Sunday, April 20, 2014

Ninth Not Crazy for Limitations on Defense Shrink: Christian and Defense Experts

Hon. Raymond C. Fisher

  A shrink finds a defendant suffers from psychosis, has probable delusions, and a borderline personality disorder, but the psych can’t testify as a defense expert on diminished capacity.
  Crazy? The Ninth thinks so, too. United States v. Christian, 2014 WL 1491887 (9th Cir. Apr. 17, 2014), decision available here.

Players: Decision by Judge Fisher, joined by Judge Berzon. (Good) concurring and dissenting decision by Judge Alarcón. Id. at *10-*11.

Facts: When Christian’s car was repossessed he was displeased with the inability of the police department to help. Id. at *2. So displeased, in fact, that he emailed threats to a police officer and to a prosecutor. Id. He was tried before a jury for emailing threats, in violation of 18 USC § 875(c). Id. at *3. 
  Before this federal trial (near the time the emails were sent), Christian had been evaluated by a psychologist for competency in unrelated state proceedings. Id. That psych considered Christian incompetent, diagnosed him with a psychosis, and recommended that he be sent to a facility for therapeutic care and treatment. Id. 
  Federal defense counsel noticed this psych as an expert to testify on diminished capacity. Id. The district court refused to allow this testimony, because of the different legal standards for competency and dim cap. Id. 
  With no psych evidence, a dim cap instruction was denied, and Christian was convicted. Id. at *2, *3.

Issue(s): Christian “argues that the district court should have allowed his expert, a psychologist who had earlier examined him for competency to stand trial, to testify regarding his diminished capacity defense and that he was entitled to a jury instruction on diminished capacity even without such expert testimony.” Id. at *1.

Held: “[T]he district court abused its discretion by excluding Christian’s expert solely because he examined Christian for competency rather than for diminished capacity. Instead of focusing exclusively on the different legal standards governing the conclusions the expert was asked to draw, the district court should have evaluated whether the substance of the expert’s testimony would have helped the jury decide whether Christian could form the specific intent to threaten the recipients of his emails . . .” “[T]he court should not have excluded such testimony without conducting a voir dire or otherwise giving the expert an opportunity to explain how he could provide meaningful and relevant testimony on diminished capacity from the competency evaluation that he had conducted . . . We . . . vacate Christian’s conviction and remand. . .” Id. at *2.

Of Note: Judge Fisher provides a thoughtful analysis of the true focus of the inquiry in this case – the relevance of the omitted testimony. Id. at *5-*7. Christian is one of the best opinions on defense expert witnesses to come out of the Ninth: it is well worth a close read. In addition to the valuable core holding, Judge Fisher sets forth a great new rule for the Ninth: “We . . .  hold that the rule requiring a new trial when a district court erroneously admits prejudicial expert testimony in a civil trial, . . . also applies to the erroneous exclusion of expert testimony from a criminal trial.” Id. at *2. (internal citation and quotations omitted). There is, admittedly, a caveat or two to this new rule. See id. at *7 & n.3. Nonetheless, very welcome new law.

How to Use: There are few things more aggravating than a court who won’t allow a clean defense offer of proof. That happened here: “the district court several times interrupted defense counsel’s attempt to make a more complete offer of proof.” Id. at *4. 
  Fortunately, the Ninth dislikes this practice, too. In Christian, the interruptions helped the defense dodge the tough plain error standard on appeal. Id. This passage is a handy little trial tool to shoehorn in a defense offer of proof.
For Further Reading: What really determines a federal sentence? The offense? The judge? Or the largely unfettered power of AUSAs? Prosecutors “have immense discretion to decide which charges to prosecute and what charging concession to offer in the course of plea bargaining, yet a paucity of empirical research exists on these consequential decisions.” Assoc. Prof. Brian Johnson, “The Missing Link: Examining Prosecutorial Decision Making Across Federal Courts.” 
   This interesting new 150+ page empirical report, relying on data from the DOJ, is now available here

Image of the Hon. Raymond Fisher from

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


Labels: , , , , , ,

Thursday, April 17, 2014

US v. Emmett, No. 13-50387 (4-17-14)(Nelson with Paez; dissent by Nguyen). 

The district court denied defendant's motion for early termination of SR for failing to adequately explain why the court denied the motion.  There was no response by probation or the prosecutor.  The defendant had argued that he had obeyed the SR terms, his offense was not violent, SR was a waste of resources, and that he was not receiving any benefit.  The court stated that he denied it because it was not undue hardship.  It was not an abuse of discretion to focus on one factor or to weight that factor.  It was an abuse of discretion not to address the issues raised, or have a hearing.  More was required.  Dissenting, Nguyen would affirm.  The motion was short and seemingly copied and the court should have wide latitude.  Form is being elevated over substance.

US v. Christian, No. 12-10202 (4-17-14)(Fisher with Berzon; partial dissent by Alarcon). 

The 9th vacated two counts of sending threats via email because the district court precluded the defense expert from testifying about diminished capacity.  The defendant emailed threats to the chief prosecutor of North Las Vegas after the office could not help the defendant in allegedly retrieving his car. The expert, a psychologist, had examined the defendant for competency.  The district court focused on the purpose for preclusion; the court should have examined the substance, which was that the defendant suffered from extensive psychosis and delusions and had difficulty forming intent.  A court must look at the medical diagnosis and not opinions.  The court should have, at the least, allowed defense counsel to voir dire the expert to get the diagnosis out.  The convictions were vacated.  The 9th held too that the court did not abuse its discretion in not instructing the jury on diminished capacity absent expert testimony.  There was evidence of the defendant being disturbed but the evidence was not sufficient for an instruction to find an abuse of discretion.  Alarcon dissented, arguing there was sufficient evidence to require a diminished capacity instruction. 

Of special note is the extension of a civil trial rule, Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014)(en banc) to criminal matters.  In Barabin, the 9th held that erroneous admission of prejudicial expert testimony requires a new trial.  Conversely, applying the reasoning to the criminal context, the erroneous preclusion of expert testimony requires a vacation of conviction and a remand for a new trial.  Barabin applies here.

US v. Odachyan, No. 11-50253 (4-17-14)(Clifton with Dorsey, D.J.; concurrence by Reinhardt). 

How far does a judge have to go to evidence bias at sentencing?  Here, the court approached the line in sentencing when talking about immigrants and future crimes.   The defendant here was an Armenian immigrant who pled guilty to health care fraud.  At sentencing, the court stated that he was inclined to the high end of the guideline; and that he was amazed at immigrants who come to this country, seeking a better life, and then engaged in crime, and when caught, try to use their terrible past as an excuse or mitigation.  The 9th does not find that the statement reflected such a high degree of favoritism or antagonism to call into question fairness.  The statement here was in response to the defendant's argument referring to his past as mitigation.  At most, it demonstrated frustration with the type of argue.  Reinhardt, concurring, writes about the improper nature of the statement, even if it does not rise to the unconstitutional level.

Tuesday, April 15, 2014

United States v. Charles, No. 12-50150 (4-15-14)(Fernandez with Graber and Murguia). 

The defendant here was convicted of possession with intent to distribute crack.  He was determined to be a career offender and sentenced under that provision.  His appeal concerns the Fair Sentencing Act and guideline crack amendments 750 and 759.  He loses.  The defendant was sentenced before the FSA had opened the leniency door a crack.  The 9th and all other circuits have held that the FSA is not retroactive.  No different here.   In this case, the 9th held emphatically that the FSA was prospective and was not a mandate to reduce past crack sentences.  As for the guideline amendment for crack sentences, it doesn't apply to those sentenced as career offenders.  The defendant here was sentenced as a career offender.  The two provisions are mutually exclusive. 

Sunday, April 13, 2014

Case o' The Week: Easy Sell for Involuntary Meds - Gillenwater, Sell, and Restoration of Competency

  What stands between a government shrink with a needle, and our incompetent clients?
  Less, now.                                                                                                        
United States v. Gillenwater, 2014 WL 1394960 (9th Cir. Apr. 11, 2014), decision available here.

Players: Decision by Justice O’Connor, joined by Judges Tallman and Bea.  

Facts: Gillenwater felt he had been exposed to asbestos while renovating the Las Vegas Flamingo Hotel. Id. at 1. Convinced the government was helping to cover up this exposure, he wrote a series of threatening emails to government employees. Id. When agents showed up at his house to tell him to knock it off, he met them with gun in hand – but put it away, talked to the agents, and acknowledged that he shouldn’t sent these emails. Id. Two days later, he allegedly started sending them again. Id. When he was arrested, the feds found guns and ammo, and while in custody, Gillenwater allegedly sent a threatening postcard to an OSHA employee. Id. at 2. The district court ordered a competency evaluation, Gillenwater was found incompetent, and the government psychiatrist recommended medication (that Gillenwater refused). Id. The government moved for involuntary medication under Sell, and after a number of hearings with conflicting psych testimony, the district court agreed. Id. at *3. After appeals and remands, the case ended up back before the Ninth on the involuntary medication issue. Id. 

Issue(s): “Gillenwater contends that the government did not meet its burden on all four Sell factors and that the district court’s order authorizing his involuntary medication must therefore be reversed.” Id. at *4.

Held: “While recognizing the important interests at stake for both the government and Gillenwater, we conclude that the district court did not err in authorizing Gillenwater’s involuntary medication.” Id. at *1.

Of Note: Sell v. United States, 539 U.S. 166 (2003) is the seminal Justice Breyer decision on the rights of defendants facing involuntary medication to restore competency.  Justice O’Connor’s decision in Gillenwater arguably waters down the Sell factors. Of most concern, the decision distinguishes authority on the first Sell factor: “the important government interests factor.” 
   Here, Gillenwater was only looking at a guideline range of 33-41 months, had already served 32 months, and his mental disorder clearly drove the conduct. Gillenwater, 2014 WL 1394960 at 4-5. In previous cases, each of those facts would have cut against involuntary medication. Here, Justice O’Connor finds an “important government interest” nonetheless. 
  It’s a discouraging opinion for those representing vulnerable folks facing restraining straps and a needle full of haloperidol in the hands of a government shrink.

How to Use: Comparatively low sentencing range, most of the sentence already served, mental illness as a mitigating factors – these are facts that traditionally undercut involuntary medication. How does one distinguish Gillenwater when fighting involuntary medication? Well, there were some admittedly bad facts here: guns throughout the investigation, threats to choke, rape, and kill government employees, and a jailhouse threat postcard (why is there always the jailhouse letter, in a threats case?) Id. at 2-5. On less – "threatening" – facts, there may be some life left in the first Sell “important interest” factor.
For Further Reading: The Sentencing Commission voted to reduce the drug guidelines by 2 offense levels! See USSG Press Release here. Not effective until Nov. 1, 2014, but DOJ instructed USAOs not to object to variances for current cases, in anticipation of that amendment! See DOJ Press Release here. 
 What’s the next step towards just sentencing for our drug clients? Retroactivity. The comment period for the Commission is fast approaching for this critical issue – an important time to speak out for our clients. See Sentencing Commission Comments description here 

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

Labels: , ,