Context: See Admin. Record at 1198 (Kippley's September 18, 2009 email), 1268 (Rogers's affidavit). Thus, the evidence in this case distinguishes it from cases where a claimant relied on bare assertions, or where the record clearly disproved a claim of eligibility. See, e.g., Atrix Int'l Inc. v. Hartford Life Grp.

finding administrator had uncovered "overwhelming evidence" that claimant was not working full-time

Ins. Co., No. 06-4140, 2008 WL 151614, at *9 (D.Minn. Jan. 15, 2008) (affirming administrator’s denial where claimant stated he spent -30 hours per week “thinking and planning” for employer, despite total lack of evidence in support); see Fink v. Union Cent. Life Ins. Co., 94 F.3d 489, 491-92 (8th Cir.1996) (finding administrator had uncovered “overwhelming evidence” that claimant was not working full-time).

affirming administrator's denial where claimant stated he spent -30 hours per week "thinking and planning" for employer, despite total lack of evidence in support


Context: The State concedes that the trial court should not have based part of its ruling on allegations from the 2010 petition because it had been dismissed. But the State urges affirmance nonetheless because evidence related to the 2013 petition -- numerous discourteous text messages sent by Mr. Ardis -- independently supports the judgment and sentence.

affirming a. defendant's convictions for burglary and other crimes despite an error in convicting on a nolle prossed kidnapping charge

See, e.g., Wilkins v. State, 90 So.3d 305 (Fla. 1st DCA 2012) (affirming a. defendant’s convictions for burglary and other crimes despite an error in convicting on a nolle prossed kidnapping charge); but see Freccacreto v. State, 291 So.2d 630, 631 (Fla. 4th DCA 1974) (finding that a guilty judgment on nolle prossed charges violates the state constitution and is fundamental error and remanding for entry of an appropriate sentence on the remaining conviction).


Context: . Gibson's counsel objected to the suspicion-less search condition. He did not identify laclc-of-notice as a basis for the objection, but he did not have an opportunity to do so. The government is therefore incorrect that our review should be limited to plain error.

See United States v. Mancinas-Flores, 588 F.3d 677, 686 (9th Cir.2009) (”[T]he Rules do not require a defendant to force an objection or exception into the record.”); cf. United States v. Watson, 582 F.3d 974, 981-82 (9th Cir. 2009) (reviewing notice challenge for plain error where counsel was permitted to explain objection to condition of supervised release but identified only substantive objections).

"[T]he Rules do not require a defendant to force an objection or exception into the record."


Context: Other jurisdictions have concluded likewise when discussing child support obligations.

providing "custodial and noncustodial parents are not 'similarly situated' since, after divorce, the custodial parent's responsibility for the child's support as well as care is general and plenary, while the noncustodial parent's responsibility is usually limited to the requirements of the support order"

See Coghill v. Coghill, 836 P.2d 921, 929 (Alaska 1992) (stating that “the custodial and noncustodial parents are clearly not similarly situated for the purposes of child support”); see also Boris v. Blaisdell, 492 N.E.2d 622, 630 (Ill. App. 1986) (providing “custodial and noncustodial parents are not ‘similarly situated’ since, after divorce, the custodial parent’s responsibility for the child’s support as well as care is general and plenary, while the noncustodial parent’s responsibility is usually limited to the requirements of the support order”).

stating that "the custodial and noncustodial parents are clearly not similarly situated for the purposes of child support"


Context: Although the arbitration in this case was conducted pursuant to Islamic law, judicial review of any arbitration award is limited to those matters where jurisdiction is statutorily granted.

"In the absence of statute ... the decisions of common-law arbitrators are not subject to judicial review and supervision."

Univ. of Minn. v. Woolley, 659 N.W.2d 300, 308 (Minn.App.2003) (stating aggrieved school employee who choose to submit matter to arbitration is only entitled to limited judicial review under chapter 572), review denied (Minn. Jun. 17, 2003); see also Park Const. v. Indep. Sch. Dist. No. 32, 216 Minn. 27, 33, 11 N.W.2d 649, 653 (1943) (“In the absence of statute ... the decisions of common-law arbitrators are not subject to judicial review and supervision.”).


Context: The record before this court does not establish that, when Vegas filed this action on November 22, 2013, that date was more than six-months from when Vegas knew that the union was not going to arbitrate his grievance. A statute of limitations defense is an affirmative defense with respect to which a defendant asserting the defense bears the burden of proof. See Payan v. Aramark Mgmt. Servs.

"Because the statute of limitations is an affirmative defense, the defendant bears the burden of establishing by prima facie proof that the limitations period has expired since the plaintiffs claims accrued."

Ltd. P’ship, 495 F.3d 1119, 1122 (9th Cir.2007) (“because the statute of limitations is an affirmative defense, the defendant bears the burden of proving that the plaintiff filed beyond the limitations period”); Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1284 (9th Cir.1993) (“In every civil case, the defendant bears the burden of proof as to each element of an affirmative defense.”); see also Overall v. Estate of Klotz, 52 F.3d 398, 403 (2d Cir.1995) (“Because the statute of limitations is an affirmative defense, the defendant bears the burden of establishing by prima facie proof that the limitations period has expired since the plaintiffs claims accrued.”).

"because the statute of limitations is an affirmative defense, the defendant bears the burden of proving that the plaintiff filed beyond the limitations period"


"In every civil case, the defendant bears the burden of proof as to each element of an affirmative defense."


Context: P 18 Although Solomon asserted this argument for the first time in his motion for reconsideration, we will consider it because the trial court allowed Hatch to respond and held oral argument on the motion before ruling.

See Crown Life Ins. Co. v. Howard, 170 Ariz. 130, 132, 822 P.2d 483, 485 (App. 1991) (considering an argument raised for the first time on appeal because the trial court presumably considered the argument on its merits); cf. Ramsey v. Yavapai Family Advocacy Center, 225 Ariz. 132, 137-38, ¶ 18, 235 P.3d 285, 290-91 (App. 2010) (noting that we generally do not consider arguments raised for the first time in a motion for reconsideration because the “prevailing party below is routinely deprived of the opportunity to fairly respond”) (quoting Evans Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237, 240, ¶ 15, 159 P.3d 547, 550 (App. 2006)).

noting that we generally do not consider arguments raised for the first time in a motion for reconsideration because the "prevailing party below is routinely deprived of the opportunity to fairly respond"


Context: We have, therefore, held that a settlement for fraud in the sale of securities from 1975 to 1979 "is not the same as the claim that [the defendant] defrauded customers in the sale, purchase, and repurchase of other securities" in later years. Similarly, we have held that suits over later breaches of contract, financial transactions, and ship voyages are not barred by claim preclusion, even if the plaintiffs previously brought suit over earlier instances of this same conduct.

See Prime Mgmt. Co. v. Steinegger, 904 F.2d 811, 816 (2d Cir.1990) (prior action did not preclude later suit regarding breaches of contract that occurred subsequent to the filing of a prior suit); see also Greenberg, 968 F.2d at 168-70 (prior actions regarding earlier financial transactions did not preclude later suit over later financial transactions); Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90-91 (2d Cir.1997) (prior suit regarding pilots’ fees in previous voyages did not preclude a subsequent suit regarding pilots’ rights in ocean voyages occurring after those underlying the first suit).


prior suit regarding pilots' fees in previous voyages did not preclude a subsequent suit regarding pilots' rights in ocean voyages occurring after those underlying the first suit


Context: It is uncontroverted that BNSF has sold Kessler's locomotive to a third party and that the purchaser is not before the court. Kessler's request for an injunction against the sale is therefore moot and accordingly beyond our jurisdiction.

See Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 135 L.Ed.2d 453 (1996) (“an appeal should ... be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant any effectual relief whatever in favor of the appellant”) (internal quotation marks omitted); Bunn v. Werner, 210 F.2d 730, 731 (D.C.Cir. 1954) (injunction filed to prevent “a foreclosure sale of certain real estate” dismissed as moot after foreclosure sale had taken place); cf. FTC v. Weyerhaeuser Co., 665 F.2d 1072, 1077 (D.C.Cir.1981) (sale does not moot an appeal where all parties including the purchaser are before the court).

"an appeal should ... be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant any effectual relief whatever in favor of the appellant"


injunction filed to prevent "a foreclosure sale of certain real estate" dismissed as moot after foreclosure sale had taken place


Context: P 112 We agree with AECC, however, that the rights conferred by Article 15, Section 7 protect only a public service corporation's right to construct and operate lines to transmit and distribute electricity. Moreover, the provision does not confer any right to exclusively sell electricity.

deciding California constitutional provision does not permit "assertion of an exclusive franchise" and others may compete

See Russell, 233 U.S. at 202, 34 S.Ct. 517 (deciding California constitutional provision does not permit “assertion of an exclusive franchise” and others may compete); City of Mesa, 92 Ariz. at 100, 373 P.2d at 729 (concluding municipality could “freely compete” with SRP to provide electricity but for legislative prohibition); see also Mountain States, 132 Ariz. at 114, 644 P.2d at 268 (describing regulated monopoly as creation of legislature rather than constitution).


concluding municipality could "freely compete" with SRP to provide electricity but for legislative prohibition


Context: The aim of a compensatory damages award in a section 1983 case is to put the plaintiff in the same position he would have been in if the constitutional tort had not occurred. It therefore follows logically that an employee who has a due process right to a pre-termination hearing and who is discharged without being given one would be entitled to back pay from the date of his discharge to the earliest date the discharge could have taken effect had the proper procedures been followed.

See Carey, 435 U.S. at 253-54, 98 S.Ct. at 1046-47 (purpose of a section 1983 damages award is to compensate plaintiff for the injuries caused by the violation of his constitutional rights); Patterson v. Portch, 853 F.2d 1399, 1408 (7th Cir.1988) (“All [the employee] lost as a result of the constitutional violation was his salary between the day that [the employer] terminated him and the day on which his dismissal would have taken effect had [the employer] followed the prescribed procedures.”) (emphasis in original); but see Simien, 809 F.2d at 258 (no back pay can be awarded if the employee would have been fired anyway).


"All [the employee] lost as a result of the constitutional violation was his salary between the day that [the employer] terminated him and the day on which his dismissal would have taken effect had [the employer] followed the prescribed procedures."


Context: For the purposes of the instant motion, these complaints constitute protected activity under Title VII because, viewing the evidence in plaintiffs favor, it appears that plaintiff "had a good faith, reasonable belief that he was opposing an employment practice made unlawful by Title VII" when he lodged complaints regarding the purportedly hostile nature of his work environment. In addition, plaintiffs complaints clearly satisfy the "knowledge requirement" of the first prong of the prima facie standard.

finding that the plaintiffs internal complaints regarding co-workers' offensive comments satisfied the first prong of the prima facie standard

Gordon v. New York Bd. of Edue., 232 F.3d 111, 116 (2d Cir.2000) (“Neither [the Second Circuit] nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity.”); see also Reed v. AW. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir.1996) (finding that the plaintiffs internal complaints regarding co-workers’ offensive comments satisfied the first prong of the prima facie standard); Campbell v. Home Depot U.S.A., Inc., No. 03 Civ. 1421(KMK) (HBP), 2006 WL 839001, at *11 (S.D.N.Y.

"Neither [the Second Circuit] nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity."


Context: The fact that an action is taken with knowledge that it will cause a breach of contract does not suffice to show tor-tious interference with contract.

"one does not induce a second party to breach a contract with a third party when one merely enters into an agreement with the second party with knowledge that the second party is unable to perform both contracts"

McLinden v. Coco, 765 N.E.2d 606, 617 (Ind.Ct.App.2002) (“one does not induce a second party to breach a contract with a third party when one merely enters into an agreement with the second party with knowledge that the second party is unable to perform both contracts”); see also Indiana Health Ctrs., Inc. v. Cardinal Health Sys., Inc., 774 N.E.2d 992 (Ind.App.2002) (“[T]he mere fact that Cardinal hired Dr. Wolfe with knowledge that his employment would violate the Agreement’s non-compete clause does not amount to inducement of breach.”).

"[T]he mere fact that Cardinal hired Dr. Wolfe with knowledge that his employment would violate the Agreement's non-compete clause does not amount to inducement of breach."


Context: Assuming Ms. Perez's affidavit is accurate, she and Juror 79 saw each other in a store sometime around 2006, long before the jury was seated in this case. (R. 979, Salazar's Mot. for New Trial, Ms. Perez's Aff. PP 6-8.) The jury foreperson testified that Juror 79 reported recognizing one or more family members on the train or at a store during trial, but there is no evidence that they spoke to each other or interacted in any way. (5/30/08 Tr. at 31-33.) This type of random, innocuous contact is not the type of extraneous influence, such as the attempted bribery of a juror or direct threats made to a juror, requiring a hearing under Remmer.

no hearing required where potential extraneous influence was "not a third-party contact of the sort described in Remmer"

See Whitehead, 263 F.3d at 723 (no hearing required where potential extraneous influence was “not a third-party contact of the sort described in Remmer”); United States v. Thibodeaux, 758 F.2d 199, 202-03 (7th Cir.1985) (no error where district court declined to conduct inquiry into juror reaction to an extraneous communication because, unlike Remmer, the comment heard by a juror was ambiguous and innocuous); see also Wright v. Angelone, 151 F.3d 151, 160 n. 6 (4th Cir1998) (limiting Remmer to cases where defendant introduced “competent evidence that there was an extrajudicial communication or contact, and that it was more than innocuous interventions.”).

limiting Remmer to cases where defendant introduced "competent evidence that there was an extrajudicial communication or contact, and that it was more than innocuous interventions."


no error where district court declined to conduct inquiry into juror reaction to an extraneous communication because, unlike Remmer, the comment heard by a juror was ambiguous and innocuous


Context: Egregious misconduct may or may not be sufficient to raise a reasonable doubt about the convictions, depending on the efficacy of the action taken by the judge to eradicate the apparent prejudice.

finding no abuse of discretion in allowing a prosecutor to use a PowerPoint that consisted of pictures provided in discovery and later admitted into evidence at trial and descriptive text echoing the prosecutor's oral statements in opening to which there was no objection

See, e.g., Dolphy v. State, 288 Ga. 705, 707 S.E.2d 56, 57-58 (2011) (where the trial court sustained the defense objection to PowerPoint slides declaring “Defendant’s Story Is a Lie” and asserting that “People Lie When They Are Guilty” and gave an “immediate corrective action, ordering that the slides be taken down” and an adequate curative instruction); cf. State v. Sucharew, 205 Am. 16, 66 P.3d 59, 64 (Ct.App.2003) (finding no abuse of discretion in allowing a prosecutor to use a PowerPoint that consisted of pictures provided in discovery and later admitted into evidence at trial and descriptive text echoing the prosecutor’s oral statements in opening to which there was no objection); but cf. In the Matter of Personal Restraint of Glasmann, 175 Wash. 2d 696, 286 P.3d 673, 678 (2012) (reversing convictions based on the prosecutor’s use of a PowerPoint in summation that included a “mug shot” of the defendant with accompanying text declaring him guilty on the ground that “the misconduct was so flagrant and ill intentioned that an instruction would not have cured the prejudice”).

where the trial court sustained the defense objection to PowerPoint slides declaring "Defendant's Story Is a Lie" and asserting that "People Lie When They Are Guilty" and gave an "immediate corrective action, ordering that the slides be taken down" and an adequate curative instruction


reversing convictions based on the prosecutor's use of a PowerPoint in summation that included a "mug shot" of the defendant with accompanying text declaring him guilty on the ground that "the misconduct was so flagrant and ill intentioned that an instruction would not have cured the prejudice"


Context: It is worth noting that a violation of M.G.L.A. 265 SS 19(b) exposes an offender to a potential life sentence. Also, the purpose of both the Massachusetts and Pennsylvania statutes is the same, to protect citizens from serious injury or the threat thereof and to deter violent conduct.

federal offense of armed bank robbery substantially equivalent to Pennsylvania's robbery statute where "The conduct prohibited by both statutes, the resort to such force and intimidation to accomplish the individual's purpose of taking, is the same."

See also Taylor, 831 A.2d at 666 (federal offense of armed bank robbery substantially equivalent to Pennsylvania’s robbery statute where “The conduct prohibited by both statutes, the resort to such force and intimidation to accomplish the individual’s purpose of taking, is the same.”) (citation and footnote omitted).

finding New York's and Pennsylvania's robbery statutes substantially equivalent where "a review of the statutes reveals that both offenses prohibit the same conduct, i.e., employing intimidation through threat of bodily harm to facilitate a theft, and both statutes advance the public's interest in protecting citizens from serious injury or the threat thereof'

See Ward, 856 A.2d at 1278 (finding New York’s and Pennsylvania’s robbery statutes substantially equivalent where “a review of the statutes reveals that both offenses prohibit the same conduct, i.e., employing intimidation through threat of bodily harm to facilitate a theft, and both statutes advance the public’s interest in protecting citizens from serious injury or the threat thereof’).


Context: Without busying myself here elaborating on the materiality of the purported testimony, it is sufficient to note that a military lawyer formerly assigned to represent Ross has averred that during his representation of Ross in military court-mar tial proceedings, apparently grounded in the same facts as the present indictment, he obtained exculpatory statements from Thomas, Boyd, and Rose. This showing is sufficient to warrant the depositions.

defendant must show proposed testimony "sufficiently favorable" to warrant Rule 15(a

Cf. United States v. Taylor, 693 F.2d 919, 924 (9th Cir.1982) (defendant must show proposed testimony “sufficiently favorable” to warrant Rule 15(a) deposition).

United States v. Wilson, 601 F.2d 95 (3rd Cir.1979) (relevant, potentially exculpating testimony may be preserved by Rule 15(a) deposition).


Context: Though contracts for construction of the outfall tunnel had been entered by that time and construction had begun, the 1993 BA satisfied the spirit, if not the letter, of SS 7(c). To recommend that this Court terminate the outfall tunnel project simply for an alleged violation of procedure, despite no evidence of a likely threat to endangered species, strikes this Court as an exaltation of form over substance. It also appears to be at odds with caselaw.

But see TVA v. Hill, 437 U.S. at 173-74, 98 S.Ct. at 2291 (court required to issue injunction to prevent start-up of dam where dam would cause extinction of endangered species and violate letter and purpose of ESA).

See Weinberger v. Romero-Barcelo, 456 U.S. 305, 314-15, 102 S.Ct. 1798, 1804, 72 L.Ed.2d 91 (1982) (court not required to issue injunction to stop technical violations of Federal Water Pollution Control Act where discharge of military ordnance not polluting waters and, therefore, not in tension with purpose of statute). Cf Amoco Production Co. v. Gambell, 480 U.S. 531, 544, 107 S.Ct. 1396, 1403, 94 L.Ed.2d 542 (1987) (criticizing court for giving too much weight to procedural violation of Alaska National Interest Lands Conservation Act and not enough to purpose of statute which had not been violated).


criticizing court for giving too much weight to procedural violation of Alaska National Interest Lands Conservation Act and not enough to purpose of statute which had not been violated


Context: The record indicates that Doe's supervisor and the deciding official lost confidence in Doe's honesty and integrity, questioned his judgment and ability to perform his duties, and found Doe's misconduct serious because they believed it violated Ohio state law. Because it seems probable that Doe was disciplined at least in part because the deciding official mistakenly believed that his misconduct was in violation of the law, it is necessary to know what conclusion the decision makers would have reached, and what penalty they would have imposed, if the possibility that the conduct was criminal was removed from consideration.

See Hayes, 727 F.2d at 1539 (“it is not our duty to find nexus but rather to decide ... whether the [MSPB] affirmance of the agency conclusion on the nexus issue meets the statutory criteria for our affirmance.”); see also Lachance v. Devall, 178 F.3d 1246 (Fed.Cir.1999) (where there are several charges leading to a penalty, and not all the charges are sustained, it is necessary to consider what penalty would have been appropriate in light of the dropped charges).

"it is not our duty to find nexus but rather to decide ... whether the [MSPB] affirmance of the agency conclusion on the nexus issue meets the statutory criteria for our affirmance."


Context: (Id. at 36-51, Page ID # 14940-55.) Indeed, evidence at trial showed that all three contractors, to varying degrees, considered Dimora to be a Mend. Still, the evidence demonstrated that it was not Mendship alone that motivated the exchange of things of value for political favors. The testimony of Valentin, Randazzo, and Zavarella, together with Dimora's "as needed" official actions, supported the jury's determination that- Dimora illegally received things of value in exchange for official acts.

"A single conspiracy may have several purposes, but if one of them -- -whether primary or secondary -- be the violation of a federal law, the conspiracy is unlawful under federal law."

See Anderson v. United States, 417 U.S. 211, 226, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974) (“A single conspiracy may have several purposes, but if one of them — -whether primary or secondary — be the violation of a federal law, the conspiracy is unlawful under federal law.”); United States v. Woodward, 149 F.3d 46, 71 (1st Cir.1998) (A defendant may be prosecuted for fraud if he has a dual intent, “i.e., if he is found to have intended both a lawful and an unlawful purpose .to some degree.”); see also United States v. Coyne, 4 F.3d 100, 113 (2d Cir.1993) (on bribery and extortion counts, jury charge stating that “defendant accepted or solicited the thing of value, at least in part, for or because of his conduct or intending to be influenced in connection with any business or transaction of [the] County” was appropriate in light of the defendant’s argument that he was motivated by friendship).

on bribery and extortion counts, jury charge stating that "defendant accepted or solicited the thing of value, at least in part, for or because of his conduct or intending to be influenced in connection with any business or transaction of [the] County" was appropriate in light of the defendant's argument that he was motivated by friendship


A defendant may be prosecuted for fraud if he has a dual intent, "i.e., if he is found to have intended both a lawful and an unlawful purpose .to some degree."


Context: The agency did not abuse its discretion or violate Cortez's due process right to counsel in denying Cortez's request for a second continuance for failure to show good cause, or in granting the motion to withdraw, where he had more than a year to find representation after his prior counsel withdrew.

See Ahmed, 569 F.3d at 1012; Burnt v. Gonzales, 403 F.3d 1094, 1099-1100 (9th Cir. 2005) (listing factors to be considered when deciding what constitutes a reasonable time to obtain counsel); see also Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th Cir. 1986) (failure to obtain counsel after two continuances over four months simply meant alien was “unable to secure counsel at his own expense”).

failure to obtain counsel after two continuances over four months simply meant alien was "unable to secure counsel at his own expense"


Context: Section 161.001(1)(E) of the Family Code provides that parental rights may be terminated if the parent has "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child."

stating that although endangerment requires more than threat of metaphysical injury or possible ill effects of less-than-ideal family environment, it is not necessary that parent's conduct be directed at child or that child actually suffers injury

J.O.A., 283 S.W.3d at 345 (holding that father’s history of domestic violence toward mother, admitted marijuana use, and previous incarceration on criminal charges that were later dismissed constituted legally sufficient evidence of endangerment); see Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987) (stating that although endangerment requires more than threat of metaphysical injury or possible ill effects of less-than-ideal family environment, it is not necessary that parent’s conduct be directed at child or that child actually suffers injury); Robinson v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (stating that “to endanger” means to expose child to loss or injury or to jeopardize child’s emotional or physical health); In re M.N.G., 147 S.W.3d 521, 536 (Tex.App.-Fort Worth 2004, pet. denied) (holding that courts may look to parental conduct both before and after child’s birth to determine whether termination is appropriate, that parent’s conduct need not be directed at child, and that danger to child’s well-being may be inferred from parental misconduct standing alone).

holding that father's history of domestic violence toward mother, admitted marijuana use, and previous incarceration on criminal charges that were later dismissed constituted legally sufficient evidence of endangerment


Context: As we just explained, by the time Agent Reynolds encountered Thompson, he clearly had reason to believe that Thompson was participating in a drug trafficking operation. Based on that belief, it was reasonable for Agent Reynolds to suspect that Thompson was armed because guns are known tools of the drug trade, as our cases have recognized.

"[I]t is widely known that guns and drugs go hand in hand."

See, e.g., United States v. Gulley, 722 F.3d 901, 909 (7th Cir. 2013) (“[I]t is widely known that guns and drugs go hand in hand.”); see also United States v. Askew, 403 F.3d 496, 507 (7th Cir. 2005) (recognizing the “inherent danger in stopping those suspected of drug trafficking, for which guns are known tools of the trade.”).

recognizing the "inherent danger in stopping those suspected of drug trafficking, for which guns are known tools of the trade."


Context: . At oral argument, the Secretary indicated that although a tribe has civil regulatory jurisdiction over lands taken into trust, a state may seek to enforce its laws -- to the extent they are not preempted by federal law -- on trust lands either by agreement with the tribe or by seeking a determination in federal court that the State's interests with respect to enforcing a particular regulation outweigh the interests of the tribe and the federal government in fostering tribal self-government.

"When ... state interests outside the reservation are implicated, States [sometimes] may regulate the activities even of tribe members on tribal land."

See Hicks, 533 U.S. at 362, 121 S.Ct. 2304 ("When ... state interests outside the reservation are implicated, States [sometimes] may regulate the activities even of tribe members on tribal land.”); see also id. at 364, 121 S.Ct. 2304 (holding that state officers may execute on tribal lands process related to off-reservation violations of state law); Washington v. Confederated Tribes of Colville, 447 U.S. 134, 151, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (explaining that the state could require Indian tribes to collect taxes on sales of cigarettes to non-Indians). That issue is beyond the scope of this opinion.


explaining that the state could require Indian tribes to collect taxes on sales of cigarettes to non-Indians


Context: A court may give an initial aggressor instruction if the evidence will support a reasonable inference that the defendant initiated the physical conflict by using or threatening the imminent use of unlawful physical foree.

See People v. Roadcap, 78 P.3d 1108, 1113 (Colo.App.2003) ("A defendant must initiate the physical conflict to be the initial aggressor."); cf. People v. Jones, 675 P.2d 9, 16 (Colo.1984) ("The Colorado law of self-defense requires that there be some evidence showing that the victim, as the initial aggressor, used or threatened the imminent use of unlawful physical foree against the defendant.").


Context: We find no error in the trial court's determination that Gaskin has not suffered prejudice from counsel's alleged deficient performance. As the trial court noted, because Dr. Krop testified at the eviden-tiary hearing that his diagnosis of Gaskin would have changed little if counsel had given him Gaskin's school records, Gaskin has not met his burden of showing that but for counsel's alleged deficiency, the result of the penalty phase would have been different.

See Breedlove v. State, 692 So.2d 874, 877 (Fla.1997) (holding that because the psychologists testified that their opinions would remain unchanged even considering the additional information, there was not a reasonable probability that the result of the penalty phase would have been different); see also Brown v. State, 755 So.2d 616, 636 (Fla.2000) (holding that trial counsel’s performance was not deficient for failing to give a mental health expert additional information because the expert testified at the evidentiary hearing that the collateral data would not have changed his testimony).

holding that trial counsel's performance was not deficient for failing to give a mental health expert additional information because the expert testified at the evidentiary hearing that the collateral data would not have changed his testimony


Context: This Court has often invalidated procedural practices which infringe on a defendant's right to be treated in a manner that comports with principles of fundamental fairness, even though no constitutional violation has occurred.

See also State v. Biegenwald, supra, 106 N.J. at 53 (holding that failure to charge that jury must find aggravating factors outweigh mitigating factors beyond a reasonable doubt violates fundamental fairness and requires reversal of death sentence).

See, e.g., State v. Czachor, supra, 82 N.J. at 402; State v. Tropea, 78 N.J. 309, 313 (1978) (declining to hold that double jeopardy bars retrial of speeding offense but finding that retrial was barred by considerations of fundamental fairness); State v. Gregory, 66 N.J. 510, 519 (1975) (prohibiting multiple prosecution for acts arising out of same arrest under court’s supervisory power to ensure fairness in the administration of justice, although rejecting constitutional attack); State v. De Bonis, 58 N.J. 182 (1971) (as a matter of policy, not due process, defendant who appeals from conviction entered in municipal court and receives trial de novo in county court may not receive harsher sentence on retrial). We find such considerations of fairness clearly no less compelling in a capital case.


prohibiting multiple prosecution for acts arising out of same arrest under court's supervisory power to ensure fairness in the administration of justice, although rejecting constitutional attack


as a matter of policy, not due process, defendant who appeals from conviction entered in municipal court and receives trial de novo in county court may not receive harsher sentence on retrial


Context: His eonclusory allegation without "specific, detailed facts" is not sufficient to demonstrate past persecution. Moreover, Yasmeen relied solely on Mirza's claims of persecution and did not provide any evidence that she had personally been harmed or detained in Pakistan; therefore, she cannot demonstrate past persecution.

"[TJhere are no derivative beneficiaries for an application for withholding of removal."

See Arif v. Mukasey, 509 F.3d 677, 681 n.15 (5th Cir. 2007) (“[TJhere are no derivative beneficiaries for an application for withholding of removal.”) (internal quotation marks and citations omitted); see also Majd, 446 F.3d at 595 (stating that an applicant cannot base her fear of persecution solely on general conditions of violence and civil unrest).


Context: Under Federal Rule of Civil Procedure 71.1(h), determination of any scope of the project issue is the province of the judge, not the jury.

stating that the judge decides "whether the evidence warrants application" of the scope of the project rule and "whether or not any change in value attributable to the project should be included or disregarded"

See Reynolds, 397 U.S. at 19-20, 90 S.Ct. 803 (“[I]t is for the judge to tell the jury the criteria it must follow in determining what amount will constitute just compensation, and that in order to do so he must decide the ‘scope-of-the-project’ issue as a preliminary matter.”); see also United States v. 320.0 Acres of Land, 605 F.2d 762, 809 (5th Cir.1979) (stating that the judge decides “whether the evidence warrants application” of the scope of the project rule and “whether or not any change in value attributable to the project should be included or disregarded”). Once the judge decides the scope of the project rule applies and sets the criteria for its application, it is for the jury to decide whether there in fact has been any increase or decrease in value due to the project, and by how much, on the basis of the evidence presented it. 320.0 Acres of Land, 605 F.2d at 809.

"[I]t is for the judge to tell the jury the criteria it must follow in determining what amount will constitute just compensation, and that in order to do so he must decide the 'scope-of-the-project' issue as a preliminary matter."


Context: While we generally review eviden-tiary issues for abuse of discretion, there is an on-going dispute in this circuit concerning the proper standard of review of Rule 404(b) evidence.

noting the "longstanding intra-circuit conflict regarding the appropriate standard of review for evidentiary decisions under Rule 404(b

See United States v. Clay, 667 F.3d 689, 703 (6th Cir.2012) (Kethledge, J., dissenting) (noting the “longstanding intra-circuit conflict regarding the appropriate standard of review for evidentiary decisions under Rule 404(b)”); see also United States v. Chalmers, 554 Fed.Appx. 440, 449 (6th Cir.2014) (noting the “disagreement in this circuit as to the standard of review for evidentiary questions under Federal Rule of Evidence 404(b)”).

noting the "disagreement in this circuit as to the standard of review for evidentiary questions under Federal Rule of Evidence 404(b


Context: "[SJubstantive due process ensures that [a state proceeding which results in a deprivation of property] is not arbitrary and capricious." Although the First Circuit routinely has rejected substantive due process claims in the zoning and land-use contexts, it has "left the door slightly ajar for federal relief in truly horrendous situations."

finding "vague" complaints of "a pattern of selective and excessive enforcement of municipal regulations" were not conscience-shocking

Nestor Colon Medina, 964 F.2d at 45; accord Licari, 22 F.3d at 350; Collier v. Town of Harvard, No. 95-cv-11652, 1997 WL 33781338, at *5 (D.Mass. Mar. 28, 1997); see Chongris, 811 F.2d at 43 (noting “even abridgments of state law [in the land-use context] committed in bad faith do not necessarily amount to constitutional deprivation of due process,” but acknowledging that there could exist a “type of egregious official behavior which could conceivably work a breach of the due process clause”); cf. Gianfrancesco v. Town of Wrentham, 712 F.3d 634 (1st Cir.2013) (finding “vague” complaints of “a pattern of selective and excessive enforcement of municipal regulations” were not conscience-shocking).

noting "even abridgments of state law [in the land-use context] committed in bad faith do not necessarily amount to constitutional deprivation of due process," but acknowledging that there could exist a "type of egregious official behavior which could conceivably work a breach of the due process clause"


Context: Specifical-' ly, Sewell contends that the statute did not apply because he did not possess the required mental state and he went to trial solely to preserve a legal challenge to the district court's pre-trial exclusion of evidence regarding his intoxication. Both of these arguments concern Sewell's denial of an essential factual element of guilt by contending that he was too high on crack cocaine to form the necessary criminal intent, and there is some controversy whether the sentencing reduction is available in these circumstances.

upholding denial of Section 3E1.1 reduction based in part on defendant's defense that he lacked specific intent

See United States v. Paredes-Batista, 140 F.3d 367, 381 (2d Cir.1998) (upholding denial of Section 3E1.1 reduction based in part on defendant’s defense that he lacked specific intent).

upholding application of Section 3E1.1 reduction where defendant "contended that his drunkenness rendered him incapable of forming the requisite mens rea" and thus essentially challenged the applicability of statute to his conduct

But see United States v. Gauvin, 173 F.3d 798, 806 (10th Cir.), cert. denied, 528 U.S. 906, 120 S.Ct. 250, 145 L.Ed.2d 210 (1999) (upholding application of Section 3E1.1 reduction where defendant “contended that his drunkenness rendered him incapable of forming the requisite mens rea” and thus essentially challenged the applicability of statute to his conduct); United States v. Big Crow, 898 F.2d 1326, 1330 (8th Cir.1990) (same).


Context: (See Second Am. Compl. PP 12, 41.) Nevertheless, to the extent Plaintiffs may seek any such monetary damages against Defendants in their official capacities, the Court agrees that monetary damages are not recoverable.

"[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office."

See, e.g., Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (“[A] suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.”); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.”).

"[A] suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment."


Context: This civil trademark infringement action involves issues that are far more banal than the subject matters of the criminal trials in which pretrial publicity has presented serious constitutional problems. And, as we have long held, pretrial publicity is less likely to threaten the fairness of trial in a large metropolitan area.

"Given this large, diverse pool of potential jurors, the suggestion that 12 impartial individuals could not be empaneled is hard to sustain."

See Hunt, 872 F.2d at 295 (concluding that although double murder trial “may involve lurid or inflammatory subject matter, San Mateo County is the type of populous, heterogeneous metropolitan area where prejudicial publicity is less likely to endanger the defendant’s right to a fair trial”); CBS, 729 F.2d at 1181-82; Associated Press v. U.S. Dist. Court, 705 F.2d 1143, 1146 (9th Cir. 1983); see also Skilling v. United States, 561 U.S. 358, 382, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (“Given this large, diverse pool of potential jurors, the suggestion that 12 impartial individuals could not be empaneled is hard to sustain.”).

concluding that although double murder trial "may involve lurid or inflammatory subject matter, San Mateo County is the type of populous, heterogeneous metropolitan area where prejudicial publicity is less likely to endanger the defendant's right to a fair trial"


Context: Neither the quantity of narcotics nor possession of a firearms is an element of the offense for which Defendant was convicted. While the sentencing guidelines account for these factors in calculating the offense level, the Supreme Court has recognized that there is no right to jury trial on sentencing factors.

McMillan, 477 U.S. at 93, 106 S.Ct. at 2420 (no right to jury trial on weapon possession which state treated as sentencing consideration).

See also McDonald v. Massachusetts, 180 U.S. 311, 313, 21 S.Ct. 389, 390, 45 L.Ed. 542 (1901) (no right to jury trial on habitual offender status which state treated as sentencing factor).


Context: In Hider I we rejected Hider's challenge to the unannounced entry into his studio, holding that there is no "knock and announce" requirement in Maine and "no prohibition against forcible entry if the circumstances warrant it." The court in Wilson held that the common law "knock and announce" principle forms a part of the Fourth Amendment reasonableness inquiry.

See Thompson v. State, 625 A.2d 299, 300 (Me. 1993) (new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced); see also State v. Bouchles, 457 A.2d 798, 801 (Me.1983) (modifications of search and seizure rules are applied to pending cases).


Context: The Second Circuit has interpreted Brown as precluding state law employment discrimination claims against other federal employers.

Employee's claims under Human Rights Laws of State and City of New York barred because Title VII provided the sole remedy for federal employees asserting employment discrimination claims

Rivera v. Heyman, 157 F.3d 101, 104-05 (2d Cir.1998) (Employee’s claims under Human Rights Laws of State and City of New York barred because Title VII provided the sole remedy for federal employees asserting employment discrimination claims); Annis v. County of Westchester, 36 F.3d 251, 255 n. 4 (2d Cir.1994) (§ 1983 claim against a municipal government permitted to survive with observation that “[i]t is equally clear that federal employees are restricted to Title VII when complaining of employment discrimination.”); see also DiPompo v. West Point Military Academy, 708 F.Supp. 540, 544 (S.D.N.Y.1989) (relying on Brown, court concluded that Title VII preempts all other statutory remedies for employment discrimination for federal employees and dismissed claims arising under various other federal and state statutes).


SS 1983 claim against a municipal government permitted to survive with observation that "[i]t is equally clear that federal employees are restricted to Title VII when complaining of employment discrimination."


Context: Thus providing for relief on this basis does not frustrate the preservation of error rule. In addition, this court is not willing or able to deny postconviction relief from ineffective counsel to avoid offending the preservation of error rule.

See Strickland, 104 S.Ct. at 2063 (the sixth amendment right to effective assistance of counsel exists and is needed to protect the fundamental right to a fair trial); see also, Menendez v. State, 562 So.2d 858 (Fla. 1st DCA 1990) (remanding for an evidentiary hearing to determine whether counsel was ineffective for failing to preserve an issue for appeal).


Context: Further, because Marshall has failed to identify a knowing violation of clearly established due process rights, as defined by Indiana law or the Seventh Circuit, the individual Defendants are also entitled to qualified immunity against Marshall's due process claims.

See Saucier v. Katz, 533 U.S. 194, 236, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (holding that government officials receive qualified immunity unless: their conduct violated a constitutional right, and the law to this effect was “clearly established” under then-existing law such that a reasonable official would have known that his behavior was unlawful); but see Pearson v. Callahan, 555 U.S. 223, 226, 238-39, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (holding that the Saucier test is not mandatory, particularly at the pleading stage, where facts must first be developed to determine whether a constitutional right was violate).

holding that government officials receive qualified immunity unless: their conduct violated a constitutional right, and the law to this effect was "clearly established" under then-existing law such that a reasonable official would have known that his behavior was unlawful


Context: The protected statement was made eleven months before the first lockout and the initiation of the Internal Affairs investigations. Although an inference from temporal proximity would have been stronger had the gap in time been smaller, an eleven-month gap in time is within the range that has been found to support an inference that an employment decision was retaliatory.

But see Keyser, 265 F.3d at 752 (finding that, where there was a two-year gap between protected speech and an adverse action, the proximity in time did not in itself give rise to an inference of retaliation).

noting that undue focus on timing distorts the sufficiency of evidence analysis, which is a "fact-bound, common-sense inquiry"

See id. at 1212(finding retaliation where an employer terminated an employee three years after the employee began openly criticizing the department); see also Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1566 (11th Cir.1995) (noting that undue focus on timing distorts the sufficiency of evidence analysis, which is a “fact-bound, common-sense inquiry”).


Context: [See AR 115-116, 142], Plaintiffs uncontroverted testimony was that he either obtained those jobs with the assistance of relatives or actually worked for relatives. Thus, the record as a whole does not support defendant's contention that plaintiffs work history is materially inconsistent with an IQ signifying mild mental retardation.

holding that where the claimant had worked for 22 years in a steel drum factory and as a security guard for about a year, the claimant's ability "to maintain a job for most of his adult life" called his mental retardation into doubt

See Christner, 498 F.3d at 794 (holding that the claimant’s intermittent work history as a tree trimmer supported his IQ); Bailey v. Apfel, 230 F.3d 1063, 1065 (8th Cir.2000) (holding that the ALJ erred in rejecting the IQ of a claimant whose “work history was limited primarily to working for his father”); Brown, 948 F.2d at 270 (holding that the claimant’s ability to log mileage, hours worked, and the places he drove in his job as a truck driver were not inconsistent with a valid IQ of 68); see generally Fanning, 827 F.2d at 634 (recognizing that if plaintiff otherwise meets section 12.05C, he “must be found disabled” without consideration of his work history as a laundry loader, janitor, and dishwasher); cf. Williams, 970 F.2d at 1185 (holding that where the claimant had worked for 22 years in a steel drum factory and as a security guard for about a year, the claimant’s ability “to maintain a job for most of his adult life” called his mental retardation into doubt).

holding that the claimant's intermittent work history as a tree trimmer supported his IQ


holding that the ALJ erred in rejecting the IQ of a claimant whose "work history was limited primarily to working for his father"


holding that the claimant's ability to log mileage, hours worked, and the places he drove in his job as a truck driver were not inconsistent with a valid IQ of 68


Context: The Court's affirmance of the bankruptcy court's orders has been appealed. Accordingly, the Court will not reconsider the issue regarding Appellant's rights, if any, to a portion of the $2 million, as this issue was previously raised by Appellant, considered and ruled upon by the Court, and is currently under review.

See Schwartz v. NMS Industries, Inc., 575 F.2d 553, 554-55 (5th Cir.1978) (noting that a decision of a legal issue or issues by an appellate court establishes the law of the case and must be followed in all subsequent proceedings in the same case, in the trial court, or on a later appeal in the appellate court); see also LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) (when there are multiple appeals taken in the course of a single piece of litigation, law of the case doctrine holds that decisions rendered on the first appeal should not be revisited on subsequent trips to the appellate court) (internal citations omitted).


Context: Detective McGrew concluded, based on his experience, that this activity fit the modus operandi of a child molester and it was likely that Flake would also possess child pornography in his home.

"[i]t is well established that a location can be searched for evidence of a crime even if there is no probable cause to arrest the person at that location."

See also United States v. Hay, 231 F.3d 630, 635 (9th Cir.2000) (“[i]t is well established that a location can be searched for evidence of a crime even if there is no probable cause to arrest the person at that location.”).

"if the government presents expert opinion about the behavior of a particular class of persons, for the opinion to have any relevance, the affidavit must lay a foundation which shows that the person subject to the search is a member of the class"

See United States v. Weber, 923 F.2d 1338, 1345 (9th Cir.1991) (“if the government presents expert opinion about the behavior of a particular class of persons, for the opinion to have any relevance, the affidavit must lay a foundation which shows that the person subject to the search is a member of the class”); United States v. Gil, 58 F.3d 1414, 1418 (9th Cir.1995) (“[Wjhen interpreting seemingly innocent conduct, the court issuing the warrant is entitled to rely on the training and experience of police officers.”).


"[Wjhen interpreting seemingly innocent conduct, the court issuing the warrant is entitled to rely on the training and experience of police officers."


Context: P23 The court's order in the foreclosure action that the price Purchasers paid for the home was "grossly inadequate" and "shocked the Court's [conscience]" was not appealed and has become final. On that basis alone, the superior court in this case could have correctly concluded that as a matter of law, Purchasers failed to "pay value" for the home, within the meaning of Exclusion 5.

purchaser must pay "a present equivalent" for purposes of recording statute

See Alexander, 77 Ariz. at 99, 267 P.2d at 735 (purchaser must pay “a present equivalent” for purposes of recording statute); West, 299 F.Supp. at 668 (one who pays a “grossly inadequate” price for real property is not a bona fide purchaser); see also Krohn, 203 Ariz. at 214, ¶ 38, 52 P.3d at 783 (trustee s sale may be set aside if price is “grossly inadequate”); Homecraft, 119 Ariz. at 302, 580 P.2d at 763 (foreclosure sale may be set aside if price “is so gross as to be proof of fraud or shock the conscience of the court”).

trustee s sale may be set aside if price is "grossly inadequate"


foreclosure sale may be set aside if price "is so gross as to be proof of fraud or shock the conscience of the court"


one who pays a "grossly inadequate" price for real property is not a bona fide purchaser


Context: In conducting this review, "[i]t is not our job to weigh the evidence." Accordingly, disputed questions of fact must be resolved in favor of the non-moving party at the summary judgment stage.

"[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment"

See Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979) (holding that summary judgment is not appropriate if the resolution of material issues depends upon credibility determinations); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment”); Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294, 305 (4th Cir.2012) (credibility determinations are not part of summary judgment proceedings).


Context: Additional procedures for State and local enforcement are present, as well, within the local by-law and G. Since the commission has temporized and handled the matter in a piecemeal fashion, and Yellin completed the work prior to the issuance of the decision, now under appeal, the question before us has been reduced to an abstraction. It no longer reflects whether the commission intends to seek enforcement and, as a practical matter, is without effect.

"A regulatory takings claim often is not mature until the validity of the challenged local regulation has been determined"

See also Steinbergh v. Cambridge, 413 Mass. 736, 740 (1992), cert. denied, 508 U.S. 909 (1993) (“A regulatory takings claim often is not mature until the validity of the challenged local regulation has been determined”).

See Green v. Brookline, 53 Mass. App. Ct. 120, 123 (2001) (issue preclusion does not apply if prior decisions not final).


Context: The converse of the rights of the defense and the prosecution to interview witnesses unimpeded by third parties, is the opposing right of witnesses to refuse to be interviewed by either the defense or the prosecution.

Commonwealth v. Peters, 353 S.W.3d 592, 598 (Ky.2011) (RCr 7.24 and RCr 8.03 do not authorize the trial court to compel a witness’s attendance for discovery); Radford, 212 S.W.3d at 82; see also United States v. Scott, 518 F.2d 261, 268 (6th Cir.1975) (recognizing that any witness has the right to refuse to be interviewed if he so desires and is not under or subject to legal process).

RCr 7.24 and RCr 8.03 do not authorize the trial court to compel a witness's attendance for discovery


Context: Had his attorney objected to the application of SS 4B1.1, Cabello's sentence would, under the Guidelines, have involved at least 8 years and 11 months less prison time. Such a "significantly less harsh" sentence constitutes the sort of prejudice that supports a Sixth Amendment ineffective-assistance claim based on failure to assure the proper Guideline sentence.

See Durrive v. United States, 4 F.3d 548, 551 (7th Cir.1993) (setting out standard for ineffective-assistance claims based on counsel’s error at sentencing); see also United States v. Partee, 31 F.3d 529, 534 (7th Cir.1994) (confirming Durrive standard where counsel error led to erroneous Guideline sentence).

setting out standard for ineffective-assistance claims based on counsel's error at sentencing


Context: Each one of these sexual encounters with C.R. -- who was unable to consent due to her age -- caused a separate harm, even though they occurred with the same victim.

noting that, in the context of "sex crimes committed by the same defendant against the same victim over an extended period of time," "each act usually amounts to a fresh harm the victim must face anew"

See United States v. Bonner, 85 F.3d 522, 524-25 (11th Cir. 1996) (“Multiple, separate instances of fear and risk of harm, not one composite harm, occur when the defendant robs or rapes the same victim on different occasions.”); see also United States v. Bivens, 811 F.3d 840, 843 (6th Cir. 2016) (noting that, in the context of “sex crimes committed by the same defendant against the same victim over an extended period of time,” “each act usually amounts to a fresh harm the victim must face anew”).

"Multiple, separate instances of fear and risk of harm, not one composite harm, occur when the defendant robs or rapes the same victim on different occasions."


Context: We note, moreover, that every circuit court to have considered whether a defendant may withdraw his plea to a violation of 18 U.S.C. SS 924(c)(1) in light of Bailey's change in the law has addressed this issue on the merits.

See United States v. Garcia, 1996 WL 128123 (8th Cir. March 25,1996) (unpublished disposition) (summarily vacating guilty plea on direct appeal on basis of Bailey); United States v. Keebler, 78 F.3d 598 (10th Cir.1996) (table), 1996 WL 84104 (10th Cir. Feb. 27, 1996) (remanding to trial court for reconsideration of plea in light of Bailey); United States v. Abdul, 75 F.3d 327 (7th Cir.1996) (on appeal from denial of presentence motion to vacate plea, finding the factual basis supporting plea insufficient under Bailey and remanding with instructions to vacate conviction and sentence under § 924(c)(1)); United States v. Riascos-Suarez, 73 F.3d 616, 622-23 (6th Cir.1996) (on appeal from denial of post-sentence motion to withdraw plea, reassessing sufficiency of factual basis supporting defendant’s Alford plea to violation of § 924(c)(1) in light of Bailey); see also Bell v. United States, 917 F.Supp. 681 (E.D.Mo.1996) (vacating plea on § 2255 motion on grounds pre-Bailey misunderstanding of the law rendered plea involuntary); United States v. Fletcher, 919 F.Supp. 384 (D.Kan.1996) (permitting habeas petitioner to attack plea on ground that factual basis did not constitute a crime under Bailey and discussing cases); United States v. McMillan, 914 F.Supp. 1387 (E.D.La.1996) (permitting pre-sentence withdrawal of plea on grounds that factual basis did not support “use” of firearm in light of Bailey).

vacating plea on SS 2255 motion on grounds pre-Bailey misunderstanding of the law rendered plea involuntary


permitting habeas petitioner to attack plea on ground that factual basis did not constitute a crime under Bailey and discussing cases


permitting pre-sentence withdrawal of plea on grounds that factual basis did not support "use" of firearm in light of Bailey


remanding to trial court for reconsideration of plea in light of Bailey


on appeal from denial of presentence motion to vacate plea, finding the factual basis supporting plea insufficient under Bailey and remanding with instructions to vacate conviction and sentence under SS 924(c


on appeal from denial of post-sentence motion to withdraw plea, reassessing sufficiency of factual basis supporting defendant's Alford plea to violation of SS 924(c


Context: 121 Under these circumstances, and viewed in the light most favorable to the prosecution, the evidence is sufficient to support a conclusion by a reasonable mind that defendant knew sexually exploitative material was available for other LimeWire users to download from his computer.

See Clark, 282 P.3d at 1291; see also State v. Tremaine, 8315 S.W.3d 769, 772 (Mo.Ct.App.2010) (evidence was sufficient for the jury to find that the defendant offered to disseminate child pornography in the sense that he presented for acceptance or rejection, held out, and made available, such materials for widespread sharing via the computer, and invited others to take, or download, those items from him); cf. United States v. Shaffer, 472 F.3d 1219, 1228 (10th Cir.2007) (in analyzing the term "distributed" the Tenth Cireuit explained that the defendant may not have "actively pushed pornography" on other peer-to-peer users, but "he freely allowed them access to his computerized stash of images and videos and openly invited them to take, or download, those items," and therefore, distributed those images).


Context: In his plea agreement, Richardson waived his right to appeal with the exception of "only those issues raised and subsequently denied by the Court with regard to the defendant's motion to suppress." (R. (Richardson) v. 1, doc. 112, plea agreement at 7, para. 11 (emphasis added).) That language clearly precludes Richardson from raising on appeal any new arguments in support of his suppression motion.

See Anderson, 374 F.3d at 957-58 (holding appeal waiver in conditional guilty plea agreement precluded defendant from asserting new argument on appeal in support of suppression motion); see also United States v. Ochoa-Colchado, 521 F.3d 1292, 1299 (10th Cir.2008) (noting that, “[w]hen considering whether an appeal falls within the scope of a waiver of appellate rights, the general rule is that any appellate rights not expressly reserved are waived”).

noting that, "[w]hen considering whether an appeal falls within the scope of a waiver of appellate rights, the general rule is that any appellate rights not expressly reserved are waived"


Context: ' This is a critical distinction between this case and Boss, as a dispute of fact- on the general applicability of the Protocol necessitates an analysis of whether the Protocol is content neutral.

See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (“[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech,' provided the restrictions are justified mthout' reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, .and that they leave open ample alternative channels for-communication-of. .the information.” (internal quotation marks omitted) (emphasis supplied)); R.A.V. v. City of St. Paul, 505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (explaining content based -time, place, and manner regulations are subject to strict scrutiny); see also McCullen v. Coakley, — U.S. —, 134 S.Ct. 2518, 2530, 189 L.Ed.2d 502 (2014) (considering the content neutrality question first to determine level of scrutiny). This court in Ross never had the chance to decide whether the Protocol is content neutral in-the absence of a general applicability stipulation; therefore, that decision cannot be fairly said to dictate the outcome here.


Context: Courts have consistently held that the "reason to believe" phrase in SS 1357 "must be read in light of constitutional standards, so that 'reason to believe' must be considered the equivalent of probable cause."

"Because the Fourth Amendment' applies to arrests of illegal aliens, the term 'reason to believe' in SS 1357(a

Au Yi Lau, 445 F.2d at 222; see, e.g., Tejeda-Mata v. Immigration & Naturalization Serv., 626 F.2d 721, 725 (9th Cir. 1980) (“The phrase ‘has reason to believe’ [in § 1357] has been equated with the constitutional requirement of probable cause.”); United States v. Cantu, 519 F.2d 494, 496 (7th Cir.1975) (“The words [in § 1357] of the statute ‘reason to believe’ are properly taken to signify probable cause.”); see also United States v. Quintana, 623 F.3d 1237, 1239 (8th Cir.2010) (“Because the Fourth Amendment' applies to arrests of illegal aliens, the term ‘reason to believe’ in § 1357(a)(2) means constitutionally required probable cause.”).

"The phrase 'has reason to believe' [in SS 1357] has been equated with the constitutional requirement of probable cause."


"The words [in SS 1357] of the statute 'reason to believe' are properly taken to signify probable cause."


Context: However, courts faced with this issue have refused to apply this provision to government employees testifying in criminal trials based on the rationale that no individual can bind the sovereign.

See United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir.1979) ("Because the agents of the Government are supposedly disinterested in the outcome of a trial and are traditionally unable to bind the sovereign, their statements seem less the product of the adversary process and hence less appropriately described as admissions of a party.” (citations omitted)), cert. denied, 446 U.S. 954, 100 S.Ct. 2923, 64 L.Ed.2d 812 (1980); United States v. Santos, 372 F.2d 177, 180 (2d Cir.1967) (holding inconsistent out of court statements otherwise admissible not admissible against government in criminal prosecution); United States v. Durrani, 659 F.Supp. 1183 (D.Conn.) (citing cases listed above), aff'd, 835 F.2d 410 (2d Cir.1987); cf. Lippay v. Christos, 996 F.2d 1490, 1497 (3d Cir.1993) (affirming rule for criminal trials but questioning applicability of rule to civil litigation).


But see United States v. Morgan, 581 F.2d 933, 938 (D.C.Cir.1978) (questioning applicability of rule when Government had expressed its belief in the statement of the declarant).


Context: Finally, we have held that where a party seeks to impeach a witness with evidence of prior juvenile, delinquency findings, a general challenge to the witness's character, without more, is not enough.

holding that the trial court properly excluded inquiry into a witness's juvenile record where the defendant "attempted to impeach the general credibility of the witness with the finding of delinquency for particular acts," in this case, theft

Engle v. State, 506 N.E.2d 3, 5 (Ind.1987) (holding that the trial court properly excluded inquiry into a witness’s juvenile record where the defendant “attempted to impeach the general credibility of the witness with the finding of delinquency for particular acts,” in this case, theft) (emphasis added); Roland v. State, 501 N.E.2d 1034, 1037 (Ind.1986) (holding that although the trial court improperly permitted reference to the witness’s juvenile adjudication based on theft for impeachment purposes, there was no prejudicial effect requiring reversal); cf. Terrell v. State, 507 N.E.2d 633, 635 (Ind.Ct.App.1987) (holding that the trial court did not err in admitting juvenile records where counsel stated in his opening statement that the witness had “no record” when, in actuality, the witness had nine juvenile adjudications for burglary).

holding that the trial court did not err in admitting juvenile records where counsel stated in his opening statement that the witness had "no record" when, in actuality, the witness had nine juvenile adjudications for burglary


holding that although the trial court improperly permitted reference to the witness's juvenile adjudication based on theft for impeachment purposes, there was no prejudicial effect requiring reversal


Context: Here, the trial court found that the jury erred in concluding that the parties intended the employment con tract to last for fourteen years and, accordingly, halved the length of the contract and reduced the jury verdict from $407,000.00 to $204,000.00. In light of the above-cited principles of law, the. trial court's action in reducing the verdict was proper under the law relating to implied contracts.

"reasonable length of time" of implied contract of employment had passed where appellant employed for eight years before he was dismissed

See, e.g., Paul v. Lankenau Hosp., 375 Pa.Super. 1, 22, 543 A.2d 1148, 1159 (1988), rev’d on other grounds, 524 Pa. 90, 569 A.2d 346 (1990) (upholding trial court's order of remittitur of excessive jury award); see also Veno v. Meredith, supra 357 Pa.Super. at 102 n. 4, 515 A.2d at 580 n. 4 (“reasonable length of time” of implied contract of employment had passed where appellant employed for eight years before he was dismissed).


Context: We recognize that the judge instructed the jury on law and gave an appropriate instruction directing that what he said about the law was controlling. In addition, the judge directed the jurors to rely on their recollection of the evidence, not the summations of counsel. But the sheer quantity and variety of highly prejudicial remarks, visual displays and a courtroom antic, give us reason to have serious doubt about the jurors' capacity to follow those instructions.

noting that "[t]he record lends no support to the suggestion that the jurors were unable to comply with the court's instruction"

See State v. Manley, 54 N.J. 259, 270, 255 A.2d 193 (1969) (discussing courts’ need to rely on jurors’ capacity to follow instructions); but cf. State v. Winter, 96 N.J. 640, 649, 477 A.2d 323 (1984) (noting that “[t]he record lends no support to the suggestion that the jurors were unable to comply with the court’s instruction”); State v. Catlow, 206 N.J.Super. 186, 193, 502 A.2d 48 (App.Div.1985) (noting that the record revealed “no reason to believe that the jury was unable to follow the court’s sharp and complete curative instruction”), certif. denied, 103 N.J. 465, 511 A.2d 648 (1986) (quoted in Vallejo, supra, 198 N.J. at 135, 965 A.2d 1181).

discussing courts' need to rely on jurors' capacity to follow instructions


quoted in Vallejo, supra, 198 N.J. at 135, 965 A.2d 1181


Context: Our case law and that of our sister circuits have treated attachments to an EEO complaint as part of the complaint itself and a basis for articulating claims.

See Brooks v. District Hosp. Partners, 606 F.3d 800, 808 (D.C. Cir. 2010) (individuals included in a list attached to a complaint were included within the complainant’s reference to similarly situated individuals); accord Asebedo v. Kansas State Univ., 559 Fed.Appx. 668, 672 (10th Cir. 2014) (holding plaintiff exhausted discrimination claim because he had raised it in an attached narrative); Agolli v. Office Depot, Inc., 548 Fed.Appx. 871, 876 (4th Cir. 2013) (holding plaintiff exhausted administrative remedies based on additional sheets attached to EEO complaint); Fantini v. Salem State Coll., 557 F.3d 22, 27 (1st Cir. 2009) (holding plaintiff had exhausted sex discrimination claim because, inter alia, she had identified an instance of disparate treatment in an attachment to her EEO complaint); Dixon v. Ashcroft, 392 F.3d 212, 217-218 (6th Cir. 2004) (holding plaintiff had exhausted claim because his attachment to his EEO complaint set forth sufficient factual details); cf. Federal Express Corp. v. Holowecki, 552 U.S. 389, 405-406, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008) (holding that plaintiffs filing with the EEOC constituted a formal charge because the plaintiff attached a statement to the filed intake questionnaire that included a request for the agency to act).

individuals included in a list attached to a complaint were included within the complainant's reference to similarly situated individuals


Context: See PL AF Ex. B (entries for 7/22/05, 11/18/05, and 2/20/06). Therefore, although the original FOIA request was not made "in connection with the court proceeding," it is reasonable to conclude that the FOIA-related work after the date of the refund claim was "solely" related to the case filed in this court.

"Expenses of an attorney that are not incurred or expended solely or exclusively in connection with the case before the court ... cannot be awarded under the EAJA."

See Oliveira v. United States, 827 F.2d 735, 744 (Fed.Cir.1987) (“Expenses of an attorney that are not incurred or expended solely or exclusively in connection with the case before the court ... cannot be awarded under the EAJA.”); see also Larsen, 39 Fed.Cl. 162, 167 n. 9 (“Although the EAJA and [Section] 7430 differ slightly, the court has held that case law on the EAJA may be instructive in interpreting [Section] 7430, which was promulgated to remedy a gap in the EAJA’s coverage of tax suits.”).

"Although the EAJA and [Section] 7430 differ slightly, the court has held that case law on the EAJA may be instructive in interpreting [Section] 7430, which was promulgated to remedy a gap in the EAJA's coverage of tax suits."


Context: Officer Bilyard was investigated, and it was found that he did not use excessive force. While Plaintiff asserts the investigation was not conducted as thoroughly as the "secret" investigation against him, such is mere speculation on Plaintiffs part and is not sufficient evidence to survive Defendant's Motion for Summary Judgment.

"Plaintiff must come forward with admissible evidence that is more than self-serving opinions or speculation."

See Holland, 487 F.3d at 217 (“[A]lthough a reasonable trier of fact would conclude that [the defendant] reported a different reason and date, when combined with the company’s innocuous reasoning for these decisions and [plaintiffs] failure to present any other evidence — beyond baseless speculation — that ... [the] stated reason was pretextual, the trier of fact would be hard-pressed to conclude that this established pretext.”); see also Guseh v. N.C. Cent. Univ., 423 F.Supp.2d 550, 556 (M.D.N.C.2005) (“Plaintiff must come forward with admissible evidence that is more than self-serving opinions or speculation.”); Middlebrooks v. Univ. of Md. at College Park, 980 F.Supp. 824, 831 (D.Md.1997) (“‘Speculation and belief are insufficient to create a fact issue as to pretext .... ’ ” (quoting Baldwin v. Univ. of Tex. Med. Branch at Galveston, 945 F.Supp. 1022, 1032 (S.D.Tex.1996))).

"[A]lthough a reasonable trier of fact would conclude that [the defendant] reported a different reason and date, when combined with the company's innocuous reasoning for these decisions and [plaintiffs] failure to present any other evidence -- beyond baseless speculation -- that ... [the] stated reason was pretextual, the trier of fact would be hard-pressed to conclude that this established pretext."


Context: Significantly for purposes of the present case, Rufo and Frew establish that a consent decree may appropriately go beyond the bare bones of what a court could order without the local government's consent.

"But we have no doubt that, to 'save themselves the time, expense, and inevitable risk of litigation,' [the defendants] could settle the dispute over the proper remedy for the constitutional violations that had been found by undertaking to do more than the Constitution itself requires (almost any affirmative decree beyond a directive to obey the Constitution necessarily does that

See Rufo, 502 U.S. at 389, 112 S.Ct. 748 (“But we have no doubt that, to ‘save themselves the time, expense, and inevitable risk of litigation,’ [the defendants] could settle the dispute over the proper remedy for the constitutional violations that had been found by undertaking to do more than the Constitution itself requires (almost any affirmative decree beyond a directive to obey the Constitution necessarily does that), but also more than what a court would have ordered absent the settlement.” (citation omitted)); Frew, 540 U.S. at 437-38, 124 S.Ct. 899 (rejecting argument that consent decree violates the Eleventh Amendment on the ground that “state officials [may agree] to bind state governments to significantly more commitments than what federal law requires”); see also Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 525, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) (consent decree may properly “providef] broader relief than the court could have awarded after a trial”). Indeed, that is one reason why consent decrees are a valuable tool for resolving such cases.

consent decree may properly "providef] broader relief than the court could have awarded after a trial"


rejecting argument that consent decree violates the Eleventh Amendment on the ground that "state officials [may agree] to bind state governments to significantly more commitments than what federal law requires"


Context: Nonetheless, the treaty reservations say nothing about whether a particular "period of confinement" is "constitutional." And this Court has long considered as relevant and informative the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances. In doing so, the Court has found particularly instructive opinions of former Commonwealth nations insofar as those opinions reflect a legal tradition that also underlies our own Eighth Amendment.

See also Washington v. Glucksberg, 521 U. S. 702, 710, n. 8, and 718-719, n. 16 (1997) (surveying other nations' laws regarding assisted suicide); Culombe v. Connecticut, 367 U. S. 568, 583-584, n. 25, and 588 (1961) (considering English practice concerning police interrogation of suspects); Kilbourn v. Thompson, 103 U. S. 168, 183-189 (1881) (referring to the practices of Parliament in determining whether the House of Representatives has the power to hold a witness in contempt). Willingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a “decent respect to the opinions of mankind.”

noting that the doctrine of felony murder has been eliminated or restricted in England, India, Canada, and a "number of other Commonwealth countries"

Thompson v. Oklahoma, supra, at 830-831 (opinion of Stevens, J.) (considering practices of Anglo-American nations regarding executing juveniles); Enmund v. Florida, 458 U. S. 782, 796-797, n. 22 (1982) (noting that the doctrine of felony murder has been eliminated or restricted in England, India, Canada, and a “number of other Commonwealth countries”); Coker v. Georgia, 433 U. S. 584, 596, n. 10 (1977) (observing that only 3 of 60 nations surveyed in 1965 retained the death penalty for rape); Trop v. Dulles, 356 U. S. 86, 102-103 (1958) (noting that only 2 of 84 countries surveyed imposed denationalization as a penalty for desertion).


observing that only 3 of 60 nations surveyed in 1965 retained the death penalty for rape


noting that only 2 of 84 countries surveyed imposed denationalization as a penalty for desertion


Context: The district court could not have reduced Barrera's criminal history score simply to make him eligible for safety-valve relief. Other circuits have reached the same conclusion.

holding that the "district court was plainly correct when it decided that it did not have the discretion to award [appellant] only one point under the Guidelines once it had determined, by the process provided by the Guidelines, that [appellant] had two such points"

See United States v. Hunt, 503 F.3d 34, 37 (1 st Cir.2007) (holding that the plain language of the Guidelines precludes appellant from receiving the benefit of the safety valve regardless of whether the district court wanted to grant a downward departure because appellant had two criminal history points); see also Barrero, 425 F.3d at 157 (holding that the “district court was plainly correct when it decided that it did not have the discretion to award [appellant] only one point under the Guidelines once it had determined, by the process provided by the Guidelines, that [appellant] had two such points”).


Context: The court of appeals for the Second Circuit held that the report was relevant to the issue of the defendant's notice of the possible dangers of asbestos even though the defendant had not seen the unpublished report because the jury could use the report in deciding whether the defendant "should have known of the information comprising the contents of the report."

regarding "state of the art" defense: "Scientific discoverability, rather than actual knowledge, is the standard by which the relevancy of such evidence is to be judged."

See, e.g., Dunn v. HOVIC, 1 F.3d 1362, 1369-70 (3d Cir.1993); King v. Armstrong World Industries, Inc., 906 F.2d 1022, 1025 (5th Cir.1990); Dartez. v. Fibreboard Corp., 765 F.2d 456, 465 (5th Cir.1985) (minutes of committee meetings of Asbestos Textile Institute admissible to show “state of the art,” absent showing that defendant either was a member of the institute or had knowledge of its meetings); cf. In re New York Asbestos Litigation, 847 F.Supp. 1086, 1095 (S.D.N.Y.1994) (regarding “state of the art” defense: “Scientific discoverability, rather than actual knowledge, is the standard by which the relevancy of such evidence is to be judged.”), aff'd in part and vacated in part, 72 F.3d 1003 (2d Cir.1995), vacated on other grounds, 518 U.S. 1031, 116 S.Ct. 2576, 135 L.Ed.2d 1091 (1996).

minutes of committee meetings of Asbestos Textile Institute admissible to show "state of the art," absent showing that defendant either was a member of the institute or had knowledge of its meetings


Context: With regard to nonaction, "the general rule [is] that when a civil statute is silent as to the applicable standard of proof, the preponderance of the evidence standard governs factual determinations required by that statute." This rule applies equally to statutes that provide for multiple damages.

applying preponderance of evidence standard to claim for statutory punitive damages under General Statutes SSSS 47a-43 and 47a-46 and stating that "[a]bsent evidence of legislative intent to the contrary, we continue to presume that when a statutory private right of action includes multiple damages, the plaintiffs burden of proof is the same as that in other tort cases"

See Freeman v. Alamo Management Co., supra, 221 Conn. 683 (applying preponderance of evidence standard to claim for statutory punitive damages under General Statutes §§ 47a-43 and 47a-46 and stating that “[a]bsent evidence of legislative intent to the contrary, we continue to presume that when a statutory private right of action includes multiple damages, the plaintiffs burden of proof is the same as that in other tort cases”); see also Nielsen v. Wisniewski, 32 Conn. App. 133, 137-38, 628 A.2d 25 (1993) (applying preponderance of evidence standard to claim for punitive damages under Connecticut Unfair Trade Practices Act pursuant to General Statutes § 42-110g). Accordingly, when the legislature has intended to impose a different standard of proof in a civil statute, it has seen fit to include explicit language in the statute to effectuate that intent.

applying preponderance of evidence standard to claim for punitive damages under Connecticut Unfair Trade Practices Act pursuant to General Statutes SS 42-110g


Context: The unreasonableness of Gulfs interpretation of the exclusion is further demonstrated by the fact that, if the Court were to adopt Gulfs interpretation, the exclusion would tread dangerously close to violating the public policy of the State of California. As Gulf admitted at oral argument, its interpretation of the exclusion would create a strong incentive for companies to prevent their directors and officers from providing information to securities fraud plaintiffs in order to avoid the loss of insurance coverage. "Agreements to suppress evidence have been held void as against public policy."

Williamson v. Super. Ct., 21 Cal.3d 829, 836, 148 Cal.Rptr. 39, 582 P.2d 126 (1978) (allowing plaintiff to discover an expert report even though the defendant who employed the expert subsequently withdrew him as a witness, because that withdrawal was based on a promise of indemnification from the co-defendant regarding whom the expert report was unfavorable); see also Smith v. Super. Ct., 41 Cal.App.4th 1014, 49 Cal.Rptr.2d 20 (1996) (refusing to enforce a permanent injunction entered by a court in another State in which a former employee promised not to testify against his former employer in any proceeding involving allegedly defective products).


Context: Scattered itself agrees that "[i]f the ADS Agreement expired, there would be nothing for the Trustee to assume or reject." Scattered Br. 13. See R. Ginsberg & R. Martin, Ginsberg & Martin on Bankruptcy SS 7.01[C], at 7-8 n. 37 (4th ed.1995) (updated & current through 2007) ("Of course, if the executory contract (or lease) expires by its own terms during the postpetition, pre-assumption/rejection period, the trustee will have nothing to assume or reject."). Scattered is certainly correct in contending that the susceptibility of a claim (or argument) to sanctions under Bankruptcy Rule 9011 or Federal Rule of Civil Procedure 11 does not necessarily require resolution of the merits of the underlying claim.

order imposing Rule 11 sanctions "does not signify a district court's assessment of the legal merits of the complaint"

See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 2456, 110 L.Ed.2d 359 (1990) (order imposing Rule 11 sanctions “does not signify a district court’s assessment of the legal merits of the complaint”); see also Willy v. Coastal Corp., 503 U.S. 131, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992) (court can impose Rule 11 sanctions even if, in retrospect, it lacked subject matter jurisdiction over merits of the case).


Context: Roman has no right or entitlement to parole under Pennsylvania law. At most and reading the facts he has plead in his favor, Roman -- in deciding to assert his right to remain silent and thereby refusing to participate in the sex offender rehabilitation program -- has forfeited his opportunity for early release on his 1971 murder sentence, the terms of which were imposed following full and fair criminal proceedings.

describing loss of good-time credits, which are permissive but not guaranteed, as a loss of an "opportunity" for early release

See McKune, 536 U.S. at 53, 122 S.Ct. 2017 (O’Connor, J., concurring); Searcy, 299 F.3d at 1226 (describing loss of good-time credits, which are permissive but not guaranteed, as a loss of an “opportunity” for early release); see also Ohio v. Woodard, 523 U.S. at 286-88, 118 S.Ct. 1244 (“It is difficult to see how a voluntary interview could ‘compel’ respondent to speak.... [The] pressure to speak in the hope of improving his chance of being granted clemency does not make the inter view compelled.”).

"It is difficult to see how a voluntary interview could 'compel' respondent to speak.... [The] pressure to speak in the hope of improving his chance of being granted clemency does not make the inter view compelled."


Context: . While James Lattanzio purported to sign the Mutual Release on behalf of Sandra Lattanzio, it is hornbook law that a spouse does not -- by virtue of that status alone -- possess actual authority to legally bind his or her spouse, and the record is devoid of any indication that Sandra Lattanzio had either executed a power of attorney or, through her conduct with the defendants, created an appearance of authority in her husband.

husband's signature releasing claims against homebuilder did not bind non-signing spouse in absence of apparent authority

Bennett v. Mack’s Supermarkets, Inc., 602 S.W.2d 143, 147 (K.y.1979) ("There is no longer in this state a presumption of agency between husband and wife in dealing with each other’s property.”); see also Restatement, Agency 2d, § 22(b); Krause v. Reyelts, 646 N.W.2d 732, 736 (S.D.2002) (husband’s signature releasing claims against homebuilder did not bind non-signing spouse in absence of apparent authority); Poarch v. Alfa Mut. Ins. Co., 799 So.2d 949, 955 (Ala.Civ.App.2000).

"There is no longer in this state a presumption of agency between husband and wife in dealing with each other's property."


Context: William Blackstone long ago recognized this virtue of the right to confrontation, stressing that through live testimony, "and this [procedure] only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behavior, and inclinations of the witness." 3 William Blackstone, Commentaries on the Laws of England 373-74 (1768). Transcripts of a witness's prior testimony, even when subject to prior cross-examination, do not offer any such advantage, because "all persons must appear alike, when their [testimony] is reduced to writing." Id. at 374. As the National Association of Criminal Defense Lawyers ("NACDL") amicus brief highlights, the superiority of live testimony as contrasted with a transcript of prior testimony has been equally praised in our own judicial system since its inception.

"[TJhat part of the evidence which the printed words do not preserve .... is the most telling part, for on the issue of veracity the bearing and delivery of a witness will usually be the dominating factors.... "

-S'ee, e.g., Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (“The primary object of the constitutional provision in question was to prevent depo sitions ... being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”); see also NLRB v. Universal Camera Corp., 190 F.2d 429, 430 (2d Cir.1951) (“[TJhat part of the evidence which the printed words do not preserve .... is the most telling part, for on the issue of veracity the bearing and delivery of a witness will usually be the dominating factors.... ”); Broad. Music, Inc. v. Havana Madrid Rest. Corp., 175 F.2d 77, 80 (2d Cir.1949) (“The liar’s story may seem uncontradicted to one who merely reads it, yet it may be contradicted ... by his manner ... which cold print does not preserve.”) (internal quotations omitted).

"The primary object of the constitutional provision in question was to prevent depo sitions ... being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief."


"The liar's story may seem uncontradicted to one who merely reads it, yet it may be contradicted ... by his manner ... which cold print does not preserve."


Context: . In our view the instant case does not fall within that narrow category of situations in which it has been held that an evidentiary hearing was necessary in a SS 2255 challenge to a guilty plea.

summary dismissal of SS 2254 petition improper where petitioner made specific factual allegations concerning unkept oral plea agreement at a time before plea bargaining was accepted as legitimate, and there was no verbatim record of state court plea or sentencing hearing

See Fontaine v. United States, 411 U.S. 213, 214-15, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973) (petitioner claimed involuntary waiver of counsel and coerced plea, giving detailed factual allegations of coercive police tactics and mental and physical illness); Machibroda v. United States, 368 U.S. 487, 489-97, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) (hearing required on petitioner's specific and detailed allegations that prosecutor had made ex parte promises to him and told him not to tell his own counsel); compare Nahodil, 36 F.3d at 326-27 (petitioner alleged that counsel advised him to plead guilty despite his repeated objections to doing so, the record of the plea hearing substantiated that he had been reluctant, and he had promptly moved to withdraw the plea prior to sentencing); United States v. Ackerman, 619 F.2d 285, 287-88 (3d Cir.1980) (hearing required to de termine whether letters allegedly sent to petitioner by his defense counsel were in fact sent, and whether counsel was justified in failing to timely file Rule 35 motion to correct or reduce sentence); Marzgliano, 588 F.2d at 397-99 (petitioner submitted affidavits indicating that his defense counsel may have led him to believe that counsel had a special relationship with district judge and had "fixed” what the sentence would be); United States v. Valenciano, 495 F.2d 585, 586-88 (3d Cir. 1974) (hearing required where no written plea agreement was entered into, and petitioner claimed that his counsel had told him of the terms of an alleged oral agreement with the government in order to induce him to plead guilty); Moorhead v. United States, 456 F.2d 992, 995-96 (3d Cir.1972) (petitioner alleged misrepresentation by defense counsel as to a "proposition” by the government for a light sentence) with Masciola, 469 F.2d at 1059 ("When the pleading proceedings record shows clearly that defendant was questioned as to the voluntariness of his plea [and defendant acknowledged his awareness of the maximum available sentence], there is no need for an evidentiary hearing ... when the only claim is that counsel inaccurately predicted the sentence.”); see also Blackledge v. Allison, 431 U.S. 63, 71-77, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (summary dismissal of § 2254 petition improper where petitioner made specific factual allegations concerning unkept oral plea agreement at a time before plea bargaining was accepted as legitimate, and there was no verbatim record of state court plea or sentencing hearing); Lesko v. Lehman, 925 F.2d 1527, 1537-41 (3d Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991) (discussing evidentiary hearing issue under 28 U.S.C. § 2254; collecting cases under both § 2254 and § 2255); Zilich v. Reid, 36 F.3d 317, 320-23 (3d Cir. 1994) (same).


hearing required on petitioner's specific and detailed allegations that prosecutor had made ex parte promises to him and told him not to tell his own counsel


petitioner alleged that counsel advised him to plead guilty despite his repeated objections to doing so, the record of the plea hearing substantiated that he had been reluctant, and he had promptly moved to withdraw the plea prior to sentencing


hearing required to de termine whether letters allegedly sent to petitioner by his defense counsel were in fact sent, and whether counsel was justified in failing to timely file Rule 35 motion to correct or reduce sentence


petitioner submitted affidavits indicating that his defense counsel may have led him to believe that counsel had a special relationship with district judge and had "fixed" what the sentence would be


hearing required where no written plea agreement was entered into, and petitioner claimed that his counsel had told him of the terms of an alleged oral agreement with the government in order to induce him to plead guilty


Context: As a result, the motion was decided on the basis of an adversarial presentation of the evidence. On this motion, the State was required to meet a higher burden than the probable cause standard.

"The standard used to judge a motion to dismiss for lack of a prima facie case is stricter [than that required to show probable cause.]"

State v. Duff, 151 Vt. 433, 439, 563 A.2d 258, 262-63 (1989) (“The standard used to judge a motion to dismiss for lack of a prima facie case is stricter [than that required to show probable cause.]”); see also State v. Cole, 150 Vt. 453, 455, 554 A.2d 253, 254 (1988) (“The burden is actually the same as that in response to a motion for judgment of acquittal . . . .”). Defendant could have sought to appeal the motion decision under Vermont Rule of Appellate Procedure 5(b)(1).

"The burden is actually the same as that in response to a motion for judgment of acquittal . . . ."


Context: Before this court can exercise jurisdiction pursuant to the CDA, however, the CDA requires that a contractor's claim first must be submitted in writing to the contracting officer, and the contracting officer must render a final decision on the claim. The CDA does not define "claim," but the United States Court of Appeals for the Federal Circuit has explained that "the definition of the term 'claim' in the FAR governs."

explaining that the Federal Circuit "has identified three requirements for a valid CDA claim: (1

Smith, Inc. v. Dalton, 49 F.3d 1563, 1564 (Fed.Cir.1995) (explaining that the Federal Circuit “has identified three requirements for a valid CDA claim: (1) the contractor must submit the demand in writing to the contracting officer, (2) the contractor must submit the demand as a matter of right, and (3) the demand must include a sum.certain”). Therefore, courts look to the FAR, which defines “claim” as a “written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terns, or other relief arising under or relating to the contract.” 48 C.F.R. § 2.101 (“Definitions”) (2016); see also Todd Constr., L.P. v. United States, 656 F.3d at 1312 (explaining that the court should read the definition of “claim” broadly).

explaining that the court should read the definition of "claim" broadly