Tuesday, October 18, 2016

1.  Visciotti v. Martel, No. 11-99008 (10-17-16)(Berzon w/Pregerson &a Tashima; concurrence by Berzon). The Supreme Court's summary reversal of the granting of habeas relief for IAC in the sentencing phase has ramifications here.  The reversal stated that the state supreme court's denial of PCR relief for want of prejudice was not unreasonable and that habeas relief was not warranted. The 9th affirmed the district court's denial of the habeas remand.  The 9th did hold that the issue of public closure of the death penalty qualification void dire was not IAC. Concurring, Berzon, joined by Pregersn, is concerned that broad denial of habeas relief on cert without the benefit of briefing does a disservice.

The decision is here:


2.  US v. Camez, No. 14-10251 (10-17-16)(Graber w/McKeown & Peterson, D.J.). The 9th affirms the RICO conviction for continuing crimes that spanned his 18th birthday.  The district court had instructed the jury that it could only considered crimes that continued after the defendant's 18th birthday. A special verdict made this clear.

The decision is here:


3. US v. Dowai, No. 14-10277 (10-17-16)(Callahan w/Thomas & Murguia).  The defendant was convicted of visa fraud and false statements in the Northern Mariana Islands. She challenged her convictions by asserting that the Northern Mariana Islands District Court was not an independent judiciary. The 9th held that the court was validly established under article IV of the Constitution giving Congress authority to set up courts in the territories.  Supreme Court precedent also forecloses the argument.

The decision is here:


4. US v. Nixon, No. 16-50097 (10-17-16)(per durian w/Trott, Owens, & Friedland). The 9th holds that a congressional appropriations rider that prohibits DOJ from using funds to prosecute individuals acting under state medical marijuana laws does not impact a federal district court from imposing a restriction on marijuana use as a condition of probation. Cf US v. McIntosh, 2016 WL 4363168 (9th Cir. Aug. 16, 2016).

The decision is here:


Sunday, October 16, 2016

Case o' The Week: "Make 'em Whole" takes Client Toll - Kaplan and Restitution Valuation Methods

“As good as new,” is Ninth’s new rule.
 (On your client’s dime).
United States v. Kaplan, 2016 WL 5859856 (9th Cir. Oct. 7, 2016), decision available here.

Players: Decision by D.J. Ezra, joined by Judges Hawkins and McKeown.

Facts: Kaplan and his co-defendant, Strycharske, were attempting to manufacture hash oil in their apartment. Id. Fumes from the process ignited and exploded, blowing out the apartment’s wall and lighting “significant portions of the building complex in flames.” Id. Six victims were injured; one later died from complications. Id. The pair plead guilty to identical plea agreements, and the court departed upwards from a high-end of thirty months, to three years custody. Id. The court ordered roughly $2.7 million in restitution. Id. at *2. On appeal, the pair contested $40,000 of the restitution order, arguing that the court improperly used “replacement value” to calculate restitution. Id.

Issue(s): “Kaplan and Strycharske appeal their . . . judgment of restitution . . . on the ground that the district court erred by calculating the restitution award using replacement value instead of fair market value.” Id. at *1.

Held:This Court now joins our sister circuits in concluding that fair market value generally provides the best measure to ensure restitution in the ‘full amount’ of the victim’s loss, but that ‘replacement value’ is an appropriate measure of destroyed property under § 3663A(b)(1)(B) where the fair market value is either difficult to determine or would otherwise be an inadequate or inferior measure of the value of a fungible commodity with a viable market, like precious metals, coffee, lumber, currency, wheat, or event marijuana. . . .  It is within the district court’s discretion to determine the proper method of calculating the value of such property when ordering restitution pursuant to 18 U.S.C. § 3663A.Id. at *3.

Of Note: It is easy to dismiss this odd case, with its beef over $40k from a $2.7 million restitution order. But buried within Kaplan is an important new Ninth rule.
  As the Court explains, “How to measure the value of destroyed property when calculating a restitution award is a matter of first impression in this circuit.” Id. at *2. Should restitution is to be determined by fair market value (the yard-sale price of an old toaster), or by replacement value (Amazon’s price for a new toaster replacement?) Id. The Mandatory Victim Restitution Act (MVRA) is silent on which method to use. Id.
  As noted above, the Ninth now adopts the circuit trend: the district court has discretion. Be very mindful of this new Ninth MVRA rule – as flagged last week, DOJ has money on its mind. See blog entry here. Kaplan’s coming soon, to a restitution hearing near you.

How to Use: There are limits to discretion. The Ninth explains, “Where property is personal or unique, or neither fungible nor easily sold on a viable market, district courts should be permitted the discretion to make victims whole by determining an appropriate measure of value under the circumstances of the case before them.” Id. *4. An appropriate use of “replacement value?” “[C]lothes, furniture, and home appliances.” Id. However, Kaplan does not hold that “replacement value” is appropriate for all property.
  Challenge AUSAs and PO’s who overstate the scope of the decision, and keep tackling the issue of valuation methods for other categories of property.
For Further Reading: “Justice Department report blasts San Francisco Police.” See Washington Post article here. In a remarkable 432-page report, DOJ lambasts the S.F.P.D. for its use of force, bias, community policing practices, accountability measures, and its collection and maintenance of data. The full D.O.J. report is available here
  Meanwhile, Justice and the USAO are not appealing District Judge Chen’s historic Armstrong discovery order, requiring a disclosure of a remarkable amount of information relating to (what we’ve alleged) are race-based enforcement of drug offenses in San Francisco. See article here. 
  What awaits the deeply troubled SF Police Department, as the need for real structural reform becomes increasingly clear? 
  Ask Oakland, and L.A. See article here

SF Police Department patch from https://leb.fbi.gov/2011/march/image/san-francisco-police-patch 

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



Monday, October 10, 2016

Case o' The Week: Forfeiture hits a new Lo -- United States v. Henry Lo, Forfeiture, and Restitution

 Q: What do you call a forfeiture order that seizes proceeds from dismissed or acquitted counts?
 A: Valid.
 United States v. Henry Lo, 2016 WL 5799706 (9th Cir. Oct. 5, 2016), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Clifton and DJ Lamberth. 
  Hard fought appeal by NorCal CJA stalwart Martha Boersch, of Boersch Shapiro LLP.

Facts: Lo was charged with wire and mail fraud. Id. at *1. He pleaded guilty to some of the counts in the indictment, in a standard NorCal plea agreement: a detailed fact pattern in paragraph 2, a concession of fraud proceeds of over $2 million, and an appellate waiver. Id. at *2-*3. The plea agreement specified a restitution amount of no less than $1.7 million. Id. at *3. 
  Before sentencing, the government moved for a forfeiture order of over $2.3 million. Id. After sentencing, the Court ordered a forfeiture money judgment of over $2.3 million, and also ordered Lo pay $2.3 million in restitution. Id. Lo appealed. Id.

Issue(s): “Before addressing Lo’s claims, we must first address the government’s argument that Lo waived his right to appeal any aspect of the sentence by agreeing to an appeal waiver in his plea agreement.” Id. at *4.

Held: “Because Lo validly waived his right to appeal, and none of the exceptions to such waivers are applicable, we dismiss this appeal.” Id. at *1.

Of Note: Lo is now a seminal case in the Ninth on restitution and forfeiture. The decision first lays out the contractual interpretations of plea agreements, discusses exceptions to those interpretations, and describes the interplay between restitution and forfeiture. In so doing Lo sets forth several new rules. 
  It has long been a requirement that a defendant receive notice before being hit with restitution. That notice requirement doesn’t apply, Judge Ikuta explains, to forfeiture orders – a beast authorized by an entirely different statute. Id. *8. “Therefore, an appeal waiver can validly waive the right to appeal a forfeiture order issued as part of the sentence regardless of whether the plea agreement provides the defendant with a reasonably accurate estimate of the amount of forfeiture or whether the defendant was given adequate notice before a district court determined that amount.” Id. at *9. 
  The take-away? Your client’s dough is being grabbed: either through a restitution order, or a forfeiture order. If the money is seized through restitution, there are specific notice requirements that – if not followed – can undermine the validity of an appellate waiver. 
  If the funds are seized through forfeiture? Not so much.

How to Use: Under the forfeiture statute the government can get a forfeiture order to seize proceeds of the crimes for which the defendant was convicted. If the defendant is convicted of counts 1, 2, and 3, can the court order forfeiture of proceeds from crimes alleged in dismissed (or acquitted) counts 4, 5, and 6? 
  In another new rule, Judge Ikuta holds, “yes.” 
  Joining the Seventh Circuit, the Ninth concludes that the “proceeds of the crime of conviction” for forfeiture “consist of the funds involved in that fraudulent scheme, including additional executions of the scheme that were not specifically charged or on which the defendant was acquitted.” Id. at *12 (emphasis added). 
  This is analogous to that cursed guideline “relevant conduct:” a concept that can scoop up and punish charges for which your client was actually acquitted. Same idea, now expanded to forfeiture. 
  Before assuring your client a deal or trial could provide some finality, have a hard talk about the forfeiture ramifications of those dismissed (or even acquitted) counts.
For Further Reading: What’s with the surging interest in forfeiture and restitution? Turns out that grabbing the funds is an active prosecution priority of DOJ. For an accessible summary of DOJ’s blurb on restitution and forfeiture, see DOJ post here
  For a gleeful DOJ Powerpoint that gloats that a lack of a criminal conviction needn’t stand in the way of forfeiture, see pdf available here. (“No criminal restitution order? No problem!”)

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


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