Appellate Law & Practice

CA1: Cyr dissents in Albanian asylum case

Cuku v. Mukasey, No. 07-1273. An IJ found the petitioner not to be credible, relying on inconsistences and problems with chains of custody.  The First says that is okay.  It also says the conduct of the IJ is okay.  Normally this is all I say.  But this draws a dissent from Judge Cyr.  Since the Fir st seems to have been rubberstamping a lot of immigration appeals recently, I figure that the dissent is worth analyzing.

Cyr points out that the agency did not completely adopt the IJ’s decision.  Indeed, it rejected some of the IJs grounds.  Cyr says that the First is misreading the record.  Cyr explains how reviewing the combination of IJ decision and board affirmance leads to crappy judging.  He writes:

By denying Cuko’s petition for review on this basis, the majority essentially condones and rubber-stamps an undesirable policy and practice: an IJ silently may collect what he perceives as testimonial discrepancies of a latent kind which would not be readily apparent to the asylum applicant or his counsel, offer the applicant no contemporaneous opportunity to explain why his perception is faulty, and then blindside the applicant after the fact with an asylum decision premised entirely on his untested adverse credibility findings. This practice is not only at odds with our clear precedent, but would subvert the essential truth-seeking function of asylum proceedings.

...

Finally, from a broader policy perspective, I would suggest that this case is a prime example of what is so defective with many immigration proceedings. While the IJ reasonably might have accepted Cuko’s credibility arguendo, and then denied his asylum application either on the ground that his ill treatment did not rise to the level of “persecution,” or that the country reports refuted his fear of any future persecution (indeed, we have affirmed many IJ opinions to the effect that country conditions in Albania have changed significantly), the IJ deliberately chose silently to collect a catalog of perceived testimonial discrepancies during the hearing, and then base his final decision solely on Cuko’s lack of credibility. This may seem a relatively insignificant and academic distinction, but to an asylum applicant, it likely affects his sense that he has been given a fair opportunity to state his case for asylum. He is removed to his home country simply because he is a liar, and not because he has not proven past persecution or a well-founded fear of future persecution.

He also goes through the things that the IJ did and concludes that they were not really supportable.  Whatever.  I never though that the First was taking these things too seriously.  For other problems with the First’s Albanian-Asylum “jurisprudence” see here.

CA1: bus drivers protected by NLRA

Five Star Transportation v. NLRB, No. 07-1316 enforces a decision of the NLRB, which found that Five Star Transportation “engaged in an unfair labor practice in violation of § 8(a)(1) of the National Labor Relations Act ("Act") when it refused to hire, or even consider for hire, six school bus drivers who wrote critical letters... to the Belchertown School District ("District") in an effort to dissuade it from granting Five Star a bus services contract...”  The decision below wasn’t a complete victory for the union, as “The NLRB concluded that Five Star had violated § 8(a)(1) only as to the six drivers [that wrote regarding their concerns that a new contract wouldn’t effect their salary], because only those drivers' actions were protected by the Act.”  The applicable drivers were ordered reinstated and given back pay with interest.  The petitioner argues that the drivers are not employees because they were then employed by the previous contract.  But, the First says that the statute, 29 U.S.C. § 152(3), covers them because Five Star is an employer.  They also argued that the letters were not “concerted activity” within the meaning of the Act, but the First points out that the record indicates that yes, indeed, not only was it concerted, but Five Star knew.    Finally, the First says that under In re Am. Golf Corp. (Mountain Shadows), 330 N.L.R.B. 1238, 1240 (2000), enforced sub nom. Jensen v. NLRB, 86 Fed. Appx. 305 (9th Cir. 2004), this really was a union dispute.  (The First analyzes all prongs of Mountain Shadows, so it is worth reading, if this is your area.)

More on Ben Kuehne (lawyer indicted for opinion letter)

Legal Ethics Forum reports that:

Regarding Ben Kuehne…  we've heard the extraordinary rumor -- we repeat "rumor" -- reported by the WSJ Law Blog is that DOJ has replaced the prosecutor and is considering dropping the charges.

See our earlier coverage here.

A prosecutor speaks out

What prosecutors are thinking.  Western Justice peers into the mind of a prosecutor.  Here are his thoughts about our system of justice.

Yadda, yadda, yadda. Although they won’t admit it to your face, most prosecutors AND defense counsel are saying to themselves [during guilty pleas]: “Who cares about the Constitution? I’ve got places to go, things to see, cases to prepare, let’s move it along here!…..”

He also says “The qualities of a good prosecutor are as elusive and as impossible to define as those which make a good gentleman The qualities of a good prosecutor are as elusive and as impossible to define as those which make a good gentleman.”  Tnx APubDef.

Update: He appears to take issue with my either my quotation, or my misunderstanding the purpose of his blog.

Now, I don’t mean to bash him, so please don’t get me wrong.  In fact, out of most of the prosecutor (or ex-prosecutor) blogs, his is probably one of the least-self serving. However, most prosecutor blogs or public statements are neither funny nor insightful. Here is why. 

• Comedy is there to comfort and the afflicted, and afflict the comforted. Prosecutors, even on bad days, are just not afflicted. Even if they are losing every case (as sometimes happens) they are never in the hopeless positions that criminal defendants often find themselves in. Indeed, they can even satisfy themselves that their losses are just an example of “justice prevailing” and the “government always winning” in a criminal matter. Making jokes about criminal practice, which can (and does) ruin peoples’ lives every day just seems smug.
• Public mocking by prosecutors is almost always directed at defendants (or their attorneys). In private, however, prosecutors mock cops. Especially cops with less than six years of post-secondary education. They make fun of their educations (or lack thereof) and the way police reports are written. Somehow this humor (no matter how mean-spirited) never makes it into public statements by prosecutors.
• Although prosecutors have senses of humor when they share it with the public it usually comes off as mean-spirited.  Catalogues of “dumb criminals” or courtroom antics are nothing more than making fun of someone who was too stupid to make an honest living or commit a crime on such a sophisticated level that he wouldn’t get caught. The implication is that the reader (and perhaps any prosecutor) is smarter than these people who can’t even resort to a life of crime properly. When defense lawyers do it, they are bemoaning the “bad facts” that their clients face.  I guess it is no surprise that I have never seen a prosecutor subscribe to the belief that every criminal sentence represents a failure of society to educated people in a way that would have prevented such a crime from being committed in the first place.
•  With few exceptions, most public statements be prosecutors follow the adage that “A simple lie is more true than a complex truth.” To a prosecutor speaking to the public, the law needs to be distilled into some assertion of authority. So, when, for example, asked about the law of “locker searches” in high schools, a prosecutor will say something along the lines of “I am a lawyer, and I know that kids can be searched.” While there is some nuance in that statement, there is no way in hell that a prosecutor would ever explain the contours of a high school student’s Fourth Amendment rights with any detail.
• Prosecutors generally don’t want to discuss weaknesses in their positions. So they don’t. (On the other hand, a defense lawyer’s “position” usually becomes moot after a trial, so they are free to acknowledge that a given position was “week.”)

Despite all this, there are actually a lot of ethical, fair, and intelligent prosecutors out there.  The problem is that when they say when they get an audience.

CA1: class certification reversed for now

In Re New Motor Vehicles Canadian Export Antitrust Litigation, Nos. 07-2257, 07-2258 & 07-2259 a class certification, but says that the District Court can try again on a more complete record.  It is fairly complicated, and antitrust litigation bores me, but it involves claims that the car companies unfairly prevented people from taking advantage of differing exchange rates to arbitrage cars.

By now, you should have read the case.  Especially if you practice “antitrust” law.  There is absolutely no excuse for waiting until after the weekend passes to read a case that came out on Friday.  If, for some reason, you “practice” in this field and didn’t read the case, turn in your bar card immediately.

Anyway, for everyone else, here is what you need to take away from it.  The case is a good overview of the law in the area, but if you were a real lawyer you would have read it by now

• because the US dollar has lost its value, plaintiffs no longer have standing to sue under section 16 of the Clayton Act.

• [For purposes of FRCP 23]...

Under this circuit's approach, in our view, a searching inquiry is in order where there are not only disputed basic facts, but also a novel theory of legally cognizable injury....
plaintiffs needed to present "basic facts" that the fraud-on-the-market presumption could be invoked, even though its actual applicability was to be resolved at trial. PolyMedica, 432 F.3d at 19 [our coverage here]. Our review of the district court's determination of whether or not the fraud-on-the-market presumption could be invoked was based not on the level of detail in the district court's explanation, but on "whether the evidence supports its determination to apply the presumption." Xcelera, 430 F.3d at 512 [our coverage here]. In Xcelera, for example, the district court actively evaluated the testimony of two competing experts and preliminarily credited the plaintiffs' expert, a determination this court upheld -- after surveying the expert testimony ourselves -- on clear error review. Id. at 512-16.

Anyway, I don’t think it would come as any surprise that the First Circuit would limit the role of a jury where some law firm can claim that “big money” is at stake.  Whatever.  Strangely, the First has no problem affirming any and all criminal convictions over “sufficiency” challenges, allowing the jury to find all sorts of inferences.  Torrella dissents on this point.

CA1: 1983 state action failures are not a matter of subject matter jurisdiction

Alberto San, Inc. v. Consejo de Titulares, No. 07-1605.  While this case involves an office condo, the complaint included 1983 claims as well as claims that various statutes were unconstitutional.  The District Court dismissed for lack of “subject matter jurisdiction.”

The First says this isn’t the way to do it.  The First says that a 1983 claim that is dismissed for a lack of a state actor is a merits issue.  However, the First says that the 1983 claim fails because they didn’t actually state a claim in the complaint.  (This case provides a good guide to how to plead 1983 actions where there is not “direct” state actions.)

On the other hand, the Declaratory Judgment Act, 28 U.S.C. § 2201 doesn’t help, because it requires a some other theory upon which the defendants could prevail.  However, the court reverses the grant of attorneys fees.

CA1: what it takes to stop poor people

US v. Soares, No. 07-1479. A guy was driving with his headlights on in a high-crime area (i.e. poor).  The cops saw “furtive movements.”  A “pat-frisk” found a gun.  The facts get a little silly as a defendant is termed “verbally abusive” when he says that he was stopped for “driving while black.” Applying United States v. Romain, 393 F.3d 63 (1st Cir. 2004), the First comes up with some stuff about how the officers reasonably believed that their safety was at risk or something.  Then it says something about how the “character of a neighborhood” doesn’t substitute for reasonable suspicion, but it then sends a message that the “character of a neighborhood” really does matter.

CA1: First finds a way to use Snyder to screw up a religious Batson challenge

US v. Girouard, 07-1244. We don’t see many “consumer product tampering in violation of 18 U.S.C. § 1365" convictions. (“Girouard was a nurse with the veterans' administration.... She pricked or cut transdermal patches through their wrapping, thereby removing some of the narcotics they contained. She left the patches in the drug cart for later use on patients.”)   The defendant contends that the jury selection was tainted by some religious selection, which violates Batson v. Kentucky, 476 U.S. 79 (1986).  The First declares that they never held that Batson applies to religions.  (Read: prosecutors, go ahead, discriminate against Buddhists all you want.)  But, rather than directly addressing the issue, the First says that it wasn’t raised. 

The AUSA made all sorts of, quite frankly, embarrassing strikes.  Black people.  Jewish people.  People involved with their church. 

CA1: a drug conviction with all the normal trimmings

US v. Page, Nos. 06-2006, 06-2007 affirms a conviction for “ possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and conspiracy, id. § 846.”  Immigration and Customs Enforcement (ICE) seems to have been running a rather large and complicated sting operation. Anyway, getting to the objections.

There was cop “expert” testimony about the m.o. of drug dealers.  The First says it really isn’t expert testimony but rather lay-witness testimony and not subject to normal disclosure to the defense.  The First seems more eager to bend on this issue then to explain why a copy testifying about the methods of criminals is not offering “expert” testimony.

Don't go away.  There is more below the fold.

Appellate Review coverage of Jencks Act split

We covered United States v. Colón-Díaz, 2008 WL 787389, *22 n. 8 (1st Cir. Mar. 26, 2008) here.  Appellate Review provides more here, describing the split between whether “Government Agents Always Preserve Rough Interview Notes When Those Notes Are Incorporated Into a Formal Report?”