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

Simmons v. Galvin, No. 08-1569

In a dispute involving the disenfranchisement of incarcerated felons and the Voting Rights Act, district court judgment is reversed in part and affirmed in part where: 1) plaintiffs' challenge to the statute should be dismissed as plaintiffs failed to state a claim under Voting Rights Act sec. 2, and it is clear from the language, history, and context of the Act that Congress never intended sec. 2 to prohibit the states from disenfranchising currently incarcerated felons; and 2) the court properly granted summary judgment on plaintiff's Ex Post Facto claim as the disputed state statute is a civil regulatory scheme.    

Read Simmons v. Galvin, No. 08-1569

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided: July 31, 2009

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

Counsel
For Appellant: Kenneth W. Salinger, Assistant Attorney General.

For Appellee: Christopher P. Silva.

Banturino v. Holder, No. 08-1979

Petition for review of an order denying relief from removal is denied where the agency did not err in its finding regarding the absence of past persecution, and there is no evidence whatsoever that plaintiff would be singled out for future persecution if he returns to his home country.    

Read Banturino v. Holder, No. 08-1979

Appellate Information
ON PETITION FOR REVIEW OF ORDERS AND DECISIONS OF THE BOARD OF IMMIGRATION APPEALS
Decided: July 31, 2009

Judges
Before Lynch, Chief Judge, Torruella and Howard, Circuit Judges.
Per Curium Opinion

Counsel
For Petitioner:  William A. Hahn and Hahn & Matkov

For Respondent: Surell Brady, Michael F. Hertz, and Anthony N. Norwood.

Rivera v. Centro Médico de Turabo, Inc., No. 07-2657

In a medical malpractice action, district court judgment is affirmed where the forum selection clause contained in two preoperative consent forms signed by plaintiff was mandatory and thus the Commonwealth Court of First Instance was the exclusive venue for any claims against the hospital. The nature of the instant action does not preclude enforcement of the forum selection clause, nor is the clause invalid for fraud, overreaching, or violating public policy.    

Read Rivera v. Centro Médico de Turabo, Inc., No. 07-2657

Appellate Information
Appeal from the United States District Court for the District of Puerto Rico.
Decided: July 31, 2009

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

Counsel
For Appellant: Seth A. Erbe.

For Appellee: Heidi Rodriguez.

US v. Ayala-Garcia, No. 07-2129

Conviction for drug and firearms crimes is vacated where: 1) the evidence was sufficient for a rational jury to find beyond a reasonable doubt that one defendant was guilty of knowing possession of a firearm with an obliterated serial number; 2) the evidence was sufficient to support another defendant's convictions for drug crimes and possession of a firearm in furtherance of a drug trafficking crime, but was insufficient to prove the scienter requirement of his conviction for possession of a firearm in furtherance of a drug trafficking crime; and 3) the prosecutor's challenged statements constituted misconduct, and the improper comments so poisoned the well that the trial's outcome was likely affected and a new trial is warranted on the convicted offenses.    

Read US v. Ayala-Garcia, No. 07-2129

Appellate Information
Appeal from the United States District Court for the District of Puerto Rico.
Filed July 24, 2009

Judges
Before Boudin, Hansen, and Lipez, Circuit Judges. 
Opinion by Lipez, Circuit Judge.

Counsel
For Appellant: Robert Millán and Jorge E. Rivera-Ortíz.
For Appellee: George A. Massucco La Taif.

Tasya v. Holder, No. 08-1586

Petition for review of an order denying asylum, withholding of removal, and protection under the Convention Against Torture is denied where the Board of Immigration Appeal's brief treatment of the petitioners' claims of past persecution was adequate, and the Board was not compelled to find that the petitioners' claimed fear of future persecution was well-founded given given the lack of past persecution, the continued uneventful presence in Indonesia of close family members, and the country conditions evidence.    

Read Tasya v. Holder, No. 08-1586

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals.
Filed July 23, 2009

Judges
Before Lipez and Howard, Circuit Judges, and Woodcock, District Judge.
Opinion by Howard, Circuit Judge.

Counsel
For Petitioners: William A. Hahn and Hahn & Matkov.
For Respondent:  Michael F. Hertz, Cindy S. Ferrier and Sunah Lee, United States Department of Justice.

Gonzalez-Droz v. Gonzalez-Colon, No. 08-1437

District court judgment denying plaintiff's request for preliminary injunctive relief is affirmed where: 1) plaintiff's appeal from the  court's denial of the first request for a preliminary injunction is moot as there is no live controversy to adjudicate with respect to the first request; 2) plaintiff failed to make the requisite showing of irreparable injury in his second motion for injunctive relief, as he did not demonstrate the prospect of future harm or that the suspension of his license inflicted a serious continuing reputational injury.    

Read Gonzalez-Droz v. Gonzalez-Colon, No. 08-1437

Appellate Information
Appeal from the United States District Court for the District of Puerto Rico.
Filed July 23, 2009

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

Counsel
For Appellant: Roberto Ariel Fernández.
For Appellee: Leticia Casalduc-Rabell, Solicitor General of the Commonwealth of Puerto Rico.

US v. Wallace, No. 07-1884

Sentence for armed robbery and other crimes is affirmed where: 1) the district court properly applied the mandate rule and refused to consider defendant's objection to sentencing enhancement for obstruction of justice based on his perjury as defendant failed to challenge the enhancement in his first appeal and it became the law of the case; 2) the court properly applied the mandate rule to defendant's objection to the stolen weapons enhancement; 3) defendant's claim that his use of a dangerous weapon during the robbery was an improper basis for an upward departure and his claim that court's decision to depart upwardly based on defendant's disruption of government functions are both barred by the law of the case doctrine; 4) the court did not err in imposing a two-level increase for extreme psychological injury; 5) the court did not abuse its discretion in imposing an upward departure to his sentencing level based on his criminal history; and 6) defendant's sentence was reasonable.    

Read US v. Wallace, No. 07-1884


Appellate Information
Appeal from the United States District Court for the District of Rhode Island.
Filed July 23, 2009

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

Counsel
For Appellant: Camille A. McKenna.
For Appellee: Donald C. Lockhart.

US v. Rodrigeuz-Barrios, No. 07-1854

Conviction for committing a carjacking resulting in death is affirmed where: 1) the court properly denied defendant's motion for acquittal as the evidence was sufficient for a reasonable jury to conclude that defendant had the intent to kill or seriously harm the victim when he took control of her car; 2) the court did not err in excluding tape recordings of the victim as the recordings did not contradict the victim's hearsay allegations of abuse; 3) the court did not abuse its discretion in refusing to allow defendant to present expert witness testimony regarding the reliability of eyewitness identification; 4) the court did not abuse its discretion denying defendant's motion for a mistrial as the brief mention of the possibility of a polygraph examination did not warrant a mistrial; and 5) the court erroneously admitted certain statements made by the victim's friend and mother, but the error was harmless.    

Read US v. Rodrigeuz-Barrios, No. 07-1854 

Appellate Information
Appeal from the United States District Court for the District of Puerto Rico.
Filed July 23, 2009

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

Counsel
For Appellant: G. Richard Strafer.
For Appellee: Vijay Shanker, United States Department of Justice.

US v. Allen, No. 08-1451

Conviction for being a felon in possession of a firearm is affirmed where: 1) the district court did not abuse its discretion in failing to conduct an evidentiary hearing before denying defendant's motion to suppress as defendant failed to raise a genuine issue of material fact regarding the plain view analysis or the existence of probable cause; 2) the court did not abuse of discretion by finding without an evidentiary hearing that his statements to the police were voluntary, as there was an affidavit and a signed Miranda acknowledgment, and defendant's assertions were unsupported by any references to specific statements he sought to suppress; and 3) the court did not abuse its discretion in denying defendant's motion for reconsideration as defendant's affidavit in support of his motion did not respond to the government's plain view assertions or specify the alleged Miranda violations.   

Read US v. Allen, No. 08-1451

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided July 22, 2009

Judges
Befire Lynch, Chief Judge, Boudin and Lipez, Circuit Judges.
Opinion by Lipez, Circuit Judge.

Counsel
For Appellant: Neil S. Tassel, Denner Pellegrino LLP.
For Appellee:  Mark T. Quinlivan, Assistant United States Attorney.

McCreath v. Holder, No. 08-2276

Petition for review of an order denying adjustment of status is denied where: 1) the Board of Immigration Appeals' decision did not violate petitioner's due process rights as adjustment of status is not a cognizable liberty or property interest for purposes of due process because it is a discretionary form of relief; 2) petitioner was not entitled to have the Board remand to the IJ to reach a conclusion about whether the In re Magana exception for limited situations where not recognizing a marriage would cause gross miscarriage of justice applied; and 3) the Board's ruling as to plaintiff's second adjustment of status petition was supported by substantial evidence and thus could not serve as the basis for adjustment of status.   

Read McCreath v. Holder, No. 08-2276

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals
Decided July 21, 2009

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

Counsel
For Petitioner: Susanna L. Shafer, Law Office of Susanna L Shafer,Daniel F. Cashman, Cashman & Lovely, P.C.

For Respondent:  Edward C. Durant, Michael F. Hertz, Blair T. O'Connor, Office of Immigration Litigation.

Chedid v. Holder, No. 08-1552

Petition for review of a denial of plaintiff's second motion to reopen immigration proceedings to allow him to apply for adjustment of status based on his marriage to a United States citizen is denied where Board of Immigration Appeals did not abuse its discretion in finding that plaintiff had not exercised the due diligence required to invoke the equitable tolling of the time limitations on his untimely motion to reopen.    

Read Chedid v. Holder, No. 08-1552

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals.
Decided July 17, 2009

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

Counsel
For Petitioner: Saher Joseph Macarius, Audrey Youssef Botros, and Law Offices of Saher J. Macarius.

For Respondent: Gregory G. Katsas, Greg D. Mack, and Wendy Benner-León, U.S. Department of Justice.

Citibank Global Markets v. Hernandez, No. 08-1533

District court judgment for plaintiff finding that the settlement agreement between the parties was valid and binding is affirmed where: 1) the settlement agreement was a valid contract between the parties; 2) the settlement agreement compromised all commission-related disputes between the parties; and 3) defendant did not adequately raise a claim that the settlement was infected with "dolo," as defendant's attorney was experienced and accomplished and failed to allege sufficient colorable bad faith on the part of plaintiff. Denial of plaintiff's request for attorneys' fees is affirmed where: 1) the court did not abuse its discretion in finding that defendant's suit was neither obstinate nor frivolous under the Puerto Rico Rules of Civil Procedure; and 2) a review of the record reveals no basis for finding a FRCP 11 (b) violation as there is no evidence that defendant's claims were brought for an improper purpose, rose to the level of being frivolous, or made unsupportable factual allegations. 

Read Citibank Global Markets v. Hernandez, No. 08-1533

Appellate Information
Appeal from the United States District Court for the District of Puerto Rico.
Decided July 17, 2009

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

Counsel
For Plaintiff: Néstor M. Méndez Gómez, Janitza M. García-Marrero and Pietrantoni Mendez & Alvarez LLP.

For Defendant: Rubén T. Nigaglioni, Nigaglioni & Ferraiuoli Law Offices, PSC.

Burke v. McDonald, No. 07-2691

In a civil rights action brought under the Fourth Amendment, district court judgment is affirmed where: 1) the district court did not abuse its discretion in denying defendant's motions for a new trial and remittitur as the court properly refused to limit liability to the damages plaintiff incurred between the arrest and the arraignment, and the jury's award can fairly be understood to be supported by at least one and probably two rational appraisals of the damages; and 2) the court properly reduced the amount of attorney's fees awarded to plaintiff based on a consideration of his unsuccessful claims. 

Read Burke v. McDonald, No. 07-2691

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided July 17, 2009

Judges
Before Howard, Selya, and Hansen, Circuit Judges.
Opinion by Howard, Circuit Judge.

Counsel
For Appellant: Joseph P. Kitteredge.

For Appellee: Robert S. Sinsheimer.

Gargano v. Liberty Int'l Underwriters, Inc., No. 08-2287

In a professional liability insurance coverage dispute, judgment dismissing plaintiff's complaint is affirmed where plaintiff stated no plausible claim for breach of contract or for deceptive business practices under Massachusetts law as the insurance claim was neither made nor reported within the relevant policy coverage periods.    

Read Gargano v. Liberty Int'l Underwriters, Inc., No. 08-2287

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided July 14, 2009

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

Counsel
For Appellant: David T. Barrat.
For Appellee: William T. Bogaert, Marissa I. Delinks, Brooks L. Glahn.

Makieh v. Holder, No. 08-2213

Petition for review of an order denying asylum, withholding of removal, and protection under the Convention Against Torture is dismissed in part and denied in part where: 1) there was no jurisdiction to consider the asylum application as the application did not present any colorable constitutional claims or questions of law; and 2) substantial evidence supported denying the application for withholding of removal and for protection under the CAT as the record did not support a claim that he would more likely than not be persecuted and tortured if he were to return to Syria.    

Read Makieh v. Holder, No. 08-2213

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals
Decided July 14, 2009

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

Counsel
For Petitioner: Ilana Etkin Greenstein, Jeremiah Friedman, Maureen O'Sullivan, Harvey Kaplan, Jeanette Kain

For Respondent: Michael H. Hertz, Michelle Gorden Latour, Timothy G. Hayes.

Amouri v. Holder, No. 08-1993

Petition for review of a decision denying asylum, withholding of removal, and protection under the United Nations Convention Against Torture is denied where: 1) substantial evidence supported an Immigration Judge's determination that plaintiff was not persecuted on account of a statutorily protected ground, and that the most likely impetus for the acts against him was greed, not politics; and 2) the court did not violate plaintiff's due process rights in refusing to grant him a further continuance as he was not prejudiced by the denial.    

Read Amouri v. Holder, No. 08-1993

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals
Decided July 14, 2009

Judges
Before Boudin, Selya and Lipez, Circuit Judges.
Opinion by Selya, Circuit Judge.

Counsel
For Petitioner: Michael A. Paris, Cutler & Associates.

For Respondent: Michael F. Hertz, Hillel Smith, Anthony Wray Norwood.

Cendrawasih v. Holder, No. 08-2178

Petition for review of an order denying asylum is denied where plaintiff failed to establish that she had a well-founded fear future persecution, as the country conditions in Indonesia without more do not qualify a Christian Indonesian for asylum, and the individual difficulties plaintiff has faced are a series of isolated incidents no greater than those faced by other Indonesian Christians have been found insufficient to warrant asylum. 

Read Cendrawasih v. Holder, No. 08-2178

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals.
Decided: July 2, 2009

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

Counsel
For Petitioner: Randall A. Drew and Wiggin & Nourie, P.A.

For Respondent: Greg D. Mack and Michael F. Hertz, Department of Justice.

Bristol West Ins. Co. v. Wawanesa Mutual Ins. Co., No. 08-2269

In a dispute involving the interpretation of an insurance contract, district court judgment is reversed where the plain language of the Out of State Coverage clause in the policy makes specific reference to any accident that occurs out of state, and does not focus on the limits of the out of the state financial responsibility law, and thus the insurance policy necessarily expands the amount of liability coverage in this case since the accident occurred in New Brunswick. 

Read Bristol West Ins. Co. v. Wawanesa Mutual Ins. Co., No. 08-2269

Appellate Information
Appeal from the United States District Court for District of Maine.
Decided July 1, 2009

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

Counsel
For Appellant: Peter C. Felmly, Melissa A. Hewey and Drummond Woodsum & MacMahon.

For Appellee: Hans H.J. Pijls, Plunkett Cooney, P.C., James D. Poliquin, Norman, Hanson & DeTroy, LLC.

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