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

Chiang v. Skeirik, No. 08-2105

District court's dismissal of plaintiff's amended complaint arising from denial of his petition for a fiancee visa is affirmed where: 1) district court did not err in dismissing plaintiff's claim that his visa was improperly denied as he has failed to state a plausible entitlement to relief; 2) district court did not err in dismissing plaintiff's Bivens claims as he failed to name any officers in their individual capacities in the first amended complaint and a Bivens claim does not lie against the United States; and 3) district court did not abuse its discretion in denying plaintiff's motion to file a second amended complaint as it would have been futile.   

Read Chiang v. Skeirik, No. 08-2105 

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided September 28, 2009

Judges

Before:  Boudin, Seyla, and Dyk, Circuit Judges 

Opinion by  Dyk, Circuit Judge

Counsel

For Appellant:  Dean Carnahan

For Appellee:  Anton P. Giedt, Assistant United States Attorney, Michael J. Sullivan, United States Attorney

Young v. Johnson & Johnson, No. 08-1002

In a class action lawsuit against pharmaceutical companies claiming that they unfairly and deceptively inflate the drugs' average wholesale prices (AWPs), district court's judgment dismissing Class 1 plainitffs' claims is vacated and remanded as there is a lack of clear understanding of both the scope of the district court's judgment and the reasons for the judgment.   

Read Young v. Johnson & Johnson, No. 08-1002

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided September 28, 2009

Judges

Before:  Howard, Circuit Judge, Zobel, and Lisi, District Judges

Opinion by Howard, Circuit Judge

Counsel

For Appellant:  Steve W. Berman, Sean R. Matt, Hagens Berman Sobol Shapiro LLP, Jeffrey Kodroff, John A. Macoretta, Spector, Roseman & Kodroff, P.C., Marc H. Edelson, Hoffman & Edelson, Thomas M. Sobol, Edward Notargiacomo, Kenneth A. Wexler, Jennifer Fountain Connolly

For Appellee:  Andrew D. Schau, William F. Cavanaugh, Jr., Erik Haas, Adeel A. Mangi and Patterson Belknap Webb & Tyler LLP

US v. Cabrera-Rivera, No. 08-1702

District court's conviction of defendant for crimes related to the robbery of an armored truck in Puerto Rico is vacated and remanded where, although the government established the required nexus to interstate commerce under the Hobbs Act, 18 U.S.C. section 1951(a), defendant's Confrontation Clause rights were violated by the admission of hearsay evidence.   

Read US v. Cabrera-Rivera, No. 08-1702

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided September 25, 2009

Judges

Before:  Torruella, Seyla, and Dyk, Circuit Judges 

Opinion by  Dyk, Circuit Judge

Counsel

For Appellant: Dean Stowers 

For Appellee:  Julia M. Meconiates, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney.

US v. Troy, No. 08-2002

District court's conviction of defendant for assaulting a federal officer in violation of 18 U.S.C. section 111(a) is affirmed as a rational factfinder could have concluded beyond a reasonable doubt that the officer was acting within the scope of her official duties for the purposes of the statute.     

Read US v. Troy, No. 08-2002

Appellate Information

Appeal from the United States District Court for the District of Maine

Decided September 25, 2009

Judges

Before:  Howard, Seyla, and Ripple, Circuit Judges

Opinion by Howard, Circuit Judge

Counsel

For Appellant:  Richard L. Hartley, Law Office of Richard Hartley.

For Appellee:  Renèe M. Bunker, Assistant United States Attorney, Paul D. Silsby, United States Attorney

District court's judgment of liability for unfair and deceptive business practices in violation of Massachusetts General Laws Chapter 93A against the pharmaceutical-defendant is affirmed as evidence supported a finding that defendant unfairly and deceptively published an artificial average wholesale price for a prostate cancer drug that gave no indication of the actual, substantial discounts and rebates it was providing in the market. Accordingly, the district court made the rulings without committing material legal error, abusing its discretionary power, or making clear errors in its fact finding.     

Read Blue Cross Blue Shield of Massachusetts v. AstraZeneca Pharm., No. 08-1056

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided September 23, 2009

Judges

Before:  Howard, Circuit Judgee, and Zobel and Lisi, District Judges.   

Opinion by Howard, Circuit Judge

Counsel

For Appellant:  Mark E. HaddadNitin Reddy, Carter G. Phillips, Sidley Austin LLP; D. Scott Wise, Michael S. Flynn, Kimberley D. Harris, Davis Polk & Wardwell; Donald R. Ware, Sarah Cooleybeck and Foley Hoag LLP, were on brief for appellant.

Steve W. Berman, Sean R. Matt, Hagens Berman Sobol Shapiro LLP; Jeffrey Kodroff, John A. Macoretta, Spector, Roseman & Kodroff, P.C.; Marc H. Edelson, Hoffman & Edelson; Thomas M. Sobol, Edward Notargiacomo, Hagens Berman Sobol Shapiro LLP; Kenneth A. Wexler, Jennifer Fountain Connolly of Wexler Toriseva Wallace LLP; were on brief for appellants.

For Appellee:  Gregory G. Katsas, Assistant Attorney General, Michael J. Sullivan, United States Attorney, Michael S. Raab and Eric Fleisig-Greene, Attorneys, Appellate Staff, Civil Division, United States Department of Justice,

US v. Wright, No. 08-1063

District court's denial of defendant's motion to suppress a gun involving a Terry stop is affirmed as the totality of the circumstances supports the district court's conclusion that officers had reasonable suspicion to stop defendant.   

Read US v. Wright, No. 08-1063

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided September 23, 2009

Judges

Before:  TorruellaLipez, and Howard, Circuit Judges

Opinion by Torruella, Circuit Judge

Counsel

For Appellant:   Charles W. RankinMichelle Menken of Rankin & Sultan

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

Kholi v. Wall, No. 08-1159

In habeas proceedings district court's dismissal of the petition as time-barred is reversed and remanded as a state post-conviction motion to reduce an imposed sentence that seeks purely discretionary leniency and does not challenge the validity of the conviction or sentence acts as a tolling mechanism within the purview of 28 U.S.C section 2244(d)(2), and thus, defendant's habeas petition was timely filed and improvidently dismissed.     

Read Kholi v. Wall, No. 08-1159

Appellate Information

Appeal from the United States District Court for the District of Rhode Island

Decided September 23, 2009

Judges

Before:  Torruella, Seyla, and Dyk, Circuit Judges.   

Opinion by Seyla, Circuit Judge

Counsel

For Appellant:  Judith H. Mizner, Assistant Federal Public Defender

For Appellee:  Christopher R. Bush, Special Assistant Attorney General, with whom Patrick C. Lynch, Attorney General

Sihombing v. Holder, No. 08-2119

A final order of the BIA denying Indonesian national's request for withholding of removal on the basis of political asylum is affirmed as petitioner failed to establish past persecution in Indonesia or a clear probability of future persecution. Petitioner's claim of a due process violation resulting from insufficient transcription also fails as he did not establish that it created prejudice.      

Read Sihombing v. Holder, No. 08-2119

Appellate Information

On Petition For Review Of An Order Of The Board Of Immigration Appeals

Decided September 22, 2009

Judges

Before:  TorruellaBoudin, and Dyk, Circuit Judges.   

Opinion by Torruella, Circuit Judge

Counsel

For Appellant:  William A. Hahn and Hahn & Matkov 

For Appellee:  Terri J. Scadron, Assistant Director, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, and Tony West, Assistant Attorney General, Civil Division 

Clarke v. Spencer, No. 08-2476

Petition for habeas relief by a defendant convicted of kidnapping and rape is denied where: 1) the prosecutor's questions did not directly or indirectly suggest that defendant might have invoked his right to remain silent; 2) defendant's double-jeopardy claim fails on its merits, and thus, his trial attorney was not constitutionally deficient in failing to raise the issue nor did the failure prejudice defendant; and 3) defendant failed to establish that habeas relief is warranted under his collateral-estoppel claim.       

Read Clarke v. Spencer, No. 08-2476

Appellate Information

On Appeal from the United States District Court for the District of Massachusetts

Decided September 22, 2009

Judges

Before: Lynch, Chief Judge,  Torruella, and Ebel, Circuit Judges.   

Opinion Ebel, Circuit Judge

Counsel

For Appellant: Victoria L. Nadel

For Appellee:  Susanne G. Reardon, Assistant Attorney General, Martha Coakley, Attorney General

Sutliffe v. Epping Sch. Dist., No. 08-2587

In plaintiffs' section 1983 suit against various town and school officials alleging that defendants advocated for approval of budgets and spending through various channels of communication media while denying plaintiffs access to the same communication channels, the district court's judgment is affirmed where: 1) district court correctly concluded that the three added plaintiffs in the amended complaint lacked standing as they could not show any actual or imminent injury; 2) district court did not err in dismissing plaintiffs' claims besides those pertaining to the town website and the 2006 annual report on res judicata grounds based on the earlier state court action; and 3) district court's grant of summary judgment to the defendants on plaintiffs' town website free speech claim is affirmed but on the ground that the claim fails because the town defendants' actions in setting up and controlling a town website and choosing not to allow certain hyperlinks constituted government speech. 

Read Sutliffe v. Epping Sch. Dist., No. 08-2587

Appellate Information

On Appeal from the United States District Court for the District of New Hampshire

Decided September 17, 2009

Judges

Before: Lynch, Chief Judge,  Torruella, and Ebel, Circuit Judges.   

Opinion by Lynch, Chief Judge 

Counsel

For Appellant: Benjamin T. King and Charles G. Douglas, III, Douglas, Leonard & Garvey PC

For Appellee:  John T. Alexander, Daniel J. Mullen and Ransmeier & Spellman, PC were on brief for Town appellees.

Diane M. Gorrow, Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C. was on brief for school appellees.

Fideicomiso de la Tierra Del Cano Martin Pena v. Fortuno, No. 09-1911

Plaintiff's appeal from orders of the district court denying its motion for a TRO and a subsequent urgent motion for relief related to issuance of TRO is dismissed for want of appellate jurisdiction as the denial does not have the practical effect of refusing an injunction. Plaintiff's request of writ of mandamus to require the district court to decide the motion for a preliminary injunction is denied as the present record does not justify such extraordinary relief. 

Read Fideicomiso de la Tierra Del Cano Martin Pena v. Fortuno, No. 09-1911

Appellate Information

On Appeal from the United States District Court for the District of Puerto Rico

Decided September 18, 2009

Judges

Before: Torruella, Ripple, and Boudin, Circuit Judges.   

Per Curium Opinion 

Counsel

For Appellant: Judith Berkan, Mary Jo Méndez, Berkan/Méndez, and Pedro J. Saadé, of the Clínica de Asistencia Legal de la Escuela de Derecho de la Universidad de Puerto Rico.

For Appellee:   Eliezer Aldarondo-Ortiz, Aldarondo & López Bras, Eliezer A. Aldarondo, Claudio Aliff-Ortiz, Michael C. McCall, Mercado & Soto Law Offices, and Francisco J. Amundaray, were on brief for appellees the Municipality of San Juan and Mayor Jorge Santini.

Carlos E. Cardona-Fernández, M & C Consultores Jurídicos, CSP, was on brief for appellee Administración de Terrenos.

Maymí, Rivera & Rotger, P.S.C. and Ángel Rotger Sabat, on brief for appellees Luis G. Fortuño and Antonio M. Sagardía-De Jesús.

US v. Gonzalez-Colon, No. 08-1024

Appeal of defendants' sentences for conspiring to distribute a controlled substance is dismissed as each defendant signed a valid and enforceable waiver of their rights to appeal their sentences in their respective plea agreement under the standard set forth in US v. Teeter, 257 F.3d 14 (1st Cir. 2001).    

Read US v. Gonzalez-Colon, No. 08-1024

Appellate Information

On Appeal from the United States District Court for the District of Puerto Rico

Decided September 14, 2009

Judges

Before: Torruella, Seyla, and Tashima, Circuit Judges.   

Opinion by Tashima, Senior Circuit Judge 

Counsel

For Appellant: Linda A. Backiel, Michael Raymond Hasse  

For Appellee:  Thomas F. Klumper, Assistant United States Attorney, Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Perez-Sosa, Assistant United States Attorney, Chief Appellate Division. 

US v. Bucci, No. 07-2376

Defendant's sentence, a forfeiture order and convictions for drug trafficking and related crimes is affirmed where: 1) district court did not abuse its discretion in denying defendant discovery in support of his vindictive-prosecution claim; 2) a second superseding indictment was timely filed as defendant did not "engage" in a monetary transaction until the funds were deposited into his account; 3) defendant had no reasonable objective expectation of privacy in the front of his home; 4) officers had probable cause to believe there was evidence of criminal activity in defendant's vehicle to conduct a search; 5) district court did not abuse its discretion in allowing the government a rebuttal opening statement; 6) district court's imposition of enhancement did not violate defendant's Sixth Amendment rights where the court was aware of its discretion to impose a below-guideline sentence and adequately considered defendant's argument for a below-guideline sentence; and 7) district court did not plainly err in instructing the jury that "proceeds" meant "gross proceeds" for forfeiture purposes.     

Read US v. Bucci, No. 07-2376

Appellate Information

On Appeal from the United States District Court for the District of Massachusetts

Decided September 11, 2009

Judges

Before: Ebel, Seyla, and Howard, Circuit Judges.   

Opinion by Ebel, Circuit Judge 

Counsel

For Appellant:  Kimberly Homan

For Appellee:  Sangita K. Rao, Attorney, Criminal Division, Appellate Section, United States Department of Justice, Michael J. Sullivan, United States Attorney, and Peter K. Levitt, Assistant United States Attorney.

Kartasheva v. Holder, No. 08-2243

Petition for review of BIA's denial for asylum and related relief is granted, and the ruling is vacated and remanded where the court finds lacking an itemization of the substantial evidence necessary for an adverse credibility determination, and because the Board limited its reasoning to the adverse credibility finding and did not discuss petitioner's eligibility for relief, the case is remanded to the agency to make a well-reasoned and well-explained determination of petitioner's eligibility.     

Read Kartasheva v. Holder, No. 08-2243

Appellate Information

On Petition For Review Of An Order Of The Board Of Immigration Appeals

Decided September 11, 2009

Judges

Before:  Boudin, Seyla, and Stahl, Circuit Judges.   

Opinion:  Stahl, Circuit Judge 

Counsel

For Appellant:  Gary J. Yerman

For Appellee:  Tracie N. Jones, Michael F. Hertz, Acting Assistant Attorney General, and Michelle Gorden Latour, Assistant Director.

US v. Piza-Blondet, No. 08-2263

In condemnation proceedings involving a 34 acre parcel used by the Federal Aviation Administration for aircraft navigation, the district court's judgment is affirmed where the district court: 1) did not abuse its discretion in excluding defendant's own testimony when the court had excluded similar testimony by defendant's expert; 2) did not err in holding that the "before and after" method was appropriate in valuing the property, assuming a partial taking; and 3) did not err in submitting to the jury unity of use. Defendant's remaining contentions were without merit.       

Read US v. Piza-Blondet, No. 08-2263 

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided September 11, 2009

Judges

Before:  Boudin, Seyla, and Dyk, Circuit Judges.   
Opinion: Dyk, Circuit Judge 

Counsel

For Appellant:  Paul E. Harrison, Francisco Diez and J. Wayne Mumphrey.

For Appellee:  Aaron P. Avila, Attorney, U.S. Dep't of Justice, John C. Cruden, Acting Assistant Attorney General and Jeffrey M. Tapick, Attorney, U.S. Dep't of Justice.

Caal-Tiul v. Holder, No. 08-2464

Guatemalan national's petition for review a BIA's decision reversing the Immigration Judge's granting of asylum is denied where the petitioner failed to establish a well-founded fear of persecution on account of a protected ground and the standard of BIA review makes no difference because there is no evidence that a gang was in any way motivated by petitioner's status as an indigenous female. 

Read Caal-Tiul v. Holder, No. 08-2464

Appellate Information

On Petition For Review Of An Order Of The Board Of Immigration

Decided September 10, 2009

Judges

Before:  Boudin, Seyla, and Howard, Circuit Judges.   
Per Curium Opinion 

Counsel

For Appellant:  Lidia M. Sanchez 

For Appellee:  Katharine E. Clark, Department of Justice, Civil Division, Office of Immigration Litigation, Tony West, Assistant Attorney General, Civil Division, and Barry J. Pettinato, Assistant Director.

Lumataw v. Holder, No. 08-1757

Petition for review of a decision by the BIA denying Indonesian petitioner's application for asylum and related relief is granted and remanded where the IJ and BIA committed prejudicial legal error in faulting the petitioner for untimely filing without recognizing either the absence of a filing deadline for the first few years of the period or the undisputed record fact of petitioner's inclusion in his wife's January 2003 asylum application, and as such, it cannot be concluded that the legal errors were harmless.     

Read Lumataw v. Holder, No. 08-1757

Appellate Information

On Petition For Review Of An Order Of The Board Of Immigration

Decided September 9, 2009

Judges

Before Torruella,   Lipez, Circuit Judges, and Tashima, Of the Ninth Circuit, sitting by designation.    
Opinion by Torruella, Circuit Judge.

Counsel

For Appellant: William A. Hahn and Hahn & Matkov

For Appellee:   Janice K. Redfern, Senior Litigation Counsel, Office of Immigration Litigation, Michael F. Hertz, Acting Assistant Attorney General, and Linda S. Wernery, Assistant Director

Wojciechowicz v. US, No. 08-2454

In plaintiffs' wrongful death lawsuit against the United States under the Federal Tort Claims Act (FTCA) arising from a deadly small plane crash, the district court's judgment in favor of the United States is affirmed where: 1) given the lack of mandatory language in paragraph 5-5-9 of the FAA Air Traffic Control Manual (ATCM) on the issue of when to maintain the separation, the district court correctly understood the question posed by plaintiffs as one of what a reasonable controller would have done on these particular facts; 2) the court's finding that the controller acted as a reasonable controller was not clear error; 3) plaintiffs failed to show clear error in court's finding that, even if the defendant had owed and breached a duty under paragraph 5-5-9, there was no causal connection between any breach by him and the accident, or in the court's finding that the accident was not foreseeable to the controller; and 4) district court did not clearly err in rejecting plaintiffs' argument that the controller should have known the aircraft was in unsafe proximity to the terrain.    

Read Wojciechowicz v. US, No. 08-2454

Appellate Information

Appeal from the United State District Court for the District of Puerto Rico

Decided September 9, 2009

Judges

Before Lynch, Chief Judge, Lipez, Circuit Judge, and Ebel Of the Tenth Circuit, sitting by designation.    
Opinion by Lynch, Chief Judge.

Counsel

For Appellant:  Louis R. Martinez, Richard Ritorto, Martinez & Ritorto, PC, Jaime E. Morales, Morales-Morales Law Offices, Franklin F. Bass, Locke Lord Bissell & Liddell LLP, Doris Quinones Tridas, and Quinones Tridas Law Office, PSC

For Appellee:   Henry B. Goddard, Jr., Trial Attorney, U.S. Department of Justice, Torts Branch, with whom Michael F. Hertz, Acting Assistant Attorney General, Rosa Emilia Rodriguez-Velez, United States Attorney, Andrew M. Eschen, Trial Attorney, and Sarah S. Keast, Trial Attorney

US v. Cirilo-Munoz, No. 08-1830

District court did not err or abuse its discretion in imposing the statutory mandatory minimum sentence, and defendant's request that the statute be declared unconstitutional as applied to him is rejected, as he has not supplied any supporting argument and did not present a constitutionally based argument in the district court. 

Read US v. Cirilo-Munoz, No. 08-1830

Appellate Information

Appeal from the United State District Court for the District of Puerto Rico

Decided September 4, 2009

Judges

Before Torruella,  Stahl, and Lipez, Circuit Judges.    
Per Curium Opinion.

Counsel

For Appellant: Rafael Anglada-López

For Appellee:   Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M. Meconiates, Assistant U.S. Attorney, and Rosa Emilia Rodriguez-Velez, United States Attorney

Alvarez-Torres v. Ryder Mem'l Hosp., Inc., No. 08-2351

In plaintiff's action against a hospital and several physicians alleging violation of the Emergency Medical Treatment and Active Labor Act (EMTALA), district court's granting of defendants' motion for summary judgment is affirmed where: 1) plaintiffs failed to establish a violation of the EMTALA stabilization provision, as interpreting the provision to apply where transfer occurs is fully consistent with EMTALA's statutory purpose; 2) district court was entitled to dismiss plaintiffs' state law claims against defendants without prejudice which plainly includes state-law claims against the individual physicians; and 3) district court did not err in dismissing state-law claims brought by plaintiff Taveras, a citizen of Germany, on basis of diversity of jurisdiction as several of the plaintiffs and the defendants are citizens pf Puerto Rico. 

Read Alvarez-Torres v. Ryder Mem'l Hosp., Inc., No. 08-2351

Appellate Information

Appeal from the United State District Court for the District of Puerto Rico

Decided September 4, 2009

Judges

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

Counsel

For Appellant: Jose Luis Ubarri

For Appellee:  Teresa M. Garcia-Moll

Nat'l Ass'n of Chain Drug Stores v. First DataBank, Inc., No. 09-1577

On appeal from class action settlements involving actions brought by purchasers of pharmaceutical drugs against publishers of drug pricing data, the judgment of the district court is affirmed where: 1) there is no apparent reason to allow participation as an appellant by one who is neither a class member nor sought to intervene in the district court and here, the proposed settlement was widely known in the industry, the pharmacy interests are amply represented on appeal and it is hard to see what would be added by further parties; 2) district court's judgment does not operate against non-party pharmacies so as to violate their due process rights or offend FRCP Rule 19 as the district court's management of the case, its insistence on a revised settlement and multiple hearings have given the pharmacy interests a lengthy period to prepare for the rollback; and 3) the district court permissibly found that the settlements were fair, reasonable, and adequate. 

Read Nat'l Ass'n of Chain Drug Stores v. First DataBank, Inc., No. 09-1577

Appellate Information

Appeal from the United State District Court for the District of Massachusetts

Decided September 3, 2009

Judges

Before Boudin, and Seyla, Circuit Judges, and Dyk, of the Federal Circuit.    
Opinion by Boudin, Circuit Judge.

Counsel

For Appellant: Daniel S. Savrin, Francesca Lucia Miceli, Angela J. Neal and Bingham McCutchen LLP, David J. Farber, Edward D. Gehres, III and Patton Boggs LLP, David A. Balto, 

For Appellee:  Sheila L. Birnbaum, Thomas E. Fox, Mathew J. Matule, Nicholas I. Leitzes and Skadden, Arps, Slate, Meagher & Flom LLP,  Thomas M. Sobol, Steve W. Berman, Sean R. Matt, Nicholas Styant-Browne, Barbara A. Mahoney, Hagens Berman Sobol Shapiro LLP, Kenneth A. Wexler, Jennifer Fountain Connolly, Wexler Wallace LLP, Jeffrey Kodroff, John Macoretta, George E. Barrett, Edmund L. Carey Jr., and Barrett, Johnston & Parsely.

US v. Bunchan, No. 08-1022

Conviction of defendant of multiple crimes related to his pyramid scheme is affirmed where:  1) district court did not abuse its discretion in restricting impeachment of a government witness; 2) district court did not abuse its discretion in imposing a thirty five year term of imprisonment, two years of supervised release, and restitution in the amount of $19,103,121.73.     

Read US v. Bunchan, No. 08-1022

Appellate Information

Appeal from the United State District Court for the District of Massachusetts

Decided September 2, 2009

Judges

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

Counsel

For Appellant: James M. Fox

For Appellee:  Jack W. Pirozzolo, Assistant United States Attorney, and Michael J. Sullivan, United States Attorney

US v. Isom, No. 08-1263

District court's conviction of defendant for possession and distribution of crack cocaine is affirmed where: 1) the appeal-waiver provision of defendant's plea agreement does not bar an appeal challenging the validity of his guilty plea; but 2) a denial of defendant's motion to withdraw his guilty plea is affirmed on the merits.   

Read US v. Isom, No. 08-1263

Appellate Information

Appeal from the United State District Court for the District of Rhode Island
Decided September 2, 2009

Judges

Before Boudin, Howard, and Tashima, of the Ninth Circuit, sitting by designation.     
Opinion by Howard, Circuit Judge.

Counsel

For Appellant: Todd A. Bussert

For Appellee:  Donald C. Lockhart, Assistant United States Attorney with whom Robert Clark Corrente, United States Attorney, Kenneth P. Madden, and Sandra R. Hebert, Assistant United States Attorneys

Decaro v. Hasbro, Inc., No. 09-1054

In an employment discrimination and breach of contract case, district court's judgment is affirmed where: 1) district court did not err in jury instructions with respect to SSDI as receipt of SSDI benefits creates a rebuttable presumption that the employee cannot perform the essential functions of the job; 2) district court did not err in the accommodation instruction as in this case, an employer's duty to accommodate does not arise unless the employee is able to perform the essential functions of his job with an accommodation; and 3) district court did not commit procedural error as plaintiff failed to contemporaneously object when the district court implemented the challenged procedure, and under the 2003 amendments to FRCP 51 the district court is under no obligation to give the parties the full text of its intended instructions at any time before the jury is charged.       

Read Decaro v. Hasbro, Inc., No. 09-1054

Appellate Information

Appeal from the United State District Court for the District of Massachusetts
Decided September 2, 2009

Judges

Before Boudin and Seyla, Circuit Judges, and Dyk, of the Federal Circuit, sitting by designation.   
Opinion by Seyla, Circuit Judge.

Counsel

For Appellant: Tani E. Sapirstein , of Sapirstein & Sapirstein, P.C.

For Appellee:  Neil Jacobs, Harry T. Daniels, Shari G. Kleiner, Tina Marisam, and Wilmer Cutler Pickering Hale and Dorr, LLP

Faye v. Holder, No. 09-1229

Petition for review of the Board of Immigration Appeal's denial of Senegalese petitioner's application for asylum and other related relief is denied where: 1) substantial evidence supports the BIA's conclusion that petitioner failed to show her proposed group is socially visible and sufficiently particular; 2) petitioner presented no evidence to support her claim of persecution because of her religious beliefs; 3) petitioner failed to prove that the Senegalese government would torture her or permit her to be tortured if she were to return.   

Read Faye v. Holder, No. 09-1229

Appellate Information

On Petition for Review of an Order of the Board of Immigration Appeals
Decided September 2, 2009

Judges

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

Counsel

For Appellant: David L. Yavner  

For Appellee: John D. Williams, Trial Attorney, Office of Immigration Litigation, Tony West, Assistant Attorney General, Civil Division, and Russell J. E. Verby, Senior Litigation Counsel, Office of Immigration Litigation  

US v. Burnett, No. 08-1224

Conviction of a defendant for conspiring to distribute illegal drugs and other drug-related charges is affirmed where: 1) the district court did not abuse its discretion in admitting testimony of a witness regarding defendant carrying a baggy, as it tended to make the evidence of the fact that defendant was involved in a conspiracy to distribute cocaine more probable than if the evidence had not been admitted; 2) the district court did not commit plain error in admitting witness testimony regarding threats by the defendant as its probative value was not substantially outweighed by danger of unfair prejudice. Considering the cumulative effect of the claimed evidentiary rulings, defendant received a fair trial and his arguments in his pro se brief were meritless for both procedural and substantive reasons.      

Read US v. Burnett, No. 08-1224

Appellate Information

Appeal from the United State District Court for the District of New Hampshire
Decided September 1, 2009

Judges

Before Boudin, and Lipez, Circuit Judges, and Hansen, of the Eighth Circuit, sitting by designation.     
Opinion by Hansen, Circuit Judge.

Counsel

For Appellants:  Royston H. Delaney, Robert M. Thomas, Jr.

For Appellee:  Aixa Maldonado-Quiñones, Thomas P. Colantuono, United States Attorney