Las familias actuales, entre el conflicto y la crisis

QUESTION: Whether “donning and doffing poultry processing

workers’ personal protective equipment is ‘changing clothes,’” under 29 U.S.C. § 203(o) of the Fair Labor Standards Act (FLSA). Id. at 1133 (internal quotations omitted).

ANALYSIS: The court first noted that the meaning of the phrase

“changing clothes” is ambiguous, explaining, “[a]s evidenced by the differing interpretations of several courts and the United States Department of Labor Wage and Hour Division . . . , the word ‘clothing’ is susceptible of multiple meanings, particularly in the industrial labor context where specialized apparel and equipment is often worn.” Id. at 1137. The court held that the “donning and doffing” provision of the FLSA was not an “exemption” within the Act and thus was not required to be read narrowly or construed in favor of the plaintiff by operation of law. Id. at 1138. The court reasoned that Congress employed language to be used in its ordinary meaning. Id. at 1139. The court went on to hold that “[a]n expansive construction is consistent with the ordinary meaning of the word ‘clothes,’ and makes more sense than a construction that would differentiate between apparel and equipment designed for safety purposes and other apparel and equipment, or between non-unique and unique apparel and equipment.” Id. at 1138–39.

CONCLUSION:The 10th Circuit held that “donning and doffing the

[personal protective equipment] at issue” is considered changing clothes. Id. at 1136.

United States v. Acosta-Gallardo, 656 F.3d 1109 (10th Cir. 2011) QUESTION: Whether venue is proper for a charge of using the

telephone to facilitate a drug conspiracy, where alleged telephone calls were neither placed nor received in the venue district.. Id. at 1119.

ANALYSIS: The court first stated that 21 U.S.C. § 843(b) does not contain a specific venue provision. Id. The court then analogized this offense to venue questions of firearm offenses that were ancillary to kidnapping charges that cross state lines, even if the firearm offense was not “committed” in the venue state. Id. at 1120. Based on this precedent, the court reasoned that the defendant must be complicit in an underlying drug felony, and found that venue for a “violation committed in furtherance of a conspiracy would be proper in any district where the communication facility was used or the underlying conspiracy was committed.” Id. at 1122.

CONCLUSION:The 10th Circuit held that venue may be proper for

received in a different venue and “touched” the present venue facilitated that conspiracy. Id. at 1119.

United States v. Langford, 641 F.3d 1195 (10th Cir. 2011)

QUESTION: “[W]hether there is federal jurisdiction for a victimless

crime, perpetrated by a non-Indian in Indian country.” Id. at 1197.

ANALYSIS: The court stated that, pursuant to a long line of

Supreme Court cases, “federal jurisdiction over crimes in Indian country is contingent upon the existence of either an Indian victim or perpetrator.” Id. Despite the plain language of several criminal statutes that granted federal jurisdiction, the Supreme Court “created an exception premised upon the sovereign equality of the individual states.” Id. at 1198. The court noted that the Supreme Court has suggested in dicta that the same principle applies to victimless crimes by non-Indians in Indian country. Id. at 1199.

CONCLUSION: The 10th Circuit held that there is no federal jurisdiction and that “states possess exclusive criminal jurisdiction over crimes occurring in Indian country if there is neither an Indian victim, nor an Indian perpetrator.” Id. at 1197.

ELEVENTH CIRCUIT

John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210 (2d Cir. 2011) QUESTION: Whether the first sale doctrine, codified at 17 U.S.C.

§ 109(a) of the Copyright Act, applies to works manufactured outside of the United States. Id. at 214.

ANALYSIS: The court first noted that the district courts within the 11th Circuit have determined that § 109(a) does not apply to foreign- manufactured goods imported into the United States. Id. at 212 (internal citations omitted). The 9th Circuit previously held that “§109(a) does not apply to items manufactured outside the United States unless they were previously imported and sold in the United States with the copyright holder’s permission.” Id. (internal citation omitted). The court also noted that the Supreme Court held that 17 U.S.C. § 109(a), in conjunction with 17 U.S.C. § 106(a) limits the scope of 17 U.S.C. § 602(a). Id. at 217 (internal citation omitted). The court then determined that the text of § 109(a) was too ambiguous to rely on a textual analysis. Id. at 220. Interpreting § 109(a) to apply to works manufactured outside of the United States, however, would render § 602 useless in most cases. Id. at 221. On the other hand, interpreting § 109 to not apply to works manufactured outside of the United States would

allow copyright holders to control the circumstances in which copies manufactured abroad could be legally imported into the United States. Id. CONCLUSION: The 11th Circuit held that the first sale doctrine,

codified by § 109(a), did not apply when all of the books in question were manufactured outside of the United States. Id. at 222.

United States v. Hung Thien Ly,646 F.3d 1307 (11th Cir. 2011) QUESTION: Whether a district court is required to correct a pro se

defendant who chooses not to testify because the defendant is not aware that he is able to testify in narrative form. Id. at 1313.

ANALYSIS: The court first stated that a “pro se criminal defendant

may to testify in narrative form,” id. at 1312, and that the right to choose is personal, as well as fundamental, and the defendant must make this decision himself.” Id. at 1315–16. Additionally, the court noted that, “[l]ike other fundamental trial rights, the right to testify is truly protected only when the defendant makes his decision knowingly and intelligently.” Id. A pro se defendant, the court stated, foregoes the benefit of an attorney who could advise him and provide necessary information to make a knowing and intelligent decision about whether or not to testify. Id. at 1314. Thus, the court reasoned that a pro se defendant also foregoes a remedy under the ineffective assistance of counsel paradigm. Id. Therefore, the court decided that “a district court can—and sometimes must—aid an ignorant pro se defendant.” Id. at 1316. The court stated that this does not mean that “district courts must engage in a colloquy with every pro se defendant regarding his decision whether to testify,” but, a district court may not begin the colloquy and subsequently reinforce the defendant’s misunderstanding of the choice to testify. Id.

CONCLUSION: The 11th Circuit held that absent evidence to the

contrary, district courts should presume that the defendant, even a pro se defendant, has made a knowing and intelligent decision about whether to testify. Id. at 1317. However, where a district court has knowledge that a defendant has not exercised his right to decide whether to testify knowingly and intelligently because of a misunderstanding, the district court is required to correct defendant’s misunderstanding. Id. at 1316.

United States v. Willis, 649 F.3d 1248 (11th Cir. 2011)

QUESTION: “Whether harmless error applies to a violation of 18

U.S.C. § 3552(d)[:]” granting a defendant ten days to review a pre- sentence investigation report (PSR). Id. at 1257.

ANALYSIS: The court first noted that “[the] purpose of the ten-day

the defendant adequate time to review and verify the information contained in the PSR prior to sentencing.” Id. at 1256–57 (internal quotation marks omitted). The court then noted that “at least two other courts of appeals have applied harmless error to untimely disclosure of a PSR,” in holding that a probation officer’s delinquency in filing an amended presentence report did not significantly affect the defendant’s right to a fair sentencing hearing. Id. at 1257. The court further reasoned that “federal statutes and criminal-procedure rules lay a background assumption of harmless-error analysis.” Id.

CONCLUSION:The 11th Circuit held that Ҥ 3552(d) is susceptible

to harmless-error analysis.” Id.

United Steel, Paper and Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union AFL-CIO-CLC Local 320 v. Wise Alloys, LLC, 642 F.3d 1344 (11th Cir. 2011)

QUESTION: Whether “a party adversely affected by an arbitration award in § 301 [of the Labor Management Relations Act (LMRA)] arbitration cases must challenge the award by judicial action within the statute of limitations or else be barred from raising any defenses to the award.” Id. at 1352.

ANALYSIS: The 7th Circuit previously reasoned that “statutes of

limitations apply to defenses as well as suits because arbitration awards are themselves the creations of statutes, not common law.” Id. The 11th Circuit agreed with the 7th Circuit and reasoned that where a right of action which did not exist by the common law is provided by statute, the statute fixes the time period in which the right may be enforced and “the time so fixed becomes a limitation” on that right. Id.

CONCLUSION: The 11th Circuit held that a party in a § 301 arbitration case who is adversely affected “must challenge the award by judicial action within the statute of limitations or else be barred from raising any defense to the award.” Id.

FEDERAL CIRCUIT

In re BP Lubricants USA Inc., 637 F.3d 1307 (Fed. Cir. 2011)

QUESTION: Whether the particularity requirement of Fed. R. Civ.

P. 9(b) applies to false marking claims under 35 U.S.C. § 292. Id. at 1310.

ANALYSIS: The court noted that Rule 9(b) requires a plaintiff to plead “with particularity the circumstances constituting fraud or mistake.” Id. The court added that Rule 9(b) serves as a safety valve by

assuring that only viable claims of fraud and mistake proceed to discovery and preventing the use of discovery as a fishing expedition. Id. The court pointed to an analogous statute, the False Claims Act (FCA), in which the plaintiff must also meet the requirements of Rule 9(b), because the FCA “condemns fraud, ‘but not negligent errors or omissions.’” Id. The court noted that, “like the [FCA], § 292 condemns fraudulent or false marking,” and “Rule 9(b)’s gatekeeping function is also necessary to assure that only viable claims reach discovery or arbitration.” Id. at 1311.

CONCLUSION: The 11th Circuit held that Rule 9(b)’s particularity

requirement applies to false marking claims under § 292. Id. at 1311.