U.S. Court of Appeals, 8th Circuit Case Summaries: December 15, 2011 [Missouri Lawyers Media]

Civil Rights

False Arrest - Probable Cause - Defamation (1)Where a man, who was arrested for running an illegal lottery, brought claims of false arrest, excessive force and unlawful search against an arresting officer and other defendants, the officers involved had at least arguable probable cause for the arrest, and the man's minor injuries from handcuffs could not give rise to an excessive force claim, so the man did not show that any of the officer's actions violated a constitutional right, so summary judgment for the defendant was appropriate. (2)Where a man, who was arrested for allegedly running an illegal lottery, brought defamation claims against a reporter and news station after they broadcast a story about him, the district court properly concluded that the man was a limited purpose public figure, and the plaintiff did not show that the defendants exhibited a reckless disregard for the truth, so summary judgment for the defendants is affirmed. Judgment is affirmed. Stepnes v. Ritschel, et al. (MLW No. 63063/Case No. 11-1381 - 16 pages) (U.S. Court of Appeals, 8th Circuit, Murphy, J.) Appealed from U.S. District Court, District of Minnesota, Montgomery, J. (Jill Eleanor Clark, Golden Valley, Minnesota, argued for appellant) (James Anthony Moore, Minneapolis, and Michael Dennis Sullivan, Washington, D.C., argued for appellees; John Philip Borger, Mary A. Walker, Jeanette Melendez Bead, Chad R. Bowman and Michael D. Sullivan appeared on the brief).

Contracts

Breach Of Contract - Construction Delays - Liquidated DamagesWhere a general contractor sued a developer for breach of contract following delays on an apartment construction project, the district court properly exercised its discretion in excluding evidence of other construction projects, and because the parties' agreement was unclear about how many buildings should be used to measure liquidated damages, the court properly submitted the issue to the jury.Judgment is affirmed. The Weitz Company v. MacKenzie House, LLC, et al. (MLW No. 63060/Case No. 10-3713 - 11 pages) (U.S. Court of Appeals, 8th Circuit, Benton, J.) Appealed from U.S. District Court, Western District of Missouri, Smith, J. (Andrew M. DeMarea, Overland Park, Kansas, argued for appellant; William E. Quirk and Heber O. Gonzalez appeared on the brief) (Robin K Carlson, and James Scott Kreamer, Kansas City, Missouri, argued for appellees; Michael E. Callahan,Dylan L. Murray and Barry L. Pickens appeared on the briefs).

Criminal Law

Constructive Possession - Interpreter Credibility - Drug Charges(1)Where officers witnessed a defendant in a marijuana manufacturing case working with marijuana in a tent in which a rifle was found, a co-conspirator testified that the defendant was in charge of the operation and kept the gun for protection, and the defendant admitted knowing about the rifle although he said it was to shoot deer, sufficient evidence established the defendant's constructive possession of the rifle. (2)Where a defendant convicted on drug and weapon charges challenged the accuracy of an interpreter's translation of his statements, the defendant challenged the interpreter's abilities on cross examination and the jury was not convinced, so the district court did not err in denying the defendant's motion for acquittal or new trial. Judgment is affirmed. U.S. v. Perez (MLW No. 63056/Case No. 11-1747 - 11 pages) (U.S. Court of Appeals, 8th Circuit, Smith, J.) Appealed from U.S. District Court, Western District of Missouri, Fenner, J. (Phillip R. Gibson, Blue Springs, argued for appellant) (Justin G. Davids, Kansas City, Missouri, argued for appellee).

Criminal Law

Evidentiary Rulings - Sufficiency of Evidence - Sentencing (1)Where a district court allowed the admission of voice messages that a defendant left with a sheriff's office, the messages were probative of the defendant's ability to exercise control and dominion over guns, and the court mitigated any prejudice by not admitting all of the messages, so the court did not abuse its discretion in admitting the message, and the conviction is affirmed over the defendant's challenge to the sufficiency of the evidence. (2)Where a district court found that a defendant had access to a gun safe and therefore possessed multiple firearms, the court did not err in applying a sentence enhancement, and the court did not abuse its discretion in finding that a sentence of probation would be inappropriate. Judgment is affirmed. U.S. v. Augustine (MLW No. 63064/Case No. 11-2118 - 9 pages) (U.S. Court of Appeals, 8th Circuit, MelloyU.S. District Court, Southern District of Iowa, Gritzner, J. (Chad Douglas Primmer, Council Bluffs, Iowa, argued for appellant) (Mary Clare Luxa, Des Moines, Iowa, argued for appellee).

Criminal Law

Fraud - Witness Security Program - Public Trial(1)Where a defendant in a mail and wire fraud case argued that his Sixth Amendment rights were violated when the district court sealed a file on a cooperating witness from the Witness Security Program, the information in the file was collateral to the crimes charged in the indictment, so admission would have confused the issues presented to the jury, and defense counsel could still attack the credibility of the witness through cross examination by showing that he participated in multiple fraud schemes and cooperated with the government to receive leniency, and the court also did not violate the defendant's confrontation rights by limiting cross examination regarding some of the past criminal acts of the witness. (2)Where a defendant argued that sealing a witness protection file and limiting reference to the witness in a pretrial hearing deprived him of his right to a public trial, even if the prohibition of use of the name of the witness constituted a partial closing, the government's interest in the integrity of the witness protection program and the safety of the witness and his family justified the restrictions, and use of the name was tangential to the issues at the hearing, so the defendant did not suffer a Sixth Amendment violation, and the convictions are affirmed over the defendant's allegations of instructional error. (3)Where a district court found that media coverage of a trial had died down substantially after an initial frenzied period and jury questionnaires showed that only a small number of venire members had formed an opinion on guilt, the defendant was not entitled to a presumption of prejudice, so the court did not abuse its discretion in denying a motion for change of venue.Judgment is affirmed. U.S. v. Petters (MLW No. 63058/Case No. 10-1843 - 16 pages) (U.S. Court of Appeals, 8th Circuit, Shepherd, J.) Appealed from U.S. District Court, District of Minnesota, Kyle, J. (Jon M. Hopeman, Minneapolis, argued for appellant; Paul C. Engh, Eric Riensche and Jessica Molyneaux Marsh appeared on the brief) (Joseph T. Dixon III, Minneapolis, argued for appellee; John R. Marti and Timothy C. Rank appeared on the brief).

Criminal Law

Habeas Relief - Effectiveness of CounselWhere a defendant in an attempted murder and kidnapping case argued that his counsel was ineffective because he failed to understand the extent of the victim's injuries or the effect of long-term, intravenous methamphetamine use, the defendant failed to establish that the Iowa Court of Appeals unreasonably applied the Strickland test when it rejected his claim that he suffered prejudice from his trial counsel's ineffective assistance or that the Iowa court unreasonably found that there was sufficient evidence to prove serious injury, so the district court properly denied habeas relief. Judgment is affirmed. Hanegan v. Miller (MLW No. 63061/Case No. 10-3182 - 10 pages) (U.S. Court of Appeals, 8th Circuit, Wollman, J.) Appealed from U.S. District Court, Southern District of Iowa, Longstaff, J. (Kent Allen Simmons, Davenport, Iowa, argued for appellant) (Richard J. Bennett, Des Moines, Iowa, argued for appellee).

Criminal Law

Habeas Relief - Effectiveness of Counsel - Competency Where a defendant in a murder case challenged a finding that he was competent to stand trial, the trial court and the Missouri Court of Appeals applied clearly established competency standards, and the state courts' resolution of the defendant's claim of deficient performance is also affirmed, so the district court did not err in denying habeas relief. Judgment is affirmed. Elam v. Denney (MLW No. 63059/Case No. 10-3465 - 12 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, Western District of Missouri, Kays, J. (Kent E. Gipson, Kansas City, Missouri, argued for appellant) (Andrew W. Hassell, Jefferson City, argued for appellee).

Criminal Law

Habeas Relief - Evidentiary Rule - Exculpatory EvidenceWhere a defendant in a capital murder case argued that he was unconstitutionally deprived of a meaningful opportunity to present a complete defense because allegedly exculpatory evidence was excluded under a state rule, the denial of the defendant's petition for habeas relief is affirmed because the defendant did not show that the decision was contrary to, or an unreasonable application of, clearly established federal law.Judgment is affirmed. Armstrong v. Hobbs (MLW No. 63055/Case No. 11-1049 - 10 pages) (U.S. Court of Appeals, 8th Circuit, Melloy, J.) Appealed from U.S. District Court, Eastern District of Arkansas, Miller, J.(Terrence Cain, Little Rock, Arkansas, argued for appellant) (Lauren E. Heil, Little Rock, Arkansas, argued for appellee; Christian Harris appeared on the brief).

Criminal Law

Seizure - Investigatory Stop - Methamphetamine Odor Where a defendant argued that his seizure by officers violated the Fourth Amendment because he had already re-entered his home when officers ordered him to stop after they smelled methamphetamine odor, the district court's factual determination that the defendant was outside when he was seized was a permissible view of the evidence, and the officers' observations, including the pervasive smell, and his experience supported a reasonable suspicion of criminal activity, so the evidence discovered and statements made were admissible. Judgment is affirmed. U.S. v. Bay (MLW No. 63066/Case No. 10-3262 - 5 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, Eastern District of Missouri, Jackson, J. (Sanford Jay Boxerman, St. Louis, argued for appellant) (Sirena Miller Wissler, St. Louis, argued for appellee).

Criminal Law

Sentencing - Enhancement - Crimes Of Violence Where a defendant challenged the enhancement of his sentence in an unlawful re-entry case, the district court did not err in concluding that his prior convictions were for crimes of violence.Judgment is affirmed. U.S. v. Salido-Rosas (MLW No. 63065/Case No. 11-2379 - 5 pages) (U.S. Court of Appeals, 8th Circuit, Riley, C.J.) Appealed from U.S. District Court, District of Nebraska, Smith Camp, J. (Richard Haile McWilliams, Omaha, Nebraska, argued for appellant) (Christopher L. Ferretti, Omaha, Nebraska, argued for appellee).

Criminal Law

Sentencing - Sufficiency Of Evidence - Drug Conspiracy (1)Where a defendant convicted of drug conspiracy charges argued that witnesses who testified against him were not credible because they hoped to gain lighter sentences for themselves, the jury was made aware of the possible biases and motives of the witnesses, and the testimony was sufficient to establish the existence of a conspiracy and to support the charge of the defendant's involvement in distribution of the drug. (2)Where testimony established that a defendant received reports of the actions and whereabouts of other members of a drug conspiracy and that he supervised at least one other person, the district court properly applied a leadership enhancement to the defendant's sentence, and the defendant did not show that his sentence was grossly disproportionate to his crimes. (3)Where a defendant involved in a drug conspiracy argued that he was less culpable than other participants and that he could not comprehend the extent of the conspiracy because he could not read, write or speak English, the district court did not err in denying the defendant a reduction to reflect his minor role because the court relied on evidence that he was deeply involved in the conspiracy. Judgment is affirmed. U.S. v. Rodriguez-Ramos; U.S. v. Robles- Garcia (MLW No. 63062/Case No. 10-3769/11-1019 - 15 pages) (U.S. Court of Appeals, 8th Circuit, Shepherd, J.) Appealed from U.S. District Court, Northern District of Iowa, Bennett, J. (Priscilla E. Forsyth, Sioux City, Iowa, and Evans D. Prieston, Novato, California, argued for appellants) (Robert Knief, Sioux City, Iowa, argued for appellee).

Criminal Law

Sentencing - Substantive Reasonableness - Consecutive Sentences (1)Where evidence supported a finding that a defendant, convicted of a conspiracy to make false statements, instructed others to lie about what happened to a 14-year-old girl in her care, any error in applying a two-level sentencing enhancement for the defendant's role in the offense was harmless, and there was no procedural error in the district court's decision to vary up to the statutory maximum for each count or in running the 60-month sentences consecutively for the "appropriate total punishment." (2)Where a district court explained that a 120-month sentence in a false-statements case was appropriate because the defendant's lie was about a very brutal crime, which would have gone undetected except for the persistence of a witness, and the court found that the circumstances of the crime were not typical but were particularly egregious, the sentence is affirmed as substantively reasonable.

Substantive reasonableness Dissenting opinion by Bye, J.: "I am of the opinion the court imposed the sentence it did to supplant what it perceived to be an inadequate state sentence for a second- degree murder. But Richart was before the district court awaiting sentencing for her federal offenses. She was not before the court to be sentenced, for the second time, for her state conviction. Accordingly, by fixating on its perceived inadequacy of Richart's state sentence -- a factor not listed in section 3553(a)-- the district court gave significant weight to an improper factor and, thus, abused its discretion."Judgment is affirmed. U.S. v. Richart (MLW No. 63057/Case No. 10-1977 - 31 pages) (U.S. Court of Appeals, 8th Circuit, Melloy, J.) Appealed from U.S. District Court, Eastern District of Arkansas, Wright, J. (Angela Lorene Pitts, Fayetteville, Arkansas, argued for appellant) (Patrick C. Harris, Little Rock, Arkansas, argued for appellee).

Insurance

Directors Policy - Assignment Agreement - 'Absolved From Payment'Where a trust, which held a $56 million judgment against a corporate debtor's former officer, sought to collect from insurers under director and officer policies that named the officer as an insured, the policy expressly excluded from the definition of "loss" amounts "not indemnified by the Insured Organization for which the Insured Person is absolved from payment by reason of any agreement," so the assignment agreement absolved the officer from payment, and the district court properly dismissed the trustee's complaint. Judgment is affirmed. U.S. Bank National Association v. Federal Insurance Company, et al. (MLW No. 63054/Case No. 10-3472 - 13 pages) (U.S. Court of Appeals, 8th Circuit, Melloy, J.) Appealed from U.S. District Court, Western District of Missouri. (William Zane Pentelovitch, Minneapolis, argued for appellant) (Daniel J. Standish, Washington, D.C., argued for appellee).

Intellectual Property

Trade Secrets - Engine Overhaul Documents Where plaintiff, a developer of helicopter engines, brought an action against an engine overhaul shop for alleged trade secret violations, the district court found that information letters possessed by the defendant were compilations of publicly available information and new proprietary information, and the plaintiff established that the documents had a value independent of the older versions and that it made reasonable efforts to maintain secrecy, so the court did not err in granting an injunction in favor of the plaintiff, and the court also did not err in dismissing the defendant's antitrust claims and in finding that the defendant failed to establish tortious interference. Judgment is affirmed. AvidAir Helicopter Supply, Inc. v. Rolls-Royce Corporation (MLW No. 63053/Case No. 10-3444 - 14 pages) (U.S. Court of Appeals, 8th Circuit, Melloy, J.) Appealed from U.S. District Court, Western District of Missouri, Smith, J. (Edward A. McConwell Sr., Mission, Kansas, argued for appellant; Laura McConwell appeared on the brief) (Alastair J. Warr, Indianapolis, Indiana, argued for appellee; Libby Y. Goodknight, and Jason A Houdek appeared on the brief).