Thurgood Marshall U.S. Courthouse at 40 Foley Square
Thurgood Marshall U.S. Courthouse at 40 Foley Square (Bjoertvedt/Wikimedia)

The full U.S. Court of Appeals for the Second Circuit has decided, by a close vote, not to rehear a decision throwing out a Hobbs Act robbery conviction because the defendant was high on Xanax when he incriminated himself in statements to police.

By a 7-6 vote, the circuit denied rehearing en banc Friday United States v. Taylor, 11-201—a case that prompted Judge Jose Cabranes to explain why the Second Circuit holds the fewest en banc rehearings of the nation’s circuits.

In December 2013 and in a petition for rehearing decided in March, Judges Amalya Kearse, Dennis Jacobs and Susan Carney held that the post-arrest statements of defendant Curtis Taylor were not voluntary. The three-judge panel vacated the convictions of Taylor and co-defendants Antonio Rosario and Samule Vasquez for conspiring to commit a Hobbs Act robbery, brandishing a firearm during a crime of violence and other offenses during a robbery of a Manhattan pharmacy on Christmas Eve in 2008.

Jacobs wrote for the court, saying that Taylor, who had taken Xanax in an apparent suicide attempt prior to his arrest, was impaired throughout questioning, “and his interrogators took advantage of that impairment by continuing to question him.”

Jacobs said the statements were not voluntary, and even though Taylor was in better condition the next day, waived his Miranda rights and gave more statements incriminating himself and his codefendants, the second-day confessions were tainted by those obtained a day earlier.

“This is a close case,” Jacobs said. “But even assuming that Taylor’s initial waiver of his Miranda rights was knowing and voluntary, Taylor was largely stupefied when he made his post-arrest statements, as confirmed by the testimony of the law enforcement agents and pretrial services office who interviewed him, and by the evaluations of staff psychologists at the Metropolitan Correctional Center.”

On Friday, Judge Reena Raggi wrote for the six dissenters who felt the full circuit should have reheard the appeal en banc, saying the initial panel’s “troubling legal analysis rests on a suspect factual characterization of defendant Curtis Taylor’s condition at the time of the challenged confessions.”

The panel, she said, “reaches the paradoxical conclusion that a defendant who acted knowingly and voluntarily in waiving his Miranda rights could not have acted knowingly and voluntarily in responding to ensuing police questions.”

“Why?” she asked. “Not because of any abusive police tactics—the panel concedes there were none—but rather because the defendant was so sleepy that he occasionally dozed off after the interview.”

Raggi was joined in dissent by Judges Cabranes, Richard Wesley, Peter Hall, Debra Ann Livingston and Christopher Droney. Voting against rehearing were Judges Robert Katzmann, Rosemary Pooler, Gerard Lynch, Denny Chin, Raymond Lohier, Jacobs and Carney.

Cabranes penned his own opinion agreeing that the original panel’s decision “defies not only our own case law, but controlling Supreme Court precedent.” He also wrote about the reasons why “our court hears the fewest cases en banc of any circuit by a substantial margin, both in absolute terms and when considering the relative size of our docket.”

According to statistics from the Administrative Office of the U.S. Courts, for the 12-month period ending on Sept. 30, 2011 there were 51 appeals nationwide terminated following oral argument at en banc rehearing. The Ninth Circuit easily led the way with 19, the Fifth Circuit had nine, several had two, three or four, but the First and Second Circuits had none.

The following year, the Second Circuit was the only circuit in the nation not to have an appeal terminated on the merits following en banc oral argument, when there were 53 total in all circuits. Nor did it have a termination in the period ending on Sept. 30, 2013, when there were 41 nationwide.

Cabranes said a judge’s vote to deny rehearing en banc, without saying more, “does not necessarily mean either that a case lacks significance or was correctly decided.”

The Second Circuit’s tradition runs back to Judge Learned Hand, who promised he would never vote to convene en banc, and continued with Judge Irving Kaufman, who wrote in 1973 that he was voting against en banc rehearing to “wisely speed this case on its way to the Supreme Court as an exercise of sound, prudent and resourceful judicial administration.”

“This view has perdured,” Cabranes said, “leaving open the possibility that some judges in the majority in any particular case may have voted against en banc rehearing precisely because of the importance of the legal questions at issue.”

He also cited Judge Jon Newman, who believes in the “virtues of restraint,” which include judicial economy and collegiality, and current Chief Judge Katzmann who recently described “our circuit’s long-standing tradition of general deference to panel adjudication—a tradition which holds whether or not the judges of the court agree with the panel’s disposition of the matter before it.”

Cabranes said that “Judge Kaufman argued, in a related vein, that en banc proceedings threatened the ‘institutional integrity of the appellate court and the three-judge panel’ because they send the message that ‘decisions reached by three-judge panels are not final, but represent merely one step on an elongated appellate ladder.’”

And, Cabranes said, in 2001, then-Chief Judge John Walker “urged an approach to en banc review ‘that holds in reserve for the exceptional case that is an unlikely candidate for Supreme Court resolution.’”

“Accordingly, a reader should not attempt to ascertain the substantive views of particular judges in the majority (or even, in some circumstances, the unsuccessful minority) from a decision not to rehear a case en banc,” he said.

So “all one can know for certain about a vote in cases like this one” in the Taylor appeal, “is that seven active circuit judges did not wish to rehear this case, while the six other active judges strongly believed that the panel opinion presented multiple legal errors of exceptional importance warranting correction.”