In our continuing examinations of the decisions of judges rumored to be under serious consideration for nomination to the Supreme Court, below are summaries of a number of Judge Sotomayor's decisions that provoked dissents or concurrences from other panel members.

Galarza v. Keane, 252 F.3d 630 (2001), was a habeas case focusing on jury selection in a state court drug case.  The prosecutors had peremptorily struck a number of Hispanic jurors, leading the defendants' counsel to raise a Batson challenge.  As required by Batson, the trial judge required the prosecution to articulate a non-racial basis for the strikes.  Defense counsel objected to those explanations as pretextual.  While the judge specifically declared that he credited the prosecution's explanations with respect to some of the prospective jurors, the court made no clear finding with respect to the others.   But in the end he permitted all of the strikes to stand.  When the judge made that ruling, defense counsel did not object to the court's failure to specifically declare whether he credited the prosecution's explanations with respect to some of the prospective jurors.  On appeal from a subsequent habeas petition, Judge Sotomayor rejected the prosecution's assertion that by failing to make that objection, the defendant was procedurally barred from raising his Batson claim in federal court.  First, she concluded that the state courts had not relied on the defendant's failure as grounds for denying his Batson claim on direct or state habeas review.  And under circuit precedent, she wrote, a procedural failure in a trial is not a bar to federal habeas relief unless the state courts rely on the failure to deny relief.  In addition, she wrote that "we decline to create a procedural requirement that a party must repeat his or her Batson challenge three times at trial in order to avoid a procedural bar."  Judge Walker, in dissent, argued that the defendant's failure to raise his objection to the court's lack of a credibility finding at the time the decision was made barred him from seeking habeas relief in federal court.  He agreed that the state appellate court's failure to rely on that ground precluded finding a traditional procedural bar.  However, he concluded that the failure to make the objection rendered the defendant's claim meritless under Batson itself, which he read to require a contemporaneous objection not only to the peremptory strikes but also to the judge's allegedly erroneous ruling on the objection.

In United States v. Hendrickson, 26 F.3d 321 (1994), Judge Sotomayor, still a district judge but sitting by designation on the Second Circuit, considered questions regarding burdens of proof with respect to drug quantity for sentencing purposes in a drug conspiracy case.  The sentence called for by the Sentencing Guidelines depends in large part on the quantity of drugs involved in the conspiracy.  The issue in Hendrickson had to do with a conspiracy in which there was a possibility that the defendant was promising to deliver more drugs than he intended to deliver, or was capable of delivering.  Judge Sotomayor, joined by Judge Oakes, held that the Government had to prove not only that the defendant negotiated to deliver a certain quantity of drugs, but also that he had agreed with at least one other co-conspirator to actually follow through on the promise.   In dissent, Judge Winter argued that the majority had given insufficient credence to an application note in the Guidelines which suggested that the negotiated amount establishes the base level for the offense.

In United States v. Kennedy, 233 F.3d 157 (2000), Judge Sotomayor and a dissenting colleague disagreed over the meaning of the word "process" in a provision of the Sentencing Guidelines calling for enhanced punishment for an offense involving a "violation of any judicial or administrative order, injunction, decree, or process."   The defendant was convicted of concealing assets during a bankruptcy proceeding.  Judge Sotomayor, joined by Judge Kearse and consistent with the majority of other courts of appeals, read the word broadly to include the entirety of the judicial proceedings.  In dissent, Judge Sack read the word to include only a summons or other writ.

United States v. Santa, 180 F.3d 20 (1999), involved a question the Supreme Court eventually considered this term in Herring v. United States, No. 07-513.  At one time, there had been an arrest warrant issued for Mr. Santa.  That fact was put into a statewide computer database.  The warrant was subsequently recalled, but that fact never made it into the database.  When the police arrested Santa, wrongly believing there was still a warrant out for him, they searched him and found drugs.  He moved to suppress the evidence as the result of an unconstitutional arrest (i.e., an arrest without probable cause or a warrant).  Judge Sotomayor, writing for the majority, ruled that the evidence should not be suppressed under the exclusionary rule "“ the same conclusion reached by the Supreme Court in Herring.  Judge Newman joined the opinion but wrote separately to voice his disquiet over the fact that the defendant had been arrested by the local police but was prosecuted in federal court because New York courts would have suppressed the evidence as a matter of state law had he been prosecuted locally.

In United States v. Giordana, 442 F.3d 30 (2006), Judge Sotomayor upheld the conviction of the former mayor of Waterbury, Connecticut, for sex crimes.  Prior to taking office, the defendant had a long-term sex-for-money relationship with a local prostitute.  At some point, he began requesting that she bring young girls to provide sexual services as well.  Eventually, the prostitute brought her eight-year-old daughter and eleven-year-old niece.  The sexual abuse continued when the defendant became mayor.  On appeal from his conviction, Judge Sotomayor held that his use of a telephone to arrange the liaisons satisfied the requirement in 18 U.S.C. §§ 371 and 2425 that the sex crime involve use of a "facility of interstate commerce," and rejected the defendant's claim that the statute exceeded the scope of Congress's Commerce Clause power.   On those rulings, the entire panel agreed.  However, the panel split on whether the defendant also violated 18 U.S.C. § 242, which punishes violations of individuals' civil rights by government officials acting "under color of law."  Judge Sotomayor, joined by Judge Hall, concluded that by securing the sexual services of children while Mayor, the defendant was acting under color of law.   There was sufficient evidence to show, they found, that the defendant threatened the children into silence by telling them that if they told anyone about the abuse they or their family would go to jail and had led them to believe that he controlled the town's police force.   Judge Jacobs disagreed.  He concluded that to show a violation of Section 242, the Government was required to prove that the defendant's office was the "but for cause" of his ability to commit the crime.  Judge Jacobs pointed out that the abuse had begun before the Mayor took office and that he had previously secured access to the children without any use of government power.  And, Judge Jacobs said, the threats of jail (at least with respect to the adult prostitute) were "no less than factual" and no different than the kinds of threats ordinary citizen abusers make.

In Doe v. Menefee, 391 F.3d 147 (2004), Judge Sotomayor, writing for the majority, rejected a habeas petitioner's claim to relief from the federal habeas statute of limitations on actual innocence grounds.  The district court held that the defendant was actually innocent of the sodomy charges to which he had pled guilty, but had waited too long to bring a habeas claim to set aside the conviction.  On appeal, Judge Sotomayor held that the evidence of actual innocence was insufficient in light of the defendant's prior confession and other evidence in the record.  Judge Pooler dissented, complaining that the majority had failed to adequately defer to the trial court's assessment of the evidence of actual innocence.

In re Subpoena Issued to Dennis Friedmannn, 350 F.3d 65 (2003), concerned the standards for allowing a former client to compel his or her prior attorney to give deposition testimony concerning the representation.  Judge Sotomayor, writing for the majority, concluded that the district court had erred in requiring the former client to exhaust all other available means of obtaining the information before resorting to a subpoena of the lawyer.  However, because the attorney had subsequently consented to the deposition, the court held that the appeal was moot.  Judge Wesley concurred in the result only and criticized the majority for opinion on the merits of the appeal when it was clear that the appeal was moot.

The plaintiff in Boykin v. Keycorp, 521 F.3d 202 (2008) had complained to the Department of Housing and Urban Development (HUD) that a certain lender was engaging in discriminatory lending practices.  HUD referred the complaint to a state fair housing agency for investigation, which completed its investigation in December, 2001.  About three months later, HUD sent the plaintiff a letter stating that it had received the results from the state investigation and therefore was closing its file.  The question in the case was upon which date "“ the date the state investigation was finished or the date HUD sent is "final letter" closing the file "“ the Fair Housing Act tolling stopped.   Judge Sotomayor, writing for the court, chose the HUD "final letter" date and sent the case back for further proceedings.  Concurring in the result, Judge Winter argued that "[f]inal letters are legal non-events" and therefore an inappropriate basis for triggering the recommencement of the statute of limitations.  Instead, he would have found the plaintiff's complaint timely under equitable tolling principles.

In United States v. Lopez, 445 F.3d 90 (2006), Judge Sotomayor construed 8 U.S.C. § 1326(a), which provides for criminal punishment for aliens who illegally reenter the country after having previously been deported.  The statute allows an alien to defend against the charge by showing that the prior deportation proceedings denied him an "opportunity for judicial review" and were "fundamentally unfair."  Judge Sotomayor, writing for the majority, held that the immigration court's failure to tell the alien of his right to habeas review of the deportation order did not deny him an opportunity for judicial review within the meaning of this statute.  However, she ruled that the defendant may have been denied an opportunity for judicial review when the immigration court falsely told the alien that he was categorically ineligible for withholding of deportation.   The court remanded to the district court to decide whether this false information caused actual prejudice.  Judge Ragg, concurring in part and dissenting in part, argued that this latter ruling was based on a misreading of prior circuit precedent.

Michel v. INS, 206 F.3d 253 (2000), was a badly splintered decision regarding a deportation order.  The panel unanimously agreed that the alien had not been denied his right to counsel at the deportation hearing.  Judge Sotomayor joined Judge Calabresi's opinion rejecting the alien's claim that the crimes that formed the basis of his deportation should count as a single crime and therefore did not trigger a statutory provision requiring deportation of an alien convicted of two or more crimes involving moral turpitude.  (Judge Cabranes wrote separately to agree with that conclusion, but to argue that the court should have reached it by giving Chevron deference to the Board of Immigration Appeals (BIA) determination on that question).  Judge Sotomayor, joined by Judge Cabranes, then upheld the BIA's determination that the two prior crimes (possession of stolen bus transfers) constituted crimes of moral turpitude, giving the Board's interpretation Chevron deference.  Judge Calabresi dissented from this conclusion (and therefore from the judgment of the court) because he believed that the BIA's conclusion that possession of stolen bus transfers constitute crimes of moral turpitude was unreasonable and therefore did not warrant Chevron deference.

In Empire HealthChoice Assurance, Inc. v. McVeigh ex rel. Estate of McVeigh, 396 F.3d 136 (2005), the administrator of a health plan for New York state federal employees brought an action in federal court against the estate of a former plan enrollee, seeking to recover certain benefits the plan had paid the deceased.  Judge Sotomayor, writing for the panel, held that the claims arose under state law and, therefore, did not establish federal question jurisdiction.  It was not enough, she held, that the plan was created pursuant to a federal statute, or that federal common law generally governs the contractual rights of the United States government, since the plan was not an instrumentality of the federal government but merely the result of federal legislation.  Judge Raggi dissented, reading the federal statute to require that federal common law govern enforcement of the plan's terms and, hence, to establish federal question jurisdiction.

In United States v. Falso, 544 F.3d 110 (2008), Judge Sotomayor, joined by Judge Livingston, rejected a defendant's plea to overturn his conviction based on a Fourth Amendment violation.  The defendant was arrested for possession of child pornography after FBI agents searched his home with a warrant.  The warrant application stated that an agent had purchased a  subscription to a website advertising available child porn and that in light of a subsequent forensic examination of the site "it appeared" that the defendant "either gained access or attempted to gain access" to the website as well.  In addition, the affidavit revealed that the defendant had previously been arrested in 1987 on charges of sexually abusing a seven-year-old girl and pled guilty to a misdemeanor charge of "acting in a manner injuriouss to a child less than sixteen" for which he received probation.  Writing for the majority, Judge Sotomayor held that this failed to establish probable cause for the search warrant.  However, she held that the constitutional violation did not warrant exclusion of the evidence because the officers acted in good faith reliance on the wrongly-issued warrant.  She further rejected the defendant's reliance on an exception to the exception: she concluded that there was insufficient evidence to show that the issuing magistrate was knowingly or recklessly mislead.  And she rejected the claim that the warrant application was so facially lacking in indicia of probable cause as to make reliance upon it unreasonable.  Judge Livingston concurred in part and in the judgment, but would have ruled that the police had probable cause.

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