Case o' The Week: Ninth Hears Loud Hawk's Cry - Evidence Lost by Gov't and Adverse Inference Instructions

Kennedy is a critical swing vote, and his concurring opinions have a way of becoming the controlling law of the land.

  (Even back in ’79). United States v. Sivilla, 2013 WL 1876649 (9th Cir. May 7, 2013), decision available here.

Players: Decision by Judge Noonan, joined by Judges Pregerson and Paez.

Facts: Sivilla owned a business selling perfume in Tijuana, and came to the U.S. a few times a week to buy supplies. Id. at *1. Sivilla loaned his Jeep Cherokee to the boyfriend of his sister-in-law. Id. Days later, Sivilla was stopped when he crossed the border in the Jeep. $160,000 worth of drugs were found hidden within a hand-cut area of the engine manifold. Id. The case agent took poor-quality photos of the engine. Id. Sivilla was arrested; a month later, the boyfriend was shot dead. Id. Soon after the arrest defense counsel asked that evidence from the Jeep be preserved and filed two motions to preserve and inspect evidence. Id. The court issued oral and written orders to preserve the Jeep. Id. Despite these requests and orders, the Jeep was sold at auction and stripped for parts. Id. at *1. “The prosecutor promised to protect the evidence but failed to take any affirmative action to that end. The government attorney prosecuting the case participated in the events leading to the failure to preserve. In total, the quality of the government's conduct was poor.” Id. at *5. The defense complained if its expert could have examined the modified manifold, he would have been able to evaluate whether it was readily accessible without lifts – a key fact for the “drug mule” theory. Id. at *2. The court found the government hadn’t acted in bad faith, denied the motion to dismiss, and refused to give a defense jury instruction on the destruction of the evidence. Id.

Issue(s): On appeal, Sivilla argued that “the trial judge erred in requiring a showing of bad faith in order to give a remedial jury instruction.” Id. at *3.

Held: “This case allows us to clarify what a criminal defendant must show in order to receive relief when the government destroys evidence before trial. We hold that while Supreme Court precedent demands that a showing of bad faith is required for dismissal, it is not required for a remedial jury instruction. We therefore . . .

(Now Justice, then Judge) Anthony Kennedy

reverse the denial of a remedial jury instruction. We remand for a new trial with a remedial jury instruction.” Id. at *1. 

   “Bad faith is the wrong legal standard for a remedial jury instruction. Sivilla correctly identifies the appropriate legal standard in . . . Loud Hawk. Loud Hawk is an en banc decision with several opinions. The rule governing sanctions for destruction of evidence is found in Judge Anthony Kennedy’s 6–5 concurrence. Judge Trask's opinion in Loud Hawk, which announced the judgment of the court, suggests a bad faith requirement for sanctions when the government destroys or loses evidence. . . . However, that section of Judge Trask's opinion was not joined by any other members of the en banc panel. We clarify today that Judge Kennedy's concurring opinion, joined by a majority of the en banc panel, clearly controls this issue.” Id. at *4.   

Of Note: In the welcome Sivilla decision, Judge Noonan carefully parses the’79 Loud Hawk opinion and helpfully clarifies the rule for an adverse inference jury instruction when evidence is lost by government negligence. 

  Loud Hawk is a historically important case involving the conviction of fugitives from “that sorry affair” of the siege of Wounded Knee. Loud Hawk, 628 F.2d at 1141. Loud Hawk involved a remarkable en banc panel, including two jurists who would become respected Chief Circuit Judges, and a future Supreme Court justice – the opinion is an interesting read in its own right.

How to Use: When does the defense get this adverse inference instruction? Judge Noonan lays out the relevant factors from Loud Hawk, applying the Sivilla facts to the test. Id. at *4. Start with that analysis when hunting for an adverse inference instruction for evidence lost by the government.

                                               

For Further Reading: Law student Kenneth Stern, became involved in the Loud Hawk defense in 1975. Mr. Stern worked on the case until he appeared as lead counsel before the Supreme Court in 1985. Stern tells the story of the case in Loud Hawk: The United States versus the American Indian Movement, summary available here.

Image of hawk from http://www.birdwatchersgeneralstore.com/RedTailsScreech.htm. Image of Justice Anthony Kennedy from  http://www.nndb.com/people/910/000023841/

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

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McCullough v. Graber, No. 11-16920 (9th Cir. May 10, 2013) (Burgess, D.J., with Farris and N.R. Smith, JJ.)

The Ninth Circuit dismissed as moot an appeal from an order denying a federal prisoner's § 2241 habeas petition challenging BOP's rejection of his application to the Second Chance Act's pilot program for elderly offenders, which no longer exists.

The petitioner contended that, although BOP discontinued the SCA's pilot program around the time the district court denied his habeas petition, his appeal was not moot because the BOP retained the discretion to place him in a halfway house as the end of his sentence approached (in March 2013). The court held that the appeal was moot because the petitioner did not request this kind of relief in his § 2241 petition and did not amend it to request that relief once the pilot program was discontinued.

In an alternative merits ruling, the court agreed with the Tenth Circuit's decision in Izzo v. Wiley, 620 F.3d 1257 (10th Cir. 2010), which held that BOP is not required to consider early release credits in connection with an application for the pilot program. (If the BOP had done so, the petitioner would have been eligible for early release about three years earlier than March 2013.)

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/10/11-16920.pdf

US v. Mancuso, No. 12-30174 (5-1-13)(Bea with Clifton and Mahan).

As the opinion describes it: "Mancuso was a dentist who distributed a lot more than free toothbrushes to his friends and acquaintances in Billings, Montana." Indeed, his charges included cocaine, which lead to various federal charges of possession with intent to distribute, distribution, and maintaining a drug house. The jury convicted on most counts, but found the amount to be distributed as less than 500 grams. On appeal, the 9th affirmed the conviction for possession with distribution (count 1), but vacated the distribution count as being duplicitous; that is, joining two offenses into a single count. The 9th also vacated the count for running a drug house, because the court committed plain error in instructing the jury that there had to be a "significant purpose" in using the premises rather than the correct "primary or principal use" for a house. The instruction applies to a professional office (dentist) as well as a residence. On various other issues, such as statutes of limitations and sentencing, the 9th rejected the arguments. As for the forfeiture count, the court's failure to inquire whether either party wanted the jury to find a nexus between the property and the offense was harmless.

United States v. Sandoval-Orellana, No. 12-50095 (9th Cir. May 9, 2013) (Beistline, D.J., with Thomas and Hurwitz, JJ.) 

The Ninth Circuit affirmed a guilty-plea conviction and sentence for illegal reentry following deportation. The court held that the defendant's prior conviction under Cal. Penal Code § 289(a)(1) for sexual penetration by foreign object was an aggravated felony, such that the removal order against the defendant was valid. The court also held, on plain-error review, that the defendant's sentence of 57 months, at the lower end of the Guidelines range, was procedurally reasonable.

The defendant was apprehended when he presented an apparently valid green card at the San Ysidro, California, port of entry, and it was discovered that he had previously been removed from the United States. That removal order was entered in the face of the defendant's conviction for sexual penetration by foreign object under Cal. Penal Code § 289(a)(1). As permitted by 8 U.S.C. § 1326(d), the defendant moved to dismiss the indictment on the ground that the deportation order was invalid because § 289(a)(1) doesn't define an aggravated felony. The district court disagreed, and the Ninth Circuit affirmed.

The Ninth Circuit held that under the Taylor categorical approach, CPC § 289(a)(1) defines an aggravated felony. The court distinguished Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. 2006), which involved California's statutory-rape provision. The conduct covered by the statutory-rape provision encompasses some consensual conduct, and therefore doesn't present a substantial risk that force will be used in the commission of the offense. The same, categorically, was not true for sexual penetration by foreign object, despite the fact that some fanciful formulations of fact patterns that fit under CPC § 289(a)(1) might not involve forcible conduct.

On plain-error review, the court also rejected a challenge to the district judge's explanation of the 57-month sentence.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/09/12-50095.pdf

[Ed. note -- I'm filling in for Jon for a couple of days while he's occupied with other business. As a reminder, I try to summarize the court's holding in the first paragraph, and give people enough information to decide whether to read on. And at the bottom is a link to the court's opinion.]

Keith Hilzendeger, Research & Writing Specialist, Federal Public Defender's Office - Dist. of AZ

United States v. Sivilla, No. 11-50484 (9th Cir. May 7, 2013) (Noonan, J.)

The Ninth Circuit vacated a criminal conviction and remanded for a new trial, holding that the district court should have given a remedial jury instruction to account for the government's negligent destruction of potentially exculpatory evidence. It also held that because there was no showing of bad faith in the destruction of the evidence, the district court properly denied the defendant's motion to dismiss the indictment.

This is a blind mule case. The defendant, a perfume retailer in Tijuana, Baja California, loaned his Jeep Cherokee SUV to his son-in-law. Two days later, while the defendant was driving it into San Diego to pick up more inventory, he was referred to secondary inspection, where CBP agents (with the help of a mechanic) discovered packages of cocaine and heroin hidden inside the engine manifold. (The son-in-law was killed shortly after the defendant was arrested.) Concealing the drugs in the engine manifold was an extremely complicated maneuver, and demonstrating that to the jury would bolster the defendant's blind-mule defense. Accordingly, counsel asked the government to preserve the SUV until he could have a chance to inspect it -- first by letter shortly after the defendant was arrested, and then later by formal court motion.

The district court ordered the government to preserve the SUV, but the government failed to do so. A snafu in communication between the prosecutor and CBP led to CBP selling the SUV at auction, after which it was stripped and sold for parts. By the time the defendant got around to asking to inspect the SUV, it had long been destroyed. The defendant therefore moved to dismiss the indictment, or in the alternative for a remedial jury instruction. The district court heard oral argument and denied both requests, finding no bad faith on the part of the prosecution. The complexity involved in hiding the drugs in the engine manifold was central to both parties' presentation. The defendant was represented by Federal Defenders of San Diego, Inc., which "has an investigator on staff who specializes in assessing secret compartments in vehicles." But neither the FDSDI investigator nor any other expert could assess the compartment in the SUV in this case, because the government allowed it to be destroyed well before trial. Having no way to rebut the government's evidence about the manifold (including some "indecipherable" photographs of the manifold taken by the case agent), the defendant was convicted and sentenced to 10 years in prison.

The Ninth Circuit accepted the district court's conclusion about a lack of bad faith on the prosecution's part in relation to the destruction of the SUV. That allowed the court to affirm the denial of the motion to dismiss the indictment under Arizona v. Youngblood, 488 U.S. 51 (1988). But the Ninth Circuit did characterize the government's conduct as negligent, which allowed it to vacate the conviction because the district court refused the remedial instruction. "The prosecutor promised to protect the evidence but failed to take any affirmative action to that end. The government attorney prosecuting the case participated in the events leading to the failure to preserve. In total, the government's conduct was poor." Clarifying the holding in United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. 1979) (en banc), the court held that the holding in Loud Hawk was that a balance of the government's relative culpability in the destruction of evidence against the prejudice to the defendant stemming from the destruction determines whether a remedial instruction is required. Because the district court applied the wrong legal standard (bad faith), and there was no adequate substitute for the SUV that would have allowed the defendant to make his defense, the district court abused its discretion when it refused the remedial instruction, and the defendant was entitled to a new trial.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/07/11-50484.pdf

Case o' The Week: Novocaine OK, Cocaine Not So Much - Mancuso, Continuing Offenses, and Drug Distribution

“Mancuso was a dentist who distributed a lot more than free

toothbrushes to his friends and acquaintances in Billings, Montana.”

Great first line in a good new case on federal drug distribution. United States v. Mancuso, 2010 WL 1811276 (9th Cir. May 1, 2013), decision available here.

Players: Decision by Judge Bea, joined by Judge Clifton and DJ Mahan.

Facts: Mancuso was a dentist in Billings, Montana. Id. at *1. He was charged in one count (Count II) with distributing over 500 grams of cocaine, beginning in 2002 through 2009. Id. He was also charged with using his home and office as places maintained to distribute cocaine. Id. “Friends” and suppliers testified at trial about Mancuso buying and sharing cocaine over the seven years, in his home, office, and at bars and ski resorts Id. at *2. “I’ll buy and you fly,” was Mancuso’s motto: he would bankroll the cocaine and share it with those who purchased it for him. Id. at *2. Mancuso was convicted after trial, after having made an unsuccessful duplicity challenge to the distribution charges in Count II.

Issue(s): “Mancuso’s duplicity claim with respect to Count II, which charged him with a single continuing offense of distributing cocaine between . . .  2002 and . . .  2009 is much stronger. Unlike possession of controlled substances with intent to distribute, it is unclear whether actual distribution may be charged as a continuing offense. This circuit has never addressed directly whether distribution is a continuing offense, although other circuits have held that it is not.” Id. at *7.

Held: “We agree with the reasoning of the Second Circuit: separate acts of distribution of controlled substances are distinct offenses under 21 U.S.C. §b841(a), as opposed to a continuing crime, and must therefore be charged in separate counts. The government argues that charging all of the acts of distribution in a single count was permissible because these acts ‘could be characterized as part of a single continuing scheme.’ We disagree. Mancuso’s various acts of distribution to random friends and acquaintances, unassociated with each other in any venture or pursuit, over the course of several years and in various locations are not sufficiently related to justify charging him with one count alleging a continuing distribution offense, as opposed with distinct counts for each act of distribution. For these reasons, we vacate Mancuso’s conviction on Count II on the grounds that it was duplicitous.” Id. at *8.

Of Note: There’s a surprising number of issues in this sole-defendant case (and not all are as nicely resolved as this “continuing offense” claim). One good result is Judge Bea’s reversal for plain error when the jury wasn’t instructed that they must find a primary purpose of Mancuso’s residence and dentist office was to distribute drugs. Id. at *8-*9. It is an honest and robust reading of the requirements for a “maintaining a place to distribute cocaine” charge (21 U.S.C. § 856(a)(1)). Worth a close read in § 856(a) cases.  

How to Use: Judge Bea’s new rule is welcome. Most obviously, it prevents the government from insulating old distribution charges from a statute of limitation challenge by lumping the offenses together as a single-count “continuing offense.” In some cases, it may also permit the defense to “throw” a hopeless distribution count at trial, focus the fight on another distribution charge, hope for a compromise verdict, and try to get under a mandatory-minimum triggering amount. Of course, the new rule doesn’t apply to conspiracy charges, or RICO, or “possession with intent to distribute,” id. at *7, but any win in the drug context is a victory worth trumpeting.   

                                               

Steven Nolder, FPD SD Ohio

For Further Reading: Former SD Ohio Fed. Public Defender Steve Nolder recently fired himself to save staff from furloughs or lay-offs. Steve was recently featured on the Daily Show, as an example of the impact of sequestration. See video here.  Last week, another Federal Defender joined the ranks of the departed. Respected Missouri Defender Ray Conrad retired years early, to lessen the financial impact of sequestration on his staff. See article here. 

   Meanwhile, no federal prosecutor in the country will be furloughed. See article here. And Justice is spending $165 million to purchase a new federal prison (so more federal inmates can be incarcerated). Id. 

Image of cocaine toothache drops from http://www.npbdentist.com/blog/post/and-you-think-you-hate-going-to-the-dentist-now.html

Image of Steve Nolder from http://www.youtube.com/watch?v=dMQQgLtnWOQ

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at www.ndcalfpd.org

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DOJ’s Inspector General Finds The BOP’s Compassionate Release Program “Poorly Managed” And “Implemented Inconsistently”

Just over a year ago, we posted a video of an interview with our client and former federal prisoner, Phillip Smith, who had been denied access to the sentence reduction program known as compassionate release under 18 U.S.C. § 3582(c). Phillip had leukemia that was not responding to treatment, but the Bureau of Prisons (BOP) refused to allow the judge to determine whether these “extraordinary and compelling reasons" (in the language of the statute) warranted a sentence reduction. After litigation regarding the unlawfulness of the BOP’s administration of the statute, the BOP filed a motion that resulted in a sentence reduction to time served. Phillip's interview and links to the litigation are available here. Shortly after the interview, Phillip died at home.

Last November, Human Rights Watch and Families Against Mandatory Minimums issued a joint report called The Answer Is No: Too Little Compassion In US Federal Prisons. The report documented the BOP’s failure to provide access to courts as broad as the statutory authorization and the costs – human and fiscal – from the failure to fully implement the ameliorative statute.

Now the Department of Justice’s Office of the Inspector General has issued a report entitled The Federal Bureau of Prisons’ Compassionate Release Program. The OIG report found that the existing program “has been poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided.” On the other hand, the OIG stated that an effectively managed compassionate release program would result in significant cost savings to the BOP and help to address the problems resulting from over-capacity populations in federal prisons.

The OIG makes a number of recommendations. Most importantly, the OIG believes that standards should be articulated including eligibility based on both medical and non-medical “extraordinary and compelling” reasons, and, where life expectancy is at issue, eligibility for inmates with a life expectancy of up to 18 months. Although the BOP apparently agrees that an expanded rule would be appropriate, the agency did not share its new written memorandum and indicated that implementation of new rules could take years. If the BOP fails to incorporate the Sentencing Commission’s rule (U.S.S.G. § 1B1.13 and commentary), the BOP’s more restrictive rule will continue to be subject to legal challenge because Congress explicitly delegated to the Commission – not the BOP – the job of defining “extraordinary and compelling reasons” in 18 U.S.C. § 994(t).

Two other recommendations, if put into effect, could make a big difference. The OIG recommended that expedited time-frames should be adopted for processing claims. This change would be critical for increasing the time out of custody for beneficiaries of the program. It would also put a dent in the horrible statistic that, of the mere 208 prisoner requests considered by the Central Office over a six year period, 28 of the inmates died before a decision was made. The OIG also recommended that the BOP effectively communicate the existence of the program to the inmate population. Currently, the vast majority of institutions do not include information about the program in their inmate handbooks, and those that do contain limited and inconsistent information. The BOP agreed that formal procedures to inform prisoners about the compassionate release program should be adopted.

There’s a big lurking litigation issue that is documented but not addressed in the OIG report. In Table 4, the OIG report states that of the 38 requests for compassionate release that were denied in the six years between 2006 and 2011, 22 were denied based on the “seriousness of the offense or criminal history.” That’s 58.7% of the denials. But the BOP is usurping judicial authority under the statute when it refuses to file a motion on that ground. Under § 3582(c), the BOP files a motion with the sentencing court based on “extraordinary and compelling reasons.” The sentencing court then decides whether to grant the motion “after considering the factors set forth in section 3553(a) to the extent that they are applicable.” The seriousness of the offense or criminal history are classic considerations under 18 U.S.C. § 3553(a)(1): “the nature and circumstances of the offense and the history and characteristics of the defendant.” When the BOP arrogates to itself the role of deciding § 3553(a) factors, the agency violates both the statute and the constitutional separation of powers. Once there is a determination of “extraordinary and compelling reasons,” the BOP's only function under § 3582(c) is to file a motion with the sentencing court. The determination of that motion, considering § 3553(a) factors, is a judicial function, not an executive branch decision. As the Supreme Court in Setser stated about the BOP’s claim of authority to make concurrent and consecutive decisions:

• "[T]he Bureau is not charged with applying [the sentencing factors of] § 3553(a) . . . . It is much more natural for a judge to apply the § 3553(a) factors in making all concurrent-vs.-consecutive decisions, than it is for some such decisions to be made by a judge . . . and others by the Bureau of Prisons . . . ."

• "[S]entencing [should] not be left to employees of the same Department of Justice that conducts the prosecution."

When the BOP refused to file a compassionate release motion for Phillip Smith, the BOP claimed his criminal history warranted denial. The sentencing judge, properly entrusted with making the § 3553(a) determination, readily signed the motion reducing Phillip’s sentence to time served. We can hope the BOP will respond quickly and effectively to the OIG’s recommendations. In the meantime, we need to remain vigilant – in spotting issues, advocating with the BOP, and litigating where necessary – for our clients who, while serving their sentences, suffer medical and non-medical “extraordinary and compelling reasons” that warrant a reduction of their terms of imprisonment.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

U.S. v. Ramirez, No. 11-50346 (04-29-13) (Kozinski with McKeown and M. Smith)

The judge's sua sponte instruction to the jury that they should not speculate as to the government did not call a witness forbid the jury from doing something it should, indeed, was required to do. The defendant participated in a number of buys from undercover cops. One co-defendant plead and was willing to testify. However, the government elected not to call him, presumably because he was jumped in detention and suffered permanent brain injury. The defendant asked for a "missing witness" instruction. The court declined. This was not an abuse of discretion because the instruction should be given when the witness is within the sole control of the government and the witness's absence should naturally be held against he government. Here, the absence could not be held against the prosecution; there may be other reasons he was not called. The judge's sua sponte instruction to the jury was error. The defendant could argue why the witness was not called. The jury knew he was arrested and had plead. The jury should not have been forced not to infer what the defense argued. The error however was harmless. The evidence was overwhelming. The 9th did vacate the conspiracy conviction. There was no evidence that the drugs were going to be sold to others as part of an agreement. The mandatory 20 year sentence is affirmed because the 841 notice did not have to be presented to the jury as an element. Buckland does not control.

Congratulations to Deputy Federal Defender Devin Burnstein, Federal Defenders of San Diego, for putting up a fight and winning issues.

Jamerson v. Runnels, No. 12-56064 (04-24-13) (O'Scannlain with Nelson and Singleton)

The opinion's first paragraph spells out the issue, and the outcome:  "We must decide whether the California courts' determination that a prosecutor had genuine, race-neutral reasons for striking four black jurors during voir dire was an unreasonable application of federal constitutional law." The 9th held that the state courts' findings were reasonable under AEDPA. The 9th looks past the prosecutor using her 8 first peremptory challenges against 2 Hispanic and 6 black jurors, and then her next two against black jurors, and then her final 5 included 2 against blacks (The first two series of peremptory had Batson objections). The 9th reversed the district court's relief, parsing the reasons and finding them, under a comparative analysis, race neutral. Procedurally, the 9th considered Pinholster and its affect on California Batson/Wheeler challenges, because a comparative analysis can only be considered in post-conviction. The 9th held that the federal court must first do the comparative analysis with other jurors, and then consider that and other evidence in deciding if purposeful discrimination took place, using the doubly deferential review.