Circuit Watcher

07-1482, 07-1483 Commonwealth of Massachusetts v. U.S.
Before Torruella, Circuit Judge, Stahl, Senior Circuit Judge, and Lynch, Circuit Judge.
LYNCH, Circuit Judge. The Commonwealth of Massachusetts wishes to ensure that the United States Nuclear Regulatory Commission (”NRC” or the “Commission”) will take account of the Commonwealth’s safety concerns about treatment of spent fuel rods before the NRC decides whether to renew the operating licenses of two nuclear energy plants: the Pilgrim plant in Plymouth, Massachusetts, and the Vermont Yankee plant in Vernon, Vermont, which is within ten miles of the Massachusetts border. The licenses were originally issued in 1972 and will expire in 2012; the re-licensing proceedings have been initiated and are ongoing. …
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We hold as a matter of law that the Commonwealth has chosen the wrong path in seeking to raise the safety issues as a party in the licensing proceedings and deny its petition. We also bind the NRC to its litigation position, described in more detail below. This leaves the Commonwealth free to follow the NRC’s preferred path if it so chooses. To the extent the Commonwealth seeks an order from this court interfering with the NRC’s ongoing re-licensing proceedings by imposing decision-making timetables on the agency, we issue a very brief stay but otherwise decline to issue such relief. … Commonwealth of Massachusetts v. U.S.

06-1626 Blair v. City of Worcester
STAHL, Senior Circuit Judge. Plaintiffs-appellants Brandon S. Blair and Richard N. Tousignant (”plaintiffs”) appeal the district court’s dismissal of two separate actions in favor of defendants City of Worcester, Massachusetts (”City”), former Worcester Chief of Police James Gallagher, and Worcester Police Officers Daniel Dowd, Thomas Dowd, Thomas C. Duffy, Falcone¹, Edward McGinn, James Moore, Jose Ortiz, Jonathan Thomas, and Peter Towler (collectively, “defendants”).² The plaintiffs, in separate complaints that were later consolidated, alleged that they were attacked and beaten by Worcester police officers, for which they sought recovery against the defendants under myriad legal theories. In an initial action, the district court granted the defendants’ motions to dismiss, without prejudice, for failure to perfect service of process. After the plaintiffs refiled their claims in a second action, the district court granted the defendant officers’ motions to dismiss for failure to state a claim, holding that the matter was time-barred. We affirm in part, reverse in part, and remand for further proceedings. … Blair v. City of Worcester.

1. The first name of Officer Falcone is unclear. [↩]
2. We note that the City of Worcester, Chief Gallagher, and Officer Thomas were not named in the second action. Moreover, the plaintiffs voluntarily dismissed Falcone from the second action on August 29, 2006. Finally, the plaintiffs have abandoned their claims with respect to Chief Gallagher and the City. Where these distinctions matter, we refer to the remaining defendants as the “defendant officers.” [↩]

07-2138 Lugo-Velázquez v. Stiefel Labs., Inc.
Before Torruella and Lynch, Circuit Judges, Keenan, Senior District Judge. ((Of the Southern District of New York, sitting by
designation.))
LYNCH, Circuit Judge. Roberto Lugo-Velázquez was an employee of Stiefel Laboratories Puerto Rico, Inc. until his employment was terminated when that company substantially reduced its operations to one person in Puerto Rico in January 2003. While employed, Lugo was a participant in an employee stock bonus plan of the parent company, Stiefel Laboratories, Inc. He was not, however, a participant in the Stiefel Laboratories § 401(k) retirement plan; Puerto Rican residents, like Lugo, did not qualify to be participants because of federal tax rules.
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After his employment was terminated, Lugo brought a number of claims in federal court in Puerto Rico against Stiefel Laboratories and Stiefel Laboratories Puerto Rico. By order dated February 8, 2005, the district court assigned all further proceedings in the case to a magistrate judge. Summary judgment was entered against Lugo on all claims in two successive rounds of summary judgment motions. The motions resulted in two opinions and orders, dated July 31, 2006, and May 30, 2007. The nature and disposition of most of the claims need not be described for purposes of this appeal.
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The present appeal is from the dismissal of all of Lugo’s ERISA claims in the second summary judgment order. … The entry of summary judgment for defendants is affirmed. Costs are awarded to defendants. Lugo-Velázquez v. Stiefel Labs., Inc.

07-1526 Delaney v. Bartee
Before Boudin, Chief Judge. Wallace,¹ Senior Circuit Judge, and Howard, Circuit Judge.
WALLACE, Senior Circuit Judge. John Delaney appeals from the district court’s order denying his habeas corpus petition. He argues that the prosecutor violated his constitutional rights under Doyle v. Ohio, 426 U.S. 610 (1976), by commenting on his decision to remain silent after arrest. The district court held that his claim was procedurally defaulted under the Massachusetts contemporaneous objection rule and therefore not subject to habeas review. On appeal, Delaney argues (1) that his claim was not procedurally barred, and (2) that the state court’s decision on the merits was contrary to or an unreasonable application of Supreme Court law. Delaney presents a colorable argument as to each of these claims. But the decisive issue before us is whether he has failed to demonstrate that the prosecutor’s comments “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (internal quotation marks omitted), quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946). … The district court’s denial of Delaney’s petition is AFFIRMED. Delaney v. Bartee.

1. Of the Ninth Circuit, sitting by designation. [↩]

07-1896 Dixon v. Shamrock Fin. Corp.
Before Howard, Circuit Judge, Stahl and Siler¹, Senior Circuit Judges.
HOWARD, Circuit Judge. Plaintiff Brian Dixon, for himself and a class, claims that defendant Shamrock Financial Corporation unlawfully accessed his credit report, in violation of the Fair Credit Reporting Act (”FCRA”), 15 U.S.C. § 1681. The district court granted Shamrock’s motion to dismiss, and Dixon now appeals. Guided largely by our recent ruling in Sullivan v. Greenwood Credit Union,___ F.3d ___, 2008 WL 726135, (1st Cir. Mar. 19, 2008), we affirm. … Dixon v. Shamrock Fin. Corp..

1. Of the Sixth Circuit, sitting by designation. [↩]

07-1796 ConnectU LLC v. Zuckerberg
Before Lipez, Circuit Judge. Selya and Siler,¹ Senior Circuit Judges.
SELYA, Senior Circuit Judge. Viewed broadly, this appeal concerns a bitter dispute about the parties’ rights in and to Facebook, a spectacularly successful creature of the information age. Viewed more narrowly, however, it presents a jurisdictional enigma that requires us to decide whether an amended complaint that switches the basis of the district court’s subject matter jurisdiction from the existence of diversity of citizenship, 28 U.S.C. § 1332(a)(1), to the existence of a federal question, id. § 1331, should be given effect when filed as of right before any jurisdictional challenge has been mounted. This is a question of first impression at the federal appellate level — and one that sets two established legal principles on a collision course.
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For the reasons that follow, we hold that the jurisdictional claim in the amended complaint warrants full consideration and constitutes a viable hook on which federal jurisdiction can be hung. Because this holding is at odds with the conclusions reached by the court below, we reverse the order of dismissal and remand for further proceedings consistent with this opinion. … ConnectU LLC v. Zuckerberg.

1. Of the Sixth Circuit, sitting by designation. [↩]

06-2632 Fernández-Vargas v. Pfizer
Before Lipez, Circuit Judge Baldock,¹ Senior Circuit Judge and Howard, Circuit Judge.
BALDOCK, Senior Circuit Judge. Vital to our resolution of this appeal is an understanding of the controversy’s extensive and convoluted procedural history. Our story begins in August 2003 when Luis Adorno-Cabán (Adorno) fatally shot Jaime Pagán-Avilés (Pagán). The unfortunate incident occurred while both men were working at Pfizer’s facility in Barceloneta, Puerto Rico. Pagán’s common law wife, Emma Fernández-Vargas (Fernández), and their minor son, C.J.P.F., survived him. Pagán also left behind E.P.S. and R.P.S., two minor daughters from his prior marriage to Anabel Sánchez-Valle (Sánchez). Pfizer is the Appellee in this appeal. Sánchez is the Appellant. Sánchez asserts the district court (1) lacked subject matter jurisdiction from the outset, (2) improperly dismissed her wrongful death cross-claim, (3) issued a judgment that was null and void, and (4) erroneously enjoined her from suing Pfizer in commonwealth court. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm. … Fernández-Vargas v. Pfizer.

1. Of the Tenth Circuit, sitting by designation. [↩]

06-2342 U.S. v. Politano
Before Torruella and Lynch, Circuit Judges, and Fusté¹ District Judge.
TORRUELLA, Circuit Judge. On May 3, 2006, Jermaine N. Politano pled guilty to engaging in the business of dealing in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A). At sentencing, Politano requested, and the Government recommended, a twelve-month term of incarceration. The district court calculated Politano’s Guidelines Sentencing Range (”GSR”) to be twelve to eighteen months, based on an offense level of 13, but proceeded to sentence Politano to twenty-four months’ incarceration. Politano now appeals his sentence. After careful consideration, we affirm the sentence. … U.S. v. Politano.

1. Of the District of Puerto Rico, sitting by designation. [↩]

07-1316 Five Star Transp., Inc. v. NLRB
Before Torruella, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge.
TORRUELLA, Circuit Judge. Petitioner Five Star Transportation, Inc. (”Five Star”) seeks judicial review of the decision of the National Labor Relations Board (”NLRB”) finding that it engaged in an unfair labor practice in violation of § 8(a)(1) of the National Labor Relations Act (”Act”) when it refused to hire, or even consider for hire, six school bus drivers who wrote critical letters and email messages to the Belchertown School District (”District”) in an effort to dissuade it from granting Five Star a bus services contract for the 2003 through 2006 school terms. After a thorough review of the record, we reject Five Star’s claims and enforce the NLRB’s decision. … Five Star Transp., Inc. v. NLRB.

07-1273 Cuko v. Mukasey
Before Torruella, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge.
LYNCH, Circuit Judge. Vllasi Cuko, a citizen and national of Albania, petitions for review of an order of the Board of Immigration Appeals (BIA), which affirmed an immigration judge’s (IJ) denial of his application for political asylum. … The petition for review is denied.
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CYR, Senior Circuit Judge (dissenting). Because the majority seriously misreads the appellate record, and particularly the agency’s two written decisions, I respectfully dissent. In deferring wholesale to the agency’s credibility determinations in these circumstances, the majority turns our review function into a hollow exercise in rubber-stamping. … Cuko v. Mukasey.

07-2257, 07-2258, 07-2259, In Re: New Motor Vehicles Canadian Export Antitrust Litig.
Before Torruella, Circuit Judge, Selya, Senior Circuit Judge, and Lynch, Circuit Judge.
LYNCH, Circuit Judge. This multi-district consumer action alleges a conspiracy by automobile manufacturers to illegally block lower-priced imports from Canada, which is alleged to have inflated the price of new cars sold in America. We granted this interlocutory appeal under Federal Rule of Civil Procedure 23(f) from the district court’s certifications of (1) a nationwide plaintiff class seeking injunctive relief under section 16 of the Clayton Act and Rule 23(b)(2), and (2) a class seeking damages under the antitrust and consumer protection laws of twenty states and Rule 23(b)(3). … We reverse the certification of the injunctive class under the Clayton Act for lack of a live controversy and order dismissal of the claim. Because there is no jurisdiction under the Clayton Act, we remand to the district court for determination of the several issues concerning the existence of federal jurisdiction. On the representation of the parties that there is diversity jurisdiction over at least some of the state damages claims, we review the certification of the damages classes. We vacate that certification; the district court is free to reconsider the class certification orders on a more complete record…. In Re: New Motor Vehicles Canadian Export Antitrust Litig.

07-1605 Alberto San, Inc. v. Consejo de Titulares del Condominio San Alberto
Before Torruella, Circuit Judge, Selya, Senior Circuit Judge, and Lynch, Circuit Judge.
LYNCH, Circuit Judge. This is an appeal from the district court’s dismissal of plaintiff’s complaint for lack of subject matter jurisdiction.
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The complaint was brought by Alberto San, Inc., an owner of a substantial interest in an office condominium, against the board and other owners of the condominium. The complaint alleged that a Puerto Rico statute, which decreased plaintiff’s original voting power in the condominium association, violated plaintiff’s due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. … We thus remand with instructions to revise the judgment to dismiss the federal claim with prejudice, to dismiss without prejudice the Puerto Rico law claim for unjust enrichment, and to deny the defendants’ motion for award of attorneys’ fees. Costs are awarded to the defendants. So ordered. Alberto San, Inc. v. Consejo de Titulares del Condominio San Alberto.

07-1479 U.S. v. Soares
Before Boudin, Chief Judge, Torruella, Circuit Judge, and Stahl, Senior Circuit Judge.
TORRUELLA, Circuit Judge. Michael Soares was the passenger in a car that the police stopped in a heavy crime area, late at night, for driving without headlights. During the course of the stop, Soares was removed from the car by the police and pat-frisked. A loaded hand-gun was found on his person. Soares argues that the police pat-frisked him in violation of the Fourth Amendment. Soares’s motion to suppress the hand-gun was denied by the district court, and he entered a conditional plea of guilty to being a felon in possession of a hand-gun under 18 U.S.C. § 922(g)(1). He now appeals the district court’s denial of his motion to suppress. After careful consideration, we affirm. … U.S. v. Soares.

07-1244 U.S. v. Girouard
Before Lynch, Circuit Judge, Stahl, Senior Circuit Judge, and Howard, Circuit Judge.
HOWARD, Circuit Judge. Margaret Girouard was convicted by a jury of one count of consumer product tampering in violation of 18 U.S.C. § 1365. On appeal, she claims the empanelment of the jury that convicted her was tainted by religious discrimination in violation of the Constitution. The district court implicitly found that Girouard had failed to establish a prima facie case that the prosecutor’s peremptory strike was motivated by discriminatory animus. Finding no clear error in this determination, we affirm the conviction. … U.S. v. Girouard.

06-2006, 06-2007 U.S. v. Page
Before Lipez, Circuit Judge, Cyr, Senior Circuit Judge, and Howard, Circuit Judge.
CYR, Senior Circuit Judge. Andre Page and Michael E. Green appeal from their judgments of conviction for possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and conspiracy, id. § 846. We affirm. … U.S. v. Page

07-1738 Tandayu v. Mukasey
Before Lynch, Lipez, and Howard, Circuit Judges.
LIPEZ, Circuit Judge. We are reviewing the denial by the Board of Immigration Appeals (”BIA”) of petitioner Benjamin Fransiskus Tandayu’s second motion to reopen a removal proceeding. The BIA concluded that the additional evidence submitted by Tandayu in support of this motion did not establish a change of conditions in Indonesia, his country of origin. We reject the petitioner’s assertions that the BIA abused its discretion and deny the petition for review. … Tandayu v. Mukasey.

07-1614 MRCo, Inc. v. Juarbe-Jimenez
Before Howard and Lipez, Circuit Judges, and Smith,¹ District Judge.
SMITH, District Judge. This diversity action originally was brought by MRCo, Inc.² (“MRCo”) against Banco Popular de Puerto Rico, Inc. (“Banco Popular”). MRCo later amended its complaint to name the Insurance Commissioner of Puerto Rico (“Commissioner”) as an additional defendant.³ After MRCo and Banco Popular reached a settlement and all claims between them were dismissed, MRCo moved for partial summary judgment on its claims against the Commissioner. The district court denied MRCo’s motion, and then dismissed the entire case on the ground that MRCo’s claims are barred by Puerto Rico law. This timely appeal followed, and we now consider whether MRCo’s claims should be resurrected. … Affirmed. MRCo, Inc. v. Juarbe-Jimenez.

1. Of the District of Rhode Island, sitting by designation. [↩]
2. The record reflects that MRCo’s parent corporation, ULLICO Inc., undertook at least some of the actions that preceded this litigation. For simplicity, however, we refer to MRCo and ULLICO collectively as “MRCo.” [↩]
3. At the time MRCo amended its Complaint, the Commissioner was Fermin Contreras Gómez. He was succeeded by Dorelisse Juarbe-Jimenez, who replaced him as co-defendant in March 2004. [↩]

07-1595 Rivera v. Pfizer Pharms., LLC
Before Lipez and Howard, Circuit Judges, and Smith,¹ District Judge.
SMITH, District Judge. This case presents as a so-called “regarded as” disability claim under the Americans with Disabilities Act (“ADA”). However, as the discussion below reveals, once the layers of argument are stripped away, the regarded as claim is revealed to be a chimera. Thus, the District Court’s grant of summary judgment, on reconsideration, as to the regarded as claim was appropriate, and the judgment is affirmed. … Rivera v. Pfizer Pharms., LLC.

1. Of the District of Rhode Island, sitting by designation. [↩]

07-1549 Mariasch v. Gillette Co.
Before Lipez, Circuit Judge, Cyr, Senior Circuit Judge, and Howard, Circuit Judge.
LIPEZ, Circuit Judge. In this diversity case, Mario O. Mariasch, a citizen of California, claims that The Gillette Company, his former employer and a Delaware Corporation, wrongfully rejected his attempt to exercise stock options that he acquired in 1995 and 1996 as part of his executive compensation package. After Mariasch retired from Gillette on April 22, 2002, he had three years to exercise these options pursuant to Gillette’s 1971 Stock Option Plan (”Stock Option Plan”). Mariasch tried to exercise the options seven days after the three-year period lapsed and was rebuffed by Gillette. He now argues that principles of contract law and equity required Gillette to accept this late exercise.
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The district court granted summary judgment for Gillette, primarily on the authority of our decision in First Marblehead Corp. v. House, 473 F.3d 1 (1st Cir. 2006), where we held that Delaware law requires the strict application of the terms and conditions of a board-approved stock option plan. We agree with the district court’s analysis and affirm its grant of summary judgment. … Mariasch v. Gillette Co.

07-1208 Geiger v. Foley Hoag LLP Ret. Plan
Before Lipez, Circuit Judge, Cyr, Senior Circuit Judge, and Howard, Circuit Judge.
HOWARD, Circuit Judge. The genesis of this appeal is a contentious Massachusetts divorce. As part of the distribution of marital property, a state court judge assigned a portion of David Geiger’s interest in three retirement plans to his (now ex) wife, Karen Leeds. In addition to exhausting his state court appeals of the divorce order, Geiger filed suit in federal court against the retirement plans and their administrator,¹ seeking to permanently enjoin the plans from transferring Geiger’s interests to Leeds. After Leeds successfully moved to intervene in the suit, she filed a motion to dismiss, which the district court granted pursuant to the Rooker-Feldman doctrine. On appeal, Geiger contends that the district court first erroneously allowed Leeds’s intervention, and then incorrectly granted the motion to dismiss. We affirm, albeit for reasons different than those cited by the district court. … Geiger v. Foley Hoag LLP Ret. Plan.

1. 1The original defendants were Foley Hoag LLP Retirement Plan, Foley Hoag LLP Savings and Retirement Plan, and Foley Hoag LLP Money Purchase Pension Plan (collectively, “the plans”). Foley Hoag is also named separately as the plans’ administrator. They remained as defendants after Leeds’s intervention. Geiger, appearing pro se in this action, is a litigation partner at the Foley Hoag law firm in Boston. For ease of reference we will refer to the firm as “Foley.” [↩]

05-2114, 06-2157 U.S. v. Jaca Nazario
Before Howard, Circuit Judge, Selya, Senior Circuit Judge, and Dyk,¹ Circuit Judge.
HOWARD, Circuit Judge. Carlos Jaca Nazario (”Jaca”) pled guilty to conspiring to transport cocaine in two separate criminal cases. He was sentenced by a different judge for each plea. He makes a variety of claims on appeal, some directed at one sentence, some at the other, and some at both. Because we find that the district court erred in its determination of whether the conduct underlying each case was, in the parlance of the federal sentencing guidelines, “relevant conduct” as to the sentencing of the other, we vacate both sentences and remand for resentencing. … U.S. v. Jaca Nazario.

1. Of the Federal Circuit, sitting by designation. [↩]

07-2476 Puerto Rico Ass’n of Physical Med. and Rehab. v. U.S.
Before Boudin, Chief Judge, Lynch, Circuit Judge, and Keenan,¹ Senior District Judge.
BOUDIN, Chief Judge. The Puerto Rico Association of Physical Medicine and Rehabilitation (”PRAPMR”) is a group of medical doctors practicing in Puerto Rico. It, and several doctors and patients, sued to challenge a regulation restricting Medicare reimbursement for physical therapy services. The district court dismissed the case, relying on statutory provisions that preclude all actions “brought under section 1331 or 1346 of Title 28 to recover on any claim arising under” the Medicare Act. 42 U.S.C. §§ 405(h), 1395ii (2000). This appeal followed. … Affirmed. Puerto Rico Ass’n of Physical Med. and Rehab. v. U.S..

1. Of the Southern District of New York, sitting by designation. [↩]

07-2164 U.S. v. Piesak
Before Lipez and Howard, Circuit Judges, and Besosa,¹ District Judge.
HOWARD, Circuit Judge. After a three-day trial, a jury convicted Diana Piesak of attempting to manufacture ecstasy in violation of 21 U.S.C. § 846. The district court sentenced Piesak to 18 months’ imprisonment and two years’ supervised release. In this appeal, Piesak argues that the evidence was not sufficient to support a conviction. We disagree. Evidence presented at trial showed that Piesak: (1) acquired ingredients necessary to manufacture ecstacy; (2) researched, obtained, and actively studied ecstasy recipes; and (3) acquired, assembled and tested equipment used to manufacture ecstacy. This evidence was sufficient to support the conviction. … U.S. v. Piesak.

1. Of the District of Puerto Rico, sitting by designation. [↩]

07-1658 Lin v. Mukasey
Before Lynch, Circuit Judge, John R. Gibson,¹ Senior Circuit Judge, and Howard, Circuit Judge.
JOHN R. GIBSON, Senior Circuit Judge. Qun Lin, a native and citizen of the People’s Republic of China, petitions for review of an order of the Board of Immigration Appeals denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture. Qun Lin contends that the BIA arrived at an adverse credibility finding that was not supported by substantial evidence. We deny the petition. … Lin v. Mukasey.

1. Hon. John R. Gibson, of the Eighth Circuit, sitting by designation. [↩]

06-2550 U.S. v. Colón-Díaz
Before Torruella and Howard, Circuit Judges, and Smith,¹ District Judge.
TORRUELLA, Circuit Judge. A jury convicted Edwin Colón-Díaz (”Colón”) on five counts of drug offenses under 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. He appeals these convictions, claiming that the district court committed a number of errors that, in the aggregate, constituted reversible error under the cumulative error doctrine articulated in United States v. Sepúlveda, 15 F.3d 1161, 1196 (1st Cir. 1993). After thoroughly reviewing the record and considering the parties’ arguments, we affirm Colón’s convictions. … U.S. v. Colón-Díaz.

1. Of the District of Rhode Island, sitting by designation. [↩]

06-1058, 06-1060, 06-1061 U.S. v. Lachman
Before Boudin, Chief Judge, Selya, Senior Circuit Judge, and Howard, Circuit Judge.
BOUDIN, Chief Judge. This case, arising from defendants’ convictions on charges of violating and conspiring to violate the Export Administration Act of 1979 (”EAA”) and its implementing regulations, is before us for the third time. The facts and earlier procedural history are recounted in United States v. Lachman, 387 F.3d 42, 46-49 (1st Cir. 2004) (”Lachman II”); United States v. Lachman, 48 F.3d 586, 588 (1st Cir. 1995) (”Lachman I”); and United States v. Lachman, 278 F. Supp. 2d 68, 73-74 (D. Mass. 2003). … Now before us are Lachman’s claims that the jury’s verdict was not supported by sufficient evidence of his scienter and that the district court erred in denying his motion for a new trial based on the alleged Rule 44(c) violation. In addition, Lachman and the corporate defendants appeal from the denial of their motion for a new trial based on their proffer of newly discovered evidence, including the supposed Brady evidence. We discuss the sufficiency claim first, then the new evidence and Brady issues and finally the claim based on Rule 44(c). … Affirmed. U.S. v. Lachman.

07-1992 Wheeler v. Blumling
Before Torruella, Circuit Judge, John R. Gibson, Senior Circuit Judge,¹ and Lipez, Circuit Judge.
JOHN R. GIBSON, Senior Circuit Judge. Ryan T. Blumling appeals from the district court’s entry of summary judgment against him in favor of D. Bruce Wheeler, on Wheeler’s claim for breach of a guaranty agreement. Blumling contends that he has two defenses to liability on the guaranty: frustration of purpose of the contract and modification of the guaranty by oral agreement. We affirm the judgment of the district court. … Wheeler v. Blumling.

1. Of the Eighth Circuit, sitting by designation. [↩]

06-2532 U.S. v. Rogers
Before Lipez and Howard, Circuit Judges, and Oberdorfer,¹ Senior District Judge.
OBERDORFER, Senior District Judge. Roy Lewis Rogers appeals his conviction and sentence for one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He challenges the district court’s denial of his motion to suppress evidence, arguing that the police exceeded the scope of their search warrant authorizing them to search for “photos of [a minor child]” when they seized and later viewed a videotape. He also contends that pursuant to § 5G1.3(b) of the federal Sentencing Guidelines, the district court should have ordered his entire federal sentence of imprisonment to run concurrently to his undischarged state sentence. Finding no error in the denial of Rogers’ motion to suppress or at sentencing, we affirm. … U.S. v. Rogers.

1. Of the District of Columbia, sitting by designation. [↩]

07-1365 Damon v. Moore
Before Torruella and Howard, Circuit Judges, and Delgado-Colón,¹ District Judge.
DELGADO-COLÓN, District Judge. Plaintiff-appellant, Sergeant Peter J. Damon (“Damon”), a former Sergeant in the Army Reserves, appeals from the dismissal of his defamation claim stemming from the non-consensual use of an interview he conducted for NBC Nightly News (“NBC”) in the documentary “Fahrenheit 9/11” (“documentary”). According to Damon, defendants-appellees (“Appellees”), and more specifically, Michael Moore (“Moore”), the creator, writer, director, producer and narrator of the documentary, portrayed Damon as supporting the documentary’s anti-war and anti-Commander-in-Chief message by using and placing in the documentary, without his consent, a sixteen-second segment of an interview he previously conducted with NBC. In dismissing the defamation claim, the district court found that Damon’s appearance in the documentary was not reasonably susceptible of a defamatory meaning/interpretation. For the following reasons, we affirm the dismissal.² … Damon v. Moore.

1. Of the District of Puerto Rico, sitting by designation. [↩]
2. While the complaint contained, and the District Court dismissed, numerous other causes of action, the only issue before us is the dismissal of Damon’s defamation claim. [↩]

07-1190 U.S. v. Belton
Before Lynch, Circuit Judge, Campbell and Selya, Senior Circuit Judges.
CAMPBELL, Senior Circuit Judge. Appellant Bruce Belton appeals from his convictions for drug trafficking, drug conspiracy, and multiple weapons charges following a jury trial in the United State District Court for the District of New Hampshire. Belton challenges the court’s denial of his motion to suppress evidence of drugs, weapons and cash found in his Franklin, New Hampshire residence on the ground that the affidavit submitted in support of the request for the search warrant contained material omissions. Belton also contends that the court violated the Speedy Trial Act. We affirm the convictions. … U.S. v. Belton.

06-2776 Aragón-Muñóz v. Mukasey
Before Torruella, Lynch, and Lipez, Circuit Judges.
LIPEZ, Circuit Judge. Sergio Armando Aragón-Muñóz, a citizen of Guatemala, seeks review of the order of the Board of Immigration Appeals (”BIA” or “Board”) denying his motion to reopen his removal proceedings. On May 25, 2000, after Aragón-Muñóz failed to appear at a hearing on his removability and asylum claim, the Immigration Judge (”IJ”) ordered him removed in absentia. More than four years later, Aragón-Muñóz filed a motion to reopen on the ground that he had not received the Notice to Appear (”NTA”) because he had moved to Arizona. He further argued that even if he had received the NTA, the notice was insufficient because he was entitled to an oral warning in Spanish, his native language, of the consequences of failing to appear.
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The IJ denied his motion to reopen without issuing an opinion. Aragón-Muñóz appealed to the BIA, which remanded the case for a full explanation of the reasons for the denial. In response, the IJ entered a decision explaining that Aragón-Muñóz had failed to adduce any evidence that he had changed his address. The BIA affirmed, elaborating on the lack of evidence in the record. We deny Aragón-Muñóz’s petition for review. … Aragón-Muñóz v. Mukasey.

06-1983 U.S. v. Martin
Before Boudin, Chief Judge, Selya, Senior Circuit Judge, and Schwarzer,¹ Senior District Judge.
SELYA, Senior Circuit Judge. In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court shed considerable light on the scope and extent of a district court’s discretion under the now-advisory federal sentencing guidelines. See id. at 598-602. This appeal represents our first full-fledged application of the teachings of Gall. At the same time, it also affords us an opportunity to discuss a relatively new phenomenon: the practice indulged in by some district courts, of filing post-judgment, post-appeal sentencing memoranda. … U.S. v. Martin.

1. Of the Northern District of California, sitting by designation. [↩]