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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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Judicial procedural appellate activism?
Posted on March 24, 2008Since most people that talk about ?judicial activism? are political hacks seeking the favor of non-lawyers, I don?t take them seriously. In fact, I think they should be disbarred. However, I have attempted to compile two definitions (taken in part...
An Easter Egg in the DTA: Does it Apply to the CAAF?
Posted on March 22, 2008While the lay people have been crowing about the ?suspension? of habeas corpus (which probably never happened), some lawyers have made the argument that 28 USC 2241 (e)(2), does not remove the jurisdiction of the US Court of Appeals for...
CA1: Big case on post-Gall sentencing procedure and substance
Posted on March 21, 2008US v. Martin, No. 06-1983. This case begins with ?This appeal represents our first full-fledged application of the teachings of Gall. At the same time, it also affords us an opportunity to discuss a relatively new phenomenon: the practice indulged...
CA1: there was notice of a deportation hearing
Posted on March 21, 2008Aragón-Muñóz v. Mukasey, No. 06-2776 denies a petition for review of a Guatemalan. After being ordered deported in absentia, he tried to reopen. The First holds that based on the evidence it was reasonable to conclude that he, in fact,...
CA1: warrant application omission okay
Posted on March 21, 2008US v. Belton, No. 07-1190. The defendant argues that the arrest ?warrant application was fatally flawed because it intentionally or recklessly left out critical facts that were needed for a proper understanding of the facts set out in the application...
CA1: Fahrenheit 9/11 didn?t defame injured vet
Posted on March 21, 2008Damon v. Moore, No. 07-1365. I thought this case would be interesting because the Weinsteins and Michael Moore were being sued. (Of course Michale Moore is represented by a big firm.) The plaintiff claims that Fahrenheit 9/11 ?portrayed Damon as...
CA1: Brazilian CAT claim denied
Posted on March 19, 2008De Oliveira v. Mukasey, Nos. 07-1642, 07-1643 denies the CAT petition of two Brazilians who were local politicians. They were threatened, but the IJ said that nobody took ?overt action.?
CA1: statutory construction and "firm offers"
Posted on March 19, 2008Sullivan v. Greenwood Credit, No. 07-2354. This is a ?putative class action challenges the legality, under the Fair Credit Reporting Act ("FCRA"...), 15 U.S.C. § 1681 et seq.? The plaintiffs seek statutory damages for the alleged misuse of credit agency...
CA1: no safety valve for drug mule
Posted on March 19, 2008US v. Ayala-Tapia, No. 06-2781. This is a ?drug courier ? prosecution. The mule claims she didn?t know what was in the packages. She was convicted and challenges on sufficiency grounds. Before affirming, the First dances around a bit, and...
Lineup for Snyder v. LA
Posted on March 19, 2008Even though SCOTUSblog will competently cover Snyder v. LA (holding that a trial judge committed clear error in rejecting a Batson challenge), I want all you people out that troll the masses about judicial activism, and ?liberal? and ?conservative? judges...
CA1: another deemed admission
Posted on March 18, 2008CMI Capital v. Gonzalez-Toro, No. 06-2623. It seems that many oppositions to motions for summary judgment do not specifically counter the statements of facts as required by local rules. This is called the ?anti-ferret? rule. Procedurally, the First points out...
Odds and Ends
Posted on March 18, 2008The other side of qualified immunity. Usually after I read a 1983 case on qualified immunity which ends in a determination that the defendant (usually a cop, sometimes a state official) is entitled to qualified immunity, there is a great...
CA1: experts in warrant applications
Posted on March 18, 2008US v. LaFortune. No. 06-1699 affirms a conviction in a child pr0n case. The main objection raised by the defendant is that in reviewing an application for a search warrant, the magistrate lacked "informed lay opinion, evidencing some kind of...
CA10: Daubert in criminal proceedings
Posted on March 17, 2008White Collar Crime Prof Blog points to US v. Nacchio, No. 07-1311. This is an insider trading case, but it is also a very good one for anyone that had to deal with scientific evidence. Strangely, the Washington Legal Foundation...
CA1: Patry brings the First circuit into Spitzergate
Posted on March 17, 2008Even though I think it is high time we leave Elliot Spitzer alone, William Patry explains that some nude photos can be matter of public concern based on the First Circuit?s decision in Nunez v. Caribbean International News Corp. 235...
Law students and interviewees are not so bad: a reply to HowT
Posted on March 17, 2008Have Opinion Will Travel produces his usual shtick, which is something like this: Look at me I am a judge; I am really smart whereas other people are not (did I mention that I am a judge?); I understand what...
CA1: ?indecent assault and battery on a person fourteen years or older? is a ?crime of violence?
Posted on March 14, 2008Ramirez v. Mukasey, No. 07-1655. In this deportation case, the issue if whether a conviction under Mass. Gen. Laws ch. 265, § 13H for ?indecent assault and battery on a person fourteen years or older? is a ?crime of violence?...
CA1: victims of sex-traffickers got to go back home, because they are not politically oppressed
Posted on March 14, 2008Ndreka v. Mukasey, No. 07-2019 (unpublished). In its haste to send an Alabanian back, the First drops this bombshell: Although Ndreka argues she was subject to persecution based on her political opinion, substantial evidence supports the Board?s determination that Ndreka...
CA1: denial of a continuance not a due process problem
Posted on March 14, 2008Lopez v. Mukasey, No. 07-1515 denies the petitioner of a Peruvian family. While in deportation proceedings, the petitioners tried to appeal a denial of visas and adjust their status. The government opposed any continuance and pointed out that prior visa...
CA1: dismissal for want of prosecution affirmed
Posted on March 14, 2008Gulla v. Dennehy, No. 07-1936 (unpublished). Case was dismissed for want of prosecution after District Court gave a prisoner a few changes to amend his complaint. The plaintiff claims that he was ?incapacitated? during the time period in question, the...
CA1: Indonesian Christian's petition fails
Posted on March 13, 2008Sela v. Mukasey, No. 07-1837 denies a petition for review of an Indonesian Christian. The IJ said the petition was timebarred, but credible, but not corroborated enough. The First says that there wasn?t enough evidence to show that there was...
CA1: getting tripped up on Unitherm
Posted on March 13, 2008Ellrich v. US Bank National Association, No. 07-1115 (unpublished). Despite this case?s lofty caption, it is really an appeal of a jury verdict. But, the plaintiff gets tripped up because ?The short answer is that at trial Ellrich did not...
CA1: Kenyan?s petition fails
Posted on March 13, 2008Karim v. Mukasey, No. 07-1981 (unpublished) denies a petition for review of a Kenyan. The guy was pro se. The guy admitted that he wasn?t a US Citizen, and the defendant didn?t meet his burden of showing that he was...
CA1: disability discrimination case sinks on local rules
Posted on March 12, 2008Rios-Jimenez v. Secretary of Veterans Affairs, No. 06-2582. This is a disability discrimination act case pursuant to the Rehabilitation Act, 29 U.S.C. § 701 et seq. The plaintiff lost on summary judgment, but mainly on things that were deemed to...
CA1: Farmers? due process claims fail
Posted on March 12, 2008Perez-Acevedo v. Rivero-Cubano, No. 06-2633. This is a corporate 1983 action by some Puerto Rican poultry farmer. In Puerto Rico, the commonwealth allowed farmers to join a ?nucleus? which allowed them to use a trademark. Nucleus membership conferred other benefits...
What the First said about Clear Error
Posted on March 12, 2008Another note on DeCaire v. Mukasey, No. 07-1539 (our coverage here). Even criminal law practitioners need to read it, because the First has this very important language regarding the ?clear error? standard: We have great concern over the district court's...
Odds and ends
Posted on March 12, 2008They are odd. They are ends. They are odds and ends. Welcome to the Blogosphere. Appellate Review is a nice blog that talks about circuit splits, stuff that real lawyers care about. What do you get when you pay $4,300?...
CA1: the use of timebarred discrimination and remedies for mixed motive discrimination in the US Marshal?s office
Posted on March 11, 2008DeCaire v. Mukasey, No. 07-1539. I thought this was an immigration case. But it is far more interesting. A deputy US Marshal claims that she was discriminated against on the basis of ?gender and retaliated against her after she filed...
CA1: Defendant wins big double jeopardy case
Posted on March 11, 2008US v. Lara-Ramirez, No. 06-2108. In the underlying trial, a bible was discovered in the jury room, and some indication that a jury was relying on the bible. (I think the District Court judge did a good job of investigating...
CA1: ah, the great pro se lawsuit
Posted on March 11, 2008Swan v. Barbadoro, No. 07-1453. Guy was convicted of some tax stuff. Then he sues the judges and prosecutors under Bivens. Then he sues under RICO. You know where this is going (or went). In the First he moves for...
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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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