Split Circuits

D. Mass Notes Split Re Constitutionality of Adam Walsh Act

noreply@blogger.com (A. Benjamin Spencer) — Wed, 09 Dec 2009 18:59:43 PST

Per U.S. v. Wilkinson, 646 F.Supp.2d 194 (D. Mass.,2009. Aug. 20, 2009):

The court also addressed Wilkinson's claim that the Adam Walsh Act is unconstitutional. In June, 2009, the court held that the Adam Walsh Act is unconstitutional because it exceeds Congress' power under the Commerce Clause of the United States constitution and is not necessary or proper to effectuate any other enumerated legislative or executive power. See United States v. Wilkinson (“Wilkinson II”), 626 F.Supp.2d 184, 185-86 (D.Mass.2009). This is an issue that has split the district courts and several circuits that have decided it. Id. at 186-87. The Supreme Court will hear a case which should decide this issue in the coming term. See United States v. Comstock, 551 F.3d 274 (4th Cir.2009), aff'g 507 F.Supp.2d 522, 540 (E.D.N.C.2007), cert. granted --- U.S. ----, 129 S.Ct. 2828, 174 L.Ed.2d 551 (2009). In view of the uncertainty of the law and the risk that Wilkinson might be found to be sexually dangerous, the court stayed his release from federal custody, at least until the merit of the government's request for civil commitment was decided. Wilkinson II, 626 F.Supp.2d at 195.

W.D. La. Notes Split Re Fees Awardable under 42 U.S.C. § 406(b)

noreply@blogger.com (A. Benjamin Spencer) — Sat, 31 Oct 2009 18:22:37 PDT

Per Raposa v. U.S. Com'r Social Sec. Admin. Slip Copy, 2009 WL 3460433 (W.D. La. Oct. 22, 2009):

David Raposa (“Plaintiff”) commenced this civil action to appeal the Commissioner's denial of disability benefits. This court entered a judgment that reversed and remanded the case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Soon afterward, the court granted Plaintiff's motion for fees under the Equal Access to Justice Act (“EAJA”) and awarded $3,618.75.

. . .

With respect to the substance of the motion, Plaintiff signed a contingency fee agreement to pay 25% of any past due benefits awarded. That agreement may provide the amount of the Section 406(b) award so long as the amount is reasonable under the facts of the case. Gisbrecht v. Barnhart, 122 S.Ct. 1817, 1828 (2002). In the Fifth Circuit, Section 406(b) is construed to limit the combined amount of attorney fees awarded by the agency under Section 406(a) and by the court under Section 406(b) to a total of 25% of the past due benefits. Dawson v. Finch, 425 F.2d 1192 (5th Cir.1970). ^FN1 Thus, the court must take into consideration any amount awarded by the agency.

FN1. There is a circuit split on this issue, with some courts holding that a court may award an amount equal to 25% of past due benefits, irrespective of any amount awarded by the agency under Section 406(a). See Clark v. Astrue, 529 F.3d 1211 (9th Cir.2008) (describing the split).

Court of Federal Claims Notes Split Re Culpability Needed for Spoliation Finding

noreply@blogger.com (A. Benjamin Spencer) — Tue, 27 Oct 2009 07:16:02 PDT

Per Consolidated Edison Co. of New York, Inc. & Subsidiaries v. U.S. --- Fed.Cl. ----, 2009 WL 3418533 (Fed. Cl. Oct. 21, 2009):

The relevant circuit for this court, the United States Court of Appeals for the Federal Circuit, has not definitively addressed whether a finding of bad faith is required before a court can find spoliation or impose an adverse inference or other sanction. Because many of the spoliation cases decided to date by the Federal Circuit have been patent cases in which the Federal Circuit applies the law of the relevant regional circuit, the Federal Circuit has not had the opportunity to announce a position binding on this court as to a possible “bad faith” or other standard to trigger a spoliation of evidence sanction. See United Med. Supply Co. v. United States, 77 Fed. Cl. at 266. Consequently, judges of the United States Court of Federal Claims have taken differing positions on the “bad faith” requirement. Compare, id. at 268 (“[A]n injured party need not demonstrate bad faith in order for the court to impose, under its inherent authority, spoliation sanctions.”), with Columbia First Bank, FSB v. United States, 54 Fed. Cl. 693, 703 (2002) (noting findings of bad faith are required before the court can determine that there was spoliation). While fully discussing the issues raised by a spoliation claim in the United Medical Supply case, a judge of this court discussed how the circuits are also split on this issue, with their views covering a broad spectrum. United Med. Supply Co. v. United States, 77 Fed. Cl. at 266 (and cases cited therein).

Ninth Circuit Creates Split Re Meaning of "Actual Damages" in 11 U.S.C. s. 362(k)(1)

noreply@blogger.com (A. Benjamin Spencer) — Fri, 23 Oct 2009 06:34:23 PDT

Per Sternberg v. Johnston, --- F.3d ----, 2009 WL 3381162 (9th Cir. Oct. 22, 2009):

Sternberg also argues that the bankruptcy court erred in calculating Johnston's damages because it awarded attorney fees not only for the work associated with remedying the stay violation but also for the subsequent adversary proceeding in which Johnston sought to collect damages for the stay violation. We agree. . . . The relevant statute, 11 U.S.C. § 362(k)(1), states that “an individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages.” . . .

[W]e conclude that the plain meaning of “actual damages” points to a different result. The dictionary defines “actual damages” as “[a]n amount awarded ... to compensate for a proven injury or loss; damages that repay actual losses.” BLACK'S LAW DICTIONARY 416 (8th ed.2004). Following this definition, the proven injury is the injury resulting from the stay violation itself. Once the violation has ended, any fees the debtor incurs after that point in pursuit of a damage award would not be to compensate for “actual damages” under § 362(k)(1).

We recognize that the Fifth Circuit appears to have held to the contrary: “The lower courts in our Circuit have concluded that it is proper to award attorney's fees that were incurred prosecuting a section 362(k) claim [,]” and “[w]e adopt the same reading of section 362(k) and therefore agree.” Young v. Repine (In re Repine), 536 F.3d 512, 522 (5th Cir.2008). We do not create a circuit split lightly. But the above-quoted language is all the court said on the issue. Without more, we are hard-pressed to find this decision persuasive.

Sixth Circuit Notes Split Re Interpretation of Speedy Trial Act

noreply@blogger.com (A. Benjamin Spencer) — Tue, 13 Oct 2009 11:03:10 PDT

Per U.S. v. Tinklenberg, 579 F.3d 589 (6th Cir. Sept. 3, 2009):

Of more substance is Tinklenberg's argument that the Speedy Trial Act limits to ten days the time excludable for the transportation of a defendant to and from the location of his competency evaluation. Although 18 U.S.C. § 3161(h)(1)(A) appears to exclude all time during which a defendant's competency evaluation and determination is pending, § 3161(h)(1)(F) provides that any delay caused by the transportation of a defendant “to and from places of examination or hospitalization” that is longer than ten days is “presumed to be unreasonable.” Whether the ten day limit in § 3161(h)(1)(F) applies to the time in which a defendant is transported to a place of examination pursuant to a court's competency evaluation order appears to be a matter of first impression for this Court. The few other appellate courts to have ruled on the issue are split: the First and Fifth Circuits have held that an unreasonable delay in the transportation of the defendant for a competency determination is not excludable, see United States v. Noone, 913 F.2d 20, 25-26 (1st Cir.1990) and United States v. Castle, 906 F.2d 134, 137 (5th Cir.1990), while the Second Circuit has held that any delay associated with a competency evaluation from the date of the order directing the evaluation until completion of the competency hearing, including delay from transporting a defendant for the evaluation, is excludable under § 3161(h)(1)(A), see United States v. Vasquez, 918 F.2d 329, 333 (2d Cir.1990).

E.D. Tex. Magistrate Notes Split Re Whether Magistrate's May Rule on Motions to Remand

noreply@blogger.com (A. Benjamin Spencer) — Tue, 06 Oct 2009 09:01:56 PDT

Per Doucet v. State Farm Fire and Cas. Co., Slip Copy, 2009 WL 3157478 (E.D. Tex. Sept. 25, 2009):

A threshold question is whether a motion to remand is a pretrial matter not dispositive of a party's claim or defense that magistrate judges may hear and decide pursuant to 28 U.S.C. § 636(b)(1)(A) or (3).

Lower courts are split on this question,^FN1 and there is no definitive ruling from the governing United States Court of Appeals for the Fifth Circuit. But, in a recent case, the Fifth Circuit voiced no objection to a magistrate judge's ruling on a remand motion when the presiding district judge considered the aggrieved party's objection.^FN2 Since the parties here will have an opportunity to secure district-judge review of any perceived errors or defects in the order,^FN3 the undersigned elects to decide the motion rather than issue a more cumbersome recommendation for its disposition.

FN1. Compare Saxon v. Thomas, No. 06-2339, 2007 WL 1974914, at *2 (W.D. La. June 29, 2007), Robinson v. Cheetah Transp., No. Civ. A. 06-0005, 2006 WL 1453036, at *1 (W.D.La. May 17, 2006), Vaquillas Ranch Co. v. Texaco Exploration & Prod., Inc., 844 F.Supp. 1156, 1160-63 (S.D.Tex.1994), and City of Jackson v. Lakeland Lounge of Jackson, Inc., 147 F.R.D. 122, 124 (S.D.Miss.1993) (holding that motions to remand are not dispositive and, consequently, may be referred to a United States magistrate judge for determination), with First Union Mortgage Corp. v. Smith, 229 F.3d 992, 996 (10th Cir.2000), and In re U.S. Healthcare, 159 F.3d 142, 146 (3d Cir.1998) (both holding that inasmuch as remand orders banish litigants from federal court, they are equivalent to final decisions or dispositive actions that must ultimately be performed by a district judge).

Sixth Circuit Notes Split Re Whether RLUIPA Authorizes Suits for Damages against State Officials in Individual Capacity

noreply@blogger.com (A. Benjamin Spencer) — Mon, 31 Aug 2009 03:23:54 PDT

Per Heard v. Caruso, Slip Copy, 2009 WL 2628293 (6th Cir. Aug. 27, 2009):

With respect to Heard's RLUIPA [Religious Land Use and Institutionalized Persons Act] claim against defendants in their official capacities, Heard may seek only declaratory or injunctive relief and not monetary relief. See Cardinal v. Metrish, 564 F.3d 794, 798-801 (6th Cir.2009) (holding that the doctrine of sovereign immunity bars the recovery of monetary damages under RLUIPA when state officials are sued in their official capacities). This court has not ruled, however, on whether RLUIPA authorizes suits for monetary damages against state officials in their individual capacities. See Nelson v. Miller, 570 F.3d 868, 885-89 (7th Cir.2009) (discussing split of authority on issue; holding that RLUIPA does not subject state officials to suit in their individual capacities). Because the parties have not briefed this issue and because we are remanding to the district court for further consideration of whether a Nation-of-Islam diet meets MDOC nutritional standards, we decline to decide this issue at this time.

D. Mass. Notes Split Re Constitutionality of the Adam Walsh Act

noreply@blogger.com (A. Benjamin Spencer) — Wed, 26 Aug 2009 04:11:21 PDT

Per U.S. v. Wilkinson, --- F.Supp.2d ----, 2009 WL 2591157 (D. Mass. Aug. 20, 2009):

The court also addressed Wilkinson's claim that the Adam Walsh Act is unconstitutional. In June, 2009, the court held that the Adam Walsh Act is unconstitutional because it exceeds Congress' power under the Commerce Clause of the United States constitution and is not necessary or proper to effectuate any other enumerated legislative or executive power. See United States v. Wilkinson (“Wilkinson II”), --- F.Supp.2d ----, 2009 WL 1740358, at *1 (D.Mass. Jun. 22, 2009). This is an issue that has split the district courts and several circuits that have decided it. Id. at *2. The Supreme Court will hear a case which should decide this issue in the coming term. See United States v. Comstock, 551 F.3d 274 (4th Cir.2009), aff'g 507 F.Supp.2d 522, 540 (E.D.N.C.2007), cert. granted 129 S.Ct. 2828 (2009).

Eleventh Circuit NOtes Split Re INA Sec. 212(c) Interpretation

noreply@blogger.com (A. Benjamin Spencer) — Fri, 21 Aug 2009 04:06:04 PDT

Per De La Rosa v. U.S. Attorney General, --- F.3d ----, 2009 WL 2527296 (11th Cir. Aug. 20, 2009):

As it stands, there exists a three-way circuit split on the question of whether certain deportees who have not temporarily left the country are eligible for [Immigration and Naturalization Act] § 212(c) relief. The BIA and the majority of our sister circuits have adopted the Francis v. INS, 532 F.2d 268, 272 (2d Cir.1976) rule and have applied the categorical approach when dealing with the resulting statutory counterpart test.^FN11

FN11. See, e.g., Gonzalez-Mesias v. Mukasey, 529 F.3d 62, 64-65 (1st Cir.2008); Caroleo v. Gonzales, 476 F.3d 158, 162-63 (3d Cir.2007); Vo v. Gonzales, 482 F.3d 363, 372 (5th Cir.2007); Koussan v. Holder, 556 F.3d 403, 412-13 (6th Cir.2009); Valere v. Gonzales, 473 F.3d 757, 762 (7th Cir.2007); Soriano v. Gonzales, 489 F.3d 909 (8th Cir.2006) (per curiam).

D. Maryland Notes Split Re Whether Public Employees Can Be Held Liable in their Individual Capacities for FMLA Violations

noreply@blogger.com (A. Benjamin Spencer) — Wed, 19 Aug 2009 07:37:28 PDT

Per Sadowski v. U.S. Postal Service, --- F.Supp.2d ----, 2009 WL 2496282 (D. Md. Aug. 17, 2009):

The precise issue raised in the pending motion is whether or not public employees, such as Defendant Walls and Edward Weche, can be held liable in their individual capacities for violations of the Family and Medical Leave Act (“FMLA”). This is an issue previously addressed by this Court thirteen years ago, which now requires a more detailed analysis in light of subsequent case law. See Knussman v. State of Md., 935 F.Supp. 659, 664 (D.Md.1996). Resolution of this strictly legal question centers on the FMLA's definition of “employer,” which is contained in 29 U.S.C. § 2611(4)(A).

There is no directly applicable case law from either the Supreme Court or the United States Court of Appeals for the Fourth Circuit on the issue presented herein. There is also a nationwide split of decisional authority on this issue at both the appellate and trial levels, and the parties have agreed that the “courts are in some disarray over this issue.” In fact, not only is there a split of authority among the circuit courts of appeal, but the district courts within the Fourth Circuit are also split. Indeed, this Court's opinion in this case is at variance with an opinion it issued thirteen years ago. See Knussman, 935 F.Supp. at 664.

On the one hand, the Sixth and Eleventh Circuits have concluded that public employees cannot be held individually liable under the FMLA. See Mitchell v. Chapman, 343 F.3d 811 (6th Cir.2003), cert denied, 542 U.S. 937 (2004); Wascura v. Carver, 169 F.3d 683 (11th Cir.1999). . . . On the other hand, however, the Fifth and Eighth Circuits have adopted the opposing position, concluding that public employees may be held individually liable under the FMLA. See Modica v. Taylor, 465 F.3d 174 (5th Cir.2006); Darby v. Bratch, 287 F.3d 673 (8th Cir.2002).

. . .

This Court finds convincing the reasoning given in Mitchell v. Chapman, 343 F.3d 811 (6th Cir.2003) and Keene v. Rinaldi, 127 F.Supp.2d 770 (M.D.N.C 2000), and therefore concludes that the language of the FMLA prohibits public employees from being found individually liable.

Eighth Circuit Notes Split Re Whether a Defendant Can Appeal the Adequacy of a Factual Basis after Entering an Unconditional Guilty Plea

noreply@blogger.com (A. Benjamin Spencer) — Sun, 09 Aug 2009 21:02:00 PDT

Per U.S. v. Cheney, 571 F.3d 764 (8th Cir. July 8, 2009):

Although Holland limited his appeal waiver to exclude a challenge to the factual basis for his plea, he did not enter a conditional guilty plea in accordance with the procedure of Federal Rule of Criminal Procedure 11(a)(2). The law is unsettled about whether a defendant can appeal the adequacy of a factual basis after entering an unconditional guilty plea. In United States v. Beck, 250 F.3d 1163, 1165 (8th Cir.2001), we held that a defendant, by entering a guilty plea that was not conditional, waived his right to appeal the sufficiency of the factual basis for one element of the offense of conviction, but in United States v. Marks, 38 F.3d 1009, 1012-13 (8th Cir.1994), we reviewed the adequacy of a factual basis under Rule 11 despite an unconditional guilty plea. Other circuits appear to be divided on the question. Compare, e.g., United States v. Lacey, 569 F.3d 319, 323 (7th Cir.2009) (reviewing adequacy of factual basis), United States v. Baymon, 312 F.3d 725, 727-28 (5th Cir.2002) (same), and United States v. McKelvey, 203 F.3d 66, 69-70 (1st Cir.2000) (same), with United States v. Johnson, 89 F.3d 778, 784 (11 th Cir.1996) (holding that right to challenge factual basis is waived by guilty plea), United States v. Willis, 992 F.2d 489, 490 (4th Cir.1993) (same), and United States v. Freed, 688 F.2d 24, 25-26 (6th Cir.1982) (same).

We need not decide this point of law, because the government does not contend that Holland's guilty plea bars him from challenging the factual basis for his plea-in effect, waiving any claim to rely on a possible waiver by Holland. See United States v. Jacobo Castillo, 496 F.3d 947, 954 (9th Cir.2007) (en banc). Therefore, we proceed to consider the sufficiency of the factual basis for Holland's plea. See Fed.R.Crim.P. 11(b)(3).

Sixth Circuit Notes Split Re Whether Guidelines Range Is Mandatory in a 3582 Procedding

noreply@blogger.com (A. Benjamin Spencer) — Fri, 07 Aug 2009 07:01:49 PDT

Per U.S. v. Quinn, --- F.3d ----, 2009 WL 2391856 (6th Cir. Aug. 6, 2009):

But Quinn did not ask the district court to grant him a downward variance and has not argued on appeal that the district court should have-or could have-varied below the properly calculated Guidelines range. In fact, Quinn explicitly stated that “the only relief [he] seeks is a full 2 level reduction in his crack sentence pursuant to Amendment 706,” and contrasts his request with the arguments of defendants in other cases who requested outside-Guidelines sentences at the modification stage. The government's arguments regarding the somewhat murky interplay between the Booker line of Supreme Court cases and 18 U.S.C. § 3582(c)(2) are therefore only tangentially relevant to this case. Compare U.S.S.G. § 1B1.10(b)(2) (prohibiting district courts, when modifying pre- Booker sentencing determinations, from using 18 U.S.C. § 3582(c)(2) to reduce a term of imprisonment below the bottom of the recalculated Guidelines range), and United States v. Rhodes, 549 F.3d 833 (10th Cir.2008) (holding that district courts lack authority to impose a sentence that falls below the amended Guidelines range in a sentence-modification proceeding) with United States v. Johnson, 553 F.3d 990, 992 (6th Cir.2009) (making note of a district court's authority to “reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines” (citing Spears v. United States, 129 S.Ct. 840 (2009))), and United States v. Hicks, 472 F.3d 1167 (9th Cir .2007) (holding that a newly calculated Guidelines range in a sentence-modification proceeding is advisory). We thus note that a circuit split exists on the question of whether a Guidelines range is mandatory in a sentence-modification proceeding under § 3582(c)(2), but decline to resolve the issue in this case because Quinn has not requested a downward variance.

Eleventh Circuit Notes Split Re Standard of Review for a District Court's Denial of a Franks Hearing

noreply@blogger.com (A. Benjamin Spencer) — Fri, 24 Jul 2009 04:25:05 PDT

Per U.S. v. Sarras, --- F.3d ----, 2009 WL 2176643 (11th Cir. July 23, 2009):

Generally, a court's decision about whether to hold an evidentiary hearing lies within that court's sound discretion and will be reviewed only for an abuse of discretion. We have not stated a precise standard of review for a district court's denial of a Franks hearing, and other circuits are split on the issue.” United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir.2006) (internal citations omitted) (concluding that “[because] ... the more exacting de novo standard of review is satisfied here, we need not address the issue further.” (quotation marks omitted)). As in Arbolaez, we need not decide which standard of review to apply, as we discern no error under even a de novo standard of review.

Seventh Circuit Notes Split Re Whether Verbal Complaints Are Protected Activity under the FLSA

noreply@blogger.com (A. Benjamin Spencer) — Tue, 30 Jun 2009 05:55:16 PDT

Per Kasten v. Saint-Gobain Performance Plastics Corp., --- F.3d ----, 2009 WL 1838291 (7th Cir. June 29, 2009):

The next question pertinent to this appeal is whether unwritten, purely verbal complaints are protected activity under the statute.

Again, we start with the language of the statute. Sapperstein, 188 F.3d at 857. The FLSA's retaliation provision prohibits “discharg[ing] ... any employee because such employee has filed any complaint....” 29 U.S.C. § 215(a)(3) (emphasis added). . . . Looking only at the language of the statute, we believe that the district court correctly concluded that unwritten, purely verbal complaints are not protected activity. The use of the verb “to file” connotes the use of a writing.

. . .

Other circuit courts that have tackled this issue are split. The Fourth Circuit found that verbal complaints were not protected activity in Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360, 364 (4th Cir.2000). The court recognized that the FLSA's “statutory language clearly places limits on the range of retaliation proscribed by the act.” Specifically, in interpreting the “testimony” clause of the FLSA's retaliation provision, the Fourth Circuit held that the FLSA “prohibits retaliation for testimony given or about to be given but not for an employee's voicing of a position on working conditions in opposition to an employer.” Id. (emphasis added). Although the Fourth Circuit acknowledged that the retaliation in that case-which followed an employee's statement to the company president that, if he were deposed in a lawsuit, he would not testify to the president's suggested version of events-was “morally unacceptable,” the court concluded that a faithful interpretation of the statute did not recognize mere statements to a supervisor as a protected activity. Id.; see also Lambert v. Genesee Hospital, 10 F.3d 46, 55 (2d Cir.1993) (“The plain language of this provision limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.”) (citations omitted).

Other courts have found oral complaints to be protected activity, but it is difficult to draw guidance from these decisions because many of them do not specifically state whether the complaint in question was written or purely verbal, and none discusses the statute's use of the verb “to file” and whether it requires a writing. See EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992) (holding, without discussion of the verbal/written distinction, that plaintiff's apparently oral complaints to supervisors were protected activity); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (holding, without discussion of the verbal/written distinction, that plaintiffs' oral complaints were protected activity); Brock v. Richardson, 812 F.2d 121, 125 (8th Cir.1987) (holding, without discussion of the verbal/written distinction, that defendant's mistaken belief that plaintiff had made apparently oral complaints to supervisors was grounds for suit); Brennan v. Maxey's Yamaha, 513 F.2d 179, 183 (8th Cir.1975) (holding, without discussion of the verbal/written distinction, that employee's “voicing” of concern was protected activity).

Eleventh Circuit Notes Split Re Standard of Review for a District Court's Denial of a Franks Hearing

noreply@blogger.com (A. Benjamin Spencer) — Wed, 17 Jun 2009 03:36:28 PDT

Per U.S. v. Sarras, --- F.3d ----, 2009 WL 1661152 (11th Cir. June 16, 2009):

Sarras moved to suppress the evidence seized from his Tweed residence, alleging that (1) Ortiz's affidavit contained deliberate and material falsehoods and omissions and (2) a Franks hearing was required.^FN5FN5. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676 (1978) (instructing that where a defendant makes a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in [a] warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request”).

. . .

Sarras contends that the district court abused its discretion by denying his motion to suppress evidence without first conducting a Franks hearing.^FN37FN37. “Generally, a court's decision about whether to hold an evidentiary hearing lies within that court's sound discretion and will be reviewed only for an abuse of discretion. We have not stated a precise standard of review for a district court's denial of a Franks hearing, and other circuits are split on the issue.” United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir.2006) (internal citations omitted) (concluding that “[because] ... the more exacting de novo standard of review is satisfied here, we need not address the issue further.” (quotation marks omitted)). As in Arbolaez, we need not decide which standard of review to apply, as we discern no error under even a de novo standard of review. See United States v. Kapordelis, No. 07-14499, 2009 WL 1508342, at *19-20 (11th Cir. June 1, 2009) (same).

Fourth Circuit Concludes that § 2515 Does not Permit a Clean Hands Exception to Its Exclusionary Rule

noreply@blogger.com (A. Benjamin Spencer) — Tue, 16 Jun 2009 03:25:56 PDT

Per U.S. v. Crabtree, 565 F.3d 887 (4th Cir. May 19, 2009):

Whether § 2515 should be understood as containing a “clean hands” exception to its exclusionary rule is an issue that has divided the circuits. The Sixth Circuit has concluded that § 2515 does not preclude the government in a criminal prosecution from introducing evidence of a recording made in violation of Title III if the government had no involvement in the illegal interception, see United States v. Murdock, 63 F.3d 1391, 1404 (6th Cir.1995), while the First, Third, and Ninth Circuits have refused to read such a clean-hands exception into § 2515, see Chandler v. United States Army, 125 F.3d 1296, 1302 (9th Cir.1997); In re Grand Jury, 111 F.3d 1066, 1079 (3d Cir.1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir.1987). We agree with the majority and conclude that § 2515 does not permit an exception to its exclusionary rule in cases where the government was not involved in illegal interception.

In our view, the issue is resolved by the language of § 2515 itself. Section 2515 states, in its entirety, that

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

18 U.S.C.A. § 2515. The statute seems to clearly and unambiguously prohibit the use in court of improperly intercepted communications; we simply see no gaps or shadows in the language that might leave lurking a clean-hands exception.

M.D. Alabama Notes Split Re whether Eyewitness-Identification Expert Testimony Violates FRE 403

noreply@blogger.com (A. Benjamin Spencer) — Wed, 27 May 2009 07:15:45 PDT

Per U.S. v. Smith, --- F.Supp.2d ----, 2009 WL 1444446 (M.D.Ala. May 26, 2009)

The Eleventh Circuit has not had occasion to address whether eyewitness-identification expert testimony would violate [Federal Evidence] Rule 403, and other circuits have split on this question. The Second, Seventh, and Eighth Circuits have reasoned that eyewitness-identification expert testimony might usurp the jury's role of determining witness credibility, thus causing jurors to be confused and misled regarding their role as the trier of fact. United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999) (holding a district court was within its discretion to exclude an expert who “would effectively have inserted his own view of the officers' credibility for that of the jurors, thereby usurping their role”); United States v. Kime, 99 F.3d 870, 884 (8th Cir.1996) (applying a deferential standard to conclude that “the district court properly recognized the very real danger that the proffered expert testimony could either confuse the jury or cause it to substitute the expert's credibility assessment for its own”); United States v. Curry, 977 F.2d 1042, 1052 (7th Cir.1992) (“the district court's decision to exclude Dr. Loftus' testimony was a proper exercise of its discretion, whether under Rule 702 or Rule 403.”); but cf. United States v. Gallardo, 497 F.3d 727, 733 (7th Cir.2007) (holding that expert testimony on effect of drug abuse on witness memory would “intrude upon the jury's role in assessing witness credibility” only because the defendant had not put forth any evidence to show that the witnesses actually used drugs and that, thus, there was no “factual link” between the expert's testimony and the specific witnesses).

Similarly, in United States v. Rincon, 28 F.3d 921, 923-26 (9th Cir.1994), appellate court affirmed a district court's decision to exclude an eyewitness-identification expert under Rules 403 and 702. The court cautioned, though, that the opinion represents an “individualized inquiry” that “does not preclude the admission of such testimony when the proffering party satisfies the standard established in Daubert by showing that the expert opinion is based upon ‘scientific knowledge’ which is both reliable and helpful to the jury in any given case.” Id. at 926.

In contrast, the Third and Sixth Circuits have ruled that eyewitness-identification expert testimony comports with Rule 403. In United States v. Mathis, 264 F.3d 321, 339-40 (3rd Cir.2001), the court reversed a district court's decision to exclude eyewitness testimony based on Rules 403 and 702. Judge Pollack explained that eyewitness-identification experts who employ “reliable scientific expertise to juridically pertinent aspects of the human mind and body should generally, absent explicable reasons to the contrary, be welcomed by federal courts, not turned away.” Id. at 340. The Sixth Circuit has likewise concluded that a trial court erred in excluding an eyewitness-identification expert under Rule 403, but held that the error was harmless. United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.1984); see also Smithers, 212 F.3d at 316 (finding that eyewitness-identification expert testimony did not violate Rule 403's prohibition against evidence that invites unjustified “delay”).

Eleventh Circuit Notes Split Re Relevance of Subjective Intent to Lability under the National Firearms Act

noreply@blogger.com (A. Benjamin Spencer) — Sun, 24 May 2009 21:01:00 PDT

Per U.S. v. Spoerke, --- F.3d ----, 2009 WL 1423919 (11th Cir. May 22, 2009):

Spoerke asserts that the pipe bombs were intended for social enjoyment, he detonated them only underwater, and he enjoyed the concussion of the device when detonated. Our sister circuits are split over whether the court should consider the subjective intent of the defendant when determining whether the device was designed as a weapon. Compare United States v. Oba, 448 F.2d 892, 894 (9th Cir.1971) (considering the defendant's subjective intent), with United States v. Posnjak, 457 F.2d 1110, 1118-20 (2d Cir.1972) (applying an objective standard to determine whether the device falls within the reach of the Firearms Act), and United States v. Johnson, 152 F.3d 618, 628 (7th Cir.1998) (adopting a mixed standard). Although the district court instructed the jury on the mixed standard, we decline to adopt a standard because the evidence of Spoerke's intent, under any standard, is sufficient to sustain his conviction.

Second Circuit Notes Split Re Sentencing under Criminal Rule 11(c)(1)(C) and Recourse to Resentencing

noreply@blogger.com (A. Benjamin Spencer) — Thu, 16 Apr 2009 21:49:00 PDT

Per U.S. v. Walker, Slip Copy, 2009 WL 983031 (2d Cir. Apr. 14, 2009):

As the Government correctly notes in its 28(j) letter, there is currently a circuit split on the legal issue of whether defendants sentenced under Federal Rule of Criminal Procedure Rule 11(c)(1)(C) plea agreements may ever have recourse to resentencing pursuant to § 3582(c)(2). We need not resolve this issue for our Circuit today, however, because the district court in this case provided sufficient justification for its determination that it would not resentence Walker even if given the opportunity.

Seventh Circuit Notes Split Re When a Copyright Registration Application is Complete

noreply@blogger.com (A. Benjamin Spencer) — Thu, 16 Apr 2009 08:41:29 PDT

Per Brooks-Ngwenya v. Indianapolis Public Schools, --- F.3d ----, 2009 WL 996998 (7th Cir. Apr. 15, 2009):

Compliance with the registration requirements of 17 U.S.C. § 411(a) is not a condition of copyright protection but is a prerequisite to suing for infringement. 17 U.S.C. § 411(a); Automation By Design, Inc. v. Raybestos Prods. Co., 463 F.3d 749, 752 n. 1 (7th Cir.2006). The circuits have split over whether registration is complete when an application is made or only after the Copyright Office has acted on the application. Compare Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir.2006) (application is sufficient), and Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 365 (5th Cir.2004) (same), with Jennette v. United States, 77 Fed.Cl. 126, 131 (2007) (action on application is required); La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1201 (10th Cir.2005) (same); cf. Chicago Board of Education v. Substance, Inc., 354 F.3d 624, 631 (7th Cir.2003) (“an application for registration must be filed before the copyright can be sued upon”).

11th Cir. Notes Split Re Whether Federal Rule of Criminal Procedure 32(i)(1)(A) Requires the District Court to Personally Ask Defendant about PSI

noreply@blogger.com (A. Benjamin Spencer) — Tue, 07 Apr 2009 05:36:00 PDT

Per U.S. v. Martinez, Slip Copy, 2009 WL 839093 (11th Cir. Apr. 1, 2009):

Martinez contends that the district court plainly erred, under Fed.R.Crim.P. 32(i)(1)(A), in failing to personally ask him whether he had read the PSI [presentence investigation report]prior to sentencing. . . . [T]he parties have not cited, and research does not reveal, any binding case law requiring a district court to personally address the defendant to determine whether he read and discussed the PSI with counsel, and other circuits are split on the issue. See United States v. Romero, 491 F.3d 1173, 1179-80 & n. 3 (10th Cir.2007) (noting a circuit split on the issue).

11th Cir. Discusses Split Re Impact of IIRIRA on Section 212(c) of the INA

noreply@blogger.com (A. Benjamin Spencer) — Wed, 01 Apr 2009 07:41:31 PDT

Per Ferguson v. U.S. Attorney General, --- F.3d ----, 2009 WL 824434 (11th Mar. 31, 2009):

INS v. St. Cyr addressed the way that two statutory amendments to the INA-namely, AEDPA and IIRIRA-impacted § 212(c), 8 U.S.C. § 1182(c).

. . .

The circuits are split on how to apply St. Cyr to aliens outside of the guilty plea context. The majority of circuits to address the issue have held that IIRIRA does not have an impermissible retroactive effect on aliens who relied on § 212(c) relief in deciding to go to trial. See Hernandez-Castillo v. Moore, 436 F.3d 516, 520 (5th Cir.2006); Montenegro v. Ashcroft, 355 F.3d 1035, 1036-37 (7th Cir.2004); Rankine v. Reno, 319 F.3d 93, 102 (2d Cir.2003); Chambers v. Reno, 307 F.3d 284, 290-93 (4th Cir.2002); Dias v. INS, 311 F.3d 456, 458 (1st Cir.2002) (“[A]pplication of the new statutory limitations on discretionary relief does not have an impermissible retroactive effect on those aliens who would have been eligible for discretionary relief when they were convicted of a felony after trial.”).

. . .

Although our Court has not squarely decided the retroactivity issue splitting the circuits, we have come close to doing so on two occasions. We have all but said that St. Cyr 's retroactivity analysis does not apply to aliens who were convicted after a trial-as opposed to a guilty plea-and that § 212(c) relief is, therefore, not available to such aliens.

1st Cir. Discusses Split on Issue of Apportionment of Multi-Defendant Settlement Offers to Trigger Rule 68

noreply@blogger.com (A. Benjamin Spencer) — Thu, 26 Mar 2009 05:03:00 PDT

Per King v. Rivas, 555 F.3d 14 (1st Cir. Feb 02, 2009):

The circuit courts have been divided about variations on the central problem. The Seventh Circuit has insisted that to trigger Rule 68 in multi-defendant cases an offer must contain amounts allocated to each defendant, Harbor Motor Co., Inc. v. Arnell Chevrolet-Geo, Inc., 265 F.3d 638, 648-49 (7th Cir.2001); but it did so citing a prior case, Gavoni v. Dobbs House, Inc., 164 F.3d 1071 (7th Cir.1999), involving joint plaintiffs, who present quite different problems; and the result in Harbor Motor was more than justified on a different ground, namely, that the verdict in favor of the co-defendant was being reversed, Harbor Motor, 265 F.3d at 644-45, so the plaintiff's total package could in the end well exceed the package offer.

Similarly, the Fifth Circuit also said the failure to allocate was fatal; but it did so on facts where it was otherwise plainly right to refuse to shift costs because the judgment against the defendant exceeded the offer-when combined with a settlement received from the other. Johnston, 803 F.2d at 870. The apportionment notion was invoked to reach a correct result but one properly reached by saying that the joint offer was less than the total amount actually recovered by the plaintiff.

The Third Circuit, by contrast, approved use of Rule 68 cost shifting where an unapportioned offer had been made that exceeded the amount recovered; it said that the suit against multiple defendants involved joint liability and an indemnification contract, although it is not clear how much this mattered to the court nor why it should matter. Le v. Univ. of Pa., 321 F.3d 403, 408 (3d Cir.2003). And district courts have employed Rule 68 without difficulty in multiple defendant cases where the offer was not apportioned and the total recovery was less than the unapportioned offer.^FN4

. . . .

[W]e agree with the outcomes in the Seventh and Fifth Circuit decisions ( Harbor Motor and Johnston ) because comparability was impossible in the first case and favored the plaintiff in the second, but not the putative rationales adopted by those courts, and we align ourselves with the Third Circuit, save that we do not see why it matters whether liability was joint or several or how the defendants were related: a package offer is simply to be taken on its own terms and compared with the total recovery package.

6th Cir. Reveals Split Re Whether Comity and Federalism Preclude Federal Jurisdiction over State Taxation Claims

noreply@blogger.com (A. Benjamin Spencer) — Mon, 23 Mar 2009 03:35:34 PDT

Per Commerce Energy, Inc. v. Levin, 554 F.3d 1094 (6th Cir. Feb 04, 2009):

Yet there is a circuit split. The district court heavily relied on DIRECTV v. Tolson, 513 F.3d 119 (4th Cir.2008), which, in dismissing a § 1983 claim, rejected the idea that Hibbs did anything to limit an expansive reading of Fair Assessment because the comity principle is “broader than the Act itself, and its scope is not restricted by § 1341.” DIRECTV, 513 F.3d at 127 (citing Fair Assessment, 454 U.S. at 110). To the Fourth Circuit, the comity principle's breadth “was simply not before the Supreme Court in Hibbs.” Id. at 127-28.

Other circuits disagree. The Seventh Circuit, for instance, has reconciled these cases by holding that Fair Assessment cannot bar each and every challenge to a state's taxation scheme because Hibbs “restrict[s] comity to cases that could tie up rightful tax revenue.” Levy v. Pappas, 510 F.3d 755, 761 (7th Cir.2007) (quotations omitted).

. . . .

Similarly, the Ninth Circuit, in Wilbur v. Locke, 423 F.3d 1101 (9th Cir.2005), took at face value Hibbs's admonition that comity principles preclude jurisdiction “only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection” and observed that the plaintiffs before it sought “no such relief.” 423 F.3d at 1110 (quoting Hibbs, 542 U.S. at 107 n. 9, 124 S.Ct. 2276).

Animating these courts' disagreement with the Fourth Circuit are twin concerns. First, a sweeping reading of Fair Assessment runs squarely against Hibbs's instruction that comity guts federal jurisdiction only when plaintiffs try to thwart tax collection. Hibbs, 542 U.S. at 107 n. 9, 124 S.Ct. 2276.^FN4 Second, an unduly broad view of comity would render an Act of Congress-the Tax Injunction Act-effectively superfluous, as its contours would never be dispositive so long as extant “comity principles” uniformly barred challenges to state taxation. In recognizing this, the Hibbs Court warned lower courts that prior cases in this area are “not fairly cut loose from their secure, state-revenue-protective moorings.” Id. at 107, 124 S.Ct. 2276.

SCOTUS Resolves Split Regarding Nature of Required Predicate Offense in the Gun Control Act

noreply@blogger.com (A. Benjamin Spencer) — Tue, 17 Mar 2009 16:07:13 PDT

Last month the Supreme Court issued a ruling in U.S. v. Hayes, 129 S.Ct. 1079 (Feb. 24, 2009), which resolved a split regarding the question of whether 18 U.S.C. § 922(g)(9) requires that the offense predicate to a defendant's firearm possession conviction have as an element a domestic relationship between offender and victim. Here is an excerpt:

The federal Gun Control Act of 1968, 18 U.S.C. § 921 et seq., has long prohibited possession of a firearm by any person convicted of a felony. In 1996, Congress extended the prohibition to include persons convicted of “a misdemeanor crime of domestic violence.” § 922(g)(9). The definition of “misdemeanor crime of domestic violence,” contained in § 921(a)(33)(A), is at issue in this case.

. . .

Asserting that his 1994 West Virginia battery conviction did not qualify as a predicate offense under § 922(g)(9), Hayes moved to dismiss the indictment. Section 922(g)(9), Hayes maintained, applies only to persons previously convicted of an offense that has as an element a domestic relationship between aggressor and victim. The West Virginia statute under which he was convicted in 1994, Hayes observed, was a generic battery proscription, not a law designating a domestic relationship between offender and victim as an element of the offense. The United States District Court for the Northern District of West Virginia rejected Hayes's argument and denied his motion to dismiss the indictment. 377 F.Supp.2d 540, 541-542 (2005). Hayes then entered a conditional guilty plea and appealed.

In a 2-to-1 decision, the United States Court of Appeals for the Fourth Circuit reversed. A § 922(g)(9) predicate offense, the Court of Appeals held, must “have as an element a domestic relationship between the offender and the victim.” 482 F.3d 749, 751 (2007). In so ruling, the Fourth Circuit created a split between itself and the nine other Courts of Appeals that had previously published opinions deciding the same question. According to those courts, § 922(g)(9) does not require that the offense predicate to the defendant's firearm possession conviction have as an element a domestic relationship between offender and victim. We granted certiorari, *1084 552 U.S. ----, 128 S.Ct. 1702, 170 L.Ed.2d 512 (2008), to resolve this conflict.

. . .

Most sensibly read, then, § 921(a)(33)(A) defines “misdemeanor crime of domestic violence” as a misdemeanor offense that (1) “has, as an element, the use [of force],” and (2) is committed by a person who has a specified domestic relationship with the victim. To obtain a conviction in a § 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant's current or former spouse or was related to the defendant in another specified way. But that relationship, while it must be established, need not be denominated an element of the predicate offense.