Appellate Law & Practice

CA1: cooperating gullible convicts get what they deserve

US 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.  Nevertheless, he thought he had an agreement.  The government thought he was gullible.  “The chief of the office's criminal division rejected his overtures. She took the position that the defendant's assistance had not been "substantial" and, thus, did not warrant the filing of a Rule 35(b) motion to his behoof.”

Selya agrees and the District Court agree.  The guy is gullible.  Gullible people stay in jail.  Only if there is an unconstitutional motive for misleading a defendant can the courts intervene (says Selya).  Therefore, justice is done.

Selya does use a lot of big words, in order to ensure the gullible guy in jail that at least one judge knows how to use a dictionary.  Justice is done.

CA1: forfeiture in employee stock plan okay

Weems 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 discount rate), but requiring them to forfeit said stock if they “voluntarily” leave the company before they “vest” (usually after two or three years). 

Despite the fact that most of the people involved in litigating this issue probably tell everyone they meet that they work in “securities” this comes down to a fairly straight-forward contract claim.  Not really that glamorous.  The First says that there was no breach of a contract. 

Someone found a memo which says that the purpose of this thing is to punish people that go work for competitors, and therefore it is an unlawful restrictive covenant.  (There are far, far, worse things companies do to their employees.)  But the First says this is fine, because forfeiture occurs whether or not they work for a competitor.  This doesn't really ring true, and it seems they are not taking this part of the argument too seriously.

Similarly, the First treats the rest of the common-law contract claims (under Florida law) with almost no degree of seriousness. 

Another one of Judge Bybee’s Torture Memos released

A 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 legal reasoning is great.

Unfortunately, because there are so many redactions, it is difficult to tell if the entire memo has prefect grammar and style, so it might be that the government is hiding the fact that Bybee wasn’t detail-oriented and went to a TTT.

CA1: Armenian petition denied

Kechichian 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 the First seems to accept this uncritically. Before the IJ she didn’t raise the argument that petitioner claims that she is a member of a social group – people with mental illnesses.  The BIA didn’t address that because “we are an appellate body.”  (Whatever.  There is a reason people don’t take the BIA seriously.)  The First doesn’t look at this, and says there isn’t a due process argument.  And, it says a denial of a remand to look at that new evidence wasn’t an abuse of direction. 

CA1: due process issues in Bankruptcy reorganizations

Arch 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 wasn’t a “known” creditor, and besides it knew of the bankruptcy proceedings, anyway.

The Bankruptcy Court said that Arch knew that Nationwide was about to sue them, as there was an ongoing dispute complete with specific written claims.  Nevertheless, the actual accounts of both companies didn’t reflect amounts owed in the way that Nationwide claims they are.

The First notes that the Bankruptcy Code doesn’t really provide the remedy for failing to inform a creditor of an impending reorganization.  So, the First looks to constitutional due process principles.  Applying New York v. New York, N.H. & H. R. Co., 344 U. S. 293 (1953), the First says that Nationwide should have been included on the list.

CA1: gender discrimination case lacks smoking gun

Garcia 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, and contains no “smoking guns” (though some inconstant statements).  While this would seem to be a run-of-the-mill gender discrimination failure, I wonder why the magistrate thought otherwise. 

CA1: Logan gets to build its taxiway

Winthrop, 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 to prepare a supplemental Environmental Impact Statement under NEPA 42 U.S.C. § 4332(c).   There are some interesting issues there regarding what makes airports late and loud.  The new taxiway is already being built.

After finding Art. III standing, the First finds that it wasn’t arbitrary and capricious to conclude that the FAA wasn’t presented with significant new information.  The rest seems to be affirmed largely on the facts regarding what noise models to use.

Then the first concludes by bashing the petitioners when they move to supplement the record with additional documents.  But, in doing so, the First does some funny stuff.

It writes:

the petitioners would like included forty-six documents which the FAA has withheld in response to a Freedom of Information Act ("FOIA") request filed by petitioners. In an entirely separate proceeding regarding this FOIA request, a district judge has reviewed those forty-six documents in camera and agreed with the FAA that the documents pertain to internal deliberative processes and were properly exempted from disclosure under FOIA. Petitioners have appealed that ruling as a separate matter, not presently before us. Documents pertaining to internal deliberative processes are irrelevant to this petition.

Wait?  Is the First really saying that even though the FAA refused to produce some documents, and the petitioners are proceeding under FOIA, it can’t hear this issue.  I mean, what if these documents show that the FAA wasn’t exactly playing with a good deck.

A pure procedural justice practice tip

When 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.

As 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 can do it?”  (Heck, judges say this, too – and many judges think that “harmless error” is a substantive rule of decision rather than a standard of review.)

Anyway, Indignant Indigent describes, “...People v Fredrick, 2008 NY Slip Op 06056 [4th Dept 7/3/08] [here] [where] Fourth Department not only reversed a conviction due to unobjected to prosecutorial misconduct, but in doing so the Court expressly refused to consider whether the misconduct contributed to the verdict.”

Essentially the prosecuted vouched for all sorts of people, going so far as to speak of a cop’s “batting average” in cases (in which he sent all sorts of poor people to jail), and then got a witness to tell the jury that the defendant was so poor that he was incarcerated since his arrest.

What is notable about this is that the Fourth Department didn’t go into all that crap that the First Circuit  does about curative instructions and how the defendant’s guilt was so great that the prosecutor can do whatever he wants.   It doesn’t even matter that the prosecutor’s conduct wasn’t preserved.   The rule is clear: you do the wrong thing, the conviction gets reversed. 

But what a long 9/16ths of a second of sheer terror it was

By 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 with their lives than write the FCC complaining about a nipple that has terrorized children from coast to coast. 

As Justice Scalia said, “The Nation will live to regret what the Court has done today.”

CA1: another ERISA standing case

Evans 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 defined contribution plan have standing to sue as "participants" under [§ 502(a)(2) of ERISA, 29 U.S.C. § 1132(a)(2)].

The appellees argue that the plaintiffs are not seeking “benefits” but “damages.”  The First figures that “the full ‘benefit’ to which the participant is entitled by a defined contribution plan is ‘the value of [her] account unencumbered by any fiduciary impropriety.’”  Then, they justify their conclusion with a bunch of cites to other circuits and policy reasons.  So, whatever the case, the plaintiffs have standing and the District Court has jurisdiction. 

The backstory involves the fact that the plan invested in the employer, W.R. Grace’s stock.  This stock wasn’t doing too well because of the asbestos-related product-liability litigation. 

CA1: First misses an opportunity to take vindictiveness issue seriously

US 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 right to appeal his sentence.”  Even though I don’t think that the government was behaving vindictively, the First doesn’t take the issue seriously.

It says that the “waiver of the right to appeal represents just another bargaining chip in the plea bargaining process, a process that "flows from the mutuality of advantage to defendants and prosecutors, each with his own reasons for wanting to avoid trial and/or appeal.”  Then, it declares that just because the defendant didn’t present an actual “factual” basis for a finding of vindictiveness there was none.  But, it is pretty obvious that the First isn’t taking this issue seriously.  Obviously, a prosecutor COULD be vindictive.  But, it isn’t clear whether the First even thinks there is a remedy for that, and what sort of indicia would support such a claim.

The First does make a couple of interesting points about recent sentencing jurisprudence:

of the three decisions cited by Defendant, only Kimbrough addresses a district court's decision-making. Rita and Gall are directed to the decision-making of an appellate court

However, in the end, the First rejects the idea that the District Court felt constrained by the guidelines.  However, because this is a crack case, he gets  remand to file “a motion for reduction in sentence pursuant to the recent Guidelines amendment that lowers the sentencing range for certain categories of offenses involving crack cocaine. U.S.S.G. Amend. 706.”

This doesn't seem right

Let me get this straight.  According to this sign, if someone tows my car, I "agree" to a lien. 

CA1: another crack appeal waiver

US 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 for something involving crack. 

Anyway, the First disagrees with the defendant's argument that the District Court's description of the appeal waiver the sentencing hearing wasn't that good.  That goes nowhere.

A pro se argument as to IAC goes nowhere because his claim that his lawyers told him he would get a lower sentence isn't in the record. And, like in US v. Borrero-Acevedo, No. 06-2655.if someone with a crack sentence wants it reduced because of the guidelines change, they need to go to the District Court on a motion not the court of appeals.

CA1: First decides a rule of lenity case for defendant

US 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 used represented the identity of another person.  This person just used a lot of completely fake information to defraud banks. The First realizes that there is a split here, but it seems to come down on the right side, and makes it clear that the rule of lenity still exists.

There are some interesting arguments made about the correct way to interpret the statute, and whether “knowingly” is an adjective or an adverb, and whether one word can modify a whole long string of words.  So, this case is worth reading even if you represent middle class people or real people with real money.

CA1: no prejudice in unamended NTA

Malonda 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, and an incorrect statement in a notice to appear regarding the grounds of removeability (that was not amended) deprived her of something.  But the First says that she is not prejudiced. 

CA1: The trick to avoiding liability is not letting the officers be identified

Pineda 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 to a question of whether the defendants were supervising the rough cops and whether they presented “an ‘affirmative link‘ between the defendants' supervisory conduct and the subordinate police officers' alleged constitutional violations.”  The First says that the plaintiffs didn’t present any evidence of such a link, and therefore, because some cops figured out how to not be identified the defendant can’t even get to trial.  Somewhere out there, someone figures that justice was done.

CA1: mandate or law of the case?

New England Power Co v. FERC, No. 07-2418.  This is a very long piece of litigation.  Essentially it comes down to whether FERC in ordering a power company to change its rates applied in the past properly ordered it to apply a lower interest rate to such rates.  While a lot of this is really about energy rate nerdery, it really comes down to whether FERC understood the scope of a previous remand, and whether it was properly applying the “law of the case” doctrine.  But the First says that FERC did such a bad job addressing the issues that it is just going to remand to do it again.  Cudahy dissents saying that FERC acted reasonably, and that when dealing with a mandate issue, the First should not go back and broaden the mandate. 

Good luck on the bar exam

A 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 that she is objectively wrong.  The bar exam is a test of legal abilities and  worth as a human being.  Please take this time to wish everyone you know studying for the bar good luck, and remind them that the bar exam is a test of their worth as a human being as well as their legal abilities.

CA1: the twists in an asylum denial and appeal

Bakuaya 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 pretty bad, because the people there don't appreciate human rights like we do.  The BIA reversed, and remanded to the IJ to rule on the claim for voluntary departure.

The First says that what the BIA did was okay.  They didn't really second-guess the IJ, but instead made a legal ruling about whether the petitioner was really politically oppressed.