Case o’ The Week: RAM, Rom, wrong - Ninth’s disappointing child porn case

What do the Mona Lisa (left) and child porn have in common? Nothing, says Judge Bea, in a disappointing new child porn case from the Ninth. United States v. Rom, __ F.3d __, 06 Cal. Daily. Op. Serv. 8261 (9th Cir. July 24, 2006), available here. A tough opinion upholding a conviction for "possession," for child porn images in an internet cache.

Players: Hard fought case by Nevada AFPD Jason Carr.

Facts: Rom, who had a sex-offense prior, viewed child porn on the internet while in Las Vegas. Id. at 8267. He flew to Canada on a business trip, where Canadian immigration detected his criminal record, searched his laptop, and saw child porn websites in the computer’s internet history. Id. On his return through Seattle, ICE agents searched the laptop and Rom admitted to viewing child porn on the web. Id. at 8269. Experts at trial said that child porn had been deleted, and that some porn was in the computer’s internet cache. Id. Many of the images were “thumbnails,” some of which had been “enlarged.” Id.

Issue(s): 1. Search: “[W]hether, absent a search warrant or probable cause, the contents of a laptop computer may be searched at an international border . . . Id. at 8265. 2. Sufficiency: “Rom concedes there was sufficient evidence for the jury to find he acted with the requisite mental state of ‘knowingly,’ but rather contends that the act he committed was merely the viewing of child pornography, not the possession or receipt of it.” Id. at 8273-74. 3. Jury Instruction: “We also address an error in the jury instructions on the mental state required for knowingly possessing child pornography.” Id. at 8265.

Held: 1. Search: “[S]earches made at the border . . . are reasonable simply by virtue of the fact that they occur at the border. . . Thus, the routine border search of Rom’s laptop was reasonable . . .’” Id. at 8272 (citations and quotations omitted). 2. Sufficiency of the evidence: “ In the electronic context, a person can receive and possess child pornography without downloading it, if he or she seeks it out and exercises dominion and control over it. . . . Here, we hold Rom exercised dominion and control over the images in his cache by enlarging them on his screen, and saving them there for five minutes before deleting them. While the images were displayed on Rom’s screen and simultaneously stored to his laptop’s hard drive, he had the ability to copy, print, or email the images to others. Thus, this evidence of control was sufficient for the jury to find that Rom possessed and received the images in his cache.” 3. Jury Instruction: The instruction was erroneous because it did not require the jury to find Rom knew prohibited files were on his hard drive. Id. at 8283 (discussing Lacy error). {But 9th refuses to correct the plain error}.

Of Note: A ND Cal AUSA recently revealed that ICE has a new investigation approach. ICE agents look for single men with laptops at international airports, then simply search the computers (without cause). LAX, SFO, Sea-Tac: any international hub could be getting these tough child porn cases. Note that as bad as Rom is, it did not reach two issues for international airport searches of laptops: a First Amendment angle, and whether such searches are “routine.” Id. at 8273 & n. 11. Also, query whether the new ICE approach has Equal Protection ramifications.

How to Use: Rom is bad – very bad – but there are chinks in its armor. Author Judge Bea conceded that Judge Kleinfeld has argued the rule of lenity against this expansive use of cached images for “possession” and “receipt” of child porn. Id. at 8279. Kleinfeld argued that someone with porn in his cache no more has “received” it than someone “receives” an image of the Mona Lisa who views the painting in the Louvre. Id. at 8280. Bea distinguishes this case, however, because here forensic evidence showed Rom actually enlarged images in the cache. Id. If forensics support a pure “pop-up” history, or inadvertently skimming over an image, Rom might not control.

For Further Reading: Bloggers are unimpressed with Rom. Warrantless and suspicionless searches of laptops is raising some eyebrows, even in the post 9/11 world. See article here. . Others query Bea’s logic, when the Canadians had initially developed PC anyway. See commentary here. Still others take issue with the forensic assertions in the opinion. See blog here.


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

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US v. Lence, No. 05-30236 (7-27-06). If at first your sentence doesn't succeed..... Here, the defendant was convicted of bank fraud. The judge sentenced him, and bemoaned the fact that the guidelines forced a higher sentence than he wanted to give. The court's departure was then reversed on appeal, and remanded. There was grumbling on the second resentencing by the court, and then another appeal, during which time Booker came down. On the third go around, a different judge sentenced (the court had reassigned). The 9th holds this is error, because the remand for the third time wasn't an Ameline remand, but a preserved error remand, and the practice is to send it back to the sentencing judge. Thus, the original court gets a third crack. The 9th also holds that the gov't wasn't estopped from arguing for minimal planning or abuse adjustments. The gov't had asked for them on the first sentencing, but had forgone them on the second because of Blakley, only to argue for them in the third. They still can. The 9th sidesteps the issue of reasonable doubt and the standard of proof at sentencing.

US v. Romm, No. 04-10648 (7-24-06). An international airport is a border port of entry, and a laptop brought in by a defendant can be searched. The defendnat was sent to Las vegas for training. There, he downloaded child porno. He then flew to british Columbia, where Candian officials stopped him, examined the laptop, saw the photos, meanwhile alerting the US officials. Arriving, he made statements and had his computer searched. The 9th upheld the search, finding that a laptop could be examined as part of a border search. The 9th didn't consider, because it wasn't preserved, whether the search was a first amendment violation. The 9th also refused to extend "official restraint" to such a situation of being refused entry by another country and sent packing. The jury instruction regarding possession failed to have the element of "knowledge." This was plain error, but harmless.

US v. Salazar, No. 04-50392 (7-24-06). The 9th affirms a conviction for destruction of a public document. The defendant worked for the INS, and the unit fell behind in filing documents that went into A files. So, the defendant started shredding, and shredding, and shredding. This deliberate act was intentional, and met the requirememnts of the statute. There was sufficiency of evidence.

US v. Cortez-Rivera, No. 05-50207 (7-24-06). In an interesting appeal, the defendant argued that the grand jury was wrongly instructed. The model instruction stated that the grand jury "should" not consider punishment in voting to indict. The 9th said that the word "should" rather than "shall" saves the instruction, and the role of the grand jury. The grand jurors have discretion to fulfill their function as a charging body. The 9th also held that when a defendnat alleges that damage to a vehicle during a border search, he shoulders the burden to prove that the vehicle's damage made it unsafe and inoperable. If the defendant makes the showing, the burden shifts to the gov't to show that such a search was reasonable. Here, the damage was only to an inside quarter panel; the vehicle was not shown to be unsafe or inoperable.

King v. Lamarque, No. 05-15757 (7-26-06). The 9th remands a petition for the district court to determine whether a procedural rule's application is still too ambiguous to act as a bar. The 9th held that the California rule barring petitions filed after "substantial delay" was too fuzzy for certainty in capital cases. The 9th finds that alleging such ambiguity, especially after the 9th held that the rule was ambiguous, meets the burden. The district court must determine whether the state courts have clarified the rule and whether it has been consistently applied. The 9th does turn down petitioner's argument that the bar should be tolled because he needed time to find an expert, whose opinion bolsters his case. the 9th holds that petitioner could have done that sooner on the facts known. Reinhardt, concurring, would not reach that issue because the expert helped support petitioner's case, and the 9th has taken others to task for not supporting their allegations with specific facts. To Reinhardt, the petitioner's waiting a reasonable period to hire an expert to support his claim would not default his claim.

Case o' The Week: Beezer's Booker Broadside: Carty and 3553 Factors at Sentencing

Senior Judge Beezer (left) articulates some good new procedural protections for post-Booker sentencing. See United States v. Alphonso Carty, __ F.3d. __, 06 Cal. Daily Op. Serv. 7899, (9th Cir. July 17, 2006), available here. In Carty, the Ninth requires a sentencing court to articulate its consideration of § 3553(a) factors.

Players: Hard fought sentencing win by AFPD Milagros “Millie” Cisneros, D.Az.

Facts: After trial Alphonso Carty was convicted of various sex abuse charges involving his minor niece. 06 Cal. Daily Op. Serv. at 7903. He was sentenced at the bottom of the guideline range to 235 months: over 19 ½ years. Id. The district court stated that it had reviewed materials before it (which included a pitch for a much lower § 3553(a) sentence). Id. at 7912.

Issue(s): “Carty . . . argues that the district court treated the Guidelines as mandatory and failed to consider adequately the factors of 18 U.S.C. § 3553(a). Carty’s challenge amounts to a claim that his sentence his unreasonable under . . . Booker. Post-Booker, we have jurisdiction to review sentences imposed within the Guideline range.” Id. at 7909.

Held: “Although several circuits have afforded the presumption of reasonableness to within-the-Guidelines sentences . . . we have not adopted this position. We offer no opinion whether the district court’s within-the-Guideline sentence here was, in fact, reasonable. We hold only that post-Booker, when imposing a sentence, a district court must provide on the record some articulation of its consideration of the § 3553(a) factors and explanation of the reasons underlying its sentence selection. Because the district court did not create such a record, we remand for resentencing.” Id. 7913.

Of Note: Carty answers one of the big questions post-Booker: must a district court articulate its consideration of § 3553(a) factors? The answer is yes, sort of. A sentencing court does not have to make a “specific articulation of each factor separately.” Id. at 7910. Booker requires, however, a showing that “the district court considered the statutorily-designed factors in imposing a sentence.” Id. Simply reciting the old ritual that the court has “reviewed the materials before it” and “considered the Guidelines” won’t cut it anymore – that just shows that one § 3553(a) factor was considered (the guidelines). Id. at 7912.

How to Use: Why wouldn’t a court always articulate its § 3553(a) reasoning anyway? Maybe old guideline habits, maybe a busy calendar. A more cynical answer, however, is that it sometimes is very difficult to articulate a reasonable rationale on why a defendant’s § 3553(a) pitch shouldn’t carry the day.

Because of this, Carty could be far more important than it looks on its face. Forcing a sentencing court to specifically articulate why unbelievable childhood abuse, or staggering family responsibilities, or superhuman rehabilitation efforts do not merit a lower sentence makes it harder for a court to deny the lower sentence. More importantly, a transcript with the specific denial of a § 3553 argument is a record riper for review (and remember, after Plouffe, in-guideline sentences can be reviewed).

For Further Reading: Judge Beezer was appointed by Reagan in ‘84. See profile here. While no judge likes to be conned in oral argument, Judge Beezer, however, does not hesitate to ably point out a lack of candor for the whole world to see. See blog on Beezer's - pointed - concurrence here.

Like Ninth Circuit Judges Tashima, Pregerson, and Hawkins, Judge Beezer is a veteran of the Marine Corps. See article here. Beezer took senior status in 1996. He was succeeded in 1999 by a Clinton appointee, Judge Ronald Gould. See article here.

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

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US v, Feingold, No. 05-10037 (7-21-06). The charge was distribution of a controlled substance. the defendant was a doctor. The defense was that he might have been incompetent as a physician, but he was not a pusher. 185 guilty counts later, he argues on appeal that the evidence didn't support intentional distribution. The 9th looked at the expert evidence of his acting far outside of ordinary health care, like rampant prescribing narcotics without seeing the patients, that the verdict was affirmed. The 9th also found no error in the jury instructions that describe the "ordinary care" of a physician. The case is remanded for resentencing, although, in terms of safety valve, the 9th held that the court didn't have to give it because the defendant failed to be truthful.

US v. McWeeney, No. 05-10349 (7-21-06). The 9th remands a "consent to search" case to determine whether police coercion occurred. The defendants were stopped while driving as the car had been reported stolen but returned. In stopping the car, the police asked if they could "look" in the vehicle. The 9th ruled that "look" means search, and also includes the trunk. The problem here came when the defendants were taken out of the car, and ordered to face away from the search. When one turned around to look, he was ordered to turn around and not peek. This peek may be construed as a consent with limitations (i.e. we get to observe the search). A gun was found in the car trunk. The gov't pressed for ruling that a limited consent has to be specified at the time, but the 9th didn't go there. The remand is to see if the police actions were coercive and made the consent involuntary.in a car. B. Fletcher dissented from the remand., She argued that the police orders were of course coercive, and no remand was necessary. the search was bad because the police prevented the defendants from observing, which was their "limitation" on the consent.

Rose v. Mayberg, No. 05-16881 (7-18-06). The 9th considers the degree of a mental condition required to commit petitioner as a sexual predator. The 9th affirms the district court, and the state courts (California) that the offender need not have an uncontrollable mental condition, but that it must be serious. The jury moreover need not make separate findings as to extent or degree.

US v. Ballesteros-Selinger, No. 05-50287 (7-19-06). "An oral contract," Sam Goldwyn once growled, "is not worth the paper it's written on." An oral decision, however, if it is reduced to a memorandum is of evidentiary value, and can be admitted without a Crawford problem because it is nontestimonial. The memorandum of an IJ's decision regarding deportation of the defendant was not written in anticipation of litigation but to record said fact of deportation. A difference that is perhaps without a distinction (except to avoid Crawford).

US v. Lyons, No. 04-50157 (7-19-06). The 9th finds sufficient evidence, when viewed etc., to affirm a mail fraud conviction. The defendant fraudulently signed movie posters in the names of celebrities (i.e. Yul Bryner). The argument was that the evidence didn't show that the defendant mailed the poster knowing that the buyer intended to resell. The 9th held, unsurprisingly that the evidence was there for a jury to find that reliance was foreseeable. The sentence was remanded, even though it was an upward (gulp) that was supported. The 9th reasoned that the court departed within the guideline world, but possibly, viewing other 3553 factors, the sentence might have been different, or less severe. The bases of the upward was underrepresentation of the loss (125,000) and more than 50 people were affected. It was a total of 14 levels.

US v. Carty, No. 05-10200 (7-17-06). In this appeal from a sex abuse case occuring in Indian Country, the 9th considers an insufficiency argument, and basically defers to whatever the jury finds. The testimony of the victim was both contradictory and incredible, but the 9th said that is what the jury is for. The sense is that the 9th will not disturb a jury verdict in a sufficiency appeal.

On the sentencing issue, the 9th does reaffirm the new world of Booker sentencing, stressing that the court cannot just adopt a guidelines sentence, because that would give effect to just one of the 3553 factors. Although the 9th does not lay out an exact mantra that must be repeated, it comes pretty close. The 9th stresses that the district court has to indicate it considered the 3553 factors, and actually discuss them and the purposes. This is another blow against the "business as usual" approach.

Congrats to Milagros Cisneros, AFPD D. Az, for the sentencing silver lining in this decision.

US v. Lyons, No. 04-50082 (7-17-06). The 9th allows use of administrative costs in a telemarketing fraud trial to show evidence of criminal intent. The 9th also finds harmless failure to instruct on co-defendant/co-schemer liability.

Weather v. Palmateer, No. 04-36009 (7-17-06). The 9th reverses a district court finding of IAC. The 9th looks to the state's finding, and gives it credence. This was a highly publicized serial rapist plea, for which the defendnat fired his attorney and got another counsel. The state courts found that the decision to plead guilty was not a result of IAC, and that there were benefits. The 9th agreed. Moreover, the prejudice prong could not be met.

Case o' The Week: Ninth Rightly Balks at Bad "Acceptance" Decision, Espinoza-Cano

Like the Flying Dutchman (above), a recent unpersuasive “decision” of the Ninth Circuit appears – then thankfully vanishes into the mist. See United States v. Espinoza-Cano, No. 05-10339, 06 Cal. Daily Op. Serv. 7735 (July 13, 2006), not available here. Hopefully, it’s gone for good . . . .

Players: ND Cal AFPD Josh “Young Turk” Cohen with an important challenge.

Facts: Espinoza-Cano raised an unsuccessful legal challenge. Id. at 7742. He then offered to enter a conditional plea, to preserve the appeal. Id. AUSA Rob Rees refused, saying it wasn’t “appropriate.” Id. So, the defendant stipulated to all facts of conviction and stipulated to a bench trial. Id. In other words, this was a “slow plea.” Id. AUSA Rees, however, refused to recommend the third acceptance point because Espinoza-Cano had “put the government to its burden of proof at a stipulated facts bench trial.” Id. at 743.

(Ed. note: Don’t ask me to explain the government’s rationale – this “trial” actually took less time and less government resources than a normal, garden-variety plea).

Issue(s): Did the “district court err[ ] in not reducing his offense level by an additional level for acceptance of responsibility based on his having timely notified authorities of his intent to plead guilty[?]” Id. at 7743.

Held: “By proceeding to trial, Espinoza-Cano did not allow the government to avoid spending resources on preparing for trial. Even if we were to equate a stipulated facts bench trial with an outright guilty plea, the government still would not have been compelled to file the motion . . . . [A] plea of guilty allows the government to avoid expending resources anticipating, and ultimately defending, a complete appeal.” Id. at 7757.

Of Note: This decision posted on July 13th – then promptly disappeared. Now, it can’t be found (though it may reappear soon). The panel was right to withdraw its wrongly-decided opinion. The guideline at issue allows the government to withhold the third acceptance point if it is forced to prepare for trial. Here, AUSA Rees did nothing to prepare for trial – there were no witnesses, no evidence besides the defendant’s declaration, and no jury. The panel simply rewrites the guideline by allowing an AUSA to withhold the third point simply to prevent an appeal.

This is a Big Case. The panel’s phantom decision would allow USAOs to inappropriately shut down many appeals by (as here) refusing to grant conditional pleas, and then by denying a third acceptance point – even when a defendant stipulates to guilt in a bench trial. The panel should remand this case to the district court to evaluate the issue, this opinion should be demoted to a mem dispo, or this decision really should go en banc. Fortunately, the panel now has a chance to change its mind before (re)-releasing its result.

How to Use: If, by chance, the panel is unpersuaded by a blog, the defense should fully exploit the illogic that this opinion creates. First, many fair district court judges are offended by AUSAs who are too timid, or too lazy, to defend legitimate challenges on appeal. That’s particularly true where an entire USAO – like that in the ND Cal – has adopted this policy. That third acceptance point is easy for a sentencing judge to offset in a Booker “adjustment” if the unfairness of the situation is made clear before a stip facts bench trial.

Alternatively, some defendants may be willing to eat the relatively small difference of one “acceptance” offense level to preserve an appeal. Note that the guidelines still provide two acceptance offense levels for a plea – without an AUSA’s blessing – even if the plea is on the eve of trial. Note that the Ninth Circuit has some very good authority regarding credit for the full two acceptance points even after trial, when a trial is simply to preserve a legal issue. Thus, the Espinoza-Cano decision may be of additional, systemic concern: by taking the third point out of play it removes an important incentive for an early plea. An approach designed to preserve resources may, ironically, actually end up costing far more Court and government resources.

For Further Reading: For an interesting – if old – argument defending the need for conditional pleas, see Note, Conditional Guilty Pleas, 93 Harv. L. Rev. 564 (1980).

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

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US v. Estrada, No. 05-10500 (7-14-06). Its Bastille Day, but no prisoners will be released in celebration. In this opinion, the 9th examines what "knowingly" means for mens rea in a possession of pills for meth. The defendant had the misfortune to be in a car accident that saw his camper shell turn over. There were 178 lbs of psendoephedrine, 78 gals of denatured alcohol, and other "tools of the meth trade." The truck was sold two mos later by the towing company. At trial, the gov't also introduced under FRE 404(b) the fingerprint on a lab flask recovered from a storage locker in 1994, the said flask used in the manufacture of meth. On appeal, the 9th said that "knowingly" under 841 does not require both the knowledge that the pills would be used in meth manufacture and that the pills were psendoephedia. This is controlled by US v. Lo, 447 F.3d 1212 (9th Cir. 2006), where the 9th held that there wasn't a specific intent in knowing that the pills were listed controlled substances. The 9th takes a crabbed view of plain error, where the defense counsel fought hard for an instruction that stated that the defendant had to know the pills. the next day, when the court said it would give a supplemental instruction, defense counsel said "okay." That means agreement, and so plain error (Hence: don't be nice and go along, object!). The 9th found no due process violation in the destruction of the evidence (sale of truck). The defendant could have asked for it, and the process was carried out by the towing company. More disturbing was the admission of the 1994 fingerprint. The 9th said it was okay under 404(b) because of the limiting instruction (only consider it for lack of accident blah blah blah). Still, it is a decade old, was in a storage locker, and only on a flask.

US v. Adjani, No. 05-50092 (7-11-06). This is an extortion case involving the supposed stealing of a computer database and then blackmail. The co-conspirators weren't very smart, returning from Zurich for a meeting that lead to their arrest. In a suppression motion, the codefendants argued that e-mail exchanges between them must be suppressed because of lack of probable cause, and then for an overbroad search, The district court suppressed, but on appeal, the 9th reversed. the 9th (Fisher) found that the warrant, for computers, meet probable cause given the circumstances and the nature of the threat. Moreover, the warrant was directed at the computers on the premises (a home in Venice, Ca) and the fact that the computer present may have been owned by the codefendant. and not so identified, did not invalidate the search. the computer was still there and fell within the parameters.

Roy v. Lambert, No. 04-35514 (7-12-06). The 9th considers whether equitable tolling should allow a late filing of a habeas petition under AEDPA. The petitioners are Oregon state prisoners who had the misfortune of being transferred out of state to a private prison facility in Florence, Arizona (CCA). They allege that the woeful condition of the law library, the lack of any assistance for Oregon state law, and the needs they have because the are pro se should equitably toll AEDPA. The 9th found they made a sufficient showing for a hearing, noting that the petitioners had filed as soon as they were transferred back to Oregon, had access to materials, and had been requesting such access.

Defendants are charged with kidnapping for ransom and five subsequent murders. Certain crime victims, some of whom will testify at trial, asked to view the trial in its entirety pursuant to the Crime Victim's Rights Act (CVRA). The district court denied the motion, stating that it wanted to avoid collusion and to preserve decorum. The gov't sought mandamus. The 9th granted in part and remanded. The 9th examined the statute 18 USC 7771, which grants an exception to FRE 615 exclusion. That right, however, is not without limits. If the court finds by "clear and convincing' evidence that testimony would be materially altered if the victim heard other testimony, then the witness may be excluded, although other alternatives must be explored. Here, the district excluded the victim-witnesses without determining whether their testimony would be "materially altered" or whether there are reasonable alternatives. The 9th found that the CVRA effectively abrogated FRE 615 with respect to crime victims, and imposes these new weighing test. Moreover, under this test, a "mere possibility that a witness may alter his or her testimony as a result of hearing others testify is not enough to exclude, the court must find that it is highly likely. To call it as it is, it isn't sufficient that a victim may possibly mislead or lie, the court has to find that it is highly likely they will mislead or lie. The court doesn't order the court to permit presence; rather, the court has to make findings under this standard.
Practice issues: (1) the use of "clear and convincing" as "highly likely" is one that can refer to when the gov't has to prove "clear and convincing" (such as in cross references in sentencing). definitions of terms can be used.

(2) Do we get to voir dire and have a say in the materiality? For example, we can show that the victims may materially alter their testimony. In terms of discovery, do we get such discovery ahead of time (in a strict Jencks jurisdiction?). How do we know what might be altered?

(3) Can we ask that the victims go first because of their "right"? For example, if the court is looking for alternatives, we can say that the victim has to go first, or that the victims cannot be present when witnesses as to what the victims know testify. There are ways to possibly limit the damage.

(4) Since there is this right, can we get a jury instruction that states that such witnesses have an opportunity that others do not have?

(5) Can FRE 403 or FRE 100 (fairness etc) trump this? What about due process?

(6) Can this victim right be used to argue to the court that the defendant gets to put on an identification expert or other experts given the possibility that the victims may alter their testimony.

(7) This was an unopposed in limine motion that was denied by the court. Should the gov't be required to give notice beforehand? Can the court require notice or summaries?
Just some thoughts while the 9th Circuit conference goes on.

Case o' The Week: Iouri Mikhel and Victim-Witness Sequestration

Victims of an (alleged) kidnaping scheme ended up in New Melones reservoir (left). The victims' family wanted to see the capital murder trial, even though they would later testify. In re: Iouri Mikhel, No. 06-73376 (9th Cir. July 7, 2006) (ord.), order available here. The Ninth explains how the Crime Victims’ Right Act figures into sequestration of victim-witnesses.

Players: Per curiam order by Hawkins, Thomas, and Silverman.

Facts: In a capital murder case, the family of the murder victims wanted to witness the entire trial. Ord. at 2. In an unopposed in limine motion the government moved to permit this. The district court denied the government’s motion. Id. The district court held that if a family member was going to testify at either the guilt or penalty phase of the trial, they would be excluded until their testimony was over. Id. The government took the ruling up in a petition for a writ of mandamus. Id. at 3.

Issue(s): What showings are necessary under the Crime Victims’ Rights Act (“CVRA”), before a district court judge can sequester victim-witnesses under Federal Rule of Evidence 615?

Held: “While the district court’s summary exclusion of the victim-witness may have been proper under Rule 615 prior to the enactment of the CVRA . . . . the CVRA abrogated Rule 615, at least with respect to crime victims. A mere possibility that a victim-witness may alter his or her testimony as a result of hearing others testify is therefore insufficient to justify excluding him or her from trial. Rather, a district court must find by clear and convincing evidence that it is highly likely, not merely possible, that the victim-witness will alter his or her testimony.” Id. at 4-5 (emphases in original) (citation omitted). “Thus we grant the United States’ petition in part and instruct the district court to consider whether clear and convincing evidence proves that the victim-witnesses’ testimony will be ‘materially altered’ if they are allowed to attend the trial in its entirety.” Id. at 5-6.

Of Note: The Ninth does not hold that the CVRA trumps a district court’s ability to sequester witnesses. The panel emphasizes, “We decline to order the district court to allow the courtroom presence of the victim-witnesses, or to provide any other specific instructions. Rather, we simply remand the issue for reconsideration by the district court in light of the this opinion and the requirements of CVRA. We do not reach the merits of any other issue.” Id. at 6.

How to Use: This was not a tough issue for the Ninth, and the panel got it right with its narrow holding. The order’s holding is limited to articulating the showing required to exclude victim-witnesses. Id. After the CVRA, the district court must find by a standard of “clear and convincing evidence” that the witnesses’ testimony will be “materially altered” by attended the trial before their testimony. Id. at 4. Note that in this case, the defense did not object to the victim-witnesses’ presence, and there were no constitutional objections to the CVRA. In re: Iouri Mikhel does not, therefore, stand for the proposition that exclusion of victim-witnesses is generally improper.

For Further Reading: Mikhel is allegedly a member of the Russian mafia, and is charged with kidnaping for ransom, torturing, and killing several businessmen and then dumping them into the New Melones reservoir. See article here.
To complicate matters, the defendant allegedly tried to escape from federal prison while awaiting trial. See article here. Conspirators on the outside “bought cell phones and tools, [and] a pillowcase containing a cell phone, hacksaw blades, a video camera and a small amount of marijuana was passed through a cell window.” See article here.
Hacksaw blades makes sense, and a little weed goes a long ways in jail, but what’s with the video camera? Was the escape going to be featured on reality TV?

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

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US v. Clark, No. 05-10480 (7-5-06). This is a felon-in-possession case, where the 9th remands because the district court failed to make any findings regarding an adjustment for an obliterated serial number on the weapon that affected his guideline range. The 9th (B. Fletcher)denied a host of other sentencing challenges going to the sixth amendment, and reasonableness.
Of note in this opinion is the gov't's argument that the district court had in fact considered the facts concerning the serial numbers. It seems that the gov't tried to squeeze a finding out of selected statements taken out of context. In a concurrence, Kozinski takes the gov't attorney to task, saying of the argument that "government counsel was trying to pull a fast one." Kozinski admonishes the counsel to making unreasonable arguments, and chides them for not understanding that they cannot just make assertions, and play with the record. Lawyers just can't "pluck a few words from the middle of a sentence and pretend they say something very different from what they mean in context." This standard is especially true for gov't counsel concerned with "truth and justice." The case came from the District of Nevada. Gov't counsel is identified as DOJ from Las Vegas.

Hoffman v. Arave, No. 02-99004 (7-5-06). The 9th (Pregerson) grants a petition on IAC, and orders the state to reinstate a plea bargain to life. the petitioner was an accomplice in a brutal murder of a state informant. He was offered a life sentence, but counsel advised against it because the state system (Idaho) was similar to Arizona's with judge sentencing, which the 9th had found violated the sixth amendment in Adamson in 1988, and then overturned by the Supremes in 1990, only to be abrogated by the Supremes subsequently in Ring (many executions later). The 9th found that the advice to turn down the plea was IAC because the Adamson decision was being challenged and by no means certain, the state system had turned down the challenges previously, and the defendant had no real benefit from the rejection given the evidence. (In the background is the sense that the 9th was finally vindicated in Ring). The 9th found that the petitioner suffered from mental problems and handicaps, and the investigation and presentation of the mental problems in trial and at sentencing was ineffective, but there was no prejudice. State law (Idaho) severely limited the mental issue that could be presented, and the evidence was such that it was not prejudicial not to have presented it.

US v. Beng-Salazar, No. 04-50518 (7-6-06). This is a 1326 appeal. The defendant raised challenges in district court to the use of his priors under Alemendarez-Torres and under the sixth amendment. The challenge to Alemdarez-Torrres has been foreclosed by 9th precedent, but the constitutional challenge under Apprendi and Blakely preserved the Booker challenge to the guidelines, and as such, the sentence is vacated and remanded for resentencing rather than be accorded an Ameline remand. In short, raising the sixth amendment to the mandatory guidelines gets a new sentence without the Ameline "plain error" limited remand.

Kenna v. US District Court for the Central District of California, No. 06-73352 (7-5-06). This is another mandamus in the same case where the victims of a fraud demanded, and got from the 9th, the right to be heard at sentencing. In this mandamus, a victim now wants disclosure of the defendant's PSR. the court said "no" but would release portions. The victim took it up, and the 9th also said "no." The 9th holds that Crime Victims Rights Act, 18 USC 3771 fails to confer a general right for victims to obtain the PSR. The reasons offered moreover do not outweigh the need for confidentiality. Kenna refused the disclosure of specific portions. The mandamus is denied.

Case o' The Week: Pittsburg ain't "close enough" to Arizona, Writes Reinhardt (Staffeldt and wiretaps)

Reinhardt writes a very rare wiretap win for the Ninth, and provides a good overview for facial wiretap challenges. United States v. Staffeldt, __ F.3d __, 06 Cal. Daily Op. Serv. 7083 (9th Cir. June 26, 2006), opinion available here.

Players: Great Reinhardt decision from good panel including Hawkins and Noonan.

Facts: An Arizona AUSA applied to DOJ for authorization to submit a wiretap application. 06 Cal. Daily Op. Serv. at 7090. (For Title III wiretaps, a senior DOJ official must authorize before an application is submitted to a federal court). Id. at 7088, citing 18 USC § 2516(1). DOJ faxed the wrong authorization back; the Arizona AUSA ended up attaching a Pittsburgh authorization to his wiretap application. Id. at 7089-90. Wire approved, the tap catches Staffeldt in a pot conspiracy, the district court suppressed the wire, and the government appealed. Id. at 7091.

Issue(s): Is this “flagrant and obvious error,” a “minor one not warranting suppression.?” Id. at 7086-87? (The government’s argument).

Held: “The application for the wiretap of Staffeldt’s telephones is clearly insufficient on its face. The facial insufficiency relates not to a minor issue unlikely to affect a reviewing judge’s determination whether issuance of a wiretap is warranted, but rather to a factor essential to the issuance of a warrant – that the application for the wiretap has been authorized. We hold that the facial insufficiency here requires the suppression of the evidence obtained as a result of the initial Staffeldt wiretap, which was approved on the basis of the insufficient application.” Id. at 7097.

Of Note: There are two broad categories of wiretap attacks: facial (a flaw in the face of the affidavit or application), and “substantive” (e.g., lack of probable cause, Title III necessity, and Franks problems). Staffeldt is a useful case for its approach to and explanation of facial attacks to wiretaps. The case is important, for courts of late have shown an appalling tolerance for glaring facial errors in wiretap applications. See, e.g. United States v. Callum, 410 F.3d 571, 576 (9th Cir. 2005) (rejecting facial wiretap challenge when application identified wrong DOJ authorizing official).

How to Use: Staffeldt reaffirms a painful fact: defense counsel must read the actual entire wiretap affidavit and application(s). This is a miserable task, because these are often incredibly poorly-written and sloppy legal documents. It helps to scan the originals into .pdf (Adobe) files with a very good OCR pass – this aids searches for terms or players across hundreds of documents. This technology, however, is no substitute for actually slogging through the paper.

For Further Reading: “As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.” Olmstead v. United States, 277 U.S. 438, 476 (1928) (Brandeis, J., dissenting). The folks at the Electronic Privacy Information Center (EPIC) are among the few Americans left that still agree with Brandeis - their site brims with righteous indignation at wiretap abuses. See site here. The EPIC site contains many useful nuggets about current wiretap trends, and provides useful links to the Administrative Office (A.O.) wiretap reports. The A.O. reports are a fascinating read: you can visit them directly here. These reports often (inadvertently) reveal the broad parameters of wiretaps coming down the pike in your district, much to the chagrin of your local AUSAs. See reports here (discussing N.D. Cal. wiretaps at page 7).

Do you suspect your USAO of forum shopping? Handpicking the judge to whom they submit the wiretap application? Take a look at these reports, and note how often some district court judges appear as having authorized wiretaps – and how infrequently others show up. A law student with five years of these reports, a list of judges in a given district, and a good Excel spreadsheet would have the foundations of a great law review article on wiretapping, forum shopping, and the abuse of prosecutorial discretion.

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

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