Legal funions

[Chilidog]

snacks of funny things law related.

i’ll start

[RTH10260]

[KickahaOta]

From US v. Raymond McKinney in the 5th Circuit.

Background:

• McKinney is charged with felon-in-possession-of-a-firearm. He moves in district court to suppress the evidence, and loses. He pleads guilty, reserving his right to appeal the suppression ruling, and is sentenced to time served.
• He appeals. The Fifth Circuit (not exactly a bastion of the rights of criminal defendants) reverses, finding that that "the evidence before the district court—the officers’ body-camera footage, the police report, and some photographs—did not indicate that the officers had reasonable
  suspicion to detain McKinney for questioning".
• The case goes back to the district court, which calls the officers involved to testify, then re-denies the suppression motion and reinstates the conviction.
• Back up to the Fifth Circuit it goes. And the Fifth Circuit reverses again, on the grounds that the officers' testimony "does nothing to assuage our earlier concern that the officers stopped McKinney based on nothing more than a hunch."

The thing that qualifies this as a funion is this rather... pointed footnote from the opinion:

The district court then scheduled an evidentiary hearing, but gave McKinney time to consider withdrawing his suppression motion. The district court then stated:

I follow Judge [Lucius Desha] Bunton’s rule about Fifth Circuit opinions. “They can reverse me if they want to, but they can’t make me read it,” which I'm glad you all have read it. But I also -- if my recollection is correct, none of those fine judges have ever tried a case or dealt with what we deal with on the street. But, anyway, what do I know?

I suspect that the honorable Fred Biery is no longer on the panel members' Christmas card lists.

[KickahaOta]

From the "definition of chutzpah" file:

Ricardo Barraza pleaded guilty to conspiracy to distribute drugs in 2005. After his guilty plea, but before sentencing, he fled to Mexico, and stayed there for over a decade. By 2019, he had developed life-threatening kidney disease and renal failure. He returned to the US border, surrendered himself to border agents, and was hospitalized for life-saving treatment. In 2021, he was finally brought before the court for sentencing.

He made the following arguments for a lower sentence:

• He should receive credit for acceptance of responsibility. After all, he did plead guilty back in 2005, and he did eventually surrender. Never mind those boring fourteen years in between.
• He should not receive an enhancement for obstructing justice by fleeing the country. He had received threats because of his cooperation with the feds, and anyway, all's well that ends well.
• He should receive a lower sentence because of his very poor physical condition. Why, if it weren't for advanced medical care and dialysis (supplied by the Bureau of Prisons), he'd be dead right now!

The judge was strangely unmoved, and sentenced him to 151 months.


Sentencing hearing transcript
Eighth Circuit affirmance

[realist]

Ifollow Judge [Lucius Desha] Bunton’s rule about Fifth Circuit opinions. “They can reverse me if they want to, but they can’t make me read it,” which I'm glad you all have read it. But I also -- if my recollection is correct, none of those fine judges have ever tried a case or dealt with what we deal with on the street. But, anyway, what do I know?

Don’t know if this qualifies as a funion or not, but I was once a party defendant in a case before Judge Bunton. A bench trial. My father, brother and I were being sued by a major oil company’s agricultural division. On the second day of trial the plaintiff rested and we took our lunch break.

At lunch I queried my attorney about motions, assuming he would move for a directed verdict when we returned, one because the plaintiff had failed to prove a case and two, just in case, to make a record for appeal, if necessary.

My attorney said no, he was not planning to because Judge Bunton had never granted a directed verdict and it would just piss him off and “I have to practice in front of him” I informed him that if he didn’t do so, and we lost, the first thing he should do upon returning to his office was notify his carrier.

Needless to say, he made the motion, kind of perfunctorily, but adequate for the record. The plaintiff responded (they had actually been prepared for the motion). At the conclusion of argument Judge Bunton declared a recess. He was gone for almost an hour. My attorney said this is not good, “he’s probably pissed and is going to lower the boom on me.”

The judge returned and thanked the parties for their argument and said he’d spent some time reading the cases cited then asked both sides if they’d read (can’t remember the case) and they both indicated in the negative. Judge Bunton said he was disappointed, as he’d written the opinion.

He then proceeded to grant our motion for directed verdict. All the attorneys were shocked, not the least of all mine. I told him he should say thank you and reduce my fee as I’d made him look good and he could brag about getting the first directed verdict from Judge Bunton. Ever.

And he did cut the fee by a good bit.

[Suranis]

This is from about 8 years ago, but is still hilarious. And, as one of the comments says, its a fine example of when a defense Attorney has coached the witness so much the Witness does not know what to do.

[bill_g]

That was maddening. It sounded like a skit from SNL or Mr. Bean.

[realist]

This is from about 8 years ago, but is still hilarious. And, as one of the comments says, its a fine example of when a defense Attorney has coached the witness so much the Witness does not know what to do.

Actually it appears to me he knows exactly what he’s been coached to say.

[KickahaOta]

Crime ProTip:

If you are a felon who cannot carry a firearm, and if you are a known gang member in a town where the anti-gang unit is well-known to follow gang members' social media, and if you are carrying a gun in a fanny pack while at a heavily-patrolled fairgrounds, consider the benefits of not posting these activities to Facebook.

While on patrol at the fair, Officer Singletary also was monitoring the social media activity of some gang members. Officers Singletary observed a new “post” on Facebook made by Gist-Davis: “Oops see me at da fair yea I got it on me lil boy Fannie pack gang.”

[...]

The officers arrested Gist-Davis and took him to the police “command post” at the fair. There, Gist-Davis volunteered the statement, “Man, you really be monitoring that social media.” And later, on the way to the jail, Gist-Davis stated that he “told on [himself],” apparently referencing his earlier statement on Facebook.

US v. Gist-Davis, Fourth Circuit Court of Appeals, July 18th, 2022

[Chilidog]

This is from about 8 years ago, but is still hilarious. And, as one of the comments says, its a fine example of when a defense Attorney has coached the witness so much the Witness does not know what to do.

to be fair, i have never heard anyone use the term “photocopy machine.”

we just call it the copier. I noticed at one point, the witness alluded to non-electronic copies. i’m like “is he talking about a mimeograph?”

[Suranis]

to be fair, i have never heard anyone use the term “photocopy machine.”

we just call it the copier. I noticed at one point, the witness alluded to non-electronic copies. i’m like “is he talking about a mimeograph?”

Yeah, true. But at 3:56 the lawyer says "The word Photocopying is at issue in this case," so I assume they had to use the phrase "photocopying machine" because of some legal issue or other.

[W. Kevin Vicklund]

This is from about 8 years ago, but is still hilarious. And, as one of the comments says, its a fine example of when a defense Attorney has coached the witness so much the Witness does not know what to do.

to be fair, i have never heard anyone use the term “photocopy machine.”

we just call it the copier. I noticed at one point, the witness alluded to non-electronic copies. i’m like “is he talking about a mimeograph?”

That's one of many terms I use. I think at one point the guy mentioned gas-powered machines. Wait, wut?

[bill_g]

Briggs and Straton makes a nice photocopier. They have a 6HP 200cc motor that can really crank up office productivity. They are working on a V-twin model for industrial applications.

ETA: Link to the product review article: https://www.betterlawnsandcopiers.com

In this month's addition they have a story about the new Xerox landscaping copier intended for the property management sector. It might be a game changer for them.

[KickahaOta]

Do. Not. Advertise. Your. Crimes. On. Social. Media.

US v. Paris Steele, Seventh Circuit Court of Appeals

Between July 2016 and January 2017, Paris Steele sold five guns and nearly 35 grams of crack cocaine to a confidential informant with the Bureau of Alcohol, Tobacco, Firearms and Explosives on Chicago’s South Side. One of the guns had an obliterated serial number and another had a shortened barrel. On two occasions Steele sold the informant both a firearm and crack cocaine in the same transaction. He was 19 years old when the sales began and 20 at the time of his arrest in April 2017.

Steele was charged by a superseding indictment with one count of willfully dealing firearms without a license, 18 U.S.C. § 922(a)(1)(A), and five counts of distributing crack cocaine, 21 U.S.C. § 841(a)(1). After initially being ordered detained, he was released on an unsecured bond into the custody of his grandmother as his third-party custodian. As a condition of his release, he was not permitted to possess firearms, destructive devices, or other weapons.

While out on bond, Steele lived with his grandmother as directed and worked the night shift at a welding company. He was well liked by his boss. But then in July 2018, three videos were posted to YouTube showing Steele brandishing a semiautomatic pistol with a large, extended ammunition clip. In one video he appears to fire live rounds; in another he made violent threats against rival gang members, possibly in retaliation for the death of a friend. At times Steele points the gun at the camera. In one video he says “we play with these” while holding up the gun. The government learned of the videos—which were publicly available on YouTube—a week after they were posted. The district court then revoked Steele’s bond.

[KickahaOta]

In view of all the circumstances here, a reasonable person would not believe that he or she was free to leave a house while an officer repeatedly fired at the front door.

-- Mark and Sherrie Campbell v. Cheatam County Sheriff's Department et al, Sixth Circuit opinion

(Believe it or not, a member of the appellate panel dissented in this point!)

[KickahaOta]

Mahindra & Mahindra, LTD, et al v. FCA US, LLC is an interesting case from the Sixth Circuit involving "trade dress infringement" -- making your product look too much like another, in this case an offroad vehicle that looked too much like a Jeep. And it analyzes the "safe distance rule", an equitable principle that says that, once you're caught infringing someone else's trade dress, you shouldn't be allowed to change your design just enough to satisfy the law; you should have to make your product significantly more different, so that you don't benefit from your earlier wrongdoing.

None of this is funny.

However, I list the case as a funion because of an earlier precedent it discusses, concerning what we would now call "cybersquatting" and "sour grapes":

In Taubman, the defendant created a website with the domain name shopsatwillowbend.com, which the plaintiff claimed infringed on the trademarked name of its shopping mall, “The Shops at Willow Bend.” The plaintiff brought a trademark infringement action and filed a motion for a preliminary injunction. Id. The defendant responded by registering five more domain names: taubmansucks.com, shopsatwillowbendsucks.com, theshopsatwillowbendsucks.com, willowbendmallsucks.com, and willowbendsucks.com.

The court required the defendant to give up shopsatwillowbend.com. However, despite the plaintiff's attempts to invoke the safe distance rule, the five "sucks" names were allowed to remain.

Also discussed: a cola beverage named "Gay-Ola".

[northland10]

Mahindra & Mahindra, LTD, et al v. FCA US, LLC is an interesting case from the Sixth Circuit involving "trade dress infringement" -- making your product look too much like another, in this case an offroad vehicle that looked too much like a Jeep. And it analyzes the "safe distance rule", an equitable principle that says that, once you're caught infringing someone else's trade dress, you shouldn't be allowed to change your design just enough to satisfy the law; you should have to make your product significantly more different, so that you don't benefit from your earlier wrongdoing.

None of this is funny.

When I started reading this post, after I realized it was about Jeeps and not M&M's, I took a quick run to the ruling and did a quick search (did not have time for a read). This search left me confused.

Wait, the M&M did not claim their vehicle had a 5-bar grille, not a 7-bar grille, so it was sufficiently different? Jeep is very touchy about their 7-bar grille.

[Tiredretiredlawyer]

https://www.msn.com/en-us/news/us/100-m ... smsnnews11

$100 million N.J. deli scheme leads to federal charges against a father and his son

The $100 million New Jersey deli, as Your Hometown Deli came to be known, was first brought to the public’s attention by investor David Einhorn in a letter to clients. CNBC reported further on the company, including by unearthing more details about the company’s then-CEO, Paul Morina, a legendary high school wrestling coach in southern New Jersey.

Patten, one of the men charged in the scheme, wrestled in high school with Morina. Prosecutors said Patten convinced the owners of the deli, which was established in 2014, to put it under the control of an umbrella company, called Hometown International.

“Unbeknownst to the deli owners, almost immediately after Hometown International was formed, Patten and his associates began positioning Hometown International as a vehicle for a reverse merger that would yield substantial profit to them,” prosecutors said in a release.

In 2019, Hometown International started selling shares on what’s known as the OTC Marketplace, where shares of small companies are traded.

“Shortly thereafter, Patten, Coker Sr., And Coker Jr. undertook a calculated scheme to gain control of Hometown International’s management and its shares from the deli owners,” prosecutors said. The men took similar actions to take control of another small company, E-Waste, prosecutors said. That company’s shares surged, too, even though it didn’t have any real business, according to CNBC reporting.

► Show Spoiler

Prosecutors said the tactics “artificially inflated” the values of Hometown International and E-Waste stock by 939% and 19,900%, respectively.

[bob]

The Onion(!) filed a SCOTUS amicus brief in Novak v. City of Parma.

Novak created a satirical Facebook account aimed at the city's police department. The city wasn't amused, and charged him with a state crime, which went to trial; Novak was acquitted. Novak then filed a federal civil-rights case against the city and its agents, but the 6th ultimately ruled the state actors enjoyed qualified immunity.

Hence The Onion's amicus brief supporting the First Amendment right to mock the government and the ability to seek damages when a government violates it. The brief's tone is a blend of humor and serious legal arguments.

My fave:

[W]ithout the capacity to fool someone, parody is functionally useless, deprived of the tools inscribed in its very etymology that allow it, again and again, to perform this rhetorically powerful sleight-of hand: It adopts a particular form in order to critique it from within. See Farah v. Esquire Magazine, 736 F.3d 528, 536 (D.C. Cir. 2013).

Thank you, once again, Farah, Klamyman, and Corsi.


The City's response to Novak's cert. petition presently is due October 28.

[KickahaOta]

The Onion(!) filed a SCOTUS amicus brief in Novak v. City of Parma.

Seriously. Stop what you're doing. Read that.

[northland10]

My fave:

[W]ithout the capacity to fool someone, parody is functionally useless, deprived of the tools inscribed in its very etymology that allow it, again and again, to perform this rhetorically powerful sleight-of hand: It adopts a particular form in order to critique it from within. See Farah v. Esquire Magazine, 736 F.3d 528, 536 (D.C. Cir. 2013).

I had a very loud LOL when I saw Farah v Esquire.

[Uninformed]

A well written brief I enjoyed reading.

(As it appears to be accepted that perhaps half of the citizenry is incapable of discerning what is real or true, I can see how a Court could justify affirming the Sixth Circuit’s ruling)

[Kriselda Gray]

The Onion(!) filed a SCOTUS amicus brief in Novak v. City of Parma.

That was interesting, though I'd love to know what the Latin paragraph says

[RTH10260]

The Onion(!) filed a SCOTUS amicus brief in Novak v. City of Parma.

That was interesting, though I'd love to know what the Latin paragraph says

Just there to impress you

Bona vacantia. De bonis asportatis. Writ of certiorari.
De minimis. Jus accrescendi. Forum non conveniens.
Corpus juris. Ad hominem tu quoque. Post hoc ergo
propter hoc. Quod est demonstrandum. Actus reus.
Scandalum magnatum. Pactum reservati dominii.

Good holidays. Of the goods taken away. Writ of notification From the smallest. The right to increase The forum is not appropriate. Body of law. To the man you too. After this, therefore because of this. That must be demonstrated. Actus reus. A great scandal. Reserved ownership agreement.

ps. everything a sovcit would like to quote if they knew someone to spend much money on for learning the magick words

[Kriselda Gray]

Thank you, RTH!