Right to Attorney Does Not Require Appointment of a Fourth Counsel on Eve of Trial

So says the Sixth Circuit. See United States v. Green, No. 02-1571.

Amount of Loss under Sentencing Guidelines for Financial Crimes is Reduced by the Amounts of Restitution

In an interesting fact scenario for a fraud amount of loss case, a defendant got his sentence vacated. He had fraudulently received progress payments on a loan from the Small Business Administration. He intended to complete the project, so the intended loss was zero. He eventually did complete the project, so the amounts he expended in doing so, contrary to the conclusion of the district court, are credited in calculating loss. Thus, even though the SBA eventually foreclosed and lost money, none of that is attributable to the fraud. See United States v. Rothwell, No. 04-5018. Never mind that on remand, Blakely will have been used to find the Guidelines unconstitutional and the district court will give the poor sap the same sentence he got the first time.

Working Late

Finally, in case you are having polling problems, the Sixth Circuit will be open Saturday morning, and Sunday, too, if you really need them. Phone them for details. (Your faithful blogger makes no promises as to whether he will be around to report on your weekend success or failure in that revered forum.)

CA2 (10.29.04)

The Second Circuit issued three opinions today affirming criminal convictions and sentences:

In United States v. Borrego, the court held that a district court does not have to resolve disputed sentencing issues, the resolution of which would not actually affect the defendant's sentence. In this case, the defendant received a downward departure under USSG 5K1.1, but argued that the court erred in refusing to resolve other disputed issues.

In United States v. Monsalve, the court summarily affirmed the district court's sentence, finding that the defendant had waiver her appellate rights in a plea agreement.

And in United States v. Gamble, the court affirmed the appellant's cocaine and firearms convictions over a number of arguments. Of all of those arguments, perhaps the most interesting was appellant's contention that his sentence (pursuant to the Armed Career Criminal Act, 18 U.S.C. 924(e)(1)) violated the Eighth Amendment. Today's opinion contains no real discussion of the issue however; apparently the court already held that such sentences are not unconstitutional. Makes me wonder why they bothered to publish this one.

Pre-Election Voter Challenges in Ohio Enjoined

A Sixth Circuit panel composed of one Carter appointee and two Clinton appointees has denied an emergency motion to stay the temporary restarining order of a Clinton appointed district court judge forbidding the conduct of pre-election voter challenges in Ohio. See Miller v. Blackwell, No. 04-4299/300/301. Ken Blackwell, the Republican Secretary of State, was the only defendant not to appeal the district court injuction. Jim Petro, the Attorney General and likely Blackwell opponent for the Republican nomination to be the next governor of Ohio, was among those who did appeal. Politics plays a role in all of this somehow; just how, I'm not sure.

In other less-than-earth-shaking-published opinions out of the Sixth Circuit today, we have:

-- Anti-Cyber-Squatting Law Applied to "www.foradodge.com" Registrant. See
DaimlerChrysler Corp v. Net Inc, No. 03-1950.

-- The "Based Upon Public Allegations or Transaction" Bar to Qui Tam Actions, 31 U.S.C. § 3730(e)(4)(a), Applied. See Dingle v. Bioport Corp, No. 03-1841.

-- A District Court’s Award of Summary Judgment in Favor of the United States on Claims of Gender and Disability Discrimination Brought Pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) Affirmed. See Peltier v. United States, No. 03-3623.

-- Summary Judment in Favor of All Defendants in a § 1983 Action. See Tucker v. City of Richmond, No. 03-6336.

-- Affirmance of Summary Judment That a Nursing Home Was Failing to Meet the Minimum Medicare Participation Requirements of 42 C.F.R. § 483.25(c). See Livingston Care v. HHS, No. 03-3489.

Why Hire an Appellate Lawyer?

Thanks to Raymond P. Wardfor bringing an article entitled, "Appeal in Error: Common Mistakes Made in Appeals" to our attention. Although students of critical thinking will be suspicious of an article, by an appellate lawyer, telling us why we should hire appellate lawyers in general, Mr. Stolley offers several compelling reasons for hiring an appellate lawyer. Indeed, I cringe when listening to very able trial lawyers fumble typical oral argument questions, e.g., "What is the standard of review?"

If you would not hire a criminal defense lawyer to plan your estate, then why would you hire a trial lawyer to handle your appeal? The skills, after all, are very different. Although Kenneth Starr has tremendous credibility as an appellate lawyer, would you want him arguing before a jury?

CA2 (10.27.04)

No new opinions from the Second Circuit yesterday, so instead I present you with this snippet from a recent interview with George P. Bush, son of Florida Governor Jeb Bush, who is supposedly the first lawyer in the Bush clan.

Council: Are there any lawyers in your family?

Bush: There are none. My grandfather's cousin — I have one extended family member, and I think he is a federal district judge up in Connecticut, Maine or something like that. I think he's a Walker, so he's kind of an extended family member.

Hmm. He's talking about John M. Walker, Jr., Chief Judge of the Second Circuit. I realize that Chief Judge Walker is no governor or president, but how does a lawyer -- especially one who himself clerked for a federal judge -- forget that a relative is chief judge of a federal appeals court?

Judicial Candidates Are People Too

In a Wednesday afternoon opinion, the Sixth Circuit refused to stay an injunction that prohibits the Kentucky Judicial Conduct Commission from enforcing a ban on judicial candidate's speech. See Family Trust Fndtn v. Kentucky Judicial Conduct Comm'n., No. 04-6250 (6th Cir. Oct. 28, 2004).

Footnote one points out something of a tactical blunder: The Commission stated at oral argument that it was not a proper party to the action, as, it claimed, it was not responsible for enforcing the regulation. One wonders: If the commission is not responsible for enforcing the ban, why would they care that they had been enjoined from doing so, and where would be the "irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted." Id. at 2.

California (10.27.04)

All quiet on the western front . . . . No new opinions expected from the Supreme Court of California this week.

CA9 (10.27.04)

Kahawaiolaa v. Norton
Exclusion of native Hawaiians from the Department of Interior's regulations acknowledging the federally recognized status of Indian tribes does not violate the Equal Protection clause of the Fifth Amendment. The court found the claim justiciable, distinguishing their claim to invalidate a provision that forbids them from applying to the Department of Interior for
recognition under the same regulatory criteria applied to indigenous peoples in other states from an attempt to have the court federally recognize an Indian tribe. The claim received rational basis scrutiny since the discrimination was among indian tribes, not against indian tribes as a group since the recognition of indian tribes is a political, not judicial determination.

Chavez-Perez v. Ashcroft
The INS does not violate the equal protection clause when it discriminates based on whether an alien's conviction record has been expunged. Petitioner was removed as an alien convicted of a felony controlled substance by the INS. At issue was whether the removal order violated petitioner's rights under the equal protection clause.

Because at the time his deportation order was upheld Chavez-Perez had suffered a judgment of conviction for a drug offense, we conclude that the INS has a rational basis for treating him differently from those aliens whose convictions have previously been expunged, or whose charges were deferred and later dismissed.

U.S. v. Fernandez
The court affirmed defendants' convictions for RICO and drug-trafficking charges, but vacated their sentences pending the Supreme Court's resolution of Blakely v. Washington.

Khotesouvan v. Morones
An alien ordered removed whose removal is not reasonably foreseeable cannot raise a colorable claim for release under the Due Process Clause of the Fifth Amendment until at least 90 days of
detention have passed. Because repatriation was futile, the petitioners claimed that their continued detention served no purpose other than punishment. The court held, however, that since the government was holding the alien under § 1231(a)(2), a provision authorizing
detention for 90 days only, the danger of “indefinite, perhaps permanent” civil confinement does not exist.

Aggregation of Government Employees Under the Family Medical Leave Act

Fain v. Wayne County Auditor, No. 03-1720 (7th Cir., Oct. 27, 2004) (Rovner for Easterbrook and Manion, J.J.)

The Family Medical Leave Act only applies to employers who employee 50 employees or more. The Wayne County Auditor's office only employed 12 employees. Is the Auditor's office nonetheless covered under the FMLA? A unanimous three judge panel said, "Yes."

Fain worked for the Auditor’s Office, which was located in the County building along with many other departments of the County government. Although the Auditor employed only 12 employees, the County employed significantly more than the 50-employee threshold for FMLA employee eligibility within that County building. Accordingly, this appeal turns on whether the Auditor should be considered independent from the County.

In determining whether an office is indepedent, the court will look first to state law. If state law does not provide the answer, a Census of Governments will provide the answer.

Threats Against the President (18 U.S.C. 371) Will be Analyzed Under the Reasonable Person Standard

United States v. Fuller, No. 03-4081 (7th Cir., Oct. 27, 2004) (Kanne for Flaum, CJ., and Coffey, J.).

We [ ] adhere to the objective standard for a true threat consistently employed by the court. Under this standard, a communication is a true threat if a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President.

A District Court's Informed Decision to not Depart Downward is not Reviewable

United States v. Dowell, No. 03-2747 (7th Cir., Oct. 27, 2004) (Kanne for Posner and Williams, J.J.)

This court determined in United States v. Franz that a district court’s refusal to depart downward may only be reviewed if the sentence was imposed in violation of the law. Thus, we review the sentence only if there is a legal error involved. There is no legal error, and therefore no jurisdiction for appellate review of a district court’s refusal to depart downward, when the district court understood that it had the legal authority to depart but, in its discretion, chose not to do so.

Abuse of Trust Enhancement Under §3B1.3.

Can the government or a government agency be a victim of an abuse of trust?

In United States v. Britt, No. 04-10151 (11th Cir., Oct. 26, 2004), a unanimous three-judge panel (Black, Carnes, and Hull) said, "Yes."

In addition to the two elements of the abuse-of-trust enhancement noted above, for the enhancement to apply, the defendant must have been in a position of trust with respect to the victim of the crime. Although we have not addressed this requirement specifically with respect to a crime committed by a government employee, our conclusion in Smith suggests the United States government, or more specifically the SSA, is the victim of Britt’s offense.

Id. at *7-8 (citations and quotation marks omitted).

Ohio Secretary of State May Only Count Provisional Ballots Cast in the Proper Precinct

In an afternoon opinion, the Sixth Circuit has reversed a decision that read the Help America Vote Act so as to require Ohio to count any provisional vote cast in the correct county. See Sandusky County v. Blackwell, No. 04-4265/66 (6th Cir. Oct. 26, 2004).

CA9 (10.26.04)

One new opinion on the ninth circuit today

Holley v. Meyer
The court reversed a summary judgment ruling in a Federal Housing Administration claim alleging discrimination. The court remanded to allow the district court to determine 1) whether Meyer personally liable as principal for the actions of his agent, 2) Meyer’s personal liability for negligent supervision of his agent, and 3) Meyer’s liability based upon piercing the corporate veil. In remanding, the court is allowing an amendment of the complaint to raise the piercing the corporate veil theory.

Clean Air Act Injunction Vacated for Failure to Give Proper Notice

The Sixth Circuit has also vacated an injunction concerning "fugitive dust" under the Clean Air Act for failure to give exhaust the 60-day notice requirement prior to bringing an enforcement action subsequent to the entry of a consent decree. The Court affirmed the dismissal of all other claims, due to the existence of the consent decree. See Ellis v. Gallatin Steel Co., 04-6421/22/29/78 (6th Cir. Oct. 26, 2004).

Bruton Lives

The Sixth Circuit also held that the admission of a police officer's grand jury testimony about a conconspirator's false but allegedly inculpatory statement concerning another defendant violated that other defendant's confrontation clause rights under Bruton and similar cases and was not harmless. See United States v. Macias, No. 03-5226 (6th Cir. Oct. 26, 2004).

Non-Encrypted Copyrighted "Codes" Are Not Likely Protected Under DMCA

The Sixth Circuit, in vacating a preliminary injunction, has ruled that a non-encrypted but copyrighted computer code is not likely to prevail at trial, and is thus not likely protected by general copyright law or the Digital Millennium Copyright Act. See Lexmark Int’l Inc v. Static Control, No. 03-5400 (6th Cir. Oct. 26, 2004). A concurrence believed that this does not go far enough, a dissent finds that it goes too far.

CA2 (10.26.04)

In United States v. Perez, the Second Circuit affirmed appellant's conviction over a claim that the district court improperly struck a juror for cause. The juror professed his ability to be impartial, but was an occasional criminal defense lawyer who was in the process of applying to the district's CJA panel.

Few prospective jurors will admit to bias, and most, when asked if they can be fair and impartial in deciding a matter before them, answer "Yes." Thus, the law charges the trial judge with ferreting out partiality of a prospective juror during the voir dire. There are no fixed rules of guidance because a variety of disparate factors must be weighed. The trial court, who observes the prospective juror and his demeanor while answering questions, has a superior opportunity to get some sense of the potential juror's mind-set, and to assess whether that person can decide the case in a truly fair and impartial manner. This exercise by the trial court of its insight, experience, and judgment is one we rarely second guess.

Two other, less interesting, cases decided by the CA2 so far today:

In JLM Industries v. Stolt-Nielson, SA, the court determined that an antitrust claim is arbitrable under the Association of Ship Broker & Agent's standard form contract for the parcel tanker industry (known as "ASBATANKVOY").

And in Rubens v. Mason, the court reversed a grant of summary judgment in a legal malpractice case because the district court improperly relied on a affidavit from an arbitrator in the underlying arbitration; the court held that the affidavit's prejudicial value far outweighed its probative value and should not have been admitted.

Mere Receipt of Child Pornography Does Not Allow a Sentence for Trafficking in Violation of the Child Pornography Prevention Act of 1996

The Sixth Circuit found that a district court erred by sentencing a defendant for receipt of child pornography, instead of sentencing for mere possession. Even though a jury found defendant guilty of receipt, and not of possession, the Court held that sentencing for trafficking is not permissible "when there is no evidence of trafficking beyond the receipt that is inherent every time there is evidence of less culpable ‘possession.’" See U.S.S.G. § 2G2 & 2G4. The case also rejected a claim that the government had failed to sufficiently prove that the images involved were depictions of actual children. See United States v. Farrelly, No. 03-5825/5928 (Oct. 25, 2004).

Fifth Amendment Right in Documents Is Not Created By Dissolution of a Corporation; and Magistrate Referrals May Be Made Informally

The Sixth Circuit also clarified the application of the Fifth Amendment right against compelled testimony in documents of a dissolved corporation and held that there is no requirement of a formal order of referral in order to refer a matter to a magistrate. See United States v. B & D Vending Inc., No. 03-6008 (6th Cir. Oct. 25, 2004).

Daubert Applied

The Sixth Circuit has utilized a published opinion to remind the world that a district court judge must act as a gatekeeper in admitting expert testimony, but must allow individuals to qualify as an expert based upon experience. See Dickenson v. Cardiac and Thoracic Surgery, No. 03-5355 (6th Cir. Oct. 25, 2004).

CA2 (10.25.04)

Today's Second Circuit decision reads like something out of Law & Order. Following remand from the Supreme Court in light of Sell v. United States, the Second Circuit considered in United States v. Gomes whether the district court properly authorized the government to involuntarily medicate a criminal defendant so as to render him fit to stand trial. Applying the Sell factors, the court determined that it did. The court also noted that the Supreme Court did not specify a standard of proof for the Sell factors, and held that the government must demonstrate the factors by clear and convincing evidence.

Weekend News: Provisional Balloting to be Precinct-Wide in Ohio Rather than County-Wide, at Least for Now

While the opinion is not yet on the Sixth Circuit site, the AP reports that the Sixth Circuit was busy Saturday reversing the lower court ruling that demanded that Ohio Secretary of State Kenneth Blackwell allow provisional balloting for anyone who showed up to vote in the right county, but wrong precinct. The report implies that the Democrats are deciding whether to request en banc review or cert. According to the article:

In Missouri and Colorado, judges have ruled that votes in the wrong place
don't have to be counted. Provisional ballots are not counted until after
the election. They are set aside and inspected by Democratic and Republican
election board employees to establish their validity.

States nationwide have adopted individual standards for when a
provisional ballot can be cast and counted.

Twenty-six states and the District of Columbia require a provisional ballot
to be cast in the correct precinct, or it will not count.

For background, see our earlier coverage.

Securities Fraud Class Action Against Bridgestone/Firestone Reinstated

The Sixth Circuit reinstated part of a securities fraud class action against Bridgestone and its subsidiaries, including Firestone, stemming in part from the Ford Explorer rollover cases. See City of Monroe Employees Retirement Sys. v. Bridgestone Corp, No. 03-5505 (Oct. 22, 2004).

CA2 (10.22.04)

Big day today: four published opinions. In the first, the court reversed Judge Weinstein's grant of a writ of habeas corpus, finding that petitioner's counsel was ineffective for failing to object to the very jury instruction that the Supreme Court held invalid 25 years ago in Sandstrom v. Montana (i.e., "the law states that a person intends the natural consequences of his acts."). The CA2 agreed, but remanded for a hearing so that the deficient trial lawyer could explain his (mis)conduct. This seems to be a formality, though, because the court "concede[d] that it is unlikely that counsel will be able to offer an explanation to defeat the conclusion that his performance was a result of ignorance, inattention or ineptitude." Ouch.

Next, in Motorola Credit Corp. v. Uzan, the court upheld the district court's $4.2 billion award in this fraud/RICO case. I'd like to tell you more, but -- despite the big names who argued this case -- I keep falling asleep on page 3. Sorry.

And in Hallock v. Bonner, the court held that an action brought under the Federal Tort Claims Act and subsequently dismissed for lack of subject matter jurisdiction does not result in a "judgment in an action under section 1346(b) [of the FTCA]." 28 U.S.C. § 2676. 4. That prior dismissed suit, therefore, was no bar to plaintiffs later bringing a Bivens claim based on the same incident. According to the court, its decision breaks a tie on this issue between the Tenth and the Third circuits, who are split (the CA2 sided with the CA10). S.D.N.Y. Judge Marrero concurred.

Finally, in United States v. Homa International Trading Corp., the court clarified some ambiguities surrounding criminal liability for violating our export embargo on Iran.

Reading this per curiam opinion raises an interesting point, though. To my knowledge, the Second Circuit is the only federal appellate court that hasn't standardized typeface and formatting for its slip opinions. The result is that there's no mystery about which judge on a panel wrote a per curiam opinion. For example, compare these other recent slip opinions of the members of the Homa panel: Judges Walker, Parker, and Wesley. Chief Judge Walker's style is quite distinctive as compared to the others, using the courier font that is characteristic of the circuit's older judges. Judges Parker and Wesley both use the more aesthetically pleasing Times font, but there are still tell-tale signs of each judge's individual formatting choices: Judge Wesley, for example, indents the second line of each party's appearance; Judge Parker does not. Judge Wesley uses line numbering; Judge Parker does not. Judge Wesley italicizes for emphasis; Judge Parker underlines. These differences clearly indicate that Judge Wesley wrote the per curiam opinion in Homa. Does it matter? Perhaps not. But it's interesting. To me, at least.

In other Second Circuit news, the AP is reporting that the CA2 yesterday denied Maurice Clarett's petition for rehearing en banc. Clarett, you may recall, is the Ohio State football player who sued the National Football League alleging that its age limit on draft eligibility violated the antitrust laws. Although Clarett got a district judge to agree with him -- causing a not insignificant clamor in the nation's sporting news -- the Court of Appeals quickly reversed, holding that it "need only retrace the path laid down by [the circuit's] prior cases to reach the conclusion that Clarett’s antitrust claims must fail." Double Ouch.

Terminated Federal Employee Pursuing a "Mixed-Claim" of Employment Discrimination Wins Appeal of Dismissal for Failure to Exhaust Administrative Remedies

The Sixth Circuit clarified the application of the duty to exhaust administrative remedies in the context of "mixed claims" of federal employees. The case involved a federal employee who was pursuing an action with the EEOC, and was later terminated, prompting her to pursue a separate action before the Merit Systems Protection Board "MSPB." When the EEOC action terminated, she appealed it to the MSPB, creating a second action there. When the first MSPB action terminated, she filed an action in district court. The government then got the MSPB to dismiss the other action before it, arguing that the district court action deprived it of jurisdiction. Having secured this result, the Air Force sought to have the termination claim barred in the district court action for failure to exhaust. The district court bought this, but the Sixth Circuit did not. See Valentine-Johnson v. Roche, Sec Air Force, No. 03-1262 (6th Cir. Oct. 22, 2004).

CA1 (10.20.04)

In Mourad v. C.I.R., the court held that an “S-corporation” election by the sole shareholder of a corporation is not automatically terminated by the filing of a bankruptcy petition. The First Circuit upheld that Tax Court's rejection of the taxpayer’s argument that as the sole shareholder of an s-corporation, the moment he files for bankruptcy, the corporation ceases to be an s-corporation and therefore he is not personally liable for the corporation's taxes. "Viola," the taxpayer argued, all of the downsides of being the sole shareholder in an s-corporation go away, since 26 U.S.C. § 1362 provides that the s-corporation status evaporates if, among other things, the corporation no longer has individuals as shareholders and now the trustee had stepped into his shoes. The court looked to In re Stadler Assocs., Inc., 186 B.R. 762 (Bankr.S.D.Fla.1995), which held simply that "The rules of statutory construction prohibit this Court from adding a fourth method of terminating an S corporation election where the Internal Revenue Code clearly sets forth the aforementioned three [26 U.S.C. § 1362] methods..."

Despite the appeal of such an argument to a small business, this is the time that this issue has been directly addressed on appeal. Since this was an appeal from the Tax Court (in one part of the opinion the court says that the lower court was a "District Court") court did not address the issue of whether shareholders of a corporation that is about to file bankruptcy can revoke such an election. Finally, the court dismissed an argument that the taxpayer was entitled to use a low income housing tax credit from one tax year against the current tax year.

See, also, Marvin Kirsner's article on this case when it was at the Tax Court here; a (perhaps biased) website about the facts (and correspondence) surrounding this case here; and an article in the Journal of Accountancy about this case here. Also, the First Circuit's B.A.P. opinion in the related proceeding can be found here.

California (10.21.04): No opinions are expected from the California Supreme Court today. Stay tuned Monday.

Florida (10.21.04)

Foreshadowing the coming showdown in the United States Supreme Court over the "Beef: It's What's for Dinner" campaign, a Florida appellate court struck down a tax on citrus growers as unconstitutional.

The growers in Department of Citrus v. Graves Brothers believe the tax—all of which goes to fund the Florida Department of Citrus’ promotional campaigns—violates their freedom of speech. The Florida Department of Citrus argues that most growers want to participate in the generic promotional campaigns and that the tax funds governmental speech that is exempt from First Amendment protections.

The Second District Court of Appeal's opinion relies in part on Livestock Marketing Ass'n v. United States Department of Agriculture, where the Eighth Circuit held that the "Beef: It's What's for Dinner" campaign is not governmental speech exempt from First Amendment protections. Rather, citrus growers are more like the mushroom growers in United States v. United Foods because the citrus market is not collectivized or protected from competition. The St. Petersburg Times has more on the case here.

The United States Supreme Court will grapple with these same issues on December 8 when the Livestock Marketing case is heard (as consolidated cases Veneman v. Livestock Marketing Association, No. 04-1164, and Nebraska Cattlemen v. Livestock Marketing, No. 04-1165). Goldstein & Howe, representing Livestock Marketing, have posted the respondent’s brief here. The ABA has posted petitioners’ briefs: The brief for Agriculture Secretary Ann Veneman is posted here and the brief for the Nebraska Cattlemen is posted here. Jenner & Block has a nice summary here.

CA2 (10.21.04)

Three new published opinions from the Second Circuit today (none yesterday).

In United States v. Sosa, the appellant was convicted of illegal reentry into the United States. He challenged the underlying removal order because the immigration judge did not inform him that he was eligible for discretionary relief (because the Supreme Court had not yet decided INS v. St. Cyr). The district court dismissed the collateral attack, holding that Sosa had not exhausted his administrative remedies or been denied judicial review, as required by 8 U.S.C. 1326(d). The Court of Appeals reversed, holding that Sosa was excused from the exhaustion requirement because he did not knowingly and intelligently waive administrative review, and that he had satisfied the judicial review requirement because he had no practical opportunity to seek judicial review. Finally, the court held that the IJ's failure to inform Sosa of the availability of discretionary relief was fundamentally unfair, but remanded to the district court to consider whether Sosa was prejudiced.

In another illegal reentry case decided today, United States v. Scott, the court affirmed the appellant's sentence over challenges to the district court's computation of his criminal history category and its refusal to grant a downward departure. Note that the government gave credit to the law student intern who assisted on the brief. That was nice.

Today's final decision, Fabri v. United Technologies International, starts out promisingly enough: "Like Humpty Dumpty, a jury verdict once broken is difficult to put together again." It's all down hill from there, though. The upshot is that defendant-appellant waived its argument that the jury's verdict was internally inconsistent by failing to properly raise it below. And who came up with the bright idea to give the appellant the acronym UTI?

In other CA2 news, on Tuesday, a motions panel granted Frank Quattrone's motion for bail pending appeal. Quattrone, the former Credit Suisse First Boston uber-analyst, was convicted of obstruction of justice after ordering employees to destroy documents about CSFB's allocation of IPO shares.

Finally -- in other celebrity white-collar CA2 news -- Martha Stewart filed her appellate brief on Wednesday. In the meantime, Martha is serving her sentence and gathering new material for future episodes of "Martha Stewart Living."

Another Sixth Circuit Loss for Nader:
O-PIRG Appeal of EPA Decisions Reviewing Actions of Ohio EPA Denied.

The Sixth Circuit has denied an appeal of the EPA’s decision not to issue a notice of deficiency to the Ohio EPA and the EPA’s interpretation of § 502(b)(10) of Title V of the Clean Air Act, 42 U.S.C. §§ 7661 – 7661f. The Sixth Circuit held that the EPA is not required to invoke its full enforcement authority every time it noted areas that required improvement in a state implementation plan to enforce the National Ambient Air Quality Standards established by the EPA. Also, the Court rejected as untimely a challenge to underlying EPA regulations that O-PIRG sought bring to the EPA’s attention in response to a request for comments regarding the EPA’s implementation of the regulations. See Ohio Public Interest Research Group, Inc. v. Whitman, No. 02-3805/4116 (6th Cir. Oct. 21, 2004).

CA9 (10.20.04)

Three new opinions today from the ninth.

Cetacean Community v. Bush, et al.
Plaintiff did not have standing to sue in a challenge to the U.S. Navy's use of sonar during wartime conditions. Plaintiff was a group called The Cetacean Community, "the name chosen by the Cetaceans’ self-appointed attorney for all of the world’s whales, porpoises, and dolphins." Although "nothing in the text of Article III explicitly limits the ability to bring a claim in federal court to humans," none of the statutes that the action was brought under sufficiently conferred standing. So, under the court's analysis, congress could legitimately pass a statute allowing animals standing, but has thus far failed to do so.

Theis Research, Inc. v. Brown & Bain
When a party is seeking to vacate an arbitration award, the amount in controversy for diversity jurisdiction is the amount in dispute in the underlying litigation between the parties, and not the amount of the arbitration award. The arbitration award which Theis moved to vacate was for zero dollars. Contemporaneously with that motion, Theis filed a complaint that sought damages from Brown & Bain in excess of $200 million. The claims Theis alleged in this complaint substantially mirrored the claims it had asserted in the arbitration proceeding, which claims the arbitrator had rejected.

City of Sausalito v. O'Neil

The court dismissed Plaintiff's suit to enjoin the development and rehabilitation of Fort Baker, a former military base, with exception to the Coastal Zone Management Act and the Marine Mammal Protection Act claims. The circuit court first held that the city-Plaintiff had standing to assert all the claims since

as a municipality, Sausalito may sue to protect its own “proprietary interests” that might be “congruent” with those of its citizens. . . . [A] municipality’s cognizable interests are not confined to protection of its real and personal property. The “proprietary interests” that a municipality may sue to protect are as varied as a municipality’s responsibilities, powers, and assets

Since "a municipality has an interest in . . . its ability to enforce land-use and health regulations," the city had standing.

Gun Dealer Has the Burden of Proving His Satisfaction that an 18 - 21 Year-Old Purchaser of Ammunition Intends Such Ammunition for Use in a Rifle or Shotgun, and Not a Handgun

The Sixth Circuit upheld a district court denial of an appeal of an ATF revocation of a gun dealer’s licence for selling ammunition to an 18 year-old without having first satisfied himself that the 18-year old bought the ammunition for use in a rifle, in violation of (the bullet was unfortunately used to commit suicide with a handgun). See Appalachian Resources Devel. Corp. v McCabe, No. 03-5537 (6th Cir. Oct. 20, 2004), interpreting 18 U.S.C. § 922(b)(1); 27 C.F.R. § 178.99(b); and 18 U.S.C. § 923(e).

CA9 (10.19.2004)

In Membreno v. Ashcroft, Membreno was ordered deported by an immigration judge after being arrested for firing four gunshots at the owner of a restaurant that competed with
the restaurant owned by Membreno and her husband. Membreno argued that her crime fell within the “petty offense” exception of INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II), and could not therefore be construed as a crime involving moral turpitude, a requirement for deportation under the INA. The circuit court disagreed, refused to review the lower court's designation of the offense as a felony, and dismissed.

Kuba v. State of California
The 1-A District Agricultural Association's First Amendment Expression Policy, which prohibited demonstrators outside designated "free expression zones" is unconstitutional on its face. Under the California Constitution, a restriction that targets speech must serve a "significant government interest" and be "narrowly tailored." Although organizing traffic could be a significant interest if the problem were big enough, the small amount of demonstrators in this case made the interest not sufficiently significant.

The court ordered Cornejo-Barreto v. Siefert be reheard en banc. The court previously decided that the Secretary of State's decision concerning extradition of Cornejo-Bareto, a Mexican citizen and US permanent resident, was not subject to judicial review. See the previous opinion here.

CA2 (10.19.04)

Two new opinions from the Second Circuit so far today.

In A.A. v. Philips, the court considered who bears the burden of proof when a student files a claim under the Individuals with Disabilities Education Act charging a state education agency with failing to adequately ensure compliance by local education authorities with IDEA's requirements. The court held that "a plaintiff bears the burden of proof in establishing that the [state education authority] failed to satisfy its IDEA monitoring and supervisory duties," and thus affirmed the district court's dismissal of plaintiffs' claims.

In SEC v. Credit Bancorp., the court "confront[ed] two significant issues involving the extent to which a secured lender is protected from adverse claims to its security" under the UCC. I'll take their word for it. Anyone interested in reading this opinion is advised to first read the eight cases cited on page four of the opinion; the court "assume[s] familiarity of the facts of each of these district and appellate court cases."

Also, two opinions were issued yesterday after my post went to press. In addition to the Worldcom case, which I discussed here, the court decided McKenna v. Wright, which decided the viability of deciding a qualified immunity defense on a Rule 12(b)(6) motion. The court also decided Geneva Pharmaceuticals Technology Corp. v. Barr Laboratories, Inc., a lengthy antitrust decision.

Under the Plain View Doctrine, Car Keys do not Have a per se Incriminating Nature.

United States v. Cellitti, No. 03-3777 (Rovner, J.)

The officers [who were looking for a gun that Cellitti had threatened people with] did not locate a rifle in the house and thought that it was hidden somewhere nearby—perhaps in a car. As it turned out, the officers’ instincts were correct. But at the time they located the keys, the police had no information whatsoever tying that lone set of keys found in a house occupied earlier by nine adults to the crime they were investigating. Nothing about the keys suggested that they belonged to any of the three people Singleton said were present during the altercation with Cellitti. Nor did anything link those keys to the Neon—a car that had been involved in the earlier assaults and was parked in front of the house. So far as we can tell from the record, nothing about the keys revealed that they corresponded to a Buick, and in any event there had not been a Buick involved in the morning’s altercation, no Buick was parked in front of the house, and the officers had no information that the gun might have been in a Buick. The gun could have been anywhere, and the officers’ speculation that it might have been hidden in a car is insufficient to establish probable cause to seize the keys. We thus hold that the seizure of the keys did not fall within the plain view exception, and therefore violated the Fourth Amendment.

"Prejudice" in a Habeas Motion Alleging Inneffective Assistance of Counsel.

May a convict present an inneffective assistance of counsel claim in the Sevent Circuit when his lawyer snatched defeat from the jaws of a winning motion to supress? Until today, "No."

The Seventh Circuit overruled Holman, which held that a convict could not claim ineffective assistance of counsel unless he showed that IAC prejudiced him. A convict could only be prejudiced if his lawyers ineffectiveness created the risk that an innocent person would be convicted. Thus, under Holman, a convict could never establish IAC for his lawyer's bumbling a suppression motion.

In Owens v. United States, No. 03-1507, Judge Posner wrote for a unanimous three judge panel:

We conclude that Holman should be overruled, and we have therefore circulated this opinion to the full court in advance of publication, pursuant to 7th Cir. R. 40(e). A majority of the judges voted not to hear the case en banc.

This is a huge win for criminal defendants and the Fourth & Sixth Amendments.

One-year AEDPA Filing Limitation Can Run While in State Custody

The Sixth Circuit held that, in light of its previous decisions that a person in state custody can file a sec. 2255 federal habeas petition, the one-year filing limitation enacted by the AEDPA runs while a person is in state custody, assuming they have already received a federal sentence. See Ospina v. United States, No. 03-4035 (6th Cir. Oct. 19, 2004).

Sixth Circuit Finds Evidence Gathered After an Unconstitutional Failure to Knock and Announce to Not Be Poisonous Fruit

The Sixth Circuit declined to apply the Wong Sun fruit of the poisonous tree doctrine to evidence gathered after an unannounced entry (the magistrate who issued the warrant did not approve a request for an unannounced entry). The location of the gathered evidence in defendant's car was already known to the police and the Mirandized defendant yielded his keys to police after receiving threats to dissect his car with a blow torch, thus insulating the recovered evidence from the Fourth Amendment breach. United States v. Smith, No. 02-4261 (6th Cir. Oct. 19, 2004).

Florida (10.19.04)

In AFL-CIO v. Glenda Hood (no. 04-1921) yesterday, the Supreme Court of Florida upheld a Florida law that says provisional ballots must be cast in a voter’s home precinct. The AFL-CIO contended that the precinct-specific provision was an unnecessary restriction on the right to vote, in violation of the Florida constitution. State officials argued that under the Florida constitution, the legislature is authorized to impose reasonable and necessary regulations on the “place” at which an elector may cast his or her vote. The court sided with the state, finding that requiring provisional ballots to be cast in a voter’s home precinct is not an “[u]nreasonable or unnecessary restraint[] on the elective process.”

The St. Petersburg Times has a report here, the Tallahassee Democrat reports here, and the Miami Herald reports here. The Los Angeles Times covered the decision here. The blawg Abstract Appeal has more on the case here.

Ohio Investment Tax Credit Found to Violate the Commerce Clause for Giving to Industries Subject to Ohio Franchise Tax with its Left Hand, Rather than its Right.

The Sixth Circuit reissued an opinion that found an investment tax credit unconstitutional, while recognizing that subsidies of an equal amount would not pose the same problems. The reissued opinion revises the Sept. 2 original, 383 F.3d 379, only by relegating a textual citation to a law review article to new footnote one. The opinion, though issued prior to this blog's existence, is referenced due to its possible interest to the law and economics and tax crowds. See Cuno v. Daimler Chrysler Inc., No. 01-3960 (6th Cir., Oct. 19, 2004).

CA4 (10.18.2004).

The Fourth Circuit did not issue any published opinions today.

California (10.18.2004)

In People v. Williams, S110377, the Supreme Court of California held that where a defendant is sentenced in two different cases under the three strikes law, the trial court can add enhancements for prior serious felony convictions to each sentence for a new serious felony conviction. The defendant in this case was sentenced on the same day for two separate crimes and the trial court added enhancements to both sentences, based on the defendant's two prior felony convictions. In affirming the sentence, the high court stated that adding enhancements in both cases is “not inconsistent” with the voter’s intent “to increase sentences for recidivist offenders.” “The Three Strikes law,” the court said, “does not draw any distinction between status enhancements, based on the defendant’s record, and enhancements based on the circumstances of the current offenses, and the Three Strikes law generally discloses an intent to use the fact of recidivism to separately increase the sentence imposed for each new offense.”

While we’re on the subject of California’s three strikes law, note that Proposition 66 on the November ballot attempts to limit second and third strikes to serious or violent felonies. SoCalLawBlog and Legal Reader have excellent discussions of the proposed changes here and here.

CA9 (10.18.2004)

One new opinion from the ninth circuit today:

Rivera v. Ashcroft was an appeal from a district court's denial of a writ of habeas corpus, where Rivera had accepted deportation and waived his right to appeal the Immigration Judge's ruling. The court held that this was not a waiver of citizenship and, therefore, Rivera was entitled to habeas review.

[A] U.S. citizen cannot lose that status unless the government can prove that the person intended to relinquish citizenship. We can think of no reason why citizens illegally deported by the government should be exempt from that rule.

CA2 (10.18.04)

The Second Circuit today issued its much-anticipated decision in Retirement Systems of Alabama v. J.P. Morgan Chase & Co., better known as In re Worldcom Securities Litigation. Today's opinion explains the reasoning behind the court's summary reversal of the district court in August.

In a nutshell, plaintiffs brought a securities fraud suit in Alabama state court that was substantially identical to the huge Multi-District Litigation pending in the Southern District of New York. The Alabama judge -- unlike every other state court judge dealing with Worldcom cases -- refused to coordinate its schedule with the federal court's. The Alabama court set a trial date of October 18, 2004; the federal suit is set for trial in January 2005.

The district court invoked the All Writs Act to enjoin the Alabama court from trying the case first. In Judge Cote's view, the injunction was "necessary in aid of [her] jurisdiction." The Second Circuit disagreed, relying on the limitations imposed by the Anti-Injunction Act, and held that the district court's desire to preserve its trial date was insufficient. Moreover, a federal court has no legitimate interest in enjoining a state court so that it can try a case first.

Any time parallel state and federal actions are proceeding against the same defendant, it is conceivable that occurrences in the state action will cause delay in the federal action, by provoking motion practice in federal court regarding the effects of state-court rulings, or simply by diverting the attention of the defendant. Such a rule would in effect create an additional exception to the Anti-Injunction Act for circumstances where a federal court finds it convenient to enjoin related state proceedings—an approach contrary to the Supreme Court’s direction that we construe doubts about the permissibility of an injunction "in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy."

In other Worldcom-related CA2 news, last week Judge Scheindlin certified a class in another securities mega-fraud, In re Initial Public Offering Securities Litigation. (The IPO cases, while not getting nearly the publicity of Enron, Worldcom, Adelphia, et al., are a big deal. Plaintiffs are already guaranteed to recover $1 billion!) What does this have to do with the Worldcom case? Simple. Judge Scheindlin's decision is concerned with precisely the same issue that captured the Second Circuit's attention when it granted interlocutory appeal from Judge Cote's class certification decision in Worldcom (in an appeal captioned Hevesi v. Citigroup). That appeal was mooted when the parties settled on the morning of oral argument, so it seems exceedingly likely that the court will take an interlocutory appeal from the IPO decision. The issue is whether a district court is required to make an explicit finding that alleged fraudulent activity affected market prices if plaintiffs want to rely on the so-called "fraud on the market" presumption of reliance. In Hevesi, the specific question was whether analyst reports affect market price; in IPO, whether tie-in agreements (and maybe analyst reports as well) affect them. Scintillating stuff.

ERISA Administrator's Refusal to Expand Time for Filing Evidence Found to Be Both Arbitrary and Capricious

One of the Sixth Circuit's unpublished opinions today vacates and remands a district court order that had thought an ERISA administrator to whom discretion had been reserved in administering the plan abused said discretion by refusing to grant a second, last-minute request to expand the period for submitting evidence to be considered in appealing a denial of benefits. See, Yonts v. Continental Casualty Co., No. 03-5673 (6th Cir., Oct. 18, 2004).

Electoral Appellate News from the Sixth Circuit

The Ohio News Network reported on Friday that Ohio Secretary of State Kenneth Blackwell appealed to the Sixth Circuit the issuance of a preliminary injunction that requires him to allow conditional ballots to be cast by voters who show up at the wrong polling station, providing the wandering voter has at least found a polling station in the correct county. The case has been given appellate case numbers 04-4265/66. No sign of an appeal of the order denying Ralph Nader access to the Ohio ballot.

On Wednesday, the Supreme Court of California granted review to these cases:

Blair v. Superior Court, S126541: Are county procedures for selecting prospective jurors constitutional? A Hispanic defendant on trial for murder challenged the group of prospective jurors on the grounds that Hispanics are significantly underrepresented and systematically excluded from jury venires. A defense expert testified that Hispanics constitute 14.6% of the jury-eligible population and 8.8% of jury venires. The Court of Appeals found that jury venires, which are drawn from motor vehicle and voting records, do not systematically exclude Hispanics and that the disparity is not unconstitutional.

General Motors v. Franchise Tax Board, S127086: Did net proceeds from certain investment transactions constitute "gross receipts" for purposes of the California sales factor? O’Melveny & Myers has a nice summary of the Court of Appeal’s holding.

Grace v. eBay, S127338: Can internet businesses like eBay be held liable for defamatory web postings? The Recorder reported:

[This case] arose after Roger Grace, editor and co-publisher of Los Angeles' Metropolitan News-Enterprise, purchased vintage magazines on eBay and then criticized their delivery and condition. The seller responded with postings that called Grace "dishonest all the way!!!!" and demanding that he be banned from the Web site.

L.A.'s 2nd District Court of Appeal ruled in July that eBay had protected itself with a release provision in its user agreement that relieved the company of liability for comments by one user against another. But the court said that the California Decency Act of 1996 doesn't immunize eBay against liability for distributing information it knows or had reason to believe was false.

You can read the whole article here.

In re Marriage of Rosendale, S126908: Can a court decline to enforce a premarital waiver of spousal support if at the time of enforcement it would be unconscionable to do so? Eight years into marriage, a wife was in a life-threatening car accident that left her unable to earn a living, and her husband petitioned the court for dissolution of marriage and filed a motion to determine the validity and enforceability of their premarital agreement.

People v. Adams, S127373 and People v. Cage, S127344: In these two cases, the court will consider whether admission of testimonial hearsay by an unavailable declarant violated the confrontation clause in the wake of the United States Supreme Court’s opinion in Crawford v. Washington, 124 S. Ct. 1354 (2004).

People v. Pokovich, S127176: Can statements made by a criminal defendant to psychiatrists, who determined the defendant’s competency to stand trial, be admitted at trial to perjure the defendant’s testimony?

CA9 (10.15.2004)

Three new opinions today from the Ninth Circuit.

USA v. Smith
In an opinion by Judge Fletcher, the court held defendant's conviction for retaliating against a federal witness confirmed over an objection to jurisdiction. Her sentence, however, is vacated and remanded to determine whether a downward departure is appropriate as she argues her crime constituted aberrant behavior. The court upheld the sentencing guidelines as severable and not facially unconstitutional, but noted that the upcoming Booker v. United States in the Supreme Court will clarify the issue.

Creative Computing v. Getloaded.com LLC
In a suit involving trade dress and copyright infringement claims, judgment for plaintiff is affirmed where defendant violated the federal Computer Fraud and Abuse Act while operating its website. At issue was whether the required $5,000 of damage or loss must occur from one occurence, or over a year period. Otherwise, the court reasoned, a hacker could set up multiple $4,999 intrusions and escape liability.

Nader v. Brewer
The court held per curiam that the district court did not abuse its discretion in denying Ralph Nader and Peter Camejo's injunction against the Secretary of State of Arizona. Nader had argued that Arizona's election statutes were unconstitutional and sought to have his name added to the ballot. The circuit court did not reach the merits as they could not see abuse of discretion.

CA7 (10.15.2004).

Today the Seventh Circuit issued four published opinions, and denied one motion to stay a mandate.


Tuffendsam v. Dearborn Bd. Health, No. 04-1486 (Posner, J.).
A unanimous three-judge panel rejected the plaintiff's claim that the city's selective enforcement of a land use regulation violated her equal protection rights under a "class of one" theory. The panel also held that the plaintiff was not denied her due process rights because the city's lax enforcement caused her property to decline in value.

United States v. Henningsen, No. 03-3681 (Bauer, J.).
A unanimous three-judge panel affirmed the conviction under the mail fraud statute (18 U.S.C. 1371) of a city alderman who used the mail to solicit campaign contributions, but then diverted the funds for non-campaign related purposes. However, the panel vacated and stayed the defendant's sentence pending Booker.

Griffin v. Roupas, No. 03-3770 (Posner, J.).
Working mothers sued, alleging violations of equal protection and their right to vote. They argued that since their workload does not afford them time to vote on election day, that Illinois must allow them to cast an absentee ballot. Moreover, they argued that as a class, their right to vote was more heavily burdened, and thus Illinois had to provide them special voting accomodations. A unanimous three-judge panel rejected both arguments.

Pease v. Production Workers 707, No. 04-1928 (Easterbrook, J.).
A unanimous three-judge panel held that the plaintiffs, to the extent they did not procedurally default on their claims, did not establish that Local 707 of the Production Workers Union departed from its duty of fair representation in four employment actions.

Bricklayers Ill. 21 v. Banner Restoration, No. 02-3512 (Ripple, J.).
Judge Ripple denied Banner Restoration, Inc.'s motion to stay the a judgment pending its filing a petition for writ of certiorari.

CA4 (10.15.2004).

The Fourth Circuit did not issue any published opinions.

Don't Admit Hearsay, Or You'll Try the Case Again

If only because Judge Siler dissented, the Sixth Circuit found it necessary to publish a case that reminds us that hearsay is inadmissible. See Field v. Trigg Cnty. Hosp. , Nos. 02-6440/6517 (6th Cir. Oct. 15, 2004).

CA2 (10.15.04)

Three new opinions from the Second Circuit today.

In Jenkins v. United States, the court dismissed for lack of Article III standing a challenge to the constitutionality of certain provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. Jenkins, who had been convicted of murder in Georgia and had his habeas petition denied by a district court in Georgia and then by the Eleventh Circuit, sought a declaratory judgment in the Eastern District of New York. (Why? Wouldn't you, if you were in jail in Georgia?) The Second Circuit held that Jenkins could not satisfy the standing requirement that his alleged injury (i.e., an absence of "effective habeas review") was likely to be redressed by the requested relief because: 1) the constitutionality of AEDPA was a collateral legal issue, 2) a decision of the Second Circuit would not bind the Eleventh Circuit, and 3) the United States has no authority to release him from jail, as he is a state prisoner.

In United States v. Granik, the court affirmed the appellant's conviction for passing bad checks. The sole issue on appeal was whether the district court properly determined that the loss amount for the crime in question exceeded $500,000 when then defendant, in his plea agreement, stipulated that his crimes involved a loss of $500,000 to $800,000. Of particular note is Judge Winter's use of endnotes rather than footnotes. I wish all judges would adopt this practice; it makes reading Westlaw printouts so much easier but doesn't alter the way the opinions appear in the F.3d.

Finally, in Sharpe v. Conole, the cout affirmed the dismissal of plaintiff's claim under the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. s. 248. The unfortunately-named FACE Act, the court explained, requires not only the intent to injure, intimidate or interfere with those seeking access to clinics; it also requires the specific intent to do so because the person injured, intimidated, or interfered with was seeking reproductive health services. In other words, I suppose, random acts of violence that have the effect of interfering with clinic access aren't covered. What a shocker.

Reasonableness of belief Does Not Negate Willfulness in a Charge of Tax Evasion, But May Be Considered in Evaluating Willfulness of Action.

The Sixth Circuit, in rejecting a challenge to jury instructions, has joined other circuits that distinguish Cheek v. United States, 498 U.S. 192, 201 (1991). See United States v. Pensyl, No. 03-446 (6th Cir. Oct. 15, 2004).

Retired Sixth Circuit Judge Nathaniel Jones Blasts Bush for Failure to Appoint African-American Judges

In non-case law news, retired Sixth Circuit Judge Nathaniel Jones denounced President Bush for making only 7.5% of his appointments to the federal bench African-American. (Approximately 4% of the lawyers in America are of African descent. See here.)

Updating Wednesday's post, SCOTUSblog's Lyle Denniston is reporting that Zacarias Moussaoui's lawyers will file a cert. petition shortly.

CA2 (10.14.04)

It's been a slow week in the Second Circuit so far. Only one new opinion today. In United States v. Slaughter, the court affirmed the appellant's conviction (under the felon-in-possession statute) and sentence over a variety of challenges. Frankly, I can't tell why they even published this one.

No opinions expected from the Supreme Court of California today. Opinions are normally filed Mondays and Thursdays at 10:00 a.m. and are posted on the court's website.

CA9 (10.14.2004). The Ninth Circuit issued a lone published opinion today.

Sael v. Ashcroft, No. 02-71872 (Fletcher, J.).
Petitioners were two Chinese nationals who sought asylum in the United States. They presented substantial evidence that if denied asylum, they would face persecution in Indonesia. The Immigration Judge granted their application. The Board of Immigrant Appeals reversed, relying on two statements in a State Department report, namely that the Indonesian government "officially promotes" ethnic tolerance and a second that "[r]acially motivated attacks against ethnic Chinese [have] dropped sharply."

A unanimous three-judge panel (Fletcher, Trott, and Fisher), held that the BIA’s relying on two State Department reports failed the substantial evidence test in the face of credible evidence that two Chinese refugees would face prosecution in China. Id. at *14542 ("Although we agree with the BIA that these statements could undermine an asylum applicant’s claim that there is a 'pattern or practice' of persecution, the statements do not diminish Sael’s claim of the general persecution of ethnic Chinese, sufficient to characterize their status as 'disfavored' in Indonesia.")

The Greedy Clerks have spoken. Bench memo called us a "[g]reat blog," and Angry White Clerk "love[s] it." Currently, AL&P has six bloggers, but we'd like to have ten (but no more) people blogging with us. If you want to participate please send me an email.

Florida court strikes down abortion law
In a 3-0 decision in State of Florida v. Presidential Women's Center, the 4th District Court of Appeal struck down a law requiring doctors to give patients seeking abortions information about abortion risks and alternatives. The "Women's Right to Know Act" was passed in 1997 but never enforced pending litigation. The court found that the law "imposes significant obstacles and burdens upon the pregnant woman which improperly intrude upon the exercise of her choice between abortion and childbirth." State officials are considering an appeal. CNN has more coverage here.

Florida court hears arguments on provisional ballots
The Supreme Court of Florida heard oral arguments yesterday in AFL-CIO v. Glenda Hood (no. 04-1921). The AFL-CIO is challenging a Florida law that says provisional ballots must be cast in a voter's home precinct. After the 2000 election, Florida passed a law permitting voters whose names are not on the precinct rolls to cast “provisional ballots.” However, Canvassing Boards cannot count, provisional ballots unless the voters’ residency within the precinct at which they appear to vote can be established. The AFL-CIO contends that the law would “disenfranchise voters who are given incorrect information or, through circumstances beyond their control, such as a hurricane, go to the polls and the polling place has moved.” The Secretary of State argues that allowing voters to cast provisional ballots in any precinct would lead to chaos. The Supreme Court is expected to rule before the November 2 election.

Briefs, transcripts of oral argument, and video are available on the court's website. The St. Petersburg Times has a report here, and Abstract Appeal has more history on the case here.

What Does a Nose Know?

In an unpublished opinion from the Sixth Circuit, United States v. Chapman, No. 03-1651, Judge Boggs signals a willingness to entertain nuanced challenges to assertions of police dog competency in applications for search warrants, but finds the issue not to overcome Leon reliance. See 5-7. Judge Daughtrey, in dissent, criticizes the majority's application of Leon to stale information in the search warrant. See 4-5, 7-8.

CA3 (10.13.2004)

Today in Afran v. McGreevey the Third Circuit upheld the lower court ruling that a special election was unnecessary to replace Governor James McGreevey. New Jersey state law would require a special interim election if the Governor leaves office, but the circuit court decided that the office had not yet been officially vacated.

Under New Jersey law, a resignation is not valid unless it is in writing and filed in the office of the Secretary of State. "No resignation made in any other way or pretended to be made, shall be valid." N.J. Stat. Ann. 52:14-10. Plaintiffs have cited no statutory provision to the contrary, relying instead on the argument that McGreevey’s public announcement is "functionally far more definitive and final than would be a letter of resignation quietly and privately delivered to a government official." But the New Jersey legislature has set forth what constitutes a "definitive and final" resignation. McGreevey’s announcement has not satisfied these statutory requirements. By requiring a written filing with the Secretary of State – a clear and concrete manifestation of resignation – the legislature has assured clarity in the resignation process. Because Governor McGreevey has not yet officially resigned from the office of the Governor, there is no vacancy under the New Jersey Constitution.

CA4 (10.13.04)

The Fourth Circuit today denied rehearing in United States v. Zacarias Moussaoui, the case of the so-called "twentieth hijacker" involved in the September 11 attacks. In its earlier decision, the court held that Moussaoui was entitled to offer written statements from al Qaeda witnesses, but not to depose them. It also held that the government could pursue the death penalty against Moussaoui; the district court had dismissed the government's death notice as a sanction for refusing Moussaoui access to the witnesses.

CA9 (10.13.2004). Today the Ninth Circuit issued two published opinions.

United States v. Tzoc-Sierra, No. 03-10490 (Canby, J.).
A unanimous three-judge panel (Schroeder, Canby, and Tallman), applying applying de novo review (ala Feeney), affirmed a district court's departing downard based on the disparity between co-defendants' sentences. Judge Canby wrote:

A downward departure to equalize sentencing disparity is a proper ground for departure under the appropriate circumstances, so long as the codefendant used as a barometer for judging the disparity was convicted of the same offense as the defendant.

United States v. Branden, No. 03-10646 (Rhoades, J.)
A unanimous three-judge panel (Kozinski, Pregerson, and Rhoades) held that an appellate court does not have jurisdiction to hear a juvenile's challenging a violation of his rights under the Juvenile Delinquency Act’s speedy trial provision.

CA2 (10.13.04)

The Second Circuit issued only one published opinion today (and none yesterday). Today's opinion is so stultifying, however, that I dare not summarize it. Suffice it to say, a Westlaw search involving any or all of the following terms will do the trick: "attorney's fees," "statutory interest," "offer-of-judgment interest," and finally, "anti-corrosive cathodic protection system."

CA7 (10.13.2004). Today the Seventh Circuit issued five published opinions.

United States v. Oliva (Wood, J.), No. 03-2658.
A unanimous three-judge panel (Ripple, Rovner, and Wood) held that an unknown informant's tip was sufficiently corroborated to justify the defendant's being stopped.

United States v. Ceeballos (Bauer, J.), Nos. 02-1611 & 02-2725.
A unanimous three-judge panel (Bauer, Ripple, and Rovner) rejects the defendant’s four points of error:

The defendants argue: (1) that the district court committed error when it found that Ceballos’ statements at the time of his arrest were voluntary, (2) that the district court abused its discretion in admitting the testimony of Special Agent Michael Kress with respect to his interpretation of drug code language, (3) that the district court was in error in finding that law enforcement agents did not violate the defendants’ Fourth Amendment rights by interviewing them about booking information, and (4) that the district court abused its discretion in permitting the use of transcripts of the intercepted telephone conversations with identifying names in the margins of the transcripts.

Corely v. Roseword Care Ceter (Rover, J.), Nos. 01-3625 & 01-3642
A unanimous three-judge panel (Ripple, Rovner, and Evans) affirmed the dismissal of plaintiffs’ civil RICO action against nursing home.

This is the second time we have reviewed a district court’s grant of summary judgment against the plaintiff in this civil RICO action. We previously reversed and remanded a grant of summary judgment because the district court halted discovery before the plaintiff had a full opportunity to prove his case. Now that the plaintiff has been given every opportunity to make his case, we affirm the district court’s grant of summary judgment because the plaintiff is still unable to produce enough evidence to demonstrate a viable RICO claim against the defendants here.

Ghebremedhin v. Ashcroft (Rovner, J.), No. 03-1815.
A unanimous three-judge panel (Posner, Ripple, and Rovner) reversed the BIA’s denying a Jehovah’s witnesses application for aslymn.

Because the evidence supporting Ghebremedhin’s fear of persecution is so compelling that no reasonable factfinder could agree with the BIA’s decision, we GRANT the petition for review and REVERSE the BIA’s order. The case is REMANDED to the BIA to enter an order granting Ghebremedhin asylum.

Osler Institute, Inc. v. Forde (Evans, J.), No. 03-4107.
A unanimous three judge panel (BAUER, RIPPLE, and EVANS) held that although Forde was able to invalidate a noncompete clause from an employment contract, the loser pays provision of contract remained valid. The panel rejected Osler’s argument:

Osler appeals the fee award, contending that the employment contract was found to be void and therefore, for various reasons, the attorney-fees provision cannot be used to support an award of fees. The argument is, in effect, that Forde prevailed too thoroughly and cannot now recover her fees.

CA8 (10.13.2004). The Eighth Circuit Court of Appeals did not issue any published decisions today.

Sixth Circuit Sua Sponte Determines Original Complaint Wrongfully Removed From State Court

In a case removed on the basis of LMRA or NLRA preemption, the Sixth Circuit found a district court erred in determining that two causes of action in an amended complaint were preempted by the NLRA, because the action as stated in the original complaint was not removable. See
Alongi v. Ford Mtr. Co., No. 02-2514 http://156.125.5.91/opinions.pdf/04a0351p-06.pdf (6th Cir., Oct. 13, 2004).

Sixth Circuit vacates BIA for Failure to Explain its Decision

The Sixth Circuit vacated an opinion and remanded a case to the Board of Immigration Appeals, for failure to adequately explain its decision. See Gjyzi v. Ashcroft, No. 03-3054, http://156.125.5.91/opinions.pdf/04a0350p-06.pdf (6th Cir., Oct. 13, 2004).

Activist Petitions California Supreme Court

The New York Times is reporting today that Democratic activist Scott Rafferty has petitioned the Supreme Court of California to stop requiring voters who fax their ballots to sign a waiver of secrecy. The Times explains:

Federal officials have been working to find alternative ways for voters overseas to receive and return their ballots, including the Internet and faxing. In recent weeks, political operatives have raced to begin their own efforts to help voters, including the posting of a federal write-in ballot on private Web sites. Voters are being asked to use this ballot if their regular ballot fails to arrive in time.

Faxing, which 23 states allow, is controversial because it requires voters to give up their privacy in casting a ballot. Some members of the military have said they are concerned about intimidation.

The case is Bridgeman v. Shelley.

10/12 Ninth Circuit Opinions

Casey v. Moore
Casey's petition for habeas corpus was denied and murder conviction affirmed over challenges of prosecutorial misconduct and improper venue.

The state court of appeals concluded that the parties were able to select an impartial jury despite widespread knowledge of the case. Because this decision denying Casey’s claims of jury bias and improper venue was not contrary to, or an unreasonable application of, clearly established federal law, or made on the basis of an unreasonable determination of the facts in light of the evidence before the trial court, Casey is not entitled to relief on this claim.

Argued and Submitted
April 1, 2004—Seattle, Washington
Filed October 12, 2004
Before: William C. Canby, Kim McLane Wardlaw, and Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould

Qwest Corp. v. City of Portland
The court reversed a ruling that defendant-Citie's franchise and telecommunication ordinances were not preempted by the FTA. The circuit court held that the district court should have conducted an individualized FTA section 253 preemption analysis for each city's ordinance.

Argued and Submitted
November 3, 2003—Portland, Oregon
Filed October 12, 2004
Before: Arthur L. Alarcón, Warren J. Ferguson, and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson;
Concurrence by Judge Ferguson

Ronald Moran v. United States
In his claim for a refund of income taxes, plaintiff had sued for a net operating loss carry back under I.R.C. section 267(a)(2). The circuit court found that the district court properly determined he was not entitled to the carry back properly determined that plaintiff is not entitled to a net operating loss carry back under I.R.C. section 267(a)(2).

Argued and Submitted
March 3, 2004—Pasadena, California
Filed October 12, 2004
Before: John T. Noonan and Andrew J. Kleinfeld, Circuit Judges, and Jeffrey S. White, District Judge.
Opinion by Judge White

A mural on school property that students may decorate is not a public forum. As such, school officials may remove religious symbols a student painted on the mural.

The Eleventh Circuit Court of appeals released this per curiam opinion today:

Appellant Shelda Harris Bannon, on behalf of her daughter Sharah Harris, alleged that Appellees, School District of Palm Beach County and Principal Ed Harris, violated Sharah’s First Amendment rights by compelling her to remove religious words and symbols from murals painted for a school beautification project. The district court granted summary judgment for Appellees because it concluded (1) Appellees never created a public forum, (2) the murals were school-sponsored speech, and, (3) Appellees’ response was reasonably related to legitimate pedagogical objectives.

Ten Commandments Cases

By now I'm sure everyone has heard that the Supreme Court has accepted cert to hear the ten commandments cases. I thought a little summary of the circuit cases would be helpful.

The first opinion (351 F.3d 173) came from Texas, was written by Circuit Judge Patrick Higginbotham of the Fifth Circuit, and involved a six-foot red granite monument. The court held that since the statute 1) was installed due to a valid secular purpose and 2) did not have the primary effect of advancing or inhibiting religion, it was okay. The court used the establishment clause test most espoused to Justice O'Connor, whether the reasonable observer would think that the statute advanced religion.

The Kentucky Sixth Circuit opinion (361 F.3d 928) was written by Judge Clay and came out the opposite way. The court distinguished cases that involved the display of multiple religous emblems as not advancing religion, but held that a display focusing on the symbols of one religion did have the effect of establishing religion.

Friday's Ninth Circuit Opinions

The court handed down two cases on Friday (the 8th) .

In United v. Hayes, Hayes asked for a reversal of a district court judgment ordering the U.S. to reimburse him for restitution payments he made subject to a criminal judgment that was later vacated on collateral review. The circuit court affirmed the district court judgment.
United States v. Hayes was argued and submitted on 11/4/2003 in Honolulu, appealed before Judges Rheinhardt, Thomas, and Clifton. Judge Thomas wrote the opinion.

In Christopher S. v. Stanislaus County, autistic children part of a special education program filed an action against the county and local educational authorities alleging that the policy of providing a shorter school day to autistic students constitutes discrimination in violation of the Americans with Disabilities Act of 1990, section 504 of the Rehabilitation Act of 1973, and California anti-discrimination statutes. The district court dismissed the action for failure to exhaust administrative remedies under the Individuals with Disabilities Education Act, because the Students had not sought a due process hearing from the State of California. On appeal, the Students argued that the district court erred in dismissing their action for lack of jurisdiction, because they sufficiently exhausted their administrative remedies by pursuing a complaint resolution procedure to completion. The circuit court agreed, and reversed the district court’s dismissal of the case.
Christopher S. v. Stanislaus County was argued and submitted on 2/12/2004 in San Fransisco, appealed before Judges Tashima, Clifton, and Leighton (District Judge). Judg Tashima wrote the opinion; Judge Clifton wrote a dissent.

Standards of Review in the Ninth Circuit

The Ninth Circuit Court of Appeals has updated its excellent "Standards of Review." Here is its introduction:

The Ninth Circuit’s Standards of Review Outline was first produced in 1984 and has been published annually since 1990. This edition replaces those issued in prior years. The outline is organized by subject matter. An introductory section defines the several standards of review and illustrates their various applications. Criminal and civil appeals are separated, with each section containing standards pertaining to pre-trial, trial and post-trial decisions made by the district court. Finally, administrative appeals are discussed with introductory topics and then agency by agency. Please
note that this outline is not intended to express the position of the Ninth Circuit. Users are strongly encouraged to read the cases and conduct independent research. Cases may be withdrawn, amended or overruled.