Appellate Law & Practice

CA1: all the crimes involved in using a stolen social security card to get public housing

US v. Hererra-Martinez, No. 07-1363.  An undocumented immigrant got low income housing using someone else’s ID card.  She was charged with:

• use of another's Social Security number, 42 U.S.C. § 408(a)(7)(B)
• knowingly converting public money or property, 18 U.S.C. § 641
• aggravated identity theft, 18 U.S.C. § 1028A

As to 42 U.S.C. § 408(a)(7)(B), the First says people can be convicted of obtaining benefits besides social security.

As to 18 U.S.C. § 641, the First says that there is no “asportation” requirement built into the statue, and the government need not prove actual loss, and HUD dollars are government property.

CA1: race discrimination case affirmed

Holloway v. Thompson Island, No. 07-2207 affirms a grant of summary judgment in a race discrimination case because the defendants came up with a non-discriminatory motive.  The issue was somewhat complicated by the fact that he had a previous settlement that called for arbitration of disputes arising from that settlement.

CA1: what hath Gall wrought

US v. Tom, No. 07-1074 (unpublished).  What do you do when the government says that a sentence for insider trading is too lenient, but the Supremes GVR in light of Gall?  First you ask for briefing, and then:

remand the sentence for reconsideration in light of the concerns we expressed in our prior decision, the Supreme Court's elucidation of district court sentencing procedure in Gall, and the issues the parties have raised in their briefs to us.

CA1: accrual of warranty claims under the UCC

Trans-Spec Truck Ser v. Caterpillar Inc., No. 07-1476.  This is a long case, which comes down to “the accrual and statute of limitations provisions of the Uniform Commercial Code of Massachusetts to breach of warranty claims.”   Mass. Gen. Laws ch. 106, § 2-725(1) (four years from delivery).  The exception is in (2) for future performance contracts "the four-year clock begins to tick when the breach is discovered or should have been discovered, or when the explicit time period expires, whichever occurs first."  Taking an Eerie guess, the First concludes that a repair promise is a promise for future performance, such as a service plan.  However, the First says that this service plan (and most) are not actually warranties, but rather a promise to fix things that break.  The plaintiff also fails to make an equitable estoppel argument.

Reviewing a grant of summary judgment on a negligence claim, the First holds that a disclaimer of negligence claims wasn’t unconscionable, and besides, the plaintiffs could have sued under the contract theory.

Procedurally, the First explains how a 12(b)(6) motion can be converted into a 56 motion.  The First figures out that because it wasn’t converted to a motion for summary judgment, the District Court and the First Circuit need to only address the pleadings.  The First goes on to note that a District Court judge can “sparingly” consider matters not before the magistrate.  See 28 U.S.C. § 636(b)(1).

A late motion to amend the pleadings to include an unfair trade claim is denied.

CA1: whistleblower case goes nowhere

Lupu v. El Conquistador, No. 07-1659 is a diversity action under Puerto Rico’s whistleblower statute.  On the facts, it seems that the employer had a good enough reason to get rid of him from his probationary job.  The First is able to avoid a lot issues based on the summary judgment record.

CA1: A lesson in 1988 attorneys fees

Torres-Rivera v. Espada-Cruz, No. 07-1806.  This is another case dealing with how to determine attorneys fees under 42 USC 1988.  The plaintiffs take this appeal because they argue that they were not awarded enough.  The First sides with the plaintiffs in large respects.  Because there are multiple litigants as well as some default judgments, the issues get complicated.

First, the First says that whatever the reason, a District Court needs to articulate its reason for awarding or not awarding fees on the record.  Second, in multi-defendant cases, the First must determine whether fees are apportionable or awarded jointly and severally.  Usually things are apportioned by time.  Sounds easy?  Well, in this case the District Court apportioned by “relative liability.”  The plaintiffs don’t like that because one defendant mounted a vigorous defense and another one defaulted. 

The First says the rule in this case is thus:

The rule that we glean from the case law runs along the following lines. Where apportionment is indicated, the choice among available options generally lies within the district court's sound discretion. ...  But when the time required to litigate against one defendant is grossly disproportionate to the time required to litigate against another defendant and the two defendants are not in privity, then the time expended method of apportionment should be used.

A global reduction of 15% “global reduction” because of vagueness of time entries.

Finally, a denial of a supplemental petition for fees for litigating the fee petition is called an abuse of discretion because the District Court didn’t give its reasons.

CA1: Selya talks about discrimination and prosecution

Pulisir v. Keisler, No. 07-1356 denies the petition for review of a Protestant Indonesian.  He was absent from Indonesia for a large portion of the time.  The only issue on appeal with withholding of removal.  But, despite those waivers he does manage to get some traction.

Selya admits that findings of past persecution may be “inferred.”  He also points out that the Ninth Circuit has held that "[t]he more the group to which an applicant belongs is discriminated against, harassed, or subjected to violence, the less the individualized showing an applicant must make to establish eligibility for asylum."  While Selya says that this might be a way to go, he says that the petitioner didn’t explain how the agency made an error of law.

CA1: reselling prescription drugs causes loss

US v. Marti-Lon, No. 07-1040.  This is an unlawful distribution of prescription drugs case.  Essentially this shows how screwed up our prescription drug market is.  “The drug wholesalers then sold the drugs to Martí-Lón at a lower cost because Martí-Lón [falsely] represented that the drugs were meant to be resold in Brazil.”  She resold them stateside, and that is a crime.  (She also falsely claimed to be licensed, but that is another issue.)

But, setting that aside, this comes down to a normal criminal trial, so we got allegations of prosecutorial misconduct, loss calculation, juror misconduct below the fold.

CA1: at sentencing, restitution amounts are different than intended loss amounts

US v. Innarelli, No. 06-2400. After pleading guilty to a “land-flipping” scheme (which seems to be more like a mortgage scheme) that was perpetrated by, amongst other people, a lawyer.  But, the First clarifies some areas of the guidelines that I thought were clear.

Where one starts with a base level of six under  U.S.S.G. § 2B1.1 (a)(2), one goes to the table in that guideline.  2B1.1 cmt. n.3(A) says that for purposes of the guidelines, this should be the greater of “intended loss” (or “the objectively reasonable expectation of a person in his position at the time he perpetrated the fraud, not on his subjective intentions or hopes”) and “actual loss.”  But this is not how to calculate restitution amounts under the Mandatory Victims Restitution Act ("MVRA") 18 U.S.C. § 3663A(a), (c).  The purpose of restitution, the First notes, is not to punish, but to make victims whole.  Their emotional hurt and stuff like that doesn’t factor into it.  So, it gets remanded for that recalculation. 

On top of that, the sentence was reasonable.

Who owns the truth?

A Public Defender once again points to Western Justice, whom he accuses of being a hollier-than-thou prosecutor that just doesn’t get it.  (See also Simple Justice's post).

There are some prosecutors that can smell BS.  There are some that can’t.  There are some that don’t want to, because they believe that a “just” lie is more true than an “unjust” truth.”  (Of course “just” usually means that some guy goes to jail.)

On the defense side, at least people are honest about it: everyone lies.  Cops lie.  Defendants lie.  Witnesses lie.  Cops lie to get witnesses to lie.  Heck, even judges lie.

As dirty as all this sounds it just doesn’t matter.  Our system isn’t about “truth.”  It is about burdens.  Everyone knows this.  I don’t know why Western Justice don’t come to terms with this.