Wednesday, June 29, 2005
Paulsen et al vs Daniels,
Congrats to AFPD Steve Sady of D. Ore for his dogged work on this.
US v. Barken
Bradley v. Henry,
US v. Gonzalez
US v. Camacho
US v. Nakai
Tuesday, June 28, 2005
Paulsen: BOP violation of the APA creates an opening for prisoners formerly disqualified from the DAP sentence reduction
In Paulsen v. Daniels, available here, the court held that the BOP violated the Administrative Procedure Act's notice-and-comment requirements in promulgating October 1997 rules that, as a matter of agency discretion, disqualified weapons possessors from eligibility for the sentence reduction. As a remedy, the prisoners disqualified before the October 1997 rules became final on December 20, 2000, are categorically eligible under the previous rules. Understanding the court's ruling, and applying it outside of the Ninth Circuit, require review of the litigation's history. The short question to ask is whether your client was determined to be ineligible for the sentence reduction before December 20, 2000, based on mere possession of a firearm. If so, there is a potential remedy.
In 1990, Congress mandated appropriate substance abuse treatment "for each prisoner the BOP determines has a treatable condition of substance addiction or abuse," including prison residential treatment lasting between six and twelve months. 18 U.S.C. § 3621(b) and (e). In 1994, Congress, recognizing prisoners’ general unwillingness to volunteer for such treatment, created an incentive to encourage federal prisoners to participate in DAP. The statutory amendment authorized reduction of incarceration for prisoners "convicted of a nonviolent offense" who successfully completed the program. 18 U.S.C. § 3621(e)(2)(B).
The BOP proceeded to promulgate various rules limiting the availability of this sentence reduction. The first 1995 regulation used the Section 924(c) definition of "crime of violence" to define "nonviolent offense." However, in program statements, the BOP disqualified prisoners with simple gun possession even though the case law categorically excluded such offenses from being "crimes of violence." The prisoners prevailed in the majority of jurisdictions that followed the Ninth Circuit's favorable decisions in Downey and Davis. This is important because in the jurisdictions in which we won this issue -- all except the Fourth and Fifth Circuits -- the default rule is that prisoners convicted under Section 922(g) and drug traffickers are categorically eligible under the statute and the 1995 regulation.
In response to the split in the Circuits, in October 1997, the BOP promulgated a new regulation and program statement disqualifying the same prisoners on a different ground -- as an exercise of BOP administrative discretion. The BOP provided no notice-and-comment period before putting the rules into effect; in fact, the rules were put into effect before they were published. The validity of the new rules resulted in another Circuit split. In the Ninth Circuit, the court held in Bowen that the new rule could not be applied retroactively to prisoners who had been determined eligible prior to the rule change. However, the prisoners who only challenged prospective application of the new rules lost in Bowen, becoming part of the Circuit split over whether the new rules were inconsistent with the statute. The Supreme Court in Lopez resolved the split on the substance of the new rules in favor of the BOP. But in footnote 6, the Lopez Court left open the the question whether the 1997 rules were promulgated in violation of the Administrative Procedure Act. On December 20, 2000, the rules approved in Lopez became final.
After Bowen and three more trips to the Ninth Circuit in different guises (Gunderson, Grassi, and Grier, 46 Fed.Appx. 433), Judge Haggerty of the District of Oregon finally reached the merits of the APA claim and granted 57 habeas petitions. The court found that the interim rule was invalid as to prisoners who had been disqualified during the period before the rules became final. Bohner v. Daniels, 243 F.Supp.2d 1171 (D.Or. 2003). Because the new rule was invalid, the prisoners became eligible under the former rule, which had never been properly repealed. The Paulsen decision strengthens and affirms Bohner.
In the Ninth Circuit, we should be advocating for any clients in the Downey and Davis classes who were denied eligibility (or had eligibility granted, then withdrawn) before the rule became final on December 20, 2000. Although the BOP has implemented Circuit Court decisions in the past by Operations Memorandums, the only way to be sure the benefit is available is by following the case administratively or by litigation, if necessary. Outside the Ninth Circuit, the same APA argument should benefit gun possessors disqualified under the 1997 interim rule who would have been eligible under the Circuit split -- prisoners in all Circuits except the Fourth and Fifth. In those Circuits on the wrong side of the split, for the prisoners to prevail, it would probably take a decision by the Supreme Court resolving the initial split in favor of the prisoners.
The most important thing to remember is that, without attorney advocacy, the likelihood of prevailing drops drastically. And remember that, even if the client has started supervised release, courts have been reducing or modifying the term of supervised release based on the BOP's unlawful denial of the incentive. Paulsen specifically recognized that the possibility of altered supervised release -- in the interest of justice under 18 U.S.C. § 3583(e) -- defeats BOP claims of mootness.
If you have a potential beneficiary of the Paulsen decision and need consultation or forms, you can contact Lynn Deffebach at the Federal Defender office in Portland, Oregon (firstname.lastname@example.org).
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
Sunday, June 26, 2005
The week brought that rarest of all things: a great wiretap decision. See United States v. Gonzalez, __ F.3d __, 2005 WL 1459569 (9th Cir. June 22, 2005), available here. In Gonzalez, Judge D.W. Nelson applies a rigorous Title III analysis to uphold a district court's suppression of wiretap proceeds. The opinion is a gold mine of good language harking back to the old days when Title III was actually enforced, and privacy rights were of real concern.
Players: Authored by DW Nelson, a senior judge who remembers that Title III actually has statutory limitations intended to protect privacy.
Facts: A long-term smuggling investigation focused on a bus company operating out of Arizona. Id. at *1. The feds had much success in infiltrating the smuggling ring in Arizona, but nonetheless secured Arizona wiretaps as well. Id. It then secured wiretaps in Los Angeles, in offices associated with executives of the bus firm. Id. at *2. The district court suppressed the L.A. wiretaps on necessity grounds, granting standing to executives who owned the buildings as well – even though they weren’t on the wires. Id. at *4. The government appealed.
Issue(s): 1. Did the defendant’s make a sufficient requisite showing to merit a Franks hearing? 2. On de novo review, did the wiretap applications establish Title III necessity? 3. Did the building’s owners, who weren’t on the wires, have standing to challenge the wiretaps?
Held: 1. "Because the defendants made an adequate initial showing of intentional or reckless material misrepresentations or omissions in the wiretap application, the district court did not err in holding a Franks hearing." Id. at *6. 2. "In our judgment, the facts attested to in the [wiretap] affidavit indicated that the government side-stepped its responsibility to use promising traditional techniques when it began to investigate the Blake Avenue office, and instead conducted only the most cursory investigation before seeking a wiretap. We hold that the necessity provisions require the government to do more." Id. at *8. 3. "[B]ecause the Gonzalezes were corporate officers and directors who not only had ownership of the Blake Office but also exercised full access to the building as well as managerial control over its day-to-day operations, they had a reasonable expectation of privacy over calls made on the premises." Id. at *12.
Of Note: Gonzalez breaks the chain of particularly bad wiretap law coming out of the Ninth Circuit, including McGuire, 307 F.3d 1192 (9th Cir. 2002), and Callum, __ F.3d. __, 2005 WL 1206805 (9th Cir. May 23, 2005). The opinion is crammed full of great language on the statutory restraints for Title III wiretaps, and the minimal showings necessary for the defense to earn a Franks hearing. It is also the clearest statement of the Title III necessity requirements, and the wiretaps standards of review, of any recent Ninth Circuit case.
How to Use: Any defense counsel tangled up in a wiretap should begin by poring over Gonzalez. In addition to providing a valuable foundation for the wiretap challenge, the case marshals all of the favorable authority requiring rigorous review of wiretap applications. See, e.g., id. at *4 (collecting good authority for the proposition that the defense is entitled to a Franks hearing upon a simple "substantial showing" of intent or recklessness on the part of the affiant.")
For Further Reading: The civil liberties group EPIC has a very useful site gathering various wiretap resources. See site here. EPIC reports that wiretaps were at an all-time high in 2004, and that not a single wiretap application was denied that year. Id. EPIC also provides links to interesting US Administrative Office statistics, which include wiretap applications in your district – applications that have not yet been publicly disclosed. Check those stats – interesting what one can glean about impending wiretap cases.
Steven Kalar, Senior Litigator N.D. Cal. FPD, website available at www.ndcalfpd.org.
Tuesday, June 21, 2005
US v. Bravo-Muzquiz
Brambles v. Duncan
US v. ACLU et al
US v. Sears
Sunday, June 19, 2005
Players: Hall writes, Reinhardt and Wardlaw join - but why? Couldn’t that pair have at least swung a mem dispo?
Facts: After a heroin conviction, Bahena-Cardenas was ordered deported before an IJ. Id. at *1. Because he was in a coma, the defendant wasn’t at the first day of the IJ hearing – but was represented by counsel. Id. After removal, Bahena-Cardenas reentered and was prosecuted under § 1326. Id. At trial, he argued he was actually born in the U.S. Id. His hearsay objections to a warrant of deportation (proof of physical removal) were overruled. Id. On appeal, he challenged under Apprendi the use of a deportation proceeding that was not held before a jury, and also challenged the due process shortcomings of that hearing. Id. He was hammered at sentencing. Id. at *3.
Issue(s): (Central issues out of many)
1. Does § 1326 unconstitutionally rely on a deportation proceeding that was not conducted before a jury (Apprendi)? Id. at *3-*4.
2. Is an executed "warrant of deportation" testimonial hearsay evidence barred by Crawford? Id. at *5.
3. Did due process shortcomings at the IJ hearing render the prior deportation invalid? Id. at *7.
1. (No Apprendi violation): "Section 1326 does not violate the rule of Apprendi . . . . The relevant element is whether Bahena-Cardenas was ordered deported, and the jury found that fact beyond a reasonable doubt." Id. at *3.
2. [Not a Crawford violation]. "We hold that the warrant of deportation is nontestimonial because it was not made in anticipation of litigation, and becauuse it is simply a routine, objective, cataloging of an unambigious factual matter. . . . We hold that the warrant of deportation in this case is nontestimonial and thus admissible." Id. at *5.
3. [Not a due process violation]. "[The defendant] is correct that due process requires physical presence in deportation hearings. . . . However, we conclude that the violation was not prejudicial. Bahena-Cardenas argues that holding the hearing without his presence was such an egregious due process violation that it is unnecessary to show prejudice. However, we have consistently held that defendants must show prejudice in order to invalidate a § 1326 conviction even when the due process violation is clear." Id. at *7.
Of Note: The combination of many creative defense challenges, and Judge Hall writing the decision, has produced one of the worst § 1326 opinions in years. First, the Apprendi challenge is actually dead on – a Ninth decision called Tighe found an Apprendi bar to the use of juvenile adjudications for an ACCA case, and that rationale is directly analogous. (See briefing at the ND Cal FPD web page brief bank). The issue merits a cert. petition. Second the 9th finds that an executed warrant of deportation is not testimonial under Crawford. Judge Hall analogizes the warrant to a birth certificate (?!?) or any other routine public matter. Id. at *5. This seems completely inconsistent with Crawford – the warrant is signed by a cop (INS agent), who witnessed an essential element of a §1326 case. In fact, the warrant really only becomes relevant for a future § 1326 prosecution! Beware of Bahena-Cardenas’ taint of other Crawford litigation on what constitutes "testimonial" evidence. Finally, note that even a due process violation arising from the defendant’s absence at an IJ hearing cannot hurdle the dreaded "prejudice" bar for a collateral challenge to a deportation.
How to Use: There are few silver linings in the cloud of Bahena-Cardenas. The Crawford issue, however, seems vulnerable – it merits raising the issue below and preserving appeals for possible Supreme Court review.
For Further Reading: Statistical wonks who analyze federal data have discovered that recently – for the first time in the history of the United States – the majority of federal prosecutions will be for immigration offenses. See TRAC website here (report anticipated soon). That fact, combined with cases like Bahena-Cardenas, will make for some grim litigation for federal public defenders in the upcoming years.
Steven Kalar, Senior Litigator N.D. Cal. FPD, website at www.ndcalfpd.org
Thursday, June 16, 2005
Judge Gertner on reasonable doubt
In United States v. Malouf, available here, Judge Gertner addressed sentencing rights where the defendant pleaded guilty to a drug conspiracy indictment, leaving the quantity to be determined by the judge through a jury waiver. Over government objection, the judge decided the case based on the reasonable doubt standard in two separate ways. First, applying the doctrine of statutory avoidance, the court construed Section 841 to create separate offenses, the elements of which must be proved beyond a reasonable doubt. Second, the court found in the alternative that, regardless of the Sixth Amendment, the Fifth Amendment's due process clause required that the "beyond a reasonable doubt" standard be applied. Judge Gertner's analysis -- especially her treatment of Harris -- should be required reading for federal criminal defense lawyers.
Judge Gertner's analysis of recent Supreme Court sentencing decisions in Malouf builds on her earlier decision in United States v. Pimental (available here). In Pimental, defendants in a mail fraud case were acquitted on counts that would have substantially increased the amount of loss for sentencing purposes. But in the pre-Blakely and pre-Booker opinion in Watts, the Supreme Court upheld a sentence increase based on acquitted conduct proved by only a preponderance. Judge Gertner layered a number of bases for her final sentence, including that Watts could not survive Booker, that reasonable doubt was the proper standard under the post-Booker regime, and that the government failed to establish loss by any applicable standard.
Judge Gertner's thoughtful analyses of sentencing in the post-Blakely and post-Booker era defy summarization; if you're looking for useful and interesting summer reading, search ju(gertner) & booker blakely for an excellent reading list. Beats the heck out of Silas Marner and Tess of the Durbevilles.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
US v. Bello-Bahena
Congrats to AFPD Ramzi Nasser of San Diego for the win.
US v. Zavala-Mendez,
Congrats to AFPD Kevin McCoy of Alaska or the win.
US v. Bahena-Cardenas
US v. Munoz
Congrats to AFPD Steve Hubachek of San Diego for the "elements" win.
US v. Holler
Monday, June 13, 2005
US v. Marquez
US v. Burt
Shannon v. Newland
US v. Harrington
US v. Sandoval-Lopez
US v. Davis
Sunday, June 12, 2005
Players: Win for Anne Walstrom of Federal Defenders of E. Wa. and Idaho.
Facts: Sandoval-Lopez was caught with fifteen pounds of heroin, having told an informant that he was a smuggler. __ F.3d. __, 2005 WL 1322902, *1. Defense counsel got a deal for misprison of a felony and a telephone count – with a combined seven year stat max, despite the much-higher exposure for the drugs. Id. In a written plea agreement, and during the plea colloquy, the defendant waived appeal – and then didn’t appeal after sentencing. Id. A year later, Sandoval-Lopez filed a habeas, alleging – among other errors – counsel’s refusal to file an appeal as instructed. Id. at *2.
Issue: "[W]hether defense counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to file a notice of appeal." Id.
Held: "Because the district court did not hold an evidentiary hearing [in response to the habeas petition] . . . we have to assume, for purposes of our analysis, that after sentencing Sandoval-Lopez asked his lawyer to appeal and his lawyer did not do as he asked . . . . As contrary to common sense as it seems, we are compelled by the law to reverse the district court." Id. at *3. "We are compelled to conclude that the district court needs to hold an evidentiary hearing to determine whether Sandoval-Lopez really did tell his lawyer to appeal and his lawyer refused though Sandoval-Lopez demanded it." Id. at *5.
Of Note: The Court is well-aware of the troubling consequences of this rule, analogizing it to a patient who demands a doctor conduct risky surgery with a low chance of success. "[E]ven though no one would think a doctor incompetent for refusing to perform unwise and dangerous surgery, the law is that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Id. at *4.
The Ninth turns to a poker analogy to illustrate Sandoval-Lopez's decision. "It may be very foolish to risk losing a seven-year plea bargain on an appeal almost sure to go nowhere, in a major heroin case. Nevertheless the client has the constitutional right . . . to bet on the possibility of winning the appeal and then wining an acquittal, just as a poker player has the right to hold the ten and queen of hearts, discard three aces, and pray that when he draws three cards, he gets a royal flush." Id. at *5 (citations omitted).
How to Use: One hopes that any written plea agreement that requires an appellate waiver offers significant consideration to the client in return. If that assumption is true, Sandoval-Lopez will probably do little to help most of our clients. Instead, it provides a mechanism for bad jailhouse lawyers to jeopardize good deals. Unfortunately, the decision encourages counsel to "paper the file," by documenting (apart from the plea agreement and plea colloquy) the defendant’s agreement to waive appeal. Ironically, that documentation may save the defendant from a significantly higher sentence somewhere down the pike, as a district court is forced to conduct a habeas evidentiary hearing on a failure to file an appeal.
For Further Reading: Which is more important, the client’s ultimate interest (like a shorter prison sentence), or his or her sovereignty (such as controlling decisions like appeals, which could jeopardize a very favorable plea agreement?) The tension between these two admirable goals – a tension familiar to any public defender – is well-illustrated in Sandoval-Lopez. For the classic example of this dilemma, revisit the tough defense decisions made during the Kaczynski trial. See article here.
Steven Kalar, Senior Litigator N.D. Cal. FPD, website available at www.ndcalfpd.org
Friday, June 10, 2005
BOP Litigation Update
For the past three years, we have been providing an annual update on BOP litigation issues. Attached here is the latest version covering the following areas:
- Miscalculation Of The Federal Good Time Statute By Seven Days For Every Year Of The Prison Sentence (page 2-3):
- The Termination Of The Federal Boot Camp Program (page 3-5);
- Deprivation Of Community Corrections Placement Based On The Department Of Justice’s Misreading Of The BOP’s Designation Discretion (page 5-6);
- Eligibility For The One-Year Sentence Reduction For Successful Completion Of Residential Substance Abuse Treatment Under 18 U.S.C. § 3621(e)(page 6-8);
- Credit For Time Served While Section 1326 Defendants Are In Administrative Immigration Custody (page 8-9);
- Constitutional Violations In Prison Disciplinary Proceedings (page 9);
- The BOP’s Tendency To Ignore State Concurrent Sentences And Administratively Convert Them Into De Facto Consecutive Sentences (page 9-12);
- Challenging BOP Misadministration Of The Sentence Through A Petition For Writ Of Habeas Corpus Under 28 U.S.C. § 2241, Usually After Exhaustion Of Administrative Remedies (page 12-14);
- Designation And Red-Flag Issues In The Presentence Investigation Report (page 14-17).
There are two recent litigation developments that should also be noted, one dealing with the BOP’s sex offender regulation and program statement, the other with anticipating problems regarding clients’ medical issue while in custody.
In Simmons v. Nash, 361 F.Supp.2d 452 (slip opinion here), a New Jersey district court judge entered declaratory and injunctive relief against the BOP’s interpretation of the sex offender notification statute. Under 18 U.S.C. § 4042(c), the BOP provides notice and requires registration for prisoners "convicted of any of the following offenses," listing federal sex crimes and "any other offenses designated by the Attorney General as a sexual offense." The BOP, by means of a regulation and program statement, expanded the statutory language beyond the offense of conviction to include any prior state convictions for sex offenses. Immanuel Simmons, litigating pro se, insisted that his 1983 prior state court conviction could not trigger the federal notice and registration requirements.
The district court agreed. The court held that the statute unambiguously limited its application to the offense of conviction. The court relied heavily on the Fifth Circuit’s ruling in Henrikson v. Guzik, which construed the adjacent provisions of § 4042(b) as applying only to the offense of conviction for crimes of violence and drug trafficking. In the absence of legislative authorization, the BOP lacked the power to expand the scope of sex offender notice and registration, by regulation and program statement, beyond the offense of conviction.
In another district court opinion, Massachutses District Court Judge Nancy Gertner demonstrated that an ounce of prevention is worth a pound of cure. Defenders too often receive frantic calls from prisoners and their families regarding declining health and untreated medical conditions in federal prisons. In United States v. Pineyro, 2005 WL 1177833 (slip opinion here), the defendant, after fifteen month of pretrial detention, faced a 46-57 month guideline range for being a felon in possession of a firearm. Mr. Pineyro suffered from a complex and rare medical condition – heterotopic ossification – a disease causing excessive and painful bone growth.
Defense counsel moved for a downward departure under U.S.S.G. § 5H1.4, putting on detailed evidence regarding the physical infirmity and the suffering caused by lack of adequate treatment in pretrial detention. The critical piece of the analysis was that – as it so often does – the BOP gave bland assurances that the BOP "can provide the necessary and appropriate treatment for Mr. Pineyro." Interestingly, the BOP opinion came after a BOP medical study ordered by the court under 18 U.S.C. § 3552(b), over defense objection. Nevertheless, the court imposed a time served sentence.
Judge Gertner analyzed her sentence both under the guidelines and under the § 3553(a) post-Booker advisory guidelines. On the medical issue, the court rejected the blithe assurances so often heard regarding our medically vulnerable clients, stating:
"The BOP has not remotely met its burden of showing that it can provide the defendant with 'needed...medical care, or other correctional treatment in the most effective manner.' 18 U.S.C. § 3553(a)(2)(D)(italics supplied). It offered no treatment plan comparable to what Pineyro is presently receiving. Its conclusion that it can provide the "necessary and appropriate treatment" is not only vague, it does not meet the statutory requirements (that Pineyro receive 'the most effective' treatment)."
A timely reminder of the importance of addressing our clients’ medical conditions up front to avoid the difficulties of finding a remedy later.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
Tuesday, June 07, 2005
Collier v. Bayer
US v. Fay
US v. Ameline
Sunday, June 05, 2005
Saving its own resources by unceremoniously kicking appeals back to the district court, the Ninth adopts the Second Circuit's economic, expedient, and arguably unconstitutional "quick look" procedure for Booker pipeline cases. See United States v. Ameline, __ F.3d __, Slip. op. at 1 (9th Cir. June 1, 2005) (en banc), available here. This disappointing decision demands a united front from the defense bar, with systematic allocution challenges (among others) to the Ninth's "quick look" option.
Players: Terrifically hard-fought case by Defender attorneys Steve Hubacheck of San Diego, and Anthony Gallagher of Great Falls, Montana. Kudos to Judge Wardlaw for her blunt, honest, and well-reasoned dissent.
Facts: Ameline pled guilty to conspiring to distribute meth, but didn’t admit the amount. United States v. Ameline, __ F.3d __, Slip. op. at 4 (9th Cir. June 1, 2005) (en banc). He disputed the government’s claim that he was responsible for 1 ½ kilos – and also disputed a PSR bump for firearms. Id. The court treated the PSR as "prima facie" evidence of the allegations, id. at 5, and found the drug and gun enhancements by a preponderance of evidence, id. at 6. Ameline received a mid-range sentence of 150 months.
Issue: "Left unresolved by Booker is the question of what relief, if any, is to be afforded to a defendant who did not raise a Sixth Amendment challenge prior to sentencing." Id. at 2.
Held: "As described in more detail below, we hold that when we are faced with an unpreserved Booker error that may have affected a defendant’s substantial rights, and the record is insufficiently clear to conduct a complete plain error analysis, a limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory. If the district court responds affirmatively, the error was prejudicial and failure to notice the error would seriously affect the integrity, fairness and public reputation of the proceedings. The original sentence will be vacated by the district court, and the district court will resentence the defendant. If the district court responds in the negative, the original sentence will stand, subject to appellate review for reasonableness. . . . In essence, we elect to follow the approach adopted by the Second Circuit in [ ] Crosby . . ." Id. at 3 (internal citation omitted).
Of Note: The Ninth lays out the process for remand: first, Ameline applies to all cases pending on direct appeal, including cases where the briefs do not raise a Booker issue. Id. at 27. Next, there’s an opt-out provision for the defendant. Id. at 28. If the Ninth can’t determine plain error, it will remand for the district court to determine whether the sentence would have been "materially different" in an advisory system. Id. at 28. At minimum, counsel should be permitted to submit their views, in writing. Id. A district court that finds the decision would not have been materially different in an advisory system should make that record, and face an appeal for "reasonableness." Id. If the sentence would have differed materially, the original sentence shall be vacated and the court should resentence with the defendant present. Id. at 29. Or, everyone can simply agree to proceed directly to a resentencing proceeding. Id. at 29 & n.10.
Ameline’s treatment of the burden of proof at sentencing is discouraging: "In resolving the factual dispute, the district court must continue to apply the appropriate burdens of proof, consistent with Howard." Howard embraced the "preponderance" standards for Guideline adjustments and departures. See United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). Note, however, that post-Howard Ninth decisions raised the possibility of higher burdens – and those cases presumably remain good law. See, e.g., United States v. Johansson, 249 F.3d 848, 853-54 (9th Cir. 2001).
How to Use: Contest any district court "quick look" done outside of the presence of the defendant, based on a defendant’s structural right to allocution. See United States v. Gunning, 401 F.3d 1145,1149 (9th Cir. 2005), available here. Although the allocution issue was pressed aggressively at oral argument, the Ninth entirely avoids the issue entirely in its en banc decision. This is a particularly remarkable omission, in that the majority cites Gunning three times in the majority decision for a different proposition! Every defendant with a pipeline case should raise this allocution challenge in the district court and take the case back up to the Ninth. Look for upcoming sample briefing and discussion of this challenge in the 9th Circuit blog and the ND Cal FPD web page in the upcoming weeks.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org