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Defendant’s drug distribution sentence is affirmed where a district court may not grant a motion for a reduction in sentence premised upon Amendment 706 to the Sentencing Guidelines if the defendant seeking the reduction was originally sentenced as a career offender. Read US v. Perdue, No. 08-4358 Appellate Information Submitted: May 19, 2009 Decided and Filed: July 14, 2009 Judges Opinion by Judge Gilman Counsel For Appellant: Andy P. Hart, Office of the Federal Public Defender, Toledo, OH...

Defendant’s conviction on two counts of illegal possession of a firearm and ammunition under 18 U.S.C. section 922(g)(1) is affirmed in part and remanded in part where: 1) district court committed plain error in convicting and sentencing defendant on both counts charged under section 922(g)(1), as defendant’s possession of both a firearm and ammunition, seized at the same time in the same location, supports only one conviction and sentence under the section; and 2) defendant has met his burden to show that his substantial rights were affected by his unauthorized conviction and sentence on both counts charged under section 922(g)....

District court’s sentence of defendant to 48 months’ imprisonment for conspiracy to possess with intent to distribute drugs is vacated and remanded as the court committed plain error by failing to give defendant the benefit of the downward departure that it granted in exchange for his substantial assistance in the prosecution of other offenders. Read US v. Vazquez-Lebron, No. 08-3222 Appellate Information On Appeal from the United States District Court for the Middle District of Pennsylvania...

A Whataburger worker in Lewisville, Texas was fired for refusing to serve two off-duty police officers, creating a public relations nightmare for the company and raising interesting questions about how to handle rogue employees. The fast food joint came under fire on Twitter after news of the employee’s refusal to serve the officers circulated. Whataburger immediately responded on social media. “We would never condone this action and this is completely unacceptable....

District court’s denial of defendant’s petition for habeas relief, claiming that the way in which the bystander venire was selected violated his constitutional right to have his jury selected from a fair cross section of the community, is affirmed as the sheriff exercised his responsibility under the Illinois bystander statute by rounding out a small portion of the venire by calling upon supervisors in government offices to furnish potential jurors. Read White v....

The same sex marriage cases before the Supreme Court this month feature of lot of legal star power. David Boies and Ted Olson — the attorneys who famously faced off in Bush v. Gore — are leading a bipartisan challenge to California’s Proposition 8. Paul Clement, one of the leading litigators of our time, is defending the Defense of Marriage Act. We knew these cases would be full of interesting twists and turns, but we didn’t expect any twists or turns from the amicus briefs....

The always insightful Seventh Circuit employed the rarely used Federal Rule of Evidence 807 “residual hearsay” rule recently to allow phone evidence connecting a man to the illegal sale of a gun used in a shootout with Indiana police. The analysis, in our view, could have gone either way – especially when looking at the authoring judge’s language. The Shootout and Phone Parolee Marcus Hayden violated his parole and engaged in a gun battle with police in Indiana that left him dead....

From rushing to see new homes on the market to the tedious applications for financing to the nail-biting of waiting for an offer to be accepted, anyone who has purchased a home knows the emotional ups and downs of the process. Unfortunately, the real stress can come much later. Your offer is accepted, the mortgage company approved the loan, and you close in a few weeks. Things look great. Enter the opposition: the mortgage underwriter....

Hobby Lobby happened: Employers can request an exemption from the contraceptive coverage mandate portion of Obamacare if the closely held corporation’s owners’ religious beliefs would be burdened by the mandate. But it wasn’t just the coverage requirement that burdened these owners’ religious beliefs. Later that week, the Court issued an order in the Wheaton College appeal, blocking enforcement of the religious accommodation procedures against the college. The college argued that the procedures amounted to facilitating the religiously objectionable conduct (providing birth control)....

A federal judge certified a class-action lawsuit to protect unaccompanied immigrant children in government detention centers. In J.E.C.M. v. Hayes , the plaintiffs seek the “prompt release” of immigrant children and to reunite them with their families. They say current policies and practices violate the Due Process rights of children waiting for immigration proceedings. It is not the first lawsuit to allege wrongful conduct at America’s border crossings, where an increasing number of migrants wait to enter the country....

Cook v. Rockwell Int’l Corp., No. 08-1224, involved property owners’ class action suit against the facility operators of a former nuclear weapons plant under the Price-Anderson Act (PAA), alleging trespass claims arising from the release of plutonium particles onto their properties. The court reversed judgment for plaintiffs where 1) district court clearly had subject matter jurisdiction under 28 U.S.C. section 1331; 2) because the jury was not properly instructed on an essential element of plaintiffs’ PAA claims, the verdict must be set aside and the case remanded; 3) the issue of whether federal nuclear safety standards preempt state tort standards of care under the PAA is remanded; 4) the Colorado Supreme Court would not permit recovery premised on a finding that an interference, in the form of anxiety or fear of health risks, is “substantial” and “unreasonable” unless that anxiety is supported by some scientific evidence, and the district court erred in concluding otherwise; 5) defendants failed to establish that any of the state or federal standards referenced in their proposed jury instructions overcome the general rule that the jury must determine whether a given interference is “unreasonable” by weighing the harm against the utility of the interference; 6) on remand, plaintiffs are required to prove the plutonium contamination caused “physical damage to the property” in order to prevail on their trespass claims; and 7) district court did not err in instructing the jury that it could award punitive damages in the case....

There’s never a shortage of prisoner appeals in the Eighth Circuit. Here’s a case involving a prisoner who suffered from active tuberculosis and brought suit against the prison’s nurses for failing to recognize his illness. Prisoner Marchello McCaster was admitted to the Ramsey County Correctional Facility for a 58-day sentence. At the time he was admitted, he had active TB. His condition got worse in prison. Eventually, he was transferred to a hospital ER days before his prison release....

DNA evidence can cut both ways – for conviction or exoneration. In one Nebraska case, it cut deep for exoneration. Six defendants were wrongfully imprisoned for another man’s crime before DNA evidence freed them. But the “Beatrice Six” got their payback when a trial court handed them a $28 million judgment against a small Nebraska County. The U.S. Eighth Circuit Court of Appeals said it was an “obvious case” and affirmed in Dean v....

Flanory v. Bonn, No. 09-1161 concerned a pro se prisoner’s section 1983 suit against various prison officials and others claiming violation of his Eighth Amendment right when he was placed on room restriction and lost his indigent status which caused him to be without toothpaste for almost one year, for his refusal to participate in a GED program, which he had already completed and obtained. In reversing the district court’s dismissal of the complaint for failure to state a claim, the court held that plaintiff has made allegations which satisfy the objective and subjective components required for an Eighth Amendment violation as he has alleged that he was completely denied certain hygiene items and that he specifically was without toothpaste for a period of 337 days, and he also alleged that defendants were aware that he was without toothpaste and were deliberately indifferent to his hygiene needs....

In plaintiff’s suit claiming negligence in a heart operation that defendant-doctor performed, summary judgment for doctor on the ground that Kentucky’s one year statute of limitations for medical malpractice suits had run is reversed and remanded as there is a factual dispute as to whether plaintiff knew or should have known he had a claim after the conversation with a second doctor, and thus, this issue should be referred to the jury....

The Eighth Circuit ruled in one ERISA case and another involving criminal sentencing today. Carpenters Dist. Council v. JNL Const. Co., No. 08-2283, was an ERISA action on behalf of certain pension funds against a construction company claiming that defendants failed to contribute union employees’ fringe benefits to the funds as required by collective bargaining agreements. The court of appeals reversed the district court’s grant of summary judgment for plaintiffs, holding that plaintiffs did not produce sufficient evidence to show the absence of trialworthy issues on the issue of whether defendant corporation was used to perpetrate a fraud....

In a case involving preemption of the Wisconsin Uniform Sales Act, Wis. Stat. section 100.30, by the Sherman Act, denial of a motion by an association of Wisconsin gasoline dealers for leave to intervene as a matter of right and permissively is vacated where: 1) appellant has an interest in limiting price competition; 2) motion to intervene was made in timely manner; and 3) even if appellant were not able to demonstrate impediment for purposes of intervention as a matter of right, permissive intervention may be satisfied by showing applicant’s claim or defense and the main action have a question of law or fact in common....

When you go to a Harry Potter festival, you expect magic, not fraud. Unfortunately, for one city and many vendors, the organizer of the most recent Warriors and Wizards Festival in Jefferson, Wisconsin, couldn’t summon enough credit to pay vendors and the city after the event. As a result, he was recently arrested and charged criminally for passing bad checks and bouncing credit card payments he owed in connection with the Warriors and Wizards Fest....

An Illinois lawyer who ’earned’ $34,500 on his original investment of $60,000 has been ordered to repay his profits from the ill conceived pay-day con. The lawyer had made the money through a Ponzi scheme orchestrated by Impact Payment Systems, LLC. He’s not the only one who was schnookered out of money. Over $47 million was raised by the owner of Impact from about 120 different investors for the purposes of helping Impact get off the ground only to later crash and burn....

Petition for review of a decision denying plaintiff’s motion to reopen his removal proceedings following expiration of the period for voluntary departure is granted and the order vacated and remanded where the Agency incorrectly assumed that plaintiff’s failure to depart timely from the United States conclusively barred an adjustment of his status and thus may have led it to decline to consider whether to exercise its discretionary sua sponte authority to reopen his removal proceedings....