Appellate Law & Practice

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.

NDAA: No presumption of innocence if prosecutor presents any evidence

The National District Attorneys Association seems to be particularly riled up about judges prohibiting the use of certain conclusory legal terms in testimony.  Tresa Baldas of the National Law Journal gives them a platform to peddle their silly political lines.  Tnx (Crim. Prof. Blog -- which doesn't seem to accept dissenting comments.)

Now, as we described here, Wendy Murphy can’t be taken seriously.  But, seem to imply that prosecutors are waiting for a Federal Court to somehow order District Courts alter their rules of evidence to allow witnesses to say what they want.  Whatever the case, I don’t take Murphy seriously.

Then, “First Amendment lawyer Rex Heinke, a partner in the Los Angeles office of Akin Gump Strauss Hauer & Feld, wonders where all this is going. ‘It strikes me as a little odd that you can't use that term [rape]," he said. "Does that mean you can't use murder, robbery, breaking and entering?’”

Is this really Heinke’s legal analysis?  He is really arguing that there is a First Amendment right during a criminal trial for any witness to say anything he wants?  Heck, Why doesn’t Heinke argue that ANYONE has a right to say anything they want any a criminal trial regardless of who they are?  Whatever the case, Heinke’s legal analysis seems embarrassingly thin. (If he was quoted out of context, I invite him to leave a comment.) 

But, I expected more from James Fox of the NDAA.  He says, "I'm sorry, but the presumption of innocence argument only lasts as long as there's no other evidence to the contrary."

This simply is not the law.  The presumption of innocence NEVER goes away.  The burden of proof never shifts.  Is he really saying that so long as a prosecutor presents ANY evidence that the presumption of innocence evaporates and a defendant must prove his innocence?

Again, if Mr. Fox was quoted out of context, I invite him to leave a comment, which I will prominently feature.

CA1: Circuit split on comparable grounds

Gonzalez-Mesias v. Mukasey, No. 07-2346. This is an immigration case on a fairly narrow question of law.  This issue comes down to whether sodomy in Virginia, under Va. Code § 18.2-67.1 is a crime of violence. In the Second Circuit, Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007), rejected the idea that limit waivers of deportation[under former INA section 212(c), 8 U.S.C. § 1182(c)] to only those grounds of deportability for which there is a comparable ground of inadmissibility under 8 U.S.C. § 1182(a)(2).  The BIA said it disagreed with the Second Circuit for cases outside the Second.  But, the First says that its circuit law is simply different than that of the Second and were not overruled by any subsequent Supreme Court cases.

CA1: Journalists prevail on Fourth (but not First) Amendment claims

Asociacion de Period v. Mueller, No. 07-2196.  At long last, the First issues an opinion in a big First Amendment case.  Essentially some FBI agents were not too happy about press coverage of some raid they were conducting, and allegedly there was some violence. The plaintiffs bring suit claim that their First and Fourth Amendment rights were violated.

As to the First Amendment issues, “The plaintiffs allege that the defendants, through the use of force and intimidation, violated the First Amendment because they interfered with the journalists' ability to gather and report on the news while within the gated condominium complex and at the nearby helicopter landing field.”  The First says that because the plaintiffs didn’t show that they were authorized to enter the field in the first place.  The First stretches here, because there is some evidence that someone invited them in.  Then it gets a little weird.  It writes “ Absent evidence establishing the plaintiffs' right to enter the properties, the incidents complained of do not amount to a violation of the First Amendment.”  What?  Why “compelling” evidence?  That isn’t the standard for summary judgment.  Did the First just make that up?

As to the Fourth Amendment/Excessive Force claims.  “The plaintiffs contend that they were attempting to exit the gated area, but were impeded by the narrow pedestrian access gate. While bottlenecked in the space between the agents and the gate, the defendants hit some of the plaintiffs and, without warning, applied pepper spray directly into their faces.” The First says that the affidavits of the FBI agents are conclusory, and just say that the plaintiffs refused to move, and doesn’t actually address the plaintiffs’ injuries.  There is some discussion of the contours of excessive force.  Since the affidavits were so general, the qualified immunity argument fails on this.

Another issue is whether a DVD (which the plaintiffs argue was heavily edited) could be used by the defendants to obtain summary judgment on qualified immunity grounds.  The District Court said it wasn’t considering it.

CA1: ERISA preemption and removal – a very sexy dance

Negron-Fuentes v. UPS SCS, No. 07-2463.  This is a sad, but fun case.  The plaintiff took short term disability leave from UPS to be treated for a brain tumor.  When he visited UPS, as he was recovering, the folks there were not that nice to him, and made him depressed.  His benefits plan then told him that he could either apply for long term disability or seek reinstatement.  Then, “psyche!” the plan told him that his benefits had not vested.  This was to be the first of many “Psyches!”  However, the First eventually figures out that the District Court overdid claim preclusion on claims that might be ERISA claims.  (By the way, I had a very similar problem as a Civ. Pro. final.  Since most of you went to law schools that teach “local law” you wouldn’t understand.)

So, he sued in Puerto Rico Superior Court asserting state claims.  UPS removed, arguing that his actions were completely preempted by ERISA.  In Federal Court, he added on a bunch of federal claims.  The District Court dismissed the state-law claims without prejudice.  He then went back to state court and asked to “reopen” them (to avoid a statute of limitations problem).  UPS opposed this in the state court, but lost at the state trial and appellate courts.

CA1: Duck trademark fight leaves several annoyed

Boston Duck Tours v. Super Duck Tours, 07-2078. Did I mention that Intellectual Property is the one field of law I have no patience for.  It is all so sill and the people that practice it think that they are all that.  They are not.

Anyway, two rival amphibious tour companies are suing each other over the use of the word “duck.”  It concludes that “...the district court committed clear error by finding the phrase ‘duck tour’ nongeneric, and thereby according it too much weight in its likelihood of confusion analysis.”  Therefore, it concludes that there wasn’t that much of a likelihood of confusion.  Therefore, there should not have been an injunction issued. 

Second Circuit en banc fight

Wait a Second contains an interesting post about “a catfight over whether to hear a case en banc” in the Second Circuit.  You should already be aware of this.

... and in the “Stupid Law School Tricks” category, Legal Blog Watch reports that “The [not-ABA unaccredited] Massachusetts School of Law at Andover will convene a conference in September to lay plans to prosecute President Bush and other high administration officials for war crimes.”

CA1: Indonesian not really that oppressed

Sombah v. Mukasey, No. 07-1481 denies a petition for review of a asylum/CAT claim of an Indonesian Christian. (The CAT claims are waived.)  The IJ said that the harassment was a “private” matter, and the BIA concluded that they were not persecuted.  The First says that this is okay, and notes that because the IJ didn’t conclude that the government was behind this that there really isn’t a legal error.