Friday, January 19, 2018

US v. Brown, No. 16-30218 (1-16-18)(Clifton w/Wardlaw; Owens concurring). 

The 9th vacates a sentence for a felon in possession and remands.  The err was in the district court determining that a base offense level enhancement applied because a previous conviction for a state drug conspiracy (Washington) qualified under state law as a "controlled substance offense." Under the categorical approach, this state conspiracy was not a match for a federal conspiracy because, under state law, a defendant can be convicted if the only alleged coconspirator is a law enforcement officer or an agent.  Under federal law, a defendant cannot be convicted if the only alleged coconspirator was a law enforcement officer or agent.  The state legislature's amendment to the state general conspiracy code also applies to the drug conspiracy code. The error was not harmless.

Owens, concurring, bemoans the categorical approach.  Although precedent compels this result, he describes how categorical approaches stray from common sense.  He advocates a change to length of sentences rather than labeling.

Congrats to stalwart CJA lawyer Davina Chen (Cal Central) for another victory.
The decision is here:

Tuesday, January 16, 2018

US v. Depue, No. 15-10553 (1-11-18)(Callahan w/Tallman & Ezra).

No “Twelve Angry Men” scenario here. The 9th affirms convictions for a mortgage fraud scheme, and finds no abuse of discretion when the court dismissed a juror. The juror (No. 9) had stated that he was unwell, claimed he had been poisoned by another juror, and was “odd man out.” Under Fed R Crim P 23, a court can dismiss a juror for “good cause,” which can include “physical incapacity.” The 9th concluded the court here dismissed the juror for “physical incapacity,” and not for his views on the case. The Court focused on the juror’s physical symptoms, emphysema, and his feeling unwell. The statement “odd man out” was not delved into by the Court and was not the reason the juror was dismissed. The 9th also affirmed the sentencing (262 mos.) based on the amount of loss because of the failure to object. (Defendant represented himself Pro Se, and made no opening, closing, objections, or called any witnesses).

The decision is here:
US v. Hulen, No. 16-30160 (1-10-18)(Clifton w/Wardlaw & Owens).

The 9th affirms a SR revocation based on the defendant's admissions during mandatory sex offender treatment.  "There was no violation of Hulen's right against self-incrimination because a proceeding to revoke supervised release is not a criminal case for the purposes of the Fifth Amendment." (11). SR gets due process lite--it is not a criminal case, with the full panoply of constitutional protections; it is not new punishment for a new crime. Rather, it is conditional liberty.  The right against self-incrimination only extends to prohibit the use of an admission in a criminal case.  There was no new crime charged here.

The case contains a listing of rights not afforded a defendant on SR: self-representation does not apply; right of confrontation does not apply; corroboration of a confession is not required; collateral estoppel does not bar a subsequent revocation after an acquittal. (8).
The decision is here:

Sunday, January 14, 2018

Case o' The Week: Seeing Hulen Rouge - Self-incrimination and Supervised Release Violations

   Tell clients to be forthcoming with their treatment providers, while on supervised release.
  (They'll feel good about themselves while serving their revocation sentences).
United States v. Hulen, 2018 WL 343759 (9th Cir. Jan. 10, 2018), decision available here.

Players: Decision by Judge Clifton, joined by Judges Wardlaw and Owens. Hard-fought appeal by AFPDs David Merchant and Josyln Hunt, Federal Defenders of Montana.

Facts: Hulen was on supervised release for failure to register as a sex offender. Id. at *1. Hulen admitted to his treatment provider that “he was not doing all he could do to progress in treatment.” Id.
  The provider told Hulen to write down his transgressions, then promptly shot Hulen’s list to the Probation Officer. Id. The P.O. filed a Form 12. Id.
  [NB: Hulen did not admit to new crimes in his list].
  Hulen conceded violations in the district court, was revoked, and sentenced to six months custody. Id. at *2.

Issue(s): “Hulen argues that the use of his statements against him in the revocation proceeding by the district court violated his right against self-incrimination under the Fifth Amendment.” Id. at *1.

Held: “We hold that the district court did not violate Hulen’s right against self-incrimination because that right extends only to prohibit the use of an admission in a criminal case. A proceeding to revoke supervised release is not a criminal case for purposes of the Fifth Amendment right against self-incrimination. Accordingly, we affirm the decision of the district court.” Id. at *1.
  “A revocation proceeding is not a new criminal proceeding, but is instead part of the “matrix of punishment” arising out of the original crime . . . . Thus, the full panoply of rights due a defendant in a criminal proceeding does not apply to revocations. . . . Revocation deprives a probationer only of the conditional liberty properly dependent on observance of special restrictions. . . . . The Fifth Amendment does not provide a right to avoid the consequences of violating those special restrictions. Accordingly, a revocation proceeding is not a criminal case for purposes of the Fifth Amendment right against self-incrimination.” Id. at *4 (citations omitted).

Of Note: In Hulen, the Ninth recites the constrained constitutional rights afforded in violation proceedings, then extends these crabbed approaches to the Fifth Amendment. See, e.g., id. at *3 (“We held that the Sixth Amendment right of confrontation does not extend to revocations in United States v. Hall, 419 F.3d 980, 985–86 (9th Cir. 2005)). 
  Yet in UnitedStates v. Avila, the Ninth just reversed a revocation when a defendant wasn’t afforded confrontation in a contested hearing. No. 17-100065, (Ninth Cir. Nov. 17, 2017) (mem.) (“Under Morrisey v. Brewer, 408 U.S. 471 (1972), every release is guaranteed the right to confront and cross-examine adverse witnesses at a revocation hearing, unless the government shows good cause for not producing the witnesses.”) (citation and quotations omitted).
  What gives, with Hulen and Avila?
  A learned colleague flagged a difference as the origins of the Confrontation Clause right: Hulen is discussing Sixth Amendment Confrontation, and Avila, the due process confrontation right.
  The nutshell? Hulen’s primer on S/R misery is a little more nuanced than at first it may first appear.

How to Use: There is a difference, the Ninth assures us, between conduct leading to a new criminal charge, and a violation of the supervised release “matrix of punishment.” That difference probably eludes Hulen, as he sits in his jail cell.
  Note, however, also the major caveat in Hulen (needed to try to distinguish a long string of contrary Ninth decisions on self-incrimination for supervised release violations): if the conduct involves (or potentially involves) a new crime, the Fifth’s protections against self-incrimination (may) kick in. As Judge Clifton (sort of) concedes, “If an effort had been made to charge and convict Hulen for a new crime based on his admissions, he would presumably be able to claim the benefit of the Fifth Amendment.” Id. at *4.
For Further Reading: President Trump has placed three of the four U.S. Attorneys in California. They’ll hang onto their interim gigs if re-upped by the district courts, until they are ultimately confirmed by the Senate (likely outcomes, for these three experienced appointees).
  The odd one out? N.D. Cal.

  In the Northern District, Acting US Attorney Alex Tse will hold down the fort until the Trump nominee is announced. See article here

Image of the four Federal Districts within the State of California from

Steven Kalar, Federal Public Defender, Northern District of California


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Sunday, January 07, 2018

Case o' The Week: Ninth Tuts Hut Scuttlebutt - Wells and FRE 404(b) Evidence

What happens on Attu, stays on Attu . . .
United States v. James Michael Wells, 2017 WL 6459199 (9th Cir. Dec. 19, 2017), decision available here.

Attu Island, Alaska

Ed. note: A slow week for decisions is a good opportunity to revisit the Ninth's recent Wells decision, for its analysis of FRE 404(b). 

Players: Decision by visiting DJ Walter, joined by Judges Tashima and Nguyen. Concurrence by Judge Nguyen. Partial concurrence and dissent by Judge Tashima. 
  Impressive victory for former CD Cal AFPD Davina Chen.

Facts: Wells worked at an Alaskan Coast Guard facility on Kodiak Island. Id. at *2. In April 2012, two of Wells’ co-workers were found, murdered, at the facility.
  On the morning of the murders, Wells had left voicemails on the victims’ phones, explaining he’d had tire problems. Id. Surveillance footage, a history of workplace disputes, and suspicions about the damaged tire and alibi eventually lead to Wells’ indictment for the murders.
  At trial, the government introduced testimony that Wells had disobeyed a direct order from a supervisor in 2003, and had hauled back a fiberglass hut that was having problems, from Attu, a remote island on the Aleutian Chain. Id. at *20.
  The government argued that this 2003 “hut” episode was the best example of Wells’ “narcissistic traits” and was “the height of ego” – consistent with personality-profile testimony the government’s “expert” had offered. Id. The court found this “hut” episode was “inextricably intertwined” with the charged events, “relevant to motive,” and “help paint a picture of the work environment.” Id.
  Wells was convicted.

Issue(s): “Wells challenges a significant amount of testimony as impermissible character and other act evidence, under Federal Rules of Evidence 404(a) and 404(b), respectively. . . .” Id. at *17.

Held: For the reasons that follow, we find that the district court erred in admitting the 2003 incident, as it was neither inextricably intertwined nor permissible motive evidence under Rule 404(b)(2).” Id. at *20.
  “[United States v.] Dorsey, [677 F.3d 944 (9th Cir. 2012)], illuminates the difference between finding that evidence is inextricably intertwined, and therefore not subject to Rule 404(b) analysis, and finding that evidence falls under one of Rule 404(b)’s permissible uses, namely to prove motive. In determining whether particular evidence is necessary to the prosecution's “coherent and comprehensible story,” we ask whether the evidence bears directly on the charged crime. 677 F.3d at 952 (internal quotation marks omitted). “There must be a sufficient contextual or substantive connection between the proffered evidence and the alleged crime to justify exempting the evidence from the strictures of Rule 404(b).” . . . Here, none of the other acts evidence bears ‘directly’ on the charged crimes, or has the requisite “contextual or substantive connection” to be categorized as inextricably intertwined. It was error for the district court to admit it as such . . . (second citation omitted).” Id. at *21.

Of Note: As noted in an earlier COTW, this is a dense decision with many valuable nuggets to mine. Not discussed here is another great holding, finding a government shrink’s testimony about Wells’ personality “profile” was erroneous. Id. at *16. That expert error, combined with this FRE 404(b) error, earned a reversal on a double-homicide conviction.
  An important decision well worth a close read, on many fronts.

How to Use: Wells is a welcome limitation on that dangerously mushy “inextricably intertwined” FRE 404(b) theory used to smuggle in a defendant’s prior bad acts.
  The decision also rejects the government’s reliance on this workplace dispute to show Wells’ motive (another 404(b) theory of admission). There was “no logical basis,” the Ninth observes, to explain how a beef with a different supervisor, bearing no relation to either victim, from a decade before the murders, showed Wells’ intent for these homicides. Id. at *21. Instead, the government’s “motive theory was couched in the broadest possible terms in order to sidestep evidentiary hurdles.” Id.
  Turn to the great language in Wells to fight the government’s inevitable blunderbuss barrage of FRE 404(b) theories.

For Further Reading: Ten Ninth judges appointed by Democrats (out of 29 authorized judgeships), are currently eligible for senior status.
  For a fascinating (albeit slightly right-leaning) analysis of President Trump’s potential impact on the Ninth (and other federal courts of appeal), see the National Review article here

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



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Tuesday, January 02, 2018

Hernandez v. Chappell, No. 11-99013 (12-29-17)(Reinhardt w/Pregerson; dissent by Nguyen).

The district court already had found IAC in the sentencing phase of this capital habeas for failure to investigate and present a diminished mental capacity defense. The State did not appeal the court’s decision to set aside the death penalty. As for the guilt phase, the district court had found no prejudice. The diminished capacity evidence, in the court’s opinion, would not have changed the guilty verdict given the facts, the multiple murders, rapes, and the detailed confession.
On appeal, the panel found IAC in the guilt phase. A majority, which Pregerson helped constitute before his death, also found prejudice. The majority opinion goes through the extensive evidence of diminishment due to organic brain damage, mental illness, and horrid abuse and concludes that one juror probably would have been swayed.

Dissenting, Nguyen agrees with IAC but would not find prejudice given the facts and actions supporting guilt.

Congrats to Tracy Casadio and Margo Rocconi, Deputy FPDs, Cal C. (Los Angeles).

The decision is here:

US v. Aldana, No. 16-50372 (12-29-17)(Ikuta w/Fletcher & Barker).
The 9th affirms a conviction for attempted illegal entry at a time and place other than designated by immigration officials under 8 U.S.C. § 1325. The 9th rejects the argument that entry “designated” by immigration officials can occur in an entire geographic region rather than at a specific immigration facility.  The 9th examined the text, legislative history, and purpose of the statute to support its decision of why a defendant must go to a specific building or facility to enter this country.

Interesting argument by Doug Keller, Deputy Federal Defender, Cal S.

The decision is here:

Sunday, December 31, 2017

Case o' The Week: Ninth Disinclined on Second Werle - Werle and Taylor / Johnson Analysis, "Crimes of Violence" and USSG Sec. 2K2.1

Batting .50 saves client 40. United States v. Justin Werle, 2017 WL 6346659 (9th Cir. Dec. 13, 2017), decision available here.
 Players: Per curiam decision by Judges O’Scannlain, Tallman, and Watford. Dogged appellate advocacy by ED WA AFPD Matt Campbell.

Facts: Werle pled guilty to § 922(g)(1), and possession of an unregistered gun. Id. at *1. The district court found qualifying prior crimes of violence, and deemed Werle subject to the ACCA’s fifteen-year mand-min. Id. 
  In the Ninth’s first Werle, a different panel held that a “riot” prior was not categorically a violent felony (hence no ACCA!), and remanded. Id., see also blog entry here. 
  On remand, the district court hit Werle with a guideline increase under USSG § 2K2.1(a). Id. The court found that prior Washington convictions for “felony harassment via a threat to kill” were crimes of violence, increased the offense level, and imposed a custodial term of 140 months. Id. at *15.

Issue(s): “Werle argues that the district court erred in concluding that his convictions for felony harassment under § 9A.46.020(2)(b)(ii) were crimes of violence.” Id. at *1. “Werle argues that § 9A.46.020(2)(b)(ii) is overbroad because
  (1) it lacks the requisite mens rea to constitute a threatened use of force,
  (2) it includes threats to kill in the distant future, and
  (3) it does not necessarily require threatened violent force.” Id. at *2.

Held: (1): “Werle’s argument is unavailing because § 4B1.2(a)(1) only requires that the state crime has as “an element . . . the threatened use of physical force.” (emphasis added). It is clear that the first element of a conviction under § 9A.46.020(2)(b)(ii)—a knowing threat of intent to kill someone—requires a sufficient mens rea, and so that element by itself may render the conviction a crime of violence. That other elements of the statute may be satisfied with a lower mens rea adds nothing to our inquiry under § 4B1.2(a)(1), because requiring the state to prove additional elements only narrows the reach of the crime.” Id. at *3.
  (2) “[W]e find no support for any such immediacy requirement in the language of § 4B1.2(a)(1).” “[Section] 4B1.2(a)(1) does not contain the ‘substantial risk’ language used in § 16(b). Rather, § 4B1.2(a)(1) largely mirrors the language of § 16(a) and only requires a ‘threatened use of physical force,’ regardless of any substantial risk that the force will actually occur . . . . Id. at *3.
  (3) “Werle argues that a threat to kill does not necessarily include a threatened use of violent physical force, as required by Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), because one could kill someone via the application of poison or other non-forceful means. Werle may have luck with this argument in other circuits . . . but we have categorically rejected it . . . .. By threatening to kill, Werle necessarily threatened violent physical force.” Id. at *4 (citations omitted).

Of Note: Werle (I & II) are poster children for the complexity of the Taylor analysis. As noted above, Werle I was a big defense win. See 815 F.3d. 614 (9th Cir. 2016). In Werle I, the Ninth explained that “felony riot” was not a violent felony triggering the ACCA under Johnson. In Werle II, by contrast, the Ninth is looking at a different prior, and different definition for “crime of violence”: the definition used by USSG § 2K2.1. See Werle II, 2017 WL 6346659 at *3. Different prior, different definition, different outcome. Before despairing at this complexity, consider the results: Taylor and Johnson ultimately meant over three-years knocked off of Mr. Werle’s ACCA term. Well worth the “probe into the undergrowth of [the] . . . convictions,” as this panel put it. Id. at *2.

How to Use: We just touted the reverse use of the ACCA / Guidelines definitional whipsaw, in Rick Allen Jones. See blog entry here
  In Werle II, however, the Court rejects that approach in the context of § 16(b) and USSG § 4B1.2(a)(1) definitions. Id. at *3. 
  Tricky business, this: take care in the definitional analogues used when attacking a “violent crime” or “crime of violence” definition.
For Further Reading: 2018 may be a year of change, for the Ninth.
  Seven of twenty-nine (24%) of Ninth Circuit judgeships are now or will be open in 2018, awaiting appointments by President Trump and Senate confirmations. See Ninth Circuit report here

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


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Friday, December 29, 2017

Apelt v. Ryan, No. 15-99013 (12-28-17)(Callahan w/Farris & Owens). Note: Az FPD CHU represented a co-defendant. 

The 9th reverses the district court’s finding of IAC in the capital sentencing. The panel held that while IAC did take place, AEDPA requires deference to the state supreme court’s conclusion that there was no prejudice. The 9th further found that the state court did not apply an unconstitutional nexus requirement for mitigation nor was there prejudice if there had been such an application. Further, there was no IAC as to failure to challenge competency at trial.

The decision is here: