1st Circuit Court of Appeals, November, 2008, Federal Case law

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Federal Courts - 1st Circuit Court of Appeals - November 19 - December 3, 2008

Budiono v. Mukasey, No. 07-2363, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, November 19, 2008, Decided
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Overview: The asylum application of an Indonesian woman was properly denied pursuant to 8 U.S.C.S. ? 1252(b)(4)(B) as she was not a refugee as contemplated under 8 U.S.C.S. ? 1101(a)(42)(A); though the IJ's characterization of the alien's experiences was insensitive, she was not subjected to systematic maltreatment but rather a series of isolated incidents.

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Vineberg v. Bissonnette, No. 08-1136, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, November 19, 2008, Decided
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Overview: Successors in interest to painting confiscated during Third Reich were entitled to judgment of replevin because painting's possessor, who asserted laches defense under Fed. R. Civ. P. 8(c), did not meet her obligation to adduce specific evidence of prejudice. Original owner and successors in interest had pursued their claim to painting diligently.

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United States v. Acosta-Roman, Nos. 07-1238, 07-1239, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, November 24, 2008, Decided
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Overview: Because the sentence, including the six-level enhancement under U.S.S.G. ? 2S1.1(b)(1), was imposed according to the terms and conditions of the plea agreement, defendant's appeal waiver was both valid and enforceable as to the enhancement issue, and therefore, appellate consideration of that issue, on the merits, was barred.

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Estate of Bennett v. Wainwright, No. 07-2169, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, November 26, 2008, Decided
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Overview: Except for the life interest of the victim of a police shooting, which was analyzed as an excessive force claim under the Fourth Amendment, the victim's estate failed to identify the deprivation of a recognized life, liberty, or property interest under the Fourteenth Amendment and waived its substantive due process claim.

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United States v. Marek, No. 07-2437, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, November 26, 2008, Decided
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Overview: The evidence was sufficient to support a vendor's conviction under 26 U.S.C.S. ? 7212(a) for corruptly endeavoring to obstruct or impede the due administration of the Internal Revenue Code. The evidence supported a finding of falsity and knowledge of the use of false invoices to obstruct the IRS.

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United States v. Parker, No. 07-2776, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, November 26, 2008, Decided
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Overview: Defendant was properly convicted and sentenced for drug and firearm crimes under 21 U.S.C.S. ? 846, 21 U.S.C.S. ? 841(a)(1), and 18 U.S.C.S. ? 924(c)(1)(A) because police action in requiring defendant to step outside motel room where he was staying was not seizure in violation of Fourth Amendment and suppression of items in room was not required.

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Guedes v. Mukasey, No. 08-2252, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 1, 2008, Decided
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Luzia Fustaguio do Nascimento v. Mukasey, No. 07-2608, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 1, 2008, Decided
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Overview: Given that a mechanism existed under 8 C.F.R. ? 1003.23(b)(4)(iii)(A) to cure the harm caused by the alien's attorney's incompetence and secure another opportunity to state her case against deportation, which the alien failed to do, the immigration proceedings were not rendered fundamentally unfair on account of ineffective assistance of counsel.

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United States v. Stierhoff, No. 08-1183, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 1, 2008, Decided
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Overview: Defendant was properly convicted of income tax evasion, in violation of 26 U.S.C.S. ? 7201, because trial evidence was entirely consistent with inference of willfulness. The facts included defendant's employment of an alias when conducting business, his persistent failure to file income tax returns, and his routine use of untraceable money orders.

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SEC v. Tambone, No. 07-1384, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 3, 2008, Decided
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Overview: Executives made implied statements to potential investors that they had a reasonable basis to believe that the prospectuses' statements regarding market timing practices were accurate. Since certain statements regarding market timing were allegedly false, their implied statements were also false and fell within the purview of 15 U.S.C.S. ? 78j(b).

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