Circuit Watcher

07-2227 Fields v. Shelter Mut. Ins. Co.
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Beam, Author, with Bye and Gruender, Circuit Judges]
Civil Case - employment discrimination. District court did not err in concluding employee failed to produce evidence that employer treated similarly situated employees differently. Other employees were not similarly situated. Grant of summary judgment to employer is affirmed.

06-3842 Seymour v. City of Des Moines
U.S. District Court for the Southern District of Iowa - Des Moines
[PUBLISHED] [Wollman, Author, with Bright and John R. Gibson, Circuit Judges]
Civil Case - civil rights - qualified immunity. Grant of summary judgment on basis of qualified immunity to City and police officers who detained father during child death investigation is affirmed. Although detention was not supported by a reasonable suspicion of criminal activity and thus was unreasonable, officer made a reasonable mistake, as officers thought the detention would be fairly unintrusive and useful under the circumstances. Officers had a reasonable belief that detention was not too lengthy or intrusive. Officers thus are entitled to qualified immunity as to the detention and the length thereof. The City is also not liable, as the procedures adopted by the City do not violate federal law or direct its employees to do so. The procedures are investigative techniques to be used where appropriate and City did not fail to train officers in the proper exercise of their discretion. Defendants are entitled to emergency response immunity under state law for state law claims. John R. Gibson dissents.

06-3626 U.S. v. Vaughn
U.S. District Court for the Eastern District of Missouri - Cape Girardeau
Girardeau [PUBLISHED] [Benton, Author, with Wollman, and John R. Gibson, Circuit Judges]
Criminal Case - sentencing. Applying plain error review, district court erred in applying a presumption of reasonableness, but error was harmless as there is no indication district court would have sentenced him more favorably absent presumption. Although district court stated it was to impose a “reasonable sentence,” it is clear that court followed proper procedures. District court did not abuse its discretion in sentencing defendant.

06-2649, 06-3712 Miah v. Mukasey
Board of Immigration Appeals
[PUBLISHED] [Chief Judge Loken, Author, with Gruender and Benton, Circuit Judges]
Petition for Review - immigration. Petition for review denial of asylum, withholding of removal and relief under the Convention Against Torture and petition for review denial of motion to reopen are denied. Alien did not show extraordinary circumstance to excuse delay in asylum application and thus is ineligible. Alien did not show, as a landowner, he was persecuted on account of a particular social group to warrant withholding of removal or that government instigated or acquiesced in action by party leader’s private criminal activity to warrant CAT relief. BIA did not abuse its discretion in denying motion to reopen to obtain adjustment of status.

07-1840 Cornelia I. Crowell GST Trust v. Possis Medical, Inc.
U.S. District Court for the District of Minnesota - Minneapolis
[PUBLISHED] [Goldberg, Author, Court of International Trade, with Colloton and Shepherd, Circuit Judges]
Civil Case - securities. District court’s dismissal of complaint alleging
securities fraud was properly dismissed, as pleading did not meet the
heightened standards of the Private Securities Litigation Reform Act by
establishing defendant misrepresented a material fact or acted with the
required scienter. Importance attached to study did not support inference
of scienter and stock sales by employees did not establish motive or
opportunity to support the inference. District court did not err in denying
motion to amend the complaint on the basis of futility.

06-3697 Riley v. Lance, Inc.
U.S. District Court for the Western District of Missouri - Kansas City
[PUBLISHED] [Bowman, Author, with Bye and Smith, Circuit Judges]
Civil Case - age discrimination. Grant of summary judgment to employer is affirmed. District court erred in requiring employee to show he met the employer’s legitimate expectations to make out his prima facie case, when employee needed only to show he was “otherwise qualified.” Error, however, was not reversible, as employee did not demonstrate the employer’s reasons for terminating him unsatisfactory performance was a pretext for illegal discrimination. Employee did not show a genuine issue as to whether reasons were contrived or that the production targets were a pretext.

06-3523 Rodriguez v. Keisler
Board of Immigration Appeals
[PUBLISHED] [Gruender, Author, with Murphy and Hansen, Circuit Judges]
Petition for Review - immigration. Alien who marks the “citizen or national of the United States” box on Form I-9 for the purpose of falsely representing himself as a citizen to secure employment with a private employer has falsely represented himself for the benefit or purpose of the Act. Employment, private or otherwise, is an example of purpose or benefit contemplated by the statute. Substantial evidence supported that alien falsely represented himself as a citizen and did not prove clearly and beyond doubt that he is admissible. Thus, alien is ineligible for adjustment of status.

07-2013 McCadney v. Astrue.
U.S. District Court for the Eastern District of Arkansas - Jonesboro
[PUBLISHED] [Beam, Author, with Bye and Gruender, Circuit Judges]
Civil case - Social Security. Case remanded to permit the ALJ to clarify issues regarding the weight accorded certain medical evidence.

06-3217 Ent. Software Ass’n v. Swanson
U.S. District Court for the District of Minnesota - Minneapolis
[PUBLISHED] [Wollman, Author, with Smith and Benton]
Civil case - Minnesota Restricted Video Games Act. The district court’s grant of a permanent injunction against the enforcement of the Minnesota Restricted Video Games Act (Section 325I.06 of the Minnesota Code] which prohibits minors from purchasing or renting video games bearing a “Mature” or “Adult Only” rating is affirmed; under this court’s precedents, violent video games are protected free speech and restrictions on their access are subject to a strict scrutiny analysis; here, the state failed to provide incontrovertible proof of a causal connection between exposure to the violence depicted in the games and subsequent psychological dysfunction, and such a high level of proof is required under the strict scrutiny analysis.

07-6050 Babin v. Wilson (In re Wilson)
U.S. Bankruptcy Court for the Western District of Arkansas
[PUBLISHED] [Federman, Author, with Schermer and McDonald, Bankruptcy Judges]
Bankruptcy Appellate Panel. Chapter 13 above-median debtor sought
to claim ownership deduction for automobiles consistent with the
IRS Local Standards, even though debtor did not incur such an expense.
Bankruptcy court’s allowance of this expense is reversed. Debtors who
do not incur vehicle ownership expenses are not permitted to claim the
IRS Standard deductions for such expenses because such expenses are not
applicable under section 707(b)(2)(A)(ii)(I).

07-1208 U.S. v. Hayes
U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Shepherd, Author, with Beam and Melloy, Circuit Judges]
Criminal case - Criminal law and Sentencing. Evidence was sufficient
to show defendant concealed a wanted person after she learned of his
federal arrest warrant; instruction properly informed jury of the
elements of the offense; sentence was not unreasonable.

07-1203 Hanan v. Mukasey
Board of Immigration Appeals
[PUBLISHED] [Gruender, Author, with Murphy and Hansen, Circuit Judges]
Petition for review - Immigration. Petition for review regarding Hanan’s
constitutional argument that the BIA did not properly consider the
submitted country reports and his affidavit and his legal argument that
the BIA used the wrong standard for acquiescence is denied; the remainder
of the petition is dismissed for lack of subject matter jurisdiction.

06-3522 Liadov v. Mukasey
Board of Immigration Appeals
[PUBLISHED] [Loken, Author, with Arnold and Colloton, Circuit Judges]
Petition for Review - Immigration. Circuit court may review the BIA’s
ruling that it lacked jurisdiction to consider an untimely appeal; when
Congress passed a statutory time limit for appeals, it did not intend
that the time limit be mandatory and not subject to exceptions; as a
result, the BIA’s jurisdictional ruling should be reviewed under an
abuse of discretion standard; BIA’s refusal to assert jurisdiction
through the certification process set out in 8 C.F.R. Sec. 1003.1(c)
was an unreviewable action committed to the agency’s discretion; even
if the BIA’s order refusing to self-certify was subject to judicial
review, the BIA did not abuse its discretion in refusing to certify
the case to itself because a courier service failed to meet its
contractual commitment to deliver the appeal the next day; BIA’s
filing deadline and self-certification procedure did not deprive
petitioners of due process. Judge Colloton, concurring in part.

07-6065 Blumeyer v. Sosne (In re Blumeyer)
U.S. Bankruptcy Court for the Eastern District of Missouri
[PUBLISHED] [Kressel, Author, with Federman and Mahoney, Circuit Judges]
Bankruptcy Appellate Panel. District court did not err in denying
appellant’s motion to reconsider orders in her husband’s bankruptcy
proceeding as her appeal is untimely as to these orders from 2002, 2003
and 2006; further, she was not the aggrieved party and had no standing to
appeal the orders; the bankruptcy court did not abuse its discretion in
denying appellant’s eleventh hour motion to dismiss her bankruptcy
case, as dismissal would not be in the best interests of the creditors who,
after nearly ten years, are about to receive payments on their debts.

07-2207 U.S. v. Pate
U.S. District Court for the Western District of Arkansas - Hot Springs
[PUBLISHED] [Gritzner, Author, with Wollman and Smith, Circuit Judges]
Criminal case - Sentencing. Defendant failed to raise the affirmative
defense that one of the firearms in the case was an antique, and the
burden did not shift to the government to disprove that fact; as a result,
the district court did not err in including the weapon in calculating the
total number of firearms defendant possessed for purposes of Guidelines
Sec. 2K2.1(b)(1); adequate evidence support the trial court’s conclusion
that all of the weapons were loaded and could have been used; no error in
imposing a four-level enhancement under Guidelines Sec. 2K2.1(b)(6)
for possession of the weapons in connection with another felony - the
manufacture of methamphetamine.

07-2026, 07-2028 U.S. v. Heppner
U.S. District Court for the District of Minnesota - St. Paul
[PUBLISHED] [Murphy, Author, with Loken, Chief Judge and Jarvey, District Judge]
Criminal case - Criminal law. In prosecution for mail fraud, the
instruction on materiality was a proper statement of the law and the
evidence was sufficient to convict defendants; Brady claims rejected; no
error in admitting into evidence a portion of defendant Heppner’s
testimony before the Commodity Futures Trading Commission.

07-1791 Ford v. Astrue
U.S. District Court for the Eastern District of Arkansas - Jonesboro
[PUBLISHED] [Arnold, Author, with Bye and Melloy, Circuit Judges]
Civil case - Social Security. After careful consideration of the record,
the evidence in the case did not weigh so heavily against claimant’s
credibility that the ALJ would necessarily have disbelieved her absent the
erroneous inferences that he drew from the record; case remanded to
allow the ALJ to reconsider the application based on a proper
consideration of the evidence.

07-1719 U.S. v. Walker
District of Nebraska - Lincoln
[PUBLISHED][Loken, Author, with Wollman and Shepherd, Circuit Judges]
Criminal case - criminal law. District court did not err in concluding
that initial Miranda violation did not require suppression of statements
made the next day after defendant was properly advised of and waived his
Miranda rights.

07-1158 U.S. v. Refert
U.S. District Court for the District of South Dakota
[PUBLISHED] [Smith, Author, with Riley and Bowman, Circuit Judges]
Criminal case - Criminal law and sentencing. Instructions properly
advised the jury of the essential elements of the offenses of health care
fraud and making a false claim against the United States; evidence was
sufficient to support conviction for making false claims; district court did
not err in including emergency room costs in defendant’s restitution
order; district court plainly erred in sentencing defendant to consecutive
terms of supervised release, and that portion of the sentence is reversed
and remanded for resentencing.

07-1112 Steele v. U.S.
U.S. District Court for the Southern District of Iowa - Des Moines
[PUBLISHED] [Murphy, Author, with Loken, Chief Judge, and Hansen, Circuit Judge]
Prisoner case - habeas. Due process does not guarantee a constitutional
right to counsel for a litigant seeking to file a certiorari petition to the
Supreme Court of the United States, and counsel’s failure to file a
petition following Steele’s direct appeal did not constitute ineffective
assistance of counsel; alleged violations of the court’s Amended Criminal
Justice Act Plan and Rule 44(a) did not deprive Steele of due process of
law and did not give rise to a claim for ineffective assistance of counsel;
even if a right to have counsel file a certiorari petition existed, Steele
failed to show that she suffered prejudice from her counsel’s failure to
file a petition.

07-6027, 07-6029 Granite Reinsurance Co. v. Acceptance Ins. Co.
U.S. Bankruptcy Court for the District of Nebraska
[PUBLISHED] [Kressel, Chief Judge, with Schermer and Venters, Bankruptcy Judges]
Bankruptcy Appellate Panel. Reinsurance contract was supported by consideration, and the bankruptcy court did not err in determining that the contract was enforceable against debtor and that Granite was entitled to retain a $6 million premium payment; contract unambiguously stated that the premium was $15 million payable over five years, with no exceptions for early termination or loss of business, and the bankruptcy court erred in determining that the insurer could not recover the premium for the final three years of the contract.

07-1535 U.S. v. Castellanos
U.S. District Court for the Western District of Missouri - Kansas City
[PUBLISHED] [Riley, Author, with Bowman and Smith, Circuit Judges]
Criminal case - criminal law. District court erred in holding defendant, whose mental capacity was diminished by intoxication, impliedly consented to search of his bedroom, and the court erred in determining that items seized from the bedroom were admissible; case is remanded for further proceedings.

07-2166 U.S. v. Mathison
U.S. District Court for the Northern District of Iowa - Sioux City
[PUBLISHED] [John R. Gibson, Author, with Wollman and Benton, Circuit Judges]
Criminal case - Criminal law. Evidence was sufficient to support
convictions for continuing criminal enterprise, conspiracy and filing false
tax returns; district court meticulously followed this court’s prescribed
procedures for determining whether to grant a mistrial when the jury is
exposed to outside influences (here, news reports defendant has
absconded during trial), and the court did not abuse its discretion in
determining the jurors could proceed in accordance with the instructions
in the case.

07-1476 U.S. v. Burnette
U.S. District Court for the District of South Dakota - Pierre
[PUBLISHED] [Benton, Author, with Colloton and Beam, Circuit Judges]
Criminal case - Criminal law and Sentencing. Applying the plain error
of standard of review, the district court did not err by not recusing sua
sponte; defendant waived any objections to the district court’s drug
quantity calculations; argument that the court erred in refusing to grant an
acceptance-of-responsibility reduction was waived; district court erred in
applying a presumption of reasonableness to the advisory guidelines
sentence, but the error was harmless because defendant failed to show
that, but for the error, the court would have imposed a lesser sentence;
sentence was reasonable.

06-2453 U.S. v. Pepper
U.S. District Court for the Northern District of Iowa - Sioux City
[PUBLISHED] [Riley, Author, with Bowman and Arnold, Circuit Judges]
Criminal case - Sentencing. The district court committed procedural
error in failing adequately to explain with sufficient justifications the
court’s conclusion that a 59% variance after the Section 5K1.1 downward
variance was warranted in this case; the court also erred in relying
predominantly on improper factors, such as post-sentencing
rehabilitation, in making its decision; as the district court has expressed
a reluctance to resentence defendant if the case is remanded, the case is
remanded with directions to assign it to a different district judge.

05-4418 Tamenut v. Mukasey
Board of Immigration Appeals
[PUBLISHED] [Per Curiam. For the Court En Banc]
Petition for review - immigration. The decision whether to reopen
removal proceedings sua sponte is committed to the BIA’s discretion by
law, 5 U.S.C. Sec. 701(a)(2), and the court lacks jurisdiction to review
the BIA’s discretionary decision. Petition for review dismissed. Judge
Beam, dissenting.

05-3316 U.S. v. Hudspeth
U.S. District Court for the Western District of Missouri - Springfield
[PUBLISHED] [Riley, Author. For the Court En Banc]
Criminal case - Criminal law. For the panel opinion in the case, see
United Sates v. Hudspeth, 459 F.3d 922 (8th Cir. 2006). Police could
seize family computer when defendant’s wife consented to the seizure,
even though her husband had, unknown to her, refused to consent to the
search and seizure when he was arrested at a different location. Judge
Melloy, dissenting.

07-2160 United States v. Gary Close
U.S. Court of Appeals Case No: 07-2160
U.S. District Court for the Southern District of Iowa - Des Moines
[PUBLISHED] [John R. Gibson, Author, with Bye and Melloy, Circuit
Judges]
Criminal case - Criminal law. Evidence was sufficient to support
conviction for possession of a firearm in furtherance of drug trafficking.

07-2107 United States v. Carlos Hernandez
U.S. District Court for the District of Minnesota - St. Paul
[PUBLISHED] [Smith, Author, with Wollman, Circuit Judge, and
Gritzner, District Judge]
Criminal case - Sentencing. Sentence was not unreasonable; court
properly calculated defendant’s Guidelines range, acknowledged the
range was advisory and considered the Guidelines and factors set out in
18 U.S.C. Sec. 3553(a); court did not apply an impermissible
presumption of reasonableness to the Guidelines range.

07-2061 Medical Liability Mutual Insur v. Alan Curtis LLC
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Murphy, Author, with Loken, Chief Judge, and Jarvey,
District Judge]
Civil case - Insurance. If presented with the question, the Arkansas
Supreme Court would determine that the three-year limitations period set
out in Ark. Code 16-56-105 would apply to actions under the Arkansas
Long Term Care Residents Rights Act; the district court did not err in
applying this limitations period or in determining that the Insurer had no
duty to indemnify defendants; district court did not err in determining that
the only claim in the underlying lawsuit covered under the insured’s
policy is the Redden estate’s breach of contract claims against
Evergreene, that the insurer had a duty to defend and indemnify
Evergreene on that claim and therefore had a duty to defend it on all of
the estate’s claims against it. Judge Jarvey, dissenting.

07-1787 Rosemary Hamilton v. Michael J. Astrue
U.S. District Court for the Eastern District of Arkansas - Jonesboro
[PUBLISHED] [Jarvey, Author, with Loken, Chief Judge, and Murphy,
Circuit Judge]
Civil case - Social Security. Decision to deny benefits was supported by
substantial evidence; the ALJ did not err in discounting plaintiff’s
medical evidence or in finding that her testimony was inconsistent with
the objective medical evidence.

07-1366 Roger Nolan v. Dana Thompson
U.S. Court of Appeals Case No: 07-1366
U.S. District Court for the Western District of Missouri - Jefferson City
[PUBLISHED] [Wollman, Author, with Benton, Circuit Judge, and Doty,
District Judge
Prisoner case - Prisoner civil rights. Missouri Parole Board’s
scheduling of Nolan’s reconsideration hearings at three-year intervals
pursuant to Missouri Stat. Sec. 217.690(6) does not create a sufficient
risk of increasing the length of his incarceration to state a violation of
the ex post facto clause; due process and equal protection arguments
rejected.