Appellate Law & Practice

CA1: arbitration award affirmed

UMass Memorial v. United Food and Commercial Workers Union, Nos. 07-2527; 07-2528.  The hospital lost an arbitration (against the union).  The hospital went to the District Court, seeking to vacate the award.  This seems to be a dispute about whether the statute of limitations was followed because of a dispute about whether incidents were “episodic” or “continuous.”  The District Court noted that the arbitrator’s decision could be construed two ways.  But, the First says that it is the “result” not the “reasoning” that is what the District Court should be analyzing.  An award of fees in favor of the union is affirmed. 

CA1: PURPA case barred by SOL (and Steel Co issue)

Greenwood v. NH Public Utilities, No. 07-2322.  This case begins with “This case was brought by the owner of a small renewable hydroelectricity producing company.” So, he loses.

Before getting to the energy nerdery, the First has to explain how it will jump over the jurisdictional issues It writes:

While we would ordinarily reach the jurisdictional question first, we choose to resolve this case on other grounds. Although the Supreme Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998), generally barred the practice of "hypothetical jurisdiction," this circuit has treated Steel Co.'s admonition as having limits. See McBee v. Delica Co., 417 F.3d 107, 127 (1st Cir. 2005) [our coverage here]; Parella v. Ret. Bd. of the R.I. Employees' Ret. Sys., 173 F.3d 46, 53-56 (1st Cir. 1999). This court has consistently interpreted the Steel Co. rule as applying in its strict form only to issues going to Article III requirements.

Got it?  Steel Co. v. Citizens for a Better Environment only applies when the First Circuit says it does.

Anyway, this is a Public Utility Regulatory Policies Act ("PURPA" or "the Act") of 1978, 16 U.S.C. § 824a-3 case.  The New Hampshire Public Utilities Commission rescinded a 30-year rate agreement because “ It concluded that it had made a mistake in the 1985 order, and that it had not, as PURPA and the FERC rules required, treated Greenwood's three [qualifying cogeneration and small power production facilities] in a manner ‘consistent . . . for facilities that are similarly circumstanced.’” Rather than appealing to the state Supreme Court or petition FERC for an enforcement proceedings, seventeen years later, the plaintiff asked the District Court to enjoin the commission from enforcing the change, effectively reinstating the old rates.  The District Court issued the injunction.  The First reverses, on statute of limitations grounds and notes that the plaintiff is the “of a small renewable hydroelectricity producing company.”

This case was brought under 28 U.S.C. § 1331, there isn’t a Federal Statute of limitations, so the First chose N.H. Rev. Stat. § 508:4, because the First says that this claim is akin to “New Hampshire law claim of tortious interference with contractual relations.”  But, the accrual date isn’t a matter of federal law.  It also rejects the idea that these claims are analogous to breach of contract claims.  Arguments about equity fail, because tolling the statute of limitations, apparently, would adversely impact third parties.

CA1: plea was valid and entrapment fails

US v. Otero, No. 07-1555 holds that in a “Rule 11" (i.e. a change of plea) proceeding, a defendant was “aware of the intent element of the drug-trafficking offense” even though the judge didn’t read it out loud.  He raises an “entrapment” argument, but because he plead guilty and there was no real chance that he would succeed on that defense, that fails, too.

CA1: SEC wins something

Duggan v. SEC, No. 07-2494 (unpublished).  I think this is a FOIA request.  The opinion reads, in relevant part “The Securities and Exchange Commission made an adequate showing at summary judgment that it had conducted a search that was reasonably calculated to disclose requested documents....The appellant could not rely upon mere innuendo and speculation to overcome that showing....Finally, the appellant made no showing that the district court abused its broad discretion in ruling on his discovery motions.”

CA1: a strange 1983 statute of limitations problem

Cao v. Commonwealth of PR, No. 07-1394.  This is a 1983 case brought by a an “an elderly resident [who was] was removed from her home, made to undergo a psychological evaluation, and placed in a substitute home and, later, a state institution for the elderly.”  This comes down to a statue of limitations issue (analogizing to Puerto Rico’s statute of limitations).  “ The Commonwealth identifies this as occurring on March 16, 2004, the day Cao was first removed from her home, while Cao instead puts forth August 2, 2005, the day she was notified that the state court had dismissed all custody proceedings against her.”  The First says that the commonwealth won, because this is when she knew of the injuries, and equitable tolling doesn’t apply.    But, is the First really saying that she should have brought a 1983 action while the state court custody proceedings were proceeding?  Wouldn’t that be considered some kind of impermissible collateral attack.

CA1: guilty plea prevents collateral attack on deportation order

US v. Vargas, No. 07-2536 (unpublished).  A defendant plead guilty to “illegal re-entry” even though he said that he wanted to contest the due process in the underlying deportation order, but the First says that the guilty plea operates as a waiver on that issue.

CA1: consecutive sentences, brandishing, and all that

US v. Feliciano-Rodriguez, No. 06-2719.  This is a drug conspiracy appeal.  Pretty exciting facts... including someone in the witness protection program. The government seems to concede a lot on appeal, essentially saying that the District Court judge went too far in trying to send someone to a tax-payer supported hole.

The biggest issue, I would say is that the First circuit says that Consecutive Sentences for the use of a firearm as part of a conspiracy violate double jeopardy.

The government concedes the life sentence imposed on See 18 U.S.C. § 924(c) and (o) violated the 20 year statutory maximum.  Likewise, the government also concedes that the defendant never “brandished” a firearm or made it known to people.  So, the conviction under 18 U.S.C. § 924(c)(1)(A)(ii) is vacated. 

The first says that the District Court committed “clear error” by finding that dealers worked “every day” when in fact they worked “Every other day” (based on the record).  However, the First concludes that this is harmless (yet clearly erroneous). 

CA1: closing the courtroom is okay during contempt proceeding, as are some redactions

US v. Bucci, Nos. 06-2746, 07-1087.  The facts of this case go on and on, but it essentially comes down to dirty-cops-turned-drug dealers.

The really big issue is the “courtroom closure” issue.  “Bucci argues that the district court erred by closing the courtroom during jury selection and later during a contempt proceeding against Raftery [who was refusing to testify].”  The First says that the jury selection argument needs to be developed on collateral review.  But, the First explains that the Sixth Amendment doesn’t really apply to civil contempt proceedings, and this contempt proceeding was really “collateral” to the defendant’s trial, as no evidence was really presented against the defendant.

The second big issue if whether the government can present a partially redacted transcript.  Despite the FRE 106 rule of completeness, the First says that nobody was prejudiced.

But there is more below the fold

CA1: First bends a bit to affirm a child pr0n conviction

US v. Wilder, No. 06-2213.  This is a child pr0n conviction.  The first issue is whether the search warrant affidavit was based on stale evidence.  The District Court said it wasn’t stale, even though the affidavit only showed that he downloaded pr0n.  But, I guess everyone gets to “infer” that if one downloads things, they keep them. 

Applying United States v. Rodriguez-Pacheco, 475 F.3d 434, 439 (1st Cir. 2007) (our coverage here), the First says the government doesn’t need expert testimony to provide that “the children were real” and not computer-generated.  Judge Stahl disagrees with this part of the opinion, and says that the First is ignoring Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), and says that “The logic of adopting this rather odd assumption about the dynamics of the child pornography market as a rationale for concluding that the child in any given picture is unlikely to be virtual rather than real is questionable at best.”  But, Stahl is missing the point: the First WANTS to get caught up in the child pr0n hysteria.  People like it that way.  Whatever the case, Stahl figures that there was expert testimony on whether they were real children.

Then the First says it is up to the jury to determine whether the pictures actually depict “sexually explicit conduct.”  However, it is unclear what the minimum the government would need to introduce would be.

Regarding the “knowing” element of “receipt” of pr0n, the First says that “there was ample evidence of what he was looking for” and distinguishes it from case where people get a big ol’ barrel of pr0n (some legal and some illegal).

Regarding the “knowing” element of “possession” the First jumps over the issue of whether he preserved his argument and concludes that based on the “opinion” testimony of two experts he “knowingly” saved pictures into a certain place.

CA1: even though some people like naturopaths, it is still a fraud

US v. Curran, No. 06-2647.  The defendant was not a doctor.  But he only had training in naturopathy.  He would tell people that they were very sick and take their money.  Eventually he was charged with fraud, and he appeals the District Court’s sentence on the basis that the loss was calculated incorrectly and called him a menace and a bunch of similar names.   However, not all of his clients felt cheated, and he argues that the District Court didn’t differentiate between the angry clients and the happy ones in calculating his offense level under USSG § 2B1.1(b)(1)(I)(2005).  The First holds that “ That a few clients later relayed their satisfaction with this fraudulent treatment through defense counsel is immaterial in light of the clear evidence of professional impropriety and fraud, affecting all his clients, that permeated Curran's practice.”  Applying USSG § 2B1.1, cmt. n.3(A)(I), the First finds it was all a scam, and that there was little evidence that showed that some people knew he wasn’t a real doctor, but liked going to him, anyway.    On plain error view, his objections to the restitution order are rejected.