Under this definition the force element in § 2241(a)(1) may be satisfied without evidence of physical restraint similar to the examples (being tied, bound, or locked up) in the guidelines’ definition of physical restraint. In other words, the "use of force does not necessarily entail physical restraint." Arcoren, 929 F.2d at 1248. For example, a rapist could inflict blows upon his victim until she submits to a sexual act without restraining her in the manner contemplated by the physical restraint guideline, § 3A1.3. See United States v. Myers, 733F.Supp. 1307, 1309 (D. Minn. 1990). Similarly, an application of force to open the victim’s legs for intercourse has been deemed sufficient to satisfy § 2241(a)(1)’s force element, see United States v.
Williams,89 F.3d 165, 166, 168 (4th Cir. 1996), but this force would not constrain the victim’s movement in the manner contemplated by the physical restraint guideline.
Thursday, June 28, 2007
Wednesday, June 27, 2007
Tuesday, June 26, 2007
To my surprise, SCOTUS held that because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.
In dissent, Justice Stephens would have held that there was no First Amendment violation, but would have granted Morse qualified immunity.
In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school’s decision to punish Frederick for expressing a view with which it disagreed.
SCOTUS holds there is no taxpayer standing under Establishment Clause to challenge executive branch actions
In a splintered decision, the Court held there was no standing. The Court narrowly read Flast v. Cohen, 392 U. S. 83 (1968), in which it recognized an exception to the general rule against federal taxpayer standing. Under Flast, a plaintiff asserting an Establishment Clause claim has standing to challenge a law authorizing the use of federal funds in a way that allegedly violates the Establishment Clause. Because Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches--they were paid for out of general Executive Branch appropriations--Flast did not confer standing.
Monday, June 25, 2007
Active judgeships are premised on conservative case- and workload estimates. A court might briefly operate well absent a third of its members, but five openings will exact a toll. The pressure will intensify on the judges to resolve promptly, economically and fairly 5,300 annual filings. Indeed, the 4th Circuit now grants published opinions at the smallest rate (8%) and oral arguments at the next lowest (12%), which are crucial measures of appellate justice, although it continues to decide cases as fast as the 11 other tribunals, requiring only an average of 9.5 months. However, the court will reach a tipping point and find that the quality of justice is declining.
Twice a year associates can, based on their last 12 months of work, move into the 2,000-hour tier. Once a year, associates can move back into the less-than-2,000-hour option.
Friday, June 22, 2007
the presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. That double determination significantly increases the likelihood that the sentence is a reasonable one.
must consider, not only inferences urged by the plaintiff, as the Seventh Circuit did, but also competing inferences rationally drawn from the facts alleged. An inference of fraudulent intent may be plausible, yet less cogent than other, nonculpable explanations for the defendant’s conduct. To qualify as “strong”within the intendment of §21D(b)(2), we hold, an inference of scienter must be more than merely plausible or reasonable--it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.
Thursday, June 21, 2007
Fourth Circuit affirms district court's jurisdiction to uphold arbitration award under jurisdictional amount
Choice Hotels demanded well over $75,000 in its complaint, and there is no allegation that claim was not in good faith. That Choice Hotels did not win a judgment in arbitration for that amount is irrelevant in this context. "Events occurring subsequent to the institution of suit which reduce the amount recoverable below the statutory limit do not oust jurisdiction." St. Paul Mercury Indem. Co. v. Red Cab Co.,303 U.S. 283, 289-90 (1938); see Hood v. Bell, 84 F.2d 136, 137 (4thCir. 1936) (holding that a court does not lose diversity jurisdiction"because of a subsequent change in the conditions upon which jurisdiction was originally based"). Because the district court simply stayed this action, and then reopened it to confirm the award, we must determine the amount in controversy from the complaint itself. We therefore hold that the district court had subject matter jurisdiction under § 1332 because the good faith amount in controversy contained in Choice Hotels’ complaint well exceeded the $75,000 threshold.
Wednesday, June 20, 2007
Thus, under the hand of one is the hand of all theory of accomplice liability, acts committed by Sturkey were imputed to Thompson making him guilty of any acts done incidental to the execution of the common design or scheme of the crime.
Tuesday, June 19, 2007
SCOTUS holds that a passanger is siezed under the Fourth Amendment when the police stop the driver's automobile
The United States Supreme Court reversed. According to the Court:
We resolve this question by asking whether a reasonable person in Brendlin’s position when the car stopped would have believed himself free to “terminate the encounter” between the police and himself. Bostick, supra,at 436. We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.
Agreed. When the police stop a car, no one believes he is at liberty to simply exit the vehicle and walk away. SCOTUS got this one right.
Monday, June 18, 2007
Wednesday, June 13, 2007
None of the chain of custody witnesses testified to seeing inside the motel room in order to establish who was in the room making the alleged transaction. Additionally, none of the witnesses who heard only “one other voice” over the informant’s body wire could affirmatively identify this voice as being that of Appellant. Although Greenville police officers testified to a brief search of the informant both before and after the incident, and that they observed no other individuals enter or exit the room during their surveillance, this circumstantial evidence does not show how the informant came into possession of the drug evidence and in what condition he received it. Because the officers’ testimony does not fill the gap in the chain of custody left by the unavailable informant, the trial court erred in admitting the drug evidence received by the confidential informant.
Tuesday, June 12, 2007
The divided panel held that the "President lacks power to order the military to seize and indefinitely detain al -Marri. If the Government accurately describes al-Marri’ s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian." Hence, the panel suggested that the government try him in the civil justice system rather than holding him indefinitely.
District Judge Hudson, sitting by designation, dissented:
I believe the district court correctly concluded President had the authority to detain al-Marri as combatant or belligerent. Although al-Marri was not engaged in armed conflict with U.S. forces, he is stealth warrior used by al Qaeda to perpetrate terrorist against the United States. Al-Marri’s detention is under the AUMF “to prevent any future acts of international terrorism against the United States.” AUMF § 2(a). setting aside the amorphous distinction between combatant” and an “enemy belligerent,” there is little evidence that al-Marri was present in the United States and further the hostile and subversive activities organization responsible for the terrorist attacks that September 11, 2001.
I'll bet anyone $100 that this case will be en banced. At least the old Fourth Circuit would have. Considering that Dubya has five vacant seats he has not filled--who knows for sure. However, I'd guess that Judges Wilkins, Wilkinson, Niemeyer, Weidner, Traxler, Williams, Shedd and maybe Duncan will want to take a second look at this. The panel opinion was written by Judge Motz and joined by Judge Gregory--the Court's two most liberal members. This opinion is also Motz' audtion for the Supreme Court in case Hillary or a Democrat wins the White House.
That's not to say Judge Motz got this one wrong. In Hamdi, the Supreme Court addressed "whether the Executive has the authority to detain citizens who qualify as 'enemy combatants'" (i.e., individuals who were part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States in Afghanistan). It answered the question in the affirmative. The purpose of the detention of enemy combatants, it has always been argued, is to prevent their return to the battlefield. The government has obviously widened (or has it?) its definition of battlefield and asserts that terrorists captured within the U.S. (citizen or not) can be held indefinitely as enemy combatants. This invests the Executive with a massive amount of power and should give us pause so long as the civilian court system is operational and capable of hearing evidence against the alleged terrorists.
Al-Marri has never been on a battlefield and perhaps should be tried in the Court system.
The State Supreme Court reversed. The Court noted that although Lee’s blood alcohol level did not implicate a criminal DUI offense, testimony of Bunch’s experts constituted probative evidence of Lee’s impairment that arguably contributed to the accident. Bunch’s experts, relying on the blood alcohol level of 0.036% taken several hours after the accident occurred, estimated that Lee’s blood alcohol level at the time of the collision was closer to 0.066% or 0.096%. At that level, according to Bunch’s experts, Lee’s alcohol consumption would have negatively affected Lee’s judgment and his ability to multi-task, thus impairing his motorcycle driving skills. The Court also took into account evidence from other witnesses that Lee was speeding and that the impact occurred across the center line. Thus, the alcohol consumption prior to the accident was not inadmissible under Rule 403.
The case gained much notoriety in connection with the Zoloft defense, by which counsel argued that trial court erred in failing to charge the jury on the lesser included offenses of involuntary and voluntary manslaughter. In South Carolina, involuntary manslaughter is (1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others.
Pittman argues that he was entitled to an involuntary manslaughter charge because the killing of his grandparents was unintentional and reckless. Pittman claimed that taking Zoloft was a “lawful activity” because he was taking medicine prescribed to him by his doctor, and while under the influence of the legally ingested Zoloft, he killed his grandparents “unintentionally.” The trial court expressed reservation in accepting defense counsel’s argument that the ingestion of Zoloft satisfied the lawful act component required for an involuntary manslaughter charge. The trial court also found there was “no evidence under the law that this conduct was reckless conduct.”
The Supreme Court concluded that Pittman's conduct extended far beyond recklessness:
The record reflects that after a confrontation with his grandfather, Appellant deliberately waited until his grandparents retired to bed, retrieved his shotgun, loaded the shotgun, entered their bedroom, and intentionally shot his grandparents. Although Appellant argues that the shootings were unintentional and reckless, he submitted no evidence to support that finding. Like the trial court, we find the defense’s argument that the ingestion of Zoloft qualifies as a lawful act in the context of an involuntary manslaughter charge to be unconvincing. Accordingly, we conclude that the record contains no evidence upon which a jury could find that these killings were unintentional and a result of recklessness. Therefore, the trial court did not err in failing to charge the jury regarding involuntary manslaughter.
Monday, June 11, 2007
CNN has this story.
I'll post more on the case later today or in the morning.
What gets little notice, however, is a series of academic studies over the last half-dozen years that claim to settle a once hotly debated argument — whether the death penalty acts as a deterrent to murder. The analyses say yes. They count between three and 18 lives that would be saved by the execution of each convicted killer.
Friday, June 08, 2007
A group of Heller Ehrman lawyers is making bold recommendations -- including doing away with the billable hour -- to keep women from leaving their law firm careers.
Countering what has become known as the "opt-out revolution," in which women ditch corporate America mid-career to be homemakers, the attorneys created what they call the opt-in project.
Don't get me wrong--I'm all for women having careers and doing well. But, how about axing the billable hour because it would make all our lives better? Man, woman, child, client, associate, etc?
Thursday, June 07, 2007
Attorney General Henry McMaster, worried about North Carolina plans to transfer millions of gallons of water from rivers flowing into South Carolina, has said for months he plans to sue the neighboring state.His office said Tuesday it plans a "major announcement in the state's water war with North Carolina," but McMaster, contacted by The Associated Press, did not say exactly what he planned to say on Thursday.
"The plan, of course, has always been to go to the Supreme Court," he said. "That is what we have planned from the very beginning."South Carolina opposes plans by the cities of Concord and Kannapolis to pump up to 10 million gallons a day from both the Catawba and Yadkin river basins, both of which cross the state line.
Both McMaster and Gov. Mark Sanford oppose the water transfer.McMaster wrote North Carolina Attorney General Roy Cooper in December, saying residents who live near the Catawba and Wateree rivers in South Carolina have urged him to "take whatever legal action is necessary to protect South Carolina's interests and rights. We are preparing to do so."
Tuesday, June 05, 2007
The state Supreme Court held that statutory law permits DPPPS to impose “conditions of supervision” which “enhance…court imposed conditions” of probation. Enhancing Court conditions does not equate with the power to set its own conditions. Where monitoring is imposed by the court, DPPPS may require the probationer to participate in the GPS program as a condition of supervision under § 24-21-430 because this program would “enhance…court-imposed conditions.” Here, however, DPPPS could not unilaterally impose GPS monitoring on Stevens and thus his probation could not be revoked for violating the agreement between him and DPPS.
Monday, June 04, 2007
A North Carolina federal judge says he was told by the White House that he no longer is being considered for a seat on the U.S. 4th Circuit Court of Appeals in Richmond, Va.
U.S. District Court Judge Bob Conrad, 49, of Charlotte, said he received a telephone call in the past few weeks that he wasn't in line for an appeals court nomination by President Bush.
"I don't know why," Conrad said Thursday. "They didn't tell me. They didn't give me a reason."
Conrad was named by Bush as a U.S. attorney in 2001 and two years later was nominated for the judgeship.
There are three vacancies on the 15-member appeals court that hears appeals in Virginia, North and South Carolina, West Virginia and Maryland. Currently, the only North Carolina-based appeals court member is Judge Allyson Duncan of Raleigh.
Conrad said he was disappointed but is satisfied with his current job.
Friday, June 01, 2007
U.S. Sen. Lindsey Graham said Thursday he has recommended the White House fill an impending vacancy on the 4th U.S. Circuit Court of Appeals with a state appellate judge from Greenville or a Columbia lawyer.
They are John W. Kittredge, 52, of Greenville, a South Carolina Court of Appeals judge since 2003, and Steve A. Matthews, 51, managing director of the Haynsworth Sinkler Boyd law firm.