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2 F.3d 335 144 L.R.R.M. (BNA) 2107 National Labor Relations Board, for and on behalfof the NATIONAL LABOR RELATIONS PACIFIC MEDICAL CENTER, Respondent Appellant. Nos. 92-15721, 92-15746. United States Court of Appeals Ninth Circuit. Aug. 27, 1993. Prior report: 9th Cir., 991 F.2d 536. Before: WALLACE, Chief Judge, BROWNING, HUG, TANG, SCHROEDER, FLETCHER, FARRIS, PREGERSON, POOLE, D.W. NELSON, CANBY, NORRIS, REINHARDT, BEEZER, HALL, WIGGINS, BRUNETTI, KOZINSKI, NOONAN, THOMPSON, O'SCANNLAIN, LEAVY, TROTT, FERNANDEZ, RYMER, T.G. NELSON, and KLEINFELD, Circuit Judges. ORDER 1 |
738 F.2d 447 Garcia Jaramillov I.N.S. 83-7655 United States Court of Appeals Ninth Circuit. 6/19/84 1 B.I.A. |
709 F.2d 1516 Jonesv Schweiker 81-3585 UNITED STATES COURT OF APPEALS Ninth Circuit 5/2/83 1 D.Or. |
688 F.2d 848 Tunpiboonwongv Landon 81-7800 UNITED STATES COURT OF APPEALS Ninth Circuit 8/5/82 1 B.I.A. |
735 F.2d 1368 Buaphanpongv U.S.I.N.S. 83-7386 United States Court of Appeals Ninth Circuit. 4/24/84 1 B.I.A. |
647 F.2d 169 And Naturalization Service 79-7494 UNITED STATES COURT OF APPEALS Ninth Circuit 3/16/81 1 B.I.A. |
857 F.2d 682 STEAD MOTORS OF WALNUT CREEK, MACHINISTS LODGE NO. 1173, INTERNATIONALASSOCIATION OF MACHINISTS AND AEROSPACE No. 87-2053. United States Court of Appeals Ninth Circuit. Sept. 28, 1988. Prior report: 9th Cir., 843 F.2d 357. Before GOODWIN, Chief Judge, BROWNING, WALLACE, HUG, TANG, SCHROEDER, FLETCHER, FARRIS, PREGERSON, ALARCON, POOLE, NELSON, CANBY, NORRIS, REINHARDT, BEEZER, HALL, WIGGINS, BRUNETTI, KOZINSKI, NOONAN, THOMPSON, O'SCANNLAIN, LEAVY and TROTT, Circuit Judges. ORDER 1 |
776 F.2d 1053 Marrerov I.N.S. 85-7006 United States Court of Appeals Ninth Circuit. 10/25/85 1 B.I.A. |
66 F.3d 336 State of Idaho Department of Health and No. 93-35449. United States Court of Appeals, Ninth Circuit. Sept. 1, 1995. BEFORE: WRIGHT, ALARCON AND CANBY, CIRCUIT JUDGES. ORDER 1 |
698 F.2d 1231 Dougall 82-5148 UNITED STATES COURT OF APPEALS Ninth Circuit 11/8/82 1 D.Ariz. |
893 F.2d 1084w LAWYERS TITLE INSURANCE CORPORATION, a Virginia FEDERAL SAVINGS AND LOAN ASSOCIATION, a federalsavings and loan association, Defendant Appellant. No. 88-15155. United States Court of Appeals Ninth Circuit. Argued and Submitted Sept. 13, 1989.Decided Jan. 11, 1990. 1 |
785 F.2d 316 Mena Osmingv I.N.S. 83-7280 United States Court of Appeals Ninth Circuit. 2/10/86 1 B.I.A. |
649 F.2d 866 and Naturalization Service 80-7134 UNITED STATES COURT OF APPEALS Ninth Circuit 5/11/81 1 B.I.A. |
852 F.2d 503 Fed. Sec. L. Rep. P 93,980Gerald M. HOCKING, DUBOIS and Vitousek & Dick Realtors, Inc., a Hawaiicorporation, Defendants Appellees. No. 85-1932. United States Court of Appeals Ninth Circuit. Aug. 1, 1988. Prior report: 839 F.2d 560. Before GOODWIN, Chief Judge, BROWNING, WALLACE, HUG, TANG, SCHROEDER, FLETCHER, FARRIS, PREGERSON, ALARCON, POOLE, NELSON, CANBY, NORRIS, REINHARDT, BEEZER, HALL, WIGGINS, BRUNETTI, KOZINSKI, NOONAN, THOMPSON, O'SCANNLAIN, LEAVY, and TROTT, Circuit Judges. ORDER 1 |
924 F.2d 1062 Feldman (Robert I.) , a/k/a Feldman (Robert) , a/k/a Feldman (Irwin) , a/k/a Feldman (Aba) , a/k/a Mezie (Aba) ,a/k/a Faye (Robert) v Cox (Harvey) NO. 89-55837 United States Court of Appeals Ninth Circuit. JAN 31, 1991 1 Appeal From: C.D.Cal. 2 |
789 F.2d 922 Yetisv I.N.S. 84-7074 United States Court of Appeals Ninth Circuit. 4/24/86 1 B.I.A. |
977 F.2d 1358 Naim BUTROS, Petitioner,v U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 91-70372. United States Court of Appeals Ninth Circuit. Oct. 23, 1992. Before: WALLACE, Chief Judge, BROWNING, HUG, TANG, SCHROEDER, FLETCHER, FARRIS, PREGERSON, ALARCON, POOLE, D.W. NELSON, CANBY, NORRIS, REINHARDT, BEEZER, HALL, WIGGINS, BRUNETTI, KOZINSKI, NOONAN, THOMPSON, O'SCANNLAIN, LEAVY, TROTT, FERNANDEZ, RYMER, T.G. NELSON, and KLEINFELD, Circuit Judges ORDER 1 |
247 F.3d 966 (9th Cir. 2001) CITY OF AUBURN; CITY OF BREMERTON; CITY OF DES MOINES; CITY OF FEDERAL WAY; A MUNICIPALITY; CITY OF LAKEWOOD; CITY OF MEDINA; CITY OF OLYMPIA; CITY OF PUYALLUP; CITY OF RENTON; CITY OF SEATAC; CITY OF TACOMA; CITY OF TUKWILA; CITY OF UNIVERSITY PLACE; CITY OF VANCOUVER, CORPORATION, Nos. 99-36173, 99-36219 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 6, 2001,Filed April 24, 2001 1 |
709 F.2d 1516 Dougall 82-5735 UNITED STATES COURT OF APPEALS Ninth Circuit 5/23/83 1 D.Ariz. |
208 F.3d 1246 (10th Cir. 2000) ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a Minnesota corporation, Defendant Appellee THE INSURANCE ENVIRONMENTAL LITIGATION ASSOCIATION, Amicus Curiae. No. 98-1075 UNITED STATES COURT OF APPEALS TENTH CIRCUIT April 11, 2000 1 |
196 F.3d 1119 (10th Cir. 1999) ROBERT WILLIAM CLAYTON, GIBSON, Warden of the Oklahoma State Penitentiary; DREW EDMONDSON, Attorney General for the State of Oklahoma, Respondents Appellees. No. 98-5154 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT November 15, 1999. 1 |
838 F.2d 1220 Collinsv Bowen* NO. 87-7393 United States Court of Appeals Eleventh Circuit. JAN 20, 1988 Appeal From: N.D.Ala. VACATED AND REMANDED. * |
807 F.2d 997 *Beaversv Cheaha Mental Health 86-7431 United States Court of Appeals Eleventh Circuit. 12/4/86 1 N.D.Ala. AFFIRMED 2 --------------- |
837 F.2d 1093 Carsonv Martin* NO. 87-7054 United States Court of Appeals Eleventh Circuit. JAN 11, 1988 Appeal From: N.D.Ala. REVERSED AND REMANDED. * |
119 F.3d 9 U.S.v Ukaonu* NO. 95-8422 United States Court of Appeals Eleventh Circuit. June 30, 1997 Appeal From: N.D.Ga. ,No.94003661CR1JOF 1 Affirmed. * |
110 F.3d 798 Wigintonv General Motors Co.* NO. 96-6307 United States Court of Appeals Eleventh Circuit. Mar 04, 1997 Appeal From: N.D.Ala. ,No.9500656cvb1 1 Affirmed. * |
773 F.2d 1239 Aeromar, C. POR A.v Department of Transp., F.A.A. 85-5001 United States Court of Appeals Eleventh Circuit. 9/3/85 |
116 F.3d 1491 U.S.v Zayas Bazan* NO. 96-2203 United States Court of Appeals Eleventh Circuit. May 30, 1997 Appeal From: M.D.Fla. ,No.9500031CRT24A 1 Affirmed. * |
925 F.2d 1474 Estupinan Monterov U.S.* NO. 90-5178 United States Court of Appeals Eleventh Circuit. JAN 30, 1991 1 Appeal From: S.D.Fla. 2 AFFIRMED. * |
837 F.2d 1093 Reesev Bowen* NO. 87-7091 United States Court of Appeals Eleventh Circuit. JAN 14, 1988 Appeal From: M.D.Ala. REVERSED AND REMANDED. * |
119 F.3d 11 U.S.v Weldon* NO. 96-6395 United States Court of Appeals Eleventh Circuit. June 26, 1997 Appeal From: N.D.Ala. ,No.9400294CRBNE 1 Affirmed. * |
837 F.2d 1093 Reynoldsv Butler* NO. 87-7163 United States Court of Appeals Eleventh Circuit. JAN 14, 1988 Appeal From: M.D.Ala. VACATED AND REMANDED. * |
127 F.3d 39 Carrollv City of Dothan, Alabama* NO. 96-6823 United States Court of Appeals Eleventh Circuit. Sept 17, 1997 Appeal From: M.D.Ala. ,No.9401385CVAS 1 Affirmed. * |
Closure of the sitting (The sitting was closed at 11.30 p.m.) |
Closure of the sitting (The sitting was closed at 11.40 p.m.) |
4. Albania ( - Before the vote on Amendment 2: Mr President, we are changing one word: 'all electoral material' should be replaced by 'the electoral material', so 'the' instead of 'all'. |
15. Nomination of a member of the Court of Auditors - Mr Eoin O'Shea (IE) ( |
Closure of the sitting (The sitting was closed at 11.05 p.m.) |
Closure of the sitting (The sitting was closed at 10.20 p.m.) |
Welcome I would like to welcome to the plenary chamber Maria Romana de Gasperi, the daughter of the great Italian statesman and one of the founders of the European Community, Alcide de Gasperi. (Applause) |
Closure of the sitting (The sitting was closed at 12.20 a.m.) |
Closure of the sitting (The sitting was closed at 11.20 p.m.) |
Closure of the sitting (The sitting was closed at 11 p.m.) |
Closure of the sitting (The sitting was closed at 11.35 p.m.) |
Closure of the sitting (The sitting was closed at 11.15 p.m.) |
Closure of the sitting (The sitting was closed at 12.14 a.m.) |
Closure of the sitting (The sitting was closed at 10.55 p.m.) |
3. Burma - conduct of elections and the release of opposition leader Aung San Suu Kyi ( |
Closure of the sitting (The sitting was closed at 11.50 p.m.) |
Closure of the sitting (The sitting was closed at 11.55 p.m.) |
Closure of the sitting (The sitting was closed at 11.45 p.m.) |
4. EU-US Memorandum of Cooperation in civil aviation research and development ( |
Closure of the sitting (The sitting was closed at 10.45 p.m.) |
20. Roadworthiness tests for motor vehicles and their trailers (recast version) ( |
Closure of the sitting (The President declared the sitting closed at 11.05 p.m.) |
Closure of the sitting (The sitting was closed at 11.10 p.m.) |
Closure of the sitting (The sitting was closed at 12.05 a.m.) |
Closure of the sitting (The sitting was closed at 10.30 p.m.) |
21. Request for defence of the immunity of Mario Borghezio (vote) - Gargani report |
Closure of the sitting (The sitting was closed at 11.25 p.m.) |
Case 0:21-mj-06102-JMS Document 5 Entered on FLSD Docket 03/01/2021 Page 1 of 1 UNITED STATES DISTRICT CO URT FILED BY D.C. SOUTHERN DISTRICT OF FLORIDA FE8 26 2221 UN ITED STA TES O F A M ERICA Plaintiff s jo tlol llv1. 'li l/.t 1 - ). ,. VS Case M ICHAEL M IZM CHY Defendant ORDER THIS CAUSE isbeforethe Courtforthe ed defendantts)ona SEALED COM PLAINT UPON OM L motion ofthegovernmentinopen courtthatthe SEALED COM PLAINT be unsealed asto allthe defendants,itishereby ORDERED AND ADJUDGED thatthe Sealed Complaintbe unsealed asto a11partiesin thiscase. DONE AND ORDERED day of February,2021. JARED M .STM U SS UNITED STATES M A GISTM TE JUDGE cc Al1Counselof Record |
Case 20-10553-CSS Doc 1187 Filed 02/24/21 Page 1 of 1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 7 ART VAN FURNITURE, LLC, et al., Case No. 20-10553 (CSS) Debtors. Jointly Administered ORDER SCHEDULING OMNIBUS HEARING DATE IT IS HEREBY ORDERED that the following omnibus hearing date has been scheduled in the above-captioned matter: DATE TIME April 15, 2021 11:00 a.m. prevailing Eastern Time Dated: February 24th, 2021 CHRISTOPHER S. SONTCHI Wilmington, Delaware UNITED STATES BANKRUPTCY JUDGE 05233/003 |
No. 90-593
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA, Plaintiff and Respondent, v. RANDALL DEAN CRISP, CLERK OF 5U;PREiilE COIJR' Defendant and Appellant. STATE Of P |
whether the RLCDPA had any impact upon 11 U.S.C. § 523(a)(8). However, it did note, "The amendments [of 11 U.S.C. §§ 1325(b)(2)(A) and 548(a)(2) through passage of the RLCDPA] do not specifically relate to the Court's consideration of issues under § 523(a)(8)." (alterations added). In Dennison v. Hammond (In re Hammond), 236 B.R. 751, 766 (Bankr.D.Utah 1998), the court found the RLCDPA did not affect the provisions of 11 U.S.C. § 523(a)(15)(A), and held:
Had Congress intended to allow charitable contributions to be factored into income reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor it would have so stated. . . . The negative pregnant rule of statutory construction requires than an express statutory statement, such as the amendments to § 1325(b)(A), contrasted with the statutory silence regarding including [sic] charitable contributions in § 523(a)(15)(A), shows an intent to confine the allowance of charitable contributions to § 1325(b)(A).
Id., at 767-68 (internal citations omitted). |
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole Argued at Richmond, Virginia
GREGORY LELAND RAYMER, S/K/A GREGORY L. RAYMEUR MEMORANDUM OPINION * BY v. Record No. 0586-99-2 JUDGE JAMES W. BENTON, JR. APRIL 11, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge
Linwood T. Wells, III, for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
The trial judge convicted Gregory L. Raymeur of two counts of
fraudulently obtaining money upon a promise to perform
construction. See Code § 18.2-200.1. Raymeur contends the
evidence was insufficient to support the convictions. We disagree
and affirm the convictions.
I.
The evidence proved that on August 28, 1996, Raymeur
contracted with Charles Hall to replace the vinyl siding on Hall's
house. Hall, who had hired Raymeur in the past to perform work,
gave Raymeur a check for $1,000 as "a down payment" on the
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. contract price of $1,600. The contract stipulated that Raymeur
would begin the project September 23, 1996, and complete it in
September. Both parties testified that meant September 1996.
Raymeur never returned to replace the siding on the house.
Hall made telephone calls to Raymeur and went to Raymeur's
residence. He received no responses. On December 3, 1997, Hall
sent to Raymeur at the address listed on the contract, a letter by
certified mail demanding his money. Raymeur did not respond.
The evidence also proved that in August 1996 Raymeur agreed
to replace a piece of siding on Fran Mena's house. Mena gave him
a check for $375, the agreed costs, to purchase new siding and for
his labor. Raymeur nailed the existing piece of siding onto the
house and never returned to install new siding. After Mena left
messages on Raymeur's answering service, Raymeur returned her call
and said that he had problems with his employees. He promised to
complete the job. He never did. In February 1998, Mena sent a
certified letter to Raymeur. The post office returned the
unclaimed letter to Mena.
Raymeur cashed both checks. He testified that he purchased
materials for both projects but had problems with his employees
and his truck. He denied receiving the letters from Hall and
Mena. Raymeur also testified that he has been incarcerated since
July 10, 1997, for crimes arising out of similar construction
agreements. Explaining this failure to complete the two projects
in the year that lapsed before he was incarcerated, Raymeur said
- 2 - he "was running behind on other jobs." Raymeur further testified
that he was behind on several jobs because of his incarceration,
difficulties with his workers, and problems with his truck. While
in jail, Raymeur obtained work release status to complete other
projects that he had failed to perform.
The trial judge convicted Raymeur on both counts.
II.
Code § 18.2-200.1 provides as follows:
If any person obtain |
requested, to Raymeur.
Both Mena and Hall used the address that appeared on Raymeur's
contract with Hall. No evidence tended to prove that the
address was not Raymeur's last known address. Accordingly, the
trial judge had sufficient evidence to prove beyond a reasonable
doubt that both Hall and Mena requested return of their payments
"by certified mail, return receipt requested, [sent] to
[Raymeur's] last known address or to the address listed in the
contract." Code § 18.2-200.1.
For these reasons, we affirm the convictions.
Affirmed.
- 5 - |
IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-IA-00962-SCT
BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING; RICKI R. GARRETT; CARL NICHOLSON, JR.; NAN McGAHEY BAKER; THOMAS W. COLBERT; WILLIAM S. CRAWFORD; LARRY E. HOMAN; J. MARLIN IVEY; JAMES ROY KLUMB; JAMES W. LUVENE; D.E. MAGEE, JR.; VIRGINIA SHANTEAU NEWTON; CASSIE PENNINGTON; THOMAS LAYZELL; UNIVERSITY OF SOUTHERN MISSISSIPPI; HORACE FLEMING; AND JAMES O. WILLIAMS v. OLON E. RAY; TED J. ALEXANDER; JIMMY C. HOPPER; MISSISSIPPI ASSOCIATION OF COMMUNITY AND JUNIOR COLLEGES INTER-ALUMNI ASSOCIATION; BENNIE STONE GOODEN; ROBERT LAMAR GOZA; H. KIRK MOORE, JR.; BEVERLY C. SMITH; K. KEENAN BENEFIELD; CORNELIUS B. CARTER; MEREDITH HARPER; ARVELLE S. HODGE; SHUNYA D. HUNT; MARTHA H. McILWAIN; JASON REESE; JEFF ROBERTSON; LAURA K. PETERSON; TALMADGE PORTIS, JR.; BOBBY F. THRASH; MISSISSIPPI FACULTY ASSOCIATION FOR COMMUNITY AND JUNIOR COLLEGES; MAGDALENE ABRAHAM; KENNETH R. BISHOP; JANICE E. DUNCAN; SANDRA H. GRISHAM; TOM SHEPHERD, JR.; EDDIE C. SMITH; JAMES R. SMITH; KENNETH J. TAYLOR; WALTON B. WILSON; WILLIAM M. BREWER; CURTIS L. DAVIS; MARSHALL THOMAS HEWLETT; LINDA WEEKS HILL; WILLIAM H. SNELL, JR.; L. D. STRINGFELLOW; W.L. VIERLING; MISSISSIPPI STATE BOARD FOR COMMUNITY AND JUNIOR COLLEGES; MISSISSIPPI ASSOCIATION OF COMMUNITY AND JUNIOR COLLEGES DATE OF JUDGMENT: 5/30/2000 TRIAL JUDGE: HON. WILLIAM HALE SINGLETARY COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: REUBEN V. ANDERSON
JAMES W. CRAIG
VINCENT J. BODIN ATTORNEYS FOR APPELLEES: JAMES LAWTON ROBERTSON
PAUL E. BARNES NATURE OF THE CASE: OTHER DISPOSITION: REVERSED AND RENDERED-02/28/2002 MOTION FOR REHEARING FILED: MANDATE ISSUED: 3/21/2002
EN BANC. SMITH, PRESIDING JUSTICE, FOR THE COURT:
¶1. Appellees filed this suit on December 22, 1999, in the Chancery Court of the First Judicial District of Hinds County. Appellees claim that the Board of Trustees of State Institutions of Higher Learning (IHL) violated Mississippi law in allowing the University of Southern Mississippi-Gulf Park (USM-GP) to begin offering freshman and sophomore courses as part of its curriculum. On January 19, 2000, they filed a Motion for Preliminary injunction to enjoin Appellants from commencing the offering of lower level courses at the USM-GP campus. Appellants moved to dismiss the complaint under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. Following a hearing on the motions submitted, the trial court denied the motion to dismiss and granted the preliminary injunction. Appellants, unopposed by Appellees, immediately applied for an interlocutory appeal. On May 30, 2000, the Chancery Court certified the case for interlocutory appeal, which this Court accepted.
¶2. We hold that Miss. Code Ann. § 7-5-1 (1991) requires consent of the Attorney General prior to filing a suit between state agencies. Appellees did not obtain this consent, thus the suit is barred. We also hold that our statutes do not designate a specific location for USM's campus. Thus, IHL created a dual campus rather than an off-campus location when it approved the Gulf Coast location. State law is not violated. Finally, and more importantly, we hold that the State Board for Community and Junior Colleges (SBCJC) cannot be established as |
Cite as 2013 Ark. App. 484
ARKANSAS COURT OF APPBALS DIVISION IV No. CV-13-29
opinion Delivered Septembet 71,, 20'13
APPEAL FROM THE CECIL JAMES REYI\OLDS and INDEPENDENCE COUNTY CIRCUIT DONNA REYI\OLDS, His \Wife; and COURT CECILJ. RE,YNOLDS, SR. [No. CV-2010-300] APPELT,\NTS HONORABLE ADAM I{4zu |
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
NO. 295OO
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAfI
STATE oF HAwArI, P1aintiff-Appe11ee, v. ALOMALIETOA SUA, Defendant-Appellant
ZS¢!. H'¥ 62 &J |
FOR THE REMAINDER OF HIS NATURAL LIFE, AFFIRMED. SAID SENTENCE TO RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT I.
SMITH, P.J., COBB, DIAZ, EASLEY AND CARLSON, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. PITTMAN, C.J., AND GRAVES, J., NOT PARTICIPATING.
1. In selecting the jury for Horne's trial, forty veniremen were considered. Four of the forty veniremen considered were African-Americans. Nine African-Americans were never considered. |
11-4933 (L) United States v. Stith & Brantley
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2012
(Argued: March 6, 2013 Decided: May 30, 2013)
Docket Nos. 11-4933-cr(L) & 11-4935-cr(con)
________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN MONTANEZ, AKA SHA, AKA SHA DIC, AKA SHADIGGA, AKA SHY, KEN KINSEY, JR., AKA BENJI, AKA JADE, KARRIEM WILLIAMS, AKA CALO, LARRY BENTON, AKA WEEZY, AKA LIL WAYNE, AKA SQUEEZY, QUANTAE WRIGHT, AKA LITTLE NOVA, ANDRE ROBINSON, AKA DRE DRE, AKA TEAM, MARC L. STANLEY, AKA IMF, ROBERT MURRAY, AKA KILLA, AKA KILLER, PATRICK BRUMFIELD, AKA P-DOG, MATTHEW BRUMFIELD, AKA AUGUSTUS, AKA STALLION, BOBBY EVERSON, AKA PINO, AKA STYLES, JEFFREY JOHNSON, AKA BLING,
Defendants,
CLIFTON STITH, AKA TONY, AKA YAYO, ADIB BRANTLEY, AKA SHA BLOOD,
Defendants-Appellants.
________________________________________________________
Before: KATZMANN, PARKER, Circuit Judges, and KUNTZ, District Judge.*
Appeal from two orders entered on November 16, 2011 by the United States District
Court for the Northern District of New York (Mordue, J.), which reduced the Defendants-
* The Honorable William F. Kuntz, II, of the United States District Court for the Eastern District of New York, sitting by designation. Appellants' terms of imprisonment under 18 U.S.C. § 3582(c)(2), but declined to depart or vary
in any respect from the Defendants-Appellants' amended guideline ranges. We hold that
U.S.S.G. § 1B1.10(b)(2)(A) prohibited the district court from departing or varying from the
Defendants-Appellants' amended guideline ranges, and that the scope of this prohibition
included departures under U.S.S.G. § 4A1.3. AFFIRMED.
_______________
Counsel for Appellee: PAUL D. SILVER (John M. Katko, on the brief), Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, NY
Counsel for Defendants-Appellants: JAMES P. EGAN (Lisa A. Peebles, on the brief), Federal Public Defender's Office, Syracuse, NY.
_______________
PER CURIAM:
This case presents two issues: (1) whether U.S.S.G. § 1B1.10(b)(2)(A) constitutes a valid
exercise of the United States Sentencing Commission's authority, and thus binds district courts
whenever they reduce a defendant's sentence under 18 U.S.C. § 3582(c)(2); and (2) whether,
even if § 1B1.10(b)(2)(A) binds district courts, it nonetheless permits them to depart from a
defendant's amended guideline range under U.S.S.G. § 4A1.3. Defendants-Appellants Adib
Brantley and Clifton Stith appeal from two orders entered on November 16, 2011 by the United
States District Court for the Northern District of New York (Mordue, J.). In those orders, the
district court reduced Brantley's and Stith's terms of imprisonment under 18 U.S.C.
§ 3582(c)(2). Nonetheless, the district court concluded that U.S.S.G. § 1B1.10(b)(2)(A)
prohibited it from reducing Brantley's and Stith's sentences "to a term [of imprisonment] that is
less than the minimum of the[ir] amended guideline range[s]." Based on this conclusion, the
district court declined to grant Brantley's and Stith's request for a departure under U.S.S.G.
§ 4A1.3, even though it had previously departed under that provision at the Defendants-
Appellants' initial sentencings.
On appeal, Brantley and Stith argue that the district court erred in concluding that
§ 1B1.10(b)(2)(A) prohibited it from |
ARMED WITH HANDGUNS AND CHEMICAL SPRAY. THE SUSPECTS SPRAYED THE VICTIMS WITH CHEMICAL SPRAY. THE SUSPECTS TOOK PROPERTY FROM THE BUSINESS AS WELL AS PROPERTY FROM THE TWO VICTIMS. THE SUSPECTS ALSO TOOK A 1998 GREEN 2 DOOR HONDA CIVIC. THE VICTIMS REPORTED A LARGE AMOUNT OF MONEY TAKEN IN EXCESS OF $8,000.00
ON 01/12/2007 AT APPROXIMATELY 7:15 P.M., A MALE BLACK SUBJECT AND A FEMALE SUBJECT ENTERED ANGEL NAILS LOCATED AT 450 DONELSON PIKE. THE MALE BLACK SUSPECT USED CHEMICAL SPRAY ON THE VICTIM AND THEN TOOK PROPERTY FROM THE BUSINESS. THE PROPERTY WAS U.S. CURRENCY BELIEVED TO BE APPROXIMATELY $500.00. THE BLACK MALE SUSPECT AND THE BLACK FEMALE SUSPECT RAN OUT OF THE BUSINESS TOGETHER.
ON 01/20/2007 AT APPROXIMATELY 6:16 P.M., TWO MALE BLACK SUBJECTS ENTERED THE JACKSON HEWITT TAX SERVICE LOCATED AT 922 MAIN STREET. THE SUSPECTS WERE ARMED WITH A HANDGUN AND CHEMICAL SPRAY. THE SUSPECTS USED CHEMICAL SPRAY ON THE VICTIMS AND TOOK PROPERTY TO INCLUDE A BLACK POCKETBOOK AND CELLPHONES. THE SU SPEC TS LEFT TH E B U SIN ESS. O N 01/20/2007 A T APPROXIMATELY 9:20 P.M., TWO BLACK MALE SUSPECTS ENTERED THE CHINA BUFFET LOCATED AT 5336 CHARLOTTE PIKE. THE SUSPECTS WERE ARMED WITH A HANDGUN AND CHEMICAL SPRAY. THE SUSPECTS SPRAYED THE VICTIM AND TOOK PROPERTY FROM THE BUSINESS. THE PROPERTY WAS U.S. CURRENCY BELIEVED TO BE $500.00. THE SUSPECTS WERE SEEN LEAVING IN A BLACK PONTIAC AZTEC WITH TEMPORARY TAGS.
THE DESCRIPTION OF THE SUSPECTS ON THE ABOVE ROBBERY CASES WERE VERY SIMILAR IN RELATION TO HEIGHT AND WEIGHT.
ON 01/03/2007 THE VEHICLE THAT WAS TAKEN IN THE HOUSE OF CHOY ROBBERY (GREEN 2 DOOR HONDA CIVIC) WAS RECOVERED AT CLAIBORNE AND LAFAYETTE STREET. THE VEHICLE WAS FOUND RUNNING WITH THE DRIVER DOOR OPEN. THERE WAS NO MONEY FOUND IN THE VEHICLE.
ON 01/04/07 A CELL PHONE WAS FOUND IN THE VEHICLE THAT DID NOT BELONG TO MR. AND MRS. CHOY. AN INVESTIGATION WAS CONDUCTED AS TO THE OWNER OF THE PHONE AND THE PHONE BELONGED TO A DONSLERAY BRADY. SHE STATED THAT THE PHONE WAS HERS AND THAT THE FATHER OF HER BABY HAD BEEN USING IT.
ON 01/17/07, DETECTIVES TALKED TO ANTHONY LAMPKINS. ANTHONY WAS QUESTIONED ABOUT THE CELL PHONE AND THE RECOVERED STOLEN VEHICLE. HE STATED THAT HE HAD GOT THE VEHICLE FROM A PERSON NAMED ERIC HOLT. HE STATED THAT ERIC HOLT GOES TO MAPLEWOOD AND IDENTIFIED HIM FROM A STUDENT I.D. PICTURE.
ON 01/19/07 ERIC HOLT WAS INTERVIEWED AT MAPLEWOOD HIGH SCHOOL. HE WAS QUESTIONED ABOUT THE STOLEN GREEN HONDA CIVIC. ERIC STATED THAT HE HAD GOTTEN THE VEHICLE FROM A PERSON NAMED RUSSELL AND ANOTHER PERSON NAMED SEDRIC LAMONT HOLT. HE STATED THAT THEY ROBBED SOME CHINESE PEOPLE AND TOOK THEIR VEHICLE. ERIC STATED THAT THEY BOTH STAY AT 1017 EDGEHILL AVENUE. HE STATED THAT THEY COUNTED OUT $17,557.00 IN CASH OUT ON THE BED. ERIC STATED THAT HE SAW A DRIVER [SIC] LICENSE CREDIT CARD. ERIC STATED THAT THEY WENT TO HICKORY |
HOLLOW MALL WENT SHOPPING. ERIC STATED THAT THEY TOLD HIM THAT THEY USED PEPPER SPRAY WHEN THEY ROBBED THE CHINESE PEOPLE.
ERIC STATED THE NEXT DAY THAT RUSSELL AND OTHERS WENT AND BOUGHT A BLACK TRUCK (AZTEC) WITH PROCEEDS FROM THE ROBBERY. HE STATED THAT THEY BOUGHT THE AZTEC ON CHARLOTTE AVENUE. ERIC STATED THAT RUSSELL HAS TIES TO THE 5 DUEVE HOOVER GANGSTA CRIPS THAT HE STARTED A SMALLER GROUP CALLED THE "CRIME BOSS FAMILY." RUSSELL ALONG WITH OTHERS HAVE TATTOOS INDICATING THAT THEY BELONG TO THE "CRIME BOSS FAMILY." ERIC ALSO INDICATED THAT RUSSELL HAD A LINCOLN CONTINENTAL THAT IS BLACK AND MAROON IN COLOR.
ON 01/19/07 DETECTIVES DROVE BY 1017 EDGEHILL AVENUE AND OBSERVED A BLACK PONTIAC AZTEC AND A BLACK AND MAROON LINCOLN CONTINENTAL. BOTH VEHICLES HAD TEMPORARY TAGS. DETECTIVE WENT TO THE CHARLOTTE PARK AREA TO CHECK WITH CAR DEALERSHIPS TO SEE IF ANYONE HAD PURCHASED A BLACK PONTIAC AZTEC. DETECTIVE CHECK [SIC] WITH CHARLOTTE AVE AUTO SALES AT 3718 CHARLOTTE AVENUE. THE MANAGER ADVISED DETECTIVE THAT A CAR FITTING THAT DESCRIPTION WAS SOLD TO A PERSON NAMED RUSSELL HAMBLIN. ON 01/24/2007 DETECTIVES RE-INTERVIEWED ERIC HOLT. ERIC STATED THAT SEDRIC HOLT WENT TO WHITES CREEK HIGH SCHOOL AND ALSO PEARL COHN. DETECTIVES WENT TO WHITES CREEK HIGH SCHOOL AND FOUND THAT THERE WERE NO PICTURES ON FILE FOR SEDRIC HOLT. DETECTIVES CALLED GALLATIN HIGH SCHOOL AND FOUND WHERE SEDRIC
HOLT HAD A PICTURE ON FILE. THIS PICTURE WAS SENT AND A PHOTO LINE-UP WAS CREATED.
ON 01/25/07 A PHOTO LINE-UP WAS SHOWN TO MR. MICHEAL CHOY. MR. CHOY IDENTIFIED SEDRIC HOLT AS ONE OF THE SUSPECTS THAT ROBBED HIM ON 12/26/06. A WARRANT WAS OBTAINED ON SEDRIC HOLT FOR AGGRAVATED ROBBERY ON 01/25/07 MEMBERS OF THE METROPOLITAN NASHVILLE POLICE DEPARTMENT CONDUCTED SURVEILLANCE AT 1017 EDGEHILL AVENUE. THE BLACK PONTIAC AZTEC WAS OBSERVED LEAVING THE RESIDENCE. IT WAS STOPPED AT 11 TH AVENUE NORTH AND JO JOHNSTON AVENUE. KATHERINE HOLT WAS DRIVING AND CARRIE HOLT WAS ON THE PASSENGER SIDE. KATHERINE HOLT STATED THAT SHE DI D NOT HAVE A VALID DRIVERS LICENSE. KATHERINE AND CARRIE HOLT CAME TO THE NORTH PRECINCT AND WERE INTERVIEWED. THE BLACK PONTIAC AZTEC WAS TOWED TO THE METRO IMPOUND LOT.
KATHERINE HOLT WAS INTERVIEWED. SHE STATED THAT THE BLACK PONTIAC BELONGS TO DAVIDA HOLT AND THAT RUSSELL HAMBLIN IS HER BOYFRIEND. SHE STATED THAT ON THE NIGHT IN QUESTION (12/26/06), DAVIDA, CARRIE, SEDRIC, RUSSELL, AND ERIC WENT SHOPPING AT THE HICKORY HOLLOW MALL. SHE STATED THAT SHE OVERHEARD RUSSELL AND SEDRIC SAY THAT THEY STRUCK IT BIG AND WANTED TO GO SHOPPING. KATHERINE HAS A TATTOO ON HER NECK WITH THE LETTERS "CBF" INDICATING THAT IT STOOD FOR "CRIME BOSS FAMILY." KATHERINE IDENTIFIED HER SON FROM THE PICTURE THAT WAS SHOWN AND ALSO ANOTHER VIDEO SURVEILLANCE PHOTO INVOLVING ANGELS NAILS.
CARRIE HOLT WAS INTERVIEWED. SHE STATED THAT ON 12/26/06 SHE WAS PRESENT WHEN RUSSELL AND OTHERS COUNTED MONEY OUT ON THE BED. SHE STATED THAT IT WAS THOUSANDS OF DOLLARS. |
SHE ALSO STATED THAT THEY WENT SHOPPING ON 12/26/06 AT THE HICKORY HOLLOW MALL. CARRIE STATES RUSSELL HAMBLIN AND SEDRIC HOLT HAVE BEEN ROBBING CHINESE PEOPLE BECAUSE THEY HAVE MONEY. SHE ALSO STATED THAT THEY TOLD HER IF THE VICTIMS DID NOT COOPERATE THEY WOULD MACE THEM. SHE ALSO STATED THAT
THEY HAD MENTIONED A CHINESE RESTAURANT, A CHECK CASHING PLACE, AND AN INSURANCE PLACE. SHE STATED THAT THEY HAVE WEAPONS, INCLUDING SEMI AUTOMATICS, RIFLES, SHOTGUNS AND REVOLVERS.
ON 01/26/2007 SEDRIC HOLT CAME TO THE NORTH PRECINCT AND TALKED TO DETECTIVES. HE WAS PLACED UNDER ARREST AND MIRANDIZED. HE ADMITTED TO ROBBING THE FOLLOWING BUSINESSES: HOUSE OF CHOY, ANGEL NAILS, JACKSON HEWITT, AND CHINA BUFFET. HE WENT INTO DETAIL AS TO HIS INVOLVEMENT IN THE ROBBERIES AS WELL AS IMPLICATING OTHERS. HE IMPLICATED RUSSELL HAMBLIN IN ALL THE ROBBERIES. HE STATED THAT RUSSELL WENT IN WITH HIM AT THE HOUSE OF CHOY. HE STATED THAT THERE WAS A LARGE AMOUNT OF MONEY TAKEN. SEDRIC STATED THAT AFTER THE ROBBERY RUSSELL WENT TO A CAR LOT ON CHARLOTTE AVENUE AND USED THE PROCEEDS FROM THE HOUSE OF CHOY TO BUY A BLACK PONTIAC AZTEC. SEDRIC STATED THAT RUSSELL DROVE ON THE ON THE [SIC] OTHER ROBBERIES.
ON 01/26/07 DETECTIVES WERE ADVISED THAT RUSSELL HAMBLIN HAD BEEN DETAINED AT 1017 EDGEHILL AVENUE. RUSSELL HAMBLIN AGREED TO TALK TO DETECTIVES AND WAS TAKEN TO THE NORTH PRECINCT. RUSSELL HAMBLIN DENIED ANY INVOLVEMENT OF ANY ROBBERIES. HE WAS ASKED ABOUT HOW HE PAID FROM THE VEHICLES THAT HE PURCHASED AND HE STATED THAT HE PURCHASED THEM FOR ILLEGAL DRUG SALES. HE STATED THAT HE DID NOT HAVE A JOB. HE WAS ASKED ABOUT BEING ON PROBATION. HE STATED THAT HE WAS ON PROBATION AND THAT HE THOUGHT HE HAD BEEN REVOKED BECAUSE HE HAD CAUGHT A CHARGE FOR DRIVING ON A SUSPENDED DRIVERS LICENSE. MR. HAMBLIN STATED THAT HE WAS ON PROBATION FOR ROBBERY. MR. HAMBLIN WAS TOLD THAT HE HAD NO OUTSTANDING WARRANTS ON HIM AND HE WAS FREE TO GO ON 01/31/07. DAVIDA HOLT, THE GIRLFRIEND OF RUSSELL HAMBLIN WAS ARRESTED ON AN OUTSTANDING WARRANT FOR THE ROBBERY OF ANGEL NAILS. SHE WAS IDENTIFIED AS THE FEMALE THAT WAS WITH SEDRIC HOLT WHEN THE BUSINESS WAS ROBBED.
ON 02/01/07 RUSSELL HAMBLIN WAS ARRESTED FOR DRIVING ON A SUSPENDED DRIVERS LICENSE.
RUSSELL HAMBLIN'S PROBATION OFFICER WAS NOTIFIED ABOUT RUSSELL HAMBLIN'S ARREST, AND A PROBATION VIOLATION WARRANT WAS ISSUED. ON 02/23/07 RUSSELL HAMBLIN WAS ARRESTED AT 6116 NEW YORK AVENUE APARTMENT C. HE WAS BROUGHT TO THE NORTH PRECINCT AND INTERVIEWED. HE DENIED ANY INVOLVEMENT IN THE ROBBERIES. HE STATED THAT HE HAD BEEN STAYING AT 55 SOUTH 6 TH STREET WITH HIS BABY'S MOTHER.
ON 02/23/07 DAVIDA HOLT WAS INTERVIEWED AT THE NORTH PRECINCT. SHE GAVE A STATEMENT. SHE STATED THAT SHE WAS PRESENT THE NIGHT WHEN THE MONEY WAS COUNTED OUT AT 1017 EDGEHILL AVENUE, SHE STATED THAT THEY HAD PARKED THE GREEN CAR DOWN THE ROAD FROM WHERE THEY WERE STAYING. |
SHE STATED THAT SHE SAW CREDIT CARDS AND IDENTIFICATIONS BELONGING TO CHINESE PEOPLE. SHE STATED THAT SEDRIC HAD A GUN. SHE STATED THAT THE AMOUNT THAT WAS COUNTED WAS $17,000.00. DAVIDA SAID THAT AFTER THEY COUNTED ALL THE MONEY ALL OF THE OTHER ITEMS WERE THROWN IN THE DUMPSTER. RUSSELL TOLD HER THAT HE SPRAYED THE MALE CHINESE VICTIM WITH MACE AND TOLD SEDRIC TO GET THE KEYS OUT OF THE VICTIMS POCKET. SHE ALSO SAID THAT RUSSELL ARRIVED AT THE APARTMENT FIRST AND HE KEPT LOOKING OUT OF THE WINDOW WONDERING WHERE SEDRIC WAS. DAVIDA SAID THAT SEDRIC CALLED RUSSELL TWO DIFFERENT TIMES FROM PAYPHONES BECAUSE HE WAS LOST. HE WAS WANTING TO "DITCH" THE STOLEN CAR, BUT RUSSELL YELLED AT HIM TO STICK WITH THE PLAN AND COME TO THE APARTMENT.
DAVIDA STATED THAT SHE WENT SHOPPING WITH THEM THAT NIGHT. SHE STATED THAT THE NEXT DAY RUSSELL HAMBLIN AND OTHERS WENT TO CHARLOTTE AVENUE AND PURCHASED A BLACK PONTIAC AZTEC. SHE ALSO STATED THAT THEY WENT TO WALMART AND PURCHASED A LARGE SAFE. SHE STATED THAT THE SAFE WAS PURCHASED AT WALMART ON NOLENSVILLE ROAD. DAVIDA STATED THAT THE SAFE WAS TAKEN TO 550
SOUTH 6TH STREET. DAVIDA SAID TAT RUSSELL WENT TO SUPER D'S NIGHTCLUB THE WEEKEND OF THE ROBBERY AND HE WAS BUYING DRINKS AND FLASHING SO MUCH MONEY THAT THE OWNER TOLD HIM THAT HE BETTER PUT HIS MONEY AWAY. IN AN INTERVIEW, HAMBLIN TALKED ABOUT BEING AT SUPER D'S NIGHTCLUB. WHEN RUSSELL HAMBLIN WAS ARRESTED A PIECE OF PAPER WAS FOUND WITH INFORMATION ABOUT THE "CRIME BOSS FAMILY." ONE OF THE NOTATIONS SAID THAT WAYNE HOLT HAD BEEN DROPPED AS A MEMBER. DAVID WAS ASKED ABOUT THIS AND SHE SAID THAT WAYNE IS ERIC HOLT. RUSSELL HAD HEARD THAT HE HAD TALKED TO THE POLICE, SO HE WAS NO LONGER A MEMBER OF THE "CRIME BOSS FAMILY." ANOTHER NOTATION SAID THAT THE "CRIME BOSS FAMILY" WAS FIRST NOTICED BY AUTHORITIES ON 01/26/07 AND IT ALSO SAID THAT ONE OF THE MOST HATED THINGS WERE THE POLICE. ACCORDING TO THE PAPER THE GROUP WAS STARTED NOVEMBER 2006.
ON OR ABOUT 02/16/07 DAVIDA STATED THAT SHE OBSERVED THIS SAFE AT 550 SOUTH 6TH STREET. SHE STATED THAT RUSSELL TOLD HER THE REASON HE BOUGHT THE SAFE WAS TO KEEP THE MONEY IN THE SAFE AND TO KEEP THE OTHER PEOPLE HE ASSOCIATED WITH FROM STEALING IT FROM HIM. DAVIDA ALSO STATED THAT THE SAFE WAS BOUGHT WITH PROCEEDS FROM THE HOUSE OF CHOY ROBBERY.
ON OR ABOUT 02/21/07 DAVIDA STATED THAT RUSSELL TOLD HER THAT HE THOUGHT HIS BABY'S MOTHER, SHARDEA TAYLOR HAD BEEN STEALING MONEY FROM HIS SAFE.
BASED ON THE TOTALITY OF THE CIRCUMSTANCES IT IS BELIEVED THAT RUSSELL HAMBLIN HAS BEEN INVOLVED IN CRIMINAL ACTIVITY INCLUDING AGGRAVATED ROBBERY AND ILLEGAL DRUG SALES.
THE METHOD OF OPERATION OF THE ROBBERIES ARE VERY SIMILAR WHERE THE SUSPECTS USED MACE AND A HAND GUN. THE SUSPECTS USUALLY TARGETED PERSONS OF ASIAN DESCENT. WITNESSES HAVE GIVEN |
STATEMENTS IMPLICATING RUSSELL HAMBLIN AND OTHERS IN CRIMINAL ACTIVITY
INCLUDING AGGRAVATED ROBBERY. RUSSELL HAMBLIN HAS ADMITTED TO SELLING ILLEGAL DRUGS AND USING [SIC] THE AGGRAVATED ROBBERY. RUSSELL HAMBLIN HAS ADMITTED THAT HE HAS NO OTHER MEANS OF INCOME FROM A LEGITIMATE WORK PLACE. INFORMATION WAS RECEIVED THAT A SAFE WAS PURCHASED TO CONCEAL PROCEEDS FROM CRIMINAL ACTIVITY SUCH AS AGGRAVATED ROBBERY AND ILLEGAL DRUG SALES. RUSSELL HAMBLIN HAS ADMITTED THAT HE IS A GANG MEMBER.
ON 02/03/07, A SEARCH WARRANT WAS EXECUTED AT 550 SOUTH 6th STREET. MEMBERS OF THE METROPOLITAN NASHVILLE POLICE DEPARTMENT ANNOUNCED THEIR PRESENCE AND KNOCKED ON THE DOOR. IT WAS ANNOUNCED THAT POLICE WERE PRESENT AND THAT A SEARCH WARRANT WAS TO BE SERVED. SEVERAL MINUTES WENT BY BEFORE ENTRY WAS MADE. THE APARTMENT WAS CLEARED AND A SAFE WAS FOUND UPSTAIRS IN A BEDROOM CLOSET. PAPERS WERE FOUND AT THE APARTMENT INDICATING THAT RUSSELL HAMBLIN WAS RECEIVING MAIL AT 550 SOUTH 6 TH STREET. THE SAFE WAS PRINTED AND PHOTOGRAPHED. THE SAFE WAS OPENED AND NOTHING WAS FOUND. THE SAFE WAS IN AN UPSTAIRS CLOSET, WHICH IS EXACTLY WHERE DAVIDA HOLT SAID IT WOULD BE.
SHARDEA TAYLOR ARRIVED AT 550 SOUTH 6 TH STREET AND INQUIRED ABOUT ENTRY INTO HER APARTMENT. SHE WAS ADVISED THAT A SEARCH WARRANT WAS EXECUTED AND THAT NO ONE ANSWERED THE DOOR AND ENTRY WAS MADE. DETECTIVES TALKED TO HER ABOUT RUSSELL HAMBLIN. SHE STATED THAT RUSSELL HAMBLIN IS THE FATHER TO AT LEAST ONE OF HER CHILDREN. SHE STATED THAT HE HAS NOT BEEN THERE IN ABOUT A WEEK. DETECTIVES ASKED ABOUT THE SAFE AND SHE STATED THAT RUSSELL BROUGHT THE SAFE OVER TO HER APARTMENT ABOUT THE SAME TIME HER CHILD WAS BORN. HER CHILD WAS BORN ON OR ABOUT 12/31/06. SHE WAS ASKED WHY HE BROUGHT IT OVER AND SHE STATED THAT SHE DID NOT KNOW.
DETECTIVES ASKED HER IF SHE WAS FAMILIAR WITH DAVIDA HOLT AND SHE STATED THAT SHE KNEW HER BUT DID NOT HAVE ANYTHING TO DO WITH HER. DETECTIVES NOTICED THAT THE
VEHICLE SHARDEA AND HER BROTHER ARRIVED IN. THE VEHICLE THEY WERE DRIVING BELONGED TO DAVIDA HOLT. DETECTIVES ASKED STEVEN HOW HE KNEW DAVIDA AND HE STATED THAT SHE WAS A FRIEND AND THAT SHE WAS RENTING AN APARTMENT FROM HIM AT 6116 NEW YORK AVENUE. STEVEN ALSO STATED THAT HE WAS FAMILIAR WITH RUSSELL HAMBLIN. HE STATED THAT HE CAUGHT A GUN CHARGE WHILE BEING ASSOCIATED WITH HIM BASED ON THE REPORTS, WITNESS STATEMENTS, AND CONFESSIONS, IT IS BELIEVED THAT RUSSELL LENOX HAMBLIN AND SEDRIC LAMONT HOLT ROBBED THE HOUSE OF CHOY AT 3825 DICKERSON PIKE. SEDRIC ADMITTED TO HIS INVOLVEMENT AND IMPLICATED RUSSELL LENOX HAMBLIN.
WITNESSES INCLUDING ERIC HOLT, CARRIE HOLT, KATHERINE HOLT, AND DAVIDA HOLT WERE EITHER PRESENT WHEN MONEY WAS COUNTED FROM THE HOUSE OF CHOY ROBBERY OR HEARD RUSSELL HAMBLIN AND SEDRIC HOLT DISCUSSING ROBBERIES INCLUDING CHINESE RESTAURANTS.
Sentencing Hearing
At the sentencing hearing, Donna Osborne testified that she was present during the robbery of the Angel |
TO DISCRIMINATE AGAINST VENIRE MEMBERS ON THE BASIS OF RACE AND GENDER.
GUILT PHASE ISSUES
IX. THE GUILT STAGE INSTRUCTIONS WERE FUNDAMENTALLY FLAWED.
A. IT WAS ERRONEOUS AND SEVERELY PREJUDICIAL FOR THE COURT TO DENY DEFENDANT'S REQUEST FOR A LIMITING INSTRUCTION DIRECTING JURORS NOT TO CONSIDER EVIDENCE OF HIS PRIOR ASSAULT WITH INTENT TO RAPE CONVICTIONS AS PROPENSITY EVIDENCE OF GUILT.
B. THE CIRCUIT COURT'S CHARGE ON RAPE FAILED TO INFORM JURORS THAT SEXUAL INTERCOURSE WAS AN ESSENTIAL ELEMENT OF OR OTHERWISE PROPERLY DEFINE THIS CRIME.
X. THE LOWER COURT VIOLATED THE DEFENDANT'S RIGHT TO COUNSEL WHEN IT REFUSED HIS REQUEST THAT HIS STAND BY (sic) COUNSEL BE ALLOWED TO GIVE THE DEFENSE'S CLOSING ARGUMENT AT THE GUILT INNOCENCE PHASE.
XI. THE STATE FAILED TO OFFER LEGALLY SUFFICIENT EVIDENCE THAT THE VICTIM HAD BEEN RAPED, AN ESSENTIAL ELEMENT OF THE CHARGE.
XII. THE DISTRICT ATTORNEY ENGAGED IN SEVERAL SERIOUS INSTANCES OF MISCONDUCT IN HIS GUILT PHASE SUMMATION.
A. IT WAS IMPROPER FOR THE STATE TO URGE JURORS TO CONSIDER HEARSAY ACCUSATIONS ABOUT EDDIE HOWARD BITING HIS GIRLFRIEND AND THREATENING ANOTHER WOMAN AS SUBSTANTIVE EVIDENCE OF HIS GUILT.
B. THE DISTRICT ATTORNEY FALSELY TOLD JURORS THAT BITE MARK COMPARISONS WERE AS CERTAIN AND RELIABLE AS FINGERPRINT EVIDENCE.
C. THE PROSECUTOR BLATANTLY AND PREJUDICIALLY MISSTATED THE EVIDENCE WHEN HE TOLD JURORS THAT EDDIE HOWARD HAD DISPLAYED KNOWLEDGE OF THE VICTIM'S HOME THAT COULD ONLY HAVE BEEN GAINED THROUGH PARTICIPATION IN THE OFFENSE.
XIII. THE STATE'S PATHOLOGIST, STEVEN HAYNE, INVADED THE JURY'S PROVINCE AND OTHERWISE GAVE UNRELIABLE, IMPROPER TESTIMONY WHEN HE CLAIMED THAT CERTAIN INJURIES TO THE VICTIM'S VAGINA WERE CONSISTENT WITH RAPE.
XIV. TESTIMONY FROM THE STATE'S DENTAL EXPERT, MICHAEL WEST, CLAIMING TO HAVE POSITIVELY MATCHED EDDIE HOWARD'S TEETH TO A BITEMARK ON THE VICTIM'S BODY WAS CONSTITUTIONALLY UNRELIABLE, AS IT IS WELL-ESTABLISHED IN THE SCIENTIFIC COMMUNITY THAT SUCH COMPARISONS ARE NOT POSSIBLE.
XV. IT WAS REVERSIBLE ERROR TO ADMIT STATE'S EVIDENCE OF DENTAL IMPRESSIONS TAKEN FROM EDDIE HOWARD BECAUSE THESE WERE THE PRODUCT OF AN ILLEGAL ARREST AND ILLEGAL SEIZURE OF HIS DENTURES. SENTENCING PHASE ISSUES
XVI. THE USE OF EDDIE HOWARD'S PRIOR CONVICTIONS TO ESTABLISH THE "PRIOR VIOLENT FELONY" AGGRAVATOR WAS IMPROPER, FOR ASSAULT WITH INTENT TO RAVISH IS NOT PER SE A CRIME INVOLVING THE USE OR THREAT OF VIOLENCE.
XVII. THE SPECIAL RELIABILITY REQUIREMENTS THAT ATTEND THE USE OF THE DEATH PENALTY OBLIGATED THE COURT TO CHARGE STANDBY COUNSEL WITH THE DUTY TO INVESTIGATE AND PRESENT MITIGATING EVIDENCE.
¶3. As we deem issues I, X, and XIV to be dispositive of the case and to require reversal, we do not endeavor to discuss the other issues raised by the appellant.
STATEMENT OF THE FACTS
¶4. Georgia Kemp, age eighty-two, was a resident of Columbus, Mississippi. On February 2, 1992, after a neighbor observed smoke coming from the Kemp residence, the Columbus Fire Department arrived at the home and discovered the front door standing open. The firefighters entered and found a smoldering fire in the living room which had |
on the agency record is denied, and judgment will enter
for Defendant pursuant to USCIT R. 52.2(b).
/s/ Jane A. Restani Jane A. Restani Chief Judge
Dated: This 12th day of September, 2005. New York, New York ERRATUM
Please make the following changes to Cogne Acciai Speciali S.P.A. v. United States, No. 04-00411, Judgment to Slip. Op. 05-122 (CIT September 12, 2005):
• Page 28, line 11: Replace "USCIT R. 52.2(b)" with "USCIT R. 56.2(b)"
February 7, 2005 |
13-566-cr United States v. Baker
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 22nd day of May, two thousand thirteen. 5 PRESENT: JON O. NEWMAN, 6 AMALYA L. KEARSE, 7 DEBRA ANN LIVINGSTON, 8 Circuit Judges, 11 UNITED STATES OF AMERICA, 12 Appellee, 14 -v- No. 13-566-cr 16 JAMIE BAKER, 18 Defendant-Appellant, 20 RICHARD ANDERSON, AKA PRETTY, AKA PRETTY RICKY, HENRY BEARD, AKA JU JU, JUSTIN BELLE, 21 AKA JUS, AKA JUST BLAZE, MIKELL BUTLER, AKA KELLS, LINSANDRO BROWN, AKA C, TOMMIE 22 CALDWELL, AKA T-BOY, AKA TOMMIE GUN, SHAQUAN HAYES, AKA QUAN, ERIC HARRIS, AKA EASY 23 E, AKA E, RICARDO HENDERSON, AKA RUCKUS, AKA MATEO, AKA TEO, QIERRE JACOBS, AKA 24 STACKS, AKA Q-STACKS, CHARLES LEWIS, JR., AKA CHUCK D, ARSHEEN MONTGOMERY, AKA DUDIE, 25 PHILLIP MOORE, AKA SKRILLA, AKA P-CRACK, AKA BIG PHIL, CURTIS PERKINS, AKA CURT, QUINTEL 26 RAYSOR, AKA QUINNY, AKA Q DA DON, KWAME ROBINSON, AKA KWA, LEON ROBINSON, AKA EON, 27 AKA E-BLIX, JOSE SERRANO, AKA RICO, KAWAUN WIGGINS, AKA DOUGHBOY, DASHAE HARRIS, 28 KADEEM PELL, DESHAWN TARVER, CHARLES EDWARDS, BRIAN WILDER, VAL SOCINSKI, KEVIN 29 ROUNDSVILLE, CHARLES PROCELLA, 31 Defendants. 3 LAURIE S. HERSHEY, Esq., Manhasset, NY for 4 Defendant-Appellant. 6 PAULA RYAN CONAN, JEFFREY COFFMAN, Assistant 7 United States Attorneys, for Richard S. Hartunian, 8 United States Attorney for the Northern District of 9 New York, Syracuse, NY for Appellee.
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
12 DECREED that the judgment entered February 11, 2013, is AFFIRMED.
13 Defendant-Appellant Jamie Baker ("Baker") appeals from a judgment of the United States
14 District Court for the Northern District of New York (Hurd, J.), entered February 11, 2013, revoking
15 Baker's supervised release upon a finding that she had violated the conditions of that release, and
16 sentencing her to six months' incarceration, with a 48-month term of supervised release to follow.
17 One month earlier, on January 11, 2013, Baker, who pled guilty to the distribution of controlled
18 substances in violation of 18 U.S.C. § 1952(a)(3) on August 22, 2012, had been sentenced to a
19 below-Guidelines sentence of time served with a supervised release period of five years; standard
20 condition number 7 of Baker's supervised release provided, in |
FILED United States Court of Appeals Tenth Circuit
June 27, 2013 PUBLISH Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
HOBBY LOBBY STORES, INC.; MARDEL, INC.; DAVID GREEN; BARBARA GREEN; MART GREEN; STEVE GREEN; DARSEE LETT,
Plaintiffs-Appellants, v. No. 12-6294 KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; HILDA SOLIS, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; TIMOTHY GEITHNER, Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants-Appellees. ______________________
EMERITUS PROFESSOR OF LAW CHARLES E. RICE; PROFESSOR OF LAW BRADLEY P. JACOB; TEXAS CENTER FOR DEFENSE OF LIFE; NATIONAL LEGAL FOUNDATION; LIBERTY, LIFE AND LAW FOUNDATION; AMERICAN CENTER FOR LAW AND JUSTICE; BREAST CANCER PREVENTION INSTITUTE; BIOETHICS DEFENSE FUND; LIFE LEGAL DEFENSE FOUNDATION; THE RIGHT REVEREND W. THOMAS FRERKING, OSB; MISSOURI ROUNDTABLE FOR LIFE; ARCHDIOCESE OF OKLAHOMA CITY; EAGLE FORUM; SANFORD C. COATS; SENATOR DANIEL COATS; SENATOR THAD COCHRAN; SENATOR MIKE CRAPO; SENATOR CHARLES GRASSLEY; SENATOR ORRIN G. HATCH, Senator; SENATOR JAMES M. INHOFE; SENATOR MITCH MCCONNELL; SENATOR PAT ROBERTS; SENATOR RICHARD SHELBY; CONGRESSMAN LAMAR SMITH; ASSOCIATION OF GOSPEL RESCUE MISSIONS; PRISON FELLOWSHIP MINISTRIES; ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; NATIONAL ASSOCIATION OF EVANGELICALS; ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE; CHRISTIAN LEGAL SOCIETY; ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS; AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS AND GYNECOLOGISTS; CHRISTIAN MEDICAL ASSOCIATION; CATHOLIC MEDICAL ASSOCIATION; NATIONAL CATHOLIC BIOETHICS CENTER;
PHYSICIANS FOR LIFE; NATIONAL ASSOCIATION OF PRO LIFE NURSES; UNITED STATES JUSTICE FOUNDATION; CONGRESSMAN FRANK WOLF; STATE OF OKLAHOMA; WYWATCH FAMILY ACTION, INC.; THE C12 GROUP; PHYSICIANS FOR REPRODUCTIVE HEALTH; THE AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS; THE AMERICAN SOCIETY FOR EMERGENCY CONTRACEPTION; ASSOCIATION OF REPRODUCTIVE HEALTH PROFESSIONALS; AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE; SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE; AMERICAN MEDICAL WOMEN'S ASSOCIATION; NATIONAL ASSOCIATION OF NURSE PRACTITIONERS IN WOMEN'S HEALTH; JAMES TRUSSELL; SUSAN F. WOOD; DON DOWNING; KATHLEEN BESINQUE; AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; UNION FOR REFORM JUDAISM; CENTRAL CONFERENCE OF AMERICAN RABBIS; WOMEN OF REFORM JUDAISM; HINDU AMERICAN FOUNDATION; NATIONAL WOMEN'S LAW CENTER; AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN
FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME); BLACK WOMEN'S HEALTH IMPERATIVE; BOULDER NOW; COLORADO ORGANIZATION FOR LATINA OPPORTUNITY AND REPRODUCTIVE RIGHTS (COLOR); GENDER IMPACTS POLICY, a project of the Center of Southwest Culture; IBIS REPRODUCTIVE HEALTH; LAW STUDENTS FOR REPRODUCTIVE JUSTICE; MERGERWATCH; NARAL PRO-CHOICE AMERICA; NARAL PRO-CHOICE COLORADO; NARAL PRO-CHOICE WYOMING; NATIONAL ORGANIZATION FOR WOMEN FOUNDATION; NATIONAL ORGANIZATION FOR WOMEN-SANTA FE CHAPTER (SANTA FE NOW); NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES; NEW MEXICO-NATIONAL ORGANIZATION FOR WOMEN (NMNOW); PLANNED PARENTHOOD OF ARKANSAS & EASTERN OKLAHOMA, INC., d/b/a Planned Parenthood of Heartland-Oklahoma; PLANNED PARENTHOOD ASSOCIATION OF UTAH; PLANNED PARENTHOOD OF KANSAS & MID-MISSOURI; PLANNED PARENTHOOD OF THE ROCKY MOUNTAINS, INC.; POPULATION CONNECTION;
RAISING WOMEN'S VOICES FOR THE HEALTH CARE WE NEED; SERVICE EMPLOYEES INTERNATIONAL UNION; SOUTHWEST WOMEN'S LAW CENTER; |
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER '
NO. 30338
IN THE INTERMEDIATE C |
in negotiations concerning the legal malpractice claim. After negotiations, Scott filed a petition to compromise the claim for $450,000 to the estate and to establish a quantum meruit fee for Gillis. The chancellor approved the compromise and continued the hearing on the quantum meruit issue. In a later evidentiary hearing, the chancellor awarded Gillis a quantum meruit fee of $21,210. Gillis and LLF timely filed their notice of appeal to this court, raising four issues on appeal:
I. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR AND ABUSED HIS DISCRETION IN AWARDING THE APPELLANTS A $21,210 ATTORNEYS' FEE BASED UPON THE RECOVERY OF $450,000 IN A COMPROMISE AND SETTLEMENT OF A CLAIM THAT SURVIVED THE DECEDENT WHERE THE APPELLANTS INVESTIGATED AND PROSECUTED THE CLAIM DURING THE PERIOD OCTOBER 1997 TO APRIL 1999, AND WHERE THE DOCUMENTARY EVIDENCE SHOWS AND THE APPELLEE AND ALL INTERESTED PERSONS ADMIT THAT THE APPELLEE DID VIRTUALLY ALL OF THE WORK NECESSARY TO OBTAIN THE RECOVERY, AND WHERE THE APPELLANTS OBTAINED A DECREE FROM THE CHANCELLOR ON DECEMBER 31, 1997 AUTHORIZING THEM TO REPRESENT THE FORMER ADMINISTRATRIX AS TORT CLAIMS COUNSEL, AND WHERE THE DECREE AUTHORIZING THE APPELLANTS TO REPRESENT THE FORMER ADMINISTATRIX APPROVED A 33 1/3 PERCENT CONTINGENCY FEE, AND WHERE THE CURRENT ADMINISTRATOR AND THE DECEDENT'S WIDOW AND THEIR LAWYERS ENTERED INTO AN EXPLICIT, WRITTEN AGREEMENT ON MARCH 29, 1999 WHEREBY NO CHALLENGE WOULD BE MADE TO THE APPELLANTS' RECOVERABLE FEES, AND WHERE THE CHANCELLOR OPTED NOT TO ENFORCE THE MARCH 29, 1999 AGREEMENT NOT TO CHALLENGE THE APPELLANTS' RECOVERABLE FEES, AND WHERE THE ULTIMATE FEE AWARDED BY THE CHANCELLOR REPRESENTED 4.7% OF THE $450,000 RECOVERY?
II. WHETHER THE CHANCELLOR ERRED AND ABUSED HIS DISCRETION IN REFUSING TO AWARD LITIGATION EXPENSES AND PREJUDGMENT INTEREST?
III. WHETHER THE CHANCELLOR ERRED IN IDENTIFYING THE PROCEDURAL POSTURE OF THE CASE AND THE RELIEF SOUGHT BY THE APPELLANTS, AND WHETHER THESE ERRORS RESULTED IN A JUDGMENT THAT WAS ERRONEOUS AS A MATTER OF LAW?
IV. WHETHER THE CHANCELLOR ERRED IN IDENTIFYING THE "SPECIFIC ISSUE" AT THE TRIAL COURT LEVEL, AND WHETHER THIS ERROR RESULTED IN A JUDGMENT THAT WAS ERRONEOUS AS A MATTER OF LAW? ¶5. The Estate cross-appealed, raising the following issue:
V. WHETHER THE LOWER COURT ERRED BY FAILING TO REDUCE THE APPELLANTS' QUANTUM MERUIT FEE DUE TO THEIR CONFLICT OF INTEREST ARISING OUT OF THEIR DUAL REPRESENTATION OF MARIETTA AND THE ESTATE?
FACTS
¶6. On July 6, 1991, Alexander Taylor Gillies, Jr, (Gillies) was beaten by Delbert L. Brown, a pretrial detainee, while they were incarcerated at the City of Corinth jail. Gillies died on February 14, 1993, due to myocardial infarction. Before his death, Gillies hired LLMB to prosecute his claims against the persons and entities responsible for the beating and the resultant injuries. LLMB failed to file a lawsuit within the one- year statute of limitations period for assault and battery claims. LLMB also failed to file a lawsuit or settle timely Gillies's claims against the City of Corinth.
¶7. On September 9, 1993, Marietta |
Electronically Filed Supreme Court SCWC-11-0000353 13-NOV-2012 12:21 PM
NO. SCWC-11-0000353
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
KILAKILA #O HALEAKALA, Petitioner/Appellant-Appellant,
vs.
BOARD OF LAND AND NATURAL RESOURCES, THE DEPARTMENT OF LAND AND NATURAL RESOURCES, AND WILLIAM AILA, IN HIS OFFICIAL CAPACITY AS CHAIRPERSON OF THE BOARD OF LAND AND NATURAL RESOURCES, UNIVERSITY OF HAWAII, AND THOMAS M. APPLE, IN HIS OFFICIAL CAPACITY AS CHANCELLOR OF THE UNIVERSITY OF HAWAI#I AT MANOA, Respondents/Appellees-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. CAAP-11-0000353; CIV. NO. 10-1-2651 )
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI (By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)
Petitioner/Appellant-Appellant's application for writ
of certiorari filed on September 27, 2012, is hereby accepted and will be scheduled for oral argument. The parties will be
notified by the appellate clerk regarding scheduling.
DATED: Honolulu, Hawai#i, November 13, 2012.
David Kimo Frankel, /s/ Mark E. Recktenwald Sharla Ann Manley and Camille Kaimâlie Kalama /s/ Paula A. Nakayama for petitioner /s/ Simeon R. Acoba, Jr. Donna H. Kalama and Julie H. China for respondents Board of /s/ Sabrina S. McKenna Land and Natural Resources, Department of Land and Natural /s/ Richard W. Pollack Resources, and William Aila, in his official capacity as Chairperson of the Board of Land and Natural Resources |
N()'I` F()R PUBLICATI()N IN WEST'S HAWAI'I REP()R'I`S AND PACIFIC REPORTER
NO. 29708 IN THE lNTERMEDIATE COURT OF APPEALS ma OF THE STATE OF HAWAIf[ §§
STATE OF HAWAfI, Plaintiff"Appellee, v. GREGORY SKOCHKO, Defendant~Appellant
APPEAL FRoM THE DIsTR:cT coURT oF THE FIRsT cIRcUIT |
IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-IA-01307-SCT
PRESTAGE FARMS, INC., A NON-RESIDENT CORPORATION; JAMES E. BLISSARD, d/b/a J & J BLISSARD FARM; BOBBY BROOKS, d/b/a BOBBY BROOKS SWINE; RICHARD MOORE, d/b/a RICHARD MOORE SWINE FARM; JERRY MILNER d/b/a JERRY MILNER SWINE; GONE HOGWILD, INC., A MISSISSIPPI CORPORATION; PIG PALACE, INC., A MISSISSIPPI CORPARATION; AND PIGS TO HOGS, INC., A MISSISSIPPI CORPORATION v. JIM NORMAN AND BARBARA NORMAN; LARRY BENNETT AND PEGGY BENNETT; CHESTER BRASSFIELD AND ROBBIE BRASSFIELD; JOHNNY BUFORD; W. C. CARNATHAN AND MABLE CARNATHAN; GWEN CHRESTMAN; RUBY CHRESTMAN; AMANDA COCKRELL; JOE COLBERT AND PATRICIA COLBERT; WARREN COLBERT AND STACY COLBERT; SENORA COUSIN AND OLIVIA COUSIN; CHARLES FUNDERBURK AND CAROLYN FUNDERBURK; KENNETH HARDIN AND GLORIA HARDIN; WILLIAM E. HILL AND PAM HILL; L. C. HOLOMAN; BURRELL HOOPER; TONY HOOPER AND REGINA HOOPER; JAMES IVY; BRYAN K. JERNIGAN; ANN L. LUCIUS; DAVID LUCIUS; BILLY KING AND PEGGY SUE KING; TENA McCARTY; JOHN A. McCLENDON, JR. AND PAMELA McCLENDON; BARRY MARTIN; TERRY L. MARTIN; THOMAS O. MARTIN AND RUTH MARTIN; WAYNE EARL MUNLIN AND DOVIE MUNLIN; LENASTRA MURRY; GEORGE R. NORMAN AND CHARLOTTE A. NORMAN; GEORGE ORR; LAURA G. PARKER; JAMISON PEDEN AND LAURA PEDEN; LUCIUS PREWETT AND MARGARET PREWETT; LOY V. REEVES AND LAVANDA REEVES; BOBBY G. SMITH AND BETTY JEAN SMITH; LUTHER W. TERRY; RUTHIE J. THOMAS; HILDA C. THOMPSON; TERRY TUNNELL AND ANGIE TUNNELL; JOYCE B. VANCE; BURELL WHITT AND HAZEL WHITT; DANNY WHITT; JEWEL F. HARRISON AND EDITH HARRISON; AND JIMMY L. KIRKWOOD AND GERTRUDE L. KIRKWOOD DATE OF JUDGMENT: 6/27/2000 TRIAL JUDGE: HON. DENNIS M. BAKER COURT FROM WHICH APPEALED: MONTGOMERY COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: JOHN ERNEST WADE, JR.
TRUDY D. FISHER
GAYE NELL LOTT CURRIE ATTORNEYS FOR APPELLEES: WILLIAM H. LISTON, JR.
DANNY E. CUPIT NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED AND REMANDED - 4/11/2002 MOTION FOR REHEARING FILED: MANDATE ISSUED: 5/2/2002
EN BANC.
DIAZ, JUSTICE, FOR THE COURT:
¶1. The plaintiffs filed their joint complaint and request for a bill of peace in the Chancery Court of Montgomery County, Mississippi, on January 4, 2000, against Prestage Farms, Inc. (Prestage), and seven of its contract hog growers (the defendant farmers) alleging (1) the creation, establishment, and maintenance of public nuisances consisting of nine large commercial hog confinement facilities containing hundreds of hogs for the purpose of feeding, growing, and raising hogs belonging to Prestage for sale by Prestage, (2) the creation of private nuisances, and (3) the intentional infliction of emotional distress. Plaintiffs seek damages and injunctive relief.
¶2. Each of the defendants filed separate answers to the complaint, all of which are substantially the same and all of which assert identical affirmative defenses incorporating common issues of fact and law.
¶3. On March 2, 2000, defendants filed a joint motion to sever parties under M.R.C.P. 21 raising the issue of joinder of plaintiffs and defendants under M.R.C.P. 20(a). After a hearing, the chancellor entered an order on June 27, 2000, denying the defendants' motion to sever.
¶4. On July |
burden cannot be accepted as justification for practices which hinder litigants in their efforts to seek redress or perceived injustice. The Bar should note that failure to follow the Rules of Appellate Procedure is a violation of M.R.A.P. 2(b) which authorizes the imposition of sanctions, and while none are imposed today, hereafter practitioners who fail to comply with Rule 17 should recognize that they do so at some risk.
¶7. The petition for writ of certiorari is denied. Recognizing that our system of certiorari from the Court of Appeals is in its infancy and that we have not heretofore addressed the present question in an opinion of the Court, we, in the interest of justice in this case, suspend our rules under M.R.A.P. 17(b) and grant to Walter Skinner a period of fourteen days from the date of this decision to file with this Court such further petition for writ of certiorari as may be appropriate under M.R.A.P. 17.
¶8. PETITION FOR WRIT OF CERTIORARI DENIED; PETITIONER GRANTED FOURTEEN DAYS FROM DATE OF THIS DECISION TO SEEK FURTHER RELIEF AS APPROPRIATE UNDER M.R.A.P. 17.
TO DENY: LEE, C.J., PRATHER, P.J., PITTMAN, BANKS, SMITH AND MILLS, JJ., CONCUR. McRAE AND ROBERTS, JJ., CONCUR IN RESULT ONLY.
TO GRANT ADDITIONAL OPPORTUNITY FOR PETITIONER TO FILE A PROPER PETITION UNDER M.R.A.P. 17: PRATHER AND SULLIVAN, P.JJ., PITTMAN AND BANKS, JJ., CONCUR.
1. We observe that the same attorney has filed similar petitions in the past, which, in spite of their deficiencies, the Court considered in the interest of giving the petitioner-client a fair and just review. See Farmer v. State, 94-CT-01164-SCT, order entered May 15, 1997; Hardiman and Holland v. State, 95-CT-472-SCT, now pending before the Court. |
Order Michigan Supreme Court Lansing, Michigan
March 22, 2006 Clifford W. Taylor, Chief Justice
129279 Michael F. Cavanagh Elizabeth A. Weaver SHEILA BEAUCHAMP, GARTH BEAUCHAMP, Marilyn Kelly Maura D. Corrigan ROGER BEYER, KAREN BEYER, BARBARA Robert P. Young, Jr.
BISWABIC, KENNETH BISWABIC, MICHAEL Stephen J. Markman,
Justices
CAHILL, CENTRAL SUPER MARKET, INC., NANCY L. CHERESKIN, JEFFREY CHURCH, LORI COX, JOHN COX, GENE DAVIS, KAREN FREDRICKSON, DOUGLAS FREDRICKSON, LINDA GRANQUIST, JANET GUDE, PAUL GUDE, DEBRA HELGREN, KENNETH HELGREN, SHARI JULIAN, ALLAN JULIAN, GINA KOSKI, LORI MACHUS, JAMES MACHUS, MACHUS RENTALS PARTNERSHIP, ORA MARTIN, WILLIAM MARTIN, MARY MARTINUCCI, EUGENE MARTINUCCI, STEPHANIE MARTINUCCI, MARK MARTINUCCI, DENISE MORELLI, JILL NEKHAY, JOHN NEKHAY, DONALD OKLER, SANDRA ORCHARD, STEVEN ORCHARD, SHIRLEY PEARSON, ALLAN PEARSON, JIM PETERSON, LAVERNE QUICK, LEROY QUICK, MICHAEL QUICK, MARJORIE SCHIAVO, EUGENE SCHIAVO, DONNA SLEETER, SHARI SLEETER, DEBORAH SLEIK, DENNIS SLEIK, LYNN SORCE, JOSEPH SORCE, CAROL SORENSON, STEPHEN SORENSON, NICOLE STANCHINA, SCOTT STANCHINA, CAROL TOBEY, ALBERT TOBEY, VICKIE VANLAANEN, JOSEPH VANLAANEN, JUANITA WEBER, JAMES WEBER, NORA WEINFURTER, and ROBERT WEINFURTER, Plaintiffs-Appellants, v SC: 129279 COA: 256175 Dickinson CC: 02-012608-CE
FORD MOTOR COMPANY and KINGSFORD PRODUCTS COMPANY, Defendants-Appellees.
_________________________________________/
On order of the Court, the application for leave to appeal the May 24, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
KELLY, J., would grant leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. March 22, 2006 _________________________________________ t0315 Clerk |
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.
VI. THE SUBMISSION OF THE "ROBBERY" AGGRAVATING CIRCUMSTANCE VIOLATED STATE LAW AND THE STATE AND FEDERAL CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT.
VII. MISSISSIPPI LAW FAILS TO AUTHORIZE IMPOSITION OF THE DEATH PENALTY FOR CRIMES COMMITTED BY JUVENILES, HENCE THE DEATH SENTENCE IMPOSED ON WILLIAM HOLLY IS INVALID UNDER THE STATE AND FEDERAL CONSTITUTIONS AND MUST BE VACATED THE DEATH PENALTY FOR A JUVENILE WITHOUT ANY PARTICULARIZED PRE-TRIAL FINDINGS BEING MADE AS TO HIS MATURITY AND MORAL RESPONSIBILITY, VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 3, § 28 OF THE MISSISSIPPI CONSTITUTION OF 1890. VIII. THE SENTENCING INSTRUCTIONS AND PROSECUTION'S ARGUMENT VIOLATED THE EIGHTH AMENDMENT AND STATE LAW BY PREVENTING THE JURY FROM CONSIDERING RELEVANT MITIGATING CIRCUMSTANCES.
IX. HOLLY'S STATE AND FEDERAL CONSTITUTIONAL RIGHT NOT TO BE TWICE PUT IN JEOPARDY FOR THE SAME OFFENSE WAS VIOLATED WHEN THE JURY WAS ALLOWED TO CONVICT HIM OF BOTH MURDER DURING THE COMMISSION OF A ROBBERY AND THE LESSER INCLUDED OFFENSE TO ROBBERY OF GRAND LARCENY - DIRECT APPEAL DISMISSAL OF COUNT ON GRAND LARCENY DID NOT CURE ERROR IN THIS DEATH CASE.
X. THE AGGREGATE ERROR IN THIS CASE REQUIRES REVERSAL OF THE CONVICTION AND DEATH SENTENCE.
XI. THE STATE ABUSED PROSECUTORIAL DISCRETION IN THIS CASE AND VIOLATED HOLLY'S SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS BY SCHEDULING THREE CAPITAL TRIALS WITHIN A TWO MONTH PERIOD IN GRENADA COUNTY INVOLVING WHITE AND BLACK DEFENDANTS WITH NO SAFEGUARDS FOR ANY OF THEM WITH RESPECT TO RACIAL OR LOGISTIC IMPLICATIONS IN THE LIMITED JURY POOL OF THE RURAL COUNTY.
XII. A VERBATIM RECORD WAS NOT MAINTAINED IN THIS CAPITAL PROCEEDING VIOLATING HOLLY'S RIGHTS TO A FULL AND FAIR REVIEW BY THE SUPREME COURT OF MISSISSIPPI IN VIOLATION OF HIS RIGHTS UNDER THE MISSISSIPPI AND UNITED STATES CONSTITUTIONS.
XIII. THE TRIAL COURT VIOLATED HOLLY'S RIGHT TO A FAIR TRIAL AND HIS RIGHT TO COUNSEL BY LIMITING THE TIME AVAILABLE FOR HIS COUNSEL TO ARGUE ISSUES TO THE JURY.
XIV. SENTENCING INSTRUCTIONS TO THE JURY ALLOWED IT TO CONSIDER AN AGGRAVATING CIRCUMSTANCE NOT PROVED, A CAPITAL CONVICTION IN THE STATE OF ILLINOIS.
XV. THE PROSECUTION ENGAGED IN SUCH EGREGIOUS MISCONDUCT WITH RESPECT TO PRESENTATION OF EVIDENCE, CROSS-EXAMINATION OF WITNESSES AND ARGUMENT TO THE JURY TO CONSTITUTE A DENIAL OF DUE PROCESS OF LAW UNDER CONSTITUTIONS OF THE STATE OF MISSISSIPPI AND THE UNITED STATES.
XVI. THE MANNER IN WHICH MITIGATING CIRCUMSTANCES WERE SUBMITTED TO THE JURY RESULTED IN A DENIAL OF HOLLY'S CONSTITUTIONAL RIGHTS UNDER THE LAWS OF MISSISSIPPI AND THE UNITED STATES.
XVII. COUNSEL WAS INEFFECTIVE IN THE GUILT PHASE OF THE TRIAL, FAILING TO OBJECT TO PREJUDICIAL QUESTIONS BY THE PROSECUTOR, FAILING TO OBJECT TO INSTRUCTIONS GIVEN BY THE COURT, FAILING TO PURSUE AND PRESERVE PRETRIAL MOTIONS EITHER OVERRULED OR IGNORED BY THE COURT, FAILING TO OBJECT TO PREJUDICIAL ARGUMENT BY THE PROSECUTOR, FAILING TO PRESERVE ERROR FOUND PROCEDURALLY DEFAULTED ON DIRECT APPEAL, AND FAILING TO ADEQUATELY INVESTIGATE THE |
12-1582-cr United States v. Mehmeti
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 9th day of July, two thousand twelve,
Present: ROSEMARY S. POOLER, GERARD E. LYNCH, Circuit Judges.1 _____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-v- 12-1582-cr
GJAVIT THAQI, AKA DOC, ARIF KURTI, AKA THE BEAR, AKA ARTY, AKA NINO, GJEVALIN BERISHA, AKA JEV, CARLOS ALVAREZ, AKA THE KID, SHEKELQIM BAKRAQI, AKA JUICEHEAD, AKA AVINA, ROBERT BONURA, JOSEPH BUX, AGENT OF TRAILER, AKA TRASH, AKA JO-JO, ALEJANDRO CALDERIN, JOHN CEKAJ, MARTINO CEKAJ, AKA MARTY, GIOVANNI DIFUCCIA, BRIAN DUBLYNN, AKA BIG BRIAN, AKA BRIAN DUBBS, AVRY EBRAHIME, AKA ARTY, HECTOR FLORES, ANTHONY GATT, AKA GAKK, ANGELO GERMANO, AKA FAT ANGE, JETON GJIDIJA, AKA TONY G, HAMZA HAMIDEH, AKA JIMMY, PERRY IEROPOLLI, AKA JUNIOR, AL KARAQI, LEE KARAQI, ROBERT KARAQI, HASAN KURTI, AKA OZZIE, IBRAHIM KURTI,
The Honorable Reena Raggi, who had originally been assigned to this panel, recused herself. The remaining two members of the panel decide the matter pursuant to Second Circuit Internal Operating Procedure E(b). AKA BIG BRIAN, NICHOLAS KYRIACOPOULOS, BAJRAM LAJQI, AKA BRIAN LAJQI, AKA VAN DAMME, SELMAN LAJQI, AKA SIMON, ALESSANDRO LATINO, LAURETTA LOKAJ, NIKOLA LUKAJ, AKA NICK, FRANK MAHONEY, AKA FRESH, NICHOLAS MASI, DAVID MCLEAN, FAIK MEHMETI, AKA FRANK NITTI, NEFAIL MEHOVIC, AKA NEF AND LITTLE GUY, VALTER MEMIA, AKA PAVLO CODENOTTI, ALBERTO MERCADO, AKA FAT BOY, FABIAN MIHAJ, AKA PASHKA LUNAJ, MAGDALENA NIKOLLAJ, AKA MAGDALENA KARAQI, MAL REXHA, DARIUS RIVERA, ROBERT RUDAJ, AKA DOKA RUDAJ, FADIL SALAJ, BRENT SAPERGIA, LANCE SCHONER, LESTER ZABORSKI, AGRON ZENELAJ, AKA PADDY, AKA JIMMY,
Defendants,
FATMIR MEHMETI, AKA LUCKY,
Defendant-Appellant. _____________________________________________________
Appearing for Appellant: Alan S. Futerfas (Ellen B. Resnick, on the brief), New York, N.Y.
Appearing for Appellee: Gina M. Parlovecchio, Assistant United States Attorney (of counsel) (Amy Busa, Steven L. Tiscione, Assistant United States Attorneys (of counsel), on the brief) (Loretta E. Lynch, United States Attorney for the Eastern District of New York), Brooklyn, N.Y.
Appeal from an order of the United States District Court for the Eastern District of New York (Irizarry, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
Fatmir Mehmeti has filed an interlocutory appeal from the district court's order detaining him pending trial. |
1182(a)(2)(A)(i)(I). Thus, Gao is removable regardless of whether Section 1182(a)(3)(A)(i)(II) also applies to her.
Gao points out that if we deemed her eligible for asylum and withholding of removal, a finding of inadmissibility under Section 1182(a)(3)(A)(i)(II) would have certain collat- eral effects on her ability to seek additional relief in the future. But having affirmed the BIA's conclusion that she is not eligible for asylum and withholding, we see no reason to express an opinion on the applicability of Section 1182(a)(3)(A)(i)(II). GAO v. HOLDER 15 IV.
For the reasons above, Gao's petition is
DENIED. |
CONDITIONS, AFFIRMED. APPELLANT SHALL PAY RESTITUTION IN THE AMOUNT OF ONE THOUSAND THREE HUNDRED FIFTY-FOUR DOLLARS ($1,354.00). THE SENTENCE IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVELY WITH ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. SENTENCES IN COUNTS II, IV, V AND VI SHALL RUN CONCURRENTLY BUT CONSECUTIVELY WITH SENTENCE IN COUNT I.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, SMITH, MILLS AND WALLER, JJ., CONCUR. |
NOTE: This order is nonprecedential.
mutteb ~tateg QCourt of ~peaIg for tbe jfeberaI QCtrcutt
SHELDON PETERS WOLFCHILD, ERNIE PETERS LONGWALKER, SCOTT ADOLPHSON, MORRIS J. PENDLETON, BARBARA FEEZOR BUTTES, WINIFRED ST. PIERRE FEEZOR, AUTUMN WEAVER, ARIES BLUESTONE WEAVER, ELIJAH BLUESTONE WEAVER, RUBY MINKEL, LAVONNE A. SWENSON, WILLIS SWENSON, AARON SWENSON, BEVERLY M. SCOTT, LILLIAN WILSON, MONIQUE WILSON, SANDRA COLUMBUS GESHICK, CHERYL K. LORUSSO, JENNIFER K. LORUSSO, CASSANDRA SHEVCHUK, JASON SHEVCHUK, JAMES PAUL WILSON, EVA GRACE WILSON, BENITA M. JOHNSON, AND KEVIN LORUSSO, Plaintiffs-Cross Appellants,
AND ANITA D. WHIPPLE ET AL., DESCENDANTS OF LUCY TRUDELL, BONNIE RAE LOWE, ET AL., DESCENDANTS OF JOSEPH GRAHAM, ET AL., LENOR ANN SCHEFFLER BLAESER ET AL., DESCENDANTS OF JOHN MOOSE, AND MARY BETH LAFFERTY, ET AL., Plaintiffs,
AND COURSOLLE DESCENDANTS AND ROCQUE AND TAYLOR DESCENDANTS, WOLFCHILD v. us 2
Plaintiffs,
AND DEBORAH L. SAUL, LAURA VASSAR, ET AL., LYDIA FERRIS ET AL., DANIEL M TRUDELL, ET AL., ROBERT LEE TAYLOR, ET AL., AND DAWN HENRY, Plaintiffs,
AND RAYMOND CERMAK, SR., (ACTING INDIVIDUALLY AND UNDER A POWER OF ATTORNEY FOR STANLEY F. CERMAK, SR.), MICHAEL STEPHENS, ET AL., JESSE CERMAK, ET AL., DENISE HENDERSON, DELORES KLINGBERG, SALLY ELLA ALKIRE, PIERRE ARNOLD, JR., AND GETRUDE GODOY ET AL., Plaintiffs,
AND JOHN DOES 1-30, WINONA C. THOMAS ENYARD, AND KITTO, ET AL., Plaintiffs,
AND FRANCINE GARREAU, ET AL., Plaintiffs,
AND FRANCIS ELAINE FELIX, Plaintiff,
AND KE ZEPHIER, ET AL., 3 WOLFCHILD v. us
Plaintiffs,
AND LOWER SIOUX INDIAN COMMUNITY, Plaintiff,
AND PHILIP W. MORGAN, Plaintiff,
AND REBECCA ELIZABETH FELIX, Plaintiff,
AND VERA A. ROONEY, ET AL., Plaintiffs,
AND DANNY LEE MOZAK, Plaintiff-Cross Appellant,
AND DAWN BURLEY, ET AL., Plaintiffs-Cross Appellants,
AND
HARLEY ZEPHIER, SR., Plaintiff-Cross Appellant,
AND JOHN DOES 1-433, Plaintiffs-Cross Appellants, WOLFCHILD v. us 4
AND
JULIA DUMARCE, ET AL., Plaintiffs-Cross Appellants,
AND
RAYMOND COURNOYER, SR., ET AL., JERRY ROBINETTE, ET AL., SANDRA KIMBELL, ET AL., CHARLENE WANNA, ET AL., AND LESLIE LEE FRENCH, ET AL., Plaintiffs-Cross Appellants,
AND
KRISTINE ABRAHAMSON, Plaintiff-Cross Appellant,
AND
VICTORIA ROBERTSON VADNAIS, Plaintiff-Cross Appellant,
v. UNITED STATES, Defendant-Appellant.
2012-5035, -5036, -5043
Appeals from the United States Court of Federal Claims in consolidated case nos. 03-CV-2684 and 01-CV- 0568, Judge Charles F. Lettow.
ON MOTION 5 WOLFCHILD v. us
Before SCHALL, Circuit Judge.
ORDER Sheldon Peters Wolfchild, et al. r.wolfchild), move for leave, out of time, to file a principal cross-appeal and response brief, with brief attached, that exceeds the word limit by 5000 words. The United States opposes.
Accordingly,
IT Is ORDERED THAT:
The motion is denied. Wolfchild's conforming brief must be filed within 14 days of the date of this order.
FOR THE COURT
NOV 05 2012 /s/ Jan Horbaly Date Jan Horbaly Clerk cc: Wood R. Foster, Jr., Esq. Scott Allen Johnson, Esq. Garrett J. Horn, Esq. COUJ~.,aPEALS u.s.THE FEDERAL CIRCUITFOR Jack E. Pierce, Esq. Elizabeth T. Walker, Esq. NOV 05 201~ Nicole Nachtigal Emerson, Esq. JANHORBAlY Francis Elaine Felix ClBI James Lawrence Blair, Esq. Douglas R. Kettering, Esq. Philip William Morgan Rebecca Elizabeth Felix Bernard Joseph Rooney, Esq. WOLFCHILD v. |
United States Court of Appeals for the Federal Circuit ______________________
ORGANIC SEED GROWERS AND TRADE ASSOCIATION, ORGANIC CROP IMPROVEMENT ASSOCIATION INTERNATIONAL, INC., THE CORNUCOPIA INSTITUTE, DEMETER ASSOCIATION, INC., CENTER FOR FOOD SAFETY, BEYOND PESTICIDES, NAVDANYA INTERNATIONAL, MAINE ORGANIC FARMERS AND GARDENERS ASSOCIATION, NORTHEAST ORGANIC FARMING ASSOCIATION OF NEW YORK, NORTHEAST ORGANIC FARMING ASSOCIATION/MASSACHUSETTS CHAPTER, INC., NORTHEAST ORGANIC FARMING ASSOCIATION OF NEW HAMPSHIRE, NORTHEAST ORGANIC FARMING ASSOCIATION OF RHODE ISLAND, CT NOFA, NORTHEAST ORGANIC FARMING ASSOCIATION OF VERMONT, RURAL VERMONT, OHIO ECOLOGICAL FOOD & FARM ASSOCIATION, FLORIDA CERTIFIED ORGANIC GROWERS AND CONSUMERS INC., SOUTHEAST IOWA ORGANIC ASSOCIATION, MENDOCINO ORGANIC NETWORK, NORTHEAST ORGANIC DAIRY PRODUCERS ALLIANCE, MIDWEST ORGANIC DAIRY PRODUCERS ALLIANCE, WESTERN ORGANIC DAIRY PRODCUCERS ALLIANCE, CANADIAN ORGANIC GROWERS, PEACE RIVER ORGANIC PRODUCERS ASSOCIATION, FAMILY FARMER SEED COOPERATIVE, SUSTAINABLE LIVING SYSTEMS, GLOBAL ORGANIC ALLIANCE, FOOD DEMOCRACY NOW!, FARM-TO-CONSUMER LEGAL DEFENSE FUND, WESTON A. PRICE FOUNDATION, MICHAEL FIELDS 2 ORGANIC SEED GROWERS AND TRADE v. MONSANTO COMPANY
AGRICULTURAL INSTITUTE, FEDCO SEEDS INC., ADAPTIVE SEEDS, LLC, SOW TRUE SEED, SOUTHERN EXPOSURE SEED EXCHANGE, MUMM'S SPROUTING SEEDS, BAKER CREEK HEIRLOOM SEED CO., LLC, COMSTOCK, FERRE & CO., LLC, SEEDKEEPERS, LLC, SISKIYOU SEEDS, COUNTRYSIDE ORGANICS, WILD GARDEN SEED, CUATRO PUERTAS, SEED WE NEED, ALBA RANCH, WILD PLUM FARM, GRATITUDE GARDENS, RICHARD EVERETT FARM, LLC, PHILADELPHIA COMMUNITY FARM, INC, GENESIS FARM, CHISPAS FARMS LLC, MIDHEAVEN FARMS, KOSKAN FARMS, CALIFORNIA CLOVERLEAF FARMS, NORTH OUTBACK FARM, TAYLOR FARMS, INC., RON GARGASZ ORGANIC FARMS, ABUNDANT ACRES, T & D WILLEY FARMS, FULL MOON FARM, INC., COMMON GOOD FARM, LLC, AMERICAN BUFFALO COMPANY, RADIANCE DAIRY, QUINELLA RANCH, NATURE'S WAY FARM LTD., LEVKE AND PETER EGGERS FARM, FREY VINEYARDS, LTD., BRYCE STEPHENS, CHUCK NOBLE, LARHEA PEPPER, PAUL ROMERO, BRIAN WICKERT, BRUCE DRINKMAN, MURRAY BAST, AND DONALD WRIGHT PATTERSON, JR., Plaintiffs-Appellants,
AND
OCIA RESEARCH AND EDUCATION INC., NORTHERN PLAINS SUSTAINABLE AGRICULTURE SOCIETY, MANITOBA ORGANIC ALLIANCE, UNION PAYSANNE, FAMILY FARM DEFENDERS INC., INTERLAKE FORAGE SEEDS LTD., KIRSCHENMANN FAMILY FARMS INC., AND JARDIN DEL ALMA, Plaintiffs, ORGANIC SEED GROWERS AND TRADE v. MONSANTO COMPANY 3 v.
MONSANTO COMPANY AND MONSANTO TECHNOLOGY LLC, Defendants-Appellees.
______________________
2012-1298 ______________________
Appeal from the United States District Court for the Southern District of New York in No. 11-CV-2163, Judge Naomi Reice Buchwald. ______________________
Decided: June 10, 2013 ______________________
DANIEL B. RAVICHER, Public Patent Foundation, Ben- jamin N. Cardozo School of Law, of New York, New York, argued for plaintiffs-appellants. With him on the brief was SABRINA Y. HASSAN.
SETH P. WAXMAN, Wilmer Cutler Pickering Hale and Dorr, LLP, of Washington, DC argued for defendants- appellees. With him on the brief were PAUL R. Q. WOLFSON, TODD C. ZUBLER, GREGORY H. LANTIER, CAROLYN J. CHACHKIN and RACHEL L. WEINER.
JUDITH I. MCGEARY, Langley & McGeary, PLLC, of Cameron, Texas, for amici curiae, Farm and Ranch Free- dom Alliance, et al.
DAVID C. FREDERICK, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., of Washington, DC for amici curiae, Intellectual Property Professors. 4 ORGANIC SEED GROWERS AND TRADE v. MONSANTO COMPANY
THOMAS F. POCHE, Womble Carlyle Sandridge & Rice, L.L.P., of Washington, DC, |
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 12-1446 and 12-1903
KAREN CAMESI; ERIN O'CONNELL; LORI SHAFFER; DINAH BAKER, on behalf of themselves and all other employees similarly situated,
Appellants in Case No. 12-1446
v.
UNIVERSITY OF PITTSBURGH MEDICAL CENTER; UPMC; UPMC HEALTH SYSTEM; UPMC BEDFORD MEMORIAL HOSPITAL; UPMC BRADDOCK; UPMC MCKEESPORT; UPMC NORTHWEST; UPMC PASSAVANT; UPMC PRESBYTERIAN; UPMC PRESBYTERIAN SHADYSIDE; UPMC SHADYSIDE; UPMC SOUTHSIDE; UPMC ST. MARGARET; MAGEE WOMEN'S HOSPITAL OF UPMC; MERCY HOSPITAL OF PITTSBURGH; MONTEFIORE HOSPITAL; MONTEFIORE UNIVERSITY HOSPITAL; WESTERN PSYCHIATRIC INSTITUTE AND CLINIC; CHILDREN'S HOSPITAL OF PITTSBURGH OF THE UPMC HEALTH SYSTEM; UPMC LEE; UPMC HORIZON; UPMC HOLDING COMPANY, INC.; UPMC HEALTH NETWORK, INC.; JEFFREY A. RAMOFF; GREGORY PEASLEE; UPMC 401A RETIREMENT SAVINGS PLAN; UPMC 403B RETIREMENT SAVINGS PLAN; UPMC BASIC RETIREMENT PLAN
ANDREW KUZNYETSOV; CHARLES BOAL; MARTHANN HEILMAN,
Appellants in Case No. 12-1903
v.
WEST PENN ALLEGHENY HEALTH SYSTEM, INC; THE WESTERN PENNSYLVANIA HEALTHCARE SYSTEM, INC.; ALLE-KISKI MEDICAL CENTER; ALLEGHENY GENERAL HOSPITAL; ALLEGHENY GENERAL HOSPITAL-SUBURBAN CAMPUS; CANONSBURG GENERAL HOSPITAL; THE WESTERN PENNSYLVANIA HOSPITAL; CHRISTOPHER T. OLIVIA; JOHN LASKY; RETIREMENT PLAN FOR EMPLOYEES OF WEST PENN ALLEGHENY HEALTH SYSTEM; ALLE-KISKI MEDICAL ASSOCIATES; ALLE-KISKI WOMEN'S HEALTH; ALLEGHENY MEDICAL PRACTICE NETWORK; ALLEGHENY SINGER RESEARCH INSTITUTE; ALLEGHENY SPECIALTY PRACTICE NETWORK; ALLEGHENY VALLEY INTERNAL MEDICINE; ASSOCIATED SURGEONS OF WESTERN PENNSYLVANIA; ASSOCIATED SURGEONS OF WESTERN PENNSYLVANIA P.C.; BARRY SEGAL, MD;
BELLEVUE MEDICAL ASSOCIATES; BELLEVUE PEDIATRIC ASSOCIATES; BURN CARE ASSOCIATES, LTD.; BURRELL INTERNAL MEDICINE; CABOT MEDICAL CENTER; CANONSBURG COMMUNITY HEALTHCARE CENTER; CENTER FOR FAMILY HEALTH CARE; CENTURY MEDICAL ASSOCIATES; CENTURY III MEDICAL ASSOCIATES; CITIZENS SCHOOL OF NURSING; CORKERY, HEISE, DAINESI & TRAPANOTTO; CRAFTON MEDICAL CENTER; CREIGHTON MEDICAL CENTER; DR. FRANCIS J. CAVANAUGH, MD; DR. MEHERNOSH KHAN; EAST END MEDICAL ASSOCIATES; EAST SUBURBAN FAMILY PRACTICE; EAST SUBURBAN OB/GYN; FAMILY NURSE MIDWIVES; FERLAN GROUP; FRIENDSHIP MEDICAL ASSOCIATES; FORBES HOSPICE; FUGE FAMILY PRACTICE; GREEN TREE MEDICAL CENTER ASSOCIATES; HAMPTON MEDICAL CENTER; HEALTH CENTER ASSOCIATES; HUSSAINI MEDICAL ASSOCIATES; IRWIN MEDICAL CENTER; IRWIN PRIMARY CARE ASSCOCIATES; MAMATASTRAGOOR KHAN PRIMARY CARE ASSOCIATES; MCDONALD PRIMARY CARE; MEADOWLANDS PRIMARY CARE; MEDICAL CENTER CLINIC, P.C.; META-HILBERG HEMATOLOGY ONCOLOGY ASSOCIATES, INC.; MONROEVILLE MEDICAL ASSOCIATES; M.H.V. MURTHY, MD; NATRONA HEIGHTS OB/GYN, INC.; NORTH VERSAILLES MEDICAL ASSOCIATES; PAUL REILLY, MD; PEDIATRIC & NEONATAL ASSOCIATES; PEDIATRIC & NEONATAL ASSOCIATES, INC.; PENN HILLS MEDICAL ASSOCIATES; PENNSYLVANIA COMPREHENSIVE CARE ASSOCIATES; PINE HOLLOW MEDICAL ASSOCIATES; PINE RICHLAND
MEDICAL ASSOCIATES; PITTSBURGH CARDIO THORACIC ASSOCIATES; PITTSBURGH CARDIOTHORACIC ACCOCIATES; PLUM MEDICAL ASSOCIATES; PRIMARY CARE NORTHSIDE; PRIMAMRY CARE SOUTH; RIAD SARADAR, MD; ROBERT BARAFF, MD; FRANK E. SESSOMSM.D., INC; STERLING MEDICAL ASSOCIATES; THREE RIVERS IMAGING ASSOCIATES, P.C.; TRI COUNTY CARDIOLOGY; TRI COUNTY CARDIOLOGY, INC.; UNITED PHYSICIANS; VASCULAR CENTER OF WESTERN PENNSYLVANIA, INC.; WATERDAM MEDICAL ASSOCIATES; WEST PENN ALLEGHENY EYE ASSOCIATES, P.C.; WEST PENN ALLEGHENY FOUNDATION, LLC; WEST PENN ALLEGHENY HEALTH SYSTEM, INC. (CORP); WEST PENN ALLEGHENY HEALTH SYSTEM, INC. (NON PROFIT CORP); WEST PENN ALLEGHENY HEALTH SYSTEM PRIMARY CARE NETWORK; WEST PENN ALLEGHENY ONCOLOGY NETWORK; WEST PENN ALLEGHENY PHYSICIANS, LLC; WEST PENN ALLEGHENY SENIOR CARE; WEST PENN BREAST SURGERY PRACTICE; WEST PENN COMPREHENSIVE HEALTH CARE, P.C.; WEST PENN CORPORATE |
FB&I executed this contract, Michael
Johnson joined FB&I. Kermit and Michael had met previously when they were
working for separate companies in the construction business. Kermit wanted
Michael to join FB&I because of his "technical knowledge in reading and
interpreting construction plans." On December 30, 1998, Michael became a forty-
nine percent owner of FB&I, and he and Kermit agreed to split the commissions
equally.
[¶5.] FB&I and Superior both acknowledge that in the first year FB&I
exceeded the annual sales required under the contract. Yet, sometime in February
2000, FB&I began discussions with a different company, Component Manufacturing
Company, about the possibility of FB&I selling Component products in Colorado.
FB&I did not inform Component about its exclusive sales agreement with Superior.
Component and FB&I ultimately executed a sales agreement near the end of March
2000, whereby FB&I agreed to exclusively sell Component's building products in
Colorado. In accord with this agreement, in March 2000, FB&I sent a project to
Component for bidding.
#24000
[¶6.] During this same time, Kermit and Michael's relationship began to
deteriorate. In May 2000, Superior hired Michael. Through Michael, Superior
learned that FB&I had entered into the exclusive sales agreement with Component
in violation of FB&I's contract with Superior. On May 2, 2000, Superior sent notice
to FB&I of its election to "terminate" the exclusive sales agreement with FB&I
effective June 1, 2000.
[¶7.] After ending its agreement with FB&I, Superior continued to do
business with certain customers brought to it by FB&I. In the sales agreement, a
provision dealt with cancellation: "In the event of cancellation of this agreement,
FB&I will be allowed to remain as an independent dealer without exclusive
territory, and will be entitled to retain the customers that they continue to sell and
service with Superior products." Nonetheless, in a letter dated July 18, 2000,
Superior informed Kermit that, effectively, it had no intention of honoring this
provision. Kermit would later explain that he "sold everybody on Superior"
products and when Superior denied FB&I's right to sell Superior's products to
FB&I's established customer base, while Superior at the same time sold directly to
these customers, Superior was able to reap the benefits of FB&I's hard work
without paying compensation. From 2000, when the agreement was cancelled, until
2004, Superior sold $2,327,528 in products to customers originally brought to
Superior by FB&I, without paying FB&I commissions on these sales.
#24000
[¶8.] FB&I brought suit against Superior alleging breach of contract,
tortious interference with business relationships, conversion, and civil conspiracy. 1
FB&I argued that Superior breached the sales agreement when it cancelled it and
refused to allow FB&I to retain its customers as expressly provided for under the
agreement. In response, Superior insisted that it was justified in canceling the
agreement with FB&I because FB&I breached the contract by entering into its sales
agreement with Component. Superior further asserted that it was not obligated to
pay FB&I commissions under the contract because FB&I's actions amounted to a
material breach, thereby excusing Superior from |
NOTE: This disposition is nonprecedential
United States Court of Appeals for the Federal Circuit
ORGANIC SEED GROWERS AND TRADE ASSOCIATION, ORGANIC CROP IMPROVEMENT ASSOCIATION INTERNATIONAL, INC., THE CORNUCOPIA INSTITUTE, DEMETER ASSOCIATION, INC., CENTER FOR FOOD SAFETY, BEYOND PESTICIDES, NAVDANYA INTERNATIONAL, MAINE ORGANIC FARMERS AND GARDENERS ASSOCIATION, NORTHEAST ORGANIC FARMING ASSOCIATION OF_NEW YORK, NORTHEAST ORGANIC FARMING ASSOCIATION/MASSACHUSET'I`S CHAPTER, INC., NORTHEAST ORGANIC FARMING ASSOCIATION OF NEW HAMPSHIRE, NORTHEAST ORGANIC FARMING ASSOCIATION OF RHODE ISLAND, CT NOFA, NORTHEAST ORGANIC FARMING ASSOCIATION OF VERMONT, RURAL VERMONT, OHIO ECOLOGICAL FOOD & FARM ASSOCIATION, FLORIDA CERTIFIED ORGANIC GROWERS AND CONSUMERS INC., SOUTHEAST IOWA ORGANIC ASSOCIATION, MENDOCINO ORGANIC NETWORK, NORTHEAST ORGANIC DAIRY PRODUCERS ALLIANCE, MIDWEST ORGANIC DAIRY PRODUCERS ALLIANCE, WESTERN ORGANIC DAIRY PRODUCERS ALLIANCE, CANADIAN ORGANIC GROWERS, PEACE RIVER ORGANIC PRODUCERS ASSOCIATION,
ORGANIC SEED V. MONSANTO 2
FAMILY FARMER SEED COOPERATIVE, SUSTAINABLE LIVING SYSTEMS, GLOBAL ORGANIC ALLIANCE, FOOD DEMOCRACY NOW!, FARM-TO-CONSUMER LEGAL DEFENSE FUND, WESTON A. PRICE FOUNDATION, MICHAEL FIELDS AGRICULTURAL INSTITUTE, FEDCO SEEDS INC., ADAPTIV'E SEEDS, LLC, SOW TRUE SEED, SOUTHERN EXPOSURE SEED EXCHANGE, MUMM'S SPROUTING SEEDS, BAKER CREEK HEIRLOOM SEED CO., LLC, COMSTOCK, FERRE & CO., LLC, SEEDKEEPERS, LLC, SISKIYOU SEEDS, COUNTRYSIDE ORGANICS, WILD GARDEN SEED, CUATRO PUERTAS, SEED WE NEED, ALBA RANCH, VVILD PLUM FARM, GRATITUDE GARDENS, RICHARD EVERETT " FARM, LLC, PHILADELPHIA COMMUNITY FARM, INC, GENESIS FARM, CHISPAS FARMS LLC, MIDHEAVEN FARMS, KOSKAN FARMS, CALIFORNIA CLOVERLEAF FARMS, NORTH OUTBACK FARM, TAYLOR FARMS, INC., RON GARGASZ ORGANIC FARMS, ABUNDANT ACRES, T & D WILLEY FARMS, FULL MOON FARM, INC., COMMON GOOD FARM, LLC, AMERICAN BUFFALO COMPANY, RADIANCE DAIRY, QUINELLA RANCH, NATURE'S WAY FARM LTD., LEVKE AND PETER EGGERS FARM, FREY VINEYARDS, LTD., BRYCE STEPHENS, CHUCK NOBLE, LARHEA PEPPER, PAUL ROMERO, BRIAN WICKERT, BRUCE DRINKMAN, MURRAY BAST, AND DONALD WRIGHT PATTERSON, JR., Plaintiffs-Appellants,
AND
OCIA RESEARCH AND EDUCATION INC., NORTHERN PLAINS SUSTAINABLE AGRICULTURE SOCIETY, MANITOBA ORGANIC
3 ORGANIC SEED V. MONSANTO
ALLIANCE, UNION PAYSANNE, FAMILY FARM DEFENDERS INC., INTERLAKE FORAGE SEEDS LTD., KIRSCHENMANN FAMILY FARMS INC., AND JARDIN DEL ALMA,
Plaintiffs.
V.
MONSANTO COMPANY AND MONSANTO TECHNOLOGY LLC, Defendants-Appellees.
2012-1298
Appeal from the United States District C0urt for the Southern District of New York in case no. 11-CV-2163, Judge Naomi Reice Buchwald. .
ON MOTION
ORDER
The parties jointly move for an extension of time, un- til July 5, 2012, for Plaintiffs-Appellants to file their initial brief and for an extension of time, until September 13, 2012, for the Defendants-Appellees to file their re-
sponse brief. Upon consideration thereof, IT Is ORDERED THAT: The motion is granted
oReAi\nc SEED v. moNsAN'ro 4 FOR THE C0URT
MAY 2 2 2012 /s/ Jan Horbaly Date J an Horbaly Clerk ccc Seth P. Waxman, Esq. Daniel B. Ravicher, Esq. 323 u.s.couni:i)'i='§.'r?rmwl=on THE FEDEHAI. CIRCUT HAY 22 2012 JAN HUHBALY
CLERK __ |
NO'I` FOR PUBLICATION IN W*EST'S HAWAI'I REPORTS AND PACIFIC REPORTER
NO. 29625
IN THE INTERMEDIATE COURT OF APPEALS §§
¢ §
OF THE STATE OF HAWAI:I go \.@ '*I'¢" F" § "'?'
STATE OF HAWAfI, Plaintiff~Appellee, _ CHRISTOPHER A. PHANPRADITH, Defendant~Appel
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT 06-1-O3lO) |
United States Court of Appeals for the Federal Circuit ______________________
SHELDON PETERS WOLFCHILD, ERNIE PETERS LONGWALKER, SCOTT ADOLPHSON, MORRIS J. PENDLETON, BARBARA FEEZOR BUTTES, WINIFRED ST. PIERRE FEEZOR, AUTUMN WEAVER, ARIES BLUESTONE WEAVER, ELIJAH BLUESTONE WEAVER, RUBY MINKEL, LAVONNE A. SWENSON, WILLIS SWENSON, AARON SWENSON, BEVERLY M. SCOTT, LILLIAN WILSON, MONIQUE WILSON, SANDRA COLUMBUS GESHICK, CHERYL K. LORUSSO, JENNIFER K. LORUSSO, CASSANDRA SHEVCHUK, JASON SHEVCHUK, JAMES PAUL WILSON, EVA GRACE WILSON, BENITA M. JOHNSON, AND KEVIN LORUSSO, Plaintiffs-Cross Appellants,
AND
ANITA D. WHIPPLE et al., Descendants of Lucy Trudell, BONNIE RAE LOWE, et al., Descendants of Joseph Graham, et al., LENOR ANN SCHEFFLER BLAESER et al., Descendants of John Moose, AND MARY BETH LAFFERTY, et al., Plaintiffs,
AND
COURSOLLE DESCENDANTS AND ROCQUE AND TAYLOR DESCENDANTS, Plaintiffs, 2 WOLFCHILD v. US
AND
DEBORAH L. SAUL, LAURA VASSAR, et al., LYDIA FERRIS et al., DANIEL M TRUDELL, et al., ROBERT LEE TAYLOR, et al., AND DAWN HENRY, Plaintiffs,
AND
RAYMOND CERMAK, SR., (acting individually and under a power of attorney for Stanley F. Cermak, Sr.), MICHAEL STEPHENS, et al., JESSE CERMAK, et al., DENISE HENDERSON, DELORES KLINGBERG, SALLY ELLA ALKIRE, PIERRE ARNOLD, JR., AND GETRUDE GODOY et al., Plaintiffs,
AND
JOHN DOES 1-30, WINONA C. THOMAS ENYARD, AND KITTO, et al., Plaintiffs,
AND
FRANCINE GARREAU, et al., Plaintiffs,
AND
FRANCIS ELAINE FELIX, Plaintiff,
AND
KE ZEPHIER, et al., Plaintiffs, WOLFCHILD v. US 3
AND
LOWER SIOUX INDIAN COMMUNITY, Plaintiff,
AND
PHILIP W. MORGAN, Plaintiff,
AND
REBECCA ELIZABETH FELIX, Plaintiff,
AND
VERA A. ROONEY, et al., Plaintiffs,
AND
DANNY LEE MOZAK, Plaintiff-Cross Appellant,
AND
DAWN BURLEY, et al. Plaintiffs-Cross Appellants,
AND
HARLEY ZEPHIER, SR., Plaintiff-Cross Appellant,
AND 4 WOLFCHILD v. US
JOHN DOES 1-433, Plaintiffs-Cross Appellants,
AND
JULIA DUMARCE, et al., Plaintiffs-Cross Appellants,
AND
RAYMOND COURNOYER, SR., et al., JERRY ROBINETTE, et al., SANDRA KIMBELL, et al., CHARLENE WANNA, et al., AND LESLIE LEE FRENCH, et al., Plaintiffs-Cross Appellants,
AND
KRISTINE ABRAHAMSON, Plaintiff-Cross-Appellant,
AND
VICTORIA ROBERTSON VADNAIS, Plaintiff-Cross Appellant,
v.
UNITED STATES, Defendant-Appellant. ______________________
2012-5035, -5036, -5043 ______________________ WOLFCHILD v. US 5 Appeals from the United States Court of Federal Claims in case Nos. 03-CV-2684 and 01-CV-0568, Judge Charles F. Lettow. ______________________
Decided: September 27, 2013 ______________________
ERICK G. KAARDAL, Mohrman & Kaardal, P.A., of Minneapolis, Minnesota, argued for plaintiffs-cross appel- lants, Sheldon Peters Wolfchild, et al.
GARY J. MONTANA, Montana & Associates, of Osseo, Wisconsin, argued for plaintiffs-cross appellants, Julia Dumarce Group, et al. and ROBIN L. ZEPHIER, Abourezek & Zephier, of Rapid City, South Dakota, argued for Plain- tiff-Cross Appellant, Harley Zephier, Sr. With them on the brief was R. DERYL EDWARDS, JR., Attorney at Law, of Joplin, Missouri.
JOHN L. SMELTZER, Attorney, Environment and Natu- ral Resources Division, United States Department of Justice, of Washington, DC, argued for defendant- appellant. With him on the brief were IGNACIA S. MORENO, Assistant Attorney General, AARON AVILA and JODY SCHWARZ, Attorneys.
PHILIP BAKER-SHENK, Holland & Knight, LLP, of Washington, DC, for amici curiae. ______________________ 6 WOLFCHILD v. US Before RADER, Chief Judge, REYNA, |
on that theory in 2009, claimants developed a number of alterna- tive theories rooted in a variety of authorities. We now conclude that none of the new theories breathes life into WOLFCHILD v. US 25 this case because none supports an actionable claim for relief under governing law. We therefore reverse the Claims Court's judgment against the United States on the claim to pre-1980 money and affirm its judgment against claimants on the remainder of the proposed claims. COSTS No costs. AFFIRMED IN PART, REVERSED IN PART United States Court of Appeals for the Federal Circuit ______________________
SHELDON PETERS WOLFCHILD, ERNIE PETERS LONGWALKER, SCOTT ADOLPHSON, MORRIS J. PENDLETON, BARBARA FEEZOR BUTTES, WINIFRED ST. PIERRE FEEZOR, AUTUMN WEAVER, ARIES BLUESTONE WEAVER, ELIJAH BLUESTONE WEAVER, RUBY MINKEL, LAVONNE A. SWENSON, WILLIS SWENSON, AARON SWENSON, BEVERLY M. SCOTT, LILLIAN WILSON, MONIQUE WILSON, SANDRA COLUMBUS GESHICK, CHERYL K. LORUSSO, JENNIFER K. LORUSSO, CASSANDRA SHEVCHUK, JASON SHEVCHUK, JAMES PAUL WILSON, EVA GRACE WILSON, BENITA M. JOHNSON, AND KEVIN LORUSSO, Plaintiffs-Cross Appellants,
AND
ANITA D. WHIPPLE et al., Descendants of Lucy Trudell, BONNIE RAE LOWE, et al., Descendants of Joseph Graham, et al., LENOR ANN SCHEFFLER BLAESER et al., Descendants of John Moose, AND MARY BETH LAFFERTY, et al., Plaintiffs,
AND
COURSOLLE DESCENDANTS AND ROCQUE AND TAYLOR DESCENDANTS, Plaintiffs, 2 WOLFCHILD v. US AND
DEBORAH L. SAUL, LAURA VASSAR, et al., LYDIA FERRIS et al., DANIEL M TRUDELL, et al., ROBERT LEE TAYLOR, et al., AND DAWN HENRY, Plaintiffs,
AND
RAYMOND CERMAK, SR., (acting individually and under a power of attorney for Stanley F. Cermak, Sr.), MICHAEL STEPHENS, et al., JESSE CERMAK, et al., DENISE HENDERSON, DELORES KLINGBERG, SALLY ELLA ALKIRE, PIERRE ARNOLD, JR., AND GETRUDE GODOY et al., Plaintiffs,
AND
JOHN DOES 1-30, WINONA C. THOMAS ENYARD, AND KITTO, et al., Plaintiffs,
AND
FRANCINE GARREAU, et al., Plaintiffs,
AND
FRANCIS ELAINE FELIX, Plaintiff,
AND
KE ZEPHIER, et al., Plaintiffs, WOLFCHILD v. US 3
AND
LOWER SIOUX INDIAN COMMUNITY, Plaintiff,
AND
PHILIP W. MORGAN, Plaintiff,
AND
REBECCA ELIZABETH FELIX, Plaintiff,
AND
VERA A. ROONEY, et al., Plaintiffs,
AND
DANNY LEE MOZAK, Plaintiff-Cross Appellant,
AND
DAWN BURLEY, et al. Plaintiffs-Cross Appellants,
AND
HARLEY ZEPHIER, SR., Plaintiff-Cross Appellant,
AND 4 WOLFCHILD v. US
JOHN DOES 1-433, Plaintiffs-Cross Appellants,
AND
JULIA DUMARCE, et al., Plaintiffs-Cross Appellants,
AND
RAYMOND COURNOYER, SR., et al., JERRY ROBINETTE, et al., SANDRA KIMBELL, et al., CHARLENE WANNA, et al., AND LESLIE LEE FRENCH, et al., Plaintiffs-Cross Appellants,
AND
KRISTINE ABRAHAMSON, Plaintiff-Cross-Appellant,
AND
VICTORIA ROBERTSON VADNAIS, Plaintiff-Cross Appellant,
v.
UNITED STATES, Defendant-Appellant. ______________________
2012-5035, -5036, -5043 ______________________
Appeals from the United States Court of Federal Claims in consolidated case nos. 03-CV-2684 and 01-CV- 0568, Judge Charles F. Lettow. WOLFCHILD v. US 5 ______________________
REYNA, Circuit Judge, concurring-in-part and dissenting- in-part. This case is ingrained in the intertwined, inextricable relationship between the American Indian and the United States. The question we are called to resolve is whether promises made to a small group of American Indians created obligations on the part of the United States that |
KINAN FATTAHI; TAVGAH BARRANGI; TAGHREAD BAHRO; SCALLA ARIZ; MUSYAD SOFI; SAMI AKRAEE; DORAYID SHAMOUN; HALIS SARKY; REVEND TAHA; JABAR KHOSHNAW; ZAID SHAMOUN; MAJID SHAIA; MAZIN M. OAISSO; BASSAM KALESHO; SAAD SHAMMAS; AYAD PATE, AKA Date; JAMAL TAHIR; OMAR TCHALABI; RAAD KERIAKOOS, AKA Kerlakoos; ZIRIVAN MOHAMMAD; REZAN KHOSHNAW; HANA DALOY; OMAR SHERDAH; JALAL TAHIR; MUHAMMAD DOSKY; SARDAR RAMZI; KAMAL TALIR; GOVAND DIZAYI; AHMED HAJI; BAYAR SOFI- HAJI; NADIRA CHOLAKH; RIBUR TAHA; ADMIRAL MIRA; AZAD FATTHULLAH; BARKHO EMMANWIEL; DAHAZ WEISY, AKA Weisu; JALAL TOMA; RANGEBAR AMEDI; ARY AHMED; ABDEULKARIM ZANGANA; SAMIR ALSALEHI; HAMEED DOHHUKY; JAMAL AMIN; SAMAN TALABANI; KUVAN PIROMARI; PISHAWA SHARIF; AYOUB AHMED; RAIED ROMAYHA, AKA Rumia; NAZAR F. BEDUHI; TARIK AL-TAMINI; NEDHAL ROMAYHA; HAYDAR KARIM; TARIK AL-MALKI; ARKAN HAJI; MAHDI AL-MALIKI; TALAL HILANTU; THAIR JUWAIDEH, AKA Suwaideh; MONA PUTRUS; HASSAN AL-GHIZZI; JANAN ABOOD; SARMAD YOUSIF; SAMI PAULS; NOORI HERMEZ; AZAD JAFF; MAJID ZORI; RONY KORKES; HONER TAHIR; SUHAILA IBRAHIM; HARETH SHOONI; HOSHANG OMAR; ALA BANARJI, AKA Ala Marogi; BISHAR SINDY; AIDA MAROUGI; SANA MAROUGI; AFAF MAROUGI; ZALDOUN JAWDAT NASHI; TONY RAMMO; NADA RAMMO; HIVI SALEH; EBA BANARJI; REIMAN PIROMARI; KAWAR ZUBAIR; KAROUZH ZUBAIR; FARIDOON IBRAHIM; ANDY JARJIS; ABDUL YASIN, AKA Yasil; HAMDIA ARIZ; MARK YOUNES; ZYAD KHOSHNAW; SULTANA YOUSIF; ZAHIR KHOSHNAW; KAMIL KHALIL; METIN MOHAMMED; KOVAN ABDUL; HOGER SALEH; SALAH SAFO; YOUSIF I. HANNA; ABDUL ALSAEDI; SHAKHWAN SHIRO; SAM ELSIEDEY; KARIM SHIRO, AKA Karin; ANN KAKOS; SOHAILY PUTRIS; BAHROZ RASHEED, AKA Bahroez; SHORASH SULEIMAN; RIDAR SULEIMAN; REBWAR BUSTANI; AHMED AL- RAMAHY, AKA Ramaby; SHERWAN TAHIR; BIZHAR AMEEN; MOHAMMED HAMAD; ALI HAMAD; NAJI MOSHI; NARIMAN KALABAT; ABDULSALAN MULLA; MOUNIR MAALMI, AKA Mounir Maanmi, AKA Monair; WARHEEL KHALID; ARAZ KHALID; MAJD NAZO; ZIAD JAZRAWI; ROBERT SHAMOO; FIRAS JUWAIDEH, AKA Siras; MAZIN M. ODISHO; RASHAD KATTOULA; MORRIF MALAKHA; CHOLI MUSTAFA; DEAN SABIR; HAJAR ABDULLA; BUSHRA BUTRES, AKA Haj Sirajaddin Nakashbandi; NAZAR AHMED; SARHAND SABIR; HUDA ALAMERI; QUDAMAKER MEWLUD; TAHA ALHABID; BUHROOZ MEWLUD; AZIZD ALJABBAR; ROSTUM MEWLUD; ARAM BERZENGI; SULEIMAN KIRYAKOS; AHMED AHMAD; ABDULRAHMAN MULLA, AKA Abdulrah; ZHEER TAWFICZ; JAMAL PIYAMARI; AHUED SAEDAHMAKE; KARIM HEIDARI, AKA Karin; DILDAR YOUSIF; FARIS E. SHAMON; AWAZ ABBAS; BESTOON DELOYI; FENIK KHOSHNAW; TONY KORKES; AYMAN FEJLEH; SHEVEEN MISSOURI; AHMED KADHIM; SAMIR MONA; ALI AL-TAMIMI,
Plaintiffs - Appellants,
v.
L3 COMMUNICATIONS CORP., a corporation; L3 COMMUNICATIONS HOLDINGS, INC.; TITAN TRANSLATORS, a corporation; TCS CORPORATION, a corporation,
Defendants - Appellees. Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding
Argued and Submitted June 4, 2012 Pasadena, California
Before: TROTT and THOMAS, Circuit Judges, and SEEBORG, District Judge.**
Plaintiffs appeal from the district court's final judgment and orders
dismissing their complaint with prejudice and without leave to amend. We affirm.
Because the parties are familiar with the factual and procedural history of this case,
we need not recount it here.
I
The district court did not err in concluding that the plaintiffs' claims under
the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201 et seq., are
barred by the two-year statute of limitations on collective actions imposed by |