Fifth Circuit Notes Split re Substantive Prosecutorial Use of Post-arrest, Pre-Miranda Silence

Per U.S. v. Salinas, --- F.3d ----, 2007 WL 646132 (5th Cir. Mar. 5, 2007):

[T]here is a split among the other federal circuits as to whether a prosecutor's use of a defendant's post-arrest, pre- Miranda v. Arizona, 384 U.S. 436 (1966) silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination. The Seventh, Ninth, and D.C. Circuits have all squarely held that it does. The First and Sixth Circuits have gone further and have held that the substantive use of even pre-arrest silence can violate the privilege against self-incrimination. The Fourth, Eighth, and Eleventh Circuits have, on the other hand, found the substantive use of post-arrest, pre- Miranda silence during the prosecution's case-in-chief permissible.

We need not decide this constitutional question today. Because this circuit's law remains unsettled and the other federal circuits have reached divergent conclusions on this issue, even assuming that the prosecutor's comments were improper, Salinas cannot satisfy the second prong of the plain error test-that the error be clear under existing law.


Second Circuit Discusses Split Re: Whether Actions Seeking Post-Conviction Access to DNA Evidence May be Brought Only in Habeas Proceedings

Per McKithen v. Brown, --- F.3d ----, 2007 WL 744728 (2d Cir. Mar. 13, 2007):

[W]e must now determine whether a claim asserting a post-conviction federal constitutional right of access to, and DNA testing of, evidence is cognizable under § 1983, or whether, instead, it lies so well “within the core of habeas corpus” that it may only be brought in a habeas petition. The question has been an open one in this circuit. We today join the Seventh, Ninth, and Eleventh Circuits, and district courts in the First and Third Circuits, agreeing with them that a claim seeking post-conviction access to evidence for DNA testing may properly be brought as a § 1983 suit. See Savory v. Lyons, 469 F.3d 667, 669 (7th Cir.2006); Osborne v. Dist. Attorney's Office for the Third Judicial Dist., 423 F.3d 1050, 1054 (9th Cir.2005); Bradley v. Pryor, 305 F.3d 1287, 1290-91 (11th Cir.2002); see also Wade v. Brady, 460 F.Supp.2d 226, 237 (D.Mass.2006) (“[Section] 1983 is an entirely appropriate medium for plaintiff to raise his claim for access to DNA testing.”); Derrickson v. Del. County Dist. Attorney's Office, No. 04-1569, 2006 WL 2135854, at *8 (E.D.Pa. July 26, 2006) (same). In doing so we reject the position taken by three other circuits. See Harvey v. Horan, 278 F.3d 370, 375 (4th Cir.2002) (“Harvey I”) (holding that such a claim cannot be brought in a § 1983 action when a plaintiff “seek[s] access to DNA evidence for one reason and one reason only-as the first step in undermining his conviction”); Kutzner v. Montgomery County, 303 F.3d 339, 340-41 (5th Cir.2002) (per curiam) (adopting the reasoning of Harvey I); see also Boyle v. Mayer, 46 Fed.Appx. 340, 340 (6th Cir.2002) (unpublished) (holding that a suit seeking DNA testing of biological evidence is, in light of Heck, not cognizable under § 1983).


M.D. North Carolina Notes Split Re: Whether Forum Defendant Rule is Merely Procedural

Per Ada Liss Group v. Sara Lee Branded Apparel, 2007 WL 634083 (M.D. N.C. Feb. 26, 2007):
[U]nder 28 U.S.C. § 1441(b), actions removed on the basis of diversity jurisdiction “shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” This is referred to as the “forum defendant rule,” and reflects the belief that federal diversity jurisdiction is unnecessary because there is less reason to fear state court prejudice against the defendants if one or more of them is from the forum state. See Erwin Chemerinsky, Federal Jurisdiction, § 5.5, at 345 (4th ed.2003). . . .

A majority of circuit courts have held that the forum defendant rule is merely procedural, as opposed to jurisdictional, and is therefore waived under 28 U.S.C. § 1447(c) if no objection is made within 30 days of removal. See Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 942 (9th Cir.2006); Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 F.3d 48, 50 n. 2 (2d Cir.2000); Hurley v. Motor Coach Indus., Inc., 222 F .3d 377, 379-80 (7th Cir.2000); Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 90 n. 3 (3d Cir.1999); Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1372 n. 4 (11th Cir.1998); In re Shell Oil Co., 932 F.2d 1518, 1523 (5 th Cir.1991); Farm Constr. Servs., Inc. v. Fudge, 831 F.2d 18, 21-22 (1st Cir.1987); Am. Oil Co. v. McMullin, 433 F.2d 1091, 1094-95 (10th Cir.1970); Handley-Mack Co. v. Godchaux Sugar Co., 2 F.2d 435, 437 (6th Cir.1924). As Defendant notes, the Ninth Circuit's recent opinion on the issue in Lively v. Wild Oats Markets, Inc. is instructive. In that case, the court conducted a “close analysis of the legislative history of § 1447(c), the policy rationale of § 1441(b), the prevailing law of our sister circuits, and Supreme Court precedent,” all of which weighed in favor of finding that the forum defendant rule is procedural. Id. at 939. . . . The court concluded that “the forum defendant rule embodied in § 1441(b) is a procedural requirement, and thus a violation of this rule constitutes a waivable non-jurisdictional defect subject to the 30-day time limit imposed by § 1447(c).” Id. at 942. The Fourth Circuit has not yet ruled as to whether the forum defendant rule under § 1441(b) is procedural and may therefore be waivedFN1

FN1. The court notes that, on October 12, 2006, the United States Supreme Court denied a petition for certiorari in a case out of the Eighth Circuit that raised the precise question that is before this court-i.e., whether the forum defendant rule is merely procedural and may, therefore, be waived if a timely motion for remand is not made. See Horton v. Conklin, 431 F.3d 602 (8th Cir.2005) (adhering to the minority view that a violation of the forum defendant rule is a jurisdictional defect and is therefore incapable of being waived), cert. denied, Waugh v. Horton, 127 S.Ct. 60 (2006). With the refusal of the Supreme Court to take up the issue, it appears that the circuit split will continue to remain unresolved for now.


D. Hawai'i Notes Split Re Whether a Constructive Discharge Constitutes a Tangible Employment Action

Per U.S. E.E.O.C. v. Scolari Warehouse Markets, Inc., --- F.Supp.2d ----, 2007 WL 867132 (D.Hawai'i Jan. 29, 2007):

[W]hen no tangible employment action is taken, company policies prohibiting harassment and providing steps to take to eradicate that harassment may be used as an affirmative defense to a claim of hostile work environment. FN14

FN14. For claims of constructive discharge, “[a] plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.” Suders, 542 U.S. at 147 (2004). Circuits are split on whether a constructive discharge constitutes a tangible employment action. This issue is an open question in the Ninth Circuit. See, e.g., Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177, 1185 (9th Cir.2005) (finding no constructive discharge, without answering whether a constructive discharge may constitute a tangible employment action); Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir.1999) (deciding not to make this determination because Plaintiff was not constructively discharged).


SCOTUS to Hear Argument in PSLRA Case Aimed at Resolving Circuit Split

Cornell's LII Bulletin has offered the following preview of next week's oral argument in Tellabs, Inc. v. Makor Issues & Rights, LTD (06-484):

Tellabs, Inc. v. Makor Issues & Rights, LTD (06-484)
Oral argument: March 28, 2007

The Private Securities Litigation and Reform Act of 1995 was passed by Congress in 1995 in an effort to create clear guidelines for the prosecution of cases involving securities fraud. However, circuit courts have been divided over how to interpret the Act's language regarding the type of proof required to withstand a motion for dismissal. This case addresses the differing interpretive approaches taken by the circuit courts. Tellabs, Inc. argues that, for a suit to go forward, the evidentiary standard set out by the PSLRA requires that plaintiffs show a "high likelihood" that the defendant acted with scienter, i.e., knowledge and intention to break the law. It argues that Makor Issues & Rights failed to make the requisite allegations of specific facts necessary to sustain its case. Makor counters that its complaint was sufficiently detailed to establish a reasonable inference that the defendants knew they were breaking the law. The Supreme Court's decision in this case will establish a uniform interpretation of the type and extent of evidence necessary under the PSLRA to sufficiently allege that a defendant has acted with scienter.

The full version of this preview is available at http://www.law.cornell.edu/supct/cert/06-484.html


Fifth Circuit Notes Split Re Scope of Primary Liability for Secondary Actors under Section 10(b) of the Securities Exchange Act

Per Regents of University of California v. Credit Suisse First Boston (USA), Inc., --- F.3d ----, 2007 WL 816518 (Mar. 19, 2007):

Section 10(b) [of the Securities Exchange Act] does not give rise to aiding and abetting liability. In Central Bank, the Court emphasized that securities fraud liability is an area of the law that demands certainty and predictability. Secondary liability brings neither; instead it gives rise to confusion about the extent of secondary actors' obligations and invites vague and conflicting standards of proof in divers courts. See Cent. Bank, 511 U.S. at 188. Unfortunately, the Court has left some uncertainty in this regard.

Though the Court conclusively foreclosed the application of secondary liability under § 10(b), it stated that secondary actors such as investment banks and accountants can be liable as primary violators in some circumstances. Id. at 191. The Court has never, however, precisely delineated the boundary between primary and secondary liability. As the district court noted, the lower courts have struggled to do so, and our circuit has not previously announced a standard that conclusively governs this case.

Although plaintiffs try to reconcile the cases, the Eighth and Ninth Circuits have split with respect to the scope of primary liability for secondary actors.FN24 The district court adopts a rule advocated by the Securities and Exchange Commission (“SEC”), in an amicus curiae brief before the Ninth Circuit, under which primary liability attaches to anyone who engages in a “transaction whose principal purpose and effect is to create a false appearance of revenues.” We agree with the Eighth Circuit that the SEC's proposed test (by which we are not bound) is too broad to fit within the contours of § 10(b).

FN24. Compare Simpson v. AOL Time Warner Inc., 452 F.3d 1040, 1048 (9th Cir.2006) (“[T]o be liable as a primary violator of § 10(b) for participation in a ‘scheme to defraud,’ the defendant must have engaged in conduct that had the principal purpose and effect of creating a false appearance of fact in furtherance of the scheme.”), petition for cert. filed (Oct. 19, 2006) (No. 06-560) with In re Charter Commc'ns, Inc., Sec. Litig., 443 F.3d 987, 992 (8th Cir.2006) (“[A]ny defendant who does not make or affirmatively cause to be made a fraudulent statement or omission, or who does not directly engage in manipulative securities trading practices, is at most guilty of aiding and abetting and cannot be held liable under § 10(b) or any subpart of Rule 10b-5.”), petition for cert. filed (July 7, 2006) (No. 06-43).


SCT Resolves Split Re Whether a District Court Must First Establish Its Own Jurisdiction Before Dismissing a Suit on Forum Non Conveniens Grouds

Per Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shipping Corp., 127 S. Ct. 1185 (March 5, 2007) (Ginsburg, J., for a unanimous Court):

The underlying controversy concerns alleged misrepresentations by a Chinese corporation to a Chinese admiralty court resulting in the arrest of a Malaysian vessel in China. . . .

. . .

The District Court [Eastern District of Pennsylvania] first determined that it had subject-matter jurisdiction under 28 U.S.C. § 1333(1) (admiralty or maritime jurisdiction). The court next concluded that it lacked personal jurisdiction over Sinochem under Pennsylvania's long-arm statute, 42 Pa. Cons.Stat. § 5301 et seq. (2002). Nevertheless, the court conjectured, limited discovery might reveal that Sinochem's national contacts sufficed to establish personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2). The court did not permit such discovery, however, because it determined that the case could be adjudicated adequately and more conveniently in the Chinese courts. No significant interests of the United States were involved, the court observed, and while the cargo had been loaded in Philadelphia, the nub of the controversy was entirely foreign: The dispute centered on the arrest of a foreign ship in foreign waters pursuant to the order of a foreign court. Given the proceedings ongoing in China, and the absence of cause “to second-guess the authority of Chinese law or the competence of [Chinese] courts,” the District Court granted the motion to dismiss under the doctrine of forum non conveniens.

A panel of the Court of Appeals for the Third Circuit agreed there was subject-matter jurisdiction under § 1333(1), and that the question of personal jurisdiction could not be resolved sans discovery. Although the court determined that forum non conveniens is a nonmerits ground for dismissal, the majority nevertheless held that the District Court could not dismiss the case under the forum non conveniens doctrine unless and until it determined definitively that it had both subject-matter jurisdiction over the cause and personal jurisdiction over the defendant. 436 F.3d 349 (C.A.3 2006).

. . .

We granted certiorari, 548 U.S. ----, 127 S.Ct. 36 (2006), to resolve a conflict among the Circuits on whether forum non conveniens can be decided prior to matters of jurisdiction. Compare 436 F.3d, at 361-364 (case below); Dominguez- Cota v. Cooper Tire & Rubber Co., 396 F.3d 650, 652-654 (C.A.5 2005) (per curiam) (jurisdictional issues must be resolved in advance of a forum non conveniens ruling), with Intec USA, LLC v. Engle, 467 F.3d 1038, 1041 (C.A.7 2006); In re Arbitration Between Monegasque De Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukraine, 311 F.3d 488, 497-498 (C.A.2 2002); In re Papandreou, 139 F.3d, at 255-256 ( forum non conveniens may be resolved ahead of jurisdictional issues). Satisfied that forum non conveniens may justify dismissal of an action though jurisdictional issues remain unresolved, we reverse the Third Circuit's judgment.

. . .

This is a textbook case for immediate forum non conveniens dismissal. The District Court's subject-matter jurisdiction presented an issue of first impression in the Third Circuit, see 436 F.3d, at 355, and was considered at some length by the courts below. Discovery concerning personal jurisdiction would have burdened Sinochem with expense and delay. And all to scant purpose: The District Court inevitably would dismiss the case without reaching the merits, given its well-considered forum non conveniens appraisal. Judicial economy is disserved by continuing litigation in the Eastern District of Pennsylvania given the proceedings long launched in China. And the gravamen of Malaysia International's complaint-misrepresentations to the Guangzhou Admiralty Court in the course of securing arrest of the vessel in China-is an issue best left for determination by the Chinese courts.

If, however, a court can readily determine that it lacks jurisdiction over the cause or the defendant, the proper course would be to dismiss on that ground. In the mine run of cases, jurisdiction “will involve no arduous inquiry” and both judicial economy and the consideration ordinarily accorded the plaintiff's choice of forum “should impel the federal court to dispose of [those] issue[s] first.” Ruhrgas, 526 U.S., at 587-588, 119 S.Ct. 1563. But where subject-matter or personal jurisdiction is difficult to determine, and forum non conveniens considerations weigh heavily in favor of dismissal, the court properly takes the less burdensome course.


Fifth Circuit Discusses Split Re: Power of Circuit Courts to Review Visa Revocations

Per Ghanem v. Upchurch, 2007 WL 666091 (5th Cir. Mar. 06, 2007):

As previously set forth, the sole issue on appeal is whether the decision to revoke a visa pursuant to 8 U.S.C. section 1155 involved the exercise of discretion, thus stripping this Court of jurisdiction to review the decision. See 8 U.S.C. § 1252(a)(2)(B)(ii). . . . Although this Court has not addressed this precise question, at least three other circuits have squarely addressed the issue and have split.The Seventh Circuit was the first to reach the issue and quickly concluded that “the discretionary nature of the decision is apparent from the plain language of the statute.” El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir.2004). The Third Circuit agreed. In Jilin Pharmaceutical v. Chertoff, 447 F.3d 196 (3d Cir.2006), the Court relied on the following language of section 1155 to determine that the decision to revoke was discretionary. . . .
On the other hand, the Ninth Circuit, over a dissent, concluded that it had jurisdiction because the “authority ... to revoke petitions is bounded by objective criteria.” ANA Int'l v. Way, 393 F.3d 886, 894 (9th Cir.2004). The Ninth Circuit held that the “good and sufficient cause” language of section 1155 “constituted a legal standard the meaning of which we retain jurisdiction to clarify.” Id. at 893.FN1 The Court also indicated that to the extent there was any ambiguity in a jurisdiction-stripping statute, it is to be resolved in favor of jurisdiction. Id. at 894.

Additionally, the Second Circuit has stated that “although the substance of the decision that there should be a revocation is committed to the discretion of the Attorney General, section 1155 [also] establishes mandatory notice requirements that must be met in order for the revocation to be effective.” Firstland Int'l v. INS, 377 F.3d 127, 131 (2d Cir.2004). Ultimately, the Second Circuit ruled that it had jurisdiction to review whether the mandatory notice requirement had been met. However, that is not in conflict with the reasoning of the Third and Seventh Circuit. . . .

We follow the lead of the Third and Seventh Circuits. The statutory language indicates that the decision is left to the discretion of the Secretary.


6th Circuit Weighs in on Circuit Split Re: Whether Carrying a Concealed Weapon Should Count as Violent Felony under ACCA; Sides with 8th Circuit

Per United States v. Flores, --- F.3d ----, 2007 WL 548921 (6th Cir. Feb. 23, 2007):

Oscar Flores was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The government appeals the district court's imposition of a sentence of 100 months of incarceration in connection with Flores's conviction. The government argues that the district court erred in concluding that Flores was ineligible to be sentenced pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and in failing to apply enhancements under the Sentencing Guidelines because the jury did not make findings on those matters. For the reasons set forth below, we hold that the district court correctly ruled that Flores's prior conviction for carrying a concealed weapon was not a conviction for a “violent felony” under the ACCA.

The government challenges the district court's determination that Flores's December 9, 1987, conviction for carrying a concealed weapon was not a conviction for a “violent felony” under the ACCA, and that Flores was therefore ineligible for the fifteen-year minimum sentence that the ACCA requires. . . . Both parties have focused their arguments on § 924(e)(2)(B)(ii), debating whether carrying a concealed weapon “involves conduct that presents a serious potential risk of physical injury to another....”

As the district court noted, there is a circuit split on the issue whether a conviction for carrying a concealed weapon “involves conduct that presents a serious potential risk of physical injury to another” such that it should count as a violent felony under the ACCA. In United States v. Whitfield, 907 F.2d 798 (8th Cir.1990), the Eighth Circuit became the first federal appeals court to address this issue. The Whitfield court's discussion of this topic, however, was short and conclusory: ["]Whitfield also claims his conviction of carrying a concealed weapon under Mo.Rev.Stat. § 571.030(1) (1985) is not a violent felony. We agree. Although carrying an illegal weapon may involve a continuing risk to others, the harm is not so immediate as to “present[ ] a serious risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii); see also United States v. Johnson, 704 F.Supp. 1403, 1407 (E.D.Mich.1989) (carrying a concealed weapon is not a violent felony), aff'd per curiam, 900 F.2d 260 (6th Cir.1990).["] Whitfield, 907 F.2d at 800.

In United States v. Hall, 77 F.3d 398 (11th Cir.1996), the Eleventh Circuit reached the opposite conclusion. The Hall court distinguished the crime of carrying a concealed weapon from the crime of possession of a firearm by a felon, which it had previously held was not a violent felony under the ACCA. Id. at 401-02 ( citing United States v. Oliver, 20 F.3d 415, 418 (11th Cir.1994)). The court reasoned that the crime of carrying a concealed weapon entails a greater risk of immediate harm than the crime of being a felon in possession of a firearm; to violate Florida's concealed weapon statute, the weapon must be immediately accessible to the defendant, while a felon may violate the felon in possession statute by possessing a firearm constructively. Id. at 401-02 n. 4.

After careful review of these conflicting cases, and of the parties' briefs, we conclude that the Eighth Circuit's approach in Whitfield is the better-reasoned position, as it is consistent with the text of 18 U.S.C. § 924(e)(2)(B) and our prior interpretations of the ACCA. We, therefore, hold that the crime of carrying a concealed weapon does not involve such “conduct that presents a serious potential risk of physical injury to another” that a conviction under Mich. Comp. Aws § 750.227 should properly be considered a conviction for a violent felony under the ACCA.


N.D. Ohio Acknowledges Possible Circuit Split Re: Whether "At Pleasure" Language in Federal Reserve Act Preempts State-Created Employment Rights

Per Nicolosi v. Federal Reserve Bank of Cleveland, 2007 WL 671318 (N.D. Ohio Feb. 28, 2007):

In her complaint, Nicolosi alleges, essentially, that the Bank indicated that she would be a long-term employee, but terminated her after a little over two years due to her dependency on alcohol and/or the absences resulting from that dependency. These sparse allegations provide the basis for the five causes of action Nicolosi asserts against the Bank: implied contract, promissory estoppel, intentional infliction of emotional distress, violation of public policy, and disability discrimination under Ohio Revised Code § 4112 .99. The Bank argues that, because Nicolosi's claims are all employment-related, state-law actions, they are preempted by the Federal Reserve Act. . . .

The Sixth Circuit has twice considered whether the “dismiss at pleasure” language at issue in the FRA applies to preempt state-created employment rights. See Ana Leon T. v. Fed. Reserve Bank of Chicago, 823 F.2d 928, 930 (6th Cir.1987); see also Arrow v. Fed. Reserve Bank of St. Louis, 358 F.3d 392 (6th Cir.2004) (stating that Leon “held that the ‘at pleasure’ clause in the Federal Reserve Act preempted employment rights created by state law. There being no principled basis on which to distinguish Leon, we are obliged to follow its holding.”). In both instances, the Sixth Circuit held specifically that employment-related claims based in state law are preempted by the FRA. See Leon, 823 F.2d at 930 (holding that the FRA preempted a national-origin discrimination claim based in Michigan state law); see also Arrow, 358 F.3d at 393 (holding that the FRA preempted gender and disability claims grounded in Kentucky state law).

Nicolosi offers . . . in rebuttal: . . . that Congress did not intend for the FRA to supersede state-law discrimination claims. . . . In support of her . . . argument, Nicolosi cites, inter alia, Mueller v. First Nat'l Bank of Quad Cities, 797 F.Supp. 656, 663 (C.D.Ill 1992). Nicolosi argues that Mueller and a number of other decisions have held that the “at pleasure” language at issue does not insulate Federal Reserve Banks from state-law based employment discrimination actions. The Court's own research reveals that there may indeed be a split among certain Circuit Courts of Appeals as to whether the FRA (or similar “at pleasure” language in federal banking statutes) preempts such actions. Compare Leon, 823 F.2d 928; Arrow, 358 F.3d 392; with Kroske v. U.S. Bank Corp., 432 F.3d 976 (9th Cir.2005); Evans v. Fed. Reserve Bank of Philadelphia, No. Civ.A.03-4975, 2004 WL 1535772, at *3-*4 (E.D.Pa. July 08, 2004) (recognizing a disagreement). Assuming that a disparity exists within the Circuit Courts of Appeals, however, this Court would still be bound by the recent decisions of the Sixth Circuit in Arrow and Leon.


First Circuit Notes Split Re Procedure for Government Enforcement of Money Judgment as Part of a Forfeiture Order

Per U.S. v. Edison Misla-Aldarondo, --- F.3d ----, 2007 WL 625124 (Mar. 02, 2007):

If the government seeks, and the court grants, a money judgment as part of the forfeiture order, then “the government need not prove that the defendant actually has the forfeited proceeds in his possession at the time of conviction.” Hall, 434 F.3d at 59. If the government has proven that there was at one point an amount of cash that was directly traceable to the offense, and that thus would be forfeitable under 18 U.S.C. § 982(a), that is sufficient for a court to issue a money judgment, for which the defendant will be fully liable whether or not he still has the original corpus of tainted funds-indeed, whether or not he has any funds at all.

The question of how the government can enforce that judgment is a somewhat different question, however. There is a split of authority as to whether the government can seize assets with a money judgment just as any judgment creditor could, or whether the government must follow the substitute assets provisions of 21 U.S.C. § 853(p) . . . .

. . .

If the government [] acts to enforce the money judgment without using the substitute assets provisions of § 853(p), it raises the question of whether that is permitted, which is a question we need not reach here. The question is important, since § 853(p) places a greater burden on the government before assets can be seized. There is some split of authority among the circuits on whether the government must follow the procedures of § 853(p) or not. See, e.g., United States v. Vampire Nation, 451 F.3d 189, 202 (3d Cir.2006) (“[T]he in personam forfeiture judgment may also be distinguished from a general judgment in personam. The judgment in personam here is one in forfeiture and is limited by the provisions of [§ 853].”); Hall, 434 F.3d at 59 (noting that a forfeiture money judgment is equivalent to a civil judgment, though that issue was not directly before the court).


3d Cir Notes Split Re Whether 18 USC §3584(a) Permits Imposition of a Consecutive Sentence to a State Sentence Where the Latter Has Yet to Be Imposed

Per U.S. v. Williams, 2007 WL 419711 (3rd Cir. Feb. 08, 2007):

Williams has not argued why we should presume vindictiveness in the present case, but even if we were to do so the district court rebutted any presumption by explaining that although it did not want to impose a consecutive sentence it believed that Williams's release from state custody precluded a concurrent sentence. (App. at 49-52.) Even if the court's understanding of the conditions under which it could impose concurrent sentences was legally erroneous (a question which we do not decide),FN1 the reasons it offered for its choice of sentence were objectively reasonable and free of vindictive motive. Indeed, since the state has surrendered custody of Williams, the consecutive sentence has not yet even injured Williams, and may turn out to be completely harmless.

FN1. It is unclear whether the district court could have imposed a concurrent sentence. Federal statutes permit courts to specify a concurrent or consecutive sentence “[i]f multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment.” 18 U.S.C. § 3584(a). The Circuits are split on whether this statute prevents the imposition of a sentence consecutive to a state sentence where the state sentence has yet to be imposed. See United States v. Andrews, 330 F.3d 1305, 1306-07 (11th Cir.2003) (collecting cases). At any rate, Williams did not raise the permissibility of a concurrent sentence either below or in this court.


6th Cir. Sides with 8th Cir. in Holding that Carrying a Concealed Weapon Does Not Qualify as a “Violent Felony” Under the Armed Career Criminal Act

Per U.S. v. Alexander, 2007 WL 419796 (6th Cir. Feb. 09, 2007):

A “violent felony,” the Act says, is “any crime punishable by imprisonment for a term exceeding one year, ... that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another .” 18 U.S.C. § 924(e)(2)(B). Under Michigan law, one violates the concealed-carry prohibition by “carry[ing] a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person ... without a license to carry the pistol as provided by law.” Mich. Comp. Laws § 750.227(2). Our sister circuits have reached conflicting conclusions on the point. Compare United States v. Whitfield, 907 F.2d 798, 800 (8th Cir.1990) (“Although carrying [a concealed] weapon may involve a continuing risk to others, the harm is not so immediate as to present a serious risk of physical injury to another .”) (internal quotation marks and brackets omitted), with United States v. Hall, 77 F.3d 398, 401 (11th Cir.1996) (“Carrying a concealed weapon is conduct that poses serious potential risk of physical injury and, so, falls under the definition of violent felony.”). Another panel of our court, see United States v. Flores, No. 06-1152 (6th Cir.), argued Jan. 24, 2007, has the issue in front of it in a case that does not involve plain-error review.

. . .

Informed by these precedents and the language of the Act, we do not think that a concealed-weapon conviction rises to the level of a “violent felony.”

. . .

Although the district court erred in labeling Alexander's prior conviction for carrying a concealed weapon a “violent felony” under the Armed Career Criminal Act, the error was not “plain.” Until today, the question presented-whether carrying a concealed weapon is a “violent felony” for purposes of the Act-was an open one in our circuit, see United States v. Flores, 118 F. App'x 49, 54 (6th Cir. Dec. 17, 2004), and it was one on which our sister circuits were divided, compare Whitfield, 907 F.2d at 800, with Hall, 77 F.3d at 401-02. The conflicting precedents on the question at hand show that the error was not plain. See United States v. Barrow, 118 F.3d 482, 492 (6th Cir.1997) ( “[I]n light [of] the circuit split ... and the lack of definitive precedent in this Circuit, the error was not ‘plain.’ ”); United States v. Williams, 53 F.3d 769, 772 (6th Cir.1995) (“[A] circuit split precludes a finding of plain error.”); United States v. Blandford, 33 F.3d 685, 712 (6th Cir.1994) ( “Because the ... issue has divided our sister circuits, we cannot see that the district court's alleged error ... was a ‘plain’ one ....”).


D. New Jersey Discusses Split Re: Availability of Damages in § 1983 Suit Where State Criminal Proceedings Still Pending

Per Muldrow v. Defazio, 2007 WL 496813 (D. N.J. Feb. 13, 2007):

Here, the Court must determine whether Muldrow may recover damages in a § 1983 suit on the basis of an allegedly illegal search and seizure while his state criminal proceedings precipitating the subject search and seizure are currently pending. The Court first looks to Heck v. Humphrey, 512 U.S. 477 (1994), in which the Supreme Court barred any suit for damages premised on a civil rights violation if the basis for the suit is inconsistent with or would undermine the lawfulness of a conviction or sentence. . . .

Specifically addressing, albeit in dicta, whether a § 1983 suit, for damages attributable to an allegedly unreasonable search, would lie in advance of a judicial determination of the invalidity of the related conviction, the Supreme Court said, ["]For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiff's conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned).["] Heck, 512 U.S. at 487 n. 7.

The circuits are split as to the proper interpretation of footnote seven. At least three circuits have held that footnote seven creates a general exception to Heck for Fourth Amendment unreasonable search and seizure claims. See, e.g., Copus v.. City of Edgerton, 151 F.3d 646, 648 (7th Cir.1998); Simmons v. O'Brien, 77 F.3d 1093, 1095 (8th Cir.1996); Datz v. Kilgore, 51 F.3d 252, 253 n. 1 (11th Cir.1995). Other circuits permit such claims to go forward only after the district court makes an individualized determination that a favorable ruling in that case would not undermine the related criminal conviction or pending criminal proceedings. See, e.g., Ballenger v. Owens, 352 F.3d 842 (4th Cir.2003); Harvey v. Waldron, 210 F.3d 1008 (9th Cir.2000); Shamaeizadeh v. Cunigan, 182 F.3d 391 (6th Cir.), cert. denied, 528 U.S. 1021 (1999); Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir.1996); Woods v. Candela, 47 F.3d 545, 546 (2d Cir.), cert. denied, 516 U.S. 808 (1995). Cf. Beck v. City of Muskogee Police Dept., 195 F.3d 553, 559 n. 4 (10th Cir.1999)(generally disagreeing with courts that make an individualized determination, but noting that the case before it was not the “rare situation ... where all evidence was obtained as a result of an illegal arrest”).

Recently, the Third Circuit concluded that a Fourth Amendment claim can be brought under § 1983, even without favorable termination, if the district court determines that success on the claim would not necessarily imply the invalidity of the conviction. Gibson v. Superintendent of New Jersey Dept. of Law and Public Safety, 411 F.3d 427, 435-39 (2005), cert. denied, 126 S.Ct. 1571 (2006). However, in those cases in which a district court determines that success on the § 1983 claim would imply the invalidity of the conviction, the cause of action is deferred until the conviction is overturned pursuant to Heck. Id. Adopting a fact-based approach to interpreting footnote seven of Heck, the Third Circuit stated: ["]... under Heck, a district court is required only to make a threshold determination as to whether a plaintiff's § 1983 claim, if successful, would have the hypothetical effect of rendering the criminal conviction or sentence invalid. If this threshold is satisfied, the district court's analysis is at an end, and the Heck deferred accrual rule is triggered.["] Id. at 451.


Tenth Circuit Notes Split Re: Finality of ERISA Remand Orders

Per Metzger v. Unum Life Insurance Co. of America, --- F.3d ----, 2007 WL 521226 (10th Cir. Feb. 21, 2007):

We analyze the finality of an ERISA remand order, such as the 2004 order, “on a case-by-case basis applying well-settled principles governing final decisions.” Rekstad v. First Bank System, Inc., 238 F.3d 1259, 1263 (10th Cir.2001) (quotation omitted). In Rekstad, we compared ERISA cases to the administrative law context, in which “a remand order is ‘generally considered a nonfinal decision ... not subject to immediate review in the court of appeals.’ “ Id. at 1262 ( quoting Baca-Prieto v. Guigni, 95 F.3d 1006, 1008 (10th Cir.1996)) (omission in original). Unless an order meets the requirements of our “practical finality rule,” we generally deem the order non-final for purposes of our review. Id. (quotation omitted). Under that rule, an order is final only if finality is “necessary to ensure that the court of appeals [is] able to review an important legal question which the remand made effectively unreviewable.” Id. (quotations omitted).FN1

FN1. Circuit courts have split over whether an order remanding a matter to an ERISA plan administrator is final. The First, Sixth, and Eleventh Circuits have held that such orders are non-final. See Bowers v. Sheet Metal Workers' Nat'l Pension Fund, 365 F.3d 535, 537 (6th Cir.2004); Petralia v. AT & T Global Info. Solutions Co., 114 F.3d 352, 354 (1st Cir.1997); Shannon v. Jack Eckerd Corp., 55 F.3d 561, 563 (11th Cir.1995). The Seventh Circuit, however, considers ERISA remand orders to be final and appealable. See Perlman v. Swiss Bank Corp. Comprehensive Disability Prot. Plan, 195 F.3d 975, 977-80 (7th Cir.1999). In Hensley v. N.W. Permanente P.C. Ret. Plan & Trust, the Ninth Circuit employed an approach similar to our “practical finality rule” and held that an ERISA remand order is final when “appellate jurisdiction is necessary to ensure proper review of an important legal question which a remand may make effectively unreviewable.” 258 F.3d 986, 994 (9th Cir.2001) ( overruled on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 966 (9th Cir.2006)).


7th Circuit Weighs In On Split Re: Grouping Offenses Under § 3D1.2(c) or (d) of Sentencing Guidelines

Per United States v. Vucko, 473 F.3d 773 (7th Cir. Jan. 12, 2007):

In the mid-1990s Vucko began to help herself to Northwest's money, eventually pilfering more than $700,000. Meanwhile, Vucko also defrauded the United States by falsely reporting her income on her tax returns for five years. After she was caught, she pleaded guilty without a plea agreement to wire fraud in violation of 18 U.S.C. § 1343 and to making a false statement in a tax return in violation of 26 U.S.C. § 7206(1). . . . At sentencing, the primary issue that Vucko raised was whether her wire fraud and tax fraud counts had to be grouped under the provisions of § 3D1.2(c) or (d). . . . On appeal, Vucko continues to urge that the district court should have grouped her two offenses for sentencing purposes. . . . Vucko is not the first person who initially committed fraud and then failed to report her income from that fraud. We are therefore not the first court to face the question whether these offenses should be grouped under § 3D1.2(c). The issue is difficult enough that it has caused a split among our sister circuits.

The Fifth Circuit encountered this problem in United States v. Haltom, 113 F.3d 43 (5th Cir.1997). Haltom pleaded guilty to one count of mail fraud and four counts of tax evasion. The district court found that grouping was inappropriate, but the court of appeals reversed. Noting that the Introductory Commentary explained that grouping provides for “incremental punishment for significant additional criminal conduct,” the court thought that the key word there was “significant.” “Sometimes,” it commented, “an additional count does not represent significant additional criminal conduct, and does not lead to an increased sentence.” Id. at 45. Turning specifically to § 3D1.2(c), the court reasoned, “Convictions on multiple counts do not result in a sentence enhancement unless they represent additional conduct that is not otherwise accounted for by the guidelines.” Id. at 45-46 (emphasis in original). The defendant's offense level under the tax guideline was increased by two, because the source of the unreported income was criminal activity. The court described as “indisputable” the fact that the mail fraud count covered conduct that was being treated as a specific offense characteristic for the tax count. Id. at 46. Immediately after so concluding, however, the court went on to concede:

As a matter of common parlance, Haltom's mail fraud and tax evasion convictions cannot readily be said to have caused “substantially the same harm.” See U.S.S.G. § 3D1.2. The mail fraud damaged the private financial interests of Haltom's corporate clients; the tax offenses harmed the government. Absent a contrary directive in the guidelines themselves, we might have considered these harms quite distinct and concluded that Haltom's offenses were not groupable. 113 F.3d at 46. It nonetheless thought that grouping was compelled by the guidelines.

The First Circuit took a different approach in United States v. Martin, 363 F.3d 25 (1st Cir.2004). There the defendant also pleaded guilty to fraud and tax evasion, and the district court decided that grouping was required. It computed an offense level of 20 for the fraud counts and 18 for the tax evasion counts, the latter including the two extra points for income derived from criminal activity that exceeds $10,000. Following an analysis similar to that in Haltom, it grouped based on § 3D1.2(c). Reversing, the First Circuit noted that the Guidelines “do not require that all of the conduct be ‘fully accounted for’; rather, it is enough that conduct ‘embodied’ in the second offense is ‘treated as an adjustment’ to the other offense.” Id. at 41 (quoting United States v. Sedoma, 332 F.3d 20, 27 (1st Cir.2003) (internal quotation marks omitted) (quoting U.S.S.G. § 3D1.2(c))). As a practical matter, the decision to group the tax and fraud offenses meant that the final offense level was two notches lower than it would have been without grouping, just as in Vucko's case. The First Circuit acknowledged that “[t]he text of § 3D1.2(c), taken alone, appears to support grouping in this case.” Martin, 363 F.3d at 42. Nevertheless, the court pointed out, the Guidelines must be interpreted in light of the Commentary, which is “authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Id. (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)). Thus, “even when one count embodies conduct treated as an adjustment to a second count, the counts cannot be properly grouped under § 3D1.2(c) unless they are ‘closely related.’ ” Martin, 363 F.3d at 42. The First Circuit held that the fraud and tax evasion counts are not “closely related” because they involve “different victims,” cause “different harms,” and required “different conduct.” Id. at 42-43. . . .

The Third and Tenth Circuits take the same approach as the First. . . . Several reasons persuade us to reject grouping in these circumstances.

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