Tag Archives: Watch

Third Circuit vacates an opinion it published last week

In a terse order entered late this afternoon, the Third Circuit vacated the published opinion and judgment it entered on December 30 in U.S. v. Mateo-Medina. Today’s order was signed by the clerk and simply says it was entered “[a]t the direction of the Court.”

In the over two and a half years I’ve done this blog, this is the first time I’ve seen the court pull back a published opinion like this. So, this is not a normal development.

A commenter to my original post, PhilFan, offered this take:

Perhaps the panel/author published the opinion before the requisite number of full court review days passed?? Or perhaps someone miscounted and there are enough votes for rehearing??

Maybe so. But, offhand, I doubt that the first possibility, alone, would result in vacatur, and I think the second possibility would result in a different order.

Another possibility is that, after further reflection, the panel decided that there was a problem with the original decision that was serious enough to impact which side wins and clear enough not to see if the government sought rehearing.

We’ll just have to wait to see what the court does next. Among its options, it could call for additional briefing, set the appeal for oral argument (the original opinion was issued without argument), or issue a new panel opinion.

If the court wouldn’t have let you present it, it’s not something you could reasonably have presented

The Third Circuit issued a non-precedential opinion in US v. Scott yesterday, affirming denial of a post-conviction challenge to a criminal conviction, and, respectfully, I think it’s wrong.

From the opinion (I’ve omitted most cites and footnotes from these quotes):

[Scott] argues that the trial court erred in not allowing him to withdraw his plea. This argument relies on Scott’s belief that he withdrew the plea before it was formally accepted by the trial court. Because Scott believes he withdrew the plea before it was accepted, he argues that, under Federal Rule of Criminal Procedure 11, he should have been allowed to withdraw it “for any reason or no reason.” Scott also believes that he is not estopped from bringing this claim because Martino’s testimony constitutes new evidence, obtained after direct appeal, which resolves the factual issue of when he moved to withdraw the plea.

Here’s the controlling rule:

Generally, a § 2255 proceeding may not be used to relitigate questions that were raised and considered on direct appeal.  We have held, however, that relitigation may be allowed for “newly discovered evidence that could not reasonably have been presented at the original [appeal]”

Here’s the issue:

On direct appeal, Scott argued that the trial court abused its discretion because it accepted the plea after Scott requested to withdraw it. In support of this assertion, Scott cited transcript excerpts of the August 15, 2008 on-the-record conference. The statements made at this conference, however, did not support his asserted timeline of events—rather, they depict the trial court as accepting the plea before Scott’s counsel makes any comments regarding withdrawal. Given this record, we concluded that there was no basis to conclude that the trial court erred in accepting the plea.

Now, Scott argues that relitigation is appropriate because he presents new evidence discovered after his direct appeal—namely, [trial counsel] Martino’s testimony regarding the off-the-record conference in which Martino made an oral motion to withdraw the plea. Scott argues that this new evidence provides the factual predicate for his plea-withdrawal claim that was not available to him previously.

Based on Martino’s testimony, we agree that Martino orally moved to withdraw the plea before it was accepted by the trial court.

So Scott wins? No, and here’s where things gets weird:

[E]vidence of the off-the-record conference is new, material to Scott’s instant claim, and directly relevant to our disposition of his claims on direct appeal. But that the evidence has these characteristics, is not to say that relitigation is appropriate. We must also conclude that the evidence “could not reasonably have been presented at the original trial,” or for our purposes, on direct appeal.

We conclude that Scott cannot show that he could not reasonably have presented this evidence on direct appeal. First, there is evidence that Scott had personal knowledge of the off-the-record conference and Martino’s oral motion to withdraw the plea even though he was not present. On direct appeal (where he was represented by different counsel), Scott stated that “the plea was accepted in chambers without the presence of the Defendant and after Defendant’s counsel had orally moved to withdraw the plea.” Brief of Appellant at 17, Scott, 434 F. App’x 103 (No. 09-2576). That Scott made this assertion suggests that he had some knowledge that the oral motion to withdraw the plea was made.

Further, given that the record strongly suggests that Scott had knowledge of this purportedly new evidence, his failure to even attempt to present it on direct appeal contradicts any indication of diligence. While it is true that, as a general matter, courts are limited to the trial court record on appeal,8 there is no evidence that Scott made any attempt to obtain a statement from Martino and move to supplement the record. Due diligence does not require that the court accept a defendant’s new evidence; it simply requires that the defendant make some meaningful steps toward obtaining the evidence and presenting it to the reviewing court. Based on the record before us, it appears Scott took no such steps and thus we cannot conclude that the new evidence could not have been reasonably presented on direct appeal.
Thus, because Scott presents no facts from which we can infer diligence, we conclude that Scott cannot lift the relitigation bar.

(That footnote 8 begins, “It is likely that none of the exceptions to this nearly categorical rule would have applied to Scott.”)

So, here’s what we have. On direct appeal, Scott asserted that his counsel tried to withdraw the guilty plea before it was accepted by the judge. But that assertion relied on a fact not in the record, and, really, it was clear as day that the law barred him from getting that new evidence into the record on direct appeal. Now, many good direct-appeal lawyers would not make an extra-record fact assertion like that. But Scott’s bold move actually wasn’t bold enough! This opinion seems to say he also had to try to get a statement from the lawyer and then ask the court to allow it into the appellate record. And because he didn’t make that goofy request, his new evidence “could … reasonably have been presented” on appeal.

That’s not how I see it. If the court wouldn’t have let you present it, it ain’t something that you could reasonably have presented.

And this holding isn’t just wrong but wrong-headed, because from now on cautious Third Circuit lawyers have to festoon their criminal appeals with dead-on-arrival requests to admit new evidence.

If I knew a rehearing dance, I’d be doing it.

New opinions — a wiretap-suit-standing shocker and a qui tam reversal [updated]

Schuchardt v. President of the U.S. — civil — reversal — Hardiman

Today the Third Circuit ruled in favor of a solo civil practitioner named Elliott Schurchardt appearing pro se and appealing the denial of a pro se suit he brought against the government on behalf himself and others similarly situated. The pro se filer alleged that the NSA’s electronic monitoring violates the Fourth Amendment. The district court dismissed his suit on standing grounds, but the Third Circuit held that the pro se filer’s allegations were sufficient to survive dismissal on standing grounds, even though he alleged that the harm here resulted from collection of “all or substantially all of the email sent by American citizens by means of several large internet service providers.”

I’m going to go way out on a limb and predict a government rehearing petition and/or cert petition.

Joining Hardiman were Smith and Nygaard. Arguing counsel were Schuchardt (his address in the caption is in Virginia, his website lists Tennessee, and 2015 news coverage says Pittsburgh) pro se, and Henry Whitaker of the DOJ appellate section for the government.

UPDATE: seemingly intent on snatching defeat from the jaws of victory, the miraculously prevailing appellant already has been quoted in this news story as follows:

The appellate court ruling, however, limits his ability to subpoena evidence and depose witnesses, apparently exempting anything with a national security classification.

“If that’s the case, I’m not sure how much further the case can go because obviously, this entire area is classified,” said Schuchardt, who is considering an appeal to the Supreme Court on that part of the decision.

Sigh.

U.S. ex rel. Customs Fraud v. Victaulic — civil / qui tam — reversal — Roth

A divided Third Circuit panel today ruled that a district court erred in denying on futility grounds a qui tam relator’s motion for leave to amend its complaint. This appeal arises from the same amazing sitting I wrote about a couple weeks ago, the tenth published opinion from that panel.

Joining Roth was Krause; Fuentes dissented with vigor, arguing, “Whereas Twombly and Iqbal require plausible allegations of wrongdoing, CFI gives us unsupported assumptions and numerical guesswork.” Arguing counsel were Jonathan Tycko of D.C. for the appellant, Henry Whitaker (same one) for the government as amicus appellant, and Thomas Hill of D.C. for the appellee.

 

 

Two big new opinions for the civ pro nerds [updated]

The Third Circuit issued two published opinions today, both fascinating if you enjoy tricky civil procedure issues.

 

Hoffman v. Nordic Naturals — civil — affirmance — Fuentes

Imagine you file a suit in state court. The defendant removes the case to federal court and then urges the federal court to dismiss your suit on a procedural ground. You’re sure the federal court has no jurisdiction at all to hear the case and so must remand it. The district court agrees with the defendant that dismissal would be warranted on the procedural ground — and it agrees with you that it has no jurisdiction. So what should the district court do?

Before today, I would have said the answer was dead obvious — the district court has to remand because it lacks jurisdiction. Without jurisdiction, it can’t decide your case, no matter how good it thinks either party’s arguments are, and no matter whether those arguments go to the merits of your claims or instead rest on a procedural ground.

But today the Third Circuit reached the opposite conclusion: “The District Court was . . . permitted to ‘bypass’ the jurisdictional inquiry in favor of a non-merits dismissal on claim preclusion grounds,” because “a court is not required to establish jurisdiction before dismissing a case on non-merits grounds.” That rationale seems wrong to me.

Here’s how the issue arose: plaintiff Harold Hoffman brought class-action lawsuit #1 in state court. The defendants removed the suit to federal court pursuant to CAFA, which gives federal courts jurisdiction to hear class actions big enough to meet certain thresholds, including that the amount in controversy exceeds $5 million. The district court denied Hoffman’s remand motion because it held that the suit met CAFA’s thresholds, and then on the merits it dismissed the suit on the pleadings. (Having dismissed the suit on the merits, the court gave Hoffman a chance to amend his suit, which he didn’t do.)

Hoffman then filed suit #2, again in state court. His new claims were basically the same as his old claims, but this time he defined the class more narrowly. Said the Third Circuit, “The purpose of this change, was, it seems, to reduce the amount recoverable and therefore defeat federal jurisdiction.” The defendant again filed notice of removal, Hoffman sought remand because this time CAFA did not confer jurisdiction, and the district court dismissed suit #2.

Today, the Third Circuit affirmed. But, critically, the court did not hold that the district court had jurisdiction over suit #2. Instead, it held that the district court didn’t need to have subject-matter jurisdiction over the case — that is, the removal need not have been legal — if the court ends up dismissing on non-merits grounds, citing the Supreme Court’s 2007 Sinochem case. Sinochem held that “a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the merits of the case.” In my view, Sinochem is night-and-day different from what the court does here. Sinochem was just about forum selection and efficiency, not about courts nuking cases they don’t have the power to hear.

The whole point of the second removal was to throw out the second suit based on the federal court’s view of the merits. If the federal court didn’t have jurisdiction over the second suit, then it shouldn’t be the one to decide the preclusive effect of its merits ruling in the first suit. Nor should it decide whether tactical gamesmanship in repackaging the second suit warranted its dismissal. Only a court that has jurisdiction over the second suit — here, the state court — should get to decide those things.

As the hypothetical I began this post with suggests, I read today’s opinion to mean that federal courts can decide and dismiss removed state-filed suits — even if the removal was patently illegal — any time they can find a non-merits basis for dismissal. Suffice to say such a rule would be a big deal.

The introduction to today’s opinion emphasizes that the plaintiff here is a “serial pro se class action litigant.” (See, e.g., this law firm’s web page entitled, “Have you been Sued by Harold Hoffman?”) That fact wasn’t relevant to the court’s legal reasoning, but its prominent mention in the opinion may help explain the outcome here. And, frankly, it isn’t easy to imagine the court being eager to grant a rehearing petition filed by that same serial-filing pro se attorney. That’s a shame, because I think today’s opinion does warrant rehearing.

Joining Fuentes were Krause and Roth. The case was decided without oral argument.

 

UPDATE #1: After I posted the above, I was contacted by the losing party and ultimately retained to prepare a petition for rehearing in the case. I had no connection at all to the case at the time I wrote the post.

UPDATE #2: The same day the court issued its opinion, it also entered an order granting Nordic’s motion under FRAP 38 for sanctions and double its costs for filing an utterly frivolous appeal.

 

Wallach v. Eaton Corp. — civil — reversal — Krause

The Third Circuit issued a wonderfully cogent opinion today deciding a little point of antitrust procedure and a not-so-little point of class action procedure. The opinion’s introduction crisply explains:

In this case, we are called upon to determine, among other things, the fount and contours of federal common law applicable to the assignment of federal antitrust claims and the reach of the presumption of timeliness for motions to intervene as representatives of a class. Consistent with the Restatement of Contracts and the doctrines undergirding federal antitrust law, we hold that an assignment of a federal antitrust claim need not be supported by bargained-for consideration in order to confer direct purchaser standing on an indirect purchaser; such assignment need only be express, and that requirement was met here. We also hold that the presumption of timeliness, that is, the presumption that a motion to intervene by a proposed class representative is timely if filed before the class opt-out date, applies not only after the class is certified, as we held in In re Community Bank of Northern Virginia, 418 F.3d 277, 314 (3d Cir. 2005), but also in in the pre-certification context. Because the District Court failed to apply that presumption and the intervenors’ motion here was timely considering the totality of the circumstances, we conclude the District Court abused its discretion in denying their motion to intervene on that basis. Accordingly, we will reverse and remand for proceedings consistent with this opinion.

On the antitrust standing issue, the holding (antitrust claim assignments don’t require consideration) matters less than how the court got there. The court followed its prior precedent to conclude that the issue was controlled by federal common law. Since no precedent answered the question, the court then had to decide where to look for the content of federal common law. One side urged the court to look at the state law in all 50 states and adopt the prevailing approach; the other side urged it to follow the Restatement. The court decided that the Restatement was the right starting point and accepted the Restatement’s rule.

The class action timeliness-of-intervention rule has broad significance. The way the issue arose is that the defense sought to knock out the named plaintiff for lack of standing, other members of the putative class realized that the whole suit could be thrown out if the defense standing argument prevailed, so other putative class members moved to intervene but the district court said the intervention request was untimely. The Third Circuit disagreed for practical reasons:

[C]lass members would be compelled to intervene in every class action to protect their interests in the event the proposed class representatives are ultimately deemed inadequate”—giving rise to inefficiencies the class action device was designed to avoid  both before and after class certification. Denying the presumption to putative class members also could result in great inefficiencies and reductions in judicial economy in cases like the one before us, which would be dismissed after years of motion practice and discovery, only to be filed anew by plaintiffs who were unable to simply intervene and carry the motion for class certification through to its conclusion. Further, if the presumption of timeliness applied only to certified classes, then motions to intervene brought prior to class certification might be deemed untimely, even though those same motions would be timely if brought years later, after a class was certified.

(Internal quotation marks, alteration, and citation omitted.) Analyzing the timeliness of the motion to intervene itself, the court ruled that it was timely.

Joining Krause were Chagares and Scirica. Arguing counsel were Emmy Levens of Cohen Milstein for the appellants and Pratik Shah, of Akin Gump, for the appellees. On the appellee’s side alone, I count 22 lawyers on the brief from at least 6 household-name big firms. Fun fact: the lawyer who argued the losing side is co-head of Akin Gump’s Supreme Court and appellate practice; the lawyer who argued the winning side is an associate.

New opinion — divided panel rejects waiver argument and orders arbitration

Chassen v. Fidelity Nat’l Financial — civil / arbitration — affirmance — Smith

A divided Third Circuit panel today ruled in favor of a civil defendant seeking to compel individual arbitration (that is, non-class arbitration; the opinion refers to it as bipolar arbitration). The court held that the defendant did not waive its arbitration-clause defense — even though it did not raise the defense in two and a half years of expensive litigation below, and even though it could have but did not raise the arbitration defense to obtain class arbitration the whole time — because an effort to compel individual arbitration would have been futile under then-existing law. The majority ruled that the factors it previously had announced for deciding when a party waived an arbitration defense did not control when the sole reason for the delay in asserting the defense is futility.

Judge Rendell — who, as I’ve observed, has been a major force in the court’s recent en banc litigation — dissented. Her opinion began:

The majority’s opinion is flawed for a clear and obvious reason: it relies on caselaw that has no application here. Therefore, I must respectfully dissent.

In Muhammad v. County Bank of Rehoboth Beach, the New Jersey Supreme Court held that “the presence of the class-arbitration waiver in Muhammad’s consumer arbitration agreement render[ed] that agreement unconscionable.” 912 A.2d 88, 100 (N.J. 2006). Yet, despite the lack of a class arbitration waiver in the arbitration clauses here, the majority holds that a New Jersey court in 2009, at the outset of this case, would have found Muhammad controlling here. I reject that view, and urge you to read Muhammad and the actual arbitration clauses at issue here. Doing so will lead inexorably to one conclusion: this case is not Muhammad, and a motion by the Defendants in 2009 to compel arbitration thus would have been anything but futile. Moreover, the majority has expanded the concept of futility beyond what we as a court should recognize.

Seems like a good bet for a petition for en banc rehearing.

Joining Smith was Roth, with Rendell dissenting. Arguing counsel were Michael Quirk of William Cuker for the appellants and Michael O’Donnell of Riker Danzig for the defendant.

 

New opinion — Third Circuit affirms denial of ineffective-assistance claim where trial counsel raised the issue only in a footnote

Nguyen v. Attorney General — habeas corpus — affirmance — Greenberg

The Third Circuit today affirmed the denial of habeas corpus relief in a case where the prisoner argued his trial counsel was ineffective for raising a speedy-trial issue only in a letter-brief footnote. The court noted its intimate familiarity with the (New Jersey) state court’s procedures and its certainty that those courts would view the footnote as sufficient to preserve the legal issue, and accordingly it held that counsel’s performance was not deficient. The court also rejected the prisoner’s strained argument that the state courts had found as fact that counsel had not raised the speedy-trial issue.

The opinion’s holding and its core reasoning both seem sound, but I wonder about some of the language. The opinion says at pages 3 and 20 that it reviewed the ineffective-assistance claim through a “doubly deferential” lens. In habeas cases, this double deference refers to the interplay of (1) the Strickland ineffective-assistance standard with (2) the 28 USC 2254(d) limitation on relief for claims adjudicated on the merits in state court. But here the state court denied the claim on prejudice grounds only (see op. p. 22, which states “District Court took no position” but presumably means ‘state court took no position,’ compare p.15), while the Third Circuit denied relief on deficient-performance grounds only, so the 2254(d) limitation on relief did not apply. So the “doubly deferential” language seems out of place here and I hope it does not create confusion in future cases.

Joining Greenberg were Ambro and Jordan; Ambro also concurred separately. Arguing counsel were Jonathan Edelstein of Edelstein & Grossman for the prisoner and James McConnell for the state.

New opinion — a remarkable career-offender-sentencing opinion

US v. Rengifo — criminal — affirmance — Roth

The Third Circuit on Friday embraced an exceptionally aggressive interpretation of the career-offender sentencing provision, affirming a defendant’s career-offender sentence without oral argument.

Under the US Sentencing Guidelines, a defendant can be sentenced as a career offender only if he has two qualifying prior convictions. One way a conviction can qualify — the way at issue in this case — is if it resulted in a “sentence of imprisonment exceeding one year and one month.”

One of Hector Rengifo’s two prior convictions was possession with intent to distribute marijuana. The sentence he received for this state conviction was “time served to 12 months.” Since 12 months plainly does not exceed one year and one month, the prior conviction doesn’t qualify and Rengifo isn’t a career offender, right? Wrong.

It turns out that Rengifo was released on parole after serving 71 days of the time-served-to-12-months sentence. Then his parole was revoked, he (as the opinion awkwardly puts it) “was sentenced to the remaining 294 days of the original sentence,” and he served another 120 days. He was released on parole again, revoked again, and “sentenced to the remaining 174 days of his sentence.” In the end he served his full original sentence, and nothing more. By “nothing more,” I’m referring to the fact that, in some jurisdictions, defendants who violate parole get additional time tacked onto their sentences for the parole-violating acts — revocation sentences, not just revocations. That’s not what happened here: Rengifo served 365 days. So, still not a sentence “exceeding one year and one month,” right? Wrong.

The government argued that, for career-offender-calculation purposes, Rengifo’s sentence was 365 days (the original max sentence) plus 294 days (the time he served after being released on parole the first time). The court rejected this argument — instead adopting a career-offender-calculation methodology it described as “harsher”:

[T]he correct total of Rengifo’s sentence of imprisonment is 833 days, which consists of the maximum imposed original sentence of 365 days, plus the maximum imposed sentence for the first revocation of 294 days, and plus the maximum imposed sentence for the second revocation of 174 days.

Holy cow!

The court rejected Rengifo’s due-process argument that this triple counting was double counting, and it rejected his rule-of-lenity argument because it found the career-offender guideline and application notes unambiguous. It relied mainly on USSG 4A1.2k n. 11, which says, “[i]f the sentence originally imposed, the sentence imposed upon revocation, or the total of both sentences exceeded one year and one month, the maximum three points would be assigned.”  I don’t see how it’s not at least ambiguous whether “sentence imposed upon revocation” means a new sentence added to the underlying sentence for the parole-violating acts.

Joining Roth were Fuentes and Krause. The case was decided without oral argument.

Still more on Javier — rehearing and publication timing

I posted yesterday about Javier v. AG, explaining my view that the opinion hadn’t addressed a key question, and that the answer to that question might cast doubt on the holding. Any time I express doubts about a panel opinion, I’m interested to see how things play out as far as rehearing  — will it be sought, will the rehearing petition raise arguments along similar lines as my post, how will the court rule?

But, in this case, the court already denied rehearing. Recall that Javier originally was issued back in June as non-precedential. Javier filed for panel and en banc rehearing, two days after the government filed to publish the opinion. The court denied panel and en banc rehearing on July 7, almost a month before the panel re-issued the opinion as precedential.

Which raises a question interesting to appellate procedure nerds — did the non-panel judges who voted to deny rehearing en banc know at the time they voted that the opinion would be precedential? Should it matter? Do judges casting en banc votes scrutinize precedential opinions more closely? I think they should, and I bet many do.

Now, I don’t know what internal procedures the Third Circuit follows when petitions for rehearing and motions to publish are both pending, and I’m not suggesting that anyone did anything wrong here.

But in my view the better practice would be for a panel to rule on the motion to publish and issue the precedential panel opinion before the court votes on the en banc rehearing petition. (I recognize this might require some tweaking of IOP 9.5.) En banc rehearing votes should be — and should appear to be — fully informed and free of any potential for manipulation by the panel.

New opinion — can the government deport you for threatening to slap someone? [updated]

Javier v. AG — immigration — deny and dismiss — Greenaway

At the government’s request, the Third Circuit today issued as precedential an opinion it previously had issued as non-precedential,  holding that a conviction under Pennsylvania’s terroristic-threats statute (18 Pa Cons. Stat. 2706(a)(1)) categorically qualifies as a crime involving moral turpitude to support removal. The statute makes it a crime to “communicate[], either directly or indirectly, a threat to: [] commit any crime of violence with intent to terrorize another.” The court rejected the petitioner’s argument that, because “any crime of violence” includes simple assault and because simple assault is not turpitudinous, therefore the statute included non-turpitudinous conduct. The court reasoned that the turpitude derives from the intent to terrorize. The opinion disagreed with a 2010 non-precedential opinion, Larios v. AG, 402 F. App’x 705 (3d Cir. 2010) (Jordan, joined by Fuentes and Aldisert).

Joining Greenaway were Vanaskie and Shwartz. The case was decided without oral argument.

UPDATE:

The title of my original post about today’s opinion in Javier was, “can the government deport you for threatening to slap someone?”

The court’s answer to that question is that, yes, you can be deported for threatening to slap someone, even though you can’t be deported for actually slapping someone, because an element of a conviction for threats is intent to terrorize.

But the Javier opinion’s reasoning contains a serious gap, in my view: does “intent to terrorize” require anything more, under Pennsylvania law, than ‘intent to make the person think you actually will assault them’? Because, if it doesn’t, then I see no sense in saying assaults aren’t categorically turpitudinous but mere threats to assault are. After all, we’d all agree that hitting someone is worse than making them afraid that you’re going to hit them, no?

I’m not an expert on Pennsylvania criminal law, so I don’t know if “intent to terrorize” requires more than the fear that would result from any believed threat of assault, but the opinion’s failure to discuss the point is concerning.

More on why I don’t think refusing to confess again in court means that the earlier confession was unreliable

I posted earlier today about the Third Circuit’s habeas corpus affirmance in Staruh v. Superintendent. (And the losing attorney just posted a comment.) I can’t help posting some further thoughts, which assume familiarity with my prior post.

The opinion says that the declarant-against-penal-interest’s “failure to testify is extremely probative of the truthfulness of her statements.” In other words, the fact that she wasn’t willing to repeat her confessions under oath is an extremely strong reason to think the confessions were false: she wouldn’t put her money where her mouth was.

That sounds reasonable enough at first blush, but I think it doesn’t survive scrutiny.

Consider. The defendant had asserted that the grandmom confessed her own guilt, and the defendant wanted the grandmom to repeat that confession in court. Assuming grandmom wasn’t eager to face a first-degree murder trial herself, she had 3 options:

  1. testify that the investigator was lying, she had never confessed, and she was innocent;
  2. testify that investigator was telling the truth but the confession had been a lie and she was innocent; or
  3. refuse to testify.

She chose #3. Outside the jury’s presence, she invoked the 5th Amendment right of self-incrimination. That 5th Amendment invocation is what the opinion referred to as her “failure to testify.”

Now, I’m no great 5th Amendment scholar, but if the grandmother believed her confession either (1) never happened, or (2) was false, why on earth would she invoke her right against self-incrimination? (Her out-of-court confessions weren’t under oath, so this even isn’t a situation where she incriminated herself either way, murder or perjury.)

The panel treated her unwillingness to testify as a tacit admission that her confessions were false, but in reality she was perfectly free to disavow the confessions, expressly, just by testifying. The fact that she refused to testify — that, instead, she pled the 5th — is not an extremely strong reason to think the confessions were false. If anything, it’s a pretty good reason to think they were true.

(And all that’s not just a fluky fact of this particular case, but it often will be true in statement-against-penal-interest / right-to-present-a-defense cases — the cases where the court’s “extremely probative” language will forever after be invoked.)

Now, I admit that it’s possible that grandmom was trying to be extremely clever. Maybe she thought she could make a false confession out of court, count on that confession being admitted at mom’s trial and resulting in mom being found not guilty and not resulting in grandmom being tried for murder herself. That’s not impossible, but I think it’s ludicrously unlikely. This isn’t Hollywood, this is grandmom living in a house with “diapers on the floor, kitchen faucets that did not work, a sink overflowing with dirty dishes, and toilets that were used without water.” Far-fetched what-ifs like that are no reason to set up a general presumption like the court (arguably) did here.

And the language in today’s opinion risks creating a powerful new reward for prosecutors who succeed in forcing recanting witnesses or confessing alternate perps to invoke the 5th Amendment. Now they don’t just keep those witnesses from taking the stand and looking the factfinder in the eye — they also get to make the witnesses’ out-of-court recantations and confessions disappear in a poof of smoke, too.

Do we really need to create another hurdle for defendants fighting to prove their innocence?

 

 

 

New opinion — preventing jurors from hearing the alternate perpetrator’s hearsay confessions does not warrant habeas relief

Staruh v. Superintendent — habeas corpus — affirmance — Smith

Two adults lived in the house where a three year-old died from blunt-force trauma: the victim’s mother and grandmother. The mother was the one charged with murder. On the eve of trial, after repeatedly claiming for over two years she had nothing to do with the injuries, the grandmother reportedly confessed in interviews with a defense investigator.

When the grandmother refused to repeat the confessions in court, the defense sought to tell the jury what the grandmother had said, offering it as a statement against penal interest. The court refused the request on hearsay grounds, and, knowing nothing about the grandmother’s confessions, the jury convicted the mother of murder.

In the habeas corpus appeal now before the Third Circuit, the mother argued that the court’s refusal to admit the grandmother’s confessions violated the mother’s due process right to present her defense. Today, without oral argument, the Third Circuit rejected the claim, affirming the district court’s ruling and denying habeas relief.

The court did not appear to dispute the mother’s contention that the confessions “were made before and during trial; were made on more than one occasion to a court-appointed investigator; were never repudiated; were very detailed; and were not the result of threats or inducements.” Yet it found that the confessions had “no indicia of credibility.” It explained:

Lois [the grandmother], in making the statements, was attempting to have her cake and eat it too.11 She was hoping to prevent her daughter from being convicted of murder by confessing to the crime, while at the same time avoiding criminal liability herself. Her last-minute change of heart, after she had both pleaded guilty to the lesser offense of endangering a child and disavowed any responsibility for Jordan’s death for two and a half years, further supports this view. This appears to be a “justice-subverting ploy” that provides the justification for requiring indicia of truthfulness.

In the footnote, the court noted that the defendant “appears to have been unable to obtain an affidavit from Lois reaffirming her confession . . . casting further doubt on its truthfulness.”

I question the court’s reasoning. Maybe the grandmom was lying to protect the mom. It’s possible. But it’s also possible that grandmom was the real murderer, her repeated and detailed and never-repudiated confession was the truth, and her refusal to affirm it was choosing her own freedom over the mom’s. The court’s certainty about which possibility is the truth, seemingly arrived at with no subsequent evidence or fact-finding about grandmom’s actual motivations, seems unwarranted. That seems like a choice for juries allowed to hear all the facts, not appellate courts.

Perhaps the panel meant only to say that relief was foreclosed by 2254(d)(1)’s limitation on relief, not that the claim failed as a de novo matter, but that’s not how I read the opinion.

In the opinion’s most dangerous passage, the court stated in a footnote that the grandmother’s unwillingness to testify “is extremely probative of the truth of her statements.” Read broadly, this language is nothing less than a repudiation of the penal-interest hearsay exception. The whole reason defendants like the mother seek to get in hearsay statements against penal interest is that the alternate perpetrator isn’t willing to repeat the confession in court. If the hearsay is never reliable enough when the declarant won’t testify at trial, then the penal-interest rule is an umbrella you can use only when it’s not raining. I hope that the court clarifies this critical point on rehearing or in a future case.

Joining Smith were Hardiman and Nygaard. The case was decided without oral argument.

UPDATES: I posted some further thoughts on this case here.

New opinion — divided panel reverses conviction based on failure to give entrapment defense [updated]

US v. Dennis — criminal — reversal in part — Nygaard

In a criminal appeal arising out of a stash house reverse sting, a divided panel reversed a defendant’s convictions for robbery and gun possession, holding that the district court erred in failing to instruct the jurors on entrapment, and specifically in weighing competing evidence in the government’s favor to deny the instruction. The majority also rejected the government’s harmless-error argument. It rejected the defendant’s argument that he was the victim of an outrageous prosecution violating due process.

Joining Nygaard was Hardiman; interestingly, Ambro dissented from the instruction reversal, and also expressed measured concerns about stash house reverse stings. Arguing counsel were Benjamin Yaster of Gibbons for the defendant and Mark Coyne for the government.

I expect a government petition for rehearing en banc and I’m certainly curious to see what happens.

[I updated my original post with more details.]

A Friday-morning shaking of my little fist against perceived injustice

Suppose, dear reader, you are in prison, convicted of murder. You believe you are innocent. You lost your direct appeal, so now you don’t get an appointed lawyer, you’re poor, and you have to prove your innocence by yourself, from prison. Good luck!

Then, a miracle. Another prisoner — call him McDougald — talked to your co-defendant, and your co-defendant admitted to McDougald that he committed the murder, not you, and that he lied at your trial in exchange for a lenient sentence for himself.  McDougald sent you a declaration laying out what your co-defendant admitted. Eureka!

Is McDougald telling the truth? Will the court believe him? Well, McDougald also gave you some corroboration. The co-defendant told McDougald that he left a fingerprint at the murder scene. McDougald also sent you the police forensic report, which the prosecution never turned over to you, confirming that they found the co-defendant’s fingerprints there.

You’re saved! But then, disaster.

Before you can file your blockbuster new evidence, you break a prison rule. As punishment, you’re going to be put in the Restricted Housing Unit. When the guards come to move you, they see that you have four boxes of legal materials, including McDougald’s declaration and the fingerprint report. You’re allowed to have four boxes of legal materials — but when you’re in the RHU, you’re only allowed to have one box.

And now it gets Kafkaesque: The guards tell you that since you have four boxes and RHU prisoners are only allowed to have one box, they’re going to seize all four boxes and destroy them. (Oh, and the cherry on top is they write you up again, for possession of contraband — your legal papers.)

*

Now you see why I’m an appellate blogger instead of a crime-story writer.

*

The foregoing facts are from Coulston v. Superintendent, a non-precedential per curiam opinion issued yesterday by the Third Circuit panel of Ambro, Shwartz, and Nygaard. After SCI Houtzdale guards seized prisoner Troy Coulston’s files, he filed a civil-rights suit alleging denial of his constitutional right of access to the courts. Prisons don’t get to destroy inmates’ legal papers every time they break a prison rule, right?

To win his access-to-the-courts claim, Coulston had to show that he lost a chance to pursue an underlying claim that was “nonfrivolous” or “arguable,” and that he has no other remedy. Sounds like Coulston, no? But, in his pro se complaint, the remedy Coulston sought was money damages, and the Third Circuit found this fatal to his claim:

Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), he cannot do so at this time. Heck holds that a damages remedy that necessarily implies the invalidity of a criminal conviction is impermissible while that conviction stands. Id. Coulston cannot demonstrate that the loss of his PCRA claim injured him unless he also demonstrates that his PCRA petition had merit, which necessarily would imply the invalidity of his murder conviction. [Cites to three 7th Circuit cases omitted.]

But wait. Does his access-to-the-courts claim “necessarily” imply the invalidity of his conviction? All Coulston has to show is that his underlying claim is “nonfrivolous,” not that it’s meritorious. Non-frivolousness doesn’t necessarily imply invalidity any more than probable cause would necessarily imply guilt beyond a reasonable doubt.

In other words, a finding that Coulston’s underlying claim is nonfrivolous plainly would not entitle him to release. Compare Heck, where the Court expressly relied on the lower court’s view that “if he won his case the state would be obliged to release him even if he hadn’t sought that relief.” That’s what “necessarily” means. Said Heck: “if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed.” Hey, Coulston, that’s you.

And ohbytheway what a wacky Catch-22. You can sue the prison for taking away your ability to overturn your conviction, but only if you overturn your conviction first. How exquisite!

At an absolute minimum, given the apparent absence of controlling precedent on whether Heck bars access-to-courts claims for money damages, was this a question appropriate to decide in a non-precedential opinion? (Not just non-precedential, by the way, but also unsigned and issued one day after submission to the panel, without oral argument, and after denying the pro se litigant’s request for counsel despite “acknowledg[ing] the concerns Coulston expresses in his motion for counsel” because “we conclude he should nevertheless be capable of presenting his appeal.”)

Not in my book.

To its credit, the panel tries to soften the blow in a footnote, stressing that dismissals under Heck are without prejudice and explaining that prisoners may avoid dismissal under Heck by seeking injunctive relief instead of money damages.

Well, hooey. If the prison already destroyed Coulston’s files, what good will an injunction do him? And what non-moot injunctive relief would he even have standing to seek? If SCI Houtzdale really does have a policy of immediately destroying prisoners’ legal files, how could any prisoner bring a justiciable injunctive-relief claim? Besides, I see nothing in the opinion to discourage a district court from simply staying Coulston’s injunctive-relief-seeking action and then denying it once Coulston has failed to overturn his conviction.

The footnote also says prisoners alleging denial of access to the courts may ask the courts to extend the time for filing their habeas petitions, citing a district court case. But neither 28 USC 2244(d)(1)(B) nor the vanishingly narrow equitable tolling doctrine give me much confidence any prisoner will be able to benefit from this suggestion, either, even if you assume that more time always cures file destruction.

The footnote concludes, “Heck is thus an obstacle, but not an insurmountable one, to obtaining review of a conviction when a prisoner is denied access to the courts.” I wish I shared the panel’s optimism.

If I’m completely off my rocker here — wouldn’t be the first time — I’d sure be grateful to be set straight.

A divided panel applies civil rules strictly to dismiss an appeal as untimely

State National Insurance v. County of Camden — civil — dismissal — Fisher

A divided Third Circuit panel today held that it lacked jurisdiction to hear an appeal because the appeal was untimely. It’s an interesting case both factually and legally.

The appeal was brought from dismissal of a legal malpractice suit. The legal malpractice suit, in turn, arose from a civil suit. A person injured in a car crash sued Camden County alleging negligent maintenance. The county had an insurance policy with a $10 million limit. The lawyer who represented the county allegedly told the insurance company (belatedly) that the case was meritless and she valued it at $50,000. But after a trial the jury awarded the victim $31 million, later remitted to $19 million. Four days later, the insurer sued the county and the attorney. (Actually, the former attorney — her Linkedin page states that she took “a very early retirement,” moved to another state, and became a realtor.)

Now here’s where things get tangled procedurally. The insurer’s original complaint against the lawyer — one of the 2 defendants — was dismissed in 2010. The insurer filed a motion to reconsider that ruling under Rule 59(e), and also a motion to certify an immediate appeal under Rule 54(b), both of which were denied. For the next four years, the insurer litigated its claims against the other defendant, the county. The district court eventually denied the insurer’s motion for summary judgment. The insurer believed that this denial undermined the basis for the earlier dismissal of the claims against the lawyer, so it sought to reinstate those claims under Rule 60(b)(6), and the court ordered briefing on the motion. While motion to reinstate the claims against the lawyer was pending, the insurer and the county settled the claims against the county, The joint stipulation of dismissal between the insurer and the county recited that the insurer wanted to renew its claims against the lawyer. The district court then denied the motion to reinstate the claims against the lawyer, and 15 days later the insurer filed a notice of appeal from the denial of the motion to reinstate the claims against the lawyer. FRAP 4 provides 30 days to file a notice of appeal after entry of judgment or the order appealed from.

The appeal turned on whether the insurer’s appeal involving its claims against the lawyer was timely, and the panel split. The majority (Fisher joined by Chagares) held that the appeal was untimely. Rule 60(b)(6) gives district courts authority to undo final judgments, it explained, and at the time when the insurer filed its 60(b)(6) motion the judgment was not final because the claims against the county remained pending. Thus Rule 60(b)(6) “was not a proper avenue by which to challenge” dismissal of the claims against the lawyer, and as a result the majority treated it as a nullity. And, while district courts also have inherent power to reconsider prior interlocutory orders, that power ends when the court loses jurisdiction, which the majority held happened when it entered a voluntary stipulation of dismissal of the claims against the county, even though no entry of judgment resulted from that. And because the 60(b)(6) motion was “not a proper Rule 60(b) motion,” the majority ruled that it could not toll the appeal-filing deadline under FRAP 4(a)(4)(A). The majority acknowledged that its ruling was “strict.”

Judge Jordan dissented, beginning:

The Majority acknowledges that its interpretation of the operative rules of procedure is “strict.” But the interpretation goes beyond strict: with all respect, it is wrong.

He reasoned:

As the Majority would have it, State National could only maintain its appeal rights by choosing between two bad alternatives: it could abandon its settlement of its separate claim against the County, or it could appeal the dismissal of the claims against Whiteside even as the District Court was actively reconsidering that dismissal. The federal rules of civil procedure and of appellate procedure are meant to permit the “just, speedy, and inexpensive determination of every action and proceeding,” Fed. R. Civ. P. 1, and to allow district courts to fully resolve all issues in the first instance so that appellate review is not “piecemeal,” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974). It would therefore be strange if the rules really did put State National in that bind.

In Jordan’s view, the insurer’s Rule 60 motion to reinstate the claims against the lawyer kept those claims open until the court ruled on the motion. He disagreed that the district court lost its power to reinstate the claims against the lawyer when the claims against the county were voluntarily dismissed, and also disagreed that the Rule 60(b) motion was a nullity because it was filed before the voluntary dismissal. In a footnote, he noted that the majority “are abolishing Rule 60(b) relief for parties in [the insurer’s] position” because any motion would be too early, too late, or, as here, both.

I’m betting the farm that the insurer will seek rehearing en banc, and rare though en banc rehearing is, I think such a motion has a realistic chance of being granted here. On first reading, I find the dissent’s analysis more persuasive. It’s one of the strongest Third Circuit dissents I’ve seen in recent years.

As noted, Fisher was joined by Chagares and Jordan dissented. Arguing counsel were Walter Andrews of Hunton & Williams for the insurer and Michael Canning and Matthew Fiorovanti of Giordano Halleran for the appellee.

 

A glimmer of hope for litigant asking Supreme Court to review a Third Circuit ruling I called questionable

Last week the Supreme Court asked the Solicitor General to file a response to a certiorari petition challenging a controversial 2015 Third Circuit decision. Third Circuit, I love you, but I’m rooting for reversal.

Last August, the Third Circuit rejected Cosmo Fazio’s appeal challenging his guilty plea. I sounded off here, to wit:

My (biased, no doubt) two cents: I don’t understand this ruling one bit. The plea lawyer told the defendant that deportation was possible but unlikely. How is the harm from that terrible advice cured by the fact that the defendant was told that no one can predict to a certainty whether he’d be deported? The plea and the colloquy did not contradict the bad advice.

And what about the fact that when Fazio found out the truth right after his plea he tried to withdraw it right away? Doesn’t that suggest there’s a mere reasonable probability that he would have done the same thing a few weeks earlier if he’d gotten the same advice then? Isn’t that something the opinion should have at least mentioned?

The court relied on its prior ruling in Shedrick, where a defendant pled guilty and then, after he got a big sentence, argued that plea counsel’s plea advice was ineffective. Shedrick gambled, found out that his gamble had failed, and only then tried to undo his plea. But that’s nothing like what Fazio did. Nothing changed between Fazio’s plea and his motion to withdraw it, except that he got competent advice about the plea consequences. He moved to withdraw his plea over a year before the government initiated deportation proceedings.

Rehearing? Cert for summary reversal? This one may not be over.

It bugged me so much that I went hunting online, and what I found bugged me some more:

Here is the 2011 PA Supreme Court order (tragically, entered less than two months after Fazio’s plea hearing) suspending the law license of the Fazio’s plea attorney, Mark D. Lancaster (who is not named in today’s opinion), for failing to file briefs in several Third Circuit appeals. The Disciplinary Board noted its “grave concern as to his fitness to practice law” and also observed that the Third Circuit removed him from 3 cases for work that was “severely lacking” and removed him from the CJA panel. The Board noted that he also had been disciplined in 2005 for failing to file briefs in 2 cases and failing to adequately communicate with his client in a third. If you ask me, all of this, absent from today’s opinion, is highly relevant to the prejudice question.

Fazio’s motion for en banc rehearing (joined by an amicus) was denied, and he filed a Supreme Court petition for certiorari last month. Counsel of record remains Mark Goldstein. The government waived response, but last week the court requested one, due April 14. (The Supreme Court docket page is here.)

The call for response is encouraging, but statistically speaking a cert grant remains a longshot. A 2009 law review article reported that calls for response up the odds of granting cert from less than 1% to 8.6%.

Stay tuned.

UPDATE:  I just noticed that Third Circuit nominee Rebecca Ross Haywood was listed as one of the two lawyers representing the government in Fazio in the Third Circuit. (Michael Ivory was the AUSA who did the oral argument.) [UPDATE TO UPDATE: The opinion caption listed Haywood among counsel, but her name does not appear on the government’s brief.]

UPDATE 2: According to his linkedin page, the plea lawyer ended his practice in 2011 and now is a facilities engineer for a charity in Colorado. The PA Disciplinary Board website lists his status as suspended.

New opinion — denial of qualified immunity affirmed

A big CA3 prisoner-rights win came down yesterday.

A Delaware jail inmate committed suicide after many prior attempts. His family sued the prison administrators, alleging that the suicide resulted from serious deficiencies in the medical care provided by the private vendor the prison hired. Among the sad and unsurprising facts that emerged in discovery:

In deposition testimony, Appellants [the prison officials] acknowledged that
they were aware of the deteriorating quality of FCM’s [the vendor’s]
provision of medical services. Williams admitted that FCM’s
performance had degraded significantly and that he was
aware FCM may not have been fulfilling its contractual
obligations. He was aware of significant
backlogs, that FCM may have been intentionally shortstaffing to save money, and that inmate complaints had increased. [Citations omitted]

The administrators asserted qualified immunity, but the district court disagreed. A divided CA3 panel yesterday affirmed and remanded for trial. The majority held that circuit precedent recognizing Eighth Amendment supervisory liability survived a recent Supreme Court case; the dissent disagreed on this point and others, with the two opinions vigorously engaging each other.

The case is Barkes v. First Correctional Medical. Opinion by Fisher, joined by Ambro. Hardiman dissented. Arguing counsel were Jeffrey Martin for the prisoner’s family and Catherine Damavandi of the DE DOJ for the prison officials.

Star commenter John commented here that he’d be shocked if the appellants don’t seek en banc review, and I agree, although without digging deeper I don’t have much insight on how they’ll fare.

New opinions — 3 criminal appeals, including two government losses and a major 4th Amendment case

I posted separately about today’s 2 civil opinions here. Below are the 3 criminal opinions.

First up is a big Fourth Amendment win for criminal defendants. From the introduction:

In nearly all circumstances, we require police officers
to obtain a warrant  supported by probable cause  before
engaging in a search or seizure of a person, their house, their
papers, or their effects. One of the few exceptions to this rule
allows police to conduct a  warrantless search or seizure when
exigent circumstances require them to act with such alacrity
that  requiring  them to first obtain a warrant would be
unreasonable. The question at the heart of this case requires
us to determine  whether  an exigency has abated such that
officers are no longer excused from the warrant requirement.

And from the conclusion:

We do not mean to underplay the dangers that
police officers may face when pursuing a suspect into an
unfamiliar building. Nonetheless, once the  officers  had
secured the premises and apprehended  Mallory, the
exigencies of the moment abated and the warrant requirement
reattached. We therefore affirm the order of the District
Court granting Mallory’s motion to suppress.

My crystal ball tells me a petition for rehearing is a near-certainty. Stay tuned.

The case is US v. Mallory. Opinion by Fisher, joined by Fuentes and Stark D.Del. by designation. Arguing counsel were Brett Sweitzer for Mallory and Robert Zauzmer for the government.

The second case also is a defendant win, and it also was argued by Zauzmer (AUSA in charge of appeals in EDPA) — first time I’ve seen that. Anyway, the defendant here put computer images of child porn in a shared folder on a file-sharing network. The prosecution was unable to show that anyone ever accessed them, but the defendant was convicted of distributing child porn.  Today CA3 reversed, holding: “A conviction for distributing child pornography cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder.”

The case was US v. Husmann. Opinion by Fuentes, joined by Greenberg and Van Antwerpen EDIT: Van Antwerpen dissented. Arguing counsel were Theodore Forrence for the defendant and Zauzmer for the government.

The last case arises from the Hobbs-Act official-extortion convictions of Newark’s Deputy Mayor and his business associate. The defendants raised a host of issues on appeal, but CA3 affirmed.

The case is US v. Salahuddin. Opinion by Fisher, joined by Cowen and Tashima CA9 by designation. Arguing counsel were Thomas Ashley and Alan Zegas for the defendants and David Feder for the government.

 

New opinion — consumer win in debt-collection appeal

The federal Fair Debt Collection Practices Act limits what debt collectors may make visible on envelopes sent to collect debts. In this case, a debt collector sent a envelope, and visible through the window of the envelope was an account number — apparently an internal account number generated by the debt collector. The debtor sued, asserting that this visible account number violated the FDCPA. The district court held that the account number met a benign language exception; today, CA3 reversed, holding that, if such an exception exists, this account number would not meet it because “it is a piece of information capable of identifying Douglass as a debtor” and “Disclosed to the public, it could be used to expose her financial predicament.” I’m not persuaded. I get lots of mail with account numbers that don’t involve debt collection. I don’t see — and the opinion never says — how an internal account number could “expose” the recipient “as a debtor.”

The case is Douglass v. Convergent Outsourcing. Opinion by Scirica, joined by Fisher and Mariani MDPA by designation. Arguing counsel were Cary Flitter for the debtor and Richard Perr for the debt collector.

NFL concussion-suit oral argument set for September 10

CA3 just set oral argument for September 10 in the NFL concussion-suit appeal, one of the court’s most-watched cases. The argument is on the petition to appeal of 7 former NFL players, plus amicus Public Citizen, who object to the recent class settlement.

I’ve written about this case here and here, noting the appeal  “is fast becoming one of the biggest cases of the year. Among the legal luminaries who’ve now joined the fray are Beth Wilkinson, Samuel Issacharoff, Stephen Rosenthal, and Ted Wells,” joining Martin Totaro, Hangley Aronchick, and Alan Morrison. So it’s a safe bet that the quality of argument will be very, very high.

Adding to the interest is the fact that this will be the first oral-argument sitting for new CA3 judge Cheryl Krause. Joining her on the panel will be Ambro and Smith.

 

New opinion — courts not arbitrators decide whether class claims are subject to arbitration

Employees sued their employer in federal court, individually and as a class, for failing to pay overtime. The employees had signed an employment agreement that included a provision that any dispute relating to their employment would be submitted to arbitration. The employer moved to compel arbitration, and the district court granted the motion and terminated the case in 2011; in its order, the district court said it was up to the arbitrator to decide whether arbitration of the classwide claims was available. The arbitrator went on to rule that classwide arbitration was available and issued a partial award for the employees.

Then — even though the employer was the party who moved to compel arbitration, and even though the employer did not appeal the part of the 2011 order it didn’t like but instead waited to see what the arbitrator said — the employer then went back to district court and asked it to vacate the award. The district court denied the motion, so the employer appealed. Today, CA3 reversed.

First, the panel held that the employer’s failure to appeal the 2011 order, instead waiting until after it lost before the arbitrator, was no problem because the employees were not prejudiced. This part of the opinion cited no authority. I don’t know that this holding is wrong, but I sure don’t know that it’s right.

On the merits, the panel deemed the crux issue to be who decides whether class-wide claims were subject to arbitration, the arbitrator or the district court. It held that the district court decides here because the arbitration clause did not unmistakeably provide otherwise. The opinion said the agreement was silent there, but it did not address the provision that an arbitrator would decide “any dispute . . . relating to . . . any provision of this Agreement.” Also odd.

The case is Opalinski v. Robert Half Int’l. Opinion by Ambro, joined by Jordan and Roth. Arguing counsel were Robert Alfred for the employer (one of 8 lawyers from 5 offices in 4 states on the brief) and Shannon Liss-Riordan for the employees.

Update: appellees have filed for panel and en banc rehearing.

New opinion — carjacking a more expensive car leads to a longer sentence

1280px-Mercedes-Benz_SLS_AMG_(C_197)_–_Frontansicht_geöffnet,_10._August_2011,_Düsseldorf

Don’t carjack this one. (Mercedes-Benz SLS AMG (C 197) – Frontansicht geöffnet, 10. August 2011, Düsseldorf. Wikimedia Commons CC-BY-SA 3.0-de)

Two different victims are car-jacked. One is driving a Ford worth $5,000, the other is driving a Mercedes worth $60,000. Neither car is damaged during the crime. If the cases and defendants are otherwise identical, should the defendant whose victim drove a more expensive car get a longer sentence? In the Third Circuit, the answer now is “yes.”

The case is United States v. Smith. Opinion by Jordan, joined by Rendell and Chagares. The opinion was issued without oral argument just 12 days after its panel date.

What Smith actually held is that the USSG 2B3.1 sentence enhancement for property “taken, damaged, or destroyed” applies to undamaged car-jacked cars. And that enhancement goes up one level for property worth over $10,000 and two levels for property worth over $50,000.

The upshot? Our Ford carjacker might get a prison sentence of 41 to 51 months. Our otherwise identical Mercedes carjacker gets 57 to 71 months. Because the victim was driving a nicer car, the prison sentence is 40% longer.

I don’t see how this result is any different from one where a kidnapper gets a longer sentence because his victim was wearing a Rolex instead of a Timex. A head-scratcher.

Update: no rehearing petition filed, mandate issued.

 

Update — New opinion: Retroactivity law is mighty confusing, even for CA3

UPDATED

First, my original post:

Last year, Alleyne v. United States expanded the rule of Apprendi to hold that facts that increase the prescribed range of punishment must be found by jury beyond a reasonable doubt. Earlier this year, CA3 held in US v. Winkelman that Alleyne does not apply to defendants whose convictions already are final. Today, the court reiterated that Alleyne is not retroactive, and clarified that Alleyne is a new rule.

The case is US v. Reyes. Opinion by Nygaard, joined by McKee and Chagares. It was decided on the briefs.

Ho hum. But, now, what I missed:

Reyes said it was only reiterating Winkelman, and Winkelman said it held that Alleyne does not apply on collateral review, but actually Winkelman was only a successor case, by both its facts and reasoning. (Not a habeas nerd? Collateral means all habeas corpus petitions, successor means only that subset of habeas petitions filed by people who’ve already lost a habeas in the same case; so a ruling that applies only to successors is narrow, one that applies to all collaterals is broad.) So Winkelman’s outcome, denying the successor, may have been defensible, but its stated holding was not.

But here’s the startling part: Reyes actually doubles down on its Winkelman error.  Reyes says:

[O]f course, the decision  to make Alleyne
retroactive rests exclusively with the Supreme Court, which
has not chosen to do so.  See Winkelman, 746 F.3d at 136; see
also Simpson, 721 F.3d at 876 (“Unless the Justices
themselves decide that  Alleyne  applies retroactively on
collateral review,” lower courts may not do so.);  United
States v. Redd,  735 F.3d 88, 91 (2d Cir. 2013).  Therefore,
Alleyne  does not provide Reyes  with any basis for relief
because the Supreme Court has not chosen to apply  Alleyne’s
new rule retroactively to cases on collateral review.

Slip op. at 6. This is buck-naked wrong. The decision to make Alleyne retroactive rests exclusively with the Supreme Court only as to successors, per 28 USC 2244(b)(2)(A), a provision that does not apply to non-successor collateral cases like Reyes. Simpson and Redd, like Winkelman, are successor cases, not collateral cases. The court will have to grant rehearing in this case to correct this error.

My sincere thanks to Peter Goldberger (who has forgotten more case law than I’ll ever know) for pointing out what I’d missed.