U.S. First Circuit

U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog


Court Affirms Convictions with Lay Testimony about Drug Slang "Tweezy"

A federals appeals court affirmed convictions against three defendants based in part on lay witness testimony about the meaning of slang words used in drug sales such as "tweezy."

"Tweezy" means crack cocaine, and "step up a yard" means turning powder into crack, the witness testified in United States of America v. Dunston. The U.S. First Circuit Court of Appeals said Timothy Boyle, a DEA agent who had reviewed hundreds of undercover recordings of crack cocaine deals, was well qualified to testify about the meaning of drug slang.

"Where malefactors try to mask their criminal activities by using codes, a law enforcement officer who is equipped by knowledge, experience, and training to break those codes can help to inform the factfinder's understanding," wrote Judge Bruce M. Selya, who is also known for his particular manner of expression.

"So it is here: the government provided the district court with ample reason to conclude that Boyle was knowledgeable about the idiom of the drug trade and, in particular, the vernacular of this group of miscreants."

What a difference a comma can make. In a recent case out of Maine, a missing comma in the state's overtime law decided a dispute between a dairy company and its delivery drivers, where, literally, for want of a comma the case was lost.

Of course, writers, grammarians, lawyers, and the like (wordsy, rulesy people, all) love to debate the value of commas. And few comma issues are as divisive as the Oxford, or serial, comma. This passion for punctuation has kept books on the bestseller list (remember "Eats, Shoots & Leaves"?), prompted public polling, and inspired endless online think pieces.

Sometimes those battles are fought in courtrooms, as was the case in O'Connor v. Oakhurst Dairy, the Maine overtime dispute decided by the First Circuit yesterday.

Man Who Sold Parts to Iran for WWIII Denied Lighter Sentence

What part of "World War III" did Sihai Cheng not understand?

Cheng, a Chinese national convicted of selling parts to Iran for "World War III," asked a federal appeals court to reduce his sentence. He basically said it was just a sales pitch, apparently forgetting that China sentences people to death just for selling sensitive information.

The U.S. First Circuit Court of Appeals summarily dispatched Cheng's appeal, ruling that the trial judge did not exceed her authority in sentencing him to 108 months in prison. The parties had agreed on a lesser sentence, but the judge saw it differently.

"You're not the first case I've seen like this, and I think there has to be a deterrent message sent out there, particularly if you know you're helping a nuclear weapons program," Chief Judge Patti B. Saris said.

Court Upholds Hospital's Non-Union Hiring

Reversing a decision by the National Labor Relations Board, a federal appeals court has upheld a hospital group's preference for hiring non-union workers at its non-union hospitals.

The First Circuit Court of Appeal said the NLRB did not have substantial evidence for its finding that the hospital group unfairly preferred non-union workers. The court acknowledged that the hospital group also had a policy preferring union workers at its unionized hospital.

The court said the employer's desire to treat its union and nonunion employees and "even-handed" way negated an inference that the policy was motivated by union animus.

New Hampshire law allows, but doesn't require, abortion clinics to create a buffer zone around their facilities, of up to 25 feet. The public, with some exceptions, is excluded from that zone.

Abortion opponents sued to have the law overturned under the Supreme Court's McCullen v. Coakley decision, issued just a few days after the buffer zone law was enacted. Except there's a fatal flaw to that lawsuit, the First Circuit ruled last Wednesday: the law has never been activated or enforced.

Drug-Testing Discrimination Case Revived by First Circuit

Reviving a lawsuit by black police officers who claimed hair testing for drugs discriminated against them, a federal appeals court has ruled that hair testing "plus urinalysis" could be a reliable alternative to hair testing alone.

The First Circuit Court of Appeals reversed and remanded a trial court decision against ten Boston Police Department employees who claimed that the hair test alone was discriminatory. According to the court, hair tests showed that 99 percent of white workers did not use illegal drugs and 98 percent of black employees did not use them.

The court said that amounted to a disparate impact on the black officers, and that a hair test plus urinalysis could have been offered to them instead. The trial court must reconvene for a jury to decide whether "hair testing plus urinalysis" would be more fair to the officers.

"The record contains sufficient evidence from which a reasonable factfinder could conclude that hair testing plus a follow-up series of random urinalysis tests for those few officers who tested positive on the hair test would have been as accurate as the hair test alone at detecting the nonpresence of cocaine metabolites while simultaneously yielding a smaller share of false positives in a manner that would have reduced the disparate impact of the hair test," the court said.

Activist Loses Appeal for Appointed Counsel in Fight Against TSA Body Scanning

It has not easy being Sai. The activist, who goes by a mononym to reject any authority to make him use another name, got rejected by a federal appeals court in his case against the Transportation Security Administration. He wanted the court to appoint a lawyer for him in his fight against body scanning by the TSA.

The First Circuit Court of Appeal had one word for him: "No."

Court Tightens Requirement When Suing for Stock Fraud

Requiring stricter pleading of plaintiffs, a federal appeals court has ruled that complaints for securities fraud must trace stock purchases to specific false or misleading statements.

In the recent case In Re: Ariad Pharmaceuticals, Inc. Securities Litigation, the First Circuit held that plaintiffs cannot satisfy their pleading burden by "general allegations" when their purchases were traceable to fraudulent registrations under Section 11 of the Securities Act. When stock has been issued in multiple offerings, a plaintiff must plead that his or her shares were issued under a specific false or misleading registration statement.

According to the panel, a "general allegation that a plaintiff's shares are traceable to the offering in question is nothing more than a 'formulaic recitation' of that element."

A federal judge in Puerto Rico overreacted when he had court officers forcibly seat an attorney who had objected to an objection, the First Circuit said yesterday. But that overreaction wasn't enough to overturn the drug conviction of Marquez-Perez, the court found.

Rather, it was the performance from that same, forcibly-seated lawyer that may save Marquez-Perez. Since the attorney had failed to review important evidence before trial, Marquez-Perez may have been denied effective counsel, the First Circuit ruled.

Insider Trading Rule: 'Gratitude' Can Be a 'Personal Benefit'

The First Circuit affirmed a pair of consolidated insider trading convictions in which general gratitude for being a tippee could be considered a personal benefit under federal securities laws. The same goes for wine, steak and massage parlors.

If that doesn't worry you, that's probably because you don't golf too much.