Tuesday, August 30, 2005

US v. Johal,

No. 03-30579 (8-30-05). What if cold pills had warnings like: Possession of large quantities of these cold pills may give you reasonable cause to believe that they could be used to manufacture meth. That would certainly put defendants on notice. As it is now, a poor defendant, like here, ran a convenience store, and started selling hundred of boxes of pills to individuals. he kept the pills in the back of the store because they were being stolen, and sold the quantities to select individuals (two of whom were CIs). (Sounds like franchising to me). The first trial ended in a hung jury, with the issue of contention being "reasonable cause to believe" that the bad chemicals will be sued to manufacture illegal substances. The second trial ended in convictions. Defendant argues now that the standard of "reasonable cause" in 841(c) criminalizes conduct without a mens rea. The 9th rejects the issue, pointing to precedent in US v. Kaur, 382 F.3d 1155 (9th Cir. 2004), where the court defined the standard of "reasonable cause to believe" as requiring "to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person knowing the same facts, to reasonably conclude that the pseudoephedrine would be used to manufacture a controlled substance." Id. at 1156. A defendant is required to "subjectively" know facts, but that he is not required to know that manufacture is to occur. The standard of facts is not purely objective but turns on facts actually known by the defendant. Here the defendant sold in bulk quantities to repeat customers, and the CIs told the defendant specifically they ere going to make "crystal." The defendant also loses in arguing that actual production is required. The case is remanded in light of Ameline.

US v. Murguia-Oliveros,

No. 04-50612 (8-29-05). "The Fugitive" was about the dogged pursuit of a doctor wrongfully convicted of murdering his spouse. In "The Fugitive 2: Revenge of the Tolling", the defendant as on SR for an illegal reentry. One of the conditions was that he wasn't supposed to return illegally etc. Well, his PO caught wind that he had been arrested on an unrelated charge, and sent a certified letter to him stating he should report to the PO. Right. In fact, the defendant didn't show up, and in January of 2004, the court issued a bench warrant. This warrant was not based on an affidavit or sworn facts. Defendant's SR expired in September of '04, and he was arrested in November of '04. He argued that because the warrant wasn't based on sworn facts, as is required for arrest after the SR term expires, the defendant couldn't be charged with violation. Vargas-Amaya, 389 F.3d at 907. The 9th wasn't about to reward a defendant a "get out of jail" free pass because of this, and so holds that the period of time he absconded and became a fugitive (the 8 mos) tolled the SR term, and so it was still running at the time of his arrest and revocation hearing. The 9th explains that "fugitive status" occurs when the defendant absconds. It points to Crane, 979 F.2d 687 (9th Cir. 1992), where a defendant walked away from a halfway house, and the 9th concluded that the term was tolled when he stopped serving the terms of SR by leaving the place he was supposed to serve it. The 9th doesn't go so far as to say that when the defendant left Mexico to return to the US, the SR term was tolled (although it could be read that way), but it was his failure to report when ordered by his PO (p. 11701) to do so. Defendant argues that tolling is too severe a sanction, but the 9th disagrees.

Monday, August 29, 2005

Okai: doctrine of constitutional avoidance requires that federal sentencing statutes be construed to require proof beyond a reasonable doubt

Professor Berman gave us a heads up on a great decision from Judge Bataillon in the District of Nebraska holding that the doctrine of constitutional avoidance, as well as the reasonableness requirement of Booker, requires that contested aggravating facts at sentencing be resolved beyond a reasonable doubt. Mr. Okai pleaded guilty straight up to using counterfeit securities. The indictment did not charge relevant conduct beyond a single incident. The government (and the presentence report) used other conduct to increase the amount of loss. The defendant contested any loss beyond his admissions during and after the plea.

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):

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

No. 04-50260 (8-26-05). The 9th considers whether a prior felony conviction under California's sexual battery statute, Cal. penal Code 243.4(a) constitutes a "crime of violence" under the guideline's 2L1.2 and its commentary (requiring use or attempted use of physical force and includes such offenses as forcible sex offenses) . The 9th holds it is categorically NOT. The statute is overinclusive. It includes touching conduct that does not require use of force and although there is a unlawful restraint element too, it need not be physical. The 9th explains that physical contact with an intimate body part needs to have force to make it a categorical crime of violence under the guideline's definition and Rule 16(a). The touching could be ephemeral, so long as it is offensive. This was the 9th's holding in Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. 2004), involving a similar Oregon statute. "Unlawful restraint" can be exercised through psychological pressure or authority; it need not involve threat or physical force. The 9th then uses a modified categorical approach, and finds that there is nothing in the plea or judgment to support force. The 9th distinguishes its precedent involving sex batteries or contact with minors, because force is presumed with a minor. The recent decision in Lisbey v. Gonzales, 04-70557, 2005 WL 2000975 (9th Cir 2005) held sexual battery was a crime of violence under 18 USC 16(b) and therefore was an agg felony under 8 USC 1101(a)(43)(F). That case defines a crime of violence as an agg felony for immigration purposes more broadly than under the guidelines (rule 16(b) has a "risk" factor).

US v . Ortuno-Higareda

No. 04-10257 (8-26-05). "You gotta tell them" is the moral of this somewhat surprising decision. The 9th (Wallace) considers a defendant facing a SR violation for committing another offense: in this instance, an illegal return to the US. The problem with the violation and revocation, however, is that he got a time-served sentence on the offense (illegal reentry) which meant that he was whisked from the courtroom and handed over to the then-INS for deportation. He never got a copy of the standard or special SR conditions. The gov't argues that it was "understood." Well, the 9th wasn't going that far. The 9th considers through whether he was orally told about the conditions. A review of the transcript reveals that the defendant was advised of one special condition ("don't return illegally") but not the standard condition of not violating offenses. The petition to revoke only had the standard condition violation. In dissent, Rawlison argues that the warning about not returning illegally logically means that he was also apprised of not violating offenses, and so he should be considered to have been informed. The 9th shakes a finger at the gov't in not making sure that the defendant as told, and urges courts to make sure that the defendant is given copies. On a jurisdictional issue, the 9th considers whether a petition can be revoked without a warrant before the time expires. The 9th holds that a warrant is required to be filed before the time expires when the revocation is held after the term ends. That isn't the case here, where the revocation came when the term was still running.

Sunday, August 28, 2005

Case o' The Week: AEDPA, SCHMEDPA, Recall the Mandate in Crawford

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

No. 03-10377 (8-25-05). In a firearms case, the 9th addresses a guideline issue: what does it mean to have an "altered or obliterated" firearm serial number. If a serial number is altered, there is a two level increase under 2K2.1(b)(4). The 9th defines "altered or obliterated" as being materially changed in a way that makes accurate information less accessible. The 9th further states that a serial number that is not discernible by the naked eye, but remains detectable via microcopy, is altered or obliterated. This is supported by the First Circuit's interpretation in Adams.

Williams v. Roe

No. 03-56064 (8-24-05). The use of an amended offense statute that eliminated judicial discretion in state sentencing was an ex post facto violation. The prior statute allowed the court to sentence the defendant convicted of different offenses for the same act (robbery and kidnapping for example) to be sentenced on either of them; the amended statute required a sentence on one of the provisions, but the higher one. This clearly was a heightened punishment.

US v. Cervantes-Flores

No. 04-50113 (8-24-05). This 1326 case raises the interesting issue of whether a Certificate of Nonexistence of records was a violation of the sixth amendment. the 9th found that it was not. The CNR records facts that were present before the onset of litigation, and that it was routine (like the witnesses of a deportation). It also does not resemble testimonial evidence: it has none of the dangers of police questioning or interrogation; this is a "negative" public record/business record.

Arnold v. Runnels

No. 04-15194 (8-24-05). The 9th concludes that "no" means "no" when it comes to statements. Here, petitioner was asked questions. he responded. The police then asked if they could record. he said "no" emphatically. The police nonetheless turned on the recorder, and then proceeded to ask petitioner a long series of questions about the offense that he responded with "no comment." This was played before the jury. The 9th wondered what part of "no" the police didn't understand when it came to the recording: he invoked his right to silence at that point, and the the police to keep on questioning with the recorder running was a violation. The 9th found prejudice because the officer's questions connected the petitioner to the crime; it was like the officer testifying. The petitioner had presented a defense, and witnesses that placed him elsewhere. This fact -- other witnesses -- played in the dissent (Callahan), who argued that the jury heard other evidence, and that the guilt was overwhelming.

US v. Weiland

04-30091 (8-24-05). This is a roadmap of evidentiary challenges to records of convictions. The defendant was ACCA. He challenges the admission of his prior convictions (four burglaries). The 9th goes through the multiple layers of challenges, complicated by the fact that the certification was done on a fax. The district court admitted the contents of the "penitentiary packet" (fingerprints, photos and convictions) under the certification of FRE 902(11). This was error because it was not under seal nor properly certified and written notice was not given. However, the 9th found that it could be admitted under 902(2) and (4)(public documents not under seal and certified public documents). On this point, Tashima dissented, arguing that the fax indicated that the official didn't have possession of the originals, and so could not say that they matched nor could make comparisons. The fax undercuts the certification or assurance of truth that is required. The 9th also finds that the district court erred in admitting the evidence under the "regularly conducted business" exception of 803(6), but that the previous convictions could come in independently under 803(22)2)(evidence of a final judgment to prove an element) and the fingerprints/photo comes in under the public documents exception of 803(8). The 9th find error two (three errors all told) in admitting four convictions when one would have been enough to show he was a prohibited possessor. This again was harmless because of a limiting instruction and the evidence. There was no Crawford violation because the routine attestation of officials of routine records is not testimonial as meant, even though it was prepared for litigation. The 9th was mindful that requiring the presence of such custodians would be a tremendous burden on the courts. There was also no need to see if Roberts also applies as inherently trustworthy because the evidence comes in under nonhearsay exceptions.

Inthavong v. Lamarque,

No. 03-57075 (8-23-05). The 9th (O'Scannlain) wades the "harmless error" waters of AEDPA and Brecht. In a decision regarding the voluntariness of a confession in a state homicide trial, the court holds that the Brecht standard is still applicable; that is, does an error have a substantial effect or influence on the verdict. AEDPA didn't do away with this analysis, but grafted on another test, which is whether the state's application of harmless error was unreasonable. In this case, where the petitioner testified substantially like his previous statement, and another statement was also admitted, the state's decision that any error was harmless was not unreasonable.

US v. George

No. 04-10307 (8-23-05). Remember your tax course when the issue of "control over assets" was the subject of a lecture. Well, a variation of that occurs when a receiver gets paid, but since the pay can be "disgorged" (great word) by the court, does the receiver really have control, and more important, doe she have to declare it as income? "Yes," said the 9th in this tax case. The receiver has control, and so has "claim of right" for tax purposes. The 9th also rejected a "good faith" defense in believing that he could wait.

US v. Stewart,

No. 03-10662 (8-23-05). The defendant had a rough go of it before a federal judge at trial. While at a FCI, he engages another inmate in discussion about wanting to kill the judge, and set an example. Idle conversation soon becomes plans, and the inmate, seeing a chance to better his situation (information is the coin of the realm where he is at), records him for the FBI. The defendant was convicted at trial and unsurprisingly got the max. On appeal, the question becomes what "quantum" of proof is required for a conviction; in other words, when does venting become a criminal offense. In this case, the 9th finds that the expressed anger passed over to criminal intent when the amount of money for a hitman was agreed upon, and the exact manner of killing was arrived at. The 9th did find that two false statements were multiplicitous as they occurred during the course of investigation but the latter had no effect upon the investigation (the FBI went back o confront the defendant after the investigation was completed).

Means v. Navajo nation

No. 01-17489 (8-23-05). This is a "Means test" to Indian tribal jurisdiction over non-tribal Indians. The 9th, following the Supremes in Lara v. US v. 541 US 493 (2004), holds that Congress does indeed have the constitutional power under the 1990 Duro response amendment to extend tribal jurisdiction over non-tribal Indians within the tribe's Reservation. Such power is inherent (the 9th foreshadowed this in Enos -- argued by AFPD Zig Popko, D. Az). The 9th is troubled with the equal protection challenge, acknowledging that the Constitution would forbid permitting jurisdiction over an Asian or African American exclusively. Indians though are different because they can be exempt from some constitutional protections (first amendment, or tribal preferences) and because of the Indian commerce clause. In addition, there is Antelope that characterizes tribes as political rather than racial. Due process and treaty challenges are also dismissed. Bottom line is that Russell means, an Oglala-Sioux, living on the Navajo Reservation, is subject to the Navajo tribal jurisdiction.

Wednesday, August 24, 2005

Weiland: ACCA statutory argument finds support in strange places

In a case mostly about other issues, the Ninth Circuit briefly addressed a claim that the Armed Career Criminal Act is constitutionally infirm under the Sixth Amendment in United States v. Weiland (available here). The disposition of that claim needs to be sharply distinguished from a separate statutory argument that apparently was not presented. The argument is that, as a matter of statutory construction, the ACCA must be reassessed in light of the constitutional doubt that the Supreme Court in Shepard and Haley has explicitly thrown on Almendarez-Torres, requiring reassessment of previous construction of the statute. As blogged here, here, and here, the statutory re-construction of the ACCA is directly analogous to the Ninth Circuit’s en banc re-interpretation of the federal drug statutes in Buckland to avoid constitutional doubt regarding enhancements based on drug quantity.

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,

No. 04-70557 (8-22-05). Unsurprisingly, sexual battery under California Penal Code 243.4(a) consitutes an agg felony for removal purposes. It is essentially sexual touching while another is restrained for sexual gratification purposes. All the other circuits that have considered sexual battery have also found that it is a crime of violence.

Hirschfield v. Payne

No. 04-35437 (8-22-05). The 9th grants relief for a petitioner who wanted to represent himself. Here, petitioner had sought removal of counsel several time son the eve of trial, and his request was granted. He tried it again when trial was looming, but the judge found that it was a delaying tactic, and denied the request. the trial then got continued because of schedule conflicts for several weeks. The petitioner then renewed his request when the case was reassigned to a different judge. The judge conducted a new hearing and didn't reaffirm the prior court's ruling. At the new hearing, the judge denied the request because the petitioner "didn't know the legal technicalities" nor the legal rules. Error! The 9th grudgingly acknowledges that the judge said the wrong thing, and that a defendant's unsophistication or lack of knowledge was insufficient to deny a Faretta request. If the judge has reaffirmed the previous ruling on the basis of delaying tactics, that would have been fine. The court though ruled on a different and inappropriate basis.

US v. Chong

No. 03-10222 (8-18-05). The 9th holds that a conviction for murder-for-hire requires the payment for such an act (think of it as "consideration" for an offing). In this case, a Chinese gang has aspirations of expanding its market share, and embarked upon a hostile take-over of a Boston enterprise. The henchmen that were sent to do the deed went, it seems, for the good of the cause. The government arguess that there was evidence that each was paid $100 and that it was known that their actions would be rewarded. The 9th acknowledges that their actions might advance the objective,and there might be many reasons why they did what they did, but the statute of murder-for-hire 18 USC 1958 requires compensation for the element to be satisfied and insufficient evidence was presented. (Concerning underlings desire to please their leader, see King Henry II's wistful thinking out loud to his knights regarding Archbishop Thomas Beckett: "Who will rid me of this troublesome priest." While Henry was excommunicated for the murder, he was eventually rehabilitated and brought back into the fold). The 9th affirmed the other numerous RICO convictions in a memorandum.

Sunday, August 21, 2005

Case o' The Week: Get out of the car! Get into the car! Williams, the Fourth, and car passengers

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

No. 04-10213 (8-16-05). Get out of the car! Get in the car! What's a suspect to do when the police are ordering him about and he just wants to comply, while protecting his 4th amendment rights? Well, whatever you do, when you throw the weapon, make sure it lands softly. Here, the police pull over a car. Oh yes, the reason of course the dangerous "light out above the license plate". The driver was arrested for failing to have a license or identification. In the meantime, the passenger (Williams) got out to stretch his legs. The officer ordered him back into the car. She then heard a "thud" that later looking revealed to be a revolver six feet away from the car nestled on "recently fallen pine needles" (nice touch). The defendant argues that ordering him back into the car was a seizure and a violation of his 4th amendment rights. "Not so" said the 9th. If the offcier can order you out for his or her safety, she can also order you back in. The "in or out" is permissible under Wilson, 519 US at 413-14. Other circuits have held that officers can order passengers to remain inside cars and no unreasonable seizures occurred. The intrusion and time is minimal and the officer was maintaining the status quo. There is also the safety issue for the officer. The 9th sidestepped the gov't's "lack of standing" issue because the gun was abandoned by being tossed. The 9th passed on the opportunity to say that he obviously has standing even while seated.

US v. Fidler

No. 05-50444 (8-16-05). So if K from Kafka's The Trial was detained in the 9th and it was set at an amount he couldn't meet, could he argue that it violated the release provisions of the bail statute of setting reasonable conditions? In this case, the defendant had been released with the condition he post $300,000 secured by real property (probably the cost now of a 600 sq ft studio condo in a seedier portion of L.A.). He couldn't meet the bond (the FTC had frozen his assets from a civil suit). He argued that the financial condition set is so high that it is a case of not being granted bond, and therefore is unreasonable. The bail statute, 3142(c)(2), prohibits the court from setting a bond so high as to result in detention without findings of danger or risk. Alas, the 9th doesn't see the catch-22 quality of the argument (the only way a defendant can be trusted to appear is if he meets a bond that is set so high that he can't meet it). Rather, the 9th joins its "sister circuits" is parsing the language as meaning that the amount set, with findings, is what is required to secure a defendant's presence. The defendant's detention is "not because he cannot raise the money, but because without the money, the risk of flight is too great." Gotcha. The 9th goers on to find that the court looked at the issues, and the setting of the bond was reasonable.

Jefferson v. Budge

No. 03-16932 (8-16-05). The 9th holds that Rose by any other interpretation still smells as sweet when it comes to mixed petitions. In this case, the petitioner had a mixed petition in federal court containing exhausted and unexhausted state claims. The court dismissed without giving the petitioner the option to proceed with his exhausted claims. the petitioner went back o state court, exhausted the claims, only to go back to federal court and be thrown out for being time barred. The state argues that the recent Pliler decision by the Supremes, which holds that district courts are not required to give certain advisements (the stay-and-abeyance option) before dismissing a mixed petition. The Supremes did not abrogate Rose, and indeed, quoted from it. The petitioner must be given the option of proceeding, although not necessarily under Pliler given further advisements. This is especially important here, because Rose has thorns, and the petition, if dismissed, would already be outside the AEDPA time limits. The 9th also held that equitable tolling occurred and so Rose can be cultivated to allow him to refile in a timely manner.

US v. Cirino

No. 03-10711 (8-15-05). What can one make of Puerto Rico. In "West Side Story" the competing views were sung by an unusually musically talented Puerto Rican street gang:

Puerto Rico,
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

No. 04-50193 (8-15-05). The 9th confronts whether Crawford is applicable to supervised release (SR) revocation hearings. The 9th holds that it is not. Crawford is taken as a trial right. The Supremes in Morrisey recognized that parole hearings do not get the full range of constitutional rights, and the analysis is one of due process rather than confrontation. This holding follows both the 2nd and 8th Circuits. Turning to this case, where the violation was for domestic violence, and the victim could not be found, the 9th further held that due process, as outlined in Comito, was not violated by allowing hearsay testimony of the abuse. There were hearsay exceptions that applied (medical) and there were nonhearsay evidence (photos) that supported the revocation.

Sunday, August 14, 2005

Case o' The Week: Fletcher Tackles Harmless Error in Gonzalez-Flores

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

No. 03-10656 (8-12-05). Defendant was convicted of alien smuggling. At trial, overthis objection, the court permitted testimony as to the injuries suffered by two of the aliens: two young girls who suffered heat stroke and came close to dying. The 9th held that such evidence should have been precluded under FRE 403 because it added little to the charge (were aliens smuggled in) and added a lot to the sympathy and plight of the aliens at the hands of the defendant. the district court's decision to give the gov't some latitude to set the context and explain why the defendant went for water (because he was responsible) was error. Although the gov't did not argue harmlessness if there was error, the 9th nonetheless discusses whether the court of appeals sua sponte can find harmlessness. It decides it could because the record was slight, the evidence overwhelming and the context of the error would not result in unfairness. the 9th also held that the defendant didn't waive a Booker challenge, error wasn't invited by arguing that certain evidence wasn't in the elements, and so the case is remanded in light of Ameline.

US v. Saecho

No. 04-30156 (8-12-05). Defendant was on state probation for domestic violence. He was informed by his state probation officer that he had to answer all questions or face revocation. He also couldn't possess firearms. At the first meeting with probationer, his probation officer kept pressing him about weapons, and pointing to the provision. The defendant than admitted that he had a rifle he used for deer hunting and hadn't decided what to do with it yet. The probation officer went to the defendant's apartment and found the rifle. While past practice had been to allow the probation to get rid of the weapon in 24 hours, the officer here took the evidence to the feds, which resulted in a felon-in-possession charge. On appeal from the district court's suppression of the evidence because of a fifth amendment violation, , the 9th (Reinhardt) affirmed the suppression. The 9th recognized this as an impermissibly coercive penalty threat that abridged defendant's fifth amendment rights as recognized by the Supremes in Murphy. The state (Oregon) cannot penalize the defendant/probationer for remaining silent, as is his right.

US v. Mayfirld

No. 02-50381(8-10-05). Sometimes if you didn't have bad luck you'd have no luck at all. Defendant won a significant severance case a few years ago (inconsistent defenses because both codefendants pointed at one another as being the drug trafficker). The case went back, and now defendant is up on appeal again. He also got socked with an enhancement for a prior drug conviction under a 21 USC 851 notice (prior drug conviction) which had a 20 year mandatory minimum. The 851 notice was filed in the first trial, but not before the retrial. Defendant argues that the formal notice had to be refiled, as the notice triggers the mandatory, and failure to file means it is not applicable. The argument is quasi-jurisidictional. Alas, the 9th finds that filing it once is all that is required. The statute state that it has to be filed before trial, and it was here. This gives notice, and on retrial there is no need to give notice again This aligns with other circuits.

US v. Dorsey

No. 04-30152 (8-10-05). One has to wonder about defendants. Here, defendant was found on High School property: he wasn't a student; he made up a name for the student he was waiting for; he violated all sorts of school policies, and yet the police warned him to stay away. Did he? Of course not. he comes back later that day and is driving recklessly (supposedly) in the parking lot. He was arrested when he was identified as the possibly the same guy (he was), and he was found with drugs and a gun. Defendant challenged the conviction of having a firearm in a school zone. Predictably he lost because Congress had put in the jurisdictional commerce clause requirement that the gun had to move in state commerce. The 9th also held that there was probable cause for arrest on a couple different state grounds. In dissent, Rawlison argues that probable cause did not exist for trespassing.

US v. Beck

No. 03-30470 (8-10-05). This is an interesting identification appeal. A bank robber was caught on videotape. The police showed the photo to witnesses before showing them a photo line-up. In the photo line-up two of the three picked the defendant; a third picked someone else. At trial, the gov't called defendant's probation officer (described as having a "professional relationship" with the defendant. The first trial hung; the second resulted in this appeal. The 9th found no problem with the eyewitness identification. It was not coercive, nor fundamentally unfair, as the photo line-up was randomly generated and the photos were close enough. The probation officer had enough a relationship (about 70 minutes of face time over the months) to testify that the surveillance photo looked like the defendant. His testimony was permitted under FRE 701.

Tuesday, August 09, 2005

US v. Ware

No. 03-15609 (8-5-05). This was a bank robber case, where the testimony of the FDIC insurance (the jurisdictional hook) was presented by tellers stating that the bank was presently insured and that they had seen the certificate. The "present tense" has lead to reversals in other cases (see, e.g., Ali, 266 F.3d at 1244), but the span of time between the robberies and the trial were years (2 + to 4+ years) as opposed to the four months here. The interest in "present tense" of the FDIC certificate increases over time. Moreover, the tellers here saw the posted certificates. This combination of seeing the certificates and the short time defeats the sufficiency of evidence challenge.

US v. Dowd

No. 04-30062 (8-8-05). Defendant was convicted of violating the federal interstate domestic violence law in that he forced his girlfriend to cross state lines. On appeal he raised sufficiency of evidence, arguing that the girlfriend had ample chances to escape. The 9th would have none of it, discussing at length the facts of force, and threats, and intimidation that bound the companion to the defendant as he fled from the law (he had been released on a drug charge) and scored meth in a Western tour. The 9th looked at the element of coercion which did not require constant surveillance but that for the statute to be met, but coercion means fear or duress, and the psychological pressures can also meet the element. In sentencing the trial court considered the factors and went with a consecutive rather than a concurrent sentence; this was not an abuse of discretion given the findings of the nature of the offense, and that court's finding that the defendant was not capable of rehabilitation. There was no Booker error. The 9th also found no constitutional violation in using sexual assault as an enhancement as the indictment referred to sexual assault as the crime of violence committed against the victim. The case is remanded in light of Ameline.

US v. Dowd

No. 04-30062 (8-8-05). Defendant was convicted of violating the federal interstate domestic violence law in that he forced his girlfriend to cross state lines. On appeal he raised sufficiency of evidence, arguing that the girlfriend had ample chances to escape. The 9th would have none of it, discussing at length the facts of force, and threats, and intimidation that bound the companion to the defendant as he fled from the law (he had been released on a drug charge) and scored meth in a Western tour. The 9th looked at the element of coercion which did not require constant surveillance but that for the statute to be met, but coercion means fear or duress, and the psychological pressures can also meet the element. In sentencing the trial court considered the factors and went with a consecutive rather than a concurrent sentence; this was not an abuse of discretion given the findings of the nature of the offense, and that court's finding that the defendant was not capable of rehabilitation. There was no Booker error. The 9th also found no constitutional violation in using sexual assault as an enhancement as the indictment referred to sexual assault as the crime of violence committed against the victim. The case is remanded in light of Ameline.

US v. Dowd

No. 04-30062 (8-8-05). Defendant was convicted of violating the federal interstate domestic violence law in that he forced his girlfriend to cross state lines. On appeal he raised sufficiency of evidence, arguing that the girlfriend had ample chances to escape. The 9th would have none of it, discussing at length the facts of force, and threats, and intimidation that bound the companion to the defendant as he fled from the law (he had been released on a drug charge) and scored meth in a Western tour. The 9th looked at the element of coercion which did not require constant surveillance but that for the statute to be met, but coercion means fear or duress, and the psychological pressures can also meet the element. In sentencing the trial court considered the factors and went with a consecutive rather than a concurrent sentence; this was not an abuse of discretion given the findings of the nature of the offense, and that court's finding that the defendant was not capable of rehabilitation. There was no Booker error. The 9th also found no constitutional violation in using sexual assault as an enhancement as the indictment referred to sexual assault as the crime of violence committed against the victim. The case is remanded in light of Ameline.

US v. Von Brown

No. 04-30219 (8-8-05). The 9th holds that enhancing defendant to career offender sentencing status did not violate Blakely or Booker. The 9th rejected defendant's argument that the prior convictions had to be proved beyond a reasonable doubt, pointing to prior precedent and of course Apprendi. The 9th also held that the issue of whether the prior convictions were "crimes of violence" was not a jury one, but legal, and the court could decide under the modified Taylor approach. The case is remanded under Ameline.

Sunday, August 07, 2005

Case o' The Week: Austin's Powers Not Enough for Interlocutory Appeal

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

Thursday, August 04, 2005

US v. Stafford

No. 04-30134 (8-3-05). The 9th upholds a warrantless search of an apartment by police under the "emergency exception." The smoke alarm was being tested by maintenance when he noted a strong oder that seemed like rotting flesh. He inspected the apartment, and found blood smeared on the walls, along with feces, and syringes littering the bathroom. Concerned that someone had died, the maintenance man told his supervisor and they called the police. The police came, and looked for the body. There was none. There were assault weapons and armor piercing bullets and a photo, that was traced to the defendant. The 9th concluded that the reports of a dead body, or someone hurt, justified the exception under an emergency. The emergency could have arisen because the blood might have indicated someone still needed help, or the syringes indicated an overdose. In dissent, Canby argues that the police had time to get a telephonic warrant: no body was seen by the maintenance person; the smell could be explained obviously by the syringes, and the toilet was stopped up; there were no moans or evidence of someone in need.

US v. Thomas

No. 03-56750 (8-3-05). This is an IAC petition. The petitioner was involved in two robberies. In the second one, an off-duty FBI agent saw the defendant and others running from a UPS store and looking suspicious. The agent followed them, a gun fight ensued, evidence found, and defendant eventually apprehended. He faced a multitude of charges, including Hobbs, robberies and firearms. Defense counsel conceded guilt on the UPS robbery but vigorously defended on the other charges, including who shot at the agent, use of guns and so forth. If the 9th went with a Strickland approach, it would have to decide whether the strategy fell below the standard expected, and whether there was prejudice. If the 9th adopted an elements approach, and considered the client abandoned by counsel (Cronic), then relief is required. The 9th opted for Strickland, in finding that there were sound reasons for conceding guilt on one charge to fight others and establish credibility (which is done in guilt phases of capital cases). Rymer wrote the opinion. B. Fletcher and Fisher concurred, clearly making the point that it is ineffective, and unethical, for a lawyer to decide to concede guilt without consulting the client. In this case, the lawyer doesn't remember if he told the defendant this was the strategy, and the defendant alleges he never knew. The guilt here though was so overwhelming that the prejudice standard was not met. The concurrence warns that: "It is deficient performance for an attorney to concede his client's guilt without prior consultation with the client, even when the concession relates to one charge out of several, and even where evidence of guilt is strong."

US v. Austin et al

No. 04-10576 (8-2-05). This is an attempt to get interlocutory jurisdiction for a district court's (ROS's) decision that a joint defense agreement (JDA) does not make privileged the discussions between codefendants absent the presence of counsel. The collateral order doctrine requires that the issue be conclusively determined, that it resolve an important issue, and that it be effectively unreviewable later. The defendants meet the first two factors but fail on the third because they cannot point to any privileged communication with specificity. Moreover, a ruling would not end prosecution, like double jeopardy, or involve such rights a free speech. Unlike other cases, the communications here may or may not be privileged, and could be on an ongoing issue. The 9th goes on to deny other grounds for extraordinary relief, such a s mandamus.

Monday, August 01, 2005

US v. Thomasian

No. 04-35360 (7-26-05). This is a forfeiture action against a Striker-12 shotgun. ATF concluded that the shotgun was a destructive device that the Secretary didn't exempt due to its bore size. Thomasian argued that the statutory language granting the power to the Secretary modified "shotgun shells" and not the antecedent "shotgun." The 9th didn't buy this reading, holding that the Secretary had discretion to exclude certain shotguns and shotgun shells. The 9th also held that the vesting of such discretion in the Secretary by Congress for excluding those shotguns that could be used for sporting purposes was not an unconstitutional delegation of authority. Congress could properly so delegate.

Silva v. Brown

No. 04-99000 (7-26-05). Brady material is a constitutional obligation that the state or gov't simply cannot shirk. In this state habeas case, the petitioner received a death sentence for the brutal murder of a victim and various life sentences for offenses against his girlfriend. This was a horrifying set of facts, involving abduction of an unsuspecting couple, torture and murder. Three defendants were involved; the state made a deal with one of them who had informed on the others. The problem was that the cooperating witness had suffered brain damage in a motorcycle accident and had a history of psychiatric problems. The deal struck with him was that he wouldn't have to undergo a psychological or psychiatric evaluation prior to testifying and this provision was kept secret. The issue of competence was never raised nor was the jury told of this secret deal. The district court had found a Brady violation in the material being favorable, and not being turned over. The court though held it was not prejudicial because the cooperator was crossed effectively and the jury acquitted petition of one murder where the only uncorroborated evidence was the cooperator's testimony, and so the jury must have found some buttressing evidence here. The 9th reversed and granted relief. The 9th unequivocally stated that the prosecutor had a constitutional duty to turn over this favorable information, and took the prosecutors to task. The 9th also found that the violation wasn't harmless. The testimony was key, especially about petitioner's "smile" at the account of the murders, and the cooperator was the only testifying witness to the murders. In terms of sentencing, the violation could not be harmless. This opinion contains good language on the obligations of Brady.