Appellate Law & Practice

CA1: Apprendi pipeline case sees briefly sees light in IAAC context

Martinez-Medina v. US, No. 06-1594 (unpublished).  This affirms a denial of a motion to vacate a sentence under 28 U.S.C. § 2255.  The grounds asserted are whether, in an “Apprendi Pipeline” case, the defendant was given ineffective assistance of counsel when she “misconstrued” Apprendi and conceded (to the First Circuit) that he would be subject to a higher sentence.  But the First says that in the underlying case, the higher sentence would have been warranted because the indictment did state enough (i.e. that there were “multi-kilograms” of cocaine in drug conpsiracy.)  Likewise, the First says that it had found in appeals of his codefendant’s cases that a failure of the jury to find drug quantity was harmless error.  Therefore, the statutory maximum was life, and there were no real Apprendi claims.  Therefore, appellate counsel’s concession didn’t make a difference.

The First ends by saying that 28 U.S.C. § 2255 motions can’t be used to make Booker retroactive.

CA1: First remands for a real resentencing when mandate not followed

US v. Pena-Gonzalez, No. 05-1402.  This case was first before the court in United States v. Rodríguez-Marrero, 390 F.3d 1, 32 (1st Cir. 2004) when it remanded for re-sentencing.  The District Court didn’t hold a sentencing hearing, and instead it “trimmed the original judgment without sentencing him anew” as the government told it to.  (This matters because Booker might allow the defendant to escape a life sentence).

But, the First resolves the issue on the “law of the case” doctrine (the “mandate rule”) part of it, and holds that the District Court didn’t really take the letter and spirit of the mandate seriously, and the District Court should have read the mandate “like a statute.” 

The First then points out that the prosecution – as much as the District Court – is at fault, because it seems to have tricked the court into thinking that it had made a finding (that the crime was in furtherance of a drug conspiracy) that would subject him to life sentence. The First says that this trick deprived the defendant of his ability to allocute at sentencing which is “scared.”

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US v. Tom, No. 07-1074 (unpublished).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.

CA9: Ninth fixes its jurisdictional faux pas on waivers in pleas

A little while ago, the Ninth, for some strange reason held that it lacked jurisdiction “to even hear an appeal because of the 11(c)(1)(C) plea.”  Some law clerk screwed that up.  Today, the Ninth Amends its opinion and undoes the damage done.  The case was U.S. v. Garcia, No. 05-30356 (4-17-08) (amended).  Tnx Ninth Circuit blog. 

CA1: Contribution train wreck

Rio Mar Assoc. L.P. v. UHS of Puerto Rico, Nos. 07-1868, 07-2005 (4/10/08).  In this case, Selya needs to reduce the use of big words, since there are complex issues of civil procedure involving members of the upper middle class.  This case begins with a vacationer being malpracticed upon by a Puerto Rican hospital after being negligently rescued by lifeguards at the Westin. The hospital settled with the plaintiff for 1.4 million, and then filed a cross-claim against the hotel.  (Not an unusual scenario.  This flavor, the court explains is a “Pierringer Relese” see “See Pierringer v. Hoger, 124 N.W.2d 106, 112 (Wis. 1963) (interpreting such a release as discharging the settling defendant entirely and discharging the non-settling defendant from responsibility for the settling defendant's proportionate share of liability)”)     The judge decided that the cross-claim should be heard in a later trial, but refused to order the release of the settlement agreement (or rather, didn’t act on a motion to compel disclosure). 

CA1: First Remands in light of non-retroactive change in guidelines

US v. Godin, No. 06-1749. After being sentenced as a career offender under the 2005 version of U.S.S.G. § 4B1.1(a), the USSC came out with a newer version of U.S.S.G. § 4A1.2(a)(2) (2007); U.S.S.G., Supp. to App. C, Amendment 709 (2007), which describes a prior conviction as counting as one conviction if it was “imposed on the same day.”  But this amendment wasn’t made retroactive and therefore relief isn’t possible under 18 U.S.C. § 3582(c)(2). So, the First says that since the case is still on appeal, it can still be “influenced by an amendment that merely clarified an earlier provision.” Since the commission said there was a conflict and this was substantive provision, it remands and concludes that “the judge is free to consider the Commission's current thinking for whatever use it may be in exercising the court's judgment about the proper sentence.”

The earlier decision in United   States  v. Godin, 489 F.3d 431 (1st Cir. 2007) was covered by us here.

Florida Hijinx Continue – with appellate courts and Quo Warranto Petitions

This time, an appellate judge is facing discipline for writing a concurring opinion because he criticized a “fellow” judge in a concurring opinion, stating that the judge should have recused himself.

I think most people agree that this is absurd. But, perhaps it will teach Floridians a lesson that 1) having independent judges is better than having a judiciary which cannot be criticized and 2) legal ethical rules should not be used as a way to punish people for their legitimate participation in democracy. When the hell did legal ethics become an area of punitive and substantive law that is lobbed like a spear between lawyers whenever they get into a catfight? 

The extensive documents are available here and here and here, and since they involve a Quo Warranto Petition, they are of note from a purely practical perspective

A Public Defender has the scoop, including news reports that indicate that the Judicial Qualifications Commission doesn’t seem to care about judges that sexually harass women that work for the court system.

 

An Easter Egg in the DTA: Does it Apply to the CAAF?

While the lay people have been crowing about the “suspension” of habeas corpus (which probably never happened), some lawyers have made the argument that 28 USC 2241 (e)(2), does not remove the jurisdiction of the US Court of Appeals for the Armed Forces (an “Article I Court” staffed by civilian judges -- but if you don't know that you should not be reading this blog).  Some firms called Baker and McKenzie and Kramer Levin Naftalis & Frankel filed a petition for mandamus and prohibition, etc.  (Remember the old days when people would be intimidated by the likes of Cully Stimson.)  You can read the brief on the National Institute of Military Justice’s Website here.  NIMJ is also looking to hire two people in DC. 

What the First said about Clear Error

Another note on DeCaire v. Mukasey, No. 07-1539 (our coverage here).  Even criminal law practitioners need to read it, because the First has this very important language regarding the “clear error” standard:

We have great concern over the district court's utilization of a theory not advanced by either party to the case. Fairness alone requires that the parties have notice of the theories so that the parties can gear their evidence toward what is at stake. ... Both sides to this litigation were prejudiced by the court's spontaneous introduction of a new theory of justification.

A theory must have a sufficient grounding in the evidence. Otherwise, it is merely speculation. In our view, after reviewing the facts, we are left with the conviction that the theory on which the court resolved the case is speculation not grounded in the evidence. ...We review the district court's factual determinations regarding an employer's intent for clear error. ... Under this standard, reversal is appropriate only if "after careful evaluation of the evidence, we are left with an abiding conviction that . . . [the court's] findings are simply wrong."

Got that?  If a judge rules refuses to suppress evidence on a ground not advanced by the government it can be reversed?   I find it somewhat ironic that one of the greatest rhetorical gifts (alright, one of the few gifts) that the First gives to the defense bar, comes in the wake of a dispute between angry US Marshal.

Torruella’s dissent

In light of Judge Torruella’s disagreement about the Court’s decision to rehear US v. Vega-Santiago,  06-1558 en banc (our coverage here), I think the part of his dissent dealing with rehearing en banc procedures needs to be analyzed for it might provide some guidance as to how some judges are thinking about en banc procedures.

I believe that the parties are entitled to the benefit of my views, even if they are considered to be in error by some of my colleagues. 

… I am also deeply concerned by the serious policy, procedural, and substantive issues raised by the unwarranted haste which has characterized this en banc proceeding. …

The convocation of this particular en banc proceeding highlights the whimsical and uneven manner in which this circuit often applies the rehearing rules. Indeed, both the granting and denying of petitions for these extraordinary proceedings evince a double-standard with respect to which issues are deemed meritorious of such review. See, e.g., Cerqueira v. American Airlines, No. 07-1824 (1st Cir. XXXX) (Torruella, J. dissenting) [(our coverage here)]. Time constraints do not allow for an exhaustive inventory of this asseveration, but the circumstances of this present appeal demonstrate one such example.

In this case, before either the appellant or the appellee had the opportunity to seek en banc review, the court undertook a rather unusual procedure and ordered en banc rehearing sua sponte. The appeal thus metamorphosed into one more relevant to, and reflective of, a judicially fueled agenda. That agenda became evident in light of the Government's own change of heart: both sides now agree that Rule 32(h) applies to post-Booker variances. Furthermore, the issue for which the en banc court was convened is presently before the Supreme Court, see United States v. Irizarry, 458 F.3d 1208 (11th Cir. 2006), cert. granted, 128 S. Ct. 828 (2008), and will most likely be decided in a definitive way before June. At a minimum, circumstances would seem to counsel awaiting the decision of the Supreme Court rather than unnecessarily investing our limited judicial resources on this one.

I am sure that some smart appellate procedure guy out there can figure out how to use this to their client's advantage.

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