Context: Having established the basis of our jurisdiction, we turn to the three issues the Property Owners have raised on appeal. We first address whether the district court erred in concluding that the Easements have not terminated or been extinguished pursuant to the reversionary language contained in the right-of-way deeds. Our review of this issue is governed by Wyoming state law.

"Absent controlling federal legislation or rule of law, questions involving real property rights are determined under state law, even when the United States is a party." (emphasis added

See United States v. Dunn, 557 F.3d 1165, 1172 n. 5 (10th Cir.2009) (“Deeds are a type of contract, and this court presumptively applies state law when interpreting contracts.”); Rio Grande, 599 F.3d at 1177 (“[Questions involving ownership, transfer, and title to real estate have traditionally been resolved according to the laws of the state where the realty is located.” (quotations omitted)); see also United States v. O’Block, 788 F.2d 1433, 1435 (10th Cir.1986) (“Absent controlling federal legislation or rule of law, questions involving real property rights are determined under state law, even when the United States is a party.” (emphasis added)).

"Deeds are a type of contract, and this court presumptively applies state law when interpreting contracts."


Context: I suggest, however, that the distinction between "mere modes of procedure" and substantial or vital procedural protections is a wobbly one under current Supreme Court jurisprudence. One other early case seems squarely to hold that a procedural change in state law violated the ex post facto clause.

Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882) (change in the law applicable to guilty pleas, which exposed defendant to conviction for a more serious crime, and operated retroactively, violated ex post facto clause), A number of other decisions have found no ex post facto violation in retroactive “procedural” changes.

See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (change in role of Florida juries in death penalty cases); Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925) (defendant forced to undergo joint rather than separate trial for crime); Mallett v. North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015 (1901) (state allowed to appeal from intermediate court’s award of new trial to defendant); Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898) (prior to second trial, law was changed to make circumstantial evidence admissible against defendant and he was convicted); Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896) (change in juror qualifications); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884) (change to allow convicted felon to testify as a witness against defendant).


defendant forced to undergo joint rather than separate trial for crime


state allowed to appeal from intermediate court's award of new trial to defendant


prior to second trial, law was changed to make circumstantial evidence admissible against defendant and he was convicted


change to allow convicted felon to testify as a witness against defendant


Context: Count I. The first allegedly false representation is Cumberland's argument in the demurrer that the usury counterclaim was too vague to answer and failed to state a claim. Penn alleges that the usury claim was neither too vague to answer nor did it fail to state a claim, as demonstrated by the fact that the demurrer was overruled and that Cumberland knew or should have known what interest was charged on the debt and therefore had the necessary information. Although the demurrer was overruled, that alone does not make Cumberland's legal argument false.

"[W]e do not see how the fact that a lawsuit turns out ultimately to be unsuccessful could, by itself, make the bringing of it an 'action that cannot legally be taken.' "

See also Heintz, 514 U.S. at 296, 115 S.Ct. 1489 (“[W]e do not see how the fact that a lawsuit turns out ultimately to be unsuccessful could, by itself, make the bringing of it an ‘action that cannot legally be taken.’ ”).

See Hemmingsen, 674 F.3d at 819 (nothing false or misleading about attorney filing an unsuccessful motion for summary judgment).


Context: Specifically, Fayemi alleges that Pucinski acted with "deliberate indifference in not allowing Plaintiff to seek redress in the state court because she was the one to file the claim herself and she refused to" file that claim. (Pl.'s Compl., Statement of Claim at P 3.) Further, while in general he refers to the "clerk" as the person he spoke with in conjunction with obtaining his refunded bail money, he does refer to the clerk as a "she" in his prayer for relief: "Plaintiff wants the defendant to pay him ... for the money she carelessly gave away without Plaintiffs authorization.... " (Pl.'s Cpmpl., Relief at P 1.) Thus, the court finds that Fayemi has sufficiently pleaded a SS 1983 claim against Pucinski in her individual capacity.

See McMurry, 927 F.Supp. at 1087-88 (finding that plaintiff properly pleaded an individual-capacity claim by alleging that defendant, Pucinski, knew for the problems but did nothing); Carroll v. Pucinski, No. 91 C 3210, 1992 WL 59126, at *2 (N.D.Ill. Mar. 16, 1992) (finding that Pucinski’s official position as Clerk is sufficient to permit an inference of personal involvement until such time as she comes forward and identifies those persons who failed to process plaintiffs papers).

Cf. Farrar, 2000 WL 574682, at *4 (holding that plaintiff did not properly plead an individual-capacity claim because she did not allege that defendant Pucinski entered the incorrect information herself).


finding that Pucinski's official position as Clerk is sufficient to permit an inference of personal involvement until such time as she comes forward and identifies those persons who failed to process plaintiffs papers


Context: Thirty-seven states have judges elected in some manner. Recusal for involvement in a judge's campaign has rarely been found to be required. In fact, the writer has found no case in which recusal was required solely for campaign activity other than where there was substantial involvement with a campaign then underway.

Recusal not required for reason that lawyers involved had contributed "many thousands" of dollars to the judges' campaigns.

But see, Rocha v. Ahmad, 662 S.W.2d 77 later proceeding 676 S.W.2d 149 (Tex.App.1983) (Recusal not required for reason that lawyers involved had contributed “many thousands” of dollars to the judges’ campaigns.); Keane v. Andrews, 555 So.2d 940 (Fla.App.1990) (Recusal not required because of financial contribution to judge’s campaign.); Gluth Bros. Constr. Inc. v. Union Nat. Bank, 192 Ill.App.3d 649, 139 Ill.Dec. 650, 548 N.E.2d 1364 appl. den. 131 Ill.2d 559, 142 Ill.Dec. 881, 553 N.E.2d 395 (1989) (Counsel’s service as campaign manager six years before not grounds for recusal of judge.); Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003 (1989) (Attorney’s service as co-chairman of campaign in past insufficient grounds for recusal).

See, Caleffe v. Vitale, 488 So.2d 627 (Fla.App.1986) (Ongoing campaign, judge disqualified.); Barber v. MacKenzie, 562 So.2d 755 (Fla.App.1990) (Recusal required where lawyers were on an ongoing campaign committee).


Recusal not required because of financial contribution to judge's campaign.


Counsel's service as campaign manager six years before not grounds for recusal of judge.


Attorney's service as co-chairman of campaign in past insufficient grounds for recusal


Context: We note that this case does not require us to decide whether the possession of a pipe bomb, silencer, sawed off shotgun, or other instrumentality that is generally associated with violence and has little socially useful value constitutes a predicate offense.

See United States v. Dodge, 846 F. Supp. 181, 184 (D. Conn. 1994) (silencer and pipe bomb inherently dangerous weapons for which there is no peaceful use, and thus, their possession is predicate offense under Federal pretrial detention statute).

"Some firearms, it is true -- for- example sawed-off shotguns -- have no significant lawful use, and so their possession by felons may well constitute a crime of violence . . ."

See also United States v. Lane, 252 F.3d 905, 907 (7th Cir. 2001) (“Some firearms, it is true — for- example sawed-off shotguns — have no significant lawful use, and so their possession by felons may well constitute a crime of violence . . .”). Cf. Cepulonis v. Commonwealth, 384 Mass. 495, 497-498 (1981), appeal dismissed, 455 U.S. 931 (1982) (sentence of from forty to fifty years for unlawful possession of machine gun not unconstitutionally disproportionate because Legislature could infer from “common knowledge that the unlicensed possession of machine guns is almost always associated with the commission of violent crimes with the potential for mass killing”).


Context: Based on the Court's finding that venue is proper for the securities fraud claims, the Court also finds that this District is an appropriate venue for the RICO claims asserted against the Non-Mick Defendants. This is because the RICO claims are an alternative avenue of relief to remedy the same wrongs asserted in Plaintiffs securities fraud claims.

stating where two separate claims "amount to only one cause of action with two grounds for relief, proper venue as to one federal ground will support adjudication of both grounds"

See Beattie v. United States, 756 F.2d 91, 100 (D.C.Cir.1984) (stating where two separate claims “amount to only one cause of action with two grounds for relief, proper venue as to one federal ground will support adjudication of both grounds”), overruled on other grounds by Smith v. United States, 507 U.S. 197, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993); see also High River Ltd. P’ship v. Mylan Labs., Inc., 353 F.Supp.2d 487, 493 (M.D.Pa.2005) (stating that, under doctrine of pendent venue, “where claims arise out of the same operative facts” venue exists over both claims, “even if venue over the pendent claim would not otherwise be proper”).

stating that, under doctrine of pendent venue, "where claims arise out of the same operative facts" venue exists over both claims, "even if venue over the pendent claim would not otherwise be proper"


Context: In this case debtors did not post the bond for the stay, and the project has since been sold to a good faith purchaser. This does not conclude our inquiry, however, because the reorganization plan governed more than just the sale of the project, and an appeal is not moot if the court can still order some effective relief.

See In re Matos, 790 F.2d at 865 n. 3 (although court could not reverse title if the debtor failed to obtain a stay pending appeal, the appeal was not moot where the debtor could obtain an award of damages from the trustee); see also In re AOV Indus., 792 F.2d 1140, 1146 (D.C.Cir.1986) (“[Fjailure to obtain a stay is not per se dispositive of all the issues before [the appellate court].”).

"[Fjailure to obtain a stay is not per se dispositive of all the issues before [the appellate court]."


Context: McGuire argued in his venue motion that the pretrial publicity was pervasive and unfairly prejudicial. He attached to his venue motion several articles concerning the accident and his criminal prosecution that had been published online and in print. However, he offered no evidence regarding the circulation of these materials.

failure to produce newspaper circulation statistics instrumental in court's rejection of appellant's pretrial publicity claims

See Ryser, 453 S.W.3d at 35 (considering readership of newspapers containing relevant articles and viewership of news programs in evaluating pervasiveness of pretrial publicity); see also U.S. v. Ricardo, 619 F.2d 1124, 1132 (5th Cir.1980) (failure to produce newspaper circulation statistics instrumental in court’s rejection of appellant’s pretrial publicity claims).


Context: The trial court told the jury, in essence, to continue deliberating. Given the short period of time the jury had been deliberating, that response was reasonable and not inherently coercive.

instruction to "go back there and deliberate on this case" not reversible error

State v. Bedford (1988), 39 Ohio St.3d 122, 126, 529 N.E.2d 913 (noting that that judge’s response to a question about a possible deadlock situation that instructed the jury to continue deliberating was a “reasonable response”); see also State v. Gulertekin (Dec. 3, 1998), Franklin App. No. 97APA12-1607, 1998 WL 831463 (instruction to “go back there and deliberate on this case” not reversible error); State v. Long (Oct. 12, 2000), Cuyahoga App. No. 77272, 2000 WL 1514330 (response that jury .should “continue to deliberate” after only a few hours of deliberations was not coercive); State v. Boose (Mar. 25, 1994), Lucas App. No. L-93-095, 1994 WL 101961 (same); United States v. Kramer (C.A.7, 1992), 955 F.2d 479, 489 (an instruction to continue to deliberate was content-neutral and not in error). Therefore, we overrule appellant’s third assignment of error.

noting that that judge's response to a question about a possible deadlock situation that instructed the jury to continue deliberating was a "reasonable response"


response that jury .should "continue to deliberate" after only a few hours of deliberations was not coercive


an instruction to continue to deliberate was content-neutral and not in error


Context: See, e.g. Graham v. Children's Servs. In fact, the Oregon courts have gone so far as to hold that even a custodial grandparent lacks a protected interest in the adoption of her grandchildren.

Graham, 591 P.2d at 377-78 (considering appeal by grandmother who had temporary custody of children for 14 months prior the filing of the adoption petition); see also Browder v. Harmeyer, 453 N.E.2d 301, 308-09 (Ind.Ct.App.1983) (similar); but cf. In re P.C., 842 P.2d 364, 367 (Ok.Ct.App.1992) (holding that grandmother in loco “parentis of her three grandchildren had protected liberty interest in their future care and custody).

holding that grandmother in loco "parentis of her three grandchildren had protected liberty interest in their future care and custody


Context: Furthermore, the driveway was clearly delineated, uniformly covered in crushed stone and plainly visible from the defendant's front yard. The court reasonably considered these physical attributes, together with the nature and character of the right-of-way, to be persuasive evidence supporting the plaintiffs testimony that she had used the right-of-way in the manner and for the very purpose depicted in the site plan, that is, for ingress to and egress from her residence.

design and construction of building so as to facilitate access to disputed yard supported trial court's finding that plaintiffs' use of yard was adverse to owners' interests

See Phillips v. Bonadies, 105 Conn. 722, 727-28, 136 A. 684 (1927) (design and construction of building so as to facilitate access to disputed yard supported trial court’s finding that plaintiffs’ use of yard was adverse to owners’ interests); see also Klein v. DeRosa, supra, 137 Conn. 588-89 (physical conditions in existence when defendants acquired their land were sufficient to put them on notice that plaintiffs use of right-of-way was adverse and under claim of right).


Context: As stated, the girlfriend owned the home and shared the bedroom with defendant. We can reasonably conclude that the cosmetic table and dresser were under the common authority of both defendant and his girlfriend and that the police reasonably believed that the girlfriend, as owner of the home, had the authority to consent to the search.

"official reliance on the consent may validate the search if it was reasonable for the officers to believe the third party had the requisite relationship"

See Canaan, 683 N.E.2d at 231 (citing Illinois v, Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (“official reliance on the consent may validate the search if it was reasonable for the officers to believe the third party had the requisite relationship”).

upholding the admissibility of a knife after a roommate's consent permitted officers to search lawfully the common areas of the residence from which the knife could be seen in plain view on a dresser in defendant's room

See also Perry, 638 N.E.2d at 1241; Wright, 593 N.E.2d at 1199 (upholding the admissibility of a knife after a roommate’s consent permitted officers to search lawfully the common areas of the residence from which the knife could be seen in plain view on a dresser in defendant’s room).


Context: The line between computer-centric problems and commonplace business problems is often blurred in the context of Internet commerce. Nonetheless, courts have definitively stated that an otherwise abstract idea is not rendered patent-eligible by reciting general purpose technological components.

Alice, 134 S.Ct. at 2357 (holding that the introduction of a computer into the claims does not render the idea patent-eligible); see also Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715-16 (Fed.Cir. 2014) (finding that claims which merely recited the abstract idea of using advertising as a currency as applied to the particular technological environment of the Internet were not patent-eligible).


Context: The decisional law as far back as 1860 has focused on the prerequisite of compulsion: "[The right] exempts no one from the consequences of a crime which he may have committed, but only from the necessity of himself producing the evidence to establish it." Stated concisely, our cases establish that there is a right not to be forced to speak, but there is no right to bar a confession freely given after appropriate warnings and waivers.

"The Fifth Amendment is not a bar to any conviction resting on self-incrimination. It prohibits only compelled self-incrimination."

See also Corder v. State, 467 N.E.2d 409, 415 (Ind.1984) (defendant who spoke freely to court-appointed psychiatrists was not denied his rights under Section 14 or the Fifth Amendment); Ross v. State, 204 Ind. 281, 293, 182 N.E. 865, 869 (1932) (“The essence of the privilege is freedom from testimonial compulsion.”); cf. State ex rel. Keller v. Criminal Court of Marion County, 262 Ind. 420, 428, 317 N.E.2d 433, 438 (1974) (“The Fifth Amendment is not a bar to any conviction resting on self-incrimination. It prohibits only compelled self-incrimination.”).


"The essence of the privilege is freedom from testimonial compulsion."


Context: 180 We further find Appellant was not denied the right to counsel, nor was he denied the right to be present during a "critical stage" of the proceedings.

See Stemple v. State, 2000 OK CR 4, ¶ 15, 994 P.2d 61, 66 (finding no error in a defendant's absence during in camera hearing with spectator who had spoken with a juror); see also Rushen v. Spain, 464 U.S. 114, 118, 104 S.Ct. 453, 455-56, 78 L.Ed.2d 267 (1983) (where the Court found an unrecorded ex parte communication between trial judge and juror could be harmless error, stating: "There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial." )


Context: Because the allowable unit of prosecution is the property taken, the State would not be able to prosecute Byrd again for the theft of the same items, alleging Wal-Mart as the owner. Any subsequent charge involving the same property would constitute the same offense.

"Appellant is in no danger of being prosecuted again for theft of the same cart proved at trial."

See Cavazos, 203 S.W.3d at 337; Gollihar, 46 S.W.3d at 258 (“Appellant is in no danger of being prosecuted again for theft of the same cart proved at trial.”); see also U.S. v. Apodaca, 843 F.2d 421, 430 n. 3 (10th Cir.) (entire record may be reviewed to determine whether double jeopardy prevents subsequent prosecution), cert. denied, 488 U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988).


Context: The record, however, does not support this claim. The bare representation of counsel as to Tirrell's fear of Walpole does not make out coercion different in kind or degree from the inevitable decision-making pressures described above.

Compare Commonwealth v. Hubbard, 371 Mass. 160, 170-171 (1976) (even if suffering from amnesia as to commission of crime, defendant was competent to plead guilty if he was able to consult with attorney and weigh options); Commonwealth v. Leate, 367 Mass. 689, 696 (1975) (without supporting evidence of defendant’s low mental ability, court upheld trial judge’s finding of sufficient capacity to understand consequences of guilty plea).

coercion established if fear of greater penalty destroyed defendant's ability to weigh relative advantages of trial and plea

See Jones v. Estelle, 584 F.2d 687, 690 (5th Cir. 1978) (coercion established if fear of greater penalty destroyed defendant’s ability to weigh relative advantages of trial and plea).


defendant's declaration in open court carries strong presumption of verity and court may dismiss subsequent unsupported conclusory allegations of coercion

Cf. Blackledge v. Allison, 431 U.S. 63, 74 (1977) (defendant’s declaration in open court carries strong presumption of verity and court may dismiss subsequent unsupported conclusory allegations of coercion).


without supporting evidence of defendant's low mental ability, court upheld trial judge's finding of sufficient capacity to understand consequences of guilty plea


Context: The court, however, notes that this policy statement is totally devoid of any limitations, restrictions, or remarks regarding the right of employee welfare benefit plans governed by ERISA to seek subrogation or reimbursement. Moreover, it must be recognized that the Eighth Circuit Court of Appeals and other federal courts have upheld subrogation provisions in ERISA plans.

See Waller v. Hormel Foods Corp., 120 F.3d 138, 140 (8th Cir.1997) (holding that ERISA medical benefits plan’s subro-gation provision gave plan “first priority” claim to any recovery); Cooper Tire & Rubber Co. v. St. Paul Fire and Marine Ins. Co., 48 F.3d 365 (8th Cir.1995) (holding that plan administrator abused its discretion when it interpreted plan as giving it the right to subrogation with respect to all claims and not just those claims for medical expenses); see also Gourley, 248 F.3d at 220 (holding that self-insured health benefit plan was entitled to reimbursement from the uninsured motorist benefits plaintiff insured received); Wendy’s Int’l, Inc. v. Karsko, 94 F.3d 1010, 1012 (6th Cir.1996) (holding that money received by plan participant pursuant to an uninsured motorist policy was within scope of plan’s subrogation provisions); Cutting v. Jerome Foods, Inc., 993 F.2d 1293, 1299 (7th Cir.1993) (holding that ERISA employee benefits plan was subrogated to all claims by covered individual against third party for all payments made by the plan).

holding that ERISA medical benefits plan's subro-gation provision gave plan "first priority" claim to any recovery


holding that money received by plan participant pursuant to an uninsured motorist policy was within scope of plan's subrogation provisions


holding that ERISA employee benefits plan was subrogated to all claims by covered individual against third party for all payments made by the plan


holding that plan administrator abused its discretion when it interpreted plan as giving it the right to subrogation with respect to all claims and not just those claims for medical expenses


Context: With respect to defendants' transfer motion, 28 U.S.C. SS 1404(a) allows a district court, for the convenience of parties and witnesses and in the interest of justice, to transfer a case to a court where the case might have been brought. The Supreme Court instructs that the existence of a forum selection clause is only one of several factors which a court must consider when ruling on a motion to transfer, though such a clause is "a significant factor that [must] figure centrally in the District Court's calculus."

denying transfer motion where court found that forum selection clause did not "weigh heavily enough to tip the scales away from plaintiffs choice of forum"

The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972) (forum selection clauses “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable”); Ricoh, 487 U.S. at 33, 108 S.Ct. at 2249-50 (Kennedy, J. concurring); but see Fibra-Steel, Inc. v. Astoria Industries, Inc., 708 F.Supp. 255, 256-57 (E.D.Mo.1989) (denying transfer motion where court found that forum selection clause did not “weigh heavily enough to tip the scales away from plaintiffs choice of forum”). Other factors to be considered include the convenience of the alternate forum “given the parties’ expressed preference for that venue, and the fairness of transfer in light of the ... parties’ relative bargaining power.”

forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable"


Context: (Footnotes omitted.) Frank S. Alexander, Georgia Real Estate Finance and Foreclosure Law, p. 37, SS 2:3 (2014-2015 ed.).

See also Hill v. Perkins, 218 Ga. 354 (127 SE2d 909) (1962); Cordele Banking Co. v. Powers, 217 Ga. 616, 619-620 (1), (2) (124 SE2d 275) (1962) (the individual indebtedness of one of the grantors is not the debt of both of the grantors and does not fall within the open-end clause of the security deed); In re Felker, 181 BR 1017 (Bankr. M.D. Ga. 1995); Americus Finance Co. v. Wilson, 189 Ga. 635, 636 (1) (7 SE2d 259) (1940); cf. Sutton v. Atlantic Bank & Trust Co., 167 Ga. App. 861, 863 (307 SE2d 746) (1983) (subsequent debts were deemed secured where it was clear that the grantors included either the singular or the plural grantors and that it was uncontradicted that all the parties to the deed intended that the debts of one borrower would be secured by deed). As our Supreme Court has explained, “it is obvious that an additional debt of one creditor cannot operate as a hook to grab a dragnet which carries with it the property interests of a party other than the creditor in the separate transaction.”


Context: As noted earlier, the defendant argues that the plaintiff did not engage in protected conduct by threatening to file a grievance, but agrees that "[a]n inmate has an undisputed First Amendment right to file grievances against prison officials on his own behalf." Nonetheless, the defendant is correct that neither the Sixth Circuit nor the Supreme Court has ad dressed explicitly whether threatening to file a grievance constitutes protected conduct.

suggesting without further explanation or citation that "it seems implausible that a threat to file a grievance would itself constitute a First Amendment-protected grievance"

But see Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir.2009) (suggesting without further explanation or citation that “it seems implausible that a threat to file a grievance would itself constitute a First Amendment-protected grievance”).

See Harbin-Bey v. Rutter, 420 F.3d 571, 579 (6th Cir.2005) (finding against the plaintiff who claimed his protected conduct was threatening to file a lawsuit because he had not shown that a prisoner of ordinary firmness would be deterred); Scott v. Kilchermann, 230 F.3d 1359, 2000 WL 1434456, at *2 (6th Cir. Sep. 18, 2000) (holding that a prisoner did not engage in protected conduct when he threatened to file a frivolous grievance).


holding that a prisoner did not engage in protected conduct when he threatened to file a frivolous grievance


Context: This Court has jurisdiction to review a confined immigrant's application for a writ of habeas corpus.

holding that "habeas jurisdiction under SS 2241 was not repealed by ... [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 'IIRIRA']"

INS v. St. Cyr, 533 U.S. 289, 312-13, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that “habeas jurisdiction under § 2241 was not repealed by ... [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, ‘IIRIRA’]”).

noting that "federal courts retain habeas jurisdiction to review statutory and constitutional claims"

See also Bravo v. Ashcroft, 341 F.3d 590, 592-93 (5th Cir.2003) (noting that “federal courts retain habeas jurisdiction to review statutory and constitutional claims”); Zadvydas v. Underdawn, 185 F.3d 279 (5th Cir.1999) (finding jurisdiction to hear a habeas challenge to a de-portable immigrant’s continued detention), overruled on other grounds by Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).


finding jurisdiction to hear a habeas challenge to a de-portable immigrant's continued detention


Context: And even though Chapman and A.E.W. each "chipped in" $20, Chapman made the money exchange for the heroin. Further, Chapman took possession of the entire purchase and "cooked" the heroin, playing an active role in the transaction.

stating that drug user's action of cooking heroin was a direct cause of another drug user's death

See Meyer, 646 N.W.2d at 904 (concluding that, for purposes of section 609.195(b), “selling” includes manufacturing a controlled substance); see also State v. Rodriguez, No. A06-711, 2007 WL 1412880, at *1 (Minn. App. May 15, 2007) (stating that drug user’s action of cooking heroin was a direct cause of another drug user’s death), review denied (Minn. Aug. 7, 2007). Finally, Chapman prepared a needle to take home to his girlfriend, acting as a go-between for another addict.

concluding that, for purposes of section 609.195(b), "selling" includes manufacturing a controlled substance


Context: The Court also finds that, even assuming RUS's actions were consistent with its own regulation SS 1794.3, such an interpretation would be invalid as applied in the instant case because it would conflict with NEPA and the implementing regulations promulgated by the CEQ. The agency is not entitled to substantial deference with respect to the interpretation of the CEQ regulations, including SS 1508.18 defining "major federal action."

"CEQ guidelines are entitled to substantial deference in interpreting the meaning of NEPA provisions, even when CEQ regulations are in conflict with an interpretation of NEPA adopted by one of the Federal agencies."

See, e.g., Grand Canyon Trust v. FAA, 290 F.3d 339, 342 (6th Cir.2002) (“Although federal agencies have discretion to decide whether a proposed action is significant enough to warrant preparation of an EIS, the court owes no deference to the [Federal Aviation Administration’s] interpretation of NEPA or the CEQ regulations because NEPA is addressed to all federal agencies and Congress did not entrust administration of NEPA to the [Federal Aviation Administration] alone.”) (internal quotation marks omitted); see also (Citizens Against Rails-to-Trails, 267 F.3d at 1150) (“Because NEPA’s mandate is addressed to all federal agencies, the [Surface Transportation Board’s] determination that NEPA is inapplicable ... is not entitled to the deference that courts must accord to an agency’s interpretation of its governing statute.”); Morris Cnty., 714 F.2d at 276 (“CEQ guidelines are entitled to substantial deference in interpreting the meaning of NEPA provisions, even when CEQ regulations are in conflict with an interpretation of NEPA adopted by one of the Federal agencies.”) (citing Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943(1979)).

"Although federal agencies have discretion to decide whether a proposed action is significant enough to warrant preparation of an EIS, the court owes no deference to the [Federal Aviation Administration's] interpretation of NEPA or the CEQ regulations because NEPA is addressed to all federal agencies and Congress did not entrust administration of NEPA to the [Federal Aviation Administration] alone."


Context: Nonetheless, we have "borrowed" this part of section 2508(d) and applied it to mandatory transfers. Likewise, we construe section 2509(g) as applying to mandatory transfers under 2508(b), just as it applies to permissive transfers under 2508(d), because to do otherwise would -- as discussed above -- lead to absurd results.

rejecting an interpretation of a Virgin Islands statute that "would lead to unjust and absurd results" because such an interpretation would be "clearly inconsistent with the Legislature's intent"

Transp. Auth., 539 F.3d 199, 210 (3d Cir. 2008) (“We also consider the overall object and policy of the statute . . . and avoid constructions that produce odd or absurd results or that are inconsistent with common sense.”) (internal quotation marks omitted); see also Gilbert v. People, 52 V.I. 350, 365 (V.I. 2009) (rejecting an interpretation of a Virgin Islands statute that “would lead to unjust and absurd results” because such an interpretation would be “clearly inconsistent with the Legislature’s intent”).

"interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available."

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S. Ct. 3245, 73 L. Ed. 2d 973 (1982) (“interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.”); Disabled in Action of Penn. v. Southeastern Penn.


"We also consider the overall object and policy of the statute . . . and avoid constructions that produce odd or absurd results or that are inconsistent with common sense."


Context: Where, as here, the United States seeks equitable relief brought by the United States under 18 U.S.C. SS 1964(a), "the government need not, as [Defendants] assert, demonstrate a new RICO violation to justify issuance of the injunction."

rejecting argument that "the Government must show present RICO violations to secure [injunctive] relief'

Local 560, 974 F.2d at 325 n. 5 (“[Defendant] erroneously argues ... that to succeed the government must prove a new RICO offense based on conduct which occurred after the March 16, 1984 Judgment Order”); see also United States v. Local 6A, Cement & Concrete Workers, 663 F.Supp. 192, 195 (S.D.N.Y.1986) (rejecting argument that “the Government must show present RICO violations to secure [injunctive] relief’).

"[Defendant] erroneously argues ... that to succeed the government must prove a new RICO offense based on conduct which occurred after the March 16, 1984 Judgment Order"


Context: The analytical distinction between determining whether a licensing requirement establishes a standard of care and determining whether a violation of such a requirement is a proximate cause of plaintiffs injury can often become blurred, and the Virginia courts have been more inclined to resolve negligence per se claims based on licensing requirements by concluding that the violation of a licensing requirement is not a proximate cause of the injury.

finding that the lack of a driver's license, albeit a statutory violation, "did not proximately cause or contribute to the collision"

See Laughlin v. Rose, 200 Va. 127, 104 S.E.2d 782, 786 (1958) (finding that the lack of a driver’s license, albeit a statutory violation, “did not proximately cause or contribute to the collision”); White v. Edwards Chevrolet Co., 186 Va. 669, 43 S.E.2d 870, 871 (1947) (remarking that driving a truck after expiration of a permit did not cause injury, just as “the failure of a competent driver to obtain a chauffeur’s license could not, by any possibility, have contributed proximately to the happening of the automobile collision complained of’ (citations and internal quotation marks omitted)); see also Bentley, 445 S.E.2d at 133 (observing that “[vjiolation of a traffic statute constitutes negligence, but imposition of liability depends on whether that negligence was a proximate cause of the accident”).

observing that "[vjiolation of a traffic statute constitutes negligence, but imposition of liability depends on whether that negligence was a proximate cause of the accident"


Context: While it is true that Congress cannot save an overbroad statute by adding a rule of construction that contradicts the statute's substantive provisions, in this case the rule of construction does not contradict the plain meaning of the statute. Instead, the context of the statute dictates that "personal property" excludes solely intangible items and therefore speech or expressive conduct, such as protests or documentaries, which cause damage only to an animal enterprise's profits is not criminalized by AETA. The rule of construction in subsection (e)(1) of AETA simply reinforces the plain language of the statute.

"We are. satisfied tirat AETA includes safeguards in the form of its expression-protecting rules of construction, which preclude an interpretation according to which protected speech activity resulting in lost profits gives rise to liability. under subsection (a)(2)(A)."

Blum v. Holder, 744 F.3d 790, 801 (1st Cir. 2014) (“We are. satisfied tirat AETA includes safeguards in the form of its expression-protecting rulés of construction, which preclude an interpretation according to which protected speech activity resulting in lost profits gives rise to liability. under subsection (a)(2)(A).”); cf. CISPES v. F.B.I., 770 F.2d 468, 474 (5th Cir. 1985) (rule of construction deemed a “valuable indication of Congress’ concern for the preservation of First Amendment rights”).

rule of construction deemed a "valuable indication of Congress' concern for the preservation of First Amendment rights"


Context: Even if the Court considered this evidence inadmissible under Rule 404(b), the evidence would still be admissible under the "inclusionary" approach. A rational factfinder may reasonably infer that the stun gun, handcuff key and ski mask would tend to establish that Cruz had knowledge of, and intent or motive to possess, the firearm located within his vehicle.

upholding the admission of other firearms that were present in defendant's apartment and vehicle to establish defendant's knowledge of the presence of an Uzi in defendant's apartment

See, e.g., United States v. Brown, 961 F.2d 1039, 1042 (2d Cir.1992) (upholding the admission of other firearms that were present in defendant’s apartment and vehicle to establish defendant’s knowledge of the presence of an Uzi in defendant’s apartment); see also United States v. Hatfield, 815 F.2d 1068, 1072-73 (6th Cir.1987) (upholding the admission of burglary tools and police scanners found in defendant’s van as probative evidence of defendant’s knowledge of presence of gun in the van).

upholding the admission of burglary tools and police scanners found in defendant's van as probative evidence of defendant's knowledge of presence of gun in the van


Context: In contrast, under Rhoditis, business activities in the United States can satisfy the "base of operations" requirement regardless of whether the particular activities in question were related to the plaintiffs injury.

holding "base of operations" requirement fulfilled where defendant kept its largest office in New York, was 95% owned by a U.S. domiciliary who had lived in the United States for twenty-five years, and derived its "entire income" from shipping cargo to or from the United States

See, e.g., Rhoditis, 398 U.S. at 307-08, 90 S.Ct. 1731 (holding “base of operations” requirement fulfilled where defendant kept its largest office in New York, was 95% owned by a U.S. domiciliary who had lived in the United States for twenty-five years, and derived its “entire income” from shipping cargo to or from the United States); Szumlicz, 698 F.2d at 1195 (hold ing “base of operations” requirement fulfilled where record reflected that the defendants maintained offices in Florida and New York, operated cruise ships out of two ports in Florida and elsewhere in the U.S., offered special rates to customers in the Continental United States, and employed shipping agents and a doctor in Ft. Lauderdale, Florida); cf. Cooper, 575 F.3d at 1178 (holding “base of operations” requirement unmet absent “information demonstrating that the U.S. is where [the defendants’] operations occur, management decisions are made or revenues are generated”); Membreño v. Costa Crociere S.p.A., 425 F.3d 932, 937-38 (11th Cir.2005) (analyzing U.S. parent corporation’s control over foreign defendant’s day-to-day business operations, volume of business performed in the U.S., and number of days spent by entire fleet at U.S. ports).

holding "base of operations" requirement unmet absent "information demonstrating that the U.S. is where [the defendants'] operations occur, management decisions are made or revenues are generated"


analyzing U.S. parent corporation's control over foreign defendant's day-to-day business operations, volume of business performed in the U.S., and number of days spent by entire fleet at U.S. ports


hold ing "base of operations" requirement fulfilled where record reflected that the defendants maintained offices in Florida and New York, operated cruise ships out of two ports in Florida and elsewhere in the U.S., offered special rates to customers in the Continental United States, and employed shipping agents and a doctor in Ft. Lauderdale, Florida


Context: Washington contends that interest cannot compensate for actual pecuniary loss because this court has held that interest is an integral part of the tax itself.

"Penalties, unlike interest, are not normally considered integral to the tax debt itself_"

See In re Mark Anthony Const., Inc., 886 F.2d 1101, 1108 (9th Cir.1989) (“Penalties, unlike interest, are not normally considered integral to the tax debt itself_”)• This contention is meritless. The Mark Anthony court specifically held “that interest accruing on taxes due after the filing of a bankruptcy petition is to be treated as an administrative expense of the bankruptcy estate, and consequently afforded first priority status [under 11 U.S.C. § 503(b)].” Id. at 1102. Interest clearly compensates for the taxing agency’s losses relating to the “time value” of money, and nothing in Mark Anthony contradicts this notion.

"A penalty assessment is separate and distinct from the imposition of interest. Interest is assessed by the IRS to compensate for lost monetary value' while a penalty is ordinarily charged for failure to act by a certain deadline."

See also In re Brinegar, 76 B.R. 176, 178 (Bankr.D.Col.1987) (“A penalty assessment is separate and distinct from the imposition of interest. Interest is assessed by the IRS to compensate for lost monetary value' while a penalty is ordinarily charged for failure to act by a certain deadline.”).


Context: The Sightes contend that parents have a constitutionally recognized fundamental right to raise their child as they see fit. It is true that the United States Supreme Court has held that the right to raise one's children is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution.

See also Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)(recog-nizing constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education).

stating that "[w]hile this court has not attempted to define with exactness the liberty thus guaranteed [by the Fourteenth Amendment], ... [w]ithout doubt, it denotes not only merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men"

See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923)(stating that “[w]hile this court has not attempted to define with exactness the liberty thus guaranteed [by the Fourteenth Amendment], ... [w]ithout doubt, it denotes not only merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men”)- In Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977), the Court stated that it “has long recognized that freedom of personal choices in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”


Context: The court cautioned, however, that the time for filing such motions is not unlimited. The district court may, in the exercise of its discretion, "deny as untimely a non-procedural-defect, non-jurisdietional motion to remand if made at an unreasonably late stage of the federal litigation."

Id. at 1213 n. 8. Accord: Melahn v. Pennock Insurance, Inc., 965 F.2d 1497, 1502-03 (8th Cir.1992) (thirty-day limit not applicable to motion for remand based upon abstention).

Cf. In re Shell Oil Co., 932 F.2d 1518, 1522 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 914, 116 L.Ed.2d 814 (1992) (thirty-day limit applies to all motions for remand not based on subject matter jurisdiction).


Context: The proximity of Antone's interrogation hurts rather than helps the government's position. Although the case law is con-cededly anecdotal in this regard, a span of about two hours is, in this writer's estimate, insufficiently remote where, as here, that time is spent entirely in police custody.

"As best we are aware, no court has weighed the first factor against a defendant when his inculpatory statement followed illegal police conduct by only a few hours."

See, e.g., Taylor v. Alabama, 457 U.S. 687, 691, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982) (six hours in police custody insufficient to purge taint); Dunaway v. New York, 442 U.S. 200, 218-19, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (less than two hours insufficient); Brown, 422 U.S. at 604, 95 S.Ct. 2254 (same); United States v. Torres, 274 F.Supp.2d 146, 159 (D.R.I.2003) (finding that statements made at police headquarters three or four hours after illegal search were not sufficiently attenuated even though the defendant received Miranda warnings); see also United States v. George, 883 F.2d 1407, 1416 (9th Cir.1989) (“As best we are aware, no court has weighed the first factor against a defendant when his inculpatory statement followed illegal police conduct by only a few hours.”).


Context: And finally, O'Melveny & Myers said that the Court would not "adopt a court-made rule to supplement federal statutory regulation that is comprehensive and detailed; matters left unaddressed in such a scheme are presumably left subject to the disposition provided by state law." To be sure, FEHBA has a preemption provision; but even if the provision does not cover reimbursement claims (a proposition we reject in the next section of this opinion), that limitation cannot override the strong federal interests in displacing state law in our case.

"[W]e do not think that the Supreme Court in O'Melveny intended to foreclose the possibility of displacing, with a federal common law rule, a state rule of decision that would conflict with specific policies of a comprehensive federal scheme."

See Geier v. Am. Honda Motor Co., 529 U.S. 861, 869, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (express “pre-emption provision, by itself, does not foreclose (through negative implication) any possibility of implied conflict pre-emption” (brackets and internal quotation marks omitted)); Boyle, 487 U.S. at 507-08, 108 S.Ct. 2510 (“the fact that the area in question is one of unique federal concern changes what would otherwise be a.conflict that cannot produce pre-emption into one that can” (footnote omitted)); United States v. Northrop Corp., 59 F.3d 953, 961 n. 4 (9th Cir.1995) (“[W]e do not think that the Supreme Court in O’Melveny intended to foreclose the possibility of displacing, with a federal common law rule, a state rule of decision that would conflict with specific policies of a comprehensive federal scheme.”); cf. Freightliner Corp. v. Myrick, 514 U.S. 280, 288, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995) (“The fact that an express definition of the pre-emptive reach of a statute ‘implies’ — i.e., supports a reasonable inference — that Congress did not intend to pre-empt other matters does not mean that the express' clause entirely forecloses any possibility of implied pre-emption.”).

"The fact that an express definition of the pre-emptive reach of a statute 'implies' -- i.e., supports a reasonable inference -- that Congress did not intend to pre-empt other matters does not mean that the express' clause entirely forecloses any possibility of implied pre-emption."


Context: It was not intended to diminish the duty of care that a school owes its students to provide reasonably safe school premises for school-related activities, including interscholastic sports. "Personal injury from defective premises ... is not a risk that schoolchildren should, as matter of public policy, be required to run in return for the benefit of a public education."

because municipalities need no "encouragement to open their schools for parent-teacher conferences," applying recreational use statute to parent's slip and fall on ice in school walkway on parent-teacher night "would upend the balance that the Legislature intended to strike 'between encouraging public access to private land and protecting landowners from liability for injuries' "

Cf. Wilkins v. Haverhill, 468 Mass. 86, 91 n.9 (2014), quoting Ali, 441 Mass. at 236 (because municipalities need no “encouragement to open their schools for parent-teacher conferences,” applying recreational use statute to parent’s slip and fall on ice in school walkway on parent-teacher night “would upend the balance that the Legislature intended to strike ‘between encouraging public access to private land and protecting landowners from liability for injuries’ ”).

"Because of the relationship between a school and its students, the city had a duty of care to the plaintiff to provide her with reasonably safe school premises"

See Alter v. Newton, 35 Mass. App. Ct. 142, 145 (1993) (“Because of the relationship between a school and its students, the city had a duty of care to the plaintiff to provide her with reasonably safe school premises”).* ** Therefore, the recreational use statute does not alter the standard of care that a school owes its own students arising from its special relationship with its students, and would not protect the town from liability for negligence claims brought against it by students enrolled in its own public schools for injuries sustained while the students were engaged in school-related activities.


" 'if the recreational use statute were applied to injuries children suffered while on school premises as students,' the special relationship of the school to its students would be substantially impaired"

See id. at 149, quoting Bauer v. Minidoka Sch. Dist. No. 331, 116 Idaho 586, 588-589 (1989) (“ ‘if the recreational use statute were applied to injuries children suffered while on school premises as students,’ the special relationship of the school to its students would be substantially impaired”).


Context: More recent decisions have elaborated on the same basic theme.

See, e.g., Goldberg v. Kelly, 397 U.S. 254, 270, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970) (AFDC recipient “must be allowed to retain an attorney [in benefits termination hearing] if he so desires”); Mosley v. St. Louis Southwestern Railway, 634 F.2d 942, 945 (5th Cir.) (“The right to the advice and assistance of retained counsel in civil litigation is implicit in the concept of due process, and extends to administrative, as well as courtroom, proceedings.”) (citation omitted), cert. denied, 452 U.S. 906, 101 S.Ct. 3032, 69 L.Ed.2d 407 (1981); see also United Mine Workers, District 12 v. Illinois State Bar Association, 389 U.S. 217, 221-22, 88 S.Ct. 353, 355-56, 19 L.Ed.2d 426 (1967) (striking down, on first amendment grounds, state rule barring union from hiring attorney to assist its members in the assertion of their legal rights).

AFDC recipient "must be allowed to retain an attorney [in benefits termination hearing] if he so desires"


"The right to the advice and assistance of retained counsel in civil litigation is implicit in the concept of due process, and extends to administrative, as well as courtroom, proceedings."


Context: The district court properly granted summary judgment on Brown-Younger's disability discrimination claim because Brown-Younger failed to raise a genuine dispute of material fact as to whether she suffers from a disability and whether she was subjected to an adverse employment action because of her alleged disability.

"Because [Plaintiff] failed to present any evidence in opposition to Ap-pellees' motion for summary judgment, she has failed to demonstrate that there are any genuine issues of material facts in dispute."

See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.1999) (discussing the elements of a prima facie case of discrimination under the ADA); see also Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir.2007) (“Because [Plaintiff] failed to present any evidence in opposition to Ap-pellees’ motion for summary judgment, she has failed to demonstrate that there are any genuine issues of material facts in dispute.”).


Context: Accordingly, it would not be necessary to decide whether the district court clearly erred in finding, inter alia: the Trooper did not hear the van drive on the rumble strips at mile-marker 61; and, during the side-by-side instance, it was reasonable for the van to "[run] over on the fog line because the [TJrooper was riding ... beside [it].... for an extended period of time". (Accordingly, contrary to the position taken by the dissent at 2, we do not "reverse the district court based upon testimony of the [T]rooper as the district court is entitled to make the credibility determinations based upon its live assessment of the witness". As stated, regarding the third violation provided by the Trooper, the video shows the fog line was hit.

no error in disregarding witness' testimony when testimony conflicted with video evidence

United States v. White, 401 U.S. 745, 753, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (“An electronic recording will many times produce a more reliable rendition ... than will the unaided memory of a police agent.”); see also United States v. Vickers, 442 Fed.Appx. 79, 86, 87 & n. 7 (5th Cir.2011) (no error in disregarding witness’ testimony when testimony conflicted with video evidence).

"An electronic recording will many times produce a more reliable rendition ... than will the unaided memory of a police agent."


Context: We must be reluctant to assume that the voluntary departure statute was designed to remove this important safeguard for the distinct class of deportable aliens most favored by the same law. This is particularly so when the plain text of the statute reveals no such limitation.

"Congress might not have wished to impose on the alien" the difficult choice created by treating a motion to reopen as rendering the underlying order nonfinal for purposes of judicial review

See Costello v. INS, 376 U. S. 120, 127-128 (1964) (counseling long hesitation “before adopting a construction of [the statute] which would, with respect to an entire class of aliens, completely nullify a pro cedure so intrinsic a part of the legislative scheme”); see also Stone v. INS, 514 U. S. 386, 399 (1995) (“Congress might not have wished to impose on the alien” the difficult choice created by treating a motion to reopen as rendering the underlying order nonfinal for purposes of judicial review); INS v. St. Cyr, 533 U. S. 289, 320 (2001) (recognizing “ ‘the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien’ ” (quoting INS v. Cardoza-Fonseca, 480 U. S. 421, 449 (1987))).

counseling long hesitation "before adopting a construction of [the statute] which would, with respect to an entire class of aliens, completely nullify a pro cedure so intrinsic a part of the legislative scheme"


Context: As I perceive it, the majority Opinion concludes that the alleged oral contract in this case fails on both elements -- evidence of mutual assent and sufficiently definite terms. I respectfully disagree as to both elements, as I conclude that drawing all reasonable inferences in the Appellants' favor, material factual disputes exist as to each element.

requiring courts analyzing summary judgment issues to draw all reasonable inferences in the non-moving party's favor

See Martin v. Norfolk So. Ry. Co., 271 S.W.3d 76, 88 (Tenn.2008) (Koch, J., concurring) (citing Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 66 (Tenn. 2001); Mason v. Seaton, 942 S.W.2d 470, 473 (Tenn. 1997)) (stating that summary judgment is improper when “there is any dispute regarding the reasonable inferences that can be drawn from the undisputed facts”); see also Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003) (requiring courts analyzing summary judgment issues to draw all reasonable inferences in the non-moving party’s favor); Layhew v. Dixon, 527 S.W.2d 739, 742 (Tenn. 1975) (opining that summary judgment was inappropriate because of factual disputes even though the issue to be decided was an issue of law). Accordingly, summary judgment was inappropriate.

stating that summary judgment is improper when "there is any dispute regarding the reasonable inferences that can be drawn from the undisputed facts"


opining that summary judgment was inappropriate because of factual disputes even though the issue to be decided was an issue of law


Context: That is still true. And the remaining claims in Khadr's habeas petition may be litigated in the military commission.

military commission can evaluate a petitioner's challenges to charged offenses and evidence

See Hamdan v. Gates (Hamdan II), 565 F.Supp.2d 130, 137 (D.D.C.2008) (military commission can evaluate a petitioner’s challenges to charged offenses and evidence); see also Al-Odah, 593 F.Supp.2d at 59 (“The Court’s proceedings may also produce rulings on the production of discovery and/or exculpatory information that diverge from those of the military commissions.”).

"The Court's proceedings may also produce rulings on the production of discovery and/or exculpatory information that diverge from those of the military commissions."


Context: The problem here is that Jackson did name the order he wished to appeal, and that order was the 2013 Order dismissing his claims against' the prison doctors. Given Jackson's express designation of one particular order, ' the fairest inference is that Jackson did not intend to appeal the other.

"[W]here some portions of a judgment and some orders are expressly made a part of the appeal, we must infer that the appellant did not intend to appeal other unmentioned orders or judgments."

See Smith v. Barry, 985 F.2d 180, 184 (4th Cir.1993) (where “all issues triable by Jury” are designated for appeal, court may not hear appeal as to issues that are not triable by jury); see also Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1529 (11th Cir.1987) (“[W]here some portions of a judgment and some orders are expressly made a part of the appeal, we must infer that the appellant did not intend to appeal other unmentioned orders or judgments.”); Caldwell v. Moore, 968 F.2d 595, 598 (6th Cir.1992) (same).

where "all issues triable by Jury" are designated for appeal, court may not hear appeal as to issues that are not triable by jury


Context: Notwithstanding plaintiffs arguments, substantial evidence supports the ALJ's determination that plaintiffs allegations regarding his limitations were not totally credible. As set forth above, the ALJ provided numerous, valid reasons in support of the credibility determination.

"A lack of work history may indicate a lack of motivation to work rather than a lack of ability."

See Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir.2001) (“A lack of work history may indicate a lack of motivation to work rather than a lack of ability.”); Johnson v. Apfel, 240 F.3d 1145, 1147-48 (8th Cir.2001) (the ALJ’s personal observations of the claimant’s demeanor during the hearing was “completely proper in making credibility determinations; impairments controllable or amenable to treatment do not support a finding of total disability”); Rankin v. Apfel, 195 F.3d 427, 429 (8th Cir.1999) (infrequent use of prescription pain medication supports discrediting complaints); Bates v. Chater, 54 F.3d 529, 531 (8th Cir.1995) (noting no reported side effects from medications); Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir.1993) (a poor work history can lessen a claimant’s credibility); cf. O’Donnell v. Barnhart, 318 F.3d 811, 816-17 (8th Cir.2003) (“an ALJ may not discount a claimant’s allegations of disabling pain solely because the objective medical evidence does not fully support them” (emphasis added)).

"an ALJ may not discount a claimant's allegations of disabling pain solely because the objective medical evidence does not fully support them" (emphasis added


Context: One relevant inquiry in determining whether plaintiffs had reasonable cause and good faith is whether plaintiffs were involved in a tax shelter.

affirming Tax Court's finding that taxpayers had engaged in a tax shelter and had not established that they acted with reasonable care notwithstanding indirect reliance on tax professionals

See Hansen v. Comm’r (Hansen), 471 F.3d 1021, 1030-31 (9th Cir.2006) (affirming Tax Court’s finding that taxpayers had engaged in a tax shelter and had not established that they acted with reasonable care notwithstanding indirect reliance on tax professionals); United States v. Solomon (Solomon), 825 F.2d 1292, 1297 (9th Cir.1987) (finding it appropriate for the trial court to refuse to give a good faith instruction to the jury after determining that taxpayer had engaged in a tax shelter); cf. American Boat Co., LLC v. United States (American Boat), 583 F.3d 471, 481-83 (7th Cir.2009) (considering plaintiffs involvement in a tax shelter as one factor in determining the reasonable cause and good faith defense).


finding it appropriate for the trial court to refuse to give a good faith instruction to the jury after determining that taxpayer had engaged in a tax shelter


Context: However, the Seventh Circuit's decision in Jogi is in tension with other circuits that have established a precedent that the Convention does not confer a a private right of action in the criminal context. The Fifth and Sixth Circuits have held that the Convention does not create rights that are privately enforceable.

noting that "[a]bsent express language in a treaty providing for particular judicial remedies, the federal courts will not vindicate private rights.... "

See United States v. Emuegbunam, 268 F.3d 377, 390 (6th Cir.2001) (noting that “[a]bsent express language in a treaty providing for particular judicial remedies, the federal courts will not vindicate private rights.... ”); See also United States v. Jimenez-Nava, 243 F.3d 192, 196 (5th Cir.2001) (highlighting the presumption that treaties do not confer a private right of action in federal courts).


Context: Even when "physical fitness" is a selection criterion that is related to an essential function of the job, however, it "may not be used to exclude an individual with a disability if that individual could satisfy the criterion] with the provision of a reasonable accommodation." 29 C.F.R. Pt. 1630, App. SS 1630.10 (emphasis added). To the extent "physical fitness" is a separate criterion, therefore, it has the capacity to screen out disabled employees and therefore the possibility of violating the ADA's requirement of an individualized assessment of an employee's capabilities.

stating that the determination of whether one qualifies as a qualified individual with a disability "necessarily involves an individualized assessment of the individual and the relevant position"

See 29 C.F.R. § 1630.7 (“It is unlawful for a covered entity to use standards, criteria, or methods of administration, which are not job-related and consistent with business necessity, and: (a) That have the effect of discriminating on the basis of disability”); Weigel v. Target Stores, 122 F.3d 461, 466 (7th Cir.1997) (stating that the determination of whether one qualifies as a qualified individual with a disability “necessarily involves an individualized assessment of the individual and the relevant position”); see also Heise v. Genuine Parts Co., 900 F.Supp. 1137, 1154 & n. 10 (D.Minn.1995) (holding that a “must be cured” or “100% healed” policy is a per se violation of the ADA because the policy does not allow a case-by-case assessment of an individual’s ability to perform essential functions of the individual’s job, with or without accommodation); Hutchinson v. United Parcel Serv., Inc., 883 F.Supp. 379 (N.D.Iowa 1995) (same).

holding that a "must be cured" or "100% healed" policy is a per se violation of the ADA because the policy does not allow a case-by-case assessment of an individual's ability to perform essential functions of the individual's job, with or without accommodation


Context: Because of the modest social interest in prosecuting misdemeanors, and the need to be cognizant of the large risks to privacy from over-seizing cell phone information, a limited "plain view" rule provides a bright line for police and strikes the right balance.

"Of course, once the cell phone was held for evidence, other officers and investigators were entitled to conduct a further review of its contents ... without seeking a warrant"

See e.g., Flores-Lopez, 670 F.3d at 810 (approving very limited war-rantless search of phone in order to discover the phone’s own phone number); but see Murphy, 552 F.3d at 412 (“Of course, once the cell phone was held for evidence, other officers and investigators were entitled to conduct a further review of its contents ... without seeking a warrant”). Since there is no dispute that the deputies went further than looking at only that which was in plain view on the cell phones, this Court would hold that the search violated Lustig’s Fourth Amendment rights.

approving very limited war-rantless search of phone in order to discover the phone's own phone number


Context: (Dkt. No. 95 at 20.) In the SAC, Plaintiffs' allegations regarding the prerelease tests that they believe Defendant should have performed remain speculative.

finding that plaintiffs adequately alleged defendant's presale knowledge of defect based on defendant's exclusive knowledge of information that defendant actually had rather than information plaintiffs speculated defendant had

See, e.g., Wilson, 668 F.3d at 1147 (“The allegation that HP, as the manufacturer, had ‘access to the aggregate information and data regarding the risk of overheating’ is speculative and does not suggest how any tests or information could have alerted HP to the defect.”); Tietsworth v. Sears, Roebuck & Co., No. 5:09-CV-00288 JFHRL, 2009 WL 3320486, at *2 (N.D.Cal. Oct. 13, 2009) (finding conclusory the allegation that defendants were in a “superior position to know the truth about the [product]”); Oestreicher v. Alienware Corp., 544 F.Supp.2d 964, 974 (N.D.Cal.2008) (holding that plaintiffs allegation that defendant had “exclusive knowledge as the manufacturer” did not support claim that defendant was aware of a defect); cf. Falk v. Gen. Motors Corp., 496 F.Supp.2d 1088, 1096 (N.D.Cal.2007) (finding that plaintiffs adequately alleged defendant’s presale knowledge of defect based on defendant’s exclusive knowledge of information that defendant actually had rather than information plaintiffs speculated defendant had).

"The allegation that HP, as the manufacturer, had 'access to the aggregate information and data regarding the risk of overheating' is speculative and does not suggest how any tests or information could have alerted HP to the defect."


finding conclusory the allegation that defendants were in a "superior position to know the truth about the [product]"


holding that plaintiffs allegation that defendant had "exclusive knowledge as the manufacturer" did not support claim that defendant was aware of a defect


Context: . Although the trial court's instruction removing the elements of the crime from the purview of the jury was incorrect, the error was harmless. The uncontested evidence demonstrated beyond a reasonable doubt that the robberies involved the theft of jewelry, and that the jewelry stores had received their inventories from out of state. As such, no reasonable juror could have found that the jewelry stolen was not personal property or that the robberies did not impact interstate commerce.

See United States v. McLaughlin, 386 F.3d 547, 553-55 (3d Cir.2004) (holding that harmless error review applied when the trial court instructed the jury that the materiality element of counts for perjury and failure to disclose a material fact had been satisfied as a matter of law); see also Neder, 527 U.S. at 15, 119 S.Ct. 1827 ("[0]mission of an element is an error that is subject to harmless-error analysis.").


Context: This view of constructive trusts finds repetition beyond our own caselaw.

See, eg., Herts v. Klavan, 374 A.2d 871, 873 (D.C.1977) (constructive trust is a flexible remedial device used to force restitution in order to prevent unjust enrichment); see also Lee v. Wong, 57 Haw. 137, 552 P.2d 635 (1976); Dexter v. Dexter, 481 F.2d 711, 713-14 (10th Cir.1973) (before a constructive trust may arise under Kansas law, there must be a showing of either fraud, unconscionable conduct, or questionable ethics resulting in unjust benefit to the wrongdoer); Village of Wheeling v. Stavros, 89 Ill.App.3d 450, 44 Ill.Dec. 701, 411 N.E.2d 1067, 1070 (1980) (the assumption that a constructive trust may only be imposed where there is fraud or the breach of a fiduciary relationship is incorrect; a constructive trust is by no means restrict, ed to those grounds).


Context: Permissible litigation expenses under the ADA may include court filing and service of process fees and deposition fees.

examining legislative intent and finding that "litigation expenses" under ADA encompass "the same out-of-pocket expenses that are recoverable under 42 U.S.C. SS 1988"

Wilson v. Haria and Gogri Corporation, 2007 WL 1795737, *4 (E.D.Cal. June 20, 2007) (awarding litigation expenses under ADA for “filing and service of process fees, depositions, [and] courier services”); see Robins v. Scholastic Book Fairs, 928 F.Supp. 1027, 1037 (D.Or.1996) (examining legislative intent and finding that “litigation expenses” under ADA encompass “the same out-of-pocket expenses that are recoverable under 42 U.S.C. § 1988”); see also Poy v. Boutselis, 352 F.3d 479, 490 (1st Cir.2003) (quoting System Management, Inc. v. Loiselle, 154 F.Supp.2d 195, 204 (D.Mass.2001), in parenthetical “that ‘reasonable out-of-pocket expenses ineurred by the attorney and normally charged to the client’ could be awarded pursuant to statutory authority of § 1988”). Photocopying expenses are also compensable under the ADA.

awarding litigation expenses under ADA for "filing and service of process fees, depositions, [and] courier services"


Context: Courts have uniformly held voluntary murder to be a "crime involving moral turpitude." Courts have also consistently held that voluntary manslaughter is a crime involving moral turpitude.

Op., No. CV91-0320379, 1993 WL 407983, *1 (Conn.Super.Ct. Sept. 30, 1993) (murder and voluntary manslaughter are crimes involving moral turpitude, citing Drazen v. New Haven Taxicab Co., 95 Conn. 500, 507, 111 A. 861, (1920)); People v. Gutierrez, 14 Cal.App.4th 1425, 18 Cal.Rptr.2d 371, 376 (1993) (voluntary manslaughter is crime involving moral turpitude for purposes of impeaching witness); People v. Ballard, 13 Cal.App.4th 687, 16 Cal.Rptr.2d 624, 628 (1993) (parties conceded conviction for voluntary manslaughter was conviction of crime involving moral turpitude); People v. Von Villas, 11 Cal.App.4th 175, 15 Cal.Rptr.2d 112, 143 (1992) (same conclusion, but such conviction may not be useable for impeachment of witness for other reasons), cert. denied, — U.S. -, 114 S.Ct. 118, 126 L.Ed.2d 83 (1993); People v. Foster, 201 Cal.App.3d 20, 246 Cal.Rptr. 855, 857 (1988) (voluntary manslaughter is crime involving moral turpitude for purposes of witness impeachment); In re Strick, 43 Cal.3d 644, 238 Cal.Rptr. 397, 404, 738 P.2d 743, 750 (1987) (circumstances surrounding attorney’s conviction for voluntary manslaughter and assault with a deadly weapon exhibited moral turpitude as a matter of law in attorney discipline case); People v. Partner, 180 Cal.App.3d 178, 225 Cal.Rptr. 502, 506 (1986) (voluntary manslaughter is crime involving moral turpitude for purposes of impeachment of witness); People v. Parrish, 170 Cal.App.3d 336, 217 Cal.Rptr. 700, 709 (1985) (same, but stating that discussion applied only to voluntary manslaughter, despite defendant’s arguments, which'had principally involved involuntary manslaughter); but see Mitchell v. State, 298 S.C. 186, 379 S.E.2d 123, 125 (1989) (voluntary manslaughter under South Carolina law, and therefore like offense with same elements under New York law, are not crimes involving moral turpitude for purposes of impeaching a witness); In re Mostman, 47 Cal.3d 725, 254 Cal.Rptr. 286, 292-93, 765 P.2d 448, 454 (1989) (in attorney discipline case, court read its precedent as holding that voluntary manslaughter is not necessarily a crime involving moral turpitude, citing In re Strick, 43 Cal.3d 644, 238 Cal.Rptr. 397, 405, 738 P.2d 743, 750 (1987), and In re Nevill, 39 Cal.3d 729, 217 Cal.Rptr. 841, 704 P.2d 1332 (1985)); People v. Thomas, 206 Cal.App.3d 689, 254 Cal.Rptr. 15, 19 (1988) (in considering impeachment with conviction for assault with a deadly weapon, court discussed, but did not decide, question of whether “imperfect self-defense” should call into doubt whether voluntary manslaughter necessarily involves moral turpitude); State v. Morgan, 541 S.W.2d 385, 390 (Tenn.1976) (concluding that voluntary manslaughter was not “infamous crime” under Tennessee statute ■ allowing use of “infamous crimes,” to be used to impeach credibility, but not deciding whether such a crime was one involving moral turpitude, finding issue of fact to be settled on remand as to whether conviction was too remote to be used in any event).

See, e.g., Vincent v. State, 264 Ga. 234, 442 S.E.2d 748, 749 (1994) (impeachment with conviction of crime involving moral turpitude based on voluntary manslaughter conviction was proper, but exceeded proper scope when prosecutor explored facts of conviction); Harris v. Deafenbaugh, Slip.


in attorney discipline case, court read its precedent as holding that voluntary manslaughter is not necessarily a crime involving moral turpitude, citing In re Strick, 43 Cal.3d 644, 238 Cal.Rptr. 397, 405, 738 P.2d 743, 750 (1987


in considering impeachment with conviction for assault with a deadly weapon, court discussed, but did not decide, question of whether "imperfect self-defense" should call into doubt whether voluntary manslaughter necessarily involves moral turpitude


concluding that voluntary manslaughter was not "infamous crime" under Tennessee statute # allowing use of "infamous crimes," to be used to impeach credibility, but not deciding whether such a crime was one involving moral turpitude, finding issue of fact to be settled on remand as to whether conviction was too remote to be used in any event


voluntary manslaughter is crime involving moral turpitude for purposes of impeaching witness


parties conceded conviction for voluntary manslaughter was conviction of crime involving moral turpitude


same conclusion, but such conviction may not be useable for impeachment of witness for other reasons


voluntary manslaughter is crime involving moral turpitude for purposes of witness impeachment


circumstances surrounding attorney's conviction for voluntary manslaughter and assault with a deadly weapon exhibited moral turpitude as a matter of law in attorney discipline case


voluntary manslaughter is crime involving moral turpitude for purposes of impeachment of witness


same, but stating that discussion applied only to voluntary manslaughter, despite defendant's arguments, which'had principally involved involuntary manslaughter


Context: Accordingly, we hold that the procedure limned in 18 U.S.C. SS 3626(b) applies to any existing prospective relief, regardless of when that relief was first ordered.

holding that prospective relief made "in the absence of the required findings" is immediately terminable "regardless of when ordered"

See Miller, 530 U.S. at 333, 120 S.Ct. 2246 (stating that section 3626(b) applies to “existing injunctions”); Harvey v. Schoen, 245 F.3d 718, 720 (8th Cir. 2001) (holding that prospective relief made “in the absence of the required findings” is immediately terminable “regardless of when ordered”); see also Rouse, 129 F.3d at 654 (suggesting that the termination procedures set forth in section 3626(b) apply to all existing federal court orders).


Context: Furthermore, contrary to He's argument that the agency failed properly to consider a hospital report that allegedly corroborates his testimony, both the IJ and the BIA expressly acknowledged the medical evidence in their decisions and did not err in finding that this single unauthenticated document did not eliminate the various defects in He's testimony and written submissions.

finding that the weight afforded to the applicant's evidence in immigration proceedings lies largely within the discretion of the agency

See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007) (“[A] single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evidence”); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency).

"[A] single false document or a single instance of false testimony may (if attributable to the petitioner


Context: P 10 Moreover, we note that even if this claim of ineffectiveness were reviewable, we would find that Perrin has failed to establish arguable merit.

"in order to succeed on an unpreserved claim of racial discrimination in jury selection, we agree with those jurisdictions that have held that a post-conviction petitioner may not rely on a prima facie case under Batson, but must prove actual, purposeful discrimination by a preponderance of the evidence, in addition to all other requirements essential to overcome the waiver of the underlying claim."

Cf. Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74 (2004) (“in order to succeed on an unpreserved claim of racial discrimination in jury selection, we agree with those jurisdictions that have held that a post-conviction petitioner may not rely on a prima facie case under Batson, but must prove actual, purposeful discrimination by a preponderance of the evidence, in addition to all other requirements essential to overcome the waiver of the underlying claim.”).

"To establish any merit to a Batson claim, Appellant must establish a prima facie case of improper use of peremptory challenges."

See Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586 (2007) (“To establish any merit to a Batson claim, Appellant must establish a prima facie case of improper use of peremptory challenges.”).


Context: A subjective finding of bad faith is required in order to impose sanctions.

reviewing objective evidence to determine subjective good faith of attorneys on appeal of sanctions awarded under both Rule 11 and 28 U.S.C. SS 1927

See, generally, Blue, 914 F.2d at 540-43 (reviewing objective evidence to determine subjective good faith of attorneys on appeal of sanctions awarded under both Rule 11 and 28 U.S.C. § 1927).

"Like an award under the court's inherent power, section 1927 also requires a finding of counsel's bad faith as a precondition to the imposition of fees"

Chaudhry v. Gallerizzo, 174 F.3d 394, 411 n. 14 (4th Cir.1999); Brubaker, 943 F.2d at 1382 n. 25 (“Like an award under the court’s inherent power, section 1927 also requires a finding of counsel’s bad faith as a precondition to the imposition of fees”). However, such finding must be based on objective evidence as well as the attorney’s representations about his own intentions.


Context: (Internal quotation marks omitted.) This court has construed the term to require less than specific intent to violate the law.

"conclud[ing] that a wilful violation of [General Statutes] SS 19a-583 requires only a knowing disclosure of confidential human immunodeficiency virus [HIV] related information," not evil intent

See, e.g., Doe v. Marselle, 236 Conn. 845, 847, 859-60, 675 A.2d 835 (1996) (“conclud[ing] that a wilful violation of [General Statutes] § 19a-583 requires only a knowing disclosure of confidential human immunodeficiency virus [HIV] related information,” not evil intent); State v. Dennis, 150 Conn. 245, 246, 250-51, 188 A.2d 65 (1963) (holding that where defendant charged with “wilfully or unlawfully” committing “certain acts likely to impair the morals of a minor child, contrary to [General Statutes] § 53-21 . . . [s]pecific intent is not an element of the crime defined”); see also United States v. Schwartz, 464 F.2d 499, 509 (2d Cir.), cert. denied, 409 U.S. 1009, 93 S. Ct. 443, 34 L. Ed. 2d 302 (1972) (wilful violation of federal securities law requires only wilfulness to commit act, rather than specific intent to knowingly violate law); United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir. 1970), cert. denied, 401 U.S. 955, 91 S. Ct. 974, 28 L. Ed. 2d 238 (1971) (defendant may be convicted of wilfully violating securities regulation of which he is unaware); United States v. Hill, 298 F. Sup. 1221, 1234 (D. Conn. 1969) (finding of specific intent not required for criminal violation of federal securities law).


defendant may be convicted of wilfully violating securities regulation of which he is unaware


holding that where defendant charged with "wilfully or unlawfully" committing "certain acts likely to impair the morals of a minor child, contrary to [General Statutes] SS 53-21 . . . [s]pecific intent is not an element of the crime defined"


Context: An allowed claim entitles the claimant to receive payments under a confirmed Chapter 13 plan but has no bearing on the validity of a mortgagee's lien. Indeed, a secured creditor who is not seeking a distribution "is not required to file a proof of claim and may choose to ignore the bankruptcy proceeding and look to its lien for satisfaction of the debt."

"[OJnly an unsecured creditor is required to file a proof of claim for the claim to be allowed."

In re Dumain, 492 B.R. 140, 143 (Bankr.S.D.N.Y.2013) (quoting In re Hogan, 346 B.R. 715, 719 n. 7 (Bankr. N.D.Tex.2006)) (internal quotation marks and alteration omitted); see Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) (liens “pass through bankruptcy unaffected”); In re Cromer, 185 B.R. 1, 3 (Bankr.N.D.N.Y. 1994) (“[T]he failure of a secured creditor to file a proof of claim ... leaves unaffected the lien of that secured creditor.”); see also Christo v. Wells Fargo Bank (In re Christo), No. 12-30083, 2012 WL 3839238, at *6 (Bankr.N.D.Ohio Sept. 4, 2012) (“[OJnly an unsecured creditor is required to file a proof of claim for the claim to be allowed.”). “This lack of connection between avoiding a creditor’s lien and the filing of a proof of claim is part of the structure of the Bankruptcy Code and Rules.”

"[T]he failure of a secured creditor to file a proof of claim ... leaves unaffected the lien of that secured creditor."


Context: As to the substantive due process claim, the presence of a valid Second Amendment claim would preclude the Court from engaging in a substantive due process analysis. Likewise, the Court would compress Hightower's equal protection claim into her Second Amendment claim.

stating that "we see little basis or justification for applying equal protection analysis" in a situation where an equal protection claims substantially overlaps with a stronger Bill of Rights claim

See Rosenfeld v. Egy, 346 F.3d 11, 15 (1st Cir.2003) (stating that “we see little basis or justification for applying equal protection analysis” in a situation where an equal protection claims substantially overlaps with a stronger Bill of Rights claim); see also Nestor Colón Medina & Sucesores, 964 F.2d at 44-45 (same); Nordyke v. King, 644 F.3d 776, 794 (9th Cir.2011) (rejecting an equal protection claim brought in conjunction with Second Amendment concerns by noting that “although the right to keep and bear arms is a fundamental right, that right is more appropriately analyzed under the Second Amendment”) (citation omitted).

rejecting an equal protection claim brought in conjunction with Second Amendment concerns by noting that "although the right to keep and bear arms is a fundamental right, that right is more appropriately analyzed under the Second Amendment"


Context: A broader, rather than narrower, reading of SS 104 is consistent with the LMRDA's democratic purposes. The Court is well aware that the democratic purposes of the LMRDA do not mandate broad interpretations of SS 104 which go beyond its terms.

LMRDA's general objectives of democracy do not create rights beyond its specific terms

See Tanzillo, 769 F.2d at 148 (restricting right to copy of agreement under § 104 to current employees and members); see also generally Carrothers v. Presser, 818 F.2d 926, 929, 934 (D.C.Cir.1987) (LMRDA’s general objectives of democracy do not create rights beyond its specific terms).

restricting right to copy of agreement under SS 104 to current employees and members


Context: Even so, our confidence in the outcome of the penalty phase is not undermined by counsel's error. We have found similar comments either not improper or harmless under the circumstances.

See, e.g., Salazar v. State, 991 So.2d 364, 377 (Fla.2008) (finding prosecutor’s use of the word “terrorizing” in reference to the burglary aggravating offense was not improper); Bonifay v. State, 680 So.2d 413, 418 (Fla.1996) (finding prosecutor’s use of the word “exterminate” in the context of the case improper but harmless); cf. Brooks v. State, 762 So.2d 879, 905 (Fla.2000) (reversing for a new penalty phase for cumulative error where prosecutor made repeated comments about the violent and vicious nature of the defendant as well as numerous other improper comments).

finding prosecutor's use of the word "terrorizing" in reference to the burglary aggravating offense was not improper


finding prosecutor's use of the word "exterminate" in the context of the case improper but harmless


Context: Other state courts have also applied Luce to impeachment by a statement obtained in violation of a defendant's Miranda rights.

ruling that the defendant had to testify at trial to preserve for review his challenge to the trial court's in limine ruling that allowed into evidence his post-arrest silence

See, e.g., Wagner v. State, 347 P.3d 109, 109-10 (Alaska 2015) (declining to review the defendant’s claim that the trial court erred by allowing the State to impeach him with a statement obtained in violation of Miranda because, without his testimony, “it is impossible to tell whether the court’s ruling affected [his] decision not to testify, whether the prosecution would have impeached him with his police statement, or whether this evidence would have affected the jury”); Jordan v. State, 591 A.2d 875, 876-78 (Md. 1991) (concluding that the appellate court could not review the defendant’s constitutional argument that the trial court erred by allowing the State to use his allegedly involuntary confession to impeach him because he elected not to testily); cf. People v. Boyd, 682 N.W.2d 459, 459-60 (Mich. 2004) (ruling that the defendant had to testify at trial to preserve for review his challenge to the trial court’s in limine ruling that allowed into evidence his post-arrest silence).

declining to review the defendant's claim that the trial court erred by allowing the State to impeach him with a statement obtained in violation of Miranda because, without his testimony, "it is impossible to tell whether the court's ruling affected [his] decision not to testify, whether the prosecution would have impeached him with his police statement, or whether this evidence would have affected the jury"


concluding that when a defendant elects not to testify, but has made an adequate offer of proof as to the testimony he would have given, he may challenge on appeal the trial court's decision to allow impeachment with evidence allegedly obtained in violation of his constitutional rights

But see, e.g., State v. Brunelle, 534 A.2d 198, 199-200, 204 (Vt. 1987) (ruling that the defendant could challenge on appeal the trial court’s decision allowing the State to impeach him with evidence that had been obtained in violation of his Miranda, rights, even though he neither testified nor made an offer of proof at trial); cf. State v. Cherry, 83 P.3d 123, 125-26 (Idaho Ct. App. 2003) (concluding that when a defendant elects not to testify, but has made an adequate offer of proof as to the testimony he would have given, he may challenge on appeal the trial court’s decision to allow impeachment with evidence allegedly obtained in violation of his constitutional rights).


concluding that the appellate court could not review the defendant's constitutional argument that the trial court erred by allowing the State to use his allegedly involuntary confession to impeach him because he elected not to testily


Context: Defendant's commercial activity on its Web site constitutes a small portion of its revenue -- no more than 0.11% of RCGA's gross sales. Ross Decl. at P 20. However, "the critical inquiry in determining whether there was a purposeful availment of the forum state is the quality, nor merely the quantity, of the contacts."

finding purposeful availment is shown if the defendant transacted business with residents of the forum through the defendant's Web site

Stomp, Inc. v. NeatO LLC, 61 F.Supp.2d 1074, 1078 (C.D.Cal.1999) (holding that “by advertising and offering its products for sale via the Internet,” the defendant purposely availed itself of the forum state, even though only two sales had been consummated with forum residents, both of which were to plaintiffs president and his friend after the motion to dismiss the complaint had been made); see also Park Inns International v. Pacific Plaza Hotels, 5 F.Supp.2d 762, 763 (D.Ariz.1998) (finding purposeful availment is shown if the defendant transacted business with residents of the forum through the defendant’s Web site); but see S. Morantz, Inc. v. Hang & Shine Ultrasonics, Inc., 79 F.Supp.2d 537, 542-43 (E.D.Pa.1999) (finding defendant’s commercial sale of only five products to forum residents via its Web site to be “the kind of fortuitous, random, and attenuated contacts that the Supreme Court has held insufficient to warrant the exercise of jurisdiction”) (internal quotations omitted).

holding that "by advertising and offering its products for sale via the Internet," the defendant purposely availed itself of the forum state, even though only two sales had been consummated with forum residents, both of which were to plaintiffs president and his friend after the motion to dismiss the complaint had been made


finding defendant's commercial sale of only five products to forum residents via its Web site to be "the kind of fortuitous, random, and attenuated contacts that the Supreme Court has held insufficient to warrant the exercise of jurisdiction"


Context: By contrast, in Powell and Orwig, no definitive homestead selection had ever been declared by the original owner. Consequently, the owner's uncertain intention with respect to this fundamental prerequisite was the issue.

noting original owner's contradictory statements regarding past homestead intentions were "of doubtful value" to resolution of dispute between grantees

See Powell, 116 P.2d at 890 (“The question therefore is whether the deceased had selected the [property] as his homestead.”); see also Orwig, 233 P. at 1086 (noting original owner’s contradictory statements regarding past homestead intentions were “of doubtful value” to resolution of dispute between grantees).

"The question therefore is whether the deceased had selected the [property] as his homestead."


Context: Nonetheless, there are instances in which ERISA still controls even where misconduct takes place after plan termination. See, e.g., Horn v. Berdon, Inc. Defined Ben.

indicating that, even after plan termination, a plan could be " 'viewed as continuing to exist for the purpose of distributing the equitably vested benefits' "

Pension Plan, 938 F.2d 125 (9th Cir.1991) (applying ERISA to a claim for breach of fiduciary duty where, after plan terminated, employer found that there was a surplus — ie., plan assets exceeded liabilities— and distributed surplus to corporation rather than beneficiaries); see also Vaughn v. Bay Environmental Management, Inc., 567 F.3d 1021, 1027 (9th Cir. 2009) (indicating that, even after plan termination, a plan could be “ ‘viewed as continuing to exist for the purpose of distributing the equitably vested benefits’ ”); cf. Gallagher v. Life Ins. Co. of N. Am., No. C 07-05224 SBA, 2008 WL 753733, at *12, 2008 U.S. Dist. LEXIS 119693, at *36-37 (N.D.Cal.

applying ERISA to a claim for breach of fiduciary duty where, after plan terminated, employer found that there was a surplus -- ie., plan assets exceeded liabilities-- and distributed surplus to corporation rather than beneficiaries


Context: As stated earlier in this decision, the SIPA definition of a customer should be construed narrowly.

Corp., 295 F.3d at 1108, n. 7 (customer status under SIPA requires a claimant to prove intent to invest in a security, as that term is defined by SIPA). Such a narrow reading is further supported by the fact that research “guidance” may be used as a basis not to purchase a security at all or to make an investment that does not qualify for SIPA protection.

"[A] deposit of funds with only the vaguest instructions to make 'stock market investments' would not qualify as a deposit 'for the purpose of purchasing securities.' "

See Old Naples Secs., 223 F.3d at 1305 (“[A] deposit of funds with only the vaguest instructions to make ‘stock market investments’ would not qualify as a deposit ‘for the purpose of purchasing securities.’ ”) (citation omitted).


Context: It was an investigation that GuideOne was entitled to conduct but was also one that GuideOne has not even attempted to show netted a single additional detail relating to the congregation's lease of Adas Terrace to Deli Plus. GuideOne's investigation into the Heschel incident cannot excuse its failure to promptly act after learning the essential details of the Deli Plus lease arrangement, and which were completely unrelated to Heschel's on-premises injury and subsequent death.

insurer's attempt to justify its delay on the ground that it had to investigate the incident further is "an insufficient excuse as a matter of law, as that investigation was unrelated to the reason for the disclaimer based on late notice and could have been asserted at any time"

See McGinnis v. Mandracchia, 291 A.D.2d 484, 485, 739 N.Y.S.2d 160, 162 (2d Dep’t 2002) (insurer’s attempt to justify its delay on the ground that it had to investigate the incident further is “an insufficient excuse as a matter of law, as that investigation was unrelated to the reason for the disclaimer based on late notice and could have been asserted at any time”); see also City of N.Y. v. Northern Ins. Co. of N.Y., 284 A.D.2d 291, 292, 725 NY.S.2d 374, 375 (2d Dep’t 2001) (noting that an insurer’s defense that it required additional time to investigate was “insufficient excuse as a matter of law, as such an investigation was unrelated to the reason for the disclaimer and could have been asserted at any time”).

noting that an insurer's defense that it required additional time to investigate was "insufficient excuse as a matter of law, as such an investigation was unrelated to the reason for the disclaimer and could have been asserted at any time"


Context: Here, we conclude the requisite articulable reasonable suspicion existed to stop defendant's car as a result of the officer's observations that (a) the car was the same color and make, and it had the same peculiar tire feature, as the car used by suspects in a homicide; and (b) the car had a cracked windshield and an item dangling from the rearview mirror.

See People v. Melanson, 937 P.2d 826, 834 (Colo.App.1996)(reasonable suspicion from tip that a possible crime was being committed by person driving white Cadillac with out-of-state plates); see also People v. Jackson, 948 P.2d 506, 508 (Colo.1997)(reasonable suspicion from cracked taillight and windshield and missing headlight); People v. Altman, 938 P.2d 142, 145 (Colo.1997)(reasonable suspicion from cracked windshield and obstructed license plate).


Context: P 13 Opinion testimony by an expert witness that encompasses an ultimate issue is generally admissible when it alludes to an inference that the trier of fact should make, or uses a term that has both a lay factual meaning and legal meaning, and it is clear that the witness is using only the factual term. Additionally, such opinion testimony is admissible when helpful to the jury under Rule 702.

See United States v. Allen, 10 F.3d 405, 414-15 (7th Cir.1993) (relationship between opinion and ultimate issue is important in determining helpfulness of testimony); see also, United States v. Perkins, 470 F.3d 150, 159-60 (4th Cir.2006) (civil action alleging excessive force, testimony regarding defendant’s reasonableness of use of force did not impermissibly state a legal conclusion because it did not address objective reasonableness; instead the testimony focused on the witness’ personal assessments of the defendant’s conduct); Maffei v. N. Ins. Co. of N.Y., 12 F.3d 892, 897 (9th Cir.1993) (testimony properly allowed because opinions were helpful to determine whether defendant was involved in the conspiracy).