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1 (1986), this evidence is not the sort that is cognizable on collateral review. See Sawyer v. Whitley, 505 U.S. 333, 347, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (“[T]he ‘actual innocence’ requirement must focus on those elements that render a defendant eligible for the death penalty, and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error.”). This is especially true given that the evidence did not exist at the time of White’s sentencing, so there is no argument that it would have been included but for some constitutional defect. Finally, this evidence would not satisfy the elevated Schlup standard, even if it were to be admissible. See, e.g., Hughes v. State, 897 S.W.2d 285, 294 & n. 13 (Tex.Crim.App.1994) (<HOLDING>). Accordingly, White has not made a substantial Holdings: 0: holding that 21 years of crimefree violencefree behavior twelve years of good behavior in prison and other meaningful productive activities were not sufficient to outweigh the states evidence in support of the death penalty 1: holding that the good behavior requirement of a suspended sentence defined the period of suspension 2: holding that sentences of five years in prison followed by ten years probation were illegal sentences that exceeded the statutory maximum of five years for a thirddegree felony 3: holding that the evidence was sufficient to demonstrate retaliation for activities that occurred two years prior to the termination 4: holding sentence of thirtyfive years in prison with ten years probation for seconddegree murder is within the statutory maximum under 1997 statutes
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that the Government was relieved of honoring this forbearance if applicable laws and regulations changed. See Hometown Fin., Inc. v. United States, 409 F.3d 1360 (Fed.Cir.2005). The Federal Circuit in Hometown recognized that a similar provision in a forbearance letter “clearly sets forth the understanding of the parties that regulatory change was possible because it refers to calculating the [regulatory capital] requirement in accordance with ‘any successor regulation.’ ” Id. at 1367-68. However, a proviso excepted the five-year period following consummation of the acquisition, during which the regulatory capital requirement was required to take into account the forbearances granted. Id. at 1368; cf. Admiral Fin. Corp. v. United States, 378 F.3d 1336, 1339-43 (Fed.Cir.2004) (<HOLDING>); Guar. Fin. Servs., Inc. v. Ryan, 928 F.2d Holdings: 0: holding that contract uniformly placed risk of regulatory change on plaintiff 1: holding that plaintiff stated a claim for breach of contract when it alleged the government failed to purchase insurance for plaintiff as agreed by contract 2: holding that a breach of contract action by the department of health for the commonwealth of puerto rico did not qualify as an exercise of police or regulatory power even if related to the departments general regulatory power 3: holding that the plaintiff could bring an action for negligent misrepresentation although the plaintiff could not sue on the contract because the contract was void 4: holding that a contract must entitle the plaintiff to money damages in the event of the governments breach of that contract
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testimony from her grandparent, the impact and trauma the sexual assault had on the victim. We have already referenced the multiple crimes committed by Bain and the testimony about their impact on those victims and their families, as well as Bain’s own admissions about his actions. Although the State addressed the impact of the sexual attack on the girl, that aspect of the testimony was not emphasized in closing argument. Under these circumstances, and after our review of the entire record, we conclude the erroneous admission of brief testimony about the impact of Bain’s actions on the child was not of such a nature as to affect the jury’s assessment of punishment. See Lindsay v. State, 102 S.W.3d 223, 229 (Tex.App.-Houston [14th Dist.], 2003, pet. filed); Boston, 965 S.W.2d at 550 (<HOLDING>). We affirm the judgment. 1 . The Texas Court Holdings: 0: holding that the admission of a family photo was harmless error in light of the overwhelming evidence in support of the conviction 1: holding although admission of victim impact testimony was error it was harmless in light of strong evidence against defendant 2: holding that in light of strong evidence of guilt tainted evidence was harmless under brecht 3: holding that error from the erroneous admission of evidence was harmless in light of the overwhelming evidence of the defendants guilt 4: holding error in admission of evidence is harmless when it was merely cumulative to other evidence in the record
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regard. V. The appellant’s fifth argument is that he was denied a fair trial because several jurors failed to disclose crucial evidence and because the jury improperly considered extraneous evidence. In relation to this claim, his entire argument in his petition consisted of the following: “During voir dire, several jurors failed to disclose critical evidence, despite unambiguous questioning. Additionally, the jury looked beyond the evidence and testimony presented at trial, and thereby denied Mr. Duncan a fair trial and reliable sentence. “... It has been long-recognized that a defendant is entitled to receive truthful answers from jurors, and when a juror fails to truthfully respond during voir dire, reversible error occurs. See State v. Gilbert, 568 So.2d 876 (Ala. Crim.App.1990) (<HOLDING>); Abercrombie v. State, 574 So.2d 879 Holdings: 0: holding that because the term conviction is ambiguous to lawyers judges and laymen the claimant did not commit misconduct when she wrote she had not been convicted of felony where adjudication had been withheld 1: holding that where juror did not disclose that she had an interest in the conviction of the defendant probable prejudice is shown and the conviction must be reversed 2: holding that a venire person who knew of the defendants prior conviction of the same offense for which he was being retried could not sit as a juror 3: holding that remand for resentencing is appropriate when sentence for reversed conviction appears to have influenced trial courts sentence for the affirmed conviction 4: holding that where a juror did not disclose that she knew someone who had been sexually abused the conviction and sentence must be reversed
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have been imposed” standard applies to scoresheet errors on direct appeal). Under the “would have been imposed” standard, a sentence based on an erroneous scoresheet must be reversed unless “the appellate court is clearly convinced that the defendant would have received the same sentence notwithstanding the score-sheet error.” Anderson, 905 So.2d at 114 (quoting Sellers v. State, 578 So.2d 339, 341 (Fla. 1st DCA 1991)). Generally, when a defendant is sentenced to state prison and “[t]he presumptive sentence under a corrected scoresheet will not involve a state prison sanction, ... it cannot be said that the same sentence would have been imposed absent the error.... ” Williams v. State, 720 So.2d 590, 591 (Fla. 2d DCA 1998); see also Ray v. State, 987 So.2d 155, 156 (Fla. 1st DCA 2008) (<HOLDING>). Here, the trial court erroneously believed Holdings: 0: holding that an error was not harmless when the district court chose the lowest end of the improper sentencing range after stating that even if the court isnt correct the court believes it is necessary to sentence at this very high range 1: holding that the sentencing courts expressions that the lowest sentence within the guidelines was too se vere was sufficient to show that the lower court would have imposed a lesser sentence if it had not felt bound by the guidelines thus satisfying plain errors third prong 2: holding that where a district court clearly indicates that an alternative sentence would be identical to the sentence imposed under the guidelines any error that may attach to a defendants sentence under booker is harmless 3: holding that the trial court may not retain jurisdiction over a sentence when the defendant is sentenced under the guidelines 4: holding that when the trial court sentenced the defendant to prison under the belief that the lowest permissible sentence was a prison term but the lowest permissible sentence under a corrected scoresheet would be a nonprison sanction the court could not say that the same sentence would have been imposed had the trial court had the correct information
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that the search was constitutional because the delay did not cause a lapse in probable cause, did not unfairly prejudice the defendant, and was not done in bad faith. Id., at 714. We find this reasoning to be persuasive. The record demonstrates that the search warrant for Wolfs computer was obtained on August 20, 2007. The return of search warrant was filed on August 21, 2007, and provided a list of all the items seized from Wolfs residence, including his computer. A report dated October 27, 2007, detailed the information obtained from Wolfs computer after a forensic examination was performed. As demonstrated by the return on the search warrant, the search of Wolfs residence and seizure of his computer was completed within fourteen days of the issuance of the search warran t Cir.2005) (<HOLDING>); United States v. Hernandez, 183 F.Supp.2d Holdings: 0: holding a fivemonth delay in searching a computer did not invalidate the search because there was no showing that the delay caused a lapse in probable cause that it created prejudice to the defendant or that officers acted in bad faith 1: recognizing that a fivemonth delay weighs against the defendant 2: holding that a fivemonth delay in filing a motion to disqualify did not bar the motion where there was a reasonable explanation for the delay 3: holding the search of a computer after the warrant had expired constitutional because despite the delay probable cause for the search continued to exist 4: holding a month delay in search of a computer constitutional because probable cause continued to exist at the time of the search and no prejudice occurred
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2001 and June 2002. None of the excerpts of the letters submitted to the Court indicate if the amounts past due are derived from lack of royalty payments by Defendants. However, this is irrelevant in that the termination provision Papa John's relies upon only states three notices of default, not necessarily three notices of default for royalty payments. 3 . Because the "Without Notice” provision is at Papa John’s discretion, Papa John's may or may not terminate the franchise agreements, and the rights pursuant to such, once three notices of default occur. Once they receive three notices of breach, even if cured,. Defendants could assume that Papa John’s will rely on this particular termination provision, that they are no longer allowed to use Papa John's trade 9428, *5 (E.D.Tex.2003) (<HOLDING>). 7 . Defendants allege that Papa John’s, Holdings: 0: holding that the only fraud that could vitiate the contract is fraud that would invalidate the merger clause itself ie fraud relating to the merger clause or fraud that invalidates the entire contract including the merger clause quoting 3 corbin contracts 578 1: holding that reliance is not an element to be proven under securities fraud in indiana 2: holding that justifiable reliance is a jury question where the contract containing the merger clause was found invalid due to an antecedent fraud 3: holding that where a merger clause is included in the written contract alleged collateral promises will not be enforced through fraud because under fraud the reliance must be reasonable 4: holding that a fraud class action cannot be certified when individual reliance will be an issue
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was acting to obtain a benefit on behalf of a charitable ... organization.” U.S.S.G. § 2B1.1 cmt. 8(B). As the district court saw it and as the government sees it, Webster deserves the enhancement. He pretended to “act[ ] on behalf of a charitable ... organization,” U.S.S.G. § 2Bl.l(b)(9)(A), when he solicited personal information from the victims on behalf of fake charities. As Webster sees it, the enhancement does not apply. In his view, the commentary limits the application of the charity enhancement, and he was not acting to obtain a benefit on behalf of a charitable organization (as the commentary seems to require). As a general matter, the text of a guideline trumps commentary about it. See Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (<HOLDING>). But we need not resolve whether the Holdings: 0: recognizing the guidelines commentary is authoritative 1: holding that a sentencing guideline prevails over its commentary if the two are inconsistent 2: holding that sentencing guidelines commentary must be given controlling weight unless it violates the constitution or a federal statute or is plainly inconsistent with the guidelines itself 3: holding that commentary is not authoritative if it is inconsistent with or a plainly erroneous reading of the guideline it interprets or explains 4: holding that guidelines commentary is generally authoritative
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was acting to obtain a benefit on behalf of a charitable ... organization.” U.S.S.G. § 2B1.1 cmt. 8(B). As the district court saw it and as the government sees it, Webster deserves the enhancement. He pretended to “act[ ] on behalf of a charitable ... organization,” U.S.S.G. § 2Bl.l(b)(9)(A), when he solicited personal information from the victims on behalf of fake charities. As Webster sees it, the enhancement does not apply. In his view, the commentary limits the application of the charity enhancement, and he was not acting to obtain a benefit on behalf of a charitable organization (as the commentary seems to require). As a general matter, the text of a guideline trumps commentary about it. See Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (<HOLDING>). But we need not resolve whether the Holdings: 0: recognizing the guidelines commentary is authoritative 1: holding that a sentencing guideline prevails over its commentary if the two are inconsistent 2: holding that sentencing guidelines commentary must be given controlling weight unless it violates the constitution or a federal statute or is plainly inconsistent with the guidelines itself 3: holding that commentary is not authoritative if it is inconsistent with or a plainly erroneous reading of the guideline it interprets or explains 4: holding that guidelines commentary is generally authoritative
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a number of integers must be factored into the calculus— e.g., the nature of the information, the nature and characteristics of the supposed criminal activity, the nature and characteristics of the place to be searched, the nature of the items delineated in the warrant — and the likely endurance of the information must be gauged on that basis. See id.; see also United States v. Moscatiello, 771 F.2d 589, 597 (1st Cir.1985), vacated on other grounds, 476 U.S. 1138, 106 S.Ct. 2241, 90 L.Ed.2d 688 (1986). The longer the expected duration of the criminal activity and the longer the expected life of the items attendant to it, the more likely that a datum from the seemingly distant past will be relevant to a current investigation. In this case, all signs point to ongoing an 10th Cir.1992) (<HOLDING>). Then, too, the troopers proposed to search Holdings: 0: holding to like effect regarding laboratory equipment for the production of methamphetamine 1: holding that summary disposition was improper as there were factual issues regarding the scope and effect of a release 2: holding that settlement agreements like consent judgments are not given preclusive effect unless the parties manifest their intent to give them such effect 3: holding to like effect with respect to a standcommitted fine 4: holding to the same effect
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Co., 947 S.W.2d 908, 913-14 (Tex.App.-Dallas 1997, pet. denied), ovemiled on other grounds by Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122-23 (Tex.2001), which held that, when policy gives absolute right to settle third-party claims, courts are not permitted to “engraft any consent requirement onto [the] policy”). The court recognized a separate issue was presented on whether the insurer owed extra-contractual duties to prudently investigate and settle claims. Id. However, because the policy gave the insurer the right to settle claims, its discretion in investigating and paying claims was not contractually limited. Id. Consequently, the court held the insured had no breach of contract action against the insurer as a matter of law. See id. at 89-90; see also Dear, 947 S.W.2d at 913-15 (<HOLDING>). Zurich contended that, likewise, Methodist’s Holdings: 0: holding insured had no viable breachofcontract or negligence theories of recovery for liability insurers improper handling and settlement of thirdparty claim although he complained its actions caused him loss of business and increased costs for professional liability insurance because he was bound by terms of policy he purchased including provision vesting insurer with right to settle any claim 1: holding that insureds breach of contract suit against insurer raised a coverage issue which was not settled by insurers payment of only part of what insured was claiming in breach of contract action 2: holding that insured was not required to suffer an excess judgment before it could sue its excess insurer and primary insurer for bad faith failure to settle where it was alleged the insurers arbitrarily refused to settle and insured was required to pay 1 million in settlement to avoid near certainty of larger judgment that would exceed all available coverage 3: holding despite a reservation of rights that when the insurer provides a defense to its insured the insured has no right to interfere with the insurers control of the defense and a stipulated judgment between the insured and the injured claimant without the consent of the insurer is ineffective to impose liability upon the insurer 4: holding insured relinquished right to sue general liability insurer for breach of contract relative to insurers allegedly improper handling and payment of thirdparty claim by purchasing policy which gave insurer right to settle
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as a party from this litigation in the attached order. 7 . In the release, Smirman also took responsibility for the delay in the payment of the proceeds. After receiving the release, MetLife sent Smirman his account checkbook. 8 . As support for Plaintiff’s Brief in Opposition to Defendant’s Motion for Summary Judgment, Plaintiff submitted an expert opinion regarding standard insurance claims practices. We have read and considered the expert opinion, however we find that the expert opinion does not create a dispute of material fact in this matter. 9 . Section 8371 provides: In an action arising under an insurance policy, if tire court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (1)Award inter 104 (E.D.Pa.1992) (<HOLDING>); Coyne v. Allstate Ins. Co., 771 F.Supp. 673 Holdings: 0: holding that the alleged conduct constituting violations of the uipa and the regulations can be considered in determining whether the insurer acted in bad faith under section 8371 1: holding that courts may look to other statutes upon the same or similar subjects to define bad faith under section 8371 2: holding that although courts have inherent power to dismiss bad faith litigant 707a does not provide basis for dismissal on grounds of bad faith filing 3: holding that use of plaintiffs mark is in good faith even though other aspects of defendants behavior may have evidenced bad faith 4: holding that a bad faith claim is a tort
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because senior managers assign employees major responsibilities, performance standards, and CSFs at their discretion (id. at 15-17, 19). However, Dr. Banks concedes that evaluations and CSFs are not applied consistently between regions or between supervisors in the same regions, and that their assessments of employees are not comparable; “essentially their evaluations do not permit ‘apples to apples’ comparisons” (id. at 17-18, 27). This incomparability undermines plaintiffs claim of commonality: even if one supervisor used Allstate’s subjective employment practices “as a mask for discrimination,” that does not inexorably lead to the conclusion that any other supervisors did so. See, e.g., Morrison v. Panduit Corp., No. 03-3081, 2004 WL 3049816, at **2, 5 (7th Cir. Dec.21, 2004) (<HOLDING>). Dr. Banks’s opinion evidence does not Holdings: 0: holding that evidence did not show that vice president discriminated against employee because vice president was not involved in many of the employment decisions at issue 1: holding that three municipal flow control ordinances similar to the one here at issue discriminated against interstate commerce 2: holding white female employee lacks standing under title vii to allege injury on behalf of black applicants to employment agency who were discriminated against because of race 3: holding that a sexual assault on a female employee was of a personal nature and not directed against the employee as part of the employment relationship 4: holding that a 3a12a enhancement was appropriate for attempted murder of the president although the defendant mistakenly shot at a lookalike
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38 S.Ct. 254, 257, 62 L.Ed. 664 (1918). On appeal, the Fifth Circuit interpreted the phrase “arising under the instrument” in the declaratory judgment act to mean that the Texas courts could declare invalid only particular provisions of a will that has already been admitted to probate. Kausch, 470 F.2d at 1070. The court found that under the declaratory judgment act Texas courts “have no power to conduct an independent inquiry into the validity of the will as a testamentary instrument.” Id. Consequently, the federal court found that it lacked jurisdiction over the plaintiffs claim. Other courts have foúnd that actions to declare a will invalid under state declaratory judgment acts do not lie for various reasons. See Corron v. Corron, 40 Ohio St.3d 75, 79, 531 N.E.2d 708, 712 (1988) (<HOLDING>) (quoting Davidson v. Brate, 44 Ohio App.2d Holdings: 0: holding that where the question to be resolved in the declaratory judgment action will be decided in a pending action it is inappropriate to grant a declaratory judgment 1: holding that an action challenging the validity of a will may not be brought under ohios declaratory judgment act 2: holding that garcia applies to section 101106 but holding that a declaratory judgment action is not brought under the texas tort claims act 3: holding that the declaratory judgment act is remedial only and the party seeking declaratory relief must have an underlying cause of action 4: holding that the declaratory judgment act is a procedural device
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GDHI took simultaneous title to both the Boat and its storage location— i.e., the Real Property. The parties therefore simply implied that delivery could occur at the same time as the execution of the Dation. Any additional physical delivery of the Boat was not necessary, and the Court concludes that Sharp conveyed the Boat to GDHI when it executed the Dation (on January 5, 2012). As a result, GDHI had no notice of the voidability of the transfer until after the conveyance of the Boat. Moreover, in the Final Order, the Texas Court never restrained Sharp from alienating the Boat; in fact, the TRO, the Temporary Injunction, and the Final Order never mention the Boat. Cf. Reliant Hosp. Partners, LLC v. Cornerstone Healthcare Group Holdings, Inc., 374 S.W.3d 488, 502 (Tex.App.2012) (<HOLDING>). Rather, these orders specifically describe Holdings: 0: holding carson inapplicable where an order had the practical effect of granting an injunction 1: holding in part that the trial court abused its discretion in granting a temporary injunction in the absence of a showing that the plaintiff did not have an adequate remedy at law 2: holding that trial court did not abuse its discretion by granting such a temporary injunction 3: holding that general release must name or specifically describe parties to be discharged 4: holding that under texr civ p 683 ejvery order granting an injunction must be specific in its terms and describe in reasonable detail the act or acts to be restrained
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with cases cited by plaintiffs finding that, in light of the California legislature’s decision to create statutory damages for each violation of CIPA, no separate showing of injury aside from a violation of the privacy rights protected'by CIPA is required. See, e.g., In re Google Inc. Gmail Litig., No. 13-MD-02430-LHK, 2013 WL 5423918, at *17-18, 2013 U.S. Dist.' LEXIS 172784, at *65-67 (N.D.Cal. Sep. 26, 2013) (rejecting an argument that § 632.7 requires independent injury aside from an invasion of statutory CIPA rights); Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156, 167, 1 Cal. Rptr.3d 536 (2003) (“[A]n actionable violation of section 632 occurs the moment the surreptitious recording is made.”); Friddle v. Epstein, 16 Cal.App.4th 1649, 1661, 21 Cal.Rptr.2d 85 (1993) (<HOLDING>). This finding is bolstered by the fact that § Holdings: 0: holding that the occurrence of damages determines when a medical malpractice action accrues 1: holding that a cause of action accrues the moment the right to commence the action comes into existence 2: holding that a cause of action for breach of contract accrues at the time of the breach 3: holding that a plaintiff may recover damages under both the lanham act and the copyright act provided the copyright damages serve a purpose other than compensation 4: holding that the right to recover statutory damages accrues at the moment the privacy act was violated
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involving the bribe, Muhammad maintains that the Government failed to prove that he acted with the specific intent to commit the offense and that it failed to demonstrate that he took a “substantial step” towards completing the crime. The federal bribery statute found at 18 U.S.C. § 201(b)(2)(A) provides that a public official commits bribery when he “corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally ... in return for ... being influenced in the performance of any official act.” The language in the statute is disjunctive. In other words, a defendant violates § 201 by merely seeking or demanding a bribe, regardless of whether he accepts or even agrees to accept it. See, e.g., United States v. Gallo, 863 F.2d 185, 189 (2d Cir.1988) (<HOLDING>) (quoting United States v. Jacobs, 431 F.2d Holdings: 0: holding relevance of evidence is established by any showing however slight that the evidence makes it more or less likely that the defendant committed the crime in question 1: holding that 201b makes attempted bribery a crime and so long as a bribe is offered or promised with the requisite intent to influence any official act the crime is committed 2: holding the crime of conspiracy is committed or not before the substantive crime begins 3: holding that attempted sexual abuse is a specific intent crime 4: holding that the crime is complete when the payment is corruptly given with intent to influence the judicial officer on any matter that may by law come before him in his official capacity whether or not it ever does
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Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902). As such, it is well-established that generally a tort plaintiff is not required to proceed against all joint tortfeasors but may proceed against one, some or all of them. See Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 360 (2d Cir.2000) (citations omitted). Defendants do not articulate any interest of the Oneida Nation or the Casino which would be affected by the outcome of the claims against the other Defendants, nor is there anything in the record to suggest that any party would be prejudiced by permitting Plaintiffs to proceed against the other Defendants in the absence of the Oneida Nation and the Casino. Compare id. with Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542, 547 (2d Cir.1991) (citations omitted) (<HOLDING>). Accordingly, the Court holds that the Oneida Holdings: 0: holding that seneca nation is indispensable party to claims seeking to nullify agreement in which it has an interest 1: holding a party has no standing to appeal unless he or she is an aggrieved party an individual who is not a parent in the eyes of the law has no legal interest in the child and therefore has no standing to appeal 2: holding that an arbitration agreement enforceable against party who signed the agreement even where the other party did not sign it because generally it is enough that the party against whom the contract is sought to be enforced signs it 3: holding father waived claim that alleged de facto custodian should have been named as party in child support proceeding by failing to move to join party or to dismiss for lack of an indispensable party 4: holding that a party seeking to compel arbitration must establish the existence of an arbitration agreement and show that the claims raised fall within the scope of that agreement
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Naturalization Act (“INA”), as amended by IIRIRA. Gonzalez-Oropeza v. United States Attorney Gen., 321 F.3d 1331, 1332 (11th Cir.2003). Petitioner contends that the IJ erred in finding that he was provided proper notice of his removal proceedings because the notice to appear was not sent to his current address. He cites Matter of G-Y-R, 2001 WL 1515819, 23 I & N Dec. 181 (BIA 2001), and its progeny for the proposition that a respondent cannot be ordered removed in absentia where the Immigration and Naturalization Service (“INS”) used an old address in serving the notice to appear and failed to warn the respondent of the consequences of failing to inform the government of a change of address. Petitioner also contends that Dominguez v. U.S. Attorney Gen., 284 F.3d 1258 (11th Cir.2002) (<HOLDING>), is distinguishable from his case, in that Holdings: 0: holding that the phrase resident alien means an alien lawfully residing in the united states 1: holding that notice to an alien at the most recent address provided by the alien is legally sufficient 2: holding that the ijs failure to inform alien that he is eligible for relief from deportation constitutes due process violation where alien establishes prejudice 3: holding that the alien in that case had not established such circumstances 4: recognizing burden is on alien when alien is removable
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and waived, as indicated by his initials, reads, “I expressly do not desire to consult with either a civilian lawyer retained by me or a military lawyer appointed as my counsel without cost to me prior to questioning.” Appellant also acknowledged waiver of these rights when questioned by the military judge at trial regarding the written waiver. Furthermore, Appellant acknowledged that his civilian attorney told him not to go into questioning without him and Appellant intentionally ignored that advice. Based on Appellant’s own testimony and actions in reviewing and signing the Article 31, UCMJ, rights form at the time of the interrogation, Appellant waived any right he may have had to have his counsel notified of and be present at the interrogation. See LeMasters, 39 M.J. at 493 (<HOLDING>). The current version of M.R.E. 305(e) does not Holdings: 0: holding that defenses under rule 60b may be waived 1: holding that notice to counsel may be waived 2: holding standing cannot be waived and may thus be raised at any time 3: recognizing that immunity may be waived 4: holding that notice to supervisor is notice to city
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63 L.Ed.2d 427 (1980), cited in Envtl. Protection Info. Ctr., Inc. v. Pac. Lumber Co., 257 F.3d 1071, 1075 (9th Cir.2001). An exception to this general rule permits the prevailing party to cross-appeal from a summary judgment if “the [collateral] adverse ruling can serve as the basis for collateral estoppel in subsequent litigation.” Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 520 (9th Cir.1999). In this case, however, the determinations that Federal seeks to cross appeal will not have collateral estoppel effect in subsequent litigation because they were immaterial to the' judgment below. Envtl. Protection Info. Ctr., 257 F.3d at 1076. Moreover, Federal cannot appeal the judgment under Elec. Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 59 S.Ct. 860, 83 L.Ed. 1263 (1939) (<HOLDING>). The judgment in favor of Federal dismissed Holdings: 0: holding that there can be only one final appealable order 1: holding that a party can seek reformation of a favorable decree that discusses issues immaterial to the final outcome 2: holding that we view the evidence in the light most favorable to the prevailing party 3: holding that the evidence is viewed in the light most favorable to the nonmoving party and all doubts are resolved against the moving party 4: holding that it need not reach a decision on whether a party could prevail under buckhannon in the absence of a consent decree or a final judgment on the merits
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proceedings under state statutes prohibiting sexual, racial, religious or similar discriminatory employment practices are preempted. Most of the pertinent state court decisions are in accord with the conclusion in Vaughn that the NLRA does not preempt proceedings under state statutes prohibiting employment discrimination on such bases. See, e.g., Bald v. RCA Alascom, 569 P2d 1328 (Alas 1977), and cases there cited; Walker Mfg. Co. v. Industrial Comm., 27 Wis 2d 669, 135 NW 2d 307 (1965). In Bald, the Alaska court indicated that the NLRA is not centrally concerned with those forms of discrimination. 569 P2d at 1334; see also McDonald v. West Branch, 466 US 284, 289, 104 S Ct 1799, 80 L Ed 2d 302 (1984); Alexander v. Gardner-Denver Company, 415 US 36, 94 S Ct 1011, 39 L Ed 2d 147 (1974) (<HOLDING>). Defendants argue that Vaughn is Holdings: 0: holding that discharged black employe had right of action under title vii of civil rights act of 1964 42 usc 2000e et seq to assert discrimination claim notwithstanding arbitrators finding pursuant to collective bargaining agreement that employe was discharged for cause 1: holding that antidiscrimination rights under title vii cannot be waived by a collective bargaining agreement 2: holding that an arbitrators decision in arbitration undertaken pursuant to a collective bargaining agreement is not binding on a plaintiff who pursues title vii remedies in court 3: holding that petitioners remedy under title vii of the civil rights act was in addition to remedies available under the collective bargaining agreement in force between his employer and his union 4: holding that title vii of the civil rights act of 1964 provides the exclusive remedy for claims of employment discrimination by federal agencies
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for unlawfully possessing a firearm, an explosive, and materials for creating fraudulent identifications. Pauckert contends that his sentence was procedurally and substantively unreasonable. We have jurisdiction under 28 U.S.C. § 1291. We vacate the sentence and remand to the district court for further action. 1. The district court properly imposed a sentencing enhancement for obstruction of justice under U.S.S.G. § 3C1:1. Pauckert’s instruction to Dodge to destroy the printers that were used to create the fraudulent identification materials may be subject to more than one interpretation, but the district court did not clearly err in concluding that the instruction was given with the purpose of destroying material evidence. See United States v. Garro, 517 F.3d 1163, 1171 (9th Cir.2008) (<HOLDING>). Under § 3C1.1, Application Note 4(D), Holdings: 0: holding that factual findings in sentencing context are reviewed for clear error 1: holding that findings of fact from a bench trial are reviewed for clear error 2: holding that the district courts findings of fact when ruling on a 12b1 motion are reviewed for clear error 3: holding that district courts factual findings for purposes of obstruction enhancement are reviewed for clear error 4: holding that findings of fact are reviewed for clear error
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as a waiver of the Eleventh Amendment’s protection. Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 577, 66 S.Ct. 745, 747, 90 L.Ed. 862 (1946); Hutto v. Finney, 437 U.S. 678, 693, 98 S.Ct. 2565, 2574-75, 57 L.Ed.2d 522 (1978) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)). Here, neither the State of Alabama nor Congress has waived Eleventh Amendment immunity under §§ 1981, 1983 or 1985, and therefore, the aforementioned exceptions do not apply. Carr, 916 F.2d at 1524-25 (Exceptions to Eleventh Amendment immunity did not apply in § 1983 action, inasmuch as Congress had not abrogated Eleventh Amendment immunity in § 1983 cases and State of Alabama had not waived its immunity.); Sessions v. Rusk State Hosp., 648 F.2d 1066, 1069 (5th Cir.1981) (<HOLDING>); Fincher v. Florida Dep’t of Labor & Holdings: 0: holding that the eleventh amendment applies regardless of the nature of the relief sought 1: recognizing that section 1981 claims against a state agency are barred by the eleventh amendment 2: holding that the eleventh amendment applies in 1981 litigation 3: recognizing that claims against a state under 1981 are barred by the eleventh amendment 4: holding that the department of corrections was entitled to eleventh amendment immunity from suit under section 1981
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of Dodd-Frank delayed the effective date of Title XIV of the Act. Dodd-Frank, Pub. Law No. 111-203, § 1400(c); 124 Stat. 1376, 2136. Thus, the Dodd-Frank changes and resulting regulations are not relevant to this case. 6 . As discussed above, Dodd-Frank made changes to RESPA, including reducing this period to 30 days. Dodd-Frank, Pub. Law No. 111-203, § 1463; 124 Stat. 1376, 2184. As the QWR in this case was sent in January of 2011 and Dodd-Frank was enacted in July of 2010, one might think that Chase should have responded within 30, rather than 60, days. However, § 1400(c) of Dodd-Frank delayed the effective date of Title XIV of the Act and with it, this 60-day to 30-day change. Dodd-Frank, cv-13622, 2011 WL 5375375, *2-3, 2011 U.S. Dist. LEXIS 128455, *8 (E.D.Mich. Nov. 7, 2011) (<HOLDING>). In any case, decisions from other district Holdings: 0: holding that unable to respond constitutes no response 1: holding that plaintiffs failure to respond to argument warranted dismissal with prejudice 2: holding that noaction clause barred suit against servicer for negligence 3: holding that a pro se party must be advised of consequences of failing to respond to a dispositive motion including an explanation that the failure to respond may result in the district court granting the motion and dismissing the case 4: holding that failure to respond in accord with 2605e2a b or c is a single respa violation because the statute provides a servicer with disjunctive response options not that a servicer has unfettered discretion in how to respond
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CIT Group/Factoring Mfr. Hanover, Inc. v. Srour (In re Srour), 138 B.R. 413 (Bankr.S.D.N.Y.1992)). Moreover, the debtor must have more than a mere derivative interest in the property in question because the term “property of the debtor,” as expressed in 11 U.S.C. § 727(a)(2)(A), has reference to property in which the debtor has a direct proprietary interest. In re Colodner, 147 B.R. at 93 (citing MCorp. Management Solutions, Inc., 901 F.2d at 841) (Congress intended to limit the reach of § 727(a)(2)(A) only to those transfers of property in which the debtor has a direct proprietary interest). In this case, the property transferred was not property of the debtor, but rather property of the LLC. See BPS Guard Serv., Inc. v. Myrick (In re Myrick), 172 B.R. 633, 638 (Bankr.D.Neb.1994) (<HOLDING>); In re Srour, 138 B.R. at 419 (stating it does Holdings: 0: holding that unless a shareholder can show personal cause of action and personal injury claims for fraud and breach of fiduciary duty belong to the corporation and not the shareholder 1: holding that shareholder could not prevail on breachoffiduciaryduty claim against other shareholder because alleged mishandling of funds did not result in any injury to the corporation 2: holding that a lawsuit against a corporation that purchased assets from a bankrupt is not a claim against the debtor 3: holding that 727a2a does not apply to the transfer of the assets of a corporation in which the debtor is a shareholder 4: holding that sole shareholder could recover on behalf of company but not in individual capacity for former shareholder and officers misappropriation of corporate assets
|
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(sanctions imposed upon revocation are to be “served consecutively to any other term of imprisonment imposed for any criminal conduct that is the basis of the revocation”); U.S.S.G. § 5G1.3(e) (p.s.) (recognizing that a sentence for an instant offense should “run consecutively to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense”). Thus, the policy favoring imposition of consecutive sentences in cases of violation of release, as expressed in Chapters 5 and 7 of the Sentencing Guidelines, governs. A contrary result illogically would rest the priority of consecutive sentences upon the order in which the sentences were imposed. Accord United States v. Glasener, 981 F.2d 973, 975-76 (8th Cir.1992) (<HOLDING>). AFFIRMED. 1 . The district court added three Holdings: 0: holding that an identical or nearly identical limitation of liability clause was valid and enforceable under georgia law 1: holding that an order was final for these identical reasons 2: holding in nearly identical situation that the mere order in which the sentences were imposed does not alter the result that is required 3: recognizing that the duty arises not from the terms of the insurance contract but from an obligation imposed in law as a result of the special relationship 4: holding that 10113aa does not alter the requirement that the property in question be real property in order for the antimodification provision to apply
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jet airplanes, and from the period of steam and gas powered energy to that of atom propulsion, we should keep pace with the times and apply new and modern principles, better suited for our changed and changing world. We answer the argument by pointing out that we are not convinced that the rule we are urged to adopt would better serve the legal needs of this new day, and even if we were we would be most hesitant to promulgate such rules to replace doctrine long established. This would seem to be more properly for the [Legislature. Id. at 334, 378 P.2d at 373-74. This is a classic example of a policy discussion, global and general in nature directed at a legal duty, rather than a proximate cause discussion of the specific facts of the case. See Leyba, 120 N.M. at 771, 907 P.2d at 175 (<HOLDING>); Torres, 119 N.M. at 612, 894 P.2d at 389 Holdings: 0: holding that in north carolina an insurer properly determines whether it has a duty to defend by applying what is generally known as the comparison test under that analysis only two documents are pertinent the insurance policy and the complaint 1: holding that an insurer can normally dispute coverage even after a court determines there is a duty to defend 2: recognizing implied duty to market 3: holding that the amount of coverage determines whether a vehicle is underinsured 4: recognizing that policy determines duty
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Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 2752, 97 L.Ed.2d 90 (1987). Since the Court could not dismiss Count I on the grounds that the government had failed to allege means necessary to state a violation of § 371 there are no grounds to dismiss because the listed “means and methods” are laid out vaguely. The indictment does state the essential elements of the offense, does allege at least one overt act in furtherance of the conspiracy, and therefore serves to apprise defendants of what they must be prepared to defend. See United States v. Treadwell, 760 F.2d 327, 337 (D.C.Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986). No further allegations are required in a § 371 indictment. United States v. Tarvers, 833 F.2d 1068, 1075 (1st Cir.1987) (<HOLDING>). The indictment puts defendants on notice that Holdings: 0: holding that where the parties fail to reach an agreement as to the character nature or type of release to be used an essential element of the agreement is not established 1: recognizing requirement that defendant conspired to commit an overt act in state in furtherance of the conspiracy 2: holding criminal conspiracy is sustained where the commonwealth establishes the defendant entered into an agreement to commit or aid in an unlawful act with another person with a shared criminal intent and an overt act was done in furtherance of the conspiracy a coconspirator may commit the overt act and conspirators are liable for acts of the coconspirators committed in furtherance of the conspiracy 3: holding that a conspiracy is an agreement to commit an illegal act into which the defendant knowingly and voluntary enters and which is manifested by an overt act 4: holding that the essential elements of a 371 indict ment are an agreement to pursue an unlawful object accompanied by an overt act in furtherance of the agreement
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explicit requirements — the “necessity ... of private enforcement” of the public interest. Awarding attorney fees for litigation when those rights could have been vindicated by reasonable efforts short of litigation does not advance that objective and encourages lawsuits that are more opportunistic than authentically for the public good. Lengthy prelitigation negotiations are not required ... but a plaintiff must at least notify the defendant of its grievances and proposed remedies and give the defendant the opportunity to meet its demands within a reasonable time. What constitutes a “reasonable” time will depend on the context. Id. at 577, 21 Cal.Rptr.3d 331, 101 P.3d 140; see also Tipton-Whittingham v. City of Los Angeles, 34 Cal.4th 604, 608, 21 Cal.Rptr.3d 371, 101 P.3d 174 (2004) (<HOLDING>); Grimsley v. Bd. of Supervisors, 169 Holdings: 0: holding that the defendant was only permitted to recover attorney fees as an item of special damages with respect to the underlying action in which the defendant was sued and was not permitted to recover attorney fees incurred in the malpractice portion of the case as damages 1: holding that to recover private attorney general fees a plaintiff must reasonably attempt to settle before litigation 2: holding private attorney general fees will not be awarded unless the plaintiff first attempts to resolve the matter without litigation and attendant expense 3: holding that a successful plaintiff in a legal malpractice action may recover initial fees a plaintiff pays or agrees to pay an attorney for legal services that were negligently performed and corrective fees incurred by the plaintiff for work performed to correct the problem caused by the negligent lawyer but not litigation fees which are legal fees paid by the plaintiff to prosecute the malpractice action against the offending lawyer 4: recognizing the general rule that a claimant in a malicious prosecution or abuse of process action can recover attorney fees incurred in defending against the prior wrongful litigation but cannot recover attorney fees incurred in bringing the malicious prosecution or abuse of process action itself and applying the same rule where the abuse of process claim is brought as a counterclaim to wrongful litigation rather than as a later separate action
|
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those seven products of the snap action claims. First, we note that proof of infringement by collateral estoppel is only appropriate in limited circumstances, where it is shown that a close identity exists between the relevant features of the accused device and the device previously determined to be infringing. See Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1324 (Fed.Cir.2008) (noting that claim preclusion does not apply with respect to infringement unless the accused device and the device previously held infringing are “essentially the same,” meaning that the differences between them are merely “col-orable” or “unrelated to the limitations in the claim of the patent” (citations omitted)); see also Del Mar Avionics, Inc., v. Quinton Instrument Co., 836 F.2d 1320, 1324 (Fed.Cir.1987) (<HOLDING>); Young Engineers, Inc. v. Int’l Trade Comm’n, Holdings: 0: holding that preclusion rules apply in section 1983 actions 1: recognizing that 2254d by its own terms applies only to claims previously adjudicated on the merits in statecourt proceedings 2: holding that claim preclusion did not apply because a device not previously before the court and shown to differ from those structures previously litigated requires a determination on its own facts 3: holding that the district court did not abuse its discretion in declining to apply laches where the only prejudice shown by the government was attributable to its own delay rather than to that of the movant 4: holding that preclusion rules apply in 1983 actions
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complained of on appeal pursuant to Pa.R.A.P. 1925(b). 5 . We note the trial court found it significant that the jury’s verdict did not include any award for past medical expenses. Seiwell argues that the jury verdict’s failure to specify an award for past medical bills should not be dispositive. Appellant’s Brief at 12. Seiwell contends that ”[t]he fact a plaintiff decides not to include a specific request for an award of damages for these conditional [Medicare] payments does not change the nature of their obligation or ultimately the obligation of the defendant (or their liability insurance carrier).” Id. at 12-13. We recognize that the allocation of the verdict award may serve as an adequate basis for denying Seiwell's motion. See Fanning v. Davne, 795 A.2d 388, 397 (Pa.Super.2002) (<HOLDING>), appeal denied, 573 Pa. 697, 825 A.2d 1261 Holdings: 0: holding proper basis for award of fees 1: holding that to offset a jurys damage award a separate thirdparty insurance award must cover the same loss which served as the basis for the jury award 2: holding that the emotional benefits to the parents resulting from the childs birth could be applied to offset any damage award 3: holding that an attorneys fees award is not appealable until the amount of the award is set 4: holding damage award immaterial when no liability
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individual litigation.” Id. To ensure that (b)(2) classes are cohesive in nature, the Third Circuit has explicitly “committed to the district court the discretion to deny certification in Rule 23(b)(2) cases in the presence of ‘disparate factual circumstances.’ ” Geraghty v. United States Parole Commission, 719 F.2d 1199, 1205 (3d Cir.1983) (citing Carter v. Butz, 479 F.2d 1084, 1089 (3d Cir.1973)). In Santiago, the court held that “court[s] should be more hesitant in accepting a (b)(2) suit which contains significant individual issues than it would under subsection 23(b)(3).” Santiago, 72 F.R.D. at 628; see also Society for Individual Rights, Inc. v. Hampton, 528 F.2d 905, 906, aff'd in part, 528 F.2d 905 (9th Cir. 1975); Rice v. City of Philadelphia, 66 F.R.D. 17, 20 (E.D.Pa.1974) (<HOLDING>). The Santiago court identified two reasons as Holdings: 0: holding that this is the rule in virtually all circuits 1: holding that rule 23b2 calls for injunction as to all class members or to none of them and does not authorize class certification when each class member would be entitled to an individualized award of monetary damages 2: holding prior order was interlocutory and subject to change at any time because all claims not yet litigated 3: holding that a case should not proceed as a b2 action where virtually all of the issues would have to be litigated individually in order to determine whether a particular alleged class member was entitled to any damages at all 4: holding that all matters litigated or which could have been litigated in al foreclosure action are forever at rest
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to demonstrate that she is a resident of Alabama. One must be a resident of Alabama in order to serve as an administrator of an estate here; § 43-2-22, Ala.Code 1975, provides, in part: “(a) No person must be deemed a fit person to serve as executor who is under the age of 19 years, or who has been convicted of an infamous crime, or who, from intemperance, improvidence or ■ want of understanding, is incompetent to discharge the duties of the trust. Nor shall any nonresident of the state be appointed as administrator unless he is at the time executor or administrator of the same estate in some other state or territory or jurisdiction, duly qualified under the laws of that jurisdiction.” (Emphasis added.) But see § 43-2-191, Ala.Code 1975, and Ex parte Adams, 168 So.3d 40, 45 (Ala.2014) (<HOLDING>). On June 3, 2014, the same day on which the Holdings: 0: holding that plea in bar may be based only on grounds set forth in statute 1: holding that oneyear limitations period set forth in 2255 is not a jurisdictional bar and is thus subject to equitable tolling 2: holding that the specific date restriction set forth in 541a5 controls and that 1306a1 does not eliminate that restriction 3: holding that it is generally sufficient that an indictment set forth the offense in the words of the statute itself 4: holding that an executor named in a will is not subject to the nonresident restriction set forth in 43222
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the results of the investigation conducted by the Conference, into the factual findings that formed the basis for .the resolution, and into the Conference’s decision to remove [the pastor and his son] from [the church]. ... For these reasons, the trial court did not have subject-matter jurisdiction over [the pastor’s] claims against [the lay member] by virtue of the First and Fourteenth Amendments to the United States Constitution.” 103 So.3d at 72 (emphasis added). In the present case, the plaintiffs’ negligent hiring, supervision, and retention claims are intertwined with the petitioners’ investigations and decisions concerning Reverend Greer’s employment and discipline. As set out above, the basis for the plaintiffs’ claims deriv Omaha, 244 Neb. 715, 508 N.W.2d 907, 911-13 (1993) (<HOLDING>); Wisconsin: L.L.N. v. Clauder, 209 Wis.2d 674, Holdings: 0: holding that first amendment barred child victim of sexual abuse by priest from bringing breach of fiduciary duty claim against priest church official and church 1: holding that first amendment barred consideration of negligent supervision claim against diocese for sexual relationship between adult parishioner and priest while the priest was counseling the parishioner in his position as a hospital chaplain 2: holding that first amendment barred adult parishioner who engaged in sexual relationship with priest during the course of pastoral counseling from bringing intentional infliction of emotional distress negligence and breach of fiduciary duty claims 3: holding that first amendment barred negligent supervision claim against a church regarding sexual relationship between adult parishioner and priest during the course of a marital counseling 4: holding that claim of breach of fiduciary duty against pastor for sexual relationship with parishioner during the course of pastoral counseling was tantamount to impermissible clergy malpractice claim
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excepted from discharge any debts "created by ... fraud, embezzlement, misappropriation, or defalcation while acting as an officer, or in any fiduciary capacity.” Ch. 541, § 17, 30 Stat. 544, 550-51 (repealed 1978). 3 . See also In re Barton, 465 F.Supp. 918, 923 (S.D.N.Y.1979) ("The cases under section 17(a)(4) [of the Bankruptcy Act of 1898] regarding attorneys as fiduciaries are united in their prohibition of attorney conduct that affects funds or other property [entrusted to the attorney, under a retained claim of equitable title by the client.”); In re Schulman, 196 B.R. 688, 698 (Bankr.S.D.N.Y.1996) (noting that debtor-attorney’s conversion of client’s money is fiduciary fraud (citing In re Kane, 48 F.2d 96 (2d Cir.1931))); In re McDowell, 162 B.R. 136, 139 (Bankr.N.D.Ohio 1993) (<HOLDING>); Kwiat v. Doucette, 81 B.R. 184, 188-89 Holdings: 0: holding a duty of care without more insufficient to satisfy the fiduciary relationship element of 523a4 the federal courts adopting this narrow interpretation of fiduciary for purposes of the bankruptcy code gen erally hold that an express or technical trust is necessary to trigger the defalcation provision of 523a4 1: holding that a statutorilyimposed fiduciary obligation created an express trust fiduciary relationship for purposes of 523a4 2: holding that an attorney is a fiduciary under section 523a4 3: holding general fiduciary duties of confidence trust loyalty and good faith insufficient to establish the necessary fiduciary relationship for purposes of 523a4 4: holding that jury verdict in prior state court fraud action including finding that debtor willfully breached fiduciary duty had preclusive effect on courts determination of nondischargeability based on defalcation while acting in a fiduciary capacity under 523a4
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a final judgment that U.S. D.I.D. is liable on the injunction bond (absent future proceedings between the parties), the Court will and hereby does grant Plaintiffs request and stays any release of funds for fourteen days. Accordingly, on January 22, 2013, the Clerk of the Court shall issue a check payable to Windstream Communications, Inc., in the amount of $227,271.92, which is to be drawn from the $314,672.80 deposited by U.S. D.I.D. in the Court’s registry, and shall mail that check to Windstream’s counsel, Brian J. Butler, Esq., at Bond, Schoeneck & King, PLLC, One Lincoln Center, Syracuse, N.Y. 13202. On that same date, the Clerk of the Court shall issue a check payable to U.S. D.I.D. Corporation for the remaining $87,400.88 deposited by U.S. D.I.D. in the C 80 n. 5 (3d Cir.1987) (<HOLDING>); Pace v. Ross, No. 78 Civ. 2515, 1981 U.S. Holdings: 0: holding that court had no supplemental jurisdiction over claim by shareholder for breach of merger agreement that was the subject of the dispute between the merger partners over which the district court had subject matter jurisdiction 1: holding that the district court possessed ancillary jurisdiction over a dispute concerning the disposition of an injunction bond 2: holding that nonliable party can only be subjected to those provisions of an injunction that are minor and ancillary 3: holding that the failure of the applicant to file a bond before the issuance of the temporary injunction renders the injunction void ab initio 4: holding that the district court retained jurisdiction to resolve a dispute over an injunction bond even where the underlying dispute had itself been dismissed for lack of subjectmatter jurisdiction
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See Arkansas Supreme Court Rule l-2(a)(6). The Commission’s Rule of Procedure 12 addresses the procedure by which the Arkansas Supreme Court reviews Commission decisions. Specifically, Rule 12(F) provides that “The Supreme Court may bring up for review any action taken upon any complaint filed with the Commission, and may also bring up for review a case in which the Commission has failed to act.” Rules of Procedure of the Arkansas Judicial Discipline and Disability Comm’n 12(F) (emphasis supplied). Under Arkansas law, the Arkansas Supreme Court has jurisdiction to hear constitutional challenges to a disciplinary matter so long as these issues were raised before the Commission. See Huffman v. Arkansas Judicial Discipline and Disability Comm’n, 344 Ark. 274, 42 S.W.3d 386, 390 (2001) (<HOLDING>). Here, the Commission held a probable cause Holdings: 0: holding that a claim including a constitutional claim must have been asserted to the trial court to be raised on appeal 1: holding that a judges constitutional challenges to commissions admonition would have been considered by the arkansas supreme court had such matters been on the record 2: holding if the admonition would have cured the prejudice there is no necessity for a mistrial even if the appellant declined to request an admonition 3: holding that only materials which were included in the pretrial record and that would have been admissible evidence may be considered 4: holding that the court had an adequate record to grant the defendants motion for summary judgment because the relevant evidence would have been in plaintiffs possession
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benefit. Hartbarger argues that nothing he did is encompassed by any of the categories in that list. We see no reason why the list should be deemed inclusive of all reasons for which an employee might be disciplined or terminated, or indeed, why the list should preclude discharge for no reason at all. There is no statement in the yellow handbook to the effect that the handbook reflects “established procedure regarding suspension of problem employees and termination for those who cannot conform to Company Policy,” as there was in the handbook at issue in Lukoski, 106 N.M. at 666, 748 P.2d at 509. Neither is there anything suggesting “that the enumerated conduct was the only basis for dismissal, and the rules were consistent with a termination-at-will policy.” Rowe, 473 N.W.2d at 275 (<HOLDING>). We find that there is no language in the Holdings: 0: holding that although there was evidence of discrimination based on race there was insufficient evidence to support a finding of constructive discharge 1: holding evidence insufficient to support conviction of attempted possession of a prohibited weapon 2: holding evidence insufficient to support finding of implied contract 3: holding purely hearsay evidence that defendant was aware of requirement to report was insufficient to support finding of willful violation 4: holding evidence legally insufficient
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in a limited fashion); Takacs v. Engle, 768 F.2d 122, 124 (6th Cir.1985) (“Coleman’s harmless error analysis remains good law”). Because we cannot conclude that the denial of counsel at the preliminary hearing necessarily undermined the entire criminal proceeding, we will apply a harmless error analysis in this case. 4. We now turn to the salient question of whether the denial of Ditch’s right to counsel at his preliminary hearing was harmless error. To determine whether constitutional error in a habeas case was harmless, we must decide whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see also Hassine v. Zimmerman, 160 F.3d 941, 953 (3d Cir.1998) (<HOLDING>). In making the harmless error determination, Holdings: 0: holding that in order to conclude that federal constitutional error is harmless court must find that error harmless beyond a reasonable doubt 1: holding that a federal habeas court performing a harmless error inquiry on collateral review must employ the standard for harmless error articulated in brecht even if the state courts have never reviewed the error on direct appeal 2: holding that any error was harmless and thus not plain error 3: recognizing that where the error involved defies analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless error analysis then the error will not be proven harmless beyond a reasonable doubt 4: holding exclusion was harmless error
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the parties, the plain, clear meaning of its terms must be given effect, and ‘the parties must be legally presumed to have intended what is plainly and clearly set out.’ Camp v. Milam, 201 Ala. 12, 16, 277 So.2d 95, 98 (1973). Accord, Financial Investment Corp. v. Tukabatchee Area Council, Inc., Boy Scouts of America, 353 So.2d 1389 (Ala.1977). The court cannot look beyond the ‘four corners of the grant to construe its terms unless the court determines that the language or its meaning is ambiguous.’ Camp, supra.’ ” Kerrigan v. Sherrer, 535 So.2d 74, 75 (Ala.1988). We conclude that the document creating the easement in this case unambiguously created a nonexclusive easement and that the extrinsic evidence regarding the intent of the grantor and the grantee was not admissible. Id. at 75 (<HOLDING>). Therefore, the judgment of the trial court is Holdings: 0: holding that the trial court erred in considering the intent of the parties when the document creating the easement was unambiguous 1: holding that at summary judgment hearing trial court erred by considering theory not raised in the pleadings 2: holding that when a contract is unambiguous the court will enforce the plain meaning of the contract as the intention of the parties 3: holding that the governor erred in considering evidence that was not before the board 4: holding that trial court erred in considering pro se motion for new trial filed when defendant was represented by counsel
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[
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a prisoner must surmount on 7 (4th Cir.), cert. denied,-U.S.-, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003) ("We emphasize that we do not require that all Rule 60(b) motions be treated as successive applications; instead, the proper treatment of the motion depends on the nature of the claims presented.”); Dunlap v. Litscher, 301 F.3d 873, 876 (7th Cir.2002) (allowing the use of Rule 60(b) to reopen previous habeas cases as long as the substance of the using a Rule 60(b) motion to set aside the denial of habeas, but has expressly declined to decide whether such Rule 60(b) motions are always successive habeas petitions. Hess v. Cockrell, 281 F.3d 212, 215 (5th Cir.2002). The position of the Third Circuit is not clear. See United States v. Edwards, 309 F.3d 110, 113 (3d Cir.2002) (per curiam) (<HOLDING>). 4 . Harris concedes in his brief that he had Holdings: 0: holding that motion for reconsideration would be construed not as a rule 60b motion but rather as an unauthorized successive motion under 2255 which the district court may have been without jurisdiction to consider 1: holding that a certificate of appealability is unnecessary where a district court dismisses a rule 60b motion as an unauthorized successive habeas motion 2: holding without extended discussion that even if the district court should have construed the petitioners motion under 18 usc 3582c2 as a rule 60b motion the court would nonetheless have had to recharacterize the rule 60b motion as an sshp 3: holding that motion filed under fedrcivp 60b properly construed as successive 2255 motion 4: holding that the court did not have jurisdiction to consider an argument not presented to the board in a motion for reconsideration
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preempted and could not be removed from state court); Shafii 83 F.3d at 568-70 (similar). Second, Hernandez also alleges that Conriv promised that if he left the union, he “would continue to receive all of the benefits that he had been receiving as a union member,” and that Conriv breached the contract by “failing to pay [him] according to the agreement.” As with Hernandez’s other breach of contract claims, this is a state law breach of contract claim, indicating that it is not preempted and not removable. See Livadas, 512 U.S. at 123-24, 114 S.Ct. at 2078 (“it is the legal character of a claim, as independent of rights created under the collective-bargaining agreement, that decides whether a state cause of action may go forward”);' Caterpillar, 482 U.S. at 388-89, 107 S.Ct. at 2427-28 (<HOLDING>); Derrico v. Sheehan Emergency Hospital, 844 Holdings: 0: holding that an employee may sue for breach of a collective bargaining agreement without the union 1: holding that union members suit based on contract that was independent of a collective bargaining agreement was not preempted and not removable 2: holding section 301 preempted plaintiffs claim for tortious interference with contract because that claim would require interpretation of a collective bargaining agreement 3: holding union members state law claims for defamation against union preempted 4: holding that union members had standing to bring rico claims for reduced compensation under collective bargaining agreement
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actions are not discretionary and even define what a ministerial action is, the key to whether official immunity is applicable is whether the defendant has proven that they are a public employee and that the allegedly tortious acts were discretionary. 5 . The Plaintiffs assert that Aumua failed to follow Grain Valley Policies and the "Emergency Guidelines for Schools and Childcare Facilities” promulgated by the Missouri Department of Health and Senior Services. 6 . We also note that a wealth of case law has established that government employees providing medical treatment in non-emergency situations are not entitled to official immunity regardless of whether any rules, policies, orders, or regulations were violated. See Thomas v. Brandt, 325 S.W.3d 481, 484 (Mo.App. E.D.2010) (<HOLDING>); State ex rel. Eli Lilly & Co. v. Gaertner, Holdings: 0: holding nurses were not entitled to official immunity where it was alleged that they failed to follow orders for a patients care given to them by a doctor 1: holding that defendants were entitled to official immunity and not addressing the merits 2: holding that emergency medical technicians and paramedics were not entitled to official immunity for their actions related to the treatment of patients in nonemergency situations 3: holding that because a city inspector was not entitled to official immunity the city was not entitled to vicarious official immunity 4: holding that patients who were denied medical treatment on nonemergency basis had standing to bring antitrust action against medical center
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imprisonment, below the 24-month sentence recommended by Probation. II Federal Rule of Criminal Procedure 11 prohibits “[t]he court” from participating in plea discussions. Fed.R.Crim.P. 11(c)(1). The Federal Rules broadly define “[c]ourt” to “mean[ ] a federal judge performing functions authorized by law,” Fed.R.Crim.P. 1(b)(2), a definition which expressly includes “a magistrate judge” executing' his or her legal duty, Fed. R.Crim.P. 1(b)(3)(B). While Rule 11(c)(1) appears to prohibit any form of judicial participation in the plea bargaining process, our “court previously approved the participation by a settlement judge in plea negotiations.” United States v. Scolari, 72 F.3d 751, 753 (9th Cir.1995); see United States v. Torres, 999 F.2d 376, 377-78 (9th Cir.1993) (per curiam) (<HOLDING>). Torres and Scolari did not address, much less Holdings: 0: holding that no rule 11 violation occurred when the parties hammered out their agreement with the assistance of a settlement judge in accordance with the thenexisting criminal case settlement procedures for the southern district of california 1: holding that a settlement agreement is not a court order and therefore a violation of the settlement agreement would not subject a party to contempt 2: holding that the plaintiffs lawsuit which was filed despite a general release in the parties settlement agreement constituted a material breach of the settlement agreement 3: holding that the appellants appeal of the jurys verdict was a material breach of the no appeals provision in the parties settlement agreement 4: holding that because the alleged settlement was never approved by the court under rule 9019 the settlement agreement was unenforceable
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Id. We found that the child’s credibility “became increasingly unimpeachable as each adult added his or her personal eloquence, maturity, emotion, and professionalism to [the child’s] out-of-court statements,” so that the “presumption of innocence was overcome long before [Stone] got to the stand.” Id. at 540. Stone is distinguishable from this case. Here, C.S.’s statements were repeated by Douglas, Callen, and Renz, and the videotaped interview with Detective McClain was played. However, C.S. was the first witness to testify and was subject to cross examination. Moreover, Douglas, Callen, and Renz’s testimony was brief, consistent with, and did not elaborate upon C.S.’s testimony. We conclude that any error was harmless. See, e.g., Craig v. State, 630 N.E.2d 207, 211-212 (Ind.1994) (<HOLDING>); McGrew v. State, 673 N.E.2d 787, 796 Holdings: 0: holding that the improper admission of hearsay testimony from two witnesses whose testimony was brief and consistent with the victims testimony did not constitute drumbeat repetition of the victims statements 1: holding that causal nexus did not exist where there was no evidence that the disclosure had an impact on the testimony of witnesses 2: holding that the impact upon the victims is relevant to circumstances of the crime 3: holding harmless the improper admission of a social workers hearsay testimony concerning a childs report of sexual abuse where the credibility of the childs testimony was supported by other witnesses 4: holding that the improper admission of hearsay testimony of two witnesses that confirmed but did not elaborate upon the victims testimony would have had only minor impact on the jury because there was little to undermine the victims credibility
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Washington state prisoner Craig F. Weighall appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a grant of summary judgment. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004). We affirm. The district court properly granted summary judgment because Weighall did not raise a genuine issue of material fact as to whether the defendants’ chosen course of treatment of his amputation site was medically unacceptable. See id. at 1058 (<HOLDING>). AFFIRMED. ** This disposition is not Holdings: 0: holding that a difference of medical opinion was insufficient as a matter of law to establish deliberate indifference 1: holding that deliberate indifference to a serious medical need establishes an eighth amendment violation 2: holding that a sentence of incarceration would constitute deliberate indifference to defendants medical needs 3: holding that a difference of opinion about the best course of medical treatment does not amount to deliberate indifference 4: holding that disagreement with a doctors judgment does not support a claim of deliberate indifference
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failed to request a jury shuffle thereafter, the court of criminal appeals reversed, holding appellant had waived any “claim that his shuffle improperly included persons who did not ultimately sit on the jury panel.” Sanders v. State, 942 S.W.2d 3, 5 (Tex.Crim.App. 1997) (hereinafter “Sanders II”). Accordingly, the court remanded the case to this Court to address appellant’s remaining points of error. In his original brief to this Court, appellant raised thirteen points of error. On remand, he filed a brief containing four points of error — two from the original brief and two new points of error. The State contends that neither the rules of appellate procedure nor case law permit the raising of new points of error on remand. See Theus v. State, 863 S.W.2d 489, 491 (Tex.Crim.App.1993) (<HOLDING>); see also Theus v. State, 874 S.W.2d 121, 126 Holdings: 0: holding that the laterserved defendants had thirty days from the date of service on them to file a notice of removal with the unanimous consent of their codefendants even though the firstserved codefendants did not file a notice of removal within thirty days of service 1: holding that appellant is not entitled to file new brief unless issue is raised by court of criminal appeals 2: holding that a party waives remand on the basis of a procedural defect by filing a motion to remand more than thirty days after the case is removed 3: holding that california supreme courts denial of habeas petition becomes final thirty days after filing 4: holding that remand from texas court of criminal appeals was equivalent to filing transcript and statement of facts thereby giving parties thirty days to file a brief
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the possibility that the appointed attorney may appear in court before the judge who appointed him.” Id. at 677 n. 14, 108 S.Ct. 2597. This history is directly relevant to our analysis. In context, the appointment of defense counsel for indigent criminal defendants would seem to be a necessary step for judges to take in order to provide for fair process. That rationale applies to the appointment of interim United States Attorneys with equal force. It is in keeping with preserving the institutional integrity of the judiciary that judges, faced with an indefinite vacancy in the office of United States Attorney, seek out a competent lawyer to represent the government. Cf. Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787, 800-01, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) (<HOLDING>). Like judges’ participation in the Sentencing Holdings: 0: holding unconstitutional a statute which prohibited courts from using criminal contempt proceedings to enforce domestic violence restraining orders and which required that all such prosecutorial decisions be made by the executive branch 1: holding that when the executive branch defaults a district court has the authority to appoint a prosecutor for contempt proceedings in order to preserve respect for the judicial system itself 2: holding in a patent case that when the plaintiff brought the suit in federal district court it submitted itself to the jurisdiction of the court with respect to all the issues embraced in the suit including those pertaining to the counterclaim of the defendants 3: holding order of contempt sentence without statutory opportunity for appeal was in error but nevertheless involved a judicial act subject to judicial immunity 4: holding that a civil contempt defendant has a right to a jury trial when the act of contempt was not committed in the presence of the court and when the incarceration is in part punitive
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courts have uniformly held that state agencies are not “persons” for purposes of § 1983. See Cronen v. Texas Dep’t of Human Serv., 977 F.2d 934, 936 (5th Cir.1992); Kroll v. Board of Trustees, 934 F.2d 904, 910 n.. 7 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 377, 116 L.Ed.2d 329 (1991); Manning v. South Carolina Dep’t of Highway and Pub. Transp., 914 F.2d 44, 48 (4th Cir. 1990); Norfleet ex rel. Norfleet v. Arkansas Dep’t of Human Serv., 796 F.Supp. 1194, 1197 (E.D.Ark.1992); Chrissy F. ex rel. Medley v. Mississippi Dep’t of Pub. Welfare, 780 F.Supp. 1104, 1116 (S.D.Miss.1991); Reiger v. Kansas Pub. Employees Retirement Sys., 755 F.Supp. 360, 361 (D.Kan.1990); Croft v. Harder, 730 F.Supp. 342, 348 (D.Kan.1989); cf. Kaimowitz v. Board of Trustees, 951 F.2d 765, 767 (7th Cir.1991) (<HOLDING>); Barket, Levy & Fine, 948 F.2d at 1086 Holdings: 0: holding that a state university is not a person within the meaning of 1983 and therefore is not subject to suits brought under 1983 1: holding that a state is not a person within the meaning of 1983 2: holding state university is not a person under 1983 3: holding state is not a proper defendant under 1983 4: holding that a state is not a person under 42 usc 1983
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Litig., 503 F.Supp.2d 666, 678 (S.D.N.Y.2007) ("In each of the cases in which the Second Circuit has employed a materialization of the risk analysis, it has considered a particular risk that was allegedly concealed by the defendant’s actions and which then materialized to cause a market loss.”) (citing cases). 85 . Catton, 2006 WL 27470, at *5 (quoting In re IPO, 2005 WL 1529659, at *6). Accord Lentell, 396 F.3d at 175 n. 4 (noting that corrective disclosures "reveal to the market the falsity of the prior [statements]”). 86 . In re eSpeed, Inc. Sec. Litig., 457 F.Supp.2d 266, 297 (S.D.N.Y.2006) (citations omitted). 87 . In re Winstar Commc'ns, Nos. 01 Civ. 3014, 01 Civ. 11522, 2006 WL 473885, at *14 (S.D.N.Y. Feb.27, 2006). 88 . 544 U.S. at 342-43, 125 S.Ct. 1627 (emphasis in original) (<HOLDING>). 89 . Miles I, 471 F.3d at 43 (quoting DeMaria Holdings: 0: holding that loss of an arm includes loss of the hand 1: holding that the basic elements of section 10b and rule 10b5 claims are 1 a material misrepresentation or omission 2 scienter ie a wrongful state of mind 3 a connection with the purchase or sale of a security 4 reliance often referred to in cases involving public securities markets fraudonthemarket cases as transaction causation 5 economic loss and 6 loss causation ie a causal connection between the material misrepresentation and the loss internal citations omitted 2: holding that securities fraud plaintiffs do not have to prove loss causation to obtain class certification 3: holding that plaintiffs failed to plead loss causation where their only allegation was the payment of artificially inflated prices for defendants securities and their complaint failed to provide defendants with notice of what plaintiffs relevant economic loss might be or of what the causal connection might be between that loss and the alleged misrepresentation at issue 4: holding that the loss of a contract failed to constitute ascertainable loss under cutpa
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Hamlet, 312 N.C. 162, 175, 321 S.E.2d 837, 846 (1984). A third type exists where “the killing demonstrates an unusual depravity of mind on the part of the defen t the murder was conscienceless and pitiless, leaving the victim in his last moments aware of but helpless to prevent impending death. Defendant’s kicking, pistol-whipping, and taunting his felled victim showed a complete lack of conscience and pity. Moreover, a juror could reasonably infer that the victim knew that death was imminent and that he was helpless to prevent it during the “silent moment” between defendant’s pointing the gun at the victim’s face and the first shot. The length of time during which the victim fears for his life may qualify despite any brevity. See State v. Sexton, 336 N.C. 321, 374, 444 S.E.2d 879, 909 (<HOLDING>), cert. denied, 513 U.S. 1006, 130 L. Ed. 2d Holdings: 0: holding that threatening employee to mind her own business investigating her videotaping her without her permission and forcing her to take polygraph could not be considered adverse employment actions because they had no effect on conditions of employment 1: holding that against her will in the rape statute means without her consent and that the fact that the victim was under the age of consent was sufficient to establish that element 2: holding that a reasonable juror could infer that the victim feared for her life in the ten seconds it took her to lose consciousness 3: holding that a plaintiff who pled in her complaint that her law firm actively misled her in support of her request for application of the discovery rule had sufficiently pled the application of the doctrine 4: holding victim waived physicianpatient privilege by authorizing her doctor to release her medical records to the department of criminal investigation because the information contained in her medical records was no longer confidential between herself and her physician
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893.80(4), which limits immunity to "acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions." Beginning with the injury that Showers has alleged, we note that Showers' allegations are different in kind from the allegations underlying the Lyons test for governmental contractor immunity. The substance of Showers' claim is not that Musson was negligent in its implementation of a decision made in the exercise of a governmental entity's legislative, quasi-le , 253 N.W.2d 240 (1977) (same). ¶ 54. In contrast, Showers alleges that Musson's performance of its construction duties, such as maintaining drainage at the worksite, did not meet the standard of due care for construction work. Cf. Brooks v. Hayes, 133 Wis. 2d 228, 234-35, 395 N.W.2d 167 (1986) (<HOLDING>). An allegation such as Showers makes does not Holdings: 0: holding that the law imposes on every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm and calls a violation of that duty negligence that a complete binding contract between the parties is not a prerequisite to a duty to use due care in ones actions and that architects may be held liable for a breach of the duty of care and breach of contract that results in foreseeable injury economic or otherwise 1: holding that a landowner owed no duty of care to a contractors employee in the situation posed by the parties 2: holding only a material breach discharges contractors duty to perform 3: recognizing that a construction contract implicitly imposes a duty on contractors to perform work according to the standard of due care 4: holding that a general acute care hospital may not delegate its duty to provide physicians for emergency room care because the law imposes a duty on hospital to provide that health care
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to the drug taxing and trafficking conspiracies charged in counts three and four. Even if Appellants had raised an accurate multiple conspiracies challenge to count two, it would be unavailing. The several conspiracies that were predicate acts for the substantive RICO violations of § 1962(c) were also evidence of the overall § 1962(d) conspiracy to violate RICO. What matters for a sufficiency of the evidence inquiry is that there was adequate proof of an overall conspiracy to participate, directly or indirectly, in the conduct of the Erne’s affairs through a pattern of racketeering activity. In this case, the pattern included predicate acts that were themselves constitutive conspiracies. 19 . But cf. Oki Semiconductor Co. v. Wells Fargo Bank, 298 F.3d 768, 774-75 (9th Cir.2002) (<HOLDING>). Although not explicitly labeled as such, the Holdings: 0: holding that plaintiff had standing to bring a rico conspiracy claim despite his inability to bring a substantive rico claim 1: holding that the notion of enterprise conspiracy has largely rendered the old distinction between single conspiracy and multiple conspiracy irrelevant to rico conspiracy charges 2: holding it is the mere agreement to violate rico that 1962d forbids it is not necessary to prove any substantive rico violations ever occurred as a result of the conspiracy without mentioning neibels limitations on who may be held liable for rico conspiracy which posit that conspiracy liability is dependent on potential substantive liability if the scheme were successfully completed 3: holding that plaintiffs cannot claim that a conspiracy to violate rico existed if they do not adequately plead a substantive violation of rico 4: holding that conspiracies can serve as predicate acts for a rico conspiracy
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contentions by Kimler both ignore and misconstrue the evidence in this case. As set out above, there was sufficient direct evidence, even in the abbreviated record before us, that, using his computer, Kimler received and transmitted proscribed images over the internet across state lines via telephone wires, and that those computer images were the ones stored on his computer’s hard drive. As we have emphasized, Kimler does not address his argument to a single one of the dozens of exhibits introduced in this case, along with testimony, showing actual interstate trafficking in the proscribed images over the internet. Kimler also does not argue that such actual interstate activity is not in interstate commerce, nor could he. See, e.g., United States v. Runyan, 290 F.3d 223, 239 (5th Cir.) (<HOLDING>), cert. denied, 537 U.S. 888, 123 S.Ct. 137, Holdings: 0: holding that the government can satisfy the hobbs act interstate commerce requirement by showing that the robbery resulted in the closure of a business engaged in interstate commerce 1: holding that transmission of photographs by means of the internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce 2: recognizing that federal authority under the fpa extends to the transmission of electric energy in interstate commerce and that fpa section 206 is among those provisions that grant authority in connection with such interstate transmission opera tions 3: holding that a state common law claim against a railroad for failure to provide adequate services after the railroad abandoned a line was preempted by frustration of purpose conflict with the interstate commerce act which delegated to the interstate commerce commissioner the authority to regulate abandomnent of lines by earners and broad discretion in determining whether abandonment should be permitted 4: holding that commerce clause authorizes congress to punish any particular criminal action even without proof of a relation to interstate commerce when the activity is part of a class of activities determined by congress to affect interstate commerce
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to be read his Miranda rights before the school police questioned him and, given their failure to do so, we find that Appellant’s Fifth Amendment privilege against self incrimination was violated. Accordingly, the Superior Court’s order is reversed and the matter is remanded to the trial court for proceedings consistent with this opinion. Jurisdiction relinquished. Former Chief Justice FLAHERTY did not participate in the decision of this case. CAPPY, Justice, files a dissenting opinion. CASTILLE, Justice, files a dissenting opinion. NEWMAN, Justice, files a concurring opinion. SAYLOR, Justice, files a concurring opinion. EAKIN, Justice, did not participate in the consideration or decision of this matter. 1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (<HOLDING>). 2 . Although Justice Castille's dissent goes Holdings: 0: holding that constitutional precedent does not require that a convicted defendant be warned of his right to counsel and his right to remain silent prior to submitting to a routine authorized presentence interview 1: holding that a suspects invocation of the right to remain silent must be unequivocal to require that police questioning cease 2: holding that a defendant who is subject to custodial interrogation must be advised in clear and unequivocal language of his constitutional right to remain silent and his right to a lawyer 3: holding that during police interrogation right to remain silent must be invoked unambiguously 4: holding that prior to engaging in custodial interrogation police must warn a suspect that he has a right to remain silent that any statement he does make may be used as evidence against him and that he has a right to the presence of an attorney either retained or appointed
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“imputed income from the distribution is a relevant factor if the parent chooses to deal with the distribution other than as an investment vehicle.” Id. (citing Croak, supra note 4, 856 N.E.2d at 906). “The trial court retains that discretion in part because ‘[a] parent cannot insulate an inheritance from consideration for child support by transforming it into a non-income producing asset.’ ” Lasché I, supra, 977 A.2d at 372 (quoting Cody, supra note 4, 291 A.D.2d 27, 735 N.Y.S.2d at 185). Where a parent does so, it may be reasonable to impute income to all or a portion of an inheritance where there is an adequate foundation for doing so. See, e.g., Connell v. Connell, 313 N.J.Super. 426, 712 A.2d 1266, 1270 (1998); see also Gainey v. Gainey, 89 Wash.App. 269, 948 P.2d 865, 869 (1997) (<HOLDING>) If appellant had invested the funds, the Holdings: 0: holding that ijnter vivos trust distributions are not considered interest obtained by bequest devise or inheritance 1: holding that the corpus of an inheritance is not included in a parents gross income but that the interest generated by an inheritance is 2: holding that inter vivos trusts are not considered interest obtained by bequest devise or inheritance 3: holding inheritance received by debtor more than 180 days after filing but before conversion is property of chapter 7 estate 4: recognizing that a vested equitable estate can be passed through inheritance
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transfers by assignment made to May after the Amendment, including the assignment of income to Berghini Consulting, were ignored by the Bankruptcy Court. A reading of the Bankruptcy Court’s final judgment indicates that the United States’ allegation is well founded; the Bankruptcy Court did focus solely on the transfers made pursuant to the Amendment. This was error. The transfers by assignment were made at a time when the debtor knew about his federal tax liability and these transfers by assignment could have been made in an attempt to evade payment of taxes. After these transfers were made, Sternberg’s assets were beyond the reach of the IRS. All of Sternberg’s asset transfers should have been considered for section 523(a)(1)(C) purposes. See In re Zuhone, 88 F.3d 469 (7th Cir.1996)(<HOLDING>); In re Wright, 191 B.R. 291 Holdings: 0: holding the rule against taxpayer standing applies both to federal taxpayers and state taxpayers challenging state tax or spending decisions simply by virtue of their status as state taxpayers 1: holding that intentional reduction of taxpayers salary to avoid garnishment is indicative of intent to evade or defeat tax 2: holding that garnishment of wages is a deprivation 3: holding that garnishment is a distinct civil action 4: holding that a garnishment proceeding is an action against the consumer
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of treatment. It only requires that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate as to be wholly arbitrary.” State v. Andersen, 208 So.2d 814, 820 (Fla.1968). “Where an equal protection challenge is brought before a court of law, that court must, from the outset, determine the appropriate level of judicial scrutiny to be applied to the state regulation under attack.” Fla. High Sch. Activities Ass’n v. Thomas By & Through Thomas, 434 So.2d 306, 308 (Fla.1983). If the challenged government action “abridge[s] some fundamental right or affect[s] adversely upon some suspect class of persons,” it must withstand strict scrutiny. Id. “To withstand strict scrutiny, a 81, 984 (N.Y.Sup.Ct.1979) (<HOLDING>). We are persuaded by this authority, Holdings: 0: holding that the right to drive is not a fundamental right 1: holding that the right to vote is fundamental 2: holding that age requirements under youthful offender statute did not implicate a fundamental right 3: holding right to be fundamental 4: holding that youthful offender treatment is not a fundamental right
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to limit the jurisdiction of this court or the Commission to inquire into wrongful judicial conduct. In re Fadeley, supra, 310 Or at 558. 8 In context, the term “should” is used in the canon in order to allow for the fact that Canon 3D provides for certain cases in which disqualification will not be required under Canon 3C(1)(c) (financial interest) or Canon 3C(1)(d) (relational interest), based on adequate disclosure by a judge and the written consent of the parties. 9 The range of constitutional challenges based on “vagueness” is discussed in Megdal v. Board of Dental Examiners, 288 Or 293, 296-303, 605 P2d 273 (1980). We will assume, arguendo, that the challenge in this case may be cognizable generally as a federal due process claim under the Fourteenth Amendment. Id. at 300-03 (<HOLDING>). 10 The Judge argues that the blanket Holdings: 0: recognizing that tribes have an interest in a uniform body of federal law in the area of tribal immunity 1: recognizing the uncertain state of federal law in this area 2: holding that the plaintiffs state law claims are preempted by federal law 3: holding that a state court settlement may be given full faith and credit in federal courts even if it concerns an exclusively federal area of law 4: recognizing this rule
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which applied the ordinance — not any state-court judgment. Similarly, in Count II, Plaintiff alleges that “[t]he City” may not deprive Get Back Up due process of law under the Fourteenth Amendment. (Compl. II56.) Therefore, neither count stems from any judgment of a state court. The fact that the Wayne County Circuit Court affirmed the BZA’s decision does not change the result. See McCormick, 451 F.3d at 394 (“The fact that the state court chose not to remedy the injury does not transform the subsequent federal suit on the same matter into an appeal, forbidden by Rooker-Feldman, of the state-court judgment.” (quoting Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 87-88 (2d Cir.2005))); Camp v. City of Charlevoix, 1:07-CV-980, 2008 WL 4185954, at *4 (W.D.Mich. Sept. 8, 2008) (<HOLDING>). Accordingly, this Court has subject-matter Holdings: 0: holding that although the state court affirmed the zoning board of appeals dismissal of plaintiffs appeal the statecourt judgment did not trigger rookerfeldman where the complaint did not allege that the judgment itself violated federal law 1: holding that rookerfeldman bars subject matter jurisdiction where but for the statecourt judgment the plaintiff would have no claim 2: holding that rookerfeldman does not apply when the plaintiffs injury rests not on the state court judgment itself but rather on the alleged violation of his constitutional rights by the defendant 3: holding rookerfeldman also bars federal claims raised in state court as well as claims that are inextricably intertwined with the statecourt judgment 4: holding that a plaintiffs federal action seeking to vacate a state court judgment was a de facto appeal and thus barred under the rookerfeldman doctrine
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for his conclusion that Mrs. Kyle developed blood clots and pulmonary emboli that were the cause of her respiratory arrest as a result of failure [t]o provide appropriate post operative drugs. Because Hillery objected only on the grounds that the report was conclusory concerning the element of causation, and did not mention the elements of standard of care or breach, we do not address that portion of Hillery’s issue concerning standard of care and breach. See Tex.R.App. P. 33.1(a); Hawkins v. Herrera, 296 S.W.3d 366, 370 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (refusing to address objections by defendant physician who did not raise objections in trial court); see also Plemons v. Harris, No. 02-08-00326-CV, 2009 WL 51290, *3 (Tex.App.-Fort Worth Jan. 8, 2009, no pet.) (mem. op.) (<HOLDING>); Williams v. Mora, 264 S.W.3d 888, Holdings: 0: holding that complaint on appeal must be the same as that presented in the trial court 1: holding that an issue was not preserved for appellate review because appellants trial objection does not comport with the issue he raised on appeal 2: holding that defendant failed to preserve for appellate review complaint that prosecutors use of postarrest silence against defendant violated the texas constitution because complaint did not comport with defendants trial court objection based solely on the federal constitution 3: holding objection to expert report made in trial court must comport with complaint asserted on appeal 4: holding that appellant did not preserve his complaint for review because the grounds raised on appeal did not comport with those urged to the trial court as justifying suppression
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it may award full attorney’s fees; we will set such an award aside only if it is “manifestly unreasonable and amounts to a clear abuse of discretion.” Given Mr. Song’s failure to argue this issue, we find no reason to disturb the award of full fees to Ms. Song for defending against Mr. Song’s motion to set aska 1972) (same, regarding a Rule 60(b)(1) motion). 8 . O'Link v. O'Link, 632 P.2d 225, 230 (Alaska 1981). 9 . See Carvalho v. Carvalho, 838 P.2d 259, 261 n. 4 (Alaska 1992). 10 . Cf. Cushing v. Painter, 666.P.2d 1044, 1045-46 (Alaska 1983) (finding that the court violated basic fairness by issuing final custody order with^out notice after expedited, interim hearing). 11 . AS 25.24.220(g). 12 . See Aarvig v. Aarvig, 248 N.J.Super. 181, 590 A.2d 704, 706-07 (N.J.Super.App.Div.1991) (<HOLDING>); Bond v. Bond, 69 Ohio App.3d 225, 590 N.E.2d Holdings: 0: holding that a settlement agreement is not a court order and therefore a violation of the settlement agreement would not subject a party to contempt 1: holding that a court may only enforce a settlement agreement if it constitutes an enforceable contract 2: holding that the trial court had authority to enforce a marital property settlement agreement that had not been incorporated into the parties final divorce decree 3: holding that trial court is without authority to modify a settlement agreement but may enforce and interpret it 4: holding that court may not refuse to enforce noncompete agreement solely because geographical area is unreasonable but rather must modify unreasonable restriction and enforce agreement as modified
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defend, despite controlling authority that the duty to defend is determined by allegations of the underlying complaint, because further factual development was warranted to determine whether damage, as alleged in the complaint, occurred while the premises were being used as contemplated by the policy); American States Ins. Co. v. Maryland Casualty Co., 587 F.Supp. 1549, 1553 (E.D.Mich.1984) (declaratory judgment action by insurer where, despite state authority that the duty to defend is determined based on allegations of the complaint, court looked to “subsequent discovery and testimony at trial” to discern the “continuous nature of the insured’s dumping” and held that the insurer had no duty to defend or indemnify); Kepner v. Western Fire Ins. Co., 109 Ariz. 329, 509 P.2d 222 (1973) (<HOLDING>); Barmet of Indiana v. Security Ins. Group, 425 Holdings: 0: holding insurers duty to defend is determined by allegations in the petition 1: holding that the insurer had no duty to defend the insured because the allegations of the initial complaint did not allege facts which would bring the case within the coverage of the title insurance policy 2: holding despite authority for the general proposition that the duty to defend is determined based on the allegations of the complaint that an insurer had no duty to defend where the underlying claim was covered by the policy based on the facts pleaded in complaint but other facts not appearing in the complaint excluded coverage 3: holding that an insurers duty to defend arises from the allegations in the complaint against the insured 4: holding that the trial court erred in looking beyond the allegations of the complaint to determine whether a duty to defend arose
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While the additional facts added to the evidence are relevant to an analysis of Colvin's credibility, "the very persuasive pieces of physical corroboration" cited by Judge Andrews still remain. Based on our analysis of the evidence presented to Judge Andrews and the additional facts that must be added pursuant to Judge Wolverton's findings, we conclude that the additional facts do not preclude a finding of probable cause. Accordingly, we reverse the superior court's order suppressing the taped conversations obtained when the police executed the (Hlass warrants. Conclusion The order of the superior court suppressing the taped conversations obtained when the Glass warrants were executed is REVERSED. 1 . See State v. Glass, 583 P.2d 872 (Alaska 1978), on reh'g, 596 P.2d 10 (Alaska 1979) (<HOLDING>) (citations omitted). 5 . See Lewis v. State, 9 Holdings: 0: holding that under the alaska constitution the police must obtain a warrant before electronically monitoring or recording a private conversation even when one or more participants to the conversation consent to the police surveillance 1: holding that the alaska constitution requires police to obtain judicial authorization before secretly recording a persons private conversations2 722 p2d 943 alaska 19863 862 p2d 181 alaska app199344 lewis 862 p2d at 186 quoting malkin 722 p2d at 946 n 6 2: holding that the alaska hire law which requires that all oil and gas leases easements or rightsofway permits et cetera contain requirement that qualified alaska residents be hired in preference to nonresidents is unconstitutional as violative of the privileges and immunities clause of the constitution 3: holding that the due process clause of the alaska constitution guarantees the right to effective counsel in proceedings for the termination of parental rights 4: holding that the alaska constitution requires police to obtain judicial authorization before electronically monitoring or recording a persons private conversations
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criminal convictions and, thus, support the conclusion that the prosecution of the resisting arrest charge ended in plaintiffs favor. Under similar circumstances, other courts have found no bar to a malicious prosecution claim. See, e.g., Ahern v. City of Syracuse, 411 F.Supp.2d 132, 151 (N.D.N.Y.2006) (permitting malicious prosecution claim for resisting arrest charge to proceed despite finding of probable cause as to skateboarding and unlawful possession of marijuana charges); Kavazanjian v. Rice, No. 03-CV-1923 (FB), 2005 WL 1377946, at *4 (E.D.N.Y. June 6, 2005) (finding malicious prosecution claim for criminal mischief charge not barred by conviction for, inter alia, assault, resisting arrest, and aggravated unlicensed operation of a motor vehicle); Pichardo, 1998 WL 812049, at *4 (<HOLDING>); Sassower v. City of White Plains, No. Holdings: 0: holding that conviction on misdemeanor assault charge did not bar malicious prosecution claim for misdemeanor resisting arrest charge 1: holding that unlike malicious prosecution claim false arrest claim accrues on the date of the arrest 2: holding that resisting arrest is lesser offense of assault on an officer 3: holding the same for malicious prosecution 4: holding that conviction for speeding did not preclude a malicious prosecution claim arising from acquittal on charges of resisting arrest and attempted escape
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grant the relief R2 seeks without requiring a significant revision of Charter’s reorganization. R2’s argument is, in effect, an attack on the bankruptcy court’s determination that it was appropriate for the Plan to consider all the Charter entities together, even though the bankruptcies were never substantively consolidated. In order to grant a separate valuation of CCI, the district court would have had to overturn the bankruptcy court’s determination that a joint Plan was appropriate. That legal conclusion would require not just that CCI be separately valued, but that all the Charter subsidiaries be revalued and the proceeds of the bankruptcy distributed accordingly. See Compania Internacional Financiera S.A. v. Calpine Corp. (In re Calpine Corp.), 390 B.R. 508, 519-20 (S.D.N.Y.2008) (<HOLDING>), aff'd 354 Fed.Appx. 479 (2d Cir.2009). This Holdings: 0: holding that the debtors valuation was a key issue in a reorganization and therefore even if a remand resulted in a higher valuation the plan would need to be substantially changed 1: holding district courts rejection of appellants uncontroverted valuation testimony compelled remand 2: holding that the complaints of a public employee about a reorganization plan were on a matter of public concern even though the employee was primarily motivated by the adverse effect of the plan on himself 3: holding that even though the bankruptcy court earlier in the case had found that horses owned by the debtor had a value of 13430000 at the confirmation hearing in evaluating the chapter 11 plan of reorganization the bankruptcy court properly reexamined the valuation of the horses and found that the value had decreased due to the fact that the market was depressed and that it would take at least one year to sell the horses emphasis added 4: holding that a remand need not be ordered despite legal errors if remand would be futile
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serious crime and should be deterred by the imposition of a separate penalty through a consecutive sentence. See United States v. Packer, 70 F.3d 357, 360 (5th Cir.1995) (interpreting the statute’s intent), cert. denied, — U.S. -, 117 S.Ct. 75, 136 L.Ed.2d 34 (1996). Contrary to the suggested treatment of a sentence in Commentary 3 to U.S.S.G. § 2J1.6, the statute does not suggest that a sentencing court might determine a total sentence for the underlying offense or offenses and the failure to appear and then divide the sentence among the convictions. The consecutive sentencing requirement of the statute is in conflict with Commentary 3 to U.S.S.G § 2J1.6. The statute’s requirement of a consecutive sentence, therefore, prevails over the Sentencing Guidelines. See Packer, 70 F.3d at 360 (<HOLDING>); cf. United States v. Vue, 13 F.3d 1206, 1214 Holdings: 0: holding that a district court is not authorized to sentence a defendant below the statutory minimum unless the government filed a substantial assistance motion pursuant to 18 usc 3553e and ussg 5k11 or the defendant falls within the safetyvalve of 18 usc 3553f 1: holding that 18 usc 1919 did not implicitly repeal 18 usc 1001 2: holding that 18 usc 3146b2 prevails over commentary 3 to ussg 2j16 because the commentary defeats the statutes intent 3: holding that the defendant could be prosecuted for making false claims against the government under either the false claims statute 18 usc 287 or the mail and wire fraud statutes 18 usc 1341 1343 4: holding that submitting false claims to the government could be charged under either the false claims act 18 usc 287 or the mail and wire fraud statutes 18 usc 1341 1343 because nothing in the statutory language of the relevant statutory provisions provided any evidence of an intent to withdraw from one statute a coverage it obviously has standing alone because of a coverage also afforded by another statute
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failed to notify the Union before granting higher rates of pay to less senior members and did not mention the issue of obtaining the Union’s consent. Meanwhile, the Union argues that the grievance more broadly claimed a violation of Article 14 and that the issue of consent came up both during the arbitration hearing and in the parties’ post-hearing briefs. An arbitrator’s authority to decide issues extends only to the issues actually submitted. Matteson v. Ryder Sys., Inc., 99 F.3d 108, 114 (3d Cir.1996). We have cautioned against “attaching] too great significance to documents drafted early in the dispute,” such as the initial grievance, and observed that the issues to be decided are those reflected in the evidence and arguments of the parties at the arbitration hearing. Id. at 115 (<HOLDING>). In keeping with our standard of review, we Holdings: 0: holding that an arbitrator stepped outside his authority when he decided an issue that had been focused on earlier in a grievance process but not in the final hearing 1: holding that the issue of whether contract which contained arbitration agreement was illegal should be properly decided by arbitrator not court 2: holding that because the parties agreed to arbitrate and both placed the issue before the arbitrator the issue of consolidation was for the arbitrator 3: holding that an arbitrator was not bound by an earlier award involving a different contract and different union 4: holding that the arbitrator was without jurisdiction to consider an issue which was not included in the written notice of arbitration and was added on the first day of the arbitration hearing
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misconduct depend on factual determinations that were resolved against him, we will not substitute our judgment for that of the hearing committee on questions of fact. See Bristol, 2006-NMSC-041, ¶ 15, 140 N.M. 317, 142 P.3d 905 (“Because the hearing committee directly observes witness testimony, it is in the best position to weigh the evidence, resolve matters of credibility, and choose between the conflicting inferences that may be drawn from the evidence.”). Moreover, other than general assertions of prejudice, Respondent failed to specifically demonstrate how any of disciplinary counsel’s purported misconduct prejudiced Respondent’s defense or would result in a different outcome if rectified. See In re Castellano, 119 N.M. 140, 144, 889 P.2d 175, 179 (1995) (per curiam) (<HOLDING>). For all of the foregoing reasons, we reject Holdings: 0: holding lack of prejudice to the defendant is not good cause 1: holding that an assertion of prejudice is not a showing of prejudice 2: holding that a showing of prejudice is generally required in the context of an ineffectiveassistance claim 3: holding that prejudice or injury is a necessary element of standing 4: recognizing that the burden of persuasion for a showing of prejudice was on the defendant
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desire to speak does not negate Fautenberry’s pri- or, unambiguous initiation of further communication. To be sure, had Fautenberry reinvoked his Fifth Amendment right to counsel after initiating communication with Agent Ott, he would have been protected from further questioning, but Fau-tenberry does not assert that he did so and the alleged Brady evidence does not demonstrate that he did so. In order to invoke one’s Fifth Amendment right to counsel, the “suspect must unambiguously request counsel,” meaning that “he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (<HOLDING>). The alleged Brady evidence does not indicate Holdings: 0: holding i might want to talk to an attorney to be ambiguous 1: holding that an ambiguous or silent record will not support a claim of ineffective assistance of counsel 2: holding that in determining whether there exists a valid waiver of the right to counsel in the criminal setting the court may consider a defendants lack of good faith in working with appointed counsel including an unreasonable refusal to cooperate with counsel or an unreasonable request for substitution of appointed counsel and the timeliness of defendants request for new counsel particularly when a defendant makes an untimely request for new counsel under circumstances which are likely to result in a continuance 3: holding that an ambiguous mention of an attorney is not a request for counsel 4: holding even when a request for an attorney is ambiguous it is incumbent upon law enforcement to seek clarification of the ambiguity before denying the statutory right to counsel
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a court to examine the circumstances surrounding an assertion of lawful authority to search to determine whether the consent was sufficiently independent of the assertion to remove its taint. If not, the consent was not freely and voluntarily given. ¶ 18 Although it might be difficult to prove that consent given after an assertion of lawful authority to search was nevertheless freely given, we should not preclude the possibility that it could happen. For example, consent conceivably could be voluntary if, after an officer asserts lawful authority to search, the officer retracts that assertion or an attorney advises that the search is not lawfully required before the subject of the search consents. See Kunzler v. Pima Cty. Superior Court, 154 Ariz. 568, 570, 744 P.2d 669, 671 (1987) (<HOLDING>); State v. Brooks, 838 N.W.2d 563, 571 Holdings: 0: holding 1 that administering a breath test is not a critical stage of the proceedings to which a sixth amendment right to counsel attaches and 2 that the results of a breath test are physical evidence not testimonial and thus no fifth amendment right to counsel attaches 1: holding that a driver demonstrated his refusal by giving nonresponsive answers to a request for a breath test ignoring a request for a yesorno answer and never taking the test 2: holding that the odor of alcohol on the defendants breath her admission that she had a few drinks earlier in the evening and a positive result on a breath test do not provide probable cause to arrest her for dui 3: holding that a person arrested for dui has the right to consult an attorney before taking a breath test when such consultation would not delay or interfere with the investigation or test taking 4: holding that dui is not such an offense
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permitted to participate.” Id. at 229-30, 74 S.Ct. 450 (emphasis added); cf. Maj. Op. 347-48 (omitting italicized language). Remmer thus imposes on a district court two distinct obligations: a duty to investigate allegations of a juror’s exposure to an unauthorized communication and a duty to determine whether the exposure violated the defendant’s constitutional rights. See United States v. Corrado, 227 F.3d 528, 535-36 (6th Cir.2000) (stating that “ ‘when there is a credible allegation of extraneous influences, the court must investigate sufficiently to assure itself that constitutional rights of the criminal defendant have not been violated’” (quoting United States v. Rigsby, 45 F.3d 120, 124-25 (6th Cir.1995))); United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir.1985) (<HOLDING>); see also Williams v. Bagley, 380 F.3d 932, Holdings: 0: holding that the defendant by not bringing his knowledge of possible juror bias to the attention of the district court prior to verdict waived his right to a new trial 1: holding that litigants have a duty to disclose their objection to a prospective juror by promptly bringing the matter to the attention of the trial court 2: holding that there is no sixth amendment right to jury sentencing 3: holding that where possible juror misconduct is brought to the trial judges attention he or she has a duty to investigate and to determine whether there may have been a violation of the sixth amendment 4: holding that a criminal defendant has a sixth amendment right to counsel at trial
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held in Mingo v. Sugar Cane Growers Co-op. of Florida, findings satisfying both prongs of our standard are essential before dismissal with prejudice is appropriate. 864 F.2d 101, 102-03 (11th Cir.1989). And, although “we occasionally have found implicit in an order the [findings necessary to support dismissal], we have never suggested that the district court need not make that finding.” World Thrust Films, Inc., 41 F.3d at 1456 (internal quotation marks and citation omitted). We rigidly require the district courts to make these findings precisely “[b]ecause the sanction of dismissal with prejudice is so unsparing,” Mingo, 864 F.2d at 103, and we strive to afford a litigant his or her day in court, if possible. Flaksa v. Little River Marine Constr. Co., 389 F.2d 885, 888 (5th Cir.1968) (<HOLDING>). Thus, in Mingo, where the district court Holdings: 0: recognizing the importance except in the most flagrant circumstances of resorting to sanctions that do not deprive a litigant of his day in court 1: holding that it is error to conduct most of the jury selection process in the absence of the defendant 2: recognizing that it is not enough merely to mention a possible argument in the most skeletal way leaving the court to do counsels work 3: holding that a litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant 4: holding that court had no obligation to inform pro se litigant of procedural requirements due to clear evidence in record including inter alia defendants mention of requirements in summary judgment motion that litigant knew requirements
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be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights. Carey, 435 U.S. at 266, 98 S.Ct. 1042. The FTCA’s waiver of sovereign immunity is limited to damages “for injury or loss of property, or personal injury or death.” 28 U.S.C. § 1346(b)(1). In situations where Congress has limited the ability of plaintiffs to collect damages due to governmental wrongs—such as the FTCA—courts have recognized that such a statutory limitation does not preclude the award of nominal damages for a violation of a constitutional right. See, e.g., Bush v. St. Tammany Par., 754 F.2d 1132, 1133 (5th Cir.1984) (affirming award of nominal damages for FTCA violation); Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir.2000) (<HOLDING>); Perkins v. Kansas Dep’t of Corr., 165 F.3d Holdings: 0: recognizing availability of nominal damages for violations of constitutional rights notwithstanding statutory bar in prison litigation reform act 42 usc 1997ee 1: holding that nominal damages are appropriate for deprivations of constitutional rights that do not result in actual injury 2: holding that under 1983 violations of constitutional rights are actionable for nominal damages without proof of actual injury 3: holding that the right to nominal damages for eighth amendment violations can be waived if such damages are not timely requested 4: holding that a prisoners claim was saved by his request for nominal and punitive damages even though he could not recover compensatory damages under the prison litigation reform act
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1 . 29 U.S.C. § 106. 2 . The district court set aside the verdict against Gilmartin for intentional infliction of emotional distress, indicating that it believed the evidence was insufficient. Whether or not the court was correct to do so is an issue we do not reach since the Johnsons' cross-appeal was untimely, infra. We are nonetheless free to take account of the evidence against Gilmartin in deciding whether the evidence as a whole suffices for us to affirm the district court's approval of the jury verdict against the Union. 3 . The legal issue as to whether some of the harassing conduct amounted to assaults turned on whether the conduct embodied a sufficiently imminent threat of bodily harm. See Comrie v. Hinds, No. CV 930521854S, 1996 WL 240419 at *2 (Conn.Super. April 18, 1996) (<HOLDING>); 6A C.J.S. Assault & Battery § 4 (1975) Holdings: 0: holding that a conspiracy is an agreement to commit an illegal act into which the defendant knowingly and voluntary enters and which is manifested by an overt act 1: holding that an overt act may be a verbal statement or a physical act 2: holding proof of an overt act is not required to establish a violation of 846 3: holding that proof of an overt act is not required in a 846 conspiracy 4: holding that an assault cannot be accomplished by words alone there must be an overt act evidencing some corporeal threat
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officer, in violation of 26 [U.S.C. § 7214], for making and signing fraudulent entries, and failing] to perform their duties, making them personally liable for damages.” Id. Any fraud, therefore, “is not one perpetrated by [Plaintiffs], but one by color of law, absent the requirements of law.” Id. at 2-3. In addition, Plaintiffs challenge the Government’s contention that res judicata bars Plaintiffs’ claims, because “[l]ack of jurisdiction either of the person or of the subject matter precludes an administrative determination from being res judicata.” Id. at 3. Since the Notice of Deficiency and certificates of assessment are not valid, “all determination[s] based upon that ignorance is void due to lack of validity.” Id. Finally, Plaintiffs reassert that their Promissory Note (2006) (<HOLDING>). The United States Court of Federal Claims has Holdings: 0: holding that wages are subject to oregons personal income tax and that a taxpayers argument to the contrary was frivolous 1: holding that this court does not have jurisdiction over tax claims for declaratory or equitable relief 2: holding that the united states court of federal claims does not have jurisdiction to enter declaratory judgment that taxpayers were not liable for any type of federal income tax or to issue injunction permanently removing the tax liens on property and levies on wages 3: holding that interest received by a foreign corporation on a tax refund from the united states was interest on an interestbearing obligation of a resident of the united states within income tax statute 4: holding that taxpayers failure to follow state requirement that he report change in federal income tax did not except state tax liability from discharge
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Underwriting Association ... NJ.Stat.Ann. 17:29A-35b(2). The plain language of the statute makes clear that at least 10% of the surcharge bill or the actual collection fees incurred in recovering unpaid surcharges are to be paid to the DMV for its costs of administering the collection of surcharges and the cancellation notification system. The remainder are to be remitted to the JUA as part of the scheme of assuring market rate insurance to all motorists. Because Code § 523(a)(7) excludes from its coverage debts payable to and for the benefit of a governmental unit as compensation for actual pecuniary loss, the debtor’s obligation to pay that portion of costs and fees retained by the DMV to cover administrative expenses is dischargeable. See 11 U.S.C. § 523(a)(7); Kent, 190 B.R. at 206 (<HOLDING>); Curtin, Ch. 7 Case No. 95-28844, Adv. No. Holdings: 0: holding that 525 applies only where the debt in question is dischargeable 1: holding that recovery is limited to the portion of the medicaid recipients thirdparty recovery representing compensation for past medical expenses 2: holding that debtors obligation to pay portion of debt representing administrative expenses of collection was dischargeable 3: holding that if both willful and malicious are not met the debt is dischargeable 4: holding 525 applies only where debt dischargeable
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payment amounts that Durham must follow in connection with the court-ordered restitution. The essence of this claim is that decisions such as the amount and timing of IFRP payments constitute core judicial functions under Article III, and therefore a district court cannot delegate those functions without violating separation of powers. The IFRP, set forth in 28 C.F.R. §§ 545.10 and 545.11, requires participating inmates to commit a percentage of their prison employment earnings toward the payment of court-ordered restitution. Its constitutionality has been considered and upheld by other circuits. See McGhee v. Clark, 166 F.3d 884, 886 (7th Cir.1999) (noting that the IFRP “has been uniformly upheld against constitutional attack”); Dorman v. Thornburgh, 955 F.2d 57, 58-59 (D.C.Cir.1992) (<HOLDING>); Johnpoll v. Thornburgh, 898 F.2d 849, 851 (2d Holdings: 0: holding ifrp does not deprive inmates of constitutional rights to due process 1: holding that doctrine does not violate due process 2: holding errors based on the constitutional rights to confrontation and due process may be waived by failure to object at trial 3: holding inmates in segregation unit without charges being filed against them and without informing them of reasons for such confinement violated inmates due process rights 4: holding bop did not exceed its authority in establishing ifrp and that the program does not violate due process
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state action for the purposes of the Fourteenth Amendment and section 1983. The second theory is the so-called “public function” theory: that the State of Illinois has allowed hotel proprietors to perform a governmental function in enforcing their lien, and therefore that their actions must be governed by constitutional limitations. A. Entwinement The proper focus for determining whether state action exists under this theory was recently stated by the Supreme Court as follows: [T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974) (<HOLDING>). The test is whether the state has Holdings: 0: recognizing the fundamental objective in utility ratemaking that customers who benefit from a service should bear the costs of providing that service quotation marks omitted 1: holding defendants act of disconnecting gas service for nonpayment was not proximate cause of plaintiffs carbon monoxide poisoning 2: holding that warehouse companys sale of customers goods for nonpayment of storage charges did not constitute state action though authorized by state statute 3: holding that the termination of electric service by a public utility for nonpayment of bills was not state action 4: holding that termination is an adverse employment action
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that she had been shot; in August 2001, a woman reported an assault (without injury); in February 2002, a woman reported that her car was stolen from her in the parking lot; in April 2002, one customer intentionally hit another customer’s vehicle in the drive-through lane (with property damage but not injury); and, in February 2003, police arrested a person who refused to leave the premises. In contrast, no evidence exists that the Whataburger was the scene of any aggravated assault, aggravated robbery, sexual assault, or murder in the three years prior to Dean’s murder. No crime similar to this one had ever occurred: no one had ever robbed the restauran of bus was not foreseeable because plaintiff produced no evidence of similar robberies on same bus line), and Allen, 158 S.W.3d at 67 (<HOLDING>), with Trammell Crow Cent. Tex., Ltd. v. Holdings: 0: holding that duty to protect from criminal acts does not arise in the absence of a foreseeable risk of harm 1: holding that sexual assault was not foreseeable because plaintiff produced no evidence of similar criminal acts on or near defendants premises 2: holding that criminal conduct on premises was not foreseeable 3: holding evidence of sexual assault relevant to show defendants motive in kidnapping victim 4: holding that merger did not apply because sexual assault was not a lesser included offense of seconddegree kidnapping involving sexual assault
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Petitioner Gustavo Escobedo-Fernandez (Escobedo) seeks review of the reinstatement by the Department of Homeland Security (DHS) of his 1997 order of deportation. He also challenges the dismissal by the Board of Immigration Appeals (BIA) of his two motions to reopen and his motion to reconsider. 1. This court lacks jurisdiction to review the DHS’s reinstatement of Escobe-do’s 1997 order of deportation because he did not appeal that order to the BIA. See Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir.2008) (<HOLDING>); see also 8 U.S.C. § 1252(d)(1) (requiring Holdings: 0: holding that this courts sixyear statute of limitations is jurisdictional 1: holding that 28 usc 2401 is a jurisdictional statute of limitations 2: holding statute of limitations is jurisdictional and may be raised at any time but noting other ohio appellate courts have held the statute of limitations is not jurisdictional and may be waived if not asserted at the trial level 3: recognizing that other jurisdictional limitations within 8 usc 1252 remain applicable 4: holding that the aedpa statute of limitations is not jurisdictional
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the Statute of Elizabeth Ross has also argued that PCS may not set aside conveyances under the Statute of Elizabeth where PCS has not established the precise amount of the underlying debt. See, e.g., ECF No. 343 at 12-13 (“PCS has not established its ability to set aside the conveyance in any amount because it didn’t prove at trial that it’s owed monies from Ross in any particular amount.”). Federal Rule of Civil Procedure 18(b) and South Carolina Rule of Civil Procedure 18(b) allow actions for recovery of a debt and fraudulent conveyance to proceed contemporaneously, rather than previously where a creditor was required to obtain a return nulla bona before commencing an action to set aside a fraudulent conveyance. See also Lebovitz v. Mudd, 293 S.C. 49, 358 S.E.2d 698, 700-01 (1987) (<HOLDING>). Ross argues that, nonetheless, PCS is Holdings: 0: holding that once rule 18b went into effect no creditor suing under the statute of elizabeth needs to reduce debt to a judgment and obtain a return nulla bona before bringing suit 1: holding that effect of discharge of debt under bankruptcy code is the same as it was under the 1898 bankruptcy act it is not an extinguishment of the debt but only a bar to enforcement of the debt as a personal obligation of the debt or 2: recognizing need to balance interests of debt or and creditor in determining nature of protection to be afforded creditor 3: holding llcs were entitled to notice of proceedings supplemental instituted by a judgment creditor to attempt to obtain judgment debtors interests in the companies to pay judgment debt 4: holding that an assignee of a debt can step into the shoes of the original creditor for purpose of 523a2a
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'only expressly in a state statute or constitution' or by overwhelming implication from the text of that state statute or constitution). Thus, KSU argues that-in this case a waiver may only be found if the text of Kan. Stat. Ann. § 76-723 overwhelmingly implies no other reasonable construction. On the other hand, the debtors urge us to follow the approach taken by the bankruptcy and district courts-reading the legislation in concert with the contract and the federal regulation to determine wh ida Nursing Home Ass’n, 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (stating that state agency’s explicit agreement “to obey federal law in administering federal program can hardly be deemed an express waiver of Eleventh Amendment immunity”); Edelman, 415 U.S. at 673-74, 94 S.Ct. 1347 (<HOLDING>); accord Duke v. Department of Agric., 131 F.3d Holdings: 0: holding that federal express despite the use of the word federal in its name is not a federal agency and therefore cannot be sued in this court 1: holding that neither mere participation in a federal program nor provision requiring compliance with federal law is sufficient to establish that the state consented to be sued in federal court 2: holding federal government not barred from relitigating facts resolved in defendants favor in prior state prosecution because federal government is neither the same as nor in privity with state 3: holding that federal law governs res judicata effect of an earlier federal judgment based on federal law 4: holding that in diversity cases federal courts are to apply state substantive law and federal procedural law
|
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§ 2254’s exhaustion requirement, but, more importantly for our purposes, also constitutes an adjudication on the merits that is ripe for federal habeas review. See Comer v. Schriro, 463 F.3d 934, 956 (9th Cir.2006) (concluding, for purposes of federal habeas review, that a claim is exhausted and ripe for review on the merits if, under "Arizona’s fundamental error review ... the state appellate court ... mentions it is considering the claim sua sponte ”), withdrawn on other grounds, Comer v. Stewart, 471 F.3d 1359 (9th Cir.2006) (granting rehearing en banc to consider whether to grant state habeas petitioner’s motion to voluntarily dismiss the federal habeas proceedings); Moormann v. Schriro, 426 F.3d 1044, 1057 (9th Cir.2005); Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th Cir.1990) (<HOLDING>); Cooper v. Wainwright, 807 F.2d 881, 887 (11th Holdings: 0: holding that appellate court may raise issues of default sua sponte where necessary to protect inter alia the finality of federal criminal judgments 1: holding that a district court has the discretion to raise a 2254 timeliness consideration sua sponte 2: holding that a state appellate courts decision to raise and answer a constitutional question sua sponte permits subsequent federal habeas review 3: recognizing every federal appellate court has a special obligation to consider its own jurisdiction even if it must do so sua sponte 4: holding that the court can raise res judicata sua sponte even on appeal
|
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testified at the evidentiary hearing that he had resided at the same residence for the past fifteen years: 1712 26th Street in Orlando, Florida. This address matched the address listed for Coleman on the State’s witness list. Nevertheless, Corporal Payne testified that she was unable to locate Coleman at the address Richards gave her. Buttressing Payne’s 3 F.2d 250 (11th Cir.1987); Monfiston v. Sec’y, Dep’t of Corr., 559 Fed.Appx. 863, 868 (11th Cir.2014) (concluding that for the petitioner to show that he was prejudiced by counsel’s alleged deficiency to investigate the witness, he had to rebut by clear and convincing evidence the state postconviction court’s finding that the witness was unavailable to testify at trial); Gideon v. Dep’t of Corr., 295 Fed.Appx. 988, 990 (11th Cir.2008) (<HOLDING>); see also Nelson v. State, 875 So.2d 579, 583 Holdings: 0: holding that the state courts determination that the petitioner could not show prejudice because he did not allege that the witness was available to testify was a reasonable application of federal law to the facts of the case 1: holding that a 3851 claim of ineffective assistance was legally insufficient where the motion did not allege the specific facts to which the witness would testify and how the lack of testimony prejudiced the case 2: holding that the plaintiff has not raised a colorable claim that he was denied procedural due process because he did not allege that the available state remedies are constitutionally inadequate 3: holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify the claimant must allege 1 the identity of the potential witness 2 that the witness was available to testify at trial 3 the substance of the witnesss testimony and 4 an explanation of how the omission of the testimony prejudiced the case 4: holding that material prejudice was not present under the facts however an agency of the state was not a party to the action
|
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the challenged conduct did not violate a constitutional right (the objective element) and the official undertook the challenged conduct in a good-faith belief that the conduct was valid (the subjective element). However, on further consideration, the Court in Harlow v. Fitzgerald stated, “[t]he subjective element of the good-faith defense frequently has proved incompatible with our admonition in Butz that insubstantial claims should not proceed to trial.” 457 U.S. 800, 815-16, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Therefore, the modern qualified immunity doctrine is viewed only through the lens of objective reasonableness. Id., at 815-16, 102 S.Ct. 2727. Title VI Claims Plaintiff appears to bring his Title VII claims against both the individual Defendants — in t 084 (5th Cir.1981) (<HOLDING>); Chavez v. McDonald’s Carp., 1999 WL 814527, Holdings: 0: holding that a title vii plaintiff could not hold coworkers liable in their individual capacities under title vii 1: holding that individual employees are not liable under title vii 2: holding that a supervisor who implemented a maternity leave policy that violated the terms of title vii could not be held individually liable 3: holding that individual defendants may not be held liable for violations under title vii 4: holding individual employees may be liable under title vii
|
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of counsel that occurred around November 15, 2002, when the State allegedly withdrew the 20-year plea-bargain offer that appellant had purportedly accepted. Waiver of Right to Appeal In its reply brief, the State contends that any alleged errors concerning the “plea bargain process” have been waived by appellant’s pleas of guilty because the complaints of ineffective assistance of counsel have no nexus with appellant’s pleas of guilty. Whether entered with or without an agreed recommendation of punishment by the State, a valid plea of guilty or nolo contendere waives, or forfeits, the right to appeal a claim of error only when the judgment of guilt was rendered independently of, and is not supported by, the alleged error. Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App.2000) (<HOLDING>). There must usually be a nexus— temporal or Holdings: 0: holding that without transcript of trial proceedings appellate court cannot review underlying evidence so as to conclude that trial courts judgment is not supported by evidence 1: holding that testimony given by a defendant in support of a motion to suppress cannot be admitted as evidence of his guilt at trial 2: holding that because judgment of youngs guilt was not rendered independently of trial courts ruling on motion to suppress evidence of offense and judgment would not be supported without that evidence error not waived by plea of guilty 3: holding that a trial court can only consider admissible evidence in ruling on a motion for summary judgment 4: holding that appellants plea of guilty was not rendered independently of trial courts ruling on motion to reveal identity of confidential informant and that error was thus not waived by plea of guilty because informants testimony was relevant to and needed for defense to prosecution
|
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is a reasonable deduction from facts in evidence; it was not “speculation.” Detective Reynolds saw the ligatures tied to Jeff Wright’s wrists and leg, at the death scene, at the morgue, and in photographs. Although Detective Reynolds admittedly did not know where on the headboard of the bed the ligatures were tied, it was reasonable for him to infer that appellant secured the ligatures to the bed in some fashion. See Valdez, 776 S.W.2d at 169. Moreover, the precise location where the ligatures were tied is an insignificant fact; the more important question is when appellant tied Jeff Wright’s arms and legs. As we have noted, it is not necessary that the demonstration be identical to the event in every respect. See id. at 168; Cantu, 738 S.W.2d at 266; see also Key, 192 S.W.2d at 566 (<HOLDING>). Appellant has not cited any cases, and we Holdings: 0: holding that defendants role as sole caretaker did not render circumstances extraordinary 1: holding that the principal must have control and supervision over the details of the agents work 2: holding that a fivemonth delay did not render information stale 3: holding minor differences in details of demonstration and actual event did not render reenactment substantially dissimilar 4: holding that apprendi did not render 841 unconstitutional
|
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10 . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent' all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 11 . Courts have construed this phrase and similar phrases to include both state and federal courts. See Telespectrum, Inc. v. Pub. Serv. Comm’n, 227 F.3d 414, 421 (6th Cir.2000) (concluding actions under the TCA may be filed in state or federal court); Petersburg Cellular P’ship v. Bd. of Supervisors, 205 F.3d 688, 694 (4th Cir.2000) (indicating same); see also Adams v. Maryland, 347 U.S. 179, 181—82, 74 S.Ct. 442, 445, 98 L.Ed. 608 (1954) (reasoning "any court” included state courts); Freeman Brown Co. v. Harris, 139 F. 105, 108 (4th Cir.1905) (<HOLDING>). 12 . See Brehmer v. Planning Bd., 238 F.3d Holdings: 0: holding court of competent jurisdiction includes federal courts 1: holding that a trial courts finding of a fraudulent lien must be supported by competent evidence 2: holding that when competent substantial evidence supports a trial courts ruling the appellate court will not secondguess the trial court 3: recognizing that pleadings filed in federal court while the federal court has jurisdiction become part of the state court record on remand 4: holding that federal district courts lack jurisdiction to review a final state court decision in a particular case
|
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testimony of the government’s witnesses. Unless the district court is given an opportunity to correct the error, an appellate court cannot review evidence presented at trial which casts doubt upon a pre-trial suppression motion. See United States v. Longmire, 761 F.2d 411, 420-21 (7th Cir.1985). Thomas next contends that the prosecutor misrepresented the testimony of two government witnesses and, in his closing statement, the prosecutor said that Thomas ran a "satellite office" for the E & Lite conspiracy. Because five witnesses, including one police officer, testified that Thomas sold E & Lite heroin at the Travelers' Motel as a subordinate of E. Gaston, the prosecutor did not misrepresent the trial record as a whole. See United States v. Sterling, 742 F.2d 521, 527 (9th Cir.1984) (<HOLDING>), cert. denied, 471 U.S. 1099, 105 S.Ct. 2322, Holdings: 0: holding that a plain error that is fatal to a conviction is sufficient to warrant reversal 1: holding to warrant reversal the appellant must show both the error of the ruling and resulting prejudice 2: holding that even if evidence admitted in error admission must result in material prejudice to warrant reversal 3: holding that reversal is proper only when a rule 16 violation results in prejudice to substantial rights 4: holding that prosecutorial error does not warrant reversal unless substantial prejudice results
|
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may be “used” in violation of § 924(c), not only as instruments of intimidation or enforcement, but also as tender in a barter transaction, in exchange for drugs. In Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Court held that simply possessing a firearm, without active employment, did not constitute “use” under § 924(c). Following Smith and Bailey, courts of appeals had also held that trading drugs for a firearm constituted “use” under § 924(c)(1)(A). See, e.g., United States v. Harris, 39 F.3d 1262, 1269 (4th Cir.1994) (finding defendant “used” a firearm for purposes of § 924(c) where he gave cocaine base to a compatriot in exchange for assistance in obtaining a gun); United States v. Ramirez-Rangel, 103 F.3d 1501, 1506 (9th Cir.1997) (<HOLDING>); United States v. Ulloa, 94 F.3d 949, 955 (5th Holdings: 0: holding that trading drugs for a gun violates the in furtherance of prong of 924c 1: holding that to apply the firearm enhancement the firearm need only reflect the context of the defendants possession and the defendants ability to use the firearm to promote the controlled substance offense 2: holding that trading drugs for a firearm constituted use under 924c1a 3: holding that a defendant possessed a firearm in connection with a crime when the firearm was kept in a car across the street from where the defendant was selling drugs 4: holding that to enhance a sentence because of the defendants use of a firearm the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used
|
[
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of the trial court and will be sustained’ on review absent' an abuse of discretion. Id. The State is correct that Johnson’s cooperation with the police is an insufficient statutory ground to justify the downward departure sentence. The statutory mitigating factor of cooperation is found in section 921.0026(i), Florida Statutes (2011). Cooperation requires more than a confession to .the authorities after arrest and guilty, plea. See State v. Knox, 990 So.2d 665, 668 (Fla. 5th DCA 2008). “A departure sentence is not warranted where a defendant merely “cooperated after [the] offense was discovered because that cooperation did not solve a crime.”” Id. Johnson’s cooperation did not resolve the current offenses or any other offense. See State v. White, 894 So.2d 293, 294 (Fla. 2d DCA 2Q05)(<HOLDING>). See also State v. Collins, 482 So.2d 388 Holdings: 0: holding that agents promise to inform prosecutor of defendants cooperation does not render a subsequent confession involuntary 1: holding that an officers promise to bring defendants cooperation to the attention of the prosecutor did not make confession involuntary 2: holding that confession was voluntary although agents had promised to inform prosecutor of defendants cooperation 3: holding that federal agents indication to defendant that his cooperation would be reported to the united states attorney did not make defendants confession involuntary 4: holding that cooperation was insufficient where the defendants cooperation was based on his confession to the charged crimes
|
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very approach our court adopted in Pro-Snax, concluding that it departed from the statute by imposing a “heightened standard” and requiring evaluation “by hindsight.” In re Top Grade Sausage, Inc., 227 F.3d 123, 132 (3d Cir.2000) abrogated on other grounds by Lamie, 540 U.S. 526, 124 S.Ct. 1023. Finally, the Ninth Circuit held that § 330(a)(4)(A) superseded its past precedent, which had “requir[ed] that the services actually provide an ‘identifiable, tangible and material benefit to the [debt- or’s] estate.” ’ In re Smith, 317 F.3d 918, 926 (9th Cir.2002) (quoting In re Xebec, 147 B.R. 518, 523 (B.A.P. 9th Cir.1992)). In addition, the Seventh Circuit has applied a similar rule, without specifically relying on the post-1994 guidelines. See In re Taxman Clothing Co., 49 F.3d at 314-16 (<HOLDING>). While Pro-Snax purported to consider the Holdings: 0: holding in part that the trial court abused its discretion in granting a temporary injunction in the absence of a showing that the plaintiff did not have an adequate remedy at law 1: recognizing discretion of district court in determining a fee award 2: holding that the bankruptcy court abused its discretion in granting a fee award to an attorney whose preference action did not have a reasonable likelihood of benefiting the estate 3: holding that when an attorney fee award is made under a statute that does not define reasonable the award should be determined in light of all cetreumstances emphasis added 4: recognizing court discretion in determining reasonable fee under rule 11
|
[
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"4",
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[
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the application of Blakely in Foster [therefore] di appellate counsel performed deficiently by failing to raise a Blakely claim, he could not prevail without also showing that counsel’s deficient performance prejudiced him. In this context, a showing of prejudice would require demonstrating “a reasonable probability that inclusion of the [Blakely ] issue would have changed the result of the appeal.” Benning, 345 Fed.Appx. at 158 (quoting Wilson v. Parker, 515 F.3d 682, 707 (6th Cir.2008)) (alteration in original). This requires only “a reasonable probability that the appeal would have resulted in a remand,” and does not necessarily require that “the remand would have resulted in a shorter sentence.” Ibid.; see also Carter v. Timmerman-Cooper, 380 Fed.Appx. 470, 473 (6th Cir.2010) (<HOLDING>). Under this standard, it is clear that Baker Holdings: 0: holding failure to assert blakely claim in analogous context did not result in prejudice because under ohio law at the time it is unlikely the fifth district would have remanded petitioners case 1: holding that the state court could not procedurally bar a claim through retroactive application of a rule that did not exist at the time the rule would have applied to the petitioners case 2: holding that the district judge who remanded a properly removed case where there was diversity jurisdiction exceeded statutory authority when he remanded that case based on efficiency 3: holding that blakely did not apply to a case that was final but not on direct review when blakely was decided and in which the trial court later allowed a belated appeal 4: holding blakely not retroactive
|
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as a file, URL, IP address, telephone number, television channel, radio station, application, or service.” '002 Patent, col. 10, lines 8-10. Although the term pointer is used in the field of computing, it is analogous to any tag that directs a person to an object or data located elsewhere. As the Special Master observed, “[a]n index (such as the card catalog at a library) contains pointers to information (the books stored in a systematic manner).” R & R on '081 and '002 Patents 31 (emphasis added). Thus, at its core, this patent is directed to the abstract idea of retrieving data located in another place by using a device with information that pinpoints the data’s location to facilitate its retrieval. See Bascom Research, LLC v. Facebook, Inc., 77 F.Supp.3d 940, 949-50 (N.D.Cal.2015) (<HOLDING>). This is the same idea at play when someone Holdings: 0: holding that the defrauding of different people over an extended period of time using different means and representations may constitute but one scheme 1: holding out admission to practice law when not admitted to practice 2: holding that the due process clause does not require courts to abandon their ageold practice of seeking information from outofcourt sources to guide their judgment toward a more enlightened and just sentence 3: holding that because the statute requires commerce to use data from economically comparable countries to the extent possible commerce may not employ a methodology that requires using data from both economically comparable and economically dissimilar countries in the absence of a showing that using the data congress has directed commerce to use is impossible 4: holding that the concept of establishing and using relationships between documents is a common ageold practice that is not meaningfully different from classifying and organizing data
|
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were screen captures of the chat, including an image of an adult male masturbating. Moreover, the application explained that records obtained from the Internet provider identified Gentles as the Internet service account holder. From this information, the issuing judge could reasonably infer that the federal agent subpoenaed information related to the suspect’s IP address and that Gentles, as the account holder, probably was the adult male engaged in the unlawful online activity described in the application. Because the items listed in the search warrant— computers, webcams, and other electronic media and storage devices—generally are kept in one’s home, it follows that probable cause existed to search Gentles’s home. See United States v. Cowling, 648 F.3d 690, 696 (8th Cir. 2011) (<HOLDING>); United States v. McArthur, 573 F.3d 608, Holdings: 0: holding that probable cause existed to search the defendants residence because the warrant affidavit established probable cause that the defendant possessed stolen firearms and because people generally keep firearms at home or on their persons 1: holding warrant valid where search warrant application affidavit was signed and probable cause existed for issuance of warrant 2: holding that where other evidence established probable cause to believe that the defendant possessed controlled substances investigating officers had probable cause to search the defendants purse for similar evidence 3: holding warrant was overbroad when probable cause existed to search for a pistol but warrant permitted search and seizure of all firearms and ammunition 4: holding that a controlled buy at a particular home provided probable cause for the search of that residence
|
[
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any felony defined by Illinois law. 96 Ill.App.3d at 724, 52 Ill.Dec. at 327, 422 N.E.2d at 8 (quoting Ill.Rev.Stat. ch. 38, para. 33A-2 (1978)). The court held that “where the commission of an underlying offense is a requisite for the commission of a second offense, the information must also contain the elements of the underlying offense.” Id. at 725, 52 Ill.Dec. at 328, 422 N.E.2d at 9. Some jurisdictions that require that the specific underlying offense be identified in the charge, however, do not require that all the elements of the underlying felony itself be alleged, as mandated in Miles. The courts instead require only that the specific underlying felony be identified by name or statutory reference. See, e.g., State v. Hartz, 65 Wash.App. 351, 354-55, 828 P.2d 618, 620-21 (1992) (<HOLDING>); Demouchette v. State, 591 S.W.2d 488, 490 Holdings: 0: holding error is not harmless when the accused is convicted of firstdegree murder on a general verdict after a trial in which premeditation and felony murder theories are espoused if the felony underlying the felony murder charge is based on a legally unsupportable theory 1: holding that for facilitation of a felony the state must prove the commission of a specified felony and the assistance the accused gave to the person committing the specified felony 2: holding that reversal of conviction for felony murder was required where jury failed to find the defendant guilty of the underlying felony as essential element of the felony murder offense 3: holding that although the specific underlying felony is an essential element of felonymurder the government is not required to include the elements of the underlying felony or state the specific means by which it alleges the defendant committed the underlying felony 4: holding that proof of an agreement to commit a felony is not a necessary element in a conviction for the commission of the felony
|
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methamphetamine and five counts of distribution of methamphetamine. Herrera now appeals his conviction and sentence. This court has jurisdiction pursuant to 28 U.S.C. § 1291 (appeal of a final decision of a district court); and 18 U.S.C. § 3742(a) (appeal of a final decision regarding a sentence). For the following reasons the conviction is affirmed. Familiarity with the facts is assumed. I. Entrapment Instruction Herrera claims that the district court did not adequately instruct the jury on his theory of the case, namely sentencing entrapment. Sentencing entrapment “occurs when ‘a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment.’ ” United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir.1994) (<HOLDING>) (quoting United States v. Stuart, 923 F.2d Holdings: 0: holding that explanation that sentencing judge was persuaded by the arguments at the hearing and in the sentencing memos that he should not depart downward from the guidelines range was sufficient 1: holding that a circuit court has no jurisdiction to review a district courts discretionary decision not to depart downward from the guidelines but would have jurisdiction if the district court based its decision on the belief that it did not have the authority to depart 2: holding that sentencing entrapment was a valid reason to downwardly depart under the guidelines 3: holding defendant sentenced to term equal to maximum guidelines sentence under improperly calculated sentencing guidelines scoresheet was not entitled to be resentenced because defendant was habitualized such that sentencing guidelines score sheet was irrelevant and the sentence imposed was not illegal 4: holding that a district court must notify the parties that it intends to upwardly depart from the sentencing range established by the sentencing guidelines
|
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costs because it used the contract’s incorrect prevailing wage schedules, which the City’s bid documents designated, in calculating its bid for the project and determining its lump sum contract price for the project. According to SES, the City’s breach — i.e., specifying the incorrect rate in the bid documents — caused these damages. SES offered evidence that its representatives relied on the incorrect rate in formulating SES’s bid on the project. It also offered damage models showing the difference between its actual costs and the costs it would have incurred had the rate been capped by the allegedly correct ot make the City a guarantor that an employer hires employees at that rate. See United States v. Binghamton Constr. Co., 347 U.S. 171, 178, 74 S.Ct. 438, 442, 98 L.Ed. 594 (1954) (<HOLDING>). According to section 1.2.2 of the contract, Holdings: 0: holding that the proper rate for prejudgment interest is the rate fixed by the parties in a contract 1: holding that federal prevailing wage rate statutes requirement that contractor pay not less specified minima presupposes possibility that successful bidder may have to pay higher rate to workers and that bidders reliance on governments representation of prevailing rate in computing its bid cannot be said to have been justified 2: holding that with respect to the eaja the local or national market rate for legal services cannot be a special factor used to increase the rate beyond the statutory rate 3: holding that the purpose of predecessor texas wage rate statute was to ensure that workers on public projects receive not less than prevailing rate 4: holding that once a rate is filed with the appropriate agency except for review of the agencys orders the courts can assume no right to a different rate on that ground that in its opinion it is the only or the more reasonable rate
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[
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