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National Review Online Capitol Hill correspondent David Freddoso is reporting that President Bush is leaning towards appointing Robert Corrente to the First Circuit Court of Appeals over Robert Flanders. Tnx Anchor Rising. Corrente is the US Attorney for RI, and wrote this silly editorial about the Patriot Act, which seems to have been proven false as the FBI. Maybe he will be a good judge. Maybe he won’t get confirmed. Maybe it is a stupid rumor. Who knows?
In addition to the cigarette case, below, there are two more cases which should get read over the weekend. Remember: If you are not working on law this weekend, you are not a real lawyer and you hate America. Have a happy labor day.
Good v. Altria Group, Inc. (Phillip Morris), No. 06-1965. This is probably pretty major. As you know, the cigarette companies market “light”
cigarettes. Some people believe that “light”
means “less deadly” and others think it is a silly marketing technique. The plaintiffs say that even though the
cigarettes are different, they are really just as deadly, because of the way
that people smoke them. The District
Court held that no state law – in this case Maine Unfair Trade Practices Act. Me.
Rev. Stat. Ann. tit. 5, § 207 (2002) -- claims were available, because they
were all preempted by the Federal Cigarette Labeling and Advertising Act (the
"FCLAA"). See 15 U.S.C. § 1334(b) (1998). The
FTC began to establish a regulating scheme, but then reached some kind of an agreement
with the manufacturers over reporting the results of various tests of whatever
is in the cigarettes. Applying the
plurality opinion in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) (and
distinguishing Lorillard Tobacco Company v. Reilly, 533 U.S. 525, 121 S.Ct.
2404, 150 L.Ed.2d 532 (2001)), the First holds that "intentional fraud and
false misrepresentation both by false misrepresentation of a material fact and
by concealment of a material fact” (as opposed to failure-to-warn claims and
warning label issues and issues regarding claims regarding the relationship
between smoking and health) as a state-law claim still has some vitality. Instead, the First holds that “A claim is not
preempted, then, merely because it is "grounded on" the advertising
or promotion of cigarettes with FCLAA-compliant labels.” This is a pretty interesting case – dealing with
all sorts of neat preemption and regulatory issues, and I am obviously not
doing it justice, so you probably need to read it whether you favor smokers, or
their mortal enemies, the cigarette manufacturers.
US v. Turner, No. 03-2608. The defendants were convicted of trying to rob an armored car facility. He was charged under the Hobbs Act under the both the weapon parts and the conspiracy parts. The defendant argues that he was “vicariously entrapped” because “...the FBI agents [via a third party] induced him to participate in the crime so that they could pressure him to provide information regarding the 1990 robbery of the Isabella Stewart Gardener Museum in Boston, about which they thought he had knowledge.” He also makes a Brady argument, but he can’t show prejudice. So, the government really doesn’t need to comply with it, Brady, I guess.
As to sentencing, the First notes that there is a “narrow theoretical “category of defendants that go to trial that might still be taking responsibility – people that challenge the government’s conduct with the entrapment defense. But, this isn’t it. The First’s analysis of this issue is really disappointing.
As to the entrapment claim, the First says it is harmless. It is framed in terms of a jury instruction, and the defendant argues that the “the instruction improperly informed the jury that the government agent must initially ‘target’ the defendant may have more traction.” But, I guess that issue is out there.
A real American would be getting ready to read the rest of this post.
US v. Holloway, Nos. 05-2229, 05-2230. This case starts with a chase of the poor people that drag our country down. The First says, “The record makes it abundantly clear that Holloway never submitted to the officers' show of authority.” In fact, he “Holloway verbally rejected the officers' instructions before escalating his resistance by shoving Lamothe into the officers and trying to flee.” That sounds like something out of South Park. The defendant argues that the initial display of badges was a seizure. But, citing Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177, 185 (2004), the First says that asking for identity isn’t a seizure. The First figures that only after the officers were able to capture the defendant was he actually seized, and the resulting contraband therefore was the product of legal search. The facts of the case show that
The government wins on the argument that he should have been sentenced under the ACCA. His state convictions had charging documents that said that he “assault[ed]” and “beat” someone. So, off to jail he goes, and society is therefore purified. I feel safer and more free already.
UPS Capital Business v. Gencarelli, No. 06-2700. What about a “commercial lender's right to receive a bargained-for prepayment penalty from a solvent debtor”? How does that fair under the bankruptcy code? Answer: look at 11 USC 502 and Welzel v. Advocate Realty Inv., LLC (In re Welzel), 275 F.3d 1308, 1318 (11th Cir. 2001) (en banc), and know that “once a claim for fees is found to be allowable under section [11 USC] 502, it then must be assessed for reasonableness under section [11 USC] 506 in order to determine its priority. Id. To the extent that the contract between the parties calls for unreasonable fees, the fees should be bifurcated and the unreasonable portion should be treated as an unsecured claim”
The First notes that the issues might not have been preserved. But this issue is much, much, more important than the lives of criminal defendants that forfeit issues, so they reach the issue, while citing some authority for why they can reach really important issues.
If you paid to get to this link, you are sure a sucker. This blog is free!
The court holds that 11 USC 502 “affords the ultimate test for allowability, and any claim satisfying that test is, at the very worst, collectible as an unsecured claim.” (This is a slightly different question than whether 11 USC 506 provides that the claim really is secured and to what extent.)
The First emphasizes that this is a solvent debtor.
US v. Mills, No. 06-2444. At first this looks like one of those silly victories for the government that they have been getting in other circuits, where they get to claim that a sentence is unreasonably low and the judges defer to the government’s view of how much of a person’s life should be spent rotting in jail. But, actually, the First does a better job, and shows that the District Court based a sentence on an erroneous factual finding regarding whether the defendant was currently imprisoned on the charge he was sentenced to. The record indicates that he was actual imprisoned on a state charge and had made his appearance pursuant to a writ of habeas corpus ad prosequendum (see, the government likes habeas, too). The First then notes that he received credit for the time spent rotting in jail on his state sentence, so there wasn’t a reason to count it on his federal sentence. Based on prior caselaw, the First holds that “federal detainer is irrelevant to custody in relation to a state offense, credit is not available.”
Then, the First gets a little wacky. It says it has some “concern” and that the District court “should not have taken into account Mills's custody in its sentencing decision, but should have instead left the determination of Mills's eligibility for credit for time served to the Attorney General and the Bureau of Prisons.” But, it cites pre-Booker authority for this proposition, so it is unclear what the heck they mean.
I also wonder if the First would really be so willing to find a judge’s findings to be “erroneous” if it favored the defendant.
Diaz-Ramos v. Hyundai Motor Co., No. 06-2026 holds that the Puerto Rico Antitrust Act and the Consumer Class Action Act does not provide a provide right of action to an individual who seeks to represent a class of injured parties. In this case, he didn’t actually demonstrate and injury in his own right. There is some analysis of the statute, but essentially the First relies on its prior cases interpreting this statute.
US v. Guadalupe-Rivera, No. 05-1939. Hey, the First is back. During sentencing the Court relied upon a confidential juvenile record without disclosing the content of that record to him, in violation of Federal Rule of Civil Procedure 32. The First notes that the Puerto Rican statute was meant to protect the defendant, so there really wasn’t an real interest in keeping it partially secret from the defendant, anyway. This is error, but it is harmless because apparently his lawyer said he knew something about the defendant’s juvenile history. Of course, the First really doesn’t understand that often lawyers don’t know what their client’s real history is because their clients won’t tell them.
The district court refused to conduct an evidentiary hearing on whether certain prior convictions on which the court based his sentence were actually part of the instant offense for purposes of U.S.S.G. § 4A1.1. However, the First says he didn’t show how witness testimony would have made him do any better.
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