New opinions — habeas and tax appeals, both featuring waiver

Bennett v. Superintendent — habeas corpus — reversal — Restrepo

The Third Circuit today ruled in favor of a habeas corpus petitioner, holding that erroneous jury instructions deprived him of due process. [Disclosure: I provided consulting assistance on the appeal to petitioner’s counsel.]

The court concluded that the faulty instructions could lead the Pennsylvania jury to believe that a defendant who had no specific intent to kill could still be found guilty of murder based on an accomplice’s intent. The language from the instructions is quoted at p.34 of today’s opinion. The court’s review was de novo because the Pennsylvania courts failed to address the claim during state post-conviction proceedings. The court also held that the Commonwealth waived the harmless-error defense by failing to assert it unequivocally in this appeal.

Joining Restrepo were Ambro and Nygaard. Arguing for the petitioner were Drexel law Appellate Litigation Clinic students Ke Gang and Mischa Wheat, supervised by Richard Frankel. The court thanked the clinic  its “skillful pro bono advocacy.” Arguing for the Commonwealth was former Vanaskie clerk Christopher Lynett of the Philadelphia DA’s Office.

 

Spireas v. Commissioner IRS — tax — affirmance — Hardiman

In a high-stakes tax appeal, the Third Circuit today held that the taxpayer waived his argument on appeal by failing to assert it before the tax court. The taxpayer is a pharmaceutical scientist who earned $40 million in royalties in just two years, and the dispute was over whether this income was capital gains taxed at 15% or regular income taxed at 35%. The court did not discuss the merits of the waived claim.

Joining Hardiman was Shwartz. Judge Roth dissented, arguing that the taxpayer had not waived its argument. Arguing counsel were Brian Killian of Morgan Lewis for the taxpayer and Clint Carpenter of the DOJ Tax Division for the government.