In United States v. Rich, No. 18-2268 (6th Cir. Sept. 13, 2021), the Sixth Circuit enters the circuit split about whether, in a Racketeer Influenced and Corrupt Organization Act (RICO) prosecution, the government is required “to prove the existence
Continue Reading Must the Government Prove That an “Enterprise” Presently Exists as the Object of a RICO Conspiracy? A Split Sixth Circuit Panel Enters the Fray in Biker Gang Prosecution.
Paul W. Mollica Federal Courts Blog
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Fifth Circuit Holds That Busker Has Standing to File Pre-Enforcement First Amendment Challenge to Ban on Musical Performances for Money in Public Places
In Barilla v. City of Houston, No. 20-20535 (5th Cir. Sept. 10, 2021), a Fifth Circuit panel reverses dismissal on standing grounds of a First Amendment challenge to Houston’s ordinance clamping down on “bands, musicians, singers, mimes, and other…
Continue Reading Fifth Circuit Holds That Busker Has Standing to File Pre-Enforcement First Amendment Challenge to Ban on Musical Performances for Money in Public Places
Judicial Severance of an Invalid Provision From a Statute Is Not a “Remedy” with Only Prospective Effect, Holds Sixth Circuit
In Lindenbaum v. Realgy, LLC, No. 20-4252 (6th Cir. Sept. 9, 2021), the Sixth Circuit holds that severance of an offending section of a federal statute by the U.S. Supreme Court is not a judicial “remedy” that operates only…
Continue Reading Judicial Severance of an Invalid Provision From a Statute Is Not a “Remedy” with Only Prospective Effect, Holds Sixth Circuit
Split Second Circuit Panel Holds That District Court Erred by Admitting “Opinion” Testimony that Defendant “Employed Countersurveillance Driving Techniques,” Ordering New Trial
In United States v. Cabrera, No. 19-3363 (2d Cir. Sept. 8, 2021), the panel majority holds that the jury in a criminal prosecution should not have heard officer testimony that the defendant, “unlike the ‘average drug dealer,’ appeared to…
Continue Reading Split Second Circuit Panel Holds That District Court Erred by Admitting “Opinion” Testimony that Defendant “Employed Countersurveillance Driving Techniques,” Ordering New Trial
Seventh Circuit Discusses “Nerve Center” Test for Diversity Jurisdiction as Applied to Corporate Subsidiaries
In Big Shoulders Capital LLC v. San Luis & Rio Grande Rd., No. 20-1503 (7th Cir. Sept. 3, 2021), the court remands a diversity action to determine whether the subsidiaries of a railroad – under the “nerve center” test…
Continue Reading Seventh Circuit Discusses “Nerve Center” Test for Diversity Jurisdiction as Applied to Corporate Subsidiaries
Expert Report Proffered by a Party in a Prior Case Is Not Automatically a “Party Admission” for Purposes of Fed. R. Evid. 801(d)(2)(C), Holds Fifth Circuit
In HTC Corp. v. Telefonaktiebolaget LM Ericsson, No. 19-40566 (5th Cir. Aug. 31, 2021), the Fifth Circuit affirms exclusion of an expert report from a valuation expert who the defendant had used in prior litigation, holding that the prior…
Continue Reading Expert Report Proffered by a Party in a Prior Case Is Not Automatically a “Party Admission” for Purposes of Fed. R. Evid. 801(d)(2)(C), Holds Fifth Circuit
Fourth Circuit Judge Decries Proliferation of “Advisory” Dissents from Denial of Rehearing En Banc
In Doe v. Fairfax Cnty. Sch. Bd., No. 19-2203 (4th Cir. Aug. 30, 2021) (order), denying rehearing en banc of a Title IX case involving sexual harassment, a Fourth Circuit judge calls for curtailing separate dissenting opinions that signal…
Continue Reading Fourth Circuit Judge Decries Proliferation of “Advisory” Dissents from Denial of Rehearing En Banc
Ninth Circuit Affirms Issuance of Arrest Warrant for Defendant Under Recalcitrant Witness Statute Who Failed to Respond to Paper Discovery
In Invesco High Yield Fund v. Jecklin, No. 21-15809 (9th Cir. Aug. 25, 2021), the Ninth Circuit affirms contempt sanctions against a foreign defendant under 28 U.S.C. § 1826(a), the federal recalcitrant witness statute. The statute provides that when…
Continue Reading Ninth Circuit Affirms Issuance of Arrest Warrant for Defendant Under Recalcitrant Witness Statute Who Failed to Respond to Paper Discovery
“Home State” Exception to Class Action Fairness Act Jurisdiction Does Not Apply Where the “Primary Thrust” of the Case Is Liability Against an Out-of-State Defendant, Fifth Circuit Holds
In Madison v. ADT LLC, No. 21-90028 (5th Cir. Aug. 24, 2021), the panel holds that the district court should have disregarded the nominal in-state defendant when evaluating the “home state” exception to the Class Action Fairness Act (CAFA),…
Continue Reading “Home State” Exception to Class Action Fairness Act Jurisdiction Does Not Apply Where the “Primary Thrust” of the Case Is Liability Against an Out-of-State Defendant, Fifth Circuit Holds
Eleventh Circuit Regrets Having Invented a New Burden of Proof for Fourth Amendment Exception, So It Rules En Banc to Wipe “Reasonable Probability” From Books
In United States v. Watkins, No. 18-14336 (11th Cir. Aug. 20, 2021), the en banc Eleventh Circuit unanimously overrules the “reasonable probability” standard it had used since the 1980s to evaluate claims by police under the Fourth Amendment “inevitable…
Continue Reading Eleventh Circuit Regrets Having Invented a New Burden of Proof for Fourth Amendment Exception, So It Rules En Banc to Wipe “Reasonable Probability” From Books