Case o' The Week: Ninth Can't Bear Plain Error on Failure to Instruct

In a great decision the Ninth strongly backs the "public authority" instruction and defense, in a case involving a questionable DEA handler . See United States v. Bobbie Bear, __ F.3d __, Slip Op. 1995 (9th Cir. Cir. Feb. 24, 2006), available here. The opinion is particularly notable, since the conviction was reversed on plain error review.

Players: A great win by Ben Coleman, formerly of the San Diego Community Defender. Ben and his Defender buddy Steve Hubachek were the creative devils behind the infamous Buckland challenge. (NB: Ben was not trial counsel in Bear).

Facts: Bobbie Bear was a DEA informant. Id. at 1998. She was taped on an allegedly unauthorized sale for 12 - 15 pounds of meth. Id. at 1999. At trial, she testified and explained the sale was authorized by a cross-designated LA Sheriff’s Deputy. Id. The deputy (who had been fired for misconduct) took the stand and denied it. Id. At closing, both parties argued the sole real issue: was she authorized? Id. at 2001. There was no public authority instruction. Bear was convicted and got nearly 20 years. Id. at 2000.

Issue(s): 1. Public Authority Instruction: “Bear argues that although she did not request a public authority instruction, this was the crux of her defense reflected in her testimony and in closing arguments of both counsel. She argues the district court erred by not giving the jury a public authority instruction, sua sponte.” Id. at 1998.

2. Plain Error: “Because defense counsel neither requested a public authority instruction, nor objected to the instructions the court did give the jury, we review for plain error.” Id. at 2000.

Held: 1. Instruction: “First, the district court erred by not instructing the jury on a public authority defense.” Id. at 2001.

2. Plain Error: “We conclude that the district court committed plain error by not giving the jury, sua sponte, a public authority defense instruction, and we reverse Bear’s instruction.”

Of Note: Many have foundered on the shoals of Olano plain error – and particularly on the third prong (error that is “plain” and that “affects substantial rights.”) Id. at 2000. Bear is notable for its strong endorsement of the “public authority” defense.” It is remarkable, however, for its straightforward conclusion that failure to give this instruction – sua sponte – affected the defendant’s substantial rights. Id. at 2003.

How to Use: Bear is obviously now the lead case on “public authority” instructions. More importantly, Bear is a warning to district courts not to muck about with jury instructions. The defense bar can argue that, after Bear, it is plain error for a district court not to give a critical defense instruction sua sponte. Recall that plain error is a tremendously difficult standard of review. If the Bear premise is true, reversal is much more likely when the defense actually preserves objections, requests instructions, and the instructions are nonetheless denied. Thus, the broader lesson of Bear is for the district courts to give the defense more latitude on jury instructions.

For Further Reading: What is with the DEA? In Bear, the key cross-designated agent was the subject of a nine-volume investigation . . . and the AUSA disclosed none of these impeachment materials, despite calling the agent as a rebuttal witness. In a similar “public authority” case recently in the Northern District of California, the DEA intentionally used an unbelievably dirty snitch – and the DEA agent-handler took the Fifth when the judge questioned him about it in trial! See Tarlow, Barry, Rico Report: Pre-Plea Brady/Giglio Disclosures: Beware of Prosecutors Bearing Gifts, The Champion, Jan.-Feb. 2006, 30-FEB Champion 60. In the San Francisco case, the DEA was so corrupt (and the USAO arguably so complicit in allowing the case to proceed) that Judge Charles Breyer has authorized depositions of US Attorney Kevin Ryan in a Hyde Amendment malicious prosecution action! See article here. The DEA is like FEMA’s evil twin: as competent as Emergency Management, with a dishonest streak to boot. More DEA cases need to go to trial.

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

Guidelines Appeals: the presumption of reasonableness and reasonable doubt

A number of circuits have now decided that, in reviewing a sentence for reasonableness, the defendant must overcome a rebuttable presumption that a sentence within the Guidelines range is reasonable (as blogged by Professor Berman here). The Third and maybe the Eleventh Circuit disagree. The Ninth Circuit retracted a footnote buying into the presumption in Velasquez-Guerrero. The presumption of reasonableness is problematic for several reasons. The text of the Booker remedial opinion appears to specifically contemplate a reasonableness review unfettered by any presumption that a guideline sentence is reasonable. Such a presumption would recapitulate the same type of authority the mandatory guidelines had over the ultimate sentence. And the presumption some circuits are reading into the guidelines is the type of presumption that the Supreme Court has only permitted in criminal cases where the relevant facts have been proved beyond a reasonable doubt. For those circuits in which the judicial gloss of a presumption has been adopted, we have even stronger reasons for asserting the reasonable doubt standard at sentencing, both under the Doctrine of Constitutional Avoidance and directly under Winship (as blogged here, here, here, here, and here).

The Presumption Has No Basis In Booker Or The Statutes

The cases creating a presumption of reasonableness find no support in statutes or in the Booker opinion. On the contrary, Justice Breyer’s remedial Booker opinion contemplates a reasonableness review unencumbered by special deference for the guidelines. After the excision of the mandatory portions of the guidelines, the Court noted that the remaining appellate rights did not accord special deference to the guidelines over other relevant sentencing factors: " [T]he Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a))." 125 S.Ct. at 765.

Justice Breyer clearly stated that, with § 3742(e) excised, the standard of review would have to be implied from the remainder of the statute, which did not include special consideration for the Guidelines range. He pointed out that, under the old regime, appellate judges reviewed for reasonableness both the degree of departures and sentences for crimes without guidelines -- 16.7% of sentencing appeals. Justice Breyer then stated that this same standard would apply to all sentencing appeals "across the board": "And that is why we believe that appellate judges will prove capable of facing with greater equanimity than would Justice Scalia what he calls the ‘daunting prospect,’ [] of applying such a standard across the board." 125 S.Ct. at 766.

In fact, a presumption of reasonableness negates what Justice Breyer saw as the check on discordance in the system. The Sentencing Commission would "continue to collect and study appellate court decisionmaking." Based on the untrammeled reasonableness review, the Sentencing Commission could modify the guidelines, "encouraging what it finds to be better sentencing practices." A judicial presumption would skew the data, rather than inform the supervising body regarding areas in need of adjustment. And the sacrifice of some uniformity is the necessary consequence of refusal to accord Sixth Amendment protections to sentence-enhancing facts: "We cannot and do not claim that use of a ‘reasonableness’ standard will provide the uniformity that Congress originally sought to secure." 125 S.Ct. at 766-67.

The Originating Cases Failed To Establish A Doctrinal Source For A Presumption.

So where did this presumption of reasonableness come from? Tracing back the precedent, there is nothing but a general citation to Booker and uniformity to support this radical curtailment of appellate rights. You can link to a diagram charting the spread of what I think we should call the Presumption of Reasonableness Virus (PRV) here. When a questionable proposition begins to harden into law, it is useful to trace the cases back to see the force of reasoning or precedent in the originating cases. The diffusion of the PRV is a classic: the cases that have exploded into publication in the last several weeks all have their origins in three cases, none of which rely on any statute or Booker holding.

The PRV began in three separate cases decided within a month of each other in the summer of 2005: Mykytiuk (415 F.3d 606) in the Seventh Circuit; Lincoln in the Eighth Circuit; and Gonzalez (unpublished, 134 Fed. Appx. 595) in the Third Circuit. The Gonzalez case has now been rejected by the Third Circuit in Cooper, which explicitly disclaims any presumption of reasonableness. Mykytiuk just cited generally to Booker, then spelled out the PRV with no language or reasoning other than the importance of uniformity under the Guidelines system; Lincoln provided a "Cf." cite to a footnote in a previous case on the need to compute the guidelines correctly to make a reasonableness determination. From this dearth of authority, the PRV has been replicated without analysis, incubating in numerous unpublished opinions before the recent outbreak, which has suddenly resulted in a plurality rule.

The presumption of reasonableness emerged in the Ninth Circuit as dicta in a footnote before the court filed an amended opinion deleting the reference in Velasquez-Guerrero (as blogged here). The Ninth Circuit got it right several days earlier in Cantrell, in which the Court pointed out that, after Booker, review must be based on all the § 3553(a) factors circumstances with no special status for the guideline range. The PRV source cases do not support the extreme step of adding an anti-defendant presumption to sentencing appeals.

The Presumption Of Reasonableness Invites Sixth Amendment Violations Through The Back Door.

As pointed out in Justice Stevens’ merits opinion in Booker, the mandatory guidelines system was not really mandatory – judges were allowed to depart based on a wide range of circumstances. Some departures were encouraged, others were discouraged, and some simply involved facts outside of the heartland for the particular offense. Justice Stevens noted that, superficially, the judge’s ability to depart made the statutory maximum the relevant maximum under an Apprendi analysis. But because departures are not available in every case, and because in most cases the Guidelines account for all relevant factors, the significance of the Guidelines on an individual’s freedom required full Sixth Amendment trial rights for facts that increased the offense level. A presumption that a sentence within the Guidelines range is reasonable implicates the same interest in liberty that was decisive in Booker. The deference for the Guidelines range created by a judicial presumption is difficult to distinguish from the mandatory Guidelines denounced in the first Booker opinion. In fact, the Sentencing Commission characterized the pre-Booker regime as "presumptive" sentencing in its recent 15-year report (here at page 7).

Even without the presumption, some judges’ deference for the Guidelines jeopardizes Sixth Amendment rights. Some district court judges have freed themselves from the guidelines while others hold tight with an icy grip. The range of authority accorded the Guidelines range makes Sixth Amendment review a moving target – and provides one of the strongest arguments for a reasonable doubt standard. The circuit courts have demonstrated notable reluctance to give effect to Apprendi and its progeny – especially in the context of retroactivity (as blogged here). By solidifying the Guidelines’ force into a presumption, the courts are again failing to give full effect to the Supreme Court’s Sixth Amendment jurisprudence.

A Presumption Of Reasonableness Requires Proof Of Enhancing Factors Beyond A Reasonable Doubt.

Let’s assume that a sentence within the Guidelines range is protected by a presumption of reasonableness on appellate review. Even aside from the Booker substantive opinion, doesn’t such an effect require that the necessary facts for the Guidelines range to apply be proved beyond a reasonable doubt? In the context of burden shifting presumptions in criminal cases, the Supreme Court has consistently articulated a standard that permits the government to shift the burden to the defendant only if the operative facts for harsher punishment have been proved beyond a reasonable doubt.

In Ulster County v. Allen, the Court distinguished between permissive inferences or presumptions – which place no burden on the defendant – and mandatory presumptions – which are "a far more troublesome evidentiary device" because they affect both the burden of proof and the allocation of proof. "For it may affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts." 442 U.S. at 159. The judicial presumption of Guidelines’ reasonableness has the same effect: without necessarily requiring proof of the operative facts beyond a reasonable doubt, the burden shifts to the defendant to show that the sentence based on constitutionally unreliable facts is unreasonable.

The analysis is similar to a comparison between Mullaney – one of the pillars upon which Apprendi was built – and its doppelganger Patterson. In Mullaney, under peculiarities of Maine state law, the defendant bore the burden of proving by a preponderance heat of passion or sudden provocation, which would negate malice aforethought necessary for a murder conviction. In a resounding elaboration on the importance of the reasonable doubt standard, the Court reversed because the allocation of the burden of proof unconstitutionally diluted the government’s obligation to prove malice aforethought to the jury beyond a reasonable doubt. As summarized in Patterson, "Wilbur’s due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation."

In contrast, in Patterson, the Court upheld the shifting of the burden of proof to the defendant to establish manslaughter facts once the government proved intentional murder beyond a reasonable doubt. The key to the Court’s analysis was that the State had proved all the facts necessary for the greatest punishment beyond a reasonable doubt: "The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder"; "if the intentional killing is shown, the State intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances." Just as "it is not in the province of a legislature to declare an individual guilty or presumptively guilty of a crime," the judiciary is not authorized to create a presumption based on facts – usually constituting separate crimes – not proved beyond a reasonable doubt.

The Supreme Court’s cases on presumptions and burden shifting have consistently provided maximum protection to the reasonable doubt standard. In Sandstrom and Francis, the Court held that a presumption that diluted the State’s burden of proof required reversal under Winship and Patterson. The rights at issue were so fundamental that the Court applied them retroactively in Yates. Yet the circuit courts appear to be stampeding toward a standard for appellate review that derogates those same rights, with no statutory or Supreme Court support for the judicial creation of the presumption.

The fashion for a presumption of reasonableness may pass or it may catch on. Either way, we need to preserve the issue, both as an unauthorized judicial gloss on Booker and as another argument in favor of the reasonable doubt standard.

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

Case o' The Week: Canby Can't Buy Gov't Forfeiture Theory, Rutledge

The Ninth rejects an overreaching government theory for criminal forfeiture in a notable case involving a Hawaiian labor organization. See United States v. Aaaron Rutledge, __ F.3d __, 2006 U.S. App. LEXIS 3448 (9th Cir. Feb. 14, 2006), available here.

Players: Judge Canby writes.

Facts: Anthony Rutledge was President and Chairman of “Unity House,” a Hawaiian nonprofit funded by labor unions. 2006 U.S. App. LEXIS 3448, *3. (Art Rutledge, left, founded the labor organization). Anthony Rutledge was charged with mail and wire fraud on the theory that he fraudulently gained control of the corporation and its assets. Id. at *4. The district court granted the government’s motion for a preliminary injunction, froze the corporation’s assets, and appointed a receiver. Id. at *4-*5.

Issue(s): 1. Criminal Forfeiture and Wire/Mail Fraud: “Rutlege’s threshold argument is that criminal forfeiture is not authorized by statute for the mail and wire fraud crimes with which he is charged.” Id. at *5.

2. “Proceeds:” Has “the government . . . failed to make the requisite showing of probable case to believe that the assets of Unity House were ‘proceeds’ of Rutledge’s alleged mail or wire fraud[?]” Id. at *9.

Held: 1. Criminal Forfeiture and Wire/Mail Fraud: The criminal fraud statute, as amended by CAFRA in 2000, permits criminal forfeiture for wire and mail fraud. “We accordingly reject Rutledge's contention and agree with the district court that section 2461(c) authorizes criminal forfeiture of proceeds of the mail or wire fraud crimes with which Rutledge is charged.” Id. at *8.

2. “Proceeds:” The government’s theory of “proceeds” went beyond that forfeitable in the statute. “Although we conclude that the proceeds of mail or wire fraud are subject to criminal forfeiture, we agree with Rutledge that the government has failed to make the requisite showing of probable cause to believe that the assets of Unity House were ‘proceeds’ of Rutledge’s alleged mail or wire fraud.” Id. at *9.

Of Note: This is a commendable opinion in its refusal to cave into the government’s expansive reading of “proceeds” subject to the forfeiture law. Id. at 1665. Not discussed in the opinion is the fact that this preliminary injunction froze funds that were being used to pay for defense counsel. (See cites in “For Further Reading” below). This is precisely how those involved in indigent defense find themselves tangled up in criminal forfeiture law – clients who could otherwise afford private attorneys lose access to their funds through forfeiture allegations.

A great place to start when dealing with forfeiture is the web site of “Forfeiture Endangers American Rights” (FEAR), website here. ND Cal CJA attorney Susan Raffanti is active in FEAR, and co-authored one of the leading treatises on asset forfeiture, the FEAR Asset Forfeiture Defense Manual.

How to Use: The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) changed criminal forfeiture law, and now permits criminal forfeiture for any violation an Act of Congress. Id. at *5-*6. Before CAFRA, however, the criminal forfeiture statute was much more limited in scope. Id. If you have any old fraud cases, make sure the check whether overt acts happened after August 22, 2000 (the effective date of CAFRA). If not, there is an ex post facto bar to forfeiture of proceeds of fraud. See, e.g., United States v. Colon-Munoz, 192 F.3d 210 (1st Cir. 1999) (discussing ex post facto ramifications of criminal forfeiture and analyzing overt acts in light of ex post facto concerns).

For Further Reading: “Unity House” seems to be one of those uniquely Hawai’ian institutions, started over fifty years by patriarch Art Rutledge to protect local unions from control of mainland labor. See article here. After reading the government’s serious allegations in Rutledge, one would expect that the defendants – if convicted – would have gone down on long fraud sentences. In reality, lead defendant Aaron Rutledge pleaded to a misdemeanor on February 6 and will get one year of probation. See article here.

Yet another impressive prosecution by the federal government . . . .

Steven Kalar, Senior Litigator N.D. Cal. Website available at www.ndcal.fpd.org

Hamdan: Doesn’t The Government’s Interpretation Of The DTA Make It A Classic Bill Of Attainder?

Federal Defenders appointed to represent Guantanamo detainees in the District of Columbia are watching with interest the Supreme Court litigation in Hamdan regarding the Detainee Treatment Act. The government claims that Congress retroactively stripped federal courts of the habeas jurisdiction the Supreme Court found in Rasul, which enabled detainees to challenge whether they are enemy combatants. The government's claim flies in the face of the statute’s text, which appears to be unambiguously prospective. The words of the statute explicitly addressing retroactivity are directed to subsections (e)(2) and (e)(3) of the Act; the habeas stripping provision is in (e)(1). Basic rules of construction -- espressio unius est exclusio alterius -- foreclose construction of the statue to retroactively deprive pending petitioners of their day in court.

The government’s claim that Guantanamo detainees can be singled out and deprived of access to the federal court suffers a further defect, apart from the presumption against retroactivity, the violation of due process, and the effective suspension of habeas corpus. Doesn’t a retroactive construction of the DTA constitute an unconstitutional Bill of Attainder under Article I, Section 9, Clause 3? And doesn’t the specific provision of the Constitution banning Bills of Attainder trump the general power to legislate in the area of federal jurisdiction?

Mr. Hamdan correctly observes in his briefing, without contradiction in the government’s reply, that a retroactive DTA would constitute a classic Bill of Attainder. Two cases from 1866 support this position. In Ex parte Garland, 71 U.S. 333 (1866), the Court found that a law directed against individuals who had taken arms against the Republic was an unconstitutional Bill of Attainder. Congress passed a statute prohibiting appearance in any federal court by any attorney who failed to take and subscribe to an expurgatory loyalty oath that, by its terms, excluded former members of the Confederacy. Garland, an attorney and former member of the Confederacy, brought an action for declaratory relief in the Supreme Court seeking to have the legislation declared unconstitutional. Writing for the majority, Justice Fields found the loyalty oath legislation to constitute a Bill of Attainder barring otherwise qualified individuals from practice before federal courts:

"The statute is directed against parties who have offended in any of the particulars embraced by these clauses. And its object is to exclude them from the profession of law, or at least from its practice in the courts of the United States. As the oath prescribed cannot be taken by these parties, the act, as against them, operates as a legislative decree of perpetual exclusion. And exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct."

71 U.S. at 377 (emphasis added). To block the Guantanamo detainees from proceeding with their currently pending litigation in federal court, with the consequent indefinite detention, is a far more punitive and specific Bill of Attainder than the law reviewed in Garland.

The Supreme Court also focused on the access-to-the-courts aspect of a Bill of Attainder in Cummings v. Missouri, 71 U.S. 277 (1866), asserting that the Bill of Attainder proscription encompassed the deprivation or suspension of "any rights, civil or political," by legislative fiat:

"The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment."

(Emphasis added). In Cummings, a priest was jailed for ministering without providing an oath that he had not participated in the rebellion against the United States. The Court emphasized that the analysis of a Bill of Attainder was functional, and not dependent on labels:

"The Constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding."

Cummings, 71 U.S. at 325. The Court relied extensively on Blackstone’s definition of punishments, which included banishment, loss of property, disqualification from offices, and "loss of liberty by perpetual or temporary imprisonment." Cummings, 71 U.S. at 321.

Under the applicable standards, retroactive application of the DTA renders it a Bill of Attainder:

• the individuals affected, persons with habeas corpus petitions pending at the time of the DTA’s enactment, could not be more discrete and identified: they are the persons who filed for habeas relief from Guantanamo Bay after the Rasul decision;
• the legislative animus is reflected in the repeated characterization of the detainees as terrorists from the floor of the Senate, even though, as the Seton Hall Report on Guantanamo Detainees has revealed, only a small minority of detainees took arms against the United States or belong to al Qaeda;
• as a practical matter, the detainees will suffer indefinite detention without any means of developing relevant facts or challenging the validity of previous assertions made against them by the government.

A retroactive DTA would be a Bill of Attainder against the detainees with cases pending in federal court. But the Court never needs to reach this issue because, if not unambiguously prospective, the Doctrine of Constitutional Avoidance would apply. Before reaching the substance of the constitutional question, the Court, as recently elaborated in Clark v. Martinez, must determine if the statute is amenable to construction to avoid the question. Thus, if the statute is ambiguous regarding retroactivity, the Court should simply give Congress credit for not intending to create a Bill of Attainder as to those petitioners with pending cases.

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

Browning: another reason to apply the Doctrine of Constitutional Avoidance to the Armed Career Criminal Act

In Browning, the Seventh Circuit pointed out Booker’s inconsistency with Almendarez-Torres, but affirmed an ACCA sentence because only the Supreme Court can overrule Almendarez-Torres. In clinging to Almendarez-Torres, the court failed to follow two Supreme Court holdings requiring that courts must avoid the application and extension of the Almendarez-Torres under the Doctrine of Constitutional Avoidance. The ACCA presents the classic opportunity for such statutory construction because the text provides no instruction regarding the pleading and proof requirements. In the absence of such legislative command, the court is free to -- and must --reinterpret the ACCA in light of the Supreme Court’s recent Sixth Amendment jurisprudence to require pleading by indictment and proof beyond a reasonable doubt of the sequence and characteristics of the three predicate offenses (as briefed here).

In Browning, after conviction by jury trial, the defendant disputed whether the supposed ACCA predicate convictions were related. The good news is the Browning court’s clear understanding of the constitutional doubt regarding the validity of Almendarez-Torres: "Booker holds that there is a right to a jury trial and to the reasonable-doubt standard in a sentencing proceeding (that is, the Sixth Amendment is applicable) if the judge’s findings dictate an increase in the maximum penalty. Findings made under the ACCA do that. So if logic rules, those findings too are subject to the Sixth Amendment." This statement reinforces the Supreme Court holdings – not addressed in Browning – that the Doctrine of Constitutional Avoidance applies to application and extension of Almendarez-Torres.

As previously blogged here and here, both Shepard and Haley hold that the continuing validity and the extension of Almendarez-Torres implicate the Doctrine of Constitutional Avoidance. In Haley, the Court stated that, given post-Almendarez-Torres Sixth Amendment jurisprudence, whether a jury must find beyond a reasonable doubt the existence of prior convictions and the additional fact that they were sequential are "difficult constitutional questions...to be avoided if possible." In Shepard, the Court limited the source of facts regarding the characteristics of prior convictions for the same reason: "The rule of reading statutes to avoid serious risks of unconstitutionality....therefore counsels us to limit the scope of judicial factfinding on the generic character of a prior plea."

Mr. Browning apparently did not invoke the Doctrine of Constitutional Avoidance. As in Shepard, where Justice Thomas noted that the defendant did not raise the general applicability of Almendarez-Torres to the ACCA, the statutory question must be raised to be decided – and the question is still one of first impression not addressed or decided in a published opinion. But Browning provides strong evidence in support of the seriousness of the constitutional question whether, in the absence of jury findings beyond a reasonable doubt, the ACCA’s increase of the statutory maximum violates the Sixth Amendment.

The Seventh Circuit's analysis simply missed a step critical to resolution of the pleading and proof requirements under the ACCA. Although correctly noting that there is no summary judgment or directed verdict in criminal cases, the court allowed for judicial determination of the characteristics and sequence of the priors based on Almendarez-Torres. The court noted the illogic of denying Sixth Amendment protection to judicial findings, but suggested that judicial findings protect defendants.

But depriving defendants of Sixth Amendment rights does not protect defendants. On the contrary, Almendarez-Torres itself was based in part on the contrast with weapons cases: the jury hearing a § 1326 illegal reentry case would not know of any prior convictions, whereas, in contrast, the jury knows full well in a § 922(g) prosecution for felon in possession of a firearm -- the predicate for ACCA treatment -- that the defendant has a prior conviction. Almendarez-Torres, 523 U.S. at 230 ("But cf. 18 U.S.C. § 922(g)(1)(prior felony conviction an element but conduct not otherwise unlawful.")). And Justice Souter in Shepard specifically noted that the prior conviction problem is appropriately in the hands of the defendant. 125 S.Ct. at 1263 n.5("[A]ny defendant who feels the risk of prejudice is too high can waive the right to have a jury decide questions about his prior convictions.")). See also Old Chief, 519 U.S. 172 (stipulation required to avoid prejudice from the type of prior conviction in a § 922(g) case). As Justice Thomas pointed out in his Shepard concurrence, "Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental ‘imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements.’"

The Supreme Court has instructed courts that statutes must be construed to avoid constitutional questions regarding pleading and proof on the sequence and characteristics of prior convictions. Mechanical adherence to Almendarez-Torres ignores that instruction and is especially dismaying because of the limits of the case. Apprendi required that Almendarez-Torres be narrowly limited to its unique facts. Thus, extension of Almendarez-Torres to characteristics of prior convictions and their sequence are simply not governed by Almendarez-Torres, which only involved the Fifth Amendment right to indictment and only referred to the fact of conviction. Almendarez-Torres itself explicitly disclaimed any holding regarding proof of priors: "[W]e express no view on whether some heightened standard of proof might apply to sentencing determinations that bear significantly on the severity of sentence." In a case that increases the § 922(g) maximum from ten years to life without parole, reliance on Almendarez-Torres is a major extension of a case the Supreme Court has held should be sharply limited.

The courts need to be directed to the essential first question in addressing statutes that enhance sentencing maximums based on the sequence and characteristics of prior convictions. The published cases are full of pronouncements that Almendarez-Torres must be followed unless and until reversed by the Supreme Court. But no court should even be reaching that question until the Doctrine of Constitutional Avoidance has been applied.

We need to be consistently arguing the Doctrine of Constitutional Avoidance instead of allowing the courts to repeatedly affirm Sixth Amendment violations with the Almendarez-Torres mantra. The memo linked above is directed to the ACCA but is adaptable to other substantive or procedural sentencing statutes that involve prior convictions but do not set out the means for pleading and proof.

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

Case o' The Week: Ninth Trotts Out Odd Language on CI Disclosure - Napier

Writing for the Ninth, Judge Stephen Trott repeats some old Franks and CI disclosure law in the new Napier decision. United States v. Arthur Napier, __ F.3d. __, Slip. Op. 1401 (Feb. 7, 2006), available here. There is, however, some potentially dangerous language in the case that – if not explained by the defense– could cause mischief in the hands of a sloppy prosecutor.

Players: Judge Trott writes for the panel.

Facts: Cops get a state search warrant with a CI. Slip. Op. at 1405. The snitch puts Napier in two drug sales in the fall of ‘01. Id. Because of safety concerns, the affidavit identifying the snitch is put under seal. Id. When the case went federal Napier moved for disclosure of the snitch – explaining he had not sold drugs during that time period. Id. at 1406, 1410. The district court disclosed a redacted affidavit, held an evidentiary hearing (on danger to the snitch, it appears), and offered an in camera hearing to reconcile the disputed facts. Napier renewed the CI disclosure motion and asked the Court to undertake its own Franks hearing. Id. at 1406. The court conducted a Roviaro balancing test and denied the motion. Napier pleaded to a conditional plea.

Issue(s): 1. When the defendant flatly denies a CI’s allegations, is he entitled to CI disclosure? 2. If the defendant asks for dates of sales and other such info – instead of the CI’s identity – can the district court conduct a Roviaro balancing and withhold? Id. at 1408.

Held: 1. CI Disclosure When Defendant Denies: It is not an abuse of discretion for a district court to refuse to disclose the identity of a confidential informant despite a defendant’s “naked” denial of a CI’s allegations, when i) the defendant gets a redacted affidavit, ii) the court conducts Roviaro balancing, and iii) the defendant turned down an in camera hearing for the court to examine the truth of the informant’s allegations.

2. Roviaro When CI Identity Not in Issue?: Roviaro balancing – and the informer’s privilege – is as broad as necessary to protect the informant’s safety and usefulness. Roviaro balancing can apply to facts beyond identity that would reveal the informant. Id. at 1408. “The privilege identified in Roviaro protects more than just the name of the informant and extends to information that would tend to reveal the identity of the informant.” Id. at 1408.

Of Note: Much of Rapier is familiar, settled law. There is, however, an unsettling discussion of “lessened” due process rights in suppression hearings. Id. at 1409. Judge Trott writes, “Napier’s argument for an absolute right (for CI disclosure) is further weakened by the Supreme Court’s determination that due process requirements at suppression hearings are less elaborate and demanding than those at trial.” Id. This language should be limited to the context of Napier’s aggressive stance of almost per se disclosure. The defense bar needs to fight the expansion of this “less elaborate” due process approach to suppression hearings – which are, after all, often the whole enchilada in the case.

How to Use: With typical imprecision, ND Cal AUSAs have already read Napier to mean that there is no CI disclosure in Franks hearings. Wrong. Napier doesn’t change established law on CI disclosure.

Moreover, the defendant in Napier turned down the court’s offer of an in camera hearing. That is an important distinction upon which to seize: Napier, at minimum, was entitled to an in camera hearing on the snitch’s allegations. Napier turned down this hearing, but it seems clear that he was entitled to it had it not been waived.

Finally, use Trott’s “less due process” argument against the government. Renew the CI disclosure motion after losing the Franks hearing and when proceeding to trial. Flipping Trott’s logic, there is a higher due process need for disclosure at trial. Therefore, the defense should get a second – and more-favorable – Roviaro hearing for CI disclosure at the pretrial conference.

For Further Reading: (Senior) Judge Stephen Trott is a Highwayman (a singer, not a robber). See article here. This makes him the most conservative 60's folk singer on the federal bench. A Reagan appointee and former Ass’t A.G., Judge Trott is generally a friend of the Right. Like Kozinski, however, he can be a welcome stickler for constitutional protections and can unmercifully grill an AUSA who cut corners or behaved unethically. He also is a vocal skeptic of snitches. See article here. Given that skepticism, one would have hoped some better language in Napier – where the defendant flatly proclaimed that the snitch was lying.

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

Case o' The Week: Ninth Tosses the Cat out of the Bag, Williams and mid-stream Miranda warnings

The old "cat of the bag" analysis questioned the viability of post-Miranda confessions when custodial interrogation had already produced statements. That line seems doomed with developing Miranda law out of the Supreme Court; specifically Elstad and Seibert. In Williams, the Ninth wrestles with how to interpret the "fractured" and "splintered" Supreme Court plurality decision in Seibert. United States v. Williams, __ F.3d __, Slip. Opp. at 1181 (9th Cir. Jan. 30, 2006), decision available here. The resulting rule is not exactly a model of clarity. Moreover, as discussed below, it incorporates a test that seven Justices seem to have rejected . . . .

Players: The ubiquitous Carl Gunn, AFPD CD Cal, slugging away again in the Ninth.

Facts: In a false passport case, Williams was interrogated in a custodial setting and made some damning statements. Slip op. at 1186. He was then Mirandized, and made more bad (written) statements. Id. at 1186-87. The district court suppressed the first, oral statements but admitted the latter statements at trial. Id. at 1187. After the trial, the Supreme Court decided Missouri v. Seibert, 542 U.S. 600 (2004) – a decision on midstream Miranda rights that is a mess of concurring and plurality opinions.

Issue(s): 1. Splintered opinions: How does an appellate court interpret a fractured Supreme Court decision? 2. Post-Seibert rule: What is the test for mid-stream Miranda cases after the Supreme Court’s decision in Seibert? 3. Deliberate Two-Step Inquiry?: “How [should a court] determine whether an interrogator used a deliberate two-step inquiry?” Id. at 1199.

Held: 1. Splintered opinions: “[W]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds.” Id. at 1197 (quoting Marks). 2. Post-Seibert Rule: “[W]e hold that a trial court must suppress postwarning confessions obtained during a deliberate two-step interrogation where the midstream Miranda warning – in light of the objective facts and circumstances – did not effectively apprise the suspect of his rights.” Id. at 1198 (emphasis added). 3. Deliberate Two-Step? “[I]n determining whether the interrogator deliberately withheld the Miranda warning, courts should consider whether objective evidence and any available subjective evidence, such as an officer’s testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning . . . Such objective evidence would include the timing, setting, and completeness of the prewarning interrogation, the continuity of police personnel, and the overlapping content of the pre-and postwarning statements.” Id. at 1200.

Of Note: Good luck figuring this case – and the resulting test – out. A more detailed analysis was undertaken by Judge Berzon in her dissent in United States v. Rodriguez-Preciado, 399 F.3d 1118 (9th Cir. 2005). In Rodriguez-Preciado, Judge Berzon carefully tallies the votes of the plurality and concurring Justices for the various issues at play in Seibert. She persuasively argues that the “subjective intent” of the interrogator was a factor rejected by seven Justices. Id. at 1141. Oddly, the Ninth nonetheless seems to adopt exactly that factor in Williams – looking at whether the two-step interrogation process was deliberately used by the interrogator. Hence, the Ninth appears to have adopted a new test supported by one Justice, (Kennedy) and rejected by seven.

How to Use: Although the defense bar won’t love this new “deliberate two-step” test, the new standard is so confusing that it’s bound to botched by the cops. Williams is replete with good language disfavoring the two-step interrogation process. For example, “Once a law enforcement officer has detained a suspect and subjects him to interrogation – as was the case in Seibert and is the case here – there is rarely, if ever, a legitimate reason to delay giving a Miranda warning until after the suspect has confessed. Instead, the most plausible reason for the delay is an illegitimate one, which is the interrogator’s desire to weaken the warning’s effectiveness.” Id. at 1201 (emphasis in original).

For Further Reading: Before he was a judge, Professor Willie Fletcher often railed against the trend of increasingly fractured Supreme Court decisions. In a Washington Times editorial, a columnist blames these complex new opinions on too many law clerks. See editorial here. Whatever the cause, Seibert is a textbook example of the downside of plurality decisions. The Harris mand-min decision is another good example.

AFPD Carl Gunn is obviously an expert and great resource on Seibert issues. R&W attorney Steve Koeninger, of the ND Cal FPD office - is another. He's helped litigate the stuffing out of Seibert in San Francisco, and quickly caught the Williams' tension with Berzon's dissent described above.

Steven Kalar, Senior Litigator; Steve Koeninger, R&W Attorney, N.D. Cal. FPD. Website available at www.ndcalfpd.org