Sunday, April 23, 2017

Case o' The Week: Sixth Amendment Decision Sticks in Defense Craw-ford: Fryberg and the Right to Confrontation

 Feeling non-Confrontational?
 Admirable in personal relationships.
 Less so, in criminal trials.
United States v. Fryberg, 2017 WL 1416516 (9th Cir. April 21, 2017), decision available here.

Players: Decision by Judge Graber, joined by Judges Ikuta and Hurwitz.

Facts: Ms. Gobin sought a domestic violence restraining order against Fryberg. Id. at *1. A Tribal Police Officer (and brother-in-law of Gobin) filed a completed service of return of notice of a hearing on the restraining order. Id. Fryberg didn’t show at the hearing, and a restraining order was entered against him. Id.
  Fryberg got guns while subject to that restraining order. He was charged with 18 USC § 922(g)(8), possessing firearms while under a D.V. protection order. Id. at *2.
  An essential sub-element of this federal charge was that Fryberg had actually been served with notice of the hearing that produced the protective order. Id. Before the case went to trial, the Tribal Police officer that had allegedly served the notice of the hearing, died. Id.
  Over defense objection, the district court admitted the (deceased) officer’s certificate of service: Fryberg was convicted. Id.  

Issue(s): “Defendant argues that the district court erroneously admitted the key piece of evidence that the Government introduced to show that Defendant received actual notice of the hearing on the protection order—the return of service of the hearing notice . . . Defendant argues that (1) the district court erred in admitting the return of service as a ‘public record’ under Federal Rule of Evidence 803(8) and (2) the admission of the return of service violated the Confrontation Clause of the Sixth Amendment.” Id. at *2 (footnotes omitted).

Held:We conclude that the admission of the return of service did not violate either the rule against hearsay or the Confrontation Clause of the Sixth Amendment, and we affirm Defendant’s conviction.” Id. at *1.

Of Note: Crawford “‘rescued’ the right of confrontation ‘from the grave.’” Id. at *5 (quoting Clark, 135 S. Ct. at 2184 (Scalia, J., concurring in judgment)). 
  Fryberg (we would argue) re-entombs it.
   As it confronts Confrontation, the Ninth admits that Fryberg “lies somewhere between” two post-Crawford Ninth decisions. Id. at *6. This “return of service” document, the Court concedes, “had more of a criminal prosecutorial function than the immigration document at issue in Orozca-Acosta.” Id. Ultimately, however, the Ninth deems this “notice” document as something that’s primary purpose was not for use at a future criminal trial – and therefore not subject to Crawford. Id. at *6.
   Way back in ’05, it was clear that the core Crawford question would be: “what is testimonial evidence?” See blog entry here. Fryberg is one disappointing answer.

How to Use: Judge Graber delivers a number of evidentiary sub-holdings that ultimately lead to the decision’s outcome. The Court concludes that the officer was “under a legal duty to report when he completed the return of service,” satisfying FRE 803(8)(A)(ii). Id. at *3.
  Even though the Tribal Officer was a cop, and even though Fryberg faced a criminal case, the Court holds that the "notice of service" was not “a matter observed by law-enforcement personnel” (an express FRE limitation on the “public record” hearsay exception in a criminal case.) Judge Graber deems the notice of service a “largely ministerial act” to avoid this FRE limitation. Id. at *4.
  Finally, the Court rejects Fryberg’s arguments that a “lack of trustworthiness” undermined the admission of this hearsay evidence – the defense contended that the alleged place of service did not, in fact, exist, and observed that the deceased officer was also the D.V.-complainant’s brother-in-law. Id. at *5.
  Fryberg is, unfortunately, a must-read when the witness stand is empty, and the government’s case relies on paper instead of testimony. The "testimonial" legal landscape is not yet fully defined, but this case is another Ninth landmark.
For Further Reading: Three Ninth jurisdictions – San Francisco, Los Angeles, and an island in the Pacific – were called out by A.G. Sessions during his first Sunday morning interview. See “This Week” interview of 4/23/17 here.       Mulling tea leaves? Watch this interview.

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


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Monday, April 17, 2017

US v. Davis, No. 15-10402 (4-14-17)(Tashima w/Hurwitz & Adelman).  The 9th reverses a conviction for "attempted sex trafficking" due to a variance.   The defendant argued that the court and prosecution constructively amended the attempted sex trafficking count from "knowing or in reckless disregard" of the age to "reasonable opportunity to observe." The prosecution argued this theory to the jury about the minor status (the defendant had taken in the victim and then exploited and attempted to traffic her). In so arguing, and the court in so instructing, the indictment was changed from two options of proof --either knowledge or recklessness-- to a third option, reasonable opportunity to observe.   This constructive alteration was such that it was impossible to know if the grand jury would have indicted for the crime proved. The conviction was thus reversed.  Although the defendant was serving 300 months on the other count (the sexual exploitation count was affirmed), resentencing had to occur because of the unbundling.

Congrats to AFPD Peggy Sasso, Cal E (Fresno).
The decision is here:

Sunday, April 16, 2017

Case o' The Week: The Ninth Gets Constructive - Davis and Constructive Amendments

  Constructive amendment math: 1+1+9 = 3.
One (grand jury) indicts on a charge, and a second (petit) jury convicts on a different charge  -- add the Ninth, and a (third) petit jury will hear the charge again on remand and retrial.
 United States v. Ricky Davis, 2017 U.S. App. LEXIS 6445, (9th Cir. Feb. 16, 2017), decision available here.

The Honorable Judge Wallace Tashima
Players: Decision by Judge Tashima, joined by Judge Hurwitz and District Judge Adelman. Welcome win for AFPD Peggy Sasso, E.D. Cal. (Fresno).

Facts: Ricky Davis was convicted after trial of, among other things, attempted sex trafficking in violation of 18 USC § 1591(a). Id. at *2. Davis was charged with pimping a minor girl, “knowing or in reckless disregard of the fact that the person had not attained the age of 18 years.” Id. at *5.
  At trial, however, the jury was instructed that it could find Davis guilty if he “had a reasonable opportunity to observe [the minor], and that [the minor] would be caused to engage in a commercial sex act.” Id. at *6. (A valid approach to prove the offense under the statute, but not an allegation charged in the indictment).

Issue(s): “Davis challenges his conviction under § 1591(a) on the ground that the district court's jury instruction constructively amended the indictment.” Id. at *3.

Held:We . . . conclude that a constructive amendment occurred because the crime charged [in the indictment] was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually proved . . . . Our holding today is consistent with United States v. Lockhart, 844 F.3d 501 (5th Cir. 2016), the facts of which are indistinguishable from this case. There, the Fifth Circuit observed: By including the language found in § 1591(c), the district court materially modified an essential element of the indictment by transforming the offense with which the indictment charged [the defendant] from one requiring specific mens rea into a strict liability offense. Id. at 515-16 (footnote and citation omitted). We agree.Id. at *7-*8 (internal quotations and citation omitted).

Of Note: Constructive amendment, or variance? A critical question: constructive amendments usually mean reversals, while mere variances are more likely to be upheld on a “prejudice substantial rights” analysis.
  Judge Tashima explains “An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.” Id. at *8-*9 (internal quotations and citation omitted).
  Because the jury instruction here “had the effect of alternating the terms of the indictment,” this was a constructive amendment – earning a reversal.
  Davis is clear and accessible discussion on the (sometimes nuanced) issues of constructive amendments and variances – a good resource, for these challenges.

How to Use: Davis received a sentence of 300 months, concurrent, on another count – so why reverse and remand on this count? Because the sentencing package became “unbundled” when this count was reversed --  requiring remand and resentencing or retrial. Id. at *9-*10.
  “Unbundling” is valuable appellate principal, much on the mind of the Johnson litigators of late. Turn to Davis for a useful and recent example of this remand-hook.
For Further Reading: In February, A.G. Sessions created a “Task Force on Crime Reduction and Public Safety.” On April 5, the Attorney General distributed an “update” on that task force, to the United States Attorneys. See Memo here. Recommendations from the Task Force hit by July 27.
  In related news, A.G. Sessions recently spoke at Nogales and laid out immigration prosecution priorities. See speech here. 
  Busy times ahead.

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


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Wednesday, April 12, 2017

US v. Crooked Arm, No. 15-30277 (4-11-17)( O'Scannlain w/Clifton; dissent by Nguyen). The 9th finds an Apprendi challenge foreclosed by law of the case.  The defendants had pled guilty to a misdemeanor (sale of protected bird parts -- feathers) but were mistakenly sentenced for a felony. The 9th in that appeal had found error in some counts being felonies when they should have been misdemeanors.  It seemingly affirmed a conviction for a conspiracy, and remanded for resentencing.  On appeal from the resentencing, the defendants argue that the conspiracy should be a misdemeanor, because the object of it was a misdemeanor.  At the original plea colloquy, the defendants admitted to only selling feathers, a misdemeanor, and therefore it could not be a conspiracy felony conviction.   The 9th rejected this argument under "law of the case." The 9th reasoned that it had already decided that the conspiracy was a felony in affirming the conviction in the first appeal.  Some of the actions of the defendants were felonious.  Dissenting, Nguyen argues that the first panel had not decided the Apprendi issue.  The object of the conspiracy was a misdemeanor, and not the overt act, which could be considered a felony.

The decision is here: