District court’s denial of pro se defendant’s petition for a writ of audita querela is affirmed as his claim is cognizable under 28 U.S.C. section 2255 and there is no gap to fill in the post-conviction remedies. Read Massey v. US, No. 09-1665 Appellate Information On Appeal from the United States District Court for the Eastern District of Pennsylvania(D.C. No. 09-mc-000022)District Judge: Honorable Harvey Bartle, III Opinion Filed September 11, 2009...
If you do not understand exactly how a scientific device works, it can be much easier to just accept whatever result that device provides. This is often the situation drivers face with the machines law enforcement agencies use to measure blood alcohol concentration (BAC). However, results from Breathalyzers are often much less reliable than you may have been led to believe. Breathalyzers and similar devices require careful, precise calibration and operation....
The Supreme Court ruled today that an Idaho couple can bring a civil action against the Environmental Protection Agency (EPA) to challenge a compliance order, instead of waiting for the EPA to initiate a court action. Federal courts had previously rejected the couple’s claims for lack of subject matter jurisdiction. The compliance order required the Sacketts to remove the fill material and restore the parcel to its original condition, or face civil and administrative penalties....
While it has long been a practice of the United States to deport non-citizens who commit a violent felony, what qualifies as a crime of “violence” has been a moving target. As the High Court’s opinion in Session v. Dimaya explained, the federal statute requiring deportation defines violent crime in a way that is unconstitutionally vague. The defendant in the deportation action, James Garcia Dimaya, was convicted of burglary in California....
On the heels of the momentous #MeToo movement, some lawyers might be wondering if now is the time to start a pay equity practice to help fight to close the gender pay gap. After all, given the dismal statistics that get thrown around, gender pay discrimination cases should sound like shooting fish in a barrel. And for lawyers already in the employment law sector, or those looking to break into it, focusing on pay equity could hit the right niche at the right time....
Last week, amid lofty opinions about excessive force and the dormant commerce clause, we did not have a chance to report on some of the more work-a-day cases the Supreme Court decided. These decisions – all of which were unanimous – don’t implicate constitutional principles necessarily, and aren’t as contentious as some of the Court’s other cases, but hey, they’re important, too. The case so nice, they argued it twice! The question in Henderson, which was, in fact, re-argued, was what happens to a federal felon’s guns....
Earlier this year the FBI notified law firms to be on the lookout for ransomware attacks. With troves of potentially valuable data, law firms can pose a tempting target for hackers. Law firms throughout the country have been victimized. Now, it appears that courts throughout the U.S. should also be on their guard after a cyberattack left the Texas Supreme Court website offline. The Texas Office of Court Administration (OCA), a unique state branch of the Texas Supreme Court, said that sensitive data was not stolen in the attack....
US v. Quintero, 09-2715, concerned a challenge to a conviction of defendant and his getaway driver and girlfriend for bank robbery, and their sentences. In affirming both the conviction and the sentence, the court held that the defendant knowingly and voluntarily waived his right to appeal. The court also held that the co-defendant’s participation in the escape phase of the bank robbery was sufficient to convict her of being an accomplice in accordance with jury instructions....
Conviction for receiving and possessing child pornography is affirmed where: 1) the district court did not err in denying the motion to suppress based on challenge to the validity of search warrant, as even if the warrant application had disclosed the defendant was present in the secretly recorded videos, the magistrate could reasonably assume that a probability of criminal conduct was shown based on invasion of privacy when the video was taken of others in the nude; 2) the warrant was not facially overbroad in allowing a search of storage of digital images; and 3) police did not unlawfully expand the scope of the invasion-of-privacy search into a search of child pornography, and the items were lawfully seized pursuant to the plain-view exception to the warrant requirement....
Defendant’s conviction and sentence for assaulting a federal officer with a dangerous weapon is affirmed where: 1) a district court does not abuse its discretion in refusing to give an instruction on a lesser included offense, where, as here, a rational jury could not have convicted the defendant of the lesser-included offense without finding the element that would convert the lesser offense into the greater offense; and 2) the district court did not commit clear error in finding on sentencing that defendant’s conduct was motivated by the victim’s official status....
In US v. Bonilla, No. 09-1799, the court granted the government’s motion for summary affirmance of defendant’s conviction and sentence for reentering the U.S. after having been deported, holding that 1) the court has never required a district court to make specific responses to points argued by counsel in connection with sentencing; and 2) a prior felony conviction need not be pleaded, proved, or admitted to. ACORN v. US, No. 09-5172, involved an action challenging provisions in several federal appropriations laws barring the distribution of federal funds to ACORN and its affiliates, subsidiaries, and allied organizations....
For African-style hair braiders in the state of Missouri, the recent Eighth Circuit decision striking down the challenge to the state’s licensing requirement means that more work is going to be needed. While hair braiders do not cut hair, the court and state believe that what they do squarely falls within the state’s legal definition of a barber or cosmetologist. In supporting the need for hair braiders to be licensed as barbers or cosmetologists, the state relied on consumer protection and health risks, including inflammation, infection, and hair loss....
The Cat’s Out of the Bag Not All Bad The same prestige. This affects more than pride. Most senior lawyers say they have an easier time generating business under the title of partner. Decent pay. While having equity is, of course, nicer than not having it, a non-equity partnership should still come with a comfortable salary. Less time rainmaking. Partners are forced to spend an increasing amount of time generating business, rather than practicing law....
In defendant Republic of Argentina’s appeal from the district court’s orders of attachment and execution entered in late 2008 over Argentine social security funds, the order is reversed where: 1) nonparty Argentine social security administration was clearly affected by the order and thus had standing to appeal; and 2) the funds were not subject to attachment because they were not being used for a commercial activity in the United States as of the effective date of the Argentine legislation transferring the funds to the control of the administration....
Lex, the drug-sniffing dog, has been a very bad boy. No, Lex didn’t bite anyone. He never peed on the carpet or tore apart an officer’s shoe. Rather, Lex sniffed drugs on just about everyone he encountered – whether there were drugs present or not. Lex’s nose was just about as accurate as a coin toss, according to the Seventh Circuit. Lex’s poor drug-sniffing skills weren’t bad enough to remove probable cause, however....
In a civil rights action for false arrest and excessive force, summary judgment for defendants based on qualified immunity is affirmed where: 1) officers reasonably believed that the person arrested was the person sought; and 2) the officers’ use of force was not excessive, as the amount of force the defendants used to restrain defendant was reasonable, and it was not clearly established that defendants had a constitutional duty to identify themselves after they initially immobilized but before they fully restrained him....
Federal jurisdiction is a great thing – when you can get it. And all too often, attempts to get it are too clever by half. From Michigan comes the allegation that making “children cook, clean, and do the laundry,” and beating them if they don’t, constitutes “forced labor” under 18 USC § 1589. The Sixth Circuit ruled Monday in U.S. v. Toviave that state-level child abuse doesn’t violate federal law – or, at least, it’s not “forced labor....
Today, the Tenth Circuit decided one case regarding a public school teacher’s First Amendment right against retaliation for advocating disabled students’ rights, and two criminal matters concerning, respectively, a capital habeas petition and a Sentencing Guidelines issue. In Reinhardt v. Albuquerque Pub. Schs. Bd. of Educ., No. 09-2005, plaintiff brought First Amendment and Rehabilitation Act claims based on defendant public school system’s reduction of plaintiff to a standard contract to work with special education students on the ground that her caseload did not support an extended contract....
A Florida appeals court joined other states in requiring police to obtain warrants before using a controversial cell phone tracker. A Stingray simulates a cell phone tower, transmitting cellular signals to and from nearby cell phones. When police use the device, they can follow phone signals to their location. In State of Florida v. Sylvestre, the court said police sidestepped the warrant requirement when they tracked down an accused murderer. They found him, but this time the bad guy got away....
In plaintiff’s 42 U.S.C. section 1983 action against state officials involved in the management of a Illinois Beach State Park and the state agency that operates the park charging infringement of free speech, district court’s grant of summary judgment in favor of defendants is affirmed as the denial of display rack space for plaintiff’s pamphlets warning of asbestos in the park may risk the appearance of endorsing an opinion that the defendants do not believe, and if they were to display their own pamphlet countering plaintiff’s, this would have the effect of giving it legitimacy which the defendants are not obligated to acknowledge....
