Appellate Law & Practice

CA1: cut and paste brief goes nowhere

Rusli v. Gonzales, No. 06-1941 (6/27/08) (unpublished) summarily denies a petition for review by Indonesian Christian.  It begins with this line: The brief filed by petitioners' counsel, Yan Wang, is a "cut and paste" affair that appears to present the facts of another case -- notably for a person of a different gender than Rusli, who had different experiences, in different years, and appeared before a different immigration judge. This substantive failure to comply with Federal Rule of Appellate Procedure 28 alone justifies dismissal. And there were no arguments.

CA1: a fun insurance coverage case ending in certification

Boston Gas Company v. Century Indemnity, No. 07-1452.  Certification order.  This is a really fun insurance coverage case.  I don’t really have time to go into details, but take a look.

Before getting to the fun insurance stuff, let’s talk about an exclusion of an expert report.  It seems like an expert changed his position about an issue right before trial  The District Court struck the report.  But, the First said that although this wasn’t an abuse of discretion, the issue will come up if there is a new trial.

Secondly, let’s talk about declaratory judgments.  After a jury verdict, the District Court granted a declaratory judgment for prospective damages pursuant to an insurance policy.  The First seems to say that these things are unwieldy, but doesn’t go so far as to condemn them, saying that the District Court can resolve any future disputes that arise, and “The district court will be able to determine the scope of litigation when a dispute arises, using doctrines like collateral estoppel, waiver, and the like to prevent relitigation of matters that have been, or could have been, decided.”

Third, prejudgment interest.  In Massachusetts its runs from the date of breach and a demand.  However, the facts (in the form of invoices) don’t indicate a demand as early as Boston Gas claims it was.

Fourth, missing policies.  One was over 50 years old.  The First says that this isn’t fatal, so long as the jury can figure out what they said.

Anyway, now to the fun insurance stuff.  Oh wait.  I put it below the fold.

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.

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.