Sunday, March 19, 2017

Case o' The Week: Many are the afflictions of the righteous: but the [Ninth] delivereth him out of [some] of them - Job and King Searches

 Illegal searches, denied suppression motions, an unsuccessful trial, a thirty-year custodial term, and an appeal.
 The Ninth rewards the patience of Job.
United States v. Job, 2017 WL 971803 (9th Cir. Mar. 14, 2017), decision available here.

Players: Decision by (the always-welcome) visiting District Judge Friedman, District of Columbia, joined by Judges Tashima and Paez.  

Facts: Cops, looking for some other dude, happened upon Travis Job: they patted him down. Id. at *2.
  They discovered a glass pipe in Job’s pocket, $1,450 in cash, and car keys. Id. When the cops pushed the key fob a car in the driveway beeped and unlocked. Id.
   Cops searched the car and found meth, a cig with Spice, another glass pipe, and a cell phone. Id.  At some unknown point, the officers discovered Jobs was on probation “with a 4th amendment waiver.” Id.
  Job was charged in a meth conspiracy with Robert Rodriguez, and others. Id. at *2 (see also United States v. Rodriguez, 2017 WL 971809 (9th Cir. Mar. 14,2017)(discussing challenges to wiretap). Job’s challenges to the searches of his person and car were denied. He was convicted at trial and sentenced to 360 months [other offenses and searches were also involved in the case]. Id. at *3.   

Issue(s): “[Job] argues that the district court erred by denying his motions to suppress evidence found during searches of his person [and] car . . . .” Id. at *1.

Held: “In denying Job’s motions to suppress, the district court concluded — based on our decision in United States v. King — that Job’s Fourth Amendment search waiver provided a justification for all three searches. 736 F.3d 805, 810 (9th Cir. 2013). In King, we held that a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment. Id. The district court erred by applying King’s holding to this case . . .”  Id. at *3.
  “The district court erred in denying Job’s motions to suppress evidence . . . solely on the basis of Job’s Fourth Amendment search waiver.” Id. at *4 (internal quotations and citation omitted).

Of Note: There were two problems with the government’s use of King in the district court. First, “it is undisputed that the officers were unaware of Job’s Fourth Amendment search waiver when they stopped him and patted him down.” Id. at *3. However, the Ninth’s policy rationale behind permitting the suspicionless searches of parolees (and probationers) requires that cops know of the search condition before searching. Id. Without that key fact, King’s “suspicionless search” rule can’t salvage a bad search.
  Second, King only applies to folks on paper for violent felonies –here, Job was on probation for a narcotic offense (Cal. H&S § 11377(a)). Id. at *4. A probation search waiver for a drug offense (offenses that have been deemed “nonviolent” by the Ninth) won’t justify a King suspicionless search of person, car, or home. Id.

How to Use: It is all well and good that the district court erred -- for Mr. Job, however, the far more-pressing question is the actual impact of the holding on convictions underlying his 30 year sentence?
  The Ninth employs harmless error review to answer that question. Judge Friedman schools the government for misstating the standard for this harmless error review: the test is not “whether a rational jury could have found Job guilty.” Id. at *8 & n.6. Instead, this error is “harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at *8 (internal quotations and citation omitted).
  The Ninth ultimately reverses one count of conviction under the standard as correctly set forth by Judge Friedman. Take careful note of footnote six: the government’s (wrong) standard of review would have probably meant defeat for Mr. Job. Job is a useful summary of the correct S.O.R. for Fourth Amendment motions after trial (and a potent reminder not to trust the government’s asserted standards on appeal).
The Honorable Chief Judge Thomas, with the Honorable Judges Bea and Kozinski (left to right).
For Further Reading: Republican-appointed judges are testifying in Congress, and opposing a Ninth Circuit split. Judges Bea and Kozinski joined C.J. Thomas at the House Judiciary Subcommittee to oppose the proposed creation of a new 12th Circuit from current Ninth States. For a video of their testimony, see the C-SPAN link here
  On a related note, Republican-appointed jurists occasionally disagree with some of the decisions of their colleagues on the Ninth. They are not, however, big fans of the Executive’s ad hominem attacks on the Judiciary. For an interesting piece on a very interesting dissent along these lines, see Appeals Court Judges Rebuke Trump for Personal Attacks, available here.


Image of the Honorable Chief Judge Thomas, the Honorable Judge Bea, and the Honorable Judge Kozinski, from

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


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Wednesday, March 15, 2017

1.  United States v. Job, No. 14-50472 (3-14-17)(Friedman w/Tashima and Paez).  The 9th reversed the denial of a suppression motion, vacated a conviction, affirmed a conspiracy conviction, made sentencing rulings, and remanded for resentencing.  This case concerned a meth conspiracy and possession with intent to distribute. 

The search of the defendant was supposedly conducted under a probation waiver of 4th amendment rights.  However, the officers conducted the search of person and car without knowing of the defendant's probationary status or the waiver.  As to the search of person and car search, the 9th found it unreasonable, and not falling under Terry. As such, the evidence was suppressed.  This had the effect of vacating the possession with intent conviction.  The conspiracy conviction was affirmed, however, because independent evidence supported it.

As for sentencing, the district court failed to make findings as to three objections.  This concerned the importation of meth, the use of a home for production of meth, and the toxic discharge.  All three were enhancements.  The 9th found that the government did not produce evidence for such enhancements.  The sentence was vacated and remanded.

The decision is here:


2.  United States v. Rodriguez, No. 15-50096 (3-14-17)(Friedman w/Tashima and Paez).  The 9th affirmed the drug convictions.  The 9th held that the district court acted within its discretion in finding that the wiretap was necessary.  The sentence was vacated and remanded because the district court failed to allow the defendant to challenge the 851 prior convictions that led to an enhancement.

The decision is here:

Tuesday, March 14, 2017

US v. Martinez, No. 15-50205 (3-10-17)(Wardlaw w/Reinhardt & Whyte).  The 9th held that the district court erred by responding to a jury note without consulting counsel in violation of Fed. R. Crim. P. 43(a) and the sixth amendment.  The jury was asked for a special finding in a 1326 reentry case.  The special finding dealt with the date of removal (raising the stat max from 2 years to 20). The jury asked about the date's significance, and the court, without consulting counsel, responded to the note by stating that it was a matter for the court to consider.  This response could not be harmless.  The immigration file had numerous mistakes, and the defense was that the government could not prove removal, with the mistakes, beyond a reasonable doubt.  The court response relieved the jury of finding the date beyond a reasonable doubt.  The sentence is vacated and remanded.  On remand, the government can retry the removal date issue or the defendant can be sentenced under the two year max.

Congrats to Doug Keller of the Federal Defenders of San Diego.

The decision is here:
US v. Perkins, 15-30035 (3-13-17)(Tashima w/Kleinfeld; dissent by Murguia).  The 9th suppressed evidence found on a defendant's computers because of a Franks violation in obtaining the search warrant.  The defendant, traveling from abroad, was stopped in Canada and his laptop computer searched.  The defendant had a prior sex offense.  The Canadian police found two photos of underage females, but determined that they did not meet the Canadian definition of "sexual purpose."  When the defendant got back to the United States, the Homeland Security agent took a look, and decided that the images met the federal definition.  In seeking a warrant, he omitted the Canadian determination and images of the photos for the magistrate to make a neutral determination.  The warrant issued for a further search and child porn was found.  The defendant entered a conditional plea and appealed the denial of the motion to suppress.

The 9th suppressed.  The district court clearly erred in not finding that the agent acted in reckless disregard in omitting relevant evidence.  Such reckless disregard in omitting the evidence misled the magistrate.  If the facts had been included, probable cause would not have been found.  As such, under Franks, the evidence must be suppressed.
Murguia dissented.  She argued that the majority failed to give deference to the district court, fashions a new rule, and the decision is unsupported by the totality of circumstances.

Congrats to Corey Endo and Vicki Lai of the FPD Wash. West (Seattle).  A tremendous Franks victory.

The decision is here:

Sunday, March 12, 2017

Case o' The Week: 1 (Jury Note) + 0 (Defense counsel) = 1 (Remand): Bladimir Martinez, Jury Notes, and Structural Error

The Honorable Judge Kim Wardlaw

"You have a problem with that?"
(Because, it turns out, the Ninth does as well). 
 United States v. Bladimir Martinez, 2017 U.S. App. LEXIS 4270 (9th Cir. Mar. 10, 2017), decision available here.

Players: Decision by Judge Wardlaw, joined by Judges Reinhardt and ND Cal District Judge Ronald Whyte. 
 Big win for AFD Doug Keller, Federal Defenders of San Diego, Inc.

Facts: Martinez was found just north of the border. Id. at *3-4. He was charged with 8 USC § 1326. Id. at *3. Specifically, he was charged with having been removed “subsequent to December 3, 2010,” the date of an agg felony conviction. Id.
  The jury was not instructed that it had to make a finding about the removal date, or that this removal date had to be proved beyond a reasonable doubt. Id. at *5.
  The jury wrote a note, asking about a portion on the verdict form that listed the December date. Id. at *5-*6. Without telling counsel, the judge wrote back, “It is a matter for the court to consider, not the jury. The jury has to consider whether the defendant was deported or removed after that date.” Id. at *6.
  Eight minutes later the jury reported it had reached a (guilty) verdict. Id.
  When counsel returned, the court revealed the earlier question and explained, “I didn’t think it was important to bring [counsel] back in to answer this question, so I answered it myself . . . . So you know, if you have a problem with that, I guess you’ll take it up with the Court of Appeals.” Id. at *6.
  “Defense counsel apparently had a problem with the court’s decision not to consult with counsel before answering the jury’s question, and this is the resulting appeal.” Id.

Issue(s): “[W]hether the judge's ex parte response to a mid-deliberations jury note about the significance of an Apprendi sentencing factor was structural in nature[?]” Id. at *17-*18.

Held: “We need not decide in this case . . . because we find that the constitutional error was not harmless beyond a reasonable doubt . . . .” Id.
   “The court’s failure to consult Martinez’s counsel before responding to the jury note violated [Fed. R. Crim. Proc. Rule 43]. . . and the Sixth Amendment. Because much of the government’s documentary evidence concerning Martinez’s prior removal contained demonstrable errors, and because defense counsel, had she been consulted, would have specifically requested that the trial court instruct the jury that the government was required to prove the removal date beyond a reasonable doubt, the district judge’s error was constitutionally harmful. We therefore vacate Martinez’s sentence and strike the special finding. On remand, the government may elect to retry the removal date issue before a sentencing jury, or it may request that the district court resentence Martinez under the two-year sentencing provision in 8 U.S.C. § 1326(a).” Id. at *1.
  “[T]he district court judge expressed views . . . that reasonably could lead the defendant to question the presence of bias. Because we do not think that the district court judge would be able to put these views out of his mind and in order to preserve the appearance of justice, upon remand the Clerk . . . shall reassign this case to a different district court judge . . . .” Id. at *28.

Of Note: The Court reversed after a jury trial, so why wasn’t the conviction knocked, instead of the sentence?
  The timing of the removal escalated the exposure on this case from two, to twenty, years. Id. *3. Martinez was found guilty of the offense – being found in the U.S. after removal – but because the jury question bore on this timing issue (removal after agg felony?) this was Apprendi sentencing error. The case was accordingly remanded for a sentencing finding by a jury, or (preferably!), imposition of the two-year max sentence. Id. at *27 & n.7.

How to Use: The hairy issue at the heart of Martinez was Cronic structural error. Id. at *14. Judge Wardlaw carefully works through this analysis, concluding that the Ninth “seems to have muddled the analysis of which trial stages are ‘critical stages’ so as to trigger Sixth Amendment rights and which are ‘critical stages’ so that the absence of counsel during the stage is structural error.” Id. at *14 & n.4.
  Though the Court dodges the ultimate issue here, Martinez is nonetheless a useful decision to at least identify the competing authority on structural error.                                              
For Further Reading: The Brave Little Tailor has nothing on POTUS: last week, President Trump fell 46 in one blow.
 For a list of the U.S. Attorneys asked to resign by the new Administration, with separate links to reporting articles, see Wikipedia entry here

Image of the Honorable Judge Kim Wardlaw from

Image of Mickey Mouse, as the Brave Little Tailor, from 

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


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