Sunday, April 15, 2018

Case o' The Week: Faster than a speeding jet - Shimabukuro and Custodial Terms for Supervised Release

  Defense counsel flew for six hours, from SFO to Honolulu, after oral argument in San Francisco
  The Ninth was considerably faster: it took only four hours to deliver the per curiam victory.
  United States v. Shimabukuro, 2018 WL 1755526 (9th Cir. Apr. 12, 2018), decision available here.

Players: Per curiam defense win by Chief Judge Thomas, Judge Friedland, and DJ Olguin (delivered four hours after oral argument! See argument link here). 
  New speed-to-victory record set by First Ass’t Fed. Public Defender Alexander Silvert, argued by Fed. Defender Peter Wolff, District of Hawai’i.

Facts: Shimabukuro’s supervised release was revoked three times over eight years. Id. The second time he was sentenced to time served, and 41 months of supervised release, “with 150 days of intermittent confinement at the Federal Detention Center in Honolulu.” Id.
  When he violated the third time, he was sentenced to seventeen months of imprisonment with no term to follow. Id. Shimabukuro protested that this term exceeded the maximum “cap,” if the court counted the 150 days of intermittent confinement from the second supervised release revocation. Id. (referring to the custodial cap set forth in the version of 18 USC § 3583(e)(3) in effect in at the time of the original offense). 
  The district court disagreed, concluding that intermittent confinement does not count as time “in prison.” Id.

Issue(s): “Defendant Wallace Shimabukuro’s appeal of the term of imprisonment imposed after he violated the conditions of his supervised release requires us to decide whether intermittent confinement counts against the cap 18 U.S.C. § 3583(e)(3) (2002) places on the amount of time ‘in prison’ a district court may impose when revoking a defendant’s supervised release.” Id. at *1.

Held: “We hold that it does.” Id. “The 150 days that Shimabukuro spent at the Federal Detention Center constitute time spent ‘in prison’ and thus should have been included in the district court’s calculation of the aggregate time it previously had required Shimabukuro to spend ‘in prison.’ Any other result would defy the plain language of the statute.” Id. at *2.

Of Note: Custodial “aggregation” is from the old-school version of § 3583(e)(3). The statute was amended in April 2003 (a month after Shimabukuro’s original conspiracy offense was completed). Id. at *1 & n.1. 
  The old version of § 3583(e)(3) – at issue here – required district courts to aggregate prison time imposed and credit that towards a custodial “cap” for revocations. Id. at *2 & n.3. 
  Keep an eye on April 2003, and the original offense date, as the dividing line: that good aggregation / custodial cap for supervised release violations is only available to our clients who’ve been entangled in the federal system for fifteen years or more. Id. at *1 & n.1.

How to Use: Like “conditional pleas,” the “intermittent confinement” in Shimabukuro is a mythical beast not found in NorCal. The Bay Area is one of the few large metropolitan areas that have been cheated out of a Federal Detention Center. See generally list of prisons here
  When intermittent confinement is attempted in our local county jails it inevitably goes poorly: low-security federal defendants have been warehoused in full-lock down cells, way out in Sacramento jails, for intermittent weekend confinements.
  Consider this aggravating local quirk as a basis for a Section 3553(a) variance. As a practical matter, a ND Cal client can’t realistically serve an intermittent confinement sentence that is permitted in the guidelines – a sentence that is available to defendants in Hawaii, and Texas, and Florida, and Louisiana, and Pennsylvania, and the many other districts that have FDCs.
For Further Reading: A "just enough" Sentencing Commission has managed to adopt a new slate of amendments. See press release, here

    (The Commissioners don't exactly look thrilled at the news.)  
   A “reader friendly” version of the amendments can be found here
  Take a close look at “Alternatives to Incarceration for Nonviolent First Offenders:” there's some good new commentary language that is fair game to be used at sentencing now, before the Nov. 1, 2018 effective date.

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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Tuesday, April 10, 2018

US v. Gilmore, No. 17-10142 (4-5-18)(Adelman w/Paez & Ikuta).

The States are going to pot.  Congress recognizes this and authorized section 538, which barred DOJ from using appropriated funds to prevent States from implementing their own laws regarding medical marijuana. In US v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), the 9th allowed defendants to enjoin expenditure of such funds on federal trafficking prosecutions.  Alas, for the defendants here, this Act, and injunctive relief, does not extend to marijuana grown on federal land.  Even if the defendants grew the pot inadvertently on federal land, and had complied with all state laws, the 9th holds that the government is not required to prove knowledge in this instance.  Defendants other arguments, such that it affected the availability of medical marijuana, or that public lands were included, went up in smoke.

The decision is here:

Sunday, April 08, 2018

Case o' The Week: $ to Spend, if BLM - Gilmore, Section 538, and Medical Marijuana on Fed Property

 A productive medical marijuana grow needs modern irrigation systems, detailed fertilizer schedules, and very good maps of the boundaries of federal lands.
United States v. Gilmore, 2018 WL 1631680 (9th Cir. Apr. 5, 2018), decision available here.

Players: Decision by visiting District Judge Adelman, joined by Judges Paez and Ikuta. Hard fought appeal by ED Cal AFPDs Sean Riordan and Ann C. McClintock.

Facts: In 2012, agents discovered 118 marijuana plants on a California grow. Id. at *1. 
  (Editor note: 118 plants? That’s a federal case?) 
  The marijuana garden was on federal land. Id. 
  The government indicted three defendants with conspiracy to manufacture marijuana and manufacture of marijuana. Id. Two defendants earned a mistrial when the jury could not arrive at a unanimous verdict. Id. 
  The Ninth then decided United States v. McIntosh, 833 F.3d1163, 1177 (9th Cir. 2016). Id. The Ninth “held that defendants may seek to enjoin the expenditure of [federal] funds on federal drug trafficking prosecutions of individuals who engaged in conduct authorized by state medical marijuana laws and who fully complied with such laws.” Id. at *1. 
  The defendants in Gilmore moved to enjoin the prosecution pursuant to § 538 (the “Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014)). The district court denied their motion. Id.

Issue(s): “In this case, the district court refused to issue an injunction because the subject marijuana grow operation occurred on federal land under the control of the Bureau of Land Management (“BLM”).” Id. at *1.

Held: We affirm. The restrictions imposed by § 538 do not apply to marijuana cultivation on federal land.” Id. at *1. 
  “Section 538 does not limit the government’s ability to enforce federal drug laws on federal land. Rather, as we noted in McIntosh, the provision applies narrowly, to those specific rules of state law that authorize the use, distribution, possession or cultivation of medical marijuana. . . Nothing in California law purports to authorize the cultivation of marijuana on federal land. Even if state law tolerated marijuana cultivation on public land, federal law forbids such use . . . .  And enforcing that prohibition does not ‘prevent’ California from otherwise implementing its medical marijuana regime.” Id. at *2 (citation omitted).

Of Note: Is the 118-plant prosecution in Gilmore a sad legacy of former, less-tolerant era of federal priorities? 
  Maybe not. 
  In Maine, the U.S. Attorney appointed by President Trump explained that he would be focusing on traffickers of “hard drugs” such as opiates, cocaine, and crack – not on marijuana cases. See “Marijuana users not a priority for Maine U.S. Attorney,” available here
  We may be less progressive than Maine, here on the Left Coast. In Oregon, the Trump-appointed U.S. Attorney has described “significant concerns about the state's current regulatory framework and the resources allocated to policing marijuana in Oregon.” See U.S. Attorney: A call for transparency and action on marijuana, available here .
  And in the ED Cal, Trump-appointed U.S. Attorney McGregor “Greg” W. Scott “used to be a hardcore, anti-cannabis drug warrior,” one defense attorney has opined. See “Here’s Where US Attorneys Stand on Cannabis Enforcement, available here
   Acting US Attorney Alex Tse in the ND Cal has been carefully mum– but candidates for his gig have been famously vocal in their opposition to medical marijuana. See “Russoniello outlines top priorities,” available here.; see also article here

How to Use: Unfortunately, in Gilmore Judge Adelman also rejects a mens rea defense: “it is irrelevant whether they knew the garden was on federal land.” Id. at *2. 
  Beware of Gilmore if a grow case involves federal land – those BLM parcel maps are now particularly important evidence, in those rugged NorCal mountain ranges.
For Further Reading: The prohibition against the expenditure of funds for the federal prosecution of medical marijuana remains the law of the land (for another six months!). See Rohrabacher-Blumenauer Amendment is Renewed Through September 2018, available here.

Image of “Federal Land in California” by Phillip Reese and Nathaniel Levine, from

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


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Monday, April 02, 2018

US v. Shaw, No. 13-50136 (3-29-18)(Schroeder w/Nguyen & Hurwitz).

On remand from the Supremes, the 9th affirmed a bank fraud conviction.  The appellant failed to challenge the jury instruction's disjunctive form. Here, the defendant created a scheme that drew funds in the account of a bank depositor and account holder.   The siphoning occurred using PayPal. The bank suffered no losses; PayPal and the depositor did.  The Supremes and the 9th agree that a scheme to take money from a depositor's account violates the statute, and the bank need not have suffered a loss.  The remand came however over the jury instruction.  The instruction read "deceive, cheat OR deprive." The statute, under 18 USC 1344(1), reads "AND." Does this get the defendant off the hook?  No, because the defendant failed to challenge the "disjunctive" language of the instruction (he challenged the theft from the bank). Statutory interpretation is not the disjunctive language.  As a result, the defendant had not properly objected.  Moreover, even if he had objected, any error would be harmless.

Still, this is an issue that the Supremes identified, and the 9th sidesteps.  Keep this in mind for 1344 bank fraud prosecutions.

A hard fought appeal by Jim Locklin, FPD Cal Central (Los Angeles).

The decision is here:

Sunday, April 01, 2018

Case o' The Week: Ninth Psh-Shaw after SCOTUS Remand - Shaw and Bank Fraud Jury Instructions

 The good news, Mr. Shaw, is you won a remand from the Supreme Court of the United States.
  The bad news . . . 
United States v. Shaw, 2018 WL 1473599 (9th Cir. Mar. 27, 2018), decision available here.

Players: Decision by Judge Schroeder, joined by Judges Nguyen and Hurwitz. Hard-fought appeal by CD Cal AFPD James Locklin.

Facts: Shaw ran a scheme that siphoned off funds of a bank depositor, through online payment and PayPal. Id. at *1. The losses were borne by the victim and by Pay Pal – not the bank. Id. Shaw was convicted of bank fraud, and on appeal argued that he had not defrauded the bank within the meaning of the statute. Id. The Ninth affirmed the conviction, and the Supreme Court agreed on that issue. Id.
  SCOTUS remanded on a different issue, however, that the Ninth had not considered: the disjunctive form of the “scheme to defraud” instruction. Id. The instruction given during trial allowed a conviction if Shaw had intended to “deceive, cheat, or deprive,” but the parties in the Supreme Court agreed the instruction should be in the conjunctive. Id.

Issue(s): “The [Supreme] Court remanded to us to consider whether this argument was fairly presented below, and, if so, whether the instruction is lawful and, if not, whether any error was harmless in this case.” Id.

Held: “We have carefully reviewed the record. It shows that Shaw did object to the instruction given by the district court. But the objection was not on the ground that he urged in the Supreme Court . . . Accordingly, we conclude that the argument the Supreme Court identified for consideration on remand was not fairly presented to us or to the district court.” Id. at *2.

Of Note: Judge Hurwitz was a sub, on this case. The case was originally submitted to a panel that included the Honorable Judge Harry Pregerson. Id. at *1. When Judge Pregerson passed away, Judge Hurwitz was drawn by lot. As discussed in “For Further Reading” below, we’ll tragically be seeing more of these footnotes soon.

How to Use: This outcome is a tough break for Mr. Shaw, though the Ninth does tip a hat to defense counsel’s statutory interpretation argument that was “creative and consistent with the record.” Id. at *2. Nonetheless, the good holding from the Supreme Court remains: this jury instruction should be in the conjunctive. A flag of note for future bank fraud cases under 18 USC § 1344(1). Id.
For Further Reading: For those who care about the rights of the poor and the powerless, decades of vigilance by three remarkable jurists helped make the Ninth great: Judge Betty Fletcher, Judge Harry Pregerson, and the “Lion of the Left,” Judge Stephen Reinhardt. We’ve bid our sad farewells to Judges Fletcher and Pregerson -- we now mourn the passing of Judge Reinhardt.
The Honorable Judge Stephen Reinhardt
  There will be tributes a-plenty to a Judge who left a remarkable legacy in many fields: marriage equality, civil rights, the First Amendment, immigration law, and making sure our indigent clients got a fair shake when facing draconian criminal statutes and sentencing guidelines. Less well known is Judge Reinhardt’s many quiet contributions to protecting the Criminal Justice Act – like Judges Betty Fletcher and Harry Pregerson, he served many years on the Ninth’s Federal Defender Standing Committee.
  For those who have the privilege to have argued before Judge Reinhardt, you’ll remember the experience: either a great witticism that got everyone laughing and broke the tension during an uncomfortable argument, or the dogged and insightful questioning that had counsel wishing that podium clock would tick down a little faster.
  For a taste of the Judge, the scholar, and the man of passionate convictions, revisit Judge Reinhardt's (still correct) explanation of the unconstitutionality of AEDPA. Crater v. Galaza, 508 F.3d 1261, 1262 (9th Cir. 2007) (Reinhardt, J., dissenting from denial of rehearing en banc) (“Such a congressional breach of the federal judiciary's integrity and independence, of its duty to maintain the supremacy of the Constitution, and, indeed, of the constitutional structure itself, should not go unchecked by this court.”)
  Dean Erwin Chemerinsky has written a brief and thoughtful piece on Stephen Reinhardt, the jurist and the man, available here. Former clerk Joanne Mariner has penned a more personal, and moving, memory of the Judge, available here.
  Farewell to another legend and, in some respects, to a great era in our Circuit’s history.

Image of the Honorable Judge Stephen Reinhardt from

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


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Monday, March 26, 2018

US v. Kootswatewa, No. 16-10228 (3-23-18)(Warford w/Wallace & Sands)(Note: this is an AZ FPD case).

The 9th affirms convictions for the agg sexual abuse of a developmentally delayed child and a felony offense against a child while a registered sex offender.

In affirming, the 9th rejects two evidentiary issues and one misconduct allegation. At trial, the defense argued misidentification and contended that hearsay statements allowed were error. The 9th held that the admission of statements to a nurse practitioner were allowed under the medical diagnosis exception. Adequate foundation was laid. The 9th recognizes that some courts do not allow the identification of the perpetrator under this exception. However, the 9th does.

The victim’s prior statements to the officer, made soon after the attack, were admissible to rebut the defense attack that the statement had been coached by the mother. Although there were differences between the testimony and the statement, the prior statement was proper as it rebutted the charge the entire episode was fabricated. 

In closing, the prosecutor did not improperly assume the voice of the victim. The prosecutor started with a paraphrase, but quickly identified the source.  The prosecutor did say that the victim stated the defendant “lured” her to the trailer.  The victim actually stated that the defendant “took” her to the trailer. The error was harmless.

The decision is here:

Sunday, March 25, 2018

Case o' The Week: Gov't Adores our Opened Doors - Kootswatewa and Hearsay on Rebuttal

  Opened doors can be scary.
United States v. Kootswatewa, 2018 WL 1439610 (9th Cir. Mar. 23, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judge Wallace and visiting DJ Sands. Hard fought appeal by D. Az. AFPD Michael Burke.

Facts: Kootswatewa was charged with sexual abuse of a child. Id. at 2. The child, K.C., was a developmentally disabled 11 year old girl that lived on the same reservation as the defendant. Id. After the assault, K.C. made statements to a police officer. Id.
  At trial, the defense questioned K.C.’s reliability, describing her motives to fabricate the story and exploring coaching by K.C.’s mother. Id. at *4. In the government’s rebuttal case, the court allowed testimony from the officer about statements K.C. had made to him shortly after the abuse. Id. at *4.
  Kootswatewa was convicted and sentenced to forty years. Id. at *2.

Issue(s): “We turn . . . to Kootswatewa’s objection to the admission of the officer’s testimony concerning the statements K.C. made to him shortly after the abuse occurred. . . . The district court admitted K.C.’s statements under Rule 801(d)(1)(B)(i), which renders admissible a prior statement that is consistent with the declarant’s in-court testimony and is offered ‘to rebut an express or implied charge that the declarant recently fabricated [her testimony] or acted from a recent improper influence or motive in so testifying.’” Id. at *4, quoting Fed.R. Evid. 801(d)(1)(B)(i).

Held:The district court properly exercised its discretion in admitting K.C.’s statements to the officer.” Id. at *4. “K.C.’s prior statements to the officer were admissible to rebut defense counsel’s suggestion that K.C.’s in-court testimony had been tainted by a ‘recent improper influence or motive’ – namely, K.C.’s mother alleged coaching.Id. at *4.

Of Note: Kootswatewa is a disappointing, but important, decision on the admission of hearsay testimony under Federal Rule of Evidence 801(d)(1)(B)(i). Appellate counsel admirably slugged away at each requirement of this “rebuttal” hearsay evidence, and the Ninth addresses the rule in depth.
  First, to be admissible, this evidence has to have occurred before the alleged motive to fabricate arose. Id. at *4. Judge Watford finds that requirement met here, because the statements to the officer happened before K.C. spoke to her mother.
  Kootswatewa also argued that the defense had a different theory on K.C.’s motive to lie: that she had gone where she was told not to go by her mother, and fabricated the assault to cover for herself and avoid discipline. Id. at *4. That motive to lie pre-dated the statements to the officer, so why were the cop-statements admissible? Judge Watford concludes that prior statements for rebuttal don’t have to address all of the defense theories: it is enough that the statements properly went to one of them (here, the theory that K.C. was coached). Id. at *5.
  “Opening the door” is often a dangerous possibility for the defense – and here, the Ninth allowed a barn door to be opened with these statements to the officer. Study Kootswatewa when weighing the risks and dangers of attacking the credibility of government witnesses, and mulling the government’s rebuttal case.

How to Use: Maybe there was error, here: facts in K.C.’s statements to the cop, and her testimony at trial, were not consistent. Id. at *5. The Ninth looks at the evidence in this case, and concludes that “any error in admitting the statement was harmless.” Id.
  This passage of Kootswatewa is worth a close read – inconsistent facts in the pretrial statement and the trial testimony may help keep 801(d)(1)(B)(i) evidence out of your trial.
For Further Reading: In 2016, Professor Kilkpatrick forcefully warned that amendments to FRE 801 would improperly expand the use of prior statements as substantive evidence in rebuttal. See Kirkpatrick, Laird C., Prior Consistent Statements: The Dangers of Misinterpreting Recently Amended Fre 801(D)(1)(B)* (2016). 24 Trial Evidence 12 2016; GWU Law School Public Law Research Paper No. 2016-40; GWU Legal Studies Research Paper No. 2016-40. Available at SSRN:
  Read this short piece, and read Kootswatewa: the Prof was, sadly, spot on.

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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