El Encanto, Inc. v Hatch Chili Company, Inc.

Encanto appealed the district court order quashing its Rule of Civil Procedure 45 subpoena to a nonparty in its trademark board proceeding against Hatch arguing there is no need for a deposition before issuing a subpoena. The panel agreed and reversed holding neither rule 45, 35 USC 24 governing board proceedings nor the rules adopted by the trademark office require a deposition before issuing a subpoena and the guidance manual cited by Hatch is ambiguous and disclaims any reliance by parties.

Stouffer v Duckworth

After a hearing on remand form an earlier appeal, the district court denied Stouffer’s habeas petition ruling the nonverbal communication between a juror and her husband during penalty phase closing arguments was harmless beyond a reasonable doubt. The panel affirmed. It held that the district court erred in its factual findings about the timing and scope of the communications. However, viewing the whole record in the light most favorable to Stouffer does not change the conclusion because none of the other jurors were aware of the nonverbal communication and there was no evidence that the nonverbal communication affected the juror’s decision to vote for the death penalty.

In re Zagg, Inc. Derivative shareholder Action (Pikk v Pederson)

Pikk appealed the district court’s order dismissing the derivative suit for failure to send a demand to Zagg’s board or prove the demand futile and for failure to state a claim. The panel agreed with the first ground and affirmed. It held that federal law controlled the case, but, that state law on demand and futility should control under federal statue to avoid different standards controlling federal claims and state law claims. It also accepted the parties’ argument that Nevada law controlled and found no reason to undertake independent analysis. The panel held that under Nevada law, Pikk bore the burden to prove that Nevada’s exculpatory statute did not apply by proving intentional misconduct or fraud, federal rule of Civil procedure 23.1 sets out pleading requirement on demands to boards of directors chic requires plaintiffs like Pikk to plead the demand or futility, that knowing or intention misconduct requires knowledge of wrongness of conduct as this best effectuates Nevada law to protect directors and Pikk failed to prove such knowledge of wrongness as to any act alleged in the complaint or even that a succession plan alleged to have been wrongly not disclosed even existed. The panel also held that Pikk failed to plausibly allege a lack of independence among directors as he failed to plead anything beyond common service on the board which is insufficient as a matter of law.

United states v Holloway

Holloway appealed his convictions and sentence. The panel affirmed. It held that Holloway’s ineffective assistance claim had to be raised in a habeas proceeding. It held that any error in allowing victims to testify about the emotional harm they suffered from the fraud was harmless in light of Holloway’s admissions of fraudulent intent in emails and a deposition plus testimony of fraudulent intent form former employees of Holloway. The panel held there was no confrontation clause violation when the district court barred introduction of default judgments against two witnesses into evidence as Holloway’s attorney was allowed to explore the relationship of one witness to Holloway and eh fraud as well explore criminal charges brought against him and the criminal convictions related to the fraud as to another witness and thus everything Holloway wanted to establish through the default judgments was introduced into evidence. It finally held that Holloway failed to object to the number of victims and thus any error in enhancing his sentence based on 250 victims was not plain.

Mayfield v Bethards

Bethards appeal the denial of his qualified immunity motion. The panel affirmed. It held that the 4th Amendment protects private property from seizure without a warrant, dogs are private property and entering Mayfield’s yard to shoot and kill his dog was unreasonable under the circumstances as a year had passed after the alleged livestock attack and the shooting could be found unreasonable by a jury. It held the right was clearly established by 10th Circuit and Kansas appellate authority evaluating 4th Amendment seizure claims involving animals and the overwhelming weight of authority, including all seven federal circuits to decide the issue, that dogs are protected from unlawful seizure.

M.G. v Young

M.G. appealed summary judgment entered for Young in her malicious prosecution case. The panel affirmed holding there was no nonspeculative evidence why the state court allowed M.G. to withdraw her guilty plea and thus she was unable to prove the state court acted on grounds indicative of innocence.

United States v Willis

Willis appealed his rape conviction. The panel affirmed. It held that there was no erroring admitting evidence of past sexual assaults because one victim presented evidence which, if believed, would prove sex abuse as Willis touched her breast and laid on top of her and the other victim was unconscious which would support a rape charge, these past assaults were relevant to the issue of whether or not force was used in the present case and neither the time elapsed between the past events and eh current charge nor Willis’ minor status at the time of the past events rendered the evidence inadmissible. It held there was no due process violation when a trial court in Mississippi failed to destroy Willis’ juvenile records as he lacked a privacy interest in them and in any event told investigators about being charged in the past and thus suffered no prejudice. The panel held that Willis’ custodial statements were properly admitted a Willis initiated the resumption of questioning after invoking his right to an attorney and there was no evidence of threats or other coercive acts. It held that evidence that victim engaged in sex with her boyfriend was properly excluded as it was irrelevant to the consent/force issue and Willis was able to introduce evidence of victim’s motive to lie through cross examination. The panel held that an investigator’s possible vouching was harmless as it his statements were irrelevant to the consent/force issue. The panel finally rejected Willis’ cumulative error argument as there were no or at most one error and cumulative error requires at least two errors.

Cropper v Commissioner of Internal revenue

Cropper appealed the administrative order upholding a tax levy on his property. The panel affirmed. It held there was no abuse of discretion by the appeals office finding that the IRS mailed the notice of deficiency as the IRS submitted copies of the notices, defective mailing forms, testimony from an employee that there was no record of any mail sent to the last address on record being returned as undeliverable and forms proving the creation of the notices which are sufficient to prove mailing to the last known address. Based on this conclusion, Cropper is presumed to have received the notices, his unsworn statements did not rebut the presumption and even if he had the remedy was to allow him to contest his liability not invalidate the underlying assessment and the hearing officer advised Cropper he could file corrected returns for the years in question which Cropper chose not to do and Cropper failed to present any evidence challenging the assessment.

Nelson v United States

Nelson successfully sued the government arguing it failed to fix a pothole on a path trail and he was injured when he struck and fell into the hole. The government appealed the judgment against it arguing it was immune to suit under Colorado’s recreational use statute. The panel agreed and reversed. It held that the government indirectly permitted bicycling on the path under an objective intent approach because it knew people were biking on the path, knew a sign was posted at the start of the path identifying the path as a bicycle path and made no efforts to either remove the sign or stop the bicyclists. The panel reasoned this objective intent approach is consistent with the rulings by other state judiciaries and is consistent with the plain language of the statute. The case was remanded to evaluate whether the government was liable to Nelson for willful or malicious conduct.