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September 2004
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November 2004

J. Tony Serra

[Ed's note: I get several daily hits from Googlers looking for information on Tony Serra. Okay, here goes...]

I've met him and many of the lawyers at his law firm. He is brilliant, creative, and studied in local court practice and procedure. If I needed legal representation, I'd hire him. I would take out a credit card if that's what it took. He is that good.

If I lived in San Francisco, I would want to work for him. In fact, he's probably the only lawyer I am really interested in studying under.

Not too many people know about him because he's low key. He ditched an awards ceremony put on by "public interest lawyers" because he thought they were too establishment. He drives a crappy car and smokes medical marijuana every day. He'll tell you everything I'm telling you. (Indeed, I learned about the medicial marijuana from an article available here).

I'd put money up that he is about 20 IQ points above any of his critics.

The lawyers he works with at his law firm are similarly intelligent, creative, and tough.

If you ever get a chance, you should check out his law offices. It's located in the quasi-red light district in San Francisco. There are several cool paintings in the office. And the office has a cool vibe. Every once in a while they'll host artists or a concert.

But don't look for marble floors, mahogany walls, or white-shoed lawyers. You'll find none. But you will find, as the sign at the law office's entrance proclaims, "Honest Lawyers Upstairs."

"Pending" under AEDPA

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1), a prisoner has only one year after entry of a final judgment in his case to file a petition for a writ of habeas corpus.  However, the one-year limitation is tolled when the prisoner has a state habeas petition pending.  What does "pending" mean?

Judge Fletcher, writing for a 2-1 panel, held:

“Pending,” in this context, includes the intervals between the dismissal of one state application and the filing of the next one. Because Gaston is allowed tolling for the time his state court applications were pending, his federal habeas petition is timely.

Gatson v. Palmer, No. 01-56367, (9th Cir., Oct. 28, 2004).

Interesting consumer product case

Mirama Enterprises, d/b/a Aroma Housewares Co. sold 30,000 to 40,000 juicers. They received 23 complaints informing them that the product was hazardous. Aroma violated federal law by not telling the Consumer Products Safety Commission about the complaints. However, some consumers told the CPSC, and the juicer was voluntarily recalled from the market.

Is Aroma responsible for 23 or 30,000 to 40,000 violations of the federal reporting requirement? Per Judge Alex Kozinski, a unanimous three-judge panel said, "You're paying the big bucks."

[Federal regulations] require[] a manufacturer, distributor or retailer of a product to notify the Commission if it obtains information that reasonably suggests the product creates serious risks of injury. Under [them], failure to report is a separate offense with respect to each individual unit on the market or in the hands of consumers. Accordingly, the district court properly held that Aroma’s failures to report constituted 30,000 to 40,000 separate offenses, and the court did not abuse its discretion in imposing a $300,000 penalty, regardless of whether Aroma’s juicers were actually defective.

United States v. Mirama Enterprises, No. 02-56466 (9th Cir., Oct. 28, 2004) (Kozinski for O'Scannlain and Silverman).

Another reason to proofread

Imagine you write an article for a CLE seminar. It's a good article. So good that Judge Alex Kozinski finds it helpful and decides to cite it in a published opinion. Unfortunately for you, he finds a typo. And he lets us know about it. (On page 4).

Peter L. Winik, Consumer Product Safety Commission: Current Developments in Law and Practice A-4 (ABA Ctr. for Cont’g Legal Educ. Nat’l Inst. 1997) (“The CPSC takes the position that language [sic] ‘each product involved’ means each individual unit of product sold to consumers. Thus, in most cases of non-reporting, it is possible for the CPSC to argue that it can aggregate penalties up to the statutory maximum.”).

Of course, it's still very cool to get cited in a published opinion, so I imagine Mr. Winik is willing to take the bad with the very good.

A judge who knows can say, "No"

In United States v. Dowell, No. 03-2747 (7th Cir., Oct. 27, 2004), a unanimous three-judge panel held that a district court's informed refusal to depart downward is non-reviewable.

This court determined in United States v. Franz that a district court’s refusal to depart downward may only be reviewed if the sentence was imposed in violation of the law. Thus, we review the sentence only if there is a legal error involved. There is no legal error, and therefore no jurisdiction for appellate review of a district court’s refusal to depart downward, when the district court understood that it had the legal authority to depart but, in its discretion, chose not to do so.

The court appreciated the prosecutor's building a record of informed discretion:

[T]he Assistant U.S. Attorney wisely made sure that this understanding was included in the record. This is a procedure we encourage. The sentencing transcript shows the following:

ASSISTANT U.S. ATTORNEY: Judge, just to be sure that the record is clear, the Court recognizes it has the authority to depart downward but has refused to as a matter of its discretion?

THE COURT: Yes. Yes, I think—that is my decision. Obviously, I gave a lot of thought to it beforehand. And the judgment isn’t signed yet, but I think that that is probably, frankly, the best thing for, not only society and the law, but for Mr. Dowell, given the options that exist right now.

Abuse of trust enhancement under §3B1.3.

Under U.S.S.G. § 3B1.3 the defendant faces a two-level enhancement “[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense.” The Eleventh Circuit has read a third element into this: “For the enhancement to apply, [the] defendant must have been in a position of trust with respect to the victim of the crime.” United States v. Garrison, 133 F.3d 831, 837 (11th Cir. 1998).

Today, in United States v. Britt, The Eleventh Circuit Court of Appeals provided us further guidance. In United States v. Britt , No. 04-10151, the Eleventh Circuit took this one step further, holding that the United States can be a victim of the defendant’s offense. Id. at *7 (“[T]he United States government, or more specifically [a federal agency can be the] victim of Britt’s offense.”) Moreover, facts that the court will rely upon in determining whether a person held a position of trust the amount of discretion in performing one’s official duties, and the power “to accept, reject, or report for further investigation the” suspicious activity relating to her duties. Id. at *6-7. The appellate wonks can take note of the standard of review.

In assessing a district court's application of the abuse-of-trust enhancement under U.S.S.G. § 3B1.3, we review the district court's findings of fact for clear error, but review de novo the district court's determination that the facts justify an abuse-of-trust enhancement.

Id. at *4 (citation omitted).

Citational Footnotes?

[Ed's note: Yikes!  Today I am in the unfortunate position of disagreeing with Bryan A. Garner and Raymand P. Ward.]

It’s rare that I vocalize my disagreement with Bryan A. Garner.  But when it comes to placing citations in the footnotes, I respectfully dissent.  I have three reasons.

1. Citations are part of the legal language, and thus, the argument.
2. A little citation tells me a lot.
3. Writing that needs citational footnotes needs much more.

1. Citations are part of the legal language.
On the cases I specialize in, certain precedents are part of the language: Citing a case is saying something.  Consequently, when I am citing language from one of these cases, I want to reader to immediately know this.  Thus, I might begin an automobile suppression motion with:

Generally, the police may stop an automobile only “where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1995).

To people in the field, my citing Whren tells them the context of the stop.  The sophisticated reader knows that I am going to discuss “good faith” and “objective reasonableness.”  The newbie to criminal law will at least know - immediately - that I am citing a fairly recent Supreme Court decision.  Which brings us to Point 2.

2. Citations tell me a lot.
When I read a quotation, I want to know how old the decision is, and which court it came from.  I don’t want to glance down at the bottom of the page.  I'm no loner in wanting to know what said what and when. 

A Ninth Circuit decision will not be very persuasive to the Fourth Circuit, and vice versa.  Thus, the reader should immediately know whether the decision is precedential, and if not, how persuasive it should be.  Indeed, I think our citations can sometimes be a bit longer.  Thus:

A criminal defendant may bring an as-applied challenge to a federal law enacted pursuant to Congress’ commerce power.  United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003)(Kozinski, J.).

3. Writing that needs citational footnotes needs much more.
Raymond Ward cites this creature as a candidate for a citational footnote makeover: 

Over the years, the Supreme Court has outlined three possible exceptions to the general rule that monetary remedies are legal claims: (1) restitutionary awards, see, e.g., Terry, 494 U.S. at 570, 110 S.Ct. at 1348; Tull v. United States, 481 U.S. 412, 424, 107 S.Ct. 1831, 1839, 95 L.Ed.2d 365 (1987); Curtis, 415 U.S. at 196 n. 11, 94 S.Ct. at 1009 n. 11; (2) money awards incidental to equitable relief, see, e.g., Tull 481 U.S. at 424, 107 S.Ct. at 1839; Curtis, 415 U.S. at 197, 94 S.Ct. at 1010; and (3) discretionary money awards. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 442-43, 95 S.Ct. 2362, 2384, 45 L.Ed.2d 280 (1975) (Rehnquist, J., concurring); Curtis, 415 U.S. at 197, 94 S.Ct. at 1010. See also Robert L. Strayer, II, Project, Asserting the Seventh Amendment: An Argument for the Right to a Jury when Only Back Pay Is Sought under the Americans with Disabilities Act, 52 Vand.L.Rev. 795 (1999).

That “sentence” sucks.  And its author needs to return to first principles before we can say he or she needs to use citational footnotes.  Applying these first principles will give the author the fix she needs.

First, more than two items in a series deserve a list.  Thus, I would write:

Generally, monetary remedies are legal claims.  However, the United States Supreme Court has recognized three important exceptions:
(1) restitutionary awards (Tull v. United States, 481 U.S. 412 (1987);
(2) monetary awards incidental to equitable relief (Id. at 196 n. 11);
(3) discretionary money awards (Albemarle Paper Co. v. Moody, 422 U.S. 405, 422-43 (1975)(Rehnquist, J., concurring).

Do the citations look so awful now?

Second, the author does not provide a parenthetical for one of his sources.  Thus, I would write:

The reader may also consult Robert L. Strayer, II, Project, Asserting the Seventh Amendment: An Argument for the Right to a Jury when Only Back Pay Is Sought under the Americans with Disabilities Act, 52 Vand.L.Rev. 795 (1999) (saying, doing, collecting, or standing for whatever).

I admit that my way for doing things takes up a lot of space, but that comports with my third rule: White space is nice.  I feel much less intimidated - which matters to this writer more since I began wearing glasses - by written work that provides my eyes a lot of time to pause.

I also imagine that writing that uses string citations requires citational footnotes.  But that makes me wonder: Why are you using those strings?

A compromise?
Unfortunately, many courts require parallel citations to sources.  In those jurisdictions, a hybrid citation would improve things.  Thus:

Tull v. United States, 481 U.S. 412, 424 (1987)[fn1]

[1]107 S.Ct. 1831, 1839, 95 L.Ed.2d 365 (1987).

Stop the presses!

Before reading this article I never knew that police officers speed, creatively fill out time sheets, and run personal errands on official time.

This eye-opening article, which ranks with The Jungle in exposing practices about which we were unaware, ledes:

It's 2:58 on a gorgeous fall afternoon, and US Marshal Anthony Dichio is 35 miles from the federal courthouse in Boston where he works. As he steers his government-issued sport utility vehicle along the leafy roadways of Westford, Dichio lazily hangs his left arm out the window.

He'll be home in three minutes, having put in a total of three hours and one minute in the office.

For Dichio, it was a short, but not the shortest day he worked during 10 recent days on which the Globe observed him. On two of the days, he didn't go into the office at all.