Context: We have held that "willful disobedience [of] a single court order may alone justify disbarment."

In re Daly, 291 Minn. 488, 495, 189 N.W.2d 176, 181 (1971) (disbarring an attorney for, among other things, continuing to file lawsuits after a federal court had issued an order prohibiting him from relitigating a particular issue and willfully defying an order from this court forbidding him from engaging in further proceedings in a case before a justice of the peace); see also In re Grzybek, 567 N.W.2d 259, 265 (Minn.1997) (stating that the attorney’s “behavior provided us with at least three separate grounds upon which he could be disbarred,” including “his repeated failure to comply with court orders” (emphasis added)); In re Joyce, 242 Minn. 427, 431, 65 N.W.2d 581, 583 (1954) (holding that an attorney was subject to disbarment based on his willful disobedience of a probate court order requiring him to return excess attorney fees paid to the executor of an estate). We also have considered an attorney’s failure to comply with a disciplinary order when ordering disbarment.

stating that the attorney's "behavior provided us with at least three separate grounds upon which he could be disbarred," including "his repeated failure to comply with court orders" (emphasis added


holding that an attorney was subject to disbarment based on his willful disobedience of a probate court order requiring him to return excess attorney fees paid to the executor of an estate


Context: The First Circuit recently held that "attendance is an essential function of any job."

See also Leary v. Dalton, 58 F.3d 748 (1st Cir.1995) (under Rehabilitation Act, employee with excessive absences related to claimed disability was not qualified individual).

Rios-Jimenez v. Principi, 520 F.3d 31, 42 (1st Cir.2008) (holding that employee who frequently missed work was not a qualified individual able to perform the essential functions of her job, either with or without a reasonable accommodation, as required to support disability discrimination and reasonable accommodation claims under the Rehabilitation Act).


Context: Similarly, several courts have upheld the admissibility of responses to routine questions asked during the booking and processing of arrestees and their belongings either before Miranda warnings had been given or after the suspect had requested a lawyer or indicated an intent to remain silent. The Second Circuit, nonetheless, ruled the response admissible, citing a draft of the ALI Model Code of Pre-Arraignment Procedure SS 140.8(5), supra note 2, and stating that in Miranda, "the Supreme Court was concerned with protecting the suspect against interrogation of an investigative nature rather than the obtaining of basic identifying data required for booking and arraignment [such as marital status]."

Id. at 1112-13. Accord, United States v. Prewitt, 553 F.2d 1082, 1085-86 (7th Cir.), cert. denied, 434 U.S. 840, 98 S.Ct. 135, 54 L.Ed.2d 104 (1977) (admission of an alias during booking is not within Miranda rule).

Cf. Cannistraci v. Smith, 470 F.Supp. 586, 589-91 (S.D.N.Y.1979) (similar dialogue in squad car held not to be proscribed interrogation).


Context: . Under these circumstances, we need not reach the question whether or when an entrapment defense may be consistent with an acceptance of responsibility adjustment.

"finding] that the district court correctly determined that the defendant does not qualify for a reduction for acceptance of responsibility" where he "attempted to place the blame for his selling drugs upon the government inducement"

See United States v. Emenogha, 1 F.3d 473, 482 (7th Cir.1993) ("As we have recently noted, '[w]here a defendant persists in asserting entrapment, she cannot also claim acceptance of responsibility.’ ") (quoting United States v. Simpson, 995 F.2d 109, 112 (7th Cir.1993)); United States v. Hansen, 964 F.2d 1017, 1021-22 (10th Cir.1992) ("finding] that the district court correctly determined that the defendant does not qualify for a reduction for acceptance of responsibility” where he "attempted to place the blame for his selling drugs upon the government inducement”), cert. denied, 510 U.S. 1080, 114 S.Ct 901, 127 L.Ed.2d 92 (1994); United States v. Demes, 941 F.2d 220, 222 (3d Cir.) ("While it is conceivable to hypothesize a case in which a plea of entrapment would not be inconsistent with the acceptance of responsibility, here we cannot hold that the court erred in not allowing the reduction because the claim of entrapment was made by a person who in no circumstances could have had a justification for possession of the cocaine.”), cert. denied, 502 U.S. 949, 112 S.Ct. 399, 116 L.Ed.2d 348 (1991); see also United States v. Davis, 36 F.3d 1424, 1435-36 (9th Cir.1994) ("not[ing] that the district court could not have found that [the defendant] had not accepted responsibility solely because he presented an entrapment defense at trial”), cert. denied, — U.S.-, 115 S.Ct. 1147, 130 L.Ed.2d 1106 (1995).

"not[ing] that the district court could not have found that [the defendant] had not accepted responsibility solely because he presented an entrapment defense at trial"


"While it is conceivable to hypothesize a case in which a plea of entrapment would not be inconsistent with the acceptance of responsibility, here we cannot hold that the court erred in not allowing the reduction because the claim of entrapment was made by a person who in no circumstances could have had a justification for possession of the cocaine."


Context: In carving out this exception for a prison cell, the Supreme Court balanced the individual's constitutional right to privacy with the legitimate interests of the prison, and found that the privacy right must always yield in this context. Of course, the existence of this exception does not abrogate the rule that an individual normally possesses an expectation of privacy while incarcerated; instead, this exception emphasizes the need to balance the competing interests of the individual and the government.

"[although the Supreme Court has thus foreclosed any fourth amendment challenge to the search of a prison cell ... the prisoner's privacy interest in the integrity of his own person is still preserved"

See Dunn v. White, 880 F.2d 1188, 1191 (10th Cir.1989) (“[although the Supreme Court has thus foreclosed any fourth amendment challenge to the search of a prison cell ... the prisoner’s privacy interest in the integrity of his own person is still preserved”); Cameron v. Hendricks, 942 F.Supp. 499, 502 (D.Kan.1996) (“though inmates have no legitimate expectation of privacy in their cells ... the traditional Fourth Amendment prohibition against unreasonable searches extends to personal body searches of inmates”); see also Lafayette, 462 U.S. at 644, 103 S.Ct. at 2608 (balancing an individual’s Fourth Amendment interests against the governmental interests supported by an inventory search).

balancing an individual's Fourth Amendment interests against the governmental interests supported by an inventory search


"though inmates have no legitimate expectation of privacy in their cells ... the traditional Fourth Amendment prohibition against unreasonable searches extends to personal body searches of inmates"


Context: Thus, the district court did not calculate drug quantity in order to apply a mandatory minimum, but only to calculate the Sentencing Guidelines that applied with no mandatory minimum. The latter calculation does not implicate Apprendi.

See United States v. McLeod, 251 F.3d 78, 82 (2d Cir.2001) (“Apprendi is inapplicable to Guidelines calculations that do not result in a sentence on a single count above the statutory maximum for that count.”); cf. Alleyne v. United States, 133 S.Ct. at 2155 (requiring any fact that increases statutory minimum to be submitted to jury). Accordingly, we identify no Apprendi error here, let alone plain error.

"Apprendi is inapplicable to Guidelines calculations that do not result in a sentence on a single count above the statutory maximum for that count."


Context: Finally, Defendant Hollan points to K.R.S. SS 61.035, which provides that: "Any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy." Although this statute is one of general application in that it does not specifically mention County Clerks or deputy county clerks, Kentucky courts have held that it can apply to deputy county clerks in the performance of some duties.

a deputy county clerk can participate in the public examination of absentee ballot applications by virtue of K.R.S. SS 61.035

See Halla-ban v. Cranfill, 383 S.W.2d 374, 376 (Ky. 1964) (a deputy county clerk can participate in the public examination of absentee ballot applications by virtue of K.R.S. § 61.035); see also Asher v. Sizemore, 261 S.W.2d 665, 666 (Ky.1953) (a deputy county clerk can administer an oath in his or her own name pursuant to K.R.S. § 61.035). This statute, however, is not a clear enough expression of the Kentucky General Assembly’s wish to convert the position of deputy county clerk into a political position covered by one of the McCloud categories.

a deputy county clerk can administer an oath in his or her own name pursuant to K.R.S. SS 61.035


Context: Second, the Vacating Order is void under Texas Law, and we have said that Rooker-Feldman does not preclude review of void state court judgments.

finding no federal jurisdiction to review state court judgment where the state court had subject matter over the underlying case, but noting that "[i]f the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate' and timely appellate proceeding"

Tex., 275 Fed.Appx. 327, 329 (5th Cir. 2008) (unpublished) (citing Shepherd for the proposition that, “[u]nder some circumstances, a federal court may review the state court record to determine if the judgment is void”); cf. Rooker, 263 U.S. at 415, 44 S.Ct. 149 (finding no federal jurisdiction to review state court judgment where the state court had subject matter over the underlying case, but noting that “[i]f the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate' and timely appellate proceeding”).

See United States v. Shepherd, 23 F.3d 923, 925 (5th Cir. 1994) (observing that the Rooker-Feldman doctrine would likely not bar federal court review of void state court judgments, although it would still preclude jurisdiction to review voidable state court judgments); see also Truong, 717 F.3d at 383 n.3 (citing Shepherd for the proposition that “Rooker-Feldman prohibits a district court from voiding state foreclosure judgments, notwithstanding claims that the judgments were fraudulently procured” (emphasis added)); Mosley v. Bowie Cty.


Context: Viewed in the light most favorable to the state, sufficient evidence existed to support denial of Harry's directed verdict motion.

in civil arson case, court affirmed denial of insured's directed verdict motion where insurer presented evidence fire at claimant's home was intentionally set and claimant was experiencing financial difficulty

See State v. Chisholm, 187 S.C. 275, 197 S.E. 308 (1938) (affirming arson conviction based on circumstantial evidence that included foreclosure proceedings shortly before fire, and changes in insurance coverage by defendant’s mother to include coverage for all personalty); cf. Carter v. American Mutual Fire Ins. Co., 297 S.C. 218, 375 S.E. (2d) 356 (Ct. App. 1988) (in civil arson case, court affirmed denial of insured’s directed verdict motion where insurer presented evidence fire at claimant’s home was intentionally set and claimant was experiencing financial difficulty).

affirming arson conviction based on circumstantial evidence that included foreclosure proceedings shortly before fire, and changes in insurance coverage by defendant's mother to include coverage for all personalty


Context: On the other hand, the Puerto Rico Supreme Court has shown evident reluctance to create duties disproportionate to the ability of business to protect against dangers of wrongdoing by third parties.

See J.A.D.M., 132 D.P.R. at 799, 1993 P.R.Eng. 840023 (noting that imposing liability too easily would mean that “every store or warehouse would have to be policed by the owner”); cf. Jacob, 640 F.Supp. at 119 (taxi operator is not liable for criminal attacks on passengers). Yet, despite these hesitations, the Puerto Rico courts have not suggested that small businesses are automatically exempt from providing reasonable protection against known dangers, whether by warnings, security features or otherwise.

noting that imposing liability too easily would mean that "every store or warehouse would have to be policed by the owner"


Context: South Carolina law recognizes, upon proper proof, an equitable lien on insurance proceeds in favor of a mortgagee. South Carolina law also provides that an equitable lien arises following the entry of a judgment recognizing its existence.

See Knapp v. Victory Corp., 279 S.C. 80, 302 S.E.2d 330 (1983) (holding, in a dispute between first and second mortgagee regarding entitlement to insurance proceeds, that because both mortgages required the mortgagor to maintain insurance on the property, both mortgagees had a claim to the proceeds and that the first mortgagee was entitled to recover a portion of the proceeds to the extent of the insured amount, with the second mortgagee to recover the remainder); Blackwell v. State Farm Mut. Auto. Ins. Co., 237 S.C. 649, 118 S.E.2d 701 (1961) (holding that a bank holding a chattel mortgage on an automobile damaged in a collision had an equitable lien in insurance proceeds because the mortgage required mortgagor to insure the vehicle and name mortgagee as a loss payee); Cromer v. Cromer, 293 S.C. 360, 360 S.E.2d 528 (App.1987) (holding, where two brothers were involved in a partnership operating a business in a barn and one brother purchased insurance on the barn, which later burned, that the partner who did not purchase insurance had an equitable lien because the insurance was taken out for the benefit of the partnership and therefore, the insurance company was jointly and severally liable to both brothers).

"An equitable lien is a mere floating equity until a judgment or decree subjecting the property to the payment of the debt or claim is rendered."

Lloyd, 458 B.R. at 300 (citing In re Houston, 409 B.R. 799, 811 (Bankr.D.S.C.2009)); First Fed. Sav. & Loan Ass’n v. Bailey, 316 S.C. 350, 450 S.E.2d 77, 81 (Ct.App.1994) (“An equitable lien is a mere floating equity until a judgment or decree subjecting the property to the payment of the debt or claim is rendered.”). The cases the Court has found which hold that a mortgagee has an equitable lien on insurance proceeds all involve a contract between the mortgagor and mortgagee requiring that the mortgagor maintain insurance.


holding that a bank holding a chattel mortgage on an automobile damaged in a collision had an equitable lien in insurance proceeds because the mortgage required mortgagor to insure the vehicle and name mortgagee as a loss payee


holding, where two brothers were involved in a partnership operating a business in a barn and one brother purchased insurance on the barn, which later burned, that the partner who did not purchase insurance had an equitable lien because the insurance was taken out for the benefit of the partnership and therefore, the insurance company was jointly and severally liable to both brothers


Context: . The time period does not begin to run until the client actually learns of his lawyer's default.

See Dixon, 649 S.W.2d at 438 (ruling that clients were damaged when their attorney informed them of his mistake, not necessarily when the mistake was actually made); Nuspl v. Missouri Medical Ins. Co., 842 S.W.2d 920, 922-3 (Mo.App.1992) (ruling that insured was damaged when insurance coverage was denied, not when the policy was delivered); see also O'Reilly v. Dock, 929 S.W.2d 297, 300 (Mo.App.1996) (distinguishing “layman/expert cases” where plaintiffs are unable to ascertain their injuries without the help of experts from “most cases" where plaintiffs can ascertain their own injuries).

distinguishing "layman/expert cases" where plaintiffs are unable to ascertain their injuries without the help of experts from "most cases" where plaintiffs can ascertain their own injuries


ruling that insured was damaged when insurance coverage was denied, not when the policy was delivered


Context: Indeed, had the Defendants miscalculated the duration of Ford's supervised release and requested arrest warrants be issued, but not arrested and detained Ford, Ford's Amended Complaint suggests that he would not have suffered any damage. For these reasons, Ford's damages arise out of his false arrest and/or false imprisonment, not the alleged negligent actions of the USPC and CSOSA Defendants.

See Kugel, 947 F.2d at 1507 (concluding that plaintiffs claims, though couched in terms of negligence, sounded in defamation and were therefore barred under FTCA); see also Snow-Erlin, 470 F.3d at 809 (holding that plaintiff could not sidestep the FTCA’s exclusion of false imprisonment claims by suing for the damage of false imprisonment under the label of negligence). Accordingly, the Court finds that Ford’s claims under the FTCA arise out of false arrest and false imprisonment.

holding that plaintiff could not sidestep the FTCA's exclusion of false imprisonment claims by suing for the damage of false imprisonment under the label of negligence


Context: None of this evidence rebuts the fact that since at least 1988, DAD's written policy has been that limited duty assignments are temporary. That the DAD may have been lax in enforcing this policy does not change that fact.

plaintiffs' 16-year light duty assignment did not convert temporary assignment into permanent one

See Champ, 884 F.Supp. at 999-1000 (plaintiffs’ 16-year light duty assignment did not convert temporary assignment into permanent one); see also Gaither v. Anne Arundel County, 94 Md.App. 569, 618 A.2d 244 (1993) (fact that county permitted employee to work light duty for 10 years did not create duty to continue practice).


Context: Where a plaintiff has been engaged in an activity of a civilian nature, the Feres bar has not been applied.

Feres held not to bar claim by officer who had been bartending at on-base officer's club because plaintiff stood "in exactly the same position as a civilian employee."

See, e.g., Johnson v. United States, 704 F.2d 1431, 1439 (9th Cir.1983) (Feres held not to bar claim by officer who had been bartending at on-base officer’s club because plaintiff stood “in exactly the same position as a civilian employee.”).

See also Parker v. United States, 611 F.2d 1007 (5th Cir.1980), reh. den., 615 F.2d 919 (5th Cir.1981) (recovery by serviceman allowed where plaintiff was on base for the purpose of moving from his on-base to his off-base home).


Context: The statute itself does not state what weight to afford prior Supreme Court interpretations of the federal law. However, a general rule of statutory interpretation is that, when Oregon adopts the statute of another jurisdiction, the legislature is presumed also to adopt prior constructions of the statute by the highest court of that jurisdiction.

prior constructions are deemed "highly persuasive" of legislative intent to adopt

Joseph v. Lowery, 261 Or 545, 550, 495 P2d 273 (1972) (prior constructions are deemed “highly persuasive” of legislative intent to adopt); Fleischhauer v. Bilstad, Gray, 233 Or 578, 585, 379 P2d 880 (1963) (prior constructions establish a “presumption” of legislative adoption).

restating the established rule that when the Oregon Supreme Court, as the highest court in the state, interprets a statute, that interpretation becomes "a part of the statute as if written into it at the time of its enactment"

Cf. State v. Clevenger, 297 Or 234, 244, 683 P2d 1360 (1984) (restating the established rule that when the Oregon Supreme Court, as the highest court in the state, interprets a statute, that interpretation becomes “a part of the statute as if written into it at the time of its enactment”).


Context: .Our disposition does not require that we decide whether the district court properly implied a Bivens-type action for damages directly from the fifth amendment's takings clause. Resolution of this question would involve an analysis whether (a) the Tucker Act is an equally effective remedy, and (b) Congress intended the Tucker Act to supplant other remedies.

also noting necessity for inquiry into "special factors counselling hesitation in the absence of affirmative action by Congress"

See Carlson v. Green, 446 U.S. 14, 18-23, 100 S.Ct. 1468, 1471-74, 64 L.Ed.2d 15 (1980) (also noting necessity for inquiry into “special factors counselling hesitation in the absence of affirmative action by Congress”) (citation omitted).

federal employment relationship "is a special consideration which counsels hesitation in inferring a Bivens remedy"

See also Bush v. Lucas, 647 F.2d 573, 576-77 (5th Cir.1981) (federal employment relationship “is a special consideration which counsels hesitation in inferring a Bivens remedy”), cert. granted, — U.S. —, 102 S.Ct. 3481, 73 L.Ed.2d 1365 (1982).


Context: In addition, even if Plaintiff is right that Amtrak is a private entity for purposes of PRIIA which it argues was intended "to boost the bottom-line of a for-profit corporation," Pl.'s Mot. at 28, that does not change its status for purposes of the Constitution.

concluding that Congress can determine Amtrak's status for the purpose of "matters that are within Congress's control," like other federal statutes, but not for matters outside its control, like the Constitution

See Lebron, 513 U.S. at 392, 115 S.Ct. 961 (concluding that Congress can determine Amtrak’s status for the purpose of “matters that are within Congress’s control,” like other federal statutes, but not for matters outside its control, like the Constitution); see also Totten, 380 F.3d at 492 (concluding Amtrak is the government for purposes of the False Claims Act because “False Claims Act coverage is ... a matter within Congress’s control”).

concluding Amtrak is the government for purposes of the False Claims Act because "False Claims Act coverage is ... a matter within Congress's control"


Context: Byrnes claims that Means harassed him because of his race and disability and Hat-tiesburg failed to adequately redress the harassment, which created a hostile work environment in violation of Title VII, SS 1981, the Rehabilitation Act, and the ADA To establish a hostile work environment claim, a plaintiff must prove (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was based on a protected characteristic; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. See Flowers v. S. Reg'l Physician Servs.

Inc., 247 F.3d 229, 234-36 (5th Cir. 2001) (extending Title VII hostile work environment jurisprudence - to disability-based harassment claims under the ADA); see also Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005) (noting that the discrimination analysis under both Title VII and § 1981 is the same); Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 506 n.8 (5th Cir. 2002) (noting that a hostile work environment claim under the Rehabilitation Act changes only the third prong by requiring that the harassment be “based solely on [plaintiffs] disability or disabilities” (quotation marks omitted)).

noting that the discrimination analysis under both Title VII and SS 1981 is the same


Context: However, there is no constitutional right to an attorney in state post-conviction proceedings. Attorney error which results in the fifing of an untimely petition is not a circumstance which justifies tolling the limitations period.

petitioner's inability to retain counsel in a timely fashion to file habeas petition did not warrant equitable tolling

See Elliott v. DeWitt, 10 Fed.Appx. 311, 312, 2001 WL 523527 (6th Cir.2001) (“attorney’s mistake which results in missing the fifing deadline imposed by the AEDPA is not a basis for equitable tolling”); accord Smaldone v. Senkowski 273 F.3d 133, 138 (2nd Cir.2001); Frye v. Hickman, 258 F.3d 1036, 1038 (9th Cir.2001); Fahy v. Horn, 240 F.3d 239, 244 (3rd Cir.2001); Marsh v. Soares, 223 F.3d 1217, 1220-21 (10th Cir.2000); Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000); see also Holloway v. Jones, 166 F.Supp.2d 1185, 1189 (E.D.Mich.2001) (petitioner’s inability to retain counsel in a timely fashion to file habeas petition did not warrant equitable tolling).

"attorney's mistake which results in missing the fifing deadline imposed by the AEDPA is not a basis for equitable tolling"


Context: Furthermore, Cannon's sentence was made conditional on his compliance with the circuit court's order. As we have already stated, looking at the evidence in the record and deferring to the circuit court on matters of credibility, we find Cannon either had the ability to pay the $373,000 to purge his confinement or was unable to pay this fee as a direct consequence of his own actions and behavior from the start of the proceedings.

See Miller, 375 S.C. at 454, 652 S.E.2d at 760 (stating contemnor must be without fault in his inability to comply with the court order); cf. Thornton, 328 S.C. at 104, 492 S.E.2d at 90-91 (stating the family court found husband had the ability to pay arrearages of $21,000 and was, therefore, in contempt for failure to pay, despite his claim that he lacked the means to pay because husband had received approximately $350,000 from a recent legal settlement, he had a “substantial” lifestyle, and he owned several properties, including a lien-free Georgetown office valued at $250,000 and a one-half interest in a Colorado vacation home valued at $600,000).

stating the family court found husband had the ability to pay arrearages of $21,000 and was, therefore, in contempt for failure to pay, despite his claim that he lacked the means to pay because husband had received approximately $350,000 from a recent legal settlement, he had a "substantial" lifestyle, and he owned several properties, including a lien-free Georgetown office valued at $250,000 and a one-half interest in a Colorado vacation home valued at $600,000


Context: After Pioneer, district courts analyzing a movant's claim of excusable neglect must "consider[ ] and balance[ ]" all of the Pioneer factors; "no one factor trumps the others." In addition, the party moving for the extension of time to file a notice of appeal has the burden of proving excusable neglect.

stating that "[t]he burden is on the moving party to allege facts establishing excusable neglect" under former Rule 8002(c)(2

See In re Douglas, 477 B.R. 274, 276 (D.D.C. 2012) (stating that “[t]he burden is on the moving party to allege facts establishing excusable neglect” under former Rule 8002(c)(2)); In re Spiegel, Inc., 385 B.R. 35, 39 (S.D.N.Y. 2008) (“[I]n bankruptcy cases, whether or not there is a claim that notice of the entry of judgment was not received, the party seeking the extension of time in which to file a notice of appeal has the burden of establishing excusable neglect.” (citation and internal quotation marks omitted)); see also Jones v. Chemetron Corp., 212 F.3d 199, 205 (3d Cir. 2000) (“The burden of proving excusable neglect lies with the late-claimant.”).

"The burden of proving excusable neglect lies with the late-claimant."


Context: The challenged testimony here concerns acts that are unrelated to, and which occurred eight or more years before, the conduct charged. We conclude that the district court abused its discretion in admitting the testimony, even with a limiting instruction.

noting that reversal is required only when "the questioned evidence has no bearing on any of the issues included"

See United States v. Harvey, 845 F.2d 760, 762 (8th Cir.1988) (finding that admission of testimony regarding uncharged drug and financial activities in tax prosecution ten years later constituted reversible error); see also Marshall, 683 F.2d at 1215 (noting that reversal is required only when “the questioned evidence has no bearing on any of the issues included”) (citations omitted).


Context: Therefore, whether an intervening act breaks the causal connection between negligence and injury is dependent upon whether the intervening cause was reasonably foreseeable to the one who was initially negligent. The "intervening cause must be disconnected from the negligence of the first person and must be of itself an efficient, independent, and self-producing cause of the injury."

Berdyck v. Shinde, 66 Ohio St.3d 573, 613 N.E.2d 1014, 1025 (1993); Thropp v. Bache Halsey Stuart Shields, Inc., 650 F.2d 817, 821 (6th Cir.1981) (noting, under Ohio law, that an intervening cause must produce the result without the cooperation of the original wrong).

observing that "the intervening cause doctrine is inapplicable where the alleged intervening, superseding cause is the plaintiffs own negligent conduct"

See also Potter v. Ford Motor Co., 213 S.W.3d 264, 274 (Tenn.Ct.App.2006) (observing that “the intervening cause doctrine is inapplicable where the alleged intervening, superseding cause is the plaintiffs own negligent conduct”).


Context: In making this determination, the First Circuit observed that the majority of courts considering similar post-petition claims have concluded that they are core.

See, e.g., In re Mansker, supra, (holding an action for post-petition breach of an agreement to purchase property to be a core proceeding); In re Clarke, supra, (holding an action to recover a post-petition account receivable to be core); In re Franklin Computer, Corp., supra, (holding an action to recover a post-petition account receivable to be core); In re All American of Ashburn, Inc., 49 B.R. 926 (Bankr.N.D.Ga.1985) (holding an action to recover a post-petition account receivable to be core); See also In re Epi-Scan, Inc., 71 B.R. 975 (Bankr.N.J.1987) (holding an action to recover a post-petition account receivable to be core). The court distinguished Mohawk Industries, supra, the case relied upon by the lower courts, because “that case does not in fact present a direct holding to the contrary, for it involved a pre-petition, not a post-petition debt; thus the Mohawk Industries claim did not arise out of the administration of the estate.”


Context: Under Nevada's proposed requirement, each time Congress decides to use federal property in a manner that incidentally burdens a State - for example by designating such property for use as a military installation, a prison, a dam, a storage or disposal site, or a conservation area - it must formulate neutral selection criteria and apply those criteria to every piece of federal property in the Nation before selecting a site. Courts presumably would be required to scrutinize the substantive basis of the legislation in question to ensure that the criteria were genuinely neutral and generally applied. This is far more intrusive than any requirement that there be a rational basis for Congress's judgment that a particular regulation respecting a particular property is "needful." The substantive constraint on legislation and the judicial role implicit in Nevada's "equal treatment" requirement are, in our view, totally at odds with the broad interpretation given to Congress's Property Clause powers.

See Biodiversity Assoc. v. Cables, 357 F.3d 1152, 1161-62 (10th Cir.2004) (rejecting a constitutional challenge to legislation prescribing in “minute detail” the management of a single national forest on the grounds that Congress, in exercising its Property Clause powers, “is permitted to be as specific as it deems appropriate” and that “[i]t would be difficult if not impossible to control the use of federal lands without reference to specific actions affecting specific tracts of land”); see also Nat’l Coalition to Save Our Mall v. Norton, 269 F.3d 1092, 1097 (D.C.Cir.2001) (finding no constitutional objection to the specificity of legislation requiring construction of a World War II Memorial on the National Mall).

rejecting a constitutional challenge to legislation prescribing in "minute detail" the management of a single national forest on the grounds that Congress, in exercising its Property Clause powers, "is permitted to be as specific as it deems appropriate" and that "[i]t would be difficult if not impossible to control the use of federal lands without reference to specific actions affecting specific tracts of land"


Context: It also suggests unequal treatment of plaintiff because of his race and, therefore, may constitute a violation of the Fourteenth Amendment guarantee of equal protection under the law.

refusal to allow visitors because of prisoner's race violates the equal protection clause of Fourteenth Amendment

See: Thomas v. Brierley, 481 F.2d 660 (3rd Cir.1973) (refusal to allow visitors because of prisoner’s race violates the equal protection clause of Fourteenth Amendment).

See also: Burton v. Livingston, 791 F.2d 97, 100 (8th Cir.1986) (prisoner retains right to be free from terror of instant and unexpected death at whim of allegedly bigoted custodians).


Context: The judge did not make any attempt to assess the defendant's complaints regarding appointed counsel, despite the defendant's multiple and specific allegations about counsel's actions. We have required, even where an attorney has an impeccable reputation, that specific inquiry be made into the nature of a defendant's precise complaint against counsel.

denial of defendant's motion for removal of counsel proper on day on which trial was scheduled to begin, where judge conducted detailed colloquy, and concluded that "these motions for a new attorney [were] no more than a delaying tactic"

See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985) (denial of defendant’s motion for removal of counsel proper on day on which trial was scheduled to begin, where judge conducted detailed colloquy, and concluded that “these motions for a new attorney [were] no more than a delaying tactic”).

"when a defendant alleges that counsel is unprepared, the judge should perform some colloquy to ascertain whether this is a dilatory tactic or whether counsel is truly unprepared"

See also Commonwealth v. Carsetti, 53 Mass. App. Ct. 558, 562 (2002) (“when a defendant alleges that counsel is unprepared, the judge should perform some colloquy to ascertain whether this is a dilatory tactic or whether counsel is truly unprepared”).


Context: But the Texas Supreme Court has never extended the duty to warn or make safe to defendants who did not own, occupy, or control the premises at the time of the plaintiffs injury.

See Allen Keller Co. v. Foreman, 343 S.W.3d 420, 426 (Tex.2011) (holding that engineering firm, whose work was dictated by and complied with contractual specifications, had no duty to warn of dangerous condition on premises); Mathis, 189 S.W.3d at 845 (holding that engineer did not owe duty to keep premises safe and did not owe any duty with respect to hole on premises engineer neither created nor agreed to make safe); see also Martinez, 941 S.W.2d at 911 (holding that defendant properly established that it did not owe premises liability duty because it did not own, occupy, or control premises where injury occurred but that defendant was not entitled to traditional summary judgment because it failed to address duty arising out of alleged creation of dangerous condition).


holding that engineer did not owe duty to keep premises safe and did not owe any duty with respect to hole on premises engineer neither created nor agreed to make safe


Context: Courts may dispense with the filing of a postal receipt if a substituted service statute is invoked on the ground that the defendant is evading service. Chapman, 750 So.2d at 143. This does not mean Warner need not bother with certified mail to Wise's address; rather, "[t]he failure to comply with the statutory requirements has been excused when the record shows that the party to be served is deliberately refusing to accept delivery."

Woodworth v. Smith, 773 So.2d 1170 (Fla. 2d DCA 2000) (reversing where the trial court denied the motion to quash service though defendant had actual notice based on regular mail); see also Jennings v. Montenegro, 792 So.2d 1258 (Fla. 4th DCA 2001) (stating that “the failure of delivery of service must be attributable to the defendant”); Wyatt, 649 So.2d at 907 (holding that the court cannot conclude that failure of service resulted from defendant’s rejection of delivery where letters sent to defendant were returned stating “UNCLAIMED” and “NOT AT THIS ADDRESS”).

stating that "the failure of delivery of service must be attributable to the defendant"


Context: The immigration judge (IJ) found that Iskandar was not eligible for asylum because his application was not filed within one year of his arrival in the United States. 8 U.S.C. SS 1158(a)(2)(B). The IJ further found that -- even crediting Iskandar's testimony -- the harm he feared was neither severe nor likely enough to satisfy the standards for withholding of removal and relief under the CAT.

See 8 U.S.C. § 1231(b)(8)(A) (withholding of removal); INS v. Stevie, 467 U.S. 407, 412, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) (withholding appropriate only when there is a “clear probability” that the alien’s life or freedom would be threatened upon removal); see also 8 C.F.R. §§ 208.16 and 208.18 (regulations governing CAT claims); Abdulrahman v. Ashcroft, 330 F.3d 587, 591 n. 2 (3d Cir.2003) (for CAT claim, alien must show it is more likely than not that she will be tortured by the government or with its acquiescence upon removal).

withholding appropriate only when there is a "clear probability" that the alien's life or freedom would be threatened upon removal


Context: (Id.). An age difference of less than ten years is not sufficient to support a showing of age discrimination.

Grosjean v. First Energy Corp., 349 F.3d 332, 338 (6th Cir.2003) (an age difference of less than ten years is not sufficient to support a prima facie inference of age discrimination); see also O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (the inference of discrimination necessary to sustain an ADEA case “cannot be drawn from the replacement of one worker with another worker insignificantly younger.”); Dunaway v. Int’l Bhd. of Teamsters, 310 F.3d 758, 763 (D.C.Cir.2002) (finding that in the absence of other evidence of age discrimination, plaintiff who had been replaced by a worker seven years younger had not made a prima facie showing of age discrimination); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir.2000) (in an ADEA action involving a reduction in force, plaintiff must show, among other things, that other similarly situated employees substantially younger than plaintiff were treated more favorably); Grossmann v. Dillard Dep’t Stores, Inc., 109 F.3d 457, 459 (8th Cir.1997) (finding that a jury could not reasonably infer age discrimination where an employer, who also was in the protected age group, hired plaintiff when he was forty-eight, fired him when he was fifty-two, and the following year hired four new employees over forty, two of them over fifty).

the inference of discrimination necessary to sustain an ADEA case "cannot be drawn from the replacement of one worker with another worker insignificantly younger."


finding that in the absence of other evidence of age discrimination, plaintiff who had been replaced by a worker seven years younger had not made a prima facie showing of age discrimination


in an ADEA action involving a reduction in force, plaintiff must show, among other things, that other similarly situated employees substantially younger than plaintiff were treated more favorably


finding that a jury could not reasonably infer age discrimination where an employer, who also was in the protected age group, hired plaintiff when he was forty-eight, fired him when he was fifty-two, and the following year hired four new employees over forty, two of them over fifty


Context: As the Sixth Circuit has noted, "From a litigant's perspective, it is a difficult, if not impossible endeavor, to estimate how long a reviewing court will take to decide a particular motion." Taylor made his inquiry to the Appellate Division slightly more than three months after the end of the limitations period.

See Miller, 305 F.3d at 496 (five and one-half month interval between limitations period and discovery of state court ruling does not show lack of diligence); Phillips, 216 F.3d at 511 (four month interval); cf. Drew v. Department of Corrections, 297 F.3d 1278, 1287-88 (11th Cir.2002) (letter of inquiry filed sixteen months after filing of state court application does not satisfy diligence).


Context: April 10, 1996), the court held that without clear direction from the Third. Circuit, the Albright decision provided insufficient guidance for the court to conclude that a SS 1983 malicious prosecution claim no longer existed.

But see Pansy v. Preate, 870 F.Supp. 612, 622 (M.D.Pa.1994) (granting summary judgment on malicious prosecution claim on Albright grounds and because of existence of probable cause), aff'd, 61 F.3d 896 (3d Cir.1995); Patterson v. Board of Probation and Parole, 851 F.Supp. 194, 201 (E.D.Pa.1994) (holding that no § 1983 malicious prosecution claims exist after Albright); Smith v. Holtz, 856 F.Supp. 227, 236 (M.D.Pa.1994) (stating that existence of § 1983 malicious prosecution claim was unresolved issue), aff'd, 87 F.3d 108 (3d Cir.), cert. denied, — U.S. —, 117 S.Ct. 611, 136 L.Ed.2d 536 (1996).

See also Haddock v. Christos, 866 F.Supp. 170, 173 n. 9 (M.D.Pa.1994) (presuming that elements identified by Third Circuit in Lee for malicious prosecution claim survived Albright); Ferraira v. Mobil Oil Carp., 1994 WL 470280 at *3-4 (E.D.Pa.


holding that no SS 1983 malicious prosecution claims exist after Albright


stating that existence of SS 1983 malicious prosecution claim was unresolved issue


Context: The zone of interests requirement thus was either inapposite or satisfied. See infra note 14. Nor was there any independent need for the brokers to establish third party standing since the legal right they asserted -- the right not to be injured by unauthorized agency action -- was their own.

See Air Reduction Co. v. Hickel, 420 F.2d 592 (D.C.Cir.1969) (holding that helium producers had standing to enjoin the Secretary of the Interior from enforcing regulation requiring government contractors to purchase their helium needs from the Secretary — a regulation claimed, and held, to be in excess of statutory authority); cf. Schnapper v. Foley, 667 F.2d 102 (D.C.Cir.1981) (litigant held not to have third party standing permitted to challenge as ultra vires copyright of government-commissioned television series).

holding that helium producers had standing to enjoin the Secretary of the Interior from enforcing regulation requiring government contractors to purchase their helium needs from the Secretary -- a regulation claimed, and held, to be in excess of statutory authority


Context: Although Juror 36 was candid about her personal concerns, we conclude that she unequivocally and repeatedly indicated that she would endeavor to be a fair and impartial juror. Her responses are distinguishable from those cases in which this Court has found error in the denial of cause challenges to jurors who repeatedly expressed a lack of impartiality or inability to follow the law.

holding that jurors who expressed residual doubt about the defendant's right to silence should have been dismissed for cause

See Matarranz, 133 So.3d at 477-81, 485-88 (juror repeatedly indicated that she harbored a bias against criminal defendants because she,had previously been the victim of a burglary); Kop-sho, 959 So.2d at 170-72 (juror believed that defendant should testify on his own behalf and expressed disagreement with the right to silence); Overton v. State, 801 So.2d 877, 890-93 (Fla. 2001) (finding error in denying cause challenge to one juror who emphatically believed that the defendant’s failure to testify indicated guilt); see also Welch v. State, 189 So.3d 296, 301 (Fla. 2d DCA 2016) (holding that jurors who expressed residual doubt about the defendant’s right to silence should have been dismissed for cause).


finding error in denying cause challenge to one juror who emphatically believed that the defendant's failure to testify indicated guilt


Context: The majority also cites cases from other jurisdictions concerning air guns, but these do little to support the conclusion that it is common knowledge that air guns are designed for violence to humans. In cases cited by the majority wherein the definition of deadly weapon applied by the courts actually did include a requirement that the item was designed, made or adapted to cause death or serious injury and the factor was determinative, those cases are not persuasive in that one court never discussed the application of this standard, and the others provided only a cursory analysis of the issue.

unclear whether air gun was found to be deadly weapon or dangerous instrument when conviction was affirmed after court assessed likelihood of injury from reasonable victim's point of view and air gun used to threaten

See McCaskill v. State, 648 So. 2d 1175, 1178 (Ala. Crim. App. 1994) (concluding that BB gun could be deadly weapon, defined by statute, to include anything “ ‘manifestly designed, made or adapted for the purposes of inflicting death or serious physical injury,’ ” because it can cause serious injury to eye); State v. Cordova, 198 Ariz. 242, 243, 8 P.3d 1156 (App. 1999) (because pellet gun uses carbon dioxide cartridges to propel pellets and jury had opportunity to view pellet gun during its deliberations, evidence sufficient to establish air gun was deadly weapon when “deadly weapon” defined to include anything designed for lethal use, including “firearm,” which was defined by Arizona Revised Statutes § 13-105 [17] as “any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon which will or is designed to or may readily be converted to expel a projectile by the action of expanding gases”); Campbell v. State, 577 S.W.2d 493, 495-96 (Tex. Crim. App. 1979) (because air gun designed to fire .22 caliber projectile was capable of causing death of human being if fired at close range and gun was pointed at close range during robbery, it was found to be deadly weapon capable of causing serious injury and designed for that purpose); see also Mitchell v. State, 698 So. 2d 555, 560-62 (Fla. App. 1997) (unclear whether air gun was found to be deadly weapon or dangerous instrument when conviction was affirmed after court assessed likelihood of injury from reasonable victim’s point of view and air gun used to threaten).

concluding that BB gun could be deadly weapon, defined by statute, to include anything " 'manifestly designed, made or adapted for the purposes of inflicting death or serious physical injury,' " because it can cause serious injury to eye


because pellet gun uses carbon dioxide cartridges to propel pellets and jury had opportunity to view pellet gun during its deliberations, evidence sufficient to establish air gun was deadly weapon when "deadly weapon" defined to include anything designed for lethal use, including "firearm," which was defined by Arizona Revised Statutes SS 13-105 [17] as "any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon which will or is designed to or may readily be converted to expel a projectile by the action of expanding gases"


because air gun designed to fire .22 caliber projectile was capable of causing death of human being if fired at close range and gun was pointed at close range during robbery, it was found to be deadly weapon capable of causing serious injury and designed for that purpose


Context: . After Buckley, the court has considered various mitigating factors in determining an appropriate sanction where an attorney has improperly dealt with client funds.

See In re Schneider, 553 A.2d 206, 211-12 (D.C.1989) (alteration of credit card receipts submitted to law firm for reimbursement in violation of DR 1-102(A)(4), 30-day suspension).

See also In re Hessler, 549 A.2d 700, 716 (D.C.1988) (commingling and misappropriation through simple negligence in violation of DR 9-103(A), six-month suspension).


Context: Accordingly, for the reasons discussed, the Court GRANTS Plaintiffs motion and remands Mr. Hegarty's claim to the administrator for further proceedings. See Pannebecker v. Liberty Life Assur.

Co. of Boston, 542 F.3d 1213, 1221 (9th Cir.2008) (explaining that “[wjhere an administrator’s initial denial of benefits is premised on a failure to apply plan provisions properly, we remand to the administrator to apply the terms correctly in the first instance”); see also Chronister v. Baptist Health, 442 F.3d 648, 650 (8th Cir.2006) (approving remand where initial denial was an abuse of discretion).

explaining that "[wjhere an administrator's initial denial of benefits is premised on a failure to apply plan provisions properly, we remand to the administrator to apply the terms correctly in the first instance"


Context: The homeowners contend that the above homestead exemption protects them from a forced sale of their homestead, and therefore, the trial court properly granted their motion for summary judgment as to FM's claim for specific performance. The homeowners are, however, incorrect, and the trial court's order constitutes a clear departure from the essential requirements of law, resulting in material injury that cannot be remedied on direct appeal.

See Rodriguez v. Miami-Dade Cnty., 117 So.3d 400, 406 (Fla.2013) (providing, that a jurisdictional requirement of certiorari review is that the order to be reviewed must give rise to material injury that cannot be remedied on plenary appeal); Sorena v. Gerald J. Tobin, P.A., 47 So.3d 875, 877 (Fla. 3d DCA 2010); see also Bermont Lakes, LLC v. Rooney, 980 So.2d 580, 586 (Fla. 2d DCA 2008) (concluding that a partial summary judgment eliminating a plaintiffs claim for specific performance of a land sale contract permits the. landowner to freely dispose of the land prior to appellate review, thereby potentially leaving the plaintiff with no adequate remedy on appeal because, due to the uniqueness of all land, monetary damages are an inadequate remedy).


Context: "[I]n Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth."

"[t]he assessment of credibility is for the trier of fact" and an "opinion that a person is not deceptive, could not lie without being tripped up, and would not betray a friend" is tantamount to an opinion on credibility and inadmissible

State v. Middleton, 294 Or 427, 438, 657 P2d 1215 (1983); see State v. Milbradt, 305 Or 621, 629-30, 756 P2d 620 (1988) (“[t]he assessment of credibility is for the trier of fact” and an “opinion that a person is not deceptive, could not lie without being tripped up, and would not betray a friend” is tantamount to an opinion on credibility and inadmissible); see also State v. Keller, 315 Or 273, 285, 844 P2d 195 (1993) (“[A] witness may not testify about the credibility of another witness.”).

"[A] witness may not testify about the credibility of another witness."


Context: Moreover, because the district court did not calculate the applicable Guidelines range, it could not adequately explain "the extent of [any] deviation" from that range.

finding it "uncontroversial that a major departure [from the Guidelines range] should be supported by a more significant justification than a minor one"

Gall, 552 U.S. at 50, 128 S.Ct. 586 (finding it “uncontroversial that a major departure [from the Guidelines range] should be supported by a more significant justification than a minor one”); see also United States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir.2011) (“The extent [of a variance] necessarily is different when the range is different, so a one-size-fits-all explanation ordinarily does not suffice.”).

"The extent [of a variance] necessarily is different when the range is different, so a one-size-fits-all explanation ordinarily does not suffice."


Context: In this circuit, however, there is a definite standard regarding the forced, warrantless removal of a person from his own home for "community caretaking" reasons.

routine community caretaking functions of police include "responding to calls to assist persons in need of immediate aid"

See also United States v. Nord, 586 F.2d 1288, 1290 (8th Cir.1978) (routine community caretaking functions of police include “responding to calls to assist persons in need of immediate aid”).

See Collins v. Bellinghausen, 153 F.3d 591, 596 (8th Cir.1998) (holding that police officers acting at the request of a social worker were entitled to qualified immunity when they removed a frail, elderly woman from her home because they had sufficient information to lead them to reasonably believe that the woman was in need of immediate aid).


Context: Furthermore, as the trial court observed in its memorandum of decision, the Wilsons and the Keatings, who reside at 8 and 12 Runkenhage Road, respectively, "have deeded access [rights] over the right-of-way" for purposes of ingress to and egress from their landlocked properties. In light of this fact, the court reasonably could have concluded that the Herbericks were not troubled by the plaintiffs use of the right-of-way for the same purposes or, if they were, that they had decided to acquiesce to such use in the interest of neighborhood harmony.

See, e.g., Phillips v. Bonadies, supra, 105 Conn. 726 (passive acquiescence should not be confused with permission for purposes of determining existence of prescriptive easement); see also Gallow-Mure v. Tomchik, supra, 78 Conn. App. 708-709 (evidence supported finding that owner had passively acquiesced in plaintiffs use of property and therefore that use was adverse); 25 Am. Jur. 2d 547, Easements and Licenses § 54 (2004) (“[t]he foundation of a right by prescription is acquiescence of the owner of the servient tenement in the acts relied on to establish the easement by prescription”). In any event, in view of the trial court’s extensive factual findings, all of which are amply supported by the record, the defendant cannot prevail on her claim that the evidence was insufficient to support that court’s determination that the plaintiff had obtained a prescriptive easement over the right-of-way for the purposes of ingress to and egress from her home.*


Context: Other courts have not limited reimbursement to the court-appointed counsel CJA rates.

ordering reimbursement for "the time expended in this case at a reasonable hourly rate (not limited to $90 per hour)"

See, e.g., United States v. Anderson, 400 F.Supp.2d 32, 37 (D.D.C. 2005) (ordering reimbursement for “the time expended in this case at a reasonable hourly rate (not limited to $90 per hour)”); United States v. Nunez-Garcia, 879 F.Supp. 63, 67 (W.D.Tex.1995) (finding the court “is not limited by the hourly rates stated in § 3006A(d)(l)”); Coniam, 574 F.Supp. at 618 (“There is no explicit limit on the amount of such funds to the panel attorney rates.... ”); cf. Lefkowitz, 125 F.3d at 621 (ordering defendant to reimburse $316,693.70, greatly exceeding the maximum under 18 U.S.C. § 3006A(d)(2)).

ordering defendant to reimburse $316,693.70, greatly exceeding the maximum under 18 U.S.C. SS 3006A(d


finding the court "is not limited by the hourly rates stated in SS 3006A(d


"There is no explicit limit on the amount of such funds to the panel attorney rates.... "


Context: There is always the possibility that settlement or some external event will render a case moot, but that hardly renders the litigation nonjusticiable before that event occurs. If the government's view were correct, then no agency action could ever be reviewed so long as Congress might intervene by passing new legislation that might overrule the final agency determination.

holding case ripe for review even though provision at issue would not take effect until three and a half years after the Court's decision during which time Congress could have repealed the provision

See New York v. United States, 505 U.S. 144, 175, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (holding case ripe for review even though provision at issue would not take effect until three and a half years after the Court’s decision during which time Congress could have repealed the provision); see also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (holding that even when the event that would cause the damage had not yet occurred, the claims in the case were still ripe for review); Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (holding where no further factual development is necessary to further illuminate the legal issues presented ripeness concerns are not implicated).


holding where no further factual development is necessary to further illuminate the legal issues presented ripeness concerns are not implicated


Context: A confirmed plan "has no preclusive effect on issues that must be brought by an adversary proceeding, or were not sufficiently evidenced in a plan to provide adequate notice to the creditor." Id These limitations on the application of res judicata "are particularly apropos when secured claims are involved" because "liens ordinarily pass through bankruptcy unaffected, regardless whether the creditor holding the lien ignores the bankruptcy case, or files an unsecured claim when it meant to file a secured claim, or files an untimely claim after the bar date has passed."

In re Brawders, 503 F.3d at 867, citing, Bisch v. United States (In re Bisch), 159 B.R. 546, 550 (9th Cir. BAP 1993) (federal tax lien on real property remained valid even though the IRS had filed an unsecured proof of claim in the debtors’ chapter 13 case); see also, In re Warner, 146 B.R. 253 (N.D. Cal. 1992) (in general, liens, including federal tax liens, pass through bankruptcy unaffected).

federal tax lien on real property remained valid even though the IRS had filed an unsecured proof of claim in the debtors' chapter 13 case


Context: Reilly is the Administrator of the EPA, working out of Washington, D.C. As Administrator, Reilly supervises the activities of each of the EPA regional offices, including that of Region V located in Chicago, Illinois. By reason of his ultimate authority over the actions taken out of Region V, Reilly should have reasonably foreseen being subjected to the jurisdiction of an Illinois court.

For purposes of laying venue, government defendants not personally present in Delaware are nonetheless "found" in Delaware "by reason of their ultimate responsibility for the services rendered there."

See Green v. Carlson, 581 F.2d 669, 676 (7th Cir.1978) (In an action for inappropriate medical care, the court possessed personal jurisdiction over the Director of the Federal Bureau of Prisons and the Assistant Surgeon General of the United States because the former bore responsibility for the management of the federal prison system and the later was re sponsible for monitoring the medical services within the prison.), aff'd, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); cf. The Superior Oil Co. v. Andrus, 656 F.2d 33, 41 (3d Cir.1981) (For purposes of laying venue, government defendants not personally present in Delaware are nonetheless “found” in Delaware “by reason of their ultimate responsibility for the services rendered there.”).


Context: We are not persuaded, however, that the trial court was restricted from decreasing maintenance from that originally awarded after consideration of the parties' current circumstances.

See In re Marriage of Jones, 627 P.2d 248 (Colo.1981)(the propriety of an award of maintenance depends upon the inadequacy of the property and earning capacity possessed by the party seeking the award); cf. In re Marriage of Foss, 30 P.3d 860 (Colo.App.2001)(where a new child support order is to be made, both parties must be allowed to show their current circumstances).


Context: However, an express agreement is not required. An implied agreement may support a common law marriage where one party intends present marriage and the conduct of the other party reflects the- same intent.

See State v. Grimes, 215 Iowa 1287, 1289-90, 247 N.W. 664, 665 (1933) (agreement to live as husband and wife until lawfully married does not establish present intent to enter into marriage relationship).

Id.; Gammelgaard v. Gammelgaard, 247 Iowa 979, 980, 77 N.W.2d 479, 480 (1956) (cohabitation, as well as conduct and general community reputation, can be used to strengthen proof of present intent and agreement to be married), The present-intent-to-be-married requirement precludes a common law marriage based on an intent to be married at some future time.


Context: . Plaintiff intertwines her discussion of issue preclusion and claim preclusion. It is clear that Defendant's Motion is based upon claim preclusion.

"The doctrine of res judicata embraces the concepts of claim preclusion and issue preclusion."

See Weishaar v. Snap-On Tools Corp., 582 N.W.2d 177, 180 (Iowa 1998) (explaining that claim preclusion means that "further litigation on the claim is prohibited” and issue preclusion means that “further litigation on a specific issue is barred”); see also Colvin v. Story County Bd. of Review, 653 N.W.2d 345, 348 (Iowa 2002) ("The doctrine of res judicata embraces the concepts of claim preclusion and issue preclusion.”).

explaining that claim preclusion means that "further litigation on the claim is prohibited" and issue preclusion means that "further litigation on a specific issue is barred"


Context: Like the Sixth, Seventh, and Tenth Circuits, however, I find the Ninth Circuit's reasoning in Calderon unpersuasive. As these courts of appeals explained, Hohn is undoubtedly distinguishable on the ground that it was limited to the question of whether an application for a certificate of appealability constitutes an appealable ease, a question entirely different from when a case is deemed "filed" under AED-PA.

the Ninth Circuit's rebanee on Hohn in deciding whether a motion for appointment of counsel is a "case pending" under AEDPA is "inapt"

See also Gosier, 175 F.3d at 506 (the Ninth Circuit’s rebanee on Hohn in deciding whether a motion for appointment of counsel is a “case pending” under AEDPA is “inapt”).

Hohn is "limited to the determination that the rejection by the district court of the preliminary motion constitutes an appealable case"

See Moore, 195 F.3d at 1163 (Hohn is “limited to the determination that the rejection by the district court of the preliminary motion constitutes an appealable case”); Williams v. Coyle, 167 F.3d at 1040 (“Hohn and Ex Parte Quirin stand only for the proposition that the denial by the district court of a motion for the issuance of a COA ... or ... a motion for the appointment of counsel ... would constitute an appealable case”).


"Hohn and Ex Parte Quirin stand only for the proposition that the denial by the district court of a motion for the issuance of a COA ... or ... a motion for the appointment of counsel ... would constitute an appealable case"


Context: While plaintiff states that "[t]he notice of termination dated January 18, 2006, was in violation of public policy," she has not pled a cause of action for wrongful termination in violation of public policy. Am. Compl. at P 36. Even assuming that she had, this claim would fail as plaintiff did not identify a particular Virginia statute which Voorthuis Opticians violated.

"Unlike the plaintiffs in Bowman and Lockhart, [the plaintiff] does not have a cause of action for wrongful discharge because he is unable to identify any Virginia statute establishing a public policy that [the employer] violated."

See Chrysler Corp. v. Brooks, 251 Va. 94, 465 S.E.2d 806, 809 (1996) (“Unlike the plaintiffs in Bowman and Lockhart, [the plaintiff] does not have a cause of action for wrongful discharge because he is unable to identify any Virginia statute establishing a public policy that [the employer] violated.”); see also Leverton v. AlliedSignal, Inc., 991 F.Supp. 486, 490 (E.D.Va.1998) ("a claim for wrongful discharge under Bowman cannot succeed unless the plaintiff identifies a Virginia statute establishing a public policy which was violated by the defendant in terminating the plaintiff”).

"a claim for wrongful discharge under Bowman cannot succeed unless the plaintiff identifies a Virginia statute establishing a public policy which was violated by the defendant in terminating the plaintiff"


Context: We have difficulty accepting that proposition because Congress, in replacing SS 10927(a)(3) with SS 13906(a)(3), was not faced with a binding construction by a court or agency finding that SS 10927(a)(3) required, any motor carriers to have cargo liability insurance. Such an authoritative interpretation by a court or' agency has been required in cases in which these rules of statutory construction relied on by the district court have been used.

holding when Congress re-enacted the Voting Rights Act, it necessarily adopted Justice Department's longstanding interpretation of Act's requirements

See Lorillard, 434 U.S. at 580-81, 98 S.Ct. 866 (holding that Congress’ incorporation of jury provisions of the Fair Labor Standards Act into the Age Discrimination in Employment Act necessarily ratified and adopted longstanding judicial construction of those provisions); see also United States v. Bd. of Comm’rs, 435 U.S. 110, 131, 134-35, 98 S.Ct. 965, 55 L.Ed.2d 148 (1978) (holding when Congress re-enacted the Voting Rights Act, it necessarily adopted Justice Department’s longstanding interpretation of Act’s requirements); Shapiro v. United States, 335 U.S. 1, 16, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948) (holding that when Congress included provisions of Compulsory Testimony Act of 1893 in the Emergency Price Control Act of 1942, it necessarily adopted “settled judicial construction” of the 1893 Act).

holding that Congress' incorporation of jury provisions of the Fair Labor Standards Act into the Age Discrimination in Employment Act necessarily ratified and adopted longstanding judicial construction of those provisions


holding that when Congress included provisions of Compulsory Testimony Act of 1893 in the Emergency Price Control Act of 1942, it necessarily adopted "settled judicial construction" of the 1893 Act


Context: . Montoya-Ortiz does not contend that the weapon was unconstitutionally seized for the sole purpose of enhancing his sentence.

"Absent a showing that officers obtained evidence expressly to enhance a sentence, a district judge may not refuse to consider relevant evidence at sentencing, even if that evidence has been seized in violation of the Fourth Amendment"

See also United States v. Tejada, 956 F.2d 1256, 1263 (2d Cir.) ("Absent a showing that officers obtained evidence expressly to enhance a sentence, a district judge may not refuse to consider relevant evidence at sentencing, even if that evidence has been seized in violation of the Fourth Amendment”), cert. denied, - U.S. -, 113 S.Ct. 124, 121 L.Ed.2d 80 (1992); United States v. Lynch, 934 F.2d 1226, 1237 (11th Cir.1991) (declining to extend exclusionary rule to sentencing proceedings), cert. denied, - U.S. -, 112 S.Ct. 885, 116 L.Ed.2d 788 (1992); United States v. McCrory, 930 F.2d 63, 68 (D.C.Cir.1991) (under particular facts of case, deterrent effect of exclusionary rule would not outweigh detrimental effect of excluding the evidence at sentencing), cert. denied, - U.S. -, 112 S.Ct. 885, 116 L.Ed.2d 788 (1992).

"exclusionary rule bars a sentencing court's reliance on evidence illegally seized during the investigation or arrest of a defendant for the crime of conviction in determining the defendant's sentence under the sentencing guidelines"

Contra, United States v. Nichols, 979 F.2d 402, 410-11 (6th Cir.1992) ("exclusionary rule bars a sentencing court’s reliance on evidence illegally seized during the investigation or arrest of a defendant for the crime of conviction in determining the defendant’s sentence under the sentencing guidelines”).


Cf. United States v. Montez, 952 F.2d 854, 856 (5th Cir.1992) (exclusionary rule does not apply in supervised release revocation hearings absent a showing of harassment).


under particular facts of case, deterrent effect of exclusionary rule would not outweigh detrimental effect of excluding the evidence at sentencing


Context: Under this Court's decisions, qualifications evidence may suffice, at least in some circumstances, to show pretext.

"[A] plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated"

See Patterson v. McLean Credit Union, 491 U.S. 164, 187-188, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (indicating a plaintiff “might seek to demonstrate that respondent’s claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position”), superseded on other grounds by 42 U.S.C. § 1981(b); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (“The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer’s reasons are pretexts for discrimination”); cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“[A] plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated”).

indicating a plaintiff "might seek to demonstrate that respondent's claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position"


"The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination"


Context: The "contract with voters" cases cited by Scarbrough similarly fail to accord her standing. Each of these cases acknowledged the standing of property-tax payers obligated to pay through their taxes for bonds issued for public construction projects pursuant to voter approval in a bond election.

treating pre-election orders as contract between commissioners' court and "electorate entitled to vote at said election" and overturning dismissal of voter and property-tax payer suit alleging diversion of proceeds from sale of bonds issued for use on certain public road

See Fletcher, 39 S.W.2d at 82-33 (treating pre-election orders as contract between commissioners’ court and “electorate entitled to vote at said election” and overturning dismissal of voter and property-tax payer suit alleging diversion of proceeds from sale of bonds issued for use on certain public road); Black, 246 S.W. at 80 (holding that county commissioners’ court that had adopted order designating roads to be improved if bond issue carried could not designate other roads to be improved with proceeds of bonds after election contrary to “the will of those having to bear the bond burden”); Moore, 200 S.W. at 374-75 (in action by property owners subject to tax for bond issued pursuant to county bond election, affirming injunction against diversion of proceeds of bond sales to construction of bridge at different location than presented in petition for bond election); see also Taxpayers for Sensible Priorities, 79 S.W.3d at 675-76 (holding, following sale of general obligation bonds approved by city voters to develop waterway project and initiation of work on project, “It is elementary that the proceeds of bonds voted by the people must be expended for the purposes for which they were voted.”).

holding, following sale of general obligation bonds approved by city voters to develop waterway project and initiation of work on project, "It is elementary that the proceeds of bonds voted by the people must be expended for the purposes for which they were voted."


holding that county commissioners' court that had adopted order designating roads to be improved if bond issue carried could not designate other roads to be improved with proceeds of bonds after election contrary to "the will of those having to bear the bond burden"


in action by property owners subject to tax for bond issued pursuant to county bond election, affirming injunction against diversion of proceeds of bond sales to construction of bridge at different location than presented in petition for bond election


Context: . Courts have disagreed, however, on the status of inmates working outside the penitentiary for a private employer as part of a work-release program.

See, e.g., Watson v. Graves, 909 F.2d 1549 (5 th Cir. 1990) (prisoners are employees of private work-release employers under the Fair Labor Standards Act); National Welders Supply Co., Inc., 145 N.L.R.B. 948 (1964) (board does not regard prisoners as employees under work-release employers); but see Speedrack Products Group, Ltd. v. N.L.R.B., 114 F.3d 1276, 1282 (D.C.Cir.1997) (board’s determination that completely integrated work-release inmates who share the same wages, benefits, and other conditions of employment are not eligible to vote in represented election was unreasonable); see also Equal Employment Opportunity Commission Opinion No. 86-7, 40 F.E.P. 1892 (April 18, 1986) (prison laborer is not an employee of prison under Title VII); c.f.

board's determination that completely integrated work-release inmates who share the same wages, benefits, and other conditions of employment are not eligible to vote in represented election was unreasonable


board does not regard prisoners as employees under work-release employers


Context: Furthermore, the omission of such proximate-cause language is especially suggestive of Congress's intent not to require proximate causation in SS 841(b)(1)(E)(r) because Congress included the language at issue here--viz., "death ... results from the use"--in 2008, after our sister circuits uniformly had held that identical language in SS 841(b)(1)(C) lacked a proximate-cause element.

"What is required under the death-enhancing statute is that the government prove cause-in-fact, that is, that the decedent's death was caused in fact by his or her use of drugs that were distributed either, by the defendant himself or by others in a conspiracy of which the defendant was a part."

See Houston, 406 F.3d at 1124 (“The plain language of § 841(b)(1)(C) demonstrates that proximate cause is not a required element.”); United States v. McIntosh, 236 F.3d 968, 972 (8th Cir.2001) (“We hold that this language is unambiguous and that giving effect to its plain meaning prohibits us from superimposing upon the statute a foreseeability or proximate cause requirement.”), abrogated on other grounds by Burrage v. United States, — U.S. —, 134 S.Ct. 881, 892, 187 L.Ed.2d 715 (2014); United States v. Robinson, 167 F.3d 824, 832 (3d Cir.l999) (“Plainly, if we read a particularized foreseeability requirement into [§ 841(b)(1)(C) ], we would limit the applicability of the section significantly and frustrate Congress’ intent.”); United States v. Patterson, 38 F.3d 139, 145 (4th Cir.1994) (“Quite simply, the plain language of § 841(b)(1)(C) does not. require, nor does it indicate, that prior to applying the enhanced sentence, the.district court must find that death resulting from the use of a drug distributed by a defendant was a reasonably foreseeable event.”); see also United States v. Webb, 655 F.3d 1238, 1250, 1254-55 (11th Cir.2011) (“[Section] 841(b)(1)(C)’s enhanced penalty requires only proof that the death resulted from the victim’s use of a controlled substance dispensed by the defendant.”); United States v. De La Cruz, 514 F.3d 121, 138 (1st Cir.2008) (“What is required under the death-enhancing statute is that the government prove cause-in-fact, that is, that the decedent’s death was caused in fact by his or her use of drugs that were distributed either, by the defendant himself or by others in a conspiracy of which the defendant was a part.”).

"We hold that this language is unambiguous and that giving effect to its plain meaning prohibits us from superimposing upon the statute a foreseeability or proximate cause requirement."


"Plainly, if we read a particularized foreseeability requirement into [SS 841(b


Context: In situations in which a project is only partially funded by the federal agency, federal courts have in some instances looked to the proportion of federal funding to non-federal funding to determine whether there is a major federal action. If the amount of federal funding is insignificant or only provided with respect to a small segment of the project, the involvement of the federal agency may not constitute a "major federal action."

"While significant federal funding can turn what would otherwise be a state or local project into a major federal action, consideration must be given to a great disparity in the expenditures forecast for the local and federal portions of the entire program."

See, e.g., Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1101 (9th Cir.2007) (“While significant federal funding can turn what would otherwise be a state or local project into a major federal action, consideration must be given to a great disparity in the expenditures forecast for the local and federal portions of the entire program.”) (internal quotation marks omitted); Ka Makani, 295 F.3d at 960 (same); Sancho v. Dep’t of Energy, 578 F.Supp.2d 1258, 1267 (D.Haw.2008) (holding that the contribution by a federal agency of $531 million toward a project did not constitute a major federal action because the funding represented less than 10% of the $5.84 billion project cost); but cf. Sierra Club v. Fish & Wildlife Serv., 235 F.Supp.2d 1109 (D.Or.2002) (“Given the overwhelming percentage of federal dollars involved, and the fact that the amount itself, regardless of the percentage it represents, is more than $3 million, the federal funding contribution alone is probably sufficient to ‘federalize’ the project.”).

"Given the overwhelming percentage of federal dollars involved, and the fact that the amount itself, regardless of the percentage it represents, is more than $3 million, the federal funding contribution alone is probably sufficient to 'federalize' the project."


holding that the contribution by a federal agency of $531 million toward a project did not constitute a major federal action because the funding represented less than 10% of the $5.84 billion project cost


Context: The circuit court agreed with the prosecutor's description. Thus, when Clark failed to comply with the terms of the "good behavior" agreement, his stipulation was "itself a conviction [and] nothing remain[ed] but to give judgment and determine punishment."

holding that a defendant's stipulation to the facts establishing guilt was the functional equivalent of guilty plea

See also Ex parte Howard, 710 So.2d 460, 465 (Ala.1997) (same); see also State v. Alien, 220 Ariz. 430, 207 P.3d 683, 687 (Ct.App.2008) (holding that a defendant’s stipulation to the facts establishing guilt was the functional equivalent of guilty plea).

holding that a defendant's strategic stipulation to certain facts of the crime was not the functional equivalent of a guilty plea where the defendant's stipulation did not establish guilt

But cf. Perkins v. State, 808 So.2d 1041, 1098 (Ala.Crim.App.1999), overruled on other grounds, Perkins v. Alabama, 586 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002) (holding that a defendant’s strategic stipulation to certain facts of the crime was not the functional equivalent of a guilty plea where the defendant’s stipulation did not establish guilt).


Context: The Fourteenth Amendment provides that "[n]o state shall ... deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const, amend. Indefinite commitment to MSOP unquestionably constitutes a "significant deprivation of liberty" that infringes upon one's fundamental right to be free from confinement.

"[C]ommitment for any purpose constitutes a significant deprivation of liberty that requires due process protection."

See Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (“[C]ommitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.”); see also Cooper v. Oklahoma, 517 U.S. 348, 368-69, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (“The requirement that the grounds for civil commitment be shown by clear and convincing evidence protects the individual’s fundamental interest in liberty.”). Where the government acts in a systematic way (for example through combined legislative and executive action) to indefinitely confine a class of citizens in detention facilities — such as those of MSOP — the government action must be narrowly tailored to serve a compelling state interest in order to pass constitutional muster.

"The requirement that the grounds for civil commitment be shown by clear and convincing evidence protects the individual's fundamental interest in liberty."


Context: P 12. Second, use of the term "willfully" indicates that the charge was brought under subsection (a)(i), that Hawkins "purposely, knowingly[,] or recklessly" caused bodily injury to another. The Court has held that terms "willfully" and "knowingly" have substantially the same meaning in criminal statutes.

"An act 'willfully' done is an act 'knowingly' and 'intentionally' done."

See also Boyd v. State, 977 So.2d 329, 335 (¶ 22) (Miss.2008) (“An act ‘willfully’ done is an act ‘knowingly’ and ‘intentionally’ done.”); Moore v. State, 676 So.2d 244, 246 (Miss.1996) (“willfully” has the same meaning as “knowingly”). Relying on Ousley, the Court of Appeals held that the terms “wilfully and feloniously” had substantially the same meaning as “purposely or knowingly” when ruling on the sufficiency of a jury instruction for aggravated assault.

indictment was sufficient even though it used the words "willfully, unlawfullyf,] and feloniously" rather than "knowingly" as used in the statute

Ousley, 122 So. at 732 (indictment was sufficient even though it used the words “willfully, unlawfullyf,] and feloniously” rather than “knowingly” as used in the statute).


Context: In this instance, the court may have acted within its discretion in excusing veni-re member number 32 for "good reason," regardless of whether it could have done so pursuant to Article 35.16(a)(ll).

"If a juror cannot understand the routine words and concepts used in a trial, the juror may be excused."

See Wright, 28 S.W.3d at 533; Erazo v. State, 93 S.W.3d 533, 535 (Tex.App.—Houston [14th Dist.] 2002), rev’d on other grounds, 144 S.W.3d 487 (Tex.Crim.App.2004) (“If a juror cannot understand the routine words and concepts used in a trial, the juror may be excused.”); see also Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App.1998) (appellate court must uphold the trial court’s decision to excuse a venire member if it was correct under any theory of law applicable to the case).

appellate court must uphold the trial court's decision to excuse a venire member if it was correct under any theory of law applicable to the case


Context: Trinidad y Garcia fails to make out a claim cognizable on habeas by invoking the Convention Against Torture ("CAT") and alleging that, if extradited, he'll face torture at his destination. What's been historically cognizable on habeas review in the extradition context is (1) whether the executive branch has the authority to detain the extraditee in the first place and whether the judicial branch has exercised proper jurisdiction over him, all of which has already been litigated and resolved against Trinidad; (2) whether the executive is operating under a valid treaty authorizing extradition, which isn't disputed here; and (3) whether the extraditee's crime falls into the political offense exception, which Trinidad doesn't allege.

See, e.g., Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925) (“[In addition to] general principles relating to extradition, ... there are further limits to habeas corpus---- [H]abeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.”); Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448 (1901); Oteiza v. Jacobus, 136 U.S. 330, 10 S.Ct. 1031, 34 L.Ed. 464 (1890); see also Cornejo-Barreto, 218 F.3d at 1009-10 (discussing the limited catego ries of habeas review in the extradition context); John T. Parry, The Lost History of International Extradition Litigation, 43 Va. J. Int’l L. 93, 97 (2002) (same).

"[In addition to] general principles relating to extradition, ... there are further limits to habeas corpus---- [H]abeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty."


Context: Neither the Supreme Court nor the Second Circuit has ruled directly on whether a there is a meaningful distinction between "exculpatory Brady" and "impeachment Brady " materials for purposes relating to the timing such information must be disclosed. Several other courts have discussed the issue at hand, which often arises in the context of a potential, if not inherent, conflict between the Government's obligations to disclose under Brady and the Government's right to delay disclosure of certain information pursuant to the Jencks Act. Those cases suggest that the court has some discretion with respect to directing the timing of such disclosure.

the court interpreted Brady to require disclosure "at the appropriate" time, which often is prior to trial

United States v. Campagnuolo, 592 F.2d 852 (5th Cir.1979) (the court interpreted Brady to require disclosure “at the appropriate” time, which often is prior to trial); United States v. Perez, 870 F.2d 1222 (7th Cir.1989) (the Government’s delay in disclosing Brady material violates due process only if the delay prevented the defendant from receiving a fair trial); United States v. Ziperstein, 601 F.2d 281 (7th Cir.1979) (a defendant receives a fair trial, notwithstanding delayed disclosure of Brady material, as long as disclosure is made before it is too late for the defendant to make use of any benefits of the evidence); but see United States v. Wilson, 565 F.Supp. 1416 (S.D.N.Y.1983) (impeachment material need not be produced prior to trial); United States v. Biaggi, 675 F.Supp. 790 (S.D.N.Y.1987) (information bearing on a witness’ credibility may be turned over at the same time as [Jencks Act] materials); United States v. Feldman, 731 F.Supp. 1189 (S.D.N.Y.1990) (it is sufficient for the Government to disclose Brady impeachment materials along with [Jencks Act] materials).

information bearing on a witness' credibility may be turned over at the same time as [Jencks Act] materials


it is sufficient for the Government to disclose Brady impeachment materials along with [Jencks Act] materials


the Government's delay in disclosing Brady material violates due process only if the delay prevented the defendant from receiving a fair trial


a defendant receives a fair trial, notwithstanding delayed disclosure of Brady material, as long as disclosure is made before it is too late for the defendant to make use of any benefits of the evidence


Context: It is clear that Cerasani's reputation is tarnished. Under Federal Rule of Evidence 201, this Court can, and does, take judicial notice of Cerasani's criminal record.

"[a] court may take judicial notice of a document filed in another court 'not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings'"

See Ives Lab., Inc. v. Darby Drug Co., 638 F.2d 538, 544 n. 8 (2d Cir.1981), rev’d on other grounds sub nom. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (taking judicial notice of return of indictments); Miller v. News Syndicate Co., 445 F.2d 356, 357 n. 1 (2d Cir.1971) (in defamation action, court took judicial notice of court proceedings that led to plaintiffs acquittal of criminal charges referred to in allegedly defamatory publication); see also Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir.1992) (“[a] court may take judicial notice of a document filed in another court ‘not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings’”) (citation omitted); Kowalski v. Gagne, 914 F.2d 299, 305-06 (1st Cir.1990) (court may take judicial notice of convictions and proceedings in other courts); Commodity Futures Trading Comm’n v. Co Petro Mktg. Group, Inc., 680 F.2d 573, 584 (9th Cir.1982) (taking judicial notice of criminal conviction).


court may take judicial notice of convictions and proceedings in other courts


Context: The requirement of the patent law that an invention or discovery reside in the application of an abstract idea, law of nature, principle, or natural phenomenon is embodied in the language of 35 U.S.C. SS 101. A patent can be awarded to one who "invents or discovers" something within the enumerated classes of subject matter -- "process," "machine," "manufacture," "composition of matter." These terms may not be read in a strict literal sense entirely divorced from the context of the patent law.

Diehr, 450 U.S. at 185, 101 S.Ct. at 1056, 209 USPQ at 7 (“[E]very discovery is not embraced within the statutory terms.” (emphasis added)); In re Schrader, 22 F.3d 290, 295-96 & n. 11, 30 USPQ2d 1455, 1459-60 & n. 11 (Fed.Cir.1994) (use of terms of art in § 101 is presumed to be in accord with their well-established meaning); cf. Stafford v. Briggs, 444 U.S. 527, 535, 100 S.Ct. 774, 780, 63 L.Ed.2d 1 (1980) (statutory provisions should be considered in light of the entire statute and purpose).

"[E]very discovery is not embraced within the statutory terms." (emphasis added


use of terms of art in SS 101 is presumed to be in accord with their well-established meaning


Context: 4. Any error resulting from the shackles and prison attire was harmless, because Kalilikane brought the shackles to the jury's attention; the district court instructed the jury to disregard Kalilikane's remarks concerning the shackles; Kalilikane chose to dress in prison attire; and there was overwhelming evidence of Kalilikane's guilt.

The defendant "must demonstrate actual prejudice to establish a constitutional violation."

See United States v. Olano, 62 F.3d 1180, 1190 (9th Cir.1995) (The defendant “must demonstrate actual prejudice to establish a constitutional violation.”) (citation omitted); see also Townsend v. Knowles, 562 F.3d 1200, 1209 (9th Cir.2009) (“The law presumes that the jury follows the instructions given.”) (citation omitted).

"The law presumes that the jury follows the instructions given."


Context: Sweeney states that after Brockington left F & W Sweeney discharged the firm in order to continue her attorney-client relationship with Brockington, Hinton, Butters, and Ponsoldt. Because F & W was discharged prior to the realization of the contingency, Sweeney argues that F & W should be relegated to quantum meruit recovery.

See also Zaklama, 906 F.2d at 652 (stating that rights under contingency fee contracts are governed by state law).

holding that a discharged firm's recovery is limited to quantum meruit

Myszka v. Henson & Henson, P.C., 170 Ga.App. 878, 318 S.E.2d 672, 673 (1984) (holding that a discharged firm’s recovery is limited to quantum meruit).


Context: For example, in opinions also cited in Lowenfield, the Courts of Appeals for the First and Eighth Circuits established rules requiring deadlock instructions to direct both the minority and the majority to reconsider their views, to include an explanation that the jury may remain deadlocked and to remind the jury to apply the reasonable doubt standard. Since Lowenfield, both of these courts have reversed convictions because the district court failed to address each of the required points.

stating three elements that must be present in supplemental charge and affirming district court's order granting defendant a new trial because the court failed to convey adequately the second element of the charge, i.e., that "a jury has the right to fail to agree"

See United States v. Manning, 79 F.3d 212, 222 (1st Cir.1996); United States v. Robinson, 953 F.2d 433, 436 (8th Cir.1992) (considering both the content of the instruction and its probable effect); see also United States v. Paniagua-Ramos, 135 F.3d 193, 197-98 (1st Cir.1998) (stating three elements that must be present in supplemental charge and affirming district court's order granting defendant a new trial because the court failed to convey adequately the second element of the charge, i.e., that "a jury has the right to fail to agree”).


Context: The Baers acknowledge that the statute could be interpreted that way as well. See ibid. This case therefore is unlike those where the relevant government actor is constrained by law to deny the application.

"appellants conceded in the District Court that any application from Rabinovitch for a loan would be refused because of SS 661(3

See Nyquist, 432 U.S. at 6 n. 7, 97 S.Ct. 2120 (“appellants conceded in the District Court that any application from Rabinovitch for a loan would be refused because of § 661(3)”). The Secretary, on whom the statute confers “discretion,” 625 ILCS 5/6-106(b), could grant the Baers’ applications.

Cf. Mefford v. White, 331 Ill.App.3d 167, 264 Ill.Dec. 555, 770 N.E.2d 1251, 1255 (Ill.App.2002) (rejecting Free Exercise challenge to statute and regulation, but expressly not addressing whether an applicant similar to the Baers complied with the statute and regulation as a matter of Illinois law).


Context: The government failed to establish that Garcia had any knowledge of the hidden compartment in the Altima.

stating that "[t]he weakness lies in the circumstance that the evidence shows no contemporaneous knowledge or intent" during the prior act

See United States v. Greenfield, 554 F.2d 179, 186 (5th Cir.1977) (stating that “[t]he weakness lies in the circumstance that the evidence shows no contemporaneous knowledge or intent” during the prior act); see also Jimenez, 613 F.2d at 1376 (finding extrinsic evidence of prior possession where defendant denied knowledge of possession should not have been admitted because under the circumstances, “no reasonable jury could have found appellant guilty of the alleged cocaine possession”).

finding extrinsic evidence of prior possession where defendant denied knowledge of possession should not have been admitted because under the circumstances, "no reasonable jury could have found appellant guilty of the alleged cocaine possession"


Context: A property-rights approach also illuminates this important difference arid provides an analytical framework for harmonizing Booth, Lake, and the facts of this case. Unlike tenants in an apartment building, the residents of a single-family home have "the right of selecting ... guests or visitors" and a "legal right to exclude [people] from [the]' premises at any time and under all circumstances."

finding a defendant guilty of trespass when police found him on the front steps of someone else's residence and rejecting the defendant's assertion that he could not be guilty of trespass because the steps were presumptively open to the public

See Booth, 670 N.W.2d at 212 n. 1. In other words, although Paye did not exercise her right to exclude or impede access, the fact she had that right.makes her front stairs more like the vehicle interior in Lake than the common areas and hallways at issue in Booth. See id.', Lake, 476 N.W.2d at 56; cf. State v. Mondaine, 178 S.W.3d 584, 587-88 (Mo.Ct.App.2005) (finding a defendant guilty of trespass when police found him on the front steps of someone else’s residence and rejecting the defendant’s assertion that he could not be guilty of trespass because the steps were presumptively open to the public).

characterizing the right to exclude others as "one of the most essential sticks in the bundle of rights that are commonly characterized as property"

Rader v. Davis, 154 Iowa 306, 312-13, 134 N.W. 849, 851 (1912); see also Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S.Ct. 383, 391, 62 L.Ed.2d 332, 344 (1979) (characterizing the right to exclude others as “one of the most essential sticks in the bundle of rights that are commonly characterized as property”). This important right to exclude persons from the property is a significant difference separating apartment houses and single-family homes.


Context: Even assuming that Kamau demonstrated that his group is socially visible, he has not shown that he was persecuted "on account of' his membership in that group.

See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b)(1). Specifically, substantial evidence supports the IJ’s conclusion that the Mungiki targeted him because of his economic status in the community as the owner of a matatu—a type of minibus. See Ayala v. Sessions, 855 F.3d 1012, 1020-21 (9th Cir. 2017) (noting that extortion qualifies as past persecution only when the extortion is motivated by a protected ground); see also Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008) (“These [economic and personal] motivations do not constitute persecution on account of political opinion.”), abrogated on other grounds by Henriquez-Rivas, 707 F.3d at 1093.

"These [economic and personal] motivations do not constitute persecution on account of political opinion."