Circuit Splits

Top 10 Posts of 2012

As this blawg's first full year comes to a close, I thought I would put together the following list of the ten most popular posts of 2012:

1.    Should Law Schools Focus on Lawyering Skills? (May 16, 2012)

2.    D.C. Circuit Joins Split Over the Preservation of Purely Legal Issues for Appeal                         (Aug. 1, 2012)

3.    100 Appellate Law Twitter Feeds to Follow (Apr. 17, 2012)

4.    6th Circuit Joins Split Over Ineffective Counsel Claims Arising from the Failure to File                 Appeal (July 23, 2012)

5.    Occupy the Docket: How the Supreme Court Selects the 1% (May 24, 2012)

6.    Federal Circuit Declines Chance to Eliminate Split Involving Standard of Review,                       Prompting Blistering Dissent (Dec. 10, 2012)

7.    140 Writing Tips From the "Brief of the Century" (Mar. 27, 2012)

8.    D.C. Circuit Creates Circuit Split Over Graphic Cigarette Warning Labels (Aug. 27, 2012)

9.    Can Prosecutors Use a Defendant's Pre-Arrest Silence as Evidence of Guilt?                             (Aug. 9, 2012)

10.   Copy-and-Paste: the Role of Judicial Clerks in Shaping Precedent (Aug. 29, 2012)

 

3rd Circuit Considers Constitutionality of Rule Barring Testimony About Jury Racial Bias

Federal Rule of Civil Procedure 606(b) generally prohibits jurors from testifying about their “mental processes concerning the verdict or indictment” when the validity of their verdict or indictment has been called into question. Yesterday the Third Circuit addressed “a split of authority as to whether and when Rule 606(b) is constitutional when applied to bar testimony about jury racial bias.” United States v. Shalhout, Nos. 12-1076 & 12-1077 (3d Cir. Dec. 18, 2012) (nonprecedential).

Writing for the panel, Judge Thomas Hardiman summarized the split as follows:

The Courts of Appeals for the First and Seventh Circuits have found that Rule 606(b) is sometimes unconstitutional when applied to bar testimony about racial bias. See Villar, 586 F.3d at 87; Shillcutt, 827 F.2d at 1159. On the other hand, the Tenth Circuit has suggested, without explicitly finding, that Rule 606(b) is always constitutional. See Benally, 546 F.3d at 1241.

The court ultimately avoided widening the 2-1 split, explaining,

We need not decide which approach is correct because we find that Rule 606(b) is constitutional as applied to bar the evidence of racial bias in this case. The courts in both Villar and Shillcutt found that Rule 606(b) would be unconstitutional only in “rare” cases where the evidence of racial bias would be strong enough to call into question whether the defendant received a fair trial. See Villar, 586 F.3d at 88; Shillcutt, 827 F.2d at 1159.

Both courts found that stray comments do not render Rule 606(b) unconstitutional. See Villar, 586 F.3d at 87 (“[W]e emphasize that not every stray or isolated off-base statement made during deliberations requires a hearing at which jury testimony is taken.”); Shillcutt, 827 F.2d at 1159 (finding that Rule 606(b) was constitutional as applied to bar evidence of a single juror’s comment that: “Let’s be logical; he’s a black, and he sees a seventeen year old white girl—I know the type.”).

Here, the Shalhouts’ evidence consists of one racial statement by Juror 62, a non- deliberating alternate juror. The Shalhouts have also presented Halliday’s vague allegations that two or three deliberating jurors made racial comments. However, Halliday could not remember anything about any of the deliberating jurors who allegedly made the racial statements apart from the fact that they were male. Thus, the Shalhouts’ evidence squarely falls within the category of stray comments that can be constitutionally barred by Rule 606(b). See Villar, 586 F.3d at 87.

You can read the full opinion here: United States v. Shalhout, Nos. 12-1076 & 12-1077 (3d Cir. Dec. 18, 2012) (nonprecedential).

Circuits Split Over Standard of Review Involving the Denial of an Advice-of-Counsel Jury Instruction

Today's post looks at the latest opinion in a series of recent opinions that discuss splits in authority over appropriate standards of review (see here and here). Last Friday in United States v. Powers, the First Circuit addressed an intercircuit conflict involving the appropriate standard for reviewing a district court's refusal to give an "advice-of-counsel" jury instruction in a criminal case. 

When a defendant's argument at trial boils down to, "My attorney advised me that it was okay to proceed, so I did.", a defendant may ask the court to give the jury such an instruction. When the court's response is "No.", should an appellate court review the lower court's determination de novo or apply an abuse-of-discretion standard? As the following paragraph from Powers demonstrates, it depends: 

These same rules are used for the defense of good faith reliance on the advice of counsel. See United States v. Christopher, 142 F.3d 46, 55 (1st Cir. 1998). We review these determinations de novo. See United States v. Howard, 687 F.3d 13, 18 (1st Cir. 2012); United States v. Sánchez-Bérrios, 424 F.3d 65, 76 (1st Cir. 2005); Rodriguez, 858 F.2d at 812. This is different from the abuse of discretion standard in some other circuits. See, e.g., United States v. Bush, 626 F.3d 527, 538-39 (9th Cir. 2010). There is no claim the good-faith instruction was flawed.

You can read the full opinion here: United States v. Powers, Nos. 11-2295 & 11-2359 (1st Cir. Dec. 14, 2012).

Circuit Splits Roundup

For the latest coverage of noteworthy issues dividing the federal courts, check out the following links:

• Robert A. Horowitz, Supreme Court again set to resolve a circuit split over the enforceability of mandatory class arbitration waivers, lexology.com (Dec. 6, 2012).

• Michelle Olsen, Circuit Split Watch: Press Access Not a Slam Dunk, Appellate Daily (Dec. 5, 2012).

• Meghan Milloy, 5th Circuit Splits with Other Federal Courts on CAFA and Attorney General Suits, The Legal Pulse (Dec. 10, 2012).

Federal Circuit Declines Chance to Eliminate Split Involving Standard of Review, Prompting Blistering Dissent

Last month I wrote about an intercircuit conflict over the appropriate standard of review for reviewing hearsay rulings (here). A similar circuit split exists over the appropriate standard of review for reviewing a district court’s decision to award enhanced damages and attorneys’ fees.

Unlike its sister circuits, the Federal Circuit reviews such decisions de novo. See Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., 682 F.3d 1003, 1005 (Fed. Cir. 2012). Last week the Federal Circuit denied rehearing en banc in Highmark, Inc. v. Allcare Health Management System, reaffirming its position in the circuit split. No. 2011-1219 (Fed. Cir. Dec. 6, 2012).

Judge Kimberly Ann Moore—with whom Chief Judge O’Malley and Judges Rader, Reyna, and Wallach joined—dissented to the circuit’s refusal to reconsider the issue en banc. The dissent’s opening paragraph packs quite a punch: 

Contrary to our precedent, the divided Highmark panel decided that a district court's exceptional case finding—based on its determination that the infringement claims asserted at trial were objectively baseless—is entitled to no deference and should be reviewed de novo. Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 687 F.3d 1300, 1309-10 (Fed. Cir. 2012). Because Highmark deviates from precedent, invades the province of the fact finder, and establishes a review standard for exceptional case findings in patent cases that is squarely at odds with the highly deferential review adopted by every regional circuit and the Supreme Court in other areas of law, I dissent from the denial of rehearing en banc.

“Not surprisingly,” Judge Moore explained, “given the clear direction from the Supreme Court, the regional circuits are unanimous that the issue of objective reasonableness under Rule 11 is to be reviewed deferentially by the appellate courts.⁴” 

⁴ See, e.g., Whitehead v. Food Max of Miss., Inc., 332 F.3d 796, 802-03 (5th Cir. 2003) (determining compliance with Rule 11 is "an objective, not subjective, standard of reasonableness under the circumstances" and concluding that the "district court is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard mandated by Rule 11" (citation omitted)); see also CQ Int'l Co., Inc. v. Rochem Int'l, Inc., USA, 659 F.3d 53, 62-63 (1st Cir. 2011); Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, LTD., 682 F.3d 170, 177-78 (2d Cir. 2012); In re Taylor, 655 F.3d 274, 282-83 (3d Cir. 2011); Merritt v. Int'l Ass'n of Machinists & Aerospace Workers, 613 F.3d 609, 626-27 (6th Cir. 2010); Ross v. City of Waukegan, 5 F.3d 1084, 1088-89 (7th Cir. 1993); Clark v. United Parcel Serv., 460 F.3d 1004, 1010-11 (8th Cir. 2006); G.C. & K.B. Invs., Inc. v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003); Dodd Ins. Servs., Inc. v. Royal Ins. Co. of Am., 935 F.2d 1152, 1155 (10th Cir. 1991); Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003).

Judge Timothy Dyk, with whom Judge Pauline Newman joined, responded to the criticisms expressed by their dissenting colleagues in a concurring opinion:

Judge Moore, Judge Reyna, and Judge Mayer in his panel dissent, urge that both this decision and Bard are inconsistent with our prior authority. This is incorrect. More fundamentally, they assert that the de novo standard is inconsistent with the Supreme Court's decisions in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990), and Pierce v. Underwood, 487 U.S. 552, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988), which dealt with the standard of review for awards of attorneys' fees under Rule 11 and the Equal Access to Justice Act ("EAJA"). But those cases arose in quite different contexts, and are no basis for reading sections 284 and 285 as requiring deference to district courts on the objective reasonableness issue.

The Supreme Court has a history of reversing Federal Circuit decisions, so keep this one on your radar.

Circuit Split Roundup

For the latest coverage of noteworthy issues dividing the federal courts, check out the following links:

• Jack Townsend, Circuit Splits on Defense Witness Immunity, Federal Tax Crimes (Dec. 3, 2012).

• Kerry A. Brennan & Alexander Parachini, Circuit Split in Enforceability of Arbitration Clauses in Bankruptcy Left Unresolved, jdsupra.com (Nov. 29, 2012).

• Rudolph J. Di Massa, Jr., United States: Supreme Court To Address Circuit Split Over 'Defalcation' Meaning, mondaq.com (Nov. 29, 2012).

• Minnesota Divorce Lawyer, Supreme Court to resolve circuit split in Hague Convention cases, FindLaw KnowledgeBase (Dec. 4, 2012).

4th Circuit Confronts Split Over Extradition Rule of Specialty

Last week in United States v. Day, the Fourth Circuit called attention to a circuit split over the extradition rule of specialty found in the United States–Mexico Extradition Treaty. The Treaty provides that “a person extradited under [the Treaty] shall not be detained, tried or punished in the territory of the requesting Party for an offense other than that for which extradition has been granted.”

The defendant in Day argued that the aiding and abetting jury instruction in his case violated the extradition rule of specialty “because Mexico did not grant—or even consider—extradition on the basis of aiding and abetting liability.”

As the Fourth Circuit noted, "the circuits are split on the question of whether an individual defendant has standing to raise a specialty violation, and the Fourth Circuit has yet to rule on the matter. United States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992).”

The court summarized the split as follows (but refrained from joining it):

The courts that have declined to find individual standing take the view that "only an offended nation can complain about the purported violation of an extradition treaty." United States v. Kaufman, 874 F.2d 242, 243 (5th Cir. 1989) (per curiam) (denying petition for rehearing and suggestion for rehearing en banc); see also, e.g., Shapiro v. Ferrandina, 478 F.2d 894, 906 (2d Cir. 1973). In contrast, other courts have held that an individual "may raise whatever objections the extraditing country would have been entitled to raise." United States v. Cuevas, 847 F.2d 1417, 1426 (9th Cir. 1988); see also, e.g., United States v. Diwan, 864 F.2d 715, 721 (11th Cir. 1989). 

Because we conclude that Day's specialty argument fails on the merits, however, we need not resolve the government's standing argument now.

You can read the full opinion here: United States v. Day, No. 11-5218 (4th Cir. Nov. 29, 2012).