Amicus curiae letter brief filed in U.S. v. Ameline

I wrote a letter brief (http://www.nacdl.org/public.nsf/mediasources/20050131a) as amicus curiae in U.S. v. Ameline, the Ninth Circuit case that applied Blakely to the guidelines and Blakelyized the guidelines (the only Circuit to do the latter!). I was limited to 2 1/2 pages, so the arguments are sparse indeed, but they are: (1) plain error standard is met in virtually every case in the Ninth Circuit (relying heavily on U.S. v. Hughes); (2) guidance should be given district courts regarding resentencing that: (a) the parsimony principle requires district courts to give considersation to all the factors in 3553(a), some of which are largely or totally irrelevant under a mandatory guidelines system (relying on U.S. v. Ranum); (b) district courts must use the beyond-a-reasonable-doubt standard of proof for any fact essential to an increase in punishment; and (c) the Due Process Clause prohibits, in two different ways, the district court from imposing a sentence any greater than that authorized by the facts as found by the jury or formally admitted by the defendant -- first, the ex post facto component of due process, and second, the presumption against vindictive sentences.

Booker: Outline of post-Booker cases 1.30.05

AFPD Fran Pratt has prepared a very useful outline of Booker decisions that have come out as of January 30, 2005.

POST-BOOKER DECISIONS – AN OUTLINE

As of January 30, 2005*
This compilation of selected decisions interpreting and applying United States v. Booker, 125
S. Ct. 738, 2005 WL 50108, 2005 U.S. LEXIS 628 (U.S. Jan. 12, 2005), is based primarily on searches in Westlaw (database FCJ-CS) and Lexis (database for all federal cases) using the following query:

booker and date(aft 01/11/2004). Decisions that, in the compiler’s judgment, are significant because they contain particularly lengthy, thoughtful, or otherwise useful discussion are marked by an asterisk (*).

Westlaw and Lexis citations have been provided where available. Most decisions can also be
retrieved as slip opinions from the issuing court’s web site. The cases are arranged by stage of litigation and chronologically within each stage. Cases from the Eastern District of Virginia and the Fourth Circuit have their names and citations in bold.

INDICTMENT

United States v. Dose, 2005 WL 106493, U.S. Dist. LEXIS 526 (N.D. Iowa, Jan. 12, 2005)
(Zoss, M.J.) (recommending in light of Booker that defendants’ motion to strike “notice of additional relevant facts” from superseding indictment as surplusage be granted)

United States v. Anderson, 2005 U.S. Dist. LEXIS 940 (S.D.N.Y. Jan. 24, 2005) (Keenan, J.)
(nothing in Booker requires dismissal of indictment)

United States v. Dottery, ___ F. Supp. 2d ____, 2005 WL 174634, U.S. Dist. LEXIS 1071
(E.D. Mich. Jan. 24, 2005) (Lawson, J.) (because Booker has rendered addition of sentencing factors to indictment unnecessary, concluding that “[s]ince the superseding indictment added only the sentencing factors and nothing else, the Court believes that all prejudice, real and imagined, will be removed by dismissing the superseding indictment and proceeding to trial on the original indictment”)

SENTENCING

United States v. Kuhn, ___ F. Supp. 2d ____, 2005 WL 66758, U.S. Dist. LEXIS 373 (E.D.
Mich. Jan. 12, 2005) (Lawson, J.) (upon remand after government won appeal regarding downward departure; after considering Guidelines as advisory and according them significant weight, granting downward departure from range of 21-27 months to 6 months in community confinement, the same sentence previously imposed)

* United States v. Wilson, ___ F. Supp. 2d ____, 2005 WL 78552, 2005 U.S. Dist. LEXIS 744
(D. Utah, Jan. 13, 2005) (Cassell, J.) (in a lengthy opinion in which court considered “just how ‘advisory’ the Guidelines are,” concluding that “that in exercising its discretion in imposing sentences, the court will give heavy weight to the recommended Guidelines sentence in determining what sentence is appropriate. The court, in the exercise of its discretion, will only deviate from those Guidelines in unusual cases for clearly identified and persuasive reasons. This is the only course that implements the congressionally-mandated purposes behind imposing criminal sentences.”)

United States v. Beal (In re Beal), ___ F. Supp. 2d ____, 2005 WL 112402, 2005 U.S. Dist.
LEXIS 750 (D. Me. Jan. 19, 2005) (Woodcock, J.) (while acknowledging that Guidelines are now
advisory, noting that court “must consult those guidelines and take them into account;” denying defendant’s motion for downward departure based on U.S.S.G. § 5K2.12, because defendant did not carry burden of establishing that she committed embezzled money from employer as a result of coercion and duress)

United States v. Davis, ___ F. Supp. 2d ____, 2005 WL 91257, 2005 U.S. Dist. LEXIS 609
(D. Me. Jan. 19, 2005) (Woodcock, J.) (while acknowledging that Guidelines are now advisory, noting that court “must consult those guidelines and take them into account; ruling that Florida conviction for robbery by sudden snatching is crime of violence for purposes of U.S.S.G. § 2K2.1(a) and § 4B1.2)

* United States v. Ranum, ___ F. Supp. 2d _____, 2005 WL 161223 (E.D. Wis. Jan. 19, 2005)
(Adelman, J.) (in explaining why court was imposing sentence lower than that recommended by Guidelines, stating that while court agreed that it must seriously consider Guidelines, “Booker is not an invitation to do business as usual;” courts need not follow old departure methodology in imposing sentence outside Guideline range; disagreeing with Judge Cassell in Wilson, supra)

United States v. Jones, ___ F. Supp. 2d ____, 2005 WL 121730, 2005 U.S. Dist. LEXIS 833
(D. Me. Jan. 21, 2005) (Hornby, J.) (in 18 U.S.C. § 922(g)(4) case (possession of firearm by person previously committed involuntarily to mental health institution), while concluding that he could not grant departure sought by defendant, government, and probation to take defendant from Zone D to Zone C, court concluded that it could achieve same result after Booker in considering Guidelines as advisory and as one factor under 18 U.S.C. § 3553(a))

* United States v. Barkley, not currently on Westlaw, Lexis, or the district court’s website, but
is abailable here. (N.D. Okla. Jan. 24, 2005) (Holmes, J.) (No. 04 Cr. 119(H)) (stating that the Guidelines would be “faithfully follow[ed]” in all cases, “with only such modifications as the Court finds are necessary to satisfy the requirements of the Sixth Amendment articulated in Blakely”; that is, within the context of the advisory guidelines, the court will apply the Sixth Amendment)

* United States v. Myers, ___ F. Supp. 2d. ____, 2005 WL 165314 (S.D. Iowa Jan. 26, 2005)
(Pratt, J.) (in sawed-off shotgun case in which Guidelines range was 20-30 months, sentencing defendant to 3 months probation; reviewing Booker, Wilson (supra), and Ranum (supra); finding Ranum persuasive and adopting Judge Adelman’s view because “[t]o treat the Guidelines as presumptive is to concede the converse, i.e., that any sentence imposed outside the Guideline range would be presumptively unreasonable in the absence of clearly identified factors . . .[and] making the Guidelines, in effect, still mandatory;” viewing Booker “as an invitation, not to unmoored decision making, but to the type of careful analysis of the evidence that should be considered when depriving a person of his or her liberty”)

* United States v. West, 2005 WL 180930, 2005 U.S. Dist. LEXIS 1123 (S.D.N.Y. Jan. 27,
2005) (Sweet, J.) (in wire fraud case, where stipulated Guideline range was 57-71 months, sentencing defendant to 60 months, the statutory maximum; following Ranum (supra), in that Guidelines are only one factor to consider; notably, stating that “[n]othing in Booker appears to suggest that such fact-finding, as limited by the principles of Apprendi and its progeny, is inappropriate. Accordingly, this Court will sentence West based upon the facts admitted in connection with his plea and upon those facts found by the Court in the context of analysis under subsection 3553(a), as limited by Apprendi and Booker”)

* United States v. Revock, 2005 U.S. Dist. LEXIS 1151 (D. Me. Jan. 28, 2005) (Hornby, J.)
(Criminal No. 04-105-P-H) (finding that after Booker, enhancements need be proven only by
preponderance of evidence and that jury verdict or defendant’s stipulation is not required; where codefendant did not receive enhancement because he was sentenced after Blakely but before Booker and defendant was otherwise identically situated to co-defendant, court would not apply enhancement even under preponderance standard, to avoid unwarranted disparity)

POST-SENTENCING DISTRICT COURT MOTIONS

United States v. Contreras, 2005 U.S. Dist. LEXIS 931 (S.D.N.Y. Jan. 21, 2005) (Casey, J.)
(in ruling on motion made pursuant to 18 U.S.C. § 3582 regarding applicability of U.S.S.G. amend. 640, noting that because defendant did not qualify for safety valve in first instance, court need not address “more complicated issue” of effect of Booker on defendant’s sentence)
United States v. Ziskind, 2005 U.S. Dist. LEXIS 1047 (D. Mass. Jan. 25, 2005) (Woodlock, J.)
(denying motion for stay of execution of sentence because, “the sentence imposed [by the court] under the mandatory guidelines scheme would in all likelihood be the sentence [it] would impose under an advisory guidelines sentencing scheme”)

DIRECT APPEAL

D.C. Circuit

United States v. Miller, ___ F.3d ____, 2005 WL 88942, 2005 U.S. App. LEXIS 862 (D.C.
Cir. Jan. 18, 2005) (in opinion written before Booker was decided, finding that even assuming that Blakely applied to Guidelines, district court could consider nature and timing of prior convictions)

Fourth Circuit

* United States v. Hughes, ___ F.3d ____, 2005 WL 147059, 2005 U.S. App. LEXIS 1189
(4th Cir. Jan. 24, 2005) (finding plain error in sentencing of defendant under mandatory guideline scheme and remanding for resentencing under advisory scheme)

Sixth Circuit

United States v. Davis, unpublished, 2005 WL 130154, 2005 U.S. App. LEXIS 1204 (6th Cir.
Jan. 21, 2005) (No. 03-4114) (in fraud case where sentencing pre-dated Blakely, such that defendant did not object to loss calculation on basis of Sixth Amendment but did object on other grounds, finding that Blakely issue was sufficiently preserved; remanding case for resentencing in light of Booker)

Seventh Circuit

United States v. Brown, unpublished, 2005 WL 130176, U.S. App. LEXIS 1034 (7th Cir.
Jan. 14, 2005) (No. 04-2870) (in Anders case, considering whether defendant could have challenged sentence under Blakely on ground that prior convictions were used to increase base offense level; noting that “Brown did not object to the characterization of his previous convictions . . . as crimes of violence or controlled substance offenses, and even after Blakely, the existence of a prior conviction need not be proven beyond a reasonable doubt;” concluding that “any argument that Brown’s sentence is unconstitutional would be frivolous”)

Eighth Circuit

United States v. Coffey, ___ F.3d ____, 2005 WL 119843, 2005 U.S. App. LEXIS 1090 (8th
Cir. Jan. 21, 2005) (where defendant had asserted before sentencing that there was insufficient evidence on which to calculate any drug quantity and apparently did not raise Blakely challenge until appeal, court of appeals simply remanded case, noting that “[w]e express no opinion on whether a sentence handed down under the mandatory Guidelines system is plainly erroneous, nor do we consider the outer limits of precisely what will preserve the issue”)

United States v. Burgess, unpublished, 2005 WL 124523, 2005 U.S. App. LEXIS 1135 (8th
Cir. Jan. 24, 2005) (No. 04-1543) (responding to defendant’s pro se supplemental brief, which raised Blakely claim, and remanding in light of Booker)

United States v. Cole, ___ F.3d ____, 2005 WL 167619, 2005 U.S. App. LEXIS 1320 (8th
Cir. Jan. 27, 2005) (affirming sentence; noting at end of opinion that defendant had not raised any claims that implicate Booker)

United States v. Parsons, ___ F.3d ____, 2005 WL 180495, 2005 U.S. App. LEXIS 1406 (8th
Cir. Jan. 28, 2005) (per curiam) ((1) in case submitted for decision last December, denying motion to file Post-Booker Decisions Outline As of Jan. 30, 2005 supplemental briefing in light of Blakely, where defendant claimed he “‘would never had admitted to the amount of loss . . . if he had known that these factors had to be proven beyond a reasonable,’” because defendant was sentenced only on basis of facts he admitted as part of plea; (2) further, developments in
law in Blakely and Booker do not invalidate plea; (3) finally, finding that “there would no merit to an argument that Parsons is entitled to resentencing under advisory Guidelines” where he was sentenced at the low of the range that he had agreed to in his plea agreement)

Ninth Circuit

United States v. Tanner, unpublished, 2005 WL 147590, 2005 U.S. App. LEXIS 1215 (9th Cir.
Jan. 25, 2005) (Nos. 02-10661, 03-10002) (noting that as to sentencing issues raised by both defendant and government (on cross-appeal), “this issue would have been difficult. Now that the Sentencing Guidelines are merely guidelines channeling the reasonable exercise of the district court's discretion, we cannot say, in light of the district judge's careful consideration of both the guidelines and the individual circumstances of this case, that the sentencing decisions were unreasonable”)

United States v. Akpa, unpublished, 2005 WL 159626, 2005 U.S. App. LEXIS 1293 (9th Cir.
Jan. 26, 2005) (No. 04-10146) (where it was unclear from opinion whether defendant had raised Blakely issue in district court but did raise it on appeal, “[w]e remand to the district court for it in the first instance to reexamine Akpa’s sentence in light of” Booker)

Eleventh Circuit

* United States v. Rubbo, ___ F.3d ____, 2005 WL 120507, 2005 U.S. App. LEXIS 1096
(11th Cir. Jan. 21, 2005) (finding that Apprendi / Blakely / Booker claims do not fall outside of scope of waiver of appeal; enforcing waiver and dismissing appeal)

United States v. Reese, ___ F.3d ____, 2005 WL 172024, 2005 U.S. App. LEXIS 1324 (11th
Cir. Jan. 27, 2005) (in case where defendant raised Apprendi challenge in district court and on appeal in briefs submitted prior to Blakely, supplemental briefs were filed in light of Blakely, panel decision issued last September (382 F.3d 1308) but mandate was withheld at request of member of court, now vacating prior opinion and remanding for resentencing consistent with Booker)

United States v. Grant, ___ F.3d ____, 2005 WL 172157, 2005 U.S. App. LEXIS 1337 (11th
Cir. Jan. 27, 2005) (affirming sentence; noting at beginning of opinion that defendant had not contended that Apprendi, Blakely, or Booker affected his sentence)

PETITION FOR REHEARING ON DIRECT APPEAL

No opinions at this time.

CASES REMANDED FROM THE SUPREME COURT

For the list of the approximately 400 cases in which, on January 24, 2005, the Supreme Court
granted the petition for certiorari, vacated the judgment, and remanded to the courts of appeals (i.e., “GVR’ed” the cases), go here.

FIRST 2255 MOTION

United States v. Morris, 2005 WL 80881, U.S. Dist. LEXIS 418 (D. Conn. Jan. 12, 2005)
(Underhill, J.) (noting that even if Blakely and Booker applied to cases on collateral review, court would have imposed same sentence whether Guidelines were mandatory or advisory)

Quirion v. United States, 2005 WL 83832, U.S. Dist. LEXIS 569 (D. Me. Jan. 14, 2005)
(Kravchuk, M.J.) (recommendation of magistrate judge that district court find that Booker should not be retroactive); see also Stevens v. United States, 2005 WL 102958, 2005 U.S. Dist. LEXIS 608 (D. Me. Jan. 18, 2005) (Kravchuk, M.J.) (same, when claim was not raised on direct appeal)

Baez v. United States, 2005 WL 106901, 2005 U.S. Dist. LEXIS 735 (S.D.N.Y. Jan. 19, 2005)
(Batts, J.) (in ruling on § 2255 motion filed well before Blakely and Booker were decided, court
considered sua sponte whether defendant could get relief under Booker and concluded that he could not because the mandatory minimum sentences to which he was subject exceeded the sentence calculated under the Guidelines)

United States v. Larry, 2005 U.S. Dist. LEXIS 853 (N.D. Tex. Jan. 19, 2005) (Kaplan, J.)
(because Booker stated that it applied to cases on direct review, and because both Blakely and Booker involve new rules of criminal procedure and do not fall within either Teague exception, Booker is not retroactive)

United States v. Johnson, ___ F. Supp. 2d ____, 2005 WL 170708, 2005 U.S. Dist. LEXIS
1053 (E.D. Va. Jan. 21, 2005) (Smith, J.) (Blakely and Booker do not apply retroactively; there is nothing in either decision indicated that Supreme Court meant to overrule the many cases holding that Apprendi is not retroactive)

Gerrish v. United States, ___ F. Supp. 2d ____, 2005 WL 159642, 2005 U.S. Dist. LEXIS
1013 (D. Me. Jan. 25, 2005) (Hornby, J.) (denying certificate of appealability following denial of § 2255 motion because Blakely and Booker are not retroactive)

Warren v. United States, 2005 WL 165385, 2005 U.S. Dist. LEXIS 989 (D. Conn. Jan. 25,
2005) (Thompson, J.) (denying first § 2255 motion based on Apprendi because decision announced new rule of law that was procedural and that did not meet either exception for new procedural rules in Teague v. Lane; Part II gives succinct general overview of habeas law and procedure)

* United States v. Siegelbaum, not currently on Westlaw, Lexis, or court’s website, but can be
accessed here. (D. Or. undated) (Panner, J.) (containing interesting discussion of retroactivity; ultimately concluding, without deciding retroactivity issue, that defendant was not entitled to relief because he got benefit of his plea bargain)

SECOND 2255 MOTION

District courts

Hamlin v. United States, 2005 WL 102959, 2005 U.S. Dist. LEXIS 751 (D. Me. Jan. 19, 2005)
(Kravchuk, M.J.) (recommendation of magistrate judge denying second § 2255 motion because Supreme Court has not made Booker retroactive)

Courts of Appeals

In re Anderson, ___ F.3d ____, 2005 WL 123923, 2005 U.S. App. LEXIS 1097 (11th Cir.
Jan. 21, 2005) (denying application for leave to file second or successive petition in part because Supreme Court has not made Booker retroactive)

2241 MOTIONS

Godines v. Joslin, 2005 WL 177959 (N.D. Tex. Jan. 27, 2005) (Sanderson, M.J.) (in case where
petitioner had previously filed a § 2255 motion, recommending that motion made pursuant to 28 U.S.C. § 2241 motion be denied because it should be construed as § 2255 motion and petitioner did not demonstrate that savings clause of § 2255 applied where Booker has not been made retroactive)

Rodriguez v. Joslin, 2005 WL 178034, 2005 U.S. Dist. LEXIS 1103 (N.D. Tex. Jan. 27, 2005)
(Sanderson, M.J.) (in case where petitioner had previously filed a § 2255 motion, recommending that motion made pursuant to 28 U.S.C. § 2241 motion be denied because it should be construed as § 2255 motion and petitioner did not demonstrate that savings clause of § 2255 applied where Booker has not been made retroactive; further, court has no jurisdiction where Fifth Circuit has not issued order granting petitioner leave to file second § 2255 motion)

* Prepared for CJA panel attorneys in the Eastern District of Virginia by Frances H. Pratt,Research and Writing Attorney, Office of the Federal Public Defender, Alexandria, Virginia.

Booker: Good Fourth Circuit (??) Plain Error Case, Hughes

The defense has worried about plain error review after Booker, especially after Breyer's mysterious musings at the end of the remedial opinion. Amazingly enough, the Fourth Circuit is first out of the gate with a good plain error case, Hughes. Here are AFPD Fran Pratt's thoughts.


If you have not already seen it, the Fourth Circuit has issued a remarkably good opinion in which it found plain error in a sentence imposed pre-Blakely. The decision appears to be the first appellate opinion to address the application of Booker in any significant way. (I have also attached a case list that I have started, in the hope that it might be useful; this does include the 11th Circuit's opinion that Blakely / Booker still fall within the scope of appeal waivers.). The case is:

United States v. Hughes, No. 03-4172, ___ F.3d _____, 2005 WL 147059 (4th Cir. Jan. 25, 2005)

Available here.

Chief Judge Wilkins, former Sentencing Commission Chair and author of Hammoud, wrote the opinion. The relevant sections are succinct but forceful. Given that Wilkins wrote it, I think and hope that the opinion would be quite persuasive in other circuits.

The case, out of Maryland (not by the FPD office, though) involved bankruptcy fraud and perjury committed during the bankrruptcy proceeding. The defendant was sentenced to 46 months, derived from an Offense Level of 22 and Criminal History Category of I.
After first briefly describing the SRA and the Booker opinion (Part III.A), the Fourth Circuit first found error and found that it was plain.

Now, the good stuff (at least for those of us who are cynical about how Breyer wrote the final paragraph of his majority opinion, and/or those of us in the Fourth Circuit). The Fourth Circuit found that Hughes' substantial rights were affected. Importantly, albeit in a footnote, the Court stated:

The question for purposes of determining whether Hughes was prejudiced is not what the district court would have done had it imposed a sentence in the exercise of its discretion pursuant to § 3553(a). Hughes does not argue that the district court erred by failing to regard the guidelines as advisory. Rather, Hughes argues that the district court erred by imposing a sentence that was greater than the maximum authorized by the facts found by the jury alone. Therefore, the prejudice inquiry concerns what sentencing the court would have imposed had it not committed the error of going beyond the facts found by the jury in imposing a sentence under the mandatory guideline regime then in existence. This case does not present the question of whether a defendant suffers prejudice because a sentencing court fails to treat the guidelines as advisory in determining the sentence.
(Part III.B.3, .n.6 (emphasis added).)

Finally, in Part III.B.4, in what may be the best part of the opinion (again, at least for those of us who are cynical about how Breyer wrote the final paragraph of his majority opinion, and/or those of us in the Fourth Circuit) because it is the prong of the analysis that almost always gets us, the Fourth Circuit had "no difficulty concluding that an exercise of our discretion is warranted here." The Court explained, "Booker wrought a major change in how federal sentencing is to be conducted. . . . Under the record before us, to leave this sentence imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy 'the fairness, integrity or public reputation of judicial proceedings.'" In another important footnote (quoted below in full), the Court stated:

In determining whether the exercise of our discretion, it is not enough for us to say that the sentence imposed by the district court is reasonable irrespective of the error. The fact remains that a sentence has yet to be imposed under a regime in which the guidelines are treated as advisory. To leave standing this sentence simply because it may happen to fall within the range of reasonableness unquestionably impugns the fairness, integrity, or public reputation of judicial proceedings. Indeed, the determination of reasonableness depends not only on an evaluation of the actual sentence imposed but also the method employed in determining it.

Moreover, declining to notice the error on the basis that the sentence actually imposed is reasonable would be tantamount to performing the sentencing function ourselves. This is so because the district court was never called upon to impose a sentence in the exercise of its discretion. That the particular sentence imposed here might be reasonable is not to say that the district court, now vested with broader sentencing discretion, could not have imposed a different sentence that might also have been reasonable. We simply do not know how the district court would have sentenced Hughes had it been operating under the regime established by Booker.
(Part III.B.4, n.8 (emphasis added).)

The italicized language will, I think, be helpful to us who have been thinking about arguing that appellate review of reasonableness is akin to review for abuse of discretion.
While the opinion leaves open how the Fourth Circuit would apply plain error in other cases (e.g., where the district court had indicated it would give the same sentence, see footnote 5, or where there was evidence from which a jury could have found the enhancement had it been asked, etc), it is none the less an important one because it suggests that the Court may send back a large number of cases without second-guessing the district courts.

Fran Pratt, AFPD Alexandria, Virginia

Caballes: Despite dogged defense, Court endorses sniff search

Fourth Amendment/Dog sniffs: In Illinois v. Caballes, __ U.S. __, 2005 WL 123826 (Jan. 24, 2005), available here, the Supreme Court tolerates a drug dog sniff during part of a normal traffic stop.

Players: A drug dog and a speeding defendant.

Facts: A state trooper stopped Caballes for speeding. Illinois v. Caballes, __ U.S. __, 2005 WL 123826, *1 (Jan. 24, 2005). While the trooper was writing a ticket, a second trooper walked a drug car around the car. Id. The dog alerted to the trunk, and marijuana was found – the whole stop lasting less than twelve minutes. Id. Caballes was convicted and sentenced to twelve years in jail and a quarter-million dollar fine. Id.

Issue(s): "Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop." Id.

Held: "[T]he use of a well-trained narcotics-detection dog – one that does not expose noncontraband items that otherwise would remain hidden from public view,– during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement." Id. at *3.

Of Note: Justice Souter offers a vigorous dissent, questioning the fallibility of narcotics dogs. Id. at *4. He explained that a drug dog is not a perfect machine that should automatically create sufficient cause for a search. Id. at *4-*5 (Souter, J., dissenting). Justice Ginsburg would reject walking the dog around the car as an improper expansion of a Terry stop. Id. at *8-*9 (Ginsburg, J., dissenting). She warns, correctly, "Today's decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots." Id. at *9.

How to Use: We can anticipate narcotic dogs in highway patrol cars now that the Supreme Court has given the green light in Caballes. Note that there seems to be some limitations in the majority’s decision. First, the majority seized on the fact that the defense did not challenge the accuracy of the dog (a challenge which could made in future cases). Moreover, the original (traffic) stop was conceded to be lawful (although the dissenters think, highly suspicious). Finally, the dog sniff did not lengthen the traffic stop – had it done so, the search might have violated Terry.

For Further Reading: Dogs have their own web page of controlling law; see here. This law enforcement site has an index of decisions relating to police dogs. There are a number of law enforcement pages on police dogs; one describes a sniff as "probable cause on a silver platter" and describes how to anticipate and counter defense challenges; see site here.

Jonathan Soglin has thoughtful additional analysis at his blog, available here. Of particular interest is his strategies for contesting dog sniffs in the trial courts.


Steven Kalar, Senior Litigator N.D. Cal.

Booker: US v. Ranum, a defense roadmap

Booker sentences are now coming fast and furious, and a key challenge for the defense is proving structure to skittish district court judges unaccustomed to sentencing outside of the guidelines. Judge Adelman of Wisconsin provides a persuasive and thoughtful approach in this case, United States v. Ranum, 04-CR-31 (E.D. Wisc. Jan. 19, 2005) (available here.) Ranum is an important decision that will be useful for the defense suggesting sentencing structure in the post-Booker world.

Players: Judge Lynn Adelman, author of a key post-Booker decision.

Facts: Ranum was a bank officer who made a series of loans to a promising shipping company, but lied to the bank committee about the company’s reserves. Opinion at 7. He was charged with misapplication of funds and false statements. Id. at 8. After conviction at trial, he faced a guideline range of 37-45 months in custody. Id. at 9. Before sentencing, Booker was decided.

Issue(s): How does a federal court sentence a defendant after Booker?

Held: "In Booker, the Supreme Court held that Blakely v. Washington applied to the federal sentencing guidelines, and that the Sixth Amendment’s jury trial guarantee prevented judges from finding facts that exposed a defendant to increased prison time. As a remedy, a different majority of the Court excised the provision of the Sentencing Reform Act that made the guidelines mandatory, 18 U.S.C. § 3553(b). The remedial majority held that district courts must still consider the guideline range, 18 U.S.C. § 3553(a)(4) & (5), but must also consider the other directives set forth in § 3553(a). Thus, under Booker, courts must treat the guidelines as just one of a number of sentencing factors." Id. at 1-2. "I determined that the factors set forth in § 3553(a) fell into three general categories: the nature of the offense, the history and character of the defendant, and the needs of the public and the victims of the offense. I analyzed each category and in so doing considered the specific statutory factors under § 3553(a), including the advisory guidelines." Id. at 10.

"In the present case, after carefully considering all of the evidence and applying all of the § 3553(a) factors, I declined to follow the guidelines and instead imposed a sentence which was sufficient, but not greater than necessary, to satisfy the purposes of sentencing." Id. at 5. "I impose[] a sentence of twelve months and one day, followed by five years of supervised release." Id. at 13.

Of Note: The decision nails the new Booker responsibilities: "Sentencing will be harder now than it was a few months ago. District courts cannot just add up figures and pick a number within a narrow range. Rather, they must consider all of the applicable factors, listen carefully to defense and government counsel, and sentence the person before them as an individual. Booker is not as an invitation to do business as usual." Id. at 5.

How to Use: Ranum is a roadmap for effective use of the § 3553 factors. Judge Adelman found mitigating factors in the nature of the offense: the defendant was not motivated by personal gain, and the case was unusual in that the shipping company had promise. Id. at 11. He also found mitigating factors in the nature of the offender: he was fifty years old, with no record, health problems, and took care of his elderly and ill parents. Id. at 12. Community support also showed his good character, and this case had cost the defendant another job. Id. Moreover, imprisonment would do not good to the defendant and society. Id. at 13.

When using this case, it is important to emphasize that this is not some flight of fancy by a suspect liberal. The defendant still received imprisonment, because of the seriousness of the offense. Id. at 13. Ranum is not an aberration; it is the proper and careful application of the controlling law: 18 USC § 3553(a).

For Further Reading: Judge Adelman has a long history of doing the right thing, despite political fall-out. In 2003 he reversed a very high-profile state murder case because of jury bias – and took the heat for that decision. See article here.

Siegelbaum: first step to Blakely/Booker retroactivity

Judge Panner’s carefully reasoned opinion on retroactivity leaves some questions unanswered but starts the analysis with two important premises: Sanchez-Cervantes is no longer good law; and Schriro establishes the importance of reliability based on the reasonable doubt standard.

Oregon's Judge Panner has issued an important opinion on Booker/Blakely retroactivity in Siegelbaum, posted by Professor Berman here. The pro se petitioner filed a § 2255 motion for Blakely relief. Mr. Siegelbaum pleaded guilty to fraud charges pursuant to a plea agreement that included, the judge found, the upward adjustments for loss and role in the offense now challenged under Blakely. The parties also agreed to the 70 month sentence that Judge Panner eventually imposed.

Judge Panner’s step-by-step analysis provides a great starting point for future arguments on retroactivity. A critical step is rejection of the government’s argument that Schriro and Sanchez-Cervantes foreclose retroactive application of Blakely and Booker.

First, Judge Panner recognized the critical distinction between Schriro’s ruling that a court finding, beyond a reasonable doubt, adequately limited the risk of injustice and "the second component to Blakely/Booker that Schriro did not address, namely, that facts used to enhance a sentence, if not admitted, must be proven beyond a reasonable doubt rather than by a preponderance of the evidence." Judge Panner then cited to Winship and the cases giving retroactive effect to Winship’s protection of the reasonable doubt standard, concluding that "I cannot exclude the possibility that the Court might apply Blakely/Booker retroactively in some situations."

Second, Judge Panner recognized that Sanchez-Cervantes, the Ninth Circuit’s bar to retroactive application of Apprendi, is no longer controlling. "The panel relied upon a narrow interpretation of Apprendi that has now been repudiated in Blakely and Booker."

With no controlling precedent, the court found it unnecessary to reach a decision given the absence of contested facts. The key issue would be the use of the preponderance standard, rather than reasonable doubt, to decide contested enhancements: "Even assuming (but not deciding) that the rule announced in Blakely/Booker applies retroactively, relief would be limited to persons presently serving a sentence that was enhanced on the basis of contested facts that were not found to be true, beyond a reasonable doubt, nor admitted by the defendant."

Building on Siegelbaum, the rejection of Sanchez-Cervantes should require a second look at what appears to be a seamless syllogism requiring retroactivity -- an analysis that Judge Panner did not need to reach. In Tyler v. Cain, the Court found that a combination of decisions can result in a Supreme Court determination that the new rule applies retroactively. Winship and Mullaney were held to be retroactive in Ivan V. and Hankerson. Apprendi/Blakely/Booker all are based in Winship and Mullaney’s protection against less reliable fact finding when liberty is at issue. Schriro rejected the Sanchez-Cervantes suggestion that fundamental interests were not at issue. Therefore, the Supreme Court has already made the determinations that necessarily result in retroactivity.

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

Buckley v. Terhune

No. 03-55045 (1-25-05). The petitioner's relief granted by the district court was reversed. The 9th (Trott) held that petitioner knew the terms of the plea, which could be 15 to life, and that he wasn't promised a set 15 years. The state courts findings must be given deference. Bea, dissenting, argues that the majority focuses on the subjective intent of one of the parties rather than on the objective criteria as required by state law. the objective criteria indicates that there was an ambiguity, and it must be construed in favor of petitioner.

Garcia v. Carey

Garcia v. Carey, No. 02-56895 (1-20-05). Petitioner robbed a victim in the heart of gang-turf, and while with gang members. However, the state enhancement for gang-related requires that the robbery was in furtherance of the gang activities, and no evidence was presented on that issue. Wallace, dissenting, argues that the court needs to defer to the state's finding, and that under Jackson's "sufficiency of evidence" standard, there was evidence: after all, a robbery nets proceeds that furthers the gang, and he was with gang members.

Rose v. Palmateer

Rose v. Palmateer, No. 03-35937 (1-24-05). Petitioner can waive his ex post facto right, and accept a plea to "life without parole" as part of a plea agreement entered into on remand. The petitioner's acceptance of the plea was knowing and voluntary. The petitioner failed to raise his 5th amendment challenge to the confession in the state, and so it is barred here.

Almendarez-Torres: dead letter after Dretke v. Haley

The precedential effect of Almendarez-Torres fundamentally changed on May 3, 2004, when the Supreme Court, in Dretke v. Haley, found that both its validity and expansion raised "difficult constitutional questions...to be avoided if possible." Now statutes that increase maximums based on prior convictions, such as the illegal reentry statute (8 U.S.C. § 1326) and the Armed Career Criminal Act (18 U.S.C. § 924(e)), should be re-interpreted to require pleading and proof to a jury beyond a reasonable doubt under the doctrine of constitutional avoidance.

The line of cases leading from Apprendi to Blakely to Booker has left behind one beleaguered exception - prior convictions that raise the statutory maximum. In Almendarez-Torres, the 5-4 majority, relying on a distinction between elements and sentencing factors, did not require pleading in the indictment of the prior conviction that increased the maximum from two to twenty years. In his concurring opinion in Apprendi, Justice Thomas renounced his swing vote in Almendarez-Torres; in Ring, the Court abandoned any distinction based on sentencing factors. Booker ignored Almendarez-Torres in its recital of the precedent in this area.

The Court made express the deterioration of Almendarez-Torres in Dretke v. Haley, a habeas corpus case under 28 U.S.C. § 2254. In his challenge to a Texas recidivist sentence, of which he was actually innocent, Mr. Haley presented an alternative argument that the failure to afford trial rights on the priors violated the Constitution because Almendarez-Torres should be overruled or should not be extended to the additional fact that the priors were sequential.

The Haley court specifically applied the doctrine of constitutional avoidance to Almendarez-Torres, stating: "Respondent contends that Almendarez-Torres should be overruled or, in the alternative, that it does not apply because the recidivist statute at issue required the jury to find not only the existence of his prior convictions but also the additional fact that they were sequential. . . . These difficult constitutional questions . . . are to be avoided if possible." Given that sufficiency based on Winship was at issue in Haley, the Court would also have had to consider extension of Almendarez-Torres, a Fifth Amendment right to indictment case, to the trial rights being asserted by Mr. Haley.

Defenders have been challenging the application and extension of Almendarez-Torres to the amended 1326 and to the ACCA, only to face rejection based on the position that only the Supreme Court can overrule Almendarez-Torres (as in the cases starting with Pacheco-Zepeda). Now, under the rules set out in Miller v. Gammie, intervening Supreme Court authority has undermined the reasoning or "mode of analysis" of the cases that duck the question. Instead, the statutes must be construed in a manner that avoids a decision on the constitutional questions, as in Buckland, in which the Ninth Circuit reconstrued the federal drug statutes.

Neither the illegal reentry statute nor the ACCA forecloses construction consistent with Fifth and Sixth Amendment pleading and trial rights. Both have been amended to add more and more variables in the sequence and factual analysis necessary to consider the priors as predicates. Haley requires that the courts construe these statutes to avoid the serious constitutional question regarding the validitity of Almendarez-Torres and extension of that case.

The identical statutory Apprendi-based argument should apply to the firearms, illegal reentry, and other guideline enhancements keyed into prior convictions based on Blakely. This is another area where Booker, especially its ex post facto effect, will need to be played out.

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

Booker: reasonable doubt survives

After Booker, what standard of proof prevails at sentencing? Here is a Fifth Amendment argument that the "reasonable doubt" standard should still control based on statutory construction:
Booker is strictly a Sixth Amendment case. The reasonable doubt standard derives from the Fifth Amendment under Winship. The sentencing statutes do not set a standard of proof; the preponderance standard derives from Chapter 6 of the guidelines. Given the closeness of the decision on jury rights, the reasonable doubt standard may be a constitutional winner.
Think about the rationale of Summerlin v. Schriro - retroactivity did not apply because judge determinations beyond a reasonable doubt were sufficiently reliable. Then remember Justice Thomas's footnote 6 in his dissent to Justice Breyer's opinion in Booker, in which he quotes Chapter 6 regarding the Commission's belief that the preponderance standard applies, then says "The Court's holding today corrects this mistaken belief."
The serious remaining constitutional question regarding reasonable doubt opens a statutory construction argument that subsumes the actual constitutional question. On the same day Booker was decided, the Court issued its opinion in Clark v. Martinez, in which the Court expanded on the doctrine of constitutional avoidance as a rule of statutory construction. The federal sentencing statutes should be construed to avoid the difficult constitutional question on whether harsher sentencing -- whether presumptive or required except in extraordinary circumstances -- violated due process when the greater punishment was based on less than an admission or proof beyond a reasonable doubt.
This is just what the Ninth Circuit did in Buckland to save the federal drug statute. Even without Justice Thomas's note on the effect of the first part of Booker on Chapter 6, the statutory construction argument would require the guidelines and commentary to fall under Stinson, in which the Supreme Court found that statutes govern over inconsistent guidelines. The result should be that post-Blakely precedent is only reversed on the Sixth Amendment question, not on the reasonable doubt requirement.
As a practical matter, this construction would afford greater reliability and consistency in sentencing. Harsher sentencing would only occur based on the highly reliable standard (eliminating the evil of the tail wagging the dog in so many drug cases); appellate review for reasonableness would be based on the familiar standard from Jackson v. Virginia; and judges are probably more comfortable than juries with guilty clients arguing about the degree of culpability. As always, most cases will probably be resolved by negotiation.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon.

Cooks v. Newland

Cooks v. Newland, No. 03-56326 (1-19-05). As Faretta claims go, this ispretty interesting. the defendant was representing himself on one robberycharge; he has a lawyer on the second charge. the state moved to consolidate,which the court did, and the joint trial was held. The petitioner said thathaving the lawyer represent him on one robbery, while he was representinghimself on the other, undermined his Faretta right and implicated due process. He was "forced" to choose. The 9th affirmed the denial of the petition becausethere was no controlling precedent, and the state's interpretation wasreasonable. The affirmance was supported by the concession defense counsel madethat if the two robberies were indicted together, there wouldn't be a Farettaproblem.

U.S. v. Trevino

US v. Trevino, No. 02-10545 (1-18-05). This is a tax conspiracy/failure tofile appeal. The taxpayer and the tax preparer were in cahoots over listing thetaxable income. The tax preparer was investigator, plead guilty, and turned onthe tax payer. She offered up an "ignorance" defense (I didn't know) and onappeal, claims she should have received an instruction for a "good faithdefense." She didn't present the facts to support it. On the other hand, thegov't submitted an instruction that stated that it was a rebuttal presumptionthat a signed tax returns meant the tax payer knew what was in it. Thismisstates the law. It was error, but harmless. In dissent, Tashima would findthat it wasn't harmless because the jury verdict was unclear on whether it foundguilt relying on that presumption. He'd reverse counts one and three.

Booker: First habeas denial, Quiron v. United States

In Quirion v. United States, (available here), a magistrate recommends against granting habeas in a Booker petition -- the first known Booker habeas decision. The relevant portion of the opinion is reproduced below.

Sixth Amendment Right to Jury Trial

In Apprendi v. New Jersey, the United States Supreme Court concluded that the
due-process and jury-trial guarantees in the United States Constitution require that,
"[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." 530 U.S. 466, 490 (2000). In Blakely the Court applied
Apprendi to a state determinate sentencing provision that had analytical resonance with
the federal sentencing scheme. Thus, Quirion's belief that Blakely (cum Booker), might
offer him succor.

With respect to the merits1 of this ground, Quirion is out of luck for two reasons.
On the same day that Blakely was handed down, the United States Supreme Court
concluded tha t one of Blakely's direct ancestors, Ring v. Arizona, 536 U.S. 584 (2002) --
which applied the principle of Apprendi to death sentences imposed on the basis of
aggravating factors -- was not to be applied retroactively to cases once they were final on
direct review. See Schriro v. Summerlin, __ U.S. __, 124 S. Ct. 2519, 2526 (2004)
("Ring announced a new procedural rule that does not apply retroactively to cases already
final on direct review."). In the wake of Blakely, most courts that considered the
question have concluded that Summerlin answered the retroactivity question in the
negative vis-B-vis Blakely grounds pressed in timely 28 U.S.C. § 2255 motions. See,
e.g., Burrell v. United States, 384 F.3d 22, 26 n.5 (2d Cir. 2004) (observing this
proposit ion in affirming the District Court's conclusion that the movant was not entitled
to a certificate of appealability on the question of whether Apprendi applied
retroactively); Lilly v. United States, 342 F.Supp.2d 532, 537 (W.D. Va. 2004) ("In
Summerlin, the Court found that Ring v. Arizona, 536 U.S. 584 (2002), a case that
extended Apprendi to aggravating factors in capital cases, was a new procedural rule and
was not retroactive. A similar analysis dictates that Blakely announced a new procedural
rule and is similarly non-retroactive.") (citation omitted); accord Orchard v. United
States, 332 F. Supp, 23 275 (D. Me. 2004); see also cf. In re Dean, 375 F.3d 1287,

Fn. 1 As mentioned, Quirion did not take a direct appeal and this Sixth Amendment challenge is the type of challenge that should have been pursued through a direct appeal. Quirion attributes this default to his status as a lay person and his counsel's ineffectiveness.
1290 (11th Cir. 2004) ("Because Blakely, like Ring, is based on an extension of
Apprendi, Dean cannot show that the Supreme Court has made that decision retroactive
to cases already final on direct review. Accordingly, Dean's proposed claim fails to
satisfy the statutory criteria [for filing a second or successive § 2255 motion].").

The 'merits majority' in Booker expressly affirmed the holding of Apprendi
concluding: "Any fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of guilty
or a jury verdict mus t be admitted by the defendant or proved to a jury beyond a
reasonable doubt." __ U.S. at __, 2005 WL 50108, at *15; see also Sepulveda v. United
States, 330 F.3d 55, 63 (1st Cir. 2003) ("We hold, without serious question, that
Apprendi prescribes a new rule of criminal procedure, and that Teague does not permit
inferior federal courts to apply the Apprendi rule retroactively to cases on collateral
review."). The fact that Booker applied Apprendi to the United States Sentencing
Guidelines, as opposed to a state capital sentencing scheme, would not shift the tectonic plates of the Summerlin retroactivity analysis. What is more, Quirion is challenging the imposition of a sentence based on prior convictions and Booker expressly reaffirmed the carving out of prior-convictions from the Apprendi Sixth Amendment mandate. See United States v. Stearns, 387 F.3d 104, 107 (1st Cir.2004) (concluding that Blakely does
not support challenge to sentences enhanced due to prior convictions).

Conclusion

For these reasons I recommend that the Court DENY Quirion's 28 U.S.C. § 2255
motion.

Steven Kalar, Senior Litigator N.D. Cal.

Bouie: Booker ex post facto (due process) Case o' The Week

In light of ex post facto issues for clients seeking mandatory guidelines, and in honor of Martin Luther King day, this Case o' The Week memo discusses the 1964 Bouie decision. (Bouie can be viewed here). Bouie will be key for any ex post facto challenges to post-Booker sentencing. The latest defense musings, arguments and citations on Booker can be found on the blogs below.

Facts: Two black civil rights protestors sat quietly in a white-only restaurant in South Carolina. 378 U.S. at 348. There was no "No Trespassing" notice in the restaurant. The protestors were warned to leave, arrested, and ultimately convicted. Id. At the time of the arrest, South Carolina law only permitted trespassing arrests after receiving adequate notice. Id. at 350. The state Supreme Court, however, re-interpreted the law to permit a conviction after a warning and refusal to leave. Id.

Issue(s): Does Due Process preclude judicial interpretation of a statute to increase criminal penalties after an act? Phrased differently, is there an ex post facto-like challenge to judicial interpretations of statutes?

Held: "There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language." Id. at 352. "If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." Id. at 353-54. Convictions reversed. Id. at 363.

Of Note: When bringing a post-Booker challenge to an increased (higher than guideline) sentence, pay careful attention to the Bouie test (where the litigation will undoubtably focus): "If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect." Id. at 354 (emphases added). The dissenters’ surprise at Breyer’s novel remedy will help the defense when arguing this Bouie test. NOTE that this is not an ex post facto challenge, but a Due Process challenge where the logic of the Ex Post Facto Clause applies.

How to Use: The blogs below extensively discuss how to use Booker before favorable judges. Bouie comes into play with hostile courts, who look forward to exercising discretion to impose a sentence higher than the guideline range. In those cases, the defense can argue that pre-Booker conduct should be controlled by the mandatory guidelines.

Some AFPDs have made the a subtle (and difficult) argument that Bouie prevents higher than guideline sentences without all Blakely protections, but that lower than guideline sentences are now simply subject to the advisory guidelines. This may run into the USSG "one book rule" which prohibits picking and choosing favorable guidelines from two different sets of guidelines – but that rule is now only advisory, one assumes.

For Further Reading: Bouie is more than just a useful ex post facto case – it is an inspiring and important civil rights victory. The case was argued by Constance Baker Motley, who later became the first African American woman appointed to the federal judiciary. Judge Motley won nine out of the ten cases that she argued before the Supreme Court, and has had a distinguished career in the civil rights movement, the judiciary, and in the New York State Senate. For a healthy dose of inspiration, skip the Booker blogs and read Judge Motley’s bio here.

Steven Kalar, Senior Litigator, ND Cal.

Booker: Reassuring on remand

Some have worried about the ability to seek remand for cases on appeal, and have feared higher sentences in the district court on remand. Steve Hubachek of San Diego addresses both of those concerns in this e-mail.


I saw in the blog that people are fearful about bad resentencing in cases on appeal. It seems that it ought to be fairly easy to get a remand in the Ninth. In United States v. Castillo-Casiano, 198 F.3d 787, amended, 204 F.3d 1257 (9th Cir. 2000), (available here), the Ninth remanded for resentencing, on plain error, when the law changed on a particular ground for downward departure while Castillo's appeal was pending. The change was that during his appeal, the Ninth approved downward departures for less serious 16 point aggravated felonies. The defendant did not make such a request in the trial court, but the Ninth remanded anyway, emphasizing the discretionary nature of the departure decision. Now, of course, judges have far more discretion that that which justified the remand in Castillo-Casiano.

As for the fear factor, I think the same pressures that will cause judges to stick to the guidelines will discourage bad sentences on remand. But even if that sort of generalized concern does not work, the presumption of vindictiveness should. See generally United States v. Peyton, 353 F.3d 1080 (9th Cir. 2003) (available here). It seems to me that any time a judge gave a defendant less than the high end of the guideline range at the first sentencing, then that judge exercised his or her discretion in favor of a lower sentence that he or she could have given as a matter of pure discretion. How, then, could such a judge justify a higher sentence on remand without the presumption of vindictiveness applying? Similarly, even in high end cases, a judge who did not at least consider upward departures and conclude that they were unavailable would appear to be vindictive by giving a longer sentence on remand. Peyton itself makes clear that the presumption of vindictiveness is not a silver bullet. But I think it will provide a great deal of protection, particularly for those who did not receive the high end first time around.

Steve Hubachek, Supervising Attorney, Federal Defenders of San Diego, Inc.

Booker: Due Process, not Ex Post Facto, to Seek Refuge in Guidelines

An immediate Booker concern is a judge who now feels free to sentence above a guideline range. We have been considering ex post facto bars to that approach, arguing that the mandatory guidelines must be applied for offenses that precede Booker. Actually, however, in light of Bouie this may be a due process argument.


AFPD Beverly Dyer had the great catch of Bouie v. City of Columbia, 387 U.S. 347 (1964). The decision can be found here.

In that case, black civil rights activists were arrested for "trespassing" by sitting in a whites-only restaurant. Id. at 349. The South Carolina Supreme Court interpreted the statute, retroactively, to permit a trespassing conviction when a defendant was warned to leave -- but didn't. Id. at 350. That gloss did not exist on the statute at the time of the offense.

The Court reversed, based not on ex post facto but on due process concerns. "There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language." Id. at 352. The Court analogized this due process limitation on judicial action to the ex post facto bar on the legislature: "If a state legislature is barred by the Ex Post Facto Clause from passing a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." Id. at 353-54.

Here is the rub -- the Court articulated tests that may (or may not) fit with Booker:

"If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue it must not be given retroactive effect." Id. at 354.

We all can certainly argue that Booker was "unexpected" and cite the dissents for that authority. I predict, thought, that this is where the battle will be fought. In other words, is it a due process violation to impose a greater-than-guidelines sentence after Booker, when the offense preceded that decision? More specifically, was the Booker revision of the statute "unexpected and indefensible by reference to the law?" That might be a hard sell.
I haven't looked at authority that arose after Bouie -- would be an interesting project.

Steven Kalar, Senior Litigator ND Cal.

Booker: Fight "Great Weight" Given to Guidelines

The most immediate Booker problem is fighting the "status quo" assumption that a default reasonable sentence is the guideline range. Judge Cassell's decision, and other alternative factors at sentencing..


Prolific and speedy Utah District Judge Cassell has struck again, issuing the first Booker decision, where he gives "great weight" to the guidelines in the exercise of his discretion. (He issued the first Blakely decision as well). Here is a quote:

Having reviewed the applicable congressional mandates in the Sentencing Reform Act, the court concludes that considerable weight should be given to the Guidelines in determining what sentence to impose. The Sentencing Reform Act requires the court to impose sentences that "reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, [and] protect the public."7 The court must also craft a sentence that "afford[s] adequate deterrence to criminal conduct" and "protect[s] the public from further crimes of the defendant."8 Finally, the court should "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."9

The full Cassell opinion can be found here.

Rebel with a Cause FPD Barry Portman has rallied the ND Cal troops with the cry that the guidelines are just one of many factors at sentencing, and not the most important one at that. The blog below discusses other factors that should be considered. Here are helpful statutory cites for other factors:

* 18 USC 3553(a) factors
* 18 USC 3661 -- everything should be considered.
* 18 USC 3582: "recognizing that imprisonment is not an appropriate means of promiting correction and rehabilitation."
* Formerly prohibited factors in Chapter 5H of the guidelines.

These other (more equitable) factors for sentencing are discussed in more detail on the blog below.

As Barry has emphasized, the sentencing guideline range is not the "de facto" reasonable sentence. (Note that the guidelines are the last factor mentioned in 3553(a). In fact, because the guidelines do not consider these other equitable factors, they are by definition too high -- they do not consider the age of the offender, post-offense rehabilitation, sentencing discrepancies among districts, courts, or defendants, the additional punishment of deportation, mental health or addiction issues, lack of youthful guidance.

AFPD Hilary Fox has come up with the great idea of standardizing our sentencing memos, to discuss these other statutes and factors in every case. An alternative PSR mindframe, as it were. We're working on that framework here in the Northern District.

In sum, hell no to status quo.

Steven Kalar, Senior Litigator ND Cal

____________________Forward Header_____________________
Subject: Cassell post-Booker
Author: "David Beneman"
Date: 1/14/2005 9:53 AM

Judge Cassell (D UT) has issued what appears to be the first post-Booker
memo and it is TERRIBLE.

U.S. v. Wilson, http://www.utd.uscourts.gov/reports/wilson.pdf

Read and weep. The radical right has been planning for this.

David Beneman
Levenson Vickerson & Beneman
P.O. Box 465
Portland, ME 04112
phone:207-775-5200 ext. 104
fax: 207-772-1829

Booker: What's now available for sentencing

The guidelines are just one source for sentencing guidance -- and the least important one at that. Fight the status quo assumption that a guideline sentence is de facto reasonable, by relying on additional authority discussed below.


FPD Defender Barry Portman has rallied the troops, arguing that we should reject the "halter-training" that a guideline sentence is de facto reasonable. Additional sources for sentencing facts are discussed below.

1. Must consider the guidelines, but not only the guidelines. The Breyer majority opinion states that the "district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." See 18 USC §§ 3553(a)(4). United States v. Booker, __ U.S. __, 2005 WL 50108, *27 & n.1 (U.S. Jan. 12, 2005) (Breyer, J.) Therefore, at minimum the district court has to consider the guideline calculations and ranges.

Note, however, that 18 USC § 3553(a) lists the guidelines as the last among the factors. The first factor is "the natue and circumstances of the offense and the history and characteristics of the defendant." As Barry has emphasized, a court should determine the sentence first, then check its conclusions against what the guidelines recommend. The "holistic" sentence, that encompases all factors (including prohibited factors), should necessarily be lower, because the guideline range does not include previously prohibited or discouraged factors.

2. Section 3553(a) Factors: Look back to 18 USC § 3553(a) factors -- they are often more equitable than the guidelines. (These are also expressly endorsed in the Breyer opinion). Here they are:

* Nature and circumstances of the offense, and the history and characteristics of the defendant;

* Need for sentence imposed to:

- reflect the seriousness of the offense, promote respect for the law, and provide just punishment;
- afford adequate deterrence
- protect public from further crimes of the defendant
- provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner
- kinds of sentencing available

Etc.

18 USC § 3553(a).

3. Section 3661: Other statutory authority puts facts wide open for sentencing. Section 3661 of Title 18 states:

Use of information for sentencing

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

18 USC § 3661. Note again that Section 3661 is expressly endorsed in the Breyer majority Booker decision.

4. Section 3582: Still surviving is the wonderful language of Section 3582 of Title 18:

(a) Factors to be considered in imposing a term of imprisonment. -- The court, in determining whetehr to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.

18 USC § 3582.

5. Previously prohibited factors: Section 5H of the guidelines have a shopping list of previously prohibited factors that now may be available. These include the age of the defendant, education and vocational skills, mental and emotional conditions, physical condition, employment record, family ties and responsibilities, role in the offense, etc.

There is a welcome Pandora's box of previously prohibited factors that we can, and should, now argue at sentencing. For example, the fact that a defendant will be deported after a sentence can be considered, as can the unavailability of drug treatment in prison. Sentencing discrepancies among defendants, and among districts, is fair game. Post-offense rehabilitation is certainly included, as is charitable works and lack of youthful guidance. Moreover, refusal to consider these factors in sentencing is arguably "unreasonable" for appellate review, in light of the above authority.

Steven Kalar, Senior Litigator ND Cal.

Booker: Ex post facto argument to avoid upward sentencing

A bad judge will hammer your client without mandatory guidelines. Do ex post facto concerns permit you to seek refuge in the old guidelines?

Working groups have been discussing ex post facto protections after Booker. Here is one of the best descriptions thus far, from AFPD David Mccolgin.

Note this could be the best of two worlds: Sixth Amendment protections for enhancement facts, and advisory for sentences below the guideline range.

~~~~~

A group of us were just batting around the ex post facto argument that Steve referred to, and I am wondering what others think of it. It has taken me a while to even understand the argument (Felicia and Eric very helpfully explained it to me), but I think it goes something like this:

1) Blakely says the guideline max is the stat max for Apprendi purposes.

2) Blakely applies to the federal guidelines because by statute they are mandatory, not advisory.

3) Booker, in Breyer's remedial portion, has changed the statute by excising the mandatory language.

4) Booker therefore has effectively raised the stat max for Apprendi purposes from the guideline max to the max laid out in the statute.

5) Any increase in the penalty cannot be applied retroactively, under the ex post facto clause.

6) Therefore, for any defendants whose crimes were committed before Booker was decided, the guidelines are advisory to the extent that the judge can go below the guideline level, but ex post facto principles bar any sentence above the guideline max. -- And that guideline range must be calculated, under Stevens' majority opinion, based only on the facts proven to the jury and found beyond a reasonable doubt.

This argument would therefore be useful when we are afraid the judge will use Booker and the advisory nature of the guidelines to slam our clients.

-- David Mccolgin

Apprendi Authority, Booker Impact

ND Cal AFPD Dan Blank has prepared a very useful of Apprendi authority (particularly in the Ninth Circuit) that will be important as we sort out Booker's impact.

APPRENDI CASE LIST

Booker, 2005 WL 50108 (U.S. Jan. 12, 2005) USSG advisory in light of Blakely
Patterson, 2004 WL 1858114 (9th Cir. 2004) ff. Thomas (not Ameline)
Quintana, 2004 WL 2047358 (9th Cir. 2004) ff. Almendarez-Torres
Ameline, 376 F.3d 967 (9th Cir. 2004) Blakely applies to USSG
Ortega-Ascanio, 376 F.3d 879 (9‘04) can w/d plea for change in law
Blakely, 2004 WL 1402697 (‘04) Apprendi applies to sen guidelines
Summerlin, 2004 WL 1402732 (‘04) Ring is Teague-barred
Rodriguez-Gonzalez, 2004 WL 309088 (9‘04) 1325 req charging prior
Thomas, 2004 WL 112644 (9‘04) BRD sentencing after open plea
Toliver, 351 F3d 423 (9‘03) knowing drug type/quantity not element
Villalobos, 333 F3d 1070 (9‘03) must inform drug quantity BRD at plea
Banuelos, 322 F3d 700 (9‘03) no admit to quantity means lowest max
Hernandez, 322 F3d 592 (9‘03) Buckland still good law after Harris
Velasco-Heredia, 319 F3d 1080 (9‘03) cf. Harris no mandatory mins
Sattazahn, 537 US 101 (‘03) ff. Apprendi
Valensia, 299 F3d 1068 (9‘02) plea colloquy must address drug quantity
Ring, 536 US 584 (‘02) Apprendi applies to death penalty
Harris, 536 US 545 (‘02) Apprendi does not apply to mand mins
Minore, 292 F3d 1109 (9‘02) drug quantity must be submitted to jury
Jordan, 291 F3d 1091 (9‘02) Apprendi error not harmless if sen > max
Cotton, 536 US 625 (‘02) plain error applies to Apprendi indictment req
Patterson, 292 F3d 615 (9‘02) court can reject plea if not = Apprendi
Buckland, 289 F3d 558 (9‘02) Apprendi applies to 21 USC 841
Carranza, 289 F3d 634 (9‘02) govt need not prove knowing drug t/q
Mendoza-Paz, 286 F3d 1104 (9‘02) § 960 const under Buckland
Rodriguez, 285 F3d 759 (9‘02) jury finding req for drug quantity
Henry, 282 F3d 242 (3‘02) sentencing jury for drug type / quantity
Collazo-Aponte, 281 F3d 320 (1‘02) Apprendi applies to 924(c)
Tighe, 266 F3d 1187 (9‘01) juvenile prior not covered by Almendarez-T
Antonakeas, 255 F3d 714 (9‘01) conspiracy sentence violated Apprendi
Saya, 247 F3d 929 (9‘01) career offender sentence violated Apprendi
Apprendi, 530 US 466 (‘00) facts > stat max proved to jury BRD
Almendarez-Torres, 523 US 224 (‘98) priors not elements of 1326

We are no Booker Fanfan.

Initial thoughts and litigation strategies related to the Supreme Court's decision on January 12, 2005 in Booker/Fanfan.

Decisions available here. (124 pages in .pdf)

Some in the defense bar are apparently (and inexplicably) viewing the Steven's majority decision as a victory. I -- and many other defense folks -- view the Breyer majority decision as a major setback. Without delving into the philosophical details, here are some proposed litigation issues for the very narrow window we have before Congress acts.

* Prohibited factors now OK: The guidelines have listed a number of prohibited or discouraged factors. These include age, education and vocational skills, mental and emotional conditions, physical condition, employment record, family ties and responsibilities, role in the offense, military, civic, and charitable service, and lack of guidance as a youth. See USSG § 5H11.1- H1.12 (Nov. 2004). These should be fair game for sentencing now that the guidelines are "advisory." Also consider other factors, such as surrender of suppression motions, economic costs of incarceration, and other costs of conviction (such as deportation). If the guidelines are advisory, all of these factors should be fair game for arriving at the sentence.
The resulting sentence should be lower than the guideline range -- because the guideline range did not take into account these taboo factors.

Get "prohibited" or "discouraged" factors included in the PSR! There is now no bar to this, if the guidelines are advisory.

* "Custodial Zones" Gone?: If the guidelines are merely advisory, then the zones on the sentencing table (Zones A-D) should also be advisory. See USSG § 5B1.1 (Nov. 2004). Hence, is should theoretically be possible to get a non-custodial sentence in Zone D under advisory guidelines.

* Post-plea, pre-sentence cases: If you have a good judge, and you have sympathetic facts, you should be able to withdraw out of a plea agreement based on the intervening decision in Booker. In the Ninth Circuit, look at United States v. Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004) (permitting withdrawal of plea in light of intervening authority).

* Standard of proof at sentencing: Booker/Fanfan is silent on the standard of proof necessary for the judge to find a factor at sentencing. For example, what is the standard of proof necessary to find leadership role, and to impose a higher sentence because of it? We can argue preponderence, but some worry that this is now just the "reasonableness" standard from the appellate review findings of the case. One suggestion is that we dust off that old circuit line that began to develop higher standards. Here's a quote about the preponderance standard from one such Ninth Circuit case:

The Ninth Circuit held that preponderance standard is required for factors that would enhance a defendant's sentence but emphasized that such a standard is a "meaningful" one: it is a "misinterpretation of the preponderance test that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted." United States v. Restrepo, 946 F.2d 654, 661 (9th Cir. 1991) en banc.

Also look at United States v. St. Julian, 922 F.2d 563, 569 & n1 (10th Cir. 1990) (court should consider whether higher standard warranted; United States v. Kikumura, 918 F.2d 1084, 1100-02 (3d Cir. 1990) (clear and convincing standard required.).

As explained in an old Guidelines outline, "The court in Restrepo suggested that a clear and convincing standard might be appropriate when the relevant conduct would dramatically increase the sentence." Restrepo, 946 F.2d at 661.

More recently, the Ninth has articulated the six factors to be considered in considering whether the "clear and convincing" standard applies:

Valensia has failed to discuss the factors that should beconsidered in determining whether an enhanced sentence isextremely disproportionate to the initial sentencing guidelinerange. While we have recognized that the Due Process Clauserequires the application of a clear and convincing evidencestandard when an enhancement based upon uncharged con-duct has an extremely disproportionate effect on the length ofa defendant's sentence, we have not articulated a bright linetest for the application of this rule. Instead, we have consid-ered the disparity between the sentence that could have beenimposed under the initial sentencing guideline range and thesentence actually imposed on a case-by-case basis, withoutrelying on any single factor as controlling. This totality of thecircumstances approach to this question is consistent with theSupreme Court's instruction that "[d]ue process is flexibleand calls for such procedural protections as the particular situ-ation demands." Morrissey v. Brewer, 408 U.S. 471, 481(1972).[5] In discussing the extremely disproportionate effect of anenhanced sentence, we have identified the following factors:

One. Does the enhanced sentence fall within the maximum sentence for the crime alleged in the indictment? 4 See Restrepo II, 946 F.2d at 657, 662; Sanchez , 967 F.2d at 1385.

Two. Does the enhanced sentence negate the presumption of innocence or the prosecution's burden of proof for the crime alleged in the indictment? See Restrepo II, 946 F.2d at 657.

Three. Do the facts offered in support of the enhancement create new offenses requiring separate punishment? See Restrepo II, 946 F.2d at 657.

Four. Is the increase in sentence based on the extent of a conspiracy? See Harrison-Philpot, 978 F.2d at 1523-24.

Five. Is the increase in the number of offense levels less than or equal to four? See Hopper, 177 F.3d at 833.

Six. Is the length of the enhanced sentence more than double the length of the sentence authorized by the initial sentencing guideline range in a case where the defendant would otherwise have received a relatively short sentence? See Mezas de Jesus, _______ F.3d at _______; Hopper, 177 F.3d at 833.

United States v. Valensia, (9th Cir. 2000)

Of course, the real problem is that it is now difficult to gauge which factors a district court is relying upon to impose a greater sentence, and how those factors increased the sentence from what range. Phrased differently, in discretionary sentence who is to say what factor "more than doubled the sentence," when the initial guideline range is discretionary?

* De facto 11(c)(1)(C) [locked] agreements: Before Booker, we could run de facto Fed. R. Crim. Pro. 11 (c)(1)(C) agreements that locked the court into the sentence by agreeing to only a specific offense conduct alleged, and pleading to only that amount. (For example, by admitting only to a specified fraud amount). Today's Breyer decision decision pretty-much explictly rejects that approach. See United States v. Booker, at 14 (Breyer, J.) (rejecting Judge Stevens' approach because "any factor that a prosecutor chose not to charge at the plea negotiation would be placed beyond the reach of the judge enirely.")

If you've got one of those sweet Blakely deals running, take a close look and re-evaluate ASAP.

* Ex post facto considerations: What if you have the deal mentioned above, or you have a judge who will relish the chance at a punitive sentence unchecked by the guideline ranges? Is is possible to argue that the old guideline regime/system should apply, under the "One Book" rule and ex post facto considerations? Can the defense waive the consitutional limitations the guidelines and asked to be sentenced under the old, mandatory provisions on an ex post facto argument? Hard to say -- the Key Biscayne group batted this around a bit, but arrived at no decision on it. Thoughts are welcome.

* Slavish devotion to the guidelines: One thing that the Key Biscayne Booker working group considered was slavish devotion to the guidelines by district court judges. If the court follows the guidelines too closely -- never deviating from the guideline calculations -- they are a de facto mandatory system. We considered making this argument, and beginning to keep stats on specific judges to bring challenges if the judges never sentence below the guideline range.

* Drug cases: AFPD Dan Blank emphasizes that Booker doesn't change Buckland/Thomas on drug type and quantity, and those are enhancement facts that increase statutory maximums (instead of increasing a guideline range). Hence, it should still be possible to do a "Thomas" plea (at least, in the Ninth Circuit).

* 5K Cooperation Agreements: Paul Rashkind and DC folks note that this give the judge the ability the decide the extent of a departure under USSG § 5K1.1. In other words, as long as the government moves for a sentence for cooperation below the mandatory minimum the judge (under advisory guidelines) can depart as far as she'd like for the cooperation. (Note that the government will, however, still need to make the initial motion to get below a mandatory minimum under 18 USC § 3553(e), which wasn't affected by Booker.

* Waiver of Apprendi protections.: The Florida Defender appellate unit is worried about the many cases it has on appeal, where the clients will get thrown to the wolves on remand with only "advisory" guidelines. Is it possible that the constitutional infirmity to the USSG is only if the defendant asserts it? In other words, can a defendant waive the Sixth Amendment bar to mandatory guidelines and seek to be sentenced under mandatory guidelines? This would obviously tie into ex post facto concerns as well.

"Be careful what you wish for" is ringing particularly true here -- there are many judges before whom we will be very nostalgic for mandatory guidelines, now that the spectre of disretionary sentencing has arrived. This ex post facto theory, or defense invoking mandatory guidelines, may be our only hope in these hostile forums.

Steven Kalar, Senior Litigator Fed. PD ND Cal.

Missouri v. Seibert

Missouri v. Seibert, 124 S. Ct. 2601 (2004): Miranda: Belated Miranda warnings do not cure involuntary confession

Players: Plurality: Souter, Stevens, Ginsburg, and Breyer. Kennedy concurs in the judgment (potentially important!)

Facts: Defendant-mother was afraid she’d be prosecuted for neglect when her cerebral-palsy son died covered in bedsores. 124 S.Ct. at 2605. She conspired to destroy her son’s body by setting fire to a mobile home. Id. To make the fire look more plausible, the conspirators also left a mentally-ill teenager in the mobile home with the body, who was then burned alive. Id. at 2606.

The police questioned the defendant for thirty minutes and intentionally withheld Miranda warnings. Id. She confessed to leaving the mentally-ill teenager in the home, whom she knew would die in his sleep. Id. The cops then Mirandized the defendant, and got her to repeat the confession. Id. The trial court suppressed the first confession, but admitted the second, post-Miranda statement. The question-first, Mirandize later approach was a deliberate tactic employed by the police. Id.

Issue(s): "This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda . . . the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement." Id. at 2605 (citation omitted).

Held: "Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible." Id.

Of Note: The plurality opinion struggles to distinguish the Court’s earlier decision in Oregon v. Elstad. See id. at 2611-12. The plurality test in Siebert focuses on "a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first." Id. at 2612. "[T]he focus is on facts apart from intent that show the question-first tactic at work." Id. at 2613 & n.6.

How to Use: The plurality decision points out that this practice is much more common than one would think – it has been litigated heavily in California, and is in national law-enforcement training manuals. See id. at 2609 & n.2. The Seibert rule requires that we carefully question our clients; if one simply asks a client, "were you Mirandized" it is easy to miss the "question-first" tactic.

Note that the cop actually admitted his strategy in Siebert – an admission unlikely to be repeated. Fortunately, all opinions and the dissent emphasize that this is not a subjective test that depends on the motive of the officer.

For Further Reading: There is a fascinating behind-the-scenes story in the Seibert case, on the advocacy of Professor Charles Weisselberg of Boalt School of Law and his federal practice clinic. See here. The Professor’s and his students’ work is reflected in the reasoning of the Siebert opinion. Id.

Beck: Ninth "go ahead" to photospreads

United States v. Beck, __ F.3d. __, 2005 WL 17999 (9th Cir. Jan. 5, 2005): Suggestive photo-lineups, eyewitness identification procedures. Permits showing witness a suspect's surveillance photo before a photospread ID.

Players: Valiant effort by AFPD Christopher Schatz of Portland, Oregon, bad opinion by Wallace.

Facts: Michael Beck charged with bank robbery. Beck, 2005 WL 17999, *1. He moved, pre-trial, to challenge photo line-ups where three bank witnesses were first shown a picture of the bank robber from surveillance photos. Id. He also moved to exclude the testimony of a Probation Officer, who – testifying as a "lay witness," said he had a professional relationship with Beck and identified Beck in the bank photos. Id. All motions were denied and Beck was convicted. Id.

Issue(s): 1. "[W]hether the photospread, and the procedure of showing the surveillance photograph to the eyewitness before the photospread, were unduly suggestive." Id. at *2. "We also must access the extent of prior contact between a witness and a defendant sufficient to render the witness’s lay opinion admissible under [FRE] 701, in order to decide whether probation officer Glover was properly permitted to give lay opinion testimony." Id.

Held: 1. "We conclude that neither the photospread standing alone nor Agent Whipple’s procedure of showing the eyewitnesses the surveillance photo of the robber before each witness scrutinized the photospread was impermissibly suggestive." Id. at *3. 2. "We hold that a lay witness’s testimony is rationally based within the meaning of Rule 701 where it is based upon personal observation and recollection of concrete facts." Id. at *4 (internal quotations and citation omitted).

Of Note: Anyone who has litigated eyewitness identification issues knows of the chasm between the latest scientific and psychological studies in the field, and the courts’ tolerance of these procedures. Ironically, ADPD Schatz argued these studies and the court conceded that contrary social science research existed. Id. at *2 & n.2. The Court concluded, however, that such studies may be relevant in deciding what constitutes an impermissibly suggestive procedure, but did not convince the Court that the Beck procedures themselves "create a substantial likelihood of misidentification." Id.

The opinion is also noteworthy for permitting a Probation Officer to testify as a government identification witness. The PO had a whopping seventy minutes of exposure to the defendant, and yet was still permitted to testify that the bank robber in the surveillance photo was Beck. Id. at *5. Beck is a nice illustration of why the defense often questions the "neutrality" of the Probation Office.

How to Use: Beck will be standard issue for law enforcement, and we can now anticipate routine photospreads that follow the coaching of surveillance photos. Note that in Beck the defense introduced the testimony of Dr. Daniel Reisberg on why the photospread was suggestive. Id. at *5. See also Reisberg bio. Unfortunately, until the law catches up with the science, we’ll largely have to attack these eyewitness ID procedures on cross with defense experts.

For Further Reading: There is a wealth of psychological studies attacking photo line-ups and suggestive ID’s. One interesting and brief overview article compares the evolution (or devolution) of the law, and compares this to new science in the field. See overview article. Another excellent report – with statistical analysis – can be found at the Trowbridge Foundation site. See Trowbridge Report. Perhaps the leading expert on the field is Dr. Susan Loftus – refer to her work, "Eyewitness Testimony." See book web page.

Steven Kalar, Senior Litigator ND Cal FPD