Appellate Law & Practice

To Louisiana lawyers: A suggestion

If you're a Louisiana lawyer, you've probably just received from the LSBA an application for section membership. If you're a Louisiana lawyer reading this blog, then you're probably interested in appellate practice, in which case you should join the LSBA's still relatively new Appellate Section. Dues are a mere $15 per year. Membership already stands at a respectable 92, which puts us ahead of nine other sections in terms of membership – not bad for a section that was created a little over a year ago. Benefits include automatic subscription to the section's listserv, an e-mail discussion group that has already directly benefited my own practice about a half-dozen times in the past year.

If you want to join but have already sent in your section-membership application, don't fret: you can join on line.

CA1: how to deal with plurality decisions

US v. Johnson, No. 05-1444, remands based on a petition for rehearing, which was held in abeyance based on the SCOTUS’s decision in Rapanos v. United States, 547 U.S. ___, 126 S.Ct. 2208 (2006).  The decision is scholarly and well-written, and therefore gets two thumbs up from me.  I wish they would put as much effort into cases involving poor people.  As you may recall from the earlier opinion (our coverage here), the civil defendants were sued for discharging pollutants into federally-regulated waters without a permit in violation of § 301 and § 502 of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1311, 1352 [I think there is an error here, because I don't think there is a section 1352]. 

CA1: judicial estoppel and the fact that there is no constitutional right to be free from a government conspiracy to put you in jail

Thore v. Howe, No. 06-1627 (10/27/06).  Is a 1983/excessive force case.  Unfortunately, the criminal defendant (and later civil plaintiff) plead guilty and, in his plea colloquy admitted that he had assaulted various officers.  As many point out, it is a common practice in some jurisdictions to always charge injured people with resisting arrest.  This keeps the lower classes in line.  So, in the 1983 action, the District Court holds that judicial estoppel prevents the defendant from bringing the excessive force case, and besides “Heck v. Humphrey barred assertion of the § 1983 malicious abuse of process and conspiracy claims against all defendants and that, in any event, no claim was stated under § 1983 as to either malicious abuse of process or conspiracy.” 

CA1: Crawford and collateral evidence

US v. Thomas, No. 04-2386 (10/27/06) brings up a long-simmering issue: the degree to which a confidential informant can be questioned his prior stealing of drugs.  Applying FRE 608(b) and rejecting a 6th amendment challenge, the court holds that introducing another witness to rebut the informant’s denial that he stole the drugs would be collateral evidence.  The court also refers to the advisory notes that separate the issue of “character for truthfulness” from “contradiction” and “bias” which should properly be analyzed under 402 and 403. 

Unfortunately, the First drops the ball in its Crawford analysis, and simply holds that:

Second, turning to the Confrontation Clause question, in the post-Crawford v. Washington, 541 U.S. 36 (2004), era, a “balancing of interests” is still called for and the result must depend “upon the circumstances of the case.” White v. Coplan, 399 F.3d 18, 24 (1st Cir. 2005). [(our coverage here)]Here, in refusing to allow a trial within a trial on a collateral matter, the trial court struck the proper balance.

This is disappointing.  The First could have done better on this issue.

On the facts of the case, the evidence is held to be sufficient. 

CA1: mob violence and Christians in Indonesia

Wijaya v. Gonzales, No. 06-1431 (10/27/06) (unpublished).  In this asylum case involving ethnic Chinese (and Christians) in Malaysia Indonesia, where the IJ found the petitioners to be credible, but that they were not actually persecuted.  In essence, the petitioners were nearly injured by a mob, but “The incidents recounted by Wijaya, though clearly frightening to her, do not meet the high standard for showing past persecution.”

CA1: appellate practice and construction law fun

Constructora Andrade v. American International Insurance, No. 05-2303 (10/27/2006).  Strangely, this is a real case about appellate practice.  These are rare.  You can read on, or something.

CA1: Post-booker explanations and cooperation

US v. Hernandez, No. 06-1027 (10/27/06 (unpublished) affirms a within-guidelines sentence over a charge that the lower court didn’t explain its reasoning. The First looks at the record, and decides that the judge did a good enough job at explaining his reasons.

One interesting thing is that, perhaps, the defendant was seeking to have the District Court review whether his cooperation with the government was helpful or not. The court, somewhat cryptically writes, “The court declined to give him credit for those other attempts both because the government did not deem them helpful and because they admittedly involved further criminal activity on his part.”

CA1: another sterilization case

Gao v. Gonzales, No. 05-2330 (10/26/06).  A decision of the BIA – holding that a Chinese catholic that had a number of children and was sternly lectured and lacked credibility – is upheld.  His due process argument is dismissed, because it was not raised before the BIA.  This decision is probably most noteworthy for the fact that he claimed that many have been arguing that the issue of “Chinese forced sterilization” is “in play.”  However, in this case, the threats and procedures (performed on his wife) occurred 15 years prior to the petitioner’s departure from China.

CA1: presidential effects of arbitration awards

Massachusetts Nurses v. North Adams Regional, No. 05-2799 (10/26/06).  This labor dispute involves a labor dispute between nurses and their hospital.  The nurses claimed that the hospital was understaffed, in violation of their contract.  The nurses won. Then, it seems that similar complaints arose, and the nurses, rather than filing another grievance, went directly to the District Court.  The court holds this is not a case where the earlier arbitration awards creates a precedent that would allow the nurses to bypass the arbitration procedure, because the arbitration award was not intended to have a prospective effect and the situation wasn’t really identical anyway. 

Free Louisiana appellate stuff

In about an hour, I will present the appellate portion of the Bridging the Gap seminar organized by the Louisiana State Bar Association. For anyone who may be interested, I've uploaded my seminar materials, PDF of my PowerPoint presentation, plus a few extra goodies. With the exception of one article (How to Write an Appellate Brief), all this stuff deals with Louisiana appellate procedure. If you're interested, please visit The (New) Legal Writer to browse and download.