Wow.
You'll rarely read a more strongly worded -- and powerful -- opinion than this one.
There are only a few opinions that make me think that I'm terrible as a writer. This is one of them.
Well done, Justice Raye.
Friday, July 13, 2012
Dennis v. Berg (9th Cir. - July 13, 2012)
Here's a wide-ranging opinion that disapproves a class action settlement -- alongside the award of attorney's fees therein. It should (and will) strike fear in the heart of class action attorneys who litigate in federal court.
It's not that Judge Trott's concerns are misdirected. It's not that they're unprecedented. But the truth is that the class action settlement here was better -- indeed, a lot better -- than many class action settlements that are routinely approved. And still failed. On appeal, no less.
If you're a consumer class action plaintiff's lawyer, that's scary.
Even in this particular case, the Ninth Circuit's holding isn't fatal. The parties will have to rework their agreement, and be more specific in places. But that's doable. Plus, Judge Trott catches only some of the tricks used in these types of agreements; others get let go. So, in the future, those will become even more pervasively employed.
The real losers here are plaintiffs' counsel. They may well have to take a lower fee. But, in the future, they'll just know that they'll have to churn the case. Something that's hardly unprecedented anyway. It's inefficient, to be sure, but it largely avoids the problem here.
I actually appreciate Judge Trott's inquiry here. It's refreshing. I'm not sure it gets to the heart of the problem, to be honest. And it's got its downsides.
But it's a start.
It's not that Judge Trott's concerns are misdirected. It's not that they're unprecedented. But the truth is that the class action settlement here was better -- indeed, a lot better -- than many class action settlements that are routinely approved. And still failed. On appeal, no less.
If you're a consumer class action plaintiff's lawyer, that's scary.
Even in this particular case, the Ninth Circuit's holding isn't fatal. The parties will have to rework their agreement, and be more specific in places. But that's doable. Plus, Judge Trott catches only some of the tricks used in these types of agreements; others get let go. So, in the future, those will become even more pervasively employed.
The real losers here are plaintiffs' counsel. They may well have to take a lower fee. But, in the future, they'll just know that they'll have to churn the case. Something that's hardly unprecedented anyway. It's inefficient, to be sure, but it largely avoids the problem here.
I actually appreciate Judge Trott's inquiry here. It's refreshing. I'm not sure it gets to the heart of the problem, to be honest. And it's got its downsides.
But it's a start.
Thursday, July 12, 2012
In Re ATM Fee Antitrust Litigation (9th Cir. - July 12, 2012)
Imagine that there's an illegal conspiracy to inflate the fees paid when a consumer uses an ATM machine owned by a different bank than the one in which the consumer holds an account. Imagine also that one of these fees is technically paid by the card-issuing bank, but then is passed on to the consumer. Finally, let's assume that these illegal fees amount to millions -- maybe hundreds of millions -- of dollars.
These are not, by the way, implausible assumptions. At all.
Can you or I sue for the illegal antitrust conspiracy?
The Ninth Circuit holds we can't. Nor can any of the other tens of millions of consumers injured by this illegal conspiracy to violate the Sherman Act.
We can't because we're "indirect purchasers" and it's plausible that the banks themselves -- the only ones with standing -- will sue.
Mind you, the conspiracy has been ongoing since the dawn of the twenty-first century, and many millions of dollars later, the banks still have not actually sued. They're apparently just fine to pass on the costs to all of use, and we're happy to pay them.
But don't worry. It's plausible that they'll sue. And get the money back (and keep it for themselves). And in the meantime, we get to keep paying the passed-on illegal fees.
These are not, by the way, implausible assumptions. At all.
Can you or I sue for the illegal antitrust conspiracy?
The Ninth Circuit holds we can't. Nor can any of the other tens of millions of consumers injured by this illegal conspiracy to violate the Sherman Act.
We can't because we're "indirect purchasers" and it's plausible that the banks themselves -- the only ones with standing -- will sue.
Mind you, the conspiracy has been ongoing since the dawn of the twenty-first century, and many millions of dollars later, the banks still have not actually sued. They're apparently just fine to pass on the costs to all of use, and we're happy to pay them.
But don't worry. It's plausible that they'll sue. And get the money back (and keep it for themselves). And in the meantime, we get to keep paying the passed-on illegal fees.
Michelman v. Lincoln Ins. Co. (9th Cir. - July 12, 2012)
If you want to harken back to your first year of law school, and love reading a good interpleader case, here you go.
It's the story of a deceased child, a life insurance company, and ex-spouses who don't like each other.
What a way to start the morning.
It's the story of a deceased child, a life insurance company, and ex-spouses who don't like each other.
What a way to start the morning.
Wednesday, July 11, 2012
SASCO v. Rosendin Electric, Inc. (Cal. Ct. App. - July 11, 2012)
As long as you hire good attorneys, there's no way you're going to get spanked for two attorney's fees awards of a half-million dollars each (in two different lawsuits) as a result of your decision to file a trade secrets lawsuit against a competitor that hired some of your employees, right?
Wrong.
Baseless litigation. Subjective bad faith. Ouch.
Wrong.
Baseless litigation. Subjective bad faith. Ouch.
Tuesday, July 10, 2012
Melissa R. v. Superior Court (Cal. Ct. App. - July 10, 2012)
This is exactly what's wrong with textualism.
A California statute says that you don't have to be provided with full reunification services with your child if a previous child of yours was removed "pursuant to Section 361" and the court found that this prior removal was because you (essentially) didn't even try. That provision makes sense. The basic point of the statute is to say that we'll still give you a shot at getting your kid back, but we're not going to give you the full panoply of rights -- and keep the kid in additional limbo for years -- when it's fairly clear based on past experience that you're not going to do what's required to keep your child (e.g., stop shooting heroin and meth).
But what if your prior child was removed in a different state rather than California? Is that a removal "pursuant to Section 361"?
The Court of Appeal here says, categorically, no. Here's what Justice Margulies says:
"In our view the language of section 361.5 is clear and unambiguous, rendering it unnecessary to resort to any extrinsic aids. The plain language of the statute is limited to cases involving the removal of a sibling or half sibling from the parent "pursuant to Section 361." (Italics added.) The Legislature
did not include any language that would permit the extension of this provision to a circumstance in which a sibling was previously removed pursuant to the dependency law of another jurisdiction, whether or not that law is comparable to section 361. It is undisputed here that a half sibling of C.R. was previously removed from Mother‘s custody pursuant to Wisconsin law, not pursuant to Section 361. The clear language of section 361.5, subdivision (b)(10) does not apply to these facts."
With respect, I strongly disagree.
It's not that the phrase "pursuant to Section 361" doesn't have meaning. It does. But that language is in no way as categorically dispositive as the Court of Appeal frames it.
Imagine, for example, that Wisconsin has the exact same statute as California. Even calls it the exact same thing: "Section 361". You mean to tell me that if the statutory scheme is identical, the judicial findings exactly the same, and the facts exactly on point, the statute requires a different result merely because the judge in one case was in California and the judge in another was in Wisconsin? That's silly. Both as a practical matter as well as an interpretive one. It's not remotely what the Legislature would have envisioned. (And, parenthetically, even if it did, I think such a statutory regime might well violate the Full Faith and Credit Clause.)
The whole "statute is unambiguous so that's the end of the matter" line simply doesn't work. It's no different than if the Legislature had amended the statute so that the first child was taken away under "Section 360" -- a statute subsequently renumbered to 361. Doesn't matter. Same intent. Same purpose. Same result. Purportedly "unambiguous" statute notwithstanding.
So the Scalia/Thomas-like analysis here is, I think, simply wrong. Profoundly so. To say that the mere fact that we're talking about an initial removal in Wisconsin makes the statute categorically inapplicable not only elevates form over substance, but does so both erroneously and perniciously.
That said, the Court of Appeal may perhaps reach the right result in this particular case. Later on in the opinion, Justice Margulies argues that Wisconsin's statutory regime may contain provisions that are substantively different than California's. So be it. If Wisconsin doesn't have an analogue -- and a darn close one -- to Section 361, then that's indeed dispositive.
But that's the relevant question. Not the mere fact that the removal was in Wisconsin rather than in California.
And yes, yes, I know that the Legislature could have easily said "a statute like Section 361" or something like that. But guess what? Sometimes the Legislature doesn't think of everything. Or employs shorthand. Or relies on -- wait for it -- the judiciary to employ common law construction. How crazy is that?
Not very, in my view. Not at all.
So I think this opinion makes a textbook (and serious) error. But one that is, unfortunately, increasingly common. Despite the fact that it may well reach the right result.
The only danger is that someone will actually believe what the Court of Appeal says and think that, yep, text like this is both unambiguous and categorically dispositive.
A California statute says that you don't have to be provided with full reunification services with your child if a previous child of yours was removed "pursuant to Section 361" and the court found that this prior removal was because you (essentially) didn't even try. That provision makes sense. The basic point of the statute is to say that we'll still give you a shot at getting your kid back, but we're not going to give you the full panoply of rights -- and keep the kid in additional limbo for years -- when it's fairly clear based on past experience that you're not going to do what's required to keep your child (e.g., stop shooting heroin and meth).
But what if your prior child was removed in a different state rather than California? Is that a removal "pursuant to Section 361"?
The Court of Appeal here says, categorically, no. Here's what Justice Margulies says:
"In our view the language of section 361.5 is clear and unambiguous, rendering it unnecessary to resort to any extrinsic aids. The plain language of the statute is limited to cases involving the removal of a sibling or half sibling from the parent "pursuant to Section 361." (Italics added.) The Legislature
did not include any language that would permit the extension of this provision to a circumstance in which a sibling was previously removed pursuant to the dependency law of another jurisdiction, whether or not that law is comparable to section 361. It is undisputed here that a half sibling of C.R. was previously removed from Mother‘s custody pursuant to Wisconsin law, not pursuant to Section 361. The clear language of section 361.5, subdivision (b)(10) does not apply to these facts."
With respect, I strongly disagree.
It's not that the phrase "pursuant to Section 361" doesn't have meaning. It does. But that language is in no way as categorically dispositive as the Court of Appeal frames it.
Imagine, for example, that Wisconsin has the exact same statute as California. Even calls it the exact same thing: "Section 361". You mean to tell me that if the statutory scheme is identical, the judicial findings exactly the same, and the facts exactly on point, the statute requires a different result merely because the judge in one case was in California and the judge in another was in Wisconsin? That's silly. Both as a practical matter as well as an interpretive one. It's not remotely what the Legislature would have envisioned. (And, parenthetically, even if it did, I think such a statutory regime might well violate the Full Faith and Credit Clause.)
The whole "statute is unambiguous so that's the end of the matter" line simply doesn't work. It's no different than if the Legislature had amended the statute so that the first child was taken away under "Section 360" -- a statute subsequently renumbered to 361. Doesn't matter. Same intent. Same purpose. Same result. Purportedly "unambiguous" statute notwithstanding.
So the Scalia/Thomas-like analysis here is, I think, simply wrong. Profoundly so. To say that the mere fact that we're talking about an initial removal in Wisconsin makes the statute categorically inapplicable not only elevates form over substance, but does so both erroneously and perniciously.
That said, the Court of Appeal may perhaps reach the right result in this particular case. Later on in the opinion, Justice Margulies argues that Wisconsin's statutory regime may contain provisions that are substantively different than California's. So be it. If Wisconsin doesn't have an analogue -- and a darn close one -- to Section 361, then that's indeed dispositive.
But that's the relevant question. Not the mere fact that the removal was in Wisconsin rather than in California.
And yes, yes, I know that the Legislature could have easily said "a statute like Section 361" or something like that. But guess what? Sometimes the Legislature doesn't think of everything. Or employs shorthand. Or relies on -- wait for it -- the judiciary to employ common law construction. How crazy is that?
Not very, in my view. Not at all.
So I think this opinion makes a textbook (and serious) error. But one that is, unfortunately, increasingly common. Despite the fact that it may well reach the right result.
The only danger is that someone will actually believe what the Court of Appeal says and think that, yep, text like this is both unambiguous and categorically dispositive.
People v. Baker-Riley (Cal. Ct. App. - July 2, 2012)
Jesse Baker-Riley gets to remember for 35 years to life that things don't always go like they do in the movies:
"Peter Davis was at home with a friend, Dylan Baumann, when he heard a knock on the front door. Davis opened the door. Appellant and his cohort, the murder victim, Kelsea Alvarez, stood in the open doorway. Appellant pulled out a gun from under his shirt, "put it in [Davis's] face," and said, "You're fucked." The gun was approximately one foot away from Davis. Appellant and Alvarez entered the residence. Appellant demanded cash and marijuana.
Baumann said that he was leaving. Appellant replied: "No, I'm a fucking thug, I'm not fucking around. . . . I'll fucking make you paralyzed for the rest of your fucking life. I'll shoot your fucking kneecaps." When appellant said this, the barrel of his gun was "very close" to Baumann's knees. Appellant waved the gun "around" and pointed it at Baumann's head. At this point, the gun was less than three or four feet away from Baumann.
When appellant and Alvarez entered the residence, Davis and Baumann were eating. Appellant "proceeded to grab [Baumann's] food and eat it." "[H]e was laughing and pointing his gun at [Baumann's] head and eating [Baumann's] food." He asked Baumann if he had ever seen the movie, "Pulp Fiction." Baumann said he had not seen the movie. Appellant again started to laugh.
Appellant pointed his gun at Davis, ate some of Davis's food, and ordered him to open a fortune cookie. Appellant said, "Open that fucking cookie, . . . read that shit, . . . read it aloud." Davis opened the cookie and read the fortune. It said: "If opportunity comes, take it!" Appellant laughed and said he would take an opportunity.
Appellant pointed his gun at Davis and Baumann and ordered them to empty their pockets. They did as they were told. Appellant said, "I'll fucking kill. I'll fucking shoot you right now." Appellant was repeatedly "clicking his weapon, clicking the safety on and off." Baumann thought, "I can't believe I'm going to die and I haven't lived the life I want to fulfill."
Appellant then "said, 'Oh,' and he got all happy because he saw some cannabis drying on a string." The cannabis was in a back room. Appellant pointed his gun at Davis and ordered him to go into the room and sit on a bed. Davis sat on the bed and begged appellant not to kill him. Appellant did not respond to Davis's plea. Davis thought he was going to die.
Appellant turned around, and Davis grabbed his own handgun, which was "tucked in between the bed and the mattress." Davis stood up and fired four or five times at appellant. He missed appellant but one of the bullets penetrated the lungs of appellant's accomplice, Alvarez. He died from the wound. Appellant tried to fire back at Davis, but his gun jammed and would not fire."
So I guess it's sort of like that scene in Pulp Fiction. Except that in the real-life version, the dude hiding in the bathroom doesn't miss. So John Travolta dies earlier, and Samuel Jackson doesn't get to make his cool little speech.
P.S. - Check out footnote 3. How you can fail to take the opportunity to explain Pulp Fiction to the jury is beyond me. I've have tried to show 'em the whole thing. Hoping that the judge was a big Tarantino fan.
"Peter Davis was at home with a friend, Dylan Baumann, when he heard a knock on the front door. Davis opened the door. Appellant and his cohort, the murder victim, Kelsea Alvarez, stood in the open doorway. Appellant pulled out a gun from under his shirt, "put it in [Davis's] face," and said, "You're fucked." The gun was approximately one foot away from Davis. Appellant and Alvarez entered the residence. Appellant demanded cash and marijuana.
Baumann said that he was leaving. Appellant replied: "No, I'm a fucking thug, I'm not fucking around. . . . I'll fucking make you paralyzed for the rest of your fucking life. I'll shoot your fucking kneecaps." When appellant said this, the barrel of his gun was "very close" to Baumann's knees. Appellant waved the gun "around" and pointed it at Baumann's head. At this point, the gun was less than three or four feet away from Baumann.
When appellant and Alvarez entered the residence, Davis and Baumann were eating. Appellant "proceeded to grab [Baumann's] food and eat it." "[H]e was laughing and pointing his gun at [Baumann's] head and eating [Baumann's] food." He asked Baumann if he had ever seen the movie, "Pulp Fiction." Baumann said he had not seen the movie. Appellant again started to laugh.
Appellant pointed his gun at Davis, ate some of Davis's food, and ordered him to open a fortune cookie. Appellant said, "Open that fucking cookie, . . . read that shit, . . . read it aloud." Davis opened the cookie and read the fortune. It said: "If opportunity comes, take it!" Appellant laughed and said he would take an opportunity.
Appellant pointed his gun at Davis and Baumann and ordered them to empty their pockets. They did as they were told. Appellant said, "I'll fucking kill. I'll fucking shoot you right now." Appellant was repeatedly "clicking his weapon, clicking the safety on and off." Baumann thought, "I can't believe I'm going to die and I haven't lived the life I want to fulfill."
Appellant then "said, 'Oh,' and he got all happy because he saw some cannabis drying on a string." The cannabis was in a back room. Appellant pointed his gun at Davis and ordered him to go into the room and sit on a bed. Davis sat on the bed and begged appellant not to kill him. Appellant did not respond to Davis's plea. Davis thought he was going to die.
Appellant turned around, and Davis grabbed his own handgun, which was "tucked in between the bed and the mattress." Davis stood up and fired four or five times at appellant. He missed appellant but one of the bullets penetrated the lungs of appellant's accomplice, Alvarez. He died from the wound. Appellant tried to fire back at Davis, but his gun jammed and would not fire."
So I guess it's sort of like that scene in Pulp Fiction. Except that in the real-life version, the dude hiding in the bathroom doesn't miss. So John Travolta dies earlier, and Samuel Jackson doesn't get to make his cool little speech.
P.S. - Check out footnote 3. How you can fail to take the opportunity to explain Pulp Fiction to the jury is beyond me. I've have tried to show 'em the whole thing. Hoping that the judge was a big Tarantino fan.
Monday, July 09, 2012
People v. Stanley (Cal. Supreme Ct. - July 9, 2012)
When you buy a truck for its fair market value of $950, and two years later someone vandalizes it, it's not a "windfall" for the court to order the defendant to pay you over $2800 -- which was the estimate that you got to repair your $950 car.
So holds the California Supreme Court. Unanimously.
So holds the California Supreme Court. Unanimously.
Flores-Lopez v. Holder (9th Cir. - July 9, 2012)
We've got to resolve cases like this faster.
It's a immigration (removal) case. The Petitioner (Flores-Lopez) resisted a police officer, and the question is whether that's a "crime of violence" that gets him deported.
The correct answer to that question is not crystal clear. So it takes several hearings before the immigration judge, and two trips to the BIA, before we receive the BIA's final answer. Those administrative proceedings last from 2007 to 2008.
The present appeal to the Ninth Circuit has an 08- docket number. And gets resolved in the summer of 2012.
That's way too long. Especially when, as here, the Ninth Circuit decides to remand to the BIA yet again.
I looked at the docket sheet. The only marginal complexity in the case was a motion to remand -- a motion that was denied. That shouldn't cause an immigration appeal to take nearly four years.
The delay was not largely the panel's fault. The oral argument was in February 2012 and the opinion was issued in July 2012. That's not an excessively long delay to craft a published opinion.
But the briefs were completed in February 2010. Taking two additional years until oral argument for a case that has already been pending since 2008 is too much. There's got to -- or at least should -- be a process in which cases with low docket numbers are expedited. Especially when, as here, they're time-sensitive matters in which delay constitutes a substantial downside itself.
It's even worse in this particular case, because the Ninth Circuit ends up doing exactly what the United States asked it to do over three years ago when it filed a motion to remand the case to the BIA. A motion that the Appellate Administrator denied and then the Motions Panel similarly denied.
Sometimes that happens. Occasionally there's nothing one can do about that.
But one can try one's hardest to make sure that appeals don't linger for four years. And that, sadly, did not happen here.
It's a immigration (removal) case. The Petitioner (Flores-Lopez) resisted a police officer, and the question is whether that's a "crime of violence" that gets him deported.
The correct answer to that question is not crystal clear. So it takes several hearings before the immigration judge, and two trips to the BIA, before we receive the BIA's final answer. Those administrative proceedings last from 2007 to 2008.
The present appeal to the Ninth Circuit has an 08- docket number. And gets resolved in the summer of 2012.
That's way too long. Especially when, as here, the Ninth Circuit decides to remand to the BIA yet again.
I looked at the docket sheet. The only marginal complexity in the case was a motion to remand -- a motion that was denied. That shouldn't cause an immigration appeal to take nearly four years.
The delay was not largely the panel's fault. The oral argument was in February 2012 and the opinion was issued in July 2012. That's not an excessively long delay to craft a published opinion.
But the briefs were completed in February 2010. Taking two additional years until oral argument for a case that has already been pending since 2008 is too much. There's got to -- or at least should -- be a process in which cases with low docket numbers are expedited. Especially when, as here, they're time-sensitive matters in which delay constitutes a substantial downside itself.
It's even worse in this particular case, because the Ninth Circuit ends up doing exactly what the United States asked it to do over three years ago when it filed a motion to remand the case to the BIA. A motion that the Appellate Administrator denied and then the Motions Panel similarly denied.
Sometimes that happens. Occasionally there's nothing one can do about that.
But one can try one's hardest to make sure that appeals don't linger for four years. And that, sadly, did not happen here.
Thursday, July 05, 2012
Allgoewer v. City of Tracy (Cal. Ct. App. - July 5, 2012)
I don't even know how a trial court can make this error.
Plaintiffs in an excessive force case aren't required to introduce expert testimony. Is such testimony admissible? Sometimes. Is it helpful? Often. But is it required? No way.
The trial court thought otherwise, and granted a motion for nonsuit when the plaintiff wanted the jury to conclude that an officer shouldn't have knocked down and then tased the plaintiff for (allegedly) no real reason. That's silly, as the Court of Appeal rightly holds.
Some things are permissibly within the lay expertise of juries in deciding what's reasonable. This is one of them.
Plaintiffs in an excessive force case aren't required to introduce expert testimony. Is such testimony admissible? Sometimes. Is it helpful? Often. But is it required? No way.
The trial court thought otherwise, and granted a motion for nonsuit when the plaintiff wanted the jury to conclude that an officer shouldn't have knocked down and then tased the plaintiff for (allegedly) no real reason. That's silly, as the Court of Appeal rightly holds.
Some things are permissibly within the lay expertise of juries in deciding what's reasonable. This is one of them.
Back v. Sebelius (9th Cir. - July 5, 2012)
This opinion by Judge Fisher contains exactly the right tone and content. It's the right result -- dismissing an appeal as moot. But doing so nicely.
It's good to see judges remembering that appeals involve real people with real problems. Even when you're not able to entirely solve them all the time.
It's good to see judges remembering that appeals involve real people with real problems. Even when you're not able to entirely solve them all the time.
Tuesday, July 03, 2012
Annachamy v. Holder (9th Cir. - July 3, 2012)
Imagine that there's a statute (which there is) that says that you can't get asylum if you've helped a terrorist organization in your home country. Imagine further that you're an immigrant who one day indeed helped such a group, but who did so at gunpoint -- for example, you dug a ditch for them (or contributed $37), but did so only because they quite credibly threatened to kill you if you didn't do so. This too is no hypothetical. You can amp it up if you'd like; imagine that you refused to dig a ditch for them, but then they put a gun to your wife's head, you still refused, so they shot her dead, and then they put the gun to your daughter's head, so you dug the ditch.
Do you think the statute applies? Are you still ineligible for asylum?
The Ninth Circuit holds that you are.
This seems a plausible reading of the statute. As long as you're largely concerned only about the particular words used -- which admittedly seem phrased in categorical language -- and not the equity or justice of the result. The whole "plain reading versus common law" dispute.
The Ninth Circuit notes that a different statute appears to allow the Attorney General, in his total discretion, to occasionally waive the requirements of the statute. That seems a somewhat hollow saving grace. For one thing, there are utterly no controls. No standards, no review, no due process, nothing. For another things, this alleged discretion appears never have been used to waive the statute for an individual. Sure, sometimes the AG waives it for those people who have provided support to particular terrorist groups that we (relatively) like. But I don't see it ever used in the "safeguard" way the Ninth Circuit suggests it could, in theory, be used.
So let's just hope you're not faced with a situation in which someone puts a gun to your head. Because while the criminal law provides a defense, immigration law apparently does not.
Happy July Fourth.
Do you think the statute applies? Are you still ineligible for asylum?
The Ninth Circuit holds that you are.
This seems a plausible reading of the statute. As long as you're largely concerned only about the particular words used -- which admittedly seem phrased in categorical language -- and not the equity or justice of the result. The whole "plain reading versus common law" dispute.
The Ninth Circuit notes that a different statute appears to allow the Attorney General, in his total discretion, to occasionally waive the requirements of the statute. That seems a somewhat hollow saving grace. For one thing, there are utterly no controls. No standards, no review, no due process, nothing. For another things, this alleged discretion appears never have been used to waive the statute for an individual. Sure, sometimes the AG waives it for those people who have provided support to particular terrorist groups that we (relatively) like. But I don't see it ever used in the "safeguard" way the Ninth Circuit suggests it could, in theory, be used.
So let's just hope you're not faced with a situation in which someone puts a gun to your head. Because while the criminal law provides a defense, immigration law apparently does not.
Happy July Fourth.
Monday, July 02, 2012
B.F. v. Superior Court (Cal. Ct. App. - July 2, 2012)
Usually when you file a writ against the Superior Court there's a real party in interest somewhere. But not here. The kids are actually saying the Court is doing something wrong, even though there's no one on the other side.
And the Court of Appeal agrees.
And the Court of Appeal agrees.
U.S. v. Yepiz (9th Cir. - July 2, 2012)
I wouldn't start an opinion (as Judge Rawlinson does here) by saying that "One of the most valuable weapons in the arsenal of the trial attorney is the peremptory challenge." For one thing, I don't think it's true. As a trial attorney, I'd give up peremptory challenges before I'd give up a lot of other important things (e.g., if you're a defense attorney, reasonable doubt, unanimity requirements, etc.; if you're a prosecutor, conspiracy charges, etc.). Moreover, since both sides have them, strategically, their use seems a wash. Plus, the empirical evidence on whether challenges can be used effectively is slim at best. Attorneys may think they're bouncing potential jurors who are biased against their side (or unlikely to rule their way), but the reality is starkly different.
Moreover, views about peremptory challenges have changed a lot over the past several decades. I think there's a recognition nowadays that they're troubling. Not only administratively -- because they engender all the Batson-like challenges -- but also because emplying these things seems inherently suspect. It may well have been that, forty years ago, most trial lawyers would have said that peremptory challenges are essential to justice. Nowadays, I think that such a sentiment would be substantially weaker, and a contrary view much more pervasive.
Noe of that suggests that peremptory challenges are going away anytime soon. Though I think that's the direction (if not the wholesale result) we're headed. And I get why some people think that the availability of at least some peremptory challenges is a good idea.
But I wouldn't write an opinion that calls them one of the most valuable weapons available to a trial attorney. Especially if that opinion is going to hold -- as Judge Rawlinson's does here -- that taking away a full twenty percent of those challenges from the defendant is harmless error because he can't prove that a replacement juror was biased.
Moreover, views about peremptory challenges have changed a lot over the past several decades. I think there's a recognition nowadays that they're troubling. Not only administratively -- because they engender all the Batson-like challenges -- but also because emplying these things seems inherently suspect. It may well have been that, forty years ago, most trial lawyers would have said that peremptory challenges are essential to justice. Nowadays, I think that such a sentiment would be substantially weaker, and a contrary view much more pervasive.
Noe of that suggests that peremptory challenges are going away anytime soon. Though I think that's the direction (if not the wholesale result) we're headed. And I get why some people think that the availability of at least some peremptory challenges is a good idea.
But I wouldn't write an opinion that calls them one of the most valuable weapons available to a trial attorney. Especially if that opinion is going to hold -- as Judge Rawlinson's does here -- that taking away a full twenty percent of those challenges from the defendant is harmless error because he can't prove that a replacement juror was biased.
Friday, June 29, 2012
U.S. v. Thoms (9th Cir. - June 29, 2012)
One of the things I do -- or, more accurately, try to do -- when I read opinions is to initially read them without looking first to see who wrote them. I care about the author, sure. I definitely look at the end.
But I recognize that I'm subject to bias just like everyone else. If I know that an opinion is written by a judge with whom I generally agree (and/or respect), I realize that I may potentially view the opinion in a more generous light. Ditto if the converse is true.
I try to avoid that by skipping over the author at the outset. Sometimes my eye catches things, of course, and sometimes I can tell the author merely by the style of the opinion. But I do my best to try to get an "impartial" view of an opinion, at least at the beginning. Recognizing that it understates things to merely put the word "impartial" in quotes. But I try.
I mention that because (1) I like to share things, and (2) I had that sense in spades when I read this opinion. Here are its first four paragraphs:
"In a criminal pre-trial matter, it is well established in our circuit and in most others that, if a district judge is inclined to depart from credibility findings of a magistrate judge that were favorable to the defendant, he may only do so after holding a de novo evidentiary hearing. See United States v. Ridgway, 300 F.3d 1153 (9th Cir. 2002). This right is grounded in the Due Process Clause. Id. at 1155-56.
But what about the reverse? What if a magistrate judge recommends denying a motion to suppress, but the district judge wishes to reverse that determination because he is inclined to disbelieve the testimony of government officials? In that case, must he hold a de novo hearing for the benefit of the government, which is the plaintiff in a criminal case?
This appeal considers such a case, and our circuit has yet to address this question. The government primarily urges us to adopt a broad rule: the government’s right to a de novo hearing before a district judge is identical to that of defendants, even though the government cannot directly invoke the protections of the Due Process Clause. The defendants counter that, without the Due Process Clause to ground this right, the decision to hold a de novo hearing in such cases is entirely within the district judge’s discretion.
We disagree with both of those categorical options, and today we adopt a middle ground, though our rule counsels strongly in favor of holding a de novo hearing. We agree with the defendants that the government does not have an unqualified right to a de novo evidentiary hearing whenever a district
judge reverses a magistrate judge’s credibility determinations in a way adverse to the government. But we also agree with the government that its interest in the integrity and accuracy of judicial proceedings—which, after all, similarly underlie a defendant’s due process rights to such a de novo hearing— will often counsel in favor of such a hearing. Thus, we hold that a district court abuses its discretion when it reverses a magistrate judge’s credibility determinations, made after receiving live testimony and favorable to the government, without viewing key demeanor evidence, with one exception: where the district judge finds that the magistrate judge’s credibility determinations had no legally sufficient evidentiary basis, so that, were they jury determinations, judgment as a matter of law would issue for the defendant."
I had chills when I read that introduction, saying to myself: "Holy crap. This is good. That's seems exactly right to me, and articulated with really good language. Simply awesome." A reaction on my part that was immediately followed by: "Oh no. I hope this isn't written by a judge I think is terrible!"
I read the rest of the opinion, and then went back and looked to see who wrote it. Judge Bea. Joined by Judges Gould and Bybee. So a really good start by Judge Bea. Well done.
That's not to say that I agree with every single thing in the opinion. I'm probably a little less inclined than the panel to say that the district court has to always hear the witness in person if it's not a JML-like situation. In part because I'm probably a little less confident than the panel that judges can actually make accurate calls on credibility (and I think I'm backed up by the research on this one). And also in part because I think there's a process value -- somewhat distinct from (albeit intertwined with) the Due Process Clause -- that distinguishes when the government as opposed to a defendant is found uncredible. There's a value in saying that you can't put someone in jail on the basis of finding him uncredible without hearing him out first. It'd just seem wrong to do so. For many of the same reasons we allow allocution before you're sentenced. It's not just that there is an accuracy concern. It's also one of process. But that doesn't apply when you're finding a witness for the government uncredible. You're not sending the witness (or anyone else) to jail; you're just disbelieving their testimony. Not as big of a deal.
Plus, sometimes it's hard to find a witness uncredible when they're right in front of you. And I say this from experience, having been on the bench numerous times in small claims court in which I've had to decide cases on the basis of pure credibility calls. Usually you can come up with a "creative" way to sell the decision to the parties -- while simultaneously doing the right thing -- without expressly calling a witness or party a liar. But sometimes you can't. The pressure not to call someone a liar to their face (even when you think they are) is presumably even higher when the witness is a police officer or other government figure.
So sometimes -- and I admit it's rare -- I might allow a judge to not hold an actual hearing if the judge is convinced that no matter how credible the government witness seemed, there's no way the judge would change his or her mind. This might even be one of those cases. Look at what the district judge said for why he disbelieved the government witness:
"To conclude that Investigator Young did smell marijuana from the road, while in his vehicle would require the court to assume that Thoms’ filtration system was either saturated or not functional; that the odor of marijuana left the outbuilding unfiltered and remained warm long enough to stay above the vegetation behind the Thomses’ house; that it either traveled around the Thomses’ two-story residence or stayed warm long enough to traverse above it then suddenly dropped in the area Young claimed to smell marijuana; and that it followed the described 450 foot course without dispersing beyond perceptible levels. Those assumptions are contrary to a preponderance of the evidence presented at the Franks hearing."
That sounds like pretty decent reasoning to me. In short: "The story you're telling is just silly. You thought there was marijuana there for different reasons but those weren't enough for a warrant, so you did what we know officers do all the time: Said you 'smelled' it. Sorry. No dice. I don't care how sincere or official you looked at a hearing or how smooth your uniform was. I'm not buying it."
Now, maybe the panel here would say that if that was indeed the case, then the JML standards would apply (since the evidence is "implausible;" i.e., no reasonable jury could buy it). But I'm not sure that this standard -- which is designed for the Seventh Amendment, an entirely dissimilar context -- is exactly right. Instead, a district court might say: "Look, it's not that a reasonable jury might not buy your argument. It's just that I don't. No matter how credible you look." That's a different standard than the Ninth Circuit articulates, and I'm not sure it wouldn't make sense. Why hold an evidentiary hearing to call someone a liar to their face when you're certain it won't make a difference? And why require one if you fear (as I do) that having to call someone a liar to their face may in some cases make you hesitant to call them a liar even if you think they are. That gets the wrong result, and at real cost.
Mind you, I think there's a different reason why I'd normally require district judges to hold evidentiary hearings in cases like this one. Again, a process reason. Sometimes you get more information when you hold a hearing not about pure credibility, but about actual facts. When the witness personally appears, the judge can ask questions. Those questions can either (1) provide additional evidence that the witness is lying (indeed, that's what they'll usually do), as the witness provides increasingly incredible responses to a judge's targeted inquiries, or (2) sometimes (albeit perhaps rarely), convince the district court that what might at first glance appear implausible is in fact plausible. Not because we're making a pure demeanor call or judging credibility. But because the interactive process of questioning reveals additional facts that change one's assessment (e.g., you learn that there was a really strange wind that night, that studies show that one can detect a marijuana smell from hundreds of yards away, etc.). [Parenthetically, since I live in a hippie-like area across the street from a beach, I can testify that the latter is, in fact, more plausible than you might initially think.]
I still end up thinking that the introductory paragraphs of this opinion are really good, and that the result is largely right. But I might nonetheless tinker with both the reasoning and the resulting rule to make it a little better. Because it seems nearly right to me, but the few cases in which it's a near-miss might be important ones.
But I recognize that I'm subject to bias just like everyone else. If I know that an opinion is written by a judge with whom I generally agree (and/or respect), I realize that I may potentially view the opinion in a more generous light. Ditto if the converse is true.
I try to avoid that by skipping over the author at the outset. Sometimes my eye catches things, of course, and sometimes I can tell the author merely by the style of the opinion. But I do my best to try to get an "impartial" view of an opinion, at least at the beginning. Recognizing that it understates things to merely put the word "impartial" in quotes. But I try.
I mention that because (1) I like to share things, and (2) I had that sense in spades when I read this opinion. Here are its first four paragraphs:
"In a criminal pre-trial matter, it is well established in our circuit and in most others that, if a district judge is inclined to depart from credibility findings of a magistrate judge that were favorable to the defendant, he may only do so after holding a de novo evidentiary hearing. See United States v. Ridgway, 300 F.3d 1153 (9th Cir. 2002). This right is grounded in the Due Process Clause. Id. at 1155-56.
But what about the reverse? What if a magistrate judge recommends denying a motion to suppress, but the district judge wishes to reverse that determination because he is inclined to disbelieve the testimony of government officials? In that case, must he hold a de novo hearing for the benefit of the government, which is the plaintiff in a criminal case?
This appeal considers such a case, and our circuit has yet to address this question. The government primarily urges us to adopt a broad rule: the government’s right to a de novo hearing before a district judge is identical to that of defendants, even though the government cannot directly invoke the protections of the Due Process Clause. The defendants counter that, without the Due Process Clause to ground this right, the decision to hold a de novo hearing in such cases is entirely within the district judge’s discretion.
We disagree with both of those categorical options, and today we adopt a middle ground, though our rule counsels strongly in favor of holding a de novo hearing. We agree with the defendants that the government does not have an unqualified right to a de novo evidentiary hearing whenever a district
judge reverses a magistrate judge’s credibility determinations in a way adverse to the government. But we also agree with the government that its interest in the integrity and accuracy of judicial proceedings—which, after all, similarly underlie a defendant’s due process rights to such a de novo hearing— will often counsel in favor of such a hearing. Thus, we hold that a district court abuses its discretion when it reverses a magistrate judge’s credibility determinations, made after receiving live testimony and favorable to the government, without viewing key demeanor evidence, with one exception: where the district judge finds that the magistrate judge’s credibility determinations had no legally sufficient evidentiary basis, so that, were they jury determinations, judgment as a matter of law would issue for the defendant."
I had chills when I read that introduction, saying to myself: "Holy crap. This is good. That's seems exactly right to me, and articulated with really good language. Simply awesome." A reaction on my part that was immediately followed by: "Oh no. I hope this isn't written by a judge I think is terrible!"
I read the rest of the opinion, and then went back and looked to see who wrote it. Judge Bea. Joined by Judges Gould and Bybee. So a really good start by Judge Bea. Well done.
That's not to say that I agree with every single thing in the opinion. I'm probably a little less inclined than the panel to say that the district court has to always hear the witness in person if it's not a JML-like situation. In part because I'm probably a little less confident than the panel that judges can actually make accurate calls on credibility (and I think I'm backed up by the research on this one). And also in part because I think there's a process value -- somewhat distinct from (albeit intertwined with) the Due Process Clause -- that distinguishes when the government as opposed to a defendant is found uncredible. There's a value in saying that you can't put someone in jail on the basis of finding him uncredible without hearing him out first. It'd just seem wrong to do so. For many of the same reasons we allow allocution before you're sentenced. It's not just that there is an accuracy concern. It's also one of process. But that doesn't apply when you're finding a witness for the government uncredible. You're not sending the witness (or anyone else) to jail; you're just disbelieving their testimony. Not as big of a deal.
Plus, sometimes it's hard to find a witness uncredible when they're right in front of you. And I say this from experience, having been on the bench numerous times in small claims court in which I've had to decide cases on the basis of pure credibility calls. Usually you can come up with a "creative" way to sell the decision to the parties -- while simultaneously doing the right thing -- without expressly calling a witness or party a liar. But sometimes you can't. The pressure not to call someone a liar to their face (even when you think they are) is presumably even higher when the witness is a police officer or other government figure.
So sometimes -- and I admit it's rare -- I might allow a judge to not hold an actual hearing if the judge is convinced that no matter how credible the government witness seemed, there's no way the judge would change his or her mind. This might even be one of those cases. Look at what the district judge said for why he disbelieved the government witness:
"To conclude that Investigator Young did smell marijuana from the road, while in his vehicle would require the court to assume that Thoms’ filtration system was either saturated or not functional; that the odor of marijuana left the outbuilding unfiltered and remained warm long enough to stay above the vegetation behind the Thomses’ house; that it either traveled around the Thomses’ two-story residence or stayed warm long enough to traverse above it then suddenly dropped in the area Young claimed to smell marijuana; and that it followed the described 450 foot course without dispersing beyond perceptible levels. Those assumptions are contrary to a preponderance of the evidence presented at the Franks hearing."
That sounds like pretty decent reasoning to me. In short: "The story you're telling is just silly. You thought there was marijuana there for different reasons but those weren't enough for a warrant, so you did what we know officers do all the time: Said you 'smelled' it. Sorry. No dice. I don't care how sincere or official you looked at a hearing or how smooth your uniform was. I'm not buying it."
Now, maybe the panel here would say that if that was indeed the case, then the JML standards would apply (since the evidence is "implausible;" i.e., no reasonable jury could buy it). But I'm not sure that this standard -- which is designed for the Seventh Amendment, an entirely dissimilar context -- is exactly right. Instead, a district court might say: "Look, it's not that a reasonable jury might not buy your argument. It's just that I don't. No matter how credible you look." That's a different standard than the Ninth Circuit articulates, and I'm not sure it wouldn't make sense. Why hold an evidentiary hearing to call someone a liar to their face when you're certain it won't make a difference? And why require one if you fear (as I do) that having to call someone a liar to their face may in some cases make you hesitant to call them a liar even if you think they are. That gets the wrong result, and at real cost.
Mind you, I think there's a different reason why I'd normally require district judges to hold evidentiary hearings in cases like this one. Again, a process reason. Sometimes you get more information when you hold a hearing not about pure credibility, but about actual facts. When the witness personally appears, the judge can ask questions. Those questions can either (1) provide additional evidence that the witness is lying (indeed, that's what they'll usually do), as the witness provides increasingly incredible responses to a judge's targeted inquiries, or (2) sometimes (albeit perhaps rarely), convince the district court that what might at first glance appear implausible is in fact plausible. Not because we're making a pure demeanor call or judging credibility. But because the interactive process of questioning reveals additional facts that change one's assessment (e.g., you learn that there was a really strange wind that night, that studies show that one can detect a marijuana smell from hundreds of yards away, etc.). [Parenthetically, since I live in a hippie-like area across the street from a beach, I can testify that the latter is, in fact, more plausible than you might initially think.]
I still end up thinking that the introductory paragraphs of this opinion are really good, and that the result is largely right. But I might nonetheless tinker with both the reasoning and the resulting rule to make it a little better. Because it seems nearly right to me, but the few cases in which it's a near-miss might be important ones.
Thursday, June 28, 2012
National Federation of Independent Business v. Sebelius (U.S. Supreme Ct. - June 28, 2012)
I virtually never comment on high-profile and/or U.S. Supreme Court decisions. There are lots of other people who are already inclined to do so. That's even more true with respect to today's decision about the Patient Protection and Affordable Care Act. Virtually everyone with a law degree -- and many without one -- will discuss it today.
It nonetheless seems wrong to me for me to say nothing at all about the most important (or at least most publicized) Supreme Court decision of our generation. Especially since I spent this morning reading the entire 193 pages of opinions.
So I'll mention two things. Incredibly briefly. Because while I think it's worth it to say something, I also think it's equally important for me to play golf at Torrey Pines in 30 minutes. Indeed, more so.
Here are my two statements of fact. For which I admittedly have no concrete proof:
(1) The joint dissent of Scalia, Kennedy, Thomas and Alito was originally a (perhaps tenative) majority opinion. They wrote it thinking that Roberts was joining them. It turned into a dissent when Chief Justice Roberts changed (or "clarified") his tentative vote after oral argument. It shows how quickly things can change, and how important a single person can be.
(2) Chief Justice Roberts would have voted differently if he wasn't the Chief. His vote was foundationally an act of "statesmanship" and the act of a Chief Justice. That doesn't mean he doesn't believe what he says, as I'm sure he does. But one's views are sometimes affected by one's role. And that transpired here. What he did and what he said is consistent with his views about his position as well as his personality. He doesn't take a view of history or of his role in the same way that (say) Scalia and Thomas do. His preexisting beliefs in this regard are amplified -- exponentially -- by his position as Chief and it being "his" Court. We saw this a little bit earlier in the week in the Arizona immigration case (where his vote with the liberals avoided a 4-4 split). We see it, in a different context, today. This doesn't portend a major shift in his ideology. It instead means that in high-profile cases, where being the Chief may be viewed as pressing one towards a particular role, that can matter. And it did here.
I won't attempt to defend those statements of fact. But I believe both of them.
Off to hit little white balls into tiny holes.
It nonetheless seems wrong to me for me to say nothing at all about the most important (or at least most publicized) Supreme Court decision of our generation. Especially since I spent this morning reading the entire 193 pages of opinions.
So I'll mention two things. Incredibly briefly. Because while I think it's worth it to say something, I also think it's equally important for me to play golf at Torrey Pines in 30 minutes. Indeed, more so.
Here are my two statements of fact. For which I admittedly have no concrete proof:
(1) The joint dissent of Scalia, Kennedy, Thomas and Alito was originally a (perhaps tenative) majority opinion. They wrote it thinking that Roberts was joining them. It turned into a dissent when Chief Justice Roberts changed (or "clarified") his tentative vote after oral argument. It shows how quickly things can change, and how important a single person can be.
(2) Chief Justice Roberts would have voted differently if he wasn't the Chief. His vote was foundationally an act of "statesmanship" and the act of a Chief Justice. That doesn't mean he doesn't believe what he says, as I'm sure he does. But one's views are sometimes affected by one's role. And that transpired here. What he did and what he said is consistent with his views about his position as well as his personality. He doesn't take a view of history or of his role in the same way that (say) Scalia and Thomas do. His preexisting beliefs in this regard are amplified -- exponentially -- by his position as Chief and it being "his" Court. We saw this a little bit earlier in the week in the Arizona immigration case (where his vote with the liberals avoided a 4-4 split). We see it, in a different context, today. This doesn't portend a major shift in his ideology. It instead means that in high-profile cases, where being the Chief may be viewed as pressing one towards a particular role, that can matter. And it did here.
I won't attempt to defend those statements of fact. But I believe both of them.
Off to hit little white balls into tiny holes.
Wednesday, June 27, 2012
U.S. v. Gonzalez (9th Cir. - June 27, 2012)
Judge Tallman begins this opinion with the line: "The United States Constitution and federal law require that crimes be prosecuted where the offense was committed. This venue requirement, however, is more easily stated than applied."
The common reaction might be: "Yep. It's tough. Couldn't agree more."
But personally, I don't think the rule's very difficult to articulate. At all. Here's how I'd state the rule, at least as applied by contemprary federal courts:
"Venue exists in federal criminal cases virtually anywhere. Wherever there's even the most tenuous and/or government-manufactured contact with a crime, venue's proper there."
This case is a perfect example. The crime's entirely outside the Northern District of California. The defendant never steps foot there. Never does anything there. As far as we know, doesn't even know that the Northern District of California exists. The only thing that happens there is that a confidential informant who's working for the government -- who's working to destroy the conspiracy -- makes a telephone call from there to the defendant. The defendant didn't know the call was from the Northern District of California. Didn't know the CI was working for the government. Wouldn't have taken the call if he'd have known. Never benefitted, one iota, from the Northern District. Never purposefully (or otherwise) availed himself of the benefits of that forum.
In civil cases, we'd undeniably say that venue's improper. But the Ninth Circuit holds -- as pretty much every other circuit would surely hold as well -- that venue's nonetheless proper in that forum. Because even though proper venue's a constitutional requirement in only criminal (not civil) cases, as applied by the judiciary, that requirement's only really meaningful in the latter.
So you might have a variety of critiques about the federal venue rule in criminal cases. But that it's hard to apply isn't particularly one of them.
The common reaction might be: "Yep. It's tough. Couldn't agree more."
But personally, I don't think the rule's very difficult to articulate. At all. Here's how I'd state the rule, at least as applied by contemprary federal courts:
"Venue exists in federal criminal cases virtually anywhere. Wherever there's even the most tenuous and/or government-manufactured contact with a crime, venue's proper there."
This case is a perfect example. The crime's entirely outside the Northern District of California. The defendant never steps foot there. Never does anything there. As far as we know, doesn't even know that the Northern District of California exists. The only thing that happens there is that a confidential informant who's working for the government -- who's working to destroy the conspiracy -- makes a telephone call from there to the defendant. The defendant didn't know the call was from the Northern District of California. Didn't know the CI was working for the government. Wouldn't have taken the call if he'd have known. Never benefitted, one iota, from the Northern District. Never purposefully (or otherwise) availed himself of the benefits of that forum.
In civil cases, we'd undeniably say that venue's improper. But the Ninth Circuit holds -- as pretty much every other circuit would surely hold as well -- that venue's nonetheless proper in that forum. Because even though proper venue's a constitutional requirement in only criminal (not civil) cases, as applied by the judiciary, that requirement's only really meaningful in the latter.
So you might have a variety of critiques about the federal venue rule in criminal cases. But that it's hard to apply isn't particularly one of them.
Patterson v. Domino's Pizza (Cal. Ct. App. - June 27, 2012)
Who could resist reading a case about the intersection of Domino's Pizza and sexual harassment?
Not me, that's for sure.
Especially when the name of the Domino's Pizza franchise at issue is -- appropriately enough -- "Sui Juris."
Not me, that's for sure.
Especially when the name of the Domino's Pizza franchise at issue is -- appropriately enough -- "Sui Juris."
Tuesday, June 26, 2012
U.S. v. Meredith (9th Cir. - June 26, 2012)
This makes it official. I'm calling it "Jean-Claude Andre" month in the Ninth Circuit.
Jean-Claude's an AUSA, and he argued the appeal that gave rise to today's published opinion from the Ninth Circuit. An appeal from consolidated tax evasion cases that (for some reason I can't figure out) was filed in 2005 and yet not resolved until 2012.
Jean-Claude also argued the appeal in this published opinion from Friday. Child pornography, that time. Two published opinions in less than a week.
Another case from Mr. Andre in June was this one, though it's unpublished (illegal reentry after deportation). And four weeks ago there's this published opinion from the Ninth Circuit, which Mr. Andre argued.
Four Ninth Circuit opinions in four weeks. And you thought being a government employee was just a nine to five job, eh?
Good job, Jean-Claude.
Jean-Claude's an AUSA, and he argued the appeal that gave rise to today's published opinion from the Ninth Circuit. An appeal from consolidated tax evasion cases that (for some reason I can't figure out) was filed in 2005 and yet not resolved until 2012.
Jean-Claude also argued the appeal in this published opinion from Friday. Child pornography, that time. Two published opinions in less than a week.
Another case from Mr. Andre in June was this one, though it's unpublished (illegal reentry after deportation). And four weeks ago there's this published opinion from the Ninth Circuit, which Mr. Andre argued.
Four Ninth Circuit opinions in four weeks. And you thought being a government employee was just a nine to five job, eh?
Good job, Jean-Claude.
Subscribe to:
Posts (Atom)