United States v Cruz

Cruz appealed the denial of his 2255 motion seeking to set aside his conviction based on ineffective assistance of counsel namely failure to move to suppress evidence obtained through a search warrant that was not signed. The panel affirmed. It first held the case was properly before it as 2255 orders which grant a new sentencing are not final until the actual resentencing and thus the notice filed here after the new sentence was pronounced was timely. It affirmed on the ineffectiveness issue holding that there was no prejudice given the 4th Amendment does not require any warrant to be signed and the issuing judge here did sign other documentation submitted in support and signed the warrant nunc pro tunc. The panel joined the 1st Circuit in so holding while rejected the views of the District of Montana. It also noted that even if the signature requirement does exist, the good faith exception applies here as there was an actual determination of probable cause, there were no materially false statements in the supporting paperwork the issuing judge did not abandon his neutral role and the warrant was not facially deficient or unreasonable to believe probable cause existed.

Tennille v The Western Union Company

After Tennille and Company settled a class action suit, two members of the class objected. Company sought a bond under Federal Rule of Appellate Procedure 7 for costs in the event the appeal was unsuccessful. The district court ordered a bond to cover notification of the merits appeal, administrative costs to maintain settlement funds and the printing costs for the supplemental record. The bond was over $1 million. The panela affirmed in part and reversed in part. It held that it had jurisdiction over the bond issue either as an order aid of appellate court jurisdiction, a final order in the Rule 7 proceeding or an appealable collateral order. It next joined all other circuits to reach the issue and held that rule 7 “costs on appeal” are limited to the costs of the actual appeal and not other costs the appeal may trigger. Thus, neither the notification nor the administrative costs were within the scope of Rule 7. It next reduced the amount the bond for printing from $25,000 to $5,000 as Company submitted no evidence in support of the higher amount and objector admitted the lower amount. The panel finally held that while objector may have difficulty paying for the bond, $5,000 was not so high as to violate due process.

United States v Long

Long was convicted of drug and weapons charges. He appealed arguing his motion to suppress should have been granted and a CD should not have been admitted. The panel affirmed. It held that search warrant in question was properly issued as a reliable confidential informant observed cocaine at the apartment to be searched, there was no evidence the officer who applied lied in the application and in any event the informant was interviewed by a magistrate in camera and the magistrate found the information given to the applying officers was relevant to probable cause. The magistrate also ruled the informant had no information helpful to the defense. Thus, denial of the motion to suppress was correct as was the denial of eh motion to reveal the informant’s identity. The CD was properly admitted as it had Long’s picture on it, depicted him possibly mailing crack, was found in a kitchen where crack was being prepared and thus made Long’s guilt more likely.


Myers v Knight Protective Services, Inc.

Myers appealed summary judgment for Knight on his ADA and race discrimination claims. The panel affirmed noting that the position Myers applied for requires the ability to stand and walk for extended periods and Knight admitted he was unable to do either and indeed sometimes needed to take a stay and just rest. The panel also held that Myers supervisor was attempting to protect Knight’s interests and thus Myers state law claims also failed.

Seneca Insurance Company, Inc. v Western Claims, Inc.

Seneca sued Western for equitable indemnification and negligence and raised advice of counsel as a ground for settling the underlying suit between the parties and a claimant. The district court ordered Seneca to provide the correspondence between it and the attorneys involved in the decision to settle, the jury returned a verdict for western. Seneca appealed and the panel affirmed. It held that by raising the issue of advice of counsel, that advice was affirmatively put at issue and the correspondence was vital to western’s defense in the case.

iMatter Utah v Njord

iMatter challenged Utah’s requirements that it buy liability insurance and sign an indemnity agreement before being allowed to march on public roads. The district court found the requirements unconstitutional and enjoined further enforcement of the provisions. The panel affirmed. It first noted a circuit split on the issue of whether there is an indigence exception to parade permits and  joined the 1st and 6th Circuits and held there is no indigence exception to fees to parade noting that the United States Supreme Court has upheld fees where there are other means to do the expressive activity. Applying here, it held the $300 premium was not unconstitutional as iMatters can use sidewalks to call attention to its environmental concerns. Turning to the facial challenge, the panel held that neither requirement was narrowly tailored to serve the interest of protecting Utah from liability because there was no evidence that street marches are more dangerous than sidewalk marches, no evidence the insurance is a recovery of administrative expenses, no evidence the amount of insurance required ins necessary for all marches and the insurance imposes liability on permittees which are not legally responsible for and Utah is barred from requiring iMatter or anyone else to defend Utah form frivolous and meritless suits in order to exercise their First Amendment rights.

United States v Catrell

Catrell appealed his sentence arguing prosecutorial vindictiveness and an illegal sentence. The panel remanded for resentencing. It rejected the vindictiveness argument under circuit precedent noting Catrell said he was free to reject the plea offer and thus there can be no vindictiveness. The panel vacated his sentence as the district court gave a sentence for identity theft in excess of the statutory two year sentence. Applying the sentencing package doctrine, the panel remanded for a new sentencing to the agreed amount of 132 months and not the lower amount Catrell sought noting there is no exception to the doctrine for illegal sentences or sentences pursuant to a plea deal