Judge Carnes writes another witty opinion

United States v. Gary White starts this way:

“Kleptocracy” is a term used to describe “[a] government characterized by rampant greed and corruption.” The American Heritage Dictionary of the English
Language 968 (4th ed. 2000); see also New Oxford American Dictionary 963 (3d ed. 2010); Random House Webster’s College Dictionary 724 (2d ed. 1998). To that definition dictionaries might add, as a helpful illustration: “See, for example,
Alabama’s Jefferson County Commission in the period from 1998 to 2008.” During those years, five members or former members of the commission that governs Alabama’s most populous county committed crimes involving their “service” in office for which they were later convicted in federal court. And the commission has only five members. One of those five former commissioners who was convicted did not appeal.1 We have affirmed the convictions of three others who did.2 This is the appeal of the fifth one.

Judge Carnes also ends the opinion with a one-word paragraph "Indeed" after quoting the district court on sentencing:

You see, when someone’s elected to a position of trust as an elected official, they don’t have the right . . . they don’t have a right to have a bag . . . at all. It’s not a function of how big the bag is, they just don’t have a right
to have a bag that they can carry around stuff they get from people that are involved with them in this process. And, so, I think a sentence which is 120 months total is appropriate.

In other news, Curt Anderson covers the $2.1 million payment by the feds in the photo editor's anthrax death. Details here.

Back to work...

I see that the good professor did a good job last week at the conn.

Some good news to report -- Judge Bob Scola will have his hearing this Wednesday, June 22, 2011 at the Dirksen Senate Office Building, Room 226, at 2:30 p.m. This is good news and it's good to see that his nomination is moving relatively quickly.

Looks like I have some light reading to do now that I'm back -- Judge Carnes issues two lengthy and significant opinions last week -- United States v. Hill and Johnson v. Dept of Corrections(163 pages and 69 pages). Hill is a mortgage fraud case with lots of twists and turns. Here's a quick summary from Business Week:

But the three-judge panel soundly rejected his arguments in a scathing 163-page opinion that traced the plot from its inception to its downfall. The decision painstakingly recounted and then dismissed almost every objection filed by Hill and the others during the 31-day trial, which involved more than 100 witnesses and thousands of pages of documents.

"Without Hill there would have been no conspiracy, no massive amount of mortgage fraud resulting from it, and no ruined lives in the wake of it," read the opinion. "He bore the greatest responsibility for the massive crime and deserved the longest sentence."

Interestingly, Carnes ruled for a state death row habeas petitioner in Johnson based on ineffective assistance of counsel back from 1980. From the intro:

Earlier this year the Supreme Court reminded lower federal courts that when the state courts have denied an ineffective assistance of counsel claim on the merits, the standard a petitioner must meet to obtain federal habeas relief was intended to be, and is, a difficult one. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786 (2011). The standard is not whether an error was committed, but whether the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not enough, because “[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington, ___ U.S. at ___, 131 S.Ct. at 785 (quotation marks omitted). And “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id., 131 S.Ct. at 786.

When faced with an ineffective assistance of counsel claim that was denied on the merits by the state courts, a federal habeas court “must determine what arguments or theories supported or, [if none were stated], could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id., 131 S.Ct. at 786. So long as fairminded jurists could disagree about whether the state court’s denial of the claim was inconsistent with an earlier Supreme Court decision, federal habeas relief must be denied. Id., 131 S.Ct. at 786. Stated the other way, only if “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents” may relief be granted. Id., 131 S.Ct. at 786.

Even without the deference due under § 2254, the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), standard for judging the performance of counsel “is a most deferential one.” Harrington, ___ U.S. at ___, 131 S.Ct. at 788. When combined with the extra layer of deference that § 2254 provides, the result is double deference and the question becomes whether “there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id., 131 S.Ct. at 788. Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding. This is one of those rare cases.

Justice Scalia complains of an “Alfred Hitchcock line of…jurisprudence.”

A unanimous Supreme Court (per Alito) in NASA v. Nelson upheld the government's right to conduct background checks on employees. Justice Scalia (along with Justice Thomas) concurred, saying that the Court again refused to answer the main questions presented by the case and that the minimalist strategy of the Court is bad for lower courts and others trying to figure out what the case means. From the NY Times:

Justice Antonin Scalia, writing for himself and Justice Clarence Thomas, issued a caustic concurrence. He said he “of course” agreed with the result in the case, saying the plaintiffs’ objections to the background checks were ridiculous.

“The contention that a right deeply rooted in our history and tradition bars the government from ensuring that the Hubble telescope is not used by recovering drug addicts” is, he said, “farcical.”

But Justice Scalia aimed his harshest criticism at the six justices who signed the majority opinion, returning to a theme he pressed last year — that the court is violating its duty and harming its reputation in issuing vague decisions.

“Whatever the virtues of judicial minimalism,” he wrote, “it cannot justify judicial incoherence.”

The majority opinion, he continued, “provides no guidance whatsoever for lower courts” and “will dramatically increase the number of lawsuits claiming violations of the right to informational privacy.” Though the court ruled against the plaintiffs, he said, the majority opinion amounts to “a generous gift to the plaintiffs’ bar.”

Justice Scalia said he would have taken a simpler approach in the case, NASA v. Nelson, No. 09-530.

“I would simply hold that there is no constitutional right to ‘informational privacy,’ ” Justice Scalia wrote.

“Like many other desirable things not included in the Constitution,” he wrote, “ ‘informational privacy’ seems liked a good idea.” But he said it should be enacted through legislation rather than imposed by judges through constitutional interpretation.

While we are on the subject of fun writing, Judge Carnes is at it again, this time in Carolyn Zisser v. The Florida Bar. The intro:

This case reminds us of the observation of the Grand Inquisitor in Gilbert and Sullivan’s The Gondoliers. Upon finding that all ranks of commoners and servants have been promoted to the nobility, he protests that there is a need for distinction, explaining that: “When everyone is somebody, then no one’s anybody.”* The same is true of a state bar’s certification process. If every attorney who practices in an area is certified in it, then no one is anybody in that
field. The easier it is to be certified, the less that certification means. The goal of the Florida Bar’s certification process is to recognize in various fields of specialization exceptional attorneys, meaning those who stand out from others in all of the ways that make an attorney outstanding. To ensure that certification achieves its purpose, the Bar has established a body of rules and procedures, including a confidential peer review process, so that an attorney
certified in an area of practice truly is “somebody” in that field. Without such rules and procedures, the process, the decisions it produces, and the resulting recognition would not amount to much.

*W. S. Gilbert, The Savoy Operas 543 (Wordsworth Editions 1994) (1889) (spelling altered).

Back to work...

Hope everyone had a nice new year. It's good to be back. A quick look at what was missed the last week:

1. The Cuban Spies strike back... against their lawyers. From the Miami Herald:

In his appeal, Hernandez, 45, contends that his trial attorney, Paul McKenna, mishandled his defense at a 2001 Miami federal trial by focusing so much on the shoot-down location.

That strategy overshadowed evidence that Hernandez purportedly did not know in advance about the deadly Cuban plot over the Florida Straits, the appeal asserts. Evidence of his advance knowledge was crucial to proving his role in the murder conspiracy.

"In short, Hernandez's lawyer was his worst enemy in the courtroom," his appellate attorneys wrote in a habeas corpus petition filed in Miami federal court.

2. Judge Carnes vs. Judge Tjoflat in Floride Norelus v. Denny's Inc.

Both SFL and Kosher Meatball cover this 2-1 case about sanctions against the Amlongs for a 63-page errata sheet. From Judge Carnes' intro:

No one’s memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three or four. But not 868 of them. In this case, the plaintiff’s attorneys, William and Karen Amlong, filed a sixty-three page errata sheet containing 868 attempted changes to their client’s deposition testimony, which was the sole source of evidentiary support for their client’s claims. The district court exercised its authority under 28 U.S.C. § 1927 to sanction the Amlongs. This is their appeal, or more specifically their second appeal.

But what struck me was not so much Judge Carnes' colorful way of writing about the case (agree with his decisions or not, he makes reading them fun), but instead how he engages Judge Tjoflat (the concurring judge, District Judge Bowen, did not join in any of these remarks):

• As the magistrate judge found and no one (with the possible exception of the
  dissenting judge on this panel) seriously contests, the improper submission of the
  massive errata document rendered the eight days spent on Norelus’ deposition a
  waste of time and money to say nothing of the time the attorneys were forced to
  spend on the issues created by the document itself.
• Up to this point, we have addressed the issues related to the errata document
  and the award of sanctions as those issues have been raised and defined since that
  document was submitted fourteen years ago. Our dissenting colleague, by contrast, has hatched a brand new theory—a theory that was never raised by the parties, never considered by the district court, and never argued to this Court. The theory
  that he has conjured up is that the errata sheet was really nothing more than a
  “letter” from Karen Amlong to defense counsel. It was not, he insists, an errata
  sheet because he thinks it was never presented to the court reporter or affixed to
  Norelus’ deposition as, he thinks, Federal Rule of Civil Procedure 30 requires. Dissenting Op. at 1. He is wrong on his premises and wrong in his conclusion.
• Instead of recognizing the obvious import of Norelus’ own certification or following our precedent about who has the burden on appeal where there are any ambiguities, the dissenting judge would remake the case entirely along different factual lines, lines that only he sees.
• From its inception, the errata document has been understood by all, except our dissenting colleague, to be a Rule 30 errata sheet.
• That certification itself and its use to assert “exceptions” to the deposition belies the dissent’s far-fetched assertion that the errata sheet was nothing more than a letter from one attorney to another. And there is more.
• The Amlongs, the defendants, the magistrate judge, the district court judge, all three judges of this Court in Amlong I, everyone in the district court after the remand, and both parties in briefing and arguing the present appeal have understood that. Everyone has understood it—except for our dissenting colleague.
• Now, after almost a decade-and-a-half of litigation, he has been able to discern what everyone else has overlooked: that the Rule 30 errata sheet is not really a Rule 30 errata sheet, but it is instead “a document, although entitled ‘errata sheet,’ [which] had no more legal efficacy than a letter.” Dissenting Op. at 22. During a period of almost fifteen years of looking at the document, no one else has ever thought it was just a letter. And no wonder. Treating the errata sheet as nothing more than a letter is like arguing after Gettysburg that the warring sides had been mistaken all along about the bombardment of Fort Sumter, that it was actually nothing more than a diplomatic overture.
• And the dissenting judge’s extraordinary perception does not end there. He
  is even able to perceive that everyone else’s inability to see that the errata sheet isnot really an errata sheet is not the fault of the Amlongs, who designated it an
  errata sheet and have been arguing for almost a decade and a half that is what it is, and not the fault of all the judges who have consistently treated it as an errata sheet, but instead is the fault of—who else is left? Defense counsel, of course. See Dissenting Op. at 2, 19–20, 22–23.
• Even beyond the facts, there is another problem with the dissent’s attempt to inject the not-an-errata-sheet-but-just-a-letter issue into the case at this point. The issue has been defaulted about as many times and in about as many ways as any issue can be.

Sorry for all the bullets, but wow. Is it me, or was that opinion something more than a "diplomatic overture"?

3. SFL won the blog fantasy football league this year. Well done!

4. Mona and I won the Above the Law fantasy football league.

5. I beat Rumpole in the regular season head-to-head football challenge, but we will continue it into the playoffs. It was a fun battle, especially because watching the Dolphins was torture.

6. Tom Goldstein of ScotusBlog is leaving Akin Gump and is going back out on his own. (Via ATL)

Judge Carnes on the Armed Career Criminal Act

Like him or not; agree with him or not; Judge Carnes is a gifted writer. From United States v. Rainer:

• This is yet another felon-in-possession case involving yet another variation on the issue of whether a previous conviction qualifies as a “violent felony” for purposes of the enhanced penalties provided in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).
• Rainer’s non-frivolous contention is that the district court erred when it decided at sentencing that he qualified for an enhanced sentence under the ACCA, 18 U.S.C. § 924(e)(1), which applies to a defendant convicted under § 922(g) who has three previous convictions for violent felonies or serious drug offenses.
• The question is whether “building of Richie’s Shoe Store, Inc.”and “building of, to wit: Whiddon’s Gulf Service Station” in the indictments show that Rainer’s convictions were for burglary of a shoe store and service station, places that fall squarely within the scope of generic burglary.
• But a vehicle could not be used to carry on the business of a gasoline service station, which is mainly to dispense gasoline for sale. While a shoe store theoretically could be operated out of a vehicle, that possibility is too farfetched to undermine our conviction that Rainer’s two previous convictions were for burglary of a building in the generic burglary sense of the word.
• The ACCA is part of the real world, and courts should not refuse to apply it because of divorced-from-reality, law-school-professor-type hypotheticals that bear no resemblance to what actually goes on.

11th Circuit issues 112 opinion reversing one of its own

The case is United States v. Farley, and I confess that I haven't read the whole thing yet. What struck me is that the court reverses Judge Beverly Martin, the newest member of the 11th Circuit, in an opinion she wrote as a district judge. She held at the district level that a 30-year min/man sentence was unconstitutional as cruel and unusual. The 11th Circuit, per Judge Carnes, reversed. This case might have legs to the Supremes...

"We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment..."

Whether or not you agree with Judge Carnes, he's an excellent writer and a lot of fun to read. Check out his opinion today in Friends of the Everglades v. So. Fla. Water Mgmt. Hat Tip Curt Anderson. The text below in italics is Carnes'.

Here's the issue: This appeal turns on whether the transfer of a pollutant from one navigable
body of water to another is a “discharge of a pollutant” within the meaning of the
Clean Water Act, 33 U.S.C. § 1362(12).

No way to turn that into a fun opinion to read, right? Wrong. Right up front he's quoting a country singer: “But progress came and took its toll, and in the name of flood control, they made their plans and they drained the land.” John Anderson, “Seminole Wind,” on Seminole Wind (BMG Records 1992).

How's the water in those canals around the Lake? The area south of Lake Okeechobee’s shoreline was designated the Everglades Agricultural Area. The Corps dug canals there to collect rainwater and runoff from the sugar fields and the surrounding industrial and residential areas. Not surprisingly, those canals contain a loathsome concoction of chemical contaminants including nitrogen, phosphorous, and un-ionized ammonia.

Not the impression you want to make at oral argument: We begin with the cross-appeal, which contests the dismissal of the Water District on Eleventh Amendment immunity grounds. The parties disagree mightily about this issue and had gotten so wrapped up in the arguments about it that none of them had stepped back to ask why it matters. We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment they could offer no good reason why we, or they, should care if the Water District is in or out of this lawsuit. We believe that it does not matter at all.

The supplement filed after oral argument wasn't much better. A "sic" and getting mocked for using the third person: Two-and-a-half weeks after oral argument, however, we received a supplemental letter from attorney Nutt in which, referring to himself in the third person, he stated: “The Executive Director’s counsel did not have an opportunity to address the Court’s question, posed at the very end, whether the remedies available against the Executive Director through the fiction of Young are the same as the remedies available as [sic] against the District were it not immune. They are not.” The belated letter is not helpful.

More fun stuff: To decide questions that do not matter to the disposition of a case is to separate Lady Justice’s scales from her sword. That we will not do. Cf. George E. Allen, The Law as a Way of Life, 27 (1969) (“The scales of justice without the sword is the impotence of law.”).

What's an opinion if there aren't some baseball references: The unitary waters theory has a low batting average. In fact, it has struck out in every court of appeals where it has come up to the plate. … The Court has not, however, called the theory out yet. … The Friends of the Everglades, arguing against ambiguity, pitch us other decisions. … Deciding how best to construe statutory language is not the same thing as deciding whether a particular construction is within the ballpark of reasonableness. … None of the decisions the parties have thrown our way helps either side much.

Have you lost your marbles yet? Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting “any addition of any marbles to buckets by any person.” A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marblemover “add[ed] any marbles to buckets”? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other of the issue, we cannot say that either side is unreasonable.