Summary orders do not have precedential effect. But, those filed after January 1, 2007, can now be cited as long as certain citation requirements are met. See Fed.R.Ap.Proc. 32.1 and Second Circuit Local Rule 32.1. In light of this, starting October 2007, the Second Circuit Blog is introducing a new feature, called Summary Summary. In it we briefly comment on summary orders of interest.
So, here we go!
United States v. Watson, No. 05-6184-cr (October 3, 2007)(summary order). During deliberations, a juror became convinced that the government’s main witness was the same man who had raped the juror’s daughter the year before, and the court discharged her. The court of appeals held there was “good cause” under for the discharge under Fed.R.Crim.Proc 23.1.
United States v. Tyson, No. 06-1727-cr (October 12, 2007)(summary order). Tyson appealed several aspects of his sentence, including an obstruction of justice enhancement. The court held that it needed “more specific findings by the district court” on this issue, and remanded the case under United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994).
This is perhaps the Blog’s first look at so-called “Jacobson remands,” so here are a few words about them. Once upon a time, when the Second Circuit believed that the district court had not made adequate findings in support of an a sentence enhancement, including the obstruction enhancement, it would file a published an opinion remanding the case. See, e.g., United States v. Williams, 79 F.3d 334 (2d Cir. 1996); United States v. Catano-Alzate, 62 F.3d 41 (2d Cir. 1995).
Meanwhile, in Jacobson, 15 F.3d at 21-22, the court described its procedure for seeking supplementation of a sentencing record while retaining appellate jurisdiction in cases where the reasons for the particular sentence were unclear. Jacobson did not involve a challenge to a particular enhancement; rather, there, the district court’s reasons for the particular sentence were alleged to be unconstitutional, and the appellate court remanded the case so that the district court could explain them better.
Somewhere along the way, the circuit decided that the Jacobson procedure could be used whenever the district court record was lacking, and not just in the specific circumstance when the reasons for the sentence were unclear. A quick search reveals twenty or so cases since 1996 that have utilized this procedure, with the vast majority of them occurring within the past three years.
So – is this a good thing or a bad thing? Probably bad. Remanding the case for a limited set of findingsrestricts what defense counsel can do once the case goes back to the district court. A resentencing, on the other hand, would give the defense a second bite at the apple.
Be that as it may – it looks as if the Jacobson remand is here to stay.