Judicial Politics - A Paper on Oral Arguments for United States v. Navron Ponds before D.C. Circuit Court of Appeals
Thanks to the prestige and importance of the Supreme Court, throngs of people awake at ungodly hours of the morning to stand in line for the Court's limited capacity audience seating. Also, the novelty of Chief Justice John Roberts and Associate Justice Samuel Alito attracts even more people. All this makes witnessing oral arguments before the Supreme Court difficult. I could not manage the feat. So, to see personally the federal judiciary in action, I settled for the D.C. Circuit Court of Appeals.
Prior to attending oral arguments before the D.C. Circuit, I had the impression the Court bore diminutive stature. Intellectually, I had known the D.C. Circuit sat on the judicial pyramid just below the Supreme Court, with only a few other courts in the nation wielding power equal to it. But, since I had anticipated visiting the Supreme Court, my emotional reaction to the D.C. Circuit had been, this is not important. I had expected the D.C. Circuit courthouse to stand in an obscure part of the city. When I walked out of the closest Metro stop to the courthouse, I was pleasantly surprised to see the Capitol Building sprawling to the right. Knowing this locus of power resided near my destination made me feel as if I had judged the D.C. Circuit poorly. Maybe I would observe something exciting and significant after all.
Granting that, however, whatever the D.C. Circuit did would not have the thrilling impact of a Supreme Court decision. Hence, when I arrived at the courthouse, no lines of eager visitors loitered outside. No crowds of tourists clogged the interior halls. (That suited me, for it meant I could come at a reasonable time and still hope to complete my field work!) The strongest impediment to my progress was, I had no clue how to find the courtroom. I asked a security guard where the D.C. Circuit met; he said the fifth floor. After riding the elevator there, I found a sign pointing to the clerk's office, but nothing indicating the location of the courtroom. So I walked to the clerk's office, intending to ask where the Court sat. In the office, I overheard someone else asking where the Court was and receiving an answer. That answer led me finally to the courtroom, almost on the opposite side of the building from the clerk's office.
I found myself in a modern and ornate room. Exquisitely polished wood paneled the walls on the sides and in the back. Gray marble served as the front wall, behind the raised platform on which stood the judges' desk. Wooden pews, as clean as the walls, lined the area from which the audience could watch the proceedings. The lawyers, appellees, appellants, courtroom staff, and judges would sit on black high–backed office chairs. To facilitate the work of the lawyers, staffers, and judges, gray Dell laptop computers sat on the desks of the proceeding staffers and participants. The sight of the computers surprised me, admittedly because most courtrooms on television and in movies lack such technology. I wish I had brought a wireless network sniffer so I could determine whether a wireless network was operating.
Despite the modern chairs and appliances, the courtroom evoked to my mind the comparison of the American judicial system to a church, though of the law and not the divine. As I said earlier, the audience sat on pews. On both sides of the courtroom, judges in their robed finery looked down at everyone from grave paintings hanging on the walls. Like in church, respectful silence pervaded the room, with no one daring to speak above a whisper without permission. The ostentatiousness yet stateliness of the room reminded me of church. Plus, a heavy atmosphere suffused the courtroom, weighing down the inhabitants until they surrendered their reserve and beheld the place with awe. One calling the courtroom a "cathedral of justice" would not exaggerate.
Immersed in this regal setting, I had thought the first argument—United States v. Navron Ponds—would commence punctually at 9:30 AM. That would keep with the aura of order the courtroom exuded. Instead, the lawyers did not take their seats until a few minutes after 9:30, and the judges not until some minutes after that. As the judges (Judith Rogers, David Tatel, and Janice Brown) filed into the courtroom, the clerk really did say, "Oyez, oyez, oyez," which I had thought an anachronism with which the court system had dispensed. The clerk demanded everyone rise until the judges sat their desk, which we did. And then, at last, the oral arguments for the first case began.
Each lawyer stood behind a podium in the center of the room to speak. As the attorneys gave their presentations, I observed a digital timer on the podium, counting down from the 10 minutes each side had to make their cases. I figured, since each side had 10 minutes apiece, the oral arguments would conclude within a short 20 minutes. Incorrect my assumption was. As the judges asked, and the lawyers attempted to answer, questions about the merits of each side's case, the timer for both sides reached "00:00" and stayed there for 20 to 30 minutes afterward. When the oral arguments concluded, nearly an hour had passed.
Neither the first lawyer, a woman advocating for Ponds, nor her male opponent, an attorney for the United States government, impressed me. The government lawyer acted more confident, but both he and she espoused contradictory lines of thought and did not know the answers to some of the judges' questions, including queries about the very precedents the lawyers were citing. The judges controlled the arguments, trying to resolve inconsistencies and illuminate legalities in both sides' cases. (I suppose the best lawyers argue in front of the Supreme Court, not the Circuit.)
Judge Tatel asked the most questions, vigorously poking holes in the arguments of each lawyer. Sitting at the middle of the judges' desk, laptop in front of her, Judge Rogers spoke less often than Tatel, although she increased her frequency of questioning for the government lawyer. The third judge, Brown, said hardly anything at all. She asked one question of the woman; the rest of the time, she sat and stared at the lawyer behind the podium or glanced occasionally down at papers she had gathered in front of her.
The appellant himself, Navron Ponds, did not attend the proceeding from what I could gather. That disappointed me because I would have liked to picture the man around whom the case revolved. But I guess Ponds's presence was unnecessary. No one could give testimony, so Ponds would not have had the option of taking the stand in his defense. Also, the judges of the D.C. Circuit would have been less susceptible to a defendant's positive appearance and demeanor than a jury.
Because I had other classes to attend later in the day I visited the D.C. Circuit, and because the oral arguments can last much longer than their time allotments would indicate, I left after the presentations of the first case. I exited the courthouse feeling satisfied, for the D.C. Circuit had exceeded many of my expectations. It seemed less organized than I thought it would be upon entering the courthouse and courtroom, but that I could predict such stems from the ornate environment and weighty atmosphere I had not believed I would find at the Circuit. Additionally, the issue under consideration was important, at least to this libertarian.
What was this issue?
Navron Ponds, a Washington, D.C., lawyer, did not want to pay his taxes. Therefore, he committed tax evasion, in the process of which he also laundered money. Amongst Ponds's activities were "transferring the title of his cars, selling a rental property and causing his sister to open an annuity account in her name with the proceeds. Ponds used the funds in that annuity account for his personal use and benefit."1 The federal government acquired at least part of its evidence against Ponds through the use of a subpoena demanding categories of documents, following Ponds's failure to disclose his receipt of a 1991 Mercedes-Benz from a client, Jerome Harris. These six categories were documents relating to:
- "The use, ownership, possession, custody or control of the 1991 Mercedes-Benz".
- "The payment of legal fees by Harris the defendant".
- "Any vehicles in Harris's custody (if the defendant had access to them).
- "Laura P. Pelzer (defendant's sister) or the two other individuals who were on the title of the Mercedes".
- "Correspondence between defendant and the government in the underlying criminal case concerning Mr. Harris".
- "Employees in the defendant's law office".2
A federal court convicted Ponds of tax evasion and wire fraud, sentencing him to 20 months in prison and then 3 years of supervised release.3 Ponds appealed, though, on the grounds the evidence the government used against him was tainted. In the oral arguments before the D.C. Circuit, the attorney for Ponds asserted the subpoena the government had served Ponds was unconstitutional as per the precedent of United States v. Hubbell. In Hubbell, the Supreme Court had established the government may not subpoena documents under broad categories. This would violate a citizen's Fifth Amendment rights because it would require him to incriminate himself through his choice of what documents to produce, as well as by the very act of forcing him to reveal to the government incriminating documents. (I mean specifically reveal, as in bring forth something previously unknown to the other party, and not merely produce.) Only if the government already knows with "reasonable particularity" what documents it is seeking may the government subpoena them. Ponds's lawyer asserted the government did not know what documents Ponds had, as the generality of the subpoena categories revealed, so the D.C. Circuit should dismiss Ponds's conviction.
The appellee lawyer argued, at first, the government did not use the subpoenaed documents in its case against Ponds. After Judge Tatel questioned that assertion, saying the government indeed had admitted it had used the documents in its investigation, the attorney eventually maintained the government knew with "reasonable particularity" Ponds had specific sources of information. As the lawyer continued his presentation, Judge Tatel asked him whether, pursuant to the subpoena, Ponds would have needed to produce correspondence with his sister relating to a family reunion. The government lawyer initially said no, because that would not be material to the investigation. Tatel portrayed that as making the person choose to reveal incriminating documents, as those would be the ones relevant to the investigation, thereby violating the Fifth Amendment. Conceding Tatel's point, after which he changed his answer, saying Ponds would have needed to produce anything relating to his sister, even birthday cards.
While both sides argued their cases, the judges made clear their obligation to obey Supreme Court precedent. Judge Tatel proclaimed, as a lower court, the D.C. Circuit's task was to follow the precedents of Hubbell and Fisher v. United States, a related case, even if the Circuit did have to figure out what the cases mean and how they mesh. Later, Judge Rogers said she was "trying to understand the concept the Supreme Court wants us to apply." This all comports with the role of the D.C. Circuit in the federal judicial system. The Supreme Court sits atop the judicial pyramid, and so directs the decision-making of federal courts below it. This means lower court decisions must be consistent with Supreme Court rulings. In the event a lower court flouts Supreme Court precedent, the Supreme Court will likely overturn the decision, anyway. Ergo, the D.C. Circuit would have extreme difficulty charting new legal territory in contradiction of Supreme Court precedent.
That said, the understanding of lower courts refracts Supreme Court precedent in accordance with the mindsets of the deciding judges, so predicting how the D.C. Circuit will decide is not as simple as canvassing previous Supreme Court rulings on the topic. One must consider the models of judicial decision-making as they relate to the Circuit judges who considered this case in order to determine potential outcomes. The primary decision-making models are legal and attitudinal.
The legal model of judicial decision–making represents the ideal of how Americans believe judges should operate. According to this model, judges sublimate their own political and societal preferences to the plain meaning of the law. If a law is not clear, judges will consider the original intent of the law's writers in rectifying ambiguities. In addition, judges will conform to the principal of stare decisis—"to stand by that which is decided"4—whereby they will respect judicial precedent as much as they can to facilitate a stable legal system. Most lawyers and judges give lip service to following the law and to stare decisis,5 and as I described earlier, the three D.C. Circuit judges who heard Navron Ponds were not exceptions.
If Tatel, Rogers, and Brown decide as per the tenets of the legal model, they will overturn Ponds's conviction. The Hubbell case reaffirmed the Supreme Court's earlier finding in United States v. Doe that the government may not subpoena "broad categories" of documents to fish for incriminating materials.6 As previously mentioned, that would violate a citizen's Fifth Amendment rights. The government may only seek through subpoenas documents of which it knows "either the existence or whereabouts."7 (As Fisher held, compulsion to produce voluntarily–created documents does not itself violate the Fifth Amendment. No government agent forced anyone to create those documents, and the government has every right to obtain documents of which it knows.8 What violates the Fifth Amendment is requiring someone to identify incriminating documents for the government, said Hubbell.9) Ponds's lawyer noted if the government had known what it sought, it could have crafted the subpoena more narrowly instead of requesting such large categories of documents as, for instance, those relating to Ponds's sister. The advocate went on to say the government could have pursued an alternative course that would not have violated Ponds's rights against self-incrimination: The government could have gotten a search warrant and fetched any incriminating documents itself. That the government did not do so bespeaks either sloppiness or insufficient compelling evidence Ponds had broken the law. Whatever the reason, the government acted inappropriately, judging from what Hubbell maintained. If the D.C. Circuit judges follow Supreme Court precedent, they will toss this conviction the government achieved at least partially through ill–obtained evidence as Hubbell defines it.
Whereas the legal model posits judges slavish in their objectivity, the attitudinal model stipulates judges ruled by their subjectivity. Judges will decide cases to advance their own policy preferences, and they will contort law and precedence as much as necessary to support their agendas. In these circumstances, the ideologies of judges deciding a case, and not prior statutes and decisions, will better help predict the eventual outcome. One should still consider precedent–setting cases, such as Hubbell and Fisher in regards to Navron Ponds, but in the context of how the judges could interpret the cases to match their political goals.10
If Judges Tatel, Rogers, and Brown act under the dictates of the attitudinal model rather than the legal model, would they decide the case differently from what I outlined above? No. Judges Tatel and Rogers are leftist judges, ´ la Associate Justices Ruth Bader Ginsberg and David Souter, respectively.11 The American left usually supports narrow government authority under the Fifth Amendment. Given that, Tatel and Rogers would not allow the government to require citizens to identify for investigators incriminating evidence.
As for Brown, a conservative similar to Associate Justice Antonin Scalia,12 she might vote against the government as well, to curtail government aggressiveness, a bane of American conservatives. Scalia himself voted with the majority in Hubbell not to allow subpoenas of broad categories of documents.13 Brown's conservatism, however, might take her in the direction of wanting to be hard on criminals. This could lead her to back the government's actions. In support, Brown could maintain the subpoena categories are not broad enough for Hubbell to cause problems. And she could accept the government's claim it knew with reasonable particularity about Ponds's incriminating documents.
However Brown proceeds, the attitudinal model would still suggest the overturn of Ponds's conviction because of the voters of Tatel and Rogers. (On a side note, if one assumes the attitudinal model has primacy, then my interpretation of what the legal model demands could be a function of my libertarian ideology. Similarly, perhaps judges, into whom law schools drilled the legal model, intend to apply that model but behave as the attitudinal model would predict, anyway, because their ideologies influence their legal interpretations.)
Another way the media especially likes to predict how judges will rule is evaluating their behavior during oral arguments. Was Judge A mean to Lawyer Z? Then maybe A will vote against Z's position. Or was Judge E accommodating toward Attorney R? Then perhaps E wants the same results R does.14 Using this approach, though, is not useful in gauging how the D.C. Circuit might decide Navron Ponds. Judge Tatel grilled both sides. Initially, I believed Tatel reviled the notion of invalidating the subpoena, but then the government lawyer came up, and Tatel ripped him apart, too. I concluded, then, Tatel was playing devil's advocate for both sides, which was fun to watch but undemonstrative of his true thoughts. Judge Rogers also expressed skepticism of both appellant and appellee. Judge Brown did not talk enough for me to analyze her behavior at all.
1 Internal Revenue Service, "FY2004 Examples of General Tax Fraud Investigations." Available http://www.irs.gov/compliance/enforcement/article/0,,id=106792,00.html.
2 United States of America v. Navron Ponds. 290 F. Supp. 2d 71; 2003 U.S. Dist. LEXIS 20522; 92 A.F.T.R.2d (RIA) 7047.
3 IRS.
4 'Lectric Law Library, "Legal Definition of Stare Decisis." Available http://www.lectlaw.com/def2/s065.htm.
5 Dr. Garry Young, lectures at The George Washington University. March 21, 2006.
6 FindLaw, United States v. Hubbell. Available http://laws.findlaw.com/us/000/99-166.html.
7 Ibid.
8 FindLaw, Fisher v. United States. Available http://laws.findlaw.com/us/425/391.html.
9 FindLaw, Hubbell.
10 Dr. Garry Young, lectures at The George Washington University. March 23, 2006.
11 Dr. Garry Young, e-mails to Jason Vines. April 10, 2006, and April 11, 2006.
12 Dr. Garry Young, e-mail to Jason Vines. April 10, 2006.
13 FindLaw, Hubbell.
14 Dr. Garry Young, lectures at The George Washington University.
