Ninth Circuit Resolves Intra-Circuit Split on Standard of Review in Confrontation Clause Challenges

The California Blog of Appeal recently posted about U.S. v. Larson, --- F.3d ----, 2007 WL 2192256, case no. 05-30076 (9th Cir. August 1, 2007), an en banc Ninth Circuit court resolves a 3-way intra-circuit split on the standard of review to apply in Confrontation Clause challenges. You can read that post by visiting http://www.calblogofappeal.com/2007/08/01/en-banc-ninth-circuit-resolves-intra-circuit-split-on-standard-of-review-in-confrontation-clause-challenges/.

Here is an excerpt from the case, where the court notes a circuit split on the issue:

We begin by acknowledging an intra-circuit conflict regarding the standard of review for Confrontation Clause challenges to a trial court's limitations on cross-examination.FN5

FN5. There is also disagreement among the circuits mirroring our intra-circuit conflict. Compare United States v. Vitale, 459 F.3d 190, 195 (2d Cir.2006) (reviewing Confrontation Clause claims de novo) with United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir.2007) (publication pending) (reviewing for abuse of discretion a Confrontation Clause claim based on a limitation on cross-examination); United States v. Smith, 451 F.3d 209, 220 (4th Cir.2006) (reviewing restrictions on cross-examination claims for abuse of discretion); United States v. Tykarsky, 446 F.3d 458, 475 (3d Cir.2006) (same) and United States v. Kenyon, 481 F .3d 1054, 1063 (8th Cir.2007) (“We review evidentiary rulings regarding the scope of a cross examination for abuse of discretion, but where the Confrontation Clause is implicated, we consider the matter de novo.”) (citations omitted); United States v. Townley, 472 F.3d 1267, 1271 (10th Cir.2007) (“Although a district court's evidentiary rulings are reviewed for abuse of discretion, whether admission of such evidence violates the Confrontation Clause is reviewed de novo.”), petition for cert. filed, --- U.S.L.W. ---- (U.S. Mar. 12, 2007) (No. 06-10032).

Thanks to Greg May of The California Blog of Appeal for notifying me of this development.

8th Circuit Avoids Split Re Ineffective Assistance of Counsel When Petitioner Previously Waived Appeal Rights

Per Watson v. U.S., --- F.3d ----, 2007 WL 2049697 (8th Cir.(Mo.) Jul 18, 2007) (NO. 06-3104):

At oral argument, Watson's counsel approached the podium and announced that the government wished to make a statement. Government counsel then reported that it had recently become aware that its position ran counter to that of at least two circuits, which held that the failure of counsel to file a requested appeal amounted to ineffective assistance even if a petitioner had waived his appeal rights in a plea agreement. See Campusano v. United States, 442 F.3d 770, 775 (2d Cir.2006); United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir.2005). Because it did not wish to urge a circuit split, the government conceded that the case should be remanded to the district court for an evidentiary hearing to determine whether Watson discussed the filing of an appeal with his attorneys.

. . .

Watson claims that his counsel was ineffective in failing to honor his request to file a direct appeal. To prevail on an ineffective assistance of counsel claim, a petitioner generally must show that his counsel's performance "fell below an objective standard of reasonableness" and that he was prejudiced by this deficiency. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Where an attorney disregards specific instructions from a defendant to file a notice of appeal, he "acts in a manner that is professionally unreasonable." Flores-Ortega, 528 U.S. at 477. In such a case, prejudice is presumed because the defendant has forfeited his right to an appellate proceeding as a result of his counsel's error. Id. at 483-84. The court need not inquire into whether the intended appeal would be meritorious or likely to succeed. See Barger v. United States, 204 F.3d 1180, 1182 (8th Cir.2000).

The issue on appeal is whether the presumption of prejudice announced in Flores-Ortega applies where the petitioner has waived appellate rights as a part of a plea agreement. At the time this case was argued, the Second, Tenth, and Eleventh Circuits had all held that it does. See Campusano, 442 F.3d 770; Garrett, 402 F.3d 1262; Gomez-Diaz v. United States, 433 F.3d 789 (11th Cir.2005). The Fourth and Fifth Circuits recently joined them in that conclusion. See United States v. Poindexter, 05-7635/7636, 2007 U.S.App. LEXIS 15360 (4th Cir. June 28, 2007); United States v. Tapp, 05-30222, 2007 U.S.App. LEXIS 15343 (5th Cir. June 28, 2007). This view is most consistent with the Supreme Court's holding in Flores-Ortega that a defendant is prejudiced by the forfeiture of an appeal regardless of its apparent merit.

6th Circuit Discusses Split Re Intent Element to Prove Crime of Aiding and Abetting a Felon in Possession of a Firearm

Per U.S. v. Gardner , 488 F.3d 700 (6th Cir.(Tenn.) May 25, 2007) (NO. 05-6272)

The elements that the government must show to prove aiding and abetting are: (1) an act by a defendant that contributes to the commission of a crime; and (2) the intent to aid in the commission of the crime. Lawson, 872 F.2d at 181. Because there is evidence that Gardner brought both weapons into the car, Gardner certainly committed an act that contributed to McMillion's commission of the offense. Thus, we now consider whether Gardner had the required intent to aid in McMillion's commission of the crime.

We have yet to decide whether this element requires proof that the aider and abetter knew or should have known that the principal, McMillion in this case, was a convicted felon. The circuits are split on this question. The Ninth Circuit has held that the government need not show that the defendant knew the principal was a felon. United States v. Canon, 993 F.2d 1439, 1442 (9th Cir.1993); United States v. Graves, 143 F.3d 1185, 1188 (9th Cir.1998) ( " Canon decided the question of whether an aider and abettor is required to know of the principal's status as a felon."). Also, while the Seventh Circuit has not directly confronted this particular question, that court has held that a defendant in this type of case need only share the principal's knowledge that the principal possessed a gun. United States v. Moore, 936 F.2d 1508, 1527-28 (7th Cir.1991) ("Moore was clearly aware of Miles' use of a gun in both armed robberies and, thus, satisfied this prong of the 'aiding and abetting' test."). In contrast, the Third Circuit has held that the government must show that the defendant must know or have reasonable cause to know that the principal is a felon in order to sustain an aiding-and-abetting conviction under § 922(g). United States v. Xavier, 2 F.3d 1281, 1286 (3d Cir.1993).

The Ninth and Seventh Circuits offer little reasoning for their conclusions. In Canon, 993 F.2d at 1442 (citations omitted), the Ninth Circuit provides almost no support for its holding, writing that, because the government did not have to show that the principal knew his own felonious status, the government only had to show that the aider and abettor "associated himself with [the principal's crime], that he participated in it as in something that he wished to bring about, [and] that he *715 [sought] by his action to make it succeed." The Seventh Circuit followed similar reasoning, holding in passing that, because the "required state of mind" for a principal's § 922(g) violation is that the principal "knowingly possessed the gun," the government must only show that the aider and abettor knew the principal possessed the gun. Moore, 936 F.2d at 1526-28 (citations omitted).

The Third Circuit decision, in contrast, is well-reasoned and we concur with it.

S.D.N.Y. Notes Split Re Public Disclosure of Fraud Allegations in Qui Tam Actions Under the False Claims Act

Per U.S. ex rel. Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, --- F.Supp.2d ----, 2007 WL 2012901 (S.D.N.Y. Jul 13, 2007) (NO. 06 CIV 2860 DLC):

To determine whether the statutory bar to jurisdiction applies, a court must examine, among other issues, whether there was a "public disclosure" of the wrongdoing, and whether that disclosure occurred in one of the ways listed in the statute [the False Claims Act]. Doe, 960 F.2d at 323. "[A]llegations of fraud are publicly disclosed when they are placed in the 'public domain.' " Id. at 322 (citation omitted). This requirement precludes "qui tam suits based on information that would have been equally available to strangers to the fraud transaction had they chosen to look for it as it was to the relator." Kreindler & Kreindler, 985 F.2d at 1158 (citing United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1155-56 (3d Cir.1991)).

Insofar as the manner of public disclosure is concerned, the modes include state and federal hearings and trials, and federal government reports, hearings, audits, and investigations. See, e.g., Kreindler & Kreindler, 985 F.2d at 1158 (civil lawsuit filed in federal court); Doe, 960 F.2d at 323 (federal government agency investigation). The Second Circuit has not yet addressed whether state government reports, hearings, audits, and investigations are also encompassed by the jurisdictional bar, and other circuits are divided on the issue. Compare United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745 (3d Cir.1997) ("Congress was not referring to administrative reports produced by non-federal government sources."), with United States ex rel. Bly-Magee v. Premo, 470 F.3d 914, 918 (9th Cir.2006) (agreeing with the Eighth Circuit in Hays v. Hoffman, 325 F.3d 982, 988 (8th Cir.2003), that audit reports prepared by a state agency may be public disclosures).

M.D. Tennessee Notes Intra-Circuit Split Re Whether Court May Release Defendant Pending Sentencing for Exceptional Reasons

Per U.S. v. Mellies, --- F.Supp.2d ----, 2007 WL 2021947 (M.D.Tenn. Jul 10, 2007) (NO. 3:05-00132):

In an unpublished opinion, United States v. Cook, 42 Fed.Appx. 803, 804 (6th Cir.2002), the United States Court of Appeals for the Sixth Circuit held in light of the authority from other circuits that a district judge is not precluded from making a determination of exceptional circumstances in support of release under § 3145(c). The United States Court of Appeals for the First Circuit held similarly in another unpublished opinion. United States v. Weiner, 972 F.2d 337 (1st Cir.1992) (unpublished).

. . .

The Sixth Circuit unpublished opinion indicates that the circuit court may eventually issue a published opinion following the other circuits. Nonetheless, district courts within the Sixth Circuit are split on whether district courts may apply § 3145(c). Compare Salazar, 2007 WL 542390 (W.D.Ky.2007), Burnett, 76 F.Supp.2d 846 (E.D.Tenn.1999), and Rodriguez, 50 F.Supp.2d 717 (N.D.Ohio 1999) (applying § 3145(c)) with In re Sealed Case, 242 F.Supp.2d 489 (E.D.Mich.2003) (holding district court lacks jurisdiction under § 3145(c)).

N.D. Illinois (Banktcy Ct.) Notes Split Re Debt Dischargability for Intentional Breach of Contract In Chapter 7 Bankruptcy Proceedings

Per In re Salvino, Slip Copy, 2007 WL 2028577, (Bankr.N.D.Ill. Jul 09, 2007) (NO. 05-B-61546, 06-A-1092):

Section 523(a)(6) excepts from discharge debts for "willful and malicious injury by the debtor to another entity or to the property of another entity." Whether Acquisition's $1.5 million claim for breach of contract is nondischargeable under this provision depends on the extent to which "willful and malicious injury" encompasses intentional breaches of contract. The circuits are split on this question.

The Fifth Circuit holds that any breach of contract is nondischargeable as a willful and malicious injury if the debtor either intended to injure the other party to the contract by breaching it or if injury to the other party was "substantially certain" to result from the breach; tortious conduct is not required. See In re Williams, 337 F.3d 504, 510 (5th Cir.2003) ( "[D]ischargeability of contractual debts under Section 523(a)(6) depends upon the knowledge and intent of the debtor at the time of the breach, rather than whether conduct is classified as a tort....").

The Ninth Circuit, on the other hand, holds that "to be excepted from discharge under § 523(a)(6), a breach of contract must be accompanied by some form of 'tortious conduct' that gives rise to 'willful and malicious injury." ' In re Jercich, 238 F.3d 1202, 1206 (9th Cir.2001). Unreported decisions from the Sixth and Tenth Circuits are similarly split. FN7 The Seventh Circuit has not addressed the question.

FN7. Compare In re Sanders, No. 99-6396, 2000 WL 328136 (10th Cir. Mar. 29, 2000) (tortious conduct not required for "willful and malicious injury" under § 523(a)(6)) with In re Best, No. 03-5098, 2004 WL 1544066 (6th Cir. June 30, 2004) (breach of contract unaccompanied by tortious conduct cannot be a "willful and malicious injury"). An unpublished decision of the Fifth Circuit holds, contrary to Walker, that tortious conduct is required for § 523(a)(6) nondischargeability, citing Jercich for that rule. In re Deasy, No. 02-11200, 2003 WL 21018189 at *1 (5th Cir. Apr. 18, 2003) ("[A] bare breach of contract claim fails, as a matter of law, to establish ... a 'willful and malicious injury' for purposes of § 523(a)(6).").

Third Circuit Notes Split Re Interpretation of "Credit for Time at Liberty" Doctrine

Per Vega v. U.S., --- F.3d ----, 2007 WL 1989362 (3rd Cir.(Pa.) Jul 11, 2007) (NO. 05-5105):

The principal issue before us is whether Vega should receive credit toward his federal sentence for the nearly two years he spent at liberty as a result of his erroneous release from the state penitentiary system. Vega proposes that his two periods of incarceration should have run continuously, and thus, the unintentional lapse between the two sentences entitles him to have the intervening period of liberty counted toward his federal sentence. This proposition finds support in the case law of other circuits, where it is alternately referred to as the "rule" or the "doctrine" of credit for time at liberty. The origin of the rule in federal case law can be traced to White v. Pearlman, 42 F.2d 788 (10th Cir.1930). In that case, the Tenth Circuit established that "where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, [ ] his sentence continues to run while he is at liberty." FN2 Id. at 789. However, the court noted that "[a]s to whether a prisoner, who knows a mistake is being made and says nothing, is at fault, we do not now consider." Id.

FN2. A number of circuits, including our own, have adopted the holding in White. See Free v. Miles, 333 F.3d 550, 554 (5th Cir.2003) ("[I]nadvertent prisoner releases ... present circumstances that courts have repeatedly held to be deserving of credit for time served."); United States ex rel. Binion v. O'Brien, 273 F.2d 495, 498 (3d Cir.1960).

While courts vary in their interpretation and application of the rule, most agree that a mere delay in the commencement of a sentence is insufficient to give a prisoner the right to credit for time at liberty. Most recently, in Leggett v. Fleming, 380 F.3d 232 (5th Cir.2004), the Fifth Circuit reiterated that "we have also held that a delay in the commencement of a sentence by itself does not constitute service of that sentence." Id. at 234; but see Smith v. Swope, 91 F.2d 260, 262 (9th Cir.1937) ("The prisoner is entitled to serve his time promptly if such is the judgment imposed, and he must be deemed to be serving it from the date he is ordered to serve it and is in the custody of the marshal under the commitment, if, without his fault, the marshal neglects to place him in the proper custody."). FN3

FN3. However, some courts have held that if the authorities cause an excessive delay in the commencement of a sentence, they may waive jurisdiction of their right to execute a sentence. See Shields v. Beto, 370 F.2d 1003, 1004-06 (5th Cir.1967) (noting that "delay in execution of a sentence is repugnant to the law").

. . .

[I]in order for a prisoner to receive credit for time he was erroneously at liberty, the prisoner's habeas petition must contain facts that demonstrate that he has been released despite having unserved time remaining on his sentence. Once he has done this, the burden shifts to the government to prove either (1) that there was no negligence on the part of the imprisoning sovereign, or (2) that the prisoner obtained or retained his liberty through his own efforts. This test is similar to tests created by our sister circuits who have addressed the issue.