Context: No matter what level of review we accord this claim, however, it fails. Battle scored eleven criminal history points, and the subtraction of the one point would not have altered his criminal history category, which applies to defendants with ten to twelve criminal history points. Accordingly, Battle's Guidelines range would be unchanged, and any potential error was harmless.

See United States v. Gerhard, 615 F.3d 7, 34 (1st Cir.2010) (bypassing merits of sentencing calculation claim because any error would not impact the Guidelines range); United States v. Caldwell, 358 F.3d 138, 143 (1st Cir.2004) (rejecting defendant’s claim that he was improperly scored an extra criminal history point because “any error in the district court’s calculation ... was harmless”); see also United States v. Matos, 611 F.3d 31, 40 (1st Cir.2010) (applying plain error review to claim that district court erred in calculating criminal history points because defendant argued to the district court only that the criminal history category generally overstated the seriousness of his past); United States v. Rivera, 448 F.3d 82, 86 n. 1 (1st Cir.2006) (applying plain error review to unpreserved calculation error claim and finding error harmless because any error would not affect the sentencing range).


applying plain error review to unpreserved calculation error claim and finding error harmless because any error would not affect the sentencing range


rejecting defendant's claim that he was improperly scored an extra criminal history point because "any error in the district court's calculation ... was harmless"


Context: Because the Supreme Court in Till was not concerned with the debtor getting a perceived windfall in the event the prime plus interest rate was lower than the contract rate so that the debtor was permitted to retain a lender's collateral while arguably depriving the creditor of its bargained for interest rate, it would seem that Dvor-kin's concern about that issue with respect to the payment of interest on unsecured claims is neither warranted nor consistent with the statutory scheme found in the Bankruptcy Code.

See id. at 478, 124 S.Ct. at 1961 (discussing “the now-irrelevant terms of the parties’ original contract” and how the coerced loan, presumptive contract rate, and cost of funds approaches improperly focus on making the creditor whole); see also In re Washington Mut., Inc., 461 B.R. at 244 (agreeing that a debtor should not have to pay senior creditors more than the Bankruptcy Code allows just because of a contractual agreement); In re Ogle, 261 B.R. 22, 30 (Bankr. D. Idaho 2001) (“[BJankruptcy by its very nature deprives creditors of the benefit of their agreement with a debtor. Conse quently, such a factor, standing alone, doesn’t persuade this Court.” (quoting In re Country Manor of Kenton, Inc., 254 B.R. at 181)). Furthermore, the Supreme Court also expressed concern that the contract rate approach violated the principle of equal treatment of creditors. Till, 541 U.S. at 476-77, 124 S.Ct. at 1959-60 (“Rather, the court should aim to treat similarly situated creditors similarly.”).

discussing "the now-irrelevant terms of the parties' original contract" and how the coerced loan, presumptive contract rate, and cost of funds approaches improperly focus on making the creditor whole


"[BJankruptcy by its very nature deprives creditors of the benefit of their agreement with a debtor. Conse quently, such a factor, standing alone, doesn't persuade this Court." (quoting In re Country Manor of Kenton, Inc., 254 B.R. at 181


"Rather, the court should aim to treat similarly situated creditors similarly."


Context: Weber's substitute might also receive less rest and time off between runs than he or she might otherwise. The mere possibility of an adverse impact on co-workers as a result of "skipping over" is sufficient to constitute an undue hardship.

See Hardison, 432 U.S. at 81, 97 S.Ct. 2264 (the Supreme Court frowned upon a proposed accommodation that affected the possible job preferences of other employees); See also Brener, 671 F.2d 141 (5th Cir.1982), and Eversley, 843 F.2d 172 (5th Cir.1988) (finding that an employer is not required to rearrange its neutral scheduling practices to accommodate an employee).


Context: The fact that the trust is not self-settled does not necessarily mean that it is a spendthrift trust. Courts also focus on "the amount of 'dominion and control' exercised by the debtor over the trust property" in deciding whether the plan sets up a spendthrift trust.

Cf. In re West, 81 B.R. 22, 25-26 (9th Cir. BAP 1987) (court found spendthrift trust where debtor had no direct control over any aspect of the plan and had very restricted access to the account).

Kaplan, 97 B.R. at 577 (court found no spendthrift trust where employee was integrally involved in the decision-making process of the plan and was not restricted from drawing on the account).


Context: In support of his argument, Neto points to early cases in which the Supreme Court indicated that a Due Process analysis might apply to successive prosecutions in certain cases.

finding that separate robbery and kidnaping convictions arising out of the same incident satisfied Blockburger test, but remanding "for a consideration of the state court records in light of the due process standards for successive prosecutions contained in Hoag and Ciucci "

See also Tucker v. Makowski, 883 F.2d 877, 881 (10th Cir. 1989) (finding that separate robbery and kidnaping convictions arising out of the same incident satisfied Blockburger test, but remanding “for a consideration of the state court records in light of the due process standards for successive prosecutions contained in Hoag and Ciucci ”).

stating that there might be "hypothetical situations in which the [Due Process Clause of] the Fourteenth Amendment might prohibit consecutive prosecutions of multiple offenses," but ultimately finding no Due Process violations on the facts

See, e.g., Ciucci v. Illinois, 356 U.S. 571, 573, 78 S.Ct. 839, 2 L.Ed.2d 983 (1958) (per curiam) (finding no Due Process violation “upon the record as it stands,” but noting that two of the justices in the majority might have found “fundamental unfairness” if certain evidence suggesting improper prosecutorial motive were included in the record); Hoag v. New Jersey, 356 U.S. 464, 467-69, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958) (stating that there might be “hypothetical situations in which the [Due Process Clause of] the Fourteenth Amendment might prohibit consecutive prosecutions of multiple offenses,” but ultimately finding no Due Process violations on the facts).


Context: The burden of demonstrating the absence of any genuine issue of material fact is on the party moving for summary judgment.

"The moving party bears the burden of demonstrating the absence of a genuine issue of material fact."

See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (holding the moving party must meet its burden “by ‘showing’ — that is pointing out to the [trial court] that there is an absence of evidence to support the nonmoving party’s case.”); see also Riley & Ephriam Constr. Co., Inc., 408 F.3d 1369, 1371 (Fed.Cir.2005) (“The moving party bears the burden of demonstrating the absence of a genuine issue of material fact.”).

holding the moving party must meet its burden "by 'showing' -- that is pointing out to the [trial court] that there is an absence of evidence to support the nonmoving party's case."


Context: The other required indicia of a compromise verdict are also present here.

finding no compromise verdict because the jury consistently rejected the defendants' affirmative defenses, was not deadlocked, and did not attempt to qualify its verdict or request additional instructions

See Westminster, 12 So.3d at 842 (holding that there was an impermissible compromise where the damages award was inadequate, liability was “hotly contested” at trial, the jury was deadlocked, the court charged the jury to continue deliberating to reach a decision, and less than one hour later the jury returned a verdict); Newalk v. Florida Supermarkets, Inc., 610 So.2d 528, 529 (Fla. 3d DCA 1992) (holding that there was an impermissible compromise because the damages award was inadequate and “liability was hotly disputed by the parties and struggled over by the jury”); see also Burger King Corp. v. Mason, 710 F.2d 1480, 1488 (11th Cir.1983) (finding no compromise verdict because the jury consistently rejected the defendants’ affirmative defenses, was not deadlocked, and did not attempt to qualify its verdict or request additional instructions).

holding that there was an impermissible compromise where the damages award was inadequate, liability was "hotly contested" at trial, the jury was deadlocked, the court charged the jury to continue deliberating to reach a decision, and less than one hour later the jury returned a verdict


holding that there was an impermissible compromise because the damages award was inadequate and "liability was hotly disputed by the parties and struggled over by the jury"


Context: [P 11] Finally, we reject Amile's argument that gratuitous conveyances may be set aside on the basis of a unilateral mistake of fact or law, even in the absence of any inequitable conduct on the part of the grantee. We adopt the reasoning of the Supreme Court of Virginia and conclude that a deed of gift may not be reformed due to the grantor's unilateral mistake in understanding the legal effect of the deed unless the grantor can demonstrate inequitable conduct on the part of the grantee.

See also Poling v. Northup, 652 A.2d 1114, 1116 (Me.1995), Lietz v. Berry, 543 A.2d 367, 368 (Me.1988) (ruling that when only one party misunderstands the effect of a deed, reformation is not available); cf. Weeks v. Weeks, 650 A.2d 945, 947 (Me.1994); Lalime v. Lalime, 629 A.2d 59, 60-61 (Me.1993) (grantor’s motive for transferring property to wife in joint tenancy does not overcome the presumption of a gift to the martial estate created by the deed).

grantor's motive for transferring property to wife in joint tenancy does not overcome the presumption of a gift to the martial estate created by the deed


Context: . The dissent disagrees with our reading of Dodds and argues that the Arkansas courts have not explicitly adopted the doctrine of uberrimae fidei. Even if we were to agree with the dissent's reading of Dodds, however, Stipcich nonetheless still counsels that we take uberrimae fidei to be the law of Arkansas because there is an absence of an explicit rejection of this "generally recognized rule."

"This generally recognized rule, in the absence of authoritative local decision, we take to be the law of Oregon."

See Stipcich, 277 U.S. at 318, 48 S.Ct. 512 ("This generally recognized rule, in the absence of authoritative local decision, we take to be the law of Oregon.”); see also Cohen, Friedlander & Martin Co. v. Mass. Mut. Life Ins. Co., 166 F.2d 63, 66 (6th Cir.1948) (following Stipcich and applying the doctrine of uberrimae fidei in the absence of state law to the contrary).


Context: Courts have generally been unwilling to impose IIED liability where, as here, unwanted and/or sexually aggressive, advances transpire between two adults.

"[i]t is not outrageous in the extreme to behave as people commonly behave in certain circumstances"

See, e.g., Jones v. Clinton, 990 F.Supp. 657, 664-66, 676-77 (E.D.Ark.1998) (granting summary judgment in favor of the defendant on an IIED claim based on alleged sexual misconduct, including that the defendant “exposed his penis (which was erect) and told [the plaintiff] to ‘kiss it’ ”); McClinton v. Sam’s East, Inc., 2012 WL 4483492, *1, *9 (W.D.La. Sept. 28, 2012) (dismissing the plaintiffs IIED claim, despite allegations of sexual harassment by his female supervisor, such as unwanted rubbing, hugging, and sexual comments) (citing Smith v. Amedisys Inc., 298 F.3d 434, 449-50 (5th Cir.2002)); see also Harris v. Pameco Corp., 170 Or.App. 164, 171-72, 12 P.3d 524 (2000) (summarizing the case law surrounding sexually-based IIED claims in Oregon and noting that “[t]he invitation to [engage in] illicit intercourse, insufficient in itself to be actionable, becomes extreme, outrage when it is prolonged and repeated to the point of hounding, and accompanied by advertising”) (citation and internal quotations and brackets omitted); Hetfeld v. Bostwick, 136 Or.App. 305, 310-11, 901 P.2d 986, rev. denied, 322 Or. 360, 907 P.2d 247 (1995) (“[i]t is not outrageous in the extreme to behave as people commonly behave in certain circumstances”) (internal quotations omitted).

granting summary judgment in favor of the defendant on an IIED claim based on alleged sexual misconduct, including that the defendant "exposed his penis (which was erect


dismissing the plaintiffs IIED claim, despite allegations of sexual harassment by his female supervisor, such as unwanted rubbing, hugging, and sexual comments


Context: Given the obvious constraints on the usefulness of legislative history as an indicator of Congress's collective purpose, this prong by itself is not determinative in the absence of "unmistakable evidence of punitive intent."

finding an employment ban to constitute a bill of attainder where committee reports characterized the affected persons as "subversive" and "unfit" for government service

See Lovett, 328 U.S. at 312, 314, 66 S.Ct. at 1077, 1078 (finding an employment ban to constitute a bill of attainder where committee reports characterized the affected persons as “subversive” and “unfit” for government service); cf. Nixon, 433 U.S. at 479, 97 S.Ct. at 2808-09 (finding no bill of attainder where the relevant committee reports “cast no aspersions on appellant’s personal conduct and contained] no condemnation of his behavior as meriting the infliction of punishment”).

finding no bill of attainder where the relevant committee reports "cast no aspersions on appellant's personal conduct and contained] no condemnation of his behavior as meriting the infliction of punishment"


Context: However, if, despite its protection, bankruptcy did occur, the debtor's protection and remedy remained under the Bankruptcy Act."). Because the Supreme Court has instructed that SS 1673 does not provide for an exemption in bankruptcy, that statutory provision has no bearing on this case.

"Stated simply, once the [debtors] sought bankruptcy protection, the Bankruptcy Code and applicable state and federal property exemption statutes governed their rights and remedies-not the limitation on garnishment of wages contained in 15 U.S.C. SS 1673"

See Smith v. Frazier, 421 B.R. 513, 518 (S.D.Ill.2009) (“Stated simply, once the [debtors] sought bankruptcy protection, the Bankruptcy Code and applicable state and federal property exemption statutes governed their rights and remedies-not the limitation on garnishment of wages contained in 15 U.S.C. § 1673”); see also In re Riendeau, 293 B.R. 832, 838-39 (D.Vt.2002) (relying on Kokoszka in denying the debtor’s claim that § 1673 provides an exemption in bankruptcy).

relying on Kokoszka in denying the debtor's claim that SS 1673 provides an exemption in bankruptcy


See Smith v. Frazier, 421 B.R. 513, 518 (S.D.Ill.2009) (“Stated simply, once the [debtors] sought bankruptcy protection, the Bankruptcy Code and applicable state and federal property exemption statutes governed their rights and remedies-not the limitation on garnishment of wages contained in 15 U.S.C. § 1673”); see also In re Riendeau, 293 B.R. 832, 838-39 (D.Vt. 2002) (relying on Kokoszka in denying the debtor’s claim that § 1673 provides an exemption in bankruptcy).


Context: Only where there are no disputed questions of historical fact does the court make the excessive force determination on its own, such as on summary judgment.

noting that "while probable cause is usually a question for the jury, a court should decide it when there is no genuine issue of material fact"

See Keylon v. City of Albuquerque, 535 F.3d 1210, 1215 (10th Cir.2008) (noting that “while probable cause is usually a question for the jury, a court should decide it when there is no genuine issue of material fact”); see also Scott v. Harris, 550 U.S. 372, 386, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (concluding that officer’s conduct in ending high-speed chase was objectively reasonable given undisputed video showing recklessness of fleeing driver).

concluding that officer's conduct in ending high-speed chase was objectively reasonable given undisputed video showing recklessness of fleeing driver


Context: We have jurisdiction to adjudicate this appeal pursuant to 18 U.S.C. SS 3742(b). Whether the district court had jurisdiction to resentence Diaz-Clark is a legal question subject to plenary review.

'Whether a court has jurisdiction over a particular case is a question of law subject to plenary review."

See United States v. Sjeklocha, 114 F.3d 1085, 1087 (11th Cir.1997) (“The question whether the district court had the authority to resentence the defendant under former Fed.R.Crim.P. 35(a) and 28 U.S.C. § 2255 is a legal question subject to plenary review.”); see also United States v. Maduno, 40 F.3d 1212, 1215 (11th Cir.1994) (‘Whether a court has jurisdiction over a particular case is a question of law subject to plenary review.”).

"The question whether the district court had the authority to resentence the defendant under former Fed.R.Crim.P. 35(a


Context: Where, as here, the scope of a water right is defined by contract, the general provisions of Colorado water law are not necessarily inapplicable, but their application is subject to the terms of the contract.

Merrick v. Fort Lyon Canal Co., 621 P.2d 952, 955-56 & nn. 3, 4 (Colo.1981) (holding that contract provisions controlled over provisions of plan for augmentation statute, section 37-92-305(3)); see also Estes Park, 677 P.2d at 326-27 (applying contract terms rather than statutory provisions in denying plan for augmentation); Perdue v. Fort Lyon Canal Co., 184 Colo. 219, 223, 519 P.2d 954, 956 (1974) (regardless of statutory provisions, an appropriator may by contract make its priority inferior to another). Thus, Thornton’s assertions that its proposals will not injure other appropriators and will comply with the statutory provisions addressing replacement and exchange are not relevant to our evaluation.


regardless of statutory provisions, an appropriator may by contract make its priority inferior to another


Context: Other jurisdictions have reached a similar result with respect to the medical profession. The Washington Court of Appeals has held that although the entrepreneurial or commercial aspects of the practice of medicine are covered as "trade or commerce" under that state's consumer protection act, violations predicated on negligence or malpractice, whether legal or medical, are not covered because those claims address only competence.

adopting "entrepreneurial" test from Quimby and applying it in legal malpractice setting

See Quimby v. Fine, 45 Wash. App. 175, 180, 724 P.2d 403 (1986) (holding that claims that relate to “actual competence of the medical practitioner” are not recognized under state’s consumer protection act, but claims implicating entrepreneurial aspects of practice of medicine may be sufficient), rev. denied, 107 Wash. 2d 1032 (1987); see also Ikuno v. Yip, 912 F.2d 306, 312 (9th Cir. 1990) (applying Washington law, Court of Appeals concluded that “Washington has recognized that both the practice of law and medicine may give rise to [consumer protection act] claims. . . . These may arise, however, only when the actions at issue are chiefly concerned with ‘entrepreneurial’ aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the ‘competence of and strategy’ employed by the . . . [defendant].” [Citations omitted.]); Eriks v. Denver, 118 Wash. 2d 451, 465, 824 P.2d 1207 (1992) (adopting “entrepreneurial” test from Quimby and applying it in legal malpractice setting); Jaramillo v. Morris, 50 Wash. App. 822, 827, 750 P.2d 1301 (relying on Quimby and holding that negligence claims against hospital were not cognizable under state’s consumer protection act because “[t]he entrepreneurial aspects of the hospital’s business, such as billing, were not implicated”), rev. denied, 110 Wash. 2d 1040 (1988); Burnet v. Spokane Ambulance, 54 Wash. App. 162, 166-67, 772 P.2d 1027 (relying on Quimby and Jaramillo in holding that negligence claims asserted against hospital did not include entrepreneurial aspect of hospital’s operations, so that claims fell outside reach of state’s consumer protection act), rev. denied, 113 Wash. 2d 1005 (1989).

holding that claims that relate to "actual competence of the medical practitioner" are not recognized under state's consumer protection act, but claims implicating entrepreneurial aspects of practice of medicine may be sufficient


relying on Quimby and holding that negligence claims against hospital were not cognizable under state's consumer protection act because "[t]he entrepreneurial aspects of the hospital's business, such as billing, were not implicated"


relying on Quimby and Jaramillo in holding that negligence claims asserted against hospital did not include entrepreneurial aspect of hospital's operations, so that claims fell outside reach of state's consumer protection act


Context: In this circuit, the excuse given for the late filing is given the more weight than the other Pioneer factors.

Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411, 416 (2d Cir.2004) (discussing excusable neglect in the context of Fed. R. App. P. 4(a)). The Second Circuit has taken a “hard line” approach in applying the Pioneer standard.

giving "little weight to the fact that the counsel was experiencing upheaval in his law practice at the time of the bar date"

See also Pioneer, 507 U.S. at 398, 113 S.Ct. 1489 (giving “little weight to the fact that the counsel was experiencing upheaval in his law practice at the time of the bar date”); Canfield, 127 F.3d at 251; In re Dana Corp., No. 06-10354(BRL), 2008 WL 2885901, at *5 (Bankr.S.D.N.Y. July 23, 2008) (“[O]ffice mix-ups, clerical mistakes, and failure to follow office procedures do not generally constitute excusable neglect.”).


"[O]ffice mix-ups, clerical mistakes, and failure to follow office procedures do not generally constitute excusable neglect."


Context: This Court is persuaded by the reasoning of the court in Burbank. The holding in Burbank is consistent with earlier decisions examining means test deductions in both Chapter 13 and Chapter 7 cases and reflects this Court's view that the expense side of the disposable income equation is not susceptible to the realistic approach.

Chapter 13 debtor is entitled to ownership expense for vehicle owned outright under 11 U.S.C. SS 707(b

See In re Mati, 390 B.R. 11 (Bankr.D.Mass.2008)(Chapter 13 debtor is entitled to ownership expense for vehicle owned outright under 11 U.S.C. § 707(b) (2) (A) (ii) (I)); In re Phillips, 382 B.R. 153 (Bankr.D.Mass.2008) (Chapter 13 debtor is entitled to standard housing deduction under 11 U.S.C. § 707(b) (2) (A) (ii) (I) even though her monthly rent was less than standard deduction); In re Guerriero, 383 B.R. 841 (Bankr.D.Mass.2008)(Chapter 7 debtors are allowed to reduce “current monthly income” by amount of payments to mortgagee where they have indicated their intention to surrender property).

See also In re Lane, 394 B.R. 248 (Bankr.D.Mass. 2008) (Chapter 13 debtor may claim phan tom ownership expense on vehicle owned outright); In re Young, 392 B.R. 6 (Bankr. D.Mass.2008) (same); In re Hayes, 376 B.R. 55 (Bankr.D.Mass.2007) (Chapter 7 debtors were entitled to deduct from their current monthly income the monthly average of the mortgage payments which they were contractually obligated to make on date petition was filed over the next 60 months, without regard to whether they intended to surrender the mortgaged property); In re Hartwick, 359 B.R. 16 (Bankr.D.N.H.2007) (same).


Chapter 7 debtors were entitled to deduct from their current monthly income the monthly average of the mortgage payments which they were contractually obligated to make on date petition was filed over the next 60 months, without regard to whether they intended to surrender the mortgaged property


But see In re Coffin, 396 B.R. 804 (Bankr.D.Me.2008) (Chapter 13 debtor was not entitled to deduct phantom ownership expenses for vehicles owned outright).


Chapter 13 debtor is entitled to standard housing deduction under 11 U.S.C. SS 707(b


Chapter 7 debtors are allowed to reduce "current monthly income" by amount of payments to mortgagee where they have indicated their intention to surrender property


Context: [IT 23] Federal courts have held that the public safety exception applies to law enforcement questioning related to the location of a gassing generator or other methamphetamine manufacturing equipment.

holding that questions about the location of a gassing generator and other equipment related to the production of methamph'etamine fall within the "protective sweep" exception to Miranda

See, e.g., United States v. Noonan, 745 F.3d 934, 938 (8th Cir.2014) (holding that the public safety exception applied when a deputy had probable cause to believe that a stopped driver was a methamphetamine manufacturer and the officer asked if a “one pot” was in the car to avoid being sprayed with toxic chemicals); United States v. King, 182 Fed.Appx. 88, 91 (3d Cir.2006) (holding that officers’ pre-Mi-randa questions concerning active methamphetamine production were within the public safety exception); see also State v. Bilynsky, 2007 ME 107, ¶¶ 29-30, 932 A.2d 1169 (holding that questions about the location of a gassing generator and other equipment related to the production of methamph'etamine fall within the “protective sweep” exception to Miranda).

holding that the public safety exception applied when a deputy had probable cause to believe that a stopped driver was a methamphetamine manufacturer and the officer asked if a "one pot" was in the car to avoid being sprayed with toxic chemicals


holding that officers' pre-Mi-randa questions concerning active methamphetamine production were within the public safety exception


Context: The sole basis for the government's argument appears to be that Finley's employer, not Finley, had a property interest in the phone and that Finley should have expected the employer to read the messages on the phone after he returned it to the employer. But a property interest in the item searched is only one factor in the analysis, and lack thereof is not dispositive.

"[N]o one of [the Ibarra] factors is necessarily decisive .... "

See, e.g., Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (“[C]apacity to claim the protection of the [Fourth] Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion.”); see also Cardoza-Hinojosa, 140 F.3d at 615 (“[N]o one of [the Ibarra] factors is necessarily decisive .... ”).

"[C]apacity to claim the protection of the [Fourth] Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion."


Context: (Emphasis added). Harrod argues that "similitude" includes only items that "bear[ ] such a likeness or resemblance to any of the genuine obligations or securities issued under the authority of the United States as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care when dealing with a person supposed to be upright and honest."

See also United States v. Smith, 318 F.2d 94 (4th Cir.1963) (holding that one-sided bogus bills with indistinct reverse duplicates of real bills were not counterfeit as a matter of law). Courts have traditionally applied this standard for “similitude” in counterfeiting cases, including § 474 cases.

upholding conviction under 18 U.S.C. SS 264 for possession of one-sided copies of bills and various counterfeiting equipment

United States v. Lustig, 159 F.2d 798, 802 (3d Cir.) (upholding conviction under 18 U.S.C. § 264 for possession of one-sided copies of bills and various counterfeiting equipment), cert. denied, 331 U.S. 853, 67 S.Ct. 1737, 91 L.Ed. 1861 (1947), order vacated on reh’g and cert. granted, 333 U.S. 835, 68 S.Ct. 601, 9 L.Ed. 1119 (1948), rev’d on other grounds, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949).


holding that the district judge properly submitted to the jury the question of whether uncut bills were counterfeit under SS 471

See, e.g., United States v. Cantwell, 806 F.2d 1463, 1470 (10th Cir.1986) (holding that the district judge properly submitted to the jury the question of whether uncut bills were counterfeit under § 471); United States v. Hall, 801 F.2d 356, 360 (8th Cir.1986) (holding that defendant was not entitled to the similitude instruction under § 472 where facts indicated an overt attempt to pass an altered Federal Reserve note); United States v. Chodor, 479 F.2d 661, 664 (1st Cir.), cert. denied, 414 U.S. 912, 94 S.Ct. 254, 38 L.Ed.2d 151 (1973) (holding that bogus bills lacking serial numbers and a treasury seal sufficiently resembled real currency under § 474 to submit to the jury the counterfeit issue); United States v. Johnson, 434 F.2d 827, 829 (9th Cir.1970) (holding that one-sided photocopies of bills on pinkish paper did not sufficiently resemble actual currency to justify a § 472 conviction).


holding that defendant was not entitled to the similitude instruction under SS 472 where facts indicated an overt attempt to pass an altered Federal Reserve note


holding that bogus bills lacking serial numbers and a treasury seal sufficiently resembled real currency under SS 474 to submit to the jury the counterfeit issue


holding that one-sided photocopies of bills on pinkish paper did not sufficiently resemble actual currency to justify a SS 472 conviction


Context: It remains unclear, however, exactly what Mr. Watrous asserts as the "personal interest" at stake for the other alleged co-conspirators. Some courts have found that personal bias, by itself, is not the same as having a personal interest.

"Although the complaint includes an allegation that Rodriguez-Torres wanted to 'get rid of plaintiff, personal bias does not constitute personal interest and is not sufficient to defeat the intracorporate conspiracy doctrine."

See Johnson v. Nyack Hosp., 954 F.Supp. 717, 723 (S.D.N.Y.1997) (“[P]ersonal bias is not the sort of personal interest that takes a defendant out of the intraenterprise conspiracy doctrine where, as here, the action complained of arguably served a legitimate interest of Nyack Hospital.”); see also Bond v. Bd. of Educ. of City of New York, No. 97CV1337, 1999 WL 151702, *2 (E.D.N.Y. March 17, 1999) (“Although the complaint includes an allegation that Rodriguez-Torres wanted to ‘get rid of plaintiff, personal bias does not constitute personal interest and is not sufficient to defeat the intracorporate conspiracy doctrine.”).

"[P]ersonal bias is not the sort of personal interest that takes a defendant out of the intraenterprise conspiracy doctrine where, as here, the action complained of arguably served a legitimate interest of Nyack Hospital."


Context: At the time Officer Robertson requested a K-9 unit, the officers had seen only one knife in a passenger's possession (and not in Baker's possession). While it was the early morning hours, and there were four passengers in the car, nothing in the officers' testimony indicates any particularized suspicion involving criminal activity on the part of the passengers; thus, continued detention was impermissible.

See State v. Chapman, 921 P.2d 446, 453 (Utah 1996) (determining that continued detention of the defendant was impermissible when "[bly the officers' own testimony, no independent facts surrounding the encounter with [the defendant] created suspicion that he was involved in any illegal activity beyond [the reason he was initially stopped]"); cf. Pringle, 540 U.S. at 373, 124 S.Ct. 795 (determining that the large amount of money and drugs in the car made it "reasonable for the officer to infer a common [criminal] enterprise among the three [occupants of the car]"); United States v. Di Re, 332 U.S. 581, 593-94, 68 S.Ct. 222, 92 L.Ed. 210 (1948) (stating that where police officers have no evidence or information implicating a suspect, "mere presence" in the car does not give officers probable cause to believe that a suspect was involved in a crime). According ly, we hold that Baker's detention following the driver's arrest was in violation of his Fourth Amendment rights and that all evidence subsequently recovered must be excluded. See State v. Hansen, 2002 UT 125, ¶ 62, 63 P.3d 650; State v. Larocco, 794 P.2d 460, 472 (Utah 1990).


stating that where police officers have no evidence or information implicating a suspect, "mere presence" in the car does not give officers probable cause to believe that a suspect was involved in a crime


Context: See Pis.' Reply & Opp'n [ECF 41] ("AFRC MSJ Reply") 1, 7. AFRC cites four decisions from courts outside this circuit for the proposition that giving 60-day notice is the sole exhaustion requirement for an ESA claim; it also cites eight additional decisions purportedly holding that the 60-day notice requirements in other environmental citizen suit provisions similarly "override any prudential exhaustion requirement[s]."

finding no "suggestion] of any legislative intent to require exhaustion of the FIFRA remedy before seeking relief under the ESA"

See, e.g., Wash. Toxics, 413 F.3d at 1033 (finding no “suggestion] of any legislative intent to require exhaustion of the FIFRA remedy before seeking relief under the ESA”); Coal. for Sustainable Res., 48 F.Supp.2d at 1312 & n. 6 (plaintiff suing under ESA citizen suit provision was not required to go through “administrative adjudication process”); Ky. Heartwood, 20 F.Supp.2d at 1091 (stating that “exhaustion of administrative remedies is not a mandatory precondition to filing suit for a violation of the ESA” (emphasis added)); Silver, 924 F.Supp. at 987 (60-day notice in ESA citizen suit provision excuses plaintiffs from having to exhaust administrative remedies prescribed in agency’s regulations); see also Sims, 530 U.S. at 112, 120 S.Ct. 2080 (recognizing that issue exhaustion requirement and requirement exhaustion of remedies are different).


plaintiff suing under ESA citizen suit provision was not required to go through "administrative adjudication process"


stating that "exhaustion of administrative remedies is not a mandatory precondition to filing suit for a violation of the ESA" (emphasis added


60-day notice in ESA citizen suit provision excuses plaintiffs from having to exhaust administrative remedies prescribed in agency's regulations


Context: Mr. Portlock does not cite any authority for his assertion that the lack of a complete date on the warrant renders it constitutionally infirm, nor has any been located. On the contrary, similar clerical errors and omissions have been held not to affect the validity of a search warrant.

See, e.g., United States v. Bonner, 808 F.2d 864, 866-67 (1st Cir.1986) (finding warrant valid despite omission of address of location to be searched and referring to such as “a minor, technical omission”); Ross v. United States, No. CR. 496150(1)JRTAJB, Civ. 03-1020(JRT), 2003 WL 22076607, at *4 n. 4 (D.Minn. Sep. 2, 2003) (rejecting claim that warrant was invalid where, due to clerical error, warrant reflected that it was issued on August 31 but executed on August 27); United States v. Albert, 195 F.Supp.2d 267, 274 (D.Mass.2002) (concluding that omission from warrant of reference to list of items to be seized was merely “a clerical error that posed no real risk to legitimate privacy interests”); cf. United States v. Berry, 113 F.3d 121, 124 (8th Cir.1997) (reversing district court’s grant of motion to suppress which had been based on warrant’s failure to specifically authorize nighttime search; affidavit clearly had contemplated a nighttime search, warrant was presented for signature at issuing judge’s home at 12:30 a.m., and it was thus apparent to the appellate court “that the wording of the concluding paragraph in the warrant was the result of some sort of clerical error”); United States v. Klaia, 127 F.2d 529, 530 (2d Cir.1942) (finding omission of date from copy of search warrant was trivial and harmless where original was properly dated).

finding warrant valid despite omission of address of location to be searched and referring to such as "a minor, technical omission"


rejecting claim that warrant was invalid where, due to clerical error, warrant reflected that it was issued on August 31 but executed on August 27


concluding that omission from warrant of reference to list of items to be seized was merely "a clerical error that posed no real risk to legitimate privacy interests"


Context: This is so even when there is an applicable non-delegable duty under state law.

finding, in spite of the government's non-delegable duty to monitor the activities of independent contractors hired to dispose of hazardous waste under Florida law, that the Navy was free to delegate its safety responsibilities in the absence of federal legislation dictating otherwise

See Andrews, 121 F.3d at 1438-40, 1442 (finding, in spite of the government’s non-delegable duty to monitor the activities of independent contractors hired to dispose of hazardous waste under Florida law, that the Navy was free to delegate its safety responsibilities in the absence of federal legislation dictating otherwise); but see Dickerson, Inc. v. United States, 875 F.2d 1577, 1582-84 (11th Cir.1989).

See also Berrien v. United States, 711 F.3d 654, 659 (6th Cir.2013) (holding the FTCA exemption of liability for independent contractors preempts state law where it imposes non-delegable duties); accord Alinsky v. United States, 415 F.3d 639, 645 (7th Cir.2005); Roditis v. United States, 122 F.3d 108, 111 (2d Cir.1997); Norman v. United States, 111 F.3d 356, 358 (3d Cir.1997); Hall, 825 F.Supp. at 433 (noting the First Circuit has not recognized state law tort duties as limitations on the United States’ discretion under the FTCA); Berkman v. United States, 957 F.2d 108, 113 (4th Cir.1992).


Context: While we agree with the special master that Standards 44 and 68 have been violated by respondent and that violation of Standard 44 is punishable by disbarment, we do not believe that disbarment is the appropriate level of discipline for the violation in this case. We note that we previously have suspended attorneys from the practice of law for a single violation of Standard 44 and a failure to respond to the disciplinary process.

See also In the Matter of Voss, 272 Ga. 9 (525 SE2d 89) (2000) (18-month suspension for violation of Standards 22, 44, and 68); In re Gardner, 265 Ga. 482 (458 SE2d 355) (1995) (six-month suspension with conditional reinstatement for violation of Standards 22, 44, and 68); In re Kendall, 260 Ga. 767 (400 SE2d 13) (1991) (six-month suspension for violation of Standards 21, 44, and 68); In re Roberts, 257 Ga. 721 (363 SE2d 256) (1988) (six-month suspension for violation of Standards 22, 44, and 68).

See In re Benning, 270 Ga. 135 (508 SE2d 660) (1998) (indefinite suspension until Benning, who had no prior disciplinary history, responds to disciplinary authorities); In re Cole man, 266 Ga. 652 (472 SE2d 841) (1996) (six-month suspension with conditional reinstatement); In re Shearouse, 264 Ga. 497 (448 SE2d 202) (1994) (one-year suspension with conditional reinstatement); In re Carmichael, 258 Ga. 209 (367 SE2d 549) (1988) (90-day suspension and public reprimand for violation of Standards 44 and 68).


six-month suspension with conditional reinstatement for violation of Standards 22, 44, and 68


six-month suspension for violation of Standards 21, 44, and 68


six-month suspension for violation of Standards 22, 44, and 68


disbarred for violation of Standards 44 and 68, and disbarment rendered moot a second disciplinary action seeking an emergency suspension due to respondent's indictment on felony charges

But see In re Keeble, 271 Ga. 623 (523 SE2d 563) (1999) (disbarred for violation of Standards 44 and 68, and disbarment rendered moot a second disciplinary action seeking an emergency suspension due to respondent’s indictment on felony charges); In re Smith, 271 Ga. 432 (520 SE2d 903) (1999) (disbarred for violation of Standards 44 and 68); In re Woodard, 270 Ga. 891 (515 SE2d 147) (1999) (disbarred for violation of Standards 22, 44, and 68).


90-day suspension and public reprimand for violation of Standards 44 and 68


Context: . Even had the trial court expressly found a physical and not a regulatory taking had occurred, this would be a conclusion of law subject to our de novo review.

See Mutschler v. City of Phoenix, 212 Ariz. 160, ¶¶ 8-9, 129 P.3d 71, 73 (App.2006) (reviewing de novo trial court's summary judgment on issue of taking); see also Gammoh v. City of La Habra, 395 F.3d 1114, 1122 (9th Cir.2005) (summary judgment ruling that no regulatory taking occurred subject to de novo review); City of Sherman v. Wayne, 266 S.W.3d 34, 46 (Tex.App.2008) (whether taking occurred ultimately question of law).


Context: Nevertheless, to file a brief after indicating that he would do Moreover, he failed to respond to the Government' dismiss his appeal for such failure. Under these circumstances, the BIA's dismissal of Zhao's appeal was proper.

See Rioja, 317 F.3d at 515-16 (finding summary dismissal was proper where appellant failed to file a brief after indicating that he would do so, or to explain the reasons for such failure); Kokar v. Gonzales, 478 F.3d 803, 811-13 (7th Cir.2007) (same); see also Singh, 416 F.3d at 1014 (finding that an appellant’s failure to file a brief cannot be attributed to a deficiency in the BIA’s notice procedures when counsel’s actions clearly show that the failure was due to his oversight and error); Toquero v. I.N.S., 956 F.2d 193, 196-97 (9th Cir.1992) (finding that the BIA’s dismissal of petitioner’s appeal was justified when counsel was on notice that the failure to file a brief could result in summary dismissal but failed to file a brief or explain such failure).

finding that an appellant's failure to file a brief cannot be attributed to a deficiency in the BIA's notice procedures when counsel's actions clearly show that the failure was due to his oversight and error


finding that the BIA's dismissal of petitioner's appeal was justified when counsel was on notice that the failure to file a brief could result in summary dismissal but failed to file a brief or explain such failure


Context: The court further declines to exercise its discretion, which it believes it possesses under Rule 4(m), to extend the time allowed for service of process, notwithstanding the fact that Mr. Hammad may be barred by the applicable statutes of limitations from reinsti-tuting his case following its dismissal.

"Rule 4(j) [now Rule 4(m) ] does not ... give the appellant a right to refile without the consequence of time defenses, such as the statute of limitations"

See Boley, supra, 123 F.3d at 759 (“The district court, of course, retains discretion to refuse to extend time, even if the statute of limitations has run”); cf. Mendez, 45 F.3d at 78 (“Rule 4(j) [now Rule 4(m) ] does not ... give the appellant a right to refile without the consequence of time defenses, such as the statute of limitations”). Accordingly, Mr. Hammad’s complaint will be dismissed without prejudice as provided by Rule 4(m).

"The district court, of course, retains discretion to refuse to extend time, even if the statute of limitations has run"


Context: I disagree. A governmental officer's claim that a plaintiff is only seeking retrospective damages is not an affirmative defense.-' We have treated claims seeking retrospec-' five damages as being barred by immunity from suit--which implicates courts' subject matter jurisdiction--and dismissing the claims.

"Because the Officers sought only retrospective relief, their declaratory judgment claims must be dismissed."

See Heinrich, 284 S.W.3d at 380 (“[Heinrich’s] claims for prospective declaratory and injunctive relief against -the Board members and the mayor in their official capacities may go forward, but we dismiss her retrospective claims against them.”); see also City of Dallas v. Albert, 354 S.W.3d 368, 379 (Tex.2011) (“Because the Officers sought only retrospective relief, their declaratory judgment claims must be dismissed.”). Therefore, a request for findings of fact was not necessary in order to preserve the issue.

"[Heinrich's] claims for prospective declaratory and injunctive relief against -the Board members and the mayor in their official capacities may go forward, but we dismiss her retrospective claims against them."


Context: Quade contends that equitable estoppel excuses him from having to personally serve a notice of 61aim on defendants. This argument fails for two reasons. First, Quade did not raise this argument in the district court.

"As a general rule, we will not consider arguments that are raised for the first time on appeal."

See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“As a general rule, we will not consider arguments that are raised for the first time on appeal.”). Second, even if we were to consider the merits of equitable estoppel, Quade did not allege conduct on the part of either individual defendant that prevented him from serving them with notice of his claims.

equitable estoppel "focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit"

See Gorman v. Pima County, 230 Ariz. 506, 287 P.3d 800, 804-05 (Ct. App. 2012) (elements of equitable estop-pel); see also Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000) (equitable estoppel “focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit”), overruled on other grounds by Socop-Gonzalez v. INS, 272 F.3d 1176, 1194-96 (9th Cir. 2001) (en banc).


Context: The AFTE itself publishes within the field of toolmark and firearms identification.

"The fact that articles submitted to the AFTE Journal are subject to peer review weighs strongly in favor of admission."

See Diaz, 2007 WL 485967, at *8 (“The fact that articles submitted to the AFTE Journal are subject to peer review weighs strongly in favor of admission.”); see also Otero, 849 F.Supp.2d at 433 (noting AFTE Journal’s formal process for the submission of articles); Taylor, 663 F.Supp.2d at 1176 (finding the peer review factor “clearly weighs in favor of admissibility”).

noting AFTE Journal's formal process for the submission of articles


finding the peer review factor "clearly weighs in favor of admissibility"


Context: MThe court held that "until judgment is rendered in which some disposition is made of the child under Section 211.181, there is no final appealable judgment."

appeal dismissed on basis that "absent an order of disposition concerning [the juvenile], there is no final, appealable judgment or order"

See, e.g., M.P.R., 381 S.W.3d at 393-94 (appeal dismissed on basis that “absent an order of disposition concerning [the juvenile], there is no final, appealable judgment or order”); In re T.E., 35 S.W.3d 497, 505 (Mo.App.2001) (a finding of jurisdiction that “simply affirmed the ... previous order placing [child] in protective custody pending a disposition hearing,” is not a final judgment for purposes of appeal); Interest of K.S., 856 S.W.2d 915, 917 (Mo.App.1993) (dismissing appeal where “there was no disposition; hence, no judgment from which an appeal will lie”).

noting that "the adjudication order was not ap-pealable until the dispositional hearing ... and the judgment thereafter"

See also O.J.B., 436 S.W.3d at 730 n. 2 (noting that “the adjudication order was not ap-pealable until the dispositional hearing ... and the judgment thereafter”).


a finding of jurisdiction that "simply affirmed the ... previous order placing [child] in protective custody pending a disposition hearing," is not a final judgment for purposes of appeal


Context: Moreover, any diminution in the originals' value is justified because of the importance of excising this information to protect the privacy interests of the victims and intended victims.

upholding partial redaction of Kaczynski's psychiatric and competency reports, because court properly balanced privacy interests versus public right to know

See, e.g., United States v. Kaczynski, 154 F.3d 930, 932 (9th Cir.1998) (upholding partial redaction of Kaczynski’s psychiatric and competency reports, because court properly balanced privacy interests versus public right to know); cf. Favish v. Office of Indep. Counsel, 217 F.3d 1168, 1173 (9th Cir.2000) (discussing privacy interests of survivors under Freedom of Information Act).


Context: There is one additional aspect of the fraud analysis that the district court did not address. If the declarant subjectively believes the applicant has a superior right to use the mark, there is no fraud, even if the declarant was mistaken.

"There is no fraud if a false misrepresentation is occasioned by an honest misunderstanding or inadvertence without a willful intent to deceive."

See Bose, 580 F.3d at 1246 (“There is no fraud if a false misrepresentation is occasioned by an honest misunderstanding or inadvertence without a willful intent to deceive.”). Here, The Florida Priory did not put forth any evidence to establish that Pace — or Plaintiff Order, for that matter — knew or believed that The Ecumenical Order or The Florida Priory had a superior right to the marks at issue. See Angel Flight, 522 F.3d at 1211; Citibank, 724 F.2d at 1545 (rejecting a defendant’s fraud claim where the plaintiff was the “senior use[r] of th[e] term”); see also Sovereign Order of Saint John v. Grady, 119 F.3d 1236, 1241 (6th Cir.1997) (“[A] valid trademark registration requires only that the registrant ‘believe’ himself to be the owner of the mark.” (quoting 15 U.S.C. § 1051)). Even assuming knowledge of The Ecumenical Order as of 1983, Plaintiff Order’s relevant service mark registrations provide that the marks were first used in commerce in 1926 and 1927.

"[A] valid trademark registration requires only that the registrant 'believe' himself to be the owner of the mark." (quoting 15 U.S.C. SS 1051


rejecting a defendant's fraud claim where the plaintiff was the "senior use[r] of th[e] term"


Context: If a defendant objects to the declaration of a mistrial, a mistrial must be manifestly necessary for the defendant to be retried or risk violating double jeopardy principles. Manifest necessity analysis generally requires a consideration of whether reasonable alternatives to a mistrial exist.

noting that trial judge should declare a mistrial over the defendant's objection "under urgent circumstances, and for very plain and obvious causes"

Cornish v. State, 272 Md. 312, 322 A.2d 880, 886 (1974) (“[R]etrial is barred by the Fifth Amendment where reasonable alternatives to a mistrial, such as a continuance, are feasible and could cure the problem.”); see also United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 165 (1824) (noting that trial judge should declare a mistrial over the defendant’s objection “under urgent circumstances, and for very plain and obvious causes”).

"[R]etrial is barred by the Fifth Amendment where reasonable alternatives to a mistrial, such as a continuance, are feasible and could cure the problem."


Context: A district court's "ability to review matters related to military discharges is limited, as military personnel decisions themselves lie outside the court's jurisdiction."

while "courts do sometimes review the actions of military agencies, the Court's jurisdiction in this area is typically limited to challenges to procedures -- it does not extend to the merits of a promotion decision"

See also Reilly, 12 F.Supp. at 140 (while “courts do sometimes review the actions of military agencies, the Court’s jurisdiction in this area is typically limited to challenges to procedures — it does not extend to the merits of a promotion decision”) (emphasis in original). In line with this caselaw, the Court concludes that the BOI acted in a similarly discretionary manner and rendered a recommendation on a non-justiciable personnel decision.

Army decision to discharge and other "underlying personnel actions" were "not reviewable"

Burt v. Winter, 503 F.Supp.2d 388, 390 (D.D.C.2007) (citing Piersall v. Winter, 435 F.3d 319, 321-22 (D.C.Cir.2006) (claims for retroactive promotion are non-justiciable)); Reilly v. Sec’y of the Navy, 12 F.Supp.3d 125,140 (D.D.C.2014) (merits of an individual military promotion not jus-ticiable); Caez v. United States, 815 F.Supp.2d 184, 188 n.4 (D.D.C.2011) (Army decision to discharge and other “underlying personnel actions” were “not reviewable”).


Context: Moreover, the fact that Nolasco was not present during the transfer of drugs to the officer is of little consequence to this analysis.

See Commonwealth v. Lafayette, 40 Mass.App.Ct. 534, 537, 665 N.E.2d 1025 (1996) (concluding that there is no need for a defendant to be present at the scene of a crime throughout its occurrence); cf. Commonwealth v. Carmenatty, 37 Mass. App.Ct. 908, 910, 638 N.E.2d 496 (1994) (holding that the fact that the defendant did not handle the drugs is not dispositive of his involvement in drug dealing).


Context: This evidence of controlled drug purchases on the subject site, a known informant's report of very recent drug activity on the premises, residents' efforts to bar police from the premises earlier on the day of the challenged search, and police observations of cash and drug paraphernalia on site shortly before seeking the challenged warrant easily admits a "fair probability that contraband or evidence of a crime" would be found on the premises.

Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. 2317; see United States v. Moreno, 701 F.3d 64, 74 (2d Cir.2012) (stating that “hasty retreat” into home on sight of police “manifests guilt and may, in appropriate circumstances, transform suspicion into probable cause”); United States v. Klump, 536 F.3d 113, 118 (2d Cir.2008) (stating that contraband or evidence of crime in plain view during “circumscribed search may be used to establish probable cause to obtain a warrant to conduct a broader search”); United States v. Perez, 144 F.3d 204, 208 (2d Cir.1998) (recognizing plastic baggies as packaging tools of drug trade); United States v. Wagner, 989 F.2d 69, 73 (2d Cir.1993) (recognizing controlled purchases as “powerful corroborative evidence” in determining probable cause); United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985) (concluding that large amounts of unexplained cash supported probable cause for search warrant); see also United States v. Allebach, 526 F.3d 385, 387 & n. 4 (8th Cir.2008) (holding that torn bag corners and steel wool, which can serve as crack pipe filter, support probable cause).

stating that "hasty retreat" into home on sight of police "manifests guilt and may, in appropriate circumstances, transform suspicion into probable cause"


stating that contraband or evidence of crime in plain view during "circumscribed search may be used to establish probable cause to obtain a warrant to conduct a broader search"


recognizing controlled purchases as "powerful corroborative evidence" in determining probable cause


concluding that large amounts of unexplained cash supported probable cause for search warrant


Context: Defendants also fail to specify whether such alleged refill-request forms were part of the six "broadcasts" at issue in Plaintiffs proposed class, or if those forms contained the same language required to be included in the proposed class. Defendants' argument thus again evokes the Seventh Circuit's declination to let defendants "derail legitimate class actions by conjuring up.. .insubstantial defenses unique to the class representative."

CE Design, 637 F.3d at 728; see Savanna Group, Inc. v. Trynex, Inc., 2013 WL 66181, at *9 (N.D. Ill. Jan. 4, 2013) (finding commonality and adequacy requirements met where there was no evidence to support consent defense); Hawkins v. Securitas Sec. Serv. USA Inc., 280 F.R.D. 388, 394 (N.D. Ill. 2011) (rejecting objection to adequacy based upon meritless defense); Manno v. Healthcare Revenue Recovery Group, LLC, 289 F.R.D. 674, 687-88 (S.D. Fla. 2013) (certifying class where asserted defense shared by putative class members — but not named plaintiff — was not viable); Meyer v. Portfolio Recovery Assoc., LLC, 707 F.3d 1036, 1042 (9th Cir. 2012) (certifying class where there was no evidence that named plaintiff or putative class members had consented to receiving communication); Silbaugh v. Viking Magazine Serv., 278 F.R.D. 389, 392-93 (N.D. Ohio 2012) (certifying class where there was no evidence that putative class members had expressly consented to receiving communication); cf. Johnson v. Yahoo!, Inc., 2016 WL 25711, at *4-5 (N.D. Ill. Jan. 4, 2016) (finding adequacy requirement not met where there was sufficient indication that plaintiff expressly consented to receiving communication).


certifying class where asserted defense shared by putative class members -- but not named plaintiff -- was not viable


certifying class where there was no evidence that named plaintiff or putative class members had consented to receiving communication


certifying class where there was no evidence that putative class members had expressly consented to receiving communication


Context: It is also well-recognized that, in almost any claim involving motive, a defendant's state of mind is typically established by circumstantial evidence because of the difficulty in obtaining direct evidence of motive. In criminal cases, for example, where the burden of proof is considerably higher than in a Bivens suit, this court and others have recognized that "[i]ntent may, and generally must, be proved circumstantially; normally, the natural probable consequences of an act may satisfactorily evidence the state of mind accompanying it." Nor does this court distinguish between direct and circumstantial evidence when evaluating the sufficiency of the evidence in a criminal ease.

ruling that "circumstantial evidence alone can sustain a guilty verdict and that to do so, circumstantial evidence need not remove every reasonable hypothesis except guilt"

United States v. Lam Kwong-Wah, 924 F.2d 298, 303 (D.C.Cir.1991) (“No distinction is made between direct and circumstantial evidence in evaluating the sufficiency of evidence supporting a guilty verdict.”), cert. denied, — U.S. -, 113 S.Ct. 287, 121 L.Ed.2d 213 (1992); see also United States v. Stone, 748 F.2d 361, 362 (6th Cir.1984) (ruling that “circumstantial evidence alone can sustain a guilty verdict and that to do so, circumstantial evidence need not remove every reasonable hypothesis except guilt”).

"No distinction is made between direct and circumstantial evidence in evaluating the sufficiency of evidence supporting a guilty verdict."


Context: Similarly, it is difficult to imagine non-investigatory documents eligible for withholding under Exemption 7(E) that could pass through the Exemption 7 threshold under the district court's interpretation. Thus, were we to deny the application of Exemption 7 to generalized law enforcement documents simply because the government could not link them to enforcement of a specific law, the additional protections that Congress provided to those very documents in Exemption 7(E) would be nullified. Indeed, we have implicitly adopted this approach by analyzing documents under Exemption 7(E) without questioning whether they were "compiled for law enforcement purposes."

upholding the FBI's withholding of documents containing law enforcement techniques for surveillance and credit searches under Exemption 7(E

See Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 777-78 (9th Cir. 2015) (upholding the FBI’s withholding of documents containing law enforcement techniques for surveillance and credit searches under Exemption 7(E)); see also ACLU of N. Cal. v. U.S. Dep’t of Justice, 880 F.3d 473, 2018 WL 455857 (9th Cir. Jan. 18, 2018) (analyzing a FOIA request for law enforcement techniques and guidelines under Exemption 7(E)).


Context: To be sure, a true claim of negligent supervision in this case might be a back-door attempt to raise a respondeat superior claim premised on an excepted act, as such claims typically depend on the employment relationship.

concluding that Fourth Circuit's pre-Sheridan decisions -- which barred negligent supervision claims premised on intentional acts of government employee -- continue to apply

Schweizer v. Keating, 150 F.Supp.2d 830, 843 (D.Md. 2001) (“Under Maryland law, liability for negligent supervision has arisen, almost exclusively, in cases involving master-servant relationships.”); see also Lilly v. United States, 141 F.Supp.2d 626, 629 (S.D.W.Va.2001) (concluding that Fourth Circuit’s pre-Sheridan decisions — which barred negligent supervision claims premised on intentional acts of government employee — continue to apply). But, contrary to the Government’s characterizations, the complaint in this case offers more than a negligent supervision claim.

"Under Maryland law, liability for negligent supervision has arisen, almost exclusively, in cases involving master-servant relationships."


Context: Under these cireumstances, we reject wife's premise that the time for filing the motion for review began to run on the date of mailing of the clarification. To preserve her right to appellate review, wife had to file the motion to review within fifteen days of the date of mailing of the operative order, which here was the November order.

See In re Marriage of Talbott, supra; In re Marriage of McCord, 910 P.2d 85, 88 (Colo.App.1995)(setting forth the time requirements under the prior rules for magistrates); cf. People v. Retallack, 804 P.2d 279, 279-80 (Colo.App.1990)(in a criminal case, a motion filed after entry of the order challenged on appeal did not extend the time for filing notice of appeal with respect to the challenged order).


Context: "Possibility is not enough." Evidence that disability " 'may be due' " to an industrial accident "is not sufficient."

Old Dominion Co. at 337, 141 S.E. at 134 (alleged causal connection between injury to a hand and palsy).

See also Eccon Company v. Lucas, 221 Va. 786, 273 S.E.2d 797 (1981) (alleged causal connection between injury to leg and cardiac arrest).


Context: The second factor has a bit more heft. A gesture (like a touching of the body) that might appear perfectly innocent to a casual onlooker (scratching oneself or feeling for a wallet, for example), depending on the setting and circumstances, may nonetheless appear suspect to an experienced officer.

See also United States v. Padilla, 548 F.3d 179, 187-188 (2d Cir.2008) (two men walking single-file behind a third off a sidewalk onto a dark wooded path at night appeared to be readying themselves for potential robbery or drug deal).

driver's slowing down, stiffening of posture, and failure to acknowledge a law enforcement officer in rural area combined with "methodical" waving to the officer by child passengers raised reasonable suspicion for an experienced border patrol agent

Arvizu, 534 U.S. at 275-276, 122 S.Ct. 744 (driver’s slowing down, stiffening of posture, and failure to acknowledge a law enforcement officer in rural area combined with “methodical” waving to the officer by child passengers raised reasonable suspicion for an experienced border patrol agent).


"It is simply not reasonable to infer that a driver is armed and dangerous because the officers believe that he appears nervous and reaches toward the car's console when approached by police, even in a high-crime neighborhood."

But cf. United States v. McKoy, 428 F.3d 38, 41 (1st Cir.2005) (“It is simply not reasonable to infer that a driver is armed and dangerous because the officers believe that he appears nervous and reaches toward the car’s console when approached by police, even in a high-crime neighborhood.”).


Context: The trial court granted the motion for directed verdict at the close of the plaintiff's evidence because "there is no evidence that this event is something of the kind that ordinarily doesn't occur in the absence of someone's negligence." Appellant argues that she met that burden here, citing several cases which hold that it is permissible to assume that if an escalator is used properly and an injury occurs, there is "something wrong in either the construction, maintenance, or operation of the escalator."

child's foot was caught in the escalator as she rode down

Sá-neme v. J.C. Penney Co., 17 Utah 2d 46, 404 P.2d 248, 250 (1965) (child’s foot was caught in the escalator as she rode down); see also Bell, supra note 3, 483 A.2d at 329 (woman fell after her sandal was caught in the escalator); J.C. Penney Co. v. Livingston, 271 S.W.2d 906, 908 (Ky.1954) (small boy’s hand was caught in an escalator). However, these cases are inapposite.


Context: In addition, the BIA has recognized that there are limitations in considering this .evidence of alleged criminality.

"In deciding whether an alien warrants a favorable exercise of discretion, the BIA may consider evidence of criminal conduct or other unbecoming behavior, regardless of whether that conduct led to or is reflected in a criminal conviction."

See, e.g., Henry v. I.N.S., 74 F.3d 1, 5-7 (1st Cir.1996) (upholding the BIA’s consideration of a 1992 arrest for allegedly assaulting a police officer, which the BIA considered but gave little weight, in denying the petitioner’s request for adjustment of status); Paredes-Urrestarazu v. I.N.S., 36 F.3d 801, 810 (9th Cir.1994) (“[W]e think that the breadth of the section 212(c) [discretionary] inquiry permits the Board to consider evidence of conduct that does not result in a conviction.”); Junkovic v. Moyer, No. 90-3749, 1991 WL 225803, at *3-4 (7th Cir. Nov. 4, 1991) (unpublished) (permitting consideration of “rap sheets” for “the sole purpose of determining whether discretion should be exercised”); Parcham v. I.N.S., 769 F.2d 1001, 1005 (4th Cir.1985) (“Evidence of an alien’s conduct, without a conviction, may be considered in denying the discretionary relief of voluntary departure.”); see also Shepherd v. U.S. Att’y Gen., 559 Fed.Appx. 837, 840 (11th Cir.2014) (per curiam) (“In deciding whether an alien warrants a favorable exercise of discretion, the BIA may consider evidence of criminal conduct or other unbecoming behavior, regardless of whether that conduct led to or is reflected in a criminal conviction.”); Carcamo v. U.S. Dep’t of Justice, 498 F.3d 94, 98 (2d Cir.2007) (“[PJolice reports and complaints, even if containing hearsay and not a part of the formal record of conviction, are appropriately admitted for the purposes of considering an application for discretionary relief.”).

upholding the BIA's consideration of a 1992 arrest for allegedly assaulting a police officer, which the BIA considered but gave little weight, in denying the petitioner's request for adjustment of status


"[PJolice reports and complaints, even if containing hearsay and not a part of the formal record of conviction, are appropriately admitted for the purposes of considering an application for discretionary relief."


"Evidence of an alien's conduct, without a conviction, may be considered in denying the discretionary relief of voluntary departure."


Context: The district court did not abuse its discretion in approving an attorney's fees award in the sum of 28% of the gross common fund recovery.

See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir.2002) (discussing the relevant factors and noting that 25% of common fund is a benchmark award); see also Powers v. Eichen, 229 F.3d 1249, 1258 (9th Cir.2000) (“We note that the choice of whether to base an attorneys’ fee award on either net or gross recovery should not make a difference so long as the end result is reasonable.”).

"We note that the choice of whether to base an attorneys' fee award on either net or gross recovery should not make a difference so long as the end result is reasonable."


Context: Since the challenged provisions here include a New Jersey Parole Board policy and sections of the administrative code, they are prison regulations and not statutes adopted through a legislative process. Therefore, Turner v. Safley sets out the appropriate standard for analyzing Plaintiffs' constitutional challenges.

Turner applies whenever "the needs of prison administration implicate constitutional rights"

See Washington v. Harper, 494 U.S. 210, 224, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990)(Turner applies whenever "the needs of prison administration implicate constitutional rights”); see also Overton v. Bazzetta, 539 U.S. 126, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003)(analyzing facial challenges to sections of Mich. Admin. Code under the Turner factors).


Context: The former requires Jessie to muster favorable, preponderant evidence of a majority or consensus view as to when a vaccine injury could occur at the earliest; the latter requires Jessie to show that a medically-aeceptable time-frame for the onset of his type of illness includes a twenty-four hour post-vaccination occurrence. That medically-aeceptable time-frame may be established by reliable opinion that does not perfectly match the dominant or consensus view in the medical community.

rejecting as too stringent a requirement of "confirmation of medical plausibility from the medical community and literature"

See Althen, 418 F.3d at 1279 (rejecting as too stringent a requirement of “confirmation of medical plausibility from the medical community and literature”); see also Simanski v. Sec’y of Health & Human Servs., 671 F.3d 1368, 1384 (Fed.Cir.2012) (holding that the petitioner’s expert in that case had created a material issue of fact as to whether an earlier onset of the disease than that generally accepted in the medical literature was “ ‘medically acceptable’” (quoting de Bazan, 539 F.3d at 1352)). By crafting a heightened standard for Althen prong three, the special master erred as a matter of law.

holding that the petitioner's expert in that case had created a material issue of fact as to whether an earlier onset of the disease than that generally accepted in the medical literature was " 'medically acceptable'" (quoting de Bazan, 539 F.3d at 1352


Context: Capshaw had no reasonable expectation of privacy in these Sprint Nextel records. Regardless of any subjective expectation (about which we have no evidence), it was unreasonable for Capshaw to assume that information about his cell phone calls could not be made available to the government by the third-party telephone company.

See id. at 744, 99 S.Ct. at 2582. (“When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business.”); see also Rehberg v. Paulk, 611 F.3d 828, 843 (11th Cir.2010) (holding that defendant lacked reasonable expectation of privacy in phone and fax numbers dialed).

"When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and 'exposed' that information to its equipment in the ordinary course of business."


Context: Norwest Leasing further argues that even if it had not already incurred response costs that it would have standing to seek a declaration adjudicating the parties' rights and responsibilities with respect to the contamination of the property. It argues that declaratory relief is appropriate at this time because it is undisputed that there is pollution on the property which one or more of the parties will be required to remove or otherwise remediate and that the court may properly determine who is responsible for those costs before they are incurred.

See Gopher Oil Co. v. Union Oil Co., 757 F.Supp. 988, 994 (D.Minn.1990) (Gopher Oil I) (allocating responsibility for future costs of investigating and cleaning up a site under CERCLA and MERLA), aff'd and remanded in part on other grounds, 955 F.2d 519 (8th Cir.1992); cf. Caldwell v. Gurley Refining Co., 755 F.2d 645, 650 (8th Cir.1985) (party could properly seek declaration concerning potential liability for clean up costs and penalties arising from an oil spill that had been cleaned up by government). Norwest Financial thus seeks a declaration of its potential liability for pollution at the site before it attempts to foreclose or incur other liability for clean up costs.


Context: Even so, these factual allegations do not plausibly give rise to a scenario in which MetLife's conduct was extreme and outrageous. Courts have found that defendants can act unreasonably without acting in an extreme and outrageous manner.

finding that while defendant's seven phone calls to the plaintiff may have been unreasonable and abusive, they were not extreme and outrageous

See Gable v. Curtis, 673 N.E.2d 805, 810-11 (Ind.Ct.App.1996) (finding that while defendant’s seven phone calls to the plaintiff may have been unreasonable and abusive, they were not extreme and outrageous).

finding that while American Airlines may have "bizarrely" and possibly improperly barred plaintiffs from boarding a plane for which they had tickets and allowing a breach of contract claim to go forward, plaintiffs' claim of intentional infliction of emotional distress claim should be dismissed because the airlines' behavior did not exceed all possible bounds of decency

Cf. Karkomi v. Am. Airlines, 717 F.Supp. 1340, 1345 (N.D.Ill.1989) (finding that while American Airlines may have “bizarrely” and possibly improperly barred plaintiffs from boarding a plane for which they had tickets and allowing a breach of contract claim to go forward, plaintiffs’ claim of intentional infliction of emotional distress claim should be dismissed because the airlines’ behavior did not exceed all possible bounds of decency). Therefore, MetLife’s motion to dismiss Linda’s claim for intentional infliction of emotional distress pursuant to RULE 12(b)(6) is GRANTED.


Context: Whether the images fall neatly into the definition of sexual behavior or sexual predisposition is ultimately besides the point because I have the discretion under Rule 26 to balance defendant's need for the images against plaintiffs valid privacy concerns.

though Rule 26 "contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule."

Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n. 21, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (though Rule 26 “contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule.”).

under Rule 26 it is "appropriate for the court [to] exercise[e] its discretion ... to undertake some substantive balancing of interests"

See Laxalt, 809 F.2d at 890 (under Rule 26 it is “appropriate for the court [to] exercise[e] its discretion ... to undertake some substantive balancing of interests”). See also Burka v. U.S. Dep’t of Health and Human Servs., 87 F.3d 508, 517 (D.C.Cir.1996) (balancing “the requester’s need for the information from this particular source, its relevance to the litigation at hand ... and the harm which disclosure would cause to the party seeking to protect the information”).


Context: Mr. Vinella's testimony likewise will be excluded to the extent' he concludes that Defendants' conduct breached certain legal or contractual duties, because this testimony reaches beyond merely addressing an ultimate issue, and instead constitutes an inadmissible legal opinion.

finding that an expert could not testify concerning whether the plaintiff "complied with legal duties" under the securities law

See Berckeley Inv. Grp., 455 F.3d at 218 (finding that an expert could not testify concerning whether the plaintiff “complied with legal duties” under the securities law); see also Wolfe, 881 F.Supp.2d at 661-62 (excluding expert testimony concerning whether the defendant acted negligent on the grounds that such testimony amounted to an impermissible legal opinion).


Context: . In determining whether a deprivation was sufficiently serious, a court must look at the totality of the conditions affecting an inmate. The Supreme Court has indicated that conditions of confinement, "alone, or in combination, may deprive inmates of the minimal civilized measure of life's necessities."

Rhodes, 452 U.S. at 347, 101 S.Ct. at 2499 (emphasis added); See Union County Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1600, 80 L.Ed.2d 130 (1984) ("The totality of circumstances relevant to this inquiry comprises all those circumstances that bear on the nature of the [food, clothing, shelter, sanitation, medical care, or protection] afforded to sentenced inmates."); but see contra Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir.1982) (restricting the totality of circumstances approach to specific conditions of confinement). In Young's case, we find that the totality of the conditions of his imprisonment, namely the protection and sanitation afforded to him, are sufficiently serious to satisfy the objective component of the Wilson Eighth Amendment analysis.


Context: The cases cited by the majority do not support the conclusion that appellant's consent to a search of his person necessarily included consent to a search of the bag of socks. As the majority concedes, this issue is one of first impression in Virginia, and even the cases from other jurisdictions upon which the majority relies involved construction "of the term 'person' in the context of [ (1)] searching 'the person' pursuant to a warrant" for that person or (2) searching the belongings of a nonresident visitor pursuant to a warrant for the premises on which the person was found.

noting premises warrant did not validate search of shoulder bag in possession of person who arrived on premises after search had begun but that "such personal items as [a] shoulder bag" or "a wallet and paper bag, passed by one occupant of the residence to the other," "may, in some circumstances, be found to be within the ambit of a premises search warrant"

See United States v. Graham, 638 F.2d 1111, 1114 (7th Cir.1981) (holding that “a shoulder purse carried by a person at the time he is stopped lies within the scope of a warrant authorizing the search of his person”); see also United States v. Branch, 545 F.2d 177, 182-83 (D.C.Cir.1976) (noting premises warrant did not validate search of shoulder bag in possession of person who arrived on premises after search had begun but that “such personal items as [a] shoulder bag” or “a wallet and paper bag, passed by one occupant of the residence to the other,” “may, in some circumstances, be found to be within the ambit of a premises search warrant”); United States v. Robertson, 833 F.2d 777, 778, 784 (9th Cir.1987) (applying principle that containers closely associated with one’s person require warrant specifically authorizing their search to invalidate search of backpack carried by defendant, who was leaving house when officers arrived to execute arrest warrant for a third party, where premises warrant police secured after seizing defendant’s backpack did not specifically authorize search of defendant or her backpack); State v. Wynne, 552 N.W.2d 218, 220 (Minn.1996) (relying on Graham to invalidate search of purse taken from person arriving outside residence for which police had premises warrant after search already had commenced); State v. Andrews, 201 Wis.2d 383, 549 N.W.2d 210, 215-16, 218 (1996) (relying in part on Graham to hold that police executing premises warrant may not search items “worn by or in the physical possession of persons whose search is not authorized by the warrant” (footnote omitted)); Hayes v. State, 141 Ga.App. 706, 234 S.E.2d 360, 361-62 (1977) (holding search of suitcase found next to man sleeping on couch was unconstitutional where officers had warrant for particular apartment and its occupant and failed, prior to search, to take reasonable steps to determine whether suitcase belonged to occupant named in warrant or to nonresident visitor).

holding that "a shoulder purse carried by a person at the time he is stopped lies within the scope of a warrant authorizing the search of his person"


applying principle that containers closely associated with one's person require warrant specifically authorizing their search to invalidate search of backpack carried by defendant, who was leaving house when officers arrived to execute arrest warrant for a third party, where premises warrant police secured after seizing defendant's backpack did not specifically authorize search of defendant or her backpack


relying on Graham to invalidate search of purse taken from person arriving outside residence for which police had premises warrant after search already had commenced


holding search of suitcase found next to man sleeping on couch was unconstitutional where officers had warrant for particular apartment and its occupant and failed, prior to search, to take reasonable steps to determine whether suitcase belonged to occupant named in warrant or to nonresident visitor


Context: In addition, the chronology also set forth evidence from patent, trademark and copyright registrations indicating that even the United States Patent and Trademark Office and the United States Copyright Office have come to recognize the term as signifying a type of technology in the semiconductor industry. Thus, the overwhelming evidence in this case obviates the need for ST to have conducted a consumer survey.

district court's grant of summary judgment on issue of genericness without survey affirmed by appellate court

See, e.g., Liquid Controls, 802 F.2d 934 at 941 (district court’s grant of summary judgment on issue of genericness without survey affirmed by appellate court); see also Barrios v. American Thermal Instruments, Inc., 712 F.Supp. 611, 614 (S.D.Ohio 1988) (consumer survey not necessary and “dictionaries, newspapers, and other publications may be used to establish that a term is generic”); Suh v. Yang, 987 F.Supp. 783, 791, n. 4 (N.D.Cal.1997) (surveys “de rigeur,” but not required; summary judgment without survey granted); Expoconsul International, Inc., v. A/E Systems, Inc., 755 F.Supp. 1237, 1247 (S.D.N.Y.1991) (same).

consumer survey not necessary and "dictionaries, newspapers, and other publications may be used to establish that a term is generic"


Context: As a general proposition, where a statement relating to a startling event does not immediately follow that event, there is a strong presumption against admissibility under M.R.E. 803(2).

See id. (acknowledging that children may stay excited longer than adults); Arnold, 25 M.J. at 132 (statement of 16-year-old rape victim held admissible despite at least a 12-hour lapse between the rape and the statement); United States v. Farley, 992 F.2d 1122, 1126 (10th Cir.1993)(admitting statements of five-year old though one statement was made two hours after the assault and the other at least 12 hours after the assault); Morgan, 846 F.2d at 947 (finding that a four-year old’s three-hour lapse in reporting an assault was “well within the bounds of reasonableness” for an excited utterance); Gross v. Greer, 773 F.2d 116,119-20 (7th Cir.1985)(holding that a lower court properly admitted a four-year old’s hearsay statement although she made it 12-15 hours after the startling event); Iron Shell, 633 F.2d at 86 (admitting statement of nine-year-old victim as an excited utterance although she made the statement one hour after the assault); but see Thalacker, 198 F.3d at 1062 (questioning the rationale for applying the excited utterance exception differently for children and adults).


admitting statements of five-year old though one statement was made two hours after the assault and the other at least 12 hours after the assault


finding that a four-year old's three-hour lapse in reporting an assault was "well within the bounds of reasonableness" for an excited utterance


holding that a lower court properly admitted a four-year old's hearsay statement although she made it 12-15 hours after the startling event


admitting statement of nine-year-old victim as an excited utterance although she made the statement one hour after the assault


Context: Having stated the above, I am satisfied that the State has established the "necessity" for a wiretap, i.e., the State has established that "normal" investigative techniques had failed or were likely to fail or too dangerous to employ. I am also mindful that I must pay "great deference" to Judge Bifferato in this determination.

in wiretap context court gives "substantial deference to the determination of the issuing judge"

Jensen v. State, Del.Supr., 482 A.2d 105, 111 (1984) (determination of probable cause by issuing Judge “will be paid great deference by a reviewing court and will not be invalidated by a hypertechnical” interpretation) (citations omitted); see also United States v. Zambrana, 841 F.2d 1320, 1330 (7th Cir.1988) quoting United States v. Brown, 761 F.2d 1272 (9th Cir.1985) (in wiretap context court gives “substantial deference to the determination of the issuing judge”); United States v. Leisure, 844 F.2d 1347, 1354-55 (8th Cir.1988), cert. denied, 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 342 (1988).

determination of probable cause by issuing Judge "will be paid great deference by a reviewing court and will not be invalidated by a hypertechnical" interpretation


Context: The majority of courts, however, require reliance, a requirement that seems eminently sensible. See, e.g., Chisolm v. TranSouth Finan.

holding that in the context of mail and wire fraud, a "plaintiff must have justifiably relied, to his detriment, on the defendant's material misrepresentations"

Corp., 95 F.3d 331, 337 (4th Cir.1996) (holding that in the context of mail and wire fraud, a "plaintiff must have justifiably relied, to his detriment, on the defendant's material misrepresentations”); Central Distributors of Beer, Inc. v. Connecticut, 5 F.3d 181, 184 (6th Cir.1993) ("[Plaintiff] cannot maintain a civil RICO claim against these defendants absent evidence that the defendants made misrepresentations or omissions of material fact to [plaintiff] and evidence that [plaintiff] relied on those misrepresentations or omissions to its detriment.”), cert. denied, 512 U.S. 1207, 114 S.Ct. 2678, 129 L.Ed.2d 812 (1994); Metromedia Co. v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992) (noting that "[i]n the context of an alleged RICO predicate act of mail fraud, we have stated that to establish the required causal connection, the plaintiff was required to demonstrate that the defendant's misrepresentations were relied on[]”), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993); Pelletier v. Zweifel, 921 F.2d 1465, 1499-1500 (11th Cir.1991) ("when the alleged predicate act is mail or wire fraud, the plain tiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme.”), cert. denied, 502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991); Curatola v. Ruvolo, 949 F.Supp. 223, 225 (S.D.N.Y.1997) (“When mail fraud is pled as a RICO predicate act, to establish the required causal connection a plaintiff must show reliance on the defendant’s misrepresentations and injuries caused by that reliance.”); but see Akin v. QL Investments, Inc., 959 F.2d 521, 533 (5th Cir.1992) ("Plaintiffs' problems of proof with respect to securities fraud do not necessarily haunt their claim of mail fraud [as a RICO predicate act] since reliance is not an element of mail fraud.”); Prudential Ins. Co. of America v. United States Gypsum Co., 828 F.Supp. 287, 294 (D.N.J.1993) ("declining] to read into RICO mail fraud cases a requirement of actual detrimental reasonable reliance”); Sebago, Inc. v. Beazer East, Inc., 18 F.Supp.2d 70, at 82 (D.Mass.l998)(same).

"Plaintiffs' problems of proof with respect to securities fraud do not necessarily haunt their claim of mail fraud [as a RICO predicate act] since reliance is not an element of mail fraud."


"declining] to read into RICO mail fraud cases a requirement of actual detrimental reasonable reliance"


"when the alleged predicate act is mail or wire fraud, the plain tiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme."


"When mail fraud is pled as a RICO predicate act, to establish the required causal connection a plaintiff must show reliance on the defendant's misrepresentations and injuries caused by that reliance."


Context: Furthermore, the district court's error may have caused Defendant to go to prison for longer than she thought possible for the crime she committed. Thus, the court's error affects Defendant's substantial rights.

holding that "the failure to notify the defendant of the term of supervised release and its possible effect on his sentence was not harmless error" where "[njothing in the record suggests that the defendant understood that his sentence would include supervised release [and][t]here was no written plea agreement by which he might have been warned"

See, e.g., Syal, 963 F.2d at 906 (holding that “the failure to notify the defendant of the term of supervised release and its possible effect on his sentence was not harmless error” where “[njothing in the record suggests that the defendant understood that his sentence would include supervised release [and][t]here was no written plea agreement by which he might have been warned”); United States v. Walsh, 733 F.2d 31, 34 (6th Cir.1984) (finding that the defendant “suffered identifiable prejudice because the sentence imposed exceeded the maximum sentence he was promised he would receive”).

holding that court's failure to tell defendant in Rule 11 plea hearing that he faced a mandatory period of supervised release was harmless error because the defendant was on notice of the supervised release requirement set out in the plea agreement and the defendant did not claim he was unaware of the requirement, only that court technically had failed to comply with requirements of rule

Cf. United States v. Williams, 899 F.2d 1526, 1531 (6th Cir.1990) (holding that court’s failure to tell defendant in Rule 11 plea hearing that he faced a mandatory period of supervised release was harmless error because the defendant was on notice of the supervised release requirement set out in the plea agreement and the defendant did not claim he was unaware of the requirement, only that court technically had failed to comply with requirements of rule).


finding that the defendant "suffered identifiable prejudice because the sentence imposed exceeded the maximum sentence he was promised he would receive"


Context: Here, Defendant insists that Plaintiffs' marks are merely descriptive, as they are indisputably derived from the Latin word "Rex," meaning "king," and the prefix "el," referring to "electrical" supplies. (See Pls.' Resp. to Separate Stmt, of Undisputed Material Facts P 11.) Specifically, Defendant maintains that, because the meaning which can be ultimately extrapolated from this combination is "King of Electrical Suppliers," the marks are "laudatory."

"Marks that are laudatory and that describe the alleged qualities or characteristics of a product or service are descriptive marks."

See, e.g., In re Nett Designs, 236 F.3d 1339, 1341 (Fed.Cir.2001) (“Laudatory marks that describe the alleged merit of the goods are descriptive because they simply describe the characteristics or quality of the goods in a condensed form.”); see also Murphy v. Provident Mut. Life Ins. Co., 923 F.2d 923, 927 (2d Cir.1990) (“Marks that are laudatory and that describe the alleged qualities or characteristics of a product or service are descriptive marks.”).

"Laudatory marks that describe the alleged merit of the goods are descriptive because they simply describe the characteristics or quality of the goods in a condensed form."


Context: Addressing the temporal proximity, the plaintiff sent the November 2006 letter two months before Ridgely proposed the plaintiffs termination. Def.'s Reply at 21. This district has varied as to whether two months is sufficient to establish a causal connection.

holding that a two month period "might be enough ... to prove the causation prong"

See Edwards v. Envtl. Prot. Agency, 456 F.Supp.2d 72, 92 (D.D.C.2006) (concluding that a two-month gap is not sufficient to establish temporal proximity); Baker v. Potter, 294 F.Supp.2d 33, 41 (D.D.C.2003) (same); but see Sewell v. Chao, 532 F.Supp.2d 126, 139 (D.D.C.2008) (holding that a two month period “might be enough ... to prove the causation prong”); Buggs v. Powell, 293 F.Supp.2d 135, 149 (D.D.C.2003) (stating a two month span “is sufficiently temporal in proximity to give rise to an inference of discrimination”). Given the totality of the circumstances in this case, the court concludes that the plaintiff has established a causal connection.


stating a two month span "is sufficiently temporal in proximity to give rise to an inference of discrimination"


Context: Indeed, when a defendant contacts putative class members for the purpose of altering the status of a pending litigation, such communication is improper without judicial authorization.

noting that defendant's communications affecting a class member's decision to participate in the litigation are improper

See Hampton Hardware, 156 F.R.D. at 632 (noting that defendant’s communications affecting a class member’s decision to participate in the litigation are improper); see also In re Sch. Asbestos, 842 F.2d at 682 n. 23 (listing cases where defendants “sought either to affect class members’ decisions to participate in the litigation or to undermine class plaintiffs’ cooperation with or confidence in class counsel”).

listing cases where defendants "sought either to affect class members' decisions to participate in the litigation or to undermine class plaintiffs' cooperation with or confidence in class counsel"


Context: Some courts have rejected similar claims. The Fourth Circuit held, "This argument ... is not cognizable as a claim of actual innocence."

"[E]ven if the actual innocence exception were to extend to the noncapital sentencing context ... this exception would not apply to [petitioner's] claim of legal innocence and thus could not excuse his procedural default."

See also McKay, 657 F.3d at 1199 (“[E]ven if the actual innocence exception were to extend to the noncapital sentencing context ... this exception would not apply to [petitioner’s] claim of legal innocence and thus could not excuse his procedural default.”); Berry v. United States, 468 Fed.Appx. 924, 925-26 (11th Cir.2012) (rejecting actual innocence argument in § 2255 petition where petitioner Berry did not claim to be actually innocent of the crime for which he was sentenced or innocent of the predicate crimes); Damon v. United States, 2012 WL 6216868, at *8-11, 2012 U.S. Dist. LEXIS 176484, at *24-30 (D.Me.

holding that SS 2255 movant claiming his prior conviction for assault was not a "violent felony" did not qualify for actual innocence exception

Pettiford, 612 F.3d at 284 (holding that § 2255 movant claiming his prior conviction for assault was not a “violent felony” did not qualify for actual innocence exception).


rejecting actual innocence argument in SS 2255 petition where petitioner Berry did not claim to be actually innocent of the crime for which he was sentenced or innocent of the predicate crimes


Context: The district court found that Widgery deliberately failed to pursue his appeals from the denials of his second and third motions for new trial.

"the SS 2255 court may in a proper case deny relief to a federal prisoner who has deliberately bypassed the orderly federal procedures provided * * * by way of appeal"

See Kaufman, 394 U.S. at 227 n. 8, 89 S.Ct. 1074 n. 8 (“the § 2255 court may in a proper case deny relief to a federal prisoner who has deliberately bypassed the orderly federal procedures provided * * * by way of appeal”); see also Little, 608 F.2d at 300. Because of this finding, we need not address whether Widgery must meet the cause and prejudice standard outlined in United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982).

See Morris v. United States, 687 F.2d 899, 904 (7th Cir.1982) (cause and prejudice standard is applicable in determining whether an issue not raised on direct appeal can be challenged in a 2255 proceeding); see also Earley, 746 F.2d at 415 (circumstances of case render unnecessary a determination of whether the Frady standard applies if defendant fails to raise an issue on direct appeal); United States v. Auerbach, 745 F.2d 1157, 1160 (8th Cir.1984) (issue of whether cause. and prejudice standard should apply if defendant fails to raise issue on direct appeal will not be considered because the government did not raise the issue below).


issue of whether cause. and prejudice standard should apply if defendant fails to raise issue on direct appeal will not be considered because the government did not raise the issue below


But see Diggs v. United States, 740 F.2d 239, 243-45 (3d Cir.1984) (rejecting the Norris application of the cause and prejudice standard to a failure to appeal).


cause and prejudice standard is applicable in determining whether an issue not raised on direct appeal can be challenged in a 2255 proceeding


Context: We do not think it necessary to provide an intricate rationalization for the existence of a specific congressional exclusion for certain types of income and the absence of an exclusion for student benefits. We simply note that other cases have held various benefits for which Congress had not provided a specific exclusion, not to be deemed "available income" for purposes of determining eligibility and level of AFDC payments.

See, e.g., Snider v. Creasy, 728 F.2d 369 (6th Cir.1984); Cunningham v. Toan, 728 F.2d 1101 (8th Cir.1984); Riddick v. D’Elia, 626 F.2d 1084 (2d Cir.1980) (OASDI benefits paid to mother’s representative payee); Turchin v. Butz, 405 F.Supp. 1263 (D.Minn.1976) (Minnesota non-WIN training allowance); Elam v. Hanson, 384 F.Supp. 549 (N.D.Ohio 1974) (OASDI extended student benefits paid to full-time students between ages of 18 and 22); but see Sturgell v. Creasy, 640 F.2d 843 (6th Cir.1981) (veteran’s nonservice-connected VA disability pension); Bosh v. Fahey, 53 N.Y.2d 896, 423 N.E.2d 49, 440 N.Y.S.2d 626 (1981) (OASDI extended student benefits paid to full-time students between ages of 18 and 22).