Split Noted: Is The Stain Of Conviction A Collateral Consequence

Per Murray v. United States (1st Cir. Jan. 4, 2013)

A petition for the writ of coram nobis, or its lesser known cousin coram vobis, is often the last desperate filing made by a post-jailhouse lawyer.  The writ permits correction of "fundamental" errors in order to "achieve justice" when "no other remedy" is available.

The writ has been abolished in civil actions, superceded by Rule 60.  But it lives on in criminal actions.  In large part, it exists to provide review of convictions after the prisoner has served his sentence.

There is little enough jurisprudence regarding the legal standard applicable to the writ.  Nonetheless, the circuits appear to agree on certain fundamental elements that a petitioner/convict must prove:

1. a fundamental error in the prior proceedings
2. reasonableness in not having acted earlier (i.e., though habeas)
3. collateral consequences from the prior proceedings (standing)
4. interests of justice require granting the writ (no alternative remedy)

In this case, the First Circuit briefly notes  (11 n.6) an earlier decision (United States v. George, 676 F. 3d 249, 254 (1st Cir. 2012)) which described a circuit split on whether a conviction, standing alone, can satisfy the third element.  The CA1, CA2, CA3, CA5, and CA7 hold a conviction insufficient.  The CA4, CA9, and CA11 hold a conviction sufficient, and the CA6 has, sub silentio, done the same.

For me, the CA4, CA9, and CA11 have the better of the argument.  As the Supreme Court recently reiterated, albeit in the context of declining to extend the presumption:

 In the context of criminal conviction, the presumption of significant collateral consequences is likely to comport with reality.  As we said in Sibron, it is an "obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences."

Spencer v. Kemna, 523 U.S. 1, 12 (1997) (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)).  And in Sibron itself, the Court held:

[I]t is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State's right to impose it on the basis of some past action.

392 U.S. at 57.  So long as Sibron remains good law, as indeed it is, lower courts should apply a presumption of collateral consequences to criminal convictions.

Moreover, there is a larger point.  Assuming a petitioner proves the other elements for coram nobis, i.e., a fundamental error that was uncorrectable earlier, why should the petitioner (rather than the government) have the burden of proving collateral consequences?  The fundamental error, or the existence of a grave miscarriage of justice, should be sufficient, in itself, to overcome the interests of finality absent proof that the erroneous judgment has no effect.

Take, for example, two people convicted of honest-services fraud under 18 USC 1341 before McNally limited the statute to money or property fraud.  One is convicted in 1976 and sentenced to five years; the other convicted in 1986.  Should the former be deprived of the same remedy afforded the latter (i.e., expungement of his conviction) simply because simply because his appeals were exhausted and his sentence was served?  I think not.  Both did not commit a crime.  Both deserve to have their record and reputation restored, regardless of whether the former can actually prove a detrimental consequence.

Finally, the note on the first page of the First Circuit opinion suggests that Judge Boudin may be ill.  I have always admired Judge Boudin's intelligence and opinions.  I hope that my reading of the note is mistaken, but if it is not, I wish him all the best.

Split Widened: Parker Antitrust Immunity and Interlocutory Appeals

 Per Auraria Student Housing v. Campus Village Apts., LLC (10th Cir. Jan. 4, 2013)

Per an agreement between UC-Denver and Campus Village, a private apartment complex located a half mile from school, most incoming freshmen are required to live at Campus Villiage.   Auraria, another apartment complex located two miles from the school, alleges that this agreement violated the Sherman Act.

Campus Village appeals the denial  of its motion to dismiss, asserting state action/Parker immunity from the antitrust laws.  Auraria, in turn, moves to dismiss the appeal for want of jurisdiction.

The CA10 notes a split over whether a denial of Parker immunity, like a denial of qualified immunity, is immediately appealable under the Cohen doctrine.  The CA4 and CA6 say no; the CA5 and CA11 (and apparently others, including the CA7) say yes.  (p.3.)

The CA10 claims not to have to resolve this split, because it is dealing with a private party appeal, which even the CA5 would not permit.  Appeal dismissed.  (The CA11 would permit the appeal, however, so at least one split is widened.  (p. 7.))

I dont buy it.  But it likely doesn't matter given the Supreme Court's docket.

I honestly dont know where I come down on the general question of interlocutory appeals by actual public entities/officials (such as municipal governments).  My best guess is that Parker was a statutory interpretation case driven by a 10th/11th Amendment immunity, given the time at which it was decided, and so appeals should be permitted.  This is the logic of the CA5.  On the other hand, post-Garcia v. SAMTA, Parker could be viewed as a statutory interpretation case driven by federalism, not immunity, concerns.  (Leaving aside my views of Garcia, that case would seem to remove any constititional bar to having the Sherman Act apply to the states.)  This is the logic of the CA4 and CA6.

Regardless, once interlocutory appeals are permitted under Parker at all, I see no viable distinction between municipalities and private entities.  If the private entity's claim of Parker immunity is correct, it--like a municipal entity--is, in effect, an agent of the state tasked with carrying out the state policy and clothed authority of the state, i.e., a public official.  The only potential difference between a private entity and a municipal entity is that, for Parker to apply to a private entity, there must be active state supervision.  California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980).  But this distinction weighs in favor of, not against, interlocutory appeals.  Cf. Richardson v. McKnight, 521 U.S. 399, 413 (1997) (reserving question of whether qualified immunity would protect private prison guards if there had been active state supervision).

Nonetheless, I am not sure this discussion matters all that much.  First, if a state is actively supervising a private entity, and that private entity is sued, likely the state could appear as amicus to assert its own immunity.  The lack of intervention may give the lie to the claim of state authority.  Second, and more importantly, the Supreme Court recently heard argument in FTC v. Phoebe Putney Health Sys., Inc., and seemed inclined to impose a clear statement rule for state authorization of a private monopoly. 

Split Widened: Test for Reimbursement of Residential Placement Under IDEA

Per Jefferson County Sch. Dist. R-1 v. Elizabeth E. (10th Cir. Dec. 28, 2012)

IDEA is a font of federal litigation.  In this case, the Tenth Circuit widens an extant circuit split concerning the interpretation of 20 U.S.C. § 1412(a)(10)(C)(ii) by creating a new, third position.

The statute provides: 

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.
 

20 U.S.C. § 1412(a)(10)(C)(ii) (emphases added).  The italicized terms are defined elsewhere in the statute:

• Special education:  "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including . . . instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings." 20 U.S.C. § 1401(29)(A). 
•  Related services: "transportation, and such developmental, corrective, and other supportive services (including . . . psychological services, . . . social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services . . . and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education" 20 U.S.C. § 1401(26)(A).
• Secondary school: "a nonprofit institutional day or residential school, including a public secondary charter school, that provides secondary education, as determined under State law. . . ." 20 U.S.C. § 1401(27)

In brief, then, the statute permits reimbursement of private educational expenses if (1) the public school did not provide free and appropriate public education (FAPE) , and (2) the private school is proper (or appropriate).  (See p. 10.)

The Tenth Circuit notes that the circuits have, to date, taken two approaches in determining whether (2) a private school is appropriate.  The CA1, CA2, CA3, CA4, CA6, CA8, CA9, CA11, and CADC all largely employ an "inextricably intertwined" test that evaluates whether the general purpose of the private  placement  and/or specific private services are "segregable" from the educational goal.  If segregable, not reimburseable; if not segregable, reimburseable.  (pp. 10-13, 20.)

In contrast, the CA5 and CA7 espouse a "primarily oriented" standard that examines whether (1) the general purpose of the private placement is primarily educational (as opposed to medical/social/etc.) by determining whether it is necessary to achieve an educational goal, and (2) the specific private expenses are related to that educational goal by determining if progress is measured by an educational yardstick.  (pp. 14, 20-21.)

After laying both these tests out, the Tenth Circuit declines to follow either.  Although it explicitly disclaims doing so (p. 21 n.5.), the CA10 adopts a new test tied directly to the statutory language:

(2) Determine whether the private placement is a state-accredited elementary or secondary school; if not, the placement is not reimbursable.  20 U.S.C. §§ 1412(a)(10)(C)(ii), 1401(27); then

(3) Determine whether the private placement provides special education, i.e., "specially designed instruction . . . to meet the unique needs of a child with a disability"; if the placement provides no such instruction, it is not reimbursable.  Id. § 1401(29)(A).

(4) If the private placement provides additional services beyond specially designed instruction to meet the child's unique needs, determine whether such additional services can be characterized as "related services" under the Act.

 (pp. 19-20.)

In all, my hat is off to the CA10.  As longtime readers know, Im a textualist.  And this test is the only one that adheres to the statute's text, as the opinion itself repeatedly points out.  Moreover, the opinion is also successful in pointing out the flaws in the other tests.  The segregable test is overinclusive, in the sense the dialysis is certainly necessary to an education, but not at all educational.  (p. 12.)  And the primarily oriented test is both over and under inclusive, in that it would exclude purely medical services necessary to allowing educational instruction, but include educational services that are not "required" for an appropriate education.  (p. 23.)

Again, an interesting split.  I hope other circuits take note.  But the case makes a poor vehicle because the lower courts (both district and administrative) concluded that reimbursement was proper under any of the tests.  (p. 15.)

Split Widened: Remedy for 6th Amendment Violations During Competency Hearings

Per United States v. Ross (6th Cir. Dec. 31, 2012)

Oh, the irony of law.  In a case of apparent first impression, (see p. 10), a divided panel of the Sixth Circuit concludes that it is statutory and constitutional error to permit a criminal defendant, who has already been deemed competent and waived representation, to represent himself at a later competency hearing.  (p. 8-9, 11.)

That's right.  First, the defendant was deemed competent.  Then, the competent defendant knowingly waived representation.  Third, at the request of the prosecutor, the district court held a second competency hearing where it permitted the defendant to represent himself.  Finally, and after conviction, the defendant claims error in permitting self-representation at the second competency hearing (when he had already invoked his right to self-representation).

One would think the doctrines of invited error and/or waiver would come into play.  But of course, those doctrines assume knowing and voluntary, i.e., competent, acts.

The circuit split comes in determining the remedy for this constitutional error, or classifying the type of error.  (See p. 16.)  Ordinarily, Sixth Amendment violations are treated as "structural" errors, with a per se rule of reversal regardless of prejudice.  The CA3--and now the CA6--applies that rule to denials of counsel at competency hearings.  Nonetheless, the CA10 and CADC have treated denial of counsel for a competency hearing as "trial" error, subject to constitutional harmless error analysis. 

Partially because of the bizarre facts of this case, I would be inclined to treat the error as "trial" error, in line with the approach of the CA10 and CADC.  The two traditional justifications for the "structural" error doctrine are not present. 

First, because the Court had already held a competency hearing and permitted Defendant to waive representation (at which times the Defendant was represented), there was no "structural defect affecting the framework within which the trial proceeds."  Arizona v. Fulminante, 499 U.S. 279, 310 (1991).  Instead, there was a mere "error in the . . . process" of this one hearing.  Id. 

Second, because the defendant had already been found competent to waive counsel initially, his lack of representation does not "necessarily render [the] criminal trial . . . unreliable."  Neder v. United States, 527 U.S. 1, 9 (1999).  Instead, the initial competency hearing, as well as the waiver of counsel hearing, create an situation where the error--like "trial" errors generally--may “be quantitatively assessed in the context of other evidence presented in order to determine whether [the procedure] was harmless beyond a reasonable doubt.”  Fulminante, 499 U.S. at 307-08.

Of course, my view depends on the particular facts of this case, whereas classification of constitutional errors must necessarily be done generally.  In all, an interesting circuit split and decision, but one not likely to get further review due to the fact-bound nature of the case and the split.

UPDATE:  additional coverage from Split Circuits

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I'm Ba-ack

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