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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
Go to Appellate Law and Practice, find other Appellate Law blogs, or browse all law blogs.
CA1: Logan gets to build its taxiway
Posted on July 23, 2008Winthrop, MA v. Federal Aviation Administration, No. 07-1953 rejects a challenge to an order by the FAA letting Logan Airport build a new taxiway. This seems to all come down to a question of whether the FAA properly decided not...
A pure procedural justice practice tip
Posted on July 23, 2008When making a written representation to non-lawyers that you are involved in the ?Pursuit of Justice,? be sure and proofread so that you don?t write that you are in the ?Fursuit of Justice.? Trust me on this one.
One court reverses due to unpreserved prosecutorial misconduct.
Posted on July 22, 2008As I have said a few times, I believe that the First Circuit constantly gives green light to all sorts of prosecutorial misconduct. Whenever a prosecutor reads the words ?harmless error? his natural inclination is to say, ?This means I...
But what a long 9/16ths of a second of sheer terror it was
Posted on July 21, 2008By now, you know that the Third Circuit has put the pasties on the FCC?s fine resulting from the wardrobe malfunction. The ruling is 103 pages and includes a description of all the people that have nothing better to do...
CA1: another ERISA standing case
Posted on July 21, 2008Evans v. Akers, 07-1140 (7/18/08). This is an ERISA case. I will read it in more detail later. But it comes down to this holding: hold that former employees who allege that fiduciary breaches reduced their lump-sum distribution from a...
CA1: First misses an opportunity to take vindictiveness issue seriously
Posted on July 21, 2008US v. Jenkins, No. 07-1814 (unpublished) (7/18/08) affirms a sentence. However, the raises an unpreserved issue of prosecutorial vindictiveness. ?According to Defendant, the government sought to penalize Defendant for refusing to accept a plea offer requiring Defendant to waive his...
This doesn't seem right
Posted on July 20, 2008Let me get this straight. According to this sign, if someone tows my car, I "agree" to a lien.
CA1: another crack appeal waiver
Posted on July 19, 2008US v. Chandler, No. 07-1583 (7/18/08). This is another appeal waiver case. This one is like US v. Borrero-Acevedo, No. 06-2655 (our coverage here). Anyway, the guy signed an appeal waiver at the plea, and he got a guidelines sentence...
CA1: First decides a rule of lenity case for defendant
Posted on July 19, 2008US v. Godin, No. 07-2332 (7/18/08) reverses a conviction under 18 U.S.C. § 1028A(a) which is the identity theft statute. Applying the rule of lenity, the First holds that the government must prove that the defendant knew that the documents...
CA1: no prejudice in unamended NTA
Posted on July 17, 2008Malonda v. Mukasey, No. 07-1799 (7/16/08) (unpublished) denies a petition for review of Indonesian Christians seeking asylum. Most of it involves a credibility claim. There is a due process claim, because she was ?compelled? to be a witness against herself,...
CA1: The trick to avoiding liability is not letting the officers be identified
Posted on July 17, 2008Pineda v. Watts, No. 07-2462 (7/16/08). In an arrest following a shooting some officers that were ?smart enough? (in the words of a former prosecutor I know) to not be identified roughed up the suspect. But, this case comes down...
Programming note
Posted on July 16, 2008Three opinions from our fair city today. I will get to them later. 07-2462 Pineda et al v. Toomey et al (USDC MA 05-10216 Tauro, USDJ) (false arrest/1983) 07-1635 Sompotan et al v. Mukasey (BIA A96264824) (Indonesian asylum) 07-2418 New...
Good luck on the bar exam
Posted on July 16, 2008A couple of years ago, the Happy Feminist wrote: [Regarding the bar exam] ... it's an artificial test that does not measure your worth as a human being or your legal abilities - and everybody knows it. It turns out...
CA1: the twists in an asylum denial and appeal
Posted on July 14, 2008Bakuaya v. Mukasey, Nos. 07-1667, 07-2439. In this immigration denial, the petitioner is from Togo. The petitioner changed her story many times (including once during the trial). Yet, the IJ sided with her, as human rights conditions in Togo were...
CA1: appeal waivers and synthetic marijuana
Posted on July 14, 2008US v. Pratt, No. 06-2287 concludes that an appeal following a guilty plea is barred by an appeal waiver that the defendant signed. Applying US v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001), the First says that there really...
A pet peeve
Posted on July 14, 2008A lot of lawyers are fond of saying that other lawyers are dumb or incompetent. When I do this it is based on the lawyer's written assertions that are at odds with the state of the law when claiming to...
CA1: the difference between ordinary and complete preemption
Posted on July 14, 2008Fayard v. Northeast Vehicle Services, No. 07-2222. This is a dispute between neighbors. The defendant operates a car distribution facility that apparently is quite noisy. The defendants removed to the District Court. The District Court held that removal was proper...
CA1: First undertake Corbonite maneuver
Posted on July 14, 2008Reyelt v. Danzell, No. 07-2603. This is a lawsuit of what amounts to a contract for purchase of a property gone bad. The First has kind words for the District Court, but decides to write about what it views as...
CA1: in new Russia, the government steals from you for apolitical reasons
Posted on July 11, 2008Panchenko v. Mukasey, No. 07-2032 (unpublished). While this is a denial of an asylum petition, the facts are interesting. When the Russians were communist, the petitioner graduated from college and couldn?t find a job. In America, people like that either...
CA1: government gets another chance to put someone in jail
Posted on July 11, 2008US v. Alviles-Sierra, No. 07-2066. During a trial for cocaine, ?Angelico Santiago-Rivera testified that the defendant had been asked by agents ?if he was going to take the blame for it [the cocaine], and he said yes.?? The defendant requested...
CA1: Figidity person not under arrest when in handcuffs
Posted on July 11, 2008US v. Brame, No. 07-1833 (unpublished) affirms a conviction, after uncritically reviewing a lot of cop-speak. The First concludes that a valid Terry stop occurred, and therefore the person was not really in custody when he started acting ?figidity? and...
CA1: notice probably received
Posted on July 10, 2008Shah v. Mukasey, No. 07-2001 denies a petition for review in an asylum case brought by a native of Pakistan, but a citizen of Pakistan. A deportation order was issued in absentia. He claims he wasn?t actually informed. The First...
CA1: fishing disaster ends in insurance disaster
Posted on July 10, 2008AGA Fishing Group v. Brown & Brown, Inc., No. 07-2408. This is a post-judgment insurance-coverage dispute which ends with the choice words ?AGA presents no facts evincing a duty on Defendants? part to ensure that AGA was adequately covered, we...
CA1: unpreserved Kimbrough errors are reviewed for plain error
Posted on July 10, 2008US v. Matos, No. 07-1459 holds that there was no plain error in failing to consider the unreasonableness of a guidelines crack sentence. However, post-Kimbrough v. United States, 128 S. Ct. 558 (2007), the First says that the defendant must...
CA1: Appeal waivers reviewed under plain error standard
Posted on July 10, 2008US v. Borrero-Acevedo, No. 06-2655. The First now says that plain error review applies to unpreserved claims of violations of Fed. R. Crim. P. 11(b)(1)(N) (waiving right to appeal). So, now the defendant has to show ?a reasonable probability that...
CA1: Postal age discrimination coming back
Posted on July 10, 2008Gomez-Perez v. Potter, No. 06-1614. As you know, the First first heard this case in Gómez-Pérez v. Potter, 476 F.3d 54, 56-57 (1st Cir. 2007) and we covered it here. Then the Supreme Court reversed, and held that 29 U.S.C....
CA1: Prosecutorial misconduct never a problem
Posted on July 10, 2008US v. Vazquez-Botet, Nos. 07-1205, 07-1398. This is a pretty wild political corruption case. But the issues a pretty distinct. A denial of a motion to recuse is okay based on the facts which involve the judge?s wife representing a...
CA1: CERCLA settlement fun
Posted on July 09, 2008City of Bangor v. Citizens Communications Company, Nos. 07-2193, 07-2255, 07-2759, 07-2777. This is a CERCLA case under 42 U.S.C. §§ 9607 and 9613. The District Court approved a consent decree amongst the state and private parties. The appellants are...
CA1: First explores Gall in a GVR
Posted on July 09, 2008US v. Taylor, No. 06-2216. ... Taylor was sentenced to one year in a halfway house, five years of probation, and a $10,000 fine, for aiding and assisting in the preparation of false tax returns, in violation of 26 U.S.C....
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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
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UES NYC
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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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