Federal Judiciary

Fourth Circuit Concludes that § 2515 Does not Permit a Clean Hands Exception to Its Exclusionary Rule

Posted on June 16, 2009
Per U.S. v. Crabtree, 565 F.3d 887 (4th Cir. May 19, 2009):Whether § 2515 should be understood as containing a ?clean hands? exception to its exclusionary rule is an issue that has divided the circuits. The Sixth Circuit has concluded that § 2515 does not preclude the government in a criminal prosecution from introducing evidence of a recording made in violation of Title III if the government had no involvement in the illegal interception, see United States v...

M.D. Alabama Notes Split Re whether Eyewitness-Identification Expert Testimony Violates FRE 403

Posted on May 27, 2009
Per U.S. v. Smith, --- F.Supp.2d ----, 2009 WL 1444446 (M.D.Ala. May 26, 2009) The Eleventh Circuit has not had occasion to address whether eyewitness-identification expert testimony would violate [Federal Evidence] Rule 403, and other circuits have split on this question...

Eleventh Circuit Notes Split Re Relevance of Subjective Intent to Lability under the National Firearms Act

Posted on May 25, 2009
Per U.S. v. Spoerke, --- F.3d ----, 2009 WL 1423919 (11th Cir. May 22, 2009):Spoerke asserts that the pipe bombs were intended for social enjoyment, he detonated them only underwater, and he enjoyed the concussion of the device when detonated. Our sister circuits are split over whether the court should consider the subjective intent of the defendant when determining whether the device was designed as a weapon...

Second Circuit Notes Split Re Sentencing under Criminal Rule 11(c)(1)(C) and Recourse to Resentencing

Posted on April 17, 2009
Per U.S. v. Walker, Slip Copy, 2009 WL 983031 (2d Cir. Apr. 14, 2009):As the Government correctly notes in its 28(j) letter, there is currently a circuit split on the legal issue of whether defendants sentenced under Federal Rule of Criminal Procedure Rule 11(c)(1)(C) plea agreements may ever have recourse to resentencing pursuant to § 3582(c)(2)...

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Seventh Circuit Notes Split Re When a Copyright Registration Application is Complete

Posted on April 16, 2009
Per Brooks-Ngwenya v. Indianapolis Public Schools, --- F.3d ----, 2009 WL 996998 (7th Cir. Apr. 15, 2009):Compliance with the registration requirements of 17 U.S.C. § 411(a) is not a condition of copyright protection but is a prerequisite to suing for infringement...

11th Cir. Notes Split Re Whether Federal Rule of Criminal Procedure 32(i)(1)(A) Requires the District Court to Personally Ask Defendant about PSI

Posted on April 07, 2009
Per U.S. v. Martinez, Slip Copy, 2009 WL 839093 (11th Cir. Apr. 1, 2009):Martinez contends that the district court plainly erred, under Fed.R.Crim.P. 32(i)(1)(A), in failing to personally ask him whether he had read the PSI [presentence investigation report]prior to sentencing...

11th Cir. Discusses Split Re Impact of IIRIRA on Section 212(c) of the INA

Posted on April 01, 2009
Per Ferguson v. U.S. Attorney General, --- F.3d ----, 2009 WL 824434 (11th Mar. 31, 2009):INS v. St. Cyr addressed the way that two statutory amendments to the INA-namely, AEDPA and IIRIRA-impacted § 212(c), 8 U.S.C. § 1182(c).. . .The circuits are split on how to apply St...

1st Cir. Discusses Split on Issue of Apportionment of Multi-Defendant Settlement Offers to Trigger Rule 68

Posted on March 26, 2009
Per King v. Rivas, 555 F.3d 14 (1st Cir. Feb 02, 2009): The circuit courts have been divided about variations on the central problem. The Seventh Circuit has insisted that to trigger Rule 68 in multi-defendant cases an offer must contain amounts allocated to each defendant, Harbor Motor Co...

6th Cir. Reveals Split Re Whether Comity and Federalism Preclude Federal Jurisdiction over State Taxation Claims

Posted on March 23, 2009
Per Commerce Energy, Inc. v. Levin, 554 F.3d 1094 (6th Cir. Feb 04, 2009): Yet there is a circuit split. The district court heavily relied on DIRECTV v. Tolson, 513 F.3d 119 (4th Cir.2008), which, in dismissing a § 1983 claim, rejected the idea that Hibbs did anything to limit an expansive reading of Fair Assessment because the comity principle is ?broader than the Act itself, and its scope is not restricted by § 1341...

SCOTUS Resolves Split Regarding Nature of Required Predicate Offense in the Gun Control Act

Posted on March 17, 2009
Last month the Supreme Court issued a ruling in U.S. v. Hayes, 129 S.Ct. 1079 (Feb. 24, 2009), which resolved a split regarding the question of whether 18 U.S.C. § 922(g)(9) requires that the offense predicate to a defendant's firearm possession conviction have as an element a domestic relationship between offender and victim...

M.D.N.C. Chronicles Circuit Split Re Extent to which a RICO Complaint Must Allege Turkette ?Enterprise? Factors

Posted on March 16, 2009
Per AARP v. American Family Prepaid Legal Corp., Inc., 2009 WL 485154 (M.D.N.C. Feb. 25, 2009): Neither party has cited, nor has the court found, any precedent in the Fourth Circuit as to the extent to which a RICO complaint must allege the requisites of an ?enterprise? as set forth in Turkette...

E.D. Pa. Reviews Circuit Split Re Equitable Tolling of Habeas Petitions for Prisoners with Actual Innocence Claims

Posted on February 25, 2009
Per Ragan v. Horn, 2009 WL 323107 (E.D. Pa. Feb 10, 2009): Ragan also argues that his claim of actual innocence forms a basis for a grant of equitable tolling. The Circuits are split on this issue.[FN6] The Circuits that have not yet ruled on the issue, including the Third Circuit, have deferred ruling on the issue until presented with a "proper case" (i...

10th Cir. Concurrence Notes Split Re Justiciability of Employment Claims Brought by National Guardsmen

Posted on February 23, 2009
Per Hanson v. Wyatt, 552 F.3d 1148 (10th Cir. Sep 10, 2008) (Gorsuch, J., concurring): Interpreting the Supreme Court's guidance as I have, and consistent with our decision in Costner, the vast majority of circuits have held that, while judicial review may be had of congressionally authorized BCMRs, direct suits against military superiors challenging discharge and other discrete personnel decisions are not congressionally authorized and therefore would represent an inappropriate intrusion into matters textually and prudentially committed to the political branches...

Dissenting C.A.D.C. Judge Brown Describes Circuit Split Re Sentencing Guidelines for "Renting or Managing a Drug Establishment"

Posted on February 20, 2009
Per In re Sealed Case, 552 F.3d 841 (D.C. Cir. Jan 16, 2009) (Brown, J., dissenting): However, under the plain error standard that should be applied here, Appellant loses; this court has never resolved whether § 2D1.8(a)(2) sets the base offense level or is a mitigation provision, and in fact, as the majority observes but fails fully to credit, there is a circuit split on this very question...

E.D. Mo. Notes Decisional Split within Eighth Circuit

Posted on February 16, 2009
Per Jackson v. Steele, Slip Copy, 2009 WL 350633 (E.D. Mo. Feb. 10, 2009):Authority within the Eighth Circuit is mixed in regard to whether a state prisoner can raise a claim pursuant to a § 2254 petition which has only been reviewed by the state court for plain error...

William Mitchell Law Review Call for Papers ? Eighth Circuit Splits

Posted on February 12, 2009
Here is a call for papers that I received recently:Call for Papers ? Eighth Circuit Split William Mitchell Law Review, Vol. 36, Issue IV (Spring 2010) The William Mitchell Law Review is proud to dedicate its fourth issue to Eighth Circuit Splits in its upcoming Volume 36 (Spring 2010)...

N.D. Cal. Weighs In On Split Re Arbitration Consent Statute

Posted on February 10, 2009
Per Polimaster Ltd. v. RAE Systems, Inc., 2009 WL 196169 (N.D. Cal. Jan 13, 2009): Polimaster and Na & Se contend that the award may not be confirmed because the License Agreement did not contain any consent to the arbitration award being confirmed by a Court...

S.D.N.Y Tracks Circuit Split Re Applicability of Title II to Employment Discrimination

Posted on February 03, 2009
Per Melrose v. N.Y. State Dept. of Health Office of Professional Medical Conduct, 2009 WL 211029 (S.D.N.Y. Jan 26, 2009): The 4th, 5th, 9th, 10th, and 11th Circuits, as well as district courts within the Second Circuit, have addressed the applicability of Title II to employment discrimination with conflicting results...

Sixth Circuit Fuels Circuit Split Over Use of Tables to Value Lottery Winnings

Posted on January 29, 2009
The Sixth Circuit yesterday (Negron v. United States, No. 07-4460 (6th Cir. Jan. 28, 2009)) added more fuel to the split in the circuits over whether the § 7520 valuation tables should be used to value lottery payments, joining the Fifth Circuit (Cook v...

D.N.J. Bankruptcy Court Notes Split Re Mental State for Defalcation under Bankruptcy Code

Posted on January 26, 2009
Per In re Tamis, 398 B.R. 124 (Bkrtcy.D.N.J. Dec. 17, 2008):Chase seeks a judgment determining that its ?entire debt? is nondischargeable under § 523(a)(4) of the Bankruptcy Code ?because Defendants committed defalcation while acting in a fiduciary capacity...

Tenth Circuit Notes Intra-Circuit Split Re Whether Review of Sufficiency-of-the-Evidence Issue is Legal or Factual Determination

Posted on December 30, 2008
Per Hicks v. Jones, Slip Copy, 2008 WL 5378335 (N.D.Okla. Dec. 24, 2008):A writ of habeas corpus will not issue unless the state court's legal conclusions are ?contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,? 28 U...

N.D. Ill. Notes Split Re Whether Pension Plan Has Standing to Sue for Delinquent Payments under ERISA

Posted on December 08, 2008
Per Line Const. Ben. Fund v. Allied Elec. Contractors, Inc., Slip Copy, 2008 WL 5101989 (N.D. Ill. Nov. 26, 2008):Defendant contends that Plaintiff, a plan rather than a group of trustees, lacks standing to bring an action for unpaid contributions. Defendant's argument rests in part on a split in authority among the circuits as to whether a plan itself is a fiduciary within the meaning of ERISA...

E.D.N.C. Reports Circuit Split: Are Title 11 Debtor Duties Options Exclusive?

Posted on December 01, 2008
Per Coastal Federal Credit Union v. Hardiman, 2008 WL 4899529 (E.D.N.C. Oct 28, 2008): [T]he Fourth Circuit rejected the Seventh Circuit's conclusion that the three options in section 521(a)(2)(A) were exclusive. The Fourth Circuit noted, inter alia, that the Seventh Circuit's analysis rested on another case which reasoned in part from the premise that ipso facto clauses were enforceable in that circuit...

Circuit Split Widens on Aggravated Felony Issue

Posted on November 25, 2008
Per BNA's U.S. Law Week, 77 U.S.L.W. 1320 (Nov. 25, 2008): A second simple possession conviction is not an aggravated felony for immigration purposes so as to make the offending alien ineligible for cancellation of removal, the U.S. Court of Appeals for the Second Circuit holds, joining the First, Third, and Sixth Circuits in a circuit split on the question...

E.D. Va. Notes Circuit Split Re Whether "Unclean Hands" Doctrine Is Applicable to RICO Claims

Posted on November 24, 2008
Per Smithfield Foods, Inc. v. United Food and Commercial Workers Intern. Union, --- F.Supp.2d ----, 2008 WL 4899535 (E.D. Va. Oct 14, 2008): The well-recognized doctrine of unclean hands prevents a plaintiff from obtaining equitable relief if the plaintiff has been "guilty of any inequitable or wrongful conduct with respect to the transaction or subject matter sued on...

11th Cir. Identifies Split Re Whether Dist. Ct. Must Consider Each Enhancing Sentencing Factor on the Record

Posted on November 18, 2008
Per U.S. v. Santiago Moreno, 2008 WL 4787153 (11th Cir. Nov 4, 2008): The [Sentencing] Guidelines Application Note 20 states "the court shall include consideration of the following factors" in determining whether the offense [manufacture of methamphetamines] created a substantial risk of harm to human life or the environment ...

Justices Agree to Examine Arbitration Agreement; Appeals Courts Have Split

Posted on November 15, 2008
Per BNA's Class Action Litigation Report, 11/14/2008:The U.S. Supreme Court Nov. 7 granted review of an issue that the petitioner says has generated an ?intractable divide? among the federal appeals courts: Does the Federal Arbitration Act give appellate jurisdiction over the appeal from an order denying application to stay claims involving nonsignatories to an arbitration agreement? (Arthur Andersen LLP v...

D. Mont. Recognizes that "Whether a Walk-Away Escape is a Violent Crime Under the ACCA is the Subject" of a Circuit Split

Posted on November 14, 2008
Per U.S. v. Smith, 2008 WL 4534021 n.2 (D. Mont. Oct 09, 2008): The issue of whether a walk-away escape is a violent crime under the ACCA [Armed Career Criminal Act] is the subject of a split of authority within the circuits. See United States v. Springfield, 196 F...

9th Cir. Weighs in on Split Re Whether Protected Status of Speech is a Question of Mixed Law and Fact

Posted on November 12, 2008
Per Posey v. Lake Pend Oreille School Dist. No. 84, --- F.3d ----, 2008 WL 4570616 (9th Cir. Oct 15, 2008): Given the factual disputes presented in the record, we must therefore determine whether the inquiry into the protected status of speech remains one purely of law as stated in Connick, or if instead Garcetti has transformed it into a mixed question of fact and law...

E.D. Va. Notes Split Re Whether Doctrine of Unclean Hands Applies in Civil RICO Claims

Posted on November 05, 2008
Per Smithfield Foods, Inc. v. United Food and Commercial Workers Intern. Union, --- F.Supp.2d ----, 2008 WL 4610312 (E.D.Va. Oct. 14, 2008): The Defendants have asserted the affirmative defense of ?unclean hands.? The well-recognized doctrine of unclean hands prevents a plaintiff from obtaining equitable relief, if the plaintiff has been ?guilty of any inequitable or wrongful conduct with respect to the transaction or subject matter sued on...

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