8th U.S. Circuit Court of Appeals Digest: Aug. 23, 2023

Administrative Law

Gun Control Act

Amended Rule; Statutory Authority

Where private plaintiffs and 17 states sued the Bureau of Alcohol, Tobacco, Firearms and Explosives for overstepping statutory authority and for violating federal law in promulgating new definitions of terms including “firearm frame or receiver,” the district court did not err in denying the request for a preliminary injunction because the plaintiffs failed to show that they would suffer irreparable harm without the injunction, and the plaintiffs failed to show how the final rule would prevent them from engaging in constitutionally protected conduct and they also failed to show that they would suffer actual economic harm.

Judgment is affirmed.

Morehouse Enterprises, LLC v. Bureau of Alcohol, Tobacco, Firearms and Explosives (MLW No. 80427/Case No. 22-2812 – 10 pages) (U.S. Court of Appeals, 8th Circuit, Melloy, J.) Appealed from U.S. District Court, District of North Dakota, Welte, J.

Bankruptcy Law

Avoidance Action

Sale of Property

Where creditor objected to trustee’s motions to compromise and to sell property free and clear of liens, Chapter 5 avoidance actions are part of the bankruptcy estate and can be sold as property of the estate, and the bankruptcy court did not err in approving the trustee’s motion to approve a proposed compromise and sale.

Judgment is affirmed.

Pitman Farms v. ARKK Food Company, LLC (MLW No. 80414/Case No. 22-2011 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Melloy, J.) Appealed from U.S. Bankruptcy Court, Northern District of Iowa, Collins, J.

Civil Rights

§1983

Dental Treatment; Exhaustion of Administrative Remedies

Plaintiff, an inmate, appealed the adverse grant of summary judgment in his §1983 claim alleging deliberate indifference to medical and dental needs.

Where plaintiff failed to exhaust his administrative remedies as to one defendant and could not show that the other defendant knew of plaintiff’s serious medical need from an abscessed tooth, the district court correctly granted summary judgment for defendants.

Judgment is affirmed.

Avery v. Stringfellow Dentistry (MLW No. 80402/Case No. 22-3250 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Marshall, J.

§1983

Excessive Force; Objectively Reasonable Use of Force

Plaintiff appealed the grant of summary judgment for defendants. Police attempted to stop plaintiff’s husband’s vehicle after he turned without signaling, but he kept driving, leading police on a pursuit where he nearly crashed with another vehicle. Plaintiff’s husband then abruptly stopped and exited his vehicle with a large knife and began running at the officers. When he was not stopped by a taser, the officers opened fire with their service pistols, killing him. Plaintiff filed suit alleging that the officers used excessive force. The district court granted summary judgment for defendants, concluding that the officers’ use of deadly force was objectively reasonable.

Where plaintiff’s husband posed an imminent threat of injury or death to the officers by charging at them with a knife and could not be stopped by non-lethal force, the officers were objectively reasonable in opening fire with their service pistols and continuing to fire when plaintiff’s husband continued to approach them.

Judgment is affirmed.

Quinones v. City of Edina (MLW No. 80398/Case No. 22-2818 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Appealed from U.S. District Court, District of Minnesota, Schiltz, J.

§1983

Prison Inmate; Retaliatory Search

Defendants appealed the denial of their motion for summary judgment on grounds of qualified immunity. Prison guards searched plaintiff’s cell after he called a tipline to report drug activity. Plaintiff filed suit, alleging that the search was retaliatory.

Where it would not be clearly established for the prison officials that conducting one search of an inmate’s cell would chill the inmate from making further reports about illegal activity, the district court erred in denying qualified immunity to defendants.

Judgment is reversed and remanded.

Covert v. Plummer (MLW No. 80411/Case No. 23-1557 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas.

Criminal Law

Conspiracy to Possess Drugs

Co-Defendants; Disparity in Sentencing

Defendant appealed the sentence imposed following his conviction of conspiracy to possess cocaine and possession with intent to distribute, after he and his co-defendant were found in possession of cocaine during a traffic stop. The district court sentenced the co-defendant to 97 months but varied upward and sentenced defendant to 130 months. Defendant challenged the disparity in sentencing on appeal.

Where the co-defendant’s sentencing record was not included in defendant’s record on appeal, the court could not evaluate the disparity in sentencing, and any disparity could be explained by the fact that defendant drove the vehicle involved in the conspiracy and the district court’s identification of other aggravating sentencing factors.

Judgment is affirmed.

U.S. v. Aponte (MLW No. 80410/Case No. 22-3371 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of Nebraska, Bueshcer, J.

Conspiracy to Distribute Drugs

Sentencing Reduction; Sentencing Discretion

The government appealed the sentence imposed by the district court after defendant pled guilty to conspiracy to distribute methamphetamine. The government moved to reduce defendant’s sentence based on his assistance in the investigation and prosecution of another individual. On appeal, the government argued that the district court improperly relied upon factors unrelated to defendant’s assistance in reducing his sentence from 120 to ten months.

Where the district court’s commentary in imposing sentence indicated that it relied upon factors other than defendant’s assistance to investigators in calculating the reduction in sentence, the district court erred in failing to explain how defendant’s assistance alone justified the reduction.

Kelly, J., concurring: “And in accordance with that statement, the district court weighed Eckis’s substantial assistance. The reduction was substantially lower than what the government recommended, but the court explained that it simply saw ‘the level of cooperation differently than the federal government in this case.’ The district court emphasized that it was ‘fully cognizant of the fact that [it is] not allowed to consider the [§] 3553(a) factors in determining a sentence that falls below the mandatory minimum,’ and I would take the court at its word.”

Judgment is vacated and remanded.

U.S. v. Eckis (MLW No. 80408/Case No. 22-2346 – 7 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of North Dakota.

Drug and Firearms Offenses

Mandatory Life Sentence; First Step Act

Defendant appealed the denial of his motion for resentencing. After being convicted for several drug and firearms offenses, defendant was sentenced to a mandatory life sentence based on two prior drug convictions. Defendant moved for resentencing, arguing that the passage of the First Step Act constituted an “extraordinary and compelling” reason for resentencing. The district court denied the motion.

Where a non-retroactive change in the law could not support a finding of “extraordinary and compelling” reasons for resentencing, the district court correctly denied defendant’s motion.

Judgment is affirmed.

U.S. v. Olivares (MLW No. 80395/Case No. 22-2034 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of South Dakota, Viken, J.

Drug and Firearm Offenses

Motion to Suppress; Franks Hearing

Defendant appealed the denial of his motion to suppress and for a Franks hearing, following his conditional guilty plea to drug and firearm offenses.

Where defendant failed to raise specific objections before the district court, he waived his challenge to the denial of a Franks hearing, and the district court correctly denied his suppression motion where the search warrant was supported by adequate probable cause.

Judgment is affirmed.

U.S. v. Souza (MLW No. 80403/Case No. 22-3438 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa, Rose, J.

Failure to Register as Sex Offender

Application of Time Served; State Incarceration

Defendant appealed the sentence imposed following his guilty plea to failure to register as a sex offender. On appeal, defendant argued that the trial court improperly applied the sentencing guidelines by failing to apply time he served in Florida for a related state offense.

Where the district court found that defendant’s Florida sentence was for conduct relevant to the present offense of conviction, the court was forced to vacate and remand defendant’s sentence for clarification as to why the district court did not credit defendant for time served.

Judgment is vacated and remanded.

U.S. v. McKenzie (MLW No. 80401/Case No. 22-1954 – 5 pages) (U.S. Court of Appeals, 8th Circuit, Melloy, J.) Appealed from U.S. District Court, District of South Dakota, Kornmann, J.

First-Degree Murder

Prior Bad Acts Evidence; Jury Instructions

Defendant appealed his conviction for first-degree murder and related weapons offenses. On appeal, defendant argued that the district court improperly admitted prior bad acts evidence of defendant’s jealous behavior, erroneously found that the government presented sufficient evidence of premeditation, and erred in failing to sua sponte instruct the jury on imperfect self-defense or grant defendant’s request for an involuntary manslaughter instruction.

Where defendant had reasonable notice of the prior bad acts evidence and cross-examined the witnesses, there was no error in admitting the evidence, and the government presented sufficient evidence of premeditation by establishing defendant’s tumultuous relationship with the victim and actions defendant took in the weeks leading up to the murder. The district court properly instructed the jury where forensic evidence disputed any claim of self-defense and could not support any finding of criminal negligence or gross negligence.

Judgment is affirmed.

U.S. v. Crow Ghost (MLW No. 80404/Case No. 22-3447 – 15 pages) (U.S. Court of Appeals, 8th Circuit, Erickson, J.) Appealed from U.S. District Court, District of South Dakota, Kornmann, J.

First Step Act

Time Credits; Ineligibility

Petitioner sought review of the district court’s denial of his petition to compel the Bureau of Prisons to allow him to earn First Step Act time credits. Petitioner had pled guilty to three offenses and received three consecutive sentences, including a conviction and sentence for a §942(c) conviction. The district court concluded petitioner was ineligible for FSA credits based on that conviction. On appeal, petitioner argued he had completed his sentence for his §924(c) conviction and therefore was eligible to earn credits on his other two sentences.

Where the BOP could treat consecutive terms as a single aggregated term for purposes of FSA time credit eligibility, the district court correctly denied petitioner’s petition.

Judgment is affirmed.

Sok v. Eischen (MLW No. 80405/Case No. 23-1025 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of Minnesota, Tostrud, J.

Possession of Firearm by Felon

Downward Departure; Substantive Reasonableness of Sentence

Defendant appealed the sentence imposed following his guilty plea to possession of a firearm by a felony. Based on a reduction for acceptance of responsibility and enhancements for the types of firearms involved, defendant had a Guidelines range of 130-162 months, which the district court reduced to the statutory maximum sentence of 120 months. The district court rejected defendant’s motion for a downward departure on grounds that he had never fired the guns or used them in a violent way.

Where the district court considered the relevant sentencing factors, there was no abuse of discretion in imposing a within-range sentence.

Judgment is affirmed.

U.S. v. McNealy (MLW No. 80397/Case No. 22-2336 – 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 Firearm by Felon

Motion to Suppress Evidence; Consent to Search

Defendant appealed from the denial of his motion to suppress evidence in his prosecution for being a felon in possession of a firearm. A 911 caller reported that someone in a wheelchair had shot a gun from an apartment balcony. Police went to the apartment. Defendant, who was in a wheelchair, answered the door and submitted to a pat down, which found nothing. Defendant further consented to a protective sweep of the apartment, telling the officers, “you can do whatever you want.” After officers found a spent shell casing in plain view on the balcony, defendant eventually confessed to being the shooter and told officers where to find the gun. On appeal, defendant argued that the officers’ actions after they entered his apartment violated his Fourth Amendment rights.

Where police were investigating a report of an individual who had recently fired a gun, it was reasonable for officers to enter defendant’s apartment to pat him down before questioning him. The officers were free to seize the shell casing in plain view when defendant consented to, at minimum, a protective sweep.

Judgment is affirmed.

U.S. v. Williams (MLW No. 80399/Case No. 22-3023 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Stras, J.) Appealed from U.S. District Court, District of Nebraska, Rossiter, J.

Production of Child Pornography

Breach of Plea Agreement; Upward Variance

Defendant appealed the sentence imposed following his guilty plea to production of child pornography. On appeal, defendant argued that the government breached his plea agreement and that the district court improperly calculated his Guidelines range and failed to explain its decision to vary upward.

Where the plea agreement did not preclude the government from presenting materials that could support an upward variance, there was no breach of the plea agreement which merely barred the government from requesting an upward departure. There was no abuse of sentencing discretion by the district court where there was sufficient evidence to support the upward variance and the district court explained the variance was necessary to deter defendant from engaging in similar conduct in the future.

Judgment is affirmed.

U.S. v. Ord (MLW No. 80407/Case No. 22-2163 – 6 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Wilson, J.

Robbery

Substantive Reasonableness of Sentence; Consideration of Sentencing Factors

Defendant appealed the sentence imposed following his guilty plea to robbery, challenging the substantive reasonableness of the sentence.

Where the district court adequately considered the relevant statutory sentencing factors, there was no abuse of sentencing discretion, and defendant’s within-Guidelines sentence was presumptively reasonable.

Judgment is affirmed.

U.S. v. Mitchell (MLW No. 80406/Case No. 23-1200 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa, Strand, J.

Sentencing

Substantive Reasonableness

Where a defendant challenged his sentence after pleading guilty to being a felon in possession of a firearm, the sentence was substantively reasonable, and the district court did not abuse its discretion.

Judgment is affirmed.

U.S. v. Horgdal (MLW No. 80428/Case No. 23-1206 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa.

Employer – Employee

Race Discrimination

Battery

Where a contract attorney for a legal staffing company appealed the dismissal of claims against the company that included harassment and discrimination, the judgment is affirmed in part because the plaintiff failed to establish a prima facie case of race discrimination, her §1981 claim failed as a matter of law, and she was unable to state claims for defamation, malicious prosecution, or other willful, wanton or malicious conduct to show the negligent infliction of emotional distress, but the district court erred in granting summary judgment to a co-worker defendant on a battery claim because there was a genuine issue of material fact, so the matter is vacated and remanded in part.

Judgment is affirmed in part; reversed and remanded in part.

Yang v. Robert Half International, Inc. (MLW No. 80426/Case No. 22-2592 – 20 pages) (U.S. Court of Appeals, 8th Circuit, Erickson, J.) Appealed from U.S. District Court, District of Minnesota, Brase, J.

Retaliation

Title VII; Protected Activity

Where a school district employee who was passed over for a superintendent role sued her employer for discrimination and retaliation in violation of Title VII and 42 U.S.C. §1981, and a jury awarded her damages that included punitive damages, the plaintiff did not engage in a protected activity for the purposes of Title VII by reporting a disparity between middle school and high school facilities since the report did not concern an underlying discriminatory matter, so the jury verdict is vacated, and the case is remanded with directions to enter a judgment as a matter of law for the defendants.

Vacated; remanded.

Warren v. Kemp (MLW No. 80425/Case No. 22-2067 – 16 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, Eastern District of Arkansas, Miller, J.

Immigration

Removal

Aggravated Felony

Where a petitioner from Africa pleaded guilty to aggravated identity theft, the Board of Immigration Appeals did not err in concluding that the conviction was a qualifying felony making her removable, and the board did not apply the wrong legal standard in finding the petitioner ineligible for the withholding of removal and there was also no error in the denial of CAT relief.

Judgment is affirmed.

Robbertse v. Garland (MLW No. 80413/Case No. 22-1739 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Melloy, J.) Petition for review of an order of the Board of Immigration Appeals.

Removal

Hobbs Act Robbery; Waiver of Inadmissibility

Petitioner sought review of the Board of Immigration Appeal’s denial of his petition for waiver of removal or inadmissibility. Petitioner, a permanent resident, pled guilty to Hobbs Act robbery. Immigration officials began removal proceedings on grounds that Hobbs Act robbery was a crime of violence. The BIA agreed and refused to waive inadmissibility.

Where the courts had only questioned whether attempted Hobbs Act robbery could qualify as a crime of violence, petitioner’s argument failed as he was convicted of completed Hobbs Act robbery, and the BIA correctly denied waiver of inadmissible under the de novo review standard.

Petition is denied.

Green v. Garland (MLW No. 80396/Case No. 22-2335 – 5 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Petition for Review of an Order of the Board of Immigration Appeals.

Insurance Law

Lost Business Income

COVID-19 Pandemic

Where a restaurant and bar owner sought insurance coverage for lost business income incurred during the COVID-19 pandemic, the mere presence of the virus at the plaintiff’s properties was insufficient to show a covered loss, and any errors in the jury instructions did not impact the plaintiff’s substantial rights, so the district court did not err in denying the plaintiff’s renewed motion for judgment as a matter of law after the jury verdict in favor of the insurer.

Judgment is affirmed.

K.C. Hopps, Ltd. v. The Cincinnati Insurance Company, Inc. (MLW No. 80412/Case No. 22-1356 – 5 pages) (U.S. Court of Appeals, 8th Circuit, Kobes, J.) Appealed from U.S. District Court, Western District of Missouri, Bough, J.

Negligence

Medical Malpractice

Court’s Comments to Jury; Prevailing Party Award

Plaintiff appealed the judgment of the district court. Plaintiff suffered severe adverse effects from a prescribed antibiotic. He filed suit against his healthcare providers for medical negligence, but the jury found in favor of defendants. Plaintiff moved for a new trial, challenging the district court’s comments to the jury and its evidentiary rulings. The district court denied plaintiff’s motion and awarded defendants their legal costs as the prevailing party.

The court lacked jurisdiction to hear plaintiff’s appeal from the underlying judgment as untimely filed, but it affirmed the denial of plaintiff’s motion for new trial and the award of costs to defendants where the district court’s comments, although containing ill-advised supplementary statements, enforced to the jury that it was responsible for resolving all factual questions.

Judgment is affirmed.

Gonzalez v. Shahin (MLW No. 80394/Case No. 22-2012 – 12 pages) (U.S. Court of Appeals, 8th Circuit, Kelly, J) Appealed from U.S. District Court, District of North Dakota, Traynor, J.

Torts

Motor Vehicle Accident

Expert Witness Disclosures; Exclusion of Expert Testimony

Plaintiff appealed the summary judgment dismissal of his motor vehicle accident lawsuit. Plaintiff filed suit in district court under diversity jurisdiction. Defendant admitted that her negligence was the proximate cause of the accident. However, after disputes over plaintiff’s expert witness disclosure, the district court excluded plaintiff’s treating physicians from offering expert testimony regarding a causal link between plaintiff’s alleged injuries and the accident.

Where plaintiff’s treating physician had formed his opinion on causation outside the course of treatment at the request of plaintiff’s counsel, the expert’s failure to submit a written report required barring his testimony at trial and resulted in the grant of summary judgment to defendant due to plaintiff’s lack of evidence of causation.

Judgment is affirmed.

Johnson v. Friesen (MLW No. 80409/Case No. 22-3335 – 7 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, District of Nebraska, Buescher, J.