SEARCH & SEIZURE    (shared/ or residence location) 

SEARCH & SEIZURE     (away from home)

SEARCH & SEIZURE     (computer records)

SEARCH & SEIZURE     (cell phone & computer records)


SEARCH & SEIZURE     (Warrant Procedure)

SEARCH & SEIZURE     (Curtilage)




RESTITUTION & T A X - F E D E R A L (section will be finished by mid June 2014)














Article 9's Bankrupt Proceeds Rule: by G. Ray Warner.  UCC definition changes bankruptcy? "proceeds" under 1978 ucc 9 rules. 552(b)(1) exception added in 1994, pulled rents out of postpetition assets & added hotel use and occupancy fees (enlarging post
petition property that may be subject to prepetition liens). A security interest may extends to property that constitutes proceeds of prepetition property. Proceeds = conversion and not generation or arisen. State NB rules limit the lien and BK rules cannot expand it, (NB filter).  
In 2000, revised article 9 makes it easier to securitize a greater number of types of assets 9-102; "account"= right to monetary obligation. Old "general intangibles and instruments" are now "accounts." "Collateral transfer" or "true sale"

In re Laube 152 B.R. 260 (1993) Wisconsin Trucker's Sleeper Rig is a homestead

Clark v. Rameker, 573 U.S. ___ (2014) Inherited IRA’s not exempt.







Apprendi Related














Northern District Research Binder (PDF)(WPD)  (Thank you Judge Novack)



Consumer or Business Debt



Time Between Filings

Service & Notice

Criminal Fines Discharge

Bankruptcy Fees (Attorney)

Improper Taking Control of Bankrupt

Choice of Law


Bankruptcy Fraud Related

  • Brown v. Chesnut (In re Chesnut), 422 F.3d 298 (5th Cir. 2005) In CA, title generally trumps marital property presumption (absent fraud allegation, order for tracing) . Texas has a generally opposite outcome.  Here, the bankruptcy court, without deciding whether the Eastland property was community property,  found that Brown's belief that the property was not part of the estate was not sufficient to obviate compliance with the relief-of-stay procedures of 11 U.S.C. § 362(d). The court assessed Brown a fine and attorney's fees. The district court reversed the bankruptcy court, and held that the Eastland property was Mrs. Chesnut's separate property and that, regardless of when that determination was made, there was no violation of the automatic stay because Mr. Chesnut had no interest in the Eastland property. Mr. Chesnut appeals, with the result: REVERSED, & the bankruptcy courts determination of violation of the stay is upheld.  § 362(a)(3) says nothing about the automatic stay's effect on any act to obtain possession of what is later determined to be property of the estate. The Eastland property was not clearly part of Mr. Chesnut's bankruptcy estate at the time of the foreclosure, but neither was it clearly not part of his estate. Whether an asset is property of the estate is a legal determination which frequently entails complex analyses involving a number of legal elements and a variety of facts. Here, the status of the Eastland property hinged on the application of Texas's legal presumptions regarding separate and community property as well as an examination of the factual bases underlying the transaction, including the text of the title documents, the source of purchasing funds, and even the possible existence of fraud. TEX. FAM.CODE ANN. § 3.003; Bahr v. Kohr, 980 S.W.2d 723, 726 (Tex.App.Ct.1998) (citing Massey v. Massey, 807 S.W.2d 391, 405 (Tex.App.Ct.1991)). These questions concerning the characterization of the Eastland property as separate or community property can only be answered with finality through the judicial process, which was not initiated here until after the foreclosure of the Eastland property. Regardless of whether the Eastland property is ultimately held to have been Mrs. Chesnut's separate property or the Chesnuts' community property, at the time that Brown foreclosed on the Eastland property, it was uncertain whether it was property of Mr. Chesnut's estate and, therefore, was arguable property. A conclusion that bankruptcy law demands some process prior to the seizure of arguable property is buttressed and informed by the Supreme Court's analysis in analogous contexts. In Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), the Court ruled that a post-seizure determination vindicating a creditor's property rights was not sufficient to ameliorate the insufficient process attendant to a pre-vindication seizure of the property.  The district court erred in absolving Brown's willful violation of the automatic stay with a post-seizure determination of the property's characterization.

  • Bobby Joe Wallace and Bridget Janine Wallace v. Abel Rosales; Robert Pike; Gary Aardema; Aardema & London, (In re Wallace) (BAP 9th Cir. 04/09/2013) Order for sanctions is not a "money judgement" and justifies further sanctions for noncompliance.

  • Tracht Gut, LLC v. County of Los Angeles (In re Tracht Gut, LLC), 12-20308 (MT); CC-13-1229-PaTaD (B.A.P. 9th Cir. Jan. 3, 2014).  Looks as if someone is doing a late, fire, bargain basement sale of property in which back taxes are owing, and in which the scheme is to buy the property only after it has been reduced after sale, with the sellers discounting deeply due to the slim ability of the buyer to un-do the sale.

  • Utnehmer v. Crull (In re Utnehmer) , No. NC-12-1362-PaDJu, 2013 Bankr. LEXIS 4482 (9th Cir. BAP Oct. 10, 2013).] Good discussion of what constitutes a partnership in California, with a finding of partnership existence as a prerequisite to a finding of defalcation under the culpable state of mind requirement imposed by the Supreme Court in Bullock v. BankChampaign, N.A., 133 S. Ct. 1754 (2013).  Reversing based upon lack of partnership saved remand to determine culpable state of mind, as the trail level determination was made before the Bullock case.

  •  In re H Granados Communications, Inc., 2013 Westlaw 6838709 (9th Cir. BAP 2013). Blatant chapter 11 stay violation by Ahart.

  • In re Rupanjali Snowden (9th Cir. 2014) Stay violation does not end when violator offers reimbursement, but when bankruptcy court issues a finding that the stay is violated. Concurring opinion stated that § 362(k)(1) provides damages for fees spent in (1) remedying automatic stand and (2) recovering actual damages.  Cites (In re Schwartz-Tallard) , No. 12-60052, 2014 W L 4251571 (9th Cir. Aug . 29, 2014 )

Student Loan Cases



Revenue & Tax Code § 6829


T A X   D E B T   R E L A T E D








2nd  AMENDMENT    





  • Alleyne v. United States (No. 11-9335),  (overruling Harris v. United States,) Any facts which increase a defendant's mandatory minimum sentence must be proved  beyond a reasonable doubt.

  • Salinas v. Texas (No. 12-246),  OK for prosecution to comment on the defendant's pre-arrest silence as evidence of his guilt.

  • United States v. Davila (No. 12-167), When a judge participates in plea negotiations, contrary to Federal Rule of Criminal Procedure 11(c), the defendant's guilty plea need not be vacated if there is no evidence of prejudice.
  • Peugh v. United States (No. 12-62),  ex post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range even when the Guidelines are , because it creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”  

  • Maryland v. King (12-207), Re: Maryland DNA Collection Act.   "DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. If an arrest is supported by probable cause to hold for a serious offense  analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment."

  • Rosemond v. United States (No. 12-895) dealt with elements required to prove the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime.

  • Trevino v. Thaler (No. 11-10189), allowed petitioner's IAC claim to survive  even where a procedural default exists.
  • McQuiggen v. Perkins (No. 12-126),  an actual innocence claim can survive the expiration of AEDPA's statute of limitations. 

  • Fernandez v. California (No. 12-7822) was granted cert and may likely reverse Georgia v. Randolph,.  A defendant may have to be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search.  Fernandez has non-defense-friendly facts.

  • Metrish v. Lancaster (No. 12-547), No habeas relief where Michigan Court of Appeals reasonably applied federal law in rejecting ae diminished-capacity defense.

  • U.S. v. Zhen Zou Wu (1st Cir 2013) 11-1115P.01A Violation of Arms Export Control Act (ACEA)

  • UNITED STATES OF AMERICA, Plaintiff, v. DAMON S. FORBES, et. al., Defendants. Criminal Action No. 92-CR-105; UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 806 F. Supp. 232; 1992 U.S. Dist. November 20, 1992, Filed Primary Amines are not homologs to tertiary amines even where it occurs at the end of a hydrocarbon chain. (1) not substantially similar, (2) may not be derived by minor manipulations, (3) Further, they conclude that AET does not have a hallucinogenic or stimulant effect  [**4] on the central nervous system that is substantially similar to DMT or DET. (4) Finally, they believe that other scientists in their field would agree with their conclusions. Note that 21 U.S.C. § 813 elements are stated in the alternative (a) structure, or (b) stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar , or (c)with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than [such effect] of a controlled substance in [**7] schedule I or II (vague?)
  • Burrage v. United States (No. 12-7515). certiorari granted to determine:  (A). Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime lacking the need for foreseeability // proximate cause; (B) Whether a conviction for distribution of heroin causing death under mixed causation facts.
  • Boyer v. Louisiana cert withdrawn  where state fails to fund counsel for an indigent defendant for five years.
  • Missouri v. McNeely (No. 11-1425),  natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases. 

  • U.S. v. Muniz-Jaquez  (9th 2013) Denial of defense request under Rule 16 for Border Patrol dispatch tapes violates Jencks and Brady.  It must be shown that the aliens went beyond entry and of their own free will to be convicted of "being found" in the U.S.  District court abused its discretion by failing to order production.

  • U.S. v. Gonzalez-Aguilar (9th 2013) Rejected Plea Deal is not a deal.  Plea agreement for low range is rejected by the judge after guilty plea taken.  Judge offers defendant withdrawal of the guilty plea and opportunity to proceed to trial.  Rather than (1) re-negotiating, or (2) objecting based upon the details of the agreement, defendant acquiesces and elects to leave his guilty plea in place.  Where no objection was made, the courtis left with the high "plain error" threshold.

  • U.S. v. Needham  (9th 2013)  Incident at mall, which has nothing to do with photos, leads to discovery of the identity of the suspect. A warrant affidavit by detective recites a generalized, made-up profile of the class of defendants, and uses it to obtain a search warrant of defendant's residence. Needham’s motion to suppress is denied.  An almost-dissenting panel member concurs only because the outcome of this case is dictated by Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011).  Warrant based upon "rambling boilerplate"  from era of United States v. Leon ("good faith" exception to the exclusionary rule.) was stopped by United States v. Weber, 923 F.2d 1338, 1345 (9th Cir. 1991).



  • Zhengnan Shi v. CIR (No . 7218-12. 8-26-14) Good Discussion of Residency and the effect of the U.S. - China Tax Treaty.

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