US v. Dare, No. 13621 (9-23-05). The 9th refuses to extend the logic of Apprendi, Blakely, and Booker to mandatory minimums. The 9th holds that Harris, although questionable, is still controlling. The defendant here received a 10 year mandatory minimum sentence for discharging a firearm. The defendant was drunk when, during a pot deal, a shotgun shot was fired. the court conceded that it couldn't find discharge under a clear and convincing standard, but could under a preponderance test. The 9th agrees that Harris is difficult to reconcile with the recent sixth amendment sentencing cases, but it has not yet been overruled. Moreover, the 9th distinguished between the stat max for guidelines, and the minimum "floor" of a sentence in this mandatory minimum scheme. Bea, in dissent, argues that Harris has been effectively overruled because a judge found facts that increased a sentence beyond the maximum he could have imposed. Bea's dissent is compelling and reveals how untenable Harris is. [Ed. note: It is critical that counsel preserve this issue when appropriate. Why is it necessary to preserve Harris issues? If you don't raise it, you waive it. ].

US v. Cruz, No. 03-35873 (9-16-05). Unsurprisingly, the 9th holds that Booker "does not apply retroactively to convictions that became final prior to its publication." The 9th joins all the other circuits that have considered this issue in finding that Booker does not meet the Teague exceptions: it is a "new rule" that is "procedural" and is not a watershed rule. The 9th decides this in a slight per curiam opinion. While undoubtedly the decision was foretold, the issue is not as easy as the analysis would have it. Justice O'Connor, in Apprendi, stated that the decisions were "watershed." Moreover, the distinction between Ring and Booker is not who makes the decision, but also, critically, by the difference between reasonable doubt and preponderance.

US v. Kortgaard, No. 03-10421 (9-21-05). The 9th wrestles with another Booker/Ameline issue, this time delaing with an upward departure based upon underrepresentation of criminal history. The defendant here had numerous drug and property crime convictions that either weren't counted because they were stale or because they were foreign. The district court departed upward because he found that the defendant's track record indicated he would commit further crimes. The 9th was troubled with this propensity approach. It remand through because under Ameline the court had sentenced under a mandatory scheme, even with an upward, and that the new advisory guides rendered the system more flexible. The 9th rejected the gov't's argument that the convictions evaded Ameline because they were under the Almendarez-Torres exception (past convictions). The 9th stated that a conviction is one thing, but the facts surrounding the conviction, especially in characterizing it and using it for sentencing, was intensely factual, and had to be reconsidered in a remand. The 9th restated that need for the court identify why these priors should result in the sentence it did. Prior convictions aren't simply tallied up, but need to be assessed for seriousness and for quality, not quantity.

Sims v. Brown, No. 03-99007 (9-21-05). The 9th affirms the denial of habeas relief. The petitioner stalked Domino pizza employees because of an argument, and committed several murders in South Carolina and one in California, with attempted murders as well. The murder was strangulation after calling for a pizza, and then robbing the store. The key issues here revolved around the prosecutor striking various minority jurors, statements admitted in violation of Miranda, and in arguing that the jury, in sentencing, should not consider the horrific sexual, physical and emotional childhood abuse of the petitioner because there was no "bridge" to this crime. The 9th concluded that the prosecutor has offered race neutral reasons why he struck so many African American and Hispanic jurors (youth, limited life experiences, hostility to the death penalty). The 9th also concluded that it didn't have to decide whether statements made by petitioner were in violation of his Miranda rights (he invoked, but late made some statements, and the issue was whether they were spontaneous or a result of police questioning) because any error was harmless. Finally, the 9th held that the argument of tying the abuse to the offense still allowed the jury to consider the abuse as mitigation; it was an argument why it didn't matter. B. Fletcher, dissenting, argues that the incriminating statement ("I had to kill that boy") was in violation of Miranda because the petitioner had simply asked, after he had invoked, what the process of extradition was, and this lead the officer to pry. Moreover, under a Brecht analysis, the statement was prejudicial because the prosecutor harped on it in his closing argument. The prosecutor also erred in imposing a tie between the abuse and the crime, while the law permits any mitigation to be presented, not requiring a tie.

US v. Chaudry, No. 04-50421 (9-14-05). The 9th holds that the drilling of a single hole 5/16th of an inch into the bed of a pickup truck at the border did not constitute a property search that is "so destructive as to require a different result." US v. Flores-Montano, 541 US 149 (2004). This was a border POE search. The hole was small, it didn't result in making the truck unsafe, nor in destroying the property. The gov't in this case, and two others, pressed a litigation position that the gov't doesn't need reasonable suspicion, or any suspicion, in order to drill and search. Judges B. Fletcher and Fisher concurred, stressing that the gov't had suspicion in this case because of the alert of drugs, and that the gov't was seeking, in effect, an advisory opinion obviating the need for any suspicion. They characterized the litigation strategy as "game playing" and a waste of judicial resources. Under the facts of this case, they upheld the district court but their patience was tried.

US v. Hernandez, No. 04-50286 (9-14-05). Essentially the same as Chaudry as the removal of door panels were not obtrusive or destructive.

US v. Flores-Montano, No. 04-50497 (9-14-05). Essentially the same as Chaudry except the search was of a gas tank. This trilogy of cases offer a roadmap of how the gov't can drill, poke, pry, and dismantle a vehicle at the border, without suspicion, in order to see if there is contraband.

Case o' The Week: Ninth Doesn't Take the Dare, Won't Take on Harris after Booker

(Almost) everyone hates mandatory minimums; from Justice Breyer to Families Against Mandatory Minimums (see logo left, web site link below). Despite judicial disinchantment with mand-mins, the Ninth passes on a chance to take on these sentencing schemes in United States v. Dare, __ F.3d __, Slip. Op. at 13621. (9th Cir. Sept. 23, 2005), available here. Relative newcomer Judge Bea quickly shows his judicial independence with a dissent that would find Blakely and Booker changed the analysis so dramatically that Harris's rule on mandatory minimums is no longer good law.

Players: Hard-fought case by Michael Donahoe of the Montana Federal Public Defender.

Facts: Defendant Dare got a ten year mandatory-minimum in a § 924(c) case. Id. at 13622. He challenged, on Apprendi grounds, the district court’s preponderance findings that he had discharged a gun (which kicks the mand-min up to 10). Id. Dare was drunk when a shotgun shot after a pot transaction was fired; the court conceded that it could not find “discharge” under a clear and convincing standard, but was obligated to do so under the preponderance standard. Id. at 13627.

Issue(s): 1. “Dare argues that he was sentenced in violation of the Sixth Amendment constitutional protections articulated in Apprendi, then in Blakely, and most recently in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005).” Id. at 13628. 2. [After Booker, must there be higher standards of proof at sentencing – particularly when the mandatory minimum creates a dramatically higher sentence?]

Held: 1. “Dare argues that the constitutional analysis in Harris was effectively overruled by the plurality in Booker, ___ U.S. ___, 125 S. Ct. at 756. We agree that Harris is difficult to reconcile with the Supreme Court’s recent Sixth Amendment jurisprudence, but Harris has not been overruled.” Id. at 13633.

2. To date, we have applied the “disproportionate impact” test only in the case of federal guideline sentencing enhancements. . . The enhancements under the formerly mandatory federal guidelines increased the defendant’s possible maximum sentence. . . This case, by contrast, involves only a statutory mandatory minimum sentence. The judge’s findings did not expose Dare to a higher maximum statutory sentence, which, under Harrisand the now advisory guidelines, is life imprisonment based upon the allegations in the indictment. . . . Therefore, under Harris, due process concerns do not require that a higher standard of proof be satisfied.” Id. at 13634-35.

Of Note: Relative newcomer Judge Bea calls the Booker revolution for what it is, and explains why Harris is no longer good law in a compelling dissent. See id. at 13637. He starts his dissent with a clear indictment of the majority position: “Harris v. United States, 536 U.S. 545 (2002), is no longer good law in cases where a defendant receives a sentence, based on facts found by a judge other than a prior conviction, that is higher than the maximum sentence the judge could have imposed based solely on facts either admitted by the defendant or found by a jury beyond a reasonable doubt.” Id. Judge Bea then goes through a detailed analysis of why Harris did not survive Blakely and Booker, and explains why a preponderance standard no longer suffices. Bea’s prescient dissent deserves citation in the Supreme Court decision that will ultimately, explicitly, overrule Harris (one hopes).

How to Use: Defense counsel should raise all of the Dare challenges in any mandatory minimum case. Reading the opinion, one is impressed with how unimpressed even the majority is with the continued viability of Harris after Blakely and Booker. As Judge Bea observed, district court judge Gertner has already held that Harris did not survive Blakely-Booker. The Supreme Court should take this issue up someday; counsel will have wanted to preserve the challenge for later habeas attacks.

For Further Reading: Families Against Mandatory Minimums has been one of the most vocal critics of these harsh sentencing schemes. For a good general overview of mandatory minimum litigation, and for many useful links on mand-min litigation, visit the FAMM site here.

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

Case o' The Week: Conspiracy Theory - Smith and Multiplicity

Accounts on the Cayman Islands were one of the many aspects of multiplicitous conspiracy allegations in United States v. Smith, __ F.3d __, 2005 WL 2210206 (9th Cir. Sept. 13, 2005), available here. Judge Hawkins writes an interesting opinion that lays out the multiplicity attack -- but ultimately falls short of finding plain error.

Players: Creative and exhaustive appellate attacks by former E.D. Cal. AFPD John Balazs.

Facts: David Smith and his colleagues were accused of tax, mail, and wire fraud, and money-laundering. Among other counts of conviction, the jury convicted the defendant of conspiracy to defraud the US in the ascertainment of taxes, conspiracy to engage in mail and wire fraud, and conspiracy to launder money – all in violation of 18 USC § 371.

Issue(s): (Most interesting among many): Were the three conspiracy counts multiplicitous “because there was only one combined scheme, i.e., one conspiracy?” Id. at *4.

Held: Considering all five Arnold factors, it was arguably error for Bates and Smith to be sentenced to consecutive terms on the three conspiracy counts. However, an error is not plain unless it is ‘clear’ or obvious. . . . . [I]t was not clear or obvious that the three conspiracies were multiplicitous, even at the sentencing stage.”

Of Note: The Court relies on the five Arnold factors to determine whether the conspiracy counts were multiplicitous and violate double jeopardy: 1. the differences in the periods of time covered by the alleged conspiracies; 2. the places where the conspiracies were alleged to occur; 3. the persons charged as the coconspirators; 4. the overt acts alleged to have been committed; and 5. the statutes alleged to have been violated. Id. at *5 (quoting Stoddard).

How to Use: Trial counsel can hardly be faulted for not clearly raising the multiplicitous argument below – the stuff is so complex that it is almost impossible to understand the argument on appeal, after full appellate briefing and when summarized in Judge Hawkins’ opinion.

In essence, the lesson of Smith is to look carefully multiple conspiracies involving essentially the same conduct. In Smith, that meant three conspiracy counts that all essentially involved a “single unified plan from the very beginning.” Id. at *7 (The language that the AUSA used to describe the scheme in closing argument). When separate conspiracy allegations involve the same players, time-frame and conduct, remember Smith and multiplicity.

For Further Reading: The government’s summary of the facts of this case can be found in a DOJ press release. http://www.usdoj.gov/tax/usaopress/2003/03-20-03bates.pdf

Washington v. Lampert

No. 04-35381 (9-6-05). Petitioner agreed to a LWOP sentence in exchange for the state dropping the death penalty in a murder. He was sentenced accordingly and under a plea that had him waive his right to habeas. Of course he files one, alleging, among other claims, IAC. The 9th considers whether an IAC waiver is enforceable, and decides “no.” A defendant cannot waive an IAC claim because it goes to the heart of voluntariness and effectiveness of counsel. The other circuits have come out this way. Thus, this is a significant “win”. Alas, the win is chimerical because the 9th finds that there was no IAC

Menedez v. Terhune

No. 03-55863 (9-7-05). In an unsurprising decision, the 9th affirms the denial of the Mendendez brothers’ petition challenging their convictions. The 9th found no error in the preclusion of their imperfect self-defense instruction nor in their Ake claim. The brothers used a psychiatrist for therapy and not for forensic/defense purposes. The use of the tapes by the state was upheld.

US v. Smith-Baltiher

No. 03-50375 (9-9-05). This is a rare defense victory (for the moment) in a 1326 case. The defendant was apprehended trying to reenter the US. He admitted he was born in Mexico, and other not so good facts,. It turns out though that his mother may have been born in the US and was a citizen. The prosecutor had the birth certificate but refused to turn it over because it was “fraudulent” in his opinion. The court ordered him to turn it over. The court then made several rulings as to evidence and defenses, changed its mind, made several more, changed its mind, and refused to grant a continuance. Basically, the court found that the defendant was collaterally estopped by his prior deportations from arguing that he was a citizen; and that he could not mount a defense that he thought was a citizen. The 9th (Reinhardt) held that the gov’t couldn’t use collateral estoppel (the gov’t conceded error on this point based on Arnett). More important, the 9th found that the defendant could mount a defense that he thought he was a citizen. He would have been if the birth certificate of his mother is correct; the gov’t’s Homeland Security Dept doesn’t get to make the call; it is not a purely legal questions but a mixed one and the specific intent nature of his attempt to enter allows him to raise it. Congrats to Matthew Winter of the Fed Defenders of San Diego for this win.

US v. Murillo

No. 04-30508 (9-9-05). This is a felon-in-possession case. The prosecution was based on two state of Washington convictions where the statutory maximum was 5 years but the guidelines were for 12 mos (and he got 10, to run concurrently – there were two convictions). His argument was that under Blakely, the stat max was the 12 mos and not the 5 years. The 9th rejected this argument, reversing the district court. The 9th held that the stat max was the 5 years because that was the maximum sentence defined by the state’s criminal code and not the stat max under the guidelines as applied to this particular defendant under the facts.and under the state guideline scheme..

US v. Scott

No. 04-10090 (9-9-05). The 9th (Kozinski) confronts the issue of whether probable cause is needed to search a pretrial releasee’s home. The 9th considers the status of the releasee, the special needs of law enforcement and judicial appearance (both found lacking), and the distinction between, on one hand, the presumption of innocence in a pretrial releasee, and the forfeiture of rights by a probationer. The 9th weighs and balances, and affirms the suppression of evidence for a search without probable cause. Bybee, in dissent, would find that a pretrial releasee is close to a person on probation than someone not charged; the releasee has been charged, and so has some rights curtailed, and the interests of society in law enforcement and judicial economy (ie showing up) are special needs. Congrats to AFPDs Mike Powell and Cynthia Hahn of D. Nevada for another win (see Esparaza-Gonzalez above).

US v. Kelly

No. 04-30074 (9-6-05). In a career offender case, the 9th holds that a 1998 Washington state conviction for attempting to elude a police vehicle was not a crime of violence. The statute was overbroad in that one element was driving with a “wanton and willful disregard” for the lives or property of others. This element did not require that anyone be endangered. The state courts and the 9th both agree. Under a modified categorical approach, there was no indication that there was endangerment. Police reports and the PSR could not be considered.

Barker v. Fleming

No. 04-35911 (9-8-05). This was an identification case. The clerk was robbed by a “clown” – a robber with make-up in a joker style. The clerk at first couldn’t identify who the robber was, but after talking to co-workers, they figured it was someone with tattoos, and that such a man had come into the store previously the past days. The clerk told the officer, who said that he knew the guy, and that he had been in jail. The clerk was shown a photo line-up and picked out the petitioner. There was subsequently the jailhouse snitch, who said that petitioner had confessed. The first trial hung; the second ended in conviction, and a life sentence. In this petition, the 9th did indeed find that there was a Brady violation. The jailhouse snitch had even more prior convictions involving dishonesty and moral turpitude than was known by defense counsel at the time. The 9th reached this conclusion under a de novo standard because the state supreme court had muffed the standard of review for Brady violations. No matter though because the 9th found that it wasn’t prejudicial. The jailhouse snitch was thoroughly impeached and beaten up on cross and these additional convictions wouldn’t have mattered. The 9th looked at the strength of the eyewitness identification and the lack of reliance the prosecutor placed on the snitch. Interestingly, the 9th’s reliance on the strength of eyewitness identification should be used in arguing for an expert witness to discuss the fallacy. If the 9th is going to exult such evidence, it can be attacked.

Earp v. Stokes, No

03-99005 (9-8-05). The 9th remands for an evidentiary hearing on two claims in this capital post-conviction case. The petitioner alleges prosecutorial misconduct in the pressuring of a defense witness, who said that another suspect had raped and murder the child victim. The prosecutors allegedly used inappropriate tactics in getting the witness to recant. On the IAC claim, the focus wa son mitigation, anmd the failure of defense counsel to proceed with a deeper and more thorough investigation into the petitioner’s childhood abuse and brain damage. The decision to present, and how to present, is of course a tactical one, but one needs the information first as stressed in Wiggins and that was not sufficiently done here, where the mitigation presentation was shallow. The 9th affirmed the finding that there was no conflict despite defense counsel having a romantic intimate relationship with petitioner during trial.

US v. Esparza-Gonzalez

No. 04-10267 (9-6-05). There are Batson sins of commission; and now there are Batson sins of omission. In this case, the court was using an Arizona “struck” system of jury selection, where one can figure out which juror would be seated if peremptories are used, or not used. The prosecutor waived his peremptories, thereby ensuring that a juror with a Hispanic last name would not be seated. A similar tactic was used for the alternate. The district court first found a prima facie case for Batson challenge, but changed his mind. The court shouldn’t have, ruled the 9th, because the actions of the prosecutor raised the specter of discrimination. The case is remanded for hearings on what, if any, race neutral explanations the prosecutor could proffer. This case has a good discussion on the dangers of the Arizona “struck” system, permitting a camouflaging of racial discrimination. Congrats to AFPDs Freddie Sison, Cynthia Han and Michael Powell of the Nevada office for the win.

Murillo:FOPA faux pas, or how an actual maximum state sentence of twelve months becomes a crime punishable by imprisonment exceeding one year

How can an offense for which the "actual maximum possible term of imprisonment was 12 months" constitute "a crime punishable by imprisonment for a term exceeding one year" under the National Firearms Act?

Peter Murillo appeared in federal court charged under 18 U.S.C. § 922(g) with being a prohibited person in possession of a firearm. His only prior convictions were for harassment and second degree unlawful possession of a firearm. His attorney, AFPD Rebecca Pennell, established, as the Ninth Circuit agreed, that under the Washington guideline statutes, Mr. Murillo’s "actual maximum possible term of imprisonment was 12 months." District Judge Edward Shea looked at the plain meaning of § 922(g) and found that, because the crime was not "punishable by imprisonment for a term exceeding one year," Mr. Murillo was not a prohibited person under the statute.

So how do we get from a simple, plain meaning analysis to the Ninth Circuit’s contra-textual reversal of Judge Shea in Murillo (available here)? Two basic themes are involved: first, the court skips over key rules of statutory construction; and second, the court appears ready to interpret the statute as it thinks Congress meant, not what Congress said. Loyal readers will hear echoes of previous blogs regarding the Ninth Circuit’s holdings that simple drug possession constitutes a "drug trafficking offense" (available here and here) and that "term of imprisonment" is ambiguous so we should defer to the Executive Branch’s harsher construction, rather than apply the rule of lenity (available here and here).

But let’s get to statutory construction. First, the Ninth Circuit heads off course in the first sentence, divorcing its analysis from the text of the statute. At the outset of the opinon, the Ninth Circuit refers to § 922(g) parenthetically as "felon in possession of a firearm." § 922(g) never mentions "felony", and the guideline, U.S.S.G. § 2K2.1, refers to "prohibited person." The key phrase is "crime punishable by imprisonment for a term exceeding one year." The erroneous characterization of the statute as involving "felon" infects the rest of the court’s opinion, which relies on cases defining "felony" in the immigration context.

Second, the plain meaning of the text forecloses the "felon" construction. Twice this Term, Chief Justice Reinquist reversed lower courts’ construction of statutes because they did not respect the "natural" and "ordinary" meaning of the words used (Arthur Andresen & Leocal). Similarly, "crime punishable by imprisonment for a term exceeding one year," naturally and in the ordinary meaning of the words, does not cover an offense for which the "actual maximum possible term of imprisonment was 12 months."

Third, the court ignores the Firearms Owners Protection Act’s explicit deference to state law, as opposed to the national definitions employed by immigration law definitions of "felony". As blogged here, § 922(g) used to have a federal definition. After the broad interpretation of that definition in Dickerson v. New Banner, Congress, at the behest of the National Rifle Association, enacted FOPA. This statute added § 921(a)(20), which directed that the relevant phrase be defined by reference to state law: "What constitutes such a crime [‘punishable by imprisonment for a term exceeding one year’] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." The Murillo court ignores Congress’s express reference to state law.

Fourth, the court relies on "similar" arguments in the immigration context in Moreno-Hernandez and Rios-Beltran. The court does not mention the critical difference: the immigration questions depend on the definitions of "felony" and "aggravated felony." § 922(g) contains no reference to "felony." As the court held in Cazarez-Gutierrez, a national standard is necessary in defining "felony" in the immigration context to avoid disparate treatment of aliens. Under FOPA, Congress explicitly rejected the need for national uniformity and directed that the federal crime be defined by deference to the maximum punishment allowed under each individual State’s law. The immigration cases involve a different term, a different statute, and a different allocation of responsibility within the federalist system.

Fifth, the court depended on Marks, a case in which the FOPA issue was not raised. In Marks, the court rejected the argument that a prior conviction could not be used because it had been obtained through the ineffective assistance of counsel. No argument was made that the particular crime could not have been punished by more that one year. A case in which the issue was not raised carries no precedential weight.

That brings us to the sixth point. Let’s assume that the text is not as clear as it seems. What rules provide some guidance? Chief Justice Marshall has an idea: "The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself" (Wiltberger). How about the "venerable" rule of lenity (R.L.C.)?How about avoiding the constitutional question of whether deeming a crime "punishable" based on facts not pleaded and proved beyond a reasonable doubt to a jury violates the Sixth Amendment (Shepard & Martinez)? Instead, the rule we are left with is that, regardless of the words used, Congress must have intended that the defendant lose.

This is one more statutory area where defense counsel need to persist in asserting their clients' rights. The rules of statutory construction are – in this area – the predicate for the just operation of the criminal justice system. In accordance with the balance envisioned by the Constitution, no act violates federal criminal law unless Congress unequivocally said so. Congress in FOPA unequivocally decided that prosecutors could not make a federal case out of firearms possession in the absence of a prior conviction serious enough that State law authorizes the defendant to receive a term of imprisonment exceeding one year. The Murillo opinion rewrites, rather than interprets, the statute to allow just such a prosecution.

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

Case o' The Week: Off Scott Free -- The Fourth Amendment and Pretrial Release

Judge Kozinski (left) authors a great decision rejecting Fourth Amendment waivers coerced from pre-trial releasees. See United States v. Scott, __ F.3d __, 2005 WL 2174413 (9th Cir. Sept. 9, 2005), available here.

Players: Judges Kozinski and Willie Fletcher, Bybee dissenting. Another superb appeal out of the Reno Federal Public Defender; Michael Powell and Cynthia Hahn get the win.

Facts: Scott was arrested for drug possession crimes and released in the state system. Id. at *1. Conditions of release included random drug testing anytime of the day or night by any peace officer without a warrant, and to having his home searched for drugs by any peace officer anytime, day or night, without a warrant. Id. A tip lead officers to go to Scott’s home and test him for meth; while in the home, they found a shotgun for which Scott was charged federally.

Issue(s): "We consider whether police may conduct a search based on less than probable cause of an individual released while awaiting trial." Id. at *1.

Held: No. 1. Can’t Condition Release on Consent: The government cannot coerce consent to warrantless searches as a condition of pretrial release, so consent does not save the search. "Giving the government free rein to grand conditional benefits creates the risk that the government will abuse its power by attaching strings strategically, striking lopsided deals and gradually eroding constitutional protections." Id. at *1.

2. No Special Needs: There are not sufficient "programmatic" interests here to make this a "special needs" search, justified by the special societal requirements for searches of pre-trial releasees. Id. at *5. Unlike probationers, pre-trial releasees are presumed innocent, and no claimed special need justifies a search of their homes. Id. at *6.

Of Note: This is an extremely well-written and well-reasoned opinion, and is worth reading just for its thorough background on Fourth Amendment law and the "special needs" doctrine. "Special needs" is the new darling of the Fourth Amendment scholars; we all feared it would be a much bigger aspect of the Knights probation-search decision. See id. at *7-*8 (discussing Knights).

Because it addresses a completely novel issue of federal law, and because it is so enmeshed with the special needs analysis, will Scott get the bump to the Supreme Court? What luck the Supreme Court’s favorite, Judge Kozinski, wrote the persuasive decision: maybe that’ll stave off a cert. petition.

How to Use: Take a deep breath, then refuse to consent to warrantless drug tests or warrantless searches as a condition of release. Or – more diplomatically – agree to those conditions, then fight revocation under Scott when a drug test or search leads to problems. "The ‘unconstitutional conditions doctrine,’ . . . limits the government’s ability to exact waivers of rights as a condition of benefits, even when those benefits are fully discretionary." Id. at *1 (internal quotations and citation omitted). "The right to keep someone in jail does not in any way imply the right to release that person subject to unconstitutional conditions . . . ." Id. at 1 n.6.

Needless to say, any pretrial releasee facing new substantive charges after a warrantless search has a suppression motion brewing – (absent other exigent circumstances justifying the search).

For Further Reading: The "special needs" doctrine is going to get much more attention after Scott. For a very accessible summary of the evolution (or devolution) of the theory, see the Slate piece entitled, "Urine Trouble: Uncle Sam Wants You to Pee in a Cup," available here.

Incidently, the Earl decision that this article describes held that there was a "special need" to have high school athletes and band members pee in a cup. Here’s one notable Earl quote: "Urination is an excretory function traditionally shielded by great privacy . . . But the degree of intrusion on one’s privacy caused by collecting a urine sample depends upon the manner in which production of the urine sample is monitored." Board of Education v. Earls, 536 U.S. 822, 832 (2002).


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

Thompson: the Fourth Circuit demonstrates the need for reinterpretation of the ACCA under the doctrine of constitutional doubt

In Thompson, the Fourth Circuit split on the constitutionality of the Armed Career Criminal Act, leaving open the gaping question of whether, as a matter of statutory construction, the ACCA must be interpreted to require indictment and proof beyond a reasonable doubt on the facts necessary to increase the statutory maximum for weapons possession from ten years to life without parole. The opinion provides a wonderful illustration of the serious constitutional doubt regarding the need for formal pleading and proof of the characteristics rendering prior convictions predicates under the ACCA: the sequence of prior crimes and the facts making them "violent felon[ies]" or "serious drug offense[s]."

Mr. Thompson pleaded guilty in a colloquy during which the maximum of 15 years to life was left to future rulings by the sentencing judge. The defendant objected to an increase of the statutory maximum of ten years for being a felon in possession of a firearm because, under the Fifth Amendment, the indictment did not include allegations that his prior convictions constituted violent felonies and that they occurred on occasions different from one another, as required for the ACCA. Similarly, he claimed the Sixth Amendment precluded findings of those requisites for ACCA treatment without an admission or proof to a jury beyond a reasonable doubt.

To understand the Fourth Circuit’s split, we need to understand the history of Almendarez-Torres, the immigration case that provides the basis for the exception to Apprendi and Blakely for the fact of a prior conviction. In Almendarez-Torres, the Court narrowly found that the fact of a prior conviction, which had been repeatedly admitted during the plea colloquy, was a sentencing factor, not an element, and did not have to be charged in the indictment. The Court's decision rested in part on concern that juries would learn of the alien's prior conviction, a consideration that the Court noted did not apply to felon-in-possession prosecutions. Shortly after the 5-4 decision in Almendarez-Torres, Justice Thomas announced in Apprendi that his vote in Almendarez-Torres was in error. In two subsequent cases (Haley and Shepard), the Supreme Court expressly applied the doctrine of constitutional avoidance to construe statutes to avoid deciding whether to overrule Almendarez-Torres (as blogged here and here).

Because the ACCA does not set out how prior convictions and their characteristics and sequence are to be pleaded and proven, the courts do not need to reach the constitutionality of the extension of Almendarez-Torres to the ACCA. Rather, evolving Fifth and Sixth Amendment doctrine from the Supreme Court has created the serious constitutional doubts that require re-interpretation of the ACCA to avoid the constitutional questions. As blogged here and briefed here, the Supreme Court’s constitutional avoidance doctrine adds a step in the analysis that courts -- including Thompson -- have been skipping. Properly interpreted, the ACCA requires formal pleading and proof of the factors that increase the statutory maximum.

So we get to Judge Wilkinson for the majority and Chief Judge Wilkins's dissent. At the most basic level, the simple existence of Chief Judge Wilkins’s dissent establishes that serious doubts exist that are sufficient to trigger the doctrine of constitutional avoidance. He goes straight to the constitutional merits and finds for the defendant. The reason the dissent makes more sense than the majority involves some fine points.

First, with no mention of Apprendi’s statements that Almendarez-Torres was "at best an exceptional departure" based on "unique facts," Judge Wilkinson’s majority opinion characterizes Blakely and Shepard as "refusing to overturn" and "explicitly affirm[ing] the prior conviction exception." This is just wrong. The Supreme Court only resolves issues before it (Texas v. Cobb)("Constitutional rights are not defined by inferences from opinions which did not address the question at issue."). Blakely did not involve prior convictions and specifically and repeatedly reaffirmed Apprendi, with its instruction to narrowly limit Almendarez-Torres. And Shepard also did not involve the validity of Almendarez-Torres. Although the NACDL in an amicus brief attempted to raise the issue, the Court did not rule on that question (Lopez v. Davis, footnote 6, issue raised only by amicus not before the Court). As Justice Thomas stated in his concurrence: "The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres’ continuing viability." The Thompson majority bases its opinion on misinterpretation of Blakely and Shepard.

This leads to a second interesting point: Judge Wilkinson claims in footnote 3 that Shepard is a constitutional case, not – as Chief Judge Wilkins argues in dissent – a case of statutory interpretation. In the Supreme Court’s most recent explication of the doctrine of constitutional avoidance, Justice Scalia, writing for the majority in Clark v. Martinez, takes the dissent to task for characterizing the decision as a constitutional one. Under Martinez and Shepard, the Court’s decision to avoid the constitutional question does just that: the constitutional question is not decided because the statutory construction renders such a decision moot.

Which leads to a third point. In footnote 3, the majority purports to count Justices as favoring the Almendarez-Torres rule. On the contrary, as Justice Thomas pointed out in his Shepard concurrence, "a majority of the Court now recognizes that Almendarez-Torres was wrongly decided." And Thompson ignores Haley. Between Haley and Shepard, every Justice has found that the continuing viability of Almendarez-Torres raises a serious constitutional doubt sufficient to invoke the doctrine of constitutional avoidance (except Justice Kennedy, who dissented for other – and excellent – reasons in Haley)(count the votes in paragraph 8 of this blog).

By ignoring Apprendi’s cautionary language to limit the scope of Almendarez-Torres, the Thompson majority fails to recognize that application of that case to the ACCA requires its extension, not just its direct application. The Supreme Court in Haley recognized that the sequence of prior convictions constituted an extension of Almendarez-Torres (to be avoided by statutory construction if possible). Similarly, the ACCA’s requirement that the predicate crimes occur on different occasions, as well as the characteristics of specific type of offenses, go beyond the immigration statute holding of Almendarez-Torres. Instead of recognizing the significant statutory differences, the Thompson majority tries to shoehorn those distinct statutory factors into the fact of a prior conviction. This approach finds no support in the relevant statutes or the Supreme Court’s decisions in this area.

Then we get to the Fifth Amendment question. The majority claims the Fifth and Sixth Amendment claims are coextensive. Not so. If the statute or Constitution requires that factors be alleged in the indictment, and no such allegations are found and no such rights are waived, the crime has not been charged and the increased punishment is not available, regardless what happens at trial or at the plea colloquy. The Fifth Amendment’s interposition of the grand jury between the defendant and the government serves interests independent of the Sixth Amendment.

Chief Judge Wilkins’s dissent follows Apprendi in recognizing that the ACCA’s requisites go beyond the "fact of a prior conviction." He notes the language of Apprendi (overlooked by the majority) requiring that the case be narrowly viewed. While recognizing that only the Supreme Court can overrule Almendarez-Torres, Chief Judge Wilkins carefully distinguishes between the fact of a prior conviction and facts about a prior conviction. The constitutional analysis results in a finding by the dissenting judge that the failure to indict and prove the additional ACCA factors violated both the Fifth and Sixth Amendment.

Several important lessons come out of Thompson. The statutory doctrine of constitutional avoidance is available to reconcile clashing views of the Fifth and Sixth Amendment in a manner favorable to our clients. We need to be consistently arguing and preserving these issues. And the work of federal defenders has been substantially increased by the need to follow daily the national post-Apprendi, post-Booker legal developments. A tip of the hat to Professor Berman for keeping us up to date – and here’s the link to his sentencing policy site if you haven’t made him a favorite yet.

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

Case o' The Week: Ninth Cries Fowl(er) to Limited Confrontation Clause Rights

Relative Ninth Circuit newcomer Judge Carlos Bea (left) writes a memorable decision on the broad protections of the Confrontation Clause -- and grants a reversal in a difficult AEDPA context. See Fowler v. Sacramento County Sheriff’s Department, __ F.3d __, 2005 WL 2088410 (9th Cir. Aug. 29, 2005), available here. (Retiring) FPD Quin Denvir and AFPD Allison Claire earn the kudos this week for an important addition to the defense arsenal.

Players: Great win by our Eastern District FPD colleagues, Quin Denvir and Allison Claire.

Facts: Jeff Fowler was convicted for “annoying or molesting” the 14-year old daughter of his girlfriend. Id. at *1. At trial Fowler and the girl, Lara, agreed that he had discussed pornographic movies and masturbation, and that he had applied lotion to her arms, legs, shoulders and back. Id. at *1-*2. Lara also accused Fowler, however, of slipping his hand into her underwear and underneath her bra. Id. The State moved to preclude interrogation of Lara regarding two prior allegations of sexual assault against other men. Id. at *2. The trial court prevented the cross; after conviction Fowler ultimately filed a federal habeas petition.

Issue(s): Because this is an AEDPA case, did the State trial court’s limitation of cross involve “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States?” Id. at *4.

Held: “We conclude that the proffered cross-examination sufficiently bore upon Lara's reliability or credibility such that the jury might reasonably have questioned it and, thus, that the cross-examination implicated Fowler's Sixth Amendment right to confrontation. We further conclude that the trial court's implicit determination--that precluding the proffered cross-examination, rather than limiting it, was not unreasonable, arbitrary or disproportionate given the trial court's concerns about waste of time, confusion of the issues, and prejudice--was itself objectively unreasonable. Finally, because Lara's testimony was crucial to the State's case, which, in any event, was not strong, we conclude that this error had substantial and injurious effect or influence in determining the jury's verdict. We therefore reverse the district court's order denying Fowler's petition for a writ of habeas corpus, and remand for issuance of a conditional writ.” Id. at *1.

Of Note: It bears emphasis that this panel – Tallman, Bybee, and Bea – are not exactly known for their defense sympathies. Nonetheless, Judge Bea’s opinion gives us an excellent resource on importance of cross-examination as part of the Confrontation Clause right. As Bea explains, “cross-examination may implicate the Sixth Amendment without implying conscious or malicious fabrication on the part of the witness so long as it otherwise bears on the witness's reliability or credibility.” Id. at *5. Moreover, “cross-examination may implicate the Sixth Amendment even if it is not certain to affect the jury's assessment of the witness's reliability or credibility.” Id. at *6.

How to Use: Fowler should become one of those handful of cases that the defense routinely cites as authority for its broad right to cross-examine. The opinion methodically considers – and rejects – those familiar hurdles erected by trial courts on defense examination of government witnesses: consumption of time, jury confusion, and prejudice to the witness. Id. at *9-*10.

Check out the “greatest quotes” collection on the Confrontation Clause right at *13 – a wonderful start to a defense brief. Emphasize that in Fowler the Ninth reversed a sex conviction despite the very demanding AEDPA requirements. If error was established in that extraordinarily demanding context, surely it is error to limit your examination in your more-routine trial.

For Further Reading: Judge Bea is a fairly recent Bush appointment. See confirmation hearings here. Born in Spain, Bea emigrated to Cuba in 1939 after the Nazi invasion of Poland. See Ninth Circuit article here. He made his way to California, where he eventually became a San Francisco Superior Court Judge. Id.

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

Fowler v. Sacramento County Sheriff's Dept

, No. 04-15885 (8-31-05). The 9th grants a petition (Tallman, Bybee and Bea) because the restriction on petitioner's right o cross-examine the minor witness about two prior incidents of alleged abuse violated his sixth amendment rights. The petitioner was accused of inappropriate touching with the 14 year old daughter of the woman he was seeing. She accused him of touching while putting on lotion; he said that there was no inappropriate touching. There was no other evidence, and the case was a he said/she said. The victim had made allegations of two other molestations against other men seeing her mother. The state trial court kept those incidents out due to possible confusion, and relevance. ""Unreasonable" said the 9th, even under AEDPA, and the preclusion runs counter to the right to confront and cross examine.

US v. Sanders

No. 03-50471 (8-31-05). When your luck is bad, it is bad. Okay, if you plan to rob a bank, and have a getaway car, it pays to make sure you have enough gas. Yes, the defendant here was with others, they robbed a bank, hopped into the car, took off, and then stopped to get gas, where they were spotted. The defendant then engaged in a series of conversations with a codefendant about his not testifying. The conversations took place via a vent: defendant was son one floor and the codefendant was on another floor. Was there a reason they were on different floors. Of course, the codefendant was cooperating. The communications were not hearsay because the voice through the vent could be identified as the defendant. The witness tampering conviction was affirmed. There was also sufficient evidence for the gun conviction (held by another codefendant) and that was affirmed, along with the bank conviction. The case is remanded under Ameline with a twist. The original judge had retired, so it goes back to a new judge on the so-called "limited remand" which in this case is a "modified limited remand". Got it? The modification is that the new judge has to decide whether he would possibly give a materially different sentence upon full review of the record and has to allow allocution.

US v. Strobehn

No. 04-50167 (8-31-05). It will do bank robberies well to say, along with "Give me all your money, and no dye packs!", the admonition, "hold still!" The reason is that under 18 USC 2113(e), if a robber "forces any person to accompany him without the consent of such person," he faces a mandatory 10. The issue here is what is the definition of accompany? The defendant went to a security guard outside the bank, ordered him to walk into the bank, and lie down. It took 45 seconds and a few feet. The 9th concludes that is all that is required. It doesn't have to be an extended accompaniment, or substantial. This is the majority position of the 4th, 5th, 7th and 11th Circuits. The Tenth Circuit however has adopted a substantiality approach, which is rejected by the 9th. In dissent, B. Fletcher argues that congressional intent clearly meant for a substantial "accompaniment," akin to kidnapping or hostage taking, and Fletcher points to the levels of penalties from armed bank robbery to this. She points out that merely ordering someone from one part of the bank to another, in order to watch them, would fall into this interpretation. In another interesting issue, the defendant left a long rambling letter on the kitchen table where details were revealed. the letter was addressed to his wife, but after a page or so, went on to address others. This was not a marital communication so as to be privileged (Example: "Honey, ran out to get eggs and milk and rob a bank. Be back soon.") because it was meant to be read by third parties.

US v. Stephens

No. 04-50170 (9-2-05). "Pick a number, any number" a carnival barker might yell. That may well be the result of this decision, involving SR. The 9th confronts the usual SR conditions involving drug treatment, and drug tests. The challenge is whether delegation of the drug treatment and the drug tests to the Probation Officer is an improper delegation of authority under Article III (remember, not setting restitution, and not setting payments, was). The 9th looked at the statute and held that the requirement of drug treatment programs was proper, and the fact that drug testing was a feature of those programs was permissible. The officer, and program, could set these schedule for such testing. However, for the non-treatment drug testing, of which a minimum number of drug testing is required under 18 USC 3583(d), which requires three tests -- one within 15 days and two thereafter. The court could suspend such a requirement. The 9th reasons that the failure of a drug testing has a consequence, usually dire, and so the court needs to set a maximum number of drug tests if ordered outside the drug treatment context. This can't be delegated to the PO. "Hold on," says Clifton in dissent, this runs counter to prior precedent, back in 1987, in US v. Duff, 831 F.2d 176 (9th Cir. 1987), where the court permitted POs to order drug testing even when the court had not ordered drug testing because it supported the "commit no further crimes" requirement. The same policies should be at work here. Moreover, this decision will have the effect, argues Clifton, of having a district court set a high number, and back off from there. (To which the majority replies, in note 5, that "We doubt the district court judges would make unprincipled determinations." What do you think?)
Congrats to AFPD Alice Fontier, San Diego, for the statutory/delegation win.

Reasonable doubt advisory opinion?

Judge Bataillon, in the District of Nebraska, issued a careful opinion in Okai applying the doctrine of constitutional doubt to federal sentencing statutes. As a consequence of constitutional concerns, he required proof beyond a reasonable doubt, as a matter of statutory construction, where the sentence is increased based on disputed facts (as blogged here and here). Professor Berman posts today an order by another Nebraska district court judge criticizing Judge Bataillon’ s ruling and announcing, under the caption In The Matter Of Cases Pending Before Judge Richard G. Kopf, that he would not require proof beyond a reasonable doubt in his sentencing cases (as blogged here).

The brief judicial edict raises some interesting questions. Procedurally, in the absence of a specific case and advocacy by the parties, is this an advisory opinion? If an advisory opinion, what are the due process implications of the prejudgment regarding the burden of proof on future actual controversies? And substantively, by characterizing Judge Bataillon’s decision as constitutional, didn’t Judge Kopf make the same error as Justice Thomas in dissent in Clark v. Martinez by mistaking the statutory ruling for a constitutional one, which Justice Scalia took some pains to address in the Martinez majority opinion?

The major disconnect between the views of Judge Bataillon and Judge Kopf seems to be that Judge Bataillon used the serious constitutional doubts regarding the standard of proof to construe the sentencing statutes, which include no standard of proof, to require the level of proof that would render a constitutional ruling unnecessary. Judge Kopf characterizes Judge Bataillon's ruling as a decision on the constitutional merits, then asserts that only higher courts should make such rulings. The Supreme Court has repeatedly invoked the doctrine of constitutional avoidance as a principle of judicial restraint, keeping the judiciary out of making constitutional decisions unless absolutely necessary. Because Judge Bataillon's opinion in Okai is limited to statutory construction, the criticism of his purportedly constitutional ruling appears unwarranted.

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