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

July 2010 Archives

US v. Gerhard, 08-2056, concerned a challenge to a conviction of defendants for actively supporting two convicted criminals during a well-publicized, nine-month standoff with federal authorities.  In affirming the conviction and the sentences, the court rejcted defendants' claims that their convictions are multiplicitous.  Court held that the indictment adequately alleged the federal crimes committed by the two principals, and that the U.S. had "territorial jurisdiction" to prosecute defendants.  Court held that a defendant's Sixth Amendment right to represent himself was not violated.  Also, a defendant's ineffective assistance of counsel claim is premature, and his remaining claims related to the trial are meritless.  Court held that there was no error in the verdict form or jury instructions, that defendants' convictions for conspiracy to be an accessory after the fact and for being an accessory after the fact were supported by sufficient evidence, and rejected defendants' various challenges to their sentences. 

Bingham v. Commonwealth of Massachusetts, 09-2049, concerned plaintiffs' Takings Clause suit against the Commonwealth of Massachusetts and the Town of Mashpee, framed as a class action on behalf of themselves and all similarly situated descendants of the Mashpee Wampanoag Indians.  In affirming the district court's dismissal of the suit concluding that plaintiffs lack standing, the court held that there is no jurisdiction to hear the case because, even when viewing all factual allegations in plaintiffs' favor, plaintiffs cannot show they have suffered a personal injury as a result of the challenged state actions.

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Qui Tam Action Under the FCA & Bivens Claim

U.S. ex rel. Loughren v. Unum Group, 09-1606, concerned a qui tam action under the False Claims Act (FCA), claiming that defendants knowingly caused their insureds to file baseless applications for Social Security Disability Insurance (SSDI), thereby burdening the Social Security Administration with the time and expense required to deny such claims.  In affirming the district court's judgment in part, the court held that, because the statement at issue is capable of influencing the agency's decision to consider and ultimately pay the claim, it is thus material under the FCA.  Also, it was not unreasonable for the jury to conclude that defendant at least had "reckless disregard" for the falsity of the claimants' statements that they were "unable to work" within the meaning of the Social Security Act.  However, the court vacated in part and remanded where the district court abused its discretion in excluding certain evidence that is highly relevant to one of the elements necessary to prove defendant's liability.

Giragosian v. Bettencourt, 09-2001, concerned plaintiff's Bivens action against a regulatory inspection officer employed by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), arising from an investigation of defendant and his gun shop following an incident where plaintiff was training a customer to use a handgun when the customer committed suicide by shooting himself in the head.  In affirming the district court's order dismissing the action, the court held that, because the officer was entitled to qualified immunity from suit, plaintiff failed to state a claim on which the district court could grant relief.

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Ly v. Holder, 09-2529, concerned a Cambodian citizen's petition for review of a final order of the BIA upholding an IJ's denial of his request for asylum and related relief.  In denying the petition, the court held that substantial evidence supported the BIA and IJ's findings that petitioner's fears of future harm were unrelated to a protected ground, and his remaining claims lack merit.

Aponte-Rosario v. Acevedo-Villa, 09-1200, concerned a challenge to the a grant of defendants' motion for summary judgment in plaintiffs' action against several officers of the Commonwealth of Puerto Rico, the Puerto Rico Public Housing Administration (PRPHA), and the Department of Housing and Urban Development (HUD), claiming that in preparing and approving an application for demolition of their housing project residents violated their statutory right to resident consultation under section 1437p of the U.S. Housing Act of 1937 and other claims.  In affirming the judgment, the court held that, there are no genuine issues of material fact as to PRPHA's compliance with resident consultation prior to filing an application for demolition with HUD, and district court's dismissal of plaintiffs' de facto demolition claim is affirmed as well.

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Zimmerman v. Puccio, 09-1416, concerned a challenge to the district court's grant of plaintiffs' motion for summary judgment in a class action lawsuit against defendant-Cambridge Credit Counseling Corporations (Cambridge) and other corporate defendants, pursuant to the Credit Repair Organizations Act (CROA), and unfair or deceptive acts or practices in violation of the Massachusetts Consumer Protection Act.  In affirming the judgment, the court held that Cambridge was a credit repair organization within the meaning of CROA.  Further, the district court unambiguously held defendants liable for misleading representations under section 1679b(a)(3) of CROA, and that finding of liability is affirmed based on the court's corporate veil-piercing analysis.  The court also held that because defendants' liability under section 1679b(a)(3) fully supports the district court's grant of summary judgment, defendant's liability under section 1679b(a)(4) and their attendant arguments about summary judgment standard and corporate veil-piercing need not be reached.

Torres v. Dennehy, 09-1522, concerned a challenge to the district court's denial of defendant's petition for habeas relief from his 1997 convictions for the murder of his girlfriend's fifteen-year-old child and for charges growing out of the alleged abuse of her two other children.  In affirming the district court's denial of the petition, the court held that defendant's ineffective assistance of counsel claim fails because the elicitation issue was resolved on the merits against defendant, and it does not matter whether counsel ought to have raised it earlier. Further, defendant's argument that his Miranda waiver was invalid need not be reached, since it depends on the assumption that the interview was itself a Sixth Amendment violation.

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US v. Maldonado, 09-1626, concerned a challenge to the district court's imposition of a sentence of 120-months imprisonment in a prosecution of defendant for crimes related to his role in a conspiracy to distribute cocaine.  In vacating the sentence, the court held that an attaching plates offense under Massachusetts law does not count toward defendant's criminal history under the guidelines.  The court also held that whether defendant qualifies for the safety valve and, if so, whether a different sentence should be imposed are matters for the district court on remand.

Cruz-Vazquez v. Mennonite Gen. Hosp., Inc., 09-1758, concerned a challenge to the district court's judgment in favor of the defendants in plaintiff''s suit filed pursuant to the Puerto Rico's medical malpractice law and the federal Emergency Medical Treatment and Active Labor Act (EMTALA).  In vacating the judgment, the court held that the district court abused its discretion in excluding plaintiff's expert witness, as considerations such as an expert witness's pecuniary interest in the outcome of a case, or his status as an expert witness only for one side of an issue, or the extent to which a doctor currently sees patients, go to the probative weight of testimony, not its admissibility.

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Brown v. Colegio De Abogados De Puerto Rico, 08-2432, concerned a class action suit against the integrated bar association of the Commonwealth of Puerto Rico, arising from the organization's activity of requiring members to purchase life insurance in order to practice before Puerto Rican courts. 

As stated in the decision: "After Romero, Colegio did not fully advise its members that they no longer had to buy insurance, threw obstacles in front of those trying to opt out, and delayed refunds.  In fact, it moved to disbar one member who refused to pay the portion of his dues attributable to the program.  This sorry record answers claim of mootness and also defeats any claim that the district court abused its discretion on the separate issue of whether as a matter of discretion an injunction was warranted."

Thus, the court affirmed the district court's denial of defendant's motion to dismiss the case as moot and the district court's declaration of liability and its grant of injunctive relief.  However, the court vacated and remanded the award of damages for the district court to allow notice to be given to class members including their right to opt out of the class.

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Vietnam Veteran's FTCA Suit Against the Government

Roman-Cancel v. US, 09-2311, concerned a challenge to the district court's dismissal of the Federal Tort Claims Act  (FTCA) claim, in a Vietnam veteran's suit against the government under the (FTCA), arising from the VA's decision in 1975, lowering the plaintiff's disability rating to 70%, which was returned to 100% by the Board of Veterans Affairs in 2001 along with an award of retroactive benefits totaling $33,905.11.  The court affirmed the dismissal, but on alternative holdings as plaintiff's suit is untimely because under section 2401, plaintiff had six months within which to sue after the denial of the relevant administrative claim.  The court also held that the plaintiff did not file either administrative claim with the VA within two years after his cause of action accrued.

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Neves v. Holder, 07-1091, concerned a Brazilian citizen's petition for review of the BIA's denial of his second motion to reopen proceedings, on remand from the Supreme Court for reconsideration in light of Kucana v. Holder.  In denying the petition, the court held that jurisdiction exists to review the BIA's decision to deny equitable tolling of the time and number limitations governing petitioner's second motion to reopen but not to review the BIA's refusal to exercise its sua sponte authority to reopen.  The court also held that, even assuming arguendo that equitable tolling of these requirements is available, the BIA did not abuse its discretion in denying the motion, as BIA found that petitioner failed to show he had exercised due diligence in pursuing, reopening, and substantial evidence supported that factual determination.

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Drug Conspiracy Conviction Affirmed, Plus Immigration Matter

US v. Rivera-Moreno, 08-1961, concerned a challenge to the district court's imposition of a sentence of 365 month's imprisonment and a fifteen year term of supervised release in a prosecution of defendant for conspiracy to distribute controlled substances.  In affirming both the sentence and the term of supervised release, the court held that the district court did not commit clear error in its factual findings, including the calculations of the drug quantities, and that the district court did not abuse its discretion in imposing defendant's sentence.

Makalo v. Holder, 09-2034, concerned a Gambian citizen's petition for review of a decision by the BIA affirming an IJ's denial of his application for withholding of removal and related relief.  In denying the petition, the court held that substantial evidence supported the IJ's and BIA's denial of relief as petitioner simply did not present significant credible evidence that he was wanted by Gambian authorities or that he was wanted for political reasons.

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Decisions In Criminal and Environmental Law Matters

US v. Sebastian, 08-2533, concerned a challenge to the district court's imposition of a 193-month sentence and ten years of supervised release in a prosecution of defendant for leading a cocaine drug conspiracy.  In affirming the sentence and the terms of the condition on supervised release, the court held that there is no plain error in requiring defendant to comply with a pornography ban as a condition of his supervised release if and only as required by any treatment program he may attend.  The court also held that there is nothing in the record that shows that even if the court had discretion to reduce the mandatory minimum sentence on disparity grounds the court would have imposed a more lenient sentence.

US v. Figueroa-Cartagena, 08-2110,  concerned a challenge to a conviction of defendant for aiding and abetting a carjacking that resulted in death and other related crimes.  In affirming in part, the court held that sufficient evidence supported defendant's conspiracy conviction and the carjacking conviction.  However, the court reversed defendant's conviction for the firearm count as, it was unreasonable for the jury to find defendant guilty in the absence of any proof that she knowingly facilitated the use or carriage of the firearm.  Lastly, the court rejected defendant's evidentiary and procedural arguments in support of her request for a new trial are rejected.

US v. Castro-Davis, 08-2108, concerned a challenge to the convictions of defendants for conspiracy to commit carjacking, aiding and abetting a carjacking resulting in death, and using or carrying a firearm in connection with a carjacking.  In affirming for the most part, the court held that sufficient evidence supported the convictions of both defendants, that a recorded conversation of one of the defendants with his mother was properly admitted, and that the prosecution's statements at issue do not warrant a new trial.  However, the court held that defendants' life sentences should be vacated and remanded for resentencing as the statutory penalty for carjacking resulting in death is "any number of years up to life" under 18 U.S.C. section 2119(3).

City of Pittsfield v. U.S. Envtl. Prot. Agency, 09-1879, involved a city's petition for review of the Environmental Protection Agency's grant of a National Pollutant Discharge Elimination System permit for the city's wastewater treatment plant, seeking changes to the terms of the permit.  In affirming the Environmental Appeals Board's denial of review, the court held that the Board did not err in holding that the city had procedurally defaulted because its petition failed to identify its specific objections to the permit or to articulate why the Board should assume jurisdiction.

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San Juan Cable LLC v. Puerto Rico Tel., Co., Inc., 09-1965, concerned a private cable operator's suit against a rival-competitor claiming that the defendant has transgressed section 541(b)(1) of the Cable Act by constructing a cable system over public rights-of-way and providing cable service without having obtained a franchise.  In affirming the district court's judgment in favor of the defendant, the court held that section 541(b)(1) of the Cable Act does not give rise to an implied private right of action, and that a private cable operator lacks standing to enforce prohibitions contained in two FCC rulemaking orders.

Booker v. Massachusetts Dep't of Pub. Health, 09-1082, concerned a plaintiff's suit against her former employer and other individual defendants for retaliation and tortious interference with contractual employment relations.  In affirming a jury verdict in favor of the defendants and district court's denial of plaintiff's post-trial motions, the court rejected plaintiff's claim that the court's jury instruction on the meaning of a "materially adverse action" misstated the legal standard governing her retaliation claim.  The court also held that plaintiff failed to lay a proper evidentiary foundation for a spoliation instruction and therefore the court did not abuse its discretion in refusing to give it.

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US v. Celestin, 09-1161, concerned a challenge to a conviction of a defendant for bank fraud and conspiracy to commit bank fraud.  In affirming the convictions, the court held that the district court did not abuse its discretion in denying defendant's motion to sever defendant's trial from that of his co-conspirator who represented himself.  The court also held that there was no abuse of discretion in the district court's rejection of defendant's Brady claims, and that defendant failed to show any violation of his Fifth Amendment rights.

Saysana v. Gillen, 09-1179, concerned a Laotian citizen's request for an award of attorneys' fees under the Equal Access to Justice Act, arising from a grant of his petition for habeas relief in his challenge to the BIA's conclusion that he was subject to the mandatory detention provision in 8 U.S.C. section 1226(c).  In denying his request for attorney's fees, the court held that, assessed in its totality, the government's position cannot be characterized as unjustified.

Galera v. Johanns, 08-2435, concerned a plaintiff's suit for retaliation under Title VII against the U.S. Secretary of Agriculture, claiming that the USDA engaged in discriminatory employment and recruitment practices against him in retaliation for having engaged in protected activity.  In affirming the district court's grant of defendant's motion for summary judgment, the court held that plaintiff's claims are barred as the alleged retaliatory conduct occurred prior to the effective date of the parties' settlement agreement, and the agreement complied with the relevant regulation.

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In Zajanckauskas v. Holder, 09-1394, the First Circuit dismissed for lack of jurisdiction, a ninety-five year old Lithuanian national's petition for review of BIA's affirmance of the IJ's decision to order his deportation from the U.S., on the ground that petitioner participated in the Nazi liquidation of the Jewish ghetto in Warsaw and misrepresented this fact to gain entry into the U.S. and while living in the U.S. for almost 60 years.

Kennedy v. Town of Billerica, 08-2221, concerned plaintiffs' 42 U.S.C. section 1983 suit against a Massachusetts town and more than two dozen police officers in their official and personal capacities, claiming that for thirteen years, the town's police conspired to and did deprive family members of their constitutionally protected civil rights and committed state law torts in order to drive plaintiffs out of town.  In reversing in part, the court held that the error in instructing the jury in the first trial on the state law crime of assault and battery on a police officer requires that there be a new trial on the only successful federal civil rights claim against a police officer in that trial, as this error undercuts the basis for a defendant police officer's defense to a federal claim of false arrest for that crime.  As such, the court vacated the federal civil rights award against the town and the award of attorney's fees under section 1988. 

The court also vacated the state law verdicts in the first trial against the town and two officers based on intentional infliction of emotional distress (IIED), as well as the state law verdict in the second trial in directing an entry of judgment for defendants on a state IIED because there was no evidence at trial supporting a finding that the officer intended to inflict emotional distress or that his conduct caused the emotional harms asserted by one of the minor plaintiffs.  The court affirmed the verdict for plaintiffs against the other officer on an assault charge, and uphled the district court's grant of defendants motion for judgment as a matter of law on plaintiffs' cross-appealed claims against the two officers.

Ahmed v. Holder, 09-2085, concerned a married Pakistani couple's petition for review of the BIA's denial of their applications for withholding of removal and related relief.  In denying the petition, the court held that there is no foundation on which the court may base a reversal of the BIA's determination that relief is unwarranted in the absence of specific and direct evidence bearing on the petitioners' circumstances.  The court also held that the BIA correctly concluded that the petitioners had failed to establish a clear probability of persecution on account of political opinion.

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Plaintiff's ERISA Suit Not Supported By Lyme Disease Diagnosis

Gent v. CUNA Mut. Ins. Soc'y, 09-1703, concerned a challenge to the district court's grant of a long-term disability insurance provider's motion for summary judgment in plaintiff's ERISA suit, claiming that the insurer had unlawfully terminated her long-term disability benefits after determining that plaintiff was subject to the "mental illness limitation," in its policy.

After determining that the clinical evidence undermined a Lyme disease diagnosis, the court went onto state,"Gent's history of depression makes the Lyme disease diagnosis more susceptible to questioning.  Before claiming disability due to Lyme disease, Gent had filed a disability claim based on recurrent major depressive disorder.  Symptoms of this disorder overlap with symptoms of Lyme disease."

Thus, in affirming the district court's judgment, the court held that the evidence does not establish plaintiff's claim that her illness was caused by Lyme disease.

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Decisions In Criminal and Immigration Matters

US v. Weekes, 07-2209, concerned a challenge to a conviction of defendant for being a felon in possession of a firearm and a 15-year sentence under the Armed Career Criminal Act.  In affirming the conviction and the sentence, the court held that the juror selection plan in effect at the time of defendant's trial complied with the Sixth Amendment.  The court rejected defendant's challenges to several evidentiary rulings.  Also, the court held that the district court did not commit plain error in concluding that defendant's two prior drug convictions were serious drug offenses under the ACCA, and that defendant's prior conviction for resisting arrest was a violent felony under the statute.  However, the court vacated district court's dismissal of defendant's motion for collateral relief under section 2255,  as the district court's ruling on claim of ineffective assistance of counsel as a petition for relief under section 2255 was premature, and thus, should have dismissed it without prejudice.

US v. Sanchez, 09-1906, concerned a challenge to the district court's denial of a motion to suppress a gun and ammunition seized during an inventory search of defendant's motorcycle impounded by the police In a prosecution of defendant for being a felon in possession of a firearm, arising from his arrest for domestic violence.  In affirming the judgment under plain view exception to the warrant requirement, the court held that the officers had lawfully reached the position from which they saw the objects that they subsequently seized, that the police had probable cause to believe that crimes had been committed and that the motorcycle and license plate constituted evidence of those crimes. And finally, that the officers were lawfully in the parking lot and could access the motorcycle without trespassing.

Hakim v. Holder, 09-1692, concerned an Indonesian citizen's petition for review of the BIA's decision reversing a grant of applications for asylum and for withholding of removal.  In dismissing the petition without prejudice, the court held that here, the petitioner filed a petition for judicial review before the IJ had been afforded the opportunity to determine his eligibility for voluntary departure.  Therefore, if the court exercised jurisdiction in this case, it would be permitting petitioner to circumvent the voluntary departure regulation by allowing him to seek both voluntary departure and judicial review.

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Toribo-Chavez v. Holder, 2581437, concerned a Mexican citizen's petition for review of the BIA's affirmance of an IJ's order of removal and a denial of his request for cancellation of removal.  In denying the petition, the court held that there is substantial evidence to support the IJ's and BIA's finding that petitioner is removable, given the multiple marriage license and immigration forms that inaccurately reflected petitioner's marital history and children, as well his false testimony under oath that his current marriage was his first.  The court also affirmed the IJ's and BIA's denial of cancellation of removal, and rejected petitioner's due process violation claims.

O'Donnell v. Boggs, 09-1659, concerned a challenge to the district court's grant of defendants' motion for summary judgment in plaintiff's suit against her former supervisor and Board members claiming tortious interference with contractual relations, arising from termination of her employment from a credit union bank.  In affirming the decision, the court held that plaintiff's tortious interference claims are preempted as no court or jury could decide whether the Board's actions were improper without interpreting the CBA's terms.

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US v. Matos, No. 09-1178, concerned a challenge to the district court's imposition of a sentence of 84-months' imprisonment and four years' supervised release for defendant's wire fraud and money laundering convictions.  The court affirmed the 84-month sentence in concluding that the defendant cannot establish that his concurrent sentences of 84 months constitutes plain error.  The court also held that Godin and Ahrendt do not advocate in favor of remanding for resentencing in light of Amendment 709, that the district court did not commit plain error in counting defendant's prior convictions, and that defendant has not met his burden of showing that the district court's orders of restitution was plain error.  However, the court vacated district court's imposition of four years of supervised release and remanded for the sole purpose of the imposition of a new term of supervised release on all counts that does not exceed three years

Nako v. Holder, No. 09-2351, concerned a petition for review of a BIA's affirmance of IJ's denial of an Albanian family's request for asylum and related relief.  In denying the petition, the court held that substantial evidence supported the BIA's and IJ's conclusion that fundamental changes in the Albanian political situation since 2001, when petitioner-father was last in Albania, rebutted the presumption that the father had a well-founded fear of future persecution by his Socialist Party adversaries.  The court also held that substantial evidence supported a conclusion that the evidence was insufficient for petitioner to make out a claim for CAT protection.

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