Appellate Law & Practice

CA1: First continues to bend on DNA collection

US v. Soto, No. No. 07-1245, 07-1250 reverses the District Court’s decision which held that “requiring DNA collection from non-violent felons who are sentenced to probation violates the Fourth Amendment.”  After the District Court entered its decision, the First decided to defer to the government on this.  Because I don’t think that the First is taking this issue too seriously, I am not going to take their opinion that seriously.

In this case, the defendant was a probationer (rather than on supervised release).  But, it is pretty clear where the First is going on this.

CA1: Gertner affirmed

US v. Taba, No. 06-2584 (6/27/08) (unpublished) grants the government’s motion for summary disposition after Judge Gertner, following a bench trial, entered a conviction for “conspiracy to distribute cocaine.”  Strange.  Didn’t the folks on the other blog swear that she was a “liberal” or some other silly thing.  As far as I can tell, the appeal is fact-bound.

CA1: Arbitration award vacated

Kashner Davidson v. Mscisz, No. 07-1231 (6/27/08).  Want to see what a vacation of an arbitration looks like?  Look here.  The arbitration panel flip-flopped on whether its dismissal of counterclaims was a sanction or on the merits.  The First points out that the arbitrators did not even take NASD’s arbitration rules serious regarding sanctions, by not considering lesser sanctions.

You know... you would think the guys that serve as arbitrators would have known better.

CA1: SDO says that monitored attorney-client calls can be admitted if only Fourth Amendment challenge made

US v. Novak, No. 07-1826 (6/30/08).  Retired Justice O'Connor holds that where an incarcerated defendant consents to monitoring (even though they were in violation of state and federal regulations), a Fourth Amendment challenge will fail.  Now, if he had made a sixth amendment argument it would have succeeded. 

State regulations provide that lawyers’ phone numbers are exempted from monitoring, and inmates can request that new numbers be added.  It gets even stranger, because he was represented by the FPD, but he wanted to see if he could get some of his earlier state convictions vacated, so he called another lawyer. 

However, something went wrong, and the call was monitored.  But, it gets worse: when he started talking to the lawyer (and the lawyer identified himself) the cop listening to things didn’t hang up.  He kept listening.  Based on this, the cop figured that the defendant wanted to use the lawyer file some false affidavits.  The cop approached the lawyer, and the lawyer agreed to cooperate. 

SDO reverses the District Court and holds that there wasn’t any evidence that the defendant really knew about, or was relying on the state regulation in the first place. 

She ends by saying “We thus reiterate that in holding as we do, we do not express approval of the practice of monitoring calls between attorneys and clients in prisons and jails.”  However, we all know that this gives the green light to all government agents to monitor everything and then hope that Sixth Amendment challenges are waived.

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: 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.

CA1: no cancellation of removal for possession of small amounts of pot

Julce v. Mukasey, No. 07-2362 (6/20/08).  The First lays out the issue like so:

The petitioner raises a new question for this court involving the interplay between the immigration law's definition of aggravated felons, who are ineligible for cancellation of removal, and the federal criminal statutory exception in 21 U.S.C. § 841(b)(4) for reducing certain felony marijuana offenses from felonies to misdemeanor status.   

I put more stuff down below.

CA1: First Circuit expounds on discovery rule

Warren Freedenfeld Associates v. Michael P. McTigue et al., 07-1602 & 07-1603 (6/20/08).  This comes down to a question of when a statute of limitations in copyright infringement cases begins to run.  The underlying facts revolve around a business dispute between a veterinarian and an architect. As the efforts to build an animal hospital went to the dogs, the architect registered the mark.  Then they thought they settled the dispute and agreed that “(the Gardner Animal Hospital) would [not] "use any of the work solely produced by WFA." The word "solely" was handwritten and inserted in the typewritten text. Both McTigue and Freedenfeld initialed that alteration.”  The vet found a new architect, and built the hospital.  This design won an award for “merit.” The first architect brought suit.  The District Court said that he had waited more than three years, because of the “overwhelming” evidence that a “reasonable” person would have know (or thought they knew) that some infringement was afoot.  The First reverses and explains that with regard to the discovery rule: (look below the fold)

CA1: Alien smuggling case has something for everyone

USA v. Hilario-Hilario et al, Nos. No. 06-1007, 06-1009, 06-1010, 06-1011, 06-1013 (6/20/08).  This is an alien smuggling case.  The tone of the opinion seems to indicate that at least one judge on the First thinks that the government did a sloppy job of prosecuting it.  But, this is probably more lawyer-to-lawyer sniping than it is an indication of their views about these cases.  I find it somewhat ironic that the government put a lot of effort into proving that the vessel wasn’t that seaworthy, when, if it had sank, the underlying reason for prosecuting these people (i.e. bringing illegal aliens into the US) would have vanished.  Strangely, the Victims Rights Industry doesn’t seem to care too much about the “victims.”  There is lots here.  Sentencing , photo lineups, etc.

CA1: nothing wrong with rejecting a guilty plea or showing the indictment

US v. Skerret-Ortega, No. 06-1126. The defendant, in this case, argues that his attempts to plead guilty were improperly rejected. The First says that because the District Court didn’t really have the facts necessary to support a conviction, and his reasons for “pleading guilty” were somewhat ambiguous, there was no error in not accepting the plea. (Seriously, could a defendant ever argue that he was prejudiced by this? Even if he had a good offer on the table.)

The jury was given the indictment and “Rivera Santiago's sealed motion requesting a downward departure pursuant to U.S.S.G. § 5K1.1.” He didn’t object. The judge gave an instruction as to what they could use these things for. The First says that there was no plain error, because there was a legitimate reason to show the jury this stuff. 

During rebuttal closing, the defense counsel said "You are going to live with your decision the rest of your life. . . . Are you really going to rest the rest of your lives with the decision you are about to make on a criminal? On a woman that cannot remember the dates?" The prosecutor responded with “And when you decide this matter as judges, remember that you will live with the decision of course. You will live with the honest decision that you put a criminal behind bars. Not just left out in the street, another criminal to continue selling drugs next to the kids because you saw they sold regardless of the kids, not even caring for any of those kids, one of them was even giving money to a little child to take God knows where. So when you live with your conscience you will live with your knowledge as judges of the fact you did justice. . . .”  The First says that this was just provoked by the defense, and no plain error.