Posts

US v. Diaz-Jimenez, 10-1988, concerned a challenge to the district court’s imposition of a sentence of 21 months’ imprisonment, in a prosecution of defendant for being present in the United States illegally. In reversing, the court remanded for resentencing as there was a serious breach of the plea agreement that defendant be recommended a sentence at the bottom of the guidelines range of 18 months, and the defendant is also entitled to be resentenced by a different judge....

In US v. Iron Hawk, No. 09-3081, the court of appeals affirmed defendant’s conviction for assault resulting in serious bodily injury to a child, holding that 1) the lack of direct evidence demonstrating that defendant assaulted the victim was not dispositive; 2) the testimony from the medical professionals presented by the government provided a sufficient basis for the jury to conclude that the victim’s serious injuries were caused by defendant; and 3) even if one doctor’s testimony was not admissible, the error was harmless....

In a 42 U.S.C. section 1983 action alleging excessive force by an officer in performing an arrest, judgment for defendants is affirmed where: 1) defendant-officer’s use of force was reasonable under the circumstances; 2) the district court adequately gave plaintiff’s counsel an opportunity to make a prima facie showing that one of defendant’s peremptory challenges was made on the basis of race; and 3) because defendant was permitted to provide a detailed description of a preliminary breath test device, any improper showing of the device was merely duplicative of other evidence presented at trial....

In an action under the Americans with Disabilities Act against a public transit authority for failure to accommodate sight-impaired passengers, judgment for plaintiffs is reversed where the authority complied with Department of Transportation regulations, and had no obligations beyond doing so. Read George v. Bay Area Rapid Transit, No. 07-15661 Appellate Information Argued September 11, 2008 Submitted August 5, 2009 Filed August 13, 2009 Judges Opinion by Judge O’Scannlain Counsel...

In an inmate’s 42 U.S.C. section 1983 action against an officer at a prison facility claiming that the officer attacked him without justification, jury verdict in favor of plaintiff-inmate is affirmed where: 1) the evidence amply supports the jury’s verdict that the officer violated plaintiff’s Eighth Amendment rights as he attacked the plaintiff for the malicious purpose of causing harm; 2) jury’s award of $75,000 was rationally connected to plaintiff’s evidence of pain and suffering; and 3) jury’s award of $125,000 in punitive damages is not excessive and the jury heard ample evidence that the defendant acted with the malicious desire to cause plaintiff harm....

You may have noticed there are plenty of legal issues to report on lately. Fact-checks are increasingly popular. Articles that were traditionally considered too in-depth or technical to make it into the paper or news broadcasts are proliferating online. We are seeing the law under public scrutiny like never before. With this trend comes opportunity. In marketing your firm, it always helps to get a quote or two on a legal topic in your wheelhouse in the press....

Seventh Circuit Judge Terrence Evans died from idiopathic pulmonary fibrosis and acute respiratory distress syndrome last week at the University of Chicago Medical Center. He was 71. Judge Evans, a native of Milwaukee, Wis., received his BA and JD from Marquette University. After graduation, he clerked for Justice Horace Wilkie on the Wisconsin Supreme Court before working both in private practice and as a district attorney. He had served on the federal bench since 1980....

Is a compilation album sufficiently original to merit copyright protection? It’s a provocative question that has rattled courts across the country, including the U.S. Supreme Court and the Eighth Circuit Court of Appeals. Ministry of Sound has brought the issue back into the limelight with its recent lawsuit against Spotify. The electronic music giant contends that Spotify users are creating playlists on Spotify that are rip-offs of their compilation albums....

In a dispute involving an application for disability insurance benefits and Supplemental Security Income payments, district court judgment is reversed where the claimant had since died of lung cancer and thus the ALJ’s determination that her complaints regarding her pulmonary condition were not credible should be remanded for further proceedings, including a determination as to whether claimant suffered from lung cancer at the time the ALJ discounted her claims. Read Minor v....

The Ninth giveth, and the Ninth taketh away. Seven days after releasing the Veoh decision, which buttressed the DMCA Safe Harbor protections by extending protection to providers that know that they host copyrightable material and that their services could be used for infringement, the same three judges trimmed away DMCA protections in the isoHunt case. In both Veoh and isoHunt, a company made money off of advertising on a site full of user-submitted content, much of which infringed upon others’ copyrights....

While homelessness is a problem throughout many parts of California, it is particularly acute in Los Angeles. One LA neighborhood infamous for homelessness is “Skid Row,” an area just east of downtown that has been home to many of the city’s unhoused since at least the 1930s. The problem of homelessness in LA also hits its Black population hardest. According to Los Angeles County data, Black people in LA County account for 42% of its homeless residents despite only making up 8% of its total population....

In an appeal from the district court’s affirmance of the bankruptcy court’s order requiring a liquidating trust to pay post-petition attorneys’ fees on a claim that stemmed from a pre-petition indemnity agreement, the judgment is affirmed where such claims are categorically allowable. Read Ogle v. Fidelity & Deposit Co. of Md., No. 09-0691 Appellate Information Argued: October 15, 2009 Decided: November 5, 2009 Judges Opinion by Judge Jacobs Counsel For Appellant:...

In an action challenging the constitutionality of Proposition 8, a California ballot initiative restricting the definition of marriage to the union of a man and a woman, denial of a prospective intervenor’s application to intervene is affirmed where the existing parties would adequately represent its interests. Read Perry v. Prop. 8 Official Proponents, No. 09-16959 Appellate Information Argued and Submitted November 4, 2009 Filed November 19, 2009 Judges Opinion by Judge McKeown...

In a rare legal request, prosecutors in the Paul Bergin trial asked the Third Circuit Court of Appeals for “the extraordinary remedy” of having the case reassigned to another judge because of his alleged judicial bias, according to The Record. “Regrettably, the District Court’s ability to remain impartial can reasonably be questioned due to a number of statements and actions before, during, and after trial,” prosecutors wrote in a brief to the Third Circuit....

Abasi Baker’s Fourth Amendment rights were probably violated. He was convicted of seven counts of robbery, the use of a firearm in relation to a crime of violence, and of being a convicted felon in possession of a firearm. The conviction was made possible after investigating officers, without a warrant, put a GPS tracker on his girlfriend’s car. He has an interesting suppression argument - especially in light of United States v....

In addition to electing people in the midterm elections, voters also say yes or no to ballot questions. This year’s midterms are unusually heated as the result of partisan divisions, so it might come as a surprise that the number of ballot measures facing voters is one of the lowest in the last 22 years. According to Ballotpedia, a nonpartisan and nonprofit online encyclopedia, the number of ballot questions this year is the second lowest among general and midterm elections since 2000....

Biometrics are a quick and easy way to determine identification, which is why fingerprints, faceprints, and even vocal cadence have become a popular way to provide an additional level of security both online and in secure facilities. But while biometric data can be useful for unlocking your smartphone or providing additional security at company headquarters, it is also particularly vulnerable to cyberattacks. If the data is compromised, it’s a lot easier to change a password than your fingerprints....

Murder and Firearm Convictions Affirmed In US v. Begay, No. 07-10487, the court affirmed defendant’s first-degree murder and using a firearm during a crime of violence in violation where there was sufficient evidence to establish premeditation because: 1) the jury could reasonably infer that defendant got a gun from under the back seat and then returned to shoot the victims; 2) the jury could reasonably infer that defendant had enough time to become fully conscious of his intent to kill and to consider the killing; and 3) defendant failed to meet his burden of production with respect to the issue of whether he was provoked to kill....

District court’s conviction of defendant for tax evasion and conspiracy to defraud the United States is affirmed where: 1) upholding the government’s inclusion of multiple years of evasion in a single count was proper; and 2) the government’s charge was not impermissibly duplicitous because the statutory language does not prohibit the government’s decision to charge defendant for multiple years in one count and because analysis of the concerns traditionally associated with duplicitous charges demonstrates that defendant was not prejudiced by that decision....

Carton v. Gen’l. Motors Acceptance Corp., No. 09-2906, involved an action against defendant arising out of injuries plaintiffs sustained when they were struck by a leased vehicle on which defendant held the lease. The court of appeals affirmed the dismissal of the action on the grounds that 1) because Iowa law applied to plaintiffs’ claims, and Iowa law did not impose a $50,000 damages cap on plaintiffs’ claim, diversity jurisdiction existed; 2) absent any direct negligence or criminal wrongdoing by defendant, the Graves Amendment protected defendant from owner liability during the period of the lease; and 3) the driver’s financial irresponsibility and failure to obtain insurance did not pose an unreasonable risk of physical harm to others....