as a courtesy to the reader. They are not part of the opinion of the court.
103628P.pdf 07/17/2012 Greenbrier Nursing v. U.S. Dept. of HHS U.S. Court of Appeals Case No: 10-3628 Department of Health & Human Services [PUBLISHED] [Colloton, Author, with Smith and Gruender, Circuit Judges]
Civil case - Medicare. The Department of Health and Human Services's finding that petitioner was not in substantial compliance with 42 C.F.R. Sec. 483.25 was supported by substantial evidence; the agency did not err in concluding that petitioner's noncompliance rose to the level of immediate jeopardy; judicial review of certain objections to the civil penalties imposed were barred because petitioner failed to raise the arguments to the agency; petitioner received adequate notice of the basis for the penalties and had ample opportunity to respond; as the record contains substantial evidence of noncompliance, the agency's procedural framework for shifting the burden of proof was immaterial to the outcome and the court would not address the legal issue raised by the claim. 111339P.pdf 07/17/2012 Nathan Reuter v. Tana Cutcliff U.S. Court of Appeals Case No: 11-1339 Appeal from the Bankruptcy Appellate Panel for the Eighth Circuit [PUBLISHED] [Gruender, Author, with Smith and Colloton, Circuit Judges]
Civil case - Bankruptcy. Bankruptcy court did not err in concluding Reuter was vicariously liable for another's fraud, that he personally defrauded five of the creditors and the he personally sold unregistered securities in violation of Missouri law. Judge Smith, concurring in part and dissenting in part. 111504P.pdf 07/17/2012 United States v. Sangeeta Mann U.S. Court of Appeals Case No: 11-1504 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Gruender, Author, with Wollman and Loken, Circuit Judges]
Criminal case - Criminal law. No error in joining defendant's prosecution with the prosecution of her husband or in denying her motion to sever where the district court was careful to instruct the jury about compartmentalizing the evidence; defendant was not denied her right to an impartial jury; the trial court disclosed a ministerial ex parte contact with the jury and a remand for an evidentiary hearing was not required; evidence was sufficient to support defendant's convictions for conspiracy to obstruct the investigation of her husband's involvement with a bombing and for aiding and abetting tampering with evidence. 112068P.pdf 07/17/2012 Julio Matul-Hernandez v. Eric H. Holder, Jr. U.S. Court of Appeals Case No: 11-2068 Appeal from Board of Immigration Appeals [PUBLISHED] [Wollman, Author, with Colloton and Benton, Circuit Judges]
Petition for Review - Immigration. The IJ's finding that petitioner had not suffered past persecution was supported by substantial evidence; the BIA's finding that Guatemalans returning from the U.S. who are perceived as wealthy did not constitute a particular and socially visible group such that they could be perceived as a group and targeted for persecution was supported by substantial evidence; the agency did not err in finding that petitioner did not show a well-founded fear of persecution upon return to Guatemala on account of his membership in a particular social group; withholding of removal was properly denied as petitioner did not meet the less rigorous test for asylum; CAT claim was raised for the first time on appeal and would not be considered on appeal. 112327P.pdf 07/17/2012 Bridget Rashaw v. United Consumers Credit Union U.S. Court of Appeals Case No: 11-2327 and No: 11-2329 and No: 11-2331 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Loken, Author, with Bye and Melloy, Circuit Judges]
Civil case - Commercial law. Plaintiffs' Mo UCC claims were time barred. 112526P.pdf 07/17/2012 DKD Enterprises v. Commissioner of IRS U.S. Court of Appeals Case No: 11-2526 and No: 11-2529 and No: 11-2528 and No: 11-2530 Appeal from the United States Tax Court [PUBLISHED] [Riley, Chief Judge, with Wollman and Smith, Circuit Judges]
Civil case - Federal Tax. The Tax Court's findings: (1) that DKD's cattery operation costs were not legitimate trade or business expenses under 26 U.S.C. Sec. 162(a); (2) that funds spent by DKD to operate the cattery were taxable to Dursky, its owner, as a constructive dividend; and (3) that funds spent by DKD to pay Dursky's health insurance were not a deductible accident or health plan under 26 U.S.C. Sec. 106(a) or an excludable ordinary and necessary business expense under 26 U.S.C. Sec. 162(a) are affirmed. The Tax Court's decisions that DKD's contributions to a profit-sharing pension plan for 2003 and 2004 did not qualify for the 26 U.S.C. Sec. 401 and Sec. 501 deduction are reversed; the case is remanded to the Tax Court for further consideration of whether DKD's 2006 pension plan contribution qualified for the deduction in the 2005 tax year and whether that distribution is taxable to Dursky. 112613P.pdf 07/17/2012 United States v. Sara Jarrett U.S. Court of Appeals Case No: 11-2613 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Smith, Author, with Riley, Chief Judge, Shepherd, Circuit Judge]
Criminal case - Criminal law. Claim that jury instructions on conspiracy to commit money laundering constructively amended the indictment rejected; the district court did not plainly err in trying defendant with her pro se codefendant. 112994P.pdf 07/17/2012 United States v. Robert Ellis Hastings U.S. Court of Appeals Case No: 11-2994 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Gruender, Author, with Bright and Murphy, Circuit Judges]
Criminal case - Criminal law. It was objectively reasonable for the stopping officer to believe that defendant's action in crossing two highway lanes to make a belated exit was unsafe and justified a traffic stop; defendant failed to show any nexus between an allegedly prolonged detention and the discovery of the firearms; plain view doctrine permitted seizure of weapons even if they were not covered by the warrant in the case as the incriminating nature of the weapons was immediately apparent. 113106P.pdf 07/17/2012 United States v. Clifton Patterson U.S. Court of Appeals Case No: 11-3106 U.S. District Court for the District of North Dakota - Fargo [PUBLISHED] [Melloy, Author, with Riley, Chief Judge, and Bye, Circuit Judge]
Criminal case - criminal law. Any prejudice caused by the prosecutor's isolated comment regarding burden of proof was cured by district court's immediate instruction, as well as the final instructions in the case; prosecutor's comments did not rise to the level of a reversible attack on defense counsel's integrity. 113184U.pdf 07/17/2012 Steven Uhr v. Responsible Hospitality U.S. Court of Appeals Case No: 11-3184 U.S. District Court for the District of Minnesota - Minneapolis [UNPUBLISHED] [Per Curiam - Before Riley, Chief Judge, and Smith and Colloton, Circuit Judges]
Civil case - RICO. Dismissal affirmed without comment. 113240U.pdf 07/17/2012 United States v. Kevin Nelson U.S. Court of Appeals Case No: 11-3240 U.S. District Court for the Northern District of Iowa - Ft. Dodge [UNPUBLISHED] [Per Curiam - Before Murphy, Melloy and Colloton, Circuit Judges]
Criminal case - Sentencing. Nelson's appeal waiver covered his challenge to his sentence, and the appeal is dismissed. 113307P.pdf 07/17/2012 Gannon International v. Walter Blocker U.S. Court of Appeals Case No: 11-3307 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Gerrard, Author, with Loken and Shepherd, Circuit Judges]
Civil case - Fraud. Defendants' summary judgment affirmed.