Pauly v White

Pauly sued White, who shot and killed his brother, and other officers under 42 USC 1983 alleging excessive force and state tort law claims. The district court denied the officers’ qualified immunity summary judgment motions. The panel, 2-1, affirmed.   The majority held the other officers motions were properly denied as there are disputed facts as they made threats toward Pauly and his brother, it is unclear whether or not they identified themselves as state police, New Mexico recognizes a right to defend one’s home and by going to the house at night in a manner which could be believed to be that of intruders, it was reasonably foreseeable that force could be used by the people in the house. The officers thus could be liable as they set into motion a chain of events that may have resulted in the violation of the brother’s rights and the law on liability for setting events in motion was established as of the date of the shooting. As to White, the majority held that summary judgment was properly denied as Pauly  was suspected of DUI at most which is not a serious crime; there is a genuine issue of fact as to whether it is reasonable to believe that an officer was shot when White did perceive anything beyond the shots from the house that anyone had been hit and a fact issue as to whether there was any immediate threat given the officers had taken cover some distance from the house in the dark; there was insufficient evidence to arrest Pauly or his brother; self-defense would be a permissible defense here and there is a question as to whether the brother actually fired a weapon; neither White nor any other officer ordered the brother to drop his weapon and there is expert testimony there was time to issue such an order; and White was 50 feet away from the brother hiding behind a stone wall. It finally held the law on excessive force was established as of the time of the shooting in 10th Circuit precedent. The dissent argued that White’s actions were objectively reasonable as he arrived to hear the occupants of the house say they had guns, heard shots fired from the house, believed an office had been hit and the brother pointed a gun at him and the precedent relied upon by the majority is too general to actually establish a constitutional right here. The dissent also argued that because White did not violate the constitution, the other officers are also entitled to immunity.

United States v Vernon

Vernon appealed her attempted tax evasion convictions and sentence. The panel affirmed. It held Vernon’s motions for acquittal were properly denied as the jury could have found that Vernon’s creation of a corporation nominally controlled by her domestic partner and then using unlimited access to the corporation’s account to pay personal bills demonstrated that Vernon use the corporation in an attempt to evade taxes. It further held that proving the corporation was Vernon’s alter ego and the use of other civil law doctrines did not violate due process as they were merely means to demonstrate the attempt given the unique facts of the case. The panel held that the jury instructions which identified acts taken to commit the crimes and identifying the government’s theories of the case accurately stated the law and were thus proper. It finally affirmed the sentence holding the loss calculation was correct as Vernon controlled the corporation and thus controlled the income, guidelines requires the use of intended loss and amount collected in the past were properly included and the use of the corporation was a sophisticated means of attempting to evade taxes.

Milton v Miller

Milton sought review of the district court’s denial of his habeas petition after a hearing ordered on remand in an earlier appeal. The panel denied review. It held that Milton’s ineffective assistance claim failed because the plea offer he claims was not communicated to him was in fact never offered by the prosecutor. It held that Milton’s new claim addressed by the district court should be reviewed instead of prolonging the case by sending the claim back to state court and that the new claim lacked merit because Milton knew that all the pela offers were contingent on pleading to the drug charges and a separate drive by shooting charge and Milton chose to gamble that he could get a better deal if could get the shooting charge dismissed. Thus, his strategic choice, not a lack of waring of the state’s intention to pursue the drug charge to a mandatory life sentence, caused Milton’s life sentence to occur and there is no basis to find ineffective assistance of counsel.

United States v Muñoz

Muñoz challenged several conditions of his supervised release. The panel affirmed. It held any error in the employment condition was not plain as no court has looked at possible vagueness. It held any inconsistency in two alcohol conditions was cured by the district court’s oral pronouncement that drinking is prohibited and alcohol and intoxicants are not vague terms when viewed with common sense. The ban on frequenting places where controlled substances are present is not plain error as there is a split of authority on whether it is vague and is not an abuse of discretion as the condition has an implied knowledge element. The same reasoning applied to a reporting of questioning by a law enforcement officer and if compliance were impossible, Muñoz could not be jailed for failure to comply. A ban on associating with known felons has been held not vague, does not implicate familial association as no members of Muñoz’s family are felons and does not apply to chance or casual encounters. A requirement to truthfully answer questions does not bar assertion of Fifth Amendment rights. A requirement to support dependents was not vague as common meaning limits dependents to those Munoz must support and support is housing and the necessities of life. The requirement to work can be imposed even if Muñoz may be unable to find work or may be fired in the future. A requirement to allow suspicionless searches and the seizure of contraband has been upheld in other cases and was not an abuse of discretion here. The panel finally held that there is no requirement to make individualized findings before imposing standard conditions like the ones here.

Archangel Diamond Corporation Liquidating Trust v Oao Lukoil

Trust appealed the dismissal of its suit against Lukoil on jurisdictional on inconvenient forum grounds. The panel affirmed. It held that Lukoil met its burden of proving Russia was a more convenient forum because Russia is an waivable forum to litigate the case, Russian and American law both apply here as the validity of the underlying contracts is controlled by Russian law and the balance of interests favors Russia because the shift of burden to trust only slightly favors retaining the case while the public interests-need to provide interpreters  and apply Russian law would burden the district court, the core of the dispute involves acts in Russia, an agreement negotiated and implemented in Russia with alleged losses occurring in Russia and Russia has a strong interest in adjudicating the case- strongly favor Lukoil.