Thursday, July 28, 2005

Case o' The Week: Betty, Sid and Kim are the Brady Bunch in Silva

A good panel does the right thing despite the terrible nature of the crime -- just the type of hard, but fair, outcome one hopes for from the Ninth. See Silva v. Brown, __ F.3d __, 2005 WL 1732765 (9th Cir. July 26, 2005) available here. In Silva, Judge Betty Fletcher lays out Brady/Kyles discovery law in beautiful detail, with welcome language for future discovery battles.

Players: Judges Betty Fletcher, Sid Thomas, and Kim Wardlaw (pictured to the left)– a great panel, with a characteristically just result from these three judges.

Facts: Silva was convicted in a state trial for murder, kidnaping, and other offenses. Id. at *1. The case involved a gruesome kidnaping, rape, and double-murder of two college students traveling on vacation. Id. The State’s lead witness, Thomas, had psych issues, but at the D.A.’s request psych-competency testing was deferred until after the snitch testified against the defendant. Id. at *2. In return, the D.A. dropped murder charges against the snitch. Id. This secret agreement was never disclosed to trial defense counsel. Id. at *3.

Issue(s): "The existence of this deal evidencing the prosecution’s concern as to the mental state of Thomas was obviously impeachment evidence favorable to the defense. The deal was never disclosed to the defense. The only question the parties debate is whether it was material." Id. at *5. [Ed. Note: The question was whether the evidence was "material" for the Brady analysis].

Held: "We answer this question in the affirmative. We cannot overemphasize the importance of allowing a full and fair cross-examination of government witnesses whose testimony is important to the outcome of the case." Id. at *5 (internal quotations and citation omitted).

Of Note: Perhaps wary of unwanted Supreme Court interest, Judge Fletcher writes a great opinion that details the many ways that impeachment information can be "material" for Brady purposes. She explains, "Impeachment evidence is especially likely to be material when it impugns the testimony of a witness who is critical to the prosecution’s case." Id. at *5. She emphasizes, "evidence that calls into question a witness’s competence to testify is powerful impeachment material." Id. at *6. She also observes that the testimony would have called "into question the prosecutor’s faith in the competence of its own witness." Id. at *7; see also id. at *8 ("The prosecutor’s own conduct in keeping the deal secret underscores the deal’s importance.")

How to Use: Silva joins a handful of Ninth Circuit cases that should be cited heavily in discovery demands and in discovery litigation. Judge Fletcher goes the extra mile to provide language that emphasizes the broad scope of discovery obligations, kindly marshaling supporting authority along the way. See id. at *5 (quoting Banks, Carriger v. Stewart, and East v. Johnson).

For Further Reading: Panel member Judge Kim Wardlaw has emerged as one of the strong voices in the Ninth – her questions during recent en bancs have been aggressive and insightful while she refuses to let government counsel off easy. For an unusually candid interview of Judge Wardlaw, see the "Underneath Their Robes" page here.

Steven Kalar, Senior Litigator Northern District of California. Website available at

Tuesday, July 26, 2005

Palacios-Suarez: Breakthrough on “Aggravated Felony” and Drug Possession

The Sixth Circuit has broken ranks with the other Circuits and held that a prior conviction for simple drug possession is not an "aggravated felony" and, therefore, cannot be used to enhance illegal reentry sentences based on that label. This is a major breakthrough on an issue that federal defenders have been litigating for years. The Palacios-Suarez opinion, in conjunction with this Term's decision in Leocal, is an important step toward bringing to an end a line of cases that have approved unjust over-incarceration of drug users who are not traffickers.

Illegal reentry has become one of the most frequently prosecuted federal crimes. The sentences in these cases – whether based on trial conviction, standard guilty plea, or "fast track" plea offer – often depend on the enhancements in U.S.S.G. §2L1.2(b). The "aggravated felony" enhancement incorporates the immigration definition in 8 U.S.C. § 1101(a)(43), which in turn incorporates the definition of "drug trafficking" from 18 U.S.C. § 924(c): "any felony punishable under the Controlled Substances Act." Because simple drug possession is a misdemeanor under the Act (21 U.S.C. § 844(a)), the Board of Immigration Appeals sensibly concluded that simple possession was not an aggravated felony.

But then initial Circuit cases botched the rules of statutory construction. They construed "any felony punishable" under the CSA to include a phantom "and": a felony under state law and punishable under the CSA, allowing mere possession to be a predicate "aggravated felony" if the state defined the offense as a felony. From there, the courts solidified the view that, for criminal sentencing purposes, simple possession could be an "aggravated felony" depending on state law. The BIA backed off on its position, deferring to the Circuits, which are now split with the Second and Ninth Circuits holding that simple possession can be an aggravated felony for criminal but not for immigration purposes. The Third Circuit also holds that simple possession is not an aggravated felony for immigration purposes, but has not spoken on criminal sentencing. Then came Leocal. As blogged here, the Leocal opinion, which held that driving while intoxicated is not an "aggravated felony," included a footnote stating that the definition had to be the same for criminal and non-criminal purposes.

Which finally sets the stage for German Palacios-Suarez and his intrepid advocate, Assistant Federal Public Defender Richard W. Smith-Monohan. Mr. Palacios-Suarez appealed from his illegal reentry sentence because it had been enhanced for cocaine possession, with no element of trafficking, as an "aggravated felony." In the Sixth Circuit’s opinion, which is available here, the Court directly confronted the statutory construction mess created by "a rather confusing maze of statutory cross-references."

The court began its analysis by turning to the statutory language and adopting Judge Canby’s dissent in the seminal Ninth Circuit case of Ibarra-Galindo, finding that the language did not dictate either the "hypothetical federal felony" interpretation or the "guideline approach." The court then rejected the approach of courts, including Ibarra-Galindo, that used the guideline commentary definition of "felony" because the commentary did not "have any bearing on the term ‘aggravated felony’ in subsection (b)(1)(C) of §2L1.2." The CSA definition of "felony" also, by its own terms, did not apply. The court then traced a chain of legislative history, as had the Third and Ninth Circuit cases finding that possession was not an aggravated felony for immigration purposes (Gerbier, 280 F.3d 297, and Cazarez-Gutierrez), to find that Congress did not intend that mere possessory offenses be included in the term "aggravated felony."

Judge Nelson filed a concurring opinion. While noting his caution "about rocking a boat as stable as this one seems to be," he provided a springboard for challenges in other Circuits, noting that the Circuits treating mere possession as an "aggravated felony" are inconsistent with Congress’s intent in § 924(c) and that the same statute cannot have different meanings for sentencing law and immigration purposes. As did the concurring Justices in R.L.C., Judge Nelson would place more reliance on the rule of lenity than legislative history. But as set out on pages 7-17 of the brief attached here, the plain meaning of the statute supports construction of "aggravated felony" to require an element of trafficking without resort to either legislative history or the rule of lenity.

The Palacios-Suarez opinion should spur defenders around the country to continue litigating this issue. As Bailey, Apprendi, and Blakely taught, legal precedent built on sand will crumble before persistent and principled advocacy. Congratulations to the Office of the Federal Public Defender for the Southern District of Ohio on an important win!

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

Monday, July 25, 2005

US v. Kaczynski

No. 04-10158 (7-21-05). This is an interesting issue: what happens to the unabomber's property. His belongings were seized upon his arrest in a Montana cabin in 1996. The case ended with denial of cert of his habeas petition in 2002. As part of his sentence, and plea, the defendant had agreed to pay restitution in the amount $15+ million. He also was ordered to turn over any profits from his celebrity. Defendant now wants to turn over his property to the University of Michigan collection of protest writings. The gov't had long indicated that his property had negligible value; now it says that it will value it, turn the money over to the victims, and keep the property. The 9th held that this wasn't proper and didn't comport with the victim restitution statutes. The case was remanded for the gov't to come up with a plan to maximize the property's worth in order to provide restitution. If the gov't doesn't, or the plan is found wanting, and the property is of negligible value, then it shall be returned to the defendant.

Sims v. Rowland

No. 03-17256 (7-20-05). In a state armed robbery case, the first question the jury sent out was whether the defendant had access to their addresses and phone numbers. The judge, with counsel's assent, sent back a detailed answer instructing that the questionnaires had been shredded, and that the transcript was sealed. The jury sent still another question, asking for a blank copy of the questionnaire. None of this was good for the defendant, who was convicted one hour after the last question. In post-conviction, he argues that the court should have held a hearing regarding juror bias. The 9th affirmed the dismissal, reasoning that there was no Supreme Court precedent on the issue of whether juror bias was structural error mandating a hearing sua sponte. The 9th discusses some of its own precedents, recognizing that it doesn't bind the state court, and shouldn't serve to indicate an unreasonable application. The precedent indicates though that not every allegation of juror bias triggers a hearing, and that it depends on the allegation and circumstances. The 9th found that the state did not act in violation of clearly established Supreme Court precedent.

Sunday, July 24, 2005

Case o' The Week: The Ninth has no "Use" for Beaudion

Through AFPD Kevin McCoy, bank robber Joe Beaudion (left) raised several interesting challenges to the "brandishing" mandatory-minimum provisions of 18 USC § 924(c). See United States v. Beaudion, __ F.3d. __, 20005 WL 1668807 (9th Cir. July 19, 2005), available here. Though the defense lost this appeal, an intriguing Apprendi challenge may survive.

Players: Another hard-fought appeal by Alaska AFPD Kevin McCoy (see Kevin’s recent win in Zavala-Mendez, a § 1326 case decided in June).

Facts: Joe Beaudion robbed a bank with a .22 rifle in the small Alaskan town of Eagle’s Creek. Id. at *1. He approached a bank teller, and said, "No one has to get hurt. Just hand over the large bills." Id. He set the rifle in open view on the counter, without taking his hand off of it, and repeated this process with three other tellers. Id. He was charged with bank robbery, and with 18 USC § 924(c) – knowingly using, carrying, or brandishing a firearm in connection with the robbery. Id. Beaudion pleaded to the robbery and use of the weapon, but disputed that he "brandished" the rifle. Id. at *1-*2. He received a seven-month mandatory minimum sentence for "brandishing" over this objection. Id.

Issue(s): 1. Is the distinction between "use" and "brandish" vague and ambiguous, precluding the seven year mand-min for "brandishing?" Id. at *2. 2. "Beaudion next argues that, after Blakely and Booker, the Sixth Amendment requires that the determination of whether he ‘brandished’ the firearm be determined by a jury and not by the district court." Id.

Held: 1. Re: Ambiguity/Vagueness: "The terms at issue here, brandishing and use, are not ambiguous because, as illustrated by the above examples, ‘use’ frequently may occur without an instance of ‘brandishing,’ as will be the case where a firearm is used without displaying it to anyone." Id. at *3. 2. Re: Apprendi Challenge (Harris): "Beaudion admitted that he walked into the bank holding the rifle in plain view and laid it on the counter as he demanded the tellers give him cash. Beaudion merely denied that these facts legally amounted to brandishing. That the district court disagreed with his argument does not raise a Sixth Amendment issue." Id. at *3.

Of Note: The defense bar had mounted a similar Apprendi challenge to Section 924(c), that resulted in the infamous Harris Supreme Court decision (wherein Justice Breyer conceded that Apprendi should control, but couldn’t get himself to admit that Apprendi applied to mandatory minimum sentences). The interesting thing about the present decision is that one would think the Ninth would quickly default to Harris and reject the defense Apprendi argument as to brandishing. Instead, the Court punted, concluding that because facts were not in dispute there was no Sixth Amendment issue. Could this signal that the Harris analysis is somehow changed after Booker? As the Court summarizes Kevin McCoy’s challenge, "Beaudion argues that Harris is no longer good law in light of the Court’s subsequent decision in Blakely and Booker." Id. at *3. An interesting theory - may be worth preserving in Section 924(c) cases.

How to Use: The brandishing facts were (arguably) undisputed here. Id. at *3, but see, id. at n.6 (defense disputed gun was pointed at tellers). If possible, consider disputing "brandishing" facts in the district court, and revisit Kevin’s post-Booker § 924(c) challenge.

For Further Reading: Bank robbers who rob banks in small towns shouldn’t then go to the local bar for a drink. See newpaper article here. After robbing the Wells Fargo, Beaudion apparently retired to the local "Eagle’s Lodge" where a local cop (a native of the area) recognized a truck that was out of place. The rifle and cash from the bank were found in the front seat of the truck.

Steven Kalar, Senior Litigator N.D. Cal. FPD, website available at

Wednesday, July 20, 2005

US v. Beaudion

No. 04-30197 (7-19-05). The 9th holds, for 924(c) purposes, that there is a distinction between "use" and "brandish" . The defendant went into a bank, and robbed it. He placed a sawed off .22 caliber rifle on one, and then another, teller's window counters. He was caught shortly thereafter. The district court found that he had brandished the weapon and gave him 84 mos (7 years) under the mandatory 924(c) sentence. On appeal, defendant argued that use and brandish are ambiguous and that the statutory scheme provides two sentences for the same conduct. The 9th parsed the meanings, and distinguished "use" from "brandish," which it defined as basically display or showing with intent to intimidate. "Use" can be a hidden weapon, and some act, such as using the firearm to break a lock, or barter (the court's examples, not mine). It seems that if bank robbers show or display the weapon, or even part of it, or made it known, then they will be deemed to have brandished it. 924(c)(1)(D)(4). "Use" will be no show. The 9th avoided deciding whether Harris is good law still by sidestepping, holding that the defendant had plead to use to brandishing and so no sixth amendment issue was presented. The case was remanded for resentencing pursuant to Ameline.

Monday, July 18, 2005

Case o' The Week: Old Colleagues Tussle over Bussell (bankruptcy fraud)

Even former Ninth Circuit Judge Hufstedler (left) couldn't swing a defense win in this tragic bankruptcy case. See United States v. Bussell, __ F.3d __, 2005 WL 1620313 (9th Cir. July 12, 2005), available here. The case catches the eye for the suicide of a co-defendant (Bussell's husband) during trial. Of broader importance, however, is the Ninth's dicussion of bankruptcy fraud defenses.

Players: Former Ninth Circuit Judge Shirley Hufstedler (now of MoFo) for defendant Bussell.

Facts: Letentia Bussell and her husband John were charged with bankruptcy fraud. Id. at *1. John apparently committed suicide during trial by jumping from a window – the jury was informed that he was absent, but not told why. Id. at *1-*1. Letentia Bussell was convicted of bankruptcy fraud after a "hard-fought and lengthy trial." Id.

Issue(s): 1. Was the court’s instruction on the missing co-D plain error?

2. Were the bankruptcy form’s inquiries too ambiguous to support a conviction?

3. Did the court abuse its discretion in its "good faith" instruction on the bankruptcy fraud counts?

4. Did the court err by imposing restitution for "intended" vs. "actual" loss?

Held: 1. Suicidal co-D: As a matter of first impression, "the district court adopted precisely what we have suggested might be the ‘better’ approach: simply informing the jury that John was no longer a defendant in the case." Id. at *3.

2. Ambiguous Bankruptcy Petition: While ambiguous questions cannot serve as a basis for prosecution, in the context of these questions "we would affirm the determination of the district court even under de novo review." Id. at *6-*7.

3. Good Faith Instruction: The "good faith" jury instructions were not an abuse of discretion. Id. at *8.

4. Restitution: Reverses, holding that "the amount of restitution [is] limited by the victim’s actual losses." (internal quotation and citation omitted) (emphasis in original).

Of Note: The tragic suicide of the co-D is what catches the eye in this opinion, and there is an important (and discouraging) discussion of FRE 606(b) and juror declarations relating to this issue. Id. at *2. The most important aspect of the case, however, is the Court’s tolerance of arguably ambiguous questions on the bankruptcy petition form. Id. at *6. The rule that emerges is that the defense of "ambiguity" is contextual. Id. at *6-*7. In this case, "ambiguous" terms were answered correctly in other parts of the petition, or opportunities to disclose assets were not taken in response to other, clearer questions. Id. The flip side of this analysis, however, is that with better facts this contextual analysis may present a viable defense for bankruptcy fraud cases.

How to Use: Making lemonade out of lemons, Bussell can be used as an endorsement of a "good faith" instruction. In this case, the district court explained "that a person who acted in good faith – that is, based on a belief or opinion honestly held – was not punishable under these statutes merely because the belief or opinion turn[ed] out to be inaccurate, incorrect or wrong. Criminal punishment was instead reserved for those people who knowingly defraud or attempt to defraud." Id. at *8 (internal quotations omitted). While the defense wanted more from this instruction, at minimum the Ninth has endorsed this good faith instruction for bankruptcy fraud cases. Id.

For Further Reading: This year, more Americans will file for bankruptcy than will get a divorce, suffer a heart attack, or graduate from college. See MSNBC article here. Harvard Law Professor Elizabeth Warren has done a shocking study on skyrocketing bankruptcy petitions, and written a book on the subject called, "The Two-Income Trap." Id. (You may have heard her sobering interview on NPR). See interview here. With rising bankruptcy petitions, expect more bankruptcy fraud cases to defend in the upcoming years.

Steven Kalar, Senior Litigator N.D. Cal. Website available at

Belmontes v. Brown

No. 01-99018 (7-15-05). The 9th, on remand from the Supremes, still finds that the jury instructions in a capital case pertaining to sentencing (consideration of nonstatutory mitigation) were erroneous, and under a pre-AEDPA standard, leads to a new sentencing. Reinhardt wrote the opinion and O'Scannlain dissents, accusing the panel of defying the Supremes.

Parrila v. Gonzales

No. 03-74010 (7-11-05). This is an immigration case in which the 9th agreed that Washington Revised Code sec. 9.68A.090 did not categorically proscribe "sexual abuse of a minor" because the abuse could be via communications. However, the factual basis under the Shepard test (looking at the plea) makes it an agg felony.

US v. Bussell

No. 02-50495 (7-12-05). This presents an interesting issue: what to tell the jury when a codefendant (and spouse) dies during jury deliberations. The defendant, and deceased husband, were on trial for bankruptcy fraud. It was a long and bitterly fought trial. After the jury got the case, and sent out two questions pertaining to the husband (but before answering), the husband fell to his death from his hotel room (the district court, always sensitive, characterized it as a suicide; the defendant disputes this). The court then told the jury that the case against the husband had been disposed of, and they shouldn't speculate about it. Of course they did ("did he take a deal?"). They convicted the wife. The 9th noted that there was no objection to the instruction, usually given when a codefendant pleads out during trial. The 9th also didn't consider the jury affidavits that they speculated on what happened. The 9th did note that there was some precedent for actually telling the jury the truth about the absence -- that the husband died, and that may be a sound choice, but under a plain error analysis, the instruction wasn't going to lead to a vacation (of the conviction anyway). [Query: if the husband was going to take the fall for the wife, wouldn't he have done it before hand?] The 9th found that there was sufficient evidence to support the verdict, and that the questions on the bankruptcy petition form weren't too vague.

Tak Sun Tan v. Runnels

No. 04-55775 (7-7-05). This is collateral challenge to the tragic murder of Dr. Haing Ngor, who was the lead character in The Killing Fields film, for which he received an academy award. The district court had granted relief for the murder convictions on the basis of prosecutorial misconduct. The 9th, using the deferential standards of AEDPA, reversed. The prosecution made extensive reference to the victim's Cambodia experience, but that was relevant because of the theory that the victim struggled to keep a locket, with a copy of his late wife's photo (the only photo there was left). The 9th also found that the state hadn't misstated facts.

US v. Romo

No. 04-30131 (7-5-05). Although the defendant was serving time, he still remained politically engaged. Unfortunately, his strong opinions moved him to write a threatening letter to the White House stating that he was going to kill the President, and that he would do so by firing into his head. (Ed note: GOP leaders that obliquely called for the death of federal judges were not so charged). Defendant told his counselor about this letter, which lead the counselor to tell the officers, and an investigation preceded that ended up with a conviction. The defendant asserted the psychotherapist-patient privilege. The 9th found it didn't apply because the counselor had to be engage in counseling, and this disclosure was not during a scheduled formal session by in conversation. Moreover, the counselor did many things at the institution, including acting as case manager and setting up activities. Since the conversation feel outside of treatment, it wasn't protected. The 9th did find error in allowing the head of mail screening at the White House to opine that such a letter with such a threat would be considered a threat. This was the ultimate issue, and the characterization of it as a serious threat was one the jury could determine without expert opinions. Nonetheless, any error was harmless. Interestingly, the factual letter was lost in a mound of mail that as warehoused after Sept 11th and couldn't be found. The evidence of a threat came from defendant's statements.

US v. Romo

No. 04-30131 (7-5-05). Although the defendant was serving time, he still remained politically engaged. Unfortunately, his strong opinions moved him to write a threatening letter to the White House stating that he was going to kill the President, and that he would do so by firing into his head. (Ed note: GOP leaders that obliquely called for the death of federal judges were not so charged). Defendant told his counselor about this letter, which lead the counselor to tell the officers, and an investigation preceded that ended up with a conviction. The defendant asserted the psychotherapist-patient privilege. The 9th found it didn't apply because the counselor had to be engage in counseling, and this disclosure was not during a scheduled formal session by in conversation. Moreover, the counselor did many things at the institution, including acting as case manager and setting up activities. Since the conversation feel outside of treatment, it wasn't protected. The 9th did find error in allowing the head of mail screening at the White House to opine that such a letter with such a threat would be considered a threat. This was the ultimate issue, and the characterization of it as a serious threat was one the jury could determine without expert opinions. Nonetheless, any error was harmless. Interestingly, the factual letter was lost in a mound of mail that as warehoused after Sept 11th and couldn't be found. The evidence of a threat came from defendant's statements.

Schardt v. Payne

No. 02-36164 (7-8-05). "Retro" is in these days, but when it comes to Blakely, retroactivity is out. Here, the 9th addresses whether a state prisoner can collaterally challenge the validity of his sentence on the ground that the court, in sentencing, used facts that had not been found by a jury beyond a reasonable doubt as required by Blakely. The 9th, as all circuits, shudders when it thinks of the implications. It is not surprising therefore that the 9th holds that Blakely is not retroactive. The 9th therefore joins the 10th Cir. in so holding, and aligns with those circuits that have held that Booker is not retroactive on collateral appeal. In reaching the conclusion, the Teague test is used, which requires the court to: (1) determine when the conviction became final (here after Apprendi but before Blakely); (2) whether a new rule was announced (the 9th held that Blakely announced a new rule and wasn't an extension of Apprendi -- no court had applied Apprendi to anything less than the stat max; (3) whether this was a procedural or substantive rule (the 9th held that rules that allocate decision-making authority are by nature procedural, as is the case here); and (4) is Blakely a watershed procedural rule (the 9th adopts the 10th Cir.'s reasoning that Blakely concerns how a court imposes a sentence rather than whether a defendant is in fact guilty, and this is not watershed in nature as it does not undermine the fundamental fairness of the proceeding).The 9th also turns down petitioner;s efforts to say that the federal law was clear and should trump state.

Friday, July 08, 2005

Schardt: Misreading Of Schriro Undermines Reasonable Doubt Retroactivity

The Ninth Circuit today rejected a habeas petitioner's request that the court retroactively apply the Supreme Court's Blakely decision. The defendant in Blakely received an upward departure from the controlling state guideline range based on facts found by the sentencing judge, not a jury, by a preponderance of the evidence. The Supreme Court reversed based on Apprendi, holding that facts necessary for an increase in the state sentencing guidelines must be either admitted or proved to a jury beyond a reasonable doubt. The Supreme Court applied this same principle to capital sentencing in Ring v. Arizona, but found that Ring did not apply retroactively in Schriro v. Summerlin because the application of a reasonable doubt standard -- even though by a judge -- provided adequate protection for the reliability of the proceedings. The Supreme Court has not spoken on the retroactivity of the reasonable doubt component of Blakely.

The retroactivity question is whether a new rule of constitutional criminal procedure applies in cases that are final (that is, the defendant has completed direct review). When raised on collateral review by a petition for habeas corpus relief, the basic test from Teague asks whether the right at issue is fundamental and whether the failure to apply the rule affects the accuracy and, hence, the reliability of the proceedings. As blogged here, Judge Panner observed in an Oregon district court case (Siegelbaum, 359 F.Supp.2d 1104) that, in Schriro, the Supreme Court recognized that the reasonable doubt standard was a necessary protection where the government sought to impose criminal sanctions based on controverted facts. Despite the clarity of this analysis, the circuit courts have been uniformly -- with little analysis -- misreading Schriro as establishing that Blakely and Booker are not retroactive. We need to continue to consistently and clearly point out that Schriro involved the identity of the fact-finder, while leaving unresolved the key issue of the standard by which facts are found.

In Schardt (opinion available here), the Ninth Circuit began by finding that the enhanced sentence unquestionably would result in reversal under Blakely if the case were on direct appeal. The court rejected the NACDL amicus position, co-authored by Jeffrey Fisher (who represented Blakely in the Supreme Court) and David Zuckerman, that Blakely created a new substantive, rather than procedural, rule. Relying on Beard and cases relating to the federal sentencing guidelines, the court also rejected the position that, because Blakely simply applied Apprendi, Blakely did not establish a new rule. Then, with no mention of Schriro's reasoning on the importance of the reasonable doubt standard, the court adopted wholesale the Tenth Circuit's approach in Price that simply followed pre-Schriro authority to say that the rule barring increased sentencing maximums based on only a preponderance of the evidence was not a watershed rule of criminal procedure.

But Schriro contradicts the pre-Schriro authority cited by the court. The key rationale for Schriro is the critical importance of the reasonable doubt standard, which was applied in Schriro but was not applied in Schardt. How much more emphatic does the Supreme Court need to be regarding the importance of the reasonable doubt standard? In Schriro, both the majority and dissent agreed that the reasonable doubt principles underlying Apprendi were "fundamental" or "implicit in the context of ordered liberty." And twice -- twice! -- the Supreme Court has held that extensions of reasonable doubt apply retroactively because the accuracy of criminal findings is of primary importance: the reasonable doubt requirement for judge-made findings in juvenile cases in Winship had to be applied retroactively in Ivan V.; the protection against dilution of the reasonable doubt standard by presumption in Mullaney had to be applied retroactively in Hankerson for the same reason. Under the reasoning of Tyler v. Cain (a combination of cases can establish retroativity), the cumulative effect of these decisions -- especially given Apprendi's reliance on Winship and Mullaney -- means that the Supreme Court has already held that new rules of criminal procedure expanding the reasonable doubt standard should be applied retroactively.

The Schardt decision is ripe for en banc review. The history and policies underlying retroactivity doctrine strongly support retroactive application where accurate factfinding is at issue, as outlined in the Harvard Law Review note entitled Rethinking Retroactivity, 118 Harv.L.R. 1642 (2005). The scope of potential relief might be a factor in the courts' reluctance to find retroactivity. But for the discrete group of state petitioners who were on direct appeal when Apprendi was decided, the reasonable doubt standard is arguably not even a new rule. For these petitioners, the broad retroactivity questions need not even be addressed because Blakely was dictated by Apprendi, as reflected in the language of both Blakely and Booker, and in the unanimous Kansas Supreme Court decision invalidating state guidelines based on Apprendi. And if the retroactivity issue needs to be reached, the reasoning underlying Schriro should at least be addressed.

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

Thursday, July 07, 2005

Case o' The Week: Not a privilege to meet you, Romo

Judge McKeown (left) refuses to recognize the psychotherapy privilege for an inmate who sought out a session with his prison counsellor in United States v. Romo, __ F.3d __, 2005 WL 1560266 (9th Cir. July 5, 2005), available here. Judge Betty Fletcher stands up for the privilege in a strong concurring opinion.

Players: Judge McKeown writes for the majority, Judge Betty Fletcher concurs.

Facts: Inmate Robert Romo routinely saw a counselor – LaPlante – while in prison. Id. at *1. One day Romo spoke with LaPlante in a non-scheduled, private meeting. Id. At this meeting Romo confessed that he had written and mailed a threatening letter to the President. Id.

Issue(s): The central issue was whether Romo’s confession to LaPlante was protected by the psycho-therapist-patient privilege. "To determine whether the district court committed clear error, we consider the meaning of the third element of the privilege, the element that requires the communication to be made in the course of diagnosis or treatment." Id. at *2 (internal quotations and citation omitted).

Held: "In sum, the evidence squarely supports the district court’s conclusion that the meeting between LaPlante and Romo did not occur during the course of diagnosis or treatment." Id. at *4.

Of Note: Romo is an important and disappointing case, because it is new Ninth law on what constitutes "in the course of diagnosis or treatment." Id. at *3. The Court in Romo articulated the factors that go into this inquiry: "Whether a meeting occurred ‘in the course of diagnosis or treatment’ is a factual determination that rests upon consideration of the totality of the circumstances. Relevant factors may include the historical nature of the relationship between the individual and his confidante; the patient’s purpose in making the communication; the nature of the contact; the timing and location of the communication; objective data, such as medical records, which corroborate the counseling contact; and whether mental health services were provided or requested during the communication. Standing alone, the fact that a therapist has previously provided mental health care to a patient does not establish that a subsequent meeting was in the course of diagnosis or treatment. Even in the face of an ongoing patient-therapist relationship, the patient and therapist may have contacts that do not involve therapy. Thus, we pay special attention to the particulars of the meeting during which the allegedly privileged information was exchanged." Id. at *3.

Concurring Judge Betty Fletcher would have none of it – she thought the Court didn’t need to get to the privilege issue. Id. at *7 (Fletcher, Judge B., concurring). As Judge Fletcher politely but persuasively observed, "At the suppression hearing LaPlante said he would not turn over his notes from the session without permission from Romo or a court order" . . . . "When a patient contacts his therapist, with whom he has an on-going patient-therapist relationship, to discuss a problem the patient is having and the patient and therapist subsequently meet and discuss the problem the resulting conference is a counseling session." Id.

How to Use: An important distinction available in Romo is the paucity of the defense showing that this was intended to be a private counseling session. The defendant did not file a declaration stating that was his intent, and the Court noted the absence of facts supporting that view. Id. at *4. If possible (with a mentally ill client), developing a defense factual record will be critical to rebut the Romo rule on when the privilege arises.

Should defense counsel advise their clients to avoid prison counseling after this decision? Ironically, that is the practical and unintended consequence of the decision. Although Romo was exactly the type of inmate who needs confidential counseling, he is also exactly the type of client who is most vulnerable when the privilege is not honored. For child-molestation and "threats" clients, Romo raises all sorts of red flags around prison counseling.

For Further Reading: Romo picked up a new threats case while this case was pending. See press release here. Any PD can sympathize with Romo's counsel - these "threats" clients are often mentally ill, and have a hard time with impulse control. Defense counsel who have represented these mentally-ill "threats" clients will appreciate how it unwise it is to undermine these inmates’ full and confidential access to counseling.

As an aside, this case seems particularly unfair in that Romo was in custody -- and couldn't carry out the threat. Moreover, the letter at issue never actually made it to the White House! It was lost in a warehouse and couldn't be produced at trial. Weighing the public policy goal of protecting the President from (lost) letters from incarcerated inmates, against the important policy goal of encouraging counselling for prisoners, this seems to be a particularly impractical decision.

Montana AFPD John Rhodes has taken over the case, and reports that a petition for rehearing is in the works.

Steven Kalar, Senior Litigator N.D. Cal. FPD, website at

Friday, July 01, 2005

Case o' The Week: Pre-indictment delay challenges in the Ninth are Barken up the wrong tree

The Central District of California USAO waits until five days before the statute of limitations tolls to spring this environmental indictment. Despite a defense showing of prejudice caused by the delay, the Ninth tolerates the government's stalling -- for which, by the way, the "government provides little explanation." See United States v. Barken, __ F.3d __, 2005 WL 1501496 (9th Cir. June 27, 2005), available here.

Players: Authored by 80-year old visiting Reagan appointee John R. Gibson. See bio here.

Facts: Gary Barken owned Barken’s Hard Chrome, a metal finishing company in Compton. Id. at *1. He agreed to take chemicals and equipment from another company that was closing. Id. The chemicals, however, ended up dumped all over the desert – and an employee with whom Barken had a "personal relationship" said they were dumped at Barken’s direction. Id. Riverside County filed five felonies against Barken, and the state case was ultimately settled for dismissal of the criminal charges against Barken and a conviction for the company, with a significant fine. Id. at *2. This deal was struck in 1998. Id. Five days before the statute of limitations ran, the feds brought an indictment and ultimately convicted Barken of dumping hazardous materials. Id.

Issue(s): Did the five year delay in prosecution rise to the level of a Fifth Amendment due process violation? Id. at *3.

Held: No. "An indictment is rarely dismissed because delay by the prosecution rises to the level of a Fifth Amendment due process violation . . . . First, a defendant must prove that he suffered actual, non-speculative prejudice from the delay, meaning proof that demonstrates exactly how the loss of evidence or witnesses was prejudicial. The defendant’s burden to show actual prejudice is heavy and is rarely met. The second part of the test applies only if the defendant has demonstrated actual prejudice. In the second part, the delay is weighed against the reasons for it, and the defendant must show that the delay offense those fundamental conceptions of justice which lie at the base of our civil and political institutions." Id. (internal citations and quotations omitted). "While Barken argued that his defense was substantially prejudiced by the absence of this testimonial and non-testimonial evidence, case law holds that the statute of limitations is typically adequate protection for a defendant’s rights." Id. at *4.

Of Note: This opinion is particularly bad, because Barken did make a substantial showing of how he was prejudiced by the delay. Because of the delay, he lost an exculpatory witness in Mexico, id. at *3, lost physical evidence – such as receipts – that buttressed the defense theory, id. at *4, lost access to fingerprints, and to chemical testing of the materials, id., and lost another witness to death, id. The Court’s wry observation on the delay is of small solace: "Although Barken devotes significant time to arguing the unfairness and lack of justification for the government’s delay, and the government provides little explanation, this court need not examine the reasons for delay if Barken has not met his burden of demonstrating prejudice." Id.

How to Use: It is bad enough that the feds can’t make their own cases, and have to poach existing state convictions. It is ludicrous that the USAO sat around for five years, and waited until five days before the S.O.L. to bring this action – with no explanation of the delay. The message for defense counsel is that an attractive state deal may not be as valuable as it appears, when an AUSA is going to spring up with an indictment a half-decade later. State D.A.’s should chew-out their federal counterparts; no defendant will want to deal in the atmosphere of uncertainty caused by Barken.

For Further Reading: Despite the outcome of this decision, it looks like Barken Hard Chrome is still up and running, employing the good folks of the City of Compton. See web page here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Webpage available at