Monday, June 17, 2019

Kirkpatrick v. Chappell, No. 14-99001 (6-13-19)(Bea w/Wardlaw & Christen). The 9th affirmed the denial of a capital habeas. The case presented a convoluted procedural history, where the petitioner waived claims, and issues of petitioner’s competency were raised. At the original panel hearing the case had Reinhardt and Kozinski. In this opinion, the 9th held that aggravating evidence that the petitioner had threatened a neighbor and even poisoned dogs did not have a substantial or injurious effect on the jury’s decision. The 9th additionally held that petitioner failed to present clear and convincing evidence that rebutted the California Supreme Court’s finding that petitioner waived his state habeas exhaustion petition.

Hard fought appeal by Patricia Young and Mark Drozdowski, Deputy FPDs, FPD Cal Central (Los Angeles).

The decision is here:

Sunday, June 16, 2019

Case o' The Week: Error Plain Here Government's Bain -- Bain, Rule 11 Plea requirements, and Armed Bank Robbery

 A closed knife just won't cut it.
United States v. Bain, 2019 WL 2426145 (9th Cir. June 11, 2019), decision available here.

 Players: Decision by Judge Tashima, joined by Judge M. Smith and DJ Piersol.  

 Facts: Bain, a heroin addict, robbed several banks without a weapon. Id. at *1. At the last bank, he accidentally pulled a closed pocket knife from his pocket, along with a plastic bag for the loot. Id. 
  (Bain later explained he did not intend to cause fear or intimidate the teller with the knife. Id.)
  Bain plead open to unarmed and (for the bank with the knife) armed bank robbery. Id. The defense didn’t object to the sufficiency of the plea for the armed robbery count. Id. 
  Bain was sentenced to 197 months on the armed robbery count, and 137 months (concurrent) on the unarmed robbery counts. Id. at *2.

Issue(s): “On appeal, Bain contends that the district court violated Federal Rule of Criminal Procedure 11(b)(3) by entering judgment on Bain’s guilty plea without a sufficient factual basis for the plea. During the robbery, which Bain admitted committing, Bain inadvertently placed a closed pocket knife on the bank’s counter while pulling a plastic bag out of his pocket.” Id. at *1.
  “[T]he only issue before this Court is whether there was a sufficient factual basis to meet the statutory requirement of ‘puts in jeopardy the life of any person by the use of a dangerous weapon or device.’ More specifically, we focus on what constitutes the “use” of a dangerous weapon during a bank robbery.” Id. at *3.

Held:We hold that this action did not ‘put[ ] in jeopardy the life of any person by the use of a dangerous weapon,’ which is a requirement for armed bank robbery under 18 U.S.C. § 2113(d). Because the district court committed plain error in accepting Bain’s guilty plea without a sufficient factual basis, and the error affected Bain’s substantial rights, we reverse Bain’s conviction for armed bank robbery, vacate his sentence, and remand for further proceedings.” Id. at *1.

Of Note: Judge Tashima explains that on these facts, the “silent presence of a knife on the counter” was not “obvious and forceful,” so the knife wasn’t “used” for the robbery. There was not, therefore, a sufficient factual basis for the plea. Id. at *4.
   So, does that count now go away? 
  Sadly, no: the Ninth presumes that jeopardy has not attached. The government can take that count to trial, reduce it to an unarmed bank robbery charge, or dismiss it. Id. at *5 & n.6. 
  Query how a trial on this charge would survive a Rule 29 motion, if these facts didn’t cut Rule 11 mustard for the Ninth? Maybe a jury would disbelieve Bain’s account about the knife – although tough to imagine how the government would thread this element’s needle, after this decision by the Ninth.

How to Use: There are two interesting appellate nuggets in Bain. First, Judge Tashima engages in a helpful “substantial rights” analysis as part of the “plain error” issue. Id. at *4. He concludes that, but for this Rule 11 mistake, Bain would have gone to trial – so he earns a plain error reversal for this Rule 11(b)(3) problem. Id.
  Bain is also helpful for the idea that sentences become “unbundled” when one count is reversed, requiring an entirely new sentencing package on remand. Id. at *5.
For Further Reading: Last week, Judge Carlos Bea announced his plans take senior status upon the “nomination, confirmation and appointment of his successor.” See article hereJudge Bea was nominated to the Ninth by President George W. Bush. See article here

The Honorable Judge Carlos Bea
Judge Bea’s spot is President Trump’s ninth, Ninth, slot – with Patrick Bumatay rumored to be a lead candidate for the position. See Washington Times article here 

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


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Thursday, June 13, 2019

Gouvela v. Espinda, No. 17-16892 (6-12-19)(Berzon w/Wardlaw & Rawlinson).  The 9th affirms habeas relief arising from granting a mistrial without manifest necessity. 

In a state manslaughter trial, the jury came back with a verdict.  Before the verdict was read, the jury expressed concern about a “menacing looking” man seated on the prosecutor’s side of the courtroom. The jurors, being questioned, said that this did not affect the verdict. Yet the court granted a mistrial, because there was nothing it could do.

The 9th held there was. The court could have instructed, taken steps, or assured the jury about matters.  The verdict had not been recorded yet.  The petitioner had the right to a trial.  And, all the parties, including the court, felt that it would be an acquittal. Thus, because of the protections of the double jeopardy clause, the granting of habeas relief was affirmed.

On appeal, the state raised a jurisdictional argument. The state argued that 28 U.S.C. § 2241 does not cover double jeopardy writs.  The strength of the argument was summed up by the opinion’s conclusion why the 9th had not previously addressed this point: “Our gap on this point is understandable, as it is rare that we are asked to address an argument so transparently without merit.” (8).

Oh yes, what was the sealed verdict the jury had returned before the mistrial?  “Not Guilty.”

Congrats to Peter Wolff, FPD Hawaii, for the win.

The decision is here:

Tuesday, June 11, 2019

US v. Bain, No. 17-10107 (6-11-19)(Tashima w/M. Smith & Piersol). The 9th reverses a plea to armed bank robbery, vacates the sentence, and remands.  The 9th concludes that defendant’s inadvertent placing of a closed pocket knife on a bank counter, while he was pulling a plastic bag out of his pocket, did not constitute “use” of a dangerous weapon.  The error was plain and affected substantial rights.

Congrats to Tonya Peterson, CJA in Az (Phoenix), for the win.

The decision is here:
US v. Yong, No. 17-16017 (6-7-19)(Cardone w/Berzon & Friedland). This habeas revolves around petitioner’s efforts to vacate his misdemeanor guilty plea to operating an unlawful sports betting operation.  The petitioner argued before the district court and on appeal that his guilty plea was coercive and that pervasive government misconduct made the plea involuntary.  The 9th affirms the district court’s denial of the petition.

The petitioner and others, including his son, were charged with felonies regarding illegal sports betting operations. The defendants filed a motion arguing for suppression of evidence for Fourth Amendment violations and for government misconduct.  Subsequent to the motions, but before the ruling, the petitioner and others entered a group plea. One of the stipulations was that the charges against petitioner’s son would be dropped.  Petitioner went through the rule 11 colloquy and was sentenced to five years unsupervised probation, forfeiture of certain property, and agreement to leave the United States for five years.  Two defendants pressed forward, and the district court suppressed the evidence.

The 9th reviewed the jurisprudence on pleas, group pleas, coercion, and evidence of misconduct. The 9th concluded that there could only be an involuntary plea here if, at the time of the charges, no probable cause existed to bring charges against the son. The 9th concluded there was (the grand jury indicted). The plea further was not involuntary when the petitioner knew of the allegations of misconduct, and struck a deal regardless.

The decision is here:

US v. Benamor, No. 17-50308 (6-6-19)(Graber w/Bybee & Harpool). Who has the burden to prove a firearm was manufactured after 1898? Not the government! It is an affirmative defense carried by the defendant.

The defendant is a prohibited possessor.  He was found with a shotgun and ammo. At trial, on 922(g)(1), the prosecution proved that the defendant was (1) a felon; (2) he knowingly possessed a firearm; and (3) the firearm affected interstate commerce.  At the close of evidence, the defendant moved for acquittal and also asked for a jury instruction. The defendant argued that the 921(a)(3) exception defining a firearm – does not include an antique firearm manufactured before 1898 – was an element of the offense. The prosecution did not present evidence that the shotgun was manufactured after 1898. The court denied the motion and declined the jury instruction.

On appeal, the 9th affirmed.  The defendant first focused on a categorical defense and a mens rea defense.  The defendant argued that under a categorical approach, the statute was overbroad; however, the categorical approach does not apply here in this criminal prosecution, where the elements are set out. A conviction can establish certain factors that are not themselves elements of the offense.  The 9th held too that Staples, involving a mens rea of knowing a weapon was automatic, does not apply. Staples involved a general provision involving automatic weapons and not a distinct clause which is an exception.

This leaves the defense of an antique firearm. The 9th held that precedent in this circuit and others characterized the exception as an affirmative defense.  The defendant failed to produce any evidence that the firearm was that old to justify giving an affirmative defense instruction much less finding insufficient evidence.

The 9th did find a confrontation clause violation. The agent has elicited information from the landlord about the defendant having a very old firearm. This testimony violated the confrontation clause.  However, it was harmless.

The decision is here:

Friday, June 07, 2019

Case o' The Week: Ninth Gets Flight Right - Brown, Flight, and Reasonable Suspicion

 “Innocent” flight, a Fourth delight.
United States v. Daniel Derek Brown, 2019 WL 2364504 (9th Cir. June 5, 2019), decision available here.

Players: Decision by Judge McKeown, joined by District Judge Gaitan, Jr. Concurrence by Judge Friedland.  

Facts: An anonymous YWCA resident told an employee they saw a man with a gun. Id. at *2. The employee – who never saw the gun – called 911. The employee who called 911 repeated the resident’s description: “a young, black man of medium build with dreadlocks, a camouflage jacket, and red shoes.” Id. No suspicious or criminal activity was alleged by the resident, or in the 911 call.
  Police saw Brown, who matched the description. They followed him: he ran. Brown was stopped, searched, and a gun, drugs, and money were found. Id.
  Brown moved to suppress, arguing there was no reasonable suspicion under Terry for the stop. Id. The motion was denied.

Issue(s): “Recognizing that an officer may only ‘conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot,’ Wardlow, 528 U.S. at 123, 120 S.Ct. 673, we must consider whether the officers' stop of Brown met this standard.” Id. at *2.

Held: “We reverse.” Id. at *2.
   Here, the lack of facts indicating criminal activity or a known high crime area drives our conclusion. The Metro officers who stopped Brown took an anonymous tip that a young, black man ‘had a gun’—which is presumptively lawful in Washington—and jumped to an unreasonable conclusion that Brown's later flight indicated criminal activity. At best, the officers had nothing more than an unsupported hunch of wrongdoing. The government’s effort to rest reasonable suspicion on the tip and Brown's flight fails to satisfy the standard established by Terry and Wardlow. The combination of almost no suspicion from the tip and Brown's flight does not equal reasonable suspicion.” Id. at *2.

Of Note: Critical to Brown’s win was the fact that the tip was from an unidentified tipster (through the identified employee, who called 911). Use Brown to rebuff government attempts to bolster anonymous tipsters who feed their tips through identified callers – it doesn’t work that way. Id. at *3 (“Even though [the YWCA employee] identified herself, the actual source of the tip—the resident—remained anonymous.”)

How to Use: Wait – Brown fled.
   And won?
  Judge McKeown provides a very thoughtful explanation that flight is just a factor – not an automatic end to the suppression analysis. As she writes, “No one disputes that once the Metro officer activated his patrol car lights, Brown fled. But the Supreme Court has never endorsed a per se rule that flight establishes reasonable suspicion. Instead, the Court has treated flight as just one factor in the reasonable suspicion analysis, if an admittedly significant one.” Id. at *4.
  In a particularly fascinating discussion, Judge McKeown makes some welcome and common sense observations about Brown’s race, and how that fact must enter into the “flight” analysis: “Given that racial dynamics in our society—along with a simple desire not to interact with police—offer an ‘innocent’ explanation of flight, when every other fact posited by the government weighs so weakly in support of reasonable suspicion, we are particularly hesitant to allow flight to carry the day in authorizing a stop.” Id.
  (Didn’t help the government that Seattle PD is under a consent decree for race-based policing issues). Id. at *5 &n.2.
   Brown is a must-read for any case involving suppression issues and flight.
For Further Reading: When a black person flees the police, should race matter in the reasonable suspicion analysis?
  Of course.
  As the Massachusetts Supreme Court has explained, “[W]here the suspect is a black male stopped by the police on the streets of Boston, the analysis of flight as a factor in the reasonable suspicion calculus cannot be divorced from the findings in a recent Boston Police Department (department) report documenting a pattern of racial profiling of black males in the city of Boston.”
  For a succinct analysis of the landmark Warren decision, see article here

Steven Kalar, Federal Public Defender. Website at


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Thursday, June 06, 2019

US v. Brown, No. 17-30191 (6-5-19)(McKeown w/Gaitan; concurrence by Friedland). The 9th suppresses evidence for an illegal stop.  The police received an anonymous tip that a black man was carrying a gun, and a description of what he was wearing. The call came from a YWCA.  The police spotted the defendant, who was African American. The police car slowly followed him, and then Brown ran. The police caught up with him, and upon a Terry stop, found a gun.  Further searching drugs.  The 9th suppressed for lack of reasonable suspicion being afoot. There was no indication that illegal activity was taking place, or that threats were being made, or that a crime occurred. The defendant did flee when the police spotted him.  The 9th though would not let flight by itself be a determining factor given the lack of other indicia.

Concurring, Friedland stressed that carrying a concealed weapon is legal in Washington. The concurrence notes that guns are a problem in this country, and police can investigate, but they have to act in conformity with the law. 

The concurrence further stressed that the record does not indicate that then police stopped the defendant because he was African American.

The decision is here: 

Monday, June 03, 2019

US v. Knotek, No. 17-55572 (6-3-19)(Paez w/Parker & Clifton). This is an extradition habeas. The 9th held that the government could extradite a US citizen to serve a two decades old sentence because, well, it could. The government has authority under 18 U.S.C. § 3196, which governs US citizens and extradition. The government has discretion to ship its citizens to foreign countries so long as a treaty does not forbid it. The treaty with the Czech Republic allows it. It is up to the government to exercise discretion. It did so here. Moreover, the conviction, for attempted extortion, is an offense in both countries.

The defendant’s arguments regarding constitutionality was rejected by the 9th. This follows the Sixth Circuit and other circuits. The government has discretion.

The defendant also lost in arguing that the attempted extortion was without merit and that he had a “claim of right” defense. That is, he pointed out the economic harm to the “victims” that might befall. The 9th found that there was a reasonable basis to find attempted extortion.  This is not unreasonable.

A hard fought effort with a lot of treaty and statutory fine print by Sonam Henderson and Kathryn Young, AFPDs In Cal Central (LA). Extradition matters are always tough sledding.  

The decision is here:
US v. Graves, No. 16-50276 (5-30-19)(Clifton w/Paez & Katzmann). The 9th vacates a life sentence under 851 and remands for resentencing. The 9th found one of the prior drug convictions to be overbroad and nondivisible. The statute is California Penal Code 4573.6 (2007), which is inmate drug possession. This statute includes drugs not in the federal drug statute, and has a single set of elements for the offense — thus it cannot be a categorical match. Since it cannot be a predicate, then the mandatory sentence of 851 must be vacated.

The case is remanded for resentencing even though the district court stated a life sentence would be appropriate under 3553. The defendant had not submitted a sentencing memo nor submit to a PSR interview because he was facing a mandatory life sentence. The district court should get to consider the submissions.

Congrats to counsel Devin Burstein and Jeremy Warren of San Diego.

The decision is here:
US v. Johnny Ellery Smith, No. 17-30248 (5-28-19)(Callahan w/Clifton; Fisher concurring). This is an Indian jurisdiction case. The defendant, an enrolled member of the Warm Springs tribes, was charged in federal court within two state counts for fleeing or attempting to elude a peace officer. He was not charged in tribal court. 

Defendant argues (1) that the Assimilative Crimes Act (ACA) does not apply to Indian Country. He acknowledges precedent but argues that these courts merely assumed applicability and did not directly address it. (2) Even if ACA applies, defendant argues, it is jurisdictionally barred because he could have been prosecuted under tribal law. (3) Lastly, the Major Crimes Act occupies the field of federal jurisdiction for Indian criminal defendants.

The 9th rejects all these arguments. It holds that ACA applies through 18 U.S.C. §§ 7 and 1152. The 9th concludes it does, even assuming other courts, including the Supremes, had never grappled with the issue. The 9th finds jurisdiction under its own analysis of the statutes and from the circuit’s prior precedent.

The 9th holds too that if ACA applies, it is subject to exceptions in the Indian Country Crimes Act. Namely, (1) if an offense is committed by one Indian on another Indian, or property of another Indian; (2) if the defendant had already been punished by the tribe; and (3) if treaty stipulations bar such prosecutions. None of these exceptions apply here. The 9th finds that federal jurisdiction for Indian on Indian crime does not involve victimless offenses, such as occurred here. Further, if a tribe could have brought a charge does not mean there is a bar. The tribe had to charge. Finally, the Major Crimes Act does not bar the charge. Congress extends exclusive federal jurisdiction for certain offenses; it did not preclude ICCA jurisdiction for other offenses. 

Fisher concurs. He agrees that ACA applies. However, rather than find ACA as a general law applicable, subject to ICCA,; he would find it applicable through ICCA. Either way, ACA applies.

Valiant argument by AFPD Conor Husby of FPD Oregon (Portland). The defense arguments are worth pondering in view of the special jurisdiction addled and respect for tribal sovereignty. 

The decision is here: