Appellate Law & Practice

CA1: a bad, unpublished case on tax evasion and privileged materials

US v. Schussel, No. 07-2095 (8/29/08) (unpublished).  Again, why the hell was this unpublished.  This is freakin’ major case in criminal and tax practice.  What the hell is the First thinking?  Are they trying to hide something?  Or are they trying to avoid writing a “precedential” case on tax privilege issues, because there are other ones in the pipeline which are not criminal -- yet.  Essentially this is what happens when you think you can hide assets in Bermuda and hope that it all turns out okay in the morning.  I don’t have too much sympathy for this kind of person.  He also fabricated documents, and tried to replace computerized records.  I know a couple of the actors in this case (and they luckily they are documented as behaving ethically as they always do).  However, this case demonstrates the principles in tax practice known as “what goes around comes around.” 

In October 2001, Darlene Flint, who had worked as Gomes’ secretary for 18 years, walked into the IRS office in Stoneham, Massachusetts, with a box of DCI records that included the Bermuda account records.  This disclosure triggered a criminal investigation of DCI and its employees

It also demonstrates why certain kinds of tax clients are really a bitch to deal with, and what sort of trouble tax lawyers flirt with.  Anyway, back to that law stuff.

The biggest problem with this opinion is that the First seems not to understand that there is a difference between rules of professional responsibility and privilege.  Rules of professional responsibility generally govern the relationship between the client and the lawyer.  Usually they are written to make it easier to represent a client, and in the case of privileges, many rules reflect our common-law understanding of such privileges.  But these are different issues.  The First seems to flip back and forth between privileges and rules of professional responsibility to reach the result it wants.  This makes this one of the worst opinions of the year.

Looking at the actual holdings... oh wait.  They appear below the fold.

CA1: plain meaning of 4A1.1 ?

US v. Hernandez, No. 07-1828. Selya begins this opinion with a bunch of nonsense: “oddly placed transitional expression in an application note and the ingenuity of able counsel combine to give us momentary pause, we conclude that the guideline provision says what it means and means what it says.”  Does anyone who has been to law school really think that a text has some readily ascertainably objective meaning?  Even stranger still, Selya concedes in that first sentence that the meaning isn’t entirely clear.  Why can’t he just come out and say that he is using whatever tools he wants to send someone to jail or not.

Anyway, the dispute is over U.S.S.G. 4A1.1(d) ("if the defendant committed the instant offense while under any criminal justice sentence, including probation."... he gets an enhancement).  In this case, the defendant’s was plead guilty to “conspiracy.”  According to the indictment the conspiracy lasted four months, and in the middle of the four months he was convicted of Operating under the Influence, and given criminal supervision.  Application note four reads "[t]wo points are added if the defendant committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence."  Therefore, according to Selya, the defendant is arguing that the guideline  “focuses not on the offense of conviction simpliciter but, rather, on whatever act(s) the defendant himself committed within the confines of that offense.”  Selya says that the “i.e.” doesn’t actually change the meaning of “instant offense,” and if there was any inconsistency, the guideline (rather than the note) prevails.

Then Selya seems to get annoyed that the defendant is trying to bring the “complexities” of conspiracy into sentencing law.

Look, maybe Selya is right.  But I don’t get why he is so bent on saying that the result is so obvious.  He even concedes that the guideline and note is not entirely clear.

Ali G and Richard Thornburgh on analytic jurisprudence

Ali G and Dick Thornburg have a rather deep conversation about analytic jurisprudence, which is more informative than most public statements made by lawyers to the public these days.  He also discusses private ordering and the death penalty, and Thornburgh seems to indicate that all state-sanctioned executions are “murder.”

CA1: First disses brief

Kurniawan v. Mukasey, No. 07-2421 (8/28/08) (unpublished).  This denies the petition fore review of an Indonesian Muslim that converted to Christianity.  The First writes:

He argues that the persecution he suffered in Indonesia, in conjunction with the 2005 Country Report on Human Rights Practices in Indonesia, constitutes evidence sufficient to satisfy his burden. However, nothing in the record or in his woefully inadequate brief compels a contrary finding

Does this mean that the guy would get to stay in the country if the brief were adequate?

CA1: harmless Kimbrough error

US v. Ayala, No. 07-1570 (8/28/08) (unpublished).  There is something disturbing about this opinion.  I don’t know what it is.  It might be because it is longer than most unpublished opinions.  Perhaps there is some big issue that the First doesn’t want to address that I am missing.  Maybe someone can comb through it and see. 

This case essentially denies a Kimbrough v. United States 128 S. Ct. 558 (2007) remand because it was harmless error (i.e. the court didn’t use the guidelines).  Since this is a crack case, he can move in the District Court for resentencing. 

The court rejects a standard Apprendi argument regarding drug quantity.  It also says that an argument regarding whether he was allowed to contest the PSR was done in an overly conclusory manner.  Next the First says that by agreeing with the probation officer to a lower enhancement for his “role” in the office, the First say that the general issue is waived.

Finally, the court says it can’t review a decision not to grant a downward departure because his criminal history might overstate his prior crimes’ seriousness, but, of course, the sentence could be reviewed for reasonableness.

And finally, a lifetime of supervised release is okay.

Comcast places limits on bandwith

So, rather than being squirley about how much of the internet you can use, they say that you can only use 250gb per month.  Tnx HackADay.

Comment: I think this is good.  Comcast’s limits are adequate for home use (and even most business uses).  They are “soft” limits, in that they don’t automatically terminate someone.  Moreover, Comcast is finally bowing to pressure that they honestly state what their limit is.  Most other ISPs have used weasel words which have generated large amounts of anger.

CA1: flip-flopping District Court judge leads to reversal

US v. Mala, Nos. 06-1887, 06-1888.  Tom Lincoln, a friend of the blog wins one.  The big issue is whether a confession should have been admitted.  The District Court seems to have had some doubts about the quality of the policework, but issued an ambiguous ruling.  Strangely, at trial, the judge claimed that the docket said that the confession could come in for impeachment purposes.  But, neither the government nor the court can find it!  The First makes two points:

• Carrasco's Sixth Amendment right to conduct his defense was hobbled by the district court's eleventh-hour decision to admit his confession. Carrasco had already testified when the district court ruled the statements admissible. We are aware that suppression of a confession, even when the defendant testifies inconsistently, might appear to be a license to commit perjury in one's own defense. But that does not justify surprising the defendant, after his testimony, with words previously ruled inadmissible.
• The district court is usually expected to abide by its own evidentiary rulings. Should a district court wish to reconsider a ruling, it may do so, although it should account for reliance on the previous ruling. But that is not what happened here. The district court misremembered its own ruling. Trial judges, like appellate judges, are fallible human beings. Errors are therefore to be expected. But allowing such an error to go uncorrected even though it may well have meant the difference between conviction and acquittal would certainly erode public confidence in the integrity of judicial proceedings

CA1: equitable shares of the profits in a Lanham Act case

Venture Tape Corp. v. McGills Glass, No. 07-1186.  It’s tape v. glass.  Tape won in a trademark infringement suit, after both parties moved for summary judgment.  The underlying issue was “likelihood of confusion” (as you can see, I don’t really understand intellectual property).  The First reminds us that “Actual confusion” isn’t the substantive law, and the fact that Glass was trying to lure customers using Tape’s mark allows for summary judgment. 

There are some difficult issues.  Glass asked for a jury trial.  The court conducted a remedies hearing, which Glass participated in.  The First says they waived that.

The First goes through whether the infringement was “willful” or not.  Anyway, the First affirms an award of an equitable share of the Glass’s profits, noting that once Glass showed Tape’s sales, it fell on tape to show what wasn’t attributable to the infringement.

The First also affirms an award of attorneys fees because this is an “exceptional” case.  The First says that this isn’t an abuse of discretion.  The award of fees is about half the underlying amount of the profits, but because there are no personal injuries involved, none of the “tort reform” caravan will be whining. 

CA1: affirmative defenses to sexual harassment discussed

Chaloult v. Interstate Brands, No. 07-2694.  This case involves the affirmative defense that an putatively vicariously liable employer may assert in a sexual harassment case under Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).  Essentially, employers can argue that “its own actions to prevent and correct harassment were reasonable and that the employee's actions in seeking to avoid harm were not reasonable.”  This case comes down to whether the employer “failed to take reasonable care to eliminate harassment when it might occur.”  In this case, it seems, they did.  Of note is the fact that both the harasser and the harassee both had the title of “supervisor.” 

I find it a little interesting that the First says that the Supreme Court made a “policy” judgment in their cases.  Now, we all know that courts entertain and accept policy arguments all the time.  However, usually it is considered bad form to tell the court that that is what you are doing.  And, of course, if you lose, many clients like it if you tell people that the court made a “policy” judgment as opposed to a “law judgment.”

Anyway, Lipez dissents saying that the majority got it all wrong.  If you litigate these cases, you need to take note (or better yet, have already read this case).

CA1: preponderance of evidence constitutionally okay in attorney discipline

In Re: Malcolm J. Barach, No. 06-8033 suspends a lawyer for two years based on the Massachusetts’ SJC’s suspension for failing to keep adequate records regarding client funds.  I guess the First Circuit sets out the framework litigating these issues. The attorney appeared pro se (hint: don’t do that).  He argued that Massachusetts’s burden for imposing discipline was too low (preponderance of the evidence), and its lowness was unconstitutional.  In essence, the constitution requires “clear and convincing” proof.  The First says that there is nothing wrong with that.

Strangely, when deciding whether a government attorney committed misconduct in the course of sending a poor person to jail, the First seems to apply a higher standard.