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Fla. Stat. 893.13(6)(a), cocaine possession, is divisible by the identity of the drug possessed, permitting the use of the modified categorical approach to determine what substance was involved in a particular offense. The Eleventh Circuit denied the petition for review, holding that the record unambiguously demonstrated that petitioner's conviction involved cocaine, a federally controlled substance under 8 U.S.C. 1227(a)(2)(B)(i). View "Guillen v. U.S. Attorney General" on Justia Law

Posted in: Criminal Law

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Plaintiff filed suit against NCL, the owner and operator of a cruise ship, alleging negligence claims after he fell down an emergency-exit hatch in an area designated for crew members only. The Eleventh Circuit held that plaintiff as a Canadian citizen and NCL as a Bermuda company, with its principal place of business in Florida, did not support the exercise of jurisdiction under 28 U.S.C. 1332(a)(2). However, the district court validly exercised admiralty jurisdiction over the case under section 1333(1). On the merits, the court affirmed the district court's dismissal of plaintiff's claim that the cruise line was negligent in over-serving him alcohol, holding that the claim was time-barred and the claim did not relate back. The court affirmed the district court's grant of summary judgment on plaintiff's claim that the cruise line was negligent for letting him fall down the hatch where NCL's uncontroverted record showed that no injuries similar to plaintiff's had been reported on any of NCL's ships in the last five years, and plaintiff failed to present sufficient evidence of negligence on the part of NCL's crew. View "Caron v. NCL (Bahamas), Ltd." on Justia Law

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After CIC entered into a tax avoidance scheme and claimed over $27 million in capital losses, the IRS issued a Final Partnership Administrative Adjustment (FPAA) disallowing CIC's claimed capital loss and fee deductions on its 2000 tax return. The IRS also applied a gross valuation misstatement penalty pursuant to 26 U.S.C. 6662 and 6664. The Eleventh Circuit affirmed the tax court's judgment upholding the IRS's decisions. The court held that the tax court did not err in concluding that CIC's CARDS transaction lacked economic substance or business purpose, nor in finding that CIC was liable for a 40% gross valuation misstatement penalty for its 2000 tax return. The court also held that the tax court did not clearly err in determining that CIC lacked reasonable cause and good faith in making an understatement on its 2000 tax return. View "Curtis Investment Co., LLC v. Commissioner" on Justia Law

Posted in: Tax Law

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The Eleventh Circuit affirmed defendant's conviction for being a felon in possession of a firearm. The court held that the district court did not abuse its considerable discretion under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in admitting expert testimony concerning DNA evidence directly linking defendant to the firearm. Even if the district court had abused its discretion in allowing the expert testimony, any claimed error would have been harmless. View "United States v. Barton" on Justia Law

Posted in: Criminal Law

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For a debt to be "provided for" by a plan under 11 U.S.C. 1328(a), the bankruptcy plan must make a provision for or stipulate to the debt in the plan. The Eleventh Circuit affirmed the bankruptcy court and district court, holding that debtor's bankruptcy plan did not discharge the Credit Union's mortgage. In this case, debtor's plan did nothing more than state that the Credit Union's mortgage would be paid outside the plan, but it was not "provided for" and was not discharged. The court further held that, even if the debt was provided for, discharge of the debt would violate section 1322(b)(2) by modifying the Credit Union's right under the original loan documents to obtain a deficiency judgment against debtor. Finally, the issue of whether the Credit Union's failure to file a proof of claim for its first mortgage resulted in the mortgage's discharge was not preserved for appeal. View "Dukes v. Suncoast Credit Union" on Justia Law

Posted in: Bankruptcy

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A district court may, in appropriate circumstances, issue a preliminary injunction granting a pipeline company immediate access to property that it has an established right to condemn under the Natural Gas Act. Transcontinental filed consolidated condemnation proceedings against property owners in order to obtain an easement for the construction of a natural gas pipeline. The Eleventh Circuit affirmed the district court's grant of summary judgment for Transcontinental on the issue of whether it had a right to condemn certain portions of defendants' properties under Section 7(h) of the Natural Gas Act. The court held that the district court did not err in concluding that there was no genuine issue of material fact as to whether Transcontinental held a valid certificate of public convenience and necessity; the property to be condemned was necessary for the natural-gas pipeline authorized by the certificate; and Transcontinental could not acquire the necessary easements by contract. The court also affirmed the district court's issuance of a preliminary injunction allowing Transcontinental to immediately enter defendants' properties and begin construction. The court held that the district court did not abuse its discretion in requiring Transcontinental to post a surety bond rather than a cash deposit. View "Transcontinental Gas Pipe Line Co., LLC v. Cochran" on Justia Law

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Hi-Tech filed suit alleging that the label of a protein-powder supplement distributed by HBS misled customers about the quantity and quality of protein in each serving, violating both the Georgia Uniform Deceptive Trade Practices Act and the federal Lanham Act. The district court dismissed the complaint. The Eleventh Circuit affirmed the district court's dismissal of the state law claim because it was preempted by the Food, Drug, and Cosmetics Act (FDCA). However, the court reversed the district court's dismissal of the Lanham Act claim, and rejected HBS's arguments that the FDCA barred the claim under the Lanham Act. In this case, Hi-Tech's Lanham Act claim would only require a court to determine whether the protein-content representations on the HexaPro label were misleading to consumers in the context of the label's failure to specify the sources of the nitrogen measured by the federal test. Therefore, this inquiry would not require a court to interpret or apply the FDCA to determine whether or not the marketing of the supplement was deceptive. View "Hi-Tech Pharmaceuticals, Inc. v. HBS International Corp." on Justia Law

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In September 2017, Calixto filed a petition, seeking the return of his 5-year old daughter, M.A.Y., to Colombia, under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act, 22 U.S.C. 9001. Calixto had signed a travel consent form allowing M.A.Y. to travel from Colombia to the U.S. with her mother, Lesmes, from November of 2015 until November of 2016. Calixto alleged that Lesmes had wrongfully retained M.A.Y. in the U.S. and away from Colombia, her country of habitual residence, beyond November of 2016. The district court denied the petition, finding that the parents had shared an intent to change M.A.Y.’s habitual residence from Colombia to the U.S. and that M.A.Y.’s habitual residence had subsequently become the U.S. through acclimatization. The district court did not address whether Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Lesmes and M.A.Y. in the U.S. or whether that intent was vitiated once Calixto was unable to come to the U.S. The Eleventh Circuit remanded, stating that the answers to those questions are critical and that shared intent is a factual determination. View "Calixto v. Lesmes" on Justia Law

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The 1994 “Engle” Florida class action against major cigarette manufacturers, was decertified, but “Phase I findings” concerning the defendants’ conduct may be used in individual suits. Berger sued Philip Morris for smoking-related injuries. A jury awarded Berger compensatory and punitive damages. The Eleventh Circuit affirmed the denial of Philip Morris’s motions for a new trial based on improper closing argument, and for judgment as a matter of law on all claims based on due process and preemption principles. Eleventh Circuit precedent holds, categorically, that use of Phase I findings to establish Engle-progeny tort claims is constitutionally permissible. The court reversed judgment as a matter of law, in favor of Philip Morris, on intentional tort claims and remanded for the entry of judgment in Plaintiff’s favor on fraudulent concealment and conspiracy to fraudulently conceal claims and for reinstatement of the punitive damages award. Engle-progeny concealment claims arise from a sustained effort to hide the truth about the health hazards of smoking. Florida courts hold that Engle-progeny plaintiffs are not required to show reliance on a specific statement. Berger’s testimony that peer pressure influenced her decision to start smoking and that she chose her cigarette brand based on personal preferences did little to rebut the reasonable inference that Philip Morris’s disinformation campaign confused her about the health hazards of smoking; a reasonable juror could have concluded that if she had known the whole truth about smoking, she would have quit. View "Cote v. Philip Morris USA, Inc." on Justia Law

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Petitioner, a native and citizen of Colombia, petitioned for review of the BIA's decision affirming the IJ's order of removal. The court held that substantial evidence supported the BIA's factual finding regarding petitioner's statute of conviction and the court lacked jurisdiction under Immigration and Nationality Act section 242 to grant him relief. Therefore, the court dismissed the petition for review in part. In regard to petitioner's remaining claims, the court held that DHS was not required to file a cross-appeal to advance its controlled substance argument on appeal to the BIA, and the BIA did not err in considering that argument. Furthermore, petitioner's drug-trafficking crime was an aggravated felony, the BIA did not err in denying petitioner's motion for remand to pursue a section 212(h) waiver, and the court denied petitioner's request for a remand to seek such relief. View "Bula Lopez v. U.S. Attorney General" on Justia Law

Posted in: Criminal Law