US v. Nobriga, No. 04-10169 (12-29-06). The 9th reverses a denial of a motion to dismiss an indictment for possessing a firearm after having been convicted of a misdemeanor domestic violence offense. The defendant had been convicted of a misdemeanor for abuse of a household member under a state (Hawaii) statute. He pled "no contest." He argued before the district court that the conviction did not fall under the definition of 922(g)(9)'s misdemeanor crime of violence. The trial court had held that the offense was not a categorical crime of violence, but the charging documents and plea made it so. The 9th first held that the element of "domestic relationship" did not have to be listed in the state statute. The controlling decision is US v. Belless, 338 F.3d 1063 (9th Cir. 2003). However, the 9th also held that the statute could also take in "reckless" use of force and recklessness is not an intentional use of force so as to bring in under a "crime of violence." This aligns with other circuits' interpretations. As such, the motion to dismiss should have been granted.

US v. Benz, No. 06-10167 (12-28-06). This is an Assimilative Crimes Act appeal. The defendant was convicted of drunk driving on a military base. He faced 10 days mandatory incarceration under the state law that is "assimilated" into the federal code. He plead without an agreement. On appeal, he argues that the federal court could sentence him to work release instead of ten days in "the big house." "Not so," said the 9th, because the work-release program is administered by the sheriff's office and is part of the incarceration. However, the defendant does get relief because the federal magistrate, in taking the plea, failed to follow Rule 11 in informing the defendant he faced a mandatory minimum ten days. The prosecutor putting it on the record was not the same as the court addressing the defendant and getting his acknowledgement. The case is remanded.

US v. Anderson, No. 05-30211 (12-28-06). Defendant appeals his numerous fraud and conspiracy convictions. The interesting aspects relate to his extradition from Costa Rica. He argues that his appeal of the denial of his Costa Rican citizenship application was still pending, and until that was resolved, there is no jurisdiction. The 9th rejected this argument, finding that the process worked and that the treaty did not have an exception for a pending citizenship plead. Counts of money laundering and conspiracy to launder are remanded, however, for the district court to determine whether such statutes are covered in the Costan Rican code so as to fulfill the "dual criminality" requirement in extradition (the extradition is for a criminal offense defined in both countries). The 9th discusses whether the defendant waived the issue because it was only raised in his reply brief and not at trial or in his opening brief. The 9th holds that he did waive the issue, but that interests of justice permit consideration. Such interests are here because the extradition agreement was only translated from Spanish at the time of the appeal, and some pages may have been missing. The district court still has to decide the issue.

US v. Gomez, No. 06-30288 (12-28-06) . The 9th holds that disqualification from the "safety valve" is not cruel and unusual punishment under the 8th amendment.

US v. Luong, No. 01-10468 (12-26-06). This concerns "roaming charges" in the context of wiretapping. 18 USC 2518(3) authorizes a judge to authorize interception of phone calls within the territorial jurisdiction of the court. What happens, though, if the phone is mobile ("Can you hear me now?") and the area code is outside the territorial jurisdiction. The defendant here had a cell phone with an E.D. Ca (Sacramento) number but was allegedly conducting criminal activities in the Northern District (San Francisco). The activities involved robberies of computers and heroin trafficking. The 9th, joining the other circuits, holds that a court has jurisdiction because the intercepted phone call was first heard by the government within the court's district. The case revolves around what constitutes "interception." A subsection defines interception as the "aural ...acquisition" but does not say where it has to be. The 9th interprets the statute as having the interception occur where the tapped phone is and where the law enforcement officers first overhear the call. This comports with the 2nd, 5th and 7th circuits.

US v. Lee, No. 05-10478 (12-27-06). Defendant was charged and convicted on counts of involuntary servitude in the District of Hawaii although the offense took place in America Samoa. In a jurisdictional and venue challenge, the defendant argued that jurisdiction was vested in America Samoa's court and also that venue was improper in Hawaii. The 9th held that Samoan jurisdiction does not trump federal jurisdiction, and that title 18 codes can still be prosecuted in federal courts. The American Samoan delegation of authority and constitution does not supplant federal jurisdiction. As for venue, American Samoa is still a territory and is not "listed" as a district under statute and, therefore, bringing the case in the District of Hawaii constituted proper venue.

US v. Sandoval-Mendoza, No. 04-10118 (12-27-06). This case presents two helpful holdings in the context of drug charge with the defense of entrapment. First, the district court erred in prohibiting defendant from discussing his cross examination with his lawyer during the overnight recess while the cross was still ongoing. Such a prohibition violated the Sixth Amendment right to counsel. The Supremes held as much in Geddes. The Supremes also held in Perry that a court could prohibit discussion of a cross during a short (15 minute) recess. The prohibition here, going only to the cross and not other testimony, still violated the Sixth because it was all intertwined. The 9th did not have to decide the issue of prejudice because the district court also abused its discretion in excluding expert testimony of defendant's medical doctors. The doctors would testify that the defendant had a tumor the size of an apricot next to his pituitary gland, and the tumor pressed on the frontal lobe and affected cognitive abilities and intelligence. The court's decision that this had nothing to do with entrapment was error, as well as the reasoning that it would take too long. The jury should have heard this, and will on remand.

US v. Baldrich, No. 05-50676 (12-27-06). The 9th holds that the "secret" sentencing recommendation of probation officers does not have to be disclosed under Fed R Crim P 32 so long as all the factual assertions are. There is also no constitutional due process violation. The 9th basically follows precedent (1985) and other circuits in so holding, reasoning that the recommendation is different from the facts asserted (really?) and that it is protected. Due process is not violated because all the facts are disclosed. The 9th also holds that the right to effective counsel is not violated by the third point of acceptance under 3E1.1(b) being contingent upon a government motion.

Editorial vent: The 9th's decision that disclosure of the probation recommendation is not required does track Rule 32 but fails to adequately assess the importance of the recommendation, or how inadequate just the disclosure of the facts are when it is the highlighting of the facts that makes the difference. The purpose of "confidentiality" came from a pre-guideline age, where probation officers might have had to supervise the same offender. Now, with probation greatly reduced, and separate presentence writers, this seems greatly reduced. Should the defendant not see all the information that is being used to punish him? Is that fair? What is gained from the secrecy? In those districts that allow disclosure, a better sentence results and the process is streamlined as many times the defendant agrees with the recommendation. As a policy matter, the recommendation should be disclosed.

Case o' The Week: Ninth Keeps Probation's Secrets, Baldrich

New Judge Sandra Ikuta (left) isn't bothered by secret Probation sentencing recommendations in United States v. Baldrich, __ F.3d. __, Slip. Op. 19981 (9th Cir. Dec. 27, 2006), opinion available here. This decision is out-of-sync with the modern (enlightened) practice: seems the majority of 9th Circuit district courts routinely disclose full PSRs (including recs) before sentencing.

Players: Hard-fought appeal by L.A. AFPD Davina Chen.

Facts: Baldrich pleaded open to six counts of bank robbery the day before trial. Id. at 19985. District Judge Otero refused to disclose the “confidential” PSR recommendation at sentencing, though he described it and went below the recommended high-end. Id. at 19986. The court also refused to give the third acceptance offense-level reduction without the government’s recommendation. Id. [Note: Amended Guideline § 3E1.1(b) permits the government to decide whether to move for the offense-level reduction for acceptance of responsibility].

Issue(s): “On appeal, Baldrich raises two challenges to these rulings. First, he argues that the district court violated his right to due process at sentencing by denying his motion to disclose the probation officer’s confidential sentencing recommendation. By the same token, Baldrich argues that Rule 32(e)(3) of the Federal Rules of Criminal Procedure is unconstitutional to the extent it allows the court to withhold the recommendation. Second, he argues that the district court’s denial of his motion to reduce his offense level under section 3E1.1(b) of the Sentencing Guidelines violated his constitutional rights to proceed to trial and to effective assistance of counsel.” Id. at 19985.

Held: “We reject Baldrich’s first argument because the district court’s compliance with Rule 32’s requirement to disclose factual information relied on in sentencing satisfies the defendant’s due process rights. See United States v. Gonzales, 765 F.2d 1393, 1398-99 (9th Cir. 1985). We reject Baldrich’s second argument because the incentive provided by section 3E1.1(b) to plead guilty in a timely manner did not violate Baldrich’s constitutional rights. See United States v. Espinoza-Cano, 456 F.3d 1126, 1137-38 (9th Cir. 2006).”

Of Note: Why is full disclosure of the PSR still an issue? Central District AFPDs report that eighteen of the twenty-two courts there disclose the full PSR, including the recommendations. The Northern, Eastern and Southern Districts of California all have full disclosures, as do the districts of Arizona and Oregon. The four holdout judges in LA should learn from their more enlightened brethren. (A little dicta nudge from the Ninth along those lines would've helped -- where's Tashima's helpful concurrence encouraging disclosure?).

That cursed third acceptance point issue is still hanging around: here, Judge Ikuta relies on Espinoza-Cano to reject constitutional challenges to the fox's control of the henhouse. A petition for rehearing of Espinoza-Cano was filed on August 18 and has yet to be decided – is the Ninth ever going to get around to correcting that awful opinion?

How to Use: Baldrich is an admirable fight on bad facts. First, the narrow holding of the case is that on these facts, there was no due process violation from non-disclosure. The panel reviewed the PSR and concluded that there were no facts that hadn’t been disclosed to the defense – plus the district court orally disclosed the recommendation at sentencing, and low-balled it! Id. at 19991.

On the third acceptance level issue: the defendant waited until to see the whites of the jury’s eyes before pleading – hard to make an equitable argument about losing that third acceptance point, since the government obviously had to prepare for trial. In other words, the dual holdings of Baldrich should be read in the context of these narrow facts – this is not a sweeping opinion announcing new rules.

For Further Reading: Judge Sandra Ikuta is one of the newer Bush appointees, and is replacing Judge Browning. She was confirmed on June 19, 2006. See nomination article here. A former Kozinski and O’Connor clerk, she’s a Cal Bear (Phi Beta Kappa) and UCLA Law alum. Id. She also has a Masters in Journalism from Columbia. Id. She is, safe to say, the only former editor of a marital arts magazine – “Inside Kung Fu” – now on the appellate bench. See article here.

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

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Case o' The Week: Berzon unimpressed with Kozinski's Combs-over

The defense bar must have been naughty this year -- Kozinski left a big lump of coal in our stockings with the disappointing Combs decision. United States v. Combs, __ F.3d __, 2006 WL 3704777 (9th Cir. Dec. 18, 2006), decision available here. In a case of first impression, the Ninth limits appellate review of a district court's "first pass" on Ameline remand to whether the court knew it had Booker discretion. (In other words, effectively no review at all).

Players: Kozinski authors, joined by Tallman: Berzon dissents.

Facts: On an Ameline remand, an Alaskan district court concludes that it wouldn’t have given a different sentence under advisory guidelines. Id. at *1. [This is the plain error “first pass” review set forth in the Ameline en banc decision].

Issue(s): “On appeal, defendant challenges the district court’s . . . determination that defendant’s sentence would have been the same under an advisory Guidelines system.” Id. “Defendant argues that the district court ignored [§ 3553(a)] provisions by failing to take into account information regarding his educational and vocational skills, mental and emotional conditions, drug and alcohol dependence, and lack of guidance as a youth. This argument requires us to consider an issue of first impression: By what standard to we review a district court’s determination, made during the course of an Ameline remand, that it would have imposed the same sentence under an advisory Guidelines system?” Id. at *2.

Held: “[T]here is an issue we can consider that bears on the reasonableness of the sentence [when the district court determines that it would have imposed the same sentence under an advisory Guidelines system]: Whether the district judge properly understood the full scope of his discretion in a post-Booker world . . . . A more demanding inquiry would turn every Ameline remand into a full-blown resentencing, and would thus be contrary to Ameline’s central holding that defendant whose sentences are being reviewed for plain error are entitled only to a limited remand.” Id. at *3.

Of Note: Berzon offers a vigorous, and persuasive, dissent. Id. at *4. (Aside: this must have been an interesting conference, with these three strong personalities on the panel). Berzon notes that the Ameline en banc court did not limit Booker reasonableness review in the way concocted by the majority, and she questions whether the district judge really understood his full Booker discretion on this Ameline remand. Id. at *4-*6.

How to Use: Recall that the Ameline en banc punted one prong of plain error review back to the district courts, which created the mess that spawns opinions like Combs. Learn from this recent history, and preserve objections to everything in the sentencing context – including the limited Ameline remand “first pass” procedure. While it’s doubtful that Rita and Clairborne will directly overrule Ameline, who would have predicted our current state of affairs three years ago? Kozinski, Tallman, and Combs are potent illustrations of where failing to object – and plain error review – will get you.

For Further Reading: As reported earlier, the Ninth has held-off on deciding Zavala/ Carty until the Supremes decide Rita and Clairborne – although this didn’t, apparently, dissuade this panel from acting right away. The best site thus far on Rita and Clairborne is hosted by the New York Council of Defense Lawyers. See page here. Here you can find all of the amicus briefs as well as a study that – brace yourself – finds that appellate courts universally don’t reverse in-guideline sentences for reasonableness review, but do reverse below-guideline sentences. See amicus brief here.

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


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US v. Combs, No. 05-30486 (12-18-06). The 9th (Kozinki joined by Tallman) wrestles with the standard of review when, on an Ameline plain error remand, the sentencing court said, "naw, the sentence wouldn't have been different." Since it was plain error review (the sentence was prior to Booker), the 9th shrugs and says "tough." The standard of review is absolutely deferential -- if the sentencing judge said he or she would not have changed the sentence, so be it. That decision is not reviewed for reasonableness. Because the sentence was not challenged in the appeal, no new claims could be raised once the door slammed on review. Dissenting, Berzon calls the majority's interpretation "peculiar" and that its interpretation of "reasonableness" defies common sense, and also runs counter to Amerline's holding itself. Berzon argues that the purpose of Ameline was to give pre-Booker defendants the same review for reasonableness as post-Booker defendant's. Berzon also disagrees that the sentencing court applied the right standard is saying that the sentence would not have been "materially" different. Berzon's point is that any difference matters. The court did not understand the full scope of his discretion.

Case o' The Week: Ninth Takes the Luong Way Home, "Exigent" Facts in Search Affidavit

The Ninth thinks that one of 9,000 other LAPD Officers could type an affidavit when Officer Lori Fishburn struggled with a broken thumb. See United States v. Luong, __ F.3d __, 06 Cal. Daily Op. Serv. 19331 (9th Cir. Dec. 12, 2006), opinion available here. That is the only questionable assumption in an otherwise great opinion on Leon and the ever-expanding "good faith" loophole to the warrant requirement.

Players: Another great Ferguson decision.

Facts: The DEA tipped off the LAPD that a suspected meth chemist – “Jao” – was flying in from Hong Kong. Id. at 19335. The officers’ (state) search warrant described surveillance from LAX, Jao’s meeting with defendant Luong, and a trip to a local residence. Id. at 19335-36. The pair also went to Home Depot and bought an adapter for a red high pressure house, then returned to the residence. Id. at 19336.

LAPD officer Lori Fishburn wrote the affidavit: she had a broken thumb and a sprained wrist, and later testified this impacted her ability to type. (?!?) Id. at 19342. She also explained to the state magistrate – but not in the affidavit – that the DEA tip came from a DEA wiretap that the agency didn’t want to divulge. Id. at 19338. The search revealed a meth lab and lead to the recovery of over sixty pounds of meth. Id. at 19336. The state court suppressed, so the feds (despicably) took it federal: when the district court also suppressed, the government appealed.

Issue(s): The warrant lacked probable cause, and a broken thumb wasn’t an exigent circumstance. (The Court questionably asserts that other LAPD officers could type). Id. at 19342. Given these facts, may the Court “consider evidence of facts not contained in the affidavit to demonstrate that the officers acted in good faith?” Id. at 19342.

Held: No. “On the facts of this case, where the underlying affidavit is entirely lacking in indicia of probable cause, we reject the government’s invitation to look to facts orally conveyed to the magistrate in order to generate the colorable theory of probable cause. Leon clearly and unequivocally states that when the affidavit itself is entirely lacking in indicia of probable cause, it cannot be said that the officer acted in good faith on a warrant that issues. That is the precise situation we have in this case.” Id. at 19343.

Of Note: There’s a heated (and unpersuasive) dissent by Judge Callahan. Consider the broader impact of this case, not discussed in the decision. The DEA had probable cause on Jao – it had a wiretap in Hong Kong. It would have been easy to include this information in writing in the search warrant, and ask that the info be placed under seal in the affidavit if necessary. Instead, LAPD and DEA tried to have their cake and eat it too – “orally” conveying the wiretap info, yet hiding that fact from the defense.

DEA may, in fact, have violated the disclosure requirements of Title III – 18 USC § 2518(9) requires disclosure of wiretap orders and applications within ten days of use in a hearing. This is a classic, slimy, federal investigation – using state officers as shills to “orally” convey wiretap info, without complying with the Title III statute. The feds did the same in the N.D. Cal.: in Stepney, they intentionally disguised the identity of a wiretap as an ‘informant’ because “disclosing the existence of the wiretap to the reviewing [state] magistrate in any manner would jeopardize the confidentiality of the wiretap and the federal investigation.” United States v. Aisha McCain, 271 F.Supp.2d 1187, 1192 & n.3 (N.D. Cal. 2003). That rationale was, to say the least, poorly received by former state judge, now federal District Judge, Marilyn Patel.

How to Use: The defense bar will argue that this is a broad new bright line rule: no exigent facts can justify a lack of P.C. in an affidavit. The government will counter that this new rule is limited to search warrants where there was no P.C. in the application. We will be litigating this issue in the future. Nonetheless, Luong is now the lead defense case for limiting the corrosive impact of Leon on the Fourth Amendment warrant requirement.

For Further Reading: Last week Callahan found herself on the losing end of two ‘son decisions; Luong, with Ferguson, and the remarkable Carrington decision, by Pregerson. See post on Carrington here. (Contrast Callahan's majority decision, and Ferguson's dissent, in Decoud, see blog here). Despite this tension with her more liberal brethren, Judge Callahan still opposes conservative moves for a circuit split. See article here.

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

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US v. Juvenile Male, No. 06-30270 (12-14-06). A juvenile defendant had been placed on probation for aggravated sex abuse until his 21st birthday. He violated the terms of probation, and, upon revocation, the court sentenced him "pursuant to the Sentencing Reform Act" to his 21st birthday. The 9th vacated and remanded. The 9th (Smith joined by Goodwin and Fisher) held that once the juvenile was sentenced under the Juvenile Delinquent Act, he stays under it. The court had to fashion a sentence under the JDA.

Congratulations to AFPD Steve Babcock of D. Mont.

US v. Boulware, No. 05-10752 (12-13-06). This a white-collar tax case. The 9th had remanded the previous conviction and this was the appeal from the retrial. The interesting issue is the contours of the "return of capital" defense. Defendant argued that he be permitted to argue that the money he took from the firm could have been returns of capital; the district court ruled that it had to show that they were in fact returns of capital. The district court precluded the defense. The 9th, using the Miller test, agreed with the district court. The defendant had to show that t here was a trial. The 9th also held that a previous state judgment, excluded from evidence in the first trial, and favorable to the defendant, was properly admitted in the second and there was no error in instructing the jury that it was not binding on the issue of "return of capital." Thomas, concurring, would adopt the 2nd Circuit's approach in a "return of capital" defense, that would apply in both civil and criminal cases so long as the diversion itself was not illegal. The Miller approach requires a clear distinction of return of capital rather than asking whether the return was legal in the first place.

US v. Peters, No. 06-50508 (12-12-06). Can a district court order that Peters' weekend sentence be borrowed to pay BOP's pall? The 9th said "no." The defendant here was on two years probation for assaulting a passenger on a plane when he was intoxicated (such a long flight). Part of the sentence required weekends in jail for the first six months and no drinking. Defendant violated that by blowing a .263 and then absconding from a halfway house. At sentencing for the probation violation, the court gave him 4 months custody and ordered credit for time served pretrial, but refused credit for time spent in custody during the probationary period (the weekends). The 9th held that the Supreme Court in Wilson clearly stated that awarding of credit was a BOP administrative function and that courts cannot order it. As such, the district court could not order credit for the weekends, nor award credit for time in custody pretrial.

US v. Luong, No. 05-50090 (12-12-06). The Luong and short of it: Leon's good faith exception does not prevent suppression for lack of probable cause. This case does contain a great excuse for lack of probable cause: the warrant was short because a police officer's broken thumb and sprained wrist prevented typing. Okay, maybe that wasn't the whole reason, but there was not much else. The police got a tip that the suspect, who was a chemist, was flying in from Hong Kong to LAX to set up a drug lab. The police followed another suspect who met with defendant, went to a house, looked around, and went to Home Depot to buy a hose. (A green lawn would raise the appraisal value?) The police had a lot of suspicion: the other suspect was being investigated for drugs; hoses are used for meth production; meth labs are in residences; the backyard led to the garage; etc. However, the warrant was pretty bare bones (the suspect chemist came, looked at a house, bought a hose, and a hose is used for vacuum pumps in meth labs). The search occurred and lots of meth was found. The only problem was lack of probable cause. The state courts suppressed, and so the Feds ran to district court, arguing the Leon "good faith exception." The district court found that the cops should have realized there was too little presented even for a good faith exception, and the 9th (Ferguson joined by B. Fletcher) agreed. The 9th stressed that all the post-warrant explanations -- backyards, hoses, reliability of informant, etc. -- could and should have been put in the warrant and affidavit (hence the excuse of the broken thumb and the limited typing...although there were various phone calls and others could have typed). In dissent, Callahan argues that good faith was met, and that the police were merely executing what had been blessed by a magistrate.

Carrington v. US, No. 05-36143 (12-13-06) & Tillitz v. US, No. 05-36144 (12-13-06). In an extraordinary opinion, the 9th (Pregerson joined by Noonan) recall mandates in two drug cases that became final 15 and 6 years ago. In these cases, the judge gave lengthy (approx 30 year) sentences because of the mandatory nature of the guidelines, but decried the shackling of discretion. After Booker, the defendants filed post-conviction motions (writs of audita querela because of unconstitutional sentences). The judge denied but asked sua sponte for the 9th to recall its mandate. In these opinions, the 9th agrees that post-conviction relief is not available and is foreclosed by precedent. However, it does accept the district court's invitation to recall the mandates. The 9th emphasized that these were extraordinary circumstances in which the court had foreshadowed the Booker decision and had railed against the guidelines, and that it was clear that the judge would grant a different sentence in his impassioned plea to the 9th to set matters right. The 9th finds that this falls under the Crawford test for recalling of mandates and so issues.

Vigorously dissenting, Callahan argues that these cases do not present the extraordinary circumstances that allow for recalling of a mandate. Post-conviction relief is foreclosed by precedent (Cruz) and Booker by itself does not justify a recalling of a mandate (King). These cases are long settled (15 and 6 years), and present no extraordinary circumstances vis-a-vis other defendants being sentences under the guideline regime at the time. Callahan cautions that the Supremes had reversed a previous grant of mandate in Calderon. She concludes that the decision granting relief conflicts with precedent, conflicts with other circuits, and is abuse of the court's inherent authority.

This is a case that could have widespread impact if district court judges had attacked the guidelines in previous sentencings and now start asking for recalls of mandates. It also demonstrates that the conscience of Booker nonetheless made cowards of the courts when it came to retroactive relief.

Congrats to AFPD Russ Leonard of W.D. Washington (Tacoma).

US v. Zepeda-Martinez, No. 05-50562 (12-13-06). In U.S. v. Cardova-Sandoval, 462 F.3d 1090 (9th Cir. 2006), the 9th applied Apprendi in 1326 cases to the use of a removal subsequent to a prior conviction unless admitted by the defendant or found beyond a reasonable doubt. Here, the 9th considers whether harmless error review applies when the issue was raised below. Using the framework of Neder v. U.S., and Washington v. Receuenco, 126 S.Ct 2546 (2006), the 9th concludes it does. The test is whether, beyond a reasonable doubt, the result would have been the same absent the error. The 9th finds that the record contains uncontroverted and overwhelming evidence of defendant's removal.

Case o' The Week: Safety Valve still safe, Cardenas-Juarez

Senior Judge David R. Thompson leaves his bankruptcy field for a welcome foray into criminal law in United States v. Cardenas-Juarez, __ F.3d __, No. 05-30250, Slip op. at 19309 (9th Cir. Dec. 8, 2006), opinion available here. Impressive advocacy by the Montana Federal Defender (and the government's concession that the FPD was right) establishes that the Safety Valve survives Booker.

Players: Defender Tony Gallagher, AFPDs David Avery and Evangelo Arvanetes with an important win from the Montana FPD (at least, important for Montana).

Facts: Cardenas-Juarez was arrested and pleaded guilty to possession for sale of over 500 grams of cocaine. Id. at 19312. District Judge Sam Haddon asked the parties for briefing on whether the “safety valve” statute required sentencing within the guidelines. When both parties said yes, the Court held – over both parties’ objections – that an “advisory” safety valve statute was trumped by the “mandatory” mandatory-minimum statutory sentence, and gave the defendant the mand-min five year sentence . Id. at 19313.

Issue(s): “[T]he district court concluded that . . . Booker rendered the statutory safety valve of 18 U.S.C. § 3553(f) advisory, and therefore it was ‘trumped’ by the mandatory minimum set forth in 21 U.S.C. § 841.” Id. at 19312.

Held: “We now hold that the safety valve statute, 18 U.S.C. § 3553(f), survives Booker to require district courts to impose sentences pursuant to the advisory Sentencing Guidelines. This is consistent with congressional intent both to provide relief for less serious offenders and to reduce sentencing disparity. When the statutory safety valve requirements of § 3553(f) are met, district courts still must consult the Guidelines and take them into account when sentencing, even though they now have the discretion to impose non-Guidelines sentences.” Id. at 19316 (internal citations and quotations omitted) (emphasis in original).

Of Note: Montana District Judge Haddon, a W. Bush appointee, is frequently at the eye of Apprendi maelstroms. In United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), Judge Haddon stated, “It is the position of this court in this matter, as it is in all such cases, that the facts as recited in the presentence report are prima facie evidence of the facts set out there; that if the defendant challenges the facts set forth in the presentence report, it is the burden of the defendant to show that the facts contained in the report are either untruthful, inaccurate, or otherwise unreliable.” Ameline, 409 F.3d at 1075 (emphasis added).

Of course, Judge Haddon’s position sparked the en banc rebuke that “when the government seeks an upward adjustment, it bears the burden of proof. Here, the district court also erred by placing the burden of proof on the defendant to disprove the upward adjustment recommended in the PSR and sought by the government.” Id. at 1086 (emphases added).

How to Use: This is an important decision in Montana: apparently Judge Haddon has applied his novel theory to disqualify many other Safety Valve-eligible defendants. Considering that the government agreed with the defense in this Montana case, odds are that this issue hasn’t come up much outside of Big Sky country.

For Further Reading: (Full disclosure – this is a plug for two friends and co-authors). Arizona FPD Jon Sands and AFPD Jane McClellan anticipated many of these complications between Safety Valve and Booker years ago. In The Hedgehog, the Fox, and the Guidelines: Blakely’s Possible Implications for the Safety Valve, the duo described the “hall of mirrors” presented by the statute and the Supreme Court decision. A free copy of the article can be found at Berman’s blog here. The article is worth a close read, particularly in light of the Ninth’s recent punt in Zavala/Carty and the Booker uncertainty pending the Supreme Court's action in Claiborne and Rita. See Professor Berman's blog on Zavala/Carty stay here.


Steven Kalar, Senior Litigator. Website available at www.ndcalfpd.org

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US v. Cardenas-Juarez, No. 05-30250 (12-8-06). In a significant decision regarding "safety valve," the 9th reaffirms that the "safety valve" survives Booker (Thompson joined by Nelson and Paez). If the safety valve is triggered, the court must consult the guidelines, but they are still advisory. Mandatory minimum sentences are congressional, and are not affected by Booker. The safety valve, 18 USC 3553(f), is also congressional, and is legislatively designed to give relief to less culpable offenders if requirements are met. Booker did not change this. The court erred in finding that the safety valve was only advisory. The sentence is vacated and remanded.

Congratulations to the Federal Defenders of Montana, Tony Gallagher, David Avery, and Evangelo Arvanetes.

Federal Defender Issues In Need Of A Grant Of Certiorari

The SCOTUS blog has solicited input on areas where the Supreme Court ought to be doing something differently (here). Professor Berman has long thought non-capital criminal issues need more attention (here). Although I have been glad to see grants of certiorari on issues such as simple possession of drugs as an aggravated felony (Lopez), retroactivity of post-Apprendi Sixth Amendment jurisprudence (Burton), and the presumption of reasonableness morass (Claiborn), there are several areas that involve either huge numbers of cases, significant conflicts in the lower courts, or both, that need to be addressed as soon as possible.

My three nominations for areas Most In Need Of Cert are: 1) the three-way Circuit split about denying Fourth Amendment rights to persons charged with Illegal Reentry, which is now one of the most frequently prosecuted federal felonies; 2) the Bureau of Prisons’ interpretation of the federal good time statute, which Justice Stevens found was probably wrong and merited further study, and which costs well over 36,000 years in federal over-incarceration; and 3) any of the many issues where the Circuit courts are refusing to follow the Supreme Court’s holdings in Haley and Shepard that the Doctrine of Constitutional Avoidance must be applied in interpreting non-specific statutes – such as the Armed Career Criminal Act, the amended immigration statute, and the sentencing statutes on burden of proof – on the scope and application of Almendarez-Torres and the post-Apprendi Sixth Amendment cases.

The Fourth Amendment Allows No Exception For Criminal Immigration Prosecutions.

Several of the Circuits with the greatest volume of illegal reentry cases have allowed trial courts to introduce the products of illegal searches and seizures without requiring the government to prove an independent source. Both intra- and inter-Circuit conflicts have exposed irreconcilable fault lines running through the application of the Exclusionary Rule in illegal reentry prosecutions. One District Court identified three clusters of Circuit approaches (United States v. Juarez-Torres, 2006 WL 2129037 (D.N.M. 2006)); the Ninth Circuit denied en banc review in Ortiz-Hernandez with nine judges signing on to a dissent identifying both the basic analytic error that led to the conflict and the threat to civil liberties of the government position.

The legal archaeology leads back to the Supreme Court opinion in Lopez-Mendoza, the case in which the Court decided that the Exclusionary Rule does not apply in civil immigration proceedings. The Court used loose language in rejecting, under Frisbie v. Collins , a claim that an illegal seizure bars any further immigration proceedings against the person. The sentence -- "The 'body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as the fruit of an illegal arrest" -- has morphed in some jurisdictions into an exception to the Exclusionary Rule in criminal cases regarding evidence of a person's identity for use in criminal immigration prosecutions. The argument that the normal Exclusionary Rule applies in the criminal immigration context is set out here and here in petitions that were denied this fall. The Tenth Circuit recently filed a split opinion in Olivares-Rangel demonstrating the continued need for Supreme Court guidance.

The Circuits all claim to base their conflicting views on Lopez-Mendoza, so only the Supreme Court can finally resolve the question. The issue should also be accepted for review because ten times as many illegal reentry prosecutions are being filed annually than ten years ago. This issue is potentially involved in many of the over 15,000 immigration prosecutions in 2004 (22.5% of all federal sentences). This issue seems perfect for certiorari, with the Circuits scattered, the large number of cases affected, and the need to protect civil liberties by eliminating a Fourth Amendment double standard.

The Good Time Statute Requires Calculation Based On The Sentence Imposed, Not Time Served.

Last year, a federal district judge in Texas joined two other district judges who had found that the BOP has misinterpreted the federal good time credit statute, thereby requiring prisoners to serve seven extra days for every year of their terms of imprisonment. After reversal in the Fifth Circuit, the case came before the Supreme Court on a petition for certiorari. In a Statement Respecting the Denial of Certiorari, Justice Stevens complimented the "thoughtful opinion" in the Texas district court and indicated the merit of the prisoners’ postition:

"[B]oth the text and the history of the statute strongly suggest that [the good time credit statute] was not intended to alter the pre-existing approach of calculating good-time credit based on the sentence imposed. . . .[T]he question has sufficient importance to merit further study, not only by judges but by other Government officials as well."

Although the "pre-existing approach" resulted in a maximum of 15% good time credits against the sentence imposed, instead of the BOP's maximum of 12.8%, Justice Stevens found the lack of a Circuit split determinative.

This issue is of exceptional importance and should be addressed regardless of a Circuit split. Resolution of the issues will affect the actual time served of over 95% of federal prisoners, involving thousands of years and hundreds of millions of dollars in prison expenses. Given the calibration of the Sentencing Table to the 15% rule, federal prison sentences are 2.2% higher than called for by the Sentencing Commission (as blogged here). In an unprecedented step, the Federal Public and Community Defenders for every District signed on to an amicus curiae brief asking the Court to resolve this question of unprecedented importance.

And there are the continuing costs of litigation (not to mention the $346 million in over-incarceration costs and additional $66 million with each new year). We have accepted the Justice Stevens challenge and are preparing the third wave of litigation (the first established that the good time statute is ambiguous, culminating in Pacheco-Camacho; the second sought to develop a split on the statute from the three district court opinions). This should not be necessary given that litigation over violations of the Administrative Procedure Act (as set out in the filing linked here) would be mooted by simply following the plain language of the statute or, at worst, applying the rule of lenity to an ambiguous penal statute (as outlined in the Mujahid petition here, which also traces the inconsistencies in the Circuit approaches).

The most recent purely statutory challenge is coming to the Court from the Tenth Circuit in Wright. The Court should take this opportunity to settle the good time statute's construction once and for all.

The Lower Courts Are Not Following The Supreme Court’s Directions On The Doctrine Of Constitutional Avoidance.

Most federal statutes say nothing about pleading and proving factors that increase sentences. With Justice Thomas’s renunciation of his vote in Almendarez-Torres, a majority of Justices apparently believe that all facts that increase the statutory maximum must be pleaded and proven in compliance with the Fifth and Sixth Amendments. Although Almendarez-Torres is only a Fifth Amendment case (the opinion expressly states it takes no position on means of proof), Circuit courts routinely extend its holding to the sequence and characteristics of prior convictions.

Since Apprendi, hundreds, probably thousands, of cases have been litigated with a direct claim that Almendarez-Torres is no longer good law. As reflected by the interchange between Justice Thomas and Justice Stevens in Rangel-Reyes, the Court is not eager to revisit Almendarez-Torres. Nevertheless, the issue arises so often that some Circuits act as though there is a rubber stamp with that case name to affix near "Affirmed".

Both litigators and courts have failed to use a tool that avoids direct confrontation with Almendarez-Torres and has been approved by an overwhelming majority of the Court: application of the Doctrine of Constitutional Avoidance to Almendarez-Torres where the underlying statute does not expressly address questions of pleading and proof. In both Haley and Shepard, the Supreme Court found that application and extension of Almendarez-Torres raised serious constitutional questions to be avoided if possible (as briefed here on the ACCA).

With no reference to the Doctrine of Constitutional Avoidance, the Fourth Circuit has split on whether enhancements under the Armed Career Criminal Act requires compliance with the Fifth and Sixth Amendments. Myriad illegal reentry cases are resolved by blind adherence to Almendarez-Torres despite the availability of a statutory argument to avoid serious constitutional doubts, as briefed here. As Justice Thomas put it in his dissent from denial of certiorari in Rangel-Reyes, "And until we [review Almendarez-Torres], countless criminal defendants will be denied the full protection afforded by the Fifth and Sixth Amendments, notwithstanding the agreement of a majority of the Court that this result is unconstitutional."

The most important place for application of the Doctrine of Constitutional Avoidance is on the standard for proving guidelines enhancements. The sentencing statutes provide no guidance on this question. Nevertheless, prison sentences are routinely enhanced by a standard of less than a reasonable doubt when the statutes leave the courts free to interpret them to require the traditional standard of proof for depriving a person of liberty (as blogged here and here).

A grant of certiorari on any of these issues would alert lower courts to the availability of the alternative manner to resolve the post-Apprendi doubts about the scope of Fifth and Sixth Amendment protections. The large number of affected cases, the liberty at stake, and the chronic failure to apply the holdings of Haley and Shepard warrant the Court’s intervention without delay.

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

Lopez: the Supreme Court reverses Ninth Circuit law on possession as an aggravated felony

The Supreme Court issued an 8-1 decision today authored by Justice Souter holding that state convictions for simple drug possession, whether felony or misdemeanor, do not constitute an "aggravated felony" under the immigration statutes and, therefore, the federal sentencing guidelines. In Lopez, the Court found that the statutory incorporation of section 924(c)'s definition of drug trafficking crime foreclosed application to simple drug possession, which is a misdemeanor under federal law. The Court's reasoning depended on the plain meaning of the statute.

The Ninth Circuit law stems from a split decision in Ibarra-Galindo in which, with Judge Canby dissenting, the court found that felony state convictions for simple possession were included as drug trafficking crimes for the purposes of determining whether an illegal reentry sentence should be enhanced for conviction of an "aggravated felony" under immigration law. The Ninth Circuit then found that, in the immigration context, simple possession is not an "aggravated felony" in Cazarez-Gutierrez. Then, in Leocal in footnote 8, the Supreme Court said that the definition of "crime of violence" under the immigration statute on "aggravated felony" had to have the same meaning in both sentencing and immigration contexts (as blogged here).

Lopez is an immigration case but the case resolves the sentencing construction, both in the text of the opinion and by its mode of analysis. Although the Court dismissed as improvidently granted the companion criminal case, the Court stated that the purpose of granting certiorari was to resolve Circuit conflicts "about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the [Controlled Substances Act]." Then, in footnote 3, the Court included Ibarra-Galinda as well as a recent Sixth Circuit criminal case (blogged here) rejecting the Ibarra-Galindo position.

Under the Ninth Circuit opinion in Miller v. Gammie, intevening Supreme Court authority that undermines the reasoning or mode of analysis of prior cases renders them devoid of precedential value. The Lopez Court's plain meaning analysis supersedes the construction in Ibarra-Galindo. The Court expressly refers to the sentencing consequences of the statutory interpretation on page 2 of the opinion. And on page 10, the Court finds support for the plain meaning analysis in the interests in uniformity in both immigration and sentencing contexts: "Finally, the Government's reading would render the law of alien removal, . . . and the law of sentencing for illegal entry into the country, . . . dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose."

We need to be sure to immediately review our cases for clients who are being disadvantaged based on simple possession convictions. We also need to review files for clients who are actually innocent of sentence enhancements and bring collateral actions for relief. Remember that, under Bousley and other Supreme Court precedent, the statute has always meant what the Supreme Court construed, so there should not be retroactivity issues.

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

Case o' The Week: Righting Romm(s), Kuchinski's Cache

Judge Fernandez is forgiven for an opinion that reads like a Scrabble tournament, when he uses his SAT vocabulary to bring a little reality back to child porn sentencing. See United States v. Kuchinski, __ F.3d __, No. 05-03607, Slip op. at 18789 (9th Cir. Nov. 27, 2006), opinion available here. Although the case has a disappointing and unpersuasive endorsement of the despised "conditional plea" procedure in Rule 11, it does recognize that images in the internet cache are not readily available to most users.

Players: Fernandez neatly parries the government’s allonge. Slip op. at 18797.

Facts: Kuchinski pleaded guilty to possession of child porn. He attempted to enter a conditional plea to an additional count of receipt of child porn, but the government refused to permit it. Id. at 18795. Between fifteen to nineteen thousand images of child porn were on his computer. Under 1,500 files were downloaded on his computer, in the recycle bin, or were active temporary internet files. Id. at 18794. Between thirteen to seventeen thousand images were “Deleted Temporary Internet Files,” aka, in the “cache.” Id. at 18794. Over defense objection, the district court calculated attributed a number of images that produced a seventy month sentence. Id. at 18796.

Issue(s): Of many issues, these two are of greatest interest:

1. Conditional pleas: “Kuchinski complain[s] that Federal Rule of Criminal Procedure 11(a)(2) was an unconstitutional violation of the separation of powers doctrine because permitting a conditional plea was an issue that should be left to the courts alone.” Id. at 18797-98.

2. Counting child porn images: “Did Kuchinski knowingly receive and possess the images in [the internet cache], or, rather, does the evidence support a determination that he did?” Id. at 18804.

Held:

1. Conditional pleas: “[Kuchinski] is wrong.” Id. at 18798. “We perceive no danger that a ‘commingling of functions,’ if commingling it be, will result in an encroachment on one branch or an improper aggrandizement of another branch.” Id. at 18799.

2. Counting child porn: “There is no question that the child pornography images were found on the computer’s hard drive and that Kuchinski possessed the computer itself. Also, there is no doubt that he had accessed the web page that had those images somewhere upon it, whether he actually saw the images or not. What is in question is whether it makes a difference that, as far as this record shows, Kuchinski had no knowledge of the images that were simply in the cache files. It does.” Id. at 18805. “Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.” Id. at 18806.

Of Note: In Kuchinski, the Ninth thankfully limits its sloppy Romm decision from earlier this year. See Romm blog here. In Romm, Judge Bea upheld a conviction when child porn was discovered in the internet cache – despite a compelling counter-argument from Kleinfeld in Gourde. See United States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006). In Kuchinski, Judge Fernandez requires evidence that the user actually accessed and used files in the internet cache – not likely for the average child porn consumer.

Forensically speaking, Kuchinski will be a much more common scenario than Romm – users sophisticated enough to be rummaging through the internet cache will probably have other, more clever ways to store images.

How to Use: Give Kuchinski to your forensic expert, and ask him or her to determine if internet cache images have been accessed and/or stored outside of normal browser usage. If not, cut those images out of the guideline calcs.

For Further Reading: Here’s a glossary for this Fernandez decision:

Gallied: “Hurried, vexed, over-fatigued, perhaps like a galley slave.” See definition here; (Slip Op. at 18799).

Allonge: “In fencing, an allonge is a thrust or pass at the enemy.” See definition here; (Slip. op. at 18797).

Valetudinarian: 1. A weak or sickly person, especially one morbidly concerned with his or her health. adjective: 1. Sickly; weak; infirm. 2. Morbidly concerned with one's health. See definition here; (Slip. op. at 18806)


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

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US v. Kuchinski, No. 05-30607 (11-27-06). Cache as cache can? The 9th said "no" in the Deleted Temporary Internet Files or computer cache files context. A defendant may have pornographic images on his computer cache files but that should not count against him for guidelines purposes. The 9th (Fernandez, joined by Kozinski and district judge Carney) confront here pornography receipt and possession convictions and sentence. The main issue is whether images on the cache files count; the 9th explains how images get on these cache files, but does not necessarily mean that the defendant viewed them. A "cache and release" of images does not mean knowledge. The case is remanded for resentencing because of the guideline error.
On other issues, the 9th affirms the convictions. The defendant raised a number of constitutional separation of powers arguments, but the 9th held that failure to allow a conditional plea does not shake the doctrine to its core. The 9th also turns back a challenge to the PROTECT ACT's restriction of three judges on the Sentencing Commission (which supposedly does not perform -- gasp -- judicial functions).

This opinion was authored by Fernandez, so we get wordsand phrases such as "valetudinarian grasp", "gallied ", and "daedalian arguments."

US v. Lopez, No. 05-50433 (11-30-06). In Doyle v. Ohio, 426 US 610 (1976), the Supremes make clear "that silence will carry no penalty." Moreover, silence cannot be used to impeach the defendant's explanation. The Supremes, though, also note that a violation is cured if a court sustains a timely objection, gives a curative instruction, and tells the jury to disregard the question. Things get a bit dicey when the defendant raises a duress defense, and the prosecutor question post-arrest/pre-Miranda silence. Here, the defendant argued that he purposely came across the border to be arrested so as to avoid a drug dealer out to get him. The prosecutor's questions skipped back and forth between pre-Miranda and post-Miranda time frames. The defendant objected, but the court overruled, reasoning that it was pre-Miranda questions. Yet, this was not clear from the questions, and the agent was involved in both phases of the questioning. The 9th easily found error, and then just as easily concluded that it was harmless because the questions were relatively brief, and the focus was on the failure of the defendant to present himself to police err anyone else sooner than the arrest. The 9th also found no due process violation because some Doyle objections were sustained, and the 9th found no error in the jury instruction nor in sentencing.