Longmire v. WARSHAW BURSTEIN COHEN SCHLESINGER & KUH, LLP

Eric Longmire Petitions United State Supreme Court in Case With Warshaw Berstein

Whether the State Appellate Division wrongfully denied Petitioner’s Motion for Leave to Appeal when sua sponte and without notice to Petitioner, and without providing him an opportunity to respond, it determined that Petitioner failed to establish a prima facie case of employment discrimination against his former employer. Longmire Petitions the US Supreme Court in a case with Warshaw Berstein, and the Petition is attached here: PETITION FOR A WRIT OF CERTIORARI United States Supreme Court

New York Court of Appeals Opinion

The second question for review in the petition is:

Whether the State Appellate Division erred in affirming sua sponte and without notice to Petitioner, and without providing him an opportunity to respond, the decision and order of the motion court in dismissing Petitioner’s counterclaim for legal malpractice against the Respondent.

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Kyle Hurst v. United States Forest Service – Petition for Writ of Certiorari

Kyle Hurst Challenges Rainbow Family Immunity Ruling

The question presented in the petition is:

Whether the Eleventh Circuit wrongfully absolved Respondent of liability when it determined that Moore Lake was not an “area” where a fee was charged, or a part of an area used for commercial purposes.  Read the Petition here: Hurst Petition

The Rainbow Family has long history of violating the laws

Equally important, the Permit for the Rainbow Group covered “3 square miles”. 4 Since the distance to Moore Lake and Silver Lake is less than 1 nautical mile, the holding in Goodman means that the properties are the same “area” and the Permit covered activity at both Silver Lake and Moore Lake. The Eleventh Circuit failed to correctly apply Goodman for the following reasons:

1. A “fee” is charged for access to Silver Lake;
2. Moore Lake and Silver Lake are less than 1 mile apart;
3. Both Moore Lake and Silver Lake are covered by the plain language of the Permit, stating that activity of Rainbow Family is permitted up to “3 square miles” from Moore Lake.

The holding in Goodman means that USFS cannot avoid liability and the Eleventh Circuit opinion incorrectly interpreted federal law. The Court of Appeal’s decision strays from the factual issues in the case. The facts are clear that Moore Lake is a part of Silver Lake. Moore Lake is the camping compliment to Silver Lake.

 

Contact Robert Sirianni and Brownstone Law to discuss your Supreme Court Appeal.

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Brownstone Law Files Petition to United States Supreme Court

Jackson v. United States Petition for Writ of Certiorari

The Sixth Circuit’s decision in Ruelas v. Wolfenbarger, 580 F.3d 403 (6th Cir. 2009) acknowledged that this court’s seminal decision in Fry v. Pliler, 551 U.S. 112 (2007) did not overule Mitchell v. Esparza, 540 U.S. 12 (2003) (per curiam). In Ruelas, the Sixth Circuit held that a federal habeas court is free to apply the Esparza harmless error standard to determine whether a state court of appeals reasonably applied the Chapman harmless error standard on direct review. In the decision below, infra, App. 3a, the court of Appeals applied this standard. However, the Kentucky Supreme Court did not apply the Chapman harmless error standard on direct review.

Brownstone Law Petitions U.S. Supreme Court

Read more about the Petition here:  Petition for Writ of Certiorari.

This case presents the following questions:

 

1. Whether the Sixth Circuit erred in applying the Esparza harmless error standard, instead of the Brecht harmless error standard on federal habeas review, when the state court failed to apply Chapman on direct review.

 

2. Whether a trial court’s erroneous denial of a request for a self-protection instruction as to the lesser included offenses of second-degree manslaughter and reckless homicide may be deemed harmless.

Contact Robert Sirianni to discuss more about your appeal.

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First Amendment Substantial Truth Defense

Supreme Court Writ on First Amendment

The August 14, 2019 Order of the United States Court of Appeals for the Eleventh Circuit denying Schiano’s Petition for enc banc review, which decision is herein sought to be reviewed was not published.  The June 7, 2019, Opinion of the Panel of the United States Court of Appeals for the Eleventh Circuit was unpublished, but can be found at Schiano v. Friedman, 2019 U.S. App. LEXIS 17105 (11th Cir. 2019).  The September 26, 2017, Opinion of the United States District Court for the Southern District of Florida was unpublished, but can be found at Friedman v. Schiano, No. 16-cv-81975-BB, 2017 U.S. Dist. LEXIS 159584 (S.D. Fla. January 6, 2017).              The statutory provision believed to confer on this Court jurisdiction to review on a writ of certiorari the judgment or order in question is 28 U.S.C. §1257.  Read the writ here: Cert Petition- First Amendment

Whether substantial truth is a complete defense to defamation under the First Amendment, regardless of the motives of the speaker?

Schiano owned Hotwiremedia.com, a “party vendor directory” that sold listing space and banner advertisements on its website to service companies that catered to the party planning industry.  A few months after Schiano trained Freidman to maintain Hotwiremedia.com’s database and to sell vendor listings, Freidman represented to clients of HotWireMedia.com that Hotwiremedia.com was purchased by Friedman and Freidman’s Planningforevents.com company. Thereafter, Appellee Freidman charged Hotwiremedia.com clients’ credit cards for Freidman’s commissions and for banner ad upgrades. Schiano reported Friedman’s actions to the local Police Department and then started a webpage on the Hotwiremedia.com website documenting Appellee Freidman’s fraud. Thereafter, Appellee Freidman accused Appellant Schiano online of being, among other things, a child molester and rapist. Schiano’s business did not survive Freidman’s accusations, and he was forced to leave his home, opting to rent the property due to the loss of business. Schiano was forced to move from his home at 3840 Northwest 17th Avenue, Oakland Park, Florida 33334 to 400 NW 53rd Court, Oakland Park, Florida, 33309. As of December 12, 2016, Schiano’s usual place of abode was the property at 400 NW 53rd Street.

Schiano added that the District Court erroneously failed to recognize Schiano’s truth defense as a complete defense to allegations of defamation and failed to properly consider the economic burden imposed on Schiano by the $1,310,535.08 judgment and injunctions that permanently shut down Schiano’s business websites.

Contact Brownstone Law and Robert Sirianni to discuss a Supreme Court Writ (888) 233-8895.

 

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Test Post

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Appeals Court Overturns Conviction of Emily Usnick

Emily Usnick Conviction

An appeal court overturned a conviction of a woman accused of involuntary manslaughter of her baby. Emily Usnick, a forty-three years old woman from central Missouri, gave birth alone at home alone and did not seek medical attention before her baby who she named Hannah died.

Central Missouri Woman Emily Usnick Convicted of Involuntary Manslaughter

The Circuit Court of Johnson County convicted Emily Usnick of first-degree involuntary manslaughter following a jury trial. Usnick who had been originally charged with second-degree murder but was later convicted with first-degree involuntary manslaughter, second-degree child endangerment, and possession of a controlled substance in the death of her baby in July 2017. The prosecutors contended that she was guilty because of giving birth unattended, did not seek medical care attention after giving birth and putting the body in a plastic bag. At the trial, prosecutors presented evidence that Usnick had sent text messages the evening of the birth and that there was an ambulance substation located three-quarters mile away. As charged, the state court argued that Usnick had recklessly caused the death of her baby by failing to seek medical assistance following the childbirth and enclosing the dead body of the child in a plastic bag and container.

In 2009, the body of the baby was found in a plastic bag inside the car track during a drug raid at the home of Usnick in St. Elizabeth by investigating officers. The decomposing body was found two weeks after it had been dumped in the car. Investigators found large amounts of methamphetamine in Usnick’s house which she admitted that she ha been smoking marijuana and methamphetamine the night before giving birth. Usnick was not charged in connection to the death of the baby until February 2012. An autopsy done on the body of the baby revealed that the infant girl a lethal dose of methamphetamine in her liver and blood. The autopsy was not specific whether the death of the baby was caused by methamphetamine or she drowned. Hannah died due to lack of oxygen. During the final ruling, the court sentenced Usnick to five years in the department of corrections.in a separate trial, the court sentenced her five years for possession of controlled drugs to be served concurrently with her manslaughter charge.

Judge Witt Overturns Usnick Conviction

The Missouri western district court of appeals on Tuesday overturned the conviction of Emily Usnick following a unanimous report written by judge Gary Witt. According to the report, Witt stated that the state did not give sufficient evidence to prove that Usnick acted with criminal intent or recklessly when her baby died and should not have been convicted of involuntary manslaughter. According to Witt, experts were not able to determine the clear cause of the death of the baby within a reasonable degree of medical certainty. With this, it is impossible for a lay juror to make the right determination that the cause of death was because of a criminal act as opposed to natural causes. The fate of the case depended on the rare question of whether giving birth without seeking medical care might be a basis of a crime. About this, Usnick contends that the state has no duty imposed on expectant mothers to ensure they have a medically attended birth or otherwise face criminal prosecution and the state does not contest. On a statement given to detectives, Usnick said that she planned to give the baby for adoption. She said that she was so beautiful and it was unfortunate that things had turned to the worst. Usnick believes that it is possible that baby Hannah drowned or suffocated while submerged in the water.

In the case facts statement, Witt wrote that Usnick was alone when her water broke and she delivered the baby girl into a toilet. Usnick told the investigators that after she delivered, it took her several minutes before she recovered from the shock and picked the baby. In her statement to investigators, Usnick said that she was terrified because the baby was not breathing or moving. Eventually, she took the body of the baby and put it in a plastic bag and put it inside the car trunk. The autopsy concluded that the baby was alive when it was born, but the prosecutors did not argue on the basis that Usnick had drowned the baby.

In the appeal conviction, Judge Witt stated that Usnick did not seek medical attention because her car was broken down. She also did not have cellphone minutes to call for help, and even if she had minutes, her house had inconsistent cell service. In an email on Tuesday to the newspaper, Phillip Zeeck, one of the attorneys of Usnick, stated their defense argument in the court briefs. The brief states that Emily did not recklessly have an unattended birth. It was not her will to go into Labour when no one else was at home. This does not criminalize the act of having unattended birth. Appeal on Tuesday stated that the state of Missouri could not convict a person on an offense based solely on an omission to perform an act unless there is a law defining the offense expressly or a duty to perform the omitted act is imposed by the law. With this, the fact that Usnick had a medically unattended delivery cannot qualify as criminal prosecution in terms of the law. The state court of appeal also failed to prove that the death of the baby was a result of unnatural causes.

The appeal court concluded that they had reversed Emily Usnick’s appeal criminal case conviction of first-degree involuntary manslaughter. Emily Usnick had been handed a sentence of five years in prison for conviction of involuntary manslaughter and a concurrent five-year sentence for drug possession conviction. She did not appeal drug conviction and is still in the Missouri Department of Corrections facility prison in Chillicothe. The appeal was handled by the state attorney general office. The office declined to give a response to the request of commenting about the overturned conviction. The county prosecutor’s office Miller County said that it was reviewing the decision of the court.

Contact Brownstone Law to discuss your federal appeals in Missouri.

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Nouman Raja Conviction Appeal

Palm Beach Cop Nouman Raja Convicted

Attorneys of Nouman Raja who is a former Florida law enforcement officer filed an appeal and are requesting for another new trial. Nouman Raja is was Palm Beach Garden officer and is now convicted after shooting a man who happened to be a driver who was stranded. He is now appealing the court to give him another trial. Appeal attorney representing Nouman Raja has filed all the necessary paperwork in demand for another new trial. The reason for this is that the initial trial was not fair and impartial. The Palm Beach County jury had found this man guilty of attempted first-degree murder and manslaughter for the 2015 shooting of the deceased Corey Jones which was on a 1-95 exit ramp.

Jury Finds Nouman Raja Guilty of Corey Jones

He was working in plain clothes that day, He drove his van which was unmarked the wrong way up to an off-ramp, he then stopped a few feets away from the late Jone’s break-down SUV at around 3.15 am. This was on October 18th. What the prosecutor said is that Raja did not identify himself and that he acted in an aggressive manner thinking that Jones was a carjacker. Jones was a licensed firearm holder and the aggression he faced from Raja forced him to pull out his gun as he tried escaping. Raja continuously fired at him and caught him with a bullet that went straight through his heart.His lawyers, however, are appealing for his conviction stating that he is even eligible for a bond.

Raja Seeks to Appeals Conviction

They say he should have a house arrest while they continue appealing his case which is a serious conviction of manslaughter and first-degree murder. In a request that was filed with the Palm Beach County, Raja’s legal team led by Circuit Judge Joseph Marx said that he never violated the conditions for his pre-trial $250,000 for around three year’s time. They said that in his time on (house arrest) he complied with every guideline and went through all the stringent requirements of this procedure without any hitches. Attorney Steve Malone who represents Raj stated this firmly that the convict followed every detail required of him.

 

The prosecutors will have another chance of filing a response right before Marcx convenes a hearing. The family of the slain Jones will get a chance of sharing their thoughts on this matter. On Raja,s request, the appellate attorney’s note that he meets the required conditions under Florida law which can make a release under bond arguably possible. Among the reasons that they put forward to support their point is that Raja has no criminal records, he also has longstanding ties with the community. This shows he is a good man who would not have the intention of killing carelessly. His conviction was overshadowed by the fact that Marx made the mistake of not giving Raja’s defense attorney the chance to convince the jury that the shooting was a justifiable use of deadly force carried out by a law enforcer. The appeal lawyers further state that Raja is not a risk to the society or a flight risk, and he has a job lined up for him if he is released and he would continue living with his wife who he married 16 years ago as well as their two children and one of them has special needs. Now what they await is the judge’s discretion on whether he will grant the appellate bond. There is normally a particular chance for police officers who are convicted of serious crimes as well as convicts who are facing serious prosecutions. The appeal lawyers of Raja are seeking a bond of a reasonable amount. A defense attorney of South Florida known as Mark Eiglarsh said that the case facing Raja is a serious one and therefore one should not take the bond off the table after sentencing. A house arrest is what his lawyers are particularly seeking at first for Raja would rather serve time with his family. He can have a job here at Boynton Beach company that deals with selling tactical military gear. However, the nature of this case is too serious and charges like these don’t just get dropped. The family of Jones is going through a lot and especially his children. It is so sensitive and it’s upon the judge to decide whether to give him an appeal. The appeal lawyers of Raja have to give it their all id they expect a positive outcome.

Contact Brownstone Law to discuss any appeal in Florida.

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Lorenzo v. Securities and Exchange Commission: Federal Appeal

Securities and Exchange Commission Rule 10b–5 makes it unlawful to(a) “employ any device, scheme, or artifice to defraud,” (b) “make any untrue statement of a material fact,” or (c) “engage in any act, prac- tice, or course of business” that “operates . . . as a fraud or deceit” in connection with the purchase or sale of securities. Read more about white collar crime under 10(b)(5). In Janus Capital Group, Inc. v. First Derivative Traders, 564 U. S. 135, this Court held that to be a “maker” of a statement under subsection (b) of that Rule, one must have “ultimate authority over the statement, including its content and whether and how to communicate it.” Id., at 142. On the facts of Janus, this meant that an investment adviser who had merely “participat[ed] in the drafting of a false statement” “made” by another could not be held liable in a private ac- tion under subsection (b). Id., at 145. Read more about this Federal Appeal:

Lorenzo v. SECDownload

Petitioner Francis Lorenzo, while the director of investment banking at an SEC-registered brokerage firm, sent two e-mails to prospective investors. The content of those e-mails, which Lorenzo’s boss supplied, described a potential investment in a company with “con- firmed assets” of $10 million. In fact, Lorenzo knew that the company had recently disclosed that its total assets were worth less than $400,000.

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Tips for Writing a Strong Appellate Brief for the First Time

Writing a perfect and convincing appellate brief is art perfected by experienced appellate lawyers over time. For inexperienced lawyers, writing a strong appellate brief for the first time can be a daunting challenge. Essentially, an appellate brief is a formal document presented to an appeals court by lawyers which covers all legal arguments supporting their case. The sole purpose of authoring this document is to convince the judges to decide the case in favor of your client.

Adopt a focused approach

Coherency, focus, and clarity – these three elements can make your appellate brief strong enough to impress and possibly convince a judge. While conducting legal research regarding their case, many senior appellate tend to lose focus and end up wasting time upon legal aspects and instruments which do not have a direct connection with their case.

Always stay focused on your objectives while working on your draft – it is natural to get intrigued by questions of law and drive into an entirely different dimension. Keep your research as focused as possible to produce a top-notch appellate brief.

Highlight & Present Major Issues Convincingly

For appellate writing an appellate brief for the first time, it is imperative to identify and highlight the most pertinent issues of law. Finding precedents and statutes which substantiate your case should be your primary objective. In courts, only proof and evidence matter so make sure your appellate brief substantially outlines the errors made in trial court with evidence. Focus on your strongest arguments and build upon them rather than filling your brief with minor issues which would adversely reduce the significance of your most compelling arguments.

Avoid Making Generalizations

By making any tall claims or false information or anything which cannot be backed up with a credible source of information, you will make your appellate brief less effective. It is imperative to fact check every argument and statement you make in your appellate brief. Many appellate lawyers, who are proficient at drafting appellate briefs tend to spend a considerable amount of their time proofreading and fact-checking all their arguments.

Just one generalization or misinformation can render all your other powerful arguments useless. Always strive for perfection to garner positive results. Base your brief on law and legal arguments rather than generalizations and emotional pleas.

Strictly Follow the Rules

Another important aspect to consider while drafting your first appellate brief is taking into account the rules and format outlined by the respective courts. Surprisingly, a number of appellate lawyers fail in staying within the rules while drafting their respective briefs. There has been precedent where a court rejected an appellate brief because it attempted to evade the court’s page limit by adding extraordinarily verbose and lengthy footnotes. Therefore, it is imperative to write your brief, keeping in mind the requirements and limitations set by the respective courts for writing a valid and acceptable appellate brief.

Presentation

Lastly, and most importantly, the presentation is the most important aspect of writing an appellate brief, especially if you are doing it for the first time. While you may have added great legal arguments in your brief, if you do not present it in a chronological and coherent manner, the judges will not be able to make any sense of it. According to senior lawyers, it is recommended to formulate a chronological table of contents to provide ease to the judge and for your arguments to be received, read and considered in the sequence you originally planned.

In summation, you can certainly right a great appellate brief at your first attempt if you stay focused, conduct a thorough research and present your arguments properly. Although, only the most talented and experienced appellate lawyers have the skill to draft a perfect appellate brief which can convince the court in favor of their respective clients.

At Brownstone Law we have a team of skilled criminal lawyers that can handle your case with perfection. Give us a call now to get consultancy from experts

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tester

It is a long established fact that a reader will be distracted by the readable content of a page when looking at its layout. The point of using Lorem Ipsum is that it has a more-or-less normal distribution of letters, as opposed to using ‘Content here, content here’, making it look like readable English. Many desktop publishing packages and web page editors now use Lorem Ipsum as their default model text, and a search for ‘lorem ipsum’ will uncover many web sites still in their infancy.

It is a long established fact that a reader will be distracted by the readable content of a page when looking at its layout. The point of using Lorem Ipsum is that it has a more-or-less normal distribution of letters, as opposed to using ‘Content here, content here’, making it look like readable English. Many desktop publishing packages and web page editors now use Lorem Ipsum as their default model text, and a search for ‘lorem ipsum’ will uncover many web sites still in their infancy.

It is a long established fact that a reader will be distracted by the readable content of a page when looking at its layout. The point of using Lorem Ipsum is that it has a more-or-less normal distribution of letters, as opposed to using ‘Content here, content here’, making it look like readable English. Many desktop publishing packages and web page editors now use Lorem Ipsum as their default model text, and a search for ‘lorem ipsum’ will uncover many web sites still in their infancy.

It is a long established fact that a reader will be distracted by the readable content of a page when looking at its layout. The point of using Lorem Ipsum is that it has a more-or-less normal distribution of letters, as opposed to using ‘Content here, content here’, making it look like readable English. Many desktop publishing packages and web page editors now use Lorem Ipsum as their default model text, and a search for ‘lorem ipsum’ will uncover many web sites still in their infancy.

 

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Lorenzo v. Securities and Exchange Commission: Federal Appeal

Securities and Exchange Commission Rule 10b–5 makes it unlawful to

(a) “employ any device, scheme, or artifice to defraud,” (b) “make any untrue statement of a material fact,” or (c) “engage in any act, prac- tice, or course of business” that “operates . . . as a fraud or deceit” in connection with the purchase or sale of securities. Read more about white collar crime under 10(b)(5). In Janus Capital Group, Inc. v. First Derivative Traders, 564 U. S. 135, this Court held that to be a “maker” of a statement under subsection (b) of that Rule, one must have “ultimate authority over the statement, including its content and whether and how to communicate it.” Id., at 142. On the facts of Janus, this meant that an investment adviser who had merely “participat[ed] in the drafting of a false statement” “made” by another could not be held liable in a private ac- tion under subsection (b). Id., at 145. Read more about this Federal Appeal:

Lorenzo v. SECDownload

Petitioner Francis Lorenzo, while the director of investment banking at an SEC-registered brokerage firm, sent two e-mails to prospective investors. The content of those e-mails, which Lorenzo’s boss supplied, described a potential investment in a company with “con- firmed assets” of $10 million. In fact, Lorenzo knew that the company had recently disclosed that its total assets were worth less than $400,000.

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Florida Supreme Court Appeals: Larry Wetzel v. Travelers Companies, Inc.

This case is before the Court on the petition of Larry R. Wetzel for a writ of mandamus. We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.  By order dated January 24, 2019, we denied Wetzel’s petition pursuant to Huffman v. State, 813 So. 2d 10, 11 (Fla. 2000). See Wetzel v. Travelers Companies, Inc., No. Read more about the opinion here:

Larry Wetzel v. Travelers CompaniesDownload

SC18-2109, 2019 WL 757936 (Fla. Jan. 24, 2019). Concurrent with the denial of the petition, we expressly retained jurisdiction to pursue possible sanctions against Wetzel. Id.; see Fla. R. App. P. 9.410(a) (Sanctions; Court’s Motion).

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