Appellate Law & Practice

CA9: Expert witness on mens rea of tax protester (and contempt)

The Ninth Circuit blog points to United States v. Lawrence Cohen, __ F.3d __, 2007 WL 4485629 (9th Cir. Dec. 26, 2007).  The defendant is one of those “crazy” tax protesters.  Now, most of us refer to tax protesters as “crazy” in the sense that “they behave in a way that nobody I want to associate with behaves, and they have ideas that are so far outside my reality that I don’t take them seriously.”  But, this guy is different.  His lawyers actually think that he is crazy.  A shrink writes a report which reads ““[h]is behavior is driven by a mental disorder as  opposed to criminal motivation . . . Although it is true Mr. Cohen was not delusional or psychotic and was in possession of basic mental faculties, his will was in the service of irrational beliefs as a result of narcissistic personality disorder.”  The Ninth says that this testimony could have helped the trier of fact, because the expert was proposing to testify that “...once Cohen adopted [Irwin] Schiff’s views, Cohen would not change his mind.... [and] a narcissistic personality disorder like Cohen’s can cause a person to continue to believe something to be true despite overwhelming evidence of its patent absurdity.”  The Ninth expresses some hesitation about allowing in all of the proposed testimony, because some of it might really be invading the province of the jury to determine mens rea, but it says that weeding that stuff out is for the District Court. 

Anyway, the guy did lots of things to annoy the District Judge.  He was held in contempt (fifteen times), but the judge “failed to file contempt orders as required by Federal Rule of Criminal Procedure 42(b).”  The Ninth says the remedy for this is to remand, but “On remand, the district court may reinstate the contempt convictions and resentence him so long as it does not increase the individual punishments for any of the fifteen convictions.”  It also mentions a mathematical error. The Ninth says, however, that the District Court’s procedure (of doubling the sanction for each time he did something contemptuous) doesn’t raise due process problems, because it happened immediately after the offense occurred, and sentencing him post-trial for some of the contempts does not run afoul of Taylor v. Hayes, 418 US 488 (1974).  Each sentence was less than six months, so there was no jury-trial problem.

The post ends with this: 

Cohen has sparked much interest among bloggers. For a taste of a law prof's sour grapes (he was on the government's early briefing), see Brian Galle's comments here. More mens rea analysis (and some interesting gossip on other details of the case) can be found here. 

How good is your lawyer?

Three stories seem to be of note:

• A Public Defender points to a law firm that appears to trash PDs (I dissent on hermeneutic grounds and quibble over what it means to wiggle).
• A couple of weeks ago Robert Ambrogi pointed to a case in which a “lawyer rating” service was sued by a lawyer that didn’t like the way he was rated.  There are interesting comments from people with titles like "Vice President, Corporate Counsel Services, LexisNexis Martindale-Hubbell"
• I noticed some chatter on message boards where some thought it would be nice to download motions from PACER and critique them.  I disagree with most of the posters.  First of all, there is currently no service that even comes close to providing objective critiques of an attorneys’ performance.  Most of them rely on angry clients.  And, let’s face it, is anyone going to write on the internet, “My lawyer was the greatest, he plead down my ‘Molesting a Dead Hose’ and ‘Sailormongering’ charge to misdemeanor assault.  I recommend him to similarly-situated Delaware corporations with a large number of furries on the board.”  Second of all, even if we could conduct some surveillance of legal filings, there is still no way to know the context in which they emerged.  At best, we would only see what the judge sees, and judges (contrary to what they say when the speak at Bar Associations) are but only one player in game of law and there might be a darn good reason why they leave out some authority. 

ERISA standards of review getting Supreme play

Since at least 50% of my readers are interested in ERISA matters (the other two read the blog for its snark), I figure that it is worth nothing that the issue of the proper standard of review for a “conflicted” ERISA administrator is getting some play with the Solicitor General and the SCOTUSblog.  You can read a case which talks about this issue in Denmark v. Liberty Life, No. 05-2877 (our coverage here).  Actually, the "insurance" category of this blog has a bunch of stuff on this issue.

CA1: Kimbrough does not matter for career offender issues

US v. Jimenez, No. 06-1553.  Good news!  Judge Selya paid special attention to this appeal!  Of course, "special attention" means "send his clerks to find obscure words and dramatic phrases and affirm."  For some reason he seems surprised that 1) a defendant made a "confession"; 2) he initially plead not guilty; and 3) he later "revised" his plea to guilty. 

The First has its first opportunity to address Kimbrough v. United States, ___ S. Ct. ___, ___ (2007), but it says it does not effectively matter in an argument over whether someone is a career offender.  So, y'all might want to read on!  For god, country, and billable hours.

CA1: Pagan extends to all defendants

Pagan v. Calderon, No. 07-1046.  The earlier version of this case was Pagán v. Calderón, 448 F.3d 16, 37 (1st Cir. 2006) (our coverage here) .  The First says, "Given the holding in Pagán, dismissal on remand by the District Court of appellant ARCAM Pharmaceutical Corporation’s (“ARCAM”) claims was inevitable."    The First says that its earlier decision applies to the other defendants. 

Besides the substantive claims, there is some discussion of what constitutes "dicta."  But, of course, we know that a Court of Appeals will consider whatever it wants to be dicta. 

CA1: More Fourth-amendment lite

US v. Woodbury, No. 06-2586.  In this challenge to a no-knock warrant, the First affirms over particularity and probable cause challenges.  Of course they include some rhetoric about how important the Fourth Amendment is, but it is hard to take it seriously. 

As to probable cause, the First finds a way to affirm because "the link between Woodbury's drug trafficking and his place of residence could reasonably have been inferred from the facts" even though there was a facial discrepancy in the warrant. 

The government made a mistake as to the unit number of the apartment.  But, the First says it comes within the Leon exception, and therefore anyone else in the building, because they happened to live next to a drug dealer has a lesser expectations of privacy, but says that Leon doesn't really matter because the warrant specified the defendant's apartment which would have been good enough.  He wishes to make clear that if the officers had really made a mistake as to an apartment number Leon might apply. 

The search warrant included a picture of the house, and a description of the location (and how it might be a unit within the house). 

CA1: other Indonesian Christian sister not that oppressed

Lumanauw v. Mukasey,  No. 07-1308 (unpublished).  This is an asylum petition by the sister of Lumanauw v. Mukasey, No. 07-1307 (1st Cir. Dec. 7, 2007 (our coverage here).  Unlike the earlier claim, this one wasn’t time-barred.  Apparently someone threaten the petitioner over the phone, or rather told the current petitioner that they would harm her (other) sister.  The First says that 1) this is really a custody dispute; and 2) the threats were not really directed at the instant petitioner. 

CA1: First defers to cops on “nervousness”

US v. Taylor, No. 06-2687.  This is a felon-in-possession case.  At issue is a “brief investigatory  stop” of the kind conducted upon poor people with criminal records.  The cops came up with some cop-talk about how the defendant appeared nervous (most of this seems like boilerplate).  The First says that there wasn’t a Terry stop until the defendants were ordered to exit the parked vehicle, and as a matter of law, approaching a parked car isn’t a Terry stop "unless it was objectively reasonable for that person to believe that he was compelled to stay and answer the question."  Right?  So does everyone “objectively reasonably believe” that if the cops come up to you [in an unmarked car] when you are in a parked car you can just leave?  (Yet another reason why people should always have lawyers with them at all times.)

It defers to the District Court’s crediting of the cop’s testimony that they first encountered the defendant’s car because of a “crowd [of poor people] gathering.”

CA1: Some records involving ex-mental patient records can be traded like baseball cards

US v. Smith, No. 06-2247.  When the defendant sought to buy a gun, he falsely stated on an ATF Form 4473 that he had never been committed to a mental hospital (or “funny farm” as people say in polite society).  After a conditional guilty plea he argued that the records that the government sought to use to show that he had been involuntarily committed to an asylum were protected from disclosure and the District court should have suppressed because Me. Rev. Stat. Ann. tit. 34-B, § 1207(1) reads “...all orders of commitment, medical and administrative records, application and reports, and facts contained in them ‘as confidential records’” and a state cop reviewed the computer records that “document[ed]the Bangor Police Department's transport of Smith to Acadia Hospital.”  Since the police department that did the transporting, unlike the loony bin is not covered by the statutory definition, the cop did nothing wrong. 

Read on.  For Santa. 

Decision of the Day lays out the Christmas Spirit for defendants

In the 4^th, 5^th and 10^th Circuits, defendants won on 4^th amendment and speedy trial act grounds. But you need to go to that blog to find out why.