On December 28, 2005, the First Circuit did a bunch of things. It dismissed a crazy pro se because she didn’t comply with orders, sanctioned a lawyer for repeatedly seeking punitive damages in an ERISA case; deals with appeal waivers under Booker and pursuant to Shepard; and finds that someone wasn’t continuously mentally ill enough to warrant tolling of a statute of limitations for 1983 purposes. If your New Years eve is not rockin’ enough read on. It also did a strange 6th amendment right to counsel dance, and an even stranger res judicata dance.
US v. Diaz-Diaz et al., Nos. 03-1803, 03-1804, 03-1992 is yet another appeal of the convictions resulting from an “FBI investigation of corrupt police officers engaged in the protection and transport of narcotics in the Commonwealth of Puerto Rico.” (See some of our other coverage here). Like the others, they include a number of claims by a number of defendants, but the facts don’t matter too much.
If you resolve to only link to publicly available materials in the future, you can read on... starting with the most interesting.
On December 29, 2005, the First explains what immigration stuff it can review – concluding that it lacks jurisdiction – but tolls the removal period anyway, so that this foreigner, with ways different than our own, can leave voluntarily, and not, as many people would like, be shackled. The court also affirms the denial of a motion to exclude certain evidence that was collected during an “exigent circumstances” search. You made read on, but only if you are a member of the Federalist Society and refrained from immoral activity on New Years Eve.
I will probably combine cases from various days into one post, but this one is deserves its own post.
US v. Rodríguez-González, No. 04-2333, vacates an earlier decision of the First Circuit (our coverage) for conspiring to commit credit card fraud, and for aiding and abetting bank fraud and for money laundering. 18 U.S.C. §§ 371, 1344, 1956(a)(1)(h) (2000). The defendant plead guilty, but objected to being punished for the actions of his co-conspirators, because he didn’t participate in all of the conspiracy. The judge told him, “[E]ven if you didn't start at the beginning, you are to be held accountable just as if you had been there since the beginning and you would be responsible for the conduct of the co-conspirators, ever since the conspiracy started." The court analyzes U.S.S.G. § 1B1.3, and notes that under United States v. Colin-Solis, 354 F.3d 101, 103 (1st Cir. 2004), regardless of the guilty plea, “for sentencing purposes, the court ‘is required to make an individualized finding as to [the conduct] attributable to, or foreseeable by, that defendant.’” In making these findings, the court is not bound a stipulation that a defendant is subject to certain enhancements, but, should determine what weight to give it, because there might some mistake of fact or law at play here.
This case is not to be confused with United States v. Rodriguez, which has a similar name and similar holdings, but comes from the 2d Cir. See our coverage here.
This is somewhat of a companion case to Wright v. Allstate Insurance, 415 F.3d 384 (5th Cir. 2005). Basically, FEMA has the authority to promulgate regulations preempting state law contract and tort claims arising from insurance claims handling by a "Write Your Own" insurance company.
The Sixth Circuit has found an appeal filed 30 days after an order entered establishing the amount of an award of attorney fees, but more than a year after the party was found to be in contempt of a court order, was untimely. Gnesys, Inc. v. Greene, No. 04-6048. Even if a ruling of contempt is pursuant to a statute mandating an award of attorney fees, an appeal of an contempt order must be made within 30 days of the finding of contempt, even if attorney fees have not yet been awarded.
The Sixth Circuit has ruled that the "Unique Circumstances" doctrine does not apply to lengthen the 14 day period by which FRAP 4(a)(6) allows a district court to extend the period for filing an appeal. Bowles v. Russell, No. 04-3262. Appellant did not receive notice of the district court's ruling, and thus missed the time for filing an appeal. When Appellant notified the district court of this situation, the district court set a date 17 days into the future for filing a notice of appeal. Appellant, relying on the district court order, filed his appeal 16 days after the extension was granted. The appeal was dismissed for lack of jurisdiction.
Robinson was pulled over by the police. They found stashed inside a Crown Royal bag a stash of cash. Who needs a wallet when you’ve got a velvety Crown Royal treasure sack?
The FBI began forfeiture proceedings against the drug money eight months later. They sent a certified letter to Robinson’s home address, but the letter was returned five months later as "unclaimed." The FBI then sent four new letters to six other addresses Robinson was known to have lived at. Each was similarly returned. The FBI then published notice in the New York Times for three weeks. When nobody responded, the FBI declared the money administratively forfeited.
Robinson was subsequently indicted and convicted of drug trafficking. He got twenty years. He then moved for return of his money, arguing that the FBI’s notice of forfeiture didn’t satisfy due process. Specifically, he argued that the FBI delayed too long after seizure to begin the forfeiture process.
Most significant to the court is the eight month delay between seizure and the initiation of forfeiture proceedings. Apparently this is a long time in the world of forfeiture. But the Court shrugs it off because the FBI was in the middle of investigating Robinson’s drug activities. So the FBI had good reasons for the delay. The Fifth Circuit doesn’t want to force the executive to indict people before they otherwise would just to make the forfeiture timely.