Tuesday, August 30, 2005
US v. Murguia-Oliveros,
Monday, August 29, 2005
Okai: doctrine of constitutional avoidance requires that federal sentencing statutes be construed to require proof beyond a reasonable doubt
Judge Bataillon’s decision in Okai (2005 WL 2042301) provides a great outline of how to approach standard-of-proof issues after Booker. First, the court reviewed the importance of guidelines under the "reasonableness" review provided by the Booker remedial opinion. Second, the court noted the importance of agreements and stipulations in setting any guideline increases beyond enhancers that are charged in the indictment. Third, the court looked to the constitutional objections that survive Booker. This is the critical part of the analysis.
In footnotes 2 and 4, Judge Bataillon explains how the Booker opinion ruled only on the Sixth Amendment right to jury trial, not the Fifth Amendment’s requirement of proof beyond a reasonable doubt. The court then elaborated on the "surpassing importance" of the reasonable doubt standard’s protections and, based on the societal interest in great certainty, the critical distinction between who makes a determination resulting in greater punishment (judge or jury) and the standard by which that decision is made. In footnote 5, the court notes that post-Booker case law simply does not involve the Fifth Amendment issue. Relying on Schriro, Hankerson, and Ivan V., the court finds the reasonable doubt standard requires greater protection than the right to jury trial alone.
The court then recognizes the simple reality of everyday life in federal court: "Whether characterized as ‘elements’ or not, certain facts, such as drug quantity, scope of the operation, amount of loss, or injury are as important to the sentence as the general elements of a crime set out in the criminal code." Such facts are so important that the heightened certainty of the reasonable doubt standard should apply. But rather than making a constitutional ruling, the court, citing Clark v. Martinez, stated: "The principal of constitutional avoidance mandates that the federal sentencing statutes should be construed to avoid the difficult constitutional question of whether the imposition of a harsher sentence – whether characterized as a Guidelines sentence, a departure, or a deviance – violates due process when the greater punishment is based on facts found under a standard lower than proof beyond a reasonable doubt."
The court then coupled its statutory construction with a reasonableness analysis: "[W]hatever the constitutional limitation on the advisory sentencing scheme, the court finds that it is not ‘reasonable’ to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt." Given the government’s failure "to present any evidence with respect to the controverted facts," the court imposed sentence at the guideline range based only on the loss to which the defendant agreed.
This is a great opinion that provides judicial approval to the analysis defenders have been asserting from the time Booker came down. Congrats to AFPD Carlos Monzon and the Omaha FPD office. The evolution of the reasonable doubt issue has been chronicled in the following blogs (see especially the letter brief linked to Booker: reasonable doubt update):
- Booker: reasonable doubt survives
- Booker: reasonable doubt update
- Huerta-Rodriguez: reasonable doubt required
- Judge Gertner on reasonable doubt
- Dupas: reasonable doubt redux
The Ninth Circuit just last week noted in Stewart: "Because we remand to the district court for resentencing, we do not reach Stewart's arguments...that the district court erred in enhancing his sentence based on facts the jury did not find beyond a reasonable doubt." The reasonable doubt issue is alive and well; we need to keep pushing this righteous issue on behalf of clients who are facing aggravated sentences based on controverted facts proved by a standard lower than proof beyond a reasonable doubt.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
US v. Lopez-Montanez
US v . Ortuno-Higareda
Sunday, August 28, 2005
A little order evokes big memories in United States v. Crawford, __ F.3d __, 2005 WL 2030497 (9th Cir. Aug. 24, 2005), ord, available here. On its surface, the Crawford order is a short little recall of a mandate, allowing a district court judge to resentence after Booker. The "recall the mandate" approach, however, has a colorful history in this Circuit. The last time the Ninth tried this approach it pitted the Circuit against the Supreme Court, and sparked a legendary intellectual battle between Judge Reinhardt (left), and Judge Kozinski (right).
Players: Judges Gould, Brunetti, and McKeown.
Facts: A district court judge expressed regret at the high sentence he had to impose under the (then mandatory) Sentencing Guidelines. Id. at *1. Booker was decided. The defense sought to recall the mandate.
Issue(s): Does a district court’s reservations at sentencing – combined with Blakely and the Booker decision – constitute “extraordinary circumstances” that warrant recalling the mandate, vacating the sentence, and remanding for resentencing?
Held: Yes. “This case involves ‘extraordinary circumstances’ sufficient to justify our recall of the mandate, Calderon v. Thompson, 523 U.S. 538, 550 (1998); see also Nevius v. Sumner, 105 F.3d 453, 460-61 (9th Cir.1996), because: (1) the sentencing judge expressed explicit reservations on the record about the sentence required under the previously mandatory Sentencing Guidelines; and (2) the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), foreshadowing its holding in United States v. Booker, 125 S.Ct. 738 (2005), was rendered before the mandate issued. Accordingly, we recall the mandate, vacate the sentence, and remand to the district court for resentencing pursuant to Booker . . . .” Id. at *1 (footnotes omitted).
Of Note: As discussed in greater detail below, this very short order involves very big issues regarding a procedural gambit called “recalling the mandate.” Conspicuously absent in the order is i) the time lapse between sentencing and the motion to recall the mandate, and ii) any discussion of habeas relief. Does Crawford stand for the proposition that a defendant can seek relief through recalling the mandate even when there is a habeas timing bar? The order doesn’t say so, but that’s a fair between-the-line reading.
How to Use: This order may signal a habeas loophole for the right case. Has a client blown ADEPA time limits? Doesn’t seem to have bothered the Crawford panel – and the client who will be resentenced doesn’t care if his relief came from habeas review or a recall of the mandate.
For Further Reading: To “recall the mandate” has been a politically-charged approach; an approach that has sparked some of the highest drama in the Ninth in recent memory. The most notorious example of this is Thompson v. Calderon, 120 F.3d 1045 (1997), reversed by Calderon v. Thompson, 523 U.S. 538 (1998). In essence, the Ninth in Thompson avoided a habeas bar and reversed a capital case by recalling the mandate; the Supreme Court then quickly reversed that procedural gambit. After a remand and further proceedings, Thompson was ultimately executed – in spite of a Ninth Circuit decision finding fundamental errors in his state trial.
For an extraordinarily candid view of that process, see a former Fletcher clerk’s blog here. A noteworthy history of the Thompson case was provided by Judge Reinhardt himself, in The Anatomy of an Execution: Fairness vs. “Process,” 74 N.Y.U.L. Rev. 313 (May 1999). The fight over recalling the Thompson mandate strained the boundaries of old friendships in the Ninth. See id. at n. 140 (discussing Judge Reinhardt’s views of Judge Kozinski).
Consider the irony in Crawford; the Ninth cites the Supreme Court’s Thompson reversal for its authority to now recall the mandate . . . .
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org
Friday, August 26, 2005
US v. Carter
Williams v. Roe
US v. Cervantes-Flores
Arnold v. Runnels
US v. Weiland
Inthavong v. Lamarque,
US v. George
US v. Stewart,
Means v. Navajo nation
Wednesday, August 24, 2005
Weiland: ACCA statutory argument finds support in strange places
The frontal attack on Almendarez-Torres appears to be foreclosed for the time being by the Ninth Circuit’s analogous refusal to consider the vitality of Almendarez-Torres in the context of the illegal reentry statute (Pacheco-Zepeda). The Ninth Circuit reiterated its adherence to Almendarez-Torres in Weiland by rejecting the claim, raised for the first time on appeal, that the ACCA violates the jury trial requirement of the Sixth Amendment. The court simply stated the position was foreclosed by Almendarez-Torres. As the Supreme Court reiterated in Texas v. Cobb and Justice Stevens's Booker opinion, courts only decide issues before them; therefore, Weiland’s ruling has no precedential effect on the statutory argument. However, two aspects of Weiland provide support for the statutory argument.
First, in footnote 16, which follows the brief treatment of the Sixth Amendment claim, the court noted that "recent Supreme Court jurisprudence has perhaps called into question the continuing viability of Almendarez-Torres." The court then limited its holding to a finding that the "direct application" of Almendarez-Torres could only be addressed by the Supreme Court itself. Thus, the footnote – in conjunction with Shepard and Haley – supports the serious constitutional doubts regarding Almendarez-Torres.
Second, earlier in the decision, the court found, based on Old Chief, that the trial judge abused his discretion in admitting multiple prior convictions when a single prior established the felon-in-possession offense. Although the error was harmless in Mr. Weiland’s case, the ruling helps the statutory argument. Justice Breyer’s decision in Almendarez-Torres was based in part on the theory that, if prior convictions were elements, the jury would learn about the alien’s criminal history in a § 1326 prosecution. By a "cf." citation, Justice Breyer noted that, in contrast to illegal reentry prosecutions, the jury already knows there is a prior conviction in the context of a felon-in-possession-of-a-firearm prosecution. The Weiland ruling emphasizes that, because the prior conviction is already an element, application to the ACCA involves expansion of Almendarez-Torres and, therefore, greater constitutional doubt. The ruling excluding priors illustrates the availability of stipulations and in limine rulings to prevent undue prejudice.
Weiland does not affect the availability of the argument that the doctrine of constitutional doubt should apply to statutes, such as the ACCA, that do not specify the manner of proof for prior convictions. We need to consistently assert these positions while the Supreme Court expresses doubt, but does not resolve the doubt, about its wounded decision in Almendarez-Torres.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
Tuesday, August 23, 2005
Lisbey v. Gonzales,
Hirschfield v. Payne
US v. Chong
Sunday, August 21, 2005
The last Case o' The Week memo discussed Judge Betty Fletcher. This week's case is written by her replacement in the Ninth, Judge Richard Tallman (left). In United States v. Williams, __ F.3d __, 2005 WL 1950006 (9th Cir. Aug. 16, 2005), the Circuit holds that it does not violate the Fourth Amendment for a cop to order a passenger back into a car. Decision available here. Because the Supreme Court has already held an officer could order a passenger out of the car, the general rule is that a cop can order a passenger in or out with no constitutional limitation . . . .
Players: A hard-fought case out of Oakland by ND Cal AFPD Jerome Matthews.
Facts: An Oakland cop stopped a car for not having a "white light illuminating the license plate." Id. at *1. Williams was a passenger and got out - and was immediately ordered back in the car. Id. The driver was arrested for driving without an ID, and the officer heard a "thud" and found a gun six feet from the car. Id. Williams was charged with being a felon in possession, and moved to suppress. Id. at *2.
Issue(s): "[W]hether an officer may order a passenger who voluntarily gets out of a lawfully stopped vehicle back into the automobile without violating the passenger’s Fourth Amendment rights." Id. at *1 (emphasis in original).
Held: "In upholding the officer’s discretion to control the situation as he or she deems necessary to ensure the safety of the officer and the vehicle occupants, we answer in the affirmative . . . ." Id. "In the final calculus, we think it best left to the discretion of the officers in the field who confront myriad circumstances we can only begin to imagine from the relative safety of our chambers. We hold that under the Fourth Amendment it is reasonable for an officer to order a passenger back into an automobile that he voluntarily exited because the concerns for officer safety originally announced in Wilson, and specifically the need for officers to exercise control over individuals encountered during a traffic stop, outweigh the marginal intrusion on the passenger’s liberty interest." Id. at *4.
Of Note: AFPD Jerome Williams forcefully – and we think, persuasively – argued that his case was distinct from previous authority permitting cops to order passengers out of the car. As Jerome pointed out, the rationale in those cases was that a passenger could make furtive, hidden, and dangerous, movements inside of a car. Id. at *3. Writing for the Court, Judge Tallman rejected this argument, concluding that officer safety outweighed the "minimal intrusion" on the passenger’s liberty interest. Id. at *4.
How to Use: Williams is unusual in several respects: the officer was alone, it was in the early morning hours, and the driver did not immediately pull over when the cop activated his lights. Id. at *1. Although Judge Tallman certainly uses broad, permissive language in his decision, one could argue that it was reasonable in the particular circumstances of Williams to order the passenger back in the car. By contrast, if multiple officers stop an immediately-compliant driver in broad daylight, it may be possible to distinguish Williams with the argument that the greater passenger liberty interests, id. at *2, outweigh any possible officer safety concerns.
For Further Reading -- RFID Chips: It has not been a great decade for the Fourth Amendment rights and cars. Things may get worse with new technology, Radio Frequency Identification (RFID), which Britain is now considering building into car license plates. See article here. Information captured from that chip could reveal, for example, if a driver’s license has expired. With Williams on the books, cops could then order passengers in – or out – of the car after making an RFID stop. The State of California now has legislation pending to limit RFID chips. See article here.
Steven Kalar, Senior Litigator, N.D. Cal. FPD. Website available at www.ndcalfpd.org
Thursday, August 18, 2005
US v. Williams
US v. Fidler
Jefferson v. Budge
US v. Cirino
You lovely island . . .
Island of tropical breezes.
Always the pineapples growing,
Always the coffee blossoms blowing . . .
Puerto Rico . . .
You ugly island . . .
Island of tropic diseases.
Always the hurricanes blowing,
Always the population growing . . .
And the money owing,
And the babies crying,
And the bullets flying.
I like the island Manhattan.
Smoke on your pipe and put that in!
I like to be in America!
O.K. by me in America!
Ev'rything free in America
For a small fee in America!
Well, suppose one of the gang got in trouble in Puerto Rico, could the court use his prior Puerto Rican convictions to enhance his sentence as a career offender? After all, Puerto Rico is not a state, but a Commonwealth. Its status is somewhat different, but is more akin to a foreign or tribal conviction. As for counting the priors for recidivist purposes, the 9th decides "Yes". It held that Puerto Rico is treated as a state in most matters, and that this issue has been raised in other circuits (notably the First, that has appellate jurisdiction). The Puerto Rican constitution provides the protections that the federal constitution gives almost verbatim. Thus, the priors can trigger career offender status. This decision of course has implications for other Commonwealths, and requires an careful examination of both their proffered rights and the rights in practice (the case of Indian courts is instructive in this matter).
US v. Hall
Sunday, August 14, 2005
A defense loss still provides useful language for future cases, as Judge Betty Fletcher (left) cleans-up sloppy analysis in previous Ninth Circuit cases on harmless error -- a showing that is the government's burden. United States v. Gonzalez-Flores, __ F.3d. __, 2005 WL 1924724 (9th Cir. Aug. 12, 2005), available here.
Players: Authored by Judge Betty Fletcher.
Facts: Three witnesses in a two-day trial put Gonzalez-Flores as an alien-smuggler. Id. at *1. Over defense objection, the government introduces at trial testimony that two of the girls smuggled suffered from extreme heat stroke - one almost died. Id. at *2. On appeal, the government didn’t bother to argue that this was harmless error. Id. at *5.
Issue(s): 1. Did the admission of the heat-stroke evidence violate FRE 403? 2. Can the Court raise harmless error sua sponte? 3. If this was erroneous, was it harmless error?
Held: 1. Re: FRE 403: "[W]e conclude that the evidence should have been excluded under Rule 403, which prohibits evidence whose probative value is substantially outweighed by the danger of unfair prejudice . . ." Id. at *3.
2. Re: Sua sponte Consideration of Harmless Error: "[T]he government's failure to argue that an error is harmless does not categorically preclude our consideration of that question." Id. at *6.
3. Re: Harmless Error: "The record here does not merely provide a fair assurance of harmlessness, . . . it leads us inexorably to the conclusion that the error's harmlessness is beyond serious debate." (internal citations and quotations omitted).
Of Note: The most interesting aspect of this opinion is the harmless error discussion. Judge Fletcher goes to considerable effort to correct sloppy language in previous decisions regarding harmless error. Id. at *5 & n.3. As the decision explains, "we find in our case law a handful of stray passages reciting the harmless-error rule in an inartful fashion that reverses the presumptions delineated in Morales by conditioning reversal on a showing that the non-constitutional error more likely than not affected the verdict rather than requiring reversal unless the error more likely than not did not affect the verdict." Id. (emphasis in original). Judge Fletcher corrects that erroneous approach: "Fortunately, two fairly recent opinions, one in the criminal context and one in the civil context, have thoughtfully considered the nature of the harmless-error inquiry and confirmed that an error presumptively requires reversal and the burden is on the government to demonstrate otherwise by showing that the error was more probably than not harmless." Id.
How to Use: The downside of Gonzalez-Flores is the sua sponte consideration of harmless error - despite the government’s failure to brief that issue. Id. at *6. Despite this unwelcome new rule, the opinion is still very useful for its forceful view of the correct harmless error approach – emphasizing the burden that squarely falls on the government. Footnote 3 of the case should be a required quote in any defense appellate brief addressing harmless error.
For Further Reading: Judge Betty Fletcher has served on the Ninth Circuit since 1979. See article here. In 1995, her son Willie Fletcher was nominated to the Ninth by; he was re-nominated in 1997. Id. Controversy over the mother-son pair on the appellate court was avoided (and Willie’s confirmation was smoothed) when Betty Fletcher took senior status in the Ninth. Id.
Anyone who has argued before Judge Betty Fletcher knows that she has a distinctive voice. Listen to oral argument of Silva, here, type-in "04-99000." That voice has consistently been one of the most powerful defenders of constitutional liberties in the Ninth Circuit.
Steven Kalar, Senior Litigator N.D. Cal FPD. Website available at www.ndcalfpd.org
Friday, August 12, 2005
US v. Gonzalez-Flores
US v. Saecho
US v. Mayfirld
US v. Dorsey
US v. Beck
Tuesday, August 09, 2005
US v. Ware
US v. Dowd
US v. Dowd
US v. Dowd
US v. Von Brown
Sunday, August 07, 2005
The Ninth avoids deciding an interesting twist on Joint Defense Agreements, and while doing so lays out the ground rules for mounting three different types of interlocutory appeals. See United States v. Austin, __ F.3d __, 2005 WL 1803902 (9th Cir. Aug. 2, 2005), available here.
(Joint Defense Agreements are one topic at the Complex Litigation Seminar, to be held Aug. 18-20 at the San Francisco Mark Hopkins (right). Further information below).
Players: Senior Judge Ferguson sidesteps the Joint Defense Agreement ("JDA") issue for the Court.
Facts: RICO defendants had a joint defense agreement, on one of them flips and cooperates with the government. Id. at *1. The government moves to strike or clarify the JDA, permitting the snitch to testify as to communications made between defendants – outside of the presence of counsel – before the snitch withdrew from the JDA. Id. The district court ruled "that statements made during discussions between inmates in their cells with no lawyers present are no covered as confidential communications under the joint defense privilege." Id. The defense brought an interlocutory appeal. Id. at*2.
Issue(s): 1. Is this decision by the district court an appealable interlocutory order? 2. Are communications between defendants – outside of the presence of counsel – protected by a JDA?
Held: 1. Re: Interlocutory Appeal: "We hold that the District Court’s order is not immediately appealable under the collateral order doctrine, the Perlman rule, or as a writ of mandamus and, therefore, dismiss Defendants’ appeal for lack of jurisdiction." Id. at *1. 2. Re: JDA and confidential communications: "[W]e do not decide whether the joint defense privilege ever protects inmate-to-inmate conversations in the absence of counsel." Id. at *8.
Of Note: This case is primarily interesting for its thorough discussion of three types of interlocutory appeals: i) the "collateral order" doctrine, id. at *2-*5, the "Perlman Rule" (relating to subpoenas and discovery orders), id. at *6, and a petition for a writ of mandamus, id. at *7. Counsel hoping to take up a ruling before trial (and want defense counsel hasn’t wanted to do so?) should read this decision first – scenarios permitting interlocutory appeal are few and far between.
How to Use: The defense seemed tantalizingly close to getting to the merits of their argument under the "collateral order doctrine." Id. at *6. The appeal ultimately stumbled because the defense sought disclosure of the snitch’s statements, to identify any communications that might have been confidential. Id. This was too vague for the Court, which held that absent identifying specific privileged statements the defense had not shown that their claim was effectively unreviewable on appeal from judgment. Id. at *5. If raising an interlocutory appeal, anticipate this third hurdle of the collateral order doctrine and salt the appellate record with declarations – under seal, if necessary – specifically identifying the injury that will be unreviewable if the Court of Appeals does not take immediate action.
For Further Reading: JDAs are a hot and controversial topic in complex cases. See article here. The issue has been muddied by a notorious and much-debated decision in the Ninth Circuit, United States v. Henke, 222 F.3d 633 (9th Cir. 2000). Former N.D. Cal. Chief Judge Patel has weighed in an equally controversial decision, in United States v. Stepney, 246 F. Supp. 2d 1069 (N.D. Cal. 2003) (addressing chaos in which I had a hand).
JDAs will be one of many topics discussed at the upcoming Complex Case Seminar, hosted by the Administrative Office of the United States Courts at the Mark Hopkins hotel in San Francisco, (pictured above) from August 18-20. Some spaces are still available - CJA counsel and Federal Public Defenders may attend. To enroll, go to http://www.fd.org.org, and click on the "Training" button.
Steven Kalar, Senior Litigator N.D. Cal FPD. Website available at www.ndcalfpd.org