Monday, March 31, 2008

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

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?

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?

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.

Friday, March 28, 2008

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

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?

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?

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?

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.

Thursday, March 27, 2008

Fun: Split on the Supreme Court’s Role?

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?

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.

Wednesday, March 26, 2008

Commentary: Second Amendment

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?

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.

Tuesday, March 25, 2008

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

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?

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?

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...

Monday, March 24, 2008

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

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.

Friday, March 21, 2008

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

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?

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?

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.

Thursday, March 20, 2008

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

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:
  1. 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.
  2. 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.
  3. 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.

Wednesday, March 19, 2008

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

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.

Tuesday, March 18, 2008

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

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?

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.

Friday, March 14, 2008

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

  • 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

  • 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.


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.

Tuesday, March 11, 2008

Splits Created or Widened in the Circuits - 3/10

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)

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.

Saturday, March 8, 2008

Spam and the First Amendment

  • 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.

Friday, March 7, 2008

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

  • 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

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.

Tuesday, March 4, 2008

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

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?