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

PRTC, telecommunications local exchange carrier under the jurisdiction of the Telecommunications Regulatory Board of Puerto Rico and the FCC, entered into an interconnection agreement with Sprint. In a dispute concerning compensation, the Board held that under the agreement''s change-of-law provision PRTC and Sprint were to reciprocally compensate each other for internet-service-provider bound traffic in accordance with an interim compensation order set forth by the FCC in its ISP Remand Order. The Board dismissed Sprint's claim that PRTC had overcharged for termination of transit traffic. The district court upheld the Board. The First Circuit reversed in part. The ISP Remand Order did not alter existing contractual obligations and, therefore, did not trigger the change-of-law provision. The court affirmed dismissal of the overbilling claim.

Defendant was convicted of conspiracy to possess with intent to distribute marijuana, 21 U.S.C. 841(a)(1), 846. The district court, relying on trial testimony and the PSI Report, attributed 26 kilograms of marijuana to the defendant, yielding a base offense level of 18. Combined with his criminal history category, this offense level produced a guideline sentencing range of 27 to 33 months. The court imposed a sentence of 27 months. The First Circuit affirmed. The district court evaluated testimony carefully and erred, if at all, on the side of caution, using conservative figures and low-end estimates; the ultimate drug quantity determination was not clearly erroneous.

Petitioner, a citizen of the Dominican Republic, entered the U.S. in 1982 and became a lawful permanent resident. About 10 years later he pled guilty to armed robbery. Later he pled guilty to auto-stripping. Upon his return from a 2003 trip he was denied readmission, then paroled. During removal proceedings petitioner conceded that second-degree robbery was a crime of moral turpitude, but contended that his conviction should be waived under former 8 U.S.C. 1182(c)). The immigration judge rejected the argument, finding that auto-stripping is also a crime of moral turpitude. The BIA affirmed and petitioner was removed. In 2010 petitioner requested that the BIA reopen in light of the 2010 Supreme Court decision, Padilla v. Kentucky. Petitioner claimed ineffective assistance of counsel because his attorney did not inform him of the immigration consequences of a guilty plea. The BIA denied the motion. The First Circuit denied appeal. Aliens have a right to move to reopen removal proceedings, 8 U.S.C. 1229a(c)(7)(A), within 90 days of a final order. The BIA was within its discretion in refusing to waive the limit, given that petitioner made no attempt to have his state law convictions overturned.

Defendant, a lawful permanent resident of the U.S. shared a home. When his housemate's visa expired and he was unable to obtain work, defendant allowed the housemate, for a nominal fee, the use of his driver's license and social security card. He obtained employment in defendant's name. Defendant was convicted of aiding and abetting aggravated identity theft, 18 U.S.C. 1028A. The First Circuit affirmed, rejecting an argument that, because he permitted the use of his documents, there was no theft. The statute does not require that the means of identification be stolen or otherwise illicitly procured. The prosecutor's statements about a witness having "no axe to grind," even if improper, did not require a new trial.

Convicted of distribution of cocaine base, 21 U.S.C. 841(a)(1)(2006), totaling five or more grams, within 1000 feet of a school, 21 U.S.C. 860, defendant was sentenced, as a career offender, to 216 months in prison. The First Circuit affirmed, rejecting a challenge based on the trial court's failure to define "reasonable doubt." The court also upheld the trial judge's handling of objections to references to the defendant being the target of a "sting operation," in light of the very strong evidence of guilt.

Defendant purchased an expired passport and a social security card and attempted to use them to obtain a passport with his picture. He entered a plea of guilty to two counts of making false statements in a passport application, 18 U.S.C. 1542, one count of unlawful re-entry of a deported alien, 8 U.S.C. 1326, and aggravated identity theft, 18 U.S.C. 1028A, and received a 70-month prison sentence. The First Circuit affirmed, finding that the plea was knowing and voluntary. The court rejected an argument that, because defendant bought, rather than stole, the passport, the identity theft was not a use of documents "without lawful authority." The sentence was procedurally and substantively sound; in light of defendant's criminal history, it was at the bottom of the Guidelines range.

Plaintiff filed suit in 2007 against the two officers who arrested her during a nightclub incident. The district court denied her motion to amend her complaint to add the City of New Bedford as a defendant. She did not appeal. The case ended in a settlement prompted by an offer of judgment under Federal Rule of Civil Procedure 68. Within a few weeks after judgment was entered plaintiff filed a second suit based on the nightclub incident, naming the City as the defendant. The district court dismissed the case based on the doctrine of claim preclusion. The First Circuit affirmed, noting that plaintiff offered no explanation for the delay of 10 months in moving to add the City to the first case.

In 2005 the debtor business purchased a business and signed a promissory note. The business failed, allegedly because the seller continued to compete, in violation of the contract. The debtor listed a breach of contract claim as an asset. The trustee was unable to retain an attorney to pursue the claim and, with the limitations period running out, the court approved abandonment of the claim. The seller then offered to buy the claim and stock in the debtor company. The First Circuit affirmed the district court holdings that the claim had been abandoned (11 U.S.C. 554(c)), but that the stock had not been abandoned. Although the debtor did not identify eery possible theory of recovery in listing the claim as an asset, the trustee was on notice of tort theories. The transfer of the claim was not a violation of the automatic stay.

A federal grand jury issued a subpoena to a law office, commanding production of documents relating to a real estate transaction. The attorney obtained the client's consent and complied. The client changed his mind, notified USAO that the documents were privileged, and moved to quash the subpoena.The district court found that the documents were not privileged. The First Circuit affirmed. The district court acted within its discretion in conducting an in camera review; the client's generalized assertion of privilege did not establish that privilege attached to any particular document. The documents would have been disclosed at closing and the attorney essentially acted as a scrivener and disburser of funds. The request for production did not implicate the privilege against self-incriminating testimony.