Unintended Ambiguity: Sentencing Enhancements for “Physical Restraint” in the Federal Sentencing Guidelines

BACKGROUND

Congress created the United States Sentencing Commission (USSC) through the Sentencing Reform Act of 1984. The USSC established Federal Sentencing Guidelines––effective since 1987—to provide more structure and certainty to the administration of punishment in the federal court system. The sentencing guidelines aim to assign fair, relatively consistent sentences by providing different levels of offense seriousness: as the crimes get more serious, the offense level correspondingly rises. The aim of these Guidelines was to take away what many previously viewed as unfettered discretion held by federal trial judges. After the U.S. Supreme Court’s holding in United States v. Booker in 2005, these Guidelines are no longer mandatory, but judges must provide an explanation when exercising their discretion to depart from them.

The Guidelines include enhancements, which are provisions that increase the length of a sentence for a crime. Enhancements generally fall within two broad categories: 1) non-recidivist enhancements, which may stem from the particular circumstances of the offense or 2) recidivist enhancements, which are based on the defendant’s criminal history. In robbery charges there is, among other circumstance-based enhancements, an enhancement that increases the offense level by two levels if any person was physically restrained to facilitate commission of the offense or to facilitate escape. The Guidelines define “physically restrained” as “the forcible restraint of the victim such as by being tied, bound, or locked up.” 

THE ISSUE

Can the sentencing enhancement for physically restraining a victim apply when the defendant only threatened the victim with verbal threats and a firearm, but without actual physical contact?

THE SPLIT

A majority of circuits have taken a position on this issue and can generally be divided into two camps: 1) those that believe it can suffice to restrain from movement due to threats and 2) those that require actual physical contact. 

The First, Fourth, and Tenth Circuits take the position that threats without contact can suffice for “physical restraint” to have occurred. In United States v. Miera (2008), the Tenth Circuit held that the sentencing enhancement applied where the defendant stood in front of the bank’s door waving a gun and demanded that the bank’s occupants “don’t move.” The court posited that physical restraint is not limited to physical touching and that keeping someone from doing something is inherent within the concept of restraint. In the court’s view, the enhancement would not apply if Miera had simply walked up to the teller’s station with a gun visible in his waistband and demanded money. However, because Miera blocked the exit, pointed the gun, and commanded the individuals to not move, the actions in the aggregate amounted to physical restraint.

Similarly, the Fourth Circuit case United States v. Dimache (2011) involved the defendant pointing a gun at and threatening multiple bank tellers, ordering them to the floor and telling them not to move. The court determined these actions constituted physical restraint because the essential character of physical restraint is the deprivation of a person’s freedom of personal movement. So long as a victim is prevented from moving due to a threat of physical force, that is enough; physical restraint is not limited to actual touching. A case in the First Circuit, United States v. Wallace (2006), involved a defendant who blocked the victim’s path when she tried to escape and ordered her at gunpoint to stop. The court stated that the aggregate of the circumstances left “no doubt” that the one victim was physically restrained. 

The Second, Fifth, Seventh, Ninth, and D.C. Circuits hold differently, requiring “restraint” to involve actual physical contact. The Second Circuit in United States v. Taylor (2020) vacated the district court’s application of the sentencing enhancement and established its own standard in doing so. According to the Second Circuit, a finding of physical restraint is based on three factors: 1) the restraint must be physical (as opposed to mental); 2) it must be restraint, and not force, restricting the victim’s freedom of movement; and 3) it must be more than a direction to move that is typical of most robberies, given that it must facilitate—not constitute—the offense. Under those factors, “herding victims into a defined area” does not qualify as physical restraint. The court stressed in its reasoning that the enhancement should not be given excessive application to the point where it could apply to virtually every robbery (in which case the only instances the enhancement would not apply would be where the premises was unoccupied or where the robber actually instructed the victims that they should feel free to move about or leave).

The Fifth Circuit in United States v. Garcia, the Seventh Circuit in United States v. Herman, and the D.C. Circuit in United States v. Drew each stress the importance of the word “physical” as a modifier of “restraint.” The Fifth Circuit noted that “restraint” by itself may have many forms (physical, mental, moral, etc.) and that the word “physical” is doing at least some work. The D.C. Circuit similarly commented that physical restraint “must, as the language plainly recites, be physical.” The Seventh Circuit stated that “(w)ords should mean something . . . that the Guidelines call for physical restraint tells us that not all restraints warrant the two-level enhancement.” In other words, the Seventh Circuit has adopted a standard of looking at the defendant’s actions, not the victim’s inactions. 

LOOKING FORWARD

Congress intended the USSC to establish Guidelines that bring about more consistency in sentencing, not less. The “physical restraint” sentencing enhancement is a topic that is ripe for review, as circuit courts have divided on this issue. Even circuits in agreement have engendered their own distinct tests. The Supreme Court to date has denied certiorari to cases involving this subject. The Court must address the circuit split to resolve this issue and provide jurisprudential consistency. Until it does, criminal defendants will be given disparate sentences based on the jurisdiction in which they are convicted.

 

 

Foster Care and the First Amendment: What are the Requirements for Proving a Free Exercise Violation Under Smith?

BACKGROUND

The First Amendment prohibits Congress and other legislative bodies from enacting laws that violate the right to the free exercise of religion. At the most basic level, this means that laws that specifically target religion, whether it be attempting to regulate religious beliefs or conduct associated with those beliefs, are unconstitutional and cannot stand. Laws that do not specifically target religion but may have an incidental effect on religion are also subject to review and may potentially be found unconstitutional as well. While these laws are subject to review under a heightened scrutiny standard, they do not receive strict scrutiny review unless the free exercise claim is combined with another constitutional claim. 

This right to free exercise is not unlimited. In 1990, the Supreme Court held that an individual’s religious beliefs do not excuse them from compliance with an otherwise valid, generally-applicable, conduct-regulating law in Employment Division v. Smith (1990). In Smith, the Court found that a state could deny unemployment benefits to two drug counselors who had been fired for ingesting peyote as part of a religious ceremony with the Native American Church because the law involved did not specifically target religious practice, was “generally applicable”, and only incidentally burdened the free exercise of religion. Smith lowered the threshold for upholding an otherwise neutral law that had potential impacts on religious freedom to only rational basis scrutiny, meaning the State need only prove that a rational connection exists between the law and a legitimate state objective. This precedent was further clarified three years later in Church of Lukumi Babalu Aye v. City of Hialeah (1993), when the Court held that the general applicability requirement applies to the purpose of the law as well as to its application to all persons.

Following these decisions, many state legislatures and courts began to limit the reach of the Smith decision in a self-described attempt to protect religious freedom. This included Congress’ passing of the Religious Freedom Restoration Act (1993), which provided that whenever a (federal) law “substantially burdens” a religious practice, it may not be applied unless it satisfies strict scrutiny standards. Many individual states also created their own versions of religious freedom acts and interpreted their state constitutions to require strict scrutiny review for free exercise claims.

THE ISSUE

Given this increase in conflicting interpretations of the Free Exercise Clause and the requirements of a successful free exercise violation claim, the Courts of Appeal have become deeply divided. A majority of the circuits have found that individuals may use evidence that suggests a law is not neutral or generally applicable to prove their claim. However, two other circuits have directly contradicted this majority approach, arguing instead that individuals bringing a free exercise claim may only use a particular type of evidence to prove their claim: that the government would have allowed the same conduct by someone who did not hold the claimant’s religious views. A recent Third Circuit decision that ruled against the majority approach only served to deepen this divide among the sister circuits. This has ultimately led to a single question: what are the requirements for proving a free exercise violation under Smith?

THE SPLIT

            The Second, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits have all held that a free exercise plaintiff can rely upon multiple forms of evidence to prove that a law is not neutral or generally applicable, such as the fact that the government issues individualized exemptions or the law’s history indicates non-neutrality. One of the most recent decisions to support this outcome came in 2012 from the Sixth Circuit in Ward v. Polite (2012). In Ward, a graduate counseling student was removed (and later expelled) from her position at her state university counseling center for refusing to counsel LGBTQ+ patients, instead referring them to other counselors. The student argued that her Christian faith prohibited her from “affirming” or “validating” the “homosexual behavior” of her clients. As such, she claimed her free exercise rights were violated when the university refused to provide her an exemption from counseling LGBTQ+ patients. The Sixth Circuit ultimately agreed that the student’s First Amendment right had been violated as the university policy allowed for “secular exemptions, but not religious ones” from counseling patients, and the university had further failed to “apply the policy in an even-handed, much less faith-neutral, manner” to the plaintiff. In reaching this conclusion, the Sixth Circuit joined other appellate circuits in allowing the use of exemption-based evidence to support a free exercise violation claim.

Recently, the Third Circuit joined the Ninth Circuit in reaching the opposite conclusion. In Fulton v. City of Philadelphia (2019), the City of Philadelphia excluded Catholic Social Services, a private adoption agency associated with the Archdiocese of Philadelphia, from signing a foster-care contract with the city. Philadelphia rationalized this decision based on the adoption agency’s practice of refusing to work with married same-sex couples, who the agency viewed as unmarried. Therefore, the agency viewed placement with same-sex couples as against its practices of placing children in the homes of married or single foster parents, but not in the homes of “cohabitating unmarried couples.” The city argued that this practice violated the city’s anti-discrimination practices. Catholic Social Services sued, claiming that its free exercise rights had been violated by this exclusion. Employing the precedent established in Smith, the Third Circuit held that no free exercise violation had occurred, as the city’s non-discrimination policy was a “neutral, generally applicable law” and the religious views of the adoption agency “do not entitle it to an exception from the [anti-discrimination] policy.” Further, the Third Circuit reasoned that Catholic Social Services had failed to demonstrate a violation of its free exercise rights, as it had not provided any evidence that it had been treated differently because of its religious beliefs, nor had it demonstrated that it would have received different treatment had it been a secular organization in the same position. As such, the Third Circuit ruled in favor of the city of Philadelphia and joined the Ninth Circuit in furthering the divide among the Courts of Appeal over the requirements for proving a free exercise violation.

LOOKING FORWARD

            On February 24, 2020, the Court granted certiorari in the case of Fulton v. City of Philadelphia but has yet to set a date for oral arguments. The current 5-4 conservative majority may suggest that the Court will rule in favor of the adoption agency. The recent decisions in Our Lady of Guadalupe School v. Morrisey-Berru (2020) (holding that the “ministerial exception” under the First Amendment prohibits the adjudication of employment discrimination claims made by Catholic school teachers) and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020) (holding that federal agencies had authority under the Affordable Care Act to promulgate rules exempting employers with religious or moral objections from providing contraceptive coverage to their employees) appear to reaffirm this belief, as the Court sided with religious institutions in both cases. However, the recent decision in Bostock v. Clayton County (2020) (holding that Title VII applied to workplace discrimination against the LGBTQ+ community) may complicate this argument. While not specifically involving the First Amendment, Bostock saw both Chief Justice Roberts and Justice Gorsuch join the Court’s liberal justices in voting to protect the LGBTQ+ community from discrimination. Thus, how these Justices will choose to balance the competing interests of religious freedom and protection from discrimination remains to be seen.

For further reading, see: Trinity Lutheran Church v. Comer: An Unfortunate New Anti-Discrimination Principle (2017)by Edward Correia and Employment Division v. Smith and State Free Exercise Protections (2017) by Matthew Linnabary.

If a Sound Recording Is Copied and Nobody Hears It, Is There Copyright Infringement?

BACKGROUND

One of the exclusive rights of a sound recording copyright holder is the right to produce derivative works, or “copies that directly or indirectly recapture the actual sounds” of an original recording. 17 U.S.C. §114 (b). A copyright owner may rearrange, remix, or otherwise alter in sequence or quality “the actual sounds fixed in the sound recording” to create a derivative work. 17 U.S.C. §114 (b).  This right, however, does not prohibit “the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.” 17 U.S.C. §114(b).

Sampling refers to the copying of audio from an existing sound recording, potentially changing the pitch or tempo of the original recording and incorporating the clip into a new recording. In a copyright infringement suit, the de minimis exception applies when the alleged copying is so minimal that it is not actionable copying. See Ringgold v. Black Entm’t Television Inc. (2d Cir. 1997). A copied product exceeds the de minimis threshold when the copy is substantially similar to the original. However, the Sixth and Ninth circuits have split as to whether the de minimis exception applies when copyrighted sound recordings are sampled.

THE ISSUE

Does 17 U.S.C. §114(b) expand the exclusive rights of sound recording copyright holders such that the de minimis exception does not apply?

THE SPLIT

The Sixth Circuit has held the de minimis exception inapplicable for claims alleging sound recording infringement and has adopted a bright-line rule that any sampling of a sound recording violates the exclusive rights of a copyright holder. The Ninth Circuit has held the exact opposite, applying the de minimis exception to sound recording sampling infringement actions.

In Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit held that the de minimis inquiry did not apply when the defendant admitted to sampling, and therefore copying, a sound recording. The court argued that sampling violated a copyright owner’s exclusive right to create derivative works. The court concluded that a sample was a derivative work because of the statutory language in §114(b) describing derivative works as sounds from an original recording that “are rearranged, remixed, or otherwise altered.” Further supporting its holding, the Sixth Circuit interpreted the inclusion of the term “entirely” in §114(b) as signifying that a sound recording owner has the exclusive right to sample his own recording no matter the amount sampled. The court justified its elimination of the de minimisexception and adoption of this bright-line rule for three reasons. First, the court highlighted the “ease of enforcement” in requiring artists either “[g]et a license or do not sample.” The court did not view this bright-line rule as stifling creativity because an artist can imitate or duplicate a sound without sampling and infringing on the original. Second, the court maintained that the “market will control the license price” such that it will not become unreasonable. Third, the court argued that “sampling is never accidental.” The Sixth Circuit reasoned that because sampling “is a physical taking rather than an intellectual one,” the de minimis exception does not apply. 

In VMG Salsoul, LLC v. Ciccone, the Ninth Circuit expressly disagreed with its sister circuit’s decision, holding that sampling 0.23 seconds of audio did not exceed the de minimis threshold and therefore did not infringe on the original copyrighted sound recording. The court evaluated whether “an average audience would recognize the appropriation” to determine if the sampled audio exceeded the de minimis standard. Emphasizing that the plaintiff’s own expert witness could not discern which notes of the original sound recording were sampled, the court concluded that an “average audience would not do a better job,” and therefore, there was no infringement.

The plaintiff in VMG Salsoul urged the court to apply Bridgeport’s bright-line rule that for “copyrighted sound recordings, any unauthorized copying—no matter how trivial—constitutes infringement,” but the Ninth Circuit refused to do so. The court cited legal precedent showing that the “rule that infringement occurs only when a substantial portion is copied is firmly established in the law.” Then, the court turned to the statutory text. The court noted that 17 U.S.C. §102, which lists copyrightable works of authorship, “treats sound recordings identically to all other types of protected works” and nothing in the text indicates that sound recording should be treated differently than any other work. The court found nothing in the statutory text to suggest that “Congress intended to eliminate the de minimis exception” for sound recordings. The court then addressed 17 U.S.C. §114(b), which was central to the Sixth Circuit’s holding. Focusing on the sentence containing “entirely” just as the Sixth Circuit had, the court described the sentence as “imposing an express limitation on the rights of a copyright holder” and hesitated to “read an implicit expansion of rights into Congress’s statement of an express limitation on rights.” The court interpreted this provision as only dictating that a “new recording that mimics the copyrighted recording is not an infringement . . . so long as there was no actual copying” without eliminating the longstanding de minimis exception for sound recordings.

The court went so far as to call the Sixth Circuit’s decision illogical and emphasized that a “statement that rights do not extend to a particular circumstance does not automatically mean that rights extend in all other circumstances.” Further, the court explicitly rejected Bridgeport for three reasons. First, the court did not find the “physical taking” component of sampling as suitable justification for eliminating the de minimis exception. The court reasoned that physical taking “exists with respect to other kinds of artistic works as well, such as photographs,” and the de minimis rule still applies to those works. Second, the court acknowledged that even if sound recordings could be treated differently than other works according to the statute, “that theoretical difference does not mean that Congress actuallyadopted a different rule.” The court hesitated to eliminate the de minimis exception without Congress’s explicit intention to do so. Lastly, the court highlighted the contradiction between the Sixth Circuit’s argument that its decision would be beneficial for musicians by saving costs and the Supreme Court’s express assertion in Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. that the Copyright Act does not protect the “sweat of the brow” or the fruit of an author’s labor.

LOOKING FORWARD

In the digital age, this issue cannot be left unresolved. Artists will continue to sample sound recordings as sampling is popular within the music industry, but this ambiguity makes it difficult to anticipate whether sampling invariably requires a license or whether a license requirement can be determined on a case-by-case basis. Because the deadline to submit a petition for certiorari to the Supreme Court has passed for both cases, this circuit split will remain unresolved for the foreseeable future.

Losing Your Second for a Lifetime: Does Prior Involuntary Institutionalization Trigger a Lifelong Ban on Firearm Possession?

BACKGROUND

Federal law prohibits the possession of firearms by persons who have been involuntarily committed to a mental health institution by a state court. This ban, part of the “Gun Control Act” and codified at 18 U.S.C. § 922(g), also applies to people who have been convicted of a felony, convicted of a domestic violence misdemeanor, or have been dishonorably discharged from the United States Armed Forces, among others. However, federal law does not dictate for how long one may be banned from possessing a firearm—is it weeks? Months? Years? Decades?

Duy Mai was seventeen years old in 1999, when he was involuntarily committed to a mental health institution by a Washington court. His commitment spanned more than nine months to account for the court’s ruling that Mai was “mentally ill and dangerous.” Since his release in 2000, Mai has earned a GED, a bachelor’s degree, and a master’s degree. He is a father and asserts that he is “socially-responsible, well-balanced, and accomplished.” And, he argues, he no longer has a mental illness. Now he wants to buy a gun. The Ninth Circuit Court of Appeals says he may not.

THE ISSUE

Does 18 U.S.C. § 922(g)(4) impose a lifetime ban on firearm possession after involuntary institutionalization?

THE SPLIT

The Ninth and Third Circuits have held that, yes, involuntary institutionalization does trigger a lifelong ban on firearm possession. The Sixth Circuit has held that it does not.

In Mai v. United States (2020), the Ninth Circuit affirmed the district court’s dismissal of Duy Mai’s claim. There, he argued that a lifelong imposition of 18 U.S.C. § 922(g)(4) violated his Second Amendment rights. Some states have been able to grant their citizens relief from this ban through inquiries allowed under 34 U.S.C. § 40915 (“Authority to Provide Relief from Certain Disabilities with Respect to Firearms”),  but Washington’s program did not meet the robust requirements to make Mai eligible for such relief. Assuming arguendo that the lifetime ban burdened Mai’s Second Amendment right to bear arms, the Ninth Circuit applied intermediate scrutiny to his claim. The judges balanced the statutory objectives and any important governmental purpose of § 922(g)(4) with the substantial limitations it places on Mai’s freedoms. Citing to prior United States Supreme Court precedent, the judges concluded that the government’s important responsibilities to prevent suicide and crime outweighed any as-applied limitation on Mai’s right to possess a firearm. After all, the Court noted, this right is not unlimited. The Ninth Circuit also cited to its own prior ruling on 18 U.S.C. § 922(g)(9) from United States v. Chovan, where the court determined that a lifetime ban on gun ownership was appropriate for someone who had been convicted of a domestic violence misdemeanor “regardless of present-day rectitude.”

The Sixth Circuit used the same general framework as the Ninth Circuit but came to a different conclusion. Like Mai, the plaintiff in Tyler v. Hillsdale County Sheriff’s Department (2016), argued that a lifetime ban on firearm ownership violated his Second Amendment right since he no longer suffered from mental illness. Tyler had been involuntarily committed more than thirty years ago following a particularly emotional divorce. Also like Mai, Tyler conceded that the ban may be appropriate where a person continues to suffer, which was not true in his case. The Court applied intermediate scrutiny for the same reasons as cited in Mai—assuming, arguendo, that the Second Amendment right is burdened, the decision to lifetime ban must be substantially related to the stated government justifications. Unlike Mai, however, the Sixth Circuit did not consider a lifetime ban fit for the justifications. The government failed to show that there was a substantial relationship between the two primary justifications (suicide prevention and crime reduction) and the ban, according to the Court. As such, the Sixth Circuit reversed and remanded for further application of as-applied intermediate scrutiny.

Like the Ninth Circuit, the Third Circuit also found that § 922(g)(4)’s lifetime ban passed muster. The plaintiff in Beers v. Attorney General of the United States (2020) was involuntarily committed to a mental health institution in Pennsylvania in 2005. He had expressed suicidal ideations to his parents and had also used a firearm to demonstrate these ideations. His mother noted that she feared his access to a firearm gave him the means to complete any plans to end his life. The state twice renewed Beers’s commitment before his final release in 2006. Not long after discharge, Beers attempted to purchase a firearm. His application was denied once a background check revealed his prior involuntary commitment.  Beers challenged this denial in the Eastern District of Pennsylvania, but that court dismissed the matter for failure to state a claim. Upon appeal, the Third Circuit affirmed the denial.

In a departure from the approaches taken by the Ninth and Sixth Circuits, the Third Circuit concluded that Beers’s Second Amendment rights were not substantially burdened, and therefore, the court did not apply intermediate scrutiny. The Third Circuit applied the framework it had established in Binderup v. Attorney General of the United States (2016), which requires a challenger to the federal firearm ban to “(1) identify the traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member, and then (2) present facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class.” Only if a litigant can demonstrate both elements will their rights be considered burdened, triggering intermediate scrutiny. In addition to outlining historical notions of mental illness in society, the Third Circuit also looked to pre-Second Amendment literature cited in Binderup. There, the court referenced The Address and Reasons of Dissent of the Minority of the Convention, of the State of Pennsylvania, to Their Constituents (1787). The Address notes that a citizen would be ineligible to bear arms if they were a “real danger of public injury.” The court interpreted this to extend to someone who creates a real danger to the self as well. In returning to Binderup’s logic, the Third Circuit concluded that Beers could not establish how he could distinguish himself from this class (mentally ill individuals). Binderuprecognized neither the passage of time nor evidence of rehabilitation as distinctions from the class of excluded individuals. With no other bases for distinction, the court concluded Beers’s right was not burdened. Beers filed a petition for certiorari to the U.S. Supreme Court, who granted certiorari, but remanded the case with instructions to dismiss as moot.

LOOKING FORWARD

            In 2019, nearly forty-thousand people were killed and thirty-thousand were injured by incidents involving a firearm. With the United States grappling with its relationship with guns and the Second Amendment, understanding the limits (or lack thereof) of Second Amendment rights is critical. This extends beyond the conversation here—who can have guns, when they may use them, and where they may be stored or taken is inherently a part of the national conversation on violence in this country. The issue, and many others, needs to be addressed at the highest level. Whether involuntary commitment to a mental health institution triggers a lifelong ban on firearm ownership is ripe for Supreme Court review—does such a record make you lose your Second [Amendment] for a lifetime?

You Have the Right to Remain Silent—But Only if You’re Told You Do?

BACKGROUND

The Fifth Amendment to the United States Constitution states that “no person . . . shall be compelled in any criminal case to be a witness against himself.” The Supreme Court held in Miranda v. Arizona that interrogation of an individual who is in government custody is presumed to be compulsive. Reciting the warnings that the Court spelled out in Miranda, including the “right to remain silent,” provides a safeguard against violating a criminal suspect’s Fifth Amendment right to be free from self-incrimination in the coercive setting of government custody. Implicit within Miranda warnings is the assurance that a defendant’s silence “will carry no penalty.” Wainwright v. Greenfield. Consequently, prosecution cannot use a criminal defendant’s silence after Miranda warnings have been given in its case-in-chief to prove the defendant’s guilt. 

Surprisingly, the question remains as to whether a defendant’s silence in response to government interrogation post-arrest but pre-Miranda warnings can be used against the defendant at trial as substantive evidence of guilt. 

THE ISSUE

Can the prosecution use a criminal defendant’s silence after the defendant is in custody but before Miranda warnings are given as evidence of guilt in its case-in-chief? 

THE SPLIT

In the 2013 case Salinas v. Texas, the Supreme Court held that a defendant’s non-response to a question by law enforcement while not in custody is admissible and can be used against the defendant as evidence of guilt. But the Court did not explicitly state whether a defendant’s pre-Miranda silence in response to interrogation is admissible if the defendant is in custody. While the Ninth, Tenth, and D.C. Circuits prohibit using post-arrest, pre-Miranda warning silence as substantive evidence of guilt, the Fourth, Eighth, and Eleventh Circuits allow the prosecution to use a defendant’s silence at any timeprior to the issuance of Miranda warnings.

On one side of the split, the Ninth Circuit has held that prosecution may only use a defendant’s post-arrest, pre-Miranda silence for the purpose of impeaching the defendant’s testimony, but not for its case-in-chief. In United States v. Hernandez, the court noted that a defendant’s right to remain silent is triggered by any custodial interrogation, not just when the defendant has been read Miranda rights. The D.C. Circuit went one step further in U.S. v. Moore, stating that “custody not interrogation is the triggering mechanism for the right to pretrial silence under Miranda.” The D.C. Circuit’s holding means that the prosecution cannot comment on a defendant’s silence while in custody prior to Mirandawarnings, even if there has been no interrogation. 

In contrast, in United States v. Cornwell, the Fourth Circuit held that presenting video footage at trial which showed the defendant’s silence in response to police questioning did not violate his Fifth Amendment rights “[b]ecause Cornwell had not received Miranda warnings at the time the video was recorded.” Similarly, the Eight Circuit in United States v. Osuna-Zepeda held that presenting evidence to the jury about a defendant’s failure to make a statement at the time of his arrest, but before he was given Miranda warnings, did not violated his Fifth Amendment right. The court noted that “an arrest by itself is not government action that implicitly induces a defendant to remain silent.”  

Eleventh Circuit precedent was established in 1991 in United States v. Rivera, in which the court held that the prosecution could comment at trial on the defendant’s silence when she was in custody because Miranda warnings had not yet been given. In 2016, the Eleventh Circuit in United States v. Wilchcombe followed the Rivera precedent, but acknowledged the entrenched circuit split and the lack of guidance from the Supreme Court. The court noted that Salinas was not controlling because in contrast to the defendants in Wilchcombe, the Salinas defendant was not in custody at the time of the silence in question. Nevertheless, the Eleventh Circuit in Wilchcombe affirmed a lower court decision to allow the prosecution to use the defendants’ silence after they were apprehended but before Miranda warnings were delivered as proof of guilt.

LOOKING FORWARD

The Supreme Court has the opportunity to resolve this circuit split by granting certiorari in Palacios-Solis v. U.S. In Palacios-Solis, the U.S. Coast Guard stopped and boarded a vessel in the Pacific Ocean and detained three defendants who were suspected of smuggling cocaine. The Coast Guard officers did not recite Miranda warnings, and the defendants remained silent in the face of the officers’ questions. The Eleventh Circuit, based on its own precedent, declined to overturn the district court’s decision to allow the prosecution to use the defendants’ pre-Miranda silence as evidence of guilt. The court again acknowledged the circuit split but, as in Wilchcombe, chose to follow its circuit precedent because the Supreme Court has not addressed this specific issue. Defendants have filed a petition for writ of certiorari. 

The Supreme Court should grant certiorari to resolve this deep circuit split and to ensure that law enforcement and lower courts honor the constitutional rights of criminal defendants in custody. Until the split is resolved, defendants’ right to remain silent will vary by jurisdiction. In some circuits, their silence after arrest, but before they have been told they have the right to remain silent, can be used against them at trial. 

Prosecution cannot use defendants’ responses to custodial interrogation against them if they have not received Miranda warnings, nor can prosecution use non-response to questions after Miranda warnings have been given. But in the Fourth, Eighth, and Eleventh Circuits, the government can use defendants’ silence in the face of custodial interrogation against them when police do not recite Miranda warnings. As Judge Rosenbaum’s state in her concurring opinion in Palacios-Solis, such an anomalous result “eviscerates the purposes of Miranda” and creates a significant risk of violating the Fifth Amendment rights of criminal defendants in those circuits. A suspect in custody cannot voluntarily relinquish the privilege against self-incrimination if he doesn’t know he has the privilege in the first place.

Additionally, as  the D.C. Circuit noted in U.S. v. Moore, allowing the prosecution to comment at trial on a defendant’s pre-Miranda silence while in custody provides a perverse incentive for law enforcement to delay Miranda warnings and use a defendant’s refusal to answer questions against him or her at trial. Until the Supreme Court clarifies this issue and resolves the circuit split, the extent of a defendant’s right to remain silent after arrest will vary by jurisdiction. 

Generic or Descriptive? Trademark Protection in the Internet Age

Background

A trademark is a type of intellectual property that allows brand recognition for unique products or services. The Lanham Act is a federal statute that governs trademarks and provides guidelines for trademark registration. Under the Lanham Act, generic terms cannot be registered as trademarks. Since generic terms should be available for all competitors to use to describe their products, trademarks must be distinctive. Allowing a business to trademark a generic term would undermine competition in the free market economy and create a monopoly in a particular industry. 

With the rise of online businesses, several companies have applied for trademark protection for a generic term followed by .com. Examples include Weather.com, Law.com, and Booking.com. The decisions rendered by the U.S. Patent and Trademark Office (PTO) have varied; trademarks for Weather.com and Law.com were approved, while a trademark for Booking.com was denied because the PTO found that the term was too generic. 

The Issue

Does the addition of .com to a generic term for an online business create a registerable trademark despite the Lanham Act’s prohibition on trademarking generic terms?

The Split

In the case of In re Hotels.com, L.P., the United States Court of Appeals for the Federal Circuit ruled that Hotels.com is not a distinctive term and is merely a generic term that describes hotel reservation services. The evidence that Hotels.com provided was not sufficient to show that .com added to the term “hotels” created a distinctive brand that could be protected under the Lanham Act. Similarly, in In Re Reed Elsevier Properties Inc., the Federal Circuit affirmed the decision of the PTO that Lawyers.com was too generic to trademark. Lawyers.com provides a database of information about law, legal news, and legal services. The court utilized a two-part test, first described in H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., to determine whether or not a mark is considered generic under the Lanham Act. The first part focuses on what specific goods or services are at issue, and the second part assesses whether the particular term is understood by the public to refer primarily to those specific goods or services. Applying this test, Lawyers.com could not be trademarked because the term is not a discrete descriptor for the services provided on the website. The Ninth Circuit issued a similar ruling in the case of Advertise.Com, Inc. v. AOL Advertising, Inc., upholding a PTO decision to deny a trademark to Advertising.com for online advertising services. 

Most recently, The Fourth Circuit addressed this issue in the case of U.S. Patent and Trademark Office v. Booking.com B.V. The PTO denied trademark protection to Booking.com, stating that the domain is not distinctive and merely describes online reservation services for hotels, cars, and travel. Booking.com appealed this decision to the U.S. District Court for the Eastern District of Virginia, which reversed the PTO’s decision, stating that the addition of .com converted a generic term into a descriptive term. Additionally, Booking.com provided survey evidence that consumers recognize Booking.com as a brand rather than a category of services. This decision was affirmed by the Fourth Circuit, and certiorari was granted by the U.S. Supreme Court to clarify the circuit split. 

Looking Forward

The U.S. Supreme Court, which recently heard oral arguments in U.S. Patent and Trademark Office v. Booking.com B.V., will resolve this circuit split. Both the government and Booking.com provided arguments that reflected the concerns of different circuit courts with a focus on the balance between protecting brand identification and the fear of monopolization by one company over a particular industry. 

The government argued that the Court’s ruling in Goodyear’s India Rubber Glove v. Goodyear Rubber Co., that combining one generic term with another generic term such as “Company” or “Inc.” does not result in a descriptive term that can be trademarked, should apply in this case. The government also expressed concern about competition and which particular test to apply when evaluating whether or not generic terms should be trademarked. The government cited businesses such as Ebooking.com and Hotelbooking.com that would not be allowed to exist if Booking.com was granted a trademark. Additionally, the government advocated for a consumer-based test to determine whether generic terms should be afforded trademark protection. This test would focus on what a consumer understands a particular term to mean and whether Booking.com’s services could have additional meaning to the consumer. Applying this test allowed the government to assert that there is no additional meaning, and therefore, a trademark should not be granted to Booking.com. 

On the other side, Booking.com argued that the “primary significance test” should apply, providing trademark protection to Booking.com because the term represents a brand. The primary significance test allows a term to be classified as descriptive if the term refers to the producer or source of the product rather than the product itself. America Online, Inc. v. AT&T Corp. (4th Cir. 2001). Even though “booking” is a generic term and “.com” is a generic term, the combination of the two terms has significance as a brand to consumers. Booking.com also addressed the issue of a trademark creating a monopoly and asserted that the government provided no evidence that other businesses would be barred. Additionally, Booking.com discussed the international implications of trademark registration in the United States, noting that this trademark has been registered in approximately 80 other countries. Booking.com argued that registration in the United States would further allow the company to protect themselves against spoofing and cyber scams.     

The U.S. Supreme Court will rule on this issue soon, providing clarity to the approach that the PTO will take in the future when determining whether general terms added to .com can be trademarked. Resolving this circuit split will guide businesses on how to proceed when seeking brand recognition and protecting their products and services. 

Pharmaceutical Fracas: Can Misrepresentation Count as Proximate Cause in a Pharma RICO Claim?

BACKGROUND

Pharmaceutical drugs cause side effects – with that notion, there is no dispute. However, the issue of whether patients, physicians, or payors (underwriting insurance companies) are adequately informed of those side effects is often up for dispute. In 2017, Takeda Pharmaceuticals Company finalized a Master Settlement Agreement (MSA), in which it agreed to pay damages to patients who took Actos, a Type II Diabetes medication, and later developed bladder cancer.

In 2017, several additional patients and multiple insurance companies filed a civil Racketeering Influence and Corrupt Organizations Act (“RICO”) action against Takeda for its misrepresentation of Actos’s side effects to prescribing physicians and patients. In Painters and Allied Trades District Council 82 Healthcare Fund v. Takeda Pharmaceuticals Co. (2019), the plaintiffs alleged that neither the patients nor the payors knew the cancer risks associated with Actos at the time of purchase and that neither would have paid for the drug had they known of the risks. The District Court for the Central District of California dismissed the action for failure to state a claim under FRCP 12(b)(6). Plaintiffs appealed to the Ninth Circuit.

To satisfy the standing requirement of a civil RICO claim under 28 U.S.C. § 1964(c), the Ninth Circuit has held that a “plaintiff must show: (1) that [their] alleged harm qualifies as injury to his business or property; and (2) that [their] harm was ‘by reason of’ the RICO violation.” The latter has been interpreted by the Supreme Court to require both proximate and but-for causation in these matters.

In applying these principles to Painters and Allied Trades, the Ninth Circuit reasoned that the patients and the payors were “the most direct victims . . . who suffered economic injury” and thus had sufficiently alleged proximate cause. The Court remanded to the district court for further proceedings. Contention arises on the issue of the standing of the payor, specifically whether a payor can sufficiently allege proximate cause as a result of misrepresentation to prescribing physicians.

THE ISSUE

Is the proximate cause element of a RICO matter satisfied where a third-party payor alleges they would not have underwritten a prescription for a pharmaceutical drug if the drug manufacturer had not misrepresented safety risks to prescribers?

THE SPLIT

In addition to the Ninth Circuit, the First, Second, Third, and Seventh Circuit Courts of Appeals have weighed in on the proximate cause requirements of a RICO matter. The First and Third Circuits both take a similar approach to the Ninth Circuit in Painters and Allied Trades. The Second and Seventh Circuits have held that such an allegation is not a sufficient showing of proximate cause for a RICO case.

The First Circuit ruled similarly to the Ninth Circuit in In re Neurontin Marketing and Sales Practices Litigation (2013), where a jury awarded Kaiser Foundation Health Plan damages for misrepresentation of a drug’s off-label use. Kaiser made its allegations as an insurance company covering the cost of prescriptions (“third-party-payor”). The drug, Neurontin, was manufactured and sold by Pfizer. The FDA approved Neurontin for the treatment of shingles-related seizures and pain. However, Kaiser alleged that Pfizer had misrepresented and promoted the drug to payors and providers as an effective treatment of bipolar disorder, neuropathic pain, and migraines. A public health and economics expert testified that, nationally, approximately 99.4% of Neurontin prescriptions for bipolar disorder, 70% of Neurontin prescriptions for neuropathic pain, and 27.9% of Neurontin prescriptions for migraines, would not have been written if Pfizer had not engaged in a fraudulent misrepresentation campaign. Kaiser thus alleged that its underwriting was a direct result of the misrepresentations. The First Circuit found this allegation, and the chain of causation, to be adequate for proximate cause under RICO. The Supreme Court denied Pfizer’s petition for writs of certiorari addressing this and two other similar matters.

Likewise, the Third Circuit ruled in favor of a class of payors that sued GlaxoSmithKline under RICO for deceptive marketing of Type II diabetes medications. The plaintiffs in In re Avandia Marketing, Sales Practices & Products Liability Litigation (2016)were union health and welfare funds that underwrote Avandia prescriptions for members instead of less expensive alternatives. This decision to cover was based on GSK’s representations to physicians about Avandia being safer than less expensive alternatives (of which Actos was one). Years of regulations and studies proved that this was patently false. In 2010, the Senate concluded that GSK had failed to warn the FDA and the public of the side effects of Avandia, and that GSK had attempted to downplay and misrepresent the potential heart-related risks. The plaintiffs alleged that there was a sufficient connection between the manufacturer’s years-long misrepresentation of Avandia and its underwriting of prescriptions for the drug. The Third Circuit deemed this reliance to be sufficient for the RICO proximate cause requirement. The Supreme Court denied certiorari.

Unlike the First and Third Circuits, the Second Circuit declined to find underwriting as a result of misrepresentation sufficient to allege proximate cause. In UFCW Local 1776 vs. Eli Lilly & Co. (2010), it summarily rejected doctor reliance national misrepresentation campaigns as a sufficient showing of but-for causation. There, Eli Lilly & Co. had minimized the drug Zyprexa’s risk of diabetes and hyperglycemia to patients and prescribers across the United States, Europe, and Asia. It also made “excessive claims of utility” and overcharged for the drug. The Second Circuit ruled that because doctors do not “generally consider the price of a medication when deciding what to prescribe for an individual patient[,]” the doctors’ reliance on misrepresented utility and potential side effects was not a proximate cause of the price that the third-party payors ultimately paid for the drug. This, the Second Circuit reasoned, was too attenuated to award damages to payors under RICO. In combination with other matters against Eli Lilly & Co., the Supreme Court denied certiorari.

The Seventh Circuit in Sidney Hillman Health Center of Rochester v. Abbott Laboratories (2017) made a conclusion similar to that of the Second Circuit. Plaintiffs in Sidney Hillman were insurers that underwrote member off-label prescriptions for Depakote. The drug, manufactured by Abbott Laboratories, was approved by the FDA for treatment of seizures, migraines, and certain conditions related to bipolar disorder. Abbott marketed the drug to physicians as effective in treating schizophrenia, dementia, and attention deficit hyperactivity disorder (ADHD). In 2012, Abbott pleaded guilty to criminal actions and settled civil actions resulting from this off-label promotion. In an opinion by Judge Easterbrook, the Seventh Circuit panel ruled that payors’ claims were too attenuated since the misrepresentation was directed only at physicians. Payors were “several levels removed in the causal sequence[,]” and thus could not satisfy the RICO proximate cause requirement.

LOOKING FORWARD

In the age of increasing opioid litigation, the debate over payor recovery for drug company misrepresentations to prescribing physicians is a debate ripe for review. The Supreme Court has denied certiorari from parties on both sides of this split. However, given the increased scrutiny of pharmaceutical companies as a result of the national opioid crisis, the Court may soon be forced to consider proximate cause requirements in civil RICO matters of “payor versus pharma.”

Hassling with the Hague Convention: Part II

BACKGROUND

Michelle Monasky, a U.S. citizen, married to Domenico Taglieri, an Italian citizen, faced repeated domestic abuse and assault before and during her pregnancy. After Monasky returned to the United States with her and Taglieri’s two-month-old daughter, Taglieri filed a petition under the Hague Convention seeking the daughter’s return to Italy. The court granted Taglieri’s petition, finding that Italy was the baby’s habitual residence.

Monasky sought a stay of the return order, which was denied first by the Sixth Circuit and then by the Supreme Court. Therefore, the daughter was returned to Italy, where an Italian court in an ex parte proceeding had terminated Monasky’s parental rights and made Taglieri “sole custodian with full parental rights” over the daughter.

After a panel of the Sixth Circuit affirmed the district court’s decision, the Sixth Circuit agreed to a rehearing en banc. Applying a different standard than the district court, the Sixth Circuit majority held in Taglieri v. Monasky (2018) that “the parents’ shared intent” determines whether an infant, who is too young to acclimate to her surroundings, has attained a habitual residence in the country from which she was removed. The majority went on to hold that “shared parental intent” does not require the parents to have a “meeting of the minds’ about their child’s future home.” According to the majority, “[a]n absence of a subjective agreement between the parents does not by itself end the inquiry” because a subjective agreement, while sufficient, is “not a necessary…basis for locating an infant’s habitual residence.”

Even though the Sixth Circuit had not previously adopted a “shared parental intent” standard to determine the habitual residence of infants—and even though a remand is normally “required” when the Sixth Circuit adopts a different legal standard than that applied by the district court—the en banc majority declined to remand the case for the district court to apply its new standard to the facts of this case.

THE ISSUE

When an infant is too young to acclimate to her surroundings, is a subjective agreement between the infant’s parents necessary to establish her habitual residence under the Hague Convention?

THE SPLIT

The Second, Third, Fifth, and Ninth Circuits have addressed the question of how to determine habitual residence for infants too young to acclimate to their surroundings. Each concluded that habitual residence is established only if the parents shared a subjective intent—meaning if they reached a meeting of the minds—to raise the child in that country.

The Second Circuit held in Gitter v. Gitter (2005), that absent evidence that a child had acclimated to her surroundings, “a child’s habitual residence is consistent with the intentions of those entitled to fix the child’s residence at the time those intentions were mutually shared.” Applying that standard, the court concluded that because the parents “only mutually agreed to move to Israel on a conditional basis,” their child could only have attained habitual residence in Israel through acclimatization.

Likewise, the Third Circuit explained in Feder v. Evans-Feder (1995) that “the conduct and the overtly stated intentions and agreement of the parents . . . are bound to be important factors” in assessing a child’s habitual residence. With that standard in mind, the Third Circuit further held in Delvoye v. Lee (2003) that when the mother of an eight-week-old infant agreed to give birth in Belgium but to “live there only temporarily,” the infant “did not become a habitual resident” of Belgium before her mother took her to the United States.

The Fifth Circuit similarly held in Berezowsky v. Ojeda (2014), that, to establish a habitual residence, “[a] shared parental intent requires that the parents actually share or jointly develop the intention.” The court went on to explain that, “[i]n other words the parents must reach some sort of meeting of the minds regarding their child’s habitual residence, so that they are making the decision together.” The court concluded that the petitioner did not meet her burden of establishing that the parents “reach[ed] an agreement or meeting of the minds regarding [their child’s] future” and that the petitioner, therefore, was not entitled to an order returning the child to Mexico.

The Ninth Circuit follows the same approach. In Murphy v. Sloan (2014), the court declined to find a child habitually resident in Ireland because “there was never any discussion, let alone agreement, that the stay abroad would be indefinite.”

With Taglieri (2018), the Sixth Circuit took an entirely different approach to ascertain shared parental intent in this case. According to the en banc majority, a “meeting of the minds” between the parents is “not a necessary . . . basis for locating an infant’s habitual residence.” The court reasoned that this lack of subjective agreement “does not by itself end the inquiry.” Under that approach, the en banc majority upheld the return order—even though the district court made no finding that Monasky and Taglieri had ever agreed to raise their daughter in Italy.

LOOKING FORWARD

If any of the four other circuits to address the issue had decided Taglieri v.  Monasky, the absence of any actual agreement between Monasky and Taglieri—as well as the undisputed fact that the eight week-old had not acclimated to her surroundings in Italy—would have led the court to conclude that the daughter was not habitually resident in Italy and that a return order was not appropriate. The Supreme Court heard oral arguments for this case on December 11, 2019, and we await its decision.

Rules of Interrogation: Title IX and the Opportunity to Cross-Examine Complainants

BACKGROUND

Title IX, passed as part of the Educational Amendments of 1972, states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Three Supreme Court decisions during the 1990s interpreted Title IX to require schools to respond adequately and appropriately to incidents of sexual harassment and violence perpetrated against students.

In 2011, the Department of Education’s Office of Civil Rights (“OCR”) issued what is referred to as a “Dear Colleague” letter, which provided guidance to schools and reminded them of their obligation to address incidents of sexual assault as civil rights matters under Title IX. In this letter, the OCR under the Obama administration made recommendations regarding procedures schools should follow when addressing a Title IX complaint. One procedural recommendation by the OCR was to discourage allowing parties to personally question and cross-examine each other during a hearing on alleged sexual violence. The OCR reasoned that this method may be “traumatic or intimidating” and would potentially foster a hostile environment. Additionally, schools are not required to allow cross-examination of witnesses.

Most recently, the Department of Education under Betsy DeVos and the Trump administration has announced its intention to issue sweeping changes to the rules governing campus sexual assault. One of the major rules proposed through the early 2019 notice-and-comment procedure was a requirement that schools allow cross-examination of those alleging sexual harassment or assault.

THE ISSUE

In sexual misconduct cases, are schools required to provide a respondent with the opportunity for live cross-examination of the complainant and his or her representatives?

THE SPLIT

In 2018, the Sixth Circuit heard the case Doe v. Baum (2018). John Doe, the plaintiff and initial respondent in a sexual misconduct investigation at the University of Michigan, filed suit after the case made its way through the university’s appeals process. When the investigation was resolved in the complainant’s favor, Mr. Doe voluntarily withdrew from the university but later claimed that the university’s disciplinary procedures were in violation of both the Due Process Clause and Title IX. His argument was that, because the university’s decision turned on a finding of credibility, the school should have been required to provide him with the opportunity to cross-examine the complainant and witnesses. The Sixth Circuit reversed the district court’s decision and held that the University of Michigan did violate the student’s right to due process by failing to afford him the right to cross-examine the complainant and witnesses.

Relying on the decision in Baum, a respondent in a sexual assault investigation at the University of Massachusetts-Amherst filed suit after the university held a hearing and eventually expelled him. The respondent, Mr. Haidak, argued that his rights under Title IX and the Due Process Clause were violated because the university did not provide him with the opportunity to interrogate the complainant. In a split from the ruling in the Sixth Circuit, the First Circuit held in Haidak v. University of Massachusetts-Amherst (2018) that it is not a categorical requirement that schools must provide respondents with the opportunity to cross-examine the complainant, either directly or through a representative. The court explained that a school’s decision to examine the witnesses and parties by using a neutral factfinder would not be so fundamentally flawed in its procedure as to deprive the respondent of their right to due process. The Court reasoned that requiring the right to the kind of cross-examination demanded by Mr. Haidak would cause the disciplinary proceedings to essentially mirror a common law trial, which the First Circuit deemed unnecessary.

LOOKING FORWARD

Title IX administrators anticipate publication of the finalized regulations any day now. The proposed regulations relied heavily on the Baum decision and procedural requirements as outlined by the Sixth Circuit, conflicting with the First Circuit in Haidak. It remains to be seen what procedures will be required by the final Title IX regulations, but it is unlikely we will see any shift away from the rationale and procedures as outlined in Baum.

Educational institutions in the First Circuit will be forced to take into account both the Haidak decision and the new regulations when updating their Title IX policies. Additionally, many universities utilize the method of fact-finding supported by Haidak, which allows for a neutral party to interview the complainant and respondent. The split between the First and Sixth Circuits coupled with the introduction of the new Title IX regulations by the Department of Education will force different institutions to follow different sets of rules depending on the jurisdiction in which they are located. Various Title IX cases are awaiting trial or adjudication across the country, and experts are eager to find out which of the procedural frameworks appear to be the standard. With these rulings, it is becoming increasingly more likely that the Supreme Court will be forced to consider the Title IX procedures.

For further reading, see: First Circuit Splits from Sixth Circuit and Education Department on Title IX (2019), OCR Is About to Rock Our Worlds (2020) by Brett A. Sokolow, and 5 College Title IX Lawsuits to Watch (2019) by Jeremy Bauer-Wolf.

Accuracy v. Finality: The Implications of Habeas Rights Based on AEDPA Interpretations

BACKGROUND

With the release of the film Just Mercy, the debate over balancing the prevention of wrongful convictions against the assurance of finality in serious criminal matters has once again come into the spotlight. This dispute is not only receiving national attention in pop culture, but is also making headlines in the judicial field with the emergence of a new circuit split.

A habeas petition is a method invoked by prisoners seeking an early release by challenging the legitimacy of their detention. In 1996, the ability to file habeas petitions was limited with the passage of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a prisoner has just one opportunity to file a motion to vacate the earlier sentence. A second opportunity is permitted only when the Supreme Court adopts a new and favorable rule of constitutional law. Prisoners are also restricted to just one habeas petition, unless they can demonstrate that AEDPA’s remedy is “inadequate or ineffective.”

THE ISSUE

Can the AEDPA remedy be considered inadequate or ineffective, thereby circumventing the single habeas restriction, when a new rule of statutory construction is adopted by a circuit court?

THE SPLIT

In Hueso v. Barnhart (2020), the Sixth Circuit split from the Fourth Circuit, interpreting AEDPA to increase restrictions on habeas rights. Hueso was convicted of drug trafficking in Alaska. He was initially sentenced to 10 years in prison; however, the term was doubled under a federal sentencing law. The year after his conviction, the Supreme Court rejected the interpretation permitting doubling. At the time, Hueso’s counsel had already filed a Motion to Vacate challenging evidence, which was rejected. Counsel then filed a habeas petition based on the Supreme Court ruling. The court denied the petition based on Sixth Circuit precedent that barred habeas cases from entertaining challenges based on sentencing. However, in 2016, the Sixth Circuit overturned its previous holding, thereby permitting sentencing-based habeas petitions.

As a result, Hueso’s counsel filed another habeas petition, but this time it was rejected under AEDPA. Hueso appealed to the Sixth Circuit, arguing that he should be permitted to file a second habeas under AEDPA because the AEDPA remedy was inadequate and ineffective. The Sixth Circuit denied the appeal on two bases. First, the Sixth Circuit reasoned that the Supreme Court ruling rejecting double sentencing could not be introduced in a subsequent challenge as the decision was made while Hueso’s first Motion to Vacate was pending. The court reasoned that the decision was available at the time of the challenge and, therefore, the failure to mention it barred a second attempt. Second, the Sixth Circuit held that the second habeas petition was correctly denied because the basis of the petition centered on a circuit court decision to permit sentencing-based habeas petitions. The Sixth Circuit rationalized that this decision was not constitutional law, as required under AEDPA, and thus could not be a basis for seeking to file subsequent petitions.

The Sixth Circuit’s reasoning diverged from the Fourth Circuit’s prior interpretation in United States v. Wheeler (2018). Wheeler was charged with conspiracy to possess with intent to distribute cocaine and possession of a firearm. Wheeler entered into a plea deal, agreeing to an enhanced sentence with a mandatory minimum of 120 months. The next year, Wheeler’s counsel filed a Motion to Vacate, citing both inefficient counsel and the fact that the conviction did not qualify for an enhanced sentence. The Motion was denied based on Fourth Circuit precedent allowing a maximum aggravated sentence to be imposed. Wheeler’s counsel sought to appeal by filing a certificate of appealability. While the appeal was pending, the previous precedent relied upon was overturned by the Fourth Circuit with a finding that a district court could only consider the maximum sentence that the particular defendant could receive in enhanced sentence matters. However, Wheeler’s appeal was still denied based on the reasoning that the new decision could not be applied retroactively.

Wheeler’s counsel subsequently filed a habeas petition, arguing that the AEDPA remedy was inadequate and ineffective. In this case, the Fourth Circuit upheld the inadequacy on appeal. The court reasoned:

“[W]e conclude that [AEDPA] is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; subsequent to the prisoner’s direct appeal and first … motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping requirements … for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.”

LOOKING FORWARD

Following the Wheeler decision, the Solicitor General, on behalf of the United States, filed a writ of certiorari with the United States Supreme Court. The petition was denied in March 2019, before the split emerged. The developing split has the potential for unfortunate consequences for prisoners based solely on the region they are imprisoned in. The split will inevitably result in disparate results concerning a prisoner’s rights to seek relief and retrial in the case of wrongful convictions. In the Sixth Circuit, Judge Karen Nelson Moore acknowledged the disparity in her dissent, pointing out that Hueso would “almost certainly prevail” had he attacked his sentence the first time, and noting that, as a result of the majority interpretation, Hueso would be spending another decade incarcerated.