[PUBLISHED] [Loken, Author, with Smith, Chief Judge, and Wollman, Circuit Judge] Criminal case - Criminal law. The district court did not commit prejudicial error when it denied defendant's motion to dismiss a Section 924(c) firearm charge the government had dropped in the second superseding indictment, a motion that was pending when defendant pleaded guilty to that charge in the fourth superseding indictment; proceeding by a superseding indictment that eliminates charges, rather than by requesting leave of court for Fed. R. Crim. P. 48(a) dismissal of those charges, in not, without more, prosecutorial misconduct; defendant's allegation that the government circumvented Rule 48(a) to induce his plea to Hobbs Act robbery is not supported by the record; defendant failed to demonstrate prejudice as he knew when he pleaded guilty to the Hobbs Act robbery that the government might reinstate the firearms charges omitted from the second superseding indictment and when the third superseding indictment including the firearms charge was filed, he did not move to withdraw his plea.
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Opinions
[PUBLISHED] [Smith, Author, with Loken and Gruender, Circuit Judges] Civil case - Employment discrimination. Defendant established a legitimate, non-discriminatory ground for plaintiff's termination from its residency program - an error affecting patient safety - and plaintiff failed to show the stated ground was a pretext for age discrimination; plaintiff failed to make a prima facie case of discrimination under the ADA as there was no genuine issue of material fact as to whether defendant regarded her as disabled during the relevant time period preceding her termination; plaintiff failed to make a prima facie case of ADA retaliation.
[PUBLISHED] [Benton, Author, with Gruender and Grasz, Circuit Judges] Civil case - Insurance. CSC was an additional insured on the general liability policy maintained by its concrete subcontractor; the concrete subcontractor's insurer was estopped from asserting grounds for refusal of coverage other than those stated in its iintial denial letter; whether the denial of coverage was in bad faith is a disputed issue of material fact, and summary judgment was not appropriate on CSC's bad faith claim; reversed and remanded for further proceedings.
[PUBLISHED] [Melloy, Author, with Smith, Chief Judge, and Loken, Circuit Judge] Civil case - Contracts. Plaintiffs adequately pleaded a breach of contract based on an oral agreement under which plaintiff Kathleen was to receive commissions on the purchase of life insurance policies by her client; there was consideration for the agreement in that defendant was to receive an override commission upon sale of the insurance products and plaintiff agreed not to take her client's insurance business to another agent; plaintiffs also pleaded the basic elements of a claim for unjust enrichment and a claim for breach of fiduciary duty; further, to the extent plaintiffs' claims for fraud or negligent misrepresentation related to the sale of life insurance products to Kathleen's client, the claims were sufficient to survive a motion to dismiss; the order dismissing these claims is reversed and the matter is remanded for further proceedings.
[PUBLISHED] [Per Curiam - Before Loken, Gruender, and Grasz, Circuit Judges] Criminal case - Sentencing. The district court erred in imposing an enhancement under Guidelines Sec. 2K2.1(b)(3)(B) for possessing a destructive device as the sawed-off shotgun in question - a .410 caliber shotgun - did not have a large enough bore diameter to qualify for the enhancement; no error in imposing an enhancement under Guidelines Sec. 2K2.1(b)(6)(B) for possessing a handgun in connection with another offense. Reversed and remanded for resentencing without the destructive device enhancement.
[UNPUBLISHED] [Per Curiam - Before Colloton, Kelly, and Erickson, Circuit Judges] Civil case - Employment discrimination. While plaintiff's Title VII and Arkansas Civil Rights Act claims were properly dismissed as to the individual defendant since individual employees are not personally liable under Title VII or ACRA, plaintiff did state a Title VII claim against the company because he plausibly alleged its policy of not hiring, or limiting the hiring of, applicants with certain felony convictions had a disparate impact of black applicants; to the extent plaintiff stated a Title VII claim, he also stated an ACRA claim. Judge Colloton, concurring in part and dissenting in part.
[PUBLISHED] [Grasz, Author, with Colloton and Gruender, Circuit Judges] Criminal case - Sentencing. Assuming without deciding that the government knowingly intruded into the attorney-client relationship when officers seized privileged documents from defendant's jail cell, he has the burden of proving prejudice, and he failed to demonstrate any particular prejudice or substantial threat of prejudice to his sentencing proceedings; the district court's offer of additional time to prepare for the sentencing hearing was an adequate shield from prejudice, given the relatively short-term deprivation of materials and the fact that none of the evidence derived from the search was used at sentencing; under these circumstances, no Sixth Amendment violation has been shown; the district court did not err calculating defendant's guidelines range as two of his prior convictions were not outside the fifteen-year period for prior felonies; state offenses were separate offenses for sentencing purposes because they were separated by an intervening arrest; defendant's Iowa drug convictions were controlled substance convictions for purposes of applying Guidelines Sec. 2K2.1(a)(2); the district court did not abuse its discretion by denying defendant's request for a downward variance based on over-represented criminal history and did not err in weighing the 3553(a) factors; defendant's sentence was substantively reasonable.
[PUBLISHED] [Arnold, Author, with Smith, Chief Judge, and Stras, Circuit Judge Civil case - Americans with Disabilities Act. Plaintiff's allegations concerning FMLA claims were sufficient to survive a Rule 12(b)(6) motion, and the district court erred in dismissing the claims; the district court correctly held that plaintiff's ADA claims concerning an accommodation and discrimination were unexhausted and should be dismissed; however, plaintiff adequately alleged in his administrative charge that he was terminated because of his disability, and that termination claim was exhausted.
[PUBLISHED] [Smith, Author, with Wollman and Loken, Circuit Judges] Criminal case - Criminal law and sentencing. The district court did not err in admitting eight government exhibits showing defendant with cash and guns, discussing his possession of the firearm used in the charged offenses and showing his contact with his co-defendant on the day of the robbery and also his location near the phone taken in the carjacking; challenge to instruction on carjacking rejected; instructions defining "carried a firearm" were not erroneous; evidence was sufficient to support defendant's convictions for carjacking, carrying a firearm in relation to a crime of violence, and possession of a firearm by a prohibited person; no error in imposing an enhancement under Guidelines Sec. 2K2.1(b)(1) for possession of between 3 and 7 firearms; nor did the court err in imposing an enhancement under Guidelines Sec. 2B3.1(b)(5), the carjacking offense characteristic, as Sec. 2B3.1 and the corresponding base level of 20 did not fully account for defendant's conduct; imposition of the enhancement was not double counting.
[PUBLISHED] [Schermer, Author, with Nail, Chief Judge, and Saladino, Bankruptcy Judge] Bankruptcy Appellate Panel. The bankruptcy judge did not err in denying debtors' motion to impose sanctions against Ms. Anderson, the lawyer for the party who purchased debtors' property at a foreclosure sale, based on her act of moving for relief from the automatic stay after debtors filed for Chapter 13 relief; the bankruptcy court judge did not err in denying debtors' fifth motion for disqualification or recusal. Debtors' appeal is frivolous, and the court grants Anderson's motion for sanctions and awards her $3,000.