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

US v. Niemi, No. 08-1813

District court's conviction of defendant for conspiracy to possess with intent to distribute drugs and other drug related offenses is affirmed where: 1) jury instructions were sufficient as the substance of defendant's requested instruction was covered in the district court's instructions; 2) there was sufficient evidence to support the jury's conclusion that defendant took part in a single conspiracy: 3) district court's admission of the evidence regarding bad acts committed by defendant after the end of the conspiracy was far from plain error; and 4) at no point in its closing argument did the prosecution make references to defendant's failure to testify.

Read US v. Niemi, No. 08-1813

Appellate Information

Appeal from the United State District Court for the District of Maine
Decided August 31, 2009

Judges

Before Boudin and Howard, and Tashima, Of The Ninth Circuit, sitting by designation.    
Opinion by Tashima, Circuit Judge.

Counsel

For Appellants:  William Maselli

For Appellee:  Margaret D. McGaughey and Paula D. Silsby, United States Attorney

US v. Dubose, No. 08-2382

District court's denial of defendant's motion to suppress is affirmed where the officer's justifiable belief that he had detected a firearm in defendant's sweatshirt pocket, in combination with defendant's strange response to officer's question about the object in this pocket, clearly justified his decision to reach in and retrieve the firearm in defendant's pocket.

Read US v. Dubose, No. 08-2382

Appellate Information

Appeal from the United State District Court for the District of Massachusetts
Decided August 31, 2009

Judges

Before Lynch, Chief Judge, Torruella, Circuit Judge, and Ebel, Of The Tenth Circuit, sitting by designation.    
Opinion by Ebel, Circuit Judge.

Counsel

For Appellants: Daniel J. Cloherty and Victoria L. Steinberg of Dwyer & Collora, LLP by appointment of the court.

For Appellee: Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney

Limone v. US, No. 08-1327

District court's award of $100 million to the plaintiffs in their action against the United States under the Federal Tort Claims Act (FTCA) for murder related convictions due to FBI's suppression of contrary evidence, is affirmed where, although high, the amount is not so grossly disproportionate to the harm sustained as to either shock the Court's collective conscience or raise the specter of a miscarriage of justice, and the court used a permissible methodology in computing damages and they are not so excessive as to warrant intervention. District court's finding that the government is liable for malicious prosecution is rejected while its finding that the government is liable for intentional infliction of emotional distress is upheld. Lastly, the district court's decision to reject the government's invocation of the discretionary function defense is upheld.     

Read Limone v. US, No. 08-1327

Appellate Information

Appeal from the United State District Court for the District of Massachusetts
Decided August 27, 2009

Judges

Before Torruella and Seyla, Circuit Judges, and Tashima, Of The Ninth Circuit, sitting by designation.    
Opinion by Seyla, Circuit Judge.

Counsel

For Appellants: Joshua Waldman, Appellate Staff, Civil Division, United States Department of Justice, with whom Gregory G. Katsas, Assistant Attorney General, Michael J. Sullivan, United States Attorney, and Michael S. Raab, Appellate Staff, Civil Division, United States Department of Justice

For Appellee:   Michael Avery, Juliane Balliro, Christine M. Griffin, WolfBlock, LLP, Richard D. Bickelman, Catherine J. Savoie, Ian H. Moss, Posternak, Blankstein & Lund, LLP, William T. Koski, Koski & Kearns, LLP, Daniel R. Deutsch, John C. Foskett, Deutsch Williams, Howard Friedman, Jennifer L. Bills, David Milton, Law Offices of Howard Friedman, P.C., Victor J. Garo, Austin J. McGuigan, Glenn E. Coe, Joseph B. Burns, Bridget Ciarlo, Rome McGuigan, P.C., Michael Rachlis, Edwin L. Durham, and Rachlis Durham Duff & Adler, LLC

Santana-Castro v. Toledo-Davilla, No. 08-1964

District court's dismissal of plaintiffs' suit against Puerto Rico Police Department officers and their supervisors for violations of their constitutional rights, as well as claims under Puerto Rico's constitutional and civil law, is affirmed as time-barred where under the identicality requirement, the causes of action asserted in the complaint must be based on the same substantive claims as asserted in the extrajudicial letter. 

Read Santana-Castro v. Toledo-Davilla, No. 08-1964

Appellate Information

Appeal from the United State District Court for the District of Puerto Rico
Decided August 27, 2009

Judges

Before Lynch, Chief Judge, Torruella, Circuit Judge, and Ebel, Of The Tenth Circuit, sitting by designation.    
Opinion by Torruella, Circuit Judge.

Counsel

For Appellants: Guillermo Ramos-Luiña, Harry Anduze-Montaño and José A. Morales-Boscio

For Appellee:  Rosa Elena Pérez-Agosto, Assistant Solicitor General, Irene S. Soroeta-Kodesh, Solicitor General, Leticia Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. Girón-Anadón, Deputy Solicitor General

N. Ins. Co. of NY v. Point Judith Marina, No. 08-2156

In a civil action involving sinking of a recreational boat, the district court's judgment is affirmed where the district court did not err: 1) in finding defendant had no obligation to discover defects of the boat; 2) in finding defendant not responsible for the disabled automatic bilge pump; 3) in making various other factual findings; and 4) in ruling that the contract between Picchione and PJM did not provide for indemnification on these facts.     

Read N. Ins. Co. of NY v. Point Judith Marina, No. 08-2156

Appellate Information

Appeal from the United State District Court for the District of Rhode Island
Decided August 27, 2009

Judges

Before Lynch, Chief Judge, Torruella, Circuit Judge, and Ebel, Of The Tenth Circuit, sitting by designation.     
Opinion by Torruella, Circuit Judge.

Counsel

For Appellants: Frederick A. Lovejoy, Lovejoy & Associates

For Appellee:  Michael J. Rauworth, Carl E. Fumarola and Cetrulo & Capone LLP.

Chen v. Holder, No. 08-2398

Petition for review of a final order of the BIA denying Chinese petitioners' application for asylum, withholding of removal, and protection under the CAT is denied where the IJ's adverse credibility determination was supported by substantial evidence from petitioners' inconsistent testimonies, witness demeanor, and petitioners failed to present corroborating evidence given numerous opportunities to do so.   

Read Chen v. Holder, No. 08-2398

Appellate Information

Petition for Review of an Order of the Board of Immigration Appeals

Decided August 27, 2009

Judges

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

Counsel

For Appellants: William P. Joyce and Joyce & Associates P.C.  

For Appellee:  Carmel A. Morgan, Trial Attorney, Office of Immigration Litigation, Michael F. Hertz, Acting Assistant Attorney General, Civil Division, and Barry J. Pettinato, Assistant Director

US v. Calderon, No. 05-2650

In a prosecution for conspiracy to commit money laundering, district court's denial of defendant's motion for acquittal, on the ground that the evidence was insufficient to establish that he possessed the mens rea required for the crime, is affirmed where a rational jury could find: 1) that defendant knew that the money he transferred derived from unlawful activity; 2) beyond a reasonable doubt, that defendant knew that the money came from some form of unlawful activity; 3) that the defendant engaged in conduct that was commonly known to conceal the nature, location, source, ownership, or control of the proceeds.    

US v. Calderon, No. 05-2650

Appellate Information

Appeal from the United State District Court for the District of Puerto Rico
Decided August 26, 2009

Judges

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

Counsel

For Appellants: Saul Roman Santiago for appellant José A. Rivera Calderón, Rafael Anglada-López for appellant Jesús Pomales-Pizarro. Judith H. Mizner, Assistant Federal Public Defender, Federal Defender Office, District of Massachusetts, for appellant Luis Daniel Rosario-Rivas.

For Appellee:  German A. Rieckehoff, Assistant United States Attorney, with whom Nelson Pèrez-Sosa, Assistant United States Attorney, Chief, Appellant Division and Rosa Emilia Rodriguez Velez, United States Attorney, were on brief, for appellee.

US v. Siciliano, No. 08-1745

In a prosecution for drug-related offenses, grant of defendant's motion to suppress evidence stemming from a protective sweep is affirmed where: 1) district court did not commit clear legal error as the court employed the correct legal standard in asking whether a warrant would have been sought if what actually happened had not occurred; 2) court did not commit clear factual error in concluding that the government did not establish that the agents were not prompted to seek the search warrant by information acquired during an unlawful protective sweep; and 3) district court did not abuse its discretion in denying government's motion to reconsider as the language of the court's order suggests that it did consider all of the arguments. 

Read US v. Siciliano, No. 08-1745

Appellate Information

Appeal from the United State District Court for the District of Massachusetts
Decided August 26, 2009

Judges

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

Counsel

For Appellant:  Randall E. Kromm, Assistant United States Attorney, Michael J. Sullivan, United States Attorney.

For Appellee:   Robert M. Strasnick, Andrews & Updegraph, P.C.

Negron-Almeda v. Santiago, No. 08-2360

In a case brought by dismissed employees of a government agency in Puerto Rico claiming political discrimination, district court's order of reinstatement against defendant-intervenor is affirmed where: 1) it was proper for the district court to revisit the earlier order where, under the law of the case doctrine, courts may reopen a matter previously decided on a showing of exceptional circumstances such as the serious injustice to the plaintiffs in this case; 2) the reinstatement order was proper as defendants could be substituted for the original party under Rule 25(c) and they are not protected by sovereign immunity. 

Read Negron-Almeda v. Santiago, No. 08-2360

Appellate Information

Appeal from the United State District Court for the District of Puerto Rico
Decided August 26, 2009

Judges

Before Boudin and Lipez, Circuit Judges, and Signal, District Judge. 
Opinion by Lipez, Circuit Judge.

Counsel

For Appellant:  Eyck O. Lugo-Rivera, Martinez Odell & Calabria.

For Appellee: Claudio Aliff-Ortiz, Eliezer A. Aldarondo-López, Aldarondo & López Bras, PSC.

Am. Lease Ins. Agency Corp. v. Balboa Capital Corp., No. 08-2414

In a dispute involving a set of contracts between four corporations, summary judgment for defendants is reversed and remanded for entry of summary judgment in favor of plaintiffs and calculation of damages where: 1) proper construction of the Program Agreement and the Insurance Policy does not allow defendant to unilaterally cancel individual insurance policies, and any existing coverage would survive termination of the Program Agreement, as the language of the Agreement is unambiguous; 2) the continuation proviso in the Finance Agreement would be rendered meaningless under defendant's reading, and when general language is in conflict with more specific language, the specific language controls; and 3) plaintiff's claim that defendant breached the implied covenant of good faith and fair dealing fails because under New York law, it is duplicative of a breach of contract claim.   

Read Am. Lease Ins. Agency Corp. v. Balboa Capital Corp., No. 08-2414

 Appellate Information

Appeal from the United State District Court for the District of Massachusetts
Decided August 26, 2009

Judges

Before Torruella, Circuit Judge, Tashima, of the Ninth Circuit, sitting by designation.    
Opinion by Torruella, Circuit Judge.

Counsel

For Appellant:  James C. Donnelly, Jr., Michael R. Christy and Mirick, O'Connell, DeMallie & Lougee, LLP.

For Appellee:  Alan A. Heller, Heller, Horowitz & Feit, P.C.

US Fidelity & Guar. Co. v. Arch Ins. Co. , No. 08-1709

In a dispute between two sureties claiming rights to the same property, plaintiff's appeal requesting review of a district court order summarily dissolving a pretrial attachment is dismissed for lack of jurisdiction under the collateral order doctrine, where the circuit court was unable to discern the basis for the district court's ruling with respect to the unexplained interlocutory order.     

Read US Fidelity & Guar. Co. v. Arch Ins. Co. , No. 08-1709

Appellate Information

Appeal from the United State District Court for the District of Massachusetts
Decided August 25, 2009

Judges

Before Boudin and Lipez, Circuit Judges, and Signal, of the District of Maine, sitting by designation.  
Opinion by Lipez, Circuit Judge.

Counsel

For Appellant:  Bradford R. Carver, with whom Marissa I. Delinks, Bernard D. Posner, and Hinshaw & Culbertson LLP were on brief, for appellant.

For Appellee:  Todd R. Regan, with whom Dennis C. Cavanaugh, Gordon G. Patterson, and Robinson & Cole LLP were on brief, for appellee.

US v. Padilla-Colon, No. 07-2372

Conviction of defendant for possession of drugs with intent to distribute is affirmed where, although defendant's waiver of appeal was invalid, there was no error in the district court finding that defendant did not qualify for the safety valve provision of 18 U.S.C. section 3553(f), based on a reasoned assessment of the defendant's credibility in light of the facts on record.  

US v. Padilla-Colon, No. 07-2372

Appellate Information

Appeal from the United State District Court for the District of Massachusetts
Decided July 31, 2009

Judges

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

Counsel

For Appellant:  Hector L. Ramos-Vega, Assistant Federal Public Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, was on brief, for appellant.

For Appellee: Nelson Pérez-Sosa, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, was on brief, for appellee.

Calderon-Garnier v. Sanchez-Ramos, No. 08-1284

In an employment discrimination case brought by a former prosecutor of Puerto Rico, summary judgment and dismissal rulings for defendants are affirmed where plaintiff raised no genuine issue as to any material fact that would cause the court to doubt whether the plaintiff had a meaningful opportunity to participate in a pre-termination hearing.      

Read Calderon-Garnier v. Sanchez-Ramos, No. 08-1284

Appellate Information

Appeal from the United State District Court for the District of Puerto Rico
Decided August 24, 2009

Judges

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

Counsel

For Appellant:  Israel Roldán-González, for appellant.  

For Appellee:   Eliezer A. Aldarondo, with whom Eileen Landrón-Guardiola, Eduardo Vera-Ramírez, Luis A. Rodríguez-Muñoz, Landrón & Vera, LLP, Roberto J. Sánchez-Ramos, Secretary of Justice, and Maite Oronoz-Rodríguez, Acting Solicitor General, were on brief for appellee Hon. Anabelle Rodríguez

Crawford v. Clarke, No. 08-2100

In an action brought by Muslim inmates in the custody of the Massachusetts Department of Corrections (DOC) alleging the Commissioner violated their right to freely exercise their religion, grant of an injunction in favor of inmates is affirmed where the district court did not abuse its decision in denying Commissioner's motion for reconsideration as the Commissioner sought to introduce evidence that could have been introduced at trial but chose not to.   

Read Crawford v. Clarke, No. 08-2100

Appellate Information

Appeal from the United State District Court for the District of Massachusetts
Decided August 24, 2009

Judges

Before Torruella and Seyla, Circuit Judges, and Tashima,  of the Ninth Circuit, sitting by designation.
Opinion by Torruella, Circuit Judge.

Counsel

For Appellant: Richard C. McFarland, Legal Division, Department of Correction, with whom Nancy Ankers White, Special Assistant Attorney General, was on brief for appellant Harold W. Clarke.

For Appellee: Michael Kendall, with whom Neal E. Minahan, David Quinn Gacioch, and McDermott Will & Emery LLP, were on brief for appellees Hudson and Tyler.

Genereux v. American Beryllia Corp., No. 07-2676

In a product liability case, district court's grant of summary judgment for the defendants is vacated and remanded where: 1) in regards to the plaintiff's claims of negligence, breach of warranty, failure to warn, and fraudulent concealment, it is not whether the plaintiff had knowledge that she had sustained substantial physical harm, but when she had sufficient notice that her lung disease was caused by the defendants' conduct, and material issue exists as to when the plaintiff had notice that the likely cause of her breathing problems was exposure to beryllium; 2) the claim for loss of consortium must be determined separately from the underlying claims; 3) defendants are not entitled to summary judgment on the sophisticated user defense as there are genuine issues of material fact about whether plaintiff's employer, Raytheon, knew or reasonably should have known of the particular dangers posed by polishing  beryllium metals and by exposing its workers to a particular hazardous concentrations; 4) record supports the conclusion that plaintiff worked with berryllium products manufactured by defendants; 5) there are genuine issues of material facts as to whether Raytheon was the proximate cause of plaintiff's injury.  

Read Genereux v. American Beryllia Corp., No. 07-2676

Appellate Information
Appeal from the United State District Court for the District of Massachusetts
Decided August 21, 2009

Judges
Before Torruella and Lipez, Circuit Judges, and Baldock, Circuit Judge of the Tenth Circuit sitting by designation.
Opinion by Lipez, Circuit Judge.

Counsel
For Appellant:   Ruben Honik, with whom Stephan Matanovic, Golomb & Honik, P.C., Leo V. Boyle, and Meehan, Boyle, Black and Bogdanow, P.C. were on brief, for appellants.

For Appellee:  William F. Ahern, Jr., with whom Jeremy Y. Weltman and Clark, Hunt & Embry were on brief, for appellee American Beryllia Corp.  Robert M.A. Nadeau, with whom Nadeau Law, LLC was on brief, for appellee Hardric Laboratories, Inc.   Jeffery D. Ubersax, with whom Robert S. Faxon, Jones Day, Alan M. Spiro, and Edwards Angell Palmer & Dodge LLP were on brief, for appellee Brush Wellman, Inc.

US v. Platte, No. 08-1491

Sentencing of a defendant convicted of various drug-trafficking is affirmed where: 1) as long as defendant's sentence comes within the maximum established by the jury's verdict, a sentencing court's preponderance-of-the-evidence factfinding on the issue of drug quantity, even though it may pave the way for a stiffer sentence within that maximum, does not violate the Apprendi principle, and thus not constitutionally improvident; 2) the district court did not commit clear error in determining the quantity of drugs attributable to the defendant as it is supported by a sensible view of the record and rested on permissible approximations.   

Read US v. Platte, No. 08-1491

Appellate Information
Appeal from the United State District Court for the District of New Hampshire
Decided August 21, 2009

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

Counsel
For Appellant:  Paul J. Garrity 

For Appellee: Michael J. Gunnison, Acting United States Attorney, and Aixa Maldonado-Quiñones, Assistant United States Attorney.   

Matovu v. Holder, No. 08-2391

Petition for review of a final order of the BIA denying a Ugandan national's application for asylum, withholding of removal, and protection under the CAT is denied where: 1) petitioner has not met her burden of proving past persecution nor likelihood of future persecution on her return to Uganda as no evidence other than speculation was presented; 2) there is nothing to compel a factfinder's conclusion that the petitioner would more likely than not be tortured if removed. 

Read Matovu v. Holder, No. 08-2391

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

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

Counsel
For Appellant: William P. Joyce 

For Appellee:  Hillel R. Smith, Trial Attorney, Office of Immigration Litigation, Tony West, Assistant Attorney General, Civil Division, and Terri J. Scadron, Assistant Director, Office of Immigration Litigation.

Pakasi v. Holder, No. 06-2389

Petition for review of final order from the Board of Immigration Appeals (BIA) is denied where: 1) asylum claims were time-barred; 2) a challenges to denial of withholding of removal failed; and 3) the BIA did not abuse its discretion in declining to remand in light of new country conditions evidence where it considered the evidence and concluded that it failed to establish a substantial likelihood of different result upon remand.      

Read Pakasi v. Holder, No. 06-2389

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals
Decided August 18, 2009

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

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

For Respondent: Peter D. Keisler, Richard M. Evans and Paul Fiorino. 

Lopez-Castro v. Holder, No. 08-1895

Guatemalan national's petition for review of an order denying an application for withholding of removal is denied where substantial evidence supported a finding that petitioner failed to establish a sufficient nexus between the harm alleged (past and future) and his ethnicity or other statutorily protected ground. 

Read Lopez-Castro v. Holder, No. 08-1895

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals
Decided August 18, 2009

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

Counsel
For Petitioner:  Randy Olen.  

For Respondent: Tony West, Anthony Norwood, and Richard Zanfardino.

Warui v. Holder, 08-2278

Petition for review of a denial of Kenyan petitioner's motion to reopen seeking to apply individually for withholding of removal and protection under the Convention Against Torture (CAT) is denied where: 1) there was no abuse of discretion in the denial as the motion stated no new facts material to the claims, was not supported by any previously unavailable evidence, and a divorce from petitioner's husband did not constitute changed circumstances in this case; and 2) her brief improperly attempted to challenge findings of the BIA and the IJ regarding original claims for withholding of removal and protection under the CAT.  

Read Warui v. Holder, No. 08-2214 

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals
Decided August 18, 2009

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

Counsel
For Petitioner: Carlos E. Estrada.

For Respondent: Kristin A. Moresi, Tony West, and Barry J. Pettinato.  

US v. Textron Inc., No. 07-2631

In an IRS enforcement action against defendant-Textron corporation, a ruling denying the petition for enforcement is vacated and remanded where, contrary to the ruling below, the attorney work product doctrine  does not shield from an IRS summons "tax accrual work papers" prepared by lawyers and others in Textron's Tax Department to support Textron's calculation of tax reserves for its audited corporate financial statements.

Read the full decision in US v. Textron Inc., No. 07-2631

Appellate Information

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
Hon. Ernest C. Torres, Senior U.S. District Judge
Decided  August 13, 2009

Judges

Lynch, Chief Judge, Torruella, Boudin, Lipez and Howard, Circuit Judges.
En Banc opinion

Counsel

Judith A. Hagley, Tax Division, Department of Justice, with whom David I. Pincus, Robert W. Metzler, Attorneys, Tax Division, Department of Justice, John A. DiCicco, Acting Assistant Attorney General, Gilbert S. Rothenberg, Acting Deputy Assistant Attorney General, and Robert Clark Corrente, United States Attorney, were on supplemental brief for appellant.

John A. Tarantino with whom Patricia K. Rocha, Adler Pollock & Sheehan P.C., Arthur L. Bailey, J. Walker Johnson and Steptoe & Johnson LLP were on supplemental brief for appellee.

Professor Claudine V. Pease-Wingenter, Phoenix School of Law, on brief in support of appellee Textron Inc., Amicus Curiae.

David M. Brodsky, Robert J. Malionek, Adam J. Goldberg, Latham & Watkins LLP, Robin S. Conrad, Amar D. Sarwal, National Chamber Litigation Center, Inc., Susan Hackett, Senior Vice President and General Counsel, Association of Corporate Counsel, on brief in support of Textron Inc., Amici Curiae.

US v. Lenz, No. 08-2149

District court judgment denying defendant's motions for a new trial based on newly discovered evidence following his conviction for transporting a minor in interstate commerce with the intent to engage in sexual activity is affirmed where: 1) the victim's postverdict corroboration of defendant's defense theory did not constitute newly discovered evidence; and 2) defendant's claim that his trial attorney provided ineffective assistance of counsel because he did not contact the victim prior to trial to ascertain whether she would corroborate defendant's testimony does not constitute newly discovered evidence, as defendant knew about it the time of trial. 

Read US v. Lenz, No. 08-2149

Appellate Information
Appeal from the United State District Court for the District of New Hampshire
Decided August 14, 2009

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

Counsel
For Appellant: Jaye L. Rancourt.

For Appellee: Donald A. Feith, Assistant United States Attorney.

US v. Fagan, No. 08-1787

District court judgment denying a motion to suppress evidence is affirmed where the court properly ruled that the storage closet in question, although not itself within the apartment or separately specified in the warrant, was appurtenant to the apartment and therefore validly searched.    

Read US v. Fagan, No. 08-1787

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided August 13, 2009

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

Counsel
For Appellant: Ryan M. Schiff, Salsberg & Schneider.

For Appellee:  F. Thompson Reece, Special Assistant United States Attorney.

McLaughlin v. Corsini, No. 07-2798

District court judgment denying petition for habeas corpus is affirmed where: 1) a state court's conclusion that the nondisclosure of a nonprosecution agreement with a key witness could not have influenced the jury was not contrary to or involve an unreasonable application of clearly established federal law; and 2) its conclusion that defendant failed to establish that the Commonwealth had a duty to investigate or disclose additional details about an informant was not contrary to or an unreasonable application of Supreme Court precedent.    

Read McLaughlin v. Corsini, No. 07-2798

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided August 13, 2009

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

Counsel
For Appellant: Stephen B. Hrones.

For Appellee: Susan Reardon, Assistant Attorney General.  

Sensing v. Outback Steakhouse of Florida, LLC, No. 08-1865

In an employment discrimination action, summary judgment for defendant is reversed where: 1) plaintiff established a prima facie case of discrimination under state law as she put forth evidence that defendant regarded plaintiff as handicapped, that she was still able to perform the essential functions of the job despite the handicap, and that she suffered an adverse employment action as a result of her handicap; and 2) a reasonable jury could find that the  removal of plaintiff from the work schedule was predicated on impermissible discrimination rather than a permissible legitimate concern about her ability to perform the job safely.  

Read Sensing v. Outback Steakhouse of Florida, LLC, No. 08-1865

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided: August 11, 2009

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

Counsel
For Appellant: Paul H. Merry

For Appellee: John F. Welsh, Jennifer Belli and Bello Black & Welsh LLP.  

US v. Hicks, No. 07-2037

Conviction and sentence for drug crimes and being a felon in possession of ammunition is affirmed where: 1) the district court properly denied defendant's motion to suppress evidence seized in a search of a house as the search warrant established probable cause to conduct the search; 2) the court properly denied defendant's motion for a hearing to contest the veracity of statements made by the officer in the warrant affidavit; 3) the evidence was sufficient to support his conviction; 4) the court did not err in admitting prior act evidence as the evidence had special relevance, and even if there was an error it was harmless in light of the other overwhelming evidence against defendant; 5) admission of recorded statements did not violate defendant's Sixth Amendment rights under Crawford as they were admitted to provide context for the statements of defendant and for the truth of the matter asserted; 6) the court did not abuse its discretion in admitting expert testimony; and 7) defendant's sentence did not violate the Sixth Amendment.    

Read US v. Hicks, No. 07-2037

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided: August 11, 2009

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

Counsel
For Appellant: Jennifer Appleyard.

For Appellee: Kelly Lawrence. 

US v. Sicher, No. 07-2414

Sentence for uttering forged securities, health care program theft and income tax evasion is affirmed where: 1) the district did not err in imposing a two-level sentencing enhancement for abuse of a position of trust as the record shows that defendant exercised considerable authority and discretion, was highly trusted, and used her position of trust to conceal her offenses; and 2) the court considered evidence of defendant's mental health but did not find it persuasive, and thus she is not entitled to a downward variance.   

Read US v. Sicher, No. 07-2414

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided August 7, 2009

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

Counsel
For Appellant: Syrie D. Fried, Office of the Massachusetts Federal Defender.

For Appellee: Mark T. Quinlivan, Assistant United States Attorney.  

Hussain v. Holder, No. 08-2214

Petition for review of an order denying application for withholding of removal and protection under the Convention Against Torture, and rejecting a request for voluntary departure, is denied in part and dismissed in part where: 1) petitioner is not entitled to withholding of removal as substantial evidence supports a determination that petitioner faced neither past persecution nor a likelihood of future persecution, and did not show a well-founded fear of future persecution; 2) petitioner is not entitled to protection under the Convention Against Torture as he presented no evidence regarding the likelihood of his being tortured upon his return to his home country; and 3) the present court has no jurisdiction to review denials of voluntary departure.    

Read Hussain v. Holder, No. 08-2214

Appellate Information
Petition for Review of an Order of the Board of Immigration Appeals
Decided August 7, 2009

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

Counsel
For Petitioner: Carlos E. Estrada.

For Respondent: Anthony W. Norwood, Tony West, and Terri J. Scadron.

In re Rudler, No. 08-9007

Bankruptcy Appellate Panel judgment is affirmed where, in calculating monthly income under the means test for identifying an abusive Chapter 7 petition, the plain language of 11 U.S.C. sec. 707(b)(2) allows debtors to deduct payments due on a secured debt notwithstanding the debtor's intention to surrender the collateral.    

Read In re Rudler, No. 08-9007

Appellate Information
Appeal from the Bankruptcy Appellate Panel of the First Circuit.
Decided August 5, 2009

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

Counsel
For Appellant: Teal Luthy Miller.

For Appellee: Scott W. LaPointe.

Franklin Memorial Hospital v. Harvey, No. 08-2550

In an action challenging Maine's free care laws and the MaineCare program as uncompensated takings of property, district court judgment is affirmed where: 1) the court properly rejected plaintiff's takings challenge to Maine's free care laws as the laws do not effect a per se taking since the hospital is not required to serve low income patients and there is no allegation that the regulations remove all economically beneficial uses of the property, and do not effect an ad hoc taking under the Penn Central analysis; and 2) the court properly dismissed plaintiff's argument that the reimbursement rate it receives under the MaineCare program is an unconstitutional taking as there is no coercive financial incentive to participate in MaineCare and thus plaintiff's participation in the program is voluntary.     

Read Franklin Memorial Hospital v. Harvey, No. 08-2550

Appellate Information
Appeal from the United States District Court for the District of Maine.
Decided August 5, 2009

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

Counsel
For Appellant: Marc N. Frenette.

For Appellee: Christopher C. Taub.

American National Fire Ins. Co. v. York County, No. 08-2439

District court judgment holding that plaintiff was equitably estopped from pursuing its claim for reimbursement of deductibles related to a class action settlement is affirmed where the: 1) the court properly found that plaintiff's course of conduct in settling the class action was unreasonable and misleading; 2) defendant reasonably believed that its contribution to the settlement fund would absolve it of all liability; and 3) defendant suffered a cognizable detriment through that reliance as it will now be expected to make additional payments.    

Read American Nat'l Fire Ins. Co. v. York County, No. 08-2439

Appellate Information
Appeal from the United States District Court for the District of Maine.
Decided August 5, 2009

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

Counsel
For Appellant: David D. Dowd.

For Appellee: Thomas C. Newman.

Punzalan v. Holder, No. 08-2277

Petition for review of a final order of removal denying plaintiff's second motion to reopen is denied where the Board of Immigration Appeals' determination that the plaintiff failed to meet his burden under Lozada of providing sufficient detail of his counsel's alleged ineffectiveness was not arbitrary or capricious, as the evidence plaintiff submitted for the purpose of establishing the claimed ineffectiveness did not describe the terms according to which the work was to be performed or how former counsel's performance of the work was ineffective.    

Read Punzalan v. Holder, No. 08-2277

Appellate Information
On Petition for Review of an Order of the Board of Immigration Appeals.
Decided August 5, 2009

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

Counsel
For Petitioner: Lisa D. Dubowski and ASK Law Group.

For Respondent: Tim Ramnitz, Michael F. Hertz, and Shelley R. Goad, U.S. Department of Justice.

Interface Partners International Ltd. v. Hananel, No. 08-1983

In a breach of contract action, district court's grant of defendant's motion to dismiss on forum non conveniens grounds is affirmed where: 1) the court did not err in finding plaintiff's choice of its home forum to be undeserving of heightened deference; 2) the court properly found that Israel is an adequate alternative forum as its courts address the sort of breach of contract claim asserted in this case and defendant is an Israeli citizen amenable to service there; and 3) the court did not abuse its discretion in applying the public and private interest factors and reasonably concluding that they strongly favored Israel as the more convenient and judicially efficient forum.    

Read Interface Partners International Ltd. v. Hananel, No. 08-1983


Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided August 5, 2009

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

Counsel
For Appellant: Andrew H. Schapiro.

For Appellee: Lawrence G. Green.

US v. Stone, No. 08-1459

Sentence for knowingly transporting and shipping child pornography in interstate or foreign commerce is affirmed where: 1) the district court did not commit procedural error in sentencing defendant as the record shows the court understood its discretion under Kimbrough and chose not to use its Kimbrough power in sentencing defendant; and 2) defendant's sentence is not unreasonable as it is based on a plausible rationale and represents a defensible result.    

Read US v. Stone, No. 08-1459

Appellate Information
Appeal from the United States District Court for the District of Maine.
Decided August 5, 2009

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

Counsel
For Appellant: Charles W. Rankin.

For Appellee: Mysti Dawn Degani.

Ecker v. US, No. 08-1508

District court judgment ordering that plaintiff be conditionally released from federal custody and transferred to the custody of the Commonwealth of Massachusetts for continued mental health care and treatment is affirmed where: 1) the court properly denied the government's motion to retransfer this matter to another district court as it would be irresponsible to prolong plaintiff's stay in legal limbo by re-transferring the matter to where it came from more than seven years ago; and 2) the court properly declined to proceed under 18 U.S.C. sec. 4246(g) as plaintiff does not meet its requirements. The matter is remanded for the district court to clarify for all parties the precise process, requirements, and consequences of plaintiff's conditional release under 18 U.S.C. sec. 4246(e).     

Read Ecker v. US, No. 08-1508 

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided August 3, 2009

Judges
Before: Torruella, Stahl, and Howard, Circuit Judges.
Opinion by Stahl, Circuit Judge.

Counsel
For Appellant:  Kirby A. Heller, U.S. Department of Justice.

For Appellee:  Neil T. Smith, by Appointment of the Court.

Taylor v. Airco, Inc., No. 07-2422

In a wrongful death action, district court judgment is affirmed where: 1) plaintiff's employer was a sophisticated user of defendants' products, and defendants owed plaintiff no duty to warn about the dangers of their products; 2) plaintiff's fraud claim fails as the record contains no evidence from which a reasonable jury could conclude that defendants' were responsible for the allegedly false or misleading representations in a safety data sheet; and 3) plaintiff's civil conspiracy claim failed as a reasonable jury could not conclude that conspiring defendants substantially assisted plaintiff's employer in defrauding him.   

Read Taylor v. Airco, Inc., No. 07-2422

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided August 3, 2009

Judges
Before: Boudin, Lipez, and Howard, Circuit Judges.
Opinion by Lipez, Circuit Judge.

Counsel
For Appellant: Ronald Simon, Simon & Associates, Herschel L. Hobson, The Law Office of Herschel L. Hobson, Peter B. Sessa, and Sessa, Glick & Quiroga LLP.

For Appellee:  Timothy J. Coughlin, Heidi B. Goldstein, Andrea B. Daloia, Thompson Hine LLP, Richard L. Neumeier, Mark S. Granger, and Morrison Mahoney LLP.

Nagle v. Acton-Boxborough Regional Sch. Dist., No. 08-2374

In an employment termination action brought under the Family Medical Leave Act, district court judgment is affirmed where equitable estoppel may not be applied against a government employer based upon the employer's alleged oral assurances to the employee of coverage under the Act, as plaintiff had no right to FMLA leave under the statute because she did not work the requisite number of hours.      

Read Nagle v. Acton-Boxborough Regional Sch. Dist., No. 08-2374

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided July 30, 2009

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

Counsel
For Appellant: Jason R. Powalisz, Mark A. Hickernell, Alan J. McDonald and McDonald, Lamond & Canzoneri.

For Appellee:  Deidre Brennan Regan, Deborah I. Ecker and Brody, Hardoon, Perkins & Kesten.

US v. Orrego-Martinez, No. 05-2059

Conviction and sentence for the introduction of adulterated devices and non-approved new drugs into interstate commerce with intent to defraud and mislead is affirmed where: 1) issue preclusion did not bar evidence that defrauding of customers occurred; 2) the district court properly denied a motion for acquittal as he relied on new evidence rather than the evidence presented at trial and his attempt to incorporate by reference arguments made in his motion for a new trial is forfeited; 3) defendant's challenge to a witness' testimony is without merit; 4) the court did not err in its instructions to the jury; 5) defendant's sentence was not based on improper factors, and was reasonable; and 6) the court properly denied defendant's motion for a new trial.      

Read US v. Orrego-Martinez, No. 05-2059

Appellate Information
Appeal from the United States District Court for the District of Puerto Rico
Decided July 30, 2009

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

Counsel
For Appellant: Carlos Orrego-Martinez, Pro Se.

For Appellee: Nelson Pérez-Sosa, Assistant U.S. Attorney, Thomas F. Klumper, Assistant U.S. Attorney, and Rosa Emilia Rodríguez-Vélez.