Appellate Law
Appellate Law and Practice 
Daily summaries of appellate cases from federal circuit courts of appeal. On the weekends, the blog provides appellate practice tips and book reviews.
Post Frequency: 1.8/day Last Entry: December 10, 2008 at 16:15:09 Recent Entries: 612
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Giving it up.
Posted on December 10, 2008I am going to be discontinuing my participation in this blog in the next week or so. If you want someone to blame, blame 1) non-lawyers; 2) furries; and 3) the victims rights/tort reform industry.
CA1: large law firm loses case on behalf of client
Posted on December 08, 2008US Securities & Exch v. Tambone, No. 07-1384. This is a close case. On the one hand, the government is bringing an enforcement action regarding misleading prospectuses to sell mutual funds. On the other hand, the defendants are represented by...
CA1: It?s official. Everything is mail fraud.
Posted on December 08, 2008US v. Hebshie, 07-2339 (12/4/08). This is a federal arson case. As you know, the framers of the constitution really envisioned the federal government prosecuting insurance fraud (or, as they say, ?mail fraud?). The first says that pretty much any...
CA1: no preemption where no conflict ? just assistance
Posted on December 08, 2008Fitzgerald v. Harris, No. 08-1306 (12/5/08) holds that the Allagash Wilderness Waterway ("AWW"), Me. Rev. Stat. Ann. tit. 12, § 1882 is not preempted by the Wild and Scenic Rivers Act ("WSRA"), 16 U.S.C. § 1271 et seq (which they...
CA1: Drinking and driving isn?t accepting responsibility
Posted on December 08, 2008U.S. v. Jordan, No. 08-1432 (12/5/08). The defendant committed some criminal acts while out on bail ? namely drinking and driving. At sentencing, the District Court denied an offense level reduction under § 3E1.1 based on his putative acceptance of...
Programming note
Posted on December 05, 2008Due to work and illness I have fallen a day or so behind. I should catch up this weekend. However, because of the constant insults from furries and their allies, ?The Tort Reformers? I am considering ceasing this project.
CA1: proper punishment for a stalker that refused to retain a lawyer before not paying taxes
Posted on December 01, 2008USA v. Steirhoff, 08-1183. Selya tries to be dramatic. He says ?The tale of how the stalker became the stalked follows.? Anyway, the defendant seems like a bad guy because he talked to the police without a lawyer. And he...
CA1: what to do about a shooting of a mentally ill person
Posted on November 29, 2008Est. of D. Bennett v. Wainwright, No. 07-2169. Mentally ill guy off his meds shoots at some cops. Mentally ill guy gets shot by cops. There issues here of notes. The estate appeared to make a ?loss of consortium? argument,...
CA1: surprise! creating false invoices to defraud Uncle Sam is corrupt
Posted on November 29, 2008U.S. v. Marek, No. 07-2437 (11/26/08). This is sort of interesting. There was an audit by the IRS. The defendants appeared to participate in the audit in good faith. Problem was that they went so far as to procure back-dated...
CA1: making non-lawyers step outside hotel rooms okay
Posted on November 26, 2008US v. Parker, No. 07-2776. This is some kind of fight between drug dealers, so the First is going to have little sympathy for them. So, being asked to step outside one?s hotel room is not considered a ?seizure.? Strangely,...
Can you say this without giggling?
Posted on November 24, 2008Second, the Commission concluded that the broadcast of Jackson?s exposed breast was shocking and pandering.At least eight government attorneys can, and they put it on p. 8 of the petition for cert. in the Janet Jackson case.
CA1: Plea waiver enforceable
Posted on November 24, 2008US v. Acosta-Roman, Nos. 07-1238, 07-1239 dismisses an appeal based on an appeal waiver. The defendant argued that because an enhancement wasn?t a condition of the agreement, that the issue can still be raised. But, the First looks at the...
CA1: laches and holocaust painting case
Posted on November 19, 2008Vineberg v. Bissonnette, No. 08-1136. This is a holocaust case. The Nazis forced someone to give up a painting because they were not German enough (strangely this sounds like some of the rhetoric I heard in the last election). Eventually...
CA1: data-mined prescription information not protected speech
Posted on November 18, 2008IMS Health, Inc. v. Ayotte, No. 07-1945. This is a big case. Essentially pharmaceutical salespeople were using doctors prescription histories (in databases) to generate sales leads and shape their sales pitches. Then, New Hampshire said that was a bad idea...
CA1: Medicare fight over research ends in heroic victory for government
Posted on November 17, 2008RI Hospital v. Leavitt, No. 07-2673. There is a medicare reimbursement fight. Essentially, teaching hospitals get paid more for the procedures they perform, because everyone seems to agree that it costs more to run a hospital that teaches. The question...
CA1: moody teens, ERISA, and shortening the limitations period
Posted on November 14, 2008Island View Residential Treatment Center et al v. Blue Cross Blue Shield of Massachusetts, 08-1287. Okay, before I begin, I gotta get something off my chest: I am sorry for what I said about the people that are both partners...
CA1: Girl interrupted was ?molested? not ?exploited?
Posted on November 14, 2008National Union Fire v. West Lake Academy, Nos. 07-2190, 07-2204 (11/13/08). This is a fun insurance coverage case. It is pretty rare that case begins with the words ?Fourth-party plaintiff Jane Doe (?Doe?)). Westlake Academy is one of those places...
CA1: The District Court acted just too jerky in dismissing the complaint
Posted on November 10, 2008Linares v. U.S., No. 08-1548. This is an FTCA case. However, it degenerated into a fight over ECF. For some reason some (perhaps most) courts require that the parties provide the court with paper copies of electronic filings. I never...
CA1: vindicative license revocation okay due to preclusion
Posted on November 10, 2008Giragosian v. Ryan, No. 08-1067. One upon a time there once was a gun shop that would give lessons in the sports of shotting-stuffs-man-ship. While being taught the art of shooting, a customer committed suicide. The police chief revoked his...
CA1: declaratory judgments not that preclusive
Posted on November 10, 2008Andrew Robinson v. Hartford Fire, No. 08-1255. This is an insurance coverage dispute. It would be interesting if this area of practice had more dedicated lawyers, but everyone I meet in it seems obsessed with non-law stuff and does not...
A need for headlines?
Posted on November 09, 2008Dear AL&P, I missed the headlines on Wednesday, but I have a lay-person newspaper fetish. Is there some way that I can look at the headlines from newspapers aimed at non-lawyers from throughout the world? Signed, /s/FetishD00D at Large Law...
The End of the Nine-Eleven Era?
Posted on November 07, 2008I don?t know if anyone else has said this, but I think the recent election has signaled the end of an era where political discourse was centered around the events of that fateful day. Anyway, please give me credit if...
CA1: crack retroactivity doesn?t go below mandatory minimums
Posted on November 07, 2008US v. Ganun, 08-1416. Seems to be the first Crack-retroactivity appeal. This guy, appearing pro se, wants to get a reduction below the statutory mandatory minimum. He loses.
CA1: Land Rover dealer not that oppressed
Posted on November 07, 2008Wagner And Wagner Auto Sales v. Land Rover North America, Inc., 08-1456. As the name suggests this is a dispute between a car dealer and a manufacturer. Land Rover terminated the agreement. Applying Automobile Dealer's Day in Court Act, 15...
CA1: developer plaintiff moves forward with ?class of one? environmental case
Posted on November 06, 2008SBT Holdings, et al v. Town of Westminster et al , 08-1512. This is a 1983 case for rich people. The First reverses the District Court and holds for the developers. SBT bought property. Storms came. Runoff started messing with...
CA1: a Checkbook is not a payment under ERISA
Posted on November 06, 2008Mogel v. UNUM Life Insurance, No. 08-1334. This is an ERISA case. It holds that ?security accounts? that were established to fund death benefits are not separate accounts and therefore UNUM?s ERISA-based fiduciary duty applies. UNUM claims that it complied...
Congratulations
Posted on November 05, 2008Congratulations to Barack Obama, Esq. and Joe Biden, Esq., who won some election or something.
CA1: the limits of Scott v. Harris
Posted on November 05, 2008Parker v. Gerrish, No. 08-1045 affirms a jury verdict in a 1983 case where a cop tased someone on video. That?s a surprise. So, there must be some important law here. Actually, the facts are very important in light of...
CA1: cops can take your drivers? license without seizing you
Posted on November 05, 2008US v. Ford, No. 07-2613 upholds a ruling denying a motion to suppress a gun. Some cops leaned out the window and asked a poor person some questions and took his drivers? license. The poor person raised his hands. He...
CA1: First speaks on material misrepresentation
Posted on November 05, 2008Commonwealth Land v. IDC Properties, No. 08-1130 affirms a grant of a declaratory judgment declaring some title insurance void because of ?material misrepresentations.? At trial, there was no showing of fraudulent intent, but some showing of omission without specific questions...
CA1: forfeiture remand in light of Santos and excessive fines clause
Posted on October 30, 2008US v. Levesque, No. 08-1344. This is a three million dollar forfeiture judgment against a drug mule. The First says that yes, indeed, 21 U.S.C. § 853 authorizes money judgments. Next, the First agrees with the parties that in light...
CA1: Fifteen year mandatory minimum for guy in wheelchair trying to produce child pr0n okay
Posted on October 30, 2008US v. Polk, No. 07-2425 asks the question of whether the ?ifteen-year mandatory minimum term of imprisonment under 18 U.S.C. § 2251(e)? violates the Eighth. Selya writes the opinion so you can tell where it is going. This is a...
CA1: District Court made all sorts of errors in awarding sanctions
Posted on October 29, 2008Jensen v. Phillips Screw, No. 07-2766 vacates sanctions under 28 U.S.C. § 1927 for vexatious litigation, because the District Court found the law firm in a class action had not completely investigated just what was up with the proposed class...
CA1: speedy trial act and conspiracy counts
Posted on October 27, 2008US v. Grullon. No. 07-1982 (10/24/08). In this case, the First turns back a sufficiency challenge even though all the testimony came from the defendant?s ?confederates.? Also, the first says that interpreting ?drug talk? to be, in fact ?drug talk?...
CA1: some ? but not all ? cops are abusing trust by buying drugs
Posted on October 27, 2008US v. Arroyo, No. 07-2423. An ex-cop got busted for cocaine and ecstasy possession (actually, it seems he was a cop at the time he was busted, but the opinion is not clear on that). He was charged with conspiracy....
CA1: no contempt for attorney that disclosed grand jury materials that he provided
Posted on October 27, 2008In Re: Grand Jury (Islamic Investment Company of the Gulf (Bahamas) Limited), No. 07-2353 (10/10/08 -- reissued for obvious reasons). This is an interesting case. Although some Republicans are trying to scare us with the use of the word ?Islamic?...
Sorry for being away. Just catching up now.
Posted on October 27, 2008I know it is unethical and immoral and grounds for disbarment to miss a case (and, quite frankly, it is malpractice to not read a court of appeals case), but I got a note from my spiritual advisor.
CA1: tax blindness instruction
Posted on October 22, 2008US v. Anthony, No. 07-1670. Oh god, this is sad. This guy was a Coastie for two decades. Then he decided he didn?t need to pay taxes. On the one hand, I hate tax cheats. On the other hand, I...
CA1: No 5th or 6th problem in trickery case
Posted on October 22, 2008US v. Boskic, No. 07-1188. This is a big case under the Fifth and Sixth amendments. The First sides with the government. The defendant, a Bosnian, was ?guilty on two counts of making false statements in his applications for refugee...
Ten Reasons Obama is anti-American
Posted on October 22, 2008He did not make partner at his firm. There is no evidence that either of his daughters have been admitted to law school, let alone secured a summer associate position. Not a single judge has violated the LCHP to extend...
CA1: jury can always draw inferences against poor people
Posted on October 20, 2008US v. Morales-Machuca, Nos. 06-1283, 07-1001 (10/17/08). The underlying facts involve a couple of botched armored car robberies. Most of it comes down to an unrenewed Rule 29 motion. The Firsts gets in a few shots in the war on...
CA1: It?s okay to Begay outside of of the ACCA
Posted on October 20, 2008US v. Herrick, No. 07-1553 (10/17/08) vacates a sentence for being a felon in possession of a firearm in violation of Title 18 U.S.C. §§ 922(g)(1) and 924(a)(2) under Begay v. United States, 553 U.S. ___, 128 S.Ct. 1581 (2008)....
Programming note
Posted on October 20, 2008Sorry for the delay in getting cases out. I was meeting with some very important people that had a lot of social skills and I had to spend the three days prior to the meeting at a beauty spa to...
CA1: pleading the Fifth in one proceeding prevents use in later MSJ
Posted on October 20, 2008SEC v. Ficken, No. 07-2532 affirms a grant of summary judgment to the SEC and against a broker for Prudential in a case brought under 15 U.S.C. § 77q(a), 15 U.S.C. § 78j(b), and 17 C.F.R. § 240.10b-5, in which...
CA1: attorney fees in successful forfeiture cut
Posted on October 20, 2008US v. One Star Class Sloop, No. 08-1152. Boat: 2 Government: 1 This is a forfeiture case, where the court earlier held that the government didn?t do enough to notify a part owner of the vessel that was owned by...
Programming note
Posted on October 17, 2008Will get to Friday's opinions this weekend. In the mean time, keep on talking about politics like someone that didn't go to law school.
CA1: $3.1 award affirmed in FBI-agent leak case
Posted on October 16, 2008McIntyre v. US, Nos. 07-1663, 07-1664. This case has a very long and celebrated history. But not much law is made here. Essentially, an FBI agent leaked the identity of a mob informant, and the mob informant was killed. But,...
CA1: Pullman abstention doesn?t apply to fight over poor-people law fees
Posted on October 15, 2008Batterman v. Leahy, No. 07-2653. This is a long prolonged suit by a lawyer that was contracted to represent children that were being taken away from their poor parents. There was a lot of underlying litigation, and the Committee for...
Saudi Arabia's respect for First Amendment values
Posted on October 14, 2008For some crazy reason, the people that prattle on the most about how great the death penalty is, are the ones that howl the loudest about preventing the electorate from witnessing an election so that Americans can decide for themselves...
CA1: no reasonable expectation of privacy in unpaid storage locker
Posted on October 14, 2008US v. Lnu, Nos. 07-1780, 07-2020 (10/10/08). This is a social security card fraud case. The defendant was convicted under 42 U.S.C. § 408(a)(6). However, the underlying question revolves around whether the cops could search a storage locker that he...
CA2: Judge Jacobs --- Fu*k the poor. They don?t deserve lawyers because they might win
Posted on October 13, 2008ACSblog reports that Second Circuit Judge Dennis Jacobs decided to go to a Federalist Society event and bash pro bono work. Unfortunately, because Judge Jacobs was trying to score political points he was incapable of arguing nuance. Therefore, I need...
Not sure if this is a joke or not.
Posted on October 09, 2008http://www.moms4sarahpalin.blogspot.com/
CA1: Judge Dyk sides with defendants in Miranda case
Posted on October 09, 2008US v. Jackson, No. 07-2510 (10/8/08). This is strange. Judge Dyk of the Federal Circuit sides with a defendant. Usually when he is sitting by designation he rubber-stamps the District Court, sending someone to jail for a long time. Anyway,...
CA1: something was properly admitted
Posted on October 09, 2008US v. Vasquez, No. 07-2796 (10/8/08). This is really strange. The First seems not be taking any of this appeal seriously, and is almost mocking of the defense. Apparently the defendant is making an argument that something should be suppressed....
CA1: okay to say prosecution doesn't have to disprove "other guy did it" theory
Posted on October 09, 2008Farley v. Bissonnette, No. 08-1094 (10/8/08) denies a petition for a writ of habeas corpus. The first issue was whether "the trial judge's instruction to the jury that the prosecution 'does not have the burden of proving that no one...
Uighurs to come to homeland to roost
Posted on October 07, 2008SCOTUSblog has a post which begins:A federal judge has ordered the government to release a group of 17 Chinese Muslims held at Guantanamo Bay into the United States, and to present them in his courtroom at 10 a.m. this Friday...
CA1: reasonable accommodation issue creates question of fact
Posted on October 07, 2008Enica v. Principi, No. 06-2187 (10/6/08). This is an ADA case. The plaintiff is a nurse that can?t lift heavy things due to a medical condition. First the first finds that an earlier administrative proceeding was not entitled to preclusive...
CA1: file the notice of appeal right
Posted on October 06, 2008In Re: High Voltage Engineering Corporation, No. 07-2589. Selya kicks this decision off with a pithy saying. Despite the bankruptcy issues, this is resolved on procedural grounds, i.e. that the notice of appeal to the district court was inadequate if...
CA1: translation problems translate into claim preclusion and Rooker-Feldman problems
Posted on October 06, 2008Puerto Ricans for PR v. Dalmau-Ramirez, No. 07-2700. I am sure that the facts really mean a lot to Puerto Ricans, but it comes down to a question of civil procedure. The District Court dismissed the petition on the basis...
CA1: Patent Lawyers? Common law lien question certified
Posted on October 06, 2008In Re: Engage, No. 08-1257. The First decides that the question of whether Massachusetts attorney's lien statute, chapter 221, section 50 of the Massachusetts General Laws, applies to patent prosecution work performed by attorneys is really important and there isn?t...
Department of {censored} Censors AL&P
Posted on October 06, 2008In order to instill purity at a certain large federal government agency, it has blocked AL&P. But, everyone at there can still view Above The Law.
CA1: no implied crediting procedures in bankruptcy plan
Posted on October 03, 2008Ameriquest Mortgage v. Nosek, 07-2173, 07-2174. In an adversary proceeding, the bankruptcy court awarded the debtor ?In an adversary proceeding, the bankruptcy court awarded appellee Jacalyn S. Nosek ("Nosek") $250,000 in emotional distress damages and $500,000 in punitive damages for...
Second Circuit Overturns terrorism convictions
Posted on October 03, 2008...and reassigns to new judge. It?s a great case. It includes difficult informants, cumulative error, and lots of evidentiary rulings.
Law Reviews as an Academic Circle Jerk?
Posted on October 02, 2008Simple Justice picks up the ball, and PrawfsBlawg runs with it.
CA1: First bends to help government prove negative in antique gun registration case
Posted on October 02, 2008US v. Giambro, No. 08-1044 affirms a conviction for possessing an antique gun. (He was acquitted of a number of state charges.) The least interesting issue is under 26 U.S.C. § 5861(d), where the court holds that the defendant need...
CA1: 3-month medicare fraud sentence affirmed after Gall GVR
Posted on October 02, 2008US v. Thurston, No. 05-2271. This is a sentencing case that has been to the First Circuit two times before. (our coverage here). Skipping through the procedure, the government appeals a three month sentence for Medicare fraud. After a GVR...
CA1: First continues to usurp executive and legislative function on immigration matters
Posted on October 02, 2008Odmar v. Mukasey, No. 07-2361 (unpublished) (10/1/08). The petitioner is from Indonesia. He filed his petition for asylum late. There is an interesting question about the extent to which the First Circuit can review an IJ?s application of an incorrect...
CA1: Petitioner not beaten enough for asylum
Posted on October 01, 2008El-Labaki v. Mukasey, No. 07-1191. The petitioner is a Lebanese Greek Orthodox Christian that worked in Lebanon a lot. The IJ denied his claim, writing:While recognizing that petitioner?s ability to travel was merely encumbered by the short-duration detentions at the...
CA1: government liable when postal workers steal mail for political ends
Posted on October 01, 2008Levasseur v. US Postal Service, No. 08-1266. This case would be interesting but for the fact that the plaintiff is a pro se. As you know, there is an exception in the FTCA for that preserves sovereign immunity for "[a]ny...
CA1: No authority to revisit final order memorializing consent decree when policy changes
Posted on October 01, 2008Ricci v. Okin, No. 07-2522, 07-2523. This case revolves around a consent decree meant to reform a mental hospital. The underlying litigation ended in 1993, with an ?disengagement order.? Then, in 2006, the court issued an injunction prohibiting transfers of...
CA1: forged CDs make someone an aggravated felon
Posted on September 30, 2008Magasouba v. Mukasey, No. 07-2298. This petitioner, an ?aggravated felon? wants to stay under the CAT. The First question is whether selling pirated CDs is an aggravated felony. The state statute is R.I.G.L. § 11-17-13(c)(1). The BIA looked to 8...
CA1: remand in Indonesian homosexual economic persecution case
Posted on September 30, 2008Kadri v. Mukasey, Nos. 06-2599, 07-1754. This is strange. The petitioner is a gay doctor in Indonesia. The IJ granted granted his petition. The government appealed. What the hell? What the hell is OIL doing appealing this? The BIA reversed...
CA1: No E&O coverage for falsified credit reports
Posted on September 30, 2008New Fed Mortgage Cor v. National Union Fire Insurance Company, No. 07-2762. This case is timely. As you know, many of our clients have caused the downfall of civilization as we know it. Anyway, New Fed is a residential mortgage...
CA1: Cambodian petition not taken seriously
Posted on September 26, 2008Keo v. Mukasey, No. 08-1103 (9/25/08) (unpublished). The petitioner is from Cambodia. The BIA claims says he wasn?t oppressed. The First does not take his petition seriously, but decides that the BIA is some kind of court or something. Whatever.
CA1: First usurps foreign policy making power
Posted on September 26, 2008Sunarno v. Mukasey, No. 07-2623 (9/25/08) (unpublished). The petitioner is an Indonesian Catholic. There was a late filing for asylum, and a petition to reopen. Unfortunately, the First goes a little crazy and starts creating separation of powers issues, by...
CA1: mixed motive oppression y?all
Posted on September 26, 2008Singh v. Mukasey, No. 07-2187 (9/25/08). The petitioner is from India and claims to be oppressed because of his political beliefs, or the beliefs of his father. The issue is how to deal with mixed-motives for oppressing someone under the...
CA1: First abdicates its role in reviewing immigration cases
Posted on September 25, 2008Rabbat v. Mukasey, No. 08-1330 (9/25/08) (unpublished). The petitioner is a Syrian Christian. The First says that because the asylum claim was filed late, it lacks jurisdiction to review it. But, it can review the withholding claim. The First then...
CA1: First sends Falun Gong practitioner back without taking appeal seriously
Posted on September 25, 2008Lu v. Mukasey, No. 08-1113 (unpublished) (9/25/08). The First Circuit denies of a petition of a Falun Gong practitioner, sending her back to China where she will, I am sure be able to practice her religion. During my trip to...
CA1: another chapter in Narragansett Indian Tribe lawsuit ends on procedural note
Posted on September 24, 2008Thomas v. State of RI, No. 07-1985. This is yet another appeal regarding a raid onto the tribal lands. As you may recall, the First Circuit in Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 30-31 (1st Cir. 2006)...
CA1: sex offender registration
Posted on September 24, 2008US v. Alcantara-Mendez, No. 06-2675 (unpublished). This is strange. A sex offender didn't register. His supervised release was violated. But, the District Court didn't say what the grounds were, but the First says it was was obvious. Every argument in...
CA1: franchise fight
Posted on September 24, 2008New England Surfaces v. E.I. Du Pont De Nemours, No. 08-1048. This is a fairly complicated franchise fight which ends in a motion in limine regarding an expert on damages. The First explains this: first, that even assuming the motion...
CA1: cop fight results in valid First Amendment claims
Posted on September 23, 2008Welch v. Ciampa, No. 07-2470. This is one of those frequent cases where cops and politics result in lawsuits. See, although cops frequently tase poor people, they also like to sue each other. It is part of cop culture, too....
CA1: major, yet squirly opinion on gun-type as an element v. sentencing factor
Posted on September 23, 2008US v. O'Brien, No. 07-2312. The First splits with other circuits and find that ?[U]nder a statute forbidding the carrying and use of guns in connection with a federal crime, the nature of the weapon is to be found ......
Monday Snark: Virginia is for appellate Finger-Pointing
Posted on September 22, 2008The Washington Post has an article describing how Virginia keeps having their legislation declared unconstitutional. Some people blame the lawyers. Some blame the legislature. Because it is Virginia, some blame Mexicans, Jews, the handicapped, or lady voterettes...
CA1:Cambodian fishing cop not oppressed
Posted on September 19, 2008Nou v. Mukasey, No. 07-1546. Judge Dyk of the Federal Circuit says this ?we conclude that the BIA did not err in rejecting Nou?s asylum claim and in denying Nou?s petition for judicial review.? I believe that he might not...
CA1: No problem in excluding victims' prior convictions
Posted on September 19, 2008US v. Nguyen, No. 07-1217. Bookies. Beatings. The big question is whether the judge shouldn?t have excluded the ?victims? prior convictions under FRE 609. The District Court, for its part let the defendant?s convictions in, however. The defendant then tried...
CA1: costs in professional responsibility case not dischargeable
Posted on September 19, 2008Richmond v. NH Supreme Court, No. 07-2671. Cases with names like this are either very interesting, or very stupid. But, this one is different. It is a freakin? Bankruptcy case. Combined with a professional responsibility case. We know where this...
Dissenting Judge Tells Lawyers to Take It to YouTube
Posted on September 18, 2008A couple days ago we commented on Buckley v. Haddock (11th Cir. 2008), in which a few law clerks on the Eleventh Circuit got off on explaining how it is not only okay to tase the shit out of a...
Another reason why a right to a jury trial matters
Posted on September 17, 2008Injustice Anywhere makes a point about the right to a jury trial. It is possible to argue the law to the jury. Now, why does this matter? When children of the poor are arrested because they are not at their...
CA1: so that is what an appeal waiver means
Posted on September 17, 2008US v. Pimentel, Nos. No. 06-2432, 06-2616 (unpublished). The First sayeth:Where, as here, a defendant agrees to waive his right to appeal but then appeals and does not address the appeal waiver in his appellate brief, "he forfeits any right...
CA1: switching horses on habeas
Posted on September 17, 2008Stroyny v. Hall, No. 07-1825 (unpublished) rejects a an IAC habeas claim. The First seems to say that his theory as to why defense counsel?s opening argument was ineffective conflicts with the argument as to culpability adduced on appeal.
CA1: Allen charges, Kimbrough remands, and interstate travel to meet minors
Posted on September 17, 2008US v. Vanvliet, No. 07-1578, is an appeal of a conviction for under 18 U.S.C. § 2423(b) for ?interstate travel with the intent to engage in an illicit sexual act.? I swear, these pervs are totally not romantic. Meeting a...
CA1: First does a little too much in resolving BAPCPA appellate procedural question
Posted on September 17, 2008In re Linda Lynn Weaver, No. 08-8046. ?The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), Pub. L. No. 109-8, 119 Stat. 23, 202-03. That statute permits direct appeals to the court of appeals, with that court's permission,...
Scalia?s usual nonsense about law schools and Joe Six-Pack
Posted on September 17, 2008Justice Scalia (whom I tend to agree with on a number of issues), bemoans that there are too many ?liberal? classes at the University of Chicago. He makes some good points, but a few of them are hypocritical and stupid....
What do abortion and guns have in common besides being a lot of fun?
Posted on September 16, 2008Give up? Judge Wilkinson whines about how lawyers for the government couldn?t convince the court to let them ban either of them. Tnx Legal Theory Blog. Seriously folks, just give it up. The rights to hold a gun and name...
Odds and Ends
Posted on September 15, 2008Cleaning out the Bloglines ?Keep New? list here. Kennedy isn?t what you think it is. CaafLog probably can be credited with having started the whole ?The Supremes Counted Noses wrong in Kennedy thing? has a post which explains the view...
Appellate Politics and qualified immunity: The 11th shows its stupidity in hiding its activism
Posted on September 13, 2008A number of blogs are buzzing about Buckley v. Haddock, an unpublished decision from the Eleventh Circuit. In this case, some cop handcuffed and tased the shit out of some guy on the side of the road. The Eleventh splits...
CA1: Massachusetts law on custody means that aggravated felon is a citizen and gets to stay
Posted on September 12, 2008Pina v. Mukasey, No. 07-2311. This is an actual legal issue involving immigration. The issue comes down to whether someone is a citizen under the Child Citizenship Act of 2000 (?CCA?), 8 U.S.C. § 1431. The guy later committed an...
CA1: Drama at Dartmouth?s drama department
Posted on September 12, 2008Sabinson v. Trustees of Dartmouth College, No. 08-1043. Academics are generally paid less than lawyers. Therefore, they fight more. And harder. And more drama. This case is cast under Title VII, 42 U.S.C. § 2000e (2000) et seq., and under...
CA1: Pakistani Shi'ite petition denied because of failure to substantiate Canadian petition
Posted on September 11, 2008Khan v. Mukasey, No. 08-1135 (9/10/08) denies the petition of a Pakistani Shi'ite. He says that Sunnis were harassing him or something. He came to the US, but 9/11, he decided that the US wasn?t the best place to seek...
Programming Note.
Posted on September 10, 2008There are two immigration petition denials today. But I am going wait until I get home to digest them with some fava beans and a nice chianti.* *I know I am living on the edge by doing this, however, there...
CA1: Claim preclusion in ERISA suit
Posted on September 10, 2008Herman v. Meiselman, No. 07-2753 affirms the dismissal of an ERISA lawsuit on claim preclusion grounds. The First says that the current group of claims are pretty much the same as the cross-claims in the earlier lawsuit. (?The factual basis...
CA1: kiddy convictions a career offender make
Posted on September 10, 2008US v. Torres, No. 07-2331 affirms the sentencing of a guy challenging whether he is a career offender. Essentially he committed a crime at 17, but was convicted at 20. In seeking to put him away, the government was able...
CA1: another Puerto Rico drug case
Posted on September 08, 2008US v. Malpica-Garcia, Nos. 05-2492, 05-2493. This case begins by telling us everything we ever wanted to know about drug dealing in Puerto Rico. A defendant raises a sufficiency claim to a conspiracy charge. What is interesting about this is...
CA1: Stock option expert okay
Posted on September 08, 2008First Marblehead v. House, No. 07-2789 affirms a jury verdict in an employee stock option case. The First time the case was at the First was here: First Marblehead Corp. v. House, 473 F.3d 1 (1st Cir. 2006) (our coverage...
A glimpse into a 24-hour curfew town in Arkansas
Posted on September 08, 2008Just thought you guys would like to know what it looks like to live in a town with a twenty-four hour curfew, where the police are stopping all the poor people. More story here. Earlier coverage here. The key phrase...
First Circuit Audio Files
Posted on September 05, 2008I thought everyone knew this, but the First Circuit has its oral argument audio files online. Tnx. PRACDL.
CA1: an ambiguous green light to prosecutorial (mis?)-conduct in state courts
Posted on September 04, 2008Raposa v. Bissonnette, No. 07-2061 (unpublished) affirms a denial a petition for a habeas writ for reasons I don?t understand where the petitioner alleged ?, that the prosecutor's summation violated Raposa's due process rights, as did aspects of the prosecutor's...
CA1: First says suggestive lineup was okay
Posted on September 04, 2008US v. Garcia-Alvarez, Nos. 07-1471, 07-1697 affirms as carjacking conviction. Anyway, there are some pretty discrete legal issues. First, there seems to be no dispute that there is evidence that the defendant was making a call from somewhere other than...
CA1: defective IFP Applications toll statutes of limitations
Posted on September 03, 2008McGill v. U.S. Express, No. 08-1101 (unpublished) remands a case which was dismissed on statute of limitations grounds. It seems that the statute of limitations ended during the period in which the plaintiff was trying to perfect her in forma...
Why partners are probably lying
Posted on September 03, 2008C&F points to a very stupid discussion in which some lawyers claim that associates should pay firms to ?learn? the law. C&F points out that if associates were so darn unprofitable, the large firms would, indeed, open their books and...
Military Justice and Art. I Court news
Posted on September 02, 2008Two items of note. One is from the Onion. The Onion Reports that:A Pentagon spokesman said that Delacroix's cause of death?sniper fire while attempting to save an injured Iraqi boy?will be changed to AIDS in the official record.And speaking of...
Law review note topic: All lies are not created equal according to St. Augustine
Posted on September 01, 2008Since some of my readers are looking for law review article or note topics, I figured I would throw this out there. Some time ago, I covered the ?legal ethical? issue of lying here and here and here, Now here...
Today's prosecutorial whining about the BS CSI effect
Posted on September 01, 2008CrimProfBlog points to this story in which Miami prosecutor Michael Von Zamft tries to justify his failure to obtain a conviction by blaming the jurors. Other prosecutors would have either admitted their incompetence, or say simply that the jury spoke...
CA1: a bad, unpublished case on tax evasion and privileged materials
Posted on August 30, 2008US v. Schussel, No. 07-2095 (8/29/08) (unpublished). Again, why the hell was this unpublished. This is freakin? major case in criminal and tax practice. What the hell is the First thinking? Are they trying to hide something? Or are they...
CA1: plain meaning of 4A1.1 ?
Posted on August 29, 2008US v. Hernandez, No. 07-1828. Selya begins this opinion with a bunch of nonsense: ?oddly placed transitional expression in an application note and the ingenuity of able counsel combine to give us momentary pause, we conclude that the guideline provision...
Ali G and Richard Thornburgh on analytic jurisprudence
Posted on August 29, 2008Ali G and Dick Thornburg have a rather deep conversation about analytic jurisprudence, which is more informative than most public statements made by lawyers to the public these days. He also discusses private ordering and the death penalty, and Thornburgh...
CA1: First disses brief
Posted on August 29, 2008Kurniawan v. Mukasey, No. 07-2421 (8/28/08) (unpublished). This denies the petition fore review of an Indonesian Muslim that converted to Christianity. The First writes:He argues that the persecution he suffered in Indonesia, in conjunction with the 2005 Country Report on...
CA1: harmless Kimbrough error
Posted on August 29, 2008US v. Ayala, No. 07-1570 (8/28/08) (unpublished). There is something disturbing about this opinion. I don?t know what it is. It might be because it is longer than most unpublished opinions. Perhaps there is some big issue that the First...
Comcast places limits on bandwith
Posted on August 29, 2008So, rather than being squirley about how much of the internet you can use, they say that you can only use 250gb per month. Tnx HackADay. Comment: I think this is good. Comcast?s limits are adequate for home use (and...
CA1: flip-flopping District Court judge leads to reversal
Posted on August 28, 2008US v. Mala, Nos. 06-1887, 06-1888. Tom Lincoln, a friend of the blog wins one. The big issue is whether a confession should have been admitted. The District Court seems to have had some doubts about the quality of the...
CA1: equitable shares of the profits in a Lanham Act case
Posted on August 28, 2008Venture Tape Corp. v. McGills Glass, No. 07-1186. It?s tape v. glass. Tape won in a trademark infringement suit, after both parties moved for summary judgment. The underlying issue was ?likelihood of confusion? (as you can see, I don?t really...
CA1: affirmative defenses to sexual harassment discussed
Posted on August 28, 2008Chaloult v. Interstate Brands, No. 07-2694. This case involves the affirmative defense that an putatively vicariously liable employer may assert in a sexual harassment case under Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus...
CA1: preponderance of evidence constitutionally okay in attorney discipline
Posted on August 28, 2008In Re: Malcolm J. Barach, No. 06-8033 suspends a lawyer for two years based on the Massachusetts? SJC?s suspension for failing to keep adequate records regarding client funds. I guess the First Circuit sets out the framework litigating these issues.....
CA1: First usurps foreign-policy making role to help government
Posted on August 28, 2008Datau v. Mukasey, No. 07-1996 denies a petition of an Indonesia Christian. She looks Chinese. The IJ said some weird things about how he had "concerns" about the truthfulness of the story, but didn't find it credible. What does that...
CA1: health fraud losses and sentencing
Posted on August 28, 2008US v. Yelaun, No. 07-1651 (8/27/08). This is a health fraud case. The guy was convicted of getting paid for tests not done. There is a variance issue. But, the First says ?gotcha? the indictment was sort of vague (as...
CA1: drugs, guns, and details
Posted on August 28, 2008US v. Sanchez-Badillo, Nos. 05-1800, 05-2045 and 05-2047 (8/27/08) affirms a drug conspiracy case. The big issue is whether there were multiple small conspiracies or one big conspiracy. The first gets to play the ?totality of the evidence? and affirms...
CA1: agreements to draft an agreement enforceable and good faith indemnification
Posted on August 28, 2008Fidelity & Guaranty v. Star Equipment Corp., No. 07-1999 (8/27/08). This is a contract dispute. The parties used the District Court?s ADR program, and a memorandum was produced. But, the parties backed away from it. The District Court decided that...
Your kid is stupid
Posted on August 28, 2008Any partner or associate that claims to have a gifted kid is, statistically speaking, a liar. Therefore, from this point on, I will no longer trust anyone that claims to have a gifted kid.
Support of the notion that the US is not ?prison nation.?
Posted on August 27, 2008Just about every year, someone comes out with a survey which says that the US is imprisoning more people than other countries. There are three reactions to this: This is bad. We are an unenlightened society that likes to put...
Odds and ends
Posted on August 27, 2008Overheard in New York has a series of quotes from people associate with known arrestees. For example, a non-law-student was heard to say ?You've never been arrested? I have never met anyone that has not been arrested!? Certainly not law...
CA1: Petition for review of Colombian asylum-seeker granted
Posted on August 25, 2008Bonilla v. Mukasey, No. 07-1813. The petitioner is a Colombian. FARC was giving him a hard time. So he moved to Venezuela, where he got a ?permanent resident? stamp. Then he went back to Columbia. The IJ concluded that he...
CA1: Copt not that oppressed
Posted on August 25, 2008Abdelmalek v. Mukasey, No. 07-2819 denies a petition for review of an asylum-seeking Egyptian Coptic Christian. He is a doctor, whose wife owned a building that collapsed killing a lot of Muslims. The First denies the petition for review. However,...
CA1: appellate waiver valid
Posted on August 25, 2008USA v. Edelen, 07-1189. This case comes down to whether there was a valid appeal waiver. He claims that ?his waiver of appellate rights was involuntary and unknowing because he entered into the plea agreement unaware of the potential six-level...
Some Firefox research tips
Posted on August 25, 2008TaxProfBog points to the Res Ipsa Blog which provides a very good post cryptically entitled ?Top Twenty Firefox Add-ons that Make Firefox the Researcher?s Browser of Choice.? And, if you don?t know what a FireFox Add-on is, or Firefox is,...
Necessary cultural literacy
Posted on August 24, 2008One of the ways I was able to obtain my position is due to my massive amount of social skills. See, I have a assloads of the kind of cultural literacy that clients and employers like. One wiff of my...
CA1: extensive discussion of RICO and structural characteristics of constructive amendment
Posted on August 24, 2008US v. Brandao, No. 07-1215 (8/21/08). This case has the phrase ?acknowledging the able advocacy by defense counsel.? We all know what this means. The client is going down. To jail. Well, he was poor, and there was a split...
CA1: drug conspiracy colloquy fun
Posted on August 22, 2008US v. Pimentel, No. 07-1512 (8/21/08)holds on plain error review that a plea colloquy was okay. At the change of plea hearing, ?The district court d8etermined that Pimentel's claims of exculpatory evidence lacked credibility because he had previously admitted to...
CA1: is it a warranty provision and is it breached? (and a Bottomry book)
Posted on August 22, 2008ING Insurance SA v. Pagan-Sanchez, No. 07-1709 (8/21/08). A guy gets his boat insured. He doesn?t seem to take care of it too well, and they don?t put fire extinguishers where they should. It gets wrecked. His insurers seek a...
CA1: proving propr convictions with computerized docket entries
Posted on August 22, 2008US v. McKenzie, No. 07-1834 (8/21/08) holds that it was okay to use computerized docket (but attested an authenticated) entries, which had the effect of rendering the defendant ineligible for safety-valve relief under 18 U.S.C. § 3553(f). It then goes...
CA1: who determines whether a termination is for cause (and defamation)
Posted on August 22, 2008Noonan v. Staples, Inc., No. 07-2159 (8/21/08) affirms a grant of summary judgment to Staples. Noonan was fired. Staples says he was fired ?for cause? and therefore it doesn?t have to treat him like a man: he can?t exercise his...
CA1: abuse of process and malicious prosecution claims sort of discussed
Posted on August 22, 2008Gonzalez-Rucci v. INS, No. 07-1198 (8/21/08). Oh god this case is a mess. We got an immigration lawyer. She gets hit upon by an INS Officer, Andrés Núñez. She rejects the hitting upon. Suddenly, the INS started abusing her (e.g...
Progamming note
Posted on August 21, 2008Lots of cases. Should be able to get to them today or tomorrow. 07-2159 Noonan v. Staples (USDC MA 06-10716 Lasker, USDJ) 07-1709 LLoyd's of London et al v. Pagan-Sanchez et al (USDC PR 04-01023 Delgado-Colon, USDJ) 07-1293 USA v....
CAAFlog discussion on IAC, appellate practice, and cert. grants
Posted on August 20, 2008Amongst those that represent soldiers that lacked the social skills not the be court martialed, there is an ongoing discussion of the question of whether a refusal by defense counsel to file a cert. petition constitutes ineffective assistance. Now, in...
CA1: race-discrimination case non-starter
Posted on August 20, 2008Prescott v. Higgins, No. 07-2809. This is a race discrimination case. The disparate treatment theory ends with the fact that he couldn?t show that he was qualified for the position he sought. The disparate treatment side ends when he fails...
CA1: First steps in to help Fedex when Fedex wrongly treats employee like poor drug defendant
Posted on August 20, 2008Soto-Lebron v. Federal Express, Nos. 06-2501, 06-2519. A guy was fired by FEDEX. He claims Fedex did slandered and libeled him. He gets a jury verdict of $7 million. The District Court saves Fedex a bit, and then the First...
CA1: pro-Western Algerian has to go back
Posted on August 19, 2008Limani v. Mukasey, No. 07-2472 denies a petition for review of an Algerian with a late-filed petition. These people seem to be fairly educated and avowedly ?pro-American.? Some Muslims don?t like this. However, everyone seems to think that the general...
CA1: Selya lectures on how to write clearly
Posted on August 15, 2008Chhay v. Mukasey, No. 07-2202 denies the petition for review of an late-filed asylum petition of a Cambodian national. Most of this comes down to credibility calls. What is interesting is that the Selya tenders an extremely ironic admonishing of...
CA1: AEDPA leads to another prosecutorial misconduct green light
Posted on August 15, 2008Dagley v. Russo, No. 07-2059 is an affirmance of a habeas denial on the basis of prosecutorial misconduct in the form of prejudicial misstatements during closing arguments that didn?t get a curative instruction, thinking that a jury of non-lawyers would...
CA1: unpublished opinion pretending to discuss Fed. R. Crim. P. 41(g) statute of limitations
Posted on August 14, 2008Santiago-Lugo v. US, No. 08-1462 (unpublished) summarily affirms a District Court?s ?dismissal of his claim pursuant to Fed. R. Crim. P. 41(g) for the return of [seized, but not forfeited] property as barred by the statute of limitations.? Now, despite...
Which comment requires recusal ?
Posted on August 13, 2008Judge A: I don?t like crime. Crime is bad behavior that is destroying our cities and towns and our future. Criminals are bad people. Judge B: The government should not be bringing certain cases. Not only are they wasting the...
Poor people subject to 24-hour curfew
Posted on August 13, 2008AP reports: ELENA-WEST HELENA, Arkansas (AP) -- Officers armed with military rifles, some with laser sights, have been stopping and questioning passers-by in a neighborhood plagued by violence that's been under a 24-hour curfew for a week. Chief Fred Fielder...
CA1: Brazilian not oppressed by ANY government
Posted on August 13, 2008Lordes v. Mukasey, No. 07-1968 denies a petition for review of a Brazilian. Okay, how are Brazilians oppressed? All they do is Samba and get plastic surgery. He was a member of a union. The First rejects the idea that...
CA1: super-waiver of § 3582(a) issue at sentencing
Posted on August 13, 2008US v. Walker, No. 07-2266 holds that a defendant intentionally abandoned her objection to a sentence that considered ?her need for mental health and substance abuse treatment when determining the length of her prison sentence.? Counsel had argued that ?...
More on scienter
Posted on August 13, 2008Kevin LaCroix has an interesting (albeit late) account of New Jersey Carpenters Pension & Annuity Fund v. Biogen Idec which we covered here.
CA1: government has all the power under 3E1.1(b)
Posted on August 12, 2008US v. Beatty, No. 06-2481. While the proceedings below are pretty interesting, this comes down to a question of whether the government has discretion to move for a § 3E1.1(b) (responsibility) (as opposed to (a)) reduction for acceptance of responsibility...
CA1: law of the case and preliminary injunctions
Posted on August 12, 2008Naser Jewelers, Inc. v. City of Concord, No. 08-1305. If you were a good lawyer, you would have read the earlier opinion, 513 F.3d 27 (1st Cir. 2008), and our coverage here. As you may recall, in that decision, the...
CA1: unpreserved errors
Posted on August 11, 2008US v. Famania-Roche, No. 07-1499. This is yet another Puerto Rican drug conspiracy appeal. The evidentiary issues involve Federal Rule of Evidence 801(d)(2)(E) (co-conspirator statements) that were unpreserved. And since she the defendant doesn?t even proffer any theory that the...
CA1: OSHA was right ? they could have turned off the power lines
Posted on August 11, 2008Harry C. Crooker & v. OSHRC, No. 07-2770. This case begins when OSHA determines that a live wire is too close to a bulldozer. The construction company says that it would be infeasible to comply. But, as an evidentiary matter,...
I just got a ?hot hope injection.?
Posted on August 11, 2008Greetings from China. This week, I am partying with not only Falun Gong, the PLA, the Czech Squat-Thrust Teams, but many practitioner of Raëlism. I never knew there was so many of them. By texting ?VP? to 62262 (i.e. OBAMA),...
CA1: Indonesian Christian not oppressed
Posted on August 09, 2008Sinurat v. Mukasey, No. 07-2230 (8/8/08) denies the asylum petition of a Christian protestant. The IJ and BIA found no connection between a beating and government oppression. He says the agency ignored his argument. The First says they did not.
CA1: a further remand for time-served and parsimony issues
Posted on August 09, 2008US v. Diaz-Fontanez, No. 06-2061 (8/8/08) (unpublished). We gotta start calling these cases ?Booker Boomerangs.? Because, after being given a Booker remand, it is back. And, it is going back again. The fact that it is unpublished is somewhat disturbing...
CA1: specific intent required in ERISA retaliation claim
Posted on August 09, 2008Kouvchinov v. Parametric Technological Corporation, No. 07-2395 (8/8/08). This is an ERISA retaliation claim. The plaintiff claimed that his employer retaliated against him for using his short-term disability benefits. The claim came the day before a layoff was to take...
Programming note
Posted on August 08, 2008Still covering the Olympics. I?ve been busying partying with the hot guys and sexy gals from Falun Gong. If anyone knows how to have a good time, it is these wonderful folks. Anyway, they came in to borrow my portable...
Strange news from Maine
Posted on August 08, 2008As you know, I like 1) cellphones; 2) blind people; 3) Maine; and 4) lawyers. AP reports: PORTLAND, Maine (AP) - The chief executive officer of Maine's Iris Network faces criminal charges after flying into a rage over his daughter?s...
CA1: Romanian ex-flyboy not that oppressed
Posted on August 07, 2008Alexandrescu v. Mukasey, No. 07-2732 denies a petition for review in an asylum petition. This guy sounds interesting. He was a Romanian Air Force officer under the communists who complained that the ideological part of being a communism party member....
CA1: qualified immunity in joint-decision-making
Posted on August 07, 2008Philip v. Cronin, No. 06-1860. This case affirms a Fed. R. Civ. P. 50(a) motion for a directed verdict. Though the District Court gave a lot of reasons for directed verdict, the First says that the defendant was entitled to...
CA1: what is enough of a risk under the PSLRA to show scienter
Posted on August 07, 2008New Jersey Carpenter v. Biogen Idec Inc., No. 07-2626 affirms the dismissal of a Private Securities Litigation Reform Act of 1995 ("PSLRA"), Pub. L. No. 104-67, 109 Stat. 737 case. The underlying issue involves a drug company with a drug...
Another issue not on appeal
Posted on August 07, 2008AP reports GUANTANAMO BAY NAVAL BASE, Cuba - A military jury has sentenced Osama bin Laden's former driver to 5 1/2 years in prison for aiding terrorism, making him eligible for release in just six months. Salim Hamdan was acquitted...
Blog becomes TV show
Posted on August 07, 2008The Indefensible Guy?s Series, Raising the Bar, is coming to TNT. A lot of the archetypes seem true. Also, the previews reveal some nudity. I think they also say "ass." I like it when they say "ass" on TV. This...
Greeting from China
Posted on August 07, 2008Contrary to popular belief, it is quite easy to blog from China, despite the fact that the Chinese culture favors censorship and brutality. CNN is a bunch of amateurs.
Kozinski puts breaks via mandamus on US Attorney screwups
Posted on August 07, 2008So, some defendants are pleading guilty before a magistrate to violations of 8 U.S.C. § 1326. Then, when it comes time for the District Court to approve them, the US Attorneys say that the ?magistrate judges had erred in conducting...
CA1: no administrative tolling in 1983 actions
Posted on August 06, 2008Moran-Vega v. Cruz-Burgos, No. 07-1682. This is yet another Puerto Rican political discrimination cases. The big issue is whether the borrowed statute of limitations 42 U.S.C. 1983 are tolled by the pendency of administrative proceedings. The First rejects a ?continuing...
CA1: First says that Pho withstands Kimbrough, regardless of text
Posted on August 06, 2008US v. Russell, No. 07-1790 affirms a sentencing after multiple Booker remands. This is a Cocaine base case. Although this is a pre-guidelines-modification sentence, ?The [District] court ... concluded that it could take into account the proposed crack cocaine guideline...
More pictures of Happy Execution Bus
Posted on August 05, 2008Based on this post, I got a number of requests for more pictures of the Numner One Happy Execution Bus made by Jinguan Auto. They also make ambulances. Ambulances and Execution Busses. So, look here and here. (That url is...
Chitty on Criminal Law now on Google Books
Posted on August 04, 2008A lot of people write in asking where they can get a copy of Joseph Chitty's A Practical Treatise on Criminal Law. So, whether you are in the business of sending innocent Americans to jail, make your living getting criminals...
CA1: individualized loss determinations, Booker, and ID theft
Posted on August 04, 2008US v. Diaz-Correa, No. 06-2721 (unpublished). Now why the heck is this unpublished? This was a Booker remand in an ID theft case. Now it is back. However, it comes down to some very specific Guidelines issues. Most of which...
CA1: the DMCA the Section 553 of the CCPA and circumventing pay-per-view
Posted on August 04, 2008CoxCom, Inc. v. Chaffee, No. 07-2030. This appeal includes a rough description of how pay-per-view programming works. The Chaffees would sell a box which would essentially make it possible to get a limited amount of programming. These boxes are really...
Who will be first to liveblog an execution
Posted on August 04, 2008We liveblog trials and oral arguments. Why not an execution? Iran and the US both work to kill people with as much pageantry as possible. Iran, while utilizing a fairly secretive judicial system feels it has nothing to hide and...
CA7: Posner discusses ?substantial step,? the ?psychology of intent? and intent to have sex with an internet minor
Posted on August 04, 2008SL&P's special guest-bloggers point to US v. Gladish. For many people that practice criminal law, the scenario is sort of normal. Some guy gets on the internet and starts chatting with a cop. Only the cop claims to be a...
China v. USA regarding dogs
Posted on August 04, 2008In China, they kill dogs for food. In the USA, they shoot the mayor?s dogs in the back as part of a ?raid? to investigate a package of marijuana. A sheriff's spokesman has expressed regret over the death of the...
Welcome Insurance Coverage Law in Massachusetts
Posted on August 03, 2008A big welcome to blogosphere to the ambiguously-named ?Insurance Coverage Law in Massachusetts.?
CA1: unions v. erectors
Posted on August 01, 2008American Steel v. Local Union No. 7, No. 07-1832. Okay... labor law. Some steel ?erectors? complain that the big bad unions are conspiring to shut-non-union companies out of the erection market. The unions, it seem, subsidize the higher cost of...
Communism "explained"
Posted on August 01, 2008In celebration of our continuing live coverage of China, its culture, and human rights abuses, AL&P proudly presenst this website, which explains communism. Or something. Not really sure what the hell it does. Thanks. SomethingAwful.com
CA1: A pretty normal habeas denial
Posted on August 01, 2008Malone v. Dennehy, No. 07-1613. This is an affirmance of an IAC habeas denial. In particular, the petitioner contends that his lawyer should have subpoenaed a cop who might have discredited the victim. The state courts applied the state version...
When turning stuff over to the government isn?t a waiver
Posted on August 01, 2008Legal Ethics Forum contains a post with this language: Given the harshness of the DOJ's policy about threatening criminal charges if companies don't waive privilege, a California Court of Appeal held that turning over documents to the feds may not...
CA1: EAJA fees available for slow naturalization petition
Posted on August 01, 2008Aronov v. Chertoff, No. 07-1588. This is an Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 case. The government didn?t act on a naturalization petition. He went to court and the government and Aranov agreed that this should...
CA1: Selya destroys the writs of corum nobis and audita querela and saves the government from its negligence
Posted on August 01, 2008Trenkler v. US, No. 07-1678, 07-1679. When I started reading this case, I thought it would be an interesting discussion of corum nobis. In many jurisdictions, this writ actually is understood. But then I realized that Selya wrote it, and...
In praise of the bar exam
Posted on August 01, 2008This week, many people took the bar. Some will fail because they are not pure of heart. This week, we are blogging from China (and by China, I don't mean "Taiwan,") which is reknown for its displays of banners and...
University of North Dakota shows why it can't be taken seriously
Posted on July 31, 2008Is it just a coincidence that an entire law review is filled with silly articles that express a distaste for gay marriage? Some lawyers think it was hijacked. Tnx. HA
CA1: does everyone get Brady wrong?
Posted on July 31, 2008US v. Aviles-Colon, Nos. 05-1384, 05-2039, 05-2040. In this Puerto Rican drug distribution case, the First remands on a Brady v. Maryland, 373 U.S. 83 (1963) issue as to one defendant. A year after the trial in this case, a...
CA1: Uganda and late filing
Posted on July 30, 2008Lutaaya v. Mukasey, No. 07-2328 (7/28/08). The petitioner is a Ugandan citizen that ran a delivery business that contracted with the government to supply the troops. Sort of like Haliburton. Only, when some of the trucks were stolen by the...
CA1: Haiti getting better
Posted on July 30, 2008Michel v. Mukasey, No. 07-2166 (7/28/08) (unpublished) denies a petition for review of an asylum application. The First says that his past persecution really isn?t that relevant has Haiti is a really awesome place, but in a ?general state of...
CA1: no plea withdrawal
Posted on July 30, 2008US v. Bates, No. 07-1370 (7/28/08) (unpublished). A defendant really wants to withdraw his plea. He had the opportunity to withdraw it at the District Court. He did not. The First vacillates as to whether this is a waiver or...
CA1: A FRCP 54(b) question
Posted on July 30, 2008Niemic v. Galas, No. 07-1763 (7/28/08) (unpublished). In this prisoner-health-care litigation, the District Court directed the entry of judgment under R. 54(b). The problem is that the District Court didn't explain why there was no ?just? reason for the delay...
Back in the saddle
Posted on July 30, 2008Due to travel commitments, I was unable to blog. If all goes right, we will be liveblogging human rights abuses from China. So, back to work.
Bush approves execution of Army private
Posted on July 28, 2008For the first time in a long time, a president has approved the execution of a member of the armed forces.
CA1: unless discretion is exercised, the court can't review the discretion
Posted on July 28, 2008Beetz v. Ambrosi, No. 07-2449 (unpublished). This is ugly. The court told the plaintiff to amend his complaint to comply with FRCP 8 and 9(b). After the initial attorney withdrew, he asked for ?at least? 30 days. An electronic order...
CA1: corporate work product coming to 1st
Posted on July 28, 2008Even though I might be late on todays (mostly nonremarkable) opinions, I was holding off reporting on this, but what the hell. TaxProfBlog is reporting that: The 1st U.S. Circuit Court of Appeals has set a Sept. 5 date for...
In the fursuit of justice
Posted on July 26, 2008Dear AL&P, All you talk about is law. Why don't you get out there and do something else? Good idea. It turns out there are a lot more things out there besides law. Here are two of them: Feminists complaining...
Which rules of professional conduct are violated the most?
Posted on July 26, 2008Sure, some judges are biased, and only pretend to give the appearance of being unbiased. Other judges come right out and say that they are biased in favor of the government. Some judges are boozehounds or just plain nutty. Sure,...
CA1: no emotional damage for age discrimination
Posted on July 25, 2008Collazo v. Nicholson, No. 06-2678 (7/24/08). This is an age discrimination complaint seeking damages for mental and emotional distress against the VA. While it was booted on summary judgment, the First says affirms on an alternate ground, saying that the...
CA1: cooperating gullible convicts get what they deserve
Posted on July 25, 2008US v. Mulero-Algarin, No. 07-1701 (7/24/08). After the defendant plead guilty and was sentenced he arranged to provide the government some information. A couple of feds traveled to interview the defendant, but for some reason the interview never happened...
CA1: forfeiture in employee stock plan okay
Posted on July 25, 2008Weems v. Citigroup. No. 06-2565 (7/24/08). This is a pretty large MDL case, in which the plaintiffs claim that it is wrong for their employer to give them the option of receiving part of their salary as stock (at a...
Another one of Judge Bybee?s Torture Memos released
Posted on July 24, 2008A lot of people ask me how you become an appellate judge. The answer is to write a torture memo. Or three. If you really torture, you write even more. I note that the blue-booking is impeccable, and therefore his...
CA1: Armenian petition denied
Posted on July 24, 2008Kechichian v. Mukasey, No. 07-1584 (7/23/08) denies an asylum petition from an Armenian whose father ran afoul of the government. The IJ found no nexus between the petitioner?s woes and her father?s woes. The IJ and BIA rejected that, and...
CA1: due process issues in Bankruptcy reorganizations
Posted on July 24, 2008Arch Wireless, Inc. v. Nationwide Paging, No. 07-1611 (7/23/08). Arch went into Chapter 11. It received a discharge. Nationwide is a debtor seeking to enforce some clams against it. Nationwide claims it wasn?t given adequate notice. Arch says that Nationwide...
CA1: gender discrimination case lacks smoking gun
Posted on July 24, 2008Garcia v. Bristol Myers Squibb, No. 07-2723 (7/23/08) affirms a grant of summary judgment (first rejected by a magistrate judge) to the defendant in a gender discrimination case. The First says that the facts don?t support a disparate treatment claim,...
CA1: Logan gets to build its taxiway
Posted on July 23, 2008Winthrop, MA v. Federal Aviation Administration, No. 07-1953 rejects a challenge to an order by the FAA letting Logan Airport build a new taxiway. This seems to all come down to a question of whether the FAA properly decided not...
A pure procedural justice practice tip
Posted on July 23, 2008When making a written representation to non-lawyers that you are involved in the ?Pursuit of Justice,? be sure and proofread so that you don?t write that you are in the ?Fursuit of Justice.? Trust me on this one.
One court reverses due to unpreserved prosecutorial misconduct.
Posted on July 22, 2008As I have said a few times, I believe that the First Circuit constantly gives green light to all sorts of prosecutorial misconduct. Whenever a prosecutor reads the words ?harmless error? his natural inclination is to say, ?This means I...
But what a long 9/16ths of a second of sheer terror it was
Posted on July 21, 2008By now, you know that the Third Circuit has put the pasties on the FCC?s fine resulting from the wardrobe malfunction. The ruling is 103 pages and includes a description of all the people that have nothing better to do...
CA1: another ERISA standing case
Posted on July 21, 2008Evans v. Akers, 07-1140 (7/18/08). This is an ERISA case. I will read it in more detail later. But it comes down to this holding: hold that former employees who allege that fiduciary breaches reduced their lump-sum distribution from a...
CA1: First misses an opportunity to take vindictiveness issue seriously
Posted on July 21, 2008US v. Jenkins, No. 07-1814 (unpublished) (7/18/08) affirms a sentence. However, the raises an unpreserved issue of prosecutorial vindictiveness. ?According to Defendant, the government sought to penalize Defendant for refusing to accept a plea offer requiring Defendant to waive his...
This doesn't seem right
Posted on July 20, 2008Let me get this straight. According to this sign, if someone tows my car, I "agree" to a lien.
CA1: another crack appeal waiver
Posted on July 19, 2008US v. Chandler, No. 07-1583 (7/18/08). This is another appeal waiver case. This one is like US v. Borrero-Acevedo, No. 06-2655 (our coverage here). Anyway, the guy signed an appeal waiver at the plea, and he got a guidelines sentence...
CA1: First decides a rule of lenity case for defendant
Posted on July 19, 2008US v. Godin, No. 07-2332 (7/18/08) reverses a conviction under 18 U.S.C. § 1028A(a) which is the identity theft statute. Applying the rule of lenity, the First holds that the government must prove that the defendant knew that the documents...
CA1: no prejudice in unamended NTA
Posted on July 17, 2008Malonda v. Mukasey, No. 07-1799 (7/16/08) (unpublished) denies a petition for review of Indonesian Christians seeking asylum. Most of it involves a credibility claim. There is a due process claim, because she was ?compelled? to be a witness against herself,...
CA1: The trick to avoiding liability is not letting the officers be identified
Posted on July 17, 2008Pineda v. Watts, No. 07-2462 (7/16/08). In an arrest following a shooting some officers that were ?smart enough? (in the words of a former prosecutor I know) to not be identified roughed up the suspect. But, this case comes down...
Programming note
Posted on July 16, 2008Three opinions from our fair city today. I will get to them later. 07-2462 Pineda et al v. Toomey et al (USDC MA 05-10216 Tauro, USDJ) (false arrest/1983) 07-1635 Sompotan et al v. Mukasey (BIA A96264824) (Indonesian asylum) 07-2418 New...
Good luck on the bar exam
Posted on July 16, 2008A couple of years ago, the Happy Feminist wrote: [Regarding the bar exam] ... it's an artificial test that does not measure your worth as a human being or your legal abilities - and everybody knows it. It turns out...
CA1: the twists in an asylum denial and appeal
Posted on July 14, 2008Bakuaya v. Mukasey, Nos. 07-1667, 07-2439. In this immigration denial, the petitioner is from Togo. The petitioner changed her story many times (including once during the trial). Yet, the IJ sided with her, as human rights conditions in Togo were...
CA1: appeal waivers and synthetic marijuana
Posted on July 14, 2008US v. Pratt, No. 06-2287 concludes that an appeal following a guilty plea is barred by an appeal waiver that the defendant signed. Applying US v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001), the First says that there really...
A pet peeve
Posted on July 14, 2008A lot of lawyers are fond of saying that other lawyers are dumb or incompetent. When I do this it is based on the lawyer's written assertions that are at odds with the state of the law when claiming to...
CA1: the difference between ordinary and complete preemption
Posted on July 14, 2008Fayard v. Northeast Vehicle Services, No. 07-2222. This is a dispute between neighbors. The defendant operates a car distribution facility that apparently is quite noisy. The defendants removed to the District Court. The District Court held that removal was proper...
CA1: First undertake Corbonite maneuver
Posted on July 14, 2008Reyelt v. Danzell, No. 07-2603. This is a lawsuit of what amounts to a contract for purchase of a property gone bad. The First has kind words for the District Court, but decides to write about what it views as...
CA1: in new Russia, the government steals from you for apolitical reasons
Posted on July 11, 2008Panchenko v. Mukasey, No. 07-2032 (unpublished). While this is a denial of an asylum petition, the facts are interesting. When the Russians were communist, the petitioner graduated from college and couldn?t find a job. In America, people like that either...
CA1: government gets another chance to put someone in jail
Posted on July 11, 2008US v. Alviles-Sierra, No. 07-2066. During a trial for cocaine, ?Angelico Santiago-Rivera testified that the defendant had been asked by agents ?if he was going to take the blame for it [the cocaine], and he said yes.?? The defendant requested...
CA1: Figidity person not under arrest when in handcuffs
Posted on July 11, 2008US v. Brame, No. 07-1833 (unpublished) affirms a conviction, after uncritically reviewing a lot of cop-speak. The First concludes that a valid Terry stop occurred, and therefore the person was not really in custody when he started acting ?figidity? and...
CA1: notice probably received
Posted on July 10, 2008Shah v. Mukasey, No. 07-2001 denies a petition for review in an asylum case brought by a native of Pakistan, but a citizen of Pakistan. A deportation order was issued in absentia. He claims he wasn?t actually informed. The First...
CA1: fishing disaster ends in insurance disaster
Posted on July 10, 2008AGA Fishing Group v. Brown & Brown, Inc., No. 07-2408. This is a post-judgment insurance-coverage dispute which ends with the choice words ?AGA presents no facts evincing a duty on Defendants? part to ensure that AGA was adequately covered, we...
CA1: unpreserved Kimbrough errors are reviewed for plain error
Posted on July 10, 2008US v. Matos, No. 07-1459 holds that there was no plain error in failing to consider the unreasonableness of a guidelines crack sentence. However, post-Kimbrough v. United States, 128 S. Ct. 558 (2007), the First says that the defendant must...
CA1: Appeal waivers reviewed under plain error standard
Posted on July 10, 2008US v. Borrero-Acevedo, No. 06-2655. The First now says that plain error review applies to unpreserved claims of violations of Fed. R. Crim. P. 11(b)(1)(N) (waiving right to appeal). So, now the defendant has to show ?a reasonable probability that...
CA1: Postal age discrimination coming back
Posted on July 10, 2008Gomez-Perez v. Potter, No. 06-1614. As you know, the First first heard this case in Gómez-Pérez v. Potter, 476 F.3d 54, 56-57 (1st Cir. 2007) and we covered it here. Then the Supreme Court reversed, and held that 29 U.S.C....
CA1: Prosecutorial misconduct never a problem
Posted on July 10, 2008US v. Vazquez-Botet, Nos. 07-1205, 07-1398. This is a pretty wild political corruption case. But the issues a pretty distinct. A denial of a motion to recuse is okay based on the facts which involve the judge?s wife representing a...
CA1: CERCLA settlement fun
Posted on July 09, 2008City of Bangor v. Citizens Communications Company, Nos. 07-2193, 07-2255, 07-2759, 07-2777. This is a CERCLA case under 42 U.S.C. §§ 9607 and 9613. The District Court approved a consent decree amongst the state and private parties. The appellants are...
CA1: First explores Gall in a GVR
Posted on July 09, 2008US v. Taylor, No. 06-2216. ... Taylor was sentenced to one year in a halfway house, five years of probation, and a $10,000 fine, for aiding and assisting in the preparation of false tax returns, in violation of 26 U.S.C....
CA1: jury contamination by judge
Posted on July 07, 2008US v. Ofray-Campos, et. al, Nos. 05-1461, 05-1462, 05-2315, 05-2627, 06-1005 is one of many Puerto Rican drug cases. There are a few interesting issues there, which I will get to later. These include: 1) jury notes; 2) jury contamination...
CA1: First continues to bend on DNA collection
Posted on July 07, 2008US v. Soto, No. No. 07-1245, 07-1250 reverses the District Court?s decision which held that ?requiring DNA collection from non-violent felons who are sentenced to probation violates the Fourth Amendment.? After the District Court entered its decision, the First decided...
CA1: 26(b)(1) fight over non-parties and Hinduism
Posted on July 07, 2008In Re: Subpoena to Michael Witzel, No. 07-2286. This is an appeal of a denial of a motion to compel enforcement of a California subpoena of a non-party. It is affirmed. ? The only documents in dispute for purposes of...
CA1: Hatian petitioner denied
Posted on July 02, 2008Tropnas v. Gonzales, No. 06-2784 denies a petition of an artist and political dissident from Haiti. The First says that the denial was okay, because nine years passed since the harassment and threatening occurred and any recent misfortunes were not...
CA1: Summary affirmance issue shelved
Posted on July 02, 2008Loyo-Arevalo v. Mukasey, No. 07-2054 (unpublished) denies the petition for review of a Guatemalan. The First says that it ?carefully? considered it. He claims that his political affiliations subjected him to some harassment. The agency says that he failed to...
CA1: no habeas in dual-theory case
Posted on July 02, 2008Leftwich v. Maloney, No. 06-2583. In this habeas case, Selya makes one thing clear: he knows how to use big words to keep the damned damned. He says there is one issue, ?Was the evidence sufficient, in terms of the...
CA1: asset purchase agreement saves hospital
Posted on July 02, 2008Rodriguez-Rivera v. Federico Trilla Regional Hospital of Carolina, No. 07-1565 affirms a grant of summary judgment in a medical malpractice case. However, none of the legal issues have to do with medical malpractice. Instead, it comes down to an asset...
CA1: First says Gall doesn?t change much.
Posted on July 02, 2008US v. Smith, No. 07-1684. The defendant appeals a sentence for reasonableness, and argues ?...accuses the district court of paying lip service to the advisory nature of the guidelines while treating the GSR as presumptively reasonable.? The District Judge first...
CA1: More briefing in Denmark v. Liberty Life
Posted on July 02, 2008Denmark v. Liberty Life, No. 05-2877. The First dismisses a petition for rehearing en banc as moot, because the Supreme Court in MetLife v. Glenn, No. 06-923 (June 19, 2008), seems to have rejected the First?s view on standards of...
How I help YOU read this blog
Posted on July 01, 2008Because I just got caught up on a bunch of posts, I figured I should make reading my blog easier for you ? the hopelessly lazy reader. So, without further ado, here are important issues covered in the past couple...
CA1: cut and paste brief goes nowhere
Posted on July 01, 2008Rusli v. Gonzales, No. 06-1941 (6/27/08) (unpublished) summarily denies a petition for review by Indonesian Christian. It begins with this line: The brief filed by petitioners' counsel, Yan Wang, is a "cut and paste" affair that appears to present the...
CA1: Gertner affirmed
Posted on July 01, 2008US v. Taba, No. 06-2584 (6/27/08) (unpublished) grants the government?s motion for summary disposition after Judge Gertner, following a bench trial, entered a conviction for ?conspiracy to distribute cocaine.? Strange. Didn?t the folks on the other blog swear that she...
CA1: Arbitration award vacated
Posted on July 01, 2008Kashner Davidson v. Mscisz, No. 07-1231 (6/27/08). Want to see what a vacation of an arbitration looks like? Look here. The arbitration panel flip-flopped on whether its dismissal of counterclaims was a sanction or on the merits. The First points...
CA1: Pakistani late and not oppressed
Posted on July 01, 2008Jamal v. Gonzales, No. 07-1599 (6/27/08) is an asylum and CAT denial. The petitioner is from Pakistan who opposed Musharraf. He was beat up. The IJ said that things in Pakistan were now better because his wife and kids were...
CA1: SDO says that monitored attorney-client calls can be admitted if only Fourth Amendment challenge made
Posted on July 01, 2008US v. Novak, No. 07-1826 (6/30/08). Retired Justice O'Connor holds that where an incarcerated defendant consents to monitoring (even though they were in violation of state and federal regulations), a Fourth Amendment challenge will fail. Now, if he had made...
CA1: SDO declines to extend 1985 to political affiliation
Posted on July 01, 2008Perez-Sanchez v. Public Building Authority, No. 07-1869 (6/30/08). Justice O?Connor gets to write on political discrimination. This plaintiff claims that he was generally harassed and made miserable in the wake of a shift in Puerto Rican politics. He served the...
CA1: lessees lack standing to sue manufacturers
Posted on July 01, 2008In Re: New Motor Vehicles Canadian Export Antitrust Litigation, No. 07-1990 (6/30/08) affirms the dismissal of suit under Section 4 of the Clayton Act brought by lessees of new cars, who argued that the defendants ?conspired to restrict the flow...
CA1: First writes preachy opinion on drinking and driving in ERISA context
Posted on June 30, 2008Stamp v. Metropolitan Life, No. 07-1061. This case is one of a line of disturbing cases that hold that people that die in drunk driving accidents for purposes of his Accidental Death and Dismemberment ("AD&D") life insurance policies. The First...
CA1: Unaccredited law school wins against own students using lawyers from accredited law school
Posted on June 30, 2008Rodi v. Southern New England Law School, No. 07-1770. The earlier opinion is here, and our coverage is here. A related case is here. Take it from me. Despite lawyer?s protestations about how the ABA?s accrediting regime is unfair or...
CA1: when is it too late to be truthful ?
Posted on June 30, 2008US v. Rodriguez-Ferreira, No. 06-2176 affirms a sentence of a guy that argues that he was entitled to a safety valve reduction under U.S.S.G. § 5C1.2(a). It all comes down to whether he truthfully provides the government with the 411...
Justice O?Conner writes on ERISA
Posted on June 30, 2008McGill v. Minnesota Mutual, No. 07-2668 (unpublished). In this ERISA case, the plaintiff argues that the actual policy differed from the policy he applied for, and therefore they were guilty of fraud and misrepresentation, and a breach of a fiduciary...
CA1: Justice O?Conner writes opinion on wiretap act
Posted on June 30, 2008US v. Conley, No. 07-2587 (6/26/08). This opinion is written by Justice O?Conner (retired). It begins, ?Appellant claims the introduction into evidence of phone calls between him and Kenneth Durgin, an inmate in a correctional facility, violated the Federal Wiretap...
CA1: District Court did okay in calculating loss amount
Posted on June 30, 2008US v. Stoupis, No. 07-1410 (6/26/08). This is an ?amount of loss? sentencing appeal. Here are the facts: Because his job at the computer help desk gave him access to Hanscom Air Force Base's information technology systems, Stoupis was able...
CA1: typical defendant v. lawyer mess
Posted on June 30, 2008USA v. Hicks, No. 06-2731 (6/26/08) The defendant wants to withdraw his guilty plea. The First has to figure out how to prevent him from doing this. What is strange about this is that the defendant is complaining his lawyer...
Catching up.
Posted on June 30, 2008We will begin the process of catching up with Thursday and Friday?s opinions today. I know this makes me a bad lawyer, because it is one's sacred duty to read every opinion as they are released. People that fail to...
Supreme Court Rules Death Penalty Is 'Totally Badass'
Posted on June 24, 2008Whether you really think it is cool that the state gets to kill people or not, this ruling is very important.
CA1: 85 pages of RICO
Posted on June 23, 2008US v. DeCologero, Nos. 06-1274, 06-2390, 06-2391, 06-2392, 06-2569, 07-1086 is a very big RICO affirmance, which I will get to later.
On George Carlin:
Posted on June 23, 2008CNN reports that Carlin was born on May 12, 1937, in New York. He dropped out of high school in the ninth grade and joined the Air Force, where his misfit ways continued -- he received three courts-martial and several...
CA1: no cancellation of removal for possession of small amounts of pot
Posted on June 23, 2008Julce v. Mukasey, No. 07-2362 (6/20/08). The First lays out the issue like so: The petitioner raises a new question for this court involving the interplay between the immigration law's definition of aggravated felons, who are ineligible for cancellation of...
CA1: First Circuit expounds on discovery rule
Posted on June 23, 2008Warren Freedenfeld Associates v. Michael P. McTigue et al., 07-1602 & 07-1603 (6/20/08). This comes down to a question of when a statute of limitations in copyright infringement cases begins to run. The underlying facts revolve around a business dispute...
CA1: Alien smuggling case has something for everyone
Posted on June 23, 2008USA v. Hilario-Hilario et al, Nos. No. 06-1007, 06-1009, 06-1010, 06-1011, 06-1013 (6/20/08). This is an alien smuggling case. The tone of the opinion seems to indicate that at least one judge on the First thinks that the government did...
Programming note
Posted on June 20, 2008Three opinions from the First, which I will get to this weekend 06-1007, 06-1009, 06-1010, 06-1011, & 06-1013 USA v. Hilario-Hilario et al (USDC PR 04-00405 Garcia Gregory, USDJ) (alien smuggling and sentencing) 07-1602 & 07-1603, Warren Freedenfeld Associates v...
NDAA: No presumption of innocence if prosecutor presents any evidence
Posted on June 20, 2008The National District Attorneys Association seems to be particularly riled up about judges prohibiting the use of certain conclusory legal terms in testimony. Tresa Baldas of the National Law Journal gives them a platform to peddle their silly political lines...
CA1: Circuit split on comparable grounds
Posted on June 18, 2008Gonzalez-Mesias v. Mukasey, No. 07-2346. This is an immigration case on a fairly narrow question of law. This issue comes down to whether sodomy in Virginia, under Va. Code § 18.2-67.1 is a crime of violence. In the Second Circuit,...
CA1: Journalists prevail on Fourth (but not First) Amendment claims
Posted on June 18, 2008Asociacion de Period v. Mueller, No. 07-2196. At long last, the First issues an opinion in a big First Amendment case. Essentially some FBI agents were not too happy about press coverage of some raid they were conducting, and allegedly...
CA1: ERISA preemption and removal ? a very sexy dance
Posted on June 18, 2008Negron-Fuentes v. UPS SCS, No. 07-2463. This is a sad, but fun case. The plaintiff took short term disability leave from UPS to be treated for a brain tumor. When he visited UPS, as he was recovering, the folks there...
CA1: Duck trademark fight leaves several annoyed
Posted on June 18, 2008Boston Duck Tours v. Super Duck Tours, 07-2078. Did I mention that Intellectual Property is the one field of law I have no patience for. It is all so sill and the people that practice it think that they are...
Second Circuit en banc fight
Posted on June 17, 2008Wait a Second contains an interesting post about ?a catfight over whether to hear a case en banc? in the Second Circuit. You should already be aware of this. ... and in the ?Stupid Law School Tricks? category, Legal Blog...
CA1: Indonesian not really that oppressed
Posted on June 17, 2008Sombah v. Mukasey, No. 07-1481 denies a petition for review of a asylum/CAT claim of an Indonesian Christian. (The CAT claims are waived.) The IJ said that the harassment was a ?private? matter, and the BIA concluded that they were...
CA1: not quite telling the truth about working for Walmart
Posted on June 17, 2008US v. Riccio, No. 07-2604. The defendant working for the TSA, and needed a security clearance. He filled out a SF-86. But, it turns out he neglected to state on it that he had worked at Walmart before (understandable, since...
David Iglesias (one of the fired US Attorneys) on the Daily Show
Posted on June 17, 2008Hypes his book here. Quite interesting and blunt.
CA1: false start on law of bankruptcy intervention in professional malpractice cases
Posted on June 16, 2008Costa v. Notinger, No. 07-1898 (unpublished). This is a great bankruptcy procedure case that seems to be buried. This case began as a Chapter 11 bankruptcy case. The debtors hired Marotta Gund Budd & Dzera, LLC (a ?crisis management firm?)....
Open letter to Mr. R. Kelly
Posted on June 14, 2008Dear Mr. Kelly: By the way, can I call you ?R?? Sort of like a Pirate. You know, ?Arrghh.. "? That sounds much cooler. Anyway, I am glad that things worked out for you in your trial. It was touch...
CA1: nothing wrong with rejecting a guilty plea or showing the indictment
Posted on June 13, 2008US v. Skerret-Ortega, No. 06-1126. The defendant, in this case, argues that his attempts to plead guilty were improperly rejected. The First says that because the District Court didn?t really have the facts necessary to support a conviction, and his....
CA1: Fratboys win IIED lawsuit
Posted on June 13, 2008Fiacco v. Sigma Alpha Epsilon Fraternity, No. 07-1695. The plaintiff in this case worked for the University of Maine in charge of the ?Office of Community Standards.? He was investigating this frat. The frat decided to investigate him back, and...
CA1: No minimum contacts in eye doctor case
Posted on June 12, 2008Phillips v. Prairie Eye Center, No. 07-2469 holds that the defendant didn?t have minimum contacts with Massachusetts to support specific jurisdiction. The First rejects the idea that because the plaintiff (a person claiming breach of an employment contract) received some...
CA1: A Terry stop of a parked car and slumped passenger
Posted on June 12, 2008US v. Ruidiaz, No. 07-1988. This is a felon-in-possession case, but it is really an appeal of a suppression motion. After a shooting and an ?anonymous? 911 call (the caller said that the cops could call back), officers found the...
I support Kozinski
Posted on June 12, 2008I don?t know how much my support means, but here is why I support the Ezrider. First of all, there is no indication that any of his internet activities (i.e. the images) were illegal, at least as far as normal...
CA1: another Indonesia Christian not oppressed
Posted on June 11, 2008Santosa v. Mukasey, No. 07-2016. This opinion denies the asylum petition of another Indonesia Christian. This one with Chinese ancestry. The First says that he really didn?t establish persecution. A due process claim is rejected.
CA1: Indonesian Christian not oppressed
Posted on June 11, 2008Kamuh v. MuKasey, No. 07-1639 (unpublished) denies a petition for review of an asylum petition. The petitioner is an Seventh Day Adventist from Indonesia. Most of the incidents that the petitioner pointed to establish persecution seemed to involve private citizens,...
CA1: An interesting Kimbrough remand
Posted on June 11, 2008US v. Boardman, No. 07-1030 vacates a sentence for conspiracy to distribute heroin under 21 U.S.C. § 846 (2000) which was enhanced because of two burglaries. The District Court held that under United States v. Fiore, 983 F.2d 1 (1st...
CA1: Anders on supervised release
Posted on June 11, 2008US v. Carrera-Gonzalez, No. 07-2141 (unpublished). This is an Anders brief-type appeal of revocation of supervised release. The defendant seems to have argued that there was an agreement as to a specific sentence that wasn?t there.
CA1: Marriage fraud conviction affirmed
Posted on June 11, 2008US v. Karim, No. 07-1210 (unpublished) affirms a conviction for conspiracy to commit marriage fraud, in violation of 18 U.S.C. § 371 over a sufficiency challenge. The facts are strange, but it seems like the defendant got an ex-girlfriend to...
CA1: Oprah wins
Posted on June 11, 2008Tracy v. Winfrey, No. 07-1630 (unpublished). Okay, someone sued Oprah for copyright infringement. I don?t really know the facts, but there seems to be a claim that Oprah didn?t return some material. The court dismissed on a 12(b)(6). Then Tracy...
Kozinski presiding over ?obscenity? prosecution
Posted on June 11, 2008As most of you know, the DOJ?s biggest problem is too much money and not enough places to put it. Apparently, they store their budget in a large Rubbermaid tub filled with cash. This used to be a good idea,...
More people climb aboard the prosecutorial silliness train
Posted on June 11, 2008CrimProfBlog points to a story in which prosecutors are whining about how there is a ?trend? of judges not letting ?victims? say the word ?rape.? I tried to comment, but it wasn?t deemed worthy. Unfortunately, when they get in front...
CA1: at sentencing, pro se brief picks up obvious error
Posted on June 10, 2008US v. Garcia-Ortiz, No. 06-1923. Wow. ?José A. García-Ortiz ("García") was convicted of intentionally obstructing and delaying commerce by robbery, armed robbery, and first degree murder under 18 U.S.C. §§ 2, 1951(b) (Hobbs Act), 924(c)(1), and 924(j)...
CA1: a fun insurance coverage case ending in certification
Posted on June 10, 2008Boston Gas Company v. Century Indemnity, No. 07-1452. Certification order. This is a really fun insurance coverage case. I don?t really have time to go into details, but take a look. Before getting to the fun insurance stuff, let?s talk...
Connecticut Supreme Court makes news
Posted on June 09, 2008In the Onion. Connecticut, at the moment, has a statutory form of "civil union." There is a pending case, Kerrigan and Mock v. Department of Public Health, regarding whether equal protection requires an identical form of "marriage."
CA1: First bends to approve ?Don?t Ask; Don?t tell? on First Amendment Grounds
Posted on June 09, 2008Cook v. Gates, Nos. 06-2313, 06-2381. The First seems to have gone though both facial and as-applied challenges, and ultimately deferred to the government. There was a dissent. So, maybe this will go en banc. Unlike the Ninth Circuit?s Opinion,...
A PR political discrimination suit to come later
Posted on June 05, 2008Negron-Almeda, et al v. PR Trade and Export. Nos. 07-2013, 07-2140. This was a Puerto Rican political discrimination suit. The plaintiff won. The District Court granted reinstatement and backpay and didn?t let the agency intervene (as of right) because it...
CA1: ADA case less interesting than thought
Posted on June 05, 2008R.-Z. v. Commonwealth of PR, No. 07-2025. While this claim was filed under the ADA, the Rehabilitation Act, and 1983, it comes down to a suit against the state employed a teacher that sexually abused a child with cerebral palsy....
CA1: ethics and medical devices and conflicts of prejudment interest
Posted on June 05, 2008Jasty v. Wright Medical, Nos. 07-1743, 07-1744. The plaintiff was a doctor and a ?consultant? to a medical device manufacturer. He makes more than most lay people that prattle on about tort reform makes. It seems that he was sort...
CA1: strange case on double-counting of non-remorse
Posted on June 04, 2008US v. Cruzado-Laureano, No. 06-1815. This is the defendant?s third appeal. The First two were successful. See United States v. Cruzado-Laureano, 440 F.3d 44, 45 (1st Cir. 2006) (our coverage here); and United States v. Cruzado-Laureano, 404 F.3d 470, 473-79...
CA1: Selya surprises and says that fast-track progarms can be considered Post-Gall
Posted on June 04, 2008US v. Rodriguez , No. 06-2656. This case is by Selya. The appeal involves whether post-Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) the First?s holding that sentencing disparities...
CA1: One of the worst cases ever on the petition clause
Posted on June 04, 2008Rosado-Quinones v. Toledo, No. 07-1425. A cop brought a 1983 suit alleging that he was discriminated against on First Amendment grounds after suing the police in a local court. I guess the underlying lawsuit is interesting: this cop was arrested...
CA1: another age discrimination claim fails
Posted on June 04, 2008Arroyo-Audifred v. Verizon Wireless, No. 07-1661 affirms a grant of summary judgment in an age discrimination case. Some claims are resolved on statute of limitations grounds, and some are resolved because the plaintiff messed up the summary judgment procedure...
Nothing from the First on National Insult Day
Posted on June 04, 2008Just a post to let you know that nothing happened in the First Circuit over the past few days. Therefore, this proves beyond a doubt that "temp" lawyers and "contract" lawyers are better workers than anyone nominated by the president...
Selya on Blogging
Posted on May 27, 2008The Boston Globe reports that US District Court Judge Nancy Gertner has been a contributor to Slate. Judge Selya, who is known for his constant use of big words in cases that send poor people to jail says this: I...
CA1: affirmance for failure to follow local rules on summary judgment
Posted on May 27, 2008Sanchez-Figueroa v. Banco Popular, No. 07-1013. This appeal of an ADA case seems to really be affirming summary judgment for failure to comply with Puerto Rico?s Local Rule 10(b) (translation of exhibits from Spanish to English); and having a counter-statement...
What does it look like when I blog
Posted on May 26, 2008Some people have what it looks like when I blog.* Just for fun, here is a screenshot. As you can see, I use only the hippest open-source systems and software. However, since I am a lawyer I will deny all...
CA1: First tees up retroactivity issue
Posted on May 23, 2008US v. Joseph, No. 04-1477 (unpublished). This is a fairly interesting ?crack guidelines? issue. The defendant was sentenced before Booker. While the First rejects his Booker issue and affirms the sentence, the First remands so that he can move for...
CA1: almost no relief on ?role-in-the-offense? determinations
Posted on May 23, 2008US v. Rodriguez-Guerrero, No. 07-1256 (unpublished). The First makes it clear that ?Role-in-the-offense determinations typically are factbound and, therefore, we will reverse the denial of minimal participant status only for clear error.... ? therefore ?Our standard of review is not...
CA1: No under Fed. R. Crim. P. 35 relief for providing assistance
Posted on May 23, 2008US v. Ellis, No. 07-1997. A guy serving a 25-year sentence who claims to have provided assistance to a ?warden of the federal prison where he was once incarcerated? moved under Fed. R. Crim. P. 35 to shorten his sentence....
CA1: A reported judgment in a kosher habeas case where claim is mooted
Posted on May 23, 2008Guzzi v. Thompson, No. 07-1537. This judgment was dated on the 14th, but wasn't made public, it seems. Since the parties agree that the decision should be dismissed as moot because the state stopped doing what it was doing (not...
Not that big a deal
Posted on May 23, 2008For some reason, the Boston Business Journal thinks that it is notable that Judge Sandra Lynch is going to become the first lady chief judge of the First Circuit. Now, come on, of all the milestones of feminism, is this...
CA1: remand to the IJ because he didn?t explain
Posted on May 22, 2008Sok v. Mukasey, No. 07-2113 remands back to the IJ on a withholding of removal claims because ?the BIA and IJ gave a legally insufficient explanation of why Sok failed to prove that she suffered past persecution in Cambodia, we...
CA1: no double-counting in identity-theft sentencing
Posted on May 22, 2008US v. Sharapka, No. 06-2715. This is an appeal sentence for 121 month sentence for identity theft. The First says that the enhancement for ?more than 10 but fewer than 50 ?victims?? was okay, despite the fact that the defendant...
CA1: suing non-parties to arbitration agreement, doesn?t get around mandatory arbitration
Posted on May 22, 2008Sourcing Unlimited v. Asimco International, No. 07-2754 holds that a corporate signatory to a written partnership agreement that requires international arbitration of their commercial disputes may not escape arbitration of such disputes by naming as defendants two non-signatories, on the...
CA1: Columbian petition denied
Posted on May 21, 2008Restrepo Ruiz v. Mukasey, No. 07-1783. This is an asylum and political persecution case. The petitioner is a Columbian who was anti-FARC and a member of Columbia?s conservative party. FARC seems to have done some bad things. However, Selya says...
CA1: Qualified immunity for political discrimination
Posted on May 21, 2008Lopez-Quinones v. Puerto Rico National Guard, No. 07-1976. Going off my handwritten notes here, this is a qualified immunity in political discrimination case (and the dissent by Torruella, points out that the First Circuit leads the nation in political discrimination...
CA1: Photographic exploitation of a minor with a twist: the federalization of sex.
Posted on May 20, 2008US v. Ortiz-Graulau, No. 06-1768. The First Affirms a conviction under 18 U.S.C. § 2251(a) (?exploiting a minor for the purpose of producing the photographs.?) There was a guilty plea to a 18 U.S.C. § 2252(a)(4)(B) (2000) (?exploiting a minor...
Start your Monday with the remix of O'Reilly
Posted on May 19, 2008Hey? rarefied appellate practitioners?. Start your Monday with the Bill O?Reilly Flipping Out dance remix.
CA1: arbitration award affirmed
Posted on May 15, 2008UMass Memorial v. United Food and Commercial Workers Union, Nos. 07-2527; 07-2528. The hospital lost an arbitration (against the union). The hospital went to the District Court, seeking to vacate the award. This seems to be a dispute about whether...
CA1: PURPA case barred by SOL (and Steel Co issue)
Posted on May 15, 2008Greenwood v. NH Public Utilities, No. 07-2322. This case begins with ?This case was brought by the owner of a small renewable hydroelectricity producing company.? So, he loses. Before getting to the energy nerdery, the First has to explain how...
CA1: plea was valid and entrapment fails
Posted on May 15, 2008US v. Otero, No. 07-1555 holds that in a ?Rule 11" (i.e. a change of plea) proceeding, a defendant was ?aware of the intent element of the drug-trafficking offense? even though the judge didn?t read it out loud. He raises...
CA1: SEC wins something
Posted on May 15, 2008Duggan v. SEC, No. 07-2494 (unpublished). I think this is a FOIA request. The opinion reads, in relevant part ?The Securities and Exchange Commission made an adequate showing at summary judgment that it had conducted a search that was reasonably...
Let the blabber start on the Marriage cases
Posted on May 15, 2008This blog is for ethical lawyers only. As an ethical lawyer, you will have already read In re Marriage Cases (if you did not, you are not ethical). If you have not read that case, then you are not an...
Blackmail and extortion
Posted on May 14, 2008C&F questions why either of these things can or should be crimes. I agree. Why can?t people offer to not exercise a First Amendment right for cash? Hell, most of us agree to waive constitutional rights in exchange for compensation...
CA1: a strange 1983 statute of limitations problem
Posted on May 13, 2008Cao v. Commonwealth of PR, No. 07-1394. This is a 1983 case brought by a an ?an elderly resident [who was] was removed from her home, made to undergo a psychological evaluation, and placed in a substitute home and, later,...
CA1: guilty plea prevents collateral attack on deportation order
Posted on May 13, 2008US v. Vargas, No. 07-2536 (unpublished). A defendant plead guilty to ?illegal re-entry? even though he said that he wanted to contest the due process in the underlying deportation order, but the First says that the guilty plea operates as...
CA1: consecutive sentences, brandishing, and all that
Posted on May 13, 2008US v. Feliciano-Rodriguez, No. 06-2719. This is a drug conspiracy appeal. Pretty exciting facts... including someone in the witness protection program. The government seems to concede a lot on appeal, essentially saying that the District Court judge went too far...
CA1: closing the courtroom is okay during contempt proceeding, as are some redactions
Posted on May 13, 2008US v. Bucci, Nos. 06-2746, 07-1087. The facts of this case go on and on, but it essentially comes down to dirty-cops-turned-drug dealers. The really big issue is the ?courtroom closure? issue. ?Bucci argues that the district court erred by...
CA1: even though some people like naturopaths, it is still a fraud
Posted on May 12, 2008US v. Curran, No. 06-2647. The defendant was not a doctor. But he only had training in naturopathy. He would tell people that they were very sick and take their money. Eventually he was charged with fraud, and he appeals...
CA1: home confinement as a condition of supervised release
Posted on May 12, 2008US v. Marcano, No. 07-1050 holds on plain error review that supervised release can include ?home confinement? where the period of supervised release was less than the statutory maximum term of imprisonment of two years.
GTMO unlawful command influence ruling in Hamdan
Posted on May 11, 2008On Friday one of the military ?judges? issues a 13-page ruling booting the ?legal advisor? to the Convening Authority. (It pretty much vindicates the convening authority, herself, ex-CAAF judge, Susan Crawford.) I am not going to say that this indicates...
CA2: Wu-Tang Clan describes law students and drug dealers
Posted on May 09, 2008What do law students and drug dealers have in common? They both subscribe to the Wu-Tang Clan?s philosophy described in the Second Circuit?s decision in U.S. v. Dent. There, the court wrote that: "Cream Team" is an acronym for "cash...
Sunny Hostin?s normal failures to research
Posted on May 09, 2008Sunny Hostin (an former prosecutor turned ?commentator?) once again writes some ?commentary? on CNN that, well, is stupid. This time she complains about ?pro se? defendants. She begins by talking about criminal proceedings governed by the sixth amendment, but ends...
CA1: two unpublished Chinese immigration decisions
Posted on May 08, 2008In honor of the Olympics, I give you two unpublished decisions holding that Chinese people didn't prove that they were oppressed enough. Huang v. Mukasey, No. 07-1484 (unpublished). Petitioner is Chinese. He says he believes in Democracy. His claims fail...
CA1: Apprendi pipeline case sees briefly sees light in IAAC context
Posted on May 08, 2008Martinez-Medina v. US, No. 06-1594 (unpublished). This affirms a denial of a motion to vacate a sentence under 28 U.S.C. § 2255. The grounds asserted are whether, in an ?Apprendi Pipeline? case, the defendant was given ineffective assistance of counsel...
CA1: dealing with a strained reading of claimed exemptions from a bankruptcy estate
Posted on May 07, 2008In re Barroso-Herrans v. Lugo Mender, No. 07-1757. This is actually a fairly interesting theoretical issue. Government contractors got into a dispute with the commonwealth of Puerto Rico. Then didn?t get paid. So, the contractors sued the commonwealth and simultaneously...
CA1: First remands for a real resentencing when mandate not followed
Posted on May 07, 2008US v. Pena-Gonzalez, No. 05-1402. This case was first before the court in United States v. Rodríguez-Marrero, 390 F.3d 1, 32 (1st Cir. 2004) when it remanded for re-sentencing. The District Court didn?t hold a sentencing hearing, and instead it...
CA1: transporting a minor is a crime of violence even post Begay
Posted on May 07, 2008US v. Williams, No. 07-1354 holds that interstate transport of a minor for prostitution in violation of 18 U.S.C. § 2423(a) is a ?crime of violence? within the purview of the career offender provision of the federal sentencing guidelines, i.e....
Waking up after 30 years and wanting to know about the constitution
Posted on May 07, 2008Norm Pattis has a beautiful story here about speaking to a friend that has been in a coma for 30 years, and wakes up wanting to know about the constitution.
CA1: mea culpa on ?cache? case
Posted on May 02, 2008Commentator ?zephaniah? has read US v. Morales Aldahondo, No. 06-2533 (our coverage here), and convinced me to a 90% probability (enough to send someone to jail) that I was wrong. (Despite claiming to use words precisely, the First employed a...
CA1: all the crimes involved in using a stolen social security card to get public housing
Posted on April 30, 2008US v. Hererra-Martinez, No. 07-1363. An undocumented immigrant got low income housing using someone else?s ID card. She was charged with: use of another's Social Security number, 42 U.S.C. § 408(a)(7)(B) knowingly converting public money or property, 18 U...
CA1: race discrimination case affirmed
Posted on April 30, 2008Holloway v. Thompson Island, No. 07-2207 affirms a grant of summary judgment in a race discrimination case because the defendants came up with a non-discriminatory motive. The issue was somewhat complicated by the fact that he had a previous settlement...
CA1: what hath Gall wrought
Posted on April 30, 2008US v. Tom, No. 07-1074 (unpublished). What do you do when the government says that a sentence for insider trading is too lenient, but the Supremes GVR in light of Gall? First you ask for briefing, and then: remand the...
CA1: accrual of warranty claims under the UCC
Posted on April 30, 2008Trans-Spec Truck Ser v. Caterpillar Inc., No. 07-1476. This is a long case, which comes down to ?the accrual and statute of limitations provisions of the Uniform Commercial Code of Massachusetts to breach of warranty claims.? Mass. Gen. Laws ch....
CA1: whistleblower case goes nowhere
Posted on April 30, 2008Lupu v. El Conquistador, No. 07-1659 is a diversity action under Puerto Rico?s whistleblower statute. On the facts, it seems that the employer had a good enough reason to get rid of him from his probationary job. The First is...
CA1: A lesson in 1988 attorneys fees
Posted on April 30, 2008Torres-Rivera v. Espada-Cruz, No. 07-1806. This is another case dealing with how to determine attorneys fees under 42 USC 1988. The plaintiffs take this appeal because they argue that they were not awarded enough. The First sides with the plaintiffs....
CA1: Selya talks about discrimination and prosecution
Posted on April 29, 2008Pulisir v. Keisler, No. 07-1356 denies the petition for review of a Protestant Indonesian. He was absent from Indonesia for a large portion of the time. The only issue on appeal with withholding of removal. But, despite those waivers he...
CA1: reselling prescription drugs causes loss
Posted on April 29, 2008US v. Marti-Lon, No. 07-1040. This is an unlawful distribution of prescription drugs case. Essentially this shows how screwed up our prescription drug market is. ?The drug wholesalers then sold the drugs to Martí-Lón at a lower cost because Martí-Lón...
CA1: at sentencing, restitution amounts are different than intended loss amounts
Posted on April 29, 2008US v. Innarelli, No. 06-2400. After pleading guilty to a ?land-flipping? scheme (which seems to be more like a mortgage scheme) that was perpetrated by, amongst other people, a lawyer. But, the First clarifies some areas of the guidelines that...
Who owns the truth?
Posted on April 29, 2008A Public Defender once again points to Western Justice, whom he accuses of being a hollier-than-thou prosecutor that just doesn?t get it. (See also Simple Justice's post). There are some prosecutors that can smell BS. There are some that can?t....
More on laptop border searches
Posted on April 29, 2008The Ninth Circuit Blog shows all the problems in United States v. Arnold __ F.3d __, 2008 WL 1776525 (9th Cir. April 21, 2008), which we covered here. In short, this holds that not even reasonable suspicion is required for...
CA1: Columbian asylum claim fails
Posted on April 28, 2008Vallejo Piedrahita v. Mukasey, No. 07-1850 denies a petition for review of a Columbian that might have been persecuted by the FARC. The First says that most of the issues were waived in the opening brief, and the IJ?s Decision...
CA1: another false statements to gun dealers case
Posted on April 28, 2008US v. Whitney, No. 07-1934. This is another 18 U.S.C. § 922(a)(6) (false statement to a gun dealer) case. The big question is whether the jury was properly instructed on the ?willfulness? element. In this case, the defendant was not...
CA1: railroaded jailhouse lawyer can sue where he was railroaded to
Posted on April 28, 2008Hannon v. Beard, No. 07-2272. This is a piece of prisoner litigation. But it is not an easy one. Let?s see if we can lay out the figures. Mr. Hannon (?the quintessential jailhouse lawyer?) was convicted of a crime in...
Hoston's oversimplifications are misleading
Posted on April 26, 2008CNN has a "Commentary" piece by Sunny Hoston, whom Wikipedia tells me went to Notre Dame, was a beauty queen, and then clerked for Chief Judge Robert Bell of the Maryland Court of Appeals. Wikipedia's article (seemingly written by a...
911 call of the week
Posted on April 25, 2008Dear AL&P: What does it sound like when a cop takes pot from suspects and puts it into brownies, then thinks he ?overdosed? on pot and calls 911? Signed, Wondering in Washington Dear WW: Glad you asked. Click here. (Tnx...
The affordable cost of appellate advocacy
Posted on April 25, 2008Washington Post details how much Larry Craig has paid to some firm called Sutherland Asbill & Brennan to not have his guilty plea set aside. It is unclear whether the failure of Sutherland Asbill & Brennan make their client?s legal...
CA1: deputies sue sheriff under 1983 and win
Posted on April 24, 2008Davignon v. Hodgson, No. 06-1191. This is a 1983 action ? by union corrections officers claiming that the First Amendment rights were violated ? against the sheriff. At trial, the officers won a small victory. The sheriff appealed. The most...
CA1: A cache problem
Posted on April 24, 2008US v. Morales Aldahondo, No. 06-2533. In a child pr0n case, the First hold that a Franks hearing regarding the staleness (three years) of material obtained reached an acceptable conclusion. There is a little problem with the Court?s logic. Look...
CA1: arbitration confirmed
Posted on April 24, 2008Ramos-Santiago v. United Parcel Service, No. 07-1024. This is an arbitration appeal of a UPS driver that didn?t deliver some packages. You know where this is going. He claims that the arbitration award can?t be enforced, because the arbitrator pointed...
CA1: IJ gets credibility determinations wrong, BIA affirmed
Posted on April 24, 2008Ly v. Mukasey, No. 07-2186 denies a petition for review of a Cambodian that claims to have been a member of the wrong political party. The IJ seems to have gone all out holding, that 1) the petition was untimely;...
Government's motion to strike attorney's name granted
Posted on April 22, 2008Dear Court, Can you please not say the name of our attorney. Love, Government {two years pass} Dear Government, Anything for you. And no, we don't do this for other lawyers. Thanks Cal.App.Rpt.
Another disturbing laptop case from the 9th on how the First Amendment must hew to cops
Posted on April 21, 2008In light of recent precedent, many lawyers that respect their clients? confidences travel with laptops that do not contain sensitive information. This means: 1) no notes from interviews; 2) no medical records; and 3) no draft pleadings or other motions...
Amateur hour at the First
Posted on April 21, 2008According to the ?Official JD Admissions Blog at Harvard Law School? A Harvard 3L will be arguing before the First. The results of this case will bind future panels and all District Courts in the First Circuit.* *I am not...
CA1: Cambodian petition denied
Posted on April 20, 2008Phal v. Mukasey, No. 07-1223 (4/18/08) denies the petition for review of a Cambodian claiming political persecution. The IJ identified a bunch of inconsistencies, and noted that she remained in Cambodia for a few years after the persecution. Not really...
CA1: unreasonable gas prices, relation back, and franchise law
Posted on April 20, 2008Marcoux et al v. Shell Oil Products et al. 05-2771. Shell franchisees are suing Shell, claiming that Shell told them that they would always get a discount on the cost of the franchise providing based on their sales. Then that...
CA1: EMTALA covers people that are almost at the hospital
Posted on April 20, 2008Morales v. Sociedad Espanola de Auxilio Mutuo et al, No. 07-1951 (4/18/08) holds that for purposes of the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, ?an individual can come to the emergency department for EMTALA...
CA1: Industrial Double Jeopardy only applies to final punishments
Posted on April 20, 2008Zayas et al v. Bacardi Corporation, No. 07-1950 (4/18/08). An employee raised a ?double jeopardy? argument in an arbitration ? essentially arguing that he had been dismissed after already being punished. The arbitrator freaked out and didn?t address it...
CA1: FRCrimP 35 is jurisdictional, and tax cheat issues
Posted on April 18, 2008US v. Griffin, Nos. 07-1475, 07-1477. This is cross-appeal of a tax case under 26 U.S.C. § 7206(1) (false income tax return) by someone that made lots of money in multi-level marketing, but said she didn?t make that much. The...
CA9: Ninth fixes its jurisdictional faux pas on waivers in pleas
Posted on April 18, 2008A little while ago, the Ninth, for some strange reason held that it lacked jurisdiction ?to even hear an appeal because of the 11(c)(1)(C) plea.? Some law clerk screwed that up. Today, the Ninth Amends its opinion and undoes the...
CA1: Smart Columbian loses
Posted on April 17, 2008Arias-Valencia v. Mukasey, No. 07-1713 (unpublished) denies the petition for review of a Columbian. The First notes that ?Arias has avoided immigration officials for nearly twenty years, and in that time he has made a good life for himself. He...
CA1: Puerto Ricans? can?t get no relief for the commonwealth?s woes
Posted on April 17, 2008Chardon-Dubos v. US, No. 07-1966 (unpublished). This is what was in the complaint. ...alleged that the Federal Government's failure to exercise sovereignty over Puerto Rico resulted in the Puerto Rican government choosing to spend money lobbying Congress on the issue...
CA1: District Court misunderstanding plea agreement wasn?t that bad
Posted on April 17, 2008US v. Cardona-Diaz, No. 06-2315. A guy was arrested. He plead guilty and executed an appeal waiver. The government agreed to recommend a sentence of 87 months. The District Court said that the parties ?agreed? on such a sentence. Nobody...
CA1: Puerto Rican political discrimination claim fails
Posted on April 17, 2008Morales-Tanon v. PR Electric Power Authority, No. 07-1774 affirms a dismissal in a Puerto Rican political discrimination case. There were two issues: when the statutes of limitations began to run (i.e. when a shift in office-holders became clear); and whether...
CA1: Gillette?s alleged shaving in ERISA plan upheld
Posted on April 17, 2008Livick v. Gillette Company, No. 07-2108. Okay, another ERISA case. After a grant of summary judgment to Gillette and its retirement plan. There was a ?miscalculation? of the plaintiff?s benefits by a ?human resources representative? and various websites based on...
CA1: required findings of fact in a bench trial
Posted on April 16, 2008Torres Lazarini v. US, No. 06-2634 is an affirmance of an FTCA/Medical Malpractice case (resolved by a bench trial) against the VA which is governed by Puerto Rican substantive law. The big issues seem to be whether the District Court...
CA1: a normal restart of questioning Miranda problem
Posted on April 16, 2008US v. Lugo-Guerrero, No. 06-2745 affirms a conviction. The big issue is whether un-Mirandized statements were improperly admitted. The strange thing about Federal Miranda battles now, is judges seem to think that people that don?t properly invoke their right to...
CA1: PSLRA dismissal reversed
Posted on April 16, 2008Mississippi Public Employees' Retirement System v. Boston Scientific Corp. et al., 07-1794 reverses the dismissal of a Private Securities Litigation Reform Act of 1995 ("PSLRA"), Pub. L. No. 104-67, 109 Stat. 737 case. If you practice securities law you should...
CA1: Rehearing denied with dissent in AEDPA ?remedy? case
Posted on April 16, 2008Evans v. Thompson, No. 07-1014 (our coverage of original case here). Judges Torruella and Lipez begin by cataloguing other dissents from denials of petitions rehearings in banc in other circuits regarding the scope of review in habeas cases (you know,...
Helping people make up their mind on the death penalty
Posted on April 15, 2008Dear AL&P, Because no American jurisdiction will provide me with photographs of what a real execution looks like I am unable to make up my mind on whether the death penalty is a good idea. It is like they are...
CA1: no discriminatory animus at Coke
Posted on April 15, 2008Thompson v. Coca-Cola Company, No. 07-2107. A guy went to Jamaica to have dental work done. When he got back her was fired for not finding someone to cover his shifts. There seems to be some discrimination going on at...
CA1: First sides with credit reporting agencies where valid loan was secured by forged mortgage
Posted on April 15, 2008DeAndrade v. Trans Union LLC, No. 07-1844. This is a credit-reporting screw-up case (in which the defendants are accused under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x ("FCRA") of not ?reinvestigat[ing] properly and delete the disputed debt from...
CA1: ERISA, the ADA and pro ses
Posted on April 14, 2008Femino v. NFA Corporation, Nos. 07-2178, 07-2179 (unpublished). This is a pro se ERISA case. I guess I could just stop there. However, the reasoning is more of a civ pro issue. The First says that the issue is precluded...
CA1: Traveling Copt not that oppressed
Posted on April 14, 2008Abdel Malek v. Mukasey, No. 07-1851 affirms the asylum denial of an Coptic Egyptian. The facts (which the IJ found credible) show how screwed up people are in other countries. People go around threatening each other and offering each other...
CA1: another ?in furtherance? affirmance ending with an opaque sentencing discussion
Posted on April 14, 2008US v. Rosado, No. 07-1465 (unpublished) affirms a conviction for distributing ?cocaine base.? The First turns back a sufficiency challenge saying that of course a jury could infer that someone knew how much drugs were in a car. It also...
Leaving it to the legislature.
Posted on April 14, 2008Whenever you read a case which includes some command to a party seeking relief to lobby congress, everyone knows what is happening: the losing party is being laughed at by the judge. The relief he seeks is so alien to...
CA1: guns+drugs, in criminal law, do mix (and defendants lose)
Posted on April 11, 2008US v. Marin, No. 06-1912. This is a 18 U.S.C.§ 924(c) (firearm ?in furtherance of drug trafficking? conviction). Now, in light of Heller, the law might be different. There was a gun in the bedroom, but nobody saw him carry...
CA1: hotel room bust okay
Posted on April 11, 2008US v. Jones, No. 06-2472. This case begins with a log narrative of a drug bust with a no-knock warrant. Then the First gets into Fourth Amendment issues, which we can guess we know where they are going. To answer...
CA1: bookies and Booker
Posted on April 11, 2008US v. Nguyen, Nos. 07-1010, 07-1011, 07-1012. The facts here read like some kind of mafia flick. Some guys lost a bet. Some other guys came to collect. It ends (and the case begins) with an ? indictment alleg[ing] that...
Sentencing Roundup
Posted on April 11, 2008Since there were a bunch of sentencing issues from the First in the past day or so, here they are right next to each other, so you don't have to scroll past all that civil crap. Striking a death notice...
CA1: First finds an exception to Younger abstention for administrative proceedings involving Esso
Posted on April 11, 2008Esso Standard Oil v. Mujica Cotto, No. 07-1218 (4/10/08). The District Court enjoined the Puerto Rico Environmental Quality Board from imposing a fine on the plaintiffs essentially because the administrative proceedings were quite biased and didn?t have enough due process...
CA1: Contribution train wreck
Posted on April 11, 2008Rio Mar Assoc. L.P. v. UHS of Puerto Rico, Nos. 07-1868, 07-2005 (4/10/08). In this case, Selya needs to reduce the use of big words, since there are complex issues of civil procedure involving members of the upper middle class....
CA1: perhaps the MDLEA is constitutional
Posted on April 10, 2008USA v. Vilches-Navarrete, 06-1942. This is another high-seas drug stop under the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. § 70503. As to the constitutionality of the MDLEA, Torruella says that issue can be avoided under the doctrine of....
programming note
Posted on April 10, 2008Today's opinions will be out tomorrow. Come to customer service to get your money back.
CA1: First Circuit resurrects death notice when government doesn?t follow rules
Posted on April 10, 2008US v. Lopez-Matias, No. 07-1662. The government filed a notice that it wanted to kill someone. The District Court struck the notice saying that the government didn?t abide by its own rules regarding presentation of mitigating evidence, nor did it...
CA1: First Remands in light of non-retroactive change in guidelines
Posted on April 10, 2008US v. Godin, No. 06-1749. After being sentenced as a career offender under the 2005 version of U.S.S.G. § 4B1.1(a), the USSC came out with a newer version of U.S.S.G. § 4A1.2(a)(2) (2007); U.S.S.G., Supp. to App. C, Amendment 709...
Florida Hijinx Continue ? with appellate courts and Quo Warranto Petitions
Posted on April 08, 2008This time, an appellate judge is facing discipline for writing a concurring opinion because he criticized a ?fellow? judge in a concurring opinion, stating that the judge should have recused himself. I think most people agree that this is absurd....
Odds and Ends
Posted on April 08, 2008Wait A Second points to the Social Value in Borat. A Borat suit dismissed. The guy who is angry because he was shown running away from Borat loses in the in SDNY. The court writes: The movie challenges its viewers...
CA1: Getting an evidentiary hearing in a service fight
Posted on April 08, 2008Blair v. Towler, Nos. 06-1626, 07-1258. This started as a fairly standard ?cops beating the crap out of someone case.? ?In an initial action, after the petitioners filed an amended complaint, the district court granted the defendants' motions to dismiss,...
CA1: State loses a round in pool fire fight with Nuclear Regulatory Commission, but more to come
Posted on April 08, 2008Massachusetts v. NRC, Nos. 07-1482, 07-1483. There is a re-licensing proceeding going on for two nuclear plants. The state wants to make sure that the spent fuel rods will be disposed of properly (or, probably, in someone else?s backyard). As...
Something good about the Second Circuit?s Clerk?s office
Posted on April 08, 2008Recently, the Second Circuit?s clerk?s office has gotten a lot of bad press. They have attempted to hide opinions and obscure the government?s positions. They have been jerks about briefs. But, today, Norm Pattis has something good to say about...
Judge Weinstein?s opinion
Posted on April 06, 2008It has come to my attention that some members of the bar have commented on Judge Weinstein?s opinion in US v. Polizzi (the one where he cared what the jurors thought about the sentence of someone that had child pr0n)....
CA1: no prejudice in prosecutor comment
Posted on April 05, 2008Delaney v. Bartee, No. 07-1526 affirms a habeas denial. The underlying issue is whether ?the prosecutor violated his constitutional rights under Doyle v. Ohio, 426 U.S. 610 (1976), by commenting on his decision to remain silent after arrest.? Although it...
Quilters 1: Trial 0
Posted on April 04, 2008Bonnie B's Blog reports: An ex-soldier accused of raping a 14-year old girl and murdering her and her family in Iraq was postponed two weeks because there are not enough hotel rooms available [in Paducah, KY] for the trial participants...
Talking about race
Posted on April 04, 2008Recently in some of the presidential campaigns aimed at non-lawyers (there are campaigns aimed at attracting the support of specific lawyers, but they are not relevant here and it is considered rude to discuss them on the internet), people decided...
Programming note
Posted on April 04, 2008At the risk of appearing like a bad lawyer, I must admit that I will get to today?s two cases (a habeas case and an ERISA case today or this weekend. However, this does not excuse real lawyers that are...
CA1: another FCRA "firm offer" case goes down
Posted on April 03, 2008Dixon v. Shamrock Financial, No. 07-1896 affirms the dismissal of another case in which plaintiff argues that a company that sends ads to people and ?unlawfully accessed his credit report, in violation of the Fair Credit Reporting Act ("FCRA"), 15...
CA1: Face off on Facebook turns into first impression Civ. Pro. question about amended complaints
Posted on April 03, 2008ConnectU LLC v. Zuckerberg, No. 07-1796. To begin, let me tell you that I don?t like social networking sites. They are stupid. They are worse than the practice of giggling after every sentence that has taken hold at some law...
CA1: First bends to affirm enhanced sentence because of unresolved conduct and non-noticed conduct
Posted on April 03, 2008US v. Politano, No. 06-2342 affirms an upward Booker variance. Applying Gall v. United States, 128 S. Ct. 586, 597 (2007); and United States v. Martin, No. 06-1983, 2008 WL 748104, at *4-5 (1st Cir. Mar. 21, 2008) (our coverage...
CA1: ERISA, Workers Comp, and preclusion
Posted on April 03, 2008ernandez-Vargas v. Pfizer, No. 06-2632. There is a long and convoluted history behind this appeal of what amounts to a suit arising from an industrial accident. But, the issues are fairly simply. Even though there probably was not actual federal...
Judicial self-indulgence fails to cure social ills or torture memos
Posted on April 02, 2008Judge Marvin Arrington kicked all the white people out of the courtroom and lectured black people about how to behave and not commit crimes, etc. etc. The pundits engaged in shallow naval-gazing about whether it was racist or not. While...
CA1: sentencing issues for passing forged checks
Posted on April 02, 2008US v. Alfano, No. 07-1624 (unpublished). The defendant ?used the name of a fictitious person to cash one of the counterfeit checks...? as well as ?the account number of Toys R Us and the payor name of Atlantic Coast Contractors,...
CA9: Judicial Immunity for governor?s parole override
Posted on April 02, 2008The 9th Circuit holds today, in Miller v. Davis, that the former government of California enjoys judicial immunity when he reverses a decision of the parole board even if lacks the actual legal power to do that. I am mainly...
Contractor charged under UCMJ
Posted on April 02, 2008UCMJ CAAFlog reports on how charges under the UCMJ have been brought against a civilian Canadian civilian contractor in Iraq.
More free case law.
Posted on April 02, 2008If you happen to be poor, get a load of PreCYDent. Type in search terms or cites and you might get lucky. Want more? Go to www.precydent.com See also Public.Resource.Org and Alt-Law.
Not a 4/1 joke: 5th reverses for improper bolstering
Posted on April 01, 2008DotD reports here. It wasn?t even properly preserved. Why the AUSA would say what he said, nobody knows. The Fifth concludes with: We cannot permit the prosecutor?s remarks to be swept under the rug by the broom of the harmless...
CA1: Cyr dissents in Albanian asylum case
Posted on March 31, 2008Cuku v. Mukasey, No. 07-1273. An IJ found the petitioner not to be credible, relying on inconsistences and problems with chains of custody. The First says that is okay. It also says the conduct of the IJ is okay. Normally...
CA1: bus drivers protected by NLRA
Posted on March 31, 2008Five Star Transportation v. NLRB, No. 07-1316 enforces a decision of the NLRB, which found that Five Star Transportation ?engaged in an unfair labor practice in violation of § 8(a)(1) of the National Labor Relations Act ("Act") when it refused...
More on Ben Kuehne (lawyer indicted for opinion letter)
Posted on March 30, 2008Legal Ethics Forum reports that: Regarding Ben Kuehne? we've heard the extraordinary rumor -- we repeat "rumor" -- reported by the WSJ Law Blog is that DOJ has replaced the prosecutor and is considering dropping the charges. See our earlier...
A prosecutor speaks out
Posted on March 29, 2008What prosecutors are thinking. Western Justice peers into the mind of a prosecutor. Here are his thoughts about our system of justice. Yadda, yadda, yadda. Although they won?t admit it to your face, most prosecutors AND defense counsel are saying...
CA1: class certification reversed for now
Posted on March 28, 2008In Re New Motor Vehicles Canadian Export Antitrust Litigation, Nos. 07-2257, 07-2258 & 07-2259 a class certification, but says that the District Court can try again on a more complete record. It is fairly complicated, and antitrust litigation bores me,...
CA1: 1983 state action failures are not a matter of subject matter jurisdiction
Posted on March 28, 2008Alberto San, Inc. v. Consejo de Titulares, No. 07-1605. While this case involves an office condo, the complaint included 1983 claims as well as claims that various statutes were unconstitutional. The District Court dismissed for lack of ?subject matter jurisdiction...
CA1: what it takes to stop poor people
Posted on March 28, 2008US v. Soares, No. 07-1479. A guy was driving with his headlights on in a high-crime area (i.e. poor). The cops saw ?furtive movements.? A ?pat-frisk? found a gun. The facts get a little silly as a defendant is termed...
CA1: First finds a way to use Snyder to screw up a religious Batson challenge
Posted on March 28, 2008US v. Girouard, 07-1244. We don?t see many ?consumer product tampering in violation of 18 U.S.C. § 1365" convictions. (?Girouard was a nurse with the veterans' administration.... She pricked or cut transdermal patches through their wrapping, thereby removing some of...
CA1: a drug conviction with all the normal trimmings
Posted on March 28, 2008US v. Page, Nos. 06-2006, 06-2007 affirms a conviction for ? possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and conspiracy, id. § 846.? Immigration and Customs Enforcement (ICE) seems to have been running a rather large...
Appellate Review coverage of Jencks Act split
Posted on March 27, 2008We covered United States v. Colón-Díaz, 2008 WL 787389, *22 n. 8 (1st Cir. Mar. 26, 2008) here. Appellate Review provides more here, describing the split between whether ?Government Agents Always Preserve Rough Interview Notes When Those Notes Are Incorporated...
CA1: failure to reopen not abuse of discretion
Posted on March 27, 2008Tandayu v. Gonzales, No. 07-1738. The petitioner in this asylum case is an Indonesian Christian. The petitioner tried to reopen it a couple of times with articles or materials showing conditions in Indonesia. The First says it wasn?t an abuse...
CA1: ADA law is, uh, complex or something
Posted on March 27, 2008Ruiz-Rivera v. Pfizer Pharmaceutic, No. 07-1595. This is a ADA Selya case. Lots of big words. It affirms summary judgment that an employee wasn?t really prevented from performing any major life activities. Specifically, she failed on a ?regarded as? claim...
CA1: stock option period strictly enforced
Posted on March 27, 2008Mariasch v. Gillette Company, 07-1549. An employee got some stock options from his employer. He says he gets to exercise them late. There is a choice of law issue, but the First says that this is really a matter of...
CA1: Puerto Rican insurance liquidation fight ends
Posted on March 27, 2008MRCo, Inc. v. Juarbe-Jimenez , No. 07-1614. The plaintiff sued Banco Popular and the insurance commissioner of Puerto Rico as ?liquidator of the Plan de Salud de la Federación de Maestros de Puerto Rico.? The plaintiff then settled with Banco...
CA1: ERISA civil procedure federalism party !
Posted on March 27, 2008Geiger v. Foley Hoag LLP Retirement Plan, 07-1208. This looks like fun. It involves the interrelations between family law, ERISA, and most of all, civil procedure. Essentially there were divorce proceedings in state court. Then the plaintiff went to federal...
CA1: two drug shipments ? on fake ? turns into sentencing mess
Posted on March 27, 2008US v. Jaca-Nazario, Nos. 05-2114, 06-2157 vacates the sentence of a guy that entered two pleas to difference offenses that were accepted by different judges. It is a Puerto Rican drug smuggling case where the ?drugs? were not really drugs,...
Art at the First Circuit
Posted on March 27, 2008Turns out most people don?t like the First Circuit?s taste. ArtBistro reports A panel of prominent artists, architects, attorneys, and judges, including US Supreme Court Justice Stephen G. Breyer, picked [Ellsworth] Kelly ? an 84-year-old Upstate New York artist whose...
Home-schooling: A simple lie is more true than a complex truth.
Posted on March 26, 2008A lot of the non-lawyers have been crowing about how a ?court ruling? makes it a crime to home-school kids. As much as I don?t like the idea of home-schooling, the people disseminating this propaganda seem to actually fear the...
CA1: even though some in the government might agree with the defendant, the jury can still convict
Posted on March 26, 2008US v. Lachman, Nos. 06-1058, 06-1060, 06-1061 affirms a conviction for violating the Export Administration Act of 1979 ("EAA"). All the defendants were ?convicted by a jury of exporting (and conspiring to export) a control panel for a large hot...
CA1: Jencks and hearsay
Posted on March 26, 2008US v. Colon-Diaz, No. 06-2550 affirms a conviction in a drug case. There are some interesting evidentiary issues But the most interesting issues is a Jencks act violation. The DEA agents destroyed the ?rough? copies of their notes. But, it...
CA1: Falun Gong petition denied
Posted on March 26, 2008Lin v. Mukasey, No. 07-1658 denies a petition for asylum and CAT relief of a Chinese member of Falun Gong. The IJ found him not to be credible. This is really strange, because I thought the Chinese were really giving...
CA1: when intent becomes attempt
Posted on March 26, 2008US v. Piesak, No. 07-2164 affirms a conviction for an attempt to manufacturer ecstasy. The First describes the evidence as such she ?(1) acquired ingredients necessary to manufacture ecstacy; (2) researched, obtained, and actively studied ecstasy recipes; and (3) acquired,...
CA1: PT challenges to Medicare regs need to be properly exhausted
Posted on March 26, 2008Puerto Rican Association of Physical Medicine and Rehabilitation v. US, No. 07-2476 affirms a decision of the District Court, which rejects a challenge to a regulation which indicates that Medicare reimbursement is not available for physical therapy. The relevant regulation...
CA1: guarantors gotta pay
Posted on March 25, 2008Wheeler v. Blumling, No. 07-1992. A loan broker became a guarantor on a loan with a ?breathtaking? interest rate ? over 1000% per annum. The guaranty agreement specified a maximum amount that he would be liable for. The guys that...
CA1: First Circuit really bends to say that tapes ?contain? photos (and some sentencing)
Posted on March 25, 2008US v. Rogers, No. 06-2532. In a child pr0n prosecution, the cops got a warrant for a house, specifying that they were to look for ?photos of [a minor child].? They found a videotape. He was charged in state court,...
Judicial procedural appellate activism?
Posted on March 24, 2008Since most people that talk about ?judicial activism? are political hacks seeking the favor of non-lawyers, I don?t take them seriously. In fact, I think they should be disbarred. However, I have attempted to compile two definitions (taken in part...
An Easter Egg in the DTA: Does it Apply to the CAAF?
Posted on March 22, 2008While the lay people have been crowing about the ?suspension? of habeas corpus (which probably never happened), some lawyers have made the argument that 28 USC 2241 (e)(2), does not remove the jurisdiction of the US Court of Appeals for...
CA1: Big case on post-Gall sentencing procedure and substance
Posted on March 21, 2008US v. Martin, No. 06-1983. This case begins with ?This appeal represents our first full-fledged application of the teachings of Gall. At the same time, it also affords us an opportunity to discuss a relatively new phenomenon: the practice indulged...
CA1: there was notice of a deportation hearing
Posted on March 21, 2008Aragón-Muñóz v. Mukasey, No. 06-2776 denies a petition for review of a Guatemalan. After being ordered deported in absentia, he tried to reopen. The First holds that based on the evidence it was reasonable to conclude that he, in fact,...
CA1: warrant application omission okay
Posted on March 21, 2008US v. Belton, No. 07-1190. The defendant argues that the arrest ?warrant application was fatally flawed because it intentionally or recklessly left out critical facts that were needed for a proper understanding of the facts set out in the application...
CA1: Fahrenheit 9/11 didn?t defame injured vet
Posted on March 21, 2008Damon v. Moore, No. 07-1365. I thought this case would be interesting because the Weinsteins and Michael Moore were being sued. (Of course Michale Moore is represented by a big firm.) The plaintiff claims that Fahrenheit 9/11 ?portrayed Damon as...
CA1: Brazilian CAT claim denied
Posted on March 19, 2008De Oliveira v. Mukasey, Nos. 07-1642, 07-1643 denies the CAT petition of two Brazilians who were local politicians. They were threatened, but the IJ said that nobody took ?overt action.?
CA1: statutory construction and "firm offers"
Posted on March 19, 2008Sullivan v. Greenwood Credit, No. 07-2354. This is a ?putative class action challenges the legality, under the Fair Credit Reporting Act ("FCRA"...), 15 U.S.C. § 1681 et seq.? The plaintiffs seek statutory damages for the alleged misuse of credit agency...
CA1: no safety valve for drug mule
Posted on March 19, 2008US v. Ayala-Tapia, No. 06-2781. This is a ?drug courier ? prosecution. The mule claims she didn?t know what was in the packages. She was convicted and challenges on sufficiency grounds. Before affirming, the First dances around a bit, and...
Lineup for Snyder v. LA
Posted on March 19, 2008Even though SCOTUSblog will competently cover Snyder v. LA (holding that a trial judge committed clear error in rejecting a Batson challenge), I want all you people out that troll the masses about judicial activism, and ?liberal? and ?conservative? judges...
CA1: another deemed admission
Posted on March 18, 2008CMI Capital v. Gonzalez-Toro, No. 06-2623. It seems that many oppositions to motions for summary judgment do not specifically counter the statements of facts as required by local rules. This is called the ?anti-ferret? rule. Procedurally, the First points out...
Odds and Ends
Posted on March 18, 2008The other side of qualified immunity. Usually after I read a 1983 case on qualified immunity which ends in a determination that the defendant (usually a cop, sometimes a state official) is entitled to qualified immunity, there is a great...
CA1: experts in warrant applications
Posted on March 18, 2008US v. LaFortune. No. 06-1699 affirms a conviction in a child pr0n case. The main objection raised by the defendant is that in reviewing an application for a search warrant, the magistrate lacked "informed lay opinion, evidencing some kind of...
CA10: Daubert in criminal proceedings
Posted on March 17, 2008White Collar Crime Prof Blog points to US v. Nacchio, No. 07-1311. This is an insider trading case, but it is also a very good one for anyone that had to deal with scientific evidence. Strangely, the Washington Legal Foundation...
CA1: Patry brings the First circuit into Spitzergate
Posted on March 17, 2008Even though I think it is high time we leave Elliot Spitzer alone, William Patry explains that some nude photos can be matter of public concern based on the First Circuit?s decision in Nunez v. Caribbean International News Corp. 235...
Law students and interviewees are not so bad: a reply to HowT
Posted on March 17, 2008Have Opinion Will Travel produces his usual shtick, which is something like this: Look at me I am a judge; I am really smart whereas other people are not (did I mention that I am a judge?); I understand what...
CA1: ?indecent assault and battery on a person fourteen years or older? is a ?crime of violence?
Posted on March 14, 2008Ramirez v. Mukasey, No. 07-1655. In this deportation case, the issue if whether a conviction under Mass. Gen. Laws ch. 265, § 13H for ?indecent assault and battery on a person fourteen years or older? is a ?crime of violence?...
CA1: victims of sex-traffickers got to go back home, because they are not politically oppressed
Posted on March 14, 2008Ndreka v. Mukasey, No. 07-2019 (unpublished). In its haste to send an Alabanian back, the First drops this bombshell: Although Ndreka argues she was subject to persecution based on her political opinion, substantial evidence supports the Board?s determination that Ndreka...
CA1: denial of a continuance not a due process problem
Posted on March 14, 2008Lopez v. Mukasey, No. 07-1515 denies the petitioner of a Peruvian family. While in deportation proceedings, the petitioners tried to appeal a denial of visas and adjust their status. The government opposed any continuance and pointed out that prior visa...
CA1: dismissal for want of prosecution affirmed
Posted on March 14, 2008Gulla v. Dennehy, No. 07-1936 (unpublished). Case was dismissed for want of prosecution after District Court gave a prisoner a few changes to amend his complaint. The plaintiff claims that he was ?incapacitated? during the time period in question, the...
CA1: Indonesian Christian's petition fails
Posted on March 13, 2008Sela v. Mukasey, No. 07-1837 denies a petition for review of an Indonesian Christian. The IJ said the petition was timebarred, but credible, but not corroborated enough. The First says that there wasn?t enough evidence to show that there was...
CA1: getting tripped up on Unitherm
Posted on March 13, 2008Ellrich v. US Bank National Association, No. 07-1115 (unpublished). Despite this case?s lofty caption, it is really an appeal of a jury verdict. But, the plaintiff gets tripped up because ?The short answer is that at trial Ellrich did not...
CA1: Kenyan?s petition fails
Posted on March 13, 2008Karim v. Mukasey, No. 07-1981 (unpublished) denies a petition for review of a Kenyan. The guy was pro se. The guy admitted that he wasn?t a US Citizen, and the defendant didn?t meet his burden of showing that he was...
CA1: disability discrimination case sinks on local rules
Posted on March 12, 2008Rios-Jimenez v. Secretary of Veterans Affairs, No. 06-2582. This is a disability discrimination act case pursuant to the Rehabilitation Act, 29 U.S.C. § 701 et seq. The plaintiff lost on summary judgment, but mainly on things that were deemed to...
CA1: Farmers? due process claims fail
Posted on March 12, 2008Perez-Acevedo v. Rivero-Cubano, No. 06-2633. This is a corporate 1983 action by some Puerto Rican poultry farmer. In Puerto Rico, the commonwealth allowed farmers to join a ?nucleus? which allowed them to use a trademark. Nucleus membership conferred other benefits...
What the First said about Clear Error
Posted on March 12, 2008Another note on DeCaire v. Mukasey, No. 07-1539 (our coverage here). Even criminal law practitioners need to read it, because the First has this very important language regarding the ?clear error? standard: We have great concern over the district court's...
Odds and ends
Posted on March 12, 2008They are odd. They are ends. They are odds and ends. Welcome to the Blogosphere. Appellate Review is a nice blog that talks about circuit splits, stuff that real lawyers care about. What do you get when you pay $4,300?...
CA1: the use of timebarred discrimination and remedies for mixed motive discrimination in the US Marshal?s office
Posted on March 11, 2008DeCaire v. Mukasey, No. 07-1539. I thought this was an immigration case. But it is far more interesting. A deputy US Marshal claims that she was discriminated against on the basis of ?gender and retaliated against her after she filed...
CA1: Defendant wins big double jeopardy case
Posted on March 11, 2008US v. Lara-Ramirez, No. 06-2108. In the underlying trial, a bible was discovered in the jury room, and some indication that a jury was relying on the bible. (I think the District Court judge did a good job of investigating...
CA1: ah, the great pro se lawsuit
Posted on March 11, 2008Swan v. Barbadoro, No. 07-1453. Guy was convicted of some tax stuff. Then he sues the judges and prosecutors under Bivens. Then he sues under RICO. You know where this is going (or went). In the First he moves for...
More Odds and Ends
Posted on March 10, 2008Because of a lack of cases this weekend, and a big queue of unpublished odds and ends, I give you these things. Because it is a holiday in some country, there will be no jokes about tort reform this week....
CA1: age discrimination
Posted on March 07, 2008Torrech-Hernandez v. General Electric Co. No. 07-1341 affirms a grant of summary judgment in an age discrimination case in favor of the defendant. I will get to this later.
CA1: waived arguments on contempt and bail
Posted on March 07, 2008U.S. v. Henry, Nos. 06-1298, 06-1299. This case was originally the subject of an Anders brief. But, new counsel carried the ball. The defendant was originally released on bail, subject to a ?don?t commit any crimes? requirement. He was soon-after...
CA1: sentencing, and car protective sweeps
Posted on March 07, 2008US v. Diaz, No. 06-2378. The court affirms the denial of a motion to suppress evidence obtained in a ?protective sweep? of a car after the defendant was cuffed. The District Court comes up with this silly rationale, such a...
CA1: an international custody battle, with a 14th amendment argument
Posted on March 07, 2008Kufner v. Kufner, No. 07-1523 affirms the District Court?s grant of a petition under the ?Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501 [hereinafter Hague Convention], as implemented by the International Child...
CA1: safety burden on defendant under Maine Human Rights Act
Posted on March 07, 2008Warren v. United Parcel Service, No. 07-2197 affirms a jury verdict in a Maine Human Rights Act ("MHRA") case, in which an epileptic employee claimed that he was discriminated against. UPS argued that the ?safety? exception wasn?t properly explained to...
Best comments
Posted on March 05, 2008Yesterday I promised that I would be providing some odds and ends, and I even suggested that I might make a snarky remark about Ted Frank?s spreadsheet. I have to admit that I was having a hard time saying something...
Programming note 2.0
Posted on March 04, 2008In the past week I have been somewhat remiss in my duties to you ? the reader. This is because I have been doing very important things in a very professional matter. So, rest assured, during the coming week not...
CA1: prior inconsistent statements admissible, but error harmless
Posted on March 04, 2008US v. Pridgen, No. 06-2595 (2/29/08). The First holds that yes, it was error to refuse to admit the prior inconsistent statements of a government witness. This was the District Court?s grounds: 1) ?That?s not how you get a prior...
Odds and Ends Part I
Posted on March 04, 2008In an effort to catch up on all the odds and ends, I will divide them into manageable chunks of lawful goodness. Another Twist to the ?Law of the Circuit? Rule. The 9th Circuit, in Bradley v. Henry (9th Cir....
CA1: voluntary guilty pleas, collateral consequences, and young people in jail
Posted on March 03, 2008US v. Ward, No. 06-2354 (2/29/08). The clerk who wrote it explains the plight of a typical poor defendant. He even admits that some people go to ?worse? schools than others, and seems to be sympathetic to his failed attempts...
CA1: En banc rehearing denied in Cerqueira ? so the First really does like racial profiling
Posted on March 03, 2008Over the dissent of Torruella, the First denies a petition for rehearing and rehearing en banc in Cerqueira v. American Airlines (our coverage here), which held that the airlines can?t be sued for kicking someone with a Stanford education off...
Cultural anthropology 101 for lawyers
Posted on February 27, 2008I have often been criticized for being isolated from non-lawyers. After all, like most of my readers, since non-lawyers have very little contact with non-lawyers, we simply don?t know much about their simple, yet ancient and beautiful culture. It seems...
CA6: Sixth Circuit turns habeas preclusion against the state
Posted on February 27, 2008DotD points to a decision from the 6th Circuit which holds that if the state courts, pre-Atkin concluded that someone was retarded to be killed by the state but nevertheless could be killed by the state, post-Atkins, the state can?t...
GA: Jefferson contempt coverage reversed
Posted on February 26, 2008Detail-oriented real lawyers (i.e. our fans) will recall our coverage of Sherri Jefferson. (Even more of our coverage here.) Well, A Public Defender tells us that the contempt conviction of public defender, Sherri Jefferson was reversed by the George Supreme...
CA1: BOP?s regulations denying placement in halfway houses valid
Posted on February 26, 2008Muniz v. Sabol, Nos. 06-2692, 06-2693. The First Circuit holds that ?the Bureau of Prisons (BOP) may, through rulemaking, deny placement in a community corrections center (CCC) Footnote to all prisoners during the first ninety percent of their sentences...
CA1: Laches in an IDEA case
Posted on February 26, 2008School Union No. 37 v. Ms. C., No. 06-2261. In yet another IDEA case, the school District wins. This time the school district claims that the administrative decision requiring the school to pay for the private schooling of someone that...
CA1: School District wins IEP fight
Posted on February 25, 2008Lessard v. Wilton-Lyndeborough, No. 07-1860. Selya does an Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1491 (2000) case, and the parents lose. This essentially comes down to an (Individualized Eduation Plan) IEP fight. Selya seems to envision the...
CA1: Why do District Courts screw up 41(g) motions?
Posted on February 25, 2008US v. Cardona-Sandoval, No. 07-1748. This is a return of property appeal under Fed.R.Crim.P. 41(g). The District Courts seem to be screwing these things up quite a bit. See United States v. Cardona-Sandoval, No. 05-1022 (1st Cir. Mar. 17, 2006)...
Hillary represented someone
Posted on February 25, 2008Sexcrime Defender points to an interesting account of Senator Clinton?s representation of a defendants in criminal matters. She really seems to have done it all: 1) aggressively represented defendants in front of courts that were hostile to both her and...
CA1: cert. in Carcieri v. Kempthorne
Posted on February 25, 2008SCOTUSblog says that Supremes grant cert. in Carcieri v. Kempthorne (our coverage -- 1330 words of it -- is here). Gladys Kravitz says this is all about the casinos.
Miller Test Google Poker
Posted on February 24, 2008Dear S.Cotus: What game can I play at work with Google and an understanding of constitutional law? Hugs and Kisses, Professor Twoyearsbehindthetimesbutstillblogs. Dear Professor, Have I got a game for you. It is called Miller Test Google Poker. Agree amongst...
Torruella?s dissent
Posted on February 23, 2008In light of Judge Torruella?s disagreement about the Court?s decision to rehear US v. Vega-Santiago, 06-1558 en banc (our coverage here), I think the part of his dissent dealing with rehearing en banc procedures needs to be analyzed for it...
CA1: selective prosecution
Posted on February 22, 2008There was one other opinion from the First today, on selective prosecution. Since Selya wrote it, and the defendant was a black Muslim, there isn?t much to learn from it. I wrote something about it, but the post was eaten....
On the subtle beauty of coerced confessions
Posted on February 22, 2008Orin Kerr points to an article by Charles Weisselberg entitled ?Mourning Miranda.? It describes the ways in which society is protected by getting poor people to confess to things. And believe me, you can make a poor person say anything....
CA1: Cops not entitled to qualified immunity for failed drug bust and massive waivers
Posted on February 22, 2008DeMayo v. MA State Police, No. 07-1623 reverses a grant of summary judgment on the basis of qualified immunity (and a denial of a for judgment motion on the pleadings) in a Bivens action. The individual cop (along with other...
Crack retroactivity ? Puerto Rican style
Posted on February 22, 2008PRACDL posts the District of Puerto Rico?s administrative order dealing with the implementation of the Crack Retroactivity Guideline in the District of Puerto Rico.
CA1: en banc court holds that 32(h) notice at sentencing is required sometimes based on vague yet easy-to-understand standard
Posted on February 21, 2008US v. Vega-Santiago, 06-1558 (en banc). Panel Decision here. Our coverage here. The First granted rehearing to determine whether ?the district judge must provide "notice" to litigants before imposing a sentence outside the guideline range--a requirement that the panel found...
Posner's trashing of Experts
Posted on February 20, 2008DotD has a post entitled ?Seventh Trashes Prominent Finance Professor? which you should read. Essentially, Posner flexes his muscles and says that a PhD economist ?cannot be trusted to continue as an expert witness in the case in which he...
Supreme Court decisions on stuff
Posted on February 20, 2008A lot of decisions from the Supreme Court today about preemption, arbitration, and retroactive effect. If you were a real lawyer (or adhered to basic standards of ethics) you would have read them by now.
CA1: someone has to go home
Posted on February 15, 2008Sumilat v. Mukasey, No. 07-1784 (unpublished). This case reads in substance, ?Substantial evidence supports the Board?s decision, and the record does not compel a contrary conclusion.? I can?t even tell what country he is from.
CA1: 6(b) motions and tenure termination hearings
Posted on February 15, 2008Jackson v. Norman, No. 07-2382 (unpublished) grants a summary disposition in a 1983 case in which the plaintiff claims that ?his termination from employment as a tenured professor at the Massachusetts Bay Community college ("MBCC") violated his due process and...
CA1: Mexican not always in the US
Posted on February 15, 2008Acevedo-Aguilar v. Gonzales, No. 07-1261 denies an immigration petition for review on a question of whether the facts show that the petitioner was in the US for ten straight years as required 8 U.S.C. § 1229b.
CA1: Tax Court stipulations are like contracts and are interpreted under Federal Common law
Posted on February 15, 2008Nault v. US, No. 07-1455 affirms the decision of District Court which essentially interpreted stipulated decisions by the Tax Court in litigation involving a partnership which this plaintiff was involved in. The plaintiff filed amended returns and essentially claimed that...
CA1: Cambodian not oppressed
Posted on February 14, 2008Teng v. Mukasey, No. 07-1224. In this immigration case, the petitioner is a Cambodia that was oppressed by Pol Pot and his ilk. Before the First is the CAT claim and the withholding claim. Everyone seems to agree that Cambodia...
CA1: domicile fight requires evidentiary hearing
Posted on February 14, 2008Padilla-Mangual v. Pavia Hospital, No. 07-1447. Every now and then there is a question of whether someone?s ?domicile? is for diversity purposes. Anyway, the District Court dismissed without holding an evidentiary hearing, seemingly relying on the fact that he filed...
CA1: An all-American FRCP 19 fight!
Posted on February 14, 2008B. Fernandez & Hnos. v. Kellogg USA, Inc., Nos. 07-1317, 07-1318. According to some people, understanding this kind of case is what makes you a real man. This case first came to the First in B. Fernández & Hnos., Inc....
CA1: DOJ employee loses ERISA claim on procedural and ERISA grounds
Posted on February 14, 2008Serreze Desrosiers v. Hartford Life, No. 06-2609. Starting at the top with a garden-variety denial-of-long-term disability benefits ERISA case. What sets this apart is the plaintiff is an attorney that worked at the US Trustees?s Office. She enrolled in the...
Price of Dildos Lowered in Texas
Posted on February 14, 2008Just in time for Valentines Day, the Fifth Circuit finds a civil liberty that doesn?t involve the police (unless you are into that stuff) and protects it. But C.f. Regalado v. State, 872 S.W.2d 7 (1994) (Brown, J., concurring) (?Here...
CA10: If your lawyer puts on a sheriff?s uniform and coerces you into consenting to a search, Qualified Immunity attaches
Posted on February 13, 2008Though malpractice liability does attach. See DoTD.
CA1: District Court?s finding on derivative citizenship affirmed
Posted on February 13, 2008Leal Santos v. Mukasey, No. 07-2110. This is a derivative citizenship case with a long history. It went from an IJ to the Third Circuit to the District Court in Massachusetts. Under 8 U.S.C. § 1401(a), ?derivative citizenship may be...
CA1: in an ERISA case, a trustee is personally liable (and a note of caution for defendants)
Posted on February 13, 2008Indianapolis Life v. Herman, No. 07-1797. This case holds that the trustee of an ERISA plan is personally liable for a default judgment (as well as liable in her trustee capacity) that were the result of cross-claimed filed by defendants,...
Indicted for an opinion letter?
Posted on February 11, 2008In case you don?t know, Ben Kuehne (an extremely prominent Florida lawyer) was indicted for, as far as I can tell, conducting due diligence on the sources of funds use to pay the legal fees of people accused of having...
ExxonMobile's Orders of Attachment
Posted on February 11, 2008A number of people have commented that the main stream media hasn?t provided details about ExxonMobile?s successful attempt to obtain an ?Order of Attachment? against PDVSA a/k/a the Venezuelan oil company that has something to do with Venezuelan politics...
XML case law
Posted on February 11, 2008Robert Ambrogi points out that today ?1.8M Pages of Case Law Released? today by Public.Resource.Org. The materials are in somewhat raw form, but are available for developers to access, but it is organized into directories that you can access as...
CA1: Indonesian Adventist fails in procedural challenge to the BIA
Posted on February 08, 2008Rotinsulu v. Mukasey, No. 07-1516. The petitioner is an Indonesian Adventist Christian. The Judge is Selya. It comes down to a withholding issue. The petitioner says that IJ didn?t make some findings of fact, and the BIA found them. Selya...
CA1: the First says that 28 U.S.C. § 2254(d) is constitutional, because it isn?t a rule of decision
Posted on February 08, 2008Evans v. Thompson, No. 07-1014. The First Circuit takes a position on AEDPA: That it is constitutional in terms of the ways it limits a District Court?s ability to interpret the constitution. I can?t say I am surprised. I am...
CA1: joinder and inconsistent statements
Posted on February 08, 2008US v. Richardson, No. 06-2506. In this case, the First holds that the defendant wasn?t entitled to separate trials under Rule 14 of the Federal Rules of Criminal Procedure for different counts. The First says something like, ?Sure, in most...
CA1: a wider definition of sexual harassment
Posted on February 07, 2008Billings v. Town of Grafton, No. 06-2145. In this case the First Circuit remands after summary judgment in a sexual harassment and retaliation case. This case catalogues a number of instances of breast-staring by someone with "alternating intermittent exotropia" (according...
CA1: supervised release revocation doesn?t get Booker or Blakely protection
Posted on February 07, 2008US v. Eirby, No. 07-1062. As usual, Selya uses big words when sending someone to a hole. This is a supervised-release revocation case based on a guilty plea in state court. The judge ?imposing an additional thirty-three months of immurement.?...
CA1: Refund contract enforceable
Posted on February 07, 2008PR Electric Power v. Action Refund, No. 07-1847. The defendants are in the business of getting refunds from the Department of Energy (based on a settlement of a large lawsuit involving overcharges for petroleum) in exchange for a commission. Puerto...
ALM's LegalTech Trade Show Review
Posted on February 07, 2008I was at Legal Tech. I was going to review, it or something. Legal Technology is very important because technology is the wave of the future. Blawgs are very important because they provide a running commentary of legal events, and...
That moral character stuff is a load of crap
Posted on February 07, 2008TaxProfBlog points to Keith A. Swisher posted The Troubling Rise of the Legal Profession's Good Moral Character, 82 St. John's L. Rev. ___ (2008), on SSRN, shows where the ?moral character? requirement came from. Turns out, it came from a...
CA1: Hatian not oppressed
Posted on February 06, 2008Domercant v. Mukasey, No. 07-1726 (unpublished) denies a petition for review of a Hatian?s petition for asylum. He didn?t seem too political. The IJ found him not to be credible.
CA1: what the BIA doesn?t have to address
Posted on February 06, 2008Vasilia v. Mukasey, No. 07-1434 (unpublished). These are Albanian petitioners. They sought a reopening late. The First Circuit says, ?We do not have jurisdiction to review the BIA?s decision that equitable tolling is unavailable where that decision was based ?on...
CA1: First holds that District Attorneys, even if their work is political, are not politically oppressed
Posted on February 05, 2008Hernandez Cabana v. Mukasey, No. 07-1800. I have to try and avoid the snark on this one. Essentially, the First holds that a former Colombian Assistant District Attorney is not entitled to withholding of removal. Under Matter of Fuentes, 19...
CA1: is there really a duty to inspect a gun barrel ?
Posted on February 05, 2008US v. Alexander, No. 06-2475 (unpublished). A guy was convicted for unlawfully possessing a sawed-off shotgun. He challenges his conviction on the basis of an unpreserved sufficiency challenge. Everything is pretty routine, except that the government?s proof that the gun...
Commentary on Parker v. Town of Lexington
Posted on February 05, 2008Mirror of Justice comments on Parker v. Town of Lexington, No. 07-1528, which we covered here. That is the case where the First tells the parents that don?t like gay people where to go. They find some international law support...
Crackhouse Law
Posted on February 05, 2008A lot of people that read this blog took courses in law school that dealt with the nature of law, and pondered the big questions of life, like, ?What is law.? This is because we went to highly-ranked law schools...
What the whales can teach us about appellate procedure
Posted on February 05, 2008The popular press (mis-)reports on an appellate drama brewing in California. Essentially, this lawsuit regarding the Navy?s use of sonar argues that it violates the National Environmental Policy Act by harming cute whales. There has been a few remands (in...
It turns out that at some firms, clothes DO make the man
Posted on February 05, 2008The Usual Suspects point to this story in the ABA Journal. Apparently Renee Brissette, a partner at [some law firm named] Manatt, Phelps & Phillips not only assigns work to the best dressed associates, but has no qualms about telling...
CA1: More on Hatch (Survivor)
Posted on February 04, 2008Over here, we covered the fact that the First Circuit affirmed the tax evasion convictions of that guy on survivor. Whatever. I hated the show. I hated the fact that people talked about it. It hurt America. People that talked...
Selya love fest in progress
Posted on February 04, 2008Oh look, the Wall Street Journal and NLJ* are talking about how one of Selya?s former clerks says that Judge Selya is the cat?s meow. Apparently, in some circles, using big words to show how smart you are makes you...
Recycle your PACER documents
Posted on February 04, 2008As you know, the court system charges for most non-opinion documents. Resource.org aims to save everyone money. It goes like this: Take your old PACER documents Upload them to the system They will sort them and make them available to...
CA1: El Salvador petition flushed with ?sympathy?
Posted on February 03, 2008Flores-Coreas v. Mukasey, No. 07-1638 (2/1/08) (unpublished). In the US, the government loves to say how it hates gangs from El Salvador. But if someone from El Salvador sneaks into the US, and seeks asylum because of what the gangs...
CA1: NACARA relief denied
Posted on February 02, 2008Valdez De Mansilla v. Mukasey, No. 07-1550 (2/1/08) (unpublished). The petitioner says that she was entitled to a ?merits hearing? under the Nicaraguan Adjustment and Central American Relief Act of 1997 (?NACARA?). She acknowledged she left the United States for...
CA1: denial of motion to arbitration confirmed
Posted on February 02, 2008Combined Energies v. CCI, Inc., No. 07-1766 (2/1/08) affirms the denial of a motion to stay proceedings and compel arbitration in a dispute between ex-partner businesses. Their partnership agreement apparently had an arbitration clause. According to the plaintiff business, after...
programming note
Posted on February 01, 2008A few more to go. Three more to digest. The first one involves arbitration. 07-1766, Combined Energies v. CCI (USDC ME 07-00017 Woodcock, USDJ) 07-1638, Flores-Correas v. Mukasey (BIA A78924226 ) 07-1550, Mansilla v. Mukasey (BIA A72437045 )
CA1: juries should not determine the legality of contracts
Posted on February 01, 2008Bohne v. Computer Associates, No. 06-1745. The plaintiff was a ?sales executive? (I think that means ?saleman.?) He was fired. One claim reached trial: that despite his at-will employment contract included an "implied covenant of good faith and fair dealing"...
CA1: Breaking news. First Affirms ?Survivor? conviction
Posted on February 01, 2008US v. Hatch, No. 06-1902. Okay, this is the appeal of that guy that won ?Survivor? and didn?t pay taxes on his winnings. He was convicted of three counts of filing false tax returns, in violation of 26 U.S.C. §§...
CA1: First bends rather far on autopsy records and Crawford
Posted on February 01, 2008US v. De La Cruz, Nos. 06-1659, 07-2515. This is a drug case. It has lots of neat facts about how drugs are distributed, and a description of an overdose of a poor person that was apparently the result of...
The perfect gift for your favorite lawyer that will give legal cover for anything in your family
Posted on January 31, 2008Thumbscrew & Rack: Torture Implements in the 15th and 16th Centuries by George Macdonald. It is a ?...well illustrated examination of the instruments of torture used by organized Christianity to honor the God of Love and to convince unbelievers of...
Ninth to rehear public school public strip search case en banc
Posted on January 31, 2008DotD reports on how the Ninth said that a school didn?t violate a student? Fourth Amendment rights when they stripped-searched her in public for aspirin. It turns out that she got one of them fancy lawyers, who convinced the Ninth...
CA1: all the kinds of extortion
Posted on January 31, 2008Chikkeur v. Mukasey, Nos. 05-2893, 07-1798 denies a petition for review of Algerians. However, it comes down to whether ?economic? extortion really had a political motive or not.
CA1: Public Health Service is treated like other uniformed services for purposes of FTCA and Bivens
Posted on January 31, 2008Diaz-Romero v. Ashcroft, No. 07-1607. The plaintiff is a commissioned officer of the Public Health Service, an agency of the Department of Health and Human Services, which is a "uniformed service" of the United States. 42 U.S.C. § 201(p). (And...
CA1: anti-gay parents that don?t like gay people lose establishment clause challenge
Posted on January 31, 2008Parker v. Town of Lexington, No. 07-1528. I was going to call this breaking news, but it isn?t. A bunch of parents are angry that ?[T]hey must be given prior notice by the school and the opportunity to exempt their...
CA1: let?s get something straight: land use controversies usually lack constitutional dimensions
Posted on January 31, 2008Clark v. Boscher, No. 06-2473. This is a suit under 42 USC 1983 against a mayor and city counsel that didn?t grant the plaintiffs permits to develop their land. It was kicked under FRCP 12(b)(6). The First says that regular...
Free legal search engine outperforms Westlaw?
Posted on January 31, 2008Robert Ambrogi's LawSites points to the Preycent legal search engine, which aims to out-perform commercial search engines in searching for legal resources in the public domain. For the life of me, I don?t understand why blogs link to Westlaw versions...
CA1: another Puerto Rican political discrimination case
Posted on January 30, 2008Maymi v. PR Ports Authority, No. 07-1157. This is a political discrimination claim by an attorney in Puerto Rico. The salaries are given, and you might note that they are less than lawyer in large firms make. The First amendment...
CA1: partial exhaustion of discrimination claims makes for bootstrapping fun
Posted on January 30, 2008Franceschi v. US Dept of Veterans Affairs, No. 06-2677. This is a case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. essentially alleging age discrimination and retaliation. The problem is he got...
More Second Circuit Clerk's Office hijinx
Posted on January 30, 2008Norm Pattis tells a story of the Second Circuit?s Clerk?s Office losing his briefs. A couple of times. It reads, in part: My client has two appeals against the same party arising out of one set of facts. We filed...
CA1: reassignment to another judge only required in the face of misconduct
Posted on January 29, 2008Yosd v. Gonzales, No. 07-1569 . The petitioner is a Cambodian. It is actually a fairly interesting decision. The BIA remanded ? but to the same IJ. The BIA found that there was a "significant probability" that "the interpretation of...
CA1: another "disclosure of medical records" in the context of a criminal case story
Posted on January 29, 2008US v. Shinderman, 07-1569. Continuing the Selya show, he affirms a conviction of a psychiatrist. He quotes the bible, too. He uses the word ?gallimaufry.? But, as is fairly common with shrinks that can prescribe drugs, he went a little...
Odds and ends: Flashing signs and W&L on its alums being reversed for failing to recuse themselves
Posted on January 26, 2008As we covered here, the First, in Nasar Jewelers, Inc. v. City of Concord, 2008 WL 162521 (C.A. 1 N.H. 1/18/2008), said that the city could ban flashing electronic signs. Law of the Land Comments and posts some briefs. Just...
programming note
Posted on January 25, 2008There is one opinion from the First today, which I will get to after I finish doing real important legal things that most of you could not possibly understand. It is an admiralty case. 07-1396.01A Doyle v. Huntress, In
Ninth makes absolute immunity issue as clear as day
Posted on January 24, 2008DotD points to a brief opinion by an en banc Ninth Circuit reversing itself on the issue of whether Social Workers (that work for the departments charged with taking kids away from parents) are entitled to absolute immunity for statements...
CA1: petition denied on credibility grounds
Posted on January 24, 2008Hem v. Gonzales, No. 07-1775 denies a petition for review in an asylum/CAT claim by a Cambodian couple, mostly on credibility grounds (which the First says it assesses by looking at the record). There is some discussion of what to...
CA1: First resolves asylum mailbox problem
Posted on January 24, 2008Jorgji v. Gonzales, 07-1571. The petitioners area Albanian Christians. But, the big issue appears to be whether their application for asylum was timely under the one-year rule in 8 U.S.C. § 1158(a)(2)(B) and the regulation which tolls the deadline for...
CA1: An actual opinion describing appellate procedure on a habeas grant
Posted on January 24, 2008Foxworth v. Maloney, 06-2379. When I started reading this, I knew it had to be good. Selya appears to be using big words to grant some kind of habeas relief. He points out that ?The king of habeas remedies is...
CA1: The formalities of putting someone in jail based on prior convictions and drug quantity
Posted on January 24, 2008US v. Dickerson, 06-2471. A guy was sentenced to life in prison. As you know, many people are happy when this happens, because lifetime incarceration is the height of human accomplishment. So, it is merely a technicality as to why...
CA1: the interaction of sentencing, bankruptcy, collateral consequences of a non-conviction , and criminal law
Posted on January 23, 2008Larson v. Howell, No. 07-1925. Two homestead exemption in a row. This one is more interesting the previous one, because ?as a matter of first impression, [requires the First] to determine whether the state crime of negligent vehicular homicide qualifies...
CA1: rich doctor?s deferred compensation plan was indeed a top-hat plan
Posted on January 23, 2008Alexander v. Brigham & Women's Hospital, No. 07-1443. This is an ERISA issue. This means that you either 1) care; or 2) really, really, don?t care. The plaintiff is a surgeon that claims that his plan was *not* a valid...
C&D letter case
Posted on January 23, 2008Internet cases points to a case from the District of Idaho in which an ISP lost a subpoena battle over the identity of a web-site-writer after the writer allegedly infringed upon someone by posting a cease-and-desist letter. I still don?t...
Is Monte Carlos a better or worse place than a duck blind to compromise judicial ethics?
Posted on January 22, 2008SW VA law blog points to this. A justice of the West Virginia Supreme Court and a powerful coal-company executive met in Monte Carlo in the summer of 2006, sharing several meals even as the executive?s companies were appealing a...
B.U. Seeks Director of Graduate Tax Program
Posted on January 22, 2008Tax Prof blog posts the announcement that BU is looking for a director of its graduate tax program. This would be a good job for, someone, like say... the guy that runs TaxProfBlog.
CA1: 1983 challenges to hearing officer due process hearing cognizable, but not meritorious
Posted on January 22, 2008Chmielinski v. Commonwealth of MA, No. 07-1652, rejects the argument that a Chief Probation Officer (in Massachusetts, probation is part of the judiciary) was fired without due process. The First holds that despite the fact that he worked for the...
CA1: non-nondischargeable debt doesn?t pierce homestead exemption
Posted on January 22, 2008Pasquina v. Cunningham, No. 06-2786 concludes that the proceeds from the sale of the home that was subject to a state-law homestead exemption retain the exempt status of the home itself under 11 U.S.C. § 522(c). I thought the law...
A strange conception of ?legal?
Posted on January 22, 2008Rhode Island Attorney General Patrick Lynch has an interesting concept of ?the law.? Granted, I understand that he is talking to non-lawyers, and there is no legal or ethical obligation not to talk down to them. Anyway, he writes to...
A Handkerchief Code For Law Reviews
Posted on January 22, 2008If any of you frequent gay bars (or at least gay bars that resemble what I am told that gay bars are like) you will know that people there strictly follow a handkerchief code. The point of this code is...
The end of Atkins?
Posted on January 19, 2008Okay, the case has gone up to the Supreme Court, and back down. The Virginia Supreme Court reversed because the judge in his ?retard-trial? (to see if he was really retarded ? shouldn?t that be presided over by a special...
At least she is honest about not taking defendant?s arguments seriously
Posted on January 19, 2008It is always funny to see the biggest hacks clam to want to ?see all sides? or some crap like that. But, in Texas, you get to be a judge by making statements that claim that you are a ?pro-prosecution?...
CA1: flashing signs really can?t get no respect
Posted on January 18, 2008Naser Jewelers, Inc. v. City of Concord, No. 07-2098. Do you know what an Electronic Messaging Center ("EMC") is? Well, it is an electric sign whose content changes. The city thinks it is distracting to drivers. So, they ban it....
CA1: no duty to defend against environmental suit as home heating oil is a pollutant
Posted on January 18, 2008Nascimento v. Preferred Mutual Insurance Company, No. 07-1792 affirms a declaratory judgment action dealing with my favorite subject, insurance coverage. The plaintiff wants the court to say that the insurance company has to defend him in an environmental lawsuit brought...
CA1: parents were not cooperative enough in IEP plan
Posted on January 18, 2008C.G. v. Five Town Community School District, No. 07-1708. This is a case under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1415. The District Court dismissed the case when it ?found that the [Individual Education Plan?s] incompleteness...
CA1: 1983 case goes away with nexus
Posted on January 18, 2008Gagliardi v. Sullivan, No. 06-2680 affirms the dismissal of a 42 U.S.C. § 1983 action based on the loss of a position on Merrimack Valley Workforce Investment Board when the board didn?t achieve the state certification. Even though it seems...
CA1: First reverses conviction in ?honest services? legislature case
Posted on January 18, 2008US v. Urciuoli, Nos. 07-1297, 07-1327. This case vacates the convictions of conspiracy to commit "honest services" mail fraud and various counts of such mail fraud; 18 U.S.C. §§ 371, 1341, 1346 (2000) in a legislator-bribery scheme. What makes this...
You want cert grants? I got yer cert grants right here!
Posted on January 18, 2008SCOTUSblog provides today?s cert grants. The ones we care about are: MetLife v. Glenn: Dealing with the standard of review in ERISA cases where the administrator has a conflict of interest. See our coverage here. Altria Group v. Good. A...
Capital Punishment in Gotham
Posted on January 17, 2008I know a lot of people on the Blawgospheric Interweb of Law (BIOL) have been talking about capital punishment. The opinions go something like this: More people should be killed by the government because if we don?t, kids will misbehave...
CA1: Two issues, two courts of appeal, two trials, two notices of appeal and no sanctions
Posted on January 17, 2008Cytologix Corp v. Ventana Medical, No. 07-2629. Okay, we got a couple of large law firms fighting it out over some fairly minor procedural issues. My guess is that they spent lots of billable hours on this, so if you...
CA1: First gets preachy over botched motion
Posted on January 17, 2008US v. Pomales-Lebron, No. 06-1620. On a denied motion for judgment of acquittal of Fed. R. Crim. P. 29, based on 21 U.S.C. § 846 (conspiracy to distribute cocaine base), the First says that the government did a good enough...
CA1: First screws up another Albanian asylum claim
Posted on January 15, 2008Gjiknuri v. Gonzales, No. 07-1328 (unpublished) denies the asylum claims of Albanians. Once again the First does something which is really bad. They rely on an apparent form of stare decisis to conclude that asylum claims from some countries are...
CA1: 1983 suit against state court dismissed (with some interesting dicta)
Posted on January 15, 2008Miles v. Funk, No. 07-1057 (unpublished) affirms summary judgment in a pro se 1983 case brought against a state court because ?Appellants claim that their deprivation was caused by the appellees' use of state court to enforce an allegedly unconstitutional...
Guy on probation gets to kill in the name of the state
Posted on January 14, 2008SL&P points to a story of a guy on probation seeking permission to leave the state ? to take part in an execution. Anyway, everyone (i.e. the feds and the state) seems happy with this kind of person killing in...
DC Circuit: GS-9s can torture and interfere with religion much as they want
Posted on January 11, 2008The DC Circuit holds that former GTMO detainees can?t sue the government. Nobody really expected the DC Circuit to rule otherwise, so I don?t think there is much to report on here. But, it is sort of funny to watch...
CA11: government wins Snipes motions
Posted on January 10, 2008Just in case you 1) care; and 2) don?t know, the 11th Circuit rejected all of Wesley Snipes? pretrial motions (e.g. for a change of venue), on a motion from the government to dismiss as an ?impermissible interlocutory appeal.?
CA1: Syrian not that oppressed
Posted on January 10, 2008Saliba v. Mukasey, No. 07-1647 (unpublished) denies the petition for review of a Lebanese petitioner (Greek Orthodox) seeking asylum. The facts are somewhat interesting, because apparently the Syrians were extorting fish from him. He applied late. The government argued that...
CA1: PSLRA case goes to defendant (as does denial of motion to amend), but not all news is good for defendants
Posted on January 10, 2008ACA Financial v. Advest , 07-1367. The First proudly announces that this its first post-Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499 (2007) PSLRA case. PSLRA, in case you are a moron, stands for Private Securities...
CA1: American Airlines wins on issue of whether it can remove someone from a plane
Posted on January 10, 2008Cerqueira v. American Airlines, 07-1824. The plaintiff alleged that he was removed from an airplane because of his race (or, from the captain?s perspective, an ?odd exchange.?) He sued and won a jury verdict (including punitive damages) under 42 U.S.C...
Florida Bar Hijinx
Posted on January 10, 2008Legal Ethics Forum catalogues every attempt by the Florida bar to punish expression by lawyers. These include: 1) criticizing a judge for taking away people's liberty; 2) telling people not to settle for less than they ?deserve.? Strangely, no attempts...
Media coverage of IMS Health
Posted on January 10, 2008Yesterday?s oral arguments in IMS Health v. Ayotte before the First are getting some media play. At issue is whether the NH Prescription Confidentiality Act violated the free speech rights of data mining companies.
CA1: Army loses conscientious objector case from Copt Doc
Posted on January 09, 2008Hanna v. Secretary of the Army, No. 07-1090. This is a petition of an Army Doctor that was denied conscientious objector status. The petitioner sought habeas relief. The District Court granted it. The First finds agrees because the Department of...
CA1: I think the court is trying to make foreign policy here
Posted on January 09, 2008Maramis v. Mukasey, No. 07-1552 (unpublished) denies a petition for review of an Indonesian Christian. I notice two things, 1) counsel and the IJ didn?t use the term "pattern or practice? (and the First tries to deal with this problem);...
CA1: Certification of pre-judgment bond after bankruptcy was improper
Posted on January 09, 2008Lee-Barnes v. Puerto Ven Quarry, No. 06-2581. This District Court certified an issue under Fed. R. Civ. P. 54(b). The First Circuit doesn?t want to be bothered. The defendant had posted a bond to avoid a pre-judgment attachment. Then the...
CA1: coercive conscription in Columbia not political
Posted on January 08, 2008Tobon-Marin v. Gonzales, No. 07-1113. This is a denial of an asylum petition for review by Columbia brothers. They claim they were threaten by the FARC because of their political beliefs. The First has this gem about to say about...
CA1: directed verdict against one labor defendant can be resolved on harmless error grounds
Posted on January 08, 2008Goulet v. New Penn Motor Exp., No. 06-2487. This is a pretty complex labor law case, in which it is alleged that the union dropped the ball in representing an employee. There was a directed verdict against the employer. The...
CA1: No case about conscientious objectors
Posted on January 08, 2008Something strange is happening in the First Circuit?s website. There are links to Hanna v. Department of the army, but they don?t actually point to the opinion. This case is pretty big, as his lawyer describes it as follows: Sergeant...
CA1: notices of appeal can be born nullities and blossom into things that means something
Posted on January 07, 2008Malloy v. WM Specialty Mortgage, No. 07-1026. This case is the height of appellate practice nerdery. After not responding to discovery requests or complying with various motions to compel, the District Court entered a really long order, which said ?the...
CA1: standard of review in joinder and supplemental jurisdiction in an insurance-coverage diversity case
Posted on January 07, 2008Picciotto v. Continental Casualty, No. 06-2685. The First starts of 2008 with my favorite kind of case: insurance coverage. Or at least I say this is my favorite kind of case. This litigation has been ongoing from some time, and...
Zut Alors de Gall GVRs!
Posted on January 07, 2008I knew they would come, but today I count over 50 Gall and Kimbrough GVRs. Update: Update: SL&P counts 75, and I agree. Of note is that US v. Pho (our coverage here and here and here) from the First...
Jose Padilla has sued John Yoo
Posted on January 04, 2008(For $1 plus fees) See How Appealing (with the complaint); Legal Ethics Forum; and Duncan Hollis at Opnion Juris
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My fiance's check is DD into a local credit union. Bank seems to have a pattern of "invisibly holding" charges from the debit card until just HOURS before his DD is processed (and this is after hours, of course). Over th
Have your fiance take the information you've collected and go into the bank...
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