Fifth Circuit Notes Split on SORNA-APA Intersection, and Chooses Third Way

Per United States v. Undra Johnson, __ F.3d __ (5th Cir. Feb. 4, 2011):

The courts of appeals are divided over whether the Attorney General properly complied with the APA. The Fourth and Eleventh Circuits did not find an APA violation, while the Sixth and Ninth Circuits held that the Attorney General lacked good cause. The Supreme Court has acknowledged the conflict but "express[ed] no view" on the matter.

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Here, we do not find the Attorney General’s reasons for bypassing the APA’s notice and-comment and thirty day provisions persuasive.

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... We find both errors to be harmless in the particular circumstances of this case.

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... In so holding, we recognize that our interpretation of SORNA is a position not previously held by the majority in another circuit. Cf. Dean, 604 F.3d at 1288 (Wilson, J., concurring) (endorsing the harmless error doctrine’s applicability to SORNA).

EDNY Notes Split Re Interpretatin of FRE 606(b)

Per Leibstein v. LaFarge North America, Inc., --- F.Supp.2d ----, 2011 WL 499952 (E.D.N.Y. Feb. 14, 2011):

Fed. R. of Evid. 606(b) provides that “[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations....” Fed. R. of Evid. 606(b). Query: Does Rule 606(b) preclude a juror-such as those who spoke to Elena Leibstein-from testifying about supposed misconduct by another juror learned during jury deliberations? That question does not lend itself to a simple answer, for there is a split among the Circuits on this point. Compare, e.g., Hard v. Burlington Northern R.R., 812 F.2d 482, 485 (9th Cir.1987)(Ninth Circuit held that “[s]tatements [offered in support of an application for a new trial] which tend to show deceit during voir dire are not barred by [Rule 606(b) ] )” with (1) Williams v. Price, 343 F.3d 223 (3d Cir.2003) in which then-Judge Alito opined that the Ninth Circuit decision in Hard “appears [to be] inconsistent with Fed. R. of Evid. 606(b),” id. at 236, n. 5, and (2) United States v. Benally, 546 F.3d 1230, 1235-36, 1239-41 (10th Cir.2008).

Eleventh Circuit Splits With Second Circuit Re Excusing Failure to Raise Objection Due to Anticipated Judicial Disapproval

Here is an excerpt from a post from the Florida Legal Blog noting a split between the Second and Eleventh Circuits regarding excusing the failure to make objections that judges may dislike:

In United States v. Rodriguez (08-16696), the Eleventh Circuit disagreed with the Second Circuit and began its opinion as follows:

This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.

Read the full post here.