IMMIGRATION, CIVIL PROCEDURE

Fontes v. Gonzales, August 14

The circuit denies the petition for a rehearing en banc because petitioner raised for the first time in his petition for a rehearing the argument that the Board of Immigration Appeal's denial of his waiver of deportability violated the Constitution by suspending the privilege of petitioning for a writ of habeas corpus.

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SENTENCING

U.S. v. Jiminez, August 14

The circuit finds that defendant, during the plea colloquy, was informed with unmistakable clarity that he faced a 20-year mandatory minimum prison sentence and he clearly indicated that he understood the terms of the plea agreement. The fact that he supplied heroin which resulted in a death was an essential element of the charge to which defendant pleaded guilty, so he has no ground for arguing that the "death resulting" element that enhanced his sentence should have been proven beyond a reasonable doubt. Affirmed.

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TRIBAL LAW, ENVIRONMENT

Maine v. Johnson, August 8

The circuit concludes that under the terms of the Maine Indian Claims Settlement Act, Maine has authority as to both tribal and non-tribal land to regulate discharges into navigable waters because such regulation is outside the scope of the internal affairs exemption in the Act. Thus, the U.S. Environmental Protection Agency properly approved the state's plan to take over permitting of discharges. However, the EPA improperly carved out two tribal source points on grounds that they have insignificant consequences for non-members and therefore are exempt from state regulation. The Settlement Act makes ordinary Maine law apply, even if only tribal members and tribal lands are affected in the particular case, as long as the internal affairs exemption does not apply. Affirmed in part.

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TORT

Luc v. Wyndham Management Corp., August 7

The circuit finds that plaintiffs' suit against a bar, which served liquor to a man who later drove while drunk and seriously injured plaintiffs in a collision, was properly dismissed because Massachusetts does not recognize any theory of liability by which the bar would be liable, given the lack of any evidence that bar employees continued to serve liquor to the man after he was already visibly intoxicated. Dismissal affirmed.

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EMPLOYMENT

Davila v. Corporacion de Puerto Rico Para la Difusion Publica, August 7

The circuit concludes that plaintiff was properly discharged from his job for unsatisfactory performance during a 10-month probationary period. Plaintiff failed to establish that defendant actually fired him because of his age in violation of age discrimination laws. Dismissal affirmed.

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CIVIL RIGHTS

Martinez-Rivera v. Ramos, August 7

The district court improperly dismissed, on its own motion, the claims alleging an unreasonable search and seizure in violation of the Fourth Amendment and a Fourteenth Amendment due process violation in the death of plaintiffs' relative, who was allegedly unarmed when he was shot by police in a drug raid. Though plaintiffs cannot, at this stage, identify the specific officer who fired the fatal shot, plaintiffs may bring suit against an unnamed party where a good-faith investigation has failed to reveal the identity of the relevant defendant, and there is a reasonable likelihood that discovery will provide that information. Other claims were properly dismissed. Defendants were not federal actors and there was no formal adjudication of guilt, so the Fifth Amendment claim and Eighth Amendment claims, respectively, were inapplicable. Affirmed in part.

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CRIMINAL PROCEDURE, SENTENCING

U.S. v. D'Amico, August 7

The circuit holds that the indictment charging defendant with a completed and attempted extortion in one count is not duplicitous because attempts are lesser-included offenses of completed Hobbs Act violations, and all the elements of attempted extortion are elements of the completed crime. Based on the evidence, a reasonable jury could have concluded that defendant, a former city councilor in Quincy, Mass., received funds in exchange for official acts because even though the road project that the bribe payer sought had already been approved, defendant promised to maintain pressure on city officials to complete the project. A misstatement by the prosecutor does not appear to have been a deliberate distortion of the evidence and, in any event, was not so central to the case that it likely affected the outcome. The district court did not offer sufficient reasons for imposing a four-month sentence that was 88 percent below the low end of the guideline range. While defendant had helped constituents as a city councilman, that was his job. Reversed.

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SENTENCING, JUVENILE LAW

U.S. v. Matthews, August 7

The circuit holds that the district court's use of defendant's prior juvenile offense as a predicate conviction to support a sentencing enhancement under the Armed Career Criminal Act did not violate due process. The statute does not overstep Massachusetts laws, which asserts that juvenile acts are not criminal in nature, because it does not effect a wholesale conversion of juvenile adjudications into criminal convictions but only narrowly extends the statute's reach to specific violent juvenile conduct. Affirmed.

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EVIDENCE, SENTENCING 

U.S. v. Duval, August 7

The circuit concludes that although the government was slow to disclose exculpatory information about an informant, defendants only speculated that the government did not disclose everything it knew about payments to the informant, and that does not suffice to establish the likelihood of a disclosure violation. Even if there were further information, it would not have given defendants much help because it would not bear directly on their guilt or innocence. Indeed, the known payments to the informant were not used to impeach him at trial. The sentence of one defendant was properly enhanced pursuant to the Armed Career Criminals Act. Even though he was convicted of simple assault, he was sentenced to five years in prison as a recidivist, so the offense counted as a qualifying prior conviction. Affirmed.

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RESTITUTION

U.S. v. Hyde, August 7

The circuit holds that the government has authority under the Mandatory Victims Restitution Act to garnish the sale proceeds of a house that the debtor had attempted to exempt from the reach of creditors in a Chapter 7 federal bankruptcy proceeding. The restitution order, which resulted from a criminal case in which defendant was convicted of cashing pension checks sent to his mother for nearly 20 years after her death, created an entirely new obligation owed to the United States that was unaffected by the homestead exemption he declared when he filed for bankruptcy. Affirmed.

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ERISA

Todisco v. Verizon Communications Inc., August 6

The circuit concludes that plaintiff was not entitled to supplemental life insurance benefits from defendant based on an election made in reliance on incorrect information that defendant provided orally over a telephone hotline. The language of defendant's benefits plan clearly requires a statement of current health in order to obtain supplemental life insurance, and it is undisputed that plaintiff's deceased husband never submitted this form, so she can not invoke the ERISA provision that empowers a "participant or beneficiary" to bring suit "to recover benefits due" under the terms of the plan. Dismissal affirmed.

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LABOR

Shank/Balfour Beatty v. International Brotherhood of Electrical Workers Local 99, August 6

The electrical union filed a grievance challenging management's assertion that it could assign the work of resetting breakers on a tunnel boring machine to non-electricians. The circuit finds that the question of whether the grievance is arbitrable is an issue for the court to decide, not the arbitrator, and the district court properly concluded that the grievance was arbitrable because it was not a jurisdictional dispute. Enforcement of the award against appellant joint venture was proper in the face of management's claim that the remedy violates the management rights section of the collective bargaining agreement. The judgment against one of the partners in the joint venture as a separate entity was improper because the company was not a party to the case. Affirmed as modified.

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EVIDENCE

U.S. v. Rivera-Hernandez, August 3 

The circuit finds that the government introduced sufficient evidence to support the jury's conclusion that defendant illegally laundered money that was obtained through extortion, even though defendant was acquitted by the jury of the underlying offense of extortion. Taken as a whole, the evidence established that defendant, a public official, received nearly $100,000 that he was not entitled to receive, with knowledge that the payment was tendered in exchange for the award of a contract to the company whose owner advanced the funds by paying fraudulent invoices issued by a company owned by defendant's father. Affirmed.

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TORT

Ramirez-Carlo v. U.S., August 1

Plaintiff, a heart-bypass patient at a Department of Veteran Affairs hospital, settled a claim for a 1996 misdiagnosis of his heart condition and later filed a second claim alleging that the same condition was misdiagnosed in 1995. The circuit concludes that defendant is equitably estopped from asserting a statute of limitations defense to plaintiff's claim because the government received and never objected to a letter from plaintiff suggesting that the parties had agreed that plaintiff's second claim could be submitted at a later date. Reversed.

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EMPLOYMENT

Muniz-Olivari v. Stiefel Laboratories Inc., August 1

Defendant allegedly breached an employment contract that guaranteed plaintiff, a sales and marketing manager, continued employment even if defendant later decided to shut down its Puerto Rico operations, as it did, terminating plaintiff along with all other employees. The circuit finds that the evidence supports the jury verdict awarding damages to plaintiff. The circuit certified to the Supreme Court of Puerto Rico the question of whether damages for mental anguish and suffering are recoverable under Puerto Rico law in breach of employment contract actions. Remanded.

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EMPLOYMENT, CIVIL PROCEDURE

Rodriguez-Garcia v. Municipality of Caguas, July 31

The circuit finds that the district court properly dismissed plaintiff's claim that her demotion in a Puerto Rican government agency constituted political discrimination because plaintiff failed to establish that the municipal officials were aware of and were motivated by her political affiliation. However, her retaliation claim against one official should be reinstated because the district improperly limited her use of letters sent by her lawyer to the official. Though the district court concluded that those letters were covered by a federal rule that bars use of offers to compromise as evidence, the letters simply notified officials about plaintiff's claim and were not offers to compromise. Reversed in part.

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IMMIGRATION

Chedad v. Gonzales, July 31

The circuit finds that petitioner's motion to reopen his application for adjustment of status did not toll the voluntary departure period. Thus petitioner is ineligible for any further relief because he disobeyed the voluntary departure order. Petition denied.

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IMMIGRATION

Lopez-Reyes v. Gonzales, July 31

The Board of Immigration Appeals denied petitioner's request for administrative closure, which would have temporarily removed her asylum case from the calendar pending a ruling on her father's asylum application. The circuit lacks jurisdiction to review petitioner's challenge to the government's decision not to agree to administrative closure because she failed to raise the issue before the Board of Immigration Appeals and thus did not exhaust administrative remedies. The denial of administrative closure did not violate due process because petitioner failed to demonstrate an entitlement to relief, so there is no cognizable liberty interest at stake. She also did not suffer any cognizable prejudice because she may still be eligible to claim derivative benefits based on her father's asylum application. Petition denied.

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EVIDENCE

USA v. Portalla, July 31

The circuit finds that defendant's conviction for conspiracy to distribute cocaine was based on evidence that even though he did not sell the drugs or exercise a leadership position within the conspiracy, he knowingly facilitated the conspiracy by providing the chief conspirators with false employment credentials in order to enable purchases of residences and vehicles that served the drug trafficking enterprise and provided them with cell phones acquired under a false name. Affirmed.

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BANKRUPTCY

In re. Stephen H. Chew, July 30

Defendant's siblings opposed his claim in a bankruptcy proceeding for a homestead exemption on a residence their mother intended for all of her children to inherit. The district court ruled that plaintiffs were barred by claim preclusion from opposing the exemption. The circuit holds that Massachusetts law governs the claim preclusive effect of a prior state court proceeding in which the rights of the parties to the residence were adjudicated, and under Massachusetts law, since the prior and current actions share the same parties and the same cause of action, plaintiff's may not relitigate the matter in bankruptcy. Affirmed.

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CONSUMER LAW

Ruiz v. Bally Total Fitness Holding Corp., July 30

The circuit finds that the health club contract in dispute does not violate a provision of the Massachusetts Health Club Services Contracts Act that prohibits the required financing of a health-club contract for more than one month beyond the expiration of that contract. While the health club gave members the option of financing a membership fee, the club did not require any such extended payment plan or financing arrangement. Affirmed.

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ZONING

Cordi-Allen v. Halloran, July 27

The circuit concludes that the district court properly dismissed plaintiff's claim that disparate treatment by town officials in regard to their plans to build on their property constituted a denial of equal protection. Plaintiffs failed to establish that other town citizens who were treated differently were similarly situated because plaintiff's plan to build a 3,000-foot house on an undersized lot was dramatically different than other small additions to existing homes that neighbors had been allowed to build without applying for a variance. Affirmed.

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JURY

USA v. Gil-Carmona, July 27

The circuit concludes that even if the district court erroneously removed from the jury's consideration the issue of whether defendant's boat, which was apprehended with drugs within U.S. territorial waters offshore from Puerto Rico, was subject to the jurisdiction of the United States, the error was harmless. There is no rational view of the evidence that would lead to any other conclusion because the boat was within U.S. territorial waters and had other characteristics of a drug transshipment vessel as defined in the Maritime Drug Law Enforcement Act. Affirmed.

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AGRICULTURE

Harvey v. Johans, July 24

The circuit holds that amendments to the Organic Foods Production Act, enacted in response to a prior ruling striking down regulations that were deemed to be too tolerant of non-organic substances in foods that can be labeled as organic, made it clear that Congress intended to permit limited use of synthetics as both ingredients and processing aids, so the complaint challenging the regulations was properly dismissed. Affirmed.

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EVIDENCE, JURY

US v. Teleguz, July 24

The circuit holds that defendant was not entitled to an entrapment instruction. While the government witness gave defendant a chance to participate in interstate sales of illegal firearms, no reasonable jury could conclude that the witness improperly induced defendant to participate. The interstate gun-running charge was supported by the evidence, which established that 22 of the 25 weapons at issue had been manufactured in other states or countries and therefore must have crossed state or foreign lines. There is no evidence to support defendant's argument that after he signed a Miranda waiver, as he asserted his right to remain silent by selectively answering questions. Affirmed.

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TRIBAL LAW

Carcieri v. Kempthorne, July 20

The circuit holds that the Secretary of the Interior has authority under the Indian Reorganization Act to place into trust for a tribe, over the objections of the state, land that is outside the area designated as tribal land under the Settlement Act. The secretary's interpretation of the Indian Reorganization Act on this issue is rational and not inconsistent with the statutory language or legislative history, and must be honored. Affirmed.

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EMPLOYMENT

Sueiro Vazquez v. Torregrosa de la Rosa, July 19

The district court set aside a jury's award of damages to plaintiffs, who claimed they were fired from their government jobs in Puerto Rico because of their political affiliation in violation of the First Amendment, but the court ordered defendants to reinstate plaintiffs to their jobs. The circuit concludes that the public officials were entitled to qualified immunity because they fired plaintiffs on the advice of the Secretary of Justice, who questioned the legality of employee transfers involving plaintiffs, and defendants were required by law to follow the secretary's advice. Defendants' purported notice of their appeal of the reinstatement order was inadequate because they failed to comply with filing fee requirements. Affirmed.

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SEARCH

USA v. Diaz, July 19

The circuit concludes that defendant's wife, who stepped away from the door and motioned for police officers to enter after they knocked on the door, consented to the search of the apartment. The officers properly seized a cell phone, which was sitting on the kitchen table and which they believed had been used by defendant a short time earlier to discuss a drug deal, under the "plain view" exception to the warrant requirement. While a government witness's mention of defendant's illegal immigration status carried the potential for prejudice, that potential went unrealized in light of the fact that there was strong evidence of defendant's guilt. Affirmed.

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EMPLOYMENT, GOVERNMENT

Carrero-Nazario v. Lopez-Bonilla, July 18

The circuit finds that the district court properly dismissed a suit by a developer that accused the new mayor in Puerto Rico of discriminating against him because of his political affiliation by rescinding the prior mayor's approval for a shopping center to be built the developer, who was a member of the same political party as the former mayor. The evidence fails to support a finding that the developers' party membership was a substantial factor that drove the new mayor's opposition to the project. Affirmed.

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PROSECUTORIAL MISCONDUCT

U.S. v. Carpenter, July 18

Defendant defrauded investors by making high-risk investments that lost money while telling investors that their funds would be invested prudently. The district court granted defendant a new trial on grounds that the prosecutor had inflamed the jury. The circuit finds that the prosecution's repeated use of gambling metaphors during closing arguments, despite the district court's explicit warning against distracting the jurors from the elements of the crimes charged, could have unfairly influenced the jury. Affirmed.

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IMMIGRATION

Lopez de Hincapie v. Gonzales, July 17

The circuit finds that asylum petitioner failed to offer evidence of any connection between the threats of violence against her in her native Colombia and a statutorily protected ground such as membership in a political group. The threats were likely motivated by extortion or some other species of garden-variety criminality and were a local phenomenon that she could protect against by moving away from the small town where she had lived. Petition denied.

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MURDER

USA v. Fisher, July 13

The circuit finds that the jury explicitly found that defendant's murder, despite the fact that the murder took place in Canada, would have violated a federal statute that makes it a federal crime to kill a cooperating federal witness and which specifically provides for extraterritorial federal jurisdiction. The verdict therefore satisfied the statutory requirements of the murder-for-hire law. Affirmed.

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SEARCH

USA v. McFarlane, July 12

The circuit finds that a police officer had probable cause to arrest defendant because he saw him chase another man after hearing gun shots, and then learned from the other man that defendant was the shooter, an assertion that was corroborated by defendant's furtive conduct suggesting that he was attempting to conceal an object in a trash can. The jury instruction accurately described the elements required for a conviction under the theory of constructive possession. Affirmed.

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ERISA

Zipperer v. Raytheon Company, July 12

Plaintiff claimed that his employer provided him with an erroneous estimate of his retirement benefits that persuaded him to accept voluntary early retirement. The circuit finds that plaintiff's negligence claims under Massachusetts law are preempted by the federal Employee Retirement Income Security Act. Affirmed.

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IMMIGRATION

Heng v. Gonzales, July 12

The circuit finds that the immigration judge's determination that petitioner lacked credibility was inadequate and based in part on an inaccurate description of petitioner's testimony. Petitioner's testimony was consistent on a central issue while another discrepancy identified by the judge concerned an issue that was not at the heart of petitioner's claim. Petition for review granted.

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MIRANDA

USA v. Mittel-Carey, July 11

The circuit finds that the district court properly suppressed statements made by defendant to officers who interrogated him while searching his home and before reading him his Miranda rights. A reasonable person in defendant's situation would have believed he was in custody during the search. The factors which indicated defendant was in custody include the fact that eight officers were involved in the search, which they said was part of an undercover sting operation investigating child pornography, and the fact that police interrogated him for more than 90 minutes, after initially confronting defendant with an unholstered gun, while maintaining physical control over him at all times. Affirmed.

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AFFIRMATIVE DEFENSE

Pike v. Guarino, July 2

The circuit finds that the district court properly rejected petitioner's application for habeas relief because she may have experienced battered woman's syndrome but she was competent to stand trial for murder in a crime orchestrated by her batterer. The circuit rejects petitioner's contention that she was involuntary forced by the effects of the abuse from asserting battered woman's syndrome as a defense and that her inability to present that defense constituted a violation of her constitutional rights. Affirmed.

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RICO

USA v. Nascimento, July 2

The circuit holds that even though street gang members were engaged in violent but noneconomic criminal activity, the district court properly found that the normal rules governing prosecutions under the Racketeer Influenced and Corrupt Organizations Act apply to defendants. The government established that the gang constituted an enterprise, and evidence that the gang had amassed an arsenal of firearms manufactured out of state sufficed to satisfy RICO's interstate commerce nexus. Affirmed.