Defendant’s conviction for traveling in interstate commerce and failing to register or update his sex offender registration in violation of the Sex Offender Registration and Notification Act (SORNA) is affirmed where the fact that defendant had no actual notice of SORNA was not sufficient to render his prosecution pursuant to that statute a violation of his due process rights. Read US v. Hester, No. 08-4665 Appellate Information Submitted: June 16, 2009...
District court’s conviction of defendant pursuant to his unconditional guilty plea to possession of a firearm by a felon is affirmed where: 1) the district court did not abuse its discretion in holding that a potential change in Fourth Amendment law posed by Gant did not constitute a fair and just reason for permitting defendant to withdraw his guilty plea; and 2) defendant’s sentence was based on reliable information and was substantively reasonable....
District court’s sentence and conviction of a defendant for possessing five grams or more of crack cocaine with intent to distribute and unlawful possession of a firearm in furtherance of a drug trafficking crime is affirmed where: 1) the affidavit was not so lacking in probable cause that the officer could not have believed the warrant was valid; 2) jury had sufficient evidence to conclude that the gun was possessed in furtherance of the drug trafficking crime; and 3) defendant’s argument that the minimum ten-year sentence to which he was subject on the underlying drug trafficking crime rendered him exempt from section 924(c)’s consecutive sentence scheme is foreclosed by prior holding in Easter....
In a prosecution for being a felon in possession of a firearm, denial of defendant’s motion to suppress evidence is reversed where defendant did not waive his Fourth Amendment expectation of privacy in a closed container in which federal law enforcement discovered the firearm at issue. Read US v. Monghur, No. 08-10351 Appellate Information Argued and Submitted May 4, 2009 Filed August 11, 2009 Judges Opinion by Judge Tallman Counsel...
In an action by the receiver of a foundation found to have engaged in fraudulent investment sales to recover commissions paid to the foundation’s salespersons, judgment for Plaintiff is affirmed, where the charitable gift annuities sold by Defendants were investment contracts under federal securities law. Read Warfield v. Bestgen, No. 07-15586 Appellate Information Argued October 23, 2008 Filed June 24, 2009 Judges Opinion by Judge Thomas Counsel For Appellants: Burton M....
Justice Seamus McCaffery, suspended by his colleagues in the wake of a pornographic email scandal, resigned in October. It seemed like a sad end to the man’s long career in public service and on the bench. And to some, it seemed like a bit of an overreaction. (Though, on the other hand, if the extorting-a-fellow-justice claims were true, forced retirement was exactly what he deserved.) Overreaction or not, how’s he doing now?...
Every state has laws against animal cruelty. But until recently, no federal law governed animal abuse. The Preventing Animal Cruelty and Torture Act went into effect Nov. 25, for the first time making animal cruelty a federal crime. Punishment under the new law for people who abuse animals includes fines and prison sentences of up to seven years. The new law is the latest step in federal regulations to protect animals....
In plaintiff’s ERISA action, a decision upholding the benefits determination of defendant-insurance company denying plaintiff’s claim for long-term disability benefits is affirmed as plaintiff received a full and fair review of her claim and defendant’s benefits determination was not arbitrary and capricious as it was supported by substantial evidence. Read Balmert v. Reliance Standard Life Ins., Co., No. 08-4433 Appellate Information Argued: December 1, 2009 Decided and Filed: February 5, 2010...
An independent journalist’s petition for permission to intervene to challenge a protective order that prohibited public disclosure of confidential voluminous materials relating to citizen complaints against the officers after a plaintiff’s settlement against the city of Chicago and several members of its police department, district court’s order simultaneously granting the journalist’s request to intervene and lifting the order in its entirety is vacated because the petition to intervene should have been dismissed for lack of standing where: 1) the controversy originally supporting the court’s jurisdiction no longer existed at the time the court acted on the petition; 2) the parties had settled; 3) the case was dismissed with prejudice; and 4) neither plaintiff nor the city asked the court to revisit and modify the terms of the protective order postjudgment....
Biometric data, including fingerprints and facial scanning technology, can help companies improve security. A company may require an employee to go through a retina scan to enter a secure location, as one example. They may also require employees to identify themselves with a fingerprint scan on their smartphone before accessing confidential company information online. But where and how that biometric information is stored must be done thoughtfully to avoid liability. States currently have a variety of laws regarding the capture and storage of biometric data....
In a murder prosecution, a denial of petitioner’s habeas petition is affirmed where: 1) the prosecution’s justification for striking certain jurors based on their prior experiences with the criminal justice system were legitimate and not pretextual; 2) another prospective juror’s reaction during voir dire was uniquely cynical and could plausibly indicate bias in favor of defendants who did not have wealth; and 3) another juror’s attitude toward law enforcement, not his race, was the determining factor in the prosecutor’s decision to strike him....
The Supreme Court denied Georgia murderer Andrew DeYoung’s motion for stay of execution on Wednesday. DeYoung’s case has been the subject of national headlines after a Fulton County judge ordered the state to videotape the execution to gather evidence in Death Row inmate Gregory Walker’s appeal claiming that pentobarbital causes unnecessary pain and suffering in the lethal injection process. Although the execution was originally scheduled for Wednesday, July 20, The Atlanta Journal-Constitution reports that the Georgia Department of Corrections delayed the DeYoung execution 24 hours to address the videotaping issue....
A federal appeals court said a mother failed to exhaust administrative remedies before she sued a school district for isolating and restraining her autistic child. Kristine McCauley sued Francis Howell School District, alleging that teachers put physical restraints on her boy at school for two years before she found out about it. She then removed her child from the district and sued under the Individuals with Disabilities Education Act and other laws....
The Seventh Circuit decided a tax matter involving tax deductions of an S corporation, criminal matters, and 42 U.S.C. section 1983 cases involving sex offender registration requirement. In US v. Corner, No. 08-1033, the court faced a challenge to the district court’s holding that, in light of US v. Welton, district courts are not entitled to disagree with U.S.S.G section 4B1.1, in sentencing defendant to 188 months for possession of more than five grams of cocaine with intent to distribute as a career offender....
In US v. Robinson, No. 09-1925, the court of appeals vacated defendant’s sentence for possession of a firearm as a previously convicted felon, holding that the district court clearly erred in finding that defendant had stipulated to the requisite knowledge, or reasonable cause to believe, that the person knocking on his door was an officer. In US v. Adamson, No. 09-2185, the court affirmed defendants’ convictions and sentences for conspiracy to distribute and possession with intent to distribute 500 grams or more of methamphetamine and five kilograms or more of cocaine, holding that 1) the district court properly considered the relevant conduct for which defendant was responsible in comparison to other members of the organization and did not commit clear error in its factual determination that defendant’s role was not minor; 2) defendants were active, necessary, and well-compensated members of the conspiracy, and their roles as couriers did not necessarily entitle them to the minor role adjustment; 3) the presence of firearms in the garage where defendant received drugs and dispatched large sums of money to the west coast made the fact of his involvement in the drug conspiracy more probable and evidence of this was thus properly admitted; and 4) the district court did not clearly err in imposing a three-level enhancement for his role in the offense....
Daniel Latner got a text message that apparently offended him. “It’s flu season again,” his health care provider texted. It invited him to come in for a flu shot. Instead of getting a shot, he filed a lawsuit. In Latner v. Mount Sinai Health System, it seemed like no good deed goes unpunished. TCPA Latner went to the Mt. Sinai Health System for a routine exam. He signed the usual forms, including a a permission slip for the facility to use his health information “for payment, treatment and hospital operations purposes....
In a petition for review of the BIA’s order finding petitioner ineligible for cancellation of removal because he had been convicted of an aggravated felony, the petition is denied where, under the circumstance-specific approach, it was permissible for the Immigration Judge to rely upon sentencing-related material to determine the amount of the loss. Read Hamilton v. Holder, No. 09-9505 Appellate Information Filed October 27, 2009 Judges Opinion by Judge O’Brien...
The Pennsylvania Supreme Court on Monday issued its opinion in Milliken v. Jacono, holding that a home’s seller didn’t have to disclose a murder/suicide that occurred in the house because it didn’t affect the price of the house. A grisly fact pattern to be sure, but the Supreme Court rooted its opinion in the more prosaic world of real estate. In 2006, Konstantinos Koumboulis killed his wife, then himself, in his Thornton, Pennsylvania house, reported Philly....
District court order denying defendant’s motion to compel arbitration and stay proceedings involving claims of patent and trade dress infringement is reversed where: 1) the Federal Circuit does not have exclusive jurisdiction over the appeal as the court’s order was neither final nor injunctive, and the present court has jurisdiction pursuant to 9 U.S.C. sec. 16(a)(1); and 2) the court erred in denying the motion as the dispute fell within the broad language of one of the arbitration provisions of the parties’ agreement....
District court’s dismissal of appellant’s facial constitutional challenges to the Unlawful Internet Gambling Enforcement Act of 2006 (Act) is affirmed where: 1) the Act is not void for vagueness as it clearly provides a person of ordinary intelligence with adequate notice of the conduct that it prohibits; and 2) district court did not err in rejecting plaintiff’s claim that the Act violated a constitutional right of individuals to engage in gambling related activity in the privacy of their homes in holding that Interactive lacked standing to assert the rights of third party....
