SUMMARIES OF US First Circuit Court of Appeals decisions are available through a free e-mail subscription offered by the FINDLAW Web site. Below is a sampling of recent summaries published with permission from FINDLAW.

Havercombe v. Dept. of Educ. of the Commonwealth of Puerto Rico, (5/16/01 – No 00-1931)

Even though plaintiff received a right-sue-letter on new allegations only shortly before trial began on a previous complaint, his failure to request an opportunity to amend the complaint forecloses a later complaint on res judicata grounds. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001931.html

US v. Conley, (5/16/01 - No 00-2141)

A motion for new trial based on the government’s failure to disclose new evidence must have support in the form of a showing that the evidence was material and that the defendant suffered prejudice to some degree. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/002141.html

Straughn v. Delta Air Lines, Inc., (No 00-1549 - 5/17/01)

Where plaintiff admitted to wrongfully retaining workers’ compensation benefits while still on salary, and the record shows that she attempted to conceal this fact from her superior, no trialworthy issue of fact exists regarding whether her supervisor was reasonable in his disbelief. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001549.html

Wilson v. Bradlees of New England, Inc., (No 99-1779 - 5/17/01)

Fed. R. Civ. Proc. 37(c)(1), which requires the near automatic exclusion of Rule 26 information that is not timely disclosed, imposes no obligation on the trial court to review the evidence in question, but requires the party to justify its delay in disclosure. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/991779.html

Davis v. Lucent Technologies, Inc., (No 00-1329 - 5/30/01)

The continuing violation doctrine, protecting older violations from the statute of limitations defense, does not connect a more recent incident to an older event in order to consider the later incident to have been timely filed for exhaustion purposes. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001329.html

US v. Barnes, (No 00-1331 – 5/30/01)

Where retrial requires filing of a new indictment, the issuance of mandate in connection with the original appeal cannot be viewed as "the action occasioning the trial," and 18 USC 3161(c)(1), not 3161(d)(2), controls. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001331.html

Lebron-Torres v. Whitehall Laboratories, (No 00-1724 – 5/30/01)

Where plaintiff continued to perform the same job after her medical leave for the alleged disability, no reasonable jury could find that she is significantly restricted in her ability to perform a class of jobs or a broad range of jobs in various classes. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001724.html

O’Connor v. Commonwealth Gas Co., (No 00-1798; 00-1799 - 5/30/01)

An early retirement incentive that is little more than a lump-sum severance package is not an ERISA-covered plan even if other provisions might tend to implicate ERISA. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001798.html

Phelps v. Optima Health, Inc., (No 00-2347 – 5/30/01)

Even though an employer and employee have made arrangements to account for the employee’s disability, the district court must evaluate the essential functions of the job without considering the effect of the special arrangements. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/002347.html

US v. Paniagua-Ramos, (No 99-1568; 00-1764 – 5/30/01)

Because the formulation of jury instructions in a criminal case is an interactive process, with the parties bearing a responsibility to tell the judge what they think the jury should or should not be told, there are no sets of words appropriate for every situation involving the uncorroborated testimony of an accomplice. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/991568.html

Baralt v. Nationwide Mut. Ins. Co., (No 00-1453; 00-1741; 00-1742; 00-2107 – 6/1/01)

With virtually no evidence besides the discharges themselves pointing to age as a factor, and no evidence that the company fabricated the investigation to conceal other motives, no reasonable jury could reject the defendant’s explanation, dubious though it may be. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001453.html

US v. Benjamin, (No 00-1059 – 6/5/01)

A co-defendant’s use of a pre-printed deposit slip for a non-existent account, along with the fact that defendant wrote three checks withdrawing money from the account later that same day, provide sufficient evidence for jury to infer that defendant intended to deceive the bank. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001059.html

US v. Wilkerson, (No 00-1538 – 6/4/01)

Even if defense counsel’s poor handling of the receipt of stolen property evidentiary issue led the court into error, the exclusion of evidence offered to further impeach a witness’s credibility is harmless error if there was already substantial impeachment evidence in the record. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001538.html

Saakian v. Immigration & Naturalization Serv., (No 00-1771 – 6/5/01)

Due process requires that petitioner who was ordered deported in absentia be afforded the opportunity to satisfy the Lozada requirements and have his ineffective assistance claim heard on the merits. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001771.html

Mirra Co., Inc. v. Sch. Admin. Dist. #35, (No 00-1958 – 6/5/01)

Where a contract addendum merely changed the language of the arbitration clause to require mediation rather than arbitration, either party is free to file a lawsuit and the court may not compel arbitration. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001958.html

US v. Johnstone, (No 00-2473; 00-2474 – 6/5/01)

Where removal from the United States occurred after the conviction, a conviction that is later vacated for constitutional error can still serve as an "aggravated felony" for federal sentencing purposes under 8 USC 1326(b)(2). To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/002473.html

Gardner v. Vespia, (No 00-1544 – 6/11/01)

Because the Second Amendment does not confer an absolute right to bear arms, plaintiff’s inability to purchase a gun because of a misinterpretation of his conviction status does not implicate a constitutional right, so defendant is entitled to qualified immunity. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001544.html

US v. Cabral, (No 00-1068 – 6/12/01)

Where evidence showed that previously deported alien had only a one-way ticket and not enough money to buy a return ticket, his argument that he merely intended to request a waiver from the Attorney General and, if rebuffed, to return to the Dominican Republic, is disingenuous. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001068.html

Cruz v. Farquharson, (No 00-2261 – 6/12/01)

Where plaintiffs sued the INS alleging that petitions under 8 USC 1154 were not being processed, and INS subsequently processed the petitions, the action is moot even if it had been intended as a class action. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/002261.html

US v. Ramirez, (No 00-2274 – 6/12/01)

A federal sentencing court does not have discretion to credit to the mandatory minimum federal sentence six months time served on state charges for related conduct. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/002274.html

Gelabert-Ladenheim v. Am. Airlines, Inc., (No 00-2324 – 6/12/01)

Plaintiff is not disabled under the ADA where, though physically impaired, she is not substantially limited in any major life activity by her repetitive motion injury. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/002324.html

In Re: Urohealth Systems, Inc., (No 00-2458 – 6/12/01)

The district court abused its discretion in flouting the appellate court’s remand order by staying the case until the completion of the state court litigation instead of hearing defendant’s motion to dismiss with prejudice. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/002458.html

US v. O’Connell, No 99-1904 (1st Cir. June 12, 2001)

Defendant’s authority to transfer funds from the line of credit to the checking account and his close, personal relationship with the victims of his thefts suggest that professional discretion facilitated the commission of the crimes warranting sentence enhancement. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/991904.html

Penobscot Nation v. Georgia-Pacific Corp., (No 00-2265 – 6/20/01)

For purposes of the general federal-question jurisdiction statute, 28 USC 1331, a federal court lacks jurisdiction to hear a complaint that fails to allege federal claims or supports diversity jurisdiction even if a defense to the claim may provide subject matter jurisdiction. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/002265.html

Clauson v. New England Ins. Co., (No 00-1543; 00-1568 – 6/22/01)

Rhode Islands rejected settlement statute, R.I. Gen. Laws section 27-7-2.2, expands insurance policy limits to include interest only when the insurer rejects a settlement offer, because treating the insurer and the insured as one entity does not advance the state policy of encouraging reasonable settlements. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001543.html

US v. Burgos, (No 00-1163 – 6/22/01)

Negotiating to buy a large amount of cocaine over the course of six telephone conversations and approaching the purported seller with the agreed upon amount in cash is sufficient evidence for a rational jury to find that defendant demonstrated an intent to commit offense of possessing cocaine with intent to distribute, even if the purported agent had no cocaine to sell at all. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001163.html

Schock v. US, (No 00-2514 – 6/21/01)

Where the district court faces a novel question of law, and in fact errs in deciding the issue, the government agent’s litigation position is not substantially unjustified for purposes of the Equal Acces to Justice Act, 28 USC 2412(d)(1)(A). To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/002514.html

Kane v. Town of Harpswell, (No 00-9008 – 6/22/01)

A party cannot claim that res judicata from later judgments precludes timely appeal of the very judgment upon which those later judgments depended. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/009008.html

US v. Garcia-Martinez, No 00-1773 (1st Cir. June 29, 2001)

A civil arrest for re-entry into the US after deportation does not trigger the Speedy Trial Act unless there is collusion or evidence that the detention was for the sole or primary purpose of preparing for a criminal prosecution. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001773.html

US v. Frigerio-Migiano, No 00-1863 (1st Cir. June 29, 2001)

Proof of knowledge that money is derived from an illicit source is not enough for a money laundering conviction under 18 USC 1956(a)(1); the defendant must also know that the transactions in which he participated were part of a money laundering scheme. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/001863.html

US v. Maxwell, No 00-2084 (1st Cir. June 29, 2001)

Where duly promulgated regulations prohibit unauthorized entry to a military base, 18 USC 1382 merely requires intent to enter so the government does not need to show any other improper purpose, and speculation about the presence of nuclear submarines does not support a necessity defense. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/002084.html

Interstate Litho Corp. v. Brown, (7/6/01 - No 00-2344, 00-2522)

Sole shareholder and officer of defendant corporation may substitute as a real party in interest in order to pursue counter-claim against plaintiff where prior to knowledge of corporate dissolution shareholder disclosed his status and plaintiff tried to pierce corporate veil. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/1st/002344.html

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