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

May 2010 Archives

In US v. Cardosa, No. 09-1216, the First Circuit faced a challenge to the district court's denial of defendants' motions to reduce their sentences for crack cocaine related convictions.  In vacating the judgment and remanding the matter for reconsideration, the court held that where the defendant's existing sentence was ultimately determined by the old crack cocaine guidelines rather than by the career offender guideline, resentencing is within the discretion of the district court.  

Vellejo v. Santini-Padilla, No.08-2586, concerned plaintiffs' suit against the city of San Juan, Puerto Rico, its mayor, and others alleging police brutality.  In affirming the district court's dismissal of the federal and commonwealth-law claims with prejudice, as a sanction for persistent violations of scheduling orders and other discovery misconduct, the court held that plaintiffs' arguments are waived as none were timely presented to the district court and, even looking beyond the waiver, on the facts the district court did not abuse its discretion. 

US v. Al-Rikabi, No. 08-2327, concerned a challenge to the district court's imposition of a 151-month sentence after applying a managerial role enhancement to defendant's guideline sentencing range in a prosecution for conspiracy to possess crack cocaine with intent to distribute.  In vacating the sentence, the court remanded for resentencing in concluding that the adjustment is unsupported by the record.     

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Chinese Native's Petition for Review Denied

In Chi v. Holder, No. 09-2583, the First Circuit dealt with a Chinese native's petition for review of the BIA's denial of a motion to reopen to allow him to seek an adjustment of his immigration status. 

As stated in the decision: "Chi's abuse of discretion claim turns on his belief that the expiration of the ten-year bar for status adjustment presented "new and material evidence" that the BIA totally ignored.  Chi is mistaken.  Assuming for argument's sake that the ban's ending was material and not previously available "evidence," the record reveals that the BIA explicitly factored that "evidence" into its decision."

Thus, in denying the petition, the court held that the BIA acted well within its discretion in denying the motion.  Furthermore, the court held that there is no basis for a due process claim and rejected petitioner's claim that the government is equitably estopped from removing him because it failed to remove him in 1998, as well as his request that the court redraft the statutory and regulatory scheme.     

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In Dos Reis v. Holder, No. 09-2536, the First Circuit faced a challenge to an order of the BIA affirming an IJ's denial of a Brazilian petitioner's motion to reopen removal proceedings, claiming that his attorney failed to notify him of a scheduled hearing before the IJ.   

As the court wrote: "In order for an alien to be entitled to reopen removal proceedings based on lack of notice, he must show, at a bare minimum, that he did not receive notice as provided in 8 U.S.C. section 1229(a)...The plaint language of the statute indicates that notice to an alien's counsel of record constitutes notice to the alien."

Thus, the petition for review is denied as the petitioner has not shown a lack of notice sufficient, under 8 U.S.C. section 1229a(b)(5)(C)(ii), to justify reopening his removal proceedings.     

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In Gorelik v. Costin, No.09-1192, the First Circuit faced a challenge to the district court's judgment in favor of the defendants in plaintiff's 42 U.S.C. section 1983 suit against the president of the New Hampshire State Board of Medicine, arising from the Board's mischaracterization of plaintiff's temporary license as disciplinary action rather than as "Board action" and posted on the Board's website and in newsletters. 

In affirming the judgment of the district court , the court held that the issuance of plaintiff's temporary license and the posting of the newsletter labeling it a "disciplinary action" occurred eleven years before filing of the complaint, which is well outside the limitations period.  Therefore, dismissal of claims based on the mischaracterization was proper.  Also, plaintiff has failed to identify any retaliatory decision or action by the Board in response to her attempts to avail herself of administrative remedies.

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Decision Re Expert Testimony in Medical Malpractice Suit

In Pages-Ramirez v. Ramirez-Gonzalez, No. 08-1831, the First Circuit faced a challenge to the district court's grant of defendant's motion for summary judgment in plaintiffs' medical malpractice suit against an obstetrician and others claiming that the doctor caused catastrophic injuries to their son during his delivery.

As stated in the decision: "The dispositive question is not whether an expert is board certified in a particular medical specialty.  Rather, the Rules of Evidence require that the judge admit expert testimony relevant to the disposition of the case when it will assist the trier of fact in understanding a fact in issue and rests on a reliable foundation."

Thus, in reversing the decision, the court held that the district court abused its discretion when it refused to permit plaintiffs' expert to testify on the relevant standard of care and causation. 

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Decisions in Criminal and Civil Rights Matters

In Parsley v. US, No. 09-1690, the First Circuit faced a challenge to the district court's denial of defendant's motion under 28 U.S.C. section to vacate his sentenced to eighty-seven months' imprisonment in his conviction for his role in a massive drug importation and distribution conspiracy in Maine.   In affirming the conviction, the court rejected defendant's ineffective assistance claims and held that the district court's conclusion that trial counsel did not render ineffective assistance are largely uncontested and not clearly erroneous.   

Coggeshall v. Massachusetts Bd. of Registration of Psychologists, 09-1111, concerned a plaintiffs' 42 U.S.C. section 1983 suit against the Massachusetts Board of Registration of Psychologists, claiming multiple challenges to the constitutionality of the Board's actions and the regulations involving the plaintiff-psychologist's evaluation of a seven-year-old boy.  In rejecting plaintiff's claims and affirming the district court's dismissal of the action, the court held that the members of the Board, individually, are shielded from the damages claims by reason of quasi-judicial immunity.  Furthermore, the district court's dismissal on abstention ground is affirmed as this case is a paradigm for Younger abstention.  Lastly, the third party lacks standing to pursue his nonmonetary claims as he suffered no legally cognizable injury in fact as a result of the Board's actions.   

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Drug Conspiracy Case, Plus an Ex-Inmate's Section 1983 Suit

In Braga v. Hodgson, No. 08-2331, the First Circuit faced a challenge to the district court's grant of defendant's motion for summary judgment in a former inmate's 42 U.S.C. section 1983 suit against the county sheriff, alleging that the sheriff's negligent maintenance of the correctional facility caused him physical injuries and that the sheriff intentionally or with deliberate indifference denied plaintiff proper medical care.  In affirming the district court's grant of summary judgment on plaintiff's negligence and section 1983 claims, the court also held that the district court did not abuse its discretion in its entry of a protective order preventing plaintiff from deposing the sheriff.     

US v. Rosado-Perez, No. 08-1900, concerned a challenge to the convictions of four defendants, including a corrupt police officer, for their roles in a conspiracy to distribute cocaine, crack cocaine, and marijuana.  In addressing the arguments by three of the four defendants, the court affirmed their convictions as the evidence was sufficient and a government agent witness did not give improper overview testimony.  In addressing the fourth defendant's defendant's claims that he did not understand the terms of his plea, and that the district court did not ascertain that a sufficient factual basis supported his plea, the court rejected both claims as without merit.

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In US v. Gurka, No.08-2584, the First Circuit faced a challenge to the district court's denial of defendant's motion to withdraw the portion of his guilty plea pleading to gun charges related to a cocaine trafficking offense.  In affirming the conviction, the court held that the plain reading of 18 U.S.C. section 924(c)(1)(A)'s text shows that a defendant who exchanges drugs for guns "possesses" the guns "in furtherance" of a drug trafficking crime within the meaning of the statute. 

As the court wrote: "Gurka's possession of the gun 'furthered' the drug crime with which he is charged by the ordinary understanding of the term. While it is not natural to say that a person who trades drugs for guns 'uses' the guns in the transaction, it is natural to say that a person who trades drugs for guns 'possesses' the guns 'in furtherance of' the transaction."

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Jury Verdict For Plaintiff on Title VII Claim Vacated

In Morales-Vallellanes v. Potter, No. 08-2346, the First Circuit faced a challenge to a jury's $500,000 verdict in plaintiff's favor, later reduced to $300,00 due to a statutory cap and an award of $64,504 in back pay, in plaintiff's Title VII suit against his former employer, the United States Postmaster General, alleging discrimination and retaliation. 

Here, in finding that none of the claims made by plaintiff had a material effect on his employment, and therefore cannot constitute discrimination, the court vacated the jury's verdict as plaintiff failed to prove that he suffered any material adverse employment action within the meaning of Title VII's discrimination or retaliation provisions.     

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Declaratory Judgment Allowing Use of Easement Upheld

In Maritimes & Northeast Pipeline, LLC v. ECHO Easement Corridor, LLC, No. 09-1607, the First Circuit faced a challenge to the district court's judgment in favor of the defendants in plaintiff's suit for a declaratory judgment, among other claims, that it possessed sufficient rights over an easement corridor to allow it to use the easement for the purposes of constructing, operating, and maintaining a natural gas compressor station on a property north of the easement.

As stated in the decision: "Though the Amended Easement grants ECHO broad rights over the use and placement of roads and utilities within the Easement Corridor, the fee holders carved out for themselves (and their assigns) the use of Stud Mill Road - the primary means of access to the adjacent property."

Thus, in affirming the district court's judgment in favor of the plaintiff, the court held that the language of the Amended Easement was unambiguous in reserving for plaintiff the right to use the road for the desired purposes.     

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Shell Co. (Puerto Rico) Ltd. v. Los Frailes Serv. Station, Inc., No. 09-1279, concerned Shell's suit against a former franchisee under the Petroleum Practices Marketing Act, and challenges to district court's grant of Shell's motion for a permanent injunction and dismissal of defendant's counterclaims. 

The district court's grant of Shell's motion for permanent injunction is affirmed for the most part, but, the portion of the injunction ordering and compelling defendant to allow Shell to continue in possession of the service station until the expiration of the lease in 2014 is vacated as Shell made no showing of irreparable harm that might justify an order giving it possession of the property for the full term of the lease.  The judgment is affirmed as to the portion of the permanent injunction ordering defendant to cease any use of Shell trademarks, trade dress, or color patterns, and to comply with the post-termination provisions of its franchise agreements.  Finally, Shell's motion for summary judgment on defendant's antitrust counterclaims was properly granted.     

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Decisions in Civil Rights, Contracts, and RICO Matters

Roman v. Potter, No.09-1600, concerned a plaintiff's Title VII retaliation claims and claims under the Family Medical Leave Act against the United States Postal Service management in San Juan, Puerto Rico.  Because, even under the most generous interpretation of Title VII towards plaintiff, her claims fail, as well as her FMLA claims, summary judgment in favor of defendants is affirmed.     

In St. Paul Fire & Marine Ins., Co. v. VDE Corp., No. 08-2576, the court faced a challenge to the district court's grant of summary judgment in favor of the plaintiff releasing it from its obligations under a construction performance bond.  In finding that the defendant materially breached the bond by insisting that plaintiff could not employ the contractor contrary to the plain language of Paragraph 4.2 of the Bond, the court affirmed the district court's summary judgment in favor of the plaintiff.     

Puerto Rico Am. Ins. Co. v. Rivera-Vazquez, No. 08-2012, concerned a suit brought by nine insurance companies against hundreds of defendants, under RICO and Puerto Rico anti-fraud statute, claiming a wide-ranging scheme to defraud the insurers by submitting false automobile insurance claims.  The court held that the district court's entry of summary judgment against a husband and wife must be vacated as it abused its discretion in denying defendants' Rule 36 motion and cross-motions for summary judgment by applying materially different procedural requirements to the two motions.      

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Borges v. Serano-Isern, No.09-1699, concerned a plaintiffs' medical malpractice suit against a doctor and a hospital, claiming that the doctor's negligence in his delay in calling for and performing the C-section resulted in numerous physical and neurological injuries to their daughter.  However, because plaintiffs have failed to present any developed argumentation with respect to the Hospital's liability, they have waived their claim that the district court erred in granting the Hospital's motion for summary judgment.  Furthermore, plaintiffs' argument that the doctor breached his duty of care through delay in calling for and performing the C-section fails because they offerd no evidence that the doctor could or should have known, at the relevant time, that the daughter suffered from either Bradycardia or a cord prolapse.     

Inatosca v. Step Plan Services, Inc., No. 09-1038, concerned a plaintiffs' reach-and-apply action to freeze pendente lite certain funds in the hands of third-parties, due to one or more of other defendants who owe money judgments to the plaintiffs in an underlying lawsuit.  Because the likelihood of success finding by the district court is more than adequately supported, and the court made a more than adequate assessment on affidavits that present defendant likely is an alter ego of the defendants in the underlying suit, district court's grant of preliminary injunction in favor of the plaintiffs is affirmed. 

In US v. Aranjo, No.08-2307, the court faced a challenge to convictions of a former CEO of a federal credit union and her husband (a treasurer at the credit union's related entity) for conspiracy to embezzle and to make false entries, and other related crimes.  In rejecting both defendants' Batson claims, the court held that the district judge did not clearly err in accepting the proffered reasons with respect to the government's peremptory challenge of an African-American juror.  Furthermore, the husband's remaining claims are rejected as sufficient evidence supported his convictions.   

US v. Guzman, No. 08-1693, involved a conviction and life sentence of defendant for his role in an arson that killed a mother and her infant daughter.  In affirming the conviction, the court held that there was no error in the denial of defendant's motion to suppress statements made to ATF agents, and that there was no error in the court's exclusion of hearsay statements offered by defendant and limits on cross-examination.  The court also held that the district court correctly found a jurisdictional nexus with interstate commerce.  Lastly, with respect to the life sentence, the court held that the defendant was properly sentenced as the district court's failure to explain the sentence was not plain error, correctly applied the sentencing guidelines and the life sentence was substantively reasonable.   

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