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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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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Posted on July 02, 2008Loyo-Arevalo v. Mukasey, No. 07-2054 (unpublished) denies the petition for review of a Guatemalan.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...
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Standards of Practice in Civil Protection Order Cases
The American Bar Association has recently published its new Standa...
WHAT'S THE POOP WITH THE APPELLATE TERM?
In 565 Tenant’s Corp. v. Adams, a cooperative shareholder fa...
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...
I am being accused of hitting a 7 yr old child with my car, but I honestly don't think I hit the child. The Child was never knocked down, ran around my car to go back to ball practice, and was walking around with the par
You are in a serious situation. Get a lawyer immediately. Make no statements to ...
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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...
I am being accused of hitting a 7 yr old child with my car, but I honestly don't think I hit the child. The Child was never knocked down, ran around my car to go back to ball practice, and was walking around with the par
You are in a serious situation. Get a lawyer immediately. Make no statements to ...
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