Appellate Law & Practice

CA1: Indonesian Christian not oppressed

Kamuh v. MuKasey, No. 07-1639 (unpublished) denies a petition for review of an asylum petition.  The petitioner is an Seventh Day Adventist from Indonesia.  Most of the incidents that the petitioner pointed to establish persecution seemed to involve private citizens, and that the government seemed interested in punishing the perpetrators. 

CA1: Selya surprises and says that fast-track progarms can be considered Post-Gall

US v. Rodriguez , No. 06-2656.  This case is by Selya.  The appeal involves whether post-Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) the First’s holding that sentencing disparities due to lack of “fast-track programs for the processing of immigration crimes” in some districts must be remedied by variances.  Without reading the case, I started writing snarky comments about Selya.  Then I read it, and he surprised me!  He actually holds that Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) matter. 

He writes:

In fidelity to the Supreme Court's new gloss, we abrogate Andújar-Arias [507 F.3d 734 (1st Cir. 2007) (our coverage here)] to the extent that it is inconsistent with this opinion, vacate the sentence appealed from, and remand for resentencing.

His analysis can be boiled down to this:

• Like the crack/powder ratio, fast-track departure authority has been both blessed by Congress and openly criticized by the Sentencing Commission.
• ... Like the crack/powder ratio, the fast-track departure scheme does not "exemplify the [Sentencing] Commission's exercise of its characteristic institutional role." ...
• the Commission has "not take[n] account of empirical data and national experience" in formulating them...
• Thus, guidelines and policy statements embodying these judgments deserve less deference than the sentencing guidelines normally attract.

...If raised, the sentencing court will have to answer this question in a particular case. And where that answer is favorable to the defendant, a variant sentence premised on perceived inequities attributable to the availability elsewhere of fast-track departures would, given the Supreme Court's new gloss, seem to be entitled to deference "even in a mine-run case." ...

I got some more... and even stuff for non-criminal law types.

CA1: sentencing, and car protective sweeps

US v. Diaz, No. 06-2378.  The court affirms the denial of a motion to suppress evidence obtained in a “protective sweep” of a car after the defendant was cuffed.  The District Court comes up with this silly rationale, such a search isn’t reasonable as "to conduct a protective search after putting a suspect in handcuffs during a Terry stop so that the suspect may be released from handcuffs as soon as police safety is assured."  Sure.  The District Court is really concerned with releasing “from handcuffs” the kind of person that would be subject to a protective sweep. (He was a minority.  Later it was determined that he was an illegal alien with a gun.  Somehow white people in nice cars don’t get this treatment.)  The First says that there was other evidence that the car match the description of a car at another shooting.  The First says that Thornton v. United States, 541 U.S. 615 (2004) applies to any kind of search (even those undertaken before a suspect is arrested). 

Also not surprisingly, the District Court decides that the government’s failure to provide translations doesn’t create reversible error.  Yet, somehow, when civil litigants fail to do this in Puerto Rico (where the local rules require such translations), peoples’ cases (usually civil plaintiffs) fail.   

The most interesting argument seems to be that because he was acquitted of being a “felon in possession” the District Court can’t apply the ACCA’s sentencing enhancement.  But, the First says that the District Court can find such facts on its own.  Who needs juries, anyway?

Sufficiency arguments fail, as do Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998) arguments. 

CA1: drug quanity and Apprendi give the plain error brush-off

US v. Portes, No. 05-1691.  This is an Apprendi and Booker sentencing appeal which the defendant loses.  Essentially, it comes down to a question of drug quantity. The jury wasn’t charged on quantity issues.  The District Court conducted a hearing.  This resulted in a higher statutory mandatory minimum.  On plain error review the First says that because there was “overwhelming” and “uncontroverted” evidence of quantity this isn’t a problem.

Likewise, on plain Booker error review, the First says he couldn’t have done any better with a truly advisory system.

CA1: policy not ambiguous

Prostkoff v. Paul Revere Life Insurance Company,  No. 06-2699 (unpublished).  The plaintiff argued (in a declaratory judgment action) that his insurance policy entitles him to cost of living increases on his disability benefits for the duration of his life.  The parties disputed whether a “lifetime benefit rider” contained ambiguous language that contradicted another part of the policy.  But, the First says it isn’t ambiguous. 

CA1: post-judgment clock begins to run not from time of determination of damages (not liability)

Radford Trust v. First Unum Life Insurance Company of America, No. 06-1992.  This is an ERISA case.  Normally I don’t like reading pure ERISA cases (sorry, Stephan).  But, this one concerns something of more general applicability, “the district court's determination of the date on which postjudgment interest on an award of benefits would begin, and the effect of this determination on the court's discretionary decision to award prejudgment interest.”  While the court acknowledges that setting dates can be a matter of discretion, when the District Court sets them based on a view of the law, the Court of Appeals gets to review that issue de novo.  (Note to all lawyers: remember that.)  The court looks at Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 836 (1990), and finds that “a finding of liability alone without a corresponding determination on damages does not suffice to start the clock on postjudgment interest.”  The court rejects the idea that this matter should be resolved like attorneys fees issues, or like cases where only the calculation of an amount is left to determine.  Therefore, since the court erroneously started the post-judgment clock, it erroneous ended the pre-judgment clock. 

CA5: Respect Wikipedia's authority!

The Fifth Circuit takes a break its usual shenanigans and cites Wikipedia for a term of art:

The word “accrue” is an accounting term that means to record or calculate an item of income or expense that has not yet been paid. http://en.wikipedia.org/wiki/Accrual (accessed: March 23, 2007).

Exxon Mobil Corp. v. Commissioner, No. 06-60276, n. 1 (5th Cir. 4/10/07)

Tnx TaxProfBlog.  I think this is the most egregious use of Wikipedia to date by a Court of Appeals.  I am not even sure that this definition is completely correct within the meaning of the Tax Code, but I am not going to get into a “revert war.”  Most of the time, they are used to explain pithy slogans. Most uses of Wikipedia as a factual basis have been reversed.  This seems to be the first time that a term of art (in which real money for real litigants) is defined by reference to Wikipedia.  (For a list of characteristics of Wikipedia contributors, go here.)

 

Finally, I need to put something in perspective:

Trent Lott (United States Senator that kept his job): When Strom Thurmond ran for president, we voted for him. We’re proud of it. And if the rest of the country had followed our lead, we wouldn’t have had all these problems over the years, either

Don Imus (radio personality that lost his job):  Blah blah blah, basketball, hair, hos.

 

Clerk's entry of judgment starts appeal clock, even when court fails to approve judgment

In Burnley v. City of San Antonio, No. 04-51181 (5th Cir. Sept. 15, 2006), plaintiff won a general verdict against defendant awarding $165,000 in compensatory damages. The clerk entered judgment on the verdict, but the court never approved the judgment. Several months later, the court awarded $31,530 in attorney's fees, and within 30 days after the attorney-fee award, the defendant attempted to appeal both the judgment on the verdict and the award of attorney's fees. Here's the timeline:

1. February 2: Jury verdict; clerk’s entry of judgment; no court approval.
2. February 10: Plaintiff moved for attorney’s fees under FRCP 54(d)(2).
3. July 2: 150 days elapsed after clerk’s entry of judgment on the verdict.
4. September 16: Plaintiff’s fee motion granted.
5. October 18: Defendant filed, and court granted, FRCP 58 (c)(2) motion to treat fee motion as FRCP 59 new trial motion to delay running of time to appeal.
6. October 18: Court approved the form of the judgment on the merits entered by the clerk on February 2, 2004.
7. October 18: Defendant filed notice of appeal.

Issue: When the clerk entered judgment, did the appeal clock start ticking even though the district court never approved the judgment? Answer: Yes. The court's reasoning:

[U]nder FRCP 58(b)(2)(B), when 150 days had run from the clerk’s entry in the civil docket under FRCP 79(a), the clerk’s entry by law constituted the entry of judgment of the court for purposes of FRCP 58 and other Federal Rules. Because the clerk’s entry under FRCP 79(a) was recorded on February 2, 2004, the entry of judgment of the court 150 days later fell on July 2, 2004.3 Thus, the City of San Antonio’s notice of appeal, filed on October 18, 2004, was filed more than 30 days after the entry of the judgment of the court and was not timely under FRAP 4(a)(1)(A).

Tip o' the hat to Bob Markle for spotting this one.

CA5 - Crawford not retroactive

Lave v. Dretke (Garza, J.)

The Fifth Circuit holds that Crawford is not retroactive.  Judge DeMoss dissents!

CA5 - Collateral Discovery Order

Goodman v. Harris County (Clement, J.)

In this 1983 suit, the district court ordered the police officer defendant to submit to a psychological examination.  The reasoning being that the officer planned to introduce an expert opinion concerning how he would have likely reacted to particular events at the time of the incident.  The court of appeals holds that this discovery order is not immediately appealable.