Seventh Circuit Notes Split Re Analysis to Determine If Case is "Extraordinary" for Purposes of Sentencing

Per U.S. v. Swanson, 2008 WL 2795275 (7th Cir. Jul 21, 2008):

Still, in "extraordinary cases" both an upward adjustment (for obstruction) under § 3C1.1 and a downward adjustment (for acceptance) under 3E1.1(a) may be warranted. U.S.S.G. § 3E1.1, cmt. n. 4; Davis, 442 F.3d at 1009-10. Swanson suggests that the circuits are split on how to analyze whether a case is extraordinary, and while the circuits are indeed technically "split," this circuit's law is settled and in the company of the majority of the courts of appeals. In United States v. Buckley, 192 F.3d 708, 711 (7th Cir.1999), we joined several other circuits that had rejected the Ninth Circuit's holding in United States v. Hopper, 27 F.3d 378, 383 (9th Cir.1994). Buckley described Hopper as improperly allowing an obstructive defendant to "wipe the slate clean, and earn the acceptance of responsibility discount, just by pleading guilty and thereafter refraining from obstructing justice further."


Third Circuit Notes Split Re Treatment of Jurisdictional Attack Intertwined with Merits

Per CNA v. U.S., --- F.3d ----, 2008 WL 2801978 (3rd Cir. Jul 22, 2008):

A split among our sister courts of appeals has emerged on the proper procedure for handling situations in which jurisdiction is intertwined with the merits. In some circuits, whether a Government employee was acting in the scope of his employment for purposes of an FTCA claim must be handled as a question of the merits in order to give plaintiffs the appropriate procedural safeguards ( e.g., having a plaintiff's allegations assumed as true). See Montez v. Dep't of the Navy, 392 F.3d 147, 150 (5th Cir.2004) ("[W]e follow our general rule in holding that a jurisdictional attack intertwined with the merits of an FTCA claim should be treated like any other intertwined attack, thereby making resolution of the jurisdictional issue on a 12(b)(1) motion improper."); Lawrence, 919 F.2d at 1529 (vacating and remanding for consideration under Rule 12(b)(1)); see also Augustine, 704 F.2d at 1079 (treating the administrative claim requirement of § 1346(b)(1) as relating too closely to the merits to be handled under Rule 12(b)(1)). Yet the Second Circuit Court of Appeals recently reached the opposite conclusion on how a scope-of-employment dispute should be handled procedurally in the FTCA context. In Hamm v. United States, 483 F.3d 135, 137 (2d Cir.2007), it held that "where a waiver of sovereign immunity does not apply, a suit should be dismissed under Fed.R.Civ.P. 12(b)(1) and not Fed.R.Civ.P. 12(b)(6) for failure to state a claim."


Ninth Circuit Notes Split Re Reviewability of Remand Based on Declining Supplemental Jurisdiciton

Per California Dept. of Water Resources v. Powerex Corp., --- F.3d ----, 2008 WL 2797031 (9th Cir. Jul 22, 2008):

As DWR notes, the Federal Circuit has come to the opposite conclusion, holding that "a remand based on declining supplemental jurisdiction must be considered within the class of remands described in § 1447(c) and thus barred from appellate review by § 1447(d)." HIF BIO, Inc. v. Yung Shin Pharm. Indus. Co., 508 F .3d 659, 667 (Fed.Cir.2007). That decision, which split with several circuits, id. at 665, found support in the Supreme Court's recent statement that "[i]t is far from clear ... that when discretionary supplemental jurisdiction is declined the remand is not based on lack of subject-matter jurisdiction for purposes of § 1447(c) and § 1447(d)." Powerex Corp. v. Reliant Energy Servs., Inc., 127 S.Ct. 2411, 2418-19 (2007).

The Federal Circuit's disagreement does not give a three-judge panel in this circuit license to overrule the binding, authoritative decision of a prior three-judge panel. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003) (en banc). Similarly, that the question remains unanswered by the Supreme Court does not relax our obligation to abide by stare decisis. In light of clear precedent, then, we hold that review of a district court's decision to decline an exercise of supplemental jurisdiction is not barred by § 1447(d).


Ninth Cir. Adopts "Natural Tendency Test" in Deciding "Materiality" in the Context of the False Claims Act

Per U.S. v. Bourseau, --- F.3d ----, 2008 WL 2718878 (9th Cir. Jul 14, 2008):

The Supreme Court has stated that "[i]n general, a false statement is material if it has 'a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed.' " Neder v. United States, 527 U.S. 1, 16 (1999). Yet, circuit courts are split on how to measure materiality in the context of the FCA. See Medshares Mgmt. Group, Inc., 400 F.3d at 445. The Fourth and Sixth Circuits have adopted a "natural tendency test" for materiality, which focuses on the potential effect of the false statement when it is made rather than on the false statement's actual effect after it is discovered. Id . The Eighth Circuit has adopted a more restrictive "outcome materiality test," which requires a showing that the defendant's actions (1) had "the purpose and effect of causing the United States to pay out money it is not obligated to pay," or (2) "intentionally deprive[d] the United States of money it is lawfully due." Id. (citing Costner v. URS Consultants, 153 F.3d 667, 677 (8th Cir.1998)). We agree with the Fourth and Sixth Circuits that the natural tendency test is the appropriate measure for materiality because it is more consistent with the plain meaning of the FCA. Id.


D.R.I. Notes Split Re Automatic Divestiture of Jurisdiction Following Interlocutory Appeal of the Denial of a Motion to Stay & Compel Arbitration

Per Narragansett Elec. Co. v. Constellation Energy Commodities Group, Inc., --- F.Supp.2d ----, 2008 WL 2467008 (D.R.I. Jun 18, 2008):
In this case Judge Woodcock reviewed the authority regarding interlocutory appeals of the denial of a motion to stay and compel arbitration under the FAA, and concluded that such an appeal "divests the district court of the power to proceed with the aspects of the case on appeal." Id. at 142. Therefore, he granted the defendant's motion to stay discovery pending appeal of its motion to stay and to compel arbitration. Id.

As Judge Woodcock noted, on this issue, a split exists among the circuits. Id. at 143; see Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 215 n. 6 (3d Cir.2007) (expressing agreement with "the majority rule of automatic divestiture where the Section 16(a) appeal is neither frivolous nor forfeited"); McCauley v. Halliburton Energy Servs., Inc., 413 F.3d 1158, 1162-63 (10th Cir.2005) (finding automatic divestiture of trial court jurisdiction unless appeal is frivolous or forfeited); Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249, 1251 (11th Cir.2004) (finding automatic divestiture unless appeal is frivolous); Bombardier Corp. v. Nat'l R.R. Passenger Corp., No. 02-7125, 2002 WL 31818924, at *1, 2002 U.S.App. LEXIS 25858, at *2 (D.C.Cir. Dec. 12, 2002) (denying a motion to stay as unnecessary because the circuit court has "exclusive jurisdiction to resolve the threshold issue whether the dispute is arbitrable, and the district court may not proceed until the appeal is resolved"); Bradford-Scott, 128 F.3d at 505 (endorsing automatic divestiture rule, reasoning that "[c]ontinuation of proceedings in the district court largely defeats the point of the appeal and creates a risk of inconsistent handling of the case by two tribunals"); but see Motorola Credit Corp. v. Uzan, 388 F.3d 39, 65 (2d Cir.2004) (finding no automatic stay); Britton v. Co-op Banking Group, 916 F.2d 1405, 1412 (9th Cir.1990) (finding no automatic stay).

Judge Woodcock concluded, based on his reading of the First Circuit's decision in Lummus Co. v. Commonwealth Oil Refining Co., 273 F.2d 613 (1st Cir.1959), that the majority view favoring an automatic stay of those issues involved in the appeal is the better view.


Sixth Circuit Reports Split Re Relation Back of Government's Interest in Substitute Assets in Forfeiture Context

Per U.S. v. Parrett, --- F.3d ----, 2008 WL 2619886 (6th Cir. Jul 03, 2008):

This statutory provision regarding substitute assets does not explicitly provide for relation back; currently the circuits are split as to whether the government's interest in substitute property relates back to the date of the act giving rise to the forfeiture in the same way as the government's interest vests regarding property directly tainted by the illegal activity. Although the Tenth Circuit has held that the relation-back provision of § 853(c) is "silent as to § 853(p) substitute property," Jarvis, 499 F.3d at 1204-05, the Fourth Circuit has held that the forfeiture of substitute property "relates back to the date of the acts giving rise to the forfeiture ." United States v. McHan, 345 F.3d 262, 272 (4th Cir.2003). The different conclusions illustrate different conceptions of proper statutory interpretation. The Tenth Circuit focused on the plain language of § 853, holding that the federal government has only a "potential and speculative future interest" in substitute assets prior to conviction and the fulfillment of certain statutory conditions found in § 853(p)(1)(A)-(E) (aimed at assessing when substitute property may be used to satisfy a judgment). Jarvis, 499 F.3d at 1204-05. In contrast, the Fourth Circuit read § 853 in light of what it considered to be the statute's broader purpose; it held that, because the purpose of relation back was to " 'prevent defendants from escaping the impact of forfeiture by transferring assets to third parties,' and the purpose of § 853(p) was similarly to address this very 'impediment[ ] to significant criminal forfeitures,' " the forfeiture of substitute property "relates back to the date of the acts giving rise to the forfeiture." McHan, 345 F.3d at 272 (quotations omitted).


M.D. Fla. Notes Split Re Whether Coercive Terry Stops Constitute Miranda Custody

Per U.S. v. Artiles-Martin, Slip Copy, 2008 WL 2600787 (M.D. Fla. June 30, 2008):

There is currently a split in the circuits over whether coercive Terry stops constitute Miranda custody .FN38 While the Eleventh Circuit has not expressly adopted either view, the Circuit addressed this issue in United States v. Acosta.FN39
FN38. The First, Fourth, and Eighth Circuits hold that so-called Terry reasonableness means Miranda warnings are not required, even if the stop was coercive. See, United States v. Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir.2003) (finding that a suspect is not in custody when an investigative stop is reasonable); United States v. Trueber, 238 F.3d 79, 92 (1st Cir.2001) (same); United States v. Leshuk, 65 F.3d 1105, 1110 (4th Cir.1995) (same). The Second, Seventh, Ninth and Tenth circuits hold that a coercive Terry stop requires warnings but still is deemed a valid Terry stop. See, United States v. Newton, 369 F.3d 659, 673 (2d Cir.2004) (“This Court has specifically rejected Fourth Amendment reasonableness as the standard for resolving Miranda custody challenges.”); United States v. Kim, 292 F.3d 969, 976 (9th Cir.2002); United States v. Ali, 68 F.3d 1468, 1472-73 (2d Cir.1995) (holding that whether a stop was permissible under Terry is irrelevant to the Miranda question, because “Terry is an exception to the Fourth Amendment probable cause requirement, not to the Fifth Amendment protections against self-incrimination.”); United States v. Smith, 3 F.3d 1088, 1097 (7th Cir.1993); United States v. Perdue, 8 F.3d 1455.
FN39. 363 F.3d 1141, 1148-1150 (11th Cir.2004)


N.D. Ohio Finds Split Among Circuits Re Question of Habeas Petitioners' Mental State as one of Fact or Mixed Law and Fact

Per Stallings v. Bagley, --- F.Supp.2d ----, 2008 WL 918712 (N.D. Ohio Mar 31, 2008):

In its prior discovery order, the Court assumed, without deciding, that
§ 2254(d)(2) would apply. Since issuing that order, however, it appears that circuit courts have split on this issue. The Fifth Circuit in Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir.2006), held that "the question of whether [a habeas petitioner] suffers from significantly subaverage intellectual functioning is a question of fact, and not a mixed question of law and fact...." Id. Recently, however, the Fourth Circuit applied the test used in § 2254(d)(1) without expressly adopting it. See Green v. Johnson, 515 F.3d 290, 300 (4th Cir.2008)(finding that Supreme Court of Virginia correctly applied Atkins and thus its opinion was not " 'contrary to' clearly established federal law .").

While the Sixth Circuit has yet to adjudicate whether a state court finding regarding a habeas petitioner's mental retardation is a question of pure fact under § 2254(d)(2), that Court has held that the issue of whether a petitioner is competent to stand trial is a factual question. In Mackey v. Dutton, 217 F.3d 399, 413 (6th Cir.2000), the Sixth Circuit, contrary to its prior findings, held " § 2254(d)'s presumption of correctness applies to a trial court's competency determination." Id. Although the Mackey court noted it previously had held in Cremeans v. Chapleau, 62 F.3d 167 (6th Cir.1995), that competency determinations are mixed questions of law and fact, it concluded that the subsequent United States Supreme Court holding in Thompson v. Keohane, 516 U.S. 99, 111, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), superceded the Cremeans holding. Id.


Ninth Circuit Dissent Condemns Split from Seventh Circuit Cases Holding Sale of Property Ends Endorsement of Religion

Per Buono v. Kempthorne, 527 F.3d 758 (9th Cir. May 14, 2008) (O'Scannlain, J., dissenting):

Buono IV squarely contradicts two Seventh Circuit opinions holding that "[a]bsent unusual circumstances, a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion." Freedom from Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 491 (7th Cir.2000) (upholding the sale of a portion of a municipal park on which stood a statue of Jesus with arms extended); see also Mercier v. Fraternal Order of Eagles, 395 F.3d 693, 702-03 (7th Cir.2005) (upholding the sale of a portion of a municipal park with monument of Ten Commandments). The Seventh Circuit properly applied the principle that once publicly-owned land is transferred to a private party, government action ceases, and the Establishment Clause violation necessarily goes with it. Marshfield, 203 F.3d at 491 ("Because of the difference in the way we treat private speech and public speech, the determination of whom we should impute speech onto is critical.").

Nevertheless, the Buono IV opinion splits from the Seventh Circuit's rule and from binding Supreme Court precedent by creating an "unusual circumstances" test that extends well beyond the limited circumstances in which state action persists.

Buono IV also splits from the Seventh Circuit on a second, equally important issue. After holding that the government failed the Lynch endorsement test by inadequately distancing itself from the Sunrise Rock memorial, the opinion upholds a remedy compelling the VFW to sacrifice its private rights in Sunrise Rock to cure the government's constitutional violation. Buono IV, 502 F.3d at 1085-86; see also Buono II, 371 F.3d at 548-49 (discussing Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)).

. . .

By holding that a private citizen's rights may be infringed simply because his land was publicly owned in the past, or because it presently sits next to publicly-owned land, or because a hypothetical viewer might mistakenly confuse it with such land, the Buono IV opinion recklessly splits from the Seventh Circuit and announces a broad and unprecedented rule that should not be allowed to stand.


8th Cir. Concurrence Notes Split Re "Multi-Factor" Approach to Determination of Prior Conviction's "Similarity" to Offense in Criminal History Statute

Per U.S. v. Leon-Alvarez, 527 F.3d 732 (8th Cir. Jun 10, 2008) (NO. 07-2146):

BRIGHT, Circuit Judge, concurring.

In adhering to the "elements" or "essential characteristics" approach to determine whether a prior conviction has the requisite similarity to an offense in
§ 4A1.2(c)
, we specifically rejected the multi-factor approach employed by the Second and Fifth Circuits:

We thus decline Borer's suggestion that we adopt a multi-factor approach championed by the Fifth Circuit and others, which also considers the underlying facts of the defendant's offense, as well as such matters as a "comparison of punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, ... the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct." United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); see also United States v. Martinez-Santos, 184 F.3d 196, 205-06 (2d Cir.1999); United States v. Booker, 71 F.3d 685, 689 (7th Cir.1995). We share the concern of the Fourth Circuit that some of the factors used in these multi-factor tests are vague, subjective, or lacking in unifying principle, such that they "leave the law indeterminate." See Harris, 128 F.3d at 854-55.

Having compared the Second and Fifth Circuit's multi-factor approach with our own, I consider the multi-factor approach to be the fairer method of determining whether a prior conviction is similar to an offense listed in § 4A1.2(c). Criminal history calculations can greatly affect a defendant's sentence, as this case aptly illustrates. Eventually, the circuits' split should be resolved.

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