Case o' The Week: Bybee's Jewell, US v. Heredia

Judge Bybee (left) takes on the much-abused Jewell "deliberate ignorance" instruction in United States v. Carmen Denise Heredia, __ F.3d. __, Slip. Op. 14529 (Oct. 24, 2005), available here. An excellent decision that should be the centerpiece of any defense challenge to the instruction.

Players: (W.) Bush appointee Judge Jay S. Bybee pens a great decision (a welcome conservative author in a dangerous en banc world).

Facts: Carmen Heredia was stopped at an Arizona Border Patrol checkpoint; riding with her were her mother, aunt, and two of her young children. Slip. op. at 14533. After smelling perfume, a Border Patrol agent referred the car to secondary. Over 349 pounds of marijuana were found in the trunk. Id. The pot was covered with dryer sheets – a method used to conceal its odor. Id. Disputed facts at trial described how Heredia happened to be driving the car. Id. An agent claimed that the defendant admitted, however, that she had smelled the odor and that her aunt had explained that she had spilled Downey. Id. Heredia also said that her mom and aunt were acting strangely as they drove on the interstate. Id. at 14534. She even admitted that she wondered if there were drugs in the car. Id. Over objection, the district court gave the Jewell deliberate ignorance instruction. Id. at 14535.

Issue(s): Was the Jewell instruction warranted, i.e., was there “specific evidence that Heredia actually suspected that she was involved in criminal activity and, if so, that she deliberately avoided taking steps to confirm here suspicions in order to provide herself with a defense[?])” Id. at 14539.

Held: “[W]e conclude that the government failed to provide specific evidence that Heredia deliberately avoided specific steps to confirm or deny her suspicion in order to provide herself with a defense in the event of prosecution. The district court should not have issued the Jewell instruction, and the error is not harmless.” Id. at 14546.

Of Note: Heredia should be the centerpiece of any defense challenge to a Jewell instruction because – as the dissent vigorously observes – there was no small amount of evidence that the defendant actually knew what was up. First, Heredia admittedly was aware of the detergent smell – but Judge Bybee closely examines whether that put her on notice of smuggling. Id. at 14540-41. “Although such odors might alert agents, inspectors, and police who have been trained to detect them, ordinary citizens will not be on alert every time they smell detergent.” Id. at 14541. The Ninth also refused to require the defendant to stop on the shoulder of the interstate to check on suspicions of smuggling: “We doubt that Jewell demands an unsafe act in order to avoid the implications that Heredia deliberately avoided learning the truth.” Id. at 14543-44.

How to Use: “In the years since we decided Jewell, we have restricted the circumstances under which we will permit the instruction to be issued. We have warned that the instruction is rarely appropriate ....The government may not request a Jewell instruction to close the gaps in its case.” Id. at 14537. This language reveals the opinion’s tenor– it is openly skeptical of the hated (by us) wilful blindness instruction. When fighting a Jewell instruction, quote heavily from Judge Kozinski’s helpful dissent. Id. at 14548. He persuasively demonstrates that if Jewell was wrong in Heredia, it must be inappropriate in the vast majority of cases. (A sample Jewell opposition memo is in the ND Cal FPD web page briefbank, available here).

For Further Reading: The investiture of Judge Jay Bybee was on October 17, 2005. Judge Bybee – who sits in Las Vegas – was appointed to replace former Chief Judge Hug. Bybee was a former assistant attorney general at the DOJ. His most notable DOJ legacy is the 2002 memo that defines torture narrowly under federal law, arguing that only pain equal to death, organ failure, or permanent impairment of a significant bodily function rises to “torture.” See article here. The memo also concludes that the U.S. president can order torture. Id. After the prison atrocities in Iraq, the memo (which came to light after Bybee’s confirmation) has been famously controversial. It is, to be fair, unclear whether Judge Bybee or Boalt Law Professor John Yoo was the primary author of the memo. Whatever the case, Heredia certainly strikes a different tone altogether. The judge reportedly wants his headstone to read, “He always tried to do the right thing.” See article here. This decision is a right step towards that epitaph.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

US v. Collins

No. 04-50065 (10-28-05). The 9th affirmed a suppression of evidence based on an illegal arrest. The Secret Service was investigating stolen treasury checks. A CI reported that Pass wanted to sell him $400,000 worth of stolen checks. There were several meetings, and a rendezvous point was set, at an office building between the CI, Pass, and "others". The parking lot was under surveillance Pass was parked in one car. One car then drove up besides him in the parking lot, and another car almost at the same time drove up on the other side. Some later identified as Flores got out of one car and met with Pass. He went with Pass to meet the CI. Someone else then appeared -- the defendnat here, Collins. No one though knew where he came from. He wasn't seen exiting either of the cars (although his datebook was later found in Flores' vehicle). Defendant spoke with another driver, and then went into a fast food restaurant. He was arrested when he came out (Flores and Pass were picked up when they entered the office building). The district court found discrepancies between the audio portion of the surveillance and the testimony, and concluded that credibility was at issue. In any event, as the 9th found, "probable cause" is not a high standard, but it must connect the defendant to the possible offense. here, no one could say where the defendant came from, and his actions, talking to a driver in the parking lot and going to a fast food restaurant (Quizino's) didn't meet probable cause. the 9th found Pringle, the Supremes case with the passenger and dope (and arrest of all three) distinguishable because there was a private car there, and a limited pool of suspects, along with evidence throughout the car. here, it was a public parking lot at day, with cars coming and going.

US v. Ortiz-Hernandez, No. 03-30355 (10-27-05). The 9th gives the finger(print) to the exclusionary rule. Defendant was suspected of drug dealing. Suspicion though didn't rise to probable cause. Did this stop the police? Nope. Defendant was arrested, and fingerprints were taken as part of an investigatory strategy. The defendant was then charged as a 1326 reentry. The district court suppressed the fingerprints and denied the gov't's motion to take other exemplars. The district court also indicated that the arrest had a racial profiling element. The 9th grudgingly affirmed the suppression ("this call a close one" "we cannot say that the district court clearly erred") but reversed the denial of exemplars, superficially citing Lopez-Mendoza that identity is never suppressible. The majority is Tallman and Reavley (from the 5th). W. Fletcher stridently dissents ("I respectfully but emphatically dissent"). Fletcher argues, correctly, that the majority eviscerates the exclusionary rule. It is the same fingers, but different fingerprint samples. Fletcher also goes through Lopez-Mendoza and shows that the majority misreads it: Lopez-Mendoza read carefully states that identity from an illegal arrest cannot be suppressed but other illegal activities can. Identity for jurisdiction cannot be suppressed. Fletcher uses the codefendant in Lopez-Mendoza (Sandoval-Sanchez) as an example for he could move to suppress identity evidence from other illegal activity. Fletcher also reads the 9th's decision in Garcia-Beltran, 389 F.3d 864 (9th Cir. 2004) as supporting the denial of the fingerprints. In Garcia-Beltran, the gov't arrested without probable cause, and had taken fingerprints for an investigatory purpose, and the 9th suppressed. The majority distinguishes here by stating that those were the original fingerprints and the ones here were a different set. Fletcher scoffs at this. He also cites the 8th Cir.'s in Gurvara-Martinez.

US v. LaFromboise, No. 03-35853 (10-26-2005). This is a habeas that has a twist. The petitioner got a sentence of 720 mos (but hey, it wasn't a life sentence). The 9th gave relief on three gun counts, and remanded. The gov't then entered into a cooperation deal, and the court dismissed the three counts. The judgment though was never amended. Months go by, and the petitioner then files a post-conviction challenge alleging the usual counts (IAC, prosecutorial misconduct, guidelines etc). The petition was filed though long after the one year statute from the time to file cert lapsed. The district court dismissed as untimely, rejecting an equitable tolling argument because of lack of access to law books (FCI-Florence library was flooded). The 9th looked at the lack of amended judgment and held that there was no final judgment, and so one had to be entered and then the clock starts ticking. (Paez). In dissent, Callahan argues that the clock started ticking when the gun counts were dismissed and that the court should be affirmed.

US v. Heredia, No. 03-10585 (10-24-05). This is an important Jewell (deliberate ignorance) instruction case. The defendant was a passenger, with her children, mother and another, who was driving across the border into Arizona. The car reeked of detergent, which came from dryer sheets used to mask the smell of marijuana. The defendant thought the smell was strange, and was given various explanations for it. She also thought that the behavior of her mother was odd, and she suspected that some criminal activity was afoot. The gov't got a Jewell (deliberate ignorance) instruction and the defendant was convicted. On appeal, the 9th (Bybee!) stressed that the Jewell instruction was "rarely appropriate." It should only be given when the gov't presents specific evidence that defendant (1) actually suspected that she was involved in criminal activity; (2) deliberately avoided taking steps to confirm or deny those suspicions; and (3) did so to provide herself a defense. The 9th further emphasizes that the gov't can't request an instruction to fill in gaps in its case. The danger is that the jury may convict on suspicion or negligence. The 9th then discusses various cases that a Jewell instruction is inappropriate. If you need to oppose a Jewell instruction, this is the case. Kozinski, in dissent, scoffs st the holding, arguing that if any case had a sufficient basis for Jewell, this was it. He would also find harmlessness.

US v. Vidal, No. 04-50185 (10-24-05). The 9th (Rymer) holds that a California conviction for unlawful taking of a vehicle under Calif. Vehicle Code 10851(a) is a theft and constitutes an agg felony under 2L1.2(b)(1)(C) and so the eight level increase in the offense level is affirmed. The 9th rejects the argument that the state code is overly broad in that the state code is for a temporary taking (joy-riding) while the 9th has adopted a Model penal Code definition in Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)(en banc); and the 9th rejects that the code is overinclusive. The 9th states that the definition in Corona-Sanchez was from the 7th Cir., and encompasses even temporary takings. The overinclusiveness would go to such acts as promoting or instigating. The 9th believes this fits within the generic definition. The majority also believes that a modified categorical approach also make sit an agg felony. In dissent, browning argues that the state code includes accessories, and this is outside the ambit of aiders and abettors, and so is overinclusive because it brings in others than the principals. he also does not believe that the charging papers show that it was a theft.

Case o' The Week: Involuntary Meds a hard "Sell" for Ninth, Rivera-Guerrero

Jack didn't like Nurse Ratchet's involuntary meds in One Flew Over the Cuckoo's Nest. The Ninth isn't too keen on them either. Judge Stephen Reinhardt writes a great opinion acknowledging the need for adequate time to prepare a defense -- and lambasting the involuntary medication of defendants -- in United States v. Rivera-Guerrero, __ F.3d __, 2005 WL 2658967 (Oct. 19, 2005), case available here.

Players: Judge Reinhardt, in fine fettle, writes for a unanimous panel.

Facts: Rivera-Guerrero was a mentally ill § 1326 defendant. Id. at *1. The government moved to involuntarily medicate him, and the magistrate applied Sell v. United States, 539 U.S. 166 (2004). Id. at *2. The government’s expert argued for the involuntary meds, but gave little or no support for his claims of their efficacy. Id. Defense counsel requested a continuance so that she could research the medications and present her own expert; her request was denied. Id. The defense appealed the magistrate court’s order for involuntary meds to the Ninth. Id. at *3. The Ninth remanded because the district court, and not the magistrate, should decide these issues. Id. While that was on-going, the BOP administered involuntary meds anyway, in an “emergency procedure.” On remand, the district court adopted the magistrate’s recommendations - almost verbatim - and denied a stay because the defendant had already been medicated. Id. The defense appealed again.

Issue(s): 1. Continuance: “The dispositive question on this appeal is whether the district court abused its discretion in denying the defendant’s request for a continuance.” Id. at *5. 2. Sell Hearing: Can the United States government casually involuntarily medicate defendants? Id. at *3.

Held: 1. Core Issue - Continuance: “[W]e hold that the district court a used its discretion in denying the defendant’s request [for a continuance].” Id. at *5. There is a four-part test: i. the extent of appellant’s diligence ii. how likely the need for the continuance could have been met if it was granted iii. the extent the continuance would inconvenience the government and opposing party, and iv. the extent the appellant would have suffered harm as a result of the district court’s denial. Id. at *6. Here, the continuance met all four factors and should have been granted. 2. Sell Hearing: Involuntarily medication is disfavored, and there is much evidence that the procedures to be used by the BOP wouldn’t work. Id. at *5. Reinhardt cites several compelling articles questioning the efficacy of involuntary medication.

Of Note: One of Judge Reinhardt’s most-famous opinions is the right-to-die case, Compassion in Dying v. State of Washington, 79 F.3d 790 (1996), overruled by Washington v. Glucksburg, 521 U.S. 702 (1997). In Compassion in Dying, Reinhardt defends an individual’s right to choose the needle, and a dignified death. In Rivera-Guerrero, Reinhardt defends an individual’s choice to reject the needle . . . and demands a high showing when the government wants to inject dangerous drugs of uncertain efficacy into an unwilling defendant. Both opinions demonstrate a high regard for individual rights, and a great distrust of government intervention. Weren’t those once considered to be core conservative values?

How to Use: Use the case to stave off district court judges jamming us under the Speedy Trial Act – it is one of the best opinions written on the need for defense continuances. Of broader importance, Rivera-Guerrero should be cited heavily in every defense fight against involuntary medication. The opinion has broad language disfavoring forced medication, and cites favorably medical authority questioning the efficacy of the procedure.

For Further Reading: Someone should bring a § 1983 claim against the BOP shrinks. Of late we have seen the BOP blow every court-ordered deadline for evaluation, and simply warehouse a Spanish-speaking defendant referred for restoration of competency (there are apparently no Spanish-speaking therapists in FMC Butner.) One BOP doc recently explained in a Sell hearing that he would involuntary medicate our client with a certain anti-psychotic drug. He neglected to mention that the client was allergic to that drug, as was clearly reflected in the medical history. For the regulations controlling forced medication in prison, see the link here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

US v. Rivera-Guerrero, No. 04-50493 (10-19-05). The 9th (Reinhardt) issues a comprehensive opinion on involuntary medicating an incompetent defendant pretrial. The case of course is controlled by Sell v. US, 539 US 166 (2003) and Washington v. harper, 494 US 210 (1990). The 9th's holding emphasizes that the Harper test (is the defendant dangerous and is it in his medical interests) is preferred over the Sell test of balancing and whether it is in defendant's best medical interests. The court here denied a continuance to defense counsel who sought to rebut gov't experts seeking involuntary medication with various atypical, controversial, and dangerous drugs. The 9th chastised the court for refusing the continuance, and laid great stress on the liberty interests of defendants not to be involuntarily drugged. This is a roadmap for all issues of involuntary medication.

US v. Jose, No. 04-10202 (10-19-05). Defendants were convicted on predicate felonies and felony-murder, all alleged in the same indictment. The felony murder conviction was reversed on appeal, as was the use of a gun count. The defendants then argue that double jeopardy bars retrial because of their convictions on the lesser charges. The 9th rejects this argument, holding that a conviction on the lesser charges, in the same indictment and at the same trial, didn't bar the retrial on the greater charges. The theory is that jeopardy hasn't concluded on that particular charge with an additional element. The 9th comes up with a new procedure for district courts, urging verdict forms on lesser and greater charges, a staying of the lesser if convicted of the greater, but reinstatement if the greater is reversed on appeal. The 9th also urges looking to Congress for intent whether there should be sentences on greater and lesser (ed note: constitutionally that seems suspect). The 9th doesn't answer various questions about this (what if indicted on lessers, but no evidence -- ie first degree and second degree murder charges but with an alibi defense) and seems to have complicated an already complicated procedure. This also might call into question the 9th jury instructions for lessers.

US v. Mays, No. 04-50378 (10-19-05). The 9th holds that the gov't can use garnishment of wages under a criminal case during a term of SR. garnishment is separate from SR, and is authorized under the MVRA statute.

Summerlin v. Schriro, No. 98-99002 (10-17-05)(en banc). The 9th finds the petition gets a resentencing hearing because of IAC at sentencing. Sentencing counsel failed to adequately investigate mitigation, especially mental condition, and to formulate a sentencing mitigation plan. The 9th finds that the state's allegation that the petitioner asked not to present mitigation was not supported on the record, and undercut by the lack of a comprehensive and adequate mitigation investigation.

Congrats to AFPDs Ken Murray and Letty Marquez of Arizona.

Carty v. Nelson, No. 03-56766 (10-17-05). This petition contesting a civil commitment as a Sexually Violent Predator under California commitment procedures raises two interesting points: mootness and confrontation. The petitioner, while this petition was pending, was found by a jury not to be a SVP when the state was seeking to keep him in for a third 2 year term. The 9th finds that this does not moot the petition, because the petitioner still suffers from restraints on his liberty and must abide by certain registration conditions that could lead to a violation. In terms of confrontation, and Crawford, the 9th holds that Crawford is a trial right, and that this is a civil commitment, although recognizes the loss of liberty. The 9th does not extend Crawford given the civil nature.

US v. Allen, No. 04-50205 (10-18-05). Defendant played a role in an armed bank robbery that saw him convicted of various counts (conspiracy, robbery and 924(c)), and get a 319 mos. sentence. Defendant argues that the evidence doesn't support a foreseeable use of a firearm and that he should have received a Rule 29 acquittal. The 9th disagrees, pointing to various meetings and discussions with co-conspirators where the plan was hatched. The 9th also found that there were no Crawford violations because, aside from not raising such an objection (hence plain error review), conversations of co-conspirators were no testimonial. A statement of one conspirator to another to "bring the crew in" was not Crawford-ized. A statement to an officer however was, but there was no objections, and the co-conspirator (turned CI) was available to testify. The 9th did remand for resentencing under Ameline and because the original sentencing judge is no longer available, the remand is for a full resentencing.

Plumlee v. Papa, No. 04-15101 (10-18-05). Would one find it suspicious if: (1) the deputy in the public defender's office had a relationship with a codefendant in a murder case and was heard talking about the case; (2) if the appointed public defender on the case accepted a position in the district attorney's office and lied to the defendant about it; and (3) if the defendant insisted there were orders and bail conditions but the public defender denied it, and suggested he was mentally ill, only to have the district attorney produce them. Hmmmm. This doesn't sound like a good atty-client relationship. When the defendant asked for new counsel, the state court denied the motion. Thirteen years later, the 9th (B. Fletcher) grants relief, finding that the atty-client relationship was objectively strained and violative of the sixth amendment. In dissent, Bea argues that the 9th ignores AEDPA's rulings, credits the personal pique of a petitioner, and basically makes life harder for poor public defenders. (Ed note: interesting that the plight of public defenders is usually taken up by dissenters from majority opinions GRANTING relief). Bea writes quite spiritedly. For example, instead of just ending the dissent with the usual "respectfully dissenting", he writes ""I cannot agree with such an unsupported decision. Accordingly, with respect to my colleagues, but with the utmost regret for their misguided opinion, I dissent."

Congrats to AFPD Jason Carr of the D. Nev.

Merced v. McGrath, No. 04-15560 (10-18-05). This is an interesting opinion that wrestles with a juror's belief in jury nullification. On appeal from a denial of a petition, the 9th affirms the district court. The state courts were correct in holding that a court acted within its discretion in dismissing a juror who expressed a belief in the right to nullify a verdict because he possessed views that might impair or impede his service on a jury. The 9th recognized the power of a jury to nullify (citing many very old cases, back to Bushell's case) but the jury didn't have a right to. In this matter, the juror, when asked if he could follow the law, restated that he believed in nullification and that it was reasonable that he would not follow the law. The 9th discusses the power of personal qualms and belief in the context of Witherspoon and Witt (death penalty/juror cases) and concluded that personal beliefs have to give sway to the law's dictates.

US v. Resendiz-Ponce, No. 04-10302 (10-11-05). The 9th holds that "failure to allege any specific overt act that is a substantial step toward entry is a fatal defect in an indictment for attempted entry following deportation under 8 USC 1326." (emphasis added). This case dealt with a charge of attempted reentry in which the gov't only alleged "attempted reentry" as the act. Under 9th Cir. precedent, an attempt must have a specific overt act. The 9th didn't buy the gov't argument that the act of attempted reentry was in fact the overt act. The 9th found that more was needed. Because the indictment was insufficient, the conviction was vacated and remanded. In a concurrence, Reavley groused that he was concurring only because of 9th precedent that attempts require an overt act, and attempted reentry was an attempt. His view is that the indictment informed the defendant of the act, and the test should be not the best framed indictment but one that passed constitutional muster .

Congrats to CJA panel layer Atmore Baggot for the win. The reversed judge was EHC.

As a result of the win, the new indictments in attempt cases in the D. Ariz. read as follows:
On or about August 14, 2005, XXX, an alien knowingly and intentionally attempted to enter and did commit overt acts that were a substantial step toward entering the United States of America at or near San Luis in the District of Arizona, to wit: 1) he climbed over the boundary fence and avoided inspection by an immigration officer; and 2) he concealed himself in desert brush so as to evade detection by immigration officers, after having been previously denied admission, excluded, deported, and removed from the United States at or near Hidalgo, Texas, on or about September 16, 2000, and not having obtained the express consent of the Secretary of the Department of Homeland Security to reapply for admission.

US v. Bergeson, No. 04-35312 (10-13-05). . Defendant had a trial date on drug charges set for 9/21. Defense counsel moved for a continuance, which was granted and the trial reset for 10/21/03. Defendant was not in the court for the continuance hearing and failed to appear for trial on that date. The gov't then subpoenaed defense counsel (an AFPD) for the grand jury to tetsify for a charge of bail-jumping regarding whether she had informed defendant of the date.. The district court quashed the subpoena under Rule 17 as "unreasonable or oppressive." Counsel argued that the atty-client relationship and privilege would be breached if forced to testify. The district court held that the gov't had enough other evidence (a letter to defendant and testimony of mother). An interesting issue was whether this is reviewed de novo or for discretion. the gov't argued for de novo, but the 9th found, with the weighing of factors, that discretion was a better standard. The factors considered were proper, which included the atty-client relationship, the quantity and quality of the other evidence, and DOJ's own directives all weigh in favor of quashing. The 9th scoffed at the gov't's argument that there was a distinction between appointed counsel ("not of defendant's choice"!) and retained. The 9th stressed that not every subpoena for counsel would be quashed, but indicated that the test was high and that the gov't better not count on it.

Usually a defense lawyer doesn't want her name in a caption: that usually means bad things. In this case, though, AFPD Bergeson can view the caption as a vindication for the atty-client privilege. Congrats to her for the win.

Moorman v. Schriro, No. 00-99015 (10-13-05). In this capital habeas, the 9th remands for an evidentiary hearing to determine if appellant/PCR counsel was ineffective for failing to raise IAC claims. The facts of this case are lurid, involving the dismemberment of petitioner's mother (while he was on weekend furlough from a life sentence) and a defense that she was forcing him into incest (she was in her mid-70's). There was much disputed mental health evidence involving organic brain damage, pedophilia, anti-social personality, delusions, and competence. The 9th quickly disposed of the aggravating/mitigating claims, finding that there was legal grounds for the aggravators. The case revolved around whether appellant counsel was ineffective for failing to raise IAC claims, and the 9th found indeed that there were grounds that could be ineffective for failure to rise, notably in regards to evidence that his statements were involuntary because of mental illness, mitigation evidence regarding his childhood, a Ring (jury sentencing issue), and issues related to the state statutes. The district court is to see if there was "cause" for this ineffectiveness, and if such prejudice exists, to act on the merits.

Case o' The Week: Good or bad CARMA for the Ninth? New Circuit Split Bill S. 1845

Ed. Note: These have been slow weeks for new opinions, and the two big criminal cases of last week have been well-analyzed by Circuit blog commentators Jon Sands and Steve Sady below. This week’s memo therefore looks at a recent Senate bill on a long-standing debate: the Ninth Circuit split.

Players: Republicans, Judges Kleinfeld, O'Scannlain and Tallman in favor of the split, Chief Judge Shroeder, the Judicial Conference, and Democrats opposed.

Facts: On October 13, Alaskan Senator Lisa Murkowski and Nevada Senator John Ensign co-sponsored a bill that would split the Ninth Circuit. Court of Appeals Restructuring and Modernization Act, (“CARMA”), S. 1845, available here. The split would leave California, Hawaii, and the Pacific Islands in the Ninth, and create a new Twelfth Circuit with Alaska, Washington, Oregon, Idaho, Montana, and Arizona. It would increase the number of judges authorized for the new Twelfth Circuit, and add new cities to the rotation of the Court. Senate Bill 1845 is the latest in a string of proposed reorganization acts, and combines aspects of Murkowski’s and Ensign’s previous proposals.

Proponents Say: The Ninth is too large – bigger than the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 11th Circuits combined. It encompasses nearly 40% of the United States land area, and makes it impossible for its judges to frequently meet and discuss matters, reducing collegiality. It also is very difficult for Circuit judges to travel for a distant oral argument. The Circuit’s enormous size produces inefficiencies and makes it slow: a disposition in the Ninth takes an average of five months longer than the national average. Its crushing workload makes it impossible for any one judge to keep up with all of the opinions issued in the Circuit. Moreover, because all of its judges do not sit en banc, a very small minority – six judges – can dictate the law for all twenty-four active judges. This is particularly unfair when the population of the Ninth is predicted to exceed 63 million by 2010.

Opponents Say: The official position is that the Ninth is working well, and any problems can be corrected without the drastic remedy of a split. For example, on January 1, 2006 the Ninth will increase its en banc Court from eleven to fifteen judges. There are economies of scale that would be lost with a Circuit split: court staff would have to be doubled to handle the new Twelfth Circuit. Finally, a split would foster intra-circuit division on issues that have broader importance to all Western citizens, such as water rights. Unofficially, many view the Circuit split as a political move to limit the power of “liberal” California judges. Most agree that the new Twelfth Circuit (and all other previous proposed spin-offs) would be much more conservative than the current combined Ninth. Critics particularly worry about the environmental impact, with more conservative judges undermining environmental protections in the Pacific Northwest.

Impact on Federal Criminal Defense: The common wisdom is that this split would benefit federal defendants in California and the Pacific and be bad news for those in the Pacific Northwest, Arizona and Nevada. That may paint with too broad a brush, though. For example, Judge Betty Fletcher sits in Seattle, in what would be the new Twelfth Circuit. Although she is now senior status, she’s a good example of great judges who sit outside of California. And any experienced practitioner can rattle off many California Ninth judges who are certainly no friends of the defense bar. Note that Federal Defenders cannot lobby for or against the split, although state and federal bars, and the Federalist Society, have certainly weighed in on the issue.

For Further Reading: There’s been much said about the pros and cons of the Circuit split. A good starting place is the Federal Bar web page, which has links to various testimony and editorials on both sides of the issue. See web page here. The Ninth itself has prepared a bibliography of the issue, with many links. See Ninth bibliography here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org.

Bergeson: Ninth Circuit protects continuity of counsel for the indigent accused

The Ninth Circuit handed down a decision recognizing the importance of continuity in attorney-client relationships and rejecting the government’s argument that such relationships are diminished if the client is indigent and the counsel is appointed. Oregon Assistant Federal Public Defender Nancy Bergeson represented Michael Casey on a federal ecstacy charge. When the client missed a court date, the prosecutor subpoenaed her to testify at the grand jury regarding the client’s knowledge of the trial date. Nancy refused, citing the inevitable severance of the attorney-client relationship that would ensue. Chief Judge Ancer L. Haggerty quashed the subpoena as "unreasonable and oppressive" under Rule 17(c)(2) because required testimony would force the lawyer off the case and other evidence was readily available to the grand jury. After moving for reconsideration, the government appealed.

In an opinion available here, Judge Kleinfeld, joined by Judges Ferguson and Trott, demonstrated an appreciation for the realities of criminal defense, stating "issuing a subpoena to a lawyer to testify against a client is an unusual step that always raises serious concerns, even absent any privilege." Among other factors to be considered are "whether compliance would likely destroy the attorney-client relationship, and whether the information sought from the lawyer is already available from other sources." Judge Kleinfeld emphasized the case-by-case inquiry required and that no "mechanical rule" applied. In this case, the government had enough evidence independent of counsel's testimony to obtain an indictment.

Two parts of the opinion focus on points critical to those who labor in the defense of the indigent accused. First, the government argued that, because a federal defender was involved, the motion to quash had less force: the client is not entitled to counsel of choice and substitute counsel could be appointed. Judge Kleinfeld bluntly rejected this argument as having "no force": "Though an indigent is not entitled to counsel of his choice, the government is not entitled to force an indigent’s assigned lawyer out of the case."

Second, the government argued that severance of the attorney-client relationship would not necessarily result from compliance with the subpoena. The court found a likelihood sufficed, and "the greater the likelihood, the greater the potential for oppressiveness." And here’s the key point: "A client’s confidence in his lawyer, and continuity of the attorney-client relationship, are critical to our system of justice." Not only is this our daily experience, Judge Kleinfeld also recognized the potential for abuse: "Issuing subpoenas to lawyers to compel them to testify against their clients invites all sorts of abuse."

The court made clear that circumstances may exist to justify subpoenaing a lawyer to testify against a client. But given the threat to the attorney-client relationship and the alternative forms of proof, "the district court’s exercise of its discretion to quash the subpoena was eminently reasonable."

Nancy’s lawyer, Oregon Federal Public Defender Steve Wax and CJA Panel Attorney Marc Blackman for Mr. Casey did a great job protecting the interests of the indigent accused and their attorneys. But they have one more mission: check out the case’s caption. Nancy is listed as a defendant in a criminal case, even though she was never charged with anything. As a firm believer in the presumption of innocence, she senses no stigma, but the record should accurately reflect that her only involvement was as the resolute attorney for her client and the successful litigant of a motion to quash a subpoena, finding herself – as Judge Kleinfeld said – "in the odd position of appellee in this case."

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

Case o' The Week: "Collective Knowledge" Dooms Appeal in Life Case, U.S. v. Jensen

Cayenne peppers (left) are reported to mask the scent of drugs, and throw-off narcotic dogs. They don’t. At least, they didn’t well enough to deter a narcotics dog in United States v. Douglas Jensen, __ F.3d __, Slip. Op. 13841 (Oct. 6, 2005), available here. In Jensen, Judge Bea writes for the Ninth and reaffirms the dangerous “collective knowledge” Fourth Amendment theory.

Players: Prolific Judge Bea writes again, O’Scannlain and McKeown join.

Facts: A citizen tipster saw a black station wagon going over 75 m.p.h. in a 25 zone in Flathead County, Montana. Slip. Op. at 13845. The Sheriff issued a “attempt to locate” dispatch for the driver. Whitefish police department Sgt. Cook heard the dispatch and recognized the car as belonging to Douglas Jensen. When Cook had previously served on the Northwest Drug Task Force, he learned Jensen smuggled drugs in that car. Id. at 13846. Sgt. Cook stopped Jensen, other officers joined him and cited Jensen for reckless driving. Id. at 13847. Cook called a Task Force detective, who said “I didn’t know Jensen was back from Mexico.” Id. Sgt. Cook then asked a senior officer at the Kalispell Police Department if Jensen should be cited or arrested for reckless driving, and was given the green light to arrest. Id. The car was impounded, a dog alerted on a narcotics sniff, the officer got a warrant and pure and powder meth was recovered from Tupperware hidden inside the frame of the car. Id. at 13847-49. After a bench trial, Jensen was sentenced to life in prison because of his priors. Id.

Issue(s): 1. Was there sufficient probable cause to arrest Jensen for drugs? 2. Was it lawful to impound the vehicle after the initial stop? 3. Does the mandatory life sentence violate separation-of-powers and non-delegation doctrines, or the defendant’s due process rights? (Also, of less interest, an Eighth Amendment challenge).

Held: 1. Probable Cause: “We conclude that [Sgt.] Cook had probable cause to arrest Jensen on suspicion of illegal drug activity . . . . Sergeant Cook’s testimony that he had received intelligence regarding Jensen was sufficient for the purpose of establishing probable cause under the so-called ‘collective knowledge doctrine.’” Id. at 13852.

2. Car impoundment: “Based on the evidence supporting Jensen’s arrest, as well as the results of the canine sniff test, impoundment of Jensen’s vehicle was proper under the Fourth Amendment, because Cook had probable cause the believe the vehicle contained illegal drugs.” Id. at 13585-86.

3. Sentencing: “While this court has not directly addressed the question whether the sentencing scheme at issue here violates the non-delegation doctrine, two circuits have concluded that the sentencing scheme does not impermissibly delegate legislative authority to the executive. . . . We find this reasoning persuasive and similarly reject Jensen’s separation of powers claim. . . . [Life sentences under Section 841(b)(1)(A) are] individualized according to quantity and varied of narcotic possession and according to the number of felony drug convictions, and thereby comport with due process.” Id. at 13857-58.

Of Note: The Fourth Amendment holdings of Jensen aren’t new, but they’re bad. One wonders why the Court is fooling with PC to arrest the defendant at all – is “reckless driving” an arrestible offense in Montana? If so, why is PC even relevant after the Supreme Court's decision Atwater? In any event, this “collective knowledge” approach is a sloppy area of Fourth Amendment law, providing the opportunity for much police mischief. The case also raises the question of whether Judge Bea is a punster. The opinion begins, “It was an excess of speed that initially brought him to the attention of the authorities . . . .” Id. at 13844. Is “speed” referring to m.p.h., or meth? Probably the former, but the latter is true, too.

How to Use: In a mandatory life case, one has to preserve every argument for later appeal or habeas. The non-delegation challenge to the mandatory life provisions of Section 851 has now been rejected by three Circuits. Id. at 13858. It has not, however, been considered by the Supreme Court. Until that nail is driven into the argument’s coffin, worth bringing these constitutional challenges – particularly in very heavy mandatory minimum cases.

For Further Reading: The defendant in this case used cayenne peppers to mask the smell of meth from the narcotic dogs. A police protocol sheet – on a pot web page – provides an interesting litany of other materials used to mask drug scent (including dog food). See article here (“Masking Odors.”)

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

US v. Brown, No. 03-10479 (10-4-05). We all see the pleas where the gov't promises to dismiss charges. Here, the defendant plead guilty to 44 counts and the gov't promised to dismiss the others (how many do they charge in the E.D. Ca.?) The gov't did in fact dismiss, but without explicitly stating it was with prejudice. The defendant seized on this as a breach of the plea, and thus voided the appeal waiver. The defendant appealed on Booker grounds and that the court abused its discretion in not continuing the sentencing. The 9th considered whether a dismissal with an explicit "with prejudice" was a material breach. The court noted that a dismissal without more was usually considered without prejudice, but the courts can give force to the intent of the parties, and the 9th found it clear that in these situations, the dismissal would be with prejudice. The gov't would be barred from bringing the counts back. Thus, since the dismissal was read "with prejudice," the plea was not breached, and the waiver was enforced, and the appeal dismissed.

Bonner v. Carey, No. 02-56022 (10-6-05). This is another "out of time, out of luck" habeas appeals. The petitioner filed several state petitions in the early 90's. He filed another in 1995 that was never acted on, but he did file a motion for rehearing that drew a response. The state trial court denied the petition on several grounds, the most relevant being that he could have raised the allegations in an earlier petition (IAC). The case then wended its way upwards. The 9th here holds that this pronouncement in a state court minute entry means that petitioner's petition was never properly filed in state court, and so time was not tolled under AEDPA, and he was out of luck. The 9th recognized the harshness of its ruling, but the Supremes in Pace v. DiGuglielmo, 125 S.Ct. 1807 (2005) control. Pace moreover overturns two possible 9th Cir. exceptions to the tolling, namely that "lack of diligence" in a pre-AEDPA delay was irrelevant to a post_AEDPA decision. Pace holds that "time limits," no matter their form, are filing conditions for AEDPA purposes. Under Pace, if the petition was untimely under California law, it was never properly filed. Likewise, if a pending case is deemed to be untimely by a state court, under Pace, the time that the state court was considering is not tolled. This case is remanded though for any possible claim of equitable tolling.

US v. Jensen, No. 04-30094 (10-6-05). The 9th affirms a conviction and sentence. The defendant was stopped for careless driving (75 mph in a 25 mph area) and was subsequently arrested. The arresting officer had inquired of a narc detective whether he wanted the defendant for anything. As it turned out, the narc detective had information from a CI that the defendant was carrying narcotics in the type of car, at the time, the CI said he was travelling. A narcotics dog also alerted. The 9th found that there was cause to stop him, and that the arrest was good, and that the probable cause to search the car was justified. The knowledge of the officers doesn't have to be personal, but can be collective, and the officer who stopped the defendant could rely upon the information of the narc detective in deciding to arrest him. The complexities of modern police investigations must rely upon the collective knowledge doctrine. Where officers are cooperating in an investigation, the knowledge of one is presumed to be shared by all. There was probable cause to ask for a search warrant for the car (where lots of pure meth was found). The defendant also had two prior drug felonies and was sentenced to life under 851. the 9th affirmed the sentence against due process and separation of powers challenges. The 9th relied upon its precedents in these decisions, and that the recent cases of Booker and Blakely didn't change this.

Case o' the Week: Ninth Applies Booker to Upward Priors Departure in Kortgaard

All sorts of things grow in Hawaii's beautiful Volcanos National Park (left), including marijuana. Defendant Kortgaard saw his sentence almost double after he was convicted for growing pot in this national park, based on an upward departure for his priors. Writing for the Ninth, Judge Brunetti reverses in United States v. Kortgaard, __ F.3d __, Slip. Op. 13573, (9th Cir. Sept. 21, 2005), available here. In a thoughtful opinion, Judge Brunetti refuses to allow the Almendarez-Torres exception for priors to swallow the guideline provision for upward depatures, and applies Apprendi/Booker to the departure. A case with much broader ramifications beyond its guideline narrow issues.

Players: Win for David Klein of Hawai’i, techie guru and long-term CJA heavy-hitter.

Facts: Kortgaard was convicted of a marijuana offense, and the federal district court doubled his exposure by departing upwards based on the understatement of prior convictions – then sentenced him to the high end of the adjusted range. Id. at 13577. During the appeal, Blakely and Booker were decided. On appeal, the government argued that the upward departure based on the understatement of prior convictions related to priors, and therefore fell within the Almendarez-Torres exception to Apprendi. See id. at 13583.

Issue(s): “Whether, or how, Blakely affects upward departures [for understatement of criminal history] under [USSG] § 4A1.3.” Id. at 13578.

Held: “We now confront that issue in light of Booker and hold that upward departure decisions under § 4A1.3 are factual in nature; therefore, such decisions are not within Apprendi’s exception for the fact of a prior conviction and are subject to the restrictions of Booker.” Id. “The mere fact that the sentencing judge considered prior convictions in departing upward does not bring this case within the exception for the ‘fact of a prior conviction’ that the Court carved out in Apprendi . . . .” Id. at 13581. “We also find that the ultimate § 4A1.3 determinations of the ‘seriousness’ of a defendant’s prior misconduct and a defendant’s ‘likelihood’ of recidivism are factual matters.” Id. at 13583.

Of Note: In some interesting language, author Judge Brunetti emphasizes the narrow scope of the Almendarez-Torres exception. “[T]he prior conviction exception should remain a narrow exception to Apprendi.” Id. at 13587 (quotations and citation omitted). The Ninth noticed the Supreme Court’s ambivalence to this exception: “the Court also questioned the continuing validity of Almendarez-Torres regarding the consideration of recidivism in sentencing, [and] construed it as representing at best an exceptional departure from the historic practice that we have described . . . .” Id. (quotations and citation omitted). The Ninth emphasized, “We are faced here with another request to extend or broadly construe Apprendi’s exception in order to include within it issues that have not been submitted to a jury. We once again decline to do so and continue to treat the exception as a narrow exception to the general rule.” Id. (quotations and citation omitted). The Ninth – like the Supreme Court – is signaling continued discomfort with the Almendarez-Torres rule: enough discomfort that it would be prudent to continue to preserve the Apprendi objection.

How to Use: The core holding of Kortgaard doesn’t get the defense far in most cases: a district court now can upward depart under advisory guidelines, and the test will simply be “reasonableness.” (Kortgaard’s case was remanded for resentencing – it will be interesting to see what he receives the second time around). The Court’s narrow reading of the Almendarez-Torres exception, however, provides useful language that can be used in other Apprendi/prior contexts. As noted above, in contested cases it makes sense to preserve the Apprendi exception to the use of unproved priors . . . no one knows how C.J. Roberts and the second new Justice will view Almendarez-Torres. (Although there are some grim guesses about several of the names being batted around).

For Further Reading: The Kortgaard case – and its broad discussion of Almendarez-Torres – also caught the eye of Professor Berman. A thoughtful discussion of the broader ramifications of the decision can be found here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org