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“Revenant” in U.S. Courts

August 10, 2012

There is an upcoming zombie-like movie to be released this month called “The Revenant” . Merrian-Webster explains “revenant” as an adjective derived from the French word “revenir”, which means “to return” and conjugated to the present participle is “revenant”; which in English means: “one that returns after death or a long absence”. ZombieLaw mentioned the word in June when Chris Totten used it to describe video game zombies and I cited the wikipedia entry for “revenant”; the word was also the title of a 1999 video game. This post now is a compilation of the U.S. Court opinions that use the word.

    ZombieLaw presents: “Revenant” in U.S. Courts

M-W claims the first known usage as 1818. In 1819 the Spanish version of the word appeared in an 1819 treaty between U.S. and Spain, which appeared in the appendix of an 1821 SCOTUS opinion, The Amiable Isabella, 19 U.S. 1 (1821), where in the English it seems to mean coming and going as in travel visas (ironic considering the most recent 2012 case described below).

In 1871 and 1873, the French word “revenant” appears in two cases at the Supreme Court of Louisiana, both referring to written evidence documents (contracts) written in French. See Arnaud LeBourgeois v. Emma LeBourgeois, 23 La. Ann. 757 (1871) and Marcel Guidry v. J. Jeanneud & Co., 25 La. Ann. 634 (1873). (Incidentally, the LeBourgeois case is about property transactions and a divorce, what an appropriate surname!)

The first appearance of the English word “revenant” in U.S. courts is Justice White’s 1963 dissent in the Supreme Court case Florida Lime & Avocado Growers, Inc., et al. v. Paul, Director of the Department of Agriculture of California, et al., 373 U.S. 132 (1963). Justice White begins his dissent:

This is the second time this case has come before the Court. In Florida Lime & Avocado Growers, Inc., v. Jacobsen, 362 U.S. 73, the case was here for review of dismissal of the complaint for want of jurisdiction. The Court reversed and remanded for trial and the case is now here on the merits, after the three-judge District Court refused to enjoin the appellee state officers from enforcing § 792 of the California Agricultural Code against the appellant growers. 197 F.Supp. 780, probable jurisdiction noted, 368 U.S. 964, 965. In view of the Court’s disposition of the matter today, it is probable that this case like a revenant will return to us within another few Terms with a still more copious record.

The next year, in New York Appellate Division First Department, Judge Vicente begins his dissent to Application of Uddo, 21 A.D.2d 402 (1964):

I dissent and would affirm the order compelling appellant to arbitrate.

The result reached by the majority may fairly be considered as a subtle revenant of the Cutler-Hammer doctrine (Matter of International Assn. of Machinists [Cutler-Hammer], 271 App. Div. 917, affd. 297 N. Y. 519) which, presumably, was thoroughly and effectively exorcized by former section 1448-a of the Civil Practice Act and the present 7501 Civil Practice Law and Rules. These sections specifically preclude the court from considering “whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute”.

In 1978, Kline v. Chase Manhattan Bank (43 Md. App. 133), the Court of Special Appeals of Maryland, Judge Gilbert, uses the word to describe challenges to a completed foreclosure based on perceived fraud by the bank.

Ignoring the clear rule that a ratified foreclosure proceeding may not be collaterally assailed, the appellants sought to inject into the suit on the guaranty the revenant of fraud allegedly committed by Chase in the foreclosure. Appellants here aver that Chase had already obtained a purchaser for the property, at a price well in excess of that it paid at the foreclosure. The expert witness who testified for Chase in the foreclosure ratification proceeding valued the property at approximately $ 2,300,000. He had admittedly not been informed that Chase had a purchaser for the two sections at a price of $ 3,550,000. Because of Chase’s nondisclosure of the negotiations relative to a resale, appellants perceive that a fraud has been perpetrated upon them and the court

Judge Gilbert concludes that it is too late to challenge the ratified foreclosure proceeding in this way (even though the claimant did not discover the bank’s plans until it was too late, the proper venue would be petition to the equity court) and affirms judgement.

In 1993, Judge Gregory Kishel, of U.S. Bankruptcy Court (a court of equity), wrote the opinion for the case of Moodie-Yannotti v. Swan, 156 B.R. 618. Noting that this case had “unique, even anomalous procedural history” the judge makes “observations largely stem[ming] from gut-level considerations of fairness.” The opinion explains:

At this point, the jury verdict on the fraud count has been set aside. In a very real sense, applying the exception to the Plaintiff’s benefit would summon the jury’s decision from the metaphysical Great Beyond to which Judge Hartigan’s order exiled it. More crucially, it would give binding collateral effect to the revenant verdict. Several possible objections, none of them unreasonable, come to mind. One is on an abstract philosophical plane: Was the slate not wiped clean on the fraud claim, when a new trial was granted? How can the verdict be given such real-life effect, when it was legally annulled for all further proceedings in the forum that spawned it? The other stems from concerns over federalism: would a federal court not be denying comity to the current status of the docket in the state court case, were it to consider the set-aside verdict as having continuing vitality?

Concluding, and discharging Plaintiff’s debts as per the original State court jury determination:

When the respective equities are weighed with such concerns in mind, the Defendant’s come up short of the Plaintiff’s.

These revenants all represent sorts of shadow elements of the legal universe; the law outside of the law. Reference to repetition of litigation, arguments about dead law, untimely evidence, the decision-making power of juries, and other metaphysical qualities are supposed to be philosophically removed from the idealized law.

Next, in 2002 securities litigation, the US Court of Appeals for the Ninth Circuit, In re Broderbund/Learning Co. Secs. Litig. v. Mattell, Inc, 294 F.3d 1201, must decide about stock loses after a merger. The opinion by Judge Ferdinand F. Fernandez:

The logical question, then, is how Wolfe’s $ 15.7625 gain per share can be a loss.

Wolfe says it is a loss because, even though the TLC stock was exchanged for Mattel stock, he did not really dispose of the TLC stock, and it continued to have some kind of existence right up to the date this action was filed. Thus, says he, the measure of damages should be in accord with § 77k(e)(1), that is, the stock’s price on the date this action was brought.

But, in fact, neither TLC nor its stock continued to exist after the merger took place. TLC has simply disappeared. See 2 Henry W. Ballantine & Graham L. Sterling, California Corporation Laws § 252.03, at 12-10, 12-12 (4th ed. 2002); Harry G. Henn & John R. Alexander, Laws of Corporations, § 346 (3d ed. 1983). It has no continuing existence whatsoever. See Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 91 (3d Cir. 1988). Nor does the stock itself continue to exist – it has been extinguished. See Frandsen v. Jensen-Sundquist Agency, Inc., 802 F.2d 941, 944 (7th Cir. 1986). And if we were to declare that even though the stock has disappeared it still lingers on in some phantom form, what would be the mystical value of that revenant security? Nobody can really tell; the most we know is the price of Mattel stock. In fine, 77k(e)(1) cannot apply to people who no longer held TLC stock on the date that this action was filed. By then Wolfe had disposed of his TLC stock, 3 and it no longer existed at all, either in his hands or otherwise. See Versyss Inc. v. Coopers & Lybrand, 982 F.2d 653, 655 (1st Cir. 1992); In re McKesson HBOC, Inc. Sec. Litig., 126 F. Supp. 2d 1248, 1262 (N.D. Cal. 2000).

Judge Fernandez concludes (continuing to show off his vocabulary):

Wolfe acquired TLC stock at $ 17.6875 per share and disposed of it at $ 33.45 per share. He now sues Mattel and TLC’s officers and directors because of alleged improprieties at and before the date of his acquisition of the TLC stock. By use of rather vermiculate logic, he now attempts to change his $ 15.7625 per share gain into a loss. The perspicacious district judge was not persuaded that gain is loss. Nor are we. AFFIRMED.

In another instance of the same Court displaying its S.A.T. vocabulary, see the per curiam opinion of Judges Alex Kozinski, Ferdinand Fernandez, and Pamela Ann Rymer. This Ninth Circuit Court of Appeals case is the habeas corpus petition of Richard A. Leavitt v. Arvon J. Arave, Warden, Idaho State Correctional Institution, 371 F.3d 663 (filed June 14, 2004). Judge Fernandez also filed a separate concurring opinion in this case but based on the similarity in vocabulary I expect he (or the same clerk) was influential in writing the following paragraphs in the per curiam decision:

in the context of all of the evidence in this case, including the myriad of other inconsistencies in his stories, any error was harmless as far as this habeas corpus proceeding is concerned. See Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993).

Of the same ilk are Leavitt’s ululations about the prosecutor’s comment on the fact that a wholly new blood story surfaced at trial. When speaking to the police, Leavitt indicated that he had no idea how his blood could have been found at the murder scene, but by trial he had developed a wholly inconsistent explanation of its presence — the nosebleed scenario. His jeremiad about the prosecutor’s exploration of his revenant memory avails him nothing. That surely was proper impeachment. See Anderson, 447 U.S. at 408-09, 100 S. Ct. at 2182; United States v. Harris, 726 F.2d 558, 559-60 (9th Cir. 1984). It underscored his lies as well as his actual lack of cooperation. Then there was the cut on Leavitt’s finger where, again, his trial explanation differed radically from his pretrial explanation. Again, his hope that he could misdirect the police investigation and claim cooperation at the same time must die aborning. See id.; Phelps v. Duckworth, 772 F.2d 1410, 1412-13 (7th Cir. 1985).

In a slightly different vein, Leavitt complains of the prosecutor’s showing that of all of the suspects, only Leavitt had refused to give a blood sample voluntarily. Leavitt asserts that it was improper to comment on the exercise of his right under the Fourth Amendment to the United States Constitution to refuse to consent to a search. We have indicated that, taken by themselves, comments on the exercise of one’s Fourth Amendment rights are improper. 15 See United States v. Prescott, 581 F.2d 1343, 1350-52 (9th Cir. 1978); United States v. Taxe, 540 F.2d 961, 969 (9th Cir. 1976); Newhouse v. Misterly, 415 F.2d 514, 518 (9th Cir. 1969). But, again, Leavitt’s argument is misdirected. Regardless of whether that Fourth Amendment rule should generally apply to habeas corpus cases, Leavitt’s particular objection is answered by the much more banal and obvious rule that admission of the evidence was proper to attack his claim of cooperation. See United States v. McNatt, 931 F.2d 251, 257-58 (4th Cir. 1991). Before there was ever any mention of the blood test, Leavitt had already launched himself on his theme of cooperation. The prosecutor was entitled to question that theme by showing that the leitmotiv was actually one of resistance. Again, we find no error.

Richard Leavitt was executed by the State of Idaho on June 12, 2012. The above 2004 case was reversed in part and affirmed in part, remanded for resentencing, and the case continued eight more years. The Idaho Statesman two days before the execution revisited the “Devastating death scene left by Richard Leavitt in 1984“. The execution was reported by the LATimes and HuffPo. HuffPo included link to a news report from a week before the execution with some video clips of lawyers arguing for a stay of execution – notice eight years later they are still arguing about the blood samples. Twenty-eight years of appeals since 1984 and then they finally executed sentence (I believe the term of art for that kind of due process diligence is “with all deliberate speed” See Brown v. BOE).

Apparently, for Judge Fernandez, “revenant” seems to be something fabricated; fictitious assets as “revenant securities”, presumed perjury as “revenant memory”. Note connection to other rhetoric of ‘creative accounting’ and of modern neuroscience theories suggesting all human memories are refabrications (recall the Zombie Marcel Proust).

Early this year, January 2012, at the U.S. Court of Appeals for the Third Circuit, in opinion by Circuit Judge Jordan, the appellate court affirmed the decision of District Judge Kim R. Gibson, sentencing Jerry Jay Jones to “72 months’ imprisonment for distributing less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841, and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).” United States v. Jones, 458 Fed. Appx. 203 (3rd cir. 2012).

“Jones pleaded guilty to both counts of the indictment,” but apparently didn’t expect such a harsh sentence. At issue on appeal is the report of the probation that included “a four-level enhancement to his sentence for possessing a firearm in connection with drug trafficking offense” (the connection of the gun to the marijuana is challenged) and “three criminal history points after accepting the PSR’s conclusion that he was incarcerated in connection with another offense during the relevant fifteen-year time period.” Addressing the enhancement for criminal history recidivism within the 15 year period, the court uses the word “revenant” but they obviously meant “relevant”. Is this mere scrivener’s error or a ghost in the clerk’s spell-check program? There seems no other explanation for this Court’s conclusion:

There is, however, ample evidence in the record to have allowed the District Court to conclude that Jones was imprisoned within the revenant fifteen-year period for the 1991 offenses.

Most recently, May 29, 2012, we finally see a “veritable revenant” in Federal Court. In USA v Ingrel Estiel Ortega-Galvan, 682 F.3d 558, before Judges Posner, Sykes and Tinder of the US Court of Appeals for the Seventh Circuit, the Court again examines sentencing guidelines. The opinion is by Judge Posner (recall from prior ZombieLaw post: Judge Posner’s evil zombies are corporation investor frauds). In this case, Judge Posner explains:

In this appeal from a 41-month sentence for entering the United States without authorization after having been removed, 8 U.S.C. § 1326(a), we consider whether and when a district judge can reduce a defendant’s sentence upon discovering an error in an earlier conviction of the defendant, a conviction that if left undisturbed would support the higher sentence.

The error discovered was based on convictions for “criminal sexual abuse for having had sex with a 13-year-old girl.” That doesn’t make him particularly sympathetic, but he came to the US from Mexico as a child and the claim is that his public school records were wrong about his age. If corrected, he was only 16 at the time of the sexual abuse and not old enough for the crime to have been a felony. Under Federal sentencing guidelines, this is a “violent felony under the guidelines” because the guidelines consider all “forcible sex offenses” to be “crime of violence”. This single instance of statutory rape and, of course, his decision to return to the U.S. after removal, (plus possessing some marijuana), resulted in a sentence of 41 months.

The probation service calculated the defendant’s criminal history as a category IV. The combination of a total offense level of 21 and a criminal history category of IV yielded a guidelines range of 57 to 71 months of imprisonment. Had it not been for the sexual felony, the defendant’s criminal history category would have been only II (based on a burglary conviction and a conviction for possession of marijuana), and his guidelines range (given his total offense level of 21) would have been 41 to 51 months instead of 57 to 71.

But there is a novel twist. According to the defendant’s Mexican birth certificate, which the government concedes is authentic, he was only 16 when he committed the sex offense, and so he should have been convicted of a misdemeanor, not a felony. His lawyer asked the district judge to eliminate the 16-point felony enhancement from his total offense level and also eliminate the felony from his criminal history. These two adjustments would have brought his guidelines range from 57 to 71 months down to 0 to 6 months. The judge refused to make the first adjustment, but made the second, reducing the defendant’s guidelines range to 41 to 51 months; and she sentenced him at the bottom of it.

The appeal argues that she should have given the defendant a lower sentence, first because having come to the United States as a small child he is culturally American, not Mexican, and so will experience more than the usual hardship if he is exiled to Mexico. That is a bad argument, properly rejected by the district judge. It is his attachment to the United States that incites his illegal returns after removal, so that attachment is as strong an argument for a longer sentence as for a shorter one. It is true that the guidelines say that HN3Go to this Headnote in the case.”there may be cases in which a downward departure may be appropriate on the basis of cultural assimilation.” U.S.S.G. § 2L1.2 Application Note 8. But a recidivist returner, convicted as the defendant in this case was of a crime upon his return to the United States (he was convicted of possessing marijuana after his second illegal return) is not an appealing candidate for such consideration.

His second argument is that the judge should have made both adjustments to the guidelines range that he requested—reducing his total offense level as well as placing his criminal history in the lower category—on the authority of HN4Go to this Headnote in the case.18 U.S.C. § 3553(a), which lists factors that a judge must consider in sentencing if asked to do so, notwithstanding the guidelines. The argument rests on a misunderstanding. HN5Go to this Headnote in the case.The regime created by the Booker decision, which greatly enlarged the sentencing discretion of federal district judges, allows a sentencing judge to give a sentence outside the guidelines range if persuaded by factors listed in section 3553(a) that a higher or lower sentence would be more appropriate. But the judge must first compute the guidelines range correctly, and only then decide, on the basis of a weighing of the statutory factors, whether to give a sentence outside the range. Pepper v. United States, 131 S. Ct. 1229, 1241, 179 L. Ed. 2d 196 (2011); Kimbrough v. United States, 552 U.S. 85, 108, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007) (“district courts must treat the Guidelines as the ‘starting point and the initial benchmark,'” quoting Gall v. United States, 552 U.S. 38, 49, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007)); United States v. Hill, 645 F.3d 900, 905 (7th Cir. 2011).

Judge Posner further explains that the District Judge sentence was in fact below the guidelines. And so: “Obviously the judge did not feel bound by the guidelines, because she sentenced the defendant below the guidelines range. (The base of the range was 57 months; she sentenced him to 41.)” Particularly Judge Posner suggests that the nature of the defendant’s crime itself (disobeying a US immigration order of removal) makes it unsurprising that the District Judge would not reduce to a much lower sentence.

It seems he doesn’t take removal seriously. He is an immigration yo-yo, see United States v. Carlos-Colmenares, 253 F.3d 276, 279 (7th Cir. 2001), a veritable revenant. The zero imprisonment would merely confirm him in his belief already demonstrated that he needn’t take seriously the crime of unauthorized entry by a previously removed alien. The judge made clear that the risk of further illegal returns was the decisive consideration in her decision to give him a significant prison sentence.

Those seem like harsh words for someone who just wants to come back to the country they were raised; somewhat dehumanizing to call a man a “yo-yo” and a “reverent”. But by Posner’s analysis the proper sentence should have been between 57 and 71 months, so “the judge erred [by being too lenient] in tinkering with the guidelines range, [but] the error was harmless. She gave the defendant the sentence she wanted to give him irrespective of the guidelines, and the sentence is consistent with sections 3553(a) and 3661 of the Criminal Code”

There is nothing illogical or unreasonable—nothing inconsistent with the broad and vague standard of section 3553(a)—about giving a defendant a below-guidelines sentence because his guidelines range had been elevated as the result of an erroneous conviction.

but

invoking the broad sentencing discretion restored by the Booker decision, to peek behind a conviction used in calculating a guideline range and upon finding the conviction defective—though as in this case it has not been challenged in a proper collateral proceeding—to discount its significance, which is equivalent as we said to a partial vacation of the conviction, rubs against the limitations on collateral attack on state convictions.

Sentence affirmed. Ingrel Estiel Ortega-Galvan brought to the US by his family in 1991, now sentenced to over three years in Federal prison because his public school records had the wrong birthdate when he had a sexual encounter with a teenage girl only three years younger than he; or more directly, incarcerated for returning to the country after being ordered removed.

Fin! That’s all folks..

“Revenant” in the U.S. Courts; a Spanish treaty, two French Cajun contracts, persistent Florida agriculture litigation, a dissenting attack on the majority’s interpretation, a potential fraud discovered too late, an overturned jury verdict given credence by a different court, dubious securities, fabricated or non-credible memory, an obvious Court typo, and a criminalized immigrant. In a sense these are all amongst the usual suspects for the typical ghosts that haunt American law,

Also, as mentioned earlier, this set of “revenant” cases has nice bookends. Both the first and last case regard something to do with Spanish language and more poignantly, both involve international rights of border crossing and returning. The 1821 the case was about privateer-pirates, the 2012 case is about a child alien.

For similar work return to ZombieLaw posts on “Walking Dead” in the Federal Courts and “Undead” in the Federal Courts or for a similar-style collection of a different character see NinjaLaw: “Ninja” in the Federal Courts.

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3 Comments
  1. Revenants are more of a ghoul and vampiric descent rather than zombie descent.

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