Short Circuit: A Roundup of Recent Federal Court Decisions

Negligent investigation, racketeering, and gambling in Vegas.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

From 2001 to 2018, now-retired Midland County, Tex. prosecutor Ralph Petty worked on over 300 cases as both the lead prosecutor and law clerk for the judge overseeing those cases, arguing by day and (among other improprieties) drafting orders in his own favor at night—unbeknownst to the defense. This week, Erma Wilson, who was falsely convicted of drug possession, joined with IJ to file suit against not only Petty, but also the district attorney who okayed the arrangement and the county. (The judge is deceased.) Read all about it in The Wall Street Journal. Big ups to USA Today for breaking the story last year. The complaint can be found here.

• Two Brooklyn, N.Y. men who used quite a bit of violence to protect their illegal businesses (including conspiring to set fire to a rival gambling den, which killed two in an upstairs apartment) are convicted of, among a lot of things, racketeering and sentenced to over 16 years. Second Circuit: Affirmed. Dissent: It's not racketeering if it's just some guys doing felonies together. Their so-called syndicate had no name, no rules, no organizational structure, no secret handshakes. [Ed.: The fire nearly killed two. Thanks commenter apart!]
• Allegation: Truck driver leaving Albany County, N.Y. bar causes accident that kills motorcyclist, but police don't do field sobriety testing or collect any evidence and they file a dishonest report. Did this violate the motorcyclist's mother's right of access to the courts? Second Circuit: She's actively litigating state-law claims against the truck driver and the bar, so, at least for now, her claims against the police must be tossed.
• District court: I grant you leave to file your proposed amended complaint. Plaintiffs: Great, here's a totally different, way shorter amended complaint. District court: Boy, that complaint's not detailed enough. I'm dismissing it without prejudice in case you wanted to file a better complaint, like maybe that one from the first sentence of the summary. Plaintiffs: Nope, we appeal! Third Circuit: Guys. C'mon.
• Initially unable to reach a verdict, jurors request the production of an enlarged freeze frame from an informant's video that shows a Myrtle Beach, S.C. cocaine seller's face reflected in a rearview mirror (a freeze frame that was not presented prior to deliberations). They also ask—and the court orders—the defendant to stand next to the photo. He's convicted and sentenced to 17 years. Fourth Circuit (over a dissent): Habeas granted. His lawyer was unconstitutionally ineffective for failing to object more strenuously.
• Army staff sergeant serves 9 years in military prison; he's paroled, subject to a number of conditions, and supervised by a civilian parole commission. He's jailed for violating one of the conditions. But wait, does a civilian parole commission have the authority to impose parole conditions, rather than the court-martial that sentenced him? District court: No need to resolve this because he's been released, so his claim is moot. Fifth Circuit: Not so fast. He's been denied all veterans' benefits as a result of the parole violation, which may be sufficient to keep the case going.
• Civilian contractor driving to work at a San Antonio, Tex. military training base is swept away on a flooded road on base—a road that officers are supposed to inspect and close when flooded. He drowns. Fifth Circuit: And his parents can sue the feds for failing to lock the gate. Case undismissed.
• Family farmers devise a plan to have their land annexed into the town next door and rezoned for residential development, but the town zoning board scuttles the zoning application, after which the annexation request lapses. District court: You can't sue about the zoning decision because your land isn't even in the town. Case dismissed! Sixth Circuit: Right, but they're not in the town because of the zoning decision. Case un-dismissed!
• If a town's planned removal of a dam will flood a property owner's land, can there be a ripe takings claim before the dam comes down, or must the owner wait until the flood actually comes? Sixth Circuit (over a dissent): Nothing in Article III requires property owners to actually be wearing arm floaties at the time they sue; case un-dismissed.
• Plaintiff (pro se): Two Ramsey County, Minn. jail supervisors called me the n-word and ignored grievances about subordinates doing the same. The two supervisors: We have investigated and concluded we did not do that. Eighth Circuit: No doubt. Qualified immunity. (Some state-law claims are remanded, however.)
• Allegation: Woman buys, among other things, a fleece jacket on sale for $19.99 that, per the price tag, had been marked down from $39.99. But wait! The higher figure was just a gimmick. Nobody ever pays list price. Can she file a class action against the retailer? Ninth Circuit: Before we answer that, we'll ask if the Oregon Supreme Court thinks anyone's being fleeced.
• Man is convicted of tax crimes and sentenced to 21 months. But wait! He waived his right of counsel during pretrial proceedings (he was represented at trial) after a magistrate judge told him the max sentence was just 12 months. Eleventh Circuit (over a dissent): He couldn't knowingly waive his right to counsel if the judge gave him materially false info. Conviction vacated.
• Reading between the lines just a tad, your humble editor wonders if this Eleventh Circuit panel thinks that it's easy to rip off Medicaid and Medicare so long as you don't go overboard. Like this now-former Valdosta, Ga. doctor, who regularly billed the feds for seeing over 50 nursing home patients per day (sometimes 150 patients), purporting to provide services that would take 70 or more hours in a 24-hour period, and once billing for services when he was actually in Vegas gambling. His conviction and 8-year sentence are affirmed.
• Under federal law, the owner of a leased or rented car is generally not vicariously liable for any accidents their customers may cause. But what about the owner of a loaner vehicle—here a Mooresville, N.C. auto dealership that provided a car to a couple (who drove the car to Florida while theirs was in the shop)? Breaking out the law dictionary, the Eleventh Circuit says the dealership is protected from liability.

Victory! This week, the feds agreed to return 100 percent of the funds—approximately $1.1 mil—seized from IJ client Empyreal Logistics in California. The armored car company, which provides services to state-legal cannabis businesses (among other cash-intensive industries like restaurants and convenience stores) across the country, twice had its vehicles unlawfully searched and their contents seized by the San Bernardino County, Calif. sheriff's department last year. The sheriff then turned the money over to the feds for civil forfeiture through the DOJ's equitable sharing program. Empyreal's separate claims against the sheriff are not affected by the settlement. Click here for more.

New case! In 2020, Rochester, N.Y. police seized over $8k cash from Cristal Starling that she'd mostly earned from her mobile food cart business and that she'd intended to buy a food truck with. (Police suspected her now ex-boyfriend of drug dealing, but he was acquitted by a jury on all charges.) Cristal was never arrested or charged, and she did everything she could to navigate the procedural gauntlet necessary to stop her money from being forfeited. But along the way she missed a single deadline, and a federal district court ruled that that meant she lost by default. Now represented by IJ, she is asking the Second Circuit to apply the normal rules of civil procedure—where defaults are disfavored and parties without counsel are granted extra leeway in cases involving complex procedural rules—to civil forfeiture cases and to remand the case back to district court to hear the case on its merits. Click here to learn more.

Comments

[apart]

>Two Brooklyn, N.Y. men who used quite a bit of violence to protect their illegal businesses (including conspiring to set fire to a rival gambling den, which killed two in an upstairs apartment)

The Brooklyn fire didn't result in any fatalities -- the opinion states it "nearly kill[ed]" 2 people. See e.g. [this news article](https://bklyner.com/fire-consumes-building-voorhies-avenue-5-hospitalized-sheepshead-bay/).

[Noscitur a sociis]

This week, Erma Wilson, who was falsely convicted of drug possession, joined with IJ to file suit against not only Petty, but also the district attorney who okayed the arrangement and the county.

How is this suit not precluded under Heck v. Humphrey?

[3ducerist]

That's part of the question the suit wants addressed I believe. This is the second time I've seen it mentioned here but I can't recall where it was in the other mentioning.

[Noscitur a sociis]

Reading between the lines just a tad, your humble editor wonders if this Eleventh Circuit panel thinks that it's easy to rip off Medicaid and Medicare so long as you don't go overboard.

I'd say it comes across pretty good in the lines themselves:

Medicare and Medicaid combined spend $1,500,000,000,000 a year, which is more than one-third of the total health expendi- tures in this country. Like other government health care pro- grams, these two work on the honor system. Trust and more trust. Both programs take a pay first, ask questions later (if ever) approach. Which leads to crime and more crime, both sooner and later.

[mulch]

Damn. A judge and a taxpayer too.

[Sarcastr0]

...Medicare and Medicaid do audits. You don't need to make a theoretical policy argument, we have actual observation.

Their metrics are generally between 5 and 10% to waste/fraud. Which I believe is better than most HMOs on a percentage basis, if not in absolute terms.

Source: my Mom works in the Medicare auditing field.

[Gasman]

"Habeas granted. His lawyer was unconstitutionally ineffective for failing to object more strenuously."

I'm certain Mr. Ross was thinking of this scene as he wrote his above quote.
https://www.youtube.com/watch?v=bOnRHAyXqYY

[SomeGuy 2]

Yeah, what the hell is this? The attorney objected and was overruled. The judge then made an order that the parties went with. If the objection was improperly overruled, then it might be a ground for relief. But "Oh, she objected, but she didn't object hard enough" is just absurd Monday morning quarterbacking, not nearly meeting the high bar of ineffective assistance of counsel. So now South Carolina either has to let this guy go free or start over with a new trial. Absurd.

The silver lining is the underlying crime (distro of cocaine) shouldn't be a crime or, alternatively, is so trivial so South Carolina should just let the guy go, they've already had him locked up for a decade. But it's a horrible precedent for cases with actual dangerous criminals.

[Noscitur a sociis]

Note that, contrary to the summary, the court concluded that the lawyer didn't object, but merely attempted to. That seem right to me: this was the "objection" (to ordering the defendant to stand next to the screen, she didn't object at all to showing the jury the still):

THE COURT: Any objection?

WITHERSPOON’S COUNSEL: I would, Your Honor, but...

THE COURT: I think that is appropriate. Please stand.
Please stand.

It's not, on the other hand, clear to me that there was actually a valid basis for an objection here.

[Toranth]

That's what confused me about this example.

If having the defendant stand next to the image was improper, then shouldn't the Fourth have objected to that, rather than the "ineffective counsel"? But if the presentation wasn't improper, then what did it matter if the lawyer objected or not?

[David Nieporent]

then shouldn't the Fourth have objected to that, rather than the "ineffective counsel"?

Not unless the trial lawyer objected. Otherwise, the objection is waived. Which is where ineffective assistance of counsel comes in.

[Rev. Arthur L. Kirkland]

I credit and thank the author(s) of Short Circuit for the forthright, honorable handling of corrections.

[Calliope]

That decision on the military case (Foster) is an embarrassment. Are they actually using parole and supervised release interchangeably?

[Davy C]

If there is some “sound trial strategy” in yielding to the presentation of new evidence during jury deliberations that is patently injurious to one’s own client

It's only "patently injurious" to your client if your client is (or at least bears a close resemblance to) the person in the video. Imagine if the video had shown someone else - the jury would have come back in a few minutes with a not guilty verdict instead. But the defense lawyer describes the lack of clarity of the video as "the one bright shiny spot we had in the case", and doesn't lament the fact that it wasn't more clear so everyone could see that it *wasn't* the defendant. Gee, I wonder why.

The lawyer could easily have made the tactical decision to *not* object, seeing as how the jury was asking for it directly and the video was blurry. Think of how it looks if you're on a jury and the defense insists that the guy on the video isn't the defendant - but they're going to block your attempts to actually try to compare the two. It doesn't look good, to say the least. You can't call the lack of objection here an ineffective assistance of counsel.

And it's only "new evidence" if you consider a freeze-frame of an already admitted video, or a look at the defendant himself, to be "new evidence". I would argue that it is not. The video (including all of its frames) was already in evidence, and the defendant was available for the jury to look at during the trial (if they chose to spend their time staring at him rather than paying attention to the trial itself.) It seems stupid to me that we hobble our juries like this, only allowing them to compare a full-motion video to what they remember the defendant - who they never met before - looks like.

And finally, my pet peeve: He was convicted in 2013. It's currently 2022. Courts, you really need to get your act together. This guy shouldn't get relief - but if he did deserve relief, ordering a new trial after 9 years of appeals is halfway to being worthless. He's already served over half the sentence. And if there is a new trial, the witnesses will have to try to remember things from over a decade ago. And now the jury gets to try to compare a blurry video to a guy who aged a decade in prison.

[KenveeB]

I agree. The IAC law is supposed to be designed so that courts don't second-guess strategic decisions, but that's all the court is doing here. Was it the wrong call? Maybe, maybe not. Constitutionally ineffective? Not even close.

[Davy C]

Florida’s dangerous instrumentality doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.

Why? Why would you make such a law?

Oh, the precedent dates from 1920. Maybe it made sense then, but I don't see how you can call something "peculiarly dangerous" in an age when almost everyone of driving age has one and uses it daily. It's no longer peculiarly dangerous; it's dangerous in a very ordinary everyday way.

[John F. Carr]

Many states (I know of no exception) impose some form of liability on the owner of a car for its operation. This liability dates back to the time when cars were uncommon and dangerous, and maybe more importantly were often operated by a poor servant who could not pay the costs of a major accident and not by the rich owner who could. In Massachusetts there is only a rebuttable presumption of owner liability. In New York owner liability extended to the big finance companies that owned cars whose lessees killed sympathetic victims whose tear-dripping survivors had outraged jurors send a message to the deep-pocketed evil bankers. Said bankers had their lobbyists enact a federal law exempting them from liability.