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Appellate Law and Practice 
Daily summaries of appellate cases from federal circuit courts of appeal. On the weekends, the blog provides appellate practice tips and book reviews.
Post Frequency: 1.8/day Last Entry: December 10, 2008 at 16:15:09 Recent Entries: 612
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CA1: AEDPA leads to another prosecutorial misconduct green light
Posted on August 15, 2008Dagley v. Russo, No. 07-2059 is an affirmance of a habeas denial on the basis of prosecutorial misconduct in the form of prejudicial misstatements during closing arguments that didn?t get a curative instruction, thinking that a jury of non-lawyers would...
CA1: unpublished opinion pretending to discuss Fed. R. Crim. P. 41(g) statute of limitations
Posted on August 14, 2008Santiago-Lugo v. US, No. 08-1462 (unpublished) summarily affirms a District Court?s ?dismissal of his claim pursuant to Fed. R. Crim. P. 41(g) for the return of [seized, but not forfeited] property as barred by the statute of limitations.? Now, despite...
Which comment requires recusal ?
Posted on August 13, 2008Judge A: I don?t like crime. Crime is bad behavior that is destroying our cities and towns and our future. Criminals are bad people. Judge B: The government should not be bringing certain cases. Not only are they wasting the...
Poor people subject to 24-hour curfew
Posted on August 13, 2008AP reports: ELENA-WEST HELENA, Arkansas (AP) -- Officers armed with military rifles, some with laser sights, have been stopping and questioning passers-by in a neighborhood plagued by violence that's been under a 24-hour curfew for a week. Chief Fred Fielder...
CA1: Brazilian not oppressed by ANY government
Posted on August 13, 2008Lordes v. Mukasey, No. 07-1968 denies a petition for review of a Brazilian. Okay, how are Brazilians oppressed? All they do is Samba and get plastic surgery. He was a member of a union. The First rejects the idea that...
CA1: super-waiver of § 3582(a) issue at sentencing
Posted on August 13, 2008US v. Walker, No. 07-2266 holds that a defendant intentionally abandoned her objection to a sentence that considered ?her need for mental health and substance abuse treatment when determining the length of her prison sentence.? Counsel had argued that ?...
More on scienter
Posted on August 13, 2008Kevin LaCroix has an interesting (albeit late) account of New Jersey Carpenters Pension & Annuity Fund v. Biogen Idec which we covered here.
CA1: government has all the power under 3E1.1(b)
Posted on August 12, 2008US v. Beatty, No. 06-2481. While the proceedings below are pretty interesting, this comes down to a question of whether the government has discretion to move for a § 3E1.1(b) (responsibility) (as opposed to (a)) reduction for acceptance of responsibility...
CA1: law of the case and preliminary injunctions
Posted on August 12, 2008Naser Jewelers, Inc. v. City of Concord, No. 08-1305. If you were a good lawyer, you would have read the earlier opinion, 513 F.3d 27 (1st Cir. 2008), and our coverage here. As you may recall, in that decision, the...
CA1: unpreserved errors
Posted on August 11, 2008US v. Famania-Roche, No. 07-1499. This is yet another Puerto Rican drug conspiracy appeal. The evidentiary issues involve Federal Rule of Evidence 801(d)(2)(E) (co-conspirator statements) that were unpreserved. And since she the defendant doesn?t even proffer any theory that the...
CA1: OSHA was right ? they could have turned off the power lines
Posted on August 11, 2008Harry C. Crooker & v. OSHRC, No. 07-2770. This case begins when OSHA determines that a live wire is too close to a bulldozer. The construction company says that it would be infeasible to comply. But, as an evidentiary matter,...
I just got a ?hot hope injection.?
Posted on August 11, 2008Greetings from China. This week, I am partying with not only Falun Gong, the PLA, the Czech Squat-Thrust Teams, but many practitioner of Raëlism. I never knew there was so many of them. By texting ?VP? to 62262 (i.e. OBAMA),...
CA1: Indonesian Christian not oppressed
Posted on August 09, 2008Sinurat v. Mukasey, No. 07-2230 (8/8/08) denies the asylum petition of a Christian protestant. The IJ and BIA found no connection between a beating and government oppression. He says the agency ignored his argument. The First says they did not.
CA1: a further remand for time-served and parsimony issues
Posted on August 09, 2008US v. Diaz-Fontanez, No. 06-2061 (8/8/08) (unpublished). We gotta start calling these cases ?Booker Boomerangs.? Because, after being given a Booker remand, it is back. And, it is going back again. The fact that it is unpublished is somewhat disturbing...
CA1: specific intent required in ERISA retaliation claim
Posted on August 09, 2008Kouvchinov v. Parametric Technological Corporation, No. 07-2395 (8/8/08). This is an ERISA retaliation claim. The plaintiff claimed that his employer retaliated against him for using his short-term disability benefits. The claim came the day before a layoff was to take...
Programming note
Posted on August 08, 2008Still covering the Olympics. I?ve been busying partying with the hot guys and sexy gals from Falun Gong. If anyone knows how to have a good time, it is these wonderful folks. Anyway, they came in to borrow my portable...
Strange news from Maine
Posted on August 08, 2008As you know, I like 1) cellphones; 2) blind people; 3) Maine; and 4) lawyers. AP reports: PORTLAND, Maine (AP) - The chief executive officer of Maine's Iris Network faces criminal charges after flying into a rage over his daughter?s...
CA1: Romanian ex-flyboy not that oppressed
Posted on August 07, 2008Alexandrescu v. Mukasey, No. 07-2732 denies a petition for review in an asylum petition. This guy sounds interesting. He was a Romanian Air Force officer under the communists who complained that the ideological part of being a communism party member....
CA1: qualified immunity in joint-decision-making
Posted on August 07, 2008Philip v. Cronin, No. 06-1860. This case affirms a Fed. R. Civ. P. 50(a) motion for a directed verdict. Though the District Court gave a lot of reasons for directed verdict, the First says that the defendant was entitled to...
CA1: what is enough of a risk under the PSLRA to show scienter
Posted on August 07, 2008New Jersey Carpenter v. Biogen Idec Inc., No. 07-2626 affirms the dismissal of a Private Securities Litigation Reform Act of 1995 ("PSLRA"), Pub. L. No. 104-67, 109 Stat. 737 case. The underlying issue involves a drug company with a drug...
Another issue not on appeal
Posted on August 07, 2008AP reports GUANTANAMO BAY NAVAL BASE, Cuba - A military jury has sentenced Osama bin Laden's former driver to 5 1/2 years in prison for aiding terrorism, making him eligible for release in just six months. Salim Hamdan was acquitted...
Blog becomes TV show
Posted on August 07, 2008The Indefensible Guy?s Series, Raising the Bar, is coming to TNT. A lot of the archetypes seem true. Also, the previews reveal some nudity. I think they also say "ass." I like it when they say "ass" on TV. This...
Greeting from China
Posted on August 07, 2008Contrary to popular belief, it is quite easy to blog from China, despite the fact that the Chinese culture favors censorship and brutality. CNN is a bunch of amateurs.
Kozinski puts breaks via mandamus on US Attorney screwups
Posted on August 07, 2008So, some defendants are pleading guilty before a magistrate to violations of 8 U.S.C. § 1326. Then, when it comes time for the District Court to approve them, the US Attorneys say that the ?magistrate judges had erred in conducting...
CA1: no administrative tolling in 1983 actions
Posted on August 06, 2008Moran-Vega v. Cruz-Burgos, No. 07-1682. This is yet another Puerto Rican political discrimination cases. The big issue is whether the borrowed statute of limitations 42 U.S.C. 1983 are tolled by the pendency of administrative proceedings. The First rejects a ?continuing...
CA1: First says that Pho withstands Kimbrough, regardless of text
Posted on August 06, 2008US v. Russell, No. 07-1790 affirms a sentencing after multiple Booker remands. This is a Cocaine base case. Although this is a pre-guidelines-modification sentence, ?The [District] court ... concluded that it could take into account the proposed crack cocaine guideline...
More pictures of Happy Execution Bus
Posted on August 05, 2008Based on this post, I got a number of requests for more pictures of the Numner One Happy Execution Bus made by Jinguan Auto. They also make ambulances. Ambulances and Execution Busses. So, look here and here. (That url is...
Chitty on Criminal Law now on Google Books
Posted on August 04, 2008A lot of people write in asking where they can get a copy of Joseph Chitty's A Practical Treatise on Criminal Law. So, whether you are in the business of sending innocent Americans to jail, make your living getting criminals...
CA1: individualized loss determinations, Booker, and ID theft
Posted on August 04, 2008US v. Diaz-Correa, No. 06-2721 (unpublished). Now why the heck is this unpublished? This was a Booker remand in an ID theft case. Now it is back. However, it comes down to some very specific Guidelines issues. Most of which...
CA1: the DMCA the Section 553 of the CCPA and circumventing pay-per-view
Posted on August 04, 2008CoxCom, Inc. v. Chaffee, No. 07-2030. This appeal includes a rough description of how pay-per-view programming works. The Chaffees would sell a box which would essentially make it possible to get a limited amount of programming. These boxes are really...
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The American Bar Association has recently published its new Standa...
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My fiance's check is DD into a local credit union. Bank seems to have a pattern of "invisibly holding" charges from the debit card until just HOURS before his DD is processed (and this is after hours, of course). Over th
Have your fiance take the information you've collected and go into the bank...
I am being accused of hitting a 7 yr old child with my car, but I honestly don't think I hit the child. The Child was never knocked down, ran around my car to go back to ball practice, and was walking around with the par
You are in a serious situation. Get a lawyer immediately. Make no statements to ...
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Acute perpendicular parking #NYPD #NYFD
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Parallel parking gone bad. Too much gas UES NYC
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UES NYC
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Twitter suspends journalist critical of broadcast partner's coverage on dubious grounds @guyadams #nbcfail #twitterfail
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Model example of 1st Amendment suppression by the People of New York City's Michael Bloomberg #OWS #NYPD
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AG Holder lackadaisical on Operation in our Sites domain name seizures & RIAA lobbied free speech suppression @dajaz1
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Monks sue Louisiana for right to sell caskets made from forrest destroyed by Katrina
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Are the abortion ultrasound laws headed for the Supreme Court?
On 05-15 at 21:52PM
My fiance's check is DD into a local credit union. Bank seems to have a pattern of "invisibly holding" charges from the debit card until just HOURS before his DD is processed (and this is after hours, of course). Over th
Have your fiance take the information you've collected and go into the bank...
I am being accused of hitting a 7 yr old child with my car, but I honestly don't think I hit the child. The Child was never knocked down, ran around my car to go back to ball practice, and was walking around with the par
You are in a serious situation. Get a lawyer immediately. Make no statements to ...
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