Archive for November 2007

Judge Dee Benson – Motion to Recuse denied

November 29, 2007

BRYAN L. TRAVIS, Plaintiff, vs. PARK CITY MUNICIPAL CORPORATION, et al., Defendants.

Case No. 2:05-CV-269

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 86691

November 21, 2007

Plaintiff filed a motion to remove both Judge Dee Benson and Magistrate Judge David Nuffer from the case.

Title 28 U.S.C. § 455(a) provides that a federal judge must recuse himself “in any proceeding in which his impartiality might be reasonably questioned.” In applying this standard, the Tenth Circuit looks to determine “whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.” United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992). “The inquiry is limited to outward manifestations and reasonable inferences drawn therefrom.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).

Plaintiff’s evidence for bias consisted generally of several motions that either Judge Benson and/or Judge Nuffer had ruled in Defendant’s favor. However, Judge Benson holds that “an adverse ruling is not sufficient evidence of bias to satisfy the requirements for disqualification.”

“Mr. Travis provides no facts to support his allegations that Judge Benson and Judge Nuffer have a personal bias or prejudice against him. Rather, he makes cursory and unsubstantiated claims that Judge Benson and Judge Nuffer have worked against him in an effort to deny him justice.”

Motion to Recuse denied.

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Judge Dale A. Kimball – Motion for New Trial Granted

November 27, 2007

UNITED STATES OF AMERICA, Plaintiff, vs. KERRY DEAN BENALLY, Defendant.

Case No. 2:07CR256 DAK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

2007 U.S. Dist. LEXIS 85620

November 20, 2007

Judge Dale A. Kimball

Criminal trial was held on October 9-10, 2007. The jury returned a verdict of guilty on the afternoon of October 10, 2007. On October 11, 2007, counsel for defendant was contacted by a juror who expressed concern regarding racially prejudicial statements made by two jurors during the deliberations. The prejudice of these jurors had not been disclosed to the court and counsel during voir dire. Defense counsel then talked with another juror, who confirmed that such statements had been made during deliberations. Motion for New Trial was subsequently filed by defense counsel.

The court asked questions during voir dire that were specifically targeted at determining whether anyone had any prejudice toward Native Americans or held any preconceived notions about the Native American race that may impact their ability to be impartial in the case. Both jurors remained silent when these questions were asked, and did not convey to the court that they held any prejudice. Moreover, they failed to disclose to the court that they had lived on or near a reservation, and did not bring to the court’s attention that they had preconceptions about Native Americans due to their contact with that culture.

The court also stated that “had they [the jurors] answered the voir dire questions honestly and revealed their past contact with reservations and their belief that all Native Americans get drunk and get wild or violent, they would have been challenged for cause.”

“During jury deliberations, there was a conversation regarding the need to send a message back to the reservation, and one of the jurors clearly introduced information that was not in evidence. The juror considered and relied upon information contained in stories he had heard from his family members who were involved in law enforcement. These stories related directly to the type of case that was at issue in the instant case. It is unknown how many jurors relied on the information communicated by this juror.”

Based on two jurors’ failure to answer material voir dire questions honestly and the consideration of information not in evidence, Defendant’s Motion for New Trial was granted and the jury prior verdict was set aside.

Magistrate Judge Nuffer – Motion to Compel Discovery granted in part

November 27, 2007

CLEARONE COMMUNICATIONS, INC., a Utah corporation, Plaintiff, vs. ANDREW CHIANG, an individual, JUN YANG, an individual, LONNY BOWERS, an individual, WIDEBAND SOLUTIONS, INC., a Massachusetts corporation, and BIAMP SYSTEMS CORPORATION, an Oregon corporation, Defendants.

Case No: 2:07cv00037TC

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 85617

November 20, 2007

Case assigned to Judge Tena Campbell – Opinion written by Magsitrate Judge Nuffer

The Plaintiff, ClearOne Communications, Inc., moved to compel discovery against Defendant Biamp Systems Corporation.  . In general, Biamp complained that many of the requests used the phrase “reflecting” or “relating,” which were omnibus terms that made the request overly broad.

Although Judge Nuffer counseled that “ClearOne should strive to make its requests more precise,” the use of terms such as “relating to,” “pertaining to,” or “concerning” does not necessarily make a request overly broad or unduly burdensome as long as these phrases modify a sufficiently specific type of information.

Motion to compel granted in part.

Deseret News article re. Judge Cassell

November 26, 2007

Below is a link to an article regarding Judge Cassell and his post-judgeship plans.

http://deseretnews.com/article/1,5143,695230194,00.html