Sunday, November 27, 2005

Case o' The Week: Ninth Plugs Safety Valve, Labrada-Bustamante

Thanksgiving week made for a slow criminal docket in the 9th. We’re therefore hopping back a week to look at Labrada-Bustamante in more detail. United States v. Labrada-Bustamante, __ F.3d __, Slip. Op. 15259 (Nov. 10, 2005), available here. In Labrada-Bustamante, Judge Rawlinson (left), rejects a barrage of attacks on Safety Valve – but some windows of opportunity remain . . . .

Players: Judge Johnnie Rawlinson writes for the Ninth Circuit, Judges Gould and Tallman join.

Facts: Defendants were convicted of a meth conspiracy; one of the two co-defendants had a prior. Id. at 15264. The district court made findings regarding safety valve eligibility. Id. at 15275. The court also allowed a collateral attack to a prior conviction – by knocking out those criminal history points, the court got to Safety Valve eligibility. Id. at 15279. {“Safety Valve” permits a defendant in Criminal History category I to get out from under a mandatory minimum sentence.}

Issue(s): 1. Safety Valve Unconstitutional? The defense claims “that the five factors enumerated in section 3553(f) [Safety Valve] are unconstitutional under Blakely because each requires a finding of fact by a judge rather than a jury.” Id. at 15275. 2. Collateral Attack on Criminal History Point Sentence: Did the district court err in permitting a collateral attack to a prior conviction for the purpose of calculating criminal history points? Id. at 15277.

Held: 1. Safety Valve Doesn’t Require Jury Findings: Before Safety Valve becomes an option, a jury must make findings triggering a mandatory minimum sentences. Id. at 15275. For example, a jury would have to make a finding of the triggering amount of drugs. Id. “Because mandatory minimum sentences under section 841(b) presuppose a jury’s determination of the underlying fats, their imposition does not offend either Apprendi or Blakely.” . . . Duarte would have us hold that facts allowing a decreased sentence below that mandatory minimum must be found by a jury beyond a reasonable doubt as well. Neither Apprendi nor Blakely compel such a holding.” Id. at 15276. 2. No Collateral Attack on Convictions in USSG Criminal History: “[A] defendant cannot collaterally challenge a prior conviction used to calculate criminal history points.” Id. at 15278 (internal citations and quotation omitted).

Of Note: Labrada-Bustamante involves issues only a real sentencing wonk could love, and the analysis in the decision is not particularly comprehensive. At a deeper level, however, the opinion involves some pretty profound questions. The (just) district court in Labrada allowed a collateral attack to a prior – this allowed him to knock the one conviction that precluded Safety Valve. Id. at 15277. What prevented the judge from doing this? The Safety Valve statute only permits relief if the defendant has one criminal history point. Id. at 15277 n.8. It is the guidelines, however, that dictate how criminal history points are calculated. Post-Blakely, the guidelines are advisory. If the guidelines are advisory, what is to prevent a district court in determining how it will calculate Criminal History? After Blakely, can’t a district court determine whether it will allow collateral attacks on prior convictions in determining Safety Valve eligibility? In other words, are the guidelines “advisory” as to both the final numbers spewed out of the calculations (the “product”), and as to how the court gets to those numbers (the “process”)? Labrada-Bustamante (thankfully, given the panel) doesn’t shed much light on this critical question.

How to Use: The Blakely “process” issue was not addressed in this case, because the defense conceded error. Id. at 15278. This Apprendi issue is still alive, and is worth arguing before a sympathetic district court reluctant to impose a draconian mandatory minimum sentence.

For Further Reading: Judge Rawlinson was the first African American woman appointed to the Ninth Circuit. See Ninth Circuit page here. Replacing Brunetti, Judge Rawlinson was appointed by Clinton and took the appellate bench in 2000. She rose to the Ninth from the district court, where she had served since 1998. Judge Rawlinson was a district attorney in Nevada for eighteen years. Id. Although a Clinton appointee, Rawlinson is most-frequently aligned with her conservative colleagues on criminal justice issues. See, e.g., Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003) (Rawlinson, O’Scannlain and Tallman, dissenting from Apprendi habeas relief), rev’d 542 U.S. 348 (2004).

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

Wednesday, November 23, 2005

US v. Schneider

No. 03-30527 (11-18-05). On the surface, this looks like a standard Ameline remand. The defendant got a 10 month sentence for theft of gov't funds, with an adjustment for the amount. Thus, it goes back for a resentencing. What is unusual about it is detailed in the concurrence of Judge Ferguson, who takes the district court to task for misapplying the guidelines in failing to depart and for failing to give acceptance. the defendant, a former Marine, suffered from a long-term mental illness of bipolar mania and schizophrenia. He had been hospitalized several times and has been on disability. he was hired by the SSA as a teleservices rep (!), the same agency that provided him with SSA. He failed to report that he earned to much for SSA, hence the prosecution. At a resentencing, the court denied a diminished capacity departure. Ferguson said the court only considered the cognitive prong of 5K2.13 and not the volitional prong. "Some" degree of diminishment was required, not a particular degree. Ferguson also said that the court inappropriately used the defendant's demeanor in assessing acceptance, and conflated the requirements for the adjustment. Ferguson was clearly unhappy with the district court .

Congrats to AFPD Steve Sady, D. Ore., for the win.

Sunday, November 20, 2005

Case o' The Week: L.A. Gunns for Shackle Policy, United States v. Howard

CD Cal AFPD Carl Gunn (left) wins a long, hard-fought victory in United States v. Howard, __ F.3d. __, No. 03-50524, Slip Op. 15309 (9th Cir. Nov. 15, 2005), available here. In Howard, the Ninth holds it is a due process violation to have a blanket policy of shackling all pretrial detainees, without any showing of necessity.

Players: Central District of California vet AFPD Carl Gunn (left).

Facts: After consultation with magistrate judges, the Marshals in the massive Central District of California (L.A.) shackled every defendant at their initial appearance. Slip op. at 15317-18. There was “little in the record” describing the need for the policy. Id. at 15319. In each of these 17 consolidated cases, the Fed P.D. objected to the shackling; in each, the motion to unshackle was denied without an evidentiary hearing. Id. at 15320. The Defender brought interlocutory appeal from the magistrate’s orders.

Issue(s): 1. Moot? Did the Court of Appeals have jurisdiction over interlocutory appeals that were moot because the defendants had long ago resolved their cases? 2. Due Process: Does the blanket shackling policy violate due process?

Held: 1. Not Moot: This case is capable of repetition, yet evading review - and cannot be addressed in a civil action, because it is brought by the Defender. “Therefore, defendants’ claims are effectively unreviewable on appeal from a final judgment. The district court’s order reviewing the magistrate judges’ determinations is an appealable collateral order.” Id. at 15325. 2. Due Process/Shackling: “On the merits, because it is undisputed that the policy effectuates a diminution of the liberty of pretrial detainees and distracts from the dignity and the decorum of a critical stage of a criminal prosecution, we conclude that the shackling policy requires adequate justification of its necessity. On the basis of the limited record before us, we conclude we must vacate the district court’s order upholding the policy, but we do not preclude the reinstatement of a similar policy upon a reasoned determination that it is justified on the basis of past experiences or present circumstances in the Central District.” Id. at 15318.

Of Note: The Ninth – lead by Judge Schroeder – is careful to not hold that the blanket shackling policy is a violation of due process. “Defendants contend that due process requires that there be no restraining whatsoever without an individualized determination. We observe, without deciding the issue, that this may go farther than due process requires. But we do not have to reach this question. The record here gives no justification or describes any circumstances existing district-wide that would support the district requiring such restraint.” Id. at 15326. Instead, Judge Schroeder describes a narrow due process ruling: “At a minimum, due process requires that before there is any district-wide policy affecting all incarcerated defendants whom the government must transport to a first appearance, there must be some justification.” Id.

How to Use: Steve Sady reads Howard in the context of the Supreme Court’s recent decision in Deck v. Missouri, 125 S.Ct. 2007 (2005). In Deck, Justice Breyer explained that visible shackles during the penalty phase of a capital case are a constitutional violation for which the defendant need not show prejudice. Thus, Howard tucks neatly behind Deck’s wake: shackling is a problem, Deck emphasized that, and Howard follows with a limited holding. Consider using Deck and Howard to challenge shackling during federal sentencing proceedings: the Deck rationale does not rely heavily on the fact that capital penalty proceedings are before a jury.

For Further Reading: Though his name is not in the opinion, this victory is the fruits of AFPD Carl Gunn’s efforts. Carl has been a public defender for twenty-two years; nineteen in L.A. with brief interludes in Alaska and Washington. When he last returned to work in LA, he was “pissed” to find this new shackling policy and immediately mounted a coordinated attack. This is just one of Carl’s many righteous fights: run “Carlton F. Gunn” in Westlaw and you’ll find United States v. Alvarez-Sanchez, 511 U.S. 350 (1994) (regarding admissibility of confession while in state custody, before federal proceedings); United States v. Rojas-Flores, 384 F.3d 775 (2004) (acceptance of responsibility still possible after purely legal challenge); United States v. Wenner, 351 F.3d 969 (2003) (Washington burg offenses not “crimes of violence.”).

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

Tuesday, November 15, 2005

US v. Howard et al, No. 03-50524 (11-15-05). In a special action, the FPDs of the Central District of Ca. challenge the policy of the US Marshal Service that mandates the leg shackling of pretrial detainees making their initial appearance. The 9th (Schroeder) recognizes that this is a valid special action (mandamus), and acknowledge that the shackling diminishes the liberty of defendnats and distracts from the dignity and decorum of he court. Such a policy therefore must have adequate justification. The 9th concludes on the record before it that there is no such justification. The Marshal basically just did it for security reasons without justifying the need or problems or dangers. The 9th does state that the decision does nor preclude reinstatement of the policy upon a "reasoned determination that it is justified on teh basis of past experiences or present circumstances in the Central District." Wallace dissents, arguing that the security reasons are obvious, that protection is critical, and that the inconvenience and loss of liberty is overblown..
Congrats to FPD Maria Stratton and her office for raising and winning (in this round) this issue.
"The [defendant] have nothing to lose but their chains. They have a [case] to win. "
--The FPD Manifesto

US v. Norris, No. 03-10437 (11-10-05). The 9th reaffirms the corpus delicti rule that a confession alone cannot support a conviction. The defendant was charged with three counts of sexual abuse of his five-year old niece. There was a confession, found to be admissible (and affirmed). The test of whether a confession has been corroborated sufficiently was stated in Lopez-Alvarez, 970 F.2d 583 (9th Cir. 1992). The govt must introduce sufficient evidence to establish that criminal conduct at the core of the offense charged occurred; and it must introduce independent evidence tending to support the trustworthiness of the confession. Here, one act occurred around Thanksgiving; the other two were fuzzier (summer for one). The first count was supported by physical and testimonial evidence. The 9th found that there was some corroborating evidence of the third count, specifically testimony that a touching occurred "around then" even if it wasn't genitalia to genitalia. The second count though had no supporting evidence except for the defendant's confession and had to be reversed. The 9th also allowed in FRE 414(a) evidence of other child molestations without a corpus delicti test for them, stressing that the test is preponderance of the evidence
Congrats to AFPD David Shannon of D. Ariz. (Tucson).

US v. Labrada-Bustamante, No. 04-30082 (11-10-05). This was a large meth conspiracy. Defendants raised a multitude of issues attacking the evidence and raising constitutional error. All were denied. the more interesting ones were a Blakely challenge to the safety valve, arguing that the elements to satisfy the safety valve must be found by the jury. The 9th emphasized that mandatory minimums do not implicate Apprendi, and here mandatories were found by the jury., The mitigation can be judge determined. The 9th also held that the gov't's cross appeal of a defendant's collateral attack on a prior was proper. The defendant had a prior drug conviction. Section 851(e) allows collateral challenges, but the conviction must be less than five years old. This one wasn't. As such, the challenge was improper and the defendant faced a 20 year mandatory. The defendants also raised various sixth amendment (IAC) and eighth amendment (cruel and unusual) challenges to the sentences. The challenges were to no avail.

Sunday, November 13, 2005

Case o' The Week: Questionable search meets the Gould standard, US v. Ruiz

The uncle of a parolee who wasn’t in the trailer house had objectively reasonable apparent authority to consent to a search of a bag that wasn’t his – or so holds Judge Ronald Gould (left) in United States v. Abel Ike Ruiz, __ F.3d. __, No. 04-30516 (9th Cir. Nov. 7, 2005), available here. This disappointing Fourth Amendment decision illustrates how broad the exceptions to the warrant requirement have become.

Players: Fisher, Gould, and Bea; Gould authors.

Facts: A parole officer and Portland cops come to search a trailer home and find the parolees’ uncle (the parolee himself never appears in the case). Id. at 15192. An officer later testifies that he believed the uncle lived in the trailer. Id. at 15193. The uncle consents to let the officers enter the trailer and confirm that the parolee wasn’t there. Id. When they came in, they found defendant Ruiz (not the parolee) on a pull-out bed. Id. An officer saw a triangular, cloth case on a shelf a foot above the bed, which he recognized as a “gun case.” Id. The cop asked for and received permission to search the case from the uncle. Id. He found a .22. Id. A further search revealed a .38 and a speed loader. Id. In federal court Ruiz’s suppression motion is denied, and he is convicted of § 922(g)(1), felon in possession. Id.

Issue(s): “Assuming that [the uncle] did not have actual authority to consent to the search, we address whether he had apparent authority to do so.” Id. at 15195 (emphasis added).

Held: “We conclude that, based on the statement and surrounding circumstances, [the uncle] had apparent authority to consent to the search under the standards that we derive from Dearing.” Id. at 15197.

Of Note: In Ruiz, the Court applies a three-part test from United States v. Dearing, 9 F.3d 1428, 1429-30 (9th Cir. 1993): “First, did the search officer believe some untrue fact that was then used to assess the extent of the consent-giver’s use of and access to or control over the area searched? Second, was it under the circumstances objectively reasonable to believe that the fact was true? Finally, assuming the truth of the reasonably believed but untrue fact, would the consent-giver have had actual authority?” Id. at 15195. The big question of Ruiz was whether it was objectively reasonable for the officer to believe the uncle had authority over the gun case – even though the uncle said that he didn’t know what was in the case, and never claimed that it was his. Note how far from constitutional bedrock this case strays: it is OK for a third party, who doesn’t really have authority, to consent to a search of property that isn’t his, as long as the third party reasonably appears to have apparent authority.

How to Use: The slim silver lining in Ruiz is that the Ninth affirms the principle that third party consent doesn’t extend to all containers in a residence. Id. at 15198. For example, a boyfriend can’t consent to a search of a woman’s purse in a jointly-shared car. Id. The defense strategy should thus be to develop the factual record distancing the third party’s actual authority over the container. (For example, did the uncle ever say that it wasn’t his bag? Never saw the bag? Didn’t know who owned the bag? Any of those facts would have helped).

For Further Reading: Judge Ronald Gould was nominated by Clinton. A former Sixth Circuit and Supreme Court clerk, Judge Gould was a Perkins Coie attorney and law professor. See profile here . During the confirmation proceedings, Republican Senator Sessions endorsed Judge Gould, noting that he was an Eagle Scout and acknowledging his triumph over his disability (the judge has M.S. and attends oral argument in a wheelchair). Senator Sessions did, however, express concerns about the continued “activism” of the Ninth Circuit and hoped that Gould would not continue that trend. See statement here. At least in the field of criminal law, Senator Sessions can rest assured: Judge Gould has fallen squarely within the national norm. See, e.g., United States v. Weiland, 420 F.3d 1062 (9th 2005) (Gould, J., author) (permitting use of prior convictions despite Crawford objections to absence of cross-examination, Tashima, J., dissenting); United States v. Young, 420 F.3d 915 (9th Cir. 2005) (Gould, J., author) (upholding “constructive possession” conviction and rejecting defense challenge to over-broad warrant).

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

Thursday, November 10, 2005

Supreme Court might consider Booker's retroactivity

As being reported at SCOTUSblog, the Supreme Court has on its November 23 conference an issue of immense importance to many federal prisoners, whether Booker applies retroactively to cases on collateral review. The case is Clark v. U.S., No. 05-5491. It has attracted attention because the Court asked for a response from the Solicitor General and, according to SCOTUSblog, eleven other pending cases on the issue have been ready for Court action, but have not been acted upon, apparently awaiting the outcome of the Clark case. Every circuit to have considered the issue has held that Booker is not retroactive, so a cert. grant would be good news. The results of the conference will be issued on November 28.

Wednesday, November 09, 2005

US v. Delay, No. 04-50128 (11-7-05). This case turns on whether, for purposes of a crime of violence for career offender status, there is a distinction between an unregistered sawed-off shotgun (which is a crime of violence under Hayes, 7 F.3d 144 (9th Cir. 1993)) and a registered shotgun. The argument misfires though because the 9th unsurprisingly held that there was no distinction, as the fact that it was a sawed off shotgun made it dangerous. All is not lost, though, because the case is remanded under Amerline for resentencing.

US v. Ruiz, No. 04-30516 (11-7-05). This is a consent issue. The police came to a trailer park in search of a certain suspect. They knocked on the door, and a man answered, identified himself as an uncle of the suspect, who had been living in the trailer for a year with the suspect's mother. the suspect wasn't in, but he gave consent to the police to look around,. As it happens, there was the defendant (not the suspect) sleeping on a pull out bed. The police asked him some questions, learned he was a felon, and spied what appeared to be a gun case on the headboard. It was. and there was a firearm. the defendant argued that the uncle couldn't give consent. The 9th said he could: he apparently was living there, and had authority over the premises. Moreover, while there are some constraints on giving permission to search containers, this gun and gun case wasn't hid away.

US v. Velasquez-Reyes, No. 04-30292 (11-8-05). This is a challenge under 1326 to whether second degree arson under Washington State statutes constitutes a crime of violence. It does. The argument was that "knowing and malicious" -- which is the mens rea for the state statute -- is really the same as "willfully and maliciously" which is the federal definition of arson for special jurisdiction, and that the act requires a wilful purpose, which makes it a generic arson. The 9th also holds that the state statute is not overbroad in including personal property extending beyond buildings and dwellings. There is an interstate nexus.

Clemens v. US District Court for the C.D. Ca., No. 05-548 (11-7-05). The defendant allegedly threatened three members of the district court in the Central District of Calif. The court appointed a different FPD office to handle the defense (Fed Defenders of San Diego), who promptly moved to recuse the entire bench of the Central District. The case was referred to a judge from the D. Nev., who denied the motion. the 9th affirmed. The 9th noted this was appropriate for mandamus, and the affirmed. the 9th acknowledged that recusal is appropriate if a the individual judge is threatened, or if the threat was against the bench in general. Here, in a pro per suit, there were three specific judges named and supposedly threatened. Given the size of the Central District (34 judges) and the divisions (3), there were enough black robes to go around. The 9th has the hortatory language about presuming fairness and impartiality even though a brethren is threatened, and that the judges will continue to uphold the independence of the judiciary and not be biased etc.

Sunday, November 06, 2005

Case o' The Week: 1st Amendment Movers and Chakers

A great panel finds a California statute unconstitutional because is criminalizes false complaints – but not false praise – of cops. Chaker v. Crogan, __ F.3d. __, No. 03-56885 (9th Cir. Nov. 3, 2005), available here. Ironically, however, Chaker may undermine the defense use of these complaints for impeachment.

Players: Hug, Pregerson and Berzon – a great panel.

Facts: “California Penal Code section 148.6 makes it a misdemeanor to “file [ ] any allegation of misconduct against any peace officer . . . knowing the allegation to be false.” Slip Op. at 15107. A citizen made complaints against a cop and was later prosecuted and convicted for false accusations. Id. at 1500-01. He then went through a tortured set of habeas proceedings before finally arriving at the Ninth.

Issue(s): Does the statute violate the First Amendment because it only penalizes false criticisms, but not praise, of California Police Officers? Id. at 15111. Put differently, “we must determine whether California Penal Code section 148.6 violates the First Amendment’s core requirement of viewpoint neutrality even though the statute regulates otherwise unprotected speech.” 15115-6.

Held: Yes, unconstitutional. “The imbalance generated by section 148.6—i.e., only individuals critical of peace officers are subject to liability and not those who are supportive—therefore turns the First Amendment on its head.” Id. at 15118. “Because section 148.6 targets only knowingly false speech critical of peace officer conduct during the course of a complaint investigation, we conclude that the statute impermissibly regulates speech on the basis of a speaker’s viewpoint.” Id. at 15119.

Of Note: Ironically, this ACLU victory may complicate matters for criminal defense. Defense counsel regularly tout the fact that police complaints are filed under the threat of criminal prosecution to illustrate their reliability. (This argument is directed particularly to district courts that let in all 404(b) evidence against our clients, but severely limit the defense use of police complaints). If it is no longer illegal to file a false complaint, our “reliability” argument is undermined. Notably, the Ninth gives guidance on how to cure the statute: “We note that any impermissible viewpoint-based bias present in the complaint investigation process is easily cured: California can make all parties to an investigation of peace officer misconduct subject to sanction for knowingly making false statements. Otherwise, the selective sanction imposed by section 148.6 is impermissibly viewpoint-based.” Id. at 15120.

How to Use: The broader use of Chakar is to explain the legislative history and mechanics of the California citizen complaint process in our Rule 17(c) subpoenas and when advocating the use of citizen complaints for impeachment. Chakar is one of the few federal opinions to discuss this procedure in detail. This is odd, because federal AUSAs rely so heavily on cheap state cases to bolster their stats (e.g., “Trigger Lock” prosecutions). In all of these glorified “state” federal cases, citizen complaints against state cops is a key impeachment issue. We in the federal defense bar need to work more closely with our state counterparts to learn the details of our district’s local complaint process – often, these citizen complaints can make the defense case when the prosecution hinges on cop credibility.

For Further Reading: As the Chakar opinion explains, every California jurisdiction must have a procedure to intake and investigate citizen complaints against its officers. Id. at 15109-10. “Specifically, California Penal Code section 832.5 provides that “[e]ach department or agency in this state that employs peace officers shall establish a procedure to investigate complaints by members of the public . . . and shall make a written description of the procedure available to the public.” Id. at 15110. In San Francisco, this procedure is handled by the Office of Citizen Complaints. See link here. OCC employees are an invaluable resource for explaining the intricacies of the complaint process, and their insights can make for much more potent Rule 17(c) subpoena requests. Other agencies also maintain resources on police brutality and complaints. See, e.g., HRW Report here. Helping a client make a complaint against a dirty cop helps to document abuse and provides fodder for future impeachment - http://www.occ.complaint.

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

Thursday, November 03, 2005

Notash v. Gonzales, No. 03-72116 (11-2-05). In an immigration ruling, the 9th holds that a conviction of for attempted entry of goods by means of false statement under 18 USC 542 is not a crime of moral turpitude for purposes of the INA. Although the first paragraph of 542 requires false or fraudulent means, the second paragraph has no false or fraudulent requirement, only requiring a "wilful act or omission" that results in loss. That distinction is key here, where a categorical approach, even a modified one, does not reveal which section the petitioner was convicted under.

Daniels v. Woodford, No. 02-99002 (11-2-05). The 9th grants a new trial to petitioner, who was on death row for the 1984 slaying of two police officers. The 9th finds that his sixth amendment right to counsel was violated because of a series of court rulings, including that his first public defender was dealing with the county atty's office for a job (which he got) at the same time that he was discussing a deal with defendant; that a lawyer petitioner wanted not allowed to represent him; that conflicts were recognized by the court nine months after the case started, and the lawyer then appointed to represent petitioner was a career prosecutor who had just started a criminal defense practice, but had never done any criminal defense. Add to this a short period to get ready (3 mos), and the mental problems of defendant, including that he is a paraplegic and is paranoid, the 9th found that he was constructively deprived of counsel.

Wednesday, November 02, 2005

Supreme Court Review: lessons in post-Apprendi litigation

As the new Term begins, our office’s annual review of Supreme Court decisions from the criminal defense perspective is available here: Reviewing The Supreme Court 2004-05 Term From A Defense Perspective. Three major themes emerged from the opinions. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation. Lastly, the Court’s devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions.

The basic lesson on how best to litigate for our clients in the post-Apprendi, post-Blakely world is illustrated by a recent sentencing in Utah. Professor Paul Cassell, after his famous advocacy against Miranda came to an end in Dickerson, became Judge Cassell of the District of Utah. Very soon after taking the bench, he was confronted with the nightmare case of Weldon Angelos: a first-time offender who carried a gun to several sales of marijuana. Back in 1993, Justice Scalia, in a classic exercise of his textualism, read 18 U.S.C. § 924(c) to require consecutive mandatory minimum sentences for use of a firearm in six bank robberies charged in a single indictment (Deal). Judge Cassell, faced with the inexorable math of five years followed by two successive 25 year consecutive sentences, and a prosecutor who refused to make reasonable charging decisions, put out a call for any theories that could help him avoid imposing an outrageous sentence.

To no avail. He heard theories about due process, cruel and unusual punishment, equal protection. But he felt constrained by constitutional precedent that bound him to a sentence he characterized as "unjust, cruel and irrational." So he imposed the 55-year sentence, complete with a plea to Congress to rewrite the laws and to President Bush to commute the sentence he imposed (available here).

What seems to have been missed is the statutory language. § 924(c) defines "crime of violence" (such as bank robbery) narrowly to refer to "an offense". In contrast, "drug trafficking crime" means "any felony." This statutory difference in language reflects Congress’s intention that the questions be approached differently. Which makes perfect sense in light of the Guidelines grouping policies: crimes of violence are treated as separate offenses under Chapter 3, while drug trafficking offenses are treated as a single offense with a cumulation of the drug quantity. Which also makes perfect policy sense because drug crimes can be charged to simply require a two-level gun bump or can be fragmented into multiple offenses based on the prosecutor's creativity in drafting the indictment. And a statutory ruling would avoid the necessity of addressing the troubling constitutional issues. Professor Erik Luna, in his appeal of the Angelos case, is giving the Tenth Circuit the opportunity to consider some powerful constitutional arguments, but resolve the case based on the statute.

Almost every important post-Apprendi, post-Blakely issue is susceptible of layered arguments: the Fifth and Sixth Amendment issues undergirded by statutory arguments based on the Doctrine of Statutory Avoidance and other canons of statutory construction. The Blog Summary on the right sets out arguments on reasonable doubt, confrontation at sentencing, the Armed Career Criminal Act, and the illegal reentry statute that raise constitutional doubt, then invite ruling on statutory grounds. Why try to kick a 55 yard field goal when you get the same points from 35 yards out? Why only argue that Almendarez-Torres has been overruled when reinterpretation of a statute under the Doctrine of Constitutional Avoidance reaches the same result?

If you still have doubt about the efficacy of layering the statutory arguments, check out this article (linked from the ever-helpful Professor Doug Berman) by Professor Ward Farnsworth on Signatures of Ideology: The Case of the Supreme Court’s Criminal Docket. His chart on page 3 breaks out the Justices' voting in non-unanimous cases involving criminal law issues. The Justices are ranked by frequency of voting with the government, and therefore against the individual, in both constitutional and non-constitutional cases. For the most conservative of the Justices, with the exception of Justice Thomas, favorable rulings are significantly more frequent on statutory than on constitutional grounds. My bet is that our district and circuit judges would have an even greater preference for favorable statutory rulings over favorable constitutional rulings.

If we can establish constitutional doubt, the defendant should always win under the Doctrine of Constitutional Avoidance. If we can establish statutory ambiguity, the defendant should always win under the Rule of Lenity. Although the government has no equivalent rule of construction, we know that our clients sometimes lose because they are defendants, because they are accused of crime, and because the government receives an often unwarranted level of deference from the courts. But the overall lesson from the 2004-05 Term is that the Justices are intensely interested in statutory construction, want to avoid reaching unnecessary constitutional decisions, and are quite willing – on occasion – to apply the rules of statutory construction to the advantage of our clients.

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