Per Dupree v. Warden (11th Cir. May 7, 2013)
The CA11 requires a district judge to rule on all grounds raised in a habeas petition. Here, the magistrate overlooked one claim. The petitioner did not object, and the district court accepted the magistrate's report.
This CA11 panel does the right thing, and abides by panel precedent requiring a finding of reversible error. (p. 8-9.) In so doing, however, the panel notes that the CA11 is an outlier in a three-way circuit split regarding the effect of failing to object to a magistrate's report, and recommends an en banc to shift position. (p. 14-19.)
Most Lenient: The CA11 rule, which is the same as the CA8 and CA9, holds that failure to object has no effect on the de novo review of legal issues. For factual issues, the CA11 and CA8 employ plain error review (see middle paragraph below), while the CA9 deems such objections waived (see strictest paragraph).
Middle: The CA3 and CA5 always employ plain error review for both factual and legal issues. They permit reversal if the appellant can show (1) plain (2) error that both (3) affects substantial rights and (4) undermines the fairness or integrity of judicial proceedings.
Strictest: The CAs 2, 4, 6, 7, and 10 apply a firm waiver rule. Failure to object waives appellate review of both factual and legal issues. Such waiver may be waived by the court in the interests of justice, and does not apply if the magistrate does not warn of the effects of failing to object.
Here the panel recommends adopting the strictest approach. I agree. A number of considerations support this approach.
First, judicial economy, as the Supreme Court stated in Thomas v. Arn, 474 U.S. 140 (1985)--a decision affirming, but not requiring, the CA6's strict approach.
Second, if--as required--a magistrate warns of the effect of failing to object, then the failure to object is indeed the intentional relinquishment of a known right. United States v. Olano, 507 U.S. 725 (1993). And even if only done by counsel, counsel is an agent for the party, and the party is responsible for the failings of his counsel. Link v. Wabash R.R. Co., 370 U.S. 626 (1962). Such waiver argues against the middle-ground approach of the CA3 and CA5.
Third, imposing a waiver rule is not jurisdictional, so appellate courts still retain authority to correct manifest injustices. Hormel v. Helvering, 312 U.S. 522 (1941).
Fourth, adopting a waiver rule would bring Civil Rule 72 in line with Criminal Rule 59, adopted in 2005.
In sum, all indications point to adopting the strictest rule. And while the CA11 may go en banc to adopt that approach, the rulemaking committee should make the waiver rule explicit in civil rule 72, as it did in criminal rule 59. That would spare the resources necessary for the CA8 and CA9 to also go en banc to adopt this appropriate rule.
Showing posts with label Splits Noted Circuits. Show all posts
Showing posts with label Splits Noted Circuits. Show all posts
Friday, May 10, 2013
Sunday, March 24, 2013
Split Noted: Is Application of a Lengthened Limitations Period Retroactive?
Per U.S. ex rel. Carter v. Halliburton Co. (4th Cir. Mar. 18, 2013)
All qui tam plaintiffs should take note of this opinion, if only because has the effect of freezing the False Claims limitations bar in October 2002 (and thus also lengthens any potential damages period).
In dissent, Judge Agee notes (29 n.4) a circuit split on whether application of a limitations period that is lengthened after the relevant conduct is retroactive (and hence impermissible). To provide an example, on Date X, Defendant does something for which there is a 1 year limitations period. At some point after Date X, the legislature changes the period to 2 years. In year 2, plaintiff files suit. Can Defendant raise a viable limitations defense?
Judge Agree agrees with the CA6 that the answer is no. Giving effect to the new limitations period is not retroactive, because limitations regulates not the underlying conduct, but when the Plaintiff may file suit. In the words of the CA6 opinion cited by Judge Agee, "the 1991 Act applies to Forest's conduct, the filing of the complaint, which occurred after the enactment of the statute. Therefore, application of the 90-day statute is prospective in this case." Thus, in this view, the new limitations period applies because the key date for retroactivity is the filing of the complaint.
I disagree, and side with the CA9. The key date is not when Plaintiff finally files suit, but rather the date of passage/enactment of the limitations period. Under this analysis, whether the hypothetical defendant can raise a limitations defense depends on whether the legislature acted in year 1 (no), or in year 2 (yes).
If the legislature acted in year 1, all is fine. Plaintiff still had a viable claim, we presume he was on notice of the statute lengthening the limitations period. The longer period thus did not affect anybody's substantive rights: Plaintiff still had a cause of action, Defendant still had potential liability.
But if the legislature acted in year 2, then applying the new statute of limitations is retroactive. Plaintiff no longer had a viable cause of action, defendant had escaped liability. Applying the new limitations period would thus create a new substantive right in plaintiff, and a new liability in Defendant, when both had previously expired at the end of year 1.
Thus, the key point for retroactivity analysis is (1) the status of Plaintiff's claim on (2) the date the statute was passed/took effect.
Ultimately, this analysis calls to mind Justice Scalia's concurrence in Landgraf itself. Justice Scalia, joined by Justices Thomas and Kennedy, criticized the majority for focusing on the substance/procedural divide, rather than looking at what conduct the statute was meant to regulate. As any Civ Pro student knows, categorizing limitations periods as substantive or procedural so flummoxed the Supreme Court in Guarantee Trust that Justice Frankfurter crafted the outcome-determinative test to hold that--as with other parts of substantive law--state limitations periods should be applied in federal courts in diversity. This result alone demonstrates how limitations periods can affect substantive rights. By following the concurring opinion, one is left with the conclusion that the CA9 was correct in holding:
All qui tam plaintiffs should take note of this opinion, if only because has the effect of freezing the False Claims limitations bar in October 2002 (and thus also lengthens any potential damages period).
In dissent, Judge Agee notes (29 n.4) a circuit split on whether application of a limitations period that is lengthened after the relevant conduct is retroactive (and hence impermissible). To provide an example, on Date X, Defendant does something for which there is a 1 year limitations period. At some point after Date X, the legislature changes the period to 2 years. In year 2, plaintiff files suit. Can Defendant raise a viable limitations defense?
Judge Agree agrees with the CA6 that the answer is no. Giving effect to the new limitations period is not retroactive, because limitations regulates not the underlying conduct, but when the Plaintiff may file suit. In the words of the CA6 opinion cited by Judge Agee, "the 1991 Act applies to Forest's conduct, the filing of the complaint, which occurred after the enactment of the statute. Therefore, application of the 90-day statute is prospective in this case." Thus, in this view, the new limitations period applies because the key date for retroactivity is the filing of the complaint.
I disagree, and side with the CA9. The key date is not when Plaintiff finally files suit, but rather the date of passage/enactment of the limitations period. Under this analysis, whether the hypothetical defendant can raise a limitations defense depends on whether the legislature acted in year 1 (no), or in year 2 (yes).
If the legislature acted in year 1, all is fine. Plaintiff still had a viable claim, we presume he was on notice of the statute lengthening the limitations period. The longer period thus did not affect anybody's substantive rights: Plaintiff still had a cause of action, Defendant still had potential liability.
But if the legislature acted in year 2, then applying the new statute of limitations is retroactive. Plaintiff no longer had a viable cause of action, defendant had escaped liability. Applying the new limitations period would thus create a new substantive right in plaintiff, and a new liability in Defendant, when both had previously expired at the end of year 1.
Thus, the key point for retroactivity analysis is (1) the status of Plaintiff's claim on (2) the date the statute was passed/took effect.
Ultimately, this analysis calls to mind Justice Scalia's concurrence in Landgraf itself. Justice Scalia, joined by Justices Thomas and Kennedy, criticized the majority for focusing on the substance/procedural divide, rather than looking at what conduct the statute was meant to regulate. As any Civ Pro student knows, categorizing limitations periods as substantive or procedural so flummoxed the Supreme Court in Guarantee Trust that Justice Frankfurter crafted the outcome-determinative test to hold that--as with other parts of substantive law--state limitations periods should be applied in federal courts in diversity. This result alone demonstrates how limitations periods can affect substantive rights. By following the concurring opinion, one is left with the conclusion that the CA9 was correct in holding:
We do not find the substantive/procedural dichotomy helpful in deciding this case. Regardless of whether a statute is "substantive" or "procedural," it may not apply to cases pending at the time of enactment if the new statute would prejudice the rights of one of the parties. . . . [W]e hold that a newly enacted statute that lengthens the applicable statute of limitations may not be applied retroactively to revive a plaintiff's claim that was otherwise barred under the old statutory scheme because to do so would "alter the substantive rights" of a party and "increase a party's liability."
Monday, March 18, 2013
Split Noted: Can A Defendant Obtain Fees Based On A Rejected Rule 68 Offer of Judgment?
Per UMG Recordings, Inc v. Shelter Capital Partners LLC (9th Cir. Mar. 14, 2013)
I have always been surprised how few defendants use Rule 68. To facilitate settlement, that rule
authorizes defendants to make an "offer of judgment" before trial. Such offer must specify terms (money, injunction, apology, etc.) to be entered as a formal court judgment if accepted.
The rule itself encourages defendants to make such offers because they come at no cost (other than the offered/confessed judgment) to defendants. To encourage Plaintiffs to accept such offers, or at least consider them, the rule provides that, "[i]f the judgment that the [plaintiff] finally obtains is not more favorable than the unaccepted offer, the [plaintiff] must pay the costs incurred after the offer was made." Fed. R. Civ. P. 68(d).
In Marek v. Chesney, 473 U.S. 1, 9 (1985), the Supreme Court held that "costs" for purposes of Rule 68 included "all costs properly awardable under the relevant substantive statute or other authority. . . .
Thus, . . . where the underlying statute defines 'costs' to include attorney's fees, we are satisfied such fees are to be included as costs for purposes of Rule 68."
Given this authority, it would seem clear that where a plaintiff (1) brings a federal suit under a fee shifting statute that defines costs to include fees, (2) rejects an offer of judgment, and (3) ultimately receives a judgment less favorable than the offer, the defendant would be entitled to costs, including its post-offer fees.
But that is not the position of the majority of courts, as this CA9 opinion notes. (p. 58 n.25.) Indeed, it appears that only the CA11 adheres to this view, while the CAs DC, 1, 4, 5, 7, 8, and 9 all disagree.
I agree with the CA11. The majority misreads Marek's use of "properly awardable." For example, many majority-school opinions find fees not "properly awardable" because the underlying statute authorizes fees only to the "prevailing party", and defendants did not prevail.
This mistakes the baseline for determining who "prevailed." The proper yardstick is not the status quo ante litem, but rather the status quo post confessionem (my translation of offer). For example, before litigation, the damages baseline for prevailing is $0. But after an offer, the damages baseline for prevailing becomes the amount of the offer. Thus, if a plaintiff achieves more than an offer, it has still prevailed. But, if a plaintiff rejects an offer and ultimately receives less, the defendant has prevailed.
The structure of the rules mandates utilizing the status quo post confessionem yardstick. For example, Rule 54(d) presumes that costs--other than fees--will be awarded to the prevailing party. But nobody, not even the CA9 here, disputes that Rule 68 mandates that post-offer, non-fee costs be awarded to the offeror. Thus, Rule 68(d) in essence renders the offeror the prevailing party for purposes of non-fee costs.
No majority-school opinion offers any convincing reason why Rule 68(d) should alter the meaning of "prevailing party" for non-fee costs under Rule 54(d), or at least suspend operation of Rule 54(d)'s "prevailing party" provision for non-fee costs, but not do the same for "prevailing party" statutes where fees are defined as an element of costs. (One could try to tease out a theory based on the Rules Enabling Act, but Marek rejected such a theory, which was espoused in Justice Brennan's dissent.)
Moreover, as a policy matter, the majority-school creates a one-way ratchet that is inconsistent with the objectives of Rule 68. The fee shifting statute at issue here allows both prevailing defendants and plaintiffs to recover their fees equally. (Thus distinguishing the Supreme Court's gloss on the civil-rights attorneys' fees.) Thus, there is no policy reason to be more protective of plaintiffs in this situation. Yet, the CA9 permits plaintiffs to avoid paying defendants' attorneys fees even if they recover less than an offer, but still recover their own attorneys' fees if they recover more. This undermines the incentives to settle, contrary to the express purpose of Rule 68.
This is an issue ripe for review, or at least rulemaking. Given the Court's concern about floods of litigation, one would think that a stronger interpretation of Rule 68--i.e., the CA11--should win out.
I have always been surprised how few defendants use Rule 68. To facilitate settlement, that rule
authorizes defendants to make an "offer of judgment" before trial. Such offer must specify terms (money, injunction, apology, etc.) to be entered as a formal court judgment if accepted.
The rule itself encourages defendants to make such offers because they come at no cost (other than the offered/confessed judgment) to defendants. To encourage Plaintiffs to accept such offers, or at least consider them, the rule provides that, "[i]f the judgment that the [plaintiff] finally obtains is not more favorable than the unaccepted offer, the [plaintiff] must pay the costs incurred after the offer was made." Fed. R. Civ. P. 68(d).
In Marek v. Chesney, 473 U.S. 1, 9 (1985), the Supreme Court held that "costs" for purposes of Rule 68 included "all costs properly awardable under the relevant substantive statute or other authority. . . .
Thus, . . . where the underlying statute defines 'costs' to include attorney's fees, we are satisfied such fees are to be included as costs for purposes of Rule 68."
Given this authority, it would seem clear that where a plaintiff (1) brings a federal suit under a fee shifting statute that defines costs to include fees, (2) rejects an offer of judgment, and (3) ultimately receives a judgment less favorable than the offer, the defendant would be entitled to costs, including its post-offer fees.
But that is not the position of the majority of courts, as this CA9 opinion notes. (p. 58 n.25.) Indeed, it appears that only the CA11 adheres to this view, while the CAs DC, 1, 4, 5, 7, 8, and 9 all disagree.
I agree with the CA11. The majority misreads Marek's use of "properly awardable." For example, many majority-school opinions find fees not "properly awardable" because the underlying statute authorizes fees only to the "prevailing party", and defendants did not prevail.
This mistakes the baseline for determining who "prevailed." The proper yardstick is not the status quo ante litem, but rather the status quo post confessionem (my translation of offer). For example, before litigation, the damages baseline for prevailing is $0. But after an offer, the damages baseline for prevailing becomes the amount of the offer. Thus, if a plaintiff achieves more than an offer, it has still prevailed. But, if a plaintiff rejects an offer and ultimately receives less, the defendant has prevailed.
The structure of the rules mandates utilizing the status quo post confessionem yardstick. For example, Rule 54(d) presumes that costs--other than fees--will be awarded to the prevailing party. But nobody, not even the CA9 here, disputes that Rule 68 mandates that post-offer, non-fee costs be awarded to the offeror. Thus, Rule 68(d) in essence renders the offeror the prevailing party for purposes of non-fee costs.
No majority-school opinion offers any convincing reason why Rule 68(d) should alter the meaning of "prevailing party" for non-fee costs under Rule 54(d), or at least suspend operation of Rule 54(d)'s "prevailing party" provision for non-fee costs, but not do the same for "prevailing party" statutes where fees are defined as an element of costs. (One could try to tease out a theory based on the Rules Enabling Act, but Marek rejected such a theory, which was espoused in Justice Brennan's dissent.)
Moreover, as a policy matter, the majority-school creates a one-way ratchet that is inconsistent with the objectives of Rule 68. The fee shifting statute at issue here allows both prevailing defendants and plaintiffs to recover their fees equally. (Thus distinguishing the Supreme Court's gloss on the civil-rights attorneys' fees.) Thus, there is no policy reason to be more protective of plaintiffs in this situation. Yet, the CA9 permits plaintiffs to avoid paying defendants' attorneys fees even if they recover less than an offer, but still recover their own attorneys' fees if they recover more. This undermines the incentives to settle, contrary to the express purpose of Rule 68.
This is an issue ripe for review, or at least rulemaking. Given the Court's concern about floods of litigation, one would think that a stronger interpretation of Rule 68--i.e., the CA11--should win out.
Tuesday, March 12, 2013
Split Noted: Who Bears The Burden On Earmarking for 11 U.S.C. 547(b)
Per In re ESA Environmental Specialists, Inc. (4th Cir. Mar. 1, 2013)
Under 11 U.S.C. 547(b), "[a] trustee in bankruptcy may avoid any transfer of an interest of the debtor in property" to a creditor for an antecedent debt made within 90 days of the petition, while the debtor was insolvent, that enables the creditor to recover more than it would in bankruptcy.
Courts have created an earmarking "affirmative defense" to such avoidance actions. The earmarking defense applies when new creditor makes a loan to the debtor specifically for (or earmarked for) the payment of a designated old creditor. In brief, the defense recognizes that the new loan never becomes part of the debtor's estate. Moreover, the position of other creditors are not hurt by such an earmarked loan--the new creditor is simply substituted for the old creditor, and will receive the same pro-rata share of the bankruptcy proceeds as all other creditors.
In this opinion, the CA4 notes a circuit split on who bears the burden of proving the earmarking "affirmative defense." (p. 8-9, n.6.) It is unquestioned that the trustee bears the general burden of proving the avoidability of a transfer. But a majority of circuits (the CAs 3, 6, and 9) hold that, if the trustee proves the general avoidability of a transfer, the burden shifts to the defendant to prove that the funds were earmarked. In contrast, the CA8 holds that the trustee has the burden of proving that the earmarking defense does not apply.
I agree with the CA8. To be sure, the majority school is consistent with the general rule that the burden of proving affirmative defenses is on the defendant. But I do not believe that the earmarking defense is actually an affirmative defense (the CAs 3 and 9 hold as much). Rather, it is a negative defense--if proven, it shows that the transfer was not "of an interest of the debtor." The debtor never acquired full--i.e., equitable and legal--title to the transferred funds. Instead, to the extent the debtor receives earmarked funds, it acts more in the capacity of a trustee, receiving legal but not equitable title to the funds, with no independent control but instead subject to an obligation to transfer the funds to the old debtor. Thus, the burden of disproving this negative defense rests with the party bearing the burden of proof--the trustee.
Under 11 U.S.C. 547(b), "[a] trustee in bankruptcy may avoid any transfer of an interest of the debtor in property" to a creditor for an antecedent debt made within 90 days of the petition, while the debtor was insolvent, that enables the creditor to recover more than it would in bankruptcy.
Courts have created an earmarking "affirmative defense" to such avoidance actions. The earmarking defense applies when new creditor makes a loan to the debtor specifically for (or earmarked for) the payment of a designated old creditor. In brief, the defense recognizes that the new loan never becomes part of the debtor's estate. Moreover, the position of other creditors are not hurt by such an earmarked loan--the new creditor is simply substituted for the old creditor, and will receive the same pro-rata share of the bankruptcy proceeds as all other creditors.
In this opinion, the CA4 notes a circuit split on who bears the burden of proving the earmarking "affirmative defense." (p. 8-9, n.6.) It is unquestioned that the trustee bears the general burden of proving the avoidability of a transfer. But a majority of circuits (the CAs 3, 6, and 9) hold that, if the trustee proves the general avoidability of a transfer, the burden shifts to the defendant to prove that the funds were earmarked. In contrast, the CA8 holds that the trustee has the burden of proving that the earmarking defense does not apply.
I agree with the CA8. To be sure, the majority school is consistent with the general rule that the burden of proving affirmative defenses is on the defendant. But I do not believe that the earmarking defense is actually an affirmative defense (the CAs 3 and 9 hold as much). Rather, it is a negative defense--if proven, it shows that the transfer was not "of an interest of the debtor." The debtor never acquired full--i.e., equitable and legal--title to the transferred funds. Instead, to the extent the debtor receives earmarked funds, it acts more in the capacity of a trustee, receiving legal but not equitable title to the funds, with no independent control but instead subject to an obligation to transfer the funds to the old debtor. Thus, the burden of disproving this negative defense rests with the party bearing the burden of proof--the trustee.
Monday, March 11, 2013
Split Noted: Does U.S.S.G. 3C1.2 Require Nexus?
Per United States v. Gray (10th Cir. Mar. 5, 2013)
This unpublished disposition notes the CA10's continued disagreement with opinions from the CAs 5 and 6 holding that the 2-level adjustment for reckless endangerment by flight in U.S.S.G. 3C1.2 requires some nexus to the offense of conviction. (p.10-11.) Here, as before, the CA10 determines it is unnecessary to resolve this issue because--whether or not required--nexus is present. (p. 12.) The full text of the Guideline is:
First, U.S.S.G. 1B1.3(a)(1) provides in relevant part that "adjustments in Chapter Three[] shall be determined on the basis of . . . all acts and omissions committed . . . by the defendant . . . that occurred during the commission of the offense of conviction . . . or in the course of attempting the avoid detection or responsibility for that offense." The emphasized language indicates that must be a link between the flight proscribed by U.S.S.G. 3C1.2 and the underlying offense.
Second, the introductory commentary to Chapter 3 of the guidelines, where U.S.S.G. 3C1.2 is located, provides that the "following adjustments are included in this Part because they may apply to a wide variety of offenses." Thus, the commentary also suggests an offense-specific linkage.
Third, the offense-specific linkage is supported by the history of U.S.S.G. 3C1.2. When the Guidelines were first propounded, there was no "flight" adjustment. And when the flight adjustment of 3C1.2 was added in 1990, the Commission made explicit that it derived from 3C1.1, governing obstruction. (This relation is also documented in the title of Part C of Chapter 3--"Obstruction and Related adjustments). The guideline for obstruction--to which the flight adjustment must be related--clearly requires a linkage to the offense, calling for a two-level increase if "the defendant willfully obstructed or impeded . . . the administration of justice with respect to . . . the instant offense of conviction."
Finally, another part of the history of 3C1.2 supports an offense-specific linkage. One year after the flight adjustment was created, the Commission made clear that "during flight" was to be construed broadly, such that reckless endangerment of a police officer in flight was at least subject to a 2-level increase under U.S.S.G. 3C1.2, if a 3-level increase under U.S.S.G. 3A1.2(b) did not apply. At the time, 3A1.2(b) also created an explicit offense-specific link, requiring assaultative conduct creating "during the course of the offense or immediate flight therefrom", i.e., "proximate in time to the commission of the offense." I view the distinction between these two as whether the flight is assaultative conduct. That said, this is the weakest argument, becuase it could be argued that the amendment was intended to encompass situations that were not linked, or proximate in time, to the offense of conviction.
The counter-argument, though not explicitly made by the CA10, is that U.S.S.G. 1B1.3(a)(1) is not exclusive. U.S.S.G. 1.1B3(a)(4) permits Chapter Three adjustments to be determined on the basis of "any other information specified in the applicable guideline," and the commentary to this provision explicitly states that it is intended to include information related to the defendant's "state of mind." Thus, U.S.S.G. 3C1.2 calls for consideration of "other information" relating to a defendant's "state of mind": namely whether "the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." Moreover, this counter-argument is bolstered by the fact that nexus does not appear to be required for U.S.S.G. 3A1.2(c)(2), which no published opinion has construed (at least that I found).
Ultimately, although I agree with the CA5, there is valid room for dispute. This dispute may not matter all that much, because if nexus is required, a sentencing court can (and should, in my view) vary 2 levels up to take into account the defendant's behavior where nexus is lacking.
What does matter to practitioners, however, is that the Sentencing Commission's website be accurate. And it is not. The Commission provides materially different versions of U.S.S.G. 1B1.3(a)(1), depending on whether one is viewing the Guidelines in pdf form, or html form.
Here is the PDF version, as quoted above:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor,
or enterprise undertaken by the defendant in concert with others, whether or not
charged as a conspiracy), all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or responsibility for that offense;
In this version, the structure of the paragraphs makes clear that the last sentence, beginning "that occurred", modifies both (A) and (B). In contrast, the HTML version provides:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant; and
(B)in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in concert with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity, that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of attempting to avoid detection
or responsibility for that offense;
In the HTML version, the structure of the paragraphs erroneously suggests that the clause beginning "that occurred" modifies only (B). This inference is grounded in the location of the semi-colons and the last antecedent rule ("that" would modify "reasonably foreseeable acts and omissions").
The Sentencing Commission needs to change its coding.
This unpublished disposition notes the CA10's continued disagreement with opinions from the CAs 5 and 6 holding that the 2-level adjustment for reckless endangerment by flight in U.S.S.G. 3C1.2 requires some nexus to the offense of conviction. (p.10-11.) Here, as before, the CA10 determines it is unnecessary to resolve this issue because--whether or not required--nexus is present. (p. 12.) The full text of the Guideline is:
If the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels.On its face, this language does not require nexus. But the CA5 relied on a different provision (U.S.S.G. 1B1.3(a)(1)) to conclude that nexus was still nonetheless required. I had written a post sharply critical of the CA5's position before I realized that the Commission's website provided an inaccurate html version of U.S.S.G. 1B1.3. More on the website issues anon. Now, with the accurate version, I am inclined to agree with the CA5 for four reasons.
First, U.S.S.G. 1B1.3(a)(1) provides in relevant part that "adjustments in Chapter Three[] shall be determined on the basis of . . . all acts and omissions committed . . . by the defendant . . . that occurred during the commission of the offense of conviction . . . or in the course of attempting the avoid detection or responsibility for that offense." The emphasized language indicates that must be a link between the flight proscribed by U.S.S.G. 3C1.2 and the underlying offense.
Second, the introductory commentary to Chapter 3 of the guidelines, where U.S.S.G. 3C1.2 is located, provides that the "following adjustments are included in this Part because they may apply to a wide variety of offenses." Thus, the commentary also suggests an offense-specific linkage.
Third, the offense-specific linkage is supported by the history of U.S.S.G. 3C1.2. When the Guidelines were first propounded, there was no "flight" adjustment. And when the flight adjustment of 3C1.2 was added in 1990, the Commission made explicit that it derived from 3C1.1, governing obstruction. (This relation is also documented in the title of Part C of Chapter 3--"Obstruction and Related adjustments). The guideline for obstruction--to which the flight adjustment must be related--clearly requires a linkage to the offense, calling for a two-level increase if "the defendant willfully obstructed or impeded . . . the administration of justice with respect to . . . the instant offense of conviction."
Finally, another part of the history of 3C1.2 supports an offense-specific linkage. One year after the flight adjustment was created, the Commission made clear that "during flight" was to be construed broadly, such that reckless endangerment of a police officer in flight was at least subject to a 2-level increase under U.S.S.G. 3C1.2, if a 3-level increase under U.S.S.G. 3A1.2(b) did not apply. At the time, 3A1.2(b) also created an explicit offense-specific link, requiring assaultative conduct creating "during the course of the offense or immediate flight therefrom", i.e., "proximate in time to the commission of the offense." I view the distinction between these two as whether the flight is assaultative conduct. That said, this is the weakest argument, becuase it could be argued that the amendment was intended to encompass situations that were not linked, or proximate in time, to the offense of conviction.
The counter-argument, though not explicitly made by the CA10, is that U.S.S.G. 1B1.3(a)(1) is not exclusive. U.S.S.G. 1.1B3(a)(4) permits Chapter Three adjustments to be determined on the basis of "any other information specified in the applicable guideline," and the commentary to this provision explicitly states that it is intended to include information related to the defendant's "state of mind." Thus, U.S.S.G. 3C1.2 calls for consideration of "other information" relating to a defendant's "state of mind": namely whether "the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." Moreover, this counter-argument is bolstered by the fact that nexus does not appear to be required for U.S.S.G. 3A1.2(c)(2), which no published opinion has construed (at least that I found).
Ultimately, although I agree with the CA5, there is valid room for dispute. This dispute may not matter all that much, because if nexus is required, a sentencing court can (and should, in my view) vary 2 levels up to take into account the defendant's behavior where nexus is lacking.
What does matter to practitioners, however, is that the Sentencing Commission's website be accurate. And it is not. The Commission provides materially different versions of U.S.S.G. 1B1.3(a)(1), depending on whether one is viewing the Guidelines in pdf form, or html form.
Here is the PDF version, as quoted above:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor,
or enterprise undertaken by the defendant in concert with others, whether or not
charged as a conspiracy), all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or responsibility for that offense;
In this version, the structure of the paragraphs makes clear that the last sentence, beginning "that occurred", modifies both (A) and (B). In contrast, the HTML version provides:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant; and
(B)in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in concert with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity, that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of attempting to avoid detection
or responsibility for that offense;
In the HTML version, the structure of the paragraphs erroneously suggests that the clause beginning "that occurred" modifies only (B). This inference is grounded in the location of the semi-colons and the last antecedent rule ("that" would modify "reasonably foreseeable acts and omissions").
The Sentencing Commission needs to change its coding.
Sunday, March 10, 2013
Split Widened: Is Use of a Fake Social Security Card for Employment Morally Turpitudinous?
Per Marin-Rodriguez v. Holder (7th Cir. Mar. 6, 2013)
This Seventh Circuit opinion widens one split, while continuing another.
The first, already extant split concerns whether immigration courts (IJs or the BIA) may consider material outside the record of conviction when determining whether a crime constitutes a crime of moral turpitude. This blog already discussed the split here. In brief, the CA7 and the Attorney General have concluded that, because the immigration context does not raise Sixth Amendment concerns, immigration courts should not be limited to the categorical and modified-categorical approaches to past convictions. (p. 6-7.) The CAs 3, 4, 8, and 11 have rejected this position. (Id. at n.3.) For the reasons discussed in my prior post, I am persuaded by the minority of the CA7 and AG, although the majority also has strong arguments (primarily based on a 1951 Supreme Court precedent holding that the words "moral turpitude" had a positive and fixed meaning). To say the least, this is an issue ripe for certiorari review.
But not in this case. This case did not even reach outside the modified categorical approach, which revealed that the alien had used a fake social security card for employment. The CA7 joins with the CAs 5, 6, and 8 in determining that such fraudulent actions necessarily involve moral turpitude, because the false social security card is used to deceive the employer, or anyone examining the employer's records. (Fraud is a prototypical example of moral turpitude.) The minority--only the CA 9--relies on an entirely different statute, 42 U.S.C. 408(e)), which grants amnesty for having previously used false social security cards to aliens granted citizenship. The CA9 believes that the exemption demonstrates that the use of a false social security card is only malum prohibitum, and not malum in se. I would conclude the opposite. The amnesty demonstrates that the use of a false social security card is malum in se, but to be forgiven when the alien is given a new shot at becoming a law-abiding citizen.
In all, a correct--and well-written--opinion by Judge Manion, but certainly some issues that may warrant certiorari review if a better vehicle presents itself.
This Seventh Circuit opinion widens one split, while continuing another.
The first, already extant split concerns whether immigration courts (IJs or the BIA) may consider material outside the record of conviction when determining whether a crime constitutes a crime of moral turpitude. This blog already discussed the split here. In brief, the CA7 and the Attorney General have concluded that, because the immigration context does not raise Sixth Amendment concerns, immigration courts should not be limited to the categorical and modified-categorical approaches to past convictions. (p. 6-7.) The CAs 3, 4, 8, and 11 have rejected this position. (Id. at n.3.) For the reasons discussed in my prior post, I am persuaded by the minority of the CA7 and AG, although the majority also has strong arguments (primarily based on a 1951 Supreme Court precedent holding that the words "moral turpitude" had a positive and fixed meaning). To say the least, this is an issue ripe for certiorari review.
But not in this case. This case did not even reach outside the modified categorical approach, which revealed that the alien had used a fake social security card for employment. The CA7 joins with the CAs 5, 6, and 8 in determining that such fraudulent actions necessarily involve moral turpitude, because the false social security card is used to deceive the employer, or anyone examining the employer's records. (Fraud is a prototypical example of moral turpitude.) The minority--only the CA 9--relies on an entirely different statute, 42 U.S.C. 408(e)), which grants amnesty for having previously used false social security cards to aliens granted citizenship. The CA9 believes that the exemption demonstrates that the use of a false social security card is only malum prohibitum, and not malum in se. I would conclude the opposite. The amnesty demonstrates that the use of a false social security card is malum in se, but to be forgiven when the alien is given a new shot at becoming a law-abiding citizen.
In all, a correct--and well-written--opinion by Judge Manion, but certainly some issues that may warrant certiorari review if a better vehicle presents itself.
Friday, March 8, 2013
Split Noted: When Does Restoration Civil Rights Discount a Conviction for the ACCA?
Per United States v. Swims (7th Cir. Feb. 28, 2013)
18 U.S.C. 922(g)(1) renders the interstate shipping, transporting, or receiving of a firearm a crime for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year. In turn, 18 U.S.C. 920(a)(2) excludes certain crimes from the statutory term "a crime punishable by imprisonment for a term exceeding one year," and further defines that term as:
The Seventh Circuit rejects this argument, reasoning that the letter has to include restoration of "the big three" civil rights--i.e., the right to vote, hold office, and serve on a jury--in order to trigger the second sentence of the statute. The Seventh Circuit notes, however, a circuit split over the "anti-mousetrapping" doctrine, which concerns the "unless" clause of the second sentence. (p.4)
The anti-mousetrapping doctrine says that any restoration of civil rights itself must notify a convict that he is still forbidden from possessing firearms for the "unless" clause to apply. Five circuits (the CAs 5, 7, 9, 11 & DC) follow this rule, while four (the CAs 4, 6, 8, & 10) hold that if the restoration is silent, but state law still would prohibit firearm ownership, the "unless" clause nonetheless applies.
I side with in the middle of this split. To recap only the relevant statutory language:
The circuit split at issue here is caused by an antecedent issue, on which all circuits and the Supreme Court agree: "'restoration of civil rights' does not" "connote[] a case-by-case determination." Caron v. United States, 524 U.S. 308, 313 (1998). Despite the uniformity, I disagree for multiple reasons.
First, the terms of the unless clause (the exception to the exception), referring to "such . . . restoration of civil rights . . . expressly ," suggest that the restoration must take place by an individualized, affirmative action, rather than by silent operation of a blanket law. To the extent relevant, legislative history confirms this suggestion. When the relevant language was originally passed in 1981, the Senate Committee report described its effect: "In the event that the official granting the pardon, restoration of rights or expungement of record does not desire it to restore the right to firearm ownership, this provision is rendered inapplicable where the order or pardon expressly provides that the person may not possess firearms." S. Rep. 97-476 at 18.
Second, the statutory term "restoration of civil rights" is ambiguous (e.g., as to what rights matter), so I would resort to noscitur a sociis. All of the other statutory actions with respect to a conviction--i.e., expungement, setting aside, or pardoning--require an individual determination. (Even routine expungements, such as for juvenile convictions, require the court to take an individual action with respect to one person's record, and can be prevented by an individualized showing of the need for continued collateral consequences.)
Third, requiring an individualized determination is likely the only way to harmonize the first and second sentences of the statute. Where a state restores certain civil rights by operation of law, such as Illinois did here, its law still treats the convict as a convict for all purposes, including the rights restored and the rights still denied. Thus, the first sentence (providing that state law governs whether a state conviction qualifies) would mandate that the convict still be treated as convict. In contrast, where a state restores civil rights by individual order, that order itself will determine for what purposes state law will treat the convict as a convict. Thus, even the first sentence would--as the second sentence actually does--require reference to the individual order granting a restoration of rights.
Fourth, the entire second sentence of the statute is an exception to the first, thus triggering the canon that provisos be narrowly construed. Requiring case-by-case determinations is certainly more narrow than crediting all operations of state law.
Finally, the overall purpose of the second sentence's exception appears to be the discounting of convictions where public officials have determined that individual circumstances (whether rehabilitation, or lack of original criminal intent) render unnecessary continued, generally-applicable deprivations of civil rights. Thus, if a state has determined that an individual convict does not pose a threat to the public such that he may have his rights restored, the criminal code provides no reason to overturn that determination and still count the conviction.
18 U.S.C. 922(g)(1) renders the interstate shipping, transporting, or receiving of a firearm a crime for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year. In turn, 18 U.S.C. 920(a)(2) excludes certain crimes from the statutory term "a crime punishable by imprisonment for a term exceeding one year," and further defines that term as:
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.In this case, upon serving his state sentence for aggravated robbery, Swims received a letter informing him "of the restoration of your right to hold offices . . . . [and] the right to restoration of licenses granted to you." The letter did not mention Illinois's standing prohibition on gun ownership by felons. Thus, Swims contended that this letter meant that he "has had civil rights restored," such that the aggravated robbery adjudication did not count as a conviction.
The Seventh Circuit rejects this argument, reasoning that the letter has to include restoration of "the big three" civil rights--i.e., the right to vote, hold office, and serve on a jury--in order to trigger the second sentence of the statute. The Seventh Circuit notes, however, a circuit split over the "anti-mousetrapping" doctrine, which concerns the "unless" clause of the second sentence. (p.4)
The anti-mousetrapping doctrine says that any restoration of civil rights itself must notify a convict that he is still forbidden from possessing firearms for the "unless" clause to apply. Five circuits (the CAs 5, 7, 9, 11 & DC) follow this rule, while four (the CAs 4, 6, 8, & 10) hold that if the restoration is silent, but state law still would prohibit firearm ownership, the "unless" clause nonetheless applies.
I side with in the middle of this split. To recap only the relevant statutory language:
Any conviction for which a person has had civil rights restored shall not be considered a conviction unless such restoration of civil rights expressly provides . . . [the] firearms [restriction].The plain text of the "unless" clause, i.e., the words "such" and "expressly" require reference to the document restoring civil rights. If--as here--a convict receives a letter notifying him of the restoration of civil rights, and that letter does not also notify him of a restriction on gun ownership, the convict could reasonably believe that the clause does not apply to his conviction. To the extent there is any ambiguity, both the rule of lenity and the doctrine of fair notice should require the same result. If, however, a convict does not receive any notification of the restoration of rights, but the restoration happens automatically--and silently--by operation of state law, the same "document" restoring civil rights, i.e., the code book, expressly provides the firearms restriction.
The circuit split at issue here is caused by an antecedent issue, on which all circuits and the Supreme Court agree: "'restoration of civil rights' does not" "connote[] a case-by-case determination." Caron v. United States, 524 U.S. 308, 313 (1998). Despite the uniformity, I disagree for multiple reasons.
First, the terms of the unless clause (the exception to the exception), referring to "such . . . restoration of civil rights . . . expressly ," suggest that the restoration must take place by an individualized, affirmative action, rather than by silent operation of a blanket law. To the extent relevant, legislative history confirms this suggestion. When the relevant language was originally passed in 1981, the Senate Committee report described its effect: "In the event that the official granting the pardon, restoration of rights or expungement of record does not desire it to restore the right to firearm ownership, this provision is rendered inapplicable where the order or pardon expressly provides that the person may not possess firearms." S. Rep. 97-476 at 18.
Second, the statutory term "restoration of civil rights" is ambiguous (e.g., as to what rights matter), so I would resort to noscitur a sociis. All of the other statutory actions with respect to a conviction--i.e., expungement, setting aside, or pardoning--require an individual determination. (Even routine expungements, such as for juvenile convictions, require the court to take an individual action with respect to one person's record, and can be prevented by an individualized showing of the need for continued collateral consequences.)
Third, requiring an individualized determination is likely the only way to harmonize the first and second sentences of the statute. Where a state restores certain civil rights by operation of law, such as Illinois did here, its law still treats the convict as a convict for all purposes, including the rights restored and the rights still denied. Thus, the first sentence (providing that state law governs whether a state conviction qualifies) would mandate that the convict still be treated as convict. In contrast, where a state restores civil rights by individual order, that order itself will determine for what purposes state law will treat the convict as a convict. Thus, even the first sentence would--as the second sentence actually does--require reference to the individual order granting a restoration of rights.
Fourth, the entire second sentence of the statute is an exception to the first, thus triggering the canon that provisos be narrowly construed. Requiring case-by-case determinations is certainly more narrow than crediting all operations of state law.
Finally, the overall purpose of the second sentence's exception appears to be the discounting of convictions where public officials have determined that individual circumstances (whether rehabilitation, or lack of original criminal intent) render unnecessary continued, generally-applicable deprivations of civil rights. Thus, if a state has determined that an individual convict does not pose a threat to the public such that he may have his rights restored, the criminal code provides no reason to overturn that determination and still count the conviction.
Monday, February 25, 2013
Split Noted: Must An IJ Provide Notice Of The Need For Corroboration?
Per Pulatov v. Holder (6th Cir. Feb. 25, 2013)
In 2005, Congress passed the REAL ID Act. The effect of the statute was largely to abrogate several lines of outlier, pro-immigrant precedent from a certain "liberal" circuit. One of the abrogated lines of precedent held that an Immigration Judge could not require corroboration from a credible alien.
In lieu of the no-corroboration rule, the REAL ID Act provided, in a clause now codified as 8 U.S.C. 1158(b)(1)(B)(ii):
The CA7 concludes that the statute already provides notice of the need for corroboration, because testimony alone only "may be" sufficient, and administrative efficiency does not require a second opportunity to obtain it.
In contrast, the CAs 3 and 9 hold that the statutory language requires opportunity to respond. Specifically, the Ninth Circuit relies on the tense of "should provide" and "must be provided" to conclude that the "language focuses on conduct that follows the IJ's determination, not precedes it[;] the statute's future directed language means that the applicant must be informed of the corroboration that is required." (Third emphasis added).
I come down in the middle of this split. Specifically, I agree with the Seventh Circuit that the statute provides notice of the general need for corroboration. And I disagree with the Ninth Circuit that the statute uses future directed language--all of the verbs highlighted are in the present tense. Thus, I don't think additional advance notice of the need for corroboration is required.
But once an IJ concludes that corroboration is necessary, the statute does mandate--as the CAs 3 and 9 conclude, that the alien be provided an opportunity to respond. Such a response could take two forms:
In 2005, Congress passed the REAL ID Act. The effect of the statute was largely to abrogate several lines of outlier, pro-immigrant precedent from a certain "liberal" circuit. One of the abrogated lines of precedent held that an Immigration Judge could not require corroboration from a credible alien.
In lieu of the no-corroboration rule, the REAL ID Act provided, in a clause now codified as 8 U.S.C. 1158(b)(1)(B)(ii):
The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.(Emphases added). In this unpublished disposition, the CA6 notes, but does not resolve a split between the CA3 and CA9, on the one hand, and the CA7, over whether an IJ must provide notice and an opportunity to respond after reaching the determination that corroboration is necessary. (p. 7 n.5).
The CA7 concludes that the statute already provides notice of the need for corroboration, because testimony alone only "may be" sufficient, and administrative efficiency does not require a second opportunity to obtain it.
In contrast, the CAs 3 and 9 hold that the statutory language requires opportunity to respond. Specifically, the Ninth Circuit relies on the tense of "should provide" and "must be provided" to conclude that the "language focuses on conduct that follows the IJ's determination, not precedes it[;] the statute's future directed language means that the applicant must be informed of the corroboration that is required." (Third emphasis added).
I come down in the middle of this split. Specifically, I agree with the Seventh Circuit that the statute provides notice of the general need for corroboration. And I disagree with the Ninth Circuit that the statute uses future directed language--all of the verbs highlighted are in the present tense. Thus, I don't think additional advance notice of the need for corroboration is required.
But once an IJ concludes that corroboration is necessary, the statute does mandate--as the CAs 3 and 9 conclude, that the alien be provided an opportunity to respond. Such a response could take two forms:
- An explanation that the alien had previously sought the requested corroboration, and was unable to obtain it, in which case the IJ would have to evaluate the explanation and determine whether the requested evidence is reasonable obtainable.
- An explanation that the alien had not previously sought the requested corroboration, and believes he would be able to provide it, in which case the IJ would have to determine whether the alien acted reasonably.
- If the applicant reasonably believed the requested corroboration related to a minor point in his story or would be cumulative, the applicant should be afforded a continuance to obtain the requested evidence.
- If the applicant acted unreasonably in failing to seek the requested corroboration despite the statutory notice, because it related to a central and uncorroborated point in his story, then the IJ could deny asylum because the alien may simply be seeking to delay the inevitable.
Monday, January 28, 2013
Split Noted: Is Control Necessary for USSG 3B1.1?
Per United States v. Samolja (7th Cir. Jan. 25, 2013)
I rarely blog about unpublished cases, but two recent ones have caught my eye. For other reasons, I cannot blog about one, out of the Fourth Circuit.
Here, however, the Seventh Circuit notes in passing (p.5 n.1) an intra-circuit split regarding whether a defendant must control others in order to be eligible for an enhancement under U.S.S.G. 3B1.1. Researching the split revealed that most circuits do require some degree of control, whereas the the CA10, and certain cases of the CA7, do not.
The majority is right. Here is the relevant statutory text and commentary:
First,Organizers are equivalent to leaders, who must exercise control. Second, control is inherent to management and supervision, which are deemed to be lesser included forms of organization. Third, most tellingly, the commentary requires some "degree of control" for any form of organizing, leading, managing, and supervising. Finally, if there is any degree of ambiguity remaining after reading the text and the canons, the rule of lenity would also favor a control requirement (circuits seem to uniformly apply lenity to the guidelines, though there is some question whether this application is appropriate).
I rarely blog about unpublished cases, but two recent ones have caught my eye. For other reasons, I cannot blog about one, out of the Fourth Circuit.
Here, however, the Seventh Circuit notes in passing (p.5 n.1) an intra-circuit split regarding whether a defendant must control others in order to be eligible for an enhancement under U.S.S.G. 3B1.1. Researching the split revealed that most circuits do require some degree of control, whereas the the CA10, and certain cases of the CA7, do not.
The majority is right. Here is the relevant statutory text and commentary:
__(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
___(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
4. In distinguishing a leadership and organizational role from one of mere management or supervision, titles such as "kingpin" or "boss" are not controlling. Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. This adjustment does not apply to a defendant who merely suggests committing the offense.By definition, managers, supervisors, and leaders all exercise control. While the definition of organizer could be broader, in theory, the statutory scheme confirms that it is not.
First,Organizers are equivalent to leaders, who must exercise control. Second, control is inherent to management and supervision, which are deemed to be lesser included forms of organization. Third, most tellingly, the commentary requires some "degree of control" for any form of organizing, leading, managing, and supervising. Finally, if there is any degree of ambiguity remaining after reading the text and the canons, the rule of lenity would also favor a control requirement (circuits seem to uniformly apply lenity to the guidelines, though there is some question whether this application is appropriate).
Wednesday, January 16, 2013
Split Noted: Is Cumulative Error Doctrine Clearly Established For AEDPA? Plus AEDPA Commentary
Per Lott v. Trammell (10th Cir. Jan. 24)
I will not claim to have read all of this 100+ page effort. Given the length and the subject--AEDPA--I assume without basis that it capital case.
Ah, AEDPA. The other 1996 statute that certain liberal jurists love to hate. Nowadays, to grant habeas relief to a state prisoner, a federal court must find that the state court's decision was either (1) contrary to, or (2) an unreasonable application of, (3) clearly established Federal law.
The split noted here concerns the third element; whether the cumulative error doctrine is clearly established. Clearly established Federal law is limited to the holdings of SCOTUS. In finding cumulative error analysis clearly established, the CA9 cites three different SCOTUS cases. On the opposite side of the split is, bizarrely, the CA6. I say bizarrely because the CA6 has actually been spanked more times on AEDPA recently than the CA9.
Even more bizarrely, at least for me, I believe the CA9 is right. The holding of Chambers v. Mississippi, 410 U.S. 284 (1973), is on point. Chambers's "claim, the substance of which we accept in this opinion, rests on the cumulative effect of those rulings in frustrating his efforts to develop an exculpatory defense." Id. at 290 n.3.
But I actually want to discuss AEDPA's second element in light of some recent civil tort work I've been doing. For a state court opinion to be "an unreasonable application of" Supreme Court law, it must be such that no reasonble jurist could possibly agree. This standard is functionally the same as the "no reasonable litigant" standard established for objective baselessness by PRE, 506 U.S. 49, 55-61 (1993).
But there is one difficulty. Any number of cases could be cited for the proposition that, if you get one judge (even in dissent) to agree with your position, that position cannot be objectively baseless as a matter of law. Thus, for purposes of Noerr immunity, courts are willing to assume that all jurists act reasonably.
In contrast, any number of cases could be cited where habeas was granted based on a state appellate court's unreasonable application of Supreme Court law. No longer is one lone voice enough to demonstrate reason. Now federal courts are willing to overrule even a majority of their state brethren.
Obviously, this disparity can be explained by having a thumb on the scale of constitutional rights. The any judge standard of PRE's progeny protects the First Amendment right to petition, while lack of any similar standard protects convicts right to due process.
But I think the more likely explanation is outcome-oriented jurisprudence. In a private dispute, there generally are not any larger principles or constitutional visions at stake. Whereas in habeas, the entire focus is on the larger principles of criminal justice. Thus, even though the standards call for the same amout of deference, certain jurists are simply less willing to defer in the latter situation than the former.
I will not claim to have read all of this 100+ page effort. Given the length and the subject--AEDPA--I assume without basis that it capital case.
Ah, AEDPA. The other 1996 statute that certain liberal jurists love to hate. Nowadays, to grant habeas relief to a state prisoner, a federal court must find that the state court's decision was either (1) contrary to, or (2) an unreasonable application of, (3) clearly established Federal law.
The split noted here concerns the third element; whether the cumulative error doctrine is clearly established. Clearly established Federal law is limited to the holdings of SCOTUS. In finding cumulative error analysis clearly established, the CA9 cites three different SCOTUS cases. On the opposite side of the split is, bizarrely, the CA6. I say bizarrely because the CA6 has actually been spanked more times on AEDPA recently than the CA9.
Even more bizarrely, at least for me, I believe the CA9 is right. The holding of Chambers v. Mississippi, 410 U.S. 284 (1973), is on point. Chambers's "claim, the substance of which we accept in this opinion, rests on the cumulative effect of those rulings in frustrating his efforts to develop an exculpatory defense." Id. at 290 n.3.
But I actually want to discuss AEDPA's second element in light of some recent civil tort work I've been doing. For a state court opinion to be "an unreasonable application of" Supreme Court law, it must be such that no reasonble jurist could possibly agree. This standard is functionally the same as the "no reasonable litigant" standard established for objective baselessness by PRE, 506 U.S. 49, 55-61 (1993).
But there is one difficulty. Any number of cases could be cited for the proposition that, if you get one judge (even in dissent) to agree with your position, that position cannot be objectively baseless as a matter of law. Thus, for purposes of Noerr immunity, courts are willing to assume that all jurists act reasonably.
In contrast, any number of cases could be cited where habeas was granted based on a state appellate court's unreasonable application of Supreme Court law. No longer is one lone voice enough to demonstrate reason. Now federal courts are willing to overrule even a majority of their state brethren.
Obviously, this disparity can be explained by having a thumb on the scale of constitutional rights. The any judge standard of PRE's progeny protects the First Amendment right to petition, while lack of any similar standard protects convicts right to due process.
But I think the more likely explanation is outcome-oriented jurisprudence. In a private dispute, there generally are not any larger principles or constitutional visions at stake. Whereas in habeas, the entire focus is on the larger principles of criminal justice. Thus, even though the standards call for the same amout of deference, certain jurists are simply less willing to defer in the latter situation than the former.
Saturday, January 12, 2013
Split Noted: Does Fed. R. Crim. P. 32(i)(1)(A) require an on-the record inquiry?
Per United States v. DeLeon (1st Cir. Jan. 11, 2013)
Federal Rule of Criminal Procedure 32(i)(1)(A) provides: "At sentencing, the court must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report." (Emphasis added)
The split noted (p. 13-14, n.7) in this CA1 opinion is whether the verification required by Rule 32(i)(1)(A) need be explicit and on the record. The CA1,3,5, and 6 all hold that this specific inquiry need not be explicit, so long as it is clear from the record that the defendant and the attorney have discussed the report. The CA7 requires an explicit inquiry.
I agree with the CA7. After all, the definition of verify is to "prove the truth of, as by evidence or testimony." (Emphasis added.)
That said, I dont think the split matters at all. First, if--as per majority school--it is apparent from the record that the defendant and the attorney have discussed the report, the failure to perform an explicit inquiry is necessarily harmless and should be disregarded. Fed. R. Crim. P. 52(a). Second, a district court could fail to make an explicit inquiry only if there is no objection. Thus, appellate review of this issue will always be for plain error under Fed. R. Crim. P. 52(b).
Nonetheless, I think the better rule would be to instruct district courts that it is error (albeit virtually irreversible error) not to conduct an on-the-record inquiry into whether the defendant and attorney have reviewed and discussed the PSR. Such an instruction would allow district courts to improve their sentencing checklists, and cohere more closely with the terms of the rule.
Federal Rule of Criminal Procedure 32(i)(1)(A) provides: "At sentencing, the court must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report." (Emphasis added)
The split noted (p. 13-14, n.7) in this CA1 opinion is whether the verification required by Rule 32(i)(1)(A) need be explicit and on the record. The CA1,3,5, and 6 all hold that this specific inquiry need not be explicit, so long as it is clear from the record that the defendant and the attorney have discussed the report. The CA7 requires an explicit inquiry.
I agree with the CA7. After all, the definition of verify is to "prove the truth of, as by evidence or testimony." (Emphasis added.)
That said, I dont think the split matters at all. First, if--as per majority school--it is apparent from the record that the defendant and the attorney have discussed the report, the failure to perform an explicit inquiry is necessarily harmless and should be disregarded. Fed. R. Crim. P. 52(a). Second, a district court could fail to make an explicit inquiry only if there is no objection. Thus, appellate review of this issue will always be for plain error under Fed. R. Crim. P. 52(b).
Nonetheless, I think the better rule would be to instruct district courts that it is error (albeit virtually irreversible error) not to conduct an on-the-record inquiry into whether the defendant and attorney have reviewed and discussed the PSR. Such an instruction would allow district courts to improve their sentencing checklists, and cohere more closely with the terms of the rule.
Wednesday, January 9, 2013
Split Noted: Individual Public Employer Liability Under The FMLA
Per Diaz v. Mich. Dep't of Corr. (6th Cir. Jan. 7, 2013)
The Family Medical Leave Act (FMLA) conains both family-care and self-care provisions authorizing suits against employers--including public agencies--for monetary damages and injunctive relief. The Supreme Court has held that money damages are obtainable in family-care suits against public employers, because those provisions were passed pursuant to Congress's authority to enforce the Fourteenth Amendment and therefore abrogate sovereign immunity. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 725 (2003). Similar money damages suits based on the self-care provisions, however, are not permitted because the self-care provisions do not enforce the Fourteenth Amendment. Coleman v. Court of Appeals of Md., 132 S. Ct. 1327, 1332 (2012).
Plaintiffs in this case attempt to work around Coleman, bringing 1983 "and laws" suits to enforce the self-care provisions. And they are partially successful.
In a well-reasoned opinion, the CA6 holds that the damages claims fail for multiple reasons (more on that anon). Nonetheless, the court reverses the dismissal of the equitable claim for reinstatement by analogy to Ex Parte Young.
Among the reasons for dismissal of the damages claims were that the claims were pleaded against individual, rather than corporate, public employers. The CA6 notes an entrenched split between the CA6 and CA11, on one hand, and CA8 and CA5 on the other, concerning whether individual public employer liability is permissible. (p.8.) Having reviewed the relevant cited cases, I applaud both the CA6 and the CA5 for their indepth analysis of the issue. IMO, The CA5 has the best of the argument.
Here is the relevant statutory language defining employer:
The recursive nature of the text, i.e., the use of the term employer in the definition of employer, shows that public supervisory employees may be liable. Witness the substitution of 4(A)(iii) for employer in 4(A)(ii)(I):
First, the CA6 relies on statutory structure, noting the separation between distinctly enumerated provisions (ii) and (iii). This argument fails because the statute indicates that romanettes i-iv are all linked by use of the serial semi-colon: "(i) . . .; (ii) . . .; (iii) . . . ; and (iv)." Moreover, it also overlooks the recursion of the term employer.
Second, the CA6 relies on what it discerns to be superfluity. Specifically, it submits that recursion analysis, when combined with the difference between "means" in (i) and includes in (iii) renders the definition of public agency superfluous because (iii) is already included in (i). Not so. By including "public agency" in (iii), the statute expands the meaning of employer solely with respect to public agencies and relieves a plaintiff of the need to prove that the agency "e,ploys 50 or more people . . . . ."
In all, good efforts by both courts, but I agree with the CA5. Two parting notes. One argument in favor of the CA6 is the definition of public agency fails to require that the agency be, well, public. This omission is likely what prompted the superfluity point. Nonetheless, I think this omission can be remedied by the very term being defined.
Second, in light of the immunity discussion above, you might wonder why the strict construction canon does not come into play. Once again, the CA5 has a ready answer. As a general rule the Eleventh Amendment does not bar suits against officers in their individual capacities. Hudson v. City of New Orleans, 174 F.3d 677, 687 n. 7 (5th Cir. 1999).
The Family Medical Leave Act (FMLA) conains both family-care and self-care provisions authorizing suits against employers--including public agencies--for monetary damages and injunctive relief. The Supreme Court has held that money damages are obtainable in family-care suits against public employers, because those provisions were passed pursuant to Congress's authority to enforce the Fourteenth Amendment and therefore abrogate sovereign immunity. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 725 (2003). Similar money damages suits based on the self-care provisions, however, are not permitted because the self-care provisions do not enforce the Fourteenth Amendment. Coleman v. Court of Appeals of Md., 132 S. Ct. 1327, 1332 (2012).
Plaintiffs in this case attempt to work around Coleman, bringing 1983 "and laws" suits to enforce the self-care provisions. And they are partially successful.
In a well-reasoned opinion, the CA6 holds that the damages claims fail for multiple reasons (more on that anon). Nonetheless, the court reverses the dismissal of the equitable claim for reinstatement by analogy to Ex Parte Young.
Among the reasons for dismissal of the damages claims were that the claims were pleaded against individual, rather than corporate, public employers. The CA6 notes an entrenched split between the CA6 and CA11, on one hand, and CA8 and CA5 on the other, concerning whether individual public employer liability is permissible. (p.8.) Having reviewed the relevant cited cases, I applaud both the CA6 and the CA5 for their indepth analysis of the issue. IMO, The CA5 has the best of the argument.
Here is the relevant statutory language defining employer:
(4) Employer
(A) In general
The term “employer”—
(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;(ii) includes—
29 U.S.C. 2611 (emphases added). Given this text, it is clear that 4(A)(ii)(I) creates individual liability for supervisory employees, while 4(A)(iii) creates public employer liability.(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and(II) any successor in interest of an employer;(iii) includes any “public agency”, as defined in section 203 (x) of this title; and(iv) includes the Government Accountability Office and the Library of Congress.(B) Public agency
For purposes of subparagraph (A)(iii), a public agency shall be considered to be a person engaged in commerce or in an industry or activity affecting commerce.
The recursive nature of the text, i.e., the use of the term employer in the definition of employer, shows that public supervisory employees may be liable. Witness the substitution of 4(A)(iii) for employer in 4(A)(ii)(I):
(I) any person who acts, directly or indirectly, in the interest of a[] public agency to any of the employees of such public agency; andFurther, as the CA5 convincingly demonstrates, the CA6's two arguments against individual liability ultimately fail. (A third argument is omitted here for space.)
First, the CA6 relies on statutory structure, noting the separation between distinctly enumerated provisions (ii) and (iii). This argument fails because the statute indicates that romanettes i-iv are all linked by use of the serial semi-colon: "(i) . . .; (ii) . . .; (iii) . . . ; and (iv)." Moreover, it also overlooks the recursion of the term employer.
Second, the CA6 relies on what it discerns to be superfluity. Specifically, it submits that recursion analysis, when combined with the difference between "means" in (i) and includes in (iii) renders the definition of public agency superfluous because (iii) is already included in (i). Not so. By including "public agency" in (iii), the statute expands the meaning of employer solely with respect to public agencies and relieves a plaintiff of the need to prove that the agency "e,ploys 50 or more people . . . . ."
In all, good efforts by both courts, but I agree with the CA5. Two parting notes. One argument in favor of the CA6 is the definition of public agency fails to require that the agency be, well, public. This omission is likely what prompted the superfluity point. Nonetheless, I think this omission can be remedied by the very term being defined.
Second, in light of the immunity discussion above, you might wonder why the strict construction canon does not come into play. Once again, the CA5 has a ready answer. As a general rule the Eleventh Amendment does not bar suits against officers in their individual capacities. Hudson v. City of New Orleans, 174 F.3d 677, 687 n. 7 (5th Cir. 1999).
Split Noted: Is U.S.S.G. 3E1.1(b) Mandatory or Permissive?
Per United States v. Castro (3d Cir. Jan. 8, 2013)
U.S.S.G. 3E1.1 reduces the offense level of a criminal who accepts responsibility for the crime. It has two parts. First, a two-level adjustment is appropriate "[i]f the defendant clearly demonstrates acceptance of responsibility." Id. 3E1.1(a). Second, an additional one-level decrease is called for if (1) the first section is satisfied, (2) the offense level prior to the first section is >15, and (3) the government formally requests. In full, the second part provides:
The Third Circuit notes a split between the CA5 and the CA7 concerning whether this second provision remains discretionary with the court, or is mandatory upon satisfaction of the prerequisites, respectively. (p. 29.) Reviewing the cited opinions, the split appears to be lopsided in favor of discretion, in large part based upon one of the application notes:
Once again, I find myself in the minority, viewing the guideline as mandatory. The plain text of the Guideline itself is in the imperative, follows the familiar "if . . . then" framework, and does not admit of discretion. While the comment does sound a note of discretion with the use of may, it also notes that the Government, not the Court, is in the best position to exercise the discretion. Further, guidelines trump comments in cases of inconsistency. United States v. Stinson, 508 U.S. 36, 38 (1993).
Finally, a mandatory reading does not eliminate judicial discretion for two reasons. First, the judge determines whether section (a) applies, and thus whether one of section (b)'s prerequisites is satisfied. Second, if the judge still disagrees with the adjustment, he can simply impose a variant sentence under the 3553(a) factors and tie the variance to what the offender's guidelines range would have been without the additional one-level downward adjustment.
UPDATE: additional coverage from
Split Circuits: Third Circuit Declines to Weigh in on Split Re Whether Adjustment under Guideline 3E1.1(b) Is Mandatory under Certain Circumstances
U.S.S.G. 3E1.1 reduces the offense level of a criminal who accepts responsibility for the crime. It has two parts. First, a two-level adjustment is appropriate "[i]f the defendant clearly demonstrates acceptance of responsibility." Id. 3E1.1(a). Second, an additional one-level decrease is called for if (1) the first section is satisfied, (2) the offense level prior to the first section is >15, and (3) the government formally requests. In full, the second part provides:
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional levelId. 3E1.1(b) (emphases altered).
The Third Circuit notes a split between the CA5 and the CA7 concerning whether this second provision remains discretionary with the court, or is mandatory upon satisfaction of the prerequisites, respectively. (p. 29.) Reviewing the cited opinions, the split appears to be lopsided in favor of discretion, in large part based upon one of the application notes:
Because the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.Id. cmt. n.6 (emphasis added).
Once again, I find myself in the minority, viewing the guideline as mandatory. The plain text of the Guideline itself is in the imperative, follows the familiar "if . . . then" framework, and does not admit of discretion. While the comment does sound a note of discretion with the use of may, it also notes that the Government, not the Court, is in the best position to exercise the discretion. Further, guidelines trump comments in cases of inconsistency. United States v. Stinson, 508 U.S. 36, 38 (1993).
Finally, a mandatory reading does not eliminate judicial discretion for two reasons. First, the judge determines whether section (a) applies, and thus whether one of section (b)'s prerequisites is satisfied. Second, if the judge still disagrees with the adjustment, he can simply impose a variant sentence under the 3553(a) factors and tie the variance to what the offender's guidelines range would have been without the additional one-level downward adjustment.
UPDATE: additional coverage from
Split Circuits: Third Circuit Declines to Weigh in on Split Re Whether Adjustment under Guideline 3E1.1(b) Is Mandatory under Certain Circumstances
Sunday, January 6, 2013
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:
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:
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.
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:
- a fundamental error in the prior proceedings
- reasonableness in not having acted earlier (i.e., though habeas)
- collateral consequences from the prior proceedings (standing)
- interests of justice require granting the writ (no alternative remedy)
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.
Tuesday, October 6, 2009
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.
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.
Tuesday, April 22, 2008
Splits Noted: Issues concerning the Piracy of Encrypted Satellite Television Signals
- Does 47 U.S.C. § 605(e)(4) Apply to end-users of Piracy Devices?
- Does a District Court Have Discretion Not To Award Damages For Piracy of an Encrypted Satellite Signal Under the Wiretap Act?
Per DIRECTV, Inc. v. Rawlins, 2008 WL 1777856, *7-*10 (4th Cir. Apr. 21, 2008)
With the coverage of this case, this blog has now covered a case from every circuit court capable of creating or noting a circuit split. It has also had visitors from every inhabited continent, and over 1,300 unique visitors. The most visitors continue to come from the U.S. Courts. I want to thank again those who have helped me start up, particularly Appellate Law & Practice, California Blog of Appeal, Decision of the Day, Obsidian Wings, Sentencing Law & Policy, and Southern Appeal. Please visit those blogs (links on the side) to help me thank them.
DIRECTV has been vigilant in pursuing actions against those who pirate its satellite television signal, instituting legal action against more than 25,000 defendants (see here). It commenced the instant action against defendant Rawlins after discovering evidence that he had purchased five devices enabling Rawlins to watch DIRECTV programming without paying for a subscription. DIRECTV alleged violations of the Cable Act and the Wiretap Act. After Rawlins failed to appear, DIRECTV moved for default judgment including a permanent injunction, statutory damages, attorneys’ fees, and costs. The district court granted summary judgment, entered an injunction, awarded DIRECTV costs and fees, but denied statutory damages under either Act. DIRECTV only appealed the denial of damages under the Wiretap Act.
Nonetheless, Judge Duncan considers the history and provisions of both acts as they apply to this case. The Cable Act proscribes the unauthorized reception of an encrypted satellite signal by end users, 47 U.S.C. § 605(a), and the manufacture, assembly, modification, importation, exportation, sale, or distribution of piracy devices or equipment, 47 U.S.C. § 605(e)(4). The former provision is punishable by statutory damages of not less than $1,000 and not more than $10,000, whereas the latter provision is punishable by statutory damages of not less than $10,000 and not more than $100,000. 47 U.S.C. § 605(e)(3)(C)(i)(II). Any award of damages is subject to the discretion of the district court.
The panel, unanimous on this point, notes that the circuits have split on the question of whether § 605(e)(4) may be applied to end-users (CA 4,5) or is limited to upstream manufacturers (CA 9, several district courts). In this case, the district court denied summary judgment to DIRECTV on its claim under § 605(e)(4), finding that that section was limited to upstream manufacturers. Even though the trial judge did not mention the contrary Fourth Circuit precedent on this issue, the panel does not address it because DIRECTV did not appeal the failure to award damages under the Cable Act.
Pirating a satellite signal also violates the Wiretap Act, which forbids the interception of any wire, oral, or other electronic communication. 18 U.S.C. § 2511(1)(a). Like the Cable Act, the Wiretap Act provides a civil remedy to those harmed by violations of its provisions. 18 U.S.C. § 2520. The statute provides for mandatory damages for the piracy of non-encrypted satellite communications in an amount ranging from $50-$1000. 18 U.S.C. § 2520(c)(1). For the theft of encrypted satellite communications, the statute provides for discretionary statutory damages in amount of $10,000 or $100 per day for each day of violation, whichever is greater. 18 U.S.C. § 2520(c)(2).
As this case concerns the piracy of DIRECTV’s encrypted signal, the latter provision applies. Judge Duncan notes that, despite the statute’s permissive language (“may”), the circuits have split over whether the award of damages under § 2520(c)(2) is discretionary. The CAs 4,6,8,11 all hold that it is discretionary, whereas the CA 7 requires a court to award damages.
Having thus concluded that the decision to award damages under either act lies within a district court’s discretion, the panel concludes the trial judge in this case abused his discretion by considering legally irrelevant factors. It therefore remands to the district court to consider whether damages under the Wiretap Act would be appropriate in light of the relevant concerns.
Split Noted: Can Events After the Filing of a Class Action Suit Affect Its Removal?
Per Springman v. AIG Marketing, Inc., 2008 WL 1722153, *3 (7th Cir. Apr. 15, 2008)
In July 2003, Plaintiff Springman filed a class action suit in an Illinois state court against AIG Claim Services, Inc, alleging fraudulent claims processing. AIG Claim Services responded to an interrogatory in December 2003 by stating that it had not handled Sprigman’s claims. Almost a year later, Springman finally asked who handled his claim and was informed that the processor was AIG Marketing, Inc. Finally, Springman amended his complaint to aid AIG Marketing and drop AIG Claim Services almost three years after discovering that AIG Marketing was responsible for the allegedly fraudulent claims processing.
In between the suits initial filing and the amended complaint, however, Congress passed the Class Action Fairness Act, which allows removal of some class actions to federal court despite the lack of complete diversity. This act applies to any suit commenced on or after the Act’s effective date. The question is whether the substitution of the parties constitutes a ‘commencement’ of a suit against AIG Marketing within the meaning of the CAFA.
Judge Posner, on behalf of a unanimous panel, notes that the circuits are split on this issue. The majority (the CAs 5,6,7,8,10) hold that actions after the filing of a suit can affect removal, whereas the CA 9 only looks to the suit as initially filed. The majority school does apply the ‘relation-back’ doctrine to determine if the substitution of parties (or other changes) so relates back to the initial suit as not to commence a new suit. That doctrine does not apply here because of Plaintiff Springman’s inexplicable delay in amending his complaint. Therefore, the substitution of the parties commenced a new suit, which can be removed under the CAFA.
In July 2003, Plaintiff Springman filed a class action suit in an Illinois state court against AIG Claim Services, Inc, alleging fraudulent claims processing. AIG Claim Services responded to an interrogatory in December 2003 by stating that it had not handled Sprigman’s claims. Almost a year later, Springman finally asked who handled his claim and was informed that the processor was AIG Marketing, Inc. Finally, Springman amended his complaint to aid AIG Marketing and drop AIG Claim Services almost three years after discovering that AIG Marketing was responsible for the allegedly fraudulent claims processing.
In between the suits initial filing and the amended complaint, however, Congress passed the Class Action Fairness Act, which allows removal of some class actions to federal court despite the lack of complete diversity. This act applies to any suit commenced on or after the Act’s effective date. The question is whether the substitution of the parties constitutes a ‘commencement’ of a suit against AIG Marketing within the meaning of the CAFA.
Judge Posner, on behalf of a unanimous panel, notes that the circuits are split on this issue. The majority (the CAs 5,6,7,8,10) hold that actions after the filing of a suit can affect removal, whereas the CA 9 only looks to the suit as initially filed. The majority school does apply the ‘relation-back’ doctrine to determine if the substitution of parties (or other changes) so relates back to the initial suit as not to commence a new suit. That doctrine does not apply here because of Plaintiff Springman’s inexplicable delay in amending his complaint. Therefore, the substitution of the parties commenced a new suit, which can be removed under the CAFA.
Monday, April 21, 2008
Split Noted: What Principles Should Limit the Boundaries of Public Honest Services Fraud?
Per United States v. Sorich, 2008 WL 1723670, *6-*9 (7th Cir. Apr. 15, 2008)
The facts of this case, which arises from the city of Chicago’s perennially troubled civil-service hiring practices, are irrelevant to the split at issue. The mail fraud statute criminalizes the use of the mail in furtherance of a scheme or artifice to defraud another of various interests, including, in relevant part, “of the intangible right of honest services.” 18 U.S.C. § 1346. This statute, however, does not limit the range of possible meanings of honest services, raising constitutional vagueness concerns.
No court has invalidated the statute for want of definition. Instead, the circuits have recognized the problem and offered their own limiting understandings to apply in public-fraud cases. The CAs 3,5 require a violation of state law. The CA 1 requires more than a mere violation of state ethics law. The CA 7 has required ‘private gain’ in order to find an instance of honest-services fraud. It continues to apply this understanding in the present case, though recognizing that the CA 10 has expressed a legitimate disagreement. Several additional splits have emerged in the private honest-services fraud context. See generally 172 A.L.R. Fed. 109.
The facts of this case, which arises from the city of Chicago’s perennially troubled civil-service hiring practices, are irrelevant to the split at issue. The mail fraud statute criminalizes the use of the mail in furtherance of a scheme or artifice to defraud another of various interests, including, in relevant part, “of the intangible right of honest services.” 18 U.S.C. § 1346. This statute, however, does not limit the range of possible meanings of honest services, raising constitutional vagueness concerns.
No court has invalidated the statute for want of definition. Instead, the circuits have recognized the problem and offered their own limiting understandings to apply in public-fraud cases. The CAs 3,5 require a violation of state law. The CA 1 requires more than a mere violation of state ethics law. The CA 7 has required ‘private gain’ in order to find an instance of honest-services fraud. It continues to apply this understanding in the present case, though recognizing that the CA 10 has expressed a legitimate disagreement. Several additional splits have emerged in the private honest-services fraud context. See generally 172 A.L.R. Fed. 109.
Split Noted: Is Mandatory Restitution Criminal or Civil in Nature?
Per United States v. Bonner, 2008 WL 1701841, *4 (7th Cir. Apr. 14, 2008)
For seventeen years, the Bonners defrauded the government – receiving payments for non-existent medical problems and non-existent children. A jury convicted them for wire-fraud and theft of government property. The Bonners do not appeal their conviction, but only the restitution the district court judge ordered under the Mandatory Victims Restitution Act.
The Bonners contend that restitution is a criminal penalty, and therefore the fact of amount of restitution must be found by a jury beyond a reasonable doubt. The Seventh rejects this argument as it has prior precedent which dictates that restitution is, in fact, a civil remedy appended to a criminal sentence. It notes, however, that the majority of the circuits have held differently. The CAs 2,3,5,8,9,11,DC all hold that restitution is a criminal penalty; only the CAs 7,10 hold differently.
This distinction, however, has not made a difference in the end result. As far as my research reveals, no court in the majority school has applied Booker to find that a jury need find the fact of restitution beyond a reasonable doubt. The en banc Third Circuit opinion in United States v. Leahy, 438 F.3d 328 (2006), provides an excellent discussion of both points of view and reveals the sharp divide. Third Circuit Blog covered that opinion here.
For seventeen years, the Bonners defrauded the government – receiving payments for non-existent medical problems and non-existent children. A jury convicted them for wire-fraud and theft of government property. The Bonners do not appeal their conviction, but only the restitution the district court judge ordered under the Mandatory Victims Restitution Act.
The Bonners contend that restitution is a criminal penalty, and therefore the fact of amount of restitution must be found by a jury beyond a reasonable doubt. The Seventh rejects this argument as it has prior precedent which dictates that restitution is, in fact, a civil remedy appended to a criminal sentence. It notes, however, that the majority of the circuits have held differently. The CAs 2,3,5,8,9,11,DC all hold that restitution is a criminal penalty; only the CAs 7,10 hold differently.
This distinction, however, has not made a difference in the end result. As far as my research reveals, no court in the majority school has applied Booker to find that a jury need find the fact of restitution beyond a reasonable doubt. The en banc Third Circuit opinion in United States v. Leahy, 438 F.3d 328 (2006), provides an excellent discussion of both points of view and reveals the sharp divide. Third Circuit Blog covered that opinion here.
Saturday, April 12, 2008
Split Noted: Is Prejudgment Interest Available Under the Warsaw Convention?
Per Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., 2008 WL 1021939, *25-*26 (7th Cir. Apr. 11, 2008)
Sompo Insurance brought suit against Nippon Cargo Airlines (NCA) seeking compensation for the damage to computer equipment caused during transport. After a bench trial, the district judge entered judgment for Sompo but denied prejudgment interest.
In the course of his opinion, Judge Ripple provides an extended and informative history of the various international agreements governing air carrier liability. The unanimous panel affirms the district court’s holding, but notes that the circuits have split on whether prejudgment interest is available under the Warsaw Convention; the CAs 2,7 (no) differ from the CAs 5,9 (yes). Certiorari is highly unlikely as the Warsaw Convention was superceded in 2005, after the accident at issue here, by the Montreal Convention.
Sompo Insurance brought suit against Nippon Cargo Airlines (NCA) seeking compensation for the damage to computer equipment caused during transport. After a bench trial, the district judge entered judgment for Sompo but denied prejudgment interest.
In the course of his opinion, Judge Ripple provides an extended and informative history of the various international agreements governing air carrier liability. The unanimous panel affirms the district court’s holding, but notes that the circuits have split on whether prejudgment interest is available under the Warsaw Convention; the CAs 2,7 (no) differ from the CAs 5,9 (yes). Certiorari is highly unlikely as the Warsaw Convention was superceded in 2005, after the accident at issue here, by the Montreal Convention.
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