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Crime
[09/04] Man accused of making license plate 'disappear'
[09/04] Alleged thief leaves giveaway clue - his signature
[09/04] Neb. man sues prosecutor to get his leg back
[09/03] Cross-dressing thief leaves fake breast behind
[09/03] Jaywalker allegedly moons motorists after ticket
[09/03] 8-foot mechanical ape missing, owner mystified
[09/02] Police fooled by life-sized doll
[09/02] Police fooled by life-sized doll
[08/22] Typo fixers get probation for damaging rare sign
[08/21] Wis. woman arrested, booked over library fines
[08/21] Fla. deputies Taser Plop-Plop the unruly emu
[08/21] Man arrested just 12 hours after release from jail
[08/21] Illinois sheriff does jail time - voluntarily
[08/19] Armed 85-year-old woman makes intruder call cops
[08/18] It's an open case: Who's stealing manhole covers?
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White Collar Crime
[08/15] Detroit mayor to stand trial on assault charges
[08/15] Shanghai official gets death sentence for bribery
[08/14] Judge lets Detroit mayor go to Democrat convention
[08/14] Taiwan's Chen: I broke the law
[08/12] Judge rules Detroit mayor didn't violate bond
[08/12] Imprisoned ex-Ohio congressman to be released
[08/12] Mukasey: No prosecutions in Justice hiring scandal
[08/11] Mich. AG: Detroit mayor violated bail terms again
[08/11] Feds descend on New Orleans nonprofit corporation
[08/11] Lawmaker's aide pleads guilty in Pa. corruption
[08/11] Ousted Thai PM issued arrest warrant after fleeing
[08/11] CFTC establishes task force on currency fraud
[08/08]
[08/07]
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Case Summaries


Securities Law

[09/05] Sindecuse v. Katsaros
In a case alleging common law fraud surrounding a stock purchase, grant of summary judgment in favor of defendant is affirmed where the allegedly fraudulent statements could not support claims of fraud because they were: 1) predictions of the future; and 2) a promise of future action not accompanied by a present intent not to perform.

[09/02] Sec. and Exch. Comm'n v. Wolfson
In a civil enforcement action in which the SEC alleged that defendants violated section 10(b) of the Securities and Exchange Act of 1934 and section 17(a) of the Securities Act of 1933 in relation to material misstatements and omissions contained within a public company's periodic financial reports filed with the SEC, summary judgment for plaintiff is affirmed where: 1) the SEC need not establish that specific misstatements or omissions in a financial report can be publicly attributed to an individual defendant in order to prove liability for a violation; 2) because defendants caused misstatements and omissions to be made, and knew that the statements were calculated to reach investors, they could be held liable; 3) fraudulent statements are made "in connection with" the sale of securities when they are reasonably calculated to influence investors, and the misrepresentations are material to an investor's decision to buy or sell the security; and 4) the misstatements or omissions made by defendant occurred "in the offer or sale" of securities.

[08/29] Commodity Futures Trading Comm'n v. Levy
Judgment finding defendant liable for multiple acts of solicitation fraud and imposing sanctions against him is affirmed over claims that the court erred in: 1) multiplying the maximum civil monetary penalty for which defendant was liable by the number of "violations" proved at trial, rather than by the number of "counts" alleged in the complaint; 2)imposing a $600,000 civil monetary penalty against defendant; 3) awarding restitution to the extent of defendant's customers' losses; 4) including in the restitution award $30,000 invested by his customers prior to their interactions with defendant; and 5) freezing his assets pending satisfaction of the judgment. The matter is remanded as to district court's award of restitution based on the amount of the victims' losses rather than on defendant's ill-gotten gains.

[08/28] US v. Stein
Dismissal of indictment of thirteen former partners of the accounting firm KPMG for creating fraudulent tax shelters is affirmed where: 1) the government deprived defendants of their right to counsel under the Sixth Amendment by causing KPMG to place conditions on the advancement of legal fees to defendants, and to cap the fees and ultimately end them; 2) the government failed to cure the Sixth Amendment violation; and 3) no other remedy will return defendants to the status quo ante.

[08/26] Brady v. UBS Fin. Servs., Inc.
In a suit brought against one company and another which plaintiff contended was its alter ego for payment on certain bonds issued by defendant, dismissal of the claims is reversed where: 1) plaintiff acquired a right to sue on the Stated Maturity of his bond and that remedy was not time barred; and 2) furthermore, plaintiff's claims are not barred by res judicata.

[08/26] Ley v. Visteon Corp.
In a class action securities violation case, dismissal of the action is affirmed where: 1) plaintiffs failed to allege a misrepresentation or omission of material fact regarding claims arising from a spin-off; 2) plaintiffs failed to allege a strong inference of scienter regarding claims arising from a Restatement filed with the SEC; 3) plaintiffs failed to allege a strong inference of scienter on the part of defendant-CPA firm, and thus dismissal of a section 10(b) claim was appropriate; and 4) dismissal of plaintiffs' section 20(a) claim was proper as there was no predicate violation of the securities laws.

[08/25] W. Filter Corp. v. Argan, Inc.
In a contract and tort action arising from the parties' execution of a Stock Purchase Agreement (SPA), summary judgment for defendant on limitations grounds is reversed where a provision within the SPA permitting the representations and warranties of the parties to survive closing did not unambiguously state the parties' intent to contractually reduce the applicable California statute of limitation to one year.

[08/22] Whistler Invs., Inc. v. Depository Trust & Clearing Corp.
In an action raising claims against registered clearing agencies in connection with their clearance and settlement services, which were performed pursuant to a program approved of by the SEC, dismissal of the action is affirmed where each of plaintiff's 22 claims amounted to challenges to the rules and operation of the Stock Borrow Program and, as such, conflicted with and were preempted by federal securities law.

[08/22] Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.
In a facial challenge to the constitutionality of Title I of the Sarbanes-Oxley Act, asserting that it violates the Appointments Clause and separation of powers because it does not permit adequate presidential control of the Public Company Accounting Oversight Board, summary judgment for defendants is affirmed where: 1) Sarbanes-Oxley does not encroach upon the appointment power because, in view of the Securities and Exchange Commission's (SEC) comprehensive control of the Board, Board members are subject to direction and supervision of the SEC and thus are inferior officers not required to be appointed by the President; and 2) the for-cause limitations on the SEC's power to remove Board members and the President's power to remove Commissioners do not strip the President of sufficient power to influence the Board, and thus do not contravene separation of powers.

[08/22] Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.
In a facial challenge to the constitutionality of Title I of the Sarbanes-Oxley Act, asserting that it violates the Appointments Clause and separation of powers because it does not permit adequate presidential control of the Public Company Accounting Oversight Board, summary judgment for defendants is affirmed where: 1) Sarbanes-Oxley does not encroach upon the appointment power because, in view of the Securities and Exchange Commission's (SEC) comprehensive control of the Board, Board members are subject to direction and supervision of the SEC and thus are inferior officers not required to be appointed by the President; and 2) the for-cause limitations on the SEC's power to remove Board members and the President's power to remove Commissioners do not strip the President of sufficient power to influence the Board, and thus do not contravene separation of powers.

[08/19] Joyce v. Morgan Stanley & Co., Inc.
In a suit by shareholders of a telecommunications company alleging that defendant, while advising the company during its acquisition by another company, failed to advise plaintiffs on minimizing their exposure to financial losses, grant of a motion to dismiss is affirmed in part and vacated and remanded in part where: 1) plaintiffs were bringing a direct action on their own behalf, not a derivative one on behalf of the corporation, and to that extent had standing; but 2) plaintiffs' constructive fraud claim required them to allege that defendant owed them a fiduciary duty, but no such duty never arose.

[08/19] In Re: Nortel Networks Corp. Securities Litig.
In a matter involving attorneys' fees following settlement of a private securities class action, judgment awarding 3% of the class's recovery to class counsel rather than the requested 8.5% is affirmed where: 1) appellant has waived its argument that the Private Securities Litigation Reform Act altered the fee-award scheme for cases covered by the Act by failing to present this argument to the district court; and 2) the district court did not abuse its discretion in awarding a reasonable fee under established precedent.

[08/15] CA Inc. v. AFSCME Employees Pension Plan
Two certified questions, arising from an action before the SEC to determine whether respondent-shareholders' proposed bylaw requiring reimbursement of proxy expenses should be included in petitioner-corporation's annual proxy materials, are answered affirmatively where: 1) respondents' proposal was a proper subject for action by shareholders; and 2) the proposal, if adopted, would cause petitioner to violate state law because it would in some cases curtail the directors' ability to fully exercise their fiduciary duties. (Republished Opinion)

[08/12] Dorsey v. Portfolio Equities, Inc.
Dismissal of a complaint alleging fraud arising from defendants' sale of promissory notes to finance investment schemes is affirmed in part and reversed in part where: 1) plaintiff did not plead his federal securities-fraud claims with sufficient particularity; 2) the Texas Business and Commerce Code's fraud provisions applied only to real estate and stock transactions; but 3) plaintiff's pleadings were sufficient to state common-law fraud and securities fraud claims under state law.

[08/12] Sec. & Exch. Comm'n v. M&A W. Inc.
In an SEC enforcement action arising from the activities of a company described as a "sham incubator for startup companies", summary judgment ruling against defendant is affirmed in part and reversed and remanded in part where: 1) the district court correctly found that defendant was an underwriter under section 2(11) of the Securities Act of 1933, and therefore not exempt from the the Act's registration requirements; 2) it did not err in ordering that defendant disgorge all profits, with interest, he obtained from certain transactions; but 3) genuine issues of material fact precluded summary judgment as to the imposition of certain civil sanctions.
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Criminal Law & Procedure

[09/05] US v. Bendtzen
In a case challenging an enhanced sentence under the U.S. Sentencing Guideline Manual, sentence is affirmed where use of a fake bomb during a bank robbery constitutes "a dangerous weapon. . .otherwise used" and thus a four level sentence increase under U.S.S.G. section 2B3.1(b)(2)(D) and consideration of defendant's past crimes was not unreasonable in calculating a category VI criminal history.

[09/05] US v. Nader
In prosections related to a prostitution ring, convictions for violations of the Travel Act are affirmed where: 1) the convictions were based on telephone calls within a single state; and 2) the telephone is a facility in interstate commerce even when used for in-state calling.

[09/05] US v. Medina-Beltran
In an immigration case, an enhanced sentence is affirmed where: 1) the government's decision not to move for reduced sentencing was not arbitrary; and 2) separation of powers between the judicial and executive branches is not violated by section 401(g) of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, which requires the government to make a motion in order for a defendant to receive a reduced sentence under the U.S. Sentencing Guidelines.

[09/05] US v. Ault
In a case challenging enhanced sentencing based on misdemeanors in which defendant was unrepresented, the sentence imposed is affirmed as not violating the Sixth Amendment right to counsel where: 1) two of the four misdemeanors considered did not include incarceration; and 2) plaintiff waived counsel in the remaining two misdemeanor matters.

[09/05] Barnett v. Roper
Denial of a petition for habeas corpus is affirmed where: 1) the Missouri procedural rule requiring sufficient pleading before granting an evidentiary hearing on ineffective assistance of counsel constituted independent and adequate state grounds barring federal review; 2) there was no clear and convincing evidence of discriminatory intent in jury selection; and 3) the prosecutor's comments at trial did not deny defendant due process.

[09/05] US v. Wecht
In a trial accusing a public official of misusing his office for private financial gain, denial of motion to dismiss indictment on double jeopardy grounds is affirmed, and case remanded for reassignment to a different judge, where: 1) the declaration of a mistrial due to a deadlocked jury was procedurally flawed; 2) a violation of Fed. R. Crim. P. 26.3 lessens the degree of deference accorded to a district court's finding of manifest necessity of a mistrial; but 3) an analysis of the factors for consideration of declaration of a mistrial contained in Comment 9.06 of the model criminal jury instructions supported the conclusion that there was manifest necessity to declare a mistrial in this case.

[09/05] Smiley v. Thurmer
In a first-degree murder case, grant of a petition for habeas relief is affirmed where: 1) the police who arrested petitioner failed to give proper Miranda warnings; and 2) admission of statements made after the failure to Mirandize was prejudicial to petitioner.

[09/05] US v. Allday
Sentence for receiving sexually explicit images of minors is affirmed over objections that the district court impermissibly applied a presumption of reasonableness to the sentencing range calculated under the guidelines.

[09/05] Carvajal v. Dominguez
In a suit alleging constitutional violations by a DEA officer in connection with the criminal prosecution of plaintiff for money laundering, denial of summary judgment for defendant on one of four claims is reversed where: 1) the denial of defendant's claim of qualified immunity was an appealable collateral order; and 2) defendant committed no Brady violation and was therefore entitled to qualified immunity.

[09/05] US v. Reyes
Convictions for conspiracy, bank robbery, and a handgun crime are affirmed where: 1) evidence of prior bank robberies in which defendant had participated was erroneously admitted, but the error was harmless; 2) limitations on defendant's cross-examination of a government witness did not violate the Confrontation Clause; and 3) a motion for new trial on the basis of newly-discovered evidence was properly denied where the new evidence proffered would not have affected the verdict.

[09/05] US v. Moore
Sentences for unrelated crack cocaine offenses are affirmed where: 1) the courts properly determined that they lacked authority under 18 U.S.C. section 3582(c)(2) to grant the requested sentence reductions in these cases; 2) when a retroactively applicable guideline amendment reduces a defendant's base offense level, but does not alter the sentencing range upon which his or her sentence was based, section 3582(c)(2) does not authorize a reduction in sentence; and 3) although Amendment 706 to the Sentencing Guidelines would reduce the base offense levels applicable to the defendants, it would not affect their guideline ranges because they were sentenced as career offenders under U.S.S.G. section 4B1.1.

[09/05] US v. Schwartz
Convictions for offenses committed in carrying out a fraudulent scheme to sell high-yield promissory notes issued by defendants' companies to individual investors, are affirmed in part and vacated in part where: 1) the district court committed a Bruton violation when it permitted the prosecutor to introduce into evidence an out-of-court statement by codefendant that implicated him in most, if not all, of the charged offenses; and 2) the admission of codefendant's affidavit, and the indispensable role it played in the prosecutor's closing argument to the jury, was not harmless beyond a reasonable doubt.

[09/04] Jones v. State of Florida
In a capital-murder case, denial of postconviction relief is affirmed and petition for writ of habeas corpus denied over claims of error regarding: 1) Brady and Giglio violations by prosecutors; 2) counsel's failure to present mitigation evidence during the penalty phase; 3) summary denial of two additional ineffective assistance of counsel claims; 4) the constitutionality of Florida's capital sentencing scheme; 5) improper burden-shifting during the penalty phase; and 6) the advisory nature of the penalty phase jury verdict.

[09/04] People v. Castagne
In a conviction for unlawfully possessing methamphetamine, sentence finding defendant ineligible for probation is reversed where: 1) record does not establish that defendant's acts and omissions evinced a complete refusal to undergo treatment; and 2) facts in the present case are subject to conflicting inferences and the lower court never considered the question whether defendant demonstrated a complete refusal to undergo drug treatment.

[09/04] US v. Garcia-Alvarez
Conviction for carjacking and firearms offenses is affirmed over claims of error that: 1) the evidence proffered against defendant was not sufficient; and 2) the district court erred in denying defendant's motion for a new trial.
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Sentencing

[09/05] US v. Bendtzen
In a case challenging an enhanced sentence under the U.S. Sentencing Guideline Manual, sentence is affirmed where use of a fake bomb during a bank robbery constitutes "a dangerous weapon. . .otherwise used" and thus a four level sentence increase under U.S.S.G. section 2B3.1(b)(2)(D) and consideration of defendant's past crimes was not unreasonable in calculating a category VI criminal history.

[09/05] US v. Medina-Beltran
In an immigration case, an enhanced sentence is affirmed where: 1) the government's decision not to move for reduced sentencing was not arbitrary; and 2) separation of powers between the judicial and executive branches is not violated by section 401(g) of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, which requires the government to make a motion in order for a defendant to receive a reduced sentence under the U.S. Sentencing Guidelines.

[09/05] US v. Ault
In a case challenging enhanced sentencing based on misdemeanors in which defendant was unrepresented, the sentence imposed is affirmed as not violating the Sixth Amendment right to counsel where: 1) two of the four misdemeanors considered did not include incarceration; and 2) plaintiff waived counsel in the remaining two misdemeanor matters.

[09/05] US v. Allday
Sentence for receiving sexually explicit images of minors is affirmed over objections that the district court impermissibly applied a presumption of reasonableness to the sentencing range calculated under the guidelines.

[09/05] US v. Moore
Sentences for unrelated crack cocaine offenses are affirmed where: 1) the courts properly determined that they lacked authority under 18 U.S.C. section 3582(c)(2) to grant the requested sentence reductions in these cases; 2) when a retroactively applicable guideline amendment reduces a defendant's base offense level, but does not alter the sentencing range upon which his or her sentence was based, section 3582(c)(2) does not authorize a reduction in sentence; and 3) although Amendment 706 to the Sentencing Guidelines would reduce the base offense levels applicable to the defendants, it would not affect their guideline ranges because they were sentenced as career offenders under U.S.S.G. section 4B1.1.

[09/04] Jones v. State of Florida
In a capital-murder case, denial of postconviction relief is affirmed and petition for writ of habeas corpus denied over claims of error regarding: 1) Brady and Giglio violations by prosecutors; 2) counsel's failure to present mitigation evidence during the penalty phase; 3) summary denial of two additional ineffective assistance of counsel claims; 4) the constitutionality of Florida's capital sentencing scheme; 5) improper burden-shifting during the penalty phase; and 6) the advisory nature of the penalty phase jury verdict.

[09/04] Rodriguez v. Smith
In a habeas corpus case challenging US Bureau of Prison (BOP) regulations, an order granting habeas corpus and directing the BOP to immediately consider transferring petitioner to a Residential Re-Entry Center (RRC) is affirmed because BOP regulations allowing prisoner transfer to RRCs only in the final ten percent of their sentences violate Congressional intent that the BOP is authorized to transfer prisoners at any time.

[09/04] Cox v. Del Papa
In a habeas corpus case, an order denying habeas petition is affirmed with the Court holding that: 1) previous findings of incompetency to stand trial do not give a petitioner the right to a hearing on his ability to have waived his Miranda rights where petitioner does not argue that waiver was made incompetently or unintelligently; and 2) petitioner's claim of ineffective assistance by counsel in sentencing fail where plaintiff fails to put forth any mitigating evidence ignored by counsel.

[09/04] US v. Sevilla
Sentence for conspiracy to distribute, and to possess with intent to distribute, cocaine base is vacated and remanded where, when a district court fails to address a defendant's colorable argument for a lower sentence under 18 U.S.C. section 3553(a), and the defendant fails to object, the argument is nonetheless preserved for appeal under a standard requiring meaningful consideration of the 3553(a) factors.

[09/04] People v. Castagne
In a conviction for unlawfully possessing methamphetamine, sentence finding defendant ineligible for probation is reversed where: 1) record does not establish that defendant's acts and omissions evinced a complete refusal to undergo treatment; and 2) facts in the present case are subject to conflicting inferences and the lower court never considered the question whether defendant demonstrated a complete refusal to undergo drug treatment.

[09/04] US v. Yannotti
Conviction and sentence for conspiring to engage in racketeering in violation of the Racketeer Influenced and Corrupt Organizations (RICO) are affirmed over claims of error that: 1) the evidence was not legally sufficient to establish defendant's conviction for RICO conspiracy; 2) the district court erred in admitting the contents of two intercepted phone calls and allowing a witness to interpret those phone calls; 3) one of the racketeering acts alleged in the indictment was improperly vague; and 4) the district court erred in rendering his sentence.

[09/03] US v. Edwards
Convictions and sentence for drug possession, conspiracy and firearms charges are affirmed where: 1) there was sufficient evidence to support the convictions; 2) as applied on the facts of the case, the statute criminalizing firearm possession by drug users was not unconstitutionally vague; 3) evidentiary rulings by the trial court were either not an abuse of discretion or were harmless error; and 4) criminal history points were properly applied in calculating the guidelines sentencing range.

[09/03] Kindler v. Horn
In a capital-murder case, petition for a writ of habeas corpus is granted where: 1) the time period for filing the petition was tolled during state-court proceedings, and the federal petition was therefore timely; 2) the state fugitive-forfeiture rule did not apply to procedurally default the petition; 3) the jury instructions and verdict sheet that were used during the penalty phase of petitioner's trial denied him due process of law pursuant to Mills v. Maryland, 486 U.S. 367 (1988); and 4) petitioner was denied the effective assistance of counsel during the penalty phase.

[09/03] US v. Hernandez
In criminal defendant's objection to two-point sentencing enhancement, sentence including period of criminal supervision for conspiracy to distribute heroin is affirmed where: 1) defendant "committed the instant offense while under a[] criminal justice sentence," USSG section 4A1.1(d); and 2) the district court appropriately elevated his criminal history score by two points on that account.

[09/03] US v. Campos
Conviction and sentence for participation in a drug conspiracy are affirmed over objections that: 1) there was a fatal variance between the indictment's charge of a single conspiracy and the proof offered at trial of three related conspiracies; 2) a jury instruction should have been given regarding the proof that defendant had belonged to a particular conspiracy; 3) investigators' applications to use wiretap surveillance failed to show necessity, and evidence gathered from wiretaps should therefore have been suppressed; and 4) his sentence was unreasonable.
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