Context: However, based on the justifications offered by defendants in the classified documents reviewed by this Court, it cannot conclude that defendants' explanation for its change in policy is a post hoc rationalization.

"National-security policy is the prerogative of the Congress and President."

Ziglar v. Abbasi, — U.S. —, 137 S.Ct. 1843, 1861, 198 L.Ed.2d 290 (2017) (“National-security policy is the prerogative of the Congress and President.”); Schneider v. Kissinger, 412 F.3d 190, 195 (D.C. Cir. 2005); see also Adams v. Vance, 570 F.2d 950, 954 (D.C. Cir. 1978) (noting that application of injunctive-relief standards changes where core concerns of the executive branch are at stake).


Context: Under defendant's reasoning, inferences of guilt derived from the invocation of a witness's Fifth Amendment privilege are permissible only insofar as they lead to a defendant's acquittal. Such a lopsided rule would contravene the well-settled principle that both the government, as well as the defendant, are entitled to a fair trial.

observing that "existing legal precedent defines the Sixth Amendment right to a fair and impartial trial as a right that inures not only to the sole benefit of a defendant, but rather one that inures equally to the state as the representative of the people."

United States v. Ford, 830 F.2d 596, 603 (6th Cir.1987) (Krupansky, J., concurring) (observing that “existing legal precedent defines the Sixth Amendment right to a fair and impartial trial as a right that inures not only to the sole benefit of a defendant, but rather one that inures equally to the state as the representative of the people.”); see also United States v. Tijerina, 412 F.2d 661, 666 (10th Cir.1969) (noting “the concept of a fair trial applies both to the prosecution and the defense”).

noting "the concept of a fair trial applies both to the prosecution and the defense"


Context: But the reference was inadvertent in the sense that the pros ecutor was carried away momentarily m a context in which the fact of a prior conviction was common ground among the parties and to which Scala opened the door by calling Barket and seeking to establish that Barket told him not to file tax returns. In any case, the Court finds that the repeated curative instructions were more than adequate to avoid any prejudice.

no reversal of conviction based on witnesses' allusions to criminal conduct not charged in the indictment where district court struck the testimony and instructed the jury to disregard it

See, e.g., Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (jury presumed to follow instruction to disregard inadmissible evidence absent “overwhelming probability” of inability to do so) (citing Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)); accord United States v. Castano, 999 F.2d 615, 618 (2d Cir.1993); see also United States v. Minicone, 960 F.2d 1099, 1109 (2d Cir.1992) (no reversal of conviction based on witnesses’ allusions to criminal conduct not charged in the indictment where district court struck the testimony and instructed the jury to disregard it).

jury presumed to follow instruction to disregard inadmissible evidence absent "overwhelming probability" of inability to do so


Context: In securities fraud cases, despite the particularity required by Fed.R.Civ.P. 9(b) for averments constituting the circumstances of the fraud asserted and the scienter requirement Hochfelder propounded, some courts permitted generalized pleadings or relaxed specificity of the requisite fraudulent intent to survive motions to dismiss, relying for authority on the language of Rule 9(b) itself, which provides that "malice, intent, knowledge, and other condition of mind, may be averred generally".

See In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547 (9th Cir.1994) (en banc) (holding that plaintiff may satisfy the state of mind pleading requirement “simply by saying that scien-ter existed.”); see also Cosmas, 886 F.2d at 12 (noting that under Rule 9(b) a complaint need only aver intent generally, although it nonetheless must allege facts that give rise to a strong inference of fraudulent intent); Goldman, 754 F.2d at 1070 (“Thus, great specificity was not required with respect to the allegations of knowledge and scienter.”)

holding that plaintiff may satisfy the state of mind pleading requirement "simply by saying that scien-ter existed."


"Thus, great specificity was not required with respect to the allegations of knowledge and scienter."


Context: The pleading standard a defendant must meet to demonstrate he is entitled to an Atkins hearing is a low one.

finding Lousiana standard that a defendant must raise a "reasonable doubt" as to their intellectual disability before being entitled to an Atkins hearing consistent with Atkins

See Brumfield v. Cain, — U.S. -, 135 S. Ct. 2269, 192 L.Ed.2d 356 (2015) (finding Lousiana standard that a defendant must raise a “reasonable doubt” as to their intellectual disability before being entitled to an Atkins hearing consistent with Atkins); Simpson, 490 F.3d at 1035. “There is no question the allegations in [Davis’] petition are as adequate as Simpson’s pleading threshold where the petitioner ‘alleged that he is mentally retarded as Atkins defines that condition’ in order to obtain an evidentiary hearing on his mental retardation claim.”

finding that the defendant's petition "satisfied the pleading standard of Simpson and Sasser I, by expressly incorporating" evidence of trouble in school, an IQ score of 70, difficulty with visual motor and expressive and receptive language skills, and diagnoses of ADHD and antisocial personality disorder

Sasser I, 553 F.3d at 1126 (quoting Simpson, 490 F.3d at 1035); see also Jackson v. Norris, 615 F.3d 959, 963-64 (8th Cir. 2010) (finding that the defendant’s petition “satisfied the pleading standard of Simpson and Sasser I, by expressly incorporating” evidence of trouble in school, an IQ score of 70, difficulty with visual motor and expressive and receptive language skills, and diagnoses of ADHD and antisocial personality disorder).


Context: If plaintiffs prevail on their theory that RSC was solely liable for the Davidson accident, they cannot, as a matter of law, prove the first element of indemnity, that they discharged a legal obligation owed to the Davidsons.

common law indemnity claim "cannot be sustained if the [party seeking indemnity] could not have been hable to the [injured] party for the legal obligation satisfied"

See Mayorga, 2007 WL 204017 at *9 (common law indemnity claim “cannot be sustained if the [party seeking indemnity] could not have been hable to the [injured] party for the legal obligation satisfied”); see also Irwin Yacht Sales Inc. v. Carver Boat Corp., 98 Or.App. 195, 198, 778 P.2d 982 (1989)(in-demnitee not entitled to indemnity unless it is liable to the injured third party); Smith v. Urich, 151 Or.App. 40, 947 P.2d 1125 (1997)(indemnity claim failed for lack of evidence that plaintiff was negligent or caused third party’s injuries).


indemnity claim failed for lack of evidence that plaintiff was negligent or caused third party's injuries


Context: We do not find Looper has suffered an injury; therefore, we find Looper is not aggrieved. We analogize the order in this case to an order denying a motion to suppress evidence, which is an interlocutory order that is not immediately appealable.

See State v. Hubbard, 277 S.C. 568, 569, 290 S.E.2d 817, 817 (1982) (finding the appeal from the denial of a motion to suppress evidence is interlocutory); see also State v. Isaac, 405 S.C. 177, 184, 747 S.E.2d 677, 680 (2013) (analogizing the denial of a request for immunity under the Protection of Persons and Property Act to the denial of a motion to dismiss a criminal case on the ground of double jeopardy and finding it not immediately appealable).


Context: In Ray, the court held that that a probation officer was not absolutely immune for damages resulting from an arrest caused by a false parole violator's warrant. Similarly, courts have found that probation officers are not entitled to absolute immunity in investigating and apprehending probation violators.

See also Crooker v. Metallo, 5 F.3d 583, 585 (1st Cir.1993) (parole officer received qualified immunity with respect to claim of unreasonable search); Galvan v. Garmon, 710 F.2d 214, 215 (5th Cir.1983) (per curiam) (state probation officer not entitled to absolute immunity for causing mistaken arrest of probationer), cert. denied, 466 U.S. 949, 104 S.Ct. 2150, 80 L.Ed.2d 536 (1984); Wolfel v. Sanborn, 691 F.2d 270, 271-72 (6th Cir.1982) (per curiam) (parole officers entitled to qualified immunity with respect to arrest of parolee), cert. denied, 459 U.S. 1115, 103 S.Ct. 751, 74 L.Ed.2d 969 (1983).

See, e.g., Johnson, 815 F.2d at 8 (stating in dictum that parole officers not entitled to absolute immunity when functioning as arresting officers).


state probation officer not entitled to absolute immunity for causing mistaken arrest of probationer


parole officers entitled to qualified immunity with respect to arrest of parolee


Context: We first reject any suggestion that trial counsel's failure to produce evidence to which counsel alludes in an opening statement constitutes, in and of itself, ineffective assistance of counsel in all cases.

defense counsel's "failure to call a ballistics expert, as promised, was clearly a decision forced upon him by events over which he had no control," and thus not per se ineffective assistance

See also Commonwealth v. Nardone, 406 Mass. 123, 127 (1989) (defense counsel’s “failure to call a ballistics expert, as promised, was clearly a decision forced upon him by events over which he had no control,” and thus not per se ineffective assistance).

See, e.g., Turner v. Williams, 35 F.3d 872 (4th Cir.), cert, denied, 514 U.S. 1017 (1994) (not ineffective to fail to present promised evidence if decision motivated by tactical considerations), overruled on other grounds, by O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996), aff’d, 521 U.S. 151 (1997).


Context: But regardless of what Hanover hoped to eventually receive, what it actually received was only a conditional promise to pay ESA money at some point in the future. Section 547, however, requires that the debtor's receipt of money, goods, services, new credit or property release be substantially contemporaneous with the debtor's payment.

discussing "new value" exception to absolute priority rule and stating that "[u]nlike 'money or money's worth,' a promise of future services cannot be exchanged in any market for something of value to the creditors today "

See In re Teligent, Inc., 315 B.R. 308, 317 (Bankr. S.D.N.Y.2004) (explaining that “[a] promise of future services ... does not constitute ‘new value.’”); cf. Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 204, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988) (discussing “new value” exception to absolute priority rule and stating that “[u]nlike ‘money or money’s worth,’ a promise of future services cannot be exchanged in any market for something of value to the creditors today ”).

explaining that "[a] promise of future services ... does not constitute 'new value.'"


Context: Even if the evaluation criteria listed in the RFP were deficient in some unexplained respect, Gunderson has "failed to demonstrate that such error prejudiced [his] proposal in comparison to others, since each proposal received identical treatment."

holding agency's failure to assign specific grade to earthquake risk did not deprive evaluation of proposals of reasonable basis

King v. Alaska State Hous. Auth., 512 P.2d 887, 894 (Alaska 1973) (holding agency’s failure to assign specific grade to earthquake risk did not deprive evaluation of proposals of reasonable basis); see also Fairbanks N. Star Borough Sch. Dist. v. Bowers Office Prods., Inc., 851 P.2d 56, 59 n. 3 (Alaska 1993) (finding consideration of factors only implicitly included in RFP justified).


Context: Courts require a sufficient basis for denial of leave to amend because the purpose of pleading under the Federal Rules of Civil Procedure is "to facilitate a proper decision on the merits," not to set the stage for "a game of skill in which one misstep by counsel may be decisive to the outcome."

noting that the non-movant "failed to show prejudice from the district court's action in allowing the [movant's] motion to amend"

Harris, 126 F.3d at 343. Under Rule 15(a), the nonmovant generally carries the burden in persuading the court to deny leave to amend. Cf. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 n. 2 (5th Cir.1981) (endorsing exceptions to the general rule that the burden of persuasion rests with the non-movant in the Rule 15(a) context); see also Gudavich v. District of Columbia, 22 Fed.Appx. 17, 18 (D.C,Cir.2001) (noting that the non-movant “failed to show prejudice from the district court’s action in allowing the [movant’s] motion to amend”) (unpublished decision).


Context: The district court held that "the Secretary's refusal to entertain any applications for a permit during the past six years because Congress has precluded its use of funds to investigate or act upon such applications is unquestionably a de facto denial."

holding that persons seeking restoration of federal firearms privileges "need not exhaust administrative remedies to invoke the judicial review provision of section 925(c

See Bean v. United States, 89 F.Supp.2d 828, 837 (E.D.Tex.2000) (“[T]his Court holds that inaction by the ATF constitutes a defacto denial of an application such that a United States district court may consider a petition for judicial review of the denial.”); cf. Rice v. United States, Dep’t of Alcohol, Tobacco & Firearms, 68 F.3d 702, 709 (3d Cir.1995) (holding that persons seeking restoration of federal firearms privileges “need not exhaust administrative remedies to invoke the judicial review provision of section 925(c)”); Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1099 (D.C.Cir.1970) (“[W]hen administrative inaction has precisely the same impact on the rights of the parties as denial of relief, an agency cannot preclude judicial review by casting its decision in the form of inaction rather than in the form of an order denying relief.”).

"[T]his Court holds that inaction by the ATF constitutes a defacto denial of an application such that a United States district court may consider a petition for judicial review of the denial."


"[W]hen administrative inaction has precisely the same impact on the rights of the parties as denial of relief, an agency cannot preclude judicial review by casting its decision in the form of inaction rather than in the form of an order denying relief."


Context: Several of our sister circuits, as well as a district court in our own circuit, have however, "addressed the issue of whether the government's conduct in a case involving alien witnesses who subsequently left the United States was reasonable and in good faith."

surveying cases from the First, Fourth, Fifth, Eighth, and Tenth Circuits, before concluding that the government has a duty to make reasonable and good faith efforts to procure the witness's attendance at trial before the witness leaves the United States

See, e.g., Wilson, 36 F.Supp.2d at 1181-82 (surveying cases from the First, Fourth, Fifth, Eighth, and Tenth Circuits, before concluding that the government has a duty to make reasonable and good faith efforts to procure the witness’s attendance at trial before the witness leaves the United States); see also Mann, 590 F.2d at 368 (holding that though the government acted reasonably and in good faith in trying to convince a witness to return to testify for trial, the witness was not “unavailable” under Rule 804(a)(5) because the government made the witness’s departure from the country possible); United States v. Guadian-Salazar, 824 F.2d 344, 346-47 (5th Cir.1987) (per curiam) (both the defense and the government agreed that the government had not shown that the witnesses were “unavailable” where the government took videotaped depositions of the witnesses, transported them to the border, served them with subpoenas, and notified them that they were to appear at the border on a specified date to be taken to court and serve as witnesses at trial); Aguilar-Ayala v. Ruiz, 973 F.2d 411, 419 (5th Cir.1992) (noting that it is not unreasonable for the government to detain alien witnesses).

holding that though the government acted reasonably and in good faith in trying to convince a witness to return to testify for trial, the witness was not "unavailable" under Rule 804(a)(5) because the government made the witness's departure from the country possible


both the defense and the government agreed that the government had not shown that the witnesses were "unavailable" where the government took videotaped depositions of the witnesses, transported them to the border, served them with subpoenas, and notified them that they were to appear at the border on a specified date to be taken to court and serve as witnesses at trial


noting that it is not unreasonable for the government to detain alien witnesses


Context: And even when a plaintiff makes this showing, a law enforcement officer may still be entitled to qualified immunity if it would not be apparent to a reasonable officer that he was violating the plaintiffs clearly established rights.

O’Malley v. City of Flint, 652 F.3d 662, 671-672 (6th Cir.2011) (granting qualified immunity because not clear to reasonable officer that failure to loosen handcuffs constituted excessive force where detainee with no obvious physical injury complained of tightness, but did not request handcuffs be loosened); Lyons, 417 F.3d at 575-576 (finding no excessive force where plaintiff offered no evidence that he told officers handcuffs were too tight and had no obvious physical injuries); Burchett v. Kiefer, 310 F.3d 937, 944-45 (6th Cir.2002) (granting qualified immunity because officer immediately removed handcuffs once plaintiff, who had been tightly handcuffed for three hours causing swelling and bruising, complained); cf. Martin, 106 F.3d at 1313 (denying qualified immunity because officers handcuffed plaintiff so tightly his hands became numb and swollen, then failed to respond to his complaints of pain until 35 minutes later).


finding no excessive force where plaintiff offered no evidence that he told officers handcuffs were too tight and had no obvious physical injuries


granting qualified immunity because officer immediately removed handcuffs once plaintiff, who had been tightly handcuffed for three hours causing swelling and bruising, complained


Context: $15 Because the instruction could have affected the outcome of the trial, the trial court's error was not harmless.

See Lifson v. City of Syracuse, 17 N.Y.3d 492, 934 N.Y.S.2d 38, 958 N.E.2d 72, 75 (2011) (concluding that error in giving sudden emer-geney instruction was not harmless where application of the instruction to the facts presented could have affected the outcome of the trial); see also Kendrick, 252 P.3d at 1067 (reversing and remanding for a new trial where trial court erred in giving sudden emergency instruction).


Context: Again, even if the ruling admitting this evidence was an abuse of discretion, the admission of this evidence under the "co-conspirator hearsay" exception was also harmless.

" 'Even where we find that the district court has abused its discretion with respect to an evidentiary ruling, we will not reverse the conviction if the error was harmless.' "

See Mack, 343 F.3d at 935 (“ ‘Even where we find that the district court has abused its discretion with respect to an evidentiary ruling, we will not reverse the conviction if the error was harmless.’ ”) (quoting Oleson, 310 F.3d at 1091); see also United States v. Womack, 191 F.3d 879, 883 (8th Cir.1999) (admission of evidence pursuant to the “co-conspirator hearsay” exception is reviewed for abuse of discretion). This is so, because, in light of the entire record, Johnson’s substantial rights were unaffected, and the error did not influence or had at most only a slight influence on the verdicts.

admission of evidence pursuant to the "co-conspirator hearsay" exception is reviewed for abuse of discretion


Context: In order for Umani to defeat defendants' claim for qualified immunity, he must first establish that a constitutional right was violated. Since we have concluded that Umani has failed to allege facts or to provide evidence sufficient to establish that a race-based or class-of-one equal protection violation was committed by the defendants, his conspiracy claim under SS 1985(3) also fails.

a civil conspiracy under SS 1983 requires proof of an overt act in furtherance of the conspiracy that caused injury to the plaintiff

See Wiley v. Oberlin Police Dep’t, 330 Fed.Appx. 524, 530 (6th Cir.2009)(where plaintiff failed to show an underlying constitutional violation that injured her, plaintiff cannot prevail on her conspiracy claim); Thompson v. City of Memphis, 86 Fed.Appx. 96, 103 (6th Cir.2004) (where plaintiff failed to show that defendants discriminated against him or committed an equal protection violation, he also failed to prove a conspiracy claim under § 1985(3)); cf. Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir.1985)(a civil conspiracy under § 1983 requires proof of an overt act in furtherance of the conspiracy that caused injury to the plaintiff).


where plaintiff failed to show that defendants discriminated against him or committed an equal protection violation, he also failed to prove a conspiracy claim under SS 1985(3


Context: Plaintiff argues that Hardwick is inapposite because it dealt with a substantive due process analysis whereas his claim is based on the equal protection clause. For purposes of qualified immunity, however, we need not decide how Hardwick affects equal protection claims; we need only note that courts have reached differing conclusions on the issue.

"If homosexual conduct may constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes."

See, e.g., Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir.1989) (“If homosexual conduct may constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes.”), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989) (“After Hardwick it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm.”), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990); Padula v. Webster, 822 F.2d 97, 103 (D.C.Cir.1987) (“There can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.”).

But see Pruitt v. Cheney, 963 F.2d 1160, 1166 n. 5 (9th Cir.1992) (reviewing status-based discrimination against homosexuals under an active rational basis review, distinguishing Hard-wick as conduct based discrimination); High Tech Gays v. Defense Indust.


"After Hardwick it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm."


"There can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal."


Context: We also noted that "the accident took place in an area under the complete control of the commanding officer of the air station."

medical treatment at a military hospital for an injury incurred from a motorcycle accident off-base is determined to be "incident to service" because military medical treatment is a benefit of military status

See also Veillette v. United States, 615 F.2d 505, 507 (9th Cir.1980) (medical treatment at a military hospital for an injury incurred from a motorcycle accident off-base is determined to be “incident to service” because military medical treatment is a benefit of military status); Accord Woodside v. United States, 606 F.2d 134, 136 (6th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980) (injury occurred at air force sponsored flying club); Chambers v. United States, 357 F.2d 224, 229 (8th Cir.1966) (on-base swimming accident while on active duty); Hass for Use and Benefit of United States v. United States, 518 F.2d 1138 (4th Cir.1975) (accident occurred while riding horse rented from a military stable).

See Bon v. United States, 802 F.2d 1092, 1095 (9th Cir.1986) (the claim of an active duty member of the armed forces was properly dismissed where the injuries occurred in a canoe rented from the Navy Special Services Center which is under the direct responsibility and control of the commanding officer of the Naval Training Center).


Context: The trial court further erred in dismissing the entire multi-count petition based solely on Former Husband's inability to establish one of the listed grounds for modification. In actions involving numerous counts, dismissal of the entire case is proper only if the plaintiff has failed to establish a prima facie case as to each of the counts.

See Xamnad, Inc. v. Patio Cafe, Inc., 486 So.2d 699, 700 (Fla. 4th DCA 1986) (holding that the trial court reversibly erred in dismissing the multi-count complaint in its entirety when the facts therein supported at least one cause of action); see also Sec. Abstract & Ins. Co. v. Fid. Nat’l Title Ins. Co. of Pa., 668 So.2d 658, 658 (Fla. 4th DCA 1996) (holding that the trial court properly dismissed the entire multi-count complaint because the plaintiff “failed to establish a prima facie case as to any of [the counts]”).

holding that the trial court properly dismissed the entire multi-count complaint because the plaintiff "failed to establish a prima facie case as to any of [the counts]"


Context: It is undisputed that Burd did not preserve the error; accordingly, Burd bears the burden to demonstrate that the error caused him egregious harm, i.e., deprived him of a fair trial or vitally affected a defensive theory. See Tex.Code Crim. PROC.

"[I]f no proper objection was made at trial and the accused must claim that the error was 'fundamental,' he will obtain a reversal only if the error is so egregious and created such harm that he 'has not had a fair and impartial trial' -- in short 'egregious harm.' "

Ann. § 36.19 (when reviewing the jury charge on appeal, “the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial”); Almanza, 686 S.W.2d at 171 (“[I]f no proper objection was made at trial and the accused must claim that the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’ ”); see also Woodard v. State, 322 S.W.3d 648, 658 (Tex.Crim.App.2010) (citing Almanza, 686 S.W.2d at 171-72 (“[W]hen no proper objection is made to jury-charge error at trial, a defendant may obtain a reversal only in those few situations where the error is ‘fundamental’ or is ‘egregious[ly] harmful.’ ”).

"[W]hen no proper objection is made to jury-charge error at trial, a defendant may obtain a reversal only in those few situations where the error is 'fundamental' or is 'egregious[ly] harmful.' "


Context: But Armstrong's defamation claim arises from allegations .that defendants (1) wrongfully terminated his employment; (2) refused to let him return to work; (3) made defamatory remarks about him to the media; and (4) sent out an email threatening to terminate the employment of any WDEQ employees who speak to him. Even assuming that defendants undertook these actions in response to Armstrong's decision to report what he viewed as the illegal permitting of the landfill, Armstrong makes no- effort to explain whether or how defendants were "acting within the scope of their duties in the operation" of the landfill when they allegedly defamed him. SS l-39-108(a) (emphasis added).

defining term "operation" and concluding that SS 1-39-108 "waives immunity for negligence in keeping the public utility operable or functional"

See City of Torrington v. Cottier, 145 P.3d 1274, 1278, 1280 (Wyo. 2006) (defining term “operation” and concluding that § 1-39-108 “waives immunity for negligence in keeping the public utility operable or functional”); see also Sinclair v. City of Gillette, 270 P.3d 644, 646, 648 (Wyo. 2012) (holding that city’s “negligence in determining the legal status of [plaintiffs’] property” wasn’t “negligence in the operation of the storm drain” that city installed on that property because city’s negligence was “unrelated to” actual operation of storm drain).

holding that city's "negligence in determining the legal status of [plaintiffs'] property" wasn't "negligence in the operation of the storm drain" that city installed on that property because city's negligence was "unrelated to" actual operation of storm drain


Context: . Pelache's other issues are ancillary to his constitutional issues because they deal with the sufficiency of the evidence supporting the enhancement allegations and the trial court's calculation of the enhanced sentence. Therefore, we address Pelache's fifth and sixth issues out of order because they present a threshold question.

See In the Interest of B.L.D., 113 S.W.3d 340, 349 (Tex.2003) (noting the prudential principle that we decide constitutional questions only when we cannot resolve issues on nonconstitutional grounds); see also., Turner v. State, 754 S.W.2d 668, 675 (Tex.Crim.App.1988) (providing that the constitutionality of a statute is not to be determined in any case unless such a determination is absolutely necessary to decide the case in which the issue is raised).


Context: A twenty-five year mandatory minimum for a seemingly minor offense of burglary of $76.00 and a brassiere is extreme. However, no challenge is before us concerning the constitutionality of the punishment. However, there is precedent for finding an Eighth Amendment violation for an unduly harsh penalty imposed pursuant to a three-strikes law.

See also Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (holding that it was a violation of the Eighth Amendment to sentence a defendant to life for a seventh nonviolent felony of writing a bad check for $100.00).

See Crosby v. State, 824 A.2d 894 (Del.2003) (holding that an effective life sentence of forty-five years for second-degree forgery was excessive and that a life sentence was cruel and unusual in violation of the Eighth Amendment).


Context: In addition to not raising the catalyst theory in his opening brief, Mr. Klein further fails to produce evidence necessary to establish his entitlement to fees under the catalyst theory in any of the declarations or exhibits filed with his opening brief. See In re Hansen Natural Corp. Secs.

"Local Rule 7-5(b) of the Central District of California specifies that '[t]he evidence upon which the moving party will rely in support of the motion[]' 'shall be served and filed with the notice of the motion.' "

Litig., 527 F.Supp.2d 1142, 1150 (C.D.Cal. 2007) (“[T]he Court will not consider evidence presented for the first time in a reply.”); see also Kruszka v. Toyota Motor Corp., No. CV 11-01578-RGK FFMx, 2011 WL 9820198, at *3 (C.D.Cal. Aug. 2, 2011) (“Local Rule 7-5(b) of the Central District of California specifies that ‘[t]he evidence upon which the moving party will rely in support of the motion[]’ ‘shall be served and filed with the notice of the motion.’ ”).

"[T]he Court will not consider evidence presented for the first time in a reply."


Context: In Secretary of State v. Joseph H. The Court reasoned that, as a result of the statute, charities were reluctant to contract with the plaintiff because it charged fees in excess of 25% and that the plaintiffs impetus to challenge the statute was therefore consonant with the charities' First Amendment interests.

holding that the owner of an adult entertainment establishment had overbreadth standing to pursue a First Amendment challenge against provisions of an ordinance that required the employees of such establishments to obtain a license because the licensing scheme -- although not directly applicable to the owner -- threatened his business's viability

Id. at 958, 104 S.Ct. 2839 (“The activity sought to be protected is at the heart of the business relationship between Munson and its clients, and Munson’s interests in challenging the statute are completely consistent with the First Amendment interests of the charities it represents.”); see also Clark v. City of Lakewood, 259 F.3d 996, 1010-11 (9th Cir.2001) (holding that the owner of an adult entertainment establishment had overbreadth standing to pursue a First Amendment challenge against provisions of an ordinance that required the employees of such establishments to obtain a license because the licensing scheme — although not directly applicable to the owner — threatened his business’s viability).

"The activity sought to be protected is at the heart of the business relationship between Munson and its clients, and Munson's interests in challenging the statute are completely consistent with the First Amendment interests of the charities it represents."


Context: Plaintiff submits that defendant is bound by New York State's six-year statute of limitations period on mortgage foreclosure actions.

discussing priority of liens arising from federal lending programs and determining that the SBA "unquestionably perform[s] federal functions"

United States v. Kimbell Foods, Inc., 440 U.S. 715, 726, 99 S.Ct. 1448, 1457, 59 L.Ed.2d 711 (1979) (discussing priority of liens arising from federal lending programs and determining that the SBA “unquestionably perform[s] federal functions”); see also United States v. John Hancock Mutual Life Ins. Co., 364 U.S. 301, 308, 81 S.Ct. 1, 6, 5 L.Ed.2d 1 (1960) (“the United States is not subject to local statutes of limitations”).

"the United States is not subject to local statutes of limitations"


Context: The Court is persuaded that the above facts are sufficient to cast doubt on Defendants' claim that Plaintiff was fired for poor performance.

"The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of a prima facie case, suffice to show intentional discrimination."

See Chambers, 43 F.3d at 37 (“Circumstances contributing to a permissible inference of discriminatory intent may include ... the sequence of events leading to the plaintiffs discharge.”); Few v. Yellow Freight Sys., Inc., 845 F.2d 123, 124 (6th Cir.1988) (affirming verdict in favor of plaintiff where trial judge found that defendant “deliberately built a file against her in order to be able to terminate her”); Hatcher-Capers v. Haley, 786 F.Supp. 1054, 1063 (D.D.C.1992) (finding plaintiff proved she was victim of unlawful discrimination in the form of disparate treatment on the basis of her race and gender in part because “the reason proffered by the defendant for its failure to promote the plaintiff, namely, a policy of limiting the availability of promotions which was never publicized and not adopted out of financial necessity or budgetary constraints, is a mere pretext for discrimination”); cf. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (“The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of a prima facie case, suffice to show intentional discrimination.”); Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir.1997) (“[W]hen the plaintiffs evidence ... challenges the defendant’s articulated nondiscriminatory reason, such evidence may serve as well to support a reasonable inference that discrimination was a motivating reason for the employer’s decision.”).

"Circumstances contributing to a permissible inference of discriminatory intent may include ... the sequence of events leading to the plaintiffs discharge."


"[W]hen the plaintiffs evidence ... challenges the defendant's articulated nondiscriminatory reason, such evidence may serve as well to support a reasonable inference that discrimination was a motivating reason for the employer's decision."


affirming verdict in favor of plaintiff where trial judge found that defendant "deliberately built a file against her in order to be able to terminate her"


finding plaintiff proved she was victim of unlawful discrimination in the form of disparate treatment on the basis of her race and gender in part because "the reason proffered by the defendant for its failure to promote the plaintiff, namely, a policy of limiting the availability of promotions which was never publicized and not adopted out of financial necessity or budgetary constraints, is a mere pretext for discrimination"


Context: The problem is not so much that Officer Chih failed to adequately scrutinize the basis of Ms. Thompson-Wright's knowledge, but rather that he failed to give sufficient weight to her own admission that the basis of her knowledge was either neighborhood rumor or conjecture or an anonymous source whose credibility and reliability were unknown. This court has never held that it should ignore facts that tend to undermine reasonable suspicion.

holding that a seizure was unlawful because certain facts had "dispelled" the officer's reasonable suspicion

See Pridgen v. United States, 134 A.3d 297, 301 (D.C. 2016) ("To determine whether police officers had reasonable suspicion, a court must review the totality of the circumstances present.” (emphasis added)); cf. Ramsey v. United States, 73 A.3d 138, 147 (D.C. 2013) (holding that a seizure was unlawful because certain facts had “dispelled” the officer’s reasonable suspicion).

"To determine whether police officers had reasonable suspicion, a court must review the totality of the circumstances present." (emphasis added


Context: As discussed above, Plaintiffs failure to file a motion to dismiss earlier does not constitute conduct sufficiently egregious to warrant the imposition of sanctions or the awarding of attorney's fees. The Court does find, nonetheless, that Plaintiff should be made to pay Defendants' costs that were reasonably incurred in the defense of this case.

See O’Ferral v. Trebol Motors Corp., 45 F.3d 561, 564 (1st Cir.1995) (District court has discretion to award costs beyond those specified in 28 U.S.C. § 1920); cf. Burnette, 828 F.Supp. at 1444, 1447-49 (The award of legal costs was proper where Plaintiff dismissed with prejudice a RICO claim that had not been sufficiently researched).

District court has discretion to award costs beyond those specified in 28 U.S.C. SS 1920


Context: 509 So.2d at 1076-77 (second emphasis added). Thus, the Watkins Court established that when nothing in the record supports the bare allegation that a constitutional violation occurred, a court cannot find plain error.

Cf. Brooks v. State, 929 So.2d 491 (Ala.Crim.App.2005)(holding that an ambiguous or silent record will not support a claim of ineffective assistance of counsel).

See also White v. State, 587 So.2d 1218 (Ala.Crim.App.1990), affd, 587 So.2d 1236 (Ala.1991) (holding that a Batson claim could not be addressed on appeal when the record did not even raise the inference of unconstitutional jury selection).


Context: The emphasized portion of $ 18-8-208.1(2) has been interpreted as requiring that sentences imposed for attempted escape convictions run consecutive to the sentence for the "underlying felony."

People v. Andrews, 871 P.2d 1199, 1203 (Colo.1994); see also People v. Akers, 746 P.2d 1381, 1385 (Colo.App.1987) ("General Assembly intended that a defendant must serve a consecutive sentence for' the substantive crime of escape, whether completed or not"); but see People v. Martines, 703 P.2d 619, 620 (Colo.App.1985) (interpreting § 18-8-208.1 as requiring that the sentence imposed for an attempted escape conviction run consecutive to "the term defendant was serving at the time of the escape").

interpreting SS 18-8-208.1 as requiring that the sentence imposed for an attempted escape conviction run consecutive to "the term defendant was serving at the time of the escape"


Context: The'government asserts that "defendants-were put on notice and consented to having their phone calls monitored, recorded and divulged," citing DOC's written policies on inmate phone calls, and thus have no legitimate expectation of privacy in the calls. Gov't's Reply at 5-6. The vast weight of authority supports the government's position that, even assuming the defendants in this case subjectively believed that their calls were private, any such belief was unreasonable.

"So long as a prisoner is provided notice that his communications will be recorded and 'he is in fact aware of the monitoring program [but] nevertheless uses the telephones, by that use he impliedly consents to be monitored for purposes of Title III.'" (alterations in original

See, e.g., Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962) (in jail setting, “official surveillance has traditionally been the order of the day”); United States v. Shavers, 693 F.3d 363, 389-90 (3d Cir. 2012), vacated on other grounds, — U.S. —, 133 S.Ct. 2877, 186 L.Ed.2d 902 (2013) (holding inmates and those with whom they converse have no “objectively reasonable expectation of privacy” in telephone conversations where inmates “received a handbook alerting [them] that all telephone calls were recorded”, and were “exposed to a document hanging in the common areas that notified prisoners that their calls might be monitored and recorded”); United States v. Monghur, 588 F.3d 975, 978-79 (9th Cir. 2009) (“[The defendant] concedes, as he must, that he had no expectation of privacy” in “jail telephone conversations that he knew were monitored by law’enforcement.”); United States v. Novak, 531 F.3d 99, 102 (1st Cir. 2008) (O’Connor, ' J., sitting by designation) (“[I]nmates and pretrial detainees who have been [given notice of monitoring of jail-calls] have been deemed to have consented to monitoring.”); United States v. Friedman, 300 F.3d 111, 123 (2d Cir. 2002) (holding notice received by pretrial detainee of recording of calls disposed of his Fourth Amendment claims related to recordings, “as he had no reasonable expectation of privacy under the circumstances”); United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir. 1996) (“[N]o prisoner should reasonably expect privacy in his outbound telephone calls.”); see also United States v. Balon, 384 F.3d 38, 44 (2d Cir. 2004) (“So long as a prisoner is provided notice that his communications will be recorded and ‘he is in fact aware of the monitoring program [but] nevertheless uses the telephones, by that use he impliedly consents to be monitored for purposes of Title III.’” (alterations in original) (quoting United States v. Workman, 80 F.3d 688, 693 (2d Cir. 1996))).

in jail setting, "official surveillance has traditionally been the order of the day"


holding inmates and those with whom they converse have no "objectively reasonable expectation of privacy" in telephone conversations where inmates "received a handbook alerting [them] that all telephone calls were recorded", and were "exposed to a document hanging in the common areas that notified prisoners that their calls might be monitored and recorded"


"[The defendant] concedes, as he must, that he had no expectation of privacy" in "jail telephone conversations that he knew were monitored by law'enforcement."


holding notice received by pretrial detainee of recording of calls disposed of his Fourth Amendment claims related to recordings, "as he had no reasonable expectation of privacy under the circumstances"


"[N]o prisoner should reasonably expect privacy in his outbound telephone calls."


Context: . Massachusetts also provides for the admissibility of extrinsic evidence when construing an ambiguous contract.

See Parrish v. Parrish, 30 Mass.App.Ct. 78, 566 N.E.2d 103, 108-09 (1991) (extrinsic evidence pertaining to background and purpose of parties and their understanding of meaning of particular language may be considered in construing ambiguous contract language); see also Haverhill v. George Brox, Inc., 47 Mass.App.Ct. 717, 716 N.E.2d 138 (1999) (when faced with ambiguity in contract, intent of parties is to be discerned from words in question, entire instrument, and circumstances surrounding agreement).


Context: "To defraud" has a "common understanding of wronging one in his property rights." Additionally, puffery does not constitute fraud.

United States v. Canty, 499 F.3d 729, 733-34 (7th Cir. 2007) (“puffing” does not give rise to actionable fraud); Williams v. Aztar Ind. Gaming Corp., 351 F.3d 294, 299 (7th Cir. 2003) (dismissing RICO claim because sales puffery did not constitute mail fraud); see also Jepson, Inc. v. Makita Corp., 34 F.3d 1321, 1330 (7th Cir.1994) (inherently subjective expressions ill-suited as basis for mail and wire fraud).


Context: The general rule that individual legislators lack standing to sue in their official capacity as congressman or senator follows from the requirement that an injury must be concrete and particularized. An apparent exception to the general rule against legislative standing arises when the legislators are suing on a vote-nullification theory and allege that if their votes had been given effect, those votes would have been sufficient to defeat or enact a specific legisla tive action.

Coleman v. Miller, 307 U.S. 433, 438, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) (holding that where forty-member Kansas State Senate had deadlocked twenty-to-twenty in voting on a proposed constitutional amendment, the twenty senators who had voted against the amendment had standing to challenge the constitutionality of the lieutenant governor’s tie-breaking vote in favor of the amendment, because the lieutenant governor’s vote effectively nullified the plaintiffs’ votes and the plaintiffs’ votes would have been sufficient to prevent ratification of the amendment); see also Baird v. Norton, 266 F.3d 408, 410 (6th Cir. 2001) (holding that a Michigan House member and a Michigan state senator lacked standing to challenge gaming compacts that were approved by a concurrent-resolution procedure requiring only a majority of votes cast rather than by the ordinary legislative process that would have required a majority of the votes of all members in each house).

holding that where forty-member Kansas State Senate had deadlocked twenty-to-twenty in voting on a proposed constitutional amendment, the twenty senators who had voted against the amendment had standing to challenge the constitutionality of the lieutenant governor's tie-breaking vote in favor of the amendment, because the lieutenant governor's vote effectively nullified the plaintiffs' votes and the plaintiffs' votes would have been sufficient to prevent ratification of the amendment


Context: Taken at face value, these records fail even to prove that Marks' sentences on these convictions ever met the guideline definition of "imprisonment," let alone that he was reincarcerated in 2000 due to a parole revocation. This court and most other circuits hold that sentences served in community treatment centers, halfway houses,, home detention, or other forms of probation are not imprisonment for guideline purposes.

See, e.g., United States v. Timbrook, 290 F.3d 957, 959-60 (7th Cir. 2002) (noting that Guidelines do not elaborate on definition of incarceration but explaining that residence in non-secure community treatment center or- halfway house is not imprisonment for guideline purposes); United States v. Phipps, 68 F.3d 159, 162 (7th Cir. 1995) (home detention not imprisonment for guideline purposes); United States v. Gordon, 346 F.3d 135, 138-39 (5th Cir. 2003) (same); United States v. Pielago, 135 F.3d 703, 711-14 (11th Cir. 1998) (community treatment center not imprisonment for guideline purposes); United States v. Jones, 107 F.3d 1147, 1161-65 (6th Cir. 1997) (home detention not imprisonment for guideline purposes); United States v. Latimer, 991 F.2d 1509, 1514 (9th Cir. 1993) (community treatment center not imprisonment for guideline purposes); but see United States v. Rasco, 963 F.2d 132 (6th Cir. 1992) (holding that confinement in community treatment center after parole revocation was part of original term of imprisonment).


Context: In order to meet the third prong of a prima facie case, a showing of facts and circumstances raising an inference of discrimination is required, and raw data alone is often not enough.

"Though statistics are not utterly bereft of analytical value, they are, at best, manipulate and untrustworthy absent a holistic view of the circumstances to which they apply"

See Allen v. Lee, 366 F.3d 319, 330 (4th Cir. 2004) (“Though statistics are not utterly bereft of analytical value, they are, at best, manipulate and untrustworthy absent a holistic view of the circumstances to which they apply”); Keel, 162 F.3d at 271 (holding that there was no Batson claim even when the prosecution used nearly seventy percent (70%) of its peremptory strikes to remove potential African American jurors); United States v. Tipton, 90 F.3d 861, 881 n.11 (4th Cir. 1996) (rejecting a claim of gender discrimination in use of peremptory strikes when the defendant provided only “raw figures” that eight out of twenty women were peremptorily struck by the government while only two out of twenty-one men were struck).

"[T]he statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors."

But see Miller-El v. Cockrell, 537 U.S. 322, 342, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[T]he statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors.”).


holding that there was no Batson claim even when the prosecution used nearly seventy percent (70%) of its peremptory strikes to remove potential African American jurors


rejecting a claim of gender discrimination in use of peremptory strikes when the defendant provided only "raw figures" that eight out of twenty women were peremptorily struck by the government while only two out of twenty-one men were struck


Context: (Vol. 8 at 1932-33 requesting instructions under OUJI-CR 449, 450 & 451.) The trial court declined the instructions, finding insufficient evidence to support a verdict of second-degree murder. On direct appeal to the OCCA, Welch argued the trial court committed constitutional error in failing to instruct on this lesser included offense.

See Schad v. Arizona, 501 U.S. 624, 647-48, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (while a jury need not be instructed on every lesser-included offense that may be supported, the jury must not be faced with an all (death) or nothing approach); see also Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (jury must be permitted to consider a lesser included non-capital offense when the evidence would have supported such a verdict). The OCCA held that because second degree murder is not a “lesser included offense of first degree malice murder” and the jury had been instructed on the lesser offense of first degree manslaughter, “the trial court did not err in refusing to give the instruction.”


Context: The statement merely describes the parties' expectations of the purpose of the loan. This statement does not oblige Park Avenue Bank to assure the proper use of the funds.

leases clearly manifested bank's obligation to make payments for purchase of broadcasting equipment

See Howell v. Cont’l Credit Corp., 655 F.2d 743, 746-47 (7th Cir.1981) (leases clearly manifested bank’s obligation to make payments for purchase of broadcasting equipment).

Two Rivers Assocs., 880 F.2d at 1275-76 (bank record evidencing obligation to provide additional loan was not sufficient to show agreement to fund entire project); McCullough, 911 F.2d at 601 (memorandum and letters in bank files referencing alterations to mortgage were insufficient evidence of bank’s obligation to transfer property or oil leases to borrower). The statement of purpose contained in the Note is not an explicit obligation and is not the type of agreement that has been sufficient to prevent operation of the D’Oench Duhme doctrine.


memorandum and letters in bank files referencing alterations to mortgage were insufficient evidence of bank's obligation to transfer property or oil leases to borrower


Context: Some of our sister circuits appear to have recognized an innocent possession defense; however, we can find no case in which a circuit has squarely applied the innocent possession defense to a SS 922(g)(1) charge, where the elements of a justification defense are not present.

See United States v. Ali, 63 F.3d 710, 716 n. 7 (8th Cir.1995) (declining to address whether the defense was available because defense counsel failed to seek a proper instruction on the innocent possession theory, but noting that its case law did not foreclose such a defense); United States v. Elder, 16 F.3d 733, 738 (7th Cir.1994) (concluding that although the innocent possession defense presented a “novel issue,” it need not decide the issue because the evidence did not support the defense); cf. United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir.1991) (recognizing an “innocent possession defense,” though the defense in that case is more properly considered a “justification defense” as life and limb were arguably at stake).

recognizing an "innocent possession defense," though the defense in that case is more properly considered a "justification defense" as life and limb were arguably at stake


concluding that although the innocent possession defense presented a "novel issue," it need not decide the issue because the evidence did not support the defense


Context: Defendants' argument that they will be unduly prejudiced because of the extensive alleged culpability of some of their co-Defendants, in comparison to the asserted lesser degree of their asserted individual involvements in the alleged conspiracy, does not require granting said Defendants a separate trial because the court must also consider, based on the nature of the expected evidence, the jury's ability to weigh the evidence against the individual co-Defendants at a joint trial. In particular, in addition to the various levels of culpability of the co-defendants, the court must consider the jury's ability to weigh the evidence against each co-defendant separately and equitably.

severance was denied where evidence regarding each defendant "was adequately straightforward that the jury could consider it without any significant spillover effect."

United States v. Kahaner, 203 F.Supp. 78, 81-82 (S.D.N.Y.1962) (if jury can “collate and appraise independent evidence against each defendant solely upon the defendant’s own acts” and render a fair verdict as to each defendant, severance is unnecessary), aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 73, 74, 11 L.Ed.2d 65 (1963); see also United States v. Perez, 940 F.Supp. 540, 546 (S.D.N.Y.1996) (citing United States v. Chang An-Lo, 851 F.2d 547, 556 (2d Cir. 1988) (severance was denied where evidence regarding each defendant “was adequately straightforward that the jury could consider it without any significant spillover effect.”)).

if jury can "collate and appraise independent evidence against each defendant solely upon the defendant's own acts" and render a fair verdict as to each defendant, severance is unnecessary


Context: The VA's tragic decision to expel Mr. DeJesus "[w]ithout a doubt ... [took] someone who [was] already in crisis and ... compounded] that crisis many fold because ... now that [the VA was] throwing him out of the sanctuary where he [had] been for over a year." (1.140). Thus, the VAMC's multiple breaches and its insistence that Mr. DeJesus be discharged without an evaluation, detainment, or involuntary commitment substantially caused the death of Alejandro DeJesus, Jr., Felicia DeJesus, Mark Faulk, and Aaron Faulk.

See Sherk v. County of Dauphin, 531 Pa. 515, 614 A.2d 226, 232 (1992) (causation established when hospital “prematurely” discharged mental patient who shot another some six weeks after discharge); see also Goryeb v. Commonwealth, Dep’t of Public Welfare, 525 Pa. 70, 78, 575 A.2d 545 (Pa.1990) (causation established when hospital improperly discharged a mutual patient who shot three people a week after his discharge); Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111, 115 (1977).

causation established when hospital "prematurely" discharged mental patient who shot another some six weeks after discharge


Context: The general rule is that an indictment is sufficient if its language tracks the statute.

Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (“It is generally sufficient that an indictment set forth the offense in the words of the statute itself.”); Gooding, 25 U.S. at 474, 25 U.S. 460 (“In general, it may be said, that it is sufficient certainty in ... an indictment to allege the offence in the very terms of the statute.”); cf. Hamling, 418 U.S. at 117, 94 S.Ct. 2887 (clarifying that the general rule applies so long as the statutory language provides all the elements of the offense); United States v. Superior Growers Supply, Inc., 982 F.2d 173, 176 (6th Cir.1992) (“An indictment will usually be sufficient if it states the offense using the words of the statute itself, as long as the statute fully and unambiguously states all the elements of the offense.”).

"It is generally sufficient that an indictment set forth the offense in the words of the statute itself."


"An indictment will usually be sufficient if it states the offense using the words of the statute itself, as long as the statute fully and unambiguously states all the elements of the offense."


"In general, it may be said, that it is sufficient certainty in ... an indictment to allege the offence in the very terms of the statute."


Context: In our weighing the ordinance in this case and the Supreme Court's reasoning in upholding a similar ordinance, we conclude that the Federal rule does not adequately protect the rights of the citizens of Massachusetts under art. 16. Not surprisingly, other State Supreme Courts have come to the same conclusion.

See Pap’s A.M. v. Erie, 571 Pa. 375, 394 (2002) (on remand from United States Supreme Court, Supreme Court of Pennsylvania held Erie ordinance invalid on State constitutional grounds).

See also Mickens v. Kodiak, 640 P.2d 818, 821- 823 (Alaska 1982) (citing Commonwealth v. Sees, supra, court held ordinance prohibiting nude performances violates State Constitution even if not First Amendment); Bellanca v. New York State Liquor Auth., 54 N.Y.2d 228, 234-236 (1981), cert. denied, 456 U.S. 1006 (1982) (on remand from United States Supreme Court, court held complete ban on topless dancing in establishments serving alcohol invalid on State constitutional grounds).


Context: But the appropriate question is not whether the prosecutor had probable cause to believe Meza committed battery. When the defendants in a malicious prosecution action are police officers or complaining witnesses rather than prosecutors, the question is whether the defendants themselves had probable cause to believe the offence had been committed at the time they initiated the criminal proceeding.

"The fact that [Principal] Banks had probable cause to sign the criminal complaints for the Stokes' arrest means that defendants are also entitled to summary judgment on these supplemental state-law claims."

See Gauger v. Hendle, 352 Ill.Dec. 447, 954 N.E.2d 307, 329 (Ill.App.Ct.2011) (“The existence of probable cause in a malicious-prosecution action is determined by looking to what the defendants knew at the time of subscribing a criminal complaint and not at the (earlier) time of arrest.”); see also Stokes v. Bd. of Educ. of the City of Chi., 599 F.3d 617, 626 (7th Cir.2010) (“The fact that [Principal] Banks had probable cause to sign the criminal complaints for the Stokes’ arrest means that defendants are also entitled to summary judgment on these supplemental state-law claims.”)

"The existence of probable cause in a malicious-prosecution action is determined by looking to what the defendants knew at the time of subscribing a criminal complaint and not at the (earlier


Context: The fact that Plaintiff decided not to exhaust the available administrative remedies by appealing to the BCNR does not affect the court's jurisdiction.

"[T]he failure to seek relief from a correction board ... does not prevent the plaintiff from suing immediately[.]"

See Martinez v. United States, 333 F.3d 1295, 1304 (Fed.Cir.2003) (“[T]he failure to seek relief from a correction board ... does not prevent the plaintiff from suing immediately[.]”); see also Richey v. United States, 322 F.3d 1317, 1323 (Fed.Cir.2003) (“An officer seeking correction of military records may either apply as an initial matter to a Corrections Board, or file suit under the Tucker Act in the [United States] Court of Federal Claims.”).

"An officer seeking correction of military records may either apply as an initial matter to a Corrections Board, or file suit under the Tucker Act in the [United States] Court of Federal Claims."


Context: Accordingly, on this record, we cannot conclude that the alleged charge error affected the very basis of the case, deprived appellant of a valuable right, vitally affected appellant's defensive theory, or made a case for conviction clearly and significantly more persuasive.

"Where no defense is presented which would directly affect an assessment of mental culpability, there is no harm in submitting erroneous definitions of 'intentionally' and 'knowingly.' "

See Saldivar, 783 S.W.2d at 268 (“Where no defense is presented which would directly affect an assessment of mental culpability, there is no harm in submitting erroneous definitions of ‘intentionally’ and ‘knowingly.’ ”); see also Jones v. State, 229 S.W.3d 489, 494 (Tex.App.-Texarkana 2007, no pet.) (“[T]he intent of Jones in touching B.S.S., while it was part of the State’s required proof, was not a contested issue and consequently Jones could not be egregiously harmed by the definition of the intentional and knowing state of mind.”). We overrule appellant’s first issue.

"[T]he intent of Jones in touching B.S.S., while it was part of the State's required proof, was not a contested issue and consequently Jones could not be egregiously harmed by the definition of the intentional and knowing state of mind."


Context: Enforcing an agreement, such as this one, that requires the parents to meet and agree after they already have demonstrated their inability to agree exposes the child to further discord and surrounds the child with an atmosphere of hostility and insecurity.

statute awarding child rearing decisions to custodial parent has rational basis because it will avoid the "constant buffeting of a child between two parents who disagree on the issues of the child's upbringing, including his education, health care and religious training_"

See Cleveland v. Cleveland, 165 Conn. 95, 328 A.2d 691, 695 (1973) (agreement providing for choice of school by noncustodial parent deleted from separation agreement because it would lead to further parental conflict); cf. Rhoades v. Rhoades, 188 Colo. 423, 428, 535 P.2d 1122, 1125 (1975) (statute awarding child rearing decisions to custodial parent has rational basis because it will avoid the “constant buffeting of a child between two parents who disagree on the issues of the child’s upbringing, including his education, health care and religious training_”).


Context: The amended complaint alleges that the dumping facilitated by Hamden occurred in wetlands and low lying areas, and that it was only after the dumps were closed that residential development began in those areas. One of the key factors underlying decisions that have found an activity to be ultrahazardous is that the activity was conducted in a heavily populated area.

granting motion to strike because, inter alia, the plaintiffs failed to alleged "that the activity was conducted in a heavily populated area or otherwise inappropriate location"

See, e.g., P.R.I.C.E., Inc. v. Keeney, 22 Conn. L. Rptr. 373, 1998 WL 417591 (Conn.Super., July 10,1998) (granting motion to strike because, inter alia, the plaintiffs failed to alleged “that the activity was conducted in a heavily populated area or otherwise inappropriate location” ); see also Caporale, 149 Conn. at 85, 175 A.2d 561 (stressing that courts must review the circumstances and conditions surrounding the activity, and noting that the pile driving in that case occurred within seventy-five feet of the building that was damaged).


Context: To determine what the applicable filing requirements are, the Court must turn to Arkansas law. In Arkansas, an income tax return "shall be filed as follows: (a) If covering the preceding calendar year, on or before April 15."

concluding that timeliness was condition for filing a habeas petition when state rule said the petition "shall" be filed within the time limit

Ark. Code Ann. § 26-51-806(a)(2)(A). By including a requirement that a tax return “shall be filed” by a certain date, the state is indicating that timeliness is a condition to filing. See Pace v. DiGuglielmo, 544 U.S. 408, 414-15, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (concluding that timeliness was condition for filing a habeas petition when state rule said the petition “shall” be filed within the time limit); see also In re Fahey, 779 F.3d at 8 (finding late-filed return did not comply with Massachusetts timely filing requirement); In re Mallo, 774 F.3d at 1321 (citing cases and finding that filing requirements include filing deadlines); In re McCoy, 666 F.3d at 932 (finding late-filed return did not comply with Mississippi timely filing requirement).


finding late-filed return did not comply with Mississippi timely filing requirement


Context: Although the government contends that the district court made individualized determinations for each defendant, this argument overlooks the fact that the court neglected to identify the particular evidence presented at trial and at the sentencing hearing that led it to find Orlando accountable for $449,000.

holding that the district court complied with the requirements of SS lB1.3(a

See United States v. Corvado, 227 F.3d 528, 540-41 (6th Cir.2000) (remanding the case for re-sentencing because the district court “either summarily adopted the findings of the [PSR] or simply declared that the enhancement in question was supported by a preponderance of the evidence,” thereby failing to comply with the requirement of Rule 32(c)(1) of the Federal Rules of Criminal Procedure that it make specific factual findings for each sentencing matter controverted); United States v. Monus, 128 F.3d 376, 396-97 (6th Cir.1997) (holding that the district court failed to comply with Rule 32(c)(1) because its oral finding regarding the value of loss resulting from Monus’s offense was stated in general terms and “did not explain how it calculated the amount of loss or respond to the defendant’s specific factual objections to the methods of calculation included in the [PSR]”); cf. United States v. Wilson, 168 F.3d 916, 925 (6th Cir.1999) (holding that the district court complied with the requirements of § lB1.3(a)(l)(B) where it “made specific references to testimony in the record relating to the scope of [the defendant’s] involvement in the drug trafficking conspiracy,” noted that the relevant testimony was unrefuted, and stated that the testimony was internally consistent).

remanding the case for re-sentencing because the district court "either summarily adopted the findings of the [PSR] or simply declared that the enhancement in question was supported by a preponderance of the evidence," thereby failing to comply with the requirement of Rule 32(c


holding that the district court failed to comply with Rule 32(c


Context: The affidavit claimed the informants were ordinary citizens whose reliability can be presumed; moreover, the tips were corroborated by Officer Cross' observation of the traffic to the residence.

warrant may place "minimal reliance" on informant's tip even if informant's reliability not shown where there is an independent source

See State v. Eling, 355 N.W.2d 286, 291 (Minn.1984) (lack of showing of informant’s reliability is not fatal where the tip is corroborated); see also State v. Siegfried, 274 N.W.2d 113, 116 (Minn.1978) (warrant may place “minimal reliance” on informant’s tip even if informant’s reliability not shown where there is an independent source).

lack of showing of informant's reliability is not fatal where the tip is corroborated


Context: Wilkins argues, based on an unreported decision of a Special Workers' Compensation Appeals Panel, that a failure to incorporate the average weekly wage concept into the temporary partial disability calculation would undermine workers' compensation policy. She notes that the calculation of an employee's average weekly wage includes such compensation as overtime, bonuses, and commissions.

stating that the earnings of an employee under this definition "include anything received by him under the terms of his employment contract from which he realizes economic gain"

See P & L Const. Co. v. Lankford, 559 S.W.2d 793, 795 (Tenn. 1978) (stating that the earnings of an employee under this definition “include anything received by him under the terms of his employment contract from which he realizes economic gain”).

holding that the scope of the "average weekly wage" definition is not unlimited and concluding that it excludes "fringe benefits"

But see Pollard, 886 S.W.2d at 760 (holding that the scope of the “average weekly wage” definition is not unlimited and concluding that it excludes “fringe benefits”).


Context: Ballentine's Law Dictionary (2010); Black's Law Dictionary (8th ed.2004). Courts have applied this reasoning to conclude that impracticability of negotiations is a fact-sensitive inquiry that "depends upon the circumstances of the case."

In re City of Vallejo, 408 B.R. at 298; In re Valley Health Sys., 383 B.R. at 161-63 (examining plain language of statute and rejecting constrained reading of impracticability requirement).

"Whether negotiations with creditors is impracticable depends on the circumstances of the case."

See also In re Pierce County, 414 B.R. at 713 (“Whether negotiations with creditors is impracticable depends on the circumstances of the case.”) (quoting In re City of Vallejo, 408 B.R. at 298) (internal quotation marks omitted).


Context: In In re Antony B., the trial court's findings that the department made reasonable efforts at reunification were upheld in light of the fact that the respondent rejected many of the services offered to her and did not choose to accept services from the department. Several other cases involving appeals from termination of parental rights judgments have held that the department is not required to continue to provide reasonable efforts to a parent when the parent refuses to participate or engage in any of those efforts.

despite department's repeated offers of referrals and assistance so respondent could satisfy specific steps requirements respondent refused to comply

See In re Christopher C., 134 Conn. App. 473, 481-82, 39 A.3d 1127 (2012) (despite department’s repeated offers of referrals and assistance so respondent could satisfy specific steps requirements respondent refused to comply); see also In re Samantha C., 268 Conn. 614, 632-33, 847 A.2d 883 (2004) (not unreasonable for department to abandon reunification efforts when it did, given age and needs of the child, time allotted for the respondents’ rehabilitation and time child had spent in foster care); In re Daniel C., 63 Conn. App. 339, 362, 776 A.2d 487 (2001) (after respondents had not benefited from decade of efforts and services, it was not unreasonable for department to decline to pursue reunification as goal after children’s final removal).

not unreasonable for department to abandon reunification efforts when it did, given age and needs of the child, time allotted for the respondents' rehabilitation and time child had spent in foster care


after respondents had not benefited from decade of efforts and services, it was not unreasonable for department to decline to pursue reunification as goal after children's final removal


Context: We recognize that paying damages would, of course, financially affect NSP and could, for that reason, indirectly affect future rates. Damages for negligent actions are generally considered a cost of doing business, similar to the acquisition of materials and supplies or other expenses.

See Lange v. Nat’l Biscuit Co., 297 Minn. 399, 403, 211 N.W.2d 783, 785 (1973) (noting that vicarious tort liability is based on notion that companies can absorb this liability as business cost); see also Jones v. Schiek’s Cafe, 277 Minn. 273, 277, 152 N.W.2d 356, 359 (1967) (referring to burden on employers under workers’ com pensation statutes to compensate for workplace injuries as “a proportionate part of the expense of production”). When the MPUC determines rates or rate changes, these costs are presumably part of what it accounts for in considering the “financial and economic requirements” of NSP. Minn.Stat. §■ 216B.01.

referring to burden on employers under workers' com pensation statutes to compensate for workplace injuries as "a proportionate part of the expense of production"


Context: The Court will, however, strike them because, as Defendants assert, they are unrelated to the alleged discrimination against Wilson. The statements made by Labon happened in 1998 and 2000 respectively, and there is no allegation that Labon had anything to do with the decision to transfer or to not hire Wilson.

Bailey, 239 F.R.D. at 486. (“vague and unrelated allegations of discrimination made by an individual regarding another employee who had nothing to do with the alleged discrimination against Plaintiff are irrelevant and inadmissible.”); See also Smith v. Leggett Wire Co., 220 F.3d 752, 759-60 (6th Cir.2000) (finding district court committed reversible error by admitting evidence of racial statements made by co-workers of African-American employee long before his termination, none of whom were responsible for the decision to terminate).

"vague and unrelated allegations of discrimination made by an individual regarding another employee who had nothing to do with the alleged discrimination against Plaintiff are irrelevant and inadmissible."


Context: We will accept Gallas' allegation that Judge Sylvester violated a court "rule" which allowed the release of an impounded PFA only for purposes of its use as evidence in a judicial proceeding, and only then upon judicial order following a verified petition properly noticed to all interested parties. Yet, such a procedural error at most might establish that Judge Sylvester acted in excess of her jurisdiction, not that she acted in the clear absence of all jurisdiction.

"A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors."

See id. at 359, 98 S.Ct. at 1106 (“A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.”); see also Mí-reles, 502 U.S. at 13, 112 S.Ct. at 289 (holding that a judge merely acted in excess of his authority in ordering police officers to use excessive force in bringing an attorney to his courtroom for a calendar call); Rolleston v. Eldridge, 848 F.2d 163, 164-65 (11th Cir.1988) (“Even assuming that Judge Eldridge had not followed procedural rules, his action would still be within his jurisdiction.”).


"Even assuming that Judge Eldridge had not followed procedural rules, his action would still be within his jurisdiction."


Context: Instead, it was given only after closing arguments had been completed and, even then, after a fifteen-minute recess. Therefore, there was nothing directly linking this jury instruction to the prosecutor's misconduct.

trial judge's instructions did not cure the error caused by the misconduct because "[n]o curative instructions were given at the time of defense's objections" and the "judge did not mention the prosecutor's improper comments" during his general charge to the jury

See Lent v. Wells, 861 F.2d 972, 977 (6th Cir.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989) (trial judge’s instructions did not cure the error caused by the misconduct because “[n]o curative instructions were given at the time of defense’s objections” and the “judge did not mention the prosecutor’s improper comments” during his general charge to the jury); see also Smith, 500 F.2d at 298 (cautionary instruction did not neutralize the prejudice of comments that called attention to the defendants’ failure to testify because it “failed expressly to instruct the jury that no adverse inference could be drawn from [the defendants’] silence”).

cautionary instruction did not neutralize the prejudice of comments that called attention to the defendants' failure to testify because it "failed expressly to instruct the jury that no adverse inference could be drawn from [the defendants'] silence"


Cf. United States v. Cruz-Padilla, 227 F.3d 1064, 1069 (8th Cir.2000) (prejudice caused by prosecutorial misconduct during closing argument was not cured because the district court issued no curative instructions where the defense failed to object to the misconduct).


Context: Moreover, substantial evidence supports the BIA's determination that Huang failed to establish that conditions in China had changed materially for Falun Gong practitioners. While the evidence indicated that repression of Falun Gong practitioners increased around the 2008 Olympics, the evidence also demonstrated that the repression has been constant and ongoing since the time of Huang's hearing in 2001, and Huang did not submit evidence indicating that any increased repression of Falun Gong practitioners continued after the 2008 Olympics and into 2009.

"Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."

See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir.2007) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”)(internal quotation marks omitted); see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008) (reviewing the BIA’s factual findings regarding changed country conditions under the substantial evidence standard).

reviewing the BIA's factual findings regarding changed country conditions under the substantial evidence standard


Context: There can be no serious dispute with the court's finding of a "massive fraud of the court." The district court was authorized to compel discovery which would reveal existence of the fraud as well as efforts to conceal it.

holding crime-fraud exception applied to testimony of attorney and accountant, who prepared his client's tax returns during grand jury investigation for tax evasion

In re Grand Jury Investigation, 842 F.2d 1223 (11th Cir. 1987) (holding crime-fraud exception applied to testimony of attorney and accountant, who prepared his client’s tax returns during grand jury investigation for tax evasion); see also In re E.I. DuPont De Nemours & Co.-Benlate Litig., 99 F.3d 363, 367 (11th Cir. 1996) (“Every district court has the power to conduct an independent investigation in order to determine whether it has been the victim of fraud.”) (internal citation and quotation marks omitted).

"Every district court has the power to conduct an independent investigation in order to determine whether it has been the victim of fraud."


Context: Finding the Commonwealth Court's constitutionality ruling is properly before us, we move to the merits of this appeal. The Uniformity Clause prescribes "[a]ll taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws."

noting Uniformity Clause requires only substantial uniformity, "which means as nearly uniform as practicable in view of the instrumentalities with which and subjects upon which tax laws operate"

Clifton v. Allegheny County, 600 Pa. 662, 969 A.2d 1197, 1210 (2009) (citing Leonard v. Thornburgh, 507 Pa. 817, 489 A.2d 1349, 1352 (1985); In re Harleigh Realty Co., 299 Pa. 385, 149 A. 653, 654 (1930) (“Scientific formulae, arithmetical deductions and mental contemplations, have small value in making assessments under our practical system of taxation.”)). “Some practical inequalities are obviously anticipated, and so long as the taxing scheme does not impose substantially unequal tax burdens, rough uniformity "with a limited amount of variation is permitted.” Id., at 1210-11 (citations omitted); see also Delaware, L. & W.R. Co.’s Tax Assessment, 224 Pa. 240, 73 A. 429, 430 (1909) (noting Uniformity Clause requires only substantial uniformity, “which means as nearly uniform as practicable in view of the instrumentalities with which and subjects upon which tax laws operate”).

"Scientific formulae, arithmetical deductions and mental contemplations, have small value in making assessments under our practical system of taxation."


Context: The district court properly dismissed the action because Kenner did not complete the prison grievance process prior to filing suit.

holding that "proper exhaustion" under SS 1997e(a) is mandatory and requires adherence to administrative procedural rules

See Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” under § 1997e(a) is mandatory and requires adherence to administrative procedural rules); see also Booth v. Churner, 532 U.S. 731, 734, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (holding that an inmate seeking only money damages must complete any prison administrative process capable of addressing his complaint and providing some form of relief, even if the process does not provide for the recovery of monetary relief).


Context: In the absence of an agreement with the government, the Does would have neither a false history nor an expectation of governmental aid. If the government owed the Does any duty at all, the source of that duty must be the alleged contract.

finding claim contractually based where "[the] duty, if it exists, derives from the contract"

Tucson Airport Auth., 136 F.3d at 647 (finding claim contractually based where “[the] duty, if it exists, derives from the contract”); see also Up State Federal Credit Union v. Walker, 198 F.3d 372, 377 (2d Cir.1999) (finding that the parties’ dispute was contractual in nature and subject to the Tucker Act because, had the parties not entered into the contract, the plaintiff would have no claim against the government); Kielczynski, 128 F.Supp.2d at 160 (rejecting a former covert employee’s argument that the source of his rights was the due process clause and finding instead that his cause of action was ultimately based on his contract with the CIA).

finding that the parties' dispute was contractual in nature and subject to the Tucker Act because, had the parties not entered into the contract, the plaintiff would have no claim against the government


rejecting a former covert employee's argument that the source of his rights was the due process clause and finding instead that his cause of action was ultimately based on his contract with the CIA


Context: Most of Count I can be disposed of summarily. AJi's complaint indicates that she has suffered discrimination on the basis of several protected characteristics, but she pursues only Title VII race discrimination in her brief. Her failure to support the remaining claims with legal argument or authority waives them.

plaintiff waived disparate impact claim alleged in complaint because she did not fulfill her "minimal responsibility of identifying the applicable law and arguing why the facts ... fit into the parameters of that law."

See Reidt v. County of Trempealeau, 975 F.2d 1336, 1341 (7th Cir.1992) (plaintiff waived disparate impact claim alleged in complaint because she did not fulfill her “minimal responsibility of identifying the applicable law and arguing why the facts ... fit into the parameters of that law.”); see also Freeman United Coal Mining Co. v. Office of Workers’ Compensation Programs, 957 F.2d 302, 305 (7th Cir.1992) (“[W]e have no obligation to consider an issue that is ... not developed [ ] in a party’s brief.”).

"[W]e have no obligation to consider an issue that is ... not developed [ ] in a party's brief."


Context: According to the Manual, "When conducting a search where the offender is a cohabitant, the search will entail only the offender's assigned area of the residence, unless the third party agrees to a search of their area by signing [a consent form]." Probation and Parole Manual eh. 3, at 4 (Dec. 1, 1992). The officers searched only the common areas of the residence and the one bedroom Cantley had previously identified as his. Ms. Cantley's consent was not needed to search those areas.

"[T]he parole search may extend to all parts of the premises to which the probationer or parolee has common authority, just as if it were a consent search."

See, e.g., State v. West, 185 Wis.2d 68, 517 N.W.2d 482, 491 (1994) (“[T]he parole search may extend to all parts of the premises to which the probationer or parolee has common authority, just as if it were a consent search.”); State v. Johnson, 748 P.2d 1069, 1073-74 (Utah 1987) (holding warrantless search of common areas of parolee’s apartment, which he shared with his mother, was lawful even though parolee’s mother may not have consented to the search); see also 4 Wayne R. LaFave, Search and Seizure; A Treatise on the Fourth Amendment § 10.10(d), at 778 n. 89 (3d ed. 1996) (“If the ... parolee is sharing living quarters with someone else ... the [warrant-less] search may nonetheless extend to all parts of the premises to which the ... parolee has common authority.”); cf. United States v. Davis, 932 F.2d 752, 758 (9th Cir.1991) (rejecting co-defendant’s argument that officers exceeded scope of warrantless search of probationer’s residence when they searched safe which was under the apparent joint control of probationer and co-defendant, and stating item must be “owned, controlled, or possessed” by probationer in order for item to fall within scope of warrantless search).

rejecting co-defendant's argument that officers exceeded scope of warrantless search of probationer's residence when they searched safe which was under the apparent joint control of probationer and co-defendant, and stating item must be "owned, controlled, or possessed" by probationer in order for item to fall within scope of warrantless search


holding warrantless search of common areas of parolee's apartment, which he shared with his mother, was lawful even though parolee's mother may not have consented to the search


Context: . The Supreme Court has recently reminded bankruptcy courts to follow the statutory text.

Law v. Siegel, — U.S. -, 134 S.Ct. 1188, 1194, 188 L.Ed.2d 146 (2014) (“[I]n exercising ... statutory and inherent powers, a bankruptcy court may not contravene specific statutory provisions.”); see also Gannett v. Carp (In re Carp), 340 F.3d 15 (1st Cir.2003) (holding that a spouse is not necessarily an agent of the debtor); see also First Tex. Sav. Ass’n, Inc. v. Reed (In re Reed), 700 F.2d 986, 993 (5th Cir.1983) (holding that knowledge of prohibited activities is not necessarily the same as fraudulent intent and that “the Code does not allow attribution of intent from spouse to spouse.”). Compare Sachan v. Huh (In re Huh), 506 B.R. 257 (9th Cir. BAP 2014) (en banc) (for purposes of section 523(a)(2), an agent’s fraud is not imputed to the principal unless the principal knew or should have known of the fraud).

"[I]n exercising ... statutory and inherent powers, a bankruptcy court may not contravene specific statutory provisions."


Context: 1 32 Here, all parties seemingly agree, and we concur, that injuries resulting from negligent supervision are not among the tortious injuries for which sovereign immunity has been expressly waived under the Act.

Lopez v. Regional Transp. Dist., 899 P.2d 254, 256 (Colo.App.1994) (stating that "in the absence of specific language . no such waiver may be implied" under the Act), aff'd in part and rev'd in part, 916 P.2d 1187 (Colo.1996); see also Mountain States Tel., 869 P.2d at 1291 ("The language of the [Act] is clear and unequivocal... . [It] confine[s] the cireumstances in which sovereign immunity may be waived to the exceptions specified within the [Act].") (emphasis added); Shandy v. Lunceford, 886 P.2d 319, 321 (Colo.App.1994) (noting that valid waiver under the Act must conform "to the express requirements" of the Act).


noting that valid waiver under the Act must conform "to the express requirements" of the Act


Context: As the Fifth Circuit has pointed out, there are at least four limitations on a prosecutor's discretion with respect to nonstatutory aggravating factors. A jury must find the existence of at least one statutory aggravating factor before it can even consider proposed non-statutory factors, a prosecutor can only argue those nonstatutory aggravating factors for which the defendant has been given prior notice, a nonstatutory aggravating factor itself must conform with due process jurisprudence, and a district judge is required to screen out any irrelevant and unduly prejudicial information a prosecutor may try to introduce to the jury in order to prove a nonstatutory aggravating factor.

holding that "the prosecutor's authority to define nonstatutory aggravating factors is a constitutional delegation of Congress's legislative power"

United States v. Paul, 217 F.3d 989, 1003 (8th Cir.2000) (holding that “the prosecutor’s authority to define nonstatutory aggravating factors is a constitutional delegation of Congress’s legislative power”); See also United States v. Tipton, 90 F.3d 861, 895 (4th Cir.1996)(holding that any delegation of legislative authority was permissible, without deciding whether there was in fact any delegation), cert. denied, 520 U.S. 1253, 117 S.Ct. 2414 (1997); United States v. McCullah, 76 F.3d 1087, 1106-07 (10th Cir.1996), cert. denied, 520 U.S. 1213, 117 S.Ct. 1699, 137 L.Ed.2d 825 (1997).


Context: "[R]egardless of whether the de-clarant is available at trial for cross-examination, a hearsay statement is not ordinarily admissible as substantive evidence."

explaining the abrogation of the "Patterson Rule" that allowed admission of a declarant's out-of-court statement as substantive evidence so long as the declarant was available at trial for cross-examination

Warren v. State, 725 N.E.2d 828, 835 n. 1 (Ind.2000) (explaining the abrogation of the “Patterson Rule” that allowed admission of a declarant’s out-of-court statement as substantive evidence so long as the declarant was available at trial for cross-examination); see also Appleton v. State, 740 N.E.2d 122, 124 (Ind.2001) (summarizing the evolution and problems with the Patterson Rule); Modesitt v. State, 578 N.E.2d 649, 652-654 (Ind.1991) (overruling the Patterson Rule and adopting Federal Rule of Evidence 801(d) that later became codified as Indiana Rule of Evidence 801(d)).


Context: Since Terry, the Supreme Court has reaffirmed that engaging in a stop-and-frisk to prevent a crime from occurring is a valid use of police authority.

"[T]he very point of Terry was to permit officers to take preventive action and conduct investigative stops before crimes are committed, based on what they view as suspicious -- albeit even legal -- activity."

See, e.g., Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (“Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger____”); Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur .... ”); see also United States v. Perkins, 363 F.3d 317, 326 (4th Cir.2004) (“[T]he very point of Terry was to permit officers to take preventive action and conduct investigative stops before crimes are committed, based on what they view as suspicious — albeit even legal — activity.”) (emphasis in original). While this in practice means that officers can detain suspects for conduct that is “ambiguous and susceptible of an innocent explanation,” Terry and its progeny permit reasonable stops in order “to resolve the ambiguity.”

"Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger____"


"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur .... "


Context: Without Williams's statement, the defendant was denied a "substantial factual basis for contending to the jury that [a witness] misidentified him." The Commonwealth should have done the same once it had been put on actual notice by defense counsel of the request for specific favorable evidence.

"the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"

See also Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police”).

"Where . . . there is an explicit request for an apparently very easy examination, and a non-trivial prospect that the examination might yield material exculpatory information," prosecution has obligation to search possible sources for such information, including files of another agency

See, e.g., United States v. Brooks, 966 F.2d 1500, 1504 (D.C. Cir. 1992) (“Where . . . there is an explicit request for an apparently very easy examination, and a non-trivial prospect that the examination might yield material exculpatory information,” prosecution has obligation to search possible sources for such information, including files of another agency).


in some circumstances, prosecutor "should be required to seek access to material and exculpatory evidence" not in possession of prosecutor or police

Cf. Commonwealth v. Donahue, 396 Mass. 590, 596-599 (1986) (in some circumstances, prosecutor “should be required to seek access to material and exculpatory evidence” not in possession of prosecutor or police).


Context: Raul's arguments that Texas law does not allow offset against child support obligations and that the obligations here lack mutuality also fail. Raul did not timely raise these arguments before the bankruptcy court.

"Since this issue was not properly presented to the bankruptcy court, it cannot be raised now for the first time on appeal."

See Galaz I, 480 Fed.Appx. 790 at 792-94 (holding that Raul had waived his mutuality argument by failing to raise it in the bankruptcy court); see also In re OCA, Inc., 552 F.3d 413, 424 (5th Cir. 2008) (“Since this issue was not properly presented to the bankruptcy court, it cannot be raised now for the first time on appeal.”)- Thus, the bankruptcy court did not err in enjoining Raul from enforcing his 2009 Order in state court.


Context: . Preventing the destruction of evidence may also justify dispensing with Fourth Amendment requirements in other contexts.

See, e.g., Richards v. Wisconsin, 520 U.S. 385, 395-396, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997) (failure to comply with the knock-and-announce requirement was justified because “the circumstances . . . show[ed] that the officers had a reasonable suspicion that [a suspect] might destroy evidence if given further opportunity to do so’’); Schmerber v. California, 384 U.S. 757, 770-771, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (warrantless testing for blood-alcohol content was justified based on potential destruction of evidence); cf. United States v. Banks, 540 U.S. 31, 37-40, 124 S. Ct. 521, 157 L. Ed. 2d 343 (2003) (15 to 20 seconds was a reasonable time for officers to wait after knocking and announcing their presence where there was a risk that suspect would dispose of cocaine).

failure to comply with the knock-and-announce requirement was justified because "the circumstances . . . show[ed] that the officers had a reasonable suspicion that [a suspect] might destroy evidence if given further opportunity to do so''


warrantless testing for blood-alcohol content was justified based on potential destruction of evidence


Context: The "gaps" are periods of the recordings when no voices or conversation can be heard, as when the recording occurred in a bar and ambient or background noise is all that is discernable at times. Oslund argues that these "gaps" could show alterations or modifications or reflect times when Russell had moved the recorder to a location to avoid memorializing exculpatory statements by Oslund that could cause an inaccurate perception of the recorded conversation. However, this court has held that gaps in an audiotape affect "the weight of the evidence, not its admissibility."

See also United States v. Ray, 250 F.3d 596, 602 (8th Cir.2001) (gaps in tape recording were not so substantial as to render entire recording untrustworthy and defendant could argue to jury that he was entrapped by informant into making incriminating statements), cert. denied, 535 U.S. 980, 122 S.Ct. 1459, 152 L.Ed.2d 398 (2002); cf. Webster, 84 F.3d at 1065 (finding court did not abuse its discretion in admitting videotape where lens was partially obscured and did not cover all of the actions of those being recorded and the audio was partially unclear because the “infirmities are not so pervasive as to render the tape as a whole untrustworthy”).

finding court did not abuse its discretion in admitting videotape where lens was partially obscured and did not cover all of the actions of those being recorded and the audio was partially unclear because the "infirmities are not so pervasive as to render the tape as a whole untrustworthy"