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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: 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...
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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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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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