Tuesday, April 28, 2009

Civil law decisions with a healthy mix and classy class actions

Complete Angler, LLC v. City of Clearwater, Fla. ,(M.D.Fla.)
Real Property - Marine themed mural on outside wall of bait shop was protected non-commercial speech.
A marine themed mural on the outside wall of a bait shop and a banner placed over the mural reciting the First Amendment were protected non-commercial speech. Therefore, a city's ordinance defining paintings displayed in conjunction with a commercial enterprise as commercial speech rather than art work was an impermissible restriction on non-commercial speech as applied to the mural and banner. Although the mural could occasionally inspire the purchase of bait, it reflected a local artist's impression of the natural habitat and waterways surrounding the bait shop. It also alerted viewers to the threats posed to certain fish species it depicted.

Josendis v. Wall to Wall Residence Repairs, Inc. ,(S.D.Fla.)
Labor and Employment - Laborer employed by Florida company did not fall under FLSA's wage and hour protections under theory of enterprise coverage.
A laborer employed by a family-owned Florida residential remodeling company did not fall under the wage and hour protections of the Fair Labor Standards Act (FLSA) under a theory of enterprise coverage. The company asserted in its statement of undisputed facts on its motion for summary judgment that it never grossed $500,000 annually during the limitations period, and the employee's opposition statement of facts did not properly controvert that assertion. The laborer also failed to establish that his employer was "engaged in the operation of a hospital or an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises of such institution" through the assertion that a "Jewish Home and Hospital" itself would be covered by that language and that the maintenance and repair work he performed there during the relevant period was "closely or intimately related" to enterprise engaged in interstate commerce.

AXA Equitable Life Ins. Co. v. Infinity Financial Group, LLC ,(S.D.Fla.)
Insurance - Nonresident trustees and trusts holding life policies were subject to personal jurisdiction based on civil conspiracy claim.
Trustees, as residents of Delaware, holding life insurance policies in trusts organized in Delaware, purposely directed their activities at Florida residents, in an alleged civil conspiracy to fraudulently recruit elderly Florida applicants for policies that were paid for and held by outside investors in trusts to disguise true ownership of the policies. Thus, the Delaware trustees and trusts had sufficient contacts with Florida to have fair warning that they could be subject to the insurer's suit in Florida, as required to satisfy due process requirements for exercise of jurisdiction consistent with fair play and substantial justice.

Dissolution of marriage -- Equitable distribution -- Disproportionate distribution -- Factors relied upon by trial court did not weigh in favor of unequal distribution of property in favor of wife -- Desirability of retaining marital home as residence for parties' dependent children did not justify permanent transfer of marital home to former wife -- To extent trial court relied upon this factor to award marital residence to former wife, it should have granted her an exclusive interest only until parties' youngest child reached majority -- Fact that parties had used funds principally originating in former wife's trust account to purchase property in foreign state and marital home was found in prior appeal to be irrelevant to distribution of marital property in this case -- Unequal distribution cannot be based on spouse's disproportionate financial contributions to marriage unless there is showing of “extraordinary services over and above the normal marital duties,” and evidence does not demonstrate the former wife provided such extraordinary services on former husband's behalf -- Remand with instructions that marital assets be equally divided between the parties -- Alimony -- Error to impute income to husband from “sedentary employment” where trial court made finding following first trial that former husband's physical disability left him “unemployable,” appellate court concurred with this finding on appeal, no evidence was offered regarding amount or source of imputed income, and trial court made no findings concerning either factor -- Remand for reevaluation of alimony award without any consideration of imputed income
Reported at 34 Fla. L. Weekly D845b

Contracts -- Civil procedure -- Vacation of judgment -- Order vacating judgment for defendant in action for breach of contract to build and sell residence to plaintiff, and setting case for new trial, on ground that court committed judicial error by depriving plaintiff of opportunity to seek return of earnest money deposit -- Any error in trial court's failure to order return of earnest money deposit is not type of error cognizable under rule 1.540 -- Judicial errors must be corrected within ten days pursuant to rule 1.530 -- Even if trial court acted on its own initiative pursuant to rule 1.530(d), court was without jurisdiction to order new trial on its own motion because court did not initiate action within time limit set out in rule -- Order vacating final judgment reversed
Reported at 34 Fla. L. Weekly D795a

Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Administrative law judge erred in awarding attorney's fees under section 57.105, Florida Statutes, to party who did not comply with mandatory notice provisions of statute -- Counsel's letter to opposing counsel threatening to seek attorney's fees under section 57.105 was not the same as the statutorily required motion, which is required to be served on opposing counsel and later filed with court
Reported at 34 Fla. L. Weekly D826a

Contracts -- Stock purchase agreement -- Arbitration -- Action against guarantors of promissory notes given in connection with stock purchase agreement was not subject to arbitration provision in stock purchase agreement -- Arbitration provision in agreement applies only to indemnification claims, and suit to enforce unconditional guarantee was not a claim for indemnity -- Arbitration clause applies to claims for indemnification caused by purchaser's failure to fulfill an obligation of an agreement related to stock purchase agreement, but plaintiffs are not seeking indemnification from purchaser, but instead are seeking payment on unconditional guarantees executed by defendants
Reported at 34 Fla. L. Weekly D814c

Prohibition -- Judges -- Disqualification -- Real property -- Action challenging amendments to development's declaration of covenants and restrictions which imposed mandatory country club membership on all new owners taking title to certain property in defendant's subdivisions -- Where defendant discovered that judge was involved in similar dispute with his own homeowners association and had expressed critical opinions on the matter, a circumstance which aligned judge with plaintiff's position on the primary issue to be determined in suit, defendant had well-founded fear of bias, and disqualification was required
Reported at 34 Fla. L. Weekly D807b

Hoving v. Lawyers Title Ins. Co.,(E.D.Mich.)
Class Actions - Named plaintiff was not appropriate class representative in action against title insurer to recover overcharges on mortgage rates.
A federal district court in Michigan has denied certification of a refinancing homeowner's putative class action against a title insurer which allegedly overcharged on premiums on policies issued to mortgage lenders. The named plaintiff had not established that he could fairly and adequately protect the interests of the class. His effort at setting up a do-it-yourself trust established some doubt about whether he had the authority to grant the refinancing mortgage on the property and close the loan at the time. Furthermore, his testimony that in attempting to set up the trust he filled out the papers himself, was unfamiliar with the process, sought no legal advice despite the fact his sister was an attorney who served in the Judge Advocate General Corps, conveyed his property to complete strangers with whom he had never spoken and whom he had never met, paid a fee but kept no copies of documents or a record of payment, and was defrauded cast grave doubt over his ability to perform the functions of a lead plaintiff in major class action litigation.

Rodriguez v. West Publishing Corp.,(C.A.9 (Cal.))
Class Actions - Incentive agreements signed by some class representatives did not require rejection of antitrust settlement.
Although incentive agreements between the named plaintiffs and class counsel created conflicts among the named plaintiffs, their counsel, and the rest of the class in an antitrust action against two bar review course providers, a district court was not required to reject a $49 million settlement of the action on that account, since there were two other class representatives who had no incentive agreements and whose separate counsel were not conflicted. The agreements required class counsel to apply to a court for an incentive award for the named plaintiffs, and tied the named plaintiffs' compensation to a sliding scale based on the amount recovered.

State, Dept. of Transp. v. Douglas Asphalt Co.,(Ga.App.)
Appeals - Dismissal of defendant's cross-appeal was required following dismissal of plaintiff's direct appeal.
The Court of Appeals of Georgia has held that a defendant's cross-appeal from the trial court's partial grant of a plaintiff's motions in limine to exclude certain evidence and partial denial of the defendant's initial motion for summary judgment had to be dismissed, upon the dismissal of the plaintiff's direct appeal from the court's partial grant of defendant's second motion for summary judgment. This was the case because the grant of the plaintiff's motions in limine and the trial court's partial denial of the defendant's motion for summary judgment were not final appealable judgments, but were subject to the certification requirement and application procedures for interlocutory appeal. Since the plaintiff's appeal had been dismissed, and the defendant filed no application for interlocutory review of the grant of the plaintiff's motions in limine or the court's partial denial of the defendant's motion for summary judgment, the Court of Appeals had no independent jurisdiction over the cross-appeal. In so holding, the Court overruled a prior decision.

U.S. v. Nicholas,(C.D.Cal.)
Privileges - Attorney-client privilege applied to client's interview with his attorneys.
The attorney-client privilege applied to a client's interview with his attorneys regarding his employer's stock option granting practices. The substance of interview was disclosed by his attorneys to the employer's outside auditors, to the Securities and Exchange Commission (SEC), to the United States Attorney's Office, and was summarized in a FBI form memoranda. The client reasonably believed an attorney-client relationship existed with his attorneys in both the direct and derivative actions brought against him and his employer. He also reasonably believed that he was communicating with his attorneys in the context of the attorney-client relationship for the purpose of obtaining legal advice. Finally, he reasonably believed that any information he provided to his attorneys would remain confidential.

Payne v. Wyeth Pharmaceuticals, Inc.,(E.D.Va.)
Estoppel - Discharged debtor was judicially estopped from seeking damages exceeding $1 million in personal injury action.
A discharged Chapter 7 debtor, who sought $25 million in damages in personal injury action, was judicially estopped from seeking damages exceeding $1 million from defendant where the debtor declared the value of his claim as $1 million in the bankruptcy court and never amended his schedules to reflect his belief that his claim was worth more. The debtor advanced a position in which was inconsistent with the position he took in bankruptcy court, the value of debtor's claim was a question of fact, bankruptcy court relied upon debtor's representations made on the bankruptcy schedules, including his representation of his $1 million valuation, before agreeing to discharge his debt, and the debtor had a motive for concealment when valuing his claim and/or failing to amend after he had filed the lawsuit since the secured creditors would have been able to collect on any award or settlement recovered by the debtor.

Fort Brown Villas III Condominium Ass'n, Inc. v. Gillenwater,(Tex.)
Judgment - Striking of affidavit of plaintiff's expert witness submitted in response to defendants' summary judgment motion was justified.
The Supreme Court of Texas has held that the rule providing for the exclusion of evidence due to an untimely response to a discovery request applies in a no-evidence summary judgment proceeding. In so holding, the Court abrogated Court of Appeals' decisions holding to the contrary. In the case at bar, the Court concluded that the trial court's striking of an affidavit of the plaintiff's expert witness submitted in response to the defendants' no-evidence summary judgment motion was justified, because the plaintiff failed to timely disclose his expert pursuant to the deadline provided in the agreed scheduling order and the subsequent extension agreements. Also, the plaintiff failed to satisfy his burden of establishing good cause or lack of unfair surprise or prejudice against the defendants.

This decision may not yet be released for publication.

Budisukma Permai SDN BHD v. N.M.K. Products & Agencies Lanka (Private) Ltd.,(S.D.N.Y.)
Attachment and Garnishment - Plaintiff need only make prima facie showing of alter ego liability to avoid vacatur of maritime attachment.
A plaintiff need only make a prima facie showing of alter ego liability to avoid the vacatur of a maritime attachment, a New York district court has ruled, noting a split of authority on the issue within its district and following the majority view. A vessel owner satisfied this prima facie burden in pleading that related entities were the alter egos of a charterer in support of a maritime attachment against the related entities. The owner alleged that a website identified the charterer and the related entities as a "group of companies," and that the related entities sold the same products. The owner also alleged that the charterer and the related entities had common office addresses and telephone numbers and a common, three-person core of directors and shareholders, that the related entities were closely owned and directed by what appeared to be the same group of people, and that the related entities were the successors in interest of the charterer.

Wickline v. Dutch Run-Mays Draft, LLC,(S.D.W.Va.)
Removal - Court could not consider evidence of $100,000 settlement offer made after removal in determining motion to remand.
The District Court could not consider evidence of a $100,000 offer of settlement made by the defendant after the case was removed on the basis of diversity jurisdiction, or expert testimony that the amount-in-controversy for diversity jurisdiction was satisfied, in determining the plaintiff's motion to remand, based on a failure to establish the jurisdictional amount-in- controversy for diversity jurisdiction. The Court noted that neither the settlement offer nor the expert testimony was on the record at the time the notice of removal was filed.

Shumaker, Loop & Kendrick, LLP v. Zaremba,(N.D.Ohio)
Privileges - Burden-shifting approach was to be used for purposes of determining validity of written waiver of attorney-client privilege.
As a matter of first impression, the district court held that a burden- shifting approach should be used for purposes of determining the validity of a written waiver of the attorney client privilege. The proponent of the privilege had the burden of demonstrating, by a preponderance of the evidence, that the elements of the privilege were established. The opponent of the privilege was required to present sufficient evidence upon which a reasonable person could find that the privilege had been waived, and, if the opponent met its burden, the proponent of the privilege was required to disprove each demonstrated claim of waiver by a preponderance of the evidence.

Vargas v. Shepherd,(Ind.App.)
Privileges - Former patient waived the physician-patient privilege as to surgeon's treatment of former patient's prior back injury.
A former patient waived the physician-patient privilege as to a surgeon's treatment of the former patient's prior back injury. The former patient reinjured his back while working at an apartment complex and filed a lawsuit against the apartment complex to recover damages. By filing the lawsuit, the former patient placed at issue the condition of his back and any injury or treatment relating to it.

Ford Motor Co. v. Castillo,(Tex.)
Discovery - Manufacturer was entitled to discovery in breach of settlement action to determine juror misconduct in underlying tort action.
A plaintiff motorist in a products liability action, by seeking enforcement of a settlement agreement, necessarily asserted a separate claim for breach of contract against the defendant automobile manufacturer. Therefore, the manufacturer was entitled to conduct discovery to determine whether a juror's pre-settlement note to the trial court concerning the maximum allowable award in the products liability action, which note prompted the settlement, was attributable to any outside jury influence. The juror's note, which was submitted following a recess, raised a legitimate question about the integrity of the trial process.

This decision may not yet be released for publication.

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Monday, April 27, 2009

Some interesting health law decisions that blend the statutory with the common law

Nursing homes -- Settlement -- Equitable subrogation -- Hospitals -- Action by nursing home against hospital seeking to recover amounts paid in settlement of former patient's claims, which were based on sacral wound which patient had when she was discharged from nursing home and for which patient subsequently received hospital treatment on three different occasions, alleging that hospital's negligent treatment of patient was primary cause of patient's damages -- Limitation of actions -- Limitations period for equitable subrogation action did not begin to run until nursing home made payment to patient -- Nursing home's pleadings adequately described reason it made payment to patient -- Sovereign immunity -- Notice of claim -- Nursing home's failure to present claim in writing to Department of Financial Services within three years after claim arose not basis for granting summary judgment in favor of hospital and dismissing case with prejudice where at time of dismissal the applicable limitations periods had not yet expired -- Remand for entry of final judgment dismissing cause without prejudice for failure to comply with section 768.28(6)(a)
Reported at 34 Fla. L. Weekly D723a

Nursing homes -- Arbitration -- Error to compel arbitration of claims brought on behalf of nursing home resident who died from neck injury she received at the facility where plaintiff argued that arbitration provision in nursing home admission agreement was unconscionable because decedent had no choice but to sign agreement in order to obtain necessary medical care and treatment and because decedent did not understand agreement or the rights she was waiving by signing the agreement -- Where plaintiff's written response in opposition to motion to compel and arguments at non-evidentiary hearing on motion raised disputed issues of fact as to the “making of” the arbitration agreement, trial court was required by statute to conduct evidentiary hearing to resolve disputed issues before sending case to arbitration
Reported at 34 Fla. L. Weekly D719a

Nursing homes -- Complaint seeking both survival and wrongful death damages -- Election of remedy -- Trial court order dismissing complaint and granting plaintiff twenty days to file amended complaint in which she elects remedy of either survival damages or wrongful death damages -- Certiorari relief is not available because plaintiff cannot demonstrate that she will be irreparably harmed by electing her remedy at pleading stage -- Any error in trial court's ruling can be corrected in postjudgment appeal
Reported at 34 Fla. L. Weekly D724a

Contrast Dye (False Advertising): GE HEALTHCARE ORDERED TO PAY $11.4 MILLION OVER FALSE AD CLAIM, Bracco Diagnostics v. Amersham Health, 25 No. 3 Andrews Pharmaceutical Litig. Rep. 1, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A New Jersey federal judge has ordered GE Healthcare to pay $11.4 million in damages to rival Bracco Diagnostics for knocking the company's X-ray contrast dye in an ad campaign. During the 2007 trial in the U.S. District Court for the District of New Jersey, Bracco argued that GE and predecessors Amersham Health Inc., Amersham Health AS and Amersham PC violated the federal trademark law by making false and misleading advertising claims.

BRISTOL-MYERS SETTLES PLAVIX COVER-UP CLAIMS FOR $2.1 MILLION, FTC v. Bristol-Myers Squibb Co., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 2, Andrews Pharmaceutical Litigation Reporter April 20, 2009
Bristol-Myers Squibb Co. will pay $2.1 million in civil penalties to settle charges that it lied to federal regulators about a silent agreement not to compete with Apotex Inc. once the generics maker unveiled its own version of the popular blood thinner Plavix. The settlement, approved in a unanimous vote of the Federal Trade Commission's four members, was filed with the U.S. District Court for the District of Columbia March 26.
Briefs and Other Related Documents: 2009 WL 964937, 2009 WL 964935, 2009 WL 964932

FIFTH CIR. AFFIRMS LILLY WIN IN TEXAS ZYPREXA SUICIDE LAWSUIT, Ebel v. Eli Lilly & Co., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 3, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A federal appeals court has upheld a ruling for Eli Lilly & Co. in a failure- to-warn suit alleging a Texas man's use of the antidepressant Zyprexa led him to commit suicide. The 5th U.S. Circuit Court of Appeals unanimously affirmed a federal judge's decision granting Lilly's motion for summary judgment under the "learned intermediary" doctrine.The judge had said Philip Ebel's physician knew of Zyprexa's possible side effects.

FEDERAL JUDGE EXPANDS COVERAGE FOR PLAN B, Tummino v. Torti, 25 No. 3 Andrews Pharmaceutical Litig. Rep. 4, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A federal judge in Brooklyn has ordered the Food and Drug Administration to allow sales of Plan B emergency contraception to women under the age of 17 without a prescription. U.S. District Judge Edward R. Korman of the Eastern District of New York criticized current and former FDA officials for using "political considerations, delays and implausible justifications" to hold up the over-the- counter sale of the birth control drug.

CLASS SUIT OVER VIOXX CONSUMER COSTS IS REJECTED IN N.J., In re Vioxx Litig., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 5, Andrews Pharmaceutical Litigation Reporter April 20, 2009
Merck & Co. has won dismissal of a New Jersey state court lawsuit that sought recovery of out-of-pocket expenses consumers paid for the recalled pain drug Vioxx. The proposed class-action lawsuit was filed by two former Vioxx users seeking to represent consumers who used the drug from June 1999 until its October 2004 recall because of its link to strokes and heart attacks.

MO. CLASS SUIT CLAIMS ILLEGAL PROMOTION OF ANTIDEPRESSANTS, Universal Care v. Forest Pharms., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 6, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A federal class action filed in St. Louis federal court seeks to have Forest Pharmaceuticals cough up profits it garnered through the allegedly illegal promotion of its antidepressants Celexa and Lexapro for use by teens and children. The suit is spearheaded by California-based health insurer Universal Care Inc., which says it covered the cost of the mood drugs provided to insured children, and by two plaintiffs who say they paid at least part of the costs.
Briefs and Other Related Documents: 2009 WL 964938

OHIO FED. COURT WON'T REVISIT SUIT OVER DIET-DRUG DEATH, Longs v. Wyeth, 25 No. 3 Andrews Pharmaceutical Litig. Rep. 7, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A federal judge in Cleveland has refused to vacate or revise an order granting summary judgment to Wyeth in a lawsuit alleging the diet drug Redux caused an Ohio woman's death. U.S. District Judge Solomon Oliver Jr. of the Northern District of Ohio dismissed the suit against the drugmaker in February 2008.

ATTORNEYS WIN $1.4 MILLION IN FEES IN VACCINE TEST CASES, Cedillo v. Sec'y of Health & Human Servs., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 8, Andrews Pharmaceutical Litigation Reporter April 20, 2009
Even though their clients lost, three law firms that filed claims alleging that mercury in vaccines causes autism will receive more than $1.4 million in interim fees for their efforts, the U.S. Court of Federal Claims has ruled. Special Master George Hastings Jr. said the three firms deserved the award because dozens of employees worked for several years on the highly complex cases, involving tens of thousands of pages of evidence and the testimony of 28 expert witnesses.

CVS TO PAY $2.25M TO SETTLE PRIVACY CASE, In re CVS Caremark Corp., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 9, Andrews Pharmaceutical Litigation Reporter April 20, 2009
CVS Caremark has agreed to pay $2.25 million to settle charges that it violated federal privacy regulations when pharmacy employees threw out prescription records and drug bottles into open trash bins. The settlement resolves a joint investigation by the U.S. Department of Health and Human Services and the Federal Trade Commission prompted by 2006 media reports that Dumpsters behind certain CVS pharmacies contained pill bottles with patients' names, Social Security numbers and insurance information.

DRUG ERROR KILLED WOMAN IN OHIO NURSING HOME, SUIT SAYS, Freudeman v. The Landing of Canton, 25 No. 3 Andrews Pharmaceutical Litig. Rep. 10, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A non-diabetic resident of an Ohio assisted-living facility died from injuries she sustained when the staff negligently gave her a diabetes medication, according to a lawsuit recently removed to federal court. Dennis Freudeman's lawsuit against the owner and operator of The Landing of Canton assisted-living community alleges that medication caused a dangerous drop in his mother's blood sugar level.
Briefs and Other Related Documents: 2009 WL 286781, 2009 WL 286788, 2009 WL 286789

FEDERAL TIME-COMPUTATION RULES TO BE CHANGED IN 2009, John H. Tatlock, Esq., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 11, Andrews Pharmaceutical Litigation Reporter April 20, 2009
In the first installment of a two-part commentary attorney John Tatlock urges lawyers in all practice areas to familiarize themselves with pending changes in how deadlines are calculated in federal, civil, criminal and bankruptcy court proceedings. Sometime before Dec. 1, 2009, all attorneys practicing in federal court will begin familiarizing themselves with more than 170 proposed amendments to the federal time-computation rules.

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Friday, April 24, 2009

IT Developments from the U.S. Courts with Rosemary-Date Cookies

Courts of Appeals Use E-Technology to Deliver Opinions

The First, Third, Seventh, Eighth, Ninth, and the Eleventh Circuits, are using Real Simple Syndication (RSS) to deliver web content directly to interested parties, eliminating the usual e-mail notification.
For more information, click here.

Update: Fiscal Year 2009 and 2010 Budgets

With the Omnibus Appropriations Bill for FY 2009, the Judiciary finally received funding for this year. Here's a look at where the FY 2009 money goes in the federal court system, and at the Judiciary's FY 2010 request.
For more information, click here.

Innovative IT Programs Boost Court Efficiencies

Four innovative information technology projects that involve collaboration between two or more federal courts provide capabilities not currently available through national IT product.
For more information, click here.

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Monday, April 13, 2009

Criminal Appellate Jurisdiction and other appetizing decisions

Criminal Appellate Jurisdiction: The deadline for filing notice of appeal in criminal case under Federal Rule of Appellate Procedure 4(b) is not grounded in federal statute and, accordingly, is not jurisdictional -- Government did not forfeit objection to untimely notice of appeal by failing to raise it before district court -- Although rule permitted district court, upon finding of excusable neglect or good cause, to extend time for defendant to file notice of appeal by no more than 30 days from original deadline, district court was not permitted to grant untimely motion which was filed after expiration of extended period
Reported at 21 Fla. L. Weekly Fed. C1675a

Jury Selection and Peremptory challenges -- If all seated jurors are qualified and unbiased, Due Process Clause does not require automatic reversal of a defendant's conviction because a state trial court erroneously denied the defendant's peremptory challenge to the seating of a juror -- Right to exercise peremptory challenges in state court is determined by state law, and state law determines consequences of an erroneous denial of such a challenge -- Court has no cause to reverse state supreme court's determination that, under circumstances, trial court's error did not warrant reversal of defendant's conviction
Reported at 21 Fla. L. Weekly Fed. S725a

Criminal law -- Indictment -- Defects -- Failure to charge offense -- Indictment did not fail to charge an offense for three counts of laundering property represented to be proceeds from a specified unlawful activity, and presented no Fifth Amendment violation, where indictment included the word “intentionally” and specific references to statutory provisions which described different forms of intent required to violate money laundering statute -- Combination of statutory citation and reference to essential element discussed in that statutory subsection served as reasonable basis for inferring that grand jury found that defendants committed money laundering with intents described in statute -- Constructive amendment -- District court's jury instructions did not constructively amend indictment where jury charge did not expand basis for conviction -- It was permissible to indict in the conjunctive by charging defendants with violation of multiple subsections, but charge jury in the disjunctive by stating that defendants could be found guilty if they violated either of those subsections -- Evidence was sufficient to support jury's verdict for money laundering under Section 1956(a)(3) -- Conspiracy to launder money -- Evidence was sufficient to sustain conviction for conspiracy to launder money where there was sufficient evidence for a reasonable juror to find that defendant entered into a conspiracy to launder drug proceeds with intent of both avoiding transaction reporting requirements and concealing or disguising drug proceeds and there was ample proof from which reasonable juror could find that conspiracy continued into relevant 5-year statute of limitations period -- Material variance -- There was no material variance between indictment which charged conspiracy to launder money and proof at trial on that count where substantial evidence supported jury's finding of single conspiracy based on existence of common goal of avoiding transaction reporting requirements and disguising drug proceeds, nature of underlying scheme, and overlap of participants -- Forfeiture -- No error in ordering forfeiture of inventories of defendant companies and company's bank account which facilitated the money laundering offenses -- Error to order forfeiture of company's bank account for which there was no evidence linking the account to reporting and laundering offenses -- Excessive fines -- Remand of previously unaddressed issue of whether forfeiture of two companies' inventories and bank accounts constituted excessive fine under Eighth Amendment is appropriate, where there is no clear factual basis for evaluating issue -- District court did not justify imposition of joint liability on defendants for personal money judgments on counts of money laundering and failure to follow reporting requirements, neither of which are types of offenses for which joint and several liability would be appropriate -- Forfeiture of substituted assets -- No error in ordering forfeiture of defendant's real property as substitute asset for personal money judgment on conspiracy to launder money charge
Reported at 21 Fla. L. Weekly Fed. C1659a

Criminal law -- Sex offenders -- Registration -- Error to dismiss indictment charging failure to register as required by Sex Offender Registration and Notification Act on ground that SORNA exceeded Congress's authority under Commerce Clause
Reported at 21 Fla. L. Weekly Fed. C1678a

Criminal law -- Attempted voluntary manslaughter -- Attempted robbery with firearm -- Charges arising out of incident in which one of two cab passengers attempted to rob driver and, in the process, shot driver -- Evidence -- Hearsay -- Exceptions -- Statements against penal interest -- Error to exclude statements made by uncharged passenger during police interview in which passenger admitted that he had had a gun matching that used to shoot cab driver in his pocket earlier on the day of the incident and was telling people, “I'm fixin' to rob somebody,” stated that he had possession of the gun used in the shooting after the incident and had sold it to a stranger two days later, admitted to changing clothes immediately after the shooting because he knew police would be looking for the shooter, and told officer that he did not talk to cab driver at any time during cab ride -- Defendant's request to admit passenger's statements was properly limited to only those statements that were self-inculpatory, although entire statement contained portions that were self-exculpatory but inculpated defendant -- Requirements for admissibility were met where passenger was unavailable to testify at trial; statements were relevant to misidentification defense, given driver's testimony that the man who shot him did not speak at all during cab ride while he and the other man chatted during the ride; proffered evidence tended to inculpate passenger and exculpate defendant; and self-inculpatory statements were sufficiently corroborated -- New trial required -- Jury instructions -- Principals -- Trial court erred in instructing jury on principals where evidence did not show that defendant acted in concert with anyone to commit the crimes with which he was charged, but instead showed that two men initially got into cab with intent of committing petit theft by riding without paying, one man got out and fled when destination was reached, in keeping with plan, and second man remained in cab, shot, and attempted to rob driver -- On remand, should state again seek principals instruction, trial court must ensure that instruction is supported by evidence actually presented at trial before giving instruction
Reported at 34 Fla. L. Weekly D664a

Criminal law -- Robbery with weapon -- Double jeopardy -- Separate convictions for robbery of two different employees of store violated prohibition against double jeopardy where defendant took store's money from one employee but did not make a separate and distinct taking of store's money from the other employee -- Defendant was properly convicted of robbery of vehicle from a third employee -- Violation of constitutional prohibition against double jeopardy is fundamental error that can be raised for first time on appeal
Reported at 34 Fla. L. Weekly D668a

Criminal law -- Search and seizure -- Vehicle stop -- Officer with Florida Fish and Wildlife Conservation Commission did not have authority to stop defendant in wildlife management area for a resource inspection in the absence of a reasonable suspicion that defendant was engaged in criminal activity or violating traffic laws -- Trial court erred in concluding that no reasonable suspicion of unlawful activity was required for stop of vehicle in wildlife management area
Reported at 34 Fla. L. Weekly D670a

Criminal law -- Felon in possession of firearm -- Speedy trial -- Interstate Agreement on Detainers -- District court did not abuse its discretion when it dismissed first indictment without prejudice for violation of Speedy Trial Act, after considering three factors pertinent to determining whether dismissal should be with or without prejudice -- District court did not err in denying motions to dismiss for violation of Sixth Amendment right to speedy trial -- No error in denying motion to dismiss indictment under Rule 48(b), which provides that dismissal is mandatory only if defendant's constitutional rights have been violated -- No error in denying motion to dismiss which was based on argument that due process rights were violated by government's retention of defendant in federal custody after first indictment had been dismissed without prejudice, rather than returning defendant to state custody -- Interstate Agreement on Detainers applied where detainer was lodged against defendant before his first indictment while he was in state custody -- Dismissal of first indictment without prejudice did not produce final resolution of charges against defendant and, accordingly, original detainer remained in effect -- Although government technically violated speedy trial clause of IAD when it failed to return defendant to state custody after dismissal of first indictment and defendant remained in receiving state more than 120 days after his arrival, violation of speedy trial clause of Interstate Agreement on Detainers Act can be harmless when United States is the receiving state -- Error was harmless in this case -- Search and seizure -- No error in denying motion to suppress evidence discovered after officers effected valid stop of vehicle in which defendant was passenger -- Evidence -- Statements of defendant were properly admitted where defendant knowingly, voluntarily, and intelligently waived right to remain silent -- Invocation of right to counsel on state charges did not apply to federal charges against defendant -- Evidence was sufficient to support conviction -- Sentencing -- Error to fail to credit defendant with time spent in state custody based on his conviction for obstruction of justice where conduct related to state conviction was used to enhance defendant's federal sentence -- No error in refusing to reduce offense level based on acceptance of responsibility -- No error in calculating criminal history category
Reported at 21 Fla. L. Weekly Fed. C1654a

Criminal law -- Forfeiture -- Thirty-day period prescribed in 21 U.S.C. section 853 for filing of petition for ancillary hearing by third party asserting a legal interest in property subject to forfeiture can be triggered by notice of a preliminary order of forfeiture entered before sentencing -- Section 853 does not conflict with Rule of Criminal Procedure 32.2 -- Once preliminary order of forfeiture is entered, whether before or at the time criminal judgment is entered, the government is authorized to commence proceedings governing third-party rights and must publish notice of that order and its intent to dispose of the property -- Third party then has thirty days from receipt of notice of preliminary forfeiture order or the final publication of notice of the latter, whichever is earlier, within which to petition the court for an ancillary hearing -- Failure to file petition within thirty-day time period extinguishes third party's interests -- District court erred in denying government's motion to dismiss petition filed by third party within thirty days of criminal judgment, but more than thirty days after petitioner received proper written notice of preliminary order of forfeiture -- Government did not waive timeliness issue by not asserting it in motion for continuance of ancillary hearing -- Government's motion to dismiss was not untimely
Reported at 21 Fla. L. Weekly Fed. C1651a

Criminal law -- Indecent exposure -- Public lewdness -- Convictions for violation of state law while in national wildlife refuge, an area under jurisdiction of the United States -- Defendant affirmatively waived his right to challenge charging document on appeal where he encouraged the district court to proceed to trial on allegedly faulty count -- Evidence -- Prior crimes, wrongs, or bad acts -- No abuse of discretion in admitting evidence of defendant's prior sexual acts in the wildlife refuge -- Evidence was elicited on cross-examination of defendant and was plainly relevant to rebut defendant's claims on direct examination, bore directly on predisposition and an entrapment defense, and was not so unfairly prejudicial as to outweigh its probative value
Reported at 21 Fla. L. Weekly Fed. C1647b

Criminal law -- Plea agreement -- Violation by government -- Appeals -- Standard of review -- A forfeited claim that the government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b), Federal Rules of Criminal Procedure
Reported at 21 Fla. L. Weekly Fed. S721a

Criminal law -- Burglary of conveyance with assault or battery -- Sentencing -- Error to impose ten-year mandatory minimum sentence for use of firearm during commission of offense, rather than three-year mandatory minimum sentence, where burglary of conveyance with assault or battery was not one of offenses enumerated in statute calling for imposition of ten-year minimum mandatory
Reported at 34 Fla. L. Weekly D697a

Criminal law -- Extortion -- Prosecutions under Hobbs Act for extortion and Travel Act for traveling from Germany to the United States to carry out extortion -- Jury instructions -- No error in giving pattern instruction on Hobbs Act, which included in definition of extortion the wrongful use of actual or threatened force, violence “or” fear and stated that “fear” included “fear of economic loss as well as fear of physical violence” -- Indictment charged defendant with extortion under theories of physical violence and economic loss -- Fact that government, in its opening statement to jury, took the position that extortion was based on victims' fear of physical violence, not fear of economic loss, not basis for relief -- Evidence -- Hearsay -- Defendant not entitled to relief on claim that rights under Confrontation Clause were violated when district court admitted evidence of out-of-court statements made by defendant, other witnesses, and co-conspirator -- No abuse of discretion in denying motion for new trial on basis of newly discovered evidence in form of foreign court judgment against victim and circuit court order denying victim's motions for summary judgment in civil litigation pending in that court -- Although defendant contended that these court rulings were relevant to issue of his state of mind, and thus his intent, during time he allegedly conspired to commit Hobbs Act offense, court rulings had not yet issued at that time and, accordingly, could not have influenced defendant
Reported at 21 Fla. L. Weekly Fed. C1696a

Criminal law -- Possession with intent to distribute crack cocaine -- Sentencing -- Where appellate court previously remanded to district court for compliance with statute requiring district court to state reasons for giving defendant a life sentence and to explain why the sentence was appropriate, district court complied with that limited mandate by giving reasons for sentencing, including defendant's failure to take responsibility for his actions, lengthy criminal history, need to promote respect for law, deterrence, and need to protect public
Reported at 21 Fla. L. Weekly Fed. C1684a

Criminal law -- Search and seizure -- Vehicle stop -- Speeding -- Defendant was lawfully stopped for speeding -- Troopers did not unlawfully detain defendant beyond time allowed by law where less than thirty minutes elapsed between initial stop and completion of vehicle search, and computer check of defendant's license had not yet been completed -- Arrest for knowingly driving with a suspended license was supported by probable cause where trooper observed defendant driving with suspended license -- Evidence that defendant knew his license was suspended was not required to establish probable cause for arrest -- Incident to arrest -- Search of defendant's cell phone was not a valid search incident to arrest where search officer was rummaging for information related to odor of marijuana emanating from vehicle, rather than seeking to provide for officer safety or to preserve evidence related to defendant's driving with a suspended license -- Accordingly, photo of a “grow house” obtained pursuant to search of cell phone photo album directly led to and tainted resulting search of curtilage of residence listed on defendant's driver's license -- Residence -- Defendant's Fourth Amendment rights were violated when troopers searched curtilage of residence without a warrant -- Government failed to show that troopers approached residence just as would be expected of any private citizen such as mail deliverer or salesperson where one of troopers jumped the fence and unlocked electronic driveway gate through which other troopers proceeded -- Consent -- Government failed to satisfy its burden of establishing that taint from unlawful search of curtilage was sufficiently dissipated from defendant's subsequent consent to search of residence and, therefore, consent did not excuse warrantless full-scale search of residence and trailer parked behind home and within curtilage -- Evidence seized during search should be suppressed
Reported at 21 Fla. L. Weekly Fed. D561a

Criminal law -- Using minors to engage in sexually explicit conduct outside United States for purpose of producing visual depictions and transporting images to U.S. -- Sentencing -- Government failed to demonstrate that sentence imposed, which government contended was too lenient, was not within borders of reasonable sentences under circumstances of instant case
Reported at 21 Fla. L. Weekly Fed. C1685a

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Saturday, April 11, 2009

A smidgen of this and that: Eleventh Circuit revised Rules and Internal Operating Procedures (IOPs)

The Eleventh Circuit revised Rules and Internal Operating Procedures (IOPs) took effect on April 1, 2009.

Some of the revisions:
• Establish procedures for filing replacement briefs. 11th Cir. R. 31-6, Replacement Briefs.
• Describe procedures that the Court will use when an opinion contains a citation to
materials on the internet. IOP 10, Citation to Internet Materials in an Opinion (following
FRAP 36).
• Rescind 11th Cir. R. 40-4, Review of Order Dismissing Appeal for Lack of Jurisdiction, because the rule is no longer necessary.
• Clarify that since a published order dismissing an appeal is subject to rehearing (panel or en banc), the time for issuance of the mandate in that circumstance is governed by FRAP 41(b). 11th Cir. R. 41-3, Published Order Dismissing Appeal.

The Rules and Internal Operating Procedures of the Eleventh Circuit are available on the Eleventh Circuit Court of Appeal's Web site.

The Law Lady. For more information, go to www.easleyappellate.com and asked to be placed on our Recent Decisions of Interest mailings.