U.S. v. Noriega-Perez, No. 10-50501 (2-1-12) (Tallman with Fernandez; partial dissent by Moore, D.J.).

It is hard to find renters now a-days. In this case, with two houses close to the Mexico border, the defendant rented to alien smuggling organizations (the rent was paid on time). Convicted, he argued on appeal that there was insufficient evidence of the alienage of material witnesses named in the indictment but who did not testify; eight did. The 9th held there was sufficient evidence of alienage. The witnesses who testified were situated in the same place, under the same conditions, as the ones who did not. An inference is permitted. The 9th also held that there was sufficient evidence of cross-border crossing, even if some of the witnesses were stopped at another location prior. Moore dissented from this portion concerning those witnesses who stopped at other locations. He argues that there has to be a terminus, and the nexus may well be stretched to an extent it would not support the cross border entry, but rather a harboring conviction.

U.S. v. Casasola, No. 10-50376 (1-30-12) (Schroeder with Gould and McCuskey, D.J.).

This is a derivative citizenship issue on appeal from a 1326 conviction. The defendant argued that he automatically received derivative U.S. citizenship upon his father's naturalization in 1997, when he was 14. The statute at the time required both parents to naturalize before the defendant's 18th birthday. His mother did not naturalize until he was 21. If the parents were separated, then the father's naturalization would have made the defendant a citizen. There was a distinction then between married and unmarried (the law changed one month after defendant's 18th birthday). The defendant argued that this violated his equal protection. It was not rational. Yes it was, concludes the 9th, on the basis of the argument that this protects the rights of a non-naturalized custodial parent. It also follows 9th precedent in Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003). The statute also survives another equal protection challenge in that it required the custodial parent, in a separation, to have sole custody. The 9th also declined to remand for resentencing in the wake of the criminal history change to the recency points of a prior conviction. The 9th declines to follow the lead of the 1st Circuit which permitted such a remand. The 9th, under Urena, 659 F.3d at 910, declined to follow the 1st Circuit where the sentence was reasonable and the procedure followed correct. There is now a circuit split on the issue.

Case o' The Week: JDA is A-OK -- Gonzalez and Joint Defense Agreements

In good times and in bad, in sickness and in health, through habeas claims of ineffective assistance of counsel: what defense agreements have joined let no district court put asunder.

United States v. Gonzalez, 2012 WL 206266 (9th Cir. Jan. 25, 2012), decision available here.

Players: Big win by ND Cal AFPD Dan Blank and Research and Writing Attorney Steven Koeninger. Decision by Judge Hawkins, joined by Judge M. Smith and DJ Duffy.

Facts: Gonzalez and his wife were both charged of an insurance scam relating to a car, and with burning the car to further the scheme (a 10-year mand-min). Id. at *1. Their trials were severed. Id. Gonzalez, who went first, was convicted of the fraud and beat the burning-of-the car charge. Id.

Gonzalez offered to testify on his wife’s behalf at her trial; her counsel demurred, and the wife was convicted of all counts. Id. The wife filed a habeas alleging ineffective assistance of counsel ("I.A.C.") for failing to offer Gonzalez’s testimony. During the habeas litigation, the government sought subpoenas of the wife’s original defense counsel. Id. Gonzalez’s defense counsel, AFPD Blank, sought quashal of the subpoenas and depositions of the wife’s trial defense counsel. This motion to quash was based on an oral  joint defense agreement (“JDA”) between Gonzalez and his wife made before the original trials. Id. at *2. The district court denied the motions to quash, holding that a habeas claim of I.A.C. trumped any JDA, and that all information to and from trial counsel bearing on the I.A.C. claim was discoverable. Id. Gonzalez filed an interlocutory appeal. Id.

Issue(s): “On appeal, the government does not advance the rationale proffered by the district court. Rather, it argues that (1) Gonzalez did not sufficiently establish on the record that a JDA actually existed, (2) that such an agreement could not exist in the circumstances here, where Gonzalez’s defense was adverse to [his wife’s], and (3) even if one existed, the court correctly held that [the wife’s] section 2255 claim acted as a unilateral waiver of the privilege in these circumstances.” Id. at *3 (note omitted).

Held: 1 & 2: Existence of JDA: “Here, there was sufficient evidence in the record to support the existence of a JDA, at least to a point.” Id. at *4. “If their mutual interest is defined more narrowly [as to the wife’s innocence relating to the use-of-fire count], then it is possible that their other adverse positions did not undermine their joint defense privilege on this specific issue.” Id. at *5. 

3. Waiver by Habeas Claim: “[A]llowing unilateral waiver of confidential communications by a single codefendant without the consent of the others would likely severely undermine the rationale for the joint defense privilege in the first place . . . [W]e conclude the district court’s analyses regarding privilege versus work product and unilateral waiver by filing the section 2255 petition were in error.” Id. at *8 (citation omitted).

Of Note: Gonzalez joins United States v. Henke, 222 F.3d 633 (9th Cir. 2000) as a lead Ninth JDA decision. (Interestingly, Henke also arose out of the ND Cal). Mine Gonzalez heavily for its many JDA gems: these agreements can be oral, they can be evidenced by attorney conduct, they can be count-specific in the midst of other adverse defenses, and – most importantly – they cannot be unilaterally waived by a co-defendant asserting an I.A.C. claim.

That is a terrifically important holding: imagine a JDA that is only as good as long as all defendants remain happy and no one goes after their attorneys on a post-conviction habeas. That JDA would be worthless, making the defense of complex and multi-defendant cases impossible. Judge Hawkins, thankfully, well-understands the broader significance of the Gonzalez decision, and carefully explains why unilateral waiver of JDAs by IAC petitioners would make JDAs meaningless. Id. at *7-*8.

How to Use: As Judge Hawkins emphasizes, the defense can have an oral or an implicit JDA (and many times, it makes sense to do so). Nonetheless, sometimes the clarity of a written agreement can moot the government’s whining when the case later implodes. There are many flavors of written JDAs – from limited shared work-product agreements with minimal protections, to full “Henke” agreements with cross-duties of loyalty and confidentiality. Defense counsel interested in these various types of written JDAs can contact the ND Cal FPD for samples.               
                  
For Further Reading: JDAs are wonderfully complicated beasts that spawn ethical issues by the bushel. For a concise outline of these knotty ethical questions, see here.




Image of burning car from http://electricmini.blogspot.com/2011/06/electricity-producers-launch-free-study.html


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



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U.S. v. McGowan, No. 10-50284 (1-26-12) (Reinhardt with Kozinski and W. Fletcher).

The 9th previously had reversed a judgment of acquittal following a jury's verdict of guilty. The case involved a prison guard's assault on two inmates. On this appeal, defendant argues that the court erred in failing to conditionally rule that he was entitled to a new trial. This was under Fed. R. Crim. P. 29. The 9th held that the court was not required to make such a ruling, and indeed, had no such authority to make such a ruling absent a defendant's motion. The 9th so held because the defense may want a judgement but not a new trial. There are strategic and actual reasons. Because there was no motion here, the court did not err in not ruling. The 9th also declined to rule on the IAC claim for failing to so move, leaving that to a post-conviction 2255 proceeding. Lastly, the 9th did vacate the 51 month sentence, having been imposed using suspect unreliable statements from a former inmate that was untested. On remand, the case is reassigned.

U.S. v. Gonzalez, No. 11-15025 (1-25-12) (Hawkins with M. Smith and Duffy, D.J.).

Joint Defense Agreements (JDA) can be great, except when they aren't. And, they aren't when the participants start pointing fingers in an IAC proceeding. Here, the 9th looks at a JDA between co-defendants, and spouses, charged with fraud and a fire count (10 year mandatory min). The trials were severed, when the husband said with chivalry that he did it and the wife knew nothing. After severance, the husband went first and then argued, unchivalrously, that he knew about the fraud (getting rid of a car for insurance), but not the fire. He was only convicted of fraud; the wife went down on all counts at her trial. He did not testify. The wife - the defendant here - raised IAC, arguing that her lawyer should have called the husband. The district court ordered depositions. "Wait," said husband, there is a JDA. The court shrugged and said when the parties raised IAC, the JDA became null. Not so, held the 9th, on an interlocutory appeal. Explaining JDAs, and the jurisprudence, the 9th concludes that attorney-client privilege extended to all involved. There appeared to be a JDA formed here, albeit orally. Now, comments may have been made after the JDA collapsed, but no findings were made. The 9th remanded for the district court to hold an in camera hearing to determine if and when the JDA ended, and when the comments about testifying were made.

Congratulations to AFPD Dan Blank of the Northern District of California (San Francisco) for the win.

U.S. v. Juvenile Male, No. 09-30330 (1-25-12) (Wardlaw with Gould and Bybee).

Does SORNA trump the protections of the Federal Juvenile Delinquency Act? Does SORNA survive constitutional challenges in the context of the FJDA? These issues were raised in a joint appeal brought by three juveniles convicted of aggravated sex abuse with children and ordered to comply with sex offender registration under probation or SR. The 9th held that Congress in enacting SORNA carved out an exception to the confidentiality provisions of the juvenile act, which allowed for registration which would disclose names. The 9th also upheld SORNA against a wide range of constitutional challenges in the context of juvenile adjudications.

Although losing, the Federal Defenders of Montana fought hard in mounting the challenges.

Case o' The Week: Ninth Rejects Gov't's "Attempt" Attempt - Kuok and 18 USC Section 2

This holding ain't easy, but it's good, and well-worth the mulling it takes to understand:

It is a crime to cause someone to attempt to unlawfully export restricted military gear -- but it is not a crime to attempt to cause someone to do so.  United States v. Kuok, __ F.3d __, 2012 WL 118571 (9th Cir. Jan. 17, 2012), decision available here.


Players: Decision by Judge Bybee (above right), big win by San Diego Ass’t Federal Defender Todd Burns.

Facts: Kuok, a citizen of Macau, attempted to cause undercover ICE agents to unlawfully export restricted military gear. Id. at *1.They didn’t, of course: instead they arrested Kuok as he hit the Atlanta airport on his way to Panama to complete the deal. Id. at *2. He was charged in San Diego (more on that below) with attempting to export restricted military gear without the required license: a violation of the “Armed Export Control Act” or “AECA.” Id. at *1. That statute does not have an “attempt” provision. Id. at *7. Kuok was convicted at trial. 

Issue(s): “Kuok challenges his conviction on the grounds that the AECA and its implementing regulations do not create liability for attempting to cause another person to violate the AECA.” Id. at *7. “In response, the government points to 18 USC § 2(b), which states: ‘Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.’” Id. at *7.
                       
Held: “[T]he government’s case at trial did not establish that Kuok caused an attempt to export: it established that he attempted to cause an export. That is, Kuok attempted to cause the undercover ICE agent to export the [restricted material] without a license.” Id. at *7 (emphases in original). “The government’s argument that attempt should rationally be read into § 2(b) fails in light of the rule against reading an attempt into a criminal statute that does not explicitly include it.” Id. “We hold that attempting to cause an export of defense articles without a license is not a violation of U.S. law, and vacate Kuok’s conviction on count three.” Id. at *9.

Of Note: While this is a nice little win on an obscure and rarely-used statute, it is an important victory on a much bigger principle. The government’s argument in Kuok was dangerous: it would have created criminal liability if you attempted to cause a federal agent to do something. Id. at *7. The theory would have done so by radically expanding an already expansive statute: 18 USC § 2, the general federal “principal / aider & abettor” provision. Put differently, the government wanted to make it a crime for an aider and abettor to attempt to cause an offense – even if that offense was impossible (like getting federal agents to export restricted gear) and even if that offense was never completed. Judge Bybee doesn’t buy it, and explains why in a thoughtful and extended discussion. Kuok will be an key opinion for both “principal” and “attempt” law in the circuit.

How to Use: Why San Diego? Just because the ICE agents decided to cash Kuok’s money order there. Id. at *4. This smacks of “manufactured venue” – agents cherry-picking the district by manipulating the facts of the offense. Judge Bybee doesn’t bite, and because the Court doesn’t find the venue-manufacture “extreme” in this case Kuok’s venue challenge fails. Id. Critically, however, the Court declines to“decide the issue today” of whether “manufactured venue” exists as a defense in the Circuit. Id. If your case involves venue-manipulation, take a close look at Kuok’s venue discussion, and specifically the distinction between manufacture of jurisdiction and manufacture of venue. Id.
  
For Further Reading: How could Kuok be any better? By giving us a terrific defense of the duress defense – with a reversal for failure to give duress instructions. Id. at *13. Kuok is now one of the important, post-Dixon decisions in the Ninth on the right to a duress instruction.  For a recent discussion of the federal duress defense – and its kissing cousin, “necessity,” – see Monu Bedi, Excusing Behavior: Reclassifying the Federal Common Law Defenses of Duress and Necessity Relying on the Victim’s Role, available here.


Image of the Honorable Judge Jay Bybee from http://oneutah.org/wp-content/uploads/2009/04/bybee.jpg


Steven Kalar, Senior Litigator ND Cal FPD. Website available at www.ndcalfpd.org


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U.S. v. Juvenile Male, No.11-30065 (1-20-12)(McKeown with Guy and Tallman).

The issue of "Who is an Indian" is raised in this juvenile matter. The juvenile is at least one-quarter Indian blood, and is enrolled in a tribe, resides on a reservation, and has received membership benefits. He argues, however, that he does not consider himself an Indian. It does not matter here what he thinks, reasons the 9th, because under the jurisdictional test established in Bruce, 394 F.3d at 1223-24 and more recently in U.S. v. Maggi, 598 F.3d 1073 (9th Cir. 2010), there was sufficient evidence for a trier of fact to determine he was an Indian beyond a reasonable doubt. The juvenile defendant did not contest the blood quantum prong of Bruce (some Indian blood), and he met three of the four factors in the second prong, looking at recognition -- enrollment, residence, membership benefits. There was more than enough evidence, even aside from the own consideration, to meet the jurisdictional test.

U.S. v. Solorio, No. 10-10304 (1-19-12) (Berzon with O'Scannlain and Lasnik, D.J.).

The 9th affirms a convictions for drug trafficking arising from an undercover operation. Of interest is the 9th's discussion and holding regarding interpreter oaths. Some courts have an interpreter swear an oath, under FRE 604, and it is kept on file. Other courts have interpreter's swear under FRE 603, witness oath, for the witness or trial. Here, there is no indication of any interpreter oath being sworn. However, there is no plain error because there is no prejudice. There is no indication that the interpretation is disputed or how it affected the trial. Of more concern is the 9th's allowance of DEA agents' testimony of other agents statements under a present sense impression and a finding of no Crawford violation. The 9th allowed the statements under a plain error analysis, finding no error. The statements were made during the course of the unfolding undercover buy, which was characterized as highly dangerous. The 9th bought the government argument that the non-testifying agents' were explaining what was happening so as to have support from other agents, and not for making a record for trial. This was characterized as like the "emergency exception" to Crawford carved out in Michigan v. Bryant, 131 S.Ct 1143, 1157 (2011). The statements were non-testimonial. The 9th concluded that there was sufficient evidence to support the convictions and no cumulative error.