Sunday, December 04, 2016

Case o' The Week: Doe, a Drear, a New-Rule Drear: Doe and Proof of Knowledge of Real ID for Agg Identity Theft

“Keepin’ it real” just got easier, in the Ninth (unfortunately).
  United States v. John Doe, 2016 WL 6958647 (9th Cir. Nov. 29, 2016), decision available here.

Players: Decision by visiting Sr. District Judge Garbis, D. Maryland, joined by Judges Silverman and Nguyen.

Facts: John Doe refused to give his name, through the appeal. Id. at *1 & n.1. The victim of this ID case was born in ’63 and later obtained a social security card. Id. Before ’87, the victim’s birth certificate and social security card was sold; someone used these docs to obtain replacements. Id. at *1. The victim’s identification was then used for 27 years without authorization. Id. Evidence showed Doe used the victim’s identity in 2002 to get a driver’s license. That license was periodically renewed until 2014 when Doe was arrested. Id. Doe was charged with agg ID theft, and false statements in immigration docs. Id. at *2. He was convicted after trial. Id.

Issue(s): “Doe contends that the Government failed to prove an
element of the offense—specifically that he knew that the false identity he used belonged to a real person.” Id. at *1. “Doe acknowledges that the Government proved that [the victim] was a real person. . . . Doe contends however, that, without direct proof of his knowledge (such as proof that he knew [victim] or had any connection to the sale of [the victim’s] birth certificate and identifying information), the evidence was insufficient to establish his knowledge that V was a real person.” Id. at *3 (footnote omitted). “[T]he issue here presented is whether the circumstantial evidence was sufficient to establish Doe’s knowledge that the identity of [victim] was that of a real person.” Id. at *3. “This case presents the question, not previously addressed by this Court, of whether evidence of a defendant’s repeated submission of false identifying information as part of successful applications to a government agency is sufficient to permit a reasonable jury to find that the defendant knew that the information belonged to a real person.” Id. at *1.

Held:We hold that it is and that Doe’s convictions were thus based upon sufficient evidence.” Id. 

“This Court holds that the evidence of Doe’s repeated successful use of V's identity in applications subject to scrutiny was sufficient to permit the jury to find that he knew that V was a real person.” Id. at *4.

Of Note: This is a disappointing holding, and the jury instruction – quoted verbatim in the opinion – is likely to be imported in agg ID theft cases. Id. at *4. The theory appears to be a presumption of government competence: a defendant theoretically knows that the government would jump on the use of a fake social security number or birth date in an application for government docs. Thus, using an ID to apply for government docs is circumstantial evidence that the defendant knew the ID was real. Id. at *4 (collecting cases). Unfortunately, this new Ninth rule is also consistent with decisions from the First, Eighth, and Eleventh Circuits. Id.

How to Use: It bears emphasis that the Doe rule is just a “sufficiency” holding: the case doesn’t hold that applications for government docs are per se evidence that the defendant knew the identity belonged to a real person. To the contrary, this is mere circumstantial evidence that is subject to attack. In this case (and in others cited in Doe), the defendant was a foreign national who argued he couldn’t reasonably be pegged with knowledge of how the U.S. government’s identification-certification procedures worked. Id. at *4. While that argument didn’t win the sufficiency-day for Doe, “[h]is not being a citizen, although a resident, of the United States is a fact that the jury could have considered relevant . . . .” Id. (emphasis added). Doe’s inadvertent holding is that the unique history of the defendant, in the context of this circumstantial evidence, is relevant to the subjective question of whether this defendant knew the ID belonged to a real person.
For Further Reading: Doe involved mand-mins and immigration charges –subjects much on our mind, as (future) A.G. Sessions warms up in the batter’s box. For a preview of the Senator’s views, see news release here.

Image of “McLovin” scene from “Superbad,” from

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


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Thursday, December 01, 2016

US v. Doe, No. 15-10063 (11-29-16)(Garbis, Sr. D.J., with Silverman and Nguyen). 

This is an aggravated identity theft case.  The defendant was convicted of using the identity of a real person when he renewed his driver's license and submitted an employment eligibility form.  The defendant, still known as "Doe" because he has refused to provide his name and still has not been affirmatively identified, argues on appeal that the prosecution failed to prove that he knew the identity belonged to a real person.  The 9th holds that the evidence was sufficient to support such knowledge.  The 9th specifically holds that a defendant's repeated submission of false identifying information as part of successful applications to a government agency can sufficiently support such knowledge as circumstantial evidence.  The 9th also held that an upward variance from a guideline range of 18-24 months to 78 months (!) was not unreasonable.  The district court explained that the defendant had committed crimes under the identity and his theft caused serious disruptions to the victim and family.

The decision is here:

Saturday, November 26, 2016

Case o' The Week: Time for Land's End - McCandless and Bail Pending Habeas Resolution

Black Friday and Cyber Monday -- a fine time for the Ninth to be mulling Land's end.
United States v. McCandless, 2016 WL 6647768 (9th Cir. Nov. 10, 2016), decision available here.

Players: Per curiam decision with Judges Wallace, Farris, and Watford. Hard-fought appeal by Hawaii Federal Public Defender Peter Wolff and First Assistant Alexander Silvert.

Facts: McCandless, a Career Offender, is serving a 145-month sentence. Id. at *1. He received a § 5K1.1 departure on his original sentence: if the same percentage reduction was applied to his post-Johnson sentence, his term would be an (already-served) 71 months. Id. The district court stayed its decision on McCandless’s Johnson habeas petition pending Beckles. Id. at *2. The court then denied McCandless’s motion for bail.

Issue(s): Is a district court’s order denying bail pending resolution of a habeas decision a final decision subject to review under 28U.S.C. § 1291, or otherwise appealable under the collateral order doctrine?

Held: “Our precedent holds that a district court's order denying bail pending resolution of a habeas petition is not a final decision subject to review under 28 U.S.C. § 1291 and is not otherwise appealable under the collateral order doctrine. Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989) (per curiam).” Id. at *2.

Of Note: Having found the bail order was not appealable, the panel construed this case as a petition for a writ of mandamus – then denied it under the high mandamus standard. Id. at *2 (discussing Bauman’s "exceptional circumstances amounting to a judicial usurpation of power” standard). The problem, however, was the fundamental threshold issue -- the appealability of the district court's bail order.
  The Ninth, respectfully, has it wrong.
  The panel itself flagged this problem, conceding that the Ninth is really alone on a “lopsided split”: six other circuits have all held that an order denying bail pending resolution of a habeas petition is appealable. Id. at *2 & n.1. 
  What Ninth decision handcuffed this three-judge panel and forced this outcome? Land, a dusty two-paragraph opinion, where the habeas petitioner does not appear to have been represented. Ironically, the Ninth itself has parted ways with the gist of Land, correctly holding that the denial of bail in connection with probation revocation proceedings is appealable under the collateral order doctrine. See United States v. Loya, 23 F.3d 1529,1530 n.1 (9th Cir. 1994).
  McCandless should go en banc, the Court should overrule Land, and the Ninth should end its lonely outlier status on this important issue.

How to Use: For Johnson warriors watching clients overserve illegal sentences while stays stall for Beckles, McCandless is a discouraging outcome. Even under the tough mandamus standard, however, hope remains.
  McCandless argued that an original § 5K1.1 reduction, applied to his post-Johnson sentence, would have meant that he was overserving his custodial term. Id. at *3. The Ninth rejected that argument as “entirely speculative.” Id. 
   We have no shortage, however, of Johnson petitioners who are currently overserving their vanilla Guideline terms, when the correct post-Johnson calcs are applied. If your client is overserving a post-Johnson guideline term (without departures or variances), don’t let McCandless dissuade you from bringing a mandamus petition on a bail denial. Even if the Ninth doesn’t correct its Land precedent on the appealability of bail orders, there still may be mandamus hope for a subset of petitioners with “clean” Johnson overserving claims.
For Further Reading: District courts should not punt on habeas decisions, staying cases while SCOTUS lumbers towards its Beckles decision. So says the Tenth Circuit in a string of recent enlightened decisions. See e.g., United States v. Smith, 2016 WL 6609499 (10th Cir. Nov. 9, 2016) (mem.).
  That was, we thought, also the longstanding Ninth rule, based on a thoughtful opinion penned by Judge Thompson: United States v. Yong, 208 F.3d 1116,1121 (9th Cir. 2000) (“The writ of habeas corpus, challenging illegality of detention, is reduced to a sham if ... trial courts do not act within a reasonable time . . . A long stay also threatens to create the perception that courts are more concerned with efficient trial management than with the vindication of constitutional rights.”) (quotations and citations omitted).
  Sadly, and despite Yong, the Ninth has proven far more tolerant of stays than the Tenth.  See, e.g., United States v. Dunlap, No. 16-16271 (Oct. 20, 2016) (Ord.) (“This appeal is dismissed for lack of jurisdiction because the district court’s order staying proceedings pending the Supreme Court’s decision in Beckles v. United States is not appealable as a final judgment or as an order that comes within the collateral order doctrine.”)
   How many petitioners will overserve unlawful terms, as petitions are back-burnered while Beckles is mulled by the Supreme Court? Law students looking for a Note subject should take a close look at the Johnson litigation experience. As Judge Thompson correctly predicted in Yong, it’s tough to vindicate constitutional rights when petitioners can’t pry decisions from the federal courts.

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


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