Appellate Law & Practice

GTMO unlawful command influence ruling in Hamdan

On 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 military commissions, but most of what is in the ruling is the kind of things that many people have speculated or had direct knowledge of, but this is the first time it appears in writing.  In fact, it is a rare “judicial” finding of fact regarding political actions  

It also contains the accounts of various Senators (i.e. McCain, Graham), judicial nominees (Haynes), and people everyone likes to talk about.  Also, General Hartmann wanted “sexy” cases. 

CA2: Wu-Tang Clan describes law students and drug dealers

What 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 rules everything around me, together everyone achieves more." See Wu-Tang Clan, C.R.E.A.M., on Enter the Wu-Tang (36 Chambers) (Loud/RCA Records 1993) ("Cash Rules Everything Around Me, CREAM, Get the money, Dollar, dollar bill y'all . . . ."); see also Wyclef Jean, Sweetest Girl (Dollar Bill) (Columbia Records 2007) ("Cos I'mma tell you like Wu told me, cash rules everything around me . . . .").

Sunny Hostin’s normal failures to research

Sunny 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 by diverging into British family law disputes.

Now, granted, we all think it is a bad idea for someone to represent themselves at trial.  But, her “commentary” seems woefully under-researched.

Her “prime” example of a pro se defendant is “Hollywood private eye Anthony Pellicano.”  Strangely, in his case, the jury is “sill out.”  She claims that because he wasn’t a seasoned lawyer he didn’t address all the evidence the prosecution mustered. The problem with this argument is that “seasoned” lawyers often will choose not to address some of the evidence the prosecution mustered.  It is a tactical decision.  Because she is talking to the lower classes she does not explain what evidence was mustered at trial.

By the end of the article, her broad glosses are just plain silly.  She starts listing people that represented themselves, and why it was a bad idea.

Heather Mills: In this lawyer's opinion, she could have gotten more money from Paul McCartney with a lawyer.

Wait a minute.  Ms. Mills was not a criminal defendant.  Ms. Mills was not even anywhere in the United States.  Moreover, because Ms. Hoston doesn’t provide any analysis of how Ms. Mills could have done better, it seems that Ms. Hoston is making it up.  So, there is no reason that Ms. Hoston should be trusted.

John Allen Muhammad, the convicted "D.C. sniper": This week, he's writing to prosecutors from death row, asking their help in ending his appeals.

Okay, this guy was a little nuts.  However, he only “represented himself” during opening statements (perhaps as a bid to avoid being cross-examined).  He was represented by lawyers throughout the rest of his trial.

Dr. Jack Kevorkian: He was convicted in 1999 of second-degree murder in the death of a patient.

Kevorkian was a little nuts.  Or at least a bit of an attention whore.  But, who could blame him?  His prior trials (with lawyers) ended in mistrials.  So, who could really blame him? 

Colin Ferguson: He managed to alienate everyone in the courtroom before being convicted of the 1993 shootings on a New York commuter train that killed six people.

Nuts.  But would have have really done better?  Is that what Hostin is trying to say?

Ted Bundy: He was convicted of killing sorority sisters in Florida and put to death. People brought frying pans to the prison on the day he was executed.

What does the “frying pans” have to do his self-representation at trial?  Do all prosecutors think it is cute to “fry” someone.  Why does it matter that the victims were “sorority sisters.”  Bundy, on the other hand was a law student.  Is Hoston really arguing that if he was represented by a lawyer he would have been acquitted and nobody would have brought frying pans to the prison?

Then she concludes with:

In fact, I can't think of a defendant who represented himself or herself as well, or better, than a lawyer. So maybe I'm biased, but lawyers are trained professionals.

First of all, let me provide a link to a story about a pro se defendant getting an acquittal in a murder trial. 

Secondly, I agree people that represent themselves are making stupid decisions.  But it doesn’t mean that they are necessary going to better at trial.  Perhaps if Ms. Hostin could provide real specifics (instead of talking down to people) we might have a real conversation here.

CA1: two unpublished Chinese immigration decisions

In 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 on vagueness and credibility grounds because he can’t really show that he is that persecuted in China, as his family ran a grocery story and lived openly. 
• Lin v. Mukasey, No. 07-2301 (unpublished).  Another Chinese petitioner.  This person raises a “family planning laws” argument.  Again, mostly a credibility issue here.

Okay, there is more.

I am conflicted.  I think most talk of legal ethics is misplaced.  I also think that Judge Posner’s talk of law and economics is silly.  Legal Ethics Forum contains a link to the NLJ, which talks about how Posner has criticized Immigration Judges.  (The article contains a number of embarrassing legal errors (such as confusing IJs with ALJs, but since NLJ is just trying to suck up to BIGLAW, nobody cares.) 

Now, here is the rub.  Most people would probably agree that many (perhaps most) immigration judges are not taking their job too seriously.  And, their job, is to generally find facts on specific cases and to treat people fairly.  Sometimes there is a legal issue, but let’s set those thing aside.  However Posner doesn’t go into detail about which immigration lawyers are doing a bad job and why not.  But hey, I guess bashing unnamed lawyers that represent poor people for a living is always fair game.

CA1: Apprendi pipeline case sees briefly sees light in IAAC context

Martinez-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 when she “misconstrued” Apprendi and conceded (to the First Circuit) that he would be subject to a higher sentence.  But the First says that in the underlying case, the higher sentence would have been warranted because the indictment did state enough (i.e. that there were “multi-kilograms” of cocaine in drug conpsiracy.)  Likewise, the First says that it had found in appeals of his codefendant’s cases that a failure of the jury to find drug quantity was harmless error.  Therefore, the statutory maximum was life, and there were no real Apprendi claims.  Therefore, appellate counsel’s concession didn’t make a difference.

The First ends by saying that 28 U.S.C. § 2255 motions can’t be used to make Booker retroactive.

CA1: dealing with a strained reading of claimed exemptions from a bankruptcy estate

In 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 filed for bankruptcy.  In their list of assets, they listed the lawsuits as an account receivable.  The bankruptcy court authorized Barraso’s lawyer to represent both Barrasco and the estate in prosecution of the suits.  But then Barrasco started asserting that the suits were not part of the estate anyway, and objected when the bankruptcy trustee “unilaterally negotiated a settlement” for about $100,000 on a $170,000 claim, which called for payment of the funds to the estate.  The bankruptcy court held that “...Barroso had exempted not the law suits but rather only a $4,000 partial interest in each suit, so the trustee could settle the suits and simply pay a total of $8,000 to the debtors.”  There was a suggestion of bad faith.  The First says that the determination of what has been claimed as being an exception (and not part of the estate) is really a factual matter of interpreting the schedules filed by the debtors, but a legal matter of “how a reasonable trustee would have understood the filings under the circumstances.”  So, looking at the schedules, the First says that Barrasco’s reading is implausible, it can’t figure out how the debtors discounted the contract disputes from well over $100,000 to $4,000, rather than listing the value as “unknown.” 

CA1: First remands for a real resentencing when mandate not followed

US 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 “trimmed the original judgment without sentencing him anew” as the government told it to.  (This matters because Booker might allow the defendant to escape a life sentence).

But, the First resolves the issue on the “law of the case” doctrine (the “mandate rule”) part of it, and holds that the District Court didn’t really take the letter and spirit of the mandate seriously, and the District Court should have read the mandate “like a statute.” 

The First then points out that the prosecution – as much as the District Court – is at fault, because it seems to have tricked the court into thinking that it had made a finding (that the crime was in furtherance of a drug conspiracy) that would subject him to life sentence. The First says that this trick deprived the defendant of his ability to allocute at sentencing which is “scared.”

CA1: transporting a minor is a crime of violence even post Begay

US 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. USSG §4B1.2(a).  Why?  The guideline defines “crime of violence” as “otherwise involves conduct that presents a serious potential risk of physical injury to another.”  Sure, Selya says, there wasn’t any force, but this is a “residual provision.” But, the analysis is fairly straight-forward (even if it ignores the fact that there are several other actors besides the defendant involved in subjecting the “victim” to harm).

Read on...

Waking up after 30 years and wanting to know about the constitution

Norm 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.

SDO @ CA1

Boston Globe reports here.

CA1: mea culpa on “cache” case

Commentator “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 rather ambiguous term “cache” which is a computer term of art.) This was not an “images stored in a browser cache” case, but a “hoard” case.  Therefore, a lot of my anger at the First was misplaced. 

CA1: all the crimes involved in using a stolen social security card to get public housing

US 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.S.C. § 641
• aggravated identity theft, 18 U.S.C. § 1028A

As to 42 U.S.C. § 408(a)(7)(B), the First says people can be convicted of obtaining benefits besides social security.

As to 18 U.S.C. § 641, the First says that there is no “asportation” requirement built into the statue, and the government need not prove actual loss, and HUD dollars are government property.

CA1: race discrimination case affirmed

Holloway 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 that called for arbitration of disputes arising from that settlement.

CA1: what hath Gall wrought

US 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 sentence for reconsideration in light of the concerns we expressed in our prior decision, the Supreme Court's elucidation of district court sentencing procedure in Gall, and the issues the parties have raised in their briefs to us.

CA1: accrual of warranty claims under the UCC

Trans-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. 106, § 2-725(1) (four years from delivery).  The exception is in (2) for future performance contracts "the four-year clock begins to tick when the breach is discovered or should have been discovered, or when the explicit time period expires, whichever occurs first."  Taking an Eerie guess, the First concludes that a repair promise is a promise for future performance, such as a service plan.  However, the First says that this service plan (and most) are not actually warranties, but rather a promise to fix things that break.  The plaintiff also fails to make an equitable estoppel argument.

Reviewing a grant of summary judgment on a negligence claim, the First holds that a disclaimer of negligence claims wasn’t unconscionable, and besides, the plaintiffs could have sued under the contract theory.

Procedurally, the First explains how a 12(b)(6) motion can be converted into a 56 motion.  The First figures out that because it wasn’t converted to a motion for summary judgment, the District Court and the First Circuit need to only address the pleadings.  The First goes on to note that a District Court judge can “sparingly” consider matters not before the magistrate.  See 28 U.S.C. § 636(b)(1).

A late motion to amend the pleadings to include an unfair trade claim is denied.

CA1: whistleblower case goes nowhere

Lupu 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 able to avoid a lot issues based on the summary judgment record.

CA1: A lesson in 1988 attorneys fees

Torres-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 in large respects.  Because there are multiple litigants as well as some default judgments, the issues get complicated.

First, the First says that whatever the reason, a District Court needs to articulate its reason for awarding or not awarding fees on the record.  Second, in multi-defendant cases, the First must determine whether fees are apportionable or awarded jointly and severally.  Usually things are apportioned by time.  Sounds easy?  Well, in this case the District Court apportioned by “relative liability.”  The plaintiffs don’t like that because one defendant mounted a vigorous defense and another one defaulted. 

The First says the rule in this case is thus:

The rule that we glean from the case law runs along the following lines. Where apportionment is indicated, the choice among available options generally lies within the district court's sound discretion. ...  But when the time required to litigate against one defendant is grossly disproportionate to the time required to litigate against another defendant and the two defendants are not in privity, then the time expended method of apportionment should be used.

A global reduction of 15% “global reduction” because of vagueness of time entries.

Finally, a denial of a supplemental petition for fees for litigating the fee petition is called an abuse of discretion because the District Court didn’t give its reasons.

CA1: Selya talks about discrimination and prosecution

Pulisir 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 does manage to get some traction.

Selya admits that findings of past persecution may be “inferred.”  He also points out that the Ninth Circuit has held that "[t]he more the group to which an applicant belongs is discriminated against, harassed, or subjected to violence, the less the individualized showing an applicant must make to establish eligibility for asylum."  While Selya says that this might be a way to go, he says that the petitioner didn’t explain how the agency made an error of law.

CA1: reselling prescription drugs causes loss

US 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 [falsely] represented that the drugs were meant to be resold in Brazil.”  She resold them stateside, and that is a crime.  (She also falsely claimed to be licensed, but that is another issue.)

But, setting that aside, this comes down to a normal criminal trial, so we got allegations of prosecutorial misconduct, loss calculation, juror misconduct below the fold.

CA1: at sentencing, restitution amounts are different than intended loss amounts

US 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 I thought were clear.

Where one starts with a base level of six under  U.S.S.G. § 2B1.1 (a)(2), one goes to the table in that guideline.  2B1.1 cmt. n.3(A) says that for purposes of the guidelines, this should be the greater of “intended loss” (or “the objectively reasonable expectation of a person in his position at the time he perpetrated the fraud, not on his subjective intentions or hopes”) and “actual loss.”  But this is not how to calculate restitution amounts under the Mandatory Victims Restitution Act ("MVRA") 18 U.S.C. § 3663A(a), (c).  The purpose of restitution, the First notes, is not to punish, but to make victims whole.  Their emotional hurt and stuff like that doesn’t factor into it.  So, it gets remanded for that recalculation. 

On top of that, the sentence was reasonable.