The decision begins: “This appeal tests the temporal and relational limits of prior conduct as a sentencing enhancement.” That seems to be putting it mildly. In U.S. v. Garner, case no. 06-10417 (June 18, 2007), the Ninth Circuit allows the defendant’s sexual abuse of his children more than 35 years ago to be considered in enhancing his sentence for attempted receipt and distribution of child pornography. The court finds no time or relationship limitations built into the “pattern of activity involving the sexual abuse or exploitation of a minor” requirement for enhancement under section 2G2.2(b)(5) of the Sentencing Guidelines. Nothing from Ninth Circuit Blog yet (which is almost certain to…
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Claiborne Case Sparks Debate
In Claiborne v. U.S., case no. No. 06–5618 (June 4, 2007), the U.S. Supreme Court decided that the death of the petitioning criminal defendant rendered the case moot, and thus it vacated the judgment of the Eighth Circuit Court of Appeals that had reversed the district court’s downward adjustment from the federal sentencing guidelines. The order itself tells you nothing about the case, so I suggest you start with Kimberly A. Kralowec at The Appellate Practitioner, who provides a brief rundown, from which it makes sense next to check this SCOTUSBlog post from before the ruling, describing efforts by a similarly situated petitioner to save the Claiborne case despite its…
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Ninth Circuit Panel Splits on Appellate Jurisdiction over Denial of FSIA Immunity Claimed via Res Judicata
The Ninth Circuit tackles a question of appellate jurisdiction in Gupta v. Thai Airways International, case no. 04-56389 (May 30, 2007). The riddle — which the majority overlooks until it responds to the dissent — arises from the intersection of res judicata and the “collateral order” exception to the final judgment rule. Thai Airways contended in its motion to dismiss for lack of subject matter jurisdiction in the district court that it was immune from suit under the Foreign Sovereign Immunities Act (the airline is 76% owned by the Thai government) . The airline contended that an identical state court action brought by Gupta was res judicata on this issue…
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The Proper Action When an Appeal is Mooted
Offering a concise lesson on when a moot federal appeal should be dismissed and when it shouldn’t is the Ninth Circuit’s decision in NASD Dispute Resolution, Inc. v. Judicial Council of the State of California, case no. 02-17413 (May 30, 2007). Fearing that new standards for California arbitrators imposed by the Judicial Council would make its arbitrations in California more difficult, NASD and the New York Stock Exchange sought a declaratory judgment that the California standards were preempted by federal securities laws, could not constitutionally be applied to the plaintiffs’ arbitration programs, and were not applicable to those programs as a matter of state law. The district court dismissed the…
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Child Pornographer Remains Anonymous In Ninth Circuit Ruling – and Limits His Restitution Exposure by Exploiting Developing World Victims (Updated)
Appellate Law & Practice and Decision of the Day both report on what the latter calls a “remarkable decision” today from the Ninth Circuit. Both write about the fact that in United States v. Doe, case no. 05-50474 (May 29, 2007), the Ninth Circuit allows the defendant — a child pornographer who pleaded guilty to molesting and photographing young teen boys on his trips outside the U.S. — to remain anonymous in the disposition of the appeal. Both bloggers recognize that anonymity was probably a condition of the defendant’s guilty plea (although the decision never says). Decision of the Day is appalled that the circuit judges would allow this, especially…
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Ninth Circuit Takes Appellate Jurisdiction over Pretrial Stay Orders
A whole lot of insurance companies sue a whole lot of doctors and clinics. The insurers allege that the defendants gave away cash and vacation packages to lure patients into undergoing unnecessary procedures, for which defendants billed the plaintiff insurers, who paid millions on the claims. Several individual defendants are also facing criminal prosecution and move to stay the civil proceedings because discovery would implicate their Fifth Amendment rights. The clinics say they can’t put on an adequate defense if the action is stayed only as to the individuals facing prosecution, so they, too, ask for a stay of the proceedings. The district court obliges the stay requests — apparently…
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Effective Cert Petitions in the Absence of a Direct Circuit Split
SCOTUSblog has an update to its earlier post on drafting effective cert petitions in the absence of a direct circuit split. The post links to the most recent podcast and provides all the information you need to get up to date on SCOTUSblog’s coverage of this topic. It also provides instructions for subscribing to SCOTUSblog’s podcasts, several of which have covered other aspects of cert petition drafting.
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FRCP Amendments Approved and Transmitted to Congress
The Supreme Court approved amendments to the Federal Rules of Civil Procedure and transmitted those amendments to Congress on April 30. They will take effect December 1, 2007 unless Congress legislates their rejection, modification, or deferral. Rules 1-86 were “restyled” — revised with the intent to make them easier to read and understand without substantively changing them. For example, rule 59, governing new trial motions, is amended so subsection (a) is changed from a single, lengthy paragraph into paragraphs (a)(1)(A), (a)(1)(B), and (a)(2). Not only easier on the eyes, but much easier to comprehend. The amendments contain substantive changes as well, but none directly relating to the rules regarding entry…
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A Chemistry Lesson Resolves an Issue of First Impression in a Drug Case
In U.S. v. Hollis, case no. 05-30611 (May 7, 2007), the Ninth Circuit holds that under the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), under which “any fact [other than the fact of a prior conviction] that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt,” a defendant charged with distribution of a controlled substance (21 U.S.C. § 841(a)) cannot be subject to the higher sentencing standard for distribution of a “cocaine base” with a prior felony drug conviction (21 U.S.C. § 841(b)(1)(A)) unless the government pleads and proves that the cocaine base…
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New FRAP and Ninth Circuit Rules Available
The Ninth Circuit website has posted the latest version (May 2007) of the Federal Rules of Appellate Procedure and Local Circuit Rules. They can be downloaded here. Maybe I shouldn’t look a gift horse in the mouth, but it would be nice if the PDF file had internal links to make it a little easier to jump from one rule to another referenced within it, or from the table of contents to the listed rule. But this PDF file is a nice resource nonetheless.
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Is it Futile to Cite Federal District Court Opinions? (Updated)
At How Appealing, Howard Bashman gives us this post about citing to district court opinions. He quotes a Seventh Circuit opinion decided yesterday that admonishes lawyers not to cite district court opinions, because they “lack authoritative effect,” and instead to incorporate “into their own presentations” whatever persuasive rationale is offered in the opinion. Bashman appears to doubt lawyers will heed this advice: The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited. I think he’s right. And…
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The Ninth Circuit’s Split Personality on Deadline for Removal
Professor A. Robert Benjamin of the University of Richmond School of Law runs a blog every federal practitioner should love. The Split Circuits blog is a fine resource on — you guessed it — splits among the federal circuits. In a post earlier this month, Professor Benjamin pointed out a split of authority within the Ninth Circuit on the deadline for removing a state court lawsuit to federal court. Under 28 U.S.C. § 1446(b), the notice of removal must be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such…
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Ninth Circuit: Prior Conviction of Any Age May be Used to Enhance Sentence for Illegal Entry
Joining the Tenth and Eleventh Circuits, the Ninth Circuit holds that there is no limit on the age of convictions that may be used under section 2L.1.2 of the 2003 Sentencing Guidelines to enhance a sentence on a conviction for entering or remaining in the United States illegally. The defendant in this case was apprehended in 2003 and the trial court correctly considered convictions from 1972 and 1976. The case is United States v. Olmos-Esparza, Ninth Circuit case no. 06-50276 (April 24, 2007). UPDATE: Jon Sands at Ninth Circuit Blog gives his detailed take on the case here. CORRECTION: The author at Ninth Circuit Blog is Steve Kalar, posting here.
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When is a Bankruptcy Court Order an Appealable Final Judgment?
The Ninth Circuit gives a good summary of the rules applicable to this question in In re Brown, case no. 05-15605 (April 26, 2007). The court held that a minute order granting a creditor’s motion for summary judgment in an adversary action was an interim order that did not constitute a final judgment and thus did not trigger the time for debtor to appeal. The case gives excellent guidance for evaluating the language of an order and the procedural posture of the case as aids in determining appealability.