Input: substances may have been marijuana being, used in a criminal enterprise in which the marijuana was delivered in amounts of less than one-fourth of an ounce, which would not constitute a felony offense. Considering the evidence, in the light most favorable to the challenged finding, indulging every reasonable inference that would support it, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not, the trial evidence would not enable reasonable and fair-minded people to find that the money is contraband under the charge submitted to the jury. Therefore, the evidence is legally insufficient to support the jury’s finding that the seized money is contraband. 1 . See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000) (<HOLDING>); Hirschfeld Steel Co. v. Kellogg Brown & Root, Holdings: 0: recognizing that a defendant physicians own practice was at least some evidence of the standard of care and concluding that the case was properly submitted to the jury notwithstanding the plaintiffs failure to call an independent expert on the standard of care 1: holding that jackson standard is only standard to use when determining sufficiency of evidence 2: holding that appellate court could not review the sufficiency of the evidence  based on a particular legal standard because that standard was not submitted to the jury and no party objected to the charge on this ground or requested that the jury be charged using this standard 3: holding that the standard of review for the sufficiency of the evidence is the same as the standard for denying a motion for a directed verdict 4: holding that even if the standard for waiver is clear the standard was not met


Input: re Marc Antoine Fenelon, No. A038 921 625 (B.I.A. Jan. 14, 2016), aff'g No. A038 921 625 (Immig. Ct. N.Y. City Dec. 14, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We have reviewed the decisions of both the IJ and BIA “for the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Despite Fenelon’s assertions otherwise, we lack jurisdiction to review a final order of removal against an alien who is removable by reason of having committed a controlled substance offense. 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A)(iii); Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015) (<HOLDING>). Nevertheless, we retain jurisdiction to Holdings: 0: holding that the jurisdictional bar applies as long as an alien is removable regardless of whether the predicate offense was the reason for removal 1: holding a decision under the cat to deny even deferral of removal does not fall within the jurisdictionstripping provisions of either  1252a2b or  1252a2c 2: holding substantial evidence supported the denial of cat relief where the petitioners cat claim was based on the same testimony the ij found not credible and the petitioner pointed to no other evidence that the ij should have considered 3: holding that the jurisdiction stripping provision found at 8 usc  1252a2c applies only to removal orders not to applications for asylum withholding of removal or cat relief 4: holding that the jurisdictional bar applies to the denial of deferral of removal under the cat


Input: 26-acre tract. 10 . If anything, Rubarts may lend support to an estoppel defense by the Dearings. See 896 F.2d at 112. The Dearings assert that Perry is estopped from asserting his homestead rights to the 26-acre tract the first time in their reply brief to this court. Because "an appellant’s original brief abandons all points not mentioned therein,” and the argument has not been fairly presented to the bankruptcy court, we decline to consider this new argument. Piney Woods Country Life School v. Shell Oil Co., 905 F.2d 840, 854 (5th Cir.1990)(quoting Nissho-Iwai Co. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1539 n. 14 (5th Cir.1984)). Accord City of Abilene v. EPA, 325 F.3d 657, 661 n. 1 (5th Cir.2003). 11 . See White v. Stump, 266 U.S. 310, 313, 45 S.Ct. 103, 69 L.Ed. 301 (1924)(<HOLDING>). 12 . The affidavit itself does not contain Holdings: 0: holding that the relevant time of inquiry is the date of the filing of the complaint 1: holding that the right of the debtor to claim property as exempt is generally determined on the facts as they exist on the date of the filing of the petition 2: holding that facts as they existed on the date of the original bankruptcy petition not on the date of conversion from chapter 13 to chapter 7 bankruptcy applied 3: holding that the determination of whether the debtor is using real property as his principal residence is made as of the petition date for the purposes of section 1322b2 4: holding that a debtors entitlement to an exemption under  522d1 is determined as of the filing date of  a bankruptcy petition


Input: justified on balance, we emphasize that their appraisal of Bar-tell’s mental disabilities was an insufficient predicate for abrogating her parental rights. Specifically, both the district court and Defendants place significant credence on Dr. Van Goethem’s evaluation of Bar-tell’s “limited” intelligence level, see Bartell, 12 F.Supp.2d at 648, which is purportedly manifested by her low verbal IQ test score. While critical thinking and reasoning skills are undoubtedly relevant, at some level, to the ability of a parent to raise her child, the State must make a specific and tangible showing, not a presumptive one, on the precise nature of the links between these capacities and a particular child’s needs. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (<HOLDING>). In this case, Dr. Van Goethem’s report is Holdings: 0: holding the online solicitation statute was not narrowly drawn to effectuate a compelling state interest and there were more narrow means of achieving the states interest in protecting minors 1: recognizing that under the act states are granted federal funds to provide disabled children with a free appropriate public education in the least restrictive environment 2: recognizing the compelling interest in highway safety 3: holding that narrowtailoring requires a state to act with precision and to use the least restrictive means of achieving its compelling interest 4: holding that the government may not burden conduct motivated by a sincerely held religious belief unless the government acts by the least restrictive means to further a compelling state interest


Input: law only. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (“We conclude that Young ... [is] inapplicable in a suit against state officials on the basis of state law.”). Moreover, Acting Commissioner Mauriello is merely a co-defendant along with NJ DEP. Nothing about this suit suggests that it is aimed a Mauriello’s actions, apart from NJ DEP itself. See MCI Telecomm. Corp. v. Bell Atlantic- Pennsylvania, 271 F.3d 491, 506 (3d Cir.2001) (“Young does not apply if, although the action is nominally against individual officers, the state is the real, substantial party in interest and the suit in fact is against the state.”) (citing Pennhurst); see also Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944) (<HOLDING>). Thus, Ex Parte Young does not apply. (2) Nor Holdings: 0: holding that a damages suit against a state officer in his official capacity was barred because it was functionally a suit against the state 1: holding that a suit against a state official in his or her official capacity is a suit against the state itself and not cognizable under  1983 2: holding that a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the officials office 3: holding a suit against an agency of the state is a suit against the state 4: holding that suit against county sheriff in his official capacity was suit against county


Input: and operators at the time of release are responsible parties regardless of who caused the release of hazardous substances. New York v. Nat’l Servs. Indus. Inc., 352 F.3d 682, 684 (2d Cir.2003); Shore Realty, 759 F.2d at 1044. The term “operator” in the case of a facility means: “any person who :.. operated, or otherwise controlled activities at such facility immediately beforehand.” 42 U.S.C. § 9601(20)(A). Under CERCLA, “any person who operates a polluting facility is directly liable for the costs of cleaning up the pollution.” U.S. v. Bestfoods, 524 U.S. 51, 65, 118 S.Ct. 1876, 1886, 141 L.Ed.2d 43 (1998). “This is so regardless of whether that person is the facility’s owner, the owner’s parent corporation or business partner, or even a saboteur who sne 854, 854 (D.Del.1989) (<HOLDING>). Here, the Plaintiffs argue that the Fire Holdings: 0: holding that an organization lacked standing to challenge allegedly lax epa regulations of hazardous waste because its members did not have to follow the lax procedures 1: holding that where a regulation could not fairly be read to have spoken at all on an issue an agencys proposed interpretation of the regulation as it pertained to that issue was not a reasonable interpretation of the regulation 2: holding that a states regulation of a hazardous waste site did not make it an operator of the site 3: recognizing oklahomas policy of allowing regulation instead of competition in waste disposal services 4: holding local regulation of hazardous waste disposal facilities preempted by comprehensive and detailed state regulatory scheme


Input: that the armed robberies were offenses “occurring on occasions different from one another” using Shepard-approved materials. “We review de novo whether crimes were committed on occasions different from one another within the meaning of the ACCA.” Weeks, 711 F.3d at 1261. II- McCloud contends that the Government failed to meet its burden of proof because the Shepard documents do not state the time and location of his prior convictions,' or otherwise indicate that the offenses were “temporally distinct.” See id.; Almedina, 686 F.3d at 1315. The Shepard documents in this case include the charging documents for each armed' robbery, the transcript of the plea colloquy, and undisputed statements in the PSI. McCloud’s arrest affidavits are not Shepard documents. See Sneed, 600 F.3d at 1383 (<HOLDING>); of United States v. Rosales-Bruno, 676 F.3d Holdings: 0: holding that an ij could not consider a police report as part of the record of conviction to determine whether an alien had committed a firearms offense because the police report could encompass many offenses with which the alien was never charged or convicted 1: holding that the defendant may not state one ground at trial and another on appeal 2: holding that defendants prosecution on dui charges was not timeharred even though amended accusations were filed more than two years after offenses were committed because original citations pertaining to the same offenses and conduct were filed prior to the statute of limitations expiration 3: holding that courts may not use police reports to determine whether predicate offenses under  924e1 were committed on occasions different from one another  4: holding that under the bail reform act for a defendant to have been convicted of two or more offenses constituting crimes of violence offenses must have been committed on different occasions


Input: body language would not be improper — was also reasonable. See Burks, 27 F.3d at 1429 & n. 3 (noting that trial counsel’s evaluation of a potential juror’s demeanor, tone, and facial expressions may lead to a "hunch” or "suspicion" that the juror might be biased, and that a peremptory challenge based on this reason would be legitimate); United States v. Power, 881 F.2d 733, 740 (9th Cir.1989) (accepting as legitimate the government's explanation that a juror’s "fidgeting and looking around as he sat in the jury box ... made the prosecutor believe that the individual would not be an attentive juror”). 12 . Although Collins does not challenge the prosecutor's strike against Juror 019, this strike is relevant to Collins’ Batson challenge. See Hernandez, 500 U.S. at 363, 111 S.Ct. 1859 (<HOLDING>) (internal quotation marks omitted); Purkett, Holdings: 0: holding intent may be inferred from all facts and circumstances 1: holding that parties may stipulate to facts from which jurisdiction may be inferred 2: holding that a prosecutors motive may often be inferred from the totality of relevant facts 3: holding that fraud may be inferred from circumstantial evidence 4: holding that an invidious discriminatory purpose may often be inferred from the totality of the relevant facts


Input: we must now determine whether Stebner was prejudiced sufficiently enough to render the jury’s verdict manifestly unjust. See Erickson, 175 Mont. at 91, 572 P.2d at 520. ¶21 We agree with Alside that Stebner was not prejudiced by Juror Schneider’s comment regarding her research and subsequent understanding of the term “preponderance.” The comment did not affect the verdict because the jurors had already voted eleven to one in favor of Alside when the comment was made. Also, two jurors testified that they based their vote on the evidence, not on Juror Schneider’s comment. Three jurors testified that they based their vote on the evidence presented at trial. Moreover, no new information was presented on the definition of “preponderance.” See Erickson, 175 Mont. at 92, 572 P.2d at 520 (<HOLDING>). According to the affidavits, the internet Holdings: 0: holding that the alleged brady material was merely cumulative to the significant impeachment that already occurred during trial so there was no prejudice for a brady violation 1: holding no prejudice occurred because no new information was presented on the material matter in dispute 2: holding summary judgment was not warranted because material facts were in dispute 3: holding no issue of material fact as to whether defendant was volunteer because he received no compensation 4: holding that where no factual dispute is raised no hearing is required


Input: ineffective assistance of trial counsel claims cannot be procedurally barred and thus may always be raised for the first time on post-conviction. See Stiles v. State, 902 P.2d 1104, 1108 (Okl.Cr. 1995). 13 . Sellers v. State, 889 P.2d 895, 897-98 (Okl.Cr. 1995); Castro v. State, 880 P.2d at 388; Mann v. State, 856 P.2d 992, 994 (Okl.Cr. 1993), cert. denied, - U.S. -, 114 S.Ct. 1869, 128 L.Ed.2d 490 (1994); Nguyen v. State, 844 P.2d 176, 178 (Okl.Cr.1992), cert. denied, - U.S. -, 113 S.Ct. 3006, 125 L.Ed.2d 697 (1993). 14 . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States Supreme Court has not specifically set forth a standard by which to assess the effectiveness of appellate counsel. See Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 833, 83 L.Ed.2d 821 (1985) (<HOLDING>). However, this Court has applied the Holdings: 0: holding that when a state provides a first appeal as of right due process requires that defendants receive the effective assistance of counsel during that appeal 1: holding that defendants are entitled to effective assistance of appellate counsel on their first appeal as of right 2: holding that the due process clause requires that criminal defendants be provided the effective assistance of counsel on their first appeal of right but declining to devise the means by which to define the appropriate standards for judging claims of ineffective assistance of appellate counsel 3: recognizing that a criminal defendants right to counsel is the right to the effective assistance of counsel 4: holding a criminal defendant has the right to effective assistance of counsel during a plea process


Input: resolve the question of whether a confession, the voluntariness of which has been fully and finally litigated in prior proceedings, precludes a convicted person from subsequently presenting a prima faeie case that exculpatory results obtained from DNA testing of items of evidence would establish his or her actual innocence, requires us to interpret the relevant language of Section 9543.1. Because statutory interpretation is a matter of law, our standard' of review is de novo, and our scope of review is plenary. Commonwealth v. McClintic, 589 Pa. 465, 472, 909 A.2d 1241, 1245 (2006). Consequently, we are not bound by the lower court’s conclusions regarding the proper meaning of the applicable provisions of this statute. See Commonwealth v. Kyle, 582 Pa. 624, 632, 874 A.2d 12, 17 (2005) (<HOLDING>). Our review is further governed by the Holdings: 0: holding that on review of a motion to suppress the appellate court is to give deference to a trial courts factual findings but legal conclusions are reviewed de novo 1: holding that where the issue before the court is legal as opposed to factual an appellate court need not give deference to a trial courts decision 2: holding that the grant of an injunction is reviewed for abuse of discretion but without deference to the legal conclusions of the trial court 3: holding that a trial courts statutory interpretation is given no deference on review 4: holding that our court owes no duty of deference to the legal conclusions of lower courts regarding an issue of statutory construction


Input: term would run concurrently with the pending state sentence. But when later asked whether the sentences should run concurrently, the federal sentencing judge indicated that they should not. The BOP subsequently denied NPT concurrent sentencing designation. Mr. Thomas argues, however, that the sentences should run concurrently because that is what he agreed to in his state plea agreement. But as we recently explained in a factually similar case, “[although [Mr. Thomas’s] state sentence provides for concurrent service of the federal and state sentences, the state court’s decision cannot alter the federal-court sentence,” which runs consecutively to, not concurrently with, the state sentence. United States v. Eccleston, 521 F.3d 1249, 1254 (10th Cir.) (citing Bloomgren, 948 F.2d at 691) (<HOLDING>), cert. denied, — U.S. -, 129 S.Ct. 430, 172 Holdings: 0: holding that federal and state courts have concurrent jurisdiction over  1983 claims 1: holding that although the defendant was paroled rather than released unconditionally his state sentence was discharged for purposes of deciding whether the federal judge could impose a concurrent sentence 2: holding federal courts are bound by state court determinations of state law 3: holding that a federal court litigant who is forced into state court under pullman may reserve a right to return to federal court in that the plaintiff can preserve the right to the federal forum for federal claims by informing the state court of his or her intention to return following litigation of the state claims in the state court 4: holding that whether a defendants federal sentence would run consecutively to his state sentence is a federal matter which cannot be overridden by a state court provision for concurrent sentencing on a subsequentlyobtained state conviction


Input: 102, 104 (1888). The Iowa Supreme Court similarly held “that the communication by a husband of a venereal disease to his wife, knowingly, is good and sufficient cause for a divorce, and is cruelty of the most flagrant kind.” Holmes v. Holmes, 186 Iowa 336, 170 N.W. 793, 794 (1919). The Maryland Court of Appeals held that “if a spouse, although knowing he or she is afflicted with a venereal disease, yet continues to maintain sexual relations and communicates the disease to the other spouse, such action constitutes extreme cruelty.” Kline v. Kline, 179 Md. 10, 16 A.2d 924, 925 (1940). And the Supreme Court of holding that knowing communication of an STD to a wife was “extreme cruelty” and grounds for divorce); Cadle v. Cadle, 28 Tenn.App. 498, 191 S.W.2d 561, 561-62 (Tenri.Ct.App.1945) (<HOLDING>). While the most recent of the above-cited Holdings: 0: recognizing a claim of cruel inhuman and degrading treatment based on alleged sexual abuse 1: holding that communication of a venereal disease would constitute cruel and inhuman treatment 2: recognizing that denying outofeell exercise for extended periods may constitute cruel and unusual punishment 3: holding that what constitutes cruel and unusual punishment is a question of law 4: holding cruel and unusual punishment complaint not preserved


Input: of the elements of a cause of action.’ ” Id. (quoting Coody v. A.H. Robins Co., 696 S.W.2d 154, 156 (Tex.App.-San Antonio 1985, writ dism’d by agr.)); Reynolds v. Guido, 166 S.W.3d 789, 793 (Tex.App.-Dallas 2005, pet. denied). When asserting a limitations defense at the pleading stage, the defendant’s burden to establish the accrual date includes negating the applicability of the discovery rule. Doe v. L cognizing a two-year statute of limitations for DTPA and negligence claims under Texas law). The Texas statute of limitations for fraud and breach of contract claims is four years. See Tex. Civ. Prac. & Rem.Code Ann. § 16.004(a)(4) (Vernon 2002) (fraud); Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (Vernon 2008) (breach of contract); Newby v. Enron Corp., 542 F.3d 463, 468 (5th Cir.2008) (<HOLDING>); Stine v. Stewart, 80 S.W.3d 586, 592 Holdings: 0: holding that either a fouryear or a twoyear limitations period applies to claims under the idea in ohio for tuition reimbursement either way the claims were timebarred 1: holding that fouryear residual statute of limitations applied to claim for commonlaw rescission 2: recognizing a fouryear statute of limitation for fraud claims 3: holding fouryear period for statutory actions applies to section 440205 claims 4: holding that duration of limitation is a factor in determining whether limitation is significant


Input: occurs prior to the fraud. The alleged fraud must be prior to or contemporaneous with the securities transaction in question.” Perez-Rubio v. Wyck-off, 718 F.Supp. 217, 236 (S.D.N.Y.1989) (cited in Dietrich v. Bauer, 76 F.Supp.2d 312, 342 (S.D.N.Y.1999)). The fraud alleged by plaintiffs dates back to the first day of the relevant class period, February 19, 1998. Plaintiffs allege a continuous fraudulent scheme by defendants, and not that defendants only engaged in fraudulent acts when they announced in their February 1999 press release that the IPR & D figures for the acquisition of Rosetta and Sense8 were going to have to be changed. Further, the Supreme Court has approved of the “fraud on the market theory.” Basic Inc. v. Levinson, 485 U.S. 224, 241-50, 108 S.Ct. 978, 99 L.Ed.2d 194 (<HOLDING>). Plaintiffs impliedly allege that they relied Holdings: 0: holding that reliance is not a required element of securities fraud in a state enforcement action in idaho 1: holding that reliance is not an element to be proven under securities fraud in indiana 2: holding reliance is still an element of a 10b5 action and that the fraud on the market theory subject to rebuttal is applicable to meet the reliance element in securities fraud cases where corporations make materially misleading statements in an impersonal and efficient market 3: holding that reasonable reliance is not an element of the defense 4: holding that reliance may be established by proof that securities not traded on the open market could not have been issued at all but for a fraudulent scheme of the defendants the plaintiff still had to prove that he relied on the integrity of the offerings of the securities market


Input: claim or might motivate the court of appeals to raise such a claim on its own. In summary, under the circumstances, the court of appeals ought to have addressed the preservation issue urged in the State’s motion for rehearing. This case involves a serious question about whether error was in fact preserved under common, everyday notions of procedural default. This Court should either remand the case to the court of appeals to consider the issue or it should consider the preservation issue on discretionary review. I respectfully dissent to the Court’s decision to dismiss this petition as improvidently granted. 1 . 791 S.W.2d 121 (Tex.Crim.App.1990). 2 . Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex.Crim.App.1997); see also Hughes v. State, 878 S.W.2d 142, 151 (Tex.Crim.App.1992) (<HOLDING>) and Fuller v. State, 829 S.W.2d 191, 199 n. 4 Holdings: 0: holding that a motion for rehearing regarding a preservation of error issue was an appropriate vehicle to force appellate courts to observe their systemic requirements 1: holding that preservation of error in the trial court is not necessary as to lack of standing 2: recognizing fundamental error as an exception to the general rule of preservation 3: holding that if these preservation requirements are met any error in the denial of a challenge for cause is reversible error 4: holding that since prosecutorial comments did not constitute fundamental error absence of preservation of issue by defense counsel precluded appellate review


Input: of a motion to reopen and review de novo claims of due process violations including claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). Jurisdiction is proper under 8 U.S.C. § 1252, and we deny the petition for review. The BIA has established several procedural requirements for aliens seeking to reopen their removal proceedings based on a claim that they were denied due process because of the ineffective assistance of their attorney. See Matter of Lozada, 19 I. & N. Dec. at 639. Petitioners concede that they did not satisfy the hozada requirements, but argue that compliance is unnecessary because their former counsel’s ineffectiveness is obvious on the face of the record. See Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir.2000) (<HOLDING>). To demonstrate ineffective assistance of Holdings: 0: holding that an ineffective assistance of counsel claim must be raised on direct appeal when the facts supporting the claim are presented on the face of the record 1: holding that failure to comply with the hozada requirements is not fatal where the alleged ineffective assistance is plain on the face of the administrative record 2: holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record 3: holding that the petitioner was not entitled to claim ineffective assistance because she did not comply with the lozada requirements and made no effort to explain her lack of compliance 4: holding that the bias reasonable rules for the normal ineffective assistance claim do not apply where facts demonstrating an attorneys ineffectiveness are not plain on the face of the administrative record


Input: to the Guidelines defines sophisticated means as “especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.” U.S.S.G. § 2Bl.l(b)(9)(C), n. 8. Here, the record shows that Regensberg conducted a complex and sophisticated scheme, including the creation of fraudulent loan documents, detailed reporting of fake earnings, use of Ponzi scheme payments to lull his investors, and alteration of an account statement to make it appear as if he had not lost his investors’ money. See United States v. Jackson, 346 F.3d 22, 25 (2d Cir.2003) (“[Ejven if each step in the scheme was not elaborate, the total scheme was sophisticated in the way all the steps were linked together....”); United States v. Lewis, 93 F.3d 1075, 1083 (2d Cir.1996) (<HOLDING>). As in Lewis, Regensberg’s offense conduct, Holdings: 0: holding that the tax was indirect even though the recipient could not shift the tax to others 1: holding that state legislature should determine whether to cure discriminatory tax by enforcing tax as to all or forgiving tax in its entirety 2: holding that state and city tax evasion considered relevant conduct under conviction for federal tax evasion 3: holding that failure to make any tax payment despite having resources sufficient to pay all or a substantial portion of tax liability constitutes evasion 4: holding in tax case that the sophisticated means enhancement applied even when each step in the planned tax evasion was simple because when viewed together the steps comprised a plan more complex than merely filling out a false tax return


Input: and her statements were further corroborated by her mother [and other witnesses].”). 15 Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474, 475 (1) (722 SE2d 84) (2011) (punctuation omitted); see also OCGA§ 15-12-134. 16 Wood v. B &S Enters., Inc., 314 Ga. App. 128, 133 (4) (723 SE2d 443) (2012) (punctuation omitted). 17 Harper, 313 Ga. App. at 475 (1) (punctuation o 879, 884 (3) (694 SE2d 707) (2010) (“It is well settled that the permissible range of the state’s closing argument is very wide.”). 23 Id. (punctuation omitted). 24 Arrington v. State, 286 Ga. 335, 346 (16) (c) (687 SE2d 438) (2009). 25 The examining physician testified it is not unusual to observe a lack of injuries when oral sodomy and digital penetration are alleged. 26 See Arrington, 286 Ga. at 346 (16) (c) (<HOLDING>). 27 Pearson v. State, 277 Ga. 813, 815 (3) Holdings: 0: holding that the district court correctly instructed the jury that there had to be a substantial similarity between the indictment and the proof in order to find the defendant guilty 1: holding that defendants claim that state engaged in burdenshifting was without merit when state argued that defendant had not rebutted evidence and trial court instructed jury as to burden of proof 2: holding that the trial court correctly instructed the jury that the defendant had to establish by evidence that outweighed the evidence against him that he lacked the capacity to form specific intent 3: holding that a challenged jury instruction did not impermissibly shift the burden of proof when the trial court elsewhere instructed the jury that the state must prove its case beyond a reasonable doubt 4: 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


Input: substantial rights were not affected. See Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1423, 1433 n. 4, 173 L.Ed.2d 266 (2009) (noting that where the affected rights relate to sentencing, the outcome a defendant must show to have been affected is his sentence). Therefore, the district court did not err by finding that the government did not breach the plea agreement, and we affirm. AFFIRMED. 1 . Melendez-Baez also mentions that the district court abused its discretion by denying his motions to continue his sentencing hearing or to permit him to withdraw his guilty plea. However, because Melendez-Baez failed to devote a discrete section of his brief addressing these arguments, he has abandoned them on appeal. United States v. Jernigan, 341 F.3d 1273, 1284 n. 8 (11th Cir.2003) Holdings: 0: holding an issue abandoned in a counseled case where although the defendant made passing references to issues in his brief he did not devote a discrete section of his brief to the argument and the references were undertaken as background to claims that he had expressly advanced 1: holding that issues are deemed abandoned when the brief only makes a passing references to an issue 2: holding that petitioner abandoned issues and claims not sufficiently raised in his brief 3: holding that the appellant abandoned an issue to which he only made passing references 4: holding in counseled case that listed issue was abandoned where it was not discussed in the argument portion of the brief


Input: partially closed to the public. They argue further that the denial of their 10(e) motion prevents them from having a complete record to be able to brief this court on the closure issue. We disagree. As the district court correctly observed, Rule 10(e) is a mechanism by which the court can “correct omissions from or misstatements in the record for appeal.” Order at 2, Aug. 26, 2011, ECF No. 557 (citing S & E Shipping Corp. v. Chesapeake & O. Ry. Co., 678 F.2d 636, 641 (6th Cir.1982)). The Rule does not, however, “allow the court to add to the record on appeal matters that might have been but were not placed before it in the course of the proceedings.... ” United States v. Hillsberg, 812 F.2d 328, 336 (7th Cir.1986); see also Anthony v. United States, 667 F.2d 870, 875 (10th Cir.1981) (<HOLDING>). In this case, the district court denied the Holdings: 0: holding that where the appellant has failed to demonstrate error the court is not required to search the record for an error 1: holding appellants issue was rendered moot because appellant was given the opportunity to make a record in support of his motion for new trial and appellate court considered that record in disposing of only issue raised in the motion for new trial 2: holding that to grant a new trial the error must be more than harmless 3: holding that 10e motion to supplement the record must be denied where appellant knew of but failed to introduce the relevant evidence at trial because rule 10e does not grant a license to build a new record 4: holding where record fails to establish whether and how appellant presented motion for new trial to the trial court it was not timely presented


Input: did not attempt to extract promises by jurors, but was instead attempting to ascertain whether they could impose the death penalty if they found that the aggravating circumstances outweighed the mitigating circumstances. The questions were relevant to determine whether the jurors could impose the death penalty, to uncover bias or prejudice, and to assist both parties in exercising their peremptory challenges. {20} “[T]he district court has discretion in determining how voir dire should be conducted and reversal is available only where the discretion is abused.” Trujillo, 99 N.M. at 252, 657 P.2d at 108. Because this questioning did not commit jurors to return a death sentence, the trial court did not abuse its discretion by allowing the prosecutor to question 1068, 1073-74 (1988) (<HOLDING>). 4. The State’s Peremptory Challenges {21} Holdings: 0: holding the trial court abused its discretion by refusing to allow a question to prospective jurors on their feelings against recommending probation as punishment in a murder case 1: holding that the trial court did not err by refusing to ask whether prospective jurors would place a greater amount of weight upon the testimony of law enforcement officers over that of the defendants 2: holding that the trial court did not err under either the federal or north carolina constitutions by allowing the state to exercise peremptory challenges to remove potential jurors based on their qualms regarding capital punishment 3: holding that trial court did not err 4: holding that the trial court did not err by allowing the prosecution to question prospective jurors regarding their ability to announce a death sentence in an appropriate case


Input: full search of automobile incident to citation for speeding since "[n]o further evidence of excessive speeding] was going to be found” once vehicle was stopped and citation issued). 22 . Davis, 947 S.W.2d at 243. 23 . United States v. Shabazz, 993 F.2d 431, 436 (5th Cir.1993). 24 . Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 837, 160 L.Ed.2d 842 (2005). 25 . United States v. Sharpe, 470 U.S. 675, 685-86, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). 26 . Kothe, 152 S.W.3d at 64 (citing Sharpe, 470 U.S. at 685-86, 105 S.Ct. at 1575 (rejecting a per se rule that a twenty-minute detention was too long under the circumstances)). 27 . United States v. Machuca-Barrera, 261 F.3d 425, 432 (5th Cir.2001). 28 . Id.; see United States v. Sandoval, 29 F.3d 537, 542-43 (10th Cir.1994) (<HOLDING>); People v. Cox, 202 Ill.2d 462, 270 Ill.Dec. Holdings: 0: holding defendants nervousness in part presented officer with reasonable articulable suspicion of criminal activity 1: holding that prolonged detention beyond time necessary to write citation was unreasonable absent reasonable suspicion of criminal activity 2: holding detention of passenger for warrant check violated fourth amendment absent reasonable suspicion 3: holding that reasonable suspicion justifies an investigatory detention 4: holding warrant check lawful if detention not extended beyond time necessary to request license and registration and issue citation


Input: C. Defendant’s timely assertion of his right to a speedy trial ¶47. Bateman filed a demand for a speedy trial on February 3, 2010, two days after his arraignment, and 310 days after his arrest. Therefore, Bateman claims that this factor should weigh in his favor. ¶ 48. “Although it is the State’s duty to ensure that the defendant receives a speedy trial, a defendant has some responsibility to assert this right.” Taylor, 672 So.2d at 1261. “[F]ailure to assert this right will make it difficult for a defendant to prove that he was denied a speedy trial.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. This Court has held that this factor weighs against a defendant who waits a significant amount of time after arrest to demand a speedy trial. C.f., Noe v. State, 616 So.2d 298, 301 (Miss.1993) (<HOLDING>); Wall v. State, 718 So.2d 1107, 1113 Holdings: 0: holding that aggressiveness with which defendant asserted his speedy trial right was lacking because he merely filed one demand for speedy trial and opposed his original counsels withdrawal 1: holding that the defendants failure to assert his right to a speedy trial until one year after his arrest weighed heavily against him under this barker factor 2: holding that defendants assertion of his right to a speedy trial two months before his trial began did not satisfy this barker factor 3: recognizing that djelay arising from hearing the defendants motions not caused by the prosecution is not weighed against the prosecution in a speedy trial analysis 4: holding that a defendants failure to assert the right to speedy trial must be weighed against him in barker analysis


Input: which was issued against Moore for possession of a controlled dangerous substance. The Warrant was apparently based on the detective’s observation of the substance in the jacket Moore had been seen wearing. Some time after Moore’s arrest, the substance found in Moore’s jacket tested negative for a controlled dangerous substance. A New Jersey Grand Jury voted no-bill against Moore for conspiracy, burglary, theft, and receiving stolen property. With regard to the second Warrant, Moore was found not guilty on a down-graded charge for failure to make lawful disposition of a controlled substance. Six months later Moore filed a complaint alleging various causes of action against several defen dants. Only Moore’s claim for malicious prosecution was allowed to proceed. The parties Cir.2007) (<HOLDING>); see also LAR 3.4. Having concluded that Holdings: 0: holding that notice of appeal was not effectively taken where appeal was filed simultaneously with timely motion for reconsideration because when timely motion for reconsideration is filed a notice of appeal filed prior to disposition of the motion to reconsider has no effect 1: holding the court lacked jurisdiction where the defendant failed to file a notice of appeal on the attorneys fee issue because a supplemental notice of appeal is required for us to have jurisdiction over an attorneys fees issue that becomes final subsequent to the initial notice of appeal 2: holding that this court has jurisdiction when the appellant has filed a docketing statement indicating an intent to appeal a particular order within the time for filing an appeal 3: holding that the appellate court had jurisdiction to hear the interlocutory appeal on a restraining order and the district court retained jurisdiction to proceed with the trial 4: holding court had jurisdiction where the appellant filed a motion for leave to proceed on appeal without prepayment of costs or fees which evidenced an intent to appeal


Input: Ill. App. 3d at 396-97. The trial court ruled that the real reason that the officers went to the defendant’s home was to look for marijuana and that the theft investigation was just a ruse. This court agreed and also agreed that the officers’ misrepresentation was so unfair that it rendered the defendant’s consent invalid. Daugherty, 161 Ill. App. 3d at 400. We stated: “Where, as here, the law enforcement officer without a warrant uses his official position of authority and falsely claims that he has legitimate police business to cond 991) (finding consent invalid where the police officers misrepresented that, if the defendant would not consent to a search of his yacht, they could seize the yacht while they obtained a search warrant); People v. Bailey, 273 Ill. App. 3d 431, 437 (1995) (<HOLDING>); People v. Cardenas, 237 Ill. App. 3d 584, Holdings: 0: holding that defendants consent was involuntary where defendant consented to search following a warrantless entry and officers explained that absent consent the officers would obtain a warrant 1: holding that officers executing a search warrant for contraband have the authority to detain the occupants of the premises while a proper search is conducted 2: holding that officers may detain the occupants of a vehicle while executing a search warrant 3: holding that it was objectively reasonable for the police to conclude that the general consent to search the respondents car included consent to search a bag within that car 4: holding that consent was invalid where the defendant initially refused request for search and officers made unsupportable legal threat to detain the defendants bag


Input: solicitation. Even an unsophisticated consumer would understand that no call is placed unless the caller wishes to transmit a message, and the adjective “important” conveys no substantive information about that message. See Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1055 (8th Cir.2002) (applying an objective “unsophisticated consumer test” when determining whether a debt collector’s practices are deceptive or misleading in violation of the FDCPA). The Court concludes that the messages left by JCC on Zortman’s voice-mail do not constitute “communications” with a person other than the consumer. ■ The FDCPA recognizes that debt collection is a legitimate commercial activity. See 15 U.S.C. § 1692(e); Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 318-19 (8th Cir.2004) (<HOLDING>). The Act further recognizes that debt Holdings: 0: holding that a claim for violation of the fair debt collection practices act is not a personal injury tort claim 1: holding that a debt collectors filing of a lawsuit on a debt that appears to be timebarred  is an unfair and unconscionable means of collecting the debt 2: recognizing that part of the purpose of the act is to prevent competitively disadvantaging debt collectors who do not engage in abusive practices 3: holding that debt collectors have no obligation to warn a consumer that her debt may increase over time 4: holding that the name under which a debt collector is licensed to do business is the debt collectors true name for purposes of the fdcpa


Input: that Qiu failed to demonstrate his eligibility for withholding of removal to the extent his claim was based on his ex-wife’s forced abortion. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 306 (2d Cir.2007) (en banc) (providing that any alleged persecution must be “personally experienced” if it is to form the basis of relief). Qiu has not alleged that he engaged in any form of resistance that would render him eligible for relief. See Matter of S-L-L-, 24 I. & N. Dec. 1, 10 (BIA 2006). Nor did the agency err by concluding that because Qiu is unmarried, any claim that he would face future persecution on account of possible future violations of the family planning policy would be too speculative to merit relief. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (<HOLDING>). B. Falun Gong The agency also reasonably Holdings: 0: holding that in the absence of solid support in the record for an applicants assertion that she would be persecuted the bia did not err in denying asylum because her fear was speculative at best 1: holding that absent solid support in the record for the petitioners assertion that he would be subjected to persecution his fear was speculative at best 2: holding that in the absence of solid support in the record for an applicants assertion that he will be persecuted his fear is speculative at best 3: holding that a fear of future persecution is not objectively reasonable if it lacks solid support in the record and is merely speculative at best 4: holding that absent solid support in the record that a fear is objectively reasonable a claim of future persecution is speculative at best


Input: Morse v. Ripken, 707 So.2d 921, 922 (Fla. 4th DCA 1998). The law, however, distinguishes between pure expressions of opinion, which are constitutionally protected, and mixed expressions of opinion, which, like factual statements, are not. Pure opinion occurs when the defendant makes a comment or states an opinion based on facts which are set forth in the a ion is based are stated in the article, but those “facts” are either incomplete or incorrect, or the speaker’s assessment of them is erroneous, the statement may imply a false assertion of fact. In that event, the statement is not protected as pure opinion. Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); see also Anson v. Paxson Commc’ns Corp., 736 So.2d 1209, 1211 (Fla. 4th DCA 1999) (<HOLDING>). Whether a statement is one of fact or one of Holdings: 0: holding that false arrest and false imprisonment claim were not duplicative 1: holding that defendants who were treated to expensive dinners and offered money were not adequately induced to show that they were not predisposed 2: holding that defendants were not in control and therefore were not supervisors and not subject to liability under  1983 3: holding that all claims submitted by defendant were false because they were acquired by kickback 4: holding that false remarks on a radio talk show were not automatically shielded from liability because they were opinion


Input: circumstances are insufficient to meet the standard of reasonable and articulable suspicion that Defendant had knowingly hired or offered to hire his passenger to engage in a sexual act. Were we to hold otherwise, police officers would have carte blanche based on suspicion of solicitation of a prostitute to stop any vehicle late at night whenever he saw a driver and a known prostitute in the vehicle, to require the driver to exit the vehicle, and to question the driver and the passenger regarding their relationship. That conduct, no different than the conduct in the present ease, is tantamount to a seizure of a driver based on the mere presence of a passenger known to have committed a past criminal act. Cf. State v. Affsprung, 2004-NMCA-038, ¶¶4, 20-21, 135 N.M. 306, 87 P.3d 1088 (<HOLDING>); State v. Jones, 114 N.M. 147, 151, 835 P.2d Holdings: 0: holding that an officers request of a passenger who was present solely by virtue of the coincidence he was a passenger for the passengers identification just because the officer wanted to know who he was dealing with for safety purposes constituted an unlawful detention 1: holding that police officer was not justified in detaining a passenger who exited and began to walk away from a lawfully stopped vehicle absent an articulated reason as to why it was necessary to detain the passenger for the officers safety 2: holding asking passenger for identification not improper 3: holding an officer may order a passenger to get out of a car during a traffic stop and may frisk a passenger for weapons if the officer reasonably suspects the passenger is armed and dangerous 4: holding officers request for passengers identification not unreasonable although unrelated to reason for stop where it did not prolong detention and passenger was under no obligation to answer


Input: Second, based on the Plan documents and the defendant’s conduct, it appears that the Pension Board actually had the authority to determine issues relating to credited service, which forms the basis of this dispute. Third, as explained in more detail below, GM already has had the opportunity to litigate the question whether the plaintiff voluntarily walked away from his job in October 1978 when it contested — and lost — the plaintiffs worker’s compensation claim. Therefore, pursuing that same issue through several internal and administrative procedures would serve no useful purpose. It is true that many courts insist on strict adherence to the administrative procedures set forth under a particular plan, see, e.g., Phipps v. Metro. Life Ins. Co., 625 F.Supp. 1038 (S.D.Ohio 1985) (<HOLDING>); how ever, compliance with all administrative Holdings: 0: holding that employee could not sue due to failure to exhaust administrative remedies even though the employees request for internal review had become bogged down due to parties inability to jointly agree on a doctor to perform another evaluation 1: holding that claims not presented to the ij and bia should be dismissed for failure to exhaust administrative remedies 2: holding that partys failure to file a timely internal administrative appeal as required by regulations of the department of agriculture constituted failure to exhaust administrative remedies and precluded judicial action 3: holding that plaintiff could not look to the courts for relief because he did not exhaust his administrative remedies under the adea 4: holding that failure to take available appeal to board of immigration appeals constitutes failure to exhaust administrative remedies and deprives the court of appeals of jurisdiction to review


Input: Beathard, 767 S.W.2d at 428; Losada v. S mant, Baccus, was indisputably acting covertly on behalf of law enforcement. He was cooperating in the hopes of completing enough “case credits” to have his charges dismissed. Accordingly, to determine the sufficiency of the corroboration of the informant, we must eliminate all of his testimony and determine whether there is other evidence that tends to connect Appellant to the offense of possession with intent to deliver. In Cantelon, an officer testified that the informant met the defendant at an agreed upon time and place, that he searched the informant, and that he watched as the informant, carrying a specific amount of cash and an audio recorder, met with the defendant and then returned without the cash, carryi Amarillo 2004, pet. ref'd) (<HOLDING>); Tave v. State, No. 2-02-449-CR, 2004 WL Holdings: 0: holding that an officers reasonable belief that he had witnessed a handtohand drug transaction helped provide a reasonable suspicion to make an investigatory stop of defendants vehicle 1: holding testimony of officer and narcotics investigator who both witnessed drug transaction coupled with audio recording of transaction constituted sufficient corroboration 2: holding that a fiduciary who receives consideration in connection with a transaction involving plan assets violated section 406b and a nonfiduciary who facilitated that transaction could be liable 3: holding that probable cause existed when trained narcotics officers observed what they believed to be a drug transaction 4: recognizing step transaction doctrine whereby courts must consider all steps of transaction in light of entire transaction so that substance of transaction will control over form of each step


Input: destruction, impairment or loss of use of any common element; (E) Matters relating to or affecting the units or interests of the unit owners including but not limited to damages, destruction, impairment or loss of use of a unit or portion thereof, if: (i) Resulting from a nuisance or a defect in or damage to a common element; or (ii) Required to facilitate repair 'to any common elements; and (F)Any other matter to which the association has standing under law or pursuant to the declaration bylaws or any articles of incorporation. Or.Rev.Stat. § 100.405(4)(e). As defined in the statute, “common elements” include the hot and cold water systems. See Or. Rev.Stat. § 100.005(16); see also Ass’n of Unit Owners of Bridgeview Condos. v. Dunning, 187 Or.App. 595, 612-13, 69 P.3d 788 (2003) (<HOLDING>). Thus, Plaintiff has statutory standing to sue Holdings: 0: holding that employers have standing to sue 1: holding that when a complaint alleges defects involving common elements a home owners association has standing to sue for damage to noncommon elements as well 2: holding elements of rescission are 1 3: holding the homeowners association had standing to sue under the theory of promissory estoppel 4: holding that plaintiffs lacked standing to sue


Input: (orig. proceeding). A trial court abuses its discretion if it incorrectly interprets or improperly applies the law. In re Dep’t of Family & Protective Services., 273 S.W.3d 637, 642-43 (Tex.2009) (orig. proceeding); Walker, 827 S.W.2d at 840. Absent extraordinary circumstances, mandamus will not issue unless relator lacks an adequate remedy by appeal. In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 210-11 (Tex.2004) (orig. proceeding) (citing Walker, 827 S.W.2d at 839). Whether a clear abuse of discretion can be adequately remedied by appeal depends on a careful analysis of costs and benefits of interlocutory review. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex.2008) (orig. proceeding). As this balance depends heavily on circumstances, it Worth 2009, orig. proceeding) (<HOLDING>); In re Garza, 153 S.W.3d 97, 100 (Tex.App.-San Holdings: 0: holding that mandamus is appropriate to challenge temporary orders because they are not subject to interlocutory appeal 1: holding same as to the filing of a notice of an interlocutory appeal 2: holding that mandamus was appropriate remedy because temporary order granting visitation is not appealable 3: recognizing plenary power of district court to alter interlocutory orders 4: holding that mandamus is appropriate remedy because temporary order granting visitation is not appealable


Input: placing other pedicle screws in those same patients, such information would demonstrate “knowledge” of how to do the surgery, but a lack of competence or care in the performance of the surgery. Plaintiffs’ desire to introduce such other acts evidence ran more to showing lack of competence or care — that is, malpractice— with respect to other patients. From such evidence, the jury then could infer that Dr. Callahan had a propensity to commit malpractice by misplacing pedicle screws and thus may or perhaps must have committed similar malpractice in the surgery to Mr. Bair. However, Rule 404(b) bars the use of evidence of other alleged wrongs to show, circumstantially, action in conformity therewith. Thus, the legitimate probative value of the p App. 626, 607 N.W.2d 100, 105-06 (1999) (<HOLDING>); Jones v. Tranisi, 212 Neb. 843, 326 N.W.2d Holdings: 0: holding that it is within the discretion of the trial judge to sustain the states objection where questions to a witness go to his understanding of the law concerning parole and call for the legal knowledge of a lay witness 1: holding that promises made by the prosecution to a witness in exchange for that witness testimony relate directly to the credibility of the witness 2: holding that mistrial was warranted for trial court allowing questions concerning prior malpractice lawsuits against witness because evidence of prior malpractice actions against a witness is not relevant to the witness competency or knowledge 3: holding that trial court properly barred certain questions about witness who was in federal witness protection program 4: holding that the trial courts admonition of a witness even though detailed and strongly stated did not coerce the witness because the court did not threaten or badger the witness and the court provided the witness with her own counsel to ensure that the decision was voluntary


Input: an attorney knowingly misappropriated his or her client’s funds. In re Barlow, 140 N.J. 191, 196, 657 A.2d 1197 (1995). Respondent is correct that we have held that shoddy recordkeeping alone does not suffice for a finding of knowing misappropriation. In re Konopka, 126 N.J. 225, 228, 596 A.2d 733 (1991); In re Librizzi, 117 N.J. 481, 491-92, 569 A.2d 257 (1990); and In re Gallo, 117 N.J. 365, 373, 568 A.2d 522 (1989). In In re Fleischer, 102 N.J. 440, 447, 508 A.2d 1115 (1986), however, we held that although poor accounting does not establish a knowing misappropriation, poor accounting is not a Wilson defense if evidence indicates knowing misappropriation. See also In re Skevin, 104 N.J. 476, 486, 517 A.2d 852 (1986), cert. denied, 481 U.S. 1028, 107 S.Ct. 1954, 95 L.Ed.2d 526 (1987) (<HOLDING>) (citations omitted); In re Irizarry, 141 N.J. Holdings: 0: holding that knowledge of the patent is required for willful infringement 1: recognizing that willful blindness is equivalent to actual knowledge under the lanham act 2: holding that a knowing misappropriation may be established by evidence that clearly and convincingly demonstrates that respondent knew the invasion was a likely result of his conduct and that  willful blindness satisfies the requirement of knowledge 3: holding that constructive knowledge satisfies the reason to know standard 4: holding that the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law


Input: authorizing the disclosure of grand jury documents and information to investigators and data analysts of the Insurance Fraud Bureau of Massachusetts (“IFB”). The IFB is a quasi-governmental agency created by statute to prevent and investigate fraudulent insurance transactions and composed of two voluntary private associations of insurance carriers. See United States v. Pimental, 199 F.R.D. 28, 29-30 (D.Mass.2001) (describing make up and functions of the IFB); accord In Re Grand Jury Proceedings, 158 F.Supp.2d at 98-99 (same); Commonwealth v. Ellis, 429 Mass. 362, 708 N.E.2d 644, 646-647 (1999) (same); see In Re Justices of the Superior Court, 218 F.3d 11, 13 (1st Cir.2000) (referring to IFB as “quasi-governmental entity”); United States v. Pimental, 201 F.R.D. 24, 26 (D.Mass.2001) (<HOLDING>). The government requested court authorization Holdings: 0: holding that a federal regulation did not create privity of contract between the plaintiff and the government 1: holding the fourteenth amendment does not apply to the actions of the federal government 2: recognizing that federal government did not fund ifb 3: holding that the county government not the federal government was liable for the taking of an air easement over plaintiffs property even though the airport was funded in part by a federal grant based on compliance with federal regulations 4: recognizing that stateimposed restrictions upon property may be attributed to the federal government for purposes of a takings analysis where the state officials acted as agents of the federal government or pursuant to federal authority


Input: retaliated against. Accordingly, Texas Tech and TTUHSC’s 12(b)(1) motion is DENIED. A State Must be a “Person” Within the Meaning of the False Claims Act Having addressed the issue of whether Texas Tech and TTUHSC are immune from suit because of their status as state institutions, and having found that they are not entitled to sovereign immunity, the court turns now to unraveling the mystery of what is a “person” for purposes of the False Claims Act. The False Claims Act does not define the word person. See 31 U.S.C. § 3729. Ordinarily, “ ‘in common usage, the term “person” does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.’ ” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989) (<HOLDING>)(quoting Wilson v. Omaha Indian Tribe, 442 U.S. Holdings: 0: holding that a state is not a person under 42 usc  1983 1: holding that 42 usc  1983 does not provide a remedy for flsa violations 2: holding that in actions brought under 42 usc  1983 federal courts apply the states statute of limitation for personal injury 3: recognizing that title iii enforcement statute 42 usc  12188 which incorporates the remedies of 42 usc  2000a3a does not include money damages 4: holding that person in 42 usc  1983 does not include states


Input: seized motorist for the short period of time that it typically takes to locate and produce vehicle registration or ownership papers (even if the papers are contained within a vehicle being towed and thus not within immediate reach) is a relatively slight intrusion on Fourth Amendment interests. Consequently, in assessing whether, as of 8:02 p.m., the facts gave Rugen “a particularized and objective basis for suspecting [Hornbecker] of criminal activity,” Ornelas, 517 U.S. at 696, 116 S.Ct. 1657 (describing the “reasonable suspicion” required to justify a Terry stop) (citation and internal quotation marks omitted), we are somewhat less demanding than we would be if we were evaluating the lawfulness of a Terry stop that resembled a full, custodial arrest, see, e.g., Chhien, 266 F.3d at 6 (<HOLDING>); Stanley, 915 F.2d at 55 (similar); cf. United Holdings: 0: holding that the encounter between an officer and the defendant did not rise to the level of a terry stop until the defendant gave the officer his license and the officer informed the defendant that he was going to be given a patdown 1: recognizing that the inquiry into whether the facts adequately supported a terry stop is informed by the nature and quality of the intrusion 2: holding that an investigatory stop must be supported by specific and articulable facts which taken together with rational inferences from those facts reasonably warrant that intrusion 3: holding that for a terry stop to be considered valid from its inception the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts reasonably warrant that intrusion  quoting terry 392 us at 21 88 sct at 1880 4: holding that while nervousness may be considered as part of the totality of circumstances nervousness standing alone was insufficient to expand a terry stop into an inquiry into drug activity


Input: of [the stay put provision, Congress] unequivocally,” intended to “strip schools of the unilateral authority they had traditionally employed” and that the provision “means what it says”). The meaning of the phrase “current educational placement,” never expressly defined in the statute, is at the heart of the dispute between the parties in the case at bar. In Burlington, the Court observed that an administrative decision in favor of the parents “would seem to constitute agreement by the State to the change of placement,” 471 U.S. at 372, 105 S.Ct. 1996; in other words, the decision would seem to constitute a “current educational placement.” Other courts have followed this understanding of the relevant statutes. See, e. g., Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir.1996) (<HOLDING>); Murphy v. Arlington Cent. Sch. Dist. Bd. of Holdings: 0: holding that in the absence of an intervening supreme court decision only the en banc court may overrule a decision by a threejudge panel 1: holding that one panel of this court is bound by the precedent of an earlier panel absent en banc reconsideration or a superseding contrary decision of the supreme court 2: holding that the decision of the supreme court in burlington established that a ruling by the education appeals panel in favor of the parents position constitutes agreement for purposes of the pendent placement provision 3: holding that a panel of the court of appeals is bound by a prior decision of another panel of the same court addressing the same question but in a different case unless overturned by an intervening decision from a higher court 4: holding that where a panel of the court of appeals has decided the same issue albeit in a different case a subsequent panel of the same court is bound by that precedent unless it has been overturned by a higher court


Input: 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). However, the same immunity does not apply to prosecutor’s actions that are administrative and investigative. Harlow v. Fitzgerald, 457 U.S. 800, 811 n. 16, 102 S.Ct. 2727, 2734 n. 16, 73 L.Ed.2d 396 (1982). Similarly, officials that initiate and prosecute agency enforcement measures subject to agency adjudication are entitled to absolute immunity. Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 2911-12, 57 L.Ed.2d 895 (1978). It is the official’s function, not role or status, that determines whether absolute immunity applies. Id. at 511-13, 98 S.Ct. at 2913-14. The Third Circuit has not addressed the issue of absolute immunity for child welfare work L.Ed.2d 719 (1991) and Austin v. Borel, 830 F.2d 1356 (5th Cir.1987) (<HOLDING>). In 1994, the Supreme Court denied a petition Holdings: 0: holding that while a witness and prosecutor were protected by absolute immunity for their participation in judicial proceedings they were not entitled to absolute immunity on a  1983 claim that they conspired to present false testimony 1: holding by a 21 vote that an ohio probate judge was entitled to absolute immunity for filing a criminal complaint 2: holding that social services attorneys were entitled to absolute immunity for actions related to the prosecution of child neglect and delinquency proceedings 3: holding that social worker was not entitled to absolute immunity for filing complaint becausejudicial proceedings were initiated by district attorney who filed petition for adjudication 4: holding that a judge was not entitled to absolute immunity for firing an employee


Input: the court to rely only upon the fact of conviction and the definition of the prior offense. Kirksey, 138 F.3d at 124. If the definition of the prior offense is ambiguous, however, the court must look beyond the definition to the charging document and to any statements incorporated into that document. Kirksey, 138 F.3d at 124-26. In conducting its ACCA assessment, a court may also consult the jury instructions in the earlier case to determine whether the erized Wardrick’s 1988 conviction for resisting arrest as a violent felony. The act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physical injury to the officer and others. See United States v. James, 337 F.3d 387 (4th Cir.2003) (<HOLDING>). Accordingly, Wardrick’s conviction for Holdings: 0: holding that failure to stop for a blue light is a violent felony under armed career criminal statute because it involves conduct that presents a serious potential risk of physical injury to another 1: holding massachusetts conviction for larceny from the person constitutes violent felony under the residual clause of the acca 2: holding that to the extent a south carolina violation for failing to stop for a blue light required only negligent conduct it is not a violent felony under begay 3: holding that escape is categorically a violent felony under the acca 4: holding south carolina conviction for failure to stop for a blue light to be violent felony under acca because prohibited conduct creates potential for confrontation and violence


Input: Master, supra, 748 F.Supp. at 392 (“The court notes that there is no statutory language in the CERCLA statute which supports such an argument”). Certain of the courts that have held governmental agency involvement can satisfy the NCP’s public comment requirement appear to have relied on the fact that the agency’s process itself involved opportunities for public input and involvement. See Estes v. Scotsman Group, Inc., 16 F.Supp.2d 988, 991 (C.D.Ill.1998) (“Cases allowing public agency involvement to be substituted for public comment have only allowed such a substitution if the public is provided an ample opportunity for comment and there is substantial involvement throughout the cleanup by a state agency”); Amcast Industrial Corp. v. Detrex Corp., 779 F.Supp. 1519, 1537 (N.D.Ind.1991) (<HOLDING>), rev’d. in part on other grounds, 2 F.3d 746 Holdings: 0: recognizing that public utilities affect the public interest in that they render essential public services to a large number of the general public 1: holding that the ncp public participation requirement was fulfilled because the indiana department of environmental management gave public notice and received public comments before issuing an npdes permit for the cleanup even if it did not hold a public hearing 2: holding that public meeting did not satisfy public participation requirement because public did not receive adequate notice 3: holding that significant involvement of government agency charged with protecting public environmental interest satisfies public participation requirement in certain circumstances 4: holding that significant state involvement satisfies public participation requirement because it serves the identical purpose that the public notice provision seeks to effectuate


Input: the Court noted that neither § 841(b)(1) nor the Sentencing Guide lines defined the words “mixture” or “substance.” Id. at 461-62, 111 S.Ct. at 1925-26. The Court therefore applied the ordinary dictionary meaning of the terms and concluded that the combination of the pure LSD and blotter paper is a “mixture” within the meaning of the statute. Id. at 462, 111 S.Ct. at 1925. Amendment 488 does not contradict Chapman because the Sentencing Commission has the authority to review the work of the courts and revise the Guidelines by adopting an interpretation of a particular guideline in conflict with prior judicial constructions of that guideline. See Stinson, — U.S. at —, 113 S.Ct. at 1919; see also Braxton v. United States, 500 U.S. 344, 348, 111 S.Ct. 1854, 1857, 114 L.Ed.2d 385 (1991) (<HOLDING>). At the time of the Chapman holding, the Holdings: 0: holding that the mere mandatory application of the guidelines  the district courts belief that it was required to impose a guidelines sentence  constitutes error 1: holding the state must prove that at the time of the homicide the defendant was engaged in the commission of the felony 2: recognizing that congress has the power to completely divest the courts of their sentencing discretion and that congress granted broad authority to the sentencing commission guided by specific goals and principles 3: holding that congress necessarily contemplated that the commission would review the work of the courts and revise the guidelines 4: holding that under the fsia congress contemplated waivers of a specific and explicit nature


Input: search Baldón, either predicated on individual suspicion, background information particular to Baldón that would have been known to the parole officer, or the general mission of parole. Thus, the only issue we address on appeal is whether a parole agreement containing a consent-to-search clause renders suspicionless and warrant-less searches of parolees reasonable under the search and seizure clause of the Iowa Constitution. Additionally, we only analyze the consent issue in this case on state constitutional law grounds. The United States Supreme Court has not yet directly weighed in on the issue to direct an outcome under the Fourth Amendment or to aid us in our resolution under our state constitution. See Samson v. California, 547 U.S. 843, 852 n. 3, 126 S.Ct. 2193, 2199 n. pp.1976) (<HOLDING>). On the other hand, only a handful of courts Holdings: 0: holding that consent was freely and voluntarily given despite officers advisement that the police could get a search warrant if consent was not given 1: 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 2: holding probationers acceptance of search provision of parole agreement did not constitute freely and voluntarily given consent 3: holding released offenders do not voluntarily consent to all conditions of parole 4: 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


Input: an inmate was injured by a foreign object in the food. His sole allegation that a security guard knew of an incident when pebbles were found in prison beans does not support a finding that Atkinson knowingly disregarded a substantial risk that an inmate would bite into or ingest a foreign object. The security guard did not indicate that Atkinson was aware of the pebbles. In a § 1983 suit, “[a]bsent vicarious liability, each Government official ... is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Because Green was unable upon remand to remedy the insufficient factual allegations against Atkinson, the district court’s dis missal of the claim was proper. See id.; George v. King, 837 F.2d 705, 707 (5th Cir.1988) (<HOLDING>). Green also addresses the merits of new claims Holdings: 0: holding extraneous offenses of murder by cyanide poisoning relevant to charge of murder by chloroform poisoning 1: holding counsels decision to open after the states caseinchief did not amount to a constitutional violation 2: recognizing cause of action against federal officials for violation of constitutional rights 3: holding single incident of food poisoning did not amount to a violation of prisoners constitutional rights 4: holding that violation of state law was not a per se constitutional violation


Input: By implicating the maxim expressio unius est exclusio alterius, Protégé asks this court to look beyond the four corners of the 2007 Employment Agreement to the terms of the 2004 Employment Agreement and to conclude that the exclusion of a provision prohibiting Protégé from reducing Colameta’s salary or changing his job duties gave Protégé the authority to do both. The 2007 Employment Agreement, however, is unambiguous; indeed, neither Protégé nor the defendants argue to the contrary. The court therefore cannot use the 2004 Employment Agreement to assist in the interpretation of the 2007 Employment Agreement, whether through application of the maxim of expressio unius est exclusio alterius or otherwise. See McAdams v. Massachusetts Mut. Life Ins. Co., 391 F.3d 287, 300 (1st Cir. 2004) (<HOLDING>). B. Protégé’s Breach of the 2007 Employment Holdings: 0: holding that limitation of liability clause was unambiguous 1: holding erisa plan interpretation is simply one of contract interpretation 2: holding that principle of expressio unius est exclusio alterius has no place in interpretation of unambiguous contract 3: holding that the interpretation of an unambiguous contract is a question of law 4: holding that when a contract is unambiguous the court will enforce the plain meaning of the contract as the intention of the parties


Input: of habeas corpus, the Supreme Court noted that a district judge in an extradition proceeding is acting pursuant to special powers and not any part of the judicial power of the United States. Id. at 120, 14 How. 103 (citing to Ferreira, 54 U.S. (13 How.) at 48). Modern courts continue to rely on the concepts expressed in Ferreira and Kaine in determining that 18 U.S.C. § 3184 does not violate the principle of separation of powers. See In re Extradition of Kirby, 106 F.3d 855, 864 n. 11 (9th Cir.1996) (noting that 18 U.S.C. § 3184 does not violate principles of separation of powers because a long line of precedents hold that a district judge acting pursuant to Section 3184 does not exercise any part of the judicial power of the United States); Lo Duca v. U.S., 93 F.3d 1100 (2nd Cir.1996) (<HOLDING>). There are additional reasons why a court may Holdings: 0: recognizing that the judicial rewriting of a statute would violate the separation of powers doctrine 1: recognizing separation of powers doctrine 2: recognizing that individual judges rather than the federal courts are subject to 18 usc  3184 that judges are thus functioning as commissioners under  3184 rather than exercising powers under article iii and that the statute thus does not violate the separation of powers doctrine 3: holding ifrp is neither a usurpation of sentencing courts article iii power nor violation of separation of powers doctrine 4: holding that 18 usc  3559c did not violate separation of powers doctrine or ex post facto clause


Input: to the question presented. Where the error is prejudicial, the defendant is entitled to have his motion reconsidered and passed upon as a discretionary matter.’ ” Johnson, 346 N.C. at 124, 484 S.E.2d at 376 (quoting State v. Lang, 301 N.C. 508, 510, 272 S.E.2d 123, 125 (1980)); see also Barrow, 350 N.C. at 646, 517 S.E.2d at 378. Here, the trial court instructed the jury, without objection from the parties, as follows: As to the second question, members of the jury, it is your duty to recall the evidence as the evidence was presented. So you may retire and resume your deliberation. From these instructions, we are convinced that the trial judge did not impermissibly deny the request based solely on the unavailability of the transcript. See Barrow, 350 N.C. at 648, 517 S.E.2d at 378-79 (<HOLDING>); State v. Ashe, 314 N.C. 28, 35, 331 S.E.2d Holdings: 0: holding that the trial court did not abuse its discretion by refusing to accept the defendants guilty pleas to two counts of the indictment and stating that even if the trial court erred the error had not prejudiced the defendant because he was found guilty by the jury of the charges to which he intended to plead and the evidence of the other crimes would have been admissible in the trial for the first degree murder charge 1: holding that the trial court failed to exercise its discretion in merely stating that the request could not be granted because there was no transcript at this point 2: holding that trial court did not abuse its discretion in admitting a transcript of a recording even though defense counsel did not stipulate to its accuracy 3: holding that appellant failed to preserve error because it did not present appellate complaint to trial court 4: holding that the trial court failed to exercise its discretion by stating that it did not have the ability to present the transcript to the jury


Input: concludes that Syracuse is not entitled to any damages related to the removal of the certification tags. La. Civ.Code Ann. art. 2002 (a contracting party “must make reasonable efforts to mitigate” damages caused by another’s breach of contract). B. Orion’s Breach of Contract Claim Against Syracuse 1. Bar to Recovery of Damages by Syracuse The core of Orion’s affirmative defenses is that Syracuse cannot recover on his claim because he breached the Agreement while Orion fully performed. See, e.g., B.F. Edington Drilling Co. v. Yearwood, 239 La. 303, 118 So.2d 419, 422 (1960) (concluding that party that installed well could not obtain payment of the contract price because the well did not meet the contract specifications); City of Houma v. C-Well Ltd., 515 So.2d 646, 648 (La.Ct.App.1987) (<HOLDING>); Copeland v. Drury, 494 So.2d 1189, 1193 Holdings: 0: holding that absent an independent tort a plaintiff alleging a breach of contract may only seek to recover the damages flowing from the breach 1: holding that party may not recover damages for breach of contract where its own bad faith caused the other partys breach 2: holding that a party cannot claim damages for breach of contract unless he has shown his full compliance with the contract and is not acting in bad faith 3: holding party in breach could not maintain suit for breach of contract 4: recognizing that where a plaintiff failed to perform because of the defendants breach the plaintiff could recover damages caused by the defendants breach


Input: such decisions. 429 A.2d at 781. The court in City of Scranton, further noted that Section 1 of Act 111, 48 P.S. § 217.1, limits the issues that are subject to mandatory bargaining and that Act 111 “does not remove all regulation [of policemen and firemen] from the scope of a municipality’s managerial decision-making, particularly any regulation which might be considered ‘essential for the proper and efficient functioning of a police [and fire] force.’” Id. [quoting Sharon v. Rose of Sharon Lodge, No. S, 11 Pa.Cmwlth. 277, 315 A.2d 355, 358 (1973)]. Accordingly, this court concluded in City of Scranton that Act 111 does not remove from the employer’s managerial authority the total number of firemen on a force. Compare Appeal of City of Erie, 74 Pa. Cmwlth. 245, 459 A.2d 1320 (1983) (<HOLDING>). Subsequently, in City of Philadelphia v. Holdings: 0: holding that arbitration panel did not err in concluding that the number of firemen per rig constitutes a work condition rather than a matter of managerial prerogative and therefore was a proper subject of bargaining 1: holding that the district court did not err by compelling individual rather than class arbitration because the relevant agreements were silent as to class arbitration 2: holding that trial court did not err 3: holding that a district court did not err in concluding that the defendant was not entitled to a downward departure due to his status as an alien subject to removal 4: holding that the number of rooms that housekeepers must clean is a mandatory subject of bargaining


Input: to confront the witnesses against him. Mississippi Rule of Evidence 901(a) provides: General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. ¶ 14. The State argues that the passports needed no authentication because they are authentic on their face. The State concedes that the passport of Robert Keys was obtained through a fraudulent application because Bob used an alias to obtain the passport. We do not agree that a fraudulently obtained passport could be considered authentic on its face for the purposes of establishing the information contained within as factual. See U.S. v. Weiss, 491 F.2d 460, 466 (2nd Cir.1974) (<HOLDING>); Gulotta v. United States, 118 F.2d 683, 685 Holdings: 0: holding that a passport is not competent evidence to prove the defendant was not in thailand absent proof by thai authorities that if the defendant had entered or exited thailand an entry would have been placed on his passport 1: holding that the defendants right to presence was not violated where the defendant had been present in the courtroom while the venire members were questioned notwithstanding the fact that the defendant was absent later when his attorney made his strikes over the lunch hour because the defendant was present in the courtroom when the clerk gave the strikes effect by reading off the list of jurors who had not been stricken 2: holding that jurys verdict for the defendant in a breach of contract action did not establish the absence of breach because the jury was instructed that it could find for the defendant if it concluded that the defendant had not breached the contract or if the defendant proved an affirmative defense 3: holding that it was not error for the trial judge to refuse to admit the passport as evidence that defendant could not have been served with process in new york because she had been in hong kong the defendant offered no attestation or testimonial authentication by the hong kong authorities who had affixed the stamps on her passport 4: holding that upon award of zero damages plaintiff has failed to establish an essential part of its proof and judgment should have been entered for defendant


Input: reflected in Document 00813. The 00813 rates similarly do not prohibit a contractor’s payment of higher wages to his employees. After a dispute arose about the switch, in a letter sent to Mor-ganti, the City wrote that it would reimburse the Hobby Airport contractors and subcontractors for variances between the 00812 rate and the 00813 rate. In response to the letter, Morganti requested the difference between the rates on behalf of itself and its subcontractors, including SES. The City denied the claim. It took the position that the switch to the 00813 rate did not harm Morganti and SES because none of their employees received a wage increase due to the switch. SES’s presiden , No. 14-04-00120-CV, 2006 WL 176862, at *3 (Tex.App.-Houston [14th Dist.] Jan. 26, 2006, no pet.) (mem. op.) (<HOLDING>). 2) Analysis Here, SES maintains that it Holdings: 0: holding that plaintiffs failure to allege citizenship of first defendant did not constitute good cause for second defendants failure to timely join in removal petition 1: holding that plaintiffs failure to notify attorney of receipt of right to sue letter and failure to confirm that the attorney had received the letter did not warrant the application of equitable tolling 2: holding that defendants failure to disclose sublease did not cause breachofcontract damages because plaintiffs deal fell through for reasons independent of failure to notify plaintiff 3: holding breachofcontract claim was preempted 4: holding that plaintiffs failure to secure financing for deal caused its damages rather than any action by defendant in breach of contract claim


Input: The Commonwealth of Pennsylvania was initially made a party to this action but was subsequently removed as a party. 2 . The Depreciation Lands Museum, which is within 500 feet of the subject property, has a cemetery on its premises. 3 . The Township made only a fleeting reference to standing in its discussion of whether ASI's claims implicate an "overwhelming federal interest.” 4 . Although this regulation was passed pursuant to the ADA, the broad remedial language of the RA is similarly intended to extend relief beyond qualified individuals with disabilities. See Frederick L. v. Dep’t of Pub. Welfare of Pa., 364 F.3d 487, 491 (3d Cir.2004) (citing Helen L. v. DiDario, 46 F.3d 325, 330-32 (3d Cir.), cert. denied, 516 U.S. 813, 116 S.Ct. 64, 133 L.Ed , 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (<HOLDING>); Gwynedd Properties, Inc. v. Lower Gwynedd Holdings: 0: recognizing the ability of corporations to protect property rights in federal court 1: recognizing a corporations legal rights to confidentiality and privilege 2: holding that while a state statute granted a foreign corporation the rights and privileges enjoyed by domestic corporations it did not transform such corporations into domestic or resident corporations 3: recognizing a cause of action against a corporations directors brought by a creditor for the fraudulent misrepresentation of the corporations financial condition 4: holding that a corporations principal place of business for determining diversity jurisdiction under 28 usc  1332c1 is the nerve center meaning the corporations headquarters or the place where a corporations officers direct control and coordinate the corporations activities


Input: “[the trustee, after notice and a hearing, may ... sell ..., other than in the ordinary course of business, property of the estate.]” 11 U.S.C. § 363(b)(1) (1985). * * * If there are objections, however, the trustee must seek approval of the proposed sale from the bankruptcy court. The appropriate standard used by courts in reviewing a trustee’s recommendation has been enunciated in myriad ways. See, e.g., In re Schipper, 933 F.2d 513, 515 (7th Cir.1991) (stating that sales are an exercise of a fiduciary duty that requires an “articulated business justification”); In re Chung King, Inc., 753 F.2d 547, 549 (7th Cir.1985) (opining that the sale must result in the estate obtaining the best price possible under the circumstances); In re Apex Oil Co., 92 B.R. 847, 866 (Bankr.E.D.Mo.1988) (<HOLDING>); In re Phoenix Steel Corp., 82 B.R. 334, Holdings: 0: holding that the transaction must be fair and equitable and in good faith 1: recognizing an implied covenant of good faith and fair dealing by all parties in the performance of a contract for the sale of real estate 2: holding that the duty of good faith and fair dealing is a contractual duty 3: holding that benefiting fiduciary must show he acted in good faith and that transactions were fair and equitable 4: holding that a sale must be both fair and reasonable in price and made in good faith


Input: motion for appropriate relief was not proper because it was not made after a verdict had been reached. See State v. Handy, 326 N.C. 532, 535, 391 S.E.2d 159, 160 (1990) (motion for appropriate relief is a “post-verdict” motion); N.C.G.S. § 15A-1414(a) (1999) (motion for appropriate relief may be made “[a]fter the verdict but not more than 10 days after entry of judgment”). The Defendant’s motions, therefore, must be characterized as “pretrial” motions brought “prior to a trial that the Government had a right to prosecute and that... [Defendant was required to defend.” Sanford, 429 U.S. at 16, 50 L. Ed. 2d at 20. Accordingly, the State’s appeal of the trial court’s 14 January 2000 order is not barred by the Double Jeopardy Clause. See McGraw v. State, 688 So. 2d 764, 771 (Miss.) (<HOLDING>), cert. denied, 522 U.S. 830, 139 L. Ed. 2d 51 Holdings: 0: holding that where a court considering a rule 12b6 motion relies on matters outside the pleading the motion must be treated as a rule 56 motion for summary judgment 1: holding that the trial court did not err by granting defendants motion for summary judgment 2: holding that the trial court erred by granting the defendants motion to dismiss 3: holding that motion to dismiss cannot be treated as summary judgment 4: holding pursuant to sanford and serf ass that a defendants untimely motion for acquittal made subsequent to a jury deadlock must be treated as a pretrial motion and thus review of the trial courts judgment granting such motion is not precluded by the double jeopardy clause


Input: because appellant Arn’s application for the modification of his pretrial release conditions also was a pretrial motion providing excludable time, no violation of the Speedy Trial Act occurred. See United States v. Wirsing, 867 F.2d 1227, 1230-31 (9th Cir.1989). 2. The district court’s misreading of a single phrase in the conspiracy instruction did not constitute plain error, because the written instructions provided to the jury properly stated the requisite conspiracy elements and unanimity requirement. See United States v. Ancheta, 38 F.3d 1114, 1117 (9th Cir.1994). 3. The district court properly rejected appellants’ proffered factual impossibility instruction, as impossibility is not a defense to conspiracy or attempt. See United States v. Rodriguez, 360 F.3d 949, 957 (9th Cir.2004) (<HOLDING>). 4. The district court properly instructed the Holdings: 0: holding that the fccs orders relating to the tcpa are binding under the hobbs act 1: holding the meaning of commerce element in a different federal statute the hobbs act to be a question of law 2: holding that bribing a public official does not amount to a conspiracy with that official to extort the briber under the hobbs act 3: holding that impossibility is not a defense to attempts or conspiracy under the hobbs act 4: holding that proof of racketeering was not a separate prerequisite to criminal liability under the hobbs act


Input: his four and one-half-year sentence, not his habitual felony offender sentence. Although this is the argument that the State should have raised at Hall’s hearing on his motion to correct his sentence, the Department does not have the authority to review and reject a trial court’s specific award of credit. See Pearson v. Moore, 767 So.2d 1235, 1239 (Fla. 1st DCA 2000) (“As part of the executive branch, DOC lacks the power to adjudicate the legality of a sentence or to add or delete sentencing conditions.”); Slay v. Singletary, 676 So.2d 456, 457 (Fla. 1st DCA 1996) (en banc), aff'd, 688 So.2d 319 (Fla.1997) (“[T]he Department of Corrections lacks the authority to correct an illegal sentence or render the illegality harmless.”); Wilson v. State, 603 So.2d 93, 94 (Fla. 5th DCA 1992) (<HOLDING>). “Sentencing is a power, obligation, and Holdings: 0: holding that a party to an administrative proceeding failed to effectively obtain judicial review where the party filed a response to another partys petition rather than a separate petition 1: holding that plan amendments are a settlor rather than a trustee function 2: holding that where a statute provides for an enhanced penalty based on a defendants prior conviction the fact of conviction is a sentencing factor to be determined by the court rather than a jury 3: holding that the award of the credit is a judicial task to be accomplished at sentencing rather than an administrative function to be accomplished postsentencing 4: holding that when a defendants sentence has been set aside on appeal a trial court at resentencing may consider evidence of the defendants postsentencing rehabilitation


Input: analysis whether Kelly-Ryan at one point claimed that the policy was a marine insurance policy, because even a joint stipulation cannot cure a jurisdictional defect. See Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir.1996); see also Galt G/S v. Hapag-Lloyd AG, 60 F.3d 1370, 1373 (9th Cir.1995) (“[W]e inquire sua sponte whether admiralty or diversity jurisdiction provided the district court with an independent basis for federal subject matter jurisdiction.... ”). We thus turn to the question whether admiralty jurisdiction exists over Kelly-Ryan’s claim against Royal. Admiralty jurisdiction hinges on whether the Big Shield insurance policy with the MEL endorsement is a maritime insurance contract. See Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1, 35-36, 20 L.Ed. 90 (1870) (<HOLDING>). If the Big Shield policy is maritime, “and Holdings: 0: holding that a complaint that asserts both admiralty jurisdiction and diversity jurisdiction is not an adequate 9h designation to trigger admiralty procedures 1: holding that wrongful death actions asserted under admiralty jurisdiction lie under general maritime law for death caused by violation of maritime duties and are not limited to standards of liability created by state law 2: holding that the contract disputes act preserves admiralty jurisdiction in the federal district courts for suits arising out of maritime contracts 3: holding that admiralty jurisdiction extends to maritime insurance contracts 4: holding that courts apply substantive admiralty law to claims that sound in admiralty regardless of whether the complaint invokes diversity or admiralty jurisdiction


Input: device; a person who transcribes recorded testimony; an attorney for the government; or a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (in). Fed.R.Crim.P. 6(e)(2). The D.C. Circuit has held that Rule 6(e) qualifies as an Exemption 3 withholding statute, even though the Criminal Rules are ordinarily not labeled as such. See Senate of P.R. v. United States Dep’t of Justice, 823 F.2d 574, 582 & n. 23 (D.C.Cir.1987) (“although rules of procedure promulgated by the Supreme Court generally do not qualify as ‘statutes’ for exemption (b)(3) purposes!,] [Rule 6(e)] does so qualify because it was specifically adopted by an Act of Congress.”) (internal citation omitted). See also Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 867 (D.C.Cir.1981) (<HOLDING>). In this case, the FBI relied on Exemption 3 Holdings: 0: holding that the statute qualifies as an exemption 3 statute 1: holding that rule 6e qualifies as a statute for purposes of exemption 3 2: holding act qualifies as exemption statute under exemption 3 3: holding that  6103 qualifies as an exemption statute 4: holding that various versions of the statute qualify as an exemption 3 statute


Input: Fund, 900 F.2d 1138, 1142 (7th Cir.1990). Here, the above-factors weigh in UNUM’s favor. When UNUM’s plan administrator decided to terminate Reagan’s benefits, he had before him the following evidence to support his conclusion: (1) the fact that Dr. Kurkjian could find no objective evidence that Reagan suffered from any cardiac disease; (2) the fact that neither Dr. Kurkjian nor Dr. Laping believed that any restrictions or limitations upon Reagan’s wo agree regarding Reagan’s medical condition and ability to work, such a disagreement does not support a finding of arbitrary and capricious . In fact, reasoned differences among qualified medical experts preclude such a finding. See Smith v. Office of Civilian Health and Med. Program of Uniformed Servs., 97 F.3d 950, 959 (7th Cir.1996) (<HOLDING>); see also Ladd v. ITT Corp., 148 F.3d 753, 756 Holdings: 0: holding that an aljs own medical analysis which is contrary to medical evidence is invalid 1: holding that plaintiffs claim that medical providers did not comply with baker act was not subject to medical malpractice statutes ajlthough a medical diagnosis is necessary in order to involuntarily commit a patient the process of complying with the statute does not require medical skill or judgment 2: holding that the writ may not issue merely because a federal court finds that a state courts decision was erroneous or incorrect  3: holding that widespread disagreement among qualified medical experts over a medical issue virtually precludes a reviewing court from concluding that an agency decision that agrees with one side is arbitrary or plainly wrong even if the court finds other views more persuasive 4: holding that the plaintiffs experts were not qualified to offer a medical opinion as to the cause of death because they are not physicians nor otherwise properly qualified to offer a medical opinion