Tuesday, April 15, 2014


United States v. Charles, No. 12-50150 (4-15-14)(Fernandez with Graber and Murguia). 

The defendant here was convicted of possession with intent to distribute crack.  He was determined to be a career offender and sentenced under that provision.  His appeal concerns the Fair Sentencing Act and guideline crack amendments 750 and 759.  He loses.  The defendant was sentenced before the FSA had opened the leniency door a crack.  The 9th and all other circuits have held that the FSA is not retroactive.  No different here.   In this case, the 9th held emphatically that the FSA was prospective and was not a mandate to reduce past crack sentences.  As for the guideline amendment for crack sentences, it doesn't apply to those sentenced as career offenders.  The defendant here was sentenced as a career offender.  The two provisions are mutually exclusive. 

Sunday, April 13, 2014

Case o' The Week: Easy Sell for Involuntary Meds - Gillenwater, Sell, and Restoration of Competency



  What stands between a government shrink with a needle, and our incompetent clients?
  Less, now.                                                                                                        
United States v. Gillenwater, 2014 WL 1394960 (9th Cir. Apr. 11, 2014), decision available here.

Players: Decision by Justice O’Connor, joined by Judges Tallman and Bea.  

Facts: Gillenwater felt he had been exposed to asbestos while renovating the Las Vegas Flamingo Hotel. Id. at 1. Convinced the government was helping to cover up this exposure, he wrote a series of threatening emails to government employees. Id. When agents showed up at his house to tell him to knock it off, he met them with gun in hand – but put it away, talked to the agents, and acknowledged that he shouldn’t sent these emails. Id. Two days later, he allegedly started sending them again. Id. When he was arrested, the feds found guns and ammo, and while in custody, Gillenwater allegedly sent a threatening postcard to an OSHA employee. Id. at 2. The district court ordered a competency evaluation, Gillenwater was found incompetent, and the government psychiatrist recommended medication (that Gillenwater refused). Id. The government moved for involuntary medication under Sell, and after a number of hearings with conflicting psych testimony, the district court agreed. Id. at *3. After appeals and remands, the case ended up back before the Ninth on the involuntary medication issue. Id. 

Issue(s): “Gillenwater contends that the government did not meet its burden on all four Sell factors and that the district court’s order authorizing his involuntary medication must therefore be reversed.” Id. at *4.

Held: “While recognizing the important interests at stake for both the government and Gillenwater, we conclude that the district court did not err in authorizing Gillenwater’s involuntary medication.” Id. at *1.

Of Note: Sell v. United States, 539 U.S. 166 (2003) is the seminal Justice Breyer decision on the rights of defendants facing involuntary medication to restore competency.  Justice O’Connor’s decision in Gillenwater arguably waters down the Sell factors. Of most concern, the decision distinguishes authority on the first Sell factor: “the important government interests factor.” 
   Here, Gillenwater was only looking at a guideline range of 33-41 months, had already served 32 months, and his mental disorder clearly drove the conduct. Gillenwater, 2014 WL 1394960 at 4-5. In previous cases, each of those facts would have cut against involuntary medication. Here, Justice O’Connor finds an “important government interest” nonetheless. 
  It’s a discouraging opinion for those representing vulnerable folks facing restraining straps and a needle full of haloperidol in the hands of a government shrink.

How to Use: Comparatively low sentencing range, most of the sentence already served, mental illness as a mitigating factors – these are facts that traditionally undercut involuntary medication. How does one distinguish Gillenwater when fighting involuntary medication? Well, there were some admittedly bad facts here: guns throughout the investigation, threats to choke, rape, and kill government employees, and a jailhouse threat postcard (why is there always the jailhouse letter, in a threats case?) Id. at 2-5. On less – "threatening" – facts, there may be some life left in the first Sell “important interest” factor.
                                               
For Further Reading: The Sentencing Commission voted to reduce the drug guidelines by 2 offense levels! See USSG Press Release here. Not effective until Nov. 1, 2014, but DOJ instructed USAOs not to object to variances for current cases, in anticipation of that amendment! See DOJ Press Release here. 
 What’s the next step towards just sentencing for our drug clients? Retroactivity. The comment period for the Commission is fast approaching for this critical issue – an important time to speak out for our clients. See Sentencing Commission Comments description here 



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

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Friday, April 11, 2014


US v. Gillenwater, No. 12-30379 (4-11-14)(O'Connor with Tallman and Bea).   

The 9th affirmed an involuntary medication order under Sell, 539 US 166 (2003). 

US v. Villalobos, No. 12-50300 (4-11-14)(M. Smith with Fletcher; concurrence by Watford). 

What is weirder than Rabbis gone bad?  A lawyer extorting a Rabbi allegedly gone bad (immigration fraud).  In this case, the 9th affirms a conviction for extortion when a lawyer threatened to have his client either help or impede an ongoing investigation of Los Angeles Chabad Center for visa fraud, if not paid.  The issue was whether the jury instruction was overbroad.  The majority found it was, with the definition of "threat" in the instruction making any nonviolent threat inherently wrongful.  Not all threats are criminal or even actionable.    Here, the court should have defined whether the threat (the means) was wrongful under the circumstances irrespective of the ends (demand by the defendant).  The threat here, to cooperate, is not inherently wrongful.  The court erred by defining threat as causing fear, rather than, being wrongful means under the circumstances.  The error though was harmless given the overwhelming evidence. The 9th did not have to reach whether a claim of right (owed funds) was appropriate as a defense.   Concurring, Watford would find no error under the circumstances.

Wednesday, April 09, 2014


United States v. Sheldon, No. 12-30324 (Hawkins, McKeown, and Clifton). 
The 9th recalls a mandate, for extraordinary reasons (never stated), to allow the defendant to file a cert petition.  The opinion, originally issued on September 19, 2013, is reissued.

United States v. Barrios-Siguenza, No. 13-10110 (4-9-14) (Per curiam with Thomas, Fisher and Berzon). 


The defendant was convicted of assault on a federal officer in violation of 18 USC 111(a)(1) and illegal entry in violation of 8 USC 1325. In a MEMORANDUM opinion, the assault conviction is reversed and remanded.  The defendant however has already been deported.  The government argues that, despite the reversal, the conviction should remain until, if ever, he might return and then he can move to vacate.  The 9th declines this invitation. This differs from a resentencing, after the defendant had been deported.  This is a conviction.  Moreover, defense counsel assured the court that the defendant was willing to return and could return for a retrial if he was paroled in.  The burden is on the government.  

Tuesday, April 08, 2014


United States v. Albino-Loe, No. 12-50428 (4-7-14) (Clifton with Schroeder and Tunheim, D.J.). 

In a spirited appeal from a 1326 conviction, the defendant argued that the Notice to Appear, required to initiate a removal, required confrontation.  The 9th disagreed, holding that the Notice was administrative and no testimonial.  The 9th also found that an agent's in court identification of the defendant as the person in the A-file was error because of the agent's limited familiarity with the defendant.  The error though was harmless.  The 9th affirmed the defendant's prior sentences for attempted murder and kidnaping as a crime of violence.  Variations between California's and other states affirmative defense of voluntary abandonment do not affect the character of the conviction.

U.S. v. Dominguez-Maroyoqui, No. 13-50066 (4-7-14) (Watford with Farris and N. Smith). 

This is an appeal from a 1326 sentence.  At sentencing, the defendant was found to have a crime of violence for a prior assault on a federal officer under 18 USC 111.  The subsection 111(a) is assault on a federal officer with a three year max.  Its elements though require only force, not physical force.  This differs from 111(b) which requires physical force.  In this case, the 9th reverses and remands for resentencing because it finds that 111(a) is not a crime of violence.  The 9th acknowledges that under United States v. Juvenile Female, 556 F.3d 943 (9th Cir. 2009), 111(b) is a crime of violence due to physical force, which is defined as violent force.  Under 111(a), the violence is not an element.  The prior does not meet the definitions of a crime of violence under 2L1.2.  If the offense is not a categorical crime of violence, then a modified categorical approach is not applicable.  Even if the statute was divisible, the elements do not qualify for a violent force.
 


United States v. French, No. 12-10185 (4-7-14)(Nguyen with Fisher; Noonan dissenting). 
In an appeal from a fraud conviction where the defendant not only represented herself under Faretta, but had her then husband and fellow pro se co-defendant conduct her direct examination, the 9th found no error.  The Faretta colloquy was adequate.  The defendant knew the risks and her rights.  Her adoption of the court's suggestion that she allow her husband conduct her examination was not reversible error.  The defense was coordinated and not at odds.  She appeared to understand.  There was sufficient evidence for a conviction.  Dissenting, Noonan argues that having an interested codefendant non-lawyer examine a pro se defendant was structural error.   The majority responds that the defendant's self-representation delights were not violated as opposed to the right to counsel.

Sunday, April 06, 2014

Case o' The Week: Ninth Ward(s) Off Constructive Amendment -- Ward, Fatal Variances, and Constructive Amendments



Hon. Chief DJ William Smith

  It would be unfair to expect a Judge who uses Twitter, has Dylan and Wilco on his iPad playlist, and who penned a 70+ page swipe at the crack guidelines, to necessarily write a great decision on constructive amendments.
  (But it is great when that’s the way it happens works out . . . ) United States v. Ward, 2014 WL 1317155 (9th Cir. Apr. 3, 2014), decision available here.

Players: Decision by visiting Chief DJ William Smith (above right), joined by Judges Watford and Hurwitz. Big win by (former CD Cal AFPD) Davina Chen.

Facts: Ward stip’ed to fraud counts and went to a jury trial on two counts of agg identity theft (18 USC Section 1028(a)(1)). Id. at *1. The indictment named two victims in those counts: Glen and Hagler. Id. at *1. 
  Over defense objection, the government introduced evidence that other victims also had their IDs stolen. Id. at *2. 
  Jury instructions did not specify that the victims of the agg ID theft had to be Glen and Hagler. Despite objections from the government and the defense, the court refused to correct that omission. Id. at *2-*3. Ward was convicted.
                                                                                                                         
Issue(s): “The question before us is whether the district court’s instruction resulted in a constructive amendment of the charges in Counts VI and VII [the agg ID counts].” Id. at *5.

Held:Read together, these cases instruct that the determination of whether a constructive amendment has been effected requires sensitivity to both the jury instructions as a reflection of the indictment, and to the nature of the proof offered at trial. More specifically, when conduct necessary to satisfy an element of the offense is charged in the indictment and the government's proof at trial includes uncharged conduct that would satisfy the same element, we need some way of assuring that the jury convicted the defendant based solely on the conduct actually charged in the indictment. Typically, that assurance will be provided by jury instructions requiring the jury to find the conduct charged in the indictment before it may convict. If the jury instructions do not impose that limitation, however, the defendant's conviction could be based on conduct not charged in the indictment. That possibility results in a constructive amendment of the indictment, requiring reversal, because it destroys the defendant's substantial right to be tried only on charges presented in an indictment. Applying that rationale here, we conclude that the district court constructively amended the indictment by permitting the jury to convict Ward on Counts VI and VII based on conduct not alleged in those counts. Ward was indicted for aggravated identity theft as to only Gerald Glen and Chris Hagler, and the identity of the victims was necessary to satisfy an element of the offense because aggravated identity theft requires proof that the victim was a real person. But the jury heard testimony that Ward also victimized [other victims].Then, the jury was instructed that it could convict Ward on Counts VI and VII if he stole the identity of ‘a real person,’ without further specificity. On those facts, we simply cannot know the basis for the jury's aggravated identity theft convictions.” Id. at *6-*7 (internal quotations and citations omitted).

Of Note: Constructive amendments and fatal variances are the “Rule Against Perpetuity” of criminal justice: a tricky area of law that is easy to forget. From the defense side, the nutshell is: constructive amendment good (gets a reversal), fatal variance bad (usually no relief, unless prejudices substantial rights). Judge Smith gives us a thorough and accessible discussion that is a good start to unravel these distinct proof problems. See id. at *4-*5.

How to Use: While the government also objected to the instruction at trial, it had the chutzpah on appeal to argue that the error wasn’t preserved. Id. at *3. The Court gives a nice little backhand to this argument, finding that although defense counsel didn’t say, “Fifth Amendment,” “the substance of the objection was patently clear.” Id. It’s a useful passage to fend off plain error when the government is arguing waiver on appeal.
                                               
For Further Reading: The Heritage Foundation is spot-on when it asks, “Can we Get Some Americans Out of Jail?” Heritage commentator Israel Ortega explains why money wasted on mand-min jail terms is better spent on prevention and rehabilitation. See article here
   Mr. Ortega touts the Smarter Sentencing Act– a bipartisan bill that is now out of Committee. See bill summary here.


Image of Chief Judge William Smith from http://law.rwu.edu/blog/three-get-ready

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


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