Case o' The Week: Bahamonde and Defense Discovery

Writing for the Ninth, Judge Canby (left) pens a thoughtful decision refusing to require the defense to unilaterally disclose its rebuttal case. United States v. Bahamonde, __ F.3d __, 06 Cal. Daily Op. Serv. 4595 (9th Cir. April 25, 2006), available here. Good for its rejection of federal agency regs that require notice before calling government agents, the opinion is great for its broader endorsement of defense “surprise.”

Players: Notable win by San Diego Ass’t Kurt Hermansen, opinion by Canby.

Facts: Bahamonde was caught on the border with 27 kg of marijuana in his car. 06 Daily Slip Op. 4595, 4600. He protested that he was a blind mule – an acquaintance who sold him the car must have secretly loaded the drugs. Id. At trial, Bahamonde tried to call an ICE agent who had sat through the whole case. Id. The agent hadn’t investigated the car’s original owner, and was relevant to show that the government hadn’t pursued leads as to the real smuggling culprit. Id. The AUSA objected, because the agent hadn’t been informed that he’d be called under 6 CFR § 5.45(a). This reg requires that a defendant set forth, in writing, the “nature and relevance” of the information sought from Homeland Security. Id. The court agreed, and precluded the defense from calling the agent.

Issue(s): Did the district court err “by excluding the testimony of the government’s case agent, called by the defense, on the sole ground that Bahamonde failed to comply with the Department of Homeland Security’s regulations governing testimony by its employees[?]”

Held:. “We reverse for two reasons: (1) the regulation, which required disclosure by Bahamonde without reciprocal disclosure by the government, violated Bahamonde’s due process rights, and (2) the district court abridged Bahamonde’s Sixth Amendment’s rights by imposing the sever sanction of exclusion of the agent’s entire testimony without weighing the countervailing interests, such as Bahamonde’s constitutional rights, prejudice to his defense, or the availability of alternative sanctions.” Id. at 4599.

Of Note: The Ninth finds the regulation violated due process because it doesn’t provide for reciprocal discovery. Id. at 4602 (discussing Wardius v. Oregon, 412 U.S. 470 (1973)). From Wardius, the Ninth quotes: “It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.” Id. at 4603. In the present case, the reg was unfair because the defense was forced to disclose its witness and anticipated defense, “but the government was not required at any time to state what evidence it expected to offer in rebuttal, either from [the agent] or anyone else.” Id. at 4603.

This innocuous language captures a Big Idea: our right to mount an effective defense (or, as the government whines, to “sandbag.”) The defense case at trial is really a rebuttal case – we react after the government tries to meet its burden in its opening case. Just as the government needn’t disclose its rebuttal witnesses, the defense needn’t either – even rebuttal witnesses in the defense case. The important principle from this short opinion is the defense right to surprise. As Judges Canby and Kozinski correctly conclude, because there is no reciprocal discovery obligation for the government in its rebuttal case, the defendant’s right to surprise rises to a constitutional (due process) protection. Canby remembers what AUSAs often forget – if prosecutors want full reciprocal discovery, they should go back to their civil firms and take up insurance defense.

How to Use: Bahamonde obviously guts federal regs requiring pretrial disclosure to government-employee witnesses. The Bahamonde rule, however, may go far beyond these CFR requirements. What about the (public) procedure necessary to get federal tax returns? See 26 USC § 6103. Or local standing orders that impose unilateral discovery obligations on the defense? (Such as a new standing order in the N.D. California . . . ?)

For Further Reading: Judge Canby was appointed by Carter in ‘80. In the 1960's, he served five years in the Peace Corps in Ethiopia and Uganda. See Peace Corps Website here.
Now in his 70's, Canby has advised younger colleagues at the Ninth “that when I start agreeing with them on everything, it’s time for me to go.” Id.

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

Good Citations No. 2

Now for our next installment of those miscellaneous cases that might help a client in need:

• Notice of criminal forfeiture should be a little more demanding after the Supreme Court's reversal in Jones v. Flowers, where certified mail returned undelivered provided insufficient notice for tax sale of a home. In reaching the holding, Chief Justice Roberts distinguished Dusenbery, the criminal forfeiture case upholding mail notice without actual notice. Although actual notice is not required, this case involved the "new wrinkle" of the state being aware prior to the taking that its attempt at notice had failed. The Court required that further reasonable steps be taken before the property could be taken, which should apply equally in the criminal context.
• FPDs Franny Forsman and Art Allen brought in a great opinion in Piccolo regarding the definition of "crime of violence" under the Career Offender Guideline. The Ninth Circuit provides a helpful template for the categorical analysis of prior convictions, then holds that escape does not categorically qualify given the escape statute's coverage of walkaways from non-secure facilities (in fact, the Ninth Circuit has found an escape based on failure to surrender to a halfway house in Keller, 912 F.2d 1058 (9th Cir. 1990)). This creates a conflict with other Circuits.
• A nice case from the Second Circuit, blogged here, expands on the Section 1326 defense to illegal reentry based on constitutional problems with the underlying deportation. In Lopez, the court held that misinformation provided to the alien regarding eligibility for discretionary beneits deprived him of the opportunity for judicial review of the deportation.
• In a district court case regarding the BOP's residential drug and alcohol treatment program, Oregon District Judge Ancer Haggerty granted relief based on the BOP's delay of release due to unfounded placement in the Special Housing Unit. Barq, 2006 WL 1030158 (D.Or. Apr. 19, 2006), provides a good reminder that the BOP has to play by the rules.
• Another Second Circuit case, this time on substantial assistance. In Fernandez, the court not only joined the courts rejecting a presumption of reasonableness, but found that attempts at cooperation not resulting in a government motion should be considered: "[I]n formulating a reasonable sentence a sentencing judge must consider 'the history and characteristics of the defendant' within the meaning of 18 U.S.C. § 3553(a)(1),...including the contention that a defendant made efforts to cooperate, even if those efforts did not yield a Government motion for a downward departure pursuant to U.S.S.G. §5K1.1."
• AFPD Lisa Hay litigated Garcia-Rosales (2006 WL 468320 (D.Or. Feb. 27, 2006), in which Oregon District Court Judge Michael Mosman granted a motion to suppress where the government failed to establish a voluntary consent. The court first found that the police unlawfully detained Ms. Garcia-Rosales in the course of seizing her car, exceeding both the scope and the purpose of a Terry stop. Then the court found that the language barrier prevented the purported consent from being valid.
• After Blakely and Shepard, we are more and more often confronted with questions regarding the facts that are admitted during a plea for the purposes of categorical analysis of prior convictions. My personal favorite analysis has been the Arizona Supreme Court's opinion in State v. Brown, requiring that the plea colloquy reflect a knowing and voluntary waiver of Sixth Amendment rights regarding the elements of the offense.

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

US v. Rosenthal, No. 03-10307 (4-26-06). This is the celebrated medical marijuana case, where the feds prosecuted a medicinal marijuana grower in Oakland. The 9th rejected the defenses of acting under state/local authority, and the estoppel arguments, but granted relief because of juror misconduct. A juror consulted with an attorney "friend" on the eve of rendering a verdict. The attorney told her that she must follow the court's instructions or risk getting into trouble. The district court denied the motion for new trial based on this, but the 9th held that this contact amounted to extraneous evidence as opposed to ex parte contact with a juror. The 9th found that the contact here might have had a reasonable possibility that it affected the verdict. The extraneous evidence was a discussion on a substantive legal issue, akin to intent. The gov't moreover did not rebut the presumption of evidence.

US v. Arreola, No. 04-10504 (4-26-06). The 9th concludes that "possesses" and "uses or carries" are two means of committing a single offense and not two separate offenses under 924(c). The defendant here was arrested in a SUV during a drug buy. The gun was in the glove compartment, and he was way in the back. The gov't and court gave instructions that he possessed and carried the weapon, which mixed and matched two separate clauses. The defendant argues that this serves as an escape clause because of two different offenses inappropriately melded.The language of the statute is parsed under UCO Oil, considering (1) language, (2) legislative history and statutory context, (3) type of conduct; and (4) appropriateness of multiple punishments. Applying these factors to this case, the 9th holds that these are two acts in a common offense. This is so even though "uses and carries" is temporal and physical while "possess" focuses on 'intent." Still, it is difficult to separate the two. There was no error on the jury verdict form and the unanimity requirement is not violated. The 9th acknowledges this conflicts with the 6th Cir., but feels that all the UCO Oil factors weigh for an interpretation of acts in a single offense.

Davis v. Woodford, No. 05-55164 (4-27-06). The State must live by the bargain it struck. In this California "three strike" case, the state agreed that a petitioner's eight robbery convictions as only "one strike." It was a specific promise made in 1986 binds the state; the law may count the eight as separate incidents, but the state's promise made is a debt unpaid when the state tries now to cash in the eight.

US v. Huerta-Pimental, No. )4-50037 (4-24-06). The 9th rejects a constitutional challenge to Supervised Release as violating the sixth amendment. The 9th concludes that SR is constitutional under Apprendi, Blakely, and Booker. "Because supervised release is imposed as part of the sentence authorized by the fact of conviction and requires no fact-finding, it does not violate the Sixth Amendment principles recognized by Apprendi and Blakely. For the same reasons, a district court's decision to revoke supervised release and impose associated penalties is also constitutional. Additionally, because the revocation of supervised release and imposition of an additional term of imprisonment is discretionary, neither violates Booker." The defendnat here received a sentence for a 1326 that included SR. he returned. Tthe challenge was to SR. The constitutional challenges, as related above, failed because the 9th found the SR term to be part of the sentence, and its revocation and sentence to be discretionary. The statutory challenge that it wasn't an element of 1326 also was dismissed because a sentencing statute categorized convictions.

US v. Romero-Martinez, No. 05-10153 (4-25-06). The 9th holds again that an "altered or obliterated" serial number on a firearm that triggers an enhancement under the guidelines refers to a firearm where the serial number is materially changed so as to make the information less traceable. The serial number on the firearm here, which was removed, fit that definition. The defendant had the benefit of a jury trial on the issue of serial numbers (post_Blakely and pre-Booker) but the jury instructions used were without error. The 9th also found no merit in the argument that serial numbers put on by the manufacturer and not required by the gov't somehow evaded the enhancement. The goal of the statute and guideline is to make firearms traceable.

US v. Miranda-Guerena, No. 05-10198 (4-25-06). The defendant was a passenger in a car driving around Tucson. An undercover officer suspected drug trafficking, and had been investigating the driver and defendant. The officer reasoned that a traffic stop would be better than an investigatory stop, because that would tip off the occupants. Because the officer was sin an unmarked car, he radioed for a marked police car to stop the car should he (the caller) observe traffic violations. The officer spotted two, and asked the other officer to stop the car. Crack was found. Defendant argues on appeal that the traffic stop was without reasonable suspicion and violated due process because the officer stopping the car had not observe the violations. The 9th affirmed the conviction, holding that the officer himself didn't have to observe the violations; he just needed to have a reasonable basis to believe it occurred. He was told here by another officer. The 9th looked to state law, where an Arizona statute was interpreted in a subsequent opinion to allow such stops by officers that didn't witness the violation. The 9th also held that the fourth amendment permitted such stops so long as it was reasonable. In a concurrence, McKeown chides the majority for even looking at state law, because the stop met the 9th's fourth amendment analysis without reference to state law.

US v. Bahamonde, No. 04-50618 (4-25-06). This is noteworthy discover/notice case involving calling federal officers to testify. This was a prosecution of importation of marijuana across the border. The defense was that an acquaintance who sold the car had hidden the marijuana in it. This acquaintance was known to be a drug trafficker and was being investigated. The defendant sought to call the case agent, an officer from the Office of Homeland Security, to testify about the investigation. The officer had sat at counsel table throughout the trial. The prosecution objected because counsel had not complied with 6 CFR 5.45(a), which required written notice by defense counsel the nature and relevance of the official information sought. When counsel was asked by the court why he hadn't complied, he said that he thought it was a mere courtesy, and that he would be glad to do it right then. The court ruled the offer was untimely and precluded the witness. The 9th reversed. The 9th (Canby) reasoned that the regulation was a "discovery" regulation that was one-sided (requiring the defense to disclose but no requirement of the gov't on rebuttal of that information). This one-sided nature violated due process under Wardius v. Oregon, 412 US 470 (1973), which required notice of alibi by the defendant to also have the state disclose rebuttal. The reg here was similarly unfair. In addition, the defendant does not have to disclose in order to challenge. Such disclosure would defeat the purposes -- showing the defendant's hand without anything similar from the gov't. Finally, the court's remedy of preclusion was too severe given the constitutional issues at stake in mounting a defense and because there was no prejudice. Rawlison, in dissent, would find nothing wrong because this isn't a discovery case. DOJ and Homeland Security have legitimate reasons for having regulations, and because counsel didn't follow them, too bad.

IMPORTANT WARNING: This case should be a warning about the special rules that have to be followed when it comes to calling gov't witnesses. There are requirements for DOJ, and other agencies, and we don't comply with them at our peril. Thankfully this one came out all right.

Congrats to AFPD Kurt Hermansen of Federal Defenders of San Diego for the win.

US v. Lopez-Torres, No. 05-10392 (4-25-06). No surprise here: shooting at an occupied vehicle in violation of Calif. penal Code 246 is categorically a crime of violence, and under 2L1.2 (1326), it gets a 16 level enhancement.

US v. Littlesun, No. 04-30300 (4-21-06). The 9th holds that Crawford's right to confront testimonial evidence does NOT apply at sentencing. The defendant here pled guilty to selling 3.7 grams of meth, but the court found him accountable for 32.5 grams. The basis was the testimony of an agent that had interviewed his wife, and she recounted his selling activities. Defendant argued that he had a right to confront, because of Crawford, and that the wife had bias because she had fallen in love with someone else and he, by the way, had also seen someone else. The 9th acknowledged the power of the argument, and that Crawford would apply if this was trial, but it wasn't, and under Williams v. New York, 337 US 241 (1949), a court can consider wide-ranging information and evidence so long as it has an indicia of reliability. The 9th acknowledges that increase in sentence this causes, especially in a guideline context, but the Supreme Court's precedent still controls. The 9th joins the 1st, 2nd, 6th, 7th, 8th, and 11th Circuits on this issue. Although the 9th ruled against Crawford's application, the opinion highlights the fact that Williams came from another era (it is over half a century old), and penological philosophies have changed. The issue should be preserved and raised to the Supremes that if sentences are going to be exponentially increased based on weight and quantity, the evidence assumes a trial-like importance, and Crawford should apply.

US v. Salazar-Gonzalez, No. 04-50411 (4-21-06). The 9th holds "that for a defendant to be convicted of a 1326 'found in' offense, the government must prove beyond a reasonable doubt that he entered voluntarily and had knowledge that he was committing the underlying act that made his conduct illegal -- entering or remaining in the United States." This came up on an appeal from a denial of a defense proposed jury instruction. The defendant was found in the United States about 100 yards from the border, with 10 other Mexican illegals, hiding in the brush. The 9th was surprised it had confronted the issue before, but noted that the offense is a general intent one, which means that the gov't must prove beyond a reasonable doubt that the defendant knew and committed the facts that go into the offense, although he does not have to know that the actions themselves are illegal. So, the gov't has to show that the defendant knew he was in the US and came here voluntarily. The 9th found error in the denial of the instruction, but considered it harmless. Rymer, concurring, would not have clarified what instructions need to be given because here no facts supported the giving of such an instruction.

US v. Plouffe, No. 05-30045 (filed 1-18-06 and amended 4-21-06). In this Order amending the opinion, the 9th joins the other circuits in concluding that it has jurisdiction to review for reasonableness a within guidelines sentence. The 9th emphasizes that a review of ALL sentences is required to determine whether it is reasonable in light of the 3553 factors. A finding that a guideline sentence by itself is reasonable would violate Booker. This decision, when read in connection with Zavala, No. 05-30120 (4-11-06), makes clear that a court cannot hide behind the reasonableness of the guidelines, but must address the 3553 factors in each and every case, and apply them to each sentence. Zavala held that all the 3553 factors are to be applied, and that the guidelines cannot be considered to have incorporated them and so is a presumptive sentence, or has a place as a factor that is more important than the others.

As pointed out by several commentators, the gov't is chastised for not presenting other circuit law on this issue. The 9th stresses that when it has not decided an issue, it expects the parties to provide cites to other circuits' law or resolution.

US v. Littlesun, No. 04-30300 (4-21-06). The 9th holds that Crawford's right to confront testimonial evidence does NOT apply at sentencing. The defendant here pled guilty to selling 3.7 grams of meth, but the court found him accountable for 32.5 grams. The basis was the testimony of an agent that had interviewed his wife, and she recounted his selling activities. Defendant argued that he had a right to confront, because of Crawford, and that the wife had bias because she had fallen in love with someone else and he, by the way, had also seen someone else. The 9th acknowledged the power of the argument, and that Crawford would apply if this was trial, but it wasn't, and under Williams v. New York, 337 US 241 (1949), a court can consider wide-ranging information and evidence so long as it has an indicia of reliability. The 9th acknowledges that increase in sentence this causes, especially in a guideline context, but the Supreme Court's precedent still controls. The 9th joins the 1st, 2nd, 6th, 7th, 8th, and 11th Circuits on this issue. Although the 9th ruled against Crawford's application, the opinion highlights the fact that Williams came from another era (it is over half a century old), and penological philosophies have changed. The issue should be preserved and raised to the Supremes that if sentences are going to be exponentially increased based on weight and quantity, the evidence assumes a trial-like importance, and Crawford should apply.

US v. Salazar-Gonzalez, No. 04-50411 (4-21-06). The 9th holds "that for a defendant to be convicted of a 1326 'found in' offense, the government must prove beyond a reasonable doubt that he entered voluntarily and had knowledge that he was committing the underlying act that made his conduct illegal -- entering or remaining in the United States." This came up on an appeal from a denial of a defense proposed jury instruction. The defendant was found in the United States about 100 yards from the border, with 10 other Mexican illegals, hiding in the brush. The 9th was surprised it had confronted the issue before, but noted that the offense is a general intent one, which means that the gov't must prove beyond a reasonable doubt that the defendant knew and committed the facts that go into the offense, although he does not have to know that the actions themselves are illegal. So, the gov't has to show that the defendant knew he was in the US and came here voluntarily. The 9th found error in the denial of the instruction, but considered it harmless. Rymer, concurring, would not have clarified what instructions need to be given because here no facts supported the giving of such an instruction.

US v. Plouffe, No. 05-30045 (filed 1-18-06 and amended 4-21-06). In this Order amending the opinion, the 9th joins the other circuits in concluding that it has jurisdiction to review for reasonableness a within guidelines sentence. The 9th emphasizes that a review of ALL sentences is required to determine whether it is reasonable in light of the 3553 factors. A finding that a guideline sentence by itself is reasonable would violate Booker. This decision, when read in connection with Zavala, No. 05-30120 (4-11-06), makes clear that a court cannot hide behind the reasonableness of the guidelines, but must address the 3553 factors in each and every case, and apply them to each sentence. Zavala held that all the 3553 factors are to be applied, and that the guidelines cannot be considered to have incorporated them and so is a presumptive sentence, or has a place as a factor that is more important than the others.

As pointed out by several commentators, the gov't is chastised for not presenting other circuit law on this issue. The 9th stresses that when it has not decided an issue, it expects the parties to provide cites to other circuits' law or resolution.

Case o' The Week: The Plouffe is in the Pudding for In-Guideline Appeals

In an amended opinion the Ninth joins its sister Circuits and holds that it has jurisdiction to review the “reasonableness” of a guideline sentence after Booker. United States v. Plouffe, __ F.3d. __, No. 05-30045, Ord. at 06 Cal. Daily Op. Serv. 4495 (9th Cir. Jan. 18, 2006, amend. Apr. 21, 2006), decision available here. This good case arising out of Browning, Montana (left) has the danger of being read too broadly on the “reasonableness” of discrepancy between co-defendant sentences.

Players: Gould writes, Berzon and (D. Ct.) Schwarzer join.

Facts: Plouffe got a guideline sentence nearly double that of his co-D, “Mad Plume.” 06 Cal. Daily Op. Serv. at 4506. The Ninth sua sponte considered its own jurisdiction to review this guideline sentence, asking for additional briefing. Id. at 4502. (NB: Before Booker, the Ninth had no jx to consider a sentence within the guideline range. Id.)

Issue(s): Does the Ninth have jurisdiction to review the reasonableness of a sentence within the guidelines? Id.

Held: “The Supreme Court’s holding and reasoning in Booker is ‘clearly irreconcilable’ with our prior line of precedent that disclaimed jurisdiction over a challenge to a sentence within the Guidelines range . . . . Stated another way, Booker requires that appellate courts review the reasonableness of all sentences, which is informed by the Guidelines calculation as well as by the other factors set forth in § 3553(a). If our review were eliminated for sentences within the Guidelines range, there would be no review of the other factors for such sentences, and we would thus contravene Booker’s mandate regarding appellate review.” Id. at 4503. “Accordingly, we hold that we need not follow the prior precedents that constrained our jurisdiction to review an appeal of a sentence in the Guidelines range . . . .” Id. at 4505.

Of Note: In Plouffe, there was a new and novel issue in the Ninth, out-of-circuit decisions going against the government, and the AUSA did not disclose the out-of-circuit authority in supplemental letter briefs. Id. at 4501 n.1. The Montana USAO earns a public ding for that “oversight.” Id.

Also, another Ninth panel recently opined – in footnote dicta – that “guideline sentences are reviewed for violations of law and incorrect application of the Guidelines, not reasonableness.” United States v. Mix, __ F.3d. __, 2006 WL 802535, n.2 (Mar. 30, 2006). As was noted in the Case o’ the Week memo on Mix, that panel jumped the gun. Mix’s footnote two should be deleted, because it conflicts with Plouffe.

How to Use: Defender Jon Sands and other commentators have noted the importance of Plouffe (and Zavala) in expanding district courts’ guideline-constrained sentencing horizons. Another important benefit of Plouffe is that it increases defense bargaining power. After Plouffe, every case has a live appellate issue – even if the defendant receives the low end of the guideline range – because “reasonableness” varies by case and by defendant. Better yet, lazy AUSAs can’t threaten to withhold the third “acceptance” point for defendants who preserve these sentencing appeals.

How can a USAO stem the flood of Booker sentencing appeals? By buying the defendant off with a reasonable deal, and securing appeal waivers. In reality, Plouffe is probably most valuable as a defense bargaining chip. (How often will guideline sentences really get reversed for “reasonableness?”)

For Further Reading: The actual issue in Plouffe was whether a 71 month guideline sentence was “reasonable” when a co-D received 37. Id. at 4506. Plouffe, his co-D Mad Plume, and friend Four Horns severely beat an acquaintance named Stripped Squirrel. United States v. Plouffe, Brief of Appellee, 2005 WL 2175339. The Plouffe decision, unfortunately, simply reassures the reader that the district court considered all the § 3553(a) factors. 06 Cal. Daily Op. Serv. at 4506. Plouffe’s criminal history, however, was more serious than Mad Plume’s – and Plouffe committed another assault after this case, but before being indicted! U.S. Brief, 2005 WL 2175339, *6. Plouffe does not stand for the proposition that discrepancy among co-D sentences is never unreasonable – there were some unusual facts in the Plouffe case that didn’t make it into the opinion.

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

US v. Ferryman, No. 05-30081 (4-18-06). This is a "safety valve" case. The defendant plead guilty to possessing with intent to distribute an amount of marijuana that triggered a mandatory minimum. He also admitted to possessing eleven firearms, strategically placed around the house, six of which were loaded. He argues though that the weapons weren't possessed in connection with the drug deal. The district court scoffed at the argument, and the 9th guffawed as well. The 9th placed the burden on defendant to prove they weren't in connection. He tried to shift it to the gov't, but the 9th took aim at the gun enhancement in the drug guideline. The language placed on the defendant the burden to show that it was clearly improbable that the possessed weapon wasn't tied to the offense and it was applicable here. The 9th also took note that the place had been burglared previously, probably related to the drugs, and that was the reason for the weapons, dismissing the proffered reason that the defendant was protecting his son who had been beaten up previously by gang members.

US v. Elliot, No. 04-10571 (4-18-06). What was defense counsel thinking? He was representing a defendant in a controlled Fed Ex drug delivery case. His defense was that the defendant didn't arrange for the package to be delivered, and a witness was called to testify that he had arranged for the package to be dropped off. The judge expressed concern about the witness's fifth amendment rights, and asked counsel, "does he have a lawyer." The counsel dead-panned and said "not now." Well, on cross it turned out that the defense counsel had represented the witness on other matters, and on this matter concerning supposed "strange phone calls" he had received. Counsel stonewalled the court's inquiries, and defendant waived the conflict, but wouldn't give details. The witness's testimony was subsequently stricken when he did get a lawyer, and then invoked. The court then declared a mistrial for manifest necessity. Defendant argued for double jeopardy. The 9th didn't have much patience for the shenanigans of defense counsel, and the conflict presented. It found the court acted appropriately, and thoughtfully. The 9th also state that defense counsel was trying to set the court up for a reversal on appeal, and that at the time, it appeared that the defendant's right to present a defense was in tatters because of the confusion and the sticking of the witness. The 9th made plain that defense counsel had a conflict, and had to get off. No double jeopardy occurred.

This opinion has good language about conflicts arising from prior representation, and can be cited when such an issue arises. The 9th makes clear that previous representation of a witness is a clear conflict.

Guidelines Appeals: why within guidelines sentences are presumptively unreasonable

The courts that apply a presumption of reasonableness in Guidelines appeals violate both the Booker remedial opinion and the Fifth Amendment’s reasonable doubt requirement, as blogged here. But there is also an argument, based on a fundamental error in the calibration of the Sentencing Table, that within-guideline sentences should be viewed as presumptively unreasonable. Given the rule of parsimony in 18 U.S.C. § 3553(a), every bottom-of-the-guideline sentence is 2.2% higher than the Sentencing Commission intended.

The story starts in 1987, when the Sentencing Commission’s staff was assigned the task of creating a baseline for the Sentencing Table, upon which all federal sentences were to be graphed. To create the Sentencing Table, Sentencing Commission staff collected a large sample of sentences for a broad array of crimes and determined the actual time served as a baseline. United States Sentencing Commission, Supplemental Report On The Initial Sentencing Guidelines And Policy Statements (June 18, 1987) at 23. Then, the Commission "adjusted for good time" by figuring out the longer sentence for which the actual time served would be 85%:

"Prison time was increased by dividing by 0.85 good time when the term exceeded twelve months. This adjustment corrected for the good time (resulting in early release) that would be earned under the Guidelines. This adjustment made sentences in the Levels Table comparable with those in the Guidelines (which refer to sentences prior to the awarding of good time)."

Id.; see also U.S.S.G. Ch.1, Pt. A, § 3, para. 3 (2005) at 9 ("Honesty is easy to achieve: The abolition of parole makes the sentence imposed by the court the sentence the offender will serve, less approximately fifteen percent for good behavior.").

Thus, every federal prisoner has had their term of imprisonment imposed based on a Sentencing Table that assumes good time credit based on 15% of the sentence imposed. But the BOP takes a different view. As blogged here and here, the BOP does not base good time on the term of imprisonment, but substituted a "time served" formula that reduces maximum good time credit by seven days for every year of the sentence imposed. The BOP formula requires that ideal prisoners serve at least 87.2% of the sentence imposed. For example, on a year-and-a-day sentence, maximum good time credit is 47 days, not 54 days; on a 60-month sentence, the maximum good time credit is 235 days, instead of 270 days; on a 120-month sentence, the maximum good time credit 470 days, not 540 days. Until the BOP changes its method of calculation to mirror the method upon which the Sentencing Table is calibrated, every bottom-of-the-guideline sentence is higher than the United States Sentencing Commission intended based on its statistical methodology.

Now the seven days may not sound like much -- unless you are serving the time or waiting for a loved one. But the Supreme Court has found that a single day over-incarceration is significant for purposes of the right to counsel (Argersinger) and effective assistance of counsel (Glover). And the over-incarceration multiplies with every added year of the sentence. For all federal prisoners eligible for good time, the total time involved is over 34,000 years (188,410 prisoners x 7 days a year x 9.5 average sentence over a year and less than life ÷ 365 days in a year = 34,326 years). At $22,265.00 per year for non-capital incarceration expenditures, this amounts to over $764 million in taxpayer money that Congress did not intend or authorize to expend on incarceration for current prisoners, and over $66 million more for each new year.

But aside from waste, the institutionalized skewing of sentences to add actual time makes Guidelines sentences unreasonable. The statute calls for a sentence sufficient but not greater than necessary to serve the purposes of sentencing. 18 U.S.C. § 3553(a). So a sentence at the bottom of the guideline range is already 2.2% greater than the Sentencing Commission itself intended as presumptively reasonable under the unconstitutional pre-Booker mandatory guidelines system.

The simple answer to the argument about presumptive unreasonableness is that the BOP is misconstruing the statute. Three district courts have so found, as blogged here, but the circuits have thus far found the statute to be ambiguous and, instead of following the rule of lenity in construing an ambiguous penal statute, followed a rule of severity by following the BOP (not the Sentencing Commission) construction of the statute.

The construction of the good time credit statute is presently before the Supreme Court in three petitions for certiorari: O’Donald for the Third Circuit is linked here; Moreland for the Fifth Circuit is linked here; and Mujahid for the Ninth Circuit is linked here. Two petitions are supported by amicus briefs from the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, the National Association of Federal Defenders, and every Federal Public and Community Defender (linked here and here). The Supreme Court has requested that the Solicitor General respond to the petitions.

If the Supreme Court grants certiorari, the arguments are very strong for bringing the BOP’s interpretation of the statute into conformance with the Sentencing Commission’s construction (and the statute’s plain meaning). Throughout the Criminal Code and the Sentencing Guidelines, "term of imprisonment" unambiguously means the sentence imposed. Even if there were statutory ambiguity, the rule of lenity would require the more generous calculation of good time, rather than the application of the Executive Branch’s harsher interpretation.

But in the meantime, the reality is that our clients are receiving sentences, and serving actual time, longer than the data-driven matrix established by the Sentencing Commission. Sentences within the guideline range, especially at the bottom of the range, are categorically unreasonable. They are actually greater than the norm the Sentencing Commission thought it was setting. Rather than the presumption of reasonableness some courts have accorded the Guidelines, sentences calculated in reliance on defective data should be presumptively viewed as unreasonably harsh.

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

US v. Miqbel, No. 05-10033 (4-17-06). The 9th (Reinhardt) ventures into that long-negelcted area of sentencing for a supervised release (SR) revocation, and held that the court must give specific reasons tying sentence to the violation. The defendant had been convicted of a drug offense. On SR, he was found with small amounts of marijuana and meth, but had been doing well in counseling. The range was 3 to 9 mos, with a recommendation from probation and the gov't of 6 mos. The court gave 12 mos., and stated that after consideration of the guidelines, it was for "punishment." later, at a bail hearing, the court muse dit gave too short a shrift to the reasons, and tried to add on. On appeal, the 9th held that under Booker, the standard was whether the test was reasonable (joining the 2nd and 8th Circuits). Here, there were not sufficient reasons given for the sentence. Moreover, the reasons given -- "just punishment" -- is not an appropriate reasons. Section 3553(a) lists 10 factors to be considered din assessing a sentence. The revocation statute, 3583(e), incorporates 8 of the 10, but omits the need for "just punishment." Congress is assumed to know what it is doing (talk about legal fictions!), and an omission is interpreted as purposefully. Because just punishment is omitted, a court errs in using that as a factor. There might be a slight difference between "breach of trust" (an okayed factor) and "just punishment," but a distinction, albeit subtle, can be drawn. The sentence is vacated and remanded.

Congrats to AFPD Timothy Zindel, E.D. Ca., for the win.

US v. Thornton, No. 04-50226 (4-17-06). The 9th holds that a state statute that makes it a crime to drive with a BAC of .08 is similar to the state DUI (driving under impairment) and so the sentence counts for criminal history. The defendant tried to argue that it was a minor traffic offense, or public intoxication, and therefore shouldn't count. The 9th (Paez) held it was akin to driving while drunk, and must count. The upshot is not just another criminal history point, but safety valve preclusion.

In pdf format is the new Ninth Edition of our Introduction to Federal Sentencing (formerly An Introduction to Federal Guideline Sentencing). It may be freely copied and distributed to panel attorneys. It is also available for download at http://txw.fd.org/intro/.

Case o' The Week: Two Ninth Judges Lose Guidelines "Weight," Zavala & Booker

Two former district court judges (Tashima and Paez, left) fight for sentencing discretion – and against any “extra” weight to the guideline range – in a very good new Booker decision. United States v. Juan Antonio Zavala, __ F.3d. __, No. 05-30120, Slip. Op. 4013 (9th Cir. Apr. 11, 2006), available here.

Players: Per curiam (Tashima and Paez), dissent by Judge Fernandez.

Facts: Zavala got thirty years for meth; one offense level below the guideline range of life. Slip. op. at 4018. Over defense objection, the district court “start[ed] with the Guideline range and then work[ed] from that to determine whether there are facts in this case unique to this case which justify the Court in disregarding the Guideline range, or at least deviating from the Guideline range in some fashion.” Id.

Issue(s): Zavala’s “sole claim on appeal is that the district court violated Booker when it ‘presumed’ that the advisory Sentencing Guideline calculation set forth the proper range for sentencing.” Id. at 4016.

Held: “If a district court does show a kind of resistence and, instead, makes the Guideline calculation the presumptive sentence, it will commit legal error by misapplying § 3553(a), which now makes the Guideline a, but only a, factor to be considered. It will fail to embrace the discretion that it has, which is to reach the right answer to the sentencing decision rather than a merely plausible answer.” Id. at 4024 (emphasis in original). “We vacate the sentence and remand.” Id. at 4016.

Of Note: What if a judge gets it wrong? What if a Booker sentence is actually less “just” than the guideline range? Paez – or Tashima – nails the reality of judicial discretion with this thoughtful disclaimer: “We are neither beasts nor angels, and our power to do good always entails the possibility that something ill will result.” Id. at 4024. Some literate member of the bench has read C.S. Lewis: “We were made to be neither cerebral men nor visceral men, but Men. Not beasts nor angels but Men - things at once rational and animal.” C.S. Lewis, Afterword to the Third Edition, “The Pilgrim's Regress: An Allegorical Apology for Christianity, Reason and Romanticism.” (Grand Rapids: Wm. B. Eerdmans, 1992).

How to Use: The Ninth is finally really wrestling with Booker. This decision is chock-o-block with well-reasoned analysis on how a district court judge is to use her sentencing discretion. The panel explains that while a judge can use the guidelines as a “starting point,” the guidelines are entitled to no more weight than any other § 3553(a) factor. Id. at 4022. To give the guidelines extra weight is “much more than a mere consult for advice, and the Guidelines are to be no more than that.” Id. “Simply put, a presumption at the district court would give undue weight to the Guidelines. The dangers averted by declaring them to be merely advisory would become recrudescent.” Id. at 4023.

[Ed. note: Recrudescent: adj., the revival of an unfortunate situation after a period of abatement. Judges Paez and Tashima are both plain-spoken jurists. Is “recrudescent” a zing at the thesaurus-thumping Fernandez?]. Compare Zavala, slip op. at 4027 (Fernandez, J., dissenting) (“Whatever other readers of the opinion might think of it, whether they consider its reasoning eximious or exiguous, I deem it extraneous.”) [Eximious: adj., select; choice; hence, extraordinary, excellent. Exiguous: adj., extremely scanty.]

For Further Reading: As fascinating as these Ninth Booker skirmishes may be, Congress is unamused. As previously noted in the Mix memo, post-Booker sentences have gone up. See post here. Remarkably, House Judiciary Chair Sensenbrenner still complains “the data is now in and the picture is not pretty.” See press release here. He opines, “The Sentencing Commission’s report shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act, and jeopardized the basic precept of our federal court system that all defendants should be treated equally under the law.” Id.

Cross your fingers for further Immigration distractions . . . .

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

US v. Johnson, No. 02-50618 (4-13-06). This was a bank robbery scheme, where the defendant stayed in the getaway car while his codefendants robbed the bank. As usual in crimes, unplanned things occurred, and a teller ended up being hurt, guns were brandished and used, and there was a high speed chase that ended badly for the robbers. The defendant as charged with conspiracy, armed bank robbery, and a 924(c). The jury convicted on conspiracy, returned a lesser of unarmed bank robbery, and hung on 924(c). The 9th held that a Rule 29 on the gun count was not mandated, and that the gov't was not barred from retrying. The sentence was remanded under Ameline, and to a different judge as the original jurist had retired. The 9th stated that in resentencing, the court could consider the whole range of conduct (hint hint about the gun).

Raley v. Ylst, No. 04-99008 (4-14-06). The 9th affirms denial of a capital petitioner's claims. This was a kidnap, sexual abuse, torture, and murder of one victim and an assault, kidnap and sexual abuse of another. Both victims were held, sexual assaulted, and physically beaten and stabbed. They were thrown down a ravine. One lived and the other died at the hospital. Petitioner confessed, expressed remorse, and had a causation claim that it was the hospital's negligence that resulted in death. In his federal petition, Petitioner argued IAC, jury misconduct, and Brady. The focus of the IAC was the decision not to present any of the three mental health experts that evaluated the petitioner. Each one had a different evaluation. The 9th held that the decision not to present mental health experts did not violate Strickland because it was a strategic decision. Counsel relied upon lay testimony for childhood abuse and possible emotional difficulties. The first jury hung in the penalty phase with this decision. Co-counsel tried the second penalty phase, and went back to the experts, reinterviewed some of them, and provided additional information. The decision not to present was neither ineffective nor prejudicial. The 9th brushed off the jury discussions of the petitioner's failure to testify, whether LWOP meant LWOP, and the costs of LWOP. The 9th dismissively stated that these did not count as extrinsic influences, but were part of the trial and deliberations. The 9th acknowledged that the discussion of testifying violated the court's instructions, the 9th refused to act on these errors. What happens in the jury deliberations stays in the jury deliberations, holds the 9th, even if it tramples constitutional rights. The Brady claim was found to be meritless because the petitioner had access to the information (the medication he was taking in jail).

US v. Clark, No. 04-30249 (1-26-06). In a case of first impression, the 9th makes sure that Congress's constitutional reach is the same as its regulatory grasp of foreign commercial sex crimes under the Constitution's "Foreign Commerce Clause." The defendant here was a 71 year old veteran who traveled to Cambodia and caught having sex for money with two minor boys.

The 9th (McKeown and Hug) held in an issue of first impressionunder the PROTECT ACT that the statute's requirements of (1) travel in foreign commerce; and (2) participation in a commercial transaction while abroad satisfies the Constitution's foreign commerce to a "constitutionally adequate degree." The 9th focused on his explicit foreign travel and then the commercial illicit sex act two months after. In dissent, Ferguson cautions that "The Constitution cannot be interpreted according to the principle that the ends justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it." Indeed, Ferguson is alarmed at the expansiveness of the opinion's test, and the abandonment of the channels of commerce analysis that is sued for domestic cases.

Although this case is limited to commercial sex crimes, the PROTECT ACT also involves noncommercial sex crimes. Are these acts sex acts constitutionally unprotected? One can also envision other acts (abortion in a post-Roe world?) that may be involved.The 9th commended AFPD Michael Filipovic of W.D. Wa. (Seattle) for his "excellent and comprehensive briefing of this matter."

US v. Bhagat, No. 03-10029 (2-8-06). The gov't's position is "What's a theory of prosecution, he's guilty of something" Okay, that may be a bit broad, but not too far off the mark in this insider trading case. Defendant worked for a corporation that closed a big deal for the X-box with Microsoft. This had been in the rumor mill. The deal closed late Sunday night. On Monday, an e-mail went out office wide saying that the news was confidential, and don't buy stock, and cancel all open orders. There was a stock black-out for several days. Defendant came into work mid-morning on Monday. He purchased a large number of company shares. He said that he didn't read the company e-mails until early that afternoon, as was his practice (he had a habit of reading e-mail late). He purchased the shares at 12:23 pm and supposedly read his e-mail at 1:00 pm. When he did read the e-mail, he sought to cancel the trade, but was told it was too late. He couldn't remember the name of the trading company nor any details of the broker he talked to. He had traded in tech stocks before. He also didn't try to stop the trade subsequently. he sold the stock four days later for a substantial profit. The gov't reasoned that any reasonable person would read the e-mail when he or she first came in (Ed. note: well, at least the 9th Cir. opinions!). Defendant said he didn't on the stand, and the gov't then argued the "office was abuzz" theory. The sale was big news and so everyone was talking about it. The indictment though only alleged that he read the e-mails. On appeal, he argued variance. The indictment alleged that he found out from the e-mails. The 9th found it wasn't a variance from the facts because the argument was put forth during cross examination as impeachment, and the inference that he found out about it didn't vary from the general facts. The gov't only argued "abuzz" in passing, and mostly to imply that the defendant's interest would be piqued enough to have read the e-mail. Dissenting. Tashima argued that there was no direct evidence he had read the e-mails, and that the "abuzz" theory differed significantly from the concrete indictment that he had actually read the e-mail and so was put on notice. Defendant was convicted on other charges as well, including tipping and obstructing an agency's investigation (SEC). And what did the defendant gain? Oh yes, $48,000 profit.

US v. Williams, No. 04-50182 (1-30-06). The 9th dances with the 5th amend. and Seibert. The defendant here was interrogated about passport fraud. he was sin custody but didn't receive his Miranda warnings. After he confessed, he was given his warnings, and confessed again. The court denied the motion to suppress under Elstad, and then, while on appeal, Seibert (the two-step plurality decision from the Supremes) came down. As recounted in Steve Kalar's "case of the Week" memo, Seibert's fractured plurality resulted in no real bright line test. The four member plurality and the four dissenters all agreed that Kennedy's opinion focusing on the subjective intent of the officer and then moving to an objective test didn't and couldn't work. The dissenters wanted to stick with Elstad. The plurality looked at a totality of circumstances test to see if the goal of Miranda could be achieved in a two step approach (confession and then warnings). What to do here? The 9th talks about how to read plurality with a concurrence, and fastened on the most narrow ground. The problem is that Kennedy has his own subjective test that no one liked. The 9th then seemingly embraced a narrow reading of the plurality and Kennedy. The 9th wrote that "we 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 circumstance -- did not effectively apprise the suspect of his rights. Although this seems strange -- deliberate usually means intent -- the 9th actually defines deliberate as referring to objective evidence (1200). The 9th then emphasizes that once an officer detains a suspect and questions him, "there is rarely, if ever, a legitimate reason to delay giving a Miranda warning until after the suspect has confessed. Rather, the "most plausible reason for delay is an illegitimate one...." The 9th therefore fashions a test that is pretty good for the defense and comports with Miranda's goals: "In sum, when a law enforcement officer interrogates a suspect but does not give a Miranda warning until after obtaining a confession or an incriminating statement, a court must determine whether the warning was deliberately withheld. The court should consider any objective evidence or available expressions of subjective intent suggesting that the officer acted deliberately to undermine and obscure the warning's meaning and effect." (1202). The 9th suggests that totality of circumstances, including the same actors, the compressed time, and no break, all weigh toward deliberate action. The case is remanded for the district court to apply the test and Seibert.Congrats to AFPD Carl Gunn of Los Angeles for the win.

US v. Ye, 05-10073 (2-2-06). In an Economic Espionage Act case, the court ordered deposition of certain witnesses. The court's rationale was for discovery, and that it would be more convenient for trial and counsel.

The prosecutors objected, and appealed. the 9th found no appellate jurisdiction as it was not a final order, but did find mandamus, given the various balancing factors. The 9th granted the writ, and ordered relief, because the court's order erred in that Fed R Crim P 15 does not allow for depositions for discovery, and that neither fairness nor efficiency were the exceptional circumstances that would trigger Rule 15. The order also ran afoul of the Jencks Act.

US v. Blandin, No. 05-10316 (2-1-06). Defendant walked away from a halfway house because, after failing a drug case, he "wanted to enjoy himself" before being arrested. He was found in a couple days trespassing on property, and while the owner called the police, he waited for the arresting officers. At sentencing, he argued for a downward adjustment for "voluntary return" because he had formed the subjective intent to return within 24 hours before he was drugged by a prostitute. He also argued that he waited for the officers and didn't resist nor flee.
The 9th found this wasn't enough. It considered "voluntary return" to mean actually going back, and cited cases from other circuits where no such adjustment was given for waiting for arrest nor for even arranging a ride to return. Here, defendant only surrendered when he faced the prospect of arrest, and that wasn't good enough. Moreover, he was arrested for trespassing and the cooperation was as a result.4. US v. Russell, No. 04-10681 (1-30-06). Thew defendant, also known as "Wild Bill," shot himself in the foot more ways than one. First, he literally shot himself in the foot. He called 911, and used a different name (Hines). He then called back and gave his true name. He also said that his girlfriend would "kill him" (probably an overstatement). In the confusion, the police were possibly expecting two wounded men, and others in the house, and no knowledge . The police arrived, and met the defendant. Officers then swept the house and found the gun. Defendant was charged as being a felon in possession.

He argued for suppression of the weapon because the police conducted a warrantless search.

The gov't argued for an emergency exception. The court agreed. The 9th found it too. The 9th listed the factors for the emergency doctrine: (1) the police have reasonable grounds that there is an emergency at hand and a need for their immediate assistance; (2) the search is not motivated by an intent to arrest and seize evidence; there must be a connection between the emergency and the place. The 9th found these conditions were met. Dissenting, Thomas argued that the confusion had been cleared up when the police arrived because the defendant was outside, and the situation could be apprised. The emergency doctrine must be very narrowly drawn and only allowed when there is a true crisis. The fact that the police want to search cannot be used as justification. Here, once the emergency had been taken care of, the police must then follow police procedures.

Goldyn v. Hayes, No. 04-17338 (2-1-06). Defendant served 12 years for acts that the 9th found were not a crime. Defendant was issued a checking account, a line of credit and a check guarantee card by a bank in Nevada. The defendant, with a history of fraud convictions, soon exhausted her line of credit. She kept on writing checks. The bank kept on honoring the checks, because of the guarantee card. The 9th (Kozinski) looked at the guarantee, and the state statute for drawing checks on insufficient funds, and held that the defendant was writing checks beyond her credit line, BUT that the bank had guaranteed them, and any problem was between the bank and defendant. She had been convicted and got five life sentences, and after serving 12 years, was placed on lifetime probation. The 9th ordered her immediate release, and chided the state courts for missing this obvious connection, and dropped a footnote that stated it wasn't dealing with other issues, but those cast doubt on the state's commitment to justice (note 6).

Congrats to AFPD Paul Turner of Las Vegas, D. Nev.7. US v. Napier, No. 04-10249 (2-7-06).

Defendant sought to challenge a sealed attachment to a search warrant for purposes of a Franks hearing. The gov't opposed, arguing that the informant's identity could not be revealed because of safety concerns and ongoing investigations. Defendant entered a conditional plea, and appealed the denial of his request. he argued that he hadn't sold drugs in the two months stated in the redacted affidavit provided. The 9th held that the right to a Franks hearing (challenging untrue assertions forming the basis of probable cause) is not absolute, but must be balanced by competing rights, one such being safety and ongoing investigations. The balance must look at the concerns, dangers, and rights. here, the balance was against the defendant as this wasn't a trial, but a suppression motion, with a more relaxed standard, and that the facts alleged in Franks didn't call into question the validity of the warrant.8.. Meanwhile, back at the ranch, in US v. Guerraro-Velasquez, which had that footnote by Bybee stating that a guideline sentence was presumptively reasonable, it vanished on rehearing. A small consolation for AFPD Ben Hernandez, E.D. Wa., that is important for the greater good.

FOR PUBLICATIONUNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 05-30066U NITED S TATES OF A MERICA ,
Plaintiff-Appellant,A DOLFO G UERRERO -V ELASQUEZ ,
Defendant-Appellee.

ORDER AND AMENDED OPINION
Appeal from the United States District Courtfor the Eastern District of Washington
Wm. Fremming Nielsen, Senior Judge, Presiding
Submitted November 18, 2005
*
Seattle, WashingtonFiled January 19, 2006
Amended February 7, 2006
Before: David R. Hansen,
**
William A. Fletcher, andJay S. Bybee, Circuit Judges.Opinion by Judge Bybee
*
This panel unanimously finds this case suitable for decision without oral argument.
See Fed. R. App. P. 34(a)(2).**

The Honorable David R. Hansen, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.1367COUNSELK. Jill Bolton and James A. McDevitt, United States Attorney’s Office, Yakima, Washington, for the plaintiff-appellant. Alex B. Hernandez, III, Federal Defenders of Eastern Washington and Idaho, Yakima, Washington, for the defendantappellee.

ORDER
The opinion, filed January 19, 2006, slip opinion 773, and appearing at ___ F.3d ___ (9th Cir. 2006), is amended as follows:1. At slip op. 777, footnote 1, line 8; ___ F.3d at ___, footnote 1, line ___, delete, “We also note that, on appellate review, a sentence suggested by the guidelines is presumptively reasonable.”2. At slip op. 776, line 2; ___ F.3d at ___, line ___, change the counsel listing for plaintiff-appellant to read, “K. Jill Bolton and James A. McDevitt, United States Attorney’sOffice, Yakima, Washington, for the plaintiff-appellant.”With the filing of the amended opinion, Appellant’s pendingMotion to Modify Decision is DENIED as moot, withoutprejudice to filing a petition for rehearing and/or rehearing enbanc. See 9th Cir. G.O. 5.3(a).

Smith v. Mitchell, No. 04-55831 (2-9-06). The 9th grants a petition and reverses a state conviction for supposed assault on a child resulting in death. The petitioner was the grandmother, and caregiver, of a premature baby boy. She discovered the child dead, with a little bleeding from a nostril. There were old subdural injuries. The state argued that the grandmother shook the baby so hard that the brain stem sheared and death was instantaneous and that was the reason there was no internal bleeding, bruising, retinal hemorrhages, abrasions, and so forth. The defense expert witnesses described this "cause of death" as "fantasy" and testified that the cause of death was mostly SID: premature baby boys have a higher incidence, they do have bleeding into the brain, and a whole host of other factors. The grandmother had no prior histories of abuse. The 9th held that no rational trier of fact could have found petitioner guilty beyond a reasonable doubt. Absence of evidence is not evidence beyond a reasonable doubt. AEDPA did not bar such a holding, as the state courts unreasonably applied Jackson. Scary case given that a jury somehow convicted, and then the state trial court, state appellate courts, state post-conviction, and a federal magistrate and federal district court all affirmed the conviction. The 9th's panel was Pregerson, Canby and Reed, D.J., with Canby writing.

US v. Lynch, No. 02-30216 (2-10-06)(en banc). In an en banc per curiam decision, the 9th holds that in Hobbs Act jurisdiction can be shown by a direct effect or an individual effect on interstate commerce. In the case of an indirect effect, then the test as developed in Collins, which focuses on the depletion of assets or some other impact. Here, the defendant lured the victim from Nevada to Montana, used a weapon to kill him, stole his vehicle,took his money, used his credit cards, and smoked his dope. There was a direct impact. The en banc court resolved the tension between whether the Collins test had to be used in both cases, and it does not. The defendant argued that law of the case controlled in regards to Collins, or that he should get a new trial with instructions. Tthe 9th found the evidence more than sufficient for a direct impact and that the law of the case doctrine did not apply. The 9th also dealt with other issues.

The most significant, and important, is the sentencing cross reference to murder. The 9th pheld the district court use of the cross reference despite the fact that the jury was not unanimous on whether the defendant was the trigger man in the killing. The district court nonetheless found by clear and convincing evidence that he had participated in the murder and therefore the cross reference applied. The 9th ratified the standard to use as CLEAR AND CONVICING because of the disproportionate impact of the cross reference. From a defense standpoint, this is good, because it is not the across the board preponderance of evidence standard that there were some references to in previous cases. Hopper, 177 F.3d 824 (9th Cir. 1999).

US v. Rutledge, No. 05-10060 (2-14-06). The 9th vacates a preliminary injunction seizing the assets of a nonprofit corporation. The 9th finds that the gov't failed to show that the assets of the corporation were indeed the nefarious proceeds of defendant's supposed mail and wire fraud activities.

US v. Knows His Gun, No. 04-30302 (2-15-06). No, this is not a felon in possession case. Rather, and unfortunately, it is an important sentencing case regarding those sentences that occurred after Blakely but before Booker, in which the district court imposed an alternate sentence that anticipated a non-mandatory guideline outcome. Here, defendant was convicted of agg sex assault. The court found several sentencing enhancements. The court rejected a Blakely challenge, holding that the enhancements had been admitted by the defendant. As to a challenge as to the constitutionality of the guidelines, the court imposed an alternate sentence, using the guidelines as "providing useful instruction" on the appropriate sentence, even though it did not have the force of law. The court further explained that the guidelines "carefully and thoughtfully developed" sentencing over the years (Ed note: how gullible and naive courts can be!) and that sentences are generally just. The alternate sentence -- surprise surprise -- was the same as the guideline sentence. On appeal, the 9th considered the issue of an alternate sentence. The 7th circuit found that the 6th amend. wasn't violated if a court imposed an alternate sentence that accurately predicted the outcome of Booker. The 9th joined that reasoning, holding "that a sentence does not contain constitutional Booker error if the district court provided an alternative sentence, or a rationale for the primary sentence, that correctly anticipated the holding of Booker and exercised discretion in imposing sentence within the statutory range." The district court here correctly considered that the guidelines could be nonbinding, and so issued a discretionary sentence that apparently considered the 3553 factors.

Defendant failed to object to the fact that the district court did not adequately consider the 3553 factors in imposing sentence, and this is reviewed for plain error. The 9th found no plain error because the district court seemingly considered the 3553 factors in explaining the sentence, and the weighing factors. The court did in fact sentence with guidance, the guidance being the 3553 factors. The 9th also found that the right to allocution was provided in the alternate sentence because the defendant was aware that such an alternate sentence was going to be imposed. This case though only concerns the "window" of alternate sentences between Blakely and Booker, and depends heavily on what exactly the district court predicted, how accurate it was, and what fcators it said it considered, and whether it was guided.

US v. Chief, No. 05-30214 (2-17-06). In this agg sex abuse appeal, defendant argued that the statute of limitations (S/L) barred his prosecution and that the court erred in restricting evidence. The 9th affirmed. The offense took place in 1997. The indictment came down in 2004. In between, the S/L was extended in 2003. Defendant cleverly argued that the new S/L didn't have a savings clause, which meant that the S/L in effect in 1997 (prosecution until a child's 25th birthday if the S/L would have elapsed), defaulted to a five year S/L. The 9th analyzed the claim, but noted that the S/L was extended, and that the S/L in effect in 1997 would have not have been triggered even when this indictment had been handed down. There was no "gap." As such, tehre was no ex post facto issue. The 9th also held that the preclusion of evidence was harmless. The victim's mother testified for the defendant that he daughter was a habitual liar. The defendant wanted to get in other testimony about delinquency and possible sexual assault in a facility. This was barred. The 9th found this harmless because the mother called her daughter a liar. The 9th also said that there was strong corroboration because of the defendant's confession (always the one damning fact). Still, the testimony would have provided an opportunity to explain motive in that the victim told about the sexual abuse to prevent being moved to another facility. The 9th notes that the court's ruling under 403 is for abuse, but when the court fails to do a balancing, it is reviewed under de novo (a fact to keep in mind).

Landrigan v. Schriro, No. 00-99011 (3-8-06)(en banc). The 9th (Hawkins) remands a death case for an evidentiary hearing on sentencing IAC. The focus was on the failure of trial counsel to conduct thorough sentencing mitigation. The petitioner had supposedly waived mitigation, but a careful review of the record indicates that the petitioner waived the two witnesses present (relatives). There was a plethora of other mitigation -- horrific child abuse and abandonment and severe biological and physical ailments. The 9th also emphasized that the Supremes' recent opinions had stressed the obligation to conduct far-reaching mitigation, and that was simply not done in this case. In dissent, Bea and Callahan recognized the ineffectiveness, but given the facts of this case (brutal gay murder, a prior murder, drug abuse, antisocial etc), any ineffectiveness was harmless.

Valencia v. Gonzales, No. 03-72028 (3-6-06). The 9th takes a Taylor categorical approach to Cal. Penal Code 261.5(c), which is the statutory rape offense. The code does not require force, but penalizes as a misdemeanor or felony sexual intercourse with a minor three years younger than the perpetrator. The fact that there is no force requirement is key to the 9th finding that under Taylor, it is not categorically an agg felony. The example is a 17 year old adolescent could have consensual sex and it not be violent, nor the fact that perpetrator is older may not implicate, on the face, physical or emotional coercion. Using a modified Shepard approach, there were no facts here to indicate that the victim was unusually young, or that force was used.

US v. Chen, No. 05-10108 (3-2-06). An INS agent questioned the defendant who was being held on a deportation warrant. The agent suspected a third party (Li) of running a smuggling ring, and wanted to get information. No Miranda warnings were given. Defendant was eventually charged with perjury for statements he made as to how he got to Guam (supposedly jumped ship). The district court had suppressed, and the gov't took this up. The 9th affirmed the suppression, holding that the questioning of the defendant was not solely for administrative purposes, but was done so in a criminal investigation frame of mind. The agent suspected Li of smuggling, thought defendant was suspicious, and wanted to put pressure. The 9th also found that the potential for a 1325 illegal entry charge was there. The 9th comes very close to holding that all 1325 possible cases get Miranda warnings, but it held back at the last moment, stressing that the heightened focus on defendant here compelled the giving of Miranda.The 9th notes, but does not discuss, that the defendnat had counsel at the time of the questioning regarding, apparently, the immigration matter. The attorney was never called.

Congrats to FPD John Gorman of D. Guam.

US v Frank, No. 04-10343 (3-2-06). The 9th decides that the bank robber who utters the phrase "I have a gun" deserves, in this case, a two level enhancement for threat of death. the 9th declines to adopt a per so rule that it will always constitute a threat of death, because there might be unusual circumstances that mitigate otherwise. The 9th though made clear that in most, but not all, circumstances, the phrase "I have a gun" ge s the enhancement. The test is whether a reasonable victim would have had fear instilled, and this requires the use of an objective victim standard and the exact words or tone or sense of urgency uttered by the defendant. The 9th joins the others circuits that have so held (2nd, 4th, 5th, 6th, 7th, 8th, 10th, and 11th).

US v. Bear, No. 04-50161 (2-24-06). The defendant worked as a CI for a renegade LAPD officer. She mounted a defense that she informed the officer of her drug activities ("lets make a deal!") and so was acting pursuant to public authority. She testified to this,and argued this, but never asked for a public authority instruction. Plain error. The 9th though finds that the court should have, sua sponte, given such an instruction because it was so obvious what her defense was, the jury needed the guidance. The court just couldn't sit back and not instruct. The 9th stressed that "[w]hen a defendnat actually presents and relies upon a theory of the defense at trial, the judge must instruct the jury on that theory even where such an instruction is not requested." The gov't responded to her defense, and the court had the 9th Cir. Model Instruction at hand. The error also affected her substantive rights, and caused the verdict to be in question. The 9th also found that although the gov't stipulated that it wouldn't call the LAPD detective as a witness, it didn't violate the stip to call him in rebuttal.

US v. Lopez-Perera, No. 05-50102 (2-21-06). Illegal aliens can't have firearms, but has an alien illegally entered with a gun if he is stopped at the POE. The defendant here drove up in a van, was sent to secondary, and a firearm was found in the vehicle. At the bench trial, the defendant argued that under 18 USC 922(g)(5)(A), an illegal alien must have entered (found or come into) rather than just approach or come to the country. Congress left this unclear in the statute. The 9th looked at the agency interpretations, and the highly technical terms of immigration, and decided that the defendant had to have entered and not be outside the country or under the official restraint doctrine. The gov't argued that "official restraint" doctrine only applies to illegal reentries, but the 9th held otherwise. The 9th stressed that Congress knows the difference between "comes to" and "into" and cited various other statutes.

The case is remanded for a resentencing.

US v. Morales-Perez, No. 05-10115 (2-22-06). Is "purchase for sale" drug trafficking? The 9th said "no" under Calif. Health & safety Code 11351.5. The defendant here was convicted of illegal reentry of a deported alien. His sentence is enhanced for a prior agg felony because the court found that distribution of drugs include purchasing for sale. The 9th (Goodwin) disagreed. Looking at the literal terms of the statute, the 9th gave force to the state's use of "purchase," differentiating it from the disjunctive "possession for sale." The 9th adopts the statutory canon to give effect to every clause and word, and here it gives a separate meaning to "possession" and to "purchase." Purchase of a drug for sale moreover is not the same as possession for sale, and "purchase" falls outside the Guidelines' definition of drug trafficking (it doesn't list purchase in 2L1.2). On remand a modified categorical approach may be used under Taylor and Shepard. Of note is the fact that O'Scannlain joined Goodwin.Tallman stridently dissented, arguing that the spirit of the enhancement sought to ratchet up the penalties for drug sales, and purchasing for sale is but one variant. Tallman is aghast at the fine distinction between words, and just because the state has a statute that provides various ways to commit an offense shouldn't render the statute's efforts overly broad. Purchase, to Tallman, must involve a possession, actual or constructive.Of course, under the holding, the case is remanded for resentencing under the advisory guidelines, so the defendant may have won the battle but lost the sentencing war
Moreover, the gov't is able to use a modified categorical approach. This decision also conflicts with the approaches taken by other circuits in interpreting similar state statutory language. The Supremes might be interested.

Congrats to AFPD Rene Valladares of D. Nev (Las Vegas) for the win. All of our defendants with prior California 11351 purchase conviction thank him.

US v. Bad Marriage, No. 05-30149 (2-22-06). The defendant's name smacks of a sobriquet from a morality play. He is not a nice guy, getting out from tribal jail to attend an AA meeting, but ending up with his girlfriend who he savagely assaulted and possibly raped. he plead to assault/serious bodily injury. The court, in his sentencing pre-Booker, departed upward based on under-representation of criminal history. The 9th remanded, holding that there were no facts that supported an upward departure, and that he should be sentenced within the guideline range. Booker then came down. the district court then resentenced him to the same term. In affirming the sentence, the 9th reasoned that the court took into account the 3553 factors, and that the guidelines didn't address the harm, or the danger of the individual, sufficiently, or even appropriately. the 9th also held that such a sentence didn't run afoul of the mandate because the guidelines were rendered advisory. The 9th finally just stated that such a sentence was reasonable. In a vigorous and vehement dissent, Berzon argued that the district court violated the mandate, which instructed the court to sentence within a guideline range. Moreover, the previous panel had stated that there were no facts to warrant a higher sentence, and this recalibration was wrong. Berzon would also apply the law of the case doctrine.This is an interesting sentencing case. yes, the defendant got a higher sentence under Booker, but the reasons that the court used -- that he was a dangerous man and needed prison -- can just as easily be flipped to argue that a defendant shouldn't be sent to prison because it isn't appropriate for his offense, or the other 3553 factors. Indeed, the court sets out a framework for such arguments because of the court's disdain for the guidelines. If the court can brush aside the guidelines because it obviously didn't deal with the savagery of the attack, then the guidelines should just as simply be ignored when an offense is not of the "heartland" variety.

This analysis harkens back to the in/out guideline analysis advocated by many commentators in the early days of the Guidelines Mandatory Regime (see 1 Fed Sent Rep. 356 (1989), 5 Fed Sent Rep. 211 (1993), 8 Fed Sent Rep. 110 (1999)).4. US v. Hagege, No. 04-50425 (2-22-06).

The court's admission of foreign bank records did not violate the Confrontation Clause. The records at issue here, in this fraud case, were business records that were not testimonial. The 9th also held that the statute of limitations was not violated in the time it took to get the foreign records. The gov't also didn't cause a mistrial because a gov't witness blurted out that the defendant was involved in the porno business. The case was remanded for resentencing for the district court to take a fresh look at relevant facts.

Jensen v. Plilier, No. 04-55840 (3-9-06). Petitioner raises a Crawford issue. A declarant told his attorney that he had helped murder someone. The declarant was released and then subsequently murdered by petitioner. At trial, attorney testified to conversation. Deceased declarant's mother, acting as guardian ad lietum, waived attorney-client privilege. Petitioner argues that the testimony violated his right to confront under Crawford. the 9th finds it doesn't because the statements were not a result of interrogation or questioning, and hence not testimonial. The declarant had declared that he would never testify. Thus, this doesn't reach into Crawford's ambit of state actors or with an expectation of testimony. The 9th also found that even if Roberts applied, the state courts had found this to be reliable.

US v. Gourde, No. 03-30262 (3-9-06)(en banc). This is an important 4th amend. computer search case. The 9th, en banc, considers the probable cause to search a computer for child pornography in the context of an Internet website known as "Lolitagurls.com," that admittedly displayed child pornography. The 9th found probable cause because, essentially, the website had child pornography, evidence was presented on child pornographers, and the defendant here had access and wanted access to those images. The defendant had become a member of this group, and the membership was intentional and ongoing. The defendant could download the images if he wanted. This met the "fair probability" test that there was contraband. Employing the Gates' "totality of circumstances" test -- practicality, common sense, fluid and nontechnical conception of probable cause, and deference to the magistrate -- the search warrant was upheld.

The 9th characterizes defendant's argument against probable cause as transforming the standard to "near certainty." The dissents -- Reinhardt and Kleinfeld -- both see a laxness to 4th amendment analysis in this digital context, and because of the involvement of child pornography. Both of them point out the lack of any evidence that membership meant possession. Kleinfeld is especially acute as to the dangers of "membership" in a website that might be used for research (Loilta). Moreover, both dissents value the privacy of the computer.

Kleinfeld interestingly parades possible horribles of what may lay secretly in a computer (always interesting where examples come from).

US v. Ogles, No. 03-10439 (3-10-06)(en banc). In yet another en banc decision (three in the past two days), the 9th upholds a judgment of acquittal on a Fed. R. Crim. P. 29 motion. That's the easy p[art. Lets deal with it first. The defendant was charged in Count One under 922(b)(3) and 924(a)(1)(D) with selling firearms to a non-state resident as a licensed firearm dealer. He was charged in Count Two under 922(a)(1)(A) and 924(a)(1)(D) as dealing in firearms without a license. The defendant, a California licensed dealer, had sold and given a firearm to an Arizona resident at an Arizona gun show. At trial, the court granted a Rule 29 acquittal on Count Two, and the jury convicted don Count One. The gov't argued on appeal the acquittal was on technical terms because of the confusion with Count One (the defendant could be either/or). The 9th held that the double jeopardy clause protects the defendant in an acquittal, and here the defendant had asked for one. he did not ask for another remedy. like a dismissal for delay or for another reason. The acquittal was clear and that's the end of the story.It is not the end of the opinion. There is a question whether the licensed dealer's behavior is non-location specific.

That is, a licensed dealer is held to actions even if he is outside the state he has the license from.

It seems that the gov't, at oral argument, had said that it was mistaken to prosecute on both counts. The gov't apparently argued that the defendant's conduct was properly understood as being "unlicensed". The gov't argued further that if the acquittal was reversed and remanded, then it would dismiss the conviction under Count One. The ambiguity is that the dealer's conduct, out of state, should be considered as unlicensed, since the license was for the state that the dealer was not in. The 9th notes the strangeness of the gov't's argument, but deems the concession a non-concession because of contingencies placed on it (if....then). The defendant also didn't raise the statutory mismatch on appeal. The gov't's position was only announced at argument. The 9th adopted the Sixth Circuit's interpretation that a licensed dealer is not location specific for bad transfer. Any remedy for an ambiguity seen by the gov't should be addressed to Congress. In dissent, Reinhardt is aghast at the government's position, taking it to task for the inconsistent positions, and for acknowledging, tacitly or implicitly, that the convicted behavior should be construed as behavior under count two. Reinhardt doesn't feel the court has to take a position on the interpretation, but could take the gov't had its word that it goofed, and vacate. Other judges concurred (Berson, Pregerson and Fisher). They also share Reinhardt's befuddlement at the gov't's position. These dissenters though feel that the gov't could test the ambiguity of a complicated statute by having two interpretations (what's a liberty interest when faced with statutory sloppiness). The concurrence would not joining Part One (discussing the ambiguities) because the issue was not raised. The concurrence recognizes a gap with such an interpretation (a licensed dealer selling outside his home state but to a resident of his home state). They join in the rest of the opinion and the judgment.

US v. Novak, No. 04-55838 (3-23-06). For every statutory construction canon, there is an equally compelling canon asserting the opposite. This comes into play where the 9th finds that the Mandatory Victim Restitution Act (MVRA) trumps the anti-alienation provision in ERISA, and permits garnishment of pension. The 9th recognizes that the Supremes in Guidry and the 9th in Jackson had recognized that ERISA permits no garnishment unless specifically directed by Congress. The 9th finds though that the MVRA, with language that its provisions won't be trumped by other statutes, trumped ERISA's antialienation. There are broad social policy reasons, and the 9th places the MVRA on the same level as tax collection under IRS. Jackson, a prior precedent, had failed to mention or note the MVRA, and so the 9th sidesteps its prohibition against garnishment for restitution. Dissenting, B. Fletcher argues that a general statement of "no exception" in MVRA does not trump the specific language of ERISA, where the Supremes had indicated that no garnishment takes place unless Congress makes it abundantly clear. This wasn't done here. Moreover, Jackson sets a broad rule against garnishment, and this panel can't just excuse it by stating that it failed to note the MVRA.

US v. Ligon, No. 04-10495 (3-21-06). This is a theft of gov't property, where the gov't forgot to prove "market value." The defendant was charged with taking Native American petroglyphs. He had them in his front yard, admitted he took them without permission, in the dark of night, and did so to "save" them from destruction by possible construction going on near the gov't land. the gov't charged removing archeological resources under 16 USC 470ee, and as a throwaway, theft of gov't property under 18 USC 641. The gov't submitted evidence as to their archeological value, but didn't submit evidence as to their market value. The jury acquitted on the archeological count, and convicted on the theft count. The 9th reversed, because the archeological value is not the same, and cannot be transferred, to the market value required under 641. That section requires a commercial value, even in an illegal market, or something similar. the 9th recognizes that the guidelines cross-reference archeological value, and use that in the setting of a penalty, but it can't trump the statute.

US v. Williams, No. 05-30071 (3-21-06). This is a sad case. The defendant was a financial advisor who took advantage of an unsophisticated improvised sheepherder who got an inheritance. The defendant had the victim sign a power of attorney, transferred funds, and the defendant ended up in a condo in Belize. he eventually was charged, and convicted. On appeal, he argues that under mail and wire fraud, 18 USC 1341 and 1343, the "intangible rights" theory of good gov't or good services does not apply to private sector fraud. This draws support from the Mcnally line of cases. the 9th holds though that where there is some sort of duty, and here there was a fiduciary one, then the "intangible rights" theory applies to private sector fraud.

The 9th joins several other circuits that have so held. the key is that intangible rights to good service requires some sort of fiduciary duty. The 9th found the other argument challenging the foreign transportation of money not convincing, holding that causing money to be transported is good enough. the 9th also affirmed the sentence against challenges.3. US v. Ropdriguez-Rodriguez, No. 05-50202 (3-11-06). the 9th affirms a sentence as reasonable in a 1326 case.
the defendant here had a compelling reason to return (a badly injured son), but also bad facts, such as a lengthy criminal record. The district court didn't apply cultural assimilation and seemed to doubt the dependant's statement that he would stay in Mexico. The 9th took each factor separately, and found them reasonable. The framework was to look at the guidelines and the 3553 factors, which is an approach that makes sense, and employs the post-Booker attention to 3553. He also challenges the standard reporting requirement that he notify the P.O. within 72 hours after release for supervision under SR. He stated that this violates his 5th amend. privilege. Not so, says the 9th. On its face, the reporting requirement doesn't violate the 5th because the defendant can always refuse to answer. the mere showing up isn't a violation.

US v. Williamson, No. 05-30150 (3-13-06). This is another computer search case. The agents found 19 pornographic child photographs that could be traced back to the defendant. They got a search warrant, but failed to serve it on defendant or his mother (he was 50 years old at the time). The 9th found the failure to serve a violation of fed. R. Crim. P. 41, but since there was no prejudice, nor was it deliberate, suppression was not called for. The 9th also determined that there was probable cause for the warrant, and the fact that the warrant named imaged of "minor" children excluded virtual visual images. In the sentencing context, the court went to the stat max of 180 mos. The 9th found that "pattern of activity" expanded relevant conduct under 2G2.2, and note 1, and could be used for sentencing under 1B1.3. The 9th thus joined the 8th and 11th Circuits. The 9th found too that the age enhancements were for the photos found in Croatia, and not for other son the computer in his home. lastly, the sentence was reasonable because the court considered the various 3553 factors, and the factor sin this case (abuse of other family members, safety of the community etc). The analysis was a listing of that factors involved, and then the conclusion.

US v. Griffin, No. 05-50299 (3-16-06). A lawyer got love letters from jail. Thatw wasn't unusual because the lawyer was the wife of the inmate, an alleged Aryan Brotherhood hood member. The gov't seized the letters from her home pursuant to a search h warrant. The court turned them over to a special master, who redacted the attorney-client portions. The court then ordered their disclosure to the gov't. The defendant objected on the basis of marital privilege, was denied, and this special action followed. The 9th took jurisdiction, finding that this was one of the small special classes of cases where interlocutory review was necessary because the harm would occur with the release, and could not be remedied on appeal. In addition, under the Perlam doctrine, this was also reviewable because a disinterested 3rd party was ordered to disclose (the special master) and so the interests were represented best by the defendant. Turning to the merits, the 9th (W. Flecther) discussed the scope the privilege, and of course the intent. The gov't had argued that the privilege could only be asserted in a judicial or grand jury proceeding. the 9th avoided that whole distinction, noting that the letters were sent in an envelope marked "Atty-Client." The correspondence that was not legal was improperly sent. because there is no protection for letters sent to spouses from prison (all correspondence can be read except legal), then there was no expectation of marital protection. The privilege would not extend to this improperly sent mail.

US v. Perlaza, No. 02-50084 (3-14-06). The 9th explores the Maritime Drug Law Enforcement Act (MDLEA), 46 App. USC 1903 for jurisdiction and some prosecutorial misconduct. The jurisdictional issue is whether the finding that a boat is stateless or whether there is a nexus to the United States is one for the jury when there are facts in dispute. In this case, a trawler was off the coast of Mexico and 500 miles from the US. A speed boat was around it. The speed boat purposely rammed into the larger ship in an effort to scuttle the boat and hide evidence of cocaine. The assumption was that the trawler was used as a supply ship for cocaine runs into Mexico. The district court ruled that the jurisdiction issue was a judicial matter, that the speed boat was stateless (hence US jurisdiction) and that the trawler was aiding and abetting the speed boat. The 9th takes up the issue of jurisdiction after tacking around it in several other cases. It ruled that the facts that went into jurisdiction as for a jury decision, and once the facts were found, such as where the boat was or whether it was stateless, then the court could decide the legal issue of jurisdiction or nexus. The convictions were reversed. Interestingly, another issue raised was prosecutorial misconduct. The prosecutor argued to the jury that once it went back to deliberate, it could presume guilt because of the facts. The defendants objected. The court pooh-poohed the objection, although it later gave a bland curative instruction restating the presumption of innocent. The 9th found this to be error. The presumption of evidence remains during deliberation, and only is only overcome when there is evidence to prove guilt beyond a reasonable doubt. The curative didn't cut it.Brunetti dissented. He would uphold the convictions because the court had enough evidence to find that the boats were stateless, and that the error in argument was harmless.

Buckley v. Terhune, No. 03-55045 (3-17-06)(en banc). In an en banc decision, the 9th considers a state plea agreement. The plea had ambiguous language as to whether the petitioner would get 15 years, or whether it was 15 years to life. The written plea could be construed as being 15 years, and that was what the colloquy seemed to indicate, and what the petitioner signed. Other answers, especially at his cooperating testimony, indicated it was 15 to life. The 9th (Reinhardt) looked to state contract rules of construction, and the written contract, which is the plea, would be construed against the drafter (here the state). The 15 year determinative sentence may be illegal under the indeterminative sentencing scheme, but that is the state's problem, and not the petitioner, who completed his performance with the truthful testimony. The petitioner was ordered release. Callahan (joined by Tallman) dissented. The dissent would not confine its analysis to the four corners, but under state law look at the parties' intent as well. The intent here would be 15 to life. The dissent would also pay heed to AEDPA's deference to state findings of fact.

US v. Aukai. No. 04-10226 (3-17-06). This involves a secondary search after passing through a metal detector with inconclusive results. The defendant was sin a hurry to catch a flight. he didn't show ID at the ticket counter (oops), and his boarding pass was so stamped "No ID." He went through the metal detector without incident, but because of the stamp for no ID, he was routed to secondary. Defendant wanted to leave but was not allowed to. He was given a pass by the wand, passed that, but there was a lump noted in his pocket. Eventually it was found to be a pipe, and the defendant admitted he had some meth. He moved to suppress, lost in the district court, and appealed. the 9th (Bea) upheld the search. The 9th found no right to leave the metal detector/secondary search after one had consented to go through the metal detector and was routed to secondary because of the "No ID" stamp. The defendant had irrevocably consented to such a search by going through the initial screening with inconclusive results, defined as not definitively ruling out weapons. The 9th does not decide whether this would apply to a subjective test. This is a through opinion, that cites and discusses the various precedent, and the strains of the cases. In this age of security, once one passes through the security portal, one cannot go home again.6. Clark v. Brown, No. 02-99007 (3-17-06). The 9th grants sentencing relief to a capital petitioner because the California Supreme Court violated due process and Bouie in expanding the felony-murder special circumstance (Green) after the petitioner had relied upon it. The petitioner was a mentally disturbed man who decided to punish his therapist for discontinuing counseling by shooting her husband before her eyes. To accomplish this cruel act, he started a fire in their house to drive them out. The husband died from burns, the therapist suffered injuries, but her child was rescued uninjured. Under state law, a special circumstance for felony murder was that the felony was committed incidentally to the murder; that is, it was committed to achieve the murder. This was a narrowing principle.

On appeal here, the state supreme court broadened the state law (Green) so that the felony could be independent or concurrent to the murder. This was a substantial reinterpretation. Under the interpretation, it was the state prosecutor's version of the offense, that the arson was to murder the family, that would acquit the petitioner. To make matters worse, the court had failed to give the petitioner a Green instruction. The 9th held that the failure to so instruct on Green was prejudicial error, and that the radical reinterpretation of Green failed to give fair notice, could not be retroactive, and violated due process (Bouie).