Appellate Review

Split Noted: Can one unduly influence a non-existent minor?

2009-10-06T08:10:00.005-05:00

Per United States v. Faris, 2009 WL 3011047 (11th Cir. Sept. 23, 2009)

Charles Faris met an undercover police officer posing as a mother of two young girls in a chat room titled "open minded parents." After Faris arranged to meet the mother and daughters in person, he was convicted of violating 18 U.S.C. § 2422, using a facility of interstate commerce to entice a minor to engage in sexual activity. U.S.S.G. § 2G1.3(b)(2)(B) increases the base offense level if "a participant otherwise unduly influenced a minor to engage in prohibited sexual conduct."

Relying on binding circuit precedent,United States v. Murrell, the Eleventh affirms the application of the enhancement even though Faris never talked with a minor, only the fictitious minor's parent. (The statute defines minor as including a fictitious person who a cop had told a participant about.) Murell had reasoned that "the efficacy of § 2422(b) would be eviscerated if a defendant could circumvent the statute simply by employing an intermediary to carry out his intended objective."

The Eleventh noted that the Sixth and Seventh Circuits had come out the other way, with the Sixth Circuit reasoning that "The dictionary definition of "undue influence" suggests, by its reference to affecting the mind or action of another, that there must be an actual person who is affected in some way. An undercover law enforcement officer who is not at all persuaded in thought or in deed, therefore, cannot be 'unduly influenced.'"

I am more persuaded by the CA6 and CA7's reasoning. The effectiveness of the statute would not be impaired, contra Murell, because all that is at issue is a sentencing factor, not an element of conviction.

More importantly, the Sentencing Commission was also more persuaded by their reasoning. In May, they adopted an application note to the effect that "subsection (b)(2)(B) does not apply in a case in which the only ‘minor’ involved in the offense is an undercover law enforcement officer."

The CA11 acknowledges the amendment, but notes that it is not effective until November. Until then, Congress could change the Commission's proposed amendment, and the Eleventh Circuit panel is still bound by previous panel precedent. All of this is true, so I think the panel did the right thing in affirming.

I just wonder whether the result would have been the same had a CA2, CA7 or CADC panel been in the exact same situation. These circuits, whether by local rule or custom, have a different approach to precedent than the others. In the CA2,7, and DC, a panel may overrule prior precedent without the necessity for an en banc court. The panel must just pre-circulate its opinion to the court.

In the Seventh Circuit, if a judge of the court disagrees with the new position, they must request rehearing en banc, and a majority of the court must vote for rehearing in order to prevent the new opinion (and overruling of old precedent) from becoming law. In other words, the system has a bias for the new opinion (requiring a majority vote to prevent overruling), rather than for the old opinion (requiring a majority vote to go en banc to potentially overrule it).

Had this case arose in the Seventh Circuit, I could certainly see a panel saying -- yes, we had held the enhancement applicable in the past. But other circuits have disagreed with us, and the Sentencing Commission has weighed in on their side. Given all this, we overrule our precedents and find that Faris did not unduly influence a child.

Split Created: What crime is neither a felony nor a misdemeanor?

2009-10-05T00:40:00.000-05:00

Per United States v. Cohn, 2009 WL 3110775 (11th Cir. Sept. 30, 2009)

Criminal contempt. In a well-reasoned and short per curiam, the Eleventh declares that criminal contempt, 18 U.S.C. § 401, is a new category of crime, neither felony nor misdemeanor. The new category: sui generis.

Equity certainly favors the Eleventh's position, but the law does not.

Here's the statutory scheme. 18 U.S.C. § 401 criminalizes contempt of court (misbehavior, disobediance, resistance, et c.), but does not provide a maximum punishment or classification for the offense. 18 U.S.C. § 3559(a) states that an unclassified offense with the potential for life imprisonment is a Class A felony. So it would seem like criminal conspiracy is a class A felony, since it lacks a maximum term.

The problem is that contempts can be trivial, whereas Class A felonies are always serious. So the Eleventh hangs its hat on stray Supreme Court language declaring the offense "sui generis," and affirmatively holds (for what I imagine is the first time in recent history) that a crime can be neither a felony nor a misdemeanor.

The CA11 splits from the CA9, the only other circuit to have confronted the classification of contempt in a published opinion. The Ninth Circuit had previously held that contempt was a class A misdemeanor based on the Guideline term for obstruction of justice, the most analogous offense. As to this, the Eleventh reasons the Ninth's "method does not address how to classify criminal contempt if a sufficiently analogous guideline is absent. More importantly, maximum penalties are established by statute, not the Sentencing Guidelines."

Much though I like this result (and the opinion), I have to disagree with the reasoning. Congress gets to create and classify crimes. If the legislature decided to make entering a quarantine area without permission (42 U.S.C. §271(a)) a Class A felony, it could do so and courts would be obligated to comply despite stray Supreme Court language stating that regulatory offenses are generally minor.

Here, contempt clearly falls within 18 U.S.C. § 3559(a)'s definition of Class A felony, and there is no statutory exception. The best way to achieve equity, while not overly stretching the law, would be for courts to rely on the factors in 18 U.S.C. § 3553 to account for trivial contempts, and for Congress to fix the problem, i.e., itself declare contempt sui generis.

I'm Ba-ack

2009-09-05T20:20:00.001-05:00

Kind of. My clerkship is over, and has been for a bit. But my next job doesn't start for another month. I am planning on relaxing and travelling for the next month, but will return to the game in mid-October. Hope the last year has been good for you all, if any of you are still out there.....

Discontinued Until Further Notice (2009)

2008-05-29T21:51:00.000-05:00

Canon 4 of the Code of Ethics for Judicial Employees requires me to consult with my Judge regarding the appropriateness of blogging related to the law. After our conversation, I decided that to continue summarizing other cases might create the appearance of impropriety when the same issues could arise before my chambers. Clerks, like Caesar’s wife, must be beyond reproach.

While I could continue to blog until I start work this fall, I would rather avoid that appearance all together. Therefore, I am discontinuing this blog until after my clerkship ends, at some point in 2009. Thank you to the readers, and to those who have so graciously helped my readership grow.

I am leaving this blog up both because I hope to return, and so that the sidebar remains active to return the favor. If someone wishes to join this blog to write similar case summaries, I would also be interested in that, as I do not believe a passive association with the writing would create any negative appearance -- I would be in the same position as if I was reading a HLR case comment.

Split Widened: Is Simple Battery a Crime of Physical Force?

2008-05-22T00:42:00.000-05:00

Per United States v. Hays, 2008 WL 2108079 (10th Cir. May 20, 2008)

Steven Daniel Hays was convicted of simple battery under Wyoming law in 2003. The Wyoming statute criminalized “unlawfully touch[ing] another in a rude, insolent or angry manner or intentionally, knowingly or recklessly caus[ing] bodily injury to another.” He was then indicted for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. Under the federal statute, the previous conviction must have “as an element, the use or attempted use of physical force”. 18 U.S.C. § 921(a)(33)(A). The question in this case is whether the first part of the Wyoming statute – touching another in a rude manner – meets this requirement; because the majority holds that it does not, it did not reach the second part of the statutory definition.

The majority opinion, authored by Judge Seymour, finds that it does not. She holds that physical force, as used in the federal statute, means more than mere physical contact. Rather, “some degree of power or violence must be present”. Judge Seymour candidly notes that the circuits have split on this issue, with the CA 7,9 agreeing and the CAs 1,8, 11 all holding that rude or insolent touching does satisfy the federal requirement of physical force.

Judge Ebel cites these cases in his cogent dissent. He notes that the Wyoming statute does not criminalize mere touching, but rather “rude, insolent or angry” touching – precisely those kinds likely to lead to an escalation of violence. He openly encourages the Supreme Court to resolve the split in note four of his dissent. It will be interesting to see if the United States takes him up on the invitation

Welcome Back

2008-05-22T00:16:00.000-05:00

The last month has been incredibly busy for me. I attended a college reunion as well as beach week. I finished a sports season, in which my team made it to the sweet sixteen round of the national playoffs before losing by one goal. Finally, and most importantly, I am now engaged.

I made the obvious choice to leave off blogging in the interim. I now rejoin the debate, rejuvenated by my time off. There has been much going on in my time off. I wanted to mourn the passing of my main inspiration – Decision of the Day. Robert Loblaw has performed a great service for almost three years, and deserves much more than the humble praise that I can offer. I also intend to respond, albeit belatedly, to Feddie’s call for ideas.

For now though, I will return to my main occupation – discussing appellate opinions that create or note circuit splits. It is my hope that my regular readers will rejoin me in due course. Please, as always, feel free to drop me an email regarding this blog’s coverage or your interest.

Split Widened: Is Consular Notification (Or Notification Of the Availability Consular Notification) An Actionable Individual Right?

2008-04-25T09:48:00.000-05:00

Per Mora v. People of N.Y., 2008 WL 1820836 (2d Cir. Apr. 24, 2008)

Medellin made waves when came down, but it turns out the Supreme Court in that case (as with others before it) did not decide an issue that had split the circuits: Whether the Vienna Convention’s provision requiring police officers to notify detainees that they could communicate with their consulate. Instead a majority of the court Court assumed, without so holding, that the Vienna Convention did so. The Circuits have split on this issue. The CAs 4,5,6,9, and now 2 hold that the Vienna Convention does not create judicially-enforceable rights, whereas the CA 7 holds that it does. The separate question of whether the Vienna Convention is self-executing was not raised in this case.

Article 36(b) provides: “if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;”

The CA 7 says that this language is clear that it creates an individually enforceable right; how else can you read “of his rights.” Moreover, the CA 7 argues, this is clearly not a right conferred on the sending State, because its exercise depends on the request of the detainee. As final support for its position, the CA 7 looks to State Department circulars, and DOJ regulations referring to Article 36 as providing an individual right.

The CA 2 disagrees, noting that the obligation to inform a detainee of his rights is, itself, never phrased as a right; nor does this or any other provision of the Vienna Convention state whether private individuals can pursue judicial enforcement of the treaty in the domestic courts of the States-party. The CA 2 also relies on the Preamble to Article 36 and the Convention as a whole, which disclaim any purpose to benefit individuals. Finally, the State Department submitted an amicus brief in conjunction with the Department of Justice urging the conclusion that the Convention does not confer a judicially-enforceable individual right. The CA 2 says the views of the Executive concerning treaty interpretation are entitled to great deference.

As an interesting aside, the panel requested the United States to provide information regarding other states’ practices with regards to private suits for money damages for violations of Article 36. 91 countries replied, 90 of which do not permit such suits to go forward. In addition, the State Department informed the panel that only a handful of countries had interpreted Article 36 as providing an individual right. The opinion does not state, however, how many of the countries had interpreted the Article the other way (i.e. if the handful was 100% or 10% of the countries to have considered the question). Such state practice is meaningful in the interpretation of treaty obligations.

Split Created: Is Claim-Splitting Permitted By The Contract Disputes Act?

2008-04-24T10:00:00.000-05:00

Per Phillips/May Corp. v. United States, 2008 WL 1808548, *5-*9 (Fed. Cir. Apr. 23, 2008)

Now I have truly covered every circuit. Phillips/May was awarded a contract to design and construct a Religious Ministry Facility at a military base. It completed the project over a year and a half late, after various contract modifications were made. A month after completing work, Phillips/May submitted ten claims to the Contracting Officer. The officer failed to act on any of these claims, and this inaction constituted an appealable rejection after sixty days. Phillips appealed nine of the ten claims the Armed Services Board of Contract Appeals Ultimately, the parties entered into a global settlement agreement with respect to the nine claims, and the Board entered judgment to that effect.

Six months later, Phillips/May appealed the denial of the tenth claim to the Court of Federal Claims. After the suit was filed, the Contracting Officer offered a determination that Phillips/May was collaterally estopped from raising this claim separate from the other nine claims which arose out of the same set of transactional facts. The question in this appeal is whether the unique procedures of the Court of Federal Claims and public contract disputes permit claim-splitting without raising issues of res judicata, contrary to the general procedure of civil actions.

41 U.S.C. § 609(d) suggests that claim-splitting is permitted in contract actions: “If two or more suits arising from one contract are filed in the United States Court of Federal Claims and one or more agency boards,” the Court of Federal Claims may consolidate them in the interests of justice. This provision does envision separate suits arising from the same contract, and would seemingly resolve this case.

Judge Dyk, on behalf of a unanimous panel, however, notes that this provision does not clearly state that the splitting of all claims, as opposed to transactionally unrelated claims, is permissible. Relying on this ambiguity, this panel of the Federal Circuit then turns to the drafting and legislative history of the Contracts Dispute Act. Congress specifically included, considered, and finally eliminated statutory language which would have expressly permitted claims-splitting between fora. The panel concludes that this rejection implies that Congress intended for claim preclusion to apply with its normal force. The panel does recognize, in a footnote, that it is creating a circuit split from the CA 6.

I think that the Federal Circuit in this case gets Congress’s intent 100% right, and the language of the statute 100% wrong. The manufactured ambiguity just isn’t there. The statutory section permits separate suits “arising from one contract,” meaning separate suits that arise from similar facts. It will be interesting to see what happens if Phillips/May pursues certiorari – an issue of statutory interpretation on which the circuits are split and that governs the jurisdiction of courts when reviewing public contracts seems important enough... Then again, the split is largely irrelevant because almost all these cases go to the Federal Circuit.

Fun: What Frequently Cited Law Review Article Has Had The Biggest Influence In The Courtroom?

2008-04-23T09:12:00.000-05:00

This blog has previously discussed what popular television show has appeared most frequently in the pages of the Federal Reporter. Prompted by this recent trivia post at PrawfsBlawg, I decided to see if the law review articles that had a major effect within academia also had a similar effect outside the ivory tower, more specifically, in the courtroom.

I selected the top thirty articles as listed on PrawfsBlawg and described in Fred Shapiro’s 1996 law review article. Some of these articles were too old to be included in the Westlaw database themselves, so I could not use the citing references tool. Instead, I structured a search looking for the author’s last name within a paragraph of the title within a paragraph of one of the journal identifiers within a paragraph of the year of publication. For example, the search for the law review article most cited in other articles was: Coase /p “The Problem of Social Cost” /p Econ! /p 1960. I performed this search within the allcases and cta databases of Westlaw separately.

My table of results can be found here (PDF). Looking at the data, three quick conclusions came to mind. First, it is good to be a Justice – even your academic writings are frequently cited in court materials. The top two articles were published over a century ago, and only three of the top ten were published after 1970. Four of the top five also deal with issues of individual rights, whereas the fifth deals with the study of law as a science. These facts lead to the second conclusion – law review articles were more influential in the past, when they dealt with black-letter law. For more on this phenomenon, see here (NY Times article), here (Volokh discussion and linkwrap), and here (.PDF study). The final conclusion is not all that surprising. Some of the articles which have proved the most influential in the academy have not been able to reach outside the ivory tower and into the courtroom. (This author thinks that might be for the better).

Splits Noted: Issues concerning the Piracy of Encrypted Satellite Television Signals

2008-04-22T14:04:00.000-05:00

Does 47 U.S.C. § 605(e)(4) Apply to end-users of Piracy Devices?
Does a District Court Have Discretion Not To Award Damages For Piracy of an Encrypted Satellite Signal Under the Wiretap Act?

Per DIRECTV, Inc. v. Rawlins, 2008 WL 1777856, *7-*10 (4th Cir. Apr. 21, 2008)

With the coverage of this case, this blog has now covered a case from every circuit court capable of creating or noting a circuit split. It has also had visitors from every inhabited continent, and over 1,300 unique visitors. The most visitors continue to come from the U.S. Courts. I want to thank again those who have helped me start up, particularly Appellate Law & Practice, California Blog of Appeal, Decision of the Day, Obsidian Wings, Sentencing Law & Policy, and Southern Appeal. Please visit those blogs (links on the side) to help me thank them.

DIRECTV has been vigilant in pursuing actions against those who pirate its satellite television signal, instituting legal action against more than 25,000 defendants (see here). It commenced the instant action against defendant Rawlins after discovering evidence that he had purchased five devices enabling Rawlins to watch DIRECTV programming without paying for a subscription. DIRECTV alleged violations of the Cable Act and the Wiretap Act. After Rawlins failed to appear, DIRECTV moved for default judgment including a permanent injunction, statutory damages, attorneys’ fees, and costs. The district court granted summary judgment, entered an injunction, awarded DIRECTV costs and fees, but denied statutory damages under either Act. DIRECTV only appealed the denial of damages under the Wiretap Act.

Nonetheless, Judge Duncan considers the history and provisions of both acts as they apply to this case. The Cable Act proscribes the unauthorized reception of an encrypted satellite signal by end users, 47 U.S.C. § 605(a), and the manufacture, assembly, modification, importation, exportation, sale, or distribution of piracy devices or equipment, 47 U.S.C. § 605(e)(4). The former provision is punishable by statutory damages of not less than $1,000 and not more than $10,000, whereas the latter provision is punishable by statutory damages of not less than $10,000 and not more than $100,000. 47 U.S.C. § 605(e)(3)(C)(i)(II). Any award of damages is subject to the discretion of the district court.

The panel, unanimous on this point, notes that the circuits have split on the question of whether § 605(e)(4) may be applied to end-users (CA 4,5) or is limited to upstream manufacturers (CA 9, several district courts). In this case, the district court denied summary judgment to DIRECTV on its claim under § 605(e)(4), finding that that section was limited to upstream manufacturers. Even though the trial judge did not mention the contrary Fourth Circuit precedent on this issue, the panel does not address it because DIRECTV did not appeal the failure to award damages under the Cable Act.

Pirating a satellite signal also violates the Wiretap Act, which forbids the interception of any wire, oral, or other electronic communication. 18 U.S.C. § 2511(1)(a). Like the Cable Act, the Wiretap Act provides a civil remedy to those harmed by violations of its provisions. 18 U.S.C. § 2520. The statute provides for mandatory damages for the piracy of non-encrypted satellite communications in an amount ranging from $50-$1000. 18 U.S.C. § 2520(c)(1). For the theft of encrypted satellite communications, the statute provides for discretionary statutory damages in amount of $10,000 or $100 per day for each day of violation, whichever is greater. 18 U.S.C. § 2520(c)(2).

As this case concerns the piracy of DIRECTV’s encrypted signal, the latter provision applies. Judge Duncan notes that, despite the statute’s permissive language (“may”), the circuits have split over whether the award of damages under § 2520(c)(2) is discretionary. The CAs 4,6,8,11 all hold that it is discretionary, whereas the CA 7 requires a court to award damages.

Having thus concluded that the decision to award damages under either act lies within a district court’s discretion, the panel concludes the trial judge in this case abused his discretion by considering legally irrelevant factors. It therefore remands to the district court to consider whether damages under the Wiretap Act would be appropriate in light of the relevant concerns.

Split Widened: Does The Petroleum Marketing Practices Act Permit Claims For Constructive Non-Renewal of Franchise Agreements?

2008-04-22T11:48:00.000-05:00

Per Marcoux v. Shell Oil Prods. Co. LLC, 2008 WL 1759157, (1st Cir. Apr. 18, 2008)

Eight Shell franchisees brought suit against Shell for violations of the Petroleum Marketing Practices Act (PMPA). In 1998, Shell transferred franchise agreements to Motiva, a joint venture with Texaco and Star Enterprises. Motiva then changed the rent provisions in the contract, which included a discount based on the amount of gasoline sold above a threshold. This subsidy had been in effect since 1982, although the threshold and discount amount had changed from time to time. The terms of the subsidy explicitly provided for cancellation on thirty days notice, but various representations were made to the franchisees that the subsidy would always exist. Motiva ended the subsidy entirely in 2000, and offered new leases with higher rent. The dealers signed the new leases under protest, and then filed the instant suit.

The First Circuit upholds the jury verdict that cancellation of the subsidy amounted to constructive termination of franchise contracts. It overturns the jury’s finding that the new leases constituted constructive non-renewal in violation of PMPA. The unanimous panel notes that the circuits have split on whether the PMPA even permits constructive non-renewal claims (CA 9), or instead requires a franchisee to receive a notice of non-renewal (CA 5,7, and now 1). Judge Howard finds that the franchisee’s ratification of the new leases precludes any claim of constructive non-renewal. He expresses some discomfort with this result, but finds that it is what the language of the statute requires.

As Appellate Law & Practice notes, this opinion is also notable for those interested in civil procedure as well as gas-gouging. The court permitted substitution of the plaintiffs after the statute of limitations had run by relating the claims back to the original suit. The court also found that Shell did not exercise good faith in setting its prices.

Split Noted: Can Events After the Filing of a Class Action Suit Affect Its Removal?

2008-04-22T10:50:00.000-05:00

Per Springman v. AIG Marketing, Inc., 2008 WL 1722153, *3 (7th Cir. Apr. 15, 2008)

In July 2003, Plaintiff Springman filed a class action suit in an Illinois state court against AIG Claim Services, Inc, alleging fraudulent claims processing. AIG Claim Services responded to an interrogatory in December 2003 by stating that it had not handled Sprigman’s claims. Almost a year later, Springman finally asked who handled his claim and was informed that the processor was AIG Marketing, Inc. Finally, Springman amended his complaint to aid AIG Marketing and drop AIG Claim Services almost three years after discovering that AIG Marketing was responsible for the allegedly fraudulent claims processing.

In between the suits initial filing and the amended complaint, however, Congress passed the Class Action Fairness Act, which allows removal of some class actions to federal court despite the lack of complete diversity. This act applies to any suit commenced on or after the Act’s effective date. The question is whether the substitution of the parties constitutes a ‘commencement’ of a suit against AIG Marketing within the meaning of the CAFA.

Judge Posner, on behalf of a unanimous panel, notes that the circuits are split on this issue. The majority (the CAs 5,6,7,8,10) hold that actions after the filing of a suit can affect removal, whereas the CA 9 only looks to the suit as initially filed. The majority school does apply the ‘relation-back’ doctrine to determine if the substitution of parties (or other changes) so relates back to the initial suit as not to commence a new suit. That doctrine does not apply here because of Plaintiff Springman’s inexplicable delay in amending his complaint. Therefore, the substitution of the parties commenced a new suit, which can be removed under the CAFA.

Split Widened: Does The Mailbox Rule Apply In Tax Cases?

2008-04-21T19:38:00.000-05:00

Per Phila. Marine Trade Ass’n-Int’l Longshoremens’ Ass’n Pension Fund v. Comm’r., 2008 WL 1722730, *16-*33 (3d Cir. Apr. 15, 2008)

The Pension Fund collects contributions under various collective bargaining agreements between the trade association and locals of the Longshoremens’ unions. It is required to remit payroll and income taxes to the IRS from the moneys it distributes. In 2001, the IRS notified the O’Neill, the company in charge of administrating the Fund, of various filing errors, and assessed a levy against the Fund. This levy was only discovered by O’Neill during an audit 2003, after the employee who had received the notification had left the company. O’Neill then mailed two requests for a refund, but only has a record of the mailing on June 13, 2003. The IRS has no record of receiving either letter.

The Fund, O’Neill, and the IRS held various discussions throughout the summer. After these negotiations failed to produce an agreement, the Fund formally filed for (how’s that for alliteration) a refund in September 2003. The IRS refunded a portion of the levy, but declined to refund the full amount because the statute of limitations to request a refund on the remainder expired on June 25, 2003.

The common-law mailbox rule is that if a document is properly mailed, a court will presume that it was delivered to the addressee in the usual time. Section 7502 of the Internal Revenue Code makes the date of the postmark of any tax filing the equivalent delivery date. In effect, this section speeds up the common-law mailbox rule – instead of delivery in the usual time, this section authorizes an assumption of instantaneous receipt. Subsection c, which only applies to § 7502, makes registered mail prima facie evidence of delivery at the time of the postmark.

The question is whether Congress intended this section to entirely preempt the common law mailbox rule, or merely to provide additional protections. Judge Ambro, on behalf of a unanimous panel, holds that where, as in this case, the taxpayer does not need to rely on § 7502 and has offered external evidence of mailing, the common-law mailbox rule continues to apply. The panel noted that it would be illogical to read a statute conferring additional protections to be, sub silentio, repealing others. Furthermore, Congress needs to be explicit and clear when it is repealing common law protections. In so holding the CA 3 widens a split between the CAs 8,9,10 (so holding) and the CAs 2,6 (finding that § 7502 is exclusive).

This tax decision was delivered (pun intended) on tax day. Although, as noted above, it widens an already well-developed split of authority in the circuits, it is not a likely certiorari candidate. The Department of the Treasury has proposed a regulation that, if adopted, would clearly preempt the mailbox rule in all future cases, regardless of the circuit. 69 Fed. Reg. 56,377.

Split Noted: What Principles Should Limit the Boundaries of Public Honest Services Fraud?

2008-04-21T15:49:00.000-05:00

Per United States v. Sorich, 2008 WL 1723670, *6-*9 (7th Cir. Apr. 15, 2008)

The facts of this case, which arises from the city of Chicago’s perennially troubled civil-service hiring practices, are irrelevant to the split at issue. The mail fraud statute criminalizes the use of the mail in furtherance of a scheme or artifice to defraud another of various interests, including, in relevant part, “of the intangible right of honest services.” 18 U.S.C. § 1346. This statute, however, does not limit the range of possible meanings of honest services, raising constitutional vagueness concerns.

No court has invalidated the statute for want of definition. Instead, the circuits have recognized the problem and offered their own limiting understandings to apply in public-fraud cases. The CAs 3,5 require a violation of state law. The CA 1 requires more than a mere violation of state ethics law. The CA 7 has required ‘private gain’ in order to find an instance of honest-services fraud. It continues to apply this understanding in the present case, though recognizing that the CA 10 has expressed a legitimate disagreement. Several additional splits have emerged in the private honest-services fraud context. See generally 172 A.L.R. Fed. 109.

Split Widened: What Does Substantially Contemporaneous Mean In the Bankruptcy Code?

2008-04-21T13:38:00.000-05:00

Per Gordon v. Novastar Mortgage, Inc. (In re Hedrick), 2008 WL 1724009, *19-*33 (11th Cir. Apr. 15, 2008)

In this consolidated case, the debtors refinanced their home mortgages. The debtors paid off the first loans with the finances received from the new creditors. The new loans were secured by first priority security deeds on the debtor’s homes, which deeds were recorded within ninety days of the debtors having declared bankruptcy. In the relevant case of debtor Sharma, the security deed was not submitted to be recorded until eight days after the loan was made. The bankruptcy trustee sought to set aside the security deed of the new creditors.

A bankruptcy trustee may avoid a debtor’s transfer of property to a creditor that was made within ninety days of the filing of a bankruptcy petition when that transfer gave the creditor more than the creditor would otherwise be able to receive under the bankruptcy petition. 11 U.S.C. § 547(b). The trustee, however, is not able to avoid such transfers where they are a substantially contemporaneous exchange giving the debtor new value. 11 U.S.C. § 547(c)(1).

The question whether Sharma’s transfer of his interest in the house was voidable depends on the meaning of the contemporaneous exchange exception. The Eleventh Circuit notes that this issue is one of first impression, and that the other circuits are split. The CAs 1,6 apply a 10-day bright-line rule, whereas the CAs 7,8,9 examine the facts and circumstances of each case to determine whether or not a transfer was substantially contemporaneous.

After initially noting the split, Judge Carnes, on behalf of a unanimous panel, spends much time criticizing the bright-line rule. *21-*30. Why the panel takes the effort to do so, however, is an open question because the result would be the same regardless of what tests applies. The facts and circumstances of this eight day period support the conclusion that the substantially contemporaneous exception applies. The rest of the opinion should beunderstood as dicta offered in the hopes of persuading other courts and circuits to join the CA 11's conclusion.

Split Noted: Is Mandatory Restitution Criminal or Civil in Nature?

2008-04-21T13:35:00.000-05:00

Per United States v. Bonner, 2008 WL 1701841, *4 (7th Cir. Apr. 14, 2008)

For seventeen years, the Bonners defrauded the government – receiving payments for non-existent medical problems and non-existent children. A jury convicted them for wire-fraud and theft of government property. The Bonners do not appeal their conviction, but only the restitution the district court judge ordered under the Mandatory Victims Restitution Act.

The Bonners contend that restitution is a criminal penalty, and therefore the fact of amount of restitution must be found by a jury beyond a reasonable doubt. The Seventh rejects this argument as it has prior precedent which dictates that restitution is, in fact, a civil remedy appended to a criminal sentence. It notes, however, that the majority of the circuits have held differently. The CAs 2,3,5,8,9,11,DC all hold that restitution is a criminal penalty; only the CAs 7,10 hold differently.

This distinction, however, has not made a difference in the end result. As far as my research reveals, no court in the majority school has applied Booker to find that a jury need find the fact of restitution beyond a reasonable doubt. The en banc Third Circuit opinion in United States v. Leahy, 438 F.3d 328 (2006), provides an excellent discussion of both points of view and reveals the sharp divide. Third Circuit Blog covered that opinion here.

News In Brief

2008-04-16T15:11:00.000-05:00

I apologize for my absence for the last few days. Houseguests, work, and play have all kept me far too busy to provide detailed entries here. In lieu of those details, I offer a headline summary of recent decisions I have found.

I should be back on top of things by Friday, and will provide full entries on all of the cases noted below. In the meantime, check out the cases (linked) if you are interested as well as Blawg Review #155 from the California Blog of Appeal.

Split Noted: Can Events After the Filing of Suit Affect Its Removal?
Per Sprigman v. AIG Marketing, Inc., 2008 WL 1722153 (7th Cir. Apr. 15, 2008)
Split Widened: Does 26 U.S.C. § 7502 Override the Common Law Mailbox Rule In Tax Cases? [Tax Case on Tax Day]
Per Phila. Marine Trade Ass’n-Int’l Longshoremens’ Ass’n Pension Fund v. Comm’r. (3d Cir. Apr. 15, 2008)
Split Noted: What Principles Should Limit the Boundaries of Honest Services Fraud?
Per United States v. Sorich, 2008 WL 1723670 (7th Cir. Apr. 15, 2008)
Split Widened: Does 11 U.S.C. § 547(c)(1)(B)’s Requirement of Substantial Contemporaneity Provide a Bright-Line 10 Day Period?
Per Gordon v. Novastar Mortgage, Inc. (In re Hedrick), 2008 WL 1724009 (11th Cir. Apr. 15, 2008).
Split Noted: Is Mandatory Restitution Criminal or Civil in Nature?
Per United States v. Bonner, 2008 WL 1701841 (7th Cir. Apr. 14, 2008).

Split Noted: Is Prejudgment Interest Available Under the Warsaw Convention?

2008-04-12T09:21:00.000-05:00

Per Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., 2008 WL 1021939, *25-*26 (7th Cir. Apr. 11, 2008)

Sompo Insurance brought suit against Nippon Cargo Airlines (NCA) seeking compensation for the damage to computer equipment caused during transport. After a bench trial, the district judge entered judgment for Sompo but denied prejudgment interest.

In the course of his opinion, Judge Ripple provides an extended and informative history of the various international agreements governing air carrier liability. The unanimous panel affirms the district court’s holding, but notes that the circuits have split on whether prejudgment interest is available under the Warsaw Convention; the CAs 2,7 (no) differ from the CAs 5,9 (yes). Certiorari is highly unlikely as the Warsaw Convention was superceded in 2005, after the accident at issue here, by the Montreal Convention.

Split Widened: Are Pre-Trial, Post-Indictment Hearings Required When Forfeitures Implicate Defendants' Sixth Amendment Rights?

2008-04-12T01:18:00.000-05:00

Per United States v. E-Gold, Ltd., 2008 WL 995627, *16 (D.C. Cir. Apr. 11, 2008)

I have to argue a fake case, with a closed record, on this precise issue for a class later this month. I therefore cannot read any more of this case than I already have, but wanted to flag the case as one of interest. Also from the D.C. Circuit yesterday, Judicial Watch, Inc. v. F.B.I. further enlarges the majority school on the meaning of 'prevailing party' for fee-shifting statutes, previously discussed here and here.

Have a great weekend everybody!

Split Noted: What is the Standard Governing the Review of the Scope of a Consent to Search?

2008-04-12T01:03:00.000-05:00

Per United States v. Jones, 2008 WL 1073739, *15 (1st Cir. Apr. 11, 2008)

Whenever an appellate court begins it opinion reviewing a criminal conviction for drug crimes by calling the defendant “Smoke,” it is not going to end well. Rashaun “Smoke” Jones checked into the Towneplace Suites hotel. The manager informed a police sergeant of this fact (the case does not say why), and a database search revealed an outstanding warrant. While a team was assembling to effect the Jones’s arrest, officers observed others leaving the hotel room and behaving in such a manner as to indicate a drug transaction had just taken place.

Six officers subsequently entered the hotel room, without knocking and without a warrant. Marijuana was in plain sight, and the four occupants of the room were handcuffed. Jones was identified, brought to a separate room, and read his Miranda rights. An agent then asked if they could search the suite, and Jones gave his consent. Heroin and ecstacy were found inside a cabinet in the kitchenette.

Jones appeals his conviction for possession with intent to distribute, arguing that the no-knock entry requires suppression, that his consent was not knowing or voluntary, and that his consent did not extend outside the bedroom in which he was being held. While hotel occupants have the same Fourth Amendment rights as homeowners, Hudson v. Michigan held that the exclusionary rule does not apply to no-knock entries when the police have a valid reason to enter.

The consent issue is tougher. Can consent be truly free and voluntary when one has just been shocked by the entry of fifteen police officers with weapons drawn and is now handcuffed? The district court says yes, and the First Circuit affirms under the clearly erroneous standard. As a personal matter, I am inclined to agree that the Miranda warnings did help ensure the voluntariness of Jones's consent.

Judge Torruella does note that the circuits have split over the proper standard for reviewing the scope of this freely given consent. The CA 5 believes that this is a legal issue to be reviewed de novo, whereas the CA 8 treats it as a factual issue under the clearly erroneous standard. The CA 1 does not decide what standard it would apply as would affirm under either. Finally, the panel also rejects two different sentencing appeals.

Appellate Law & Practice also provides a typically thorough summary of the case.

Split Widened: Is a Standardized Impoundment Policy Constitutionally Required?

2008-04-10T13:35:00.000-05:00

Per United States v. Smith, 2008 WL 942666 (3d Cir. Apr. 9, 2008)

Seeing defendant Smith in the passenger seat of a car, two patrolmen stopped the car because they knew that Smith had an outstanding arrest warrant. During the arrest, the driver started a fight with one of the officers. Subsequently, both the driver and Smith were arrested, leaving no one available to take possession of the car. The police officers concluded that they should not leave the vehicle where it was, because it was a rough neighborhood and the car might be damaged or stolen. After impoundment, a routine warrantless inventory search revealed a loaded semi-automatic handgun. Smith admitted that he had placed the weapon there and was charged for being a felon in possession of a firearm. Smith moved to suppress the gun, arguing that the decision to impound was unconstitutional in the absence of any standardized policy governing the officers’ discretion.

Judge Greenberg, on behalf of a unanimous panel, recognizes that the circuits have split on this point. The source of the disagreement is ambiguous language contained in the Supreme Court’s decision in Colorado v. Bertine. There, the Court upheld an impoundment where officers had the discretion either to park and lock the vehicle or to impound it, stating that “[n]othing in [previous cases] prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria . . . .” Should this language be read to create a prophylactic rule requiring standard criteria, or simply a rejection on a false limitation of police discretion?

The CAs 1 and now 3 do not require a standard procedure (although encouraging their adopition), but have held that the proper test is whether the impoundment was reasonable given the circumstances – applying the Fourth Amendment directly. On the other hand, the CAs 8,DC both read Bertine to require a policy document that cabins the officers’ discretion – reading Bertine as a new prophylactic requirement.

Finally, if you think I have been busy today, you should check out the Tenth Circuit Blog for its many interesting entries today.

Splits Widened: Issues Concerning a District Court’s Failure to Set a Restitution Schedule Both During and After Imprisonment (Questions Below)

2008-04-10T10:39:00.000-05:00

Does a District Court’s Failure to Set a Restitution Schedule During Imprisonment Impermissibly Delegate Judicial Authority to the Executive?
Is Failure to Set a Schedule After Release Plain Error?

Per United States v. Sawyer, 2008 WL 942653 (7th Cir. Apr. 9, 2008)

The facts underlying each of the three appeals are largely irrelevant to the legal issues presented. The three defendants were all ordered to pay restitution, and all are concededly unable to pay the full amount. They argue that 18 U.S.C. 3664(f)(2) required the district judges to set a schedule of restitution payments. In the case of one defendant, Duncan, the judge did set a schedule to take effect after his release from prison. For the other two defendants, Sawyer and Rodgers, no schedule at all was incorporated into the district courts' orders.

Duncan argues that the failure to specify a payment schedule during his time in prison impermissibly delegates a judicial task to the executive branch Bureau of Prisons. Chief Judge Easterbrook, on behalf of a unanimous panel, fails to see any delegation. The BOP’s authority over prison earnings is derived from statutory authority and not judicial delegation. “Prison earnings and other transactions concerning prison trust accounts are so completely within the Bureau of Prisons' control that it would be pointless for a judge to tell the convict how much to pay a month.” *5.

Chief Judge Easterbrook thus concludes that all repayment schedules, as a rule, should not begin until after defendants are released from prison. He recognizes, however, that the circuits are split on this issue. The CAs 2,3,6,7,9,10 all hold that the failure to set a repayment schedule for time in prison impermissibly delegates judicial power to the executive branch; only the CAs 4,5, and now 7 disagree.

With respect to defendants Sawyer and Rodgers, however, the panel holds that the failure to incorporate any repayment schedule was erroneous. The question remains, however, whether such mistake meets the plain error standard. In order to prove plain error, four elements must be met – there must be (1) an error, (2) that is clear or obvious, (3) that affects substantial rights, and (4) that would affect the fairness, integrity, or public reputation of judicial proceedings.

Chief Judge Easterbrook questions whether the failure to set a schedule at this time could affect the defendants’ substantial rights. Slow payment would not return a defendant to prison, the remedy for paying less than one is able would be the imposition of a schedule of minimum payments at the time such failure is noticed. The panel opinion continues to question how, even if the defendants’ substantial rights were affected, an order to repay what he owes could undermine the fairness, integrity, or public reputation of judicial proceedings. Indeed, setting a schedule that is too low could result in the defendant receiving a windfall – a result which would injure the fairness of judicial proceedings.

The panel therefore holds that failing to set a schedule of repayment is not plain error. The opinion again notes that the circuits are split on this issue. The CAs 2,3,4,6,10,11 all hold that this failure is plain error, while on the CA 5 and now 7 state that such failure is not necessarily plain error. The CA 1 also seems sympathetic to this view, holding that the failure to set a schedule for drug testing is not plain error. To reach its conclusion on this point, the panel had to overrule several previous Seventh Circuit precedents. This opinion was circulated to all Seventh Circuit judges, and not one called for rehearing en banc.

Split Noted: Can Class Certification Be Limited to Certain Issues That Are Amenable to Class-Wide Resolution?

2008-04-10T09:21:00.000-05:00

Per Grovatt v. St. Jude Med., Inc., 2008 WL 942274, *9 (8th Cir. Apr. 9, 2008)

The underlying facts of this case are truly irrelevant to the circuit split that the opinion notes. Federal Rule of Civil Procedure 23(c)(4) permits class actions to be certified “with respect to particular issues.” Nonetheless, the circuits are split over whether such classes may be properly certified. The CAs 2,9 hold that they may; the CA 5 that they may not unless the whole cause of action can be so certified.

Judge Colloton cites a helpful law review article (not an oxymoron, I swear) on the direct issue. The article shows the rise and fall of the practice of issue certification; a majority of circuits do not reach the issue because they find (as the panel does here) that even those issues which have been certified have a predominance of individual concerns and thus should not have been certified.

Split Widened: Is There Appellate Jurisdiction to Review a Denial of a Motion to Stay Pending Arbitration in the Absence of an Arbitration Agreement?

2008-04-10T08:51:00.000-05:00

Per Carlisle v. Curtis, Mallet-Prevost, Colt & Mosle, LLP, 2008 WL 942035, *3-*5 (6th Cir. Apr. 9, 2008)

After selling a construction business, plaintiff Carlisle sought advice on how to minimize his tax liability from Arthur Anderson, LP (accountants); Bricolage Capital LLC (‘financial boutique’); and Curtis, Mallet-Prevost, Colt & Mosle, LLP (law firm). These three institutions recommended a leveraged option strategy. Following this advice, Carlisle formed an LLC and entered into a management agreement with Bricolage, an agreement which called for arbitration of any controversy relating to the agreement. He additionally paid a retainer to the law firm, but did not enter into any agreement.

The IRS determined the leveraged option strategy to be an abusive tax shelter, but offered amnesty, subject to certain conditions, to taxpayers who had invested in them. Curtis Mallet failed to inform Carlisle of these rulings, and Carlisle was eventually required to pay more than $8 million in taxes, penalties and interest. Carlisle filed suit against the three institutions. Bricolage Capital moved to stay the proceedings pending arbitration. While that motion was pending, it filed for bankruptcy, resulting in an automatic stay. The other two institutions – Arthur Anderson and Curtis Mallet – argued that equitable estoppel should prevent the plaintiff from avoiding arbitration with regards to the claims against them as well. The District Court rejected the motion to stay, and the institutions appealed.

Section 16 of the Federal Arbitration Act creates a limited exception to the final judgment rule, allowing for interlocutory appeals of motions to stay pending arbitration. Section 3 of the Act, however, requires that such motions be based on “an agreement in writing. The question this panel of the Sixth Circuit considers is whether there is appellate jurisdiction over an interlocutory appeal of a denial of a motion to stay pending arbitration in the absence of a written arbitration agreement between the parties before the court.

Judge Daughtrey, on behalf of a unanimous panel, holds that the courts lack such jurisdiction. She notes that the circuits have split on this issue; the CAs 10,DC find such jurisdiction lacking as well, whereas the CAs 2 has held that it does have such jurisdiction. Finally, she notes that the Sixth Circuit is not deciding whether the district court should have applied equitable estoppel, quoting the CA 10 to show that the issue is whether the court has the jurisdiction to hear the case, not whether the district court got it right.

Split Noted: Does Informal Notice Suffice to Meet the Service Required for a Sanctions Motion?

2008-04-09T10:15:00.000-05:00

Per Cadle Co. v. Pratt (In re Pratt), 2008 WL 933633, *7-*11 (5th Cir. Apr. 8, 2008)

This appeal is the third to reach the Fifth Circuit in a long-running dispute between the Cadle Company and Jack Pratt. Mr. Pratt, represented by Schiro, voluntarily filed for Chapter 7 relief. The Cadle Company, a creditor of Mr. Pratt, later moved to have the discharge set aside because Pratt had not revealed that he was entitled to payments from his mother’s estate. At trial, Schiro presented testimony that Pratt was not entitled to any distributions form the estate because he owed money for loans made to him. After trial, it became known that Pratt had, in fact, received money from his mother’s estate after her death. Cadle filed a motion for Rule 9011 sanctions against Schiro.

Rule 9011 of the Federal Rules of Bankruptcy Procedure requires a motion for sanctions to be served 21 days prior to its filing, so that the recipient has an opportunity to withdraw or correct the offending contention. This provision is substantially the same as the notice requirement of Rule 11 of the Federal Rules of Civil Procedure, and the two have been interpreted similarly.

Cadle did not serve Schiro with an advance copy of the motion for sanctions, but sent two different warning letters more than 21 days before he filed his motion for sanctions. The bankruptcy court held such informal notice insufficient to satisfy the notice requirement and denied sanctions. Judge Wiener, on behalf of a unanimous panel, notes that the circuits have split on this question. The CAs 2,4,5,8,9,10 all require formal service of the motion for sanctions, whereas the CA 7 permits informal notice that substantially complies with Rule 11. The CA 6 has conflicting panel opinions. Although the CA 1 has not decided the issue, the D.R.I. has held that informal notice does suffice. In light of the plain language of the rule and previous Fifth Circuit precedent, the panel affirms the denial of sanctions for failure to formally serve the motion.

Split Noted: Does the Same Standard of Substantive Reasonableness Apply to Both Initial Sentencing and Revocation Proceedings?

2008-04-08T10:18:00.000-05:00

Per United States v. Robe, 2008 WL 918722, *3 (8th Cir. Apr. 7, 2008)

Donny Bear Robe pled guilty to involuntary manslaughter after he led police on a drunken high speed chase, during which a passenger was ejected from the open bed of his pickup. He was sentenced to two years in prison and three years of supervised release. Four months into his supervised release, Bear Robe was arrested for driving while intoxicated; he had a BAC of 0.214. The guidelines range for this violation is 3 to 9 months imprisonment, but the district court imposed the statutory maximum 24 months imprisonment and an additional 12 months of supervised release.

This Eighth Circuit panel reviews this sentence for its procedural soundness and substantive reasonableness. Judge Colloton, on behalf of a unanimous panel, notes that the circuits are split on what the proper standard to evaluate reasonableness. Appellate courts are directed by the statute to evaluate if a revocation sentence is “plainly unreasonable.” 18 U.S.C. § 3742(e)(4). In Booker, however, the Supreme Court excised this standard of review for initial sentencing in order to make the guidelines system advisory. In its place, the Supreme Court recommended an ‘unreasonableness’ standard, as opposed to ‘plainly unreasonable,’ to be applied in light of the § 3553(a) factors.

Most circuits – the CAs 2,6,8,10,11 – apply the same Booker standard to review both initial sentencing and revocation proceedings. The CAs 4,5, on the other hand, continue to apply the plainly unreasonable standard for revocation proceedings. The Eleventh Circuit has suggested that there really is no difference between the two. In this case, that is certainly true; the above-guidelines sentence is affirmed as both procedural sound and substantively reasonable.

Split Created: Can an Immigration Judge Consider Matters Outside the Record of Conviction When Classifying an Offense as a Crime of Moral Turpitude?

2008-04-07T23:31:00.000-05:00

Per Ali v. Mukasey, 2008 WL 901467, *5-*11 (7th Cir. Apr. 4, 2008).

This Seventh Circuit decision, not to be confused this one (cert pending, considered reasonable - SCOTUSBlog) of the same name and circuit, resolves an intra-circuit split and creates a split between the circuits. Moreover, it does so convincingly; not one active judge requested that the case be taken en banc despite the fact that it does so.

Ibrahim Ali, a Jordanian citizen, has resided in the United States for more than twenty years and is married to a U.S. citizen. He also sold guns, without a license, to people not authorized to own them. He was convicted of violating 18 U.S.C. § 371, which prohibits conspiring either to commit a crime against the United States or to defraud the same. This conviction blocks most avenues of discretionary relief from removal; Ali is only eligible for readmission to the United States (and therefore to seek adjustment of status) if his crime is not one ‘involving moral turpitude.’

Fraud has long been recognized as a crime of moral turpitude. The formal crime for which Ali was convicted, however, did not require fraud – it only required either fraud or a conspiracy to commit a crime against the United States. “The presentence report adds: ‘it was further part of the conspiracy that the defendants misrepresented, concealed and hid, and caused to be misrepresented[,] concealed and hidden, the purpose of and the acts done in furtherance of the conspiracy’.” *6. Based on the consideration of this document, the immigration judge decided that this crime was one involving moral turpitude. The question that the Seventh Circuit reviews is whether such consideration is permissible.

This panel was confronted by conflicting circuit precedent – one case had permitted such consideration while two others found it impermissible. All of the other circuits had all previously forbidden consideration of materials outside the indictment and record of conviction. Their reasoning was based, in large part, on the Supreme Court criminal law precedents of Taylor and Shepard, which limit consideration of previous convictions to the statutory elements of the offense and the official record of conviction.

This panel reaches a different conclusion. Judge Easterbrook starts his opinion, on behalf of a unanimous panel, by noting that the classification of an offense as one involving moral turpitude is entitled to Chevron deference. The Board of Immigration Appeals has recently decided that an immigration judge may take additional evidence as needed to characterize an already proven offense. In Matter of Babaisakov (*5-*13), the BIA reasoned that when the characterization of the offense does not depend solely on the elements of the offense, the categorical approach does not apply. Judge Easterbrook continues to distinguish the precedents of the other circuits by noting their criminal law genesis – neither Sixth Amendment nor jury concerns are at issue in the immigration context.

I believe that this decision (or, more importantly, the change in the BIA position it notes) will prove influential if the question arises again in other circuits or is granted certiorari. That said, this case took me longer than normal to summarize because I am not at all familiar with the area, so I may be missing something big. Any and all input to correct my errors would be welcomed.

Split Noted: Do Volunteers Have Property Interests in Their Job?

2008-04-07T17:58:00.000-05:00

Per Griffith v. Lanier, 2008 WL 900978, *6 (D.C. Cir. Apr. 4, 2008)

Plaintiffs are members of the District of Columbia Police Department’s Reserve Corps, a group of unpaid volunteers who assist the full-time policemen. In 2006, the Department issued regulations providing, in relevant part, that reservists could be dismissed at will. Plaintiffs filed suit, arguing that this regulation deprived them of a statutorily-conferred property interest in continued volunteer service. The district court granted summary judgment for the Department.

A due process claim requires a liberty or property interest. A property interest exists only when an individual has legitimate claim of entitlement, rather than unilateral expectation, to a benefit, which claim can be based on background law. This D.C. Circuit panel notes a split over whether volunteesr can ever have a property interest in an unpaid job regardless of whether the job is statutorily guaranteed – the CA 7 holds that they can; the CA 3, they cannot. The panel does not reach this question as it finds that the reservists have no statutorily guaranteed interest in keeping their jobs, and so it affirms.

Update: Can a District Court Require Its Sentence To Be Served Consecutively to an Anticipated, but Unimposed, State Sentence?

2008-04-04T12:32:00.000-05:00

Per United States v. Donoso, 2008 WL 878562 (2d Cir. Apr. 3, 2008)

The Second Circuit widens this split, previously discussed on this blog here, by holding that a Federal court lacks this power. It also cites another opinion which was not included in the previous discussion, so the split now is between the CAs 2,4,6,7,9 (courts lack this power) (always surprising to see CAs 2,4, and 9 all on the same side of a split) and the CAs 3,8,10,11 (courts have this power).

Nonetheless, the procedural history of this appeal reveals a loophole that offers a district court a way around this lack of power in order to achieve the same result. The district court initially required its sentence to run consecutively to an as yet unimposed state sentence. A day later, the state court imposed sentence on Donoso’s guilty plea. The district court, sua sponte, invoked its power under Federal Rule of Criminal Procedure 35 (correction of clear errors), recalled the case, vacated its previous sentence, and resentenced Donoso, requiring the new sentence to run consecutive to the now-imposed state sentence. Interestingly, the Second Circuit affirms, holding that the district court's first sentence was clearly erroneous, even though the circuits have split on the question and there was no binding Second Circuit guidance. I can't seem to get the Second Circuit's webpage to work today, so apologize for the lack of a link to the opinion.

Update: What Constitutes One ‘Occurrence’ Under Liability Insurance Policies?

2008-04-02T23:31:00.000-05:00

Per Madison Materials Co., Inc. v. St. Paul Fire & Marine Ins. Co., 2008 WL 867931, *4-*9 (5th Cir. Apr. 2, 2008)

The state-law based split over the meaning of ‘occurrence’ in insurance contracts, previously discussed on this blog here, proves decisive in this Fifth Circuit opinion, which holds that ten years of embezzlement are a single occurrence under Mississippi law’s interpretation of the relevant policy language. The Fifth Circuit holds that occurrence relates to the cause of the injury and that the single employee’s dishonesty caused all ten years of losses.

The CA 5 notes that an opinion from the CA 9, applying California state law, interprets similar policy language differently. As an initial matter, the relevant policy language was different (the Cali. case explicitly included a term limitation in the policy). More importantly, however, is the fact that this split turns on independent state grounds. The previous post contains the information necessary to distinguish these two cases.

Commentary: Originalism and Emergency Powers

2008-04-02T19:28:00.000-05:00

The long awaited declassification of the torture memos has set much of the blawging world aflame. There are too many posts for to attempt a full link summary, but I will single out those whose continued coverage of the torture issue has been noteworthy: Balkinization, Convictions (Slate's new blog included by virtue because of the history of the Balkinization contributors and its current discussion), and Obsidian Wings (oh, how I wish Hilzoy wasn’t on vacation).

Others (particularly Marty Lederman) are doing point by point refutations of John Yoo’s analysis. To be honest, I simply lack the background knowledge to attempt to do the same. Instead, I want to engage and refute, on originalist terms, the background meta-level idea of the President as the King-in-wartime that both the memos and Justice Thomas’s opinion in Hamdi espouse.

In so doing, I will not rely on Supreme Court precedents or on founding-era commentary except for the single quotation of Youngstown in this paragraph. I do not believe either source to be helpful. For every Curtiss-Wright, there is a Youngstown; for every Hamilton, a Jefferson. “A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side . . . .” Instead, I shall try simply to read the Constitution holistically in order to see the general allocation of institutional competencies in emergency situations.

The United States Constitution is fairly unique among modern Constitutions (but similar to ones of its own era) in that it contains no explicit emergency provisions. Indeed, it is formulated as a Constitution for all times, to be applied within exigent circumstances as without. This entry takes the strongest reading of both congressional and presidential power, so as better to compare and contrast them. Such reading, however, does not necessarily comport with my normative position in the current debates – I read the necessary and proper clause more narrowly than provided for below.

Clear Congressional Powers

The two constitutional provisions that most directly relate to extraordinary circumstances, the habeas corpus clause and the Third Amendment, indicate the necessity of congressional involvement in such momentous decisions. While the habeas corpus clause does not, on its face, suggest who is to exercise the power of suspension, the location of this clause in Article I, section nine does – it is within the section on the limitations of the powers of Congress. Similarly, the Third Amendment dictates that even in times of war, no soldier shall be quartered in any house without consent, except as prescribed by a law – an act of Congress.

Other clear congressional competencies include the taxing power, as needed to “provide for the common defense and general welfare of the United States.” The President, like the English King, could not raise revenue to counteract an emergency without the consent of the legislature. Neither could he expend money on the same. “No money shall be drawn from the treasury, but in consequence of appropriations made by law.” Appropriations bills must originate in the House, who are returned to the people every two years – a popular check on such expenses.

Clear Presidential Powers

The entire executive power, without the limitation of ‘herein granted’ as found in Article I, is vested in the President of the United States. Another telling difference in the powers of the President and Congress can be seen in the oaths that each must take: the President is obliged to “preserve, protect, and defend the Constitution of the United States,” whereas legislators are merely bound to ‘support’ it. When the two institutions are thus contrasted, it would seem clear that the President has some residuum of authority to respond to threats to the Constitution – to defend it. Hence the presidential duty to “take care that the laws be faithfully executed.”

Concurrent Powers: The Commander-in-Chief and Declarations

In making the unlimited grant of executive powers, the Constitution does include an exemplary list of the competencies included therewith, one of which is of especial importance in emergencies: the Commander-in-Chief clause. When considering this clause as a source of substantive power, however, a question arises: commander-in-chief of what? It was Congress that was given the power “to raise and support armies; but no appropriation of money to that use shall be for a longer term than two years.” Thus, whether there would be a standing army was left an open question, and the people could change their answer within any election cycle. In the absence of a standing army, it was for Congress to “provide for the calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.” Thus, Congress necessarily plays a role in the exercise of the commander-in-chief powers, whether by continuing authorizations for an army or by calling up the militia.

Only after the commander-in-chief clause and the congressional power of the purse are therefore understood in their proper relation, can the meaning of the power “to declare war” be examined. Originally, the founders had invested Congress with the entire power to make war. One delegate objected to this formulation because “its proceedings were to slow.” The substitution of ‘declare’ for make was proposed, “leaving to the Executive the power to repel sudden attacks.” The broadest reading of the congressional power to declare war leaves almost all war powers in its hands, excepting only the ability to respond to crises before legislative action is possible. The narrowest conception, on the other hand, allows the President certain discretion for initiative but still leaves significant power in the hands of Congress.

Contingent Powers: The Importance of Timing

Other provisions of the Constitution support the former broad reading and stress the importance of timing in the constitutional allocation of powers. The first such provision prohibits the states from engaging in war without the consent of Congress. The only exception to this general prohibition is if a state is actually invaded or “in such imminent danger as will not admit of delay.” The President is not consulted at all. Thus, Congress has control over the states’ ability to engage in war, subject to only the most exigent limitations.

Another provision of that has details relating to the timing of institutional competencies is the ‘guarantee clause,’ which concerns the states, and therefore has nothing to do with the allocation of competencies within the federal government. Nonetheless, it is quite enlightening as to the general conception of the division between the legislative and executive powers. It provides that the legislature of a state to decides when federal aid is needed to counter domestic violence. That power only devolves to the executive when the legislature is unable to convene. Only when the legislature is unable to meet a crisis, therefore, can the executive act of its own accord.

This last insight – that the executive may only act of its own accord when the legislature cannot convene – gives a new insight into a constitutional provision previously thought to have nothing to do with emergencies, the ‘state of the Union’ clause. The President “shall . . . recommend to [Congress’s] consideration such measures as he shall judge necessary and expedient.” There is a hidden parallel between that clause and the ‘sweeping clause’ that the Congress is authorized to “make all laws which shall be necessary and proper for the carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States . . . .” If a President believes that some hitherto unauthorized action is necessary to fulfill his clear power to defend the Constitution, he may recommend to Congress that it make a law which permits him to carry his power into execution.

Powers in Action: ‘Constitutional’ Practices

This description of the Constitution necessarily reads much into the relatively vague lines of the text. “The evident openness of the text here reflected the framers’ genuine uncertainty as they struggled to invent a wholly new sort of executive. Thanks to its gaps and silences, Article II in effect delegated authority to the political branches to negotiate more concrete settlements.” Amar, 197. Thus, the structure of actual emergency governments may reveal ‘constitutional’ practices.

The argument above made much of the fact that only Congress could provide for the calling forth of the militia. Since the earliest days of constitutional practice, when it was confronted with the Whiskey Rebellion, Congress has delegated this role to the President. Thus, “Congress itself has recognized that the executive branch alone can properly exercise emergency power. Delegations of unusual power for the duration of some particular crisis have been made repeatedly since the founding of the Republic.” Rossiter, 219.

Nonetheless, it is notable that these powers must be delegated at all – that they therefore theoretically belong to Congress, and Congress could take them away. Even the experience the Lincoln administration does not deny this fundamental point. Yes, Lincoln unilaterally suspended habeas corpus, yes, he enlarged the military without statutory authority, and yes, he drew money from the treasury without appropriation -- so what? He was acting in the absence of congressional authorization because there was no sitting Congress to authorize his actions. Indeed, Congress had adjourned sine die, and thus ceased to exist as a law-making body. Lincoln appreciated that the powers he was exercising were not executive, but congressional, and accordingly laid them before the Congress which he called into extraordinary session for their consideration. In other words, his action was based on the contingencies of timing. He was quite clear that if Congress disapproved, he could be subject to impeachment.

Conclusions

If the first reading of the constitutional text supports a strong role for Congress, watching the Constitution in action certainly does not. For example, Congress has only declared war rarely while the President has ordered American troops into conflict abroad relatively frequently. By the mid-1970s more than 470 statutes delegated significant emergency powers to the President and four states of emergency declared by the President were still in force. Through a ‘constitutional’ practice of legislative delegation, the President today occupies the predominant position in emergency situations. Such position, however, cannot be said to be exclusive or inherent in the nature of the executive.

Split Noted: Does the Odor of Marijuana in the Passenger Compartment of a Vehicle Create Probable Cause to Search the Entire Vehicle?

2008-04-02T13:30:00.000-05:00

Per Com. v. Garden, 2008 WL 835961 (Mass. Apr. 1, 2008)

A confidential informant told police that ‘Bubs’ was involved in a shooting and could now be found with three other men in a white car. ‘Bubs’ was a known alias of Leroy Wells, a felon with a history of violent crimes. Two hours later, officers saw Leroy Wells and two other men enter a black car as passengers. A registry search revealed that the owner of that car (a female) had a suspended license, giving the officers a reason to pull the car over. As the officer approached the car, they were able to see the driver – defendant Garden – was a man, removing the probable cause.

The officer, however, smelled burnt marijuana coming from the clothes of the occupants of the car. The police frisked Garden and Wells, and searched the passenger compartment of the car. No contraband was found. The officer asked the defendant for permission to search the trunk, and Garden said no. Nevertheless, the officer did unlock the trunk and discovered three pistols and two bags of marijuana.

The Massachusetts Supreme Judicial Court considers whether opening the trunk exceeded the permissible scope of a search justified by the odor of burnt marijuana coming from the clothes of passengers. They hold, in a 4-3 opinion, that the officer could not reasonably have believed that the smell was coming from the trunk – “it is unreasonable to believe people smoke marijuana in the trunks of cars.” Thus the search lacked any probable cause, and all of the evidence must be suppressed.

The dissenting judges note that the circuits are split on this issue. The CA 5 permits searches of the entire vehicle, whereas the CA 10 limits the search to the location in which the odor was detected. The states are also split, but a clear majority permits the search of the entire vehicle. Compare 114 A.L.R.5th 173 § 7 with id. § 6. Although this decision does not explicitly rely on the Massachusetts Constitution as an independent state ground, the heavy citation of Massachusetts precedent would seem to insulate it from any review.

Repeat readers of this blog might have noticed that my discussion of the decisions of state courts of last resort has had a decidedly northeastern flavor. That should not be taken as any indication of my location, but rather simply a reflection of the results of my search algorithm.

Split Created: Does Title VII Permit Third Party Retaliation Claims?

2008-04-01T13:15:00.000-05:00

Per Thompson v. N. Am. Stainless, LP, 2008 WL 834005 (6th Cir. Mar. 31, 2008)

Plaintiff Eric Thompson and his wife, Miriam Regalado met while both worked for North American Stainless. Two years into her employment, Regalado filed a claim of gender-discrimination with the EEOC. Three weeks after the EEOC notified North American Stainless of the complaint, Thompson, whose engagement to Regalado was common knowledge, was fired. Thompson asserts that this constituted impermissible retaliation; North American states that Thompson was fired for performance reasons. Thompson sued for violation of Title VII, and the district court granted summary judgment for North American because Thompson failed to state a claim under the anti-retaliation provision of Title VII.

The anti-retaliation provision forbids employers from discriminating against any of his employees because, in relevant part, “he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” The issue in this case is that Thompson did not make or participate the charge; his fiancée/wife, Regalado, did. The question is whether the protections of the statute extend beyond the plain language of the section.

“Specifically, does Title VII prohibit employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action? As such conduct would undermine the purposes of Title VII, we hold that such retaliatory action is prohibited.” *3. In particular, the Sixth Circuit notes that the EEOC Compliance Manual specifically prohibits retaliation against closely-related third parties. *4.

In so holding, this divided panel creates a split from the other circuits to have considered the question. The CAs 3,5,8 all have rejected closely related third party retaliation claims, holding that the plain language of the statute trumps the risk that its purposes would be undermined. After discussing these cases, the dissent continues to note that the EEOC manual is entitled to no deference when the meaning of the statutory text is plain. On the other hand, the CAs 7 and 11 have permitted, in other circumstances, extra-textual readings of the retaliation provisions in to further to the goals of Title VII. This case strikes me as a prime candidate for review, either en banc or by the Court.

Interestingly, previous Sixth Circuit precedent provided persuasive authority for the CA2’s conclusion today in Holcomb v. Iona College – additional coverage from How Appealing and Wait a Second! – that “an employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race.” *2. This proposition has been upheld by every circuit to have considered the issue (CAs 5,6,11 and now 2) despite the statutory language requiring the discrimination to be “because of such individual’s race.” (emphasis added). The courts have justified their conclusion because, if the discrimination is because of the association with someone of another race, the employee’s own race does play a role – it defines what another race is. I doubt that these broad readings of the statutory text must stand or fall together, given the textual linkage in the CA2’s justification, but the correlation is interesting.

Split Widened: Are the Provisions of 21 U.S.C. § 848(b) Elements of a Separate Crime, or Sentencing Factors?

2008-04-01T11:55:00.000-05:00

Per United States v. Tidwell, 2008 WL 835252, *29 n. 5 (3d Cir. Mar. 31, 2008)

Before detailing the facts and holdings of this case, a little bit of statutory background is necessary. 21 U.S.C. § 848 concerns the offense of a continuing criminal enterprise. Section (c) defines the offense, and section (a) provides that the penalty for engaging in such offense is a minimum of 20 years and a maximum of life imprisonment. Section (b) raises the statutory minimum to life imprisonment for those who are leaders, principals, or organizers of those continuing criminal enterprises that either (A) distribute (in relevant part) more than 150 kilograms of cocaine or (B) receive over ten million dollars in gross receipts in one year.

Tyrone Tidwell pled guilty to engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848(c). No part of the indictment contained facts beyond those necessary to establish a violation of that section, nor was he specifically charged with violation of § 848(b), the “super-kingpin” provision. Tidwell stipulated that his base offense level would be based on distribution of more than 150 kilograms of cocaine. During the rule 11 colloquy, the prosecutor informed Tidwell that his plea subjected him to a mandatory sentence of life imprisonment – that it triggered § 848(b).

The district court concluded that § 848(b) set forth sentencing factors which only needed to be proved by a preponderance of the evidence rather than providing a separate offense which would require proof beyond a reasonable doubt. Tidwell appeals, arguing that § 848(b) is a separate offense, the factual basis for which was neither set forth in the indictment nor proved beyond a reasonable doubt.

Congressional intent is the key to determining whether a statutory provision provides sentencing factors or elements of a separate offense. This Third Circuit panel engages in an extensive discussion of the relevant Supreme Court precedents, and concludes that the Court has emphasized the structure, format, background history, and text of statutes in making this inquiry. *10-*28. Applying these lessons to § 848(b), it reasons that the statutory headings (*30), text (*31-*32), structure (*33-*34), and background history (*35-*38) all support the conclusion that § 848(b) merely provides sentencing factors to be considered in a conviction for an offense proscribed by § 848(c). Were these arguments insufficient to reach this conclusion, the panel also cites legislative history supporting its result. *40-*42.

Finally, the panel notes that there is no violation of the Jones, Blakely, or Apprendi line of cases because the conduct to which Tidwell pled guilty already carried a maximum potential sentence of life imprisonment under § 848(a). *42-*49. While § 848(b) made this maximum also the minimum (and thus removed any discretion), it did not increase the penalty beyond the statutory maximum. Therefore, Tidwell’s sentence is affirmed. In a footnote, the panel admits that there is some tension between the Supreme Court precedent dictating this result (Harris and McMillan) and Apprendi, but that any such tension is for the Court to resolve.

Judge McKee acknowledges that this decision widens the split between the CA 7 (agreeing) and the CA 2. He notes, however, that only the Seventh Circuit has engaged in substantive analysis. The Second Circuit held, without further discussion, that the elements of § 848(b) must be proved beyond a reasonable doubt.

Split Noted: Can the Prior Inconsistent Statements of a Witness be Admitted Into Substantive Evidence?

2008-03-31T17:04:00.000-05:00

Per State v. Espinal, 2008 WL 818979, *11-*15 (R.I. Mar. 28, 2008)

Hearsay is one of the most notoriously difficult areas of the law. After cramming all week for an evidence exam, a contributor to Southern Appeal offered this proposal for hearsay reform. This state criminal appeal offers an insight into two related splits of authority concerning the admissibility of witness’s prior inconsistent statements.

The common law and current federal rule held such evidence admissible only to impeach the witness’s credibility, not as substantive proof in its own right. The reasoning behind this approach was that the statements were not given under oath, before an authority figure, nor subject to cross-examination. This logic, however, is questionable given that the witness is under oath at the time the prior inconsistent statement is offered into evidence and can be examined (and cross-examined) regarding such statements.

As the Rhode Island Supreme Court notes, a majority of jurisdictions have moved away from this rule and now permit inconsistent statements to enter the substantive evidence in a case (citing 30 A.L.R.4th 414). While the circuits still follow the common law and federal rule, some slippage is notable even here. The Third Circuit upheld the admission into evidence of prior inconsistent statements where it believed a witness was feigning memory loss.

Among those jurisdictions that do permit such statements into substantive evidence, a second split has emerged; can such evidence, standing alone, suffice to convict a defendant? The Sixth Circuit and Montana answer that question with a blanket proscription of such convictions; New Jersey and Vermont permit them.

Split Noted: What Standard Applies to Determine if Defendant’s Substantial Rights Were Affected When Reviewing for Plain Error?

2008-03-31T11:23:00.000-05:00

Per United States v. Rojas-Luna, 2008 WL 788611, *7-*8 (5th Cir. Mar. 26, 2008)

I can’t add anything to Fifth Circuit Blog’s extended summary of the case, without which I would not have found the opinion. For a discussion of the relevant facts and law, please click on that link, I will only briefly outline the circuit split the decision notes.

When a error goes unobjected to at trial, appellate courts will review only for plain error. In order to prove plain error, four elements must be met – there must be (1) an error, (2) that is clear or obvious, (3) that affects substantial rights, and (4) that would effect the fairness, integrity, or public reputation of judicial proceedings.

In this case, the Fifth Circuit examines a sentencing enhancement to see if the erroneous application thereof effected Rojas-Luna’s substantial rights (element 3). In order to satisfy element three in the Fifth Circuit, all an appellant need show is that it affected the outcome of the proceedings below. The panel notes that the Ninth Circuit applies a more stringent test, requiring the defendant to raise reasonable doubt that a rational jury would have found him guilty if the error had been absent.

This split results in opposite results in two factually indistinguishable cases. The CA 5 vacates an enhanced sentence and remands, whereas the CA 9 affirms. That is not a typo – it is easier to prove plain error in the CA 5 than the CA 9. It will be interesting to see if the government pursues cert on this issue – the presence of factually indistinguishable cases reaching contradictory results certainly might help get it granted and the court seems more friendly to its position in this case.

Split Noted: Who Bears the Burden of Proving (or Disproving) the Connection Between the Presence of a Firearm in Connection with a Drug Crime?

2008-03-31T11:04:00.000-05:00

Per United States v. Peroceski, 2008 WL 819082, *5-*6 (8th Cir. Mar. 28, 2008)

Timothy Peroceski pled guilty to possession of methamphetamine with intent to distribute. He did not dispute any of the facts in the pre-sentence report, which recounted that the police found thirteen guns on the property where the drugs were found. The district court found Mr. Peroceski responsible for two of these guns, which he does not deny possessing, and applied a two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous weapon in connection with a drug crime. The defendant denied that the guns had any connection with the drugs, and appeals the application of the enhancement.

The application notes for this guideline provision provides that the “adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.” This Eighth Circuit panel notes that there is an intra-circuit split over whether the government has to prove either that the weapon was ‘probably’ connected to the offense (by a preponderance standard), or that the connection was not clearly improbable. The clear weight of intra-circuit precedent favors the latter construction, and that is what the panel adopts.

Interestingly, by placing the burden on the government to prove that a connection is not clearly improbable, the Eighth Circuit is a lone outlier among all of the circuit cases construing this provision. The CAs 1,3,4,5,6,7,9,10,11 have all held that the burden is on the defendant to disprove any connection after it has been established the firearm was present. The difference between these two positions in theory, however, seems to disappear in practice – the Eighth Circuit panel in this case notes that the mere presence of a gun in the same location would suffice to meet the government’s burden, even if the gun was not operational. The application of the sentencing enhancement is affirmed.

Split Noted: Can a Cause, as Opposed to a Symptom, of an Illness Create Ambiguity in an ERISA Plan?

2008-03-28T23:08:00.000-05:00

Per Fitts v. Unum Life Ins. Co., No. 07-7097, *4 (D.C. Cir., March 28, 2008)

A lawyer for Fannie May, Jane Fitts was forced to stop working by her bipolar disorder. She applied for long-term disability benefits, but Unum (the administrator of the benefits plan) informed her that she would only receive benefits for two years because the plan limited benefits for those disabled by a mental illness.

Fitts filed suit under ERISA seeking benefits due under the plan, and the parties disputed whether bipolar disorder was a physical or mental illness. The district court original reviewed Unum's classification for abuse of discretion. The D.C. Circuit reversed and remanded, holding that Unum’s classification was subject to de novo review. After discovery, the district court granted summary judgment to Fitts on the issue of whether bipolar disease was a physical or mental illness. It held that bipolar disorder is a physical illness as a matter of law because it is characterized by an assortment of physical, psychological, and social factors.

In the course of reviewing this ruling, the D.C. Circuit notes that the circuits are split over whether the cause of an illness can create an ambiguity in an ERISA plan. The CAs 5,8 hold that it is the symptoms, not the causes, that determine whether an illness is physical or mental. The CAs 7,9,11 permit cause-based interpretations. The panel does not decide the issue in this case, however, because there were issues of material fact concerning whether physical factors can cause bipolar disorder and if they did so in this case. It thus reverses the grant of summary judgment and remands for further proceedings.

Additional coverage from Decision of the Day. Please note that DotD's homepage has changed, it can now be found here.

State Split Widened: What Constitutes One ‘Occurrence’ Under Liability Insurance Policies?

2008-03-28T22:28:00.000-05:00

Per Am. Family Mut. Ins. Co. v. Wilkins, 2008 WL 818954 (Kan. Mar. 28, 2008)

This case is before the Kansas Supreme Court on certification from a federal district court. The point at issue concerns the meaning of occurrence in insurance contracts – as in a per-occurrence limit of liability – which is a matter of state law. Although several circuits have rendered decisions on the issue, they have done so as an application of state law in diversity cases. As such, there is no possibility that this will be resolved by the Supreme Court, but I found the possible interpretations interesting enough to share.

Occurrence could refer to (1) the cause of the injury, (2) the effects of the action, or (3) the event which triggered liability. Rather than relate the facts of this case, I will use a hypothetical example to explain the differences between these options. A restaurant owner serves one batch of poisoned bread at two different meals to three different customers each time. Given this situation, definition one would yield one occurrence – the baking of the bread. Definition two, on the other hand, yields six different occurrences, as six customers each felt the effects of the action. Finally, definition three might yield either one or two occurrences, depending on how the court looked at it. The event could be seen as the poisoning of the bread, or serving it to customers (twice). The Kansas Supreme Court also notes the interplay between definition one and three, stating “the liability-triggering event test, in certain circumstances, is a narrow class that can overlap with the cause test.”

Definition one is by far the majority school and the one chosen by the Kansas Supreme Court in this instance. For a full listing of the positions of various states in this split, see generally 64 A.L.R. 4th 668. Finally, note that Kansas has a statutory mechanism providing for an intermediate appellate court judge to sit in the place of a recused Justice – the lack of which at federal Supreme Court was recently discussed at SCOTUSblog.

Split Widened: Can a District Court Modify a Conditional Writ of Habeas Corpus After It Has Become Final?

2008-03-28T11:10:00.000-05:00

Per Harvest v. Castro, 2008 WL 795360, *6-*11 (9th Cir. Mar. 27, 2008)

Joshua Harvest was convicted of first degree murder during a state trial. The Ninth Circuit granted a conditional writ of habeas corpus, reasoning that the admission of hearsay testimony at trial violated the Confrontation Clause, and remanded to district court. The district judge gave the state sixty days to pursue one of three options – modify the conviction to second degree murder, retry Harvest, or release him.

Unfortunately, the state Attorney General, who handled the habeas litigation, did not inform the district attorney of this deadline and the sixty days expired without any action being taken. The error was discovered a month later, and the state filed a motion to amend the district court’s order because of the mistake. Harvest, on the other hand, argued that he was entitled to immediate release. The district judge amended the order, finding that the state’s error was ‘excusable.’

The Ninth reviews the ability of district courts to modify conditional writs of habeas corpus de novo. In its discussion, the panel notes that the circuits are split on the issue. The CA 6 hold that the failure to comply with the terms of a conditional release must always result in the release of the prisoner. The CAs 3,7, on the other hand, believe that the district court has broad discretion in deciding whether to employ its equitable powers to modify conditional writs even after they have become final.

The Ninth holds that the district court does have the power to modify its writs, but that the state motion to modify is governed by Federal Rule of Civil Procedure 60. Rule 60(b) permits a party to seek relief from final judgment under a limited set of circumstances, e.g. fraud, mistake, and newly discovered evidence. The attorney general’s mistake in this case, however, is not one of the type envisaged by the rule and none of the other circumstances apply either. The Ninth thus orders Harvest’s immediate release, but concludes its opinion by noting that nothing prevents the state from arresting and retrying him the moment he is released.

Additional coverage from the California Appellate Report and Decision of the Day. Like Professor Martin, I think that Judge Tashima's opinion is exactly right, especially in light of the Supreme Court's decision in Gonzalez v. Crosby, 545 U.S. 524 (2005).

Split Widened: Is a Clear Statement Required to Avoid the Application of the Doctrine of Uberrimae Fidei?

2008-03-28T10:19:00.000-05:00

Per PHL Variable Ins. Co. v. Fulbright McNeill, Inc., 2008 WL 795063 (8th Cir. Mar. 27, 2008).

Seriously? The Circuits have issued ten decisions total using the term ‘uberrimae fidei’ in the last five years, including three in the last month. Perhaps the doctrine truly is “on everyone’s lips,” as Judge Kozinski suggested a week ago. In this decision, a divided Eighth Circuit panel applies to the doctrine to life insurance contracts, finding that the claimant violated a continuing duty to disclose while his application for coverage was pending. The contract itself made no mention of such a continuing duty and only provided limited bases for recission. Nonetheless, the panel, over a dissent, revokes the contract and holds that the policy language is not clear enough to avoid the application of the doctrine of uberrimae fidei, or of the most abundant good faith. In so holding, it widens the split between the CA 9 and CA 11 previously discussed here.

Fun: Split on the Supreme Court’s Role?

2008-03-27T12:44:00.000-05:00

Within the last week, it appears that a circuit split is developing on whether Supreme Court decisions provide helpful guidance. Compare United States v. Carty, 2008 WL 763770, *21 (9th Cir. Mar. 24, 2008) (en banc) (“The Supreme Court is in the business of resolving circuit splits, not inviting them.”) with Card v. City of Everett, 2008 WL 783783, *26 (9th Cir. Mar. 26, 2008) (Fernandez, J. concurring) (“I applaud Judge Wardlaw’s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court’s dark materials. Alas, even my redoubtable colleague cannot accomplish that.”) (discussing establishment clause principles) and Robbins v. Hendrick, 2008 WL 747132, * (10th Cir. Mar. 21, 2008) (“We are not the first to acknowledge that the new formulation is less than pellucid.”) (discussing Twombly). Will the Supreme Court grant cert to issue a split plurality opinion that it offers clear and instructive help to the appellate courts?

In other news, this blog has just passed 1000 unique visitors and gone international, having recently received visits from Australia, Bosnia-Herzegovina, and Canada. Most visitors still come from the United States Federal Courts, accounting for over 200 unique visits. Many thanks to all of those who have helped me to start up, especially (all links on sidebar) Appellate Law & Practice, California Blog of Appeal, Obsidian Wings, Sentencing Law & Policy, and Southern Appeal. If anyone has any feedback, or would like to see more coverage of any particular issue, feel free to either email me or comment below.

Split Noted: Must Government Agents Always Preserve Rough Interview Notes When Those Notes Are Incorporated Into a Formal Report?

2008-03-27T11:05:00.000-05:00

Per United States v. Colón-Díaz, 2008 WL 787389, *22 n. 8 (1st Cir. Mar. 26, 2008)

Edwin Colón-Díaz was convicted of running a drug business near his small grocery store in a housing project in Puerto Rico. Part of the evidence introduced at trial was the fact that there was nothing on this “grocery store’s” shelves besides police scanners and surveillance cameras. Wanda Romero, a DEA informant, testified that she purchased crack from a dealer who said that the location was owned by Colón-Díaz. She also testified that she had been interviewed by DEA agents more than twenty times. During these interviews, the federal agents made rough notes, showed them to Romero, and she agreed with them.

The Jencks Act requires the government to turn over, upon request, any prior statement of government witnesses relating to their trial testimony. If Romero did agree with those notes, precedent suggests that she then adopted them as her own statement. The District Court found that the notes were Jencks material and asked the government to turn them over. The government informed the court that the notes had been destroyed after a formal interview report was filled out. The question is whether the Jencks Act requires the government to preserve rough interview notes subsequent to the preparation of a formal report.

The First Circuit reviews the Jencks Act violation, if any, in this case for plain error, as Colón-Díaz did not object at trial. The lack of any indication of whether the notes existed, were actually adopted, or what they contained – in addition to the other substantial evidence of Colón-Díaz’s guilt – makes the resolution of the Jencks Act question unnecessary. In the course of so holding, however, the panel notes a circuit split on this issue. Although the panel cites a case for its discussion of the split, that case actually discusses whether government agents are required to preserve rough surveillance (not interview) notes. A brief bit of my own research suggests a different split on the issue of interview notes, with the CAs 2,4,5,6,7,8,10 not requiring preservation and the CAs 3,9,DC so requiring. I do not, however, have the time to confirm this initial research today.

Additional coverage from Appellate Law & Practice.

Commentary: Second Amendment

2008-03-26T13:24:00.000-05:00

My two blogging inspirations are going at it again. Their informative and collegial exchanges (other greats here and here, respectively (look for links to feddie’s responses in the comments, I want to keep his anonymity somewhat secured)) have been sorely missed.

Obviously, my own view on the debate tends to align more with Feddie. I think, even with his update, Publius’s position that the language of the Second Amendment is indeterminate is a bit strained. Sure, if you pull at the language hard enough, you can find a collective meaning. Nonetheless, if one interpretation has stronger support, that is what should form the basis for judicial decisionmaking. In that vein, I thought I would share some relevant additional support concerning the original public meaning of the Second Amendment:

‘Militia’ – The Second Congress enacted the Militia Act of 1792, which required every able-bodied white man of a certain age to be enrolled in the militia and, after enrollment, to procure a gun. No further organizational standards were required. Thus, the militia was originally understood as including all white males – or a large segment population entitled to full legal rights at the time. Following this logic and applying more recent constitutional amendments, the militia should be understood as most adult citizens, without any additional organization. The current definition of Militia in the U.S. Code comports with this understanding, although it limits the female membership – 10 U.S.C. § 311.
‘Free State’ – In the current issue of Notre Dame Law Review, Eugene Volokh offers a thorough canvassing of Framing Era and pre-Framing writings in support of the conclusion that this phrase does not refer to the states of the Union, but rather the platonic ideal free country generally.
Noscitur a sociis – The Second Amendment is just that – second (or fourth) in the middle of a catalogue of individual rights. In the D.C. Circuit opinion, Judge Silverman cogently notes the term ‘the people’ “is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation.” *18. It would be exceedingly odd for a states’ rights amendment to be put in the midst of these individual guarantees.
Early Commentaries – Four early commentaries on the Constitution both supported the individual rights interpretation. Feddie quotes Justice Story (1833), and additional commentaries in favor of an individual rights interpretation by St. George Tucker (1803) and Judge Cooley (1891) have been recognized as equally influential. William Rawle (1829) went even further, suggesting that that the Second Amendment was self-incorporating against the states by its own force: “The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”

As a final, and general, response to Publius’s position regarding the role of policy generally, I will quote from Judge Kleinfeld’s excellent dissent in Silveira v. Lockyer (¶ 66):

“Constitutional interpretation cannot properly be based on whatever policy judgments we might make about the desirability of an armed populace, or the relevance of the Amendment's concern with citizen militias to modern times. Those who think the Second Amendment is a troublesome antique inappropriate to modern times can repeal it, as provided in Article V. That has been done before, as with legislative selection of Senators, and with Prohibition.”

Split Noted: What is the Fourth Amendment Standard for a Visual Body Cavity Search of an Arrestee?

2008-03-26T11:10:00.000-05:00

Per People v. Hall, 2008 WL 762250, *5-*9 (N.Y. Mar. 25, 2008)

A police officer with twenty years narcotics experience observed Azim Hall take cash from a friend, go into a bodega, and, three minutes later, hand the friend two small white objects appearing to be crack. Mr. Hall was taken into custody. A search of his clothing revealed no contraband. He was then taken into a private detention room, asked to remove his clothing and bend over. A visual inspection revealed a string of plastic hanging out of his rectum. The officer thereupon pulled on the string and removed a plastic bag containing crack.

The New York Court of Appeals (their court of last resort) suppresses the drugs and, therefore, dismisses the indictment. It reasons that a manual body cavity search (the removal of the drugs) requires a warrant under the Supreme Court’s decision in Schmerber v. California (1966). In Schmerber, the Court held that a warrant would be needed for searches which intruded into the body, absent emergency circumstances.

In the course of so holding, the court noted that the circuits have split over whether a warrant is required for a visual body cavity search. The Supreme Court has expressly reserved judgment on this issue. A majority of the courts which have considered the issue have ruled that reasonable suspicion justifies such a search – CAs 2,5,7. On the other hand, the CA 9 and several Virginia state courts have held that a warrant is still required for such searches. The CA 8 also has precedent which seems to point in this direction. A quick google search also indicates that some states’ operating procedures require officers to seek warrants before performing such searches.

Split Noted: Can a District Court Require Its Sentence To Be Served Consecutively to an Anticipated, but Unimposed, State Sentence?

2008-03-25T16:26:00.000-05:00

Per United States v. Quintana-Gomez, 2008 WL 763368, *4 n. 2 (5th Cir. Mar. 25, 2008)

Gregorio Quintana-Gomez pled guilty to illegal re-entry of the United States. The Northern District of Texas imposed a sentence of 57 months, also ordering such sentence to be served consecutively to any federal sentence that might be imposed for a violation of supervised release then pending in the Southern District of Texas. Subsequently, the Southern District revoked Quintana-Gomez’s supervised release but sentenced him to six months, concurrent with the 57 month sentence.

18 U.S.C. § 3584 governs the imposition of consecutive or concurrent sentences. The text of the statute suggests that a court has the power to decide how order multiple sentences only when (1) multiple terms of imprisonment are imposed at the same time, or (2) a defendant is already subject to an undischarged term of imprisonment. The implication of this language is that the Northern District (being the first court and imposing a single sentence) had no authority to decide whether its sentence should be consecutive or concurrent. This Fifth Circuit panel agrees with this interpretation, holding that the Northern District’s order should be without effect.

This holding comports with the only other circuit to consider the question of conflicting federal court sentencing orders. In the course his discussion, however, Judge Jolly notes that the circuits have split over whether district courts have the power to require its sentence to be served consecutively to anticipated, but unimposed, state sentences. The CAs 5,8,10,11 state that the federal courts have such authority, whereas the CAs 4,6,7(dicta) hold that they are without it. The Fifth Circuit based its previous precedent on the dual sovereignty doctrine, which is plausible, but I think that that the other side of the split has the better understanding of a plain statute.

Split Widened: What Constitutes a Service Under the Airline Deregulation Act?

2008-03-25T12:41:00.000-05:00

Per Air Transp. Ass’n of Am. v. Cuomo, No. 07-5771-cv, *9-13 (2d Cir. Mar. 25, 2008)

Ever sat inside a plane on the runway for hours on end? Not a pleasant experience. If you have traveled out any of New York City’s three major airports, that feeling is certainly familiar; they are three of the four worst major airports in terms of on time performance. New York State passed the Passenger Bill of Rights in order to ameliorate the delay – it requires airlines to provide adequate food, drinking water, fresh air, lights, and sanitary services to passengers who have been delayed on the tarmac for more than three hours. The Air Transport Association, the representative organization of the airline industry, brought suit seeking declaratory and injunctive relief, arguing that the Passenger Bill of Rights was preempted by the federal Airline Deregulation Act and violated the dormant Commerce Clause.

The Airline Deregulation Act expressly preempts any state law or regulation concerning “a price, route, or service of an air carrier.” This Second Circuit panel holds that the Passenger Bill of Rights concerns the services of an air carrier. “Although this Court has not yet defined ‘service’ as it is used in the ADA, we have little difficulty concluding that requiring airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground delays relates to the service of an air carrier.”

In so holding, the panel recognizes that it is widening a circuit split. The CAs 3,9 have construed ‘service’ more narrowly – excluding any amenities and limiting ‘service’ to mean the prices, schedules, and airports served by the airline. CAs 1,4,5,7,11 (and now 2) all take a broader view of ‘service,’ defining it to include any anticipated provision of l>abor from the airline to its passengers.

Additional coverage from Wait a Second!. While that entry contends that this case is a “perfect” cert candidate, I disagree. In dicta, the panel noted that the Federal Aviation Act of 1958 may preempt the entire field of airline regulation. On this point, the CAs 3,9 are in line with the other circuits. Moreover, the cases in which the CAs 3,9 took their narrow view of the express preemption clause concerned personal injury torts, which even this decision recognizes might not be preempted. Although several states have proposed similar Bills of Rights, the Department of Transportation has requested comment on regulations setting a similar national standard, making this case unlikely to be repeated. Finally, I think that the Court may decide to give its recent preemption decisions (including one relied on in this case - Rowe) time to percolate through the circuits before taking up a case on the issue.

Splits Noted: Does Severe Attorney Misconduct Justify Equitable Tolling? Is Equitable Tolling More Justified in Capital Cases?

2008-03-25T09:43:00.001-05:00

Per Downs v. McNeil, 2008 WL 756348, *17-*26 (11th Cir. Mar. 24, 2008)

Ernest Downs was paid $5,000 dollars to kill Forest Jerry Harris in 1971. He was convicted of first degree murder and sentenced to death in 1978. Since then, he has filed numerous appeals. Beginning in 1992, Downs was represented by Florida’s Capital Collateral Regional Counsel organization, a special government body charged with assisting indigent death-row inmates. This appeal originates that same year, when CCRC filed a motion to vacate the sentence. That motion remained pending for five years, during which time AEDPA established a new time limit for state prisoners to seek federal habeas corpus. The district court summarily dismissed Downs’s habeas petition, so this Eleventh panel assumes Downs’s allegations, as set forth below, are true.

Downs was aware of the law and wrote his CCRC counsel several times to ensure that he comply with the strict one year deadline. Counsel informed Downs that a state petition had been filed (which would toll the federal deadline) when, in fact, it had not. The state petition was eventually filed on the last day of the federal timeline. After it was filed, the two attorneys at CCRC who were qualified to be lead counsel on a capital case resigned from Downs’s case, leaving CCRC without an attorney who could serve as lead counsel. When a new counsel was finally hired a year later, Downs informed him of the timing issue and sought to file for federal habeas immediately. The new CCRC counsel did not follow this directive and, indeed, returned Downs’s draft of a federal habeas motion. The Florida Supreme Court denied the motion to vacate and, nine days later, CCRC attorneys filed a petition for federal habeas corpus. The district court found the petition to be time-barred by AEDPA.

This panel of the Eleventh Circuit reverses, holding that serious attorney misconduct, more than mere negligence, constitutes an extraordinary circumstance which merits equitable tolling of AEDPA’s deadline. In order to qualify for tolling, such a circumstance must not only be ‘extraordinary’, but also beyond petitioner’s control and unavoidable even with due diligence. In so holding, the CA 11 widens a split between the CAs 3,5,9,10 (so holding) and the CA 7 (applying a bright-line rule that all attorney misconduct is attributable to the client under agency theory, and thus denying all tolling). The CA 4, in dicta, has suggested that it would agree with the CA 7. The Eleventh Circuit panel questions the agency law underpinnings of the Seventh Circuit’s rationale, noting that when an agent acts adversely to the principal, the principal cannot be charged with the agent’s misdeeds.

The panel states that its decision on this issue is not influenced by the fact that this is a capital case. Indeed, it cites circuit precedent which disfavors giving the fact that a case is a capital case any special weight. During this discussion, the panel notes that CAs 4,7,11 agree, whereas CAs 1,3 do treat death as different in determining whether equitable tolling should apply.

Totally regardless of the merits of Downs appeals, the course of behavior by the state capital attorneys in this case does raise larger questions regarding the justice of system...

Split Noted: What is the Proper Application of the Ministerial Exception?

2008-03-24T17:21:00.000-05:00

Per Rweyemamu v. Cote, 2008 WL 746822, *17 n. 4 (2d Cir. Mar. 21, 2008)

Plaintiff, Father Justinian Rweyemamu, filed a Title VII suit alleging that the Diocese of Norwich (CT) racially discriminated against him by denying him a promotion and, ultimately, firing him. This is not the first lawsuit arising from these facts; Father Rweyemamu had previously appealed to higher church authorities as well as filed state law claims of discrimination. The Church found ‘just cause’ for his removal. In this suit, as in the preceding state claims, the district court cited the ‘ministerial exception’ and dismissed the case.

Dating to approximately 1900, the ministerial exception is a doctrine that reflects an unwillingness of the courts to interfere with ecclesiastical hierarchies. The exception is part of the common law tradition, rather than specifically enacted by Congress into Title VII. This Second Circuit panel stresses the First Amendment heritage of the exception (both free exercise and establishment are implicated), emphasizing that it is not simply a matter of judicial abnegation. Just for fun, note that this decision concerning abnegation and the Catholic Church came down on Good Friday.

During the discussion of the ministerial exception, however, Judge Walker notes that the circuits have split on how to apply it. CAs 1,3,9,10 treat the exception as a waivable affirmative defense. CAs 6,7 treat it as a jurisdictional bar. Finally, CAs 5,11 treat the ministerial exception as just that – an exception meaning that Title VII does not apply to claims between a church and its ministers. This case is the first in which the Second Circuit affirms the existence of the ministerial exception. It does not delineate its view of the boundaries and application of the exception in this case, where any of the three views would bar judicial review. The panel therefore affirms, finding Title VII unconstitutional as applied to Father Rweyemamu’s claims.

Additional coverage from How Appealing and Wait a Second!.

UPDATED: As the comment from Wait a Second!'s author notes, I misread his entirely accurate summary. I have changed my mischaracterization and apologize.

Split Widened: Does § 1981 Create a Private Right of Action Against State or Municipal Actors?

2008-03-21T15:50:00.000-05:00

Per Arendale v. City of Memphis, 2008 WL 731226, *5-*9 (6th Cir. Mar. 20, 2008)

Plaintiff Michael Arendale, a white male, is eighteen year veteran of the Memphis Police Department. He brought a civil rights suit against the city, alleging that his African-American supervisor discriminated against him in assignments, created a hostile work environment, improperly suspended him, and retaliated against him after he had lodged complaints. The complicated factual basis for these complaints is irrelevant to the instant circuit split concerning § 1981.

In Runyon (1976), the Supreme Court recognized that § 1981 created an implied right of action against private defendants. Nonetheless, in Jett (1989), the Court held that the implied right of action did not extend to state actors. The question presented in this split is whether the 1991 Civil Rights Act’s amendment of § 1981 overruled Jett. The statutory language at issue is currently codified at § 1981(c), which provides that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”

The Ninth Circuit has held that this language demonstrates a clear intent to hold state actors liable (overturning Jett), whereas the CAs 4,10,11 have held that this language does not reach Jett’s holding. This Sixth Circuit panel sides with the majority school, noting that, although the 1991 act does create a new right against state actors, it is silent as to remedies. Any violation of § 1981 by a state actor, then, must be remedied through a § 1983 claim. This strikes me as the right result, being that the 1991 Act was passed after the Court had substantially limited its willingness to find implied rights of action absent some explicit indictation of Congress’s intent – witness the evolution from Borak – Cort – Cannon – Touche Ross – TransAmerica – through Sandoval.

Additional coverage from Split Circuits.

Split Created: Is a Clear Statement Required to Avoid the Application of the Doctrine of Uberrimae Fidei?

2008-03-21T12:39:00.000-05:00

Per New Hampshire Ins. Co. v. C'Est Moi, Inc., 2008 WL 732487, *3-*4 (9th Cir. Mar. 20, 2008).

“We consider the doctrine that's on everyone's lips: uberrimae fidei.” With that dramatic beginning, Chief Judge Kozinski authors an opinion creating a circuit split on this fascinating issue of maritime insurance contracts. Note, however, that Judge Kozinski probably does not mean this introduction facetiously – Eugene Volokh, a previous clerk, recently wrote a blog post concerning the phrase, and Judge McKeown wrote a long opinion concerning the doctrine just a month ago. The doctrine – which literally translated means ‘of the most abundant good faith’ – requires those seeking marine insurance to reveal every fact that is material to the risk.

The insurance policy in this case contained a provision which voided coverage if the applicant intentionally conceals or misrepresents facts relating to the insurance application or risk thereof. The question is whether this provision was sufficient to override the default application of uberrimae fidei. Judge Kozinski says no and requires an ‘unequivocal’ and ‘clear policy statement’ demonstrating both parties’ intent to supercede the common law obligation. In so holding, he acknowledges the creation of a circuit split with the CA 11, which held that similar language did override the default common law rule. Interestingly, this whole discussion appears to be dicta, because the panel continues to affirm the district court’s finding that there was material misrepresentation sufficient to void the insurance even under its own terms.

For additional coverage, see The California Appellate Report, The California Blog of Appeal, Decision of the Day, and the Volokh Conspiracy.

Split Created: Are Potential Affirmative Defenses Part of the Double Jeopardy Analysis?

2008-03-21T10:05:00.000-05:00

Per United States v. Davenport, 2008 WL 732491 (9th Cir. Mar. 20, 2008)

A forensic analysis of Winston Davenport’s computer revealed more than 800 pictures and videos containing child pornography. Davenport entered a plea agreement and pled admitted that he was guilty of the each of the elements of both receipt and possession of child pornography. He was sentenced to 78 months incarceration and lifetime supervised release for each crime, the sentences to be served concurrently. Davenport appeals his conviction, arguing that it violates the Fifth Amendment prohibition on double jeopardy because the same conduct underlies both counts. As this was not raised at sentencing, the Ninth reviews for plain error.

The Fifth Amendment prohibits multiple punishments for the same offense. Two statutes do not prohibit the same offense if one “requires proof of a fact which the other does not.” Blockburger, 284 U.S. 299, 304 (1932). Receipt and possession purportedly differ from each other in two important aspects. First, receipt requires that the images themselves travel in interstate commerce, whereas possession only requires that the materials used to make the image so have traveled. Secondly, the possession charge is subject to an affirmative defense and safe harbor for those who attempt to destroy the image or turn it in to law enforcement authorities.

The Ninth Circuit panel rejects the first distinction, reasoning that satisfaction of the commerce nexus for receipt would also satisfy it for possession. It continues to also reject the second basis for distinction, reasoning that this affirmative defense, which relies on mitigation rather than directly negating an element of the crime, does not require the government to prove an additional fact, per Blockburger. The panel therefore vacates the sentence and remands for the district court to vacate one of the two convictions. Judge Graber dissents, arguing that CAs 1,4 have applied Blockburger to include affirmative defenses. She notes that these two are the only circuits to have addressed the issue, although the panel cited the CA 2 in support of its rejection of mitigating affirmative defenses. She concludes her dissent by noting that congressional intent, which is an important double jeopardy inquiry, clearly authorizes separate punishments for the two crimes.

Split Noted: What Presumption Should Apply When Determining Whether Retiree Health Benefits Have Vested?

2008-03-20T13:48:00.000-05:00

Per Noe v. PolyOne Corp., 2008 WL 723769, *16-*17 (6th Cir. Mar. 19, 2008)

The ability of manufacturers to meet their legacy costs is an issue of great importance in the current troubled economy. Unilateral alteration or termination of vested benefits violates § 301 of the Labor Management Relations Act. Pension benefit plans are subject to mandatory vesting, whereas welfare benefit plans (such as the health benefits at issue in this case) do not automatically vest. Thus, courts must evaluate the agreements at issue in determining whether the parties to a welfare plan agreement intended the benefits to vest.

In this case, Plaintiffs (retirees and spouses of deceased retirees) brought suit against PolyOne Corporation (formerly a division of B.F. Goodrich) for unilaterally altering the health benefits to which the allege entitlement. The text of their agreement was unclear as to whether the health benefits were even extended to the employees at issue, much less as to whether they had vested. Relying on the fact that PolyOne treated the employees as if they had had the benefits until 2006, both the trial and appellate court answer the first question in the affirmative. On the vesting issue, the district court granted summary judgment to PolyOne, finding that they had not vested. This panel of the Sixth Circuit reverses, finding as a matter of law that the benefits had vested. Judge Sutton dissents in relevant part, arguing that, because there was evidence cutting both ways, the issue of whether the benefits had vested was not fit for summary judgment and should have been left for a jury to determine.

At the conclusion of his dissent, Judge Sutton notes a circuit split on the issue of what inference or presumption should apply when resolving the issue of whether welfare benefits under collective bargaining agreements have vested. He notes three possible positions, with relevant support:

Presumption against vesting because a company’s unchangeable promise to pay healthcare benefits for life is a significant and unusual one—particularly when it arises from a three-year contract. CAs 3,4,7,8.
Presumption in favor of vesting because retirees who lose benefits often are not in a position either to return to work or to require their union to negotiate new benefits. CA 6 – see the next paragraph.
No presumption because these contracts should be interpreted no differently from other collectively bargained contracts. CA 1.

Judge Sutton did not include the Sixth Circuit in category 2, arguing that Yard-Man was less a presumption and more an inference. Nonetheless, he acknowledges that the Sixth Circuit, in this case and others, appears to apply this precedent in a manner befitting a category 2 presumption.

If your legal realism bone is tingling, it could be because the Sixth Circuit is made up of several states, including Michigan and Ohio, at the core of the rust belt with strong labor union traditions.

Update: Does Winning a Preliminary Injunction Suffice To Make a Plaintiff the Prevailing Party for Purposes of § 1988 Attorneys’ Fees?

2008-03-19T11:49:00.000-05:00

Per Biodiversity Coalition Alliance v. Stem, 2008 WL 714047, *9-*12 (10th Cir. Mar. 18, 2008)

When I started this blog, I assumed it would take several months before any case I had written about would be considered by the Justices. Reality, however, proved otherwise. On behalf of a unanimous Tenth Circuit panel, Justice O’Connor wrote an opinion on this split (previously discussed here - 4th bullet).

In this case, Plaintiff BCA sued to prevent logging from taking place in a national forest. The District Judge granted a preliminary injunction, relying primarily on the equities of the case. While discovery was going forward, lightening literally struck the forest, creating a forest fire and forcing the Forest Service to develop alternate plans. The case was thus mooted, but BCA moved for attorneys’ fees, claiming to be the prevailing party under § 1988. Following previous precedent, Justice O’Connor and the panel hold that a preliminary injunction only satisfies the prevailing party inquiry under Buckhannon if it is granted based on the merits of a case, rather than the equities.

The CAs 2,5,6,7,11 agree; only the CAs 4,9 employ a different test. The Ninth Circuit believes that a preliminary injunction almost always satisfies the prevailing party standard unless the plaintiff subsequently loses on the merits, whereas the Fourth Circuit holds that a preliminary injunction can almost never satisfy Buckhannon’s requirements.

Also in this opinion, Justice O’Connor leaves three key words out of her description of the Court’s holding in Sole v. Wyner. The three words are in the brackets of this quotation: “The plaintiff there had filed a lawsuit claiming the state’s "Bathing Suit" rule, which required all patrons of state parks to wear[, at a minimum,] a thong and (if female) a bikini top, violated the First Amendment.” Those three words sort of change the rule, now don’t they? h/t How Appealing.

Split Widened: Does Requiring Sex Offender Registration Without a Hearing Violate Due Process?

2008-03-18T13:35:00.000-05:00

Per Doe v. Sex Offender Registry Bd., 2008 WL 661866 (Mass. Mar. 14, 2008)

Nota Bene: The holding of this case is predicated exclusively on the Massachusetts Declaration of Rights, and thus it both does not create a direct split based on the same law and is unreviewable by the Supreme Court. However, cases on both sides of the split have previously relied on the federal Constitution.

In 1979, Plaintiff Doe entered an Alford plea to a charge of rape and was sentenced to two years of probation. Twenty-two years after completing that probation without incident, the Sex Offender Registry Board notified him that he had to register because of his conviction. Doe moved for a hearing to present evidence that he posed no threat of recidivism. The statutory provisions governing this program left the Board no discretion to waive the registration requirements for those convicted of violent crimes (such as rape), and therefore the hearing was denied.

The registration statute, as applied in this case, is unquestionably retroactive; it does not permit any discretionary consideration of Doe’s current situation. Such statutory schemes, however, are regulatory as opposed to punitive, and thus do not violate double jeopardy. Retroactive regulatory laws in Massachusetts must pass an interest-balancing test, with the burden on the challenger to prove irrationality. The Massachusetts Supreme Judicial Court holds that the failure to hold a hearing violated Doe’s right to due process.

The Third Circuit (construing New Jersey law), District of the District of Columbia, The Oregon Supreme Court, and the Pennsylvania Supreme Court have all reached a similar conclusion under the Federal Constitution’s due process provisions. The Third Circuit and Pennsylvania Court both held that the state must provide pre-notification review process wherein the state bears the burden of proof that there is a potential risk of reoffense. The Massachusetts decision is also in line with opinions from Arkansas and Ohio, which have upheld registration statutes against due process challenges because of their provisions for hearings. Courts in Alaska, Illinois, Michigan, and Washington (state) have all come to the opposite conclusion, finding no due process violation in mandatory registration even in the absence of a hearing because the prior conviction was already a matter of public record. For more on various holding concerning the validity, construction, and application of community notification statutes, see 78 A.L.R.5th 489.

Also from Massachusetts on Friday – a noted split on whether the Sixth Amendment right to counsel attaches at the time of the issuance of a criminal complaint. In Commonwealth v. Holliday, 2008 WL 662242, *12 n. 18 (Mass. Mar. 14, 2008), the Supreme Judicial Court held that the answer depends on the purpose served by the complaint under state law. Prior precedent held that a complaint in Massachusetts does not trigger the Sixth Amendment, and the Court holds that Holliday’s Miranda waiver renders the Sixth Amendment violation, if any, harmless.

Split Noted: What is the Yardstick to Evaluate Decisions Whether to Recuse?

2008-03-18T09:49:00.000-05:00

Per United States v. Holland, 2008 WL 696903, *9 (9th Cir. Mar. 17, 2008)

Russell Holland pled guilty to charges of mailing threatening communications and threatening the President of the United States. He also has a long criminal record, including a prior conviction for threats against state officials. Holland somehow obtained the sentencing judge’s home number and, in keeping with his criminal behavior, left threatening messages prior to sentencing. At sentencing, the judge acknowledged these threats but stated that they “are attempts to manipulate the criminal justice system rather than threats as such.” He proceeded to impose sentence without objection, so the Ninth reviews his failure to recuse himself for plain error.

28 U.S.C. § 455 details the bases for recusals; § 455 (a) states that disqualification is mandatory “in any proceeding in which his impartiality might reasonably be questioned.” The circuit split noted in this case concerns what reasonably means. The CAs 2, 9, and 10 define the reasonable person standard to mean a well-informed, thoughtful observer who is not hypersensitive. On the other hand, the CA 7 applies a stricter standard because outside observers are more sensitive to the appearance of impartiality than the judiciary itself.

The Ninth Circuit panel creates an objective test to apply when a threat is the basis for recusal. The judge must evaluate (1) defendant’s capacity to carry out the threat, (2) the context of the threat, and (3) the purpose of the threat. The panel continues to note that the final factor is perhaps the most important. In this case, where the sentencing judge found that Holland was attempting to manipulate the system and had a history of making empty threats, any failure to recuse was not plainly erroneous.

Also from the Ninth yesterday, the best case name ever: United States v. Approximately 64,695 Pounds of Shark Fins. Coverage from Decision of the Day.

Splits Created or Widened in the Circuits - 3/11-3/13

2008-03-14T15:08:00.000-05:00

Can a Bankruptcy Court Release a Non-Debtor from Creditor Liability when the Creditor Objects? In re Airadigm Comms., Inc., 2008 WL 649704, *25-*30 (7th Cir. Mar. 12, 2008)

The facts of this litigation, which concerns a complicated second bankruptcy reorganization plan, are largely irrelevant to the strict legal question at the heart of the circuit split. Section 524(e) of the Bankruptcy Code provides that the “discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.” The question is whether this section precludes the non-consensual discharge of liability of a non-debtor, or merely defines the common effect of a Chapter 11 reorganization without limiting other possible equitable remedies.

As a matter of first impression, this panel of the Seventh Circuit finds that the latter definition is more consistent with the statutory text. Section 524(e) is a savings clause, and should be understood as such. “If Congress meant to include such a limit, it would have used the mandatory terms ‘shall’ or ‘will’ rather than the definitional term ‘does.’” *27. Furthermore, the traditional equitable powers of the bankruptcy court extend to marshalling the resources and permitting the non-consensual release on non-party liability. In so holding, the Seventh joins the CAs 2,4,6; the CAs 9,10 disagree and favor the first reading of this section. Even though the CAs 2,4,6,7 agree that discharge should be allowed in some circumstances, they differ as to what the governing standard should be. In this case, the Seventh Circuit finds that the release was appropriately tailored – subject to the other conditions of the plan, limited to liability in connection with the plan, and excluding willful misconduct – and necessary to effectuate the reorganization.

Does the Dual Sovereignty Doctrine Apply to the Sixth Amendment Right to Counsel? United States v. Burgest, 2008 WL 659550, *3-*8 (11th Cir. Mar. 13, 2008)

Earl Burgest was charged for possession of cocaine in violation of Florida law. Thereafter, he was interrogated by federal investigators and indicted on two counts of possession of crack-cocaine with intent to distribute. The district court admitted the statements made during the interrogation at his trial, and Burgest was convicted. This appeal challenges the statements’ admission because, even though Burgest signed a valid Miranda waiver of his Fifth Amendment rights, he asserts the interrogation violated his Sixth Amendment rights which had attached by virtue of the state law charge.

The Eleventh rejects this argument, noting that the Sixth Amendment right to counsel is offense specific. “Because the Sixth Amendment right to counsel is offense specific, Burgest's prior invocation of his right to counsel for the charged state offense did not attach to Burgest's uncharged federal drug offenses if the federal offenses are separate offenses from the state drug offense. We hold that where conduct violates laws of separate sovereigns, the offenses are distinct for purposes of the Sixth Amendment right to counsel.” *6. In so holding, the Eleventh widens a circuit split between the CAs 1,4,5 (applying doctrine) and the CAs 2,8 (not applying).

Splits Noted in the Circuits - 3/10-3/13

2008-03-14T05:10:00.000-05:00

Does Equitable Tolling of a Deadline Reset the Entire Clock? Gao v. Mukasey, 2008 WL 638061, *4 (7th Cir. Mar. 11, 2008).

Even the prolix Judge Posner finds the history of this immigration case too tangled to recount, so you know it has some interesting turns in there. Nonetheless, the basics are as follows – an IJ denied Yuan Gao asylum. Mr. Gao moved to reopen sixteen days after the 90 day deadline. The IJ denied his motion as untimely and the BIA summarily affirmed. Gao asserts that the delay should be excused because he did not know his first counsel had been ineffective, giving rise to a claim for relief, until he met with a new lawyer fifteen days after the clock had started to run.

The writing machine (49 books!) returns to form, starting down the path of evaluating whether IJs have the authority to grant extensions (because tolling “will rarely be available” if extensions are available) before changing gears without deciding that question. Instead, Judge Posner affirms the BIA, noting that seventy-five days should have been enough time to file the motion, and that equitable tolling only extends the deadline as much as necessary. The Multiloquent Magistrate notes that the circuits are split on this issue, however, with CAs 9,11 restarting the entire clock and CAs 6,7,8 not.

Does a Due Process Right to Be Informed of the Availability of Discretionary Relief Exist? What Degree of Reliance on the Availability of Discretionary Relief Is Necessary to Avoid Giving its Repeal Retroactive Effect? United States v. De Horta Garcia, 2008 WL 656909 (7th Cir. Mar. 13, 2008)

This case notes these two distinct splits. Although Judge Rovner concurs in the result based on prior circuit precedent, he disagrees with the Seventh’s position on both splits and urges reconsideration.

Jose De Horta Garcia was a permanent resident alien arrested in November 1995 (the dates are actually important) during a drug sting. In April 1996, Congress repealed INA § 212(c) which would have permitted De Horta Garcia to appeal for discretionary relief from any removal order resulting from his conviction. Horta pled guilty to his drug crimes in June 1996 and was ordered removed. He then illegally re-entered the U.S. twice, and was arrested twice (he served time once). This case arises out of his challenge to validity the original deportation order. De Horta Garcia asserts that the deportation order was invalid because he was denied his right to seek discretionary relief under the repealed § 212(c).

A collateral attack on a deportation order, as here, is only permitted if the alien satisfies three conditions. One of these conditions is that the entry of the deportation order was fundamentally unfair. De Horta Garcia asserts that the failure of the IJ to inform him of his right to seek discretionary relief under § 212(c) satisfies that condition. The Seventh, along with CAs 4,5,6,8,10,11, holds that such failure does not violate due process; only the CAs 2 and 9 disagree.

Even though the panel finds collateral review of the deportation order procedurally barred, they proceed to discuss whether or not De Horta Garcia could have obtained discretionary relief at the time of his deportation. The repeal of § 212(c) took place after De Horta Garcia’s criminal conduct, but before he pled guilty. Relying on previous precedent, the panel holds that the repeal has retroactive effect absent a showing of actual affirmative reliance by the alien, and thus De Horta Garcia could not have obtained relief. The Second and Ninth Circuit apply the same subjective actual reliance test, whereas the Third, Sixth, and Tenth Circuits only require objectively reasonable reliance. Finally, the Fourth Circuit has rejected any reliance test at all when conducting a retroactivity inquiry. Interestingly, the Supreme Court has denied cert for many of the cases on all sides of this split even though St. Cyr seems to suggest that the repeal ought not to be given retroactive effect.

PSA

2008-03-14T05:04:00.000-05:00

What do you do when three different blogs link to you in one day? Well, like the smart bloke I am, I take the next three days off and waste the readership spike. I guess that’s the way the cookie crumbles when you are working on your first *real* brief that will be submitted without others’ review. In all seriousness, however, thank you Feddie, S.cotus and Greg for your kind words and links.

Back to the meat and potatoes; I hope to catch up with all of the developments by midday. Unluckily for me, it seems as if the Circuits were similarly busy this week on creating, widening, or noting splits. The Eighth Circuit even managed to close a circuit split en banc – Tamenut v. Mukasey overruled prior precedent (11-1) to find that the decision whether to reopen removal proceedings sua sponte is committed to the BIA’s discretion by law and therefore unreviewable.

Splits Created or Widened in the Circuits - 3/10

2008-03-11T15:29:00.000-05:00

Several interesting decisions were handed down by the circuit courts of appeal on Monday. I was away from a computer for the last day, however, which means that some of the decisions summarized below have been pre-empted by other blogs.

Do Police Officers Need to Clarify Ambiguous Initial Waivers of Fifth Amendment Rights After United States v. Davis? United States v. Rodriguez, 2008 WL 623982, *11 (9th Cir. Mar. 10, 2008)

The Ninth Circuit creates a circuit split in this case, which has already been extensively covered by Decision of the Day, the California Appellate Report, and the California Blog of Appeal. I won’t rehash all of the angles covered in those posts, rather I argue that the Ninth Circuit is closer to the mainstream on this issue than Decision of the Day or a quick scan of the facts might suggest.

After being Mirandized, Rodriguez responded “I’m good for tonight.” This response could mean either ‘I don’t want to talk at all tonight’ or ‘I’m completely fine to sit and chat for the evening.’ The issue in the case is whether the police need to clarify whether suspects meant to waive their rights by such ambiguous statements. Most of the circuits required clarification prior to United States v. Davis. In Davis, a suspect signed a clear waiver of his rights, and then later ambiguously referenced his right to a lawyer. The Supreme Court said that officers did not need to clarify such ambiguous invocations. Since Davis, both the Seventh and Tenth Circuit have applied the logic of Davis to initial waivers. The Ninth refuses to follow suit, and limits Davis to applying only after a clear initial waiver.

While I think cert is likely (if the government pursues the issue) and the Ninth would be reversed, this decision is not a product of the ‘Ninth Circus.’ As a purely visual matter, the panel had two Republican appointed judges. The decision itself, however, points out its strong support, noting that the majority of State Supreme Courts to have considered the issue similarly limit Davis. They further noted that neither the Seventh nor the Tenth Circuit even discussed the initial/post waiver distinction.

Must a Court Hold a Faretta Hearing when a Defendant Moves to Proceed Pro Se? United States v. Cano, 2008 WL 623998, *4-*7 (5th Cir. Mar. 10, 2008)

This case involves the rare circumstance where both parties agree that the trial court committed reversible error. Following his trial conviction, Benjamin Cano filed two motions to proceed pro se at sentencing. In the first, he wanted to be treated as co-counsel. The trial court held a hearing on this motion, and Cano accepted representation thereafter. The second motion, filed eighteen days before sentencing, did not involve co-representation but rather self-representation standing alone. The court rejected the second motion without holding a hearing. Both the Government and Cano assert that this constitutes reversible error. In so holding, however, the Fifth Circuit states that failure to hold a Faretta hearing is per se error. This potentially broadens the split previously discussed on this blog between the Third Circuit (yes) and the CAs 4,7,9, and 10 (no)

Is Poisoning/Drugging a Crime of Violence? United States v. Rodriguez-Enriquez, 2008 WL 624443, *3-*11 (10th Cir. Mar. 10, 2008).

The Tenth Circuit analyzes the above question for eight pages and comes to the conclusion that drugging is not a crime of violence. In the application notes of the USSG § 2L1.2(b)(i)(A)(ii), a crime of violence is defined as one that has an element of physical force. The panel notes that the term ‘physical’ can describe either the consequence of the force or the method of the force. If the former, then drugging/poisoning certainly has physical effects; if the latter, then drugging/poisoning operates through chemical rather than physical pathways.

The panel notes that panels in both the Second and Ninth Circuits have issued opinions that conflict with prior circuit decisions. The latest Second Circuit case says that it is a crime of violence; the latest Ninth says that it is not. The Fifth Circuit en banc ruled that drugging was not a crime of violence, reversing a panel opinion on that point. With the entry of the Tenth Circuit, it looks like the Second Circuit is on the short side of this widening split.

When, other than judgment on the merits and consent decrees, is a Plaintiff the ‘Prevailing Party’ for Purposes of § 1988 Attorney’s Fees? Dearmore v. City of Garland, 2008 WL 624941, *5-*10(5th Cir. Mar. 10, 2008)

In § 1988, Congress permitted district courts, at their discretion, to award the prevailing party reasonable attorney’s fees in suits brought under certain statutes , creating an exception to the traditional American rule of civil litigation – that each side bears its own costs. The Court has defined the ‘prevailing party’ to mean a material alteration of the legal relationship of the parties with judicial imprimatur. See Buckhannon, 532 U.S. 598, 603-05 (2001). In so doing, it rejected any totally voluntary change in the legal relationship, but did not define what sort of decision fulfilled the necessary judicial imprimatur. In trying to fill this gap, “circuit courts considering this issue have announced fact-specific standards that are anything but uniform.” *7.

This case concerned a plaintiff who obtained a preliminary injunction, after which the defendant changed their behavior and mooted the case. This panel of the Fifth Circuit notes that the Ninth Circuit believes that a preliminary injunction almost always satisfies the prevailing party standard unless the plaintiff subsequently loses on the merits, whereas the Fourth Circuit holds that a preliminary injunction can never satisfy the requirements. The CAs 2,6,7, and 11 hold that a preliminary injunction satisfies the judicial imprimatur standard if the injunction is granted because of the probability of success on the merits, rather than the equities of the case.

The Fifth Circuit itself disavows any general test, preferring to apply the tests of the other circuits – “This Court has not yet created or endorsed a particular test. Instead, this Court has held that a plaintiff who obtains a preliminary injunction is not a prevailing party if he fails to qualify under any of the other circuits' tests.” *8. Applying that standard in the case, the panel notes that the district court’s opinion in granting the injunction did indicate a strong probability of success, and so the plaintiff can be considered a prevailing party. In so holding, the panel widens the split from the Fourth and does appear to create a test: “we hold that the plaintiff (1) must win a preliminary injunction, (2) based upon an unambiguous indication of probable success on the merits of the plaintiff's claims as opposed to a mere balancing of the equities in favor of the plaintiff, (3) that causes the defendant to moot the action, which prevents the plaintiff from obtaining final relief on the merits.” *12.

Spam and the First Amendment

2008-03-08T03:55:00.000-06:00

First Ever Felony Conviction for Spam Upheld Against First Amendment Challenge. Jaynes v. Commonwealth, 2008 WL 539744 (Va. Feb. 29, 2008)

Once recognized as the eighth worst spammer in the world, Jeremy Jaynes was the first man convicted of a felony for spamming. His was arrested under the Virginia Computer Crimes Act for sending over 55,000 spam letters in three days. He appealed his conviction on both First Amendment and Dormant Commerce Clause grounds, among others, and the Virginia Supreme Court narrowly (4-3) affirmed the conviction. As the Virginia law served as a model for both CAN-SPAM and most state anti-spam laws, this would seem to be quite an important and precedential victory.

A closer look, however, suggests that this victory may well be Pyrrhic. First, Jaynes did not challenge Virginia’s law on the ground that it was pre-empted by the CAN-SPAM act, a challenge which the Fourth Circuit’s decision in Omega World Travel v. Mummagraphics, Inc., 469 F.3d 348 (2006), suggests might have been successful. Secondly, the First Amendment challenge to the law was not rejected on the merits, but rather because the court found that Jaynes lacked standing to challenge the law, as a matter of Virginia standing law. See Slip Op. at *21 (“[I]t would appear that Virginia does not accord standing to a person, such as Jaynes, whose actions involve only otherwise unprotected commercial speech, to assert the First Amendment rights of those who engage in noncommercial speech.”). Thus, any victory against spammers would seem limited to this state.

The three dissenting Justices strongly criticized this view of First Amendment standing both as a matter of federal and state law. These are the only Justices to consider the merits of Jaynes’s First Amendment overbreadth claims; they found the statute overbroad and without any reasonable limiting construction to save it. The provisions of the law which forbid the falsification of IP addresses or domain names were also found to be unconstitutional by the dissenters. They reasoned that such falsification is the only possible way to achieve anonymity on the internet, and anonymous speech is a protected right in itself. Cf. Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 (2002).

While this is certainly not my area of expertise, a quick bit of searching suggests that this may be the first case directly discussing the constitutionality (rather than the preemption) of the criminalization of anonymous SPAM, as opposed to private regulation thereof (e.g. White Buffalo). The paucity of such cases, however, could stem from the fact that both the FTC’s regulations concerning CAN-SPAM and several state laws are limited solely to commercial speech, reducing any overbreadth concerns. The Virginia statute was not limited to commercial emails, but would have applied to any type of speech, including core political speech. If anyone knows of other cases, please feel free to mention them in comments.

Splits Noted in the Circuits - 3/4-3/7

2008-03-07T02:49:00.000-06:00

Does Labelling a Prisoner a Snitch, Standing Alone, Violate a Clearly Established Constitutional Right? Irving v. Dormire, 2008 WL 613121, *13-*14 (8th Cir. Mar. 7, 2008)

William Irving, an inmate in Missouri's Jefferson City Correctional Center, filed suit against several prison officials alleging, inter alia, that the officials violated his Eighth Amendment rights by labelling him a snitch. Such actions, Irving asserted, violated the officials' duty to take reasonable measures to guarantee the safety of the inmates. In this case, Irving was not attacked after being labelled a snitch, so his injury, if any, would be the fear he experienced.

This panel of the Eighth Circuit notes that the circuits are split on the issue of whether labelling an inmate a snitch, absent other harm, is a violation of the Eighth Amendment -- CAs 9,10, and 11 hold that it is, whereas CA 7 requires an actual injury rather than fear. Despite this split, the panel affirms the denial of qualified immunity on this point, finding that labelling an inmate a snitch is a violation of a clearly established constitutional right. Perhaps the other alleged actions of these prison officials -- death threats and permitting beatings -- influenced the decision on this point.

Under the FLSA, Does a Jury Decision on Willfulness Resolve the Question of Good Faith for Purposes of Liquidated Damages? Rodriguez v. Farm Stores Grocery, Inc., 2008 WL 601845, *32-*36 (11th Cir. Mar. 6, 2008)

This whole decision is well worth a read, not least due to its citation of the ‘tipsy coachman’ doctrine, complete with relevant poem. This doctrine urges appellate courts to affirm trial court judgments made on erroneous grounds if any alternative theory could support them. “The pupil of impulse, it forc'd him along, His conduct still right, with his argument wrong; Still aiming at honour, yet fearing to roam, The coachman was tipsy, the chariot drove home.”

More to the point of this post, however, the decision notes a split of authority on the question of whether a jury decision on the issue of whether an employer’s conduct was willful necessarily resolves the question of whether the employer acted in good faith for the purposes of liquidated damages. Interestingly enough, however, the panel then continues on to resolve the split in a way that does justice to both sides and makes eminent sense – no, a jury’s finding is not necessarily preclusive as to the issue of liquidated damages. The way to square the circle is to focus on where the burden of proof is placed. For willfulness, the burden is on the plaintiff/employee; for good faith, it is on the defendant/employer. Thus a finding of willfulness necessarily includes a finding of bad faith, but not vice-versa.

What Constitutes an ‘Obligation’ to Trigger the Reverse False Claims Act?
Hoyte v. Am. Nat’l Red Cross, 2008 WL 564649, *21 (D.C. Cir. Mar. 4, 2008)

Michelle Hoyte initiated a qui tam action against the American Red Cross alleging that (i) the Red Cross mishandled blood supplies in contravention a consent decree, and thus owed money to the government and that (ii) she was entitled to ‘whistleblower’ protection and had been wrongfully discharged for investigating the mishandling. Such protections only apply when the investigation is in furtherance of a viable qui tam action.

The government intervened in the suit and dismissed charge i. The District Court also dismissed charge ii because it determined that, even assuming that there was a violation of the consent decree, the Red Cross did not have an obligation to pay anything to the government. The terms of the consent decree stated that the FDA may assess a fine, not that it will – the panel finds this to mean that there is no obligation to pay money, thus no viable FCA action, thus no protections.

Judge Tatel, dissenting on this point, notes that the circuits are split on what constitutes an obligation under the FCA: “Moreover, we must keep in mind that nearly all employees who investigate and bring fraud claims are laypeople, not lawyers. Expecting laypeople to know with any degree of certainty whether their employers' actions violate the FCA's often vague provisions is simply unrealistic, especially when courts themselves disagree over what constitutes a viable FCA claim." (citations omitted)

Indian Sovereignty

2008-03-07T01:15:00.000-06:00

As noted in the introduction to this blog, I definitely fall into the Thomas camp of jurisprudence. One of my favorite opinions is his concurrence in United States v. Lara, 541 U.S. 193, 215 (2004) (upholding the constitutionality of the Duro-fix), where he characteristically and succinctly stated the fundamental paradox at the root of American Indian law: “the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously.”

The tension lies between their status as separate sovereigns and the doctrine of congressional plenary power over tribes. As an original Constitutional matter, it seems fairly clear to me which of these two views must win out. The Commerce Clause mentions Indians along with states and foreign nations. As Philip Frickey wrote in a fantastic law review article (119 Harv. L. Rev. 431), “[o]ne need not be able to translate noscitur a sociis to recognize that the Constitution places tribes on a sovereign plane.” On the other hand, there is little textual basis at all to find a plenary power over tribes – the only argument that could be made is to rely on Article 4’s provisions for Congress’s power over the territories.

This textual analysis is also supported by considering the historical situation at the time of the founding. Indian tribes were far larger, stronger, and more independent then. The powers which were needed to deal with them were precisely those specifically delegated to the national government – war, peace, treaty-making, and commerce. Thus, Indian law should be a federal preserve (outside Settlement Act and Pub. L. 280 states), but not a plenary federal preserve.

Indeed, for much of America’s history, the Supreme Court has been the most important protector of Indian sovereignty, even as against the political branches. The President disregarded one of first Supreme Court decisions upholding tribal sovereignty – purportedly stating “John Marshall has made his decision, now let him enforce it!” While this story may be apocryphal, it certainly reflects Jackson’s sentiments; the missionaries were not released until pardoned by the Georgia Governor in 1833. Congress has, at times, explicitly attempted to terminate the tribes as political entities -- which acts the Court has narrowly construed.

In recent years, however, these positions have been reversed. Since Nixon’s presidency, both the President and Congress have been active in supporting tribal sovereignty and self-determination. On the other hand, the recognized trend in the Supreme Court has been to cut back on the sovereign rights of the tribes. In large part, this trend is a result of striving for coherence amid the antimony of the two competing tensions discussed above. The solution is to return to the original understanding of the Constitution, reject the plenary power position, and engage in a government-to-government relationship with the tribes.

The flip side of this argument, on the other hand, is to recognize that the plenary power doctrine arose roughly the same time as the Insular Cases doctrine, and to make Indian law cohere with that doctrine. To do so would severely limit Tribal sovereignty and affirm congressional plenary power. A key difference, however, between the land at issue in the Insular Cases and the tribes, is that the former territories are unquestionably under the control of the U.S. and no other sovereign, whereas the tribes are a constitutionally recognized seperate sovereign. Furthermore, this position runs contrary to Congress's stated desire for Indian self-determination.

Splits Noted in the Circuits - 3/3-3/4

2008-03-04T23:18:00.000-06:00

I'm on break, so apologies for the typographical errors as I try to catch up on the recent opinions - I'm away from a bluebook and my internet connection does not allow me to check for spelling errors. Further, any comments to let me know this blog is catching on would be most appreciated. Finally, the third case in this list is not a new case, but stems from a denial of rehearing en banc.

Is False Identification - or Misprision of a Felony - a Crime of Moral Turpitude? Blanco v. Mukasey, 2008 WL 553869, *8, n. 4 (9th Cir. Mar. 3, 2008)

One is not eligible for cancellation of removal if one has committed a crime of moral turpitude, which the Supreme Court has determined includes any crime that involves fraud. In this case, Blanco applied for cancellation of of removal, but was rejected because of, in relevant part, his conviction for false identification to a peace officer. The Ninth Circuit, relying on a prior Pregerson/Reinhardt opinion, holds that, because the California law's definition of false identification does not require the defendant to have materially benefited from that act notwithstanding any impediment to the investigation, the crime does not categorically involve moral turpitude. In so doing, the Ninth deepens a split from the CA 7 and 11.

Does a Motion for Reduction of Sentence as a Matter of Discretion, Rather than Legality, Toll AEDPA's One Year Limitation Period for Collateral Review? Alexander v. Sec., Dep't of Cor., 2008 WL 553294, *15-*18 (11th Cir. Mar. 3, 2008)

This isn't a pure split; it turns on state law motions to reduce sentences which have slight differences. In pertinent part, however, these motions are based in the same laws -- laws which allow the district court to reduce a sentence imposed not as a matter of legal review, but rather clemency. The Eleventh Circuit holds, in accordance with its own precedent and joining with the CA 3 and 4, that applications for leniency should not toll AEDPA's strict deadlines for the review of the legality of a sentence; only the Tenth Circuit disagrees.

Is there a Presumption of Prosecutorial Misconduct When the New Charges Involve Distinct Factual Circumstances, United States v. Jenkins, 2008 WL 564980, *7-*11 (9th Cir, Mar. 4, 2008)

As noted in the introduction, this case is not a new panel opinion, but rather comes to this blog from the denial of rehearing en banc. It is also fitting to cover this opinion, as tomorrow's general interest post on Indian Sovereignty is inspired by the author of the panel opinion at issue.

Sharon Ann Jenkins unequivocally admitted to alien smuggling (1) while testifying in her own defense against charges of marijuana smuggling (2); she had also admitted the former crime in previous statements to police. On the first day of the jury's deliberation in a trial for crime (2), the U.S. Attorney sought to indict the defendant for the admitted crime (1). The District Court dismissed the charges as a prophylactic measure to protect Jenkins' Fifth Amendment rights and the panel affirmed. The panel created a rule that if, absent the in court testimony, there was sufficient evidence to charge the second (1) crime at the time of the first (2) trial, a presumption of vindictiveness arises.

Judge O'Scannlain, on behalf of six others, dissents from the denial of rehearing en banc, noting that both the 7th and 11th Circuits have held that when different criminal conduct is charged, there is no presumption of vindictiveness and no burden shifting. Furthermore, the 1st, 8th, and 10th Circuits have held that charges arising out of distinct factual nuclei cannot give rise to any presumption of vindictiveness. Perhaps lightning will strike once again?

Pop Culture in the Circuits

2008-02-29T17:03:00.000-06:00

Given that the search for any interesting splits netted nothing that struck my fancy in the last two days, I thought I would take a riff off of Judge Rader's citation of South Park or Judge Coar's homage to the Middle Ages and see what elements of pop culture have filtered into the sacred pages of the Federal Reporter.

While Judge Evan's citation to Ludacris (comment 8)to clarify the spelling of 'ho' may win him the all time prize, I decided to see what the Judges (or their clerks) have been watching recently. Can you guess which of the top 20 TV shows for the period 1990-2000 or 2000-present has been cited the most in the last eight years? Answer, with methodology explained, in the comments...

Splits Noted in the State High Courts - 2/25-2/26

2008-02-27T08:52:00.000-06:00

Is it a Fifth Amendment Violation to Deny a Sentence Reduction Under Sentencing Guideline § 3E1.1 (acceptance of responsibility) when the Defendant Remains Silent? State v. Burgess, 2008 WL 495630, *9 (N.H. Feb. 26, 2008)

This criminal appeal only raised a claim under the self-incrimination provision of the New Hampshire Constitution, rather than the Federal Constitution. The former has been interpreted more broadly than the latter, but federal precedent is used by the State courts as relevant.

In sentencing this defendant to the maximum possible sentence for his attempt to escape by using a shoelace to disable his leg restraints (interesting, this actually worked), the trial court considered the defendant's silence as a reason for not granting clemency. The Supreme Court affirmed, finding that the defendant had admitted the underlying acts and therefore there was no violation of the privilege against self-incrimination.

In the course of its determination, the New Hampshire Supreme Court noted a split of circuit authority on the interpretation of §3E1.1: "We note that a majority, if not all, of the Federal Circuit Courts of Appeal that have addressed the issue left open in Mitchell have held that it is not a Fifth Amendment violation to deny a reduction of a sentence under the acceptance of responsibility provision of the Sentencing Guidelines, section 3E1.1, because a defendant refuses to admit guilt or express remorse. See United States v. Cohen, 171 F.3d 796 (3d Cir.1999); United States v. Larkin, 171 F.3d 556 (7th Cir.1999); United States v. Villasenor-Cesar, 114 F.3d 970 (9th Cir.1997); United States v. Clemons, 999 F.2d 154 (6th Cir.1993); United States v. Frazier, 971 F.2d 1076 (4th Cir.1992); United States v. Singer, 970 F.2d 1414 (5th Cir.1992); United States v. Lyles, 946 F.2d 78 (8th Cir.1991); United States v. Rogers, 921 F.2d 975 (10th Cir.1990); United States v. Parker, 903 F.2d 91 (2d Cir.1990); United States v. Henry, 883 F.2d 1010 (11th Cir.1989); United States v. Paz Uribe, 891 F.2d 396 (1st Cir.1989). But see United States v. Frierson, 945 F.2d 650 (3d Cir.1991); United States v. Oliveras, 905 F.2d 623 (2d Cir.1990); United States v. Perez-Franco, 873 F.2d 455 (1st Cir.1989). These courts reason that, in refusing to grant a reduction of a sentence under section 3E1.1, a sentencing court is simply denying a benefit to the defendant, rather than imposing a penalty upon his exercise of the privilege."

Splits Created or Widened in the Circuits - 2/25-2/26

2008-02-26T19:16:00.001-06:00

Can an individual member of an LLC be held personally liable under the Fair Debt Collection Practices Act without piercing the corporate veil? Kistner v. Law Offices of Michael P. Margelefsky, LLC., 2008 WL 495345, *3-*5 (6th Cir. Feb. 26, 2008).

Judge Gilman’s opinion for this Sixth Circuit panel answers this question in the affirmative, creating a circuit split with the Seventh Circuit. Looking at several district court opinions which have confronted the issue, the Sixth Circuit decides that material participation in the debt collection is sufficient to expose an individual to liability, whereas the Seventh Circuit requires facts sufficient to pierce the veil of protection provided by LLCs.

Can the Bureau of Prisons create a categorical rule regarding prisoner placement given 18 U.S.C. § 3621(b)’s factors for individualized consideration? Muniz v. Sabol, 2008 WL 497056 (1st Cir. Feb. 26, 2008)

This panel opinion of the First Circuit unanimously says yes, contrary to four 2-1 opinions of CA 2,3,8, and 10. The other circuits generally found that Congress mandated individualized consideration of five factors for transfer to a CCC, and such a blanket rule does not the mandated consideration. The First Circuit, however, finds that the five factors are not exhaustive of all possible considerations and categorical rulemaking is permissible – “Because the individualized consideration of the five factors mandated by 18 U.S.C. § 3621(b) is directed at the overall placement decision, and because the question of the appropriateness of CCCs for inmates during the first ninety percent of their sentences is an issue of general applicability within the scope of Lopez, the 2005 regulations are a reasonable exercise of the Bureau of Prisons' discretion in carrying out its duties under 18 U.S.C. § 3621(b).”

Raising this issue will often be difficult given the Scylla and Charbydis of ripeness and mootness in the timing of such claims. I also doubt the issue is of sufficient importance to be granted certiorari.

How big is the Quarles/Public Safety Exception to Miranda warnings? United States v. Liddell, 2008 WL 482410 (8th Cir. Feb. 25, 2008)

In a decision already discussed by Robert Loblaw, the Eighth Circuit extends the public safety exception to Miranda warnings to include the facts of this case – the police pull over a car for playing music too loudly and arrest its driver after discovering his license is suspended. They found marijuana on the drivers body and an unloaded weapon in the car. They proceeded to ask the driver, now handcuffed without being Mirandized, if there was anything more they should know about. The driver admitted knowledge of the presence of the gun, a statement which he tried to exclude in a pre-trial motion. The Eighth Circuit upheld the decision that the statement was admissible because of the risk to the officers. Judge Gruender concurs, agreeing that circuit precedent requires this outcome, but that such precedent has strayed from the limited exception in Quarles – there are no longer exigent circumstances. He also notes that the First Circuit applies the exception similarly broadly, whereas the Fourth, Fifth, and Sixth have maintained a narrow exception.

Miranda caselaw has been rife with splits. Another one of interest, is whether a general warning that the suspect has a 'right to counsel' suffices to inform a defendant that he or she has a right to counsel during the interrogation rather than later. Here, however, the lineup of the circuits is more predictable.....

Splits Noted in the State High Courts - 2/20-2/22

2008-02-23T08:48:00.000-06:00

As with the post below, these decisions from state high courts note splits of authority. In any post on this blog that is entitled 'splits noted', the point at issue in these divisions will not be dispositive to the case. The pincite provided to state court decisions will be to the Westlaw document.

Is a Faretta canvass required for a valid waiver of the right to counsel? Hooks v. State, 2008 WL 451230, *4 n. 16 (Nev. Feb. 21, 2008).

The Nevada Supreme Court overturns Jerry Hook's conviction for sale of a controlled substance because the trial court did not inquire, on the record, into the adequacy of his waiver of his right to counsel and the record as a whole did not demonstrate that he did so knowingly and voluntarily. In the process, the panel noted that the Third Circuit requires that the trial court conduct an on the record colloquy with the defendant, whereas CA 4,7,9,10 look to the record of the case as a whole for evidence of knowledge. A fun random fact is that Nevada is one of the few states that does not have an intermediate appellate court. However the code provision establishing the number of Supreme Court Justices (7) states that when such a body is created, the number of justices will be reduced to 5 -- Nev. Rev. Stat. § 2.010.

Can a Strickland claim be raised against standby counsel? State v. Fischer, 2008 WL 451754, *4, ¶ 18 (N.D. Feb. 21, 2008)

In what appears to be a trend for the day, Paul Fischer is a criminal defendant who chose to represent himself. Perhaps proving the old saw that a [defendant] who represents himself has a fool for a client, he then sought to bring an ineffective assistance of counsel claim..... against his standby attorney. The North Dakota Supreme Court notes a split of authority of whether such a claim is even possible -- citing a Seventh Circuit case for the negative, and a California state case for the affirmative. The Court denies the claim, holding that Fischer only asserted subjective displeasure, rather than objective malpractice, with the attorney's performance. Nonetheless, the Court did not suggest what objective norms should be used to judge the prevailing professional skill of standby attorneys.

Splits Noted in the Circuits - 2/20-2/22

2008-02-22T23:41:00.001-06:00

The decisions linked below noted circuit splits on several issues. None of the disagreements were dispositive to the cases, and the courts at issue left the question open. As will be the custom of this blog, citations will not be in the formal bluebook style. Rather, a hyperlink to the slip opinions (.pdf) will be provided and the pincite (if any) will be to that document. A Westlaw citation will be provided for ease of access for the reader.

Judicial Estoppel -- Bradford v. Wiggins, 2008 WL 444976, *7 n.2 (10th Cir. Feb. 20, 2008).

The Tenth Circuit applies an abuse of discretion standard when reviewing a judicial estoppel decision. It notes that the CA 1,3,4,5,8,9,11, and Fed apply the same standard, while the Sixth applies a de novo standard (Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 897 (6th Cir.2004)).

Is the Government Contractor Defense an Immunity Defense? -- Isaacson v. Dow Chem. Co., 2008 WL 466111, *17 (2d Cir. Feb. 22, 2008)

In one of the trio of Agent Orange decisions handed down by the Second Circuit on the same day (for an overview of all, see Decision of the Day), Judge Hall notes the split of authority on the question of whether the government contractor defense, first recognized by Justice Scalia's opinion in Boyle, derives from governmental immunity. He cites conflicting Second Circuit authorities, a Fifth Circuit case finding in the affirmative, and a Ninth Circuit case finding in the negative. Nonetheless, the panel does not offer its own conclusion, as it is unnecessary to the issue of whether it is a federal defense.

Questioning in Handcuffs - Custodial Interrogation? -- United States v. Harris, 2008 WL 465289, *6 (D.C. Cir. Feb. 22, 2008)

The D.C. Circuit notes a split on whether the placement of handcuffs on a suspect renders any questioning a custodial interrogation for the purposes of Miranda. Dale Harris was placed in handcuffs and taken to the hallway outside her apartment during the execution of a search warrant. After citing conflicting authorities from the Second and Ninth Circuits, the Court assumes a Miranda violation, if any, was harmless.

A New Blog Enters the Universe...

2008-02-22T21:58:00.000-06:00

... Can anybody hear it? Doubtful, and it will remain so for a while. This blog will offer just about nothing unique, but rather seeks to augment the offerings of some of my favorite blogs (honored below). Comments will be open, but I would ask for civil discourse. Any and all emails are welcomed to klerk blog (one word) over at google's mail program.

The primary inspiration of this blog is the invaluable Robert Loblaw's Decision of the Day. I hope to skim decisions of the Circuit Courts (hence the name) and state courts of last resort for any particularly important or interesting cases. Circuit splits and issues of first impression will be emphasized, although Split Circuits is another great resource. About once a week I will interject, however, with a post on a topic that sparks my interest. These will tend to fall into politics, law, or history -- Texas delegate allocation, the residual hearsay exception, or the Termination Era Indian policies. My inspirations here are legion, but particularly deserving of mention are the now defunct Southern Appeal and Legal Fiction.

About me -- I am a third-year law student. I have accepted an appellate clerkship for next year, and am planning on starting at a firm thereafter. My politics tend to be in the libertarian school; my jurisprudence tends to be in the conservative/Thomas school. I have previously been a guest author, under a different assumed name, on a conservative weblog. I have chosen to remain anonymous, and would ask anyone who thinks they know me to respect that.