Justia U.S. 8th Circuit Court of Appeals Opinion Summaries

In 2003, Fraser, a citizen of Canada, married a U.S. citizen. In 2006, his wife filed an I-130 Petition to adjust Fraser’s status based on their marriage; Fraser filed an I-485 Application to Register Permanent Residence or Adjust Status. The petition and application were granted in 2007. Weeks later, the Department of Homeland Security determined that Fraser’s application had been approved in error. DHS believed that in 1991, Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking. Fraser appeared before an Immigration Judge. The government provided a Trial Disposition from Canada dated March, 1991, plus an Information, dated April, 1990, which identified the offense charged as possession of cocaine for the purpose of trafficking. The Trial Disposition did not identify the offense to which Fraser pleaded guilty and for which he was sentenced. The IJ concluded that the documentation presented, in combination, proved by clear and convincing evidence that Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking and that Fraser was inadmissible at the time of his adjustment of status, 8 U.S.C. 1182(a)(2)(A)(i)(II) and deportable under 8 U.S.C. 1227(a)(1)(A). The BIA and Eighth Circuit dismissed Fraser’s appeals. View "Fraser v. Lynch" on Justia Law

In 2003, Fraser, a citizen of Canada, married a U.S. citizen. In 2006, his wife filed an I-130 Petition to adjust Fraser’s status based on their marriage; Fraser filed an I-485 Application to Register Permanent Residence or Adjust Status. The petition and application were granted in 2007. Weeks later, the Department of Homeland Security determined that Fraser’s application had been approved in error. DHS believed that in 1991, Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking. Fraser appeared before an Immigration Judge. The government provided a Trial Disposition from Canada dated March, 1991, plus an Information, dated April, 1990, which identified the offense charged as possession of cocaine for the purpose of trafficking. The Trial Disposition did not identify the offense to which Fraser pleaded guilty and for which he was sentenced. The IJ concluded that the documentation presented, in combination, proved by clear and convincing evidence that Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking and that Fraser was inadmissible at the time of his adjustment of status, 8 U.S.C. 1182(a)(2)(A)(i)(II) and deportable under 8 U.S.C. 1227(a)(1)(A). The BIA and Eighth Circuit dismissed Fraser’s appeals. View "Fraser v. Lynch" on Justia Law

Pierre and three co-defendants were charged, in the Minnesota district court, with conspiracy to defraud the government, 18 U.S.C. 286, by submitting 1066 false tax returns and claiming undeserved tax refunds of about $6.9 million. They used social security numbers belonging to Florida prisoners on returns and, allegedly, incorporated fictitious businesses in Minnesota, opened bank accounts on behalf of those businesses, and collected tax refunds in those accounts. The indictment also charged Pierre with money laundering, 18 U.S.C. 1957. Before the Minnesota indictment was returned, Pierre and two co-defendants were indicted in Florida. Pierre’s Florida codefendants were not mentioned in the Minnesota indictment. The Florida indictment charged conspiracy to defraud the United States, 18 U.S.C. 286, conspiracy to use unauthorized access devices (section 1029(b)(2)), use of unauthorized access devices (section 1029(a)(2)), and aggravated identity theft (section 1028A(a)(1)). The indictment also charged Pierre with possession of 15 or more unauthorized access devices (i.e., debit cards and social security numbers), 18 U.S.C. 1029(a)(3). A jury convicted Pierre on all counts charged in Florida. Pierre unsuccessfully moved three times to dismiss his Minnesota indictment on double jeopardy grounds. The Eighth Circuit affirmed, holding that the prior conviction did not encompass either the same conspiracy or the money laundering offense charged in Minnesota. View "United States v. Pierre" on Justia Law

Poynter operated an Original Issue Discount (OID) scheme, under which taxpayers falsely list large amounts of OID interest income from municipal bonds and certificates of deposit and corresponding amounts of withholding and claim large tax refunds. Johnson recruited clients and paid Poynter 50 percent of the fee. Her contract included a statement that Poynter’s material was not legal or tax advice. By signing the contract, Johnson agreed that she was not affiliated with the IRS. Clients signed a contract that listed a $20 million penalty for disclosure and certified that the client was not affiliated with any government agency. Johnson completed Kennedy’s 2008 return stating that Kennedy had earned $89,605 in OID income, that $87,492 was withheld, and that Kennedy was entitled to a $61,959 refund. Kennedy was unemployed and received only disability income, none of which was withheld. Kennedy paid Johnson $4117 by deposit into a third party’s bank account. Poynter submitted Gray’s 2007 tax return, listing income of $401,068 and withholding of $401,067. The IRS deposited a $278,874 refund; Gray paid Poynter $15,000. Gray filed additional fraudulent returns for other tax years. After Poynter’s scheme was uncovered, 14 defendants were indicted. Johnson and Gray were each convicted of making a false claim for a tax refund, 18 U.S.C. 287. Johnson was sentenced to 48 months’ imprisonment; Gray to 60 months. The Eighth Circuit affirmed, rejecting challenges to the sufficiency of the evidence; to calculation of the intended amount of loss; and to application of an increase for an offense that involved sophisticated means. View "United States v. Johnson" on Justia Law

Asphalt hired a company that, from 2005-2008, sent about 44,000 fax advertisements to potential customers. FS, which received some of the faxes, filed a class-action, alleging violation of the Telephone Consumer Protection Act, 47 U.S.C. 227, seeking statutory damages of $500 for each fax. Asphalt notified Western, its insurer during the time when roughly 33,000 faxes were sent. The policies contained a deductible of $1,000 “per claim” for property damage, personal, and advertising injury, applicable to “all damages sustained by one person or organization as the result of any one claim” and to “legal expenses incurred in the handling and investigation of each claim.” Western hired a law firm to represent Asphalt, but did not refer to a reservation of rights. The firm handled the defense for four years. Western sent another letter, stating that Western intended to defend subject to a reservation of rights. Western sought a declaration that it owed no duty to defend or to indemnify. The district court determined that FS lacked standing to bring counterclaims and that Western had a duty to defend, having waived its defenses by waiting four years to issue a reservation-of-rights letter. The Eighth Circuit affirmed, holding that Western did not waive the $1,000 deductible, which applies separately to each fax, so that there is also no duty to indemnify. View "W. Heritage Ins. Co. v. Fun Servs. of Kan. City" on Justia Law

Petitioner traveled from Ethiopia, and entered the U.S. in 2002. He carried a valid Ethiopian passport and non-immigrant visitor’s visa issued under the name Hiko. Shortly thereafter, he sought asylum. Petitioner asserted that the Ethiopian government persecuted him on account of his political opinion, and that he had a well-founded fear of persecution if he were returned. Petitioner claimed that he was detained and beaten because of his membership in the Oromo ethnic group and in retaliation for his support of an organization called the Oromo Liberation Front. Petitioner admitted that he traveled under a false name and the IJ expressed concern about petitioner’s testimony that he was allowed to leave jail to take a school finishing exam during a period of alleged persecution, but granted petitioner’s application for asylum. In July 2006, however, the Department of Homeland Security moved to reopen the case based on newly discovered evidence relating to petitioner’s identity. The IJ granted the motion. Ultimately, the Board of Immigration Appeals denied his application for asylum, withholding of removal, and protection under the Convention Against Torture. The Eighth Circuit affirmed the denials as supported by substantial evidence, but remanded for consideration of a request for voluntary departure. View "Ademo v. Lynch" on Justia Law

Solomon was convicted of violating supervised release and was allowed to voluntarily surrender himself. Solomon absconded after writing a letter, stating his hope that Hendren, then Chief Judge of the Western District of Arkansas, "dies of a slow and painful disease." He sent the letter to Hendren's chambers and a newspaper, which published it. Solomon was apprehended. U.S. Marshal Jones, accompanied by a guard, drove him to Arkansas. According to Solomon's pro se complaint they, "said [he]'d 'pay for writing that type of letter.'" Solomon was transferred to the Benton County Criminal Detention Center (BCCDC). Solomon claimed, while driving him to the BCCDC, the Marshals said that BCCDC "was like going to hell … for their abusive handling practices" and that "they were going to make sure [he] was punished for that letter." Later, Solomon alleged that he was hit by Marshal Cory Thomas; that he "was handcuffed in the middle of the night . . . and a dark cloth was slipped over [his] head and he was . . . carried . . . into another room and given a 'blanket-party' by the deputies." Solomon filed a pro se “Bivens” action. The Eighth Circuit affirmed denial of a motion to dismiss, finding that Jones and Thomas were not entitled to qualified immunity against Solomon's excessive force claim View "Solomon v. Deputy U.S. Marshal Thomas" on Justia Law

Jones was arraigned as a felon in possession of a firearm on October 23. The magistrate set a November 26 trial date. His attorney obtained five continuances, each time stating that it was “in his best interests to waive his rights to a speedy trial.” Jones filed a pro se motion for ineffective assistance on July 15, stating: Dose not take my Phone calls no more. … tells me she is coming to see me ... (never dose) … She Contenue each time. I’ve wrote her and made it Court record that I want to go too trial. no Contenue’s … A attorney files motion to Dismiss for Lack of Evidance and file with the Court to Surrpress the Evidance, This maybe Lazyness or that the attorney Has no interest in my case. no Disposition were tooken … I’ve been in Jail for 9 months now. More then enough time to Perpair for trial. … I want a different attorney. Without holding a hearing, the magistrate denied the motion, and ordered Jones’s counsel to meet with him. Neither Jones nor his attorney said anything more about his motion. Five weeks later, Jones proceeded to trial with the same counsel. The Eighth Circuit affirmed his conviction, rejecting arguments that the court did not adequately inquire into his motion; his Speedy Trial Act rights were violated; and the government engaged in prosecutorial misconduct by introducing a video of the search. View "United States v. Jones" on Justia Law

Hughes guides hunting parties, charging $1,600 to $2,600 per person for accommodations, meals, hunting stands, field dressing, and carcass-cleaning facilities. To hunt buck in Iowa, a hunter must have a “tag.” Non-residents must enter a lottery. Hughes gave his non-resident clients tags belonging to others. After they killed a buck, Hughes falsely reported to the Iowa DNR that the tag owner had killed the buck. The bucks were transported out of state. Hughes was indicted under the Lacey Act, 16 U.S.C. 3371, which prohibits selling in interstate commerce any wildlife taken in violation of state law. The value of the wildlife determines whether the offense is a felony or a misdemeanor. The court instructed the jury: you may, but are not required to, consider, the price the wildlife would bring if sold on the open market between a willing buyer and seller; the price a hunter would pay for the opportunity to participate in a hunt for the wildlife; or Iowa’s valuation of the wildlife in state prosecutions where such wildlife is unlawfully taken. The jury found that the market value of the wildlife exceeded $350. The district court sentenced Hughes to three years’ probation, $7,000 in fines, and $1,802.50 in restitution. The Eighth Circuit reversed; the jury was not properly instructed as to the meaning of “market value.” View "United States v. Hughes" on Justia Law

Based on their involvement in promoting or selling stock for Petro America, an unregistered company that had no value, eight coconspirators were charged with conspiracy to commit securities fraud and wire fraud 18 U.S.C. 371. Hawkins was also charged with aiding and abetting securities fraud, 15 U.S.C. 77q and 18 U.S.C. 2, aggravated currency structuring, 31 U.S.C. 5324(a)(3) and (d)(2), money laundering, 18 U.S.C. 1957, and two counts of wire fraud, 18 U.S.C. 1343. Brown was also charged with securities fraud and wire fraud; Heurung was charged with two additional counts of wire fraud; and Miller was charged with money laundering and wire fraud. The others pled guilty to various charges. Hawkins, Brown, Heurung, Miller and Roper proceeded to trial. Hawkins argued that Petro America was a legitimate company and that the government was prosecuting so that it could confiscate the company's substantial assets. The others acknowledged that Petro America was a sham but claimed they had believed in good faith that the company was real and that they could promote or sell its stock. The Eighth Circuit affirmed their convictions on all counts, rejecting challenges concerning jury selection and evidentiary rulings. View "United States v. Hawkins" on Justia Law