cf. Levin & Glasser, 70 A.D.3d at 445, 896 N.Y.S.2d 311 (“[T]he legally significant fact is the absence of a provision in the rules [for fee dispute resolution system] prohibiting, rather than the absence of one authorizing, the award of preaward interest.”).

Section 55-c "is designed to provide a more equitable framework for the business dealings between beer brewers and importers and their wholesalers." (citing the governor's bill jacket to the 1996 Amendment


Context: . For example, there are only two reported decisions in the Fifth Circuit specifically addressing the issue of bail in a foreign extradition case.

rejecting appellant's request for an independent circuit court order admitting him to bail for failure to provide "special reasons" warranting "disturbing the lower court's order"

See Russell, 805 F.2d at 1215 (briefly discussing the special circumstances test and rejecting that special circumstances justified granting bail in the case); see also Jimenez, 314 F.2d at 652-653 (rejecting appellant’s request for an independent circuit court order admitting him to bail for failure to provide "special reasons” warranting "disturbing the lower court’s order”).


Context: . I note that this and other circuits have found "persecution" to be an ambiguous term in other asylum cases.

finding that the INA does not "unambiguously explain[] what the word 'persecution' means" in the economic context

See, e.g., Mirzoyan v. Gonzales, 457 F.3d 217, 220 (2d Cir.2006) (per curiam) (finding that the INA does not “unambiguously explain[] what the word 'persecution' means” in the economic context); Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir.2004) (per curiam) ("The BIA is entitled to deference in interpreting ambiguous statutory terms such as 'persecution.' "); cf. Singh v. INS, 134 F.3d 962, 967 (9th Cir.1998) (noting that the INA "does not define ‘persecution’ or specify what acts constitute persecution”).

noting that the INA "does not define 'persecution' or specify what acts constitute persecution"


"The BIA is entitled to deference in interpreting ambiguous statutory terms such as 'persecution.' "


Context: Indeed, the Complaint itself acknowledges that the videotape is not essential to the litigation of this matter because the events of July 27, 2003, may be recreated through witness testimony. While the destruction of the tape may make it more difficult or costly for Brown to try this case, and may arguably amount to a discovery violation, there is nothing in the Complaint to suggest that the defendants conduct rendered Brown's access to the courts ineffective or meaningless. Brown has therefore failed to allege a violation of her constitutional right to access to the courts.

holding that the plaintiffs failed to state a claim for violation of the right to access to the courts based on allegations that the defendants confiscated their litigation materials, absent any allegation that such materials were critical to pursuing the plaintiffs' underlying claims

See, e.g., Monroe v. Beard, 536 F.3d 198, 206 (3d Cir. 2008) (holding that the plaintiffs failed to state a claim for violation of the right to access to the courts based on allegations that the defendants confiscated their litigation materials, absent any allegation that such materials were critical to pursuing the plaintiffs’ underlying claims); see also Foster v. City of Lake Jackson, 28 F.3d 425, 430 (5th Cir. 1994) (explaining that the right to access to the courts does not encompass “the right to proceed free of discovery abuses after filing”).

explaining that the right to access to the courts does not encompass "the right to proceed free of discovery abuses after filing"


Context: As might be expected in an area of the law in which so much depends on the factual scenario of the particular case, the holdings of the Kansas cases that address causation are not clearly dispositive of the issue. However, we find that those cases whose facts most closely approximate those of the instant case support the conclusion that the district court improperly granted summary judgment.

upholding judgment for the plaintiff who was injured in collision with horse on road, finding that trespasser's opening of gate was not intervening cause in light of defendant's failure to lock gate and defendant's knowledge that horses had previously escaped and that trespassers often entered property

See Steele, 327 P.2d at 1065 (holding that demurrer improperly granted because dropping bottle of flammable liquid was reasonably probable such that it was not an intervening cause in action against bottle manufacturer); Rowell, 176 P.2d at 597 (holding that demurrer on grounds of intervening act was inappropriate where stadium owner reasonably should have anticipated that glass bottles distributed at sporting event would be pushed or thrown and injure patrons); see also Cooper, 508 P.2d at 950-51 (upholding judgment for the plaintiff who was injured in collision with horse on road, finding that trespasser’s opening of gate was not intervening cause in light of defendant’s failure to lock gate and defendant’s knowledge that horses had previously escaped and that trespassers often entered property); Breising, 477 P.2d at 987 (implying that car repair shop may have been liable to owner of vehicle that was left with keys in ignition and was subsequently stolen, but upholding summary judgment against individual who was injured in an accident with thief).


implying that car repair shop may have been liable to owner of vehicle that was left with keys in ignition and was subsequently stolen, but upholding summary judgment against individual who was injured in an accident with thief


holding that demurrer on grounds of intervening act was inappropriate where stadium owner reasonably should have anticipated that glass bottles distributed at sporting event would be pushed or thrown and injure patrons


Context: In Hidalgo, the First Circuit assumed for purposes of its decision that an age-discrimination plaintiff had raised a triable issue as to whether the employer's explanation was incorrect, but nevertheless concluded that because the plaintiff had "offered no evidence that reasonably could be construed to indicate that [the employer] intended to discriminate against him because of his age," it was appropriate to grant summary judgment for the defendant. That assumption we think would be inconsistent with Hicks, which makes clear that "no additional proof of discrimination is required" as a matter of course once a plaintiff has shown that a jury could reject the employer's proffered explanation.

saying that evidence showing the employer's explanation to be false, standing alone, will "ordinarily" permit an inference of discrimination

Hicks, 509 U.S. at 511, 11S S.Ct. 2742; see also Rothmeier, 85 F.3d at 1333-35 (reading Hicks to reject an approach under which a showing that the defendant’s' proffered explanation is false is presumptively insufficient to show discrimination); Anderson, 13 F.3d at 1123 (same); cf. Rhodes, 75 F.3d at 993 (saying that evidence showing the employer’s explanation to be false, standing alone, will “ordinarily” permit an inference of discrimination). Our reading of Hicks also accords with the Supreme Court’s rule, set forth in United States Postal Serv. v. Aikens, 460 U.S. 711, 714 n. 3, 717, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), that it is improper to require plaintiffs to produce direct evidence of discriminatory intent in order to prevail at trial.

reading Hicks to reject an approach under which a showing that the defendant's' proffered explanation is false is presumptively insufficient to show discrimination


Context: While defense counsel promised alibi evidence during his opening statement, his failure to introduce the wives' testimony does not, in and of itself, constitute constitutionally deficient performance.

See Harrison v. Motley, 478 F.3d 750, 758-59 (6th Cir.2007) (holding the failure to call alibi witnesses promised during opening statement was not ineffective assistance of counsel); see also Williams v. Bowersox, 340 F.3d 667, 671-72 (8th Cir.2003) (“[Flailing to present witnesses promised in an opening is not always an error of a constitutional dimension.”); Schlager v. Washington, 113 F.3d 763, 768-70 (7th Cir.1997) (failure to call witness promised during opening statement not ineffective assistance of counsel). Indeed, if such were the rule, it would encourage counsel to perpetuate mistakes made during opening statements.

"[Flailing to present witnesses promised in an opening is not always an error of a constitutional dimension."


failure to call witness promised during opening statement not ineffective assistance of counsel


Context: As the district court explained, the United States is immune from suit for mone tary relief unless a statute waives immunity.

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."

FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”); Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) (the basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress). The United States has not given its consent to be sued for alleged violations of the Eighth and Fourteenth Amendments committed against state prisoners.

The United States "has not waived its sovereign immunity for constitutional torts as such."

See Martinez v. Winner, 771 F.2d 424, 442 (10th Cir.1985) (The United States “has not waived its sovereign immunity for constitutional torts as such.”). Thus, the district court rightly dismissed Salary’s claim for damages against the United States according to 28 U.S.C. § 1915A(b), which requires a court to dismiss a prisoner complaint that seeks monetary damages from a defendant who is immune from that relief.


the basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress


Context: That admiralty jurisdiction exists does not automatically assure that the applicable law will be federal, however. Unlike other areas of admiralty law, Congress has not chosen to legislate with regard to marine insurance.

"The application of state law in [Wilburn Boat ] was justified by the Court on the basis of a lack of any provision of maritime law governing the matter there presented."

See id. at 314, 75 S.Ct. at 370; Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 205, 98 L.Ed. 143 (1953) (where federal law provides a defense in an admiralty suit, it controls over state law); see also Kossick v. United Fruit Co., 365 U.S. 731, 742, 81 S.Ct. 886, 894, 6 L.Ed.2d 56 (1961) (“The application of state law in [Wilburn Boat ] was justified by the Court on the basis of a lack of any provision of maritime law governing the matter there presented.”).


Context: Many courts, including the Supreme Court, permit alleged state court violations, ordinarily required to be raised on direct appeal to the state courts to be preserved for federal habeas review, to be admitted for such review through the "back door" in the form of a claimed denial of effective assistance of appellate counsel.

denying habeas relief on the basis that the claim that defense counsel failed to challenge elements listed in indictment was not raised on direct appeal and could not subsequently be admitted through the "back door" clothed as an ineffective assistance of counsel claim failed to meet Strickland requirements because of the novelty of issue

See also Chestaro v. United States, 17 F.Supp.2d 242, 244 (S.D.N.Y.1998) (denying habeas relief on the basis that the claim that defense counsel failed to challenge elements listed in indictment was not raised on direct appeal and could not subsequently be admitted through the “back door” clothed as an ineffective assistance of counsel claim failed to meet Strickland requirements because of the novelty of issue).

Kimmelman, supra (permitting Fourth Amendment issue to be evaluated on habe-as review as a Sixth Amendment claim based on appellate counsel’s failure to appeal trial court’s denial of motion to suppress); Holman v. Page, 95 F.3d 481, 482-83 (7th Cir.1996) (same); Bunkley v. Meachum, 68 F.3d 1518, 1522 (2d Cir.1995) (reviewing in the form of an ineffective assistance of appellate counsel claim asserted in habeas petition allegation that appellate counsel failed to raise on direct appeal to the state court that jury was improperly instructed on how to apply state law circumstantial evidence rule); Durrive v. United States, 4 F.3d 548, 550 (7th Cir.1993) (observing that in limited circumstances an alleged violation of Fed. R.Crim.P. 32 requiring defendant be provided with copy of presentence report may be subject to federal habeas review within an ineffective assistance of counsel claim).


observing that in limited circumstances an alleged violation of Fed. R.Crim.P. 32 requiring defendant be provided with copy of presentence report may be subject to federal habeas review within an ineffective assistance of counsel claim


Context: Defendants agree that plaintiff would have had a claim at common law against the individual defendants. Defendants state in their brief that, "At common law, plaintiff would have had a claim against the individual defendants in this case -- health care professionals working at OHSU." We agree and accept that concession.

"[I]f the duty is one which the officer owes both to the public and to a private individual, and the private individual is injuriously affected specially, and not as a member of the public, then for such violation the injured party may sue [the officer] for the wrong done."

See Smothers, 332 Or at 129 (“It is undisputed that, at the time of the American Revolution, the common law recognized a cause of action for negligence.”); cf. Antin v. Union High School Dist. No. 2, 130 Or 461, 478, 280 P 664 (1929) (“[I]f the duty is one which the officer owes both to the public and to a private individual, and the private individual is injuriously affected specially, and not as a member of the public, then for such violation the injured party may sue [the officer] for the wrong done.”); Mattson v. City of Astoria, 39 Or 577, 579, 65 P 1066 (1901) (citing authority for the proposition that it is settled law that public officers are liable to an individual who sustains special damage as a result of negligence in the ministerial performance of delegated public duties).

"It is undisputed that, at the time of the American Revolution, the common law recognized a cause of action for negligence."


Context: Confessions made after advisement and waiver of Miranda warnings are "likely voluntary."

"[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was 'compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare."

DeWeaver v. Runnels, 556 F.3d 995, 1003 (9th Cir.2009) (citing Missouri v. Seibert, 542 U.S. 600, 608-09, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (“[G]iving the warnings and getting a waiver has generally produced a virtual ticket of admissibility.”)); see also Berkemer v. McCarty, 468 U.S. 420, 433 n. 20,104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (“[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.”).

"[G]iving the warnings and getting a waiver has generally produced a virtual ticket of admissibility."


Context: Section 766.206(2) limits liability to "all attorney's fees ... incurred during the investigation and evaluation of the claim." Here the court has tacked on fees for litigating the issue of presuit noncompliance, as well as for litigating the amount of fees to be awarded. Under the plain text of the statute, however, the liability is only for the narrow purpose specified and therefore the amount awarded should have been limited to those incurred "during the investigation and evaluation."

See Kukral v. Mekras, 679 So.2d 278, 281 (Fla.1996) (“These provisions for sanctions focus on the presuit period during ‘the investigation and evaluation of the claim’ and apparently contemplate the imposition of sanctions for the expense and effort that one party may have unnecessarily caused the other to incur during that presuit period.”); see also State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla.1993) (holding that fees may be awarded for litigating amount of fees only where language of statute supports such conclusion).

"These provisions for sanctions focus on the presuit period during 'the investigation and evaluation of the claim' and apparently contemplate the imposition of sanctions for the expense and effort that one party may have unnecessarily caused the other to incur during that presuit period."


Context: The actual and punitive damages are based on the same conduct. We need not look at the state's standard for awarding punitive damages because the jury already found that Scarborough's, conduct in the underlying malicious prosecution claim, for which the punitive damages were also awarded, was willful and malicious.

See In re Miera, 926 F.2d at 745 (holding that punitive damages, which are based on the same underlying action justifying nondischarge-ability of compensatory damages, are likewise nondischargeable); see also Schoor, 139 B.R. at 468 (applying In re Miera and holding punitive damages nondischargeable where actual damages were nondis-chargeable without looking at specific jury instructions for punitive damages).


Context: SDCL 22 -- 1--2(53) defines victim as "any * natural person against whom the defendant in a criminal prosecution has committed or attempted to commit a crime[.]" (Emphasis added.) Under the facts of this case, Sully County is not a victim, entitled to restitution based upon this definition.

State v. Ryyth, 2001 S.D. 50, ¶ 10, 626 N.W.2d 290, 292 (holding county does not fit statutory definition of victim, under restitution statutes); see also State v. Sprecher, 2000 S.D. 17, ¶¶ 7-9, 606 N.W.2d 138, 139 (denying payment to county for, costs of abating public nuisance because county, under the facts of the case, was not a victim entitled to restitution); State v. Garnett, 488 N.W.2d 695, 698 (S.D.1992); State v. No Neck, 458 N.W.2d 364, 365 (S.D.1990).


Context: The language in the challenged indictment tracks the legislative language used in and cites directly to OCGA SS 16-6-5 (a). And, the crime charged in and of itself alerted Marshall to the fact that he was being accused of acting with the intent of engaging in illicit sexual conduct with a minor: Chapter 6 of Title 16 of the Official Code of Georgia Annotated is entitled, "Sexual Offenses," and OCGA SS 16-6-5 (a) proscribes the "solicitation of a minor to engage in sexual conduct or conduct which, by its nature, is a sexual offense against a minor." (Citation and punctuation omitted.)

in the context of child molestation, "the word ["indecent"] would alert a defendant that he or she was being charged with committing an unlawful act with a lustful intent against a child"

Cf. Hammock v. State, 201 Ga. App. 614, 616 (1) (b) (411 SE2d 743) (1991) (in the context of child molestation, “the word [“indecent”] would alert a defendant that he or she was being charged with committing an unlawful act with a lustful intent against a child”); Chapman v. State, 170 Ga. App. 779, 780 (1) (318 SE2d 213) (1984) (in the context of child molestation, defining “immoral or indecent acts” as “acts which offend against the public’s sense of propriety as well as to afford protection to a child’s body in those cases where the act or acts are more suggestive of sexually oriented misconduct than simply assaultive in nature”).

noting that OCGA SS 16-6-5, among other statutes located in Chapter 6, "were enacted as part of a general legislative scheme to protect children under the age of 16 from physical and psychological damage resulting from sexual exploitation"

See also State v. Vines, 226 Ga. App. 779, 780 (487 SE2d 521) (1997) (noting that OCGA § 16-6-5, among other statutes located in Chapter 6, “were enacted as part of a general legislative scheme to protect children under the age of 16 from physical and psychological damage resulting from sexual exploitation”), rev’d on other grounds, Vines v. State, 269 Ga. 438 (499 SE2d 630) (1998).


in the context of child molestation, defining "immoral or indecent acts" as "acts which offend against the public's sense of propriety as well as to afford protection to a child's body in those cases where the act or acts are more suggestive of sexually oriented misconduct than simply assaultive in nature"


Context: There is nothing to suggest in the treatment or amplification of "Go November" that the voter featured at the end is casting the dispositive vote, while "Swing Vote" revolves around the premise that Bud's vote will determine the outcome of the election. Therefore, though both works conclude with a single voter casting a ballot, the expression of that idea is very different.

"a copyright does not protect an idea, but only the expression of an idea"

See Williams, 84 F.3d at 590 (“even those scenes that appear similar in their abstract description prove to be quite dissimilar once examined in any detail”); see also Kregos v. Assoc. Press, 3 F.3d 656, 663 (2d Cir.1993) (“a copyright does not protect an idea, but only the expression of an idea”); Chase-Riboud v. Dreamworks, Inc., 987 F.Supp. 1222, 1232 (C.D.Cal.1997) (in denying plaintiffs motion for a preliminary injunction, court determined that story endings that both “link[ed] [protagonistas return to Africa with a voice traveling back across the Atlantic to a symbol of the Civil War” were most likely not substantially similar because “the expression of the[ ] ideas [wa]s different”).

"even those scenes that appear similar in their abstract description prove to be quite dissimilar once examined in any detail"


in denying plaintiffs motion for a preliminary injunction, court determined that story endings that both "link[ed] [protagonistas return to Africa with a voice traveling back across the Atlantic to a symbol of the Civil War" were most likely not substantially similar because "the expression of the[ ] ideas [wa]s different"


Context: Although citing the Frye general acceptance standard, our primary concern in Mack was with the unreliability of memories produced while under hypnosis. First, a novel scientific technique must be generally accepted in the relevant scientific community, and second, the particular evidence derived from that test must have a foundation that is scientifically reliable.

affirming the district court's admission of expert testimony based on DNA test results because the principles underlying forensic DNA testing are generally accepted, and the laboratory complied with the appropriate standards and controls, thus rendering the results legally reliable

See State v. Anderson, 379 N.W.2d 70, 79 (Minn.1985) (holding that graphology “is accorded a low measure of scientific reliability in predicting character or state of mind and is not generally accepted in the scientific fields of psychology and psychiatry”); see also State v. Jobe, 486 N.W.2d 407, 419-20 (Minn.1992) (affirming the district court’s admission of expert testimony based on DNA test results because the principles underlying forensic DNA testing are generally accepted, and the laboratory complied with the appropriate standards and controls, thus rendering the results legally reliable); State v. Moore, 458 N.W.2d 90, 97-98 (Minn.1990) (affirming the district court’s admission of expert testimony on blood spatter interpretation where the district court determined that the theory was generally accepted and the theory’s application was legally reliable).

holding that graphology "is accorded a low measure of scientific reliability in predicting character or state of mind and is not generally accepted in the scientific fields of psychology and psychiatry"


affirming the district court's admission of expert testimony on blood spatter interpretation where the district court determined that the theory was generally accepted and the theory's application was legally reliable


Context: Against this backdrop, we begin with Certified Question No. 1 and determine whether Conwed may seek payment from Union Carbide for compensation that may eventually be payable to employees who have settled workers' compensation claims subject to reopening if their conditions should worsen. Union Carbide has acknowledged that "[t]o the extent there are any cases where Conwed has paid claimants but not fully settled the existing injury," Conwed can recover future "payable" benefits for those workers if Conwed can provide sufficient evidence of the benefits it will have to pay. Based on our prior case law, we conclude that this is the correct result.

holding that employer's insurer who provided workers' compensation benefits to employee but did not consent to employee's settlement with third-party tortfeasor may "maintain an action for payments that become payable in the future"

See Aetna Life & Cas. v. Anderson, 310 N.W.2d 91, 95 (Minn.1981) (holding that employer’s insurer who provided workers’ compensation benefits to employee but did not consent to employee’s settlement with third-party tortfeasor may “maintain an action for payments that become payable in the future”); see also Wilken v. Int’l Harvester, 363 N.W.2d 763, 767-68 (Minn.1985) (holding that a trial court should calculate an employer’s contribution due for the third party’s future payments by using affidavits and other evidence to determine a lump sum amount and reduce the amount to its present value as of the date of the contribution judgment); Metro. Milk Co. v. Minneapolis St. Ry., 149 Minn. 181, 184, 183 N.W. 830, 831 (1921) (“The employer is not required to wait until all payments due to the employ[ee] or the dependent have been made and then sue at law.”). Thus, to the extent Certified Question No. 1 asks whether, under Minn.Stat. § 176.061, Conwed may recover for benefits it has paid or expects to pay following settlements for existing claims based on existing illnesses that may worsen, we answer it in the affirmative.

holding that a trial court should calculate an employer's contribution due for the third party's future payments by using affidavits and other evidence to determine a lump sum amount and reduce the amount to its present value as of the date of the contribution judgment


"The employer is not required to wait until all payments due to the employ[ee] or the dependent have been made and then sue at law."


Context: Under Georgia's civil RICO provision, defendants can only recover for injuries incurred as a result of predicate acts directed towards themselves, as opposed to predicate acts directed towards third parties.

Nicholson v. Windham, 257 Ga.App. 429, 430, 571 S.E.2d 466, 468 (2002) (upholding dismissal of RICO claim based on predicate acts that were not directed towards plaintiff).

holding that plaintiffs "must allege 'and can only recover to the extent that [they have] been injured ... by the conduct constituting the violation ' "

See also Waldschmidt v. Crosa, 177 Ga.App. 707, 709, 340 S.E.2d 664, 666 (1986) (holding that plaintiffs “must allege ‘and can only recover to the extent that [they have] been injured ... by the conduct constituting the violation ’ ”) (emphasis in original) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)).


Context: Likewise, we express no opinion on the seemingly novel question of whether a criminal prosecution, dismissed solely because of a time bar, is determined in a plaintiffs favor for purposes of the constitutional tort of malicious prosecution. The Restatement indicates it is a favorable determination for purposes of the common law tort, but no opinions have been found which so hold. Restatement (Second) of Torts SS 659(d) (1977) (proceedings terminate in plaintiffs favor where indictment quashed).

But see Lackner v. LaCroix, 25 Cal.3d 747, 159 Cal.Rptr. 693, 602 P.2d 393 (1979) (dismissal on basis of statute of limitations not favorable termination for defendant within context of a malicious prosecution claim).

See also Commonwealth v. Bestwick, 489 Pa. 603, 616, 414 A.2d 1373, 1379 (1980) (suggesting, under Pennsylvania criminal procedure, motion to quash proper vehicle for terminating untimely criminal prosecution).


Context: At trial, the Trustee sought to avoid the $9,000,000 transfer as a preferential transfer under 11 U.S.C. SS 547(b). (See Court's Order of September 23, 2011, at 22). "To succeed in a preference action, a trustee must show, inter alia, that the debtor was insolvent at the time of the contested transaction."

"As the alleged transfers occurred more than 90 days prior to the filing of [the debtor's] petition, there is no presumption of insolvency."

In re DAK Indus., Inc., 170 F.3d 1197, 1199 (9th Cir.1999) (italics in original). Given that the transfer occurred more than 90 days before Flashcom filed for bankruptcy, (see AF at ¶ 40) (transfer occurred on February 23, 2000); (see Court’s Order of September 23, 2011, at 22) (Flashcom filed for bankruptcy on December 8, 2000), there is no presumption of insolvency, and the Trustee had the burden of proving insolvency at trial. See 11 U.S.C. § 547(f) (“[T]he debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition.”); § 547(g) (“The trustee has the burden of proving the avoidability of a transfer under subsection (b) of this section[.]”); In re EECO Inc., 138 B.R. 260, 262-63 (Bankr.C.D.Cal.1992) (“As the alleged transfers occurred more than 90 days prior to the filing of [the debtor’s] petition, there is no presumption of insolvency.”). A finding of insolvency is reviewed for clear error.

"Findings of fact, such as the finding of insolvency, are reviewed for clear error."

See In re Kaypro, 218 F.3d 1070, 1073 (9th Cir.2000) (“Findings of fact, such as the finding of insolvency, are reviewed for clear error.”).


Context: Stokes's argument fails for two reasons. First, this court has previously stated that the maximum penalty for those who fall within the ACCA is life imprisonment.

stating that the ACCA "raises the penalty for possession of a firearm by a felon ... to a mandatory minimum sentence of 15 years and a maximum of life in prison without parole"

See United States v. Weems, 322 F.3d 18, 26 (1st Cir.2003) (stating that the maximum sentence under the ACCA is life imprisonment); see also Custis v. United States, 511 U.S. 485, 487, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (stating that the ACCA “raises the penalty for possession of a firearm by a felon ... to a mandatory minimum sentence of 15 years and a maximum of life in prison without parole”); United States v. Mack, 229 F.3d 226, 229 n. 4 (3d Cir.2000) (stating that the ACCA “specifies no maximum term of imprisonment [but] has been construed to authorize a life term”); United States v. Brame, 997 F.2d 1426, 1428 (11th Cir.1993) (same); United States v. Guerrero, 5 F.3d 868, 874 n. 12 (5th Cir.1993) (same); United States v. Wolak, 923 F.2d 1193, 1199 (6th Cir.1991) (same); United States v. Carey, 898 F.2d 642, 644 (8th Cir.1990) (same); United States v. Blannon, 836 F.2d 843, 845 (4th Cir.1988) (same).


stating that the ACCA "specifies no maximum term of imprisonment [but] has been construed to authorize a life term"


Context: The whole purpose of the apportionment formula is to identify in-state commerce and not, as the majority seems to suggest, to simply reduce the tax burden to a level that in all likelihood does not overstep constitutional bounds. Thus, the proper inquiry is whether the apportioned tax base fairly represents the in-state business activity of a taxpayer and not whether the actual dollar amount of the assessed tax adequately represents in-state activity irrespective of the constitutionality of the apportionment factor.

discriminatory character of the challenged provisions was demonstrated by the fact that they "foreclose tax-neutral decisions" about where to transact business

See Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 265, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984) (where tax has differential impact on in-state and out-of-state activities, the determination of constitutionality does not depend upon whether one focuses upon the benefited or the burdened); cf. Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 331, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977) (discriminatory character of the challenged provisions was demonstrated by the fact that they “foreclose tax-neutral decisions” about where to transact business).


Context: R.E.R. alleges he continues to suffer severe mental and emotional distress as a result of the minister's actions, which "imposed upon [him] the difficulties of dealing with spousal guilt, depression, unhappiness, and low self-esteem" and led to poor work performance, the termination of his employment, an unprofitable career change, and related medical expenses. Because these losses flow from the alienation of his former wife's affections, they generally are no longer recoverable because the legislature has outlawed heart balm actions.

finding a suit for intentional infliction of emotional distress was barred because the plaintiff basically sued the defendant for "wil-fully taking away her husband" and stating the legislature immunized that conduct from tort liability

See Destefano v. Grabrian, 763 P.2d 275, 278, 288 (Colo.1988) (finding claims for mental pain and suffering, based on theories of negligence and intentional infliction of emotional distress, “plainly set forth claims for alienation of affections and criminal conversation”); Gasper v. Lighthouse, Inc., 73 Md.App. 367, 533 A.2d 1358, 1360-61 (1987) (barring claims for breach of contract and fiduciary duty because the “basis of the action was the destruction of the marriage and the injuries allegedly arising from it”), cert. denied, 311 Md. 718, 537 A.2d 272 (1988); Nicholson v. Han, 12 Mich.App. 35, 162 N.W.2d 313, 317 (1968) (concluding the plaintiff could not maintain his action for breach of contract because the claimed damages, pain and suffering, demonstrated his reliance on a prohibited tort theory); Strock v. Pressnell, 38 Ohio St.3d 207, 527 N.E.2d 1235, 1242-43 (1988) (declining to consider an intentional infliction of emotional distress action, in which the plaintiff sought damages for “anguish, shock, nervousness, and depression,” because the abolition of claims for alienation of affections was intended to preclude these allegations); see also Wilson v. Still, 819 P.2d 714, 716 (Okla.1991) (finding a suit for intentional infliction of emotional distress was barred because the plaintiff basically sued the defendant for “wil-fully taking away her husband” and stating the legislature immunized that conduct from tort liability).

finding claims for mental pain and suffering, based on theories of negligence and intentional infliction of emotional distress, "plainly set forth claims for alienation of affections and criminal conversation"


But see Erickson v. Christenson, 99 Or.App. 104, 781 P.2d 383, 385-86 (1989) (holding a plaintiff could proceed on a claim alleging intentional infliction of emotional distress because the alleged losses were different from those for seduction, but also stating plaintiffs previously suing for seduction could recover for damage to character and reputation as well as for mental anguish and pecuniary losses), appeal dismissed, 311 Or. 266, 817 P.2d 758 (1991).


barring claims for breach of contract and fiduciary duty because the "basis of the action was the destruction of the marriage and the injuries allegedly arising from it"


concluding the plaintiff could not maintain his action for breach of contract because the claimed damages, pain and suffering, demonstrated his reliance on a prohibited tort theory


declining to consider an intentional infliction of emotional distress action, in which the plaintiff sought damages for "anguish, shock, nervousness, and depression," because the abolition of claims for alienation of affections was intended to preclude these allegations


Context: However, the trial court's determination that APD demonstrated by clear and convincing evidence that Drayton "is likely to physically injure others if allowed to remain at liberty" is based entirely upon the expert opinions, which relied heavily upon the unproven allegations from 1998 and 1999. Because the experts' determinations were based on faulty premises, we find the trial court's order was not based on competent substantial evidence.

See Kimbrough v. State, 852 So.2d 335, 336 (Fla. 5th DCA 2003) (noting the lack of conflicting evidence and finding an involuntary admission order was supported by competent substantial evidence because the experts did not rely on improperly admitted records in forming their opinions); see also In re Commitment of A.E.F., 377 N.J.Super. 473, 873 A.2d 604, 614 (2005) (“[Significant state action, such as [involuntary] commitment, cannot and should not be based on unproven allegations of misconduct.”). We also note that the experts’ observations dating back to 2003 do not provide competent substantial evidence supporting the order for Drayton’s involuntary admission.

"[Significant state action, such as [involuntary] commitment, cannot and should not be based on unproven allegations of misconduct."


Cf. In re Commitment of Reilly, 970 So.2d 453 (Fla. 2d DCA 2007) (concluding that a six-month-old report from a mental health expert was too stale to be relevant to an adjudication of incompetency). Because the trial court’s findings were not supported by competent substantial evidence, we reverse the order for Drayton’s involuntary commitment to APD and remand for further proceedings consistent with this opinion.


Context: Plaintiff misunderstands the special relationship exception to the economic loss doctrine. The underlying purpose of the special relationship exception is to define particular "circumstances in which a party has a duty of care to avoid imposing economic losses on third parties."

Mega RV Corp. v. HWH Corp., 225 Cal.App.4th 1318, 1340, 170 Cal.Rptr.3d 861 (2014), as modified on denial of reh’g (May 20, 2014) (holding that RV repair company which repaired RV for owner did not have a duty to manufacturer of hydraulic components); see also J’Aire Corp. v. Gregory, 24 Cal.3d 799, 157 Cal.Rptr. 407, 598 P.2d 60 (1979) (delineating the special relationship exception and holding that airport restaurant had special relationship with contractor who contracted with airport operator to renovate the airport, allowing restaurant to recover lost profits arising from construction delays caused by contractor); Biakanja v. Irving, 49 Cal.2d 647, 648-51, 320 P.2d 16 (1958) (holding that a decedent’s intended beneficiary had a special relationship with the notary public who had prepared a defective will).


holding that a decedent's intended beneficiary had a special relationship with the notary public who had prepared a defective will


Context: We disagree. Mr. Abernathy is correct that, under the law-of-the-case doctrine, courts ordinarily would refuse to reconsider arguments presented in a SS 2255 motion that were raised and adjudicated on direct appeal.

declining to reconsider an argument raised in a SS 2255 motion that was addressed on direct appeal

See Davis, 417 U.S. at 342, 94 S.Ct. 2298 (noting that the law-of-the-case doctrine typically precludes consideration of issues in a § 2255 proceeding that were previously decided on direct appeal); United States v. Irving, 665 F.3d 1184, 1192-93 (10th Cir.2011) (declining to reconsider an argument raised in a § 2255 motion that was addressed on direct appeal); United States v. LaHue, 261 F.3d 993, 1010-11 (10th Cir.2001) (“The law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” (quoting United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir.1998)) (internal quotation marks omitted)); see also United States v. Davis, 406 F.3d 505, 511 (8th Cir.2005) (declining to reconsider an argument raised in a § 2255 motion that was addressed on direct appeal); Dall v. United States, 957 F.2d 571, 572 (8th Cir.1992) (per curiam) (“[CJlaims which were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255.” (alteration in original) (quoting United States v. Shabazz, 657 F.2d 189, 190 (8th Cir.1981) (per curiam)) (internal quotation marks omitted)).

noting that the law-of-the-case doctrine typically precludes consideration of issues in a SS 2255 proceeding that were previously decided on direct appeal


Context: At trial, the jury found that the deputies engaged in malicious conduct with intent to harm, including using Tasers on sensitive body parts and on unconscious individuals. These findings support Plaintiffs Eighth Amendment claims.

See Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 999, 117 L.Ed.2d 156, 165 (1992) (holding that malicious or sadistic use of force with intent to harm violates the Eighth Amendment); see also Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 1084-1085, 89 L.Ed.2d 251, 261-62 (1986) (finding that, in the context of a prison disturbance, an Eighth Amendment violation turns on “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm”).

finding that, in the context of a prison disturbance, an Eighth Amendment violation turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm"


Context: Other courts have concluded that English-only notices put defendants on inquiry notice and place a burden on the defendants to have the notices interpreted to discern their meaning.

See Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir.1983), cert. denied, 466 U.S. 929, 104 S.Ct. 1713, 80 L.Ed.2d 186 (1984)(rule placing burden of diligence and further inquiry on non-English speaking individual served with a notice in English does not violate due process); Commonwealth v. Olivo, 369 Mass. 62, 337 N.E.2d 904 (Mass.1975)(English-only notices of condemnation did not violate due process or equal protection and defendants were on inquiry notice to find out their meaning).

See also Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1076 (1982), appeal dismissed and cert. denied, 459 U.S. 806, 103 S.Ct. 30, 74 L.Ed.2d 45 (1982)(requirements of reasonable notice satisfied when notice is sent in English).


English-only notices of condemnation did not violate due process or equal protection and defendants were on inquiry notice to find out their meaning


Context: Similarly, in the case of a promissory note or debt cancellation, the amount of the note or debt can be adjusted to take into account the amount of tax liability. But where, as here, there is a repossession of a business or enforcement of creditor's rights under a security agreement, and nothing more, there is no source from which to withhold purchase money.

See State v. Standard Oil Co., 39 Ohio St.2d 41, 45-46, 313 N.E.2d 838, 841 (1974) (foreclosure of defaulting debtor’s property by a creditor holding a perfected security interest in such property was not a “sale” within the meaning of successor liability statute); but see Woods, 585 S.W.2d at 580-82 (bank held to be successor when it chose to purchase the store instead of foreclosing on its security interest).

foreclosure of defaulting debtor's property by a creditor holding a perfected security interest in such property was not a "sale" within the meaning of successor liability statute


Context: In Maryland v. Craig, the Supreme Court has held that the "use of the one-way closed circuit television procedure, where necessary to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause." The Supreme Court also explained that "if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant."

holding that the Confrontation Clause does not categorically prohibit a child witness in a sexual abuse case from testifying against a defendant at trial outside defendant's physical presence by means of one-way closed circuit television

Id. at 855, 110 S.Ct. 3157 (holding that the Confrontation Clause does not categorically prohibit a child witness in a sexual abuse case from testifying against a defendant at trial outside defendant’s physical presence by means of one-way closed circuit television); see also Jelinek v. Costello, 247 F.Supp.2d 212, 240 (E.D.N.Y.2003) (holding that a state court’s decision to use a two-way, closed circuit television during testimony of a child witness was reasonable); see generally N.Y.Crim.

holding that a state court's decision to use a two-way, closed circuit television during testimony of a child witness was reasonable


Context: Additionally, Indiana courts have repeatedly held that drafting or preparing legal instruments- is generally considered practicing law. See State ex rel. Ind. State.

"Drafting and preparing testamentary and trust documents is clearly the practice of law."

Bar Ass’n v. Northouse, 848 N.E.2d 668, 673 (Ind.2006) (“Drafting and preparing testamentary and trust documents is clearly the practice of law.”); see also State ex rel. Ind. State Bar Ass’n v. Diaz, 838 N.E.2d 433, 444 (Ind.2005) (preparation of immigration documents and drafting contracts, pleadings, and a will, constituted unauthorized practice of law); State ex rel. Ind. State Bar Ass’n v. Ind. Real Estate Ass’n, 244 Ind. 214, 220, 191 N.E.2d 711, 715 (1963) (filling in blanks of legal instruments, prepared by attorneys, is considered unauthorized practice of law when doing so involves considerations of significant legal consequences). ' .


filling in blanks of legal instruments, prepared by attorneys, is considered unauthorized practice of law when doing so involves considerations of significant legal consequences


Context: Appellee concedes the error but contends that the issue is not cognizable on direct appeal in light of appellant's failure to contemporaneously object to the mistake at the sentencing hearing. We disagree. Sentencing errors, not involving a factual dispute, which produce an illegal sentence and are apparent from the record may be raised on appeal without a contemporaneous objection.

See also, Dailey v. State, 488 So.2d 532 (Fla.1986) (points improperly added to the guidelines scoresheet because defendant was not under legal constraint when origi nal offense occurred and because there was no supporting evidence for the scoring of victim injury involved factual matters not determinable from the record on appeal).

trial court's failure to make affirmative findings before imposing adult sanctions on juvenile was apparent from the record

State v. Rhoden, 448 So.2d 1013 (Fla.1984) (trial court’s failure to make affirmative findings before imposing adult sanctions on juvenile was apparent from the record); Walker v. State, 462 So.2d 452 (Fla.1985) (trial court’s failure to make findings of fact before sentencing defendant as a habitual offender was apparent from the record); State v. Snow, 462 So.2d 455 (Fla.1985) (trial court’s alleged failure to state with individual particularity reasons for retention of jurisdiction over one-third of defendant’s sentence was determinable from the record); State v. Whitfield, 487 So.2d 1045 (Fla.1986) (points improperly added to scoresheet for victim injury was apparent from the record because the defendant had been convicted of aggravated assault, a crime not involving victim injury); Knight v. State, 501 So.2d 150 (Fla. 1st DCA 1987) (trial court’s error in departing from the sentencing guidelines without giving clear and convincing reasons was apparent from the record).


trial court's failure to make findings of fact before sentencing defendant as a habitual offender was apparent from the record


trial court's alleged failure to state with individual particularity reasons for retention of jurisdiction over one-third of defendant's sentence was determinable from the record


points improperly added to scoresheet for victim injury was apparent from the record because the defendant had been convicted of aggravated assault, a crime not involving victim injury


trial court's error in departing from the sentencing guidelines without giving clear and convincing reasons was apparent from the record


Context: The fact that the "violation" in this case may have been minor in nature is of no legal consequence for "[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."

Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (police officer authorized to arrest driver where neither she nor her children were wearing seat belts); see Arkansas v. Sullivan, 532 U.S. 769, 771, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001) (police officer authorized to arrest driver for speeding); New York v. Class, 475 U.S. 106, 118, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (formal arrest permissible for a traffic offense under New York law); United States v. Scopo, 19 F.3d 777, 781-782 (2d Cir.) (probable cause to stop and arrest driver where police officers observed driver’s failure to signal while changing lanes), cert. denied, 513 U.S. 877, 115 S.Ct. 207, 130 L.Ed.2d 136 (1994).


probable cause to stop and arrest driver where police officers observed driver's failure to signal while changing lanes