Appellate Law & Practice

Selya on Blogging

The Boston Globe reports that US District Court Judge Nancy Gertner has been a contributor to Slate.  Judge Selya, who is known for his constant use of big words in cases that send poor people to jail says this:

I think it would be a great strain on me to be careful not to say anything that could come back and make it seem like I prejudged a matter when it actually came before me,

But, here is the problem: Do judges really have to make an effort to appear not to be biased, when everyone knows where their sympathies lie?  Wouldn’t it be better to have a nice stream of  consciousness from every judge, so we could know if they are predisposed to rule a certain way.

Tnx. HA, SL&P.

CA1: affirmance for failure to follow local rules on summary judgment

Sanchez-Figueroa v. Banco Popular, No. 07-1013.  This appeal of an ADA case seems to really be affirming summary judgment for failure to comply with Puerto Rico’s Local Rule 10(b) (translation of exhibits from Spanish to English); and having a counter-statement of facts that wasn’t concise. 

The First seems says it isn’t opinion on the underlying issue, but the plaintiff seems to have suffered some kind of mental breakdown due to some interaction at the office. 

However, based on whatever record does make it to summary judgment, the First says that the condition appeared temporary.

What does it look like when I blog

Some people have what it looks like when I blog.*  Just for fun, here is a screenshot.  As you can see, I use only the hippest open-source systems and software.  However, since I am a lawyer I will deny all knowledge of computers if you met me in person and will feign helplessness.  That stuff is for nerds and paralegals.   

*Oh, fine.  This whole post was an excuse to link to a Nancy Grace video.

CA1: First tees up retroactivity issue

US v. Joseph, No. 04-1477 (unpublished).  This is a fairly interesting “crack guidelines” issue.  The defendant was sentenced before Booker.  While the First rejects his Booker issue and affirms the sentence, the First remands so that he can move for a reduction under the new, retroactive crack guidelines, and argue that the:

Guideline which makes the amendment retroactive, section 1B1.10, is itself unconstitutional, because according to Joseph, the provision provides limitations on the court's discretion once the court calculates the amended Guidelines range.

CA1: almost no relief on “role-in-the-offense” determinations

US v. Rodriguez-Guerrero, No. 07-1256 (unpublished).  The First makes it clear that “Role-in-the-offense determinations typically are factbound and, therefore, we will reverse the denial of minimal participant status only for clear error.... “ therefore “Our standard of review is not appellant-friendly.”  Yet, somehow, “ The line between minor and minimal participation is fuzzy.”  Because there is a “plausible” basis for concluding that the defendant wasn’t a “minor” participant, the defendant loses.

CA1: No under Fed. R. Crim. P. 35 relief for providing assistance

US v. Ellis, No. 07-1997.  A guy serving a 25-year sentence who claims to have provided assistance to a “warden of the federal prison where he was once incarcerated” moved under Fed. R. Crim. P. 35 to shorten his sentence.  What kind of assistance.  “...it suffices to say that the assistance was of value to the warden in running the prison.”  But, according to the convict, the warden made some promises.  “[T]o transfer Ellis to a lower-security prison and to write a letter to the sentencing court to "create an opportunity to have the sentencing judge consider reducing [the defendant's] sentence[] as a reward for [his] service." Only an idiot would believe such a promise.  Despite the fact that the convict was an idiot, the warden did write a letter, and the sentencing judge got it, the US Attorney did not move under R. 35 for a reduction.  The court didn’t move on its own motion to reduce the sentence.  The US Attorney, seeing that the convict was dumb enough to believe that a warden could help, did nothing either.  A law-abiding person would have retained a lawyer.

Thirteen years later, after the sentencing judge died, the convict moves himself under R. 35.  The District Court denied the motion and ordered the case “closed.”  The First, of course, says that such a “promise” can’t be enforced by the warden, because 18 U.S.C. § 3582(c)(1)(A) only gives the director of the Bureau of Prisons the power to file such a motion, and the BOP didn’t do this unless the prisoner had medical problems. Moreover, the current R. 35 has a 120-day limit.

The First adds that the warden doesn’t have necessary or apparent authority to bind the BOP or the US Attorney.  A long discussion of “agency” principles and how they impact the government (mostly under government contract law) ensues. 

Anyway, the moral of the story is clear: prisoners should retain counsel before “providing” assistance. 

CA1: A reported judgment in a kosher habeas case where claim is mooted

Guzzi v. Thompson, No. 07-1537.   This judgment was dated on the 14th, but wasn't made public, it seems.  Since the parties agree that the decision should be dismissed as moot because the state stopped doing what it was doing (not giving a non-Jew kosher meals).  Decision below can be found here.  But, the First, in the judgment adds some other stuff:

• The decision on vacatur rests in the equitable discretion of this court. While mootness alone does not ordinarily give rise to vacatur, we have recognized that vacatur "may be appropriate where mootness arises . . . through the unilateral action of the party prevailing below." ...
• We find that the equitable considerations favor vacatur of the action.
• As in Wal-Mart and Kerkhof, vacating the judgment preserves the ability of both sides to litigate complex issues, here under the Religious Freedom Restoration Act.
• As well, federalism concerns support dismissal.

Not that big a deal

For some reason, the Boston Business Journal thinks that it is notable that Judge Sandra Lynch is going to become the first lady chief judge of the First Circuit.  Now, come on, of all the milestones of feminism, is this one really that notable.  There are plenty of female judges out there.

I did have some really deep thoughts on the recent "Don't Ask Don't Tell" decision from the Ninth, but for now the above snark will have to act as a replacement.  I trust that will be satisfactory. 

CA1: remand to the IJ because he didn’t explain

Sok v. Mukasey, No. 07-2113 remands back to the IJ on a withholding of removal claims because “the BIA and IJ gave a legally insufficient explanation of why Sok failed to prove that she suffered past persecution in Cambodia, we grant the petition with respect to the withholding claim.”  The First says that there are six events that establish persecution, and it can’t seem to figure out how the IJ ruled on them.  Specifically, the First says that it is simply wrong to call “threats” “mere threats” because threats can be persecution.  And, in this case, the threats seems credible. 

Secondly, the IJ seems to have found a “massacre” to be incredible because the petitioner didn’t present a police report.  In fact, the IJ seemed to have assumed that a police report would be generated, even though there is some indication in State Department reports that the opposite is happening.  So, the First remands so that the agency can do a better job.

CA1: no double-counting in identity-theft sentencing

US v. Sharapka, No. 06-2715.  This is an appeal sentence for 121 month sentence for identity theft.  The First says that the enhancement for “more than 10 but fewer than 50 ‘victims’” was okay, despite the fact that the defendant had argued that the issuing banks were the “victims.”  The government argued that the numerous vendors were the really losers.  The First concludes that “We believe that the district court properly relied on both the testimony regarding the conversation with American Express and the Sentencing Guidelines explanatory notes, which defines “victims” for purposes of § 2B1.1(b)(2)(A) as including ‘individuals, corporations, companies . . .’ See U.S.S.G. § 2B1.1(b)(2)(A), cmt. n.1.”  Strangely, this information was based on a proffer from the government.  The First rejects the idea the since government took an inconsistent position at a restitution hearing (because the vendors didn’t submit statements), it should not be entitled to rely upon that theory.

The First also holds that an enhancement under 2B1.1(b)(10)(A)(I) for “possession of ‘device-making equipment’” wasn’t a double counting with § 2B1.6 (mandatory consecutive sentence for identity theft).  The First concludes that “We believe that the plain language supports the government’s argument. § 2B1.1(b)(10) lists different offense characteristics, separated by the conjunction ‘or,’ whose presence may justify a two-level enhancement.”  But notes that “Had the court imposed the enhancement under § 2B1.1(b)(10)(C)(i) (“unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification”), then § 2B1.6 would preclude application of a two-level enhancement.”