Appellate Law & Practice

CA1 (12.29.04)

US v. Barbour, No. 03-1229. Pretty simple appeal from a conviction under 21 U.S.C. §§ 846 and 841. Convict raises four arguments, all are rejected.

He also appears to have raised a Blakely argument, which was rejected on plain error grounds.

CA9 (12.30.04)

Three published opinions today from the ninth circuit.

In U.S. v. Gordon, the court held that the district court abused its discretion in awarding prejudgment interest for certain embezzled securities. The embezzler is a Stanford law grad, noted by the court in it's clever introduction:

This case presents the disappointing story of a promising federal appellate law clerk gone bad. Robert Gordon, a graduate of Stanford Law School and a former law clerk for one of our colleagues, a judge on the U.S. Court of Appeals for the Seventh Circuit, embezzled millions of dollars in cash and stock from his employer, Cisco Systems.

Article about the Gordon case here.

In U.S. v. Bad Marriage, the court the district court's upward departure based on a determination that Mr. Bad Marriage's criminal record did not accurately reflect the seriousness of his past criminal history and the likelihood of him committing other crimes. Bad Marriage's contention was that his criminal history, though extensive, did not warrant upward departure under U.S.S.G. Section 4A1.3. The court noted in the opinion that although Blakely may invalidate the upward departure on 6th amendment grounds, its holding was confined to the scope of 4A1.3.

In Marshall v. Marshall, the court held that all federal courts, including bankruptcy courts, are bound by the probate exception (fed court required to refrain from deciding state law probate matters) to federal court jurisdiction. More interesting, perhaps, is that Vickie Lynn Marshall is actually Anna Nicole Smith. (thanks to Howard for the pointer)

Article about the Marshall case here.

CA2 (12.30.04)

The New York Law Journal has this piece on the Second Circuit's decision to rehear Muntaqim v. Coombe en banc.

I realize that readers from other circuits may not understand my unhealthy obsession with this case.  Muntaqim is of particular interest because (a) the same issue is currently sub judice before the en banc 11th Circuit, and (b) the en banc Second Circuit split 5-5 on this exact same issue in 1996, in Baker v. Pataki. 

You also have to understand that the CA2 takes cases en banc with alarming infrequency.  In the nine years since Baker was decided, the CA2 has taken a grand total of eight cases en banc -- one other in '96, one in each of '97, '98 and '99, none in 2000, two in 2001, none in 2002, one in 2003, and one other in 2004.  In contrast, the Ninth Circuit 's website indicates that it has already taken 19 cases en banc this year.  So you can see where the excitement comes from.

The dynamics of Muntaqim are also interesting:  for example, Judge Cabranes, who wrote the panel decision in Muntaqim, was recused in Baker (as was Judge Calabresi).  Judge Meskill voted one way in Baker and the other way in Muntaqim, and the other four judges who argued in Baker that the plaintiff had a valid Voting Rights Act claim (Judges Feinberg, Newman, Kearse, and Fred Parker) will not be part of the en banc.  Two of the five judges on the other side of Baker (Chief Judge Walker and Judge Jacobs, who were joined by Judges Mahoney, Miner and McLaughlin), meanwhile, are still around.  Thus, before the case is heard, I presume that there are five votes (of a 15-member en banc court) solidly in favor of adhering to the Muntaqim panel's decision -- Chief Judge Walker, Judge Jacobs, and the three panelists, Judges Cabranes, Meskill, and Cardamone. 

On the other hand, we know that Judges Calabresi, Sotomayor, Parker, Straub, Pooler, Sack, and Katzmann voted for en banc rehearing.  Given the CA2's usual reluctance to take cases en banc, I presume that they are at least leaning in the opposite direction.  (Judge Jacobs also voted to rehear the case, but specifically noted his support for the panel decision).

That makes the "known" vote 5-7, with judges Wesley, Hall and Raggi unaccounted for.  My amateur court-watching leads me to predict that Judges Wesley and Hall will side with the court's other conservatives, making Judge Raggi the deciding vote.  Guess we know who to watch on April 7.

No asylum for paramour

Yesterday in Zhang v. Ashcroft, the Fifth Circuit denied a stay of deportation to a male Chinese citzen, rejecting his request for asylum. Zhang claimed entitlement to asylum because the Chinese government fined his girlfriend and forced her to have an abortion. Zhang's problem was that he never married his girlfriend. The INS limits statutory relief for refugees seeking asylum from another country's coercive population-control program to spouses. The Fifth Circuit deferred to the INS's determination, and noted that Zhang "exhibited no legally cognizable 'resistance' to China’s population control program — merely impregnating one’s girlfriend is not alone an act of 'resistance.'"

Illegitimate non-discriminatory reasons

This one got past me when it first came out on Dec. 15 (revised yesterday), but it's important enough to write up even though two weeks old. In Patrick v. Ridge, an employment-discrimination case, the Fifth Circuit holds that an employer's two proffered reasons for an adverse employment decision were not legitimate.

The plaintiff, Clara Patrick, was passed over for a promotion, and filed an age-discrimination suit. Her employer proffered two reasons for not promoting Patrick: (1) She was "not sufficiently suited" for the new position, and (2) the person who got the position that Patrick sought was the best-qualified candidate. The Fifth Circuit held that under the facts of this case, neither proffered reason was legitimate.

Reason # 1: The employee was "not sufficiently suited" for the position. While a subjective reason might be legitimate if articulated with sufficient clarity, the employer here failed to articulate why Patrick was "not sufficiently suited" for the position.

This does not mean that an employer may not rely on subjective reasons for its personnel decisions. It does mean, though, that to rebut an employee’s prima facie case, a defendant employer must articulate in some detail a more specific reason than its own vague and conclusional feeling about the employee....

If the INS believed —— and had verbalized —— that Patrick was not "sufficiently suited" to fill the SRS position because of her experience, credentials, attitude, or some other such articulable characteristic, the agency’s reason might have provided enough detail to enable Patrick to attempt to show pretext. In the face of the INS’s bald and amorphous statement that Patrick simply was "not sufficiently suited," however, neither we nor Patrick can identify the kind of evidence needed to demonstrate that such a rank generalization is or is not pretextual.

Reason # 2: Another candidate was better qualified. The problem with this reason was that the employer did not interview the other candidate until it had already decided not to promote Patrick. "We hold as a matter of law that an employer who offers the relative qualifications of the applicants as its legitimate, nondiscriminatory reason must show that, at the time it made the decision adverse to the complaining applicant, it already knew that the ultimately selected individual’s qualifications were superior."

CA1 (12.29.04)

The Trust Fund Recovery Penalty

Lubetzky v. US, No. 01-2357. Few published opinions exist regarding the trust fund recovery penalty (that is, a hefty penalty imposed on employers for not paying over all that stuff they take out of your paycheck). The interesting part about this penalty, is that it can be imposed on the employer, or personally on “’[a]ny person’ who was ‘required’ but ‘willfully’ failed to pay over the withheld taxes. I.R.C. § 6672 (2000); Slodov v. United States, 436 U.S. 238, 250 (1978). Mr. Luberzky was found personally liable after a jury trial. As the court points out the statute is ambiguous (at best) as to exactly who can be held liable.

CA2 (12.29.04)

In an interesting case concerning the criminal forfeiture statute, 21 U.S.C. § 853, the CA2 today apparently became the first court to explicitly hold that "partial forfeitures" of real property are permitted.  That is, a criminal defendant can forfeit less than an entire tract of land.  In this case, a husband and wife jointly owned a home.  The government claimed that the propery was forfeited by virtue of the husband's criminal behavior.  A third party, meanwhile, claimed that the property was hers because she bought it at a foreclosure sale (after husband and wife defaulted on their mortgage and after husband had been indicted).  Thus, the property was "subject to two claims of ownership."  The court held that the husband could only be made to forfeit his interest in the property, and that the bank had validly foreclosed on the wife's interest.  "Although partial forfeitures may occasionally make for strange bedfellows -- such as making the government co-owners of real property with the spouse of a criminal defendant -- the alternative could give the government an undeserved windfall and deny an innocent third party her valid property interest."

In the same decision, the court also clarified the appropriate legal standard for a motion to dismiss a third-party petition asserting a claim to forfeited property.  Under Fed. R. Crim. P. 32.2, according to the court, such a motion is treated identically to a Fed. R. Civ. P. 12(b) motion to dismiss.  (The case is United States v. Serendensky.  Actually, I'm not sure that that's the correct caption -- that's the name of the underlying criminal/forfeiture action, not the third-party petition.  Can anyone in the know help out on this one?).

In another fairly interesting case, the court also decided Brown v. City of South Burlington, Vermont, concerning Vermont contract law.  The district court granted summary judgment in favor of the defendants in an action brought by a firefighter, formerly employed by the defendant City, to recover damages under provisions of the False Claims Act, the First Amendment, and Vermont State law.   The District Court determined that Brown’s repudiation of a release of all claims given prior to the commencement of the action was barred by his failure to tender back in a timely release.  The CA2, holding that the length of time that has passed is but one factor to be considered in assessing the timeliness of Brown's repudiation, vacated and remanded.  It also ennumerated certain other factors (e.g., prejudice to the defendants) for the court to consider on remand.

Plus, the court issued an amended en banc order in Muntaqim v. Coombe.  As best as I can tell, the only difference between this version and the one filed on 12/23/04 is the addition of the phrase, "While the briefing schedule of the parties is to be strictly observed, extensions of the time to file amicus briefs will be considered on a case-by-case basis."

UPDATE:  For what it's worth, the proper caption -- or at least the CA2's "authorized abbreviated caption" -- for today's first case is United States v. Foti.  Foti was apparently one of the husband's co-defendants.

CA2 (12.28.04)

One new opinion.  In Mungo v. Duncan, the court affirmed a denial of habeas.  The court rejected petitioner's argument that the state court had improperly and prejudicially admitted certain hearsay testimony from his murder victim, holding that "the state court’s admission of hearsay under the excited utterance exception was not an unreasonable application of clearly established Supreme Court law with respect to the Confrontation Clause of the Sixth Amendment to the United States Constitution."  More importantly, the court went on to hold that Mungo was "barred by the doctrine of Teague v. Lane

, from invoking the Supreme Court’s subsequent reinterpretation of the Confrontation Clause in Crawford v. Washington."  (Citations omitted).  Teague, you may recall, bars petitioners from asserting new procedural rules to challenge convictions that became final before the new rule was announced, unless the new rule was a "watershed" rule.  The CA2 held that Crawford did not announce such a rule, and that the Teague bar on retroactivity therefore applied.  The only other circuit to have considered the question, the Tenth, reached the same result earlier this year in Brown v. Uphoff.

UPDATE:  The New York Law Journal ran a story covering the Mungo decision on 1.4.05.

Also, the court finally made available its order granting rehearing en banc in Muntaqim v. Coombe.  Although the order is dated (and was apparently filed on) December 23, it wasn't released until today.

Finally, the folks over at the White Collar Crime Prof Blog have collected the briefs to the CA2 in Martha Stewart's appeal.  Martha's blue brief is here, the government's brief is here, and Martha's reply brief is here.  Warning, some of these briefs are very long and boring.

Two opinions from yesterday.  In Filsaime v. Ashcroft, the court held that "the preclusion provision of 8 U.S.C § 1252(d)(2) . . . serves to limit the jurisdiction of the federal courts over habeas petitions seeking review of immigration decisions."  Section 1252(d)(2) provides that a district court may review a final order of removal only if "another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order."  Because it was not clear whether Filsaime's petition fit into that exception, the court remanded.

And in Veltri v. Building Service 32B-J Pension Fund, a two-judge panel of the court affirmed the district court's grant of summary judgment in this ERISA case.  The court agreed that Veltri's claim was not time-barred, and that the Pension Fund could not ignore certain of his years of service for pension calculation purposes.

$174,429 Appeal Bond Correctly Imposed

The Sixth Circuit affirmed the imposition of an appeal bond in the amount of $174,429.00 on a litigant who wished to appeal the denial of her challenge to the settlement of a nation-wide class action.  Reasoning that, in diversity actions,  Federal Rule of Appellate Procedure 7 incorporates provisions for damages arising from state law, including Tennessee's provision for the award of "any damages incurred, including reasonable attorney’s fees and costs" arising from frivolous litigation, the circuit found the district court did not err.  See In re Cardizem CD Antitrust Litigation, Nos. 03-2514/2635. 

Are Rule 60(b) Motions "Second or Successive" Habeas Petitions Barred by the AEDPA?

The Sixth Circuit has re-weighed in on the question of where Rule 60(b) motions fall in the AEDPA framework, overruling its previous order in this area, McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996).

In rejecting that "rigid" approach, the Sixth Circuit agreed with the First Circuit:

The [district] court must examine the factual predicate set forth in support of a particular motion. When the motion’s factual predicate deals primarily with the constitutionality of the underlying state [or federal] conviction or sentence, then the motion should be treated as a second or successive habeas petition. This situation should be distinguished from one in which the motion’s factual predicate deals primarily with some irregularity or procedural defect in the procurement of the judgment denying habeas relief. That is the classic function of a Rule 60(b) motion, and such a motion should be treated within the usual confines of Rule 60(b).

Rodwell v. Pepe, 324 F.3d 66, 70 (1st Cir. 2003).  Id. at 71. It is only when a petitioner presents a direct challenge to the constitutionality of the underlying conviction that the petition should be treated as a second or successive habeas petition.

This approach is functional in nature. Whether a motion will be treated as one pursuant to Rule 60(b) or as a second or successive habeas petition will depend not on the label affixed to the motion, but on its substance.

But if there is no such direct challenge and the petitioner instead challenges the integrity of the district court opinion for one of the reasons provided in Rule 60(b), then the district court must treat the motion as one pursuant to Rule 60(b).

In re Abdur’Rahman, Nos. 02-6547/6548.  Judge Boggs has already had opportunity to apply this holding.  See Alley v. Bell, No. 04-5596.