Appellate Law & Practice

CA1: First writes preachy opinion on drinking and driving in ERISA context

Stamp v. Metropolitan Life, No. 07-1061.  This case is one of a line of disturbing cases that hold that people that die in drunk driving accidents for purposes of his Accidental Death and Dismemberment ("AD&D") life insurance policies.  The First says that it is “Carefully” considering the issue, but really, it is not.  The context is an ERISA case, where it is reviewing the plan administrator’s determination.

Anyway, this seems like a decision made out of political fear.  Applying Wickman v. Northwestern Nat'l Ins., 908 F.3d 1077, 1084 (1st Cir. 1990), The First says that people that drink and drive are so aware (i.e. reasonably foresee) of the risks of drinking and driving that they know how dangerous it is, and therefore, anything that results isn’t an accident.  Then they cherry-pick dicta about drinking and driving.  Whatever. 

Torruella dissents, and gives a nice point-by point rebuttal.  However, I am just too angry at the majority.  Maybe this is something that should go en banc.  Maybe we should stop pretending that people that drive drunk intend to kill themselves, but are merely not thinking.

CA1: Unaccredited law school wins against own students using lawyers from accredited law school

Rodi v. Southern New England Law School, No. 07-1770.  The earlier opinion is here, and our coverage is here. A related case is here.  Take it from me.  Despite lawyer’s protestations about how the ABA’s accrediting regime is unfair or something, lawyers simply don’t like people that went to unaccredited law schools.  It fact, it is considered rude to even mention their names in some circles. So, when a plaintiff sues an unaccredited law school claiming “ claimed fraud and a violation of a consumer protection statute” that was “provisionally accredited” you know where this is going.  Of some interest is that the dean tried to convince this unfortunate student from transferring to a real law school.  But, since real law schools have no time for people that associate with unaccredited law schools, he was denied admission.  This time around, the only issues are whether his reliance was reasonable as a matter of law.  His failed attempts to transfer to a real law school apparently show that he wasn’t really relying on what the deans were selling.  Then he claims that but for the dean trying to convince him not to transfers he would have pursued a PhD.  The First has no time for that.  This guy was going to an unaccredited law school, and writes “if the deans' respective statements were not enough to convince Rodi to relinquish his pursuit of a transfer, it seems equally unlikely they would have been enough to persuade Rodi to shelve his pursuit of a Ph.D.”  What they really mean is “Get serious.  By associating with an unaccredited law school, he demonstrates that he is not PhD material.”  Finally, the First points to the boilerplate language that the school used to say that it isn’t making representations, but “The school, through its disclaimer, essentially urged Rodi and other SNESL students to ignore statements such as the one made by Dean Larkin.”  Moreover, since the ABA was really in charge of accrediting, there isn’t a way that it COULD have made such a representation. 

Anyway, after all the snark, there is some important stuff in here about motions for recusal v. motions for reassignment.  Essentially, unless the First says that a case should be reassigned, it isn’t an abuse of discretion not to reassign it.

CA1: when is it too late to be truthful ?

US v. Rodriguez-Ferreira, No. 06-2176 affirms a sentence of a guy that argues that he was entitled to a safety valve reduction under U.S.S.G. § 5C1.2(a).  It all comes down to whether he truthfully provides the government with the 411 on his crimes.  The dispute seems to involve how many drug-running flights the defendant was involved in.  But, the First says that “Rodriguez’s statements throughout his interactions with the court and with the government were, up until the very last moment, equivocations and half-truths” and therefore since the guideline is based on whether the disclosure comes before the hearing, he didn’t comply.  The First concludes, “Where, as here, a defendant puts the government on a starvation diet - providing morsels of information when the defendant is presented with the truth – he is engaged in artful manipulation, not complete and truthful disclosure.”  Awwe. 

CA1: Justice O’Connor writes on ERISA

McGill v. Minnesota Mutual, No. 07-2668 (unpublished).  In this ERISA case, the plaintiff argues that the actual policy differed from the policy he applied for, and therefore they were guilty of fraud and misrepresentation, and a breach of a fiduciary duty.  Applying Virginia law and basic contract principles, the Justice O’Conner write that applications for insurance are not insurance, and therefore, even though he claims he never saw the policy, he can’t argue that it was altered.

CA1: Justice O’Connor writes opinion on wiretap act

US v. Conley, No. 07-2587 (6/26/08).  This opinion is written by Justice O’Conner (retired).  It begins, “Appellant claims the introduction into evidence of phone calls between him and Kenneth Durgin, an inmate in a correctional facility, violated the Federal Wiretap Act, 18 U.S.C. § 2510 et seq.”  It fails because she finds that the defendant consented, because “The inmate in that case signed a form indicating that he understood that any use of the telephone, except in calling an attorney, would be subject to monitoring. Stickers posted near telephones reminded inmates their calls were monitored.”  Justice O’Conner goes through the various ways he consented.

A more interesting issue is whether the calls should be suppressed because “Only those prisoner telephone calls suspected to be related to the investigation may be monitored.”  This comes from prison policy and District Court caselaw.  There Jusice O’Conner struggles to explain why this “scope” issue isn’t an issue.  Eventually she concludes that “preventing crime” is a good enough reason to conclude that the monitoring was a good enough reason for a prison administrator to agree to such a search and we need to defer to prison administrators. 

Another interesting issue is whether a corrections officer had the authority to disclose the monitoring to the feds.  He argues that since no court authorized this wiretapping, there could not be sharing of the information.  She says that 18 U.S.C. § 2517 allows disclosure between cops if the information is obtained “by any means allowed in this chapter” and that chapter includes stuff taps obtained by consent.

CA1: District Court did okay in calculating loss amount

US v. Stoupis, No. 07-1410 (6/26/08).  This is an “amount of loss” sentencing appeal.  Here are the facts:

Because his job at the computer help desk gave him access to Hanscom Air Force Base's information technology systems, Stoupis was able to create email addresses that appeared to belong to different military personnel. When he saw a Cisco recall notice posted on the Internet for specific equipment, he would use one of the fictitious email addresses to request replacement equipment from Cisco. Stoupis would either select a serial number within the range listed in the recall notice or simply make one up to include in his request. The replacement request would appear to be on behalf of NG or the military, but Stoupis would arrange for the equipment to be shipped to either his house or a relative's house.

He then sold the stuff on Ebay.  The PSR placed the value at 7.2 million.  The Court placed it at 4.2 million, because of the differences between pricing for the military and the differences between new and refurbished equipment.   Looking at  U.S.S.G. § 2B1.1 cmt. n.3(C) (2007), and says that “measuring fair market value through a price reflecting the market out of which the goods were stolen -- is perfectly consistent with our precedent” is good enough.

CA1: typical defendant v. lawyer mess

USA v. Hicks, No. 06-2731 (6/26/08)  The defendant wants to withdraw his guilty plea.  The First has to figure out how to prevent him from doing this.  What is strange about this is that the defendant is complaining his lawyer not really giving him a chance to review a proposed plea agreement.  Apparently the proposed plea agreement was an “exploding offer.”  The judge kept telling the defendant that his lawyer was one of the “top five” lawyers in the state (Rhode Island), and eventually he was convicted.  More after the jump.

Supreme Court Rules Death Penalty Is 'Totally Badass'

Whether you really think it is cool that the state gets to kill people or not, this ruling is very important.

CA1: 85 pages of RICO

US v. DeCologero, Nos. 06-1274, 06-2390, 06-2391, 06-2392, 06-2569, 07-1086 .  This is a pretty violent RICO case.  I am not really going to do it justice.  It has dismemberments. The First takes many pages to catalogue the facts, which include an attempted forced overdose of heroin, and a trip to Home Depot.

On George Carlin:

CNN reports that

Carlin was born on May 12, 1937, in New York. He dropped out of high school in the ninth grade and joined the Air Force, where his misfit ways continued -- he received three courts-martial and several punishments.

This doesn't sound right.  Can someone verify this?