Context: More importantly, the officers in Ward asked the defendant "focused, potentially incriminating questions" which would "heighten" the feeling that the person "was the specific object of the officers' inquiry," and lead a reasonable person to believe that he or she was less able to terminate the encounter.

But see McKines, 933 F.2d at 1418 (informing defendant that he is focus of narcotics investigation does not predict a seizure); Wilson, 895 F.2d at 170-71 (defendant was not seized when approached in airport terminal by officer who requested identification and asked whether he was carrying drugs).

officer's statement that defendant exhibited characteristics of drug trafficker could lead defendant to reasonably believe that he was particular focus of narcotics investigation and not free to leave

Id. at 1532. See also United States v. White, 890 F.2d 1413, 1416 (8th Cir.1989) (officer’s statement that defendant exhibited characteristics of drug trafficker could lead defendant to reasonably believe that he was particular focus of narcotics investigation and not free to leave), cert. denied, — U.S. -, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990); United States v. Savage, 889 F.2d 1113, 1115, 1117 (D.C.Cir.1989) (encounter in train roomette became seizure when officers’ questions became “direct and probably forceful”); United States v. Nunley, 873 F.2d 182, 184-85 (8th Cir.1989) (consensual encounter became seizure when officer explained that his purpose was to stop the flow of drugs through the airport); United States v. Gonzales, 842 F.2d 748, 752 (5th Cir.1988) (defendant was seized when officer stated that he was “working narcotics” and requested to look in her bag), overruled on other grounds by United States v. Hurtado, 905 F.2d 74 (5th Cir.1990) (en banc); United States v. Borys, 766 F.2d 304, 311 (7th Cir.1985) (consensual questioning ripened into investigative stop when agents explained that they suspected defendant of transporting drugs), cert. denied, 474 U.S. 1082, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986); United States v. Berry, 670 F.2d 583, 597 (5th Cir.1982) (en banc) (officer’s intimation that investigation had focused on individual could induce reasonable person to believe that failure to cooperate would lead to formal detention).


defendant was not seized when approached in airport terminal by officer who requested identification and asked whether he was carrying drugs


encounter in train roomette became seizure when officers' questions became "direct and probably forceful"


consensual encounter became seizure when officer explained that his purpose was to stop the flow of drugs through the airport


defendant was seized when officer stated that he was "working narcotics" and requested to look in her bag


consensual questioning ripened into investigative stop when agents explained that they suspected defendant of transporting drugs


officer's intimation that investigation had focused on individual could induce reasonable person to believe that failure to cooperate would lead to formal detention


Context: To secure a new trial, however, it is not sufficient for the moving party to show that the district court made a mistake in admitting certain testimony or by using improper jury instructions. A motion for a new trial "will not be granted unless the moving party suffered prejudice."

Field v. Trigg Cnty. Hosp. Inc., 386 F.3d 729, 736 (6th Cir.2004) (applying the harmless error standard to the improper admission of evidence); see Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994) (“An erroneous [jury] instruction, unless harmless, requires a new trial.”).

"An erroneous [jury] instruction, unless harmless, requires a new trial."


Context: For example, if a witness testified in this case that he had seen appellant reach out, grab Autumn's hand, and burn her palm with a lit cigarette two days before the group came to the hospital, this testimony (and any pictures showing Autumn's palm with a cigarette burn) would clearly be relevant as tending to show that it was appellant, not Crystal, who burned Christopher's palm. To prove identity in this context, the two acts must be so distinctively similar as to constitute a "signature" act.

prior murder committed ten days before capital murder was sufficiently similar to be a "signature crime"

See Beets v. State, 767 S.W.2d 711, 740-41 (Tex.Crim.App.1987) (noting the defendant's “signature” use of the same weapon, motive, time, and means of disposing of bodies, in two different murders); see also Taylor v. State, 920 S.W.2d 319, 322 (Tex.Crim.App.1996) (prior murder committed ten days before capital murder was sufficiently similar to be a “signature crime”).

noting the defendant's "signature" use of the same weapon, motive, time, and means of disposing of bodies, in two different murders


Context: The parties appear to be in agreement and the Court finds that, because Church's is a Texas corporation and the adoption of the poison pill occurred in Texas, Texas law applies to these cases.

Texas law applied to determination of validity of Texas corporation's directors' adoption of anti-takeover measure

State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 230, cert. denied, 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1074 (1958) (“questions of substantive law are controlled by the laws of the state where the cause of action arose”); Morris v. LTV Corp., 725 F.2d 1024, 1027 (5th Cir.1984); see Gearhart Indus., Inc. v. Smith Int’l, Inc., 741 F.2d 707 (5th Cir.1984) (Texas law applied to determination of validity of Texas corporation’s directors’ adoption of anti-takeover measure).

"questions of substantive law are controlled by the laws of the state where the cause of action arose"


Context: Our insistence on a full explanation is not the caprice of one crotchety circuit. See, e.g., M.P.C.

Plating, Inc. v. NLRB, 912 F.2d 883, 888-89 (6th Cir.1990) (remanding with instructions not to issue bargaining order where Board failed to provide requisite analysis); Montgomery Ward & Co. v. NLRB, 904 F.2d 1156,1159-60 (7th Cir.1990) (remanding where Board failed to explain why traditional remedies would be inadequate); NLRB v. American Spring Bed Mfg. Co., 670 F.2d 1236, 1247-49 (1st Cir.1982) (remanding with instructions to hold election where Board failed to explain why fair election was unlikely); see also NLRB v. Pace Oldsmobile, Inc., 739 F.2d 108, 111-12 (2d Cir.1984) (vacating bargaining order without remand where Board provided only conclusory analysis); NLRB v. Apple Tree Chevrolet, Inc., 671 F.2d 838, 841-42 (4th Cir.1982) (same); NLRB v. Gibson Prods. Co., 494 F.2d 762, 766-70 (5th Cir.1974) (same); T. Kheel, Labor Law § 15.05, at 15.41 n. 14 (1989) (citing additional cases).


remanding where Board failed to explain why traditional remedies would be inadequate


remanding with instructions to hold election where Board failed to explain why fair election was unlikely


Context: Intoxication is one factor to be considered by the trial court in determining vol-untariness and validity of a waiver of Miranda rights. However, intoxication alone does not invalidate a knowing, intelligent, and voluntary waiver.

Cf. Ballay v. People, 160 Colo. 309, 419 P.2d 446 (1966)(statements were not inadmissible merely because defendant was intoxicated when he made them).

See People v. Veloz, 946 P.2d 525 (Colo.App.1997)(finding that intoxicated defendant was properly advised of his rights and made statements voluntarily); State v. Trihou, 488 A.2d 472 (Me.1985)(al-though defendant had been drinking and smoking marijuana on day of incident, he was not intoxicated and was able to understand and voluntarily to waive his rights); State v. Finson, 447 A.2d 788 (Me.1982)(even a person heavily intoxicated is not necessarily incapable of waiving constitutional rights).


al-though defendant had been drinking and smoking marijuana on day of incident, he was not intoxicated and was able to understand and voluntarily to waive his rights


even a person heavily intoxicated is not necessarily incapable of waiving constitutional rights


Context: Neither the record nor Mr. Anderson suggests how his purported rebuttal witnesses would have testified or how they could have changed the result in this case. Accordingly, we cannot conclude that Mr. Anderson's trial counsel rendered ineffective assistance by failing to call these unnamed witnesses.

indicating that self-serving speculation concerning putative witness' testimony will not sustain ineffective assistance claim

See, e.g., United States v. Jackson, 33 F.3d 866, 875 (7th Cir.1994) (rejecting ineffective assistance claim based upon trial counsel’s failure to call witnesses at trial where record did not indicate how witnesses would have testified and noting that such claims are properly raised under 28 U.S.C. § 2255) (collecting cases), cert. denied, — U.S. -, 115 S.Ct. 1316, 131 L.Ed.2d 197 (1995); United States v. Ellis, 23 F.3d 1268, 1274 (7th Cir.1994) (same); see also United States v. Ashimi, 932 F.2d 643, 650 (7th Cir.1991) (indicating that self-serving speculation concerning putative witness’ testimony will not sustain ineffective assistance claim).

rejecting ineffective assistance claim based upon trial counsel's failure to call witnesses at trial where record did not indicate how witnesses would have testified and noting that such claims are properly raised under 28 U.S.C. SS 2255


Context: The two should not be equated. Otherwise, a party could always meet this element in a malicious prosecution suit any time an underlying suit is not reinstated before the statute of limitations tolls, an event that has no relation to the merits of the underlying suit or the circumstances surrounding the dismissal itself. A successful claim for malicious prosecution has to require more.

See Wong, 772 P.2d at 699 (voluntary dismissal without prejudice in combination with running of statute of limitations did not satisfy requirement of favorable termination as statute-of-limitations bar did not reflect on merits of claim); see also Palmer Dev. Corp. v. Gordon, 723 A.2d 881, 884 (Me. 1999) (dismissal on statute-of-limitations grounds does not constitute a favorable termination for purposes of malicious prosecution), and cases cited therein.


Context: Between 1999 and 2001, four Courts of Appeals sustained the validity of the CPPA.

"While the Ninth Circuit found the CPPA invalid on its face, four other Courts of Appeals have sustained it."

See United States v. Fox, 248 F.3d 394, 406 (5th Cir.2001) (“We hold that [the CPPA] is not unconstitutionally over-broad.”); United States v. Mento, 231 F.3d 912, 923 (4th Cir.2000) (“We hold that the CPPA does not impermissibly regulate protected speech and does not, therefore, offend the First Amendment.”); United States v. Acheson, 195 F.3d 645, 652 (11th Cir.1999) (“Given the lack of any substantial overbreadth in light of the statute’s legitimate sweep, the CPPA withstands this constitutional challenge.”); United States v. Hilton, 167 F.3d 61, 74 (1st Cir.), cert. denied, 528 U.S. 844, 120 S.Ct. 115, 145 L.Ed.2d 98 (1999) (“We conclude, therefore, that the CPPA.is not unconstitutionally overbroad.”); see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244,122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (“While the Ninth Circuit found the CPPA invalid on its face, four other Courts of Appeals have sustained it.”).

"We hold that the CPPA does not impermissibly regulate protected speech and does not, therefore, offend the First Amendment."


"Given the lack of any substantial overbreadth in light of the statute's legitimate sweep, the CPPA withstands this constitutional challenge."


Context: However, the trial court did not have the authority to modify or change custody of the children based upon appellant's failure to encourage or implement regular visitation.

"the children of a dissolved marriage are not pawns whose custody may be used for the punishment of a wrongdoer"

Culberson v. Culberson (1978), 60 Ohio App.2d 304, 306, 14 O.O.3d 265, 267, 397 N.E.2d 1226, 1228 (“the children of a dissolved marriage are not pawns whose custody may be used for the punishment of a wrongdoer”); cf. Andrulis v. Andrulis (1985), 26 Ohio App.3d 164, 166, 26 OBR 383, 384, 498 N.E.2d 1380, 1381-1382 (court’s modification of visitation and support orders exceeded the authority of the court for punishment and contempt).

court's modification of visitation and support orders exceeded the authority of the court for punishment and contempt


Context: But they are wrong to do so. The District Court indisputably had subject-matter jurisdiction over the plaintiffs' suit and that suit had not yet been dismissed when the defendants sought to enforce the settlement agreement that they claimed had been reached. Thus, if the District Court correctly concluded that the parties had reached a final, oral settlement agreement, the District Court had subject-matter jurisdiction to enforce it when it purported to do so. Kokkonen does not block a district court from enforcing a settlement agreement before the underlying suit has been dismissed.

"If ... the settlement collapses before the original suit is dismissed, the party who seeks to keep the settlement intact may file a motion for enforcement."

See Malave v. Carney Hosp., 170 F.3d 217, 220 (1st Cir.1999) (“If ... the settlement collapses before the original suit is dismissed, the party who seeks to keep the settlement intact may file a motion for enforcement.”); see also Fid. & Guar. Ins. Co. v. Star Equip. Corp., 541 F.3d 1, 4-5 (1st Cir.2008) (same); Bandera v. City of Quincy, 344 F.3d 47, 51-52 (1st Cir.2003) (concluding district court erred by failing to hold an evidentiary hearing to enforce an alleged settlement agreement before proceeding to trial).


Context: P 7 The charging function is inherent in the duties of the district attorney, an elected official, and is governed by the credible facts which, in the judgment of the district attorney, can be established beyond a reasonable doubt at trial and are consistent with the policies of that office, including relevant standards applicable to the initiation of charges. See 42 Pa.C.S.A. SS 8931, Indictment and information, (d) Duties of prosecuting attorneys; see also ABA Standard for Criminal Justice, Prosecution Function Standards, 3-3.9 Discretion in the Charging Decision. It is axiomatic that neither the trial court nor an appellate court may interfere with this function of the prosecution provided the appellant has not established fraud, prejudice or bias in the district attorney's election of the individual charges.

reasoning the district attorney's decision to not prosecute a private complaint, based on policy considerations, will not be disturbed absent a showing of bad faith, fraud or unconstitutionality

See Commonwealth v. Larsen, 452 Pa.Super. 508, 682 A.2d 783 (1996) (holding the district attorney is vested with the sole discretion as to what crime(s) will be charged, and that discretion will not be disturbed absent a gross abuse of discretion); cf. In re Private Complaint of Petitioner Donald Adams, Appeal of Donald Adams, 764 A.2d 577 (Pa.Super.2000) (reasoning the district attorney’s decision to not prosecute a private complaint, based on policy considerations, will not be disturbed absent a showing of bad faith, fraud or unconstitutionality).


Context: Minnesota law rests on a presumption that stability of custody is in a child's best interests.

See, e.g., Ross, 477 N.W.2d at 756-57 (teenager had moved in with noncustodial parent before parent sought custody); Edsten, 407 N.W.2d at 104 (same, but remanded for findings of fact following eviden-tiary hearing); In re Campbell’s Guardianship, 216 Minn. 113, 120-21, 11 N.W.2d 786, 790 (1943) (child wished to continue living with unrelated party after several years in their custody); Gauthier v. Walter, 110 Minn. 103, 105-6, 124 N.W. 634, 635 (1910) (same); see also Feeley, 176 Minn, at 197, 222 N.W. at 928 (child wished to return to custody of aunt who had raised her for several years).


same, but remanded for findings of fact following eviden-tiary hearing


child wished to continue living with unrelated party after several years in their custody


Context: The third and final public interest factor is the local interest in deciding local controversies at home. It is true that Ohio has a local interest in adjudicating this controversy because defendants are headquarter in Ohio and some of the underlying events took place there. See Defs.' Mem. at 18-19. But the Court is not persuaded that these facts warrant transfer because at least some of the events giving rise to plaintiffs claims arose in the District of Columbia, and there is a national interest in the enforcement of federal securities laws.

denying motion to transfer after determining that the decisions surrounding oil and gas leasing in Alaska were of "national significance" and not of local interest

Sheffer, 873 F.Supp.2d at 381 (“[W]hen national significance attaches to a controversy, local interest can sometimes be diminished.”); see also Babbitt, 104 F.Supp.2d at 17-18 (denying motion to transfer after determining that the decisions surrounding oil and gas leasing in Alaska were of “national significance” and not of local interest).

"[W]hen national significance attaches to a controversy, local interest can sometimes be diminished."


Context: Thus, the Court noted that the statutes in question were not enforceable appropriations, because they would, if so considered, violate the debt limitations clause. In City of Camden v. Byrne, the Court relied on a number of decisions holding that certain statutory provisions providing for future expenditures were not "debts" within the meaning of the constitutional prohibition.

"a projected or anticipated future legislative appropriation is not a present debt or liability"

See, e.g., Bulman v. McCrane, 64 N.J. 105, 117-18, 312 A.2d 857 (1973) (State’s obligation to pay future installments of rent, to be paid out of current revenues as annually appropriated, was not a “present debt”); State v. Lanza, 27 N.J. 516, 143 A.2d 571 (1958) (State’s assurance that it would pay municipalities amounts, inter alia, to replace property taxes lost due to condemnation for reservoir system, did not create a “debt” within meaning of debt limitation clause); cf. Holster v. Board of Trustees, supra, 59 N.J. at 71, 279 A.2d 798 (“a projected or anticipated future legislative appropriation is not a present debt or liability”).

State's obligation to pay future installments of rent, to be paid out of current revenues as annually appropriated, was not a "present debt"


State's assurance that it would pay municipalities amounts, inter alia, to replace property taxes lost due to condemnation for reservoir system, did not create a "debt" within meaning of debt limitation clause


Context: The ruling by Watts establishes that he denied Acosta's appeal based on a clinical determination by the Office of Medical Designation that Acosta did not require surgery. Watts cannot be held liable for a constitutional tort when his administrative decision was grounded in a decision made by medical personnel.

"We do not dispute [the] right to rely on medical professionals for clinical determinations."

See Howell v. Evans, 922 F.2d 712, 723 (“We do not dispute [the] right to rely on medical professionals for clinical determinations.”), vacated by settlement, 931 F.2d 711 (11th Cir.1991), reinstated by order, 12 F.3d 190 n. * (11th Cir.1994); see also Dolihite v. Maughon ex rel. Videon, 74 F.3d 1027, 1054-55 (11th Cir.1996) (awarding director of adolescent center summary judgment on section 1983 due process complaint when director could “reasonably rely on” judgment of medical personnel to secure suicidal youth’s surroundings).

awarding director of adolescent center summary judgment on section 1983 due process complaint when director could "reasonably rely on" judgment of medical personnel to secure suicidal youth's surroundings


Context: Thus, I can find no meaningful vagueness-related differences between California's law and the New York law upheld in Ginsberg. And if there remain any vagueness problems, the state courts can cure them through interpretation.

Cf. Ginsberg, 390 U.S., at 644, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (relying on the fact that New York Court of Appeals would read a knowledge requirement into the statute); Berry v. Santa Barbara, 40 Cal. App. 4th 1075, 1088-1089, 47 Cal. Rptr. 2d 661, 669 (1995) (reading a knowledge requirement into a statute). Consequently, for purposes of this facial challenge, I would not find the statute unconstitutionally vague.

"state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts"

See Erznoznik v. Jacksonville, 422 U.S. 205, 216, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975) (“state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts”).


Context: Generally, a court "may modify or rescind any order within 30 days after its entry, if no appeal has been taken." Included among these exceptional circumstances to Section 5505's jurisdictional time limits is where the court sua sponte corrects an illegal sentence originally imposed, even after the defendant has begun serving the original sentence.

finding an amended order subject to Section 5505's time limits because it added a penalty that was discretionary, rather than mandatory, under statute

See also In the Interest of K.R.B., 851 A.2d 914 (Pa.Super.2004) (finding an amended order subject to Section 5505’s time limits because it added a penalty that was discretionary, rather than mandatory, under statute).

Commonwealth v. Santone, 757 A.2d 963 (Pa.Super.2000); Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235, 1239 (1994) (recognizing respective challenges of an illegal, patently contradictory, or fraudulently procured sentence as excepted from the jurisdictional time limit imposed by Section 5505).


Context: Plaintiff responds to this argument by citing six appellate decisions--each from a different circuit reaching a result contrary to Ballantine--holding, essentially, that the absence of expert testimony or actuarial or mathematical evidence regarding methods for computing the present value of future earnings does not preclude the jury from awarding such damages. While the First Circuit has not ruled on the issue, this Court is satisfied that its instructions were sufficient and appropriate, and that plaintiff's failure to come forth with expert or other evidence regarding methods of present value computation is not fatal.

See Bonura v. Sealand Service, Inc., 505 F.2d 665, 669 (5th Cir.1974) (actuarial and mathematical evidence not prerequisite for recovery of lost future wages); Duncan v. St. Louis-San Francisco Ry. Company, 480 F.2d 79, 87 (8th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 69, 38 L.Ed.2d 109 (1973) (same); cf. McDonald v. Federal Laboratories, Inc., 724 F.2d 243, 247 (1st Cir.1984) (court’s instruction that jury must reduce future earning award to present value without identifying particular method of present value computation not erroneous).

court's instruction that jury must reduce future earning award to present value without identifying particular method of present value computation not erroneous


Context: Moreover, the parties agree that Stewart's medical condition was known by the prison guards. Our review of the summary judgment evidence indicates that Appellees also intentionally disregarded the established treatment plan for Stewart.

holding that summary judgment was improper on qualified immunity grounds when defendant was aware of prisoner's need for medical treatment but failed to provide it

See Chapman v. Johnson, 339 Fed.Appx. 446, 448 (5th Cir.2009) (per curiam) (unpublished) (stating that a defendant is not entitled to summary judgment based on qualified immunity when the defendant knew of prisoner’s injury and treatment protocol but failed to follow it); see also Easter, 467 F.3d at 465 (holding that summary judgment was improper on qualified immunity grounds when defendant was aware of prisoner’s need for medical treatment but failed to provide it).

stating that a defendant is not entitled to summary judgment based on qualified immunity when the defendant knew of prisoner's injury and treatment protocol but failed to follow it


Context: Because the parties intended for the covenant to run with the land and because the covenant touches and concerns the land, we conclude that it is a covenant running with the land.

Cf. Julian v. Lawton, 240 N.C. 436, 82 S.E.2d 210 (1954) (court construed similar covenant as personal because it was designed merely to satisfy grantor’s aesthetic sense and not intended to benefit successors or purchasers); but see Smith v. First Savings of Louisiana, FSA 575 So.2d 1033 (Ala.1991). (in action by homeowners to reform plat covenants to permit them to elect members to the architectural control committee, court found that covenant designating grantor as sole member of that committee was a personal covenant).

court construed similar covenant as personal because it was designed merely to satisfy grantor's aesthetic sense and not intended to benefit successors or purchasers


Context: Iowa Code section 598.21B prohibits a court from considering a variation from the child support guidelines "without a record or written finding, based on stated reasons, that the guidelines would be unjust or inappropriate." Iowa Code SS 598.21B(2)(d). We have repeatedly noted that courts must comply with this requirement.

explaining a "court has no authority to vary from the guidelines without a written finding that the guideline amount would be unjust or inappropriate"

See State ex rel. Nielsen v. Nielsen, 521 N.W.2d 735, 737 (Iowa 1994) (explaining a “court has no authority to vary from the guidelines without a written finding that the guideline amount would be unjust or inappropriate”); Guyer, 522 N.W.2d at 820 n. 1 (noting the requirement and that a decree “fell woefully short of this statutory requirement”); see also In re Marriage of Brown, 487 N.W.2d 331, 333 (Iowa 1992) (“Our child support guidelines are to be strictly followed unless their application would lead to an unjust or inappropriate result.”).

"Our child support guidelines are to be strictly followed unless their application would lead to an unjust or inappropriate result."


noting the requirement and that a decree "fell woefully short of this statutory requirement"


Context: Although the statutes Dr. Pendergraft is charged with violating may provide penal sanctions, there is no explicit statutory requirement that a licensee be adjudicated guilty of the acts specified in the penal statutes before disciplinary action may be instituted. In fact, both sections 456.072(l)(c) and 458.331(l)(c), Florida Statutes (2005), allow disciplinary action, regardless of adjudication, for crimes the licensee may have committed in any jurisdiction relating to the practice of, or the ability to practice, medicine. Further, even an acquittal in a criminal prosecution will not bar a license revocation proceeding based upon the same offense as the criminal prosecution.

holding revocation of appellant's medical license not barred by previous acquittal on charge of criminal abortion, even though criminal charge was basis of license revocation proceeding

State ex rel. De Gaetani v. Driskell, 139 Fla. 49, 190 So. 461, 463 (1939) (holding revocation of appellant’s medical license not barred by previous acquittal on charge of criminal abortion, even though criminal charge was basis of license revocation proceeding); see State ex rel. Sbordy v. Rowlett, 138 Fla. 330, 190 So. 59, 61-62 (1939) (recognizing that acquittal in criminal court on identical charges as those forming basis for medical board’s complaint does not bar inquiry into physician’s actions for purposes of depriving him of right to practice medicine).

recognizing that acquittal in criminal court on identical charges as those forming basis for medical board's complaint does not bar inquiry into physician's actions for purposes of depriving him of right to practice medicine


Context: By looking at each fact in isolation, the Mother improperly focuses on individual trees in a determined effort to avoid seeing the forest. When determining whether a change of circumstance has been established in a custody case, the issue is whether the evidence, viewed as a whole, establishes that the circumstances of the parties have changed enough that the best inter ests of the children will be served by changing custody.

"There exist no hard and fast rules for determining when to change custody and the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed."

See Routh, 328 S.C. at 521, 492 S.E.2d at 420 ("There exist no hard and fast rules for determining when to change custody and the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.”) (emphasis added); see also Aiken v. Nelson, 292 S.C. 400, 403, 356 S.E.2d 839, 841 (1987) (affirming change of custody "[biased upon the totality of the evidence and the broad discretionary powers of the trial court”) (emphasis added).

affirming change of custody "[biased upon the totality of the evidence and the broad discretionary powers of the trial court"


Context: As to Connecticut's interest, that state is Gilbert's domicile, and, at least as to accidents where the place of the tort is fortuitous, New York has preferred the law of a plaintiffs domicile to the law of the jurisdiction where the tort occurred.

applying New York's choice-of-law principles to decide that law of Ohio, which was domicile of plaintiff and decedent, should apply where locus of tort was fortuitous

See Babcock, 12 N.Y.2d at 482, 240 N.Y.S.2d at 750, 191 N.E.2d 279 (applying New York law where plaintiff and defendant resided in New York, but accident fortuitously occurred in Ontario); see also Pescatore v. Pan American World Airways, 97 F.3d 1, 12-14 (2d Cir.1996) (applying New York’s choice-of-law principles to decide that law of Ohio, which was domicile of plaintiff and decedent, should apply where locus of tort was fortuitous).


Context: Ultimately, while acknowledging that it is an extremely close question, the Court concludes that the second element of the Gentry test is met. Consequently, the Court finds that despite the conspicuous opt-out provisions in the 2014 agreements, the Court cannot conclude that the 2014 delegation clauses are without procedural unconscionability altogether; Mohamed's ability to opt-out of the delegation clause was not sufficiently meaningful to eliminate all oppression from the contract.

concluding that arbitration agreement had "an element of procedural unconscionability notwithstanding the opt-out provision"

See Gentry, 42 Cal.4th at 451, 64 Cal.Rptr.3d 773 (concluding that arbitration agreement had “an element of procedural unconscionability notwithstanding the opt-out provision”); see also Duran, 2009 WL 1709569, at *5 (concluding that Gentry held generally that “even a contract with an opt-out provision can be a contract of adhesion”). And when combined with the substantial amount of “surprise” drivers would face given the highly inconspicuous nature of the delegation clauses specifically, the Court finds that the 2014 agreements’ delegation clauses contain some procedural unconscionability.

concluding that Gentry held generally that "even a contract with an opt-out provision can be a contract of adhesion"


Context: The ALJ simply cannot do this. Having rejected the available medical record upon which to base an RFC assessment, the ALJ was then required to call a medical advisor and/or obtain clarification of the record to flesh out what she needed to support her decision.

"[t]he administrative law judge is entitled to give substantial weight to the testimony of a medical advisor even though the advisor has not examined the claimant personally"

See DeFrancesco v. Bowen, 867 F.2d 1040, 1043 (7th Cir. 1989)(“[t]he administrative law judge is entitled to give substantial weight to the testimony of a medical advisor even though the advisor has not examined the claimant personally”).

sometimes additional development may provide support for treating source's medical opinion that otherwise appears to be lacking

See also Barnett v. Barnhart, 381 F.3d 664, 669 (7th Cir.2004)(sometimes additional development may provide support for treating source’s medical opinion that otherwise appears to be lacking); Wilder v. Chater, 64 F.3d 335, 338 (7th Cir.1995) (ALJ may not rely on a hunch). By failing to do this and relying instead on her own opinion, she impermissibly “played doctor” — something expressly prohibited by the controlling case law.


Context: A tenant seeking equitable relief from the forfeiture of a lease despite the tenant's breach must generally place the lessor in the position it would have occupied had the breach not occurred.

See Molyneaux v. Town House, Inc., 195 A.2d 744, 746-47 (D.C.1963); Federal Deposit Ins. Corp. v. Rosen, 188 N.J.Super. 230, 234, 457 A.2d 52, 54 (App.Div.1983). To invoke that rule, a tenant must at least ordinarily be in possession. Here, by contrast, a dispossessed commercial tenant successfully regained possession despite its inadvertent nonpayment of rent due under a protective order, and we must decide whether the tenant owes rent for the three months it was out of possession. We think the underlying principle of the general rule applies: “if the tenant seeks equity, he must do equity. In other words, a tenant seeking relief from forfeiture must be prepared to square his account with the land-lord_” Molyneaux, 195 A.2d at 747; see also Kaiser v. Rapley, 380 A.2d 995, 997-98 (D.C.1977) (stressing equitable discretion of court in weighing relief from forfeiture); Trans-Lux Radio City Corp. v. Service Parking Corp., 54 A.2d 144, 148 (D.C.1947) (same); cf. Executive Square Office Bldg. v. O’Connor & Assocs., Inc., 19 B.R. 143 (Bankr.N.D.Fla.1981) (discussing application of equitable relief from forfeiture of lease to chapter 11 debtor); In re Chuck Wagon Bar-B-Que, Inc., 7 B.R. 92, 94-95 (Bankr.D.D.C.1980) (same).


Context: Where, as here, a driver raises no issue concerning the scope or duration of a search to which he consented, only the time period between the initial stop and the driver's consent is relevant to our review of the reasonableness of the duration of the traffic stop. Under these circumstances, a period of detention lasting 8 to 10 minutes was not unreasonable.

observing that "[w]here at its inception a traffic stop is a valid one for a violation of the law, we doubt that a resultant seizure of no more than seventeen minutes can ever be unconstitutional on account of its duration: the detention is too short."

See Purcell, 236 F.3d at 1277-79 (concluding that 14-minute period between the initial traffic stop and the driver’s consent to the search of his car was not unreasonable, where the officer was waiting for the results from a computer background check and had not given the citation to the driver when the driver consented to the search of his vehicle); cf. Hernandez, 418 F.3d at 1212 n. 7 (observing that “[w]here at its inception a traffic stop is a valid one for a violation of the law, we doubt that a resultant seizure of no more than seventeen minutes can ever be unconstitutional on account of its duration: the detention is too short.”).

concluding that 14-minute period between the initial traffic stop and the driver's consent to the search of his car was not unreasonable, where the officer was waiting for the results from a computer background check and had not given the citation to the driver when the driver consented to the search of his vehicle


Context: As noted above, the panel in Carpenter and the Love concurrence found it absurd to imagine that the discretion provided under SS 401 meant that criminal contempt may be punished in the same manner as terrorists or murders. The response of courts for hundreds of years to the same unbounded discretion has not been to construct an artificial and illusory limit on courts' discretion, but to make sure that the exercise of the courts' discretion is done with the utmost sense of responsibility and circumscription. When a reviewing court determines that a sentencing court has failed in this charge, the sentence is rightfully revised.

reducing contemnor's sentence from twelve months to six because he did not receive a jury trial

See, e.g., United States v. Gomez, 553 F.2d 958 (5th Cir.1977) (fifteen-year sentence reduced to a two-year sentence); United States v. Leyva, 513 F.2d 774 (5th Cir.1975) (thirty-five year sentence reduced to two years); United States v. Marshall, 371 F.3d 42, 48-49 (2d Cir.2004) (reducing contemnor’s sentence from twelve months to six because he did not receive a jury trial); see also United States v. Roach, 108 F.3d 1477, 1484-85 (C.A.D.C.1997) (noting appellate court’s responsibility to review district court’s sentence, but choosing instead to remand for district court to fashion appropriate sentence), vacated on other grounds United States v. Roach, 136 F.3d 794 (C.A.D.C.1998).

noting appellate court's responsibility to review district court's sentence, but choosing instead to remand for district court to fashion appropriate sentence


Context: (Citations and emphasis omitted.) The same rationale applies to the homicide defendant who relies on the "parental reasonable discipline" justification defense -- the defendant is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act because if the defendant is justified in administering reasonable parental discipline, the defendant is guilty of no crime; if the defendant is not entitled to rely on the reasonable discipline defense, the homicide does not fall within the "lawful act" predicate of OCGA SS 16-5-3 (b) since, in rejecting the justification claim, the jury has determined that the act was not lawful.

parental beating of a child that removed portions of skin, caused portions of skin to be beaten into a "jelly," and resulted in the child's death was an unlawful act

See Ashford v. State, 144 Ga. 832 (88 SE 205) (1916) (parental beating of a child that removed portions of skin, caused portions of skin to be beaten into a “jelly,” and resulted in the child’s death was an unlawful act); Teal v. State, 122 Ga. App. 532, 534 (177 SE2d 840) (1970) (whether the defendant’s conduct was lawful at the outset, what took place thereafter (15 or more heavy blows) discloses felonious conduct not within the scope of involuntary manslaughter).

trial court correctly denied request for charge on lawful act-unlawful manner involuntary manslaughter since defendant's act in placing hand over infant's nose and mouth so forcefully as to prevent his breathing for a period of time sufficient to result in brain damage comes so plainly within the definition of the crime of reckless conduct that it cannot qualify as a lawful act

See also Moses v. State, 264 Ga. 313 (2) (444 SE2d 767) (1994) (trial court correctly denied request for charge on lawful act-unlawful manner involuntary manslaughter since defendant’s act in placing hand over infant’s nose and mouth so forcefully as to prevent his breathing for a period of time sufficient to result in brain damage comes so plainly within the definition of the crime of reckless conduct that it cannot qualify as a lawful act); Harmon v. State, 259 Ga. 846 (4) (388 SE2d 689) (1990) (trial court correctly refused to give charge on lawful act-unlawful manner involuntary manslaughter since defendant’s act of administering an enema to a 27-month-old toddler by inserting the tip of a douche bottle into the child’s body so as to tear the child’s viscera is reckless conduct and thus cannot qualify as a “lawful act”).


trial court correctly refused to give charge on lawful act-unlawful manner involuntary manslaughter since defendant's act of administering an enema to a 27-month-old toddler by inserting the tip of a douche bottle into the child's body so as to tear the child's viscera is reckless conduct and thus cannot qualify as a "lawful act"


whether the defendant's conduct was lawful at the outset, what took place thereafter (15 or more heavy blows


Context: As the trial court found, the statement was made in a hospital -- "the most formal of medical settings" -- after the victim had undergone "diagnostic tests up to and including a CAT scan." In addition, the victim had an existing doctor-patient relationship with Gladstone as she had met with her in Gladstone's medical office on two prior occasions in the previous six months.

holding that there was insufficient evidence that alleged victim made statements to forensic nurse-examiner for purpose of medical diagnosis or treatment in part because there was no evidence regarding alleged victim's "past experience with medical facilities or medical providers"

See State v. Graf, 143 N.H. 294, 304 (1999) (noting preexisting relationship between doctor and victim in analysis of whether victim made statements for purpose of medical diagnosis or treatment); cf. VanPatten v. State, 986 N.E.2d 255, 265 (Ind. 2013) (holding that there was insufficient evidence that alleged victim made statements to forensic nurse-examiner for purpose of medical diagnosis or treatment in part because there was no evidence regarding alleged victim’s “past experience with medical facilities or medical providers”).


Context: Because this Court held that a defamation claim will not lie against the media defendants, a fortiori that same claim could not lie against the attorneys who advised them. Even if we ignore this court's June 8, 2000 opinion in cause number 14-99-00026-CV, there is simply no basis in law for a suit against the attorneys representing the media defendants for their pre-publication discussions of the allegedly defamatory news reports.

holding communications between corporate counsel and corporation's employees made for the purpose of rendering legal advice protected by attorney-client privilege

See Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (holding communications between corporate counsel and corporation’s employees made for the purpose of rendering legal advice protected by attorney-client privilege); see also Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1302 (D.C.Circ.1988) (holding pre-publication discussions between libel counsel and reporters as fitting “squarely within the scope of the privilege as defined in Upjohn ”).

holding pre-publication discussions between libel counsel and reporters as fitting "squarely within the scope of the privilege as defined in Upjohn "


Context: Specifically, no charge of CCE murder requires proof that there were other CCE murders, either in the same episode or in a subsequent episode, as required by the "multiple killings" and "killing another after a passage of time" "non-statutory aggravating factors," respectively. Thus, each of these "non-statutory aggravating factors" involves a factual component not required to prove the underlying offenses, considered only after a determination of guilt has been made on the underlying offenses.

Williams, 576 F.3d at 870 (determining that differences in the factual elements or components of the factors and the offense meant that there was no duplication of constitutional dimensions or otherwise). It is also reasonable to conclude that-at the very least-the fact that the defendant aided and abetted multiple killings in a single episode and aided and abetted another killing separated in time from an earlier killing or killings would perform the appropriate function of “non-statutory aggravating factors” by allowing for the individualized determination of whether a death sentence is justified, that is, helping to inform the selection decision.

See Cox, 133 F.3d at 571 (considering whether the aggravating factor performed its required function in the penalty process); see also Johnson, 900 F.Supp.2d at 958-59, 965-67 (explaining the function of “non-statutory aggravating factors”).


Context: On several occasions, our Court has specifically concluded that the protections of Section 9 exceed those in its federal counterpart.

observing in regard to Article I, Section 8 of the Pennsylvania Constitution that from 1961-1973, this Court "tended to parallel the cases interpreting the 4th Amendment," but "beginning in 1973, our case-law began to reflect a clear divergence from federal precedent."

Cf. Edmunds, 586 A.2d at 898 (observing in regard to Article I, Section 8 of the Pennsylvania Constitution that from 1961-1973, this Court “tended to parallel the cases interpreting the 4th Amendment,” but “beginning in 1973, our case-law began to reflect a clear divergence from federal precedent.”).

addressing immunity and opining that "Article I, Section 9 is, in fact, more expansive than the Fifth Amendment" but not so much as to require greater protection than that provided by the relevant statute

Swinehart, 664 A.2d at 969 (addressing immunity and opining that “Article I, Section 9 is, in fact, more expansive than the Fifth Amendment” but not so much as to require greater protection than that provided by the relevant statute); Turner, 499 Pa. 579, 454 A.2d 537 (rejecting Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490, and holding that reference to post-arrest, pre-Miranda silence violates Article I, Section 9); Triplett, 462 Pa. 244, 341 A.2d 62 (plurality) (diverging, under the lead opinion, from Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and concluding that use of suppressed but voluntary statements to impeach a defendant’s testimony violated Article I, Section 9, later abrogated by constitutional amendment).


Context: In the same manner that Congress has not precluded our fashioning of a federal common law rule in this area, it has not precluded our selective incorporation of state laws into that rule to the extent that they can be applied consistently with, or in furtherance of, the underlying purposes of the NHA.

in some situations "it may fairly be taken that Congress has consented to application of state law, when acting partially in relation to federal interests and functions, through failure to make other provision concerning matters ordinarily so governed"

See supra note 7; see also United States v. Standard Oil Co., 332 U.S. 301, 309, 67 S.Ct. 1604, 1609, 91 L.Ed. 2067 (1947) (in some situations “it may fairly be taken that Congress has consented to application of state law, when acting partially in relation to federal interests and functions, through failure to make other provision concerning matters ordinarily so governed”); cf. Powers v. United States Postal Service, 671 F.2d 1041 (7th Cir.1982) (where a federal regulatory scheme was not affected, court applied state landlord-tenant law in landlord’s action against U.S. Postal Service); Merrill Tenant Council v. United States Department of Housing and Urban Development, 638 F.2d 1086 (7th Cir.1981) (incorporating Illinois statute requiring landlord to pay interest on tenants’ security deposits into tenants’ leases with HUD).

where a federal regulatory scheme was not affected, court applied state landlord-tenant law in landlord's action against U.S. Postal Service


incorporating Illinois statute requiring landlord to pay interest on tenants' security deposits into tenants' leases with HUD


Context: These precedents are premised on the belief that juries follow the instructions they are given. In the Confrontation Clause context, however, the Supreme Court has recognized that the risk of prejudice stemming from the introduction of a co-defendant's confession is so high that, in some circumstances, even a limiting instruction cannot cure the constitutional problem.

holding that a properly instructed jury may not consider the redacted confession of a co-defendant which "obviously referred] directly to someone, often obviously the defendant"

See Bruton, 391 U.S. at 136, 88 S.Ct. 1620 (“[Tjhere are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.”); see also Gray v. Maryland, 523 U.S. 185, 196, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) (holding that a properly instructed jury may not consider the redacted confession of a co-defendant which “obviously referred] directly to someone, often obviously the defendant”).

"[Tjhere are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored."


Context: Here, the proposed expert is to testify about GPS coordinates and analysis. Under the caselaw, this subject matter does not require scientific, technical or specialized knowledge.

United States v. Thompson, 393 Fed.Appx. 852, 858, 859 (3d Cir.2010) (holding that the trial court properly allowed lay witness testimony concerning the operation of a GPS device, including authentication of the GPS’s data); see also United States v. Espinal-Almeida, 699 F.3d 588, 612-13 (1st Cir.2012) (explaining that issues surrounding GPS and its accuracy are not so scientific that an expert is necessary).

holding that the trial court properly allowed lay witness testimony concerning the operation of a GPS device, including authentication of the GPS's data


Context: The district court made no such finding, relying exclusively on the remand itself. If indeed the narrowing is due to plaintiffs' litigation (either because it led the Board to cut down U.S. Lines's request, or because the remand induced U.S. Lines to trim its sails), this could represent the sort of benefit the appellees sought in bringing suit, the kind of "distinct external effect" on the real world that can render appellees partially prevailing parties.

Grano v. Barry, 783 F.2d 1104, 1110 (D.C.Cir.1986) (injunction issued preventing the razing of building until after election); see also Texas State Teachers, 109 S.Ct. at 1494 (material alteration of school policy regarding the rights of teachers to communicate with each other on certain issues).


Context: It is undisputed that Enockson called an ambulance for Tagstrom immediately upon seeing the accident and that the ambulance arrived within six minutes or less. Although Enokson stayed with Pottebaum after calling the ambulances, other officers involved in the chase were on the scene quickly and watched over Tagstrom. Given these facts, there can be no question that Enockson did not intentionally deny or delay medical treatment for Tagstrom.

no deliberate indifference when, in response to prisoner's complaint, prisoner was checked by paramedic and sent to hospital within one and a half hours

Mills v. Smith, 656 F.2d 337, 340 (8th Cir.1981) (no deliberate indifference when, in response to prisoner’s complaint, prisoner was checked by paramedic and sent to hospital within one and a half hours); cf., e.g., Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1985) (deliberate indifference is characterized by “obduracy and wantonness” in the denial of necessary treatment); Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir.1980) (question of fact raised when plaintiff alleged he was deliberately denied medical treatment for three days).

deliberate indifference is characterized by "obduracy and wantonness" in the denial of necessary treatment


question of fact raised when plaintiff alleged he was deliberately denied medical treatment for three days


Context: Thus, under plain language of Rule 32(c)(1), Nap-pi was entitled to an opportunity to comment on the information in the report during the sentencing hearing. Moreover, given that the Rule is intended to promote "focused, adversarial development of the factual and legal issues," it follows that the Rule requires that counsel for the defendant and the government be provided with a meaningful opportunity to address the information at issue. Thus, we hold that where, as here, counsel are faced with having to review and address the contents of an additional document on which the Court intends to rely at sentencing, a meaningful opportunity to comment requires the Court, in accordance with Rule 32(c)(1), to provide a copy of the document to counsel for the defendant and the government within a sufficient time prior to the sentencing hearing to afford them with a meaningful opportunity to comment on it at sentencing and, depending on the document, prepare a response or contest it.

"Rule 32 requires that except in limited circumstances, ... the defendant must have the opportunity to review information that will be used for sentencing."

See United States v. Hayes, 171 F.3d 389, 392 (6th Cir.1999) (“Rule 32 requires that except in limited circumstances, ... the defendant must have the opportunity to review information that will be used for sentencing.”); United States v. Burger, 964 F.2d 1065, 1072 (10th Cir.1992) (vacating sentence where victim’s letter impacted restitution order and the court and Probation Office failed to provide copies to counsel, stating that “[w]e agree with [defendant] that the utilization of the letters without disclosure to him was violative of Fed.R.Crim.P. 32”); United States v. Connor, 950 F.2d 1267, 1278 (7th Cir.1991) (dicta) (commenting that district court “should endeavor to insulate themselves” from extraneous documents it receives pri- or to sentencing unless it “makes them known to the parties”); Curran, 926 F.2d at 63 (exercising supervisory powers and adopting rule that sentencing courts considering extraneous documents should either “make clear that the document is not being used for its factual content, or should disclose to the defendant as much as was relied upon, in a timely manner, so as to afford the defendant a fair opportunity to examine and challenge it”); see also United States v. Berzon, 941 F.2d 8, 18 (1st Cir.1991) (stating that district court should have alerted the defendant, in advance of the sentencing hearing, that it expected to consider co-defendant’s testimony at the sentencing hearing).

stating that district court should have alerted the defendant, in advance of the sentencing hearing, that it expected to consider co-defendant's testimony at the sentencing hearing


vacating sentence where victim's letter impacted restitution order and the court and Probation Office failed to provide copies to counsel, stating that "[w]e agree with [defendant] that the utilization of the letters without disclosure to him was violative of Fed.R.Crim.P. 32"


commenting that district court "should endeavor to insulate themselves" from extraneous documents it receives pri- or to sentencing unless it "makes them known to the parties"


exercising supervisory powers and adopting rule that sentencing courts considering extraneous documents should either "make clear that the document is not being used for its factual content, or should disclose to the defendant as much as was relied upon, in a timely manner, so as to afford the defendant a fair opportunity to examine and challenge it"


Context: P23 We have since clarified that jurisdiction is comprised of only two components: jurisdiction over the person and subject matter jurisdiction. "Subject matter jurisdiction" refers to a court's ability to entertain a type of case, not to its authority to enter an order in a particular case.

"[e]ither a court has subject matter jurisdiction or it does not"

See ZDI Gaming, Inc., 173 Wn.2d at 618 (“ ‘[i]f the type of controversy is within the subject matter jurisdiction, then all other defects or errors go to something other than subject matter jurisdiction’ ” (internal quotation marks omitted) (quoting Marley v. Dep’t of Labor & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994))); Schneider, 173 Wn.2d at 360 (stating the legislature limited the superior courts’ authority, not jurisdiction, to modify another state’s child support order by adopting the Uniform Interstate Family Support Act, chapter 26.21A RCW); see also Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 730, 254 P.3d 818 (2011) (“[e]ither a court has subject matter jurisdiction or it does not”).

stating the legislature limited the superior courts' authority, not jurisdiction, to modify another state's child support order by adopting the Uniform Interstate Family Support Act, chapter 26.21A RCW


Context: Accordingly, an injury results from a state's failure to maintain a public highway when the dangerous condition of the highway causing the injury is allowed to develop subsequent to the initial design and construction of the highway.

See, e.g., Moldovan, 842 P.2d at 225 (holding that the plaintiffs injuries were a result of the state's failure to maintain and therefore finding a waiver of immunity under the CGIA where the state allowed a right-of-way fence adjacent to highway to fall into a state of disrepair thereby enabling a cow to run onto the highway and injure the plaintiff); cf., e.g, Powell v. City of Colo. Springs, 25 P.3d 1266, 1268 (Colo.App.2000) ("[The failure to keep a facility free of obstacles even if such obstacles were not part of the original design-may lead to liability on the part of a governmental entity.").


Context: Consistent with this interpretation, the Fourth Circuit has held that "federal law requires a court to substitute assets for the unavailable tainted property," implicitly recognizing that Section 853(p) is incorporated into the civil forfeiture context through Section 2461.

stating there is "no meaningful difference between the propriety of an in personam money judgment arising directly under 21 U.S.C. SS 853 ... and the propriety of an in personam money judgment under 21 U.S.C. SS 853 by way of 28 U.S.C. SS 2461(c

See United States v. Alamoudi, 452 F.3d 310, 314 (4th Cir.2006) (holding that when a plea agreement or consent order does not explicitly prohibit seeking the forfeiture of substitute assets via civil forfeiture under § 981, the statutory scheme controls and requires the forfeiture of substitute assets pursuant to §§ 2461(c) and 853(p)); cf. Kalish, 626 F.3d at 169 (stating there is “no meaningful difference between the propriety of an in personam money judgment arising directly under 21 U.S.C. § 853 ... and the propriety of an in personam money judgment under 21 U.S.C. § 853 by way of 28 U.S.C. § 2461(c).”); Capoccia, 402 Fed.Appx. at 641 (holding that since “the reference in § 2461(c) to the “procedures” of § 853 includes the latter statute’s implicit authorization of in personam money judgments, we see no reason why this reference should not also include the forfeiture of substitute assets.”).

holding that when a plea agreement or consent order does not explicitly prohibit seeking the forfeiture of substitute assets via civil forfeiture under SS 981, the statutory scheme controls and requires the forfeiture of substitute assets pursuant to SSSS 2461(c


Context: As we have emphasized, Kimler does not address his argument to a single one of the dozens of exhibits introduced in this case, along with testimony, showing actual interstate trafficking in the proscribed images over the internet. Kimler also does not argue that such actual interstate activity is not in interstate commerce, nor could he.

holding that "transmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce"

See, e.g., United States v. Runyan, 290 F.3d 223, 239 (5th Cir.) (holding that “transmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce”), cert. denied, 537 U.S. 888, 123 S.Ct. 137, 154 L.Ed.2d 149 (2002); United States v. Schaffner, 258 F.3d 675, 679-83 (7th Cir.2001) (holding that evidence of transport of child pornography across states lines establishes a sufficient nexus to interstate commerce); see also United States v. Kammersell, 196 F.3d 1137, 1138-39 (10th Cir.1999) (holding that Congress could regulate an instant message that was both sent and received in Utah where there was evidence that en route from the sender to the recipient the message traveled to Virginia over ordinary telephone lines).


holding that evidence of transport of child pornography across states lines establishes a sufficient nexus to interstate commerce


Context: After considering the relevant factors for each witness, the Court finds that each of the witness's statement is independently reliable for purposes of determining probable cause. The Court further notes that any one of the three witnesses' identification of Respondent would generally be sufficient to establish probable cause.

"In the domestic law enforcement context, an ordinary citizen's eyewitness account of criminal activity and identification of a perpetrator is normally regarded as sufficient to supply probable cause."

See Escobedo, 623 F.2d at 1102 (relying on deposition of victim identifying petitioner after being shown a single photograph of petitioner in upholding finding of probable cause); see also Cervantes Valles, 268 F.Supp.2d at 773 (“In the domestic law enforcement context, an ordinary citizen’s eyewitness account of criminal activity and identification of a perpetrator is normally regarded as sufficient to supply probable cause.”) (citing Burbridge, 252 F.3d at 778).


Context: . Defendants' claims that they were stupid or duped are not new to this court.

stating defendant "not the unwilling dupe he would have us believe"

See also Dozal-Bencomo, 952 F.2d at 1251 (stating defendant "not the unwilling dupe he would have us believe”).

finding no impropriety in prosecutor's statement that defendants tried to "dupe" hospital staff

See, e.g., United States v. Neely, 980 F.2d 1074, 1085-86 (7th Cir.1992) (finding no impropriety in prosecutor's statement that defendants tried to "dupe” hospital staff); United States v. Johnson, 927 F.2d 999, 1004-05 (7th Cir.1991) (rejecting defendant’s claim that she was too unsophisticated to have requisite intent to defraud government); United States v. George, 869 F.2d 333, 334 (7th Cir.1989) (noting defendant's claim at sentencing hearing that court consider defendant's totally unsophisticated behavior).


rejecting defendant's claim that she was too unsophisticated to have requisite intent to defraud government


noting defendant's claim at sentencing hearing that court consider defendant's totally unsophisticated behavior


Context: Alvarado suggests that this court should take judicial notice of the recent progress she has made as is reflected in several reports that she has proffered to us. We note that the reports were not referred to, much less offered or admitted into evidence, in the Family Court.

"[o]ne of our most settled doctrines in this jurisdiction is that a matter not raised before the trial court may not be raised for the first time on appeal"

See, e.g., Chase v. Bouchard, 671 A.2d 794, 795 (R.I.1996) (“[o]ne of our most settled doctrines in this jurisdiction is that a matter not raised before the trial court may not be raised for the first time on appeal”). In any event these reports do not present either factual findings or legal rulings that could be judicially noticed.

"[t]he general rule that allows a court to take judicial notice of its own records may not be expanded to allow the court to take judicial notice of every document, paper, or report that at some time has been placed in a court file"

See In re McKayla C., 618 A.2d 1264, 1265 (R.I. 1998); see also In re Michael A., 552 A.2d 368, 370 (R.I.1989) (“[t]he general rule that allows a court to take judicial notice of its own records may not be expanded to allow the court to take judicial notice of every document, paper, or report that at some time has been placed in a court file”).


Context: Under the circumstances, the transcript of the prior testimony is admissible under the Rule because the witness was "unavailable" and the other conditions were complied with. At the first trial she had been subject to cross examination by the defendant.

See United States v. Curry, 471 F.2d 419, 421 (5th Cir.), cert. denied, 411 U.S. 967, 93 S.Ct. 2150, 36 L.Ed.2d 688 (1973) (witness unavailable to testify at trial); United States v. Hayes, 535 F.2d 479, 482 (8th Cir. 1976) (transcript of witness testimony at prior trial held admissible where Government was unable to obtain service of subpoena); United States v. Bell, 500 F.2d 1287, 129 (2d Cir. 1974) (sick witness held unavailable; unavailability is for trial judge’s determination in first instance and appellate court would not quickly overturn his ruling); cf. Government of Virgin Islands v. Aquino, 378 F.2d 540, 551 (3rd Cir. 1967) (government must make bona fide effort to secure attendance of witness). We also note that the testimony in the transcript was cumulative of George Jackson’s testimony.


Context: They both admitted in their signed stipulation of facts to having had "the intent to promote the carrying on of the conspiracy." Given their admissions of guilt to all of the elements in the charge and in their stipulation of facts, their post-plea claims of factual insufficiency and innocence are unavailing.

"post-plea regrets" are not a fair and just reason to warrant withdrawal of guilty plea

See United States v. Wicker, 80 F.3d 263, 267 (8th Cir.1996) (defendant’s admissions at plea hearing provided “abundant evidence” in support of guilty plea); United States v. Peebles, 80 F.3d 278, 279 (8th Cir.1996) (per curiam) (defendant’s claims of innocence are unavailing given ad missions to the contrary in plea agreement, stipulation, and at change-of-plea hearing); see also Stuttley, 103 F.3d at 686 (“post-plea regrets” are not a fair and just reason to warrant withdrawal of guilty plea).

defendant's admissions at plea hearing provided "abundant evidence" in support of guilty plea


defendant's claims of innocence are unavailing given ad missions to the contrary in plea agreement, stipulation, and at change-of-plea hearing


Context: They do not discuss the validity of Derian's camber and toe measurements at all. Derian himself provides no information concerning his methods or whether they are generally approved in his field; he merely states the conclusions he reached using those methods. This failure to state whether his methodology is generally accepted in the field, and defendants' proffer of evidence questioning its validity, provides some basis for excluding his testimony.

"The methodology underlying the tests Ezra conducted to determine whether the GL1800 met his standard also gives us pause. Ezra tested a single, used 2006 GL1800, ridden by a single test rider, and extrapolated his conclusions to the fleet of GL1800s produced from 2001 to 2008"

See Cabrera v. Cordis Corp., 134 F.3d 1418, 1423 (9th Cir. 1998) (excluding an expert’s testimony because he did not “demonstrate that he fol lowed a scientific method embraced by at least some other experts in the field”); Heisler v. Maxtor Corp., No. 5:06-cv-06634-JF (PSG), 2011 WL 1496114, *7 (N.D.Cal. Apr. 20, 2011) (identifying a variety of concerns with the reliability of an expert opinion, including “the fact that Plaintiffs offer no evidence that Fowler’s approach is an accepted method for analyzing defects such as those at issue here, nor do they offer evidence with respect to the reliability of the tests that Fowler performed”); see also American Honda Motor Co. v. Allen, 600 F.3d 813, 818 (7th Cir.2010) (“The methodology underlying the tests Ezra conducted to determine whether the GL1800 met his standard also gives us pause. Ezra tested a single, used 2006 GL1800, ridden by a single test rider, and extrapolated his conclusions to the fleet of GL1800s produced from 2001 to 2008”).

excluding an expert's testimony because he did not "demonstrate that he fol lowed a scientific method embraced by at least some other experts in the field"


identifying a variety of concerns with the reliability of an expert opinion, including "the fact that Plaintiffs offer no evidence that Fowler's approach is an accepted method for analyzing defects such as those at issue here, nor do they offer evidence with respect to the reliability of the tests that Fowler performed"


Context: The Supreme Court has not decided whether Younger abstention applies when the relief sought in federal court is damages for alleged police misconduct when effecting an arrest in an underlying state criminal case. The circuit courts of appeals are divided on this issue, but the Eleventh Circuit has indicated its approval of applying the Younger doctrine to damages actions.

"It is doubtful that federal district courts may dismiss claims for damages under abstention principles."

See Doby v. Strength, 758 F.2d 1405, 1406 (11th Cir.1985) (per curiam) (reversing dismissal of § 1988 action, but ordering district court to abstain from resolving the merits of petitioner’s claims until state court conviction is reviewed by the Georgia Court of Appeals); see also Pompey v. Broward County, 95 F.3d 1543, 1552 n. 12 (11th Cir.1996) (dictum) (“It is doubtful that federal district courts may dismiss claims for damages under abstention principles.”).

reversing dismissal of SS 1988 action, but ordering district court to abstain from resolving the merits of petitioner's claims until state court conviction is reviewed by the Georgia Court of Appeals


Context: The school committee correctly points out that the results obtained by a claimant may affect the determination of attorney's fees; however, it incorrectly applies this principle to the facts of this case in requesting a downward adjustment of the lodestar. Salem v. Massachusetts Commn.

court may adjust the lodestar by "award[ing] only that amount of fees that is reasonable in relation to the results obtained"

See Andrade v. Jamestown Hous. Authy., 82 F.3d 1179, 1191 (1st Cir. 1996) (court may adjust the lodestar by “award[ing] only that amount of fees that is reasonable in relation to the results obtained”).

Against Discrimination, 44 Mass. App. Ct. at 648 n.29, citing Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) (a critical factor in determining reasonableness of fee award is degree of success obtained).


Context: As noted earlier, decisions from three state supreme courts support Varner's interpretation of Crane. See supra at 766-67. The standard of review in habeas corpus cases, however, is whether the state court's application of the federal law was objectively unreasonable.

under the "unreasonable application of' clause, the court should "defer to a reasonable, if incorrect, state court decision"

Williams, 529 U.S. at 410, 120 S.Ct. 1495 (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”); see also Anderson v. Cowan, 227 F.3d 893, 896-97 (7th Cir.2000) (under the “unreasonable application of’ clause, the court should “defer to a reasonable, if incorrect, state court decision”).

"[A]n unreasonable application of federal law is different from an incorrect application of federal law."


Context: Although plaintiffs state in their Notice of Motion that they seek "attorney's fees" no reference to attorney's fees is made in their itemized list of expenditures. They list only costs for mailing, Federal Express, messenger service, transcripts, copies of exhibits and a deposition. Costs under Rule 68 generally do not include attorneys fees.

In appropriate cases costs may be deemed to include prevailing party's attorneys fees in a civil rights action for purposes of Rule 68.

Y.1985); Coleman v. McLaren, 92 F.R.D. 754, 757 (N.D.Ill.1981); but see Lyons v. Cunningham, 583 F.Supp. 1147, 1157 (S.D.N.Y.1983) (In appropriate cases costs may be deemed to include prevailing party’s attorneys fees in a civil rights action for purposes of Rule 68.)

See Fulps v. Springfield, 715 F.2d 1088, 1095 (6th Cir.1983) (attorneys fees included in costs only where authorized by substantive statute at issue in the litigation); Quintel Corp. N. V. v. Citibank N.A., 606 F.Supp. 898, 915-16 (S.D.N.


Context: Mere verbal remonstrances or disagreements with an officer, standing alone, would not generally be considered an obstruction or a hindrance to the performance of his duty to the point of rendering the speaker guilty of criminal conduct.

Moccia v. State, 174 Ga.App. 764, 331 S.E.2d 99 (Ga.Ct.App.1985) (defendant who made no threat of violence or physical advance on officer did not obstruct officer); see also English v. State, 293 So.2d 105 (Fla.Dist.Ct.App.1974) (business owner who stood in front of officers in* his own place of business and asked them to conduct investigation outside did not resist or obstruct officers).


Context: . The fact that these attorneys, and in particular Mr. Rees, represent the United States does not preclude the application of Rule 11.

Mattingly v. United States, 939 F.2d 816, 818-19 (9th Cir.1991) (the government is not exempt from Rule 11 sanctions on the ground of sovereign immunity); Adamson v. Bowen, 855 F.2d 668 (10th Cir.1988) (28 U.S.C. § 2412 waives government sovereign immunity as to Rule 11 sanctions); United States v. Gavilan, 849 F.2d 1246, 1251 (9th Cir.1988) (the government is subject to the Rules of Civil Procedure when it enters a claim as a civil litigant); see Andrulonis v. United States, 724 F.Supp. 1421, 1537 (N.D.N.Y.1989); Joseph v. United States, 121 F.R.D. 406, 413-14 (D. Hawaii 1988); National Association of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D.Cal.1987); Larkin v. Heckler, 584 F.Supp. 512 (N.D.Cal.1984); cf. Sierra Club v. Ruckelshaus, 21 ERC (BNA) 2153 (N.D.Cal.1984) (holding the Director of the United States Environmental Protection Agency in contempt for failure to comply with court order).


28 U.S.C. SS 2412 waives government sovereign immunity as to Rule 11 sanctions


the government is subject to the Rules of Civil Procedure when it enters a claim as a civil litigant


Context: A court's failure to perform this balancing test may be harmless if the evidence overwhelmingly demonstrates that the defendant violated the terms of his supervised release. If admission of hearsay evidence violates due process, "the defendant bears the burden of showing that the court explicitly relied on the information;" the defendant must show "(1) that the challenged evidence is materially false or unreliable, and (2) that it actually served as the basis for the sentence."

See United States v. Taylor, 931 F.2d 842, 847 (11th Cir.1991) (quotation omitted) (discussing the admissibility of hearsay testimony in the context of a probation revocation hearing); see also Frazier, 26 F.3d at 113 (holding that there is no significant conceptual difference between the revocation of probation or parole and the revocation of supervised release).


Context: We conclude that the appeal waiver is enforceable, because our review of the record demonstrates that Davis entered into the plea agreement and the appeal waiver knowingly and voluntarily; the argument falls within the scope of the waiver; and no miscarriage of justice would result from enforcing the waiver.

See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de novo review of validity and applicability of appeal waiver); United States v. Andis, 333 F.3d 886, 890-92 (8th Cir. 2003) (en banc) (discussing enforcement of appeal waivers); see also Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (defendant’s statements made during plea hearing carry strong presumption of verity). Furthermore, we have independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and have found no non-frivolous issues for appeal outside the scope of the waiver.

defendant's statements made during plea hearing carry strong presumption of verity


Context: . The VA contends that Plaintiffs waived their remaining equal-protection claim because (1) they did not reallege on appeal that the FVEC does not satisfy rational basis review, and (2) they contend for the first time on appeal that the FVEC fails to satisfy strict scrutiny because it classifies the veterans on the basis of national origin.

See Kama, 394 F.3d at 1238 (waiver applies to issues not raised by an appellant in the opening brief); see also O'Guinn, 502 F.3d at 1063 n. 3 (waiver applies to issues not raised before the district court).


Context: . Defendants have also raised the issue of the indictment merely alleging a de minimus effect on interstate commerce. We find this argument unavailing.

"[Wjhere a general regulatory statute bears a substantial relation to commerce, the de minimus character of individual instances arising under the statute is of no consequence."

Lopez, 514 U.S. at 558, 115 S.Ct. 1624 ("[Wjhere a general regulatory statute bears a substantial relation to commerce, the de minimus character of individual instances arising under the statute is of no consequence.”); see, e.g., United States v. DiSanto, 86 F.3d 1238 (1st Cir.1996) (holding that restaurant that bought and sold products produced outside of state satisfied interstate commerce requirement for federal arson statute); United States v. Sweet, 548 F.2d 198, 202 (7th Cir.1977) (holding that tavern that , purchased beer from out-of-state vendor satisfied interstate commerce requirement in criminal explosives statute); Cf. United States v. Butt, 955 F.2d 77, 80 n. 2 (1st Cir.1992), quotinq United States v. Rivera-Medina, 845 F.2d 12, 15 (1st Cir.1988) (stating that "It is well settled that ‘a realistic probability of a de minimis effect on'interstate commerce’ is all that need be shown to establish federal jurisdiction over extortionate crimes affecting interstate commerce.”); United States v. Murphy, 480 F.2d 286, 290 (1st Cir.1973) (holding that de minimus impact on interstate commerce is enough to sustain jurisdiction pursuant to Federal Meat Inspection Act); YMCA of the Pikes Peak Region, Inc. v. NLRB, 914 F.2d 1442, 1447-48 (10th Cir.1990) citing NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963) (per curiam) (noting that National Labor Relations Board has broad statutory jurisdiction in cases in which "an employer has more than a de mini-mus impact on the flow of interstate commerce”).


holding that tavern that , purchased beer from out-of-state vendor satisfied interstate commerce requirement in criminal explosives statute


stating that "It is well settled that 'a realistic probability of a de minimis effect on'interstate commerce' is all that need be shown to establish federal jurisdiction over extortionate crimes affecting interstate commerce."


holding that de minimus impact on interstate commerce is enough to sustain jurisdiction pursuant to Federal Meat Inspection Act


noting that National Labor Relations Board has broad statutory jurisdiction in cases in which "an employer has more than a de mini-mus impact on the flow of interstate commerce"


Context: Defendants' focus on formal technicalities does little to undermine the well-pleaded factual allegations of the complaint. Even post-Twombly, federal pleading requires plaintiffs to set forth only their "claims for relief, not causes of action, statutes or legal theories."

recognizing that "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era"

See Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir.2008); see also Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466 (9th Cir.1990) (inferring claim from facts alleged); Holman v. Indiana, 211 F.3d 399, 407 (7th Cir.2000) (plaintiffs “need not use particular words to plead in the alternative,” only “a formulation from which it can be reasonably inferred that this is what they were doing”); cf. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (recognizing that “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era”).

plaintiffs "need not use particular words to plead in the alternative," only "a formulation from which it can be reasonably inferred that this is what they were doing"


Context: The undisputed familiarity of Eastern Union with the WESTERN UNION mark and its well-known affiliation with money transfer services, imitation of the WESTERN UNION mark, and repeated refusals to discontinue use of a mimetic mark established that Eastern Union intended to capitalize on the reputation and infringe on the market created by Western Union. Although Western Union did not present evidence of actual customer confusion, the district court correctly concluded that proof of actual confusion was not required when the overwhelming evidence regarding the remaining factors supported a judgment in favor of Western Union.

refusing to reverse a finding of a likelihood of confusion between marks "based merely on the absence of evidence of actual confusion"

See Montgomery v. Noga, 168 F.3d 1282, 1302 (11th Cir.1999) (refusing to reverse a finding of a likelihood of confusion between marks “based merely on the absence of evidence of actual confusion”); see also Frehling, 192 F.3d at 1340 (evi dence of actual confusion “is not a prerequisite, and thus it is up to individual courts to assess this factor in light of the particular facts of each case”).

evi dence of actual confusion "is not a prerequisite, and thus it is up to individual courts to assess this factor in light of the particular facts of each case"


Context: Oregon law defines "income" for purposes of support payments, as, among other things, "any program or contract to provide substitute wages during times of unemployment or disability." ORS 25.010(7)(f); see also OAR 137-050-0340 (for purposes of support, "gross income includes income from any source including, but not limited to * * * disability insurance benefits" (emphasis added)). Accordingly, we have considered veterans' disability benefits in awarding spousal support, even where the recipient has waived military retirement pay to receive those benefits.

considering as income husband's disability benefits resulting from his waiver of his military pension

See, e.g., Murphy and Murphy, 151 Or App 649, 654, 950 P2d 377 (1997) (considering as income husband’s disability benefits resulting from his waiver of his military pension); see also Weakley and Weakley, 177 Or App 363, 365, 33 P3d 1045 (2001) (including husband’s veterans’ disability benefits as income for purposes of awarding spousal support).

including husband's veterans' disability benefits as income for purposes of awarding spousal support


Context: In his appeal to this Court, Jiang asserts generally that he testified in an "honest, tru[th] -- telling manner" and that he practices Falun Gong in the United States now. The IJ did not err in basing his adverse credibility determination, in part, on Jiang's failure to provide corroborative evidence of his practice of Falun Gong in the United States.

explaining that the identification and availability requirements articulated in Diallo only pertain "when the IJ or BIA cites inadequate corroboration as a basis for denying [relief] to an applicant who is otherwise credible" (alterations in original

See Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000) (stating that while “it is inappropriate to base a credibility determination solely on the failure to produce corroborative evidence!,][t]he presence or absence of corroboration may properly be considered in determining credibility” (emphasis added)); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 164 (2d Cir.2006) (explaining that the identification and availability requirements articulated in Diallo only pertain “when the IJ or BIA cites inadequate corroboration as a basis for denying [relief] to an applicant who is otherwise credible” (alterations in original)). Since Jiang fails to challenge any of the IJ’s other findings, those findings stand.

stating that while "it is inappropriate to base a credibility determination solely on the failure to produce corroborative evidence!,][t]he presence or absence of corroboration may properly be considered in determining credibility" (emphasis added


Context: We are left then with the sworn statements of the one building manager, Sam Lamaj, and the Plumlee employee Richard Webb. A review of the relevant cases indicates that the conduct which has been deemed intentionally deceptive has been supported by evidence which is not provided here, and itself appeared more egregious.

See, e.g., PPX Enterprises, 818 F.2d at 273 (allowing recovery of damages despite lack evidence of actual customer confusion where the products were “patently fraudulent, and the advertising accompanying those products was the vehicle employed to perpetrate the fraud”); cf. Johnson & Johnson*Merck, 960 F.2d at 299 (unwilling to extend the presumption of consumer confusion where evidence of deceptive intent in a false advertising claim was indirect and controverted).

allowing recovery of damages despite lack evidence of actual customer confusion where the products were "patently fraudulent, and the advertising accompanying those products was the vehicle employed to perpetrate the fraud"


Context: Although, in 1999, Sterenbuch was not able to prove the exact amount of damages for the first injury, in terms of lost contingent fees, he could have provided a reasonable estimate of his damages by presenting expert testimony establishing what likely would have transpired (and how much he likely would have recovered) had Goss and Smith not interfered with his relationship with his clients.

See Tull v. Gundersons, Inc., 709 P.2d 940, 943, 945 (Colo.1985) ("[allthough an award of damages cannot be based on mere speculation ..., once the fact of damage has been established with the requisite degree of certainty," ie., by a preponderance of evidence, "uncertainty as to the amount of damages will not bar recovery": proof of a fair and reasonable estimate of the amount of damages will suffice); cf. Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 845 A.2d 602, 613 (2004) (in a legal malpractice case, plaintiff can prove damages "through the use of expert testimony as to what as a matter of reasonable probability would have transpired") (quoting Lieberman v. Emp'rs Ins., 84 N.J. 325, 419 A.2d 417, 427 (1980)).


Context: * Disparity: The district court failed to consider that the sentence it imposed, which constituted a 49% reduction from the Guidelines minimum, would create significant disparity between Trina and other defendants with similar criminal histories convicted of similar offenses.

holding that the district court's failure to give consideration to the sentencing disparity that would result was another reason the defendant's sentence was unreasonable

See Guidry, 462 F.3d at 378 (holding that the district court’s failure to give consideration to the sentencing disparity that would result was another reason the defendant’s sentence was unreasonable); cf. Rita, 127 S.Ct. at 2464-65 (“[I]t is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.”).

"[I]t is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve SS 3553(a


Context: The adequacy of an agency's search for responsive records is measured by "the reasonableness of the, effort in light of the specific request." An agency is not obligated to search every record system.

See Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986) (noting a search is not presumed unreasonable simply because it fails to produce all relevant material); see also Perry v. Block, 684 F.2d 121, 128 (D.C.Cir.1982) (holding an agency need not demonstrate that all responsive documents were found and that no other relevant documents could possibly exist).


Context: Similarly, a citation issued by an officer in lieu of a custodial arrest is not a "formal accusation." Just as a warrantless custodial arrest does not, alone, commence a prosecution, a citation issued in lieu of an arrest is not the result of an independent probable cause determination and, therefore, does not mark the beginning of the prosecution.

noting that Rule 5(a) of the Tennessee Rules of Criminal Procedure requires those defendants arrested without a warrant be taken before a magistrate for the lodging of " 'formal' " charges by the filing of the affidavit of complaint and issuance of a warrant

See State v. Best, 614 S.W.2d 791, 795 (Tenn.1981) (holding in the case of a warrantless arrest that without a “followup” determination of probable cause either through the issuance of a warrant or a binding over to the grand jury “the criminal prosecution terminates”); see also Ferrante, 269 S.W.3d at 912 (noting that Rule 5(a) of the Tennessee Rules of Criminal Procedure requires those defendants arrested without a warrant be taken before a magistrate for the lodging of “ ‘formal’ ” charges by the filing of the affidavit of complaint and issuance of a warrant). Indeed, the Advisory Commission Comments to Rule 4 of the Tennessee Rules of Criminal Procedure note clearly that, even in cases of warrantless arrest, the arrest warrant issued upon the affidavit of complaint rather than the affidavit of complaint itself “still serves as the official charging instrument, issued after a judicial finding of probable cause, and gives notice of the charge which must be answered.” Tenn. R.Crim.

holding in the case of a warrantless arrest that without a "followup" determination of probable cause either through the issuance of a warrant or a binding over to the grand jury "the criminal prosecution terminates"


Context: A number of jurisdictions that have considered the issue have determined that statements made during such a medical interview are nontestimonial in nature because the primary purpose of the interview is for the care and treatment of the victim.

under a "reasonable witness" standard, the statements a sexual-assault victim made to the emergency-room physician were nontestimonial because the victim made the statements-- and the doctor elicited the statements-- primarily for the purposes of medical diagnosis and treatment

See, e.g., State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 (2004) (under a “reasonable witness” standard, the statements a sexual-assault victim made to the emergency-room physician were nontestimonial because the victim made the statements— and the doctor elicited the statements— primarily for the purposes of medical diagnosis and treatment); People v. Vigil, 127 P.3d 916 (Colo.2006) (a child’s statements to a doctor following a sexual assault were deemed nontestimonial because “from the perspective of an objective witness in the child’s position, it would be reasonable to assume that this examination was only for the purpose of medical diagnosis”); United States v. Peneaux, 432 F.3d 882 (8th Cir. 2005) (statements made to a physician seeking to give medical aid in the form of a medical diagnosis or treatment are presumptively nontestimonial); and State v. Stahl, 111 Ohio St.3d 186, 855 N.E.2d 834 (2006) (statements by a rape victim to emergency room nurse specializing in treating sexual-assault victims were deemed nontestimonial because to a reasonable person, the statements would appear to serve a primarily health-care-related function).

sexual assault nurse examiner and "self-described" forensic interviewer was acting as an agent of police when she interviewed molestation victim referred to her by police and police supervised the victim's visit

Cf. State v. Hooper, 145 Idaho 139, 176 P.3d 911 (2007) (sexual assault nurse examiner and “self-described” forensic interviewer was acting as an agent of police when she interviewed molestation victim referred to her by police and police supervised the victim’s visit).


a child's statements to a doctor following a sexual assault were deemed nontestimonial because "from the perspective of an objective witness in the child's position, it would be reasonable to assume that this examination was only for the purpose of medical diagnosis"


statements made to a physician seeking to give medical aid in the form of a medical diagnosis or treatment are presumptively nontestimonial


statements by a rape victim to emergency room nurse specializing in treating sexual-assault victims were deemed nontestimonial because to a reasonable person, the statements would appear to serve a primarily health-care-related function


Context: Notwithstanding the "circular" definition of the term, certain courts have found it "'extremely broad,' in that it clearly includes anything which may be considered a settlement payment."

noting that "a natural reading suggests ... this definition is 'extremely broad' "

Kaiser II, 952 F.2d at 1237 (noting that “a natural reading suggests ... this definition is ‘extremely broad’ ”); see also Resorts Int’l, 181 F.3d at 515 (concluding that “the term ‘settlement payment’ is a broad one that includes almost all securities transactions”).

concluding that "the term 'settlement payment' is a broad one that includes almost all securities transactions"


noting that while the "rhetoric of decisions" references this definition as being broad, "reality is different"

But see, Grafton, 321 B.R. at 539 (noting that while the “rhetoric of decisions” references this definition as being broad, “reality is different”).


Context: Under. Scott, the Sixth Amendment protects an uncounseled misdemeanor defendant not from a judgment of conviction but from the imposition of certain types of sentences. The appropriate remedy for a Scott violation, therefore, is vacatur of the invalid portion of the sentence, and not reversal of the conviction itself.

See United States v. Reilley, 948 F.2d 648, 654 (10th Cir.1991) (striking down portion of sentence imposed on uncounseled misdemeanor defendant that involved suspended term of imprisonment but affirming conviction and portion of sentence involving a fine); United States v. White, 529 F.2d 1390, 1394 (8th Cir.1976) (same).

"If an uncounseled defendant is sentenced to prison, the conviction itself is unconstitutional."

But see United States v. Eckford, 910 F.2d 216, 218 (5th Cir.1990) (“If an uncounseled defendant is sentenced to prison, the conviction itself is unconstitutional.”) (dictum).


Context: In Baucum we did not apply the Blackledge/Menna exception because Baucum challenged a sentencing statute. But subsequent cases have made clear that Drew waived his constitutional challenge to 18 U.S.C. SS 922(g)(8) because he failed to raise his challenge below.

'We do not reach David's Commerce Clause challenge to his 18 U.S.C. SS 922(g

See United States v. Badru, 97 F.3d 1471, 1476 (D.C.Cir.1996) (“[Bjecause Ishmeal Badru’s facial constitutional challenge to the ‘school-yard statute,’ ... is raised for the first time on appeal, it is barred by” Baucum, 80 F.3d 539.) (internal citation omitted); see also United States v. David, 96 F.3d 1477, 1482 (D.C.Cir.1996) (‘We do not reach David’s Commerce Clause challenge to his 18 U.S.C. § 922(g)(1) conviction because he failed to raise the claim in the lower court.”).

"[Bjecause Ishmeal Badru's facial constitutional challenge to the 'school-yard statute,' ... is raised for the first time on appeal, it is barred by" Baucum, 80 F.3d 539.


Context: Where there was a right to attorney fees, Utah courts have allowed the party who successfully prosecuted or defended against a claim to recover the fees attributable to those claims on which the party was successful.

See id. at 566 n. 10 (reasonable fee excludes amounts attributable to issues or claims on which party otherwise entitled to fee was unsuccessful); Stacey Proper ties v. Wixen, 766 P.2d 1080, 1085 (Utah Ct.App.1988) (defendant was entitled to attorney fees for the counterclaims on which he was successful as well as for his successful defense of plaintiff’s attempt to accelerate a promissory note), cert. denied, 779 P.2d 688 (Utah 1989); see also Graco Fishing & Rental Tools, Inc. v. Ironwood Exploration, Inc., 766 P.2d 1074, 1080 (Utah 1988) (grant of attorney fees was remanded for a determination of only those fees attributable to the pursuit of successful claims).

defendant was entitled to attorney fees for the counterclaims on which he was successful as well as for his successful defense of plaintiff's attempt to accelerate a promissory note


Context: "[T]here is no absolute rule regarding the number of years that can separate offenses. Rather, the court applies a reasonableness standard and examines the facts and circumstances of each case."

See also United States v. Dudley, 562 F.2d 965 (5th Cir.1977) (within six years); United States v. Zeidman, 540 F.2d 314 (7th Cir.1976) (five years); United States v. Barash, 412 F.2d 26 (2d Cir.) (five years), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969). But see United States v. Gilliland, 586 F.2d 1384 (10th Cir.1978) (prior Dyer Act convictions 14 to 34 years old insufficiently relevant to instant charge); United States v. Burkhart, 458 F.2d 201 (10th Cir.1972) (en banc) (prior Dyer Act convictions 4 and 15 years old insufficiently relevant).

Engleman, 648 F.2d at 479 (no abuse of discretion when district court admitted evidence of crime that defendant committed thirteen years before charged offense).


prior Dyer Act convictions 4 and 15 years old insufficiently relevant


Context: A third possibility, and the one that coincides with the Commissioner's findings and conclusions, is that the jury found the 1992 incident was neither an aggravation nor a recurrence, but rather a new injury distinct from claimant's prior injuries. Where an employee suffers unrelated injuries during different employments, the employer at the time of each accident becomes responsible for the respective workers' compensation benefits.

Gonzales v. Stanke-Brown & Assocs., 648 P.2d 1192, 1198 (N.M. Ct. App. 1982); see Kulp v. Sheraton Ritz Hotel, 450 N.W.2d 296, 298 (Minn. 1990) (administrative court did not exceed authority in attributing right-hand and shoulder injuries to first employer and left-hand and wrist injuries to second employer); cf. Port of Portland, 932 F.2d at 841 (liability will not be imposed on employer who did not contribute to causation of disability).