It’s July, which means Third Circuit clerkships are wrapping up and the scramble to get opinions out the door is on. Last month was the calm before the storm. This month: the storm. I’m out of town this week and had two deadlines yesterday so I’m sadly behind on my blogging. This is my first of two posts summarizing the recent opinions.

United States v. Payano—criminal—reversal—Krause

This is a significant criminal opinion. The Third Circuit held that a district court’s miscalculation of a defendant’s statutory sentencing range was plain error. The court emphasized the difference between the plain-error “substantially affects” standard for prejudice and a preponderance standard, and it held that the error here met that standard largely due to the prosecution’s reliance on the error in its sentencing arguments. The court rejected the argument that statutory-sentencing-range errors are presumptively prejudicial like Guidlines-range errors are.

Joining Krause were Jordan and Roth. Arguing counsel were former Restrepo clerk Abigail Horn of the EDPA defenders for the defendant and Bernadette McKeon for the government.

GN Netcom v. Plantronics—civil—partial reversal—Fisher

Hard to beat this intro for clarity:

GN Netcom, Inc. filed an antitrust lawsuit against competitor Plantronics, Inc. Plantronics executives deleted emails relevant to the litigation and instructed others to do the same. Many of these emails were unrecoverable, prompting GN to move for default judgment under Federal Rule of Civil Procedure 37. The District Court acted within its discretion when it denied the motion for default judgment, instead instructing the jurors that they were permitted to draw an adverse inference against Plantronics because of the missing emails. However, the District Court committed reversible error when it excluded GN’s expert testimony on the scope of Plantronics’ spoliation. Accordingly, we will affirm in part, reverse in part, and remand for a new trial.

Joining Fisher were Smith in part and McKee; Smith dissented in part, disagreeing that excluding expert testimony on spoliation warranted reversal. Arguing counsel were Elisabeth Theodore of Arnold & Porter for GN and Jon Dean of California for Plantronics.

Forrest v. Parry—civil rights—partial reversal—Greenaway

“Woefully deficient” is how the Third Circuit described the Camden Police Department’s investigation of officer-misconduct complaints, and things only went downhill for the defendants from there. The Third Circuit held that the district court improperly granted summary judgment on some claims, improperly excluded evidence, and issued jury instructions that confused to the relevant law. The core problem was that the district court drew artificial lines between different theories supporting the claims and the evidence supporting them.

Joining Greenaway were Bibas and Fuentes. Arguing counsel were former Fisher clerk Elizabeth Rose of Sullivan & Cromwell for the plaintiff, and Daniel Rybeck and Lilia Londar of Weir & Partners for the defendants.

Simon v. Gov’t Virgin Islands—criminal—partial reversal—Rendell

The Third Circuit reversed the denial of habeas corpus relief on two claims, holding that (1) the petitioner was entitled to an evidentiary hearing on his claim that the prosecution failed to disclose a prior deal with a witness and (2)  he also was entitled to an evidentiary hearing on his ineffective-assistance claim where his trial counsel also represented a co-conspirator.

Joining Rendell were Smith and Jordan. Arguing counsel were Joseph DiRuzzo III of Florida for the petitioner and Su-Layne Walker for the Virgin Islands.