| DISCLAIMER: |
The following unofficial case summaries are prepared by the clerk's office as a courtesy to the reader. They are not part of the opinion of the court. |
New Search
[ February 28, 2017 ]
151682P.pdf 02/28/2017 Minnesota Voters Alliance v. Joe Mansky U.S. Court of Appeals Case No: 15-1682 and No: 15-1741 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Benton, Author, with Riley, Chief Judge, and Loken, Circuit Judges] Civil case - Minnesota Election Laws. Several organizations and individuals challenge Minnesota Statute Section 211B.11 which prohibits the wearing of political insignia at a polling place. For the court's earlier opinion reversing dismissal of the groups' as-applied First Amendment claim, see Minnesota Majority v. Mansky, 708 F.3d 1051 (8th Cir. 2013). The statute and the state's policy implementing it are viewpoint neutral and facially reasonable,and application of the policy to persons wearing Tea Party apparel was reasonable because the Tea party has recognizable political views; defendants' summary judgment on plaintiffs' First Amendment claims is affirmed. 153792U.pdf 02/28/2017 United States v. Judith Renfrow U.S. Court of Appeals Case No: 15-3792 U.S. District Court for the District of Nebraska - Omaha [UNPUBLISHED] [Per Curiam - Before Colloton, Beam and Gruender, Circuit Judges] Criminal case - Sentencing. The district court did not err in denying defendant's motion for a sentence reduction under Amendment 782 based on its conclusion that her sentence was not based on the Guidelines because her Rule 11(c)(1)(C) plea agreement made no reference to the Guidelines range and contained no information about how any Guidelines range may have been calculated. 161403P.pdf 02/28/2017 United States v. Randy Beltramea U.S. Court of Appeals Case No: 16-1403 U.S. District Court for the Northern District of Iowa - Cedar Rapids [PUBLISHED] [Beam, Author, with Loken and Benton, Circuit Judges] Criminal case - Forfeiture. For the court's earlier opinion in the matter affirming defendant's sentence but remanding the matter for further proceedings regarding forfeiture, see U.S. v. Beltramea, 785 F.3d 287 (8th Cir. 2015). on remand, the evidence satisfied the requisite nexus between defendant's money-laundering convictions and the real property involved in the forfeiture proceedings, and the order forfeiting the entirety of a land development project is affirmed. 162014U.pdf 02/28/2017 Lester Sanchez-Pau v. Jefferson B. Sessions, III U.S. Court of Appeals Case No: 16-2014 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Wollman, Murphy and Gruender, Circuit Judges] Petition for review - Immigration. Substantial evidence supported the IJ's adverse credibility findings; petitioner did not show he was entitled to withholding of removal and the petition for review of the order denying withholding of removal is denied. [ February 27, 2017 ]
153184P.pdf 02/27/2017 Patricio Guzman-Ortiz v. United States U.S. Court of Appeals Case No: 15-3184 U.S. District Court for the District of South Dakota - Sioux Falls [PUBLISHED] [Riley, Author, with Wollman and Benton, Circuit Judges] Prisoner case - Habeas. For the court's opinion affirming Guzman's conviction and sentence, see U.S. v. Chantharath, 705 F.3d 295 (8th Cir. 2013). In this 2255 proceeding, Guzman asserted his counsel's performance at trial was deficient because he failed to competently cross-examine an adverse witness, failed to make a competent closing argument and failed to challenge the drug quantity calculation; counsel's trial strategy concerning the cross-examination and closing argument were reasonable and legitimate and did not constitute ineffective assistance of counsel; further, counsel challenged the drug quantity and his strategy resulted in the district court taking the low end of the ranges to which witnesses testified; a hearing was not required where Guzman's claims were either contradicted by the record or, if accepted as true, would not entitle him to relief. 153192P.pdf 02/27/2017 Edward Blackorby v. BNSF Railway Company U.S. Court of Appeals Case No: 15-3192 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Melloy, Author, with Colloton and Shepherd, Circuit Judges] Civil case - Federal Railroad Safety Act. The district court erred in instructing the jury that plaintiff need not establish intentional retaliation in order to prevail on his claim that his discipline violated the employee-protections provisions of the Act - see Kuduk v. BNSF Railway Co., 768 F.3d 786 (8th Cir. 2014); jury verdict for plaintiff is reversed and the matter is remanded for further proceedings. 153532P.pdf 02/27/2017 Kelly Heim v. BNSF Railway Company U.S. Court of Appeals Case No: 15-3532 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Melloy, Author, with Colloton and Shepherd, Circuit Judges] Civil case - Federal Railroad Safety Act. The district court correctly determined that plaintiff must show intentional retaliation in order to prevail on his claim that his discipline violated the employee-protections provisions of the Act, and it did not err in granting defendant's motion for summary judgment on the ground that plaintiff had failed to produce sufficient evidence of intentional retaliation. See Kuduk v. BNSF Railway Co., 768 F.3d 786 (8th Cir. 2014). 153852U.pdf 02/27/2017 United States v. Mark David McGinley U.S. Court of Appeals Case No: 15-3852 U.S. District Court for the District of Minnesota - St. Paul [UNPUBLISHED] [Loken, Author, with Smith and Colloton, Circuit Judges] Criminal case - Sentencing. Defendant's argument that the court failed to make an express finding of danger before imposing an enhancement under Guidelines Sec. 4B1.5(b) is rejected as the sentencing transcript makes clear that the court focused on whether defendant presented a continuing danger to the public; defendant failed to object to the district court's explanation of its evaluation of the 3553(a)factors, and his argument that the court gave too much weight to public safety and ignored other factors was not preserved for review; in any event, the court's explanation of its reasoning was more than sufficient to allow for meaningful appellate review and the record showed it considered all of the information and argument presented on the factors before making its sentencing decision. 161324P.pdf 02/27/2017 John Young v. Mercer County Commission U.S. Court of Appeals Case No: 16-1324 U.S. District Court for the Western District of Missouri - St. Joseph [PUBLISHED] [Shepherd, Author, with Colloton and Melloy, Circuit Judges] Civil case - Civil rights. On plaintiff's claim that defendants breached a lease agreement and denied his budget request for part-time help in retaliation for his complaints that the Commission violated his civil rights by passing an ordinance requiring every county resident to have a permanent 911 address and by assigning him an address he did not desire, defendants were entitled to legislative immunity; the district court properly found that the County Commissioners were entitled to qualified immunity as to their request that the state attorney general review the legality of the lease agreement. Judge Melloy, concurring. 161380U.pdf 02/27/2017 United States v. Jay Littlewind, Sr. U.S. Court of Appeals Case No: 16-1380 U.S. District Court for the District of North Dakota - Fargo [UNPUBLISHED] [Per Curiam - Before Kelly and Murphy, Circuit Judges, and Magnuson, District Judge] Criminal case - Criminal law. The district court did not err in permitting a forensic interviewer to testify about her interview of the seven year old victim of defendant's sexual abuse, including a description of the protocol she followed; the evidence was relevant background information addressing the process authorities use in their investigation of the offense; in any event, the testimony could not have had more than a slight influence on the outcome of the case, and any possible error in admitting the testimony would have been harmless. Judge Kelly, dissenting. 161402P.pdf 02/27/2017 Rita Lamoureux v. MPSC, Inc. U.S. Court of Appeals Case No: 16-1402 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Shepherd, Author, with Benton, Circuit Judge, and Ebinger, District Judge] Civil case - Contracts. The parties' contract did not specify a termination date for royalty payments to plaintiff, and the district court properly refused to supply an at-will termination term. 161998P.pdf 02/27/2017 United States v. Dominic Irons U.S. Court of Appeals Case No: 16-1998 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Wright, Author, with Wollman and Smith, Circuit Judges] Criminal case - Sentencing. The district court did not err in determining that defendant's conviction for violence against another inmate in violation of Mo. Rev. Stat. Section 217.385, subd. 1, was a predicate violent felony for purposes of sentencing under the Armed Career Criminal Act; the district court did not err in using the modified categorical approach in reaching this determination; because the offense was a predicate violent felony under the Act, it was also a crime of violence for purposes of Guidelines Sec. 4B1.2(a)(1). 162640U.pdf 02/27/2017 Charles Benjamin v. Ward County U.S. Court of Appeals Case No: 16-2640 U.S. District Court for the District of North Dakota - Bismarck [UNPUBLISHED] [Per Curiam - Before Colloton, Arnold and Kelly, Circuit Judges] Civil case - Civil rights. Defendant's summary judgment on plaintiff's deliberate-indifference to medical needs claim arising out of his pretrial detention in the Ward County Jail affirmed without comment. 162693U.pdf 02/27/2017 Roque De La Fuente v. Iowa Democratic Party U.S. Court of Appeals Case No: 16-2693 U.S. District Court for the Southern District of Iowa - Des Moines [UNPUBLISHED] [Per Curiam - Before Wollman, Murphy and Gruender, Circuit Judges] Civil case - Civil rights. Plaintiff's request for injunctive relief concerning his participation in the Iowa Democratic presidential caucuses was moot; the remainder of his complaint was properly dismissed for failure to state a claim. 162844U.pdf 02/27/2017 Michael McConnell v. Carolyn W. Colvin U.S. Court of Appeals Case No: 16-2844 U.S. District Court for the Eastern District of Missouri - Cape Girardeau [UNPUBLISHED] [Per Curiam - Before Smith, Bowman and Benton, Circuit Judges] Civil case - Social Security. Denial of disability benefits affirmed without comment. 163172U.pdf 02/27/2017 Forest Kingcade v. Tim Trowbridge U.S. Court of Appeals Case No: 16-3172 U.S. District Court for the Eastern District of Missouri - Cape Girardeau [UNPUBLISHED] [Per Curiam - Before Smith, Arnold and Colloton, Circuit Judges] Civil case - Civil rights. The district court properly granted summary judgment on plaintiff's deliberate-indifference medical care claims; however, the court erred in determining that plaintiff's excessive force and failure-to-intervene claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994), and those claims are remanded for further proceedings. 163303U.pdf 02/27/2017 United States v. Anthony Dixon U.S. Court of Appeals Case No: 16-3303 U.S. District Court for the Western District of Missouri - Springfield [UNPUBLISHED] [Per Curiam - Before Colloton, Arnold and Kelly, Circuit Judges] Criminal case - Sentencing. Anders case. The district court did not commit any significant procedural error or impose an unreasonable sentence. [ February 24, 2017 ]
153523P.pdf 02/24/2017 Christopher Martin v. John Fayram U.S. Court of Appeals Case No: 15-3523 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Murphy, Author, with Loken and Kelly, Circuit Judges] Prisoner case - Habeas. Martin's conviction was the relevant judgment under 28 U.S.C. Sec.2244(d)(1)(A) and that conviction became final for determining the relevant AEDPA filing period at the conclusion of his direct appeal; all of the vital facts underlying Martin's claims were known to him before the conclusion of his direct appeal, and an argument that the factual predicate for his ineffective assistance of counsel claims arose during the state post-conviction proceedings, thereby triggering AEDPA's limitation period is rejected; this habeas was, therefore, untimely, and there were no extraordinary circumstances justifying equitably tolling the filing period; the district court did not err by requiring Martin to waive any claims against his counsel without providing independent counsel as any argument for tolling based on counsel's pre-filing conduct would have been close to frivolous. Judge Kelly, dissenting. 161216U.pdf 02/24/2017 Lora Hamman v. Carolyn W. Colvin U.S. Court of Appeals Case No: 16-1216 U.S. District Court for the Eastern District of Arkansas - Batesville [UNPUBLISHED] [Per Curiam - Before Colloton, Murphy and Melloy, Circuit Judges] Civil case - Social Security. The ALJ did not err in refusing to give the treating physician's opinion controlling weight as it was not fully supported or consistent with other substantial evidence in the record; credibility finding was supported by substantial evidence. Judge Melloy, dissenting. 161266P.pdf 02/24/2017 United States v. Dontre D'Sean McHenry U.S. Court of Appeals Case No: 16-1266 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Loken, Author, with Smith and Colloton, Circuit Judges] Criminal case - Criminal law and sentencing. Officers investigating sex trafficking of a minor had a good faith belief that exigent circumstances justified a request to the phone carrier to disclose subscriber information and to conduct GPS tracking of the number, as authorized by the Storage Communications Act; defendant's claim that counsel had failed to prepare him for the change-of-plea hearing was belied by the transcript and the district court did not err in rejecting defendant's claim that this justified withdrawal of his guilty plea; no error in imposing an enhancement for obstruction of justice under Guidelines Sec. 3C1.1 where defendant attempted to contact the victim in order to manipulate and influence her testimony; no error in denying an acceptance-of-responsibility reduction under Guidelines Sec. 3E1.1(a) as defendant's attempt to withdraw his plea showed he did not accept responsibility; sentence was not substantively unreasonable. 162516U.pdf 02/24/2017 United States v. Walter Sorrells U.S. Court of Appeals Case No: 16-2516 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Colloton, Arnold and Kelly, Circuit Judges] Criminal case. Anders case. Defendant's appeal waiver is enforceable and applies to the issues he raises in this appeal; the appeal is therefore dismissed. 162586U.pdf 02/24/2017 United States v. Alberto Sanchez U.S. Court of Appeals Case No: 16-2586 U.S. District Court for the Northern District of Iowa - Sioux City [UNPUBLISHED] [Per Curiam - Before Smith, Arnold and Colloton, Circuit Judges] Criminal case - Criminal law and sentencing. Anders case. Evidence was sufficient to support defendant's drug conspiracy conviction; no clear error in either the court's drug quantity calculation or its decision to impose an aggravating-role enhancement; sentence was substantively reasonable. 162669U.pdf 02/24/2017 United States v. Patrick Rogers U.S. Court of Appeals Case No: 16-2669 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Colloton, Arnold and Kelly, Circuit Judges] Criminal case - Sentencing. Anders case. Defendant's appeal waiver is enforceable and applies to the issues he raises in this appeal; the appeal is dismissed. 166029P.pdf 02/24/2017 Sweetwater Cattle Co. v. Leigh Murphy, etc. U.S. Court of Appeals Case No: 16-6029 U.S. Bankruptcy Court for the District of Nebraska - Omaha [PUBLISHED] [Federman, Author, with Kressel and Shodeen, Bankruptcy Judges] Bankruptcy Appellate Panel. Title to cattle passed from Murphy to debtor and Sweetwater's after-acquired property lien attached to the cattle and was superior to Murphy's right to reclaim the cattle after debtor's checks were dishonored; defects in the bill of sale did not prevent the transfer of ownership; title to the cattle did not revest in the seller and his rights were limited to reclamation procedures; Sweetwater was a good faith purchaser. [ February 23, 2017 ]
143335P.pdf 02/23/2017 United States v. Wakinyan McArthur U.S. Court of Appeals Case No: 14-3335 and No: 14-3336 and No: 14-3367 U.S. District Court for the District of Minnesota - St. Paul PUBLISHED [Colloton, Author, with Riley, Chief Judge, and Kelly, Circuit Judge] Criminal Case - Criminal Law. [ February 22, 2017 ]
153538P.pdf 02/22/2017 Brian Knowlton v. Anheuser-Busch Companies U.S. Court of Appeals Case No: 15-3538 and No: 15-3851 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Riley, Author, with Murphy and Smith, Circuit Judges] Civil case - ERISA. In action by former Sea World employees claiming they were entitled to enhanced pension benefits under the defendant's salaried employee pension plan, the district court correctly determined that Section 19.11(f) of the plan entitled plaintiffs to enhanced pension benefit; this decision is in accord with the Sixth Circuit's interpretation of the provision in Adams v. Anheuser-Busch Cos., 758 F.3d 743 (6th Cir. 2014); with respect to plaintiff's cross-appeal, asserting the district court erred by failing to make individual calculations of the enhanced benefits owed to individual members of the class, the district court erred in concluding that plaintiff's complaint sought only a declaration that Section 19.11(f) applied, as their complaint made a sufficient request for an actual award of certain benefits with the application of the enhanced benefit; therefore, the matter of the calculation of benefits is reversed and remanded with instructions to reconsider the plaintiff's prayer for relief and, to the extent requested and provable, calculate and award the benefits owed to plaintiffs by applying Section 19.11(f); finally, on remand, the district court should reconsider whether certain records concerning the absentee class members will assist in its calculation of the requested benefits. 153649P.pdf 02/22/2017 United States v. Michael Huyck U.S. Court of Appeals Case No: 15-3649 and No: 15-3652 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Gruender, Author, with Colloton and Beam, Circuit Judges] Criminal case - Criminal law. There was probable cause, based on information showing defendant had accessed "Pedoboard," a secret or hidden bulletin board trafficking in child pornography, to support the issuance of a warrant for his home and computers; no error in admitting evidence that defendant used a program called "downthemall" to efficiently download content from websites when he was charged with accessing and receiving child pornography; no error in admitting evidence concerning the Onion Pedo Video Archive as it was relevant to defendant's knowledge of the Tor network used to access Pedoboard and his intent to view child pornography; the evidence was sufficient to support defendant's convictions for receipt, viewing and possessing child pornography; inconsistent responses on the verdict forms did not require the granting of a new trial as the evidence was sufficient on the counts on which defendant was convicted. 153954P.pdf 02/22/2017 United States v. Larry Mikawa U.S. Court of Appeals Case No: 15-3954 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Kelly, Author, with Riley, Chief Judge, and Wollman, Circuit Judge] Criminal case - Criminal law. Where the defendant had been found not guilty by reason of insanity and had been civilly committed for care and treatment under 18 U.S.C. Sec. 4243, the district court did not err in denying his request for conditional release based on its finding he continued to present a substantial risk of danger to other persons or property. 161416P.pdf 02/22/2017 United States v. Bruce Swisshelm U.S. Court of Appeals Case No: 16-1416 U.S. District Court for the Western District of Missouri - Springfield [PUBLISHED] [Wollman, Author, with Riley, Chief Judge, and Kelly, Circuit Judge] Criminal case - Sentencing (Government Appeal). Defendant concedes that he violated the plea agreement by asking for a below-guidelines sentence; the breach affected the district court's decision and the matter is remanded for resentencing before a different judge. 161423U.pdf 02/22/2017 United States v. Fredrick Graham U.S. Court of Appeals Case No: 16-1423 U.S. District Court for the Eastern District of Missouri - St. Louis [UNPUBLISHED] [Per Curiam - Before Wollman, Smith and Benton, Circuit Judges] Criminal case - Criminal law. In a felon-in-possession prosecution, the district court did not err in admitting evidence of defendant's 2009 firearms-related arrest as it was relevant to show knowledge and intent; further, the evidence was not unfairly prejudicial and the court twice instructed the jury on the limited purpose of such evidence; no error in rejecting defendant's proposed instruction on implicit racial bias. 161884P.pdf 02/22/2017 United States v. Charles Bacon U.S. Court of Appeals Case No: 16-1884 U.S. District Court for the Western District of Missouri - Springfield [PUBLISHED] [Per Curiam - Before Riley, Chief Judge, and Smith and Benton, Circuit Judges] Criminal case - Sentencing. The district court carefully considered the relevant Guidelines factors, including public protection, the need to promote respect for the law, as well as defendant's continuing disrespect for the law, and it did not abuse its discretion by varying upward. 161970P.pdf 02/22/2017 United States v. Steven Petersen U.S. Court of Appeals Case No: 16-1970 U.S. District Court for the Northern District of Iowa - Cedar Rapids [PUBLISHED] [Riley, Author, with Loken and Benton, Circuit Judges] Criminal case - Criminal law and sentencing. The evidence was sufficient to show defendant violated the terms of his supervision by committing the new offense of soliciting an aggravated misdemeanor; sentence imposed was not substantively unreasonable. 163194U.pdf 02/22/2017 United States v. Jeffery Gbor U.S. Court of Appeals Case No: 16-3194 U.S. District Court for the District of Minnesota - St. Paul [UNPUBLISHED] [Per Curiam - Before Smith, Bowman and Benton, Circuit Judges] Criminal case - Sentencing. Anders case. The restitution order in the matter was not plainly erroneous; the court would not consider claims of ineffective assistance of counsel in this direct appeal. [ February 21, 2017 ]
161778U.pdf 02/21/2017 Dexter Duren v. URS Corporation U.S. Court of Appeals Case No: 16-1778 U.S. District Court for the Eastern District of Arkansas - Pine Bluff [UNPUBLISHED] [Per Curiam - Before Loken, Bowman and Kelly, Circuit Judges] Civil case - Employment discrimination. Defendant's summary judgment affirmed; neither the denial of an award nor a job reclassifcation constituted a material adverse employment; claims never raised in the district court or abandoned on appeal would not be considered. 161807P.pdf 02/21/2017 Ramon Mendoza v. Jeff Davis U.S. Court of Appeals Case No: 16-1807 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Beam, Author, with Colloton and Gruender, Circuit Judges] Civil case - Civil rights. The agent issuing an ICE detainer had probable cause to do so based on the information provided by plaintiff and official files and other government records and he was entitled to qualified immunity on plaintiff's Bivens claim; the county sheriff had no direct participation in the alleged violations of plaintiff's civil rights and was entitled to qualified immunity; the county employees involved in plaintiff's detention reasonably believed plaintiff was another person based on the information provided to them and were entitled to qualified immunity; failure to train and supervise and municipal liability claims were properly rejected as the record showed employees received training and information regarding handling ICE detainers and followed the information and practices; any actions they took could not be attributed to a defective government practice or policy; none of defendants' actions meet the standard necessary for a substantive due process violation, and the conduct in question was, at most, negligent and did not rise to the level of a constitutional violation; civil conspiracy claim rejected as there was no constitutional violation in the case. 163402U.pdf 02/21/2017 Rickey Holtsclaw v. Sandy Sanders U.S. Court of Appeals Case No: 16-3402 U.S. District Court for the Western District of Arkansas - Ft. Smith [UNPUBLISHED] [Per Curiam - Before Smith, Bowman and Benton, Circuit Judges] Civil case - Civil Rights. Dismissal of plaintiff's pro se Section 1983 complaint affirmed without comment. [ February 17, 2017 ]
153694P.pdf 02/17/2017 Mark Neubauer v. FedEx Corporation U.S. Court of Appeals Case No: 15-3694 U.S. District Court for the District of North Dakota - Fargo [PUBLISHED] [Gruender, Author, with Colloton and Beam, Circuit Judges] Civil case - Contracts. Plaintiff's claim that defendant breached its prior operating agreement with him was properly dismissed as the agreement had expired and no longer controlled their relationship and, in any event, the specific language of the prior agreement foreclosed the claim; plaintiff's second breach-of-contract claim was foreclosed by the language of the agreement; plaintiff's fraud claims were properly dismissed because he failed to plead fraud with the specificity required by Rule 9(b); the parties' relationship was not covered by North Dakota's Franchise Investment Law as the parties' agreement explicitly stated plaintiff was an independent contractor providing transportation services for delivery of defendant's packages and he had not been granted the right to offer or distribute services to customers; the complaint failed to alleged a claim under North Dakota's RICO act. 161050U.pdf 02/17/2017 United States v. Kirk Cottom U.S. Court of Appeals Case No: 16-1050 U.S. District Court for the District of Nebraska - Omaha [UNPUBLISHED] [Per Curiam - Before Colloton, Beam and Gruender, Circuit Judges] Criminal case - Criminal law. The delayed notice of the Network Investigative Technique warrant did not violate defendant's Fourth Amendment rights and did not warrant suppression of the evidence obtained from it- see United States v. Welch, 811 F.3d 275 (8th Cir. 2016), cert. denied, 136 S. Ct. 2476 (2016); the fact that the government did not preserve the source code used to create and deploy the Network Investigative Technique did not warrant exclusion of the government's experts' testimony as the destruction of the code was not intentional or part of an effort to suppress the truth and all of the experts on both sides testified that the source code information was of little use in determining that the Technique was reliable and repeatable. 161317P.pdf 02/17/2017 Diwan, L.L.C. v. Maha-Vishnu Corporation U.S. Court of Appeals Case No: 16-1317 U.S. District Court for the Southern District of Iowa - Davenport [PUBLISHED] [Beam, Author, with Colloton and Gruender, Circuit Judges] Civil case - Bankruptcy. Even giving debtor the benefit of the doubt regarding his impairment-of-collateral argument (which both the bankruptcy and district court rejected), the bankruptcy court's alternative basis for rejecting his Chapter 11 plan and dismissing the case - that the plan was not financially feasible - fully supported its decision and the dismissal is affirmed. 162284U.pdf 02/17/2017 United States v. Darrell Andersen U.S. Court of Appeals Case No: 16-2284 U.S. District Court for the Northern District of Iowa, Waterloo [UNPUBLISHED] [Per Curiam - Before Colloton, Murphy and Melloy, Circuit Judges] Criminal case - Criminal law. The district court did not err in determining, based on the preponderance of the evidence, that defendant had violated his supervision by using cocaine. 162355P.pdf 02/17/2017 United States v. Daniel Morris Johnson U.S. Court of Appeals Case No: 16-2355 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Ebinger, Author, with Benton and Shepherd, Circuit Judges] Criminal case - Criminal law and sentencing. Under the facts of the case and considering the other information contained in the warrant application, the warrant, issued eleven months after defendant took nude photos of the minor victim, was not based on stale information; additionally, the information in the application established grounds to believe evidence would be found at defendant's residence; in any event, the Leon good-faith exception prevented suppression of the evidence; even if the district court erred in enhancing defendant's sentence based on his prior Minnesota conviction for sexual conduct in the fifth degree, the district court specifically contemplated the argument and clearly indicated that it would impose the same sentence without the challenged enhancement based on its belief that a lesser sentence would not promote sufficient respect for the law; as a result, any error was harmless, and the sentence is affirmed. [ February 16, 2017 ]
153149P.pdf 02/16/2017 Maria Dolores Fuentes-Erazo v. Loretta E. Lynch U.S. Court of Appeals Case No: 15-3149 Petition for Review of an Order of the Board of Immigration Appeals [PUBLISHED] [Wollman, Author, with Smith and Colloton, Circuit Judges] Petition for Review - Immigration. Petitioner's own evidence showed that she was able to leave an abusive relationship and live safely in Honduras for five years and the BIA did not err in finding she failed to demonstrate that she was a member of her proposed particular social group - Honduran women in domestic relationships who are unable to leave their relationships - and that she was ineligible for asylum or withholding of removal; further, she failed to show a likelihood that she would be tortured if she were returned to Honduras and that the torture would be inflicted with the consent or acquiescence of a public official. 153656P.pdf 02/16/2017 Gyronne Buckley v. Keith Ray U.S. Court of Appeals Case No: 15-3656 U.S. District Court for the Eastern District of Arkansas - Pine Bluff [PUBLISHED] [Shepherd, Author, with Colloton and Melloy, Circuit Judges] Civil case - Civil rights. The Attorney General's office defendants were entitled to summary judgment on plaintiff's claim that their actions in accessing and referencing his expunged criminal record for his compensation proceedings before the Arkansas Claims Commissions violated his substantive due process rights; the mere act of violating the expungement statute did not amount to a brutal and inhumane abuse of official power literally shocking to the conscience; plaintiff failed to articulate any legally-cognizable liberty interest created by the Arkansas expungement statute, and defendants were entitled to qualified immunity on his procedural due process claim; with respect to plaintiff's claim that a misstatement of the record by the Attorney General during his testimony before the legislative subcommittee considering the claim constituted defamation, the Attorney General was entitled to absolute legislative immunity; plaintiff's Section 1983 claims arising out of his wrongful conviction accrued on the date the trial court invalidated his conviction, and this action was brought more than three years after that date and the claims were, therefore, time barred. 153952P.pdf 02/16/2017 United States v. Adetokunbo Adejumo U.S. Court of Appeals Case No: 15-3952 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Murphy, Author, with Loken and Kelly, Circuit Judges] Criminal case - Sentencing. The court retained power to order restitution even though it missed the 90-day deadline in 18 U.S.C. Sec. 3663(d)(5); however, the government failed to provide sufficient evidence of the ultimate losses defendant caused the victim banks; since more than four years have passed since defendant was originally sentenced and because the government was aware of defendant's objections to its evidence and still failed to introduce the additional evidence needed to prove ultimate loss, the court will not remand the matter for a third restitution proceeding; the district court's award is vacated. 161519U.pdf 02/16/2017 Major Williams, Jr. v. C. V. Rivera U.S. Court of Appeals Case No: 16-1519 U.S. District Court for the Eastern District of Arkansas - Helena [UNPUBLISHED] [Per Curiam - Before Wollman, Murphy and Gruender, Circuit Judges] Prisoner case - habeas. Dismissal of Section 2241 petition affirmed without comment. 161681P.pdf 02/16/2017 Edward Huyer v. Steven Buckley U.S. Court of Appeals Case No: 16-1681 and No: 16-1740 and No: 16-1743 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Gruender, Author, with Smith and Shepherd, Circuit Judges] Civil case - Class Actions and Attorneys' Fees. The court's choice to calculate attorneys' fees based on the total settlement fund rather than the net settlement did not result in an unreasonable award, and the order awarding fees in the amount of one-third of the total settlement fund is affirmed. 161875U.pdf 02/16/2017 United States v. Theodore John Nelson, Jr. U.S. Court of Appeals Case No: 16-1875 and No: 16-1877 and No: 16-1878 and No: 16-1879 U.S. District Court for the District of South Dakota - Sioux Falls [UNPUBLISHED] [Per Curiam - Before Loken, Bowman and Kelly, Circuit Judges] Criminal case - Criminal Law and Sentencing. Anders case. Challenges to sufficiency of the evidence and the guidelines calculations rejected; claim of ineffective assistance of counsel would not be considered on direct appeal. 162133U.pdf 02/16/2017 Amador Martinez Carrasco v. Loretta E. Lynch U.S. Court of Appeals Case No: 16-2133 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Loken, Bowman and Kelly, Circuit Judges] Petition for Review - Immigration. Substantial evidence supports the agency determination that petitioner does not qualify for the withholding of removal based on his membership in the particular social group he identified. 162674U.pdf 02/16/2017 Gerardo Cordova v. Loretta E. Lynch U.S. Court of Appeals Case No: 16-2674 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Wollman, Murphy and Gruender, Circuit Judges] Petition for Review - Immigration. The BIA did not abuse its discretion in rejecting petitioner's claim of ineffective assistance and dismissing his appeal; at no time has petitioner alleged or shown that he did not have a conviction which made him ineligible for cancellation of removal and he could not, therefore, show counsel's actions were prejudicial. 163348U.pdf 02/16/2017 United States v. Kunta Brown U.S. Court of Appeals Case No: 16-3348 U.S. District Court for the Southern District of Iowa - Des Moines [UNPUBLISHED] [Per Curiam - Before Wollman, Murphy and Gruender, Circuit Judges] Criminal case - Sentencing. Anders case. Sentence was not unreasonable. [ February 15, 2017 ]
162482P.pdf 02/15/2017 United States v. Antonio Thigpen U.S. Court of Appeals Case No: 16-2482 U.S. District Court for the Northern District of Iowa - Cedar Rapids [PUBLISHED] [Benton, Author, with Loken and Beam, Circuit Judges] Criminal Case - sentencing. Claim that Iowa third-degree burglary is not a crime of violence for enhancement under Guidelines sec. 2K2.1(a)(2), conceded by the government, is nonetheless harmless error, as the district court stated it would impose the same sentence regardless of the guidelines calculation. Challenge to 4-level increase under Guidelines sec. 2K2.1(b)(4)(B) for altered or obliterated serial number, when only one of three serial numbers was altered, is a matter of first impression. Based on the plain language of the guidelines and in accord with the First and Eleventh Circuits, the district court did not err in applying the enhancement when the serial number on the frame was obliterated. Claim of error in imposing 4-level enhancement under section 2K2.1(b)(6)(B) for possessing a firearm in connection with a felony offense is foreclosed by this court's decision in United States v. Walker. District court did not plainly err in stating it was imposing a non-guidelines sentence, as it engaged in a thorough analysis of the section 3553(a) factors. [ February 14, 2017 ]
153986P.pdf 02/14/2017 United States v. Corey Victor Bevins U.S. Court of Appeals Case No: 15-3986 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Chief Judge Riley, Author, with Wollman and Benton, Circuit Judges] Criminal Case - sentencing. Following guilty plea to producing, receiving, and possessing child pornography, district court varied downward from 720 months to 300 months imprisonment. Enhancements under Guidelines secs. 2G2.2(b)(4) and (b)(5) and 4B1.5(b)(1) had no impact of the Guidelines range. Any challenge to the grouping counts were harmless error. Enhancement for being a repeat and dangerous sex offender under section 4B1.5(b)(1) does not require a prior conviction; enhancement under sec. 2G2.1(b)(4) for sadistic or masochistic conduct were warranted; and the production counts were properly grouped under section 3D1.4 because each production is considered a separate and distinct harm. As to unobjected to challenge to the adequacy of the district court's explanation of the section 3553(a) factors, the district court's explanation, though brief, was not so plainly inadequate as to warrant reversal. The sentence, a downward variance of 420 months, was not unreasonably high. 161490U.pdf 02/14/2017 Katina Riggs-Degraftenreed v. Wells Fargo Home Mortgage U.S. Court of Appeals Case No: 16-1490 U.S. District Court for the Eastern District of Arkansas - Little Rock [UNPUBLISHED] [Per Curiam. Before Colloton, Murphy, and Gruender, Circuit Judges] Civil Case - Fraud. District court's dismissal of state law claims in a dismissed removed civil action challenging certain communications surrounding the anticipated foreclosure is affirmed. Riggs-Degraftenreed failed to state a prima facie case of fraud against either defendant and she failed to show she was damaged by two letters. 163056U.pdf 02/14/2017 Travis Ross v. Dr. Mary Carpenter U.S. Court of Appeals Case No: 16-3056 U.S. District Court for the District of South Dakota - Pierre [UNPUBLISHED] [Per Curiam. Before Loken, Bowman, and Kelly, Circuit Judges] Civil Case - civil rights. Grant of summary judgment is affirmed, as defendant entitled to sovereign immunity on official capacity claims for damages and Ross failed to show defendant was deliberately indifferent to serious medical needs. [ February 13, 2017 ]
152855P.pdf 02/13/2017 Elliot Kaplan v. Mayo Clinic U.S. Court of Appeals Case No: 15-2855 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Smith, Author, with Loken and Colloton, Circuit Judges] Civil case - Breach of Contract. For the court's prior opinion in the matter, see Kaplan v. Mayo Clinic, 653 F.3d 720 (8th Cir. 2011). The district court did not err in ruling for defendants on plaintiff's breach-of-contract claim based on its conclusion that the operating surgeon did not promise to do a biopsy of plaintiff's pancreas during the surgery; this court's holding in the prior appeal did not preclude the district court, as fact finder, from determining no contract had even been formed; nor did the court's decision preclude defendants from submitting expert testimony to establish a defense to the claim of a special contract in the performance of the operation. 153191P.pdf 02/13/2017 Robert McKeage v. TMBC, LLC U.S. Court of Appeals Case No: 15-3191 and No: 15-3286 U.S. District Court for the Western District of Missouri - Springfield [PUBLISHED] [Per Curiam - Before Wollman, Bright and Kelly, Circuit Judges] Civil case - Class actions. In suit alleging defendant's nationwide practice of charging a document fee when selling boats and trailers under form contracts governed by Missouri law, the district court did not err in certifying the class and did not err in determining that charging a fee for the documents constituted unauthorized law business in violation of Mo. Rev. Stat. Sections 484.010 and 484.020; the class was clearly ascertainable and the commonality and predominance requirements of Rule 23(b) were met; Missouri courts have determined the forms for which defendant charged a fee are legal documents - namely, power of attorney forms - and the district court did not err in finding the practice violated Missouri law; district court did not err in applying Missouri law to sales that occurred outside Missouri; on plaintiffs' cross-appeal, in which they contended the district court erred in awarding attorneys fees from the common fund rather than under the contractual fee-shifting provisions, enforcement of the fee-shifting provision honors both the parties' contract and the principles underlying the common fund doctrine, and the award is reversed; however, if on remand the district court should determine that class counsel is entitled to additional fees from the common fund, apart from those reasonable expenses covered by the fee-shifting provision, it is not prohibited from awarding additional fees from the fund as a whole. 153772P.pdf 02/13/2017 United States v. Justin Wrice U.S. Court of Appeals Case No: 15-3772 U.S. District Court for the Northern District of Iowa, Waterloo [PUBLISHED] [Per Curiam - Before Loken, Smith and Colloton, Circuit Judges] Criminal case - Sentencing. The district court did not give weight to an improper sentencing factor, as the remark defendant points to had negligible effect on his sentence and the district court did not abuse its discretion in focusing on other relevant and permissible factors, such as the crime, defendant's family history, drug use, gang history, fugitive status and conduct during arrest and his time as a fugitive. 161518P.pdf 02/13/2017 Paul Gerlich v. Steven Leath U.S. Court of Appeals Case No: 16-1518 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Murphy, Author, with Loken and Kelly, Circuit Judges] Civil case - Civil Rights. In an action brought by members of the Iowa State University student chapter of NORML after the school refused the group's trademark licensing requests because the designs it submitted included a cannabis leaf, the district court did not err in concluding the plaintiffs had standing because they suffered an injury in fact in their individual capacities; their allegations that ISU violated their First Amendment rights by rejecting their designs and therefore preventing their ability to spread NORML ISU's message were sufficient to establish injury in fact; the district court did not err in granting plaintiffs summary judgment on their First Amendment claim; qualified immunity is not an issue in this matter because the appeal solely concerns plaintiffs' request for injunctive relief; defendants' actions and statements show that the unique scrutiny they imposed on NORML ISU's trademark applications was motivated by viewpoint discrimination; argument that even if defendants engaged in viewpoint discrimination they did not violate plaintiffs' First Amendment rights because the administration of the trademark licensing regime was government speech is rejected as ISU does not use its trademark licensing regime to speak to the public; the injunctive relief ordered affirmed. 162616U.pdf 02/13/2017 United States v. Jeremy Traxler U.S. Court of Appeals Case No: 16-2616 U.S. District Court for the Western District of Missouri - Jefferson City [UNPUBLISHED] [Per Curiam - Before Loken, Bowman and Kelly, Circuit Judges] Criminal case - Sentencing. Anders case. The sentence was not substantively unreasonable. [ February 10, 2017 ]
162631U.pdf 02/10/2017 United States v. Lewis Heggs, Jr. U.S. Court of Appeals Case No: 16-2631 U.S. District Court for the District of Minnesota - St. Paul [UNPUBLISHED] [Per Curiam - Before Gruender, Benton and Shepherd, Circuit Judges] Criminal case - Sentencing. Anders case. The district court did not impose an unreasonable sentence. [ February 09, 2017 ]
161424U.pdf 02/09/2017 United States v. Juan Loaiza U.S. Court of Appeals Case No: 16-1424 U.S. District Court for the District of Nebraska - Lincoln [UNPUBLISHED] [Per Curiam - Before Colloton, Beam and Gruender, Circuit Judges] Criminal case - Sentencing. The district court considered the 3553(a) factors, did not err in weighing them and committed no clear error of judgment; as a result, there was no abuse of discretion and defendant's within-guidelines sentence is affirmed. 161885U.pdf 02/09/2017 Margots Kapacs v. Anita Jurevica U.S. Court of Appeals Case No: 16-1885 U.S. District Court for the District of Minnesota - Minneapolis [UNPUBLISHED] [Per Curiam - Before Loken, Bowman and Kelly, Circuit Judges] Civil case - Civil rights. Dismissal of Section 1983 and RICO claim affirmed without comment. 163059U.pdf 02/09/2017 United States v. Conrad Dickson U.S. Court of Appeals Case No: 16-3059 U.S. District Court for the Western District of Arkansas - Fayetteville [UNPUBLISHED] [Per Curiam - Before Wollman, Murphy and Gruender, Circuit Judges] Criminal case - Criminal law. Denial of petition for a writ of error coram nobis affirmed without comment; defendant's claims had essentially been considered and denied in a prior Section 2255 motion. [ February 08, 2017 ]
161440P.pdf 02/08/2017 United States v. Andre LaFontaine, III U.S. Court of Appeals Case No: 16-1440 U.S. District Court for the Northern District of Iowa - Cedar Rapids [PUBLISHED] [Beam, Author, with Loken and Benton, Circuit Judges] Criminal case - Criminal law and sentencing. Claims of prosecutorial misconduct in closing argument (comments on the presumption of innocence, defendant's failure to testify, attacks on defense counsel)rejected as the comments were within the latitude afforded closing argument or, when taken in context, were not improper; in this prosecution for making a threatening communication, the district court did not err in admitting evidence concerning prior comments to a federal court employee as the testimony was relevant to the issue of whether defendant intended to make a threat or knew his voicemail would be perceived as a threat and the incident was similar in nature to the incident giving rise to this charge; no error in imposing a GPS monitoring requirement for defendant's supervised release as it would aid authorities in tracking him in the event he sought to contact anyone he had previously threatened; defendant failed to object to provisions in his supervision concerning an alcohol ban and substance abuse treatment and thereby waived any challenged to the conditions. 161562U.pdf 02/08/2017 Lorena Santos Adame v. Loretta Lynch U.S. Court of Appeals Case No: 16-1562 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Smith, Arnold and Colloton, Circuit Judges] Petition for Review - Immigration. Assuming for purposes of discussion that an egregious constitutional violation may justify suppression of evidence in the immigration context, petitioner's traffic stop did not qualify as the officer who stopped defendant had probable cause to believe she was driving by barred. 161597U.pdf 02/08/2017 Kevin Conway v. Sue Alford U.S. Court of Appeals Case No: 16-1597 U.S. District Court for the Western District of Arkansas - Hot Springs [UNPUBLISHED] [Per Curiam - Before Shepherd, Arnold and Kelly, Circuit Judges] Prisoner case - Prisoner civil rights. Claim that defendants' actions in withholding publications from the Church of Jesus Christ Christian, which is affiliated with the Aryan Nations,substantially burdened his religious rights under RLUIPA rejected, as the burden placed on him was not substantial; defendants were entitled to qualified immunity on plaintiff's RLUIPA claim and the district court erred in denying their motion for summary judgment on the claim; because plaintiff has not alleged or proven a substantial burden to his religious exercise under RLUIPA, his constitutional free-exercise claim necessarily fails; reversed and remanded for further proceedings on plaintiff's remaining claims. 161694P.pdf 02/08/2017 Edward Huyer v. Rhadiante Van de Voorde U.S. Court of Appeals Case No: 16-1694 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Gruender, Author, with Smith and Shepherd, Circuit Judges] Civil case - Class Actions. In appeal challenging the provisions of a class action settlement which require one subgroup of class members to submit proofs of claim before receiving payment, appellant is not a member of this subgroup and suffers no injury from the challenged requirement; nor will she obtain any benefit from the objection; as a result, appellant lacks standing and the appeal is dismissed. Judge Smith, concurring. 161783U.pdf 02/08/2017 United States v. George M. Hall U.S. Court of Appeals Case No: 16-1783 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Colloton, Murphy and Gruender, Circuit Judges] Civil case - Injunctions. The record supports the district court's finding that the acts it was enjoining were taken solely to frustrate the court-approved sale of the Benton County Sewer District's assets and ongoing operations through the court-appointed receiver. 161839U.pdf 02/08/2017 James Greer v. Carolyn W. Colvin U.S. Court of Appeals Case No: 16-1839 U.S. District Court for the Western District of Arkansas - Harrison [UNPUBLISHED] [Per Curiam - Before Smith, Arnold and Colloton, Circuit Judges] Civil case - Social Security. Decision denying benefits was supported by substantial evidence and the decision is affirmed without further comment. 162025U.pdf 02/08/2017 Robert Baker v. Carolyn W. Colvin U.S. Court of Appeals Case No: 16-2025 U.S. District Court for the Western District of Arkansas - Harrison [UNPUBLISHED] [Per Curiam - Before Smith, Arnold and Colloton, Circuit Judges] Civil case - Social Security. Substantial evidence supported the ALJ"s determinations that claimant's borderline intellectual functioning did not meet the requirements of Listing 12.05C and was not a severe impairment; the district court did not err in determining that Social Security Ruling 82-62 (Medical-Vocational Profiles Showing an Inability to Make an Adjustment to Other Work) did not apply in this case. 162227U.pdf 02/08/2017 United States v. Milton Poole, III U.S. Court of Appeals Case No: 16-2227 U.S. District Court for the District of South Dakota - Sioux Falls [UNPUBLISHED] [Per Curiam - Before Smith, Arnold and Colloton, Circuit Judges] Criminal case - Sentencing. Anders case. Below-guidelines sentence was not substantively unreasonable. 162474U.pdf 02/08/2017 United States v. Adam Rouillard U.S. Court of Appeals Case No: 16-2474 and No: 16-2476 U.S. District Court for the Northern District of Iowa - Sioux City [UNPUBLISHED] [Per Curiam - Before Smith, Arnold and Colloton, Circuit Judges] Criminal case - Sentencing. Anders case. District court did not abuse its discretion in sentencing defendant after it revoked his supervised release. 163856U.pdf 02/08/2017 Samuel Haley v. United States Government U.S. Court of Appeals Case No: 16-3856 U.S. District Court for the Western District of Missouri - Jefferson City [UNPUBLISHED] [Per Curiam - Before Colloton, Arnold and Gruender, Circuit Judges] Civil case - Civil rights. Plaintiff was not subject to the restriction of 28 U.S.C. Sec. 1915(g) because his pleadings in this court and the district court reflect that he was released from incarceration in August, 2014 and was not a prisoner at the time he filed his complaint and his notice of appeal to this court; plaintiff is granted leave to proceed in forma pauperis and the dismissal of his compliant is vacated; remanded for further proceedings. [ February 07, 2017 ]
153264P.pdf 02/07/2017 Kyle Soltesz v. Rushmore Plaza Civic Center U.S. Court of Appeals Case No: 15-3264 U.S. District Court for the District of South Dakota - Rapid City [PUBLISHED] [Shepherd, Author, with Murphy and Gruender, Circuit Judges] Civil case - Civil rights. In suit alleging municipal liability premised on the decision of a final policymaker, the district court failed to identify the final policymaker as a matter of state law and local city ordinances as required by Supreme Court case law, and the matter is remanded to the district court for a new trial; no legally sufficient evidentiary basis exists to impose liability on a municipality for the decisions of a final policymaker when the district court fails to identify the policymaker as a matter of law before the claims reach the jury. 153465P.pdf 02/07/2017 Jacobi Malone v. Robert Hinman U.S. Court of Appeals Case No: 15-3465 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Smith, Author, with Riley, Chief Judge, and Murphy, Circuit Judge] Civil case - Civil rights. In the circumstances of the case, the shooting officer's decision to shoot the plaintiff as he ran towards another officer and others while holding a gun was objectively reasonable as the shooting officer had probable cause to believe plaintiff posed a threat of serious physical harm to the officer and others, and the district court did not err in granting the shooting officer summary judgment based on qualified immunity on plaintiff's excessive force claim; because the shooting officer did not violate plaintiff's constitutional rights, there can be no Section 1983 or Monell liability on behalf of the police chief or the City of Little Rock. 153514P.pdf 02/07/2017 Richard Aguilar v. PNC Bank, N.A. U.S. Court of Appeals Case No: 15-3514 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Smith, Author, with Riley, Chief Judge, and Murphy, Circuit Judge] Civil case - Financial Fraud. In action by investors defrauded in a criminal Ponzi scheme alleging defendant bank violated Missouri's Uniform Fiduciaries Law, aided and abetted the breach of fiduciary duties, conspired to breach fiduciary cuties and conspired to violate RICO, the district court did not err in granting the bank's motion for summary judgment; [for further details of the criminal case resulting from the fraud, see United States v. Sigillito, 759 F.3d 913 (8th Cir. 2014)]; plaintiffs' RICO and common-law claims fail because their evidence is insufficient to establish a reasonable fact dispute as to whether the defendant's predecessor bank objectively manifested an agreement to participate in criminal activity with the founder of the scheme, had a meeting of the minds with him or substantially assisted or encouraged his conduct; with respect to the claims under Missouri's Uniform Fiduciaries Law, plaintiffs' evidence failed to show the predecessor bank had actual knowledge that the founder of the scheme was breaching his fiduciary duty to the plaintiffs or that the bank's actions were commercially unjustifiable and amounted to bad faith. 153975P.pdf 02/07/2017 American Fire and Casualty Co. v. Mary Hegel U.S. Court of Appeals Case No: 15-3975 U.S. District Court for the District of North Dakota - Bismarck [PUBLISHED] [Strand, Author, with Benton and Shepherd, Circuit Judges] Civil case - Insurance. Under North Dakota choice of law principles, Kentucky law should be applied to interpret the insurance contract, and the district court erred in applying North Dakota law; the finding that the insurer was required to provide Uninsured Motorist coverage to the insured is reversed, and the matter is remanded with directions to enter judgment in favor of the insurer. 161021U.pdf 02/07/2017 Mario Garcia-Solorzano v. Loretta E. Lynch U.S. Court of Appeals Case No: 16-1021 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Riley, Chief Judge, and Wollman and Kelly, Circuit Judges] Petition for Review - Immigration. The IJ had specific and cogent reasons for determining that petitioner was not credible and that decision is supported by substantial evidence; the combination of an adverse credibility finding and the lack of any corroborating evidence for the claim of persecution means the claim must fail, regardless of the reason for the alleged persecution. 161735P.pdf 02/07/2017 Acciona Windpower, etc. v. City of West Branch U.S. Court of Appeals Case No: 16-1735 U.S. District Court for the Northern District of Iowa - Cedar Rapids [PUBLISHED] [Murphy, Author, with Kelly, Circuit Judge, and Montgomery, District Judge] Civil case - Contracts. The district court did not err in determining defendant City of West Branch breached the parties' contract in which it agreed to rebate a portion of plaintiff's taxes for eight years if plaintiff would expand its business into the City; the district court's interpretation of the contract is consistent with its plain language and gives full effect to all of the agreement's provisions; the agreement does not violate Iowa law as municipalities have the ability to make the kind of tax rebate payments contemplated by the agreement; claim plaintiff impermissibly changed its theory of damages on the eve of trial rejected. 161741U.pdf 02/07/2017 Dr. Girish Sahu v. Minneapolis Community and U.S. Court of Appeals Case No: 16-1741 U.S. District Court for the District of Minnesota - Minneapolis [UNPUBLISHED] [Per Curiam - Before Gruender, Benton and Shepherd, Circuit Judges] Civil case. Dismissal affirmed without comment. 161900P.pdf 02/07/2017 American Railcar Industries v. Hartford Insurance Company U.S. Court of Appeals Case No: 16-1900 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Murphy, Author, with Wollman and Melloy, Circuit Judges] Civil case - Insurance. Under Arkansas law, by failing to give Hartford prompt notice that its employee had filed a tort action, plaintiff did not strictly comply with the provisions of the insurance policy and forfeited any right to recover from Hartford; Hartford had not unambiguously denied coverage and plaintiff was not relieved of its duty to inform Hartford of suit. 162413U.pdf 02/07/2017 United States v. Thomas Crossland U.S. Court of Appeals Case No: 16-2413 U.S. District Court for the Western District of Arkansas - Ft. Smith [UNPUBLISHED] [Per Curiam - Before Gruender, Benton and Shepherd, Circuit Judges] Criminal case - Sentencing. Defendant was ineligible for a sentence reduction under 18 U.S.C. Sec. 3582(c)(2) and Amendment 782 as his sentences for his drug offenses were based on the applicable statutory maximums rather than the sentencing guidelines. 166021P.pdf 02/07/2017 Sara Fern v. FedLoan Servicing U.S. Court of Appeals Case No: 16-6021 U.S. Bankruptcy Court for the Northern District of Iowa - Dubuque [PUBLISHED] [Shodeen, Author, with Kressel and Federman, Bankruptcy Judges] Bankruptcy Appellate Panel. The bankruptcy court did not err in discharging debtor's student loans as she lacked the current or future earning power to repay them, was living within her means and would suffer undue hardship if the loans were not discharged. [ February 06, 2017 ]
161803U.pdf 02/06/2017 United States v. Norman Izaguirre Guerrero U.S. Court of Appeals Case No: 16-1803 U.S. District Court for the Northern District of Iowa - Ft. Dodge [UNPUBLISHED] [Per Curiam - Before Riley, Chief Judge, and Loken and Benton, Circuit Judges] Criminal case - Criminal law. Evidence was sufficient to support defendant's conviction for conspiracy to distribute methamphetamine. 161977P.pdf 02/06/2017 United States v. Donovan Johnson U.S. Court of Appeals Case No: 16-1977 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Benton, Author, with Riley, Chief Judge, and Loken, Benton, Circuit Judges] Criminal case - Sentencing. No error in imposing a four-level enhancement under Guidelines Sec. 2K2.1(b)(6)(B) for possessing the handgun in connection with another felony, here, possession of heroin. [ February 03, 2017 ]
152399P.pdf 02/03/2017 United States v. Jonathon Lamb U.S. Court of Appeals Case No: 15-2399 U.S. District Court for the Southern District of Iowa - Davenport [PUBLISHED] [Loken, Author, with Wollman and Bright, Circuit Judges - please note this opinion is being filed by Judges Wollman and Loken pursuant to 8th Cir. Rule 47E following the death of Judge Bright] Criminal case - Criminal law. On remand from the Supreme Court for further consideration in light of Mathis v. United States , 136 S. Ct. 2243 (2016). For the court's prior opinion in the matter, see U.S. v. Mathis, 786 F.3d 1068 (8th Cir. 2015). The Supreme Court's decision in Mathis, which did not address the ACCA's force clause, does not alter the court's prior opinion that defendant's Michigan robbery convictions were ACCA violent felonies, and that portion of the court's prior opinion is reinstated; nor does Mathis alter the court's conclusion that the state court charging document established that defendant's prior Wisconsin burglary conviction was for the crime of generic burglary, an enumerated felony in 18 U.S.C. Sec. 924(e)(2)(B)(ii); as a result, defendant was properly sentenced under the ACCA, and his sentence is affirmed. 161484P.pdf 02/03/2017 Kenneth Njema v. Wells Fargo Bank, N.A. U.S. Court of Appeals Case No: 16-1484 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Gruender, Author, with Smith and Shepherd, Circuit Judges] Civil case - Class actions. In class action alleging eight counts, including RICO violations, arising out of defendant's practice of automatically ordering and charging fees for drive-by inspections of properties when customers fell behind on their mortgage payment, the district court did not err in denying plaintiff's motion to join a trespass claim or in approving the class action settlement. 162007U.pdf 02/03/2017 Rev. Tom Brown v. AR Dept. of Finance etc. U.S. Court of Appeals Case No: 16-2007 U.S. District Court for the Western District of Arkansas - Fayetteville [UNPUBLISHED] [Per Curiam - Before Gruender, Benton and Shepherd, Circuit Judges] Civil case - Civil rights. The private property surrounding the state revenue offices where plaintiff attempted to solicit signatures on petitions was a nonpublic forum and the state's policy prohibiting such actions neither interfered with the free exercise of plaintiff's religion nor substantially burdened a sincere religious exercise or belief; defendant's summary judgment affirmed without further comment. 162314U.pdf 02/03/2017 United States v. David James Marmon U.S. Court of Appeals Case No: 16-2314 U.S. District Court for the District of North Dakota - Bismarck [UNPUBLISHED] [Magnuson, Author, with Kelly and Murphy, Circuit Judges] Criminal case - Criminal law. The evidence was sufficient to support defendant's convictions for receipt of child pornography; no error in admitting child pornography found in unallocated spaces on defendant's computers as the information was put there when defendant tried to delete the materials before the search warrant was executed; no error in allowing the jury to view a compilation of the videos found on the computers, for while such materials are inherently disturbing, admission of the videos was not unfairly prejudicial. 162511U.pdf 02/03/2017 United States v. Stephon Williams U.S. Court of Appeals Case No: 16-2511 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Gruender, Benton and Shepherd, Circuit Judges] Criminal case - Criminal law. Anders case. The government did not breach the plea agreement and the appeal waiver provision of the agreement is enforceable; the waiver applies to all of the issues defendant raises, and the appeal is dismissed. 162688U.pdf 02/03/2017 Rodney McCain v. Carolyn W. Colvin U.S. Court of Appeals Case No: 16-2688 U.S. District Court for the Eastern District of Arkansas - Jonesboro [UNPUBLISHED] [Per Curiam - Before Smith, Arnold and Colloton, Circuit Judges] Civil case - Social Security disability. Substantial evidence supported the ALJ's determinations as to credibility and residual functional capacity, and the denial of benefits is affirmed. [ February 02, 2017 ]
153855P.pdf 02/02/2017 United States v. Charles Schrader U.S. Court of Appeals Case No: 15-3855 U.S. District Court for the District of South Dakota - Rapid City [PUBLISHED] [Per Curiam - Before Riley, Chief Judge, and Wollman and Benton, Circuit Judges] Criminal case - Criminal law. The district court followed Rule 32 in ruling on disputed PSR paragraphs and since Rule 32 did not compel exclusion of the paragraphs, the court correctly refused to redact them. 153976P.pdf 02/02/2017 Lindsey Thut v. Life Time Fitness, Inc. U.S. Court of Appeals Case No: 15-3976 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Wollman, Author, with Riley, Chief Judge, and Benton, Circuit Judge] Civil case - Class Action. Award of $2.8 million to class counsel for attorneys' fees and expenses affirmed. 161211U.pdf 02/02/2017 United States v. Thomas Lynch U.S. Court of Appeals Case No: 16-1211 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Riley, Chief Judge, and Wollman and Kelly, Circuit Judges] Criminal case - Criminal law. Defendant failed to exercise his right to compulsory process, and he could not show any violation of his Sixth Amendment rights; defendant failed to object to the government's questions on cross-examination regarding his prior state convictions and sentences and any impropriety in the line of questioning was not so plain that the district court should have sua sponte put an end to it; in any event, any harm was not so great as to affect substantial rights, especially in light of the substantial evidence showing defendant possessed the firearms which served as the basis for his felon-in-possession conviction. 161340P.pdf 02/02/2017 United States v. Timothy White Plume U.S. Court of Appeals Case No: 16-1340 U.S. District Court for the District of South Dakota - Rapid City [PUBLISHED] [Benton, Author, with Riley, Chief Judge, and Wollman, Circuit Judge] Criminal case - Criminal law. Evidence was sufficient to support defendant's convictions for assault resulting in serious bodily injury and child abuse; no error in refusing to admit evidence regarding a prior child-abuse incident involving his wife and a different child than the one harmed in this incident as it was not proper res gestae evidence or reverse Rule 404(b) evidence; nor did the court err in refusing to permit him to cross-examine his wife about the prior child abuse. 161696P.pdf 02/02/2017 United States v. Robin Sims U.S. Court of Appeals Case No: 16-1696 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Kelly, Author, with Riley, Chief Judge, and Kelly Circuit Judge] Criminal case - Criminal law. Delay created by the government's unsuccessful interlocutory appeal of an exclusion order - see United States v. Sims, 776 F.3d 583 (8th Cir. 2015) - did not create a violation of defendant's Sixth Amendment right to a speedy trial; the delay caused by an interlocutory appeal can be the basis for a Sixth Amendment speedy trial claim; even though the government's dilatory conduct in providing information caused the ruling which gave rise to the interlocutory appeal, the interlocutory appeal, itself, was legitimate and was pursued within a reasonable timeframe; further, while defendant did meet the third requirement for a successful speedy trial claim - assertion of the right - defendant failed to show any particularized prejudice resulting from the delay, and the district court did not err in denying the claim. 161801P.pdf 02/02/2017 Steven Kulkay v. Tom Roy U.S. Court of Appeals Case No: 16-1801 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Ebinger, Author, with Benton and Shepherd, Circuit Judges] Prisoner case- Prisoner Civil Rights. In an action by a former inmate who was injured while using industrial equipment in a prison workshop, the district court did not err in dismissing his Eighth Amendment claim on the basis of qualified immunity; even assuming, for the purposes of analysis, that his assignment to operate a saw without safety guards and without any formal training presented an objective risk of serious harm, plaintiff failed to allege facts sufficient to show prison officials were deliberately indifferent to that risk, as the allegations were not enough to show officials had actual knowledge of the allegedly dangerous conditions or that they willfully overlooked the dangers; state and federal safety regulations do not establish a standard for Eighth Amendment violations; the district court did not err in dismissing the matter without discovery as the allegations of the complaint failed to to state a claim for violation of clearly established law, and defendants were entitled to dismissal before the commencement of discovery. [ February 01, 2017 ]
153909P.pdf 02/01/2017 Jim Sciaroni v. Target Corporation U.S. Court of Appeals Case No: 15-3909 and No: 15-3912 and No: 16-1203 and No: 16-1245 and No: 16-1408 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Shepherd, Author, with Benton, Circuit Judge, and Strand, District Judge] Civil case - Class Action in Target Security Breach. The district court's statement in the class certification order regarding Rule 23(a)(4)'s representation adequacy requirement are conclusions, not reasons, and on their own do not constitute the "rigorous analysis" of whether certification was proper in this case; the court has a continuous duty to reevaluate certification throughout the litigation and the court's order rejecting an allegation of intraclass conflict made before final certification improperly refused to reconsider the issue solely because it had already certified the class; as a result the district court abused its discretion by failing to rigorously analyze the propriety of certification, especially once new arguments regarding the adequacy of representation were raised after preliminary certification, and the matter is remanded to the district court for it to conduct and articulate a rigorous analysis of Rule 23(a)'s certification prerequisites as applied to this case; "costs on appeal" for Rule 7 purposes include only those costs that a prevailing appellate litigant can recover under a specific rule or statute; as a result the bond set in this matter, which included delay-based administrative costs, is reversed and the matter remanded with directions to reduce the Rule 7 bond to reflect only those costs appellees will recover should they succeed in any issues remaining on appeal following the district court's reconsideration of class certification. The panel retains jurisdiction over any remaining issues following the district court's disposition on remand. The district court shall certify its findings and conclusions to this court within 120 days. 161700P.pdf 02/01/2017 United States v. Rashad Russell U.S. Court of Appeals Case No: 16-1700 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Benton, Author, with Shepherd, Circuit Judge, and Ebinger, District Judge] Criminal case - Criminal law. Defendant had no property interest in the rented car in which he was riding, and he had no reasonable expectation of privacy which would give him standing to challenge its search.