Context: . Under proper circumstances, both doctrines apply not only to the protection of human life or to avoid serious injury, but also to the protection of property interests.

finding warrantless entry into house reasonable to "prevent the loss or destruction of the owner's property" where kitchen window was broken and neighbor reported burglary in progress

See, e.g., Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949-50, 56 L.Ed.2d 486 (1978) (concluding the need to protect property may justify a warrantless entry of premises); see also United States v. Johnson, 9 F.3d 506, 510 (6th Cir.1993) (finding warrantless entry into house reasonable to "prevent the loss or destruction of the owner’s property” where kitchen window was broken and neighbor reported burglary in progress); United States v. Dart, 747 F.2d 263, 267 (4th Cir.1984) (upholding initial warrantless entry of warehouse where locks sawed off and doors forced open).


upholding initial warrantless entry of warehouse where locks sawed off and doors forced open


Context: . We find no merit to the Secretary's additional assertions that Plaintiffs' complaint raises a non-justiciable question, or that it is barred by the doctrine of laches. Specifically with regard to laches, our Court has heretofore indicated that, because of the paramount importance of the manner in which a proposed constitutional amendment is presented to the people for consideration, the doctrine of laches was not a bar to our Court's consideration of such matters.

"Because of the intense importance to the people of the commonwealth of matters affecting the amendment of their fundamental law, the doctrine of laches cannot be invoked to prevent the determination of the propriety of the submission of an amendment."

See Tausig v. Lawrence, 328 Pa. 408, 197 A. 235, 239 (1938) ("Because of the intense importance to the people of the commonwealth of matters affecting the amendment of their fundamental law, the doctrine of laches cannot be invoked to prevent the determination of the propriety of the submission of an amendment.”); see also Sprague v. Casey, 520 Pa. 38, 550 A.2d 184, 188 (1988) (rejecting reliance on laches defense in constitutional challenge to scheduling of judicial election in non-municipal election year).


Context: While the court referenced the omitted factor of promoting respect for the law, it tempered this reference by subsequently referring to the disrespect Black had specifically shown the probation office. Therefore, the district court primarily based the revocation sentence on permissible factors, rendering the resulting sentence not plainly unreasonable.

rejecting a per se rule that consideration of SS 3553(a

See United States v. Lewis, 498 F.3d 393, 399-400 (6th Cir.2007) (rejecting a per se rule that consideration of § 3553(a)(2)(A) results in an unreasonable sentence, plainly or otherwise, and instead interpreting § 3583(e) as requiring consideration of the enumerated factors in § 3553(a) without forbidding consideration of other relevant factors), pet. for cert. filed, — U.S.L.W. - (U.S. Apr. 11, 2008) (No. 07-1295); United States v. Williams, 443 F.3d 35, 47-48 (2d Cir.2006) (same); cf. United States v. Miqbel, 444 F.3d 1173, 1182-83 (9th Cir.2006) (stating in dicta that while it did “not suggest that a mere reference to promoting respect for the law would in itself render a sentence unreasonable,” it could result in reversible error if the record failed to establish that permissible factors were properly considered and formed the basis of the sentence).

stating in dicta that while it did "not suggest that a mere reference to promoting respect for the law would in itself render a sentence unreasonable," it could result in reversible error if the record failed to establish that permissible factors were properly considered and formed the basis of the sentence


Context: Where a statutory provision does not define a standard of care but merely imposes an administrative requirement, such as the requirement to obtain a license or to file a report to support a regulatory scheme, violation of such requirement will not support a negligence per se claim. Even if the regulatory scheme as a whole is designed to protect the public or to promote safety, the licensing duty itself is not a standard of care, but an administrative requirement.

observing that "[i]n a majority of accident cases, the violation of a licensing statute by a driver is not held relevant to the determination of fault"

See Ridge v. Cessna Aircraft Co., 117 F.3d 126, 131 (4th Cir.1997) (holding that federal regulations making a pilot responsible for operation of his aircraft and requiring- him, upon request, to submit a written report to the government whenever he deviates from an aviation rule in an emergency provide for “general standards of conduct,” but do “not impose a particular duty,” and thus their violation was not negligence per se in Virginia); see also Duncan v. Hixon, 223 Va. 373, 288 S.E.2d 494, 495 (1982) (observing that “[i]n a majority of accident cases, the violation of a licensing statute by a driver is not held relevant to the determination of fault”).

holding that federal regulations making a pilot responsible for operation of his aircraft and requiring- him, upon request, to submit a written report to the government whenever he deviates from an aviation rule in an emergency provide for "general standards of conduct," but do "not impose a particular duty," and thus their violation was not negligence per se in Virginia


Context: Therefore, without determining whether Defendants have breached the express warranty, I conclude that Plaintiff has available a contractual remedy through the breach of express warranty claim. Critically, Plaintiff fails to allege that this contractual remedy is inadequate, as required to state a claim for unjust enrichment.

denying motion to dismiss unjust enrichment claim because plaintiff alleged "no adequate legal remedy exists to compensate Plaintiff."

See Nautica Int’l, Inc., 5 F.Supp.2d at 1342 (dismissing unjust enrichment claim because the plaintiff failed to allege that an adequate remedy at law does not exist); Kraft Co., Inc. v. J & H Marsh & McLennan of Florida, Inc., No. 04-2359-CIV, 2006 WL 1876995, at *3 (M.D.Fla.2006) (dismissing unjust enrichment claim because claim arose out of performance of an express contract, and express contract provides legal remedy); cf. Wilson v. De Angelis, 156 F.Supp.2d 1335, 1341 (S.D.Fla.2001) (denying motion to dismiss unjust enrichment claim because plaintiff alleged “no adequate legal remedy exists to compensate Plaintiff.”).


dismissing unjust enrichment claim because claim arose out of performance of an express contract, and express contract provides legal remedy


Context: The purpose of the arbitration, however, was to determine the liabilities of the parties. Even if the arbitrators erroneously applied South Carolina corporate law, they did not exceed the scope of their powers.

Batten, 300 S.C. 545, 389 S.E.2d 170 (if the arbitrators resolved the very issue presented to them, they did not exceed their powers, even assuming factual and legal errors).

See also Trident Technical College, 286 S.C. 98, 333 S.E.2d 781 (if the issues presented to the arbitrators are within the scope of the arbitration agreement, they do not exceed their powers when attempting to resolve those issues).


Context: Since In re Complaint of Dammers, the Fifth Circuit has upheld stipulations that mirror the stipulation approved above.

See In re Two “R” Drilling Co., Inc., 943 F.2d 576, 578 (5th Cir.1991)(holding that even in a multiple claimant situation, a court can lift the stay and allow state court suits if the claimants enter a stipulation that the court determines will adequately protect the limitation plaintiff under the Limitation Act, including a stipulation that will protect the limitation plaintiff against third party indemnification claims); see also,; Kattelman v. Otis Eng’g Corp., 696 F.Supp. 1111, 1116 (E.D.La.1988) (finding sufficient a stipulation that prevented third party cross-claims for indemnification or contribution from being in excess of the limitation fund).


Context: Since the second indictment has yet to be made public, the speedy trial clock may not have begun again with the issuance of the second indictment.

See United States v. Watson, 599 F.2d 1149, 1156 (2d Cir.) ([T]he speedy trial right under the Sixth Amendment attaches not when a sealed indictment is filed but when it is unsealed), on reh’g op. replaced, 690 F.2d 15 (1979), modified, en banc, sub nom. United States v. Muse, 633 F.2d 1041 (1980), cert. denied, 450 U.S. 984, 101 S.Ct. 1522, 67 L.Ed.2d 820 (1981); see also United States v. Vaughn, 510 F.Supp. 206, 209 (D.N.J.1981) ("The [speedy trial] statute ... plainly and unambiguously require^] that trial commence within seventy days of the indictment being made public (i.e. unsealed) or the defendant's appearance before a judicial officer of this District, whichever date last occurs") (emphasis in original); cf. United States v. Ramey, 791 F.2d 317, 322 (4th Cir.1986) (holding that a sealed indictment handed down before statute of limitations has run is valid even if it is not unsealed until after the limitations period has expired).


holding that a sealed indictment handed down before statute of limitations has run is valid even if it is not unsealed until after the limitations period has expired


Context: Even though the offense said to be the basis for Reid's arrest - "disorderly gambling" - is not a crime, that probable cause existed to arrest him for any crime is sufficient to render the arrest lawful.

"Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis"

See United States v. Bookhardt, 277 F.3d 558, 564 (D.C.Cir.2002) (“an arrest will be upheld if probable cause exists to support arrest for an offense that is not denominated as the reason for the arrest by the arresting officer”); Bell v. United States, 254 F.2d 82, 86 (D.C.Cir.1958) (“The question is not what name the officer attached to his action; it is whether, in the situation in which he found himself, he had reasonable ground to believe a felony had been committed”); see also Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis”); United States v. Wesley, 293 F.3d 541, 545 (D.C.Cir.2002) (probable cause when “facts and circumstances within the officer’s knowledge ... are sufficient to warrant a prudent person in believing that the suspect has committed, is committing, or is about to commit an offense”). Because the search about which Reid complains was incident to a lawful arrest, it was reasonable under the Fourth Amendment, see Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), irrespective of the arresting officers’ mistaken belief that “disorderly gambling” is a crime in the District of Columbia.

"an arrest will be upheld if probable cause exists to support arrest for an offense that is not denominated as the reason for the arrest by the arresting officer"


probable cause when "facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person in believing that the suspect has committed, is committing, or is about to commit an offense"


Context: The fact that conviction of misdemeanor crimes may result in the loss of one's freedom for as much as one year belies the contention that such crimes are "minor." As this case is clearly distinguishable from the facts in Welsh, supra, we find no merit in Appellant's contention that the imminent destruction of misdemeanor crime evidence is not sufficient to constitute exigent circumstances under the Fourth Amendment.

distinguishing between "jailable" and "nonjailable" offenses when determining importance of law enforcement's need to preserve evidence of those crimes

See Illinois v. McArthur, 531 U.S. 326, 336, 121 S.Ct. 946, 952, 148 L.Ed.2d 838 (2001) (distinguishing between “jailable” and “nonjailable” offenses when determining importance of law enforcement’s need to preserve evidence of those crimes); Ingram v. City of Columbus, 185 F.3d 579, 587 (6th Cir.1999) (“Under Welsh, courts must look to the state’s penalty scheme to determine the seriousness of a state law offense; if the suspect has committed an offense ‘for which no imprisonment is possible,’ the offense is ‘minor.’”); United States v. Grissett, 925 F.2d 776, 778 (4th Cir.1991) (exigent circumstances existed to justify warrantless entry into motel room where police smelled burning marijuana while standing outside); Randolph v. State, 152 S.W.3d 764, 771-72 (Tex.App.2004) (“[I]f an offense, either a misdemeanor or a felony, is punishable by confinement and there are exigent circumstances, then it is serious enough to justify the warrantless entry of a constitutionally protected area.”); Cherry v. Commonwealth, 44 Va.App. 347, 605 S.E.2d 297, 305 (2004) (police officer’s warrantless entry into residence based on exigent circumstances after smelling burning marijuana was reasonable, even though marijuana possession was only a misdemeanor offense); see also, KRS 431.005(1)(d) (authorizing peace officers to make warrantless arrests of persons committing misdemeanors in their presence); Atwater v. City of Lago Vista, 532 U.S. 318, 340, 121 S.Ct. 1536, 1550, 149 L.Ed.2d 549 (2001) (noting that bulk of state and federal law permits warrantless arrests of persons committing misdemeanors in their presence).


small quantity of marijuana does not rise to the level of "serious crime" to justify warrantless entry into home on the basis of exigent circumstances

But see, United States v. Carter, 360 F.3d 1235, 1241 (10th Cir.2004) (small quantity of marijuana does not rise to the level of “serious crime” to justify warrantless entry into home on the basis of exigent circumstances); State v. Davis, 133 Ohio App.3d 114, 726 N.E.2d 1092, 1095 (1999) (exigent circumstances exception to the warrant requirement did not apply to misdemeanor crime involving no violence or weapons), reasoning overruled to some extent by City of Middletown v. Flinchum, 95 Ohio St.3d 43, 765 N.E.2d 330, 332 (2002).


exigent circumstances exception to the warrant requirement did not apply to misdemeanor crime involving no violence or weapons


exigent circumstances existed to justify warrantless entry into motel room where police smelled burning marijuana while standing outside


"[I]f an offense, either a misdemeanor or a felony, is punishable by confinement and there are exigent circumstances, then it is serious enough to justify the warrantless entry of a constitutionally protected area."


police officer's warrantless entry into residence based on exigent circumstances after smelling burning marijuana was reasonable, even though marijuana possession was only a misdemeanor offense


Context: Nor can the Court say that the alleged injury is merely "conjectural or hypothetical." Defendant argues that Plaintiffs' theory of economic harm is merely speculative, pointing to a line of privacy cases involving the alleged disclosure of personal information that have been dismissed for failure to show injury.

See Low, 2011 WL 5509848, at *4-6 (plaintiffs general allegation that the data collection industry considers consumer information valuable was insufficient to establish standing where he failed to allege what personal information of his was purportedly collected by a third party and how such collection deprived him of the economic value of his data); In re iPhone Application, 2011 WL 4403963, at *5-6 (plaintiffs’ mere “general allegations” about the mobile device market for apps and about abstract concepts such as “lost opportunity costs” and “value-for-value exchanges” were insufficient to establish a concrete theory of injury); Specific Media, 2011 WL 1661532, at *4-6 (plaintiffs’ reference to “academic articles concerning the nature of Internet business models driven by consumers’ willingness to supply data about themselves” was insufficient, on its own, to establish standing in the absence of “some particularized example of their application in this case” (internal quotation marks, citations, and alterations omitted)); In re Jetblue Airways Corp. Privacy Litig., 379 F.Supp.2d 299, 327 (E.D.N.Y.2005) (rejecting plaintiffs’ attempt to recover the loss of the economic value of their personal information as a contract damage where airline disclosed their personal data to a third-party data mining company in violation of airline’s privacy policy); In re Doubleclick, Inc. Privacy Litig., 154 F.Supp.2d 497, 525 (S.D.N.Y.2001) (rejecting argument that the economic value of the collection of demographic consumer data is an economic loss to the individual consumer); but see Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir.2010) (holding that plaintiffs “alleged a credible threat of real and immediate harm stemming from the theft of a laptop containing their unencrypted personal data,” which included their names, addresses, and social security numbers); Doe 1 v. AOL LLC, 719 F.Supp.2d 1102, 1109-11 (N.D.Cal.2010) (holding that plaintiffs were injured by defendant’s collection and publication of “highly sensitive personal information,” including credit card numbers, social security numbers, financial account numbers, and information regarding plaintiffs’ personal issues, including sexuality, mental illness, alcoholism, incest, rape, and domestic violence).

holding that plaintiffs "alleged a credible threat of real and immediate harm stemming from the theft of a laptop containing their unencrypted personal data," which included their names, addresses, and social security numbers


holding that plaintiffs were injured by defendant's collection and publication of "highly sensitive personal information," including credit card numbers, social security numbers, financial account numbers, and information regarding plaintiffs' personal issues, including sexuality, mental illness, alcoholism, incest, rape, and domestic violence


plaintiffs' mere "general allegations" about the mobile device market for apps and about abstract concepts such as "lost opportunity costs" and "value-for-value exchanges" were insufficient to establish a concrete theory of injury


rejecting plaintiffs' attempt to recover the loss of the economic value of their personal information as a contract damage where airline disclosed their personal data to a third-party data mining company in violation of airline's privacy policy


rejecting argument that the economic value of the collection of demographic consumer data is an economic loss to the individual consumer


Context: There was no error. We recognize that references to a defendant's alias (or nickname) by the prosecution can be prejudicial because "[a]liases can be suggestive of bad character and prior criminality, and therefore raise a possibility that the jury will improperly consider criminal propensity."

prosecution's repeated, gratuitous use of defendant's alias, including comment in closing argument, "How can you trust somebody who has two names at the outset?" was improper and required reversal of defendant's conviction

See Commonwealth v. Martin, 442 Mass. 1002, 1003 (2004) (prosecution’s repeated, gratuitous use of defendant’s alias, including comment in closing argument, “How can you trust somebody who has two names at the outset?” was improper and required reversal of defendant’s conviction).

prosecution's repeated use of defendant's alias, "Kilo," in murder case where drug dealing was at issue was improper, but in light of other evidence did not require reversal of defendant's conviction

Commonwealth v. Carter, 423 Mass. 506, 514-515 (1996) (prosecution’s repeated use of defendant’s alias, “Kilo,” in murder case where drug dealing was at issue was improper, but in light of other evidence did not require reversal of defendant’s conviction).


Context: And we conclude, contrary to CDOT's view, that "context" does not refer to circumstances that could arise if CDOT were required to obtain permits from local governments. Instead, context refers only to pertinent statutory language-the text of the AASIA and related statutes.

See Pima Fin. Serv. Corp. v. Selby, 820 P.2d 1124, 1128 (Colo.App.1991) (the phrase, "unless the context otherwise requires," refers not to the factual context of a particular transaction but to the language of the statute); see also Rowland v. Cal. Men's Colony, 506 U.S. 194, 199-200, 118 S.Ct. 716, 121 L.Ed.2d 656 (1993) (" 'Context' here means the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts, and this is simply an instance of the word's ordinary meaning.").


Context: State law, contract, or a promise implied from circumstances, are generally sufficient to create a property interest protected by due process.

holding that a collective bargaining agreement between school board and teachers union established a teachers' legitimate claim of entitlement to their positions at elementary school

See e.g., Loudermill, 470 U.S. at 538-39, 105 S.Ct. 1487 (finding that a state statute, permitting employee dismissal only for cause, created a property interest in continued employment); see also Leary v. Daeschner, 228 F.3d 729, 742 (6th Cir.2000) (holding that a collective bargaining agreement between school board and teachers union established a teachers’ legitimate claim of entitlement to their positions at elementary school); Ramsey v. Bd. of Educ., 844 F.2d 1268, 1272 (6th Cir.1988) (finding that a state statute and a school board policy providing for accumulation of sick days by public employees created a property interest in those sick days); Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971) (holding that due process also protected non-tenured public employees retained by the promise of continued employment).


finding that a state statute and a school board policy providing for accumulation of sick days by public employees created a property interest in those sick days


holding that due process also protected non-tenured public employees retained by the promise of continued employment


Context: Sidestepping these cases, Airlog argues that the FAA's actions are not susceptible to policy analysis because they were based on objective scientific standards.

holding that the decision regarding the amount of dynamite that would be safe under the circumstances was "governed by objective standards which the government must use due care in following" and is not susceptible to policy analysis

See Glacier Bay, 71 F.3d at 1453-54 (holding that “scientific hydrographic judgment” and “purely scientific considerations” do not involve policy considerations and are not protected by the discretionary function exception); Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1031 (9th Cir.1989) (holding that the decision not to remove materials during canal construction “was based not on policy judgments but on technical, scientific, engineering considerations” and, thus, is not susceptible to policy considerations); see also Arizona Maintenance Co. v. United States, 864 F.2d 1497, 1504 (9th Cir.1989) (holding that the decision regarding the amount of dynamite that would be safe under the circumstances was “governed by objective standards which the government must use due care in following” and is not susceptible to policy analysis).

holding that "scientific hydrographic judgment" and "purely scientific considerations" do not involve policy considerations and are not protected by the discretionary function exception


holding that the decision not to remove materials during canal construction "was based not on policy judgments but on technical, scientific, engineering considerations" and, thus, is not susceptible to policy considerations


Context: Although this precise issue has not heretofore been squarely addressed by our own Supreme Court, it has been raised in numerous other state and federal jurisdictions. A reading of these various cases reveals uniform acceptance of the proposition that prison disciplinary proceedings do not constitute a double jeopardy bar to subsequent criminal prosecution based on the same acts.

See State v. Kjeldahl, 278 N.W.2d 58 (Minn.1979) (wherein the Supreme Court of Minnesota, in accepting the above proposition, noted numerous other jurisdictions had, almost without exception, held that a federal or state charge for escape is not barred by the prior imposition of administrative discipline by prison authorities).

See also Patterson v. United States, 183 F.2d 327 (4th Cir.1950), cert. denied, 340 U.S. 893, 71 S.Ct. 200, 95 L.Ed. 647 (1951) (criminal prosecution for the crime of escape is not prohibited under the double jeopardy clause of the fifth amendment because a convict guilty thereof has upon his recapture been subjected to discipline by the prison authorities for the violation of prison discipline involved); United States v. Hedges, 458 F.2d 188 (10th Cir.1972) (administrative punishment does not render a subsequent judicial prosecution violative of the fifth amendment prohibition of double jeopardy); United States v. Newby, 11 F.3d 1143 (3d Cir.1993) (disciplinary sanctions imposed by prison authorities for infractions of prison regulations do not bar a subsequent criminal prosecution); Wild v. Commonwealth, 18, Va.App. 716, 446 S.E.2d 626 (1994) (administrative punishment imposed by prison officials does not render the subsequent judicial proceeding violative of the prohibition against double jeopardy).


administrative punishment does not render a subsequent judicial prosecution violative of the fifth amendment prohibition of double jeopardy


disciplinary sanctions imposed by prison authorities for infractions of prison regulations do not bar a subsequent criminal prosecution


administrative punishment imposed by prison officials does not render the subsequent judicial proceeding violative of the prohibition against double jeopardy


Context: Even if Baldovin is to be viewed as more comparable to a ruling on jurisdiction of the court, precedent indicates that the decision would stand as a bar to relitigation of the issue of jurisdiction. "The principles of res judicata apply to questions of jurisdiction as well as to other issues."

See also Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963) (finding of jurisdictional facts by Nebraska court bars relitigation of same factual issues in Missouri court); Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947) (diversity action in federal court barred by previous action dismissed by state court for lack of jurisdiction); Jackson v. Irving Trust, 311 U.S. 494, 61 S.Ct. 326, 85 L.Ed. 297 (1941) (collateral attack on judgment based on lack of jurisdiction barred by trial court’s denial of motion to dismiss for lack of jurisdiction); Stuhl v. Tauro, 476 F.2d 233 (1st Cir. 1973) (dismissal for failure to raise a substantial federal question bars later action based on identical claim); Boone v. Kurtz, 617 F.2d 435 (5th Cir. 1980) (dismissal of complaint for lack of jurisdiction bars later “almost identical” complaint); 1B Moore’s Federal Practice ¶ 0.405[5] at 655.

American Surety Co. v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 101, 77 L.Ed. 231 (1932) (constitutional claim in federal court barred by previous state court action in which due process challenge to jurisdiction was raised and rejected).


diversity action in federal court barred by previous action dismissed by state court for lack of jurisdiction


collateral attack on judgment based on lack of jurisdiction barred by trial court's denial of motion to dismiss for lack of jurisdiction


dismissal for failure to raise a substantial federal question bars later action based on identical claim


dismissal of complaint for lack of jurisdiction bars later "almost identical" complaint


Context: In his complaint, Lay alleged that the prosecution was in fact terminated in his favor. We conclude that this argument was waived, and we therefore do not address it.

See Bull v. Pinkham Eng’g Assocs., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000) (“Contentions not raised or fairly presented to the trial court are not preserved for appeal.”); see also In re S.B.L., 150 Vt. 294, 297, 553 A.2d 1078, 1081 (1988) (explaining that appellant bears burden of demonstrating how the trial court erred warranting reversal, and Supreme Court will not comb the record searching for error); see also V.R.A.P. 28(a)(4) (stating that appellant’s brief should explain what the issues are, how they were preserved, and what appellant’s contentions are on appeal, “with citations to the authorities, statutes, and parts of the record relied on”).

"Contentions not raised or fairly presented to the trial court are not preserved for appeal."


Context: For other debtors [who are not "individuals"], contempt proceedings are the proper means of compensation and punishment for willful violations of the automatic stay.

contempt involves maliciousness or lack of a good faith argument and belief that the party's actions were not in violation of a bankruptcy stay

See [In re Crysen/Montenay Energy Co., 902 F.2d 1098, 1104 (2d Cir.1990)] (contempt involves maliciousness or lack of a good faith argument and belief that the party’s actions were not in violation of a bankruptcy stay); Fidelity Mortg.

recognizing power of bankruptcy court under SS 105 of the code and Bankruptcy Rule 9020 to impose contempt sanctions for violations of automatic stay

Investors v. Camelia Builders, Inc., 550 F.2d 47, 51, 57 (2d Cir.1976) (allowing imposition of costs, including reasonable attorney’s fees under civil contempt powers for acts which bankruptcy judge found were done with “knowledge” of automatic stay and “deliberate[ ]” disregard of bankruptcy rules regarding requirements for relief), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977); Drywall Tapers, Local 1974 v. Local 530, 889 F.2d 389, 394-95 (2d Cir.1989) (knowledge of violation and terms of injunction required to hold party in civil contempt), cert. denied, [494] U.S. [1030], 110 S.Ct. 1478, 108 L.Ed.2d 615 (1990); see also In re First RepublicBank Corp., 113 B.R. at 279 (recognizing power of bankruptcy court under § 105 of the code and Bankruptcy Rule 9020 to impose contempt sanctions for violations of automatic stay); In re Brilliant Glass, Inc., 99 B.R. [16] at 18 [ (Bankr.C.D.Cal.1988) ] (finding contempt an appropriate remedy for violation of the automatic stay where § 362(h) by its words only benefits individual debtors).


allowing imposition of costs, including reasonable attorney's fees under civil contempt powers for acts which bankruptcy judge found were done with "knowledge" of automatic stay and "deliberate[ ]" disregard of bankruptcy rules regarding requirements for relief


knowledge of violation and terms of injunction required to hold party in civil contempt


Context: An action is "reasonable" under the Fourth Amendment, regardless of the individual officer's state of mind, "as long as the circumstances, viewed objectively, justify [the] action." In the instant case, the agents' limited search for weapons was reasonable in order to ensure officer safety prior to Nishimura's access to her and Defendant's belongings.

Long, 463 U.S. at 1049, 103 S.Ct. 3469 (protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger). Further, the search was reasonable as a goal of public safety as the FBI did not intend to keep Nishimura in custody at that time and wanted to avoid the possibility of providing Nishimura access to a weapon once beyond FBI supervision.

finding police officer's opening of car's trunk without warrant did not violate Fourth Amendment because officer reasonably believed trunk contained gun, trunk was vulnerable to intrusion by vandals, and public might be endangered if intruder removed gun

See Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (finding police officer’s opening of car’s trunk without warrant did not violate Fourth Amendment because officer reasonably believed trunk contained gun, trunk was vulnerable to intrusion by vandals, and public might be endangered if intruder removed gun); United States v. Feldman, 788 F.2d 544, 553 (9th Cir.1986) (finding that inventory search of car done on-the-spot was lawful because officer reasonably suspected that car contained gun and search was reasonable to ensure the immediate protection of the public’s safety); but see United States v. Gooch, 6 F.3d 673, 680 (9th Cir.1993) (finding search without warrant of arrest ed defendant’s tent in which officers believed there was a firearm not justified by need to protect public because officers could have prevented children from entering tent until warrant was obtained).


finding that inventory search of car done on-the-spot was lawful because officer reasonably suspected that car contained gun and search was reasonable to ensure the immediate protection of the public's safety


finding search without warrant of arrest ed defendant's tent in which officers believed there was a firearm not justified by need to protect public because officers could have prevented children from entering tent until warrant was obtained


Context: In contrast, cases applying the harmless error analysis to the introduction of presumptively coerced statements are legion.

See e.g. Commonwealth v. Bullard, 465 Pa. 341, 349-350, 350 A.2d 797, 801 (1976) (“Because a confession is the most damning of all evidence, we cannot say that we are convinced beyond a reasonable doubt that the error did not affect the judgment.”); Commonwealth v. Carbaugh, 356 Pa.Super. 42, 47, 514 A.2d 133, 137 (1986) (same conclusion); Commonwealth v. Petrino, 332 Pa.Super. 13, 29, 480 A.2d 1160, 1168 (1984) (same conclusion); but see Commonwealth v. Holland, 518 Pa. 405, 415, 543 A.2d 1068, 1072 (1988) (introduction of statements made by lay witnesses regarding the voluntariness of a confession found to be harmless error); Commonwealth v. Maloney, 469 Pa. 342, 355, 365 A.2d 1237, 1244 (1976) (curative instruction given following improper admission of statement regarding right to silence held sufficient not to require mistrial); Commonwealth v. Mitchell, 246 Pa.Super. 132, 138, 369 A.2d 846, 849 (1977) (recognizing that harmless error analysis is appropriate even if presumptively coerced confession is improperly introduced).

holding that although Miranda required the suppression of "testimonial" statements made before defendant was advised of his constitutional rights, "the state court is free, of course, to consider this [harmless error] question upon remand."

See e.g. Pennsylvania v. Muniz, 496 U.S. 582, 605 & n. 22, 110 S.Ct. 2638, 2652 & n. 22, 110 L.Ed.2d 528, 555 & n. 22 (1990) (holding that although Miranda required the suppression of “testimonial” statements made before defendant was advised of his constitutional rights, “the state court is free, of course, to consider this [harmless error] question upon remand.”); Berkemer v. McCarty, 468 U.S. 420, 443, 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317, 336 (1984) (applying harmless error analysis to improper introduction of statements obtained during custodial interrogation and without prior Miranda warnings); Commonwealth v. Hubble, 509 Pa. 497, 515, 504 A.2d 168, 177 (1986) (applying harmless error analysis to improper introduction of statements obtained in violation of Fifth Amendment right to counsel); Commonwealth v. Rodgers, 472 Pa. 435, 449, 372 A.2d 771, 777 (1977) (applying harmless error analysis to improper introduction of statements made following refusal to honor exercise of right to remain silent); Commonwealth v. Cooper, 468 Pa. 481, 486, 364 A.2d 296, 299 (1976) (applying harmless analysis to prosecutor’s improper comment on defendant’s election to remain silent); Commonwealth v. Davis, 452 Pa. 171, 178, 305 A.2d 715, 719 (1973) (same); Commonwealth v. Caswell, 316 Pa.Super. 462, 475, 463 A.2d 456, 462 (1983) (Cavanaugh, J., dissenting) (applying harmless error analysis to improper introduction of statements obtained following refusal to honor election to remain silent); Commonwealth v. May, 314 Pa.Super. 577, 582, 461 A.2d 308, 310 (1983) (Cavanaugh, J., dissenting) (applying harmless error analysis to improper introduction of statements obtained before defendant was advised of Miranda rights); Commonwealth v. Flynn, 248 Pa.Super. 62, 72, 374 A.2d 1317, 1322 (1977) (applying harmless error analysis to improper introduction of testimony regarding defendant’s exercise of right to silence). Indeed, the only cases involving presumptively coerced statements which even arguably suggest that harmless error doctrine should not be applied are those in which the courts may be seen to apply a virtually per se harmful error presumption in the analysis.


curative instruction given following improper admission of statement regarding right to silence held sufficient not to require mistrial


recognizing that harmless error analysis is appropriate even if presumptively coerced confession is improperly introduced


applying harmless error analysis to improper introduction of statements obtained during custodial interrogation and without prior Miranda warnings


applying harmless error analysis to improper introduction of statements obtained in violation of Fifth Amendment right to counsel


applying harmless error analysis to improper introduction of statements made following refusal to honor exercise of right to remain silent


applying harmless analysis to prosecutor's improper comment on defendant's election to remain silent


applying harmless error analysis to improper introduction of testimony regarding defendant's exercise of right to silence


"Because a confession is the most damning of all evidence, we cannot say that we are convinced beyond a reasonable doubt that the error did not affect the judgment."


Context: Also, and again for the reason that the first appeal is closed, we reject any contention, see Reply Brief of Lowry al 12, that the filing of the first notice of appeal presented "unique circumstances" justifying this Court's assertion of jurisdiction over an otherwise untimely appeal.

explaining that "unique circumstances" doctrine "applies only where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by ' a judicial officer that this act has been properly done"

See Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989) (explaining that "unique circumstances” doctrine "applies only where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by ' a judicial officer that this act has been properly done”).

noting that "the continued vitality of the doctrine has been questioned"

But see Schwartz v. Pridy, 94 F.3d 453, 456 n. 3 (8th Cir.1996) (noting that "the continued vitality of the doctrine has been questioned”).


Context: The administrative law judge had no evidence of functional limitations from the alleged incontinence or mental impairments. As a result, the administrative law judge did not err by assessing the residual functional capacity without incorporating limitations from incontinence.

See Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir.1988) (upholding a finding that incontinence did not render the claimant disabled notwithstanding evidence of bladder leakage and possible need for a second operation); see also SSR 96-8P, 1996 WL 374184, at *1 (1996) (“The RFC assessment considers only functional limitations and restrictions that result from an individual’s medically determinable impairment ... including the impact of any related symptoms.”).

"The RFC assessment considers only functional limitations and restrictions that result from an individual's medically determinable impairment ... including the impact of any related symptoms."


Context: Even though the United States consented to relinquish its interest by delivering a quitclaim deed to the Sheldens so that the Sheldens eventually held clear title after the foreclosure, this event does not affect whether the original forfeiture judgment constituted a taking. The authorities are clear that forfeiture of mortgaged property results in a taking from the mortgage holder at the time of forfeiture, when title is transferred to the United States.

"After transfer to the United States the liens ... could not be enforced because of the sovereign immunity of the Government and its property from suit."

Armstrong, 364 U.S. at 46, 80 S.Ct. at 1567 ("After transfer to the United States the liens ... could not be enforced because of the sovereign immunity of the Government and its property from suit.”); Metmor, 819 F.2d at 450 (just compensation defined as “fair market value of property on the date it is appropriated ... the date of the transfer of title”). The United States owed just compensation to the Sheldens, defined as the fair market value of their property interest on the effective date of the forfeiture judgment.

"Fair market value under the Fifth Amendment is normally ascertained at the date ... of the taking."

See Yancey, 915 F.2d at 1543 (“Fair market value under the Fifth Amendment is normally ascertained at the date ... of the taking.”) (citing Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 14, 104 S.Ct. 2187, 2196, 81 L.Ed.2d 1 (1984)). By relinquishing its interest in the Moraga property, the United States only partially compensated the Shel-dens.


just compensation defined as "fair market value of property on the date it is appropriated ... the date of the transfer of title"


Context: Third, despite the Board's acknowledged breach of the duty to assist here, the majority declines to hold open the 1990 Board decision on the basis that, at the time of that decision, the law pertaining to VA's duty to assist by obtaining SSA records "was not clearly defined." Ante at 109. By this, the majority apparently means that at the time of the 1990 Board decision there was no VA Adjudication Procedure Manual M21-1 (Manual M21-1) provision, or other internal VA issuance, extant that required VA to undertake the action that it failed to do (i.e., to obtain SSA records after receiving notice of an SSA decision awarding the appellant benefits on the basis of total unemployability), and that the Court's caselaw holding to that effect had not yet been issued.

Ante at 109-110; see Hayre, 188 F.3d at 1331-32 (discussing VA Adjudication Procedure Manual M21-1, Part VI, Para. 6.04(b), requiring VA to make supplemental request for SMRs when initial request results in obtaining only partial records); see also Masors v. Derwinski, 2 Vet.App. 181, 188 (1992) (VA failure to obtain SSA records after receipt of SSA decision determining unemployability is breach of duty to assist). However, the majority ignores that, at the time of the 1990 Board decision, Congress had mandated that VA’s duty to assist a well-grounded claimant “shall include requesting information as described in section 3006 of this title.” 38 U.S.C. § 3007(a) (1988) (recodified in 1991 as 38 U.S.C. § 5107(a) by Pub.L. No. 102-40, § 402(b)(1), (d)(1), 105 Stat. 238, 239).


Context: We have interpreted Doyle to allow prosecutors to comment on post -Miranda silence in response to defense arguments.

"By electing to dwell on the justifications for petitioner's silence after arrest, defense counsel opened the door for the prosecutor to suggest contrary inferences."

See Bradford v. Stone, 594 F.2d 1294, 1296 (9th Cir.1979) (per curiam), overruled on other grounds by Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (“By electing to dwell on the justifications for petitioner’s silence after arrest, defense counsel opened the door for the prosecutor to suggest contrary inferences.”); see also United States v. Kennedy, 714 F.2d 968, 977 (9th Cir.1983) (allowing invited comment that defendant was “not like every other witness in the case” in response to defense counsel’s argument).

allowing invited comment that defendant was "not like every other witness in the case" in response to defense counsel's argument


Context: The case law insists that an effective waiver of counsel must include a colloquy that contains an inquiry into the six areas listed above, conducted on the record by the judge. "[A]ny shortcoming relative to this colloquy cannot be gauged to the quality of an accused's self-representation nor justified on the basis of his prior experience with the system."

See also Commonwealth v. Davis, 393 Pa.Super. 88, 573 A.2d 1101, 1106 (Pa.Super.1990) (that appellant has been advised of his right to counsel on appeal cannot be inferred from his having prior criminal record).

appellant's prior experiences as a criminal defendant are irrelevant to the question of whether a "penetrating and comprehensive" counsel waiver colloquy was conducted

See Commonwealth v. Dale, 286 Pa.Super. 308, 428 A.2d 1006 (Pa.Super.1981) (appellant’s prior experiences as a criminal defendant are irrelevant to the question of whether a “penetrating and comprehensive” counsel waiver colloquy was conducted).


Context: A defendant's making a profit does not preclude its receiving First Amendment protection.

" 'That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.' "

Time Inc. v. Hill, 385 U.S. 374, 396-97, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) (“ ‘That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.’ ”) (citations omitted).

"Speech is protected even though it is carried in a form that is sold for profit."

See also ETW, 332 F.3d at 924 (“Speech is protected even though it is carried in a form that is sold for profit.”) (citations omitted) and (“The fact that expressive materials are sold does not diminish the degree of protection to which they are entitled under the First Amendment”) (citing City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 756 n. 5,108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)).


Context: Applying these principles to Chapter 93A claims involving HAMP, courts have held that a bank's handling of efforts to obtain a home loan modification can be independently actionable under Chapter 93A, but only when the conduct is an unfair or deceptive business practice in and of itself. See Dill v. Am. Home Mortg.

"Young's Chapter 93A claim ... includes defendants' handling of her entire case, beginning with the negotiations surrounding her forbearance agreement through her attempts to obtain a permanent loan modification."

Servicing, Inc., 935 F.Supp.2d 299, 306 (D.Mass.2013) (Chapter 93A claim for misleading plaintiffs regarding criteria for HAMP modification and status of their modification application); Kozaryn v. Ocwen Loan Servicing, LLC, 784 F.Supp.2d 100, 102-03 (D.Mass.2011) (“A violation of HAMP that is unfair or deceptive in and of itself could, therefore, create a viable claim under Chapter 93A even though HAMP does not provide a private cause of action.”); see also Young, 717 F.3d at 240 (“Young’s Chapter 93A claim ... includes defendants’ handling of her entire case, beginning with the negotiations surrounding her forbearance agreement through her attempts to obtain a permanent loan modification.”).


"A violation of HAMP that is unfair or deceptive in and of itself could, therefore, create a viable claim under Chapter 93A even though HAMP does not provide a private cause of action."


Context: We agree that he received something, and that it would be hard to call it anything but an appeal, but we cannot agree that what he received passed constitutional muster. The purpose of having counsel on appeal is to get a decision on the merits of the appealable issues the record presents.

"[t]he right to the effective assistance of counsel is ... the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing"

See Lucey, supra, at 393, 105 S.Ct. 830 (“the services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits”); 394 n. 6 (counsel is necessary “for the defendant to obtain a decision at all — much less a favorable decision — on the merits of the case”); 395 (“the Constitution cannot tolerate trials in which counsel, though present in name, is unable to assist the defendant to obtain a fair* decision on the merits”); see also United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (“[t]he right to the effective assistance of counsel is ... the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing”).

"the services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits"


Context: The policy of the United States Supreme Court is that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who con curred in the judgments on the narrowest grounds." The Pennsylvania Supreme Court, though taking a narrower view, has differentiated between the reasoning of a plurality decision, which is not binding authority, and the "conclusion" of such a decision, which is still "binding on the parties in that particular case."

looking to the "last explained state-court judgment" to determine state courts' basis for rejecting a habeas petitioner's claims, ignoring only a "silent" disposition by a higher court

See Ylst v. Nunnemaker, 501 U.S. 797, 805, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (looking to the “last explained state-court judgment” to determine state courts’ basis for rejecting a habeas petitioner’s claims, ignoring only a “silent” disposition by a higher court).

Cf. Holley v. Yarborough, 568 F.3d 1091, 1099 (9th Cir.2009) (reviewing a state appellate court decision in an AEDPA case where the state supreme court had denied the petition for review of that decision without comment); Joseph v. Coyle, 469 F.3d 441 (6th Cir.2006) (treating state supreme court decision as “last reasoned decision” as to claims that it explicitly decided, and state appeals court ruling as “last reasoned decision” as to claims the supreme court declined to address). Therefore, we look to the Pennsylvania Supreme Court decision in our review under AEDPA.


treating state supreme court decision as "last reasoned decision" as to claims that it explicitly decided, and state appeals court ruling as "last reasoned decision" as to claims the supreme court declined to address


Context: Our precedent, however, leads to the conclusion that SS 1252(a)(2)(B)(i) overcomes this presumption and places claims like Leyva's beyond the limits of our jurisdiction.

concluding that, even if the petitioner had asserted properly a denial of due process under the Fifth Amendment, SS 1252(a

See Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir.2004) (concluding that, even if the petitioner had asserted properly a denial of due process under the Fifth Amendment, § 1252(a)(2)(B)(i) would have precluded the court’s jurisdiction, but allowing jurisdiction over constitutional claims which may present “bizarre miscar riages of justice.”); Kharkhan, 336 F.3d at 604 (concluding that § 1252(a)(2)(B)(i) precluded jurisdiction over the petitioner’s constitutional claim); see also Bosede v. Ashcroft, 309 F.3d 441, 446 (7th Cir.2002) (concluding that a jurisdiction-limiting provision precluded our consideration of the petitioner’s “claim that his Fifth Amendment due process rights were violated”); Samirah v. O’Connell, 335 F.3d 545, 549 (7th Cir.2003) (concluding that § 1252(a)(2)(B)(ii) precluded jurisdiction over the petitioner’s challenge, outside the context of a habeas proceeding, to the revocation of his advance parole).

concluding that a jurisdiction-limiting provision precluded our consideration of the petitioner's "claim that his Fifth Amendment due process rights were violated"


Context: The Sixth Amendment right to a trial by jury requires "criminal convie-tions to rest upon a jury determination that the defendant is guilty of every element of the erime with which he is charged, beyond a reasonable doubt." However, a judgment of NGRI does not constitute a conviction; rather, it operates as an acquittal of the charged offenses.

See Jacobs v. Carmel, 869 P.2d 207, 209 (Colo.1994) (stating that a person committed after a finding of insanity "will not actually have been convicted of the crime charged"); see also Parks v. Dist. Court, 180 Colo. 202, 503 P.2d 1029, 1033 (1972) (holding that insanity is "a complete defense to the criminal charge").


Context: Because defendants were put on notice of the factual predicate for all of the potential antitrust claims -- whether federal or state-- of class members, regardless of whether they stayed in the class or opted out and filed individual actions, no "potential for unfair surprise" would be created by tolling the statutes of limitations for plaintiffs' state law claims.

once class action is filed, "[t]he defendant will be aware of the need to preserve evidence and witnesses respecting the claims of all the members of the class"

Crown, Cork, 462 U.S. at 353, 103 S.Ct. 2392 (once class action is filed, “[t]he defendant will be aware of the need to preserve evidence and witnesses respecting the claims of all the members of the class”).

when a class action is filed, "the defendant is put on notice of the substance and nature of the claims against it" as to any subsequent individual claims that might be asserted arising out of the same set of facts

See also Vaccariello, 763 N.E.2d at 163 (when a class action is filed, “the defendant is put on notice of the substance and nature of the claims against it” as to any subsequent individual claims that might be asserted arising out of the same set of facts); Staub, 726 A.2d at 967 (“although defendants did not know of the specific claim of these plaintiffs until they commenced this suit, defendants knew within the period of limitations that if they were successful in defeating class certification, they would probably face individual suits”).


"although defendants did not know of the specific claim of these plaintiffs until they commenced this suit, defendants knew within the period of limitations that if they were successful in defeating class certification, they would probably face individual suits"


Context: . In contrast, if the worker accepts an assignment from the temporary agency, but refuses without good cause to complete that specific assignment, the worker may face disqualification under the "quit" provisions.

See McDonnell v. Anytime Temporaries, 349 N.W.2d 339, 341 (Minn.App.1984) (disqualifying relator for quitting when he accepted two-week assignment from temporary agency, but worked only one day and then refused to complete assignment); see also Holman v. Olsten Corp., 389 N.W.2d 236, 240-41 (Minn.App.1986) (relator who accepted six-week assignment with temporary agency, then quit after two days, was not disqualified, but her benefits were suspended for period she would have held temporary assignment).


Context: As the district court held, "circuit law is not clearly established federal law as determined by the Supreme Court and is not, alone, a basis for the Court to grant habeas relief."

stating a court of appeal's decision "does not constitute clearly established Federal law, as determined by the Supreme Court, SS 2254(d)(1), so any failure to apply that decision cannot independently authorize habeas relief under AEDPA"

See Renico v. Lett, — U.S. —, 130 S.Ct. 1855, 1866, 176 L.Ed.2d 678 (2010) (stating a court of appeal’s decision “does not constitute clearly established Federal law, as determined by the Supreme Court, § 2254(d)(1), so any failure to apply that decision cannot independently authorize habeas relief under AEDPA”) (internal quotation marks omitted); Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir.2010) (“[Cjlearly established law as determined by [the Supreme Court] refers to the holdings, as opposed to the dicta, of [the Supreme Court’s decisions].” (alterations in original) (citation omitted)); but see Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.2000) (stating Circuit law “may be persuasive authority for purposes of determining whether a particular state court decision is an ‘unreasonable application’ of Supreme Court law, and also may help [courts of appeals] determine what law is ‘clearly established’ ”) (citation omitted).

stating Circuit law "may be persuasive authority for purposes of determining whether a particular state court decision is an 'unreasonable application' of Supreme Court law, and also may help [courts of appeals] determine what law is 'clearly established' "


"[Cjlearly established law as determined by [the Supreme Court] refers to the holdings, as opposed to the dicta, of [the Supreme Court's decisions]." (alterations in original


Context: The determination of what is reasonable falls squarely within the province of the fact finder -- "what is a reasonable time is a question of fact, varied by the circumstances of each case." Further, in the context of the supreme court's analysis of "the circumstances" of that case, the reference to "reasonable time" and "market fluctuations" was to the seller's efforts to make a fair resale, not the market's actual condition at the time.

See 65 Tex. at 591 (court discusses plaintiffs efforts to sell property after breach and not the actual market conditions during the period between breach and resale); cf. Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426 (Tex.1995) (injured party, following a breach, must exercise reasonable care to minimize his damages if it can be done with slight expense and reasonable effort).


Context: The officer in this case asked one question relating to the name "Steve Snobl" on the rental agreement and was told by Mr. Williams that the individual was his uncle who had rented the car in Phoenix. The remaining questions, as well as the subsequent detention of Mr. Williams, focused on whether Mr. Williams was carrying drugs in his car. Thus, although the discrepancy provided the officer with justification to detain Mr. Williams for the purpose of determining whether he was in lawful possession of the car, detention for the purpose of the canine drug sniff was justified only if the officer had reasonable suspicion that Mr. Williams was transporting drugs.

noting that investigations of traffic violations " 'are circumscribed by Terry's scope requirement' "

See United States v. Jones, 44 F.3d 860, 872 (10th Cir.1995) (questions regarding contraband that were concurrent with a legitimate detention were justified only on reasonable suspicion of drug activity); see also Holt II, 264 F.3d at 1230 (noting that investigations of traffic violations “ ‘are circumscribed by Terry’s scope requirement’ ”) (quoting United States v. Botero-Ospina, 71 F.3d 783, 788 (10th Cir.1995)).


Context: One way that the Supreme Court has ensured that the Cronic exception will remain rare, the scope of the decision will be narrow, and the burden of establishing the exception will be heavy is by requiring that there be a complete denial or total failure of counsel, if not at trial generally, at least at a critical stage of the prosecution.

noting that counsel's failure to test the prosecution's case "at specific points" does not rise to the level of Cronic error

See Cronic, 466 U.S. at 659, 104 S.Ct. at 2047 (“The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.”); see also Bell, 535 U.S. at 697, 122 S.Ct. at 1851 (noting that counsel’s failure to test the prosecution’s case “at specific points” does not rise to the level of Cronic error).

"The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial."


Context: 6. Even if the court were to hold for plaintiff, any order would be limited to restoration of pay forfeited and rank, ex-pungement of reference to the Article 15 proceedings in plaintiff's records, and back-pay for the pay differential until plaintiff's enlistment expired. The court lacks the power to effect plaintiff's reenlistment.

United States v. Testan, 424 U.S. 392, 402, 96 S.Ct. 948, 955, 47 L.Ed. 114 (1976) (“The established rule is that one is not entitled to the benefits of a position until he has been duly appointed to it....”); see Maier v. Orr, 754 F.2d 973, 983 (Fed.Cir.1985) (no jurisdiction to award relief beyond current enlistment); Thompson v. United States, 221 Ct.Cl. 983 (1979) (no jurisdiction over claim for refusal of reenlistment absent some special provision of law giving a right to reenlist); Austin v. United States, 206 Ct.Cl. at 723 (“United States has undertaken to pay ... [enlisted men] only to the end of the current enlistment, unless it properly discharges them prior to that time....”) (citations omitted).

"The established rule is that one is not entitled to the benefits of a position until he has been duly appointed to it...."


"United States has undertaken to pay ... [enlisted men] only to the end of the current enlistment, unless it properly discharges them prior to that time...."


Context: By the time the officers arrived at Dagdagan's home, any emergency or exigency that might have justified their warrantless entry had long since passed.

finding warrantless entry justified to provide assistance where officers witnessed, through a window, a young man striking an adult in the face, "sending the adult to the sink spitting blood"

See United States v. Johnson, 256 F.3d 895, 907 (9th Cir.2001) (“[T]he critical time for determining whether any exigency exists is the moment the officer makes the warrantless entry.”); cf. Brigham City, 547 U.S. at 406, 126 S.Ct. at 1949 (finding warrantless entry justified to provide assistance where officers witnessed, through a window, a young man striking an adult in the face, “sending the adult to the sink spitting blood”).

"[T]he critical time for determining whether any exigency exists is the moment the officer makes the warrantless entry."


Context: 122 This rationale of full disclosure similarly applies in situations in which defendants raise other mental conditions to aid in their defense.

See People v. Herrera, 87 P.3d 240, 247 (Colo.App.2003) (noting that the provision precluding defense expert testimony on mental condition unless the defendant cooperates with compulsory mental examination "is simply another means to discourage defendants from raising an insanity defense and then refusing to cooperate in the testing process that is necessary to determine the validity of the defense"); see also City & County of Denver v. Casados, 862 P.2d 908, 914 (Colo.1993) (construing provisions in the context of the statute as a whole). Accordingly, we conclude that the statute, although affecting the procedure of the courts, also concerns the public policy of full disclosure in criminal cases involving a defense based on a defendant's mental condition.


Context: New York courts are not bound by Second Circuit interpretations of state case law. This is true even if the Second Circuit has placed a gloss on a state court decision in order to rescue that decision from federal constitutional shoals.

"[T]he interpretation of a Federal constitutional question by the lower Federal courts ... [is] not binding [on the New York Court of Appeals]."

See Kin Kan, 78 N.Y.2d at 60, 571 N.Y.S.2d 436, 574 N.E.2d 1042, (“[T]he interpretation of a Federal constitutional question by the lower Federal courts ... [is] not binding [on the New York Court of Appeals].”); cf. People v. Joyner, 303 A.D.2d 421, 755 N.Y.S.2d 866, 867 (2d Dep’t 2003) (rejecting a lower federal court’s conclusion that state law violated the federal constitution).

rejecting a lower federal court's conclusion that state law violated the federal constitution


Context: At oral argument, counsel for the Secretary was unable to provide any explanation for why Matthews's request for a hearing on the Garden Gate Manor SNF discharge issue went unheeded. In light of the Secretary's unexplained failure to provide Matthews a requested hearing and the fact that the Garden Gate Manor SNF discharge issue was ultimately presented to the Secretary and considered by him in the ALJ's April 20, 2000 decision on whether Matthews was entitled to coverage for the full period of his stay at Gardens at Manhattan SNF, we, like the District Court, do not reject plaintiffs' claim for failure to exhaust administrative remedies.

"[I]n certain special cases, deference to the Secretary's conclusion as to the utility of pursuing the claim through administrative channels is not always appropriate."

See Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (providing that under the exhaustion requirement of 42 U.S.C. § 405(g), ''[t]he waivable element is the requirement that the administrative remedies prescribed by the Secretary be exhausted” and that ”[t]he nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary”); see also Heckler v. Ringer, 466 U.S. 602, 618, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (”[I]n certain special cases, deference to the Secretary's conclusion as to the utility of pursuing the claim through administrative channels is not always appropriate.”); City of New York v. Heckler, 742 F.2d 729, 736 (2d Cir.1984) (commenting that judicial waiver of 42 U.S.C. § 405(g)'s exhaustion requirement may be appropriate where "plaintiff's legal claims are collateral to the demand for benefits”).

providing that under the exhaustion requirement of 42 U.S.C. SS 405(g


Context: First, the medical records from the relevant period provide substantial evidence for the ALJ's implicit finding that Christina did not meet or medically equal the criteria for subsections B or C of Listing 103.03.

noting that ALJ's failure to address specific listing is not reversible error if record supports overall conclusion

See Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 721 n. 3 (8th Cir.2005) (noting that ALJ’s failure to address specific listing is not reversible error if record supports overall conclusion); Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir.2004) (burden is on claimant to show she meets or equals listing’s requirements; to meet listing, impairment must meet all specified criteria); see also Neal ex rel. Walker v. Barnhart, 405 F.3d 685, 689 (8th Cir.2005) (child’s impairment is medically equal to listing if it is at least equal in severity and duration to listing’s medical criteria).

child's impairment is medically equal to listing if it is at least equal in severity and duration to listing's medical criteria


Context: See, e.g., RAP 2.2(b)(6) (providing that the State or a local government may appeal only "[a] sentence in a criminal case which is outside the standard range for the offense or which the state or local government believes involves a miscalculation of the standard range"); RCW 9.94A.585(1) ("A sentence within the standard sentence range for the offense shall not be appealed."). This precept arises from the notion that, so long as the sentence falls within the proper presumptive sentencing ranges set by the legislature, there can be no abuse of discretion, as a matter of law as to the sentence's length. However, this prohibition does not bar a party's right to challenge the underlying legal conclusions and determinations by which a court comes to apply a particular sentencing provision.

permitting appellate review of a criminal sentence where a defendant can demonstrate that the "sentencing court had a duty to follow some specific procedure required by the [Sentencing Reform Act], and that the court failed to do so"

See State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 (1993) (permitting appellate review of a criminal sentence where a defendant can demonstrate that the “sentencing court had a duty to follow some specific procedure required by the [Sentencing Reform Act], and that the court failed to do so”). Thus, it is well established that appellate review is still available for the correction of legal errors or abuses of discretion in the determination of what sentence applies.

App. 869, 876, 20 P.3d 476 (2001) (determination of whether two or more crimes should be considered the “same criminal conduct” for purposes of sentencing); see also State v. Herzog, 112 Wn.2d 419, 423, 771 P.2d 739 (1989) (noting that an absolute prohibition on the right to appeal would violate article I, section 22 of the Washington Constitution).


See, e.g., State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999) (misclassification of out-of-state convictions for purposes of calculating offender score); State v. Channon, 105 Wn.


determination of whether two or more crimes should be considered the "same criminal conduct" for purposes of sentencing


Context: In sum, despite defendants' admirable attempts to suggest that individual issues will abound, the court is unpersuaded. This case involves horizontal price-fixing allegations and common issues will clearly predominate.

observing that "predominance is a test readily met in certain cases alleging ... violations of the antitrust laws"

See, e.g., Vitamins Antitrust Lit., 209 F.R.D. at 262-70 (rejecting arguments similar to those raised by defendants in this case and concluding the predominance requirement was satisfied in a horizontal price-fixing case involving purchasers of vitamins); Linerboard Antitrust Lit., 203 F.R.D. at 214-23 (same in case involving purchasers of corrugated paper made using linerboard); In re Flat Glass Antitrust Lit., 191 F.R.D. 472, 484-88 (W.D.Pa.1999) (same in case involving purchasers of flat glass products); cf. Amchem, 521 U.S. at 625, 117 S.Ct. 2231 (observing that “predominance is a test readily met in certain cases alleging ... violations of the antitrust laws”).


same in case involving purchasers of corrugated paper made using linerboard


Context: To establish the second element (that the defendants "obtained]" the plaintiffs information), it is sufficient for a plaintiff to show that "people with access to the DVS Database viewed [the plaintiffs] personal driver's license information." Here again, the Eighth Circuit has also recently reached the same conclusion.

"In the Court's view, information may be 'obtained' simply through viewing."

McDonough, 799 F.3d at 944 (“In the context of the DPPA, the word ‘obtain’ unambiguously includes access and observation of the data.”); see also Nelson v. Jesson, No: 13-340, 2013 WL 5888235, at *2 (D.Minn. Nov. 1, 2013) (“In the Court’s view, information may be ‘obtained’ simply through viewing.”).

"In the context of the DPPA, the word 'obtain' unambiguously includes access and observation of the data."


Context: . The administrative judge's decision is the final decision of the Board, and our jurisdiction over these appeals arises under 28 U.S.C. SS 1291. In the proceedings below, Twyman and Garcia also asserted discrimination claims, but they voluntarily dismissed those claims before the district court granted summary judgment. Our jurisdiction is not affected by the dismissal of the discrimination claims.

See Afifi v. U.S. Dept. of Interior, 924 F.2d 61 (4th Cir.1991) (discussing the jurisdictional issues arising in appeals from the Board and holding that in a mixed case involving a good-faith discrimination claim and a nondiscrimination claim, the district court does not lose jurisdiction over the nondiscrimination claim when the discrimination claim is disposed of); see also Porsche Cars N.A., Inc. v. Porsche.net, 302 F.3d 248, 255 (4th Cir.2002) (noting that there is “no support for the ... proposition that the conditions that create subject-matter jurisdiction must necessarily persist throughout the life of a case”).

noting that there is "no support for the ... proposition that the conditions that create subject-matter jurisdiction must necessarily persist throughout the life of a case"


Context: Parol evidence may be used, however, to show that false representations were made when the contract was executed.

Kero v. Terminal Construction Corp., 6 N.J. 361, 78 A.2d 814 (1951) (parol evidence admissible where defendant agreed to fill in certain terms in contract but did not do so). Such an exception is limited, though, to those instances where one party seeks to disaffirm the contract rather than alter or change the agreement.

parole evidence "does not preclude evidence that would tend to subvert or overthrow the writing entirely"

May v. Shohan, 131 N.J.L. 321, 36 A.2d 409 (1944); See also Emerson, 300 A.2d at 189 (parole evidence “does not preclude evidence that would tend to subvert or overthrow the writing entirely”).


Context: Having carefully reviewed the record, we conclude the district court did not clearly err in denying the acceptance-of-responsibility reduction, given its finding that Bennett belatedly reported a post-plea arrest to pretrial services. Further, the court did not plainly err in ordering restitution.

See U.S.S.G. § 5El.l(a)(l) (1995) (requiring restitution); United States v. Riebold, 135 F.3d 1226, 1231 (8th Cir.) (plain-error review where defendant fails to object to restitution order at sentencing), cert. denied, 524 U.S. 944, 118 S.Ct. 2356, 141 L.Ed.2d 725 (1998); see also United States v. Manzer, 69 F.3d 222, 229 (8th Cir.1995) (restitution may be ordered even though defendant is indigent at time of sentencing). We have reviewed the record independently pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and have found no nonfrivolous issues.


Context: I disagree with the conclusion of the Majority that these ineffectiveness claims are waived. See Majority Op. at p. 328. After much reflection upon, and study of, our precedent in this area, I believe that Appellant, through tag lines and boilerplate language, has sufficiently presented all of these claims for our review, despite framing some as trial court error, constitutional violations, prosecutorial misconduct, and trial counsel ineffectiveness.

See Commonwealth v. Hawkins, 567 Pa. 310, 787 A.2d 292 (2001) (reviewing merits of claims of ineffectiveness of PCRA counsel for failing to raise prior counsel’s ineffectiveness); Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 525 (2001) (“a majority of this Court would presently continue to allow a degree of latitude” in developing layered ineffective assistance of counsel claims in briefs); Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 598 n. 3 (2000) (noting that “these ineffectiveness claims are properly layered because appellant argues that all of his prior counsel were ineffective for failing to assert the claims of trial court error”); Commonwealth v. Marrero, 561 Pa. 100, 748 A.2d 202, 204 n. 1 (2000) (claims of trial counsel ineffectiveness accompanied by claims of appellate counsel ineffectiveness for failing to raise trial counsel ineffectiveness claims are “properly layered”); but see Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 939-40 (2001) (claims of trial court error, constitutional error, and prosecuto-rial misconduct are waived despite being accompanied by tag line asserting ineffectiveness of prior counsel for failing to raise such claims); Commonwealth v. Abdul-Salaam, 808 A.2d 558, 560 (Pa.2001) (same).

reviewing merits of claims of ineffectiveness of PCRA counsel for failing to raise prior counsel's ineffectiveness


"a majority of this Court would presently continue to allow a degree of latitude" in developing layered ineffective assistance of counsel claims in briefs


noting that "these ineffectiveness claims are properly layered because appellant argues that all of his prior counsel were ineffective for failing to assert the claims of trial court error"


claims of trial counsel ineffectiveness accompanied by claims of appellate counsel ineffectiveness for failing to raise trial counsel ineffectiveness claims are "properly layered"


Context: A similar rule governs aircraft overflights. Where a plaintiff complains only of noise resulting from normal aircraft operations, not passing directly overhead, this court follows the general rules springing from Causby to deny recovery.

absent physical invasion of the property, there can be no recovery for "noises and vibrations incident to the running of trains, the necessary emission of smoke and sparks from the locomotives, and similar annoyances inseparable from the normal and non-negligent operation of a railroad"

See Avery v. United States, 165 Ct.Cl. 357, 330 F.2d 640, 645 (1964); see also Batten v. United States, 306 F.2d 580, 585 (10th Cir.1962) (holding that where aircraft operations did not physically invade the landowner’s estate, incidental smoke, vibrations and noise were not compensable takings); cf. Richards, 233 U.S. at 554, 34 S.Ct. at 657 (absent physical invasion of the property, there can be no recovery for “noises and vibrations incident to the running of trains, the necessary emission of smoke and sparks from the locomotives, and similar annoyances inseparable from the normal and non-negligent operation of a railroad”). However, where, as here, plaintiffs complain of a peculiarly burdensome pattern of activity, including both intrusive and non-intrusive flights, that significantly impairs their use and enjoyment of their land, those plaintiffs may state a cause of action. Cf. Griggs, 369 U.S. at 87, 82 S.Ct. at 532 (affirming that taking occurred even though some of the activities of which the plaintiff complained were near, but not over, the plaintiffs property); Richards, 233 U.S. at 557, 34 S.Ct. at 658 (“Construing the acts of Congress in the light of the Fifth Amendment, they do not authorize the imposition of so direct and peculiar and substantial a burden upon plaintiffs property without compensation to him.”); Branning, 654 F.2d at 90 (finding that the United States took private land without violating the landowner’s airspace because its overflights were “peculiarly burdensome” to the landowner).

holding that where aircraft operations did not physically invade the landowner's estate, incidental smoke, vibrations and noise were not compensable takings


affirming that taking occurred even though some of the activities of which the plaintiff complained were near, but not over, the plaintiffs property


"Construing the acts of Congress in the light of the Fifth Amendment, they do not authorize the imposition of so direct and peculiar and substantial a burden upon plaintiffs property without compensation to him."


finding that the United States took private land without violating the landowner's airspace because its overflights were "peculiarly burdensome" to the landowner


Context: The court finds that interpreting N.J.S.A. 54:3-27 as advocated by Randolph, would ran contrary to the well established principle that local property taxes are liens against property, and not a personal obligation of the taxpayer. It would also appear to give municipalities a new judicially crafted means of collecting delinquencies outside of the avenues already authorized by the Legislature.

"These statutory methods of collection of delinquent taxes evidence the legislative determination that real estate taxes are liens or levies on land and are not the personal obligation of the owner of the land."

See Newark, supra, 150 N.J.Super. at 21, 374 A.2d 504 (“Since Newark has concededly not begun to avail itself of the statutory means to enforce collection, much less exhausted them, we are of the view that the trial judge erred in expanding the manner in which real estate taxes could be collected.”); see also Garden State Racing Ass’n, supra, 1 N.J.Tax at 574 (“These statutory methods of collection of delinquent taxes evidence the legislative determination that real estate taxes are liens or levies on land and are not the personal obligation of the owner of the land.”) (emphasis added).

"Since Newark has concededly not begun to avail itself of the statutory means to enforce collection, much less exhausted them, we are of the view that the trial judge erred in expanding the manner in which real estate taxes could be collected."


Context: Kedei filled out his asylum application himself, he checked that he is fluent in English and later testified in English, and the differences between his application and oral testimony go to the heart of his claim. Accordingly, we hold that the IJ's adverse credibility finding is supported by substantial evidence.

See Valderrama v. INS, 260 F.3d 1083, 1085 (9th Cir.2001) (per curiam) (holding that substantial evidence supported an adverse credibility finding where the petitioner’s two asylum applications differed significantly regarding past persecution); see also Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990) (holding that substantial evidence supported an adverse credibility finding where, inter alia, the petitioners claimed guerrilla persecution on their asylum applications but later claimed government persecution).

holding that substantial evidence supported an adverse credibility finding where the petitioner's two asylum applications differed significantly regarding past persecution


Context: P 12. Our past decisions do not distinguish voluntary conveyances of tenancy by entirety property from involuntary attachments.

"[H]usband and wife are seized, not merely of equal interests, but of the whole estate during their lives and the interest of neither of them can be sold, attached or liened except by the joint act of both husband and wife."

See, e.g., Corey v. McLean, 100 Vt. 90, 91, 135 A. 10, 11 (1926) (holding that marital property “was not attachable for the [sole] debts of the husband” because it was held in tenancy by entirety). Furthermore, despite RBS’s contention that numerous decisions from other jurisdictions support its proposition that tenancy by entirety property may be attached, most jurisdictions recognizing the estate do not allow a creditor of a single debtor to attach property held jointly by the debtor and the nondebtor in a tenancy by entirety. See Brown, supra, § 6:84 (“Most jurisdictions that recognize tenancies by the entirety hold that a creditor of one spouse cannot reach the debtor spouse’s share in the property.”); see also Steigler v. Ins. Co. of N. Am., 384 A.2d 398, 400 (Del. 1978) (“[H]usband and wife are seized, not merely of equal interests, but of the whole estate during their lives and the interest of neither of them can be sold, attached or liened except by the joint act of both husband and wife.”) (quotation omitted); Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 53 (Fla. 2001) (explaining elements of tenancy by entirety); Keen v. Keen, 60 A.2d 200, 204 (Md. 1948) (noting property held as tenancy by entirety could not be “levied upon or attached for the debts of either the husband or the wife.”).

holding that marital property "was not attachable for the [sole] debts of the husband" because it was held in tenancy by entirety


noting property held as tenancy by entirety could not be "levied upon or attached for the debts of either the husband or the wife."


Context: Healthy defense in the course of the liability phase." Pls.' Mot. at 7. As the preceding discussion indicates, there is strong legal support for this argument; a harmless-error contention has been deemed an affirmative defense to liability for damages.

"[T]he employer's burden is most appropriately deemed an affirmative defense: the plaintiff must persuade the fact finder on one point, and then the employer, if it wishes to prevail, must persuade it on another."

See, e.g., Sanders, 594 F.2d at 816 (“the ultimate burden should be on the party whose eiTor and obfuscation of the evidence caused the problem”); Engels, 678 F.2d at 175 (“the end-burden of persuasion falls to the government to show harmlessness”); cf. Price Waterhouse, 490 U.S. at 246, 109 S.Ct. 1775 (“[T]he employer’s burden is most appropriately deemed an affirmative defense: the plaintiff must persuade the fact finder on one point, and then the employer, if it wishes to prevail, must persuade it on another.”); Lesage, 528 U.S. at 20-21, 120 S.Ct. 467 (“even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration” (emphasis added)).

"the ultimate burden should be on the party whose eiTor and obfuscation of the evidence caused the problem"


"even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration" (emphasis added


"the end-burden of persuasion falls to the government to show harmlessness"


Context: A government need not produce all evidence necessary to ensure a conviction in order to obtain extradition. Thus, while Respondent identifies arguments that may help him at trial, he does not undermine the evidence establishing probable cause to believe that he is the person who killed the victim.

upholding district court's finding of probable cause even though there was no eyewitness identifying respondent as the shooter, but there was circumstantial evidence including that respondent had "quarreled with the victim and brandished a gun at him a few hours prior to the shooting" and that respondent was in Reynosa, Tamaulipas, Mexico the night of the murder

Salazar, 2010 WL 2925444, at *11 (stating that the Mexican government’s failure to interview potential witnesses or to provide the Court with all witness statements did not undermine the evidence establishing probable cause); see also Garza, 180 Fed.Appx. at 522 (upholding district court’s finding of probable cause even though there was no eyewitness identifying respondent as the shooter, but there was circumstantial evidence including that respondent had “quarreled with the victim and brandished a gun at him a few hours prior to the shooting” and that respondent was in Reynosa, Tamaulipas, Mexico the night of the murder).

stating that the Mexican government's failure to interview potential witnesses or to provide the Court with all witness statements did not undermine the evidence establishing probable cause


Context: The district court properly granted summary judgment on McAfee's Eighth Amendment claim because McAfee failed to raise a genuine dispute of material fact as to whether defendant Hill acted with deliberate indifference to McAfee's safety before the riot erupted in the dining hall, or as to whether Hill acted "maliciously and sadistically for the very purpose of causing harm" after he recognized that tensions were building and called for reinforcements.

inmate must establish that prison officials "possessed a sufficiently culpable state of mind" to implicate the Eighth Amendment

Johnson v. Lewis, 217 F.3d 726, 733-34 (9th Cir.2000) (the state-of-mind requirement for an Eighth Amendment claim “varies with the circumstances of the claim”); see also Wilson v. Seiter, 501 U.S. 294, 297-98, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (inmate must establish that prison officials “possessed a sufficiently culpable state of mind” to implicate the Eighth Amendment).

the state-of-mind requirement for an Eighth Amendment claim "varies with the circumstances of the claim"


Context: The sanction for making an intentional or knowing misrepresentation to a tribunal is a one-year suspension.

Contrast Matter of Ring, 427 Mass. 186, 191-192 (1998) (attorney emotionally traumatized by breakup of marriage suspended for three months for outrageous treatment of wife and contemptuous disregard of court orders entered in divorce action).

See Matter of McCarthy, 416 Mass. 423, 431-432 (1993) (attorney elicited false testimony and offered false documents in proceeding before rent control board); Matter of Neitlich, 413 Mass. 416, 421-423 (1992) (attorney perpetrated fraud on Probate and Family Court and opposing counsel by actively misrepresenting terms of client’s pending real estate transaction); Matter of Giuliotti, 10 Mass. Att’y Discipline Rep. 133, 136-139 (1994) (attorney signed expert’s name to affidavit and filed it with court offering opinion that expert had not rendered).


attorney perpetrated fraud on Probate and Family Court and opposing counsel by actively misrepresenting terms of client's pending real estate transaction


Context: Therefore, it was not timely and prison officials returned it as such. Id. at 10. Plaintiff does not allege that his injuries prevented him from timely filing a grievance, nor could he make such a claim as he did timely file Grievance No. 2008040298. Similarly, the fact that he did not know the individual defendants' names did not prevent him from filing the untimely grievance, and he was able to set forth his claims without that information.

See Johnson, 385 F.3d at 517 (defendants’ names unnecessary where grievance provides enough detail to place prison officials on notice as to the specific problem); see also Brown v. Sikes, 212 F.3d 1205, 1207-10 (11th Cir.2000) (defendants need not be named in administrative grievance provided inmate provides officials with all relevant available information).

defendants' names unnecessary where grievance provides enough detail to place prison officials on notice as to the specific problem


Context: Similarly, courts may be more willing to grant equitable tolling in death penalty cases, particularly when the petitioner has been diligent in pursuing his rights.

But see Johnson v. McBride, 381 F.3d 587, 590-91 (7th Cir.2004) (rejecting the view that a different test applies to capital cases); Rouse v. Lee, 339 F.3d 238, 253-56 (4th Cir.2003) (en bane) (same).

"[D]eath is a different kind of punishment from any other which may be imposed in this country."

See, e.g., Fahy v. Horn, 240 F.3d 239, 244-45 (3d Cir.2001); cf. Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (“[D]eath is a different kind of punishment from any other which may be imposed in this country.”); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long.”).


Context: In AHIF-Oregon's view, if classified information concerning national security demonstrates that an entity is supporting terrorism, OFAC either must decline to designate the entity or must reveal the classified information to the entity that OFAC believes supports terrorist activities. Common sense dictates that AHIF-Oregon is overreaching. Not surprisingly,, all federal courts to have considered this argument have rejected it.

holding that, in a designation of a "foreign terrorist organization" under the Antiterrorism and Effective Death Penalty Act of 1996 ("AED-PA"

Holy Land, 333 F.3d at 164; Global Relief Found., Inc. v. O’Neill, 315 F.3d 748, 754 (7th Cir.2002); KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner (KindHearts II), 710 F.Supp.2d 637, 660 (N.D.Ohio 2010); Al-Aqeel v. Paulson, 568 F.Supp.2d 64, 72 (D.D.C.2008); see also NCORI, 251 F.3d at 208 (holding that, in a designation of a “foreign terrorist organization” under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), the government’s use of classified information without permitting the organization to view the information did not violate the organization’s due process rights); People’s Mojahedin Org. of Iran v. Dep't of State, 327 F.3d 1238, 1241-43 (D.C.Cir.2003) (following NCORI and describing in detail its holding on this point); United States v. Ott, 827 F.2d 473, 477 (9th Cir.1987) (holding that, in a military criminal trial, the government’s use of classified information, without permitting the defendant or his lawyers to view the information, did not violate the defendant’s due process rights); cf. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir.2010) (en banc) (affirming the district court’s dismissal of an action because of the state secrets doctrine in a case involving classified information), cert. denied, - U.S. -, 131 S.Ct. 2442, 179 L.Ed.2d 1235 (2011); IARA-USA, 477 F.3d 728 (rejecting a challenge that the agency failed to comply with its regulation, 28 C.F.R. § 17.17(a)(1), which required the agency to determine which portions of the classified record “can be declassified”).

affirming the district court's dismissal of an action because of the state secrets doctrine in a case involving classified information


rejecting a challenge that the agency failed to comply with its regulation, 28 C.F.R. SS 17.17(a


following NCORI and describing in detail its holding on this point


holding that, in a military criminal trial, the government's use of classified information, without permitting the defendant or his lawyers to view the information, did not violate the defendant's due process rights


Context: The government charged, and the jury found, that defendants engaged in a single, continuing conspiracy to rig bids on certain cost-plus contracts between 1981 and 1984. It is well-established that, as a participant in this conspiracy, MIA is legally liable for all the acts of its co-conspirators in furtherance of this crime.

"[T]he conspiracy continues up to the time of abandonment or success."

See United States v. Kissel, 218 U.S. 601, 608, 31 S.Ct. 124, 126, 54 L.Ed. 1168 (1910) (“[T]he conspiracy continues up to the time of abandonment or success.”) (“A conspiracy is a partnership in criminal purposes ... [and] an overt act of one partner may be the act of all without any new agreement specifically directed to that act.”); see also Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 803, 56 L.Ed. 1114 (1912) (the liability of an individual conspirator continues until the conspiracy accomplishes its goals or that conspirator withdraws, the latter of which requires an affirmative action).


Context: Certainly, Gao never alleged that he told the immigration officer his girlfriend had a forced abortion. Because Gao's explanations for the discrepancy between his testimony and the airport interview would not compel a fact-finder to excuse the discrepancy, and because the discrepancy involved the sole basis for his asylum claim, it properly supported the IJ's adverse credibility findings.

See Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir.2003) (finding that to form the basis of an adverse credibility determination, a discrepancy must be “substantial” when measured against the record as a whole); see, e.g., Yun-Zui Guan v. Gonzales, 432 F.3d 391, 395-98 (2d Cir.2005) (determination supported by entirely different accounts of persecution provided by applicant at her airport interview and subsequent hearing); see also Ramsameachire, 357 F.3d at 179-80 (setting forth the criteria that the Court generally looks to when evaluating the reliability of statements made by applicants during airport interviews).

finding that to form the basis of an adverse credibility determination, a discrepancy must be "substantial" when measured against the record as a whole


determination supported by entirely different accounts of persecution provided by applicant at her airport interview and subsequent hearing


Context: Upon the filing of a voluntary petition, 11 U.S.C. SS 362 imposes an automatic stay against the continuation of actions against the debtor commenced before the commencement of the debtor's bankruptcy case. 11 U.S.C. SS 362(a)(1). With exceptions not applicable here, the automatic stay "prevents creditors from taking further action against ... [the debt- or] except through the bankruptcy court." Actions taken in violation of the automatic stay are void.

"Ordinarily, any action taken in violation of the stay is void and without effect, even where there is no actual notice of the existence of the stay."

See also In re Calder, 907 F.2d 953, 956 (10th Cir.1990) (“Ordinarily, any action taken in violation of the stay is void and without effect, even where there is no actual notice of the existence of the stay.”) (internal citations omitted).

"It is well established that any action taken in violation of the stay is void and without effect."

Ellis v. Consol. Diesel Elec. Corp., 894 F.2d 371, 372 (10th Cir.1990) (“It is well established that any action taken in violation of the stay is void and without effect.”) (citations omitted).


Context: "A district court's finding that a defendant does not qualify for a minor or minimal participant status is heavily dependant on the facts of the particular case, and we uphold such a finding unless it is clearly erroneous." Amuchastegui's role in the armed bank robbery, including giving his co-defendant the gun, driving the getaway car, and receiving a share of the loot, does not entitle him to either a minor or minimal role adjustment.

United States v. Hernandez-Franco, 189 F.3d 1151, 1160 (9th Cir.1999) (stating that the appellant has the burden to prove by the preponderance of the evidence that he is substantially less culpable than the average co-participant); see also United States v. Pinkney, 15 F.3d 825, 828, (9th Cir.1994) (stating that “one kind of average participant in a robbery would be the person who drove the robber to the scene and then drove him or her away again, and expected a share of the loot”).

stating that "one kind of average participant in a robbery would be the person who drove the robber to the scene and then drove him or her away again, and expected a share of the loot"