Appellate Law & Practice

This blog is devoted to appellate law and will provide case summaries and links to articles on appellate advocacy. Please send your news and views to Appellate [at] gmail [dot] com. We also welcome new contributors. Email us if you are interested.

Tuesday, November 23, 2004

CA1 (11.23.04)

(Update: Nadherny v. Roseland and some news tidbits appears at the bottom)

Five Opinions Today.

In US v. Carrasco-mateo, No. 03-1553, Judge Selya utilized his vocabulary to hold that someone who probably doesn’t speak English too well was sentenced properly by the District Court after a guilty plea. Carrasco-mateo had been convicted in a New York state court, paroled to the INS and deported. Then he tried to sneak back into the US but he was caught. The base level of the sentence was eight under USSG §2L1.2(a), which was bumped up because of his prior conviction and sentence (over 13 months) under USSG §2L1.2(b)(1)(A)(i), and knocked down by USSG §3E1.1(a) for acceptance of responsibility. Moving across the grid, §4A1.1(d) bumped him up because of his illegal entry while on parole. Carrasco-mateo argued that because the comments to USSG §2L1.2, cmt. n.1(A)(iv) refers only to portions of criminal sentence that was served, not the portion of time in which he was paroled to the INS who then deported him. However, the court disagreed and held that the words “sentence imposed” refers to the time that the court imposed, even if he got out earlier and was paroled out of the country, and noted that “he appellant's reading would instead reserve the most severe punishment for those who -- because of poor behavior, ill fortune, or the inconsistent operation of parole in the several states -- happen to serve more time.”

(A number of blogs have noted that Judge Selya uses big words. I will probably make my rather obvious feelings about this practice known in the near future. Anyway, here is David Starkoff's discussion.)

Syed v. Ashcroft, No. 03-1715. In a scam marriage case, the court upheld the decisions of an IJ. Interestingly in this case, Mr. Syed has two wives. One which he divorced, and an IJ found such marriage to be fraudulent (because of fraudulent documents and because it did not have the “ring of truth” – whatever that means), and while he was awaiting deportation, his second wife “ filed an immediate relative visa petition on his behalf” which was approved. However, the IJ found that he was ineligible for an adjustment because of his prior scam marriage. As I have said earlier, expect more scrutiny of immigration cases.

Carcamo-Recinos v. Ashcroft, No. 03-2428, is also another upholding of an immigration judge, but in this case, the question is whether the petitioner should be given asylum. The petitioner was a former Guatemalan mayor who was, apparently, threatened by some people. The former mayor eventually lost the election and because a dairy farmer, but still seemed to be threatened by people. Despite expert testimony that he would be a “marked man”

The IJ denied relief, concluding that Carcamo had failed to prove either that the threats that he endured constituted persecution or that Carcamo harbored a reasonable fear of future persecution. As to past persecution, the IJ was persuaded by the facts that Carcamo was never harmed or directly confronted, maintained an active political career, traveled abroad and returned on numerous occasions, and did not establish a likely source of the threats. As to a fear of future persecution, the IJ emphasized Carcamo's travel abroad and that he and his family were never harmed. The BIA summarily affirmed the IJ's decision.

The Court affirmed, agreeing that what had happened was not really persecution under 8 U.S.C. §1101(a)(42)(A).

US v. Bezanson-Perkins, No. 04-1293
, holds that hat a defendant who has given a valid Miranda waiver may not seek to suppress his later voluntary and uncoerced statements to the police on the grounds that (arguably) misleading statements by the police invalidated his Miranda waiver. The Court characterizes his argument as not being purely a Miranda one, but rather, an “arguing that if he had a lawyer, he would not have confessed, and was misled into confessing by the police statements.” For those of you who like to see how anyone, given the right amount of veggieburgers can be coerced into talking without a lawyer, this is a good read.

As promised, here is Nadherny v. Roseland, No. 04-1516, which is yet another bench-slap from the First Circuit over the proper standard for summary judgment. In short, the court cannot use other case law to take judicial notice of extrinsic evidence such as trade usage to interpret a contract.

Nadherny was hired by Roseland as a developer of various commercial properties. His contract, while apparently sloppily drafted, provided that he had a financial interest in each of the properties that he developed. In particular, the contract said “Your interest in such new projects will vest at the same time that the Roseland Entity's interests vest.” Yet, the contracts also stated that Nadherny was an “at-will” employee.

Nadherny was fired while some projects were still being built. Roseland said that he is not entitled to any interest in the projects, because its interest had not vested, and Nadherny disagreed.

The District Court concluded that there were no disputed material facts regarding the contract, and granted summary judgment to Nadherny, holding, as I see it, that the contract was not illusory, and therefore, Nadherny had some interest in nascent projects, and Roseland could not just decide the fire him the second before they were finished. Or, in the District Court’s Words, “If plaintiff's interests had been contingent upon continued employment, Roseland was bearing very little risk at all." According to Roseland, the District Court brought in extrinsic evidence by finding:

Taken as a whole, the language of the Contract and absence of a termination provision as to plaintiff's unvested real estate interests (construed against Roseland, which drafted the agreement), the circumstances leading up to the Contract, and the case law concerning analogous contracts all demonstrate that there is no genuine issue of material fact as to the interpretation of the Contract.

(emphasis added)

The Court of Appeals held that summary judgment was not proper on the contract claim because the language was ambiguous, and that looking to other first circuit cases to determine trade usage was improper, because “The parties did not agree to this procedure. Industry custom and practice was, instead, subject to dispute and, in the absence of evidence, could not be the subject of judicial notice.” They also pointed out that it was unclear as to whether the contract should really be construed against the drafter, as both parties were sophisticated, and both had done a really bad job of drafting this contract.

If I were on the court I would have addressed the issue of whether it is correct to construe an arguably illusory contract to be binding.

Another thing I realized is that the court doesn’t seem to discuss whether this why this should not have been resolved as a parol evidence issue. Indeed, if the parties were just so damn sophisticated, it is likely that they would have known the meaning that the first circuit had accorded these words in the past, and therefore, maybe the decisions of the first circuit could have come in as parol evidence (which is governed by state substantive law, which seems to be lacking in this opinion), and would come in under FRE 902, thereby eliminating any hearsay problems.

On the other hand, the District Court concluded that Roseland had not breached an implied covenant of good faith, because they had “submitted ample evidence of ‘concern over plaintiff's performance and that the risk they had taken in hiring someone with limited development experience was not working in their favor.’" The Court of Appeals affirmed.

And in other news...

Although not strictly appellate practice, the USSC released its 15-year report here, but since the FSGs are going to be the hottest issue in appellate practice, it is timely. And Feddie (of Southern Appeal) says he is really impressed with us. . As you will note, his blog has the word “appeal” in the title, and he used to clerk for an Appeals Court.

Mark Godsey on the Crimprof blog notes US v. Weed [insert joke here... dds], in which the tenth circuit held that it doesn’t violate due process to make insane acquittees prove, by clear and convincing evidence that they are no longer insane. Unfortunately, because I am not a member of BNA’s service, I can’t read the whole thing.

"Justice Suitor" on Greedy Clerks points us to the rumor mill, which tells us that Luttig may have violates some rules by working on certain cases he should not have because he was too fresh from the Supremes. If he did violate the rules, since everyone loves Luttig I think we should just change the rules to let everyone do what Luttig did. (By the way, the rule is Supreme Court Rule 7, which is also available on p. 8 of this pdf )


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