Input: and circumstances of the offense, the history and characteristics of the defendant, the guideline imprisonment range, and the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1), (4), and (6). In considering the § 3553(a) factors and explaining the reasoning behind its choice of sentence, this Court has held that the district court need not discuss, or state that it has explicitly considered, each factor of § 3553(a). Talley, 431 F.3d at 786. Instead, this Court has held that an explicit acknowledgment that the district court has considered the defendant’s arguments and the § 3553(a) factors will suffice. United States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir.2005); see also Rita v. United States, 551 U.S. -, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007) (<HOLDING>). Here, the district court imposed a Holdings: 0: holding unconstitutional defendants sentence of death based upon the holding in roper supra and remanding for the montgomery circuit court to set aside the defendants death sentence and to sentence him to the only other sentence available  life in the penitentiary without the possibility of parole 1: holding that the defendants sentence was reasonable when the district court considered the parties arguments and provided a reasoned basis for its choice of sentence 2: holding that a sentencing judge who had listened to the defendants arguments in support of a belowguidelines sentence provided sufficient explanation for rejecting those arguments when he found that the defendants circumstances were insufficient to warrant a sentence lower than the guidelines range 3: holding that a sentence imposed for a violation of supervised release will be upheld where 1 the district court considered the applicable policy statements 2 the sentence is within the statutory maximum and 3 the sentence is reasonable 4: holding that the district court which had considered the guidelines but found an upward variant sentence necessary given the defendants previous violations did not abuse its discretion when it imposed a 24month sentence instead of a guidelines range sentence of 3 to 9 months incarceration


Input: or prior contact with authorities, can never be more than speculation; a warning is a cleareut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time. Miranda v. Arizona, 384 U.S. 436, 468-69, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966) (emphasis added) (footnote omitted). We detect no indication in this language that the Court intended to distinguish between individuals based on occupation or training in determining when Miranda warnings are required. Indeed, subsequent cases have so held. See, e.g., Desire v. Attorney General of California, 969 F.2d 802, 805 (9th Cir.1992) (<HOLDING>); United States v. Longbehn, 850 F.2d 450, 453 Holdings: 0: holding that although miranda warnings were not given to defendant police officers they had no cause of action under 42 usc  1983 because they were never prosecuted 1: holding that the warnings in their totality satisfied miranda 2: holding that although defendants voluntarily given initial statement was inadmissible because of miranda violation subsequent statement made after careful miranda warnings were given and waiver was obtained was admissible 3: holding that although defendant was a deputy sheriff miranda warnings were required irrespective of defendants knowledge of his fifth amendment rights 4: holding that because miranda warnings make defendant aware of right to counsel and of consequences of waiving sixth amendment rights defendants waiver of right to counsel after receiving such warnings is valid


Input: jurisdiction may close the case for failure to respond after receipt of the [SOC], but questions as to timeliness or adequacy of response shall be determined by the Board of Veterans’ Appeals.” Id. The Secretary, pursuant to 38 U.S.C. § 7105, promulgated regulations at 38 C.F.R. §§ 20.300, 20.302(b), which govern the filing of Substantive Appeals. These provisions mirror those set forth in the statute. Whether the statutory deadline for filing a Substantive Appeal is subject to equitable tolling is a question of law that the Court reviews de novo. 38 U.S.C. § 7261(a)(1); see Smith v. Gober, 14 Vet.App. 227, 230 (2000) (stating that the Court reviews questions of law de novo without any deference to the Board’s conclusions); cf. Bailey v. Principi 351 F.3d 1381, 1384 (Fed.Cir.2003) (<HOLDING>). Based on the following, we conclude that Holdings: 0: holding that equitable estoppel and equitable tolling cannot apply to extend the 120day noa filing period set forth in 38 usc  7266a 1: holding statute of limitations period defined in 28 usc  2244d is subject to equitable tolling 2: holding that the 120day filing period is subject to equitable tolling and addressing circumstances warranting equitable tolling 3: holding that issue of whether the 120day judicialappeal period prescribed by 38 usc  7266a for seeking judicial review of a board decision is subject to equitable tolling is a legal question 4: holding that the 120day judicial appeal period is not subject to waiver or forfeiture by the secretary


Input: find the conditions of [his] employment altered for the worse.” Feingold, 366 F.3d at 150 (internal quotation marks omitted) (emphasis in the original). Leifer presents evidence of six interactions with his supervisors over a three-year period which implicate his religion. Viewing Leif-er’s evidence in the light most favorable to him, a reasonable jury could find the interactions to be sufficiently hostile to have altered his employment conditions for the worse. To support their argument to the contrary, defendants cite two cases in which this Court affirmed a district court’s award of summary judgment on the grounds that the harassment was not frequent or severe enough to constitute sufficient proof of a hostile work environment. See Alfano v. Costello, 294 F.3d 365, 380 (2d Cir.2002) (<HOLDING>); Shabat v. Blue Cross Blue Shield of Rochester Holdings: 0: holding that five alleged incidents in four years were too few too separate in time and too mild  to create an abusive working environment 1: holding that the settlement was not fair adequate or reasonable since it was agreed upon too quickly with too little development on the merits 2: holding sanctions order was too general to support award 3: holding that collateral crime that occurred twelve years prior to charged offense not too remote in time 4: holding that a dozen racial incidents over a two and one half year period were too few to constitute a custom with the force of law


Input: him from practicing his religion in other ways. See docket entries # 77 and # 78 (emphasis added). Under Gladson and Murphy, Plaintiff is not required to make such an allegation in order to state a valid free exercise claim. See Gladson, 551 F.3d at 831-32; Murphy, 372 F.3d at 988. Instead, as previously explained, he is only required to allege that Defendants prevented him from practicing a central tenet of his faith, which in this case, appears to be regularly reading his Bible. Furthermore, the Eighth Circuit has held, in several cases, that prisoners state viable free exercise claims when they allege that prison officials have limited their access to religious reading materials. See Roddy v. Banks, Case No. OS-3735, 2005 WL 433404 (8th Cir. Feb. 25, 2005) (unpublished opinion) (<HOLDING>); Williams v. Brimeyer, 116 F.3d 351, 354-55 Holdings: 0: holding a muslim prisoners free exercise claim failed because even though the prison did not provide him with halal meat he could comply with his religious requirements by simply eating a vegetarian meal and therefore the disputed policy did not force the prisoner to violate his religion 1: holding that a prisoner stated a valid equal protection claim when he alleged he was denied a work assignment because of his sexual orientation 2: recognizing a religious institutions right to free exercise of religion 3: holding that a prisoner stated a valid free exercise of religion claim where he alleged that prison officials refused to allow him to receive certain religious books 4: holding that religious exercise is any exercise of religion whether or not compelled by or central to a system of religious belief and that the use building or conversion of real property for the purpose of religious exercise shall be considered  religious exercise


Input: requires Educators to bargain directly with Savage. This statutory provision, together with the structurally inclusive nature of workers’ compensation insurance, creates a relationship of trust and reliance between injured employees and workers’ compensation insurers. I would hold, as have several other courts, that this relationship places a tort-based duty on insurers to deal in good faith with injured employees. See Savio, 706 P.2d at 1272-74 (nature of workers’ compensation insurance, combined with section of workers’ compensation statute requiring that insurance policies contain clause making insurer primarily liable to employee, creates tort duty on part of insurer to deal in good faith with employee); see also Case v. Toshiba Am. Info. Sys., Inc., 7 F.3d 771, 773 (8th Cir.1993) (<HOLDING>); Hollman v. Liberty Mut. Ins. Co., 712 F.2d Holdings: 0: recognizing workers compensation insurance carrier owes employee duty of good faith and fair dealing in processing compensation claims 1: holding that as 2330012 prohibits setting aside workers compensation c  r based on mistake 2: holding that the duty of good faith and fair dealing is a contractual duty 3: holding that claims for the breach of the duty of good faith and fair dealing against workers compensation insurance carrier did not  arise under the state workers compensation statutes but are at most related to those statutes and thus do not come within the ambit of the nonremovability provision of  1445c good faith and fair dealing claims were created by texas common law not by the compensation statute 4: recognizing duty to deal in good faith in workers compensation setting


Input: show that (1) trial counsel’s representation was so deficient that it fell below the objective standard of professional norms and (2) but for counsel’s error, th ceedings would have been different if counsel would have objected to the jury charge and the trial court had given the reasonable-doubt instruction for extraneous offenses. exual assault of a child case. Since Dowthitt, two unpublished appellate court opinions regarding sexual assault of a child relied on Dowthitt to admit videotaped testimony as prior consistent statements under rule 801(e)(1)(B), when the child-victim testified at trial and the videotaped statement was offered to rebut an express or implied charge of recent fabrication 1569537 at *1 (Tex.App.-Dallas Nov.20, 2002, no pet.) (not designated for publication) (<HOLDING>). 8 . During the closing argument at Holdings: 0: holding that error from the erroneous admission of evidence was harmless in light of the overwhelming evidence of the defendants guilt 1: holding the error harmless in light of the overwhelming evidence of guilt 2: holding improperly admitted evidence was harmless error given the overwhelming evidence of guilt 3: holding that trial courts error in failing to sua sponte give instruction was harmless because state did not emphasize this evidence in closing argument and evidence of appellants guilt was otherwise overwhelming 4: holding that in admitting evidence the failure of the trial court to give a limiting instruction sua sponte is not reversible error


Input: to raise the defense in a timely manner can result in a waiver); United States v. Karlin, 785 F.2d 90, 92 (3d Cir. 1986) (aligning itself with the Second, Fourth, Seventh, Ninth and D.C. Circuits in holding that “the running of the statute of limitations does not defeat jurisdiction and that the failure to assert the defense will constitute a waiver,” and noting that the view expressed by the Tenth Circuit in Waters is contrary to that articulated by a majority of the circuit courts of appeals); United States v. Meeker, 701 F.2d 685, 687 (7th Cir. 1983); United States v. Walsh, 700 F.2d 846, 855 (2d Cir. 1983); United States v. Williams, 684 F.2d 296, 299 (4th Cir. 1982); United States v. Akmakjian, 647 F.2d 12 (9th Cir. 1981); United States v. Wild, 551 F.2d 418, 424 (D.C. Cir. 1977) (<HOLDING>). The Sixth Circuit was, for some time, the Holdings: 0: holding that the statute of limitations in a criminal case is a nonjurisdictional affirmative defense that is waived if not raised in the trial court 1: holding that the statute of limitations is nonjurisdictional and defendant expressly waived it observing in dicta that a statute of limitations defense should be raised no later than the trial 2: recognizing such limitations in dicta 3: holding that the statute of limitations defense does not deprive court of subject matter jurisdiction to the extent the statute of limitations may be considered in any sense a jurisdictional impediment it is one which can be waived 4: holding that trial court erred by granting a directed verdict on statute of limitations defense and remanding for a new trial on the statute of limitations only


Input: for breach of implied covenant of good faith and fair dealing by Amtrak because it has failed to plead a valid contract. While Virginia law recognizes a contractual duty of good faith and fair dealing, Va. Vermiculite, Ltd. v. W.R. Grace & Company-Connecticut, 156 F.3d 535, 542 (4th Cir.1998), a breach of that duty only creates a claim for breach of contract. Joyce v. Lincoln Nat’l Life Ins. Co., 845 F.Supp. 353, 355 (E.D.Va.1993) (stating that there is no independent cause of action for breach of implied covenant). Where, as here, there is no allegation of a valid contract betwee ence with prospective business advantage fails because Plaintiff has not alleged the existence of a valid business expectancy. Krantz v. Air Line Pilots Assoc., 245 Va. 202, 205-06, 427 S.E.2d 326 (1993) (<HOLDING>). Plaintiff admits in its Amended Complaint Holdings: 0: holding that with respect to tortious interference recognized standards of business ethics and business customs and practices are pertinent 1: recognizing the tort of interference with prospective contractual relations as a subspecies of the broader tort of interference with prospective economic advantage 2: holding that the first element in a prima facie case of tortious interference with prospective business advantage is the existence of business expectancy 3: holding that the first element in a prima facie case of tortious interference with contract is the existence of a valid contractual relationship 4: recognizing action for tortious interference with prospective advantage


Input: 496, 745 P.2d 717, 721 (Ct.App. 1987). In this case, Plaintiff filed a pretrial motion to exclude the assailant from being considered a concurrent tortfeasor. The motion cited Lujan v. Healthsouth Rehabilitation Gorp., 120 N.M. 422, 902 P.2d 1025 (1995), the same authority Plaintiff relies on in this appeal. Plaintiff thus fairly invoked a ruling of the trial court on this issue and preserved it for appeal. See id. (explaining liabilities of concurrent and successive tortfeasors). {36} We are unpersuaded by Defendants’ argument that Plaintiff failed to preserve this issue by failing to object to the trial court’s jury instructions on comparative negligence. In so contending, Defendants rely on Pittard v. Four Seasons Motor Inn, Inc., 101 N.M. 723, 729, 688 P.2d 333, 339 (Ct.App.1984) (<HOLDING>), and Romero v. Mervyn’s, 109 N.M. 249, 253 n. Holdings: 0: holding that a party waived an allegation that an instruction was erroneous where the party failed to object at trial to the instruction on those grounds 1: holding that party waived an objection to choice of law 2: holding defendant waived complaint 3: holding that party waived public policy challenge by failing to raise it during arbitration 4: holding that party waived complaint regarding instruction where it did not raise specific objection


Input: court’s dismissal for mootness de novo”). [¶ 10] A trial court properly dismisses a case for mootness if the case “has lost its character as edication). [¶ 15] Common-law dedication requires, (1) an intention to dedicate and, (2) public acceptance of the dedication. Cole, 17 N.D. 409, 117 N.W. at 358. Intent to dedicate, “is to be ascertained from the acts of the owner, and not from the purpose hidden in his mind.... Dedications have been established in every conceivable way by which the intention of the party can be manifested.” Ramstad v. Carr, 31 N.D. 504, 154 N.W. 195, 199 (N.D.1915) (citation omitted); Cole, at 358 (stating, “the intention to dedicate be properly and clearly manifested”); Security Federal Savings & Loan Ass’n v. C & C Investments, 448 N.W.2d 83, 87 (Minn.App.1989) (<HOLDING>). [¶ 16] A common-law dedication must be proven Holdings: 0: holding that intent need not be express and in fact need not actually exist in the owners mind but may be implied from acts and conduct of the owner which are unequivocally and convincingly indicative of a dedication and upon which the public has a right to and does rely 1: holding the effect of a commonlaw dedication is to create only such an estate or right in the public as is necessary to enable it to enjoy the uses for which the dedication is made and to reserve the fee to the dedicator 2: holding that predicate acts need not be in furtherance of the enterprise 3: holding because dedication is a theory premised on estoppel  the owner can be precluded from resuming rights over the property if the public acts upon the owners manifestations 4: holding deceptive acts which were not disclosed to the investing public are too remote to satisfy the requirement of reliance because a plaintiff cannot rely on acts of which it is unaware


Input: States v. Bustos-Useche, 273 F.3d 622, 626 (5th Cir.2001); United States v. Medina, 90 F.3d 459, 464 (11th Cir.1996). 17 . Although vessel status is a substantive issue in that it relates to “the reach and application” of the statute, González, 311 F.3d at 443, it is not an element of the offense. See 46 U.S.C. § 70504(a); United States v. Vilches-Navarrete, 523 F.3d 1, 20 (1st Cir.2008). 18 . Other judge-determined issues are subject to higher and lower standards of proof. See, e.g., Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct 1496, 99 L.Ed.2d 771 (1988) (noting that a court resolves a question of relevancy conditioned on fact by deciding “whether the jury could reasonably find the conditional fact”); United States v. Ruiz-Gaxiola, 623 F.3d 684, 691-93 (9th Cir.2010) (<HOLDING>). 19 . The MDLEA provides that "[a] failure to Holdings: 0: holding that facts justifying forced administration of antipsychotic medication must be established by clear and convincing evidence 1: holding that despite the lack of a statutory requirement that severe child abuse be shown by clear and convincing evidence due to the consequences of such a finding the clear and convincing standard must be applied 2: holding that in reviewing a defendants motion for judgment of acquittal based on insanity which the defendant must prove by clear and convincing evidence the court must determine whether no reasonable jury could have failed to find that the defendants criminal insanity at the time of the offense was established by clear and convincing evidence 3: holding that fraud on the court must be supported by clear unequivocal and convincing evidence 4: holding that an award for punitive damages must be supported by clear unequivocal and convincing evidence


Input: none of the worldly experiences that this defendant would have, of course Melvin Boone would respect a man like this. [A476J Hakim argues that these references have no relation to the crime with which he was being charged: bank robbery. Boone was brought to the stand to identify Hakim as the second robber in the surveillance photograph. As such, Hakim maintains that the prosecution had only to establish that Boone was able to identify Hakim; testimony that he had known Hakim for 10 years would have been sufficient. Hakim therefore contends that the government elicited the testimony about his faith in an attempt to peg him as a potential terrorist in the minds of the jurors and that such use of race or ethnicity is improper. See, e.g., Moore v. Morton, 255 F.3d 95, 113 (3d Cir.2001)(<HOLDING>). As noted above, because Hakim’s lawyer did Holdings: 0: holding that summary judg ment was not appropriate where the agency limited its search to one record system without making clear that the single system was the only possible place that responsive records are likely to be located and stating that at the very least the agency was required to explain in its affidavit that no other record system was likely to produce responsive documents 1: holding the evidence supported the inference that the victim was not released in a safe place where the victim overpowered the defendants and effected his own escape 2: holding relevance of evidence is established by any showing however slight that the evidence makes it more or less likely that the defendant committed the crime in question 3: holding that the victims statement was inadmissible when made two to three hours after victim was allegedly raped because the victims testimony supported the conclusion that her statement was made with conscious reflection 4: holding that where the prosecutor suggested that the fact that the black defendant was married to a white woman allegedly showing his preference for white women made it more likely he had raped the white victim racially or ethnically based prosecutorial arguments have no place in our system of justice


Input: pet.). The Bisby Court held that a defendant’s attempt to introduce evidence at the punishment phase of the trial that he was not the person who shot complainant was irrelevant because it concerned his guilt or innocence, not the proper punishment. Bisby, 907 S.W.2d at 959-60. Likewise, the Garcia Court upheld the trial court’s exclusion of the defendant’s attempt to introduce impeachment evidence that the State’s witnesses had consumed more alcohol at the time of the incident than they had admitted to because “[s]uch impeachment evidence might be collateral testimony regarding appellant’s guilt, but would be of no import in determining punishment so as to require reversal.” Garcia, 704 S.W.2d at 499; see also Oregon v. Guzek, - U.S. -, -, 126 S.Ct. 1226, 1228, 163 L.Ed.2d 1112 (2006) (<HOLDING>). We hold that, in a case like this where there Holdings: 0: holding that trial court abused its discretion to admit at the punishment phase of the defendants capital murder trial a photograph of the murder victim and her unborn child lying in a casket 1: holding that there is no eighth of fourteenth amendment rights to present alibi evidence at punishment phase of capital murder trial 2: holding that the due process clause of the fourteenth amendment incorporates the eighth amendments guarantee against cruel and unusual punishment 3: holding defendant waived right to challenge incourt identification when he admitted guilt at punishment phase of trial 4: holding that because pretrial detainees fourteenth amendment rights are comparable to prisoners eighth amendment rights the same standards apply


Input: requirements”, (id. at ¶¶ 129 & 130), as well as a statement in the First Quarter 10-Q that “[w]e continuously monitor our liquidity requirements and believe that our facilities and access to the capital markets provide sufficient liquidity to meet our business requirements.” (Id. at ¶ 145.) Further alleged are statements in the registration statement and prospectus that: (1) the “risks [of counterparty relationships] are enhanced during periods of commodity price fluctuations. Defaults by suppliers and other counterparties may adversely affect Constellation Energy’s financial results”; and (2) “[a] downgrade in Constellation Energy’s credit ratings could negatively affect its ability to s in original); Hillson Partners Ltd. P’ship v. Adage, Inc., 42 F.3d 204, 212 (4th Cir.1994) (<HOLDING>) (internal quotation marks omitted); In re Holdings: 0: holding that mere statements of opinion or prediction such as future profits or how well a business will do in a particular market may not be a basis for a fraud or misrepresentation action because predictions are not past or present material facts 1: holding that statements that 1992 will produce excellent results for adage and adage is on target toward achieving the most profitable year in its history were predictions as to future events not statements as to present facts let alone guarantees and were therefore immaterial as a matter of law 2: holding that in texas future predictions and opinions especially those regarding the future profitability of a business cannot as a matter of law form a basis for fraud 3: holding that vague on schedule and on track statements were immaterial misrepresentations 4: holding that future predictions and opinions especially those regarding future profitability of business cannot form basis for fraud as matter of law


Input: that [i]t is common knowledge that unlawful street drugs do not come with warranties of purity or quality associated with lawfully acquired drugs such as alcohol. Thus, unlike alcohol, unlawful street drugs are frequently not the substance they purport to be or are contaminated with other substances not apparent to the naked eye. 175 Cal.App.3d 785, 221 Cal.Rptr. 631, 637 (1985); see Minn.Stat. § 152.01, subd. 9a (2006) (defining a controlled-substanee “mixture” as “a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity”). Appellant cites several cases from other state and federal jurisdictions, arguing the availability of such a defense. See, e.g., People v. Brumfield, 72 Ill.App.3d 107, 28 Ill.Dec. 422, 390 N.E.2d 589, 592-93 (1979) (<HOLDING>); but cf. People v. Hari, 218 Ill.2d 275, 300 Holdings: 0: holding that a defendants insanity due to voluntary intoxication is not a defense 1: holding that defendants constitutional right to travel was not abridged when he was ordered not to make contact with the victim he attempted to rape 2: holding that the defendant had abandoned any possessory or privacy interest in bags found in the truck he was driving where he stated that he did not own the bags did not know who did and did not know what was in them 3: holding district court erroneously preclud ed evidence of involuntary intoxication as a defense to charge of rape based on defendants offer of proof that he smoked marijuana which he did not know contained angel dust and voluntarily drank alcohol the combined effect of which led to the defendants involuntary acts 4: holding that defense counsels failure to present voluntary intoxication as a defense in a capitalmurder prosecution was not beyond the range of reasonable professional judgment and thus did not amount to ineffective assistance in view of inconsistency of intoxication defense with deliberateness of the defendants actions during the shootings


Input: W. Reginald Rose, Jr., and Laura J. Rose appeal pro se from the district court’s order dismissing their civil rights complaint for failing to comply with Rule 8 of the Federal Rules of Civil Procedure. We dismiss the appeal for lack of jurisdiction. The district court dismissed the Roses’ complaint without prejudice and granted leave to amend. Rather than filing an amended complaint or obtaining a final order of dismissal from the district court, the Roses filed a notice of appeal. We therefore lack jurisdiction. See WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136-37 (9th Cir.1997) (en banc) (<HOLDING>). DISMISSED. ** This disposition is not Holdings: 0: holding that denial of a postconviction motion without prejudice and with leave to amend is not a final appealable order 1: holding that dismissal with leave to amend is not a final order 2: holding that a district courts dismissal that expressly grants leave to amend is not final and that a final judgment must be obtained before such a case becomes appealable 3: holding that a district court judgment is not a final judgment appealable by the defendant unless it includes the final adjudication and the final sentence 4: holding that when a district court expressly grants leave to amend it is plain that the order is not final


Input: they pay for the kits. In evaluating these arguments, two things must be kept in mind. First, while in-person telemarketing calls may be harassing to the consumer, they do not violate the TCPA. It is only when the calls are “robo-calls” or are made to persons on the do-not-call list that the calls violate the Act. Accordingly, assisting a party in setting up telemarketing centers or providing scripts for in-person calls is not evidence of agency. Second, “a distributor of goods for resale is normally not treated as an agent of the manufacturer. Restatement of the Law of Agency, 2d § 14J (1957) (‘One who receives goods from another for resale to a third person is not thereby the other’s agent in the transaction.’); Stansifer v. Chrysler Motors Corp., 487 F.2d 59, 64-65 (9th Cir. 1973) (<HOLDING>).” Asante Techs., Inc. v. PMC-Sierra, Inc., 164 Holdings: 0: holding that plea agreement with drug enforcement agency agent not enforceable when agent was not authorized by united states attorney to enter agreement 1: holding that the employer was not the insurers agent 2: holding that both agent and principal will be liable when the agent acts within the scope of his employment but for his own purposes 3: holding that nonexclusive distributor was not agent of manufacturer where distributorship agreement expressly stated distributor is not an agent 4: holding that a spouse is not necessarily an agent of the debtor


Input: was decided only under MCR 2.116(0(10). See Cuddington v United Health Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519 (2012) (concluding that if a party moved for summary disposition under multiple subrules and the trial court ruled on the motion without specifying the subrule under which it decided an issue, and the court considered documentary evidence beyond the pleadings, this Court reviews the decision as if it were based on MCR 2.116(0(10)). 3 Plaintiff’s hostile work environment claim is based on alleged discrimination based on sex, not on allegations of sexual harassment. In this case, we assume that a hostile environment claim may be maintained on the basis of conduct involving plaintiff’s gender. See Quinto v Cross & Peters Co, 451 Mich 358, 368 & n 6; 547 NW2d 314 (1996) (<HOLDING>). RIORDAN, J. (concurring in part and Holdings: 0: holding that denial of vsf benefits to disabled retirees does not violate the ada the rehabilitation act 29 usc  791 et seq or the age discrimination in employment act of 1967 29 usc  621 et seq and that plaintiffs due process and first amendment claims were frivolous 1: holding that discharged black employe had right of action under title vii of civil rights act of 1964 42 usc  2000e et seq to assert discrimination claim notwithstanding arbitrators finding pursuant to collective bargaining agreement that employe was discharged for cause 2: recognizing that federal courts have held that harassing behavior based on ethnicity and age is violative of title vii 42 usc 2000e et seq and assuming without deciding   that a hostile environment claim may be maintained on conduct involving a plaintiffs gender age or national origin 3: holding that the same standard applies to claims of discrimination based upon gender and age 4: recognizing that a claim of hostile environment sex discrimination is actionable under title vii


Input: be improper and (2) prejudicially affect the defendant’s substantial rights. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir.2006). “A defendant’s substantial rights are prejudicially affected when a reasonable probability arises that, but for the remarks, the outcome of the trial would have been different.” Id. (citation omitted). In recognizing the government’s burden of proving guilt beyond a reasonable doubt, we have recognized that a prosecutor’s comment may be so prejudicial as to shift the burden of proof. United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992). However, the prejudice from a prosecutor’s comments that may result in burden-shifting can be cured by a court’s instructions regarding the burden of proof. Id. at 1087; see also Hernandez, 145 F.3d at 1439 (<HOLDING>). Here, the prosecutor’s statements did not Holdings: 0: holding that the burden is on the plaintiff 1: holding that the prosecutors comment regarding the defendants failure to call a potential witness did not shift the burden of proof because it did not implicate the defendants fifth amendment right not to testify 2: holding that any potential prejudice regarding burdenshifting is diminished by the prosecutors statement that the burden of proof is the governments and the courts explicit instructions regarding the burden of proof in the jury charge 3: holding that the burden of proof is on the claimant 4: recognizing that the burden of proof is an essential element of the claim itself and that one who asserts a claim has the burden of proof that normally comes with it


Input: support his claim with respect to Caine, defendant attaches Caine’s original and amended motions to suppress. These motions allege that Caine was not informed of his Miranda rights, that the police officers promised him leniency, that the police officers struck him in the head and kicked him in the stomach, and that he was intoxi cated when he gave his statement. The motions, however, do not identify any of the officers involved or describe with any particularity misconduct similar to what defendant suffered. Without some evidence indicating that the same officers or supervisors were involved or that the same type of misconduct was involved, we have no basis upon which to conclude that this evidence was relevant to defendant’s claims. See People v. Hobley, 159 Ill. 2d 272, 312 (1994) (<HOLDING>). Rowland’s affidavit alleges that the officers Holdings: 0: holding that because the allegations purportedly suppressed by the government were not material an evidentiary hearing further exploring the  allegations themselves and the governments knowledge of the allegations is unnecessary 1: holding that similar allegations were insufficient to state a due process claim 2: holding that plaintiffs allegations of abuse did not amount to the allegations of torture required by  1605a7 to survive a motion to dismiss 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 evidence of other allegations of torture was inadmissible in part because it was not similar to the allegations made by defendant


Input: agents in violation of his Sixth Amendment right to counsel. Finding no error, we affirm. The Sixth Amendment right to counsel is violated when the Government “deliberately elicit[s]” incriminating statements from a criminal defendant after he has been indicted and outside the presence of counsel. Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); see United States v. Love, 134 F.3d 595, 604 (4th Cir.1998). However, this right is “not violated whenever — by luck or happenstance — the [Government] obtains incriminating statements from the accused after the right to counsel has attached.” Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); see also Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (<HOLDING>). Here, the district court found no evidence Holdings: 0: holding that merely because questioning was designed to produce incriminating responses took place at the police station and occurred only after the defendant was identified as a suspect did not trigger miranda 1: recognizing routine booking question exception observing that the underlying rationale for the exception is that routine booking questions do not constitute interrogation because they do not normally elicit incriminating responses and holding that where questions regarding normally routine biographical information are designed to elicit incriminating information the questioning constitutes interrogation subject to the strictures of miranda   citations omitted 2: holding that an interrogation occurs when there is express questioning or any words or actions on the part of the police other than those normally attendant to arrest and custody that the police should know are reasonably likely to elicit an incriminating response from the suspect 3: holding that a comment made by one police officer to another in the presence of the accused expressing concern that handicapped children might come across a shotgun is not a statement designed to elicit an incriminating response 4: holding that defendant must demonstrate that the police and their informant took some action beyond merely listening that was designed deliberately to elicit incriminating remarks


Input: L.Ed.2d 471 (1977) (“The bar of the Eleventh Amendment to suit in Federal courts extends to States and state officials in appropriate circumstances ... but does not extend to counties and similar municipal corporations.”). The only Eleventh Amendment question here is whether the Holmes County Court, which is responsible for the policies of its Clerk’s Office and Judge Irving, should be considered an “arm of the state” and thus vested with sovereign immunity. We do not write on a blank slate. Several years ago, we held that an Ohio court of common pleas was an arm of the state for Eleventh Amendment purposes. See Mumford v. Basinski, 105 F.3d 264, 268 (6th Cir.), cert. denied, 522 U.S. 914, 118 S.Ct. 298, 139 L.Ed.2d 229 (1997); see also Foster v. Walsh, 864 F.2d 416, 418 (6th Cir.1988) (<HOLDING>). This case is factually very similar to Holdings: 0: holding that because a county is not a person for purposes of a section 1983 claim it cannot be sued where the remedy sought is monetary damages 1: holding that a state is not a person within the meaning of  1983 2: holding that a state is not a person under 42 usc  1983 3: holding state university is not a person under  1983 4: holding that an ohio municipal court could not be sued under  1983 because it was not a person as  1983 uses that term


Input: clause is an essential constitutional restriction on the power of the legislature to enact laws. To disallow a citizen legal redress to contest a law on the grounds that it violates the single-subject clause is a clear threat to the essential nature of the operation of the legislative branch of state government as guaranteed by the constitution. The joinder of two or more unconnected matters in a bill is no mere irregularity. The single-subject clause goes to the heart of the legislative process mandated by the people of the State of Iowa when they adopted our constitution. Therefore, I would apply the doctrine of great public importance, waive the requirement of standing, and allow Godfrey’s challenge to proceed. See Sloan v. Wilkins, 362 S.C. 430, 608 S.E.2d 579, 583 (2005) (<HOLDING>). Consequently, I would reverse the judgment of Holdings: 0: holding the doctrine of great public importance allows a citizen to challenge a bill under the singlesubject clause of the south carolina constitution 1: holding that under south carolina law slander is actionable per se where plaintiff is alleged to have committed adultery 2: holding the exclusion did not violate the equal protection clause of the wyoming constitution or the fourteenth amendment to the united states constitution 3: recognizing south carolina as a jurisdiction where service on statutory agent is exclusive 4: recognizing south carolina as the governing law and finding no south carolina cases directly on point the court referred to applicable law from other jurisdictions


Input: creating anger or resentment and a cross burning done with the [constitutionally proscribable] purpose of threatening or intimidating a victim”), 374 (Scalia, J., concurring in part and dissenting in part) (agreeing that the First Amendment prohibits the conviction of a person for cross burning without the intent to intimidate, but concluding that the number of such convictions likely to occur under the Virginia statute was too small to render the statute facially overbroad). 20 Pet. for Review, State v. Schaler, No. 81864-9, at 13 (Wash. Aug. 19, 2008) (conceding that “[t]he true threat test is determined under an objective standard that focuses on the speaker” (citing Kilburn, 151 Wn.2d at 44)). 21 Majority at 900. 22 United States v. Heineman, 767 F.3d 970, 976-82 (10th Cir. 2014) (<HOLDING>); United States v. Bagdasarian, 652 F.3d 1113, Holdings: 0: holding after long discussion of the various opinions in black that that case established that a defendant can be constitutionally convicted of making a true threat only if the defendant intended the recipient of the threat to feel threatened 1: holding that the district courts finding that an allegedly coercive threat did not specifically motivate the defendants confession where 1 there was no evidence that the threat was repeated at the police station 2 defendant offered no admissible evidence that the threat was the crucial factor motivating his confession and 3 he confessed immediately after the officer threatened to administer a gun residue test as opposed to confessing immediately after the allegedly coercive threat was made thus the gunresidue test was just as plausible a motivating factor for the confession as was the threat 2: holding that an enhancement for an express threat of death may not be applied to the sentence for robbery when the threat is related to the use of the firearm and the defendant has a  924c sentence for the same firearm 3: holding that the statement i have a gun is a threat of death 4: holding that threat occurring 36 days before possession of firearm not present threat


Input: FDC Corporation was not final, but merely pending. Appellee argues that NMSA 1978, Section 53-16-11 (Repl.Pamp.1983), the statute addressing a corporation’s distribution of assets upon dissolution, can be read to require payment by the corporation of all final debts before making any provisions for any pending claims. However, nothing in that statute or in the New Mexico Business Corporation Act suggests that the legislature intended that final claims have priority over contingent claims. At the time FDC’s assets were distributed, Smith had a contingent claim with no precise amount owing. Nonetheless, it is clear that appellee Cox had knowledge of the lawsuit and knew that the corporation would have no assets to pay any ensuing judgment amount. See Robar Dev. Corp., 408 A.2d at 853 (<HOLDING>). Smith’s pending lawsuit did constitute a Holdings: 0: holding that claims of corporation vest in corporation 1: holding that when one corporation transfers its assets to another the receiving corporation is not responsible for debts of transferor unless it agrees to assume these debts 2: holding that a corporation could not dissolve and distribute its assets without providing for contingent claims 3: holding that disaffiliated church had de facto dissolved when last vote of its full membership was to dissolve and to transfer assets to mother church 4: holding that a lawsuit against a corporation that purchased assets from a bankrupt is not a claim against the debtor


Input: matter illustrates the impossibility of an adequate appellate review. During voir dire, the State inquired whether any of the prospective jurors or members of their families had experienced drug addiction problems, and it appears from the transcript that several answered affirmatively. Unfortunately, they are not identified by name or juror number. This is critical because Mr. McKenzie alleged that the State improperly exercised a peremptory challenge on the sole African-American member of the jury panel. The gist of Mr. McKenzie’s argument was that the reason advanced by the State to sustain its challenge, although appearing race neutral, was pretextual. See Melbourne v. State, 679 So.2d 759 (Fla.1996). The Assistant State Attorney expressed concern that the juror seemed d 1994) (<HOLDING>). As did the Florida Supreme Court in Delap v. Holdings: 0: holding that defendants have a right to be present at voir dire 1: holding that when the purpose of the request is to compare the testimony of jurors but no such comparison was made at the trial level a court need not provide a free voir dire transcript 2: holding that trial minutes were not sufficient substitute for transcript of voir dire and could not afford meaningful review when both sides exercised peremptory challenges 3: holding that the selection of the jury constitutes part of a public trial 4: holding that missing portions of transcript of voir dire did not entitle the defendant to a new trial for murder because the alleged errors in jury selection were harmless as a matter of law


Input: criticizes Winchester for dispensing “vague instructions [that] provided little guidance to other courts or future litigants on how to determine from ‘the circumstances’ whether a claimant satisfies the situs test.” Op. at 390. However, in the thirty-three years since it was passed, Winchester has not proven to be overly vague or unworkable. Indeed, the standard is clear enough that since 1980, there have been only nine cases in this circuit where the meaning of “adjoining area” was contested. Moreover, few of these cases challenged the application of Winchester to land-based operations. Coastal Prod. Servs., Inc. v. Hudson, 555 F.3d 426 (5th Cir.2009) (deciding that fixed loading platform was a maritime situs); Thibodeaux v. Grasso Prod. Mgmt. Inc., 370 F.3d 486 (5th Cir.2004) (<HOLDING>); Boomtown Belle Casino v. Bazor, 313 F.3d 300 Holdings: 0: holding employer satisfied its burden of production 1: holding that injury in a parking lot did not occur on a covered situs 2: holding that a fixed oil production platform was not a covered situs 3: holding injury at premises adjacent to the houston ship channel occurred on a covered situs 4: holding that floating casino was not a covered situs


Input: also cite In re Jartran, Inc., 886 F.2d 859 (7th Cir.1989), but that case is distinguishable as it deals with administrative expense priority, not post-confirmation assets or claims. We find, moreover, that the trustee is the proper party to bring this action. The Donaldsons admit that the creditors would have standing to bring this claim. Br. at 22. The trustee, as the appointed representative of the creditors, is empowered by the bankruptcy court to represent their interests. “Property of the bankrupt remains in custodia legis in the bankruptcy court during the period ... after the discharge of the trustee ... remaining] dormant, in the estate, until the bankruptcy court again appoints a trustee as enforcing guardian.” Stein v. United Artists Corp., 691 F.2d 885, 893 (9th Cir.1982) (<HOLDING>). D. Res Judicata The Donaldsons contend that Holdings: 0: holding that a debtor must make a specific and unequivocal reservation of claims that would effectively put its creditors on notice of any claim it wishes to pursue after confirmation 1: holding that controlling shareholder of postconfirmation debtor could not pursue unlisted preconfirmation claim on behalf of creditors 2: holding that the creditors committee could not sue third party aidersandabettors because the participation of the sole shareholder and decisionmaker of the debtor rendered the debtor a participant 3: holding confirmation vested property in the debtor and therefore properly of the estate was not liable for postconfirmation taxes incurred by debtor 4: holding that sole shareholder could recover on behalf of company but not in individual capacity for former shareholder and officers misappropriation of corporate assets


Input: that will reasonably assure the appearance of a defendant as required and the safety of any other person in the community are set forth in 18 U.S.C. § 3142(g). They include the nature and circumstances of the offense charged, including whether the offense is a crime of violence or a federal crime of terrorism, the weight of the evidence against the defendant, the history and characteristics of the defendant and the nature and seriousness of the danger to any person or the community that would be posed if the defendant is released. A danger to the eom- munity does not only include physical harm or violent behavior. The concept of “safety” may include non-physical harm. United States v. Giampa, 904 F.Supp. 235, 358 (D.N.J.1995); United States v. Provenzano, 605 F.2d 85, 95 (3d Cir.1979) (<HOLDING>); see also S.Rep. No. 225, 98th Cong., 2d. Holdings: 0: holding that preventative detention under bail reform act justified by the need to prevent danger to the community was regulatory and preventative rather than punitive 1: holding that a defendants propensity to commit crime generally even if the resulting harm would be not solely physical may constitute sufficient risk of danger to come within contemplation of the bail reform act 2: holding that to come under the act the harm must be caused by a failure of something a worker is using to support himself 3: holding that nursing home owed duty not to subject resident to unreasonable risk of harm at hands of coresident with known propensity for violence 4: holding that monetary damages do not generally constitute irreparable harm


Input: for determining whether a war-rantless search of a probationer is reasonable is whether the police or probation officer has a well-founded suspicion that a probation violation has occurred. The determination of whether a probationer’s right to privacy has been violated is dependent, then, on the nature of the search conducted and is not dependent on the nature of the proceeding in which the fruits of the search are to be admitted. Id. at 1095 (emphasis original, internal footnotes and citations omitted). Appellant also cites Mason v. State, 838 S.W.2d 657, 659 (Tex. Ct. App. 1992) (recognizing that “[ejvidence that is obtained as a result of an illegal search and seizure is inadmissible over objection in a probation revocation hearing”), and State v. Dodd, 419 So.2d 333 (Fla. 1982) (<HOLDING>). The Commonwealth, in its brief, cites a Holdings: 0: holding that probation revocation proceedings are clearly not criminal proceedings 1: holding that the exclusionary rule embodied in the search and seizure provision of the state constitution applies in probation revocation proceedings 2: holding that probation and parole revocation hearings are not criminal proceedings such that the state exclusionary rule applies but noting that police misconduct which shocks the conscience may lead to invocation of the exclusionary rule 3: holding that exclusionary rule applies to civil forfeiture proceedings 4: holding that the exclusionary rule under the fourth amendment applies to civil forfeiture proceedings


Input: allowed to represent himself at trial requires answers to two principal questions: whether the defendant is competent to represent himself at trial, see Indiana v. Edwards, 554 U.S. 164, 170, 177-78, 128 S.Ct. 2379, [2387-88], 171 L.Ed.2d 345 (2008), ... and whether the request to proceed pro se is genuine, see, e.g., Faretta, 422 U.S. at 817, 95 S.Ct. [at 2532] (it is the defendant's "basic right to defend himself if he truly wants to do so” (emphasis added)). U.S. v. Barnes, 693 F.3d 261, 270 (2d Cir. 2012), cert. denied, — U.S. -, 133 S.Ct. 917, 184 L.Ed.2d 704 (2013). 57 . A similar argument was made and rejected in Hacker v. Herbert, 825 F.Supp. 1143, 1148-50 (N.D.N.Y. 1993). 58 . Graham v. Connor, 490 U.S. 386, 398 n.11, 109 S.Ct. 1865, 1873 n.11, 104 L.Ed.2d 443 (1989) ir. 1973) (<HOLDING>). 64 . Birdwell, 10 S.W.3d at 77. 65 . Holdings: 0: holding moving to proceed pro se after jury was impaneled but before it was sworn was timely as a matter of law 1: holding defendants pro se motion to reduce sentence was not properly before the trial court when defendant was represented by counsel since defendant may not proceed both by counsel and pro se 2: holding that a defendant has a right to proceed pro se at trial 3: holding no presumption of acquiescence because defendant was never allowed to proceed pro se 4: holding that a rule 121 colloquy is required only in response to a timely and unequivocal invocation of the right to proceed pro se


Input: a non-decision-maker’s discriminatory motives “somehow influenced” or “affected” the decision-maker. Wilson v. Stroh Cos., Inc., 952 F.2d 942, 946 (6th Cir.1992) (affirming summary judgment for employer because the plaintiff failed to submit evidence that his supervisor’s racial animus had somehow influenced or affected the decision of two other managers to terminate him; the managers’ decision was based on an independent investigation of the plaintiffs conduct); see also Dey, supra, 28 F.3d at 1459 (“Summary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action.”) (citations omitted); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990) (<HOLDING>). There is no question that there was Holdings: 0: 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 1: holding that summary judgment was improper even though the committee that formally terminated the plaintiff harbored no discriminatory animus the plaintiffs manager who harbored animus had tainted the committees decision by characterizing the plaintiff as a poor performer thereby rendering the committee a conduit of his prejudice 2: holding that the determinative question is whether the plaintiff has submitted evidence that a supervisors  animus was a cause of the termination 3: holding that cbs could raise the faragherellerth defense because even though the plaintiff was sexually harassed and terminated the evidence showed that plaintiff was terminated for leaving his camera during a live broadcast 4: holding that the plaintiff further must demonstrate that the conspiracy was motivated by a class based animus such as race


Input: may not be unreasonable for counsel to decide to proceed with a late filing in order to preserve WRIA’s action in court. The question, however, is whether counsel’s arguments justifying his non-compliance with the statutory filing requirement are “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” USCIT R. 11. (a) Argument under existing law: It is well established under Georgetown Steel that a civil action under 19 U.S.C. § 1516a(a)(2) must be commenced by two steps specified in that section: the filing of a summons within 30 days of the date of publication of the determination in the Federal Register; and the filing of a complaint within 30 days thereafter. Georgetown Steel, 4 Fed. Cir. (T) at 146-49, 801 F.2d at 1311-13 (<HOLDING>); Pistachio Group of Ass’n of Food Indus., Inc. Holdings: 0: holding that tenant had received more than 30 days to correct violations of the lease when the notice was served on february 27 and the complaint was filed on april 4 1: holding that the trial court had no jurisdiction to modify its final order more than 30 days after its final judgment 2: holding that prejudgment interest should accrue 30 days after fee petition was filed 3: holding that a habeas petition filed more than 30 days after the effective date of the real id act cannot be transferred to the court of appeals as a petition for review for lack of jurisdiction 4: holding that the court lacks jurisdiction where a complaint was filed more than 30 days after the filing of the summons


Input: apparent on the statute’s face and the question of their enforcement duties, if any, was not considered in the decision declaring the statutes unconstitutional, nor were the merits of the proposition otherwise litigated. Moreover, where, as here, the state defendants include members of the judiciary who “enjoy absolute immunity from damages liability for acts performed in their judicial eapaeitie[s],” Supreme Court of Virginia v. Consumers Union, 446 U.S. at 735, 100 S.Ct. at 1976, it is particularly important to give careful consideration as to whether liability is properly based upon the exercise of their enforcement authority since imposition of a fees award might be erroneously premised upon acts or omissions as to which the defendants are immune. See id. at 738, 100 S.Ct. at 1977 (<HOLDING>). Unquestionably, with respect to the Holdings: 0: holding trial court had no authority to award attorneys fees when arbitrator had stated he would not award attorneys fees 1: holding that a district court may award attorneys fees while the merits are on appeal 2: holding merely that the evidence was sufficient to support the award of attorneys fees 3: holding that an award of attorneys fees under supreme court rule 38 precursor to rule 222 did not preempt an award of attorneys fees to which one is otherwise entitled and thus appellant could seek an award of attorneys fees pursuant to section 1577300 which permits an award of fees for a party prevailing in an action against a state agency 4: holding district jourts award of attorneys fees was erroneous since court relied upon a theory of liability under which defendants had immunity


Input: 499 S.W.2d 673 (Tex.Civ.App.—El Paso 1973, no writ) (inadvertence by secretary in failing to note on calendar date answer was due); Republic Bankers Life Ins. Co. v. Dixon, 469 S.W.2d 646 (Tex.Civ. App.—Tyler 1971, no writ) (attorney forgot to prepare answer when his secretary placed the file with his general files rather than his active files); and Reynolds v. Looney, 389 S.W.2d 100 (Tex.Civ.App.—Eastland 1965, writ ref’d n.r.e.) (the citation was mislaid in insurance company’s office). 3 . The willingness of a party to go to trial immediately and pay the expenses of the default judgment are important factors for the court to look to in determining whether it should grant a new trial. They are not dispositive of whether the motion should be granted. See Cliff, 724 S.W.2d at 779 (<HOLDING>); Angelo, 713 S.W.2d at 98 (noting that courts Holdings: 0: holding that motion for a new trial whether for guilt or punishment requires a valid legal claim a court cannot grant a new trial unless the defendant shows that he is entitled to one under the law 1: holding that an offer to reimburse plaintiff for costs is not a precondition but an important factor for trial court to look at in determining whether it should grant a new trial 2: holding that the trial court can and should grant a new trial if the manifest weight of the evidence is contrary to the verdict 3: holding that court should not use ending date of indictment as determination of when continuing violation ended but should look at the evidence introduced at trial 4: recognizing that an appellate court reviews a trial courts decision whether or not to grant equitable relief only for an abuse of discretion


Input: standard for searches of the two. In reviewing the denial of a motion to suppress, we review the district court’s findings of fact for clear error and its application of law to those facts de novo. United States v. Gibson, 708 F.3d 1256, 1274 (11th Cir. 2013). All facts are construed in the light most favorable to the prevailing party below, in this case, the government. Id. The Fourth Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. Const, amend. IV. The Fourth Amendment’s protection against unreasonable searches and seizures applies to probationers. Owens v. Kelley, 681 F.2d 1362, -11 (11th Cir. 2005) (<HOLDING>); United States v. Carter, 566 F.3d 970, 973-75 Holdings: 0: holding that a probationers challenge to a condition of his probation was moot in light of the supreme courts reversal of the underlying conviction and the probationers apparent completion of probation  1: holding search provision in probation order constitute a reasonable and necessary element of the courts regulation of probationers which did not require the defendants consent 2: holding search of probationers computer by probation officers was reasonable even in absence of a search provision when conditions on probationers computer use reduced his expectation of privacy in his computer 3: holding that a roommate with shared access to anothers computer has common authority over the computer and can grant consent to search 4: holding warrantless search of probationers home by law enforcement officer for investigatory purposes was reasonable when conditions of probation included a search term and search was supported by reasonable suspicion


Input: prosecutor began his rebuttal direct examination by asking Sergeant DeGraff whether Turbe had asked him to call the F.B.I., and whether Turbe had called the F.B.I. himself. The prosecutor properly posed these questions in order to disprove Turbe’s statement that he had asked the police to call the F.B.I. for him after he was arrested. See United States v. Chrzanowski, 502 F.2d 573 (3d Cir. 1974) (“The proper function and purpose of rebuttal testimony is to explain, repel, counteract or disprove the evidence of the adverse party.”). Sergeant DeGraff responded to both questions in the negative. Without any further questioning by the for the prosecutor to question Turbe regarding the prior seizure of weapons from his house. See United States v. Jackson, 339 F.3d 349, 357 (5th Cir. 2003) (<HOLDING>); United States v. Vallie, 284 F.3d 917, 921-22 Holdings: 0: holding that the prosecutors question to the defendant about a prior unrelated offense was improper 1: holding prosecutors reference in closing argument to defendants prior conviction constituted an introduction of evidence so extremely unfair as to violate fundamental conceptions of justice and thus a deprivation of defendants right to due process 2: holding that the prosecutors indirect reference to a defendants prior conviction was improper 3: holding that prosecutors reference to cooperation agreements with government witnesses was not plain error 4: holding that the prosecutors reference to the nonexistence of mitigating evidence was not a comment on the defendants failure to testify


Input: that duty being to exercise reasonable care for the invitee's protection while she is on the premises. Id. Landowners owe a licensee the duty to refrain from willfully or wantonly injuring her or acting in a manner to increase her peril. Id. This includes the duty to warn a licensee of any latent danger on the premises of which the landowner has knowledge. Id. Finally, the duty owed to a trespasser is the duty merely to refrain from wantonly or willfully injuring her after discovering her presence. Id. However, even when dealing with an invitee, the landowner's duty of care is not limitless. The most common example of the limitation is when an invitee exceeds the scope of invitation, she loses her status. See Markle v. Hacienda Mexican Rest., 570 N.E.2d 969, 974 (Ind.Ct.App.1991) (<HOLDING>). Further, a landowner is not liable if the Holdings: 0: holding that a plaintiff can show that she is qualified by presenting credible evidence that she continued to possess the objective qualifications she held when she was hired 1: holding that even though the declarant was not in danger she was experiencing an ongoing emergency because she did not know where her children were and she feared for their safety 2: holding that the district court did not err in failing to address the defendant personally to determine whether she understood the rights she was waiving by admitting that she violated the conditions of her probation 3: holding that even though a visitor may be an invitee when she first enters the premises her status may change to licensee while she is there if the use to which she puts the property is not within the scope of the invitation 4: holding appellant produced no evidence that when she made her complaints to management she ever mentioned that she felt she was being treated unfairly due to her race or sex


Input: respondent mother made a knowing and voluntary waiver of her right to counsel before permitting her to do so and to proceed pro se, the trial court erred. See State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994) (“Before a defendant is allowed to waive in-court representation by counsel, the trial court must insure that constitutional and statutory standards are satisfied.” (emphasis added)), cert. denied, 515 U.S. 1107, 132 L. Ed. 2d 263, 115 S. Ct. 2256 (1995); State v. McLeod, 197 N.C. App. 707, 715, 682 S.E.2d 396, 400 (2009) (“N.C. Gen. Stat. § 15A-1242 makes it clear that the defendant must be advised of the aforementioned inquiries before being allowed to proceed pro se.” (emphasis added)). See also State v. Moore, 362 N.C. 319, 326, 661 S.E.2d 722, 726-27 (2008) (<HOLDING>). Consequently, the TPR order must be vacated. Holdings: 0: holding courts inquiry into probationers expressed desire to proceed pro se did not satisfy nc gen stat  15a1242 when court merely ascertained that probationer did not have counsel did not desire counsel and understood that he could have had counsel appointed court failed to inquire as to whether probationer understood and appreciated consequences of his decision and court failed to ascertain whether probationer comprehended nature of charges and proceedings and range of permissible punishments that he faced 1: holding defendants pro se motion to reduce sentence was not properly before the trial court when defendant was represented by counsel since defendant may not proceed both by counsel and pro se 2: holding that a defendants decision to proceed pro se was voluntary despite having to choose between that course and proceeding with counsel with whom he had expressed dissatisfaction because the defendant had not shown good cause for substitution of counsel 3: holding that later colloquy that took place between defendant and trial court concerning defendants decision to waive counsel did not cure earlier failure by court to fulfill requirements of nc gen stat  15a1242 because it did not take place until first day of defendants sentencing proceeding more than five months after defendant was permitted to proceed without assistance of counsel and approximately two months after defendant proceeding pro se pleaded guilty to murder 4: holding new trial was warranted where trial court did not make adequate determination pursuant to nc gen stat  15a1242 whether defendants decision to proceed pro se was knowingly intelligently and voluntarily made


Input: 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The Brecht rule applies even when the “federal habeas court is the first to review for harmless error.” Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir.1999). Under Brecht, a Doyle error only warrants reversal if the mistake “had substantial or injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637,113 S.Ct. 1710. A “reasonable possibility” that the error influenced the outcome is not enough to warrant relief. Id. Rather, the defendant must show a “reasonable probability” that the error af fected the verdict. Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The present case is not distinguishable on its facts from Brecht, 507 U.S. at 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (<HOLDING>). There is no reasonable probability that Holdings: 0: holding that an error must have a substantial and injurious effect on the verdict to entitle a petitioner to habeas relief 1: holding that states improper use of defendants postmiranda silence was error but did not warrant habeas relief unless error had a substantial and injurious effect or influence on the jurys verdict 2: holding that nonconstitutional error is harmless if it did not have substantial and injurious effect or influence in determining the jurys verdict 3: holding that a substantial right is affected when the error had a substantial and injurious effect or influence in determining the jurys verdict 4: holding that the states improper use of the defendants postmiranda silence to impeach the defendants claim that shooting was accidental did not have substantial and injurious effect or influence in determining jurys verdict and thus was harmless error


Input: customers were common in the industry, and pointed out that plaintiffs had not pleaded specifically how the individual defendants had acted fraudulently by counting such customers in a manner common to the industry. Id. In their amended complaint, plaintiffs have added ¶ 45(a), in which they allege that although Heartland represented in the press release that soft disconnects were common in the industry, “the counting of soft disconnects as ‘active’ subscribers is not, and to so count them was materially misleading.” Am.Compl. ¶ 45(a). Plaintiffs offer no facts to support their conclusory assertion that it was not customary in the industry to count soft disconnects as active subscribers. This allegation is insufficient as a matter of law to plead scienter. See Lovelace, 78 F.3d at 1020 (<HOLDING>). Nor do they address the other defects that Holdings: 0: holding that bare allegations about industry custom are inadequate to plead scienter 1: holding that the nonmoving party may not defeat a summary judgment motion by standing on the bare allegations in the pleadings 2: holding a plaintiff must plead sufficient factual allegations to establish that a plausible contract exists but need not plead every detail of the contract 3: holding that plaintiffs bare allegations of malice do not suffice particularly where such allegations are contradicted by plaintiffs own claims that defendants actions were financially motivated 4: holding that allegations of motive and opportunity were not enough to create a strong inference of scienter


Input: to act extends beyond thirty days. Landmark American Ins. Co. v. Pulse Ambulance Serv. Inc., 813 S.W.2d 497 (Tex.1991); Check v. Mitchell, 758 S.W.2d 755, 756 (Tex.1988); Ramirez v. Williams Bros. Const Co., 870 S.W.2d 551, 552 (Tex.App.-Houston [1st Dist.] 1993, no writ). We acknowledge that a trial court cannot issue an order of sanctions after its plenary power expires. Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594, 596 n. 2 (Tex.1996). However, where a party timely files a motion for sanctions which assails the trial court’s judgment and results in a modification of the judgment, the jurisdictional extension within Rule 329b(g) applies. See Lane Bank Equip. Co. v. Smith Southern Equipment, Inc., 981 S.W.2d 302, 303 (Tex.App.-Houston [1st Dist.] 1998, pet. granted) (<HOLDING>); Kirschberg v. Lowe, 974 S.W.2d 844, 847-48 Holdings: 0: holding that a timely filed motion for sanctions which specifically requested modification of judgment extended trial courts plenary power 1: holding that an award of attorneys fees under supreme court rule 38 precursor to rule 222 did not preempt an award of attorneys fees to which one is otherwise entitled and thus appellant could seek an award of attorneys fees pursuant to section 1577300 which permits an award of fees for a party prevailing in an action against a state agency 2: recognizing that the idea bars an award of attorneys fees for work performed subsequent to a settlement offer of all requested relief 3: holding that timely filed motion for sanctions which requested an award of over 40000 in attorneys fees requested a substantial change in the judgment 4: holding trial court had no authority to award attorneys fees when arbitrator had stated he would not award attorneys fees


Input: 385 (1991). Insofar as Bowling may be claiming that this alleged state-law error violated due process, we believe that any potential error was not so fundamentally unfair as to violate Bowling’s due-process rights. Insofar as Bowling may be claiming that this alleged error entitled him to an evidentiary hearing in federal court, we have considered and rejected this claim immediately above. 10 . There is a violation of state law here, however, because during the period between Caldwell and Dugger (and before the trial in this case), the Kentucky Supreme Court held that the word "recommend,” while technically accurate, improperly suggested to the jury that they were "merely one step in a long process.” Tamme v. Commonwealth, 759 S.W.2d 51, 53 (Ky.1988); cf. Kordenbrock, 919 F.2d at 1101 (<HOLDING>). We do not believe this violation of state law Holdings: 0: holding that appeal from a decision of the attorney general denying legal representation was before the appellate division as of right to review the final decision of a state officer 1: holding that there was no violation of state law because the trial and appeal in the case at bar happened before the decision in tamme and the decision in tamme was not retroactive 2: holding that the court of appeals in applying state law on appeal of a diversity action must apply law of the state as it existed at the time of its decision rather than as it stood at the time the case was decided in district court 3: holding an appellate decision becomes the law of the case and is controlling on both the trial court and on any further appeals in the same case 4: holding that even when there is a conflict of evidence before the commission and the evidence was such that the commission could have reasonably reached a contrary decision the commissions decision was not arbitrary and capricious


Input: Service; that Zou insufficiently explained material omissions in his earliest affidavit; and that Zou’s version of events was not consistent with the documentary evidence he submitted. We agree that there is substantial evidence in the record for the IJ’s adverse credibility determination against Zou and for the IJ’s decision to deny Zou asylum. We have carefully considered all of Zou’s arguments and find them to be without merit. Those arguments and supporting materials raised for the first time in this court without being properly presented to the IJ or the BIA cannot be considered; our jurisdiction is limited to the evidence in the record. See 8 U.S.C. § 1105a(a)(4)(1994); 8 U.S.C. § 1252(b)(4)(A)(2000); INS v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (<HOLDING>). For the reasons set forth above, the decision Holdings: 0: holding that the decision of the bia will not be affirmed by this court unless the reasons for such a finding are made clear 1: holding that the court of appeals committed clear error and seriously disregarded the agencys legally mandated role when it based its decision on information that had not been presented to the bia 2: holding that the court need not follow a decision of the district of columbia court of appeals where  it appears that the  court of appeals itself would not follow that decision 3: holding that we will not review an issue or claim that was not presented to the bia in the petitioners notice of appeal or brief to the bia even if the bia considered the issue or claim sua sponte 4: holding that under the arbitrary and capricious standard this court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment


Input: “agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint.” Bowden v. United States, 106 F.3d 433, 438 (D.C.Cir.1997) (citing Boyd v. United States Postal Serv., 752 F.2d 410, 414 (9th Cir.1985)); see also Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir.1992) (“In order to waive a timeliness objection, the agency must make a specific finding that the claimant’s submission was timely.”). We now adopt this rule as well. Indeed, were we to do otherwise we would “vitiate any incentive for [government] agencies to investigate and voluntarily remedy” instances of discrimination, lest the agencies risk forfeiting a valid defense to a potential suit. Bruno v. Brady, Civ. No. 91-2605, 1992 WL 57920, at *3 (E.D.Pa. Mar. 16, 1992) (<HOLDING>). Because Belgrave failed to present the Holdings: 0: holding that 28 usc  1331 does not constitute a waiver of sovereign immunity 1: holding that an agreement to submit age discrimination claims to arbitration does not constitute a waiver 2: holding an employees investigation of nothing more than his employers noncompliance with federal or state regulations does not state a whistleblower claim 3: holding that the ada does not contain a waiver of sovereign immunity and thus does not apply to the federal government 4: holding that acceptance and investigation of a federal employees complaint does not constitute waiver


Input: 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), because it is "inadequate”); State v. Lakin, 588 S.W.2d 544, 549 n.2 (Tenn.1979) ("Where, ... as in the particular phase of search and seizure law under consideration, there has been a settled development of state constitutional law which does not contravene the federal, we are not inclined to overrule earlier decisions unless they are demonstrably erroneous.”). While we recognize the rationale underlying the majority rule, we see no reason to depart from the standards of community care-taking that have developed in our state, particularly because neither party has articulated a persuasive basis for recognizing this as yet another exception to the constitutional protections against unreasonable searches and seizures. See Lakin, 588 S.W.2d. at 549 (<HOLDING>). The Defendant has argued strongly against Holdings: 0: recognizing our jurisprudence in this area has been somewhat inconsistent and confusing 1: recognizing that in the context of the open fields doctrine ajlthough the decisions in this state may be somewhat more restrictive than those in other states or than federal decisions no compelling reason has been demonstrated in this case for modifying or overruling them 2: holding that this courts review of board decisions is limited to final orders or final decisions 3: holding federal district courts do not have jurisdiction  over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state courts action was unconstitutional review of those decisions may be had only in this united states supreme court 4: holding that this court is not bound by decisions of the appellate division or the third circuit even where those decisions concern the same parties and legal issues


Input: Rule 404(b) prohibits introducing “[e]vi-dence of a crime, wrong, or other act ... to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b). But the Government may offer otherwise inadmissible evidence to “explain, repel, counteract, or disprove facts given in evidence by the opposing party.” United States v. Higgs, 353 F.3d 281, 329 (4th Cir.2003) (internal quotation marks omitted). Here, the district court appropriately permitted the Government to introduce the challenged evidence because Crow opened the door to such evidence. Crow’s contention that he opened the door as to testimony from one witness, but not another, is at odds with this Court’s precedent. See Higgs, 353 F.3d at 329-30 (<HOLDING>). Therefore, this claim lacks merit. We next Holdings: 0: holding that a threemember panel consisting of prison officials and potentially inmates is sufficiently impartial to adjudicate major infractions insofar as knowledge of the conditions of the prison environment is important to an understanding of the significance of events which occur therein prison officials and offenders theoretically comprise an ideal disciplinary hearing committee 1: holding that government was entitled to present rebuttal evidence of accuseds disciplinary infractions where accused presented testimony that he was avoiding trouble in prison 2: holding that prison disciplinary hearing committee members are entitled to qualified immunity 3: holding that the disclosure of proper rebuttal witness was not required 4: holding that police failure to inform the accused of his attorneys attempts to contact him and misstatements to the attorney as to whether the accused was at the police station did not violate the accuseds due process rights


Input: the “residual function” test used in Social Security Act cases). Thus, the Seventh Circuit concluded in DePaoli that the district court’s grant of summary judgment to the defendant on the plaintiffs disability claim was “premature” because the plaintiff presented evidence that she was “precluded from more than merely the Abbott production line job.” Id. at 673. In sum, because working is generally accepted as a major life activity, and be cause the determination whether a claimant is disabled depends on an individualized inquiry, the district court did not err in concluding that Burns was disabled because his back injury precluded him from performing at least 50% of the jobs previously available to him. See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 676 (7th Cir.1998) (<HOLDING>). Burns’s Status as a “Qualified Individual Holdings: 0: holding that it was proper for court to rely on affidavits of defendants representatives in negotiations because their personal knowledge and competence to testify are reasonably inferred from their positions and the nature of their participation in the matters to which they swore 1: holding that a reasonable jury could find the video clips were intended to be lascivious because the video camera involved in the production of the images was angled and zoomed such that the frame encompassed their nude bodies from their shoulders to below their knees 2: recognizing strong preference that children live in their own homes with their own families 3: holding that a rational trier of fact could reasonably find that the substantial percentage reductions 35  89 in the broad range of jobs available to the plaintiffs coupled with their own testimony about the effects of their disabilities on their work as production associates substantially limited them in the major life activity of working 4: holding that if undisclosed evidence might have affected the disposition of the summary judgment motion the plaintiffs chose not to disclose the basis of their claim and they did so at their own risk


Input: is essentially the same discretionary issue originally decided” by the BIA, we cannot review the decision because 8 U.S.C. § 1252(a)(2)(B)(i) bars jurisdiction. Id. A BIA ruling denying a motion to reopen because there is no prima facie case for relief under the hardship exception is such an instance of discretion. Id. In Fernandez, however, we reached the merits of due process claims stemming from the same discretionary denial. Id. at 603-04. To the extent the Cisneroses had colorable constitutional claims, we would have jurisdiction to adjudicate them under Fernandez. Id. Because direct appeal was available in this court, no Suspension Clause problem arises from the district court’s lack of jurisdiction under the REAL ID Act. See Puri v. Gonzales, 464 F.3d 1038, 1042 (9th Cir.2006) (<HOLDING>). The Suspension Clause does not require habeas Holdings: 0: holding that in its review of the irs exercise of discretion the court is limited to a review of the administrative record 1: holding that there is no right to habeas review of administrative evidentiary determinations before a district court where direct review of the administrative proceedings is available in the appellate courts 2: holding that there was adequate opportunity when state court judicial review of an administrative proceeding was available 3: holding that there is no due process right to appellate review 4: holding that appellate review of an administrative agencys factual determinations is circumscribed


Input: claiming that the district court failed to consider the effect that one of section 9(l)’s three factors — the “seriousness of the [defendant’s] offense” — had on its decision to dismiss without, as opposed to with, prejudice. Id. § 9(1). We find no abuse of discretion in the district court’s dismissal of the indictment without prejudice. United States v. Kurt, 945 F.2d 248, 252 (9th Cir.1991). The district court discussed section 9(l)’s three-factor standard in its June 7, 2002 Order setting Smith’s motion for hearing, and the Government argued the seriousness of Smith’s offense at the hearing. Though the district court did not make an express finding to the effect, Smith’s offense was, in fact, quite serious. See, e.g., United States v. Tummolo, 822 F.Supp. 1561, 1565 (S.D.Fla.1993) (<HOLDING>). Coupled with the district court’s findings on Holdings: 0: holding that armed robbery suspect was entitled to bail hearing even though armed robbery was considered capital offense under mississippi law because maximum sentence was life imprisonment 1: holding the imposition of a maximum sentence of life imprisonment was not excessive for conviction of possession of cocaine where defendant was adjudged to be a fourth felony offender with prior convictions for manslaughter two prior convictions for possession of cocaine and numerous arrests for drug offenses possession of a firearm by a felon aggravated battery and armed robbery 2: holding that possession of a firearm by a felon is a serious offense for  3162a2 purposes 3: holding that armed robbery and being a felon in possession are serious offenses for section 91 purposes 4: holding that a conviction for florida armed robbery is a crime of violence under the armed career criminal act


Input: counters that the Country Club was not a party, and if it was, it was no more than an affiliated successor-in-interest or surrogate of Catalina and had no independent right to excuse the district judge. We resolve the issue in favor of the City though on different grounds. {94} The right of peremptory excusal under Rule 1-088.1 is party specific. That is, each party has a separate right of excusal which cannot be affected by the actions of other parties in a case. Thus, in JMB Retail Props., Co. v. Eastburn, 114 N.M. 115, 118, 835 P.2d 831, 834 (1992) our Supreme Court clarified that only that party who requests a discretionary act of the judge will thereafter be precluded from later exercising a peremptory challenge. Saavedra v. Thomson, 114 N.M. 718, 719, 845 P.2d 812, 813 (1992) (<HOLDING>). {95} Here, the right of peremptory challenge Holdings: 0: holding improper counsels argument that opposing counsel knew why plaintiff delayed in bringing action where opposing counsels knowledge was not in evidence 1: holding that hearsay evidence is not acceptable in opposing a summary judgment motion 2: holding that laches is an affirmative defense 3: holding that not opposing a motion is not an affirmative act requesting discretionary action 4: holding that fair use is an affirmative defense


Input: United States Industries, 736 F.2d 656, 657 (11th Cir.1984); Pyramid Securities Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C.Cir.1991). It may be argued that this principle does not apply where a non-moving party's testimony changes over a very brief period of time. Here, Mullins's testimony changed overnight. In any event, the disputes in the record are not material and this is dispositive. 20 . It is worth noting that in adopting this position to avoid the consequences of Maryland law, Mullins is taking a position inconsistent with her original contention that she was terminated in Maryland on March 26. 21 . See Kessler v. Equity Management, Inc., 82 Md.App. 577, 585, 572 A.2d 1144 (1990). 22 . See Watson v. Peoples Sec. Life Ins. Co., 322 Md. 467, 478, 588 A.2d 760 (1991) (<HOLDING>); Ewing v. Koppers Co., 312 Md. 45, 49, 537 Holdings: 0: recognizing a tort action for wrongful discharge when employee was terminated because he refused to commit a criminal act 1: holding a claim for patronage dismissal was legally cognizable 2: recognizing cause of action for wrongful discharge 3: holding that accountant terminated for refusing to violate professional codes stated cognizable claim for wrongful discharge 4: holding no legally cognizable claim for wrongful discharge where employee was terminated after seeking legal redress against a coworker for assault and battery


Input: to it, Massachusetts law does not provide for prejudgment interest to be included in uninsured motorist arbitration awards. However, as mentioned above, we have specifically held that arbitrators have the authority to award prejudgment interest in excess of policy limits and “that; arbitrators should add prejudgment interest to their awards unless the parties specifically provide otherwise by agreement.” Sentry, 556 A.2d at 1000 (quoting Paola, 461 A.2d at 937) (emphasis added). Thus, we hold that defendant’s argument that the arbitrator- awarded on a matter not submitted to him has no merit. Furthermore, we hold that any argument that defendant makes pursuant to the application of Massachusetts law was waived because it was not submitted to the arbitrator. See Aponik, 844 A.2d at 706 (<HOLDING>). The defendant admitted in the trial court and Holdings: 0: holding defendant liable for attorneys fees when the guaranty contract at issue provided for the payment of collection costs and expenses 1: recognizing that an award of temporary attorneys fees and costs is based on an assessment of need and ability to pay as well as the reasonableness of the fees and costs 2: holding that the failure to request attorneys fees and costs during arbitration waived any rights provided by the mechanics lien statute 3: holding that where the arbitration agreement was silent on feesplitting and the costs imposed upon the plaintiff by the aaa were not prohibitive the plaintiff had presented little evidence to indicate that arbitration would be prohibitively expensive and the fees and costs of arbitration did not render the arbitration scheme unconscionable 4: holding that oncors request for the trial judge rather than the jury to determine the reasonableness of its attorneys fees and the failure to submit the question of attorneys fees to the jury resulted in a waiver of oncors claim for the recovery of attorneys fees


Input: apartment # 3 constituted an illegal search for Fourth Amendment purposes, and the fruit of that search, which was the information that Jackson’s key fit the lock, was used to obtain the search warrant for apartment # 3. Thus, Taylor argues that the corrected search warrant for apartment # 3 was tainted and invalid because it was fruit of the poisonous tree. The Eighth Circuit has not decided whether trying a key in a lock constitutes a search for purposes of the Fourth Amendment. See United States v. Dickson, 58 F.3d 1258, 1264 (8th Cir.), superseded on other grounds, 64 F.3d 409 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 747, 133 L.Ed.2d 695 (1996). The federal courts of appeals are split on this issue. See, e.g., United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir.1991) (<HOLDING>); United States v. Lyons, 898 F.2d 210, 212-13 Holdings: 0: holding that in a  1983 action issue of probable cause is for the jury 1: holding that although the owner of a lock has enough privacy interest in a keyhole to make the inspection of that lock a search the privacyinterest is so small that no probable cause is needed to inspect it 2: holding that a defendant has no constitutional right to challenge the search or seizure of property belonging to a third party even if the search was without probable cause 3: holding that the subjective intent of the officer is no longer determinative wjhen applying the objective test generally the only determination to be made is whether probable cause existed for the stop in question and that per whren a violation of traffic law provided sufficient probable cause to make the subsequent search and seizure reasonable 4: recognizing that a greater expectation of privacy exists in property that is carried on ones person so that probable cause is required


Input: would even affect the payment of the JT & T parties’ claim. The JT & T parties have not provided this court with any description of their claim or the assets out of which that claim could potentially be paid, much less pointed to evidence in the record to substantiate any such allegations. Without this kind of evidence, it is impossible to ascertain whether there is a reasonable likelihood that the JT & T parties would actually be harmed in their capacity as creditors by the grant of derivative standing. If, for example, the estate contains little of value aside from the fraudulent conveyance claims and the JT & T parties’ claim is unsecured and subordinate to those of all other creditors, it is very possible that the JT & T p 94-1109, 1995 WL 66622, at *2 (6th Cir. Feb.16, 1995) (<HOLDING>); Chemlen v. Bank of Ir. First Holdings, Inc., Holdings: 0: holding that beneficiaries of an estate lacked standing under rico to sue for an injury derivative of the estates injury 1: holding that the debtors had standing to challenge the settlement of the estates right to sue various entities because the outcome of this litigation could potentially have a huge effect on the liabilities of the debtors and could give them a substantial surplus upon emerging from bankruptcy 2: holding that the decedents estate had standing because the traditional requirement that the plaintiff show an injury in fact that is fairly traceable to the conduct of the defendant is met by the allegation in the complaint that the defendants actions resulted in the diminishment of the assets of the estate 3: holding that debtors lacked appellate standing because they had not provided information regarding the estates other assets and liabilities the cost of litigation or other factors regarding the litigations impact on the estate 4: holding that the debtors false statements about the location of assets of the estate were material to the proceedings


Input: may well be, as I have argued elsewhere, that there is something intrinsically immoral about condemning a man as a criminal while telling oneself, "I believe that there is a chance of one in twenty that this defendant is innocent, but a 1/20 risk of sacrificing him erroneously is one I am willing to run in the interest of the public’s — and my own— safety.” 84 Harv.L.Rev. at 1372. 17 . As the majority points out, Judge Kennedy sat for twenty days, heard testimony from eight expert witnesses, admitted over 110 exhibits, and received over 1,300 pages of briefs. I want to go on record with a commendation for all counsel. 18 . Presumably the testimony of the complainant in this case will not need corroboration. 19 . See State v. Vandebogart, — N.H. —, - —, 616 A.2d 483, 493-94 (N.H.1992) (<HOLDING>). 20 . The Committee has voiced serious concern Holdings: 0: holding that after review the minutes were unambiguous and the trial judge erred in admitting parol evidence 1: holding that product rule method of dna statistical evidence is now generally accepted in the relevant scientific community 2: holding that trial court erred in admitting population frequency estimates used by fbi since such statistical techniques are not generally accepted among population geneticists because of the debate regarding population substructure 3: holding that determining corporate value may be done by including proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court 4: holding that no serious dispute exists as to whether the techniques involved in rflp analysis are generally accepted


Input: Weintraub and Resnick, Freezing, the Debtor’s Account: A Banker’s Dilemma Under the Bankruptcy Code, 100 Banking Law Journal 316, 321-22 (1983); Groschadl, “Freezing” the Debtor’s Bank Account: A Violation of the Automatic Stay?, 57 American Bankruptcy Law Journal 75, 77 (1983); Freeman, Setoff Under the New Bankruptcy Code: The Effect on Bankers, 97 Banking Law Journal 484, 506 (1980). Unquestionably, if the funds in the bank accounts are indeed cash collateral, that is, if the bank has a valid claim within 11 U.S.C. § 506(a), subject to a setoff not defeated by the exceptions in 11 U.S.C. § 553(a), then the debtor in possession must obtain the Court’s authorization or the bank’s consent before drawing on the funds, 11 U.S.C. § 363(c)(2). See Cusanno v. Fidelity Bank, 29 B.R. at 812 (<HOLDING>). Since, if the bank is right about the status Holdings: 0: holding that a chapter 13 debtor should be able to obtain a copy of his transcript in light of the broader discharge provision of chapter 13 1: holding that notwithstanding a debtors inability to obtain a chapter 13 discharge a debtor is nonetheless eligible to file a chapter 13 case 2: holding that there is no statutory authority in chapter 13 which grants a chapter 13 debtor independent standing to sue under the trustees  avoidance power 3: recognizing the requirement of  363 to obtain approval or consent in a chapter 13 case 4: holding tort action accruing after original chapter 7 petition not part of estate when case converted to chapter 13 and then back to chapter 7