Endeavoring. The Second Circuit addressed the issue of whether the cross-reference of United States Sentencing Guidelines 2J1.2 with 2X3.1 for cases "involving obstruction" of an investigation applies when there was no actual obstruction, but merely an "endeavor" to obstruct justice. The Second Circuit held that that cross-reference does apply whether there is actual obstruction or merely an endeavor to do so.

The decision in United States v. Giovanelli can be found here.

Burn!!!! This is not a post about a Second Circuit case (it's about a Seventh Circuit case), but the sanction imposed by Judge Easterbrook for a frivolous motion is worth mentioning to all appellate practitioners. The appellant in Custom Vehicles, Inc. v. Forest River, Inc. moved to have the Court strike sections of its opponent's brief, claiming that it contained unsupported assertions of fact. The Judge acknowledged that it was possible that the appellant's reading of the record might be correct and the appellee's wrong, but then asked why the appellant believed that the Court was going to redact his adversary's brief. He explained that the proper method of pointing out errors in an appellee's brief is to point them out in a reply brief. Judge Easterbrook noted that the"judiciary has quite enough to do deciding cases on their merits" and pointed out that there was no rule for "a judicial blue pencil."

As a sanction, Judge Easterbrook deducted twice the length of the motion from the permissible length of a reply brief.

The decision can be found here. Oh, and thanks to Howard Bashman of How Appealing for pointing this decision out.

Not contempt. The Second Circuit reversed a conviction of criminal contempt against a plaintiff in a civil action, arising from her contact with a juror in the courtroom cafeteria during the trial of her case. The plaintiff had given the juror, who she knew she was not supposed to talk to, some papers, which she told the juror that she should read.

The plaintiff had been charged under 18U.S.C. 401(1), for a direct contempt of court. However, in order to be convicted of that statute, a party would have to have committed the contempt in or near the courtroom. The Second Circuit held that the cafeteria, ten floors away from the courtroom was not sufficiently near the courtroom to trigger the statute. The Court stated that: "Unlike jury rooms, witness rooms, or immediately adjacent hallways, the cafeteria is not a place 'set apart' for official court business, or for the use of jurors or other trial participants."

In that the government had failed to prove an essential element of its case in this contempt proceeding, the judgment was reversed and the case remanded with instructions to enter a judgment of acquittal. The decision in United States v. Rangolan can be found here.

Bankruptcy Rule 8001 Dismissal. A bankruptcy debtor appealed a dismissal of his bankruptcy case but did not include a transcript of the proceedings below, as required by Bankrutptcy Rule 8006. The district court dismissed the appeal, without considering the merits, pursuant to Bankruptcy Rule 8001 because of the debtor's failure to include the transcript. The debtor appealed to the Second Circuit.

The Second Circuit adopted a flexible approach to Rule 8001 and declined to adopt any fixed rules about what district court must do in the Rule 8001 context and held that a court should exercise its discretion given the factual circumstances of a particular case. The Court stated that district courts should consider whether a lesser sanction (other than dismissal) might be appropriate, whether counsel's behavior evinces bad faith or a pattern of negligence, whether any party has suffered prejudice as a result of the attorney's conduct and whether the litigant should be granted the opportunity to rectify the problem.

In this case, the debtor, who acted pro se (but who was a bankruptcy lawyer), believed the transcript was not necessary because it contained only argument, not testimony. The Court found that dismissing the case had been an abuse of discretion. The Court noted that the district court did not give the debtor an opportunity to rectify the error. The Court was also concerned that serious questions on the merits, which might have been resolved in the debtor's favor, had been left unresolved.

The Court vacated the judgment of the district court and remanded the case for proceedings not inconsistent with its decision. The decision in In re Harris can be found here.

New blogger. Well, with the graduation of Heidi Bond from law school and the blogosphere (at least temporarily, while she's clerking for Judge Kozinski), I have decided to adopt a new 1L blog. My new adoptee is Law Mommy of Law and Mommyhood. Check it out. I'm sure you'll like it.

Apprentice Finalist. I don't know if you watched the Fifth Season of The Apprentice, Donald Trump's show, but one of the final four was an appellate attorney, Roxanne. So I decided to see what she's up to. According to The Apprentice website, she worked for Winstead Sechrest & Minick, P.C., a Texas firm. But she doesn't seem to be working there anymore because there is nobody named Roxanne in their appellate department. A little more poking around on the internet reveals that she has set up a consulting firm (and her full name is Roxanne Wilson). But the website doesn't reveal what the firm does, and it seems to indicate that she's still practicing law. I enjoyed watching her and rooting for her on The Apprentice, and I hope she does well -- in appellate litigation. Just for the record, she is a graduate of the University of Michigan Law School and clerked for two Texas Supreme Court justices. (University of Michigan? I wonder if she knows Heidi Bond.)