Opinions Released This Week
CRIMINAL OPINIONS
SENTENCING
SENTENCING - Enhancement; Prior Conviction
on February 8, 2010 01:08 PM CST
Where the government sought to enhance a defendant’s sentence based on a prior conviction in Missouri state court for sale of a controlled substance that resulted in a suspended imposition of...
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SEVERANCE
SEVERANCE - Exculpatory Testimony; Jury Instruction
on February 8, 2010 01:12 PM CST
(1)Where a defendant testified in a joint robbery trial that his co-defendant, who was his brother, was not involved in the robbery and the defendant argued on appeal that the District Court abused...
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Unpublished Civil Opinions
Domestic Relations
Domestic Relations - Child-Support Arrearages
on February 2, 2010 03:04 PM CST
Where in 2003 a child-support magistrate reduced father’s obligation to zero dollars because father was incarcerated and entered a judgment for the total amount of father’s outstanding...
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8th U.S. CIRCUIT COURT OF APPEALS
EVIDENCE - Other Crimes; Limiting Instruction; Drug Transactions
on February 8, 2010 12:57 PM CST
Where a defendant pleaded not guilty and generally denied participating in crack-cocaine crimes, the admission at trial of evidence that the defendant was investigated four years later in the same...
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CIVIL OPINIONS
CIVIL PRACTICE
CIVIL PRACTICE - Certification For Appeal; Adequacy Of Explanation; Finality
on February 8, 2010 11:18 AM CST
Where a District Court certified a case for appeal under Rule 54(b) but the court’s conclusory order did not explain how judicial economy would be served or why there was no just reason for...
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CIVIL PRACTICE - FELA; Longshore Act; Jurisdiction
on February 8, 2010 12:33 PM CST
Where a Missouri resident employed by Norfolk Southern Railway who was injured while working in Virginia sued his employer under the Federal Employers’ Liability Act and the employer sought...
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IMMIGRATION
IMMIGRATION - Removal; Credibility; Persecution
on February 8, 2010 12:38 PM CST
Where an immigrant from Uganda was denied asylum, withholding of removal and relief under the Convention against Terror, the immigration judge’s adverse credibility finding, based on...
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IMMIGRATION - Removal; Criminal Convictions; Moral Turpitude
on February 8, 2010 12:42 PM CST
Where an immigrant was convicted for unlawfully obtaining a Social Security number, the Board of Immigration’s conclusion that the crime involved moral turpitude was reasonable, and the...
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IMMIGRATION - Removal; Motion to Reopen; Changed Country Conditions
on February 8, 2010 12:45 PM CST
Where an immigration judge denied an application for asylum, withholding of removal and protection under the CAT for an immigrant from Uzbekistan, the motion to reopen was properly denied because...
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Insurance
INSURANCE - Death Benefits; Insurable Interest; Pecuniary Relationship
on February 8, 2010 12:47 PM CST
Where an insurer sought a declaration that a life-insurance policy was void because the couple who were named as owners and beneficiaries of the policy did not have an insurable interest in the...
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CRIMINAL OPINIONS
ASSISTANCE OF COUNSEL
ASSISTANCE OF COUNSEL - Procedural Default
on February 8, 2010 12:49 PM CST
Where a defendant convicted of marijuana charges claimed ineffective assistance of counsel based on a public defender’s dual representation of him and his wife, the District Court did not err...
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COMPETENCY
COMPETENCY - Improper Considerations; Pro Se Filings
on February 8, 2010 12:51 PM CST
Where a magistrate judge considered the pro se filings of a represented defendant and his interruptions of his attorney during a hearing to find that the defendant was incompetent, the District...
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COURT-APPOINTED COUNSEL
COURT-APPOINTED COUNSEL - Eligibility; Fraudulent Conveyance
on February 8, 2010 12:54 PM CST
Where a District Court ordered a defendant to reimburse the government for legal services after the court made a finding that the defendant was financially able to obtain counsel, the judgment is...
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DRUG TRAFFICKING
DRUG TRAFFICKING - Sufficiency of Evidence; ‘Batson’
on February 8, 2010 12:56 PM CST
(1)Where two defendants were linked to drug trafficking through evidence including digital scales found in a car and house, drug paraphernalia and guns found in the house, and indentifying documents...
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RESTITUTION
RESTITUTION - Garnishment
on February 8, 2010 12:59 PM CST
Where a defendant found guilty of filing false tax returns was ordered to pay restitution as a condition of supervised release and the defendant moved to quash the government’s garnishment...
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SEARCH AND SEIZURE
SEARCH AND SEIZURE - Probable Cause; Scope
on February 8, 2010 01:02 PM CST
Even though officers did not address suspected drug activity in an affidavit for a search warrant of defendant’s residence, this did not affect the probable cause that existed independently...
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SEARCH WARRANT
SEARCH WARRANT - Stale Information; ‘Batson’
on February 8, 2010 01:01 PM CST
(1)Where officers included information in a warrant application obtained from a drive by of a home four days earlier, the information was not stale and under the totality of the circumstances, the...
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SENTENCING
SENTENCING - Abduction Enhancement; ‘Force’
on February 8, 2010 01:07 PM CST
Where a District Court applied a four-level enhancement for abduction to the sentence of a defendant sentenced for the attempted sexual battery of his step-daughter, the defendant used flattery,...
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SENTENCING - Loss Determination
on February 8, 2010 01:10 PM CST
Where a credit-union president who pleaded guilty to one count of embezzlement argued that the amount of loss to the credit union should be reduced by the value of commissions that the defendant...
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SEVERANCE
SEVERANCE - Irreconcilable Defenses; Confrontation Clause
on February 8, 2010 01:14 PM CST
(1)Where defendants convicted in a murder case argued their defenses were irreconcilable resulting in an unfair trial, the District Court did not abuse its discretion in denying the motions to sever...
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BANKRUPTCY APPELLATE PANEL
DISCHARGEABILITY
DISCHARGEABILITY - Fraud; Justifiable Reliance; Innocent Spouse
on February 8, 2010 01:16 PM CST
Where a hotel appealed a bankruptcy court’s order discharging a debt incurred by a Chapter 7 debtor who failed to pay a $60,000 bill after hosting a “Red Hat” event at the hotel,...
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Court of Appeals
Published Civil Opinions
Evidence
Evidence - Judicial Notice of Documents
on February 2, 2010 02:49 PM CST
It is error for a District Court to take judicial notice of non-record documents that the parties have not had an opportunity to challenge or address.
Thus, in this case where the guardians and...
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Medical Malpractice
Medical Malpractice - Dismissal; Additional Defendant
on February 2, 2010 02:51 PM CST
A medical malpractice plaintiff who misses the deadline for serving a defendant corporation with expert witness affidavits required by Minn. Stat. sec. 145.682, subd. 2(2) and 4 may not avoid...
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Unpublished Civil Opinions
Constitutional Law
Constitutional Law - Private Right of Action
on February 2, 2010 03:02 PM CST
Where plaintiff alleges that the impounding of his motorcycle by a city police officer was a violation of his right under the Minnesota Constitution to be free from unreasonable seizures, we...
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Domestic Relations
Domestic Relations - Child-Support Modification
on February 2, 2010 03:06 PM CST
Where the child-support magistrate acknowledged that application of the child-support guidelines to the parties’ current circumstances resulted in a statutory presumption that there was a...
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Domestic Relations - Maintenance
on February 2, 2010 03:08 PM CST
Where husband earned an average of $11,158 per year for the past four years as a school bus driver and approximately $1,200 per year plowing snow in his neighborhood, in addition to his income as a...
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Domestic Relations - Maintenance; Bonuses
on February 2, 2010 03:10 PM CST
Where the District Court granted permanent maintenance and set the amount of current and future maintenance payments at a level that allows wife to meet her reasonable monthly expenses and even...
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Driver’s License Revocation
Driver’s License Revocation - Urine Test Reliability
on February 2, 2010 03:12 PM CST
Where the record includes a request for a laboratory analysis showing that a sealed urine-collection kit was received by the BCA; an officer testified that he followed BCA procedures, including the...
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Guardianship / Conservatorship
Guardianship / Conservatorship - Fees and Expenses
on February 2, 2010 03:14 PM CST
Where the District Court disallowed the accounts and certain fees and expenses paid to the guardians and conservators of a non-indigent ward out of the ward’s estate, we conclude that the...
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Guardianship / Conservatorship - Fees and Expenses
on February 2, 2010 03:16 PM CST
Where the District Court disallowed the accounts and certain fees and expenses paid to the guardians and conservators of a non-indigent ward out of the ward’s estate, we conclude that the...
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Insurance
Insurance - Construction Subcontract
on February 2, 2010 03:18 PM CST
Where the “headache ball” and chains on a crane, which was owned by the general contractor and operated by an employee of the general contractor, fell and struck an employee of a...
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Juries
Juries - Bias; Employment Relationship
on February 2, 2010 03:20 PM CST
Where a child’s adoptive parents allege that the child’s injuries were the result of the treating physicians’ failure to report suspected child abuse after the child’s first...
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Medical Malpractice
Medical Malpractice - Expert Review
on February 2, 2010 03:23 PM CST
Where plaintiff sued a former medical provider who had treated him for a mental illness; plaintiff did not file an affidavit of expert review as required by Minn. Stat. sec. 145.682; and plaintiff...
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Products Liability
Products Liability - Pharmaceutical; Causation
on February 2, 2010 03:25 PM CST
Where plaintiff has experienced redness, scratchiness, and pain in his eyes since using eye drops which he purchased in a package of single-use vials; laboratory testing detected a type of yeast in...
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Real Property
Real Property - Land underlying Road
on February 2, 2010 03:26 PM CST
Land underlying Road
Where in the 1950s the Stowrings platted a subdivision out a larger tract of land; the plat contains a dedicated roadway; the parties, who are subsequent owners of a lot and...
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Torts
Torts - Interference with Contract
on February 2, 2010 03:29 PM CST
Where a trucking company alleges that an employee of a transportation factor, under the guise of the trucking company’s “attorney-in-fact,” sent a letter on forged trucking company...
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Unemployment Benefits
Unemployment Benefits - Misconduct
on February 2, 2010 03:32 PM CST
Where claimant was authorized to obtain job-related construction supplies using the employer’s company credit card; claimant made small personal purchases on the card even after being told not...
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Unemployment Benefits - Misconduct
on February 2, 2010 03:33 PM CST
Where claimant, who worked as an assistant chef, was told during previous disciplinary actions that he needed to inform his supervisors of the progress of his prep work; during the incident that led...
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Unemployment Benefits - Misconduct
on February 2, 2010 03:35 PM CST
Where the employee manual sets forth progressive-discipline procedures for tardiness and absence but also states, “Any employee who fails to maintain an acceptable attendance record will be...
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Unemployment Benefits - Untimely Appeal
on February 2, 2010 03:37 PM CST
Where the ULJ dismissed claimant’s appeal as untimely; and claimant asks for reconsideration on the basis that her untimely appeal was attributable to a medical condition; we conclude that the...
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Unpublished Criminal Opinions
Arrest
Arrest - Probable Cause
on February 2, 2010 03:39 PM CST
Even though defendant was a passenger in a vehicle in which officers found a pistol under the left rear passenger seat, we conclude that officers lacked probable cause to arrest defendant for a...
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Drugs
Drugs - Intent to Sell
on February 2, 2010 03:43 PM CST
Where officers recovered a large amount of cash on defendant’s person and found in defendant’s vehicle 10.5 grams of methamphetamine, a notebook with markings consistent with “pay...
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Evidence
Evidence - Accomplice’s Guilty Plea
on February 2, 2010 03:46 PM CST
Where defendant was charged with criminal sexual conduct based on evidence that he engaged in sexual conduct with a 13-year girl while aided by an accomplice who used force or coercion; and when the...
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Evidence - Confession to Program Evaluator
on February 2, 2010 03:48 PM CST
Where defendant’s daughter alleged that defendant had sexually abused her; defendant was referred by county child protective services to a sex-offender treatment program where he signed a...
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Evidence - Hearsay
on February 2, 2010 03:49 PM CST
Although the postconviction court found that it was error to admit, through an officer’s testimony and cross-examination of defendant, a nontestifying witness’s description of a separate...
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Juries
Juries - ‘Batson’ Challenge
on February 2, 2010 03:52 PM CST
Where defendant is a Native American; a venire member stated she knew defendant but not well, she had lived down the road from his family 20 years earlier, and in responding to a question about...
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Juvenile
Juvenile - Adult Certification
on February 2, 2010 03:53 PM CST
Where the complaint charged the juvenile with two counts of attempted second-degree murder committed for the benefit of a gang; the District Court found that the then-16-year-old juvenile fired...
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Postconviction Relief
Postconviction Relief - Procedural Bar
on February 2, 2010 04:00 PM CST
Where petitioner’s claims are based on alleged inconsistencies in the testimony of witnesses at trial; and, for the first time on appeal, petitioner challenges his counsel’s...
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Restitution
Restitution - Obligations of Codefendants
on February 2, 2010 04:02 PM CST
Where the state agreed in defendant’s plea agreement to cap defendant’s sentence at the same sentence as his codefendant; and the codefendant, in a separate appeal, challenged the amount...
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Search and Seizure
Search and Seizure - Hot Pursuit
on February 2, 2010 04:04 PM CST
Where police, who received a report that a man had just stolen some items, went to a residence believed to be that of the suspect and saw the suspect’s car, which appeared to have been...
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Search and Seizure - Inevitable-Discovery Doctrine
on February 2, 2010 04:06 PM CST
Even though defendant was illegally arrested and police obtained a search warrant based on admissions he made after his arrest, we conclude that the District Court did not err in denying...
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Search and Seizure - Inventory Search
on February 2, 2010 04:08 PM CST
Where the driver, whose car was going to be towed, wanted to retrieve some belongings from the car and its trunk; the officer briefly scanned the interior of the vehicle and the trunk for dangerous...
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Search and Seizure - Warrant to Search Residence
on February 2, 2010 04:12 PM CST
Where five middle-school-aged students became ill at school because they ingested methamphetamine; a written statement by a student indicated that defendant’s middle-school-aged daughter had...
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Sentencing
Sentencing - Most Serious Offense
on February 2, 2010 04:14 PM CST
Where defendant was convicted of domestic assault by strangulation which has a presumptive sentencing range of 26 to 36 months, with a presumptive duration of 30 months; defendant was also convicted...
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Stop of Vehicle
Stop of Vehicle - Reasonable Suspicion
on February 2, 2010 04:15 PM CST
Where officers observed defendant’s vehicle parked on a street in a commercial area during the early morning hours when all of the businesses in the area were closed; the officers believed...
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Supreme Court
Civil Opinions
Civil Procedure
Civil Procedure - Tolling Limitations Period
on February 3, 2010 02:53 PM CST
The tolling provision in 28 U.S.C. sec. 1367(d) (2006) suspends the running of a limitations period on a state-law claim during the time that the claim is pending in federal court and for 30 days...
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Criminal Procedure
Criminal Procedure - ITV Hearing Time Changed
on February 3, 2010 03:02 PM CST
The time for a hearing to consider the recommendations of the ITV Task Force is changed to March 30, 2010, at 9:30 a.m.
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Orders
Court Administration - ADR Ethics Board
on February 3, 2010 02:59 PM CST
The Honorable Mark Labine is appointed and the Honorable Sharon Hall is reappointed to the Alternative Dispute Resolution (ADR) Ethics Board.
Andrea Niemi is appointed as ADR Ethics Board chair and...
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Plea
Plea - No Basis for Withdrawal
on February 3, 2010 02:57 PM CST
Where defendant pled guilty to first-degree premeditated murder on the agreement that the state would dismiss his felony murder charge and not prosecute him for a triple homicide for which he was...
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Tax
Tax - Unremitted Sales Tax
on February 3, 2010 02:55 PM CST
1. Where a contractor collected amounts designated as sales tax from his customers rather than charging his customers an amount for materials that already included the amount of tax paid, the Tax...
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Workers’ Compensation
Workers’ Compensation - Workers’ Compensation
on February 3, 2010 03:05 PM CST
The decision is affirmed without opinion.
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Workers’ Compensation - Workers’ Compensation
on February 3, 2010 03:07 PM CST
The decision is affirmed without opinion.
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U.S. District Court
Damages
Damages - Remittitur; Copyright Infringement
on February 4, 2010 12:28 PM CST
Where a jury found that defendant, an individual, had willfully infringed 24 sound records by illegally downloading them from the Internet and awarded statutory damages in the amount of $80,000 for...
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