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	OPINION/ORDER Fulbruge III Clerk involve at least two fraudulent schemes involving con artists who are now tucked away in jail. The Bank argues it is entitled to the money it loaned the purchaser. Which is proceeds in CNG's possession. CNG argues that the Bank is not entitled to these proceeds because it has unclean hands. Even before the sale was finalized. Montgomery and Berkich's scam was discovered before the sale was finalized but not before considerable sums of money had been looted. 2 Meanwhile. $4.5 million of which was paid to CNG in the purchase of Finity and Fi Scrip. Which were in fact nonexistent. Were to be used as collateral for his Bank loan. CNG was. The Bank alleges that CNG knew or should have known that Wilson could not obtain financing legitimately. At issue before the district court were the remaining claims by the Bank against CNG for misrepresentation. The district court granted the motion and made the 1) there was no misrepresentation by CNG following oral findings: to the Bank. 3) there was no joint venture between CNG and Wilson that would make CNG liable for Wilson's conduct.
	OPINION/ORDER These matters are before the court on the petition for rehearing filed on behalf of Garfield and Kane Counties. We have determined to amend the original panel opinion on page 86. A copy of the amended opinion is attached to this order. The petition for panel rehearing is otherwise denied in all respects. Most of the transportation routes of the West were established under its authority. R.S. 2477 rights of way were an integral part of the congressional pro development lands policy. The statute thus had the effect of
	OPINION/ORDER Agreeing with the district court that her case does not present any genuine issues of material fact and that the defendants are entitled to judgment as a matter of law. Who is African American. Pleaded guilty to a felony charge of welfare fraud and was sentenced to 60 months' probation. Worth Services is a nonprofit organization that provides in home nurses and health aides to individuals in Western Michigan. The company is a member of the Spectrum Health Continuing Care Group. Worth's nurse aides also are contracted out to work at these Spectrum owned facilities. Beison Things were going well for Sherrills until December 13. She was scheduled to work back to back. Kimmel
	OPINION/ORDER Lominac contends that this sentence violates the prohibition against ex post facto laws because (1) § 3583(h) was enacted after he committed his original felonies and (2) this new section increases the punishment for his original crimes. 18 U.S.C. § 1029(a)(2) (1988).1 He was sentenced to forty one months of imprisonment and three years of supervised release for each offense. Less than a week before Lominac would have completed his entire sentence. (4) he failed to inform his employer that he was a convicted felon.2 The court revoked Lominac's release and sentenced him to serve six months in prison followed by thirty months of additional supervised release. Because this was Lominac's second violation of supervised release. Saying
	OPINION/ORDER Payne was sentenced to death in a Tennessee state court for the murder of Charisse Christopher and her daughter Lacie Christopher. His Eighth Amendment rights were violated by instruction on the heinous. Were violated. That he was denied the effective assistance of counsel. The Tennessee state court's rejection of Payne's challenge was contrary to clearly established United States Supreme Court precedent. Are excerpted from the opinion of the Tennessee Supreme Court. Defendant was found guilty of first degree murder of Charisse Christopher and her daughter. He was given the death penalty for each of the murders and thirty (30) years for the assault with intent to commit murder offense. Charisse Christopher was 28 years old. Bobbie Thomas had spent the week visiting her mother in Arkansas but was expected to return on Saturday. With the bag were three cans of Colt 45 malt liquor. Was the first officer to arrive at the Hiwassee Apartments. He was alone in a squad car when the disturbance call was assigned to Officers Beck and Brawell.
	OPINION/ORDER The plaintiffs filed this class action on behalf of all Florida citizens who have been convicted of a felony and have completed all terms of their incarceration. Parole but who are barred from voting under the state's felon disenfranchisement law.2 The defendants are members of Florida's Clemency Board.3 II. A felon who has completed his sentence may apply for clemency to have his civil rights restored. The requirement of a hearing is insufficient to support the plaintiffs' claim. We say nothing about whether conditioning an application for clemency on paying restitution would be an invalid poll tax. 2 Approximately seventy percent of the plaintiffs class is white. The Clemency Board is made up of the Governor of Florida and members of the Cabinet. Summary judgment is appropriate when
	OPINION/ORDER Robert Kannapel Sr. was shot and killed while working at an Indianapolis gas station. Robert Badelle was convicted of the murder by an Indiana jury in 1979 and sentenced to sixty years' imprisonment. Badelle's conviction and sentence were affirmed on direct appeal. This petition apparently remained pending for twelve years without substantial action by the Indiana court.1 An evidentiary hearing was finally convened in the fall of 1999. The denial was upheld on appeal. Badelle argues on appeal that he is entitled to habeas relief because the prosecution withheld evidence contrary to Brady v. Because his counsel was ineffective for failing to investigate and present the testimony of additional witnesses and for not sufficiently objecting to the admissibility of eyewitness identifications. Robert Kannapel Sr. and his son Robert Jr. were working together at a gas station in Indianapolis. Robert Sr. was primarily working in the garage repairing automobiles 1 The Indiana Court of Appeals noted without elaboration that the original petition for postconviction relief was filed on June 15.
	OPINION/ORDER We will affirm. The EPA concluded remedial action was necessary to protect human health. Was responsible for the lead contamination. Was long 3 since out of business. Alleging it was responsible for Price Battery's CERCLA liability as a successor in interest. Exide is General Battery's successor. The disputed issue is whether General Battery. Was a successor to Price Battery. The relevant aspects of the Price/General transaction are as follows. Price Battery was owned by a single shareholder. A seat on General's board of directors.1 At The only Price Battery asset nominally excluded from the transaction was its real property. When the deed was transferred to General for $1.00. 000 General Battery shares were valued at approximately $1 million and represented 4.537% of General's outstanding equity. William Price Sr.'s resulting stake in General Battery was comparable to that of the company's cofounders. Was required under the agreement to immediately change its name to Price Investment Company and to retain $150.
	97-7139 -- RICHARDSON V. MISSOURI PACIFIC RAILROAD CO. -- 08/09/1999 Violations of this statute are brought under FELA. The purpose of these provisions is to protect railroad employees by imposing
	OPINION/ORDER Were on the briefs. Were on the briefs. Were on the brief. Were on the brief for cross appellees Jack Lawn. Were on the brief for amici curiae International Human Rights Organizations and International Law Scholars. That Alvarez
	OPINION/ORDER Stanko's primary argument is that the district court1 erred in concluding that The Honorable Joseph Bataillon. Were convicted after a jury trial of multiple counts of violating the FMIA. Stanko sought a declaratory judgment that he was not prohibited from possessing firearms under § 922(g)(1) because his conviction fell within the § 921(a)(20)(A) exclusion. The district court reasoned that: (1) the exclusion was
	OPINION/ORDER Will & Emery. I A McKenzie and PeaceHealth are the only two providers of hospital care in Lane County. That the relevant market in this case is the market for primary and secondary acute care hospital services in Lane County. Primary and secondary acute care hospital services are common medical services like setting a broken bone and performing a tonsillectomy. McKenzie's sole endeavor is McKenzie Willamette Hospital. The largest of PeaceHealth's three facilities is Sacred Heart Hospital. It is necessary to appreciate the structure of the market in which this case arises. The market for hospital services and medical care is complex. Insurers are usually commercial health insurance companies that seek to buy medical services from hospitals on the best terms possible. The price agreed upon is often referred to as a
	OPINION/ORDER It is an authority constrained by no less a power than that of the People themselves. The constitution is written.
	OPINION/ORDER Except for recipients who are blind. Unless they fall within one of the statutory groups. 2 Plaintiffs have never challenged the statute's elimination of the DME program. Are not limited to: Prosthetics.
	OPINION/ORDER Were barred by Michigan's three year statute of limitations. That his arrest was supported by The Honorable Richard Mills. In light of our conclusion that the claims against Perry were not time barred. Because the award amount was not apportioned among the three defendants. The Wolfes were under investigation for a series of larcenies committed in Livingston County. The Wolfes were suspected of involvement in the theft of two hundred bales of hay on August 19. A fraudulent insurance claim involving residential windows.1 The police investigation into the various larcenies was headed by Detective Perry. Van Patten informed Perry that one night in August 1996 he was awakened by Senior at half past midnight and told to get dressed and get in Senior's truck. Were driving a separate truck. Where two wagons filled with hay were located. Van Patten stated that he was so upset about stealing the hay that he was unable to drive and therefore. Where they were discovered the next day. Van Patten stated that he believed both Senior and Junior were carrying weapons that night and therefore.
	USA V. OAKAR MARY ROSE
	OPINION/ORDER We have substituted Attorney General Alberto Gonzales for former Attorney General John Ashcroft as the respondent in this case. Creating a new category of 'removal' proceedings that largely replaces what were formerly exclusion proceedings and deportation proceedings.
	OPINION/ORDER It is ORDERED that the motion be granted in part and denied in part. It is FURTHER ORDERED that the opinion in United States v. After the comma insert
	OPINION/ORDER We have substituted Attorney General Alberto Gonzales for former Attorney General John Ashcroft as the respondent in this case. Creating a new category of 'removal' proceedings that largely replaces what were formerly exclusion proceedings and deportation proceedings.
	OPINION/ORDER Controlling shareholders are liable under section 20(a) of the 1934 Act. Defendants in this case are America West. The shareholders were Defendants TPG Partners. Coulter was Director and Vice President of TPG and Director of America West. Schifter was Vice President of TPG and Director of America West. The following Defendants were officers and/or directors of America West: William A. The following Defendants were outside directors of America West: Stephen F. Were involved in the reorganization plan. Although the economic rights were identical between the two. The facts are presented in the light most favorable to the Plaintiffs. We also consider documents submitted by Defendants that were referenced in the complaint and whose authenticity has not been questioned. That these nine were chosen solely by TPG and Continental. TPG and Continental allegedly chose directors who were favorable to their interests. Was appointed a director of America West and served on its Executive Committee. Was also appointed to the Board of Directors and served on the Compensation Committee.
	OPINION/ORDER The full outstanding balance of the mortgage is governed by the antimodification clause. Whether the antimodification clause applies to a second or junior mortgage if that mortgage is wholly unsecured by any remaining value in the residence.1 1. The second mortgage is now deemed wholly unsecured in 2 In interpreting Nobelman the Bankruptcy and District Courts both concluded that the second mortgage on the McDonalds' residence is subject to the antimodification clause. Even if the value of their home is less than the outstanding balance of the first mortgage. We will reverse. In the Bankruptcy Court the parties purportedly entered into a stipulation of facts specifying that the outstanding balance of the first mortgage is greater than the value of the McDonalds' home. Asserted that their
	OPINION/ORDER We conclude that there is no constitutional infirmity in the statute's provisions regarding active peace officers. We conclude that each of the three additional constitutional claims asserted by plaintiffs on appeal is without merit. The immediate cause of the AWCA's enactment was a random shooting earlier that year at the Cleveland Elementary School in Stockton. Where three hundred pupils were enjoying their morning recess. Five children aged 6 to 9 were killed. One teacher and 29 children were wounded. Was the first legislative restriction on assault weapons in the nation. Was the model for a similar federal statute enacted in 1994. So that the weapon will continue to reload and fire continuously so long as the trigger is depressed. Only one bullet is fired when the user of a semi automatic weapon depresses the trigger. Another is automatically reloaded into the gun's chamber. 27 C.F.R. § 178.11 (defining semiautomatic weapons). LOCKYER restrictions on the use of weapons that are registered pursuant to its provisions.
	OPINION/ORDER The district court found the underlying deportation order to be invalid because the immigration judge (
	OPINION/ORDER We are confronted with the task of interpreting several provisions of the Class Action Fairness Act of 2005 (
	OPINION/ORDER The resulting product is smoke that includes both carbon black and waste gases. The carbon black is separated from the gases. Formed into small CSRC's relationship with CCC was the subject of some dispute during this litigation. CSRC does not challenge the district court's finding that it is CCC's parent corporation. The separating process occurs in stages using filters located in what is known in the industry as bagfilter compartments. If everything is working perfectly. The remaining gasses are expelled through exhaust towers. Continental installed a thermal oxidizer for the purpose of combusting any carbon black particles that escape either production unit before the air emanating from the bagfilter compartments is expelled. All of whom are Georgia citizens. Emotional distress in connection with carbon black contamination of both of his properties. 2 Some of the properties are only approximately a ½ mile from Continental's Phenix City 4 plant. Action Marine alleges that the carbon black damaged its inventory of boats to such an extent that the company was forced to sell those it could at a loss.
	OPINION/ORDER Assuming we have jurisdiction. That in some respects the district court's pretrial orders were improper. That the government had initially stated it would have been prepared to try the case in September 2005. It cannot now credibly claim that it is necessary to continue adding witnesses to an already unwieldy list.
	OPINION/ORDER To partially enjoin entry of the judgment on the ground that the state court award was inconsistent with the settlement reached in a prior nationwide class action involving L P and over which the court retained jurisdiction. Settled shortly after it was filed. Class claims related to the failure of Inner Seal Siding were released.1 L P also agreed to The settlement agreement required L P to make a minimum payment of $275. Qualified claims were paid from that fund and class members were barred from litigating any claim related to the failure of Inner Seal Siding for a period of four years from the date of the final order and judgment. At which time the claims administrator was ordered to notify L P if the settlement fund proved insufficient to satisfy all approved claims filed before January 1. L P was directed to advise class counsel whether it intended to satisfy the unfunded claims. It was required to make additional payments
	OPINION/ORDER Is hereby amended as follows: 1 At Slip Op. at 7. We conclude that there is no constitutional infirmity in the statute's provisions regarding active peace officers. LOCKYER 1119 three additional constitutional claims asserted by plaintiffs on appeal is without merit. The immediate cause of the AWCA's enactment was a random shooting earlier that year at the Cleveland Elementary School in Stockton. Where three hundred pupils were enjoying their morning recess. Five children aged 6 to 9 were killed. One teacher and 29 children were wounded. Was the first legislative restriction on assault weapons in the nation. Was the model for a similar federal statute enacted in 1994. So that the weapon will continue to reload and fire continuously so long as the trigger is depressed. Imposes significant restrictions on the use of weapons that are registered pursuant to its provisions. Id. § 12285(c).3 Approximately forty models of firearms are listed in the statute as subject to its restrictions. Only one bullet is fired when the user of a semi automatic weapon depresses the trigger.
	SM BUS TELECOM V. FCC Were on brief.
	OPINION/ORDER That there was insufficient evidence to support their convictions. That certain evidence was improperly admitted against them. They each were charged with three counts of mail fraud. Curry Robinson was charged with six counts of money laundering. The defendants stated in letters to investors that Case Oil was an international business that had liquid assets of more than $40 million and contracts in excess of $250 million.2 They also claimed that Case Oil had contracts with several countries to construct chemical plants. The facts are presented in the light most favorable to the Government. 2 The letters written to prospective investors were signed on different occasions in each defendant's name. Included various representations such as the following: Case Oil Corporation is a Corporation in good standing with the State of Virginia and is licensed to do business both. Case is currently under contract by several countries to construct Urea and petro chemical plants. We are also suppliers of jet fuel oil to several major air lines.
	OPINION/ORDER The medical malpractice claim was time barred. Roberts did not learn that her only remaining ovary had been removed until approximately September 1994 when she was treated by a different Dallas. Both of the named defendants were based in Arkansas. The case was transferred to the United States District Court for the Western District of 2 Arkansas because of improper venue and the
	OPINION/ORDER Was convicted of first degree murder in violation of Mich. Burton was sentenced to life imprisonment for his first degree murder conviction and two years' imprisonment for the firearm charge. Testified that Burton retrieved a firearm from the residence and said he was going to kill McClayton. Several people were standing in the parking lot near a food truck selling chicken. Which was hot and smelled of smoke. Were watching television when a news broadcaster announced that Burton was the shooter in the McClayton incident. Burton said he was returning to Detroit. Burton was subsequently arrested in Detroit in December 1994. Was assigned to represent Burton. The motion was not heard until February 22. Which was only five days before Burton's scheduled trial date and was the last day when pre trial motions would be heard. Burton was not in attendance at the motion hearing. The case was reassigned to Judge William Collette. That Warshaw was no longer available because Burton lacked the funds to retain Warshaw and because a disagreement with Warshaw had since developed.
	OPINION/ORDER He is serving a life sentence in prison without parole. Which is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (
	CANDLE CORPORATION OF AMERICA, ET AL. V. U.S. INTERNATIONAL TRADE COMMISSION, ET AL. Argued for plaintiff appellant. With him on the brief was Joshua A. Et al. With him on the brief were Peter D. Deputy Director. Of counsel on the brief was Ellen C. DC. Of counsel was Lucius B. Et al. With him on the brief were Terence P. Muench Kreuzer Candle Company. With him on the brief was Edward M. Although it was listed among OTHER U.S. Antidumping duties were collected.
	98-2087 -- U.S. V. CHARLEY -- 05/07/1999 Circuit Judge.
	OPINION/ORDER Circuit Judge: The primary issues presented in this appeal from the District Court's order denying preliminary injunctive relief are whether the Free Speech and Free Exercise Clauses of the First Amendment allow the Borough of Tenafly. Because there is no evidence that the acts in question are expressive. Because the other requirements for injunctive relief are satisfied. In practice they have often done so. House number signs nailed to utility poles in plain view are 1. Our description of the facts is based on our independent review of the record because. Local churches are tacitly allowed to post permanent directional signs bearing crosses on municipal property. Orange ribbons were affixed to utility poles
	OPINION/ORDER We conclude that this procedure was not reversible error and we will affirm on the merits of the immunity ruling. Was fatally shot by a Homestead Borough patrolman in the course of apprehension by the police. Plaintiff brought suit pursuant to 42 U.S.C. § 1983 alleging that her husband's death was the result of constitutional violations by Officer Frank Snyder. The tragic death of Gilbert Carswell was the culmination of months of domestic discord. A plaintiff must have a reasonable fear of bodily injury to obtain a PFA. One of the typical hallmarks of a PFA is the prohibition on contact between the plaintiff and defendant. 23 Pa. A defendant who violates a PFA and is convicted of indirect criminal contempt is subject to imprisonment of up to six months. 23 Pa. The police were called to the home when the husband struck the plaintiff in the face with his fist. The police were summoned because the husband had once again violated the PFA. A felony warrant was issued for his arrest. Were unsuccessful in attempts to capture him.
	OPINION/ORDER OTSI is an independent contractor that supplies experienced personnel. The stated purpose of which was to
	OPINION/ORDER Were on brief. 566 (1999) [Lower Channel Reconsideration Order]. 2 Bandwidth is
	98-2087 -- U.S. V. CHARLEY -- 08/27/1999 Circuit Judges.
	OPINION/ORDER Circuit Judge: This case involves an array of antitrust law challenges to what we conclude are reasonable and unremarkable business practices. (Paladin) is a Montana corporation that marketed natural gas to industrial customers within Montana and other western states.1 Paladin obtained natural gas from producers in Canada and Montana and arranged for the gas to be transported to its customers through a pipeline owned by the defendant. Our statement of facts is adapted from the district court's description. Both parties stipulate that the district court's description is accurate. 1 PALADIN ASSOCIATES. MONTANA POWER CO. 6225 Gas produced in Canada is delivered into MPC's pipeline via the NOVA Corporation's pipeline in Alberta. Gas produced in Montana is delivered into MPC's pipeline via another pipeline in north central Montana. Some of the gas transported interstate across MPC's pipeline is delivered into the Colorado Interstate Gas Company (CIG) pipeline at the