[ January 31, 2003 ]
003942P.pdf 01/31/03 United States v. Earnest Washington
U.S. Court of Appeals Case No. 00-3942
and No. 01-2351
Eastern District of Missouri
Criminal case - criminal law. Evidence was sufficient to
support convictions for drug and murder-for-hire
conspiracies; prosecutor's refusal to grant immunity to
defendants' proposed witnesses did not constitute
prosecutorial misconduct; court did not abuse its discretion
by permitting witness to invoke the Fifth Amendment;
court did not abuse its discretion by refusing to sever cases
or declare a mistrial when one of the defendants indicated
he had bought crack from the other defendant; a mistrial
was not required when a witness made a reference to a
prior trial; jailhouse statements were admissible as the
inmate who testified about the conversations was not acting
as a government agent; no error in enhancing sentence for
obstruction of justice based on the court's conclusion
defendant perjured himself at trial.
013206P.pdf 01/31/03 Ken Hammer v. City of Osage Beach
U.S. Court of Appeals Case No. 01-3206
Western District of Missouri
Civil case - employment law. Plaintiff's termination did
not violate the applicable Missouri statute - Mo. Rev. Stat.
Sec. 79.240; plaintiff had a liberty interest in clearing his
name, but the court correctly found he received sufficient
notice and hearing; complaint did not adequately plead
a claim for breach of contract; district court did not err
in finding comments which served as the basis for
defamation claim were non-actionable privileged
opinions expressed as part of an ongoing political
dispute; district court did not abuse its discretion in
denying second motion to amend complaint.
013991P.pdf 01/31/03 John Saulsberry v. St. Mary's Univ.
U.S. Court of Appeals Case No. 01-3991
District of Minnesota
Civil case - civil rights. Plaintiff failed to show he was
similarly situated to white employees who received
greater percentages of tuition remission; district court
did not err in granting summary judgment on retaliation
claim as plaintiff failed to show a causal connection
between any adverse action and his protected activity.
021311P.pdf 01/31/03 Breanne Bennett v. Hidden Valley Golf
U.S. Court of Appeals Case No. 02-1311
Eastern District of Missouri
Civil case - torts. Under Missouri law, a voluntary skier
assumes the risks inherent in or incidental to skiing,
regardless of her subjective knowledge of those risks;
Instructions requiring the jury to find for defendant if
it determined that the conditions on the ski slope at the
time plaintiff was injured were inherent risks of skiing
properly submitted the law; instructions also properly
set out the duty of care a proprietor of a place of public
amusement owes a customer; brief reference to plaintiff's
illegal drug use in opening statement was relevant to
her injuries and the court did not err in overruling plaintiff's
objection to the remark; videotape of scene was not offered
as a reconstruction and plaintiff was not prejudiced by its
admission; comment about plaintiff's companions was
not outside the bounds of fair comment during opening
statements; evidence was sufficient as a matter of law to
support jury verdict for defendant.
022924P.pdf 01/31/03 Kitty Fern Eaddy v. Donnie Joe Yancey
U.S. Court of Appeals Case No. 02-2924
Eastern District of Arkansas
Civil case - Section 1983. This court will not review the
denial of summary judgment motion after a full trial on the merits.
022929U.pdf 01/31/03 United States v. Mauro Dominguez
U.S. Court of Appeals Case No. 02-2929
District of Nebraska
Criminal case - Sentencing Guidelines. District court did not
err in calculating the amount of drugs attributable to defendant.
023170U.pdf 01/31/03 Marjorie Johnson v. Jan McClurg, et al.
U.S. Court of Appeals Case No. 02-3170
Southern District of Iowa
Civil case. District court did not err in dismissing complaint
for failure to state a claim.
[ January 30, 2003 ]
012739P.pdf 01/30/03 United States v. Fenaris Braggs
U.S. Court of Appeals Case No. 01-2739
Northern District of Iowa
Criminal case - Sentencing Guidelines. District court did
not err in assessing a two-level enhancement for possessing
a dangerous weapon during the commission of a drug offense
as the record established the weapon had a substantial nexus
to the criminal activity.
013626U.pdf 01/30/03 United States v. Adolfo B. Lara
U.S. Court of Appeals Case No. 01-3626
Western District of Missouri
Criminal case - criminal law. District court did not abuse its
discretion in denying motion to withdraw guilty plea; plea
agreement set forth base offense level and defendant could
not challenge that on appeal; court did not err in posing
two-level role-in-the-offense enhancement.
021521P.pdf 01/30/03 Luigino's, Inc. v. Robert Peterson
U.S. Court of Appeals Case No. 02-1521
District of Minnesota
Civil case - Torts. Plaintiff failed to assert facts sufficient to
support the finding of a causal link between any of defendant's
alleged misdeeds and its claim for damages, and the district
court properly granted defendant's motion for summary judgment.
021693P.pdf 01/30/03 USA v. Gary Briscoe
U.S. Court of Appeals Case No. 02-1693
Northern District of Iowa
Criminal case - criminal law. Seizure of marijuana seeds
and stems from defendant's trash was sufficient to
establish probable cause for issuance of a warrant; thus
the warrant was properly issued even if some of the other
information supplied in the application was not correct or complete.
[ January 29, 2003 ]
021151P.pdf 01/29/03 Joshua Hunt v. Lincoln Cty. Hosp.
U.S. Court of Appeals Case No. 02-1151
Eastern District of Missouri
Civil case - Emergency Medical Treatment and Active Labor
Act. Emergency room treatment plaintiff received for foot
injury was appropriate for the purposes of the Act and he did
not state a valid federal claim against the providers.
021939U.pdf 01/29/03 Scott Shepard v. Lance Ripperger
U.S. Court of Appeals Case No. 02-1939
Southern District of Iowa
Civil case - civil rights. In light of report of stolen goods,
police had reasonable suspicion to stop and question
plaintiff, and his refusal to provide his name gave the
officers grounds for his arrest; officers were entitled to
qualified immunity for arresting plaintiff in connection
with their official duties.
022639P.pdf 01/29/03 Mike's, Inc. v. Kristopher A. Tinnon
U.S. Court of Appeals Case No. 02-2639
Eastern District of Missouri
Civil case - Admiralty. Under Rule F(9) of the Supplemental
Rules for Certain Admiralty and Maritime Claims, the
district court did not err in finding that venue for employer's
limitation proceeding was in the Southern District of Illinois;
court did not abuse its discretion under the rule by dismissing
case rather than transferring it to the Southern District.
022819P.pdf 01/29/03 USA v. Anthony Johnson
U.S. Court of Appeals Case No. 02-2819
Western District of Missouri
Criminal case - Sentencing Guidelines. District court did not
err in imposing a two-level enhancement for obstruction of
justice based on defendant's attempt to suborn perjured
testimony; dissent by Judge William Jay Riley.
022822P.pdf 01/29/03 Rick Freeman v. Leonard Graves
U.S. Court of Appeals Case No. 02-2822
Southern District of Iowa
Prisoner case - habeas. District court erred by applying the
wrong standard to evaluate prisoner's claim of ineffective
assistance of counsel; the Cronic standard, presuming
prejudice from deficient performance, only applies when
the attorney's failure is complete and did not apply to
this case; under the proper Strickland standard, the
prisoner could not show actual prejudice and was not
entitled to relief.
[ January 28, 2003 ]
013764P.pdf 01/28/03 Pat Costner v. URS Consultants
U.S. Court of Appeals Case No. 01-3764
Eastern District of Arkansas
Civil case - False Claims Act. District court did not err in
granting summary judgment on False Claims Act claims, as
plaintiff failed to produce evidence raising a genuine issue
of material fact as to whether the information allegedly
withheld from the EPA was even relevant to the agency's
decision to pay the contractor; further, the record established
that EPA was aware of the problems and that the contractor
worked closely with the EPA to resolve them, thus negating
the required scienter for a False Claims Act action; with
respect to certain claims that monitoring devices were tampered
with, plaintiff failed to plead those claims with the required
particularity, and the district court did not err in dismissing them.
013809P.pdf 01/28/03 USA v. Thomas P. Lalley
U.S. Court of Appeals Case No. 01-3809
District of South Dakota
Criminal case - Sentencing Guidelines. Evidence was sufficient
to support an upward departure for management of a
criminal organization.
021771P.pdf 01/28/03 United States v. Edwardo Flores Fitz
U.S. Court of Appeals Case No. 02-1771
District of North Dakota
Criminal case - Criminal law. Evidence was insufficient
to support drug conviction, as the government failed to
show defendant was aware of conspiracy or that he
knowingly agreed to join it.
021902U.pdf 01/28/03 Pat Costner v. URS Consultants
U.S. Court of Appeals Case No. 02-1902
Eastern District of Arkansas
Civil case - civil procedure. District court did not err in
refusing to grant plaintiffs a default judgment against
non-responding defendant as there were no separate
claims against that defendant and judgment against it
could not be reconciled with the verdict in favor of its
joint venture partner.
022725U.pdf 01/28/03 Jessie Benford v. Home Depot U.S.A.
U.S. Court of Appeals Case No. 02-2725
Eastern District of Missouri
Civil case - civil rights. Employer's judgment as a matter
of law in employment discrimination action affirmed
without comment.
022827U.pdf 01/28/03 Kenneth W. Hinds v. United States
U.S. Court of Appeals Case No. 02-2827
Western District of Arkansas
Criminal case -Sentencing Guidelines. Claim that Amendment
613, which restricts the use of stipulations that establish
a more serious offense than the offense of conviction,
authorized resentencing was properly rejected because even
if the amendment did apply retroactively, Hinds did not
qualify for relief under the section because he was not
sentenced on stipulations.
023229U.pdf 01/28/03 United States v. Lee Sherman Beene
U.S. Court of Appeals Case No. 02-3229
Eastern District of Arkansas
Criminal case - criminal law. Variety of claims raised in Anders
brief rejected.
023433P.pdf 01/28/03 US ex rel P. Costner v. URS Consultants
U.S. Court of Appeals Case No. 02-3433
Eastern District of Arkansas
Civil case - Federal Claims Act. 31 U.S.C. Sec. 3730(d)(4)
does preclude an award of costs under Fed.R.Civ. P. 54; the
amount of the costs awarded was not an abuse of the district
court's discretion.
[ January 27, 2003 ]
021564U.pdf 01/27/03 Antonio Garcia Lopez v. INS
U.S. Court of Appeals Case No. 02-1564
Agency
Petition for review - Immigration. ILJ did not err in denying
application for asylum as petitioner failed to show past
persecution or a well-founded fear of future persecution if
he was returned to Guatemala.
022368P.pdf 01/27/03 Geronima Mayo v. John Ashcroft
U.S. Court of Appeals Case No. 02-2368
Agency
Petition for review - Immigration. Board of Immigration
Appeals did not set forth sufficient grounds for rejecting
the ILJ's finding that petitioner did not materially
misrepresent herself at the time of her entry to the U.S.,
and the Board erred in setting aside the grant of a waiver
of eligibility; in light of the procedural delay in the INS's
handling of the case, the matter is remanded with direction
to grant petitioner citizenship and a waiver of eligibility under
Section 212(k).
022500P.pdf 01/27/03 United States v. David R. Boettger
U.S. Court of Appeals Case No. 02-2500
District of Nebraska
Criminal case - Sentencing Guidelines. District court did
not err in denying request for acceptance-of-responsibility
reduction in light of defendant's post-arrest conduct, which
included fleeing from custody and continued use of illegal drugs.
022663U.pdf 01/27/03 Tyrone A. Davis v. Dr. Stephan G. Lemar
U.S. Court of Appeals Case No. 02-2663
District of Nebraska
Prisoner case - prisoner civil rights. Plaintiff failed to
show deliberate indifference to his medical needs, and the
district court did not err in granting defendants' motion for
summary judgment.
022731U.pdf 01/27/03 United States v. Ricardio Dale Smith
U.S. Court of Appeals Case No. 02-2731
District of Minnesota
Criminal case - Sentencing Guidelines. Defendant knowingly
and intelligently waived his right to appeal the sentence the
district court imposed.
[ January 24, 2003 ]
013040P.pdf 01/24/03 Gaming World Intl. v. White Earth Band
U.S. Court of Appeals Case No. 01-3040
District of Minnesota
Civil case - Indian law. District court did not err in finding it
had jurisdiction over petition seeking a declaratory judgment
concerning a gaming contract between plaintiff and the White
Earth Band; district court erred in compelling arbitration of
the dispute instead of staying the federal litigation in order
to permit tribal court remedies to be exhausted.
013758P.pdf 01/24/03 Glen Gibbons v. USA
U.S. Court of Appeals Case No. 01-3758
District of South Dakota
Civil case - civil procedure. District court did not abuse its
discretion in denying plaintiffs' motion for an extension
of time to file a notice of appeal pursuant to Fed. R. App.
P. 4(a)(5); attorney's absence on vacation and subsequent
illness did not establish excusable neglect.
013928P.pdf 01/24/03 SOB, Inc. v. County of Benton
U.S. Court of Appeals Case No. 01-3928
and No. 01-4022
District of Minnesota
Civil case - Constitutional Law. County had sufficient
evidence of adverse secondary effects to justify enactment
of ordinance banning live nude dancing, and the ordinance
was constitutional as applied to live nude dancing at
plaintiffs' club; ordinance was not overbroad as the record
did not support an inference that protected theatrical
activity was being chilled or that the ordinance would be
applied to theatrical productions; claim that ordinance could
be applied to prosecute otherwise lawful sexual activities in
motel rooms was without support and unreasonable; district
court erred in permanently enjoining enforcement of the
ordinance by custodial arrest of the performers as there was
little risk that a custodial arrest would restrain a dancer's
protected expressive conduct in later performances, and
any issue of prior restraint which might arise from such
arrests should be resolved by the state court on a specific
factual record.
023954U.pdf 01/24/03 Ellery R. Blue Hair v. Father Gary Lantz
U.S. Court of Appeals Case No. 02-3954
District of South Dakota
Civil case. Dismissal for lack of subject matter jurisdiction affirmed
without comment.
[ January 23, 2003 ]
013677P.pdf 01/23/03 Jack Kushner v. Beverly Enterprises
U.S. Court of Appeals Case No. 01-3677
Eastern District of Arkansas
Civil case - Securities law. District court did not err in finding
the complaints filed in the case failed to demonstrate a strong
inference of scienter and thus failed to state a claim of
securities fraud under the Private Securities Litigation Reform
Act of 1995.
022433U.pdf 01/23/03 Larry Sieler v. Marriott Intl.
U.S. Court of Appeals Case No. 02-2433
District of Nebraska
Civil case - employment law. Plaintiff failed to establish an
employment contract with defendant; district court did not
err in finding he was an at-will employee.
022458P.pdf 01/23/03 Amy Haug v. Bank of America
U.S. Court of Appeals Case No. 02-2458
and No. 02-8009
Eastern District of Missouri
Civil case - Consumer law. Section 8(b) of the Real Estate
Settlement Procedures Act is an anti-kickback provision
that unambiguously requires at least two parties to share
a settlement fee in order to violate the Act and in order to
state a claim for violation of the Act, plaintiffs must plead
facts showing defendant illegally shared fees with a third
party; district court erred in interpreting this provision and
in relying on a HUD Policy Statement; case remanded for
further proceedings.
022459U.pdf 01/23/03 Peggy A. Davis v. Village of Decatur
U.S. Court of Appeals Case No. 02-2459
District of Nebraska
Civil case - civil rights. Davis's position as village clerk was
an appointment and neither Nebraska law nor the village's
personnel policies created a legitimate claim of entitlement
to continued employment or a protectable property interest
in the position; at the time of her discharge, the deputy clerk
was an at-will employee and had no protectable property
interest in her position.
[ January 22, 2003 ]
021397P.pdf 01/22/03 Ronald C. Sulik v. Taney County
U.S. Court of Appeals Case No. 02-1397
Western District of Missouri
Prisoner case - prisoner civil rights. Prison mail box rule
governs the determination of when a prisoner's civil complaint is filed.
021971U.pdf 01/22/03 Frankie Levi Cole v. Frank X. Hopkins
U.S. Court of Appeals Case No. 02-1971
District of Nebraska
Prisoner case - habeas. Question of whether fraudulent intent
is a material element of the offense of theft by receiving stolen
property is a matter of Nebraska state law and could not be
reviewed in a federal habeas proceeding.
022044U.pdf 01/22/03 Wayne Allen Berry v. Leonard Graves
U.S. Court of Appeals Case No. 02-2044
Southern District of Iowa
Prisoner case - habeas. District court did not err in upholding
state court decision that prosecutor's comments did not violate
Berry's right to silence.
022090U.pdf 01/22/03 Matt Brown v. MO Highway Patrol
U.S. Court of Appeals Case No. 02-2090
Western District of Missouri
Civil case - civil rights. District court did not err in granting
defendant summary judgment on failure to promote claim,
as plaintiff failed to prove he was similarly qualified to the
promoted employees; claim that plaintiff was retaliated against
for exercising his First Amendment rights was procedurally
barred by res judicata.
022423U.pdf 01/22/03 United States v. Kyle S. Love
U.S. Court of Appeals Case No. 02-2423
Eastern District of Arkansas
Criminal case - criminal law. Warrant was supported by
probable cause.
022789U.pdf 01/22/03 USA v. Jermaine L. Lathern
U.S. Court of Appeals Case No. 02-2789
Eastern District of Missouri
Criminal case - Sentencing Guidelines. Application note six
to Guidelines Sec. 5G1.3 required the district court to
impose a sentence consecutive to defendant's undischarged
terms of imprisonment for his two state probation
revocation sentences.
022888U.pdf 01/22/03 Sharen A. Postels v. JoAnne B. Barnhart
U.S. Court of Appeals Case No. 02-2888
Southern District of Iowa
Civil case - Social Security. ALJ did not err in finding claimant
did not show she suffered from a severe mental impairment
before her insured status expired.
023029U.pdf 01/22/03 United States v. Elijah H. Harris III
U.S. Court of Appeals Case No. 02-3029
District of Nebraska
Criminal case - criminal law. Traffic stop was valid because
the officer saw a traffic violation and thus had probable cause
to make the stop; record supported finding that seized drugs
were in plain view.
023292U.pdf 01/22/03 United States v. Daniel F. Ward
U.S. Court of Appeals Case No. 02-3292
Western District of Missouri
Criminal case - Sentencing Guidelines. District court did not err
in imposing abuse-of-trust enhancement.
[ January 21, 2003 ]
011947P.pdf 01/21/03 Brian Olander v. State Farm Mutual
U.S. Court of Appeals Case No. 01-1947
District of North Dakota
Civil case - contracts. In a 9-to-3 en banc opinion, the court
holds the agent agreement between the parties was
unambiguously terminable at will as a matter of law, and
the district did not err in declining to consider extrinsic
evidence plaintiff submitted when it granted defendant's
motion for summary judgment; dissent by Judge Lay;
dissent by Judge Heaney.
021264P.pdf 01/21/03 Edy Ikenokwalu-White v. INS
U.S. Court of Appeals Case No. 02-1264
Agency
Petition for review - Immigration law. Court has jurisdiction
under 8 U.S.C. Sec. 1105a(a) to review the Board of
Immigration Appeals' finding on moral character under
any aspect of 8 U.S.C. Sec. 1101(f); an ILJ may consider
expunged convictions in making a moral character
determination in conjunction with an application for
suspension of deportation; Board's interpretation of
8 U.S.C. Sec. 1254(a)(3) to permit consideration of
past, pre-statutory conduct in determining present moral
character is reasonable; however, while conduct predating
the relevant statutory period may be considered relevant,
such conduct cannot be used as the sole basis for an
adverse finding on that element; here, the Board's decision
that petitioner had failed to establish good moral character
during the three year statutory period was supported by
substantial evidence and Board's determination that
petitioner was not eligible for discretionary suspension
of deportation is affirmed.
022201P.pdf 01/21/03 Rashid Halabi v. John D. Ashcroft
U.S. Court of Appeals Case No. 02-2201
Agency
Petition for review - Immigration law. Unexhausted claims
would not be considered in review of a final order of removal;
a denial of discretionary relief, such as that offered under
8 U.S.C. Sec. 1229(b), is not judicially reviewable; order
finding petitioner removable and ineligible for cancellation
of removal affirmed.
022314P.pdf 01/21/03 Tiffany N. Osborne v. Jo Anne B. Barnhart
U.S. Court of Appeals Case No. 02-2314
Eastern District of Missouri
Civil case - Social Security. ALJ could rely on failure to
seek mental health treatment as a basis for concluding
claimant was not depressed; in any event, medical
evidence contradicted a diagnosis of severe depression;
Commissioner met her burden of proving there were a
significant number of jobs available which claimant
could perform.
022902U.pdf 01/21/03 United States v. David Pelowski
U.S. Court of Appeals Case No. 02-2902
District of Nebraska
Criminal case - Sentencing Guidelines. Discretionary refusal
to grant a downward departure is unreviewable.
026052P.pdf 01/21/03 Donald Nangle v. Kathy Surratt-States
U.S. Court of Appeals Case No. 02-6052
Eastern District of Missouri
Bankruptcy Appellate Panel. Order approving a settlement
between the trustee and debtor's wife which settled a
complaint to set aside two fraudulent transfers affirmed.
[ January 17, 2003 ]
013170P.pdf 01/17/03 USA v. Frenklyn Piggie
U.S. Court of Appeals Case No. 01-3170
and No. 02-9001
Western District of Missouri
Criminal case - Sentencing Guidelines. Apprendi challenge to
sentence rejected as defendant was sentenced below the
statutory maximum for his offense; government presented
sufficient evidence to support the setting of the offense
level and the imposition of an enhancement to the base
offense level; criminal history category was correctly
calculated; dissent by Judge Lay.
013336P.pdf 01/17/03 Michael Hawkins v. Gary Holloway
U.S. Court of Appeals Case No. 01-3336
Western District of Missouri
Civil case - civil rights. Four of the named plaintiff alleged
facts that would permit a reasonable jury to find that the
defendant sheriff, their supervisor, violated their clearly
established substantive due process rights by threatening
them with loaded weapons; one of the named plaintiffs
sufficiently alleged a constitutional violation based on
unwanted sexual contact and violation of her bodily
integrity; case remanded for further proceedings.
022472U.pdf 01/17/03 USA v. Jose Reyes-Sandoval
U.S. Court of Appeals Case No. 02-2472
District of Nebraska
Criminal case - Sentencing Guidelines. Challenge to
voluntariness of plea rejected.
022881P.pdf 01/17/03 United States v. Tony L. Mann
U.S. Court of Appeals Case No. 02-2881
Western District of Missouri
Criminal case - Sentencing Guidelines. When a defendant
is sentenced under 18 U.S.C. Sec. 922(g)(1), a Sec. 2K2.1(b)(5)
enhancement applies so long as the government can prove
that the defendant used or possessed any firearm in
connection with another felony offense; dissent by
Judge Morris S. Arnold
[ January 16, 2003 ]
013423U.pdf 01/16/03 USA v. Mark A. Wynn
U.S. Court of Appeals Case No. 01-3423
Western District of Missouri
Criminal case - Sentencing Guidelines. District court did not
err in imposing career-offender enhancement or in denying
request for a greater downward departure.
[ January 15, 2003 ]
012248P.pdf 01/15/03 Life Plus Intl. v. Robert L. Goodrich
U.S. Court of Appeals Case No. 01-2248
and No. 01-2882
Eastern District of Arkansas
Civil Case - diversity; breach of contract. Jury verdict in favor
of member in breach of contract action by network marketing
company is affirmed. District court did not abuse its discretion
in excluding witness testimony as timely or as rebuttal testimony.
Punitive damages award is upheld, as there was no plain error
in the instruction, the instruction fairly and adequately stated
Arkansas law, and no miscarriage of justice occurred as a result
of any confusion on whether the award was allocated to the
contract or tort claim. The district court did not abused its
discretion in rescheduling the trial date or in restricting the
time allowed for the company to present its case at trial.
012889P.pdf 01/15/03 Neosho R-V School v. Kathy Clark
U.S. Court of Appeals Case No. 01-2889
and No. 01-2975
Western District of Missouri
Civil Case - Individual with Disabilities Education Act. District
court's judgment finding school district failed to provide student
with free appropriate public education and award of attorneys
fees is affirmed. District court properly determined that IEP
was not reasonably calculated to provide an educational benefit
because it did not appropriately address the behavior problems
even if some progress was achieved. District court correctly
granted attorneys fees to prevailing party and did not abuse its
discretion in the amount of the fees. Expert witness fees is not
an allowable "cost" under IDEA. Judge Pratt dissents on costs issue.
013906P.pdf 01/15/03 Taylor Corp. v. Four Seasons
U.S. Court of Appeals Case No. 01-3906
District of Minnesota
Civil Case - copyright infringement. Grant of preliminary
injunction to greeting card company over six greeting card
designs is affirmed. Holder of certificates of registration on
greeting cards is prima facie evidence of validity of copyright.
District court did not erred in rejecting the doctrine of scenes
a faire and using the "total concept and feel" analysis.
Concurrence by Judge Riley.
021199P.pdf 01/15/03 United States v. Guy White Horse
U.S. Court of Appeals Case No. 02-1199
District of South Dakota
Criminal Case - Aggravated sexual abuse. Court correctly
assumed jurisdiction over defendant who is an Indian.
There is no plain error in whether defendant was charged
under section 1152 or 1153. District court did not abuse
its discretion in failing to compel the government to provide
forensic report and videotaped interviews because defendant
was able to view both. No Speedy Trial Act violation
occurred. The district court did not abuse its discretion in
holding the Abel Assessment was inadmissable under Rule
702 or in excluding evidence of alleged prosecutorial
misconduct. District court's answer to jury question was
harmless error. Dissent by Judge Heaney on the sufficiency
of the indictment.
021213P.pdf 01/15/03 USA v. Cassie Patterson
U.S. Court of Appeals Case No. 02-1213
Western District of Missouri
Criminal Case - resentencing. District court's downward departure
to a term of probation based on post-offense rehabilitation is
reversed. Departure for post-offense rehabilitation must be
atypical and the record was devoid of facts to warrant a
departure; court did not consider the adjustment for acceptance
of responsibility. Dissent by Judge Bright.
022025U.pdf 01/15/03 USA v. Jorge Mayorga
U.S. Court of Appeals Case No. 02-2025
District of Nebraska
Criminal Case- sufficiency of evidence and obstruction of
justice. Conviction for drug distribution is affirmed, as
evidence was sufficient to support conviction. District
court did not err in imposing an obstruction-of-justice
enhancement based on evidence defendant attempted to
influence witness not to testify.
022310U.pdf 01/15/03 Todd Templeton v. United Parcel
U.S. Court of Appeals Case No. 02-2310
Western District of Arkansas
Civil Case - Labor. District court's remand order, concluding
claims were not preempted, is appealable and proper.
022525U.pdf 01/15/03 United States v. Terrell E. Newman
U.S. Court of Appeals Case No. 02-2525
District of Nebraska
Criminal Case - Anders. Defendant did not object to criminal
history category V and PSR did not indicate any agreement
to a lower criminal history category. Refusal of district court
to depart downward is unreviewable because district court was
aware of its authority to depart and refused to do so. Conviction
is affirmed.
022672U.pdf 01/15/03 Education Resources v. Daniel A. Dettlaff
U.S. Court of Appeals Case No. 02-2672
District of Minnesota
Civil Case - repayment of defaulted student loan. District court's
decision is summarily affirmed.
022952U.pdf 01/15/03 Patricia Van Winkle v. Larry G. Massanari
U.S. Court of Appeals Case No. 02-2952
Western District of Arkansas
Civil Case - social security. Decision to deny social security
benefits is not supported by substantial evidence. ALJ decision
to discount opinion of treatment team and reasons for
discrediting subjective mental complaints are not supported
by record. Judgment is reversed with instructions to remand
the case for further administrative proceedings.
[ January 14, 2003 ]
011472P.pdf 01/14/03 Howard Lockridge v. Bd. of Trustees etc.
U.S. Court of Appeals Case No. 01-1472
Eastern District of Arkansas
Civil case - civil rights. The court en banc finds that plaintiff
cannot establish that his federal right to be free of racial
discrimination was violated when he was not promoted to
the position of dean of industrial technology and workforce
development at Phillips Community College of the University
of Arkansas, as plaintiff was notified of the job opening and
failed to apply; District Court erred in denying Chancellor's
motion for qualified immunity on the claim, and the other
defendants were entitled to summary judgment on the merits.
Dissent by Judge Heaney, joined by Judge McMillian,
Judge Murphy and Judge Smith.
021204P.pdf 01/14/03 United States v. Pedro Oropesa
U.S. Court of Appeals Case No. 02-1204
Western District of Missouri
Criminal case - criminal law. Search warrant was supported
by probable cause; warrantless arrest was supported by
probable cause.
021244P.pdf 01/14/03 United States v. Clarence W. Woodard
U.S. Court of Appeals Case No. 02-1244
Eastern District of Arkansas
Criminal case - criminal law. District court did not abuse its
discretion in permitting government to cross-examine defendant
about the disbursement of certain loan proceeds as the evidence
went to the financial condition of his business and reflected on
his credibility; district court did not err in giving a
deliberate-ignorance instruction; while instruction on conspiracy
omitted necessary language from the Eighth Circuit Model
Jury Instruction Sec. 5.06A, in light of the evidence of guilt
and the instructions as a whole, there was no plain error
requiring a new trial.
022030P.pdf 01/14/03 Robert Griffin v. CIR
U.S. Court of Appeals Case No. 02-2030
Agency
Civil case - Federal tax. Under 26 U.S.C. Sec. 7491(a) requiring
that the burden of proof shifts to the Commissioner when the
taxpayer provides credible evidence with respect to any
fact issue relevant to liability, credible evidence is the
quantity of evidence which, after critical analysis, the court
would find sufficient upon which to base its decision if no
contrary evidence were submitted; here, taxpayers did produce
sufficient credible evidence to support their personal
deduction of certain real property tax payments, and the tax
court erred in failing to shift to the Commissioner the burden
of proving the non-applicability of the Lohrke exception;
case remanded for further proceedings as to whether the
Commissioner met the burden of proof.
022138U.pdf 01/14/03 Katie Lee Scott v. Federal Express
U.S. Court of Appeals Case No. 02-2138
Eastern District of Arkansas
Civil case - civil rights. Defendant's judgment in
employment-discrimination case affirmed without comment.
022777U.pdf 01/14/03 USA v. Cesar Lupian-Barajas
U.S. Court of Appeals Case No. 02-2777
Northern District of Iowa
Criminal case - Sentencing Guidelines. District court clearly
warned defendant at the guilty plea that the court was not
bound by defense counsel's prediction concerning the
appropriate Guidelines range and fact that defendant was
sentenced at a higher range did not render his guilty plea
involuntary.
[ January 13, 2003 ]
013698P.pdf 01/13/03 Christina A. v. Jeff Bloomberg
U.S. Court of Appeals Case No. 01-3698
District of South Dakota
Prisoner case - prisoner civil rights. District court's approval
of the settlement agreement in the case did not, by itself,
create an enforceable judgement or a consent decree; as
a result, because the juvenile inmate class in this case did
not receive a consent decree or enforceable judgment, it
was not a prevailing party and was not entitled to attorneys'
fees; dissent by Judge Melloy.
013995P.pdf 01/13/03 St. Luke's Methodist v. Tommy G. Thompson
U.S. Court of Appeals Case No. 01-3995
Northern District of Iowa
Civil case - Medicare. Secretary's Medicare Provider Regulation
PRM Sec. 2534.5 was an unreasonable interpretation of
42 C.F.R. Sec. 413.30.
021816P.pdf 01/13/03 United States v. M. C. Worthon
U.S. Court of Appeals Case No. 02-1816
Western District of Missouri
Criminal case - criminal law. If a defendant's motion for
severance in pretrial proceedings is denied for lack of
authority, and the defendant fails to renew the motion
during trial or during post-trial proceedings, the issue is
waived; admission of testimony concerning prior thefts
was an abuse of discretion in light of the fact that the
Government did not show defendant's connection with
those thefts; however, the error was harmless in light of
the admissible evidence of defendant's guilt.
022092U.pdf 01/13/03 Beau T. Berge v. Greg VanLangen
U.S. Court of Appeals Case No. 02-2092
Northern District of Iowa
Prisoner case - prisoner civil rights. Claim that one of the
prison officer defendants swore a false affidavit in support
of a disciplinary proceeding stated a claim for a Section
1983 violation, and the claim should not have been dismissed.
023090U.pdf 01/13/03 Opal L. Coleman v. Dept. of Correction
U.S. Court of Appeals Case No. 02-3090
Eastern District of Arkansas
Civil case - civil rights. Plaintiff's evidence was insufficient
to show constructive discharge, hostile work environment or
any adverse employment action, and district court did not
err in granting defendant's motion for summary judgment.
026041P.pdf 01/13/03 Robert J. Blackwell v. Ronald U. Lurie
U.S. Court of Appeals Case No. 02-6041
Eastern District of Missouri
Civil case - Bankruptcy Appellate Panel. Bankruptcy court
did not err in finding judgment against Lurie was for a sum
certain, was not subject to modification, was not ambiguous
and was subject to collection and execution.
[ January 10, 2003 ]
013073P.pdf 01/10/03 NLRB v. Miller Waste Mills
U.S. Court of Appeals Case No. 01-3073
Agency
Petition for review of a Labor Board Decision. Board did
not err in finding that company failed to bargain with the
union in good faith and engaged in series of unfair labor
practices designed to undermine union support; Board
did not abuse its discretion in ordering company to
bargain with the union.
021293P.pdf 01/10/03 USA v. Richard Thomas Rose
U.S. Court of Appeals Case No. 02-1293
District of Minnesota
Criminal case - Sentencing Guidelines. In sentencing defendant
for interstate stalking and threatening communications, the
district court did not abuse its discretion in imposing a
six-level enhancement based on its finding that defendant
intended to carry out his threats to murder the victim's
children; court did not err in departing upwards based on its
findings that defendant's conduct was extreme and inflicted
extreme psychological injury on the victim.
021540P.pdf 01/10/03 United States v. Michael Shranklen
U.S. Court of Appeals Case No. 02-1540
Southern District of Iowa
Criminal case - Criminal law. District court erred in suppressing
the search of pouch found in defendant's vehicle; defendant
asked officer if he could retrieve the pouch, thereby justifying
a protective search for the officer's safety.
021544P.pdf 01/10/03 A. Curran-Kicksey v. JoAnne Barnhart
U.S. Court of Appeals Case No. 02-1544
Southern District of Iowa
Civil case - Social Security. District court did not err in
discounting claimant's subjective complaints of pain;
claimant was not entitled to have her claim reevaluated
under the recently revised listing of impairments;
dissent by Judge Heaney.
022251U.pdf 01/10/03 Jose Mejia Abarca v. John D. Ashcroft
U.S. Court of Appeals Case No. 02-2251
Agency
Petition for review - Immigration law. Petitioner failed to
establish he was the victim of past persecution or that he
had a well-founded fear of persecution if he returned
to Guatemala.
022265P.pdf 01/10/03 United States v. Martin Wilson, Jr.
U.S. Court of Appeals Case No. 02-2265
Eastern District of Missouri
Criminal case - criminal law. Under the well-settled law of
this circuit, 18 U.S.C. Sec. 922 does not violate the Second
Amendment.
022416P.pdf 01/10/03 Barbara Jones v. JoAnne B. Barnhart
U.S. Court of Appeals Case No. 02-2416
Western District of Missouri
Civil case - Social Security. ALJ did not err in finding claimant's
condition did not meet or equal a listed impairment; ALJ
satisfied the requirements of Regulation 96-6p by receiving
into evidence opinion of a state physician addressing the issue
of whether claimant's condition was equivalent to a listed
impairment; ALJ correctly applied medical vocational guidelines.
022555U.pdf 01/10/03 United States v. John E. Brave Bird
U.S. Court of Appeals Case No. 02-2555
District of South Dakota
Criminal case - Sentencing Guidelines. Sentence imposed upon
revocation of supervised release was not an abuse of discretion.
022569U.pdf 01/10/03 Larry D. Freeman v. Ron Sherman Adv.
U.S. Court of Appeals Case No. 02-2569
Eastern District of Arkansas
Civil case - civil rights. Defendant's summary judgment on
racial discrimination in employment claims affirmed without comment.
022630U.pdf 01/10/03 USA v. Valles-Herrera
U.S. Court of Appeals Case No. 02-2630
District of Nebraska
Criminal case - Sentencing Guidelines. Evidence supported
imposition of enhancement for possession of a firearm in
drug trafficking case.
022997U.pdf 01/10/03 Ella Mae Neal v. Western Union
U.S. Court of Appeals Case No. 02-2997
Eastern District of Missouri
Civil case - civil rights. Defendant's summary judgment
on racial discrimination in employment claims affirmed
without comment.
023039U.pdf 01/10/03 United States v. Frederick O. Bogar
U.S. Court of Appeals Case No. 02-3039
Western District of Arkansas
Criminal case - Sentencing Guidelines. District court did not
err in imposing an enhancement for possession of a firearm
in connection with the underlying drug offense.
[ January 09, 2003 ]
012755P.pdf 01/09/03 Jimmy Manus v. American Airlines
U.S. Court of Appeals Case No. 01-2755
Eastern District of Arkansas
Civil Case - damages from airplane accident. The district
court did not err in denying the motion for judgment as a
matter of law on the issue of loss of earning capacity
because sufficient evidence was presented to support jury's
award. District court did not abuse its discretion in
denying motion for new trial or remittitur; although at
the outer limits of that warranted by the evidence, the
awards are supported by the evidence.
013344P.pdf 01/09/03 Terry Sanders v. May Dept. Store Co.
U.S. Court of Appeals Case No. 01-3344
Eastern District of Missouri
Civil Case - Family and Medical Leave Act. Jury verdict
in favor of employer is affirmed. Jury verdict is not against
weight of evidence that employee did not request FMLA
leave, that the employer's notice was not insufficient, or
that the employee's waiver of FMLA was volitional. District
court did not abused its discretion in refusing employee's
jury instruction because instruction asked for district court
to engage in inappropriate fact finding.
013700P.pdf 01/09/03 DaimlerChrysler AG v. Donald H. Bloom
U.S. Court of Appeals Case No. 01-3700
District of Minnesota
Civil Case - trademark. District court properly granted summary
judgment to the owner of a licensed phone number (1-800-637-2333)
in trademark action. Owner of licensed phone number is not
liable under the Lanham Act to Mercedes because licensing of
a number is not a "use" of the mark.
021071P.pdf 01/09/03 Richie Co., LLP v. Lyndon Ins. Group
U.S. Court of Appeals Case No. 02-1071
District of Minnesota
Civil Case - breach of contract. District court properly granted
summary judgment because letter of agreement was an
unenforceable agreement to agree rather than an enforceable
contract under Minnesota law, as language provided for
future actions and agreements contemplated but not yet completed.
021368P.pdf 01/09/03 Marilyn Dedmon v. Carolyn Staley
U.S. Court of Appeals Case No. 02-1368
Eastern District of Arkansas
Civil Case - retaliation. District court's refusal to submit a
"cat's paw" instruction was not an abuse of discretion.
Evidence at trial supporting termination and dearth of evidence
supporting the presence of an unlawful motive for terminating
employee demonstrated that district court properly refused
to submit instruction.
021729P.pdf 01/09/03 United States v. Joshua Stapleton
U.S. Court of Appeals Case No. 02-1729
Western District of Missouri
Criminal Case - resentencing. District court clearly erred in
assessing criminal history points based on assault charges
that were uncounseled and proper criminal history should
be V rather than VI. District court's enhancement for
obstruction of justice when, at resentencing defendant stared
at probation officer in a hostile manner, was within the
scope of the remand and could be applied.
021966P.pdf 01/09/03 USA v. Jose Espino
U.S. Court of Appeals Case No. 02-1966
District of Nebraska
Criminal Case - conspiracy to distribute and possession
of methamphetamine. Evidence was sufficient to support
jury verdict, as admissible witness testimony supported
presence of a conspiracy. District court did not abuse its
discretion in allowing defendant's spouse to testify because
marital confidential communications privilege was properly
protected and spouse testified only to defendant's conduct
or to communications in the presence of third parties, and
spouse's testimony was not improper under the adverse
spousal testimony privilege. District court did not abuse
its discretion in allowing lay witnesses to testify of the weight
of the drugs based on their experience. Claims of ineffective
assistance of counsel are properly addressed in a habeas petition.
022007P.pdf 01/09/03 USA v. Wayne Brown
U.S. Court of Appeals Case No. 02-2007
Southern District of Iowa
Criminal Case - possession of counterfeit currency. District
court did not abuse its discretion in admitting hearsay
statements from secret service agent about presence of
bills bearing the same serial numbers in various locations
based on information obtained from a computerized database.
District court did not clearly err in imposing a two-level
enhancement for organizing a criminal activity based on
defendant's recruitment of another's assistance in passing
counterfeit bills and compensating him for it.
022887U.pdf 01/09/03 Larry D. Bittick v. Ireene Mooney
U.S. Court of Appeals Case No. 02-2887
Western District of Missouri
Civil Case - civil rights. Dismissal of civil rights action for
wrongfully collecting child support from military pension was
proper because post-deprivation remedies were available and
state-law remedies were not inadequate.
[ January 08, 2003 ]
013637P.pdf 01/08/03 Dennis Linehan v. Frank Milczark
U.S. Court of Appeals Case No. 01-3637
District of Minnesota
Prisoner case - habeas. Minnesota Supreme Court reasonably
applied the clearly established federal law when it reconsidered
the standard for civil commitment under the Minnesota
Sexually Dangerous Person Act; by requiring a finding of
lack of adequate control in relation to a properly diagnosed
disorder or dysfunction, as well as findings of past sexual
violence and resultant likelihood of future sexually dangerous
behavior, before imposing commitment, the state adequately
distinguished between the typical recidivist and the dangerous
offender and complied with substantive due process
requirements; there was sufficient evidence in the trial
record to establish prisoner met the standard for continued
confinement under the Act.
013647P.pdf 01/08/03 United States v. Leland Duane Young
U.S. Court of Appeals Case No. 01-3647
Northern District of Iowa
Criminal case - Sentencing Guidelines. District court did not err
in assessing two-level increase for obstruction of justice or in
denying reductions or downward departures for acceptance
of responsibility, pre-sentence confinement, defendant's health
and age or ineffective assistance of counsel.
013919P.pdf 01/08/03 TRI, Inc. v. Boise Cascade Office
U.S. Court of Appeals Case No. 01-3919
District of Minnesota
Civil case - Antitrust. District court did not err in finding
plaintiff failed to present sufficient evidence of an agreement
or conspiracy between defendants to restrict sale of plaintiff's
products to other customers; defendant Honeywell offered
a legitimate, nondiscriminatory reason for refusing to deal
with plaintiff - prior litigation between them - and plaintiff
failed to show the stated reason was pretext for racial
discrimination; Minnesota Human Rights Act claim was
time-barred.
022397U.pdf 01/08/03 USA v. Cisneros-Gallegos
U.S. Court of Appeals Case No. 02-2397
District of Nebraska
Criminal case - Sentencing Guidelines. Discretionary decision
to deny a downward departure is unreviewable.
[ January 07, 2003 ]
021615P.pdf 01/07/03 NLRB v. Brede
U.S. Court of Appeals Case No. 02-1615
and No. 02-1616
Agency
Petition for review of a Labor Board decision. NLRB did not err in
finding employer was liable for unilaterally changing employee
referral system as the temporary impasse in bargaining caused by a
jurisdictional dispute did not qualify as an exception to the general
rule against unilateral change in the absence of an overall impasse.
021923U.pdf 01/07/03 United States v. Villalobos-Cuellar
U.S. Court of Appeals Case No. 02-1923
Northern District of Iowa
Criminal case - Sentencing Guidelines. District court did not err in
increasing criminal history category based on a finding that the score
did not adequately reflect the seriousness of defendant's past conduct
or his likelihood of recidivism.
[ January 06, 2003 ]
021683P.pdf 01/06/03 Floret, LLC v. Thomas J. Sendecky
U.S. Court of Appeals Case No. 02-1683
District of Minnesota
Civil case - bankruptcy. District court did not err in dismissing complaint
as it failed to state a valid cause of action; court did not abuse its
discretion in awarding attorneys' fees and costs.
022107U.pdf 01/06/03 Bobby Snow v. Dennis Ahne
U.S. Court of Appeals Case No. 02-2107
Western District of Arkansas
Civil case - civil rights. Defendants' summary judgment affirmed
without comment.
022794U.pdf 01/06/03 United States v. Michael B. Lewis
U.S. Court of Appeals Case No. 02-2794
Western District of Missouri
Criminal case - Sentencing Guidelines. Defendant received the sentence
he bargained for in his plea agreement and may not challenge the length
of the sentence on appeal.
[ January 03, 2003 ]
012171P.pdf 01/03/03 Edward Kaffenberger v. United States
U.S. Court of Appeals Case No. 01-2171
and No. 01-2919
Western District of Arkansas
Civil case - Federal tax. IRS acted within its statutory authority in
entering into a Form 907 Agreement to extend the time to bring suit
on an 1989 refund claim, even though the statutory time period for
bringing suit had lapsed prior to the date of the Form 907 Agreement,
and district court had jurisdiction over the 1989 refund claim; record was
sufficient to establish that taxpayers made a sufficient informal claim for
refund within the statute of limitations period, and district court did not
err in entering judgment for the taxpayers on the jury's special verdict
on the issue; district court lacked authority to abate 1990 tax assessment;
taxpayers' failure to pay the full assessment for their 1990 tax liability
precluded them from bringing suit in district court for a refund of
subsequent credits applied to the 1990 liability; government's position
was substantially justified, and the district court erred in awarding
taxpayers attorneys' fees.
021267P.pdf 01/03/03 Tylene J. Coonts v. John Potts
U.S. Court of Appeals Case No. 02-1267
Western District of Missouri
Civil case - civil rights. Writ of execution was issued in conformity with
Missouri law and authorized defendant officers to enter plaintiffs' property
to conduct a seizure, and deputies were not liable for an unreasonable
seizure; district court did not err in granting summary judgment on
related state law claims; district court did not abuse its discretion
in sanctioning counsel $2,000 under FRCP 11(b)(2) for asserting claims
without legal merit.
021430P.pdf 01/03/03 USA v. Roberto Jauregui
U.S. Court of Appeals Case No. 02-1430
District of Nebraska
Criminal case - Sentencing Guidelines. Waiver of the administrative
deportation proceeding due a resident alien is a sufficient basis for a
downward departure even if the government does not join in the motion;
district court did not abuse its discretion in granting a four-level
departure based on the waiver.
021979P.pdf 01/03/03 Damian Sinclair v. John D. Hawke
U.S. Court of Appeals Case No. 02-1979
Western District of Arkansas
Civil case - banking. Comprehensive statutory scheme establishing the
Office of the Comptroller of Currency's ability to regulate bank operations
and declare an insolvency precludes a Bivens action for damages based on
those actions; defendants were entitled to qualified immunity on Section
1981 and 1982 claims; regulators' actions taken pursuant to their statutory
duties did not constitute a pattern of racketeering activity for
RICO purposes.
022442U.pdf 01/03/03 Hazel Clark v. Anthony J. Principi
U.S. Court of Appeals Case No. 02-2442
Eastern District of Missouri
Civil case - civil rights. Defendant's judgment in employment discrimination
case affirmed without comment.
022551U.pdf 01/03/03 United States v. Everett E. Smith
U.S. Court of Appeals Case No. 02-2551
Western District of Missouri
Criminal case - Sentencing Guidelines. Two-level enhancement for
possession of a firearm in connection with the underlying drug offense was
supported by the record.
022661U.pdf 01/03/03 Genick Bar-Meir v. North American Die
U.S. Court of Appeals Case No. 02-2661
District of Minnesota
Civil case - trademarks. District court erred in awarding damages against
plaintiff in trademark action as he had made a timely demand for a jury trial
and was entitled to have a jury set the amount of damages.
022713U.pdf 01/03/03 John R. Butcher v. Doung Ly
U.S. Court of Appeals Case No. 02-2713
Eastern District of Arkansas
Prisoner case - prisoner civil rights. District court did not err in granting
defendants' motion for summary judgment on prisoner's claims of cruel
and unusual punishment, deliberate indifference to medical needs, medical
malpractice and denial of due process.
022717U.pdf 01/03/03 United States v. Terry R. Stamps
U.S. Court of Appeals Case No. 02-2717
Western District of Missouri
Criminal case - Sentencing Guidelines. District court did not err in
determining that amount of cash seized from defendant's apartment should
be converted into equivalent amount of crack for sentencing purposes.
022744P.pdf 01/03/03 Tywana Edwards v. Jo Anne Barnhart
U.S. Court of Appeals Case No. 02-2744
Eastern District of Arkansas
Civil case - Social Security. ALJ's determinations that claimant's
allegations of disabling pain were not credible and that her physician's
opinion did not deserve controlling weight were supported by substantial
evidence.
022850U.pdf 01/03/03 United States v. Anthony Murry
U.S. Court of Appeals Case No. 02-2850
District of Nebraska
Criminal case - Sentencing Guidelines. Chapter 7 range is nonbinding
in a proceeding to revoke supervised release, and the district court did not
abuse its discretion in setting sentence.
[ January 02, 2003 ]
022634U.pdf 01/02/03 United States v. A. Ortiz-Sanchez
U.S. Court of Appeals Case No. 02-2634
District of Nebraska
Criminal case - Sentencing Guidelines. District court did
not err in denying safety-valve relief based on finding
defendant had not been fully truthful about the source of the drugs.