US v. Cassel

No. 03-10683 (5-24-05). Defendant owned a parcel of land that adjoined BLM land. BLM decided to sell its parcels. When bidders came to inspect the parcel, defendant met them with "an incredibly ugly dog," that was "aggressive" because it had been hit by a car, and told the prospective bidders that the site was a toxic dump, that murderers and child molesters lived nearby, that witches were present, and that bad things would happen should they live there. Unsurprisingly, the bidders generally shied away. The gov't charged and convicted defendant of interfering a federal land sale under 18 USC 1860 (interfering with a land sale ) and witness tampering. The 9th vacated and remanded because interfering with a land sale required the speech that threatened to have been intended. That is, there must be specific intent and the jury instructions here failed to state that element, and it wasn't harmless. The 9th did uphold the statute against a constitutionally vague challenge and for protected speech. The 9th found that not all speech, especially threats, are protected, and this statute was not vague.

Lara-Cazares v. Gonzales

No. 03-71568 (5-23-05). The 9th finds that a state (California) conviction for gross vehicular manslaughter while intoxicated was not a crime of violence under 18 USC 16 and therefore not an agg felony.. The 9th looked to Leocal, where the Supremes held that a DUI causing serious bodily injury was a negligence mens rea, and the reasoning there applied here. The gov't's argument that gross negligence was different was unavailing as Congress distinguished between a serious criminal offense (a DUI that caused injury) and a crime of violence. Leocal overruled prior 9th Cir precedent.

US v. Wyatt

No. 04-30316 (5-26-05). Defendant protested logging in a national forest. He and a codefendant are members of Earth First! and staged a protest that involved staying in the trees designated for logging for several weeks. The defendant also strung yellow and blue polypropylene ropes between platforms and from trees. These represented a threat to helicopters because of the danger of the ropes becoming intertwined in the rotors. The defendant was charged and convicted of 18 USC 1864(a) which makes an offense of using hazardous or injurious devices to interfere with harvesting timber. defendant mounted an attack on the offense for vagueness (what was dangerous about ropes). The 9th found though that the defendants had enough rope to legally hang themselves because the language of the statute applies to ropes, the defendants could guess it, and indeed intended it. There statute gives fair warning.

US v. Arevalo

No. 02-50289 (5-26-05). Defendant was convicted of RICO and conspiracy and acquitted of a score of others. The district court increased his base offense level from 19 to 46 (yes, 46) because of numerous murders that were related. the court however "only" sentenced defendant to 240 mos., the stat max. Defendant timely appealed. He then, with advice of counsel, voluntarily dismissed his appeal. Seven months later, after Blakely and Ameline, appellant moved to reinstate his appeal. The 9th found that it had no jurisdiction. The motion to reinstate should be treated as a new notice of appeal, and this one was out of time. There were policy issues about why reinstating was bad, including an end run around the 10 day rule. The 9th took note of some curiosities in Fed R App Proc 4, which allows the district court to extend time, but is silent about the appellate court. There is also nothing about reinstating. Those issues are left for another day. Perhaps it didn't help defendant's case that he was "aka" as "Psycho."

Case o' the Week: A good "Cassel" decision? (Yes, but not out of Utah)

In a rare positive development for scienter in criminal law, the Ninth Circuit reads a mens rea requirement into a federal threats case. United States v. Cassel, __ F.3d. __, 2005 WL 1217387 (9th Cir. May 24, 2005), available here.


Players: "Mr. Mooch Face," who was "extremely ugly" and "had once been run over by a car." Cassel, __ F.3d. __, 2005 WL 1217387, *1.

Facts: Paul Cassel lived with his girlfriend on her property in the Mojave desert. Id. The Bureau of Land Management wanted to sell adjacent lots, but Cassel was unhappy to have new neighbors. He warned the first prospective buyer that the area was filled with child molesters, murders, producers of illegal drugs, devil-worshipers, and witches, and described local mine explosions and cyanide contamination. Id. Cassel allegedly told the second potential buyer that anything built on the adjacent lot would "definitely burn," and would be "stolen, vandalized – he would see to that." Id. The defendant was convicted of making threats to discourage a federal land sale, in violation of 18 USC § 1860. Id. at *2.

Issue(s): "Whether intent to threaten the victim [in Section 1860] is required in order for speech to fall within the First Amendment exception for threats." Id. at *3.

Held: "We are therefore bound to conclude that speech may be deemed unprotected by the First Amendment as a ‘true threat’ only upon proof that the speaker subjectively intended the speech as a threat." Id. at *9. "Having held that intent to threaten is a constitutionally necessary element of a statute punishing threats, we do not hesitate to construe 18 USC § 1860 to require such intent." Id. at *10.

Of Note: This thoughtful opinion concedes the confusion in the Ninth over whether there was a "subjective intent" mens rea in the federal threat statute. Notably, the panel, lead by O’Scannlain, holds that the instructions in Cassel’s case were insufficient because they did not require proof of the defendant’s subjective intent, or that the threat created fear or apprehension that the threat would be carried out by the defendant. Id. at *10-*12.

How to Use: Cassel will be an important decision for any federal threats case; existing sample jury instructions will have to be revised in light of the opinion’s holdings. Note that the Ninth holds that the Supreme Court has required (in Virginia v. Black, 538 U.S. 343 (2003)), that "intent to intimidate is necessary and that the government must prove it in order to secure a conviction." Id. at *9. Thus, Cassel’s view of the First Amendment requirements will have ramifications for threat cases far outside of the confines of Section 1860.

Cassel is also one of the few good cases of late on scienter, with excellent language on the statutory construction requirement to read mens rea into criminal statutes. Id. at *9. As the Court explains, "Thus, except in unusual circumstances, we construe a criminal statute to include a mens rea element even when none appears on the face of the statute." Id. Granted, this liberal reading is to avoid finding the statute unconstitutional, but who are we to question the Court’s motives when it gives us favorable law? (Compare this decision’s mens rea analysis with the horrible scienter discussion in another recent case, United States v. Rosemary Houston, __ F.3d __, 2005 WL 1076091 (9th Cir. May 9, 2005), available here.).

For Further Reading: If the Supreme Court issues intervening authority, can a three-judge panel follow that decision despite contrary Ninth Circuit authority? Yes, says Cassel, citing the intriguing case of Miller v. Gambie, 335 F.3d 889, 899 (9th Cir. 2003). This principle is important in our Apprendi/Booker/Shephard litigation – AFPD Steve Sady has seized on the Miller case in articulating these arguments. See Sady blog here.

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

Case o' The Week: Martinez & the "Emergency Exception" to the Warrant Requirement

The Ninth endorses yet another exception to the Fourth Amendment warrant requirement in United States v. Monroe Martinez, __ F.3d __,2005 WL 1139939 (9th Cir. May 16, 2005), available here. In Martinez, the Court upheld a warrantless search in a D.V. case -- although the alleged victim was safe, uninjured, and outside the house searched.

Players: Disappointing, though not particularly surprising, decision by Judge Sidney Thomas.

Facts: A cop was sent to a home in response to an interrupted 911 domestic violence call. 2005 WL 1139939, *1. He had been there before, and recalled a woman had had a "fat lip" because she had been hit by a male. Id. When the cop got there, a woman was crying but uninjured in the front yard. Id. He heard someone yelling inside the house. Id. The cop entered, not suspecting that he would find evidence in the house. A boy inside lead the cop to the defendant – when the cop and defendant returned to the living room, there were two rifles and a shotgun in plain view. Id. A felon, the defendant was charged federally with §§ 922(g)(1) and 924(a)(2), moved to suppress the warrantless search, and ultimately appealed the denial of his motion. Id.

Issue(s): Because there was no exigency to justify this warrantless search, was the search unlawful?

Held: No, the search was lawful. The "exigency doctrine is inapplicable because the officer did not believe that evidence of a crime would be found inside the house." Id. at *2. "Although the exigency doctrine does not provide a constitutional basis for the warrantless entry in this case, the emergency doctrine provides justification. The emergency doctrine provides that if a police office, while investigating within the scope necessary to respond to an emergency, discovers evidence of illegal activity, that evidence is admissible even if there was not probable cause to believe that such evidence would have been found." Id. (internal quotation and citations omitted).

Of Note: The Court also rejected a Miranda challenge, on that theory that officers, "when reasonably prompted by a concern for the public safety, to engage in limited questioning of suspects about weapons in potentially violent situations." Id. at *4(internal quotation and citation omitted). Here, the Court found, the officer "was entitled to make inquiries about the weapons under the Quarles public safety exception to Miranda." Id.

How to Use: This domestic violence case presented tough facts for the defense, but note the three-part limiting test for the "emergency exception" may preclude its use in other cases. Id. at *3 ("(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property, (2) The search must not be primarily motivated by intent to arrest and seize evidence, and (3) There must be some reasonable basis approximating probable cause, to associate the emergency with the area or place to be searched.") (internal quotation and citation omitted).

For example, too much attenuation between the place searched and the emergency will vitiate the exception. Id., citing United States v. Deemer, 354 F.3d 1130, 1132-33 (9th Cir. 2004).

For Further Reading: Ironically, there is an interesting and useful little article discussing the emergency exception and the non-existent "murder scene" warrant exception on the Federal Law Enforcement Training Center web page. See Bryon Lemmons, A Murder Scene Exception to the Fourth Amendment Warrant Requirement?, available here. The article is worth a read, to understand how the"emergency exception" does not automatically kick in during investigations involving violence.

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

US v. Martinez

No. 04-30098 (5-16-05). The 9th finds that an officer can enter a house without a warrant under an emergency exception. Here, the officer was dispatched pursuant to a 911 call for a domestic disturbance. He arrived at the apartment complex, and recognized the female as having been abused in the past. She was huddled on the lawn, crying and shaking. The officer heard screams and yells from inside the unit, and he was concerned that the person was hurting himself or someone else. The officer went in, and found the defendant reaching under the bed. Concerned, the officer had him go to the living room, where the officer noted a couple of shotguns on the coach. The defendant said that eh was trying to get rid of them. It turned out that he had a felony and was on probation. The 9th had little trouble finding that an emergency exception was appropriate in this case, especially under the circumstances.

US v. Brailey

No. 04-30083 (5-19-05). The 9th finds that a state (Utah) that restores the right to possess and use firearms for misdemeanors cannot trump the federal statute that bars such use if the prior misdemeanor was a domestic violence offense. The 9th joins the majority of circuits that have so ruled, and disagrees with the 6th that reasons that the state policy of not stripping civil rights makes an exception.

US v. Nobriga

No. 04-10169 (5-20-05). Defendant was convicted of possessing a firearm after having been convicted of a misdemeanor crime of domestic violence. Defendant argued that the charge should have been dismissed because the victim of the offense was a "former girlfriend." The 9th agreed, because a "former girlfriend" did not fit the federal definitions of a current or former spouse, parent, guardian of the victim, a person who is cohabitation or has cohabited with the victim etc. A former girlfriend didn't cut it.

Ngo & Nobriga: two critical pieces of the post-Shepard jigsaw puzzle

Two new circuit court cases provide critical pieces of the post-Shepard logic that requires re-interpretation of the Armed Career Criminal Act and Section 922(g). In each case, the courts take important steps into the post-Shepard world we have been predicting. In Ngo, by reversing a career offender enhancement based on failure to establish the facts necessary to show priors were not "related cases", the Seventh Circuit shows the way for re-interpretation of the ACCA to require pleading and proof that the priors were committed "on occasions different from one another." In Nobrigo, in dismissing an indictment for gun possession after a domestic misdemeanor conviction, the Ninth Circuit provides guidance on foreclosing use of priors under the ACCA and Section 922(g) where the necessary characteristics of the prior conviction are not established in the Shepard-proof record. And these are both plain error cases.

Every Statute That Increases Maximum Punishment Based On A Prior Conviction Must Be Reassessed In Light Of Apprendi, Blakely, and Shepard.

Let’s catch up for a minute. We have been claiming that Almendarez-Torres, which provides the basis for Apprendi’s prior conviction exception, is a dead letter and that the definitions of priors are sharply limited to characteristics apparent from the face of the convictions (in blogs available here and here and here). Short of outright reversal, Almendarez-Torres has been completely marginalized: almost every Justice has agreed that application or extension of the case implicates the doctrine of constitutional avoidance; Apprendi narrowly limited Almendarez-Torres to its unique facts and circumstances; and Shepard requires that the qualifying characteristics be proven at the prior trial or admitted in the plea colloquy. In a parallel development, the definition of maximum sentence throughout the firearms statutes must be reassessed in light of Blakely (as set out here). Given the Ninth Circuit’s en banc opinion in Miller, every district court should be re-examining statutes free of barriers created by precedent because the Miller court limited the effect of precedent where intervening Supreme Court cases undermined the reasoning or "mode of analysis" of the earlier cases.

The advocacy positions, short of directly overruling Almendarez-Torres, can be summarized as follows:

1) If the statutory maximum is increased based on a prior conviction, the statute must be re-interpreted to require pleading and proof beyond a reasonable doubt to save it from reliance on Almendarez-Torrez under the doctrine of constitutional avoidance.

2) If the prior conviction requires predicate facts beyond the actual conviction (characteristics such as violence, drug trafficking, maximum punishment, extra-conviction factors required to be an "aggravated felony"), those characteristics must be pleaded and proved both because Apprendi does not permit extension of Almendarez-Torres beyond the fact of conviction and because Shepard requires the statute be construed to avoid the constitutional question.

3) If the statute defers to state law in defining the prior conviction, the Blakely maximum provides the definition for determining whether a prior guidelines conviction is "punishable by imprisonment for a term exceeding one year" (§922(g) & §924(e)(B)) and whether a "serious drug offense" is involved because a "maximum term of imprisonment of ten years or more is prescribed by law" (§924(e)(2)(A)(ii)).

In this context, Ngo and Nobriga provide key pieces establishing that the ACCA and Section 922(g) must be re-interpreted to require pleading and proof of the qualifying characteristics of predicate convictions.

Ngo Is To "Common Scheme Or Plan" As [Blank] Is To "Occasions Different From One Another."

After being convicted for meth trafficking, Tek Ngo received a career offender sentence based on two prior robberies. On appeal, he claimed that the district court’s fact findings on "related cases" under Application Note 3 of U.S.S.G. §4A1.2 - in the post-Blakely, pre-Booker world - violated the Sixth Amendment. In an opinion available here, the Seventh Circuit rejected his argument that the "consolidated for sentencing" factor went beyond the face of Shepard-approved documentation, but agreed that, after Shepard, the question whether prior convictions were not "part of a common scheme or plan" was a jury question under Blakely. In footnote 1, the court noted that the Shepard problem with career offender will not arise in the future because of Booker’s remedial opinion.

Ngo should live on because it directly supports application of Shepard to other aspects of the ACCA, most obviously the statutory requirement that the three convictions "occurred on occasions different from one another." The Ngo opinion provides strong support for each step of the analysis. First, the court cited directly to its precedent on the ACCA and noted that precedent that rejected "parsing out" the ACCA’s "separate occasions" requirement appeared to have been superseded by Shepard. Second, in light of Shepard, the court determined that the Almendarez-Torrez exception "is quite narrow" and exempts only findings traceable to a prior judicial record of "conclusive significance." Lastly, because the "common scheme or plan" inquiry required resort to information beyond the "conclusive significance" of the judicial record, the judicial fact-finding violated Mr. Ngo’s Sixth Amendment right to jury trial.

These steps are all critical to expansion of Shepard in the context of ACCA, §922(g), and §1326. There is also a residual argument that career offender priors must be pleaded and proved even after Booker. Career offender results in drastic increases in offense level that often implicate the reasonableness of the ultimate sentence within the statutory maximum (e.g., the addict with two probationary dispositions for single dose distributions who, upon sharing a line, is now facing close to twenty years). Unlike most guideline enhancements, career offender has its direct roots in statute (28 U.S.C. §994(h)), which may be subject to a constitutional avoidance construction requiring pleading and proof complying with the Sixth Amendment. Such issues would have to be raised by Mr. Ngo for the first time on remand.

Nobriga Provides Guidance On Application Of Shepard And Blakely.

Fred Nobriga pleaded guilty to possession of a firearm by a person convicted of a misdemeanor crime of domestic violence, preserving appeal of a motion to dismiss. The federal statute, 18 U.S.C. §921(a)(33)(A)(ii), includes the specific components required for the conviction to qualify. In an opinion available here, the Ninth Circuit rejected the categorical issue preserved by Mr. Nobriga because the non-generic conviction could qualify under the modified-Taylor analysis of judicial documents. But the heart of the case was whether the victim of the offense had the domestic relationship to Mr. Nobriga required by §921(a)(33)(A)(ii).

The Ninth Circuit carefully analyzed the terms of the Hawaii misdemeanor statute. The definition of the potential victim included a class beyond the scope of the federal definition - roommates without a more personal relationship. The indictment did not pinpoint the relationship and, in footnote 3, the court noted that Shepard precluded consideration of the police reports. But the federal guilty plea included a statement that the victim was a "former girlfriend."

First, the court found in footnote 4 that the admission during the federal plea was not pertinent to the Taylor/Shepard analysis. However, the court noted that the statement might be relevant as an affirmative waiver of Shepard-based arguments. The court stated that the issue need not be decided because of its ultimate ruling that "former girlfriend" did not meet the statutory criteria for a federal domestic victim.

Second, the court parsed the four categories of federal domestic violence victims. Three sections require a current relationship, a formal relationship, or a child in common. The last possibility - cohabitated with the person as a spouse - simply was not established by the admission that the victim was a "former girlfriend." And nothing in the state statute necessarily filled in the missing cohabitation requirement because the Hawaii statute stated the roommate and relationship statuses in the alternative. The indictment had to be dismissed under plain error doctrine because the relationship established in the state conviction did not fall into any of the four categories in the federal statute.

Federal defenders have been asserting the inexorable logic of Apprendi, Blakely, and Shepard in arguing for additional procedural protections in firearms and other statutes in which prior convictions with certain characteristics increase the statutory maximum. Ngo and Nobriga accept and develop major premises of those arguments, which we need to make to contest application of some of the most irrationally severe sentencing provisions to our clients.

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

Kwan: an approach to erroneous immigration advice in criminal cases

The dirty secret is that many criminal defense practitioners who routinely represent aliens fear and misunderstand immigration law. As a consequence, alien defendants, with little or no understanding, are sometimes convicted on relatively minor charges that have negligible short-term but disasterous long-term consequences. By the time the alien is in federal court facing an illegal reentry felony, there are often limited legal defenses, despite massive and compelling equities based on long-term residence and close family ties to this country. The Ninth Circuit has issued an important opinion that should spark creative thinking by federal defenders regarding procedural and substantive approaches to prior convictions obtained as a result of prior counsel's bad immigration advice.

In Kwan (available here), the attorney for a Korean defendant negotiated a guilty plea to federal bank fraud. When Mr. Kwan, who was a lawful permanent resident alien with a United States citizen family, inquired regarding immigration consequences, the attorney advised that, although deportation was possible, defenses could be pursued to avoid that consequence. What the attorney failed to note was that, with a sentence greater than one year, the conviction constituted an aggravated felony, which forecloses almost all forms of relief from deportation.

With proper advice, the result could have been different. If there had been a slight adjustment of the plea agreement or the sentence, the conviction would not have resulted in an aggravated felony. After Mr. Kwan completed his 18-month sentence, and well after the statute of limitations for § 2255 motions, the immigration service found the conviction to be an aggravated felony, requiring that Mr. Kwan be deported. Realizing he had received erroneous advice, Mr. Kwan filed a writ of error coram nobis seeking relief from his federal conviction.

The Ninth Circuit first found that the writ was available. Mr. Kwan had established the four predicates for coram nobis relief: 1) no other, more usual remedy was available; 2) he had valid reasons for not raising the issue earlier; 3) he suffered adverse consequences sufficient to establish a case or controversy; and 4) the error implicated fundamental rights. The second factor -- based on discovery of the error -- provides a strong argument, by analogy, that state remedies should still be available to attack state convictions obtained by wrongful advice. "Only after the INS re-initiated removal proceedings against Kwan and determined that his conviction was an aggravated felony...did Kwan have reason to conclude that his criminal defense counsel had in fact erred and affirmatively misled him by advising him that there was 'no serious possibility' that his conviction would cause him to be deported."

On the merits, the court vacated the conviction based on ineffective assistance of counsel. The most useful tool from Kwan is the distinction between failure to advise and misadvice regarding immigration consequences. The Kwan court recognized precedent finding that simple failure to advise does not constitute ineffective assistance of counsel in federal court (Fry). But in this case, Mr. Kwan made specific inquiries regarding immigration consequences. In response, the attorney misled him into believing that deportation was a possibility, not a virtual certainty. That the lawyer acted out of ignorance was no excuse: "Although counsel was a criminal defense attorney and not an immigration attorney, counsel made an affirmative representation to Kwan that he had knowledge and experience regarding the immigration consequences of criminal convictions; as a result, counsel had a professional responsibility to inform himself and his client of significant changes in the law that drastically affected the immigrationn consequences of his client's plea." The court relied heavily on American Bar Association standards: criminal defense attorneys have an obligation to fully advise defendants regarding immigration consequences of conviction such as deportation.

In Oregon, the courts have found a duty to advise regarding immigration consequences. In Gonzalez v. Oregon, a court of appeals case upon which the Oregon Supreme Court has granted review, the court found ineffective assistance of counsel based on misadvice regarding immigration consequences of an aggravated felony. "Because the current immigration scheme all but requires aliens convicted of aggravated felonies to be deported, we conclude that petitioner's trial counsel was obligated to tell petitioner that he was pleading guilty to an aggravated felony and that, unless the United States Attorney General or his designee chose not to pursue deportation proceedings, he would be deported as a result of his guilty plea." Based on Gonzalez, CJA panel attorney Michael Levine prevailed in post-conviction in Washington County, Oregon, in Kishore v. Oregon, a case the state is appealing.

These developments provide bases for creative and aggressive approaches to the heart-breaking cases in which, due to incompetent representation, clients with close family ties to this country are facing substantial prison time, followed by exile. The cases are also a reminder of the importance of providing correct legal advice to criminal defendants regarding immigration consequences, even if that means securing an immigration expert to assist in the representation.

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

Case o' The Week: Houston, we have a problem -- no Section 841 Scienter

Scienter requirements for federal drug case takes another hit in United States v. Houston, __ F.3d __, 2005 WL 1076091 (9th Cir. May 9, 2005), available here. In Houston, the Ninth refuses to impose a "foreseeability" requirement for the mandatory minimums in Section 841, arising from death after distribution. The opinion is also worth a read to survey the general miserable state of mens rea requirements in federal drug prosecutions.

Players: Hard-fought case with a tough, tough panel by Montana AFPD David Ness.

Facts: Tina Bradford was found dead on an Indian reservation. 2005 WL 1076091, *1. Among other controlled substances in her blood and urine was found a lethal dose of methadone. Id. The methadone came from a prescription bottle bearing defendant Rosemary Houston’s name, found near the scene. Id. Houston was charged with distributing a controlled substance that resulted in death, was convicted, and received a 276 month sentence. Id. The defendant contested the mandatory minimum sentence, arguing that the victim commited suicide and that this death was not foreseeable.

Issue(s): "Houston . . . particularly protests being held responsible for a death that she claims was an unforeseeable suicide." Id. at *1.

Held: "We conclude that the plain language of the statute establishes that although cause-in-fact must be proven, foreseeability is not an element of the crime . . ." Id. at *1. "The Government was not required to prove that Bradford's death was reasonably foreseeable by Houston in order to obtain the heightened minimum sentence authorized by § 841(b)(1)(C )." Id. "To obtain the heightened minimum sentence described in § 841(b)(1)(C), the Government also had to prove that the methadone Houston delivered to Bradford actually caused Bradford's death. The Government was not required to prove foreseeability as an element of the drug distribution crime." Id. "The plain language of § 841(b)(1)(C) demonstrates that proximate cause is not a required element. Congress specified that the heightened sentence would apply "if death . . . results" from the distribution of a controlled substance. This passive language unambiguously eliminates any statutory requirement that the death have been foreseeable. According to its language, as long as death "results" from the use of a described controlled substance, the person convicted of distributing the substance "shall be sentenced to a term of imprisonment of not less than twenty years or more than life. Id." Id. at *2.

Of Note: The Ninth joins its sister circuits in not requiring proximate cause for the death enhancement of Section 841, and views its holding as consistent with earlier decisions on the federal drug statute regarding foreseeability. Id. at *3.

The decision is a noteworthy reminder, however, of just how horrible the drug statute really is – future AFPDs can just skip the chapter on mens rea in law school, because the concept is forgotten in federal criminal law. The opinion also gives a quick overview of the devolution of drug mens rea, explaining that while forseeability regarding the amount of drugs is necessary for drug conspiracy charges, foreseeability is not necessary for a "straight" drug offense. Id. at *2 (discussing United States v. Mesa-Farias, 53 F.3d 258 (9th Cir.1995) (substantive offense lies "regardless of whether the total amount was foreseeable." Id. at 260), and limiting to conspiracy cases United States v. Becerra, 992 F.2d 960(9th Cir.1993) (requiring that the quantity of drugs be foreseeable for § 841(b) to apply.))

How to Use: The small solace in this case is the Ninth steps back from the First Circuit’s characterization of the statute as a "strict liability" offense. Id. at *3 & n5. The Court explains that there may be some "some fact scenarios in which the distribution of a controlled substance is so removed and attenuated from the resulting death that criminal liability could not be imposed within the bounds of due process . . . ." Id. This may be the only small window of defense for some clients fighting these very high mandatory minimum cases.

For Further Reading: Although it is a bit dated, Professor Richard Singer has an excellent law review article discussing the gradual destruction of the mens rea requirement in 81 USC Section 841 – a destruction produced by years of muddied thinking and mis-cited statutes and authority. See Singer, Richard, The Model Penal Code and Three Two
(Possibly Only One) Ways Courts Avoid Mens Rea, Buffalo Crim.L.Rev., Vol. 4:139
(2001), available here.

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

US v. Houston

No. 04-30216 (5-9-05). The 9th holds that there is no "proximate cause" in a drug prosecution under 21 USC 841(a)(1) and (b)(1)(C) for a related death. Here, defendant obtained methadone from her doctor and then sold it to a friend, who overdosed and died. The defendant was charged with distributing and because a death resulted, faced a mandatory minimum of 20 years. The court instructed the jury that they had to find "proximate cause" between the defendant's actions and the death. That is, it had to be reasonably foreseeable. This instruction as challenged, as was the sufficiency of evidence. The 9th affirmed the conviction, holding that the instruction was error because it placed too high a burden on the gov't. The 9th recognized that in Main (an involuntary manslaughter prosecution for criminal negligence), there is a place for proximate cause, but in this statute, with the plain language of "resulting from," all the gov't had to prove was cause in fact; that is, did the act lead to the death. Proximate cause is not required where foreseeability is not implicit in the common understanding of the offense. The 9th thus joins the other circuits that have considered this issue. Moreover, the plain language of the statute supports this reading, as it only requires "results and not foreseeability. The 9th also found that there was sufficient evidence.

US v. Weatherspoon

No. 03-10551 (5-6-05). The 9th reverses for prosecutorial misconduct, finding that the prosecutor's repeated use of "I believe..." and the fact that officers risked a perjury charge was improper vouching. The case arose from a felon in possession, where the defendant supposedly placed a gun beneath his seat in a car. There were two witness statements of passengers, each of whom had bias or motive to lie. One quickly recanted, stating that she was afraid she'd lose her children; the other had state charges and faced arrest. The 9th (Shadur) stresses that the vice of vouching comes from implying that he or she knows facts that the jury doesn't. While counsel should not say "I believe...." there is more risk when the prosecutor, with the prestige of the gov't behind him or her. Trott, in dissent, argues that the distinctions parsed are too fine, and that the vouching precedent of the 9th is impractical in the rough and tumble of a trial, where the jury knows that the prosecutor "believes" something even if he or she doesn't say those words, but substitutes instead "the evidence shows...."

US v. Cardenas

No. 03-10009 (5-4-05). This raises the issue of appeal waivers in the context of safety valve, mandatory minimums, and Booker. The defendant entered into a plea that recognized he was facing a 10 year mandatory minimum sentence, that he could possibly get the safety valve, that sentencing was up to the court, and that he waived his right to appeal his sentence. Well, the safety valve "disclosure" went from bad to worse to untruthful, and the court ended up holding that he wasn't eligible for the benefit. His waiver precluded appellate review. Booker wasn't any help because this charge involved a mandatory minimum, not a guideline, and so the law's change didn't affect the plea.

Allen v. Calderon

No. 02-16917 (5-3-05). A pro se petitioner in habeas misses some filing deadlines. He argues that he didn't understand the consequences because he is mentally ill and incompetent. The district court still dismisses, despite affidavits from fellow inmates and a psychiatric report with a diagnosis of schizophrenia. The 9th reverses, finding that there was a real issue of whether the petitioner was competent to respond, and ordered a hearing on that issue. If he is incompetent, then a guardian ad litem can be appointed.

Cassett v. Stewart

No. 03-16573 (5-3-05). This is a reversal of a petition's dismissal for procedural default. The 9th finds that under Arizona state precedent, it is unclear whether petitioner "knowingly and intelligently" waived a right of constitutional dimension and that the state, rather than the federal courts, should make that determination. The 9th also found that petitioner had addressed a federal claim that introduction of his previously vacated guilty plea had violated his due process rights and the court erred in dismissing.

Case o' the Week: Weatherspoon, 9th Reverses for AUSA vouching

The third time was not the charm for Las Vegas AUSA Lahood, who gets reversed in this prosecutorial misconduct/vouching decision. United States v. Weatherspoon, __ F.3d __, 2005 WL 1052676 (9th Cir. May 6, 2005), available here. This is one of the best published decisions on prosecutorial vouching, and AFPD Jason Carr won on plain error review, to boot.

Players: Righteous win by Las Vegas AFPD Jason Carr. The third prosecutorial misconduct case in the 9th Circuit for AUSA Lahood.

Facts: Felon Weatherspoon was a passenger in a car stop and search that produced a gun. 2005 WL 1052676, *1. The other passenger and the driver inculpated Weatherspoon in written statements at the time of the stop. Id. One witness later recanted, the other described consideration/threats used to secure the statement. Id. At trial, the prosecutor repeatedly vouched for the cop witnesses, saying that they were credible. Id. at *2. He also argued that the officers would not risk their jobs by lying. Id. at *2. AUSA Lahood said that he didn’t believe a witness’s claim that he was threatened by the cops. Id. at *3. He assured the jury that the witness had actually told the truth when he inculpated the defendant during the stop, and before the grand jury. Id. Finally, Lahood reassured the jury that "convicting Mr. Weatherspoon is gonna make you feel comfortable knowing there’s not convicted felons on the street with loaded handguns . . . ." Id. at *5.

Issue(s): "We must [ ] determine at the outset whether the prosecutor made improper
statements during the course of the trial, after which we will turn to the effect of any such misconduct." Id. at *2.

Held: "As to the threshold issue of impropriety, we conclude that prosecutorial misconduct was clearly involved, both (1) because the prosecutor vouched for the credibility of witnesses and (2) because he also made arguments designed to encourage the jury to convict to alleviate social problems." "[W]e conclude that the prosecutorial misconduct here affected the jury’s ability to consider the totality of the evidence fairly . . . We therefore REVERSE for plain error and REMAND for retrial." Id. at *8.

Of Note: The opinion is laden with wonderful quotes – here’s one: "[W]e stress that the ethical bar is set higher for the prosecutor than for the criminal defense lawyer – a proposition that has been clear for at least seven decades." Id. at *5. The Court also wryly observes that this same prosecutor (AUSA Lahood) "has engaged in exactly the same kind of vouching conduct in two instances that has led other panels of this court to upset convictions obtained by that prosecutor." Id. at *5.

It is also remarkable that this case was reversed on a plain error analysis. Id. at *7. Thus, the opinion is of even greater value when objections to prosecutorial vouching are fully preserved.

Finally, note that the Court flatly rejects a "defense opening the door" justification for this impermissible vouching. Id. at *6.

How to Use: Weatherspoon is one of the most thoughtful opinions on prosecutorial vouching: it should earn an entry in every trial notebook. Obviously, use the case to identify and object to vouching in the AUSA’s closing arguments. Moreover, it may also be worth it to prophelatically brief Weatherspoon in in limine filings, to put the Court and government on notice that you’re aware of this type of misconduct – and that it may cost a reversal.

For Further Reading: Before Weatherspoon, the Nevada USAO had a press release touting AUSA Lahood’s prosecution of a defendant who got into a stand-off with police officers. Press release available here.

Will the USAO/DOJ now issue a press release describing Lahood’s third episode of prosecutorial misconduct in the Weatherspoon decision? Don’t hold your breath.

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

Case o' The Week: Callum and Wiretap Challenges

The Ninth posts a very disappointing Title III decision in United States v. Callum, ___ F.3d ___, 2005 WL 901319 (9th Cir. Apr. 20, 2005), available here. Despite the government's conceded failures to comply with the wiretap statute, the Court upholds a refusal to suppress wire proceeds. The opinion is worth review for the scathing criticism of the ND USAO, and is a must-read for anyone wrestling with a wiretap.

Players: A superstar defense cast of Mark Rosenbush, Richard Mazer, Joyce Leavitt, and Michael Stepanian.

Facts: The ND Cal USAO and DEA ran a wiretap on two coke dealers. Id. at *1. Although the Title III wiretap statute requires it, the wiretap application – and subsequent order – did not state on their face which DOJ official authorized the wiretap. Id. Moreover, the wire application completely failed to reveal that there were previous wires on the same defendants. Id. at *6. Evidence also strongly suggested that the authorizing judge approved the wiretap before it was actually authorized by DOJ. Id. at *4. Nonetheless, the reviewing court refused a Franks hearing on these and other issues.

Issues: Do any of these myriad Title III shortcomings require suppression of the wiretap proceeds?

Held: No. "Here, rather than listing someone who was statutorily incapable of authorizing the application, the AUSA who prepared the order for the judge's signature listed no one at all. But this is no more a ‘substantial[ ] impair[ment]’ of congressional purpose than identifying an unauthorized source . . . 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." Id.

This holding is a far cry from the Title III requirement that the DOJ official be identified on the face of the application and order. Equally troubling is the Ninth's terse rejection of all of the remaining – and very substantial – challenges to the wire.

Of Note: Callum, and the equally bad McGuire decision, elevate the Ninth as one of the worst Circuits for wiretap litigation. Although judge Kozinki strongly rebukes the ND USAO, the wiretap is still upheld. "Title III is an exacting statute obviously meant to be followed punctiliously, yet the officers repeatedly ignored its clear requirements. The sloppy handling of Title III's procedures by the United States Attorney's Office for the Northern District of California bespeaks a lamentable lack of supervision." Id. at *6. Judge Pregerson’s scorching concurrence lambasts the USAO even more directly – and yet this egregious wiretap is still upheld. Id. at *6.

Callum raises the question of just how bad must a wire be to finally merit suppression? We’ve devolved a long way from the original, strict Title III requirements designed to limit the use of this extraordinarily invasive investigative technique.

How to Use: Anyone in the Ninth dragged into wiretap litigation should begin by reading Callum on the issue of Title III technical requirements, and United States v. McGuire, 307 F.3d 1192 (9th Cir. 2002) on substantive wiretap challenges. To put it charitably, fighting a wiretap in the shadow of these decisions is an uphill battle.

For Further Reading: Mark Rosenbush and his colleague, Tim Finnegan, are our local experts on wiretap litigation and won’t take this decision lying down – an en banc petition is already in the works. Callum is particularly dangerous in light of the government's increased reliance on wiretaps – the feds increased the use of non-terrorist wiretaps by 19% last year. See CNN article here.

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

US v. Gust

No. 04-3028 (4-26-05). The police received a report of gun fire on private property in a "no shooting" zone. He went to investigate and found several persons, including the defendant, walking with cases in their arms. Defendant explained that they had been target shooting and had received permission to do so. There was no warrant on defendant. The police nonetheless searched the case without a warrant and without consent. The officer found a sawed off shotgun. The district court denied the motion to suppress, writing that it was obvious what was sin the case, and so it was akin to "plain view." The 9th didn't go that far, and indeed reversed. The 9th reasoned that indeed some containers were such that it was obvious what was in it (tuba?) but that the test was an "objective" one. Here, the case was not transparent, and that to the untrained eye (and even to the police officer), it was not obvious that a firearm was in the case. Have gun, will travel with the 4th amend.'s protection.

Congrats to AFPD Gerald Smith of E.D. Wash & Idaho for the win.

US v. Ogles

No. 03-10439 (4-28-05). This appeal takes aim at the meaning of "licensee" in the context of firearm dealers. The defendant was licensed in California to sell firearms; he set up a booth however in Arizona and was selling guns. He was convicted on a count of selling a gun to someone who wasn't a resident of the state he was in and the court granted a Rule 29 motion on the second count, which was selling in a state without having a license from that state. The 9th affirmed the conviction on count one, viewing the evidence in the light most favorable to the gov't, it held that the evidence could support such a conviction given that other dealers "warned him," the buyer produced a Arizona driver's license, and there were other sales. The 9th rejected the evidentiary arguments of against 404(b) as to the other sales. On the second count, the 9th reversed the Rule 29, holding that it wasn't double jeopardy because the court didn't resolve factual disputes but a legal issue as to the whether a defendant had to be licensed at all. The 9th rejected the approach of the 6th Circuit in Caldwell that would read "license" as requiring being licensed in any state; rather, the 9th joined the 11th Cir. in interpreting the statute as requiring that the license be that of the state