Sunday, December 16, 2018

Case o' The Week: Convictions resist a battery of challenges - Kirkland and "Explosive Devices"

  “Batteries not included."
   Ruins Christmas mornings.
  (Convictions? Not so much).

United States v. Kirkland, 2018 WL 6186513 (9th Cir. Nov. 28, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judges Fisher and Friedland. Hard-fought appeal by former CD Cal AFPD Carl Gunn.

Facts: Cops found a box when they searched Kirkland’s home. It contained a radio frequency receiver that could be used to detonate a device, a detonator, and shotgun shells that could provide an explosive charge. Id. at *1. Missing were eight batteries needed to make a functional bomb. Id. At trial, a government expert testified that the box could be made a bomb in minutes, by inserting batteries and by connecting the detonator. Id. Kirkland was convicted of being a felon in possession of a destructive device, and of possessing an unregistered destructive device. Id.

Issue(s): “On appeal, Kirkland challenges the sufficiency of the evidence to support his convictions, on the ground that the device he possessed does not qualify as a ‘destructive device.’ He also argues that his sentence should not have been enhanced under the ‘destructive device’ provision of the Sentencing Guidelines, U.S.S.G. § 2K2.1(b)(3)(B), as that enhancement turns on the same definition of ‘destructive device.’” Id. “He challenges only the sufficiency of the evidence to support the jury’s finding that he possessed a combination of parts ‘from which’ an explosive bomb could be ‘readily assembled.’ In his view, a conviction under subsection (C) requires proof that the defendant possessed every component necessary to construct a functional weapon. Under Kirkland’s reading of the statute, he would be entitled to a judgment of acquittal because the device in question needed eight C-cell batteries to operate, and the government did not introduce any evidence establishing that he possessed such batteries.” Id. at *2.

Held: “We do not think the statute can be read in the manner urged by Kirkland. Nothing in the text of § 921(a)(4)(C) states that a defendant must possess every component necessary to render a partially constructed device capable of detonating. The statute requires only that the defendant possess a combination of parts from which a functional device ‘may be readily assembled.’ As used in this provision, the term “readily” means quickly and easily: The combination of parts possessed by the defendant must be capable of being assembled into a functional device within a short period of time and with little difficulty—measures that may depend on the expertise of the defendant constructing the device. That requirement does not categorically exclude situations in which the assembly process entails the acquisition and addition of a new part.” Id.
  “At the end of the day, regardless of which components are missing from the device, the ultimate question will be the same: Can the missing parts be obtained quickly and easily, and if so, can they quickly and easily be incorporated to render the device functional?” Id. at *3.

Of Note: Gunn’s at war. More specifically, the Ninth contends that Carl Gunn’s urged interpretation was “at war with Congress’s purpose” in enacting the “combo of parts” provision of this statute. Id. at *3.
  Maybe so, maybe not, but – as the defense warned -- this decision leaves “intractable line-drawing” problems for future cases. If this box had batteries, but no detonator, would that be a bomb that is “readily assembled?” What if it was missing the radio frequency receiver? What if the parts were, but it had not been wired?
  All of these scenarios are now “inherently factbound issues that juries will have to resolve on a case-by-case basis.” Id. at *3.

How to Use: Judge Watford flags an important exception to the Kirkland holding: a destructive device needs explosive material. Id. at *3. That wasn’t at issue here, because the shotgun shells were the explosive component of this device. Id.  
  Note this important Kirkland exception to the bits and bobs theory of conviction: a bomb needs something that goes boom.
For Further Reading: Will President Trump’s appointments remake the Ninth? Perhaps less than is assumed. 
  For an interesting article on the actual numbers, see a Brookings report here

Image of “batteries not included” from

Steven Kalar, Federal Public Defender Northern District of California. Website at



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Sunday, December 09, 2018

Case o' The Week: First on the First in the Ninth - Sineneng-Smith and First Amendment Overbreadth

“Anyone not paranoid in this world must be crazy. . . . 
  Speaking of paranoia, it's true that I do not know exactly who my enemies are. But that of course is exactly why I'm paranoid.” 
  ― Edward Abbey, Postcards from Ed: Dispatches and Salvos from an American Iconoclast
The Honorable Judge Wallace Tashima
“[W]e cannot take the government’s word for how it will enforce a broadly written statute . . . any would-be speaker who has thought twice about expressing her views on immigration was not being paranoid.” 
  United States v. Sineneng-Smith, 2018 WL 6314287, at *11 (9th Cir. Dec. 4, 2018), decision available here

Players: Important First Amendment decision by Judge Tashima, joined by Judges Berzon and Hurwitz.
  Huge win for, among many others, Chief Deputy FPD Stephen Sady and R&W Attorney Lisa Ma, D. Oregon FPD, and Carmen Smarandoiu, Appellate Chief, N.D. Cal FPD, for Amicus Curiae Federal Defender Organizations of the Ninth Circuit.  

Facts: Sineneng-Smith ran an immigration firm that assisted clients applying for “Labor Certifications” and green cards. Id. at *2. Retention agreements explained that the goal was to assist clients to “obtain permanent residence through Labor Certification.” Id. Unfortunately, that path to permanent residence ended, yet the retention agreements for these aliens continued for seven years. Id.
  Sineneng-Smith was charged with, among other things, 8 USC § 1324(a)(1)(A)(iv) and § 1324(a)(1)(B)(i): “encouraging or inducing an alien to reside in the country, knowing and in reckless disregard of the fact that such residence is in violation of the law.” Id.
  Her pretrial First Amendment motion to dismiss was denied, and she was convicted after trial. Id. After the case was first argued on appeal, the panel invited amici briefing. Id.

Issue(s): “Section 1324(a)(1)(A)(iv) (‘Subsection (iv)’) permits a felony prosecution of any person who ‘encourages or induces an alien to come to, enter, or reside in the United States’ if the encourager knew, or recklessly disregarded ‘the fact that such coming to, entry, or residence is or will be in violation of law.’ We must decide whether Subsection (iv) abridges constitutionally-protected speech. To answer this question, we must decide what ‘encourages or induces’ means.’” Id. at *1.

Held:We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that ‘encourage’ does not mean encourage, and that a person cannot ‘induce’ another with words. At the very least, it is clear that the statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – ‘I encourage you to stay here.’ The statute thus criminalizes a substantial amount of constitutionally-protected expression. The burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep. Therefore, we hold that Subsection (iv) is unconstitutionally overbroad in violation of the First Amendment.” Id. at *1.

Of Note: The government urged a “strained” interpretation of “encourages or induce” in a bid to save the statute. Id. at *8. Channeling Justice Scalia, Judge Tashima rejects the effort, and adopts a natural reading that would criminalize “encouraging statements” protected by the First Amendment. Id.
  Along the way, Judge Tashima relies on the great Stevens quote: ““[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Id. at *11. 
  A terrific opinion (and an important moment of legal history), Sineneng-Smith merits a close read.   

How to Use: On appeal Sineneng-Smith raised a First Amendment challenge: the panel asked for amicus briefing on an overbreadth claim. The government pleaded for “plain error” review, arguing that the overbreadth claim was waived because it was not raised in the initial appeal. Id. at *3. Judge Tashima rejects the government’s scramble: “Because Sineneng-Smith has asserted a First Amendment claim throughout the litigation, her overbreadth challenge ‘is – at most – a new argument to support what has been a consistent claim.’” Id. at *3. 
  Use Sineneng-Smith to brush back on the government’s pervasive “plain error” pitches.
For Further Reading: As reported earlier, President Trump jumped the gun and erroneously lambasted the Ninth Circuit for an admirable asylum decision by NorCal District Judge Jon S. Tigar (prompting an unprecedented defense by Chief Justice Roberts). See “For Further Reading” available here. 
  The Ninth has now caught up with the tweets. A three judge panel (two Republican-appointed judges, and one Democrat-appointed judge) has unanimously denied the government’s motion for a stay of Judge Tigar’s decision. See article here. 
 (Although, as Chief Justice Roberts has explained, the party affiliation of a federal judge doesn't matter). 

Image of the Honorable Judge Wallace Tashima from

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


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Thursday, December 06, 2018

US v. Sineneng-Smith, No. 15-10614 (12-4-18)(Tashima w/Berzon & Hurwitz). 

The 9th holds that the offense of encouraging and inducing an alien to remain in the US is unconstitutionally overbroad as it violates the First Amendment. The two counts under 8 U.S.C. §§ 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i) cover a substantial amount of protected of First Amendment speech and activity.  The opinion’s introduction states it well:

We must decide whether Subsection (iv) abridges constitutionally-protected speech.  To answer this question, we must decide what “encourages or induces” means. 

The parties have widely divergent views about how to interpret the statute. Sineneng-Smith and several amici contend that encourage and induce carry their plain meaning and, therefore, restrict vast swaths of protected expression in violation of the First Amendment. The government counters that the statute, in context, only prohibits conduct and a narrow band of unprotected speech.

We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that “encourage” does not mean encourage, and that a person cannot “induce” another with words. At the very least, it is clear that the statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – “I encourage you to stay here.”

The statute thus criminalizes a substantial amount of constitutionally- protected expression. The burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep. Therefore, we hold that Subsection (iv) is unconstitutionally overbroad in violation of the First Amendment.

Congrats to Steve Sady and Lisa Ma of the FPD Oregon (Portland) and Carmen Smarandoiu of the FPD Cal N FPD (SF) for their amicus work on behalf of the FPD of the 9th Circuit. Kudos to defense counsel Dan Cook and the many other amici who weighed in.

The decision is here:

Sunday, December 02, 2018

Case o' The Week: Seeing Double? Indictment Trouble - Chilaca and Multiplicity in Child Porn Cases

 Four bites at the apple are three too many.

United States v. Chilaca, 2018 WL 6165235 (9th Cir. Nov. 26, 2018), decision available here.

Players: Great decision of first impression by visiting SD Texas Chief DJ Rosenthal, joined by Judges Judges Hurwitz and Hawkins.

Facts: Chilaca was charged with four counts of possessing child porn. Id. at *1. A search warrant at Chilaca’s home had revealed a PC (that had an internal hard drive) and two separate hard drives – all linked to a Dropbox account that had child porn. Id. 
  He was charged in four counts, that alleged possession of images in the three hard drives and Dropbox. Id. Chilaca’s motion to dismiss multiplicitous counts was denied, he was convicted after a jury trial of all four counts, and received four 66 month (concurrent) prison terms. Id.

Issue(s): “In this appeal, Chilaca contends that his four counts of conviction were multiplicitous and constituted double jeopardy.” Id. 
  “Section 2252(a)(4)(B) makes it a crime for ‘[a]ny person who either knowingly possesses, or knowingly accesses with intent to view, or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction’ of child pornography. 18 U.S.C. § 2252(a)(4)(B). The indictment charged four § 2252(a)(4)(B) violations. The question is whether, under this statute, simultaneous possession of child-pornography images, stored in different media and found in the same location, creates separate ‘allowable units of prosecution.’ Id. at *2 (footnote omitted).

Held:We, like all other circuits that have considered the issue, interpret § 2252(a)(4)(B)’s use of the phrase '1 or more' to mean that the simultaneous possession of different matters containing offending images at a single time and place constitutes a single violation of the statute. This interpretation is consistent with the provision’s plain language and the structure of the statute as a whole.” Id. at *5. 
  “The government does not dispute that Chilaca’s possession of child-pornography images on the separate media was simultaneous and in the same location . . . . The four counts under § 2252(a)(4)(B) charged in the indictment against Chilaca are therefore multiplicitous.” Id. at *5-*6 (citation omitted).

Of Note: Chilaca’s holding of first impression in the Ninth is a great outcome, and one that follows the outcomes of the four circuits that have tackled this question. 
  Of additional interest, however, is Chief District Judge Rosenthal’s harmless error analysis. In retreat, the government threw a “harmless error” Hail Mary. More specifically, the government argued that the multiplicitous convictions should not be touched because Chilaca had received concurrent sentences. Id. at *6. 
  In a thoughtful analysis the Ninth rejects that harmless error argument, distinguishing its ‘06 Kuchinski decision and focusing on Chilaca’s challenge to the convictions. Id. The defense doesn’t get its hoped-for retrial, id. at *7, but the case is remanded for the district court to knock three of the multiplicitious counts and resentence. Id. Chilaca is a valuable “harmless error” decision, with impact outside of this narrow multiplicity context.

How to Use: Can child porn stored on Dropbox be a “unit of prosecution” under Section 2252(a)(4)(B)? The Court in Chilaca carefully notes that neither party contested whether a Dropbox account qualifies as an “allowable unit of prosecution” under this statute. Id. at *2 & n.2. 
  An interesting footnote to mull.
For Further Reading: President Trump and Senator Ben Sasse (Republican, Nebraska) have opined much of late on the Ninth’s reversal rate at SCOTUS. The Ninth, we are told, is “overturned more than any Circuit in the Country, 79%.”

Hon. Sen. Ben Sasse and President Trump

  Meh – as Mark Twain (and others) have observed, there are “lies, damn lies, and statistics.” 
   For a thoughtful discussion of the real figures behind the Ninth's record at the Supremes, see Does the Ninth Circuit Have the Highest Reversal Rate in the Country? available here.

Image of movie poster, “Multiplicity” from

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


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Wednesday, November 28, 2018

US v. Kirkland, No. 16-10514 (11-28-18)(Watford w/Fisher & Friedland).

At what point do parts and pieces become an illegal “destructive device” under § 921(a)(4)(C)?  The test is whether it “may be readily assembled.” This includes acquisition of a part (here 8 C-cell batteries) which causes the device to become operational. The defendant conceded that the homemade device had all the components, including the explosive, except for the batteries. The 9th, in affirming the conviction against a sufficiency challenge, and the sentencing enhancement, concluded the parts to make this operation were readily and easily available.  The defendant’s reading of the statute, requiring all the components to be there, is “at war,” writes the panel, with the purpose of the “combination of parts” provision of the statute.

The decision is here:

US v. F. Tydingco, No. 17-10023 (11-27-18) & US v. L. Tydingco, No. 17-10024 (11-27-18)(Graber w/Thomas & Lasnik).

The defendants were convicted of “harboring” an alien and “aiding and abetting” the harboring in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). The defendants, residents of Saipan, brought a 10-year-old Chinese boy over from China to attend school.  He did so for 2 years; but this violated the 45-day “parole” rule for visitors.  The defendant Lili argued she did not know of the rule. 

The 9th held that the instruction defining “harbor” was erroneous as it did not require the jury to find that the defendants intended to violate the law.  This error was not harmless. The 9th harmonizes two precedents in tension: Acosta, 531 F.2d 428 (9th Cir. 1976)(harboring to prevent detention) and You, 382 F.3d 958 (9th Cir. 2004)(intending to violate the law). The key is intent: You requires intent; Acosta held that harbor does not require an intent to avoid detention. The distinction is one can harbor to make a political point, and not seek to avoid detention.

The 9th also found that the instruction defining “reckless disregard” was likewise erroneous.  It did not require the jury to find subjective intent; that is, Lili drew an inference that the alien was actually an alien and was in the United States unlawfully.  There were acts that she was confused.  The review was for plain error, and it was found to be prejudicial as the jury could have acquitted on an invalid legal theory.

At the outset of the opinion, the 9th had found that there was sufficient evidence to convict the defendants when viewed in the light most favorable to the prosecution.  The jury instructions require a remand for a new trial.

The decision is here:


Tuesday, November 27, 2018

US v. Chilaca, No. 17-10296 (11-26-18)(Rosenthal w/Hawkins & Hurwitz).

The 9th reversed in part convictions for possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The panel held that, under § 2254(a)(4)(B), which makes it a crime to knowingly possess “1 or more” matters containing any visual depiction of child pornography, simultaneous possession of different matters containing offending images at a single time and place constitutes a single violation. Counts charging possession of child-pornography images on separate media found at the same time and in the same place were multiplicitous and constituted double jeopardy. The error was not harmless, but because the record clearly shows that evidence presented at trial would have been the same regardless of the number of counts charged, no new trial is warranted. The panel remanded with instructions to vacate three of the multiplicitous counts of convictions and to resentence the defendant on the remaining count.
The decision is here:

Sunday, November 25, 2018

Case o' The Week: Defending the government's conviction (when the government won't) -- Arpaio and Fed. R. Crim. Proc. 42 Special prosecutors

 A convicted felon, pictured below, has again lost in the Ninth Circuit.
 United States v. Arpaio, 906 F.3d 800 (9th Cir. Oct. 10, 2018) (Ord. denying rehearing en banc), concurrence and dissent available here

Players: Concurrence in denial of rehearing en banc by Judge W. Fletcher, joined by Judges Graber, Gould, Paez and Christen. Statement of agreement by Senior Judge Tashima.
  Dissent from denial of rehearing en banc by Judge Callahan, joined by Judges Bybee, Bea, and Ikuta. Statement of agreement by Senior Judge Tallman.

Facts: Former Sheriff Joe Arpaio violated an order of the district court. Id. at 801. The United States successfully prosecuted Arpaio for criminal contempt of court, on July 31, 2017. Id. In August 2017, prior to sentencing, President Trump pardoned Arpaio. Id. Arpaio then moved to dismiss the prosecution, and vacate the conviction. The district court granted the motion to dismiss the prosecution, but denied the motion to vacate the conviction. Id. Arpaio appealed, and the government told the Ninth that it did not intend to defend the district court’s order. Id.
  The motions panel (Judges Fletcher, Tashima, and Tallman) issued an order appointing a private attorney as a special prosecutor “to provide briefing and argument to the merits panel.” Id.; see generally blog entry here
  A judge of the Ninth Circuit called for rehearing en banc. Id. at 801.

Issue(s): Should the motion panel’s order appointing a special prosecutor be reheard en banc?

Held:A vote was taken, and a majority of the non-recused active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f). Rehearing en banc is DENIED.” Id. at 801.

Of Note: NorCal is the epicenter of the national “separation of powers” battle. In his concurrence, Judge Fletcher explains that this was a routine order – just part of the court’s inherent power that had been recognized by the Supreme Court before Fed. R. Crim. Proc. 42 was amended to make it explicit. See id. at 802 (discussing Young v. United States ex rel. Vuitton, 481 U.S. 787, 793 (1987).
  Judge Callahan disagrees: “The executive branch’s role is to prosecute. Our role is to adjudicate. When we close our eyes to the constitutional limits of our power, we are bound to veer out of our lane, and there’s no telling what else we might do simply because ‘we see no reason why’ not. The prosecutors here intend to do their job—we should let them and worry about doing our own job.” Id. at 811 (Callahan, J., dissenting from denial of rehearing en banc).
   This debate resonates with more-recent events. President Trump has harshly criticized an immigration decision of an “Obama judge,” sparking a rare public defense of the federal judiciary by Chief Justice Roberts. See article here
  Ironically, the President incorrectly blamed the Ninth Circuit for this courageous asylum decision. Who was the district judge who actually issued a temporary restraining order against the President’s new asylum rule?

The Hon. District Judge Jon Tigar, Northern District of California
 The Hon. Judge Jon Tigar, of the Northern District of California. Id.

How to Use: Does the Judiciary’s frustration with the Executive inure to the benefit of our clients? Well, it can’t hurt.
  In 2004 and 2005, SCOTUS’ frustration with Congress and politically-driven guidelines (particularly after the 2003 PROTECT Act) arguably resulted in Blakely and Booker and “advisory” guidelines. DOJ grumbled that the number of in-guideline sentences promptly dropped. See “Fact Sheet” here 
  This history of the Judiciary's response to the encroachment of the other branches is interesting to mull, as the Judiciary now considers challenges to Acting Attorney General Matthew Whitaker. See articles here, and here        
For Further Reading: Before Thanksgiving, President Trump continued a long tradition and pardoned two turkeys. 
  In another jab at our circuit, the President warned that ‘he couldn't promise the turkeys their pardons ‘won't be enjoined by the Ninth Circuit (Court of Appeals).’” See article here

Image of former Maricopa County Sheriff Officer Joe Arpaio from

Image of the Honorable District Judge Jon Tigar from

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


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