Friday, August 28, 2009

Eighth Circuit Court of Appeals affirms conviction for child pornography; defendant's claim that governments search of his computer that was hooked up peer to peer with other computers through Lime Wire program was not an illegal warrantless search. 083183P.pdf 08/14/2009 United States v. Harold Stults U.S. Court of Appeals Case No: 08-3183 District of Nebraska - Omaha [PUBLISHED] [Smith, Author, with Riley and Colloton, Circuit Judges] Criminal case - criminal law and sentencing. Users of peer-to-peer file sharing software like LimeWire do not have a reasonable expectation of privacy in files they make available to others using the software, and the warrantless search of defendant's computer through LimeWire did not violate his Fourth Amendment rights; affidavit the police used to obtain a warrant to search defendant's home and seize his computer established probable cause to believe child pornography would be found; defendant's prior conviction for attempted sexual assault on a child was sufficient to invoke the ten-year mandatory minimum sentence under 18 U.S.C. Sec. 2252(b)(2); under this court's precedents, the district court did not err in applying the five-level enhancement under Guidelines Sec. 2G2.2(b)(3)(B) as the government produced sufficient circumstantial evidence to meet its burden of proving defendant expected to receive child pornography when he used LimeWire; sentence was not unreasonable; special conditions of supervised release which controlled defendant's contact with children, access to pornography and use of the Internet and cameras were related to his offense and were reasonable measures to protect the public.
Eighth Circuit Court of Appeals affirms without comment Nebraska convict's civil rights complaint against requiring him to register as a sex offender for pandering a minor. 081629U.pdf 08/21/2009 Richard Hansen v. John Doe U.S. Court of Appeals Case No: 08-1629 District of Nebraska - Lincoln [UNPUBLISHED] [Per Curiam - Before Loken, Chief Judge, and Hansen and Colloton, Circuit Judges] Civil case - civil rights. Order dismissing suit claiming issuance of a citation for violation of SORNA's (Neb. Rev. Stat. §§ 29-4001-14.) reporting requirements violated plaintiff's civil rights affirmed without comment.
Nebraska Supreme Court affirms summary judgment against Mortgage lender in its declaratory complaint and insurers' cross-complaint denying the mortgage lender a defense in borrower's fraud and slander of title lawsuit against it in Kentucky state court. Mortgage Express v. Tudor Ins. Co., S-08-728, 278 Neb. 449 Mortgage Express, Inc., and Jeff Rothlisberger, its sole shareholder (collectively Mortgage Express), seek a declaration that Mortgage Express liability insurers, Tudor Insurance Company (Tudor) and Cincinnati Insurance Company (Cincinnati) are obligated to defend Mortgage Express in a suit brought against it by a third party, Village Campground (Village). In December 2006, the court entered summary judgment in favor of Tudor and Cincinnati, thereby dismissing Mortgage Express’ action, and Mortgage Express appealed The court filed another order dismissing Peterson ( the defendant insurance broker), properly certifying the case as a final, appealable order, and Mortgage Express filed this appeal. We affirm. There is no genuine issue as to the fact Mortgage Express was unaware, prior to the effective date of the Tudor policy, of the circumstances leading up to the claims asserted in Village’s amended complaint. Therefore, the Tudor policy does not provide coverage for the defense sought by Mortgage Express. As to defending the Village's slander of title suit, "title to real estate is not a person, organization good, product, or service as those terms are commonly understood," thus, slander of title did not fall within the policy coverage of a good, product, or service as those terms are commonly understood," thus, slander of title did not fall within the policy coverage defendant provided to plaintiff. Mortgage Express’ remaining argument is that Cincinnati must defend it in the underlying action because its lien is an invasion of the right to private occupancy of the premises Mortgage Express merely asserted that it held a valid, unsatisfied security interest against the property. A security interest is an interest in personal property or fixtures which secures payment or performance of an obligation. As such, Cincinnati has no duty to defend Mortgage Express and was properly granted judgment as a matter of law.
Nebraska Supreme Court reverses Court of Appeals decision that dismissed appeal of landlord's complaint for indemnificaiton against tenant bank arising from a bank customer's personal injury lawsuit. Kuhn v. Wells Fargo Bank of Neb., S-08-141, 278 Neb. 428 The burden of proving mootness is on the party seeking dismissal "Maintenance of a building," within the meaning of Neb. Rev. Stat. § 25-21,187(1) (Reissue 2008), does not encompass the ordinary activities associated with management of commercial property. Indemnification is distinguishable from the closely related remedy of contribution in that the latter involves a sharing of the loss between parties jointly liable. "The Court of Appeals erred by dismissing this appeal as moot, because the burden had not yet been placed on (landlord) to prove damages, and the record does not foreclose the possibility that (landlord) was liable to (injured plaintiff). The district court erred in concluding that paragraph 20 was ambiguous, and we find no merit to the Bank’s alternative reasons why paragraph 20 was purportedly unenforceable. The judgment of the Court of Appeals is reversed, and the cause remanded to the Court of Appeals with directions to reverse the judgment of the district court and remand the cause to the district court for further proceedings consistent with this opinion
Nebraska Supreme Court affirms summary judgment against tenured Creighton language professor who sued a PHD student for maliciously filing a harassment complaint against her. Recio v. Evers, S-07-1338, 278 Neb. 405 We conclude that a person cannot incur liability for interfering with a business relationship by giving truthful information to another. In this case, Recio’s claim for tortious interference with a business relationship rested on Evers’ sexual harassment complaint, and the record establishes that the material allegations of Evers’ complaint were truthful. And even if actual malice can defeat a defense that interference with a business relationship was justified, there is insufficient evidence in the record to show that Evers’ sexual harassment complaint was motivated by actual malice. Therefore, the district court correctly concluded that Evers’ sexual harassment complaint was justified.

Saturday, August 22, 2009

Nebraska Court of Appeals allows uncounseled prior DUI conviction for enhancement when sentence was stand-alone probation and subsequent offense for DUI 2nd offense. State v. Wilson, A-08-1337, 17 Neb. App. 846. New charge was DUI 2nd offense, more than 0.15, Neb. Rev. Stat. § 60-6,196 (Reissue 2004), which is a Class I misdemeanor under Neb. Rev. Stat. § 60-6,197.03(5) (Supp. 2007). At the time, her breath alcohol content was .215 grams per 210 liters of her breath. "we hold that a prior conviction resulting in a sentence of probation, and not actual imprisonment, can be used for enhancement in subsequent proceedings without a showing that the defendant had or waived counsel in the prior proceeding. Because Wilson was sentenced to probation and a fine and no term of imprisonment was actually imposed, Wilson was clearly not entitled to counsel for her misdemeanor conviction for DUI in 2003—on constitutional or any other grounds."
In mandamus action former physician who was a defendant in a medical malpractice lawsuit sought to prohibit the Dawes County District Court from allowing plaintiff to review materials the Nebraska Attorney General had obtained in its disciplinary action against him. The doctor had surrendered his license for sexual misconduct while the malpractice suit stemmed from an allegedly botched diagnosis of a spinal cord injury. The plaintiff argued that discovery was necessary because she may have been injured because the pervert doctor might have been turned on too much to give her good care. The Nebraska Supreme Court denies the doctors writ of mandamus and allows discovery of the disciplinary investigation to proceed. Stetson v. Silverman, S-09-209, 278 Neb. 389 "We conclude that the relators (the defendant doctor) have failed to meet their burden of showing clearly and convincingly that they are entitled to quash discovery of information regarding defendant's surrender of his license. In addition, they do not have standing to quash a subpoena directed at the Department to obtain its records. We therefore deny their request for a peremptory writ of mandamus ordering the district judge to vacate his discovery order."
Order of the Kneepads Update: Nebraska Supreme Court suspends Lincoln attorney for 60 days, deferred for 30 days upon conditional admission that she mishandled a convict's civil rights lawsuit against the State Department of Corrections. Court decision fails to mention same attorney had record of public discipline, a public reprimand in 2005 for neglecting cases. State ex rel. Counsel for Dis. v. Kleveland, S-09-115, 278 Neb. 385 (Kleveland II). Prior disciplinary decision State ex rel. Counsel for Dis. v. Kleveland 270 Neb. 52 (2005) (Kleveland I).
Order of the Kneepads Update: Nebraska Supreme Court suspends Omaha attorney for three months for failing to prepare auto accident cases for trial and for communicating with the court and clients. State ex rel. Counsel for Dis. v. Bouda, S-08-1204, 278 Neb. 380
Nebraska Supreme Court, Miller-Lerman, Justice affirms Lancaster County District Court conviction of felony murder and use of a firearm to commit a felony from the shooting death in an armed robbery of a marijuana dealer. State v. Banks, S-07-670, 278 Neb. 342. Defendant broke into the victims home to rob him of cash and a marijuana stash. Defendant shot the victim twice in the chest as he was getting away in his friends car. Nebraska Supreme Court affirms District Court's refusal to allow an alternative premediated first degree murder instruction along with the court's felony murder instruction. The district court's refusal to allow the jury to consider lesser included homicide offenses and acquittal on robbery the Supreme Court also affirms. Defendant also loses his appeal on jury selection, venue, witnesses cross examination and the state's late amendment of the weapons charge from a Class III felony to a firearms Class II felony. We conclude that Banks has not established reversible error from the court’s refusal to instruct on premeditated murder and the lesser-included offenses of second degree murder and manslaughter. In this case, Banks was convicted of first degree murder based on sufficient evidence. Banks has shown no prejudice from the refusal to instruct on premeditated murder, because such instruction would have simply given the jury an additional theory under which to convict Banks of first degree murder. Banks also has not shown that he was prejudiced by the failure to instruct on premeditated murder with its corresponding lesser-included offenses, because the evidence did not produce a rational basis to acquit him of first degree murder under a felony murder theory but convict him of second degree murder or manslaughter. The district court therefore did not violate Banks’ right to due process and did not otherwise prejudicially err when it refused to give the instructions requested by Banks

Tuesday, August 11, 2009

Nebraska Supreme Court hands down 120 day suspension against Douglas County Court Judge Marcuzzo for steering his nephew's domestic disturbance case away from "stern" Judge White to a judge who gave the nephew probation and also for leaving profane phone messages with prosecutors who were handling cases in his court. In re Complaint Against Marcuzzo, S-35-080001, 278 Neb. 331. Special Master had recommended a 3 month suspension.
Nebraska Supreme Court affirms misdemeanor assault conviction and 100 day sentence when victim did not testify except through the county court's receiving into evidence her 911 recorded call. State v. Thompson, S-08-1134, 278 Neb. 320 District Court on appeal ruled tape was inadmissible hearsay but admitting the tape was harmless error. Defendant did not raise a confrontation objections. an appellant must show that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence in a case tried without a jury. State v. Harms, 264 Neb. 654, 650 N.W.2d 481 (2002) (supplemental opinion). The appellant must show that the trial court made a finding of guilt based exclusively on the erroneously admitted evidence. State v. Lara, 258 996, 607 W.2d 487 (2000). If there is other sufficient evidence to support the finding of guilt, the conviction will not be reversed. Id. The burden rests on the appellant in a bench trial because of the presumption that the trial court, sitting as the fact finder, disregards inadmissible evidence. State v. Harms, supra. We conclude there was other sufficient evidence to support the finding of guilt.
Plaintiffs who sued the City of Omaha for injuries children suffered in sledding accident at Memorial Park won partial summary judgment on liability under the Political Subdivision Tort Claim Act. City sought to appeal the liability finding and obtained certification from the trial court that it was a final order. Nebraska Supreme Court dismisses appeal because a partial summary judgment can never be a final order, even if a party tries to certify it under 251315 Connelly v. City of Omaha, S-08-1011, 278 Neb. 31 "no final order was entered (or determination made) regarding damages as required by § 25-1902, and accordingly, the court could not have directed the entry of a final judgment within the meaning of § 25-1315(1). Because the judgment does not dispose of the entirety of any one claim, it cannot be made an appealable judgment by recourse to § 25-1315.21."

Sunday, August 09, 2009

Defendant convicted of sex crime who was not in custody, probation or parole could not challenge requirement he register as a sex offender through post-conviction proceedings. State v. York, S-08-884, 278 Neb. 306 Defendant claims that this requirement renders him "in custody under sentence" such that he should be permitted to seek relief under the Nebraska Postconviction Act. See § 29-3001. We conclude that an individual who is subject to the registration requirements under the SORA (Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2008)) is not "in custody under sentence" for purposes of the Nebraska Postconviction Act. See § 29-3001.
Nebraska Supreme court reverses summary judgment in rescuers action against motorist who slid off Interstate 80. Motorist who slid off road could be negligent and injured motorist who suffered amputate foot in accident that occurred while he was trying to help defendant could be a rescuer. Rasmussen v. State Farm Mut. Auto. Ins. Co., S-08-747, 278 Neb. 289 "We conclude that the district court should have applied the rescue doctrine to the facts of this case. Here, we find no reason to make a distinction between the negligence of the person being rescued which is a proximate cause of injury to the rescuer and the negligence of a third party which placed the person to be rescued in peril and caused injury to another who attempted the rescue."
"The case is over and done." Nebraska Supreme Court overrules most recent iteration of family dispute over assets of local Omaha business and refuses to reinstate lawsuit against company that some relatives brought. Ferer v. Aaron Ferer & Sons, S-08-534, 278 Neb. 282 "Appellants also claim the district court erred in denying their motion for an order nunc pro tunc reinstating their ...cause of action for involuntary liquidation.The (trial court in its order) expressly stated that it intended to dismiss the sixth cause of action and that the dismissal was "no mistake." We find that the court has been extremely patient in dealing with appellants’ repeated attempts to retry issues that have previously been decided. The court did not abuse its discretion in denying appellants’ motion for an order nunc pro tunc. we conclude that the district court did not abuse its discretion in refusing to allow appellants to resurrect causes of action that have merely been repackaged and rewrapped. The (plaintiffs' case of Aaron versus defendants) is over and done.
Nebraska Supreme Court overrules claim of ineffectiveness of trial counsel for allegedly not pointing out errors to pro se defendant previous trial counsel had committed. Further no ineffectiveness of appellate counsel for raising trial counsel ineffectiveness on appeal because appellate counsel if different from trial counsel must raise it on direct appeal if issues are apparent on record. State v. Dunster, S-08-227, 278 Neb. 268 Dunster argues that direct appeal counsel was ineffective in raising, on direct appeal, the issue of ineffective assistance of trial counsel. But direct appeal counsel’s performance was not deficient in that regard.
Lincoln chiropractor who had earlier career as a mortician loses another attempt to reduce alimony award. Metcalf v. Metcalf, S-07-1346, 278 Neb. 258 Nebraska Supreme Court modifies rule on changed circumstances when to allow modification of a divorce decree. "a judgment for alimony may be modified only upon a showing of facts or circumstances that have changed since the last order granting or denying modification was entered. But once some change has been established since the last request, the analysis focuses on the change in circumstances since alimony was originally awarded or last modified. We adopt this rule because it recognizes the force of res judicata; modification will be considered only when there has been a change in circumstances since the last request for modification. But if there has been no change, modification is not justified, because the request is essentially the same as the last request."

Saturday, August 08, 2009

Thank you Senator Nelson for voting FOR Sonia Sotomayor to the Supremes: Thank you Senator Nelson for voting for Judge Sotomayor to the Supreme Court. You showed great courage in resisting the hypocritical call of Republicans to disqualify any minority candidate who failed to meet the strict tests we must apply to white politicians when those white public figures try to discuss race. Puerto Ricans have been historically disadvantaged since we occupy their territory give their residents social security and subsidize their industries. Judge Sotomayor early on showed herself to be a fine example of the wise Latina woman in her Yale Law Journal Note that advocated massive reparations from the United States to Puerto Rico when it entered the Union.
Thanks Licensing Board: From Dan Ullman, President of Nebraska Psychological Association his letter to the editor in the Journalstar on August 5, 2009:
The Nebraska Psychological Association expresses its appreciation on the part of the licensing boards for psychology and mental health practice in resisting an attempt to discriminate against vulnerable clients in providing mental health services or referrals for services. The focus of this attempt to prevent clinical services includes sexual orientation, religion, gender identity or other reasons based on any provider's claim of a "moral and religious conviction."

Most disturbing is the continuing attempt by the Department of Health and Human Services to coerce licensing boards to establish this discrimination regulation by placing on hold for 18 months needed changes approved by the boards ("Agency urges compromise," July 19, LJS).

Newspaper articles have emphasized Health and Human Services' attempt to discriminate against services to homosexuals. Not mentioned is the proposed discrimination policy against other clients on the basis of a provider's claim of a "moral or religious conviction."

The Nebraska Psychological Association's Code of Ethics protects the rights, welfare and safety of all clients, not just those who belong to any particular personal orientation. The code mandate is "Do No Harm;" it is not to protect the prejudices of providers.

Under the current Code of Ethics, if a mental health provider is unable to provide services, the provider must refer services in the terms of behavioral health needs of clients, not the needs or prejudices of a provider.

Dan Ullman, president, Nebraska Psychological Association

I couldnt agree more but I dont think Dr Ullman goes far enough so I sent the NPA my suggestions to elminate all homophobia from the psychological profession: How commendable of Dr Ullman for putting homosexual patients ahead of the "conscience" of those psychological professionals who would refuse to treat them. As you know "conscience" for these fanatic religious practitioners really means their freedom to be fearful, ignorant and hateful. However I am afraid that merely removing "conscience" rules from professional licensing standards does not go far enough to ensure the highest professional standards in your field. No, you have to also eliminate the hate from the profession. After all how to do ensure that some psychologists who harbor bigoted thoughts about homosexuality would not take on homosexuals' cases with the intention of harming them, or horrors trying to convert them to heterosexuality? I urge the Nebraska Psychological Association if you have not already, to recommend the following rules: 1. licensed psychologists must sign affidavits when applying for a license or renewing one that they fully embrace homosexuality as a healthy and in some respects a superior lifestyle to traditional marriage. They should encourage youngsters to discover their sexuality as early as possible. 2. psychologists must register which churches they attend and allow licensing boards to review the teachings of those churches to identify any latent or obvious homophobic messages. 3. In cases when homosexuals allege , they could discover from the professionals computers, diaries, notes and writings anything that questions homosexuality. 4. Psychologists who might harbor bigoted and outdated views on homosexuality or traditional marriage would have to undergo graduated probationary educational programs to purge themselves of these views. In case when the professional refuses to distance himself from actual homophobic views or churches that preach this hate, they should face discipline. Again thank you for your efforts to eliminate hate from our society. After all we can learn a lot from brave leaders like Hitler and Mao. They knew you had to go after the educated professions first before enslaving the masses