Appellate Law & Practice

University of North Dakota shows why it can't be taken seriously

Is it just a coincidence that an entire law review is filled with silly articles that express a distaste for gay marriage?  Some lawyers think it was hijacked.    Tnx. HA

CA1: does everyone get Brady wrong?

US v. Aviles-Colon, Nos. 05-1384, 05-2039, 05-2040.  In this Puerto Rican drug distribution case, the First remands on a Brady v. Maryland, 373 U.S. 83 (1963) issue as to one defendant.  [Update: SL&P, with guest-bloggers, lives up to its ethical duty to read all cases and comments here in a post entitled First Circuit Affirms Sentences of 35 and 55 Years Imposed Due to Murder Proven by Preponderance Standard]

A year after the trial in this case, a DEA report was obtained which the defendant says is Brady material.  But, the District Court used the wrong standard in denying the motion for a new trial.  t said that the suppressed evidence "does not rise to the level of materiality that would be likely to cause a different result at a new trial."  That isn’t the standard.   The standard is “was a reasonable probability of a different outcome, which is "shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.'" But, the First says that none of this matters because the information in the reports on their own, could have been used for impeachment since it details a lot of the motives of the various players.

The First also goes through what needs to be shown to admit co-conspirator testimony.  The First explains that under its law 1) government agents are conspirators; and 2) “informing co-conspirators of the activities of the conspiracy's members furthers the conspiracy.” 

As always, the First says that prosecutors should not “appeal to the "jury's emotions and role as the conscience of the community."  But, as always, it really means “go ahead and do it.”  So, it finds that the prosecutor’s comments were not that bad.  That is the usual stuff.  Some of the other claims of prosecutorial misconduct don’t have merit (i.e. saying that they are “fortunate” to have a gang member testify). 

There are a lot of other typical issues, but they don’t really create any new law.  But, for those that practice in this area, this case will be of interest.  Otherwise, there is a spreadsheet at the end, explaining what is up with each case.

CA1: Uganda and late filing

Lutaaya v. Mukasey, No. 07-2328 (7/28/08).  The petitioner is a Ugandan citizen that ran a delivery business that contracted with the government to supply the troops.  Sort of like Haliburton.  Only, when some of the trucks were stolen by the rebels, “Soldiers accused her and Sabeera of cooperating with the LRA. They beat her, cut her with a sword, and raped her,” She came to the US where she filed a asylum application late.  At a hearing there was some discrepancies about the number of soldiers involving in the rape.  The IJ seemed to go quite far in saying that the petitioner wasn’t truthful.  The BIA didn’t go so far, but said she was statutorily ineligible.  The First then brushes off her argument that excusing late filing is constitutional.  Not analysis.  Just string cites.  The withholding of removal claim fails on credibility grounds. 

CA1: Haiti getting better

Michel v. Mukasey, No. 07-2166 (7/28/08) (unpublished) denies a petition for review of an asylum application.  The First says that his past persecution really isn’t that relevant has Haiti is a really awesome place, but in a “general state of disarray.”  Or, in the words of a per curiam court (must likely Judge Selya), “With the levers of power having been wrested from the hands of his antagonists, there is no realistic possibility that the petitioner's pro-Convergence sympathies will place him in the Haitian government's cross-hairs.”

The petitioner appeared to be making a more developed argument about how exactly the BIA should review an IJ, but I don’t think it was taken that seriously. 

CA1: no plea withdrawal

US v. Bates, No. 07-1370 (7/28/08) (unpublished).  A defendant really wants to withdraw his plea.  He had the opportunity to withdraw it at the District Court.  He did not.  The First vacillates as to whether this is a waiver or forfeiture issue, but then says that there was no plain error.  Regrading an Almendarez-Torres v. United States, 523 U.S. 224 (1998) issue, the First says:

As defendant candidly recognizes, his challenge to consideration of his prior conviction on the ground that it was neither admitted, charged in the indictment, nor proved beyond a reasonable doubt is currently "hopeless.

But, at least they don’t call it unethical. 

CA1: A FRCP 54(b) question

Niemic v. Galas, No. 07-1763 (7/28/08) (unpublished).  In this prisoner-health-care litigation, the District Court directed the entry of judgment under R. 54(b).  The problem is that the District Court didn't explain why there was no “just” reason for the delay.  The First says that it “requested” an explanation from the District Court.  (How? By an order? By a phone call.  It doesn't say.)

Despite somehow being able to supplement the record (I guess as a means to knock out some prisoner litigation), the First still isn't impressed with the District Court's explanation, and says that the District Court didn't explain the interrelationship (or lack, therefore) of the defendants.  But, the First says that all in all the claims between the different classes of defendants are not that intertwined, and then blabbers on a bit about how this will reduce judicial expense.

The merits seem simple, and the First says that the defendant-prison-health-care providers gave him enough care. 

The First doesn't seem too impressed with the fact that a 56(f) motion was denied.  The plaintiff argued that his legal papers were “strewn” ransacked by jail guards and “strewn” eveywhere.  But the first figures out why it doesn't matter.

Back in the saddle

Due to travel commitments, I was unable to blog. If all goes right, we will be liveblogging human rights abuses from China. So, back to work.

Bush approves execution of Army private

For the first time in a long time, a president has approved the execution of a member of the armed forces.

CA1: unless discretion is exercised, the court can't review the discretion

Beetz v. Ambrosi, No. 07-2449 (unpublished).  This is ugly.  The court told the plaintiff to amend his complaint to comply with FRCP 8 and 9(b).  After the initial attorney withdrew, he asked for “at least” 30 days.  An electronic order was entered that said “granted.”  He seems to have complied with that. However, “but due to some apparent docketing irregularities, the amended complaint was not entered on the electronic docket until some months later.”  Obviously one side says “granted” means “30 days” and the other side says it means “zero days.” 

The defendants also argue that the new complaint had the same defects.  But the First isn't going there because it concludes that “We cannot affirm on the basis of a discretion that the district court did not exercise.”  This is an important thing to file away.

So, it is back to the District Court.

CA1: corporate work product coming to 1st

Even though I might be late on todays (mostly nonremarkable) opinions, I was holding off reporting on this, but what the hell.  TaxProfBlog is reporting that:

The 1st U.S. Circuit Court of Appeals has set a Sept. 5 date for arguments in the closely watched U.S. v. Textron Inc., No. 07-2631, and the government has filed its notice of appeal to the 11th Circuit in a similar tax case, Regions Financial Corp. v. U.S., No. 2:06-CV-00895 (N.D. Ala. 2008).