Monday, July 27, 2015

This opinion is a civil case, but nothing about it suggests to me that the same rule wouldn't obtain in criminal cases in analogously unusual circumstances.

Dietz v. Bouldin, No. 13-35377 (Fisher with Bea and Murguia) --- The Ninth Circuit held that if a trial judge makes an "appropriate inquiry to determine that the jurors were not exposed to any outside influences that would compromise their ability to fairly reconsider the verdict," the judge may recall a jury shortly after it has been dismissed to correct an error in the verdict.

This case involved a suit for damages following a car accident.  The defendant had admitted fault, and the parties had stipulated to the amount of damages to award stemming from the accident, so the only issue at trial was the amount of damages for future treatment.  The jury had been instructed to award at least the amount of stipulated damages, but they returned a verdict of zero dollars instead.  The judge thanked the jury and told them they were free to go.  But "moments after having dismissed them," the judge recalled the jury because their verdict was contrary to the instructions.  After inquiring about any potentially improper influence that may have occurred during the momentary dismissal, the judge reconvened the jury and reminded them they had to issue a verdict for at least the stipulated amount.  The next morning they returned a verdict for more than the stipulated amount.

Most courts of appeals allow the judge here to do what he did under the circumstances and in the face of the appropriate prophylactic discussion with the jurors that happened here.  But the Ninth Circuit had never decided what should be done here, so they had to publish an opinion on this score.  The Eighth Circuit has a bright-line rule that says once the jurors leave the courtroom, the judge can never reconvene that jury.  The Ninth Circuit didn't like that rule because it was too rigid and didn't account for the possibility that the jurors could receive improper outside influence even while they're in the courtroom now that everyone has the internet in their pockets.  So the Ninth Circuit went with the flexible rule, requiring only the prophylactic discussion.  Because that discussion had occurred here, the court found no abuse of discretion and upheld the jury's verdict in favor of the plaintiff.

The decision is here:

United States v. Santos-Flores, No. 15-10289 (July 2015 motions panel) --- In a published order, the Ninth Circuit held that a criminal defendant may not be denied bail simply because he is likely to be placed in immigration custody and thereby not be made available for trial.  The court affirmed the denial of bail in this case, however, on the alternative ground that the district court made individualized findings about the likelihood that this defendant would not voluntarily appear for trial in light of his history of immigration violations and the circumstances under which he was caught in this case, which included the fraudulent use of identity documents.

The defendant here is charged with illegal reentry.  He was on supervised release for a prior illegal re entry, and was caught coming back with false documents. The government indicted him, and he sought release.  The district court said "no" because he would be turned over to ICE and deported, and alternately examined individualized factors. On appeal, the Ninth Circuit parsed the Bail Reform Act, and concluded that Congress did not bar consideration for release.  Congress had stated that immigration had to be informed, and that if they did nothing, the defendant could be considered.  The 9th concludes that there may be various reasons why ICE would not deport or remove someone, or would want them prosecuted.  This factor cannot bar release considerations.  Endorsing a conclusion by Judge Simon of the District of Oregon, the court said, "If the government, by placing Santos-Flores in immigration detention or removing him, jeopardizes the district court’s ability to try him, then the district court may craft an appropriate remedy."  Alas, for the defendant here, the Ninth Circuit concluded that individual factors supported the detention decision.  These include a record, prior immigration matters, and the use and possession of fraudulent identity documents.

Kudos to CJA panelist and former Assistant Federal Public Defender Bob McWhirter of Tempe, Arizona.

The decision is here:


Saturday, July 25, 2015

Case o' The Week: Ninth Revs Up ICE-Breaker - Bail Reform Act not Trumped by Imigration Detainers

Hon. Judges Kozinski and Schroeder
If the United States Attorney’s Office – Article II of the federal government – is unable to control ICE, who can?

  The Ninth Circuit Court of Appeals.

United States v. Santos-Flores, 2015 WL 4480561(9th Cir. July 6, 2013) (Ord.), decision available here.

Players: Order from motions panel of Judges Schroeder, Canby and Kozinski.

Facts: Santos-Flores, a native and citizen of Mexico, was charged with illegal reentry. Id. at *1. When arrested at the border, he presented false IDs and falsely claimed to be a U.S. citizen. Id. He was detained by the magistrate judge and “appealed.” Id. (Ed. Note: Acknowledged that taking up the Mag. Judge decision to the district court is not technically an “appeal,” see 18 USC Sec. 3145(b), but is term used in this Order.) The district court found that if Santos-Flores was released, he would be unlikely to appear at trial because he would be detained and removed by ICE. Id.

Issue(s): Is the existence of an ICE detainer, or the possibility that ICE will issue a detainer and remove an alien, a categorical basis for denial of release under the Bail Reform Act?

Held:We hold that the district court erred in ordering pretrial detention based on the likelihood that, if released pending trial, Santos-Flores would be placed in immigration detention and removed from the United States, pending his appearance for trial.” Id. at *1.

“If the government, by placing Santos–Flores in immigration detention or removing him, jeopardizes the district court's ability to try him, then the district court may craft an appropriate remedy . . . . The court may not, however, substitute a categorical denial of bail for the individualized evaluation required by the Bail Reform Act.” Id. at *3.

Of Note: Is Mr. Santos-Flores a free man, pending his illegal reentry trial? Sadly, no: the Court upheld the district court on other grounds. Mr. Santos’ false I.D.s, false claim to U.S. citizenship, previous failure to appear, violation of supervised release, multiple unlawful entries, and “severity of the potential punishment and strength of evidence against him” made him a “voluntary flight risk.” Id. at *3. Bad facts in this case – but the essential point is that this is an individualized assessment, not a flat ICE-detainer bar. For other alien defendants – and with a different individualized analysis -- the government won’t be able to meet its burden and will be unable to hide behind an ICE hold to seek detention in federal court.

How to Use: The Honorable District Judge Simon (with admirable advocacy from D. Or. AFPD Christopher Schatz) lead this bail trend with the groundbreaking Trujillo-Alvarez decision in 2012. See order here 
   Notably, Trujillo-Alvarez is cited with approval by the panel in the Santos-Flores order. Id. at *3. The Panel in Flores-Sanchez affirms a simple truth that we’ve long argued: if the government doesn’t want our client deported when released on bail, the government can forego reinstatement and removal. Id. at *2. And if the federal government (Article II) can’t manage to control its own federal agency (ICE), the district court can then “craft an appropriate remedy.” Id.
For Further Reading: How often does the Ninth wade in and reverse a detention order? About every two weeks, of late. See United States v. Howard, No. 15-10259 (9th Cir. July 15, 2015) (Ord.), available here. (Note - a big win for NorCal’s own Dan Barton). In Howard, the Ninth reversed a ND Cal judge’s detention order when there were inadequate findings of a crime, or a violation, while on pretrial release. Id. at 1. Both orders came from the same motions panel: Judges Schroeder, Canby, and Kozinski. Id. 

Like Santos-Flores, the Howard order is worth a close read – and particularly Judge Kozinski’s concurrence in the Howard decision. Judge Kozinski questions why the government has unfettered access to witnesses before trial, but the defendant cannot. Id. at *6. “Why isn’t [a defendant] entitled – just as well as the government – to test the witness’s memory and let him know the facts as he [the defendant] remembers them?” Id. (Kozinski, J., concurring). More welcome common sense from the author of “Criminal Law 2.0.”

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

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Friday, July 24, 2015

United States v. Torres, No. 12-50553 (Tallman with Murphy and Gould) --- The Ninth Circuit affirmed a conviction for importation of cocaine, holding that questions from a supposed third-party (an alternative culprit) were inadmissible hearsay, and that excluding the questions was harmless in any event.

Is a question hearsay?  Depends, says the 9th, requiring nuance and, well, because the defendant was asked the question "by a friend" who wanted to take control of his car to unload drugs of which the defendant was unaware, then yes, it is hearsay.  It is hearsay because the defendant wanted the question asked three times by Fernando, "Can I take your car", to be true.  It was not a case that it affected the defendant's state of mind, but the defendant wanted the query to be believed for his defense of "blind mule." The 9th stated that questions usually are not hearsay, but much depends on context and meaning, and the 9th gave a litany of examples (many with the prosecution asking that it be considered nonhearsay).  There is also a broader approach by the Fifth Circuit that would find almost all questions to be nonhearsay.  Even if the district court erred in admitting the hearsay, it was harmless, because excluding the questions didn't prevent the defendant from raising his third-party culpability defense.

The decision is here:

Tuesday, July 21, 2015

US v. Mahon, No. 12-10273 (7-20-15)(Owens with Thomas and Benavides).  Note:  This is an AZ FPD case.  The 9th affirmed convictions for a pipe bomb explosion, finding that a building which is non-economic in nature, purpose, design, and meaning (such as a Diversity office for a municipality) can nonetheless engage in interstate commerce through a city store. 


US v. Aquino, No. 14-10360 (Owens, Wardlaw, Berzon).  The 9th vacates a sentence on a SR violation.  The defendant was being coy when she denied use of "illicit drugs" (spice) but the government failed to prove that it was an illicit drug--drug testing failed to reveal any evidence of an illegal or illicit drug in her system.  The 9th appreciated the concerns of the district court, and the goal of the probation officer, but the evidence did not support that she had used illicit drugs--just that she smoked "spice," and it was unclear what that was and whether it contained a controlled substance.


Congrats to AFPD Salina Althof of the Hawaii FPD Office.

Monday, July 20, 2015

United States v. Gonzalez-Corn, No. 13-50480 (Fisher with Bea and Friedland) --- The Ninth Circuit affirmed a jury-trial conviction for illegal reentry, holding that the trial judge properly instructed the jury that it could find the alienage element of the charge based on a combination of a prior removal order and the defendant's previous admissions that he was an alien.  The court also held that a conviction for distribution of marijuana under 21 U.S.C. § 841(a) and (b)(1)(D) was an aggravated felony.

 The decision is here:

Today's opinions are both in § 2254 appeals brought by state prisoners under sentence of death.  A California death-row prisoner loses, while a Nevada death-row prisoner prevails on both guilt- and penalty-phase claims.

1.  Boyer v. Chappell, No. 13-99006 (O'Scannlain with Ikuta and NR Smith) --- The panel affirmed the denial of a § 2254 habeas petition filed by a California death-row prisoner.

No clearly established federal law required the trial court to hear live testimony from a witness to an uncharged murder that was used as an aggravating factor at the penalty phase.  The California Supreme Court did not unreasonably conclude that sufficient evidence supported this aggravating factor. 

The state courts did not unreasonably deny a claim that trial counsel was ineffective for failing to investigate possible organic brain damage.  The panel dismissed as hindsight a declaration that trial counsel prepared in which counsel averred that he had no strategic reason for not pursuing this avenue of mitigation.  Five experts evaluated the petitioner and did not suggest a likelihood of organic brain damage.  The circumstances surrounding the crime suggested a lack of prejudice from any deficient performance on counsel's part.  And the Ninth Circuit had denied similar claims in three other cases.

California's death penalty scheme satisfies the Eighth Amendment's procedural requirements.

No clearly established federal law required the trial court to instruct the jury that unconsciousness is a complete defense to first-degree murder.

The decision is here:


2.  Rogers v. McDaniel, No. 11-99009 (Gould with Silverman and Hurwitz) --- The Ninth Circuit affirmed the grant of penalty-phase relief to a Nevada death-row prisoner, holding that a penalty-phase jury instruction was unconstitutionally vague and that the vagueness was not harmless.  The panel also vacated and remanded the denial of numerous guilt-phase claims in light of intervening precedent on timeliness and procedural default.

The victims lived in an isolated area northeast of Reno, Nevada, and had been shot and stabbed in their home.  The petitioner presented significant evidence at trial that he suffered from paranoid schizophrenia.  At the penalty phase, the prosecution sought to prove that the murders "involved torture, depravity of mind or mutilation of the victim."  The Ninth Circuit had previously held this aggravating factor to be unconstitutionally vague under Godfrey v. Georgia, 446 U.S. 420 (1980), and that was the legal basis for the district court's grant of penalty-phase relief.  The prosecutor conceded during closing argument that the murders did not involve torture, so the use of this aggravating factor (and related jury instructions) was not harmless.

The panel remanded eight guilt-phase claims for further proceedings in light of Martinez v. Ryan, 132 S. Ct. 1309 (2012); three other claims for expansion of the record under Cullen v. Pinholster, 131 S. Ct. 1388 (2011), and further consideration in light of Martinez; and three other claims for consideration of equitable tolling under Rhines v. Weber, 544 U.S. 269 (2005), and Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2014).

Congratulations to Assistant Federal Public Defender Mike Pescetta of the District of Nevada.

The decision is here:
This round of Ninth Circuit summaries includes (1) a victory for the Innocence Project on postconviction DNA testing, (2) a decision on the intent requirement for providing false information on a passport application, and (3) a victory for a California state prisoner seeking to appeal the denial of his habeas petition.
1.  United States v. Watson, No. 13-30084 (Kleinfeld with O'Scannlain and Berzon) --- The Ninth Circuit held that a defendant is entitled to postconviction DNA testing of evidence that could not be tested at the time of trial.  The defendant had been convicted of rape, but testimony at trial was equivocal as to who the perpetrator was (assuming there was a rape at all).  There was a DNA sample in the form of semen on the victim's underwear, but it was too small to test at the time of trial in 2006.  Now it can be tested, so the defendant brought a motion for postconviction DNA testing.  The district court denied the motion because it was presumptively untimely, having been brought more than three years after conviction.  But the presumption is rebuttable in the face of newly discovered DNA evidence, and the Ninth Circuit held that "newly discovered" in this context means DNA evidence, the import of which is newly discovered in light of technological advances.  The court thus reversed the denial of the motion for DNA testing and remanded for further proceedings.
The decision is here:

2.  United States v. Ye, No. 12-10576 (Friedland with Clifton and NR Smith) --- The Ninth Circuit held that providing false information on a passport application, in violation of 18 U.S.C. § 1542, is not a specific-intent crime, and thus affirmed a conviction because the jury instructions were proper.

The defendant, a Chinese citizen, traveled to Saipan with her husband and then overstayed her visa in order to give birth to her second child on U.S. soil and presumably to avoid the Chinese one-child policy.  The child was then entitled to a U.S. passport, but the law required both parents either to ask for it in person, or one parent to provide the notarized statement of consent from the other parent.  She appeared at a passport office with her brother-in-law, who pretended to be the child's father.  Charged with making a false statement on a passport application, she argued at trial that this was a specific-intent crime and that the jury should be required to find a specific intent to violate the immigration laws of the United States.  The trial court refused this instruction, and the Ninth Circuit affirmed.  Because the Supreme Court had held that the related crime of using a passport obtained by a false statement did not require specific intent, see Browder v. United States, 312 U.S. 335 (1941), the Ninth Circuit held that this crime also did not require specific intent to violate the immigration laws.

The decision is here:

3.  Foley v. Biter, No. 12-17724 (Christen with Schroeder and DW Nelson) --- The Ninth Circuit reversed the denial of a California state prisoner's motion for relief from judgment under Rule 60(b)(6), holding that counsel had abandoned the petitioner, thereby preventing a timely appeal from the denial of his § 2254 habeas petition.

The petitioner is serving a life sentence without the possibility of parole for murder, imposed by a California state court.  He filed a petition for a writ of habeas corpus through counsel, but counsel forgot that he represented the petitioner.  The district court denied the petition, but counsel did not notify the petitioner.  Six years after the denial and nine years after filing the petition, the petitioner inquired of the status of his case, both with the court and with counsel.  Counsel provided a declaration explaining that he had forgotten about his representation of the petitioner and therefore did not notify him about the denial, which the petitioner submitted to the district court in conjunction with a request to revive the case so that he could appeal.  The district court found no attorney abandonment and denied the motion, but the Ninth Circuit reversed.  The declaration was adequate proof that counsel had abandoned the petitioner.  And once he learned that his petition was denied, the petitioner had made reasonable efforts to determine what relief was available to him and actually sought that relief.  The district court thus abused its discretion to find that the petitioner had not acted within a "reasonable time" under Rule 60(b)(6).

The decision is here:

Sunday, July 19, 2015

Case o' The Week: Ninth (Sai)Pans specific intent requirement. - Ye and Mens Rea for Passport offense

It's a Winn-Win situation . . . (for the government).
United States v. Ye, 2015 WL 4153634 (9th Cir. July 10, 2013), decision available here.

Players: Decision by Judge Friedland, joined by Judges Clifton and N.R. Smith.  

Facts: Ye, a Chinese citizen, overstayed her visa in Saipan and gave birth a child.
Hon. Judges Michelle Friedland and N.R. Smith
Id. The child’s place of birth made her a U.S. Citizen entitled to a U.S. passport. Id. Ye and her husband could have obtained a U.S. passport for the child if they both applied in person, or if one parent signed a notarized authorization statement. Id. This notarized statement, however, would have caused (unspecified) problems for the father of the child in China -- so the father’s brother traveled to Saipan, posed as the father, and executed the child’s passport application. Id. Both the brother (the child’s uncle) and Ye, the mother, were charged with conspiracy to violate 18 U.S.C. § 1542, providing false information in a passport application. Id. Ye was convicted after trial.

Issue(s): “[Ye] argues that the district court’s jury instructions erroneously failed to condition her convictions on a finding that she intended to violate the passport laws.” Id. at *1.

Held: “We hold that the crimes for which Ye [were] convicted are not specific intent crimes, so her challenges to the jury instructions fail.” Id. at *1. “We now join our sister circuits and hold that, consistent with [the Supreme Court’s decision in] Browder, a conviction under the first paragraph of 18 U.S.C. § 1542 does not require specific intent.” Id. at *3.

Of Note: “But wait,” you ask: “in ’78 didn’t the Ninth hold that a district court ‘correctly instructed the jury’ that ‘an act is done willfully if done voluntarily and intentionally with the specific intent to do something the law forbids’ – under the same paragraph of this statute?” 

You remembered correctly. Id. at *3, citing Winn

However, Judge Friedland distinguishes Winn because that was a “sufficiency of the evidence” case, “so its approval of the ‘willfully’ jury instruction is best understood as stating that the instruction had not improperly reduced the government’s burden of proof.” Id. at *3. That’s a pretty close reading of precedent to avoid the Miller v. Gammie bar on flipping a prior panel (though the Ninth admittedly gets a little boost from Justice Sotomayor, who had as a judge made the same fine distinction). Id. at *3 & n.2. Another unfortunate salvo in the attack on our beloved and beleaguered federal mens rea requirements.

How to Use: It’s an old (and fair) gambit to intentionally add small errors to a declaration, ask a witness to interlineate and correct them when they object, and then later argue that the witness must have read the document carefully before signing because errors were caught and fixed. Here, the government used that trick: DHS agents intentionally inserted errors in interview read-backs to Ms. Ye, to trigger corrections and later prove the accuracy of the translators. Id. at *5. That strategy helped the government fend off a Crawford attack on the translators in Ye, and it was reported without criticism by Judge Friedland. Sauce for the goose, sauce for the gander: point to this passage when a D.J. gives you grief for your investigator’s use of that technique.
For Further Reading: Many people in prison “really don’t need to be there.” A quote from Justices Kennedy and Breyer? Well, yes, probably, but this week the insight is from House Speaker John Boehner. See article here

Last week Mr. Boehner endorsed the SAFE Justice Act, welcome legislation that narrows the use of mand mins, encourages alternative sentences, and has a number of other reforms. 

Meanwhile, Senate Whip Cornyn (R-Texas) suggested that a bi-partisan sentencing overhaul deal may be announced as soon as next week. Seearticle here.  

Throw in the historic first Presidential visit to a federal prison, NYT article here and maybe this will be the long overdue Summer of Change?   

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

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