Sunday, January 25, 2015
The kids are all right.
Richard Ortiz – well, less so.
United States v. Ortiz, 2015 WL 294305 (9th Cir. Jan. 23, 2015), decision available here.
Players: Decision by Judge Tallman, joined by Judges McKeown and Owens.
Facts: Ortiz was charged with being part of a large Mexican drug trafficking organization. Id. at *1. Ortiz has been released on another federal charge, and was dealing for the organization while on supervised release. Id.
His probation officer – who spoke Spanish “a little” – had spoken with Ortiz six to ten times while he was on supervision, and had met him ten to fifteen times, but had only spoken to him in English. Id.
During the trial, and over defense objection, this P.O. was called to identify Ortiz’s voice on wiretaps, as he spoke Spanish. Id. The P.O. testified that she recognized English phrases in the call, like “all right” as a distinctive tendency of Ortiz. Id.
Ortiz was convicted and sentenced to fifteen years. Id.
Issue(s): “Ortiz contends the district court erred in admitting the opinion testimony of his United States probation officer, Angela McGlynn, identifying Ortiz’s voice speaking primarily Spanish on wiretapped calls because McGlynn does not speak Spanish and had only heard Ortiz speak English.” Id. at *1 (fn. omitted).
Held: “We have never before determined whether a person who has not heard the speaker in a specific language and speaks only “a little” of the language herself, but also recognized the voice from a handful of English words in the taped conversations plus multiple other English conversations, has the ‘requisite familiarity’ to authenticate a voice under [FRE] 901(b)(5). Id. at *2. Here, [the Probation Officer’s] familiarity with Ortiz’s voice was substantially more than the minimal familiarity Rule 902(b)(1)(5) requires for admission of lay identification testimony.” Id. at *3. “Since we hold the district court did not abuse its discretion in ruling on the authentication of his voice on the recordings, we affirm Ortiz’s conviction.” Id.
Of Note: The standard of review, for the Ninth's analysis, is “abuse of discretion.” Id. at *2. Judge Tallman quotes from the seminal ‘09 Hinkson en banc decision, explaining that the Ninth will uphold the evidentiary ruling unless it is “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” Id. at *2. Hinkson's abuse-of-discretion test is a forgiving standard, with much deference afforded to the district judge. Of historical interest: the D.J. in Hinkson case was Judge Tallman, sitting by designation. See blog here.
How to Use: The voice I.D. in Ortiz – well, it stinks. The prosecutor first specifically asked the Probation Officer if she could recognize Ortiz’s voice – then played the P.O. the calls. Not surprisingly, the P.O. identified Ortiz. Id. at *2 n.3 Why wasn’t this identification procedure unduly suggestive (thus violating due process) under Neil v. Biggers, 409 U.S. 188, 199 (1972)? Maybe it was – but Ortiz didn’t raise it before the district court or in his opening brief, and the Ninth finds the issue waived. Id. at *2 n.3. Beware of the suggestive ID issue lurking with voice-identification issues (and raise the early!)
For Further Reading: Eric McDavid was sentenced to twenty years on federal charges, despite a vigorous trial defense that he was entrapped by the FBI’s young female informant.
After he served years in federal prison, a slew of documents have now appeared revealing that the informant, Anna, exchanged love letters with her target (a romance denied and downplayed by prosecutors in the trial). It turns out that the FBI had in fact ordered a polygraph of Anna while she was working on McDavid– then mysteriously cancelled it. (The name of the AUSA who signed off on the polygraph has now been redacted). Brady / Giglio evidence, that went to the heart of a vigorous entrapment defense, never disclosed during a very high profile federal trial?
For a compelling piece on a very troubling prosecution in the ED Cal, see Ben Rosenfeld, Eric McDavid Deserves Answers from Federal Officials Who Kept Information from Him at Trial, available here.
Image of “The Kids are All Right” from http://www.listal.com/viewimage/4475458
Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org
Monday, January 19, 2015
Case o' The Week: Down for the Count(s) - Hertler and Max Time for Supervised Release Violations
Time served on supervised release violations reduces exposure on future S/R terms.
Except when it doesn’t.
United States v. Hertler, 2015 WL 178350 (9th Cir. Jan. 15, 2015), decision available here.
Players: Decision by Judge Paez, joined by Judges Pregerson and Watford. Hard-fought
appeal by D. Montana AFPD Andrew Nelson.
|Hon. Judge Richard Paez|
Facts: Hertler plead guilty to possession and distribution of child porn. Id. at *1. In addition to a custodial term, the district court imposed a thirty-six month concurrent term of supervised release. Id. Soon after release Hertler’s PO filed a Form 12 alleging several violations. Id. Hertler admitted the allegations, was revoked, and sentenced to “consecutive terms of nine months of imprisonment on Count 1 and three months on Count 2.” Id. The court also imposed concurrent terms of supervised release on each of the two counts. Id. Within two weeks from release on this violation, Hertler was charged with a new Form 12. Id. Hertler admitted to possessing sexually explicit movies, was revoked, and was sentenced to fifteen months of imprisonment on Count 1 and one month on Count 2, to run concurrently. The court also imposed a twenty month term of supervised release on Count 2. Id. at *2.
Issue(s): “[ ] Hertler appeals a postrevocation term of supervised release. He argues that the new term of twenty months exceeds the maximum period that can be imposed under 18 U.S.C. § 3583(h). That subsection authorizes a district court to impose a postrevocation term of supervised release up to the statutory maximum, but requires the court to reduce the length of supervised release by ‘any term of imprisonment that was imposed upon revocation of supervised release.’ Hertler contends that the phrase ‘any term of imprisonment’ in § 3583(h) refers to any term of imprisonment imposed for all offenses following the latest revocation of supervised release. He therefore argues that the district court erred when it construed this clause to refer only to all terms of imprisonment imposed for a single underlying offense. He further argues that, as a result of this error, the district court concluded that he was eligible for up to thirty-two months of additional supervised released when he should have been sentenced to no more than nine.” Id. at *1.
Held: “[W]e agree with the construction of ‘any term of imprisonment’ adopted by the district court, the Eighth Circuit . . . and the Fifth Circuit . . . . We therefore affirm.” Id.
Of Note: The rule of lenity takes a ding in this opinion. Id. at *6. Judge Paez concludes that there is no “grievous ambiguity” in the statute, and that § 3583’s “text and structure allow us to conclude that the most reasonable interpretation of § 3583(h) is the one advanced by the government.” Id. at *6. A disappointing discussion of our favorite rule of statutory construction.
How to Use: Grab a scratch pad and a calculator.
In a nutshell, the supervised release statute requires the district court to knock time served for violations off of the maximize term of supervised release. Id. at *3. It is established law that the court should aggregate all of the time served on various violations, to determine the maximum term of supervised release. Id. at *2. Hertler (compellingly) argued the court should aggregate all violation time served on various counts, and apply them against the sole concurrent supervised release max. Id. The Court doesn’t buy it, and ultimately agrees with the government that “any term of imprisonment” in Section 3583 (the supervised release statute) refers to “terms of imprisonment imposed with respect to the same underlying offense.” Id. at *4 (emphasis in original).
Add Hertler to your S/R research files – you’ll need it (and an abacas) to calculate your client’s Form 12 exposure when the original conviction had multiple counts.
For Further Reading: ND Cal CJA Attorney Mark Vermuelen was part of a team that recently secured a remarkable victory in the ED Cal. See Sacramento Bee article here.
The new deal for Eric McDavid came after staggering Brady / Giglio violations were revealed – violations never adequately explained to presiding Judge England. Id. Yet another outbreak, in Judge Kozinski’s “epidemic of Brady violations.” See blog here.
Image of the Honorable Judge Richard Paez from http://www.eastvalleytribune.com/image_4346b866-e090-11df-83f3-001cc4c03286.html
Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org