Archive for October, 2011

Chapter IX of Natural Law and Natural Rights begins with a reflection on the need and justification for authority. Finnis writes:

[T]he greater the intelligence and skill of a group’s members, and the greater their commitment and dedication to common purposes and common good, the more authority and regulation may be required, to enable that group to achieve its common purpose, common good.

For . . . the dedicated member of the group will always be looking out for new and better ways of attaining the common good, of co-ordinating the action of members, of playing his own role. And the intelligent member will find such new and better ways, and perhaps not just one but many possible and reasonable ways. Intelligence and dedication, skill and commitment thus multiply the problems of co-ordination, by giving the group more possible orientations, commitments, projects, ‘priorities’, and procedures to choose from. And until a particular choice is made, nothing will in fact be done. . . .

There are, in the final analysis, only two ways of making a choice between alternative ways of co-ordinating action to the common purpose or common good of any group. There must be either unanimity, or authority. There are no other possibilities.

* * *

Now there is no need to labour the point that unanimity about the desirable solution to a specific coordination problem cannot in practice be achieved in any community with a complex common good and an intelligent and interested membership. . . .

John Finnis, Natural Law and Natural Rights, IX.1.

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Earlier this week, the Fourth Circuit decided an appeal in a dispute between Bethesda Softworks, LLC and Interplay Entertainment Co.

Bethesda sought to prevent irreparable harm arising out of Interplay’s alleged copryight infringement related to the Fallout video game. The district court (Chief Judge Chasanow, D.Md.) denied a preliminary injunction and the Fourth Circuit affirmed without hearing argument.

The unpublished opinion  in Bethesda Softworks, LLC v. Interplay Entertainment Co. was issued by a panel consisting of Judges Niemeyer, Duncan, and Agee. For  more details on the opinion see, Shawn Sullivan’s write-up.

When a couple mentions of this case popped up on my Twitter feed, I wondered how I had missed the decision, which apparently mattered to others in addition to the parties themselves. The reason I did not address it earlier is that it was decided without argument, which means that there is nothing that any of the judges saw as particularly difficult about the case, or anything about the case that would have benefited from development through oral argument.

The opinion relies in part on authority from outside of the circuit. For example, in resolving Bethesda’s lead argument–that irreparable harm was established by the parties’ contractual stipulation that breach would result in irreparable harm–the opinion relies on a Tenth Circuit decision and distinguishes a Second Circuit decision. If there is not a Fourth Circuit authority about the circumstances in which a contractual stipulation suffices to establish irreparable injury, that would seem to be a good reason to have ordered argument in the case. And if there is such authority, then the opinion should have cited that binding authority rather than the merely persuasive authority from the Tenth Circuit.

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The Richmond Times-Dispatch reports on an awkward encounter today between Richmond Mayor Dwight Jones and various occupiers at Kanawha Plaza in downtown Richmond. Earlier in the day, Jimmy Barrett of WRVA interviewed William & Mary law professor Timothy Zick about the legal rights of the city vis-a-vis the occupiers. Bottom line: The occupiers are breaking the law and Richmond has the legitimate authority to enforce the law by removing the occupiers.

The legal analysis is not particularly difficult. The city’s ban on overnight camping in public parks is a content-neutral time-place-manner restriction that leaves open ample alternative means of communication.

The protesters obviously seek to occupy the moral high ground vis-a-vis Wall Street and plutocrats and the like, but they also appear to wish to occupy the moral high ground with respect to the law governing use of the city parks. That seems like a more difficult task.

According to the Times-Dispatch story linked above, “[occupier] Kadrich said that the occupiers were ‘following all legislation that we term to be wholly just.’ He added that if given an ultimatum to leave the plaza by a certain date, many protesters may exercise ‘civil disobedience.'” Yet the protesters already are engaged in civil disobedience. Regardless of whether the city forces the issue, they are in violation of a valid law.

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A footnote in an opinion issued earlier this week appears to resolve an implicit intra-circuit split over the government’s ability to appeal a pre-trial order dismissing a particular count or counts in an indictment when the dismissal is based on a stipulation that the government will be unable to prove (or will not seek to prove) certain facts.


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The Fourth Circuit today denied a petition for review of a decision of the Board of Immigration Appeals denying cancellation of removal to two Guatemalan parents classified as alien smugglers for facilitating the illegal entry of their four children into the United States. Judge Wilkinson wrote the published opinion in Ramos v. Holder, which was joined in by Judges Wynn and Floyd. The opinion begins as follows:

Ricardo Paz Ramos entered the United States illegally from Guatemala in 1989, and his wife Berta and their four children followed. Each child’s arrival in the United States involved asimilar sequence of events—Ricardo and Berta sent several thousand dollars to the child at a hotel in Mexico, who arrived illegally in the United States promptly thereafter. The Immigration Judge (“IJ”) and Board of Immigration Appeals(“BIA”) both determined that Ricardo’s and Berta’s monetary assistance amounted to “alien smuggling” pursuant to section 212(a)(6)(E) of the INA, and that they thus lacked the “good moral character” necessary for cancellation of removal. Because the IJ and BIA properly interpreted and applied the”alien smuggling” provision, we deny the petition for review

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The Fourth Circuit issued a published opinion today in United States v. Donnell reversing a sentencing determination that treated a Maryland conviction for second-degree assault as a violent felony based on facts set forth in a statement of probable cause not expressly incorporated into the statement of charges. The opinion was unanimous. Judge Davis authored the opinion, which was joined in by Judges King and Keenan.

The panel that issued this opinion is the same panel that heard oral argument in the U.S.S. Nicholas piracy case. That was the second case argued that morning; Donnell was the first. I recall from the argument that federal public defender arguing on behalf of Donnell, Paresh S. Patel, was a particularly effective oral advocate.

One of the key issues in the appeal is whether a statement of charges incorporated a statement of probable cause. That deceptively simple formulation of the issue masks some unclarity in Fourth Circuit precedent about what constitutes incorporation, some of which is addressed in the Donnell opinion. The difficulty facing the Donnell court, it appears, is that prior panels had finessed (or neglected) an important distinction in describing the manner in which statements of probable cause are or are not incorporated into a statement of charges under Maryland law. To see how the Donnell opinion resolves the issue, read the whole thing and decide what you think.

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Lyle Denniston reports at SCOTUSBlog that five of the six health care cases have been scheduled for discussion at the Supreme Court’s November 10 conference. Just in time for our November 11 “Everything but the Merits” Conference at UR Law School . . .

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One of the more unusual aspects of the two Fourth Circuit decisions issued yesterday came at the tail end of United States v. Taylor, in a partial dissent authored by Judge Davis.  The appeal involved, among other things, a sentencing enhancement imposed after application of the “modified categorical” approach under the Armed Career Criminals Act (“ACCA”).

As the fractured en banc opinions in the Fourth Circuit’s recent decision in United States v. Vann reveal, the court of appeals is deeply riven over the correct approach to sentencing enhancements using the modified categorical approach to analyzing what constitutes a violent felony under the ACCA. Even so, Judge Davis’s concluding advice about appellate strategy in Taylor is unusual in its directness.

After alluding to the “vagaries of the Supreme Court’s sentencing jurisprudence under the [ACCA],” Judge Davis contends that “only the Supreme Court itself can provide the clarification so urgently needed.” He continues: “In that spirit, I would suggest that [appellant’s] counsel . . . save the taxpayers a few dollars and forego the customary petition for rehearing in this case and seek certiorari without inordinate delay.”

This is an unusual piece of advice to offer. It raises questions: Is Judge Davis suggesting that a petition for rehearing would be futile? If so, would that futility be apparent absent the implicit suggestion of futility? Should the statement be interpreted as directed more at other Fourth Circuit judges and at Supreme Court Justices than at counsel for appellant? Is this good advice, given the ferment in the Fourth Circuit over the application of ACCA enhancements and the low probability of Supreme Court review?

With respect to the last question, it is perhaps worth recalling the identity of the other panel judges. Judge Wilkinson authored the majority opinion and Judge Motz joined in that opinion. I have not undertaken independent research into each of these jurist’s views on the ACCA in relation to the views of their colleagues on the Fourth Circuit. As a general matter, however, it is usually a safe bet that there is not an en banc majority to overturn a panel opinion authored by Judge Wilkinson and joined in by Judge Motz.

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In addition to yesterday’s decision on gun possession in motorcycle gangs, the Fourth Circuit issued a published opinion in another gun case: United States v. Taylor. The decision came in the consolidated appeals of Daryl Taylor and Antwan Thompson from a jury verdict convicting them of being felons in possession of a firearm under 18 U.S.C. § 922(g).

Judge Wilkinson wrote the opinion for the court, which was joined in by Judge Motz. Judge Davis authored a separate opinion concurring in part and dissenting in part.

The panel unanimously agreed on the disposition of the appellate issues raised with respect to the conviction and sentence of Daryl Taylor.

The disagreement about Antwan Thompson’s sentence centered on the propriety of a 15-year mandatory minimum under the ACCA due to Thompson’s prior felony convictions. Thompson had three relevant prior convictions: two for cocaine offenses and one for second-degree assault under Maryland law. His argument on appeal was that his assault conviction was not a “violent felony” under the ACCA.

The panel majority applied the modified categorical approach, according to which a court can look at certain materials such as charging documents, plea agreements, and transcripts of plea colloquys, to determine whether the conviction was necessarily for a violent felony.

The panel majority rested on the facts set forth in a plea colloquy, according to which Thompson, in resisting arrest for a drug deal, had thrown a Styrofoam cup of liquid at one police officer and scuffled intensely with three of them, leading to a charge for assaulting the officer on the receiving end of the thrown cup of liquid. Thompson argued that he did not admit the facts set forth by the judge in the plea colloquy, but rather that the record showed only that his lawyer did not dispute those facts.

The panel majority holds Thompson to the representations made by his lawyer. By contrast, Judge Davis argues that the attorney’s say-so in declining to make any corrections or additions cannot be treated as the defendant’s confirmation of the facts set forth by the judge.

This area of the law is not one that I specialize in, but my quick take on the governing precedent as a generalist observer is that Judge Davis is parsing Shepard too finely and that the panel majority is justified in treating Thompson’s assault conviction as one for a “violent felony.”

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Can the prohibition on possessing firearms while employed by a felon apply to cover situations in which the person carrying the firearms is not paid by the felon? In yesterday’s decision in United States v. Weaver, the Fourth Circuit says “yes.”

The government charged several alleged members of the Pagans Motorcycles Club (“PMC”) with violating 18 U.S.C. § 922(h). That provision prohibits the possession of firearms while “employed for” a convicted felon. The charges were based on orders the defendants allegedly received from PMC national vice president Floyd Moore, a convicted felon prohibited from possessing a firearm. The government conceded, however, that it could not (and would not seek to) prove that Moore paid the defendants. Rather, the government offered to prove that Moore sought to circumvent the prohibition against his possession of firearms by ordering the defendants to carry arms when accompanying him. The government alleged that Moore bragged that he did not need to carry a gun because other PMC members carried guns for him.

On a motion to dismiss the § 922(h) charges, the district court (Judge Johnston, S.D. W. Va.) held that the statute required the government to prove some sort of payment. In light of this holding and the government’s concession that it could not put forward such proof, the district court dismissed the § 922(h) charges.

The government appealed pursuant to 18 U.S.C. § 3731. In a published opinion authored by Judge Wilkinson, which was joined in by Chief Judge Traxler and Judge Niemeyer, the Fourth Circuit reversed.

Judge Wilkinson reasoned that the text of the statute imposes no compensation requirement, and that although “employ” can mean “to provide with a job that pays wages,” the term is not limited to this meaning. “By treating compensation as an essential condition of § 922(h),” Judge Wilkinson wrote,” the district court narrowed the intended scope of the statute, adding an element of proof not present in the plain language.” After some additional textual analysis, the opinion also explains that the district court’s interpretation “overlooks the structure and purpose of the statute,” which is, in part, an anti-circumvention provision that prevents convicted felons who themselves may not possess firearms (under § 922(g)) from employing armed bodyguards. This discussion relies in part on legislative history purporting to show that “Congress explicitly targeted the members of criminal organizations.” Finally, the opinion looks to precedent analyzing employment relationships in different contexts to “reinforce the proposition that law does not treat compensation as the sine qua non of an employer-employee relationship.”

The Fourth Circuit’s unanimous opinion is not quite the last word on the application of § 922(h) to the PMC defendants. That is because the opinion does not adopt “a definitive definition” (and, really, should we care about any other kind?) of the disputed statutory term. The panel leaves that task to the trial court upon remand, observing that “[w]e do not know whether the government can prove that the defendants breached § 922(h).” In the end, the panel’s narrow holding is simply that compensation is not “the sine qua non of the words ’employed for’ in § 922(h).”

The battle now returns to the district court.

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Over at Sentencing Law and Policy, Doug Berman has an interesting analysis of the effects of aggressively deploying the federal death penalty in Buffalo, New York. Berman’s analysis discusses a news story that begins in the following way:

It’s hard to find a federal prosecutor anywhere in the nation who has filed as many potential death penalty cases as William J. Hochul Jr., the U.S. attorney for Western New York.

So far, none of those cases has led to an execution.

But they have cost taxpayers a bundle of money — more than $661,000 in the past year.

Berman argues, contrary to some of those quoted in the article, that these prosecutions are a sound use of taxpayer money. Here’s a taste, but as they say, read the whole thing:

If and whenever a capital prosecution prompts a murderer to plead guilty, the cost savings from avoiding a full-blown federal trial and appeals are significant and save many times more than gets spent at the outset of a federal capital prosecution.  (Though federal capital trials surely cost millions more than non-capital trials, a full-blown non-capital trial in just one big federal criminal case is likely to cost much more than the $661,000 figure being stressed here.)

In addition, it is important to keep in mind that USA William Hochul’s decision to seek a federal capital prosecution in these 24 cases results in the defendants receiving a “Cadillac” defense which should help ensure (1) there is no wrongful prosecution/conviction of an innocent defendant, (2) that prosecutors do not engage in any misconduct, and (3) that all relevant mitigating evidence is discovered as early as possible.  In other words, the extra money being spent on defense costs because of USA Hochul’s capital charging decisions likely benefit not only defendants, but also the entire federal criminal justice system, in lots of ways.  Defendants receiving a great defense from the very outset of their prosecution are far less likely to be wrongfully convicted or over-punished, which can and should save significant federal resources in the long-run.

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Earlier this week, the Fourth Circuit released an unpublished per curiam opinion in Zeno v. United States that affirms the dismissal of claims under the FTCA and state law. The Fourth Circuit held that the FTCA claims were filed late and that the state claims were barred by collateral estoppel. The panel that issued the per curiam opinion consisted of Judges Duncan and Agee, and Senior Judge Keith (of the Sixth Circuit).

One part of the ruling that may have benefited from additional elaboration was the discussion of the dismissal of the FTCA claims. The district court dismissed the FTCA claims for lack of subject-matter jurisdiction upon concluding that the plaintiffs alleged only intentional torts. The Fourth Circuit did not address this basis of the district court’s opinion, but instead affirmed on the alternative ground that the claims were filed too late. The panel treated this late filing as a defect in subject-matter jurisdiction. By doing so, the panel avoided the need to address whether the federal government’s motion to dismiss for untimeliness, filed just one week before oral argument, was itself untimely.

The Fourth Circuit relied on circuit precedent, Gould v. United States, 905 F.2d 738 (4th Cir. 1990) (en banc), that treats filing outside of the FTCA statute of limitations as a jurisdictional defect. The Gould decision, however, predates a series of cases in the past several years in which the Supreme Court has reconsidered the “jurisdictionality” of various rules.

I have not undertaken extensive independent research, but this analysis by Adam Bain (Senior Counsel, Environmental Torts Section, Torts Branch, Civil Division, United States Department of Justice) indicates that, as of November 2010, the circuits were split on the jurisdictionality of the FTCA statute of limitations. The closest on-point Supreme Court precedent appears to be John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008). In John R. Sand, the Supreme Court held that the statute of limitations for bringing claims against the United States in the United States Court of Federal Claims was jurisdictional.

It very well could be that a thorough analysis of the continuing viability of Gould in light of intervening Supreme Court jurisdictionality precedent  (or even some quick research identifying a controlling precedent containing such analysis) would reveal that the panel’s decision to treat the FTCA statute of limitations as jurisdictional was correct. But the casual invocation of Gould appears to be too quick.

It is obviously much easier, as an academic observer, to suggest that more analysis would have been helpful, than it is to decide, as a judge, how much analysis to provide. But when a court of appeals affirms on alternate grounds, and particularly when the decision on the alternate ground lets the government off the hook for a late-filed claim of untimeliness, an in-depth analysis would appear to be particularly warranted. Because those more familiar with the case could have had many reasons for concluding otherwise, I flag the jurisdictionality issue more for the purpose of bringing attention to the issue going forward than to second-guess this particular decision looking backward.

An examination of this issue by the Fourth Circuit may be warranted in an appropriate case. A quick search as I was writing this post revealed a thorough discussion of the jurisdictionality of the FTCA statute of limitations in an opinion by Magistrate Judge Auld of the Middle District of North Carolina issued this past Friday in Smith v. United States. The issue in that case is the availability of equitable tolling, not waiver or forfeiture by the government through an untimely raising of the statute of limitations, but the “jurisdictionality” characterization is important to both analyses. Guidance from the Fourth Circuit on this issue could have obviated the need for such an extensive legal analysis.


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Some challengers to the individual mandate now assert that the federal tax Anti-Injunction Act is not jurisdictional. Instead, they claim, it is a defense. From this characterization, they argue that the government has forfeited the AIA as a bar to the challenges.

The non-jurisdictional characterization of the federal tax AIA faces a number of difficulties, including the text of the statute and its authoritative construction by the Supreme Court as a jurisdictional bar (e.g., Enoch v. Williams Packing & Nav. Co., 370 U.S. 1, 5 (1962) (“The object of § 7421 (a) is to withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes.”); Bob Jones Univ. v. Simon, 416 U.S. 725 (1974) (affirming dismissal for lack of jurisdiction)) . Given these difficulties, it is not surprising to see inventive arguments about “jurisdictionality” appear in the recent cert filings.

One argument advanced by the NFIB in its response to the federal government’s cert petition in Florida v. HHS is that the Supreme Court has previously accepted the federal government’s “express ‘waiver of a defense under’ the AIA’s predecessor statute.” (NFIB BIO at 17, quoting Helvering v. Davis, 301 U.S. 619, 639-40 (1937).) The NFIB’s response does not elaborate too much on this argument–as perhaps may be expected given the setting in which the argument appears.

Although understandable, the absence of elaboration is unfortunate because a look at Helvering v. Davis suggests that the quotation lifted out of it by the NFIB has been misdeployed. The AIA provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” The suit in Helvering v. Davis was not such a suit. It was a shareholder suit against a corporation to prevent the corporation from paying a tax. As described by the Supreme Court:

This suit is brought by a shareholder of the Edison Electric Illuminating Company of Boston, a Massachusetts corporation, to restrain the corporation from making the payments and deductions called for by the act, which is stated to be void under the Constitution of the United States. The bill tells us that the corporation has decided to obey the statute, that it has reached this decision in the face of the complainant’s protests, and that it will make the payments and deductions unless restrained by a decree.

As the foregoing description indicates, the suit was not a suit brought against the federal government for the purpose of preventing the government from assessing or collecting a tax. Rather, the suit was brought against a corporation for the purpose of preventing it from paying a tax. Given the nature of the suit, it is far from obvious what relevance the government’s position as an intervenor defendant in the case has to the AIA’s status as a jurisdictional bar in Florida v. HHS. The plaintiffs in that case seek declaratory and injunctive relief against the federal government to prevent it from enforcing an exaction administered through the machinery of tax enforcement.

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The Fourth Circuit issued a published opinion today in Daily Express, Inc. v. 5K Logistics, Inc., a dispute over who should pay for damages resulting from “tube bundles” that fell off of a truck onto I-495. The opinion reverses a district court judgment (Chief Judge Spencer, EDVA) in which a shipping broker prevailed on an indemnity and contribution claim against a carrier for damages and costs owed by the shipping broker to a shipper. The Court of Appeals held that the broker failed to file a timely claim against the carrier, as required by contract and as provided for by the Carmack Amendment. Judge Wilkinson wrote the opinion, in which Judges Niemeyer and Judge Floyd joined.

The opinion begins as follows:

The Carmack Amendment to the Interstate Commerce Act,49 U.S.C. § 14706, sets up a framework for the timely filing of claims against carriers for damaged cargo. In this case, it is undisputed that neither the shipper nor the shipping broker filed either a claim or a lawsuit within the prescribed time limitations. Were we to create some exception to the statutorily authorized, contractually mandated requirements of prompt filing, we would blow a hole in the balance struck by the Carmack Amendment and undermine Congress’s intent to protect carriers against stale claims. We therefore reverse the judgment of the district court in favor of the shipping broker,and remand with instructions to dismiss the lawsuit.

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The Fourth Circuit today issued a published opinion affirming a Tax Court judgment rejecting various claims by Capital One related to taxes owed on late-fee income and deductions for projected costs of miles rewards redemptions. Judge Wilkinson wrote the opinion for the panel in Capital One Financial Corporation v. Commissioner, which was joined in by Judges Niemeyer and Floyd.

Tax law junkies can read the opinion in full. For everyone else, here a few excerpts to provide some of the flavor of the opinion, which is quite interesting even to a non-tax specialist reader:

  • “As to late-fee income, Capital One seeks to retroactively change accounting methods years after it selected and implemented an alternative method. The purported change would reduce Capital One’s taxable income for 1998 and 1999 byapproximately $400,000,000. To allow such changes without the prior consent of the Commissioner would roil the administration of the tax laws, sending revenue projection and collection into a churning and unpredictable state. Belated attempts to change accounting methods “would require recomputationand readjustment of tax liability for subsequent years and impose burdensome uncertainties upon the administration ofthe revenue laws.” Pac. Nat’l Co. v. Welch, 304 U.S. 191, 194(1938). For that reason, the Supreme Court has held that once a taxpayer has reported income according to a particular method it must live with that choice—the taxpayer has “madean election that is binding upon it and the commissioner.” Id.at 195.
  • “While we appreciate Capital One’s expressed enthusiasm for complying with the requirements of the TRA, it is impossible to overlook its financial incentives to make the retroactive change. Capital One maintains that it was not trying to obtain a better tax result but only to comply with the TRA. Capital One’s persistent effort in litigation to reduce its taxable income by approximately $400,000,000, however, speaks for itself. In all events, the alleged reason or motive for a change in method of accounting does not eliminate the need to obtain consent.”
  • “There is a line between a loan and a sale and it is important that we keep it bright. To characterize a loan as the sale of lending services is artful pleading and clever wordsmithing, but it is dubious law to say the least.”

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The Fourth Circuit yesterday released an unpublished opinion affirming the conviction of, and 400-year sentence imposed upon, Timothy Poole. Judge Duncan wrote the opinion, in which Judge Agee and Senior Judge Damon Keith (of the Sixth Circuit) joined.

Poole was convicted of several counts of mail and wire fraud, and one count of conspiracy to commit mail fraud. The heavy sentence resulted from the application of a first-degree murder cross-reference. The government alleged and proved that Poole killed his adoptive mother and her husband in an attempt to inherit from his adoptive mother’s estate. Interestingly, Poole was first arrested and charged in the state system, but was released by a part-time magistrate who found insufficient evidence to present Poole’s case to a grand jury. Earlier news coverage here and here.



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It has taken me some extra time to post about the Fourth Circuit’s en banc decision earlier this week in United States v. Vann because it has taken me a long time to get through the 100 pages of opinions. The issue in the case is whether a certain individual’s three convictions under North Carolina’s indecent liberties statute qualify as convictions for a “violent felony” under 18 U.S.C. § 924(e)(2), thereby triggering a mandatory minimum sentence under the federal Armed Career Criminal Act (“ACCA”). The short answer, for this defendant, is no. But whether any convictions for violating the indecent liberties statute can qualify as a “violent felony” in some other case remains unclear. (The write-ups by Jonathan Byrne at Fourth Circuit Blog and Matt Kaiser at his law firm’s blog provide a helpful overview of the opinions and issues.)

The simplest way of understanding the en banc decision, at one level, is in relation to the vacated panel opinion. Judge Niemeyer authored that split decision, which Judge Shedd joined. Judge King dissented. The panel opinion had affirmed the application of the ACCA 15-year mandatory minimum.

The en banc court consisted of twelve judges: Chief Judge Traxler, and Judges Wilkinson, Niemeyer, Motz, King, Gregory, Shedd, Agee, Davis, Keenan, Wynn, and Diaz. (Judge Duncan did not participate and Judge Floyd was not yet on the court.) By a 10-2 vote, the en banc court voted to vacate the sentence. The only two judges supporting the panel opinion are the two judges who joined it initially (Judges Niemeyer and Shedd). But the other 10 judges on the en banc court split 5-4-1 on their reasoning. (more…)

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The Fourth Circuit yesterday granted the motion of Ronald Evans to filed a successive habeas application based on Graham v. Florida, 130 S.Ct. 2011 (2010), in which the Supreme Court held that the Constitution forbids the imposition of a sentence of life without parole for a juvenile not convicted of homicide. The panel’s unpublished opinion explains that Evans is currently serving a sentence of life imprisonment without parole after being convicted of six narcotics crimes and a criminal conspiracy that extended some time beyond his eighteenth birthday.

The government agreed that Graham could support a successive petition in an appropriate case. But the government disputed that this was such a case. The panel’s one-paragraph unpublished per curiam opinion explains neither the basis of the government’s position nor the panel’s reasons for rejecting it. The opinion states simply that the motion is granted “[b]ecause Evans has made a ‘prima facie showing’ that his ‘claim relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable'” (quoting 28 U.S.C. 2244(b)(2)(A)).

The panel consisted of Judge Wilkinson, Judge Motz, and Judge Davis.

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As speculation continues to swirl about the timing and ultimate focus of Supreme Court review of the various rulings to date in the healthcare litigation, the time is ripe for consideration of the procedural aspects of that litigation. Although scholarly and popular attention has focused largely on the constitutional merits, the litigation over the healthcare legislation has raised important questions about the role of states as litigants, the distinction between facial and applied challenges, severability, the federal tax Anti-Injunction Act, and other issues. The University of Richmond Law Review’s 2011 Allen Chair Symposium will bring together experts from state government and academia to explore these important but unheralded issues and to situate the litigation in the broader political and regulatory landscape.

The symposium will take place on November 11, 2011 at the University of Richmond Law School. Details on registration and attendance are available here, with more information about the schedule in the conference brochure.

There are three panels scheduled:

9:30 A.M. The Role of States as Litigants in the Mandate Litigation
E. Duncan Getchell, Jr., Solicitor General of Virginia
William F. Brockman, Acting Solicitor General of Maryland
William P. Marshall, William Rand Kenan, Jr., Distinguished Professor of Law, University of North Carolina School of Law

11:15 A.M. Defining the Scope and Legal Effect of the Challenges to the Individual Mandate
Edward A. Hartnett, Richard J. Hughes Professor, Seton Hall University School of Law
Tobias A. Dorsey, Special Counsel for the United States Sentencing Commission (USSC)
Kevin C. Walsh, Assistant Professor of Law, University of Richmond School of Law

2:00 P.M. Situating the Mandate Litigation in the Broader Regulatory and Political Landscapes
Bradley W. Joondeph, Santa Clara University School of Law, Creator of the ACA litigation blog
A. Christopher Bryant, Professor of Law, University of Cincinnati College of Law
Elizabeth Weeks Leonard, Associate Professor of Law, University of Georgia Law

(For those attending the Federalist Society’s National Lawyers’ Convention, sorry for the conflict. Proceedings will be made available via live webcast for any unable to attend, and the papers will be published in a spring edition of the University of Richmond Law Review.)

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We look forward to welcoming Associate Justice Stephen Breyer to the University of Richmond School of Law tomorrow. Breyer will dedicate UR Law’s moot courtroom in honor of Judge Robert Merhige, whose courageous and steadfast judging are a true tribute to the federal judiciary. Details of Justice Breyer’s visit available here.

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I joined Bill Fitzgerald on this evening’s CBS 6 news at 7 to talk about the upcoming Supreme Court term for a few minutes. I was glad Fitzgerald gave me the chance to mention my colleague at the University of Richmond School of Law, Jack Preis, who will be arguing for the respondent in Minneci v. Pollard in November.

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The Senate cannot agree on much these days, it seems, but the Senate did unanimously agree today that Judge Henry Floyd of South Carolina should be confirmed to the United States Court of Appeals for the Fourth Circuit. James Rosen of McClatchy Newspapers has the story here. The Fourth Circuit now has 14 active judges (out of a possible 15). (HT: How Appealing)

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