U.S. First Circuit: August 2012 Archives
U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog

August 2012 Archives

Gang Encounter Differs from Gang Persecution Under CAT

Much as boys will be boys, gangs will be gangs.

The First Circuit Court of Appeals recently denied a former El Salvadoran police officer's asylum appeal after finding that the petitioner failed to prove that gangs in his home country persecuted him on account of a protected ground under the Convention Against Torture (CAT).

The case serves as a reminder that, "greed -- not social group membership -- is the apparent trigger" for much gang violence.

First Circuit: Series of Arrests Warrants Upward Departure

Your client is innocent until proven guilty. And those arrests that never resulted in charges? Irrelevant at trial.

But the First Circuit Court of Appeals ruled this week that uncharged arrests can be relevant to a sentencing judge's upward departure determination.

Joseph Lozada-Aponte pleaded guilty to being a felon in possession of a firearm, after shipping an assault rifle from Florida to Puerto Rico. He was sentenced to 46 months in prison. Lozada appealed.

'Timely' Service of Process Should Take Less Than 461 Days

Timely service of process is just what the doctor court ordered.

Plaintiff Sobeida Feliz argued to the First Circuit that a district court abused its discretion in dismissing her malpractice and wrongful death claims against a doctor for failure to make timely service of process. The First Circuit disagreed, concluding (in an opinion by Justice Souter, sitting by designation), that “dismissal well over a year after filing the complaint and after serial, unexplained delays without apparent effort to get service was within the district court’s discretion.”

On the Starboard Hand of Every Woe is a Lesser Included Offense?

The First Circuit Court of Appeals issued an opinion on Tuesday which rejected an "I-violated-regulations-but-not-statutes" defense, and clarified that ignorance of the law really isn't an excuse when a defendant clearly knew better.

And the court quoted Moby Dick throughout the opinion.

This. Changes. Everything. (Actually, it Changes a Few Rules)

To quote Macauley Culkin as Kevin McCallister in Home Alone, "This is it. Don't get scared now."

Really. There's no reason to get scared: We're just talking about proposed amendments to the Federal Rules of Practice and Procedure.

First Circuit: Fraud Judgment Means Debt is Nondischargeable

Murphy's Law was working overtime when David Sharfarz started talking to contractors about building an addition to his new home. Sharfarz ended up hiring Peter Goguen. The contract for the job required Goguen to pour the foundation by October 15, 2006, to obtain the necessary town permits, and to complete the project by March 15, 2007.

Goguen lied to Sharfarz on multiple occasions throughout the project, (e.g. saying he applied for permits when he hadn't, demanding — and receiving — money for a worker he never hired). Sharfarz's primary concern through the process was pouring the foundation before the weather turned cold to avoid cracks. The project was delayed (due to the missing permits), the foundation was poured after the weather turned cold, and the foundation — you guessed it — cracked.

The First Circuit Court of Appeals ruled against a Massachusetts wastewater treatment plant in an August 3 decision.

But not all are happy with the decision. The Mayor of Worcester, for one, is debating what to do next, in light of the First Circuit’s upholding of the stringent environmental limitations on the Millbury facility, reports the Telegram News.

A three-judge panel of the First Circuit Court of Appeals addressed the issue of mixed-motive retaliation claims by government employees earlier this month.

Interestingly, the court found that such claims would fail when the purported discrimination was only one of the motivating factors behind the adverse employment action.

Ever heard of the Nigerian money scam? Todd Denson certainly did. He took the idea and ran with it, ending up in jail on counts of mail fraud and wire fraud.

The First Circuit Court of Appeals didn’t buy any of his arguments on appeal, however.

Contingency fees versus hourly fees— which is the appropriate standard in a class action lawsuit?

Last Friday, the First Circuit Court of Appeals overturned a class action attorneys’ fees award in a lawsuit against Volkswagen and Audi, reports Thomson Reuters News & Insight.