US v. Montgomery, No. 05-10587 (8-29-06). In an Ameline remand, the 9th (Pregerson) requires that the district court ask counsel about resentencing. The 9th had language that stated "should" consult, but when read in context, the "should" is mandatory. The district court doesn't necessarily have to hold a hearing, but at a minimum should ask for counsel's views in writing. The case here concerned a large fraud involving the Bank of Saipan, and on an Ameline remand, the district court statted, with no input from counsel, that that a resentencing wasn't necessary because the original sentence (240 mos) was appropriate. The 9th is telling the resentencing judges, even if they think they've heard it all before, they still must give us a chance to state our views.

US v. Johnson, No. 05-10708 (8-29-06). The 9th shoots down the possibility of a "transitory" possession affirmative defense in felon in possession cases. The police came by on a domestic call, and found a weapon on defendnat's bed, along with his wallet, and the girlfriend said "it's his." The defense was that he found the weapon on the way hom, near a school, and he was going to hand it over to the police. The DC Circuit allows such a defense, but the 9th (O'Scannlain) roundly rebukes the defense, finding no basis for it in the statute's mens rea, nor on policy grounds, and also supports the ruling but stating that disallowing the defense will protect (!) the defendnat from perjury. The 9th joins the 1st, 2nd, 4th, 7th and 11th in saying "no" to transitory or innocent possession (just holding it for an innocent purpose). The 9th does have language that the standard for a theory of defense instruction is above a scintilla, but not much, and that weak evidence can still trigger an instruction. That is what jury's are for. (The irony of couse is that the author of the opinion -- O'Scannlain -- recently wrote in Larson that cross examination of a cooperator's deal as to sentencing guideline benefits and machinations can be limited to prevent of jury confusion. Shouldn't a jury be allowed to weigh and balance benefits and bias?)

US v. Ruiz, No. 04-10308 (8-30-06). The gov't argued that the presence of guns in a house with a meth lab meant that two co-defendants and co-conspirators possessed them. The 9th said "no," reversing the convictions (and 30 year sentences) on sufficiency of evidence. The guns were scattered in the house, but no fingerprints linked them to the defendants; no statements were made indicating possession; no co-conspirator testimony tied them. Simply because guns were scattered with drugs, without some evidence. is insufficient. The defendants were caught outside the house and others escaped. The 9th refused strict liability. On another issue, the 9th held that a preliminary reasonable doubt instruction in which the judge riffed about DNA and all doubt was not error as it got the essence across and the standard instruction was given at the end.

Guantanamo Book Club

As the school year begins, with curricula and syllabi filling the fall air with Latin plurals, I’m led to think of some of the best resources on Guantánamo. Many of our offices have been appointed to represent detainees in a relatively novel type of litigation, and many of the issues in these cases parallel our representation in other habeas and direct representation. Here are my top ten on what has become a human rights disaster for this country.

1. Joseph Margulies, Guantanamo and the Abuse of Presidential Power: This is the best resource for anyone interested in the representation of Guantánamo detainees. In addition to providing the story of the litigation to date, Professor Margulies provides a wonderful history of this country’s attitude towards torture and indefinite detentions during wartime. The historical perspective is critical to understanding why the constitutional and statutory rights we are defending are essential both to our country’s heritage and the safety of our armed forces. A must read and easy reference for friends and relatives interested in why the rights of Guantánamo detainees matter.

2. The 9/11 Commission Report – Final Report of the National Commission on the Terrorist Attacks Upon the United States: One of the best ever examples of writing by committee. The Commission Report provides valuable context for the post-attack human rights violations. The need to assure that constitutional rights are fully protected during a time of national crisis does not diminish the need to fully appreciate the scope of the crisis. The Commission Report does a great job of telling a frequently told story in a fresh way. It also has the advantage of being available in searchable form at this link, so litigants can easily reference people, places, and events.

3. Craig Green, Wiley Rutledge, Executive Detention, and Judicial Conscience at War: This is a fascinating pre-Hamdan law review article, available at this link. Professor Green does a great job of tying the World War II era detention cases to the present by means of the rather obscure Justice Rutledge, who sat between 1943 and 1949. One terrific insight is the relationship between Justice Rutledge’s dissent in Ahearns and discomfort with Korematsu and the authorship by his then-law clerk, now Justice, John Paul Stevens, of Rasul. And of course the most fun is seeing how, once again in Hamdan, Justice Stevens has remained true to the judicial conscience of his mentor.

4. Ahmed Rashid, The Taliban: This is a pre-9/11 history of Afghanistan and the Taliban by a Pakistani journalist. Mr. Rashid provides great insights into the Communist and warlord era Afghanistan and the Taliban’s rise to power. He also provides an interesting geopolitical context by tying 19th century imperialism to late 20th century interests in gas lines and other natural resources.

5. Kathy Gannon, I is for Infidel: Kathy Gannon is an APA reporter who, for the last couple of years before the fall of the Taliban, was one of the few Western journalists who had access to the country. She provides an important and relatively sympathetic view of the Taliban’s initial rise to power as a sensible reaction to the predations of the warlords. She debunks claims regarding Mullah Omar’s supposed long-term connection with Osama bin Laden, and expresses outrage at our quick accommodation with warlords who had brutalized their people prior to the Taliban coming to power. She also provides a useful perspective on Pakistan, from which I could not help but draw analogies to post-World War I Germany, especially in light of the next article.

6. Roland Muller, Honor And Shame In A Middle Eastern Setting: This is a sociological article, available at this link, based on the premise that a fundamental cultural gap exists for Westerners who do not appreciate the nature of honor-based societies. The article is useful on the microlevel in terms of relating to individual clients, while on a macrolevel helps to explain the seemingly self-defeating steps the West too frequently takes in this area of the world.

7. Steve Coll, Ghost Wars: This is an exhaustive account of the involvement of the CIA in Afghanistan and South Asia during the run up to 9/11. The book helps provide perspective on the long term involvement of secret United States operations and multi-national corporations in the area. The detailed account of Afghanistan’s recent history also helps to provide context for detainee cases.

8. Karen Armstrong, Understanding Islam: This is a highly-readable introduction to Islam and its history. There are more demanding sources, and of course familiarity with the Koran is likely to be useful in interacting with some detainees. But this work provides a great place to start if a running start is lacking.

9. James Yee, For God And Country: This is the story of Chaplain Yee, the Muslim chaplain for Guantánamo detainees who became himself the target of government detention and investigation. The opening chapter provides an excellent description of what it is like the first time visiting the base. The account provides a glimpse into the experience of detainees during the early years of the prison and a long, hard stare at how innocent conduct can be turned into a security nightmare.

10. Chris Mackey & Greg Miller, The Interrogators: Although centered in the interrogation centers in Kandahar and Baghram, the authors provide insight into the experiences of detainees before their arrival and the psychology of the military interrogators. The fourteen techniques approved in the traditional interrogation manual, as well as field adaptations, are described, although softened for public consumption. The overall effect of the book makes very credible the statements of detainees regarding their treatment prior to arrival in Cuba.

Well, here’s my top ten. There are many other worthy articles and books that help in trying to make sense of Guantánamo and our litigation. My next read is Enemy Combatant, by freed detainee Moazzam Begg. Feel free to post anything you think should have made the top ten list in the comments section.

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

US v. Larson, No. 05-30076 (8-28-06). This is written in black instead of my usual blue because it can serve as an obituary for cross-examining a cooperating witness (aka "snitch"). Okay, maybe I'm melodramatic, but this is an opinion that does constrict the right to probe bias, and to get in front of the jury the various machinations of the guidelines and sentencing. The case involves in the usual meth conspiracy. Of course, some codefendants cooperated, and got pretty good deals. On cross, defense counsel wanted to question about the deals, and sentencing. The district court limited such questioning to the maximums, and not to the minimums faced, and not about the witness's understanding. On appeal, the 9th (O'Scannlain) affirmed the rulings. The 9th reasoned that bias was probed with the maximums faced, and that there was prison involved, and that the US Atty had to move for cooperation. Indeed, defense counsel did pretty well about the effects of prison, and the virtues of a plea. Still, the 9th's limiting of cross on this issue of deals and incentives and understanding was unfortunate.

It could be taken to limit such questioning even more, especially about the intricacies of the guidelines, and expectations.. The 9th stated that the jury shouldn't be confused with does seem to run counter to the expansiveness of Crawford.Speaking of which, the 9th also held that coconspirator statements. The 9th also found that defendants sitting behind counsel, and not at counsel table, was not fundamentally unfair, but was necessitated by security and space.

Case o' The Week: (En) Banc Robbers Threaten Two Good Booker Decisions

The Ninth Circuit takes en banc two good Booker decisions; Zavala and Carty. Order available here.

Players: Tashima and Paez on Zavala, Beezer on Carty.

Facts: In United States v. Zavala, 443 F.3d 1165 (9th Cir. 2006), Judges Tashima and Paez hold that the guidelines are entitled to no more weight than any other § 3553(a) factor. See blog here. In United States v. Carty, 453 F.3d 1214 (9th Cir. 2006), Judge Beezer explained that a sentencing court had provide some on-the-record articulation of its consideration of the Section 3553(a) factors. See blog here.

Issue(s): The Ninth, unfortunately, has taken both cases en banc. In an order on August 25th, the Ninth invited supplemental briefing on the following questions:

1. Do we have jurisdiction to review appeals of within-Guidelines range sentences?

2. If we have jurisdiction to review within-Guidelines range sentences, are such sentences entitled to a presumption of reasonableness, or should we review such sentences no differently than we review outside-Guidelines range sentences? If within-Guidelines range sentences are entitled to a presumption of reasonableness, is this presumption conclusive? Rebuttable? If rebuttable, how can such a presumption be rebutted?

3. How should we review a post-Booker sentence for reasonableness? Do we review only whether the district court complied with Booker’s mandate to consider the 18 U.S.C. § 3553(a) factors? If so, is this review de novo? Do we independently review the sentence imposed for reasonableness? If so, how do we determine whether a sentence is reasonable? What legal and factual matters, if any, must we consider? Is this review for abuse of discretion? Are factual findings decided by the district court reviewed for clear error, abuse of discretion, or on some other standard of review? Does it matter whether the findings are pertinent to the calculation of the advisory Guidelines range or pertinent to the application of the other 18 U.S.C. § 3553(a) factors?

4. What procedure is a district court required to follow in sentencing a defendant within the advisory Guidelines range? In particular, what should be the district court’s duty, if any, to articulate its consideration of the section 18 U.S.C. § 3553(a) factors?

5. If distinct from the procedure for within-Guidelines range sentences, what procedure is a district court required to follow in sentencing a defendant above or below the advisory Guidelines range?

6. What weight does the advisory Guidelines range have, in relation to other 18 U.S.C. § 3553(a) factors? In conducting a sentencing proceeding, may a district judge announce that he will impose a sentence within the advisory Guidelines range unless the parties present compelling reasons for imposing a sentence outside of that range? On review, should we determine whether the district court has given the advisory Guidelines range the appropriate weight, and if so, how?

See order here.

(To Be) Held: ¿Quién sabes?

Of Note: In 1991, Judy Clark argued Restrepo before the en banc court. United States v. Restrepo, 946 F.2d 654 (9th Cir. 1991). At issue was a key aspect of the (then-new) guidelines: proof requirements at sentencing. It was a historical juncture in Ninth Circuit sentencing practice. This Carty and Zavala argument is analogous: if the en banc decision survives Supreme Court review, it will be the lead case defining this new sentencing system in the Ninth.

How to Use: The Ninth has invited amici to weigh in: it is likely that we will. Other organizations – like CACJ and NACDL – should consider amicus briefing as well.

For Further Reading: Professor Berman is not surprised that the Zavala decision has been caught in the jaws of en banc review. See Berman’s blog here. . The good professor speculates, however, that this all might be upstaged by the Supremes. See blog entry here (listing circuit splits).

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


.

US v. Choudry, No. 05-10810 (8-25-06). The 9th holds that a civil parking violation, handled administratively , provides reasonable suspicion under Whren v. US, 517 U.S. 806 (1996) for an investigatory stop. Here, San Francisco officers noticed an illegally parked car, and hurried movements that (horrors) indicated sexual activity or some other illegal act was taking place. Well, it turns out that licenses had been suspended, an odor of marijuana hung in the air, and eventually a gun was found, and since the defendant was a prohibited possessor, this conditional plea and appeal followed. The 9th joins other circuits in reading Whren broadly to encompass not only criminal traffic violations, but all traffic violations. A parking violation alone can lead to an investigatory stop. Be sure to carry enough change for meters.

En Banc Questions in Carty And Zavala

Big news from the Ninth: the court is rehearing en banc the decisions in Carty and Zavala. The six questions (available here) have numerous subparts, giving the court an opportunity for a complete review of the standards for reviewing sentences in the post-Booker era. The Ninth Circuit Federal Defenders will likely be filing an amicus brief, as will others interested in this area of the law. As blogged here and here, Carty and Zavala got it right in rejecting a presumption of reasonableness and recognizing full reasonableness review, as contemplated in the remedial Booker opinion.

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

Young: the Sixth Amendment, constitutional avoidance, and § 922(g)(8)(A)

Within 18 months of the Supreme Court instructing that federal firearm statutes must be construed to avoid constitutional doubts regarding Sixth Amendment protections during predicate criminal proceedings, the Ninth Circuit in Young reversed the grant of a judgment of acquittal, holding that a defendant who is without counsel, and has not waived counsel, during a critical stage of a criminal proceeding, has had sufficient notice and an opportunity to be heard within the meaning of the firearms statute.

Let’s set this up. Brad Young is arrested on December 6 and charged with felony harassment. At his initial appearance, he is appointed counsel, advised of a restraining order, and instructed to return two days later. At the next appearance on December 8, the restraining order at issue is served. But one problem: the lawyer is not present. And there is no Faretta hearing or other waiver of counsel, even though the formal arraignment is unquestionably a "critical stage" of the prosecution under black-letter Sixth Amendment jurisprudence (Wade and Hamilton). The trial court interacts with the defendant in the absence of counsel, and the prosecutor has direct contact with the represented party, again in the absence of counsel.

So Mr. Young is later found in possession of a gun. The district court, after jury trial, carefully looks at the statute on possession of a firearm while under certain restraining orders. To be a predicate order, it must have issued after a "hearing" of which the defendant had "actual notice" and "an opportunity to participate." 18 U.S.C. § 922(g)(8)(A). Although the jury convicted, Judge Fred L. Van Sickle entered a judgment of acquittal, reasoning that the terms of the statute could not be construed to be met under the circumstances of the case. Most importantly, "The judge who presided over Mr. Young’s arraignment did not allow him to consult with his attorney before issuing the no-contact order."

This construction is consistent with Supreme Court authority. In Shepard, one of the most important recent decisions in firearms cases, the Court considered whether, under the Armed Career Criminal Act, the characteristics of a prior conviction could be established by facts not subjected to full Sixth Amendment adjudication in the prior proceedings. The Court held, applying the Doctrine of Constitutional Avoidance, that the statute had to be construed narrowly to only allow prior convictions to be used where each element was proved or admitted in accordance with Sixth Amendment protections. Such an approach is also consistent with the Rule of Lenity, which requires that ambiguous terms be narrowly construed in favor of the defendant.

Instead of relying on these principles, the Young panel defines the terms of the statute -- which have "a variety of meanings in federal law" -- as broadly as possible, even stating that "the ‘opportunity to participate’ requirement is a minimal one." Why would Congress, after stating elements in readily understandable due process language, intend only minimal protection for the gun owner, when the Sixth Amendment so clearly sets out the due process protections required at a criminal arraignment? Here, constitutional rights are at issue. Congress stated that the fairness of the earlier proceedings is a predicate for turning otherwise lawful activity into a crime. The reasonable construction of the statute, as found by the district court, is that it does not cover a proceeding at which counsel had been appointed but was absent and where no waiver of counsel occurred. Even if there were ambiguity, the panel did not apply the Doctrine of Constitutional Avoidance and turned the rule of lenity into a rule of severity.

The Circuits seem to be resistant to full implementation of the Supreme Court’s post-Apprendi Sixth Amendment jurisprudence. Remember, not a single Circuit anticipated Blakely, then the Circuits split on application of Blakely to the federal guidelines. Since Booker, not a single Circuit has had a problem with denying retroactive relief to prisoners whose sentences were enhanced by facts proved by less than beyond a reasonable doubt (as blogged here), which the Supreme Court will review next Term (as blogged here). The Sentencing Commission reports little change in actual sentencing under the advisory guidelines, and the pattern of appellate review demonstrates general affirmances of guidelines and above-guidelines sentences, with the reversals generally limited to district courts exercising the supposed authority to impose reasonable sentences below the guidelines (as reported by Professor Berman here). And speaking of appellate review, half the Circuits apply a presumption of reasonableness, which sneaks the mandatory aspects of the old guideline system through the backdoor (as set out here and 18 Fed. Sent. Reptr. 170).

In the face of the resistance to the Supreme Court's Sixth Amendment jurisprudence, our job is to advocate relentlessly and consistently to assure that our clients do not suffer convictions or serve more time based on the practices and statutory interpretations that raise serious constitutional doubts. This case should be reheard en banc to bring the Ninth Circuit in line with the methodology of constitutional avoidance and the respect for the Sixth Amendment required by the Supreme Court.

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

Case o' The Week: Gould Shrugs Off Hartz Attack, Upholds 924(c) When Jury Couldn't Agree on Gun

Judge Gould rejects a constructive amendment challenge in a Section 924(c) case – when the jury couldn’t agree on the gun used! United States v. Tommy Hartz, __ F.3d. __, 06 Cal. Daily Op. Serv. 9759, (9th Cir. Aug. 17, 2006), decision available here. A troubling variance/amendment decision that should be carefully limited to its “plain error” context.

Players: Opinion by Judge Gould.

Facts: An indictment charged Hartz with a § 924(c) offense, “use and carry,” and “aid and abet the use and carry of” a .357 and a 9 mm. 06 Cal. Daily Op. Serv. at 9767. The gun(s) were allegedly used during a robbery of a jewelry store. Id. at 9763. The jury was unanimous that Hartz had used a firearm, but said “no” to special verdicts that asked if he had used either the .357 or the 9mm. Id. at 9768. He was convicted and got 22 years. Id. at 9769.

Issue(s): [The defense argues] “that the jury instructions given by the district court constructively amended counts three and four of the indictment, allowing the jury to convict him of crimes that the grand jury did not charge.” Id. at 9773. (Specifically, the instructions allowed the jury to simply convict based on “firearm,” while the indictment alleged specific guns - the .357 and the 9mm).

Held: “[W]e hold that the language in the indictment describing the .357 and the 9mm was surplusage, rather than an essential element of the crimes for which Hartz was charged, and that the difference between the indictment and the jury instructions was a variance that did not alter the behavior for which Hartz could be convicted.” Id. at 9777.

Of Note: “Amendment” versus “variance” is an interesting, and often inconsistent, backwater of criminal defense law. For Judge Gould, this is just one in another chain of cases that tolerate the government switching up its theories and proof between the grand and petit juries. Id. at 9777-78. This decision is troubling, however. The Ninth reassures that the jury was simply not unanimous on whether Hartz used the 9mm or the .357. Id. at 9778 & n.9. How the panel divines that fact is not clear. An equally fair reading is that Hartz is now serving 22 years, when a jury couldn’t unanimously agree that he used a particular gun in the crime, and just settled on “firearm” as a compromise verdict. Particularly with a sentence that long, that type of uncertainty doesn’t inspire much confidence in the system.

How to Use: There was no objection at trial, so this is a plain error case – a fact reiterated throughout the opinion. See e.g., id. at 9778-79, 9780. As the decision concludes, “We therefore reject Hartz’s assertion that the variance between the indictment and the jury instructions prejudiced his substantial rights [a plain error test], and hold that the variance here was not a plain error warranting relief.” Id. at 9780 (emphasis added). Don’t let a court or AUSA characterize Hartz as controlling in a Rule 29 motion alleging constructive amendment: the panel itself pretty clearly limits the decision to a plain error case (a much more difficult standard for the defense).

For Further Reading: Judge Gould in not a great draw for a gun case. In United States v. Young, 420 F.3d 915 (9th Cir. 2005), he read constructive possession pretty broadly to uphold a gun possession. And of course, here in Hartz he upheld a § 924(c) – despite a lack of jury unanimity of the gun involved. Interestingly, however, he and Judge Reinhardt have tangled over the interpretation of the Second Amendment, and the “individual rights” versus “collective rights” models. See blog here.


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

.

US v. Hartz, No. 05-30134 (8-17-06). The 9th affirms a conviction for robbery, use of a firearm in a crime of violence, and felon in possession. the 9th held that the stopping of the vehicle in which the defendant was a passenger was valid because of incongruences between the truck's condition and the new license plates (the truck had been reported stolen). Seeing a firearm on the dash also was a valid reason for an officer to be a bit concern, and the Terry stop of the officer that lead to finding drug paraphernalia was also okay, which then lead to a list of stolen items on a full search. The more interesting issue related to whether there was constructive amendment of the indictment and a fatal variance. The verdict forms were not specific as to which guns were used or possessed. the 9th held that there wasn't constructive amendment, and that though there was a variance between the indictment and instruction, and the identification of the guns, there was no showing of prejudice.

US v. Young, )5-30313 (8-17-06). Couldn't the 9th have affirmed the granting of a Rule 29? After all, they are so rare, that one would think that it should be preserved. But no, the 9th (O'Scannlain) reversed the Rule 29 notwithstanding the verdict on a 922(g)(8) prosecution (having a gun while under a domestic violence no contact order). The 9th emphatically stressed it wouldn't look at the validity of the state's issuance of such an order. Turning to the main issue of notice, the 9th held that the defendant was notified of both hearings at issue here, and had an opportunity to be present and participate. His counsel, who wasn't present, was aware, and the defendant had been put on notice that the order issued, and he could not have weapons.

Case o' The Week: Ninth Brings the Mountain to Mohamed (Then Buries Him Beneath It). Booker and Guidelines "Departures" the Same on Appellate Review

In a surprising result from a panel that includes Judge B. Fletcher and Tashima, the Ninth upholds a five year sentence in a 12-18 month guideline case. See United States v. Mohamed, 06 Cal. Op. Serv. 9399 (9th Cir. Aug. 11, 2006), decision available here. Of more interest, the Ninth eliminates any distinction between Guideline departures and Booker non-guideline sentences.

Players: Authored by Judge Betty Fletcher, joined by Tashima (?!?)

Facts: Zameer Mohamed called in a fake bomb threat for a L.A. shopping mall. Id. at 9404. The hoax shut down many businesses, and the feds spent significant resources investigating it. Id. Turns out he called in the threat to falsely inculpate several men against whom he had a grudge. Id. He also had a history of theft and ID theft offenses, but no real criminal history. Id. at 9406. The district court quintupled the guidelines of 12-18 months, and imposed a sentence of five years. Id.

Issue(s): 1. Appellate Review of “Booker” Departures: “An exercise of discretion to sentence outside of the advisory guidelines is reviewed, just like a decision to sentence inside of the applicable range, for reasonableness . . . . It is still an open question of law, however, how this court reviews so-called post-Booker ‘departures.’” Id. at 9410.

2. Reasonableness: “The more difficult question in this case is whether the sentencing court’s decision to impose a sixty-month sentence, which far exceeded the advisory guideline range of twelve to eighteen months, was reasonable.” Id. at 9414.

Held: 1. Appellate Review of “Booker” Departures: “We think the better view is to treat the scheme of downward and upward ‘departures’ as essentially replaced by the requirement that judges impose a ‘reasonable’ sentence. The discretion that the district court judge employs in determining a reasonable sentence will necessarily take into consideration many of the factors enumerated in Section 5K of the Sentencing Guidelines, but to require two exercises — one to calculate what departure would be allowable under the old mandatory scheme and then to go through much the same exercise to arrive at a reasonable sentence — is redundant. In addition, the use and review of post-Booker departures would result in wasted time and resources in the courts of appeal, with little or no effect on sentencing decisions.”

2. Reasonableness: “We hold that it was [reasonable].” Although the sentence imposed is substantially higher than what the advisory guidelines had recommended, we are satisfied that the district court acted reasonably when it decided to go outside those guidelines and impose a five-year sentence.” Id. at 9414.

Of Note: Judge B. Fletcher upholds an upward departure to five years, on a 12-18 month case? Why? There’s a couple of possible explanations for the Mohamed decision. First, hate to admit it, but maybe Mohamed had it coming – there were some bad facts. As Fletcher observed, “Discretion is a double-edged sword” for a defendant. Id. at 9416. Still, why a published opinion that appears to green-light massive upward departures? Tashima was on the panel: surely the pair of them could have swung an affirming mem dispo?

Notably, in an important Guideline decision a decade ago, Judge Tashima dissented from the mere doubling of a sentence in a bomb case. See United States v. Sablan, 114 F.3d 913 (9th Cir. 1997) (en banc). Sablan is interesting, and merits a read in conjunction with Mohamed. Betty Fletcher was on the panel that rejected the Sablan enhanced sentence: she got reversed en banc. Compare 90 F.3d 362. In ‘97, Sablan set forth a judge’s discretion to depart under the guidelines: maybe Fletcher and Tashima see Mohamed the same way – as giving increased flexibility to district courts to give below-guideline sentences without worrying about USSG “departure” authority. If so, it’s a tough way to get that point across.

How to Use: Federal Rule of Criminal Procedure still requires notice before a Court goes above the guidelines on a basis not identified by the parties or PSR; at least this gives a little protection against Mohamed’s melange of Booker sentences and upward departures. See Fed. R. Crim. Proc. 32(h).

For Further Reading: Professor Berman notes the Mohamed decision, without much analysis. See blog here. The story hoax made the national news at the time. See article here.

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

.

US v. Mohamed, No. 05-50253 (8-11-06). This is an important sentencing case. Be care what you wish for when it comes to "reasonableness." The defendant was found guilty of conveying a false terrorist threat. he was getting back at co-workers that did him wrong. His crim history was I, and his guidelines were 12 to 18 mos. the court sentenced him to 60. Was it reasonable? The 9th (yes, the 9th) through B. Fletcher (yes, B. Fletcher) held it was indeed reasonable. The 9th first had to deal with how they should assess the sentence because the district court styled it as a "departure." Is the fact that a court uses a departure, under the guidelines, different from a variance? An interesting question. The 9th analyzed the issue, and concluded that a departure, styled as such, should be reviewed under a reasonableness standard. Tthe 9th considered that such a departure could be had under a variance, and so should look at the two, arriving at the same place, under the same standard. This comports with the 7th Cir's approach. As the 9th wrote:

[4] For these reasons, we side with the Seventh Circuit and
we elect to review the district court’s application of the advisory
sentencing guidelines only insofar as they do not involve
departures. To the extent that a district court has framed its
analysis in terms of a downward or upward departure, we will
treat such so-called departures as an exercise of post-Booker
discretion to sentence a defendant outside of the applicable
guidelines range. In other words, any post-Booker decision to
sentence outside of the applicable guidelines range is subject
to a unitary review for reasonableness, no matter how the district
court styles its sentencing decision.

This is a "unitary" approach. It is counter to some other circuits, that have given more of a deference to departures under the guidelines (abuse of discretion). "Departures" under the guidelines though are still assessed in the reasonableness analysis, and how the guidelines characterize a departure can weigh in reasonableness. The guidelines determinations are still de novo.

As for the reasonableness, the 9th really doesn't define it here, but opines that this sentence as indeed reasonable . Tthe district court stated that the sentence was imposed to protected the public, deterrence, and promote law. The factors that made the sentence reasonable was the costs and expense that this hoax of a terrorist attack caused law enforcement (LAPD spent $50,000 and diverted resources), the underrepresentation of the defendant's criminal history (he was living here illegally for yerars and had been involved in a number of frauds for which he was never charged not sentenced). The guidelines themselves stated taht the guidelines may not take into account all the costs for a hoax. Finally, the five year sentence was less than half of the stat max.

Boot Camp Update

On January 14, 2005, the Director of the Bureau of Prisons unilaterally announced the termination of the federal boot camp program. The boot camp statute, guideline, and regulations established a terrific rehabilitative program that permitted non-violent defendants with minor prior records to reduce their actual time in custody from 30 months to 6 months, with extended community confinement after successful completion of the intensive boot camp's requirements. For prisoners with sentences of 30 to 60 months, the period of community confinement at the end of the sentence would generally total 12 months, significantly more than the 10 percent provided by statute.

The BOP’s actions appear to be patently illegal. Early on, Judge Saris from the District of Massachusetts entered an injunction based on violation of the Administrative Procedure Act and the Ex Post Facto Clause, as blogged here. Although a number of other district courts have expressed frustration with the nullification of the boot camp sentencing option, they have refused to grant relief. The BOP has also engaged in a successful strategy of attempting to moot litigators by placing plaintiffs in state boot camp programs, as occurred in the Massachusetts case.

So, how should defense counsel respond to the elimination of this benefit for clients? There are a number of approaches that depend on our client’s situation.

The first and most important is for defendants who are either being sentenced in the first instance or being resentenced. If they would qualify for the boot camp program under the published criteria, we have a powerful argument that, under the Booker advisory guidelines, the reasonable sentence is achieved by an equivalent sentence through structuring of prison time and creative conditions of supervised release. For example, in a case in which we obtained a resentencing based on termination of boot camp, the district judge reduced the 30-month sentence to a year and a day and added a 6-month halfway house condition with an extensive community service obligation.

This type of creative sentencing is required by Booker’s reference to Section 3553(a) factors, such as the kinds of sentences available and the need to provide correctional treatment in the most effective manner. This type of sentencing is also strongly supported by the 1994 Department of Justice study that concluded that non-violent offenders with minor or no criminal history were being systematically over-incarcerated (available here and here). The DOJ study acknowledged that the same prisoners for whom boot camp was designed are receiving sentences greater than necessary to achieve the deterrence and rehabilitative purposes of sentencing.

But what about the defendants who have already received boot camp sentencing? If you have a defendant within the closing window for individuals who were sentenced after the termination decision was made but before it was announced, there is relief available under Section 2255. In United States v. McLean, Judge Aiken granted a Section 2255 motion based on the fact that her sentence was imposed after the decision had been made to terminate the federal boot camp program (2005 WL 2371990). The material mistake of fact provided the court with jurisdiction to grant relief.

What about folks whose sentences preceded the boot camp termination or individuals who have a boot camp recommendation after the termination was announced? For these individuals, litigation may be appropriate. First, the BOP has placed litigators into state boot camp programs. So, for example, a defendant serving a 60-month sentence who is supposed to go to boot camp at 24 months before his or her projected release date may be able to negotiate for relief in the form of referral to a state boot camp. Further, if you can persuade a judge to follow the sentencing option available under the statutes and guidelines, regardless of the BOP’s administrative action, you may be able to litigate successfully during the time prior to voluntary surrender to obtain a direct commitment to a state boot camp. And even if your client has already lost the benefit, the harm from the illegal over-incarceration can still be remedied by favorable litigation that becomes a basis for a discretionary reduction in the period of supervised release, as in Mujahid.

For those clients who escape the procedural pitfalls, we may be able to litigate the ultimate issues to eventually obtain declaratory and injunctive relief in the form of an order that the boot camp program be reinstated. The BOP’s unilateral elimination of a sentencing guideline, expressly authorized by Congress, raises severe separation of powers problems and violates a number of statutes. These issues are currently on appeal before the Ninth Circuit in Serrato v. Clark, CA No. 06-15167. The legal arguments are set out in the memo linked here, which layers our position under the Sentencing Reform Act, the Administrative Procedure Act, Retroactivity Doctrine, the Ex Post Facto Clause, and the Separation of Powers Doctrine.

Termination of the boot camp program is a classic abuse of Executive Branch power. Despite BOP claims that the decision was carefully made and based on studies, the decision was made in less than a week and involved no studies whatsoever. In deposition testimony, the BOP executives claimed that there was no consideration of termination until November 16, 2004, when the idea was put up on a brainstorming pad of paper. By November 22, 2004, my client was being told by her case manager that the program was terminated. No new BOP studies had been conducted since the Lewisberg study of 1996, which determined that boot camp was both effective and cost-efficient.

We need to be especially careful to assure that our clients are not victimized by this abuse of executive authority. Prevention is the best cure; but if litigation is necessary, we should be prepared to assure that our clients do not suffer longer incarceration and deprivation of effective rehabilitative treatment. The BOP should not be permitted to unilaterally thwart a sentencing option established by Congress and the Sentencing Commision to mitigate punishment for first-time, non-violent offenders.

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

US v. Espinoza-Cano, No. 05-10339 (8-8-06). The 9th wades into the thicket of Taylor/Shepard for a prior conviction where the police report was incorporated into the complaint, and then became part of the plea colloquy. The 9th holds that such incorporation meets the modified categorical approach approved by Shepard. The defendant, in state court, had admitted that the complaint formed the factual basis of the plea, and the complaint had referenced the police reports. One can see this as an unfortunate expansion of the modified approach. The reality is that defendants, presented with a favorable sentence, look at that rather than the factual basis in taking the plea. The repercussions will resound later. This case also sets out the standard for the 3rd point of acceptance. The defendant here went with a bench trial because the gov't wouldn't grant a conditional plea. The defendant asked for the 3rd point, but didn't get it because the gov't refused to move for it. The 9th holds that the review standard for the granting of the 3rd point is the same as for substantial assistance. It is completely at the whim of the gov't except if it is animated by an unconstitutional motive or not rationally related to a legitimate gov't end. This is the position of the 6th, 8th, and 10th Circuits.
The third point is now like substantial assistance: the gov't gets to dole it out. Fortunately, it is often the gov't that wants the plea.

US v. Ziegler, No. 05-30177 (8-8-06). An employee can have a subjective belief in the privacy of his work computer, but society's objective standard is that he does not. As such, the employer can look into a computer's hard drive, copy it, and turn it over to the police. The defendant here worked for a company (Frontline) that had a policy against inappropriate content on its computers. Defendant loaded child porn on his work computer. the FBI was tipped off, and they had the cooperation of the company officials, who at night copied the hard drive. This was okay because there was no objective expectation of privacy in a work computer.

LaMere v. Slaughter, No. 05-35588 (8-8-06). Winship and Jackson, the tests for sufficiency of the evidence, are not limited to the evidence presented only in the state's case-in-chief but takes into account all the evidence. This case arose from a state mitigated homicide conviction (Idaho) where the motion for acquittal at the end of the state's case was denied, and the petitioner went all to present evidence. In assessing the sufficiency of the evidence, all evidence is considered, and not just focused on the state's case in chief.

US v. Ellsworth, No. 05-10365 (8-9-06). The 9th (Fisher) upholds the two level adjustment in the guidelines for a prohibited possessor having a stolen gun despite not knowing the gun was stolen. This was an equal protection challenge, arguing that scienter or knowledge is required. the 9th said "no" because there is a rational basis for increasing a penalty for stolen firearms, whether the defendant knew to not. The 9th joins other circuits in this regard.

Alberni v. McDaniel, No. 05-15570 (8-8-06). The 9th remands a petition for an evidentiary hearing to determine whether there was a conflict when the petitioner's counsel cross-examined a state's witness who had been the counsel's former client. McKeown dissents, arguing that there was no prejudice under Strickland.

US v. Decoud, No. 04-50318 (8-2-06). A divided 9th panel (Callahan) affirms a drug conspiracy conviction. A wide range of challenges are quickly dealt with, the most interesting being the allowance of an agent to testify about drug "codes." the clash in the case comes over the dismissal of a juror, once deliberations had begun, because of her strong religious beliefs (scripture, Holy Ghost, spirit were all mentioned). She was also the only African American on the jury and two of the defendants were African American. the court asked if there was undue pressure, and she said "no." Later, after the conviction, the juror met a sister of one of the defendants at a bank, and was told that racial prejudice was at play. the defendants had asked for a hearing, which the court denied. The 9th affirmed the denial, holding that the court had inquired about pressure, and the colloquy excusing her was satisfactory. Ferguson, dissenting, would have a hearing. the allegations of racial bias has no place in the jury room, and any inkling of it should be explored. Here, the juror subsequently alluded to racial pressure being place don her, and comments made, and this should be explored.

Case o’ The Week: Ferguson Uncowed by Decoud, Wiretaps, Jury Racial Animus

In a disappointing decision, Judge Callahan repeats what has become Ninth Circuit boilerplate about the necessity of a wiretap. United States v. Decoud, 06 Cal. Daily Op. Serv. 8685 (9th Cir. Aug. 2, 2006), decision available here. While the Ninth continues to permit Title III to stray far from its original protections, Decoud will probably be remembered for some new bad law on jury race animus and the need (or lack of need) for evidentiary hearings on the issue.

Players: Decision by Callahan, joined (?) by B. Fletcher, dissent by Ferguson.

Facts: After a trial Decoud and co-defendants were convicted of a crack conspiracy. 06 Cal. Daily Op. Serv. at 8691-92. Six months into the investigation, the DEA got a wiretap on a co-conspirator. Id. at 6893. Wiretap “Confidential Source 1" (“CS1") had performed buys with several of the conspirators, but never with co-D “Israel.” Id. at 8696. Before trial, Israel moved for disclosure of CS1 on the theory that this lack of contact was exculpatory. Id. The district court denied this motion, id., and the Title III “necessity” wiretap challenge. Id. at 8705.

Issue(s): (Among many issues):

1. Wiretaps: “On appeal, Israel . . . claim[s] that the government failed to establish the necessity for the wiretap. Although Israel challenges the case agent’s representations concerning CS1, she does not give this court any reason to doubt those representations. As noted, the case agent’s affidavit provided that CS1 would no longer be available to make controlled drug buys because of CS1’s prison term.” Id. at 8705.

2. Disclosure of Informant/Source: “Notwithstanding Israel’s acknowledgment that the government’s confidential informant, CS1, had no contact with the appellants, Israel contends that the district court abused its discretion in denying disclosure of information about CS1.” Id. at 8709.

Held:

1. Wiretaps: “We have articulated that the necessity requirement does not mandate[ ] that the government organize the release of jailed informants before a wiretap will be authorized[.] . . . We have further reasoned that any previous success from the use of confidential informants is even less persuasive [in determining necessity] in the context of an investigation of criminal conspiracy. . . . Thus, Israel’s argument does not present a valid basis to challenge the wiretap.” Id. at 8705-06 (internal quotations and citations omitted).

2. Disclosure of Informant/ Source: “While Israel postulates that CS1 could have testified to a lack of any knowledge about her involvement in the conspiracy, CS1’s lack of knowledge on this point was undisputed and could have been elicited at trial through a stipulation or the testimony of the case agent. . . . . [S]uch testimony would have been of limited value to Israel, for the informant’s non-knowledge would have done little to refute the government’s otherwise persuasive evidence of Israel’s affirmative involvement in the conspiracy. Furthermore, the government did not rely on CS1 in any aspect of its case against Israel; CS1 was not involved in any transaction contained in her indictment, there is no dispute about the facts to which CS1 could have testified, and the involvement of CS1 in securing the government’s wiretap is insufficient to compel disclosure of the informant’s identity . . . . For these reasons, Israel has not carried her burden of proving that the disclosure of the informant’s identity is “essential to a fair determination” of her case.” Id. at 8710 (internal quotations and citations omitted).

Of Note: As Jon Sands has blogged, in Decoud the sole black juror was excused during deliberations. Id. at 8722. Post-verdict evidence of racial animus on the jury arose. Id. at 8725. The district court rejected a post-verdict race challenge without so much as an evidentiary hearing: Decoud upheld that decision. Id. Judge Ferguson’s forceful dissent to this aspect of the case is worth a read. Id. at 8733.

How to Use: For better or worse, jailing a productive snitch can go a long ways towards making the government’s Title III “necessity” showing. What is unclear from this opinion – and what surely happens in other wiretaps cases – is whether the government orchestrated the incarceration to create wiretap necessity? We’ve argued that the Title III necessity showing carries with it a “good faith” requirement: deliberate incarceration of an otherwise productive snitch would be inconsistent with this requirement.

For Further Reading: The blogsphere is underwhelmed by Decoud. As experienced practitioner Grace Suarez opines, “This case needs en banc review!! I'm actually very surprised at Judge Betty Fletcher. She usually gets things right.” See ElectricLawyer blog here.

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

Kandirakis: reasonable doubt, constitutional avoidance, and more

In United States v. Kandirakis, Massachutses District Court Judge William Young has provided a wonderful survey and critique of the post-Booker sentencing world. Weighing in at 125 pages, the opinion in Kandirakis (available here) is well worth the time for criminal defense practitioners in federal court. The last time Judge Young engaged in such an effort, he anticipated both Blakely and Blakely's eventual application to the federal Guidelines in Booker.

The opinion is full of the history of Booker and its contradictory majority opinions, the role of the Guidelines viewed through the lens of appellate review, and the roots of the Sixth Amendment. My favorite section, and the one that provides the best support for future briefing, is the review of the reasonable doubt standard at sentencing (pages 79 to 109).

Pre-Booker, courts applied the preponderance standard out of deference to the Guidelines’ suggestion in U.S.S.G. § 6A1.3 that the Commission "believes" the standard meets due process. Judge Young found that Justice Stevens’ majority Booker opinion "casts significant constitutional doubt on such blind adherence." Judge Young cites to Justices Scalia’s statement in his partial dissent: "[T]he Commission’s view of what is ‘better’ is no longer authoritative, and district judges are free to disagree – as are appellate judges." In other words, as we have been arguing since the Booker opinion came out (see reasonable doubt blogs summarized here), the slate is clean for the argument that, in the absence of a sentencing statute adopting a standard of proof, the Doctrine of Constitutional Avoidance requires that sentencing statutes be interpreted to incorporate the Fifth Amendment’s reasonable doubt standard to avoid the serious constitutional questions that inhere in increased incarceration based on facts established by less than proof beyond a reasonable doubt.

Although the arguments and precedents are nicely arrayed for our use, Judge Young is ultimately constrained by First Circuit authority: "I hear and I obey." But the Circuits have not expressly addressed the Doctrine of Constitutional Avoidance argument. We need to continue to argue for this position: the legal argument is seamless and right; and the policies underlying the reasonable doubt standard focus sentencing courts on the significance of disputed facts.

Three additional points. There is an interesting review of "pious perjury" at common law at pages 68-69: should we be arguing that the Sixth Amendment right to jury trial includes the sentencing function of "pious perjury", with the jury informed of mandatory minimum punishments, allowing a verdict on a lesser included offense to avoid draconian punishment required by the greater offense? Judge Young discusses the Ex Post Facto Clause under the advisory system at page 123-24: the court applies the Doctrine of Constitutional Avoidance to bar application of higher Guidelines promulgated after the offense given the "substantial weight" given to the Guidelines. And throughout the opinion, Judge Young cites to the Federal Defenders' letter to the Sentencing Commission by Arizona Federal Public Defender Jon Sands on a number of issues. The letter, available here, should be a routine part of our advocacy on sentencing norms. Great work by our national sentencing policy team!

Judge Young’s opinion is, at heart, a love letter to the American jury and the reasonable doubt standard. The long read is worth the effort in providing an overall framework for advocacy and citations to the most important cases in this evolving area. The work also reaffirms and stokes the defense passion to protect the Bill of Rights.

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

US v. Almazan-Becerra, No. 05-10056 (8-1-06). The 9th vacated a 1326 sentence and remanded. First, the gov't conceded that a previous 1998 conviction did not trigger a 12 level enhancement and so the extent of a downward departure from an erroneous guideline level was error and an abuse of discretion. As for a 1995 conviction, the 9th (Wallace) held that a plea and sentence to transporting OR selling OR offering to sell marijuana did not unequivocally establish that the conviction was for drug trafficking. The charge, plea and sentence all were in the disjunctive, and the 9th stressed that this lead to a modified Taylor/Shepard analysis. The defendant had stipulated to the police report in the prior and on remand the district court would have to determine if this satisfied Shepard.

Lara v. Ryan, No. 05-16055 (8-1-06). The 9th (B. Fletcher) affirms a denial of habeas where the jury was instructed properly on one theory of expressed malice and improperly one another theory of implied malice in an attempted murder case. Under state law (Calif.), attempted murder requires specific intent and express malice. The jury was incorrectly given conflicting mental standards The 9th acknowledged that it must grant relief unless there was absolute certainty that the jury convicted under the proper theory, and here the 9th had such certainty exists. The jury made explicit findings as to the premeditation of the acts. The 9th rejects the state's argument for a harmless error analysis, but still denies relief because of the certainty of the jury's verdict.

Stark v. Hickman, No. 03-17241 (8-1-06). The petitioner was charged with first degree murder. he raised an insanity defense, and so the trial was bifurcated under state practice into a guilt phase and a sanity phase. In the guilt phase, the jury was instructed that it had to presume that the petitioner was sane. The 9th held this violated due process and that the error was not harmless. The burden was shifted on an essential element (intent) and the jury was given no limiting instructions.

Navarro_lopez v. Gonzales, No. 04-70345 (7-31-06). "Moral turpitude" has been defined by the 9th as "an act of baseness or depravity contrary to accepted moral standards." Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993). Here, the 9th (Leavy) adds to this list of despicable crimes the California Penal Code 32 offense for accessory after the fact. In so doing, the 9th compares the stealthful hiding of a felon or aid, and makes the concealment or aid far worse than the offense itself. The 9th seems to focus on the specific intent nature to hinder prosecution. Dissenting with anger, Pregerson stresses that the BIA itself considers moral turpitude to be an "act of baseness, vileness, or depravity, in the private and social duties which a man owes to his fellow man and society." (8527). Pregerson goes on to note that a parent who provides aid to her child who may be a minor felon would fall into this category. The dissent finds that the legal analysis that would equate accessory after the fact it moral turpitude is faulty because the act itself may not be base or depraved to the extent that it falls away from moral law. If the legal argument isn't enough, Pregerson continues, the record of conviction doesn't meet the needs for a modified categorical approach. Finally, the equities are such, given the minor offense and the fact that the petitioner has lived here since 1984, has two US children and is married to a US citizen, that Pregerson finds it hard to believe that Congress intended to make this person ineligible for cancellation of removable.

Salviejo-Fernandez v. Gonzales, No. 04-76383 (7-31-06). The same line up as above (Pregerson, Leavy and a district court judge, Beistline) split the same, with Leavy writing and Pregerson filing a spirited dissent. This time the issues are the completeness of the Notice of removal and whether Cal. health and Safety Code 11366 for opening or maintaining a place to selling a controlled substance is an agg felony. The petitioner had been convicted of operating a drug house and of possession of drugs. The Notice he got only was for possession, and his counsel got the judge to state that the decision was only for possession. The judge ordered him removed on the basis of possession, but the BIA reversed. The second time, the gov't brought up the drug house. The petitioner was ordered removed. On appeal, the 9th said "so what" to the due process challenge, joining the 2nd and 5th Circuits in holding that the Notice only has to be removability, and does not have to include grounds for denial of relief. The 9th also holds that operating a drug house is an agg felony. "Hold on", Pregerson argues in dissent, the petitioner should know what the gov't is alleging to be grounds to remove him from the country where he has lived close to 40 years. It is not to much to ask the gov't to state the acts or conduct that violate the law that will get the petitioner kicked out rather than engaging in an artificial distinction of conduct that triggers removal (poss does not) and conduct that bars affirmative relief (drug house). As for the drug house, the state statute does not contain a mens rea element, and it is too broad. While the federal statute regarding a drug house requires knowingly open a place for the purpose of selling drugs, the state statute is much broader, and laxer, and could sweep in an owner whose renter opens a drug house if the owner is found to be reckless or negligent.