Posts

When must an error be plain to qualify as a plain error? Federal Rule of Criminal Procedure 52(b) says that appellate courts can consider a “plain” error, even if it wasn’t brought to the trials court’s attention. In Johnson v. United States, the Supreme Court held that, when the governing law on an issue is settled against the defendant at the time of trial, but then changes in the defendant’s favor by the time of appeal, “it is enough that an error be ‘plain’ at the time of appellate consideration....

J.P. Morgan the longtime teacher’s pet, usually found sitting across from the President at meetings, has in a symbolic shift, been relegated to the corner, reports The Wall Street Journal (subscription only). This figurative demotion comes presumably as a result of civil investigations into the mortgage-backed securities that caused, in large part, the financial crisis of 2008. That hasn’t tarnished J.P. Morgan’s reputation among investors and analysts however, as two-thirds of the mortgage-bond liability arise from Bear Stearns and Washington Mutual, which J....

In an action against NASCAR and an affiliated company that owns multiple racetracks, alleging violation of federal antitrust laws by not sanctioning a Sprint Cup race at plaintiff’s racetrack and preventing them from purchasing other racetracks that already host such a race, summary judgment in favor of defendants is affirmed where: 1) the district court did not abuse its discretion in excluding two experts’ reports and deposition testimonies as being unreliable under Daubert; 2) without expert testimony, plaintiff lacks the ability to define the relevant markets necessary to succeed on its claims; and 3) plaintiff cannot demonstrate that NASCAR and the affiliate are legally capable of conspiring with each other or that its failure to obtain a Sprint Cup race constitutes an antitrust injury....

A parent would understandably be upset if she found that her child had a romantic or sexual relationship with his or her teacher, but can the parent (or child) bring a deliberate indifference suit against the school under Title IX for failing to prevent the abuse? The answer, according to the Seventh Circuit Court of Appeals, depends on how much school officials actually knew. The Seventh Circuit Court affirmed dismissal of a Title IX sex discrimination case against a Wisconsin school district on Monday, finding that school officials didn’t have actual knowledge of a 26-year-old teacher’s inappropriate relationship with her 14-year-old student....

The Tenth Circuit affirmed a lower court’s ruling that two police officers were not immune from suit when they taser-shot a mentally ill man at least ten times within two minutes. This case doesn’t come as much of a shock as other courts have recently acheived similar rulings. For example, the Fourth Circuit recently found no qualified immunity for police officer who tased without reason. The plaintiff brought a wrongful death suit against Albuquerque police officers and related defendants over the death of her son, Jerry Perea....

Petition for review of a BIA’s dismissal of IJ’s denial of Uruguayan citizen’s motion to reopen denied Ramos-Olivieri v. Attorney General, 09-2558, concerned a challenge to a Uruguayan citizen’s petition for review of a BIA’s dismissal of an appeal of an IJ’s denial of a motion to reopen. In denying the petition, the court held that an evidentiary hearing was not called for and the Board acted within its discretion in denying his motion to reopen as petitioner does not even assert that he was eligible for any form of relief from removal prior to his marriage in March 2007....

In an action involving payments related to a lease and recognition agreement, district court judgment in favor of plaintiff is vacated and remanded where: 1) New York’s Uniform Commercial Code does not prohibit defendant from asserting constructive eviction as a defense to plaintiff’s claims arising from the lease; 2) the estoppel certificate in the recognition agreement does not bar defendant’s constructive eviction defense if defendant was unaware of the faulty condition of the building pad when it executed the parties’ recognition agreement and its lack of awareness was reasonable at the time; and 3) if defendant was constructively evicted, the lease was terminated and defendant was relieved of its obligation to pay rent under the “hell or high water” clause of the parties’ recognition agreement....

There are plenty of perks that came with being a Gen Y child: Goonies, slap bracelets, and Mall Madness. The first incarnation of New Kids on the Block. And participation ribbons. Y-ers get a pat on the back just for showing up. Wednesday, the Second Circuit Court of Appeals decided to apply the “everyone wins” spirit of the We Generation to the most important intellectual property decision of our time: the Louboutin-Yves St....

John Larson did the time, but he apparently can’t pay the fine. And who could? It’s a $61,534,027 tax penalty, but who’s counting in Larson v. United States of America? The U.S Second Circuit Court of Appeals counted, but it doesn’t really care. The appeals court dismissed his challenge to the penalty, saying it didn’t have jurisdiction. No Day in Court Larson was convicted and served time for tax evasion after creating tax shelters for high-wealth individuals....

In US v. Alston, No. 10-1478, the court affirmed defendant’s conviction and sentence for possessing with intent to distribute more than 50 grams of cocaine base, holding that 1) In the context of this case, the officer who performed the search at issue had more than a general suspicion of wrongdoing; 2) the district court did not err in excluding defendant’s proffered hearsay evidence, because it was not all that probative of the officer’s character for truthfulness, even if it was true that the detective lied to his superiors; and 3) defendant did not show why the district court would have altered his sentence based on the burden placed on defendant’s dependents by his obligation to pay per quarter....

District court’s order denying defendant’s motion to suppress the firearm evidence obtained during a search of his residence conducted pursuant to a state search warrant for probation violations is reversed and remanded where: 1) the district court erred in holding that the protective sweep of defendant’s apartment comported with the Fourth Amendment; 2) the government failed to present its protective sweep argument under the first and less stringent Buie test; and 3) even had it been preserved, a theory that the protective sweep occurred incident to an in-house arrest and involved an area immediately adjoining the place of defendant’s arrest fails on its merits....

Conviction for drug crimes is affirmed where: 1) the district court did not abuse its discretion in refusing to authorize a subpoena duces tecum for previous traffic citations issued by police officer, as subjective intention plays no role in Fourth Amendment analysis and the burden of producing the records outweighed the possible relevance for documents; 2) the court did not err in rejecting defendant’s challenge to the constitutionality of the windshield obstruction statute; and 3) the court did not err in denying defendant’s motion to suppress evidence as the record supports the conclusion that defendant voluntarily consented to the search....

Defendant’s firearm possession conviction is reversed where the district court failed to inform defendant, prior to accepting his guilty plea, of the maximum sentence he could face if found to be an armed career criminal under 18 U.S.C. section 924(e), or of the court’s obligation to calculate the applicable Sentencing Guidelines range and to consider such range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. section 3553(a)....

Crack Cocaine Appeal Dismissed In US v. Scott, No. 09-3549, the court dismissed defendant’s appeal from his sentence for knowingly possessing five grams or more of cocaine base with intent to distribute, holding that 1) defendant did not allege that he entered into either the plea agreement or the appeal waiver unknowingly or involuntarily, and nothing in the record suggested that he did so; and 2) because defendant’s sentence was unaffected by 18 U....

Years of headline after headline of police shootings, prosecutors declining to bring charges, and protestors taking to the streets has finally forced a discussion over police use of force. And one of the most important components of that discussion is the concept of “qualified immunity.” The little-known and rarely discussed issue is slowly becoming a talking point in the Democratic presidential primary battle. Defining Qualified Immunity The concept of qualified immunity came about via the Supreme Court in 1967, which carved out a protection from civil liability for government employees who were acting in “good faith” when they violated someone’s civil rights....

Abdalla Nimer and his wife, Cathy Fobes, own land where they operate their meat snack business. (Think beef jerky.) They began constructing buildings on their land because they wanted to expand the business to include butchering. Their land, however, was zoned for residential use and the Nimers didn’t get zoning certificates before starting construction. The Litchfield Township Board of Trustees sued the Nimers in the Medina County Court of Common Pleas seeking injunctive relief....

The Ninth Circuit has ordered a new trial in the Stairway to Heaven copyright infringement case. And in case you’re late to the party on this one, it involves a claim by the heirs of Randy California of the band Spirit, and a four-bar riff in their song Taurus. Though the two songs date back to the late 60s and early 70s, the case was not filed until 2014, as Mr....

People still rob banks? You bet they do – and they get caught. Police in Tulsa, Oklahoma were confronted with a spate of bank robberies they linked to the Hoover Crips, a franchise of the Crips street gang. They also had reason to believe the appellant in this case, Dejuan Hill, was involved. A federal grand jury indicted Dejuan on 10 counts, including robbery and conspiracy, for a series of bank robberies that occurred between 2009 and 2011....

Unionization Efforts Already Underway At Alphabet, Inc., meanwhile, employees Parul Koul and Chewy Shaw wrote an op-ed in the New York Times stating that “. . . 226 of us have signed union cards with the Communications Workers of America — the first step in winning a recognized bargaining unit under U.S. law. In other words, we are forming a union.” Koul and Shaw are the Executive Chair and Vice Chair of the Alphabet Workers Union, respectively....

Hey, we all do it, right? We reuse old legal documents to save time and money, typically clients’ money. And once in a while, you’ll forget to change a name or a gender-based pronoun somewhere around page 12. It happens. But this goes a bit further than that: The Second Circuit has been copying and pasting what is arguably a misstatement of an immigration standard – social visibility – in a long series of unpublished opinions....