U.S. First Circuit: April 2010 Archives
U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog

April 2010 Archives

In re Hundley, No. 09-1899, concerned a dispute over ownership of a tax refund between a non-debtor spouse and the trustee of husband's bankruptcy estate, involving a question of whether a non-debtor spouse is entitled to a portion of a pre-petition tax refund, where the couple filed a joint return and the non-debtor spouse earned no income for the tax year for which the return was filed.  However, because there is no controlling statute or precedents on the issue, the matter is certified to the Massachusetts Supreme Court. 

Nicolson v. Pappalardo, No. 10-1125, involved a father's petition seeking return of his daughter to Australia, claiming under the Hague Convention that the child's mother had wrongfully retained the child in the U.S.  In affirming the district court's judgment in favor of the father, the court held that there is no clear and unequivocal expression of an agreement by the father to have final custody determined in a Maine court, nor are there any convincing written renunciation of his rights to this effect. 

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Decision in Dispute Over Dial-Up Internet Traffic Access Charges

In Global NAPS, Inc. v. Verizon New England Inc., No. 09-1308, the First Circuit faced a challenge to the district court's judgment in favor of Verizon for $57,716,714 for access charges that defendant owed but failed to pay for services Verizon provided between 2003 and 2006. 

In affirming the district court's judgment, the court first resolved the jurisdictional issue by holding that 28 U.S.C. section 1367 gives federal courts supplemental jurisdiction over both compulsory and at least some permissive counterclaims, which alters the circuit's former rule, adopted before the enactment of section 1367, that required permissive counterclaims to have an independent basis for jurisdiction.

The court then went on to hold that the FCC's 2008 second remand order does not preempt or establish that the FCC's 2001 order preempted the Department of Telecommunications and Energy's authority to impose rates for inter-exchange ISP traffic.  Because section 1367 gives federal courts supplemental jurisdiction over permissive counterclaims, district court's judgment for Verizon on its counterclaims to enforce the interconnection agreements and alter ego liability and disregard of corporate form claim was proper. 

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Dismissal of Takings Clause Claim Ordered

In Fideicomiso de la Tierra del Cano Martin Pena v. Fortuno, No. 09-2569, the Fourth Circuit dealt with plaintiff's Takings Clause claim, challenging a legislative amendment revoking the transfer of public agencies' lands to plaintiff and mandating return of the lands to public ownership through agencies of the Commonwealth and municipalities.

As stated in the decision: "Public policy disagreements about the best of several rational means to accomplish legitimate public purposes are not the grist of a Takings Clause claim.  When the legislature's purpose is legitimate and its means are not irrational, empirical debates over the wisdom of takings are not to be carried out in the federal courts."

Thus, the court dismissed the suit in concluding that a federal court cannot conclude Law 32 was an illegitimate means of advancing public purpose, not least because transfers of private property to public ownership have been upheld since the founding of the country. 

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In US v. William, No. 08-2303, the First Circuit faced a challenge to a conviction for possessing marijuana and crack cocaine, arising from a brief traffic stop at a sobriety checkpoint.  The court affirmed the conviction and rejected defendant's claim that the stop was unlawful because the checkpoint's primary purpose was something other than detecting impaired drivers. 

However, defendant's sentence is vacated and remanded for resentencing as the sentencing provision applied in this case - a five-year minimum and a twenty-year maximum - required not only more than three grams of crack cocaine, but also a prior conviction under 21 U.S.C. section 844(a).  Here, defendant's prior conviction was for a state drug offense and does not meet the requirements of section 844(a) for a sentence above two years. 

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Denial of Debtor's Motion to Discharge Based on Embezzlement

In Re: Sherman, No. 09-1572, involved a challenge to the bankruptcy court's denial of discharge of the $983,000 debt based on its finding that the debtor appropriated the victims' property for his own benefit with fraudulent intent, thus finding the elements necessary to hold the debtor responsible as an embezzler. 

As stated in the decision: "Young is helpful again, in its example of embezzlement by using entrusted money for the recipient's own purposes in a way he knows the entrustor did not intent or authorize.  It is knowledge that the use is devoid of authorization, scienter for short, that makes the conversion fraudulent and thus embezzlement, and it is just this knowledge that the bankruptcy court found that Sherman had as a participant in the conversion."

Thus, while conceding that the bankruptcy judge did not make an express finding that debtor knew the action being taken was unauthorized, the court held that the bankruptcy judge's conclusion leaves no doubt that the judge did so find. 

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Estate of Hevia v. Portrio Corp., No. 09-1096, involved a plaintiffs' suit alleging that defendants infringed a copyright on architectural plans created by the deceased.  Because the district court did not err in granting summary judgment in favor of the defendants on the copyright claim, the judgment is affirmed.  However, defendants' argument that the district court should have exercised its inherent powers to assess attorneys' fees and costs against the plaintiffs is rejected. 

In Haddad Motor Group, Inc. v. Karp Ackerman Skabowski & Hogan, PC, No. 06-2206, the First Circuit dealt with a car dealership's suit against its former accounting firm and one of its partners alleging that the firm's negligent tax advice caused plaintiff to incur unnecessary penalties and interest.  In rejecting defendant's various claims, the district court's judgment was affirmed in its entirety, including its fact-finding underlying the Chapter 93A verdict and the treble damage award. 

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Decisions in Immigration, Civil Rights, and Criminal Matters

Mendez-Barrera, No. 09-1903, concerned a petition for review, by a native and citizen of El Salvador, BIA's denial of her application for asylum and related relief.  In denying her petition, the court held that the claim that she was persecuted on account of her membership in a particular social group fails as substantial evidence supports the BIA's determination that the putative social group was not legally cognizable.  For similar reasons, petitioner's claim for withholding of removal necessarily fails as she failed to carry her burden of persuasion for the asylum claim. Lastly, the BIA did not err in denying petitioner's CAT claim.

Anacassus v. Holder No. 09-1463, also concerned a petition for review a BIA's denial of a Haitian citizen's application for asylum and related relief.  In denying the petition, the court held that substantial evidence supports the conclusion that petitioner's only credible, alleged incident of persecution was insufficient for purposes of establishing either past persecution or a well-founded fear of future persecution if returned to Haiti. 

In US. v. Ellison, No. 09-1234, the court faced a challenge to district court's denial of defendant's motion to suppress statements made to police regarding a robbery, while being held at a county jail charged with beating his ex-girlfriend.  In rejecting defendant's Miranda claim, the court affirmed the robbery conviction and district court's denial of motion to suppress as there is nothing in the facts of the case that would be likely to create the atmosphere of coercion subject to Miranda concern. 

Foley v. Kiely, No. 09-1250, involved plaintiff's 42 U.S.C. section 1983 claim against Massachusetts State Troopers and a police sergeant claiming he was unconstitutionally seized and arrested by the state troopers.  In affirming the district court's grant of summary judgment in favor of defendants, the court concluded that the troopers did not violate plaintiff's constitutional rights in detaining and subsequently arresting him. 

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In US v. Mardirosian, No. 09-1144, the First Circuit faced a challenge to a conviction for possessing, concealing or storing six stolen paintings, including a rare Cezanne valued at $29 million.  In affirming the conviction, the court rejected defendant's claim that there was insufficient evidence to convict as the owner had given him legal title to the paintings in a 1999 agreement.  The court affirmed the district court's conclusion that the 1999 Agreement had no bearing on the "stolen" character of the paintings as the agreement was void ab initio as a contract for an illegal purpose.  Furthermore, the jury's finding that the Agreement did not provide defendant with viable mens rea defense is affirmed and the district court did not clearly err in the use of Cezanne's 1999 auction price in its calculation of loss. 

US v. Cintron-Echautegui, No. 08-1800, concerned a challenge to the district court's imposition of a 292-month sentence upon a defendant for conspiracy to distribute controlled substances.  In concluding that the district court did not clearly err in making its drug quantity determination, the court affirmed defendant's sentence. 

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Decisions in Immigration, Title VII and Asset Forfeiture Matters

Today, the First Circuit decided a Title VII discrimination and retaliation suit brought by a teacher, a petition for review of a BIA's final order and a criminal defendant's action seeking return of his property seized, without notice, following his 1991 arrest and conviction for drugs. 

Agusty-Reyes v. Dep't of Educ. of the Commonwealth of Puerto Rico, No. 09-1247, involved a math teacher's Title VII discrimination and retaliation suit against defendant arising from an on-going sexual harassment by her former supervisor that eventually led to a physical attack.  In reversing the district court's grant of defendant's motion for summary judgment, the court held that the district court erred as a reasonable jury could find that plaintiff suffered from sexual harassment amounting to a hostile work environment and also, that a reasonable jury could find that plaintiff suffered prohibited retaliation.

In US v. Flores-Rivera, No. 09-1131, the First Circuit dealt with a defendant's action seeking return of seized property without notice in an asset forfeiture action arising from his drug arrest and conviction in 1991.  After many attempts and many years by the defendant seeking return of his property, the district court ruled that his property should be returned, but at the same time, ordered that the funds be applied to his criminal fines.  In vacating the ruling, the court remanded the case to the district court with instructions to promptly conduct a hearing, follow applicable statutory procedures and provide the defendant with the long-delayed process to which he is entitled.

Mejilla-Romero v. Holder, No. 08-2336, involved a challenge to BIA's final order denying petitioner's application for asylum and related relief.  In denying the petition for review of the order, the court held that the BIA and the Immigration Judge considered all relevant evidence or record in rejecting petitioner's claims on a number of independently sufficient grounds, such as his claim of past persecution allegedly suffered while living with his grandmother in Honduras as well as his claim of future persecution on account of his resistance to gang membership.

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Remand Order Following an Order to Vacate Arbitral Award Upheld

Kashner Davidson Sec. Corp. v. Mscisz, No. 09-1356, dealt with a district court's order vacating an arbitration award and remanding the matter to the Financial Industry Regulatory Authority (FINRA), an arbitral body, following an order to vacate the original award.  Thus, the main challenge is the district court's denial of defendants  Rule 60(b) motion for relief from the order, arguing that a remand to the FINRA was inappropriate because the judgment on appeal did not mention such a remand, the district court

In affirming the district court's remand order, the court rejected the defendants' argument that the remand order contravened the mandate because it did not explicitly or implicitly prohibit the district court from remanding the matter to the FINRA.  Furthermore, in acknowledging defendants' Rule 60(b) denial as a reformulation of their argument regarding the remand order, the court held that there was no abuse of discretion in the district court's denial of the motion, but directed the district court to clarify its position on whether the arbitration should proceed before the same panel or a newly constituted panel of arbitrators

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The First Circuit decided two criminal cases today, one involving a defendant's Fourth Amendment violation claim and the other involving a defendant's Batson claim. 

US v. Fernandez, No. 09-1058, concerned a defendant's challenge to the district court's denial of his motion to suppress a gun recovered from defendant following a traffic stop, in his conviction for being a felon in possession of a firearm.  In rejecting the defendant's argument that the district court erred in failing to find that his state law and Fourth Amendment rights were violated by a police officer's inquiry into his identification, the court held that a police officer may ask identifying information from passengers in a vehicle stopped for traffic violations without particularized suspicion that the passengers pose a safety risk or are violating a law.

US v. Charlton, No. 08-1797, involved a conviction of a defendant for being a felon in possession of a firearm an given an enhanced sentence under the Armed Career Criminal Act.  Defendant's two challenges to his conviction were a Batson claim, arguing that the empanelment of the jury was tained by racial discrimination against African-Americans, and a challenge to the imposition of an enhanced sentence under the ACCA. 

In rejecting defendant's Batson claim, the court held that the district court did not commit an error in allowing the government's peremptory challenge against the juror at issue in finding that the government offered a race-neutral explanation that it did not want an attorney on the jury.  In rejecting defendant's second claim, the court held that the district court did not err in sentencing the defendant as an armed career criminal as it was bound by the Supreme Court's ruling in Almendarez-Torres v. U.S. which held that a sentencing enhancement may be grounded on prior criminal convictions neither separately charged nor proven to a jury.

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