Cattlemen lose verdict at the Eighth Circuit Court of Appeals but go away with an English lesson. 071586P.pdf 01/29/2008 Herman Schumacher v. Cargill Meat Solutions Corp. U.S. Court of Appeals Case No: 07-1586 and No: 07-1588 and No: 07-1590 U.S. District Court for the District of South Dakota - Aberdeen [PUBLISHED] [Beam, Author, with Melloy and Shepherd, Circuit Judges] The Packers and Stockyards Act Section 202(e) (7 U.S.C. § 192(e)) did not apply when Packers who paid cattlemen less for their livestock because the US Department of Agriculture published erroneous "cut-out" prices for six weeks in 2001 (Livestock Mandatory Reporting Act (LMRA)7 U.S.C. § 1635f). Cattlemen sued several large meatpackers for violating the Packers and Stockyards Act when the USDA's published prices for packers' cut-out prices were too low. Cut-out prices are the average of separate boxed beef prices. The jury found for the cattlemen on their 202(e) {market manipulation} complaint that the packers' reliance on the erroneous price data was unlawful control of the cattle market. The cattlemen lost their 202(a) {price discrimination} complaint at trial. Eighth Circuit reverses, finding 202(e) liability for the "effect of manipulating or controlling prices" required intentional conduct. "Controlling" is to the Eighth Circuit just a little nicer version of "manipulating" so either way, the plaintiffs needed to prove intent, which they did not. Reversed with directions to dismiss. "Or" (can be) interpretative or expository of the preceding word. For instance, "or" is often used in the sense of "to wit," "that is to say," or simply a broadened or narrowed explanation of the same thing. We find that Congress intended "or" to be given an explanatory interpretation. Indeed, "manipulate," according to Merriam-Webster's Collegiate Dictionary, is defined in terms of control. Thus, under the statute, control is simply a more benign and slightly less invidious way of achieving manipulation, both requiring an intentional act to animate the result. In sum, we conclude that to prove a violation of § 202(e), a plaintiff must show that a packer intentionally committed unlawful conduct. Therefore, the district court erred when it instructed the jury that a showing of intent was not required and reversal of the district court is necessary.

No intervention on appeal for insurer left out of worker compensation hearing loss case. Employee won permanent total disability from his employer in the Nebraska worker compensation court but he appealed to the review panel to back-date his date of disability. One of the employer's worker compensation insurers discovered after the award that it would be responsible for the award and petitioned to intervene in the appeal. Nebraska Supreme Court holds that although 48-161(1) permits the worker compensation court to determine coverage issues, it is not required to resolve them. The worker compensation court review panel did not err when it refused to permit the left-out insurer from defending itself during the review proceedings. Risor v. Nebraska Boiler, S-07-269, 274 Neb. 906. "(Worker compensation) proceedings are designed to furnish summary and speedy (hearings) for the particular purpose of compensating an injured employee. While, under § 48-161, the compensation court may determine the existence of insurance, such jurisdiction is not exclusive. We agree that joining an insurer and deciding coverage disputes may hinder rather than further the beneficent purposes of the Act. As such, § 48-161 does not authorize post-award intervention when the employee has chosen to bring a claim against the employer alone. " The omitted insurer likewise did not suffer a failure of procedural due process from the fact that (omitted insurer) was not notified of (injured worker’s) action against Nebraska Boiler and was not made a party to the proceedings before the review panel

The "kitchen sink" power of attorney your rich uncle gave you is not your personal gold card. Nebraska Supreme Court holds that the attorney-in fact's plenary power of attorney did not permit him to transfer gifts from the principal to himself or his family members without specific authorization. Archbold v. Reifenrath, S-06-1124, 274 Neb. . "Section 49-1557 provides that plenary power authorizes the agent to act as the principal’s alter ego. Notably, § 49-1557 limits plenary power to those acts an agent is otherwise authorized to do as an agent. As explained above, our case law on the subject has made clear that an agent is not authorized to make substantially gratuitous transfers to himself or his family absent an express provision in the POA. Because the POA in this case does not contain a specific authorization for the making of gratuitous transfers by Joseph to himself or his immediate family, we determine that Joseph has failed to meet his burden." The attorney-in-fact defendant probably should not have offered the testimony of his attorney who prepared the document to introduce parole evidence that the principal intended to allow gratuitous transfers, because the Nebraska Supreme Court had suspended her a few years ago for her handling of real estate transactions in a divorce case.

Nebraska Supreme Court rejects defendant's double jeopardy argument against using his prior felony convictions to find him guilty as both a felon possessing a firearm and as an habitual offender. State v. Ramirez, S-06-920, 274 Neb. 873. Defendant was convicted by the district court in 2004 with use of a firearm to commit a felony, being a felon in possession of a firearm, and terroristic threats. The court also found Defendant was an habitual criminal. Defendant was acquitted by a jury of a count of possession of methamphetamine. Defendant was sentenced, collectively, to terms of imprisonment totaling not less than 25 nor more than 50 years. His trial counsel also served as counsel on direct appeal, and the only issue raised in his brief was whether his sentences were excessive. The Nebraska Court of Appeals summarily affirmed. Defendant loses his ineffective counsel action because his double jeopardy argument would fail. The fact that the predicates for §§ 28-1206 (felon in possession of a firearm) and 29-2221 (habitual offender) are defined in different terms suggests that the same conviction can be used for both status and enhancement if that conviction meets the independent requirements of each statute. it is apparent, from Nebraska’s statutory scheme, that the Legislature intended for habitual criminals to be sentenced pursuant to § 29-2221, even when convicted of violating § 28-1206. The statutes define their necessary predicate elements using different standards. Therefore the trial court did not violate the defendant's Fifth Amendment right against Double Jeopardy.

Nebraska Supreme Court affirms defendant's conviction for manufacturing a controlled substance, in this case home-grown marijuana. The Supreme Court rejects defendant's appeal that his marijuana growing qualified for the "personal use" exception in 28-401(14). Police officers' search warrant affidavit did not state stale information even though it restated informants' statements from one month earlier that the defendant was growing marijuana in his home. The court also refused to suppress defendant's incriminating statements he made after a Nebraska State Patrolman arrested the defendant at a gas station for driving on a suspended license as the police were starting to search his home. State v. Bossow, S-07-099, 274 Neb. 836 The Nebraska Supreme Court fires up the cloudy issue in 28-401(14) of how "personal use" differs from manufacturing a controlled substance. The Supreme Court finds the statute clearly included growing plants that produce controlled substances and personal use covered rolling the grass and toking up. "The plain meaning of the “personal use exception” is to avoid finding an individual liable for the felony of manufacturing a controlled substance when that individual is already in possession of the controlled substance and is simply making it ready for use, such as rolling marijuana into cigarettes for smoking or combining it with other ingredients for use." The Supreme Court also rejected the defendant's claim the information in the search warrant affidavit was stale because it contained the informants' statements that when they visited the defendant's home over one month prior marijuana was growing there. Since the growing cycle of the plant would cover that time period and the plants were not likely to disappear, the search warrant affidavit information was not stale. "Growing marijuana is not an isolated activity where the evidence supporting probable cause tends to disappear quickly.Rather, growing marijuana is a protracted process, for which there is a much greater probability that the evidence related to the crime would remain on the premises for some time. Asindicated in (State partolman's) affidavit, marijuana plants can take up to 22 weeks to mature and can grow in excess of 8 feet tall."

Junk Science update: Plaintiff's attorney who represented the plaintiff who sued alleging repressed memories of sexual abuse from her Baptist minister agrees to vacate the jury's $1.75 million plaintiff's verdict. Free Republic.com. The plaintiff's expert Dr. Daniel Brown of Harvard helped the plaintiff's case of repressed memory of sexual abuse she suffered as a child. The Defendant's counsel however submitted affidavits from real experts that Dr Brown misrepresented the "general acceptance” within the relevant scientific community of his repressed memory hypothesis. They also stated in their affidavits that Dr Brown mis-stated the theory’s error rate, according to the papers. Error rate can determine the reliability of a scientific field. The defendant's attorney argued in filings that the good doctor Brown "either intentionally or through reckless indifference to the truth, mis-stated the existence of an error rate relating to” the hypothesis." Didn't Dr Brown realize that's the Plaintiff's attorney's job?

Order of the Kneepads update: in two attorney discipline cases the Nebraska Supreme Court exuses attorneys' neglecting client matters and serial trust account violations with a short suspension in one case and a reprimand with probation in the second. Nebraska attorneys who might be trying to read the Supreme Court's tea leaves when it comes to discipline cases should factor in gender, ethnicity and how much the Bar needs the attorneys to represent our widows and orphans. Those attorneys appear to survive serious ethical lapses with negligible discipline. State ex rel. Counsel for Dis. v. Zendejas, S-06-269, 274 Neb. 829. Eduardo Zendejas appears before Native American Courts advocating for juveniles and family members. the Nebraska Supreme Court Minority and Justice Task Force in 2000 also appointed him to be its project coordinator. A client paid him $14000 to pursue a post-conviction action but after two years, the client heard nothing from the attorney. When the client complained the best the counsel for discipline could do was send Rule 9(E) inquiry letters, which don't require the attorney to immediately respond. Eventually the attorney admitted he should return most of the money to the client but even then it took him nearly two years to repay the client his retainer, less expenses. He also took weeks to actually pay the client after he told the counsel for discipline he had done so. Since the attorney was such a valuable resource for the Indian community the referee recommended a 30 day suspension. The Nebraska Supreme Court cracks the whip and imposes a whopping 120 day suspension. State ex rel. Counsel for Dis. v. Pinard-Cronin, S-07-275, 274 Neb. 851. Attorney Carol Pinard-Cronion blew her clients statute of limitations on a simple automobile collision and also accumulated multiple overdrafts in her law firm trust account. Because she mainly handled juvenile matters and for other reasons, the Supreme Court reprimands her and imposes probation for 18 months.

Nebraska Supreme Court reverses the Platte County District Court and allows the Department of Motor Vehicles to seek to enhance a driver's license suspension if the driver had a prior alcohol-related license suspension. Stenger v. Department of Motor Vehicles, S-06-1176, 274 Neb. 819 § 60-498.01 permits the hearing officer at the Administrative License Revocation hearing (ALR) the receive evidence for enhancement at a revocation hearing. A lthough 60-498.01 limits the issues under dispute, it does not prohibit evidence pertinent to the ultimate disposition of a case after those issues have been resolved. Whether a person’s driver’s license has previously been revoked is relevant evidence in determining the length of the revocation under § 60-498.02(1)(b). Therefore, § 60-498.01 allows receiving the driving abstract to enhance a revocation, and we hold that a driving abstract may be admitted in an A LR proceeding for that purpose. A party still may contest the accuracy of the abstract as to whether the party did in fact have a prior revocation. S ection 60-498.02(1)(b) explicitly provides that if a driving abstract shows that the driver had a revocation in the prior 12 years, the revocation can be enhanced to 1 year. T herefore, the Legislature clearly intended for the Department to consider such matter in the ALR proceedings

Nebraska Supreme Court allows Otoe County to require mutual impact easements when real estate developers seek permits to build houses close to existing hog confinement facilities. Coffey v. County of Otoe, S-06-921, 274 Neb. 796A property developer and a purchaser of one of his lots sought to build a house that was close to an existing hog confinement facility. Otoe County required in its zoning regulations that homeowners and livestock producers file mutual impact easements before it would allow the building to continue. When the livestock producer refused to grant the easement and Otoe County refused to allow a variance, the developer and his customer sued. The Otoe County District Court reversed finding the mutual impact easement requirement was an unconstitutional delegation of legislative power. Nebraska Supreme Court reverses, the zoning regulations were proper exercises of zoning power. "If the consent is used for no other purpose than to waive or modify a restriction which the governing body has lawfully created and has provided for such a waiver or modification by those most affected, then the consent is regarded as being within constitutional limitations," Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S . Ct. 190, 61 L. E d. 472 (1917).we conclude that the mutual impact easement language in Otoe County’s zoning regulations is not an unconstitutional delegation of legislative authority, and the district court erred in concluding otherwise

Nebraska Supreme Court clarifies standard it will use to evaluate claims of ineffective counsel when the defendant alleges his attorney failed to inform him of a proposed plea bargain. Supreme Court notes rulings from the Eighth, Seventh and Sixth Circuit Courts of Appeal and settle on the Sixth’s reading of Strickland v Washington to hold that the defendant must demonstrate a “reasonable probability” that, but for counsel’s deficiency, the defendant would have accepted the plea. During the trial the prosecutor noted the murder defendant's refusal to answer questions from jail guards as they processed her into jail. Although the prosecutor's reference to her knowing refusal to talk to jail personnel was an improper comment on her post-arrest silence, defense counsel's failure to object to the State's closing argument would not have changed the result of the trial because of the overwhelming evidence against the defendant. State v. Lopez, S-06-1251, 274 Neb. 756 "In the Eighth Circuit, “[t]o establish prejudice . . . the movant must show that, but for his counsel’s advice, he would have accepted the plea. To command an evidentiary hearing, the movant must present some credible, nonconclusory evidence that he would have pled guilty had he been properly advised."Engelen v. U.S., 68 F.3d 238 (8th Cir. 1995). the Seventh Circuit, citing Strickland, requires a defendant to “establish through objective evidence that there is a reasonable probability that, but for counsel’s advice, he would have accepted the plea.” Toro v. Fairman, 940 F.2d 1065 (7th Cir. 1991); We concur with the Sixth Circuit’s reading of Strickland and hold that the defendant must demonstrate a “reasonable probability” that, but for counsel’s deficiency, he or she would have accepted the plea. Magana v. Hofbauer, 263 F.3d 542, (6th Cir. 2001);We conclude, however, that Lopez cannot meet this standard. While the defendant's counsel should have objected to the prosecutor's comments, it was not ineffective counsel. "The prosecutor’s comment in closing was a Doyle violation (Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). In this case, Lopez’ silence was not used to impeach her testimony at trial, since she did not testify. It is is fundamentally unfair to implicitly promise a defendant his or her silence will not be used against him or her, then essentially using that silence against the defendant. The State’s comments in closing were a violation of Doyle. However assuming that Lopez’ counsel was deficient in failing to object to the State’s violation of Doyle, Lopez still cannot show a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different.

Nebraska Supreme Court reverses Douglas County District Court summary judgment that was in favor of plaintiffs whose attorney had forged their signatures on settlement documents, forged their settlement checks and stole their funds against their attorney's malpractice insurer. The Supreme Court holds the fraud and misappropriation exclusion clauses in the attorney's malpractice insurance policy voided coverage. On remand the Nebraska Supreme Court directs the District Court to give summary judgment to Coregis, the former attorney's malpractice insurer. Fokken v. Steichen, S-06-614, S-06-615, 274 Neb. 743. Coregis should have received summary judgment for the plaintiffs' claims that the attorney misappropriated their settlement funds by converting the funds for the attorney's use. When the District Court determined the attorney fraudulently settled the cases, the malpractice insurer wins summary judgment for the balance of the plaintiffs' malpractice claims that the attorney settled their cases for less than their true value.Steichen’s unauthorized endorsement of Miller’s and Fokken’s names constituted a dishonest act. Because the district court in both Fokken’s and Miller’s cases adjudicated Steichen of committing those dishonest acts, coverage is precluded under exclusion A (dishonesty) of the Policy for the balance of the appellees’ judgments against Steichen."

Nebraska Court of Appeals excludes a divorcing spouse's lump sum social security disability award from the couple's marital assets, but the divorce court judge should consider the social security payment when dividing the remaining assets that are marital. Dinges v. Dinges, A-06-239, 16 Neb. App. 275. Divorcing wife received a lump sum social security disability (SSDI) award of $27000 and the couple used the funds to purchase a modular home. The trial judge included the SSDI award in the couple's marital assets. The wife represented herself and also objected to the court's refusal to hold a pre-trial conference. Nebraska Court of Appeals overrules the wife's objections to the conduct of the trial judge but modifies the division of assets to exclude the social security award while still considering the award when dividing the remainder of the marital assets. "the trial court erred in stating that it “should consider the lump sum award received by wife as a marital asset subject to division in this dissolution proceeding” and then including the modular home, purchased post separation with the Social Security funds, in the marital estate. The Nebraska Supreme Court’s holding in Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006), precludes such treatment. However, we must also decide the issue discussed but not reached by the Webster court. We hold that while an offset of a Social Security award is prohibited by the anti-assignment clause of the Social Security Act (42 U.S.C. § 407(a) (2000) and the Supremacy Clause of the U.S. Constitution, a court may properly consider a spouse’s Social Security award in equitably dividing the marital property. We rely upon the “weight of authority” noted by the Webster court. See id. at 798, 716 N.W.2d at 55. Of course, such award is only one of many factors which we consider in our de novo review of the division of marital property."

Police stopping drunken driving suspects do not need to give Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) warnings to drivers before conducting interrogations immediately after the traffic stop. Nebraska Court of Appeals affirms drunk driving conviction. State v. Brauer, A-07-256, 16 Neb. App. 257 “‘The police may interview suspects not in custody and not subject to coercion in on-the-scene investigations for the purpose of determining whether a crime has been committed and who committed it.’” State v. Holman, 221 Neb. 730, 380 N.W.2d 304 (1986). Roadside questioning of a driver detained pursuant to a routine traffic stop does not constitute custodial interrogation for purposes of Miranda. (State Patrolman) placed Defendant in the cruiser to conduct on-the-scene investigation and questioning, based on his reasonable suspicion that Defendant might have been driving while intoxicated. We conclude that the county court did not err in denying Defendant’s motion to suppress his statements."

Temporary Total Disability (TTD) may extend beyond 300 weeks, Nebraska Court of Appeals affirms worker compensation court review panel order to reinstate an injured workers TTD beyond 300 weeks and awards the injured worker attorney fees for an obtaining an increased award. Heppler v. Omaha Cable, A-07-365, 16 Neb. App. 267 Under § 48-121(1), a worker’s entitlement to temporary total disability benefits is not capped at 300 weeks. We affirm the decision of the review panel in all respects.