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:
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:
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):
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:
Kozinski then provided the following analysis of whether the lack of evidence satisfied the requirements of 28 U.S.C. 2254(d)(1):
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 andconcluded stated that it had the following elements:
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:
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.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.
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?
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—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.
(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;
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
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.
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...
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.
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?
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.
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.
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.
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.
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?
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."
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.
"-- 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.
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.
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.
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?
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.
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!
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.
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.
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.
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.
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.
Wow, you really are not familiar with the US court system . . .
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.
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.
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.)
The link helps...
www.ca9.uscourts.gov/ca9/media.nsf/Media+Search?OpenForm
it is case 04-17338
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.
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.
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?
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.
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.)
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":
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**.
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.
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.
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?
"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.
You are not missing something. Forty some other folks have though.
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:Here is the Nevada Supreme Court's language when it affirmed Goldyn's conviction: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.
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.
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.
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.
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.
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.
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.
And Blakely says that judges cannot take away decisions about the elements from juries.
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.
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?
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.
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.
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?
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.
In any case, if you're relying on Bush v. Gore for precedent, you know you're on the losing side of the argument.
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?
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.
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."
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.
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.
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).
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.
So, no, I don't think Kozinskis fudged.
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.
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.
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
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.
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.
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.
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.
Why not just reach the result, using restrained language, and leave to others to speculate about the "irrational" state judicial system?
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.
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.
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.
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.
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.
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
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.
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.
Tangent: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.
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.
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.
I said K could certify. I also said he didn't have to. So what is the point of your post?
"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.
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.
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.
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.
"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.
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.
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.
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.
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.