Appellate Law & Practice

CA1: Breaking news. First Affirms “Survivor” conviction

US v. Hatch, No. 06-1902.  Okay, this is the appeal of that guy that won “Survivor” and didn’t pay taxes on his winnings.  He was convicted of three counts of filing false tax returns, in violation of 26 U.S.C. §§ 7201 and 7206(1).  He signed a contract which said that he would pay all taxes on his winning in this stupid show.  He later made some other money by appearing on some pilots of even stupider TV shows. 

Anyway, stepping back from the stupidity of popular culture, let’s take a look at the live issues.

He wanted to argue that the procedures of the show were cheating and feeding the contestants.  The producers, he claims, in exchange for his silence on the issue, promised to pay his taxes and therefore under Cheek v. United States, 498 U.S. 192 (1991) he wasn’t willfully failing to pay his taxes.  But, nobody actually testified to such a promise, and it doesn’t seem like he was actually prevented from offering such testimony, though the actual rulings that the District Court made in the heat of the trial seemed to come fast and furious during direct, so maybe someone misunderstand what doors were open to what testimony.

The First also says that the “expert” testimony of IRS agents was error.  But the First says that they were really “fact” witnesses.  The First says that objections were either waived or not plain error. 

The District Court has precluded certain testimony from the defendant’s accountant, but these seem to be on relevance grounds. 

On the other side, he argued that the District Court improperly imposed limits on his cross.  The First bashes counsel by saying that some of the proposed questions were “incoherent.”  The First also says that his cross-examination just wasn’t restricted. 

And, for all the sentencing buffs out there: a perjury enhancement was proper, even though he was acquitted of a perjury count.  The First says the issue (like the amount of loss) isn’t developed.

CA1: anti-gay parents that don’t like gay people lose establishment clause challenge

Parker v. Town of Lexington, No. 07-1528.  I was going to call this breaking news, but it isn’t.  A bunch of parents are angry that “[T]hey must be given prior notice by the school and the opportunity to exempt their young children from exposure to books they find religiously repugnant.”  And by “religiously repugnant” they mean “contains neutral or friendly references” to gay people.  Or, in the words of the court, “Both families assert that they are devout Judeo-Christians and that a core belief of their religion is that homosexual behavior and gay marriage are immoral and violate God's law.”  (I think not being a lawyer violates god’s law, but you don’t see me suing people for that.)

You can read on.   Of course, these are the same people that want to make all the kids say "Under God" in school.

CA1: First reverses conviction in “honest services” legislature case

US v. Urciuoli, Nos. 07-1297, 07-1327.  This case vacates the convictions of conspiracy to commit "honest services" mail fraud and various counts of such mail fraud; 18 U.S.C. §§ 371, 1341, 1346 (2000) in a legislator-bribery scheme.  What makes this interesting is the Rhode Island has a part-time legislature.  The legislators have day jobs.

This is a very big case for anyone working an "honest services" case.  There are a lot of them out there.

So, when they start wearing two hats, you need to read on to find out more.

CA11: government wins Snipes motions

Just in case you 1) care; and 2) don’t know, the 11^th Circuit rejected all of Wesley Snipes’ pretrial motions (e.g. for a change of venue), on a motion from the government to dismiss as an “impermissible interlocutory appeal.”

CA1: American Airlines wins on issue of whether it can remove someone from a plane

Cerqueira v. American Airlines, 07-1824.  The plaintiff alleged that he was removed from an airplane because of his race (or, from the captain’s perspective, an “odd exchange.”)  He sued and won a jury verdict (including punitive damages) under 42 U.S.C. § 1981.  The airline claimed that it could kick people off under 49 U.S.C. § 44902(b) when it decides that some suspicious looking non-white person ("... is, or might be, inimical to safety.").   No jury instruction was given on 49 U.S.C. § 44902(b) (or of the pilot’s discretion under 14 C.F.R. § 91.3(a)), and the First decides that AA would have won if it was given.  The First notes that this really is not constitutional in nature. 

Odds are you are not a member of the mile high club, so read on.

CA1: Army loses conscientious objector case from Copt Doc

Hanna v. Secretary of the Army, No. 07-1090.  This is a petition of an Army Doctor that was denied conscientious objector status.  The petitioner sought habeas relief.  The District Court granted it.  The First finds agrees because the Department of the Army Conscientious Objector Review Board ("DACORB")’s decision was without basis in fact.

If you love America, you will keep reading!!!

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.

Why not more about the Second Circuit’s censorship?

I am somewhat surprised to see that there has not been too much blogosopheric coverage of the Second Circuit’s failed attempt to redact details of Higazy v. Millenium Hotel and Resorts, in which the government conceded that an FBI agent coerced a false confession from the plaintiff.  At a minimum, the Second's Actions would seem to raise many First Amendment issues.  I can't seem to find anything on VC.

Truth be told, many Americans think that coerced confessions (true or false) are a good thing. They think that it is is “activist” to require the exclusion of such confessions from jury trials, thinking that a jury can determine for itself whether a confession is true or not. Some would even go so far as to hold that details of how a confession is extracted are inadmissible if the government says that it doesn’t want a jury to know them. Moreover, in a “national security” context, a false confession might serve a useful purpose. (Obviously the actual useful purpose of a false confession would be secret, but that isn’t the point.)

But why are not more First Amendment types angry about the Second Circuit’s redaction and subsequent fruitless phone call to Howard Bashman who has become a hero of the First Amendment by posting the full decision? Doesn’t the public have an interested in knowing the methods used to extract confessions (true or false) from individuals?  “Wait A Second” speculates the Second Circuit’s behavior is a "Everything is different after 9/11” approach. Under this approach Arabs that hate America have been deemed to modify our constitution via violent acts. Is this what happened?  It gets worse: the Second Circuit, itself has held that even in civil trials there is a First Amendment right to discovery materials that serve are necessary to the judicial process.  The Second uses the concept of a "judicial document" (which is different than a "judicial record") to describe documents that are subject to disclosure U.S. v. Amodeo, 44 F.3d 141 (2d Cir. 1995).  It wote:

While we think that it is proper for a district court, after weighing competing interests, to edit and redact a judicial document in order to allow access to appropriate portions of the document, we consider it improper for the district court to delegate its authority to do so. It is not apparent here whether the district court merely accepted the representations of the Court Officer with regard to the matters claimed to be inappropriate for release or made its own determination. What is clear is that the court released Exhibit A exactly as edited and redacted by the Court Officer and without making any written findings of its own.

It seems to us that the district court should make its own redactions, supported by specific findings, after a careful review of all claims for and against access. See In re New York Times Co. , 834 F.2d 1152, 1154 (2d Cir. 1987), cert . denied , 485 U.S. 977 (1988).  Such findings would provide us with a basis for effective review in the event of a future appeal.  See Press- Enterprise Co. v. Superior Court , 464 U.S. 501, 510 (1984).  The findings may be sealed to the extent that their articulation reveals information that should not be disclosed.  United States v. Haller , 837 F.2d 84, 88 (2d Cir. 1988).

So, there you have it.  Fact-finding is needed in the Second Circuit when the underlying document is at relevant to the judicial process.  Any assertion of a privilege by the government must be supported by facts and factual findings.  This didn't happen.  In fact, Mr. Bashman told ABA Journal that the Second offered no good reason for the redactions.  In fact, the statements were not even made by the government, but rather by the plaintiff.  Bashman wrote:

No one from the 2nd Circuit has attempted to explain to me the so-called security concerns--which as far as I can tell based on my own analysis apparently arise from certain statements attributed to Mr. Higazy in the opinion's factual recitation--that led the 2nd Circuit to remove the opinion from its Web site after the opinion had been posted there for all to see and access.

Now, in notes attached to the redaction, the Second seems to say that the defendant (a government employee) coerced a confession.  Does that mean that it is no longer relevant to the judicial proceedings?  Doubtful.  Since this matter will be headed back to the District Court, the government’s concession on the confession will be relevant to, at the very least, determining damages.  Likewise, the Second Circuit, in determining that the government employee was not entitled to qualified immunity seems to have actually used the government employee’s behavior as a means to determine that he wasn’t entitled to qualified immunity. But, maybe I am wrong.  Maybe there is some justification for this.  The Second doesn’t give it.  The Second’s failed attempt at suppression of the facts seems to indicate that they think they must accept the government’s assertions about what is or is not a judicial document at face value.   [An alert reader has suggested that the government could be trying to argue not a “law enforcement privilege” but an “orderly conduct of foreign relations” privilege.  However, no such evidentiary privilege exists.]

But, maybe the constitution should be changed by the Americans that are empowered to amend to (as opposed to Arabs that violently killed people on 9/11).  Who knows?  Maybe the public will agree with the government: confessions extracted under coercion serve a useful purpose. Maybe the constitution will be amended to suit the government’s needs.  After all coerced confessions do the following: 1) instill respect for the law; 2) separate people of high moral character (that won’t confess under torture) from people of low moral character; 3) might result in information about other people; 4) provide a useful outlet for the frustration of people that would otherwise be bullies that now work for “law enforcement”; 5) allow the listener to create reality, as they are no more “true or false” than the observer is willing to believe in the first place (I don’t know why so-called conservatives don’t take up the banner of post-modernism); and 6) such confessions do not result in any real harm to the republic if a non-American is abused.

For a related story, see our coverage of the DOJ's rationale for not taping confessions, which is, essentially that juries might not like the methods we use to extract them.  Or, in their words, juries should not see or hear the confessions (or judge their propriety) because, in the DOJ's words, “Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants."

Okay, here is the Blog Coverage:

• Patterico's Pontifications ("Was a Passage Omitted from a Recent Second Circuit Opinion for “Security” Reasons — Or to Cover Up Material Embarrassing to the FBI?")
• Psychsound ("A tale of two decisions (or, how the FBI gets you to confess")
• ABA Journal
• Legal Blog Watch
• Public Eye
• Kevin Drum
• Tony Mauro
• Unqualified Offerings
• Free Constitution
• Another Panacea
• Second Hand Conjecture (who argues that because this is at summary judgment, we should not view this as a cover-up).

More coverage of Torres-Negron v. J & N Records

Remember when we covered Torres-Negron v. J & N Records, Nos. 06-2058, 06-2059 (10/2/07)?  That was cool, wasn’t it?  We busted out with commentary within minutes of its release.

There, the First Circuit held (with unnecessary dicta that further confuses the discussion of jurisdiction) that a “reconstruction” of a work is not sufficient for registration.

Personally, I don’t think it is right to use the internet to make money, and I think that the practice of “promoting oneself” via the internet is a little creepy.  I know it is "all the rage" to have a Myspace page, but just because teenagers are doing it doesn't mean that mature individuals like you and I should do it, too. 

Remember the good old days when lawyers would exchange ideas over the internet and via blogs and have fun doing it?   Sure, we didn't have RSS feeds.  Sure, we couldn't cite them in motions.  But we had spirit.  Also, people on "Friendster" were considered a little strange.

Remember when it didn’t take two weeks or so for partners to approve blog postings to make sure that the clients wouldn’t freak out and puke all over the place?  Of course, in those days, if you had a blog, you would be too “hip” for a certain set of clients.  These days, everyone has a blog.  Hurumph! 
Anyway, without further ado, here is some other coverage of this case.  Apparently, in the world of “IP” (which I know nothing about) it is very important.  In law school I deliberately avoided taking IP courses, because everyone claimed to be very interested in the subject and so I knew that they were lying.  Well, actually, that was a bit more ado than I planned.

Oh my god.  I have used up so much ado, that you have to look under the fold.  Sorry about that.

CA1: On sentencing, The First Circuit goes deep into the record and comes up with parsimony and standards of review

US v. Cirilo-Munoz, No. 05-2469.  The earlier opinion is here, and our coverage is here.  As DotD points out here, this case shows just how divided judges are about what Booker and its progeny really direct Courts of Appeal to do. These appeals arise from the fact that the actual perpetrator – a policeman turned assassin turned cooperator – received a longer sentence then this defendant.  The facts read like Puerto Rican gangster novel.  Only they are more chilling.  The application of the guidelines was such at the District Court judge could not find a way to reduce his sentence.

Judge Torruella explains the role of a court of appeals as:

Thus, I see our role in determining the validity of a sentence whose reasonableness is questioned as one requiring analysis of the sentence and the reasons given by the sentencing court in reaching its conclusions, tested against the record of the case to determine whether the reasoning is supported by the record, and ultimately, whether the sentence is reasonable [in light of the 3553(a) factors and whether it is "sufficient but not greater than necessary" to comply with the basic aims listed in § 3553(a)(2)].

Torruella then explains how this sentence, based on the facts, fails on all accounts.  He puts considerable effort into this, going though the entire record, and then citing a number of law review articles. 

Lipez says that the opinion is “superb” but thinks that the District Judge was too vague.  Lipez also goes deep into the record. 

I don’t think that any summary can do this case justice, and everyone is just going to have to read the puppy.  I don’t feel bad telling you to do this.  It is obvious that the court put a lot of time into it, and therefore, you should to.