Appellate Law & Practice

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.”

CA11 doesn’t mind it when people are forced to masturbate

a female prison guard’s solicitation of a male prisoner’s manual masturbation, even under the threat of reprisal, does not present more than de minimis injury.

Boxer v. Harris, and they deny rehearing en banc.  This means that such behavior is as acceptable as a jostling on the subway.  I guess this means that this is the new norm of behavior for society.  C&F comments here, and links to lots of posts, including one on Overlawyered, which, while not taking a position on the case, has lots of comments from people who think this is really freakin’ hilarious!  I guess this shows the importance of confirming judges to the courts who will think that people should take responsibility for their actions, and not clog the  dockets with such frivolous cases as rape and forced masturbation. 

CA11: Tax Court should stop putzing around with Ballard

The TaxProfBlog discusses g a 3-page order from the Eleventh Circuit to the Tax Court telling the Tax Court to give Ballard top priority.  See our coverage of this case here.

Judge Pryor's first dissent

You can read it here.

11th holds that 18 U.S.C. § 2252A(a)(3)(B) is facially unconstitutional.

here  -- The statute obviously involves promoting child pr0n, and the court writes:

There is a great description of people accusing each other of being cops in a chat room.  Despite the fact that a few parapgrahs of the opinion disturb my view of the first amendment as protecting human destiny (though it acknowledges my view), it is rather well-written, traces the development of the PROTECT ACT, and contains these choice words:

In this case, however, the law does not seek to attach liability to the materials, but to the ideas and images communicated to the viewer by those materials. This shifts the focus from a community standard to the perverted but privately held belief that materials are lascivious. Through this lens, virtually all depictions of children, whom to pedophiles are highly eroticized sexual objects, are likely to draw a deviant response. Many pedophiles collect and are sexually stimulated by nonpornographic depictions of children such as commercially produced images of children in clothing catalogs, television, cinema, newspapers, and magazines — otherwise innocent pictures that are not traditionally seen as child pornography and which non-pedophiles consider innocuous. As illustrated in this case, relatively innocent candid snapshots of children, such as those initially exchanged by the defendant Williams and the undercover agent, are also collected and used as a medium of exchange. We cannot, however, outlaw those legal and mainstream materials and we may not outlaw the thoughts conjured up by those legal materials.

There is some Booker stuff in there, too.

Here's something you don't see often

A district court from the Eleventh Circuit being reversed in a habeas case. Kudos to court-appointed counsel! :)

CA11: Dildos okay in GA

Or at least advertising them. The court in This That and the Other Gift and Tobacco v. Prewett addresses a number of procedural issues (e.g. law of the case doctrine and standards for reviewing injunctions). Essentially:

Because a prior panel in this case has already determined that § 16-12-80 unconstitutionally infringes upon the plaintiffs’ First Amendment rights, we remand this case to the district court to enter summary judgment in favor of the plaintiffs. Because we are bound by the law-of-the-case doctrine, we need not consider whether the type of limiting construction the district court gave to § 16-12-80 is a proper construction of that state statute.

Thanks: Majikthise

CA11: Booker remands and allocution

The Defense Newsletter Blog points to  U.S. v. Stevenson, No. 05-14504 (Jan. 17, 2006) (unpub.) which holds that a Booker remand requires a hearing.  The court concludes, “Because Stevenson’s original sentence was vacated in its entirety, the district court erred by not granting him a hearing and affording him the opportunity to allocute at resentencing.“

CA11: Ballard keeps on runnin'

SCOTUSBlog provides coverage of the 11^th Circuit’s decision on remand in Ballard.

the Eleventh Circuit on Wednesday ordered three U.S. Tax Court judges to have nothing further to do with a pending case, demanded a new assignment of the case, and brusquely ordered the entire 19-judge Tax Court to "adhere strictly hereafter" to its own rules.

Of course, it remains to be seen if the other courts of appeal will follow the 11th Circuit’s lead.

CA11: 11th declines to strike language regarding “obey the law” injunctions

According to Securities Litigation Watch, The SEC's petition for rehearing was denied in  SEC v. Smyth, 04-11985 which questioned whether the SEC could seek injunctions against violating the law.  See our earlier coverage here.  This obviously has great import beyond securities law.  Perhaps people that represent poor folks will take heart from the 11^th (and other circuit's) positions on this.

See also TheCorporateCounsel.net