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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

CA1: Columbian asylum claim fails

Posted on April 28, 2008
Vallejo 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, 2008
US 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, 2008
Hannon 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, 2008
CNN 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...

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911 call of the week

Posted on April 25, 2008
Dear 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, 2008
Washington 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, 2008
Davignon 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, 2008
US 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, 2008
Ramos-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, 2008
Ly 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, 2008
Dear 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, 2008
In 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, 2008
According 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, 2008
Phal 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, 2008
Marcoux 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, 2008
Morales 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, 2008
Zayas 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, 2008
US 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, 2008
A 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, 2008
Arias-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, 2008
Chardon-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, 2008
US 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, 2008
Morales-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, 2008
Livick 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, 2008
Torres 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, 2008
US 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, 2008
Mississippi 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, 2008
Evans 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, 2008
Dear 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, 2008
Thompson 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...

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