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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: harmless Kimbrough error
Posted on August 29, 2008US v. Ayala, No. 07-1570 (8/28/08) (unpublished). There is something disturbing about this opinion. I don?t know what it is. It might be because it is longer than most unpublished opinions. Perhaps there is some big issue that the First...
Comcast places limits on bandwith
Posted on August 29, 2008So, rather than being squirley about how much of the internet you can use, they say that you can only use 250gb per month. Tnx HackADay. Comment: I think this is good. Comcast?s limits are adequate for home use (and...
CA1: flip-flopping District Court judge leads to reversal
Posted on August 28, 2008US v. Mala, Nos. 06-1887, 06-1888. Tom Lincoln, a friend of the blog wins one. The big issue is whether a confession should have been admitted. The District Court seems to have had some doubts about the quality of the...
CA1: equitable shares of the profits in a Lanham Act case
Posted on August 28, 2008Venture Tape Corp. v. McGills Glass, No. 07-1186. It?s tape v. glass. Tape won in a trademark infringement suit, after both parties moved for summary judgment. The underlying issue was ?likelihood of confusion? (as you can see, I don?t really...
CA1: affirmative defenses to sexual harassment discussed
Posted on August 28, 2008Chaloult v. Interstate Brands, No. 07-2694. This case involves the affirmative defense that an putatively vicariously liable employer may assert in a sexual harassment case under Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus...
CA1: preponderance of evidence constitutionally okay in attorney discipline
Posted on August 28, 2008In Re: Malcolm J. Barach, No. 06-8033 suspends a lawyer for two years based on the Massachusetts? SJC?s suspension for failing to keep adequate records regarding client funds. I guess the First Circuit sets out the framework litigating these issues.....
CA1: First usurps foreign-policy making role to help government
Posted on August 28, 2008Datau v. Mukasey, No. 07-1996 denies a petition of an Indonesia Christian. She looks Chinese. The IJ said some weird things about how he had "concerns" about the truthfulness of the story, but didn't find it credible. What does that...
CA1: health fraud losses and sentencing
Posted on August 28, 2008US v. Yelaun, No. 07-1651 (8/27/08). This is a health fraud case. The guy was convicted of getting paid for tests not done. There is a variance issue. But, the First says ?gotcha? the indictment was sort of vague (as...
CA1: drugs, guns, and details
Posted on August 28, 2008US v. Sanchez-Badillo, Nos. 05-1800, 05-2045 and 05-2047 (8/27/08) affirms a drug conspiracy case. The big issue is whether there were multiple small conspiracies or one big conspiracy. The first gets to play the ?totality of the evidence? and affirms...
CA1: agreements to draft an agreement enforceable and good faith indemnification
Posted on August 28, 2008Fidelity & Guaranty v. Star Equipment Corp., No. 07-1999 (8/27/08). This is a contract dispute. The parties used the District Court?s ADR program, and a memorandum was produced. But, the parties backed away from it. The District Court decided that...
Your kid is stupid
Posted on August 28, 2008Any partner or associate that claims to have a gifted kid is, statistically speaking, a liar. Therefore, from this point on, I will no longer trust anyone that claims to have a gifted kid.
Support of the notion that the US is not ?prison nation.?
Posted on August 27, 2008Just about every year, someone comes out with a survey which says that the US is imprisoning more people than other countries. There are three reactions to this: This is bad. We are an unenlightened society that likes to put...
Odds and ends
Posted on August 27, 2008Overheard in New York has a series of quotes from people associate with known arrestees. For example, a non-law-student was heard to say ?You've never been arrested? I have never met anyone that has not been arrested!? Certainly not law...
CA1: Petition for review of Colombian asylum-seeker granted
Posted on August 25, 2008Bonilla v. Mukasey, No. 07-1813. The petitioner is a Colombian. FARC was giving him a hard time. So he moved to Venezuela, where he got a ?permanent resident? stamp. Then he went back to Columbia. The IJ concluded that he...
CA1: Copt not that oppressed
Posted on August 25, 2008Abdelmalek v. Mukasey, No. 07-2819 denies a petition for review of an asylum-seeking Egyptian Coptic Christian. He is a doctor, whose wife owned a building that collapsed killing a lot of Muslims. The First denies the petition for review. However,...
CA1: appellate waiver valid
Posted on August 25, 2008USA v. Edelen, 07-1189. This case comes down to whether there was a valid appeal waiver. He claims that ?his waiver of appellate rights was involuntary and unknowing because he entered into the plea agreement unaware of the potential six-level...
Some Firefox research tips
Posted on August 25, 2008TaxProfBog points to the Res Ipsa Blog which provides a very good post cryptically entitled ?Top Twenty Firefox Add-ons that Make Firefox the Researcher?s Browser of Choice.? And, if you don?t know what a FireFox Add-on is, or Firefox is,...
Necessary cultural literacy
Posted on August 24, 2008One of the ways I was able to obtain my position is due to my massive amount of social skills. See, I have a assloads of the kind of cultural literacy that clients and employers like. One wiff of my...
CA1: extensive discussion of RICO and structural characteristics of constructive amendment
Posted on August 24, 2008US v. Brandao, No. 07-1215 (8/21/08). This case has the phrase ?acknowledging the able advocacy by defense counsel.? We all know what this means. The client is going down. To jail. Well, he was poor, and there was a split...
CA1: drug conspiracy colloquy fun
Posted on August 22, 2008US v. Pimentel, No. 07-1512 (8/21/08)holds on plain error review that a plea colloquy was okay. At the change of plea hearing, ?The district court d8etermined that Pimentel's claims of exculpatory evidence lacked credibility because he had previously admitted to...
CA1: is it a warranty provision and is it breached? (and a Bottomry book)
Posted on August 22, 2008ING Insurance SA v. Pagan-Sanchez, No. 07-1709 (8/21/08). A guy gets his boat insured. He doesn?t seem to take care of it too well, and they don?t put fire extinguishers where they should. It gets wrecked. His insurers seek a...
CA1: proving propr convictions with computerized docket entries
Posted on August 22, 2008US v. McKenzie, No. 07-1834 (8/21/08) holds that it was okay to use computerized docket (but attested an authenticated) entries, which had the effect of rendering the defendant ineligible for safety-valve relief under 18 U.S.C. § 3553(f). It then goes...
CA1: who determines whether a termination is for cause (and defamation)
Posted on August 22, 2008Noonan v. Staples, Inc., No. 07-2159 (8/21/08) affirms a grant of summary judgment to Staples. Noonan was fired. Staples says he was fired ?for cause? and therefore it doesn?t have to treat him like a man: he can?t exercise his...
CA1: abuse of process and malicious prosecution claims sort of discussed
Posted on August 22, 2008Gonzalez-Rucci v. INS, No. 07-1198 (8/21/08). Oh god this case is a mess. We got an immigration lawyer. She gets hit upon by an INS Officer, Andrés Núñez. She rejects the hitting upon. Suddenly, the INS started abusing her (e.g...
Progamming note
Posted on August 21, 2008Lots of cases. Should be able to get to them today or tomorrow. 07-2159 Noonan v. Staples (USDC MA 06-10716 Lasker, USDJ) 07-1709 LLoyd's of London et al v. Pagan-Sanchez et al (USDC PR 04-01023 Delgado-Colon, USDJ) 07-1293 USA v....
CAAFlog discussion on IAC, appellate practice, and cert. grants
Posted on August 20, 2008Amongst those that represent soldiers that lacked the social skills not the be court martialed, there is an ongoing discussion of the question of whether a refusal by defense counsel to file a cert. petition constitutes ineffective assistance. Now, in...
CA1: race-discrimination case non-starter
Posted on August 20, 2008Prescott v. Higgins, No. 07-2809. This is a race discrimination case. The disparate treatment theory ends with the fact that he couldn?t show that he was qualified for the position he sought. The disparate treatment side ends when he fails...
CA1: First steps in to help Fedex when Fedex wrongly treats employee like poor drug defendant
Posted on August 20, 2008Soto-Lebron v. Federal Express, Nos. 06-2501, 06-2519. A guy was fired by FEDEX. He claims Fedex did slandered and libeled him. He gets a jury verdict of $7 million. The District Court saves Fedex a bit, and then the First...
CA1: pro-Western Algerian has to go back
Posted on August 19, 2008Limani v. Mukasey, No. 07-2472 denies a petition for review of an Algerian with a late-filed petition. These people seem to be fairly educated and avowedly ?pro-American.? Some Muslims don?t like this. However, everyone seems to think that the general...
CA1: Selya lectures on how to write clearly
Posted on August 15, 2008Chhay v. Mukasey, No. 07-2202 denies the petition for review of an late-filed asylum petition of a Cambodian national. Most of this comes down to credibility calls. What is interesting is that the Selya tenders an extremely ironic admonishing of...
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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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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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