8th U.S. Circuit Court of Appeals Digest: Aug. 9, 2023

Administrative

Failure to Produce Records

Suspension of Pilot’s License; Mootness

Petitioner sought review of the National Transportation Safety Board’s order dismissing petitioner’s appeal of the suspension of her pilot’s license. The Federal Aviation Administration suspended petitioner’s license after she failed to produce her pilot logbooks and training records upon request. The FAA later terminated the suspension and reinstated petitioner’s license after she complied with the records request. An ALJ concluded that the suspension was reasonable. The NTSB dismissed petitioner’s administrative appeal as moot.

Where petitioner did not suffer a concrete injury in fact from a terminated license suspension, the NTSB correctly dismissed petitioner’s appeal as moot as she could not show how having the suspension on her record would jeopardize her future employment prospects.

Stras, J., concurring: “Under the latter scenario, McNaught lacked standing because the case was over before it began. If the controversy began earlier, it is now moot because there is no further relief we can give. See Sandidge v. Washington, 813 F.2d 1025, 1026 (9th Cir. 1987) (explaining that any injury was too “speculative” because the plaintiff could not connect a negative entry on his record to the potential loss of any specific job). Either way, there is no “[c]ase[]” or “[c]ontrovers[y]” for us to decide.”

Petition is dismissed.

McNaught v. Nolen (MLW No. 80327/Case No. 22-3138 – 12 pages) (U.S. Court of Appeals, 8th Circuit, Shepherd, J.) Petition for Review of an Order of the Federal Aviation Administration.

Bankruptcy

Chapter 12

Repayment Plan; Discount Rate for Deferred Payments

Creditor appealed the bankruptcy court’s approval of debtor’s proposed repayment plan. Debtor filed for Chapter 12 bankruptcy. Creditor had provided debtor with a secured loan. When debtor failed to surrender the property securing the loan, the parties agreed to “cramdown” the loan. However, the parties could not agree on the interest rate for determining the present value of future payments. The bankruptcy court accepted debtor’s proposal that added a two-percent risk adjustment to the 20-year Treasury bond rate, rounding up to four percent.

Where the bankruptcy court’s risk adjustment fully accounted for the risk of default, there was no abuse of discretion in starting the calculation from the risk-free Treasury bond rate rather than the prime rate, which accounted for the risk of default to the most creditworthy borrowers.

Judgment is affirmed.

In re: Topp (MLW No. 80312/Case No. 22-2577 – 7 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, Southern District of Iowa, Shodeen, J, and Ebinger, J.

Civil Practice

Arbitration Awards

Application To Vacate; Subject Matter Jurisdiction

Where a lawyer and his firm filed an application to vacate arbitration awards in federal court, the district court’s grant of the application is vacated because the application failed to plead the parties’ citizenship, so the order is dismissed for lack of subject matter jurisdiction.

Vacated.

Prospect Funding Holdings, LLC v. Palagi (MLW No. 80330/Case No. 22-1871 – 3 pages) (U.S. Court of Appeals, 8th Circuit, Kobes, J.) Appealed from U.S. District Court, District of Nebraska, Gerrard, J.

Self-Determination Claims

Emotional Distress Claims; COVID-19 Treatment

Where Minnesota residents filed a diversity action against two retailers after the retail pharmacists refused to fill their prescriptions for ivermectin and hydroxychloroquine for off-label use to treat their COVID-19 symptoms, the dismissal of the claims is affirmed because the Supreme Court of Minnesota would not recognize a right to a self-determination claim, and the plaintiffs failed to plead a cause of action for the intentional infliction of emotional distress.

Judgment is affirmed.

Salier v. Walmart, Inc. (MLW No. 80333/Case No. 22-2960 – 12 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, District of Minnesota, Schiltz, J.

Civil Rights

§1983

Inmate Assault; Deliberate Indifference

Plaintiff appealed the dismissal of her §1983 complaint alleging deliberate indifference after she was assaulted by a fellow inmate. The district court dismissed the complaint against one defendant on statute of limitations grounds and granted summary judgment to the other prison staff, finding no genuine issue of material fact as to whether they were deliberately indifferent to plaintiff’s safety.

Where staff were alerted to the need to separate plaintiff from the other inmate, but plaintiff declined protective custody and there was no conflict between the inmates for six months, defendants did not err in failing to draw an inference that there was a substantial risk of serious harm to plaintiff.

Judgment is affirmed.

Bordeaux v. Bicknase (MLW No. 80328/Case No. 22-3154 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Kobes, J.) Appealed from U.S. District Court, District of Nebraska, Rossiter, J.

Consumer Law

Realtors

Anticompetitive Rules; Arbitration

Defendants appealed the denial of their motion to compel unnamed class members to arbitrate. Plaintiffs filed a putative class action alleging that defendants enforced anticompetitive rules by requiring home sellers to compensate the home buyer’s broker. Defendants sought to compel arbitration based on an arbitration clause in their subsidiaries’ listing agreements. The district court denied the motion because defendants were not parties to the listing agreement.

Where defendants conceded that they were not parties or named third-party beneficiaries of the listing agreements, the district court did not err in deciding the question of arbitrability and concluding that defendants lacked standing to enforce the arbitration clauses in the agreements.

Judgment is affirmed.

Burnett v. National Association of Realtors (MLW No. 80313/Case No. 22-2664 – 14 pages) (U.S. Court of Appeals, 8th Circuit, Smith, J.) Appealed from U.S. District Court, Western District of Missouri, Bough, J.

Criminal Law

Aggravated Sexual Abuse of Child

Motion for Acquittal; Imposition of Sentencing Enhancement

Defendant appealed his conviction and sentence for sex offenses against a child and witness tampering. Defendant challenged the denial of his motion for judgment of acquittal, arguing there was insufficient evidence for the aggravated sexual abuse and witness tampering charges. Defendant also opposed the imposition of a sentencing enhancement for obstruction of justice.

Where the victim testified that defendant committed prohibited sexual acts and the victim’s grandmother testified that defendant repeatedly pressured her to convince the victim to recant her allegations, there was sufficient evidence to support defendant’s convictions.

Judgment is affirmed.

U.S. v. Little Bird (MLW No. 80320/Case No. 22-2176 – 7 pages) (U.S. Court of Appeals, 8th Circuit, Kelly, J.) Appealed from U.S. District Court, District of South Dakota, Kornmann, J.

Assault

Drug Offenses; Sixth Amendment Violations

Defendant appealed his conviction in two separate trials for assaulting a person assisting a federal officer and drug offenses. Defendant, an African American, argued that his Sixth Amendment rights were violated because the venire panels for his two trials contained only one African American. Defendant also challenged the sufficiency of evidence supporting his assault conviction.

Where the Constitution only prohibited exclusion of jurors based on race and did not guarantee a specific proportion of jurors of the same race as defendant in the venire panel, there was no Sixth Amendment violation, and there was sufficient evidence for the assault conviction where the correctional facility housed both state and federal detainees.

Judgment is affirmed.

U.S. v. Burrage (MLW No. 80311/Case Nos. 22-2438 & 22-2439 – 10 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Appealed from U.S. District Court, Southern District of Iowa, Rose, J.

Child Pornography

Incriminating Statements; Complete Defense

Where a defendant challenged his convictions for receiving child pornography, the district court’s decision to prohibit the defendant from asking about an employee’s prior sex-offense conviction did not stop him from presenting a complete defense and did not violate his Fifth and Sixth Amendment rights, and the defendant was not in custody when he made incriminating statements, so the statements did not violate his Miranda rights.

Judgment is affirmed.

U.S. v. Duggar (MLW No. 80331/Case No. 22-2178 – 11 pages) (U.S. Court of Appeals, 8th Circuit, Stras, J.) Appealed from U.S. District Court, Western District of Arkansas, Brooks, J.

Conspiracy to Distribute Drugs

Increase of Offense Level; Downward Variance

Defendant appealed the sentence imposed following her guilty plea to conspiracy to distribute drugs, arguing that the district court erred in increasing her offense level by not evaluating the extent to which she used her residence for drug distribution compared to how much she used it for lawful purposes.

Where defendant used her family home to engage in substantial drug distribution, the district court did not err by increasing defendant’s offense level.

Judgment is affirmed.

U.S. v. Chicoine (MLW No. 80326/Case No. 22-2916 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa, Rose, J.

Deprivation of Rights Under Color of Law

Motion for Acquittal; Mistrial

Defendant appealed the denial of his motions for judgment of acquittal and mistrial. Defendant was one of four officers involved in the death of George Floyd. Defendant was convicted of deprivation of rights under color of law resulting in bodily injury/death. Defendant moved for acquittal, asserting that there was insufficient evidence. Defendant also argued that prosecutorial misconduct should have resulted in a mistrial.

Where there was sufficient evidence for a jury to find that defendant willfully failed to intervene when his fellow officer used an improper restraint hold or when Floyd began displaying signs of distress, the district court correctly denied the motion for acquittal, and the district court’s curative actions remedied any prosecutorial misconduct and obviated the need to declare a mistrial.

Judgment is affirmed.

U.S. v. Thao (MLW No. 80323/Case No. 22-2701 – 9 pages) (U.S. Court of Appeals, 8th Circuit, Kobes, J.) Appealed from U.S. District Court, District of Minnesota, Magnuson, J. (Robert M. Paule, of Minneapolis, MN for appellant; Natalie Paule, of St. Paul, MN on the brief) (Elizabeth Hecker, of Washington, D.C. for appellee; Tovah Calderon, of Washington, D.C. and Lisa D. Kirkpatrick, AUSA, of Minneapolis, MN on the brief)

Drug and Firearms Offenses

§2255 Motion; Ineffective Assistance of Counsel

Defendant appealed the denial of his §2255 motion filed following his conviction for drug and firearms offenses. Defendant argued that his trial counsel was ineffective for failing to argue that use of trash-pull evidence obtained in violation of Iowa state law violated the Fourth Amendment.

Where defendant suffered no prejudice from counsel’s failure to challenge the admissibility of the evidence since the claim lacked merit, the court affirmed the denial of defendant’s §2255 motion.

Judgment is affirmed.

Jefferson v. U.S. (MLW No. 80315/Case No. 22-1444 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa, Pratt, J.

Drug and Firearms Offenses

Destruction of Evidence; Motion to Suppress

Defendant appealed his conviction for drug and firearms offenses. Defendant challenged the denial of his motion to dismiss his indictment due to alleged destruction of evidence. Defendant also challenged the district court’s failure to prohibit the government from using evidence that defendant claimed was obtained in an illegal search of his car.

Where the deleted dashcam footage could not have been exculpatory because the camera was activated only after the officer witnessed defendant’s traffic violation, there was no error in denying defendant’s motion to dismiss especially where he failed to present evidence of bad faith.

Judgment is affirmed.

U.S. v. Thorton (MLW No. 80324/Case No. 22-2790 – 5 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Wright, J.

Drug Offense

Reasonableness of Sentence; Sentencing Factors

Defendant challenged the reasonableness of the sentence imposed following her guilty plea to a drug offense.

Where the district court adequately considered the relevant statutory sentencing factors and made no clear error of judgment in weighing the factors, the court affirmed the sentence.

Judgment is affirmed.

U.S. v. Jenkins (MLW No. 80317/Case No. 23-1621 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa, Rose, J.

Felon in Possession of Firearm

Statutory Maximum Sentence; Excessive Sentence

Defendant appealed the sentence imposed following his guilty plea to being a felon in possession of a firearm, arguing that his sentence was excessive.

Where there was sufficient evidence to prove that defendant fired at a busy nightclub, there was no abuse of discretion in imposing the statutory maximum sentence.

Judgment is affirmed.

U.S. v. Robertson (MLW No. 80325/Case No. 22-2868 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa, Williams, J.

Firearm Offense

Substantive Reasonableness of Sentence; Consideration of Sentencing Factors

Defendant appealed the sentence imposed following her guilty plea to a firearm offense, challenging the substantive reasonableness of the sentence.

Where the district court adequately considered all relevant sentencing factors, the court affirmed the sentence.

Judgment is affirmed.

U.S. v. Hobbs (MLW No. 80314/Case No. 23-1387 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa, Williams, J.

Possession of Unregistered Firearm

Upward Enhancement; Obstruction of Justice

Defendant appealed the sentence imposed following his guilty plea to possession of an unregistered firearm. Defendant challenged the application of a four-level sentencing enhancement for trafficking firearms and the overall reasonableness of the sentence.

Where defendant knew that the person he was selling weapons to intended to resell them to others, there was sufficient evidence to support the trafficking enhancement, and there was no abuse of discretion by the district court in assigning greater weight to the circumstances of defendant’s offense.

Judgment is affirmed.

U.S. v. Riley (MLW No. 80321/Case No. 22-3240 – 5 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Rudofsky, J.

Revocation of Supervised Release

Challenge to Sentence; Sentencing Discretion

Defendant appealed the sentence imposed following the revocation of his supervised release.

Where the district court appropriately considered the statutory sentencing factors, there was no abuse of sentencing discretion.

Judgment is affirmed.

U.S. v. Barhoumi (MLW No. 80316/Case No. 23-1483 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Missouri, Sippel, J.

Revocation of Supervised Release

Upward Enhancement; Obstruction of Justice

Defendant appealed the sentence imposed following the revocation of his supervised release. The district court imposed a term of imprisonment followed by another term of supervised release that included temporary residency in a reentry center as a condition of release. On appeal, defendant argued that the district court erred by referring generally to special conditions of release rather than specifically imposing the residential reentry condition.

Where defense counsel had expressly agreed to a residential reentry condition during the revocation hearing, there was no error as there was no impermissible conflict between the oral pronouncement and written sentence.

Judgment is affirmed.

U.S. v. Davis (MLW No. 80318/Case No. 23-1872 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa, Reade, J.

RICO

Offenses Committed During Conspiracy; Prison Credits

Defendant appealed the sentence imposed following his conviction under the RICO Act. Defendant had argued for a sentence below the Guidelines range because he had served time in Nebraska state prison for drug offenses that were committed during the RICO conspiracy.

Where defendant had completed his state sentence and thus was not subject to an undischarged term of imprisonment and the district court did not err in treating that prior offense as criminal history rather than offense conduct, there was no abuse of sentencing discretion.

Judgment is affirmed.

U.S. v. Haynie (MLW No. 80310/Case No. 21-3654 – 5 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Appealed from U.S. District Court, District of Nebraska, Bataillon, J.

Robbery

Using a Firearm During Crime of Violence; Motion for Acquittal/New Trial

Defendant appealed the denial of his motions for acquittal or new trial. Defendant was convicted of conspiracy to commit robbery and using a firearm during a crime of violence resulting in murder. The government alleged that a drug dealer was robbed and killed and his body was burned in a pit behind defendant’s house.

Where there was sufficient evidence to prove that the victim was a drug dealer who purportedly sold defendant poor quality drugs, the district court correctly denied defendant’s motion for acquittal, and defendant was not entitled to a new trial based on DNA and bone fragment evidence which was relevant to the government’s theory at trial.

Judgment is affirmed.

U.S. v. Robbins (MLW No. 80308/Case No. 21-3360 – 4 pages) (U.S. Court of Appeals, 8th Circuit, Kobes, J.) Appealed from U.S. District Court, Northern District of Iowa, Strand, J.

Sentencing

Upward Variance

Where a defendant challenged his sentence in a child pornography case, the district court adequately explained an upward variance and did not commit plain procedural error in imposing the sentence, and the sentence was substantively reasonable, so the judgment is affirmed.

Judgment is affirmed.

U.S. v. Gray (MLW No. 80332/Case No. 22-2739 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas.

Sexual Exploitation of a Child

Statutory Maximum Sentence; Reasonableness of Sentence

Defendant appealed the sentence imposed following his guilty plea to sexual exploitation of a child, after he used three young relatives to produce child pornography. The district court imposed the advisory Guidelines sentence, which was also the statutory maximum sentence, which defendant argued was unreasonable.

Where the district court had discretion not to disagree with the Guidelines range, there was no error in imposing the statutory maximum recommended by the Guidelines based on the aggravating circumstances of defendant’s offense.

Judgment is affirmed.

U.S. v. Carter (MLW No. 80329/Case No. 22-3441 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa, Ebinger, J.

Employer-Employee

CBA

Contribution of Funds; Audit

Defendants, two general contractors, appealed the grant of summary judgment in favor of plaintiffs, four employee benefit funds and two labor unions. Defendants signed onto a CBA that required them to submit monthly contributions to the funds. Plaintiffs audited defendants for January 2017 through March 2020 and discovered that they had failed to report and pay necessary contributions for covered laborers. The district court granted summary judgment for plaintiffs, rejecting defendants’ assertions that they were not bound by ERISA or the CBA or that the NLRA required plaintiffs to exhaust administrative remedies.

Where there were genuine issues of material fact as to whether defendants received authorization cards necessary to trigger their contribution obligations under the CBA, the district court erred in granting plaintiffs summary judgment.

Judgment is reversed.

Greater St. Louis Construction Laborers Welfare Fund v. B.F.W. Contracting, LLC (MLW No. 80319/Case No. 22-2138 – 7 pages) (U.S. Court of Appeals, 8th Circuit, Smith, J.) Appealed from U.S. District Court, Eastern District of Missouri, Sippel, J.

Unlawful Termination

Public Policy Exception

Where a physician, who claimed that she was unlawfully terminated because she reported suspected alterations to her electronic patient medical records, challenged the grant of summary judgment to her employer, the district court properly held that the plaintiff failed to establish that her conduct fell within the public policy exception because she had not reported illegal activity on the part of the employer, and she failed to establish a causal link between her reports of data alterations and her termination, so the judgment is affirmed.

Judgment is affirmed.

Jones v. Wellpath, LLC (MLW No. 80343/Case No. 22-2445 – 11 pages) (U.S. Court of Appeals, 8th Circuit, Grasz, J.)  Appealed from U.S. District Court, Eastern District of Arkansas, Miller, J.

Wrongful Death Action

Workplace Toxic Exposure; Exclusion of Expert Testimony

Plaintiff appealed the summary judgment dismissal of her complaint following the exclusion of her expert witness’s testimony. Plaintiff filed a wrongful death action under the Federal Employers’ Liability Act on behalf of her husband, who had worked for defendant, claiming that her husband’s cancer was caused by his exposure to toxins at work. The district court excluded plaintiff’s expert who opined that the exposures caused plaintiff’s husband’s cancer, ruling that the expert’s opinion was based on a misunderstanding of plaintiff’s expert’s report regarding the workplace exposures.

Where there was no evidence that plaintiff’s husband was exposed to above-normal levels of asbestos or diesel fumes at work, the district court did not abuse its discretion in concluding plaintiff’s expert’s report lacked a sufficient foundation since it presumed exposure to above-normal levels.

Judgment is affirmed.

Lancaster v. BNSF Railway Company (MLW No. 80309/Case No. 21-3366 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Kobes, J.) Appealed from U.S. District Court, District of Nebraska, Gerrard, J.

Immigration

Asylum

Social Group

Where a petitioner from Honduras sought asylum and the withholding of removal, the petitioner’s proposed social groups were not socially distinct and did not establish a basis for asylum, and the immigration judge did not abuse discretion by denying the request for a continuance since there was no meritorious ground for asylum.

Petition denied.

Baquedano-Munguia v. Garland (MLW No. 80344/Case No. 22-2599 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Petition for review of an order of the Board of Immigration Appeals.

Cancellation of Removal

Exercise of Discretion; Pending Prosecution

Petitioner sought review of the denial of his request for cancellation of removal. The BIA concluded that petitioner was not entitled to the discretionary relief of cancellation of removal due to his pending charges for sexual assault of a child.

Where petitioner had no liberty interest not to be asked about his prosecution during the cancellation hearing, there was no abuse of discretion in denying petitioner’s request for cancellation of removal due to his pending charges.

Petition is denied in part and dismissed in part.

Castillo-Rodriguez v. Garland (MLW No. 80322/Case No. 22-2502 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Petition for Review of an Order of the Board of Immigration Appeals.

Removal Proceedings

Cancellation of Removal; New Evidence

Petitioner sought review of the BIA’s denial of his motion to remand his case. Petitioner applied for cancellation of removal, but an IJ denied the request. Petitioner appealed to the BIA to remand his case back to the IJ to consider as new evidence the fact that he had gained sole custody of his children and would take them back to Honduras if deported. On appeal, petitioner argued that the BIA abused its discretion in denying a remand to the IJ.

Where there was no evidence that petitioner had advised the state court of his removal proceedings or indicated that he would relocate with his children and the state court made any relocation conditional on its approval, petitioner’s custody order did not constitute new evidence that would change the outcome of his removal proceedings.

Petition is denied.

Recarte-Cruz v. Garland (MLW No. 80307/Case No. 20-2398 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Petition for Review of an Order of the Board of Immigration Appeals.