Pop Culture in the Circuits

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

• 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

• 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

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

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...

... 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.