Ode To Saint Patrick

As a child I wished I could find a way
To skip the joys of St. Patrick's Day:
Chauvinism rampant and coercing green,
To celebrate beer and Gaelic spleen.
That merry robed Pat, with uplifted truncheon,
He whacked scaly wildlife into extinction.
But history forced me to change my view,
To realize that I should celebrate too.
The Fifth Century was hard for a Romanized Celt,
Captured by bandits, into slavery dealt.
He labored, cold and hungry, in bondage pastoral,
Learning hard lessons how slavery's immoral.
Transformed to live a more spiritual way,
He heeded a voice: you must run away.
In his fugitive life, the dangers abounded,
Til by sea from Ireland at last he absconded.
In ravaged Gaul he developed his rough-hewn creed,
Then to Eire he returned to help people in need.
In a time when Druids played the executioner's song,
He taught capital sacrifice was morally wrong.
A lone voice against slavery, he sought abolition;
It would be centuries before others joined in his mission.
A non-violent warrior, injustice he fought,
To end the oppression that was Ireland's lot.
So to this man we should toast, esteem we should render,
To the patron saint of the public defender.

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

Image of St. Patrick from http://www.sapadapaso.org/content/Portals/0/home/img_sp.jpg

Phillips v. Ornoski, No. 04-99005 (3-16-12) (Reinhardt with B. Fletcher; partial dissent by Kleinfeld).

In this capital petition, the 9th excoriates the prosecutor for wilfully misleading the jury and withholding evidence as to a special circumstance that may have impacted the death verdict. Although the "deceptive ruse" did not affect the guilt verdict, and the denial of the petitioner's claims related to them was affirmed, the 9th did vacate the death sentence. The issues revolved around what the motive was for the killing, and the hidden information were benefits received by the cooperating witness. Kleinfeld dissents from the sentence relief, arguing that it was harmless given the overwhelming evidence and the testimony of a surviving witness.

U.S. v. Del Toro-Barboza, No. 10-50487 (3-14-12) (Gould with Noonan and Ikuta).

In an appeal from bulk cash smuggling in violation of 31 U.S.C. 5332 and exporting money under 31 U.S.C. 5324, the 9th affirms the conviction and sentence. The defendants were caught with $500,000 in a box in the bed of their pick-up truck being driven to Mexico. Interesting that border agents just happened to look in the pick-up's bed, and pick out the one box among many. Cash? In the truck? Who knew? The prosecutor argued that the defendants did, and presented evidence of past trips, a cluster of calls from Mexico, and other circumstantial evidence. Ah, but the charges required specific intent, and did the government present enough evidence on that? Enough, held the 9th, to find that there was sufficient evidence, even if the reviewing court might have some doubt about the strength. The 9th did find that the two charges were multiplicitous, but did not violate double jeopardy because Congress did intend to punish twice the same conduct with different elements under Blockburger. The closing arguments were heated, and the prosecutor stated that the defense counsel played games, was like a Wizard of Oz, and so forth. The 9th did not find misconduct. Some arguments were in response to defense counsel's closing, and some were permissable. Trials can be hard fought, observed the 9th, and there may be some verbal cage fighting. The 9th let this go. The 9th found that jury instructions were not erroneous, and finally, the sentence was not unreasonable.

U.S. v. Ressam, No. 09-30000 (3-12-12) (en banc).

Sitting en banc, the 9th considers the 22-year sentence imposed upon the so-called "Millennium Bomber" and holds that it has "a definite and firm conviction" that the district court committed "clear error" in its sentence, and thus the sentence was "substantively unreasonable." The 9th engaged in a detailed analysis of the twists and turns of this case, with plea offers, counter-offers, offers to cooperate, cooperation, withdrawal from cooperation, self-representation, and various assessments of the value of cooperation he did provide. The 9th faulted the district court for its comparisons with other terrorism cases, and for its scant attention to the guidelines. It did value the familiarity of the court with this case, now some 12+ years old, and so remanded back to the court for a resentencing. Concurring, Reinhardt, with Wardlaw, caution that this is a unique case, and that it is difficult to develop general principles concerning "substantive unreasonableness." The highly contextual nature of substantive review of sentences, and the circumstances of this case, make it atypical. The concurrence believes the sentence must be vacated, but is cautious as to what markers are laid down for the future. Dissenting, Schroeder, joined by Paez, Berzon and Murguia, would defer to the district court and affirm the sentence as given. The dissent argues that the majority commits Gall error, and vacates the sentence because it disagrees with it.

Kudos to Tom Hillier, FPD of the W.Dist of Wa (Seattle) for his continued spirited representation. Back for resentencing.

U.S. v. King, No. 11-10182 (3-13-12) (Per curiam with Graber, Berzon and Tallman, and concurrences by Graber and Tallman).

The 9th affirms a search of a home based upon the defendant's probation condition specifically allowing warrantless searches with or without probable cause. Here, the defendant was supposedly linked to a shooting by various unreliable informants and/or witnesses. Reasonable suspicion was lacking. However, Baker, 658 F.3d 1050 (9th Cir. 2011) permitted the search of his room (via a questioning, overheard conversation with others, a fight among kids over a jacket, a Google search of an album cover, and a stop at one address that led to another) which yielded a shotgun possessed by this prohibited possessor. Graber, concurring, believes that Baker should be reconsidered in light of Supreme Court developments. Searches without even reasonable suspicion via a probation condition troubles her. Tallman, concurring, would affirm because to him reasonable suspicion was established by the various links between the shooting, witnesses, and connections to the defendant.

Case o' The Week: Broaching the Breach - Whitney and Prosecutorial Breach of Plea Agreements

"The government's argument [on appeal] is disingenuous."

Expect good things to follow, when the analysis of an AUSA's breach of a plea agreement begins with that blunt assessment. United States v. Whitney, 2012 WL 718483, *4 (9th Cir. Mar. 7, 2012), decision available here.

Players: Decision by Judge Reinhardt, joined by Judges B. Fletcher and Tashima.

Facts: While incarcerated for another (similar) offense, Whitney filed false tax returns. Id. at *1. He was charged, then cooperated, and then ultimately pleaded guilty pursuant to a plea agreement. Id. 

  In the plea agreement the government pledged to recommend the low-end of the guideline range, and promised it wouldn’t use information from Whitney’s debrief. Id. The agreement permitted both parties to contest a role adjustment. Id. The PSR identified three inmates in the scheme, but failed to identify how Whitney "managed" others. Id. Nonetheless, Probation recommended the two-level upward adjustment, and a whopping upward departure to 87 months (double the guideline range). Id. at *2. 

   Whitney's defense counsel contested the role adjustment at sentencing. Id. The AUSA then recommended “the low end of the guidelines as we have obligated ourselves to do.” Id. She then argued for the +2 OL role adjustment, explaining that Whitney “supplied information to me during his debriefing session that put himself in a supervisory role, a two-level increase.” Id. 

 Defense counsel didn’t object to this argument. 

The district court found the role adjustment applied, and departed upwards to 87 months. Id.

Issue(s): “[Whitney] contends that the U.S. Attorney breached the parties’ plea agreement by disclosing admissions made by Whitney while cooperating with the government, and by urging imposition of a sentence above the low end of the Sentencing Guidelines.” Id. at *1.

Held: “Although the prosecutor uttered the requisite words by recommending a sentence at the low-end of the guidelines, her additional statements constituted an argument for a higher sentence, breached the government’s obligation to recommend a low-end Guideline sentence, and likely had an impact on the far-above-guideline sentence imposed  . . .  The prosecutor’s reference to inculpatory statements made by Whitney during the course of his cooperation bore on the applicability of the two-level sentencing enhancement as well and similarly constituted an obvious breach.” Id. at *4. “We hold that the breach of the plea agreement by the U.S. Attorney resulted in plain error that affected Whitney’s substantial rights.” Id. at *1.

Of Note: This would be a great breach decision in any context, but is a particularly potent case because Judge Reinhardt grants relief despite undertaking plain error review. Id. at *3. Olano plain error is that bane of the defense on appeal: a  four-part test that usually results in a government win. Id. at *3. Judge Reinhardt not only finds “plain” error in the breach -- he also explains that the breach affected Whitney’s substantial rights, id. at *5, and affected the fairness and integrity of the judiciary, id. at *6.  

Whitney make breaches even more dangerous for the government, because even if trial counsel fails to object the defendant can prevail -- on plain error – on appeal. The remedy? Specific performance and a different district judge on remand! Id. at *9.

How to Use: Whitney also reverses the sentence because insufficient facts supported the leadership role enhancement. Id. at *1. It is an equally valuable decision on that issue; Judge Reinhardt carefully explains the necessary "level of control" to support this adjustment – facts not found in Whitney. Id. at *7-*8. 

Footnote six is of special interest – the Court there eviscerates the government’s argument that 1993 amendments to the guidelines altered the showing necessary for a leadership role. Id. at 7 & n.6. Read and rely on Whitney when fighting leadership adjustments.

                                               

 For Further Reading: President Carter appointed the three judges on this panel: Judges Reinhardt, B. Fletcher, and Tashima. It is, sadly, increasingly rare to see a three-judge panel of Carter appointees – even this Whitney panel features two senior Ninth Circuit judges (Judges B. Fletcher and Tashima).

For a very interesting discussion of the unusually large Carter “cohort” of Ninth judges and their tremendous impact on this Circuit, see Susan B. Haire, Judicial Selection and Decisionmaking in the Ninth Circuit, 48 AZLR 267 (2006). 

 Ed. Note: An astute reader clarified that Judge Tashima was indeed appointed by President Carter -- but to the district court, not to the Ninth Circuit. Judge Tashima was appointed to the Ninth Circuit by President Clinton.

Trailer still of "Breach" from http://www.annyas.com/screenshots/images/2007/breach-trailer-title-still.jpg

Portrait of President Jimmy Carter from http://en.wikipedia.org/wiki/File:James_E._Carter_-_portrait.gif

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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U.S. v. Whitney, No. 10-10118 (3-7-12) (Reinhardt with B. Fletcher and Tashima).

A deal was struck between the government and the defendant. At sentencing, the prosecutor breached explicitly and implicitly some provisions. Specifically, the prosecutor disclosed information in a debriefing that was agreed to remain confidential; and an argument about criminal history supported an upward departure. Here, in fraud case, the guideline range was 41 to 51 months. The court departed upward to 87 months, after finding an organizer adjustment, on the basis of under representation of criminal history. The 9th held that plea agreements are contracts, and the breaking of an agreed term is a violation. The 9th found that indeed promises made were broken. Moreover, the court even erred in a guideline determination, finding no evidence to support an adjustment for the defendant being an organizer. The case is remanded for resentencing before a new judge.

U.S. v. Loughner, No. 11-10339 (3-5-12) (Bybee, concurrence by Wallace, dissent by Berzon).

In a number of appeals arising from the involuntary pretrial medication of the defendant (the Tucson shootings), the 9th affirms the district court's decisions, holding that the doctors at FCI-Springfield know best. The opinion overviews the legal standards for involuntary medication, precedent (Harper, Riggins, and Sell), the procedures at issue, and findings. Parsing all the claims, the opinion finds that due process was afforded as to both substance and procedure in determining that involuntary medication was medically appropriate, and no other alternatives were as effective. The opinion did pause as to whether the defendant, under the procedure in place, had someone actually representing his interests, but nonetheless found that the staff representative was sufficient to satisfy due process. The bottom line is that the district court's finding that there was a substantial probability that the defendant could be restored to competency in the foreseeable future was supported by evidence and not clear error. Wallace, concurring, took issue with even raising this point, and concurred in the rest. Berzon, dissenting, bemoaned the abdication of judicial determination as to the appropriateness of the involuntary medication, the melding of various standards for pretrial and post-trial, and the following of due process.

U.S. v. Lequire, No. 11-10066 (3-5-12) (Silverman with Tashima and Adelman, D.J.).

Remember when we learned the elements of larceny, robbery, and embezzlement in Crim Law? Remember when the professor shrugged and said that was common law, and in modern penal codes, we are all guilty of something so it doesn't matter. Well, it does, at least here, when a treasurer of an insurance agency is caught using the premiums collected by the agency not to pay the insurance company's fees, but for other stuff, like personal expenses for the owner, and former Congressman (Renzi). It isn't embezzlement, with which he was prosecuted, because the funds were not "in trust." There was a fiduciary duty, but the use, and misuse, of the premiums were not embezzlement because they were not entrusted to the defendant. Under long-standing Arizona law, the contract between the agency and the insurance company, allowing commingling, only required monthly payments, which, if late, accrued interest. This created a creditor-debtor relationship, not a trust. An element of embezzlement was missing. A judgment of acquittal was required.