Appellate Law & Practice

CA1: arbitration award affirmed

UMass Memorial v. United Food and Commercial Workers Union, Nos. 07-2527; 07-2528.  The hospital lost an arbitration (against the union).  The hospital went to the District Court, seeking to vacate the award.  This seems to be a dispute about whether the statute of limitations was followed because of a dispute about whether incidents were “episodic” or “continuous.”  The District Court noted that the arbitrator’s decision could be construed two ways.  But, the First says that it is the “result” not the “reasoning” that is what the District Court should be analyzing.  An award of fees in favor of the union is affirmed. 

CA1: PURPA case barred by SOL (and Steel Co issue)

Greenwood v. NH Public Utilities, No. 07-2322.  This case begins with “This case was brought by the owner of a small renewable hydroelectricity producing company.” So, he loses.

Before getting to the energy nerdery, the First has to explain how it will jump over the jurisdictional issues It writes:

While we would ordinarily reach the jurisdictional question first, we choose to resolve this case on other grounds. Although the Supreme Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998), generally barred the practice of "hypothetical jurisdiction," this circuit has treated Steel Co.'s admonition as having limits. See McBee v. Delica Co., 417 F.3d 107, 127 (1st Cir. 2005) [our coverage here]; Parella v. Ret. Bd. of the R.I. Employees' Ret. Sys., 173 F.3d 46, 53-56 (1st Cir. 1999). This court has consistently interpreted the Steel Co. rule as applying in its strict form only to issues going to Article III requirements.

Got it?  Steel Co. v. Citizens for a Better Environment only applies when the First Circuit says it does.

Anyway, this is a Public Utility Regulatory Policies Act ("PURPA" or "the Act") of 1978, 16 U.S.C. § 824a-3 case.  The New Hampshire Public Utilities Commission rescinded a 30-year rate agreement because “ It concluded that it had made a mistake in the 1985 order, and that it had not, as PURPA and the FERC rules required, treated Greenwood's three [qualifying cogeneration and small power production facilities] in a manner ‘consistent . . . for facilities that are similarly circumstanced.’” Rather than appealing to the state Supreme Court or petition FERC for an enforcement proceedings, seventeen years later, the plaintiff asked the District Court to enjoin the commission from enforcing the change, effectively reinstating the old rates.  The District Court issued the injunction.  The First reverses, on statute of limitations grounds and notes that the plaintiff is the “of a small renewable hydroelectricity producing company.”

This case was brought under 28 U.S.C. § 1331, there isn’t a Federal Statute of limitations, so the First chose N.H. Rev. Stat. § 508:4, because the First says that this claim is akin to “New Hampshire law claim of tortious interference with contractual relations.”  But, the accrual date isn’t a matter of federal law.  It also rejects the idea that these claims are analogous to breach of contract claims.  Arguments about equity fail, because tolling the statute of limitations, apparently, would adversely impact third parties.

CA1: plea was valid and entrapment fails

US v. Otero, No. 07-1555 holds that in a “Rule 11" (i.e. a change of plea) proceeding, a defendant was “aware of the intent element of the drug-trafficking offense” even though the judge didn’t read it out loud.  He raises an “entrapment” argument, but because he plead guilty and there was no real chance that he would succeed on that defense, that fails, too.

CA1: SEC wins something

Duggan v. SEC, No. 07-2494 (unpublished).  I think this is a FOIA request.  The opinion reads, in relevant part “The Securities and Exchange Commission made an adequate showing at summary judgment that it had conducted a search that was reasonably calculated to disclose requested documents....The appellant could not rely upon mere innuendo and speculation to overcome that showing....Finally, the appellant made no showing that the district court abused its broad discretion in ruling on his discovery motions.”

Let the blabber start on the Marriage cases

This blog is for ethical lawyers only.  As an ethical lawyer, you will have already read In re Marriage Cases (if you did not, you are not ethical). If you have not read that case, then you are not an ethical lawyer and rather than breath air like a mammal, you malpractice. 

Anyway, Bill Mears of CNN reports that:

An appeal to the U.S. Supreme Court is likely. The federal high court has never addressed the question of same-sex marriage.

Why did he say that? Did the California Supreme Court rely on the United States constitution?  Did Mr. Mears even read the case?

Well, did he at least read Footnote 28:

Plaintiffs base their constitutional challenge in this case solely upon the
provisions of the California Constitution and do not advance any claim under the
federal Constitution. (See Cal. Const., art. I, § 24 [“Rights guaranteed by this
Constitution are not dependent on those guaranteed by the United States
Constitution”].)

So, why does he think that an “appeal” to the United States Supreme Court is likely?  How could someone rise to the exalted rank of “producer” at CNN without at least quoting footnote 28?

Blackmail and extortion

C&F questions why either of these things can or should be crimes.  I agree.  Why can’t people offer to not exercise a First Amendment right for cash?  Hell, most of us agree to waive constitutional rights in exchange for compensation all the time.  Why is it that different rules apply when the “right” we are waiving is the “right” to speak about a crime someone else committed?

 

Update: Although I have a constitutional right to scream vulgarities and watch pr0n, someone just offered me cash (and a 401(k)) to not only refrain from doing those things, but to express the views of others. Should I call the FBI?

CA1: a strange 1983 statute of limitations problem

Cao v. Commonwealth of PR, No. 07-1394.  This is a 1983 case brought by a an “an elderly resident [who was] was removed from her home, made to undergo a psychological evaluation, and placed in a substitute home and, later, a state institution for the elderly.”  This comes down to a statue of limitations issue (analogizing to Puerto Rico’s statute of limitations).  “ The Commonwealth identifies this as occurring on March 16, 2004, the day Cao was first removed from her home, while Cao instead puts forth August 2, 2005, the day she was notified that the state court had dismissed all custody proceedings against her.”  The First says that the commonwealth won, because this is when she knew of the injuries, and equitable tolling doesn’t apply.    But, is the First really saying that she should have brought a 1983 action while the state court custody proceedings were proceeding?  Wouldn’t that be considered some kind of impermissible collateral attack.

CA1: guilty plea prevents collateral attack on deportation order

US v. Vargas, No. 07-2536 (unpublished).  A defendant plead guilty to “illegal re-entry” even though he said that he wanted to contest the due process in the underlying deportation order, but the First says that the guilty plea operates as a waiver on that issue.

CA1: consecutive sentences, brandishing, and all that

US v. Feliciano-Rodriguez, No. 06-2719.  This is a drug conspiracy appeal.  Pretty exciting facts... including someone in the witness protection program. The government seems to concede a lot on appeal, essentially saying that the District Court judge went too far in trying to send someone to a tax-payer supported hole.

The biggest issue, I would say is that the First circuit says that Consecutive Sentences for the use of a firearm as part of a conspiracy violate double jeopardy.

The government concedes the life sentence imposed on See 18 U.S.C. § 924(c) and (o) violated the 20 year statutory maximum.  Likewise, the government also concedes that the defendant never “brandished” a firearm or made it known to people.  So, the conviction under 18 U.S.C. § 924(c)(1)(A)(ii) is vacated. 

The first says that the District Court committed “clear error” by finding that dealers worked “every day” when in fact they worked “Every other day” (based on the record).  However, the First concludes that this is harmless (yet clearly erroneous). 

CA1: closing the courtroom is okay during contempt proceeding, as are some redactions

US v. Bucci, Nos. 06-2746, 07-1087.  The facts of this case go on and on, but it essentially comes down to dirty-cops-turned-drug dealers.

The really big issue is the “courtroom closure” issue.  “Bucci argues that the district court erred by closing the courtroom during jury selection and later during a contempt proceeding against Raftery [who was refusing to testify].”  The First says that the jury selection argument needs to be developed on collateral review.  But, the First explains that the Sixth Amendment doesn’t really apply to civil contempt proceedings, and this contempt proceeding was really “collateral” to the defendant’s trial, as no evidence was really presented against the defendant.

The second big issue if whether the government can present a partially redacted transcript.  Despite the FRE 106 rule of completeness, the First says that nobody was prejudiced.

But there is more below the fold

CA1: First bends a bit to affirm a child pr0n conviction

US v. Wilder, No. 06-2213.  This is a child pr0n conviction.  The first issue is whether the search warrant affidavit was based on stale evidence.  The District Court said it wasn’t stale, even though the affidavit only showed that he downloaded pr0n.  But, I guess everyone gets to “infer” that if one downloads things, they keep them. 

Applying United States v. Rodriguez-Pacheco, 475 F.3d 434, 439 (1st Cir. 2007) (our coverage here), the First says the government doesn’t need expert testimony to provide that “the children were real” and not computer-generated.  Judge Stahl disagrees with this part of the opinion, and says that the First is ignoring Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), and says that “The logic of adopting this rather odd assumption about the dynamics of the child pornography market as a rationale for concluding that the child in any given picture is unlikely to be virtual rather than real is questionable at best.”  But, Stahl is missing the point: the First WANTS to get caught up in the child pr0n hysteria.  People like it that way.  Whatever the case, Stahl figures that there was expert testimony on whether they were real children.

Then the First says it is up to the jury to determine whether the pictures actually depict “sexually explicit conduct.”  However, it is unclear what the minimum the government would need to introduce would be.

Regarding the “knowing” element of “receipt” of pr0n, the First says that “there was ample evidence of what he was looking for” and distinguishes it from case where people get a big ol’ barrel of pr0n (some legal and some illegal).

Regarding the “knowing” element of “possession” the First jumps over the issue of whether he preserved his argument and concludes that based on the “opinion” testimony of two experts he “knowingly” saved pictures into a certain place.

CA1: even though some people like naturopaths, it is still a fraud

US v. Curran, No. 06-2647.  The defendant was not a doctor.  But he only had training in naturopathy.  He would tell people that they were very sick and take their money.  Eventually he was charged with fraud, and he appeals the District Court’s sentence on the basis that the loss was calculated incorrectly and called him a menace and a bunch of similar names.   However, not all of his clients felt cheated, and he argues that the District Court didn’t differentiate between the angry clients and the happy ones in calculating his offense level under USSG § 2B1.1(b)(1)(I)(2005).  The First holds that “ That a few clients later relayed their satisfaction with this fraudulent treatment through defense counsel is immaterial in light of the clear evidence of professional impropriety and fraud, affecting all his clients, that permeated Curran's practice.”  Applying USSG § 2B1.1, cmt. n.3(A)(I), the First finds it was all a scam, and that there was little evidence that showed that some people knew he wasn’t a real doctor, but liked going to him, anyway.    On plain error view, his objections to the restitution order are rejected. 

CA1: home confinement as a condition of supervised release

US v. Marcano, No. 07-1050 holds on plain error review that supervised release can include “home confinement” where the period of supervised release was less than the statutory maximum term of imprisonment of two years.

GTMO unlawful command influence ruling in Hamdan

On Friday one of the military “judges” issues a 13-page ruling booting the “legal advisor” to the Convening Authority.  (It pretty much vindicates the convening authority, herself, ex-CAAF judge, Susan Crawford.)  I am not going to say that this indicates military commissions, but most of what is in the ruling is the kind of things that many people have speculated or had direct knowledge of, but this is the first time it appears in writing.  In fact, it is a rare “judicial” finding of fact regarding political actions  

It also contains the accounts of various Senators (i.e. McCain, Graham), judicial nominees (Haynes), and people everyone likes to talk about.  Also, General Hartmann wanted “sexy” cases. 

CA2: Wu-Tang Clan describes law students and drug dealers

What do law students and drug dealers have in common? 

They both subscribe to the Wu-Tang Clan’s philosophy described in the Second Circuit’s decision in U.S. v. Dent.  There, the court wrote that:

"Cream Team" is an acronym for "cash rules everything around me, together everyone achieves more." See Wu-Tang Clan, C.R.E.A.M., on Enter the Wu-Tang (36 Chambers) (Loud/RCA Records 1993) ("Cash Rules Everything Around Me, CREAM, Get the money, Dollar, dollar bill y'all . . . ."); see also Wyclef Jean, Sweetest Girl (Dollar Bill) (Columbia Records 2007) ("Cos I'mma tell you like Wu told me, cash rules everything around me . . . .").

Sunny Hostin’s normal failures to research

Sunny Hostin (an former prosecutor turned “commentator”) once again writes some “commentary” on CNN that, well, is stupid.  This time she complains about “pro se” defendants.  She begins by talking about criminal proceedings governed by the sixth amendment, but ends by diverging into British family law disputes.

Now, granted, we all think it is a bad idea for someone to represent themselves at trial.  But, her “commentary” seems woefully under-researched.

Her “prime” example of a pro se defendant is “Hollywood private eye Anthony Pellicano.”  Strangely, in his case, the jury is “sill out.”  She claims that because he wasn’t a seasoned lawyer he didn’t address all the evidence the prosecution mustered. The problem with this argument is that “seasoned” lawyers often will choose not to address some of the evidence the prosecution mustered.  It is a tactical decision.  Because she is talking to the lower classes she does not explain what evidence was mustered at trial.

By the end of the article, her broad glosses are just plain silly.  She starts listing people that represented themselves, and why it was a bad idea.

Heather Mills: In this lawyer's opinion, she could have gotten more money from Paul McCartney with a lawyer.

Wait a minute.  Ms. Mills was not a criminal defendant.  Ms. Mills was not even anywhere in the United States.  Moreover, because Ms. Hoston doesn’t provide any analysis of how Ms. Mills could have done better, it seems that Ms. Hoston is making it up.  So, there is no reason that Ms. Hoston should be trusted.

John Allen Muhammad, the convicted "D.C. sniper": This week, he's writing to prosecutors from death row, asking their help in ending his appeals.

Okay, this guy was a little nuts.  However, he only “represented himself” during opening statements (perhaps as a bid to avoid being cross-examined).  He was represented by lawyers throughout the rest of his trial.

Dr. Jack Kevorkian: He was convicted in 1999 of second-degree murder in the death of a patient.

Kevorkian was a little nuts.  Or at least a bit of an attention whore.  But, who could blame him?  His prior trials (with lawyers) ended in mistrials.  So, who could really blame him? 

Colin Ferguson: He managed to alienate everyone in the courtroom before being convicted of the 1993 shootings on a New York commuter train that killed six people.

Nuts.  But would have have really done better?  Is that what Hostin is trying to say?

Ted Bundy: He was convicted of killing sorority sisters in Florida and put to death. People brought frying pans to the prison on the day he was executed.

What does the “frying pans” have to do his self-representation at trial?  Do all prosecutors think it is cute to “fry” someone.  Why does it matter that the victims were “sorority sisters.”  Bundy, on the other hand was a law student.  Is Hoston really arguing that if he was represented by a lawyer he would have been acquitted and nobody would have brought frying pans to the prison?

Then she concludes with:

In fact, I can't think of a defendant who represented himself or herself as well, or better, than a lawyer. So maybe I'm biased, but lawyers are trained professionals.

First of all, let me provide a link to a story about a pro se defendant getting an acquittal in a murder trial. 

Secondly, I agree people that represent themselves are making stupid decisions.  But it doesn’t mean that they are necessary going to better at trial.  Perhaps if Ms. Hostin could provide real specifics (instead of talking down to people) we might have a real conversation here.

CA1: two unpublished Chinese immigration decisions

In honor of the Olympics, I give you two unpublished decisions holding that Chinese people didn't prove that they were oppressed enough.

• Huang v. Mukasey, No. 07-1484 (unpublished).  Petitioner is Chinese.  He says he believes in Democracy.  His claims fail on vagueness and credibility grounds because he can’t really show that he is that persecuted in China, as his family ran a grocery story and lived openly. 
• Lin v. Mukasey, No. 07-2301 (unpublished).  Another Chinese petitioner.  This person raises a “family planning laws” argument.  Again, mostly a credibility issue here.

Okay, there is more.

I am conflicted.  I think most talk of legal ethics is misplaced.  I also think that Judge Posner’s talk of law and economics is silly.  Legal Ethics Forum contains a link to the NLJ, which talks about how Posner has criticized Immigration Judges.  (The article contains a number of embarrassing legal errors (such as confusing IJs with ALJs, but since NLJ is just trying to suck up to BIGLAW, nobody cares.) 

Now, here is the rub.  Most people would probably agree that many (perhaps most) immigration judges are not taking their job too seriously.  And, their job, is to generally find facts on specific cases and to treat people fairly.  Sometimes there is a legal issue, but let’s set those thing aside.  However Posner doesn’t go into detail about which immigration lawyers are doing a bad job and why not.  But hey, I guess bashing unnamed lawyers that represent poor people for a living is always fair game.

CA1: Apprendi pipeline case sees briefly sees light in IAAC context

Martinez-Medina v. US, No. 06-1594 (unpublished).  This affirms a denial of a motion to vacate a sentence under 28 U.S.C. § 2255.  The grounds asserted are whether, in an “Apprendi Pipeline” case, the defendant was given ineffective assistance of counsel when she “misconstrued” Apprendi and conceded (to the First Circuit) that he would be subject to a higher sentence.  But the First says that in the underlying case, the higher sentence would have been warranted because the indictment did state enough (i.e. that there were “multi-kilograms” of cocaine in drug conpsiracy.)  Likewise, the First says that it had found in appeals of his codefendant’s cases that a failure of the jury to find drug quantity was harmless error.  Therefore, the statutory maximum was life, and there were no real Apprendi claims.  Therefore, appellate counsel’s concession didn’t make a difference.

The First ends by saying that 28 U.S.C. § 2255 motions can’t be used to make Booker retroactive.

CA1: dealing with a strained reading of claimed exemptions from a bankruptcy estate

In re Barroso-Herrans v. Lugo Mender, No. 07-1757.  This is actually a fairly interesting theoretical issue.  Government contractors got into a dispute with the commonwealth of Puerto Rico.  Then didn’t get paid.  So, the contractors sued the commonwealth and simultaneously filed for bankruptcy.  In their list of assets, they listed the lawsuits as an account receivable.  The bankruptcy court authorized Barraso’s lawyer to represent both Barrasco and the estate in prosecution of the suits.  But then Barrasco started asserting that the suits were not part of the estate anyway, and objected when the bankruptcy trustee “unilaterally negotiated a settlement” for about $100,000 on a $170,000 claim, which called for payment of the funds to the estate.  The bankruptcy court held that “...Barroso had exempted not the law suits but rather only a $4,000 partial interest in each suit, so the trustee could settle the suits and simply pay a total of $8,000 to the debtors.”  There was a suggestion of bad faith.  The First says that the determination of what has been claimed as being an exception (and not part of the estate) is really a factual matter of interpreting the schedules filed by the debtors, but a legal matter of “how a reasonable trustee would have understood the filings under the circumstances.”  So, looking at the schedules, the First says that Barrasco’s reading is implausible, it can’t figure out how the debtors discounted the contract disputes from well over $100,000 to $4,000, rather than listing the value as “unknown.” 

CA1: First remands for a real resentencing when mandate not followed

US v. Pena-Gonzalez, No. 05-1402.  This case was first before the court in United States v. Rodríguez-Marrero, 390 F.3d 1, 32 (1st Cir. 2004) when it remanded for re-sentencing.  The District Court didn’t hold a sentencing hearing, and instead it “trimmed the original judgment without sentencing him anew” as the government told it to.  (This matters because Booker might allow the defendant to escape a life sentence).

But, the First resolves the issue on the “law of the case” doctrine (the “mandate rule”) part of it, and holds that the District Court didn’t really take the letter and spirit of the mandate seriously, and the District Court should have read the mandate “like a statute.” 

The First then points out that the prosecution – as much as the District Court – is at fault, because it seems to have tricked the court into thinking that it had made a finding (that the crime was in furtherance of a drug conspiracy) that would subject him to life sentence. The First says that this trick deprived the defendant of his ability to allocute at sentencing which is “scared.”