Appellate Law & Practice

CA5 - Crawford not retroactive

Lave v. Dretke (Garza, J.)

The Fifth Circuit holds that Crawford is not retroactive.  Judge DeMoss dissents!

CA5 - Collateral Discovery Order

Goodman v. Harris County (Clement, J.)

In this 1983 suit, the district court ordered the police officer defendant to submit to a psychological examination.  The reasoning being that the officer planned to introduce an expert opinion concerning how he would have likely reacted to particular events at the time of the incident.  The court of appeals holds that this discovery order is not immediately appealable.

CA5

Mwembie v. Gonzales (Smith, J.)

Judge Smith smacks down the Immigration Judge for making dubious credibility findings, but nonetheless denies the petition for review.

CADC: Concerned Senators: You are not our friends

SCOTUSblog points to an order from the DC Circuit, in which they bounce back amicus briefs in the detainee cases from the Senators who compromised the detainee treatment into ambiguity, who now want to explain what they really wanted to do, had they not been hoodwinked by each other.

CA1: Pro se wins on Rooker-Feldman overreaching

Galibois v. Fisher, No. 05-1576 (unpublished) Mr. Galibois really doesn’t like Senator Kerry.  So, he demonstrated against his campaign.  The police didn’t like this, so they “interfered” with his demonstration.  He sued in state court.  The state court dismissed for failure to state a claim.  He filed a similar action in federal court.  The District Court dismissed because “under New Hampshire law, the state court judgment had preclusive effect because Galibois never sought leave to amend the complaint. Since Galibois's federal claims arose ‘from the same incident and involve[d] the same factual scenario as the claim he alleged in the state court petition,’ the court concluded that Galibois, in essence, was seeking federal review of the state decision.”  Therefore, it dismissed on (I always contended were strained) Rooker-Feldman’ grounds.

Keep reading.  Even if you voted for Kerry.

CA1: conspiracy, Booker, crawford

US v. Brooks, No. 04-1894 (unpublished).  In an opinion by Judge Lasker of the SDNY, denies a Booker remand because there is no evidence in the record that the District Judge would have departed below (and no error otherwise preserved).  The court also rejects an argument that enhancements for “leadership role in the conspiracy and obstruction of justice” constituted clear error.  The court also explains that perjury serves as a trigger for an obstruction of justice enhancement. 

Regarding a “multiple conspiracy charge” the court finds that there was no reason that the jury should have been given such a charge, as the evidence seemed to indicate that there really were two conspiracies, and the nature of the jury’s verdict supported that theory. 

The court finds that statements of co-conspirators are non-testimonial for Crawford purposes. 

Finally, the prosecutor’s statement that:

So you can either take the defense version, they clearly suggest that these guys will say anything in order to convict these men in order to earn a lower sentence or at least the recommendation from the government, or they have to comply with the plea agreement. I'll leave it at that.

was not improper vouching.

CA1: FOIA and TWA800

Sephton v. F.B.I., No. 05-1820 is an appeal from a grant of summary judgment in favor of the FBI in a FOIA action, which sought documents related to a celebrated crash of a “passenger airliner bound for Paris crashed in the Atlantic Ocean ten minutes after departing from New York.”  The District Court had found that based on affidavits (which were not conclusory) that the FBI had conducted a reasonable search, and the plaintiffs had not shown that the FBI acted in bad faith.  On appeal, the plaintiffs argue that based on “Fed. R. Civ. P. 8(d), the FBI's failure to file an answer to his FOIA complaint amounts to an admission to all of the allegations contained in the complaint, including the allegation that ‘the FBI acted in bad faith when, in response to plaintiff Sephton's legitimate FOIA request . . . it did not conduct an adequate search of its records . . . .’” Acknowledging a bit of a circuit split, the court concludes that either 1) 5 U.S.C. § 552(a)(4)(C) describes an agency’s proper response as an “answer or otherwise plead,”; and 2) the error wasn’t raise below, and it wasn’t plain.

CA1: Selya’s Replacement

Senator Lincoln Chaffee recommends former Justice Robert G. Flanders, Jr. of the Supreme Court of Rhode Island to replace Selya.  I wonder if this means that there won't be as many big words used in the First.  Tnx CA1FDblog

You can read about all the stock he owns here.

Judicial Conference of the Sixth Circuit

The 66th Sixth Circuit Judicial Conference will be held May 17 -20, 2006 at the Marriott Detroit Renaissance Center. This is an open Conference and all attorneys admitted to practice in the federal courts in the Sixth Circuit are cordially invited to attend. For more info: http://www.ca6.uscourts.gov/internet/index.htm The Eastern District of Michigan Chapter of the Federal Bar Association has announced that it will offer scholarships for a limited number of public service attorneys, newer lawyers and law students who are members of the Michigan State Bar or students at law schools located in Michigan. For more info: http://www.fbamich.org/index.cfm.cfm?location=20&RecordID=40

CA1: associational standing

Council of Insurance v. Juarbe-Jimenez, No. 05-2607 affirms an injunction against the Puerto Rican agency that regulates insurance brokers based on the “facial unconstitutionality of provisions of the Puerto Rico Insurance Code which impose restrictions on the ability of nonresident licensed insurance agents and brokers to participate in the Puerto Rico insurance market, thus advantaging resident agents and brokers.”  Essentially the code seems to be about as discriminatory as it gets (against non-Puerto Rican agents).  But, the real issue is whether the Council had standing, because the defendant argued that the “Council had not demonstrated that any of its members had suffered an injury in fact, which meant it had not shown that at least one of its members would otherwise have standing to sue in its own right.”  The court essentially applies traditional association standing principles, and says that the defendant is misreading the record regarding who was actually injured, and notes that there is no actual obligation on the part of associations to specifically declare which of their members are injured and how, and “What was important was that the Council's President declared, under penalty of perjury, that such members existed.”  There was some ambiguity in the actual judgment entered by the District Court, on appeal, the parties agreed to clear it up, and the First remands for the limited purpose of reducing that agreement to judgment.  Insurance Journal comments here.