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

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Federal Courts - 1st Circuit Court of Appeals - December 4 - December 12, 2008

United States v. Hebshie, No. 07-2339, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 4, 2008, Decided
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Overview: Reservation-of-rights letter, standing alone, could support conviction for mail fraud pursuant to 18 U.S.C.S. ? 1341 because although letter did not guarantee success of defendant's scheme, or even significantly advance it, letter was incident to an essential part of defendant's scheme, i.e., successfully navigating insurer's claims investigation.

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Fitzgerald v. Harris, No. 08-1306, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 5, 2008, Decided
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Overview: Me. Rev. Stat. Ann. tit. 12, ? 1822, was not preempted by federal agency action since the National Park Service and the Army Corps of Engineers had approved Maine's plans for bridges over the Allagash Wilderness Waterway. Nor was the statute preempted by a conflict with the Wild and Scenic Rivers Act, 16 U.S.C.S. ? 1271 et seq.

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Khan v. Mukasey, No. 08-1112, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 5, 2008, Decided
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Overview: Substantial evidence, as required by 8 U.S.C.S. ? 1252(b)(4)(B), supported the denial of an application by an alien-a Pakistani national-for withholding of removal under 8 U.S.C.S. ? 1231(b)(3)(A) as, though the alleged beating and electrical shock that he received in prison was objectionable, it occurred only once and did not cause serious injury.

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United States v. Jordan, No. 08-1432, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 5, 2008, Decided
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Overview: Where defendant, while out on bail, was arrested for drunk driving, a trial court did not err in denying him an offense level reduction under U.S. Sentencing Guidelines Manual ? 3E1.1 for acceptance of responsibility because any post-indictment criminal conduct could be considered and his arrest showed that he had not truly accepted responsibility.

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Broadley v. Hardman, No. 08-1342, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 10, 2008, Decided
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Overview: Where a company owner alleged that an attorney interfered with his legal representation and abused the deposition process in a state court proceeding, state action was not established under ? 1983, because the attorney's issuance of a subpoena in the name of the state of Rhode Island did not transform him into a state actor.

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Dennis v. Osram Sylvania, Inc., No. 07-2670, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 10, 2008, Decided
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Overview: Where a terminated employee alleged that the employer retaliated against him because of his deposition testimony in another employee's harassment proceeding, his retaliation claim under N.H. Rev. Stat. Ann. ? 354-A:19 failed because he could not show causation or pretext since, inter alia, he would still have been replaced in a reduction in force.

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Pelletier v. Yellow Transp., Inc., No. 07-2627, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 10, 2008, Decided
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Overview: In a former employee's discrimination suit, arbitration was properly compelled pursuant to a dispute resolution agreement's (DRA) arbitration clause because the merger clause in the employee's application for employment did not nullify the DRA and the DRA did not lapse before the employer hired the employee.

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United States v. Poellnitz, No. 07-2774, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 10, 2008, Decided
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Overview: Nothing in Fed. R. Crim. P. 11 or elsewhere required that defendant be told that he could have sought a transfer under Fed. R. Crim. P. 21, rather than Fed. R. Crim. P. 20, without pleading guilty and waiving his right to trial. A district court insured that defendant's guilty plea was voluntary; there was no error in the plea colloquy.

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Munoz-Monsalve v. Mukasey, No. 08-1291, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, December 12, 2008, Decided
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Overview: Alien was not denied due process in denial of asylum since sua sponte initiation of competency proceedings was not required, lack of credibility was supported by inconsistent statements concerning persecution and failure to provide available corroboration, and record was substantially complete despite missing transcript of calendar conference.

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