Appellate Law & Practice

Outline of CA2 Post-Booker sentencing stuff

SL&P points to the Second Circuit Sentencing Blog, which has an outline of Post-Booker stuff in the Second Circuit. 

CA2: constitutional right of access for DNA testing

Since the First isn’t doing anything, the Blogosphere (and alert readers) are bussing about the Second Circuit’s decision in McKithen v. Brown, No. 03-0168 (2d Cir. Mar. 13, 2007).  There, the Second Circuit holds that a 42 U.S.C § 1983 action that seeks a “constitutional right of DNA access” for a convict cannot simply be thrown out on Rooker-Feldman  or Heck v. Humphrey grounds.  Moreover, the District Court can’t raise that defense sua sponte (the District Court judge sure likes to see people in jail, it seems), but instead the District Court judge (Gleeson)  has to figure out what the parameters of the constitutional right of access for DNA testing is first.  For more info, see HA, DotD and SL&P.

Update: look below the fold for some, “analysis," as they kids are calling it.

2d Circuit asylum/sterilization Oral Argument Bleg

Can someone that was present at the Second Circuit's en banc oral arguments in Lin et al v. Gonzales give us a clue as to what happened at oral arguments? The en banc order specified the issue as dealing with: 

... whether the [Immigration] Code's definition of "refugee" as amended by IIRIRA § 601(a) (codified at 8 U.S.C. § 1101(a)(42)) encompasses a petitioner whose asylum claim is based upon a relationship with an individual who has been forced to abort a pregnancy or undergo involuntary sterilization.

You can either leave a comment, or send me an email, and I will post it, without revealing your secret identity, if you would like.  I know that there has to be one of you out there. 

Thanks, and live long and prosper.

When Judges file briefs (KPMG)

As predicted, KPMG would become a major appellate morass.  There is a long discussion of mandamus standards, which if you have not read by now, you are not a real appellate lawyer.  According to the Tax Prof Blog: The latest twist in the KPMG tax shelter saga: 

Federal District Judge Kaplan on Monday filed a 47-page brief in the Second Circuit defending his decision last summer to hold a separate civil proceeding to determine whether KPMG should pay the indicted 16 former KPMG partners' legal fees.

Our earlier converage of KPMG here.  Among other things, Judge Kaplin determined that because the government had worked with KPMG and Skadden to hinder the defendants Sixth Amendment rights, he would open a civil docket, and let a civil case proceed in order to enforce an agreement between KPMG and its employees that would pay their attorneys fees.  In this brief, Judge Kaplin explains the use of ancillary jurisdiction as follows:

As the Supreme Court wrote in Kokkonen v. Guardian Life Insurance Co., a district court may assert ancillary jurisdiction “to enable [it] to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” In consequence, the exercise of ancillary jurisdiction, even where it requires the addition of a party, is appropriate where (1) the ancillary dispute arises directly out of events that occurred in the criminal case, (2) its resolution is important to the fair and proper resolution of the criminal charges on the merits, and (3) determination of the ancillary dispute would not substantially predominate over or otherwise
interfere materially with the determination of the criminal charges.

It concludes that his action were correct because:

...the “non-party” is an unindicted co-conspirator in the indictment and, when the ancillary proceeding began, was a defendant on an identical conspiracy charge pending in the same district court.

WSJ law blog comments here.

CA2: IJ Chase and the magic chair

I realize that have been negligent in pointing out out the condemnations of IJs.  This time, the 2d Circuit singles out Jeffrey Chase in Huang v. Gonzales, 04-1032 (2nd Cir., June 29, 2006).  (Tnx DoTD).  The 2d concludes that his credibility determinations were “flawed.”  The IJ, in the name of the US, went out of his way to really insult Mr. Huang.  Strangely, the BIA piled on to the insults.

The entire opinion is, well, sad, but it starts to get positively wacky in the text I quote below the fold.

What was the judge thinking?

The defendant takes chooses to testify.  During jury instructions, the District Court Judge, Naomi Reice Buchwald, says:

Obviously, the defendant has a deep personal interest in the result of his prosecution.  This interest creates a motive for false testimony and, therefore, the defendant’s  testimony should be scrutinized and weighed with care.

Then, despite that language she notes that he might not be lying. US v. Gaines,  No. 045616p (2d Cir. July 20, 2006).  To the governments credit, they don’t seem to have put up much of a fight on this issue, and the second vacates and remands.  Tnx Second Opinions. 

Another Immigration Judge Gets Reprimanded

Is the title of a post at DotD regarding Huang v. Gonzales04-1032 (2nd Cir., June 29, 2006).  This time it is  Immigration Judge Jeffrey Chase.

CA2: Quattrone Conviction Overturned

See WhiteCollarCrimeProf Blog for an extensive discussion or the opinion.  Also see the Second Circuit Sentencing Blog.  The opinion includes a direction to reassign the case to another judge.

CA2: Government can’t kick Scheindlin for ruling in its favor

Joanne Mariner points out  that the Second Circuit refused to reassign United States v. Awadallah to a judge other than Shira Scheindlin. Apparantly, the government thought that Judge Scheindlin was raising too many issues sua esponte (then ruling in favor of the government) and took a clue from Fox news (according to Mariner) and tried to have her booted. I can’t believe that the government even made this argument.  They knew they were going to lose.  Anyway, as predicted, the Second says their argument is crap.   

But, maybe there is something to be gained. Maybe it will become the normal procedure for criminal defendants to seek interlocutory review or mandamus when they think the judge is biased against them. The government seems to think that this is acceptable.

CA2 (1.5.06): Dodging a Dodgy Precedent

Mastrovincenzo v. City of New York, No. 04-2264 (Cabranes, Korman (EDNY); Sack (dissenting in part)). This is an example of a panel dealing with precedent it finds less-than-satisfactory. Plaintiffs sell clothing painted with graffiti. They sough to sell their clothing on the streets of New York. Such activity is governed by New York City’s General Vendors Law, which requires, among other things, that vendors obtain a license from the city. Plaintiffs tried to get a license, and were denied (there are over 8000 names on the waiting list for such licenses).

They sued, alleging that the licensing scheme violated their First Amendment rights as artists and a permanent injunction in an earlier case, Bery v. City of New York.

In Bery, a group of artists selling paintings, photos and sculptures sought a preliminary injunction “prohibiting the enforcement against them of the . . . General Vendors Law . . . on the grounds that the application of the ordinance to their activities violate[d] their rights to freedom of expression and equal protection of the laws under the First and Fourteenth Amendments to the Constitution.”  Bery, 906 F. Supp. 163, 165 (S.D.N.Y. 1995). The district court denied their motion for a preliminary injunction, but the Second Circuit Reversed. See Bery, 97 F.3d 689 (2d Cir. 1996). After finding the sale of artwork “expressive conduct”, the Bery Court applied the First Amendment doctrine that governs content-neutral “time, place, and manner” restrictions and held that the Bery plaintiffs could likely demonstrate that New York City’s licensing requirement was not “‘narrowly tailored to serve a significant governmental interest’” and did not “‘leave[ ] open ample alternative channels for communication.’”  Id. at 697.

Following the Second Circuit’s decision in Bery, New York City consented to a permanent injunction (the “Bery injunction”) prohibiting it from “enforcing [N.Y.C.] Admin. Code § 20-453 against any person who hawks, peddles, sells, leases or offers to sell or lease, at retail, any paintings, photographs, prints and/or sculpture, either exclusively or in conjunction with newspapers, periodicals, books, pamphlets or other similar written matter, in a public space[.]”

In the instant case, the District Court held that as applied to plaintiffs, the licensing scheme violated their First Amendment rights and, alternatively, also violated the Bery injunction. The City appealed, and the Second Circuit reverses.

In the part of the majority opinion joined by Judge Sack (which appears to be technically dicta), the Court spends many paragraphs explaining that while Bery might have said that the sale of “art” is automatically “expressive”, plaintiffs cannot obtain enhanced scrutiny of regulations on the sale of utilitarian items by trying to prove that those items are, in some sense of the word, “art”. Rather, the Court says, courts must determine whether the asserted expressive purpose is “dominant”. In this case, however, the Court holds that the graffiti-clothing of the plaintiffs does have a dominant expressive purpose.

In the part of the opinion from which Judge Sack dissents, the Court reverses the grant of a preliminary injunction by holding that as applied to these plaintiffs, the licensing requirement is narrowly tailored to advance a significant government interest and leaves open ample alternative channels for communication. Addressing the tension between its decision and Bery, the Court states that “[t]he types of wares at issue here, whose dominant purpose is not clearly expressive, present line-drawing questions markedly distinct from the more-easily-classified “paintings, photographs, prints and/or sculpture” at issue in Bery, and we are therefore persuaded that the ‘least restrictive or least intrusive means of [achieving the stated governmental interest],’ . . . in this context is likely to be more burdensome than it would be with respect to the traditional art forms at issue in Bery.” The Court also reverses as to the Bery injunction, holding, as a matter of contract-style interpretation, that graffiti-clothing was not encompassed by the word “painting” in the Bery injunction.

Judge Sack believes that the majority overstepped in concluding that the regulation survives intermediate scrutiny and in interpreting the Bery injunction as a matter of law. Judge Sack “see[s] nearly nothing in the record, and too little in the majority opinion, to convince me that the ordinance at issue here, as applied to these plaintiffs, is ‘reasonable’ as a matter of law.” In addition, Judge Sack would interpret the Bery injunction to cover plaintiff’s graffiti clothing.