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Posts Tagged ‘Niemeyer’

The Fourth Circuit today unanimously affirmed the piracy and piracy-related convictions of Mohammad Shibin, a negotiator for Somali pirates in connection with the seizure of the American sailing ship Quest and the German merchant ship Marida Marguerite. Judge Niemeyer wrote the opinion in United States v. Shibin, in which Judge Motz and Judge Floyd joined. (For news coverage of the oral argument, see here.)

This summary begins the opinion:

On May 8, 2010, Somali pirates seized the German merchant ship the Marida Marguerite on the high seas, took hostages, pillaged the ship, looted and tortured its crew, and extorted a $5-million ransom from its owners. Mohammad Saaili Shibin, while not among the pirates who attacked the ship, boarded it after it was taken into Somali waters and conducted the negotiations for the ransom and participated in the torture of the merchant ship’s crew as part of the process.

On February 18, 2011, Somali pirates seized the American sailing ship the Quest on the high seas. A U.S. Navy ship communicated with the pirates on board in an effort to negotiate the rescue of the ship and its crew of four Americans, but the pirates referred the Navy personnel to Shibin as their negotiator. When the Navy ship thereafter sought to bar the pirates from taking the Quest into Somali waters, the pirates killed the four Americans.

Shibin was later located and arrested in Somalia and turned over to the FBI, which flew him to Virginia to stand trial for his participation in the two piracies. A jury convicted him on 15 counts, and he was sentenced to multiple terms of life imprisonment.

On appeal, Shibin contends that the district court erred by refusing (1) to dismiss the piracy charges on the ground that Shibin himself did not act on the high seas and therefore the court lacked subject-matter jurisdiction over those charges; (2) to dismiss all counts for lack of personal jurisdiction because Shibin was forcibly seized in Somalia and involuntarily removed to the United States; (3) to dismiss the non-piracy counts involving the Marida Marguerite because “universal jurisdiction” did not extend to justify the U.S. government’s prosecution of those crimes; and (4) to exclude FBI Agent Kevin Coughlin’s testimony about prior statements made to him by a Somali-speaking witness through an interpreter because the interpreter was not present in court.

We conclude that the district court did not err in refusing to dismiss the various counts of the indictment and did not abuse its discretion in admitting Agent Coughlin’s testimony. Accordingly, we affirm.

In the course of explaining why jurisdiction was proper over the non-piracy counts regardless of the presence or absence of universal jurisdiction, the Court explains that “Shibin was involved in hostage taking on the Marida Marguerite and was later found in Virginia, where he was prosecuted.” This is something of an understatement in normal parlance, but makes sense in legal parlance. As the court explains earlier in its opinion, Shibin’s presence in the United States satisfies the “found in” requirement even though that presence was involuntary on his part.

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The Fourth Circuit issued its opinions yesterday in two pregnancy center compelled speech cases: Centro Tepeyac v. Montgomery County and Greater Baltimore Center for Pregnancy Concerns, Inc. v. Baltimore. The decisions tracked the tentative predictions I made after observing oral argument: a narrow, procedure-based decision to vacate and remand the permanent injunction against enforcement in the Baltimore case, and affirmance of the preliminary injunction against enforcement in the Montgomery case.

In the Baltimore case, Judge King wrote for an eight-judge majority (consisting of himself, Chief Judge Traxler, and Judges Motz, Gregory, Duncan, Davis, Keenan, Wynn, Floyd, and Thacker). Judge Niemeyer authored a dissenting opinion, in which Judges Wilkinson, Shedd, and Agee joined. Judge Wilkinson authored a separate dissent.

In the Montgomery County case, Judge King wrote for a nine an eleven-judge majority. Judge Gregory and Judge Davis, who did not hear the Baltimore case, joined the judges from the Baltimore case, as did Judge Wilkinson. In addition to joining Judge King’s opinion, Judge Wilkinson wrote a solo concurrence. Judges Niemeyer, Shedd, and Agee dissented. [Editorial note: This paragraph edited from the original version to correct error noted in the first comment.]

The combined opinions add up to about 140 pages and it’s July 4th, so detailed legal analysis will have to wait.

With respect to First Amendment law standing alone, my preliminary impression is that the decisions have the potential to inject confusion into what should otherwise be a straightforward application of First Amendment law for these ordinances. As Judge Wilkinson notes in his Greater Baltimore dissent, “[t]here has never been any dispute that the Ordinance forces organizations like the Center to communicate a message they would otherwise never utter. Given the dangers of compelled speech, this kind of mandated disclosure should be a last resort, not a first recourse.” Yet the majority opinion remands to allow Baltimore to try to establish that its ordinance was somehow a regulation of commercial speech. In support of this decision, the court provides a diffuse statement of the law surrounding commercial speech. The opinion does not endorse the application of the standard of review appropriate to commercial speech but instead asserts that the district court erred by rejecting application of this standard of review based on insufficient facts.

Instead of training its analysis on the speech actually regulated–the speech that takes place in the centers where the government-ordered messages must be posted–the majority opinion sweeps in the need for considering things like “the scope and content of [the Center's] advertisements.” This focus apparently derives from Fargo Women’s Health Organization, Inc. v. Larson, 381 N.W. 2d 176 (1986), which the majority discusses in detail. But that case dealt with a preliminary injunction that prohibited deceptive advertising rather than legislation compelling delivery of the government’s message in conjunction with in-person speech about pregnancy. Indeed, the North Dakota Supreme Court struck out the compelled-speech portion of the underlying injunction in Larson even though–unlike the Baltimore and Montgomery County ordinances–that injunction directly regulated advertising rather than the in-person provision of information. (It may also be worth noting that this non-binding decision of the North Dakota Supreme Court predated the binding decision of the Supreme Court of the United States discussing the boundaries of commercial speech doctrine in Riley v. National Federation of the Blind, 487 U.S. 781 (1988).)

Although en banc rehearing is typically reserved for “questions of exceptional importance” (FRAP 35), it does not follow that en banc decisions actually resolve questions of exceptional importance. The Greater Baltimore decision does not. From the perspective of First Amendment law, its principal defect is failure to delineate the operative legal principles for separating commercial speech from non-commercial speech and explain why those principles called for the kind of discovery it thought necessary. To the extent that it does discuss these principles, the majority’s analysis drifts from focus on the nature of the speech directly burdened by the in-center positing requirement. But this drift is largely a consequence of its focus on discovery and procedure rather than elaboration of First Amendment law. Hopefully the opinion’s diffuse discussion of commercial speech doctrine may at least avoid doing serious damage to First Amendment law precisely because it is so diffuse.

Nor does the Centro Tepeyac decision resolve any questions of exceptional importance. Its affirmance of the district court’s conclusion that strict scrutiny applies to the challenged ordinance is noteworthy but uncontroversial. Had it not relied so heavily on the “abuse of discretion” standard of review, parts of that opinion would be more problematic. The challengers bore the burden of showing a likelihood of success on the merits, but once the court properly recognized that strict scrutiny was necessary, it should have required the government to demonstrate narrow tailoring. It did so, in part. But as Judge Niemeyer points out in dissent, this should have included consideration of less restrictive alternatives to compelled speech for both sentences of the compelled speech.

Given how little these decisions actually decided as a matter of First Amendment law, it seems the principal legal effect of the court’s en banc consideration in that area was to deprive the panel opinions in these cases of their precedential force. As someone who thinks those panel opinions were correctly decided in the first instance, that consequence is unfortunate. But the litigation will continue. And barring some surprising fact development or substantial change in governing law, I remain hopeful that the cases will ultimately end up yielding results close to the initial panel decisions.

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John Coleman filed a FOIA request seeking some information from the DEA. The DEA eventually denied the request. But it took a really long time to do so. And when the DEA finally responded, they blamed Coleman because he did not prepay a certain fee. When Coleman sued the DEA in federal court to get the information he requested under FOIA, the DEA said he should lose because he had not exhausted his administrative remedies. The district court agreed with the DEA. Today, the Fourth Circuit decided Coleman’s appeal. The first sentence of the second paragraph of Judge Wilkinson’s opinion for the court in Coleman v. DEA states: “Having exhausted the litigant, the DEA proceeded to argue that it was Coleman who had failed to pay its fee request for a preliminary search of the documents and to exhaust his administrative remedies.” Who do you think won the appeal?

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After seeing the link from Howard Bashman’s How Appealing and some of my prior posts about the Fourth Circuit pregnancy center cases , my friend (and CUA lawprof) Mark Rienzi sent me the plaintiff’s memorandum of law in support of summary judgment in the Montgomery County, Maryland pregnancy center compelled speech case. That case, argued the same morning as the Baltimore case, has proceeded through full discovery and to summary judgment briefing while the appeal of the preliminary injunction has been pending at the Fourth Circuit. This summary judgment record is not before the Fourth Circuit in the en banc appeal, but it is the record to which the legal standard identified by the Fourth Circuit will be applied by the district court.

I am not an impartial observer, as I was already convinced that the Montgomery County and Baltimore ordinances were unconstitutional and I have long supported the pro-life mission of the pregnancy centers targeted by the ordinances. But I believe that an impartial observer would share my assessment that the record in the Montgomery County case firmly establishes the unconstitutionality of the Montgomery County ordinance.

Reviewing this summary judgment memorandum reminds me of two episodes in the oral arguments over the Baltimore and Montgomery County ordinances.

First, near the end of the argument over the Baltimore ordinance, Judge King and Judge Wilkinson had an interchange in which Judge King advocated more discovery while Judge Wilkinson asserted that discovery is not the friend of the First Amendment (his point being that the time it takes to engage discovery is time during which protected speech may be unconstitutionally silenced). The discovery set forth in this brief shows that both judges are right and wrong in different ways. At least as far as the Montgomery County ordinance is concerned, discovery has been the friend of the First Amendment in the sense that it establishes the unconstitutionality of the ordinance. I expect discovery will establish the same about the Baltimore ordinance if that is the disposition ordered by the Fourth Circuit. But extensive discovery was not necessary. Under strict scrutiny, it is not the burden of the challengers to adduce evidence showing that the ordinance is unconstitutional. It is the burden of the government to show that the ordinance is the least restrictive means of accomplishing a compelling government interest. And the evidence on which the legislature acted should have been set at enactment such that extensive discovery is unnecessary.

Second, near the end of the argument over the Montgomery County ordinance, Rienzi as counsel for the challengers emphasized that the case was “fully teed up” for decision by the district court. In my estimation, this brief makes clear why he thought that was worth emphasizing.

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Something has been bothering me for a while about the en banc oral argument last month over a Baltimore ordinance that requires “limited-resource pregnancy centers” to post a notice that they do not refer for abortion or birth control services. I’ve now done some follow-up research. Others may view the results of this research differently, but in my view, counsel for Baltimore’s artful characterization of an advertisement in the record probably misled others present at the argument in the same way that it (temporarily) misled me.

At the argument, counsel for Baltimore asserted that the city was trying to combat “consumer deception in the offer of pregnancy services.” A powerful part of this argument came just two minutes in, when counsel pointed the court to an “Option Line” advertisement in the Joint Appendix that she described as “clearly and inherently misleading.” Counsel argued that the advertisement  was misleading because it offered “medical services” including “abortion” and “morning-after pill,” even though none of the centers actually offered abortions or the morning-after pill. Until near the end of the argument, none of the judges questioned counsel’s characterization of the Option Line advertisement even though she pointed to the page in the Joint Appendix where this “clearly and inherently misleading” advertisement could be found. And by the time one judge asked about it, it seemed as if the rest of the judges had already accepted the characterization.

This has been bothering me because, shortly after the argument, I googled “Option Line” and I could not see how someone scanning the Option Line website would get the impression that one could use the referral service to obtain either an abortion or the morning-after pill. I thought then that, unless Option Line’s advertising had changed substantially between passage of the ordinance (when the Baltimore City Council was allegedly concerned about deception) and the afternoon of the oral argument (when I reviewed the Option Line website), there was a real possibility that counsel for Baltimore had artfully and somewhat misleadingly characterized the advertisement in the JA.

I recently listened to the audio to verify my notes, and I pulled the Joint Appendix off of PACER to check the actual advertisement.  I’ve posted the relevant JA page here. The advertisement contains the words “abortion” and “morning after pill” and “medical services.” But, in my view, the advertisement cannot reasonably be viewed as offering the “medical services” of either “abortion” or the “morning-after pill.” In relevant part, the advertisement states:

Our consultants will connect you to nearby pregnancy centers that offer the following services:

  • Free pregnancy tests and pregnancy information
  • Abortion and Morning After Pill information, including procedures and risks
  • Medical services, including STD tests, early ultrasounds and pregnancy confirmation
  • Confidential pregnancy options

There is an obvious difference between offering information about abortion and the morning-after pill, on the one hand, and offering medical services such as the provision of abortion and the morning-after pill, on the other hand. Baltimore’s argument glides right over this difference. Unfortunately, Baltimore’s artful characterization of this advertisement mattered to the oral argument. Approximately 35 minutes into the argument, for example, Judge Shedd mentioned to counsel for the centers that “we’ve heard about the website that contained the false information,”thus suggesting that he accepted counsel’s artful characterization of the Option Line website.

Near the very end of the argument (around the 1:14:00 mark on the audio), Judge Niemeyer asked counsel whether Baltimore had any evidence that the clinics regulated by the ordinance “have advertised that they do provide abortions, falsely.” She responded “yes,” pointing to the Option Line advertisement. The argument continued:

Q (Niemeyer): What does it say, it says, “we provide abortion”?

A (Counsel): It says we provide medical services, quote, and then it also, quote, abortion and morning-after pill. . . .

* * *

Q (Wilkinson): That’s false advertising, isn’t it? It can be addressed in a variety of ways . . .

A (Counsel): It’s false. It is. . . .

As I’ve previously observed, the drift of this argument seemed to be that the case would be sent back for more discovery. If that happens, I would be surprised if Baltimore is able to show that any of the clinics regulated by their ordinance “have advertised that they do provide abortions, falsely.” As I read it, and as I suspect most other fair-minded readers would read it as well, the advertisement featured by counsel for Baltimore at oral argument does nothing of the sort.

In light of all this, it will be interesting, regardless of the outcome, to see what use the judges of the Fourth Circuit make of the record that is already before them.

[UPDATE: The companion case from Montgomery County has gone through discovery, although that record is not before the Fourth Circuit at this time. A link to the plaintiff's memorandum of law in support of summary judgment, which contains a discussion of the evidence in that case, is in the post above.]

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This morning’s lively en banc proceedings at the Fourth Circuit in abortion-counseling-related First Amendment challenges did not produce clear signs of a winner, but raised questions (at least in my mind) about what legal issues the court took the cases en banc to address. There was virtually no discussion of commercial speech doctrine, and no judge or set of judges developed a line of questioning that would seemingly lay the foundation to displace strict scrutiny as the appropriate standard of review. That said, oral argument reveals only so much. After all, the panel dissent in one of the cases contained an analysis of commercial speech that was surprisingly detailed in light of the dissenting judge’s failure to lay the predicates for that analysis in oral argument before the panel. It is possible that something similar could happen here–though it is much harder to make that kind of move when writing for a number of judges rather than just for oneself.

The en banc court heard back-to-back oral arguments in First Amendment challenges to Baltimore and Montgomery County (MD) ordinances requiring certain pregnancy counselors to post signs about the limited nature of the services that they offer. The court’s decision to take these cases en banc vacated panel decisions that granted First Amendment victories to the challengers. (For my earlier coverage of the panel decisions, see here; for my earlier coverage of the oral argument to the panel, see here.) Judge Niemeyer authored those vacated panel decisions, which Judge Agee joined, while Judge King dissented. That configuration of a Niemeyer majority with a King dissent produced back-to-back en banc arguments earlier this year in cases involving the liability of military contractors for activities at Abu Ghraib and other locations in the Iraq war zone. Those arguments resulted in procedural holdings about the lack of appellate court jurisdiction rather than definitive merits rulings. Something similarly limited with respect to the merits may result from this morning’s arguments as well.

As the panel dissenter, Judge King was one of the most vocal questioners at oral argument in both cases. In the Baltimore case, Judge King (along with a few other judges) emphasized the need for more discovery and a better developed record. Given the substance of his dissent in the Baltimore case and the tenor of questioning by other judges, my best guess is that the en banc court will vacate the district court decision in the Baltimore case and remand for further development of the underlying facts. That is not to say I think that is the best decision, only that I think it the most likely decision in light of the limited information revealed at oral argument.

In the Montgomery County case, Judge King returned repeatedly to the “abuse of discretion” standard for appellate review of a decision to grant or deny a preliminary injunction. Even when counsel for Montgomery County correctly noted (against interest) that legal issues were to be reviewed de novo within the context of the abuse of discretion standard for the ultimate decision to grant or deny, Judge King continued to highlight the abuse of discretion standard. Some of Judge King’s questions dovetailed in some respects with Judge Wilkinson’s repeated invocations of “balance” in First Amendment analysis. These emphases, together with some other indicators from oral argument, may suggest a narrow affirmance of Judge Chasanow’s decision. That decision identified a difference between the two sentences that the ordinance compelled centers to include on their signs, and split the difference between the two. Judge Chasanow upheld the portion of the ordinance requiring centers to state that they do not have a licensed medical professional staff, but enjoined the requirement to state that the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider. Judge Wilkinson thought this split-the-difference approach was a sensible balance, and he may not have been alone in that view.

While I have more confidence with respect to the guess about the Baltimore case than the Montgomery County case, I do not have a high level of confidence in either guess. The military contractor en banc cases earlier this year provided much clearer indications of where the center of gravity was on the court at the time of argument. By contrast, there were a number of cross-cutting issues and interventions in these argument.  During portions of the second argument, for example, Judge Gregory and Judge Motz seemed more skeptical of Montgomery County’s ordinance than Judge Wilkinson, who in turn seemed more speech-protective than some of the other judges during argument of the Baltimore case.

Because both of these appeals addressed the issuance of a preliminary injunction, the merits issue of the constitutionality of both ordinances was one step removed from straight-up consideration by the court. Issuance of a preliminary injunction depends on a court’s assessment of the moving party’s likelihood of success on the merits. This is a predictive judgment. If the Fourth Circuit were to hold that the district court in the Baltimore case should not have found a likelihood of success on the merits without allowing for further factual development, while the district court in the Montgomery County case made a reasonable split assessment of the movant’s likelihood of success in that case, that would still leave open the possibility that both ordinances could be completely enjoined down the road.

In my view, that would be the correct ultimate outcome in both cases. The reason for this assessment is the First Amendment standard of review. Both district courts, as well as all three judges on the original panel, thought that strict scrutiny was the appropriate merits standard of review for the preliminary injunction in the Montgomery County case. They were right. Judge King thought that discovery would have helped clarify the appropriate standard of review in the Baltimore case. He argued that Baltimore might have been able to develop evidence to show that the Baltimore ordinance regulated commercial speech. In my view, this argument is based on legal error.

At least as far as the questioning at today’s oral arguments is concerned, the possibility that commercial speech doctrine should apply on remand is the dog that didn’t bark. The qualifier “at least as far as the questioning reveals” is an important one. While Judge King’s questioning at the panel argument was largely favorable to the City, Judge King did not develop lines of questioning to support the analysis that his dissenting opinion ultimately contained. Perhaps a narrow procedural holding would be just an opening move in a push to ultimately apply the standard of review appropriate to regulations of commercial speech. If there is support for that kind of change in the doctrine, it was not revealed at oral arguments today. That is not to say that it did not exist, only that the arguments provided no evidence of the existence of such support. After this morning’s arguments, it remains difficult to see how either Baltimore or Montgomery County can avoid the application of strict scrutiny under First Amendment doctrine as it currently stands.

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Marc DeGirolami has a post bearing this title over at CLR Forum. The post reports on yesterday’s Fourth Circuit decision in Moss v. Spartansburg County School District Seven. Judge Niemeyer wrote the opinion for the court, in which Judge Gregory and Judge Wynn joined.

Apart from its discussion of substantive Establishment Clause principles, the opinion may be of interest for its assessment of Establishment Clause standing (an area of the law that could probably use some rethinking).

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A split panel of the Fourth Circuit has handed First Amendment victories to pro-life pregnancy resource centers in the City of Baltimore and Montgomery County, Maryland. The decisions in these two cases hold that Baltimore and Montgomery County violated the First Amendment by requiring pregnancy resource centers to post signs indicating that their services were limited in certain ways. The majority opinions in Greater Baltimore Center for Pregnancy Concerns Inc. v. Baltimore and Centro Tepeyac v. Montgomery County reason that these ordinances compel noncommercial speech and fail strict scrutiny. Judge Niemeyer wrote the majority opinions in both cases, in which Judge Agee joined. Judge King dissented in both cases. (For my coverage of the oral argument in these appeals, see here. Howard Bashman has links to early news coverage at How Appealing.)

There is much that one can say about these cases as a matter of First Amendment law. But in this post I want to highlight some of the court dynamics revealed in the opinions.

First, this kind of panel alignment is one that has led to en banc reconsideration in the recent past. For example, Judge Niemeyer wrote the panel opinions in two Abu Ghraib contractor cases that were joined in by another Republican appointee and that drew a procedurally focused dissent from Judge King. But I would be surprised if the Fourth Circuit were to take these First Amendment cases en banc. Much of Judge King’s dissents in these two cases focus on case-specific things rather than basic principles of First Amendment law. And the ordinances do appear to have a “least restrictive means” problem, at a minimum.

Second, some of Judge King’s language in dissent is arresting. The concluding sentence of the introduction to Judge King’s dissent in the Baltimore case is particularly strongly worded: “Because these proceedings have thus followed a course more fitting a kangaroo court than a court of the United States, I write separately in dissent.” This “kangaroo court” accusation is much harsher than language that the Fourth Circuit itself  has sharply criticized when used by counsel. See, for example, footnote 4 of United States v. Venable, which was joined in by Judge King.

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Four owners of a trucking company sold the business’s sole remaining asset–a warehouse–and retired. After selling the warehouse, the businessmen sold their company stock to an investment company that promised to pay the company’s taxes. The investment company never did pay those taxes, and the IRS came after the former owners of the trucking company for the tax bill, which was in the neighborhood of $880,000. The IRS said the transaction with the investment company was a tax shelter scam, but the Tax Court sided with the former owners of the trucking company. A split panel of the Fourth Circuit affirmed. Judge Davis wrote the opinion for the Court in Starnes v. Commissioner, in which Judge Niemeyer joined. Judge Wynn wrote a dissenting opinion.

Depending on one’s view of the facts, either (a) the former owners of the trucking company were victims of unscrupulous cheats, persecuted by an overeager federal government out to take away their hard-earned retirement money, or (b) they pulled a fast one on the federal government, saving themselves over $100,000 each in taxes. Depending on one’s view of the law, either (a) the government should have stayed its hand because it misunderstood North Carolina law, or (b) the government was denied the benefit of federal law elevating substance over form in evaluating the tax consequences of transactions like the one at issue here.

The first few paragraphs of Judge Wynn’s dissent summarize his view of the case:

This case involves a straightforward transaction made complicated so as to facilitate the fraudulent avoidance of a tax liability. Simply put, the petitioners, former shareholders of Tarcon, reduced the sole asset of Tarcon to cash by selling that asset, a warehouse, for $3,180,000. After that October 30, 2003 sale, Tarcon had $3,091,955 in its bank account and no  tangible assets. As a result of the warehouse sale, Tarcon incurred a federal tax liability of $733,699 and a North Carolina tax liability of $147,931, for a total of $881,628. If the story had ended there, the four former shareholders, each of whom owned 25 percent of Tarcon, would have completed the liquidation of Tarcon by paying those tax liabilities and dividing the remaining sum, allowing each to receive a distribution of approximately $552,582.

Of course, the story doesn’t end there. Instead, MidCoast entered with a fraudulent scheme that would allow the former shareholders to avoid paying their $881,628 tax liability. Under its proposal, MidCoast would pay the former shareholders $2,621,136 for their Tarcon stock and legal fees; in return, Tarcon would transfer its sole asset, roughly $3.1 million in cash, to MidCoast. Why, though, would the shareholders turn over Tarcon’s $3.1 million to MidCoast and receive only $2.6 million in return?

The answer is evident when Tarcon’s outstanding tax liabilities of $881,627 are factored into the equation. Indeed, it then becomes clear that the former shareholders actually negotiated to be paid $2.6 million in cash—for cash that in reality totaled only $2,210,425, resulting in a windfall of $410,711. That windfall was, in fact, a cut from Tarcon’s $881,627 tax liability, transferred to MidCoast when it purchased the former shareholders’ stock, and which it undoubtedly was scheming to avoid under the guise of offering an “asset recovery premium.” While I recognize the intricacies of MidCoast’s subsequent actions to avoid paying the full liability of $881,627, this transaction cannot escape its ultimately simple  label: a transparent scam designed by the parties to fraudulently evade paying taxes. Accordingly, I must respectfully dissent.

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By 11-3 vote, the en banc Fourth Circuit in Al Shimari v. CACI International has dismissed the consolidated appeals of military contractors who worked at Abu Ghraib and other locations in Iraq. The contractors had appealed from the denial of their motions to dismiss claims brought by Iraqi nationals. The defendants’ motions to dismiss were premised on various grounds related to their status as military contractors in a theatre of armed conflict.

Judge King wrote the opinion for the court, in which Chief Judge Traxler, and Judges Motz, Gregory, Duncan, Agee, Davis, Keenan, Wynn, Diaz, and Floyd joined.

Judge Duncan authored a concurring opinion, in which Judge Agee joined, urging the district courts to “give due consideration to the appellants’ immunity and preemption arguments . . . which are far from lacking in force.”

Judge Wynn wrote a concurrence emphasizing that the court’s jurisdictional opinion “offers no guidance to the district court on the underlying merits of these matters.” (While this is true as a technical matter, the lawyers on both sides will undoubtedly parse the language very closely for future use in the litigation.)

Judge Wilkinson, Judge Niemeyer, and Judge Shedd dissented. Their grounds for dissent were set forth in dissenting opinions by Judge Niemeyer and Judge Wilkinson.

All told, the opinions take up 114 pages. It will take some time to digest them. In the normal case, the dismissal of appeals for lack of jurisdiction would mean the decisions go back down to the district court. But these consolidated cases are not normal cases, and they very well could end up in the Supreme Court next Term. If the contractors do seek Supreme Court review, that will place the Obama Administration in an awkward position given the “equivocal” nature of the position the federal government has thus far taken in the litigation (as observed by various Fourth Circuit judges at oral argument).

For some flavor of the passion aroused by this jurisdictional ruling, consider the following excerpts from the opening of Judge Wilkinson’s dissent:

The actions here are styled as traditional ones and wrapped in the venerable clothing of the common law. Even on common law terms, however, they are demonstrably incorrect, and the impact which tort doctrine will have on military operations and international relations magnifies the difficulties immeasurably. I dare say none of us have seen any litigation quite like this and we default if we accept uncritically or entertain indefinitely this novel a violation of the most basic and customary precepts of both common and constitutional law.

Sadly, the majority’s opinion does precisely this. After reading its decision, one could be forgiven for thinking that the issue before us is a simple jurisdictional question arising out of ordinary tort suits. But these are not routine appeals that can be quickly dismissed through some rote application of the collateral order doctrine. This case instead requires us to decide whether the contractors who assist our military on the battlefield will be held accountable through tort or contract, and that seemingly sleepy question of common law remedies goes to the heart of our constitutional separation of powers. Tort suits place the oversight of military operations in an unelected judiciary, contract law in a politically accountable executive. And in the absence of some contrary expression on the part of the Article I legislative branch, the basic principles of Article II require that contractual, not tort, remedies apply.

The majority emphatically decides this weighty question by pretending not to decide, as its dismissal of these appeals gives individual district courts the green light to subject military operations to the most serious drawbacks of tort litigation. But arrogating power to the Third Branch in a contest over military authority is the wrong call under our Constitution, and there is no garb for this decision so benign as to obscure the import of what the majority has done.

We tread this territory at our peril. This decision is contrary to decades of Supreme Court admonitions warning federal courts off interference with international relations. Of course military contractors should be held accountable, and it is important that a framework be set in place to accomplish this task. But instead of establishing that framework, the majority succumbs to mere drift and in so doing places courts in the most damaging and least defensible legal landscape possible. None of us have any idea where exactly all this is headed or whether the damage inflicted on military operations will be only marginal or truly severe. At a minimum, however, today’s decision breaches a line that was respected by our predecessors on courts high and low. I would not cross this boundary even if the collateral order doctrine could cloak my steps. With all respect for my fine colleagues, I would remand these actions to the district court with direction that they be dismissed.

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A split Fourth Circuit issued an opinion yesterday in the continuing saga of school desegregation litigation in North Carolina’s Pitt County. The decision vacates and remands a district court decision that had ruled in the school board’s favor in rejecting a challenge to a recent student assignment plan.

The current chapter of the story began with the filing in April 2011 of a motion for injunctive relief by a parents’ group who complained that the School Board’s 2011-12 Assignment Plan insufficiently addressed racial disparities. But the story cannot simply pick up there because a key part of the School Board’s defense to this April 2011 action was that its 2011-12 Assignment Plan complied with a 2009 Settlement Agreement/Release and Order that was reached in mediation of a dispute over the 2006-07 Assignment Plan.

The 2006-07 dispute–known as the Everett litigation–also involved the Greenville Parents’ Association. The Association had filed a complaint with the federal Office of Civil Rights (Department of Education) objecting to the Board’s use of race in the 2006-07 Assignment Plan.

In the litigation over the 2006-07 plan, then, the School Board was being hit from both sides–by some parents for not doing enough about racial disparities and by others for placing too much emphasis on race in student assignments.

The 2009 mediated settlement agreement and order in the Everett litigation created a process for input from all sides in creating the 2011-12 Assignment Plan. The Board and the various interested parties went through this agreed-upon process, but the resulting plan was not satisfactory to the plaintiffs. That dissatisfaction led to the motion for injunctive relief at issue in the appeal decided yesterday.

As presented to the Fourth Circuit, the principal issue was who bore the burden of proof in seeking injunctive relief. The appeal also presented a question about appellate jurisdiction.

In an opinion authored by Judge Wynn, and joined in by Judge Diaz, the Fourth Circuit held in Everett v. Pitt County Board of Education that the district court erred “by failing to apply, and requiring the School Board to rebut, a presumption that racial disparities in the 2011-2012 Assignment Plan resulted from the School Board’s prior unconstitutional conduct in operating a racially segregated school district.” Judge Niemeyer dissented, arguing that the majority’s disposition “overlooks . . . the procedural posture of his case and, most importantly, the impact of the settlement agreement reached by the parties ‘as to all matters in dispute’ from the date of the original desegregation orders to the date of the court’s approval of the settlement agreement in a consent order, dated November 4, 2009.”

The decision is a victory for UNC’s Center for Civil Rights, which represented the plaintiffs. Their background page on the case contains links to the appellants’ brief, the school board’s brief, and the reply brief.

The case raises difficult issues about continuing judicial oversight of a school district that has not yet achieved unitary status. It is difficult to evaluate the dueling opinions without further study of the record, including the precise terms of the settlement agreement/release and order, though my preliminary impression is that the majority opinion does not adequately address the dissent’s contentions about the effect of the 2009 settlement agreement/release and order. The one thing that is clear, though, is that the litigation will continue for the foreseeable future.

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The Fourth Circuit held yesterday that bail bondsmen are not entitled to qualified immunity. Judge Diaz wrote the opinion for the court in Gregg v. Ham, in which Judge Niemeyer and Judge Motz joined.

The appeal came from a jury verdict in favor of a disabled woman whose home was invaded by bail bondsmen in search of a fugitive who had passed through her property a couple days earlier (when fleeing a chase). Given the facts of the case, it may be that the bail bondsman would not have been entitled to qualified immunity even if eligible for it, but the appeals court held categorically that bail bondsmen are not entitled to qualified immunity.

(Although it makes no difference to the outcome here, a cautionary note is in order with respect to the opinion’s description of qualified immunity analysis. Relying on the Fourth Circuit’s en banc decision last year in Henry v. Purnell, the opinion states that “[t]he defense of qualified immunity involves a two-step procedure “that asks first whether a constitutional violation occurred and second whether the right violated was clearly established.” This formulation leaves out the Supreme Court’s holding in Pearson v. Callahan that courts are not bound to apply these two steps sequentially.)

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The Fourth Circuit held today that section 212(h) of the Immigration and Nationality Act “does not bar an alien who adjusts post-entry to lawful permanent resident status from seeking a waiver of inadmissibility.” Judge Wynn wrote the opinion for the Court in Bracamontes v. Holder, in which Judge Agee joined. Judge Niemeyer concurred in part and dissented in part.

The split between the majority and the dissent focused on whether the statute unambiguously foreclosed the BIA’s interpretation of the relevant statutory provision. Judge Niemeyer’s dissent begins as follows:

While the majority has perhaps set forth a plausible construction of § 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h), its construction is not the only, or even the most, plausible construction. Indeed, I conclude that the different construction given to § 212(h) by the BIA is not only plausible but is more consistent with the other provisions of the INA. But choosing the best construction is not our task. When a statute yields two plausible constructions, we should defer to the agency, especially when the statute pertains to immigration matters.

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A Fourth Circuit panel consisting of Judge Niemeyer, Judge King, and Judge Agee heard oral arguments yesterday in two First Amendment challenges brought by pregnancy resource centers in Maryland. I attended both arguments. From the content and tenor of the proceedings, it seems very likely that the court will affirm the two district courts whose rulings were at issue, both of which held that ordinances compelling speech by pregnancy resource centers violate the First Amendment.

(more…)

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A split panel of the Fourth Circuit today affirmed the conviction of William White, the white supremacist “Commander” of the American National Socialist Workers’ Party, for threatening to injure or intimidate in violation of federal law. Judge Niemeyer wrote the opinion for the court in United States v. White. Judge Duncan joined in Judge Niemeyer’s opinion for the court and also authored a separate concurrence. Judge Floyd dissented.

The principal issue in the appeal is the appropriate mens rea for a “true threat” not entitled to First Amendment protection. White urged the Fourth Circuit to follow the Ninth Circuit’s decision in United States v. Cassel, 408 F.3d 622 (9th Cir. 2005), by adopting a specific-intent-to-threaten requirement. The Fourth Circuit held that prior circuit precedent foreclosed that approach, and the Supreme Court’s decision in Virginia v. Black, 538 U.S. 343 (2003), was not a superseding contrary decision that required reexamination of circuit precedent.

The opinions feature extensive First Amendment analysis and include citations not only Supreme Court and Circuit Court of Appeals decisions, but also a student law review note, an article by Eugene Volokh, and an article by Frederick Schauer, among other authorities.

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The Fourth Circuit has certified two questions to the Virginia Supreme Court.

One certified question involves the interpretation of a homeowners insurance policy under Virginia law:

For purposes of interpreting an “all risk” homeowners insurance policy, is any damage resulting from [the covered home's] drywall unambiguously excluded from coverage under the policy because it is loss caused by: (a) “mechanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage itself”; (b) “faulty, inadequate, or defective materials”; (c) “rust or other corrosion”; or (d) “pollutants,” where pollutant is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste”?

The per curiam unpublished certification order in Travco Insurance Company v. Ward was entered by a panel consisting of Judge Shedd, Judge Wynn, and Senior Sixth Circuit Judge Keith. The panel heard oral arguments on September 20, 2011. The court’s reasoning with respect to certification is not that extensive for the amount of time that this appeal has been pending.

The other certified question arises out of the employment context:

Does Virginia law recognize a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff’s actual employer, such as a supervisor or manager, but who participated in the wrongful firing of the plaintiff?

Judge Floyd authored the certification order in VanBuren v. Grubb, on behalf of a panel that also included Judge Niemeyer and Judge Motz. The reasoning in favor of certification is much more extensive than in Ward. In addition to noting that the Virginia Supreme Court has not addressed this issue, the order notes that no consensus has arisen among Virginia’s trial courts and that other states are split on the issue.

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Applying Virginia law, the Fourth Circuit today interpreted a commercial insurance policy that required the insurer to “pay for all loss resulting from a claim for a wrongful act” to include coverage for liquidated damages and attorneys’ fees that may be ordered in a FLSA overtime and backpay case. The court held that the insurer had a duty to defend its insured and a duty to indemnify beyond any payments due as back wages. (Back wages would not be “losses” “caused” by the FLSA violation, but rather payments that must be made according to a pre-existing duty.)  Judge Niemeyer wrote the opinion for the court in Republican Franklin Insurance Company v. Albemarle County School Board, in which Judge Motz and Judge Floyd joined.

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The Fourth Circuit’s unanimous published opinion today in Gentry v. Siegel looks to be important reading for bankruptcy lawyers and class action lawyers with putative class actions against a company that enters into bankruptcy before a class is certified. The decision arises out of notices of claim filed by lawyers who had filed putative wage-and-hour class actions against Circuit City. Judge Niemeyer wrote the opinion, in which Judge Shedd and Judge Davis joined.

I will leave it to subject-matter experts to digest the analysis, which begins with the following statement:

The Named Claimants’ efforts to pursue class actions in this bankruptcy case reveal gaps in the Bankruptcy Rules and raise some difficult procedural issues about the manner in which the Bankruptcy Rules provide for class actions in bankruptcy cases, as authorized by Rules 7023 and 9014.

The intrepid reader who continues onward will encounter some of these important-looking statements:

It is not completely clear that Civil Rule 23 could ever be applied to a contested matter. . . . For purposes of our holding, we assume, without deciding, that the Civil Rule 23 process could be applied to the resolution of a contested matter. [p. 8, n.1, emphasis in original]

* * *

[T]he Trustee’s construction of the Bankruptcy Rules is unduly cramped and unsuited for application by a court in equity seeking, by application of the Bankruptcy Rules, to accomplish the purposes of the Bankruptcy Act. The Bankruptcy Rules are tools, which include Rule 7023 and derivatively Civil Rule 23, by which the bankruptcy court as a court of equity is to accomplish the Act’s purposes. In the absence of some prohibiting rule or principle, the Bankruptcy Rules should be construed to facilitate creditors’ pursuit of legitimate claims and to allow Civil Rule 23 to be applied if doing so would result in a more practical and efficient process for the adjudication of claims. [10]

* * *

Because the Bankruptcy Rules accept the notion that class action rules may, in appropriate circumstances, be employed in a bankruptcy case, we conclude that they therefore necessarily embrace the notion that the proposal to represent a class is tentative pending approval. And with that notion comes the equally necessary propositions that if the proposal is approved, the approval relates back to when it was made, and if it is rejected, the putative class members must be given time after the court’s rejection to file individual proofs of claim. [11]

* * *

For the most part, Civil Rule 23 factors do not become an issue until the bankruptcy court determines that Rule 7023 applies by granting a Rule 9014 motion. The issue on such a motion centers more directly on whether the benefits of applying Rule 7023 (and Civil Rule 23) are superior to the benefits of the standard bankruptcy claims procedures. While some Civil Rule 23 factors could be relevant to resolving a Rule 9014 motion, extensive discovery related to class certification is not necessary.

* * *

In deciding the Rule 9014 motion, the bankruptcy court assumed that a class action could be certified, thus rendering discovery into certification irrelevant, and concluded nonetheless that the process of a certified class action would be more cumbersome and expensive than the bankruptcy process. Accordingly, the court found that in this particular case, class certification discovery was not necessary. It reached its decision on the Rule 9014 motion on the threshold question of whether the specific claims resolution process established in this bankruptcy case was superior to the resolution process in a class action, assuming that the proposed classes were to be certified. We conclude that this approach was not an abuse of discretion.

Distinct from the bankruptcy court’s denial of class action discovery, we cannot conclude that the court’s ruling on the merits of the Rule 9014 motion was an abuse of discretion. The court noted that approximately 15,000 claims had been filed against Circuit City as part of the claims process and that the structural mechanisms that the court had put in place to process claims were “well underway” and had been operating smoothly to date.

* * *

Because the bankruptcy court denied the Rule 9014 motion to apply Rule 7023, there was no requirement that unnamed class members be notified in accordance with the procedures under Civil Rule 23. The bankruptcy court would have to grant the Rule 9014 motion before the requirements of Civil Rule 23 could apply. Thus, the only notice required was that given by Circuit City for giving notice of bankruptcy procedures and the bar date.

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Virginia’s FOIA allows “citizens of the Commonwealth” access to certain government records. A citizen of Rhode Island and a citizen of California tried to use the law to get records, but they were rebuffed because they were not Virginians. They sued, contending that Virginia’s FOIA violates the Privileges and Immunities Clause in Article IV and the dormant Commerce Clause. They lost.

Judge Agee wrote the opinion in McBurney v. Young, in which Judge Niemeyer and Judge Gregory joined.

The challenge relied heavily on a Third Circuit ruling, Lee v. Minner, 458 F.3d 194 (3d Cir. 2006), that held unconstitutional a similar Delaware law. Judge Agee wrote that the decision in Lee extended the Privileges and Immunities Clause beyond what the Supreme Court has staked out, and that, in any event, the right at issue in that case was different from the right at issue in the Fourth Circuit case.

(Note: This is the second time that the case has been to the Fourth Circuit. The first appeal centered on standing. See McBurney v. Cuccinelli, 616 F.3d 393 (4th Cir. 2010).)

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Having attended yesterday’s oral argument in the Fourth Circuit’s en banc consideration of Al-Quraishi v. L-3 Servs. Inc. and Al Shimari v. CACI Int’l Inc., I am now wading a little more deeply into the issues.

The D.C. Circuit’s decision in Saleh v. Titan Corp. involved similar claims to those asserted in the cases being considered by the Fourth Circuit. In reviewing that decision, I came across the statement in Judge Garland’s dissent that supplies the title for this post: “To deny preemption is not to grant plaintiffs free reign.”

Judge Garland must have meant “rein” instead of “reign.” But the mix-up is instructive. By asserting state tort law against contractors acting abroad under the control and direction of the U.S. military, authorizing discovery would be extending the “reign” of some other sovereign against the federal government’s chosen helpers in a war zone.

Judge Garland is right that this “reign” would not be “free.” The district court would hold the reins and govern the case based on the court’s perception of the relevant interests. But the appropriate question seems to be not simply how tight a rein the court may hold, but whether the horse should leave the starting gate at all.

(Note: Judge Garland may not be wrong, but rather avant-garde (instead of old guard) in his use of language. According to this Google Ngram, his chosen usage appears to be gaining in popularity while the conventional usage is running flat after something of a decline.)

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The Fourth Circuit, sitting en banc, heard oral arguments this morning in two cases asserting civil damages claims against military contractors for their activities at Abu Ghraib and other locations in the Iraq war zone. (A short write-up of the now-vacated panel decisions is available here, and more extensive  pre-argument discussions of various issues arising out of the panel opinions can be found at Lawfare here, here, here, and here.)

I attended the argument and came away with some (admittedly impressionistic) impressions that might be of interest to those following the cases who could not make it to Richmond for the argument:

- Almost all of the argument and questioning focused on whether the appellate court had jurisdiction. There was some discussion of the correctness (or not) of the D.C. Circuit’s decision in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), dismissing similar claims under a form of “battlefield preemption.” But most of that discussion was about the proper characterization of the doctrine: Is preemption the right way to think about the doctrine, or is it closer to an immunity? And there was much discussion of whether the contractors had a substantial claim to derivative immunity.

- Given how the argument went, it would be surprising if the court were to conclude both (1) that it has jurisdiction, and (2) that the district court properly ruled in allowing the claims against the contractors to go forward. If the Fourth Circuit concludes that it has appellate jurisdiction, the merits of the ruling are likely to be in the contractors’ favor.

- BUT it is difficult to make any confident predictions given that several of the judges either did not ask any questions or asked only one or two, leaving little to observe about their case-specific inclinations.

- Judge Niemeyer and Judge Shedd, responsible for the panel opinions, mounted vigorous questioning designed to show that a remand for discovery was not only unnecessary but also would defeat the very interests to be protected by the immunity doctrine whose applicability they needed to decide, as well as undermining some of the federal interests protected by the preemption doctrine at issue. Judge Wilkinson’s questioning revealed him to be aligned with Judge Niemeyer and Judge King on these issues.

- Judge King, author of the panel dissents, led the questioning for the jurisdictional skeptics. At various times, questions by Judge Wynn, and to a lesser extent by Judge Gregory, Judge Motz, and Judge Davis, revealed likely alignment with Judge King on this point.

- Judge Duncan asked a couple of questions that appeared to be aimed at some sort of middle ground that would allow the Fourth Circuit to dismiss for lack of appellate jurisdiction but still provide guidance to the district court that, on remand, it needs to give more weight to the federal interests threatened by further litigation of these claims. But Judge Wilkinson asked a question suggesting that, if the Fourth Circuit dismisses for lack of jurisdiction, the Fourth Circuit risks taking itself out of involvement until after trial.

- Some of the judges appeared receptive to a remand for lack of jurisdiction under the collateral order doctrine (the appellant’s theory of jurisdiction) with strong suggestions to the district court that it certify an interlocutory appeal under 1292(b). Judge Motz suggested that upholding jurisdiction under the collateral order doctrine would create a circuit split. Earlier in the argument, Judge Motz observed that the Supreme Court’s refusal to allow expansion of the collateral order doctrine was analogous to its treatment of Bivens claims.

- The federal government had a rough day. At the court’s invitation, the federal government had filed an amicus brief. (See here for Steve Vladeck’s summary of the government’s brief.) Counsel for the government, Thomas Byron, had an excellent presence and remained poised and articulate throughout. But the court was clearly not enamored with the federal government’s seeming attempt to have things both ways. When counsel for the government began with a customary expression of pleasure at the opportunity to appear at the invitation of the court, Judge Motz noted that she was “surprised” to hear that given that the brief filed by the government was “equivocal” about the issues. Later on, Judge Wilkinson said that he agreed with Judge Motz, that he thought the government was offering the “most obscure, equivocal kind of presentation . . . .” Judge Motz then interjected that she didn’t say quite that, and Judge Shedd (I think) stated something along the lines of “it sure sounded like that over here.” (Note: It’s hard to convey a flavor of how this all went over in the courtroom, so it’s probably worthwhile for those interested to listen to the recording of oral argument when it is available next week.) Although Judge Motz dissociated herself from some of the more strongly negative characterizations of the government’s position offered by Judge Wilkinson, it seemed that even at the end of argument, Judge Motz was not completely satisfied with the government’s argument. This was apparent from a question she asked about the government’s understanding of Dow v. Johnson, 100 U.S. 158 (1879), which involves the non-susceptibility of military actors to answer in civil tribunals for actions in warfare. She asked government counsel, somewhat skeptically, to explain the following statement from the government’s brief: “Dow and the policies it reflects may well inform the ultimate disposition of these claims. But we are not prepared at this point to conclude that the contractor defendants have demonstrated a right to immediate review of their contentions based on Dow alone.”

- Notwithstanding the difficulties faced by the federal government, it is conceivable that something close to the federal government’s position with respect to jurisdiction could prevail, leading to another interlocutory appeal not too far down the road. As previously noted, however, it is difficult to make any confident predictions given the sheer number of judges (14) and the limited amount of information that can be gleaned from the contents of questions.

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The Fourth Circuit yesterday released an unpublished per curiam opinion in United States v. Stallworth affirming the life sentences of two individuals convicted of participating in a drug-trafficking conspiracy after having two prior felony drug convictions. The panel consisted of Judge Niemeyer, Judge Gregory, and Judge Agee.

According to the opinion, the conspiracy “would purchase a kilogram of cocaine for around $25,000 and then would cook it into crack cocaine, which members were able to sell for between $36,000 and $42,000.” If these numbers are accurate, they are surprising. For an activity that carries such serious consequences, one would expect the profit margin to be higher.

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The dueling opinions in today’s Fourth Circuit decision in Bullock v. Napolitano address whether Title VII waives the sovereign immunity of the United States to a damages suit in state court by authorizing suit in federal court.

By a 2-1 vote, the Fourth Circuit answered this question in the negative. Judge Niemeyer wrote the majority opinion, in which Judge Agee joined. Judge Gregory dissented.

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A Fourth Circuit panel ruled unanimously today that the government must prove a reasonable fit between the ban on firearm possession by an unlawful user of a controlled substance and the objective of reducing gun violence. Judge Niemeyer wrote the opinion in United States v. Carter, which was joined in by Judge Diaz and Senior Judge Hamilton.

According to the opinion, every other circuit to address the issue has held that the ban in 18 U.S.C. § 922(g)(3) satisfies intermediate scrutiny. But the Fourth Circuit could not go along with this because the government had not borne its “burden of showing that § 922(g)(3)’s limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence”:

Without pointing to any study, empirical data, or legislative findings, [the government] merely argued to the district court that the fit was a matter of common sense. In view of our decisions in Chester and Staten [which require "tangible evidence" rather than "unsupported intuitions"], we therefore remand this issue to the district court to allow the government to develop a record sufficient to justify its argument that drug users and addicts possessing firearms are sufficiently dangerous to require disarming them.

The opinion goes on to note that “[t]his burden should not be difficult to satisfy in this case, as the government has already asserted in argument several risks of danger from mixing drugs and guns.”

Another feature worth noting about the decision is that it assumes, without deciding, that unlawful drug users have the same Second Amendment rights as law-abiding citizens. The following paragraphs of the opinion set forth the current state of the law on this issue in the Fourth Circuit:

We first applied Heller in United States v. Chester, 628 F.3d 673 (4th Cir. 2010), where we adopted—as had been adopted by two other circuits, United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), and United States v. Skoien, 587 F.3d 803 (7th Cir. 2009), rev’d 614 F.3d 638 (7th Cir. 2010) (en banc)—a two-step approach for evaluating a statute under the Second Amendment. First, we inquire whether the statute in question “imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification.” 628 F.3d at 680. And second, if the statute burdens such protected conduct, we apply “an appropriate form of means-end scrutiny.” Id. Following this approach, we now proceed to evaluate Carter’s constitutional challenge to § 922(g)(3).

Under the first step, we have three times deferred reaching any conclusion about the scope of the Second Amendment’s protection. In Chester, the government did not attempt to argue that domestic violence misdemeanants, who were prohibited by § 922(g)(9) from possessing a firearm, categorically fell outside the historical scope of the Second Amendment. Accordingly, we assumed, without deciding, that the misdemeanants there were entitled to some measure of constitutional protection and proceeded to the second step of applying an appropriate form of means-end scrutiny. See Chester, 628 F.3d at 680-82. In Masciandaro, the government did argue that possession of firearms in a national park should receive no Second Amendment protection whatsoever. See Masciandaro, 638 F.3d at 471. Nonetheless, we again did not decide the question because even if the defendant there had rights protected by the Second Amendment, the government would prevail under the intermediate scrutiny test that we applied. See id. at 473. And most recently in United States v. Staten, ___ F.3d ___, 2011 WL 6016976 (4th Cir. Dec. 5, 2011), we assumed but did not decide that the defendant had rights under the Second Amendment and rejected his constitutional challenge under the second step, applying intermediate scrutiny. Id. at *5.

In this case, as in Masciandaro, the government contends that dangerous and non-law-abiding citizens are categorically excluded from the historical scope of the Anglo-American right to bear arms. But again we will assume that Carter’s circumstances implicate the Second Amendment because all courts that have addressed the constitutionality of § 922(g)(3) have upheld the statute, see, e.g., United States v. Dugan, 657 F.3d 998 (9th Cir. 2011); United States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (per curiam); United States v. Seay, 620 F.3d 919 (8th Cir. 2010); United States v. Patterson, 431 F.3d 832 (5th Cir. 2005); United States v. Richard, 350 F. App’x 252 (10th Cir. 2009), and our remand in this case is to afford the government the opportunity to substantiate the record and Carter the opportunity to respond. If we ultimately conclude that step two cannot be satisfied, we will need to address the government’s argument under step one.

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The Fourth Circuit’s decision yesterday in United States v. Ramos-Cruz held that the government’s withholding from the defense of the actual names of two prosecution witnesses did not violate the Confrontation Clause in the Sixth Amendment. Judge Duncan wrote the opinion for the court, in which Judge Niemeyer joined. Judge Floyd concurred in the judgment, reasoning that the use of pseudonymous witnesses violated the Sixth Amendment, but that the constitutional violation was harmless error.

For criminal proceduralists, Judge Floyd’s dissent in this case looks like a must-read opinion. Some excerpts:

I do not take lightly the safety concerns accompanying the decisions made by Juan Diaz and Jose Perez—the two witnesses who testified using pseudonyms—to testify against Ramos-Cruz. As the record reflects, MS-13 has demonstrated its willingness to engage in violent reprisal against witnesses who testify against its members. There is no denying that by agreeing to testify against Ramos-Cruz, Diaz and Perez exposed themselves to danger. Most assuredly, requiring them to state their true names in open court would have made it easier for MS-13 to target them and their families. Safety concerns were thus real and valid.

We must recognize, however, that these concerns inhere in many prosecutions of defendants who are members of violent criminal organizations. The sad truth is that, in this respect, the situation presented in today’s case is not rare. Gangs often employ violence as a means of intimidating witnesses. Laura Perry, Note, What’s in a Name?, 46 Am. Crim. L. Rev. 1563, 1580 (2009); Joan Comparet-Cassani, Balancing the Anonymity of Threatened Witnesses Versus a Defendant’s Right of Confrontation: The Waiver Doctrine After Alvarado, 39 San Diego L. Rev. 1165, 1194-96 (2002). Witness intimidation is a serious problem of an alarming magnitude, and it plagues many of our communities. See Alvarado, 5 P.3d at 222 & n.14; Comparet-Cassani, supra, at 1194-204. As a result, the prosecution of members of violent gangs—such as this prosecution of Ramos-Cruz—will often trigger safety concerns for many of the witnesses involved.

Nevertheless, in addressing these concerns, we cannot undermine our constitutional commitment to ensuring that criminal defendants, even those accused of belonging to violent criminal organizations, receive a fair trial. That means they must be allowed to rigorously test the government’s evidence, including all of its witnesses, in an adversarial proceeding before a jury. See Craig, 497 U.S. at 845; See Strickland v. Washington, 466 U.S. 668, 685 (1984). I am unconvinced that they are able to do so if the government can completely withhold the true names of its witnesses throughout the trial.

Access to the true names of the government’s witnesses is critical to ensuring that a criminal defendant is able to rigorously test their testimony in an adversarial manner. As noted, effective cross-examination often entails challenging the witness’s credibility. Hence, the opportunity for effective cross-examination, which the Sixth Amendment guarantees, includes the opportunity to challenge the witness’s credibility. See Van Arsdall, 475 U.S. at 679-80. But without a government witness’s true name, the criminal defendant is unable to perform the type of investigation—whether in court or out of court—necessary to be able to challenge his credibility. See Smith, 390 U.S. at 131. The criminal defendant cannot explore the witness’s background and qualifications to discover any facts that might reflect poorly on his credibility. See Alvarado, 5 P.3d at 221. In effect, denying a criminal defendant knowledge of the true names of the government’s witnesses severely inhibits his ability to perform what is often the most potent aspect of effective cross-examination: impeachment. In my opinion, because completely forbidding a criminal defendant from learning a witness’s true name prevents the opportunity for effective cross-examination, it denies the defendant a fundamental aspect of a fair trial.

My concerns with completely denying criminal defendants access to the true names of the witnesses testifying against them extend beyond practical consequences. Allowing the use of anonymous witnesses also undermines the perception that our criminal trials are open and even contests. Instead, it creates the impression that our criminal trials contain clandestine aspects that operate to provide the government with an upper hand. It does so by suggesting that convictions can be “based on the charges of . . . unknown—and hence unchallengeable—individuals,” Lee, 476 U.S. at 540, even if they can be physically seen. Simply put, obtaining a conviction by using anonymous witnesses appears eerie and covert, and does not inspire confidence in the promise that our criminal trials are open and even endeavors.

Interestingly, the majority opinion does not directly address the bulk of Judge Floyd’s constitutional arguments on their merits, but largely defers to the court’s prior unpublished opinion in United States v. Zelaya addressing the propriety of these witnesses’ testimony in a different case. Although Judge Floyd ultimately concurred in the judgment because he held that the Sixth Amendment error was harmless, I would not be surprised to see the Fourth Circuit decide to consider this issue en banc.

The majority opinion also discusses the standard of review for allegedly erroneous jury instructions (including a detailed discussion of harmless error) and the elements of the federal witness-tampering statute. Read the whole thing.

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