U.S. First Circuit: June 2009 Archives
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June 2009 Archives

Zheng v. Holder, No. 08-2041

Petition for a review of an order affirming both an order of removal and the concomitant denial of a cross-application for asylum, withholding of removal, and protection under the Convention Against Torture is denied where plaintiff failed to prove that she had a well-founded fear of future persecution, and the Board of Immigration Appeals' decision to deny the application for asylum was supported by substantial evidence.    

Read Zheng v. Holder, No. 08-2041

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals.
Filed on JUNE 30, 2009

Judges
Before Torruella, Selya and Tashima, Circuit Judges.
Opinion by Selya, Circuit Judge.

Counsel
For Petitioner: Stephanie F. Dyson and Dyson Law, P.C.
For Respondent: Michael F. Hertz, Acting Assistant Attorney General, Terri J. Scadron, and Siu P. Wong.

US v. Sanchez-Ramirez, No. 08-1116

Conviction and sentence for firearms possession and other crimes is affirmed where: 1) the district court acted within its discretion in denying defendant's third motion for a competency hearing based on the record evidence of his behavior; and 2) the court did not err in concluding that defendant's three prior third-degree burglary convictions in Florida were violent felonies within the meaning of the Armed Career Criminal Act and sentencing him accordingly as the convictions satisfied the elements of the Act's residual clause. 

Read US v. Sanchez-Ramirez, No. 08-1116

Appellate Information
Appeal from the United States District Court for the District of Maine.
Filed on JUNE 30, 2009

Judges
Before Lynch, Chief Judge, Farris, and Howard, Circuit Judges.
Opinion by Howard, Circuit Judge.

Counsel
For Appellant: Michael Tumposky.
For Appellee: Margaret D. McGaughey, United States Attorney.

Garcia-Rubiera v. Calderon, No. 07-2409

In an action challenging amendments to Puerto Rico's Compulsory Motor Vehicle Liability Insurance Act, district court judgment is affirmed in part, reversed in part and remanded where: 1) the court erred in dismissing plaintiff's takings clause claim, as their takings claim for declaratory and injunctive relief is ripe despite the failure to utilize Procedure No. 96 to pursue their administrative remedy; 2) although plaintiffs have a sufficient property interest in the duplicate premiums for purposes of due process, further proceedings are necessary to determine whether the transfers to the Secretary of Treasury constitutes a sufficient deprivation of that property interest to require notice under the Due Process Clause; 3) the court properly dismissed plaintiff's equal protection claim as neither law is directed to a protected class, and the Commonwealth's action is rational and serves the legitimate end of balancing the budget; 4) the court properly granted qualified immunity to defendants; and 5) the court erred in denying class certification as plaintiffs satisfied all the requirements necessary to certify a class. 

Read Garcia-Rubiera v. Calderon, No. 07-2409

Appellate Information
Appeal from the United States District Court for the District of Puerto Rico.
Filed on JUNE 30, 2009

Judges
Before Torruella, Howard, Circuit Judges, and DiClerico, District Judge.
Opinion by Torruella, Circuit Judge.

Counsel
For Appellant: Antonio J. Amadeo-Murga.
For Appellee: Irene S. Soroeta-Kodesh, Assistant Solicitor General.

Foxworth v. St. Amand, No. 08-1751

District court's grant of habeas relief is reversed in part, jurisdiction is retained, and question of state law is certified to the Massachusetts Supreme Judicial Court where: 1) the witness's eyewitness testimony together with the other evidence of record could reasonably comprise a constitutionally adequate foundation for defendant's ensuing conviction; and 2) the question of whether allowing a witness's redacted statement into evidence violated plaintiff's Sixth Amendment confrontation rights depends on whether the petitioner's conviction became final in 1996 or 2002, and is certified to the state supreme court to decide. 

Read Foxworth v. St. Amand, No. 08-1751

Appellate Information
APPEAL from a judgment of the United States District Court for the District of Massachusetts.  
Decided: June 26, 2009

Judges
Before Lynch, Chief Judge, Selya and Siler, Circuit Judges.
Opinion by Selya, Circuit Judge.

Counsel
For Appellant: Susanne G. Reardon, Assistant Attorney General
For Apellee: John M. Thompson

Broderick v. Evans, No. 08-1692

In an employment termination action, district court judgment is affirmed where: 1) the evidence was sufficient for a jury to conclude that protected conduct played enough of a role in plaintiff's discharge to support the verdict that defendant was substantially motivated by an aim to retaliate; 2) the court did not abuse its discretion in failing to grant remittitur as substantial evidence allowed the jury to conclude that plaintiff likely could not have found a job earning substantial income; and 3) the court did not err in refusing to submit the question of punitive damages to the jury as there was no direct evidence that defendant acted in whole or in part to retaliate for the law suit. 

Read Broderick v. Evans, No. 08-1692

Appellate Information
APPEAL from a judgment of the United States District Court for the District of Massachusetts.  
Decided: June 26, 2009

Judges
Before Boudin, Tashima, and Howard, Circuit Judges.
Opinion by Boudin, Circuit Judge .

Counsel
For Plaintiff: Michael W. Reilly
For Defendant: Michael W. Reilly

Braunstein v. McCabe, No. 08-1690

In an action related to bankruptcy proceedings, district court judgment is affirmed where: 1) the court properly denied plaintiff's jury trial demand in the turnover action as no Seventh Amendment right to trial by jury attaches to the statutory turnover action authorized by 11 U.S.C. sec. 542; 2) the court properly granted attorney Ziady's motion to dismiss the defendant's fourth-party complaint for negligent misrepresentation as attorney Ziady owed no legal duty to defendant; and 3) the court did not abuse its discretion in denying defendant's motion to amend the fourth-party complaint, as the record shows that the defendant's proposed amendment would have been futile. District court judgment is reversed where the court erred in its turnover order for the insurance proceeds as defendant's expenditures were not made in the ordinary course of business. 

Read Braunstein v. McCabe, No. 08-1690

Appellate Information
APPEAL from a judgment of the United States District Court for the District of Massachusetts.  
Decided: June 26, 2009

Judges
Before Lynch, Chief Judge, Torruella and Lipez, Circuit Judges. 
Opinion by Lynch, Chief Judge.

Counsel
For Appellant: Joseph H. Reinhardt
For Appellee:  Mark W. Corner

District court judgment against defendant for overdue demurrage owed to plaintiff is reversed where: 1) Puerto Rico Commerce Code Article 947's 180-day limitations period applies to plaintiff's claim for overdue demurrage charges on international shipments to Puerto Rico; and 2) the court did not err in failing to apply the laches presumption, as the parties offered scant facts relevant to such an inquiry and the parties consented to judgment based on the stipulation. 

Read TAG/ICIB Services, Inc. v. Sedeco Servicio de Descuento en Compras, No. 08-1625

Appellate Information
APPEAL from a judgment of the United States District Court for the District of Puerto Rico.  
Decided: June 26, 2009

Judges
Before Torruella, Selya, and Leval, Circuit Judges
Opinion by Torruella, Circuit Judge.

Counsel
For Appellant: Paul E. Calvesbert.
For Appellee: Luis R. Rivera-González.

US v. Stepanian, No. 08-1053

Sentence for conspiracy to commit access device fraud and aggravated identity theft is affirmed where: 1) the district court's properly applied the six-level multiple victim enhancement for more than 250 victims as the bank account holders who were reimbursed for their losses were still victims; 2) the court understood its discretion to depart from the sentencing guidelines, and imposed a sentence with that understanding in mind; and 3) the court did not err in imposing a mandatory two-year consecutive sentence for aggravated identity theft.    

Read US v. Stepanian, No. 08-1053

Appellate Information
APPEAL from a judgment of the United States District Court for the District of Rhode Island. 
Decided: June 26, 2009

Judges
Before Lipez, Hansen, Howard, Circuit Judges
Opinion by Lipez, Circuit Judge.

Counsel
For Appellant: Barry E. Shulman
For Appellee: Donald C. Lockhart, Assistant United States Attorney

US v. Ter-Esayan, No. 07-2419

Appeal from a conviction for conspiracy to commit access device fraud and aggravated identity theft is dismissed where: 1) defendant validly waived his right to appeal the guideline sentence imposed by the district court in the plea agreement; and 2) enforcing the waiver would not work a miscarriage of justice in light of the First Circuit's subsequent decision in US v. Stepanian. 

Read US v. Ter-Esayan, No. 07-2419


Appellate Information
APPEAL from a judgment of the United States District Court for the District of Rhode Island. 
Decided: June 26, 2009

Judges
Before Toruella, Baldock, and Lipez, Circuit Judges.
Opinion by Lipez, Circuit Judge.

Counsel
For Appellant: Eugene Patrick Harris

For Appellee: Donald C. Lockhart, Assistant United States Attorney

US v. Bristol-Martir, No. 06-2722

Conviction for conspiracy to distribute narcotics is vacated and remanded where the district court's handling of an errant juror's misconduct constituted an abuse of discretion, as it failed to question all jury members regarding their ability to remain impartial in light of the misconduct and thus compromised the defendants' right to have a trial by an unbiased jury. Defendant Santiago's conviction is affirmed where there is sufficient evidence for a jury to infer his guilt beyond a reasonable doubt, and defendants Santiago and Bristol's rights under the Speedy Trial Act were not violated where the court provided compelling reasons for why it had to interrupt and delay the trial. 

Read US v. Bristol-Martir, No. 06-2722

Appellate Information
APPEAL from a judgment of the United States District Court for the District of Puerto Rico. 
Decided: June 26, 2009

Judges
Before Torruella, Howard, Circuit Judges, and DiClerico, District Judge.
Opinion by Torruella, Circuit Judge.
Dissent by Howard, Circuit Judge.

Counsel
For Appellee: Germán A. Rieckehoff, Assistant United States Attorney.
For Appellants: Lorenzo J. Palomares, Lydia Lizarribar-Masini, Jorge Luis Armenteros-Chervoni, Víctor González-Bothwell

US v. Croto, No. 08-1856

Conviction for firearms possession is affirmed where the court properly denied defendant's motion to suppress evidence obtained pursuant to a search warrant as the affidavit provided sufficient probable cause to support issuance of the warrant. 

Read US v. Croto, No. 08-1856

Appellate Information
Appeal from the United States District Court for the District of Maine
Filed: June 24, 2009

Judges
Before HOWARD, SELYA, and HANSEN, Circuit Judges.
Opinion by HANSEN, Circuit Judge.

Counsel
For Plaintiff: Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby, United States Attorney

For Defendant: Robert J. Ruffner

US v. Gonzales, No. 07-1541

Conviction for drug crimes is affirmed where: 1) the court did not err in its jury instructions on joining the conspiracy and criminal intent; and 2) the court did not err in its jury instructions on constructive possession, the instruction on Pinkerton liability for the criminal conduct of co-conspirators, and aiding and abetting liability. 

Read US v. Gonzales, No. 07-1541

Appellate Information
Appeal from the United States District Court for the District of Rhode Island
Filed: June 24, 2009

Judges
Before LYNCH, Chief Judge, SELYA and LIPEZ, Circuit Judges.
Opinion by LIPEZ, Circuit Judge.

Counsel
For Plaintiff: Robert Clark Corrente, United States Attorney.

For Defendant: Gordon R. Blakeney, Jr.

Rodriguez v. Suzuki Motor Corp. , No. 07-2662

In a diversity action alleging manufacturing defect, district court's grant of summary judgment for defendant is reversed where: 1) the court erred in holding plaintiff's claims was time-barred, as plaintiff effectively tolled the statute of limitations in regards to his later-filed actions against defendant by timely bringing before the court an identical cause of action against parties solidarily liable with defendant; and 2) the instant action was filed within the limitations period.

Read Rodriguez v. Suzuki Motor Corp. , No. 07-2662.

Appellate Information

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO, Hon. Aida M. Delgado-Colón, U.S. District Judge.
Decided June 22, 2009

Judges
Before Torruella, Lipez, and Howard, Circuit Judges.
Opinion by TORRUELLA, Circuit Judge

Counsel

Peter John Porrata, with whom Law Offices of Peter John Porrata, was on brief for appellant.

Antonio Gnocchi-Franco, with whom Gnocchi Franco Law Offices, Larry M. Roth, and Law Office of Larry M. Roth, P.A., were on brief for appellee.

US v. Gonzalez-Melendez, No. 08-1497

Defendant's carjacking conviction is vacated where: 1) the District Court did not comply with its obligation to independently review the government's compliance with the Jencks Act; and 2) the record did not reflect that the District Court made any response to a jury note requesting copies of certain documents.

Read US v. Gonzalez-Melendez, No. 08-1497.

Appellate Information

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO, Hon. José Antonio Fusté, U.S. District Judge.
Filed June 19, 2009

Judges

Before Lipez, Hansen, and Howard, Circuit Judges.
Opinion by PER CURIAM.

Counsel

Rafael F. Castro Lang for appellant.

German A. Rieckehoff, Assistant United States Attorney, with whom Rosa E. Rodriguez Velez, United States Attorney and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Waldron v. George Weston Bakeries Inc., No. 08-2554

In an action challenging the termination of Plaintiff bakery distributors' routes, the District Court's grant of a preliminary injunction is affirmed, where a voicemail "threat" by Plaintiffs' counsel to inform authorities about Defendants' treatment of its route-holders as employees did not constitute criminal extortion and thus did not violate the parties' agreement.

Read Waldron v. George Weston Bakeries Inc., No. 08-2554.

Appellate Information

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE, Hon. George Z. Singal, U.S. District Judge.
Filed June 19, 2009

Judges

Before Howard, Selya and Ebel, Circuit Judges.
Opinion by SELYA, Circuit Judge.

Counsel

Catherine R. Connors, with whom James R. Erwin, Katharine I. Rand, and Pierce Atwood LLP were on brief, for appellants.

Patrick J. Mellor, with whom Strout & Payson, P.A. was on brief, for appellees.

Sanchez v. Esso Std. Oil Co., No. 09-1211

In an action under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k, for environmental damage by Defendants' oil operations, a preliminary injunction in favor of Plaintiffs is vacated, where the District Court impermissibly prejudged the merits of the case at the preliminary injunction stage and, having reached a conclusion as to liability, determined it was unnecessary to do the full preliminary injunction analysis.

Read Sanchez v. Esso Std. Oil Co., No. 09-1211.

Appellate Information

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO, Hon. José A. Fusté, U.S. District Judge.
Filed June 19, 2009

Judges

Before Lipez, Hansen, and Howard, Circuit Judges.
Opinion by LIPEZ, Circuit Judge.

Counsel

Tynan Buthod, with whom Scott Janoe, Karlene Poll, Baker Botts LLP, Carla Garcia-Benitez, and O'Neill & Borges were on brief, for appellant.

Orlando Cabrera-Rodriguez for appellees. 

Caldero-Guzman v. Holder, No. 08-2325

Petitioner's petition for review of the BIA's denial of his motion to reopen his deportation proceedings after an in absentia deportation order was entered against him is denied where: 1) the Court of Appeals lacked jurisdiction to review the BIA's refusal to reopen a deportation order sua sponte; and 2) Petitioner had notice and an opportunity to attend the prior hearing.

Read Caldero-Guzman v. Holder, No. 08-2325.

Appellate Information

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Filed June 19, 2009

Judges

Before Howard, Selya and Ebel, Circuit Judges.
Opinion by HOWARD, Circuit Judge.


Counsel

Robert M. Warren on brief for petitioner.

Michael F. Hertz, Acting Assistant Attorney General, Civil Division, Anthony Wray Norwood, Senior Litigation Counsel, Office of Immigration Litigation and Terri J. Scadron, Assistant Director, United States Department of Justice, Office of Immigration Litigation, on brief for respondent.

US v. Flores-de-Jesus, No. 06-2670

Defendants' drug convictions are affirmed, where the government improperly used a law enforcement officer as the first witness in a multi-defendant drug prosecution to provide an "overview" of the prosecution's case, but it was highly probable that the testimony did not influence the verdict.

Read US v. Flores-de-Jesus, No. 06-2670.

Appellate Information:

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Jay A. García-Gregory, U.S. District Judge
Decided: June 18, 2009

Judges:

Before Torruella and Lipez, Circuit Judges, and DiClerico, of the District of New Hampshire, sitting by designation.

Opinion by Lipez, Circuit Judge.

Counsel:

Edward J. O'Brien for appellant Flores-de-Jesús.

Luis R. Rivera González for appellant Feliciano-Rodríguez.

Irma R. Valldejuli for appellant Sabino-Morales.

Vernon B. Miles, Assistant United States Attorney, with whom Rosa E. Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and German A. Rieckehoff, Assistant United States Attorney, were on brief, for appellee.

US v. Correy, No. 06-2029

Defendants' drug conspiracy sentences are vacated, where the Court of Appeals in a prior opinion instructed the District Court not to defer to the jury on credibility issues with respect to the drug quantity at issue for sentencing purposes, but the District Court nonetheless did so.

Read US v. Correy, No. 06-2029.

Appellate Information:

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Héctor M. Laffitte, U.S. District Judge.
Decided: June 18, 2009

Judges:

Before Torruella, Lipez, and Howard, Circuit Judges.
Opinion by Torruella.

Counsel:

Stephen Neyman, for appellant John Correy.

Linda George, for appellant Raymond Nicolai-Cabassa.

Edward J. Juel, with whom Rodney S. Dowell and Berman & Dowell, were on brief for appellant Ramón Flores-Plaza.

Luis M. Cháves-Ghigliotty, for appellant Angel Casas.

Terrance J. McCarthy, for appellant José Bonilla-Lugo.

Mauricio Hernández-Arroyo, for appellant Angel Luis Pizarro-Morales.

Germán A. Rieckehoff, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.

LaSalle-Concepcion v. Toledo-Davila, No. 08-2048

In a 42 U.S.C. section 1983 action claiming wrongful discharge based on Plaintiff police officers' injuries suffered on duty, the dismissal of the complaint is affirmed, where Plaintiffs had no constitutionally protected property interest in reinstatement to their positions.

Read LaSalle-Concepcion v. Toledo-Davila, No. 08-2048.

Appellate Information:

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge.
Decided: June 18, 2009

Judges:

Before Lynch, Chief Judge, Close and Boudin, Circuit Judges. Farris of the Ninth Circuit, sitting by designation.
Opinion by PER CURIAM.

Counsel:

Heriberto Güivas-Lorenzo and Güivas & Quiñones Law Offices, PSC on brief for appellants.

Irene S. Soroeta-Kodesh, Solicitor General, Ileana Oliver Falero, Acting Solicitor General, and Susana I. Peñagarícano-Brown on brief for appellees.