DISCLAIMER:  The following unofficial case summaries are prepared by the clerk's office
                        as a courtesy to the reader. They are not part of the opinion of the court.
153592P.pdf   08/14/2017  United States  v.  Gerald Wayne LeBeau
   U.S. Court of Appeals Case No:  15-3592
                          and No:  15-3653
   U.S. District Court for the District of South Dakota - Rapid City    
   [PUBLISHED] [Kelly, Author, with Loken and Colloton, Circuit Judges] 
   Criminal case - Criminal law and sentencing. The district court did not 
   clearly err in determining that defendant Gerald LeBeau consented to 
   searches of his hotel room and car; based on the totality of the 
   circumstances, the consent was voluntary; assuming that the officers' 
   initial entry into Gerald's room was unconstitutional, Gerald's voluntary 
   consent to the search of his car was the product of free will sufficient 
   to purge the taint of the agents' presumed illegal entry in the hotel 
   room; as a result, the doctrine of the fruit of the poisonous tree does 
   not compel suppression of the evidence found in the car; no issue was 
   raised in the district court concerning the seizure of Gerald's wallet and 
   keys, and an issue raised for the first time on appeal would not be 
   considered; a reasonable person could conclude from Gerald's statement 
   that he was not unequivocally requesting the right to proceed pro se, and 
   the district court did not violate his right to represent himself by 
   proceeding with appointed counsel; the proposed testimony Gerald sought to 
   introduce through certain witnesses he wanted to subpoena was not relevant 
   or admissible, and the district court did not err in quashing the 
   subpoenas for these witnesses; government's failure to preserve certain 
   video surveillance recordings did not require dismissal of the case 
   because the evidence had no exculpatory value; no error in admitting 
   jailhouse recordings of Gerald's phone calls as the government laid a 
   proper foundation for their admission;Gerald's sentence did not exceed the 
   statutory maximum, and the district court's finding of certain sentencing 
   facts did not violate Gerald's rights; the district court did not err in 
   admitting evidence of Neil LeBeau's prior drug conviction as the 
   conviction was relevant to his state of mind - namely, his intention to 
   enter into the charged conspiracy; no error in admitting jailhouse 
   recordings of Neil's conversations; no error in denying Neil's motion to 
   sever his case from Gerald's as Gerald's statements on the jailhouse 
   recordings did not implicate the Confrontation Clause. 
  
162633P.pdf   08/14/2017  United States  v.  Jade Oldrock
   U.S. Court of Appeals Case No:  16-2633
   U.S. District Court for the District of North Dakota - Fargo    
   [PUBLISHED] [Smith, Author, with Colloton and Kelly, Circuit Judges] 
   Criminal case - Criminal law. In a prosecution for aggravated sexual abuse 
   of a child, the district court did not err in admitting evidence of a 
   similar assault on another child victim as the evidence was relevant and 
   its probative value was not outweighed by unfair prejudice under Rule 403; 
   testimony by forensic examiner concerning the interview process was 
   admissible under Rule 401 as it provided relevant information which helped 
   the jury understand the investigative process; no error in permitting the 
   examiner to testify as a lay witness regarding the forensic process and 
   her personal opinion of the victim's interview; no error in denying a 
   mistrial after the examiner testified that she recommended trauma 
   counseling, no contact with defendant and a medical exam after conducting 
   the exam; while the testimony went beyond the limits the district court 
   had set for the witness's testimony, the court immediately struck the 
   answer and instructed the jury to disregard it, and there is no basis for 
   concluding the jury did not follow the court's directions. Judge Kelly, 
   dissenting. 
  
163093P.pdf   08/14/2017  BNSF Railway Co.  v.  LABR
   U.S. Court of Appeals Case No:  16-3093
   Petition for Review of an Order of the Department of Labor (except OSHA)    
   [PUBLISHED] [Loken, Author, with Wollman, Circuit Judge, and Nelson, 
   District Judge] 
   Petition for Review - Administrative Review Board. Where the railroad 
   discovered through discovery in an employee's FELA action that he had made 
   dishonest statements in his employment application and medical 
   questionnaire, the ALJ erred in finding that the employee's termination 
   violated the Federal Rail Safety Act; the ALJ's conclusion that the filing 
   of an injury report "set off a chain of events" which led to his 
   termination and was therefore improper retaliation for engaging in a 
   protected activity is contrary to judicial precedent construing the 
   causation element of a Federal Rail Safety Act retaliation claim; to hold 
   that protected activity is a contributing factor to an adverse action 
   simply because it ultimately led to the employer's discovery of misconduct 
   confuses a cause with proximate cause; further absent sufficient evidence 
   of intentional retaliation, a showing that protected activity initiated a 
   series of events leading to an adverse action does not satisfy the Federal 
   Rail Safety Act's contributing factor causation standard; while the 
   Administrative Review Board did not rely on the ALJ's chain-of-events 
   causation theory, it affirmed based on findings which were either 
   non-existent or insufficient to support the Board's contributing factor 
   and affirmative defense rulings. Vacated and remanded for further 
   proceedings. 
  
163238P.pdf   08/14/2017  United States  v.  Rex Furman
   U.S. Court of Appeals Case No:  16-3238
   U.S. District Court for the District of Minnesota - St. Paul    
   [PUBLISHED] [Wollman, Author, with Arnold and Gruender, Circuit Judges] 
   Criminal case - Criminal law and sentencing. The evidence was sufficient 
   to show defendant produced the child pornography charged in the 
   indictment; defendant understood that he was placing the pornography in 
   folders shared over a peer-to-peer network and a reasonable jury could 
   find he knowingly distributed child pornography; no error in admitting 
   into evidence a 1999 conviction for first-degree sexual conduct as the 
   conduct was similar and was relevant to show intent and motive as well as 
   a propensity to sexually assault young female family members; mandatory 
   life sentence required by 18 U.S.C. Sec. 3559(e) for repeat child sex 
   offenders is not a violation of the Eighth Amendment. 
  
163613P.pdf   08/14/2017  David Hosea  v.  City of St. Paul
   U.S. Court of Appeals Case No:  16-3613
   U.S. District Court for the District of Minnesota - Minneapolis    
   [PUBLISHED] [Smith, Author, with Colloton and Kelly, Circuit Judges] 
   Civil case - Civil rights. In this excessive force suit, the district 
   court did not err in granting the defendant officers' motion for summary 
   judgment based on qualified immunity on plaintiff's Fourth Amendment 
   claims; on the information available to them, the officers had probable 
   cause to arrest defendant for domestic assault and were entitled to 
   qualified immunity on plaintiff's unlawful-arrest claim; the force used to 
   effect plaintiff's arrest did not violate his Fourth Amendment rights as 
   it was objectively reasonable. Judge Kelly, concurring in part and 
   dissenting in part. 
  
164000P.pdf   08/14/2017  Travelers Property Casualty  v.  Christopher A. Klick
   U.S. Court of Appeals Case No:  16-4000
   U.S. District Court for the District of Minnesota - Minneapolis    
   [PUBLISHED] [Colloton, Author, with Smith, Chief Judge and Kelly, Circuit 
   Judge] 
   Civil case - Insurance. Where Klick suffered carbon monoxide poisoning 
   while aboard a fishing boat manufactured by Travelers' insured, the 
   pollution exclusion in the policy issued to the boat manufacturer applied 
   and excluded the incident from coverage. 
  
164169U.pdf   08/14/2017  Raymond Atimbaneme  v.  Jefferson B. Sessions, III
   U.S. Court of Appeals Case No:  16-4169
   Petition for Review of an Order of the Board of Immigration Appeals    
   [UNPUBLISHED] [Per Curiam - Before Colloton, Murphy and Kelly, Circuit 
   Judges] 
   Petition for Review - Immigration. The BIA did not abuse its discretion by 
   denying petitioner's motion to reopen. 
  
164367U.pdf   08/14/2017  Tom Clowers  v.  Kelly Crandduck
   U.S. Court of Appeals Case No:  16-4367
   U.S. District Court for the Western District of Arkansas - Fayetteville    
   [UNPUBLISHED] [Per Curiam - Before Colloton, Murphy and Kelly, Circuit 
   Judges] 
   Civil case - Civil rights. Dismissal of Section 1983 action affirmed 
   without comment.