Justia U.S. 1st Circuit Court of Appeals Opinion Summaries

Articles Posted in December, 2011
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Defendant entered a conditional plea of guilty to a charge of possession with an intent to distribute a controlled substance (21 U.S.C. 841(a)(1)) and appealed denial of a motion to suppress. The First Circuit affirmed. An investigatory "Terry" stop and pat-down of defendant was based on reasonable suspicion. A 911 caller from the residence reported a man at the residence, with a gun and making threats and the police stopped men they believed to have just left the residence. Their conduct indicated likely possession of a gun. The court properly determined that defendant's actions in taking a bag out of his pocket, throwing it on the ground, and disclaiming ownership, was an attempt to cooperate, rather than submission to legal authority.

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In May 2009, defendant was charged with making false statements in a passport application, falsely representing that he was a U.S. citizen, and aggravated identity theft, 18 U.S.C. 1542, 911, 1028A. In August he filed a motion to dismiss based on violation of his right to a speedy trial, 18 U.S.C. 3161(c)(1). The court denied the motion, finding that 15 days granted for discovery and preparation of pretrial motions were excludable and that his trial would begin within the prescribed 70 day period. Defendant was convicted and sentenced to 29 months in prison. The First Circuit reversed. The exclusion of 10 days for pretrial motions and discovery was error, given the absence of any recorded ends-of-justice finding. The exclusion of 16 days between a pretrial conference and the motion to dismiss was improper; defendant only vaguely suggested that he might seek a continuance and did not "lull" the court and prosecution into believing he was waiving his rights.

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Defendant was convicted of possession of child pornography (18 U.S.C. 2253 (a)(4)(B)), three counts of transportation of child pornography via computer in interstate or foreign commerce (18 U.S.C. 2252(a)(1)), and two counts related to use of the internet in order to transfer obscene matters to an individual the appellant knowingly believed to be under the age of 16 (18 U.S.C. 1470.1). The First Circuit vacated, holding that the conviction was largely based on improper "overview" testimony by an agent, improper identification testimony by that agent, and that agent's testimony about a video chat that was shown to the jury.

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Defendant, a drug dealer who, with another, robbed a crack dealer at gun point, was convicted under the Hobbs Act, which makes it a crime to rob or conspire to rob "in any way or degree obstructs, delays, or affects" interstate or international commerce, 18 U.S.C. 1951(a)-(b). He was sentenced to six-and-one-half years in prison. The First Circuit affirmed. The indictment sufficiently alleged impact on interstate commerce. The trial court properly found that statements made by the defendant, in an unlocked, unmarked police car, were voluntary and were not made in custody. The evidence was sufficient to support conviction.

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State environmental police officers brought state court litigation against their employer, the Rhode Island Department of Environmental Management, based on the DEM's handling of wage and benefit matters, relating to unorthodox work schedules. Based on a claim under the Fair Labor Standards Act, 29 U.S.C. 201, the case was removed to federal court. The district court held that the state had immunity under the FLSA and ruled in favor of the state on other claims. The First Circuit affirmed, rejecting an argument that a state waives its sovereign immunity by removing a claim to federal court. Waiver occurs only if removal confers an unfair advantage on the removing state. In this case, "removal did not change the level of the playing field."

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Plaintiff, a tenured professor at the University-defendant, was arrested by campus police and charged with stalking and disorderly conduct after unleashing an expletive-filled tirade against a colleague whom he suspected of causing him to receive a parking ticket. Plaintiff was temporarily banned from campus, removed as department head, and required to attend an anger-management class. Although the charges were later dismissed, Collins sued for false arrest, defamation, and violation of his due process rights. The district court granted judgment for the defendants. The First Circuit affirmed, first rejecting an argument that the arrest was illegal because the "violation" was civil in nature. The warrant was supported by probable cause. Suspension with pay for two months was a minimal deprivation that did not entitle plaintiff to pre-deprivation process. Plaintiff was allowed to visit campus several times during the ban and was given adequate process for the minimal deprivation of liberty. An email indicating that plaintiff's presence on campus should be reported was not defamatory.

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In 1995, plaintiff, a popular psychic and astrologer, and defendant entered into a contract for production and distribution of materials featuring plaintiff's psychic and astrological services. Plaintiff granted defendant the right to use his trademark, name, and likeness. After a 2006 dispute led to litigation; a jury rejected plaintiff's claim that he had validly terminated the agreement, found that he had violated the agreement, and found that defendant owed him no compensation. In 2009, both parties sought injunctive relief to prevent the other party from using the trademark. The district court entered a preliminary injunction in favor of defendant, finding that plaintiff had assigned the trademark in perpetuity. The First Circuit affirmed. The district court did not abuse its discretion in issuing a preliminary injunction, based on its interpretation of the agreement and application of collateral estoppel, based on the prior litigation.

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In 2000 defendant entered a "C-type" plea of guilty to conspiring to possess with intent to distribute more than five kilograms of crack cocaine, 21 U.S.C. 841(a)(1), 846. The agreement bound the court to a sentence of 240 months. In 2007 the Sentencing Commission amended the guidelines retroactively. Defendant's motion for sentence reduction was denied. The First Circuit affirmed. The Supreme Court remanded. After considering the matter under the Supreme Court's 2011 decision, Freeman v. United States, the First Circuit concluded that defendant is ineligible for sentence reduction, reasoning that it is not clear that the agreed sentence was based on the subsequently-amended guideline.

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Defendant was convicted of conspiring to distribute and possess, with intent to distribute, 1,000 kilograms or more of marijuana; money laundering; engaging in unlawful monetary transactions; and perjury. The First Circuit affirmed, rejecting an argument that the district court improperly denied motion to suppress evidence. Information supporting the search warrant was not stale and was sufficiently particularized, despite not mentioning growing materials. Because no evidence concerning the leaf was introduced, defendant's argument that a marijuana leaf was destroyed in "bad faith," before it could be tested, was moot. The record indicated no prejudice from denial of a motion to sever. The court followed appropriate procedures in removing a juror and removal of the juror did not create improper inference amongst the jury that the removal was based on wrongdoing that members inevitably would associate with defendant.

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Defendant was convicted of using an interstate commerce facility or means in attempting to persuade a minor to engage in illegal sexual activity (18 U.S.C. 2422(b)). The First Circuit affirmed, rejecting a claim that the indictment actually charged him with attempting to persuade a minor to engage in sexual activity not with him, but with another minor, a charge that the defendant claimed was unsupported by the evidence. The court acknowledged that the indictment was "not a model of clarity." The court also rejected an argument that the district court constructively amended the indictment by instructing the jury in accordance with the government's theory and by instructing the jury in such a way that he may have been convicted based on uncharged conduct.