Tuesday, March 11, 2014
United States v. Chhun, No. 10-50296 (9th Cir. Mar. 11, 2014) (Bea, J., with O'Scannlain and Graber) ---
What does it mean for two countries to be "at peace"? Does there have to be an ongoing military operation, or can there merely be tensions and hostilities that have been kept just below the boiling point for a long time? And what is the way to properly object to a jury instruction involving this question when the district court has already ruled on what it means?
The defendant is a Cambodian immigrant who came to the United States as a child with his family to escape the Pol Pot regime. Between 1999 and 2000, he conspired with others to overthrow the regime of Hun Sen, an ally of Pol Pot who had come to power following a coup in 1997. His coconspirators formed the Cambodian Freedom Fighters and ultimately launched "Operation Volcano" in November 2000, which was rebuffed by government tanks after several government buildings in Phomh Penh had been attacked. CFF soldiers and a civilian were killed in the attack. After Operation Volcano, the defendant returned to the United States and resumed his life as a tax preparer.
That is, until four and a half years later, when he was indicted on (among other charges) violating 18 U.S.C. § 960, the Neutrality Act. "Whoever," the Act provides, sets forth from the United States to participate in "any military or naval expedition or enterprise" directed against any country "with whom the United States is at peace," shall be punished under the code. (He was also charged under 18 U.S.C. § 956(b), which also has the "at peace" element and which carries a maximum 25-year sentence.) The Ninth Circuit held that the "at peace" question is for a jury to decide as a matter of fact, rather than a question of law for a judge -- the parties had agreed as much at trial, even though the defendant on appeal pointed to resolutions from the House and Senate in 1998 that supported prosecuting Hun Sen for human rights violations that he committed in the coup.
The court then ruled that the defendant did not properly preserve his challenge to the definition of "at peace" in the jury instructions. The defendant did not state his grounds for objecting to the instructions, which ordinarily might forfeit an appellate challenge (except for plain error). But if doing so would be a "pointless formality," there's no need to state the grounds. Under United States v. Klinger, 128 F.3d 705, 711 (9th Cir. 1997), a "pointless formality" occurs if the defendant argues the disputed matter with the court "throughout the trial," the record makes clear that the court knew what the defendant's position was, and the party proposed an alternative instruction. Here, the definition of the term "at peace" had been the subject of two of the court's orders, one of which was published in Federal Supplement, Second Series. In that order, the district court had "tried to articulate" the defendant's position for him. But what ultimately doomed his objection to the jury instruction to plain-error review was his failure to propose an alternative instruction, either before the district court or the Ninth Circuit.
So then what does it mean for the United States to be "at peace" with a foreign country? The Southern District of Florida had held that the United States was not "at peace" with Nicaragua when the CIA was funding the Contra rebels, and the Eastern District of California had granted discovery to the defendant to determine whether there had been either an overt or covert military operation against Laos in 2009. And the Neutrality Act itself had been passed -- in 1794 -- in response to the attempt of French diplomats to use the United States as a staging ground in its war against England. The point of the act was to prevent United States nationals from becoming involved in foreign wars. Thus the meaning of "at peace" required "active military operations," and the district court did not plainly err when it included that definition in its jury instruction.
The defendant was also convicted under 18 U.S.C. § 956 (a), a provision of AEDPA that imposed a maximum life sentence for those who conspire to commit murder abroad. The court held that this provision was not unconstitutionally vague, and then upheld the life sentence recommended by the probation office as both procedurally and substantively reasonable.
The opinion is here:
Dickens v. Ryan, No. 08-99017 (9th Cir. Mar. 11, 2014) (per curiam order from the en banc court)
[Ed. note -- this is an Arizona FPD case] --- This is a death-penalty habeas appeal. Before the en banc court, the petitioner lost his argument that he could not be executed because he was not the actual killer, but won a remand to the district court to show cause and prejudice under Martinez v. Ryan, 132 S. Ct. 1309 (2012), to excuse the procedural default of a penalty-phase ineffective-assistance claim. Then the petitioner committed suicide, which prompted the state to ask the court to vacate the published en banc opinion. The en banc court denied the state's motion. The court undoubtedly had jurisdiction when the opinion came out, the precedent is a valuable one that will affect many individuals (including a significant number on death row in Arizona), and only the state would be prejudiced if the decision were to remain as precedent. Though the panel included members from the left, center, and right wings of the court in as equal numbers as possible (4, 4, and 3, respectively), only Judge Callahan dissented from the order. She argued that the opinion should be vacated because the Supreme Court cannot review it in light of the petitioner's death.
The order is here:
[Ed. note -- Jon asked me to step in while he's out of the office for a few days.]
If the government grants immunity to one of its own witnesses, when does it also have to grant immunity to a defense witness in order to preserve the defendant's right to a fair trial? Here, the defendant was tried for bribery charges related to Randy Cunningham, a former member of Congress from San Diego, and the government granted immunity to a witness favorable to its side. Under United States v. Straub, 538 F.3d 1147 (9th Cir. 2008), the government would have also had to provide immunity to favorable defense witnesses whose testimony directly contradicted that of government witnesses. In a prior appeal, the court had remanded for an evidentiary hearing under Straub, at which the defendant argued that two of his witnesses should have received immunity and proffered the favorable testimony they would have given. The Ninth Circuit held that the defense witnesses did not require immunity because their testimony only pointed to other aspects of the evidence against the defendant and did not directly contradict that evidence.
The court also held that forfeiture orders are not subject to the Apprendi jury-trial requirement and that the defendant did not show an entitlement to a new trial based on evidence available to the defendant at the original trial.
The opinion is here:
Sunday, March 09, 2014
Case o' The Week: If At First You Don't Succeed, Try, Try Again (if you're a P.O. or AUSA) - Post-prison modifications of supervised release
Sentencing is, of course, final. Absent changed conditions, there’s no going back after the jail sentence is done, to get a second bite of the apple and tinker with the terms of supervised release.
Unless you are the government.
United States v. Bainbridge, 2014 WL 878832 (9th Cir. Mar. 6, 2014), decision available here.
Players: Decision by Judge Bea, joined by Justice (Ret.) O’Connor and Judge Tallman. Hard-fought appeal by D. W. Wa. & Idaho Ass’t Federal Defender Matthew Campbell.
Facts: After being convicted for Assault with Intent to Kidnap, Bainbridge was sentenced to 97 months of custody and three years of supervised release. Id. at *1. There were bad facts, involving the rape of a disabled woman in a motor home. Id.
Bainbridge served his term, and Probation then petitioned to modify his conditions of supervised release. Id. The government then filed a motion compelling Bainbridge to undergo a sexual deviancy evaluation, to determine whether Probation’s requested conditions were necessary. Id. The district court granted the government’s motion, over the defense objection that the court lacked jurisdiction to change conditions of supervised release absent a change of circumstances and that the changed conditions were unreasonable. Id.
Issue(s): “This case presents two questions: can a district court impose a sexual deviancy evaluation as a condition of supervised release when deviant sexual conduct was not an element of the underlying crime of conviction? If so, is it essential the Government prove a change in circumstances since the original supervised release conditions were imposed, to justify such an additional condition?” Id. at *1.
Held: “We hold that in the circumstances of this case, the sexual deviancy evaluation can be so imposed, without proof of a change in such circumstances.” Id.
Of Note: This is a disappointing and dangerous decision. On appeal, Bainbridge argued that Federal Rule of Criminal Procedure 32.1(c) did not provide the district with jurisdiction to modify the conditions of supervision absent changed circumstances. Id. at *3. NOTE that there was no violation alleged: the Probation office (and the government, riding the P.O.’s coattails), just thought that sexual deviancy evaluation (and forced psych counseling, and polygraph tests) would be a good idea. Id. at *2.
Does this mean that the government and the Probation Office can forget to add conditions at sentencing, and get a second bite at the supervised release apple later – even with no violation or changed condition? Yep: while “it may be inefficient to omit important conditions and later, upon further reflection, petition the court to incorporate such conditions, the relevant statutes and rules do not prohibit such practice.” Id. at *5 (internal quotations and citation omitted).
How to Use: Does the “law of the case” doctrine prevent a district court from flip-flopping and adding conditions later after release from custody, when no circumstances have changed?
It didn’t here. Id. at *5 & n.8.
Note, however, that Judge Bea repeatedly notes that the sentencing court in Bainbridge didn’t impose these sex offender conditions at sentencing, but explicitly left it open at sentencing for the Probation Office to return and seek modifications at a later time if additional conditions are something that “needs to be addressed.” Id. “In such circumstances” the law of the case doctrine doesn’t preclude the new conditions – but worth litigating whether the doctrine would preclude these modifications if the sentencing court hadn’t left this door open.
For Further Reading: What do Senator Rand Paul (and reportedly half the Senate’s Republicans) and Attorney General Eric Holder have in common? They’re fed up with federal mandatory minimum sentencing laws and are itching for reform. For a great piece on an unexpected bipartisan alliance (with discussion of good legislation to come), see Matt Apuzzo, Holder and Republicans Unite to Soften Sentencing Laws, New York Times, Mar. 3, 2014, available here.
Image of “second bite of the apple” album cover from http://www.themusik.altervista.org/testi/second-bite-of-the-apple-dei-beady-eye/3006
Image of Attorney General Holder and Senator Rand Paul from http://www.thenation.com/sites/default/files/holder_paul_img.jpg
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org
Thursday, March 06, 2014
United States v. Bainbridge, No. 30017 (3-6-14) (Bea with O'Connor and Tallman).
This is a change in conditions of SR case. The defendant pled to assault with intent to kidnap. He served his sentence, and upon his release, the probation officer asked to modify his SR conditions to reflect sex offense conditions. The assault involved a sexual assault and the court had imposed a registration requirement. The probation officer wanted more. The court ordered a sexual deviancy evaluation be performed before he imposed additional requirements. On appeal, the defendant argued that the court lacked jurisdiction to modify conditions absent changed circumstances or new rehab approaches. He also argued that the court erred. He lost on both points. The 9th held that under 3583(e)(2) the court had the jurisdiction and power to modify even absent a change. The statute does not restrict jurisdiction to changes. The court possesses the power. The 9th sides with the 8th and 10th circuits on this. The 9th also found no error given the circumstances of the offense and the need to protect the community and address the offense. Moreover, the court was gathering information so he would not have to impose unneeded or unnecessary conditions.
Monday, March 03, 2014
United States v. Tanke, No. 12-10362 (3-3-14 )(Fisher with Berzon; Wallace concurring).
When does a fraud scheme end? When the scheme is completed? The last proceeds trickle in? Or when a last act, like a lulling letter, is sent? And how does this play out with mail fraud? Here, the 9th considers a fraudulent scheme and bankruptcy fraud that occurred when the defendant, an officer with and employed by, say Paul Inc., borrowed without authority from Peter Inc. The question here was whether a letter sent after completion of the fraudulent borrowings sent to put that matter to bed was fraudulent? The 9th held that mailings designed to avoid detection or responsibility for fraudulent scheme falls within the mail fraud statute when they are sent before the scheme is completed. As for when the scheme ends, the scope of the scheme as devised by the perpetrator is examined. (Page 18). Thus there is a totality of circumstances test, looking at the acts of the defendant, and whether a lulling letter is actually within the scheme. In this case, a jury could have found that a lulling letter was part of the scheme, designed to conceal.In the future, this will require courts and juries to look at a continuum of actions, and to make such determinations.
The 9th also affirmed the enhancements for sophisticated means. The case is remanded however because there was error in restitution (conceded to by the government).
Concurring, Wallace argues that the majority went too far in fashioning a statute of limitations test, looking at acts to signal closure of a fraud, instead of a totality of circumstances. Wallace believes that a totality of circumstances takes in this case, and that the majority need not extend the test of looking at a specific ending act.
United States v. Perez-Valencia, No. 12-50063 (3-3-14) (Trott with O'Scannlain with Clifton).This case is about the proper delegation of authorization of wiretap approval. In this case, the 9th remanded to see if the state district attorney's office had properly authorized the approval when the district attorney was out of the jurisdiction. The district court examined the delegation. The record indicated that the delegation was for when the district attorney was absent and was for a bundle of authority and was not a delegation of just the wiretap authority, even when the district attorney was present. As such, the delegation was proper, and so was the wiretap authority.
Sunday, March 02, 2014
Case o' The Week: Tagging Sandbagging - Ninth, Maloney and Improper Rebuttal Argument
United States v. Maloney, No. 11-40311 (9th Cir. Feb. 28, 2014) (en banc) (Ord.) , decision available here.
Players: En banc order by Judge Wardlaw, joined by: CJ Kozinski, Judges Pregerson, Thomas, McKeown, Fletcher, Paez, Rawlinson, Clifton, N.R. Smith, and Hurwitz (with Judge Smith concurring in the result only).
Facts: In Nov. 2012, the Ninth issued an opinion upholding a refusal to allow a trial surrebuttal for the defense, when the government raised new factual arguments for the first time in rebuttal. Maloney, 699 F.3d 1130, 1143-45 (9th Cir. 2012); see also blog here.
Visiting Circuit Judge Gilman wrote a terrific dissent, where he quotes from the oral argument with AUSA admitting that he was sandbagging. Id. at 1149
“Judge Gilman: Alright, then why didn't you raise this [lack-of-luggage] argument in your first argument on summation?
Assistant U.S. Attorney, Steve Miller: Because I don't believe that I needed to.
Judge Gilman: Aren't you sandbagging a bit—to wait for rebuttal?
Miller: Yes I was.”
The Ninth voted to take the case en banc: it was argued in Sept. 2013. United States v. Maloney, No. 11-40311 (9th Cir. Feb. 28, 2014) (Ord.), at 4.
How did the argument go? Suffice it to say that Chief Judge Kozinski advised the AUSA to take the video of the oral argument back to the San Diego United States Attorney’s office, watch it with the United States Attorney, and “see whether this is something that you want to be teaching your line attorneys, your Assistant AUSAs, that this is proper conduct . . . . sometimes the right thing to do is to confess error.” See Maloney En Banc Argument here at 59:00.
Issue(s): What happened after the San Diego United States Attorney watched the video of the oral argument?
Held: “On October 7, 2013, the United States Attorney for the Southern District of California, Laura Duffy, filed a Motion to Summarily Reverse the Conviction, Vacate the Sentence and Remand to the District Court. In that motion, the United States Attorney represented that she and several senior attorneys in her office had reviewed the video of the en banc oral argument and reconsidered the closing arguments made in the district court. They thereafter concluded that ‘no reference should have been made to luggage in rebuttal argument.’ The United States Attorney’s Office also stated that it planned to ‘use the video of the [en banc] argument as a training tool to reinforce the principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument and must make every effort to stay well within these rules.’” Maloney, (Ord.), at 4-5.... “Accordingly, we GRANT the motion to reverse the conviction, vacate the sentence, and remand to the district court.” Id. at *5.
Of Note: As has been noted by many, the Maloney en banc argument is one of the remarkable arguments heard in the Ninth. It has too many bon mots to fully recount here. A staid account of the exchange can be found here. A less deferential summary can be found here.
The single best line? When AUSA Castetter complains to the Court that he didn’t know he’d be arguing prosecutorial misconduct, Judge McKeown dryly observes: “Not great to be sandbagged is what you’re saying.” See video here at 1:01:18
How to Use: Buried among the barbs is law of import. Judge Gilman’s dissent in the original Maloney case beautifully describes out what is off-limits in a rebuttal argument. Maloney, 699 F.3d at 1151-52 (Gilman, J. dissenting). Combine his dissent, with Judge Wardlaw’s Maloney order, when sandbagged on rebuttal.
For Further Reading: A San Diego AUSA steps over the line during closing argument in a drug case, and Judge Pregerson – one of the panel’s members – calls the government out on the error.
Maloney? Yes – but it is also Sanchez, a case with the same facts – and decided just three years ago.
Déjà vu, all over again. See Sanchez blog entry here.
Image of Maloney family crest from http://www.irishgathering.ie/images/coa/2011/maloney_large.gif
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org