Appellate Law & Practice

CA1: forfeiture remand in light of Santos and excessive fines clause

US v. Levesque, No. 08-1344.  This is a three million dollar forfeiture judgment against a drug mule.  The First says that yes, indeed, 21 U.S.C. § 853 authorizes money judgments.  Next, the First agrees with the parties that in light of the Supreme Court's decision in United States v. Santos, the District Court should figure out whether Santos requires that such forfeiture orders be based on "proceeds" or "receipts."

Then the First gets all intellectual about the excessive fines claus, and concludes "the purpose of imposing a forfeiture as a money judgment is to "permit[] the government to collect on the forfeiture order in the same way that a successful plaintiff collects a money judgment from a civil defendant. Thus, even if the defendant does not have sufficient funds to cover the forfeiture at the time of the conviction, the government may seize future assets to satisfy the order."

CA1: Fifteen year mandatory minimum for guy in wheelchair trying to produce child pr0n okay

US v. Polk, No. 07-2425 asks the question of whether the “ifteen-year mandatory minimum term of imprisonment under 18 U.S.C. § 2251(e)” violates the Eighth.  Selya writes the opinion so you can tell where it is going.  This is a pretty typical “seduction of cop posing as teenage girl” case.  The strange wrinkle is that the defendant was in a wheelchair and argues that he is harmless.  He was sentenced above the mandatory minimum, but the First explains that “The possibility exists that, but for the mandatory minimum, the GSR would have been more modest and the defendant's sentence would, accordingly, have been less.”

Selya says that “stern” penalties are acceptable.  Then Selya does some non-judging and holds that “Given the deference that courts owe to legislative judgments in the area of crime and punishment, it is predictable that most efforts to demonstrate gross disproportionality will fail.”  Whatever.  Anyway, Selya says that the sentence isn’t grossly disproportionate because, “In Congress's view — and that is the view that matters most — the production of child pornography is a profoundly serious matter. That is a reasonable value judgment, well within Congress's prerogative to make. [United States v. Saccoccia, 58 F.3d 754, 788 (1st Cir. 1995]. Therefore, Congress was entitled to punish the offense heavily.”  Moreover, the fact that it was an “attempt” doesn’t matter.

CA1: District Court made all sorts of errors in awarding sanctions

Jensen v. Phillips Screw, No. 07-2766 vacates sanctions under 28 U.S.C. § 1927 for vexatious litigation, because the District Court found the law firm in a class action had not completely investigated just what was up with the proposed class representatives (some wanted to settle, and some used a different kind of screw).  The District Court didn't hold an oral argument or an evidentiary hearing, despite being asked.  The First points out that "A sanctions order must be evaluated on appeal in light of the record that was before the district court at the time the order issued."  But that there is no entitlement to oral argument.

Whatever the case, this seems like a typical case where a District Court got its hate on for a lawyer. 

The First then holds that sanctions under 28 USC 1927, were not available for whatever is in a complaint.

On the other sanctions counts, the First says it was an abuse of discretion for the District Court to reject one party's view of event because it is hearsay, but credit another hearsay account.  Likewise, the First says that the District Court erred by considering that a declaring that the law firm conceded an issue when in fact it was only responding to the opposing argument's specific accusations.  Then, the First rejects another sanctions count that was based on those sanctions counts.

CA1: speedy trial act and conspiracy counts

US v. Grullon. No. 07-1982 (10/24/08).  In this case, the First turns back a sufficiency challenge even though all the testimony came from the defendant’s “confederates.”  Also, the first says that interpreting “drug talk” to be, in fact “drug talk” was for the jury.

But, there is an actual legal issue in there.  There was a drug transaction that was dismissed for violation of the Speedy Trial Act (because an indictment wasn’t filed quickly enough).  But the government wanted to rely on that transaction as part of the conspiracy charge.  The First concludes “the statute says nothing about barring the institution of a new charge for a different offense based on some or all of the underlying transaction and certainly nothing about barring the use of pertinent evidence of the dismissed charge so far as it might prove the new charge.” 

At the end of it, is an interesting prosecutorial misconduct issue.  The AUSA said that jurors should "follow [their] oath ... [and] find the defendant guilty . . . because it is the right thing to do."  The First “previously told prosecutors not to use such language.”  But, the First says that this was probably harmless, so the message is clear: prosecutors are free to use such language.  So, a green light is given.

Also, some anti-lawyer jokes were found in the jury room.  No evidentiary hearing was held on what the jurors were thinking.  The First says that this was okay. 

CA1: some – but not all – cops are abusing trust by buying drugs

US v. Arroyo, No. 07-2423. An ex-cop got busted for cocaine and ecstasy possession (actually, it seems he was a cop at the time he was busted, but the opinion is not clear on that).  He was charged with conspiracy.  At sentencing, the judge departed upwards because he USED to be a cop and “the district court plausibly found that in this instance the very bad example set by having a police officer buying and making available illegal drugs enhanced the seriousness of the crime.”  The First points to the fac that “Arroyo had in fact worn his uniform for some of the purchases, and some of those who obtained drugs from him socially knew his position and could have deemed his furnishing of the drugs as trivializing the seriousness of the offense--enhancing a risk already present where use is recreational and liable to be brushed off as nothing to worry about.”  So, the First rejects the idea that the District Court was automatically giving cops that get caught using drugs a higher sentence.  The first says “Yet the possibility that a fact or factor like occupation cuts one way in one case and a different way in another means nothing, so long as a different context makes that sensible.”

The First says there isn’t much of a double jeopardy argument since the sentences were run concurrently.  The government seems to have won part of the double jeopardy argument by concluding that two conspiracies were a “close call” but because there was a difference in WHO the conspirators were, this wasn’t a problem.

CA1: no contempt for attorney that disclosed grand jury materials that he provided

In Re: Grand Jury (Islamic Investment Company of the Gulf (Bahamas) Limited), No. 07-2353 (10/10/08 -- reissued for obvious reasons).  This is an interesting case.  Although some Republicans are trying to scare us with the use of the word “Islamic” or “Muslim” (some of the people writing these applause lines are lawyers who have Muslim friends but just like trolling the “lay shit”).  So, to all you Muslims out there, I say this: don’t take it personally.  Americans hate people more on the basis of their class than religion.  For some reason, everyone likes Bahamians.  Anyway, where was I?

Oh, this case is interesting because it involves the power of a District Court to hold someone in contempt.  Essentially, IICG was the subject of grand jury proceedings.  The AUSA started communicating with a lawyer for a former employer that had sued them, and the lawyer told the AUSA about the state court proceedings and gave the AUSA copies of various discovery orders and pleadings.  But the lawyer didn’t stop there.  He gave the documents to various members of the press.  IICG pointed to the local rule that said that everything provided to the grand jury is presumptively under seal, and said that the lawyer should be held in contempt.  The District Court refused (in a long opinion).  IICG says that the trial court didn’t understand that it had the inherent power to hold the lawyer in contempt.  (The District Court concluded that the lawyer wasn’t subject to any of the local rules regarding grand jury secrecy.)

The First says that the lawyer didn’t know that the documents he provided were sealed in the first place, and besides this lawyer isn’t a member of the Massachusetts bar and lacks a reason to know that he was violating a rule.

Sorry for being away. Just catching up now.

I know it is unethical and immoral and grounds for disbarment to miss a case (and, quite frankly, it is malpractice to not read a court of appeals case), but I got a note from my spiritual advisor.

CA1: tax blindness instruction

US v. Anthony, No. 07-1670.  Oh god, this is sad.  This guy was a Coastie for two decades.  Then he decided he didn’t need to pay taxes.  On the one hand, I hate tax cheats.  On the other hand, I can’t help feeling sorry for the guy.  He was convicted under 26 U.S.C. § 7201.  The District Court gave a “willful blindness” instruction.  There is a good discussion of the law here, but it concludes that there was no error.  Essentially, there was evidence that he “willfully” blinded himself to the state of current law, the government was entitled to such an instruction.  The defendant also loses on his bid to have a bunch of “statutes” admitted, though he was permitted to read summaries to prove up his subjective belief.  Fine by the First.   

All the sentencing errors are affirmed.  However, I should note that the District Court did rely on a guideline that says that a sentence should instill respect for a duty to pay taxes.

CA1: No 5th or 6th problem in trickery case

US v. Boskic, No. 07-1188.  This is a big case under the Fifth and Sixth amendments.  The First sides with the government.  The defendant, a Bosnian, was “guilty on two counts of making false statements in his applications for refugee status and permanent residency in the United States. See 18 U.S.C. § 1546."  Essentially, he is claimed to have lied on his application for refugee status by omitting the fact that he was involved in killing a lot of people when he was in the military. 

You can find more of this post downtown.

Ten Reasons Obama is anti-American

1. He did not make partner at his firm.
2. There is no evidence that either of his daughters have been admitted to law school, let alone secured a summer associate position.  Not a single judge has violated the LCHP to extend a clerkship to either one of them.
3. He never once mentions the fact that he wants detailed-oriented people with exemplary academic backgrounds and strong writing skills to serve on his cabinet.
4. There is not one shred of evidence that Obama has a PACER account.
5. Rarely bosses support staff around like arrogant jackass.
6. He refuses to conduct on-campus interviews.
7. He thinks the “Bluebook” has something to do with revisionist tax legislative history.
8. His blog does not link to this one.
9. Unlike Fred Thompson, he never served as a lobbyist. 
10. Wife does not own beer or ketchup company.

Update: Time Magazine has uncovered indisputeable objective proof that one of Obama's relatives was undead.