New opinions — the post-vacation marathon catch-up edition

I was on vacation last week. I had planned to keep posting on new opinions, diehard CA3 enthusiast that I am, but I ended up assisting a colleague on an urgent habeas case instead. So now I’ve got serious some catching up to do. Here goes, starting with today’s opinion and working back …

United States v. Centeno — criminal — reversal — Shwartz

The Third Circuit today vacated two criminal convictions: one because the prosecutor’s closing argument sought conviction on a basis not charged in the indictment and thus resulted in an improper constructive amendment, the other because one count of conviction violated double jeopardy because that count was a lesser-included offense of another count of conviction (the defendant failed to object at trial; the government confessed error on appeal). The panel rejected sufficiency-of-the-evidence challenges.

Joining Shwartz were Fisher and Jordan. Arguing counsel for one co-defendant was Brett Sweitzer of the EDPA FD, for the other Elizabeth Plasser Kelly; arguing for the government was Denise Wolf.

Perelman v. Perelman — ERISA — affirmance — Vanaskie

The Third Circuit affirmed district-court rulings that an ERISA plaintiff lacked standing to raise certain claims and was not entitled to attorney’s fees. Vanaskie was joined by Ambro and Shwartz. The case was decided without argument.

Evankavitch v. Green Tree Servicing — consumer — affirmance — Krause

A consumer win in a debt-collection appeal, cogently summarized in the Third Circuit opinion’s opening paragraph:

Under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., a debt collector is liable to a consumer for contacting third parties in pursuit of that consumer’s debt unless the communication falls under a statutory exception. One of those exceptions covers communication with a third party “for the purpose of acquiring location information about the consumer” but, even then, prohibits more than one such contact “unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.” 15 U.S.C. § 1692b. In this appeal following a jury verdict and judgment entered against a debt collector for repeated contact with third parties, we consider a matter of first impression among the Courts of Appeals: whether the burden in such a case is on the debt collector to prove or the consumer to disprove that the challenged third-party communications fit within § 1692b’s exception for acquisition of location information. We conclude that the debt collector bears that burden and will therefore affirm.

Joining Krause were Fuentes and Fisher. Arguing counsel were Deepak Gupta of D.C. appellate boutique Gupta Wessler for the debtor and David Bird of Reed Smith for the debt collector.

US v. Small — criminal — affirmance — Chagares

Sometimes, the line between clever and stupid is murky. Kevin Small was serving a state prison sentence, and when that sentence was over he was to be handed over to serve a federal sentence for tax fraud. So he arranged for a fake federal court order purporting to vacate his federal sentence to be sent to the state prison. I never would have believed that that would work, but it did. Clever? Stupid? Both?

Anyway, the issue on appeal was whether Small’s gambit amounted to the federal crime of escape, which normally applies to an escapee from federal custody. The court held that it did. Poor Small now has 5 years for escape tacked onto his 11+ years for tax fraud.

Joining Chagares were Ambro and Vanaskie. Arguing counsel were Eleni Kousoulis for Small and Christy Fawcett for the government.

US v. Fountain — criminal — affirmance — Krause

In a consolidated tax-fraud appeal, the Third Circuit affirmed. The court rejected a host of challenges to the convictions and sentences. The main significance of the case appears to be that it clarifies the standard for criminal liability under the Hobbs Act for defendants prosecuted for acting under color of official right.

Joining Krause were Fuentes and Fisher. Arguing counsel for the defendants were Julie McGrain, Lawrence Bozzelli, and Daniel Siegel, while Joseph Khan argued for the government.

Trinity Wall Street v. Wal-Mart — corporate governance — reversal — Ambro

In a high-profile shareholder-suit appeal, the Third Circuit ruled that Wal-Mart was allowed to block one of its shareholders from submitting a proposal for shareholder vote that would have required Wal-Mart to re-evaluate its sale of high-capacity guns.

Vanaskie joined Ambro’s 60-page majority opinion. Krause concurred in the judgment, joined by Vanaskie in part. Arguing counsel were Theodore Boutrous, Jr. of Gibson Dunn for Wal-Mart and Joel Friedlander for the shareholders.

US v. Edwards — criminal — reversal — Smith

The Third Circuit vacated a criminal conviction because the prosecution violated the 5th Amendment by repeatedly referring to the defendant’s post-arrest, post-Miranda silence during the trial and closing arguments. The government conceded the error on appeal but argued unsuccessfully that it was harmless because the court gave a curative instruction. The court held that the instruction did not make the error harmless because it only came after the court had overruled the defendant’s contemporaneous objection and because it was contradicted by other instructions.

Joining Smith were McKee and Scirica. Arguing counsel were Alvin Entin for the defendant and Nelson Jones for the government.

American Farm Bureau v. US EPA — environmental — affirmance — Ambro

The Third Circuit upheld a 2010 EPA regulation limiting discharge of pollution into the Chesapeake Bay. The long opinion concludes thus:

Water pollution in the Chesapeake Bay is a complex problem currently affecting at least 17,000,000 people (with more to come). Any solution to it will result in winners and losers. To judge from the arguments and the amici briefs filed in this case, the winners are environmental groups, the states that border the Bay, tourists, fishermen, municipal waste water treatment works, and urban centers. The losers are rural counties with farming operations, nonpoint source polluters, the agricultural industry, and those states that would prefer a lighter touch from the EPA. Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution. The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay—to make it once again a part of our “land of living,” Robert Frost, The Gift Outright line 10—a goal our elected representatives have repeatedly endorsed.

Joining Ambro were Scirica and Roth. Arguing counsel were Richard Schwartz for the polluters, J. David Gunter II for the EPA, John Mueller for environmental intervenors, and Christopher Pomeroy and Steven Hann for municipal interventors.

US v. Lowe — criminal — reversal — McKee

The Third Circuit reversed the denial of a motion to suppress evidence, holding that (1) the defendant was seized when the officers approached him and ordered him to take his hands out of pockets and (2) the officers lacked reasonable suspicion when they seized the defendant.

Joining McKee were Greenaway and Krause. Arguing counsel were Robert Epstein for the defendant and Robert Zauzmer for the government.

 Jensen v. Hessler — consumer — affirmance — McKee

The Third Circuit held that a false statement in a debt-collector communication is actionable under the FDCPA only if it is material. The court held that listing the wrong name for a court clerk on a subpoena was not material and affirmed.

Joining McKee were Rendell and Fuentes. Arguing counsel were Sergei Lemberg for the debtor and Mitchell Williamson and Lauren Burnette for the debt-collectors.