http://www.minnlawyer.com/type.cfm/Opinions The latest news updates for Opinions from Minnesota Lawyer en-us Copyright 2010, Minnesota Lawyer. http://www.minnlawyer.com/article.cfm/2010/02/08/SENTENCING--Enhancement-Prior-Conviction 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 sentence, the District Court properly applied the enhancement, and the appellate court holds that a suspended imposition of sentence is a prior conviction for purposes of Section 841(b)(1)(A). Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/SEVERANCE--Exculpatory-Testimony-Jury--Instruction (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 its discretion in denying his motion to sever the trials because he was forced to choose between preserving his right not to testify and testifying as to his brother’s innocence, previous decisions holding that the government does not need to make the exercise of the Fifth Amendment privilege cost free confirm that the defendant’s testimony was not compelled in violation of the privilege. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Domestic-Relations--ChildSupport-Arrearages 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 arrearages; father did not appeal the 2003 order; and in 2007, father asked that his arrearages be entirely forgiven; we conclude that the District Court did not abuse its discretion by denying father’s motion because Minn. Stat. sec. 518A.39, subd. 2(e), which became effective on Jan. 1, 2007, does not permit retroactive forgiveness of child-support arrearages for a time preceding service of a modification motion, regardless of a person’s incarceration.  Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/EVIDENCE--Other-Crimes-Limiting--Instruction-Drug-Transactions 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 area for similar drug transactions was not an abuse of discretion because the District Court instructed the jury that the evidence could be used only to establish the defendant’s intent, knowledge or lack of mistake. Judgment is affirmed. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/CIVIL-PRACTICE--Certification-For-Appeal--Adequacy-Of-Explanation-Finality 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 delay, the certification was an abuse of discretion and the appeal is dismissed. Appeal dismissed. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/CIVIL-PRACTICE--FELA-Longshore-Act-Jurisdiction 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 removal to federal court arguing that the action should be brought under the Longshore Act, the appellate court has jurisdiction to review the merits of the District Court’s remand order, and the District Court properly found that the injury was covered by FELA, rather than the Longshore Act, because the employee’s job duties were completed before train cars descended to a pier. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/IMMIGRATION--Removal-Credibility-Persecution 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 discrepancies and lack of corroboration, went to the heart of the immigrant’s claim of persecution, and the petition for relief is denied. Petition denied. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/IMMIGRATION--Removal-Criminal-Convictions-Moral-Turpitude 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 petition for review is denied. Petition denied. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/IMMIGRATION--Removal-Motion-to-Reopen-Changed-Country-Conditions 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 she did not demonstrate changed country conditions that would excuse the untimely filing of her second motion. Petition denied. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/INSURANCE--Death-Benefits--Insurable--Interest-Pecuniary-Relationship 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 insured’s life, summary judgment for the insurance company is reversed because the couple showed that they had a reasonable expectation of a pecuniary benefit or advantage if the insured, who was a long-time family friend, remained alive. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/ASSISTANCE-OF-COUNSEL--Procedural-Default 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 in holding that the defendant’s conflict-of-interest claim was procedurally defaulted and that no cause to excuse the default or a miscarriage of justice has been demonstrated.  Judgment is affirmed. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/COMPETENCY--Improper-Considerations--Pro-Se-Filings 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 Court erred in adopting the magistrate’s recommendations because these considerations did not support a finding of incompetency, especially in light of the defendant’s attorney’s belief that the defendant was capable of assisting in his own defense, the relevant assistance he had already provided and an expert’s opinion following a recent evaluation. Judgment is reversed. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/COURTAPPOINTED-COUNSEL--Eligibility-Fraudulent-Conveyance 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 affirmed because the court found that the defendant fraudulently conveyed real estate to his daughters with the intent to avoid a fine following his weapons conviction and the defendant had assets other than his homestead from which he could pay for his defense. Judgment is affirmed. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/DRUG-TRAFFICKING--Sufficiency-of-Evidence-Batson (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 linked them to the house, the evidence was sufficient to support the convictions. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/RESTITUTION--Garnishment 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 proceedings, the District Court did not err in ordering garnishment or denying in forma pauperis status. Judgment is affirmed. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/SEARCH-AND-SEIZURE---Probable-Cause-Scope 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 for a venue search of the residence in which the officers sought information to connect the defendant to the residence, so the first search warrant was valid, and the defendant did not show that the search exceeded the scope of the warrant. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/SEARCH-WARRANT--Stale-Information-Batson (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 information supported the officer’s belief that a defendant was engaged in ongoing criminal activity and information from an informant that was included in the application was sufficiently corroborated, so the search warrant was supported by probable cause. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/SENTENCING--Abduction-Enhancement-Force 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, deceit and parental authority to get the girl to leave with him, which showed the use of force necessary to overcome the victim’s will to support the abduction enhancement, despite the defendant’s argument that the step-daughter did not ask to be taken home. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/SENTENCING--Loss-Determination 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 earned on car sales through the credit union’s car leasing program, the District Court properly determined the amount of loss for sentencing and restitution purposes because the defendant failed to refute proof that all funds that he withdrew without approval, including funds transferred from the credit union’s car leasing program as commissions, were part of the total victim loss caused by his scheme. Judgment is affirmed. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/SEVERANCE--Irreconcilable-Defenses--Confrontation-Clause (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 because the government showed that their defenses were not truly mutually antagonistic and the defendants failed to show that they would have fared better in separate proceedings since the government offered sufficient evidence of guilt independent of any alleged conflict between the defenses. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/DISCHARGEABILITY--Fraud-Justifiable-Reliance--Innocent-Spouse 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, the court clearly erred in finding that the hotel’s reliance was not justifiable, so the hotel was entitled to have the debt excepted from discharge due to the debtor’s fraud, but the debtor’s husband’s debt to the hotel is dischargeable because there was no evidence that he knew of the fraud, and the court’s avoidance of the hotel’s judicial lien on the debtors’  home is also affirmed. Judgment is affirmed in part; reversed in part. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Evidence--Judicial-Notice-of-Documents 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. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Medical-Malpractice--Dismissal-Additional-Defendant 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 dismissal of her suit by amending her complaint to add a physician defendant whose alleged negligence constitutes the same cause of action as her claim against the original corporate defendant. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Constitutional-Law--Private-Right-of-Action 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 conclude that plaintiff fails to state a claim on which relief can be granted because no private right of action for state constitutional violations exists. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Domestic-Relations--ChildSupport-Modification 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 substantial change in circumstances and that the existing obligations were unreasonable and unfair, but the CSM found that the presumption was overcome by the circumstances of the parties, including father’s payment of additional expenses for the children, we conclude that the CSM did not make adequate findings to support her decision not to apply the presumptive child-support obligation because Minn. Stat. sec. 518A.37, subd. 2 (2008) requires written findings regarding how a deviation serves the children’s best interests, and because the CSM failed to quantify all of the parties’ expenses. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Domestic-Relations--Maintenance 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 full-time executive chef, we conclude that the District Court abused its discretion by excluding income from husband’s part-time jobs in evaluating his  net income for purposes of the maintenance award because husband’s part-time income began well in advance of the filing of the petition for dissolution and thus, husband failed to satisfy (i) and (ii) of Minn. Stat. sec. 518A.29 (2008). Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Domestic-Relations--Maintenance-Bonuses 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 provides a surplus; and before consideration of husband’s bonuses, his current maintenance payments will result in his falling short of his current reasonable monthly expenses and future maintenance payments will result in him being able to meet his reasonable monthly expenses, although his surplus will still be less than wife’s; we conclude that the District Court did not abuse its discretion by awarding wife one-third, rather than one-half, of the net amount of husband’s annual bonuses. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Drivers-License-Revocation--Urine-Test-Reliability 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 proper use of a preservative; and no evidence was offered that indicated the sample was tampered with or was not properly refrigerated; we conclude that the District Court did not abuse its discretion in admitting the results of the urine test. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Guardianship--Conservatorship--Fees-and-Expenses 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 District Court erred in considering sua sponte, and without affording the guardians/conservators an opportunity to challenge, the Service Fee Policy setting the appropriate fees to be charged when a guardian represents an indigent ward in Aitkin County and the Standards of Practice promulgated by the Minnesota Association of Guardianship and Conservatorship. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Guardianship--Conservatorship--Fees-and-Expenses 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 District Court erred in considering sua sponte, and without affording the guardians/conservators an opportunity to challenge, the Service Fee Policy setting the appropriate fees to be charged when a guardian represents an indigent ward in Aitkin County and the Standards of Practice promulgated by the Minnesota Association of Guardianship and Conservatorship. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Insurance--Construction-Subcontract 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 subcontractor; the subcontract contained an enforceable insurance agreement of the type contemplated by Minn. Stat. sec. 337.05 and an indemnification rider; and the insurance agreement anticipates primary coverage, not excess coverage; we conclude that the indemnification rider to the subcontract did not modify the scope of insurance required by the subcontract and that the subcontractor’s insurance policy provides primary coverage for the general contractor.  Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Juries--Bias-Employment-Relationship 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 visit to a medical facility in the company of her biological parents; one venire member was employed by the medical facility as a librarian and another, W.F., was married to an employee of the medical facility; and both the librarian and W.F. stated that they did not think their connections with the medical facility would affect their consideration of the case; we conclude that the District Court correctly determined that plaintiffs failed to establish a viable claim of juror bias because W.F. not subject to challenge for cause under Minn. R. Crim. P. 26.02, subd. 5,, plaintiffs demonstrated no actual bias, and plaintiffs did not object to the librarian’s and W.F.’s service until after the jury rendered its verdict. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Medical-Malpractice--Expert-Review 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 claims that section 145.682 should not apply to an indigent plaintiff; we conclude that the District Court did not abuse its discretion by dismissing the medical-malpractice action in light of the clear statutory mandate. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Products-Liability--Pharmaceutical-Causation 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 the eye drops; and the optometrist who examined plaintiff and whom plaintiff intended to call at trial found that there was no evidence of infection in plaintiff’s eyes and that natural aging, diet, exercise, and other diseases were possible causes of plaintiff’s eye condition; we conclude that the District Court did not err in granting summary judgment for defendants because the question of causation in this case requires an expert opinion, and plaintiff did not made a prima facie showing of causation. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Real-Property--Land-underlying-Road Land underlying Road Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Torts--Interference-with-Contract 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 letterhead along with a notice of assignment directing all of the trucking company’s clients to forward any invoice payments to the transportation factor; and the trucking company failed to demonstrate that a single customer wrongly paid invoices to the transportation factor as a result of the notice of assignment or the letter; we conclude that the District Court did not err in granting summary judgment in favor of the transportation factor on the claim of tortious interference with a contractual relationship because there is no evidence from which a factfinder could reasonably conclude that the trucking company incurred any damages. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Unemployment-Benefits--Misconduct 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 to do so and made a large purchase of building supplies for his own home on the card; and the ULJ found the employer’s testimony regarding authorized use of the credit card more credible than that of claimant; we conclude that the ULJ did not err in determining that claimant’s unauthorized purchases constituted misconduct. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Unemployment-Benefits--Misconduct 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 to his discharge, claimant asked to leave work to attend to a personal matter and his supervisor asked claimant to let him know what prep work needed to be done before claimant left; claimant did not inform his supervisor of the status of the prep work before he left; and the ULJ did not find credible claimant’s testimony that he was not required to report to his supervisor about his prep before he left; we conclude that the ULJ did not err in determining that claimant committed misconduct. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Unemployment-Benefits--Misconduct 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 subject to disciplinary action and or termination”; the ULJ found that claimant was discharged for a pattern of tardiness over a period of at least one year; and the employer did not use progressive discipline; we conclude that the manual did not mandate use of the progressive-discipline procedure and claimant was terminated for misconduct. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Unemployment-Benefits--Untimely-Appeal 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 time period for an appeal is strictly construed and we are unable to consider the reasons raised by claimant. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Arrest--Probable-Cause 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 possession of a pistol without a permit where the pistol was found in a place to which others had access, and there was no evidence from which the police could entertain an honest and strong suspicion that defendant was consciously exercising dominion and control over the pistol.  Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Drugs--Intent-to-Sell 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 and owe” sheets used by drug dealers, a digital scale and large number of small plastic baggies, we conclude that the record is sufficient to convict defendant of first-degree controlled substance crime, intent to sell methamphetamine, and does not reasonably support a theory that defendant possessed methamphetamine only for his personal use. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Evidence--Accomplices-Guilty-Plea 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 accomplice testified as a witness for the state and when the lead investigator testified, the prosecutor elicited evidence regarding the accomplice’s guilty plea to aiding and abetting second-degree criminal sexual conduct; we conclude that admission of the evidence was not plain error because evidence concerning a codefendant’s guilty plea may be admitted to rebut an anticipated defense theory and defendant’s failure to object deprived the state of an opportunity to justify the evidence contemporaneously, and even if admission of the evidence was plain error, it is not reasonably likely that absence of the error would have significantly affect the jury’s verdict. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Evidence--Confession-to-Program-Evaluator 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 Tennessen warning; and defendant admitted to a program evaluator that he had sexually abused his daughter; we conclude that the District Court did not abuse its discretion by admitting the confession defendant made to the evaluator because there is no evidence that government actors implicitly or explicitly promised that a confession would result in reunification with defendant’s children or a decision to forgo prosecution, and the Tennessen warning informed defendant that he was not required to provide any requested information and that there were circumstances in which confidentiality may not be maintained. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Evidence--Hearsay 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 incident in which defendant allegedly shot the same gun involved in the charged offenses, we conclude that the postconviction court did not err in determining that the errors were harmless beyond a reasonable doubt where a video camera recorded the incident in which defendant killed the victim; defendant acknowledged that he precipitated the incident and that nothing prevented him from retreating; and the jury acquitted defendant of the intentional murder charges and found him guilty of a lesser-included second-degree unintentional-murder offense. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Juries--Batson-Challenge 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 defendant’s father, “I’ve known him on and off for years.  Native people know each other”; the venire member stated that she could be impartial; and the state peremptorily struck the venire member after failing to have her stricken for cause; we conclude that the District Court did not clearly err when it found that defendant failed to present a prima facie case of racial discrimination because, even though the venire member was the only potential juror who identified herself as Native American and the state asked no questions of her during voir dire, the relevant facts include that venire member’s testimony that she had known defendant and his father for roughly 20 years. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Juvenile--Adult-Certification 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 multiple shots at two intended victims, resulting in life-threatening injuries, and endangered the lives of citizens by committing the offenses at a crowded mall; the juvenile’s assertion that one of the victims was wielding a knife and that he acted in self-defense is not supported by the evidence; and the District Court found that four years in EJJ does not provide adequate consequences and that juvenile programs presented too high of a risk to public safety; we conclude that the District Court did not abuse its discretion by certifying the juvenile as an adult, even though the court found that the prior record of delinquency weighed in favor of EJJ and the programming factor was neutral. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Postconviction-Relief--Procedural-Bar 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 ineffectiveness in impeaching the witnesses and in other issues; we conclude that petitioner’s claims are barred by Knaffla because petitioner knew of them at the time of direct appeal, and that petitioner’s claims of ineffective assistance relate to trial strategy, which is generally not reviewable for competence. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Restitution--Obligations-of-Codefendants 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 of court-ordered restitution and that case has been remanded for a hearing; we remand for further consideration of the restitution order because of the state’s agreement and because the joint and several nature of the restitution obligation becomes less coherent and more difficult to apply fairly when separate proceedings on that issue have disparate results.  Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Search-and-Seizure--Hot-Pursuit 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 recently used; no one answered the door of the residence; an officer approached a nearby storage shed and saw tracks leading up to it; and the officer pushed the unlocked door open and saw some of the stolen items; we conclude that the search of the shed was reasonable because police were in pursuit of a felony suspect and believed that he might be in the shed. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Search-and-Seizure--InevitableDiscovery-Doctrine 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 defendant’s suppression motion because the evidence supporting his conviction of first-degree methamphetamine manufacture would have been inevitably discovered where, prior to defendant’s arrest, police in two counties were investigating the purchases of large quantities of pseudoephedrine pills by defendant and his housemate; police were aware of suspicious nighttime activity at defendant’s residence; and the District Court credited an investigator’s testimony that he was prepared to obtain a search warrant. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Search-and-Seizure--Inventory-Search 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 items before allowing the driver into them;  while the driver was digging in the trunk, he suddenly stopped, nervously glanced at the officer, and closed the trunk; and the officer immediately began an inventory search in the trunk and found a handgun; we conclude that the evidence supports the District Court’s finding that the challenged search was part of a lawful inventory, even though the officer “had extra inspiration” to search the area that had caused the driver to suddenly stop rummaging in the trunk. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Search-and-Seizure--Warrant-to-Search-Residence 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 brought the drugs to school but did not indicate when, where, or how she came into possession of the drugs; and a search warrant was issued for defendant’s residence; we conclude that the warrant application provided probable cause for the search of defendant’s residence because an issuing magistrate could have inferred that a child of that age would be more likely to obtain illegal drugs at her residence than on the street.    Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Sentencing--Most-Serious-Offense 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 of felony domestic assault which has a presumptive range of 23 to 32 months, with a presumptive duration of 27 months; the guidelines’ severity-level rankings for each of the crimes was the same; and depending on whether a maximum potential sentence is determined by the presumptive guidelines sentence or the statutory maximum sentence, either of the crimes could be the most serious offense; we conclude that the District Court did not err by sentencing defendant to 30 months’ imprisonment for domestic assault by strangulation based on its understanding that that was the most serious offense. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Stop-of-Vehicle--Reasonable-Suspicion 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 that one of the area businesses had been burglarized during the past year, although they were mistaken as to which business; and the officers were unable to see into the vehicle due to the level of tint on its windows and believed that the tint level was illegal; we conclude that the District Court correctly determined that the stop of the vehicle was supported by reasonable suspicion of criminal activity. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Civil-Procedure--Tolling-Limitations-Period 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 after dismissal. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Criminal-Procedure--ITV-Hearing-Time-Changed 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. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Court-Administration--ADR-Ethics-Board The Honorable Mark Labine is appointed and the Honorable Sharon Hall is reappointed to the Alternative Dispute Resolution (ADR) Ethics Board. Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Plea--No-Basis-for-Withdrawal 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 also under investigation; and at the plea hearing, defendant responded to a series of leading questions by defense counsel, confirmed that it is “highly unusual for someone to plead guilty to a life sentence,” and gave an affirmative response to counsel’s question that established a factual basis for the element of premeditation;  we conclude that defendant failed to show his guilty plea was invalid, and thus, he is not entitled to withdraw his plea to correct a “manifest injustice” under Minn. R. Crim. P. 15.05, subd. 1, even though the proceeding utilized a practice which we discourage, that of establishing a guilty plea’s factual basis by permitting counsel to ask leading questions of a defendant, with the court remaining silent.  Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Tax--Unremitted-Sales-Tax 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 Court correctly concluded that the Commissioner of Revenue properly assessed the contractor for sales tax collected but not remitted to the Department of Revenue because Minn. Stat. sec.  289A.31, subd. 7(e) (2008) requires the contractor to remit the taxes he collected to the state, “even if erroneously or illegally collected.” Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Civil-Opinions--Workers-Compensation The decision is affirmed without opinion.  Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Civil-Opinions--Workers-Compensation The decision is affirmed without opinion.  Mon, 08 Feb 2010 23:00:00 CST http://www.minnlawyer.com/article.cfm/2010/02/08/Damages--Remittitur-Copyright-Infringement 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 each song, for a total verdict of $1,920,000, the District Court finds that the verdict is so shocking that it must be remitted and concludes that remittitur to $2,250—three times the statutory minimum—per sound recording is appropriate. Mon, 08 Feb 2010 23:00:00 CST