Appellate Law & Practice

CA1: qualified immunity in crazy suicide case

Berube v. Conley, No. 06-2644.  Oh great.  The First Circuit, on interlocutory appeal concludes that some cops are entitled to qualified immunity for using excessive (and deadly) force.  The defendant apparently, in the course of an interrupted suicide wanted to go to the police station to “raise a little hell.” He said as much in a deposition.  He doesn’t really remember what happened before the police shot him, but he seems to have a hammer.  The First concludes “It may well be true that Conley continued to fire as Berube fell to or lay on the ground.... Conley’s actions cannot be found unreasonable because she may have failed to perfectly calibrate the amount of force required to protect herself.”  The result in this case isn’t that bad.  The problem is that these kinds of cases can be used to attribute qualified immunity to all sorts of bad behavior by the police.

CA1: identity theft stuff

US v. Jimenez, No. 06-2044.  This is an identity theft case.  The big news is that stealing a dead guy’s ID can be “aggravated identity theft” under 18 U.S.C. § 1028A(a)(1) because it is a false identity based on real information.  The First then (as usual) rejects the “rule of lenity” saying that it only applies when there is a “grievous” ambiguity in the statute.  But of course.  Person means “dead guy.”

The district court admitted the evidence but restricted the use of the "Anarchist Cookbook," preventing use of the title of the document and allowing use only of the section entitled "How to Create a New Identity."

The First says that evidence is relevant, because it shows how someone learned how to commit the various acts of identity theft.  Likewise, notes about his various thefts are also considered relevant.   So not much here.

CA1: First takes sides on 32(h)

US v. Vega-Santiago, No. 06-1558.  The big news is that the First holds that Federal Rule of Criminal Procedure 32(h) applies to post-Booker variances,  as well as to Guidelines departures.  The First acknowledges that it is splitting with the Seventh.

But, this doesn’t really help the defendant as the court concludes that he received reasonable notice.  Why?   “[Citing Burns v. United States, 501 U.S. 129 (1991)] ... Vega learned of the court's intention to sentence outside the Guidelines during the colloquy that preceded the formal sentencing, and Vega's attorney had the opportunity to respond at length to the court's view that a variance was warranted on the ground that this was an atypical carjacking, involving a home invasion.”  So, minimal notice is required where the court relies on “record facts.”  There is a lot of discussion in here about what kind of notice is required, but the court snatches defeat from the jaws of victory, because “record facts” were “known to counsel.”   

CA1: Political discrimination, Massachusetts style

McCarthy v. City of Newburyport , No. 07-1438 (unpublished) affirms a grant of summary judgment in a 1983 action by a cop against his former bosses.  This cop apparently got into a bunch of spats with his bosses, and when asked to turn over his gun, tossed it onto his boss’s desk.  He was suspended.  He claims that the disciplinary actions against him were motivated by certain letters to a newspaper, but the department produced an explanation for suspending him that had nothing to do with the letters.  Equal protection and substance due process claims are denied.  State law claims about emotional distress, and defamation also fail.  Other substantive claims against other officers (for not doing things) simply fail because the plaintiff couldn’t produce any evidence that they were motivated by things that would violate the First Amendment.

Oral Statements and Secret Sentencing

Briefcase8, an Ohio Blog, describes how prosecutors will hide the ball on discovery (only to have officers come out with all sorts of statements of defendants), and describes the evolving law of “secret” victim impact statements.

CA1: Interesting sentencing case on the reasonableness of minimal sentences and cooperation, contrition, and a bunch of other stuff

US v. Milo, No. 06-2185.  As is becoming more common the government appeals a sentence.  This defendant (a fairly middle-class one, in case you were wondering) cooperated with the government, and his sentence was deferred.  When it came time for sentencing, the government (pursuant to its agreement) moved for relief from the mandatory minimum under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, as the defendant had been a big help to the government.  The government still sought 75 months (half what was recommenced by the probation officer as per the guidelines), and the defendant argued to stay out of jail. The judge gave him “five years of supervised release with the first six months to be served in a community corrections facility, and a fine of $50,000."  The government claimed that it was surprised by the sentence.  The government appealed, and argued that the sentence was unreasonably low.  At first this appears to be a thoughtful opinion, but it includes some language which renders it overly deferential to the government.

... Read on to save your soul...

CA1: IJ affirmed with reservations about applying law school values to 3d-world politics

Ouk v. Gonzales, No. 07-1413 (10/29/07).  The petitioner is from Cambodia.  The Immigration Judge had held that some intimidation was not by the government but rather by armed “thugs who were in disagreement with the respondent's political philosophy."  Right.  Thugs think about political philosophy a lot. 

Anyway, the First says that the IJ’s statements about credibility were not clear.  The IJ said “I want to be clear that I have no basis for evaluating this testimony and concluding the respondent to be non-credible. Rather, in my evaluation I don't really believe it to be plausible nor is it convincing.”  The First concludes that:

In failing to articulate the particularized basis for his finding, the IJ's conclusion could be read as making a broad generalization that no one, including Ouk, would risk his employment in order to advocate for a political viewpoint or party. Such a statement is, on its face, simply incorrect. Indeed, at the heart of many successful asylum claims is a person who takes extraordinary risks in order to advance a political or social cause to which he is deeply committed.... but "the IJ must, if he or she chooses to reject [petitioner's] testimony as lacking credibility, offer a specific, cogent reason for [the IJ's] disbelief."

Whatever the case, the asylum petition is still affirmed.  It seems that the IJ employed a “law school” mentality to asylum petitions.  In law school we are taught to act mature.  We are taught to never say anything that appears to be outside the main stream, because law firms don’t like to hire mavericks.  The IJ seems to think that in fledgling democracies everyone acts like a freakin’ 2L doing on-campus interviews or like a summer associate. 

CA1: Hatian asylum petition denied

Journal v. Gonzales, No. 07-1109 (10/29/07).  The petitioner is from Haiti. He wasn’t able to prove that he would be persecuted if he returned. 

CA1: If the government backs down on a tax lien, the matter is moot

Johansen v. US, No. 06-2037 (10/29/07).  After a couple divorced, the government asserted a tax lien on the wife’s house based on the government’s tax liabilities.  The wife went to court to quiet title.  The government counterclaimed to foreclose the property.  Then the ex-husband paid the tax liability.

Once the government got its money, it filed documents saying that the case was moot, and it no longer sought to foreclose, and was no longer asserting the lien.  The plaintiff argues that this whole thing had hurt her creditworthiness, and she could still obtain attorneys fees under the Internal Revenue Code, 26 U.S.C. § 7430, and the Equal Access to Justice Act, 28 U.S.C. § 2412(d). 

The government argues that the plaintiff was suing under a waiver of sovereign immunity to “quiet title” and therefore does not have a free-standing cause of action for money damages.  The First says that because the equitable relief that she sought is no longer sought, then she can’t get money damages because the matter is moot under Lewis v. Continental Bank Corporation, 494 U.S. 472, 477 (1990) (“conclusive character” defines mootness.)   

Read, or something.

CA1: loss calculation affirmed

US v. Codarcea, No. 06-2426 (10/29/07) affirms a sentence for bank fraud based on the defendant’s role in unauthorized ATM withdrawals targeting Bank of America.  The total amount came to over $350,000.  To give you some perspective, this amount is a “King’s Ransom" for a poor person, or a $350,000/night hooker for a rich person.  It is also the price of “One Art.”  It’s all relative, you know.   At bottom this is really a loss calculation.  The defendant argues that the government did not establish the parameters of the conspiracy.  But the First saves the calculation by holding that “... at Codarcea's sentencing hearing the district court carefully scrutinized the evidence and delivered a lengthy and well-reasoned analysis determining that it was more likely than not that the total loss across all three periods was the result of one overarching conspiracy, that Codarcea was involved in multiple aspects of the conspiracy throughout its duration, and that therefore the total loss was reasonably foreseeable to Codarcea.”  The First concludes that “it is clearly more likely than not that all of the fraudulent activity underlying the Bank's total loss of $363,266.59 consisted of acts taken in furtherance of an unauthorized ATM withdrawal scheme hatched by defendant and his co-conspirators.”