Crime & Federalism

If someone is arrested and sent to jail, the person can be released from jail if the judge allows him to post bail.  The person can post bail by either putting down property as collateral, paying money to the court, or using a bail bondsman.   If the person is wealthy, he can post bail directly.  If not, then he must ask a family member or friend for help.

A typical agreement with a bail bondsman goes like this: "Pay us 10% of the total bail, we'll guarantee the rest to the court.  But if the guy you're posting bail for doesn't show for court, you'll have to pay us the full bail amount."  Think of the agreement as "co-signing a loan" for the defendant.  If she pays off the loan (by showing up for court), you won't be liable for any money.  If she defaults on the loan (by jumping bail), then you owe bail bondsmen (they put the shade in shady) a lot of money.

What happens if the defendant skips bail, the bail bondsman comes after you, you pay the bail bondsman money, but later you help the bail bondsmen nab the defendant.  Can you get your money back?  Answer: Not if you sue in federal court. U.S. v. Rojas (here).

[A]bsent diversity of jurisdiction and the requisite amount in controversy, a district court does not have subject matter jurisdiction to decide an indemnification payment dispute between the surety on a bond posted in federal court and that surety’s indemnitor. Resolving the dispute is not necessary to determining the surety’s obligation to the court or to deciding any action the court is authorized to take. The dispute is a matter governed by contract, not by Rule 46 [of the Federal Rules of Criminal Procedure]. The court lacks the jurisdiction to be concerned with it.

I don't know whether Ms. Rojas had a lawyer help her sue in federal court.  If she did, then that lawyer can expect a malpractice lawsuit, as the statute of limitations for any state court claim has likely expired

You're probably not cynical enough.  Reading Filibuster Flip-Flop, which proves that Republicans, Democrats, and the New York Times and Washington Post have all flip-flopped on filibusters, should bring you up (or down) to my level of cynicism about politics and "journalism."

(Story via the Cato Daily Dispatch; you can get your free subscription here.)

Today the Ninth Circuit handed down the most cryptic decision I've ever read.  It's not confusing, since I am fluent in Eleventh Amendment-speak.  Rather, it's cryptic.  I'm not quite sure what the court held (beyond ruling that the suit may go forward), or what it's rationale was.  Check out Taylor v. Westly, No. 02-16511 (9th Cir. Mar. 29, 2005).

Under California law, the state has the right to steal a shareholders’s stock if the shareholder does not cash dividend checks or respond to proxy notices for three years.  The corporation then cancels the shareholder’s certificates and issues duplicate certificates to the state.  The Controller then redeems the stock and deposits the money into state's general account.
   
Indeed, the two plaintiffs in Taylor sued after California used its confiscatory procedure to deprive them of a lot of money - 52,224 shares of Intel stock from one plaintiff; and 7,000 shares of TWA stock from another.

The plaintiffs sued for declaratory and injunctive relief, and money damages.  The district court dismissed the suit, recognizing that however unfair or disgusting California’s procedure may be, the only legal issue is whether the former stockholders may sue the state for the sale of the stock proceeds.  That is, can a plaintiff sue a state for money damages?  A unanimous three-judge panel reversed.

The State of California’s sovereign immunity applies to the state’s money. Money that the state holds in custody for the benefit of private individuals is not the state’s money, any more than towed cars are the state’s cars. Thus, where a permanent escheat determination has not yet been made, the state’s Eleventh Amendment immunity from suit against it for damages payable from its treasury has no application to escheated property and sales proceeds from escheated property, whether held by the Controller or the Treasurer. 

Id. at *14.  Is the panel suggesting that California does not possess the res since it’s held in trust?  Thus, Deep Sea Research (holding that the Eleventh Amendment does not bar in rem proceedings where a state is seeking title to property) would apply?  Perhaps there is a good argument for this position.  It would have been nice if the panel had developed it.

Surprisingly (or not), the panel does not cite the Court’s very recent, and very applicable decision in Tenn. Student Assistance Corp. v. Hood.  In Hood the Court held that requiring a state to answer a debtor's complaint in bankruptcy court did was not barred by the Eleventh Amendment because "the bankruptcy court’s jurisdiction is premised on the res, not on the persona," i.e, the jurisdiction is over the debt and not the State.  Perhaps the argument is that since the stock is held in a trust account, that the state does not have title to the money in the trust?  Again, there is a good argument for that.  But the panel does not raise it.

However, the Court in Hood noted that had Tennessee had title to the property, then the suit would be barred.  Here, Taylor involves a straight-forward application of Deep Sea Research.  California holds the res.

Moreover, on page *17, the panel suggested that this is really a mere Ex parte Young action, since the plaintiffs were suing the Controller for injunctive and declaratory relief -- Give us our money! But the remedial tail wags the Eleventh Amendment dog – If they are demanding that the Controller pay retrospective relief, then it’s a suit for money damages.  The panel tried getting around this point, writing: "The plaintiffs seek return of their own property, rather than to gain ownership of government property."  Id. at *19.

But that's not correct.  If I sell your stock certificates, I no longer possess your stock.  Rather, I possess money.  If you sued me, you would be able to trace the sale of that stock and attach my property and obtain money from me.  But I don't enjoy immunity from suit.  States do.

I’m not sure whether this decision is so wrong that the Court will grant cert.   Then again, the holding and rationale are so convoluted that the advocates might not be able to properly frame the issues.

Anyhow, I'll update this post once (if) I figure this case out.

I'm going to post a sketch of my question first, and then provide some context. 

Question -- A is convicted under a federal law, X-law, and has a pending appeal.  Later, hearing B's case, an appellate court strikes down X-law as violative of the Commerce Clause.  Shouldn't A's conviction be reversed, regardless of whether he raised a Commerce-Clause-based challenge to his prosecution, on the grounds that where Congress lacks the power to enact a law, so too the District Court lacked jurisdiction to hear the case?  More broadly, can a litigant ever "waive" an enumerated powers argument since the federal courts only have jurisdiction over "cases and controversies"?

Context and clarification -- United States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) involved an as-applied challenge to 18 U.S.C. 2252A(a)(5)(B), which makes it a crime to, "knowingly possesses any ... computer disk ...  that contains an image of child pornography that was produced using materials that have been ... transported in interstate or foreign commerce []." 

In Maxwell, the defendant possessed 15 images of child pornography.  The images were contained on a diskette that had been transported in interstate commerce, but the government could not prove that the images were produced or possessed interstate.  Since the plain language of 2252A covered his conduct, Maxwell argued that the law was unconstitutional under the Commerce Clause.  A unanimous three-judge panel agreed.  Id. at 1068 (holding that intrastate possession of child pornography was not "an activity subject to Commerce Clause regulation" where "the disks on which the pornography was ultimately copied traveled, when blank, to Florida from someplace outside of Florida.")

A few months later, the Eleventh Circuit heard United States v. Smith, No. 03-13639 (11th Cir. Mar. 18, 2005).  Smith involved the same conduct - and a conviction under the same statute - at issue in Maxwell.  The court wrote that under precedent, "Maxwell does not apply unless Smith advanced a Maxwell-type claim in his opening brief."  Id. at *3.  The Smith court nonetheless reversed Smith's conviction after generously reading Smith's briefs, and reviewing for plain error.  I think the holding was correct, but that the rationale was not.

Article III limits federal court's jurisdiction to "cases and controversies."  Since the case or controversy requirement is a constitutional one, it can not be waived by the parties.  Charles Alan Wright noted: "The parties cannot waive lack of jurisdiction, whether by express consent, or by conduct, or even by estoppel.  The court, whether trial or appellate, is obliged to notice want of jurisdiction on its own motion [ ]."  Wright & Kane, Federal Courts at 28 (6th ed.).  If jurisdiction is lacking, even if raised for the first time on appeal, then the case must be dismissed.

The only reason the federal court had jurisdiction over Smith's conduct was by the act of Congress.  It's tautological to say that had there not been a 2252A, then there would not have been a case or controversy.  Thus, if the relevant federal circuit court of appeals finds that the law is invalid under the Commerce Clause, then doesn't it also follow that the jurisdiction over Smith's case was invalid?

In other words, one can not waive an argument as to Congress' power to enact a federal law, since Congress' power goes to the heart of federal court's jurisdiction.

Last year, in United States v. Maxwell (CA11) a unanimous three-judge panel held that Congress lacked power, under the Commerce Clause, to criminalized the instrastate possession of child pornography.  In Maxwell, the government argued that because the disk that contained the image travelled interstate, that Congress could criminalize what was possessed on the disk.  The panel disagreed, for reasons I explained here.

Plain error review will govern Commerce Clause-based challenges to 2252A convictions.
Yesterday, in United States v. Smith, No. 03-13639 (11th Cir. Mar. 18, 2005), a unanimous three-judge panel, relying on Maxwell, reversed the defendant's conviction.  Smith summarized the enumerated powers issue, but also held that Maxwell-like appeals will be reviewed for plain error, and that prosecuting the defendant was plain error.   Thus, if anyone has pending 2252A appeals in the Eleventh Circuit, raise Maxwell.

Forget plain error -- There wasn't any jurisdiction.
The better ruling would have been for the panel to hold that where Congress lacks the power to enact a criminal law, the court never had jurisdiction to hear the case (excpet, of course, to pass on constitutionality and thus jurisdiction).  Lack of subject matter jurisdiction can be raised at any time, and cannot be waived.  "The parties cannot waive lack of jurisdiction, whether by express consent, or by conduct, or even by estoppel.  The court, whether trial or appellate, is obliged to notice want of jurisdiction on its own motion [ ]."  Wright & Kane, Federal Courts at 28 (6th ed.).  Thus, where Congress lacks the power to enact some law, it's obvious then that the courts lacked subject matter jurisdiction to supervise a prosecution under the invalid law.

There's a circuit split on Congress' power to criminalize child pornography under the Commerce Clause.
Also of note is the major circuit split.  The First Circuit has held that storing child pornography on items that have moved in interstate commerce is a sufficient nexus to interstate commerce.  United States v. Morales De-Jesus. Thus, Congress may criminalize the intrastate possession of child pornography contained on such devices.   A district court, relying on De-Jesus, rejected a commerce-based challenge.  United States v. Grimmett (D.Kan.).  So the issue should soon hit the Eighth Circuit.

The Eleventh Circuit disagreed.  United States v. Maxwell.  The Ninth Circuit has also held that instrate possession of child pornography can not be criminalized under the Commerce Clause.  United States v. McCoy.  So did the Sixth Circuit, though it's rationale was slightly different.  United States v. Corp.

There's no question that the Court will grant cert to address this circuit split.  The only question is what effect, if any, Ashcroft v. Raich will have on this line of cases.  If the Court uses the rationale in  Raich that I think it will, then Maxwell and Stewart will be no more.  In Raich, I predict the Court will hold that there is a federal interest in keeping marijuana prices high (to reduce demand and thus usage).  States that legalize marijuana, even if only for medicinal purposes, decrease demand for marijuana and thus the price decreases.  Cheper marijuana means more users.  I discussed this argument here.

A similar rationale will govern the child porn line of cases.  Namely, Congress has an interest in keeping the cost of child pornography high to reduce demand.  Thus, someone who obtains his child porn intrastate does not need to avail himself to the national market, and thus, the price of child pornography decreases.  Hence, to keep costs up (and thus reduce demand) Congress could rationally determine that it is necessary and proper to criminalize the intrastate production and possession of child porn.

Yeah, that rationale is basically crap, but I'm only saying what the law is, or will be, not what it should be.

UPDATE:  Judge McConnell provides us a comprehensive survey of the circuit split.

Many of our sister circuits have considered the constitutionality under the Commerce Clause of § 2252(a)(4)(B), as well as the analogous jurisdictional provision found in 18 U.S.C. § 2251(a), which criminalizes child pornography production. Of the nine circuits to address the issue, six have found such jurisdiction a valid exercise of Congress’ Commerce Power. See United States v. Morales-De Jesus, 372 F.3d 6, 10, 17-18 (1st Cir. 2004) (upholding a conviction under § 2251 finding that aggregated local intrastate production has a “substantial effect” on interstate commerce); United States v. Holston, 343 F.3d 83, 88-91 (2d Cir. 2003) (concluding that the activity proscribed by § 2251 is economic in nature and can be regulated at the intrastate level by Congress); United States v. Buculei, 262 F.3d 322, 329 (4th Cir. 2001) (“There can be no doubt that the production of visual depictions of minors engaging in sexually explicit conduct, i.e., child pornography, is economic in nature.”); United States v. Hoggard, 254 F.3d 774, 746 (8th Cir. 2001) (affirming conviction under § 2251); United States v Kallestad, 236 F.3d 225, 228-31 (5th Cir. 2000) (affirming a conviction under § 2252(a)(4)(B) on the ground that the statute regulates an activity that has a “substantial effect” on interstate commerce in light of the Morrison factors); United States v. Angle, 234 F.3d 326, 338 (7th Cir. 2000) (affirming a § 2252(a)(4)(B) conviction under a market theory; the statute “prohibits intrastate activity that is substantially related to the closely regulated interstate market of child pornography”); United States v. Rodia, 194 F.3d 465, 476 (3d Cir. 1999) (affirming conviction under § 2252(a)(4)(B) under market theory); United States v. Robinson, 137 F.3d 652, 656 (1st Cir. 1998) (affirming a conviction under § 2252(a)(4)(B) because the local possession of child pornography “‘through repetition elsewhere,’ . . . helps to create and sustain a market for sexually explicit materials depicting minors” and thus substantially affects the instrumentalities of interstate commerce).

Four decisions from three circuits have held prosecutions for possession of home-made child pornography unconstitutional as exceeding congressional power under the Commerce Clause. See United States v. Smith, 2005 WL 628686 (11th Cir., Mar. 18, 2005); United States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004); United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003); United States v. Corp, 236 F.3d 325 (6th Cir. 2001). Three of these decisions involved factual circumstances with much more tenuous connections to interstate commerce than the facts present here. Maxwell concluded that the application of § 2252(a)(4)(B) was unconstitutional where the interstate transfer of blank computer disks was the sole connection to interstate commerce introduced at trial. 386 F.3d at 1049. McCoy involved a single family photograph of a child taken by a parent with, according to the Ninth Circuit, no commercial or interstate component. 323 F.3d at 1115. Corp involved several photographs taken by a 23-year-old man of a 17- year-old girl who was within months of majority status, 236 F.3d at 326.

United States v. Riccardi, No. 03-3132, slip op. at 26-30 (10th Cir. Apr. 19, 2005) (footnotes omitted).

Over the past couple of years, I've tried to read every criminal law and section 1983 case from the federal circuits.  I don't usually make it, but I'd say I hit 65 - 75% of them, and I'm getting a nice vibe for what circuits tend to do. 

Though I usually prefer the outcomes from the Ninth, I think that the Eight Circuit Court of Appeals is the best federal circuit in the country, and Judge Morris Shepherd Arnold is probably the best judge in the country.  His decisions are always well-reasoned, he's not as wilfull as most judges, and he's no show off.

Granted, his decisions might not have the pizzazz of Kozinki's, Easterbrook's, or Posner's.  But there is a geniue humility to his decision.  His most recent decision showcases everything right about the Eighth Circuit, and about Judge Arnold.

In United States v. Bordeaux, No. 04-1369 (8th Cir., Mar. 7, 2005) Judge Arnold wrote for a unanimous three-judge panel that allowing a witness in a child molestation case to testify through a two-way circuit television violated the Confrontation Clause.  This was so even though the child witness said she would not have the stamina to testify in open court.

More later...

Ex Post (a blog of anonymous law students) tipped me off to a Court decision I had not read, Kowalski v. Tesmer.  Publius writes:

What I'm trying to figure out in Kowalski is the relevance of the Younger v. Harris decision to the court's finding that the attorneys didn't have standing. Justice Ginsburg points out rightly in her dissent that "[w]hether a federal court should abstain under Younger is . . . distinct from whether a party has standing to sue." In the absence of a pending state action involving the attorneys, Younger should clearly be a separate analysis.

Publius is right, according to Wright.  Under the abstention doctrines "a federal court may decline to proceed though it has jurisdiction under the Constitution and the statutes."  Wright & Kane, Federal Courts at 325 (6th ed.).  Younger v. Harris, 401 U.S. 37 (1975) holds that a federal court must not interfere with pending state court proceedings.  In Younger the Court refused to enjoin a pending state court prosecution even though Harris meet all of the justiciability requirements.  The Court wrote that "Our Federalism" requires federal courts to recognize that state courts will vindicate federal constitutional rights as  as federal courts.  Id. at 750.  Thus, for Younger to apply, the Court must have jurisdiction over the case, and there must be pending state court proceedings.

In Kowalski the Court held "that the attorneys do not have third-party standing to assert the rights of Michigan indigent defendants denied appellate counsel."  Kowalski at *8.  Since the Court did not have jurisdiction over the case, it follows that Younger absention would not apply. 

Why then did the Court reach the Younger issue?

UPDATE:  I think I figured it out.  The Court wrote that "[a]n unwillingness to allow the Younger principle to be thus circumvented is an additional reason to deny the attorneys third-party standing."  Id.  Thus, the Court was not abstaning from hearing the case.  Rather, Younger was a reason to deny third-party standing.  But the Court's language could have implications for civil rights litigants.

Since the indigent defendants could have raised their claim in criminal court, but did not, then they can not later file a Section 1983 action in federal court.  This seems to impose a new exhausation rule in section 1983 actions.  That is, if a criminal defendant is denied his constitutional rights in a state criminal proceeding, he may not file a Section 1983 action unless he litigated the denial of that right during the state case.  (We have to assume that the Heck v. Humphrey bar does not apply).

Thoughts?

"Redefining a 'Crime' as a Sentencing Factor to Circumvent the Right to Jury" is the title of a CATO Institute paper.  This paper was pie in the sky stuff until Blakely.  Here is the paper's introduction:

The right to trial by jury is under grave threat today. From time immemorial, whether a person is guilty of a crime has been decided by one’s peers in the community. Under the United States Constitution, an accused person must be indicted by a grand jury and convicted by a petit jury of the charges beyond a reasonable doubt. However, forces are at work attempting to transfer these jury powers to the courts. By the linguistic artifice of redefining the term ‘‘crime’’ as a ‘‘sentencing factor,’’ courts are usurping the jury’s traditional fact-finding role and are dispensing with the standard of proof beyond a reasonable doubt. The following essay tells the story of how this menace to traditional American liberties is being carried out.

Tony Mauro has an article at law.com on the effect of Reagan's appointments to the federal bench.