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.
142050P.pdf 08/27/2015 United States v. STABL U.S. Court of Appeals Case No: 14-2050 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Wollman, Author, with Smith and Benton, Circuit Judges] Civil case - Clean Water Act. In an enforcement action by the United States and the State of Nebraska against STABL for violations of the Clean Water Act and the Nebraska Environmental Act, the district court did not err in finding that the company's effluent discharges exceeded its permit limits and its legal duty to monitor the discharge to avoid violations; the district court did not err in admitting into evidence the discharge monitoring reports STABL had to certify as the documents were nonhearsay adoptive admissions; further, by failing to respond to the government's requests for admissions regarding the discharge monitoring reports, STABL admitted their authenticity and that they were what they reported to be - STABL's discharge monitoring reports signed by its general manager; when a defendant's own discharge monitoring reports demonstrate discharge in excess of permit limits, they constitute sufficient evidence to meet a Clear Water Act plaintiff's burden of production on liability and may be sufficient, in some circumstances, to entitle plaintiff to summary judgment; a defendant who wishes to challenge the accuracy of the laboratory results bears a heavy burden to impeach its own reports and cannot meet that burden by simply pointing to potential error without specific evidence showing the error likely resulted in overreporting of pollutant levels; here, defendant failed to impeach the results; testimony by EPA compliance officer was primarily related to his industry experience rather than expert knowledge and he did not have to disclosed as an expert; no error in admitting testimony from the government's expert on economic benefit as any delay in the submission of his report was harmless; the district court did not err in rejecting STABL's challenge to the accuracy of the city's monitoring records as it was under an obligation to ensure that the sampling data was accurate and representative; because STABL's challenges to witness testimony and the admissibility of the discharge monitoring reports fail, and because it had not sufficiently impeached the accuracy of the reports and monitoring records, the evidence would have allowed the district court to grant judgment as a matter of law on the number of effluent-limitations violations and any error in denying a jury trial was harmless. 143006P.pdf 08/27/2015 Security National Bank v. Jones Day U.S. Court of Appeals Case No: 14-3006 U.S. District Court for the Northern District of Iowa - Sioux City [PUBLISHED] [Murphy, Author, with Colloton and Kelly, Circuit Judges] Civil case - Attorney Discipline. Following a jury verdict for the plaintiff in an action alleging Abbott Lab's baby formula caused permanent brain damage to an infant, the district court directed defendant's counsel to show cause why she should not be sanctioned under Fed. R. Civ. P. 30(d)(2) for obstructing each deposition in which she participated. After considering her response, the district court ordered her to produce a discovery training video dealing with the impropriety of form objections, witness coaching and excessive interruptions and to distribute the video to most of the attorneys in her national law firm. The sanctions order is vacated. The plain language of Rule 30(d)(2) does not impose a limit on the district court's ability to impose sanctions on its motion; with few exceptions, sanctions for discovery misconduct should be imposed within a time frame that has a nexus to the behavior sought to be deterred, and the primary purpose of the rule was not well served by the post hoc procedures employed here where as much as two years had passed since the deposition conduct; further, no advance notice was given of the unusual nature of the sanctions being considered; so unusual a sanction as the one imposed here requires the district court to give particularized notice of the nature of the sanction it has in mind so that counsel has a meaningful opportunity to respond; assuming there was sanctionable conduct here, defense counsel has already suffered damage to her her reputation, as well as inevitable financial and personal costs, and no deterrent purpose would be served by remanding the case for further proceedings; the sanctions order is vacated. 143136P.pdf 08/27/2015 United States v. George Thunderhawk U.S. Court of Appeals Case No: 14-3136 U.S. District Court for the District of North Dakota - Bismarck [PUBLISHED] [Loken, Author, with Bye and Kelly, Circuit Judges] Criminal case - Criminal law and sentencing. The officer's statement that defendant would not be arrested at the end of the interview did not render defendant's confession involuntary as it was not the type of coercive police activity that would overbear defendant's will; Missouri v. Siebert does not apply as defendant was not in custody at the time he made his incriminating statements; the district court did not err in instructing the jury that in reaching their verdict they were permitted to draw "such reasonable inferences as you feel are justified in light of experience and common sense;" challenges to government's closing argument rejected as the challenged statements correctly stated the elements of the offense and did not argue that defendant had the burden of proof on his innocence; no error in denying a reduction for acceptance-of-responsibility; Apprendi-based challenge to the restitution order covering victim's mental health rejected; sentence was not substantively unreasonable. 143269U.pdf 08/27/2015 Raymundo Duran-Barraza v. Eric H. Holder, Jr. U.S. Court of Appeals Case No: 14-3269 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Loken, Bowman and Gruender, Circuit Judges] Petition for Review - Immigration. The court lacks jurisdiction to review the discretionary denial of cancellation of removal and the petition for review is denied. 151670U.pdf 08/27/2015 United States v. Antoine Clemons U.S. Court of Appeals Case No: 15-1670 U.S. District Court for the Southern District of Iowa - Davenport [UNPUBLISHED] [Per Curiam - Before Loken, Bowman and Gruender, Circuit Judges] Criminal case - Criminal law and Sentencing. Anders case. The sentence imposed was not substantively unreasonable; the government did not breach the plea agreement by seeking a section 851 enhancement; challenge to the special supervised release conditions rejected as the conditions were reasonably related to the appropriate sentencing factors and the unchallenged material in the PSR describing defendant's history and characteristics; guilty plea foreclosed a challenge to the sufficiency of the evidence.