Input: devised a scheme to defraud Gron-gie, defendants, and other African Americans by charging higher premiums and systematically depriving them of benefits. (Id. at ¶ 185.) According to defendants, plaintiff effectuated its scheme through a combination of RICO-prohibited theft, mail fraud, and wire fraud. (Id. at ¶¶ 187-88, 190-91.) Under Georgia’s civil RICO provision, defendants can only recover for injuries incurred as a result of predicate acts directed towards themselves, as opposed to predicate acts directed towards third parties. Nicholson v. Windham, 257 Ga.App. 429, 430, 571 S.E.2d 466, 468 (2002) (upholding dismissal of RICO claim based on predicate acts that were not directed towards plaintiff). See also Waldschmidt v. Crosa, 177 Ga.App. 707, 709, 340 S.E.2d 664, 666 (1986) (<HOLDING>) (emphasis in original) (quoting Sedima, Holdings: 0: holding that section 10b and rule 10b5 suits must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation 1: holding that to the extent plaintiffs present action is based on conduct subsequent to the original action it is not barred by the prior litigation 2: holding a plaintiff must allege the violation of a right secured by the constitution and laws of the united states to state a claim under  1983 3: holding that a plaintiff in a bivens action must allege that the individual defendant was personally involved in the constitutional violation 4: holding that plaintiffs must allege and can only recover to the extent that they have been injured  by the conduct constituting the violation


Input: security, the trial court must hear evidence of “the value of the property interest’s rent or revenue.” Cf. Culbertson v. Brodsky, 775 S.W.2d 451, 455 (Tex.App.Fort Worth 1989, writ dism’d w.o.j.) (“remand[ing] to the trial court with instructions that the trial court shall conduct a hearing and consider evidence relating to the sufficiency of the supersedeas bond, including the present value of the consideration required of Brodsky by the contract and the value of the rent and/or hire of the property”). The trial court thus erred in setting the amount of security without conducting an evidentiary hearing. However, since Reyes does not argue this error harmed him in any way, I would hold the error is harmless. See Tex.R.App. P. 44.1; see Nabelek, — S.W.3d at -, 2005 WL 2148999, at *6 (<HOLDING>). And, since it is undisputed that the trial Holdings: 0: holding brief hearing not part of trial proper in defendants absence subject to harmless error standard 1: holding law requires court to consider full record of any evidentiary hearing even if hearing held by different judge 2: holding that where defendants counsel objected to the trial judges evidentiary rulings in evidentiary hearing but did not object to the defendants absence any claim of error due to defendants absence had been waived 3: holding that error harmless because appellant failed to identify any specific harm from improper introduction of evidence 4: holding absence of record harmless when hearing was not evidentiary and appellant failed to argue harm


Input: also provides that aperson commits the crime of telephonic harassment if the caller “intentionally harasses or annoys another person: “(c) By sending to, or leaving at, the other person’s telephone a text message, voice mail or any other message, knowing that the caller has been forbidden from so doing by a person exercising lawful authority over the receiving telephone.” The state did not charge defendant with telephonic harassment under paragraph (c) for leaving a “voice mail or any other message.” 3 See State v. Blair, 287 Or 519, 524-25, 601 P2d 766 (1979) (declaring ORS 166.065(1)(c) (1979), to be constitutionally inadequate because it did not require an ‘effect’ on the listener and the prohibited conduct was not narrowly defined); State v. Ray, 302 Or 595,600-01,733 P2d28 (1987) (<HOLDING>). 4 See State v. James, 266 Or App 660, 667 n Holdings: 0: holding that state express advocacy definition without an electioneering communication limitation was not vague 1: holding that threat as used in the coercion definition as that definition is incorporated into section 3605s witnesstampering prohibition was not unconstitutionally vague because nature of threat was informed by the harms enumerated in the definition in that case hatred contempt and ridicule 2: holding that ors 1660651e 1985 was unconstitutional because it potentially reached areas of communication that would be constitutionally privileged and it incorporated a definition of obscenity that was unconstitutionally vague 3: holding factor b is not unconstitutionally vague 4: holding that attorney disciplinary rule was unconstitutionally vague as applied


Input: Brungardt objected to Teague’s investigation of Wess Jones because this evidence is hearsay, irrelevant, and prejudicial. The complaints of irrelevance and prejudice are waived because they were not raised at trial. See Tex.R.App. P. 33.1(a). Regarding the Town’s hearsay complaint, Chief Brungardt was the Town’s agent or employee, and his authorization of Teague’s investigation into the Wess Jones incident was in the course and scope of his employment as chief of police. Accordingly, Teague’s testimony that Chief Brungardt did not object to Teague’s investigation of Wess, but actually authorized it, was an admission by a party-opponent and was not hearsay. See Tex.R. Evid. 801(e)(2)(D); see also Excel Corp. v. Porras, 14 S.W.3d 307, 314 n. 1 (Tex.App.Corpus Christi 1999, pet. denied) (<HOLDING>); McEwen v. Wal-Mart Stores, Inc., 975 S.W.2d Holdings: 0: holding intentional assault by coworker to be outside the course and scope of employment 1: recognizing that the existence of an agency relationship is ordinarily a question of fact 2: holding that statement is admission by partyopponent if made by partys agent or servant concerning matter within course and scope of the agency or employment and made during existence of agency or employment relationship 3: holding that statements of a company vice president were admissible against the principal owner of the company under fedrevid 801d2d as an admission made by the partys agent or servant concerning a matter within the scope of the agency or employment 4: holding that municipal police officers are immune from personal liability for decisions acts or omissions that are 1 made within the scope of their official duties while in the course of their employment 2 discretionary rather than ministerial and 3 not made in a wanton or reckless manner


Input: defendants. Id. at 615, 117 S.Ct. 2231. Hence, the district court must engage in a rigorous analysis of whether the Rule’s requirements have actually been met. Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160-61, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). At times the issues may be plain enough for the court to make its determina tion only on the pleadings. If need be, however, the district court may probe behind the pleadings and forecast what kind of evidence may be required or allowed at trial. See id. Of course, the court must bear in mind that plaintiffs are not required to prove their case at the certification stage. Thus, certification is not an appropriate time to examine the merits. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (<HOLDING>); In re Visa Check/MasterMoney Antitrust Holdings: 0: holding that while it is not appropriate to consider the merits in determining certification the admissibility of all evidence which has relevance to the merits is not barred if it is relevant to the purpose of refuting or supporting the existence of a class 1: holding that the court has no authority to conduct a preliminary inquiry into the merits of an action to determine whether it may be maintained as a class action 2: holding certification is not an occasion for inquiry into the merits 3: holding that an employers inquiry into the reason for an employees work absences was a permissible jobrelated inquiry under the ada 4: holding that the court may only make a facial inquiry into the validity of the certification


Input: file additional motions, he may move for extensions of time when necessary. IT IS SO ORDERED. 1 . The Supreme Court has granted certiorari sub nom United States v. Ursery, — U.S. -, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996). 2 . Chevron’s three-factor analysis still applies when a court announces a new rule but does not apply it to the litigants before it. Holt v. Shalala, 35 F.3d 376, 380 n. 3 (9th Cir.1994). 3 . Dowell ultimately refused to grant relief because the movant had not appealed the judgment in question. He had essentially waived his right to relief. 4 . In re Pacific Far East Lines, Inc., 889 F.2d 242, 249 (9th Cir.1989), followed this rule in the bankruptcy context, holding that a clarification of the law may, in conjunction with other c . 1892, 104 L.Ed.2d 487 (1989) (<HOLDING>). Two cases have found that the 1989 case, Holdings: 0: holding the double jeopardy clause applicable to the states through the due process clause of the fourteenth amendment 1: holding double jeopardy clause applicable to civil penalties under the false claims act 2: holding that unlike under the federal constitution a civil forfeiture is punishment under the new mexico double jeopardy clause 3: holding that the double jeopardy clause prohibits courts from imposing greater penalties than the legislature intended 4: holding that double jeopardy clause did not apply to forfeiture proceeding before the court


Input: made to Ms. Cobb, and the complaints of other teachers regarding Krystal’s behavior, are amply supported by the testimony of various witnesses, including Krystal’s own testimony. W. Va.Code § 18A-5-1, which governs a teacher’s authority, provides, in part: (a) The teacher shall stand in the place of the parent(s), guardian(s) or custodian(s) in exercising authority over the school and shall have control of all pupils enrolled in the school from the time they reach the school until they have returned to their respective homes[.] * :H * (c) The teacher shall have authority to exclude from his or her classroom or school bus any pupil who is guilty of disorderly conduct; who in any manner interferes with an orderly educati a. 700, 705, 347 S.E.2d 220, 226 (1986) (Neeley, J., dissenting) (<HOLDING>). Thus, we hold, West Virginia public school Holdings: 0: recognizing that because the state has cognizable interests in the safety of children in its jurisdiction neglectful parents may be separated from their children 1: holding that although parents have a fundamental right to the care and custody of their children they have no fundamental right to allocate support to their children as they see fit 2: recognizing fundamental right of parents to care for their children 3: recognizing that teachers are not merely instructors in sciences and letters they are authority figures role models behavioral examples surrogate parents after a fashion teachers stand in loco parentis children learn much more from their teachers than the quadratic equation and the proper spelling of dirndl  they learn important values and morals one of the most important values children learn from their teachers is respect for the law 4: holding that teachers stand in loco parentis toward a pupil in matters of discipline and security


Input: provides: (a) A person commits the offense of distributing material ere are not “words of art or words connected with a particular trade or subject matter,” we look to the ordinary meaning of those words at the time the General Assembly enacted the statute in deciding whether the sending of an intangible text message comes within the scope of the statute. See OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.”); Collins, 198 Ga. at 22. See also Sandifer v. U. S. Steel Corp.,_U. S._,__ (134 SCt 870, 187 LE2d 729, 738) (2014) (<HOLDING>). Moreover, under the canon of noscitur a Holdings: 0: holding that statutory words must be given their ordinary contemporary meaning 1: holding that  unless otherwise defined words will be interpreted as taking their ordinary contemporary common meaning  at the time congress enacted a statute and reviewing dictionaries from the era of the statutes enactment to assist in determining its meaning citation omitted 2: holding that bribery must be given its ordinary meaning at the time of the enactment of the relevant statute 3: holding that courts give the words of a statute their ordinary contemporary common meaning absent an indication congress intended them to bear some different import 4: recognizing that undefined words in a statute ordinarily should be interpreted as taking their ordinary contemporary common meaning


Input: the number of hours reasonably expended for purposes for calculating the lodestar, the district court should exclude excessive, redundant, or otherwise unnecessary hours ...” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir.1999); See Hensley, 461 U.S. at 433, 103 S.Ct. 1933. Sea Spray does not challenge the hourly rates charged by the various attorneys and legal assistants retained by Buyers. In any event, this Court finds the rates charged by Buyers’s individual attorneys and legal assistants to be within the range of reasonable fees. See, e.g., Rodriguez v. McLoughlin, 84 F.Supp.2d 417, 427 (S.D.N.Y.1999) (awarding paralegals between $75/hr and $130/hr depending on experience); Ramos v. Patrician Equities Corp., No. 89 Civ. 5370, 1993 WL 58428, at *29 (S.D.N.Y. March 3, 1993)(<HOLDING>). But see In re WICAT Securities Litigation, Holdings: 0: holding that attorney hourly billing rates between 150 and 450 are in line with other new york city firms and that rates between 98 and 280 are modest 1: holding that the magistrate judge did not abuse her discretion in considering the prevailing hourly rates in the southern district of new york when awarding attorneys fees 2: holding that absent other evidence of prevailing market rates the district judge may establish a reasonable rate based on his familiarity with the prevailing rates in the area 3: recognizing the time honored practice of applying new york city rates in calculating attorneys fees throughout the southern district of new york including in counties north of the city 4: holding that a carrier has a property interest in telecommunication rates and therefore is entitled to due process in the calculation of said rates


Input: Count Twenty-Two alleges a single scheme to defraud the Sheriffs Office and the citizens of Page County of its right to honest services, and it identifies a use of the mail in furtherance of that scheme. The fact that only one mailing is identified in the indictment does not render Count Twenty-Two invalid. As the Supreme Court recently noted in Bridge v. Phoenix Bond & Indem. Co., 553 U.S. —, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008), “[t]he gravamen of the offense is the scheme to defraud, and any ‘mailing that is incident to an essential part of the scheme satisfies the mailing element.’ ” Bridge, 128 S.Ct. at 2138 (quoting Schmuck v. United States, 489 U.S. 705, 712, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989)); see also United States v. Bradshaw, 282 Fed.Appx. 264, 269-270 (4th Cir.2008) (<HOLDING>). For the foregoing reasons, the defendant’s Holdings: 0: holding that the prosecution may establish the intent element of mail fraud by proving that the defendant was reckless 1: holding that mailing of titleregistration forms satisfied mailing requirement because they contributed to success of the scheme 2: holding that the first element of mail fraud  knowing participation in a scheme to defraud  can extend beyond the specific mailing and that the loss calculation for a mail fraud conviction may include any loss from the fraudulent scheme that the mailing furthered 3: recognizing that where the looting is complete before the mailing is made a claim for mail fraud will not lie 4: recognizing that a mailing must be sufficiently related to the fraudulent scheme to support a charge of mail fraud


Input: Inc., 94 N.M. 59, 607 P.2d 597 (1980); Sanchez v. Bernalillo County, 57 N.M. 217, 257 P.2d 909 (1953). Moreover, our courts have held that the Workman’s Compensation Act is sui generis. It creates exclusive rights, remedies and procedures. Casias v. Zia Co., 94 N.M. 723, 616 P.2d 436 (1980). In at least one instance, the court refused to create a new cause of action for employer subrogation tangential to the act. Security Insurance Co. of Hartford v. Chapman, 88 N.M. 292, 540 P.2d 222 (1975). The Courts in New Mexico have not hesitated to recognize the existence of new causes of action or to abolish certain common law defenses where public policy or statutory grounds are found to warrant such judicially sanctioned change. F & T Co. v. Woods, 92 N.M. 697, 597 P.2d 745 (1979), (<HOLDING>); Hicks v. New Mexico Highway Comm., 88 N.M. Holdings: 0: recognizing as viable actions in tort negligent hiring and negligent retention 1: recognizing torts of negligent hiring supervision and retention 2: holding that a cause of action or negligent hiring training and retention can proceed only if the alleged negligence leads to the commission of one of the torts enumerated in the tort claims act 3: holding that a negligent retention claim was properly dismissed when there was no underlying tort upon which it could have been based 4: holding that for a plaintiff to recover on claim of negligent hiring the negligent hiring of the employee must have been the proximate cause of the injury at issue


Input: was found to have retained any privacy in the room after his eviction, the degree of privacy retained would not be significant under the totality of the circumstances. Additionally, while a hotel room may differ slightly from an in-home situation, Defendant and Nishimura still had the opportunity to hide weapons in the room just as they would have in a home. Because Nishimura was tasked with packing her belongings, the officers believed it necessary to secure the area from any danger posed to them. The Government argues that in the instant case, it would have been unreasonable for Special Agent Nutter to have left the drawer unsearched and jeopardized the safety of all present should Nishimura have gained access to a loaded gun. See United States v. Flippin, 924 F.2d 163 (1991) (<HOLDING>). Defendant counters that, here, a search for Holdings: 0: holding that the opening of a makeup bag was justified when a woman had grabbed the bag when the officer turned away had resisted it being taken from her the bag felt heavy her companion had been armed the previous day and the officer and individual were alone 1: holding the opening and inventory of a shoulder bag was reasonable despite the possible alternative of securing the bag as a whole 2: holding that when fleeing felon tossed a mesh bag weighing four or five pounds toward the officer the officer would have been justified if he fired at that moment out of fear that the bag might knock his firearm out of his hand but that he was not justified in firing after bag hit him and fell to the ground without injuring him and suspect turned and ran 3: holding that search of shoulder bag was not authorized by search warrant for apartment 4: holding an officers reasonable suspicion that the suspect was armed was sufficient justification for seizure of suspects makeup bag and exigent circumstances justified the subsequent warrantless search of the closed bag


Input: Id. If there is evidence in the record, including affidavits, exhibits, interrogatory answers, and depositions, as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. See Lane v. New York State Electric & Gas Corp., 18 F.3d 172, 176 (2d Cir.1994). Notably, “the trial court’s task at the summary judgment motion state of litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to decide them. Its duty, in short, is confined at this point to issue-finding, it does not extend to issue resolution.” Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir.1994); see Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987) (<HOLDING>). B. Fair Debt Collection Practices Act FDCPA Holdings: 0: holding that on a motion for summary judgment the court cannot try issues of fact it can only determine whether there are issues to be tried 1: holding that under florida law a court hearing a case on a motion for a summary judgment can only consider those issues raised by the pleadings 2: holding that the function of the trial court on a motion for summary judgment is to determine whether issues of fact exist and not to decide the merits of the issues themselves 3: holding that a probable cause determination is appropriate for summary judgment where there are no genuine issues of material fact and no credibility issues 4: holding that when there are no genuine issues of material fact summary judgment is appropriate


Input: United States v. O’Campo, 973 F.2d 1015, 1024 (1st Cir.1992) (“[w]e decline to engage in a construction of the language of foreseeability that requires such a forced linguistic volte-face”). But Edwards ignored the language of the Guidelines- on “the scope of the agreement.” The Second Circuit picked up this language and wrote a gloss on it, holding that the latecomer to a conspiracy was liable for drugs earlier distributed, of which he “knew or reasonably should have known.” United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d Cir.), cert. denied — U.S. -, 112 S.Ct. 347, 116 L.Ed.2d 287 (1991). This gloss introduces a kind of negligence standard into conspiracy law. It goes beyond the terms of the . Sentencing Guidelines. Cf. United States v. Navarro, 979 F.2d 786, 789 (9th Cir.1992) (<HOLDING>). An approach closer to the Guidelines was Holdings: 0: holding that the district court made sufficient factual findings and adequately determined the scope of defendants participation in a conspiracy under  1b13 even though the district court did not expressly determine the scope of the defendants participation 1: holding that the sentencing court erred in failing to make a factual determination as to the amount of drugs attributable to the defendant after his participation in the charged conspiracy 2: holding that defendant is liable for entire quantity of drugs attributable to conspiracy in circumstances where defendant is one of conspiracys central figures 3: holding that evidence tending to show knowing participation in the conspiracy is sufficient to sustain conspiracy conviction 4: holding that when a district court determines drug quantity for the purpose of sentencing a defendant convicted of participating in a drugtrafficking conspiracy the court is required to make an individualized finding as to drug amounts attributable to or foreseeable by that defendant


Input: claim are (1) the possession of monopoly power in the relevant market and (2) willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 481, 112 S.Ct. 2072, 2089, 119 L.Ed.2d 265 (1992); Domed Stadium Hotel, Inc. v. Holiday Inns, Inc., 732 F.2d 480, 487 (5th Cir.1984). In common with a claim for attempted monopolization, a § 2 claim based on monopolization requires proof that the defendant has engaged in predatory, or anti-competitive, behavior. See Northeastern Tel. Co. v. American Tel. & Telegraph Co., 651 F.2d 76, 85 (2d Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1438, 71 L.Ed.2d 654 (1982) (<HOLDING>). The court has concluded that the ground of Holdings: 0: holding that under rico plaintiff must prove an injury because of violation of statute 1: holding that fraudulent joinder required a finding that either there was no possibility that the plaintiff could prove a cause of action against the resident defendant or that the plaintiff fraudulently pled jurisdictional facts in order to subject that resident defendant to the jurisdiction of the state court 2: holding that the plaintiff must demon strate that the defendant engaged in anticompetitive behavior to prove either monopolization or an attempt to monopolize 3: holding the defense of legal impossibility does not bar  prosecution for either attempt or conspiracy 4: holding the state must prove that at the time of the homicide the defendant was engaged in the commission of the felony


Input: to rebut the inference of discrimination came not from a misuse of statistics, but from the inexorable zero.”); see also NAACP, Inc. v. Town of East Haven, 70 F.3d 219, 225 (2d Cir.1995) (vacating denial of preliminary injunction enjoining defendant from hiring any town employees in light of failure to ever hire a full-time black employee, which, by itself, supports an inference of discrimination); EEOC v. O & G Spring and Wire Forms Specialty Co., 38 F.3d 872, 878 (7th Cir.1994) (finding of intentional discrimination was supported by statistical showing that defendant failed to hire any African-Americans); Loyd, 25 F.3d at 524 n. 4 (where promotional procedure maintained the inexorable zero it is strong evidence of intent to bring about that result); Babrocky, 773 F.2d at 867 n. 7 (<HOLDING>); Bethlehem Steel, 635 F.2d at 1015 (reversing Holdings: 0: holding circumstantial evidence that defendant former employer was providing negative employment reference to plaintiffs prospective employers was sufficient to defeat summary judgment on the causation element of prima facie case 1: holding that plaintiffs statistical evidence failed to establish prima facie case or pretext where evidence failed to make specific analytical comparisons 2: holding that close temporal proximity is sufficient to establish a prima facie case of retaliation 3: holding that summary judgment was appropriate where plaintiffs statistical evidence which lacked specific analytical foundation and thus failed to show that employer maintained discriminatory intent was insufficient to establish prima facie case or pretext 4: holding reliance on statistical evidence of inexorable zero was sufficient to establish prima facie case notwithstanding plaintiffs failure to reference appropriate workpool


Input: restitution was set, the court was required to evaluate an inmate’s individual ability to pay. See State v. Haines, 360 N.W.2d 791 (Iowa 1985) (noting that it is the “reasonable ability to pay” standard which allows § 910.2 to pass constitutional muster). In addition, the plan of restitution and plan of payment were both subject to modification by the court. See Iowa Code § 910.7. Once this initial deprivation occurred, the inmates’ interest in their money was diminished, much like the limitations on the freedom to spend money suffered by any person who incurs a debt. When the Department took the next step of designating specific procedures for the repayment of an inmate’s restitution, the procedural requirements diminished. See, e.g., Scott v. Angelone, 771 F.Supp. 1064 (D.Nev.1991) (<HOLDING>). At this second stage of proceedings, the Holdings: 0: holding that defendants are estopped from raising nonexhaustion as an affirmative defense when prison officials inhibit an inmates ability to utilize grievance procedures 1: holding that an award for medical expenses is proper when the expenses have been incurred but not paid 2: holding that notice and postdeprivation grievance procedures are sufficient process to freeze an inmates prison trust account until the prisoner pays for medical expenses he has incurred 3: holding that threats to an inmates safety after his use of the prison grievance system supported a retaliation claim 4: holding california postdeprivation recovery procedures satisfy due process despite lack of notice to claimant of recovery procedures


Input: issue of sanity even if the testimony discloses or is based on the defendant’s statements to psychologists during a compelled examination and without counsel present. 7 . Cf. D.C.Code § 14-307 (b)(2) (1986) (privilege does not cover "evidence relating to the mental competency or sanity of an accused in criminal trials where the accused raises the defense of insanity”); United States v. Byers, 239 U.S.App.D.C. at 10, 740 F.2d at 1113 (observing that while court should respect defendant’s "private enclave of the human personality,” when he "appeals to the nature of that enclave as the reason why he should not be punished for murder, and introduces psychiatric testimony for that purpose, the state must be able to follow where he has led”); Carr, 141 U.S.App.D.C. at 230, 437 F.2d at 663 (<HOLDING>); Developments in the Law — Privileged Holdings: 0: holding in insanity defense case that full scrutiny of defendants mental state overrides the claims founded upon the attorneyclient relationship that might block production of defense psychiatrists examination notes 1: holding that defendants failure to assert the defense in any pretrial motions did not waive defendants limitations defense because the assertion of a limitations defense in the answer preserved defendants right to raise the defense both during the first trial and before the second 2: holding that defense counsel was not constitutionally ineffective for presenting a diminished capacity defense as opposed to a defense of legal insanity 3: holding that insanity is a complete defense to the criminal charge 4: holding that a defendants insanity due to voluntary intoxication is not a defense


Input: role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement, which usurps it.”) (internal quotations and citations omitted). Potential market harm due to the blemished reputation of the politician depicted in the Photograph is not protected by Plaintiff Galvin’s copyright. See New Em Publications, 904 F.2d at 160 (stating that “even if [an unfavorable biography] ultimately harms sales of the authorized biography, this would not result from unfair infringement ... but rather from a convincing work that effectively criticizes [the subject of the biography], the very type of work that the Copyright Act was designed to protect and encourage.”); Dhillon v. Does 1-10, No. C 13-01465 SI, 2014 WL 722592, at *5 (N.D.Cal. Feb. 25, 2014) (<HOLDING>); Katz v. Chevaldina, No. 12-22211-CIV-KING, Holdings: 0: holding that the fair use defense is available only so long as such use does not lead to customer confusion as to the source of the goods or services 1: holding that unauthorized use of politicians headshot to criticize her polities is precisely what the copyright act envisions as a paradigmatic fair use 2: holding that fair use is an affirmative defense 3: holding that nominative fair use is an affirmative defense to a prima facie case of likelihood of confusion similar to the fair use defense 4: holding that the application of the fair use doctrine at the pleading stage is appropriate


Input: 211, 213 (1979). The duty to defend is broader than the duty to indemnify because the duty to defend is triggered by arguable, as opposed to actual, coverage. See Newhouse v. Citizens Sec. Mut. Ins. Co., 176 Wis.2d 824, 834-35, 501 N.W.2d 1, 5 (1993). The Supreme Court of Wisconsin has held that where an insurer is not named in the underlying lawsuit, insurance coverage may be determined either by a separate declaratory judgment action or by the insurer’s intervention in the underlying action followed by a bifurcated trial. See Fire Ins. Exchange v. Basten, 202 Wis.2d 74, 89, 549 N.W.2d 690, 696 (1996). Acuity’s interest in the underlying lawsuit is significant because of the severe consequences if it breaches its duty to defend. See, e.g., Newhouse, 176 Wis.2d at 835, 501 N.W.2d at 5 (<HOLDING>); Patrick v. Head of Lakes Cooperative Electric Holdings: 0: holding that insurer was liable for amount in excess of policy limits because it breached its duty to defend 1: holding that insurer had a continuing duty to defend 2: holding that because the insurer had a duty to defend it was beyond peradventure that it breached the insurance policy in not doing so thereby causing defendant to incur unnecessary legal expenses 3: holding assignable to injured party insureds claim against insurer for judgment in excess of policy limits 4: holding on summary judgment before the question of the insurers obligation to indemnify was decided that the insurer was liable for the costs of the insured in defending the declaratory judgment action because it breached its duty to defend


Input: probably would result in an acquittal or life sentence on retrial. 1. Evidence In determining whether newly discovered evidence would probably result in an acquittal or a lesser sentence, the new evidence must be viewed in conjunction with the evidence presented at trial. Thus, the Court evaluates all the admissible newly discovered evidence, including any admissible newly discovered evidence presented in prior postconviction proceedings, and compares it with the evidence that was introduced at trial. Marek erroneously contends that the Court also must consider all of the evidence he presented in his prior postconviction proceedings in an effort to establish ineffective assistance of trial counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (<HOLDING>). Marek overlooks that throughout the extensive Holdings: 0: holding that to demonstrate a claim of ineffective assistance of counsel petition must establish that the alleged error was prejudicial in fact 1: holding that where trial counsel was not ineffective appellate counsel was not ineffective for failing to raise claim of ineffectiveness of trial counsel 2: holding that to demonstrate deficient performance a petitioner must show counsel made errors so serious that counsel was not functioning as the counsel guaranteed a defendant by the sixth amendment 3: holding that to establish a claim of ineffective assistance of counsel a defendant must demonstrate that counsel was constitutionally deficient and as a result defendant was prejudiced 4: recognizing a constitutional claim for ineffective assistance of counsel


Input: under § 523(a)(4). Cobham appeals. We review the judgment of a district court sitting in review of a bankruptcy court de novo, applying the same standards of review that were applied in the district court. In re Shangra-La, Inc., 167 F.3d 843, 847 (4th Cir. 1999). Specifically, the bankruptcy court’s factual findings are reviewed for clear error, and legal determinations are reviewed de novo. Fed. R. Bankr. P. 8013; In re K & L Lakeland, Inc., 128 F.3d 203, 206 (4th Cir. 1997). We have reviewed the record included on appeal, and the parties’ briefs, and find that the bankruptcy court correctly determined that LeCann met her burden of establishing that the debt at issue is non-dischargeable under § 523(a)(6). See Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (<HOLDING>). Accordingly, we affirm on the bankruptcy Holdings: 0: holding that appellant bears burden of establishing jurisdiction by a preponderance of the evidence 1: holding that the defendant bears the burden of proving outside contact with the jury 2: holding that the party challenging the dischargeability of a debt bears the burden of proving the debt nondischargeable by a preponderance of the evidence 3: holding that a creditor objecting to the dischargeability of a debt under  523a must prove its case by a preponderance of the evidence 4: holding that effect of discharge of debt under bankruptcy code is the same as it was under the 1898 bankruptcy act it is not an extinguishment of the debt but only a bar to enforcement of the debt as a personal obligation of the debt or


Input: indemnification claim. V. Beazer challenges on two grounds the court’s entry of judgment against it and in favor of Agrico on Agrico’s equitable indemnification claim. First, Beazer contends that under controlling .South Carolina law, equitable indemnification lies only between parties having a contractual or special relationship that did not exist between Beazer and Agri-eo. Second, Beazer contends that equitable indemnity does not lie in favor of a party that itself is at fault in causing the injury for which indemnification is sought and that here Agrico was so at fault. We disagree on both points and find no error in this part of the court’s judgment. Judgment was entered only for litigation costs incurred by Agrico in defending against Dent’s 22, 301 S.E.2d 552, 553 (1982) (<HOLDING>). Here, the jury, answering an interrogatory Holdings: 0: holding that an indemnitee must be proven to be free of negligence in order to receive indemnity either under a general indemnity agreement or under implied indemnity 1: holding that a shoulder purse carried by a person at the time he is stopped lies within the scope of a warrant authorizing the search of his person 2: recognizing that the determination is an equitable one 3: holding that equitable indemnity lies where one person is exposed to liability by the wrongful act of another in which he does not join 4: holding that duty not to cause injury to another by ones negligent act is too broad to serve as a basis for permitting indemnity


Input: 287 F.3d at 873; see Fed. R. Civ. P. 56(e). If a trademark that is descriptive lacks secondary meaning, it is invalid. Bada Co. v. Montgomery Ward & Co., 426 F.2d 8, 11 (9th Cir. 1970). To acquire secondary meaning, section 1052(f) requires that the mark must have become “distinctive of the applicant’s goods.” 15 U.S.C. § 1052(f); Filipino Yellow Pages, 198 F.3d at 1147. “The basic element of secondary meaning is a mental recognition in buyers’ and potential buyers’ minds that products connected with the [mark] are associated with the same source.” Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817, 820 (9th Cir. 1980). A mark has acquired secondary meaning if buyers and potential buyers automatically associate the mark with Plaintiff. Self-Realization Fellowship, 59 F.3d at 911-12 (<HOLDING>). There are many ways to establish if a Holdings: 0: holding plaintiff failed to establish selfrealization acquired secondary meaning because members of the american hinduyoga community believed the mark was a spiritual state of mind and did not automatically associate a selfrealization product with plaintiff 1: holding limited use of a mark did not constitute prior use in commerce sufficient to establish rights in the mark 2: holding that mark had not acquired secondary meaning even with advertisements costing 4400000 over five years because it did not lead consumers to associate plaintiffs mark with its products 3: holding that plaintiff failed to establish pretext where plaintiff was terminated after the employer conducted an investigation into a subordinates allegations of misconduct on the part of the plaintiff and believed the allegations to be true even though plaintiff presented evidence in the lawsuit that the allegations may have been false 4: holding that copying is only evidence of secondary meaning if the defendants intent in copying is to confuse consumers and pass off his product as the plaintiffs in that situation the defendants belief that plaintiffs trade dress has acquired secondary meaning  so that his copying will indeed facilitate his passing off  is some evidence that the trade dress actually has acquired secondary meaning


Input: Act, 15 U.S.C. § 1011 et seq. in interpreting ERISA's saving clause. Pilot Life, 481 U.S. at 48, 107 S.Ct. at 1553. 13 . See S.C. Police Officers Retirement System v. Spartanburg, 301 S.C, 188, 391 S.E.2d 239 (1990) (requiring municipal employer to contribute to retirement program to enable employee to upgrade his benefits despite the fact that employee had failed to file a written request and pay a special contribution prior to retirement in strict compliance with the governing statute); Wright v. Southern Ry, 74 S.C. 27, 54 S.E. 211 (1906) (finding substantial compliance with provisions relating to service of notice upon the magistrate). Substantial compliance has also been applied in the insurance context. Home v. Gulf Life Ins. Co., 277 S.C. 336, 287 S.E.2d 144 (1982) (<HOLDING>). 14 . In Wilkie, the court analyzed a Holdings: 0: holding that a contractor who had substantially complied with the building specifications substantially performed 1: holding that an insured has substantially complied with the change of beneficiary provisions of a life insurance policy when he has done all that he could to comply with the provisions 2: holding that insured substantially complied with the manner of changing the beneficiary as required by the policy 3: holding that insured had not substantially complied with the policys change of beneficiary provisions when the hospitalized insured was physically unable to leave her bed and was unable to retrieve the policy from her lock box at the bank to return to the company for endorsement as required by the terms of the policy 4: holding that the named insured was using an automobile when changing its tire


Input: leave at “[her] doctor’s request.” Thomas Aff. ¶ 31. If a jury were to conclude that Plaintiff left such voicemail—a fact that Defendant contests—it could find that Plaintiff satisfied the content of notice requirement under 29 C.F.R. § 825.303(b). Defendant’s Motion for Summary Judgment regarding Plaintiffs FMLA and DCFMLA unlawful denial claims is therefore denied. B. Plaintiffs Retaliation Claim under the FMLA and DCMLA Defendant also has moved for summary judgment on Plaintiff’s claims for retaliation under the FMLA, Am. Compl. ¶¶ 81-88, and the DCFMLA, Am. Compl. ¶¶58-65. Def.’s Mot. at 15-17. Both statutes prohibit retaliation against an employee who (1) exercises, or attempts to exercise, any right provided under the statute, see 29 U.S.C. § 2615(a)(1); Gordon, 778 F.3d at 161 (<HOLDING>); D.C. Code Ann. § 32-507(a); or (2) “opposfes] Holdings: 0: holding that a claim for retaliation does not lie under title ix 1: holding plaintiff did not exhaust his retaliation claim where his eeoc charge made no mention of retaliation 2: recognizing a retaliation claim arising under  2615a1 3: recognizing first amendment retaliation right 4: holding that a plaintiff can prove illegal retaliation under   1981 in the same manner as he establishes retaliation under title vii


Input: the guideline offense level for a drug offense), he was a potential government witness at sentencing, and Cogswell did not know whether Lewis would be called to testify at sentencing. See United States v. McMinn, 103 F.3d 216, 218-19 (1st Cir.1997) (finding enhancement applicable when defendant threatened someone who “remained a prospective government witness” in further proceedings against defendant); see also United States v. Boyd, 574 Fed.Appx. 878, 879-80 (11th Cir.2014) (unpublished) (upholding enhancement where defendant threatened a witness after defendant had pleaded guilty and was awaiting sentencing because defendant “did not know whether [the witness’s] testimony would be used against him at sentencing”); United States v. Rubio, 317 F.3d 1240, 1244-45 (11th Cir.2003) (<HOLDING>). Cogswell’s other contention — that 'the Holdings: 0: holding that we are not persuaded by defendants contention that an assault did not take place because he never made physical contact with the weapon in light of the evidence showing that the gun was only inches from defendants outstretched hand and that defendant was actively forcefully and to some degree successfully resisting the officers attempt to arrest him we do not believe in light of our states definition of assault that defendants failure to physically touch the weapon precludes the commission of an assault with the firearm 1: holding that an assault that occurred immediately after the employee was discharged was in the course of the employment 2: holding that an obstructionofjustice enhancement was appropriate based on the defendants assault on a witness after trial and rejecting the defendants argument that because the assault occurred after trial it could not impact the prosecution of his case 3: holding that the trial court in a sexual assault case erred by refusing to allow evidence of prior testimony by the complainant in an unrelated rape prosecution 4: holding that consent is not a defense to the charge of second degree assault where the assault occurred in the context of a prison fight between inmates


Input: likely to cause material harm to the defendant’s right to a fair trial.” Id., at 8. It further pointed out that the news media in that case had been allowed access to materials considered in connection with a motion for summary judgment and that this was consistent with “a public right of access to materials considered in rulings on dispositive pre-trial motions . . .” Id., at 8. The Court held, however, that the right to public access “does not extend to documents submitted to a court in connection with discovery proceedings,” id., at 11, and concluded that “discovery proceedings are fundamentally different from proceedings to which the courts have recognized a public right of F.2d 139, 146-48 (2nd Cir. 1987), cert. denied, sub nom. Dow Chem. Co. v. Ryan, 484 U.S. 953 (1984) (<HOLDING>). In doing so, the Court stressed that (unlike Holdings: 0: holding that the district court did not abuse its discretion when it modified a protective order after settlement to permit public access to pretrial materials in spite of a protective order to the contrary which it viewed as having had been initially justified 1: holding that a publishing company had no constitutional or other right of access to pretrial documents not filed with the court and declining to overturn the district courts denial of a motion to vacate a protective order to which the parties had stipulated 2: holding that issuance of a protective order or other probable cause of abuse precludes court ordered mediation 3: holding that protective orders in the landlord and tenant branch are distinguishable from ordinary prejudgment security devices because protective orders are not statutory creations and because a tenant who fails to pay a protective order may suffer the irreparable consequence of losing possession of the property 4: holding that court did not abuse its discretion by granting defendants a protective order where plaintiff failed to request discovery until nine days before the deadline


Input: Let us say we have a trial against the asbestos companies and the plaintiffs lose because the plaintiff is found to have not been exposed to asbestos in a way in which exposure was a substantial factor in producing the plaintiff’s injuries. Now, what happens in a case where we proceed against the tobacco companies? Are we collaterally estopped from asserting a synergy argument against the tobacco companies because a jury has formerly held that the plaintiffs injury was not caused by asbestos? And despite that, can the tobacco companies nonetheless proceed and enter a defense and argue to a jury that in fact it's asbestos that caused the injury and not. tobacco? 9 . In Forbes v. American Tobacco Co., 37 F.R.D. 530 (E.D.Wis.1965), the court severed claims again 9, 641-42 (N.D.Ga.1993) (<HOLDING>); Hanes Dye and Finishing Co. v. Caisson Corp., Holdings: 0: holding joinder of two defendants was proper where plaintiffs filed a products liability claim against general motors and a negligent roadway design claim against a local government for injuries caused by an automobile accident 1: holding automobile exclusion in general liability policy did not apply because plaintiffs claim of negligent supervision and training was a separate and distinct theory of recovery from the use of an automobile 2: recognizing that limitation of coverage in automobile liability policy to  accident s  was founded on the elemental proposition that injuries will not be deemed caused by accident where the injuries are intentionally inflicted this generally being considered a risk which it would be against public policy to insure 3: recognizing products liability and products actions based on negligence as part of the general maritime law 4: holding joinder of a hospital medical malpractice claim and a drug manufacturer products liability theory was proper in claim alleging injury from administering a drug


Input: insufficient to justify reversal.” Fritz, supra, 105 N.J. at 44, 519 A.2d 336. Only after evaluating the specific claims asserted at the PCR hearing may we determine whether counsel’s failure to introduce mitigating evidence prejudiced defendant. Although the lack of sufficient time to prepare for trial can support an ineffective-assistance-of-counsel claim, a defendant generally may support that claim with proof of specific evidence adduced at a post-conviction hearing, but not at the original trial. See Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir.1995) (finding prejudice in sentencing proceedings where counsel failed to present pertinent evidence of mental history and mental capacity discovered at post-sentencing hearing); Blanco v. Singletary, 943 F.2d 1477, 1501-02 (11th Cir.1991) (<HOLDING>); State v. Tokman, 564 So.2d 1339, 1345 Holdings: 0: holding that mayfield was prejudiced by his defense counsels failure to present all the available mitigating evidence although the aggravating evidence against mayfield was strong and the mitigation evidence presented  was substantial 1: holding trial counsels failure to investigate and present substantial mitigation evidence during the sentencing phase can constitute ineffective assistance of counsel 2: holding that mental health evidence could be mitigating at the penalty phase even though it is insufficient to establish a legal defense to conviction in the guilty phase 3: holding that defendant was prejudiced at sentencing phase by counsels failure to discover and present any available mitigating evidence concerning defendants impoverished childhood epileptic seizures and organic brain damage 4: holding that any relevant mitigating evidence concerning a defendants character should not be excluded


Input: CURIAM. AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979) (<HOLDING>). GRIFFIN, THOMPSON and MONACO, JJ., Holdings: 0: holding that it is the appellants burden to present a record to overcome the presumption of correctness of the trial courts findings 1: holding that it is the duty of the appellant to overcome the presumption of the correctness of the trial courts judgment by demonstrating some reversible error 2: holding that where the appellant has failed to demonstrate error the court is not required to search the record for an error 3: holding that in appellate proceedings where no transcript is provided a trial courts decision has the presumption of correctness and the burden is on the appellant to demonstrate error 4: holding that appellate review of hearsay issues is de novo with no presumption of correctness


Input: habeas federal district court failed to consider the substance of the statutory defense coded at ... § 25 ... when [it] deferred to the state [court’s] ... dismissal .... ”); and 3 (“The federal district court[’s] procedural ruling erred in determining that the State courts had made an ‘adequate’ determination within the meaning of 28 U.S.C. § 2254(d).”). We therefore deny COA on this argument. B. Allegedly Perjured Testimony Mr. Clark argued in his habeas petition that his due process rights had been violated because a witness falsely testified that she attended school with him. The district court held that such an allegation of state trial error did not present a federal question cognizable in a federal habeas corpus action. See Brinlee v. Crisp, 608 F.2d 839, 843 (10th Cir.1979) (<HOLDING>). The court held that Mr. Clark had failed to Holdings: 0: holding that an error pertaining to a mixed question of law and fact under state law is not cognizable in a federal habeas proceeding 1: holding that claims of mere state court procedural or trial error not resulting in a deprivation of fundamental rights were not cognizable in a federal habeas corpus action 2: holding that the federal habeas corpus court could reach the merits of a due process claim even though there was no contemporaneous objection in state court trial where the state habeas corpus court reached the merits rather than rely on the procedural default defense 3: holding that consideration of a claim in a petition for habeas corpus can be barred by failure to comply with state procedural rules 4: holding that federal habeas corpus relief does not lie for errors of state law


Input: and try to keep him from being an interruption to operations.” (Doc. 122-3 at 9). In making this argument, the Plaintiff fails to appreciate that less than one hour before Stanfill was placed in the restraint chair, he had tied a tourniquet around his arm, somehow removed a metal button from his prison jumpsuit, cut his wrist or arm, and sprayed blood across his cell. Even discounting Wheat’s claim that Stanfill expressly threatened suicide on July 2, given Carrick and Wheat’s familiarity with Stanfill’s history of self-mutilation, coupled with his most recent cutting incident on July 2, there was a need for the application of some force. Carrick and Wheat’s decision to use force was not unreasonable under the circumstances. See Campbell v. Sikes, 169 F.3d 1353, 1374-77 (11th Cir.1999) (<HOLDING>). b. Relation Between Need and Amount of Force Holdings: 0: holding that the decision of a police officer to preserve public safety and order through use of commands backed by threat of force or actual use of physical force is a matter of discretion 1: holding that an officers use of force against a plaintiff was objectively reasonable considering the force the plaintiff herself exercised in resisting police custody 2: recognizing that use of l shaped restraint and straightjacket was a permissible use of force on prisoner who had taken affirmative acts towards harming herself and posed a serious threat of further selfharm 3: holding that an officer cannot use deadly force unless a suspect poses an imminent threat of serious physical harm 4: holding the use of deadly force is constitutionally permissible only if the officer has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer or to others


Input: failure to establish requirements or policies has allowed private driver education schools to be inaccessible. Thus, the DOJ’s interpretative guidance indicates that the TEA is not accountable for the driver education schools’ inaccessibility because the TEA’S requirements and policies have not caused it. Finally, as to case law, the named plaintiffs cite two lottery cases as their primary authority for finding that driver education is a program of the TEA. In those state supreme court cases, each court held that the state lottery was a program of the state lottery commission, so the ADA relationship, courts have routinely held that a public entity is not hable for a licensed private actor’s behavior. See, e.g., Noel v. N.Y.C. Taxi & Limousine Comm’n, 687 F.3d 63, 72 (2d Cir.2012) (<HOLDING>); Bascle v. Parish, No. 12-CV-1926, 2013 WL Holdings: 0: holding that public entity is not liable for inaccessible taxi companies it licenses and regulates 1: holding that city is not liable for inaccessible restaurants and liquor stores it licenses 2: holding that the crucial distinction that rendered the public entity liable for a private actors inaccessibility was that the public entity had contracted with the private actor for it to provide aid benefits or services to beneficiaries of the public entitys redevelopment program 3: holding that public utility company is not liable for inaccessible bus company it licenses where there is no contract between them 4: holding that if property is not property1 of the public entity then the public entity cannot be subject to suit under the dangerous condition waiver


Input: lawful arrest. Regarding the § 1983 claim, they were instructed that appellant had to establish that the officers used “excessive and unnecessary force to arrest him and hold him thereafter.” The jury’s verdict can be reconciled only if a distinction can be made between unreasonable force and excessive or unnecessary force. Although appellant argues that the jury could have found a § 1983 violation based on the denial of medical assistance, the jury was not instructed on this theory, nor was it argued by appellant’s counsel, and appellant did not object to the lack of such an instruction. Similarly, there was no instruction on negligent misuse of authorized force, nor any claim that the officers’ actions were other than intentional. Cf. Wilson v. Beebe, 743 F.2d 342, 350 (6th Cir.1984) (<HOLDING>). A jury’s answers in a special verdict should Holdings: 0: holding an agents false statements reckless because she was aware of the true facts surrounding the suspects arrest 1: holding a suspects request for some time to think alone was not an invocation of the right to silence 2: holding that a suspects ability to proffer an innocent explanation for the facts does not negate probable cause 3: holding cocked pistol to suspects head showed reckless disregard for suspects rights 4: holding that an officer may search a suspects vehicle incident to a lawful arrest


Input: in granting summary judgment in favor of the Newmont Defendants. Defendants also fail to establish that Plaintiffs could not have survived a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), nor do they present certain facts which would permit this Court to enter into a more detailed analysis of the law. Although Defendants do not adequately brief this Court with regard to whether or not the issue of law on which the state court granted summary judgment was “well-settled,” the Court has considered the state court’s opinion carefully. The decision primarily relies on a 1983 ease where a landowner-contractee was sued by an employee of the landowner’s contractor while working on a job on the property. See Sierra Pacific Power Co. v. Rinehart, 665 P.2d 270, 99 Nev. 557 (<HOLDING>). This Court notes, however, that several Holdings: 0: recognizing duty of care owed by business invitor to invitee 1: recognizing that a construction contract implicitly imposes a duty on contractors to perform work according to the standard of due care 2: holding that the citys acceptance or nonacceptance of the contractors work would have no bearing on the issue of the contractors liability since it was his primary and active negligence that created the dangerous situation and the citys negligence in failing to remedy the situation would be only secondaiy and passive 3: holding that a landowner owed no duty of care to a contractors employee in the situation posed by the parties 4: holding that a landowner may be liable for injuries to an independent contractors employee if the hazard ous condition was not open and obvious if the condition was not a necessary consequence of the construction and if the landowner maintained possession and control of the premises


Input: that only rules of damages are substantive. Prior to Monessen, the United States Supreme Court had already decided that prejudgment interest is a form of “actual damages” and that damages are substantive. See id. Thus, no further analysis was needed to determine that prejudgment interest was substantive. Moreover, the United States Supreme Court has found other state laws that have no relationship to damages to be substantive in FELA cases. See, e.g., Dice v. Akron, Canton & Youngstown R.R., 342 U.S. 359, 363, 72 S.Ct. 312, 96 L.Ed. 398 (1952) (concluding that the right to have a jury decide factual issues of fraud is “too substantial a part of the rights accorded by [FELA] to permit it to be classified as a mere local rule of procedure’ ”); Brown, 338 U.S. at 299, 70 S.Ct. 105 (<HOLDING>); White, 238 U.S. at 511-12, 35 S.Ct. 865 Holdings: 0: holding that state courts must apply the federal pleading standard in fela cases 1: holding that in diversity cases federal courts are to apply state substantive law and federal procedural law 2: holding that litigants may enforce fela in state courts as a matter of right but also observing that state courts are free to apply their own modes of procedure to fela cases 3: recognizing that the federal pleading standard is a less stringent standard than the delaware pleading standard 4: holding that federal courts must apply state substantive law in diversity cases


Input: there is consensus about a starting point. Courts agree that a “market” rate of interest should apply. See Koopmans, 102 F.3d at 874-75; In re Smithwick, 121 F.3d at 214; In re Valenti, 105 F.3d at 63; GMAC, 999 F.2d at 66-67; United Carolina Bank, 993 F.2d at 1129-30; In re Fowler, 903 F.2d 694, 697 (9th Cir.1990); In re Hardzog, 901 F.2d at 859-60; Arnold, 878 F.2d at 927-28; see also Pearson, supra at 40-41; Epstein, supra at 443. There is disagreement, however, about what rate of interest will adequately ensure that the creditor receives full value of his secured claim. 1. Under one approach, known as the “cost of funds method,” the interest rate is set at the rate the creditor would have to pay to borrow the amount equal to the collateral’s value. See In re Valenti 105 F.3d at 64 (<HOLDING>); 8 Lawrence P. King et al., Collier on Holdings: 0: holding that although cost of funds approach more appropriately reflects the present value of a creditors allowed claim it is difficult to administer and therefore the interest rate should be fixed at the rate on a united states treasury instrument with a maturity equivalent to the repayment schedule under the debtors reorganization plan 1: holding that bankruptcy plan of reorganization rather than  1961 controlled the setting of the interest rate 2: holding that the petitioner can claim no rate as a legal right  other than the filed rate whether fixed or merely accepted by the agency commission 3: holding that once a rate is filed with the appropriate agency except for review of the agencys orders the courts can assume no right to a different rate on that ground that in its opinion it is the only or the more reasonable rate 4: holding that the proper rate for prejudgment interest is the rate fixed by the parties in a contract


Input: Joint neither withheld nor paid payroll taxes or employment taxes for Mr. Weaver, and Mr. Weaver was issued an IRS Form 1099 at the end of each year. Joint, however, maintains that it considered Mr. Weaver to be an independent agent for tax purposes only. In May 2011, Mr. Weaver terminated the Agreement. Joint filed the First Lawsuit two months later. Mr. Weaver moved for summary on Joint’s contract claims. He asserted the Agreement was illegal (and therefore unenforceable under Oklahoma law) because Joint paid him as an independent contractor to induce patient referrals for the furnishing of Medicare/Medicaid-covered equipment, in violation the Medicare Anti-Kickback Act (the Act), 42 U.S.C. § 1320a-7b(b)(2)(A). See United States v. McClatchey, 217 F.3d 823, 835 (10th Cir.2000) (<HOLDING>). Joint countered that the Agreement was legal Holdings: 0: holding that the person who travels as an agent of person defrauded is a victim 1: holding that a threat to harm another person is a crime of violence 2: holding that a person who offers or pays remuneration to another person violates the act so long as one purpose of the offer or payment is to induce medicare or medicaid patient referrals 3: holding that attorneys claim for professional services against person sui juris or against property of such person must rest upon contract of employment express or implied made with person sought to be charged or with his agent 4: holding that a state was embraced within the meaning of the word person  where the word person was defined as meaning and including a partnership association company or corporation as well as a natural person


Input: cannot remember from one moment to the next what has previously transpired in the proceeding can not fairly preside over the cause. It is the intuitive recognition of this precept that frequently generates alarm among the parties when a substitution of judges occurs during or immediately after trial. Thus, a judge’s recollection of previous proceedings in the cause cannot be characterized as “testimony.” Third, Tyler dealt with a hearing on a writ of habeas corpus which rests directly upon a constitutional foundation. Here, the trial judge was presiding over a motion for new trial derived from rules of appellate procedure. See Tex.R.App. P. 21.1—21.9; see also Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992); Fuentes v. State, 960 S.W.2d 926, 927 (Tex.App.-Texarkana 1998, no pet.) (<HOLDING>). Thus, any constitutional error occurring here Holdings: 0: holding that there is no federal or colorado constitutional right to postconviction counsel but there is a limited statutory right 1: recognizing tjhere is no general constitutional right to discovery in a criminal case 2: holding that it is well settled that there is no constitutional right to an appeal 3: holding that there is no federal constitutional right to a bifurcated criminal trial 4: holding that there is no constitutional right to appeal a criminal conviction


Input: the crimes were not “continuing offenses” and the alien was “free to cease his purposeful acts” at any time. Id. at 385-86. Again resorting to analogy, the Board stated that [r]obbery involving separate persons at different times, false pretenses involving distinct offenses, forgery and uttering of different checks at different times, after conviction, have been held as not arising out of a single scheme of criminal misconduct. On the other hand, we feel that a single scheme of criminal misconduct is present, if in the preformance [sic] of one unified act of criminal misconduct several criminal offenses (for example, breaking and entering followed by larceny or an attempt to escape after an assault) are committed. Id. at 386 (citation omitted). In In re Adetiba, the Board uphe ) (<HOLDING>), cert. denied, 430 U.S. 985, 97 S.Ct. 1683, 52 Holdings: 0: holding a defendant found in possession of three or more copies of the same article of child pornography during a single episode may only be prosecuted for a single count of possession with intent to promote 1: holding that two separate incidents of rape were perpetrated against the same victim where an appreciable period of time elapsed between the incidents and intervening events occurred during the interim 2: holding two instances of violating  148 were two offenses because thirty minutes elapsed between the two incidents and in the intervening space of time the defendant had completely calmed down and ceased his criminal activity 3: holding that two breaking and entering incidents that were separated by two days of time were not pursuant to a single scheme even though both may have occurred during a continuous drinking binge the court equated single scheme with a temporally integrated episode of continuous activity 4: holding that when two penetrations were separated by a short period of time two independent assaults occurred


Input: to possessing cocaine with intent to distribute on July 3, 2002, and approximately thirty-nine grams of cocaine was seized that day. An offense involving 25-50 grams of cocaine has a base offense level of 14, USSG § 2Dl.l(c)(14), while a base offense level of 26 applies when the offense involved 500 grams to two kilograms of cocaine. USSG § 2Dl.l(c)(7). However, in her presentence interview, Turner admitted to facts that justified the base offense level of 26. Turner told the probation officer that she and Spence began buying a kilogram of cocaine every other week in October 2001 and, before their arrest in July 2002, were distributing a kilogram of cocaine every other week. Therefore, no Sixth Amendment violation occurred. United States v. Evans, 416 F.3d 298, 300-301 (4th Cir.2005) (<HOLDING>). We review the district court’s decision that Holdings: 0: holding that there is no sixth amendment error when the sentence does not exceed the maximum authorized by facts the defendant admitted 1: holding that a defendant could not assert an error under apprendi v new jersey because his sentence does not exceed the statutory maximum 2: holding no sixth amendment violation occurred because the defendant chose to testify at sentencing and admitted the facts upon which the court imposed sentence 3: holding apprendi is not implicated where sentence does not exceed statutory maximum sentence authorized for the offense in its simplest form 4: holding that where the defendants sentence does not exceed the statutory maximum and the district court applies the guidelines as advisory the district court does not err by enhancing the defendants sentence based on facts not charged in the indictment or admitted by him


Input: 537 A.2d at 615. In reviewing the appellants’ claim to a legitimate expectation of privacy in the apartment, this Court concluded that: [Wjhile appellants’ counsel’s assertion that the appellants were “invitees” did not constitute evidence, it was confirmatory of the apparent earlier concession by the prosecutor that the appellants were in the apartment at the invitation of the lessee. Moreover, there was an indication ... that on several occasions ... appellant Ricks, used a key to gain entrance, either to the building in which the apartment was located, or into the apartment itse 82, 383 (2002) (stating that “defendant, at best a transient squatter, had no constitutionally-reasonable expectation of privacy.”); Commonwealth v. Cameron, 385 Pa.Super. 492, 561 A.2d 783, 787-88 (1989) (<HOLDING>); Commonwealth v. Peterson, 408 Pa.Super. 22, Holdings: 0: holding that squatter had no standing to challenge search of abandoned apartment which he had occupied solely for the business of packing for distribution for narcotics 1: holding that squatter had no reasonable expectation of privacy and therefore no fourth amendment standing to challenge search of abandoned structure 2: holding that squatter had no standing to challenge search of abandoned house where he was staying 3: holding that squatter had no standing to challenge search of abandoned apartment because hardly more than a fugitive presence would not be one that could be accepted by society 4: holding that passengers lacked any reasonable expectation of privacy and therefore had no standing to challenge the search of the vehicle


Input: in addressing jury questions. But we know that “analytically correct” answers to a jury may unnecessarily — and improperly — influence a jury. See Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir.2003); see also id. at 994-98 (discussing cases). Furthermore, even if not improper, we recognize that some influence on the jury’s deliberations is difficult to avoid when the jury is troubled enough to seek advice. “The influence of the trial judge on the jury is necessarily and properly of great weight.... Particularly in a criminal trial, the judge’s last word is apt to be the decisive word.” Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 90 L.Ed. 350 (1946) (internal quotation marks and citations omitted); cf. United States v. Sacco, 869 F.2d 499, 501-02 (9th Cir.1989) (<HOLDING>); United States v. Frazin, 780 F.2d 1461, 1469 Holdings: 0: holding that sufficiency of the evidence review should be independent of the jurys determination that evidence on another count was insufficient 1: holding that suppression of evidence by the prosecution of evidence favorable to the defendant upon request violates the defendants right to due process where the evidence is material 2: holding prosecutors argument that defense counsels goal was to keep evidence from the jury was improper 3: holding that defendant failed to preserve for appeal argument that trial court inadequately recharged the jury after jury requested a written definition of a charge when after discussing the issue defendant explicitly agreed with trial courts response to the jurys request 4: recognizing that a careful response to a jurys request for specific pieces of evidence can keep the jury from overvaluing any one piece of evidence


Input: the reasonableness inquiry into his unavailability,” the district court appropriately concluded that there was no Ninth Circuit precedent directly addressing the key issue raised in this appeal. V Several of our sister circuits, as well as a district court in our own circuit, have however, “addressed the issue of whether the government’s conduct in a case involving alien witnesses who subsequently left the United States was reasonable and in good faith.” See, e.g., Wilson, 36 F.Supp.2d at 1181-82 (surveying cases from the First, Fourth, Fifth, Eighth, and Tenth Circuits, before concluding that the government has a duty to make reasonable and good faith efforts to procure the witness’s attendance at trial before the witness leaves the United States); see also Mann, 590 F.2d at 368 (<HOLDING>); United States v. Guadian-Salazar, 824 F.2d Holdings: 0: holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify the claimant must allege 1 the identity of the potential witness 2 that the witness was available to testify at trial 3 the substance of the witnesss testimony and 4 an explanation of how the omission of the testimony prejudiced the case 1: holding that testimonial hearsay statements of a witness who does not appear at trial are inadmissible under the confrontation clause of the sixth amendment unless the witness is unavailable to testify and the defendant has had a prior opportunity to crossexamine the witness 2: holding that the jury could have reasonably inferred the requisite intent to induce the witness to lie or testify falsely from the defendants statements to the witness 3: holding that promises made by the prosecution to a witness in exchange for that witness testimony relate directly to the credibility of the witness 4: holding that though the government acted reasonably and in good faith in trying to convince a witness to return to testify for trial the witness was not unavailable under rule 804a5 because the government made the witnesss departure from the country possible


Input: has the right, and the ready ability, to obtain copies of documents gathered or created by its attorneys pursuant to their representation of that client, such documents are clearly within the client's control."); 7-34 James C. Francis & Robert M. Bloom, Moore's Federal Practice-Civil § 84.14 (2011) ("Documents in the possession of a party's attorney may be considered to be within the control of the party within the meaning of Rule 34.... In addition, 'if an attorney comes into possession of a document as attorney for that party his [or her] possession of the documents is the possession of the party'" (footnotes and citations omitted)). Because this court has similarly defined "control," see Michael v. John Hancock Mut. Life Ins. Co., 138 Colo. 450, 454, 334 P.2d 1090, 1093 (1959) (<HOLDING>), I would hold that such documents are within a Holdings: 0: holding that possession custody or control in crcp 26 and 34 requires the production of doeuments which are obtainable by the order or direction of the litigant 1: holding that possession of a pistol in public requires knowing possession 2: holding that once the defendant has submitted to the control of the officer and the process of taking him or her to the police station  has commenced his or her arrest is complete and he or she is in custody for the purposes of the escape statute 3: holding that the phrase possession or custody in  5225b requires actual and not merely constructive possession 4: holding that ownership or possession or actual control is needed


Input: and impose a prison term up to the statutory maximum, Ra-gin’s revocation sentence is not clearly unreasonable. Therefore, we conclude that Ragin’s sentence is not plainly unreasonable. Accordingly, we affirm the district court’s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED. * Even assuming that over-service of Ragin’s sentence was not a proper basis for the downward variance, consideration of this factor benefited Ragin. Under the "party presentation principle ... an appellate court may not alter a judgment to benefit a nonappealing party." Greenlaw v. United States, 554 U.S. 237, 244-45, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) Holdings: 0: holding that the failure to charge an essential element of a crime in the indictment is an error which should be noted by an appellate court sua sponte as plain error 1: recognizing that a district court may sua sponte dismiss a complaint for failure to serve after notice to the plaintiff 2: holding that in the absence of a government crossappeal an appellate court may not sua sponte correct a district court error if the correction would be to the defendants detriment 3: holding that in admitting evidence the failure of the trial court to give a limiting instruction sua sponte is not reversible error 4: holding in a case considering whether the trial court should have conducted a competency hearing sua sponte that an appellate court may only consider those facts which were before the court when the trial commenced


Input: has been “officially declared” in a statute or municipal regulation, or in the Constitution, that a new exception [to the at-will doctrine] is needed.’ ” Fingerhut v. Children’s Nat’l Med. Ctr., 738 A.2d 799, 803-04 (D.C.1999) (quoting Carl, 702 A.2d at 164 (Terry, J., concurring)). The employee must then show “ ‘a close fit between [that] policy ... and the conduct at issue in the allegedly wrongful termi nation.’ ” Id. at 803 n. 7 (quoting Carl, 702 A.2d at 164 (Terry, J., concurring)). Critically, we have repeatedly acknowledged the limited reach of this tort and indicated that a plaintiff seeking recovery thereunder must show that her protected activity was the predominant cause of her termination. See Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 886 (D.C.1998) (<HOLDING>); see also Fingerhut, 738 A.2d at 803-04 & n. 7 Holdings: 0: recognizing public policy exception to atwill doctrine 1: holding that an employee could maintain a claim for constructive discharge in violation of virginias public policy exception to the employment atwill doctrine 2: recognizing such an exception 3: holding that it takes more than the plaintiff has alleged to invoke a public policy exception to the atwill doctrine and that plaintiffs wrongful termination claim failed where her own complaint reveals that she was not terminated solely or even substantially for engaging in conduct protected by such an exception footnote omitted 4: recognizing exception to atwill employment doctrine where employee is terminated by employer for refusing to violate municipal regulation


Input: “sucks” is inappropriate for children when used in the phrase ‘WAR SUX” is also an issue requiring factual development. As DeVarti notes, some children’s literature uses the popular slang “suck,” and given its popular usage, it is at least unclear whether any viewer of the phrase WAR SUX” would interpret the word in a sexual manner. See Seth Stevenson, Suck It Up: A defense of the much-maligned word, available at http://www.slate.com/articles/life/ the_good_word/2006/08/suck_it_up.html. Finally, the Court has serious doubts that the “captive audience” doctrine applies in this case. The Supreme Court has “applied the captive audience doctrine only sparingly to protect unwilling listeners from protected speech.” Snyder v. Phelps, 562 U.S. 443, 131 S.Ct. 1207, 1220, 179 L.Ed.2d 172 (2011) (<HOLDING>). Courts generally apply the doctrine only in Holdings: 0: holding that a funeral attendee who observed the tops of protest signs when driving to the funeral was not captive to the message 1: holding that a law prohibiting signs on public property in order to preserve aesthetics could be applied to politicalcampaign signs 2: holding that statute prohibiting driving while intoxicated applied to defendant driving on a private parking lot 3: holding that there was probable cause to arrest defendant for dui where among other factors the officer observed defendant driving erratically and defendants eyes were glassy 4: holding that there was insufficient evidence to establish that defendant had knowledge of firearm in close proximity to him when he was driving the car for the cars owner who was a passenger


Input: under this section there shall be no authority after September 1, 1959[,] ... (2) to make an award to any person of gratuitous benefits based on any period of military, naval, or air service commencing before the date of commission of the offense. 38 U.S.C. § 6104(a), (e)(2). B. Application of Law to Facts 1. New and material evidence. The July 1977 final RO decision forfeiting the veteran’s benefits was made under 38 U.S.C. § 3504(a), which has been recodified as 38 U.S.C. § 6104(a). R. at 137-41. Under 38 C.F.R. § 20.1106 (1994), a survivor’s claim for death benefits is usually to be decided without regard to any prior dispositions of the pertinent issues during the veteran’s lifetime, because the survivor’s claim is new. See, e.g., Landicho v. Brown, 7 Vet.App. 42, 52 (1994) (<HOLDING>); Zevalkink, supra. However, § 20.1106 provides Holdings: 0: holding that veterans disabilitycompensation claims died with him 1: holding that a board decision is required to vest the court of veterans appeals with jurisdiction over a claimants appeal 2: holding that the interpretation of a veterans filings is a factual inquiry 3: recognizing that the veterans benefit system is uniquely proclaimant 4: holding that a claim that is constitutional in name only does not create jurisdiction over an appeal from the veterans court


Input: did not. The fundamental character of the work was the same— harvesting trees. There were no material changes in the way the work was to be performed. Seaboard II, 48 Fed.Cl. at 822. In Axman, the government contracted with Axman to dredge part of San Pablo Bay. 234 U.S. at 39, 34 S.Ct. 736. The contract called for Axman to deposit the spoil in a certain location. Id. Axman mistook the nature of the work, and to reduce his costs requested that the government allow him to dump elsewhere. Id. at 40, 34 S.Ct. 736. The government refused, Axman failed to perform, and the government re-let the contract. Id. at 40-42, 34 S.Ct. 736. In the new contract, however, the government gave the contractor the option to deposit spoil in the location that Axman r t.Cl. 206, 225-26, 1927 WL 2960 (1927) (<HOLDING>). In contrast, where the changes in the resale Holdings: 0: holding that the government could not charge contractor excess cost of relet contract where the governments specifications were impossible to meet government changed the specifications but did not change the price to be paid original contractor refused to perform and new contractor was paid more to meet new specifications 1: holding that the government could not charge contractor excess cost of relet contract where government caused a delay in contract performance in which contractor was to use his own equipment original contractors costs increased and government refused to allow original contractor to perform at cost but allowed new contractor to use government equipment and paid new contractor a different rate 2: holding that where contract between contractor and subcontractor allowed subcontractor to recover if contractor recovered contractor was not barred from bringing suit on behalf of subcontractor 3: holding original contractor not liable for additional cost of relet contract where significant changes were made to the construction specifications 4: holding that the burden to show that reprocurement did not subject the government to excess costs was on the plaintiff contractor


Input: fees exceeded $100,000. 88 F.3d 368, 371-72, 375-76 (6th Cir. 1996). On balance, we conclude that $30,000 is the minimum amount needed to deter similar misconduct. ; 2. Part of the attorney fees were not caused by the violations of rule 1.4-13. Anothér reason the $145,427 sanction is unreasonably excessive is because that sum includes' substantial fees that were not caused by the sanctionable filings. Rule 1.413 provides that a- sanction “may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing.” Iowa R.- Giv. P. 1.413(1) (emphasis added). This codifies a “but for” causation reqdirement, limiting a fee-based' sanction to the fees that would have been avoided but for the improper filings. See Everly, 774 N.W.2d at 495. (<HOLDING>); see also Bodenhamer Bldg. Corp. v. Holdings: 0: holding the district court abused its discretion by imposinga sanction that included fees expended before the sanctionable filings 1: holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint 2: holding that the district court abused its discretion by telling the jury about the right of a prevailing plaintiff to attorney fees under 42 usc  1988 3: holding district court abused its discretion in admitting state court findings of fact 4: holding that the district court abused its discretion by failing to award attorneys fees based on the objective unreasonableness of plaintiffs complaint


Input: crime of violence under the elements clause. As a result, there is no need to reach the constitutionality of Section 924(c)(3)(B)’s residual clause. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (“[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”). The determination of whether a predicate offense is a crime of violence under the elements clause is not made on the facts of the specific allegations against a defendant, but is instead made categorically based on the elements of the offense. See Aguilar v. Att’y Gen. of the United States, 663 F.3d 692, 695 (3d Cir. 2011) (<HOLDING>); United States v. Butler, 496 Fed.Appx. 158, Holdings: 0: holding that sexual assault of a child qualified as crime of violence under 18 usc  16 1: holding that the categorical approach applies to the identical definition of crime of violence in 18 usc  16 2: holding that the categorical approach applies to  924c 3: holding dui causing serious bodily injury is not a crime of violence under 18 usc  16 4: holding that a court must only look to the statutory definition not the underlying circumstances of the crime to determine whether a given offense is by its nature a crime of violence for purposes of 18 usc  16


Input: Chamberlayne, Hand Book on the Law of Evidence 424 (Arthur W. Blakemore and Dewitt C. Moore eds., Matthew Bender & Company) (1919)). In the present case, there were indictments issued on 29 March 2004 and superceding indictments issued on 27 February 2006. Sergeant Wyrick testified that defendant failed to appear for a court date on 6 February 2006. A warrant was issued for defendant’s arrest for the failure to appear. An electronic database confirmed that defendant had been arrested in Ohio, after which the district attorney’s office had defendant extradited back to North Carolina. The fact that defendant left the state and failed to appear for court can be construed as evidence of flight in this case. See State v. Williamson, 122 N.C. App. 229, 232, 468 S.E.2d 840, 843 (1996) (<HOLDING>). As for the argument that the flight was not Holdings: 0: holding that when two underlying offenses are charged in an indictment for capital murder the state need only prove one of the two offenses to support the conviction 1: holding that a defendants statements regarding offenses for which he had not been charged were admissible notwithstanding the attachment of his sixth amendment right to counsel on other charged offenses 2: holding that a reasonable view of this evidence is that defendant by failing to appear for trial attempted to avoid prosecution for the offenses charged 3: holding that trial court erred by failing to compel prosecution to turn over witnesses prior statements relating to their trial testimony 4: holding attorney violated rule 3213 when he neglected clients dissolution of marriage proceeding by failing to make filings and by failing to appear at the scheduled trial


Input: conclude that any of the Reports’ non-g'overnment contributors directly observed the matters that were the subjects of the Reports, or much less had a “duty to report” such observations (as the statute requires). See § 90.803(8), Fla. Stat.; Yisrael, 993 So.2d at 959. The Lee case is dispositive of this issue. There, a party used as evidence an investigative report prepared by a government employee containing “statements of witnesses, as well as [the employee’s] opinions and conclusions.” 698 So.2d at 1197. The Florida Supreme Court found that this report was inadmissible “under , the public record and reports exception to the hearsay rule.” Id. at 1200. After addressing the two categories of the public, records exception, the court explained that “[i]n adopting this ex . 5th DCA 2003) (<HOLDING>). This case also draws, parallels with Holdings: 0: holding that agency reports ofgovernment investigations containing witness interviews were not admissible under public records exception because statements in reports were not based upon personal knowledge of government agent 1: holding corporate officer liable as aider and abettor in filing of false reports even though reports were not authorized or approved of by officers 2: holding that municipal court records were admissible under  official records or public documents  exception 3: holding that expert reports were not required to mention the defendant hospital because reports were based upon the actions of hospital physicians 4: holding that police report containing victim affidavit was not admissible under public records exception


Input: Dale Grayson, one of Mr. Duncan’s co-defendants, provided an interview to the press before Mr. Duncan’s trial. In addition to the ‘presumed prejudice,’ there was also actual prejudice. Twenty-eight of the jury venire members responded affirmatively when asked if they had heard about this case from the media.” (C.R. 218-19.) In its order dismissing the petition, the circuit court found as follows: “Duncan has failed to include any facts in his petition to show that his trial counsel could have presented evidence sufficient to warrant a change of venue. Rather, he has simply [made] bare allegations that there was prejudicial publicity and that this publicity biased the jurors, such that he could not receive a fair trial. See Henderson v. State, 612 So.2d 1256, 1258 (Ala.Crim.App.1992) (<HOLDING>). Further, newspaper articles or widespread Holdings: 0: holding that the presence of four uniformed state troopers in the front row of the gallery was neither inherently nor actually prejudicial to the defendant 1: holding that a defendant who is seeking to excuse a procedurally defaulted claim of structural error need not establish actual prejudice and so the court need not require petitioner to prove that his counsels failure to object to the trial closure was actually prejudicial 2: holding that a trial courts refusal to allow the defendant to attend the jury view was not prejudicial 3: holding that a bare allegation is not sufficient to prove that the defendant was actually prejudiced or that the community was so saturated with prejudicial publicity as to render the trial setting inherently suspect 4: holding that fingerprint evidence coupled as it was with attendant circumstances was sufficient to prove that the defendant was the criminal agent


Input: first-degree burglary under California Penal Code § 459 is categorically a “crime of violence” under 18 U.S.C. § 16(b) because the crime inherently involves a substantial risk of physical force: Any time a burglar enters a dwelling with felonious or larcenous intent there is a risk that in the course of committing the crime he will encounter one of its lawful occupants, and use physical force against that occupant either to accomplish his illegal purpose or to escape apprehension. Id. at 571. Although Becker involved a sentencing enhancement under the Guidelines, at the time the relevant Guidelines section defined “crime of violence” by reference to 18 U.S.C. § 16. Becker, 919 F.2d at 569; see also James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (<HOLDING>); United States v. Park, 649 F.3d 1175, 1178 Holdings: 0: holding that we need not remand to the bia so that it may apply the categorical approach 1: holding that the categorical approach applies to  924c 2: holding that the proper inquiry for the categorical approach is whether the conduct covered by the crime presents the requisite risk of injury in the ordinary case 3: holding that application of the modified categorical approach did not establish a covered conviction where the judgment of conviction did not contain the factual basis for the crime 4: holding that the categorical approach applies to the identical definition of crime of violence in 18 usc  16


Input: 2 . Because the district court adopted the magistrate's findings and recommendation in full, we use 'the term "district court” to refer to both the district court’s and the magistrate's conclusions. 3 . Section 1447(d) provides an exception to this prohibition on appellate review, for “an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title....” The cited section, 28 U.S.C. § 1443, refers to certain civil rights cases, and therefore does not apply in this case. 4 . Because we decide on this ground, we do not reach appellees' argument that we lack subject matter jurisdiction because the parties are not completely diverse. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) Holdings: 0: holding that there is no mandatory sequencing of jurisdictional issues  and we have leeway to choose among threshold grounds for denying audience to a case on the merits  quoting ruhrgas ag v marathon oil co 526 us 574 584 585 119 sct 1563 143 led2d 760 1999 1: holding that steel co does not dictate a sequencing of jurisdictional issues and stating that it is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits 2: recognizing that exhaustion is mandatory and jurisdictional 3: holding that exhaustion is mandatory and jurisdictional 4: holding that appeals from district court orders entered prior to the effective date of northern pipeline construction co v marathon pipe line co 458 us 50 102 sct 2858 73 led2d 598 1982 reviewing interlocutory orders from bankruptcy courts are appealable inter alia under  1291 rather than  1293


Input: held that the scope of any waiver by virtue of disclosure was to be defined by the so-called “fairness doctrine”, which'“aim[s] to prevent prejudice to a party and distortion of the judicial process that may be caused by the privilege-holder’s selective disclosure during litigation of otherwise privileged information.” Id. at 101. Thus, the extent of any waiver by implication turns on the circumstances of the disclosure. Since the disclosure in von Bu-low had occurred in an “extrajudicial” setting—by publication of a book—the court there held that the unfairness to which the waiver doctrine was addressed was not implicated. As a result, the publication waived the privilege only with respect to the particular communications or portions of communications actually disclosed. Id. at 103 (<HOLDING>) Both dictum in von Bulow and a substantial Holdings: 0: holding that matters actually disclosed in public lose their privileged status because the cat is let out of the bag 1: recognizing a public employees first amendment right to address matters of legitimate public concern 2: recognizing that information disclosed in private is not a public disclosure under the fca 3: holding that trial court properly refused to permit disclosure of privileged communications in part because use of the privileged information was not essential to the defense 4: holding that a document which is given to an attorney in the course of seeking legal advice is privileged in the hands of the attorney only if it was privileged in the hands of the client


Input: that he told the same story before the motive or influence came into existence or before the time of the alleged recent fabrication. [In those circumstances], the prior consistent statement is defined as not hearsay . . . and thus is admitted into evidence. Unless a witness’s veracity has affirmatively been placed in issue, the witness’s prior consistent statement is pure hearsay evidence, which cannot be admitted merely to corroborate the witness, or to bolster the witness’s credibility in the eyes of the jury. Woodard, 269 Ga. at 320 (footnotes omitted; emphasis in original). Put another way, “to be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must‘predate the alleged fabrication, in 05 SE2d 649) (2011) (<HOLDING>); Duggan, 285 Ga. at 366 (holding that Holdings: 0: holding testimony that defendant had no response to question during police interview was not impermissible comment on his constitutional right to remain silent where defendant had voluntarily waived his miranda rights 1: holding that the defendants cellmates statement given to the police in a pretrial interview did not predate the cellmates alleged motive to fabricate his testimony to obtain a plea deal on his pending federal drug charges 2: holding that a defendant who has successfully challenged his plea in one ease should be allowed to withdraw his plea in a second case when both cases were part of one negotiated settlement of his charges 3: holding that a defendant who is allowed to withdraw his plea must either withdraw his plea to all charges or to none when his plea to all charges was part of an agreement with the state 4: holding that a codefendants prior statements made at his guilty plea hearing were not admissible to corroborate his trial testimony because the witnesss guilty plea hearing did not predate any improper motive he may have had to testify against the defendant