Mujahid v. Daniels

No. 03-36038 (6-27-05). Petitioner takes another run at the way BOP calculates "good time." The 9th had previously ruled that the BOP's way of counting good time, i.e., waiting for a year to pass, was not unreasonable even though it shorted the inmate of not insubstantial credit because the calculation was to apply after service of the sentence is served and not as the sentence is imposed without regard to time served. Petitioner takes another run at it, arguing that the BOP calculation should only be used for the last year of the sentence and that rule of lenity undermines precedent. The 9th upholds precedent, Pacheco-Camacho, and that the BOP's reading is not unreasonable.

Paulsen et al vs Daniels,

No. 03-35337 (6-27-05). The BOP ran afoul of there requirements of the Administrative Procedure Act (APA) in the formulation of an interim regulation concerning eligibility for early release for federal inmates who had completed a drug abuse program. Prisoners who were felons in possession were classified as "violent" offenders and deemed ineligible. Thew 9th found that the BOP plainly violate the APA in its rush to get these interim regs out by issuing the rule first and seeking comment later. The BOP argues that it was harmless, but the 9th emphasizes that the APA is designed to get public feedback, and that the terms are strictly adhered to. The petitioners also have standing. The result of this is to make the petitioners eligible for relief as the interim rule was found to be invalid. The finial regs however, closes the window on those that would get relief as it is not invalid. Only a few felons-in-possession will benefit.
Congrats to AFPD Steve Sady of D. Ore for his dogged work on this.

US v. Barken

No. 03-50441 (6-27-05). The 9th affirms a conviction for unlawful transportation and disposal of hazardous material without a permit. the main issue concerns the denial of a motion to dismiss for preindictment delay. The defendant had been prosecuted by a state court five years earlier and that the resolution there covered both civil and criminal aspects, and clean up. The defendant argues that no federal interest was present in this second prosecution. The 9th found this pretty easily. The 9th also found that the defendant didn't meet the requirements for preindictment delay dismissal, notably actual and non-speculative prejudice. The second part requires that such delay offends the notion of due process and fairness. The defendant couldn't meet the prongs of this test. There also wasn't a basis to dismiss under Fed R Crim P 48.

Bradley v. Henry,

No. 04-15919 (6-22-05). This is a habeas in which the petitioner, at the state trial, was not present when the court discussed with counsel the motion for new counsel. The 9th found this a critical stage, and that the petitioner must be present. The petitioner was facing felony murder charges, among other offenses, and possibly the death penalty. She went through a string of counsel, some hired by her controlling father, and counsel invariably would have a falling out, or not get paid, and be replaced. The court got impatient. At one hearing, counsel spoke of being at odds with petitioner, perhaps because of the threats, and moved for replacement. It was this meeting, in chambers, that the petitioner was not present at. The 9th found that the state courts had gone against Supreme Court holdings. Indeed, the 9th (Noonan) spent a great deal of time discussing what is or isn't precedent, dictum, and how to discern what is explicit and implicit. The prior cases as to what is a critical stage were discussed and contrasted. Ferguson, concurring, wrote to stress the Sixth Amendment right to choose counsel. Rymer, in dissent, would find that the state courts had acted reasonably and that the circumstances were such (a lot of lawyer churning going on) that the petitioner didn't have to be present

US v. Gonzalez

No. 04-10041 (6-22-05). The 9th upheld a suppression of wiretap evidence. The district court suppressed the evidence because the US Atty's Office (D.Az) played fast and loose with the facts in the affidavit for a wire-tap, downplaying all the investigative steps it could have taken, such as surveillance, infiltration, and even search warrants, in this investigation of a bus company allegedly smuggling in illegal aliens in a sophisticated scheme. The gov't had actually had success in some of the investigative tools, but the anted to listen in. The court said that violation of the statute was clear, and suppression was the remedy. In reviewing the suppression, the 9th agreed. The wiretap statute has certain clear requirements, and the purpose is to limit the use of wiretaps., Here, the gov't was not exactly forthcoming in all the steps it had taken, and the success, and so the 9th upheld the district court's finding that a lot of little steps could have been taken. Given the recent spate of wiretap cases, in which the 9th admonished the gov't for sloppiness but upheld the application, this is a rare instance of the courts holding the gov't to the requirements of the statute, and their obligation to be forthright, in suppressing.

US v. Camacho

No. 04-10078 (6-24-05). Defendant was a federal civilian employee serving as an Air Force Reservist. He went into the PX to purchase a home theatre system and came out with two. The second one was stolen. He was caught and sanctioned by the base commander. The sanctions were pretty severe. Nonetheless, the feds brought a misdemeanor charge against him. Defendant alleged double jeopardy. The 9th held, joining other circuits, that the commander's actions were akin to employment sanctions, and that they didn't constitute criminal punishment. The employment context differed from the criminal context, and there was no double jeopardy bar.

US v. Nakai

No. 03-10485 (6-27-05). An ugly case from the Navajo Rez. Defendant and codefendants charged with brutal murders of two victims in a car-jacking/robbery. Issues on appeal concern the jury pool composition. The trial was moved from one division (where Indians made up 16+% of the pool) to another. The court sought to use the same jury list despite the switch, and called the prospective jurors, but a significant number didn't get the message. Of the 34 prospective jurors not contacted, 14 were Indian. The 9th found that there was no systematic violation of the Sixth Amendment, and that the record didn't support any disparate impact. The 9th also considered the use of a conspiracy/Pinkerton instruction in an aiding and abetting context. There was no con conspiracy charged. The 9th found error, but that it was harmless. The 9th did make it clear that "it is error to use a Pinkerton instruction in a case in which the indictment does not allege a conpsiracy."

Paulsen: BOP violation of the APA creates an opening for prisoners formerly disqualified from the DAP sentence reduction

The Ninth Circuit ruled in favor of federal prisoners yesterday, culminating a decade of litigation regarding eligibility for the one-year sentence reduction authorized by 18 U.S.C. § 3621(e). The statute creates an incentive for prisoners who successfully complete the Bureau of Prisons's residential drug and alcohol treatment program (DAP). Although the statute only makes the sentence reduction available to prisoners convicted of nonviolent offenses, the BOP expanded the disqualification to prisoners who did not commit a categorical "crime of violence," including prisoners convicted of being felons in possession of a firearm and drug traffickers with a gun bump.

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 (lynn_deffebach@fd.org).

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

Case o' The Week: D.W. a Title III hero in Gonzalez

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.

US v. Bravo-Muzquiz

No. 03-50505 (6-16-05). Defendant was an illegal alien who was challenging his removal in immigration court. he got released on an immigration bond. Being a fan of the Constitution, and especially the Second Amendment, the defendant sought to be a true American and arm himself. In so doing, he ran afoul of the gun laws that prohibit illegal aliens from possessing guns. On appeal defendant argues that his release on bond, and his litigation, removes the status of being illegal for this charge. "Nope," rules the 9th. The defendant's status was illegal to start with, the statute is clear, and policy reasons make it clear that Congress wouldn't want aliens arming themselves at the moment they may be asked to leave.

Brambles v. Duncan

No. 01-55716 (6-17-05). The 9th applies Pliler v. Ford, 124 S. Ct 2441 (2004), to this case and dismisses the petition as time barred. Petitioner was convicted in state court. He eventually filed a federal habeas, which had one exhausted claim and two unexhausted claims. The district court informed the petitioner he could either proceed with the exhausted claim, and dismiss the two unexhausted claims, or dismiss the petition and go back and exhaust the two other claims. The petitioner chose to dismiss and exhaust. When he got back to federal court, after exhausting, his petition was dismissed as time barred. Whoa, said the 9th, he wasn't informed of the consequences, and so he should have a chance to litigate in federal court. The Supremes, in a similar case (Pliler) had held that a district court didn't have to inform the petitioner of the consequences or risk. The district court could present with options; the court just couldn't mislead. The reasoning was the need to keep the court impartial. Applying Pliler here, the 9th found that the district court didn't mislead the petitioner in options, and there was no other basis for equitable tolling, and so the petitioner was out of luck.

US v. ACLU et al

No. 02-50355 (6-17-05). The 9th (Kleinfeld) reverses the district court's finding that the designation of an organization as "terrorist" thus leading to a charge of aiding terrorism under 8 USC 1189(a)(1) was unconstitutional. The 9th, in upholding the charge of aiding a terrorist organization against a facial challenge, finds that Congress was within its power to have the DC Circuit determine challenges to the designation. The 9th also finds no first amendment violation given the procedures and protocols established by the executive branch in such determinations, and the threat posed.

US v. Sears

o. 03-10573 (6-20-05). This is a bad warrant case. The San Francisco Police gave a warrant to a judicial officer to search the premises of a suspected drug dealer. The judge signed, and the police went to make copies. Instead of using a photocopier, the officer printed out a different form from the computer, that had additional words. Specifically, the phrases were "or nearby" and "not limited to." The district court suppressed the evidence seized under those additional words -- which was nothing, zilch, zero. On appeal, defendant argued that the acts of the police rendered the whole warrant bad. The 9th (W. Fletcher) disagreed, and affirmed. The 9th was troubled (aren't courts frequently "troubled" before they affirm?) by the sloppiness of the police, but found that there was no intentional acts by the officer, and that the harm was harmless. Kozinski, dissenting, takes a darker view, wondering why the police would not photocopier but instead print out a new document? Moreover, Kozinski argues for the exclusionary rule, reasoning that the only way to stop such sloppiness is by a harsh penalty, which should be applied here.

Case o' The Week: No Hall Pass for 1326 Cases

One short opinion by Judge Hall undercuts (or eliminates) a number of Section 1326 (illegal reentry) defenses. See United States v. Bahena-Cardenas, __ F.3d __, 2005 WL 1384353 (9th Cir. June 13, 2005), available here. Of broader concern, the decision rejects a solid Crawford challenge (in an unpersuasive analysis) -- a swipe that may have a broader impact for future hearsay litigation.

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.

Held:

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

Judge Gertner on reasonable doubt

Since Booker, an argument with strong traction and gut appeal has been that, where disputed facts result in a higher guideline range, the judge should resolve the dispute based on the reasonable doubt standard (see blogs here, here, and here). Judges at seminars and in opinions have communicated the need to apply the high standard both as a matter of confidence for the increased sentences and of respect for the judicial function. In two recent scholarly opinions, Massachutses District Judge Nancy Gertner explains why she applied the reasonable doubt standard to quantity under the federal drug statute and, in an earlier case, to enhancement based on acquitted conduct.

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

No. 04-50013 (6-15-05). In another "official restraint" case, and in another defense win, the 9th reverses a 1326 conviction. This reversal though was not for a judgment of acquittal but for the failure of the court to give an "official restraint" instruction that comported with the law and theory of defense. Here, defendant was observed in a group of seven by one border agent in his scope. The agent told another agent that he saw the group and ha them under surveillance. The first agent didn't testify but the second did. It was unclear whether the first agent had always had the defendant under surveillance, which is a requirement for the "official restraint" defense in a "found in" prosecution. This evaded a Rule 29 judgment of acquittal. However, there was evidence that he might have been, and so the instruction crafted by the defendant should have been given. (Note: the instruction is a good one and can be used as the gold standard).
Congrats to AFPD Ramzi Nasser of San Diego for the win.

US v. Zavala-Mendez,

No. 03-30321 (6-15-05). This is a 1326 case, where the defendant presented himself at a border crossing in Alaska, lied about a green card, but gave his true name, and was found to have been previously deported. The gov't charged him with being "found in" the US. This was wrong. He should have been charged with "attempt to enter" and as such, his Rule 29 motion should have been granted. The defendant's car was observed by the border patrol as it drove from the Yukon territory to the US on the Alaskan highway. The headlights were observed, although the car itself dipped out of sight in a depression. The 9th (Kleinfeld) explained that the "official restraint" or "surveillance cases", where the defendant is constantly observed, is not they proper line, but rather it should be the presentation cases, such as an airport, where the defendant presented himself at the entry station "attempting" to get in. He wasn't sneaking or fence jumping; he was presenting himself. Hall dissents, arguing that once the defendant sets foot in the US, he is "found in" the US unless he was under constant surveillance by officials. This wasn't the case here because of the disappearance of the car.
Congrats to AFPD Kevin McCoy of Alaska or the win.

US v. Bahena-Cardenas

No. 03-50479 (6-13-05). In an important Crawford case, the 9th (hall) concluded that a warrant of deportation is "nontestimonial because it was not made in anticipation of litigation, and because it is a simple, routine, objective, cataloging of an unambiguous factual matter." This arose in a 1326 prosecution where the gov't didn't call the officer who supposedly witnessed the defendant's deportation. The defendant objected to another agent's testimony about the deportation as hearsay. The 9th found that the warrant was a like a birth certificate or other public record; it didn't have the on-the-scene subjectivity (note: although it is supposed to note an on the scenes event). The 9th was forced to rule this way or the implications would be that the gov't had to locate agents that signed the warrant and get them to trial. It just wasn't going to happen. This case had other interesting features, including witnesses that the defendant was actually born in the US, including someone that supposed to have witnessed the birth, records and so forth. Of course, the gov't had contradictory evidence, and documents. The 9th affirmed the conviction, further finding that the court didn't abuse its discretion in barring a Mexican cultural export about supposed "fake" Mexican certificates.

US v. Munoz

No. 04-50086 (6-14-05). The defendant was convicted of alien smuggling for profit and failure to present to an immigration officer. The defendant came across the border, appeared to be sweating, looked nervous, and the van had a non-factory cover along the bottom. Of course this lead her to being referred to secondary, where a search revealed two Chinese under the floorboard. At trial, the jury instruction stated that the gov't didn't have to show or prove financial gain. Wrong, said the 9th. This fact leads to an enhanced penalty, and so: "We hold that, in order to impose 1324(a)(2)(B)(ii) enhanced penalties on a defendant prosecuted as a principal, the government must prove she intended to derive a financial gain from the transaction." This error was not harmless given the issue of profits. The 9th though on the other counts found no distinction between the "come to" and "enter" in terms of permission. The 9th also brushed aside the arguments for judgment of acquittal and sufficiency going to the defendant's state of mind as there was evidence that the jury could have used. The 9th finally found no abuse of discretion in allowing in the officer's reasons for referring defendant to secondary.
Congrats to AFPD Steve Hubachek of San Diego for the "elements" win.

US v. Holler

No. 03-50129 (6-13-05). This is a case arising from a reverse "sting" operation. The defendant wanted to buy lots of cocaine and he was put in touch with the DEA by a CI. Suffice it to say that when the defendant came to the hotel room in Ontario, California, he had to bring the money in one of those roll suitcases. That is when he was popped. On appeal he makes a stretched argument that because he intended to distribute the drugs outside the US, the US didn't have extrajuridictional jurisdiction. The 9th had little trouble distinguishing the "high seas" cases from this one, where the defendant was sin the US and conspiring to buy drugs. The 9th also found no outrageous gov't misconduct in conducting the reverse sting.

US v. Marquez

No. 04-30243 (6-7-05). Now that the airlines are cutting down on meals, and some are even getting rid of the pretzels and peanuts, what is an air traveler to do for entertainment? The defendant decided to bring 2 kilos of cocaine on board, strapped on his inner thigh and held by spandex tights. The problem is that he was randomly selected for one of the heightened searches, and the wand alerted. One thing lead to another, and the coke was discovered. he tried to argue that the search was intrusive, but it was uncontested that he was randomly selected, and that he had passed through the first screening by choice. The 9th gives the usual hortatory warnings about the hallowedness of the 4th amendment, but in light of the precedent of airplane searches, precedent, and the War on Terror, the search was reasonable.

US v. Burt

No. 04-10240 (6-8-05). Defendant was caught transporting illegal aliens. She quickly sized up the situation and told the officers that she knew about other shipments of illegals, and there was one next week. The officers were interested, told her she would not be prosecuted, and had a meeting where parameters may or may not have been laid out for information. In any event, she was caught soon after with, yes, another shipment of illegal aliens. She argued that she was working for the border patrol. Starngely, upon the second arrest, the only agent that took notes of the meeting destroyed them. At trial she argued that she was working for the gov't, and asked for an instruction. The court said "no." Well, the 9th said that the court should have given such an instruction because there was some evidence to support the defense. It may have been weak, but the fact that notes were destroyed was suspicious, and that defendant met her burden.

Shannon v. Newland

No. 03-16833 (6-8-05). The petitioner knew there was a problem with the state jury instructions. The instruction for voluntary manslaughter required an intent to kill that could be negated by heat of passion, but what about a "reckless act" in second degree murder that was triggered by heat of passion? Shouldn't manslaughter have a provision that heat of passion could provoke recklessness? In this case, petitioner had an argument with his girlfriend, and then, well, shots were fired and he was convicted of murder and got 15 to life. He argued on appeal that the instruction was wrong. The California court of appeals denied his appeal, and he let it go. Well, three years later, the state supreme court found that the instruction was in error. Poor petitioner, he can't get his day in court. The 9th affirms the dismissal because he was out of time, and there was no new triggering of AEDPA's one year statute. Galling.

US v. Harrington

No. 03-30413 (6-6-05). A petitioner, pro se, files a motion for new trial base don newly discovered evidence years after he had a direct appeal and a habeas petition. He argued, cleverly, that a motion for new trial, because it related back to trial, required appointment of counsel. The 9th paused, but said "no." A motion for new trial is a critical stage, and a pro se that wants counsel then, gets one. But, that request is usually before sentencing, or before appeal. Here, once an appeal is taken, there is no right for counsel. The defendant is out of luck, or at least out of CJA. The 9th has no trouble looking at the merits and finding them wanting. The motion for newly discovered evidence was not new, and didn't prove innocence of the LSD drug deal.

US v. Sandoval-Lopez

No. 03-35594 (6-6-05). Hard on the heels of what advice to give (see above), this decision deals with the defendant's instructions to counsel to appeal. Here, defendant was facing lots of time for lots of heroin. His counsel got a pretty good deal for misprison of a felony and a telephone count for a total of 7 years. A year after sentencing, though, defendant filed a habeas arguing that he told counsel to appeal. The 9th then discusses at length the standard for appealing in indigent representation: there was a waiver, the plea colloquy was extensive and dealt with the waiver, and the results were pretty good. Moreover, the Supremes had also ruled that defense counsel doesn't have an obligation to appeal unless told otherwise. See Roe v. Flores-Ortega, 528 U.S. 470 (2000). Still, if the defendant says "appeal," his counsel must. The issue here was whether the defendant actually said "appeal." That being so, the case has to be remanded to determine if the defendant had so instructed. In keeping with the current craze for poker, the 9th --Kleinfled -- concludes the opinion by playing this analogy: "Nevertheless, the client has the constitutional right...to bet on the possibility of winning the appeal and winning 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.")

US v. Davis

No. 04-50030 (6-9-05). The 9th wrestles with what is a "fair and just" reason to withdraw from a plea. Here, defendant was a 72 year old doctor that was charged with distributing Dilaudid. On the eve of trial, he entered a plea that had a maximum sentence of 8 years. The guidelines came back much higher, and the gov't indicated that it was pressing for a high guideline sentence (although the actual sentence was limited to 8 years). The defendant sought new counsel, was denied, and then scraped together funds to get new counsel, who then moved to withdraw from the plea. The district court found at a hearing that the first defense counsel had advised defendant that his sentence could range from probation to 8 years. The court found that counsel had "grossly mischaracterized" defendant's counsel, but still denied his motion to withdraw. On appeal, the 9th reversed and remanded, holding that the standard of "fair and just" reason didn't necessarily require a prejudice prong. In dissent, Callahan argues that prejudice was a factor, and that the 9th's precedent has become a patchwork. [Note: troubling in this decision -- written by District Court Judge Charles Breyer -- is the fact that the sentence range was sin fact probation to 8 years. Sure it would have required a departure, but given the age and other considerations, it wasn't out of the realm of possibility. How does this play out in light of Booker, which came out after? Is counsel suppose to "guess" what the sentence will be and downplay the other possibilities? This may be a case that, in the end, results in a bad result for the defendant, and makes defense counsel's job to provide effective assistance that much more difficult).

Case o' The Week: Sandoval-Lopez wins the battle . . .

An indigent defendant may have won the right to file an appeal in this habeas victory -- but could ultimately face a much higher exposure after the win. See United States v. Sandoval-Lopez, __ F.3d. __, 2005 WL 1322902 (9th Cir. June 6, 2005), available here. In Sandoval-Lopez, the Ninth held that failure to file an appeal on a defendant's request is I.A.C., no matter how foolish that demand may be.

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

BOP Litigation Update

A chronic frustration in federal criminal defense is the Bureau of Prisons’s tendency to increase the length of sentences after the prison door clangs shut. Although the sentences are being served in our cases, we have been slow to adjust to the many issues and potential remedies for over-incarceration that adds centuries of time, at the cost of millions in tax dollars, never ordered or contemplated by the sentencing judge or Congress. The culture is changing: more attorneys understand that correcting errors in the execution of the sentence may be as important as motions, trial, and sentencing practice. The best cure is prevention to the degree possible, for example by recognizing potential problems in the presentence report. But litigation -- whether in the sentencing district or the district where the sentence is being served -- may well be the only way in which to address institutional errors that cost our clients dearly.

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

Collier v. Bayer

No. 04-15017 (6-3-05). The 9th holds that Nevada's procedural rule of construing a motion to correct an illegal sentence not tolling AEDPA was inconsistently applied when petitioner filed his motion and should be allowed to proceed with his petition.

US v. Fay

No. 04-10401 (6-3-05). Okay, this is one of the stranger opinions as to form that has come along. The issue is pretty straight-forward: the defendant had a gun in his girlfriend's house, in a duffel bag that was son a high shelf in the laundry room. The girlfriend told the police that the defendant was a prohibited possessor, and showed the officer the bag, whereupon the officer reached up, saw the outline of the gun and ammunition peeking out from opening. He then got a warrant. The defendant argued that he had an expectation of privacy and consent. The 9th (Noonan) said "no" because the bag was there for anyone to look into and not hidden. Noonan than wrote a concurrence (!) to his own opinion, arguing that the distinctions being drawn are too fine, and that a householder who knew of illegal articles, even though they belonged to someone, should be allowed to have them seized. So, we have Noonan writing an opinion and concurring with himself.

US v. Ameline

No. 02-30326 (6-1-05)(en banc). The 9th took up the "plain error" issue of Booker error in this en banc decision. Rather than articulate a principled bright-line test (like the 4th Circuit in Hughes) that assumes error, the 9th instead punted by adopting a limited remand of the issue to the district court to determine if the sentence would be different. Taking the same approach as the Second Circuit in Crosby, the 9th holds that when there is an unpreserved Booker error, and the record is insufficiently clear to conduct a plain error review, there will be a limited remand to the district court to determine if advisory guidelines would have materially changed the sentence. If so, the error is deemed prejudicial and failure to notice the error would be deemed to seriously affect the integrity, fairness, and public reputation of the proceedings. A resentencing will then take place. If the district court responds that the sentence would not change, then the original sentence will stand, subject to appellate review for reasonableness. The district court must get the parties' views in writing. The 9th also manages to cloud the issue of burden of proof, indicating in the case that the burden of proof should be consistent with Howard, which embraced a preponderance standard, although later cases indicated that a higher standard (clear and convincing) might be appropriate in certain relevant conduct/adjustment circumstances. The 9th also left murky the right of allocution. In the 9th's shifting of the decision back to the district courts, the 9th is blind to realities of how district courts facing decisions it made months or years ago can really know. The risk of rubber-stamping is very real, although the 9th righteously asserts that courts would never do that. In dissent, Judge Wardlaw takes the majority to task, arguing that a more honest and better approach would be to assume error.

Case o' The Week: 3rd Time Not a Charm, in Ameline en banc

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