In re Cowen (WD equipment, LLC et al. v Cowen)

WD and two individuals appealed the bankruptcy court judgment finding they violated the automatic stay and awarding actual and punitive damages. The panel reversed and remanded It held that the bankruptcy court had jurisdiction over the adversarial proceeding even after the underlying bankruptcy case was dismissed as such proceedings are core bankruptcy proceedings which vindicate statutory rights. It held that the bankruptcy court erred in adopting the majority view of 11 USC 362(a)(3) which prohibits any act to obtain possession or exercise control to reach the passive act of not returning property as the plain language only prohibits actions to possessor exercise control not inactivity, the legislative history does not support reading the provision to include failure to return as it only added acts that exercise control such as sale to already prohibited acts that obtain possession and the policy argument that the requirement to turn over property under 11 USC 542 operates in conjunction with 362(a)(3) is wrong as there is no link or connection between the two provisions and thus the panel adopted the minority rule that passive failure to return over does not violate the automatic stay. The panel noted, however, that WD and the individuals’ actions in manufacturing documentation, lying to the bankruptcy court coaching witnesses could qualify as post-petition acts and thus the case was remanded for further proceedings.

United States v John

John appealed his attempted sex abuse and abusive sexual contact convictions. The panel affirmed. It held there was no error in limiting cross examination of the victim as trial counsel specifically waived reliance on an incident when victim was hospitalized for psychiatric treatment as a ground to attack her truthfulness and the incident was completely irrelevant to the issue of victim’s capacity to perceive, remember or relate the incident in question here. It held there was no error in a jury instruction that the victim’s testimony could be the basis of conviction without corroboration if her testimony was believed beyond a reasonable doubt as it accurately stated the law and the district t court instructed the jurors on assessing witness credibility, the need for each element to be proven beyond a reasonable doubt and left open the defense of no corroboration; no error in informing the jury that meeting with an attorney about a witness’ testimony did not adversely affect the veracity of the testimony as it accurately stated the law and counsel argued victim had been coached; and no error in instructing the jury that it can, but not need to, infer intent from knowing action as the jury was also instructed the government bore the burden of proof on intent and all other elements of the crimes charged. It finally held that there was no basis for a lesser included offense charge as the testimony was John disrobed and pulled victim towards his genitals and thus there was no way for simple assault to be proven on these facts.

United States v Adrienne Lopez; United States v Angela Lopez

Adrienne and Angela appealed their possession with intent convictions. The panel reversed. It held that, while it was a close case, the defendants’ motion to suppress the drugs should have been granted because the officer who pulled the defendants over for speeding lacked reasonable suspicion criminal activity was foot as Adrienne’s nervousness was insufficiently severe to trigger suspicious, her comment to not look in the back seat because it was messy when in fact it was not suggested something odd was afoot but not criminal activity and the story that the defendants were driving to Kansas city or Nebraska to rescue Adrienne’s sister from an abusive boyfriend was plausible and the officer failed to develop any inconsistencies. It held Adrienne had standing to move to suppress even though she neither drove nor owned the car because the search that found the drugs here was triggered by a drug dog alert on her purse which contained marijuana and this was a sufficient nexus. It held there was no basis to arrest Angela as the dispatcher confirmed she had a valid California license and thus the officer knew she could not be convicted of driving without a license under the applicable Kansa statue.

Equal Employment Opportunity Commission v TriCore Reference Laboratories

Commission appealed the district court order refusing to enforce an administrative subpoena. The panel affirmed. It held there was no abuse of discretion in denying the subpoena to the extent it sought information about a pattern or practice of discrimination as the underlying complaint involved one person and the alleged failure to accommodate her disability not a pattern or practice and under circuit precedent this meant pattern and practice evidence was irrelevant to the investigation of the charge of discrimination. It held there was no abuse of discretion in denying to enforce the subpoena as to comparator evidence as Commission limited its appellate argument to pregnant workers, failed to make arguments about nondisabled pregnant workers reeving accommodations or accommodations to nonpregnant workers and the request was overbroad as it sought information about workers who did not seek accommodation.