Thursday, March 06, 2014
United States v. Bainbridge, No. 30017 (3-6-14) (Bea with O'Connor and Tallman).
This is a change in conditions of SR case. The defendant pled to assault with intent to kidnap. He served his sentence, and upon his release, the probation officer asked to modify his SR conditions to reflect sex offense conditions. The assault involved a sexual assault and the court had imposed a registration requirement. The probation officer wanted more. The court ordered a sexual deviancy evaluation be performed before he imposed additional requirements. On appeal, the defendant argued that the court lacked jurisdiction to modify conditions absent changed circumstances or new rehab approaches. He also argued that the court erred. He lost on both points. The 9th held that under 3583(e)(2) the court had the jurisdiction and power to modify even absent a change. The statute does not restrict jurisdiction to changes. The court possesses the power. The 9th sides with the 8th and 10th circuits on this. The 9th also found no error given the circumstances of the offense and the need to protect the community and address the offense. Moreover, the court was gathering information so he would not have to impose unneeded or unnecessary conditions.
Monday, March 03, 2014
United States v. Tanke, No. 12-10362 (3-3-14 )(Fisher with Berzon; Wallace concurring).
When does a fraud scheme end? When the scheme is completed? The last proceeds trickle in? Or when a last act, like a lulling letter, is sent? And how does this play out with mail fraud? Here, the 9th considers a fraudulent scheme and bankruptcy fraud that occurred when the defendant, an officer with and employed by, say Paul Inc., borrowed without authority from Peter Inc. The question here was whether a letter sent after completion of the fraudulent borrowings sent to put that matter to bed was fraudulent? The 9th held that mailings designed to avoid detection or responsibility for fraudulent scheme falls within the mail fraud statute when they are sent before the scheme is completed. As for when the scheme ends, the scope of the scheme as devised by the perpetrator is examined. (Page 18). Thus there is a totality of circumstances test, looking at the acts of the defendant, and whether a lulling letter is actually within the scheme. In this case, a jury could have found that a lulling letter was part of the scheme, designed to conceal.In the future, this will require courts and juries to look at a continuum of actions, and to make such determinations.
The 9th also affirmed the enhancements for sophisticated means. The case is remanded however because there was error in restitution (conceded to by the government).
Concurring, Wallace argues that the majority went too far in fashioning a statute of limitations test, looking at acts to signal closure of a fraud, instead of a totality of circumstances. Wallace believes that a totality of circumstances takes in this case, and that the majority need not extend the test of looking at a specific ending act.
United States v. Perez-Valencia, No. 12-50063 (3-3-14) (Trott with O'Scannlain with Clifton).This case is about the proper delegation of authorization of wiretap approval. In this case, the 9th remanded to see if the state district attorney's office had properly authorized the approval when the district attorney was out of the jurisdiction. The district court examined the delegation. The record indicated that the delegation was for when the district attorney was absent and was for a bundle of authority and was not a delegation of just the wiretap authority, even when the district attorney was present. As such, the delegation was proper, and so was the wiretap authority.
Sunday, March 02, 2014
Case o' The Week: Tagging Sandbagging - Ninth, Maloney and Improper Rebuttal Argument
United States v. Maloney, No. 11-40311 (9th Cir. Feb. 28, 2014) (en banc) (Ord.) , decision available here.
Players: En banc order by Judge Wardlaw, joined by: CJ Kozinski, Judges Pregerson, Thomas, McKeown, Fletcher, Paez, Rawlinson, Clifton, N.R. Smith, and Hurwitz (with Judge Smith concurring in the result only).
Facts: In Nov. 2012, the Ninth issued an opinion upholding a refusal to allow a trial surrebuttal for the defense, when the government raised new factual arguments for the first time in rebuttal. Maloney, 699 F.3d 1130, 1143-45 (9th Cir. 2012); see also blog here.
Visiting Circuit Judge Gilman wrote a terrific dissent, where he quotes from the oral argument with AUSA admitting that he was sandbagging. Id. at 1149
“Judge Gilman: Alright, then why didn't you raise this [lack-of-luggage] argument in your first argument on summation?
Assistant U.S. Attorney, Steve Miller: Because I don't believe that I needed to.
Judge Gilman: Aren't you sandbagging a bit—to wait for rebuttal?
Miller: Yes I was.”
The Ninth voted to take the case en banc: it was argued in Sept. 2013. United States v. Maloney, No. 11-40311 (9th Cir. Feb. 28, 2014) (Ord.), at 4.
How did the argument go? Suffice it to say that Chief Judge Kozinski advised the AUSA to take the video of the oral argument back to the San Diego United States Attorney’s office, watch it with the United States Attorney, and “see whether this is something that you want to be teaching your line attorneys, your Assistant AUSAs, that this is proper conduct . . . . sometimes the right thing to do is to confess error.” See Maloney En Banc Argument here at 59:00.
Issue(s): What happened after the San Diego United States Attorney watched the video of the oral argument?
Held: “On October 7, 2013, the United States Attorney for the Southern District of California, Laura Duffy, filed a Motion to Summarily Reverse the Conviction, Vacate the Sentence and Remand to the District Court. In that motion, the United States Attorney represented that she and several senior attorneys in her office had reviewed the video of the en banc oral argument and reconsidered the closing arguments made in the district court. They thereafter concluded that ‘no reference should have been made to luggage in rebuttal argument.’ The United States Attorney’s Office also stated that it planned to ‘use the video of the [en banc] argument as a training tool to reinforce the principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument and must make every effort to stay well within these rules.’” Maloney, (Ord.), at 4-5.... “Accordingly, we GRANT the motion to reverse the conviction, vacate the sentence, and remand to the district court.” Id. at *5.
Of Note: As has been noted by many, the Maloney en banc argument is one of the remarkable arguments heard in the Ninth. It has too many bon mots to fully recount here. A staid account of the exchange can be found here. A less deferential summary can be found here.
The single best line? When AUSA Castetter complains to the Court that he didn’t know he’d be arguing prosecutorial misconduct, Judge McKeown dryly observes: “Not great to be sandbagged is what you’re saying.” See video here at 1:01:18
How to Use: Buried among the barbs is law of import. Judge Gilman’s dissent in the original Maloney case beautifully describes out what is off-limits in a rebuttal argument. Maloney, 699 F.3d at 1151-52 (Gilman, J. dissenting). Combine his dissent, with Judge Wardlaw’s Maloney order, when sandbagged on rebuttal.
For Further Reading: A San Diego AUSA steps over the line during closing argument in a drug case, and Judge Pregerson – one of the panel’s members – calls the government out on the error.
Maloney? Yes – but it is also Sanchez, a case with the same facts – and decided just three years ago.
Déjà vu, all over again. See Sanchez blog entry here.
Image of Maloney family crest from http://www.irishgathering.ie/images/coa/2011/maloney_large.gif
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org
Thursday, February 27, 2014
United States v. Yazzie, No. 12-10165 % US v. George, No. 12-10326 (2-27-14)(Ikuta with Farris and Fernandez)(Note: Az FPD represented George).
The sixth amendment right to an open courtroom benefits the defendant. There is also a first amendment right for openness. This right to a "public trial" is not absolute. However, to close a courtroom, (1) the party seeking to close the courtroom must present an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary; (3) reasonable alternatives must be considered; and (4) adequate findings must be made. In both of these cases, involving child victims of sexual abuse, the 9th affirmed the convictions, finding that the test set forth in Waller v. Georgia, 467 US 39 (1984) had been met. The court had found the compelling need, limited the closure to when the children were testifying, explored alternatives, and sufficiently set forth the matters and balancing on the record. The 9th also held that the requirements of 18 USC 3509(e) which permits closed courtrooms for child witnesses were also satisfied. Lastly, the 9th held that the charging and convictions on discrete sexual acts under 18 USC 2241(c) did not violate double jeopardy.
Sunday, February 23, 2014
Case o' The Week: (En) Banc Robbery - Chandler and Conspiracy Offenses as ACCA Crimes of Violence
Three concurring judges, all urging en banc review of the decision they felt forced to deliver because of binding (and dubious) Ninth precedent.
A rare concurring opinion – and hopefully not the end for this decision of first impression.
United States v. Chandler, 2014 WL 644698 (9th Cir. Feb. 20, 2013), decision available here.
Players: Per curiam decision by Judges Bybee and Tashima and District Judge Wood.
Facts: Chandler plead open to a Section 922(g) charge. Id. at *1. He had three Nevada priors: second degree kidnapping, coercion, and conspiracy to commit robbery. Id. Over defense objection, the district court found that all three priors were “violent felonies” under the Armed Career Criminal Act (ACCA) and sentenced Chandler to 235 months imprisonment. Id.
Issue(s): “We have not previously considered whether conspiracy to commit robbery is a violent felony.” Id. at *3. [ ] [W]e consider whether conspiracy to commit robbery under Nevada law is a ‘violent felony’ as that term is defined in § 924(e)(2)(B)(ii).” Id.
Held: “A Nevada conviction for robbery is a violent felony because it creates a serious risk of harm that is comparable to the risk posed by burglary [an enumerated offense in the ACCA definition of ‘crime of violence.’] And because after [the Ninth Circuit’s] decision in Mendez, the § 924(e) analysis of a prior conspiracy conviction is governedt by the substantive offense that was the object of the conspiracy, . . . conspiracy to commit robbery, pursuant to Nev. Rev. Stat. §§ 199.480, 200.238, is also a ‘violent felony’ under the ACCA’s residual clause.” Id. at *6 (internal quotations and citation omitted).
Of Note: The Ninth also decides, as a question of first impression, that the Nevada offense of second degree kidnapping is categorically “crime of violence” that triggers ACCA exposure. Id. at *8.
How to Use: The interesting aspect of this decision is not the opinion, but Judge Bybee’s concurrence – joined by Judge Tashima and District Judge Wood. Id. at *8. Judge Bybee questions the on-going validity of the Ninth’s 1993 decision in Mendez. He points out that the old Mendez approach proceeds from a faulty premise: it treats the elements of conspiracy the same as the elements of the underlying crime. Id. at *9. Based on that bad premise, Mendez equates conspiracy to commit robbery as an offense as dangerous as robbery – even though conspiracy “rarely, if ever, presents a serious potential risk of injury to another.” Id.
This old approach doesn’t square with the Supreme Court’s ACCA analysis in James, which treated an inchoate offense – attempted burglary – as different than the substantive offense of burglary. Id. As Judge Bybee observes, “until we are willing to reevaluate Mendez, offenders like Chandler will be categorized as ‘career offenders’ based on robberies which they discussed but not actually commit.” Id. at *10.
While he acknowledges a circuit split on whether conspiracy can be a violent felony, Judge Bybee and his colleagues end a great concurrence by urging en banc consideration of the questionable Mendez decision. Id. at *13.
Preserve objections to the use of conspiracy priors as ACCA crimes of violence: with luck, an en banc court will be revising this issue soon.
For Further Reading: Mandatory minimums increase disparity, by vesting too much unilateral power in the prosecutor. So argues a Chicago Law instructor, in a study of data from thousands of federal sentencings. See Crystal Yang, Have Inter-Judge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker here.
For a New Yorker piece discussing the study, see here.
“En banc” image from http://www.craigalexander.net/wp-content/uploads/2012/10/en-banc-logo.png
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org