pageok
pageok
pageok
Judge Kozinski and Goldyn v. Hayes:
In a fascinating essay in Legal Affairs published last year, Judge Alex Kozinski posed the following hypothetical about judicial temptation to bend the rules:
  You are reviewing a criminal appeal where a young man has been convicted of murder and sentenced to life without the possibility of parole. You examine the record and find that the evidence linking the defendant to the crime is quite flimsy. The only solid proof supporting the conviction is the testimony of an inmate who shared a cell with the defendant while he was awaiting trial, and who swears that the defendant confessed to the murder (a confession the defendant denies making). You read the snitch's testimony closely and find it transparently unconvincing.
  Applying the rules of appellate review in an objective manner, you would have to affirm the conviction. After all, the jury is the trier of fact, and it was entitled to return a guilty verdict based on the jailhouse confession alone. Yet what if you believe, to a moral certainty, that the confession is a fabrication and the defendant didn't do it? Must you affirm the conviction and let a young man you believe is innocent spend the next 60 years locked up like an animal in a 7-foot by 10-foot cage?
  I was thinking about that passage when I read the opening paragraph in yesterday's very interesting Kozinski opinion in Goldyn v. Hayes. Here is the introduction: "Petitioner spent 12 years in prison for conduct that is not a crime. We vacate her conviction pursuant to Jackson v. Virginia, 443 U.S. 307 (1979)." This introduction grabbed my attention, and I thought it would be worth taking a close look at the case to see whether Kozinski was following the rules or bending them to get to a result that he thought was just.

  Which was it? Well, let me tell you all about this very interesting case, and you can then decide for yourself. (Warning: Long, detailed post ahead. Do not read if you are operating heavy machinery or aren't a Legal Geek, First Class.)

  Joni Goldyn went to a local bank and opened an account using a fake name. Not knowing who she was — Goldyn had a number of prior felony convictions — the bank treated Goldyn very generously. The bank not only gave her an account, it also gave her a $1,000 loan, a $500 line of credit attached to her checking account, a credit card, and a "check guarantee card." The check guarantee card was a guarantee to recipients of Goldyn's checks that the bank would cover any checks that weren't based on sufficient funds.

  Over the next three months, Goldyn spent the loan money, used the line of credit, and then wrote a bunch of bad checks. Because the bank had issued the "check guarantee card," the bank had to cover the bad checks. At some point along the way, the bank send a letter to Goldyn telling her that it was going to cancel the check guarantee card. The exact language of the letter is unknown. In any event, Goldyn claimed that she never received the letter, and the bank did not actually cancel the guarantee card.

  After the letter was sent, Goldyn wrote five more checks for money she did not have in her account using the check card gaurantee. Goldyn was charged with violating Nev. Rev. Stat. 205.130(1), which makes it a crime if "a person . . . willfully, with an intent to defraud, draws or passes a check or draft to obtain [money or property] . . . when the person has insufficient money, property or credit with the drawee of the instrument to pay it in full upon its presentation."

  The theory of the prosecution was that Goldyn was intentionally and willfully defrauding the bank. She had obtained the account under false pretenses, and was writing the checks knowing that the bank would be stuck with the loss without any intent to repay the amount. A jury convicted Goldyn of five counts of this crime, one for each bad check she wrote. The Nevada Supreme Court later affirmed the conviction:
The elements of the crime of issuing a check against insufficient funds are: 1) with the intent to defraud; 2) making or passing a check for the payment of money; 3) without sufficient funds in the drawee institution to cover the check in full upon presentation. Appellant opened her checking account under an assumed name. Appellant received cash or merchandise in return for each of the checks at issue, and did not have sufficient funds in her account to cover the checks. Appellant’s check guarantee card carried a $500 line of credit, but appellant’s overdrafts far exceeded that amount. The credit union paid the checks because appellant’s use of a check guarantee card to draw the checks obligated it to do so. Although the payee of the checks was not injured, the credit union was injured by having to cover appellant’s bad checks. The jury could reasonably infer from the evidence presented that appellant, with an intent to defraud, drew and passed each of the checks at issue without having sufficient funds in the drawee institution to cover the checks.
  Goldyn's prior convictions made her eligible for a very severe sentence under the Nevada habitual offender statute. That statute is a sort of a three-strike-you're-out law: it meant that the punishment for each check crime was a potential life sentence. The sentencing judge gave her the maxiumum sentence: a whopping five life sentences, one for each check.

  Goldyn started serving her life sentences in 1991. In 2003, the parole board granted her parole petition, but Goldyn has remained on parole and her conviction has remained on the books. If she violated the terms of her parole, she could go back to prison for life. Goldyn filed a federal habeas petition asking the federal courts to vacate the state convictions. To obtain relief, Goldyn needed to satisfy the following legal standard from 28 U.S.C. 2254(d)(1):
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;
  Finally, we get to yesterday's opinion. In a decision authored by Judge Kozinski, the Ninth Circuit issued an unconditional writ of habeas corpus vacating Goldyn’s conviction and ordering expungement of all state and federal records relating to the offense. According to Judge Kozinski, Goldyn had simply never committed the crime in the first place, and the absence of evidence warranted federal habeas relief.

  The key issue, according to Kozinski, is understanding the true meaning of the check guarantee card that the bank issued thinking Goldyn was someone else. The check guarantee card was another line of credit, an implicit loan arrangement, and it remained ongoing even after the bank attempted to notify Goldyn that it was canceling the arrangement. As footnote 2 states:
[The bank] allegedly sent Goldyn a letter a few days before Goldyn wrote the five checks at issue, informing her that her check guarantee account was being closed due to excessive overdrafts. But the letter was sent "return receipt requested," and no receipt was ever returned. Goldyn claims she never received the letter. In any event, Goldyn’s account obviously had not yet been closed, as [the bank] continued to cover her checks.
As a result, Goldyn couldn't conceivably be trying to draw on an account with insufficient funds or credit: any check she wrote without funds in the account was just taking out another loan for the amount of the check. She might have been guilty of defrauding the bank, but she wasn't guilty of drawing a check on an account with insufficient funds or credit. The statute only applied when "the person has insufficient money, property or credit" in the account, and the check guarantee card was credit in the account. As a result, Goldyn could not possibly have violated the statute.

  Kozinski then provided the following analysis of whether the lack of evidence satisfied the requirements of 28 U.S.C. 2254(d)(1):
No rational trier of fact could have found that Goldyn committed the crime of writing bad checks as defined by Nevada law. See Jackson, 443 U.S. at 319. And no rational judicial system would have upheld her conviction. See 28 U.S.C. § 2254(d)(1). We are saddened and disappointed that the state supreme court unanimously affirmed a conviction carrying multiple life sentences based on such cursory and inadequate review of the record in light of the applicable statute.
  So was Kozinski fudging?

  Well, before you answer that question, consider a little bit of Nevada caselaw that Kozinski's opinon omits. In the case of Garnick v. First Judicial Dist. Court, 81 Nev. 531, 407 P.2d 163 (1965), the Nevada Supreme Court casually read the statute and concluded stated that it had the following elements:
The elements of the crime of issuing a check against insufficient funds are (1) intent to defraud, (2) the making or passing of a check for the payment of money, and (3) without sufficient funds in the drawee institution to cover said check in full upon its presentation.
  It's not clear how the Garnick court reached the conclusion that these were the elements of the statute. The Garnick opinion simply states these as the elements without analysis. Further, if you read the statute closely, the Garnick court's interpretation is different from what the statute actually says. That difference is really critical here: the text of the statute says that it applies when a person "has insufficient money, property or credit," and the Garnick court replaced "money, property or credit" with the somewhat narrower word "funds." The Nevada state prosecutors presumably read Garnick and treated the the Nevada Supreme Court's reading of the statute as binding.

  Under Garnick, Goldyn seems to have satisfied the statute. In fact, the Nevada Supreme Court applied the Garnick standard to affirm Goldyn's conviction. Kozinski acknowledges that Goldyn was guilty under this standard (without citing Garnick), but concludes that this interpretation of Nevada state law is just wrong:
The state court correctly identified that Goldyn "did not have sufficient funds in her account to cover the checks." But standing alone, this is not a crime; the statute is only violated if she wrote the checks without sufficient funds "or credit." Nev. Rev. Stat. 205.130(1). Thus, Goldyn’s undisputed lack of funds is of no consequence if she had sufficient credit to cover the checks.
  So was Kozinski fudging? If so, was that a good thing or a bad thing? Comment away.
Mr. X (www):
The Garnick court was fudging. Its fudging led to a woman spending twelve years in prison for overdrawing a line of credit.

The tragedy is that the clear language of the statute could be so obscured by sloppy opinion drafting on the part of the Nevada Supreme Court.

Kozinski did the right thing.

Yours truly,
Mr. X

...even more impressed with Kozinski...
2.2.2006 7:14pm
RichC:
Orin, you wrote:
As a result, Goldyn couldn't conceivably be trying to defraud the bank: any check she wrote without funds in the account was just taking out another loan for the amount of the check. She might have been guilty of defrauding the bank.

I believe the first instance of "bank" there needs to be changed to "merchant".

That aside, thanks for both of the posts -- very, very interesting with some fun (but enlightening) debate.
2.2.2006 7:16pm
Humble Law Student:
I must agree. It appears that she didn't violate the actual text of the statute. (assuming I am interpreting the use of "credit" correctly) However, I do hope that the state legislature will re-draft the statute to prevent this sort of thing from happening in the future.
2.2.2006 7:16pm
OrinKerr:
Thanks, Rich.
2.2.2006 7:17pm
That Guy (mail):
I thought state high courts' reading of state statutes received deference in federal court?

If that's the case, shouldn't Judge K have left the case alone, unless the state high court's reading was in some way unconstitutional?
2.2.2006 7:22pm
Nermous (mail):
Under the hypothetical, I think Judge K did fudge. He threw out the Nevada Supreme Court's interpretation of a Nevada statute. Doesn't federalism require that Federal Courts defer to state courts on matters of state law?
2.2.2006 7:24pm
BruceM (mail) (www):
The question is not a state court's interpretation of state law, but rather the idea that "an essential of the due process guaranteed by the Fourteenth Amendment is that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof - defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense."

In this case, the Nevada Supreme Court is the one that did the fudging, not Judge K. A state supreme court can't violate a defendant's due process by ignoring the fact that the evidence is legally insufficient to support a conviction.
2.2.2006 7:33pm
Lawstsoul:
Under the hypothetical, I think Judge K did fudge. He threw out the Nevada Supreme Court's interpretation of a Nevada statute. Doesn't federalism require that Federal Courts defer to state courts on matters of state law?

What if she had been convicted of murder under the same set of facts, except that the NSC made that interpretation. I think such a clear misinterpretation of the statute amounts to a due process violation.
2.2.2006 7:37pm
Greedy Clerk (mail):
There's no question Judge Kozinski totally fudged it. The State Supreme Court's interpretation of its law IS binding (I suggest Humble Law Student go study some fundamental principles) regardless of the fact that it's interpretation is arguably incorrect -- federal courts have bent statutes in a worse way. The case was on the books for almost thirty years; thus, Goldyn HAD notice.

What Kozinski did was wrong, or more probably his law clerk didn't do their research well enough -- and people here may be surprised that I say that given my relatively liberal views compared to most people here. Procedure is important, and he should have written a special concurrence protesting the result, but concurring on force of precedent, as did Judge Reinhardt in the three strikes cases following Lockyer. I commend Orin for bringing this to our attention, and Kozinski deserves the same treatment from the right that Pregerson got when he did the same thing by dissenting in the post-Lockyer three strikes cases.

I would add that, on my independent view of the case, I find the sentences imposed to clearly violate the 8th Amendment as I read it. I don't have that much of a problem with her conduct being classified as criminal, even given the state statute, as she was on constructive notice and a reasonable person would know such conduct was criminal.
2.2.2006 7:41pm
That Guy (mail):
BruceM-- Even Judge K seems to think that the evidence supports a conviction under the state court's reading of the statute:

The state court correctly identified that Goldyn "did not have sufficient funds in her account to cover the checks."
2.2.2006 7:43pm
Greedy Clerk (mail):
What if she had been convicted of murder under the same set of facts, except that the NSC made that interpretation. I think such a clear misinterpretation of the statute amounts to a due process violation.

As to the first hypothetical, it's not the case so it's irrelevant -- if the queen had balls she'd be the king. As ot whether "a clear misinterpretation of the statute amounts to a due process violation" you may "think" that, but that is not the law. The due process violation is lack of notice -- here, the woman was on notice, there was a 30 year old case. The conservatives are so quick to excuse Judge Kozinski for obvious judicial activism, and ignoring his obligation to follow a higher court (in this case the Nevada Supreme Court would be a higher court as it's view of state law in 1965 binds Judge Kozinski to recognize that that was the law). Moreover, the fact that he did not cite the case shows he was either up to no good or did not know of it. Both are inexcusable.

2.2.2006 7:52pm
Eric S. (mail) (www):
Fudging. In light of that, he should have refrained from the slap at the prosecutors' and Nevada courts' "obligation to serve justice," not to mention the gratuitous citation to Kennedy's Dretke dissent: "In a society devoted to the rule of law, the difference between violating or not violating a criminal statute cannot be shrugged aside as a minor detail." Mentioning Garnick (at least tucking it away in a footnote) should have been done, too. Especially in a judicial system that expects *advocates* to cite contrary/unfavorable precedent.
2.2.2006 8:05pm
Drew S. (mail):
What about another hypothetical:
A state has a law against murder, and the statute clearly spells out murder as 1)killing another person 2)...
The supreme judicial court of the state interprets the statute to be have the requirments that a person 1) look at another in a threatening manner 2)...
without ever requiring an actual death. A defendant is found guilty and sentenced to prison under the inerpreted statute, where clearly he did not violate the plain wording of the original statute. The conviction stands through all state appeals, and reaches federal court as a habeas case. What should the judge do.

I submit that this case is different in degree but not in type from the case at hand. Specifically the State court essentially rewrote the law in with its interpretation. If one disagrees on how these two cases should be handled then where exactly is the line that separates them. How grossly must a state court rewrite a law under the guise of interpretation before it is a federal matter?
2.2.2006 8:33pm
Lawstsoul:
As to the first hypothetical, it's not the case so it's irrelevant -- if the queen had balls she'd be the king.

GC
I disagree. The difference is only in the degree of misinterpretation. A criminal statute has to define the elements of the crime. A conviction w/o proof of every element is a violation of due process.

I don't understand what you mean by:
"-- here, the woman was on notice, there was a 30 year old case."
2.2.2006 8:38pm
Strophyx:
I don't really have an opinion, since I'm neither an attorney nor a law student, but I do have a question. Now Justice Kozinski appears to disagree with the the Garnick interpretation by the Nevada Supreme Court, rather than defering to the court as the arbitrar of the state's laws. Everyone accepts that, whether due to simple sloppiness or due to an attempt to bend the law, the Nevada court did omit part of the explicit text of the statute that other reasonable readers might find important (certainly Ms Goldyn's attorneys did).

My question is simply this: is the deference due the state courts' interpretation limited or not? For example, suppose the Nevada Supreme Court elided not only the textual reference to "credit", but instead the entire reference to insufficiency, so that the only remaining elements were (1) an intent to defraud and (2) drawing or passing a check. Should the federal courts defer to this interpretation as well, such that the statute would be expanded from the actual text to cover situations in which a defendant wrote a check for which there were sufficient funds on deposit as part of some scheme to defraud? As I said, I don't know what the rules of the game are.
2.2.2006 8:41pm
Greedy Clerk (mail):
I don't understand what you mean by:
"-- here, the woman was on notice, there was a 30 year old case."

What I mean is that the Nevada Supreme Court had explicated the scope of the statute 30 years prior in the case Orin cites. Thus, the woman was on notice that her conduct was criminal. If she has notice, there is no due process violation. And of course, fact that she did not read the cases is of no moment as ignorance of the law is not a federal constitutional defense (except in one case, but it's not applicable). Simple as that. As t oyour statement that it "depends on the degree of misinterpretation", I agree, but that is not relevant to this woman's conviction. It's relevant to the original conviction in the case cited from 1965. Since 1965, everyone in Nevada was on constructive notice that the conduct Goldyn engaged in was criminal. Period.

Judge Kozinski's opinion is wrong. Further, the fact that he did not cite the relevant case shows one of two things: either (1) he is intentionally withholding a crucial case to reach a certain result; or (2) he is ignorant of a crucial case that would probably dictate a different result. Both options are inexcusable. And Judge Kozinski therefore deserves condemnation for the way in which he adjudicated this case. (And by condemnation, I mean only that we should say it's wrong.) If anyone can justify his failure to cite that case, I'd love to see it.

2.2.2006 8:44pm
Bruce:
Orin, great post. My answers:

Fudging, yes.

Wrong? Perhaps not if it's *rare*. Even the Supreme Court has one-off decisions (e.g., Bush v. Gore). But I don't see how any court reviewing this decision will be able to come up with a principle to explain why Nevada interpretation of Nevada law isn't dispositive.
2.2.2006 8:47pm
Greedy Clerk (mail):
Strophyx, it depends what you mean by "defer." If a state court misconstrued a statute in such a gross manner as a matter of first impression, the federal court could vacate the conviction on habeas, because the person so convicted was not on notice that the state court would construe it as such. Another person afterwards would not be entitled to such relief, because that person would be on notice that the state court would interpret the law in the objectionable manner. Get it. It's about notice.
2.2.2006 8:48pm
James B. Shearer:
I found Kozinski's opinion unconvincing.

At one point he claims the purpose of making writing bad checks a crime is to protect merchants and that therefore there is no crime if the merchant is paid. I don't see any reason to limit the law in this way. I think the purpose of making writing bad checks a crime is to protect anyone who might bear the loss whether it is the merchant, the bank or a third party.

I once was unable to pay with a check at a store after the store called a third party service which guarantees checks and the service declined to guarantee my check. If the service had agreed to guarantee my check and it had bounced, by Kozinski's analysis I would not have written a bad check. He would claim the third party guarantee constituted an offer of credit to me in the amount of the check and therefore my check was actually good. I think it is reasonable for the Nevada Supreme Court to disagree.

Now here of course the guarantee was made by the issuing bank and not a third party. Perhaps that makes a difference but Kozinski does not make any argument why it should. He just asserts that a check guarantee card is the same as an unlimited line of credit which certainly seems debatable to me.

It has been suggested that the Nevada Supreme Court is ignoring the word "credit" in the law. But the Court seems to acknowledge that if the overdrafts had been limited to the $500 overdraft line of credit that this would have been ok. The Court just differs on whether a check guarantee card constitutes credit. Kozinki's opinion does not adequately explain why this interpretation of the law is wrong much less so completely unreasonable as to justify being overruled by a federal court.
2.2.2006 8:51pm
Stephen Aslett (mail):
Greedy,

I agree with you about the procedural due process issue, but don't you at least think there's a colorable argument that one's right to substantive due process is violated when a state court's interpretation of a state statute is irrational?
2.2.2006 9:43pm
nk (mail) (www):
Judge Kozinski is a bad judge. The lowlife lied to get the opportunity to steal. Then she stole. The jury followed the substantive law of the State as interpreted by its highest court to convict her. The state judge sentenced her according to the State's law. In the entire scheme of things a bad judge who sets guilty people free is better than a bad judge who sends innocent people to prison. Except that a bad judge is liable to do both.
2.2.2006 9:44pm
unenumerated (www):
Kozinksi is right, but there's another reason that he is right that he did not mention.

Before I get to that reason, however, I most point out that it is the height of absurdity to claim that the defendant here had "notice" of the law in any sense except the extremely fictional sense lawyers often like to give perfectly good English words. Hell will freeze over before the vast majority of Nevada checking account customers ever actually (a) read this particular statute and then (b) predict how the Nevada Supreme Court will twist the meaning of the word "credit" so that they can actually (c) know what behavior of theirs will actually be held to be permissible and impermissible under Nevada statute. The idea that Nevada's legal process gave the checking customer here "notice" is under any common sense contemplation the most fictional of fictions.

Even putting Due Process notice concerns aside, any ambiguity in a statute should be construed against the drafter (here the State of Nevada) where executive branches are not entitled to more power than the legislative has granted. If this were federal law, such a result would be dictated by the neglected, but never overturned, cases Morrill v. Jones and U.S. v. Eaton.

These cases hold that the executive branch and the courts may not interpret federal statutes to narrow the class of allowed behavior or expand the class of forbidden behavior. The Court's justification for these holdings appears to be separation of powers -- the idea that the executive branch can have no more power than the legislative branch has granted -- rather than the Due Process Clause. I'd say these results are dictated by either of the Faithfully Execute Clause and the Ninth Amendment. Conceivably, there might be similar doctrines expressed or implied by the Nevada state constitution.

I discuss Morrill and Eaton further at here.
2.2.2006 9:45pm
Pius XXX:
It's debatable whether possessing the guarantee card constituted credit within the meaning of the statute. So in that sense, Kozinski fudged. But he did it so elegantly, that I am inclined to forgive him! :)
The thing that bothers me, that nobody has brought up, is how does a quintuple life sentence for a minor economic crime, no matter how recidivist, not constitute cruel and unusual punshiment! I don't know the case law on that, but it can't be right!
2.2.2006 9:47pm
nk (mail) (www):
P.S. Why just pick on Kozinski? The other two judges on the panel are just as clueless. Maybe federal judges should be appointed for limited terms.
2.2.2006 9:53pm
AppSocRes (mail):
I find it ironic that Judge Koscinski has essentially reversed himself. His original example seems to argue against a judge accepting a narrowly legalistic analysis of a case when such acceptance clearly supports an injustice. In this case he makes an extraordinarily narrow and legalistic interpretation of a state statute to let a career criminal off the hook -- another kind of clear injustice. The only consistency in Koscinski's stance is that he always supports the criminal, whether wrongfully or rightfully convicted.
2.2.2006 9:55pm
Patrick (mail):
Hmmm. If fudging it be, it is the kind of fudging appropriate in criminal cases - any technicality ought to suffice.

But one question: does the 'funds in the drawee institution' from the test articulated by the Nevada SC not include, arguably, credit? Particularly in light of the text of the statute? I'd have to guess not since it was surely pressed in argument, but it seems like an equally legitimate area to 'fudge'.

Semi-unrelated anecdote:
The famous example in Australia is one of our former Chief Justices and a very good advocate who represented (before becoming Chief Justice!) 12 out of 13 Malaysians appealing a death sentence before the Privy Council. He found a defect in the warrants, and so his 12 had their sentences vacated. THe 13th, not wise enough to engage Sir Barwick, was executed.
2.2.2006 10:00pm
Jack John (mail):
I think Judge K did fudge. He threw out the Nevada Supreme Court's interpretation of a Nevada statute. Doesn't federalism require that Federal Courts defer to state courts on matters of state law?

Obviously, this argument was made by someone who has never had to research Nevada law, which is incredibly skimpy. There is very little actual Nevada law. It is quite often the case that law is ad hoc in the courts because there is a gap in a statute or the law or legal principles that apply have been imported from Arizona or Delaware or California.

No, K did not fudge, because this was an open question. K could have certified the question to the Nevada State Supreme court, but he did not have to. His interpretation of what the Nevada State Supreme court held and how those legal principles apply in future cases is reasonable. I would also note that the proper standard in such circumstances is whether the ruling is consistent with how the state supreme court would rule were it deciding the case. K can simply say, "This is consistent with what the Nevada State Supreme court would have done in this case."

I would also note that this was not strictly a legal question. There was a mixed question of law and fact here, and K applied a flexible legal standard to a set of facts. If anything, it is his view of how a rational jury or a rational court would interpret those facts that decided the outcome. Surely, he could have come out the other way. But he applied the proper standard and analyzed the facts in a straightforward fashion. To be honest, as I was reading the factual summary by Orin, I thought, "Hmm, well, I don't know this legal area so well, but that probably isn't a violation, because the account was still open." It doesn't require fudging, or undue sympathy for the criminal here, to think that no crime was committed under the statute at issue.
2.2.2006 10:10pm
Nunzio (mail):
This is an extremely odd case. Greedy Clerk is right, though, that no matter how bad the Nevada Supreme Court 40 years ago mangled the statute by reading two words out of it, the defendant here can't complain.

Given that this lady was on parole, it seems like Kozinski's just nuts to damage his credibility on this one. He doesn't get much by expunging her record on this one.
2.2.2006 10:22pm
shergald (mail) (www):
Cases involving inmate testimony as the sole basis for implicating a defendant in a crime, whether it be murder or not, should be refused at the district court level before it is ever sent down to circuit for trial. Prosecutors should be required to present more than he said/he said evidence in which the accuser is not even a witness to the crime.
2.2.2006 10:24pm
2L:
i have read only a handful of kozinski opinions, but i've loved every single one. he's a brilliant writer, imho. in this case, however, it is questionable whether he made the right move. i think his interpretation was correct, but i'm wondering why he didn't "slap" the nevada state supreme court in the face in a more clever manner....like in the trident case (847 F2d 564) where he basically mocked judge traynor for 5 pages before saying in the last sentence that he was bound by its rationale because of erie. as an aside, i think that in two years of law school, the trident opinion definitely cracks my top three favorite opinions.
2.2.2006 10:28pm
Lorenzo (mail):
Could it be that Judge Kozinski was striking a blow against judicial activism by the Nevada Supreme Court? That court redefined the language in the statute, that is, enlarged the description of the crime. In any federal appeal, the statute in question would have to be reviewed and the language discrepancy noted.
The defendant was technically "innocent" since her actions didn't meet the statutory definition, but was convicted when the Nevada Supreme Court enlarged that definition. I find it hard to believe no federal issue is involved there and the NSC should have been accorded deference.
2.2.2006 10:41pm
Greedy Clerk (mail):
The thing that bothers me, that nobody has brought up, is how does a quintuple life sentence for a minor economic crime, no matter how recidivist, not constitute cruel and unusual punshiment!

Actually, I brought it up above. The reason why is because of two outrageous Supreme Court cases from a few years ago, Lockyer v. Andrade and Ewing v. California. Justices Scalia and Thomas interpret the Eighth Amendment NOT to apply to the length of prison terms --- textualists, my a--.

By the way, for those defending Judge Kozinski, I have yet to see ANY explanation, let alone an adequate one, for why Kozinski did not cite the relevant case. Either (1) he is being misleading to reach a desired result; or (2) he is incompetent (note that the Nevada Supreme Court's opinion "under review" cited this case). Neither is forgiveable.

2.2.2006 10:47pm
Greedy Clerk (mail):
Cases involving inmate testimony as the sole basis for implicating a defendant in a crime, whether it be murder or not, should be refused at the district court level before it is ever sent down to circuit for trial.

Wow, you really are not familiar with the US court system . . .

2.2.2006 10:48pm
Reg (mail):
This is an easy case and Kozinski is correct. In fact, I don't see why Orin makes anything of it at all.

If I remember right, a federal judge applying state law is to apply the law as he predicts the state supreme court would.

Would Nevada supreme court apply the literal language of Garnick? No way. I doubt it would even consider Garnick because the language is dicta.

The Garnick case did not depend on whether the defendant had insufficient credit or insufficient funds. The Garnick court summarized the statute's elements and excluded language not applicable to the case. It was not interpreting or construing those terms of the statute. Thus it can be ignored.

I feel like I'm missing something, because so many smart people here shouldn't think this is that hard.
2.2.2006 10:58pm
AnandaG:
I am not a lawyer, but, reading the opinion, it makes perfect sense. As Kozinski points out in a footnote, either the bank expected to be repaid the money they covered her checks with via the check guarantee card, or it didn't. If the former, the check guarantee card is credit, which means that she had not exceeded her credit with the covering institution, and therefore one of the essential elements of the crime of writing a bad check is absent. If the latter, then the money was a gift, and there is equivalently no crime.

I also don't see the federalism objection to K's opinion. Being convicted of a crime when the text of the statute indicates no crime has been committed is a clear denial of due process and that takes it out of the arena of state law. Thus deference to state courts in the arena of state law is not an issue.
2.2.2006 11:06pm
James B. Shearer:
Reg, why is it obvious that a check guarantee card is the same as a credit line? Kozinki claims it is but I don't see it.
2.2.2006 11:08pm
Thomas Roland (mail):
Well, before you answer that question, consider a little bit of Nevada caselaw that Kozinski's opinon omits. In the case of Garnick v. First Judicial Dist. Court, 81 Nev. 531, 407 P.2d 163 (1965), the Nevada Supreme Court casually read the statute and concluded that it had the following elements:
The elements of the crime of issuing a check against insufficient funds are (1) intent to defraud, (2) the making or passing of a check for the payment of money, and (3) without sufficient funds in the drawee institution to cover said check in full upon its presentation.
It's not clear how the Garnick court reached the conclusion that these were the elements of the statute. The Garnick opinion simply states these as the elements without analysis.

Having read all of the comments, I'm amazed that no one has commented on the obvious question whether the Garnick language was dispositive or dictum. If dictum, it DOES NOT DEFINE NEVADA LAW. If that interpretation (as applied to the facts in that case and in the instant case) was necessary to the decision in Garnick, then it clearly interpreted the statute in a manner binding on the federal court. Maybe Kozinski did not mention the case because it was dictum and didn't deserve mention.

My own (personal) opinion is that the 8th amendment was violated by the sentence, but I suspect that the SCOTUS would disagree with me--damned activist judges!!! (Like those damned activist founders who condoned slavery and property qualifications for voters.)
2.2.2006 11:18pm
Ed Humphrey (mail):
The oral argument is quite good..and kozinski talks throughout....and his reasoning becomes clear.

oral argument
2.2.2006 11:22pm
Ed Humphrey (mail):


The link helps...
2.2.2006 11:24pm
Ed Humphrey (mail):
ok i can't quite figure that out...but go to

www.ca9.uscourts.gov/ca9/media.nsf/Media+Search?OpenForm


it is case 04-17338
2.2.2006 11:25pm
Greedy Clerk (mail):
OK genuiuses, if it was so obviously not binding, then why didn't Judge Kozinski cite the case?

No answer? Didn't think so.

Also, federal courts are bound to follow the considered dicta of state courts on issues of state law. Look it up. Thanks for playing.
2.2.2006 11:26pm
Kate1999 (mail):

If I remember right, a federal judge applying state law is to apply the law as he predicts the state supreme court would.


You're getting that from diversity jurisdiction in civil procedure. That doesn't apply in criminal cases.
2.2.2006 11:39pm
Jake:
Why are people talking about guessing what the Nevada Supreme Court would have done--the Nevada Supreme Court upheld the conviction! Goldyn is now seeking (and got) habeas relief.

As Professor Kerr pointed out, in order to win she should have to show not that the NV court was wrong, but that the conviction was "contrary to, or involved in an unreasonable application of, clearly established Federal law." Since there was no application of federal law, you would need to find some federal law that it was contrary to. Kozinski tries to tie in federal due process guarantees, but that's quite weak--as GC said, the only way she could have a realistic due process claim is if the NV court had changed the law while throwing her in jail.

I think that Kozinski is pretty clearly fudging--how many habeas opinions spend 70+ percent of their space discussing how the state court got state law wrong?
2.2.2006 11:43pm
december (mail):
Here are my 2 cents worth as a financial expert (an actuary.) A check guarantee card can be distinguished from a line of credit. The difference is that the line of credit is intended to be routinely used in the normal course of business. A customer is expected to borrow extensively within his line of credit.

I believe a guarantee card's main purpose is to make the person's checks more acceptible. It's not designed to provide credit. The guarantee is expected rarely to come into play.
2.2.2006 11:58pm
Thomas Roland (mail):
I've now read Garnick. The "interpretation" is not "considered dictum." It isn't dictum at all. And it is not dispositive. It's just sloppy writing by the Nevada court. Sloppiness is both common and excusable with busy courts when the language involved makes no difference whatsoever to the case. The petitioner in Garnick was charged in the language of the statute including the "credit" part, so the court's foreshortened language is irrelevant and in no way "interpreted" the statute one way or another. The petitioner's complaints did not go to the "credit" issue. She complained that the accusatory pleading (1) did not specify whether she acted as an individual or as an agent of a corporation and/or whether the account was hers or the corporation's and (2) did not name the corporation involved.

I've been reading this blog for some time and I've generally been positively impressed with the intelligence of the posters and of a substantial portion of the commenters.

In this case I'm extraordinarily disappointed with the inexcusable sloppiness of the poster which miseducates the nonlawyer readers and does a disservice to a fine appellate judge. Judge Kozinski would have looked like an idiot if he had mentioned Garnick at all. He is not the one who looks like an idiot now.

(And just so we're clear on what my bias may be. I'm well aware that Judge Kozinski is a darling of legal conservatives. I've been a legal "leftist" or "liberal" or whatever label one may place on me, but in any case never a friend of legal "conservatism." I'm shocked that legal conservatives are now treating him so shabbily and on such frivolous grounds. He may be wrong, but certainly not for "ignoring" Garnick.)
2.3.2006 12:33am
Buck Turgidson (mail):
There is a bunch of issues that are missing from the discussion.

1) Note that Kozinski's decision did not address the real problem in the case--the three-strikes laws and the sitting judge's idiotic interpretation of them. Why exactly did each bad check warrant the maximum sentence?
2) Fudging is quite common for state Supreme Courts. Not isolated cases, but almost wholesale! The courts want to reach certain conclusions, but have difficulty fitting their conclusions into the statutory language. BAM! Fabricated legislative intent cures all ills (even when there is clear record of divergent legislative intent). Since most such decisions are not reviewable, crap like Garnick stays on the books.
3) The issue of the "elements" in Garnick being dicta--if the Garnick offense clearly fit the listed elements, it is irrelevant if the court mentioned "credit" or not. That is, if Garnick had no credit to cover the bad checks then simply applying the "insufficient funds" test is enough. NSC was sloppy, but not necessarily wrong. If Kozinski noticed this particular twist, he was within his right to ignore the case--since Garnick had no credit, the case was not applicable to Goldyn who did have credit. Of course, if Garnick did have credit, this would become more difficult to explain away.

Had someone here actually looked up the case and read the whole thing, he would have found that the issue in contention in Garnick, although superficially similar to Kozinski's ultimate opinion (the crime charged is not a crime) hinged on Garnick's claim that it was not clear from the charge whether she was represented as herself or on officer of a corporation and it was not clear whose funds were insufficient. At no point was the issue of credit raised, whereas for Goldyn credit was the main issue in contention from the beginning.

Furthermore, the opinion cites "original information":

"That said defendant on the 4th day of September, A.D., 1963, or thereabout, and before the filing of this information, at and within the County of Churchill, State of Nevada, did then and there wilfully and unlawfully, with intent to defraud, for herself or as an officer of a corporation, make and pass a check for the payment of money, drawn upon a bank, when in fact she [and the corporation] had insufficient money or credit with the drawee of such instrument to meet and make payment of the same in full upon its presentation, in the manner following, to-wit: Making a check [on the account of Midwest Livestock Commission Co.] for the sum of Thirteen Thousand Twenty-six and 27/100 ($ 13,026.27) Dollars, drawn upon the Security National Bank of Nevada, Fallon Branch, Fallon, Nevada, when [in fact neither] she [nor the Midwest Livestock Commission Co.] had sufficient money or credit with said bank to make payment of the same."


When the opinion lists the elements later on, the word "funds" is not clarified because that is not the issue in contention. Perhaps if it were, the court would have been more careful to reconcile the two statements. But their concern was with the issue that it being a corporate account made any difference in the charge. Since the statutory language is cited earlier in the opinion, and there is no clear statement overrulling it, why exactly should we assume that "funds" here could not include "credit" as well?

Having said all this, Kozinski was clearly fudging. What puzzles me is that there is any surprise in this--haven't any of you read Brandeis or Posner opinions that still stand? They are fudge upon fudge upon fudge. Being "tough on crime" tilts the fudges in one direction, considerations of "fairness" tilt in the opposite direction. Allowing everyone a day in court tilts fudges in one direction. Protecting businesses from frivolous lawsuits tilts in the other direction. Although this is usually seen as a conservative/liberal distinction, here is a case that shows that the "ideology" is far less clear.

Greedy Clerk, please try to be less narcissistic when someone disagrees with you or asks for an explanation. You'll come across as more intelligent and less of an a**.
2.3.2006 12:37am
Thomas Roland (mail):
Jake: The court's opinion explains in some detail why the federal claim IS NOT WEAK. Your sayin' so don't make it so. Can you explain WHY and HOW the court's reasoning is wrong? Can you give us your reasoned legal argument showing WHY and HOW the defendant's federal constitution rights HAVE NOT been violated? If you're not a lawyer, you're excused. If you are, for shame.
2.3.2006 12:39am
Buck Turgidson (mail):
To Thomas Roland,

Your post appeared while I was composing mine and we seem to be in complete agreement re: Garnick. It seems that people read only the "relevant" quotes and miss the whole point.

We disagree on one issue--I don't blame Orin for citing Garnick (although I would have had more of a problem had this happened in a class). I do, however, blame the commentators for failing to read the opinion before commenting on it.

Initially, I was going to post with just the first paragraph under (3), then skipping straight to the "Having" paragraph. But I thought better of it and looked up the case. My intuition proved correct--credit was not an issue in Garnick and the court was simply sloppy. So I added the next three paragraphs, including the citation from the case.
2.3.2006 12:45am
OrinKerr:
Thomas,

I'm not sure why you think I misrepresented Garnick; as I explained in my post, Garnick's statement of the elements was a casual statement with no analysis that misses the "credit" part of the statute.
2.3.2006 12:54am
Jake:
If the Nevada state supreme court got the state law right, there is no federal claim (since Goldyn wouldn't be "in prison for conduct that isn't a crime" if the conduct is actually a crime). This is why Kozinski spends the whole opinion arguing that the Nevada state supreme court got the state law wrong.

The problem is that Kozinski is not authorized on habeas review to decide that the state court got the state law wrong. Because of the procedural posture (and the unfortunate fact that Kozinski isn't on the Supreme Court), Kozinski can't even check for "fudging" by the state court, a la Martin v. Hunter's Lessee.

The only question way Goldyn should win is if, assuming the state court got the state law right, her conviction violates federal law. Period. It's not just that I say so--that's the law, according to the statute cited by Professor Kerr in the initial post.

Is there anybody here who is actually familiar with federal procedure that wants to claim that some federal law was violated, assuming the court got the state law right?
2.3.2006 12:56am
Reg (mail):
Greedy Clerk, look at your question:

"if it was so obviously not binding, then why didn't Judge Kozinski cite the case?"

Because it was obviously not binding.

___

I don't know enough about the credit line / checking account distinction to know whether Kozinski fudged that part of it.

Kozinski clearly would have been fudging had he relied on the 8th amendment. SCOTUS has clearly upheld 3 strikes laws and a circuit court holding otherwise would be in violation of its duty. Also, I see no problem with harsh sentences for career offenders, especially in a system where 5 life sentences results in parole after 12 years.
2.3.2006 12:59am
Conrad (mail):
Reg:

You are not missing something. Forty some other folks have though.
2.3.2006 1:28am
David M. Nieporent (www):
A check guarantee card can be distinguished from a line of credit. The difference is that the line of credit is intended to be routinely used in the normal course of business. A customer is expected to borrow extensively within his line of credit.
That may describe the motives of the bank, but it doesn't change the nature of the transaction. Which is credit.
2.3.2006 2:01am
Thomas Roland (mail):
Dr. Kerr, I think you misrepresented Garnick for the reasons I mentioned in my earlier posts. It's true that you accused the Nevada court of "casually" and "without analysis" "interpreting" the statute, but you then went on to imply that lawyers (the prosecutors, for instance) "must have" relied on that case in their prosecution here, etc. If those prosecutors were anywhere near average in competence, they certainly DID NOT rely on Garnick for any such thing, for they would have seen that the court was not interpreting the statute at all. The issues were entirely different. I am simply mystified at your citation of the case and your use of it to imply that it interpreted the statute. Most first year law students would know that. If you were simply attempting to encourage discussion, you could have gotten there by positing a fictitious Nevada case; you didn't do that. You pretended that there was a real Nevada case that had intepreted the statute. That was very misleading, whether or not it was intentional.
2.3.2006 2:13am
Buck Turgidson (mail):
Jake, I think you are missing the point of a habeas corpus petition. Does imprisoning someone who has not committed a crime not qualify as a constitutional violation for you? I am glad Kozinski is on the court and not you.
2.3.2006 2:40am
OrinKerr:
Thomas,

I'm afraid I still don't understand: You accuse me of misrepresenting Garnick because you think the Nevada state prosecutors shouldn't have relied on it?

To be clear, when I say the prosecutors "must" have relied on it, I mean that in the sense of "it must have rained today," not in the sense of "you must pay your taxes." In other words, I assume the jury instructions in the Goldyn trial tracked Garnick, just like the Nevada Supreme Court's opinion affirming Goldyn's conviction tracked Garnick.

Let me put it another way: do you think it is simply a coincidence that the Nevada Supreme Court's misreading of the statute when it affirmed Goldyn's conviction is almost word-for-word the misreading of the statute from Garnick? Here is Garnick's language:
The elements of the crime of issuing a check against insufficient funds are (1) intent to defraud, (2) the making or passing of a check for the payment of money, and (3) without sufficient funds in the drawee institution to cover said check in full upon its presentation.
Here is the Nevada Supreme Court's language when it affirmed Goldyn's conviction:
The elements of the crime of issuing a check against insufficient funds are: 1) with the intent to defraud; 2) making or passing a check for the payment of money; 3) without sufficient funds in the drawee institution to cover the check in full upon presentation.
Isn't it pretty clear that the Nevada Supreme Court was relying on Garnick's language when it affirmed Goldyn's conviction? If you think it was just a coincidence that the two opinions used almost the exact same sentence, I am interested in hearing your reason why you think that.

In the meantime, you might want to keep this post in mind before you respond further.
2.3.2006 2:52am
minnie:
Yet what if you believe, to a moral certainty, that the confession is a fabrication and the defendant didn't do it? Must you affirm the conviction and let a young man you believe is innocent spend the next 60 years locked up like an animal in a 7-foot by 10-foot cage?

The answer is clearly no, imo. That would be a moral crime, imo. No judge should have to commit a moral crime while being on the bench.

As for whether Judge Kozinsky "fudged" on the Goldyn case, I believe he did.

Was he right to do so? No. I think judicial activism is wrong if it isn't in pursuit of a noble end. This lady is a career criminal. Although I do find the sentence harsh and could be convinced it does violate the eight amendment, no matter what the SC has ruled, Judge Kozinsky wasted his "fudging" allowance on the wrong case. The lady herself should have been glad she was out after 12 years, and probably pursued the matter to get her record expunged so her next crime wouldn't be dealt with too harshly.
2.3.2006 3:28am
Jack John (mail):
I still don't see where the fudging is.
2.3.2006 4:24am
T. Gracchus (mail):
Statutory language trumps case authority. The salient statute is not ambiguous in any relevant sense. The one prior decision departs rather plainly from the statutory language without offering any explanation, and, faced with the statutory language appears to be plain errror (if it is a holding at all). A federal court is not bound. Which suggests Greedy Clerk, among others, have to make a different case about fudging. Interesting case, but I do not think we can tell which Kozinski was up to.
2.3.2006 5:51am
Public_Defender:
Garnick has nothing to do with Goldyn's case. The court in Garnick had no reason to think about the credit v. funds-in-account distinction. In Garnick, the defendant claimed that
. . . the original information is that it was fatally ambiguous as to NRS 205.130 (set forth in the margin) in that the information failed to specify whether she drew the check for herself or as an officer of a corporation, nor does it specify whose account had insufficient funds -- hers, or, if she was drawing on a corporate account, the corporation's. Petitioner seems particularly disturbed that the original information did not name the corporation involved. We rule that under the facts of this case there is no merit in the attacks thus made.
407 P.2d at 164-5.

It's lazy or dishonest for a court or prosecutor to apply the "definition" of the offense in Garnick to a case in which the issue is the availability of credit. There was no holding on the issue.

Further, even if the Nevada Supreme Court tried to eliminate an element, it would violate the defendant's right to have a jury determine guilty beyond a reasonable doubt of each element. As Justice Scalia wrote in Blakely v. Washington, judges can't take away a jury's power to determine guilt beyond a reasonable doubt.

Removing the "or credit" language from the statute effective removes an element. Judges can't do that.

Kozinski didn't fudge. Every judge who heard the case before him did.
2.3.2006 9:05am
Juan Notwithstanding the Volokh:
Fudging. The Supreme Court would never say that a state supreme court was wrong about its interpretation of state law, but the Wizard of Koz is willing to say so.
2.3.2006 9:13am
Juan Notwithstanding the Volokh:
A couple more comments:

1) Even if Garnick did not interpret the statute, the Nevada Supreme Court affirmed THIS conviction, stating what the elements of the crime are. A federal court simply cannot correct a state supreme court's interpretation of its own law. The case was decided on "adequate and independent" state law grounds.

2) For those of you worried about the 3 strikes law, note that the defendant here had been paroled and was not serving a life sentence. For reference, I think that Lockyer v. Andrade was incorrectly decided. Incidentally, without researching Nevada law, I doubt that she would have gone to prison for life upon any parole violation. Usually a violation puts you in jail for some additional amount of time and then you are paroled again.
2.3.2006 9:18am
Public_Defender:
AppSocRes writes:
In this case he makes an extraordinarily narrow and legalistic interpretation of a state statute to let a career criminal off the hook. . . .
First, courts are supposed to give narrow readings to criminal statutes. Remember the Rule of Lenity?

Second, I think you've explained why the state court judges ignored the law to leave the conviction untouched. They saw a "career criminal" and didn't want to rule for her.

At a bar association meeting, an ex-prosecutor/sitting local trial judge told us we should advise our clients to plead guilty even if they hadn't done what they were charged with. Why? Because they had to be guilty of something else that they hadn't been caught for.

As I said before, Kozinski did not ignore the law. He was the first judge in this case who applied the law.

It's a serious indictment of the Nevada judiciary that that Nevada state judges were unable or unwilling to clean up their own mess.
2.3.2006 9:23am
Brad (mail):
I haven't read all the comments yet (nor have I linked to the cases and statutes to read them either), so if I'm repeating someone else or missing crucial relevant facts, then I apologize, but I firmly believe that Judge Kosinski fudged because he ignored Nevada's interpretaion of Nevada's law. One of the fundamental things I remember about federalism in the legal system is that a state Supreme Court is the final arbiter of the interpretation of state law. A federal court may disagree with that interpretation, but must apply it anyway.

I must agree with anyone who quibbles with the Nevada Supreme Court's interpretation of the Nevada statute. It appears that they paraphrased the statute and that this paraphrase led to incorrect subsequent application of the statute. But this fact is immaterial when discussing whether Judge Kosinski acted badly. The Nevada decision was the determinitive interpretation of the Nevada statute.

Those uncomfortable with this conclusion should note the relevant dates. The defendant began serving her life sentence in 1991. The fact pattern Orin has provided us does not say when she committed her crime, but is safe to assume (for nothing more than the purposes of speedy trial) that the offense occurred sometime in the late 1980s or early 1990. In contrast, the Nevada Supreme Court decision originally "misinterpretaing" the relevant Nevada statute was decided in 1965. Accordingly, if the Nevada legislature felt that Nevada courts were incorrectly applying Nevada law, then it had over twenty years to correct this "error" by amending the statute and/or inserting legislative commentary statting its disapproval of the judicial intrpretation of the statute. Presumably, the Nevada legislature took neither of these actions, since it surely would have been mentioned if it had.

My experience (at least in Ohio) has shown me that state legislatures are relatively quick to correct what they perceive as "incorrect" judicial interpretations of statutes. Thus, the fact that Nevada courts had been interpreting the statute in this way for so long, combined with a lack of legislative action to the contrary, leads to the conclusion that the statute should be applied as courts have been applying it, not as a judge believes it should be applied.

Frankly, I find Judge Kosinski's actions disturbing. Given his rationale, what is to prevent any federal court from deciding that a state supreme court's interpretaiton of a state statute is incorrect and, therefore, fundamentally altering the state's interpretation of its own statutes? If the defendant could not have been convicted under the federal interpretation of the state statute, then the defendant will get habeas relief regardless of how the state courts would have decided. This, in turn, will have the practical effect of forcing the state courts to bend their interpretation of state law to concur with the federal interpretation of state law, so the state convictions will not be vacated. This seems to be an obvious violation of the principals of federalism.

Thus, I agree with anyone who criticizes the Nevada Supreme Court's interpretation of the Nevada statute, but I must disagree with those who excuse Judge Kosinski's actions because of their criticism of the Nevada court.
2.3.2006 9:29am
farmer56 (mail):
Why is this a 'federal' case? I See contract law. I 'the bank' agree to pay off your debts to a defined amount.

So the bank got scammed? So? happens every day. A person you do business with, sign a contract, submit a pre-payment.....One party or the other LIED! Duh. Three life sentences? This is law gone amuk.

The defendent defrauded the bank, by giving a false ID
The bank needs to file an errors and ommissions claim on their insurance carrier. The bank did not do their job. Thats why you buy errors and ommissions insurance. The deffendent is liable for all the money they took from the bank. Pay it back or go to jail, but not for life.

And. To whoever said it 'the Neveda legislature should just clarify the law' That dont work. The people that make the laws are loth to clean up their own messes. Better to have the unelected and unaccountable (judges) pick uo the pieces.
2.3.2006 9:32am
Public_Defender:
Juan Notwithstanding the Volokh writes:
Fudging. The Supreme Court would never say that a state supreme court was wrong about its interpretation of state law. . . .
Remember Bush v. Gore?

And Blakely says that judges cannot take away decisions about the elements from juries.
2.3.2006 9:32am
Anderson (mail) (www):
The Supreme Court would never say that a state supreme court was wrong about its interpretation of state law

Which is why Al Gore is in his second term right now?

I do not believe, btw, that "deference" means what a lot of commenters are assuming it does. You don't have to accept the plain error of another court under "deference." Drew, way above, hit this on the head.
2.3.2006 9:34am
farmer56 (mail):
Gee I forgot the main point of the post. A judge looking at an appeal review 'thinks' the evidence for conviction is not convincing. Tough. If the Judge has evidence of a bad trial. violation of law. The ruling of the presiding judge is contrary to law. OK. Thinking the evidence is not conclusive? Huh? I thought that what the jury decided.
2.3.2006 9:39am
farmer56 (mail):
Ok.

I did not start this.

Please explain Bush v Gore. From the State supreme court of Florida. Where does the State Supreme Court of Florida get the power to order a state wide recount?

And? If they do not have that power...Why is SCOTUS wrong?
2.3.2006 9:43am
BobBarker:
I think this is inexcusably bad judging. I'm not sure why Kozinski thinks his definition of "credit' must trump what Nevada courts reasonably concluded it was.

He notes: "Credit" is further defined as "an arrangement or understanding with a person, firm, corporation, bank or depositary for the payment of a check or other instrument." Id. at 205.130(4).

Why would it be unreasonable/improper/wrong to conclude that the arrangement between the bank and the lady defined the outer bounds of that credit?

Kozinski also seems to know in his heart what the purpose of the statute was--to protect merchants. This colors his decision improperly. It is clear that were was sufficient evidence to convict if one believed the credit was the agreement between the lady and the bank. Overdrawing your account may be breach of contract if inadvertent; doing some purposefully could easily be fraud.

Disapointing.
2.3.2006 9:58am
Drive By Poster:
Fudging. @Jack John: Why are you talking about certifying? This is a habeas case, not a diversity-jurisdiction case. The question only requires a court to interpret extant authoritative legal text, something the circuit courts are perfectly capable of doing.

The Second Circuit has had some interesting case law in a similar context, but going the other way — the New York state courts prettly clearly misread the state murder statutes to hold that shooting someone in the head point blank can't show the mental state of recklessness, only intentionality. But the Second Circuit still gave effect to this reading of state law and granted a convicted murderer habeas relief on this basis. (It's actually more complex, and the state law may not have been clear, but this is the jist of it.)

Anyway, great post, Orin.
2.3.2006 9:59am
OrinKerr:
Public Defender,

I don't think I understand your Blakely argument. Among other things, doesn't that argument require Blakley to be retroactive? The Ninth Circuit has already held to the contrary, right?
2.3.2006 10:02am
Public_Defender:
Professor Kerr,

I see the retroactivity point, but Blakely reiterated the long-standing rule that only a jury could determine the elements of an offense and that the standard was beyond a reasonable doubt.

Applying that doctrine to define "maximum" sentence as the sentence permitted without additional fact finding was new. Applying it to express statutory elements was nothing new.

Most of Blakely was unremarkable. For example, in state court, I cite it the way I used to cite Winship for reasonable doubt.

Your question deserves a more thorough answer than I gave, so I apologize for the truncated response.
2.3.2006 10:28am
Hans Bader (mail):
I agree with Greedy Clerk about this case. Regrettably, Judge Kozinski was wrong to ignore the state supreme court's construction of the statute.
2.3.2006 10:48am
Juan Notwithstanding the Volokh:
Perhaps those here remember Bush v. Gore better than I do, but as I recall the upshot was not that the Florida Supreme Court was wrong about Florida law, but that the Florida Supreme Court's interpretation of Florida law, or maybe it was the Florida Supreme Court's changing interpretation of Florida law, violated the Equal Protection clause.

In any case, if you're relying on Bush v. Gore for precedent, you know you're on the losing side of the argument.
2.3.2006 11:18am
Porkchop (mail):
I lean toward thinking that this case was wrongly decided, but on an entirely different basis. Even if the Nevada Supreme Court was wrong to ignore the "credit" language in the statute, it seems to me that the defendant didn't have "credit" at all. The bank had extended "credit" to a fictional person, not the defendant, as a result of the defendant's false representations as to her identity. It seems clear that everyone accepts the position that if the bank had known her true identity, it wouldn't have opened the account, made the loan, or issued the check guarantee card.
2.3.2006 11:36am
Ira B. Matetsky (mail):
A few miscellaneous additions to an interesting post and comment thread:

1. Judge Kozinski is fully capable of reaching inequitable results despite the sympathy claims of a case. In fact, in at least one interview with an ex-clerk, he actually brags about this fact, stressing that reaching the correct ex-ante result breeds greater rule-orientation and stability in the legal system in the long run.

2. Kozinski would be quite pleased (actually, he probably will read this at some point, so perhaps he is quite pleased) at 2L's recollection of his contracts opinion criticizing but following Judge Traynor. He gave a speech once specifically stating that he structured that opinion in a way that would get it reprinted in law school casebooks and thus influence the next generation of lawyers.

3. With regard to the overturning of the Nevada criminal conviction at issue here, I don't have much to add to the comments except to note that no one has picked up on the last footnote of the Ninth Circuit opinion, which states that "[b]ecause we are granting Goldyn's habeas petition for the reasons set forth above, we do not consider her numerous other claims, some of which raise similarly significant issues that cast further doubt on the state's commitment to the pursuit of justice in this case." Does anyone know what other claims are there alluded to?
2.3.2006 11:46am
Justice Fuller:
Judge Kozinski is fully capable of reaching inequitable results despite the sympathy claims of a case.

Capable, yes. But clerks also acknowledge that Kozinski sometimes gets really worked up about a case, and that no precedent or fact will get in the way of him reaching the result he wants in those case.
2.3.2006 12:17pm
december (mail):
BobBarker asks, "Why would it be unreasonable/improper/wrong to conclude that the arrangement between the bank and the lady defined the outer bounds of that credit?"

I don't know whether it's wrong, but it's at least questionable. Consider a simpler example. Your son borrows $10,000 from a bank. He's not credit-worthy, so you co-sign the loan. If he fails to repay the loan, you're liable to the bank for his debt.

Depending on what happens, you may wind up lending money to your son. If you are called upon by the bank to repay your son's loan, he would then owe you the $10,000. In effect, you would have lent him $10,000.

However, neither you nor your son viewed this transaction as a loan. You could have directly lent him $10,000 without using any bank, but you didn't do so. You agreed only to a contingent arrangement. You would generally viewed as a guarantor of a loan, rather than as a lender.

One might respond that in the actual case, a line of credit is also contingent, since it may or may not be utilized by the lender. The difference is that, unlike the guarantee, the line of credit is is supposed to be utilized to borrow money. That's it's purpose.

Also, condider the example of surety bonds. A surety bond guarantees something, e.g., completion of a contracting project. If the project isn't completed, the Surety (the party that provided the bond) bears the cost of completing the project. However, that cost is fully recoverable from the contractor. So, there is a contingent circumstance where the Surety may have more-or-less provided credit to the contractor.

Neverthless, Surety is regulated as a type of insurance not banking. If the contractor fails to complete the project and winds up owing money to the Surety, the event is called a "default", not a "loan."
2.3.2006 12:18pm
farmer56 (mail):
Porkchop

trying to figure out your logic. If I get a loan at a car dealership and use a fake name. The dealership has no responsibility to do a cursurary check to find out if I am who I said I am? And? After time I never make a payment. The govt gets to throw me in jail for life, because I lied?

We need to get real busy building lots and lots of jails to put away for life ALL of the people lying about their name. We can start with the Illeagals from Mexico.
2.3.2006 12:27pm
Gordon:
Since lots of people write checks with insufficient funds when they have a line of credit on their account and that is perfectly legal activity, it has to be a violation of due process to convict her for that same act.
2.3.2006 1:23pm
Porkchop (mail):
farmer56 wrote:


trying to figure out your logic. If I get a loan at a car dealership and use a fake name. The dealership has no responsibility to do a cursurary check to find out if I am who I said I am? And? After time I never make a payment. The govt gets to throw me in jail for life, because I lied?

Okay, let's start at the beginning. The defendant committed a fraud. In reliance on her fraudulent representations, it extended credit to a person that it thought was someone else.

Absent things like Bank Secrecy Act (anti-moneylaundering) requirements, banks, like everyone else, are allowed to presume that the person they are dealing with are telling the truth about the transaction they are entering into.

Under your reasoning, it appears that it would be a defense to any crime that relied on a fraudulent representation of identity if the victim didn't check the perpetrator's story out beore being victimized. That won't fly. So, in your car dealership example, if you were subject to a three-strikes sentencing statute, yes, you might be going to prison for life. You used a false identity to obtain property of another under a loan or installment payment arrangement. Then you didn't pay for the property you obtained. It sounds like fraud and theft to me. It is certainly different than borrowing money under your real name and defaulting on the debt. The fact that you used a false name is a basis to conclude that you intended to deceive the dealer into giving you possession of the car. A jury could reasonably conclude that the subsequent failure to make payments was part of a scheme to defraud the dealer.

Now, if you want to debate whether habitual offender statutes are really a good idea, we can have that discussion. The question under this thread, however, is whether Judge Kozinski's decision was correct. I'd say that his analysis of what "credit" means is probably right, but I don't think that the grant of credit was intended for the person who took advantage of it. I would probably have brought a different charge if I had been the prosecutor, say, bank fraud (using federal law), but the case still fits (a bity awkwardly) under the bad check statute.
2.3.2006 1:27pm
Mel (mail):
First of all, did the Nevada Supreme Court rely on Garnick in affirming Goldyn's conviction? I don't think we can conclude that the prosecutor's "presumably" relied on the Nevada Supreme Court's interpretation of the statute in Garnick when we're reviewing something under 28 USC 2254(d) -- I think the State must actually rely before we can defer to that reliance. Yes?

Although of course state court decisions -- including state court interpretations of state statutes -- are entitled to some deference, there has to be some sort of interpretation to which to defer. We're giving the Court a great deal of leeway by even calling this passage from Garnick an interpretation of the statute. Surely the state court must do more than simply mention a statute and sloppily misstate its elements to truly interpret a statute?

More fundamentally, even if we accept this as an interpretation, query whether the Nevada Supreme Court may, under the Nevada Constitution, write elements out of a criminal statute through judicial fiat? In Nevada, as in the federal system, the power to amend a statute is the exclusive province of the legislature. State v. Dickerson, 33 Nev. 540, 569, 113 P. 105, 114 (1910).
2.3.2006 1:42pm
Francis (mail):
The law is underdetermined.

It appears to me that Judge K. was correct in finding that the Nevada Sup. Ct. misread a statute in upholding the conviction.

So, is federal relief available? As this thread establishes, the answer is unclear.

On the one hand, there is a strong (and meritorious) federal court policy of deference to state courts of their interpretation of state law.

On the other hand, there is a strong (and meritorious) federal court policy -- dating back to the Reconstruction Era -- of federal courts overturning state court decisions that are clearly erroneous.

So the question then becomes how gross the state error must be, and what the nature of the state error must be, before the federal courts will intervene. (There is a related question of what provision of the Constitution has been violated. But since even Scalia admits that he is a realist at the end of the day, a federal judge could pretty easily hang his decision on either the 5th or 14th amendment.) Since it is impossible in advance to determine all the possible ways in which a state will mistreat its own citizens, it is impossible to develop a bright-line rule. So, this is an area where federal law is underdetermined.

As a result, sophisticated attorneys, like those present on this thread, can legitimately argue at length and without clear resolution whether the sentence was properly expunged.
2.3.2006 2:00pm
ThomasL (mail):
I think the mentions of Trident and of Bush v. Gore are right on, but my reasoning is a bit different from some of the others in the thread. Briefly, it seems to me that those with Kozinski's interpretive methodology are committed to the idea that there's a right way and a wrong way to interpret statutes, and that the range of reasonable interpretations is narrower than those with, say, a more purposivist approach.

So, no, I don't think Kozinskis fudged.
2.3.2006 2:33pm
Former 3d Circuit Clerk (mail):
I am a former 3d Circuit clerk and am now a criminal defense attorney. I think Kozinski violated the first rule of federalism in telling the Nevada courts that their interpretation of the state penal statute was wrong. The claim before him was the sufficiency of the evidence -- viewed through the AEDPA prism. It was NOT whether the state statute defined the offense clearly enough for people like the defendant. Federal judges are supposed to interpret the law regardless of how distasteful the outcome is. In this case, the 9th Circuit overstepped its bounds and ignored AEDPA.
2.3.2006 2:37pm
La428 (mail):
Judge K fudged. As a federal judge, he was bound by the Nevada Supreme Court's interpretation of Nevada law. While it makes him more human, it also gives license to the Reinhardts of the federal judicial world.

They should have certified the Nevada state law interpretation question to the Nevada Supreme Court. See: Nev.R.A.P. Rule 5(a). And that's not to say that the certification order shouldn't have contained language such as "Are you really serious about this interpretation, because it makes no sense?". Then, if the Nev. Sup. Ct. said "No, we goofed", the defendant gets relief. On the other hand, if the Nev. Sup. Ct. said "Yes, we mean it", Judge K could say the interpretation was some kind of Due Process violation. But either way, it would avoid a federal court "overruling" a state supreme court's interpretation of that state's law.
2.3.2006 2:39pm
eddie (mail):
Reg:

Upon what principle do you think a life sentence is appropriate for writing bad checks?

Also, the issue here is not whether this person committed "a" crime, but did she commit the crime for which she was indicted.

Porkchop:

If the "credit" is fictitious, then so are the checks and so is the account in and of itself. The crime she was convicted for though was for writing a real check, from a real account, with knowledge that there weren't sufficient funds or credit.

You can't have it both ways.
2.3.2006 2:41pm
farmer56 (mail):
Porkchop'


The person passed a bad check. Not a point of question. Trow them in jail for life? Are you serious?

The bank is the one that issued the check card, issued the line of credit. You have never, ever been a store owner, that is obvious. A store owner assumes that a gaurentee from a bank is just that. So the bank not doing its job gets a person tossed in jail for life? OK say it out loud. Bad check, jail for life, Take a shot at the president, parole. Say it out loud
2.3.2006 2:44pm
Porkchop (mail):
Eddie wrote:


If the "credit" is fictitious, then so are the checks and so is the account in and of itself. The crime she was convicted for though was for writing a real check, from a real account, with knowledge that there weren't sufficient funds or credit.

You can't have it both ways.

The credit is not fictitious, but it was not the defendant's credit, it was a fictitious person's credit. She wrote real checks on a real account that was set up to grant credit to someone other than her.
2.3.2006 2:47pm
Rob72 (www):
When a sentence of five life terms hinges on a distinction between credit and funds, it seems to me that the most just action would be to act with an utmost of caution.

I think Kozinski did absolutely the right thing, even if it does clash with my preference for federalism and states rights. I personally think that Kozinski's decision sounds more consistent with the statute, while the Nev. Sup. Ct. reading was more consistent with an interpretation of a statute than the statute itself.
2.3.2006 2:50pm
AF:
Here's my view:

Kozinski didn't so much fudge, as completely overlook the principle that the sufficiency of the evidence is measured in relation to state law as interpreted by state courts. Had he recalled this principle,
he would have had to address the point brought up by Drew S. and others: whether the state court's interpretation of the statutory text was so unreasonable as to violate Due Process. Had he addressed this question, I think he would have, or at least should have, concluded that the state court's interpretation did not violate Due Process, and therefore denied the petition.
2.3.2006 2:54pm
Nunzio (mail):
AF:

Koz' overlooking is the fudging. As judged by the intelligent comments from all sides on this issue, a lot of people think Kozinski should have at least referenced the Garland decision. But if he had he would have had to do the following:

(1) Said that Garland wasn't giving an authoritative interpretation to the statute.

(2) To the extent the Nevada Supreme Court here was relying on Garland's interpretation without actually looking at the case (just the headnotes, which is all they probably did), the Nevada Supreme Court was wrong.

(3) In fact, they were so wrong that they actually retroactively changed the definition of the statute, violating Defendant's due process right.

(4) Even though the Defendant here didn't petition the Nevada Supreme Court to reconsider its interpretation of the statute in light of the fact that this interpretation violated due process (City of Bouie; United States v. Marks) and so waived the right to raise it now on habeas review, I'll decide the issue anyway.

Instead, he said:

(1) statute says without credit.

(2) defendant had "check guarantee card."

(3) check guarantee card, as a matter of Nevada law is the same as credit (even though the Nevada Supreme Court here said "funds" and relied on a 40 year old case that said funds; the idiots didn't really read the statute).

(4) Since Defendant had credit, there was no evidence, much less constitutionally required sufficiency of evidence (Jackson v. Virginia) to convict.
2.3.2006 3:47pm
ex-Fed Lawyer (mail):
I think Kozinski was right. The Nevada Supreme Court's prior decision in Garnick did not hold that the word "credit" appearing in the statute is a nullity and that you can violate the bad check statute if you have insufficient "funds" even if you have sufficient "credit." So, he was obliged to follow the plain meaning of the text of the statute, which he did, and under that basis, no crime had occurred.
2.3.2006 4:41pm
habeas law clerk:
Given that the result in this case is debatable (as seen by the comments here), the amazing thing about K's opinion is his use of such strong language slapping down the Nevada state courts. I mean, K must know that there's at least a whiff of a federalism issue here (deferring to a state court's interpretation of its own law).

Why not just reach the result, using restrained language, and leave to others to speculate about the "irrational" state judicial system?
2.3.2006 4:47pm
Davide:
It seems plain that not referring to Garnick was a poor tactical decision by Kozinski and not really defensible. Remember, he said "no rational judicial system would have upheld her conviction." While there are good arguments to DISTINGUISH Garnick, I think there are no good arguments for having failed to mention it, particularly given that the interpretation written there would have upheld the conviction, and that such an intepretation, no matter the distinction, would at least have been "rational." And I also don't see how Kozinski could have said no rational judicial system would have upheld a conviction without at least mentioning this case and trying to show how Garnick didn't lead to that result. If it does -- and it likely did -- then K owes us an explanation of how that isn't a rational result. It was certainly easier for him to do this on a tabula rasa rather than admitting there was some (adverse) writing already present.
So, he's either fudging purposely or not citing the right law inadvertently. Either way, it's not a good decision. It comes across as a little less than candid. And it is interesting how quickly people are rushing to K's defense -- likely because they admire the result. I wonder if they'd be as accomodating in other contexts.
2.3.2006 4:55pm
Porkchop (mail):
farmer 56 wrote:


The person passed a bad check. Not a point of question. Trow them in jail for life? Are you serious?

Farmer -- That's a different conversation. The question is not whether we like three-strikes laws. The question is whether the defendant committed a crime. The U.S. Supreme Court has already said that three-strikes laws are not unconstitutional. If you don't like them, talk to your state legislator. Heck, I'll even sign your petition.

In the meantime, on the issue under discussion, the defendant obtained "credit" under false pretenses. (We call that "bank fraud." It's a violation of both federal and state law.) Even agreeing that the check guarantee card was "credit," she's still not off the hook. She had no legal right to use the fraudulently obtained "credit." Go directly to jail. Do not pass Go, Do not collect $200. Count yourself lucky to be on parole.
2.3.2006 5:08pm
ex-Fed Lawyer (mail):
By the way, as Public Defender noted, the US Supreme Court held a long time ago (In re Winship) that it is a violation of a defendant's 14th Amendment's Due Process rights for a jury to convict the defendant when there was an absence of evidence on one of the elements of the offense. Here, that is essentially what Kozinski &two other 9th Circuit judges found. I think the Nevada courts were either being sloppy, or were just unsympathetic to the claims of a career criminal who may very well have intended to defraud her bank (if not the merchants who received her check).
2.3.2006 5:12pm
Starlight (mail):
As someone who has drafted statutes, when a narrow word like "funds" is available (and well known to those familiar with banking terminology) and the drafter uses a broader list of words, such as "money, property or credit," two of which terms cannot be mere synonyms for "funds," they MUST have meant to cover more. Isn't a rule of statutory construction everywhere that "all the words in a statute must be given effect?"

Kozinski was correct to go to the plain words of the statute as written by the Legislature and ignore the sloppy decision of the state court.
2.3.2006 5:18pm
Starlight (mail):
As someone who has drafted statutes, when a narrow word like "funds" is available (and well known to those familiar with banking terminology) and the drafter uses a broader list of words, such as "money, property or credit," two of which terms cannot be mere synonyms for "funds," they MUST have meant to cover more. Isn't a rule of statutory construction everywhere that "all the words in a statute must be given effect?"

Kozinski was correct to go to the plain words of the statute as written by the Legislature and ignore the sloppy decision of the state court.
2.3.2006 5:19pm
Edward A. Hoffman (mail):
I just want to note a couple of peripheral issues:

First, I'm surprised that so many people are calling the sentence cruel and unusual given that we don't know how much money Goldyn got from the bank. All we know is that Goldyn wrote a small number of bad checks. This does not mean that only a small amount of money was involved. For all we know the checks totaled millions of dollars. Those who say the sentence is cruel and unusual must believe -- as I do -- that sentences should be proportionate to the crime. Leaving aside for the moment the Supreme Court's rejection of this premise, it is not possible to say whether a sentence is proportionate to an offense unless you know the magnitude of both. My sense is that only modest sums were involved and that the sentence was vastly out of proportion to the crime, but I am not willing to presume that this is the case.

Second, the reason Judge Kozinski didn't cite Garnick may be that neither side relied on it in their briefs. If neither side thinks a particular case controls there is no reason for a court to go out of its way to explain why the parties are right. I doubt that the state's attorneys would overlook Garnick, but if they agreed with several commentators here that it does not control then they may have left it out.
If other readers have reviewed the briefs, perhaps they can tell us how much money was involved and whether the briefs relied upon Garnick.
2.3.2006 5:22pm
ex-Fed Lawyer (mail):
The one part of Kozinski's opinion that is plainly wrong is the first sentence: "Petitioner spent 12 years in prison for conduct that is not a crime." I think her conduct in opening an account at a credit union using a false identity is likely a crime, and a jury could infer that she intended to defraud the bank by doing so. She just wasn't charged with that crime.
2.3.2006 5:25pm
Ron Collins (mail) (www):
I read with interest Judge Kozinski's opinion in Goldyn v. Hayes and Orrin Kerr's commentary on it, which at first blush struck me as persuasive . . . or potentially so. But the more I looked into this, the more doubts I had about Kerr's take on things. Here's why:

The petitioner Joni Goldyn raised a Jackson v. Virginia challenge, namely, the sufficiency of the evidence as to an element of the offense. The Ninth Circuit held that the state had failed to satisfy the element of insufficient funds because funds as defined by statutes are money, credit or property.

Contrary to what Kerr argues, the Nevada Supreme Court did not hold that credit to cover checks is not sufficient. In the Goldyn case, in fact, it recognized that she had a $500 line of credit but thought it had been exhausted. If the court had really held that credit doesn't count, as Kerr suggests, it could have just said that: One needs cash, not credit, to cover checks. Of course, that would make criminals out of a lot of people who rely on their line of credit to cover their checks.

As I see it, the Ninth Circuit's disagreement with the Nevada Supreme Court wasn't at all what Kerr argues; it was about whether or not Goldyn had credit to cover the checks. The Kozinski opinion pointed out that the state's own witness had said the bank would keep covering checks so long as she had the check-guarantee card, even though her credit "limit" was exceeded. The Ninth Circuit opinion per Kozinski cited testimony on that score (see below). Kerr's post about the Garnick case and what it supposedly held is entirely beside the point.

BTW: There's a good discussion of the credit issue in the comments to Kerr's earlier post: http://volokh.com/posts/1138840912.shtml

Granted, the state court does have the ultimate say about what the state law is. And if the Nevada Supreme Court had really held, as Kerr suggests (that credit is read out of the statute), the Ninth Circuit would be bound by that. But here the state high court justices clearly didn't. They accepted the fact that credit could cover checks -- which is why they referred to her $500 line of credit -- but overlooked the evidence that the bank would keep extending credit even after she exceeded the $500 limit.

In all of this it is instructive to review what was said in open court by the Nevada Federal Credit Union's collection officer, which was quoted at length in Judge Kozinski's opinion:

Although the state court recognized that Goldyn's check
guarantee card "obligated" NFCU to pay Goldyn's checks, it
apparently failed to recognize that obligation as a form of
credit. Instead, the state court focused on Goldyn's $500
credit limit, even though undisputed evidence in the record
demonstrates that the $500 "limit" did not cap the bank's obligations
under the check guarantee card. At trial, NFCU's collection
officer explained this very clearly:
Q: The five hundred dollar line of credit was, you
previously testified, attached to [Goldyn's] checking
A: They could.
Q: How?
A: By exceeding the amount of five hundred dollars
and continue [sic] to write checks.
The state court overlooked the fact that, by giving Goldyn a
check guarantee card, NFCU had obligated itself to continue
doling out money to cover her checks, even after that so-called
limit was surpassed account. Is that right?
A: That's correct.
Q: And is that a type of overdraft protection?
A: Yes, it is.
Q: And could a member extend the credit line
beyond five hundred dollars without approval from
the bank?

In short, Kozinski and his colleagues got it right both as to the law of the case and its justice. In that respect they rightfully refused to sanction a Kafkian brand of "justice."

Ron Collins
2.3.2006 5:36pm
Public_Defender:
Edward A. Hoffman is right to question what was argued in the briefs Kozinski read. I have litigated against many prosecutors and AG's who just don't care about their cases. In some prosecutors' offices, the appeals section is where career burn-outs go. (This is NOT universally true.) Also, since appellate prosecutors so rarely lose, they sometimes become careless.

If the AGs in this case didn't care, they might not have made much of a record. I've had habeas cases where AG laziness has given me total control of the record. In one case, the AG didn't realize this until he lost. At oral argument, the federal appeals court judges asked me how anyone could ever have ruled against my client's position because they didn't even see the argument against me. That's a great question to get at oral argument, especially when you have lost at every previous step.

The strength of the AG's case should have been a state trial court opinion he had not cited. I had argued that the state appellate opinion effectively voided the trial court opinion, and the AG never contested that. The distinction was important because the appellate opinion contained incontestably wrong legal analysis, where the state trial court at least come close to following US Supreme Court precedent

After the AG lost the panel decision, he suddenly re-discovered the state trial court opinion. But that was way too late to bring in the new arguments.

I bought that volume of the Federal Reporter and keep it on my shelf.

In another case, the AG didn't even bother to respond to the claim I had made. Like the state court, he responded to a different claim and never once cited the Supreme Court case I expressly based all my arguments on since state court. The panel scolded both the state court and the AG for failing to address my argument. (At argument, they said our briefs were like ships passing in the night.) Unfortunately for my client, the panel then came up with its own not-so-stupid reason why my client should lose.

But back to the point, the quality of prosecutorial appellate advocacy (like that of defense appellate advocacy) is uneven. Don't criticize judges for missing arguments unless you know the parties made them.

In the Goldyn case, I'm sorry, but I don't get the argument that Goldyn was guilty of passing a bad check. Fraud on the bank, yes, but passing a bad check, no.

P.S. The oral argument is here.
2.3.2006 6:05pm
Public_Defender:
At argument, Goldyn's counsel said that the bank used the term, "advancing the line of credit" when the bank covered a check using the check guarantee card. It's hard to argue she didn't have "credit" when the bank expressly said she did.
2.3.2006 6:19pm
Edward A. Hoffman (mail):
I'm listening to the argument and it seems the amount at issue was about $560. Based on that information, I consider the resulting sentence cruel and unusual.
2.3.2006 8:13pm
James B. Shearer:
Public_Defender, it doesn't matter what the bank called it internally, the issue is whether a check guarantee card is the equivalent of a credit line under Nevada law. Apparently the Nevada courts ruled it wasn't and Kozinki does not give a convincing argument that they were wrong (much less completely unreasonable) in so ruling.
2.3.2006 9:40pm
Bob Loblaw (www):
Thank god for Kozinski.
2.3.2006 10:12pm
Edward A. Hoffman (mail):
To James B. Shearer:

The opinion doesn't say the check card was equivalent to a credit line, only that it was either an outright gift or a form of credit. If you think it was something else, perhaps you could explain what it was.

Since the bank was advancing the funds pursuant to its contractual obligation it did so expecting either to be repaid (in which case it was extending credit to Goldyn) or, implausibly, not to be repaid (in which case it was a gift). Either way, it is completely unreasonable to conclude that Goldyn had neither sufficient funds nor sufficient credit to make good on the checks -- which, after all, the bank did honor.

Giving Goldyn a check card was a really bad decision for the bank, and it resulted in the bank becoming an unsecured creditor on the checks it paid because of the card. But the fact is that the bank got itself into that position. Since being an unsecured debtor isn't a crime, Goldyn's conviction was manifestly unjust.

As the opinion points out, the state probably could have won a conviction for defauding the bank, but that is not what it charged. Due process requires prosecutors to give defendants notice of the charges against them; having failed to notify Goldyn she might be convicted of fraud the state cannot claim the conviction was justified on that basis.
2.3.2006 10:16pm
David M. Nieporent (www):
Public_Defender, it doesn't matter what the bank called it internally, the issue is whether a check guarantee card is the equivalent of a credit line under Nevada law.
Seems to me that whether she had credit is a question of fact.

Tangent:
I'm listening to the argument and it seems the amount at issue was about $560. Based on that information, I consider the resulting sentence cruel and unusual.
Even assuming arguendo that there's a proportionality element to the eighth amendment, the problem is that the sentence was not for passing bad checks. The sentence was for passing bad checks after having already committed multiple felonies before.

People arguing against three strikes laws always want to focus only on the final offense. But nobody argues that the final offense justifies the extensive sentence; if it did, one wouldn't need a three-strikes law at all. One could simply sentence on the final offense. The point is that the offenses are cumulative. A life sentence for several counts of fraud totalling $560 dollars is disproportionate. But a life sentence for several counts of fraud after having been convicted of multiple fraud felonies is not.
2.3.2006 10:38pm
James B. Shearer:
Edward A. Hoffman, the check guarantee card could be considered an agreement between the bank and the merchant to insure against loss from accepting the customer's check (note there are third party services which offer such insurance).

Alternatively the check guarantee card could be considered to be an agreement between the bank and the merchant for the bank to purchase the check from the merchant at face value (again there are third party services which purchase receivables).

In either case the payment to the merchant would be neither a gift or a loan to the customer although the bank might have a claim against the customer for the amount it lost. The merchant is being paid although the check is bad.

Suppose the merchant had waived the guarantee and the check had bounced. Would you still contend the customer was not guilty?

Now possibly because of the specific facts of this case these arguments are not convincing. However Kozinski does not provide a fact specific argument showing this.

Consider a different hypothetical case. The bank mistakenly deposits $1000000 into your account. According to Kozinski this must be either a gift or a loan. But some courts have ruled it is neither and if you withdraw the money knowing you are not entitled to it you can be convicted of theft. So I find Kozinski's claim that it obviously is either a gift or a loan unconvincing.
2.3.2006 11:57pm
David M. Nieporent (www):
Suppose the merchant had waived the guarantee and the check had bounced. Would you still contend the customer was not guilty?
Absolutely. The issue, based on the statute, is whether the customer had sufficient credit. If for some inexplicable reason the merchant told the bank, "I'm depositing this check, but don't pay me," that wouldn't change the fact that the customer had sufficient credit to cover the check at the time the customer wrote the check.

Consider a different hypothetical case. The bank mistakenly deposits $1000000 into your account. According to Kozinski this must be either a gift or a loan.
No. Kozinski didn't say anything of the kind. I'm sure that, according to Kozinski, that would simply be a third category: a mistake. But the situation we're discussing isn't a mistake, and nobody contended it was, so Kozinski felt no need to address that possibility. It's an intentional payment by the bank, based on a pre-arranged agreement between the customer and the bank.
2.4.2006 1:36am
Jack John (mail):
@Jack John: Why are you talking about certifying?

I said K could certify. I also said he didn't have to. So what is the point of your post?
2.4.2006 1:55am
Public_Defender:
If a bank pays money with the expectation that it will be repayed with interest, that's credit. That's what happened here.

. . . the check guarantee card could be considered an agreement between the bank and the merchant to insure against loss from accepting the customer's check (note there are third party services which offer such insurance).

Alternatively the check guarantee card could be considered to be an agreement between the bank and the merchant for the bank to purchase the check from the merchant at face value (again there are third party services which purchase receivables).
"Could be considered" isn't good enough for criminal law. Ties go to the defendant. Yes, reviews of jury decisions are supposed to be deferential, but the jury is supposed to resolve any factual ambiguities in favor of the defendant, and the judge is supposed to resolve all legal ambiguities in favor of the defendant.

The problem with the pro-prosecution posts is that they are trying to shoe-horn the facts of this case into the statute Goldyn was charged with. Goldyn probably committed fraud on the bank, but she didn't pass bad checks. Don't blame Judge Kozinski for the trial prosecutor's screw-up.

Looking at this from a gut level, Goldyn didn't really get away with anything. Yes, she got her conviction vacated, but only after she spent 12 years in prison (think about all you've done in the last 12 years of your life). She also still has two strikes, so she faces the possibility of massive punishment for any other offense.

Even though Kozinski vacated the conviction, the State of Nevada extracted its pound of flesh from Ms. Goldyn.
2.4.2006 8:59am
James B. Shearer:
Public_Defender, the bank may make good on its check guarantees with the hope it will be repaid but I am not convinced it expects to be repaid. In this case since the bank tried to cancel the card I doubt it was confident of repayment.

There is an argument that check guarantees are not loans, Kozinski's opinion would be more convincing if he admitted this and explained why in this particular case the check guarantee should be treated as a loan. Instead he comes up with some bogus arguments and then goes off on a rant against the Nevada courts.

David M. Nieporent, the merchant is not telling the bank not to pay the check, the merchant is just failing to invoke the guarantee by for example not writing the number of the check guarantee card on the check. The agreement to cover the check is not between the bank and the customer, it is between the bank and the merchant. If giving the customer a check guarantee card is the same as setting up a loan agreement then under various truth-in-lending laws the bank would be obligated to disclose the terms of the loan would it not?

Nobody argued the money was a gift either, Kozinski set up a false dichotomy between gift and loan to argue it must have been a loan since it wasn't a gift. But the existence of a third category, mistake, shows Kozinski's argument is fallacious even if his conclusion is correct. By the way there are more categories, if a teller embezzles from a customer and the bank repays the customer this is not a gift, loan or mistake.
2.4.2006 4:51pm
A. Prosecutor (mail):
Since I haven't read the decisions in this case, I don't know enough to decide whether I feel K fudged on this one with respect to ignoring a state supreme court's interpretation of state law. However, after listening to the oral argument I do have some opinions on some other issues.

1. First, I tend to agree with you Porkchop that the defendant's actions here could arguably be considered criminal for the reason that she did not have sufficient credit to cover the checks because it wasn't her account, but rather that of a fictitious person whose name she made up. However, you also brought up the fact that a person who obtains credit under false pretenses is guilty of bank fraud. Looking at that claim, it's hard to argue that she didn't obtain the credit under the Nevada statute if you simultaneously claim she did receive credit under the bank fraud statute. I don't know if who the person is that actually received the credit needs to be consistent for the purposes of applying these two statutes, but it's food for thought. At any rate, this issue was not argued at oral argument and thus was irrelevant to the question of of habeas relief. Perhaps the prosecutor could have used it as his theory at trial, but that does not seem to be the case.

2. The main question was whether the check guarantee card operated as a line of credit such that it would preclude application of the statute. The issue really boils down to point of view. From an external point of view (that of the merchant) the card represented unlimited credit. From an internal point of view (the bank's) the card may or may not have represented a line of credit. In this case, K implicitly ruled that the external point of view was applicable, at least in the absence of any internal point of view evidence. He even asked if there were any details of the agreement between the bank and the defendant on the record. There was not, but perhaps if there was K might have switched to the internal point of view. The failure to include this evidence in the case, whether it was at the trial or appellate level, was an error.
2.4.2006 6:57pm
James B. Shearer:
A. Prosecutor, Kozinski's opinion does not argue that the prosecution failed to prove that the check guarantee was not credit within the meaning of the Nevada statue, it flatly asserts that the check guarantee was credit. So presumedly Kozinski is claiming the details of the agreement are irrelevant and it does not matter if the bank told the customer and she acknowledged in writing that the guarantee was not a line of credit, that she was not entitled to rely on it to write bad checks and that if the bank was forced to make good bad checks (in excess of the overdraft line of credit) she could be prosecuted for writing bad checks. In which case including the agreement in the record could not have helped.
2.4.2006 7:31pm
A. Prosecutor (mail):
I agree, James, that K probably would not have ruled any differently had the internal evidence of the agreement been in the record. However, he did ask about this evidence at oral argument and the answer was that there was none. My opinion that it was an error to not include this evidence in the record is based mainly on what the lawyers should have been thinking about when the record was being compiled. To not be prepared to discuss those pertinent facts at the time of oral argument, regardless of what hindsight tells us about how they would have been received, was a big oversight in my opinion.
2.4.2006 8:10pm
Porkchop (mail):
A Prosecutor wrote:


1. First, I tend to agree with you Porkchop that the defendant's actions here could arguably be considered criminal for the reason that she did not have sufficient credit to cover the checks because it wasn't her account, but rather that of a fictitious person whose name she made up. However, you also brought up the fact that a person who obtains credit under false pretenses is guilty of bank fraud. Looking at that claim, it's hard to argue that she didn't obtain the credit under the Nevada statute if you simultaneously claim she did receive credit under the bank fraud statute. I don't know if who the person is that actually received the credit needs to be consistent for the purposes of applying these two statutes, but it's food for thought. At any rate, this issue was not argued at oral argument and thus was irrelevant to the question of of habeas relief. Perhaps the prosecutor could have used it as his theory at trial, but that does not seem to be the case.

Allowing the defendant to argue that she "had credit," allows her to use her own fraud in her defense. I don't practice criminal law, but it seems unlikely to me that she would have been allowed to benefit from her own fraud if the issue had been brought up. The agreement to grant "credit" was void as to the defendant (but not her fictitious alter ego) by reason of her fraud. The bank may have been estopped as to third parties (i.e., the merchants who took the checks), because it gave the card to the defendant. But the fact that the card protected innocent third parties should not affect the relationship between the bank and the customer.

Actually, I think that the prosecutor could have defended the verdict on that basis during the appeal. Too bad he/she didn't think about it.
2.4.2006 11:52pm
Public_Defender:
I think we all agree Goldyn comitted fraud on the bank, but that's not what she was charged with. You can't sustain a conviction for one crime just because the facts show the defendant committed a different one.
2.5.2006 5:20am
Thomas Roland (mail):
"Thomas,

"I'm afraid I still don't understand: You accuse me of misrepresenting Garnick because you think the Nevada state prosecutors shouldn't have relied on it?

"In the meantime, you might want to keep this post in mind before you respond further."

Dr. Kerr, I'm sorry that you think I have accused you of being an immoral person. Democracy is an imperfect political system and language is an imperfect means of communication, but since they're both the best we have we just have to live with them. I'm not bothering to find and re-read my comment, but I'm certain that I accused you only of "misleading," not of "intentionally misleading." To be more precise, however, I certainly do accuse you of at least "sloppily misleading." Several other commenters have pointed out, I think quite accurately, and in different ways, that Garnick simply has, and never had, any relevance to this case. I suspect that no one in the Nevada legal system or the federal system ever thought so, either. You seem to be almost unique in thinking--or at least saying--that Garnick ever had anything to do with Goldyn or could possibly be twisted into having anything to do with Goldyn.

No, I don't accuse you of misrepresenting Garnick "because the ... prosecutors shouldn't have relied on it." Now you are misrepresenting what I said, whether sloppily, maliciously, or in some other way I have no way of knowing. Assuming that your statement was made in good faith, I'm left with the inescapable conclusion that I should not in the future rely on your ability to engage in critical legal or logical analysis or on your ability to report facts accurately.
2.5.2006 3:05pm
Public_Defender:
Mr. Roland,
I agree that Garnick has nothing to do with this case, but saying that Professor Kerr is "misleading" people is fightin' words for lawyers. You can say he is wrong (and I agree that Kerr is wronf about Garnick, but I don't see any evidence that he was trying to deceive us.

If he wanted to mislead, he would have made his point and closed comments. By opening comments, he invited everyone reading his post to poke holes in his theory. To me, that sounds like someone trying to figure out the truth.
2.5.2006 4:03pm
OrinKerr:
Thomas,

Let me try one more time. If you listened to the oral argument and read the opinions in Goldyn -- which I trust you did --it is clear that the information in Goldyn was filed tracking the precise language of Garnick, and that the Nevada Supreme Court applied the Garnick test in affirming Goldyn's conviction. You state that you "suspect" that no one in Nevada was following Garnick, but this suspicion seems quite at odds with the fact that the case was charged, the jury was intructed, and the conviction affirmed using the precise language of the Garnick misreading of the statute.

In light of that, can you please explain why you think the Nevada prosecutors (at the trial level) and courts (at the appellate level) all followed the Garnick misreading exactly, and yet were not actually aware of Garnick? That seems possible, but quite unlikely. The way I see it, the most likely explanation is that the case was charged and the conviction affirmed in reliance on Garnick. I am certainly not defending this practice; I disapprove of it on a number of fronts. But as best I can tell, that's what happened. I would like to hear your explanation of why you disagree.
2.5.2006 5:01pm
Public_Defender:
Professor Kerr:

What the prosecutors and state courts did with Garnick is roughly the equivalent of reading the CliffsNotes without reading the original book. They took a few sentences of the opinion out of context and failed to look at the underlying statute.

In a case of statutory interpretation, there is no excuse for basing your argument on a court opinion that does not address the issue of your case. Garnick never discussed the role of credit, so both the prosecutor and Nevada state courts were stupid and lazy for relying on it.

Kozinski did what the state courts should have done. He based his opinion on the text of the statute, not on misleading CliffsNotes.
2.6.2006 4:58am
Grace Suarez (mail) (www):
It's important to remember that the defendant was not convicted of defrauding the bank (she probably had done that, but that' a different crime). The named victims were the people to whom she wrote checks (" ... the state has the responsibility of charging her with the right crime--fraud against the bank, not writing bad checks"). The state court's interpretation of the statute left out an element (the lack of credit) and therefore was unreasonable. Kozinski got it perfectly right.
2.6.2006 1:59pm
S.W. Ross (mail):
Professor Kerr:

As you yourself posted earlier, the language of both the Cases is simmilar, but not exact (or precise). That being said, without anyone stating they are referencing Garnick, you are just making assumptions. By doing that you also are suspecting that they are in fact using Garnick as a reference. It would seem to me that the opinions of the subsequent courts lazily pointed back to the original. Not that everyone coincidently used the same Case as a point of reference and no one chose to document it.
2.13.2006 1:04pm