Appellate Law & Practice

CA1: Petition for review of Colombian asylum-seeker granted

Bonilla v. Mukasey, No. 07-1813.  The petitioner is a Colombian.  FARC was giving him a hard time.  So he moved to Venezuela, where he got a “permanent resident” stamp.  Then he went back to Columbia.  The IJ concluded that he was “firmly resettled” in Venezuela, and therefore he had “firmly resettled” there.  See 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 208.15.  He claims that he didn't really have permission to resettle in Venezuela, because the stamp expired, and he never really lived there.  The First says that the evidence is ambiguous – because renewal of the stamp might be just an administrative thing -- and the government bears the burden of showing resettlement.  So, the First remands.

CA1: Copt not that oppressed

Abdelmalek v. Mukasey, No. 07-2819 denies a petition for review of an asylum-seeking Egyptian Coptic Christian.  He is a doctor, whose wife owned a building that collapsed killing a lot of Muslims.  The First denies the petition for review.  However, saying that he wasn't really oppressed.  However, I am a little disturbed the First's remarks:

It is never a pleasant task to attempt to quantify an individual's suffering and measure it against the suffering of others, but it must be remarked that this court has recently denied petitions for review filed by other Egyptian Copts who suffered mistreatment at least equal to, if not greater than, that allegedly suffered by Abdelmalek.

See, remarks like this create dangerous precedent.  Courts adjudicate petitions for review on an individual basis.  They don't adjudicate the status of ethic groups or the suckiness of countries.  If anything, the State Department does this.  I discussed this here.

For the travails of another Coptic doctor see here.

CA1: appellate waiver valid

USA v. Edelen, 07-1189.  This case comes down to whether there was a valid appeal waiver.  He claims that “his waiver of appellate rights was involuntary and unknowing because he entered into the plea agreement unaware of the potential six-level official-victim enhancement.”  The First looks at the transcript and says that he understood what was going on.  However, it also says that under United States v. Teeter, 257 F.3d 14, 24 (1st Cir. 2001), there was no miscarriage of justice.

CA1: extensive discussion of RICO and structural characteristics of constructive amendment

US v. Brandao, No. 07-1215 (8/21/08).  This case has the phrase “acknowledging the able advocacy by defense counsel.”  We all know what this means.  The client is going down.  To jail.  Well, he was poor, and there was a split in the circuits.  Anyway, because I am on my way home from China, I don't have the time to give a good analysis of this, so whoever wrote this opinion gets a pass.

Anyway, this case hits on two of the difficult issues in criminal law.  The First, resolves them in favor of the government. 

Of general interest is the issue of whether the government can avoid a constructive indictment argument via notice found in the jury instructions.  Alas, this is on plain error review.  This is unpreserved, so the First says that it is not a structural defect (the Fourth, which never takes these things seriously, holds that it is is structural).  The First says it isn't structural, because, well, the Supreme Court (in the First's mind) doesn't want to create new structural defects.  So, whatever.

In a RICO indictment, there is (or should be) a "relatedness," and "pattern of racketeering activity" element(s).  So, at some level when the government goes after the small fish, they have to prove that they have some knowledge of what is really going on.  Anyway, the First says that the government proved its case.  But, in looking at the facts it seems rather thin.  Anyway, anyone that defends these cases is going to have to parse through the facts here, as the opinion reads more like something from a trial court.  But, whatever, it as a gang case.  The court distinguishes Reves v. Ernst & Young, 507 U.S. 170 (1993), which it says deals with “outsiders” (i.e. the  kind of people that have written contracts) as opposed to “insiders.” 

As usual, the First gives a green light to the prosecutor's closing arguments.  Same deal with Brady material.

CA1: drug conspiracy colloquy fun

US v. Pimentel, No. 07-1512 (8/21/08)holds on plain error review that a plea colloquy was okay.  At the change of plea hearing, “The district court d8etermined that Pimentel's claims of exculpatory evidence lacked credibility because he had previously admitted to the conspiracy and admitted that there was a gun in the vehicle when he went with his co-defendant to pick up the drugs.”  The First then explains how the Rule 11 proceedings were okay, and notes that the District Court didn't have to inform the defendant of the overt acts of drug conspiracy offense, because, it seems that overt acts are not elements of the [drug] conspiracies. 

The government concedes that the defendant wasn't properly advised of the maximum statutory penalty.  But, the First says that this is harmless because it didn't change the sentence he ended up getting. 

Substantively, the First notes that the DC Circuit has held that 21 U.S.C. § 841(a)(1) doesn't require that a defendant be charged with a specific amount of drugs.  This defendant was not.  However, the First says it isn't going t decide whether this statute requires a specific quantity, because it wasn't raised below, and such an error is not a jurisdictional defect.

CA1: is it a warranty provision and is it breached? (and a Bottomry book)

ING Insurance SA v. Pagan-Sanchez, No. 07-1709 (8/21/08). A guy gets his boat insured.  He doesn’t seem to take care of it too well, and they don’t put fire extinguishers where they should.  It gets wrecked.  His insurers seek a declaratory judgment saying that they don’t have to pay. 

The dispute resolves around the language of the contract and the provisions of the contract dealing with maintenance and fire extinguishers are “warranty” provisions, the breach of which by the insured party is a breach of the contract.  The First says that they are.  The first says that the “prevailing view” is that performance under a maritime insurance contract is excused if the insured parties breach the warranty. The First admits that there is no Puerto Rican law on the subject. 

Strangely, the First condemns counsel for the insurers for talking too much about New York law.  But what really seems to be going on is that counsel for the insurers, during the litigation consented to the substantive law of Puerto Rico, even though the language of the contract includes a provision naming New York as the “choice of law.”  So, the First says, “We are not certain that counsel, as a matter of litigation strategy, may vary the express terms of a choice of law clause.”  So, we know that is an open issue in the First.

If you have enjoyed reading about this case (as an ethical and detail-oriented lawyer would), you may enjoy James Allan Park, A System of the Law of Marine Insurances: With Three Chapters on Bottomry, on Insurances on Lives, and on Insurances Against Fire, available on Google Books here. 

CA1: proving propr convictions with computerized docket entries

US v. McKenzie, No. 07-1834 (8/21/08) holds that it was okay to use computerized docket (but attested an authenticated) entries, which had the effect of rendering the defendant ineligible for safety-valve relief under 18 U.S.C. § 3553(f).  It then goes on to hold that “attested copies of electronic docket entries may be a sufficient proffer of prior conviction for sentencing proceedings before a district court”

Strangely, the initial prior convictions were for shoplifting and there the First held that “...the potential for physical confrontation made it impossible to conclude that shoplifting was ‘similar to’ certain offenses excluded from CHC calculations under U.S.S.G. § 4A1.2(c).”   The First sticks by this, case, United States v. Spaulding, 339 F.3d 20 (1st Cir. 2003), and therefore the shoplifting cases count.

CA1: who determines whether a termination is for cause (and defamation)

Noonan v. Staples, Inc., No. 07-2159 (8/21/08) affirms a grant of summary judgment to Staples.  Noonan was fired.  Staples says he was fired “for cause” and therefore it doesn’t have to treat him like a man: he can’t exercise his stock options, and he doesn’t get severance benefits.  It also told 1,500 via email people that he was fired for padding his expense reports.  It normally didn’t humiliate people like this.  Strangely, the amount he “stole” was only about $1,500, which is less than most firms spend on a summer associate outing.  So, I don’t see what Staples is so upset about.

On the stock option agreement breach issue, the First sides with Staples.  This is particularly disgusting. The First say that the question of “cause” is for Staples alone to determine, and that courts must determine whether such a determination was “ arbitrary, capricious, or made in bad faith.”  The First doesn’t really go into why a Massachusetts court would rule this way but seems to just count noses of other jurisdictions. 

On the libel claim, Staples claims that its email was true. Noonan says it isn’t really true, but he admits that he disregarded the letter, not the spirit, of the policy.  The First rejects Noonan’s argument that the whole email painted a very nasty portrait of him, as arrogantly disregarding Staples policy based on a whim.  You have to be an equity partner to do that.  But, for this reason it also rejects the breach of the severance agreement claims: because he didn’t comply with the letter of the contract, Staples gets to not honor its part.

The actual malice theory fails as well.  But, you get a good discussion of the law of libel in Massachusetts, so, if this floats your boat, you can read it.

CA1: abuse of process and malicious prosecution claims sort of discussed

Gonzalez-Rucci v. INS, No. 07-1198 (8/21/08).  Oh god this case is a mess.  We got an immigration lawyer.  She gets hit upon by an INS Officer, Andrés Núñez.  She rejects the hitting upon. Suddenly, the INS started abusing her (e.g deliberately losing paperwork and making her wait hours), and suspended her from practice.  He complaints were ignored.   Shortly thereafter the US Attorneys Office files charges against her claiming that she helped foreigners enter into sham marriages.  The is acquitted at trial.  The evidence seemed extremely thin: some tips about how to behave in an interview with the INS.

She then sues under the FTCA, Bivens, and other things.  The District Court dismissed them all, but the First remanded on the abuse of process and malicious prosecution claims.  González-Rucci v. U.S. Immigration & Naturalization Serv., 405 F.3d 45, 48 (1st Cir. 2005).  After a bench trial, the District Court dismissed the remaining claims.  The First Discusses the Puerto Rican law of malicious prosecution and finds enough in there to show that the government had probable cause.  And, as a factual matter, the First upholds the finding that the US Attorneys Office acted in good faith.

CA1: Fed. R. Crim. P. 16(a) cop "basis" issues

US v. Lipscomb, No. 07-1293 (8/21/08).  Some decided a guy looked like a drug dealer and approached him.  He threw a bag with some drugs and a gun and ran.  Then they tackled him.  Isn’t the war on drugs awesome?  He moved to suppress the drugs and gun, but he kept saying that neither was his (though if he did claim that they were his, it wouldn’t be usable at trial).  So, the District Court denies the motion and the First affirms.

There is a semi-interesting issue regarding whether a Fed. R. Crim. P. 16(a)(1)(G) requires disclosure of the “bases” for an expert’s opinion.  Although the District Court thought the notice was barely adequate, the First jumps in and says that saying that “training and experience” is a good enough basis for an opinion.  WTF.  But then the First tries to say that because this was a cop, it will pass, but if it were a real expert (not a “cop” expert) then it would require more detail.  This seems a tad unfair to defendants.  But wait – nobody cares.

A denial of a motion to disclose the name of a confidential informant by a magistrate that wasn’t appealed to the district court is deemed waived.    There are a few other issues that are waived or not supported by “Facts.”  So, they don’t really create new law.

After all this, however, he gets a Kimbrough remand, because it is a crack/powder case.