Sunday, May 22, 2016

Case o' The Week: Give Unto Others (or Go to Jail) - Inouye and Restitution Orders

 Tithe 10% to the Church -- or face the consequences on judgment day.
  Then give 8% to the Feds -- or face the consequences on judgment day.
United States v. Inouye, 2016 WL 2641109 (9th Cir. May 10, 2016), decision available here.

Players: Per curiam decision with Judges Graber, Bybee, and Christen. Hard-fought appeal by Federal Public Defender Peter Wolff, District of Hawaii.

Facts: Inouye pleaded guilty to wire fraud. Id. at *1. He was sentenced to one month in prison, concurrent terms of supervised release, and was held joint and severally liable for over $200,000 in restitution. Id. The order had the rate of repayment to be set by the Probation Office, “but no less than 10% of his gross monthly income . . . .” Id. at *1. While on supervised release, Inouye started making payments, then stopped, then lied and assured his PO “the checks were in the mail.” Id. Because Inouye had no job, had barely ceased being homeless, and had significant debts, the defense and the government agreed that the repayment schedule should be set at zero, or a nominal fee. Id. 
  At the Form 12 hearing, however, the court sentenced Inouye to a day of custody, 59 months of supervised release, and future restitution at 8% of gross monthly income. Id. Because the government had agreed to no, or nominal, restitution, the court appointed the “Maryland Crime Victim’s ResourceCenter, Inc.” as amicus curiae. Id.

Issue(s): “On appeal, Inouye argues that the district court abused its discretion when it imposed an 8%-of-gross-income restitution schedule because it considered his projected future earnings and drew inferences about Inouye’s finances with ‘no support in the record. . . . The government has changed its position on appeal and now supports the judgement below.” Id. at *2.

Held:The district court did not abuse its discretion in setting Inouye's restitution schedule at 8% of his gross monthly income. When assessing whether a restitution schedule under 18 U.S.C. § 3664(f)(2) was an abuse of discretion, we follow a two-step inquiry: First, we determine whether the lower court applied the correct legal rule, and second, we determine whether the application of that rule or standard was illogical, implausible, or without support from any inferences that can be drawn from the record. United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir.2009) (en banc); see also United States v. Booth, 309 F.3d 566, 575 n. 6 (9th Cir.2002) (“A restitution order is reviewed for abuse of discretion if it is within the bounds of the statutory framework.”). Inouye fails to make out a case at either step, so we affirm.” Id. at *3.

Of Note: Amicus “Victim’s Resource Center” argued that the Ninth lacked jurisdiction, because of an appellate waiver in the original plea agreement. Id. at *2. Thankfully, the Court rejected all of the arguments challenging the right to appeal a sentence for a supervised release violation. Id. The Ninth agrees with other Circuits that have considered the issue: “A generic appellate waiver does not waive the right to appeal modification or revocation proceedings.” Id.

How to Use: Eight percent of monthly income, for a guy reduced to living rent-free with his aunt, id. at *1, seems like a particularly harsh restitution order (notably, the Hawaiian AUSA apparently agreed). 
  When staving off Inouye in district court, note some unusual facts that may help distinguish the case. Inouye was 36, had no substance abuse problems, was healthy, had been steadily employed throughout his life, and had – for the most part – remained employed during most of his period of supervised release. Id. at *1. Not our typical indigent client. 
   Moreover, remember – as emphasized by the Ninth – “8% of $0.00 is “$0.00.” If this restitution order had been an amount – instead of a percentage – this rate may not have fared as well.
For Further Reading: What do District Judge Charles R. Breyer, and new San Francisco Police Chief Toney Chaplin, have in common? They both think S.F. cops need body cams. See For Further Reading” available heresee alsoNew San Francisco Police Chief Top Priorities: Body Cameras, Use of Force,” available here.  

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


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Friday, May 20, 2016

United States v. Tadios, No. 14-30231 (5-18-16)(McKeown with Tallman and Gleason, D.J.).
"Time is money."  That was the conclusion of this opinion, which concerned loss calculation.  The defendant was convicted of various fraud counts of using federal funds for personal benefit.  As a CEO of a federally funded health clinic on an Indian Reservation, she said she was visiting clinics for "official government business" when she was really visiting her husband, a tribal chairman, who was serving a federal sentence at a federal penitentiary in South Dakota.  These trips lasted several days but she would only visit a tribal clinic for a couple of hours.  This conversion of federal funds led to the conviction: the question for the 9th was whether the salary loss to the tribe, because she should have taken annual leave, should be counted as loss.  The district court included such loss, and the 9th affirmed.  Under 2B1.1 of the Guidelines, the loss to the tribe can be calculable, even if she was management, and a salaried employee.  The tribe suffered from her absence when she said she was working.  Public accountability demanded an accounting.  The loss amount was not erroneous.

The decision is here:

United States v. Quintero-Leyva, No. 14-50509 (5-17-16)(Nelson with Callahan and N. Smith).
The 9th holds that Guidelines amendment 794 (minor role) applies retroactively in direct appeals.

Amendment 794 concerned minor role adjustments.  The amendment resolved a circuit split and clarified application by broadening applicability.  In amending minor role as it pertained to drug couriers ("mules"), the Sentencing Commission sided with the 9th and 7th in considering the actual participants involved, and not, as in the 1st, to hypothetical average participants.  The amendment also used a totality of circumstances approach, stating that a courier could get the adjustment even if deemed essential to the trafficking.  The court needed to consider factors such as a propriety stake, degree of planning, compensation, nature and extent of involvement and so forth.  Given the resolution of the split, and clarification, the amendment must be retroactive to appeals.

In the case here, a year before the amendment, the defendant was trying to smuggle over 13 kg of meth and over $260,000 hidden in a car.  The defendant confessed he had been approached a few days before to smuggle drugs over the border, but he thought it was marijuana. Heels provided the car; he did not own it nor did he register it.  He was told that he would be contacted afterwards and paid $100,000. The defendant was young (18), with no prior record or arrests. The prosecutor did not recommend minor role; the PSR did not give it.  At sentencing, the court varied down to 72 months but did not adjust for minor role, stating that the defendant had re-initiated contact with the supplier after first being approached and the defendant's monetary incentive.

The 9th, after finding the amendment retroactive to direct appeals, reversed the sentence and remanded.  The 9th instructed the court to take into account all the factors.  The factors had to be weighed together, and the presence or absence of one did not bar or foreclose the adjustment.

The decision is here:

Sunday, May 15, 2016

Case o' The Week: LaCoste Riposte - Conditions of Supervised Release

  Barred from the internet, barred from four counties – all for security fraud?  
  Probation didn’t ask for these conditions of supervised release – and the government didn’t suggest them.
  The Ninth, turns out, isn’t keen on them either.   
United States v. LaCoste, 2016 WL 2754736 (9th Cir. 2016), decision available here.

Players:  Decision by Judge Watford, joined by Judge Berzon and Sr. DJ
Hon. Judge Paul Watford

Facts: After misleading investors on the solvency of real estate projects, LaCoste pleaded guilty to securities fraud. Id. at *1. One victim complained of internet rants against her and her husband; she suspected LaCoste. Id. Other victims’ comments suggested LaCoste’s criminal conduct had caused “significant financial and emotional strife among residents of Albany, Oregon, the community in which LaCoste lived.” Id. As a condition of supervision, the court prohibited internet access without the prior approval of Probation. Id. The court also prohibited LaCoste from living in four counties (stressing LaCoste shouldn’t return to Albany.) Id. The court opined this would give the community “a chance to heal.” Id. at *2.

Issue(s): “LaCoste challenges both the Internet-use restriction and the residency restriction. Neither of those supervised release conditions had been recommended in the Presentence Report or suggested by the government, so the district court's remarks at sentencing provide the only explanation for why the conditions might be warranted. LaCoste's lawyer objected to the residency restriction but not to the Internet-use restriction.” Id. at *2.

Held:We address the Internet-use restriction first. Because LaCoste failed to object . . . plain error review applies. . . . We conclude that relief is warranted under this standard.” Id. at *2. “Even if the district court could impose a supervised release condition prohibiting such conduct here, the condition it actually imposed sweeps far more broadly. The court prohibited LaCoste from making any use of the Internet without first getting his probation officer's approval. In our view, that condition involves a greater deprivation of liberty than is reasonably necessary to address the district court’s concerns. . . . . Cutting off all access to the Internet constrains a defendant's freedom in ways that make it difficult to participate fully in society and the economy.” Id. at *3.

  “We turn next to the supervised release condition barring LaCoste from residing in (four) counties. . . . We conclude that this condition, too, must be vacated.” Id. at *4. “[T]he court did not adequately explain the basis for its view. Simply declaring that a defendant is likely to resume a life of crime if he returns to a given area is not enough, unless the reasons are obvious from the record. . . . Here they are not.” Id. at *5.

Of Note: Does the First Amendment protect a defendant’s right to disparage victims? Interesting question, avoided in LaCoste. Id. at *3. The parties didn’t raise it – intriguing that the Court flagged it here.

How to Use: “With Probation approval” ain’t the fix. “Imposing a total ban and transferring open-ended discretion to the probation officer to authorize needed exceptions is not a permissible alternative.” Id. at *4. Use LaCoste to fight “P.O. supervision” as an attempt to salvage overbroad conditions of supervised release.
For Further Reading: SFPD Officer Nicholas Buckley, Badge / Star Number 528, testified with great sincerity at the suppression hearing. He explained that a dice game and our client’s suspicious and evasive behavior provided the basis for a Tenderloin stop. Officer Buckley sailed through cross unscathed, credibly demonstrating how Mr. Simpson walked; illustrating precisely how Mr. Simpson held his hands before the stop. When asked, the officer carefully marked the locations of various events on a map.
  And then?
  And then AFPD Ellen Leonida turned to the surveillance video, obtained by our comrades at the SF Public Defender’s office before the case went federal.
Hon. District Judge Charles R. Breyer
As noted by Judge Breyer, the video contracted Officer Buckley’s testimony as to every pertinent fact.
  The USAO was given an opportunity for – reflection – by the Court, and quickly dismissed the indictment. 
  Judge Breyer then delivered an extraordinary soliloquy on the integrity expected from law enforcement, and the ramifications of Buckley’s testimony for our confidence in criminal convictions. Police body-cams, Judge Breyer now concludes, are a necessity.
  His Honor was not enraged by the day’s events. Instead, he confessed that he was “deeply saddened” -- a profoundly moving courtroom moment, from a respected and experienced jurist.
   What next? Will Officer Buckley be prosecuted in federal court for perjury? How many Buckley convictions at the Hall of Justice, and at 450 Golden Gate, are now vulnerable? What are the broader ramifications for the SFPD?
   Developments await.
  See ABC article here ; see also SF Chronicle Article here 

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


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