Crawford Meets Booker: the right to confrontation at sentencing

The degree of procedural protection our clients receive during sentencing hearings is in desperate need of a second look. In Booker, we went from the constitutional decision, which would have required full trial rights before guidelines enhancements could be applied, to the remedial decision, which emphasized the importance of the guidelines for uniform sentencing, but amended the underlying statutes to render the guidelines advisory. So where does Crawford fit in now, with its reinvigoration of the right to confrontation at trial as an engine for assuring reliable factual determinations? I think two types of pre-Blakely cases should give us some clues on where to start: use of unreliable hearsay during supervised release revocation hearings; and use of controverted accomplice hearsay during disputed sentencings.

First, in the context of supervised release revocations, the Ninth Circuit has recognized a Fifth Amendment due process right to confrontation. Going back to the Supreme Court cases on probation and parole revocation (Morrissey v. Brewer and Gagnon v. Scarpelli), the court in Comito recognized "the right to confront and cross-examine adverse witnesses at a revocation hearing, unless the government shows good cause for not producing the witnesses." In Comito, the district court revoked supervised release based on hearsay evidence of fraud. The Ninth Circuit court applied a balancing test, then reversed the revocation because the district court’s reliance on disputed hearsay evidence violated the releasee’s confrontation rights. "Unsworn verbal allegation are, in general, the least reliable type of hearsay, and the particular utterances at issue here bore no particular indicia of reliability."

The Ninth Circuit reached a similar result in Martin, 984 F.2d 308 (9th Cir. 1993). There, the Ninth Circuit found the right to confrontation was violated when the district court found possession of controlled substances based solely on hearsay evidence of two urinalysis examinations. Similarly, a reported district court decision, based on Martin, found a confrontation violation in the use of police reports at the revocation hearing (Myers, 896 F. Supp. 1029 (D.Or. 1995)).

Second, the Ninth Circuit has found the use of accomplice hearsay at sentencing to violate due process. For example, in Corral, the Ninth Circuit coalesced three earlier cases to find that sentencing based on unreliable hearsay in the form of accomplice statements violated due proces: "[R]elying on accomplice hearsay without adequate indicia of reliability violated the defendant’s constitutional right to due process." Similarly, in Meza de Jesus, the Ninth Circuit reversed an enhancement based on a cross-reference from the firearm guideline to the kidnapping guideline. The court found that the "inherent unreliability" of hearsay police reports did not even establish facts by a preponderance of the evidence. Corral and Meza de Jesus provide strong support for objecting to hearsay regarding disputed facts at sentencing.

Crawford provides a strong complementary argument regarding the need for confrontation at sentencing to assure the reliability of facts upon which sentence is based. The accuracy component is now tightly tied to the opportunity to confront and crossexamine the witness providing testimony to enhance sentence. And judges should want to sentence with the confidence that disputed facts are resolved based on verified information. Without analyzing the question under the due process clause, the district judge in Gray found that, although the Sixth Amendment did not apply at sentencing, the truth-finding function described in Crawford militated strongly in favor of resolution of disputed issues with live witnesses. And as Jeffrey Fisher, who won Crawford, says here, "[I]f the judge thinks that a fact at issue will require him, as a matter of statutory reasonableness on appellate review, to impose a higher sentence, then Crawford may well apply as a matter of right."

Especially given the statistics demonstrating that district courts are generally adhering to the guidelines at about the same rate as under the mandatory system, increased incarceration based on enhancements should have full due process protections, including the right to confrontation. While the constitutional norm alone should be sufficient to require the opportunity for confrontation, we should also argue that, consistent with the doctrine of constitutional avoidance, the language of U.S.S.G. § 6A1.3's requirement that "the information has sufficient indicia of reliability to support its probable accuracy" should be read to foreclose hearsay that brings confrontation rights into serious question.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Case o' the Week: Pulliam & 4th Amendment Standing

A particularly discouraging opinion strikes dual blows to the Fourth Amendment; it slices the scope of a Fourth Amendment stop into discrete moments to deny standing, and it raises standing causality requirements. United States v. Pulliam, __ F.3d __, 2005 WL 913451 (9th Cir. April 21, 2005), available here.

Players: Hard-fought case by CD Cal AFPD Elizabeth Newman; troubling opinion by Judge Wallace; great, persuasive dissent by Wardlaw.

Facts: Gang officers follow a gang member and passenger in a car, having already decided that they were going to follow them and find a reason to stop them. Id. at *1. The cops stop the car because the "left rear brake light did not operate when the car slowed," and the officers said that the car rolled through a stop sign. Id. The cops approach with guns drawn, take the gang member and the passenger – Pulliam – out of the car, and find a gun under the passenger seat. Id. Pulliam confesses to the gun. Id.

Issue(s): The government conceded the cops had no authority to detain Pulliam, or to search the car. Id. at *3. Therefore, the issue is whether Pulliam, the passenger, had standing to contest the search of the car?

Held: No. "As a passenger with no possessory interest in the car Richards was driving, Pulliam has no reasonable expectation of privacy in a car that would permit his Fourth Amendment challenge to a search of the car." "Furthermore, Pulliam made no showing that he had any legitimate expectation of privacy in the area under the seat of the car in which he was merely a passenger . . . ." "Similarly, the mere fact that Pulliam claimed ownership of the gun does not confer standing upon him to seek its suppression." Id. at *3 (citations and quotations omitted). Pulliam didn’t argue that the stop of the car was a de facto stop of his person,– but even if it was, the discovery of the gun was not in some sense the product of his detention. Id. at *4.

Of Note: Judge Wallace is forced to concede that a passenger can have standing to challenge a search – but only when the initial stop is unlawful. Id. at *5-*6. This distinction of previous Ninth precedent is particularly unpersuasive. Note how the decision, Matrix-like, freezes slices of time to eliminate Fourth Amendment standing at each instant: no standing when the car was stopped, because the stop was lawful, no standing when the car was searched, because the passenger didn’t try to leave. Hence, the decision is important – and particularly bad – because it rejects a natural view of the "scope of the fourth amendment violation" to include the entire stop. Id. at *6.

Worry also about the opinion's overly-strict causal requirements for standing – which seems to far exceed other Fourth Amendment authority.

Aside: The driver was a parolee. Id. at *1. Why didn’t the cops stop and search him when they first saw him outside of the car? This appears to be double-pretext: cops waiting until the parolee drives, so they can search the car as well.

How to Use: To uphold this search the Court engages in a hyper-technical Fourth analysis – the defense will have to do the same. A passenger will now have to assert that the initial stop was unlawful to gain Fourth Amendment traction. Alternatively (or additionally), a passenger should assert that he or she would have left but for the seizure. Finally, anticipate articulating how the passenger seizure is causally linked to the search in light of the bad new causality requirements for standing.

For Further Reading: Judge Wardlaw’s excellent dissent nails the majority rule as "arbitrary" and identifies a Circuit split on passenger standing. Id. at *12-*13 (Wardlaw, J., dissenting). She also realistically identifies the dangers of bad faith searches – and identifies the problem lurking in this case, where the police admitted that this was a pretext search. Id. at *12. Of course, another reality of this decision is specter of race-based traffic stops by cops who know a passenger won’t be able to assert standing. See, e.g., ACLU Article here.

Steven Kalar, Senior Litigator ND Cal FPD. Website available here.

Boyde v. Brown

No. 02-99008 (4-21-05). Petitioner robbed two 7-11 stores, kidnapped clerks in each, and in the later one, shot the clerk twice in the head. He was sentenced to death. The district court denied the habeas petition both on guilt and on sentencing. The 9th considered various guilt challenges, including the allegation that there was a secret deal with a codefendant who waived jury trail and took the stand to "confess" that the codefendant did the shooting. The circumstances were very peculiar, but the 9th held that the prosecutor could have jumped on the waiver issue without having reached an agreement. The 9th also found that a Batson challenge -- an African American woman -- was met by nonracial reasons. On sentencing however the 9th reversed the district court because of IAC. Counsel failed to explore, much less present, the horrific history of child abuse suffered by petitioner, nor the whole range of abuse suffered by the other siblings, at the hands of both parents. There were also the matter of using Charles Manson, the notorious mass murderer, as an explanation of petitioner's acts (Manson said that he was the product of the society's prisons and thus society was to blame). These reasons lead the 9th to grant sentencing relief.

US v. Callum

No. 02-10210 (4-20-05). What happens when the 9th bemoans the gov't's sloppiness and lack of supervision in preparing a wiretap application? Of course, harmless error. Here the gov't applied for a wiretap. The statute is explicit about who at DOJ has to approve and when it has to approve (think muckety-muck for the former and before the court signs for the latter). Well, the 9th (Kozinski) talks about how Congress was concerned with proper authorization, but the precedent from the Supremes and the circuit is such that so long as it was apparently reviewed by DOJ, it is not a fatal insufficiency. Here, the application listed no one but as the 9th drolly notes, "If listing an unauthorized source of approval is only a 'minor' insufficiency that does not require suppression, it follows that listing no official at all is also a minor insufficiency for which suppression is not the appropriate remedy." So, not listing anyone approving the application, like the Deputy AG, is okay because listing an unauthorized person, like an Acting Deputy AG, has been found okay. The 9th also found that time is relative because the authorization from DOJ came in (according to the fax stamp) half hour after the judge signed it. The district court found this was close enough for gov't work (actually there was testimony that it had gotten there first....) and although the time stamp was inexplicable, the court's ruling was not clearly erroneous.

US v. Caymen

No. 03-30365 (4-21-05). Defendant obtained a computer by fraud, and when the police went to retrieve it, they found child porn on the hard drive. Defendant argued that the police shouldn't have looked without a warrant; the gov't argued that he didn't have standing since the computer still belonged to the store (it was taken without payment). The 9th held that the defendant had no reasonable expectation of privacy, or at least one that society and the 4th amend would protect, because he had obtained the laptop by fraud.

US v. Pulliam

No. 03-50550 (4-21-05), This is an interesting standing case. The defendant was a passenger in a car. He was also tied to a gang. The LAPD admitted that they were looking for a reason to stop the car, and so spotted the usual defective left brake light. After the stop, and the detention, the car was searched and a weapon found under the passenger seat. The gov't admitted that the detention was illegal and so the subsequent statements were suppressed. The court also suppressed the gun as "fruit of the poisonous tree." The 9th (Wallace) reversed, holding that the passenger/defendant had no standing as to the car stop, and would only have standing if he sought to leave in the car but was detained. The 9th looked at Rakas and drew fine distinctions between having a possessory interest in the car and being just a passenger. In a compelling dissent, Wardlaw take s the majority to task for ignoring the 9th's precedent that treated the car, driver and passenger as the same continuum for "fruit" analysis. Wardlaw chides the majority for mixing up the apples of 4th amend. standing with the oranges of "fruit." Wardlaw further argues that there is no principled reason to distinguish between a situation involving an illegal stop, in which case a passenger can suppress, from a situation involving a legal stop but illegal detention.

Search & Seizure Update

For the past decade, the Oregon Federal Public Defender has published an outline of federal search and seizure cases from a defense perspective. We set out the general state of the law and, through counterpoints to the cases restricting Fourth Amendment rights, keep track of cases in which defendants have succeeded in suppressing evidence based on creative use of facts and law. The point of the outline is to provide a starting place for research, a repository for cases that frequently are useful, and an optimistic approach to Fourth Amendment issues. The most recent update, prepared for the Las Vegas office’s CJA meeting last week, is available here.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

US v. Nava

No. 03-30010 (4-18-05). This is a forfeiture matter, inwhich the 9th (Bybee) holds forfeiture of property was improper because thedefendant didn't own them; his daughter did. The 9th found that the focuswas on who owned the property, and that the gov't couldn't peek behind thesales to see if the defendant controlled them. Rymer, in dissent, arguesthat the gov't and court could.

US v. Zone

No. 03-10361 (4-18-05). The Zone defense was that the fedscontrolled a state prosecution for a weapons misconduct conviction thatcould later be used against him in a felon-in-possession charge. This,alleges Zone in this interlocutory appeal, violates double jeopardy. TheSupremes have held, in Barkus v. Illinois, 359 US 121 (1959) that if thestate becomes a mere tool of the feds in prosecuting, then the sham mightlead to a double jeopardy violation. In reaching such a violation, thefeds would have to control, direct, and make the decisions for the state.This is a high burden. So, although the 9th found that it had jurisdictionfor this appeal, and that it could decide a discovery issue related to it,the defendant had not made a prima facie case to trigger discovery on fedinvolvement. basically, the defendant had pointed to public statementsabout a joint task force. Wallace, concurring, would not have foundinterlocutory jurisdiction over the discovery request. Although the defendant lost here, there are some good points. First, thischallenge can be heard interlocutorily. Second, discovery can be part ofthe remedy. Third, federal involvement to such an extent that the state ismerely a sham can implicate double jeopardy. This last point is especiallysignificant in Indian cases, where tribal police usually defer to the FBIand in joint task forces where the feds are basically the show (on theborder?).

US v. Cortez-Arias

The 9th ventures into the2L1.2(b) definitional thicket in deciding whether a state conviction forshooting at an inhabited dwelling is an aggravated felony. The 9thdisagreed with the district court's reasoning but affirmed the outcome thattaking shots at a house is a crime of violence. The district court hadreached that conclusion by looking at the guideline's definition of crimeof violence in 4B1.2, which is a career offender section. In Weinert , 1F.3d 889 (9th Cir. 1993)(per curiam), the 9th held that shooting at aninhabited dwelling, even with no one in it, could be a crime of violenceunder the career offender provision because it might present a serious riskof force against another. Here, in the 2L1.2 definition, the threat ofviolence was not in the serious risk of force, but in the actual threat byhaving a house riddled with bullet holes, and thus was physical forceagainst another.

Case o' The Week: Biwot & Right to Counsel in Removal Proceedings

This important win in the difficult immigration context affirms an alien's right to counsel in removal proceedings. Strong language in the decision will also help in Section 1326 (illegal reentry) challenges. Biwot v. Gonzales, __ F.3d __, 2005 WL 851219 (9th Cir. April 14, 2005) is available here.


Players: A great decision by Judge Margaret McKeown. Important pro bono litigation by Heller Ehrman associate Ryan McBride.

Facts: Jona Biwot was a Kenyan in the US on a student visa. A dorm brawl lead to his conviction for third degree assault. The INS charged him with failing to maintain his student status. Id. at *1. At the removal hearing, the Immigration Judge ("I.J.") gave him five days to get counsel – one of which was a national holiday (ironically, July 4th), and two of which were the weekend. He went back to the IJ, asked for time to get counsel, and got a very brief continuance. When, despite good faith efforts, Biwot didn’t have counsel at that hearing the IJ forced him to speak for himself and found him removable; Biwot waived review "because I cannot do anything right now." Id. at *2.

Issue(s): "The issue we address is whether Biwot was denied his right to counsel when the . . . IJ allowed Biwot, who was incarcerated and diligently seeking representation, only five working days to obtain counsel." Id. at *1.

Held: "We conclude that Biwot was denied his statutory right to counsel and, accordingly, we grant the petition in part and remand to the BIA with instructions to remand to the IJ." Id. at *1.

Of Note: Biwot is replete with bon mots to use in § 1326 (illegal reentry) challenges. McKeown digs back a half century for Supreme Court authority to bolster her broad language recognizing the right to counsel in deportation proceedings. Id. at *3. As she correctly explains, "The proliferation of immigration laws and regulations has aptly been called a labyrinth that only a lawyer could navigate." Id. The case also refuses to set forth a bright-line test on what constitutes "reasonable time" to obtain counsel – instead emphasizing a number of equitable factors. Id. Finally, the case has wonderful "waiver of review" analysis – the Court recognizes that without counsel that waiver may be meaningless: "Although IJs may not be required to undertake Herculean efforts to afford the right to counsel, at a minimum they must inquire whether the petitioner wishes counsel, determine a reasonable time for obtaining counsel, and assess whether any waiver of counsel is knowing and voluntary." Id. at *5.

How to Use: Obviously, in a § 1326 where an alien had some claim for relief and was not given a fair chance to obtain counsel, Biwot will be a critical decision. Note the decision’s favorable discussion of Rios-Berrios, where an alien’s transfer to a distant district hampered his attempt to obtain counsel. Id. *3. Less obviously, Biwot feeds in beautifully to the Morales-Izquierdo challenges that we’ve been bringing in § 1326 cases involving reinstatement of deportations– the decision suggests a trend in the Ninth towards increased due process protections for aliens in immigration proceedings. See blog in archives here. Finally, we have discussed defense challenges to the horrific INA § 238 proceedings, (8 USC § 1228(b)) –"administrative orders" – where agg felons can be repeatedly deported without ever having seen an IJ. Biwot has wonderful language to fuel that challenge.

For Further Reading: This is a righteous win for Heller Ehrman associate Ryan McBride. See bio here. Ryan is an antitrust lawyer who took this case pro bono. Law firm partners who wonder if their pro bono commitment is worth the expense should read Biwot. This decision will have a broad impact for hundreds of aliens fighting removal, but will also help many criminal defendants fighting illegal reentry charges. Moreover, aliens fighting deportation may be the most poorly-represented class of litigants in the U.S.; few can afford counsel, and free immigration services are swamped with requests. Heller’s willingness to take this case, and Ryan’s hard-fought win, deserve thanks from the defense bar.

Steven Kalar, Senior Litigator ND Cal Federal Public Defender, website available here.

Washington: Booker plus Shepard equals no enhancement under firearms guideline

Good news from an unusual source: the Fourth Circuit. In Washington, the court applied Booker and Shepard to enhancement of the firearms guideline based on prior convictions (U.S.S.G. §§ 2K2.1(a)(4) and 4B1.2(a)(2)). The court found that, in the absence of the judicially noticeable facts listed in Shepard, a prior conviction could not be considered a "crime of violence." This issue was discussed in the Shepard: where do we go from here? blog.

The firearms guideline includes drastic increases in offense level based on prior convictions – already counted in reaching the criminal history category – that are a "crime of violence" or a "drug trafficking offense" as defined in the career offender guideline. Mr. Washington faced sentencing for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The trial court enhanced his sentence based on a prior conviction for breaking and entering, even though the statute did not categorically describe a "crime of violence." At the sentencing hearing, the trial judge received additional information regarding the circumstances of the offense, leading to findings by a preponderance of the evidence regarding factors the court found sufficient to qualify the offense as presenting "a serious potential risk of physical injury to another." Because no Sixth Amendment claim was raised below, the Fourth Circuit reviewed for plain error.

The majority opinion (available here) held that the cumulative effect of Booker and Shepard is to foreclose the enhancement. The "fact of a prior conviction" exception to the jury trial requirement, with its questionable roots in Almendarez-Torres (see earlier blog here), rested on two assumptions: the certainty that procedural safeguards applied to any relevant "fact" necessary to the conviction; and the absence of any challenge to the accuracy of the relevant fact in Almendarez-Torres. In Shepard, consideration of material beyond jury instructions, bench trial findings, and admissions during guilty plea colloquies created Sixth Amendment issues that must be avoided – by not permitting their consideration as a matter of statutory interpretation.

The Washington court takes the logical step to the Sixth Amendment. Because the trial judge’s inquiry went beyond the facts of the guilty plea, "Washington’s sentence was imposed in violation of his Sixth Amendment rights." The extra-record facts went beyond the face of the indictment and included hypothetical facts based on the type of structure involved (a drug task force building). Washington controverted underlying facts as well as the ultimate conclusion that the prior conviction was a crime of violence. Because the error was plain, the court vacated and remanded "for such other and further proceedings as may be appropriate." Judge Luttig dissented.

Congratulations to the defense team out of the Charleston, West Virginia, office of the Federal Public Defender.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Castellini: BOP enjoined from terminating boot camp

Judge Saris in the District of Massachutses has entered a preliminary injunction prohibiting the Bureau of Prisons from terminating the boot camp program.

In 1990, Congress created the boot camp program, also known as the Shock Incarceration Program, codified at 18 U.S.C. § 4046. The Sentencing Commission promulgated U.S.S.G. § 5F1.7 the following year, giving sentencing judges discretion to recommend placement in boot camp. To qualify, the defendant must be serving a relatively short sentence for a non-violent offense and have no more than a minor criminal history. Under the BOP’s regulations, qualified prisoners can receive up to six months of sentence reduction and extended home confinement after serving six months of the term of imprisonment in a regimented, military-style facility and a follow-up period in a halfway house.

The boot camp program has been a significant benefit for many Federal Defender clients, not only reducing time of actual incarceration, but promoting positive social skills and outlook in aid of rehabilitation. Then, on January 14, 2005, without any warning or notice, the BOP unilaterally announced -- in a memorandum to judges, prosecutors, and defenders -- that the program was being terminated.

Richard Castillini received a 21-month sentence with a judicial recommendation for boot camp placement. After the BOP announced termination of the program, he filed a civil action in Massachutses requesting a preliminary injunction based on violation of the statute, violation of the notice-and-comment provisions of the Administrative Procedure Act, and violation of the Ex Post Facto Clause. Judge Saris granted relief based on the latter two theories in the opinion, which is available here.

Defenders need to be aware that, at least for those whose offense conduct precedes compliance with the APA, relief is available. However, there are several layers of additional arguments that should foreclose termination of the program in the absence of Congressional action.

First, by analogy to line-item veto legislation, the agency action violates the separation of powers. In Clinton, the Court held that, once legislation is enacted, the Executive Branch is not entitled to repeal the law as promulgated by the Legislative Branch. The BOP does not have authority under Article I, Section 7, to, in effect, repeal the boot camp statute.

Second, the statute does not authorize termination of the program. The BOP’s discretion is limited to determination of who is placed in the program and how it operates, but does not include express authority to end the program altogether. The Castellini court found that the statute permitted termination, based on Lincoln v. Vigil, a case involving allocation of Indian health care funds among several programs. This part of the opinion conflicts with the Supreme Court’s suggestion in a Bureau of Prisons case that, where agency action forecloses any exercise of discretion, the agency would "be making a nullity of the statute." Lopez v. Davis (footnote 4)(citing INS v. Yueh-Shaio Yang); see also United States v. Miller, 722 F.2d 562 (9th Cir. 1983) ("The existence of discretion requires its exercise") (citing Dorszynski v. United States). At the very least, the doctrine of constitutional avoidance would require the statute to be construed in a manner that did not create the separation of powers problem (Clark v. Martinez).

Third, even at the second prong of Chevron deference, the termination of the program is unreasonable. The agency claimed the boot camp program was ineffective and too expensive. The BOP cited studies that are irrelevant because they evaluate state programs that do not have the screening, incentives, and follow-up the federal program has; the BOP also ignored studies demonstrating the federal program in fact saves money and results in slightly lower recidivism.

These arguments are elaborated in the memorandum in support of relief from the termination of boot camp in a case pending in the District of Oregon, available here. If you have clients adversely affected by the boot camp termination and need to commence litigation, contact Lynn Deffebach at the Oregon Federal Public Defender office for documents and consultation.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

US v. Gunning

No. 04-30104 (3-31-05). Lets try to get it right this time, says the 9th. This appeal is up again. The defendant was convicted of wire fraud. The first time, the district court failed to specify a restitution schedule for the defendant, leaving it up to Probation. The 9th held that the court had to set the schedule and sent it back. At resentencing, the court set a restitution schedule for supervised release (10% of gross income), but none for the time the defendant was in BOP custody. This was error: the court has to set some parameters or guidelines. The 9th also found error in the district court failing to allow for allocution. The sentencing happened so fast that the defendant didn't have a chance to say anything until after the court sentenced and it was too late. The govt's argument that the limited mandate (restitution schedule) or the fact the defendant did ask for family considerations (but after the sentencing) didn't excuse the lack of allocution. This case has a good overview of allocution law and how it is always prejudicial not to afford allocution when there is any discretion. The 9th stressed that it was remanding for resentencing. It appears, therefore, that Booker will come into play now (although the defendant is getting close to the end of his 57 mos. sentence).
This is a Fernandez opinion. As such, the "unusual or extraordinary" words outside the "heartland" of the usual opinion are "expatiate" and "recrudescent".

Case o' The Week: Musladin and "outside influences" at trial

ND Cal AFPD David Fermino earns a great habeas victory in Musladin v. Larmarque, __ F.3d __, 2005 WL 797565 (9th Cir. April 8, 2005), available here. In Musladin, Judge Reinhardt grants the writ when a defendant convicted of murder is tried while the "victim's" family is in the front row of the gallery, wearing photos of the deceased. The case is of particular interest for its discussion of "inherent prejudice" in this setting.

Players: ND Cal. AFPD David Fermino and R&W Attorney Chris Miles, with a great win on a serious case.

Facts: Musladin was charged and convicted after trial in California state court for the first degree murder of his estranged wife’s fiancé. 2005 WL 797565, *1. There was no dispute that Musladin hit the victim with a ricochet shot, although Musladin claimed perfect and imperfect self-defense. Id. During the trial the "victim’s" family sat in the front row of the gallery – behind the prosecution – and, on each day, at least three family members wore large buttons with noticeable pictures of the "victim." Id. The judge permitted the family to wear the buttons over defense objection. Id.

Issue(s): "In order to determine whether Musladin is entitled to federal habeas relief, we must therefore assess whether the buttons depicting [the victim] worn by spectators at the trial posed a risk of impermissible factors coming into play that is similar to those previously found to exist in other circumstances, such as in compelling a criminal defendant to wear prison garb and shackles before the jury, see Estelle v. Williams, 425 U.S. 501 (1976), and in permitting spectators at a rape trial to wear anti-rape buttons, see Norris v. Risley, 918 F.2d 828 (9th Cir.1990)." Id. at *3.

Held: "Because we conclude that no significant difference exists between the circumstances of this case and the "unacceptable risks" found to exist in Williams and Norris, we hold that the state court unreasonably applied established Supreme Court law in denying Musladin relief." Id. at *3.

Of Note: In dismissing the analysis of the state court, the Ninth Circuit articulated a favorable approach towards determining whether a defendant is prejudiced by the introduction of external factors (such as buttons or signs):

"The Supreme Court announced in Williams and Flynn that following a finding of an unacceptable risk of impermissible factors coming into play, no further showing is necessary because the practice is then deemed "inherently prejudicial." Here, the state court flouted that rule: it required that the challenged practice not only constitute an unacceptable risk of an impermissible factor coming into play but also that it "brand" the defendant with an "unmistakable mark of guilt." This additional test imposes too high and too unreasonable a burden on defendants and is contrary to established Supreme Court law." Id. at *6 (emphasis added).

Aside: Note that in the opinion Reinhardt places the word "victim" in quotations, in explicit deference to Musladin’s self-defense theory. Id. at *1. Would that we had this type of objectivity in every case.

How to Use: The Court articulates a favorable approach for Williams-Flynn issues where "outside influences" threatens a fair trial – if the outside influence creates an "unacceptable risk of impermissible factors coming into play," there is inherent prejudice. Moreover, even if that isn’t the case, a defendant can still try to show actual prejudice. Look to the gallery to spot Williams-Flynn issues: victims’ families with buttons, many cops in uniforms, and potentially banners and signs of protestors outside the courthouse.

For Further Reading: Fermino’s case has received national notoriety. See NY Times article here. District Attorney Ray Mendoza, who prosecuted Musladin in 1995, is already threatening to try the defendant again. See Monterey Herald article here.

Steven Kalar, Senior Litigator ND Cal FPD, website available here.

Case o' The Week: Gunning for Ameline III

This otherwise insignificant little opinion may have a big impact on Booker remands and the pending Ameline III en banc decision. See United States v. Gunning, __ F.3d __, 2005 WL 2005 WL 730298 (9th Cir. Mar. 31, 2005), available here. The decision has an interesting discussion on allocution, resentencing on remand, and "plain error" review.

Players: Judge Fernandez’s thesaurus, District Court Judge Jack E. Tanner.

Facts: Stephen Gunning was convicted of wire fraud, appealed, the Ninth reversed, he was remanded and resentenced, appealed again, and won again. Gunning, 2005 WL 2005 WL 730298 at *1. After the original remand, the district court did not permit full allocution before sentencing. Id. The district court also did not specify a restitution repayment schedule, but delegated that task to the BOP. Id.

Issue(s): (1) Does a defendant have the right to full allocution at sentencing, if the remand isn’t specifically limited? (2) Can a district court delegate setting a restitution repayment schedule, to Probation or the BOP? Id.

Held: (1) "We have some sympathy for the government’s argument that the failure to accord Gunning his allocution right was harmless in this case. However, our precedents are quite clear: when a district court could have lowered a defendant’s sentence, we have presumed prejudice and remanded, even if we doubted that the district court would have done so . . . Thus, we must remand." Id. at *3 (emphasis in original) (citations omitted).

(2) "[T]he district court simply does not have the authority to delegate it own [restitution] scheduling duties – not to the probation office, not to the BOP, not to anyone else." Id. at *4.

Of Note: Steve Hubachek and Tony Gallagher have recently done a great job in arguing Ameline III – the Ninth Circuit en banc case on Booker remands. Oral argument available here. Gunning’s broad language on the need for full allocution without a showing of prejudice undercuts the en banc panel’s infatuation with the "quick look" approach for Booker remands – a procedure whereby the district court opines on whether Booker would affect the sentence, and does so in the absence of the defendant.

The Gunning opinion has good, broad language about general remands for resentencing that will be useful for the Booker remands that will be soon hitting the district courts. Id. at *2-*3. It also is noteworthy that, although there was no objection about the lack of allocution in the district court, this oddly does not seem to be a plain error review case. Id. at *3 n.6. Judge Fernandez speculates that this may be because the error is "so plainly plain that it falls within the category of errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice." Id. (quotation and citation omitted). This possible category of plain error review was discussed at length in the Ameline III en banc, and Gunning may bear on that ultimate decision.

How to Use: As noted above, Gunning could be an important case for the Ameline III en banc case and for Booker remands. The case is also interesting for its insistence that the district court – not Probation or the BOP – sets the restitution repayment schedule. Given the unholy alliance between Probation and FLU (the Financial Litigation Unit of the USAO), a sympathetic judge may often set a more-humane schedule than that dictated by a P.O. Use Gunning with a factual showing of the client’s indigency to get a favorable restitution payment schedule set at sentencing.

For Further Reading: Fernandez writes, "When this case was previously before us, we had occasion to expatiate on the meaning of that language . . . ." Id. at *4. For those, like me, who don’t know what that means:

expatiate \ik-SPAY-shee-ayt\, verb: 1. To speak or write at
some length; to be copious in argument or discussion; to enlarge. 2. To range at large, or without restraint. See full definition here.

Steven Kalar, Senior Litigator ND Cal FPD, website available here.