1st U.S. Circuit Court of Appeals Case Summaries: May 22, 2014.


Byline: Rhode Island Lawyers Weekly Staff Report

Editor's note: The full text of these decisions can be found on Lawyers Weekly's website, rilawyersweekly.com. Bankruptcy Appellate jurisdiction - Denial of plan confirmation Where the Bankruptcy Appellate Panel affirmed a U.S. Bankruptcy Court order denying confirmation of a 'hybrid' Chapter 13 plan, the debtor's appeal from the BAP ruling must be dismissed for lack of jurisdiction. "The finality of an order denying confirmation of a reorganization plan is the subject of a circuit split. ... "... An order of an intermediate appellate tribunal affirming the bankruptcy court's denial of confirmation of a reorganization plan is not a final order so long as the debtor remains free to propose an amended plan. The rejection of (debtor Louis B.] Bullard's plan plainly does not 'finally dispose of all the issues pertaining to a discrete dispute within the larger proceeding,' ... nor are the bankruptcy court's responsibilities on remand 'only ministerial.' ... . The bankruptcy court gave Bullard a thirty-day deadline to file an amended plan, a deadline that, on Bullard's motion, the court continued pending the outcome of his appeal. Once Bullard files a new plan, his creditors will have an opportunity to file objections and the bankruptcy court must determine whether to sustain those objections or confirm the new plan. 'Nothing about these tasks is mechanical or ministerial.' ... "... The clear rule we adopt today - an intermediate appellate court's affirmance of a bankruptcy court's denial of confirmation of a reorganization plan is not a final order appealable under s.158(d)(1) so long as the debtor remains free to propose an amended plan - promotes judicial efficiency and is faithful to the limitations that Congress has placed on our jurisdiction." In Re: Bullard, Louis B. (Lawyers Weekly No. 01-115-14) (15 pages) (Stahl, J.) (1st Circuit) Appealed from the Bankruptcy Appellate Panel for the 1st Circuit. David G. Baker for the debtor; Andrew E. Goloboy, with whom Ronald W. Dunbar Jr. was on brief, for appellee Hyde Park Savings Bank (Docket No. 13-9009) (May 14, 2014). Criminal Marijuana - Prescription Where a defendant convicted of marijuana possession has argued on appeal that the government failed to prove that he did not have a valid prescription, the government had no such burden of proof, so the argument must be rejected. The lower court did not err in enhancing the defendant's sentence four levels for possessing a gun in connection with felony drug trafficking. "Section 844 - a provision under the Controlled Substance Act ('CSA') forming the basis of (defendant Levell] Matthews's marijuana-possession conviction - pertinently provides that '(i]t shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice.' 21 U.S.C. s.844(a)(1) (emphasis added). Matthews reads the 'unless' clause as requiring the government to prove that he did not have a valid marijuana prescription. But another statute that he does not mention or cite - 21 U.S.C. s.885, titled 'Burden of proof; liabilities' - undoes his theory. "Subsection (a)(1) of s.885 - titled 'Exemptions and exceptions; presumption in simple possession offenses' - declares in relevant part that '(i]t shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter in any .... indictment ... or in any trial ... and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.' Subsection (a)(2) adds that in s.844(a) prosecutions 'any label identifying such substance ... shall be admissible in evidence' and that the label 'shall be prima facie evidence that such substance was obtained pursuant to a valid prescription from a practitioner.' "The precise issue Matthews raises is not one we have faced before. ... "... (W]hat ultimately seals Matthews's fate is a line of cases from other circuits expressly holding - based on a plain reading of the statutory text - that s.844(a)'s 'unless' clause 'establishes a defense' for 'the accused' to raise 'rather than an element of the offense' for the government to prove. ... "A principle animating these cases is that a contrary ruling would blot out s.885(a)(2). ... Matthews offered no prima facie evidence, we must say. Anyway, accepting his argument would mean forcing the government to 'negate' the...

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