Appellate Law & Practice

CA1: cops can take your drivers’ license without seizing you

US v. Ford, No. 07-2613 upholds a ruling denying a motion to suppress a gun.  Some cops leaned out the window and asked a poor person some questions and took his drivers’ license.  The poor person raised his hands.  He was not represented by counsel at the time and therefore probably did something wrong.  The First say that this encounter wasn’t a seizure because the cops were just asking general questions without turning on their lights.  The First says that “Raised hands” are a sign of protest as well. 

Anyway, taking someone’s drivers’ license and running it though the computer isn’t a seizure, and conducts some balancing test which somehow always goes against poor people. 

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: 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.

CA1: pleading the Fifth in one proceeding prevents use in later MSJ

SEC v. Ficken, No. 07-2532 affirms a grant of summary judgment to the SEC and against a broker for Prudential in a case brought under 15 U.S.C. § 77q(a), 15 U.S.C. § 78j(b), and 17 C.F.R. § 240.10b-5, in which the SEC argued that “Ficken intentionally concealed his identity and the identities of his clients while trading shares of mutual funds, in order to mislead mutual fund companies into processing trades that they otherwise would not have allowed.”  There is the usual discussion of Scienter.   Ficken was trying game the lag-time between prices of shares and funds that hold them.  This isn’t illegal, but mutual funds don’t like it.  To get around this, Ficken used different ID numbers. 

There is a paper trial and transcripts of NASD proceedings where he plead the Fifth. The First says “Ficken’s refusal to answer pertinent questions in the NASD proceeding bars his reliance on that testimony in opposing summary judgment” and therefore, “Ficken’s testimony would not be admissible because his assertion of his Fifth Amendment privilege or his refusal to answer questions prevented development of his testimony on closely related issues.”   It then discussed how he became unavailable.

CA1: no reasonable expectation of privacy in unpaid storage locker

US v. Lnu, Nos. 07-1780, 07-2020 (10/10/08).  This is a social security card fraud case.  The defendant was convicted under 42 U.S.C. § 408(a)(6).  However, the underlying question revolves around whether the cops could search a storage locker that he had not made payments upon.  The First focuses on the fact that the owner of the self-storage place had a lien on the property under state law.

The First says that some parts of the closing argument were not misconduct because, on the facts, they were supported by the evidence.  Likewise, the defendant claims that he was denied his right to testify but testimony from his lawyer says that he was so adequately informed.

CA1: Judge Dyk sides with defendants in Miranda case

US v. Jackson, No. 07-2510 (10/8/08).  This is strange.  Judge Dyk of the Federal Circuit sides with a defendant.  Usually when he is sitting by designation he rubber-stamps the District Court, sending someone to jail for a long time.  Anyway, let’s take a look at what is so bad.

It is a Miranda case.  The District Court found that the defendant was in custody, but not interrogated.

The cops did that silly cop thing they do to lay people: they hint at leniency.  No true American believes that crap.  During the course of this conversation at an apartment, the defendant said he might know where a gun was (as it wasn’t in the apartment), but he would need a couple of hours to find it.  The cop said he wasn’t free to leave.  Then they officers obtained “consent” to search the place from someone else.  Two guns were found, including one that the defendant “volunteered” was in a box of “Fruity Pebbles.”  Judge Dyk says that the question isn’t whether the defendant responds to a particular question but whether “The entire course of conduct of the officers must be examined to determine whether the statement was in response to unlawful questioning under Miranda.”  Judge Dyk seems to indicate that the silly cop-talk regarding possible leniency speaks to whether this is interrogation or not. 

At the end, the First says that the actual guns need not be supressed.

CA1: something was properly admitted

US v. Vasquez, No. 07-2796 (10/8/08).  This is really strange.  The First seems not be taking any of this appeal seriously, and is almost mocking of the defense.  Apparently the defendant is making an argument that something should be suppressed.  So, the First says that there was enough evidence that something shouldn’t be suppressed.  Whatever.  The opinion ends with this silly line, “Defense counsel on appeal is entitled to search the record for such unpreserved claims and call such claims to our attention, but they do not in this instance warrant separate discussion.”  The trick, you see, is to make sure that you have a big name making the arugments. 

CA1: okay to say prosecution doesn't have to disprove "other guy did it" theory

Farley v. Bissonnette, No. 08-1094 (10/8/08) denies a petition for a writ of habeas corpus.  The first issue was whether "the trial judge's instruction to the jury that the prosecution 'does not have the burden of proving that no one else may have committed the murder' [was] an error that was contrary to clearly established Supreme Court precedent as stated in In re Winship, 397 U.S. 358 (1970)."  The First concludes “Thus, where the defense attempts to cast the blame on someone other than the defendant, it is not unusual for the court to remind the jury that the government's burden is to show that the defendant is guilty--not that the other person whom the defendant seeks to blame is innocent.”  But really, we all know what is going on: the trial court thinks that the defendant is guilty and wants to make sure the defendant goes away.

The second issue is whether "the state court's decision that the trial judge's limitation of the petitioner's cross-examination of Ronald James, though error, was harmless beyond a reasonable doubt [was] an unreasonable application of clearly established Supreme Court precedent, namely, Delaware v. Van Arsdall, 475 U.S. 673 (1986)."  The First seems to just say that it was okay that this was considered harmless error.  Whatever.

CA1: First bends to help government prove negative in antique gun registration case

US v. Giambro, No. 08-1044 affirms a conviction for possessing an antique gun.  (He was acquitted of a number of state charges.)

The least interesting issue is under 26 U.S.C. § 5861(d), where the court holds that the defendant need not have specific knowledge of the registration requirement, but just knowledge of the statutory elements of the guns subject to the registration requirements.

More interesting is the admission of the ATF’s “Certificates of Nonexistence” of a registration record.  The maker of the certificate testified.  The First’s analysis isn’t that satisfactory. It basically says “other circuits have upheld their use” even though there used to be problems.

Finally, and without much analysis, the First says that it was fine for the District Court to exclude the testimony of an expert witness that had done some statistical analysis on the reliability of the ATF’s system of gun registration.  Because the First speaks in broad, general terms (and throws around words like “Daubert,” it doesn’t seem like it was taking this issue seriously.