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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: sentencing issues for passing forged checks
Posted on April 02, 2008US v. Alfano, No. 07-1624 (unpublished). The defendant ?used the name of a fictitious person to cash one of the counterfeit checks...? as well as ?the account number of Toys R Us and the payor name of Atlantic Coast Contractors,...
CA9: Judicial Immunity for governor?s parole override
Posted on April 02, 2008The 9th Circuit holds today, in Miller v. Davis, that the former government of California enjoys judicial immunity when he reverses a decision of the parole board even if lacks the actual legal power to do that. I am mainly...
Contractor charged under UCMJ
Posted on April 02, 2008UCMJ CAAFlog reports on how charges under the UCMJ have been brought against a civilian Canadian civilian contractor in Iraq.
More free case law.
Posted on April 02, 2008If you happen to be poor, get a load of PreCYDent. Type in search terms or cites and you might get lucky. Want more? Go to www.precydent.com See also Public.Resource.Org and Alt-Law.
Not a 4/1 joke: 5th reverses for improper bolstering
Posted on April 01, 2008DotD reports here. It wasn?t even properly preserved. Why the AUSA would say what he said, nobody knows. The Fifth concludes with: We cannot permit the prosecutor?s remarks to be swept under the rug by the broom of the harmless...
CA1: Cyr dissents in Albanian asylum case
Posted on March 31, 2008Cuku v. Mukasey, No. 07-1273. An IJ found the petitioner not to be credible, relying on inconsistences and problems with chains of custody. The First says that is okay. It also says the conduct of the IJ is okay. Normally...
CA1: bus drivers protected by NLRA
Posted on March 31, 2008Five Star Transportation v. NLRB, No. 07-1316 enforces a decision of the NLRB, which found that Five Star Transportation ?engaged in an unfair labor practice in violation of § 8(a)(1) of the National Labor Relations Act ("Act") when it refused...
More on Ben Kuehne (lawyer indicted for opinion letter)
Posted on March 30, 2008Legal Ethics Forum reports that: Regarding Ben Kuehne? we've heard the extraordinary rumor -- we repeat "rumor" -- reported by the WSJ Law Blog is that DOJ has replaced the prosecutor and is considering dropping the charges. See our earlier...
A prosecutor speaks out
Posted on March 29, 2008What prosecutors are thinking. Western Justice peers into the mind of a prosecutor. Here are his thoughts about our system of justice. Yadda, yadda, yadda. Although they won?t admit it to your face, most prosecutors AND defense counsel are saying...
CA1: class certification reversed for now
Posted on March 28, 2008In Re New Motor Vehicles Canadian Export Antitrust Litigation, Nos. 07-2257, 07-2258 & 07-2259 a class certification, but says that the District Court can try again on a more complete record. It is fairly complicated, and antitrust litigation bores me,...
CA1: 1983 state action failures are not a matter of subject matter jurisdiction
Posted on March 28, 2008Alberto San, Inc. v. Consejo de Titulares, No. 07-1605. While this case involves an office condo, the complaint included 1983 claims as well as claims that various statutes were unconstitutional. The District Court dismissed for lack of ?subject matter jurisdiction...
CA1: what it takes to stop poor people
Posted on March 28, 2008US v. Soares, No. 07-1479. A guy was driving with his headlights on in a high-crime area (i.e. poor). The cops saw ?furtive movements.? A ?pat-frisk? found a gun. The facts get a little silly as a defendant is termed...
CA1: First finds a way to use Snyder to screw up a religious Batson challenge
Posted on March 28, 2008US v. Girouard, 07-1244. We don?t see many ?consumer product tampering in violation of 18 U.S.C. § 1365" convictions. (?Girouard was a nurse with the veterans' administration.... She pricked or cut transdermal patches through their wrapping, thereby removing some of...
CA1: a drug conviction with all the normal trimmings
Posted on March 28, 2008US v. Page, Nos. 06-2006, 06-2007 affirms a conviction for ? possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and conspiracy, id. § 846.? Immigration and Customs Enforcement (ICE) seems to have been running a rather large...
Appellate Review coverage of Jencks Act split
Posted on March 27, 2008We covered United States v. Colón-Díaz, 2008 WL 787389, *22 n. 8 (1st Cir. Mar. 26, 2008) here. Appellate Review provides more here, describing the split between whether ?Government Agents Always Preserve Rough Interview Notes When Those Notes Are Incorporated...
CA1: failure to reopen not abuse of discretion
Posted on March 27, 2008Tandayu v. Gonzales, No. 07-1738. The petitioner in this asylum case is an Indonesian Christian. The petitioner tried to reopen it a couple of times with articles or materials showing conditions in Indonesia. The First says it wasn?t an abuse...
CA1: ADA law is, uh, complex or something
Posted on March 27, 2008Ruiz-Rivera v. Pfizer Pharmaceutic, No. 07-1595. This is a ADA Selya case. Lots of big words. It affirms summary judgment that an employee wasn?t really prevented from performing any major life activities. Specifically, she failed on a ?regarded as? claim...
CA1: stock option period strictly enforced
Posted on March 27, 2008Mariasch v. Gillette Company, 07-1549. An employee got some stock options from his employer. He says he gets to exercise them late. There is a choice of law issue, but the First says that this is really a matter of...
CA1: Puerto Rican insurance liquidation fight ends
Posted on March 27, 2008MRCo, Inc. v. Juarbe-Jimenez , No. 07-1614. The plaintiff sued Banco Popular and the insurance commissioner of Puerto Rico as ?liquidator of the Plan de Salud de la Federación de Maestros de Puerto Rico.? The plaintiff then settled with Banco...
CA1: ERISA civil procedure federalism party !
Posted on March 27, 2008Geiger v. Foley Hoag LLP Retirement Plan, 07-1208. This looks like fun. It involves the interrelations between family law, ERISA, and most of all, civil procedure. Essentially there were divorce proceedings in state court. Then the plaintiff went to federal...
CA1: two drug shipments ? on fake ? turns into sentencing mess
Posted on March 27, 2008US v. Jaca-Nazario, Nos. 05-2114, 06-2157 vacates the sentence of a guy that entered two pleas to difference offenses that were accepted by different judges. It is a Puerto Rican drug smuggling case where the ?drugs? were not really drugs,...
Art at the First Circuit
Posted on March 27, 2008Turns out most people don?t like the First Circuit?s taste. ArtBistro reports A panel of prominent artists, architects, attorneys, and judges, including US Supreme Court Justice Stephen G. Breyer, picked [Ellsworth] Kelly ? an 84-year-old Upstate New York artist whose...
Home-schooling: A simple lie is more true than a complex truth.
Posted on March 26, 2008A lot of the non-lawyers have been crowing about how a ?court ruling? makes it a crime to home-school kids. As much as I don?t like the idea of home-schooling, the people disseminating this propaganda seem to actually fear the...
CA1: even though some in the government might agree with the defendant, the jury can still convict
Posted on March 26, 2008US v. Lachman, Nos. 06-1058, 06-1060, 06-1061 affirms a conviction for violating the Export Administration Act of 1979 ("EAA"). All the defendants were ?convicted by a jury of exporting (and conspiring to export) a control panel for a large hot...
CA1: Jencks and hearsay
Posted on March 26, 2008US v. Colon-Diaz, No. 06-2550 affirms a conviction in a drug case. There are some interesting evidentiary issues But the most interesting issues is a Jencks act violation. The DEA agents destroyed the ?rough? copies of their notes. But, it...
CA1: Falun Gong petition denied
Posted on March 26, 2008Lin v. Mukasey, No. 07-1658 denies a petition for asylum and CAT relief of a Chinese member of Falun Gong. The IJ found him not to be credible. This is really strange, because I thought the Chinese were really giving...
CA1: when intent becomes attempt
Posted on March 26, 2008US v. Piesak, No. 07-2164 affirms a conviction for an attempt to manufacturer ecstasy. The First describes the evidence as such she ?(1) acquired ingredients necessary to manufacture ecstacy; (2) researched, obtained, and actively studied ecstasy recipes; and (3) acquired,...
CA1: PT challenges to Medicare regs need to be properly exhausted
Posted on March 26, 2008Puerto Rican Association of Physical Medicine and Rehabilitation v. US, No. 07-2476 affirms a decision of the District Court, which rejects a challenge to a regulation which indicates that Medicare reimbursement is not available for physical therapy. The relevant regulation...
CA1: guarantors gotta pay
Posted on March 25, 2008Wheeler v. Blumling, No. 07-1992. A loan broker became a guarantor on a loan with a ?breathtaking? interest rate ? over 1000% per annum. The guaranty agreement specified a maximum amount that he would be liable for. The guys that...
CA1: First Circuit really bends to say that tapes ?contain? photos (and some sentencing)
Posted on March 25, 2008US v. Rogers, No. 06-2532. In a child pr0n prosecution, the cops got a warrant for a house, specifying that they were to look for ?photos of [a minor child].? They found a videotape. He was charged in state court,...
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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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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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