Sunday, February 07, 2016

Case o' The Week: Oh, What a Tangled Web We Weave, then Get Obstruction When We Deceive - Johnson and Obstruction Guideline Enhancement

Turns out that testifying and committing perjury,  while defending charges of perjury, false statements, and obstruction, can have sentencing consequences.
   United States v. Stephen Johnson, No. 14-10113 (9th Cir. Feb. 5, 2016), decision available here.

Players: Decision by District Judge Rosenthal, joined by Judges Kozinski and Tallman.

Facts: Johnson was a retired law enforcement officer. Id. at 5. [Ed. Note: Five of the eleven defendants in this case had law enforcement backgrounds! See article here.]
  Johnson lied while speaking with federal agents, then lied while testifying before the grand jury, and was ultimately indicted for false statements ( § 1001) and perjury before the grand jury ( § 1623). Id. At the trial on these charges, Johnson lied to the petit jury – in different ways than his grand jury lies. Id. at 7 (describing Johnson’s different explanations before the grand and petit juries). He was convicted. 
  At sentencing, the district court grouped the counts and added a two-level bump for obstruction of justice under U.S.S.G. § 3C1.1. Id. at *7. The district court did not make a finding that the trial testimony was willfully and materially false before imposing the two-level obstruction hit. See Castro-Ponce, 770 F.3d at 822. Johnson appealed the sentence.     

Issue(s): The question is whether we should remand for the district court to decide whether the trial testimony was willfully and materially false, or whether we should instruct the district court that it cannot apply the enhancement as a matter of law. This in turn requires us to address Johnson’s arguments that the sentencing enhancement is precluded because his allegedly perjurious trial testimony was not a ‘significant further obstruction’ under Application Note 7 to U.S.S.G. § 3C1.1. Johnson claims that the trial testimony did not actually hinder or impede the government’s investigation or prosecution of the underlying obstruction offense and that enhancing the sentence for the underlying grand-jury perjury conviction based on the later trial perjury is impermissible double counting.” Id. at 4-5.

Held:We vacate the sentence and remand for resentencing without the limiting instructions Johnson seeks . . . . Id. at 5. “Applying the obstruction enhancement to Johnson’s false trial testimony does not impermissibly penalize him twice for the same conduct if the district court finds that his trial testimony was false, willful, and material.” Id. at 5.

Of Note: You’ll search in vain for the government’s arguments on the obstruction enhancement in its answering brief. The government whiffed, those arguments aren’t there. Id. at 9 & n.1. So this is waiver by the Feds, and a win for Mr. Johnson, yes? No. The Ninth ordered additional briefing and then reaches (late) government arguments. Id. 
  Sauce for the goose, sauce for the gander: waiver was waived for the government in Johnson, so invoke footnote one when that defense argument didn’t quite make it into the appellate briefs.  

How to Use: It is a disappointing (albeit not terribly surprising) new rule that if one lies in a trial, about allegations of previously lying to agents or a grand jury, a hit with the obstruction guideline isn’t double-counting. Id. at 13. 
  However, note that Johnson here managed to lie in new and novel ways before the petit jury – different lies than those given to the grand jury and agents. If Johnson had simply repeated the identical lies before the grand and petit juries, would the obstruction of justice enhancement be available? That remains an unresolved question: the Ninth specifically dodges the issue in Johnson. See id. at 10 & n. 2. 
  For our clients who to lie more consistently and less creatively than Johnson, footnote two may help avoid a two offense-level hit at sentencing.
For Further Reading: In 2007, former vice-presidential aide “Scooter” Libby was convicted of perjury, false statements, and obstruction of justice. Do you know the difference between these different ways of lying? For a short and accessible explanation for the differences between these federal crimes of dishonesty, see Daniel Engber, How Many Ways Can you Say ‘Lie?’, available here.


Steven Kalar, Federal Public Defender, Northern District of California


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Monday, February 01, 2016

Liao v. Junious, No. 14-55897 (1-29-16)(Trott with Pregerson and Stafford, D.J.). 

The 9th reversed denial of petitioner's IAC claim.  The petitioner had alleged his counsel was ineffective because counsel failed to get a sleep study conducted that would have bolstered pensioner's "sleepwalking" defense.  The 9th agreed, because a sleep study would have supported the defense, added credence, and lent credibility to the expert.  Moreover, the state court had granted a motion for such a study BUT the court clerk had told counsel it was denied.  The 9th found this was prejudicial.
The decision is here:


Sunday, January 31, 2016

Case o' The Week: Justice is Blind, But DJs Should Take a Peek - In re Grand Jury Investigation -- Attorney-Client Privilege and the Crime Fraud Exception

 Should a district court actually look at attorney-client docs, before deciding they are not privileged and compelling their disclosure?

“Yep,” holds the Ninth, in a very welcome case of first impression.
 In re Grand Jury Investigation, No. 15-50450 (9th Cir. Jan. 14, 2016) (Ord.), order and opinion available here.

NB: The opinion filed Jan. 14, 2016 was withdrawn so it could be redacted. See also 2016 WL 158595. The opinion on the Ninth’s web site appears redacted (compare it to the WL opinion), but this case should not be cited until clearly re-issued. 

Players: Decision by Judge Gould, joined by Judge Berzon and Sr. DJ Steeh III.

Facts: Appellant Corporation was a call center that marketed surgical devices. Id. at 4. The FDA began an investigation regarding the Corp.’s advertising. Id. 

Over time, three attorneys associated with the Corporation or medical centers corresponded with the FDA about the FDA’s warning letters. Id. The government alleged that these letters contained false statements designed to obstruct the FDA investigation. Id. 

The Feds caused grand jury subpoenas to be served on the three attorneys, under the crime-fraud exception to the attorney-client privilege. Id. at 4-5. The attorneys did not fully comply, the government moved to compel, and the district court granted the motion. 

The district court found that there was independent, non-privileged evidence that the lawyers’ services were obtained in furtherance of and sufficiently related to ongoing crimes. Id. The court did not, however, hold an in camera hearing, and did not review the disputed documents. Id.

Issue(s): Must “district courts . . .  review documents in camera before deciding whether they should be produced under the crime-fraud exception[?]” Id. at 7.

Held:We agree with the Sixth Circuit. While in camera review is not necessary during step one to establish a prima facie case that the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme, a district court must examine the individual documents themselves to determine that the specific attorney-client communications for which production is sought are ‘sufficiently related to’ and were made ‘in furtherance of the intended, or present, continuing illegality.’” Id. at 8 (internal citations and quotations omitted).

Of Note: This decision (once it is published) will be the first written opinion in the Ninth requiring in camera review of documents, potentially subject to the attorney-client privilege, before compelled disclosure. Id. at 7. Given the order of the court regarding redaction (with the redacted opinion that accompanies the order, and the odd Westlaw reference), use care in how you refer to In re Grand Jury Investigation in the short term. Hopefully, however, this welcome new Ninth rule will stick in the final version of the decision.

How to Use: This case involves civil attorneys entangled in a corporation’s alleged missteps. The holding, however, is of broader interest for indigent defense.  

This brief opinion lays out the two-step approach to evaluate whether counsel’s documents are subject to compelled disclosure over attorney-client privilege objections. Id. at 6 (discussing the first step: prima facie showing of crime-fraud, done without in camera review, and the second step: in-camera review of docs to see if they are sufficiently related to, and made in furtherance of, the illegality).

It is a thus a very good read for crim defense counsel. (It is considerably more fun to serve subpoenas, than to be served with one). In re Grand Jury is an important decision that explains how to evaluate attorney-client privilege, and adds a welcome layer of protection before Feds can snag our files. 

 Also mull the decision when defending a white collar case, when the Feds have built their case on the backs of corporate counsel. If this in camera procedure didn’t happen, those documents were improperly obtained and should remain privileged and out-of-bounds (we’ll argue).
For Further Reading: For a thoughtful discussion of this corner of law, see Bethany Lipman, Invoking the Crime Fraud Exception: Why Courts Should Heighten the Standard in Criminal Cases, available here

Image of “Confidential Document Attorney-Client Privilege” stamp from

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


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Sunday, January 24, 2016

Case o' The Week: Interpreting Clarity - James and the Rule of Acerbity

Hon. Judge Alex Kozinski

“This rule of acerbity, i.e., the rule of lenity stood on its head, is not how the criminal law is supposed to work.”
  United States v. James, 2016 WL 158559, *8 (9th Cir. Jan. 14, 2016), decision available here. (Kozinski, J., dissenting).

Players: Decision by Judge Tallman, joined by Sr. DJ Piersol. Dissent by Judge Kozinski.  Hard-fought appeal by D. Az. AFPD Keith Hilzendeger.

Facts: Twenty-eight year old T.C. was severely disabled by cerebral palsy. Id. at *1. She was largely nonverbal, and communicated displeasure with grunts or nodding her head. Id. T.C.’s legal uncle, James, was discovered having sex with her (while inside the boundaries of a reservation). Id. at *2. 

James was charged with aggravated forcible sexual assault under 18 U.S.C. § 2242(2)(B) – which prohibits sex with a victim who has the mental capacity to consent, but is “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” Id. at *1. 

The jury returned a guilty verdict, and the district court then granted James’s Rule 29 motion. Id. at *2. The government appealed.

Issue(s): “This case turns on the breadth of the ‘physically incapable’ standard in § 2242(2)(B) for punishing a sexual act with an individual with the physical incapacity to decline participation in or communicate unwillingness to engage in the act.” Id. at *3.

Held: “We hold that the district court erred in granting that acquittal, although we acknowledge that determining what constitutes physical incapacity under § 2242(2)(B) is a difficult issue of first impression in our circuit. Applying the familiar standard under Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we hold, contrary to the district court's decision, that there was sufficient evidence to support the jury's determination by proof beyond a reasonable doubt that James violated the statute under which he was found guilty.” Id. at *1. 

After surveying the dearth of case law, we find the cases more persuasive which punish conduct under the broader ‘physically incapable’ standard rather than the narrower ‘physically helpless’ standard because it will allow more cases to be submitted to the good judgment of a jury.Id. at *5.

Of Note: Judge Kozinksi pens a doozy of a dissent. “I am puzzled and confused by Part III of the opinion . . .  The whole enterprise seems misguided because the statute is clear and thus not reasonably susceptible to conflicting interpretations.” Id. at *7 (Kozinski, J., dissenting). “I . . . disagree with the methodology employed by the majority in seeking to pump up the statute beyond its ordinary meaning . . . . This rule of acerbity, i.e., the rule of lenity stood on its head, is not how the criminal law is supposed to work.” Id. at *8.

Judge Kozinski reviews the district court’s compelling recitation of facts showing that T.C. actually had the ability to communicate unwillingness – the gravamen of the statute charged. Id. at *8-*11. (District Judge Neil Wake, by the way, was the jurist who granted the Rule 29 motion). 

The dissent is well worth the read, with a dispassionate analysis of the statute’s language, and frank concern for the autonomy of the physically disabled.

How to Use: The majority chides the district court for considering state decisions while interpreting a federal statute. Id. at *4. Keep those James passages handy when the government tries to incorporate (bad) state law to interpret the meaning of federal criminal statutes.
For Further Reading: Whither thou goest, beloved Rule of Lenity? Judge Kozinski argues the majority flips the rule upside down – taking a clear statute, exploring interpretations, and then expanding the definition in the statute against the defense. 

For an equally candid assessment of the decline of the Rule of Lenity (with a frank contrast to the rise of qualified immunity), see Matt Kaiser, Another Reason It’s Better to be A Cop Than Accused of a Crime, available here.

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


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