Thursday, September 18, 2014

United States v. Garcia, No. 12-10189 (Rawlinson with Tallman & Garbis (D. Md.) ---

The Ninth Circuit affirmed a conviction for using a pipe bomb to damage an SUV and an apartment building, in violation of 18 U.S.C. § 844(i), holding that the Supreme Court's per se rule that damage to a rental apartment building automatically supplies jurisdiction under the Commerce Clause, see Russell v. United States, 471 U.S. 858 (1985), was not abrogated by the decision in United States v. Morrison, 529 U.S. 598 (2000).  There was testimony at the trial that the SUV was manufactured in Wisconsin and that people sometimes traveled from out of state to rent apartments in the building.  The bomb thus damaged things that affected interstate commerce.  Thus the evidence was sufficient to sustain the conviction, the jury instructions based on the per se rule were proper, and Russell foreclosed the defendant's facial challenge to § 844(i).

The decision is here:

Sunday, September 14, 2014

Case o' The Week: Ninth Clears Way for More Hearsay - the Forfeiture Doctrine and Antoine Johnson

 “More likely than not.”
  Close enough, for Ninth, in disappointing new decision of first impression on the “forfeiture exception” to the Sixth Amendment. United States v. Antoine Lamont Johnson, 2014 WL 4473957 (9th Cir. Sept. 12, 2014), decision available here.

Players: Decision by Judge Schroeder, joined by Judge Clifton and D.J. Tunheim. Hard-fought appeal by SD Cal Defender alumni Ben Coleman and ND Cal CJA Attorney Ethan Balogh.

Facts: Antoine Lamont Johnson (with an unfortunate a.k.a. of “O Killer”) and Williams were convicted of armed robbery and murder, arising from the robbery of an armored truck. Id. at *1. At trial, the government introduced several out-of-court statements of an informant, Veronica Burgess. Id. She had come to police, explained she overheard the gang members planning the heist, and identified Johnson (and later, Williams) in photo spreads. Id. The government couldn’t locate her before trial, and argued that Johnson had threatened Ms. Burgess to prevent her from testifying. Id. at *1-*2. Burgess began receiving threats from gang members the day after defense counsel were permitted to disclose witness identities to the defendants. Id. at *2. The government argued that Johnson – who was in the SHU – had the ability to communicate through outside gang members through kites, and argued that the wording of the threats tied Johnson to the threatened witness. Id. 
  Defense counsel countered that other suspects had motives to threaten Burgess, and that Burgess had recanted her story to a private investigator. Id. The defense argued that the government had not shown by clear and convincing evidence that Johnson had made Burgess unavailable: the district court found the government had shown this link by a preponderance of evidence under FRE 804, and admitted the hearsay. Id. 
  Both Johnson and Williams were convicted and received life sentences. Id. at *3.

Issue(s): “This criminal appeal presents an issue of first impression for our circuit, post-Crawford.Id. at *1. “The issue concerns the so-called ‘forfeiture exception’ to the Confrontation Clause of the Sixth Amendment. That exception applies when the defendant is responsible for the witness being unavailable. We must decide whether proof of the defendant’s responsibility for the witness’s absence must be shown by a preponderance of the evidence, as provided by Rule 804(b)(6) of the Federal Rules of Evidence, or, in light of Crawford and its progeny, by clear and convincing evidence.” Id.

Held:With respect to the forfeiture exception, we join the circuits that have decided the issue since Crawford in holding that the standard has not changed and the provisions of the Rule continue to apply.” Id.

Of Note: This disappointing decision continues a Circuit split, with the Fifth (?!?) Circuit offering greater evidentiary protections than the Ninth. See id. at *4 (discussing United States v. Thevis). Ironically, “clear and convincing evidence” has traditionally been used in civil cases, regarding issues such as civil fraud or lost wills where a party is suspected of foul play. See Woodby v. INS, 385 U.S. 276, 287 & n.18 (1966). 
  It seems unfair that this lower preponderance standard for forfeiture eludes Crawford’s protections in the criminal context. It seems particularly unfair when the (hearsay) informant in this case had real credibility problems, and there was not clear and convincing evidence that Johnson was in fact responsible for Burgess’s unavailability.

How to Use: Preponderance ain’t much, but note that it still has to be proved. Judge Schroeder distinguishes a Second Circuit decision where the government had failed to explain how the incarcerated defendant intimated the witness. Id. at *7. In Johnson, the government offered a prison guard who claimed he saw the defendant passing kites – thereby showing a means of getting threats out of the jail. Id. 
  Don’t give up when faced with forfeiture as a hearsay exception, without forcing the government to prove this essential link.
For Further Reading: It isn’t enough to kill a witness – a defendant has to kill the witness with the intent of quieting the victim, for the forfeiture doctrine to kick in. See Giles v. California, 554 U.S. 353 (2008). A Texas prosecutor has penned a helpful piece explaining this intent requirement for the forfeiture exception. See “The forfeiture by wrongdoing doctrine nine years after Crawford, available here.

Image of the Hon. Senator Charles Schumer with “Snitches Get Stiches” T-shirt from

Steven Kalar, Federal Public Defender ND Cal. Website at


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Wednesday, September 10, 2014

Today's two decisions, both divided, involve the timeliness of a federal habeas petition under 28 U.S.C. § 2254.  A California petitioner wins under the terms of 28 U.S.C. § 2244(d)(1), while a Nevada state prisoner loses under equitable tolling.

McMonagle v. Meyer, No. 12 15360 (Duffy, DJ (SDNY), with Thomas; dissent by Rawlinson) ---
The statute of limitations that applies to federal habeas petitions doesn't begin to run until the case becomes final by the conclusion of "direct review."  In California, those convicted of misdemeanors can obtain direct review as of right in the Appellate Division of the Superior Court.  Review by higher courts -- the California Court of Appeal and the California Supreme Court -- is discretionary, and is sought by first asking to transfer the case from the Appellate Division to the Court of Appeal, then later by state habeas in the California Supreme Court.  Are these last two steps part of "direct review" for a misdemeanant convicted in a California state court?  The majority says it is, while the dissenting judge says it's not.

Lurking in the background is another habeas requirement, the rule that demands that exhaustion of state-court remedies. No one doubts that exhaustion demands that the misdemeanant present his claims to the California Supreme Court.  The question that divides the panel is whether, in light of California's procedure in misdemeanor cases, the statute of limitations should begin to run before the petitioner exhausts his state-court remedies.  For the majority, the answer is no, because there is only one path to the state supreme court that's available in misdemeanor cases.  For the dissent, the answer is yes, because state law doesn't treat the mechanisms for review in the court of appeal and the state supreme court as "direct review."  But the dissent ignores a critical aspect of the exhaustion doctrine: A state can declare that certain steps are not part of the mechanism for seeking appellate review, as Arizona has by expressly holding that seeking discretionary review in the state supreme court is not a requirement for exhaustion.  See Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999) (per curiam).  The dissent didn't identify any similar statement from the California Supreme Court, which supports the majority's characterization of the trip to the state supreme court as "direct review" in misdemeanor cases.

The decision is here:

Rudin v. Myles, No. 12-15362 (Murguia with O'Scannlain; dissent by Adelman, DJ (E.D. Wis.)) ---
This case is about punishing a prisoner for a single mistake made by her fourth lawyer, because four lawyers' mistakes are too many to forgive. Even if state post-conviction counsel abandons the petitioner within the meaning of Holland v. Florida, 560 U.S. 631 (2010), the diligence prong of the equitable-tolling doctrine requires her to file a protective federal habeas petition as soon as she discovers the abandonment -- even if the federal habeas limitations period has already expired. 

The Las Vegas Sunhas said that the crime in this case was "noteworthy at the time in part because after Margaret Rudin reported her husband missing, his decapitated, burned and bullet-ridden body was found at Nelson’s Landing on the Colorado River south of Las Vegas."  The trial lasted ten weeks, in part because the lawyer she hired to defend her was woefully unprepared to try the case.  The trial court appointed second-chair counsel, who described the representation as "a sham, a farce, and a mockery."  The state supreme court affirmed the conviction on direct appeal in 2004, deferring her claims of ineffective assistance of counsel to state habeas.

State habeas proceedings began with a protracted comedy of errors.  The trial judge recused himself from post-conviction proceedings after telling the Las Vegas Sun, "My blood boils every time I hear the name Craig Creel," the lawyer who represented the petitioner on direct appeal.  A different lawyer had been appointed to the state habeas case, but he did nothing on it for almost two years.  Meanwhile, the court rejected the petitioner's attempts to file papers on her own behalf, then labored under the mistaken impression that there was a formal petition pending before it -- an impression that the state apparently shared during that time.  The petitioner got frustrated and complained to the court that her lawyer wasn't adequately representing her.  Indeed, he stopped visiting her in prison and blocked collect calls to his office telephone. 

The court appointed a new lawyer to the state habeas case in July 2006, and the new lawyer filed a formal state habeas petition a year later.  The court excused any late filing as Nevada law allowed, and later granted relief and ordered a new trial.  The state appealed the grant of state habeas relief to the Nevada Supreme Court, arguing for the first time that the state habeas petition was untimely.  In 2010 the state supreme court agreed and reversed the grant of relief in an unpublished decision.  Nearly a year later, the petitioner filed a federal habeas petition for the first time.  The district court denied the petition as untimely.  The Ninth Circuit certified the timeliness question for appeal, and then affirmed. 

First, the Ninth Circuit held that the petitioner was not entitled to statutory tolling.  The Nevada Supreme Court had concluded that the state habeas petition was untimely, which meant that it was not "properly filed" under 28 U.S.C. § 2244(d)(2) and Pace v. DiGuglielmo, 544 U.S. 408 (2005). 

Second, the Ninth Circuit held that the petitioner was not entitled to equitable tolling.  Equitable tolling requires a showing of extraordinary circumstances and diligence.  The court first agreed, under Holland v. Florida, 560 U.S. 631 (2010), that the petitioner had been abandoned by her first state habeas lawyer.  It also said she was diligent in pursuing her rights while the first lawyer was on her case, because she attempted to file pro se documents during that time.  But the court held that she was not diligent during the period when her second state habeas lawyer was representing her.  Once her second lawyer learned that no state habeas petition had ever been filed on her behalf, she (or her counsel, who continued to represent her in federal court) should immediately have filed a protective federal habeas petition.  Because the petitioner had offered no "compelling reason" for failing to do so, she was not entitled to equitable tolling.

"At this point," the majority said, washing its hands of the consequences of its decision, "Rudin is still in prison, having served 13 years of her life sentence for murder.  We know from the state post-conviction court that the State's proof of guilt at that trial was not a slam dunk by any stretch of the imagination.  We also know from the post-conviction court that, had Rudin been represented by competent counsel, the jury's verdict may have been different.  Thus, what we do not know is whether Rudin is lawfully imprisoned.  And, regrettably, that is something we may never know."

In dissent, District Judge Adelman said that this was "a compelling case for equitable tolling."  If the state habeas court had accepted her pro se filings, she would have received statutory tolling for the time her case was in state habeas.  And she had no reason to file a protective federal habeas petition, because she thought (as did the state habeas judge and the state's lawyers) that a state habeas petition had been filed.  And by the time she found out that no petition had been filed, both the state and federal habeas deadlines had passed.  "It would have been pointless for Rudin to file a 'protective' habeas petition pursuant to Pace because, unlike in Pace, there was nothing to protect."  Moreover, the state's lawyers were not pursuing a time-bar defense in the state habeas trial court, which might have led her to believe that they would not do so in federal court -- another reason not to file a protective federal petition.  And she did not need to file one while the state appealed the grant of state habeas relief.  "If ever there was a case in which the deadlines need to be relaxed to avoid a miscarriage of justice, this is it."

One final comment on this case; the state neglected to submit the entire state-court record to the district court along with its answer.  Before the Ninth Circuit, the state moved to supplement the record on appeal with the remaining portions of the state-court record.  The panel denied this motion, deeming the documents unnecessary to its resolution of the appeal.  The better approach to this situation would be simply to submit the documents to the court of appeals, citing 28 U.S.C. § 2254(g) and Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997) ("Where review of the entire state court record is necessary and the parties have failed to supply the court with that record, the district court has the duty to obtain that record itself.").

The decision is here:

Sunday, September 07, 2014

Case o' The Week: Ten Too High, in Ninth Eyes - Hardrick and Child Pornography, 404(b), and Sentencing

Hon. Stephen Reinhardt

“I do not profess to know the solution to the problem of how to cure the illness that causes otherwise law-abiding people to engage in the viewing of child pornography. I know only that lengthy sentences such as the one in this case, ten years (and below the guidelines at that) for a first offense, cannot be the answer.”
  United States v. Hardrick, 2014 WL 4358467, *6 (9th Cir. Sept. 4, 2014) (Reinhardt, J., concurring), decision available here.

Players: Decision by Judge Murguia, joined by Judges Reinhardt and Noonan. Notable concurrences by Judges Reinhardt and Noonan.

Facts: Agents i.d.’ed two IP addresses in Hardrick’s home associated with child porn. Id. at *1. Two seized computers each contained child porn videos. Id. Hardrick admitted to agents he used Limewire to download porn, but disclaimed knowingly downloading child porn. Id. He went to trial on two counts of knowing receipt. Id. The district court denied Hardrick’s motion to exclude uncharged child porn videos, finding them admissible under FRE 404(b). Id. Two videos were played to the jury: an agent testified that other vids found on both PCs (not admitted) were child porn. Id. at *2. Hardrick was convicted and sentenced ten years. Id. at *3.

Issue(s): “Harrick challenges the admission at his trial of evidence that he possessed other child pornography videos for which he was not charged.” Id. at *1. “Hardrick argues on appeal (1) that the district court abused its discretion in its balancing of the probative value of the uncharged-video evidence against the danger of unfair prejudice to him, and (2) that the district court erred by giving an insufficient limiting instruction on the 404(b) evidence and by failing to give another limiting instruction sua sponte when the 404(b) evidence was admitted into evidence.” Id. at *3.

Held: “The district court’s determination that the probative value of the 404(b) evidence outweighed the danger of unfair prejudice to Harrick was not an abuse of discretion.” Id. “[T]he district court limited the videos’ prejudicial effect by permitting the case agent to provide only ‘brief commentary’ on the location and file names of the other videos and not permitting the government to show the videos to the jury.” Id. “The district court also gave a limiting instruction at the close of the evidence.” Id. “We conclude that the district court properly exercised its discretion when it admitted the evidence of the uncharged child pornography videos found on Hardrick’s computers.” Id. at *4.

Of Note: Judges Reinhardt and Noonan concur, but write separate concurrences to flag the injustice of a ten-year sentence for someone convicted of receiving and viewing child pornography. See id. at *5 (Reinhardt, J., concurring in opinion, opining that psychological treatment rather than long prison sentences may be better approach); id. at *6 (Noonan, J., concurring in opinion, opining that the gov’t should advertise penalties to advance deterrence).
   These concurring judges are in good company: the Sentencing Commission has flagged child porn sentencing as one of its priorities. For the comments of the Federal Defenders on Child Porn sentencing, see letter here. (“The feedback from the courts continues to be loud and clear that guidelines for child pornography offenses are broken.”)

How to Use: Judge Murguia also rejected a challenge to the sufficiency of the evidence. Id. at *5. A gov’t forensic experts had testified that the child porn was downloaded into different locations on the same computer – something a virus or Trojan horse would be unlikely to do. Id. at *5. Location matters – Hardrick worth a close read when considering forensic defenses to these cases.
For Further Reading: What’s up with drug resentencing? Well, while the DOJ has received the names of eligible candidates from the Sentencing Commission, Defenders have not (!?!). The Commission will hopefully distribute names to the defense soon. A reminder on timing: no court can take action on a resentencing until Nov. 1, 2014, and no inmate can be released until Nov. 1, 2015. See USSC Press Release here
    It has been estimated that roughly 100 ND Cal inmates will be eligible for relief on 11/1/15 – although we’re awaiting final figures. For a helpful summary on retroactivity, see the Commission’s primer here.

Image of the Honorable Judge Reinhardt from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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