Cornell & FDsys Partner to Bring Patrons a New, Improved Code of Federal Regulations (CFR)

According to a press release published by Cornell, the Cornell Legal Information Institute (LII), the Cornell Law Library, and the Government Printing Office (GPO) formed a partnership that spent two years collaborating on a project whose goal was to bring patrons an improved and more easily searchable version of the Code of Federal Regulations (C.F.R.)  Thomas Bruce, Director of LII says: “The LII’s edition of the CFR has the same search and navigation features that have made its edition of the United States Code the leading free, online source for Federal statutes for over a decade….We’ve added linked cross-references both within the CFR and to relevant parts of the United States Code, something no other freely-available collection has. This will help users find other government regulations that impact them that they may not have found before.”  

The release discusses additional enhancements, describing them as “…the LII CFR also contains links to relevant statutory authority and to rulemaking dockets for pending regulations that may affect the section the user is viewing. The LII edition is updated concurrently with updates to the GPO’s Federal Digital System data on which it is based, with links from each page to the Office of the Federal Register’s e-CFR edition for more recent updates. The LII is actively experimenting with new features based on the capabilities of the Semantic Web. For example, users can now search Title 21 using brand names for drugs (such as Tylenol), and receive the generic name for the drug (acetaminophen) as a suggested term. Other near-term enhancements will include searches by United Nations product code, the identification and linking of relevant agency guidance information for each Part and Section, and a wide variety of Linked Data offerings.”

Patrons can use these revision to locate federal regulations.  Searching is via citation,  keyword, or browsing the Table of Contents.

May 31, 2012 4th Circuit published opinions

United States v Cloud

Cloud was convicted of multiple counts of fraud and money laundering for acts committed in a mortgage fraud conspiracy. He argued on appeal that certain evidence was wrongly admitted, that his money laundering conviction must be vacated, his loss amount for sentencing was wrongly calculated and his reimbursement order should be vacated. The panel affirmed in part and reversed in part. It held the victim impact and certain statements were properly admitted and in any event the admission was harmless. The panel vacated all but one of the money laundering counts holding that, under circuit and Supreme Court precedent, the payments to other conspirators were essential expenses of the scheme and thus could not forma basis for a separate money laundering conviction. It did affirm a money laundering count premised on the underlying conspiracy. The panel upheld the loss amount holding the effect of foreclosures on surrounding homeowners and the minimal property management provided by Cloud was sufficient to justify the amount found by the trail court. The panel finally vacated the attorney fee order as the trial court failed to identify the income or other funds which could be used to pay the reimbursement.

Delebreau v Bayview Loan Servicing LLC

Delebreau defaulted on a mortgage secured by a deed of trust. They defaulted and the note was accelerated. They filed suit alleging violations of West Virginia’s unfair business practices act. The trial court dismissed on statute of limitations grounds and the panel affirmed. It held that the date of the last scheduled payment for limitations purposes is the date of the acceleration. It based this on the plain language of the statute and the underlying policy of encouraging timely filing of suits.

Starnes v Commissioner of Internal Revenue

Starnes and the other shareholders in a trucking company sold the assets and shares to provide retirement funds. Contrary to the sale agreement, purchaser did not keep the company as an ongoing enterprise but sold it to a third party. That party claimed no taxes were due as losses offset income. The commissioner disagreed and levied a deficiency. After failing to collect the amount owed, the commissioner brought an administrative action against the former shareholders. The tax court held North Carolina law applied to determine if liability could be asserted against the former shareholders. It determined the answer was no and entered judgment. The panel, 2-1, affirmed. The majority held state law governed the liability determination and assumed the federal requirement of being a “transferee” was met. The majority held that the series of transaction were not a “transfer” for North Carolina fraudulent transfer act purposes as the correct timeframe is the transfers constituting the sale of the company, not the subsequent transactions between buyer and the third party. The majority held that while the former shareholders were on inquiry notice as to the possibility the buyers would use the company for tax avoidance, the tax court properly found reasonable inquiry would not have revealed whether or not that was the motive for the purchase. Thus, there was no basis to set aside the transfer under the fraudulent transfer act or under common law. The dissent argued that the former shareholders entered into a fraudulent agreement to avoid taxes and should be liable based on substance of the transaction which it characterized as a liquidation of the company.

First Circuit holds Section 3 of Defense of Marriage Act unconstituional

The First Circuit in the companion cases of Massachusetts v Department of Health and Human Services and Gill v OPM, found Section 3 of the Defense of Marriage Act unconstitutional. The panel chose to apply a more rigorous rational basis standard as marriage is historically regulated at the state level and there is a history of discrimination towards gay and lesbian citizens. The panel held that Section 3 did not violate the spending clause or the 10th Amendment. However, the panel held that the offered justifications in the House Report were inadequate as there was no increase in the benefits offered to heterosexual couples, the Act did not prevent same sex couples form adopting and rearing children and moral disapproval of same sex couples was not a permissible basis to uphold the Act. The panel affirmed on a health insurance issue as the issue was before another circuit court. Recognizing review of its decision was highly likely, the panel stayed its mandate keeping the prohibitions on benefits in place. The opinion can be found here.

May 30, 2012 South Carolina pubished opinion

Tillman v Oakes

Father sought a change in custody based on a breakdown in communication and other “serious issues” after trial, the family court ordered a change in custody for one child. It based its decision on several findings including the breakdown in communication, an incident of excessive corporal punishment and the desires of the child. After the appeal was filed, father filed another petition alleging abuse and seeking to terminate visitation for mother. The family court held it was without jurisdiction and instructed father to seek relief from the appeals court. The panel reversed and remanded for a new trial on the original order. It found that the findings of the family court insufficient to justify a change in custody. Specifically, it noted the breakdown in communication was mutual, the corporal punishment incident was isolated and the ten year old child’s desires were not entitled to much weight. It also expressed concern that the family court did not include all the “serious issues” which it felt justified the change of custody. On the new petition, the panel held the petition was not automatically stayed and that the appeal did not affect visitation rights as neither party appealed those provisions. It ordered the family court to provide periodic updates as to the visitation petition.

Keeping Clients (Happy)

David Leffler of NYC’s Leffler, Marcus & McCaffrey, LLC, published an article in today’s  GP Solo about clients, keeping them, and keeping clients happy and satisfied.  Leffler’s to do list includes 10 common sense items.  They are:  1) listening and talking to your clients without patronizing them; 2) respecting your clients; 3) billing clients fairly; 4) staying in touch with clients and returning phone calls; 5) helping clients solve problems; 6) doing what you say you are going to do; 7) being available; and 8) using the personal touch:  laugh and ask about family.

 

May 29, 2012 United States Supreme Court opinions

RadLax Gateway Hotel LLC v Amalgamated Bank

RadLax field for Chapter 11 bankruptcy and submitted a plan which would allow the sale of secured property without allowing the secured creditor to bid the value of the outstanding balance of its loan. The bankruptcy court and 7^th Circuit rejected this approach and the Court affirmed. It held the section allowing nonconsensual plans required allowing the creditor to bid the value of their loan notwithstanding a general provision allowing equivalence to be enough.

Coleman v Johnson

Johnson was convicted of murder under an aiding and abetting theory. His conviction was affirmed in the state courts and by the district court on habeus. The 3^rd circuit undertook its own review of the evidence and found it insufficient to sustain the conviction. The Court summarily reversed finding a rational jury could find beyond a reasonable doubt that Johnson knew the shooter was armed and had threatened to kill victim and Johnson helped get the victim into an alley and stood watch at the entrance and that state courts were reasonable in so holding.

May 25, 2012 4th Circuit published opinions

Hosh v Lucero

Hosh, a legal resident, was convicted of state crimes which made him eligible for removal from the country. He received suspended sentences. Three years after his conviction, he was detained preparatory to seeking his removal from the country. He sought a bond hearing. The immigration judge held that he was not eligible for bond as detention was mandatory under applicable statutory language. The district court granted habeas relief based on its reading of the applicable statutory language to mean the detention is required only when the alien is taken into federal detention immediately after release from state custody. Several other petitions were also granted in the same district. The panel reversed. It noted that the statute had been construed by various district courts both to allow bond and to require mandatory detention when the detention occurs a substantial amount of time after the release of the alien from custody. Applying Chevron, the panel determined that Congress did not intend to allow aliens to be released when they avoided federal detention for more than the few moments they were being released. Therefore, the Board of Immigration Appeals view that detention is required when the alien is taken into federal custody years after release is reasonable and Chevronrequires deference. Additionally, the statute has no consequence for failure to immediately detain the alien; thus, there is no reason to allow the alien to benefit from the failure to immediately detain him. The panel declined to apply the rule of lenity finding the ambiguity was not grievous and Hosh was subject to deportation whe

Waddell v Department of Corrections

Waddell was convicted of murder and sentenced to death. That sentence was vacated by the United States Supreme court and he was sentenced to life. At the time of his sentencing, life sentences were treated as 80 year sentences. Several inmates sentenced under this statutory provision sued for an unconditional release date based on 80 years less good time credits. The North Carolina Supreme Court ultimately rejected this relief finding the Department of Corrections was within its power to not use good time credits to reduce 80 year terms and no federal constitutional violations occurred. Waddell sought federal habeas relief on due process and ex post facto grounds. The district court denied his petition. The panel affirmed. It assumed the petition was timely filed and turned to the merits. It held that because the Department has never used good time credits to reduce 80 year sentences, its failure to do so in Waddell’s case did not violate due process. The panel also rejected the ex post facto argument holding the good time credit rules were in effect when Waddell started his sentence and there was thus no post conviction enactment which increased his punishment.

ther or not he is detained.